Woods (a pseudonym) v The Queen
[2021] VSCA 105
•27 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0248
| ROBERT WOODS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and of family members of the applicant.
---
| JUDGES: | KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 April 2021 |
| DATE OF JUDGMENT: | 27 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 105 |
| JUDGMENT APPEALED FROM: | [2020] VCC 547 (Judge Lyon) |
---
CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of incest –Whether prosecutor’s address to jury reversed onus of proof – Whether evidence of deterioration in complainant’s behaviour post-abuse was irrelevant and unfairly prejudicial – Whether trial judge should have directed jury that commission by the applicant of the charged act was required to be voluntary, conscious, deliberate and intentional – Expert evidence adduced as to counter-intuitive behaviour of abused children – Whether expert evidence regarding conduct of complainant admissible – Whether miscarriage of justice – Whether jury verdict unsafe and unsatisfactory – Leave to appeal granted – Appeal dismissed – R v AJS (2006) 12 VR 563, MG v The Queen (2010) 29 VR 305 distinguished.
CRIMINAL LAW – Appeal – Procedure – Application for extension of time to file application for leave to appeal against conviction – Two grounds of appeal reasonably arguable – Extension of time granted.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M FitzGerald | Doogue + George Defence Lawyers |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
NIALL JA:
The applicant was convicted by the jury empanelled on his trial of one charge of incest. After a plea that was presented on his behalf, on 1 May 2020, the applicant was sentenced to 7 years’ imprisonment with a non-parole period of 5 years.
The applicant seeks leave to appeal the conviction, and in order to do so, he seeks an extension of time within which to make that application.
The proposed application for leave to appeal contained seven grounds. At the commencement of oral argument, counsel for the applicant abandoned the first ground. The remaining six grounds are as follows:
2.The submission by the prosecutor in the final address that the jury was not provided with any material on the issue of erectile dysfunction ‘other than what was in the record of interview’ has occasioned a substantial miscarriage of justice because it had a tendency to reverse the onus of proof.
3.A substantial miscarriage of justice occurred because of the adducing of irrelevant and unfairly prejudicial evidence.
PARTICULARS
[Alice’s] evidence that the complainant’s behaviour had deteriorated in the two year period after the allegations.
4.A substantial miscarriage of justice occurred because of the failure of the trial judge to provide the jury with the following directions of law:
(A)That the act of the applicant of inserting his penis into the complainant’s vagina had to be a conscious, voluntary and deliberate act (general intent);
(B)That the intoxication of the applicant was relevant to determine whether or not he had formed the intention to commit the charged act (specific intent).
5.A substantial miscarriage of justice occurred because of the admission of specific evidence explaining the counter-intuitive behaviour of the complainant when such expert evidence is only admissible to explain generally the counter-intuitive behaviour of complainants in sexual offence cases.
6.By virtue of a combination of errors a substantial miscarriage of justice has occurred and the conviction of the applicant should be set aside and a retrial ordered.
7. The verdict is unsafe and unsatisfactory.
The application for an extension of time
The application for leave to appeal was not filed until 30 November 2020, more than six months after the time prescribed by s 279 of the Criminal Procedure Act 2009. Accordingly, it is necessary for the applicant to apply for an extension of time within which to file the notice of application for leave to appeal.
The principles that are relevant to such an application have been outlined in a number of decisions of this Court. For the purpose of the present application, they were sufficiently summarised in Barber v The Queen[2] in the following terms:
The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court. The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time. In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it. In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material. Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the extension notwithstanding such delay.[3]
[2][2018] VSCA 232.
[3]Ibid [3] (Kyrou and Kaye JJA) (citations omitted). See also Kentwell v The Queen (2014) 252 CLR 601, 613–14 [30]–[33]; [2014] HCA 37 (French CJ, Hayne, Bell and Keane JJ); Jopar v The Queen (2013) 44 VR 695, 707 [59]; [2013] VSCA 83 (Priest JA); Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
The application for an extension of time is supported by an affidavit sworn by the applicant’s instructing solicitor. It appears from that affidavit that the applicant’s present solicitor was not instructed to act on his behalf until 25 September 2019, some three months after the expiration of the time limit prescribed by s 279 of the Criminal Procedure Act. No explanation is given for that delay. In his affidavit, the applicant’s solicitor has explained, in some detail, the steps that were taken to obtain the relevant materials that were necessary to advise the applicant, and to prepare proposed grounds of appeal. While some of those steps may not have been necessary before an application was made for leave to appeal, nevertheless we are satisfied that a substantial part of the period of delay, between the time when the applicant’s solicitor was first instructed and the date of the filing of the application for leave to appeal, has been sufficiently explained.
There has been a substantial period of delay in the filing of the application for leave to appeal. The applicant has failed to provide any explanation for the first period of that delay, constituting some three months. In those circumstances, it would not be appropriate to grant an extension of time, unless we were satisfied that the proposed grounds of appeal have sufficient prospects of success so that it would be unjust to decline to hear the application for leave to appeal.
For the reasons that follow, we consider that grounds 3 and 5 of the application are sufficiently arguable to warrant the grant of leave to appeal, although, having considered those grounds, we would not uphold the appeal. Accordingly, it is appropriate that we should allow the application for an extension of time, notwithstanding that, on giving the proposed grounds full consideration, the appeal must be dismissed.
Circumstances of offending
The offence, for which the applicant was convicted, was alleged to have been committed between 1 February 2014 and 17 December 2016. The complainant is the applicant’s daughter. She was born in December 2002. The applicant and his wife Alice had three children. The eldest, James, was born in 2000, and the youngest, Coby, was born in 2005. Alice also had an elder daughter Ella by a previous relationship.
In 2008 or 2009, the applicant and Alice separated. After their separation, Alice moved to Darwin with the four children. After about eight months, the children returned to Victoria, and for two years they lived with Alice’s mother in Geelong. In about 2012 or 2013, the four children then moved to live with the applicant in Traralgon. Subsequently, Ella moved out of the home to live independently. In about 2014, James also left the home, and moved to live with Alice who was then residing in Adelaide. The offence, for which the applicant was convicted, was alleged to have taken place between that date and December 2016 when the complainant was between eleven and thirteen years of age.
The complainant first made a complaint about the offending in November 2018, while she was attending a weekend workshop at Rawson Village, Rawson. During the camp, she told the person who was in charge of the camp, Ms Sharon Schofield, that about two years previously, her father had been abusing her and that he had stayed in her bed a few times. In December 2018, Ms Schofield contacted the police. As a result, the complainant made statements by VARE on 20 December 2108 and 3 April 2019. In the first VARE, the complainant gave evidence concerning a night when she woke up to find that her father, the applicant, was raping her. In both VAREs, the complainant also gave evidence that after James had left the house, the applicant’s behaviour towards her had become sexualised. She said that when the applicant hugged her he would touch her on the buttocks; that he started coming into her bed at night; that he would undress her; and that in bed he would feel her breasts and stomach.
When interviewed by the police on 3 January 2019, the applicant stated that there were occasions when he had woken up in the complainant’s bed. He denied that he had sexually penetrated her, and he said that he was incapable of doing so, because he suffered from erectile dysfunction as a result of diabetes.
Summary of evidence
In the first VARE on 20 December 2018, the complainant stated that when she was younger, she was sexually assaulted by the applicant, and that it would only happen when he was drunk at night. She said that it occurred shortly after her brother James had moved out of the home. She also said that the conduct ceased when she herself moved out of the home because of the applicant’s drinking and because of the sexual assaults.
In the first VARE, the complainant stated that on occasion she would wake up to find the applicant in her bed. On one such occasion, she woke up and realised that something ‘wasn’t right’. She realised that the applicant was raping her. She said that the applicant was behind her, and that she was curled up to a pillow facing the wall. She was not sure what position her father was then in.
In the course of the VARE, the complainant experienced some difficulty in putting into words what had occurred. At the suggestion of the interviewer, she wrote on a piece of paper the following:
So what occurred was I woke up to find my dad raping me. So he was touching my breasts and he had his penis inside my vagina. It wasn’t fun. I felt gross and useless.
The complainant said that she was on her side and the applicant was behind her. After the applicant had had sex with her, he got up and left the bed. She said that when the applicant was raping her, she felt useless and powerless. In the first VARE, the complainant also stated that on a number of occasions when the applicant hugged her, he would slide his hand down to her buttocks.
In the second VARE on 3 April 2019, the complainant stated that during that time the applicant would drink to the point at which he was unable to do anything. She said that she would wake to find him in her bed and realise why she was feeling different. She said that every time she went to bed, the applicant would climb in. He would move his arm around her stomach and then he would put his other hand ‘underneath’. She said that on some nights the applicant would completely undress her, and on other nights partly do so. She said that the applicant would sometimes be wearing a dressing gown and sometimes he would be wearing nothing.
The complainant said that when the applicant got into her bed, he would pull her in close. She would close her eyes hoping that he would go away, but he would not. She said on most occasions the applicant did not wear any clothes, and he rarely wore underwear. The complainant further said that she could remember four or five nights when the applicant would get into bed with her, but nearly every morning she would feel ‘gross’ as if he had done so. She remembered the last occasion, when she woke up to find the applicant with his hands over her chest and stomach. She said:
At that point he was already raping me at that time when I woke up so kinda just woke up and was laying there with him doing it.
She said that the applicant had his penis in her vagina. She felt the applicant’s chest against her back and his arms wrapped around her.
