Wayne Spence (a pseudonym)[1] v The Queen
[2016] VSCA 265
•11 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0047
| WAYNE SPENCE (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | REDLICH, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2016 |
| DATE OF JUDGMENT: | 11 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 265 |
| JUDGMENT APPEALED FROM: | DPP v Spence (Unreported, County Court of Victoria, Judge Pullen, 26 June 2015) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of 3 charges of indecent act with child under 16 (his biological daughter), 1 charge of incest and 1 charge of common law assault – Whether inconsistencies and other features of complainant’s evidence rendered verdicts unreasonable or unable to be supported having regard to the evidence – Ground not made out.
CRIMINAL LAW – Application for leave to appeal against conviction – Whether judge erred in admitting into evidence two statements by complainant that she lost her virginity to applicant during one of the charged events – Ground not made out – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Johns | Theo Magazis & Associates |
| For the Crown | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA
KYROU JA:
Introduction and summary
On 19 February 2015, the applicant (now aged 39) was convicted by jury of three charges of indecent act with a child under 16 (his biological daughter), one charge of incest and one charge of common law assault. The applicant was acquitted on one charge of incest and the jury was discharged without verdict on two further charges of incest.
Following a plea on 19 June 2015, the applicant was sentenced on 26 June 2015 to a total effective sentence of 4 years and 7 months’ imprisonment with a non-parole period of 2 years and 9 months.
The applicant seeks leave to appeal against the convictions principally on the ground that the verdicts are unreasonable or cannot be supported having regard to the evidence.[2] The applicant also relies on a ground relating to the admissibility of evidence by the complainant that she lost her virginity to the applicant during one of the charged events. A third ground was abandoned prior to the hearing of the application for leave to appeal.
[2]Criminal Procedure Act 2009 s 276(1)(a).
For the reasons that follow, the application for leave to appeal will be refused.
Complainant’s evidence of the circumstances of the offending
In June 1995, the applicant formed a relationship with Christine Banks.[3] Ms Banks had two children at the time, one son and one daughter, who lived with Ms Banks and the applicant in New South Wales. The complainant was born to the applicant and Ms Banks on 28 September 1996. Soon after the complainant was born, her older half-sister moved to a different part of New South Wales to live with her biological father. Ms Banks and the applicant had another daughter and two sons together. In February 2008, the applicant and Ms Banks moved with their four children and the complainant’s older half-brother to a regional town in Victoria (‘Town’).
[3]This is the pseudonym used for sentencing purposes.
In April 2008, the applicant’s half-brother moved into the house with his 16 year old girlfriend Lauren Spence.[4] In August 2008, the applicant commenced a relationship with Lauren and as a result, Ms Banks and the applicant separated. The applicant and Lauren left the family home and commenced to live together at another address in the Town. After this, the complainant and her siblings would spend time with the applicant at his new house on weekends.
[4]This is the pseudonym used at trial for sentencing purposes.
The charged events occurred between approximately 2008 and 2011 when the complainant was between 11 and 14 years of age and the applicant was between 31 and 34 years of age. The charged events are described at [8]–[22] below. Those paragraphs set out the prosecution case which was based on the complainant’s version of events. At trial, the applicant disputed the complainant’s version of events.
The first incident occurred after the family moved to the Town, and before the complainant’s twelfth birthday. The incident occurred on an occasion when Ms Banks was out shopping for groceries with the complainant’s older half-brother and the applicant was at home with her and her younger siblings. The applicant led the complainant to her bedroom, told her to sit on a chair and locked the door behind him.
The applicant put his hand down the complainant’s top. As he did this he said he wasn’t doing anything wrong. The applicant slid his hand down through the complainant’s top and under her t-shirt, pushed her bra out of the way and started to feel her breast. The applicant then pulled the complainant’s pants down, pulled her underpants down to her knees and told her not to move or cry. He then started, in the words of the complainant, ‘feeling around down there’. His finger went around the inside of the complainant’s legs and the complainant’s vagina but did not go inside (charge 1, indecent act with a child under 16).
