Woods v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0004

KATHRYN JOY WOODS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2019
DATE OF JUDGMENT:	13 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 259
JUDGMENT APPEALED FROM:	[2018] VCC 2131 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Conviction – Inconsistent verdicts – 14 charges of sexual offences against one complainant – Verdicts of guilty on 2 charges – Verdicts of acquittal on 12 charges – Whether inconsistency of verdicts – Rational basis for differential verdicts – Leave to appeal refused – MacKenzie v The Queen (1996) 190 CLR 348 and MFA v The Queen (2002) 213 CLR 606 applied.

CRIMINAL LAW – Appeal – Sentence – Indecent assault, gross indecency – Sentenced to 2 years community correction order with condition for supervision – Whether manifestly excessive – Serious offending – Applicant in position of trust – High moral culpability – No insight into offending – Sentence within range – Leave to appeal refused – Clarkson v The Queen (2011) 32 VR 361 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy SC	Gordon Legal
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

KAYE JA
NIALL JA:

The applicant was charged on indictment with fourteen sexual offences. They comprised one charge of sexual penetration with a person who was above the age of 10 years but under the age of 16 years; six charges of gross indecency with a person under the age of 16 years; and seven charges of indecent assault of a person under the age of 16 years. The jury, empanelled on her trial in the County Court, convicted the applicant of one charge of indecent assault (charge 6) and one charge of gross indecency (charge 7), but acquitted her of each of the other 12 charges.

The applicant was sentenced to serve a community correction order for two years. The judge attached to the order conditions requiring 200 hours unpaid community work (with the hours of treatment to be counted as unpaid community work), treatment and rehabilitation as directed, participation in courses that addressed the factors relating to her offending conduct, and supervision.

The applicant seeks leave to appeal her convictions on charges 6 and 7 on the ground that they are unsafe and unsatisfactory, in that they are unreasonably inconsistent with the verdicts of acquittal on the other 12 charges. She also seeks leave to appeal the sentence on the ground that it is manifestly excessive.

Background

Each of the charges concerned a single complainant, AB,[1] who was born on 23 July 1970. The applicant was born on 4 September 1959. The offending was alleged to have been committed between January 1984 and July 1985. The two offences, on which the applicant was convicted, were alleged to have been committed between 26 December 1984 and 30 January 1985, when AB was 14 years of age, and the applicant 25 years of age.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms and the use of initials in place of the names of the complainant, witnesses and the primary school.

The applicant became acquainted with AB while he was a student at MS Primary School, which he attended until the completion of year 6 in 1982. In 1981, when AB was 10 years of age, the applicant was his grade 5 teacher. She was then in her graduate year of teaching. It was the practice of the applicant to visit the families of all her students as part of the school’s pastoral care program. Pursuant to that practice, she first visited AB’s family in about February 1981. It was in that context that she developed a close friendship with AB’s parents and, in particular, with his father. As a consequence, she was invited to attend, and attended, a number of family dinners and other social functions and activities at their family home and other places.

During 1981, AB travelled overseas with his parents to visit their family in the United Kingdom. As a result, he missed about six weeks of school. AB’s parents were concerned that he would be disadvantaged in his schoolwork, and arranged for the applicant to attend their home and tutor AB there in order to assist him. The applicant tutored AB at his home on three or four occasions during that period. In doing so, the applicant developed a very close friendship with AB and his family, which continued after he completed grade 5. In the following year, she coached a football team of which AB was a member.

The applicant continued to have contact with AB after he commenced his secondary education, in a different school, in 1983. She continued to maintain her friendship with AB’s family, and attended their home about once per week or once per fortnight. During the same year, she moved from her parents’ home and into a flat. During that period, a number of students from her school, and AB, would visit the flat. Towards the end of that year (1983), AB’s parents requested that he stay at the applicant’s flat for a couple of weeks while the family home was being renovated. The applicant acceded to that request, and AB moved into her flat during that period. It was not alleged that any inappropriate or sexual conduct occurred at that time.

On 6 January 1984, AB and the applicant attended the cinema to see the film ‘Risky Business’. AB alleged that on the same evening, after having seen the film, he returned to the applicant’s flat, where the offences the subject of charges 1 and 2 were committed. He alleged that the offence the subject of charge 3 took place at the same premises on the following day.

At that time, the applicant commenced a position as a governess on a sheep station in northern Queensland, where she remained until 3 December 1984. Between 23 June and 8 July 1984, AB travelled to Queensland with the applicant’s parents, and holidayed with them, and the applicant, in Townsville and Cairns. AB alleged that a number of sexual acts occurred between himself and the applicant during that period, which constituted uncharged acts in the proceeding. While the applicant was in Queensland, she engaged in frequent lengthy correspondence with AB. Over the ensuing years, AB retained that correspondence, and copies of the letters written to him by the applicant were tendered in evidence as part of the jury book.

During the latter part of 1984, AB’s parents commenced to plan a trip overseas in the forthcoming Christmas holidays. In the meantime, the applicant returned to Melbourne for a two-week period between 3 October and 18 October 1984, in order to attend an interview for a position that was available at a school in the next year. It was alleged by AB that the incident the subject of charges 4 and 5 took place in that period, in the vehicle of a friend of the applicant’s (G).

After the applicant returned to northern Queensland, she continued to communicate with AB in writing. In that correspondence, she indicated her desire for him to stay with her, or for her to stay at his home, during the five-week period in which AB’s parents would be overseas over the forthcoming Christmas and New Year period.

The applicant returned to Melbourne in early December 1984. On 26 December 1984, AB’s parents went on a holiday to the United Kingdom. By an arrangement that they had made before their departure, the applicant moved into their home in order to look after AB during their absence until 30 January 1985. It was during that period that the two offences on which the applicant was convicted, constituting charges 6 and 7, took place. AB also alleged that, during the same period, a number of other sexual interactions took place between himself and the applicant.

In 1985, the applicant commenced to teach at a different school. During that year she continued to maintain her friendship with AB and his family. It was during that period that it was alleged that the offences the subject of charges 8 to 14 (inclusive) took place. Specifically, they were alleged to have taken place at different locations in four separate incidents. The first three (constituting charges 8 to 13) were alleged to have occurred between 1 January 1985 and 15 July 1985, and the fourth (constituting charge 14) was alleged to have occurred on or around 27 July or 28 July 1985.

In 1986, the applicant told AB that she was in a relationship with another man. AB reacted badly to that communication, and as a result he consumed so much whisky that he became quite ill. In the following years, AB and the applicant did, however, continue to maintain their close relationship. They travelled to Queensland together in 1986, and to Tasmania in 1987. Ultimately, the relationship came to an end in the early 1990s, and the applicant did not see AB again until she attended his mother’s funeral in 1997. During the following 17 years, there was no further communication between them.

The first occasion on which AB told someone about his sexual relationship with the applicant was in January 2014. On that occasion, having consumed a lot of alcohol, and having effectively suffered a breakdown, he told his father about it. As a consequence, the police attended, and the matter was reported to them. Subsequently, the applicant was arrested and charged in January 2017.

Summary of relevant evidence

AB gave evidence as to the manner in which the applicant became friends with his family and himself in 1981. At that time, the applicant also became friends with one of AB’s friends (LC). At the end of 1983, the applicant and AB, together with LC and a friend of the applicant’s (DB), went away for a week to the Mornington Peninsula. AB said that during that period the applicant would tickle his arm, but that otherwise nothing sexual occurred between them.

AB stated that the incident the subject of charges 1 and 2 (on which the applicant was acquitted) occurred on 6 January 1984. On that occasion, the applicant drove AB to a movie theatre to see the film ‘Risky Business’. After they had watched the film, they returned to the applicant’s flat. It was a hot night, so they dragged a couple of mattresses into the main living room, where they intended to sleep. At that time the applicant was wearing a long T-shirt or nightie with a cartoon character on it, and she was wearing underwear. After they both went to sleep on their mattresses, AB got himself into a position where he could kiss the applicant, which he did. He said that he was the instigator of the incident that followed. He said that he removed the applicant’s knickers with his mouth, and performed oral sex on her, kissing her on the vagina (charge 2). Following that, they had sexual intercourse during which he ejaculated (charge 1). AB said that as a result of the incident, the applicant was visibly shaken and upset.

