Thomas (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0028

PETER THOMAS (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]This judgment has been anonymised by the adoption of pseudonyms to ensure that there is no possibility of identification of a victim of sexual offending.

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JUDGES:	T FORREST, MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2023
DATE OF JUDGMENT:	21 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 87
JUDGMENT APPEALED FROM:	DPP v Thomas (a pseudonym) (Unreported, County Court of Victoria, Judge Chettle, 19 October 2021)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one count of committing indecent act with a child under 16 and two counts of sexual penetration of a child under 16 – Complainant discussed offending with witness between witness’ first and second video and audio recording of her evidence – Whether trial judge should have excluded witness’ evidence pursuant to s 137 Evidence Act 2008 – Applicant made no application at trial to exclude the evidence − Whether verdicts unsafe and unsatisfactory having regard to the whole of the evidence – Leave to appeal refused.

Evidence Act 2008, section 137; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; Em v The Queen (2007) 232 CLR 67; Murdoch (a pseudonym) v The Queen (2013) 40 VR 451; SLS v The Queen (2014) 42 VR 64; IMM v The Queen (2016) 257 CLR 300; R v Bauer (2018) 266 CLR 56, considered.

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Counsel
Applicant:		Mr CK Wareham
Respondent:		Ms EH Ruddle KC
Solicitors
Applicant:	O’Brien & Smith Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
MACAULAY JA
TAYLOR JA:

Introduction

The applicant is currently 44 years of age. On 5 October 2021 he was convicted of one charge of committing an indecent act with a child under 16 years,[2] and two charges of sexual penetration of a child under 16 years,[3] following a trial by jury in the County Court. He was sentenced by the Judge to a total effective sentence of 11 years and 6 months’ imprisonment, not to be eligible for parole for a period of 7 years and 6 months.
[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences Act) 1991, with a maximum penalty of 10 years’ imprisonment.
[3]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences Act) 1991, with a maximum penalty of 25 years’ imprisonment.
The applicant seeks leave to appeal his conviction on two grounds: first, that a substantial miscarriage of justice occurred due to the erroneous admission of the evidence of the complainant’s school friend, EE;[4] and, secondly, that the verdicts were unsafe and unsatisfactory having regard to the totality of the evidence.[5]
[4]Criminal Procedure Act 2009, s 276(1)(b).
[5]Criminal Procedure Act 2009, s 276(1)(a).
For the reasons that follow, the application for leave to appeal the convictions must be refused.

Circumstances of the offending[6]

[6]The following account is substantially taken from the trial judge’s reasons for sentence: DPP v Peter Thomas (a pseudonym) (Unreported, County Court of Victoria, Judge Chettle, 19 October 2021) (‘Reasons’).

The complainant, born in 2005, was raised by her maternal grandmother after her mother died whilst she was an infant. The applicant, Peter, had married the complainant’s aunt, Rachel,[7] in 2002. The complainant often stayed with the applicant and Rachel, first in Melbourne and then in rural Victoria after the applicant and Rachel relocated in 2011. She referred to the applicant as her uncle.
[7]A pseudonym.
When the complainant was 6 years of age, and was staying with the applicant and Rachel at their house in rural Victoria (‘the country house’), she was applying a topical ointment or ‘moisturiser’ to her eczema when the applicant entered the room. He took the moisturiser from her and proceeded to touch her chest and stomach beneath her singlet. This act formed the basis of Charge 1, indecent act with a child under 16 years.
When the complainant was around 8 or 9 years of age, she stayed at the country house during a school holiday together with EE. They slept in separate single beds in the same bedroom. The applicant entered the bedroom during the night whilst EE was sleeping. The complainant said that she pretended to be asleep when she heard the applicant enter the room. The applicant then removed the complainant’s pants, positioned himself on top of her, held her arms and inserted his penis into her vagina. He proceeded to penetrate her for five to 10 minutes before leaving the bedroom. She recalled bleeding from her vagina after this event. This conduct constituted the basis of Charge 2, sexual penetration of a child under 16 years.
When the complainant was either 9 or 10 years of age, she spent the night at the applicant’s cousin’s house in a suburb in Melbourne’s south-east for a family birthday celebration. The complainant shared an inflatable mattress with the applicant’s son, who was around 6 years of age. The applicant entered the bedroom and got on the mattress before inserting his fingers into the complainant’s vagina. She pretended to be asleep but then unsuccessfully tried to push the applicant away. The penetration lasted five to 10 minutes before the applicant’s son started to wake, causing the applicant to leave the bedroom. This conduct formed the basis of Charge 3, sexual penetration of a child under 16.
In about 2017, the complainant was having a conversation with her school friends about sex. The topic of incest arose and the complainant ‘froze’ and became visibly upset. EE pulled her aside and asked her if she was alright. The complainant told EE that ‘something similar’ had happened to her and that her uncle ‘did stuff to her when she was little’.
Subsequently, EE gave an account in two pre-recorded VAREs (visual and audio recording of evidence) and two Special Hearings about the complaint the complainant had made to her during the school conversation and also about her recollection of events on the occasion she stayed with EE at the country house. Both VAREs, and the evidence from the two Special Hearings, were admitted into evidence at trial. The admissibility of that evidence was not challenged. As detailed further below at [15], immediately following her first VARE, EE communicated with the complainant over Snapchat about the alleged offending (‘the Snapchat conversation’). In her second VARE, EE told police that she wished to correct some things she had said in her first VARE. It is this sequence of events which is the foundation for the first proposed ground of appeal.
The applicant was arrested and interviewed on 26 March 2019. One week prior to his arrest, the complainant telephoned the applicant from the Bendigo police station, with police recording the phone call (the ‘pretext call’). The pretext call is detailed below at [71]. During that call, the complainant said she did not want the applicant to touch her ‘like [he] did when [she] was little’. He responded that he was sorry, and acknowledged he was ‘pretty fucked up’. Nevertheless, he denied any sexual touching or penetration of the complainant. As will become apparent, there was contention over what was meant by the applicant’s acknowledgment and apology.
Before turning to the first ground, it is useful to mention at this point a second complaint made by the complainant about another family member. On the same day that she undertook a VARE concerning the applicant, she also made a separate VARE concerning allegations about a sexual assault perpetrated upon her by a cousin of her biological father. The father’s cousin left Australia before any charges could be laid in relation to those allegations. Some answers the complainant gave in relation to that complaint about being a virgin at the time of that offending assumed some significance in the applicant’s trial as will be seen when we come to deal with ground 2.

