Foster (a pseudonym) v The King [2025] VSCA 242

Foster (a pseudonym) v The King [2025] VSCA 242 | Case summary | Zoe

[57]

The respondent in Churchill was convicted at trial in September 2022, of sexual offending against his 13 or 14 year old step-daughter in 2005. Both the complainant and her mother gave evidence of distress on the part of the complainant when she first complained about the offences to her mother. The evidence of distress related to the behaviour and demeanour of the complainant when attending a hearing in the Children's Court of Victoria in 2006 or 2007. After running away from home the complainant had been located by police and taken to the Children's Court. She screamed and told her mother that she had been raped by the respondent.
It is plain that Churchill is limited to the admissibility of evidence of a complainant's distress at the time of making a pre-trial complaint of an alleged sexual offence.[13] The High Court recognised that distress displayed by a complainant when making a complaint of sexual offending may be relevant within the meaning of s 55 of the Evidence Act 2008 - that is, could rationally indirectly affect the assessment of the probability of the existence of a fact in issue, namely, whether the offending occurred - in either or both of two ways: first, as enhancing the credit of the complainant, if the jury were to find a causal connection between the distress and the making of the complaint; and, secondly, as indirect or circumstantial evidence which 'could support the occurrence of the offending if the jury were to find a causal connection between the distress and the offending'.[14]
The Court in Churchill made it clear that evidence of pre-trial distress does not, as a class of evidence, fall within the definition of 'evidence of a kind that may be unreliable' in s 31 of the Jury Directions Act 2015 ('JDA'),[15] and explained that the common law evidentiary rules which had hitherto applied had been abrogated by statute. As noted by the High Court, these rules included the requirement to warn juries that it was dangerous to convict an accused of a sexual offence on the testimony of a complainant in the absence of corroboration;[16] the treatment of corroborative distress as an indispensable intermediate fact, requiring the exclusion of other explanations for it beyond reasonable doubt;[17] the rule against hearsay, according to which a pre-trial representation, whether by words or conduct, was not permitted to be relied on to prove the existence of a fact asserted or implied in the representation;[18] and the need to warn a jury whenever the evidence had a feature shown by judicial experience to give rise to a significant possibility that it was unreliable for reasons which may not be evident to a lay jury.[19]
In the present case, the judge left evidence of TJH's distress to the jury as circumstantial evidence, rather than as going to her credibility. The judge directed the jury that, if they found that TJH was distressed 'immediately after the alleged offences' they could use that distress as 'indirect evidence' supporting the prosecution's case that TJH had suffered the 'traumatic events' the subject of charges 6 to 11, 13, 14, and 16 to 19. Further, she directed the jury that they could use the distress evidence as indirect supporting evidence only if satisfied that there was no other reason why TJH could have appeared distressed at that time. Further, the judge instructed the jury that the 'experience of the law' is that observed distress is a 'weak type of evidence', so that the jury should not give it 'much weight'.
So far as the use of distress evidence as circumstantial evidence is concerned, S Doyle and David JJA recently observed in Nelson:[20]

[61]

The BWC footage captured TJH's apparently distressed demeanour very soon after the alleged sexual offending. Apart from anything else, that close temporal connection rendered the evidence reasonably capable of supporting the requisite causal connection between the observed distress and the alleged offending. That there was, or were, another, or other, explanations for the observed distress went to the weight to be afforded to the evidence - a matter for the jury - rather than its admissibility.
Not only was the evidence of distress admissible, but the directions given by the judge as to its use were - in light of Churchill - unduly favourable to the applicant. The judge's directions that 'the experience of the law is that observed distress is a weak type of evidence and you should not give this evidence much weight' must now be viewed as heretical, given that the characterisation of such evidence 'as inherently weak or having a significant possibility of being unreliable' is now forbidden.[30]
Ultimately, the jury would have understood that they could only use the evidence of distress as indirect evidence that the alleged offending had occurred if they were 'satisfied that there is no other reason why [TJH] could have appeared distressed at that time'. To that extent, the judge clearly limited the use to which the evidence could be put.
Given the foregoing, it is impossible to see that justice has miscarried. Defence counsel did not object to the admissibility of the evidence of distress, which was, in any event, admissible. Defence counsel did not take exception to the judge's charge, which was, in any event, unduly favourable to the defence. And defence counsel did not seek to limit the use to which the evidence could be put, the use of which was, in any event, limited by judicial direction. Moreover, it is plain that defence counsel sought to take forensic advantage of what he claimed to be TJH's feigned distress.
For these reasons, ground 1 cannot succeed.

