Solis v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0002

DALE SOLIS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.

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JUDGES:	KYROU, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2018
DATE OF JUDGMENT:	31 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 275

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under the age of 16 – Offending over several months – Whether trial judge erred in failing to exclude evidence from VARE that complainant could not recall – Whether trial judge erred in refusing to give jury unreliable witness direction in relation to evidence in VARE that complainant could not recall – Whether trial judge erred in refusing to give direction in relation to prosecution’s failure to call relevant evidence – Whether combination of errors amounted to miscarriage of justice – Leave to appeal on grounds 1, 2 and 4 refused – Leave to appeal on ground 3 granted but appeal dismissed – Evidence Act 2008 s 137 – Jury Directions Act 2015 ss 32, 43.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F H Todd	Pica Criminal Lawyers
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
McLEISH JA
T FORREST JA:

The applicant pleaded not guilty in the County Court to an indictment containing five counts of sexual penetration of a child under the age of 16 contrary to s 45(1) of the Crimes Act 1958. He was convicted of all five charges. On 12 December 2017, he was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Sexual penetration of a child under the age of 16 10 years’ imprisonment 30 months’ imprisonment 9 months

2 Sexual penetration of a child under the age of 16 10 years’ imprisonment 42 months’ imprisonment 9 months

3 Sexual penetration of a child under the age of 16 10 years’ imprisonment 4 years’ imprisonment Base

4 Sexual penetration of a child under the age of 16 10 years’ imprisonment 4 years’ imprisonment 9 months

5 Sexual penetration of a child under the age of 16 10 years’ imprisonment 3 years’ imprisonment 9 months

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 3 years 6 months

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 48 days

Other relevant orders:
Sentenced as a serious sexual offender in relation to charges 3, 4 and 5.

Registration under the Sex Offenders Registration Act 2004 for life.

Order pursuant to s 464ZF(2) of the Crimes Act 1958 for the taking of a forensic sample.

The applicant seeks leave to appeal his conviction on the following grounds:

Ground 1:The learned trial judge erred in failing to exclude the evidence from the VARE that the complainant was unable to recall under cross-examination and re-examination during the special hearing. That is, all the evidence but for that relating to charge 4.
Ground 2:The learned trial judge erred in refusing to give the jury an unreliable witness direction in relation to the evidence in the VARE that could not be recalled by the complainant at the time of the trial.
Ground 3:The learned trial judge erred in refusing to give a direction in relation to the prosecution’s failure to call relevant evidence from [CS] and [BB], pursuant to s 43 of the Jury Directions Act 2015.
Ground 4:The aggregate effect of the errors (or defects) alleged in grounds 1 – 3 occasioned a miscarriage of justice.

Background

At the time of offending, the applicant was 18 years old. The complainant was 12 or 13 years old.[2] The applicant’s father commenced an intimate relationship with the complainant’s mother in about October 2014. In November 2014, he moved into the house of the complainant and her mother in Maidstone. The applicant, at first, occasionally visited that house, but moved in in late November 2014. Thus, this three bedroom residence was accommodating five people by late 2014 ― the complainant, her mother and brother (aged 15), and the applicant and his father.
[2]The complainant turned 13 in January 2015, in the middle of the 3 month offending period.

Prosecution evidence
Complainant’s evidence-in-chief

The complainant gave evidence in a special hearing on 24 October 2017.[3] She adopted the contents of a VARE tape as her evidence in chief. The VARE interview was conducted on 24 April 2015. At that stage, the complainant was 13 years and 3 months old. She said the following:
[3]The first special hearing was completed without the complainant being sworn. After discussion, her Honour ruled that a fresh special hearing be conducted. The product of this second special hearing became the complainant’s cross-examination at trial.

· Re Charge 1 (Sexual penetration of a child under 16)

On a night between 27 November and 31 December 2014 at about 2:00 am, the complainant went to the lounge room where the applicant was sleeping. He asked her what she was doing. She said she was ‘looking for something’. He pulled her onto his bed, removed her clothes, kissed her breasts and penetrated her vagina with his penis. ‘He kept going until 6:00 am …’.
·Re Charge 2 (Sexual penetration of a child under 16)
Between 1 and 31 December 2014 at about 2:30 am, the applicant went into the complainant’s bedroom and woke her. He led her back to his bed. The complainant was menstruating. He removed her pyjamas, placed a towel on his bed and lubricated his penis. He then penetrated the complainant’s anus with his penis. He ejaculated onto a tissue. The complainant was crying. He carried her back to her bed.
·Re Charge 3 (Sexual penetration of a child under 16)
Between 1 and 29 February 2015, the complainant’s friend, J, was staying over. During the night, the applicant woke the complainant and led her to the bathroom. He took off her lower clothing and sat her on a shelf. He penetrated her vagina with his penis. The complainant was crying.
·Re Charge 4 (Sexual penetration of a child under 16)
Between 1 and 29 February 2015, the applicant entered the complainant’s bedroom at night and woke her. He led her from the bed, undressed her, turned her around so that she was facing a wall of her bedroom. He masturbated himself and then penetrated the complainant’s vagina from behind. He ejaculated onto the wall and her buttocks. He cleaned himself with a tissue.
·Re Charge 5 (Sexual penetration of a child under 16)
Between 27 November 2014 and 26 February 2015, the applicant was in the complainant’s bedroom. He placed a pillow over her face as she lay in bed. He removed her shorts and orally penetrated her vagina for approximately 10 minutes.

Complainant’s cross-examination

The cross-examination of the complainant was conducted at the special hearing that we have referred to in the preceding paragraph. The following paragraphs outline the substance of the complainant’s evidence in cross-examination.

Before she met the applicant, the complainant was living at the Maidstone house with her mother, MM, and her brother, BB. In 2014, her brother was not at school and he used to stay at home and play computer games. She thought he was home pretty much all the time, 24 hours a day. Her brother was aged 20 in 2017. The complainant did not disagree that her mother was not working in 2014, but she could not recall whether her mother was at home a lot at about that time. She agreed that her mother was usually home at night.

The complainant agreed that she was having some difficulties at school in 2014, which involved being physically and emotionally bullied, and she began self-harming. In mid-October 2014, her mother became aware of her self-harming and regularly checked her room to make sure she was not hurting herself. The complainant agreed that she and her mother were fighting a little at around this time, and that she became distanced from her mother. In September 2014, the complainant spent a night in hospital and subsequently began seeing a psychologist (Anita). Her mother took her to these appointments.

In about October 2014, the complainant’s mother started an intimate relationship with CS. CS began staying at the Maidstone house, and after a short time, he moved in with the complainant’s mother.

The complainant said that she had met CS’s eldest son, the applicant, a couple of times in October. She agreed that on two occasions, the applicant came to the house before he and his father moved in. She agreed that on 7 November 2014, she had an appointment with Anita and told her that the applicant had been displaying sexualised behaviour towards her. Anita reported this to the complainant’s mother and explained that it was her obligation also to tell the police and the Department of Human Services (‘DHS’). The complainant agreed that she discussed this with her mother, although it was not much of a conversation. She denied her mother said to her that she was unhappy about DHS becoming involved.

The complainant agreed that a few days later, she told her mother that she had fabricated the allegations against the applicant and that she did not wish to talk further about it. The complainant denied that her mother asked her why she made these things up and denied that she told her mother she had lied because she did not want CS to move in with them. She said she gave no reason to her mother for fabricating the allegations, she only said ‘I made it up’.

The complainant said she thought she told Anita that she fabricated the allegations against the applicant. The complainant said Anita told her that she would have to tell the police, but the complainant was unsure as to whether Anita had done so. The complainant said she had no recollection of the police calling and speaking to her about what she told Anita. She said she was never present when her mother spoke to the police about what she had told Anita.

The complainant said that CS moved into the Maidstone house at about the end of October 2014, and she agreed that her mother asked her on multiple occasions if she had any problem with the applicant moving in. She further agreed that she told her mother that she did not have a problem with the applicant moving in, and said that it was fine and that nothing had happened between her and the applicant.