The whole episode went on for what the complainant estimated to be half an hour. The applicant and the complainant then heard Ms Banks returning to the house in her car. The applicant stopped, unlocked the door and walked out of the bedroom.
The second incident occurred about two weeks or a year[5] after the first incident when the applicant and the complainant were at home together. The complainant was in the study using a computer when the applicant entered and locked the door behind him so that the room became dark. There were two computers set up in the study. The applicant put a disc into the older computer and a menu of images, which included ‘threesome’, ‘kitty-cat play’ and ‘69’, appeared on the screen. The applicant chose the ‘threesome’ option which was a movie of two men and a woman engaging in sexual activity (charge 2, indecent act with a child under 16).
[5]As discussed at [37] below, the complainant gave inconsistent evidence about the temporal gap between the first and second incidents.
The complainant tried to move her head away to avoid watching the movie but the applicant pulled her head into a position that forced her to watch it. The complainant asked the applicant what she had done wrong and the applicant said ‘Don’t say anything’.
The applicant moved the chair on which the complainant was sitting so that she was in front of the computer with the pornography on it and near to the applicant. He asked the complainant what she had liked about what had happened last time. She said that she didn’t like any of it and the applicant replied, ‘[t]oo bad because it’s gunna happen again’. At about this point, the complainant’s younger sister knocked on the door and the applicant told her to go and play with the boys. The applicant then put his hand down the complainant’s top around her breasts for about a minute and a half.
The applicant then pulled the complainant’s pants and underpants down around her knees and ‘started playing around’. He felt up the complainant’s leg and then inserted two of his fingers inside her vagina (charge 3, incest). This caused the complainant pain and she moved back, got up out of the chair and attempted to get dressed. The applicant then grabbed the complainant and pulled her over his knee. He took her hand and put it down his pants onto his penis. The complainant said it felt like a snake and two balls. The applicant held the complainant’s hand on his penis and genitalia for about two minutes (charge 4, indecent act with a child under 16). The complainant’s older half-brother or Ms Banks[6] then came to the door and wanted to come in. The applicant turned the pornographic movie off and pushed the complainant away. He got dressed, opened the door and went out of the room.
[6]As discussed at [36] below, the complainant gave inconsistent evidence about whether her half-brother or her mother came to the door.
The third incident happened after the applicant and Lauren had moved into their own house in the Town, when the complainant was visiting them. The applicant and the complainant were sitting in the lounge room watching a Spiderman movie while Lauren and the other children were in bed. The complainant got up to drink some cordial. When she returned, she leaned against the couch before the applicant pushed her onto the couch and took her clothes off. He pushed her knees apart and put his penis inside her vagina. The complainant was about to scream when the applicant put his hand over her mouth and told her not to scream. He moved back and forth and this caused the complainant pain and some bleeding. The applicant ejaculated on the complainant’s stomach (charge 5, incest).
Once the applicant had finished, he said to the complainant ‘[i]t was way more easier after I’d popped your cherry’. The complainant started to cry and the applicant said to her, ‘What are you crying for? It’s better off that I did and not somebody else’. He got up and threw the complainant’s clothes at her and said, ‘[g]et dressed and go to bed’. The applicant then went to bed.
The fourth incident occurred the following evening, when the complainant and her siblings were still staying at the applicant’s house. The complainant and the applicant were again alone in the lounge room after the other children and Lauren had gone to bed. At about 12:30am, the applicant got up to check on Lauren and when he returned to the couch he had with him a vibrator. The complainant said to the applicant, ‘what do you want that for?’ and he replied, ‘You’ll find out’. One of the complainant’s younger brothers came out to get a drink which caused the applicant to put the vibrator in his pocket and tell the complainant not to move. When the complainant’s brother returned to bed, the applicant told the complainant to strip down from the hips. The complainant said no. The applicant then grabbed the complainant and took her clothes off. The complainant continued to say no. He said, ‘Why are you carrying on like this? I thought that it was better off that I did it instead of somebody else.’ She said, ‘I don’t want this to happen’. The applicant then hit the complainant across the face and told her to shut up (charge 6, common law assault).