[69]

Another direction I must give you relates to assessing [TJH's] evidence. I have already told you the general rules for assessing witnesses' evidence, but I have to warn you about the need for caution when considering the evidence of [TJH] and I must give you this warning because of her evidence that she was adversely affected by prescription medications or drugs such as ice at the time of her first statement, possibly prescription medications at the time of her second statement and at the time of the committal proceedings such that she gave false accounts on those occasions.

My warning to you is as follows. It is the experience of the law that the evidence of a witness who was affected by medications may be unreliable or was affected by drugs may be unreliable. This unreliability can arise due to the effects drug use or medication use can have on a user's perceptions and recollections. The law says that every jury must take this potential unreliability into account when considering the evidence of [TJH] and in determining whether you accept her evidence at all and, if you do accept it in whole or in part, in deciding what weight to give to the evidence.

In considering whether it is safe to rely on [TJH's] evidence you should have regard to any supporting evidence led in this trial that you accept. And by supporting evidence I mean evidence from a source that is independent of [TJH] and that tends to show the truth of her evidence of the accused's guilt. In this case the prosecution relied of [her son] and [her daughter] in relation to the nature of the relationship between [TJH] and [the applicant] in the period prior to the offending and on the evidence of [her husband], [her son] and [her daughter] concerning [TJH's] use of prescription medication prior to November 2019 and on the finding of the rope and the coffee cup lid at the third campsite as items of evidence supporting [TJH's] evidence.

Another direction that I must give you that relates to [TJH] is the need for caution because of the evidence that she was criminally involved in the events giving rise to these proceedings in that she was involved in using drugs, stealing and disposing of a car and driving away from and at police. My warning to you is as follows. It is the experience of the law that the evidence of witnesses who were criminally concerned in the events before the court may be unreliable.

There is a risk that such witnesses will seek to shift the blame for the offending in whole or in part from themselves or onto others; in the process the witness may construct untruthful stories which tend to excuse the guilty and incriminate the innocent. The evidence of such witnesses may seem plausible because of the witness' detailed knowledge of the circumstances in which the crime was committed and this plausibility may add undeserved weight to what the witness says about the part played by the accused. Such witnesses may initially give a false version of events to police and may then feel locked into that account. The risk of with a witness feeling locked in may be increased where, as here, the witness committed to the initial version of events in a statement that could attract criminal penalties if it were later admitted to be false. People who were involved in criminal activities may be of bad character and may therefore be considered to be less trustworthy than other people.

[71]

We pause to observe that the judge thus gave two unreliable witness warnings. The first related to the fact that TJH was 'adversely affected by prescription medications or drugs such as ice' when she made her statements and gave evidence at committal proceedings, 'such that she gave false accounts on those occasions'; and the second related to the fact that TJH 'was criminally involved in the events giving rise to these proceedings in that she was involved in using drugs, stealing and disposing of a car and driving away from and at police'.
When a trial judge is giving an unreliable evidence direction, s 32(3) requires the judge to warn the jury that the evidence may be unreliable; inform the jury of the significant matters that the trial judge considers may cause the evidence to be unreliable; and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.[32] Nothing in s 32 requires the judge, however, to instruct the jury to look for, or have regard to, independent supporting evidence.
In giving the first warning concerning TJH's drug use (and its potential effects), the judge warned the jury of the need for caution when considering her evidence; informed the jury that TJH's evidence was that she was adversely affected by that drug use, such that TJH gave false accounts; and warned the jury that 'the experience of the law' is that the evidence of a witness who was affected by medications or by drugs 'may be unreliable'. The judge also directed the jury that the 'law says' that the jury had to take that potential unreliability into account when considering TJH's evidence and in determining whether to 'accept her evidence at all'; and, if they did 'accept it in whole or in part, in deciding what weight to give to the evidence'.
Albeit that there was an added gloss concerning 'the experience of the law', the directions to that point largely were in conformity to the terms of s 32(3). Notwithstanding that nothing in s 32 required the trial judge to direct the jury of the necessity to have regard to independent supporting evidence when considering whether it was safe to rely on TJH's evidence, however, the judge went on to direct the jury that, when considering whether it was 'safe' to rely on TJH's evidence, the jury should have regard to any 'supporting evidence' - that is, evidence from a source independent of TJH that 'tends to show the truth of her evidence of the accused's guilt' - that they accept. Moreover, the judge appeared to endorse the prosecution's suggestion that such independent evidence might be constituted by first, the evidence of TJH's son and daughter concerning the 'nature of the relationship' between TJH and the applicant 'in the period prior to the offending'; secondly, the evidence of TJH's husband, son and daughter concerning her 'use of prescription medication prior to November 2019'; and, thirdly, 'the finding of the rope and the coffee cup lid at the third campsite'.
When giving the second warning, the judge directed the jury of 'the need for caution because of the evidence that [TJH] was criminally involved in the events giving rise to these proceedings in that she was involved in using drugs, stealing and disposing of a car and driving away from and at police'. The judge warned the jury that 'the experience of the law' is that 'the evidence of witnesses who were criminally concerned in the events before the court may be unreliable'. The need for caution arose (among other things) because, first, there is a risk that such witnesses will seek to shift the blame for the offending in whole or in part from themselves or onto others (and in the process may construct untruthful stories which tend to excuse the guilty and incriminate the innocent); secondly, the evidence of such witnesses may seem plausible because of their detailed knowledge of the circumstances in which the crime was committed (and this plausibility may add undeserved weight to what the witness says about the part played by the accused); thirdly, such witnesses may initially give a false version of events to police and may then feel locked into that account (the risk of the witness feeling locked in being increased where the witness committed to the initial version of events in a statement that could attract criminal penalties if it were later admitted to be false); and, fourthly, people who were involved in criminal activities may be of bad character (and may therefore be considered to be less trustworthy than other people).
Apart from adding the gloss concerning 'the experience of the law', the judge's second warning conformed with the terms of s 32(3). Notably, the judge neither directed the jury to have regard to independent supporting evidence, nor instructed the jury as to those pieces of evidence that might qualify as such.

