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THE COURT:

1. On 24 August 2009 the appellant pleaded not guilty to an indictment in the following terms:

FIRST COUNT THAT between the 1st day of February 1987 and the 31st day of December 1988 at Canberra in the Australian Capital Territory Henrik Forsti committed an act of indecency upon a person, namely, AB, who was under the age of 10 years.

SECOND COUNT AND FURTHER THAT between the 1st day of February 1987 and the 12th day of October 1989 at Canberra aforesaid Henrik Forsti committed an act of indecency in the presence of a person, namely, AB, who was under the age of 10 years.

THIRD COUNT AND FURTHER THAT between the 1st day of February 1987 and the 12th day of October 1989 at Canberra aforesaid Henrik Forsti committed an act of indecency upon a person, namely, AB, who was under the age of 10 years.

FOURTH COUNT AND FURTHER THAT between the 11th day of October 1987 and the 12th day of October 1990 at Canberra aforesaid Henrik Forsti engaged in sexual intercourse with a person, namely AB, who was under the age of 10 years, and who was, to his knowledge, his step-child.

FIFTH COUNT AND IN THE ALTERNATIVE TO COUNT FOUR THAT between the 11th day of October 1987 and the 12th day of October 1990 at Canberra aforesaid Henrik Forsti engaged in sexual intercourse with a person, namely AB, who was under the age of 10 years.

SIXTH COUNT AND FURTHER THAT on or about the 26th day of October 1991 Henrik Forsti engaged in sexual intercourse with a person, namely AB, who was of the age of 10 years, but under the age of 16 years, and who was to his knowledge, his step-child.

SEVENTH COUNT AND IN THE ALTERNATIVE COUNT SIX THAT on or about the 26th day of October 1991 Henrik Forsti engaged in sexual intercourse with a person, namely AB, who was of the age of 10 years, but under the age of 16 years.

EIGHTH COUNT AND FURTHER THAT between the 11th day of February 1987 and the 30th day of June 1992 at Canberra aforesaid Henrik Forsti employed a young person under the age of 16 years, namely, AB, for the purpose of depicting by means of photographs AB as being engaged in an act of a sexual nature where the depiction of AB in those circumstances would offend a reasonable adult person.

NINTH COUNT AND FURTHER THAT on the 24th day of July 2008 at Canberra aforesaid Henrik Forsti intentionally possessed child pornography.

2. The complainant AB was born in October 1981, meaning that the events relevant to the charges occurred when she was between the ages of 5 and 10 years. In general terms the allegation against the appellant was that he committed acts of a sexual nature on the complainant whilst he was in a relationship with the complainant’s mother.

3. The appellant elected to be tried by a judge alone, and the trial proceeded before Gray J. After a trial lasting nine days his Honour reserved his decision on 31 March 2010. On 18 August 2010 his Honour rendered verdicts of guilty to Counts 1 and 2, and not guilty to the remaining counts on the indictment.

4. By a Notice of Appeal dated 4 March 2011 the appellant appeals from the convictions imposed by his Honour on the following grounds: 5.1 His Honour’s findings in respect of counts 1 and 2 were unsafe and unsatisfactory. Particulars 5.1.1 His Honour gave insufficient weight to the evidence of the appellant in denial of these allegations made in respect of these counts. 5.1.2 His Honour erred in finding that the evidence given by the complainant’s mother relevant to these counts, was consistent with the evidence of the complainant. 5.1.3 In finding the appellant guilty in respect of these counts, His Honour did not give sufficient consideration of the potential unreliability of the complainant’s evidence in respect of the events that occurred 23 years ago when the complainant was five years old. 5.1.4 His Honour could not, on the evidence before him, have been satisfied beyond reasonable doubt that the events that form the basis of his findings of guilt, occurred when the complainant (sic) was attending Easy Slim classes at Higgins Primary School in 1987. 5.1.5 His Honour erred in finding that the complainant’s recollection of the circumstances surrounding the commission of these offences had not been the product of suggestion from her mother. 5.1.6 In light of His Honour’s expressed reservations about other aspects of the complainant’s evidence His Honour could not, on the basis of her evidence, have been satisfied beyond reasonable doubt as to the appellant’s guilt in relation to counts 1 and 2.

