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[2020] VSCA 310
General information, not legal advice.
Court of Appeal (Vic)
2020-12-03
Priest JA, Niall JA, Maxwell P
Original judgment source is linked above.
DPP v [Harmer] (Unreported, County Court of Victoria, Judge Murphy, 4 March 2019) (Conviction)
CRIMINAL LAW - Appeal - Conviction - Incest - Indecent act with a child under 16 - Whether verdicts unreasonable or unable to be supported having regard to evidence - Inconsistent verdicts - Whether acquittal on one charge inconsistent with guilty verdicts on remaining charges - Whether majority verdicts inconsistent with unanimous verdicts - Verdicts not inconsistent - Verdicts not unreasonable - Leave to appeal granted - Appeal dismissed - (2020) 376 ALR 478; (1996) 190 CLR 348; considered.
1 I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA. I agree with his Honour, for the reasons he gives, that both grounds of appeal as originally formulated - unreasonableness and inconsistent verdicts - must be rejected.
2 Unlike his Honour, however, I would also reject the specific challenge to the conviction on charge 2. I agree with Niall JA, for the reasons he gives, that the guilty verdict on that charge was reasonably open on the complainant's evidence.
3 Following a trial in the County Court, on 5 March 2019 the jury found the applicant guilty of 12 charges: seven charges of incest[2] (charges 2, 3, 7, 8, 9, 11 and 13) and five charges of committing an indecent act with a child under 16[3] (charges 1, 4, 5, 6 and 12). Six of those guilty verdicts were unanimous (charges 2, 4, 5, 6, 10 and 13), and six were by a majority (charges 1, 3, 7, 8, 9 and 11). By unanimous verdict, the jury also found the applicant not guilty of one charge of incest (charge 12).[4]
4 On 9 May 2019, the trial judge sentenced the applicant to a total effective sentence of 12 years and 10 months' imprisonment, with a non-parole period of eight years and six months.
5 The applicant now seeks leave to appeal against his conviction on two grounds, formulated as follows:
(a) the not guilty verdict on Charge 12 is inconsistent with the guilty verdicts on the remaining charges;
(b) the majority verdict of guilty on Charge 3 is inconsistent with the unanimous verdicts of guilty on Charges 2 and 4; and/or
(c) the majority verdict of guilty on Charge 11 is inconsistent with the unanimous verdict of guilty on Charge 10.
6 As will become clear, I am of the view that the conviction on charge 2 - which alleged incest by way of digital penetration of the vagina - cannot be supported by the evidence. I would therefore grant leave to appeal against conviction; allow the appeal (limited to the conviction on charge 2); set aside the conviction on that charge; and, pursuant to s 277(1)(c) of the Criminal Procedure Act 2009, substitute a verdict of committing an indecent act with a child under 16.[5] The appeal should otherwise be dismissed. My reasons for these conclusions follow.
7 So as to understand the issues raised by this application, it is necessary to say something of the evidence led at trial in support of the charges.
8 The applicant is the paternal grandfather of the complainant, 'RS', who was aged between nine and 12 years at the time of the alleged offending. RS was aged 13 when, on 26 February 2017, she took part in a VARE[6] with police. The VARE in effect constituted her evidence-in-chief at trial.
9 There were said to be eight separate 'incidents' of offending.
The first incident: Charge 1 - Indecent act (Majority verdict)
10 RS said that she and her brother had been riding on a lawnmower. She was aged nine years. The applicant said to her, 'I wanna [sic] touch your private parts'. The next day, the applicant and RS were on the couch watching football when the applicant exposed his penis and asked RS to grab it. She did so.
11 In the VARE, RS, described the alleged offending as follows:
The second incident: Charge 2 - Incest (Unanimous verdict); Charge 3 - Incest (Majority verdict); and Charge 4 - Indecent act (Unanimous verdict)
12 The second incident involved allegations that RS was having a bath when the applicant walked into the bathroom; lifted her out of the bath; sat her on a bench; spread her legs and used his fingers to rub around her vagina (charge 2 - incest), before bending down and licking 'all around' her vagina (charge 3 - incest) whilst masturbating (charge 4).
13 RS described the incident in the VARE as follows:[7]
The third incident: Charge 5 - Indecent act (Unanimous verdict) and Charge 6 - Indecent act (Unanimous verdict)
14 The third incident involved an allegation that the applicant asked RS to help him make his bed; closed the bedroom door; pushed her onto the bed; and masturbated in front of her (charge 5 - indecent act), before ejaculating on her stomach (charge 6 - indecent act). RS was aged nine or 10 at the time. On this occasion, the applicant allegedly also asked the complainant to put on a G-string, and asked her to touch herself while he took photos of her.
