Stuart (a pseudonym) v The Queen
[2021] VSCA 260
•15 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0081
| MAC STUART (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the applicant, complainant and witnesses.
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| JUDGES: | BEACH, McLEISH and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 September 2021 |
| DATE OF JUDGMENT: | 15 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 260 |
| JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Wischusen, 1 November 2019) |
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CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Whether verdicts unreasonable – Where complainant unable to recall evidence given in VARE when later cross-examined – Whether lack of recall rendered complainant’s evidence unreliable – Whether aspects of complainant’s evidence improbable – Relevance of lack of corroborating or independent evidence – Verdicts open to jury – Appeal dismissed – Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; R v Baden-Clay (2016) 258 CLR 308; AK v The Queen [2021] VSCA 165 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Smallwood | Stary Norton Halphen |
| For the Respondent | Mr J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
McLEISH JA
WALKER JA:
Introduction and summary
On 1 November 2019, the applicant was convicted by a jury of seven charges of incest and nine charges of indecent act with a child under 16 (the child was his stepdaughter, to whom we shall refer as ‘AR’). Following a plea on 6 November 2019, the applicant was sentenced on 20 November 2019 to a total effective sentence of 14 years and 6 months’ imprisonment with a non-parole period of 11 years and 6 months.
The applicant seeks leave to appeal against the convictions on the sole ground that the verdicts are unreasonable or cannot be supported having regard to the evidence.[2] He requires an extension of time to do so. A significant basis for the applicant’s case is that, when she gave evidence at trial, in a special hearing, AR was unable to recall the offending in the same level of detail as she had provided in her VARE (visual and audio recording of evidence). The applicant also contends that various aspects of AR’s account are improbable.
[2]Criminal Procedure Act 2009 s 276(1)(a).
For the reasons that follow, we would grant the application for an extension of time and the application for leave to appeal, but dismiss the appeal.
Extension of time
As noted above, the applicant was convicted on 1 November 2019 and sentenced on 20 November 2019. The time for filing an application for leave to appeal expired on 18 December 2019. However, the application for leave to appeal was not filed until 20 April 2020, some four months out of time.
The applicant filed an affidavit in support of his application for an extension of time. In summary, the affidavit stated as follows:
(a) discussions between the applicant and his legal advisers about an appeal commenced from 1 November 2019;
(b) after the applicant was sentenced on 20 November 2019 further discussions as to the prospects of an appeal occurred between the applicant and his legal advisers;
(c) on 6 December 2019 funds were provided for provision of advice on an appeal by appellate counsel;
(d) materials were provided to appellate counsel on 13 December 2019;
(e) the transcript of the opening and closing addresses was received by the applicant’s solicitors on 23 January 2020 and forwarded to appellate counsel;
(f) a draft written case was provided by counsel on 7 April 2020;
(g) on 9 April 2020, following some delays caused by Covid-19, counsel conferred with the applicant about the appeal points;
(h) the applicant received the draft appeal documents on or about 16 April 2020, although they had been sent earlier than that;
(i) on 17 April the applicant provided formal instructions to counsel to file the documents;
(j) on 20 April those instructions were provided to the applicant’s solicitors and the documents were filed that day.
The respondent opposes an extension of time in this matter, based on the merits of the appeal not being strong and the delay being considerable.
We accept that the delay was considerable. However, at least part of the delay appears to be not of the applicant’s, or his legal advisers’, making, namely the fact that the relevant transcript was not provided until 23 January 2020. Notwithstanding that, there is no clear explanation as to why, after provision of the transcript, the draft appeal documents were not provided promptly, given that counsel and the solicitors would have (or ought to have) been aware of the expiry of the appeal period. There is some evidence that communication between the applicant, who was in prison, and his legal advisers was made more difficult by Covid-19 restrictions. In particular, that evidence suggests that there was a two day delay in organising a telephone conference in early April, as well as some delay between the sending of the appeal documents to the applicant (on an unspecified date, but around 9 April 2020) and the applicant receiving the documents (also on an unspecified date, but around 16 April 2020). We note, however, that this delay came quite late in the overall chronology. Ultimately, the only apparent explanation for the delay between February and early April is the time taken by counsel to provide advice and relevant documents.
As to the merits of the appeal, although in our view the appeal should be dismissed, as we stated above we would grant leave to appeal. Thus we do not think it can be said that the prospects were so weak as to mitigate against an extension of time. In particular, AR’s evidence at the special hearing was markedly lacking in detail, and although we have concluded that it was open to the jury to convict the applicant based on the evidence she gave in her VARE, we do not consider that the appeal was so lacking in merit as to weigh against the grant of an extension of time.
Although the explanation for the delay is not entirely satisfactory, we would in all the circumstances grant the extension of time sought.
Whether this Court should watch the VARE and special hearing evidence
We note at the outset that the members of this Court watched parts of the VARE and the special hearing. The parties had agreed that we should do so. We note that it has not been uncommon for this Court to view the VARE and the evidence given in a special hearing in cases where those processes are used.[3] As the High Court observed in Pell v The Queen, there are ‘cases where there is something particular in the video-recording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court’s examination of the video-recording’.[4]
[3]See, eg, R v El Moustafa [2010] VSCA 40, [43] and the authorities cited in n 30; Hinch (a pseudonym) v The Queen [2021] VSCA 214, [27]–[30].
[4]Pell (2020) 268 CLR 123, 144–5 [36]; [2020] HCA 12.
In the present case we considered it was appropriate for this Court to view parts of the evidence given in the VARE and at the special hearing, because the applicant relied upon AR’s evidence concerning him ‘squeezing’ her breasts, which included a hand gesture to explain what this involved. Thus this is a case where there were particular matters in the video-recording that could affect our assessment of the evidence, which could only be discerned visually.
Factual background
AR first complained of the offending to a teacher at her school on 17 October 2017, when she was 16 years old. She did so by writing on a piece of paper words that the teacher understood as ‘he raped me’. She told the teacher the offending had started when she was in grade 1 and stopped in 2016, when her mother and stepfather broke up. Following that statement, the teacher contacted the Department of Human Services. The teacher also told the school principal and the principal contacted AR’s mother (‘MM’), who came to the school.
MM gave evidence that when she was told by the principal what AR had said, she initially thought it involved AR’s biological father. However, AR corrected that and said that it was her stepfather. The principal contacted the police, and arranged for AR and MM to attend at the Footscray police station. Following that, Detective Senior Constable Abbey Justin conducted a video and audio recording of her questioning AR (the ‘VARE’) on 24 October 2017.
AR’s evidence of the offending given in the VARE
In the VARE AR gave detailed evidence of multiple occasions, over many years, on which the applicant sexually assaulted her. We return below to some aspects of the VARE, when we come to assess the differences between the evidence given on the VARE and the evidence given at the special hearing.