The applicant then threw the complainant onto the couch, spread her legs and told her not to move. He put his mouth over her mouth. As he did this, he put the vibrator inside the complainant’s vagina. He drew circles with the vibrator around the complainant’s vagina and then put it inside her vagina. The applicant repeated this process three times (charge 7, incest).
Lauren could be heard getting up and the applicant told the complainant to get her clothes back on. She got up and was going to run to Lauren, but he picked her up and threw her back onto the couch. He told the complainant to stay there or he would do it again. The complainant sat there and the applicant went to bed. The complainant later went to bed herself.
After that weekend, the complainant avoided going to stay at the applicant’s house. Sometime later, Ms Banks formed a relationship with her current husband and moved in with him together with the complainant and her siblings.
The fifth and final incident occurred on a Wednesday when the complainant and her younger siblings went to stay with the applicant. He drove the complainant to Ms Banks’ house in order to feed some pet animals which the family owned. The complainant went into her bedroom to get some things and change her clothes. While she was naked from the hips down, the applicant came into her bedroom and pushed her onto her bed so that her face was against the blankets on the bed. The applicant got on top of her. His body weight was resting on her and she could hardly breathe.
The applicant then spread the complainant’s legs and put his penis into her vagina. The complainant tried to scream but he pushed her face into the blankets and inserted his penis into her vagina (charge 8, incest). This went on for about five minutes and then the complainant was able to get away. She got her clothes and ran to the toilet, where she got dressed. She waited there until she heard the applicant leave the house in his car. She then walked to the applicant’s house knowing that her siblings and Lauren would be there.
In early 2012, the complainant told Ms Banks that the applicant had ‘touched’ her but she declined to go to the police at that time.
On 9 June 2012, the complainant spoke to the police about the incidents outlined above. She provided a VARE on that day.
The applicant was interviewed by the police on 1 July 2012. He denied committing any of the alleged offences.
Evidence at trial
The prosecution case rested on the evidence of the complainant, with some support from evidence given by Ms Banks.
The complainant gave evidence of the circumstances of the applicant’s offending, as summarised at [5]–[22] above, by way of the VARE provided to police, and a pre-recorded special hearing, both of which were played to the jury.
Ms Banks gave evidence about the family’s living arrangements both before and after she separated from the applicant, the applicant’s contact with their four children after the separation, the complainant’s attitude to staying at the applicant’s house and the complainant’s disclosure of the applicant’s offending in early 2012.
The applicant did not give or call any evidence. As discussed below, the defence submitted to the jury that it should reject the complainant’s evidence because it was unreliable.
Prior to trial, the applicant made an application to exclude two statements that the complainant had made during the VARE about her loss of virginity. That evidence, and the application to exclude it, are discussed under ground 2 below.
Conviction and sentence
On 19 February 2015, the jury found the applicant guilty of charges 1, 2, 3, 4 and 6. The jury found him not guilty in relation to charge 8 and was discharged without verdict in relation to charges 5 and 7. Following a plea hearing on 19 June 2015, the applicant was sentenced on 26 June 2015 as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Indecent act with a child under 16 – touch vagina in bedroom | 10 years’ imprisonment | 12 months’ imprisonment | 4 months |
| 2 | Indecent act with a child under 16 – pornographic movie in study | 10 years’ imprisonment | 18 months’ imprisonment | 6 months |
| 3 | Incest – digital penetration in study | 25 years’ imprisonment | 3 years’ imprisonment | Base |
| 4 | Indecent act with a child under 16 – touch penis in study | 10 years’ imprisonment | 18 months’ imprisonment | 6 months |
| 6 | Common law assault – slap to face in lounge room | 5 years’ imprisonment | 8 months’ imprisonment | 3 months |
| Total Effective Sentence: | 4 years and 7 months’ imprisonment | |||
| Non-Parole Period: | 2 years and 9 months’ imprisonment | |||
| Other orders: Registration as a sex offender for life. | ||||
Ground 1: Whether the verdicts are unreasonable
As we have previously stated, ground 1 of the applicant’s proposed grounds of appeal is that the jury verdicts are unreasonable or cannot be supported having regard to the evidence.