The complainant was cross-examined in a special hearing. In the course of the cross-examination, she said that the applicant was never in her bed when she got into it. She said that the applicant would come into her bed after she was in it.
In cross-examination, she said that she was quite sure that on the occasion, which she wrote down her answer in the course of the VARE, the applicant put his penis in her vagina. She also said that she first revealed what the applicant had done to her after attending a session on sexual assault at the Rawson Village Camp in November 2018. She said that after the session she was sitting by herself and crying. The team leader, Ms Tiffany Woodward, started asking her why she was crying and she told Ms Woodward that she had been sexually assaulted. She said that she then spoke to someone called Sharon (Ms Schofield).
In cross-examination, the complainant agreed that after she had moved out of her father’s home, she continued spending weekends with him in his home. She said that during the days she was perfectly fine, but at nights she would be a bit scared. She agreed that when she would spend the weekends with her father, they would hug each other. She also agreed that she had written a note to her father stating:
I wouldn’t want anyone else to be my dad. I don’t know what I would do without you. Love you till the end of time and even longer. Love lots, [name of complainant].
The complainant also agreed that after her father became engaged to his partner Natalie, she wanted to be a bridesmaid at the wedding. She also agreed that she had invited the applicant and Natalie to come and see a play in which she was performing at school.
The complainant’s mother, Alice, gave evidence that she separated from the applicant at the end of 2008. In the following year, she moved to Darwin, and her four children came with her for approximately eight months. After Alice became unwell, the children returned to Victoria to live with her mother in Geelong for a couple of years. They then moved in with the applicant in Traralgon in about 2012 or 2013. At that time, her eldest child Ella was about 14 years of age, and the complainant was about nine years old. About two years later, Ella moved out of the house, and sometime after that James went to live with Alice, who was then in Adelaide. The complainant and Coby remained living with the applicant in Traralgon. The complainant subsequently returned to live with Alice in about April 2016.
Alice stated that, while the complainant was living with the applicant, she remained in regular telephone contact with the complainant. On about three occasions, in the course of such conversations, the complainant was quite upset and said that the applicant had been drinking and that he had fallen asleep in her bed, and that she did not like it. The complainant told Alice that the applicant drank a lot each day and he was regularly drunk. She said that the applicant would become so intoxicated that he could not be woken up. The complainant told Alice that this usually occurred just after bedtime. When the complainant spoke to Alice, she would be upset about it and say that she felt really uncomfortable. Alice explained that the applicant’s bedroom was at the opposite end of the house to the bedrooms of the complainant and Coby.
Alice gave further evidence that after the complainant returned to live with her, she attended special camps conducted by Youth Insearch for children with difficulties. On 6 December 2018, Alice received a telephone call from the complainant’s camp counsellor, who told her that the complainant had said that she had been assaulted by her father. When the complainant returned home, Alice and James spoke to her in her bedroom. Alice told the complainant that the camp counsellor Sharon had spoken to her, and that the complainant did not have to tell her about it if she did not want to. The complainant responded, ‘I want to tell you’. The complainant then said to Alice that ‘Dad had touched her in ways that he shouldn’t have and she — she really was quite angry’. Alice said that that occurred when the applicant came into her bed and fell asleep.
As a result, Alice and the complainant attended CASA (Centre Against Sexual Assault) who linked the complainant with a service at which she had counselling each fortnight. On 17 December, the complainant and Alice attended Sale Police Station where they spoke to a member of the Sex Offences and Child Abuse Investigation Team (SOCIT). On 20 December, the complainant participated in a recorded VARE interview with police at that station. On 21 December 2018, Alice conducted a pre-text telephone call with the applicant, a recording which was played to the jury. In the course of the conversation, Alice told the applicant that the complainant had said that there had been ‘some inappropriate behaviour or touching of her’ to which the applicant responded ‘Jesus’ and ‘No, I haven’t’.
Alice gave evidence that after the complainant had moved in to live with her, and until the end of 2018, the complainant’s behaviour was problematic. Her moods would change quite quickly from being happy to being dark. On those occasions, she would not talk to anyone, and she engaged in self-harm. The complainant was struggling at school and she had trouble with her teachers and people in authority. That evidence is the subject of ground 3 of the application for leave to appeal.
In cross-examination, Alice stated that after the complainant moved in to live with her in April 2016, both the complainant and James, on each alternate weekend, would stay at the applicant’s house. Alice stated that the complainant was quite enthusiastic about those visits. She enjoyed going back to her father’s house, because her cousins lived nearby and they were of the same age. The complainant continued to have weekend visits to the applicant’s house, every second weekend, until December 2018. During that time, Alice considered that the complainant had a good relationship with the applicant, but that she ‘displayed difficult behaviours with him like she did with me’.
Alice further said that in the telephone conversations that she had with the complainant while Alice was living in Darwin, the complainant would say that the applicant got into her bed and fell asleep. During that period, the complainant did not suggest that there was anything sexual in the conduct of the applicant on those occasions. When Alice spoke to the complainant in late 2018 after being telephoned by the camp counsellor at the Youth Insearch camp, the complainant did not give her any detail as to what the applicant had done, she just said that her father had touched her. When Alice spoke to the police on the following day, she said to the police that the complainant still wanted to have contact with the applicant and that she was not scared or worried about being with him. Alice told the police that the complainant still loved her father. Alice also confirmed that subsequently the complainant left a written note for her, in which the complainant had described the sexual assault as involving the applicant being on top of her.
Dr Teresa Flower, a child psychiatrist, gave expert evidence concerning counter-intuitive behaviour of child complainants in sexual abuse cases. Dr Flower stated that she had worked with a number of young people who had been sexually abused. She explained the reasons why a child might continue to have contact with a parent after the abuse to which the parent subjected the child had concluded. She explained that in those circumstances, the child learns to accommodate the abuse within their life and to separate out the experience of abuse from the rest of his or her life. In particular, if the child does not have a very secure relationship with the other parent, the child might choose to continue to have a relationship with a parent who has offended against him or her because that relationship has meaning. In such a case, the child might have other quite positive experiences with the offending parent.
Having given that evidence, in general form, Dr Flower then gave evidence about the contents of the note written by the complainant, which was tendered in the course of the cross-examination of the complainant, in which the complainant had expressed her love for the applicant ‘… to the end of time and even longer’. That evidence, which was given without objection, is the subject of ground 5 of the application for leave to appeal.
When asked about her ‘impressions’ concerning the note, Dr Flower said that she thought it spoke to the relationship between the complainant and the applicant that existed ‘outside of the abuse that goes on’. Dr Flower stated that, as she had explained, children who are abused on a regular basis learn to accommodate the abuse into their lives, so that in the present case, the complainant might have become accustomed to accommodating the abuse and to some extent ignoring it. Dr Flower also stated:
The other thing that occurs to me is that it may be a very idealised view of the relationship. So this may be the child expressing the type of relationship that she wished she had with her father, that it wasn’t as complicated as it is because of the abuse.
In answer to a question concerning the specific wording of the note, in which the complainant expressed her love for her father, Dr Flower said that most children want to have positive relationships with their parents, so that children, who are abused, may not want to view themselves as being different from their peers who have positive relationships with their parents. She said that if the child has a very difficult complicated relationship with the other parent, that may leave the child to cling onto the relationship with the parent who is abusing her despite the abuse. In such a case, the child might favour ‘the good things in the relationship’ with the abusing parent over the other difficulties in the relationship with the other parent.
In cross-examination, Dr Flower stated that she had had no direct contact with the complainant. She agreed that there is a spectrum of possible behaviours that may be exhibited in the case of children who have been sexually abused. When asked whether the complainant’s conduct, in continuing to spend each second weekend overnight with her father, might be unexpected behaviour by a child who had been abused, Dr Flower said that it is necessary to understand the individual child’s circumstances and the relationships the child has with her immediate family. Dr Flower stated that while the conduct of the complainant, in continuing to visit her father, might seem unusual, many of the decisions that children make in adolescence may seem unusual from an adult perspective, but children have their own internal way of justifying such conduct.
James Woods gave evidence that in 2012 he and his three siblings had moved in to live with the applicant in Traralgon. He said that each of the children’s rooms were close to each other, but that the applicant’s bedroom was at the opposite end of the house, which was quite a distance away. Initially, the relationship with the applicant was quite good. However, it deteriorated because of the applicant’s constant drinking. Towards the end of each evening he would be very drunk, and at times he would pass out in other people’s beds. On those occasions, he would come in to say goodnight, and would end up passing out on the bed. The applicant fell asleep once or twice in James’s bed, but he mostly did it in the complainant’s bed because she had a queen size bed. On those occasions, the applicant would just be ‘splayed across’ the bed as if he had just fallen down and passed out face down. On those occasions the applicant would be on top of the bed covers. He was fully clothed. James moved out of the house in 2014, after he had been fighting with the applicant.
In cross-examination, James stated that the applicant had engaged in very heavy drinking. On about five occasions, he had found the applicant on the complainant’s bed. On each occasion, he was fully dressed and lying on top of the bed clothes, as if he had collapsed onto the bed. James never saw the applicant behaving inappropriately towards the complainant.
Ms Sharon Schofield gave evidence that she was a State coordinator for weekend workshops conducted by Youth Insearch for young people who have problems. Those workshops were conducted at Rawson Village, Rawson. In February 2018, the complainant was referred to the program by her school. On the weekend commencing 23 November 2018, the complainant attended the program at Rawson Village. Ms Schofield was the team leader.