15 In the VARE, RS described the activities making up the third incident as follows:
A Like, I don't remember it was just so quick to happen. It was, like - I dunno, it just sorta like came out of his dick.
The fourth incident: Charge 7 - Incest (Majority verdict) and Charge 8 - (Majority verdict)
16 The fourth incident allegedly occurred when the complainant was reading a book in the guest room. RS alleged that the applicant shut the door; threw the book away; pushed her onto the bed; pulled down her pyjamas; and knelt beside her. He then digitally touched and penetrated her vagina (charge 7 - incest), and also licked the complainant's vagina (charge 8 - incest).
17 In the VARE, RS described the incident as follows:
The fifth incident: Charge 9 - Incest (Majority verdict)
18 Charge 9 was part of the fifth incident. RS alleged that she was coming out of the bathroom, not having dried herself, when the applicant threw her onto the bed, knelt on the floor, and licked her vagina.
The sixth incident: Charge 10 - Indecent act (Unanimous verdict) and Charge 11 - Incest (Majority verdict)
20 The sixth incident allegedly occurred when RS was having a bath and the applicant walked in wearing a robe. He removed the robe, exposed his penis, and told the complainant to touch it. He grabbed her hand and got her to masturbate his penis, until it was erect (charge 10 - indecent act), before grabbing the back of her head and pushing her head onto his erect penis, penetrating her mouth (charge 11 - incest).
The seventh incident: Charge 12 - Incest (Not Guilty - Unanimous verdict)
22 Charge 12, which resulted in an acquittal, was based on the complainant's account in the VARE that she told the applicant that she liked Nutella, and that he responded 'come over here and I'll show you this'. He then took the complainant to the bedroom and shut the door. The applicant then took out his penis, which had Nutella on it, and said 'taste this', but that she had to 'put it all in [her] mouth'. RS said that she did so for approximately two minutes, then stopped.
23 In the VARE, RS described the 'Nutella incident' as follows:
The eighth incident: Charge 13 - Incest ( Unanimous verdict)
24 The final incident occurred round the time that RS and her two brothers had been playing Monopoly on the balcony. Her older brother, having lost the game, went back inside, followed by her younger brother. The applicant then allegedly put his hands down the complainant's pants and put his finger in her vagina.
25 RS described the incident in the VARE as follows:
Some aspects of the complainant's evidence under cross-examination
26 Under cross-examination, RS agreed that she had told a teacher, Ms Garneau, that her brother had 'more than once' come into her room naked. When her mother called the police, however, she lied to protect her brother, and said that it did not happen. She lied because she did not want her brother 'taken away or anything'.
27 In other cross-examination, defence counsel took RS to an 'Apple notes' entry, dated 24 April 2018, recovered by police from the complainant's iPad. It was in the following terms:[8]
i never quite understand why no one really cares about me, like people.
once when i was seven, i have a clear memory of it too, my little brother and my big brother were on the lawnmower, and i wanted to go on too. but i didn't, because my granddad (let's call him by his name, ['dean']), said no, "it's not for girls" and the first thing that came to my head was, it's a lawnmower?? how isn't it for girls?? but i got over that, i just sat on his grass and looked for a four leaf clover, like i always did, and with my luck, i actually found one, i thought that it was gunna be my lucky day, but things happened with [dean] and shit turned for the worse.
i don't remember exaclly what i was wearing but i do remember that i had shorts on, and he went to pull down my shorts because they were 'too high' and i looked weird or something, but he pulled them really down? like full view of my undies, i went to pull them up so my brothers an him wouldn't see, but he stopped me, he said "let's go back inside" and he carried me inside, and that's when shit got real, i freaked out.
he chucked me onto his bed, walked out and shut the door behind him, i didn't know what to think, was he going to kill me? i didn't know what rape was when i was seven, but shortly learnt. he said something to the boys i think, but they stayed out there for what felt like hours, because i couldn't see them, or anyone for that matter.
i can't remember if he was dating [female name] or [female name] at that point . i just know i really wanted them to come home, so i could tell them everything that happened, and ask them what he was doing. i mean i was freaking out. why wouldn't i tell anyone. here's the catch. as soon as i was thinking about that, he came in, locked the door behind him, and fully took off my pants. "what are you doing?" "nothing' just let it happen" he said as he continued to undress me and himself. i was so scared
"what are you doing to me?" "keep fucking talking and see what happens" i didn't know what to do, i felt everything crash down. and i was ready to die. i literally felt like dying
"wanna see something" he smirked. i was too scared to talk, too scared to move.