[72]

To understand the judge's allusion in the first warning to 'the finding of the rope and the coffee cup lid at the third campsite as items of evidence supporting [TJH's] evidence', it is necessary to refer to some of the evidence in the trial.
Detective Senior Constable Brett O'Mahoney, who was attached to the Geelong Family Violence Investigation Unit, gave evidence. On 4 January 2020 he was performing night shift investigative response duties in company with Detective Senior Constable Nash when he was assigned the role of lead investigator in relation to the matters involving TJH. He did not meet TJH, however, until 9:45 am on 22 February 2020, although he had spoken to her 'a couple of times' on the telephone. His evidence was that he spent four or five hours with her that day taking a statement.
In the morning of Thursday, 27 February 2020, Detective O'Mahoney and another detective went to TJH's home. Their purpose was to try and retrace the applicant's and TJH's 'movements up around the Steiglitz area'. They went to the first site that TJH nominated at 10:44 am, which was the Steiglitz campsite on Hut Road. Police took photographs of the area, which were shown to the jury during Detective O'Mahoney's evidence. They then went to the second campsite nominated by TJH, which was the nearby Coopers Bridge campsite. They were there 'for probably 15 minutes'. Once more, police took photographs, which were shown to the jury. At the second campsite TJH's demeanour was 'a little bit upset'.
Detective O'Mahoney's evidence was that TJH then directed them to a third campsite at Moreep Reserve. They arrived there at 12:15 pm and stayed for 49 minutes. Whilst there, TJH pointed out where the tent had been and 'became visibly upset'. She was 'distressed ... crying ... hypervigilant ... jumping at noises'. Police 'had to take some time to let her catch her breath a little bit'. Once TJH composed herself, police 'asked her in a bit more detail where ... the tent was, ... where the car was parked, ... where she said the camp fire was'. Based on what TJH told him, Detective O'Mahoney made a rough sketch of the layout of the campsite. Police took photographs, which were shown to the jury. Of particular note, when shown photograph number 46, Detective O'Mahoney said it depicted rope. TJH told him that the rope was 'still there from the tent', and she described to him that was 'a rope that they used to erect the tent'. Detective O'Mahoney gave evidence: 'I seized that rope, placed it in a paper bag and put it in the police vehicle after I'd photographed it on the tree'.
According to Detective O'Mahoney, they continued walking around the third campsite. As they did so, TJH pointed out a thermos lid - 'like a coffee travelling cup lid' - on the ground. She 'recognised that as similar to the one that they brought camping with them'. Detective O'Mahoney said: 'I placed it in a brown paper bag and secured it in the police vehicle after I'd photographed it'.