On the following morning, while the applicant was driving him home, AB asked her if they had made love, and she confirmed that they did. AB, in evidence, identified a piece of cardboard on which he had written in black texta ‘January 6/1984 was the happiest day of my life! Time approx 7 pm’.

AB stated that on the following day, or on the day after that, he visited the home of his friend LC. He said that when he left LC’s house, he rode his bicycle as fast as he could to go back to the applicant’s house, because he thought there would be the possibility of another sexual encounter there. After he arrived there, he could remember lying on the carpet in the lounge room, with his head up against one of the walls, while the applicant masturbated him, causing him to ejaculate. He remembered having his arms over his head and feeling embarrassed. That incident was the subject of charge 3 (on which the applicant was acquitted).

Some time after that incident, the applicant drove AB to Reservoir, but nothing occurred on that occasion. The applicant then left to go to Queensland. While she was absent, AB and the applicant wrote to each other. AB kept the correspondence that he had received from the applicant, and he provided it to the police.

In July 1984, AB travelled to Townsville with the applicant’s parents in order to visit the applicant. He said that during that time, he and the applicant engaged in some acts of mutual masturbation while they were staying in a beachside holiday resort.

After AB had returned to Melbourne, the applicant made a surprise visit there in October 1984. AB stated that during that visit, he went out with the applicant. On one occasion, the applicant was driving a vehicle that belonged to her friend (G). Only the applicant and AB were in the vehicle. AB said that on that occasion, he could recall being in the front seat with the applicant and they were kissing each other. He could also recall them engaging in mutual masturbation, but he said, ‘That’s about the extent of that recollection’. He could not recall seeing the applicant on any other occasion while she was in Melbourne during that visit in October 1984.

After the applicant returned to Queensland, they continued to exchange correspondence. The applicant then returned to Melbourne at the end of 1984. At that time AB’s parents had organised a trip to England. It was arranged that the applicant would live in their home, because AB was only 14 years of age. AB’s parents departed for England on 26 December 1984. While they were absent, AB stated that there were numerous instances of sexual intercourse between himself and the applicant, but he could not pinpoint any particular occasion. He could recall one specific occasion, when they were sitting in a hallway of the house, and they mutually masturbated each other. It was that evidence that constituted charges 6 and 7, on which the applicant was convicted.

AB identified four photographs in the book of exhibits, which he said would have been taken by the applicant while his parents were overseas in the period of December 1984 to January 1985. The photographs depicted AB wearing boxer shorts, but bare-chested. In three of them he was also wearing a hat and a necktie.

AB stated that in the following six months, between his parents returning home and the applicant moving into the home that she had purchased, there was further sexual activity between himself and the applicant. He said that on one occasion he and the applicant were ‘snuggling’ behind a sand dune in the Fairhaven/Lorne area. He did not believe that penetration occurred on that occasion, but he recalled kissing and mutual masturbation. That incident was the subject of charges 8 and 9 (on which the applicant was acquitted).

On another occasion, the applicant and AB drove to the Silvan Reservoir area, where they found a secluded location behind some rocks, and they engaged in the same conduct, kissing and mutual masturbation. That incident was the subject of charges 10 and 11 (on which the applicant was acquitted). On another occasion, AB could recall being alongside the Yarra River in the Hawthorn area behind a wooden shed on some grass. He said that there was ‘again the same thing, kissing and mutual masturbation’. That incident was the subject of charges 12 and 13 (on which the applicant was acquitted).

In July 1985, the applicant settled the purchase of her home. AB said that he frequently visited that house. He said that his father assisted the applicant with work on the house after she had moved into it.

AB was a member of a sporting association. On one occasion, in 1985, he went to a sporting event with his father. The applicant also attended the event, which took place near the Yarra River. AB said that on that occasion, he could recall sitting in the back of his father’s car in his sports gear with the applicant, and the applicant masturbating him. It was that incident that was the subject of charge 14 (on which the applicant was also acquitted).

AB gave evidence that his relationship with the applicant continued through 1985 until early 1986. At a school fete he learned that the applicant had a boyfriend. As a result he was devastated, drank a bottle of whisky, and became quite ill. He said subsequently they resumed their relationship. At one stage the applicant, who suffered endometriosis, became ill and was not interested in, and could not have, sex. He said that in 1990, he started to study for his pilot licence. At that time he went away to Darwin, and his relationship with the applicant effectively ended.

AB stated that he first told someone about his sexual interaction with the applicant in January 2014. On that night, he had consumed a lot of alcohol and was very angry about a lot of things. He said he was ‘effectively just having a breakdown’. AB told his father about his relationship with the applicant. As a result AB called the police, who attended.

AB was cross-examined in some detail. For the purpose of addressing the proposed ground of appeal, it is only necessary to summarise some aspects of that cross-examination.

In respect of the incident that was the subject of charges 1 and 2 (‘the Risky Business’ incident), AB denied that after the movie, the applicant went home to her parents’ house, as she had moved out of her flat by then, and he was dropped home. He denied that his evidence, as to removing the applicant’s knickers with his teeth, was a fantasy. He said that he had engaged in that conduct with a neighbour when he was five or six years of age. AB agreed that, in his statement, he said that by the time they had returned to the applicant’s flat after viewing the movies, it was already dark. He agreed that at that time of the year (being daylight saving time) it did not become dark until 8.30 pm or 9 pm. Thus, it was put to him that the cardboard document — on which he had written that 6 January at 7 pm was the happiest day of his life — referred to his viewing of the movie. AB rejected that suggestion.

AB also accepted that in the first two drafts of his statement, he did not make any reference to having sexual intercourse with the applicant on that first occasion. When asked, in cross-examination, whether he remembered having penis-vagina sex with the applicant, he said: ‘I haven’t got a mental image in my head, like some things I have about.’

When cross-examined about the incident the subject of charge 3, AB said he had no recollection as to how he ended up lying on the floor with his head against the wall. He could not recall who instigated the sexual interaction on that occasion.

In respect of charges 4 and 5 (concerning the incident that was alleged to have occurred in G’s vehicle), he agreed that, because he said it occurred in the front seat of the vehicle, it would have been awkward for mutual masturbation to have taken place. He also agreed that, in the first and second drafts of his statement, he did not refer to mutual masturbation, but said, ‘I know that we definitely kissed but I don’t remember if there was anything else going on’. He agreed that it was not until six months later that he made a further statement in which he said that mutual masturbation occurred in the car.

AB said that, while the applicant stayed in his parents’ home between December 1984 and 30 January 1985, he only had one specific recollection, which was of mutual masturbation in the hallway floor. He remembered that during that period some friends of the applicant stayed at the house, and he remembered taking trips to Lorne and to the Fairfield Boathouse. He said that the applicant took photographs of him during that period, including the four photographs that were numbered 83–86 in the book of exhibits.

In respect of the incidents the subject of charges 8 to 13, AB agreed that he had no recollection of the details of each particular incident, other than those that he described in his evidence-in-chief. In respect of the incident that was the subject of charge 14 (the ‘sports incident’), he agreed that there would have been a lot of people around, coming and going from the car park, at the time. He did not know where his father was when the sexual contact took place, and he said that his father could ‘possibly’ have come back to the vehicle at any time. He said that he ejaculated, but he could not remember how he was cleaned up after it. He also agreed that the incident, that was alleged to have been the subject of charges 12 and 13 (the ‘Yarra incident’), took place on a park bench in a public area in broad daylight.

AB’s father was 94 years of age at the time of the trial. He gave evidence confirming the circumstances in which the applicant became friendly with his family. He said that he thought that the applicant was helping AB with his homework, and he confirmed that she was friendly with AB. In respect of charge 14, he confirmed that the applicant did attend sports meetings in which AB participated. However, he was unable to recall the applicant attending any such meeting near the Yarra River. In cross-examination, he confirmed that the only meetings that he could recall the applicant attending were in outer Melbourne.