5. As can be seen from the above, there is no contention that the verdicts on Counts 1 and 2 are inconsistent with the acquittals on the other Counts and there is only one ground of appeal: that the verdicts are unsafe and unsatisfactory. Counsel for the appellant did not conduct the appeal by direct reference to the particulars pleaded, instead concentrating on the evidence led at trial relevant to each of the counts on which the appellant was convicted. This approach may have been dictated by an understanding that no specific error of fact or law is alleged in the Notice of Appeal, and the claim that the convictions are unsafe and unsatisfactory requires us to make our own assessment of the evidence. We will approach the appeal in the same way as the appellant’s counsel, but before doing so we will consider the test we must apply in determining whether the verdicts are unsafe and unsatisfactory. The relevant principles are not in dispute and may be set out briefly.

6. The majority judgment in M v The Queen (1994) 181 CLR 487 (Mason CJ, Deane, Dawson and Toohey JJ) expressed the test as follows: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Citations omitted)

7. The caveat found in the second half of the above passage was subject to further consideration by the majority in M: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (41). (Citations omitted) Credibility

8. Before turning to the individual counts on which the appellant was convicted, it is convenient to consider the findings of Gray J with regard to the credibility of the main witnesses, and to express our views.

9. With respect to the complainant his Honour said: 48. I am satisfied that from the way the complainant gave her evidence and the detail that she was able to give, that she was honestly recounting her experiences. On my assessment of her evidence, she was not recalling matters by way of any “recovered memory”. Rather, it was a matter of honest recall. This is not a case where her recall gives rise to the issue of whether what she recalled were true recovered memories or honestly experienced false memories (cf R v E (1197) 96 A Crim R 489). 49. It is plain from the above that I found the complainant to be a convincing witness. At the time that she gave her evidence before me she was aged 27. In 2008 she completed a Bachelor of Social Sciences majoring in Psychology and Philosophy. 50. She was not shaken in cross-examination. On behalf of the accused, it was put that her evidence gave an evolving amount of detail about some of the incidents. That circumstance is difficult to judge because very little of the evidence given as to the details of the various incidents was really challenged. By that I mean, other than an acknowledgement in cross-examination that the detail was being given for the first time, an explanation for this was not sought or a circumstance of why the detail was contradictory to any earlier statement that she had made was not elicited. Nevertheless, I must carefully scrutinise her evidence and take into account whether the matters extrinsic to her evidence can be said to be confirmed or otherwise. 51. It was also put on behalf of the accused that what was said to be remembered “may in fact be an attempt to make specific that which is undifferentiated in [the complainant’s] recollection”. That is not an impression I got from her evidence or from the way that she gave her evidence. In general, my impression was that she was not seeking to over-particularise the events that she described. I am, however, conscious of the length of time since these events may have occurred and the complainant’s age at the time.

10. The findings of not guilty entered on Counts 3 to 9 inclusive were not based on any finding that the complainant’s evidence was not credible. In respect of the third count, his Honour considered that the facts alleged with respect to this count formed part of the one transaction with those alleged in Count 2. With respect to Counts 4 and 5 his Honour was not satisfied that the acts alleged had been carried out otherwise than for a proper medical purpose. With respect to Counts 6 and 7, his Honour was not satisfied beyond reasonable doubt that the event took place at the time specified in the charge. With respect to Count 8, his Honour was not satisfied that the accused “employed” the complainant for the production of child pornography. Finally, with respect to Count 9 his Honour was not satisfied that the images were taken for the purpose of sexual gratification.

11. His Honour also considered the credibility of the complainant’s mother: 52. Another important aspect of my consideration of this matter is the impression that I formed of the complainant’s mother. She struck me as an honest witness. She was extremely nervous in giving her evidence but I am satisfied that she did her best to give a true account. She was clearly upset at learning of these matters so long after their occurrence but I do not regard her as doing anything other than her best to give evidence of the context in which they might have occurred. I do not consider that she sought to tailor her evidence to give effect to any antipathy that she might have borne against the accused as a consequence of what seemed to be an acrimonious breakdown of their relationship.

12. Gray J did not form a favourable impression of the appellant as a witness: 53. On the other hand, I was not impressed by the accused’s evidence. In so saying, I take into account that the accused was not obliged to give evidence, that he chose to do so and subjected himself to cross-examination. I also appreciate that because of the lapse of time, much of the accused’s evidence had to be confined to general denials of the conduct alleged against him. 54. However, one thing did strike me. In his explanation of matters earlier denied in his interview with police, I found him to be particularly unconvincing. His denial to police that he had ever photographed the complainant unclothed is, to my mind, quite inexplicable in light of what is depicted on the rolls of film seized by the police under the search warrant. Nor, in light of the obvious interest that the police had in investigating photographs taken of the complainant naked, does the accused’s explanation that the police would not understand appear particularly plausible. Apart from denials to each of the matters put to him by the police, he only volunteered answers where it appears to be plain to him that the police had evidence that he could not refute or explain. I regard the answers that he gave in the transcript of the record of interview in this light.