We note that the trial judge was asked, prior to the empanelment of the first jury, to give a direction under s 44N of the Jury Directions Act 2015, because AR was a child at the time the VARE was made and her reliability and credibility were in issue. He declined to do so on the basis that there was good reason not to. He explained his reasons as follows:
[I]n the course of the VARE, the child complainant, who was then 16, gave a coherent and cohesive and frank account, demonstrating well-developed language and cognitive skills. She had no difficulty comprehending what was being asked of her or in answering and describing what she said had happened to her over the many years she was describing that the alleged offending took place.
She gave, in my view, a relatively mature and frank account of what had happened, and there was no sign that she had particular difficulty in remembering any of the events, that her language or cognitive skills interfered with her describing what had happened to her in detail or in comprehending and responding to the questions she was asked, whether in the VARE or in the special hearing. In my view, the child as she was at the time of the VARE had a level of development which left her with no difficulty understanding the language or in answering the questions that were put to her.
The trial
The applicant was initially arraigned on 14 October 2019 and a jury was empanelled. The first jury was discharged after certain objectionable questions were asked by the prosecutor of a witness. A second jury was empanelled, but it too was discharged after objectionable statements were made by the prosecutor in his closing submissions. A third (and final) jury was empanelled on 23 October 2019. The charges were, in summary, as follows:
Charge 1: that the applicant intentionally sexually penetrated AR by introducing his penis into her vagina.
Charge 2: that the applicant intentionally sexually penetrated AR by introducing his finger into her vagina.
Charge 3: that the applicant intentionally sexually penetrated AR by introducing his finger into her vagina (on the same occasion as charge 4).
Charge 4: that the applicant wilfully committed an indecent act with AR by sucking her breast (on the same occasion as charge 3).
Charge 5: that the applicant wilfully committed an indecent act with AR by making her touch his penis (on the same occasion as charge 6).
Charge 6: that the applicant intentionally sexually penetrated AR by introducing his penis into her vagina (on the same occasion as charge 5).
Charge 7: that the applicant wilfully committed an indecent act with AR by touching her breast (on the same occasion as charge 8).
Charge 8: that the applicant wilfully committed an indecent act with AR by making her touch his penis (on the same occasion as charge 7).
Charge 9: that the applicant wilfully committed an indecent act with AR by sucking her breast.
Charge 10: that the applicant intentionally sexually penetrated AR by introducing his finger into her vagina (on the same occasion as charge 11).
Charge 11: that the applicant wilfully committed an indecent act with AR by making her touch his penis (on the same occasion as charge 10).
Charge 12: that the applicant intentionally sexually penetrated AR by introducing his tongue into her vagina (on the same occasion as charge 13).
Charge 13: that the applicant intentionally sexually penetrated AR by introducing his penis into her vagina (on the same occasion as charge 12).
Charge 14: that the applicant wilfully committed an indecent act with AR by touching her vagina.
Charge 15: that the applicant wilfully committed an indecent act with AR by touching her breast (on the same occasion as charge 16).
Charge 16: that the applicant wilfully committed an indecent act with AR by pushing his penis against her buttocks (on the same occasion as charge 15).
The applicant pleaded not guilty.
AR’s evidence at trial was given in a special hearing, which was recorded prior to the empanelment of the first jury.
The jury viewed AR’s VARE evidence, and then the recording of the special hearing where she gave evidence.
MM (AR’s mother) gave evidence, as did the teacher to whom AR made her initial statement and the principal of AR’s school. AR’s half-brother, ZZ (who was the child of the applicant and MM), also gave evidence in a VARE and at a special hearing.
The applicant gave evidence and was cross-examined.
Whether the verdicts are unreasonable
As previously stated, the sole ground of the applicant’s proposed appeal is that the jury verdicts are unreasonable or cannot be supported having regard to the evidence. As Maxwell P explained in R v Klamo, the approach required of an appellate court in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion.[5]
[5](2008) 18 VR 644, 653–4 [38]; [2008] VSCA 75 (‘Klamo’).
His Honour went on to quote the following statement of Hayne J in Libke v The Queen:
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[6]
[6]Ibid 645 [39] (citations omitted) (emphasis in original), quoting Libke v The Queen (2007) 230 CLR 559, 596–7 [113]; [2007] HCA 30. Gleeson CJ and Heydon J agreed with Hayne J.
That reflects the earlier judgment of the High Court in M v The Queen.[7] The court on a criminal appeal is required to decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard. Sometimes this has been framed as asking whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’[8] or whether, instead, the ‘path to a conviction is open’. [9]
[7]M v The Queen (1994) 181 CLR 487, 493–5, 501–5, 508–9, 525; [1994] HCA 63 (‘M’).
[8]See Pell v The Queen [2019] VSCA 186, [23]; Klamo (2008) 18 VR 644, 653–4 [40]; [2008] VSCA 75; R v Shah [2007] SASC 68, [4] (Doyle CJ).
[9]Morabito v The Queen [2007] NSWCCA 126, [34] (Mason P).
In determining that question, the Court is required to make its own independent assessment of the evidence. However, in doing so it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury is the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person. As the High Court stated in R v Baden-Clay:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[10]
[10](2016) 258 CLR 308, 329 [65] (citations omitted); [2016] HCA 35.
Recently, in Pell, the High Court again considered the way in which a contention that the jury’s verdict is unreasonable, or cannot be supported having regard to the evidence, is to be resolved. Reaffirming the authoritative statements in M,[11] the Court observed as follows:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[12]
[11]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
[12]Pell (2020) 268 CLR 123, 145 [39] (emphasis added).
It is clear from Pell that, for the purposes of this appeal, this Court must assume that the jury assessed AR’s evidence to be credible and reliable. The Court must then consider whether, despite the jury’s assessment that she was credible and reliable, her evidence reveals inconsistencies, discrepancies or other inadequacies, such that the Court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt about guilt. The Court must also consider the other evidence in the case, to assess whether, notwithstanding the jury’s assumed assessment that AR’s evidence was credible and reliable, the jury, acting rationally, ought to have entertained a reasonable doubt about guilt.
The examination of AR’s evidence, and the other evidence in the case, is not to be undertaken in a piecemeal fashion; the combined effect of the evidence can be important. Thus, in Pell, although it had to be assumed that the jury assessed the complainant’s evidence to be credible and reliable, the ‘compounding improbabilities’ caused by other unchallenged evidence in the case required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt.[13] As we explain below, we do not consider that this case contains ‘compounding improbabilities’ of the kind identified in Pell.
[13]Pell (2020) 268 CLR 123, 164–5 [119]; [2020] HCA 12. See also 166 [127].