It was common ground that the test to be applied by this Court in determining whether the jury verdicts are unreasonable or cannot be supported having regard to the evidence was encapsulated in the following statement of Hayne J in Libke v The Queen:[7]
[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.[8]
[7](2007) 230 CLR 559.
[8]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (citations omitted) (emphasis in original). Gleeson CJ and Heydon J agreed with Hayne J. See also M v The Queen (1994) 181 CLR 487, 493–5, 501–5, 508–9, 525.
Submissions in relation to ground 1
The applicant observed that the case against him relied entirely upon the jury accepting the reliability and credibility of the complainant’s account and that if there was any doubt about her evidence, the applicant was entitled to be acquitted. According to the applicant, the complainant’s account was ‘utterly implausible and improbable’. The applicant relied on a number of general and specific matters which he submitted, in combination, ‘required that the jury should have had a doubt about the applicant’s guilt’. The general matters included that the complainant’s evidence was very generalised and compounded by loss of memory since the incidents and that she had added to or varied parts of the evidence given during the VARE.
During oral submissions, the applicant focused primarily on the inconsistencies in the complainant’s evidence in relation to the second incident and submitted that those inconsistencies meant that the jury must have had a doubt about whether that incident occurred.
The first inconsistency highlighted by the applicant in oral submissions concerned the circumstances in which the second incident ended. During the VARE, the complainant first stated that the second incident ended when her half-brother wanted to come into the study. Later in the VARE, she stated that at the end of the incident ‘mum was about to open the door’ because she was going to get the groceries and it was the complainant’s turn to go with her. The complainant said once more during the VARE that it was Ms Banks who came to the door. During the special hearing, the complainant first stated that the incident occurred after her half-brother had moved out of the house. She later stated that she was 100 per cent sure it had been her half-brother who came to the door and agreed that what she had said during the VARE about Ms Banks coming to the door was not true. She said that the police must have misheard her because she stated during the VARE that her half-brother had said ‘Mum wants you ‘cause you’re going shopping’.
The second inconsistency involved the time period in between the first and second incidents. During the VARE, the complainant stated that there had been a fortnight in between. However, during the special hearing, she agreed that there was about a year between the incidents by reference to, among other things, how old she was when she set up the Facebook account which she had been using in the study at the time of the second incident.
The third inconsistency related to the lock on the study door. During the VARE, the complainant said that the applicant locked the door to the study after he entered. During the trial, Ms Banks gave evidence that the study door could be locked from the inside with a key which was always in the door, and that there was a knob on the hallway side of the door that could be used to open it even if it was locked from the study side. During the special hearing, the complainant agreed that the door could not be locked from inside the study.
The fourth inconsistency related to the applicant’s literacy. During the special hearing, the complainant stated that the applicant could not read and write. However, during the VARE, the complainant stated ‘dad can’t read and write. … But that’s all a scam. … [H]e decides not [to] read and decides not to write’. Similarly, later in the special hearing, she stated that the applicant can read and write and that he is ‘making it up as an act that he can’t read and write’. At trial, Ms Banks gave evidence that the applicant cannot read or write.
In oral submissions, the applicant also noted that, in relation to the first incident, the complainant said during the VARE that she left the bedroom first, while during the special hearing she said that the applicant walked out before her.
In his written case, the applicant gave the following additional examples of inconsistency:
(a) In relation to the first incident, during the special hearing the complainant stated that it occurred on a weekday, late in the day and after she had been playing with her brothers in their room. Those facts were not stated in the VARE. The applicant also referred to the fact that the complainant could not say whether the first incident occurred during school holidays and that when asked whether she could remember what day of the week it was, she said: ‘I wasn’t a hundred per cent sure when I did the statement because I’m not very good with remembering that far back.’