Ms Schofield gave evidence that during that weekend, a social worker, Tiffany Woodward, asked her to speak to the complainant concerning something that the complainant had said to Ms Woodward. When Ms Schofield spoke to the complainant, she told Ms Schofield that until her grandfather had died some two years previously, the applicant had abused her, and that after that she then went back and lived with her mother. The complainant told Ms Schofield that she had not told anyone else about the abuse, but she had said to her mother that her father had slept in bed with her. She said to Ms Schofield that the applicant was drunk, that he never knew what he was doing, and that he had not abused her for two years. She asked Ms Schofield not to do anything because it would split her family.
Subsequently, Ms Schofield attended the complainant’s school and spoke to her again to clarify that the conduct that she spoke about was in fact sexual abuse. Ms Schofield kept notes for conversations with the complainant, and those notes were tendered in evidence.
In cross-examination, Ms Schofield stated that when the complainant was referred to Youth Insearch, she was struggling with family relationships and she had been bullied at school. Ms Schofield stated that the occasion, on which she had spoken to the complainant about the abuse, was immediately after a session attended by the complainant relating to sexual assault. When the complainant spoke to her, she said that her father had been abusing her, but she did not use the expression ‘sexual abuse’. The complainant first used that expression when Ms Schofield spoke to her at her school.
Ms Tiffany Woodward was a volunteer worker at Youth Insearch. She gave evidence that at the Rawson Village camp in November 2018, the complainant approached her directly after the complainant had attended a session concerning sexual assault. The complainant was visibly distressed. When questioned by Ms Woodward, the complainant said that her father ‘used to do stuff to me’. The conversation with the complainant was quite disjointed because she was so upset. The complainant said that the abuse had commenced when her grandfather had died, some eight years previously. The complainant said, ‘He used to do stuff to me, it started about eight years ago’. Ms Woodward asked the complainant that, when she said ‘do stuff,’ did she mean that it was sexual conduct, to which the complainant did not give a clear answer but just looked at Ms Woodward. The complainant told Ms Woodward that she had told her mother that she used to sleep in the same bed as her father, and her mother had expressed concern about that. Ms Woodward stated that as a result of that conversation she spoke to Ms Schofield.
In cross-examination, Ms Woodward confirmed that the complainant had told her that the abuse had commenced when she was eight years of age. The complainant said that the abuse had ceased when her father had got a new girlfriend. Ms Woodward further agreed that the first mention by the complainant of sexual abuse was when she asked the complainant whether the conduct of the applicant was sexual.
The final witness for the prosecution was Detective Sergeant Jason Benbow, the informant in the prosecution. On 3 January 2019, Sergeant Benbow conducted a recorded interview with the applicant. The record of interview was played to the jury and tendered as an exhibit.
During the interview, the applicant said that he and Alice had broken up in about June 2009. In about 2011, all the children came to live with him in Traralgon. James moved out of his home about one or two years before the complainant did. The applicant said that when the complainant moved out, his relationship with her was good. He said that he never had any problems with any of the children. The applicant said that while the children were living with him, he would drink between eight and one dozen bottles of beer each evening after coming home from work.
Sergeant Benbow then reminded the applicant that he had spoken to him earlier in the day in relation to an allegation concerning the complainant. The applicant responded that he understood the allegation to be one of rape, and he said he could prove that he could not have committed a rape, because he was impotent due to his diabetes. The applicant said ‘I can’t get a hard-on’. He said that that condition had commenced about five or six years previously. He had noticed the problem when he was dating a woman called Diane at that time. When asked if he had sought medical help in relation to the condition, the applicant said that when he commenced going out with his current girlfriend Natalie, twenty months previously, he saw a Dr Sarwar of Hillcrest Medical Centre. Dr Sarwar had prescribed Viagra medication, but that had limited success.
The applicant stated that when he drank alcohol in the night time he lost his memory. When Sergeant Benbow put to him the allegation that he had inappropriately placed his hand on the complainant’s buttocks while giving her a hug, the applicant said ‘… I can’t remember doing nothing like that’. In response to the allegation that when the complainant was asleep in her bed, the applicant would go into her room and get into bed with her, the applicant stated:
I can’t deny that because I woke up in the bed once. I remember waking up in the bed and going ‘What the fuck am I doing here?’
He said that on such an occasion he could not remember whether he had clothes on, but if he did so it would just be his ‘jocks’. When asked on how many occasions it had occurred, he said he would be guessing, but perhaps it occurred on two or three times. He said, ‘I wouldn’t do such a thing sober’.
When it was put to the applicant that on an occasion the complainant woke up with the applicant’s penis in her vagina, the applicant responded that it could not have happened, because ‘… as I said, I can’t … nothing was working, it couldn’t have been — couldn’t have done it’.
In response to the allegation that the applicant’s conduct had occurred until the complainant moved out, the applicant responded, ‘No I don’t believe that, but I can’t deny it’. In response to the allegation that the complainant would wake up with the applicant in her bed touching her all over her body, the applicant responded:
I — as I said, I can’t remember at all so I can’t call her a liar.
The applicant said that as time went by his difficulty with having an erection got worse until he was incapable of achieving one. When asked whether it was possible that he could have done something inappropriate with the complainant while he was in bed, he said:
Possibly, yeah, I can’t deny that, you know. But I — I’m confident there would be no penetration.
The applicant called two witnesses in his defence. The first witness was Natalie Woods, the applicant’s present wife.
Ms Woods said that she had known the applicant as a friend for over twenty five years, but they had become romantically involved since May 2017. She said that for the period of one and a half years before December 2018, the complainant had visited the applicant every second weekend. To her perception, the complainant and the applicant had a ‘great’ relationship. The complainant was always affectionate to the applicant, and she would give the applicant a hug and say, ‘I love you Dad’. She had never seen the applicant behave inappropriately to the complainant.
The applicant’s sister, Victoria Hayward, gave evidence that after the applicant was awarded custody of the four children in January 2012, she looked after the children before and after school so that the applicant could work. She gave evidence that the relationship between the applicant and the complainant seemed to be entirely normal and appropriate, and she did not ever see the applicant behaving inappropriately towards the complainant.
Ground 2 — Submissions
Ground 2 is directed to submissions made by the prosecutor, in final address, concerning the claim made by the applicant, in the record of interview, that he was incapable of committing the alleged rape because he was impotent, and that he could prove that that was the case.
Having referred to the relevant parts of the interview, the prosecutor stated:
So look at the record of interview, and look at what he’s saying. Time and again we come with that. ‘Yeah, it’s a possibility that something happened, not the rape’. ‘Why not the rape?’ ‘Because I was impotent’. All right, he can prove that.
We have no evidence in support or denial or otherwise of that before you at the moment from a doctor. There’s nothing there to base your decision on in respect to the impotence from a doctor, or the level of impotence at what particular time.
The prosecutor pointed out that the applicant first spoke to a doctor about his condition some twenty months before the interview that was conducted in January 2019. Having referred to the passage in the interview, in which the applicant said that, as time went on, his condition had ‘got worse and worse’, the prosecutor said to the jury:
That’s the most that you’ve got to be able to ascertain what he says is the reason why he couldn’t have done what he says he — been said that he’s done; why he couldn’t have penetrated [the complainant] … by placing his penis specifically in [the complainant’s] vagina. That’s what you’ve got there. ‘It got worse and worse’.
The prosecutor submitted that the jury could not make anything of that assertion by the applicant, because there was no evidence as to where on the ‘scale’ the applicant’s condition was at the time of the alleged offence. The prosecutor then said to the jury:
You have no way of being able to determine that. And you’re not provided with any, other than what is in the record of interview.
In support of ground 2, counsel for the applicant submitted that those arguments, addressed by the prosecutor to the jury, had the effect of impermissibly reversing the onus of proof. Counsel particularly relied on the comment by the prosecutor ‘All right he can prove that’, followed by the prosecutor’s assertion that there was no evidence from a doctor in support or denial of the applicant’s claim to be impotent. Counsel submitted that those arguments suggested that the jury should have been provided with additional evidence to support the claim of erectile dysfunction, and that it was necessary for the jury to have medical evidence in order to accept what the applicant had said in his interview. Thus, it was submitted, the arguments made by the prosecutor created the risk that the jury would not be inclined to accept what the applicant had said in the interview, unless it was independently corroborated in some way.
Counsel for the applicant further submitted that the fact that the issue of erectile dysfunction was then relied on by counsel for the applicant, in his final address, only highlighted the issue. It was submitted that the judge did not remedy the issue by giving appropriate directions to the jury, to the effect that the prosecutor was wrong to suggest that the applicant had a burden to prove that he was impotent at the time of the alleged offence.
In response, counsel for the respondent submitted that the argument by the prosecutor to the jury did not have the effect of impermissibly reversing the onus of proof. Further, it was submitted, the judge made it clear in his directions to the jury that the onus of proof remained on the prosecution, and that the applicant did not have to prove anything. In particular, the judge told the jury that if it concluded that the applicant’s statement in his interview, that he was incapable of achieving an erection, might be true, the jury should return a verdict of not guilty. The jury was further directed in some detail that if it rejected the version given by the applicant in his interview, nevertheless the onus still remained on the prosecution to prove his guilt beyond reasonable doubt.
Ground 2 — Analysis and conclusion
In our view, ground 2 is not reasonably arguable for two reasons.