The applicant’s submissions
In the present case, the applicant relies upon the following matters in support of his contention that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt:
(k) The allegation that informed charge 1, which was said to have occurred when AR was 6 or 7 years old and involved the applicant penetrating AR’s vagina with his penis, was improbable because:
(i) it was not said to have caused any injury or bleeding, notwithstanding that the act was committed by a physically mature man upon a child of small stature;
(ii) notwithstanding what she had said in her VARE, at the special hearing AR could not remember important details of the offending;
(iii) AR’s evidence was that her 6 month-old sister was on the bed while the offending occurred on that bed;
(iv) AR said that the offending occurred when her mother was away from the home, engaged in training for her work, but that training had finished some 3 to 4 years earlier.
More generally, in an overarching argument directed to each of the verdicts, but with particular examples given, the applicant relied upon the following matters:
(l) notwithstanding what she had said in her VARE, at the special hearing AR could not remember important details of the offending (the allegations that informed charges 2, 8, 9 and 13 were given as particular examples);
(m) there were inconsistencies in AR’s evidence as between the VARE and at the special hearing (the allegations that informed charges 5 and 6 were given as particular examples);
(n) AR’s evidence at the special hearing was not prompted by her memory of the alleged offending, but by what she had said in her VARE, of which she was reminded during cross-examination (charges 9, 11 and 16 were given as particular examples);
(o) the fact that AR alleged that the applicant had squeezed her breasts in a manner ‘akin to squeezing a tennis ball’, but that that was improbable, if not impossible, due to AR being ‘flat-chested’ at the relevant times;
(p) that it was improbable that the applicant had, as alleged, sexually offended against AR almost every day for about 8 years, regardless of who was in the house;
(q) that it was improbable that AR would have concealed from her mother, over a period of about 8 years, the prolific and violent sexual offending that she alleged had occurred, in circumstances where her mother was protective and vigilant;
(r) that it was improbable that AR had not complained to anyone about the sexual offending until October 2017, given that she had previously complained to multiple people about non-sexual misconduct allegedly perpetrated against her by the applicant;
(s) that there was no objective evidence or evidence independent of AR that corroborated any of her allegations with respect to the charges; and
(t) that the applicant gave credible evidence denying the offending and was of good character.
We will address the matters in paras 30(a), (b) and (c) together, before considering each of the other matters in turn. We shall then consider whether, considered cumulatively, these matters require the conclusion that the verdict was not open to the jury.
The VARE and the special hearing
The applicant makes three related claims about AR’s evidence given on the VARE and her evidence given at the special hearing.
The first aspect of this part of the applicant’s case concerns the differences between the detailed account that AR gave at the VARE and her failure to remember details and aspects of the offending when cross-examined at the special hearing. This is a key aspect of the applicant’s case. The differences are admitted by the Crown, and were dealt with by both parties in their addresses to the jury.
The applicant provided a schedule of evidence that set out in detail the differences between the VARE and the special hearing on which the applicant relies. In summary, the applicant points to many instances where, although she gave detailed evidence about a particular incident on the VARE, at the special hearing AR said ’I can’t remember’ or ‘I don’t know’ when asked to provide those details. That inability to provide details continued even when counsel for the applicant reminded AR what she said in her VARE.
It is not necessary to set out all of the passages on which the applicant relies. Rather, some examples can be given, as follows:[14]
[14]The examples are taken from the schedule of evidence filed with the applicant’s written case, but they have been reformatted and emphasis has been added to words such as ‘I can’t remember’ and ‘I don’t know’.
Charge 1: that [the applicant] at Altona Meadows in Victoria between the 1st day of February 2008 and the 29th day of February 2008 intentionally sexually penetrated [AR] a person whom he knew to be his step-child by introducing his penis into the vagina of [AR].
Evidence in VARE: 22 February 2010
Evidence in special hearing: 8-9 October 2019
Q & A 83
… he was on top of me, and then I think my — I didn’t have my shorts on or my underwear on. And he — I felt his dick inside my vagina and he was going really fast and then he went slow. And then — I think it was about for, like, two minutes. And then he told me to go to my own room. So I took my pillow and went to my room, and I fell asleep.
Q & A 94
... I don’t — I — I think that he pulled my pants down and my underwears down. And then he started having his dick inside my vagina while my siblings were all asleep. And he went really fast and I did not know what was happening at the time ‘cause I was very little.
Q & A 112
Think it was about in February. Think I was about six or seven years old.
Q & A 594 to 600
I felt something disgusting, a really disgusting feeling around then. And I felt so much weight on me. And I felt really fast pain going through my vagina. He was just on — just on top of me. His — he had — I dunno how to explain it. Just — he was just laying on me, with his hands — hands on the bed and just kept going up and down really fast in me. That’s all I — that’s, like, I felt — that’s all I remember. He backed away slowly and then laid his back on the bed.
Q & A 606 to 609
Like, the pain was, like, when I was little and all the drawers fell on me when I was really in pain.
84.17 to 87.26
And what happened then?---I can’t remember.
Did you have clothes on when you were in his room, when you - - -?---When I entered his — the room, I had my clothes on. Okay. What happened to your clothes?---I think he told me to take them off. I can’t really remember.
Okay. You might not be able to answer this but were your clothes all the way on or all the way off?---I don’t know.
You don't know?---I don’t know.
Okay. Did you get on [the applicant’s] bed?---Yes. Okay. Was [your sister] on the bed as well?---Yes.
And what part of your body was on the bed?---My — I can’t remember.
Were you lying on your back or on your front?---I think my back. I’m not too sure.
Okay. So — so you’re not sure whether it was lying on your back with your face up, or whether you were lying on your front?--- Yeah, I - - -
Or even on your side?---I just remember.
Okay. Now you’ve told the police that [the applicant] had his dick inside your vagina. What did he do to get his dick in your vagina?---He was laying on top of me, he climbed on the bed. Sorry, can I just — the first thing you said, what was the first answer you gave?---That he was on top of me.
He was on top of you?---Yeah.
Yes. And the next thing that you said was he - - -?---Yeah, he climbed on the bed to me, on top of me.
He climbed on the bed, okay. Where were his hands?---Um, I can’t remember.
Okay. Were his hands on the bed?---No, I can’t remember. Was there — what type of action, or what did he do with his dick?---I don’t — I don’t really remember. He would go like — go like him moving like up — up and down.
So before moving up and down, what did he do for it to be in your vagina?---I don’t know.
Did he put anything on his dick?---No.
Did he — did he put anything on your vagina?---I — like, I don’t know.
Did he touch your vagina with his hands?---I can’t remember. So you said that he was on top of you?---Yes.
Was his body touching your body?---Yes.
What part of his body was touching what part of your body?---I felt his chest against mine and — I felt his dick in my vagina.