[73]

Under cover of ground 2, counsel for the applicant noted that the judge directed the jury that in considering whether it was 'safe' to rely on TJH's evidence, the jury 'should' have regard to any 'supporting evidence' - being evidence from a source independent of TJH 'that tends to show the truth of her evidence of the accused's guilt' - that they accept; and that such independent supporting evidence included the rope and coffee cup lid found at the third campsite. Counsel submitted that this aspect of the direction endorsed a broader prosecution submission that TJH's evidence was supported by items found at the various campsites.
The applicant's counsel submitted that the items identified were incapable of providing support for TJH's evidence because they were not evidence independent of her. Counsel submitted that, while the common law requirement for corroboration has been abolished, that does not mean that evidence can be characterised as independent support when in fact it is not. TJH admitted that she had not told police of these items before going with police to search for the sites and seeing them there. It may have been different had the items been forensically examined and otherwise independently linked to TJH's account, but they were not. Nor could the informant say that TJH had mentioned any of those items prior to seeing them at the sites.
Counsel submitted that the presence of those items at the campsites had no capacity to make more probable TJH's evidence in support of the charged acts. On the other hand, counsel submitted, they must have had a great 'allure' to the jury as tangible (photographed) items upon which the prosecutor dwelled in closing.
Finally, counsel for the applicant submitted that the verdicts of not guilty on charges 6, 8, 10, 11, 14 and 16 demonstrate that the jury were not prepared to accept TJH's unsupported account beyond reasonable doubt. There is a real risk that the verdicts of guilty on charges 7, 13, 17, 18 and 19 are based on the jury's impermissible reliance on the identified objects wrongly left as independent supporting evidence. A substantial miscarriage of justice has resulted.

[74]

Counsel for the respondent submitted that the trial judge warned the jury that TJH's evidence was of a kind that may be unreliable on the basis that she was affected by drug use, and on the basis of evidence that she was criminally concerned in the events. After the first of those directions, the trial judge directed the jury that in considering whether it was safe to rely on TJH's evidence the jury should have regard to any supporting evidence that they accept. The trial judge defined 'supporting evidence' as 'evidence from a source that is independent of [the complainant] and that tends to show the truth of her evidence of the accused's guilt'. In giving the direction, the trial judge stated that the prosecution relied on 'the finding of the rope and the coffee cup lid at the third campsite' as supporting evidence.
Sergeant Brendan O'Mahoney gave evidence that, on 5 March 2020, he had taken TJH to view campsites where alleged offending had taken place. At Moreep Reserve, the third campsite, TJH identified a rope that had been used to erect a tent, and a coffee cup lid similar to one which she and the applicant had brought to the campsite. The prosecutor submitted that the finding of those items at Moreep Reserve, and a 'Jack Daniels' (bourbon and coke) can at a previous campsite, was 'consistent' with TJH's evidence.
The respondent's counsel submitted that the impugned passage in the charge did no more than identify for the jury evidence upon which the prosecutor relied as supporting TJH's account. It was not a direction that the finding of those items was in fact capable of 'corroborating' her account. The jury was left to evaluate for themselves whether the finding of those items supported TJH's account. In that regard, relevant evidence included her acceptance that she had not told Sergeant O'Mahoney about the items before they were found, and her rejection of defence counsel's suggestion that she had 'just walk[ed] around and pick[ed] out random items' while at the campsites and claimed that she remembered them. The respondent's counsel submitted that it was open to the jury to accept that TJH had not simply made up the connection between the items found at the campsite and the offending.

[77]

In the present case, the judge told the jury that supporting evidence was evidence from a source independent of TJH that 'tends to show the truth of her evidence of the accused's guilt'.[41] In other words, supporting evidence was independent evidence that showed or tended to show that TJH's account that the applicant offended in the manner alleged was true.
Although s 164(1) of the Evidence Act 2008 abrogates the need for evidence to be corroborated, and s 164(4)(b) provides that a judge must not direct a jury regarding the absence of corroboration, the essential 'gatekeeper' role of a judge in a criminal jury trial remains unaffected. It is axiomatic that a judge has an overriding obligation to ensure that a criminal trial is conducted fairly and in accordance with the law. Part of that obligation requires the judge to exclude evidence that has not been shown to be admissible - recognising that particular evidence may be admissible for one purpose but not another - and to ensure that evidence is not misused by the jury.
Whether evidence is relevant - that is, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue - is a matter for the trial judge to determine. If evidence is relevant it will - subject to exclusionary rules - be admissible. Moreover, whether evidence has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue is essentially an exercise in logic.[42] Thus, whether the evidence relied upon by the prosecution in this case as supporting evidence emanated from a source independent of TJH, and whether it was capable of establishing or tending to establish the truth of TJH's account that the applicant offended in the manner alleged, were matters of law for the judge to determine. If the evidence relied upon did not have the capacity to establish or tend to establish the truth of TJH's account that the applicant offended in the manner alleged, then it was inadmissible as supporting evidence, and it was incumbent on the judge to forbid its use for that purpose.
The judge told the jury - in what the jury would have understood to be a direction of law - that supporting evidence is evidence that 'tends to show the truth of [TJH's] evidence of the accused's guilt',[43] and, among other pieces of evidence, nominated the finding of the rope and the coffee cup lid as being such supporting evidence.
In our view, the judge was wrong to leave the finding of the rope and the coffee cup lid to the jury as evidence tending to show the truth of TJH's evidence of the applicant's guilt of the alleged offending. As a matter of logic, the finding of the rope and the coffee cup lid did no more than support the fact that TJH and the applicant camped at Moreep Reserve, a matter about which there was no dispute. The finding of those items could not support the truth of TJH's account of the alleged offending at that campsite. As to whether the offending occurred, that evidence was completely neutral.
The 'sting' in the finding of those items being left as supporting evidence is that, although the jury acquitted the applicant of a significant number of charges where TJH's evidence was unsupported (charges 6, 8 to 11, 14 and 16) - so that it might readily be inferred that the jury were not prepared uncritically to accept her evidence (and had a reasonable doubt about central aspects of it) - the jury were prepared to convict the applicant of the charges that related to events at the Moreep Reserve, in circumstances where they were wrongly directed that there was supporting evidence (charges 7, 13, 17, 18 and 19). It might therefore be concluded that the 'supporting evidence' - wrongly left to the jury as such - may have been critical to conviction.
In circumstances where the evidence of the finding of the rope and the coffee cup lid were erroneously left as supporting TJH's evidence on those charges relating to the offending against her upon which the jury convicted, it is impossible to conclude other than that there has been a substantial miscarriage of justice. The convictions returned by the jury on all but charge 5 must therefore be set aside.
Whether it would be appropriate to order a new trial is dependent on the success or failure of ground 3, to which we now turn.