First, contrary to the submission made on behalf of the applicant, the arguments addressed by the prosecutor to the jury could not reasonably be considered to have reversed the onus of proof in the trial. In the circumstances, it was permissible for the prosecutor to point out that there was no medical evidence to support the applicant’s claim, in his record of interview, that he was incapable of maintaining an erection. Such a submission did not reverse the onus of proof, but did no more than remind the jury of the limited nature of the evidence on that issue.
In his submissions, counsel for the applicant placed particular reliance on the comment by the prosecutor to the jury — ‘All right, he can prove that.’ That comment, in fact, referred to a part of the applicant’s record of interview, in which, having been asked what he thought was alleged against him, the applicant responded that the interviewer had told him it was ‘rape’. The applicant then said: ‘…it’s not that [be]cause I know that I can prove that way that I couldn’t have done it’.
Contrary to the submissions made on behalf of the applicant, the reference by the prosecutor, to that part of the applicant’s interview, did not invert the onus of proof in respect of the issue whether the applicant had penetrated the complainant. The prosecutor, in addressing the claim by the applicant, that he was incapable of committing such an act, was entitled to point to the paucity of evidence supporting that claim. In doing so, it was permissible for him to refer to the applicant’s assertion, that he could prove he was incapable of achieving penetration, by way of an introduction to the argument that followed, namely, that there was no evidence adduced from a doctor concerning whether the applicant was impotent, or the degree of such impotence at a particular time. In that context, it was permissible and appropriate for the prosecutor to remind the jury that, in the record of interview, the applicant had stated that the first occasion, upon which he consulted a doctor concerning his condition, was some time subsequent to the time at which the offence was alleged to have been committed. The prosecutor was also entitled to point to the jury the fact that there was no evidence as to the extent or degree of the dysfunction relied on by the applicant.
Secondly, and in any event, the judge, in his comprehensive directions to the jury, made it plain that at all times the burden of proof of the applicant’s guilt remained on the prosecution. At an early stage in the charge, the judge gave the jury the usual orthodox directions on that topic, including that the accused did not have to prove anything. Later in the charge, after discussing with the jury the assessment of the evidence given by the witnesses in the trial, the judge reminded the jury that it was for the prosecution to prove the applicant’s guilt beyond reasonable doubt, and that it was not for the applicant to prove his innocence.
Finally, the judge gave specific directions to the jury concerning the content of the applicant’s record of interview. His Honour directed the jury that it should consider the answers given by the applicant and give them the weight that the jury thought they deserved. The judge told the jury that the fact that the applicant made the record of interview and gave answers did not ‘in any way’ alter the burden of proof, and did not mean that he must ‘in any way’ prove his innocence. The judge directed the jury that, in order to be able to find the applicant guilty of the charge of incest, it must be satisfied that that conclusion was the only reasonable conclusion open on all the evidence, and that the jury should take the applicant’s record of interview into account as part of that evidence.
The judge then gave the following directions to the jury:
If you believe that the accused’s account in his interview with police is truthful and accurate, then common sense says that if you consider he was telling the truth when he said he was incapable of getting an erect penis and was incapable of penetrating his daughter’s vagina, then that may lead you to the conclusion that you could not be satisfied beyond reasonable doubt that he was guilty of the offence of incest.
If you do not accept the account that he gave, but you consider that it might be true, then you must also enter a verdict of not guilty.
If you do not believe the account that he gave in the interview, then that does not lead you to say, ‘Right, guilty’. What you do then is, you put that evidence to one side. You reject it. And then you look at the whole of the evidence and ask yourself the question, ‘Am I satisfied beyond reasonable doubt that [the applicant] is guilty of the offence of incest?’
In that passage, the judge made it clear to the jury that the applicant did not bear any onus of proving the truth of what he had told the police in the interview, and the judge properly reminded the jury that in assessing the account given by the applicant in the interview, the onus of proof of the guilt of the applicant remained on the prosecution. In those circumstances, if, contrary to our earlier conclusion, the prosecutor did convey to the jury an argument that involved an impermissible reversal of the onus of proof, any such impression gained by the jury from that address would have been appropriately rectified by the thorough and careful directions given by the judge to the jury on that aspect of the case.
It follows that, in our view, ground 2 of the proposed application for leave to appeal is not reasonably arguable.
Ground 3 – Submissions
Ground 3 is concerned with evidence given by Alice as to the complainant’s behaviour after she had returned to live with Alice at the end of 2016.
As we have noted earlier, in response to a question by the prosecutor as to how the complainant had behaved since she returned to live with her, Alice said that until the end of 2018 the complainant’s behaviour had been ‘problematic’. She said that the complainant’s moods would change quickly ‘from being happy to really dark’, and that she was engaging in self-harm. Alice further said that the complainant did not have any friends, that she was struggling at school, and that she had trouble with authority. That evidence was given without any objection on behalf of the applicant.
In support of ground 3, counsel for the applicant submitted that that evidence was irrelevant and therefore was inadmissible. Counsel contended that the evidence was prejudicial, because there was a real risk that the jury might have used the evidence impermissibly to conclude that the allegations made by the complainant were true and that those allegations accounted for the changed behaviour by the complainant.
In support of that submission, counsel for the applicant pointed to other evidence called in the trial. In particular, the complainant, in the second VARE interview, had stated that, following the abuse, she engaged in self-harm. In addition, Ms Schofield gave evidence that when the complainant had attended the Youth Insearch Program in March and May, she had become very upset, and cried hysterically, when she attended sessions that were concerned with family abuse. Counsel noted that, in his final address the prosecutor had referred to that evidence as indicating that the complainant was a young girl who had suffered ‘significant emotional trauma’. Counsel submitted that that passage from the prosecutor’s address, together with the evidence contained in the complainant’s second VARE, and the evidence of Ms Schofield, gave further point to the impugned evidence of Alice that the complainant’s behaviour had been problematic since she had returned to live with Alice. Further, it was submitted, the evidence was additionally prejudicial, because it was likely to impermissibly provoke sympathy for the complainant.
In response, counsel for the respondent noted that, in the trial, counsel for the applicant did not object to the admission of the evidence. She submitted that that was unsurprising in circumstances in which the defence argument was that the complainant should not be believed because of her behaviour after the offence. It was further submitted that the evidence is relevant, because it supported the explanation given by the complainant why she had delayed in making a complaint about what her father had done to her.
Ground 3 — Analysis and conclusions
In addressing ground 3, it may be concluded that the evidence given by Alice, as to the behaviour of the complainant after she returned to live with Alice, was irrelevant to the prosecution case. The prosecution did not adduce any evidence that could link the behaviour of the complainant, during that period of time, with the offending behaviour of the applicant that was the subject of the complainant’s evidence, and did not rely on it to contend that her behaviour was a consequence of abuse.[4] If the evidence had been objected to, it ought to have been excluded.
[4]Cf Clay (a pseudonym) v The Queen (2014) 43 VR 405, 411 [29]; [2014] VSCA 269 (Weinberg, Osborn and Priest JJA).
It is not readily apparent why counsel for the applicant at the trial did not object to the admissibility of the evidence. In the respondent’s written submissions, it was suggested that objection was not taken, because the jury might have considered that the evidence reflected adversely on the credibility of the complainant. However, in his final address, counsel for the applicant did not advance any such submission to the jury.
The essential question, then, is whether the admission of that evidence resulted in a substantial miscarriage of justice.[5] In order to resolve that question, it is important to bear in mind the context in which the objectionable evidence was given by Alice. In that respect two points are relevant.
[5]Cf Nudd v The Queen (2006) 225 ALR 161, 164–5 [9]; [2006] HCA 9 (Gleeson CJ).
First, it would seem quite clear that the circumstances in which the complainant was raised were somewhat problematic. After her parents separated, the complainant and her siblings travelled to Darwin to live with their mother. When Alice became ill, the children resided with their grandmother in Geelong for two years. Following that, they then resided with the applicant in Traralgon. During that period of time, the applicant regularly drank alcohol to excess. In short, the circumstances in which the complainant was raised, during that period of time, were quite disruptive and difficult.
Secondly, and importantly, although, according to the evidence of Alice, after the complainant had returned to reside with her, the complainant’s behaviour was quite problematic, on the other hand it would seem that during that period she continued to have quite a warm and friendly relationship with her father. The evidence of the complainant, Alice and Natalie Woods was that, during that period, the complainant happily had access visits with the applicant every second weekend. On those occasions the complainant would spontaneously and without hesitation physically embrace the applicant when they met up.
In those circumstances, there was evidence before the jury, consisting of the disjointed circumstances of the complainant’s upbringing, which was capable of being considered by the jury as providing an alternative explanation for the troublesome conduct of the complainant after she returned to live with Alice. Further, there was evidence that, notwithstanding that conduct by the complainant, nevertheless during that period of time she enjoyed and readily engaged in weekend visits to the applicant. In those circumstances, it could not be concluded that there is a reasonable risk that the jury impermissibly took into account the impugned evidence as buttressing the evidence of the complainant as to the offending by the applicant.