The applicant himself moved in at the end of November. At this stage, the complainant was not going to school and she was still seeing Anita. She said she could not recall whether she was still having fights with her mother at around this time. She said that after CS and the applicant moved in, they both assisted her mother from time to time to search her room for razors and other things that she might use to hurt herself. She agreed that this made her feel uncomfortable and annoyed, and that her space had been invaded. She said this was for her safety and that this was explained to her.

The complainant said that after the applicant moved in, her mother made it a rule that, if she wanted to go out and socialise, either the applicant or her mother would have to go with her. She agreed that she preferred the applicant going out with her rather than her mother, because he was 18 years old and it was less embarrassing for her to be seen with him than her mother.

The complainant said she was the target of people approaching and threatening her, even when the applicant was out with her. She said the applicant was pretty important in standing up for her when this happened. The complainant agreed that on occasions, the applicant protected her when she was with him. She agreed that the flip side of this was that the applicant became quite bossy and began telling her what she could and could not do. She agreed that she did not like the applicant bossing her around, it annoyed her, although she could not recall having had fights with the applicant about this issue.

The complainant agreed that the applicant had a fiancée when he moved into the Maidstone house, and she further agreed that he would sometimes stay over at his fiancée’s house and that his fiancée would sometimes stay at the Maidstone house. The complainant said she thought the applicant’s fiancée was staying at the Maidstone house every weekend or every second weekend. The complainant agreed that the applicant stayed at his fiancée’s house most weekends. She said that she and the applicant’s fiancée did not speak and she did not really know her.

The complainant agreed that she often slept in the applicant’s bed. She denied that this was her choice. She said her mother and CS told her off for sleeping in the applicant’s bed. She told her mother that she slept in the applicant’s bed because it stopped her from self-harming, which she said in evidence was a true statement.

The complainant said she had no recollection of a phone call that Detective Burke made to either her or her mother on 3 December 2014. She said she did not remember telling Detective Burke that she made up the story she told to Anita because she did not want CS to move into the house.

The complainant agreed that she had watched her VARE tape the previous day. She said she could recall the last occasion when the applicant woke her up, pinned her against the wall, held her wrists with one hand and then sexually abused her while she was facing the wall. She said that it was vagina and penis sex. She said that this was the most recent occasion that she mentioned in her VARE tape (charge 4). She agreed that she did not have an independent memory of other occasions that were mentioned in the VARE tape. She further agreed that she could not recall those specific times and she did not remember any specifics from those occasions. She said that she could not say when those other occasions happened in time or where they happened. She said she had ‘a somewhat recollection’ of them. In relation to the occasion that she had described and which she did remember, she said that it happened a few weeks before the applicant and his father moved out of the house in February 2015.

The complainant said that on that occasion, she was in her bed sleeping and the applicant came into her room. It was just past 12:00 am. She agreed that her mother, CS and her brother would all have been at home at that time. She said that her brother’s bedroom was right next to her bedroom and her mother’s bedroom was across the hall from her bedroom. She said there was a bathroom between her mother’s bedroom and her bedroom. She said she could not remember what either she or the applicant were wearing on this particular occasion. She said the applicant used one hand to hold her arms and he undressed her with the other hand. He did not have a hand over her mouth, so she would have been able to call out should she have wished to do so. She agreed that she did not call out and she was unsure as to how long this incident went for.

The complainant denied there were occasions where she tried to kiss the applicant. She said she had no recollection of an incident in early January 2015 in which her mother was standing in the hallway at around 1:00 am and saw the applicant lying on his bed in the lounge room and her sitting on the bed. She said that she had no recollection of leaning down and giving the applicant three small kisses. She did not recall this incident or her mother charging into the room and saying, ‘What’s going on here’. The complainant disagreed that this was an occasion where she chose to kiss the applicant. When it was put to her that this was one of many occasions where she deliberately kissed the applicant, she said that she was forced to do this. She said that she did not remember telling her mother when she came in that it was a dare. She said she did not remember the applicant telling her mother, ‘We knew you were standing there’. She agreed that her evidence was that she did not remember the incident but she did remember that she was forced to kiss the applicant. She said she did not remember whether she was seeing Anita in January 2015.

It was put to the complainant that her mother said that there was a further incident in February 2015 at about 8:00 pm, in which she saw the complainant sitting at her desk in her room with the applicant standing over her and then she saw the two of them kissing. It was put that her mother barged in and asked them what they were doing. The complainant said that she had no recollection of this incident and she had no recollection of telling her mother that she was mistaken and that they were not kissing. She said she had no recollection of her mother kicking the applicant out of her room and she had no recollection of slamming the door herself.

The complainant went on to say that in 2015, there was a plan for the family to move to Wallan, and part of that plan was that she might start at a new school. At this point, she was not attending school and she was staying at her friend C’s house regularly. The complainant said she was really sick of the applicant by this point. She denied she was sick of him bossing her around and telling her what to do. She said she did not recall her mother saying to her, ‘You don’t have to tell him anything, he is not your father’.

The complainant agreed that she was frightened of moving to Wallan and starting at a new school. She said she decided in late February to tell her mother what had happened with the applicant. She did this by way of a phone call to her mother from home. She agreed that she told her mother that the applicant had been sexually abusing her but she did not go into any details at that point. She said that she remembered her mother asking her some questions and she remembered hanging up the phone on her mother. Ultimately, the complainant said that she, her mother, her brother and CS moved to Wallan without the applicant. The complainant said that both before and after they moved to Wallan, in February and in March, her mother asked her on many occasions what had happened with the applicant and she did not give her mother any details.

The complainant said there was a social worker, Erin, in Wallan, who became involved with the complainant and her mother. She said Erin supported her and her mother and assisted them with working through problems in their relationship. The complainant said that she was aware that Erin was there to help her with some specific issues in that relationship, such as obeying curfews. She said that she remembered telling Erin in March 2015 that the applicant had touched her inappropriately. She said that she did not remember telling Erin that it did not go as far as rape. She agreed that after her experience with Anita, she knew that Erin was going to have to report this and take the situation further. She knew that Erin would have to tell her mother and she knew that Erin would have to tell the police.

The complainant agreed that she ultimately made a statement to police in April 2015. She said she wrote down some notes before she had the appointment with police to help recall her thoughts. She said this was her idea and no one told her to do it.

It was put to the complainant that she had never had sex with the applicant and she denied this. She disagreed that the applicant did not have sex with her in her room up against the wall or anywhere else. When it was put to the complainant that none of the sexual offending took place, she disagreed and said, ‘It did all happen’. The complainant disagreed that she developed a crush on the applicant and she disagreed that she asked him whether he would be her boyfriend. She did not agree that she became angry with the applicant when he said she was too young for him.

It was put to the complainant that she had lied to her mother because she did not want the applicant to move with her to Wallan. She denied this. It was then put to her that she lied to Erin because she did not want to go back to school. She denied this also. The complainant agreed that the applicant did not ultimately move to Wallan with them, and that she did not go back to school for some months after this. She repeated that she did not lie.

Complainant’s re-examination

In re-examination, the complainant agreed that she said she did not recall the specifics of the allegations except the last incident. She agreed that she had some recollection of the other incidents, just not a specific recollection. She said that she knew there were other occasions of penis/vagina sex in addition to the last incident that she could specifically recall, but she did not remember what happened. In relation to other types of sex, for example, oral and anal sex, she did not recall anything other than she knew that it happened.

She said that when she spoke to the police in April 2015, her memory of what happened was better because it was fresh in her memory. She said her evidence to police in her VARE tape was the truth. The complainant said she told her mother and Anita she had made up the allegations because she was afraid of the applicant as he used to threaten her. She said he threatened to hit her or get his dogs onto her. She said she could not recall the specific words that the applicant used when he threatened to hit her, but said he threatened her whenever it was possible in circumstances where she denied what he said or told him no. Towards the end of February, when the family was about to move to Wallan, she would say to the applicant, ‘Stop it’ or she would try to avoid being home by staying at C’s. He would say to her, ‘Oh if you tell anyone I’ll get my dogs onto you’. He did not have dogs at the house, but he told her he had pit bull terriers somewhere else. C was the complainant’s closest friend at the time. She thinks she was staying at C’s house at the beginning of February.