[82]

Under cover of ground 3, counsel for the applicant submitted that TJH was the sole source of evidence on charges 7, 13, 17, 18 and 19. It was not open to the jury, however, to accept her as a truthful and reliable witness. In written submissions, counsel contended that there were at least five 'obstacles' standing in the way of acceptance of her evidence.[50] In summary, they were:
- first, there was evidence that TJH had been hallucinating during the period when the alleged offending occurred;
- secondly, TJH had told elaborate lies about a wound to her wrist, falsely attributing its infliction to the applicant (for the purposes of charge 6), when in fact the injury was self-inflicted;
- thirdly, TJH told extravagant lies about how she came to exit the car being driven by the applicant, shortly before she was located by police on 4 January 2020;
- fourthly, TJH lied about the circumstances surrounding the theft and disposal of the Commodore; and
- fifthly, for the purposes of charge 23, TJH falsely claimed that the applicant had penetrated her with a bag of ice, when in fact she had herself inserted the bag of drugs into her vagina.
In oral argument, senior counsel for the applicant pointed to a number of discrepancies and inconsistencies in TJH's evidence. By way of example, in her evidence TJH claimed that the applicant tied her to a tree at Moreep Reserve that had also held the tent rope. Later in her evidence, she identified a completely different tree as the one she had been tied to. Another inconsistency related to the plan to dispose of the stolen Commodore. On ST's account, when he discovered the car had been stolen, he woke his mother and the applicant and told them they had to get rid of the car. TJH's account, however, was that the applicant directed her to assist him to get rid of it.
Dealing with a specific aspect of TJH's unsatisfactory evidence, counsel for the applicant turned to the circumstances of charge 23. It is clear that, in its first manifestation, TJH's description of the circumstances of charge 23 was far-fetched. TJH had claimed that, whilst he was driving at speed and injecting himself with ice, the applicant was able to move her underwear to one side - she said in another part of her evidence that she was not wearing underwear - and push a bag of ice into her vagina with his finger. At a pivotal point in her evidence-in-chief, however, TJH claimed that the applicant had told her to 'Hoover' the bag of ice and that she then had herself inserted it into her vagina. That version was at odds with her second statement to police, in which TJH had maintained that the applicant forced the bag into her vagina. Indeed, she maintained the version that the applicant had pushed the bag of ice into her vagina when she gave evidence at committal proceedings, and swore that her second statement was true and correct. She did so notwithstanding that she knew the account of forced vaginal penetration with the bag was false. Under cross-examination TJH admitted that she knew that the relevant part of her second statement was untrue, yet she had deliberately given false evidence that it was true and correct.
Counsel for the applicant submitted that much of TJH's evidence represented a substantial departure from the prosecution case as opened. The prosecutor was thus forced to acknowledge that TJH's evidence was unsatisfactory in a number of respects - indeed conceding in his final address that the jury could not rely on her evidence to convict on either of charges 9 and 23 (the alleged rape with the bag of ice) - while at the same time attempting to salvage her credit.
It is convenient at this point to pause and note the nature of the prosecutor's invitation to the jury not to act on TJH's evidence on charges 9 and 23. Charge 9 was a charge of common assault constituted by the applicant allegedly injecting TJH with ice. Based on TJH's first statement to police, the prosecution had opened that the assault had taken place on the side of the road on 2 January 2020 before reaching the campsite. In her evidence, however, TJH gave evidence of being injected at the campsite. As a result, in his final address the prosecutor told the jury the following:[51]