In that respect, we do not accept the submission, advanced on behalf of the applicant, in respect of the evidence given by Ms Schofield as to the emotional response by the complainant to sessions that she attended on parental abuse at the Youth Insearch camp in 2018. It is not evident how that evidence given by Ms Schofield, in some way might have caused the jury to link the evidence given by Alice, as to the complainant’s problematic behaviour when she returned to live with Alice, with the complainant’s evidence that the applicant had subjected her to sexual abuse. The evidence, that was given by Ms Schofield, was not directed to aspects of the behaviour of the complainant of the kind described by Alice in the evidence that is the subject of the current ground of appeal. Rather, the evidence concerned the emotional response of the complainant when she attended sessions at the Youth Insearch camp that related to family abuse. The evidence of Ms Schofield was relevant and admissible, because it provided the context to the complaint of abuse which the complainant subsequently made to her in November 2018.
For those reasons, although the evidence of Alice, that is the subject of ground 3, ought not to have been admitted, we are not persuaded that it resulted in unfair prejudice to the applicant, or that it occasioned a substantial miscarriage of justice.
Ground 4 — Submissions
In support of ground 4, counsel for the applicant submitted that there was a significant body of evidence that, at the time of the alleged offence, the applicant had a serious problem with alcohol, and that he would drink to such excess that he would become unconscious. Counsel noted that, in his record of interview, the applicant, on a number of occasions, stated that he was unable to recall what had happened when he had become heavily intoxicated. In those circumstances, it was submitted, the evidence in the trial raised a reasonable possibility that, if the applicant did penetrate the complainant as alleged, his actions in doing so may not have been conscious and voluntary, and with the knowledge that he was thereby engaging in sexual penetration with a lineal descendant. Notwithstanding that evidence, the jury was not directed by the judge that, in order to convict the applicant, it must be satisfied beyond reasonable doubt that the act of the applicant, in penetrating the complainant, was conscious, voluntary and deliberate, and that the applicant had formed the specific intention to commit the act of penetration. Counsel submitted that although neither counsel sought such a direction from the judge, nevertheless it was necessary that the judge give such a direction to the jury, because the state of the evidence was such that it was not possible to separate the act and the intention to perform that act.
Counsel for the applicant contended, that based on the evidence, the performance by the applicant of the act of penetration, and his intention to perform that act, were so ‘linked’ that the jury was required to consider the mental state or otherwise of the applicant in performing the alleged offence. Counsel submitted that the effect of the judge’s directions meant that the jury could have convicted the applicant solely on the basis that it found that the act of sexual penetration had occurred, in circumstances in which the jury possessed a doubt whether the applicant had the intention to perform that act.
In response, counsel for the respondent referred to s 11(b)(i) of the Jury Directions Act 2015, which provides that after the close of evidence, defence counsel must inform the judge whether he or she considers that each element of the offence charged is or is not in issue. Counsel also referred to ss 15 and 16 of the Jury Directions Act, which provide that in the absence of any request by counsel, the judge was only obliged to give a particular direction if there were substantial and compelling reasons to do so. Counsel submitted that in the present case, there were no such substantial and compelling reasons. On the contrary, if the judge had given the directions, that are now sought under ground 4, those directions would likely have caused the applicant prejudice by undermining the applicant’s central defence that it was impossible for him to have performed the act of penetration alleged by the complainant.
Ground 4 — Analysis and conclusion
It is a fundamental principle that, in order that an accused person be found guilty of an offence, the relevant act of the accused must have been conscious, voluntary and deliberate. The accused must have intended to perform the particular act, and the act must have been a product of the accused’s conscious will.[6]
[6]See, eg, Ryan v The Queen (1966) 121 CLR 205, 215–16; [1967] HCA 2 (Barwick CJ); R v Tait [1973] VR 151, 154 (Winneke CJ, Gillard and Menhennitt JJ); R v Falconer (1990) 171 CLR 30, 39; [1990] HCA 49 (Mason CJ, Brennan and McHugh JJ).
In his charge, the judge told the jury that while there were four elements of the offence alleged against the applicant, only one was in issue. His Honour then said to the jury:
So the four elements are as follows: the first is, you must be satisfied beyond reasonable doubt that (1) the accused took part in an act of sexual penetration with the complainant; (2) the accused took part in this act intentionally; (3) that the complainant is the daughter of the accused, so that is the family relationship, daughter; and (4) that the accused knew that the complainant was his daughter.
So if you wanted a one word summary of each element, ‘penetration’, it has got to be sexual penetration; intention; daughter; knowledge.
And here is where it gets easier, because although there was a lot of discussion about Mr [Woods] being drunk at night and not remembering anything, he is not raising a defence of intention. He is not saying, ‘Well, I don't know if it happened, but I was acting as a robot, an automaton if it did’. He is not saying that. He is saying, ‘It didn’t happen’. Simple as that.
So the only element that is in dispute is the first element: whether or not you are satisfied beyond reasonable doubt that there was an act of sexual penetration with the complainant.
As counsel for the applicant has acknowledged, in the course of discussions with counsel before the judge charged the jury, neither counsel submitted that the judge should give a direction of the kind now contended for under ground 4. Nor did counsel raise any exception to the section of the judge’s charge in which his Honour instructed the jury as to the elements of the offence alleged against the applicant.
Section 15 of the Jury Directions Act provides that, subject to s 16, the judge must not give the jury a direction that has not been requested by counsel. Section 16(1) provides that the judge must give the jury a direction if the judge considers that there are ‘substantial and compelling reasons for doing so’ even though such a direction has not been requested by counsel.
In view of the evidence at trial, we do not consider that it is reasonably arguable that there were substantial and compelling reasons for the judge to give such a direction to the jury. There was no suggestion that the alleged act of penetration was accidental, or that it was not the product of the applicant’s conscious will. Indeed, it is difficult to conceive how an act of penile/vaginal penetration could be unintended, accidental or the product of an unconscious mind. Certainly, no such suggestion was made in the evidence of this case. The fact that the applicant might have been heavily intoxicated at the time of the alleged offending, so that he did not subsequently recall it, could not reasonably be considered to have raised any such issue in the present case.
In support of ground 4, counsel relied on the decision of this Court in R v AJS.[7] The facts of that case were quite different to those in the present case. In AJS, the accused was convicted of one charge of incest by digital penetration with his granddaughter. The accused’s defence was that he had been rubbing the complainant’s stomach because she was suffering from stomach cramps, and that he was not aware that in doing so, he touched her vaginal area. Clearly in those circumstances, the issue of whether the act of penetration was voluntary and intentional (willed) was squarely raised on the evidence.
[7](2006) 12 VR 563; [2005] VSCA 288 (‘AJS’).
Counsel for the applicant also relied on the decision of this Court in MG v The Queen[8] in support of the submission that the judge erred in failing to direct the jury that in order to convict the applicant, it must be satisfied that the act of the applicant, in penetrating the complainant, was conscious, voluntary, deliberate and intentional. In MG, the applicant was convicted on one charge of an indecent act with his thirteen year old daughter with whom he shared a bed. In his interview, the applicant said that he had gone to bed while intoxicated and that he had touched the complainant in the course of experiencing an erotic dream. The judge directed the jury that the prosecution was required to prove that the accused had intended sexual penetration, but the judge did not also say that the act of penetration must be voluntary, conscious and deliberate. On appeal, it was held that, in the circumstances of the case, the direction given by the judge, that the act must be intentional, foreclosed the possibility that a direction, that the act must also be conscious and voluntary, may have affected the verdict of the jury.[9]
[8](2010) 29 VR 305; [2010] VSCA 97 (‘MG’).
[9]Ibid 312 [30] (Warren CJ, Neave and Redlich JJA).
Plainly, the circumstances in MG were quite distinct from those in the present case. In MG, the issue whether the act alleged against the accused was conscious, voluntary, deliberate and intentional, was explicitly raised by the accused in his record of interview. By contrast, in the present case, the central point, raised by the applicant in his record of interview, was that he was physically incapable of penetrating the complainant. The fact that the applicant also stated that, on the occasions in which he found himself in bed with the complainant, he was heavily intoxicated, did not raise the issue, in those circumstances, that, if he did penetrate the complainant, his actions in doing so were not conscious, voluntary, deliberate and intentional. Nor did the evidence raise any suggestion that the applicant was so intoxicated that he did not or could not have realised that the person with whom he was in bed was his young daughter.
Accordingly, there was no basis upon which the judge was required to direct the jury that, if it was satisfied beyond reasonable doubt that the applicant had penetrated the complainant, it must also be satisfied that his actions in doing so were conscious, voluntary, deliberate and intentional. In addition, there is substantial force in the submission by the respondent that if the judge had given to the jury the direction of the kind contended for under ground 4, such a direction might have distracted the jury from, and undermined, the principal issue raised on behalf of the applicant, namely, that it was impossible for him to have performed the alleges act of penetration. The critical issue in the case was whether the jury was satisfied, beyond reasonable doubt, that the act of penetration had occurred. In the circumstances of the case, a suggestion that if the act had occurred, it might not have been intentional, conscious or willed, might well have been perceived by the jury to detract from the force of the proposition that the applicant was physically incapable of performing the act of penetration alleged by the complainant.
Accordingly, it is not reasonably arguable that there were substantial and compelling reasons for the judge to give to the jury a direction concerning the requirement that the act of penetration was conscious, voluntary, deliberate and intentional. On the contrary, we consider that there were substantial reasons why the judge, correctly, did not do so.
It follows that ground 4 of the proposed application for leave to appeal must fail.
Ground 5 — Submissions
Ground 5 is directed to the evidence given by Dr Flower concerning the note made by the complainant in her scrap book (defence exhibit 1), in which she expressed her love for the applicant.