Ground 1: EE’s evidence ought to have been excluded

Ground 1 was expressed in the following terms:
A substantial miscarriage of justice occurred in that the evidence of EE ought to have been excluded on the basis that the probative value of the evidence was substantially outweighed by the danger of its unfair prejudice.
In substance, the applicant’s first proposed ground of appeal alleges that a substantial miscarriage of justice was occasioned by the contamination of EE’s evidence, as given in her second VARE, because of the Snapchat conversation EE had with the complainant immediately after her first VARE.
EE undertook her first VARE on 15 April 2019. She informed the police about the schoolyard conversation described above at [8], including that the complainant told EE that her uncle forced her to have sex with him. EE understood this to mean penile-vaginal intercourse. When asked by police for the uncle’s name, EE said the complainant did not tell her his name, describing him only as an uncle ‘from Melbourne’. Although EE was able to give some evidence of having stayed with the complainant at the country house on holiday, she did not recall any particular incident that had occurred whilst she was there. Moreover, from her recollection the complainant was ‘comfortable’ and ‘fine there’.
Once EE returned home after the first VARE she initiated the Snapchat conversation with the complainant. EE told the complainant she did not know she would have to talk to police. The complainant explained to EE that the police had asked her to identify the people to whom she had disclosed the offending and she told police EE was one of them. The following further conversation then took place:
[EE] Yeah nah that’s ok I didn’t know who it was but the Lady told me after they stopped the camera
[Complainant] Wdym?
[EE] Well I told her everything I knew I accidentally said u 13 fuckin hell
I was scared tbh
But then I told her everything I knew
And then coz I was talking about Auntie [Rachel] but I forgot about ur uncles name and she asked how he looked and I said no offence but black and then we kept talk and then when the cameras stop she said it was [Peter]
And I got it mixed up I thought it was someone from Melbourne and then she said about ur cousin and I was like fuck! That’s the Melbourne guy not ur uncle
But it was kina too late coz I said I think he may have been from Melbourne
…
After some conversation about another person who knew about the events, they continued:
[EE] Yeah all g I’m probs going to get dad to call them tho coz I remember more stuff now
[Complainant]           Yea okay
[EE] Yeah I feel soooo bad I said 13!! Not 14 coz u have turned 14
And dude plus when we went to there place when was it?
[Complainant]           Ahah it’s okay
It happened then, when you were there
That’s why I wanted to leave earlier but nanna wouldn’t let me
[EE]   Ooohhhhh that makes sense!
Thanks don’t tell me anything else I got this
…
A further conversation took place about who else the complainant had spoken to about the events, and then they continued:
[EE] Yeah but did u end up telling me it was [Peter] in 2016 I fell like u did
Feel*
[Complainant]           Yea I reckon I did
[EE]   Yeah coz now I’m remembered a lot more
[Complainant]           Yea thanks so much tho it’s going to help my case x
[EE]   Yeah all g
Can I ask I’m not going to say this to her because I don’t know it happened but I could kinda see stuff if u get what I mean but when and where did it happen
I’m not going to say that to her coz idk it did
[Complainant]           wdym
[EE]   Like, was it night time day or afternoon
[Complainant]           He did it to me from when I was 6-11
[EE]   And inside the shed or car or what
Ok but when I was there
[Complainant]           In the room at night
[EE] When I was asleep or when u went back inside when we slept outside or when I was having a shower?
[Complainant]            When you were asleep
[EE]  Oh
[Complainant]            Yea I remember trying to wake you up
[EE]  Oh
Crap
I wake up easy tho now
Back then I was hard to wake up
[Complainant]            Yea I should have been louder
Yea I remember
[EE]Yeah ok well I can’t tell her that part coz I didn’t see it happened
[Complainant]            Yea
EE’s second VARE took place some 10 months later, on 10 February 2020. EE said she had remembered further details about the week she spent at the complainant’s uncle’s house. She described how she and the complainant set up a tent in the backyard of the property to sleep overnight. At some stage, they both relocated to a shared bedroom inside the house, mainly because the complainant ‘wet the tent’. They slept in two separate single beds. EE recalled waking up and was surprised to see the bedroom door open as they always preferred the door to be shut. She said she saw the complainant sitting upright in bed looking ‘petrified’. The complainant told EE she wanted to go home, even though they had five days left of their planned stay. The complainant called her grandmother asking to be picked up, but was told they should remain at the country house until the end of the holiday period.
In that VARE, EE also gave further details about the complaint the complainant had made to her around 2017, saying that the complainant had said that the reason that she had wanted to go home was that her uncle had ‘done stuff’ to her, and that she had tried to wake EE up but was unable to do so. Asked if any of these further details had been told to her by anyone else she said ‘no’ and that the ‘memories just popped up’ after the first VARE.
On 16 March 2021, EE participated in a Special Hearing in which she corrected certain aspects of her first and second VAREs. She said she believed that she and the complainant stayed at the applicant’s country house around during the Easter holiday period, and not the summer holidays as she had previously thought. EE also clarified the layout of the bedroom, including that her single bed was closer to the door and the complainant’s bed closer to the window. Counsel for the applicant cross-examined EE. It emerged during that cross-examination — apparently because of something counsel had asked EE during a pre-hearing conference — that EE had checked her telephone and found a text of the Snapchat conversation after her first VARE. The Special Hearing concluded shortly after that evidence emerged.
The trial commenced on 29 September 2021. In May 2021, between the date of the first Special Hearing and the commencement of the trial, the defence were provided with images of the Snapchat conversation and a short audio snippet from that Snapchat conversation.
During the course of the trial, on 1 October 2021, EE participated in the second Special Hearing. Under cross-examination from defence counsel, EE said she could not remember stating in her first VARE that the uncle was ‘from Melbourne’; agreed that she had been told by the policewoman after the first VARE that the suspect was Peter; acknowledged she had been told by police not to speak to anyone else about the case; but agreed that, after the first VARE, she in fact spoke to the complainant via the Snapchat conversation. She further agreed that she had initiated the Snapchat conversation because she felt she had ‘mixed up what she told the police’, in particular that the complainant told her that the person was an ‘uncle from Melbourne’ whereas she understood that Peter was not from Melbourne.
She also agreed that in the Snapchat conversation she had asked the complainant for some details, such as whether the incident had happened during the day or the night, being informed by the complainant that it had happened whilst EE was asleep. EE agreed that such details formed part of the subject matter she gave at her second VARE.

Applicant’s submissions

The applicant submitted that the ‘reliability and credibility of [EE’s] account were irreparably compromised’ as a consequence of the Snapchat conversation, which ‘fundamentally altered’ her evidence. As a result, submitted the applicant, EE’s evidence never should have been before the jury and ought have been excluded pursuant to s 137 of the Evidence Act 2008 (‘EA’). That section stipulates:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Relying on several decisions of this Court and the High Court — namely SLS,[8] Murdoch,[9] Bauer[10] and IMM[11] — the applicant submitted that ‘the possibility of joint concoction or contamination must be assessed to determine the probative value of the evidence’.[12] Further, ‘unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of the probative value excludes consideration of credibility and reliability’.[13] The Snapchat conversation, it was submitted, was direct evidence of EE and the complainant colluding, concocting and/or collating evidence. Consequentially, EE’s evidence fell into the category of evidence where the risk of contamination was so great that it could not rationally be accepted.
[8]SLS v The Queen (2014) 42 VR 64; [2014] VSCA 31 (‘SLS’).
[9]Murdoch (a pseudonym) v The Queen (2013) 40 VR 451; [2013] VSCA 272 (‘Murdoch’).
[10]R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (‘Bauer’).
[11]IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (‘IMM’).
[12]SLS (2014) 42 VR 64, [170] (Ashley, Redlich and Priest JJA).
[13]Bauer (2018) 266 CLR 56, [69] (The Court).
The applicant argued that the evidence of EE was extremely significant in the context of a word-on-word contest between the complainant’s account and the applicant’s denials (made in his record of interview). The corroborative impact of EE’s evidence in her first and second VAREs was to bolster the complainant’s account. Because her second VARE was the product of collusion, all of EE’s evidence should have been excluded under s 137 of the EA. The fact that no application was made by trial counsel to exclude it ought not to be determinative given its profound impact on the fairness of the trial.