DB first met the applicant at teachers’ college in 1978. At that time they became close friends. In respect of charges 1 and 2, she could not recall attending the film ‘Risky Business’, but she did remember going to the movies with the applicant during the time when they were friends. In cross-examination, she agreed that she and the applicant went on a trip to the coast with AB and LC, and that she did not observe anything untoward about the relationship that the applicant had with either of those boys. She said that the applicant was a prolific letter writer, and that she was given to composing long letters to her friends. She also confirmed that the applicant was a dedicated teacher, and that it was the applicant’s practice to visit her students out of hours in their homes.

LC became a close friend of AB when they were both in grade 5. He recalled accompanying AB and the applicant on non-school activities outside school hours, such as attending the Melbourne Show. He also recalled a holiday that he and AB had with the applicant and her friend DB in December 1983. He was unable to recall attending the film ‘Risky Business’ with the applicant and AB. In cross-examination, he said that he had a good friendship with the applicant, that she encouraged him in his work, and that she gave him advice and support. The applicant visited his family home on a number of occasions. He did not notice anything suspicious about the relationship between the applicant and AB.

The informant, Detective Senior Constable Christopher Foster, gave evidence on a number of matters. He confirmed that AB first contacted him on 8 January 2014. Detective Foster took a note of that phone call, which was as follows: ‘Movies, stayed at her place, hot night, drag mattresses out to lounge, slept next to each other, shit happened, ended up having sex’. As a result of that telephone conversation, AB attended the police station on a number of occasions over the ensuing months. During that period Detective Foster took a statement from him. The statement went through some drafts. Detective Foster said that the draft statements did not contain a reference to sexual penetration in respect of the incident that ended up being the subject of charges 1 and 2. At that time, he said, there was a statutory period of limitation of 12 months in respect of the offence of sexual penetration involving a person over the age of 12 years and under the age of 16 years.

That aspect of Detective Foster’s evidence was the subject of a strong challenge in cross-examination. In the course of that cross-examination, Detective Foster agreed that he would include in a statement any allegation of any sexual contact that a complainant said happened between AB and an accused. He again said that the first and second drafts of the statement made by AB did not contain any allegation of sexual penetration on the first incident that was the subject of charges 1 and 2, because such an allegation could not then be the subject of a charge. However, he agreed that he had included in AB’s first statement a number of irrelevant details, including the names of each of his teachers from the preparatory grade up to and including grade 6, at MS Primary School. He also agreed that the first draft of the statement was very detailed.

Detective Foster was unable to recall a specific conversation in which he explained to AB that he would not include the allegation of sexual penetration, because it was not relevant. He did not make any note of that conversation. He also agreed that any allegation of sexual contact, including sexual penetration, could be the basis of a charge of indecent assault, or gross indecency. He also agreed that he included in the statement sexual activity between AB and the applicant that had taken place in northern Queensland at Mission Beach when AB visited the applicant in July 1984, notwithstanding that that conduct by the applicant could not be the subject of any charge in Victoria.

Detective Foster agreed that he met with AB on eight occasions over an eight-month period before the final draft of the statement was completed. Detective Foster also agreed that there was no mention, in the first two drafts of the statement, of the incidents that AB alleged occurred at Fairhaven, Silvan Dam and the Yarra Boulevard (that were the subject of charges 8 to 13). He said that if AB had mentioned any of those incidents before the third draft was compiled, they would have been included in the first or second drafts of the statement. He agreed that there were three drafts of the statement before the final statement was completed, and that each of those drafts had been provided to AB over the course of the eight months in which he spoke with AB.

The applicant gave evidence at the trial, and was subjected to lengthy cross-examination. She said that when she taught at MS Primary School between 1981 and 1983, there was a strong ethos of pastoral care at the school. As part of that, she organised social functions for the families of the children in her class, and she visited the students in their homes. It was as a part of that pastoral care that she visited AB’s family in their home, and she developed a friendship with them. When AB and his parents went overseas, she gave him special tuition at home in order that he not get behind on his schoolwork. As a result, she developed a friendship with AB’s parents.

The applicant said that during that time AB’s father asked her to take him ‘under her wing’. His two sisters were substantially older than he, and his mother was dysfunctional. In response to that request, the applicant became more involved in AB’s life. She said that at that time she also became friendly with LC and his family, and that her friend DB and she took LC and AB to the Melbourne Show. She said that when she moved into her flat, LC, his parents and other students would visit her there. At the end of 1983, AB stayed at the flat at the request of his parents, because they were carrying out renovations at their home. In respect of the letters that she wrote to AB, the applicant said that she used terms of endearment (such as ‘sweetie’, ‘precious’ and ‘honey bunch’) because her parents always used such expressions, and that she and her family were accustomed to using them.

The applicant then gave evidence in response to the charges. She said that she saw the movie ‘Risky Business’ in company with DB and AB in early January 1984. After the movie, she went home to her parents’ house, and DB drove AB home. She said that she and AB did not return to her flat. She had already moved out of that flat preparatory to moving to Queensland. She denied the allegations that were the subject of charges 1 and 2. She said that on the next day her parents had a barbeque, and a number of people attended, including AB and his family. She denied that on that day AB rode his bike to her flat and that sexual contact occurred as was alleged in charge 3.

The applicant said that after she commenced her role as a governess at a sheep station in 1984, she developed a relationship with another man. She could not recall why she said in one of her letters to AB, ‘But there’s nothing serious going on. You can count on that’.

When asked about a letter dated 13 August 1984, in which she said to AB, ‘I really did love, you long before you loved me …’, the applicant said that she really did love AB. She said that she had formed a strong bond with him which had evolved over time. It had commenced as a teacher-student relationship. In due course, they became really good friends, in which she assumed a maternal role because his mother was dysfunctional. She said that in August 1984 she believed that she loved AB, and she felt that he was like a boyfriend. However, she denied that she had a sexual relationship with him. She said that she missed AB very much while she was in Queensland. She said that in her letters to AB she included a lot of ‘kisses and hugs’, because her mother always put kisses and hugs on her letters and cards. However, when they met she would just give AB a kiss on the cheek and a quick hug.

The applicant said that when her parents came to visit her in North Queensland in July 1984, AB came with them. She said that she and AB did not share a room in Queensland, and indeed her parents would not have permitted it. She denied that there was any sexual contact between herself and AB during that visit. She was asked about a letter that she wrote to AB dated 18 July 1984, in which she said: ‘When we were away and we were mucking around one night I said: Would you marry me if you were my age? And without any stalling you said … “I wouldn’t hesitate”’. She said that she would have meant that at that time, because she was ‘in that headspace’. She said that she was lonely, and that AB had all the qualities that she would like in someone as a partner. However, she denied having any sexual contact with him during the holiday.

The applicant said that she returned to Melbourne in October 1984 because she had applied for a job at a college the following year. She had not told anyone that she was returning. After arriving at the airport, she went to AB’s house, and his father drove her to the home of her friend, G. She was in Melbourne for two weeks. In respect of charges 4 and 5, she denied borrowing G’s car. She said that G had a large car, that she was very pedantic about who she lent her car to, and that she herself would not have asked to drive it, because she did not like driving large motor vehicles. She recalled being in G’s car during that period, but she said that G would have been driving it. She denied having the sexual contact with AB alleged in charges 4 and 5.

The applicant said that in the ensuing period there was discussion about AB staying with her while his parents went overseas at Christmas. Ultimately, it was arranged that she would stay at his parents’ home at their request. She said that during that period she slept in AB’s parents’ bedroom, and he slept in his own bedroom. She denied that there was any sexual contact between them, and she denied the incident that was the subject of charges 6 and 7. She said that during that period some friends stayed at the house for a week, and that she and AB and others went on a number of trips, such as to the Fairfield Boathouse and Lorne.

In the following year, 1985, the applicant commenced her new employment. She continued her relationship with AB, but she did not see him as often. When she moved into her new home in July 1985, AB and his father painted it and mowed the lawns. She said that she had never been to Fairhaven with AB, and she denied the incident that was the subject of charges 8 and 9. She also denied visiting Silvan Dam with AB, and she denied the incident the subject of charges 10 and 11. Similarly, she denied the allegations concerning the incident at the Yarra River in Hawthorn behind a shed, that was the subject of charges 12 and 13.