(b) In relation to the second incident, the complainant stated during the special hearing that it had occurred in the middle of the year, on a weekday and around the middle of the afternoon. Those facts were not stated in the VARE. The complainant also stated during the special hearing that the applicant re-entered the room after the incident, which she did not say during the VARE.
(c) In relation to the third incident, during the special hearing, the complainant stated that she did not know what time of year it had occurred and she agreed that, during the VARE, she had stated that it had occurred months after the previous incident.
(d) In relation to the fourth incident, the complainant stated during the special hearing that she had tried to get someone to stay over with her that night, and that she had stayed until the Monday, but those statements were not made during the VARE. The complainant stated that her younger sister had walked out into the room just before the applicant spoke about the vibrator, but that was not said during the VARE. During the special hearing, the complainant stated that she thought someone else was up because a light was on but did not mention this during the VARE. During the special hearing, she said that the third incident finished when the applicant heard noises in the house, but during the VARE she stated that it ended because Lauren was walking down the hallway.
(e) In relation to the fifth incident, the complainant stated during the VARE that she did not know what time of year it had occurred, but during the special hearing she stated that it was a Wednesday. In relation to what happened when she returned to the applicant’s house after that incident, the complainant stated during her VARE that members of her family were sitting at the dining table but during the special hearing she said that they were in the lounge room. During the special hearing the complainant agreed that, when she stated during the VARE that she had forgotten some clothes at the applicant’s house, that was not true. The complainant gave evidence during the VARE that she and the applicant left the house separately, while during the special hearing she stated that she left with the applicant.
The applicant also outlined other aspects of the complainant’s evidence that he submitted were inherently damaging to her reliability and credibility. Those aspects included the following:
(a)The complainant and the applicant were left alone in a room for periods of half an hour during the middle of the day without being disturbed by any siblings. In relation to the second incident in particular, a pornographic video was played, clothes were removed and offending committed when ‘anyone could walk into the room’.
(b)The third and fourth incidents occurred in an open plan lounge room, involving the removal of clothes, offending on the couch and the applicant later leaving the complainant to attend to Lauren.
(c)The complainant continued to remain alone with the applicant when she could have avoided this, and had ongoing contact with him long after the incidents had ended. These facts were said to stretch credibility and to be ‘entirely inconsistent with the truth of the allegations’.
(d)The complainant was said to have attempted to explain away inconsistencies by adding new details or ‘embellishment’ and to have emphasised the implausibility of her account by suggesting that the police had misheard her during the VARE.
(e)There had been no timely complaint or disclosure by the complainant and the timing of the complaint when it was made corresponded with a time of conflict in the complainant’s relationship with her mother and siblings when she had ‘been caught lying, picking on her brother and sister and misbehaving’. The applicant submitted that the complainant had a motive to lie.
(f)The fact that the applicant did not make any admissions during the pre-text telephone conversation that the complainant had with the applicant on 20 February 2013.
The Crown submitted that this is not a case where the evidence ‘contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force’ or in other words, it is not open to conclude that ‘there is a significant possibility that an innocent person has been convicted’.[9] According to the Crown, any limitations in the evidence were fully explored before the jury and an examination of the record justifies a conclusion that it was open to the jury to convict the applicant on the relevant charges.
[9]See M v The Queen (1994) 181 CLR 487, 494.
The Crown also submitted that if the complainant were lying, the detail she provided in relation to the charged events is quite remarkable and unnecessary.
The Crown submitted that the nature and circumstances of the charges borne out by the complainant’s evidence were ‘hardly remarkable’ and that any inconsistencies were minor. The Crown also submitted that one could reasonably expect the complainant to have some difficulty recalling distressing events which had occurred many years earlier when she was very young.
According to the Crown, the matters upon which the applicant has relied were not particularly remarkable considered either in isolation or combination and, in any event, those matters had been put before the jury.