13. Later in his reasons Gray J made a further finding adverse to the credibility of the appellant. In his evidence during the trial the appellant resiled from the denial he made to the police about taking photographs of the complainant as a child and while she was unclothed. Effectively, he put forward an innocent explanation, which involved him taking the photographs for a non sexual purpose and with the consent of the complainant’s mother. Based on the evidence of the complainant’s mother, Gray J rejected the appellant’s evidence that she was aware of the appellant photographing the complainant whilst unclothed. With respect to two of the photographs (Images 12 and 13) his Honour was satisfied they were “clearly sexual images from which I can, and do, infer prurient interest on the part of” the appellant.

14. The matters referred to by Gray J were cogent reasons for his Honour finding that the appellant was not a credible witness. Mr Archer, who appears for the appellant on the appeal, submits that his Honour made “no generalised finding that the accused could not be accepted”. It is true that Gray J does not articulate that as a direct proposition, but his Honour spends some time in examining the evidence of the appellant and finds that in those areas of the appellant’s evidence referred to, he does not accept the appellant as a witness of truth. We have not seen Images 12 and 13 referred to by his Honour, and cannot express any opinion on them, but otherwise we would respectfully agree with his Honour’s findings and observations in this regard. His Honour was perfectly entitled to take those matters into account when determining what weight should be given to the appellant’s denial of the charges and to reach the conclusions that his Honour reached. Count 1

15. On the Crown case this was the first act of a sexual nature that occurred between the appellant and the complainant. The complainant gave evidence of uncharged sexual acts said to have been committed on her or in her presence by the appellant. The admission of that evidence is not the subject of any complaint. The complainant was unable to give details of each of the occasions on which these events occurred, and the evidence of the uncharged acts was led as background to the events the subject of the charges. With regard to the first count, the complainant gave the following evidence: And do you remember that happening on one particular occasion?---Yes, I remember that the first – the first time he initiated any kind of sexual contact with me. I have a fairly vivid memory of that. What was that, what did he do?---What happened was we – we went into the shower and he came in with me and we had a shower and he – he washed me with the soap, and then we got out of the shower and rather than putting our clothes on straight away, we went into the living room and he dried, dried me off with the towel in the living room, and then suggested that we didn’t put our clothes on for a while and lay around naked. On this occasion he – he – we were lying on the couch, I was lying down on the couch naked while he was sitting on the couch upright and he started to touch me on my body, on – on my stomach, and then moved his hand down to my vagina and stimulated my clitoris and asked me whether I thought it was – how it felt. And did you respond to that?--- Yes, I do remember saying that it felt nice. Can you recall how long that incident, or how long it went for?---I think it went for about 10 minutes. He would have been touching me, stroking my clitoris. I would have said it was about up to 10 minutes. Now that subsequently stopped, you say, after about 10 minutes. Did he say anything to you?---He said to me that, you know, that this was a special thing we did between us, it was just between us, and if he told my – if I told my mum about it, she might get upset, and – and she quite often got upset – you know, she was quite fragile and he knew that, and he said to me something to the effect of “You don’t want to make your mum upset so let’s just keep this a secret between us”. And I think earlier you said, first sexual contact, is that---?---Yes. So is this instance the first time that he did something of a sexual nature to you?---It was definitely the first time he touched my vagina, yes. It was definitely the first sexual contact.

16. It is fair to say, as Gray J observed, that the complainant was not shaken in cross‑examination.

17. In her evidence the complainant said these events occurred while her mother was at Easy Slim classes at Higgins Primary School, and that these classes were held on Tuesday nights. The complainant testified that the appellant drove her mother to the classes, and picked her up and drove her home afterwards. The appellant would babysit the complainant whilst her mother attended the classes. The complainant’s mother testified that she attended Easy Slim classes at Higgins Primary School in 1987, and that the appellant drove her to and from those classes. She further testified that the appellant would look after the complainant while she attended the classes.

18. The appellant attacked the complainant’s credibility about this incident in a number of ways. Some of the appellant’s criticisms related to the complainant’s evidence directly relevant to this charge, and some related to her evidence with respect to other charges. He firstly submitted that the credibility of the complainant and her mother was adversely affected by the fact that it was not until the trial that the witnesses made any mention of the classes being held at Higgins Primary School.