The applicant said that she attended sporting events in which AB participated. However, most of them were in outer Melbourne. She went to them because she wanted to support AB. AB’s father drove him to the events, and she attended in her own vehicle. She said she did attend an event near the Yarra River but she denied AB’s allegations in respect of charge 14.

The applicant was cross-examined at considerable length by the prosecutor, with special focus on the lengthy and voluminous correspondence that she sent to AB during and shortly after the period in which she had lived in northern Queensland. In respect of that correspondence, she said that AB was then the most important person in her life, that she was in love with him and thought of him as a boyfriend, but she did not have a sexual relationship with him. She said that at one stage she could have waited for AB to grow up in order to marry him.

In respect of the specific incident that was the subject of the charges 1 and 2, the applicant said that when she attended the ‘Risky Business’ film with AB and DB, she no longer had access to her flat. She had returned the keys to the flat and was living at her parents’ house. She said that DB did drive AB home on that evening, notwithstanding that DB did not recall doing so. His home was en route to DB’s home. She specifically denied the allegations in charges 1 and 2. She also denied the allegation comprising charge 3.

The applicant said that when AB visited her with her parents in North Queensland in mid-1984, they did not stay in the same room. She said in fact her parents would not have allowed it. In her letters to AB between January and June 1984, she had told him that she would collect on all the kisses and cuddles when he got to Townsville. However, that meant that when he came to Queensland she would give him a peck on the cheek and a hug.

In respect of the incident the subject of charges 4 and 5, the applicant denied having ever driven G’s car. She said that on one occasion when G was driving, she and AB were in the vehicle, and G attended a milk bar. However, nothing untoward occurred between them on that occasion.

The applicant said that when she stayed with AB at his parents’ home between 26 December 1984 and 30 January 1985, she did not take the photographs of AB that were tendered in evidence. She said that during that period other people stayed at the house for one week, and they also went out to various places. She denied there was any sexual contact with AB during that period (denying charges 6 and 7). She again denied taking AB to Fairhaven and to Silvan Dam, and she denied the allegations that were the subject of charges 8 to 14.

G gave evidence on behalf of the applicant. She first met the applicant in 1981, when she commenced teaching at MS Primary School as a graduate teacher. She confirmed that there was a very strong pastoral care ethos at MS Primary School, and that, as part of it, the teachers visited the homes of the students who they taught.

In relation to charges 4 and 5, G could not recall the applicant returning to Melbourne from Queensland for a visit in October 1984. She could not remember lending her vehicle to the applicant, or the applicant being in her vehicle with AB, at that time. She said that she could have lent her car to the applicant, because she was a friend, but she added, ‘But I couldn’t imagine her driving it ‘cause we always had Statesmans which were quite big’. She was unable to recall driving AB and the applicant home after they had been together. She said that at all times the applicant and AB acted normally together, and she did not notice anything untoward about their relationship.

K, a cousin of the applicant, and J, a longstanding friend of the applicant, also gave evidence as to her good reputation and character. J also stated that the applicant would always sign letters and cards addressed to her with a series of hugs and kisses. She recalled meeting AB at a farewell barbeque at the applicant’s home, which AB attended with his family. She said that the applicant would talk about AB’s father in particular.

Conviction ground 1 — inconsistency of verdicts: submissions

In support of the inconsistency ground, counsel for the applicant accepted that the evidence in respect of each incident was different, with differing aspects of corroboration. Accordingly, the task of the jury was not a uniform one, so that satisfaction beyond reasonable doubt in respect of one incident did not necessarily mean the same for each other incident. However, it was submitted that, when the evidence in respect of each incident was examined, there was no particular distinction in respect of the strength or weight of the evidence for each of them.

Although there was corroboration for the fourth incident (comprising charges 6 and 7), equally, it was submitted, there was corroboration for the first five charges. Similarly, while in her evidence the applicant conceded that there was the opportunity for the incident, that was the subject of charges 6 and 7 to occur, equally she made the same concession in respect of the incidents that were the subject of charges 4, 5, 8, 9 and 12.

Ultimately, it was submitted, the strength of the prosecution case on each charge depended upon the credibility of the evidence of AB that he and the applicant had a sexual relationship during the period in question, and indeed continuing until he was 21 years of age. In particular, his evidence was of a continuing and ongoing sexual relationship, and the incidents in respect of which he gave specific evidence were those of which he had a particular recollection. In that context, it was contended, it was not rational for the jury not to have had a reasonable doubt about the incident that was the subject of charges 6 and 7, but to have entertained a reasonable doubt about each of the other incidents.

In support of those submissions, counsel referred to the evidence that was relied on by the prosecutor in respect of each of the incidents in question. In respect of the first incident, the subject of charges 1 and 2, it was noted that AB’s account was supported by the notation on the texta packet that 6 January 1984 was the happiest day of his life. It was also supported by a letter written by the applicant to AB dated 5 February 1984 in which she referred to the ‘Risky Business’ movie, and said that it was a great night, and that she did not regret going to see it. Counsel relied on the evidence of DB that she could not recall going to see the movie with AB and the applicant, and did not remember driving AB home.

In respect of the second incident, the subject of charge 3, counsel submitted that there was some support for the evidence of AB, contained in a letter written by the applicant to AB dated 15 January 1984 (in which she stated that her hand was ‘a bit sore’) and to a letter that she wrote to AB dated 23 May 1984, in which she reminisced about the great times that they had had together during their holiday, including AB ‘riding around to my place on your bike’.

Counsel for the applicant further noted that the prosecution had relied, in support of the incident that was the subject of charges 4 and 5, on a letter written by the applicant to AB dated 29 October 1984, in which she said that she had told G why AB had been upset about her going back to Queensland. The applicant had further noted ‘[u]nderstanding — yes … suspicious — not a bit. So you can breathe a sigh of relief now’.[2] In a letter dated 31 October 1984, the applicant also stated: ‘I hate thinking about what you said that night in [G’s] car…’. Reliance was also placed on the evidence of G, that although she could not recall being in her car with the applicant and AB, it was possible she could have taken them out or brought them home as they were close friends.
[2]Emphasis in original.

Counsel accepted that the incident the subject of charges 6 and 7 was corroborated, to some extent, by a letter written by the applicant dated 23 February 1985, and by the four photographs of AB at his home in 1984, which AB said were taken by the applicant. However, he submitted that that level of corroboration rose no higher than the degree of corroboration that the prosecution had for the incidents that were the subject of charges 1 to 5. Further, although the applicant conceded that there was the opportunity for the incident that was the subject of charges 6 to 7, the applicant made the same concession in respect of the incidents that were the subject of charges 4, 5, 8, 9, 12 and 13.

In response, counsel for the respondent submitted that there were a number of reasons why the jury’s decision to convict the applicant, on charges 6 and 7, was not inconsistent with its decision to acquit her on each of the other charges. First, the applicant admitted that she stayed alone with AB at his home for a five-week period that was relevant to charges 6 and 7. She made no other concession in relation to the other charges. In particular, in respect of charges 1 to 3, she said that she had already returned the keys to her flat and had moved to her parents’ house at that time. The applicant made no concession to being alone with AB in G’s vehicle, except for a short stop outside a milk bar, which would have been insufficient for the incident that was the subject of charges 4 to 5 to have occurred. The applicant denied attending the locations of the incidents that were the subject of charges 8 to 13. Although she admitted attending the sporting event where charge 14 was alleged to have occurred, she denied being in the vehicle alone with the applicant.

Secondly, it was submitted, the quality of AB’s account in respect of charges 6 and 7 was superior to his account of the other incidents. He did not have a mental picture of the incident that was the subject of charges 1 and 2. He agreed that in the first two drafts of his statement, he made no reference to sexual contact in describing the incident that was the subject of charges 4 and 5 in G’s vehicle. His description of each of the incidents the subject of charges 8 to 14 was brief and limited.