Respondent’s submissions

The respondent submitted that EE’s evidence was not inadmissible under s 137 of the EA, first, because no application was made to have the evidence excluded. The trial judge could not have weighed the probative value of EE’s evidence against the risk of unfair prejudice to the applicant unless asked to do so. Having not been asked to do so, it could not be argued on appeal that the admission of the evidence was the result of error, nor that failing to exclude the evidence under s 137 was productive of a substantial miscarriage of justice.
Even had the applicant applied for EE’s evidence to be ruled inadmissible under s 137, the respondent submitted that the application would not have succeeded. The respondent submitted that EE’s evidence was not ‘tendency evidence’ — or, perhaps more pertinently here, coincidence evidence — with which the principles in SLS and Murdoch were concerned. Whereas the probative value of coincidence evidence lies in the coincidence of two witnesses describing similar conduct completely independently of one another, that was not the intrinsic feature of EE’s evidence.
Here, the respondent submitted, evidence from EE’s first VARE — undertaken prior to the Snapchat conversation — was not led as coincidence evidence but as first hand observations that lent support to some aspects of the complainant’s account in relation to Charge 2. Whilst the Snapchat conversation may be relevant to assessing the credibility or reliability of EE and the complainant as witnesses, it did not render EE’s evidence inadmissible due to unfair prejudice.

The respondent also submitted that the content of the Snapchat conversation could not amount to collusion in any event. First, before the complainant relayed any further facts about the alleged offending, EE informed the complainant that she was going to make a further statement to the police because she had remembered more information. EE then said to the complainant ‘… don’t tell me anything else’ which, the respondent argued, showed a clear intention to keep their accounts separate.
It was further submitted by senior counsel for the respondent that there may have been a good forensic reason why defence counsel at trial did not seek to have the evidence excluded under s 137. EE’s evidence was used by defence counsel to undermine her credibility. Defence counsel cross-examined EE on her evidence and made much of the Snapchat conversation during his final address. It was open to the court to infer that defence counsel at trial made a forensic decision to not seek to exclude EE’s evidence, and the collusion, as it may have been more beneficial to the accused to have such evidence before the jury to discredit the complainant.

Analysis

The starting point is to identify the character of EE’s evidence given in each of the two VAREs. There were two aspects to her evidence. The first was evidence of her own observations whilst present during the period when the events of Charge 2 occurred. That is to say, direct evidence relevant to a fact in issue, namely whether an incident occurred during the holiday at the country house. The second aspect was EE’s hearsay evidence of having been told by the complainant about an incident that occurred on that holiday, admissible under s 66 of the EA. Neither was relied upon as or had the character of tendency evidence — or more pertinently — coincidence evidence.
At one point in time, the mere possibility of concoction or collusion was thought to be destructive of the very foundation of tendency and coincidence evidence.[14] That was because the admissibility of similar fact evidence was premised on there being no reasonable explanation for the similarity other than the inculcation of the accused with the offence charged. Therefore, its admissibility depended on it having the quality of being not reasonably explicable on the basis of concoction. The very possibility of concoction eroded that quality.
[14]SLS (2014) 42 VR 64, [170] (Ashley, Redlich and Priest JJA), citing Pfennig v The Queen (1995) 182 CLR 461; Hoch v The Queen (1998) 165 CLR 292; Murdoch (2013) 40 VR 541.
That principle was weakened, if not overruled, by the High Court in IMM and Bauer. In assessing whether tendency evidence has significant probative value, or in assessing probative value of evidence for the purpose of s 137 of the EA, the trial judge is now required to take the evidence at its highest and no question of its reliability or credibility arises at the point of determining its admissibility.[15] It was in that context that the Court in Bauer, referring to IMM, said that unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of the probative value excludes consideration of credibility and reliability.
[15]IMM (2016) 257 CLR 300, [52] (The Court).
The applicant’s reliance upon the principles in SLS and Murdoch as supporting the view that the evidence of EE, either of a direct nature about a fact in issue or of a hearsay nature about the complaint, was inadmissible per se because it was possible (or even probable) that it was the product of contamination or collusion, is misplaced for two reasons. First, EE’s evidence was not tendency or coincidence evidence, being the type of evidence about which the principles were concerned. Secondly, and in any event, at the point of determining admissibility, the position since IMM is that questions of the reliability and credibility of the evidence do not arise unless the nature of the alleged contamination or concoction is such that no rational jury could accept it.
This case is a long way from one in which the risk of collusion or contamination was so high that it could not have been rationally open to the jury to accept EE’s evidence at all.
Although the complainant and EE had the Snapchat conversation, it is evident that the extent of the information revealed by the complainant fell a long way short of explaining the detail EE later gave in her second VARE about her recollections of the events on the holiday. At the outset of the Snapchat conversation, EE said she wanted her father to ring the police for another interview because she ‘remember[ed] more stuff now’ and said ‘don’t tell me anything else I got this’. Later, however, she was told that the incident occurred while EE was asleep in the room at night.
Therefore, there was no basis to conclude that no rational jury could accept her account given in her second VARE about having woken up and seeing the complainant sitting on the bed looking petrified, and wanting to go home. She may have independently remembered that detail. The jury might also have accepted EE’s evidence that she had been mixed up about which uncle the complainant had been speaking about. These positions were at least open to a jury; they were not foreclosed to them simply due to the fact of the Snapchat conversation, or because of its content. The jury saw and heard EE cross-examined about that evidence. It was for the jury to determine the reliability and credibility of that aspect of her account.
If a judge makes an evaluative judgment that the danger of unfair prejudice outweighs the probative value, that judge ‘must’ exclude the evidence; that is once the evaluative judgment is reached, the outcome is mandated by the section.[16] In making that evaluative judgment, as indicated, the judge takes the evidence at its highest and excludes any consideration of its reliability or credibility.
[16]Em v The Queen (2007) 232 CLR 67, [102] (Gummow and Hayne JJ); [2007] HCA 46 (‘Em’).
There has been some debate as to whether a court can invoke s 137 on its own motion.[17] Whether or not that is possible, at a practical level the applicant bears the onus to persuade the judge that the danger of unfair prejudice outweighs its probative value.[18] Furthermore, despite the danger of prejudice, an accused may consider that the evidence has some value in his or her own favour sufficient to justify taking the risk of it having a prejudicial effect, and therefore not seek to invoke s 137 at all.
[17]See Gilmour v EPA (2002) 55 NSWLR 593; [2002] NSWCCA 399 (‘Gilmour’); Em (2007) 232 CLR 67; R v DG (2010) 28 VR 127; [2010] VSCA 173 (‘DG’); Karam v The Queen [2015] VSCA 50.
[18]R v Polkinghorne [1999] NSWSC 704 (Levine J); Gilmour (2002) 55 NSWLR 593, [46] (Santow JA, Hidden and Adams AJJA agreeing, [80]–[81]); DG (2010) 28 VR 127, [52]–[54] (Buchanan, Weinberg and Bongiorno JJA); Kuehne v The Queen [2011] NSWCCA 101, [21] (Hislop J, McColl JA and RS Hulme J agreeing).
In the present case, EE’s evidence given at her first VARE was, in important respects, favourable to the applicant. EE’s recollection was that the complainant was ‘comfortable’ and ‘fine’ on the holiday. Further, although recalling that the complainant had told her in around 2017 about an uncle who had ‘done stuff’ to her, EE’s recollection was that the uncle was ‘from Melbourne’. Insofar as EE’s evidence at the second VARE departed from those positions, the applicant’s counsel had the text of the Snapchat conversation available to him by the time of the second Special Hearing which he was able to put to EE in order to challenge the reliability and credibility of her account given in that second VARE. This he did.
Defence counsel chose not to challenge the admissibility of EE’s evidence but to seek to gain the benefit of EE’s account from the first VARE, while criticising the account in the second VARE as being the product of collusion and, at the same time, seeking to discredit the complainant herself for having been involved in collusion. Therefore, in his final address, defence counsel argued that EE’s account given in her first VARE supported the version given by another witness that the complainant’s complaint had concerned ‘an uncle from Melbourne’, and further highlighted EE’s evidence that the complainant had been ‘comfortable’ and ‘fine’ during the holiday at the country house. In contrast to the evidence given in her first VARE, counsel argued that the jury could not rely upon EE’s second VARE because of the coaching she had received from the complainant as to what she should say. It was contamination at best, he argued, and at worst, collusion.
There was nothing irrational or incompetent about this approach. If there was a risk in not challenging EE’s evidence because of its potentially corroborative value for the prosecution, it could fairly be judged as a risk worth taking in circumstances where the applicant had made very damaging remarks in the pretext call, and any evidence that could be adduced to cast doubt on whether the applicant was the ‘uncle’ who had offended against the complainant represented the best chance of securing an acquittal. We consider that counsel’s approach on this issue was entirely justifiable in the exercise of sound forensic judgment.
In any event, even had defence counsel taken a different view and sought to have the evidence excluded, the judge was not bound to conclude that the danger of unfair prejudice outweighed the probative value of the evidence. The probative value of EE’s recollection of the complainant sitting up in bed and looking petrified, and wanting to go home, was at least significant; as was the fact of the complainant making a complaint to EE within 2 years of an uncle having had sexual intercourse with her. Plainly that evidence, if accepted, would be prejudicial to the applicant but such prejudice would need to be unfair for it to have a capacity to counter the probative value under s 137. Here, any unfairness was lessened if not eliminated by the fact that the content of the coaching was fully exposed and capable of being addressed through cross-examination, argument and judicial directions.
In our view there is no substance in the applicant’s proposed first ground.