he was almost naked when [her brother] knocked on the door, he saved my life. or what i thought, i wanted to tell my mum and just cry, but he told [her brother] that he would be out in a second, while he was getting redressed, he said these exact words to me. "if you tell anyone about this, i will slit your throat and kill your family" which of corse i didn't want my throat silt
28 Complaint evidence was received from several sources.
29 Jenny Roberts was a teacher. She gave evidence that, in February 2017, RS spoke to her at school. RS said she had been sexually abused by her paternal grandfather between the ages of seven and 10. She said her grandfather would touch her in the genital region 'and she said she would touch him as well'. Ms Roberts reported what she had been told to the school welfare co-ordinator and to 'DHS'. Under cross-examination Ms Roberts agreed that she had been reluctant to believe RS
because she was very matter of fact about what she was saying, no other reason than that. She wasn't emotional when she was talking to me.
30 Another teacher, Sarah Garneau, gave evidence that in September 2016, RS approached her and told her of an incident two days previously involving her brother, 'BS'. RS told Ms Garneau 'that she was in bed and that he came into her room and he was naked and that she screamed out and asked him to move away from her, and then her mum came in after that'. Her brother, RS said, had 'lay on top of her'. Police had been called. RS said 'that this had happened before, um, and that she had lied to protect him before'. After that, RS's mother 'had put locks on her bedroom door'. RS also told Ms Garneau that 'an incident had occurred with her [paternal] grandfather'. She said that she had been to her grandfather's house with her brothers and that 'they had been sent home and that she remained at the house and he came into her bedroom, lay next to her, and asked her to do things to it'.
31 John Nicol, a student welfare co-ordinator, gave evidence that he became aware in late February 2017 that RS was making allegations against her grandfather.
32 Georgia Clark, a youth leader, gave evidence that, at a retreat in September 2016, RS told her that between the ages of nine and 12 she 'had been abused by someone in her family'. Her 'specific words were actually that she had been touched inappropriately' by her grandfather. Under cross-examination, however, Ms Clark agreed that in evidence in committal proceedings she had said that RS did not reveal the identity of the family member who had abused her.
33 'EW', the complainant's mother, gave evidence that her children began staying regularly at the applicant's home - 'probably about once a month' - in 2011. On 22 February 2017, RS 'said that her Pop had been touching her' sexually. Later that evening, she telephoned the applicant and said, 'I know what you did and I want to kill you'. Police then telephoned her saying that the applicant had contacted them about a threat she had made to him. EW then told police of her daughter's complaint.
34 Detective Senior Constable Nicole Baxter was attached to SOCIT (Sexual Offences and Child Abuse Investigation Team). On 22 February 2017, she became aware that the applicant had reported to police that he 'had received an abusive phone call from [EW]'; and that, when contacted by police, EW told them that the applicant 'had sexually assaulted her daughter'. Detective Baxter then commenced an investigation.
35 On 26 February 2017, Detective Baxter conducted a VARE interview with RS. EW refused Detective Baxter permission to speak to the complainant's brothers. A month later, on 27 March 2017, police executed a search warrant on the applicant's premises and seized an Apple iPhone 5, an Apple iPad, a HP laptop, an Imitation CD disc, a portable hard drive, a USB and a 'black lady's G-string'. Detective Baxter then conducted a recorded interview with the applicant. Further investigation located no photographs of RS wearing a G-string on the seized electronic devices. No forensic testing of the G-string for DNA was conducted.
36 The applicant told police that he married his current wife on 12 March 2016 - she had moved into his residence in 2012 - his relationship with his previous wife having ended in 'about 2011'. He said that his relationship with his son, 'SS', the complainant's father, whom he had not seen since June of the previous year, was a 'roller-coaster'. The applicant described his son's unpleasant behaviour over dinner the previous June, and a physical altercation that they had.
37 RS, the applicant said, is 'a strange one'. He denied doing 'anything to her'. The applicant told police he was 'thinking well maybe someone did something to her and I'm gunna be the fall guy'. When told by police it was 'a good time to bring up' his 'defence' to the allegations, the applicant said
there's six, seven, eight reasons why she might conjure something like this up, she's told a story got carried away, couldn't reverse it. I've gone through it a million times. I don't know. If I had an answer I'd love to be able to say to you that's why.