Thirdly, counsel for the respondent submitted that the applicant, in cross-examination, accepted that by December 1984 she was in love with AB. During and after his visit to Queensland in mid-1984, their relationship had evolved and she felt that AB was her boyfriend. Fourthly, and connected with that, AB and the applicant made plans to orchestrate the situation where the applicant would ‘babysit’ AB in his parents’ absence between Christmas 1984 and late January 1985. Fifthly, the evidence of AB, as to the incident that was the subject of charges 6 and 7, was supported by photographs which were sexually suggestive and evidence of their relationship at that time. Sixthly, it was submitted that the letters, sent by the applicant to AB following the period in which charges 6 and 7 occurred, invited an inference that their relationship had been intimate during the time that AB’s parents had been overseas. Seventhly, it was submitted that there was corroboration for the incident that was the subject of charges 6 and 7. The applicant accepted that she stayed alone with AB during the time. The letters and the photographs supported AB’s evidence.

In those circumstances, it was submitted, the verdicts of the jury did not offend the tests of logic and common sense, but rather they were susceptible of a rational explanation.

Inconsistency of verdicts — legal principles

The principles relating to inconsistency of verdicts have been discussed in a number of authorities, including the decisions of the High Court in MacKenzie v The Queen[3] and MFA v The Queen.[4]
[3](1996) 190 CLR 348 (‘MacKenzie’).
[4](2002) 213 CLR 606 (‘MFA’).

Where the inconsistency is said to be based on jury verdicts on different counts, the test is essentially one of logic and reasonableness. The applicant must demonstrate that no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the conclusion reflected in the verdicts.[5]
[5]MacKenzie (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ) quoting R v Stone (Unreported, England and Wales Court of Criminal Appeal, Devlin J, 13 December 1954).

In determining that question, it must be borne in mind that, where the accused is indicted on a number of separate charges, the jury is ordinarily directed that it must give separate consideration to each charge. In this State, that direction is regularly accompanied by a specific direction that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection, or non-acceptance, of a particular aspect of a witness’ evidence, does not necessarily mean that the jury must accept or reject the whole of that witness’ evidence.[6] Directions to that effect were given to the jury in the present case.
[6]MFA (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ); Tyrrell v The Queen [2019] VSCA 52, [75] (Kaye, Niall and Weinberg JJA).

Further, in considering whether the jury’s verdicts are inconsistent in the sense described above, it is necessary to keep in mind that, in a criminal trial, particular emphasis is placed on the onus of proof borne by the prosecution, so that an acquittal on a charge on the indictment does not necessitate the conclusion that the jury found the relevant witness’ evidence, on that charge, to be unsatisfactory, unreliable or untruthful. In MFA, Gleeson CJ, Hayne and Callinan JJ stated:

A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. ... factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.[7]

[7]MFA (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ).

In addition, it has been recognised that, in a case in which an accused faces a number of charges, a jury may take a merciful view of the facts on a count or some particular counts. As observed by Gleeson CJ, Hayne and Callinan JJ in MFA, ‘it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only’.[8]
[8]Ibid.

In MFA, and in MacKenzie, the High Court approved the following observations by King CJ in R v Kirkman to the same effect:

Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.[9]

[9]R v Kirkman (1987) 44 SASR 591, 593; MacKenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); MFA (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ), 631 [85] (McHugh, Gummow and Kirby JJ).

As a corollary of those considerations, an appellant who relies on inconsistency of verdicts as a ground of appeal, or as an aspect of a ground of appeal, bears a high onus of persuasion.[10] In essence, taking into account the matters to which we have referred, in order to make out the ground of inconsistency, the appellant must demonstrate that the different verdicts returned by the jury represent ‘an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[11]
[10]Inia v The Queen [2017] VSCA 49, [74]; Pillay v The Queen (2014) 43 VR 327, 331 [26].
[11]MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ).

Analysis and conclusion

In applying those principles, it is evident that on an analysis of the evidence in the case, the verdicts of the jury, convicting the applicant on charges 6 and 7 and acquitting her of the other twelve charges, were neither illogical nor unreasonable. On the contrary, we consider that it can be properly discerned, on the facts of the case, that there were important distinctions between the evidence on charges 6 and 7 on the one hand, and the evidence on the other charges, which would provide an appropriate explanation for the verdicts reached by the jury.

As a starting point, the evidence adduced in respect of charges 6 and 7 was not solely dependent on the testimony of AB, or an assessment of his credibility and reliability. As counsel for the respondent has pointed out, the applicant in her evidence admitted that she stayed alone with AB at his parents’ home for most of the five week period between 26 December 1984 and 30 January 1985. That was the period in which the incident that was the basis of those charges was alleged to have occurred. On the other hand, the applicant did not make any similar concession in respect of the circumstances in which the incidents the subject of the other charges were alleged to have taken place.

Relevantly, the context in which the applicant stayed at AB’s parents’ home, during that period, was particularly significant in an assessment of the evidence of AB and the applicant in respect of the incident the subject of charges 6 and 7. At that time, on any view of the evidence, the applicant could not have been described merely as a friend of the family of AB. Rather, the evidence, consisting of the voluminous correspondence that had passed between the applicant and AB in the period leading up to that time, and indeed the applicant’s own testimony, made it clear that by the time that the applicant came to stay at AB’s parents’ home, she felt strongly in love with him and regarded him as her beloved boyfriend. It seems equally clear that during that period of time AB reciprocated those feelings. It was in that context that the jury assessed the evidence of AB, as to the sexual relationship he said he had with the applicant during that period of time.

It is not necessary to rehearse in detail the contents of all of the correspondence that passed between the parties in the period leading up to Christmas 1984. However, a brief excursion into that correspondence plainly demonstrates the point.

On 23 May 1984, the applicant commenced a letter to AB with the sentence ‘God, I miss you. I’m crying at the moment — bawling actually’. One week later, on 30 May, she referred to the forthcoming visit by AB to northern Queensland, stating that she could not wait to see him. She said: ‘Be prepared for a few (or more than a few) late nights — you and I will be in a room of our own, so we’ll be able to go out, do what we want and come home when we want … ‘. After AB had subsequently left Queensland and returned to Melbourne, the applicant wrote a letter to him stating that when she went past a particular motel in Townsville, it ‘brought back memories of what seemed like a dream’.

Then nine days later, she wrote another letter to AB. In the second paragraph, she asked that the letter be hidden under a bottom drawer so that others could not find it. She then proceeded to discuss the relationship. On the first page of the letter, she said ‘I love you honey’. A few lines later, she said: ‘And you’re probably thinking how could a 24 year old girl love me more than someone of her own age. I’m sorry to stuff up your thoughts, but just face it, it’s true’. On the next page, she said that she knew that AB would never hurt her or do anything to let her down. She said that she had had five nights of ‘tossing and turning thinking of you’, and that she counted the days until she came home (to Melbourne). In the next paragraph, she said that AB was the only reason she wanted to come back. Two sentences further on she said: ‘I love you, [AB]. I want you [AB]. I need you [AB]. Why can’t you be here? (Don’t laugh. I’m not)’. She then said ‘[a]ll my life I’ve wanted someone like you — and you came along and I still can’t have you’. In the next paragraph she wrote the following:

When we were away and we were mucking around one night I said: Would you marry me if you were my age? And without any stalling you said … “I wouldn’t hesitate”. God, I wouldn’t either. You mean so much to me.

After two more pages in the same vein, she again asked AB to keep the letter well hidden.

Subsequently, on 13 August 1984, the applicant wrote another letter to AB stating ‘[Y]ou see I really did love you, long before you loved me, I loved you when I first saw you in my class and don’t worry it killed me to lose you (really killed me) at the end of Grade 5 … ‘.[12] She said that it was her intention to keep seeing AB after he had left MS Primary School.
[12]Emphasis in original.

On 13 September, the applicant wrote another letter referring to their holiday in Cairns, and stating that she had been reliving it. She said:

But it was Paradise, sweetie. I think to myself a lot about how I could love a fourteen-year-old boy so much. In reality, we both know it’s not normal … but let’s face it, it is real and there’s no changing that. … I know in my heart that this love is far stronger than just the love of friends. We’ve proved that on more than one occasion.[13]

[13]Emphasis in original.