Ground 2: The verdicts are unsafe and unsatisfactory when regard is had to the totality of the evidence

The principles relating to the inquiry necessitated by s 276(1)(a) of the Criminal Procedure Act 2009 are well settled. The question for this court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.[19]
[19]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’).
In Libke v The Queen,[20] the High Court summarised the function of appellate courts as:
The 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.[21]
[20](2007) 230 CLR 559 (‘Libke’).
[21]Ibid 596–7 [113] (Heydon J).
An appellate court must make an independent assessment of the evidence. It must also proceed upon the assumption that the jury assessed the complainant’s evidence to be credible and reliable.[22] A doubt an appellate court experiences when embarking on an independent assessment will, in most cases, be a doubt which a jury ought to have experienced. However, the court must consider that the jury is entrusted with the primary responsibility of determining guilt and give full weight to the advantage it had in seeing and hearing witnesses give their evidence.[23]
[22]Pell v The Queen (2020) 268 CLR 123, 145 [39] (The Court); [2020] HCA 12 (‘Pell’).
[23]M (1994) 181 CLR 487, 492–4 (Mason CJ, Deane, Dawson and Toohey JJ).
It is only where such an advantage is capable of resolving a doubt experienced by an appellate court that the court may conclude that no miscarriage of justice occurred. If, even making full allowance for the advantages enjoyed by the jury in assessing the credibility of witnesses, the appellate court concludes that there is a significant possibility that an innocent person has been convicted because the evidence on the record is tainted, contains discrepancies, displays inadequacies or otherwise lacks probative force, that court is bound to act and set aside the impugned verdict.[24]
[24]Ibid 493–5 (Mason CJ, Deane, Dawson and Toohey JJ).
The consideration of proposed ground 2 requires a review of the evidence presented to the jury at trial.

The complainant’s evidence

The complainant’s evidence was pre-recorded in a VARE and a Special Hearing. The complainant gave the name by which the applicant was known to her and said that he lived in the country house with her aunt, Rachel, the applicant’s two children, and the complainant’s brother.
In her VARE the complainant recounted an occasion when she was about six years old and visiting Rachel at the country house. She was putting moisturiser on her arms to treat her eczema when the applicant entered the room and began to assist her. He then proceeded to touch her stomach and her chest, underneath her singlet, without applying moisturiser. The complainant recalled being very uncomfortable and not knowing what to do, so she just stood still. This occurred in the complainant’s cousin’s bedroom, with no one else in the room at the time.
On a different occasion, the complainant visited her aunt Rachel’s country house with EE. In her VARE the complainant recalled being around eight years old at the time but later clarified in her Special Hearing that she thought she was older. She and EE were staying in the spare room. The applicant entered the spare room in the night and the complainant pretended to be asleep. The applicant then positioned himself on top of the applicant, removed her pants and inserted his penis into her vagina. The complainant continued to pretend to sleep. This lasted for five to 10 minutes before the applicant got off her. The next day, the applicant pretended nothing had happened. This was the first time that the applicant had inserted his penis into the complainant’s vagina. EE was in a single bed on the other side of the room to the complainant whilst this occurred. The complainant said she did not speak to EE about what had happened. She also stated that she remembered ‘bleeding the next day or that night’.
When the complainant was nine or 10 years old, she said that she stayed at the applicant’s cousin’s[25] house for one night in a south-eastern suburb of Melbourne. The complainant slept on an inflatable mattress with the applicant’s son. The applicant came into the bed. The complainant said she recalled the applicant inserting his fingers into her vagina. She was pretending to sleep whilst also trying to push the applicant away. The applicant got up and made an angry grunting noise because his son had woken up. The complainant said this episode lasted five to 10 minutes.
[25]The complainant incorrectly refers to this person as the applicant’s brother, although it was not in dispute who she was referring to.
The complainant also gave evidence of other uncharged acts. She said that the applicant continued to have sex with her for a number of years before she stopped going to her aunt’s house when she was about 11 years old. She described other instances of sexual offending allegedly committed by the applicant, including being forced to rub his penis until he ejaculated. She later stated at the Special Hearing that she could not remember this. The complainant also said that she believed the instances of sexual intercourse and other sexual acts happened more than once but she could not recall specifics. She said this would occur every time she visited her aunt and the applicant, which was usually every school holidays.
The applicant told the complainant she would get in trouble if she told anyone about the offending.
The complainant said that she disclosed the offending variously to her stepmother, ‘KE’, her friends, LJ and MG, as well as the school nurse Ms Deocampo. She did not mention telling EE.
The complainant also said that, at the beginning of 2019, the applicant contacted her to say that he and the family missed her. The complainant said that she told the applicant that she remembered everything, asked him not to contact her again because he made her feel uncomfortable, and she blocked him on Facebook.
At the Special Hearing, under cross-examination by defence counsel, the complainant denied that the applicant ever disciplined her by smacking her and specifically denied being smacked ‘on the butt’ for an incident that had occurred while the applicant and Rachel were living in Melbourne. As will be seen below, this evidence was relevant to the applicant’s explanation for the apology he made in the pretext call.
In an earlier VARE undertaken by the complainant on 1 March 2019, the complainant said she had been subject to sexual offending by the father’s cousin, in January 2019. She told police that Joel had inserted his fingers into her vagina at a house in Melbourne. She said it felt like it was ‘ripping’ because she was a virgin. Later, when questioned by defence counsel at the Special Hearing, the complainant said she was not telling the truth in that VARE.[26]