Was there any other part of his body that touched any other part of your body?---I can’t remember.
Where were your arms?---I don’t know. Where were your legs?---I can’t remember.
Were your legs together, or were they apart?---Apart.
Are you able to indicate, perhaps with your hands, how far apart they were?---I can’t remember how far apart they were. Okay. You said to the police in your video that you felt a really fast pain going through your vagina. When did that pain start?---I can’t remember.
When did the pain stop?---I think it was after when he — after when he pulled it out.
Okay. What did he do to pull it out?---He just got off me. When he got off you, did you see him — did he do anything with his hands?---No.
Did you see his dick?---No, it was too dark.
So when his dick was in your vagina, you said he was going up and down. Was the bed bouncing?---I can’t remember.
Were you sort of moving on the bed yourself?---I can’t remember.
When it finished, what did you do?---Put my clothes on, and I grabbed my pillow and went to my room.
Where were your clothes?---On the floor.
So you said that you — am I right, that you said you went back to your room?---Yeah, yes.
Okay. What did you do?---I can’t remember.
Okay. When you went back to your room, were you still feeling pain?---A little bit.
When did the pain stop?---I can’t remember.
And what part of your body was the pain, or what part of your body was the pain coming from?---My vagina.
Okay. Was there anything unusual — so not usual — I don’t know, you might need some help, sorry.
Well, perhaps if I put it this way. Was there anything different about your clothes? [PROSECUTOR]: I don’t know that I understand that question.
[DEFENCE COUNSEL]: All right. (To witness) Was there anything different about your pants? Were you pants dirty in any way?---Um, I don’t know.
Okay. And particularly, do you know where the crutch of your pants are?---I don’t understand.
Okay. So the part of your pants that are near your vagina, were they dirty in any way?---I’m not too sure.
Do you understand what I mean? Or you don’t understand where I’m asking?---I don’t understand at all.
Okay. Was there any blood on your clothes, on your pants?---No.
All right. When this happened, did you know what sex was?---No.
Okay. Were you confused about what had happened?---Yeah. Sorry?---Yeah.
Yes. Did you say anything to your mum?---No.
Did you ask any questions about — you know, about, say, dicks and vaginas and that type of
thing?---No.
See, I’ve been told by [the applicant] that he didn’t have sex with you at this time. Did [the applicant] have sex with you?---Yeah.Charge 8: that [the applicant], … between the 9th day of December 2013 and the 2nd day of February 2014 wilfully committed an indecent act with [AR] a child under the age of 16 years to whom he was not married. Particulars: [AR] touch his penis — same occasion as charge 7.
Evidence in VARE: 22 February 2010
Evidence in special hearing: 8-9 October 2019
Q & A 209 & 210
And then he told me to put my hands inside his pants and rub his dick.
Q & A 217 & 218
And then after that he told me to put my hands in his pants, and then — and then he told me just to rub his dick real hard … like, fast. And then he told me to squeeze his dick too.
Q & A 228
And then — ‘cause I think he might’ve felt the white part coming out from his dick, so then he told me to quickly take out my hands and just go wash my hands nicely. And then when I was washing my hands, I think he might’ve wiped the cum off his dick.
Q & A 230 to 233
…when I was rubbing him, like, ‘cause I hold his dick like that and he told me to go really fast up and down... So I thought it was gunna come out and he — so that’s when he told me to remove my hands and quickly go wash my hands … he told me to go really, really fast ... I think around November.
Q & A 635 to 646
I felt lumps and bumps and hair. It felt really disgusting and gross. I felt like — I felt sick in the throat. And I wanted to take my hands out and not put it back in there, like, ever again. It — it was, like, it was huge. Not too small, not too long. It looked disgusting. So nothing’s on — they were sticky ... and even if the cum wasn’t there, it was still sticky … So … The — the white cum … I don’t think so.
100.30 to 102.03
So after he squeezed your breasts, what happened next?---I can't remember.
You said in your video that he pulled out the top of his pants and told you to put your hand on his dick. Do remember doing that? Or do you remember him doing that?---I don’t remember.
And you said in your video that he told you to squeeze his dick. Do you remember doing that?---I don’t remember.
You don't remember that?---(Witness shakes head.)
Just sort of one or two things that go from that, and you might not remember so just say, but did you use one hand or two hands?---I don’t remember.
Okay. Can you remember what his dick felt like?---it was long but it was disgusting. Really disgusting to look at it. To - - - So it was long — long, did you say?---Yes.
And it was disgusting?---Yep.
Did he have his clothes on the whole time?---I can’t remember. You said in your video with the police that he had pulled the top of his pants — he had elastic in the top of his pants and he pulled them out. Did he — did he have them pulled out like that the whole time? Or you can’t remember?---I can’t remember.
Now, in your video you say that you thought he might have stopped because he felt the white part coming. Were you talking about white cum in your video?---Yes.
Had you seen — so thinking to when this happened in 2011 — sorry, it wasn’t 2011, I apologise for that. When your grandmother’s there. So thinking back to when your grandmother’s there, had you seen white cum with [the applicant] before?---Yes.
On this time that we’re talking about did you see any white cum?---I can’t remember.
So you told the police that [the applicant] told you to wash your hands. Did you wash your hands?---Yes.
Where was he when you washed your hands?---Near his bed.
103.11 to 103.15
I’ve been told by [the applicant] that he didn’t have any sexual contact with you on this day, so didn’t touch you on the breast or on the vagina and he didn’t get you to rub his dick or anything like that.
Did [the applicant] have sexual contact with you on this day?---Yes.
Charge 13: that [the applicant] at Wyndham Vale in Victoria between the 1st day of January 2015 and the 31st of December 2015 intentionally sexually penetrated [AR] a person whom he knew to be his step-child by introducing his penis into the vagina of [AR]. Particulars: same occasion as charge 12.
Q & A 723 & 724
And he told me to go to my — come upstairs. He called me into my room. He told to have — remembering him telling me to have a shower and to put something sexy on. And then he — first he started touching me on my vagina. And then had my body on my —‘cause he was sitting on my sister’s bed and I was laying down on my bed. He told me to put my legs up and he started licking my vagina. And then after that he started — he was laying down on top of me and he had has dick inside of my vagina and then he went fast and then faster and then went slow. And then after that he stopped.
Q & A 737
And then — then he had his dick inside of my vagina and going hard and really fast, and then really fast and then slow.
Q & A 750
And then after that he took off his shirt and then he pulled off my underwear and started touching me there with his fingers. And then he pulled out — he pulled me laying down on the bed. And then he opened my legs up and he had — he moved closer, having my legs against his chest. And then he started to lick — move his head down and he started licking my vagina and he asked if it feels nice and I said, ’No’.