In a significant letter dated 29 October 1984, the applicant discussed their plans for the coming Christmas period. She said that she knew that his parents would never let him stay at his place on his own, and that she was ‘still trying to think of a way that I can arrange for you to stay with me … I know your parents would let me stay at your place, but how do I ask them that? It may sound suspicious. Whatever — we’ll work something out’. Two days later, in a letter dated 31 October, she said that she would ‘loathe’ the girl that AB would marry, and that she was frustrated and hurt, because she knew she could never have him all to herself.

In a handwritten letter dated 1 November (one day later), the applicant wrote that she ‘[c]an’t wait to see you again … and again and again and again and again’. She told AB that he had ‘better start doing some warm-up exercises to get your muscles toned up for next year’. Using capital letters, she said that she really and truly loved AB and was missing him ‘heaps and heaps’. Finally, in a letter dated 23 November (a few days before she returned to Melbourne), the applicant wrote a letter to AB enclosing an article from a women’s magazine entitled ‘In Praise of Younger Men’, which referred to the fact that many mature women were happily settling down with men who were much younger than themselves.

As we have already noted, that correspondence was the subject of quite extensive cross-examination of the applicant by the prosecutor. In the course of that cross-examination, the applicant said that she loved AB and was ‘in love’ with him. She said that AB ‘meant the world to me’, that he was one of the most important people in her life, and that he was the one person she was in love with. She also described AB as the centre of her life.

Thus, in analysing the evidence of the applicant and AB relating to the alleged incident the subject of charges 6 and 7, the jury were not working in a vacuum. Rather, they were considering the situation of an adolescent boy living in his parents’ home alone with the applicant, who had so openly and freely professed her intense romantic love for him in the months leading up to that period. The letters we have summarised portray an escalating level of the applicant’s emotions each time that she wrote to AB during those months.

Further, there were two additional pieces of evidence which relevantly provided some level of corroboration for the account given by AB that during that period there was sexual interaction between himself and the applicant.

First, of course, were the four photographs taken of AB. The background to the photographs established that they were in fact taken in his home. That background also displayed a calendar which, on close scrutiny, revealed that the photographs were taken in 1984. On the evidence, the only person who would have taken those photographs of AB, in the condition in which he was depicted, was the applicant. On her evidence, and on the evidence of the letters to which we have referred, she felt powerful emotions about him, and she regarded him as if he was her boyfriend. There was no suggestion that any other person could have or would have taken the photographs. In that respect, the jury were entitled to prefer the evidence of AB over that of the applicant and accept that it was the applicant who took the photographs. The content of the photographs is mildly sexually suggestive. They are consistent with the existence of a sexual undercurrent to the relationship between AB and the person who took the photographs.

Secondly, after the conclusion of the applicant’s stay at AB’s parents’ home, she wrote to AB saying how much she missed him. She said that ‘the other day’ she had taken photographs of him out of her school desk. She then said:

The five weeks I spent with you were really great, [AB]. I try not to think about them too much. I don’t ponder over them a lot — not because I don’t want to, but because I know if I thought about them too much I’d be wishing all the time that you’d come back … I keep them in my mind and heart as a treasured memory … I really do miss you though. I find it really hard being away from you. You are constantly in my thoughts … I only feel like half a person when you’re not around — because the other [half] of me is always thinking about you … I guess that’s love![14]

[14]Emphasis in original.

Taken together, the context of the applicant’s visit to AB’s home in the Christmas/New Year period of 1984/1985, the length of her stay there, her express feelings of powerful love for him as if he was her boyfriend, the photographs and the letter to which we have just referred provided cogent support to the evidence of AB that there was a sexual relationship between himself and the applicant during that period.

By contrast, none of the charges on which the applicant was acquitted were supported by evidence which could be regarded as being comparable in strength to the evidence which supported the prosecution case on charges 6 and 7.

Counsel for the applicant submitted that the evidence of AB on charges 1 and 2 was corroborated by the evidence that the Risky Business movie was released in Australia on 6 January 1984, and that meteorological records confirmed that 6 January was a hot night. Further, the applicant gave evidence that she did see ‘Risky Business’ in company with AB.

On the other hand, there were at least four difficulties with AB’s evidence on those charges. First, the applicant gave evidence that, by that time, she no longer had access to the flat. Her evidence to that effect was plausible, because she was due to depart to Queensland in the near future. The first letter that she wrote to AB during that period, dated 15 January 1984, appears to have been written from Queensland. It is therefore plausible that, by the time she and AB saw the movie ‘Risky Business’, she had returned to living with her parents. Secondly, as elicited in cross-examination, AB recorded on the texta card on 6 January at 7.00 pm that that day was the happiest day of his life. However, he said in his evidence that he and the applicant did not return to her flat after the movies until after dark which, at that time of the year, must have been at least as late as 8.30 pm.

Thirdly, AB alleged that sexual penetration occurred in the incident (as alleged in charge 1). However, the first two drafts of his police statement did not contain that allegation. Detective Foster’s explanation for that omission was subject to effective challenge in cross-examination, and it was open to the jury not to accept that explanation. In those circumstances, there was a significant inconsistency between the first two draft statements of AB and his evidence in respect of the incident that was the subject of charges 1 and 2. Fourthly, and allied to that, in cross-examination, when asked if he remembered having ‘penis vagina sex’ on that occasion, he responded that he did not have a ‘mental image’ of having done so.

AB stated that the next incident — that was the subject of charge 3 — also took place at the applicant’s flat. However, again, the applicant’s evidence, that she no longer resided in the flat at that time, was plausible. Further, AB had little recollection of how the sexual contact between himself and the applicant on that occasion was initiated. Each of those matters separately, and taken together, sufficiently explain why the jury may have had a reasonable doubt about that charge.

There was some independent support for AB’s evidence concerning the incident the subject of charges 4 and 5. First, that incident took place during the period in which the applicant’s emotional feelings towards AB were clearly escalating. Secondly, after she returned to Queensland, the applicant, in her letters made two references to ‘[G]’, including that she hated thinking about what AB had said ‘that night in [G’s] car … ‘.

On the other hand, a number of factors tended against acceptance of AB’s account of that incident. In the first and second drafts of his statement to the police, in describing that incident AB said: ‘I know we definitely kissed, but I don’t remember whether there was anything else going on’. It was not until six months later that he made a further statement, in which he alleged the conduct that was encompassed by charges 4 and 5. Further, the applicant’s evidence, that she would not have asked to drive G’s vehicle because it was so large, was supported by evidence to the same effect by G. The reference in the letter dated 31 October to being with AB in G’s vehicle did not necessarily suggest that they were there alone, or that the applicant was driving it. Finally, in cross-examination, AB conceded that it would have been awkward for him and the applicant to have engaged in the act of mutual masturbation while in the front seat of the vehicle. Taken together, those matters do, in our view, provide a reasonable explanation for the jury’s verdicts acquitting the applicant on charges 4 and 5.

It is accepted by counsel for the applicant that there was no independent evidence that supported the account given by AB in respect of the incidents that were the subject of charges 8 to 13. The three incidents the subject of those charges — alleged to have occurred at Fairhaven, Silvan Dam and the Yarra River, Hawthorn respectively — were not mentioned in the first two drafts of the statement taken from AB by Detective Foster. In cross-examination, Detective Foster stated that if AB had told him about those incidents, they would have been included in those drafts. Further, in cross-examination, AB stated that each of those incidents might have occurred later in 1985 or in early 1986 Thus, those incidents might have taken place outside the period that was charged in the indictment. In addition, in cross-examination, AB accepted that the incident which he said had occurred at the Yarra River in Hawthorn (the subject of charges 12 and 13) took place on a park bench in a public area in broad daylight.

Based on those matters, and given the lack of any independent support for AB’s evidence, it is readily understandable that the jury was not prepared to be satisfied beyond reasonable doubt of his evidence in respect of the three incidents that formed the subject of charges 8 to 13.

Finally, there were difficulties with the prosecution case in support of the incident the subject of charge 14. AB gave evidence that the incident occurred on a day in which he participated in a sporting event near the Yarra River. However, there was a degree of improbability about AB’s account. In cross-examination, he said that it had occurred in a public car park at a public event in daylight. He agreed that there would have been a lot of people coming to and going from the car park, and that his father could have come back to the car at any time. Those factors explain why the jury might not have been satisfied beyond reasonable doubt of the evidence of AB on charge 14.