It will be recalled that after giving evidence, in general terms, as to the reactions and conduct of children who have been the subject of abuse by parents, Dr Flower was asked by the prosecutor as to her ‘impressions’ concerning that note. In response, Dr Flower expressed the view that the note spoke as to the relationship between the complainant and the applicant that existed ‘outside of the abuse’, consistently with the conduct of children who have been abused on a regular basis and who accommodate the abuse by in effect compartmentalising it. Dr Flower also expressed the view that the note might have been a ‘very idealised view’ held by the complainant as to the type of relationship that she wished that she had with the applicant.
In support of ground 5, counsel for the applicant correctly accepted that it was admissible for Dr Flower to give general evidence as to the reactions and conduct of children who have been subjected to parental abuse. However, counsel submitted, it was not permissible for Dr Flower to give evidence concerning her impressions of the note made by the complainant. Counsel submitted that ordinarily, evidence of the kind given by Dr Flower is confined to evidence as to the expert witness’s general opinion. Such evidence is admissible in order to explain counter-intuitive behaviour of child complainants in cases of sexual abuse, and thus is admissible to rehabilitate the credit of a complainant. However, it was submitted, it was impermissible for the witness to give specific evidence as to the particular reaction or conduct of a complainant.
In response, counsel for the respondent submitted that the impugned evidence given by Dr Flower did not purport to opine that the complainant was a truthful witness. Nor did it attempt to warrant that the offending alleged by the complainant was more probable. Rather, it was submitted, the evidence remained sufficiently general to comply with the requirements of s 388 of the Criminal Procedure Act and s 108C of the Evidence Act. Further, it was submitted, there was good reason why counsel for the applicant at trial did not object to the admissibility of the impugned evidence. In cross-examination, counsel addressed questions to Dr Flower as to the particular behaviour of the complainant, in order to demonstrate that that conduct by the complainant was inconsistent with her allegation that the applicant had sexually abused her.
Counsel for the respondent further noted that in his charge, the judge directed the jury that the evidence given by Dr Flower concerning the note related to the quality of the relationship between the applicant and the complainant outside the abuse, and that Dr Flower could not give evidence whether the abuse had occurred, because that was outside the purview of her expertise. It was submitted that that direction was sufficient to ensure that the jury did not make any impermissible use of the evidence given by Dr Flower concerning the note written by the complainant.
Ground 5 — Analysis and conclusion
As noted, counsel for the applicant correctly accepted that it was admissible for Dr Flower to give general evidence as to the reactions and conduct of children who have been subjected to abuse by a parent. Such evidence is admissible under s 108C of the Evidence Act and s 388 of the Criminal Procedure Act as an exception to the credibility rule specified under s 102.
The relevance of such evidence was described by Osborn JA in MA v The Queen[10] in the following terms:
Such evidence could not establish that it was probable the complainant was telling the truth, but it could establish that her behaviour was not demonstrative of untruthfulness by reference to common or usual patterns of behaviour as asserted by the defence. In this sense, it could establish that the counter-intuitive behaviour complained of was of neutral significance. It could not demonstrate that the behaviour rendered it more or less likely that the offending had occurred as alleged.[11]
[10](2013) 40 VR 564; [2013] VSCA 20 (‘MA’).
[11]Ibid 568 [22].
The admissibility of evidence, of the kind given by Dr Flower, is subject to the principles that apply to expert evidence. In particular, under s 79(1) of the Evidence Act, an expert witness is only permitted to give opinion evidence that is wholly or substantially based on specialised knowledge that the witness has acquired from his or her training, study or experience.[12]
[12]See Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743–4 [85]; [2001] NSWCA 305 (Heydon JA); Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 603–5 [35]–[40]; [2011] HCA 21 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In the present case, it is not in dispute that Dr Flower was sufficiently qualified to give general evidence as to the reactions and behaviour of children who have been subjected to parental abuse, and, in particular, in relation to the conduct and reactions of such children which might otherwise appear to be counter-intuitive or inconsistent. However, Dr Flower did not have a proper basis to give evidence concerning the particular reaction of the complainant as expressed in the note written by her, or as to the significance and interpretation of the note. The evidence given by Dr Flower, concerning the note, was not based on any relevant expertise held by Dr Flower. Having heard the general evidence given by Dr Flower, the jury’s view concerning the relevance of the note was no less informed than, and as equally valid as, any opinion expressed by Dr Flower concerning the relevance of the note in the context of the issues in the trial. In essence, the opinion expressed by Dr Flower rose no higher than hypothesis or speculation.
In Dupas v The Queen,[13] and in MA, it was emphasised that, save in exceptional cases, evidence of the kind given by Dr Flower may not extend to an expression of opinion by an expert witness concerning the particular complainant’s behaviour after the alleged offending conduct.
[13](2012) 40 VR 182; [2012] VSCA 328 (‘Dupas’).
In Dupas, the applicant was convicted of the murder of a young woman at the Fawkner Cemetery in November 1997. In the trial, four witnesses gave evidence concerning the identity of a man who they had observed at the cemetery at about the time of the murder. Counsel for the accused called an expert witness, Dr Kemp, to give evidence about the effect of the exposure of a witness to post-event information, such as publicity, and how that information might affect a witness’ memory. The trial judge ruled that it was admissible for Dr Kemp to give general evidence about the potential dangers caused by the exposure of a witness to information that has come to the witness’ attention after an event observed by the witness. However, the judge ruled that Dr Kemp was not permitted to give specific evidence as to whether the circumstances of each of the four identification witnesses, called in the trial, were examples of those dangers. In concluding that the judge was correct to confine the evidence of Dr Kemp in that way, the Court said:
As we have pointed out, the applicant did not seek at trial to adduce evidence from Dr Kemp as to the reliability of the identification by each witness, or the degree to which that witness’s evidence might be unreliable. Dr Kemp had explicitly stated during the course of the voir dire that he could not give such evidence. Accordingly, there was no factual foundation for the argument that Dr Kemp should have been permitted to give evidence as to his opinion as to the reliability of the particular identification evidence. Nor was the nature of his evidence on that subject such as could have substantially affected the assessment of the credibility of the witnesses, within the meaning of s 108C(1)(b)(ii). The general evidence having been admitted, the jury were as well placed as Dr Kemp to assess whether and to what extent the general propositions bore on the credibility of the individual witnesses.
…
The judge excluded Dr Kemp’s specific evidence because he could not express an opinion as to the reliability of the individual identifications. He had not been provided with all of the detail of how those identifications occurred, nor had he interviewed or observed any of the witnesses. As he acknowledged in the case of each witness, he could not express an opinion about the reliability of that witness’s identification, nor could he assess the likelihood of the identification being unreliable.
The judge therefore concluded — correctly, in our view — that for Dr Kemp to have commented upon the precise circumstances pertaining to each identification, or to have expressed a view as to whether those circumstances gave rise to the risk of unreliability, would have been tantamount to him expressing the opinion that the individual identifications were unreliable. As we have said, the necessary foundation did not exist for him to extrapolate from the research to the circumstances of each identification (about which he was not fully informed) or to the individual witnesses (about whom he knew very little).
An opinion about the circumstances would have gone outside the scope of his specialised knowledge. An opinion about the reliability of the identifications would necessarily have rested on a combination of speculation, inference and personal views.[14] At the same time, such an opinion would have been invested with a spurious appearance of authority, and would have subverted the legitimate processes of fact-finding.[15]
[14]See HG v The Queen (1999) 197 CLR 414 at 428, [41] per Gleeson CJ.
[15]Dupas (2012) 40 VR 182, 258–9 [277], [281]–[283]; [2012] VSCA 328 (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA).
In MA, the accused was convicted of seven charges arising out of sexual assaults of his daughter. The prosecution called a psychiatrist who gave evidence as to the conduct of children who have been subjected to sexual abuse, and, in particular, about conduct of such children which might otherwise seem to be counter-intuitive. The evidence was given by the expert in general form. On appeal, it was submitted that the evidence was so general that it could not have been relevant. That submission was rejected on the basis that the evidence was relevant to rebutting the defence assertion that the complainant’s behaviour was inconsistent with her allegations of abuse.[16] In their concurring judgment, Redlich and Whelan JJA expressed the following caution, concerning such evidence, which is relevant to the present case:
We should say before leaving the question of expert evidence bearing upon the credibility of a complainant that one would not ordinarily expect an expert to be asked to express an opinion concerning the complainant’s actual behaviour after the alleged offending conduct or the reasons of a parent in the case before the court for not accepting the complainant’s claim or the complainant’s actual reaction to the rejection of her claim. These are questions which are within the jury’s province to resolve. The occasion should be relatively rare where an expert should be invited to express an opinion as to the actual behaviour of the victim or the victim’s parent and whether it advanced the probabilities of a fact in issue. Where a party seeks to have an expert go so far, the obligation of the trial judge under s 137 of the Evidence Act to exclude evidence if its probative value was outweighed by its prejudice may assume greater significance. Such questions did not arise in this trial.[17]
[16]MA (2013) 40 VR 564, 575 [53]; [2013] VSCA 20 (Osborn JA).
[17]Ibid 586 [100].
Based on those principles, it may be concluded that the evidence of Dr Flower, concerning the import of the note written by the complainant, was not admissible. The question, then, is whether the introduction of that evidence has resulted in a substantial miscarriage.
In answering that question, it is important to note that the evidence was admitted at the trial without objection by counsel then acting for the applicant, in circumstances in which counsel had ample opportunity to object to the admissibility of the evidence if he had been minded to do so. On an examination of the transcript, is evident that, in the circumstances of the trial, counsel made a forensic decision not to object to the evidence, as he intended to question Dr Flower on a related matter which, it would seem, counsel considered was worth pursuing in cross-examination.