The complainant said that she told her mother that it was okay for the applicant to move into the Maidstone house because she did not want anyone to know that he was sexually abusing her. She said she did not want anyone to know this because she was ashamed. She said that when the applicant moved into the house, his bed went into the lounge room. She agreed that she told her mother when she was sleeping in the applicant’s bed, that it was to stop her from self-harming. She said the applicant made her tell her mother this. He used to make her sleep in his bed and she was afraid of what he would do. He made her sleep in his bed by threatening to hit her. When he made threats like that, it made her feel intimidated, scared and anxious about what he would do to her. This had a negative impact upon her and the decisions she was making at the time.

The complainant agreed that she said that she did not remember the particular occasion where her mother saw her giving the applicant three quick pecks or kisses. She agreed that she said, ‘I was forced to kiss [the applicant]’. She said he yanked her down to kiss him. She did not remember the conversations that were happening but she remembered the actions and her mother walking into the room and then walking out. She said that she could only remember one occasion of the applicant yanking her down to force her to kiss him. After she told her mother over the phone that the applicant had been behaving in a sexually inappropriate way towards her, she did not tell her mother any details thereafter. She said the answers she gave in her VARE in evidence were the truth.

Evidence of MM

MM is the complainant’s mother. She said the complainant was born in January 2002. She said that she met CS in October 2014 and they became intimate partners. She said that CS had children of his own and that his eldest son, the applicant, was 18 at the time. CS also had two younger children and she said that when she met CS, he was living with his former wife and their three children in Sunshine West. She said that a couple of weeks after she met and formed a romantic relationship with CS, he began to stay over at her house in Maidstone. This was in October 2014. She could not recall how frequently he stayed over at the beginning. She said that before she met CS, she had one bedroom, and the complainant and BB (the complainant’s brother) each had their own bedrooms. She said that in October 2014, the complainant was having trouble being bullied at school and it had become violent. She said that this had had a severe impact on the complainant, who was angry, scared and isolated because she was not able to leave the premises without fear of being assaulted. MM said that the complainant was not able to attend school at the time because the bullies were actually at school. They were going to leave the Maidstone house because of this issue.

There was discussion between herself and CS in relation to the living arrangements in October 2014. It was agreed that if things got to the point where the bullying got too bad, she and the complainant would temporarily move into his house until they could find another place. She discussed this with the complainant but she could not recall exactly when this was.

MM said the complainant told her that she did not want to do this but she did not go into details as to why. Ultimately, they did not move to CS’s premises. Instead, later in November, CS and the applicant ended up moving into the Maidstone house. She said that up until the time he moved in, CS was staying at the Maidstone house a few nights a week, and the applicant visited the house twice in October and in early November. She could only remember these two occasions.

She said that at the time, the complainant was seeing a psychologist, Dr Anita Chila. She used to take the complainant to her appointments with Anita and she would stay in the waiting room during these appointments. She remembered a particular appointment where, towards the end, Anita called her in, and without going into detail, said that the complainant had disclosed that the applicant had touched her inappropriately. Anita told her that she would have to inform DHS and the police. After the appointment, MM and the complainant drove home. She said she tried to ask the complainant about what had happened and she told the complainant that she would have to speak to the police. The complainant then recanted and said it did not happen. MM could not recall the exact words that the complainant used, other than her communicating that it did not happen. When the complainant told her it did not happen, MM called Anita to advise her. Anita said that regardless, she still needed to inform the police.

MM remembered that the police called her on her mobile phone as a result of Anita’s notification. She said that she spoke with the police officer, as did the complainant, because she handed the phone to the complainant. She did not hear the conversation between the complainant and the police officer because she walked away to give the complainant some privacy. She said that that was the extent of her interaction with the police as a result of the notification made by Anita.

MM went on to say that both CS and the applicant moved into the Maidstone house around the end of November. She said she had had a conversation with the complainant about the fact that this was going to happen and the complainant said it was fine if the applicant stayed at the Maidstone house.

When the applicant moved into the house, the lounge room became his bedroom. She said that she would constantly find the complainant sleeping in the lounge room in the applicant’s bed. She would find her there at 8:00 am or 9:00 am and occasionally found her there during the night. She had conversations with the complainant about how she should not be sleeping there because it was inappropriate. She also had conversations with the applicant and told him that it was inappropriate and that the complainant should not be sleeping there.

The complainant, in response to being told it was inappropriate, would get angry at her mother. The complainant said that she felt safer in the applicant’s bed because of all the bullying and self-harming that she was doing. The applicant told her that the reason he let her sleep in his bed was so that the complainant would not self-harm. MM said that she continued to make observations of the complainant and the applicant. She said that in January 2015, she saw them kiss in the lounge room. She said she was standing in the hallway facing the lounge room and the door was open. She saw the applicant lying down on his bed and the complainant kneeling on the bed. She was trying to listen to what they were saying but they were whispering so she could not hear them. The next thing she saw was the complainant move down and kiss the applicant three times. This interaction did not last for long; the kisses were more like pecks on the lips. She said that she walked in and started yelling at them saying, ‘What the hell are youse doing’. She thinks that the applicant responded by saying, ‘It was a dare’ and the complainant said, ‘Nothing is going on’. The interaction ended when the complainant went to her room and MM went to the kitchen and had a coffee. She said she went back to bed and when she got up in the morning, the complainant was back in the lounge room.

She said that she did not speak to the complainant again about the kiss but she did speak to her on numerous occasions about sleeping in the applicant’s bed. The complainant did not say anything different about why she was in the applicant’s bed. MM said she witnessed further interaction between the complainant and the applicant after this. She said she did not remember whether this was in January or February, but it took place in the complainant’s bedroom. She said she was standing in the hallway, heading towards the toilet which was next to the complainant’s room. She saw the complainant sitting on a chair at her desk and the applicant was standing up over her to her side. She was not sure but to her it looked like the applicant was kissing the complainant. MM said she could see the backs of both the complainant and the applicant because the desk was against the far wall. To her it appeared as though they were kissing. When she saw this she yelled, ‘What the hell do you think you’re doing’. The applicant said, ‘Nothing’. MM said that she replied, ‘It didn’t look like that to me, it looks like you’re kissing’. The applicant said, ‘No we’re just talking’. MM said to the applicant, ‘Well you shouldn’t be in [the complainant’s] room. Get out’. The applicant then left and the complainant got up and slammed the door in her mother’s face.

MM said she did not speak to the complainant about this again. She said at this stage in January/February 2015, she was still finding the complainant in the applicant’s bed. She said that around 17 February 2015, she received a call and found out that she had a house to move into in Wallan. She said that the plan was for her and her two children and CS and his two younger children (not the applicant) to move to the house. She said the applicant was not going to move in. She said that the decision that the applicant would not move into that house was made prior to getting notice that the house was available. She said that she made that decision and CS agreed with it. She did not communicate that decision to the complainant until about a week before they moved.

MM said that shortly before they moved to Wallan, the complainant was spending a bit more time at her friend’s house. She said that up until a week and a half before they moved into Wallan, the complainant was basically living at this friend’s house. She said she had regular phone contact with her at the time.

MM said that at around mid-February, the complainant called her and asked when they were moving. She also asked whether she and her friend could stay at Wallan. At this stage, MM was in the car with CS. In that conversation, the complainant said that she did not want the applicant to move with them because he had raped her. MM said words to the effect of, ‘You can ask someone else to move in’. She said she could not say much because CS was with her in the car. At the time, she did not question the complainant in order to get further information. She said that her priority at the time was to try to get the complainant out of the situation and once they had moved in and settled down, to try to organise to have Family Services involved with the complainant. She said that the complainant was never able to talk with her about the detail of what had happened.

Ultimately, they moved to Wallan and successfully linked the complainant up with a support worker, Erin Peterson. MM said she thought that the complainant started seeing Erin Peterson around the end of March. She became aware that the complainant told Erin what she said the applicant had been doing to her. She thought this took place at the first meeting that the complainant had with Erin. At the same time, Erin came back with the complainant and told MM what the complainant had disclosed. Erin informed MM that she would need to tell the police. Notification to the police was made and about a month later, the complainant was interviewed by the police. Finally, MM said that although CS moved to the house in Wallan, the relationship ultimately did not succeed.