38 The applicant said he was 'very rarely' alone with RS, who had accused her brother 'of doing the same thing'. EW had told him that the complainant's brother 'had been touching her up, and - and rubbing on - and doing all these sexual things to her'. When asked specifically whether RS had 'displayed any sexualised behaviour in front of [him]', the applicant said:
When she was about 10 she called me into the bathroom, she had clearly being masturbating. I said to her, 'It's about time you had a chat to your mother'. She said, 'If you tell my mother I'll tell her you've been doing it'. From that day I was shitting myself. I thought that's how easy something can be turned.
39 When taken through each alleged incident of sexual misbehaviour, the applicant denied any wrongdoing. It is unnecessary to set out the detail. The applicant told police that his grandchildren's visits were 'spasmodic', and that the house was too small for the alleged misconduct to have occurred. His wife was home most nights, and he could not imagine where everyone else was whilst the alleged sexual offending was said to have been taking place.
40 Before turning more generally to the contention advanced under cover of ground 1 that all of the guilty verdicts are unreasonable or cannot be supported having regard to the evidence, it is convenient first to consider the verdict on charge 2, which, it seems to me, calls for discrete examination.
41 In the course of oral argument, and after some prompting by a member of the Court, counsel for the applicant submitted that - quite apart from the combination of factors relied upon to impugn all of the guilty verdicts - the evidence on charge 2 simply could not support a finding beyond reasonable doubt that the complainant's vagina had been penetrated.
42 Initially, it seemed that counsel for the respondent was minded to concede that the evidence was insufficient to support a finding of penetration. At the prompting of another member of the Court, however, the respondent's counsel appeared to reconsider the incipient concession, and was given leave to file a supplementary written submission. In the result, the respondent's counsel submitted in writing that there was evidence sufficient to support a finding of penetration.
43 As I earlier indicated, I am of the view that the available evidence on charge 2 could not support a finding that the complainant's vagina had been penetrated by the applicant's finger.
44 At the time of the alleged offending, sexual penetration was defined in s 35(1) of the Crimes Act 1958 to include 'the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person'; and vagina was defined as including the external genitalia.
45 When describing the activity said to support charge 2, RS agreed that the applicant had 'played with [her] vagina with his fingers', and said that he 'just, like, rubbed his fingers, like, all around, I guess'.[9] In my view, there was nothing in this account from which it could be concluded beyond reasonable doubt that the applicant's finger penetrated the complainant's external genitalia. The complainant's description that the applicant 'rubbed his fingers ... all around' her vagina is far too vague and imprecise to support a finding to the criminal standard that there had been penetration. To my mind, that description cannot support a finding that there had been penetration of the external genitalia.
46 The complainant's description of the activity related to charge 2 may be contrasted with her description in the VARE of the activity founding charge 7, in which she said that the applicant touched her vagina with his fingers, 'and eventually they went in the vaginal hole'. She said that the applicant's fingers 'were going all around' her vagina - a similar description of the activity on charge 2 - before he put his fingers in her 'vaginal hole'.[10] Similarly, when describing the activity founding charge 13, RS said the applicant 'was trying to get it in [her] vaginal hole again', and did 'put his finger in [her] vagina hole'.[11] Hence, for the purposes of charges 7 and 13, RS unequivocally and unmistakably described 'sexual penetration'.
47 It is also instructive to contrast the complainant's version of digital-vaginal touching with her descriptions of lingual incest. Thus, in relation to charge 3, RS said that the applicant 'licked everywhere ... just around [her] vagina', 'over one of the holes' - not the 'pee hole' but the 'vagina hole' - and went 'up and down against the hole' and 'on the outside of the hole'.[12] And for the purposes of both charge 8 and charge 9, RS said that the applicant licked her 'vaginal hole'.[13] Quite clearly, for the applicant to have licked the 'vaginal hole', his tongue must have penetrated the external genitalia.
48 Counsel for the applicant at trial did not make a 'no case' submission on charge 2. That fact, however, is not an obstacle to success on appeal, since this Court must allow an appeal against conviction if 'the verdict of the jury is unreasonable or cannot be supported having regard to the evidence'. Notwithstanding the failure of counsel at trial to submit that there was no case to answer on charge 2, the Court simply cannot countenance the applicant's conviction for such a serious crime when the evidence is so lacking.