[86]

In written submissions, counsel for the respondent dealt with the five 'obstacles' relied upon by the applicant.
With respect to evidence of TJH's drug use, counsel for the respondent submitted that TJH admitted to being under the influence of prescribed medications and other drugs during parts of the relevant period, and accepted the possibility of experiencing delusions or hallucinations at the time of the alleged offending. These issues were, however, fully ventilated at trial, and the jury was properly instructed as to the risk of unreliability due to intoxication and mental state.
As to the wrist wound, the respondent's counsel submitted that a witness may be untruthful about one incident, or embellish certain facts, without all of their evidence being discarded as a result. While relevant, the changing nature of TJH's evidence in relation to the wrist injury was not dispositive of her truthfulness on other charges.
Concerning TJH's exit from the car, counsel for the respondent submitted that, while there 'may arguably be some implausibility about some aspects of the evidence on this issue', and accepted that TJH 'gave differing accounts about the speed of the car and injuries sustained when she escaped', these inconsistencies were explored in cross-examination and do not compel rejection of her evidence on all charges.
The respondent's counsel accepted that TJH initially had not said that her son, ST, helped to dispose of the stolen Commodore. Counsel submitted that her initial failure to mention ST's role does not compel the rejection of the entirety of her evidence.
As to charge 23, the respondent's counsel submitted that the change in TJH's version of events regarding the insertion of the bag of ice led the prosecution to invite acquittal on that charge. So much demonstrates the cautious and transparent approach of the prosecution, and the jury's discernment.
In oral argument, counsel for the respondent accepted that TJH had told deliberate lies - what she had said could on a number of matters not be excused as 'mere mistake' - about 'a number of important matters'. He also accepted that TJH was 'less than forthright' about her part in the theft of the Commodore and its disposal. Further, the respondent's counsel accepted - as had the witness - that during the relevant period TJH was 'adversely affected' by prescription medication and methylamphetamine. The prosecutor, counsel submitted, 'properly conceded areas where the witness had given an account which, on that particular issue, couldn't be safely relied upon', and had the jury 'focus their attention on matters that in his submission they could be'. Overall, accepting that TJH's evidence departed from the opening in a number of respects, counsel for the respondent submitted that those departures did not require the jury to discard the whole of TJH's evidence.
On a discrete matter, asked by a member of the Court to explain how the verdicts on charges 13 and 14 could be reconciled - given that the attempted rape upon which the jury convicted was followed almost immediately by a rape upon which the jury acquitted - the respondent's counsel submitted that a reasonable belief in consent might explain the verdicts. This submission was advanced notwithstanding that the defence had not put reasonable belief in consent in issue, the 'defence' being that the alleged activities founding the charges of rape had not taken place.

[87]