After Dr Flower had given general evidence as to the behaviour of children who have been subjected to abuse, the prosecutor requested that Dr Flower be shown the note (exhibit 1). The prosecutor then, by way of explanation, told the witness that the note had been written by the complainant, and asked her whether she had an opportunity to read the document. Those questions were each asked by way of a prelude to the particular question then asked by the prosecutor of Dr Flower as to her ‘impression’ concerning the note. In those circumstances, counsel for the applicant clearly had adequate opportunity to object to the evidence then given by Dr Flower if he had desired to do so.
In evidence in chief, Dr Flower qualified her evidence based on the note by saying that she had not seen the complainant and that her evidence was based on general understanding. In cross-examination, counsel for the applicant went further and addressed questions to Dr Flower relating to specific conduct of the complainant in the case. In particular, counsel questioned Dr Flower as to the significance of the conduct of the complainant in continuing to spend each second weekend overnight with the applicant, and counsel put to Dr Flower that was ‘somewhat unexpected behaviour’ in light of her allegations of having been abused by the applicant.
In those circumstances, it is clear that counsel for the applicant, at trial, made a forensic decision not to object to the evidence given by Dr Flower about the note, in order that he be able to ask questions of the witness, in cross-examination, as to other specific conduct by the complainant, with a view to demonstrating that that conduct was inconsistent with the evidence by the complainant as to the abuse by the applicant of her. The answers, given by Dr Flower, to those questions, in effect connected the general evidence that she had given, about post-abuse conduct by children, with, and thus explained, the otherwise apparently counter-intuitive conduct of the complainant in continuing to make weekend visits to the applicant after she had returned to live with her mother. In the circumstances, any unfair prejudice, arising from the inadmissible evidence given by Dr Flower about the complainant’s note, was overtaken by and subsumed in the evidence, that she gave in cross-examination, about the complainant’s post-abuse weekend visits to the applicant.
As noted by counsel for the respondent, the judge gave particular directions to the jury as to the use which it could make of Dr Flower’s evidence. His Honour told the jury that Dr Flower’s evidence was given from a general perspective because the witness had not examined or assessed the complainant. In summarising the evidence of Dr Flower, the judge told the jury that Dr Flower expressed the view that the note written by the complainant spoke to the quality of the relationship between the applicant and the complainant ‘potentially outside abuse’. The judge then added:
She [Dr Flower] could not say that there was abuse, because that was outside the purview of her expression of opinion.
In those circumstances, while the evidence of Dr Flower concerning the significance of the note was not admissible, it is clear that counsel for the applicant at trial made a forensic decision not to object to it, but, rather, to question Dr Flower specifically about the conduct of the complainant, in order to endeavour to demonstrate that that conduct was inconsistent with her allegation against the applicant. The evidence given by Dr Flower, concerning the note, was of quite brief compass. Any prejudice occasioned to the case of the applicant, as a result of that evidence, was subsumed by the effect of the evidence given by Dr Flower, in cross-examination, about the conduct of the complainant continuing to make weekend visits to the applicant after the abuse. If there was any residual prejudice, it was sufficiently allayed by the appropriate directions given by the judge to the jury, and, in particular, his Honour’s reminder to the jury that the evidence of Dr Flower was given from a general perspective, and that it was not the province of Dr Flower to say whether or not abuse had occurred.
Accordingly, while we are persuaded that ground 5 is sufficiently arguable for the purposes of granting leave, we do not uphold ground 5.
Ground 6
Ground 6 of the application for leave to appeal is based upon the assumption that grounds 2 to 5, or a significant number of them, are upheld. In essence, it is submitted that the combination or aggregation of errors, alleged in those grounds, has had the consequence that the applicant has not had a fair trial, and that accordingly there has been a substantial miscarriage of justice.[18] As a result of our conclusions as to the first four grounds, the submission advanced on behalf of the applicant under ground 6 is only relevant to the matters that we have discussed in respect of grounds 3 and 5.
[18]R v Kotzmann [1999] 2 VR 123, 157 [114]; [1999] VSCA 27 (Batt JA); Meyer (a pseudonym) v The Queen [2018] VSCA 140, [259]–[260] (Priest and Kaye JJA).
In respect to ground 3, the evidence as to the difficult behaviour of the complainant, after she returned to live with Alice, was admitted without objection. As we have discussed, that evidence was unlikely to have occasioned unfair prejudice to the case of the applicant.
In respect to ground 5, it is apparent that counsel acting for the applicant at the trial made a deliberate choice not to object to evidence given by Dr Flower concerning the note made by the complainant, in order that counsel be able to cross-examine Dr Flower concerning the conduct of the complainant in continuing to participate in overnight weekend visits to the applicant after the offending. For the reasons that we have set out, we do not consider that the evidence of Dr Flower, concerning the note, resulted in any prejudice to the right of the applicant to a fair trial.
Taking those matters together, we are not persuaded that, if a different course had been taken by counsel for the applicant in respect of the matters that are now the subject of grounds 3 and 5, it would have made any difference to the overall outcome of the trial. In particular, we are not persuaded that the combination of those three factors resulted in the applicant being deprived of a fair trial. As we will discuss under ground 7, the prosecution case was particularly strong. Accordingly, the combination of the matters, that were the subject of grounds 3 and 5, did not result in a substantial miscarriage of justice.
For those reasons, ground 6 must fail.
Ground 7 — Submissions
In the applicant’s written submissions in support of ground 7, it was contended that, by reason of a combination of factors, it was not open to the jury to be satisfied, beyond reasonable doubt, of the guilt of the applicant. In summary, those factors included the following:
•The complainant’s evidence, in the VARE statements, was (it was submitted) marked by features of imprecision and vagueness. The evidence was contradictory, inconsistent and improbable, and bereft of necessary detail.
•The description, that the complainant gave in the VARE statements as to the sexual act involved in the commission of the offence, that was the subject of the charge, was quite different to the description that she gave to Alice. Further, the complainant’s account of that act lacked credibility and appeared to be contrived and unrealistic.
•The representation by the complainant to Ms Woodward, that the abuse commenced when she was eight years of age, was inconsistent with the prosecution case.
•The previous representations (complaints) by the complainant, relied on by the prosecution, were vague and uncertain, and suggest that the responses that she made, when speaking to Ms Schofield and Ms Woodward, were contrived.
•The gross level of intoxication of the applicant at the time of the commission of the offences suggested that it was implausible that the offence could have been committed in the manner alleged by the complainant.
•The claims by the applicant of erectile dysfunction in the record of interview were spontaneous and unvarnished, and added significant weight to the improbability that the alleged acts would have been committed by the applicant while he was grossly intoxicated.
•The conduct of the complainant after she returned to live with her mother, and her continued access visits to the applicant, were inconsistent with the allegations made by the complainant.
•The response by the applicant to the pre-text call made by Alice bespoke his ignorance as to the fact that the call was being recorded, or at least raised a reasonable doubt about his guilt.
•The character evidence called on behalf of the applicant, and the fact that he had no previous convictions, weighed further in favour of the applicant’s innocence.
In oral submissions, counsel for the applicant relied, principally, on the following propositions: that there were a number of inconsistencies in the account given by the complainant; that her account was effectively an ‘evolving’ phenomenon; that the complainant had delayed in making any complaint of abuse against the applicant; and that, subsequent to the alleged abuse, the complainant had engaged in conduct that was inconsistent with the happening of such abuse, in particular by continuing to make weekend visits to the applicant.
In support of those submissions, counsel noted that, in the first VARE, the complainant had been quite hesitant in descending into any detail concerning the complaint that she made against the applicant. In that VARE, she said that the abuse had only happened twice. She also said that on occasions she woke up without any clothes on. Counsel submitted that it was quite unlikely that the applicant would have been able to remove her clothing without the complainant first awakening. Counsel noted that, in the second VARE, the complainant’s account expanded. She said that she woke up each morning with a sense of unease, and she said that the abuse had occurred on at least four or five specific occasions that she could recall, but she also remembered that it had happened more often. Counsel for the applicant further noted that the complainant stated in the first VARE that the two instances of abuse had occurred four weeks apart, but in her second VARE she said that they occurred one or two years apart. Counsel also emphasised that the continued weekend visits by the complainant to the applicant, after the alleged abuse, bespoke of a close and trusting relationship between the complainant and the applicant, which was inconsistent with the claim that the applicant had sexually abused her.
In response, counsel for the respondent submitted that it was well open to the jury to be satisfied on the evidence, beyond reasonable doubt, of the guilt of the applicant.
In particular, counsel for the respondent noted that when the complainant participated in the first VARE interview, she was clearly uncomfortable about disclosing what the applicant had done to her. Subsequently, in the second VARE, she had become more comfortable with describing what had happened. Thus, it was submitted, it was understandable that her account was more expansive in the second VARE than in the first VARE. That degree of confidence explained why the complainant was able to say that she had a specific recollection of four or five nights on which the abuse occurred, but that virtually every morning she would feel ‘gross’.
Counsel for the respondent further noted that the evidence, relied on by the prosecution included, not only the VARE statements of the complainant, but also the evidence of complaint, and the tendency evidence. The prosecution also relied on the contents of the applicant’s record of interview, which, it was submitted, added particular force to the prosecution case. In those circumstances, it was submitted that it was reasonably open to the jury to convict the applicant.