The complainant’s stepmother

[26]The transcript of this earlier VARE did not form part of the evidence before the jury.

KE is the complainant’s stepmother. She explained that on the morning of 5 January 2019, the complainant told her that she had previously been sexually assaulted. The complainant told her that the applicant had touched her over a period of three years, but that he had not engaged in any sexual touching over the last two years. The complainant did not provide specific details beyond that the offending occurred at her grandmother’s house and at her aunt’s house during the school holidays. She said had not told anyone because she did not want anyone to get into trouble. KE recalled that the complainant appeared anxious whilst disclosing the offending to her.

The school nurse

Ms Deocampo was the school nurse at the complainant’s high school. Ms Deocampo met with the complainant on 21 February 2019 for a counselling session. The complainant informed Ms Deocampo that she was having flashbacks of a time when her uncle had gotten into bed with her and inappropriately touched her. She said that the sexual offending occurred from when she was three years old until she was about seven or eight.
Noting that the complainant was extremely upset during her recollection of the events, Ms Deocampo did not press for more information at the time. Instead, she felt it was sufficient to proceed with reporting the matter. Ms Deocampo made disclosures to the principal and arranged to speak with the complainant the following day to elicit further details of the offending. The complainant told Ms Deocampo that the offender was her ‘Uncle Peter’, who was her aunt’s husband. Ms Deocampo and the complainant reported two separate matters to police and the Department of Human Services the following day.[27]

Evidence of EE

[27]One matter concerned the allegations about the applicant; the other concerned allegations relating to an entirely separate incident with her father’s cousin in January 2019.

The evidence of EE is described above at [14]–[22].

Evidence of LJ and MG

The complainant’s friends, LJ and MG, both undertook VAREs on 15 April 2019. LJ said that the complainant had told her that her uncle had raped her and ‘did sexual stuff to her’ and that the offending occurred at her uncle’s house. LJ said the complainant told her this on the school bus around the start of 2018. MG said that the complainant told her that her uncle had ‘come onto her in the past and raped her or sexually assaulted her’. MG thought the complainant identified the offender as ‘one of [her] uncles from Melbourne’.

Evidence of the complainant’s grandmother

The complainant’s grandmother told the jury that the complainant lived with her after the complainant’s mother died when she was 15 months old. The complainant would often visit her aunt, Rachel, and the applicant at the county house during school holidays.
The grandmother gave evidence relating to the applicant’s attitude to smacking the children. On one occasion when both the complainant and her brother — who normally resided with the applicant — were staying with the grandmother, her husband gave the complainant’s brother two smacks. She said that the applicant came to her house later that day and yelled at her and her husband saying ‘You know we do not agree with smacking, how dare you smack him’. The grandmother did not speak with the applicant or Rachel for about three months after this incident.
When cross-examined by defence counsel, the grandmother said that the police had told her that the applicant claimed that the answers he gave in the pretext call concerned a time when he had smacked the complainant for disciplinary reasons. (The pretext call is discussed in detail at [71].) The grandmother agreed with defence counsel that the applicant and Rachel did not believe in smacking and that it was against their values.
She also gave evidence that the complainant enjoyed going to the applicant’s country house. The complainant also never disclosed the offending to her. She said that the complainant continued to visit her aunt and the applicant until around 2018, when the grandmother had a falling out with the applicant and Rachel. After this time, the complainant only visited the country house on one further occasion in February 2019 and did not stay the night.
The grandmother said that the complainant did suffer from eczema but only on her cheek. When asked if she also had outbreaks on other parts of her body that required moisturiser or a special cream, the grandmother said no. But she went on to say that she had taken the complainant to the local doctor who said there was no ‘medical’ reason for a cream.

The pretext call

Following the complainant’s reporting of the allegations to police, she attended the Bendigo Police Station on 16 March 2019 to make a recorded telephone call to the applicant. From the transcript of the pretext call it appears that, at the time of the call, the applicant was at the country house.[28] After the complainant told the applicant she was scared to visit the applicant’s house, the applicant asked ‘what for’ and the following conversation ensued:
[28]The extract from the pretext call appearing below is taken from Exhibit G, a typed transcript tendered in evidence at the trial. Arguably, it differs in some respects from what might be heard from the audio recording of the call, also tendered in evidence at trial. In particular, the line ‘Is that when you were up here?’ appearing in the typed transcript, or perhaps the context in which it was said, is less clear in the audio recording. At trial, defence counsel contended that it was spoken in response to a question not appearing in the typed transcript. Nevertheless, at the oral hearing of the application it was only the typed version contained in Exhibit G that was the subject of submissions and discussion.
[Complainant]           Because I don’t want you to touch me again, like you did when I was little.
[Applicant]               Never ever.
[Complainant]           Huh?
[Applicant]               Never ever.
[Complainant]           What do you mean?
[Applicant]               Never ever.
[Complainant]           You did.
[Applicant]               I said never ever again.
[Complainant]           But why did you do it?
[Applicant]               … that’s how – it’s pretty fucked up.
[Complainant]           Yeah.
[Applicant]               …
[Complainant]           I just feel uncomfortable …
[Applicant]               Yeah, shit. Is that when you were up here?
[Complainant]           Yeah. If ---
[Applicant]               Oh, I see.
[Complainant]           If – if I do come.
[Applicant] Oh yeah. I gotcha. No, nuh, never ever. Fucking hell. Jesus Christ.
[Complainant]           Why’d you do it?
[Applicant]               I was pretty fucked up and I do apologise.