In cross-examination, MM gave evidence about the layout of the Maidstone house and drew a map (exhibit 1). Early in 2014, before the applicant and CS moved in, she lived at the Maidstone house with the complainant and the complainant’s brother, BB. She said that BB was about 17 years old at the time and he was not in school, he liked to play computer games a lot and was home 24 hours a day, seven days a week. She said that at this time, she was not working and she was home quite a lot. She was usually home at night and slept at home every night. She said that the complainant was not at school from September 2014, but in January and February 2015 a friend of the complainant, J, stayed once or twice. He slept in the complainant’s room. The complainant’s friend, C, stayed a couple of times also. When she stayed, C slept in the complainant’s room.

MM said that CS moved into the Maidstone house towards the end of November in 2014. At that stage, he was working as a truck driver. He worked from 6:00 am until about 3:00 pm each day and was usually at home at night. She said that because of the complainant’s difficulties with school in 2014, the plan was to move to Wallan so she could start at a new school. There were two plans while they were waiting to find out whether there was a house they could move into at Wallan. One of those plans was potentially that they would move to CS’s house in Sunshine West, and the other plan was that CS might move into the Maidstone house. In the event, the latter plan was chosen.

MM said the first time these plans were discussed, the complainant was not keen on either of them. The second time they were discussed, the complainant did not say anything. MM said the complainant started seeing Anita after a brief stay in hospital in September 2014. She agreed that the complainant was behaving in a challenging way towards her in 2014 and that between October and November 2014, their relationship was quite strained. They were having disagreements and the complainant was often rude to her. Some of the disagreements related to the complainant going out at night when she was not supposed to.

MM agreed that she was concerned about the complainant at this time because she was self-harming. Once the applicant and CS moved into the house, they helped in making sure that there was nothing available in the complainant’s room that she could use to hurt herself. She agreed that she was keeping a pretty close eye on the complainant at around this time because she was worried about her. She agreed that she asked CS and the applicant to do the same.

Before the end of November, when the applicant moved into the Maidstone house fulltime, he had only visited the house twice. She had picked him up from home and taken him to the Maidstone house because he had had a fight with his mother on one occasion. She said that on those particular two occasions, CS was not there, and it was her, BB, the complainant and the applicant.

After the appointment with Anita on 7 November, at which the complainant made disclosures about the applicant’s behaviour towards her, MM said she tried to discuss with the complainant what had happened with Anita. She said she did not discuss the fact that Anita would have to report the disclosures to DHS and the police, because the complainant already knew this. She did not say anything to the complainant about being concerned about DHS getting involved with the family. MM said that later that day, the complainant told her that the things she told Anita did not happen. She disagreed with the proposition that the complainant told her that she only made these things up because she did not want CS to move in with them. MM also disagreed that the complainant said she made these things up because she did not want to move in with CS and his two children in Sunshine West.

Ultimately, MM called Anita and said ‘[the complainant] has told me she’s made it all up’. She could not recall whether she offered Anita a reason as to why the complainant made these things up.

She said she was contacted by the police after the disclosure was made to Anita. She did not recall the name of the police officer or the date, but she remembered the conversation took place over the phone and it was just once. She said she could not recall the conversation, but would have told the police officer that if she thought the disclosures were true, then she would have brought the complainant straight to the police. She remembered leaving the room when the police officer spoke with the complainant and she agreed that she did not hear what the complainant said to the police officer.

MM agreed that she was a little apprehensive about the applicant moving in and she asked the complainant about five times whether it was okay for the applicant to stay. She agreed with the proposition that each time the complainant said, ‘It’s fine, nothing happened between us’. For this reason, MM said to CS that it was fine for the applicant to move in, even though she said that she was watching the applicant and the complainant pretty carefully. She agreed with the proposition that the complainant was vulnerable at this time, and on a number of occasions she tried to question the complainant to make sure everything was okay.

She agreed that she was being vigilant and she was making it easy for the complainant to open up to her if something was wrong. MM further agreed that in relation to the times she found the complainant sleeping in the applicant’s bed, she confronted both of them about this. She agreed that the applicant may have said something like, ‘She has to sleep in my bed, I’m helping her’. She agreed that the complainant supported this, saying, ‘I’m sleeping in [the applicant’s] bed so that I won’t cut myself’. Every time she asked the complainant whether everything was okay between her and the applicant, the complainant assured her that everything was fine and she felt safer sleeping in his bed. Once the applicant moved in, there was an arrangement that the complainant could go out as long as either MM or the applicant were with her. MM agreed that the applicant stepped into this ‘big brother’ role by protecting the complainant when they were out and about, and she felt a measure of comfort knowing that there was someone there to protect the complainant against the schoolyard bullies.

The complainant, according to her mother, attempted suicide on 27 December 2014. MM was extremely concerned about her after this and agreed that she would have been watching her very closely. MM decided that once a house became available in Wallan, the family would move there with CS and his two younger children, but that the applicant would not move there. She said the applicant was being aggressive towards the complainant. She remembered saying to the complainant, ‘You don’t need to tell him what you’re doing or where you’re going, he’s not your father’. She agreed she said this because the applicant was bossing the complainant around.

Before they moved to Wallan in February 2015, MM had a phone call with the complainant when she was in the car with CS. The complainant told her that she did not want the applicant to move to Wallan with them. MM agreed that at this point, she had not told the complainant that the applicant was not moving to Wallan. She was not sure exactly how it came up in the conversation, but the complainant told her that she did not want the applicant to move in because he had raped her. She said she was not able to ask the complainant any further questions about this, but she disagreed that the complainant hung the phone up on her.

MM disagreed with the proposition that the complainant’s challenging behaviour became worse after they moved to Wallan. She agreed that she said in the committal hearing that the relationship between her and the complainant became worse after they moved to Wallan. She agreed that their relationship did become worse at that point. When they moved to Wallan, they had the assistance of a counsellor, Erin. Erin helped with the relationship between MM and the complainant, and also helped to prepare the complainant to go back to school. The arrangement was that MM would meet with Erin separately to the complainant. At the first meeting, MM said Erin and another staff member came to her house. She initially spoke to them alone and then the complainant joined them. She said the complainant was alone with Erin in the meeting in which the complainant made the disclosures about the applicant. MM agreed that previously, she had been on her own in meetings with Erin and had not told Erin that she was concerned about the complainant’s previous disclosures relating to the applicant. MM agreed that in February, neither before nor after they moved to Wallan did she contact the police about what the complainant had told her. She said she never contacted the police herself before the complainant made the disclosure to Erin. She said the first contact she had with the police was when they phoned her after Erin had notified them of the complainant’s disclosure.

In re-examination, MM said that on the two occasions where she picked up the applicant and took him back to her house prior to the applicant moving into the Maidstone house, she estimated that the applicant was at the house for roughly two hours, perhaps a little more. She said the first time the applicant went to the house, he had a coffee with her and then he met the complainant, went into her room and the door was shut. The second time the applicant went to the house, he went straight to the complainant’s room and shut the door. She said that these two visits occurred before the complainant spoke to Anita. MM agreed that she described the applicant as being aggressive towards the complainant. She said his tone of voice, his demands that she must get permission from him before she left the house and tell him exactly where she was going, and the fact that she observed the applicant ‘getting in the complainant’s face’, were all signs of that aggression. She said, for example, the applicant would stand there and say to the complainant in an aggressive tone, ‘No, you must tell me where you’re going’.