Decision in relation to ground 1
Ground 1 must be rejected. The inconsistencies and other features of the complainant’s evidence upon which the applicant has relied are incapable of establishing, either on their own or in combination, that the jury verdicts are unreasonable or cannot be supported having regard to the evidence. Those inconsistencies and other features are not unusual in the context of the complainant’s age at the time of the VARE and the special hearing (15 and 18 years, respectively), particularly since she was giving evidence about traumatic events which had occurred when she was aged between 11 and 14 and which involved a gross breach of trust by her father. The inconsistencies and other features were not so glaring as to have required the jury to reject the complainant’s evidence. Rather, they were quintessentially matters for the jury to consider in assessing the credibility of the complainant and the reliability of her evidence.
The inconsistencies and other features upon which the applicant has relied to attack the credibility and reliability of the complainant were pressed with some force by defence counsel at trial. Defence counsel suggested to the jury that the complainant was making up her evidence as she went along and that the jury ‘would have grave doubts about whether to believe anything [the complainant] says’. The inconsistencies and other features were also referred to by the judge in her charge. They would not have escaped the jury’s attention when assessing the complainant’s evidence. As the jury acquitted the applicant on charge 8 and failed to reach agreement on charges 5 and 7, it can be confidently inferred that the jury focused on the evidence adduced in respect of each charge and rejected the complainant’s evidence in respect of some charges while accepting her evidence in relation to other charges. The jury was entitled to conclude that, in relation to the charges for which a guilty verdict was returned, the complainant gave truthful evidence about the applicant’s offending even if some peripheral details were confusing, vague or contradictory.
We reject the applicant’s submission that the complainant’s account of the applicant’s offending was utterly implausible and improbable. On the whole of the complainant’s evidence, the jury was entitled to conclude that, despite some confusion and contradiction on some aspects, she was an honest witness who was doing her best to accurately describe what had occurred. The impression conveyed by the complainant’s evidence as a whole is that she was reluctant to discuss the charged events and that some of the details of the offending had to be extracted from her gradually through a series of questions. On the other hand, she mentioned some of the surrounding circumstances in a forthright and matter of fact manner which the jury could have found very persuasive.
The jury was also entitled to accept the complainant’s evidence about the applicant’s offending even though, at first blush, it may have appeared incredible that some of the offending occurred in parts of the house which were readily accessible to other family members who were home at the time of the offending. However, it has been the experience of this Court 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. As the Crown submitted, it is not uncommon for this type of offending to have some ‘brazen’ features.
In the present case, the fact that the complainant’s account was that the applicant had engaged in offending in circumstances where there was an obvious risk of discovery did not mean that that account was untruthful. The jury was entitled to accept the complainant’s account notwithstanding that no member of the applicant’s family witnessed any of the offending despite the inherent risk that they might do so. The jury was also entitled to conclude that the duration of the offending was less than the complainant stated because the traumatic nature of the conduct may have caused her to believe that it lasted longer than it did.
Similarly, the applicant’s submission that the complainant’s account ‘stretched credibility’ because she continued to remain alone with the applicant following earlier offending ignores the fact that the complainant was young and vulnerable and the applicant was an authority figure who had the opportunity to abuse her trust. The complainant gave evidence that, following the initial offending, there were occasions during which she remained alone with the applicant because she did not think that he would offend again and also because she was scared that if she got up to leave, the applicant would ‘drag [her] back’.
Some of the inconsistencies in the complainant’s evidence upon which the applicant relied were not true inconsistencies but involved the addition of further details at the special hearing. It is not unusual for a witness to provide answers which contain more information than was provided in response to a similar question on a prior occasion, particularly in the context of detailed cross examination. The additional details may be forthcoming due to the nature of the questions or because the witness appreciates for the first time that the details may be relevant. In such a situation, the jury is entitled to accept both the initial and the subsequent answers as truthful.
It is not necessary for us to specifically discuss each of the inconsistencies in the complainant’s evidence upon which the applicant has relied. The observations we have already made are apposite in relation to all of them. However, we will consider the inconsistencies upon which the applicant placed particular reliance during his oral submissions.