And then he moved my legs and then he laid me down on top of my bed. And then he got on top of me and his — I felt his dick entering my vagina and he went fast, fast, and then really faster, and then he slowed down. And then he got off.
Q & A 756 to 758
‘Cause I could feel it entering. And then he went fast, and then really fast, and really slow after. And then that’s when he got off me. I don’t know. He did it for a couple of minutes and then he stopped.
169.30 to 170.14
Okay. And what did he do after that?---I don’t remember.
Did he make contact with any other part of your body? Did he touch any other part of your body after that?---No, I don’t remember
Do you remember seeing his dick on that day?---I felt it against — against me, but I don’t know where I felt it against me. Okay. So you felt it against some part of your body, but you can’t say what part of your body you felt it against, is that right?---Yes, yes.
Was there anything else that happened on that — in this time, on this day?---I don’t remember.
So [the applicant’s] told me that he didn’t have any sexual contact with you, he didn’t lick you or touch you on the chest or anything like that, on this day. Did he have sexual contact with you?---Yes.
In his address to the jury, the prosecutor dealt with AR’s lack of memory at the special hearing as follows:
Even though she didn’t give as much detail, you might think, in the special hearing, she never wavered, did she, about being sexually assaulted over an extended period of years by the accused man during young, formative years of her life? And it’s hardly surprising, you might think, that her memory is not as good two years later, when the special hearing was recorded, as it was when she gave the VARE.
…
We’re dealing with someone who says that they were sexually assaulted as a — it started when they were a young child, and went on over many years. Memories of a long time passed. And so yes, there may be differences, there may be gaps in a person’s memory. They might not remember as much detail as time passes. And you’ll deal with that, but you need to understand it, in my submission to you.
He also pointed out that the VARE occurred much closer to the offending than the special hearing.
Later in his address he observed as follows:
Now clearly her account at the special hearing when she’s being cross-examined in a — by an experienced criminal barrister and being told time and time again, ‘It’s all right to say you don't remember’. Her evidence is littered with, ‘I don’t remembers’, you know, so it is hardly surprising really is it? But if think that that — they’re important differences, the fact she can’t give as much detail, that’s a matter for you, but I’ve already gone through the reasons why you should just say to yourselves, ’Well, yeah, that’s exactly what we expect.‘ I mean, you might ask yourselves, ’Well, how would I go? Would I be able to recite it like a parrot, two years later, when I’m at school and two years is a big chunk of my life’ and on it goes. ‘Would I be able to run it off by rote? And if she did, you might think, ‘Well that — that’s not so good, I don’t like that, or is this’ — would you be about to recount matters exactly the same every time, if you had to recount them? Would you?
The other thing is, you might think, ‘This would be a pretty traumatic experience, giving evidence in a trial about these sort of things.‘ I mean, one thing, go into a police station, unfamiliar environment, police lady asking questions. Another thing, coming along, taking an oath to tell the truth. It is a big deal, you know, pretty stressful, wouldn’t it? Pretty traumatic to you, to anyone, any of us, let alone an 18 year old.
In contrast, the applicant’s counsel addressed the jury on the differences between AR’s evidence on the VARE and at the special hearing as follows:
Look, having watched the VARE when you first saw that, you might have thought she’s done a pretty good job. She’s gone into a fair amount of detail, describing things that have happened, what, at that point, one year to nine years ago. That’s what she’s describing. Almost remarkable detail, members of the jury, almost remarkable detail.
By the time you get to the special hearing she could hardly remember anything. Think about the VARE. She was able to give dates. She dated almost everything. She was able to give detail. She was able to give surrounding detail of varying degrees. She was able to — and she’s recalling things, remember that, you know, are a while ago. So she’s calling on those memories that, you know, she’s thinking back to 2008, she’s thinking about 2011, 2013, 2014, recalling those things. It’s only two years that’s passed. She watched that VARE twice, the first part of it twice on the morning or on the day before she gave her evidence and the second part of it once. So she had a refresher, she’s been reminded of it. She’s apparently lived it. She’s recalled them once. How can she not recall them again? It’s only two years.
…
So, even despite that fairness [in the cross-examination], even despite the open-ended questions, despite me telling [her] about the allegations that she had made, in my submission, she still couldn’t remember. She said, ‘I don't know’, and, ‘I don't remember’, over 200 times, constantly. The whole tenor of her cross-examination was one of uncertainty. At times, she had absolutely no memory whatsoever of the allegations that she’d made.
And as I said to you, if you lived these events, if you’ve lived them, if they’re your memories that you’re drawing on in the back of your mind, what chances in two years that you’re going to forget it so thoroughly? You have to be satisfied beyond reasonable doubt, and in my submission, after that cross-examination, you just couldn’t be of these allegations.
The applicant’s counsel also reminded the jury of particular aspects of AR’s lack of memory at the special hearing when she addressed them on each individual charge.
We note at the outset that no objection was taken to the admission into evidence of the VARE. That was so even though, by the time the third jury was empanelled, the parties were aware that AR’s recorded evidence in the special hearing would reveal that she was unable to recall aspects and details of what she had said in the VARE. As this Court observed in Tukuafu v The Queen:
As a matter of principle and authority, there is nothing inherently objectionable about the admission into evidence 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 admission 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.[15]
[15][2014] VSCA 345, [56].
By reason of the procedure followed on the VARE, AR gave evidence at a time relatively close to the final allegation of sexual misconduct (approximately one year later), when she recalled the events. At the time of making the VARE, she appeared to have a relatively clear recall of the events subject of the charges, particularly those closest in time.
The applicant submits, however, that the lack of recall AR demonstrated at the special hearing, when she was cross-examined about the events that informed several of the charges, rendered the jury’s verdict unreasonable. He submits that it was unsafe to draw an inference in favour of AR’s reliability from the detail she provided in the VARE, in light of the evidence she gave at the special hearing.
We reject that contention. First, it is important to emphasise that, as noted above, the VARE occurred at a time relatively close to the final event that constituted the offending (for charges 15 and 16). Those events were alleged to have occurred between 23 September and 8 October 2016. The VARE was recorded on 24 October 2017 — approximately 1 year later. In contrast, the special hearing at which AR was cross-examined occurred on 8 October 2019, some 2 years after the VARE, some 3 years after the final offending, and many years after the earlier offending.
Second, the questions asked in the VARE were not leading, and no objection was taken to the form of the VARE. AR’s account included details about the offending and the circumstances in which it occurred. She described physical sensations, including pain, her emotional reaction to the events, and some of her discussions with the appellant at the time of the incidents.
