B A v The Queen [2012] VSCA 285

2 The appellant has appealed against his conviction on four counts of incest and one count of an indecent act with or in the presence of a child under the age of 16 years.

3 The principal Crown witness was the complainant, the daughter of a woman with whom the appellant lived in a de facto relationship. The offences were alleged to have occurred when the complainant was aged between seven and 12 years.

4 The complainant gave evidence by means of a VARE tape, when the complainant was aged 13 years, and at a special hearing when she was a year older.

5 The complainant said that the offending began when she was seven or eight years' old. She described an incident where she was sitting in the lounge room. She said:

I think I was sitting there and my foot touched his leg or something and he got an erection, that's what he told my mum, and then it started from then I think, but I wasn't sure.

The complainant also said that the appellant 'pulled me towards him but I struggled ... and I pulled myself away, and then mum and [the complainant's sister] came in to the room and it stopped.' The complainant's mother said that when she entered the room, the appellant 'was sitting on a couch and [the complainant] was on his knee ... when I came round and they jumped up ... ' (Count 1, indecent act.)

6 The complainant said that a couple of days after the first incident, the appellant had sexual intercourse with her on her mother's mattress in the lounge room. The complainant's sister was asleep and her mother was shopping. The complainant said that it was 8 or 9 o'clock on a weekend night and the appellant pulled her towards him. She said that she was wearing a night-dress. He took her

underwear off and put his penis in her vagina. She said that it did not last long because her sister woke up (count 2, incest).

7 The complainant said that on another occasion she was sitting on the couch and the appellant pulled her towards him while she tried to get away. She said that he had a blanket over himself and had pulled his tracksuit pants off. His penis was out and he put it in her vagina. The complainant said that the act of intercourse lasted about five minutes (count 3, incest). The complainant said the appellant would regularly have sex with her, probably once or twice a week (uncharged acts).

8 The complainant said that at another time the appellant took his pants off and pulled the complainant's head towards him and made her suck his penis. She said that she ran out of the room crying and that she was probably nine or ten years' old when the offence occurred (count 4, incest). The complainant said that this conduct occurred more than once (uncharged acts).

9 The complainant gave evidence that once the appellant licked the inside of her vagina (count 5, incest).

10 The first ground of the appeal is that the verdict on count 1 is unsafe and unsatisfactory. Counsel for the appellant submitted that cross-examination of the complainant rendered the timing and circumstances of the offence uncertain. The effect of that uncertainty was said to be twofold: defence counsel lacked material upon which to base cross-examination of the complainant and there was a high risk that some degree of substitution had taken place.

11 Counsel for the appellant pointed out that the circumstances constituting count 1 were said by the prosecutor in opening to have occurred between the appellant and the complainant in the lounge-room when the complainant's mother and sister were baking a cake in the adjoining kitchen. In cross-examination, however, the complainant indicated that she was referring to some other incident, either before or after the cake incident. She was asked, 'when was the cake incident before or after that?' and said: 'I don't know.' She said, when asked whether it was the first incident, 'Yes I would think that it was', and later said in answer to the question, 'Was that the first time anything happened?', 'I'm unsure'. In his charge, the trial judge concentrated on the evidence given by way of VARE tape, presumably because the complainant was unable to specify any details of the incident in cross-examination.

12 Like criticisms of the complainant's evidence founded ground 2, which was that the verdict on count 2 was unsafe and unsatisfactory.

13 The argument of counsel for the appellant was that the uncertainty of the timing of the events constituting count 1 affected count 2. The particularisation of count 2 depended upon the specificity of the allegations in respect of count 1 in that the incident founding count 2 was alleged to have occurred 'a couple of days later' according to the complainant in her VARE tape. The complainant said that she was 7 or 8 years' old. The complainant said that the incident occurred ' ... in the lounge room on the mattress on the floor'. She said, 'I think [the complainant's sister] was asleep and mum was out shopping or something.' She added, 'I think from 8 or 9 o'clock at night' and she said she thought that it was a weekend.

14 In cross-examination the complainant could not say that the first time that the appellant had penile vaginal sex with her was in the lounge room, only that 'I think it was in the lounge room'. When she was asked, 'Do you have any idea if you were six, eight or ten?' she replied, 'Um, I'm unsure'. She was unsure as to what time of the night it was, whether she was sharing a bed room with her sister and apparently did not know where her mother was. When asked in the course of cross-examination whether the first incident of vaginal sexual intercourse took place on the couch, she said, 'Yes I think, nup - I think so, I don't know. I don't really remember.'