Evidence of Dr Anita Chila

Dr Anita Chila is a clinical psychologist who in 2014 worked with the Royal Children’s Hospital. She has a Doctorate in Clinical Psychology and has worked in the field of child and adolescent mental health for almost ten years. Dr Chila agreed that she saw the complainant in October 2014. She said she remembered the complainant and her mother, who transported the complainant to appointments. She said that when she saw the complainant, her mother usually sat in the waiting room. She thought she probably saw the complainant about five times. On 7 November 2014, she remembered the complainant telling her that the applicant had made her feel uncomfortable in that he had engaged in sexualised behaviours towards her. She agreed that the words ‘sexualised behaviours’ were her own and not those of the complainant. She said she did not remember the specific words the complainant used, and she said the complainant found it difficult to provide specific details about that behaviour. Dr Chila said that if a young person discloses something that indicates that someone has been unsafe towards them, or if they are in an unsafe situation, she is obliged to break confidentiality and talk to the parent. On that day, she informed the complainant’s mother of the complainant’s disclosure. She also told both of them that because the complainant was under-age, she would have to notify DHS. Dr Chila said she received a phone call from the complainant’s mother, either when they were driving home or after they had arrived home. The complainant’s mother told her that the complainant had felt uncomfortable about the consequences of the disclosure and that she did not want DHS notified. Notwithstanding this, the notification was made with DHS officers via telephone later that day. Dr Chila said it was not until a little while later that she spoke to police officers about the matter and she was contacted by police to provide a statement.

In cross-examination, Dr Chila agreed that she said at the committal hearing that one of the five appointments that she had with the complainant was on 14 January 2015. She said that, in relation to the evidence she gave, the complainant’s mother told her the complainant felt uncomfortable about the consequences of the ‘disclosure’, she interpreted this as meaning that the complainant felt uncomfortable about DHS being notified. Dr Chila said she did not know exactly what the complainant was thinking because it was her mother that she was speaking to on the phone, but her guess was that the complainant was feeling anxious about having disclosed that information. That anxiety was not necessarily about DHS getting involved, she said it was more complex than that. Dr Chila said the complainant probably did not really understand or was worried about the implications.

In re-examination, she agreed that it was her interpretation that the complainant was feeling anxious. She said she did not speak to the complainant at all on the phone, she spoke to her mother, who relayed that the complainant was uncomfortable with her notifying DHS.

Evidence of Erin Peterson

Ms Peterson was employed as a Child and Family Services practitioner with Family Care in 2015. Family Care is an organisation that runs programs, child and family services, carer support and disability support. The Child and Family Services practitioner works with families classified as having vulnerable children to try and prevent them from entering the Child Protection system, which is the statutory system. Practitioners work around parenting strategies, child behaviour management and linking families with other relevant services.

In March 2015, Ms Peterson came into contact with the complainant’s family as part of her role with Family Care. The complainant was then 13 years old. She first met the complainant’s mother at their family home. In that meeting, the complainant was at home but Ms Peterson did not actually meet with her.

Ms Peterson said that she had a one-on-one session with the complainant in March 2015 (i.e. after the dates of the alleged offending), in which the complainant told her that her mother’s partner’s son, the applicant, had inappropriately touched her and sexually abused her. She said the words ‘inappropriately touched’ and ‘sexually abused’ were the complainant’s words. She said that she did not get any specific details of these allegations from the complainant and she told the complainant that she would need to report the disclosure. She said the complainant then said, ‘But it didn’t go as far as rape’.

She said she went back to the office and reported the complainant’s disclosures to her line manager, Ms Julia Brownlee. They then consulted with a Community Based Child Protection practitioner, and she reported it over the phone to Wallan Police Station. She said she continued to work with the family for probably the next 12 to 18 months.

In cross-examination, Ms Peterson said that in the first meeting with the complainant’s mother, she agreed that the complainant’s mother did not tell her about any concerns regarding sexualised behaviour between the applicant and the complainant. She said that she first heard about it when the complainant made the disclosure to her.

Evidence of Karin Moore

Ms Moore is a Detective Senior Constable of Police at the Footscray Sexual Offences and Child Investigation Team (‘SOCIT’). She was on secondment there in March 2015. She gave no other relevant evidence in chief.

In cross-examination, she agreed that her role at SOCIT was to investigate matters and speak to all relevant witnesses. She also agreed that the relevant witnesses were not just witnesses who supported the complainant’s case, but rather everyone who might be able to shed some light on the circumstances of the allegations. She agreed that she received a call from Rebecca Harris at the Wallan Police Station, as Ms Harris had received a complaint there in relation to the complainant. Ms Moore said that she took over the investigation at that point as she was a specialised officer. She said that she contacted the complainant’s mother on 23 March 2015 to make inquiries about bringing the complainant into Footscray SOCIT to complete a VARE tape. The VARE took place about a month later on 24 April 2015 at the Wallan Police Station and was conducted by Mr Trickett. Ms Moore was present during the VARE.

Ms Moore said that she did not undertake any steps in the investigation of this matter between 23 March and 24 April 2015. She did not go to the house, take any photos of the house or make any inquiries regarding the architectural plan of the house. She agreed that the complainant mentioned some names in the VARE interview and she said it was possible that the complainant mentioned her brother, BB, and the applicant’s father, CS. Ms Moore said that she thought it was possible that the complainant said in the VARE that both CS and BB were living at the house at the time when some of the offences occurred, and that they were home at various times when the offences occurred. She said it was possible that the complainant mentioned her friend J and said that he was present when one of the offences was committed. She said that she could not recall the complainant saying in her VARE that she immediately complained to J. She agreed that she never made inquiries with BB, CS or J in relation to the complainant’s allegations, even though these people were said to have been present at the time the offences occurred. She said she finished her secondment at Footscray SOCIT on 4 June 2015 and agreed that between 23 March 2015 when this file first landed on her desk, and 5 June 2015 when she finished her secondment, the only thing that she did in relation to the investigation was to undertake the VARE.

Evidence of Hannah Zeffert

Ms Zeffert is a Detective Senior Constable of police stationed at Footscray SOCIT. She commenced at Footscray SOCIT in October 2016. Ms Zeffert agreed that she took over the carriage of the matter on 21 October 2016. The case was initially handed over to Hannah Boyd when Ms Moore finished her secondment in June 2015, then the case was allocated to Ms Zeffert when Ms Boyd went on leave. By the time the case was handed over to her, other officers had done some work on it.

In cross-examination, she agreed that it was fair to say that she had not undertaken any investigations as part of her role in this case. She said she had not made any inquiries with any witnesses in the case, including CS and BB. She agreed that she had read the file and she knew that BB and CS were mentioned in the materials as being people who were present in the house at the time some of the offences occurred. She said that she did not speak to CS or BB because they were not eyewitnesses to the offending. She agreed that she made this decision despite the fact that they may have had something to add to the investigation.

Evidence of Hannah Boyd

Ms Boyd is a Detective Senior Constable at Footscray SOCIT. On 23 October 2015, she conducted a record of interview with the applicant. In that interview the applicant said the following:

· He was 19 years old at the time of the interview. He was basically like the complainant’s big brother.

· He acted in that way by stopping people from bullying her and stopping her from cutting herself.

· He knew the complainant through his father’s relationship with her mother, MM. He didn’t have a good relationship with MM.

· He lived at the Maidstone house in the lounge room.

· He didn’t get along with the complainant and they fought about who ran the house. They battled about who was in charge.

· The complainant had a crush on him which caused him and his ‘missus’ to break up. He told her, ‘I’m not doing nothing. You’re too young. I’m way too old.’ It never happened.

· She wanted him as a boyfriend. He said, ‘Forget it. There’s no chance in hell that I’m going to be your boyfriend.’

· She tried to kiss him. He pushed her away. She walked into her room and cut her arm open.

· He became protective of her.

· The complainant would get into his bed. Nothing sexual happened. He never had sexual intercourse with the complainant.

· Twice the complainant was found in his bed. He had a fight with his father over one of these occasions.

· He lived at the complainant’s house for nearly 11 months. He described an incident where his dog chased the complainant.

· He described an apparent suicide attempt by the complainant. It was caused by him telling her to leave him alone.

· He never hit her. He never touched her in a sexual way.

· The specific allegations were put to him and he denied them.

· By about February 2015, his relationship with the complainant had declined. The complainant and her family moved out of the Maidstone house soon after.

In cross-examination, Ms Boyd said she took over the carriage of this matter on 1 September 2015 from Ms Moore and subsequently handed it over to Ms Zeffert. She said that as part of her role as informant, she looked at what is called an ‘interpose record’. An interpose record is a database on the computer system where police officers enter notes of things that they have done as part of their investigation. It is akin to a running log. Ms Boyd was read the content of a log entry made by Ms Burke on 26 November 2014 as follows:

0920 hoursPhone call to subject’s mother. Phone answered by subject who said her mother was not available. I advised I would call her back …
1450 hoursPhone call to subject’s mother. The subject answered the phone again and said her mother was not available and did not know when she would be.