We accept that the complainant gave inconsistent evidence about whether the second incident concluded when her half-brother or mother came to the study door. The complainant changed her account on a number of occasions but was ultimately firm in her recollection that it was her half-brother who came to the door. Her statement that the police must have misheard her during the VARE was unconvincing. However, the jury was entitled to conclude that the offending in relation to the second incident occurred as described by the complainant notwithstanding her confusion about who came to the door and notwithstanding her unpersuasive attempts to explain away the inconsistency.
We also accept that there is a significant discrepancy in the complainant’s evidence regarding the temporal gap between the first and second incidents. However, the jury was entitled to conclude that this discrepancy did not undermine the veracity of the complainant’s account of the second incident. This is because children — and, for that matter, adults — often make errors about the timing of past events, particularly when they are attempting to identify the timing by reference to the occurrence of associated events. The complainant frankly admitted that she was ‘not very good with remembering that far back’.[10]
[10]See [41(a)] above.
We do not accept that the complainant gave either inconsistent or unreliable evidence about the lock on the study door. The substance of the complainant’s evidence was that while there was a lock on the study side, that lock could not prevent people entering the study from the hallway. This evidence was accurate and consistent with the evidence of Ms Banks.
Likewise, we do not accept that the complainant’s evidence about the applicant’s literacy was either inconsistent or unreliable. The substance of her evidence was that the applicant exaggerated his inability to read and write. Ms Banks’ evidence was that the applicant cannot read or write. However, there was no dispute that the applicant had a driver’s licence and was able to understand road signs. Accordingly, it was not the case that the applicant was completely illiterate. Furthermore, the applicant’s literacy arose in the context of the complainant’s evidence that the applicant operated a computer to play a pornographic film. The jury was entitled to accept the complainant’s evidence that the applicant learnt how to play a DVD on the computer after he was physically shown how to do so notwithstanding that he had some difficulty reading and writing.
The complainant’s evidence about the order in which she and the applicant left her bedroom at the conclusion of the first incident was not entirely clear. Accepting, for present purposes, that her evidence was inconsistent, the jury was entitled to treat this inconsistency as an inconsequential detail which had no bearing on the veracity of the complainant’s evidence about the applicant’s conduct during the first incident.
There is no substance to the applicant’s submissions about the timing of the complainant’s disclosure of his offending to Ms Banks and the police. Defence counsel submitted to the jury that the complainant had delayed in making the complaint and that she had a motive to lie. The judge also referred to these matters in her charge and directed the jury about the possible prejudice to the applicant arising from the delay. The jury would have taken these matters into account in assessing the complainant’s evidence. Likewise, the jury would have taken into account the fact that the applicant did not make any admissions during the pre-text telephone conversation between the applicant and the complainant on 20 February 2013.
For these reasons we would not grant leave on ground 1.
Ground 2: Admissibility of ‘virginity’ evidence
Ground 2 of the applicant’s proposed grounds of appeal was as follows:
The learned trial judge erred in law in ruling admissible the evidence of ‘virginity’ contained in Q and A [299] and [344] of the VARE.
As we have previously mentioned, prior to trial, the applicant made an application seeking that two statements that the complainant had made during the VARE about her loss of virginity be excluded from the evidence to be adduced at trial. The evidence was given in the context of charge 5, in relation to which the jury was unable to reach a verdict.
The applicant sought the removal of the italicised words (‘impugned statements’) in the complainant’s answers to the following questions during the VARE:
Q 299 Yep.
A - - - and I was leaning against the edge looking at — watching the movie when he came up behind me and turned my — the back of my knees to the edge of the couch and pushed me onto the couch and started ripping my clothes off me and then when he was finished ripping his — my clothes off me, he took parts of his clothes off and put his parts inside of me and that’s when I lost my virginity.
…
Q 344 Yep.
A He wouldn’t change any of it. He just kept going and once he had got — made me lose my virginity, he said to me after he’d finished, ‘It was way more easier after I’d popped your cherry’.
The application to exclude the impugned statements was made on two bases, only the second of which is presently relevant. That basis was that the evidence was not relevant to a fact in issue and that, even if it were relevant, its prejudicial effect far outweighed its probative value such that it ought to be excluded pursuant to s 137 of the Evidence Act 2008.