49 Since it was not open to the jury to be satisfied beyond reasonable doubt on charge 2 that penetration had taken place, the incest conviction on that charge must be set aside. But since it is clear that the jury must have been satisfied beyond reasonable doubt that the applicant at least touched the complainant's external genitalia with a finger or fingers, it is appropriate to substitute a conviction for committing an indecent act with a child under 16. In those circumstances, it will be necessary to resentence the applicant.
Ground 1: Are the verdicts unreasonable or unable to be supported having regard to the evidence?
50 There are, the applicant's counsel submitted, 13 reasons why the Court should conclude that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence. In summary, they are:
• first, the case against the applicant rested entirely upon the evidence of RS, yet her version was riddled with 'internal inconsistencies';
• second, the 'Apple notes' document written by RS 'reads like a story' and contains allegations substantially different from her earlier accounts;[14]
• fourth, the complainant's evidence contained a number of 'embellishments' and 'acknowledged lies';
• fifth, the jury did not accept the complainant's evidence concerning the 'Nutella' incident;[15]
• sixth, RS had been involved in 'attention-seeking' behaviour;
• seventh, the complainant's behaviour was inconsistent with that of someone who had been sexually abused;
• eighth, the complainant's evidence was not corroborated by any other evidence, in circumstances where corroboration might be expected if her evidence was truthful and reliable;
• ninth, the complainant's account was 'implausible', given that the applicant's home was very small, and, on her own account, there were 'always people around';
• tenth, there was a history of significant 'discord' between the applicant and his son, the complainant's father;
• eleventh, it was the applicant who reported the allegations to police after being threatened by the complainant's mother;
• twelfth, the applicant made 'strong denials' in his record of interview with police; and
• finally, the applicant was a man of good character.
51 None of the thirteen factors relied upon by the applicant's counsel lead me to the view that the jury must have entertained a reasonable doubt about the applicant's guilt.
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence,[18] in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
53 As is clear from Pell, for the purposes of this case the Court must assume that the jury assessed the evidence of RS to be credible and reliable. The Court must then examine her evidence to see whether - despite the jury's assessment that she was credible and reliable - it reveals inconsistencies, discrepancies or other inadequacies, such that the Court is satisfied that the jury, acting rationally, should have entertained a reasonable doubt about guilt. As part of its examination of the record, the Court must also consider the other evidence in the case, to see whether - notwithstanding the jury's assumed assessment that the complainant's evidence was credible and reliable - the jury, acting rationally, should have entertained a reasonable doubt about guilt. Of course, the examination of the complainant's evidence, and the other evidence in the case, is not to be undertaken in a piecemeal fashion, the combined effect of the evidence being important. Thus, in Pell, although it had to be assumed that the jury assessed the complainant's evidence to be credible and reliable, the 'compounding improbabilities' caused by other unchallenged evidence in the case required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt on particular charges.[19]
54 Turning to consider the factors relied upon by the applicant's counsel, it may be acknowledged at the outset that the applicant had previously been of good character. As a result, in his charge the judge gave the jury conventional directions that the applicant's good character could be used when assessing the credibility of his denials in the record of interview, and as bearing on the unlikelihood of guilt. There is no reason to think that the jury did not understand or fail to apply those directions, including when assessing what were said to be the applicant's 'strong denials'. Self-evidently, however, the applicant's good character could not be determinative of the jury's assessment of his denials, or, ultimately, his guilt. At the risk of stating the obvious, history is littered with examples of people of previous good character committing sexual (and other) offences.
55 Moreover, as cases such as Hughes[20] demonstrate, men of otherwise good character have been known to commit sexual offences against children brazenly, in circumstances of high risk. Thus, the fact that the applicant's home was 'tiny', and, on the complainant's account, there were 'always people around', did not necessarily render RS's version of events implausible. These were factors that the jury was readily capable of weighing in the balance.
56 So, too, would the jury readily be capable of evaluating the effect of the applicant having gone to police to report EW's threat. It was open to the jury to consider that it was borne of a desire pre-emptively to portray himself as the victim. Indeed, that is the way the prosecutor put it to the jury in her final address:
And you heard evidence from [EW] that there was a dinner to celebrate [BS's] birthday that evening, the family was going to be there together with his girlfriend. Her evidence was that before they went to the restaurant, she telephoned [the applicant] on his mobile phone and said, well, made a threat essentially.
Later that evening, same evening, [the applicant] goes to the police. He goes to the police ... to report the threat made by [EW] and said he feared for his safety. That of course, triggers the police investigation. So, this comes about as a direct consequence of the action of [the applicant] in going to the police. One submission from me, members of the jury, could it be that going to the police might amount to, what might be considered a pre-emptive strike? Because it's clear, clear to [the applicant] by that stage, that [EW] knows about - that there are allegations.