Ms Boyd agreed that the word ‘subject’ referred to the complainant. She was then read the content of a further log entry made by Ms Burke on 3 December 2014. It read as follows:

1510 hoursReceived phone call from subject’s mother. Stated that the subject does not want to speak to police. She stated that the subject told her that she made up what she said to the mental health worker because she didn’t want to move in with her boyfriend/didn’t want her to move in with her boyfriend. The mother stated that if she thought the matter was true she would bring her to police … Spoke to victim introduced myself and explained the police role. The subject stated that she ― what she said was false and she said it because she didn’t want her mother to move in with her boyfriend. Explained to the subject that she can contact police at any time if she wanted to report a matter.

Ms Boyd agreed that her role with SOCIT at Footscray was as a specialist investigator in sexual offence and child abuse allegations. As part of that role, she obtained a statement from the complainant’s mother. Ms Boyd agreed that in that statement, there was some evidence about the complainant’s mother’s observations of the applicant and the complainant, and the dynamic between them in the Maidstone house. Ms Boyd agreed that whilst the complainant’s mother gave some evidence in relation to seeing the applicant and the complainant kissing, she was not an eyewitness to the charged offences. Ms Boyd agreed that there was evidence that BB was present in the home basically 24 hours a day. She said she never spoke with BB because in neither the statement of the complainant, nor that of her mother, was it alleged that BB was an eyewitness to the offending. She agreed that the complainant’s mother also was not an eyewitness to the alleged offending. She said that CS was present in the evenings and overnight and all of the offences were said to have occurred overnight. She agreed that she never spoke to CS about his observations of the complainant because CS was not said to be an eyewitness to the alleged offending. Ms Boyd agreed that the complainant in her VARE mentioned her friend J, who was said to have been present at the time of one of the offences. She did some investigation and managed to find J and had a conversation with him, which was recorded in her interpose record. Ms Boyd agreed that in that entry she wrote the following:

When asked if he witnessed anything involving the complainant and the accused [J] stated that he [could not recall anything].

Ms Boyd agreed that J was a friend of the complainant at the time of the offending and that he was staying at the complainant’s house at the time that one of the offences was said to have occurred. Ms Boyd agreed that the complainant said that she complained to J immediately after the incident, which was the bathroom incident (charge 3). Ms Boyd agreed that she spoke to J on 27 May 2016 and she noted in her log that he ‘is no longer friends with the complainant’ and that ‘he doesn’t recall anything and does not wish to make a further statement’. When Ms Boyd spoke to J, she told him that the complainant had said that she complained to him of the incident in the bathroom. She agreed that J said words to the effect of not recalling that. She told J the substance of the allegations that the complainant had made against the applicant in relation to the bathroom incident and J said that he did not remember and he did not wish to make a statement. Ms Boyd said that was the end of the inquiry with J. She said that if someone did not want to make a statement, she would never force them to make a statement. Ms Boyd agreed that the applicant had no prior criminal history.

In re-examination, Ms Boyd said at the time she spoke to J, he was a minor. She said the first thing that J said to her was that he was no longer friends with the complainant.

Ground 1 – The learned trial judge erred in failing to exclude the evidence from the VARE that the complainant was unable to recall under cross-examination and re-examination during the special hearing.

On 24 April 2015[4] the VARE was conducted. On 24 October 2017, a special hearing involving cross-examination and re-examination was conducted. The complainant was not properly sworn and it was immediately agreed between the parties that the product was unusable. A fresh special hearing was conducted later that day. In that second special hearing, the complainant stated that she recalled the final sexual act when the applicant pinned her up against the wall, facing it, and penetrated her vagina from behind with his penis (charge 4). This exchange in cross-examination then followed:
[4]See paragraph 4 of these reasons.

… it’s fair to say that you don’t have an independent recollection of the other occasions you mentioned in the VARE?---Yes.
So you can’t remember those specific times?---Yes.
You can’t remember any specifics about those occasions?---No.
So what you’re saying there, is that the only specific occasion that you can recall sitting here today is the occasion you just mentioned to her Honour?---Yes.
You can’t say when those other occasions occurred?---No.
You can’t say where those other occasions occurred?---No.
You don’t have any recollection of them whatsoever?---Um, some – the somewhat recollection.
Well, you’ve said that you don’t remember them, didn’t you?---Yes.

In re-examination at the special hearing:
… you’ve been asked about your memory and the incidents you alleged today?---Yes.
And you’ve given your recollection of the last specific incident - - - ?---Yes.
- - - that occurred in your room, the one where you were forced into the wall?---Yes.
And you said that you don’t recall the specifics of the allegations - - - ?---Yes.
- - - now, but that you have some recollection?---Yes.
What is your recollection now?---Um, just … what — not specifically what happened but how. Not — not really how, but — I don’t know how to word it.
Okay, let me try it this way: you spoke about that incident and said that it was penis/vagina sex?---Yes.
What else do you remember about penis and vagina sex?---What do you mean?
Are there any other occasions where there were penis and vagina sex?---There were other occasions but I don’t remember, like, what happened.
What do you remember about other types of sex?---Like, if it was oral or anal?
Yes, so what do you remember about any of that?---Just nothing, but I know it happened.

The applicant contended to the trial judge that the complainant’s accounts of charges 1-3 and 5 in her VARE ought be excluded pursuant to s 137 of the Evidence Act 2008.[5] It was submitted the unfair prejudice that arose from the applicant’s inability to test those accounts and the associated risk that the jury might overvalue the weight to be attached to that evidence outweighed the probative value of that evidence. Her Honour was referred to Tukuafu v the Queen[6] and R v Debresay (Ruling No 1).[7]
[5](‘Evidence Act’).
[6][2014] VSCA 345 (‘Tukuatu’).
[7][2016] VSC 487 [17]–[60] (‘Debresay’).

The prosecutor submitted there was no unfair prejudice because in cross-examination at the special hearing, it was never suggested that the complainant’s lack of memory was indicative of untruthfulness. The defence could still go to the jury and say ‘… you cannot be satisfied that … [the complainant] is telling the truth about each of these incidents because if she [is] she’d be able to remember [something].’ The prosecutor further submitted that there were other matters that the defence could point to in order to test the evidence — ‘[t]he withdrawal of the first allegation, things that were allegedly said to police officers, and so on’.

Her Honour ruled as follows:

I find force in the argument of [counsel] in respect of the actual evidence that was before me in the special hearing, particularly at p 109 of the transcript, where the witness indicated that she had a somewhat recollection in relation to all of the other incidents, but that then was not explored any further by [defence counsel] in cross-examination.
I will give you further detailed reasons in the future, but at this stage I am not prepared to exercise the discretion pursuant to s 137, to have the evidence excluded in respect of each of the charges.
As I said, I will provide detailed reasons at a later time.

Regrettably, those reasons have not been forthcoming.

Before this Court, both counsel developed these submissions. The applicant contended that the complainant, again and again, confirmed she had no memory of the allegations that underpinned charges 1, 2, 3 and 5. The applicant was denied his fundamental right to confront his accuser and test the allegations made against him. There was said to be a real danger that the jury would give undue weight to the complainant’s evidence in her VARE as a result of not having seen it tested. The applicant was convicted in this context. The impugned evidence ought to have been excluded pursuant to s 137 of the Evidence Act.