The applicant’s record of interview

The applicant was arrested and interviewed on 26 March 2019. He denied the allegations. The transcript of his record of interview was tendered as evidence. Relevantly, the allegation was put to the applicant that he rubbed moisturiser on the complainant’s stomach and her breasts. He was asked in his police interview what he could tell the police about that allegation, to which he responded:
Not that I remember, though, yeah, I dunno, I just can’t remember specifics like this that you just mentioned, yeah, nuh, nuh, can’t remember. I dunno, went and – like I said, like, there’s no difference, all – all the – I consider these kids are mine, so I have done it probably plenty of times, yeah, even on Traydon and Roshan and Isaac, every one of them, yeah, I dunno. Not … think and nothing like that, but I – I – I’m not going to say I haven’t done it, I would’ve done it at some stage, but not that I remember specific, like you just mentioned. If I did it, it could’ve been when they were young, but I’m sorry, though, but, yeah, that’s all I can say.
When asked by the police whether ‘there [have] been any times where there’s been anything sexual happen’ between him and the complainant, the applicant answered:
Not that I remember. I dunno if she’s – she’s taken anything the wrong way, but I honest[ly] can’t remember. Not that way, in my mind anyway, no.
When pressed on what he meant by the complainant possibly taking anything ‘the wrong way’, he clarified that he could not remember if he had rubbed the moisturiser on her chest or back.
The applicant otherwise strongly denied the allegations that he had inserted his fingers or penis into the complainant’s vagina on any occasion.
The applicant was asked about the pretext phone call. At the outset of their questioning the police did not inform him that they possessed a recording of the conversation. The applicant recounted a brief conversation with the complainant about birthdays in the family before the call was disconnected. He said that was the extent of the conversation. At this point, the police informed the applicant they had a recording of the conversation, and the complainant had said to the applicant on the telephone ‘I don’t want you to touch me again like when I was little’. The applicant then said he recalled that conversation. When invited to provide his version of the telephone call, he said:
[Informant] This is your chance to tell us what’s – what’s happened.
[Applicant] Mm, yeah, yeah, I thought, I think she might’ve had that – I don’t know why, actually, yeah, back of my mind. ‘Cause she did sort of not much communication with me at all last few times, as in, you know, not bugger all on the phone, yeah, she – I’ve always wondered why, though, I – yeah. I’m sort of trying to think back as well, why, but – yeah. Don’t worry about it, it’s in her mind, if I apologise, you know, we could once again be a happy family sort of thing. But I’m just trying to remember what – yeah. I shouldn’t have said that, should I? Oh, well, it’s my own fuckin’ fault anyway.
[Informant]Tell me about it being your fault.
[Applicant]Yeah, yeah, yeah, I shouldn’t have.
[Informant]Shouldn’t have what?
[Applicant]I might’ve — not that I specifically remember, though, I might’ve, like you said, put moisturiser on her when she was little, but never, ever — never, ever had sex with her or anything like that. Yeah, back of her mind — back of her mind might’ve been something that, yeah, she might’ve thought that I’ve done wrong when she was little, that’s what I was apologising for, yeah.
[Informant]“I don’t want you to touch me again like when I was little”.
[Applicant]Yeah, yeah.
[Informant]And that you said you were “pretty fucked up”.
[Applicant]Yeah, shouldn’t have said that. Anyway —
[Informant]Tell me about being fucked up.
[Applicant]I was just trying to make her feel better. If she thinks that I — I shouldn’t have done that — but anyway, yeah, I was thinking completely something else, nothing like, this when I was talking with her.
[Informant]Completely — like, tell me — about that.
[Applicant]We never — we never hit kids, hardly ever. We might’ve given her one smack in a blue moon, never — we’re not smacking parents at all. But one day, it was over something that she did … for, I think it was Roshan, I gave her a good whack on the bum, she started going to tears. I still remember that ‘cause I never forget, and I never done it to anybody else, and I never … yeah that’s …
I though hat’s what she was talking about, but now you’re telling me all this, now I gotta put – put together where it’s coming from.
The applicant did not give evidence at trial however the defence called his wife, Rachel.

Evidence of Rachel

Rachel said that after she and the applicant relocated from Melbourne to the country house in December 2011, the complainant and her brother would stay at the house most school holidays and also some weekends. The complainant’s brother moved into the applicant’s and Rachel’s house in June 2018, which is when the complainant ceased regularly visiting the property.
Rachel gave evidence that, in 2014, the complainant’s friend, EE, joined the complainant for a week at the country house during a school holiday. Rachel did not notice behaviour out of the ordinary for the complainant during this week. The complainant slept in a bedroom with EE and the applicant slept with Rachel in their own bedroom.
Rachel said that she never saw or heard the applicant get up during the night during the week the complainant and EE stayed there, nor did she wake up to find the applicant not in bed with her. There was no suspicious behaviour from the applicant. She said she would have heard the applicant get up in the night as the floorboards would creak.
The complainant did not disclose any offending to Rachel. Rachel said that she did not notice any blood on the bedsheets.
In further evidence, Rachel said that the complainant came to visit the Rachel and the applicant with another relative in February 2019. They stayed the night and left the next day. Rachel’s evidence was that the complainant would tell her she looked forward to coming to visit and there was never an occasion when the complainant said to her that she wanted to go home.
Rachel described the complainant as suffering from eczema that was prone to ‘flaring up’ when she was younger. The complainant would need to use moisturiser or another medicated treatment to prevent the flare ups. Rachel or another adult would help the complainant apply moisturiser from ‘top to bottom’, and it would not have been unusual for the applicant to apply the complainant’s moisturiser.
Rachel also said she and the applicant did not believe in smacking children. There was, however, one occasion when the applicant smacked the complainant when she was six or seven years old. This occurred while they lived in Melbourne. After the event, the applicant apologised to the complainant. Rachel said that smacking did not occur again.

Submissions on ground 2

The applicant submitted that there were ‘critical inconsistencies’ in the complainant’s evidence. These alleged inconsistencies are categorised as follows: the moisturiser issue; the virginity issue; the complaint issue; the uncle from Melbourne issue; and the issue of the location of the offending. When combined with the ‘imprecision’ of her complaint, the applicant argued that these inconsistencies, individually and in combination, ought to have led the jury to entertain a reasonable doubt as to the applicant’s guilt on each charge.
The respondent submitted that none of the applicant’s alleged inconsistencies render the verdicts of the jury unreasonable or not able to be supported having regard to the evidence.

The moisturiser issue

The applicant detailed numerous ‘inconsistencies’ with regard to the moisturiser issue, pertinent to Charge 1. He pointed out that, in her VARE, the complainant said the eczema was only on her arms but, despite this, the applicant took the moisturiser off her and ‘was just not putting it in the right places. He just kept touching me everywhere’. Later in the same VARE the complainant was asked to provide some further details on that event. The complainant then said ‘No, he — there was no moisturiser, he was just feeling me’.
The complainant’s grandmother, who was called as a prosecution witness, said that whilst the complainant did suffer from eczema, no creams were used as treatment.
Rachel’s evidence, on the other hand, was that the complainant had to use a medicated treatment cream for her eczema which she would apply ‘from top to bottom’ of the complainant. Rachel also said she was sure the applicant had applied this cream to the complainant but she was not able to pinpoint an exact date or time. In cross-examination she told the prosecutor she never saw the applicant apply moisturiser to the complainant’s chest.
The applicant submits that the credibility of Rachel was not seriously challenged, nor was it put to her that she was lying or mistaken about her description of applying moisturiser to the complainant.
The respondent submitted that defence counsel asked the complainant’s grandmother ‘… did she also have outbreaks on other parts of her body as well [as her face] that would require moisturiser or a special cream?’ It was not explored with the witness whether the complainant had outbreaks of eczema elsewhere that did not require a special cream. The grandmother’s evidence was not in ‘significant contrast’ with the complainant’s account of the events giving rise to Charge 1.
The respondent argued further that Rachel’s evidence that she never saw the applicant apply moisturiser to the complainant’s chest is not inconsistent with Charge 1 as the complainant did not contend that Rachel was present for that event. It was also noted that when the complainant provided further details of Charge 1 in her VARE she said there was no application of moisturiser and that the applicant was just feeling her.
The respondent submitted none of the matters raised by the applicant on the moisturiser issue were in meaningful conflict with the prosecution case, nor was there any meaningful inconsistency in the complainant’s evidence.