There can be no doubt that the jury were not prepared to accept TJH's evidence of the alleged offending as credible and reliable absent supporting evidence. As we have said, it is clear that the jury found the applicant guilty only on those charges upon which TJH's evidence improperly had the benefit of the supposed 'supporting evidence'. And as we have also said, aspects of TJH's evidence were so unworthy of belief that the prosecutor was compelled to adopt the unusual course of inviting the jury not to act on her evidence, and to acquit the applicant, on charges 9 and 23.
Prior to the applicant's trial, TJH had made two statements to police. The first was taken over a four hour period by Detective Douglas Fincher on 4 January 2020; and the second was made over two separate days to Detective Brendan O'Mahoney on 22 February and 27 February 2020. Between making her statements to police, on 5 January 2020 TJH was examined by Dr Phillipa Brook, a forensic medical registrar with the Victorian Institute of Forensic medicine, in the course of which she gave an account of various matters. TJH also gave evidence at a committal proceeding on 3 December 2020.
It is plain that there were many discrepancies and inconsistencies in the various accounts that TJH gave to police, to Dr Brook, and in her evidence at committal and at trial. Although some of those could, perhaps, be explained away as mere mistakes, or as innocent drug-induced hallucination or delusion, it is abundantly clear that many were the product of deliberate deceit.
An extremely serious untruth that she told, which resulted in a charge of rape, charge 23, was TJH's claim that the applicant had penetrated her with a bag of ice, when in truth she had penetrated herself. That was a lie that she told to police in her first statement, and to Dr Brook in the course of her medical examination. Moreover, she maintained the truth of that false claim in her second statement and when she gave sworn evidence at committal. The truth - which completely exonerated the applicant - only emerged in her evidence at trial. When cross-examined, and asked why she had given a false version to police and to the Magistrates' Court, TJH's response was, 'I don't know'. It may readily be inferred that, although TJH could provide no satisfactory explanation for her lies about the bag of ice, her purpose must have been to absolve herself of wrongdoing at the expense of incriminating the applicant in a serious crime.
Apart from her reference to the insertion of the bag of ice, TJH made no allegation that the applicant had sexually offended against her when she made her first statement. Allegations of sexual offending by the applicant did not emerge until TJH made her second statement. TJH subsequently gave sworn evidence at committal proceedings that, when she made her first statement, she had no recollection of having been raped. When challenged about that by counsel for the applicant at trial, TJH asserted that she could indeed remember the alleged rapes when she made her first statement, and that her evidence that she could not remember them at the time of the statement was not true. She could not explain, however, why she had lied about that matter in her evidence at committal.
Another very serious series of lies told by TJH related to the alleged circumstances of charge 6. In her evidence-in-chief at trial, TJH claimed that the applicant took a small shaving blade and 'made a small incision on his wrist, [and] we made a small incision on mine and rubbed them together and we were now blood brothers'. Under cross-examination, however, she agreed that she had not told police in her first statement that the applicant had cut her wrist whilst camping, instead claiming that the applicant had cut her wrist in her bedroom. More importantly, TJH agreed in cross-examination at trial that she had previously cut her own wrist, and had falsely blamed the applicant for something that she had done to herself.
With respect to TJH's wrist wound, and her false implication of the applicant, one passage of defence counsel's cross-examination of TJH at trial included the following:

[88]

Now, I want to ask you next about your self-harm history. I think I've asked you already and you agree that you had a history of self-harm?---Yes.

And the reasons for your self-harm have been discussed previously on many occasions with treating medical practitioners, correct?---Yes.

And self-harm has been used by you on a number of occasions, firstly as a way of removing yourself from a difficult domestic situation. That is, if you self-harm, you go into hospital, correct?---I did not self-harm at, over those years for that reason. No, I did not.

All right, and also, it's a way of emotionally controlling people in family, for example. That's one of the other reasons or that's another reason that you've self-harmed. Is that correct?---Yes, unfortunately, it does, yes, have an impact on them, yes.

Yes, and your history of self-harm well pre-dates the 2019 relationship with [the applicant]?---Yes, that's correct.

Yes. In 2019, you presented and underwent surgery on 4 November for a laceration to your right wrist, correct?---Ah, to, what date was that exactly sorry?

4 November 2019?---Um, it may have been around that time, yes.

At the time when [the applicant] was not living with you?---Yes.

You then presented on 26 November 2019 to a Dr Harrison and you presented to him in circumstances where the right wrist wound was open, was gaping I think was the description used?---Yes.

And you received treatment then from Dr Harrison, correct?---At the end of November?

26 November 2019?---Okay, yes.

You received a referral from Dr Lu who was one of your treaters at MedicAid medical clinic on 4 December 2019 for treatment in respect of your repeated self-harm attempts - or, not attempts, your repeated self-harm, correct?---Ah, are, are you saying that I did more or are you saying I was - - -

No, no, you - - - ?--- getting treated for the same one.

No, you got a referral - he gave a referral to have you seen by someone who was a specialist?---Oh, okay. Um, I, yes.

On 8 December 2019, you presented to Dr Hassan with wounds to the - parallel wounds to the anterior part of your thigh, parallel cuts where you received 13 sutures?---Yes.

And you told Dr Hassan that you had cut yourself in circumstances where you'd been cutting wood with a chainsaw and had an accident, correct?---Um, I don't recall saying that but okay, yes.

But the truth was that was another occasion where you'd harmed yourself, wasn't it?---Yes.

You received the 13 sutures, you were discharged, you picked the sutures out with your fingernails and represented on 20 December with infections of both your right forearm and your thigh, correct?---Um, is this still in November, sorry?

Yes, this is 20 December 2019 when you represented at the hospital?---No, that wasn't the, um - are you - I don't - you're referring - are you referring to the incision that I made, um, which I've - I've told you, um, the incision that I made on my leg? Is that what you're - you're referring to?

The leg and the wrist?---Yes, I - yes.

Yes, you picked out the stitches with your fingernails?---Um, okay, yes. Ah, yes.

And on 24 December 2019 you discharged yourself from hospital in circumstances where the treatment that you were to receive had not been completed, you self-discharged?---Okay, yes.