The respondent submitted that the VARE occurred two and a half years before the special hearing. The offending itself was alleged to have occurred roughly three years before the special hearing at a time when the complainant was about 12. The complainant also suffered from obvious emotional difficulties. The respondent further submitted that by the time the second special hearing commenced, the complainant was ‘exhausted, confused and a bit upset’ and ‘very tired’. In that context, the respondent submitted the prosecutor was correct to argue that the cross-examination of the child witness had not laid the groundwork to establish that the loss of memory was irreparable. By the time the second special hearing was conducted, 24 hours had elapsed since the complainant had viewed her VARE tape. The cross-examiner in the special hearing had not taken the complainant to the specifics of each forgotten allegation as Ward’s[8] case inferentially required. To fail to do so creates the risk that any retraction will not be viewed as material. It follows, so the argument goes, that in failing to ‘grasp the nettle’, it could not be safely concluded by her Honour that defence counsel could not confront her client’s accuser or test the allegations. Defence counsel’s capacity to test the evidence had not been properly explored. Her Honour, therefore, could reasonably conclude (as she did) that the failure of memory was not irreparable.
[8]Ward (a Pseudonym) v The Queen [2017] VSCA 37 [96]–[135].

As to the question of ‘unfair prejudice’, the respondent submitted that the applicant could, and ultimately did, claim a forensic disadvantage and that the memory loss was itself an illustration of the complainant’s lack of credibility. The respondent also submitted that even if a proper foundation had been laid for the exclusionary submission, the mere fact that a witness now had no recollection of past events was not inherently objectionable.

In our view, this ground must fail. An examination of the complainant’s cross-examination at the special hearing demonstrates an extremely competent cross-examination in which defence counsel, having established that the complainant claimed to have no current recollection of any but the last sexual encounter, seemed forensically satisfied with this position and steered clear of putting the specific facts that underpinned charges 1, 2, 3 and 5. This strategic decision was understandable. A forensic disadvantage direction might well be forthcoming (it was), counsel could avoid the burden of reminding the complainant of her specific allegations and thus avoid the danger of cross-examination degenerating into a ‘didn’t happen/yes it did’ contest on all charges, and counsel could go to the jury and argue that this lost memory was feigned and but another example of the complainant’s lack of credibility (which in fact counsel did). In these circumstances, we agree with the respondent’s contention that the defence had not laid the necessary foundation for establishing with any real cogency that the complainant had, indeed, totally lost her memory. For that reason, the danger of unfair prejudice asserted by defence counsel was well above the true danger and, in our view, at least in part a product of a strategic decision made by counsel.

The possibility that the jury would attach undue weight to the complainant’s evidence as a result of not having seen it tested in cross-examination was significantly diminished in this case. The course taken by defence counsel enabled her to raise doubts about the complainant’s evidence and to point to internal inconsistencies in it by way of rhetorical questions to the jury (which she did), rather than by putting direct questions to the complainant and risking unfavourable answers. This constituted a real forensic advantage to the defence which further reduced the risk of unfair prejudice.

The probative value of the impugned evidence was obviously very high. It constituted the very large majority of the prosecution case on charges 1, 3, 4 and 5 and was delivered in the VARE in a reasonably coherent narrative.

We should observe in passing that, in cases where a witness’s genuine total loss of memory about a prior incident is established (as in Debresay[9]), this does not necessarily lead to the exclusion of the witness’s evidence about that incident. Each application under s 137 of the Evidence Act will turn on its own facts. In Tukuafu this Court stated:

[A]s a matter of principle and authority, there is nothing inherently objectionable about the admission into existence of an account of events that a witness was able to give from memory at an earlier time where the witness is unable to recollect those events at the time of cross-examination. The only condition for its admissibility is that the witness is able to say that the earlier account would have been a truthful account at a time when the events could be recalled.[10]

[9]Debresay [2016] VSC 487.

[10]Tukuafu [2014] VSCA 345 [56].

In Debresay,[11] the Court was confronted with a 14 year old witness who had given a taped VARE style interview 10 years previously of a violent, ultimately fatal, assault upon his infant sister. It was not in dispute that his recollection of events had altered to such an extent that there was little prospect that much of his decade-old memory had survived at all. In that instance, the Court held that the danger of unfair prejudice could be ameliorated to some extent by judicial direction; it was also ameliorated by a significant body of material provided by the witness to a child psychologist throughout the intervening years so that, while there appeared to be no reliable decade-old memory, there was a record of its evolution over that decade. In the event, it was held that s 137 would not operate to exclude the evidence in that instance as the very high probative value of the child’s eyewitness account outweighed the danger of unfair prejudice.
[11][2016] VSC 487. The verdict of guilty to manslaughter was set aside on appeal on an ‘unsafe and unsatisfactory’ basis. The correctness of Debresay (Ruling No 1) was not a subject of the appeal.

Ground 1 must be rejected.

Ground 2 – The learned trial judge erred in refusing to give an unreliable evidence direction pursuant to s 32 of the Jury Directions Act in relation to the VARE evidence that could not be recalled.

At trial and in this Court, the applicant contended that the jury ought to have been given a direction on unreliable evidence under s 32 of the Jury Directions Act 2015.[12] This contention was predicated on the complainant’s asserted lack of memory as to all but the last sexual exchange (charge 4). The applicant submitted that it impacted on the reliability of the complainant’s evidence as a whole. In a short discussion, her Honour ruled that the applicant’s argument failed at ‘the first hurdle’. Her Honour stated that she was not satisfied that the evidence was of a kind that was unreliable.
[12](‘Jury Directions Act’).

In our view, there is no merit to the applicant’s contention. For the reasons that we have discussed under ground 1, defence counsel did not explore the true extent of the complainant’s memory loss by reference to specific allegations, and seemed content with the complainant’s bare assertion that on all but the last occasion, her memory had deserted her, despite the complainant belatedly accepting that she had ‘ … some – the somewhat recollection’.

The trial judge directed the jury pursuant to s 39 (significant forensic disadvantage) and s 54D (differences in complainant’s account).

This Court recently identified the process which should be undertaken by a court when considering whether to give a s 32 direction.[13] The first step is to consider whether the relevant evidence is ‘evidence of a kind that may be unreliable’ either because it comes within a prescribed category of evidence (set out in s 31 of the Jury Directions Act) or because of circumstances which ‘have the effect that the evidence … may be of a kind that may be unreliable’.[14] Assuming the evidence satisfies one of these preconditions, then the judge must give a s 32 unreliability direction unless ‘there are good reasons for not doing so’.
[13]Hudson (a Pseudonym) v The Queen [2017] VSCA 122.
[14]Ibid [43].

In this case, her Honour was satisfied the complainant’s evidence about charges 1, 2, 3 and 5 given in the VARE was neither of the necessary kind, nor affected by circumstances which had the effect of rendering the evidence unreliable. Specifically, it appears her Honour was not satisfied that any present asserted memory failure might have impacted the reliability of the account given in the VARE some 30 months previously. We consider her Honour was correct in reaching this conclusion. The loss of memory, whether real or feigned, was dealt with by a forensic disadvantage direction. Variations in the complainant’s account were also dealt with by direction (s 54D). We consider that there was no proper basis for an unreliability direction and that her Honour was correct to refuse this request from counsel.

We also observe that there was nothing subtle or hidden about the evidence of the complainant that might have been beyond the full appreciation of the jury in the absence of a s 32 direction. She claimed to have lost large portions of her memory. The jury either accepted that or they did not.

Ground 3 – The learned trial judge erred in refusing a direction in relation to the prosecutor’s failure to call relevant evidence from CS and BB pursuant to s 43 of the Jury Directions Act.

Both CS and BB lived in the Maidstone house during the time of the alleged offending. The house was a smallish three bedroom Housing Commission style house. The applicant submitted to this Court:

Anything these witnesses had to say would have been relevant. The failure to call [them] … was a matter of significance in the trial and … ought to have attracted a direction on the subject.
…
Her Honour refused to give such a direction, stating that she did not accept they were relevant witnesses. In so doing [her Honour] fell into error.

The respondent directed this Court to s 43 of the Jury Directions Act. Relevantly, it provides:

(1)If the prosecution does not call or question a particular witness, defence counsel may request under s 12 that the trial judge direct the jury on that fact.
(2)The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution —
(a) was reasonably expected to call or question the witness; and
(b)has not satisfactorily explained why it did not call or question the witness.

(3)In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution’s case.

In this case, the applicant made the relevant request under s 12. Her Honour determined that while the criticisms of the police investigations in failing to take statements from material witnesses were ‘legitimate’, she did not think ‘it gets to a stage that would require a … direction under s 43’.