It's just a matter for consideration, there's no evidence of that at all, but lest it be submitted that he's gone to the police himself because he has nothing to hide, there is potentially another spin that could be put on that. ...
57 With respect to suggested inconsistencies, the applicant's counsel submitted that the complainant's version was riddled with internal inconsistencies as to dates, the description of events and other matters. I need not recount the supposed inconsistencies in any detail. It is enough to say that they were fully exposed for the jury's scrutiny - being the subject of cross-examination and argument - and that the jury was capable of evaluating their effect on the complainant's credibility and reliability. None of them struck me as so compelling that they must have led the jury to reject the major threads of the complainant's evidence.
58 In order to gauge the force of the argument concerning the supposed inconsistencies, however, it is worthwhile examining one which the applicant's counsel appeared to put at the forefront of their submissions. Thus, counsel submitted that the Apple notes document[21] - created on 24 April 2018 for reasons unknown and modified on 11 May 2018 - contained allegations which were substantially different to those that she had made in her VARE on 26 February 2017. The note asserted that an incident occurred when the complainant was seven, when the applicant 'chuck[ed]' her on the bed and 'fully' took off her pants, before saying 'if you tell anyone about this, I will slit your throat and kill your family.'
59 Notably, so counsel submitted, RS did not at any stage report a threat to kill to police or to the 'complaint' witnesses. Furthermore, the account in the note was broadly similar to the complainant's description of an 'uncharged' incident occurring on the lawnmower.[22] During cross-examination, however, when asked whether there were two incidents involving the lawnmower, the complainant said 'no'. But when the inconsistencies between the two accounts were put to her, RS gave evidence that 'there were other times on the lawn ... I remember being two times on the lawn but not all of them surrounded the lawnmower.' This, counsel submitted, was despite the fact that the 'Apple notes' document specifically referred to a lawnmower, and that, when asked by the prosecutor at the special hearing whether she would like to 'add anything' to the VARE, RS answered 'no'. Counsel for the applicant submitted that these passages 'demonstrate the complainant's ability to attempt to mould her evidence - albeit in this instance unconvincingly - to try to explain discrepancies pointed out to her'.
60 With respect to these suggested inconsistencies, the respondent's counsel drew attention to the fact that the complainant gave evidence that the incident described in the Apple notes document was on a different occasion to the 'lawnmower' incident described in her VARE. When asked about that in cross-examination, the complainant said that she did not mention this incident because she had forgotten about it when the VARE was being conducted. It is hardly surprising, counsel submitted, that RS might not accurately recall every occasion of sexual offending given that she was young at the time of the offending and at the time of the complaint to police. Importantly, RS confirmed that the occasion described in the Apple notes document was not a fiction.
61 In my view, if there are any inconsistencies between the Apple notes document and the VARE, these were matters that the jury was fully capable of understanding and assessing. To my mind, these supposed inconsistencies are not of much moment. I agree with the submission of the respondent's counsel, given her age, it is not surprising that RS might not accurately recall every occasion of sexual offending.
62 Another factor that counsel for the applicant put at the forefront of their submissions was the 'bizarre' allegations concerning the 'Nutella incident', which even the prosecutor in her final address described as 'really bizarre' and 'seriously weird'. Counsel submitted that the jury must have rejected the complainant's evidence, and that such rejection should have had a material effect on her overall credibility and reliability. I do not accept that this is so. It cannot be said that the jury's verdict on charge 12 necessarily means that the jury disbelieved RS. The verdict may mean no more than that the evidence engendered a reasonable doubt in the jury's collective mind.[23] For my part, having regard to some of the grotesque sexual offending that the Court is accustomed to encountering, sadly I do not consider the Nutella incident as described by RS to be particularly outlandish.
63 As to what were said to be other 'embellishments' and 'lies', once more I consider that the jury were readily capable of assessing their effect on the complainant's credit. It is unnecessary to go through them all. One that was given particular prominence by the applicant's counsel, however, involved the complainant's brother, BS, coming into her room naked and lying on her bed.[24] Having complained to others that her brother had done so, RS lied to the police and told them that he had not. Her explanation in cross-examination for the lie - 'I didn't want to lose [BS] or I didn't want him to, like, get taken away or anything' - may have struck the jury as being entirely plausible, particularly given the complainant's age. I cannot see that it necessarily must have impinged upon her credit.