15 Counsel for the appellant submitted that the particulars in relation to the counts became more vague when regard was had to the evidence given by the complainant of uncharged acts. She said, for example, 'Probably it happened like in different ways, like sometimes it'd be once a week or twice a week or even three times a week and then it would stop for like two weeks and then happen again.' It was said by counsel that the number and lack of specificity of uncharged acts added to the possibility of confusion in the jury's mind as to the evidence relating to particular charged acts.

16 In my opinion, the acts said to constitute the offences were sufficiently described by the complainant in the VARE recording. The uncertainty that emerged from her cross-examination may have detracted from the complainant's credibility in the eyes of the jury but I do not think it required the rejection of her evidence. Having observed the VARE tape and the cross-examination and with the benefit of the criticisms of that evidence by the defence and the response by the prosecutor, the jury were in a position to determine whether to accept the complainant's account. That question was the primary responsibility of the jury. It was, in my view, open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. The material relied upon by counsel for the appellant might have been taken by the jury to preclude satisfaction to that standard, but that is not sufficient to establish that the verdict was unsafe or unsatisfactory.[1]

17 Despite the initial conflation by the prosecutor of the cake incident with the circumstances of count 1, it was plain by the conclusion of the cross-examination of the complainant that the cake incident was not the occasion of the conduct alleged in count 1 and in turn counsel addressed on this basis and the trial judge made the distinction abundantly clear in his charge. Defence counsel specifically told the jury that the uncertainty about the date created no difficulty for the defence in dealing with count 1.[2]

18 At the hearing of the appeal, counsel for the appellant also submitted that the complainant's evidence fell short of establishing contact between the appellant and the complainant which could constitute an indecent act. In my opinion, the complainant's evidence of the appellant pulling the complainant toward him, the complainant struggling to get away from him and the appellant getting an erection were capable of founding an inference that there was an indecent act.

19 The evidence given by the complainant in cross-examination introduced a certain amount of confusion as to the time at which the first act of sexual intercourse occurred, in particular whether it could be related to the cake making incident. In my view, however, the evidence given by the complainant in the VARE tape of the detailed circumstances in which the intercourse occurred sufficiently identified the incident.[3]

21 The fourth ground of appeal is that the trial judge erred in holding that a witness could not give evidence as to the general reputation for veracity of the complainant.

22 At common law evidence is admissible to impeach the veracity of a witness. The rule is stated by Archbold in these terms:

In order to impeach the credit of a witness for veracity, witnesses may be called by the other side to prove that his general reputation is such that they would not believe him upon his oath.[4]

Counsel for the appellant, relying upon these authorities, sought to lead evidence from the complainant's mother as to whether she believed the complainant's allegations against the appellant, that the complainant frequently lied and that she would not believe the complainant on her oath.

23 The trial judge ruled that Part 3.7 of the Evidence Act 2009 ('the Act') ousted the common law rule and the evidence was not admissible.

24 Section 102 of the Act provides that credibility evidence about a witness is not admissible. Section 101A defines credibility evidence as evidence that is relevant only because it affects the credibility of a witness or is relevant because it affects the assessment of the credibility of a witness and for some other purpose for which it cannot be used because of a provision in the Act relating to hearsay or opinion. That provision, which the Act describes as 'the credibility rule', is succeeded by three sections containing detailed exceptions to the rule. It was not disputed that none of the exceptions applied in the present case.

25 In my opinion, it is apparent that Part 3.7 of the Act covers the field by establishing a general rule subject to a number of limited exceptions. To revert to the common law would effectively abrogate the statutory rule.

27 The sixth ground of appeal was that the charge to the jury was unbalanced. Counsel advanced the ground as being a consequence of the defects complained of in grounds 1 and 2 in that the trial judge concentrated on the evidence that was clearer, that is, the evidence given by way of VARE tape, rather than the much vaguer evidence given in cross-examination.

28 While the trial judge did summarise the evidence-in-chief given by the complainant, he drew the jury's attention to the inconsistencies between her evidence and an earlier statement she made to the police and told the jury that they could use the inconsistency in assessing the credibility and reliability of the complainant's evidence. His Honour also recounted the aspects in which the complainant's evidence was vague or uncertain and repeated the submissions made by defence counsel as to the lack of clarity in the complainant's evidence. Viewed overall, I consider that the charge was balanced.