The respondent contended that it was open to the judge to conclude that she was not satisfied the prosecution was reasonably expected to call the witnesses or either of them. Further, if the prosecution was reasonably expected to call these witnesses, it had provided a satisfactory explanation for not doing so. Assuming this to be the case, the respondent contended this ground must fail.

It will be recalled that the evidence at trial was that BB at all material times was at home, mostly in his bedroom, basically 24 hours a day. CS was said to be present overnight during the relevant period. All offences were said to have been committed overnight.

In our view, the police were legitimately criticised for failing to interview or to seek to interview these witnesses. This was a small three bedroom house with five occupants on most nights during the relevant period. Most of the activities were said to have occurred in the lounge room area, near all three bedrooms. Her Honour made comment to the jury in the following terms:

In respect of the police investigation, maybe they should have spoken to other people and I should say, and this is just a comment from me … [y]ou might have thought given the frequency alleged of some of the sexual activity and the nature of the relationship and observations of those within the family dynamics, that the police might have spoken to some of the other people who lived in the house, but they have not. There is just no evidence as to that. … You should not speculate about that.

In our view, taken in its full context, this comment about the police inertia, adverse as it may be to the police, amounts to a strong comment to the jury not to draw any inference whatsoever from the failure to call those two witnesses.

This ground raises two questions both emanating from s 43 of the Jury Directions Act, namely:

(a)was it open to the judge to conclude that she was not satisfied that the prosecution was reasonably expected to call the witnesses or either of them; and
(b)if her Honour concluded that the prosecution was reasonably expected to call the witnesses, was there a satisfactory explanation for not calling them or either of them?

We consider it was not open to her Honour to be satisfied that the prosecution was not reasonably expected to call both witnesses, BB and CS. Put in positive language, in our view, her Honour should have been satisfied that the prosecution was reasonably expected to call these witnesses. Both were present in the house at most material times over a period of months. As her Honour commented, if this activity was as frequent as alleged, the police ‘might have spoken to [them]’. The existence of these witnesses was well known to all parties. We agree with the applicant’s counsel that even if their evidence turned out to be, ‘I heard nothing, I saw nothing’, this could itself be of forensic significance.

Assuming we are correct in concluding there was a reasonable expectation that the prosecution would call these witnesses, then we regard the explanation for the failure to do so as unsatisfactory. In the language of the statute, bearing in mind where the onus lies on this application, we are of the view that it was not open for her Honour to conclude that the prosecution explanation for failing to call these witnesses was satisfactory. In short compass, the prosecutor’s explanation was as follows: ‘[t]here’s no information that [the two persons] were a witness to anything’.

The respondent contended that because the prosecutor had not been supplied with statements by the investigators, she was somehow relieved of the duty to call these witnesses because ‘she could not satisfy herself that each person could give relevant evidence concerning facts in issue in the proceedings’. We are not persuaded by this submission. While a prosecutor’s job may be lonely, it is not passive. If a prosecutor believes a witness should be interviewed, then that is what should happen. In this case, we consider that it was insufficient to say ‘I don’t have statements … I have no information they were witness to anything’. Given the proximity of the two witnesses to the many accusations of sexual misconduct alleged over some months, they should have been interviewed and the prosecutor should then have made an informed decision as to whether to call these witnesses. The prosecutor is under a duty to call all credible witnesses whose evidence is essential to fully presenting the narrative of the case.[15]
[15]Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; Dabbah v Attorney-General for Palestine [1944] AC 156; Whitehorn v R (1983) 152 CLR 657; Dyers v R (2002) 210 CLR 285; Mahmood v Western Australia (2008) 232 CLR 397; R v Soma (2003) 212 CLR 299; R v Shaw (1991) 57 A Crim R 425.

We therefore consider that a direction under s 43 was required. The comment made by the judge did not constitute such a direction. It was, as the judge said to the jury, ‘just a comment.’

It follows from what we have said that we conclude that her Honour erred in failing to give a s 43 direction. The issue then becomes, what flows from this failure? Has the trial miscarried? The applicant has been denied a direction to the effect that the jury could, if they wished, infer that the evidence of one or both of CS and BB would not have helped the prosecution case. Beyond that, they could not speculate as to what the witnesses may have said.

The respondent submitted that the failure to give a direction did not result in any substantial miscarriage of justice. We accept that submission. In our view, the absence of the s 43 direction, in the overall mix of issues before the jury, was not a significant error as to constitute a substantial miscarriage of justice as required by s 276 of the Criminal Procedure Act 2009.[16] We shall explain our reasons for this conclusion.
[16]See Baini v The Queen (2012) 246 CLR 469, 479 [25]; Andelman v The Queen (2013) 38 VR 659, 677–8 [85]–[86]; cf Johnson v The Queen [2018] HCA 48 [52].

As we have said, by being denied a s 43 direction, the applicant has been denied a judicial explanation to the jury that they may infer that these witnesses, had they been called, would not have assisted the prosecution case. It is, of course, a matter for the jury as to whether they were prepared to draw this inference, but even if they were, it was an inference of limited scope in the overall context of a case that was essentially the complainant’s word against the applicant’s. The impact of the denial of the s 43 direction was, we consider, to a very significant extent ameliorated by a concession made by the prosecutor in her closing address to the effect that there were people in this small house when the offences occurred and that ‘no one heard anything’. This concession of fact went well beyond the effect of any s 43 inference, which in the circumstances of this case was limited in the way we have explained.

It is true, as the applicant submitted, that this statement by the prosecutor did not have the imprimatur of the judge, but in our opinion, taken together with the judge’s comment, the applicant was in no worse position than he would have been if the required direction had been given. The jury was clearly told, in effect, that nothing that CS or BB could have said would have helped prove the applicant’s guilt. This was all that the jury would have been told they could have inferred had the direction been given. Beyond that, as a product of a prosecution concession favourable to the applicant, the jury were told that in fact nobody heard anything. For these reasons, the applicant has not shown that the failure to give the direction resulted in a substantial miscarriage of justice. To the contrary, we are confident that it did not.

Ground 4 – The aggregate effect of the errors (or defects) alleged in grounds 1 – 3 occasioned a miscarriage of justice.

The applicant submitted that, even if none of the individual errors alleged resulted in a substantial miscarriage of justice, the errors when considered as a whole did have that result. Since we have only accepted that there was a single error (ground 3) and found that it did not result in a substantial miscarriage of justice, this ground must fail.

Conclusion

Leave to appeal on grounds 1, 2 and 4 is refused. Leave to appeal on ground 3 is granted but the appeal is dismissed.

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Citations

Dale Solis (a pseudonym)[1] v The Queen [2018] VSCA 275

Most Recent Citation

Director of Public Prosecutions v DT (Ruling No 5) [2024] VSC 348

Cases Citing This Decision

3

Anderson v The Queen [2021] NZCA 513

Nelson (a pseudonym) v The King [2025] VSCA 226

Director of Public Prosecutions v DT (Ruling No 5) [2024] VSC 348

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Tukuafu v The Queen [2014] VSCA 345

R v Debresay (Ruling No 1) [2016] VSC 487

Roger Ward (a pseudonym)[1] v The Queen [2017] VSCA 37

Charge	Offence	Maximum	Sentence	Cumulation
1	Sexual penetration of a child under the age of 16	10 years’ imprisonment	30 months’ imprisonment	9 months
2	Sexual penetration of a child under the age of 16	10 years’ imprisonment	42 months’ imprisonment	9 months
3	Sexual penetration of a child under the age of 16	10 years’ imprisonment	4 years’ imprisonment	Base
4	Sexual penetration of a child under the age of 16	10 years’ imprisonment	4 years’ imprisonment	9 months
5	Sexual penetration of a child under the age of 16	10 years’ imprisonment	3 years’ imprisonment	9 months
Total Effective Sentence:		7 years’ imprisonment
Non-Parole Period:		3 years 6 months
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		48 days
Other relevant orders:		Sentenced as a serious sexual offender in relation to charges 3, 4 and 5. Registration under the Sex Offenders Registration Act 2004 for life. Order pursuant to s 464ZF(2) of the Crimes Act 1958 for the taking of a forensic sample.

[2018] VSCA 275

31 October 2018