64 Further, I am unable to see that the complainant's supposed 'attention-seeking behaviour', or any other of her behaviour, necessarily must have affected her credit adversely. Thus, by way of example, I cannot see that the fact that RS was a bridesmaid at the applicant's wedding in March 2016 - shortly prior to the end of the alleged period of offending - could be said to be particularly incongruous or counter-intuitive. Common experience suggests that sexually abused children behave in a variety of ways, and are not necessarily outwardly antagonistic to their abusers.
65 As to the lack of corroboration (where, it was submitted, it might be expected), common experience also is that the lack of any supporting evidence is far from unusual in cases of sexual offending involving a single complainant. In the present case, the applicant's counsel drew attention (among other things) to the fact that no photographs of RS in a G-string were found upon forensic examination of the applicant's telephone,[25] and that BS was not called to give evidence relevant to charges 7 and 8 that he had knocked on the door and said, 'Are you guys having sex?'.[26] It would not have been lost on the jury, however, that the forensic examination of the applicant's telephone took place three or more years after the photographs were allegedly taken, or that BS was very young when he was said to have knocked on the door and made his inquiry. The lack of corroboration - not only with respect to these matter, but others also[27] - could not dictate that the jury must have had a reasonable doubt concerning the applicant's guilt.
66 Finally, I should observe that there appeared to be no substance whatsoever in the submission that RS made her allegations against a backdrop of family discord. At no time was it suggested to RS that she had been put up to make false allegations by her disgruntled father, SS, or that she had concocted her evidence to please or appease him.
67 As I have indicated, I am not persuaded that any of the factors relied upon by the applicant's counsel - alone or in combination - should have led the jury to have a reasonable doubt about the applicant's guilt on the charges upon which convictions were returned.
68 Save with respect to the verdict on charge 2 - which stands in a different category to the other charges resulting in guilty verdicts - the first ground cannot be upheld.
Ground 2(a): Is the conviction relating to the 'Nutella incident' inconsistent?
69 Counsel for the applicant submitted that, as in Conolly, the jury's acceptance of the complainant's credibility and reliability was a necessary prerequisite to conviction on each charge.[28] Although credit may not be 'a homogeneous and indivisible whole',[29] counsel contended that in the circumstances of this case no reasonable jury could have drawn a distinction between the complainant's reliability and credibility regarding charge 12 and the remaining charges. (Similar submissions were made with respect to charge 3 on one hand, and charges 2 and 4 on the other; and with respect to charge 11 on one hand, and charge 10 on the other.)
70 Counsel for the applicant submitted that, in circumstances where the jury acquitted the applicant (unanimously) on charge 12, the Nutella incident, but convicted him on the remaining 12 charges (six of the guilty verdicts being by majority), the jury's verdicts are 'factually inconsistent'.[30] There was, counsel submitted, no logical distinction to be drawn between the complainant's credibility and reliability with respect to charge 12, and her credibility and reliability with respect to the other allegations that she made. Hence, the inability of the jury to accept the complainant's evidence on charge 12 should, as a matter of logic, have precluded the jury from being satisfied beyond reasonable doubt of the complainant's credibility and reliability on the remaining charges.
72 In MacKenzie, Gaudron, Gummow and Kirby JJ set out six general propositions concerning inconsistent verdicts. I need refer only to the third, fourth and fifth propositions:[31]
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone_[32]_ is often cited as expressing the test:[33]
"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.[34] Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.[35] If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[36] In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.[37] Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries.[38] The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation.[39] Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman,[40] in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."
We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty.[41] ...
73 In his charge, the judge directed the jury that each charge on the indictment had to be considered separately. Among others, the judge gave the following instructions:
As I said to you at the start of the trial there are 13 counts against the accused. ... [T]here are 13 separate charges, and you must consider them separately, and you are not apply to a job lot in relation to them. And the accused and the prosecution are entitled to have you consider each charge separately on its own, but obviously your assessment of the complainant in relation to each charge is relevant to the other charges. But you have got to be satisfied beyond reasonable doubt that the prosecution has proved the charge against the accused man beyond reasonable doubt in relation to each charge as you consider it separately.
74 In my view, the verdict of not guilty on charge 12 is consistent simply with the jury having 'followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt'.
75 Both the prosecutor and defence counsel gave charge 12 particular attention. Thus, in her final address the prosecutor said:
I just want to make this submission in relation to this particular incident: this, on any view, is a really bizarre allegation. I just want to make this submission, members of the jury. The modes of sexual offending are almost infinite, and they are dependent, I would suggest, on opportunity plus means and the limits of the offender's imagination. Now that's not evidence, it's just a submission from me. This is, on any view, seriously weird. But that does that mean that it's necessarily untrue? That is for you to determine.