Based on the foregoing analysis, it is evident, first, that there was a reasonably strong body of support for the evidence of AB on charges 6 and 7. On the other hand, the evidentiary support for the allegations contained in charges 1, 2, 4, 5 and 14 was of less strength, and there was no independent support for the evidence of AB in respect of the incidents that were the subject of charge 3, and charges 8 to 13. In addition, as we have discussed, there were particular difficulties with the evidence of AB in respect of the charges on which the applicant was acquitted. The lesser degree, or the lack, of independent support for those charges, and the contradictions and difficulties in the evidence of AB in respect of them, provide a logical and reasonable explanation for the differential verdicts.

In support of ground 1, counsel for the applicant submitted that the principal issue at the trial concerned the credibility and truthfulness of AB as a witness. His evidence was that each of the offences formed part of an ongoing sexual relationship with the applicant during the relevant period. It was submitted that the acquittals on 12 of the 14 charges meant that the jury were not satisfied that AB was a truthful and credible witness on those charges and — because he maintained that those offences were part of a continuing sexual relationship — it followed that the jury could not have reasonably been satisfied, beyond reasonable doubt, of the guilt of the applicant on charges 6 and 7.

If, as the applicant submits, the verdicts of acquittal could only be explained on the basis that the jury considered AB to have been untruthful, it would be difficult to explain the guilty verdicts on charges 6 and 7. That is, if the jury regarded his evidence on all of the other charges as a contrivance or a fabrication, then it would be hard to understand a conclusion that, in relation to one of the incidents, he was telling the truth.

That is not, however, the only explanation for an acquittal. As both of the joint judgments in MFA explained, a verdict of acquittal in a case such as the present does not necessarily involve a rejection of the complainant’s evidence. Thus, in their judgment, Gleeson CJ, Hayne and Callinan JJ said:

In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.[15]

[15]MFA (2002) 213 CLR 606, 617 [34] (emphasis added).

For their part, McHugh, Gummow and Kirby JJ said:

The counts of the indictment that were rejected by the jury all related to allegations made by the complainant that were unsupported by any relevant confirmatory evidence. Even if the jury were inclined to believe the complainant’s accusations against the appellant, attending to the warnings given concerning the duty of the prosecution to prove its case beyond reasonable doubt, they could well have rejected accusations lacking any degree of confirmation.[16]

[16]Ibid 631 [87].

Those remarks are directly applicable to the circumstances of the present case. The differential verdicts are to be explained by the relevant differences identified above, regarding the quality of AB’s evidence on the respective charges and the presence or absence of supporting evidence. There was thus a sound, rational basis for the verdicts and, accordingly, we reject the submission that the different verdicts represent ‘an affront to logic and common sense’. The ground of appeal therefore fails, and the application for leave to appeal against conviction must be refused.

In this context, we conclude by noting that the jury, in the case, were particularly attentive. In the course of the evidence, the jury provided a number of written questions which were asked of the various witnesses. Each of the questions was relevant. Clearly, throughout the trial, the jury gave close attention to the evidence, and to the relevant details of it.

Sentence — Ground 1 — sentence manifestly excessive

Summary of plea

At the time of offending, the applicant was 24 years of age, and at the time of sentencing she was 59 years of age. She has four sisters, but only maintains contact with one, who is supportive of her.

After completing her secondary education, the applicant completed her tertiary course in teaching, gaining a Diploma of Teaching, a Bachelor of Education, and a Master of Education, Clinical Pastoral Education and Grief Counselling. Having worked for a short time in retail business, she spent almost forty years in the education profession. As mentioned, she began her teaching career in 1981, which was her graduate year. In the intervening years, she worked in primary and secondary education, and spent time as a principal of a college. In addition to working in Australia, she has lived and worked overseas. She was an educator adviser in the United Arab Emirates, and, before her arrest, she had spent the previous decade in Hong Kong as an educational consultant at a secondary school.

At the time of her sentence, the applicant had been married for a period of ten years, and she had had a relationship with her husband for over thirteen years. The couple do not have any children of their own, but her husband has three daughters from his first marriage. Due to the nature of the allegations contained in the charges, the applicant became estranged from her stepdaughters.

The applicant was arrested at Brisbane Airport on her return from Hong Kong in January 2017, and was extradited to Melbourne from where she was granted bail. Her arrest caused her considerable financial strain because, as a result of the charges, she was unable to work during the two years that preceded her trial. At one point, her apartment in Hong Kong caught fire, and she lost almost all of her belongings. Her husband has been in receipt of a disability support pension. As a consequence of the applicant’s inability to work during the previous two years, the couple have suffered substantial financial hardship.

On the plea, counsel placed emphasis on the fact that the two charges on which the applicant was convicted were isolated events in a relationship with AB. Since her arrest, she had suffered a substantial degree of public humiliation, as the contents of the charges of which she was acquitted were the subject of publicity. Counsel also relied on the delay between arrest and conviction.

Reasons for Sentence

In thorough and carefully considered reasons for sentence,[17] the judge summarised, in detail, the background to the relationship between the applicant and AB, and the circumstances in which the offences of which she was convicted occurred. The judge noted that the applicant’s evidence, that she had sought to set boundaries in her relationship with AB, indicated that she was aware that there was a risk that AB, then aged 14 years, wanted to have sexual relations with her.[18]
[17]DPP v Woods [2018] VCC 2131 (‘Reasons’).
[18]Ibid [27].

His Honour then summarised the offences as follows:

In summary, in August 1984 you were in love with AB. You knew he was in love with you. He was aged 14 years and you were 11 years older. You were the adult in the relationship and had control over it. You knew there was a risk that he might step over ‘the line’. In these circumstances you allowed a situation to arise whereby you were alone with AB in his home in loco parentis for over five weeks, while his parents travelled overseas from 26 December 1984 until 30 January 1985. During this period, as the jury have found, you and he exceeded the boundaries and ‘stepped over the line’ when you engaged in mutual masturbation on one occasion.[19]

[19]Ibid [28].

The judge considered whether charge 7 involved an act of penetration. His Honour was satisfied beyond reasonable doubt that that act did involve AB penetrating the applicant’s vagina with his finger, which was an aggravating circumstance of the offence.[20] The judge was not satisfied beyond reasonable doubt that any other sexual contact occurred between AB and the applicant.[21]
[20]Ibid [43].
[21]Ibid [44].

In considering the seriousness of the offending, the judge took into account that it has been recognised, in a number of cases,[22] that long-term and serious harm can be caused to children as a result of premature sexual activity between them and adults. The judge stated that sexual offending by adults against vulnerable children is a ‘scourge on our society’, and that offending of that nature is regarded by the courts as extremely serious.[23] His Honour accepted that the offending in this case was an isolated instance. in which the applicant had crossed over the line that she had drawn for herself in her relationship with AB. However, his Honour added:

Nonetheless, it involved a grave breach of the trust you owed to AB and his parents, who trusted you to care for their son as a mother figure would. By reason of his obvious affection and infatuation for you he was a young adolescent male who was, to some extent vulnerable, and deserving of your protection and not your sexual abuse.[24]

[22]Clarkson v The Queen (2011) 32 VR 361, 371 [33] (‘Clarkson’). See also Adamson v The Queen (2015) 47 VR 268.

[23]Reasons [58].

[24]Ibid [60].

The judge was not satisfied that the letters sent by the applicant to AB from Longreach, and the voice recording of the telephone calls that she made to him in November 1984, disclosed a planned crime or that she was grooming AB. Rather, his Honour sentenced the applicant on the basis that her offending ‘was situational and occurred as a spontaneous incident’, which lasted for a period of only minutes.[25]
[25]Ibid [62].

The judge also took into account that the applicant was at the time a youthful offender, that he regarded the applicant as a low risk of re-offending, and that she had lived a blameless life since committing the offences. His Honour also took into account that there had been considerable delay in the case, but noted that that factor is of reduced weight due to the nature of the offending and its effect on the victim. His Honour took into account as a mitigating factor that the applicant had not been able to return to Hong Kong and pursue her career in education during the period of delay, and that she had been of good character since the offences were committed. His Honour did not consider that it was necessary to give weight to specific deterrence or community protection, and he regarded the applicant as having excellent prospects of rehabilitation.[26]
[26]Ibid [79]–[83].