Ground 7 — Analysis and conclusion
Ground 7 is based on s 276(1)(a) of the Criminal Procedure Act, which provides that the Court should allow an appeal against conviction if the court is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the particular charges in issue.[19] In determining that question, the Court is required to make its own independent assessment of the evidence. However, in doing so it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person.
[19]M v The Queen(1994) 181 CLR 487, 492–3; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v The Queen(2011) 243 CLR 400, 405–6 [11]–[14]; [2011] HCA 13 (French CJ, Gummow and Kiefel JJ); Pell v The Queen[2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
In R v Baden-Clay,[20] the High Court stated:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.[21]
[20](2016) 258 CLR 308; [2016] HCA 35.
[21]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted). See also Fennell v The Queen[2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
In Pell, the High Court emphasised that the assessment of the credibility and reliability of a witness, which is based on the manner in which the witness gave evidence in the witness box, is a matter for the jury and not the appellate court. The Court stated:
… [T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
...
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[22]
[22]Pell[2020] HCA 12, [37], [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).
The starting point, in determining ground 7, is the evidence of the complainant. It is not contended on behalf of the applicant that that evidence was insufficient to support a verdict of guilty on the charge of incest. Rather, it is contended that it was not open to the jury to be satisfied, beyond reasonable doubt, as to the truthfulness and reliability of the evidence by the complainant that she was penetrated by the applicant in performing the act that is the subject of the charge.
The evidence of the complainant, concerning that act, did not, of course, stand alone. It was supported by a number of other items of evidence.
In addition to describing the act of penetration, that was the subject of the charge, the complainant gave evidence that, on a number of occasions, she would wake up to find the applicant in bed close with her and with his stomach and chest pressed up behind her. She also gave evidence that on a number of occasions the applicant had touched her inappropriately and in a sexual manner.
The complainant’s evidence that on a number of occasions she woke up to find the applicant in bed with her was supported by other evidence, and the applicant made admissions in relation to it in his record of interview. The complainant’s brother James observed the applicant lying on the complainant’s bed, albeit at night time, and not in the morning. More significantly, the complainant made specific complaints to her mother Alice about the applicant’s conduct in getting into her bed. Alice stated that when the complainant spoke to her about that, the complainant would be upset, that she would cry, and say that she was ‘really uncomfortable’.
In his record of interview, the applicant admitted that on some occasions he had woken up to find himself in the complainant’s bed. Initially, he admitted to doing so on one occasion, but later in the interview, he said that he did not know on how many occasions that it had occurred, but it was ‘two or three times maybe’. He also stated that he would not do such a thing if he was sober. When he woke up, he thought to himself ‘[w]hat the hell am I doing in here?’ and got out of the bed.
In those circumstances, the jury was entitled to construe the conduct of the applicant, in getting into his daughter’s bed, in that way, as not being readily susceptible of an innocent construction. That is particularly so in light of the complaint made by the complainant to her mother that she felt particularly uncomfortable when she found her father in bed with her.
The complainant’s evidence, as to the offence, is also supported by the evidence that she gave as to other sexual touching of her by the applicant, which constituted uncharged acts. That evidence was adduced as tendency evidence, to demonstrate that the applicant had a sexual interest in the complainant and that he had a willingness to act on it.
In his record of interview, the applicant did not squarely deny that he had engaged in that type of conduct. When it was put to him that the complainant had said that when he was in bed with her, he had touched her all over the body, the applicant responded ‘… I can’t remember at all so I can’t call her a liar’. He also admitted that it was wrong for him to have been in the same bed with his daughter whilst wearing only his underwear. When asked if there was any possible way that he could have done ‘something’ in bed while he was in a state in which he could not subsequently remember, he responded ‘[p]ossibly, yeah, I can’t deny that, you know’.
In those circumstances, and taking also into account the complaint made by the complainant to her mother, the jury was well entitled to be satisfied as to the reliability of the tendency evidence given by the complainant. In turn, that evidence provided an important support to the complainant’s evidence as to the act of penetration which constituted the charge on which the applicant was convicted.
The evidence of the complainant was further supported by the evidence of the complaint that she made to Ms Woodward and Ms Schofield while she was attending a weekend workshop at Rawson in November 2018. The evidence as to the complaint was quite cogent. As Ms Woodward stated, after the complainant had attended a session concerning sexual assault, she was visibly distressed. It was in that context that the complainant said to Ms Woodward that the applicant used to do ‘stuff’ to her. The jury was entitled to consider that, in the circumstances, the complainant was understandably quite reticent in disclosing precisely what the applicant had done to her. Similarly, the evidence of Ms Schofield about the circumstances in which the complainant revealed that the conduct of the applicant, about which she was upset, was sexual abuse, was quite credible.
The principal issue raised on behalf of the applicant, and as asserted by him in the interview, was that he was incapable of achieving penetration of the complainant, because he suffered erectile dysfunction due to his diabetic condition.
In that respect, the applicant had told the police that as time went by his condition became ‘worse and worse and worse … until the — nothin’ stood up’. When asked if he was confident that it was during the period in which the complainant was living with him that he was unable to get an erection, the applicant responded ‘[i]t must’ve …’. The applicant further stated that he did not consult a doctor about that issue until sometime after the complainant had departed from his premises.
The account given by the applicant, was quite equivocal as to whether, at the time of the offence, he lacked the physical capacity to achieve an erection. In determining the effect of the applicant’s account, the jury was entitled to take into account that the applicant did subsequently marry his girlfriend Natalie, after having been prescribed Viagra. The fact, that the applicant would have embarked on a romantic relationship with his future wife, would have been a material factor to be taken into account by the jury in assessing his claim that at the time of the alleged offence he was incapable of achieving an erection.
All of the matters, that we have so far discussed, gave substantial support to the evidence of the complainant. It is in that context that we turn to the matters relied on by the applicant in support of ground 7.
It may be accepted that there was a degree of imprecision, and some inconsistency, in the VARE statements made by the complainant. However, overall the account given by the complainant was consistent, namely, that when she lived with the applicant, after her brother left the home, the applicant acted in a sexual manner towards her, that he would get into bed with her, and that, when he did so, he would penetrate her. She was also quite consistent in her VARE statements in describing the position in which she was lying, and the actions of the applicant, when he penetrated her. As submitted by counsel for the respondent, it is understandable that the complainant, in the first VARE, would have been somewhat reticent in describing what the applicant had done to her, so that it was only after she had gained some further confidence that, in the second VARE, her account became more expansive and detailed. It was a matter for the jury to determine whether, taking into account the age of the complainant, and her reticence in speaking about the subject, the account given by her was implausible or improbable as contended on behalf of the applicant.
The representation, which Ms Woodward said was made to her — that the abuse commenced when the complainant was eight years of age — was inconsistent with the prosecution case. On the other hand, the complainant told Ms Schofield that the abuse had taken place until two years previously, that is, until 2016, when she went back to live with her mother. The account that she gave to the police in her VARE statements, one month later, was also consistent with the prosecution case, namely, that the offending occurred in the period between James’s departure from his father’s home and the complainant leaving it.
As discussed under ground 2, counsel for the prosecution was entitled to point out to the jury the limited nature of the evidence relied on by the applicant in support of his claim that he was incapable of achieving sexual penetration with the complainant. On the applicant’s own account, he first consulted a medical practitioner about that problem some time subsequent to the date of the alleged offending. In his interview, he said that the problem had first become evident some five years previously, and that subsequently it had deteriorated. However, there was no evidence as to the nature and extent of the problem at the time in which the offending occurred, and whether the problem had reached such a stage that it had rendered the applicant incapable of achieving an erection. In those circumstances, the jury was entitled to give limited, if any, weight to the claim by the applicant, in the interview, that he had a degree of erectile dysfunction.
Further, in view of the evidence of Dr Flower, the jury was entitled to consider that the conduct of the complainant, in returning to the applicant’s house for weekend access visits, was not inconsistent with her account as to the abuse to which he subjected her. Based on the evidence given by Dr Flower, as to the conduct of children who have been subjected to parental abuse, the jury was entitled to conclude that the otherwise counter-intuitive conduct of the complainant, in continuing to visit the applicant on weekends, conformed with the conduct of other children described by Dr Flower. In circumstances in which the complainant did not have an altogether happy relationship with her mother, it was open to the jury to conclude that the conduct of the complainant, in continuing to visit the applicant, reflected the fact that she had otherwise had some positive experiences with the applicant, and that she had compartmentalised and accommodated the abuse to which he had subjected her. Thus, the jury was entitled to form the view that the conduct of the complainant, in continuing to visit the applicant, and writing in affection that note to him, was not inconsistent with her evidence that the applicant had sexually abused her.
In those circumstances, we are not persuaded that it was not reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the applicant. Based on the evidence that we have discussed, we consider that there was a strong case presented to the jury as to the guilt of the applicant.
It follows that ground 7 must fail.
Summary of conclusions
For the foregoing reasons, we consider that grounds 3 and 5 of the proposed application for leave to appeal against conviction are reasonably arguable. In those circumstances, it is appropriate to grant the application for an extension of time, and to give leave to the applicant to appeal on those grounds. For the reasons that we have given, having heard full argument on those proposed grounds, we are not persuaded that any of them should succeed. It follows that while the application for leave to appeal should be granted, the appeal must be dismissed.
- - -
2
15
0