Third, AR confirmed at the outset of the special hearing that what she said in the VARE was the truth. She was then cross-examined over two days. She was told on at least 10 occasions during the special hearing that if she did not know something, or if she could not remember something, she should say so.[16] She was told on one occasion she was ‘really good’ at doing that. On some occasions counsel for the prosecution asked her a question, followed by words to the effect of ‘or you can’t remember?’. To some extent, then, AR was prompted to answer questions in that fashion. It is plain that she took up that invitation on many occasions. However, although she was often unable to provide details, she steadfastly maintained that the events in question had occurred, even when it was put to her that the sexual acts she described did not occur.
[16]We note that this was suggested as an appropriate course in cross-examination of this kind by the intermediary who was present when AR gave her evidence.
Fourth, this was not a case where AR recanted the allegations made in the VARE;[17] nor was it a case where her answers in the special hearing contradicted what she had said in the VARE; and nor was it a case where she added to or embellished the answers she had given in the VARE.[18] Rather, it was a case where frequently she said she could not remember details of the allegations she had made in the VARE. However, it was not suggested that she attempted to manufacture evidence, or to cure any deficiencies in her earlier account; to the contrary, she often chose to state that she did not recall something rather than provide an answer.
[17]Cf DPP vO’Reilly [2015] VSCA 19.
[18]Cf Spence (a pseudonym) v The Queen [2016] VSCA 265, [53].
In short, the fact that, by the time of the special hearing, AR could no longer identify with clarity in cross-examination the details of the various acts the subjects of the 16 charges did not render the account she gave in the VARE unreliable, or the convictions unsafe and unsatisfactory. It was open to the jury to conclude that she was a truthful witness whose memory had lapsed since the offending and the VARE. It was also open to the jury to conclude that she may have been affected by the stress of cross-examination. As the Crown submitted, at the time of the VARE AR was young (having just turned 18), she had some learning difficulties, and the trial process can be an intimidating one, even with the protections afforded by the special hearing. It was not necessarily surprising that AR had difficulty recalling the details of a series of distressing and traumatic events which had occurred many years earlier when she was very young.
The law recognises that a person’s account of sexual offending can differ over time, and the trial judge directed the jury to that effect, as required by s 54D of the Jury Directions Act 2015. No objection was taken to his Honour’s charge. In that regard, it is significant that s 54D required the judge to direct the jury that differences in AR’s account may be relevant to their assessment of her credibility and reliability and that, among other things, experience shows that people may not remember all the details of a sexual offence or may not describe it in the same way each time, and that it is common for there to be differences in accounts of a sexual offence, including accounts given in different contexts.
A second issue raised by the applicant in his written case is what he says are ‘inconsistencies’ in AR’s evidence. The applicant gave only one example, namely AR’s evidence on the VARE that, on one occasion she ‘saw … cum… oozing out of his penis’. At the special hearing, she said she could not remember if she ‘saw cum come out’. She said she could remember telling police that that was what she saw, but could not actually remember seeing it. She then said she could remember seeing it. At the hearing of the application for leave to appeal, the applicant’s counsel did not press a submission that there were ‘inconsistencies’ or any contradictions in AR’s evidence, but submitted rather that the totality of the evidence meant that AR’s evidence on the VARE was unreliable. That shift in argument was properly made; in our view, the example identified in the written case is not properly to be regarded as an ‘inconsistency’ in AR’s evidence. Rather, it falls into the same category discussed above, namely a lack of recall.
A third issue raised by the applicant concerning the VARE is that on multiple occasions at the special hearing AR could not recall matters relating to various offences until she was prompted by counsel for the applicant reminding her of what she had said in her VARE. So much may be accepted, but again this falls into the same category as the first issue, namely a lack of recall. The prompting by the applicant’s counsel at the special hearing does not render what was said in the VARE unreliable.
In our view this is not a case where AR’s evidence on the VARE ‘contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force’.[19] While it can be said that her evidence at the special hearing ‘displays inadequacies’, these are not such in our view as to render the evidence she gave in her VARE unreliable. Further, the limitations in AR’s evidence were fully explored before the jury, as discussed above. An examination of the evidence leads us to conclude that it was open to the jury to convict the applicant on the relevant charges. In our view the jury was entitled to conclude that AR gave truthful evidence about the applicant’s offending even if, by the time of the trial, she had forgotten many of the details of the events in question, or was unable to recall them until prompted.
[19]See M (1994) 181 CLR 487, 494; [1994] HCA 63.
Was the allegation informing charge 1 improbable?
Charge 1 was a charge of incest alleging the penetration of AR’s vagina with the applicant’s penis. As noted above, the applicant said that the allegation informing charge 1 was improbable because of the age of AR at the time and the fact that there was no evidence that the offending — penetration of AR’s vagina by the applicant’s penis — caused bleeding or injury; because AR’s half-sister, aged 6 months, was asleep on the bed at the time; and because AR gave evidence that her mother was away at the time training for her work, when in fact that training had been completed some years earlier.
The Crown submitted that each of these matters were for the jury to decide. We agree. We also make the following observations about each matter raised:
(u) First, in relation to the absence of evidence about injury or bleeding, it is to be noted that, for an offence involving sexual penetration, the penetration involved can be penetration of the outer lips of the vagina, and the jury was directed to that effect. AR did not give evidence of what degree of penetration occurred, although she did say that she felt pain. But there was no evidence to suggest that the degree of penetration alleged was such as to have necessarily caused bleeding or injury. Nor did the applicant lead any expert evidence of the degree of injury, if any, to be expected from childhood sexual abuse of this kind.
(v) Second, in so far as AR said that the offending occurred while AR’s baby sister was on the bed, it was open for the jury either to conclude that the offending did take place in those circumstances, or that on this detail AR was mistaken. This did not render AR’s account implausible to the degree necessary to conclude that the guilty verdict on charge 1 was not open to the jury.
(w) Third, it is possible that AR was mistaken about the reason her mother was not present in the house at the time of the offending, without that meaning that the offending she was describing did not occur when her mother was absent. That is particularly so where the event in question occurred when she was around 7 years old, some 9 years before she was recalling it in the VARE. This did not render her account implausible.
Was it ‘improbable’ that the applicant ‘squeezed’ AR’s breasts?
AR alleged that on numerous occasions (some charged and some not charged) the offending involved the applicant ‘squeezing her breasts’. In the VARE she used hand gestures to demonstrate what she meant by this. The applicant tendered at trial several photographs that showed AR at various ages. These were said to demonstrate that AR was ‘flat-chested’. This was also put to AR in cross-examination, although there was no clear acceptance of that proposition by AR. The photographs, coupled with the young age of AR at the time the offending commenced, were said to demonstrate that there was ‘nothing for the applicant to squeeze’, rendering this aspect of AR’s evidence implausible.