In conclusion, the judge rejected the submission made by the prosecution that the only appropriate sentence would involve some period of immediate imprisonment. His Honour concluded as follows:

Ultimately, I have concluded that the only appropriate sentence which will achieve the purposes for which these sentences are imposed is a community correction order. While I accept you have excellent prospects of rehabilitation, given particularly your current mental health state and other matters related to your financial, employment and accommodation situation, I also accept that your prospects of rehabilitation and integration into the community will be advanced by a program of treatment and other measures as discussed and recommended in the Extended Pre-Sentence Assessment Outcome Report dated 17 October 2018, which I incorporate into these reasons for sentence as an attachment thereto.[27]
[27]Ibid [92].

Ground of Appeal on Sentence — submissions

Counsel for the applicant submitted that, while a community correction order was not outside the available range, the imposition of conditions requiring the applicant to be supervised for two years, and to participate in programs or courses that addressed her offending behaviour, made the sentence manifestly excessive.

In support of that submission, counsel noted that the judge sentenced the applicant on the basis that the offending was isolated and spontaneous. The incident was consensual, and at the time the applicant was youthful. There were no other aggravating circumstances. Counsel noted that, on AB’s evidence, he continued to have a relationship with the applicant for the next eight years, until well after he was an adult.

Counsel further relied on the circumstance that the offending occurred thirty-three years before sentence. As a result of her arrest, the applicant had lost her employment in Hong Kong, and she was unable to work while on bail. In addition, she is unable to return to Hong Kong until the completion of her community correction order. As a consequence, the financial burden of the proceeding has been substantial. Taking those matters into account, and the finding by the judge that the applicant did not pose a risk of re-offending, it was submitted that the sentence of a community correction order, involving a two year supervision period, was manifestly excessive.

In response, counsel for the respondent noted that the judge took into account, and gave appropriate weight to, each of the circumstances relied on by counsel for the applicant in this application. On the other hand, it was submitted, the offending was serious. There was a substantial age disparity between the applicant and AB. The offending involved a significant breach of trust, in light of the previous relationship of teacher and student, and the applicant’s position as a trusted family friend who was requested by AB’s father to provide some support to him. The applicant knew that AB was infatuated with her, and therefore was aware of his vulnerability. She was the adult in the relationship, and she had control over it. Further, the applicant had orchestrated the situation in which she would have care for AB during the period in which his parents were overseas. As a consequence, the objective gravity and the applicant’s moral culpability were both at a high level. As recognised by the judge, the sentencing purposes of denunciation, general deterrence and just punishment remained important sentencing objectives.

Counsel for the respondent referred to the pre-sentence report, which noted that the applicant continued to deny the offending, and which recommended the inclusion of an offending behaviour program condition, so that a sexual risk assessment could be completed. It was to that end that the judge imposed a supervision condition, and a treatment and rehabilitation condition.

In those circumstances it was submitted, the sentence of a community correction order, involving a two year supervision condition, was not manifestly excessive.

Sentence application — analysis and conclusion

In order to succeed, on the ground that the sentences imposed on her were manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the sentencing judge. In other words, it must be demonstrated that the sentences, that are the subject of the application for leave to appeal, are so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour’s reasons for sentence.[28]
[28]Clarkson (2011) 32 VR 361, 364 [89]; DPP v Macarthur [2019] VSCA 71, [58].

The offending was, by its nature, serious. At the time, the prescribed maximum sentence for indecent assault was five years’ imprisonment, and for gross indecency with a person under the age of 16 years, three years’ imprisonment. As this Court stated in Clarkson, the prohibition on sexual activity by an adult with a child under the age of 16 years is designed to protect children from the harm caused by premature sexual activity, and, by doing so, to protect them from their own immaturity.

Allied to that proposition, the prohibition is designed to deter those who might contemplate engaging in sexual activity with a person who is under the age of 16 years.[29] The Court noted that the prohibition reflects ‘a longstanding community consensus that it is not until the age of 16 that a child has the psychological maturity and decision-making competence to agree to sexual activity’.[30] Accordingly, the Court said, the consent given by a complainant can never of itself be a mitigating factor.[31]
[29]Clarkson (2011) 32 VR 361, 368 [26].
[30]Ibid 369 [28]; Best v The Queen [2019] VSCA 124, [39].
[31]Clarkson (2011) 32 VR 361, 364 [4].

In Clarkson, the Court went on to identify some of the factors which need to be taken into account in the sentencing process in a case such as this, including: the relative ages of the offender and AB; whether the offender was in a position of trust or authority with respect to AB which facilitated the commission of the offence; the situation of AB, and the extent to which he or she was taken advantage of; and any evidence which demonstrates any harm suffered or likely to have been suffered as a result of the offending.[32]
[32]Ibid 373 [42].

In the present case, as the sentencing judge correctly noted, there were a number of serious aspects of the offending. In particular, the applicant was in a position of trust in respect of AB. First, she had been his teacher and, in that capacity, had gained the confidence and respect of his parents. Secondly, and as such, she became a valued, trusted and close family friend of AB’s parents. Thirdly, during the period in which the offending took place, the applicant had been specifically entrusted with the role of caring for and looking after AB. His welfare was entrusted to her at that time.

The offending constituted a single occasion, lasting but a few minutes. However, the context in which the offending occurred is relevant in determining the applicant’s moral culpability. As we have discussed, during the previous year, and in particular the preceding six months or so, the applicant had freely expressed her powerful romantic love for AB. She had treated him as if he were her adult boyfriend. She, on her own initiative, engaged in highly romantic, and indeed suggestive, relations with AB.

As the adult in the relationship, she was very much in control of where the relationship was heading. As part of her romantic attachment to AB, she had sought out the position of his ‘babysitter’ during the five week period in which the offences were committed. In those circumstances, she assumed an overriding onus to ensure that the relations between herself and AB did not ‘cross the line’.

AB, and his sister, have each provided victim impact statements. While the judge was, properly, cautious about accepting that the applicant’s conduct was responsible for all of AB’s subsequent problems, nevertheless those statements demonstrated the kind of harm that can be caused by premature sexual activity involving children and young adolescents, particularly when it is engaged in with them by an adult who occupies a position of trust and responsibility in respect of the victim.

In those circumstances, the judge was correct to characterise the offending as serious. His Honour considered that the applicant had excellent prospects of rehabilitation, and that the risk of her re-offending was low.[33] Accordingly, his Honour considered that it was not necessary to give weight to specific deterrence or protection of the community. Nevertheless, in light of the serious nature of the offending and the applicant’s moral culpability, it was necessary for the sentence to fulfil the sentencing purposes of general deterrence and denunciation. In that respect, as this Court has recognised, the imposition of a community correction order is a sentencing disposition which is not only directed to rehabilitation of the offender and protection of the community, but which also has a genuinely punitive content.[34] As such, in an appropriate case, a community correction order may vindicate the sentencing purposes of general deterrence and denunciation.
[33]Reasons [80], [82].
[34]Boultonv The Queen (2014) 46 VR 308, 337 [124]; Cole (a pseudonym) v The Queen [2015] VSCA 44, [21]–[22].

In the present case, the Extended Pre-sentence Assessment Outcome Report provided to the judge noted that the applicant lacked insight into her offending. Further, as the judge recognised, the applicant’s mental health state and the difficulties that she was experiencing in relation to employment, accommodation and her financial affairs, were relevant to the issue of her rehabilitation and integration into the community.[35]
[35]Reasons [92].

Taking those matters into account, we are not persuaded that the sentence imposed by the judge, comprising a community correction order for a period of two years, with specified conditions, including the supervision by a community corrections officer, and participating in programs or courses that addressed her offending behaviour, was outside the range of sentencing options available to the judge. In our view, the judge was well justified in imposing the conditions that are attached to the order. It follows that the application for leave to appeal against sentence must fail.

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Citations

Woods v The Queen [2019] VSCA 259

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James v The King [2023] VSCA 34

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Hocking v Bell [1945] HCA 16

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[2019] VSCA 259

13 November 2019