19. We do not consider this to be a matter which adversely affects the credibility of the witnesses. In his evidence the investigating police officer, Constable Cianter, said that he could not recall asking the witnesses where the classes took place. Whether the investigating police’s failure to pursue this issue reflected a belief that it was not an important detail can now only be a matter for conjecture. However, it is certain that this evidence was problematic for the appellant. It was a central plank of the case put forward by the appellant that he had never taken the complainant’s mother to weight loss classes, but had taken her to classes for an assertiveness course in Civic or Downer. It was the appellant’s case that if the classes were in Civic or Downer there would have been insufficient time for the appellant to drop off the complainant’s mother, return home, commit the offences and then return to collect the complainant’s mother at the end of her class.

20. There is no reason to conclude that the witness’s evidence about the Easy Slim classes being held at Higgins Primary School is a product of collusion or independent fabrication. We do not accept that this evidence has a detrimental effect on the credit of the witnesses. The effect of this evidence is that the appellant had the opportunity to commit the offence.

21. Other criticisms are made of the evidence of the complainant. It is alleged that the evidence of the complainant differed from that of her mother as to over what period her mother attended Easy Slim classes. It was also alleged that there was a discrepancy between the evidence of the complainant and that of her mother as to over what period the complainant had slept in the same bed as her mother and the appellant. Insofar as there are discrepancies, they are the sort of discrepancies that may be expected where witnesses are describing events that occurred many years earlier. In addition, an examination of the evidence suggests that the complainant’s mother was less than certain about these issues, so that any discrepancy may be a result of fault in the complainant’s mother’s recollection.

22. What is important about this evidence is that the evidence of the complainant’s mother substantially corroborates that of the complainant about circumstances existing at about the time of the alleged offences whereby the appellant had the opportunity to commit the offences. As well, the discrepancies mentioned above are consistent with the complainant and her mother each giving truthful evidence of genuine recollections, rather than having agreed on a story.

23. The complainant is further criticised for giving greater detail in her evidence than appears in her police statement about her allegations that the appellant gave her an enema. This evidence relates to Counts 4 and 5. The extra details supplied by the complainant during the trial were just that: matters of detail. The processes of examination in chief and cross examination are apt to elicit detail from witnesses that goes beyond the information sought and recorded by investigating police officers when complaints are first made. The further detail given in evidence by the complainant about this event does not lead us to doubt her evidence on the charges in question.

24. It is also suggested that the complainant’s evidence regarding Counts 6 and 7 casts doubt on her credibility. The complainant gave evidence of certain circumstances that assisted her recollection of the events alleged in those charges, particularly that the movie, the Rocky Horror Picture Show, was playing on the television during the events the subject of the charges: Is there any other stuff that you can recall, to use your words?--- I can remember another incident where Mr Forsti performed oral sex on me in the living room of his house. And when you say his house, where was he living at the time?---He was living in Kaleen. And what were the circumstances of that? Can you indicate that to his Honour?---Yes. I can remember that quite vividly because – it’s just always been something that stuck in my mind. I remember it was – I think it was either just before Christmas, or just after. It was certainly not very long before my parents – before they broke up, sorry, before, yes, my mother terminated the relationship. Sorry to interrupt you – terminated the relationship with Mr Forsti?---With Mr Forsti, yes, sorry. And do you recall what year that was?---I remember she broke up with him in 1992. So, I remember it was the beginning, towards the beginning of that year, because I’d, I remember coming back from Summer Camp, school camp, so that would have been the beginning of Year 5 I think, or Year 4. It would have been the beginning of Year 4. I remember coming back from camp and she told me that she’d ended the relationship with him. So I remember this event of oral sex occurring not long before their breakup. And this event sticks in my mind because I remember it was the first time I’d ever see the Rocky Horror Picture Show, and that was playing on the television in the background. I think it was a Sunday night, for some reason, because I think my mother went to bed quite early, because she had to work the next day. And I can remember it was quite warm – that’s why I can tell it was sort of towards the end of that year. I was just in a nightie. My mother had gone to bed, and I remember we were engaging – I remember he was touching me on the couch of the living room, of his living room in Kaleen, and touching my vagina. And I remember him suggesting that he stimulate my vagina with his tongue. And I remember he suggested I straddle his face. So I was sitting – he was sitting upright on the couch and I had my legs wrapped around his shoulders and around his head. And I was wearing my nightie without my underpants, and I remember him starting to stimulate my clitoris with his tongue. And---?---And this seemed to go – sorry. No, my apologies to interrupt. Sorry, ..., keep going?---I was going to say, I remember this went on for a while, because I remember my mother – I was – we were worried that my mother would wake up. And I remember stopping at different points and then starting again. So I think in total, the time that he did it would have been maybe about 10, 15 minutes, but maybe broken up over different parts of time. Because I remember at one point, my mum got up and went to the toilet in the middle. But I remember always that the Rocky Horror Picture Show was in the background. And I think it stuck in my mind, or that event stuck in my mind, knowing that that was a film that was on in the background, because it was such a weird film. And I didn’t quite understand it at the time as a child. So it really stuck in my mind.