[89]

It also appears that, when taking the first statement, police had asked TJH about the wound on her wrist. She told them that the cut had been inflicted by doctors inserting a tube to clear a blockage in her lung following a stroke. TJH admitted under cross-examination that this was another 'complete lie', since the doctors had inserted a tube at her throat.
TJH had also given a false account of how she came to exit the car, shortly before being located by police. Thus, in her first statement she said: 'I can't believe I commando rolled out of the car today, it's amazing what a body can do when it needs to'. She also told Dr Brook that she had 'rolled' out of the car. When cross-examined at trial, however, TJH agreed that her claim that she 'commando rolled' out of the car was not true.
Apart from the false claim that she commando rolled from the car, other aspects of TJH's account of how she exited the car beggar belief. In her first statement, TJH told police that the car was travelling at such speed that she could not hold the door open because of the wind pressure. She claimed, however that eventually she was able to hold the passenger door open against the wind pressure with one hand, with her feet on the door sill, and launch herself forward. TJH told police: 'I leapt out and when I hit the ground I just rolled and rolled'. In cross-examination at trial, TJH agreed that this description was not true, and said it was an 'exaggeration'. And despite, on her version, hitting the bitumen road after leaping out of the car, TJH was remarkably injury free.
A view open on the evidence was that, rather than TJH being forced to ingest drugs over the four relevant days in January 2020, she was an enthusiastic participant in a drug-fuelled escapade with the applicant. As to that, when police asked TJH about her previous drug use in the course of taking her first statement from her, TJH had said that she 'once had a [cannabis] joint, but that's all'. When cross-examined by defence counsel at trial, TJH was taken to parts of her evidence at committal where she had admitted that, prior to camping with the applicant, she had used methamphetamine by eating and snorting it. Under cross-examination at trial, TJH maintained, however, that she had not previously used ice, and she had 'no idea' why she had given the evidence she had at committal.
When cross-examined at trial, TJH also conceded that at committal she had admitted using MDMA (ecstasy) on New Year's Eve, but claimed that she now could not recall doing so. She was taken to the results of a urine sample obtained from her by Dr Brook on 5 January 2020, which demonstrated cannabis and MDMA ingestion, together with the ingestion of several prescription medications, including diazepam and lignocaine. In the following passage of cross-examination, TJH admitted that her ingestion of a 'concoction' of drugs caused her to experience hallucinations and delusions:[52]

[93]

Beyond those discussed above, there were a number of other inconsistencies and discrepancies in TJH's various accounts that were exposed in cross-examination. It is unnecessary to set them all out, but one of importance related to TJH's description of being tied to the tree, the basis of charge 17. When making her second statement, TJH told police that the applicant tied her hands to the tree and tied the rope around her throat. Under cross-examination, TJH agreed that in her evidence she had not included the detail about the rope being tied around her throat. She said, 'it didn't happen, that's why I didn't tell you', and agreed that what she had told police was 'wrong'. Another discrepancy related to the circumstances of charge 2, in relation to which she claimed in her evidence at trial that she had been choked into unconsciousness, no such allegation having been made in her second statement.
Quite apart from TJH's various lies exposed at trial, the evidence otherwise suggested that she was a person of dubious honesty. She had helped dispose of the stolen Commodore - and covered up her son's role in it - and had admitted stealing groceries (including alcohol) in preparation for camping with the applicant. Moreover, it is clear that TJH had a motive for falsely implicating the applicant in criminal activity in order to excuse her own misconduct.
Bearing the foregoing in mind, we do not consider that it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the applicant's guilt on charges 7, 13, 17, 18, and 19. TJH's evidence lacked credibility to an extent that, when she was exposed in a lie - as she was on a significant number of occasions - she was unable to offer any explanation for why she had lied. Quite apart from the demonstrated lies that she told, other aspects of her evidence contained manifold discrepancies and inconsistencies, whether as a result of innocent mistake or deliberate deceit. Additionally, the probative force of her evidence must be seen as being significantly reduced by her drug use, which caused her to experience hallucinations and delusions. And clearly, the credibility and reliability of her evidence was tainted by her palpable concern to shift blame onto the applicant.
These factors in combination cause us to harbour a reasonable doubt about the applicant's guilt. Making full allowance for the advantages enjoyed by the jury, it is a doubt that the jury ought to have experienced. We are led to conclude that there is a significant possibility that an innocent person has been convicted. The Court is therefore bound to set aside the verdicts.

At a glance

Court

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Before

Source

Judgment (129 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (20)

Foster (a pseudonym) v The King [2025] VSCA 242 (2 October 2025)