The virginity issue

As foreshadowed above at [11], the complainant made an earlier VARE that did not form part of the evidence before the jury. In that earlier VARE she made a complaint against her father’s cousin for conduct alleged to have occurred in January 2019. She told the informant she was a ‘virgin’ at the time of that incident. However, that statement could not sit consistently with the complainant’s allegations of the applicant having had penile-vaginal intercourse with her for five to 10 minutes, between March 2013 and April 2015, giving rise to Charge 2.
Additionally, in her VARE concerning the applicant, the complainant recounted the event giving rise to Charge 3. She told the informant that she remembered bleeding either later that night or the next day. When asked whether she had her period at that age, the complainant replied ‘I think so. I think I got it, like, when I was nine though’.
Later during the same VARE, the informant asked the complainant whether Rachel ever spoke to the complainant about her period. The complainant said ‘Rachel was talking to us about it but I remember I didn’t have it then … ‘cause I remember [EE] had it but I didn’t’.
Thus, it was submitted by the applicant that there was conflicting evidence provided by the complainant as to whether or not she had experienced her period.
The respondent submitted there is no inconsistency identified in the applicant’s submission on the ‘virginity issue’. At trial, the fact that the complainant made a statement which she later admitted was not true was explored. The jury were therefore informed of the lie and directed that it was a relevant matter. This did not, however, mean that it was not open to the jury to accept the complainant’s evidence regarding the charges against the applicant.
With respect to Charge 2, the complainant’s evidence was that she bled later that night or the next day. The applicant’s wife, Rachel, gave evidence that she did not remember seeing blood on any bedsheets. This does not reveal an inconsistency. The complainant’s evidence was not that she had bled on the sheets, or in the bed. Instead, it was simply that she recalled bleeding. The location of the blood was not divulged, nor were any steps taken by the complainant upon understanding she was bleeding. With this being the case, the evidence of Rachel that she does not remember seeing blood on bedsheets was, according to the respondent, ‘neither here nor there’.

The complaint issue

The applicant argued that there were inconsistencies connected with the evidence of the complainant making a complaint about the applicant. First, in her VARE, the complainant identified KE as the first person she told about the offending. She later, however, said she had previously told her friends, and identified LJ and MG.
A second inconsistency claimed by the applicant is that at no time did the complainant give evidence that was consistent with EE’s account. The complainant also did not provide evidence that she told EE about the offending. This is in circumstances where EE provides an account of the same occasion during which the applicant’s offending allegedly took place.
The respondent submitted that there was no meaningful inconsistency in the complainant’s evidence in these respects.
In EE’s evidence she recalled the complainant telling her of the applicant’s offending. In the complainant’s evidence, she did not list EE as a friend whom she had told about the offending. However, the complainant did not categorically reject telling EE of the offending — instead, she simply did not list her when asked who she had told. Further, argued the respondent, it is also apparent from the Snapchat conversation that the complaint did recall telling EE about the applicant’s offending in about 2016.
The respondent conceded that, in her VARE, the complainant was asked whether she ‘ever spoke to [EE] about what happened’ and said she had not. But the respondent submitted that it was never clarified whether the complainant was referring to not making the sort of detailed disclosures about the offending, as she had just made in her VARE immediately preceding that question. In oral submissions, the respondent also referred to the potential ambiguity as to whether the complainant’s answer was to be taken as not telling EE on the occasion the event happened, or at all.

The ‘uncle from Melbourne’ issue

The applicant submitted that there was significant confusion by EE and MG as to who the complainant was referring to as the offender. This is shown at [15] above wherein EE said to the complainant in the Snapchat conversation that she told the police she thought the offender was an uncle from Melbourne. MG, as described above at [65], also thought the complainant had identified the offender as being an uncle from Melbourne.
It was ultimately submitted that LJ’s evidence, at its highest, identified the offender as ‘an uncle’, but not the applicant, and that EE and MG’s evidence was about an uncle from Melbourne, being the father’s cousin (who was the subject of the complainant’s earlier VARE).
The respondent submitted that the evidence given by EE, MG and LJ is capable of supporting the complainant’s account and is not inconsistent with her evidence. The uncertainties and confusion that arose from their evidence was exposed before the jury and the jury nonetheless resolved the factual issues, as that is the jury’s ‘quintessential’ role. There is nothing in the evidence of EE, MG and LJ that could compel the jury to acquit the applicant.

The location of the offending

The prosecution case was that Charges 1 and 2 concerned offending at the applicant’s country home and that Charge 3 related to an event at the applicant’s brother’s home in Melbourne’s south-east.
The evidence of KE, described above at [61], was that the complainant had told her the offending occurred at her grandmother’s home and at aunt Rachel’s home. The applicant argued that the version of events given by KE is inconsistent with the account of the complainant, who at no stage in her VARE said that the offending occurred in her grandmother’s home.
The respondent submitted that the inconsistencies as to location were overstated. The respondent pointed out that complainant’s evidence was that the applicant committed offences against her in a number of locations over a period of time, not all of which led to charges. But the complainant also particularised the occasions which led to the three charges on the indictment. KE’s evidence that the complainant disclosed offending against her occurred at the country house and her grandmother’s house is therefore not inconsistent with the complainant’s account. Given the absence of inconsistency, the respondent submitted that this issue provides no basis on which to conclude that the jury’s verdicts are unreasonable.

Analysis

In our view, none of the matters raised by the applicant, either individually or in combination, were such that they must as opposed to might have caused the jury to entertain a doubt about the applicant’s guilt. At most, there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard, but that alone is not enough.[29]
[29]Libke (2007) 230 CLR 559, 596–7 [113] (Heydon J).
On the whole of the evidence, the case against the applicant was a strong one. In particular, the evidence of the pretext call was very damaging for the applicant in as much as it contained credible evidence of an admission of sexual interest in the complainant. His only explanation for his apology and reference to having been ‘pretty fucked up’ was that he was referring to his remorse for having smacked the complainant when she was young. However, the jury was entitled to be sceptical about that explanation. First, the nature and strength of the language used between them is harder to reconcile if the conversation was about an event of smacking eight or so years earlier, with no repetition of any such behaviour since, rather than about allegations of serious sexual misconduct. Second, the episode of smacking had apparently occurred in Melbourne whereas the event or events the complainant and the applicant were both alluding to in the pretext call seemed to concern when she was at the country house, as was intimated by the applicant’s question, ‘Is that when you were up here?’ and the complainant’s answer, ‘Yeah’.[30]
[30]See however n 28 above.
Furthermore, the complainant gave a forthright account of three incidents, being the charged acts. In accordance with Pell, the Court is to assume that the jury found her to be a reliable and credible witness. Her account derived at least some corroboration from the observations of EE as recounted in her second VARE, as well as from the accounts given to the various witnesses of complaint namely LN, MG, KE and Ms Deocampo.
In addition, there was nothing that the defence was able to point to as explaining why the complainant would make up these allegations against the applicant.
In that context we turn to evaluate whether any of the five issues identified by the applicant were of such a nature that the jury was bound to have a reasonable doubt about the applicant’s guilt. In doing so, we bear steadily in mind that the primary witness whose evidence is challenged, namely the complainant, was, at all relevant times, a child giving evidence of events that occurred earlier in her childhood attended by significant anxiety in giving her account.