Several observations may be made about this argument. First, the sensation experienced by AR could well have been described by her as ‘squeezing’, even if her breasts were insufficiently developed to be fully grasped. It is possible to ‘squeeze’ a flat part of a person’s body, such as a thigh, arm or chest, for example, even though those body parts are not apt to be grasped in the way a developed breast might be grasped. Second, in so far as the applicant relies upon the gestures of AR in giving evidence, and having viewed those parts of the VARE, there is little that can be drawn from those gestures in terms of understanding the nature of the conduct that AR alleged had occurred. Third, in each of the photographs the applicant relied on, AR is clothed and it is not possible to tell with any certainty whether, or when, her breasts had started to develop. Finally, at least one of the occasions where AR described the applicant as ‘squeezing’ her breasts occurred at the conclusion of the offending, when AR was 15. It is not at all implausible to think that, by that age, AR had started developing breasts capable of being ‘squeezed’.
Again, this issue was put to the jury, and did not cause them to form a reasonable doubt as to AR’s account of the applicant’s offending. Nor does it cause us to doubt AR’s account.
Was it ‘improbable’ that the applicant offended against AR almost every day for 8 years, regardless of who was in the house?
We note, in relation to this argument, that the applicant was not charged with offending against AR ‘almost every day for 8 years’. He was charged with 16 discrete offences, on 10 discrete occasions. However, when she first spoke to the police AR had said words to the effect that the offending occurred ‘all the time’, or ‘every day’. In cross-examination, when asked about what she had told the police, AR said that ‘all this was happening all the time. I told them the main ones that I remembered then, but over the time, after I remembered plenty more and some of them are the same things that he did over and over and over again’. In our view AR’s statement to the police is not to be understood as literally alleging offending every day, or even almost every day. That is particularly so given that she spent some weekends with her biological father. Rather, her evidence is to be understood as alleging that the offending was very frequent.
In our opinion it was open to the jury to accept AR’s evidence about the applicant’s offending even though, to an ordinary person, it may appear incredible that such offending occurred frequently, and at times when other family members were home and could have observed the applicant in the course of the offending. Unfortunately, it has been this Court’s experience that sexual offences committed against children in the family home often involve other family members being present elsewhere in the home, where there is a risk that the offending may be discovered if those other family members happen to enter the room in which the offending is taking place. It is not uncommon for this type of offending to have some ‘brazen’ features.
In the present case, the ‘brazen’ nature of the offending does not render AR’s account implausible. The fact that her evidence was that the applicant had engaged in offending in circumstances where there was an obvious risk of discovery did not mean that that evidence was untruthful. The jury was entitled to accept AR’s account notwithstanding that no member of the applicant’s family witnessed any of the offending, and despite the inherent risk that they might do so.
Was it ‘improbable’ that AR would have concealed the prolonged offending from her mother?
We do not accept that it was improbable that AR had concealed the offending from her mother for some 8 years. That is so even accepting the characterisation of AR’s mother, MM, as protective and vigilant. Parental ignorance of offending, even when occurring in the same household and by the parent’s partner, is sadly all too common.
In the present case, the applicant relies in particular on what is described as the vigilant and protective nature of MM as a mother. So much may be accepted. But MM was not always present in the home, given that she worked throughout most of the period of the offending and, on occasion, travelled outside Australia, leaving AR in the applicant’s care. That is not to criticise MM; it is simply to make the point that it is not always possible for a mother to be aware when her child is the subject of sexual abuse, especially if it is occurring when she is not at home.
The applicant points to the fact that MM said she was ‘shocked’ when AR accused the applicant of the various acts in question. That reveals no more than that she had been unaware of the offending. It does not support an argument that the offending had not occurred or that AR’s account was improbable. More telling was the account of MM’s conversation with AR: when MM asked AR why she had not told MM what was happening, AR said ‘How could I tell you, mum?’
The jury was entitled to accept AR’s account notwithstanding that she had not told her mother and that her mother had not otherwise discovered the offending.
Was it ‘improbable’ that AR did not complain about the sexual offending until October 2017, when she had made other complaints about the applicant’s behaviour?
We do not accept that the timing of AR’s statement about the offending to her teacher, her mother and the police made AR’s evidence improbable. Defence counsel submitted to the jury that AR had delayed in making the complaint, even though she had complained about other aspects of the applicant’s treatment of her.
Experience reveals that there is often a delay in the reporting of sexual offending. That is reflected in s 52 of the Jury Directions Act. Consistently with that section and s 53, the trial judge directed the jury as follows:
experience shows that people react differently to sexual offences and that there is no typical, proper or normal response to a sexual offence. Some people may complain immediately to the first person they see while others may not complain for some time and others may never make a complaint. It is a common occurrence for there to be a delay in making a complaint about a sexual offence. I also direct you as a matter of law that there may be good reasons why a person may not complain or may delay in complaining about a sexual offence.
His Honour went on to give some examples of why a person may delay in complaining about sexual offending:
The good reasons might include — and some of these may operate here, it is a matter for you — the age of the child, a failure to understand the sexual nature of the act, the use of threats, the impact of fear, a power imbalance between the complainant and the accused — here the head of the household, the shame associated with sexual offending, feelings of responsibility or of blame or of complicity, and of course the consequences of telling. All of those things, the Crown alleged, were in play here and explained the delay. In this case, there was some evidence of threats to obtain her silence and there was the explanation that [AR] offered to her mother, ‘How could I tell you?’
The judge also directed the jury about the possible prejudice to the applicant arising from the delay:
Now, on the subject of delay, there is another matter that I need to raise with you and it is the significant consequence of delay. And this is the impact that the delay has had on [the applicant’s] ability to defend himself against these charges. As you know, the earliest of them happened on the Crown case in 2008. So that is now 11 years ago. That is a long time. Because of this delay, the accused man has lost the chance to explore the circumstances of the alleged offending in detail through other investigation that may have uncovered evidence that would contradict [AR], particularly in relation to, for example, the whereabouts of her mother.
The jury would have taken these matters into account in assessing AR’s evidence.
As to the significance of AR complaining about non-sexual mistreatment by the applicant, it was open to the jury to conclude that AR felt able to complain of the non-sexual matters, but not able to reveal the much more serious sexual offending. These matters cannot lead to a conclusion that the guilty verdicts were not open.
The absence of corroborating evidence or evidence independent of AR
The absence of direct corroborating or independent evidence of the offending is not a basis on which to conclude that the verdict of the jury was not open (and nor was this aspect of the applicant’s case relied upon in isolation). It is the very nature of sexual offending — particularly historical sexual offending — that there is often no direct corroboration or independent evidence available. Plainly it is not necessary, as a matter of law, that there be independent evidence or corroboration. Rather, in this case, this issue was put as part of a cumulative collection of matters that, taken together, were said to show that the verdicts were not open to the jury. We return to a cumulative assessment below.