25. Evidence was led as part of the Crown case at trial that the Rocky Horror Picture Show was first shown on television in the ACT on the Prime Television Network on Saturday 26 October 1991. It was suggested that the complainant’s recollection that those events occurred on a Sunday is contradicted by the evidence that the movie was in fact broadcast on a Saturday. This is a mere matter of detail and any error on the part of the complainant in this regard does not cast doubt upon her credibility, especially since the complainant never committed herself to the events occurring on a Sunday night, saying only that she thought it was a Sunday night and explaining why she thought that. Otherwise, the complainant’s evidence about the screening of the movie fits very neatly with her evidence of this incident.

26. The evidence of the complainant relevant to Count 1 was cogent and coherent. Whilst she was giving evidence of events said to have occurred more than 20 years earlier when she was between 5 and 7 years old, they were events by their nature likely to remain in the memory of a young child. We are satisfied that it was open to Gray J, on the evidence before him, to find the appellant guilty of Count 1. Count 2

27. The appellant relied upon the same general criticisms of the complainant’s credibility that he raised with respect to Count 1. For the reasons we have already given we do not accept that the matters raised by the appellant adversely affect the complainant’s credibility.

28. The complainant gave the following evidence relevant to Counts 2 and 3: Now, you gave evidence earlier about him masturbating in the shower?---Yes. Did that occur anywhere else other than in the shower?---I can remember the first time it occurred was on the couch in my mother’s house in the living room. So I remember he was the first person to tell me about sex and how it worked, and how babies were made, and I remember being sort of intrigued about the process of ejaculation, and I can remember him wanting to show me specifically how it worked. And can you recall the occasion when this occurred on the couch?---Yes, that was the first time it occurred. And was that after the incident you’ve described after the shower when he touched you on the vagina?---It was – I think it was maybe not on the same time that he first touched my vagina. I think it was maybe the next time or certainly not very long in-between the first time when he babysat me and touched me for the first time, and when he masturbated in front of me. So I think I would have been around 6 or 7. All right. And you indicated it happened on the couch. What can you recall happening?---I can recall him touching his penis, stroking it with his hand until he got an erection, and I can remember him moving his hand up and down his penis, and at one point I did touch him as well. I – I held his penis and attempted to masturbate him as well - - - How did that occur?---How long? No, how did it occur?---I put my hand around his penis and moved it up and down – I think I only did it for about a minute or two. Did he ask you to do that?---I can’t recall if he asked me to do it or if I did it of my own volition. Did he tell you to stop?---No. And whilst you were touching his penis in the way you describe, did he ejaculate?---I stopped touching his penis after about a minute or two and then he – he took over, because I think I was finding it difficult. And then he finished masturbating himself til he climaxed.

29. The only specific submission the appellant makes relevant to this count is that Gray J should not have been satisfied beyond a reasonable doubt “that the event the complainant was describing was an individual act answering to the description of the offence charged”. We see no merit to this submission. The complainant was able to generally identify the period during which this incident occurred by reference to other events and to her age at the time of the incident.

30. In his written submission on the appeal, counsel for the appellant submitted that Gray J “did not even advert to the fact that the accused had denied the charge let alone reject his evidence beyond reasonable doubt”. This is not an accurate or fair statement. In paragraph 11 of his reasons, Gray J specifically notes that the appellant denied that the acts alleged in Counts 2 and 3 took place. His Honour also specifically considered the appellant’s credibility, and was entitled to find that the appellant was not a credible witness. As the appellant’s evidence was the same with respect to each offence alleged, a denial, it would have been strange had his Honour distinguished between the appellant’s credibility with respect to different counts.

31. The evidence of the complainant with respect to Count 2 was coherent and compelling in its detail. We are satisfied that it was open to Gray J to find the appellant guilty on the evidence before him. Conclusion

32. The appeal is dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 9 February 2012

Counsel for the Appellant: Mr K Archer

Solicitor for the Appellant: Capital Lawyers

Counsel for the Respondent: Mr J Lawton

Solicitor for the Respondent: Office of the Director of Public Prosecutions

Date of hearing: 1 November 2011

Date of judgment: 9 February 2012

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