29 Ground 7 sought to aggregate errors complained of in earlier grounds to establish that there had been a substantial miscarriage of justice. For the reasons I have stated, I do not think that any of the earlier grounds was made out.

1. The learned trial judge erred in failing to give the jury any direction as to how they were to approach the evidence of the applicant's letter.

31 The letter was tendered by the prosecutor and read to the jury. The letter was addressed to the appellant's family, and stated:

I am so, so sorry for all I've done. I have taken away your quality of life and that is inexcusable. No matter what is said I have and always will love you.

I know this will mean nothing to you, but I will hold the love you gave me endlessly deep in my heart and soul. I have abused the life that you gave to me, because I was too mixed up in the head to appreciate it.

I'm not making excuses for what I allowed to transpire. It is a deplorable act. I am now a shell of a man. I will walk this earth with my head hung low, never to be able to hold my head high with pride again, as I don't deserve it. Please hold your head high, as you are a true testament to a good person. Your love was endless, your warmth and desires were boundless. I was a very lucky man and I just - and just, I didn't realise it. I'm sorry and should not have allowed the situation to continue. I should've sat you down and told you that it was wrong, but I did not show the maturity to do that. Therefore I was not really a man, as a man would have known that you don't allow certain things to happen.

I'm sorry that I've put you through - this year was going to be your year. Please pursue your dreams. Don't let anything get in your way.

You look to me as a dad and I have failed you and you all. I'm sorry this has played out this way. It was not my ambition to fail you. I will hold on all that you filled my life with and now, and now never to know that feeling again.

I am solely to blame for allowing this progress. I can't think of any more to say as my mind shattered from what I had allowed to happen. I love you all. Have to go and wait for my verdict to fall. I have thrown the first stone. Now I have three coming back. I love you, no matter what. You will be in my heart. Sorry.

32 The appellant was cross-examined about the letter. He said that in the letter he had been referring to the impropriety of allowing the complainant to climb over him, which on occasion caused him to have an erection. When he was asked what he meant when he wrote, 'that you don't allow certain things to happen', he said:

Well, allowing the close - with her being so close to me and climbing all over me and with at times getting an erection, those things you know shouldn't happen.

33 Counsel for the appellant submitted that the trial judge was required to give a direction to the jury of the type discussed in Burns v R,[5] namely, that the jury must be satisfied that the admission was made by the accused and that it was truthful and accurate. Counsel went further and submitted that the trial judge should have directed the jury that they must be satisfied beyond reasonable doubt that in the letter the appellant was referring to the sexual misconduct with which he was charged.

34 The confession considered in Burns v R was the only evidence implicating the accused. The accused denied making the confession. In R v Buckley, Nettle JA, with whom Winneke P and Charles JA agreed, held that a direction in accordance with Burns v R was necessary 'given that the alleged admission was a major plank in the Crown case and that there was room for different views about the exact effect of what the applicant was alleged to have said.'[6]

35 The letter written by the appellant, on the other hand, was hardly a major plank in the Crown case. The prosecutor did not suggest that the letter itself could establish the appellant's guilt and counsel for the appellant conceded in argument in this Court that the letter was not advanced by the prosecutor as a confession of the offences with which the appellant was charged. The critical issue in the case was the credibility of the complainant. Defence counsel sought no Burns v R direction. Counsel's stance is readily understandable, for the direction now said to be necessary would have highlighted the letter and may have been seen by the jury as inviting them to treat the letter as an admission of guilt.

36 The trial judge gave the jury detailed instructions about the letter. He summarised the appellant's evidence concerning the letter and said that the indecent act charges were not constituted by the acts to which the appellant referred in his explanation. His Honour emphasised that the jury had to be satisfied beyond reasonable doubt that the conduct described by the complainant had occurred. He said the jury were not to substitute the contents of the letter for the acts alleged to

constitute an indecent assault. The directions, in my view, were appropriately adapted to the way in which the case was conducted and how the issues were presented to the jury. In the circumstances of this case, no more was required.

37 For the foregoing reasons, I would dismiss the appeal.

[1] See Libke v R [2007] HCA 30; (2007) 230 CLR 559, [113] (Hayne J).

[3] See R v DWB [2008] VSCA 223; (2008) 20 VR 112.

[4] Archbold, Criminal Pleading Evidence and Practice 2009, [8-153]. See R v BDX [2009] VSCA 28.

[5] [1975] HCA 21; (1975) 132 CLR 258.

[6] [2004] VSCA 185; (2004) 10 VR 215, [30].