In any event, it is important to note that, in this case, there was evidence independent of AR that went some way towards supporting her evidence, and which contradicted the applicant’s evidence. That was the evidence of AR’s half-brother, ZZ (who was the child of the applicant and MM). ZZ’s evidence was significant because, although he did not witness any offending by the applicant against AR, he gave evidence that the applicant had on several occasions been alone with AR in a bedroom.
In his VARE, ZZ gave evidence that ‘a few times’ the applicant had taken AR into a room and then told ZZ and his younger sister, K, to ‘stay downstairs and don’t come upstairs’, and that he did not tell ZZ the reason why he told them to stay downstairs. ZZ then gave detailed evidence of one occasion on which this occurred, when he was 11 or 12, as follows:
So my dad, he’s — he — it was, like, maybe around lunchtime. He told my sister to — to come upstairs, so she had gone upstairs and her head was down and then he closed the door. So there’s a door going upstairs and then there’s, like, a hallway and there’s a door and then there’s, like, the kitchen and that. We were in the kitchen, me and my little sister [K], and he told us not to come up. And I kept asking him, ’Why?’ and he — he shouted at me and said, ’Don't ask why, listen to what I say.’
So I said, ’OK.’ And then — and then — so — we — me and [K] just stayed there ‘cause whenever he shouts at us we just listen to him ‘cause he’ll — he’ll get really, really mad.
And then they were up there for a bit, maybe, like, half an hour or something like that and it was, like, a pretty long time, I think it might be a bit more. They were just up there and I didn’t know what was going on. So I opened the door and screamed out, ’Dad, dad’, and then he — then he — then it took him a while, like, maybe two minutes. I screamed out, ’Dad’, again, then he opened the door and he said, ’What do you want?’ and he screamed at us. And then my sister, [AR], she came out — out of the room, like, maybe one or two minutes later and she was crying and I didn’t know why. And then [K] was, like, asking me — she was like, ’Why is [AR] crying?’ I said, ’I don't know, I wanna find out.’ And — and dad told us not to go to [AR] and then he said, ’Don't tell mum what we were doing’, ‘cause he wouldn’t let — he wouldn’t let us tell mum anything — what was going on at home when she wasn’t there.
And then, yeah, she was just there and then I went up to ask her and my dad saw me and then he shouted at me. He said, ’Why did you go up at ask her?’ then he punished me for — I think it was a week or something or so. Then he hit me a few times and then he took my stuff away and then mum came home.
In a further passage describing this occasion he said this:
And then after a while I started screaming out dad’s name and then I screamed out his name, I think, about - like, every - I just kept screaming his name out, ‘Dad, dad.’ Then I screamed out ‘[AR]’ and then I went up the stairs and then when I went up the stairs I kept screaming out and then he’s - he opened [AR's] room door and screamed out, ‘What do you want?’ And he - and then he - and then I said, ‘We're bored, you've taken so long. What are you doing?’ And he said, ‘Nothing. Go back downstairs, I told you not to come up here,’ and he kept shouting at me.
He also said this:
[M]y older sister, he just — he just told her to come upstairs and every time he told her to come upstairs her head used to be down … and she — she was just down for the rest of the day and then she’d be down for the day after. And my mum used to ask her, ‘What’s wrong?’ and she just said nothing and then — yeah.
ZZ adopted his VARE evidence at the special hearing. He was cross-examined in the special hearing, but did not depart from his account. In cross-examination he said that he had seen the applicant coming out of AR’s room. He also said that after that, when the applicant told him to go to his room upstairs, he saw AR crying in her room.
In our view it was open to regard ZZ’s evidence as supporting AR’s account, and as being inconsistent with aspects of the applicant’s evidence. In particular, the applicant gave evidence that he was never in AR’s bedroom with her with the door closed. ZZ’s evidence contradicted that. Further, ZZ’s evidence supported the proposition that the applicant had the opportunity to offend in the way described by AR.
The applicant’s denials and his good character
The applicant’s evidence that the offending did not occur, and the evidence of his good character, taken in isolation, cannot provide a basis on which to conclude that the verdict of the jury was not open. Again, this issue was put as part of a cumulative collection of matters that, taken together, show that the verdicts were not open to the jury.
A cumulative assessment
This is not a case where there were any ‘solid obstacles’ in the way of conviction. There was no issue that the applicant had the opportunity to commit the offences. AR did not recant her account, and was not demonstrated to have lied about any aspects of the offending. Rather, the applicant’s case is that the differences between AR’s evidence on her VARE and at the special hearing, coupled with the various ‘improbabilities’, taken together, must have resulted in a reasonable doubt as to the applicant’s guilt.
It is important, however, to note several matters in relation to this aspect of the applicant’s argument.
(x) First, although the differences between the evidence on the VARE and the evidence at the special hearing are significant, for the reasons we have already given we do not consider that those differences render the evidence given on the VARE unreliable. That therefore weakens any reliance on this feature when undertaking a cumulative assessment.
(y) Second, several of the alleged ‘improbabilities’ were matters that are not, in the experience of the courts, improbable or uncommon at all.
(z) Third, this was not a case where the asserted ‘improbabilities’ were compounding in nature.[20] That is, the various improbabilities were independent of each other, rather than linked.
[20]Pell (2020) 268 CLR 123, 164–5 [119]; [2020] HCA 12.
Ultimately, in our opinion, and bearing in mind the analysis above of each of the matters relied upon independently, there is no force in the proposition that, taken together, these various matters render the jury’s verdicts unsafe or unsupported by the evidence. The matters raised were all put to the jury, and the jury rejected them. The jury concluded that AR was a witness of truth. That conclusion was reasonably open on the evidence. That a jury might have reasoned differently, and might have entertained a doubt about the applicant’s guilt, is not to the point. We cannot conclude that the jury must have entertained a doubt as to the applicant’s guilt.
In that regard, we note that, as the High Court observed in Pell, ‘the jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses’.[21] And, as this Court observed in AK v The Queen, a jury will also ‘enjoy an advantage over an appellate court in not only seeing and hearing witnesses but also shortly thereafter participating in a collective deliberation process, which can be lengthy if required’.[22] As an appellate court, we are not called upon to perform our function in that way, nor do we have the advantages that the jury brings to the discharge of its function.
[21]Ibid 145 [37].
[22][2021] VSCA 165, [23]
As the test explained by the High Court in M requires, we have made our own independent evaluation of the evidence, including by viewing parts of AR’s VARE and the recording of her special hearing. In light of all the evidence, we consider that the jury was not compelled to experience a reasonable doubt as to the applicant’s guilt; it was open to them to conclude beyond reasonable doubt that the applicant had committed the offences with which he was charged.
For these reasons we would dismiss the appeal.
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