The application was dealt with as a pre-trial issue by a judge other than the trial judge. The judge ruled that the evidence was admissible for the following reasons:
The fact that is in issue is whether the accused had sexual intercourse with his daughter, the complainant. The ‘lost my virginity’ statements by the complainant are part of the fact in issue. It reinforces the fact that there was sexual intercourse. To excise that statement from the evidence of the complainant would be embarking on a level of unreality in a sexual offence case where the mechanical act of sexual intercourse is admissible and the context of the mechanical act is removed. This case is only about whether it happened, so the full context of the offending is probative evidence in this case.
I accept there is a perception of prejudice in the fact that the complainant is saying that she lost her virginity. However, there is prejudice, even repugnance, in the whole idea of a father committing incest. The prejudice complained of here would not overcome the probative value of the complainant giving evidence in the full context of the alleged offending. I rule that, in respect of those two parts that relate to ‘I lost my virginity’ type evidence, can be led in the VARE as it is relevant and it is context evidence that gives a consistency to the narrative of what the complainant alleges her father, the accused man, did to her. I do not accept the prejudicial effect of this evidence outweighs the probative value. In short, those questions relating to [299] and [344], and that part of the VARE will remain in evidence.
In his written case, the applicant submitted that in circumstances where the issue in dispute was whether the act of sexual intercourse had occurred, the question of whether or not the complainant lost her virginity to the applicant was not relevant. The applicant also submitted that the evidence was not context evidence and only added ‘colour’ to the allegation. According to the applicant, relevant context evidence would be restricted to what happened between the complainant and the applicant during the occurrence of the charged event and in the lead-up to that event.
In his written case, the applicant also submitted that, even if the evidence was relevant and admissible, its prejudicial effect was high and far outweighed any probative value it had, so that it should have been excluded pursuant to s 137 of the Evidence Act 2008. The applicant accepted that the nature of the charged act was of itself ‘repugnant and prejudicial’ but submitted that that prejudice was not unfair given it was the act itself. The evidence as to the loss of virginity was said to be unfairly prejudicial because it had the effect of making the charged act ‘even more repugnant’ and ‘highly emotive to any reasonable person (including a juror)’.
On the appeal, while not formally abandoning it, counsel for the applicant did not press ground 2. In our opinion, counsel was right not to press this ground.
The applicant’s evidence that she lost her virginity to the applicant was clearly relevant to the key issue of whether sexual intercourse had taken place during the third incident which was the subject of charge 5. It was part of the narrative in respect of that incident and provided context for the physical acts that were said to have taken place during that incident. It also provided context for the applicant’s statements during the incident, such as his statement that ‘it’s better off that I have done it than some stranger do it’. The evidence was highly probative.
On no basis could it be said that the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant within the meaning of s 137 of the Evidence Act 2008. The evidence of the complainant’s two statements that she lost her virginity to the applicant expressly articulated what other evidence, which was not the subject of any challenge, would have clearly conveyed to the jury. That evidence included the complainant’s age, her evidence that the applicant said to her ‘It was way more easier after I’d popped your cherry’ and her evidence that she had blood ‘coming from [her] parts’ even though she had not previously had a period. As the judge correctly stated in his ruling, the evidence of the applicant committing incest with his then 13 year old daughter would have been regarded as repugnant by the jury. The evidence of loss of virginity would not have surprised the jury in the context of the other evidence and would not have added any prejudice which was not outweighed by the probative value of the evidence.
We also note that the evidence regarding loss of virginity related to charge 5 in respect of which the jury was unable to reach a verdict. The applicant did not suggest that the reception of the evidence impermissibly tainted evidence led in respect of other charges. The trial judge correctly directed the jury to base its verdict for each charge only on the evidence adduced in relation to that charge. She also correctly warned the jury to approach the fact finding task in a dispassionate manner and not be swayed by any prejudice flowing from the fact that the charges involved sexual allegations against children.
It follows that we would refuse leave on ground 2.