Moisturiser issue

This issue appeared to have three aspects. The first was that here was a degree of inconsistency in the evidence from the complainant and family members as to whether any and if so what cream or moisturiser was applied to the complainant to treat her eczema condition, and whether it was applied only to parts of her body or to the whole of her body. The second was an apparent internal inconsistency in the complainant’s evidence, saying in one part that the applicant was not putting the moisturiser on in the right places and, in another, that there was no moisturiser being applied but he was just ‘feeling me’. The third was whether the evidence was sufficient to sustain a finding beyond reasonable doubt that any touching was ‘indecent’ given the account by the applicant in his record of interview, and the evidence of Rachel, that it was not uncommon for the applicant to assist from time to time in applying moisturiser to the complainant.
Although these were all matters which the jury was required to scrutinise, we think, first, that there was sufficient evidence for the jury to be satisfied beyond reasonable doubt that the touching was indecent. The complainant said that the applicant was not ‘putting it in the right places’, ‘touching me everywhere’ and ‘just feeling me’. This was evidence that the applicant used an occasion for moisturising some eczema-affected parts of the complainant’s body to touch her in unaffected areas, such as her chest. Further evidence capable of sustaining a finding of indecent touching was the complainant’s evidence of the way it made her feel, that is, ‘I was very uncomfortable’.
Given that there was sufficient evidence to sustain a finding of indecent touching, the areas of claimed ‘inconsistency’ or ‘discrepancy’ are, in our view, of relatively minor degree. Whether the applicant used the occasion in which the complainant was applying moisturiser to herself to touch her on body parts unaffected by the eczema, or began by applying moisturiser himself and then extended his touching to unaffected parts is, to the extent that there is an inconsistency at all in those accounts, hardly one that would compel a jury to reject the complainant’s account altogether.
Finally, the fact that there was some divergence between family members about the nature of applications applied to the complainant, and to what parts of her body, may be explicable by differing recollections, differing experiences, or differing understandings about what they were being asked.

Virginity issue

There is no question that if the complainant’s allegations against the applicant were true, she told a lie to the police in her first VARE given on 1 March 2019 concerning the allegations against her father’s cousin when she said that she was a virgin. But that lie was exposed, cross-examined upon and made the subject of forceful submissions. Undoubtedly, it had the capacity to cause the jury to doubt the complainant’s account of the allegations against the applicant. But it was the jury’s task to assess whether on the whole of the evidence they were satisfied beyond reasonable doubt of the applicant’s guilt despite the complainant telling that lie. This is quintessentially within the jury’s domain and we find no reason to think that a jury might not still be persuaded beyond reasonable doubt of the applicant’s guilt notwithstanding evidence of the lie.
Relatedly, the apparent inconsistency between the complainant remembering bleeding either later on the night of the events of Charge 2, or the next day, on the one hand, and the evidence of Rachel saying she has no recollection of ever finding blood on the sheets, on the other, turns out to be no inconsistency at all. The complainant did not say she bled on the sheets; in fact, she did not say and was not asked where she bled.

The complaint issue

The complaint issue seems to involve two aspects: first that the complainant gave different accounts of who was the first person she told about having been sexually assaulted by her uncle; the second that she failed to nominate EE in any of her accounts of those she told about the offending and, relatedly, that her evidence did not align with EE’s account as given in the second VARE in any event. We do not find any of these matters to be indicative of significant inconsistencies or discrepancies.
As we have said, it must be remembered that the subject matter of this argument concerns a lack of precision as to the sequence of events and of who was told about matters, as recounted by a young girl looking back over a stretch of years. For example, although the complainant did not list EE as one of the friends who she told about the offending, that cannot be construed as an affirmative statement that she never told EE. The closest that the evidence got to such a state was when the complainant was asked in her VARE, at one point, whether she ‘ever’ spoke to EE about what happened, and she answered ‘no’. The difficulty with that question and answer is that it was set amongst a series of questions about what happened on the night in question relating to Charge 2 and about the week during which EE stayed at the country house. In that context, we accept that there is a degree of ambiguity about the question and answer. The question and answer might reasonably have been taken by the complainant to be confined to the Charge 2 circumstances. In particular, the word ‘ever’ needed to be picked up and understood by the complainant in that context as extending well beyond that week in order for her answer to be inconsistent with evidence that she later disclosed the events to EE in the schoolyard.

Uncle from Melbourne

It will be recalled that MG and EE gave evidence at various points that the complainant had told them that the perpetrator of the sexual offending was, they believed, an uncle ‘from Melbourne’. EE later retracted that account but that was only after the Snapchat conversation. In each case, the accounts given by the two complaint witnesses were exposed. Much was made by defence counsel before the jury about the inconsistency between their accounts of who the complainant told them had perpetrated the assaults and the complainant’s evidence that it was the applicant, as well as the claimed unreliability of the complainant’s account generally.
Once again, this does not appear to be a matter of such significance that, alone or in combination with other matters, it must compel a jury to have a reasonable doubt about the complainant’s account. To the extent that it might be thought there was some confusion between the complainant making allegations against her father’s cousin in Melbourne, and her allegations about the applicant, any such confusion was unlikely to have been the source of any misidentification of who the ‘uncle’ was. First, the allegations about the digital penetration by the father’s cousin post-dated the disclosures made by the complainant to her friends MG and EE. Secondly, there is no evidence that the complainant ever referred to her father’s cousin as her own ‘uncle’.
In the end, this was another matter for the jury to scrutinise and to assign whatever weight it considered appropriate when considering all of the evidence.

Location

Finally, in argument the applicant relied upon some apparent inconsistency and discrepancy in the complainant saying that some of the sexual assaults had occurred at her grandmother’s house whereas the charged acts occurred at the country house and at a relative’s house in south-eastern Melbourne. However, as pointed out by the respondent, the complainant gave evidence about the applicant having sexually assaulted her on occasions other than the charged acts so that, ultimately, there is no necessary inconsistency in her account of some incidents occurring at places other than where the charged acts occurred.

Conclusion

As stated at the outset, we are not persuaded that either alone or in combination the matters raised by the applicant are of such a nature that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt. Leave to appeal on the second proposed ground is refused.
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[2023] VSCA 87

21 April 2023