76 And defence counsel, having referred to parts of the VARE relating to the Nutella incident argued as follows:
... So the scenario that she's painting that the breakfast bar at this small house in [name], [the applicant] asks her what she wants on her toast, and she says, 'Nutella'. But according to her, he's already got Nutella on his dick.
How does that happen? If she'd said jam or peanut butter, it wouldn't have happened? Test that. Test that. Does that pass the test in terms of an allegation you could accept beyond reasonable doubt?
77 It seems to me that the premise that underpinned the submissions of the applicant's counsel on charge 12 is that the jury must positively have disbelieved the complainant's evidence, and, as a matter of logic, that assessment of her lack of credibility and reliability necessarily must have carried over to their consideration of her evidence on the other charges. An aspect of that premise was the notion that, in effect, acting reasonably the jury would have had to have embraced all of the complainant's allegations, or none of them. In my view, however, that premise is fallacious. As I have said, their acquittal of the applicant on charge 12 does not necessarily indicate that the jury positively disbelieved the complainant's evidence. The verdict may mean no more than that, given the unusual circumstances of the alleged offending, the jury were prepared to entertain a reasonable doubt as to guilt on that particular charge.[42] Looked at in this way, it is obvious that the verdict may be the product of logic and reason.
79 Given these conclusions, I am relieved of considering whether the combination of ss 4A(1)(b) and (2) of the Jury Directions Act 2015 required the Court's reasoning on this ground to be consistent with the provisions of s 44F of the Act.
Ground 2(b) and (c): Is there inconsistency between majority and unanimous verdicts?
80 Majority verdicts were first introduced in this State by s 7 of the Juries (Amendment) Act 1993, inserting s 47 into the Juries Act 1967. The legislature's stated reasons for the introduction of majority verdicts are to be found in the Second Reading speech to the Juries Amendment Bill:[43]
The government believes the requirement of a unanimous verdict is a potential source of expense and unfairness where a single, determined juror holds out doggedly and for peculiar or improper reasons against the common view of the remaining 11. A hung jury will lead either to a retrial or, on rare occasions, to a decision by the Director of Public Prosecutions to discontinue the prosecution. The first outcome is an unjustifiable waste of public money, especially when the trial has been long and expensive. Many may see a decision to discontinue a prosecution in these circumstances as unjust. Majority verdicts, which have been introduced in the United Kingdom and several other Australian States do not eliminate the chances of this happening, but they significantly reduce them. They strike an appropriate balance between the principle that guilt should be determined beyond reasonable doubt and the need to manage courts efficiently and fairly.
81 Turning to the arguments, the submissions advanced by the applicant's counsel in support of ground 2(b) and (c) were, it must be said, novel.
82 Under cover of ground 2(b), counsel for the applicant submitted that charges 2, 3 and 4 related to different acts during a single incident. Inexplicably, however, so counsel submitted, the jury delivered unanimous guilty verdicts on charges 2 and 4, but a guilty verdict by a majority on charge 3. Thus, so counsel submitted, one juror was not satisfied beyond reasonable doubt of the applicant's guilt on charge 3 (which involved alleged lingual-vaginal penetration), yet purported to be satisfied of his guilt on charges 2 and 4 (respectively involving digital-vaginal penetration and masturbation). There was no logical basis for these conclusions, given that the alleged lingual penetration was said to have occurred immediately after the digital penetration and masturbation in the course of a single incident.
83 In a similar vein, in support of ground 2(c) counsel submitted that the jury returned a unanimous guilty verdict on charge 10 (indecent act involving touching), but delivered a guilty verdict by majority on charge 11 (incest by oral penetration). Those verdicts, counsel submitted, cannot be explained on a rational basis, given that both charges arose from different acts during the same alleged incident, and were described in a similar manner by the complainant. The factual basis for charges 10 and 11 were so inextricably linked that it cannot be said that there is any rational basis for distinguishing between them based on the credibility and reliability of the complainant.
84 Counsel for the applicant acknowledged that the decided cases on appeal involving complaints of inconsistent verdicts hitherto have related to claimed inconsistencies between verdicts of guilt and acquittal, but submitted that the underlying rationale which justifies the allowance of such appeals applies equally to inconsistencies between majority verdicts and unanimous verdicts. Counsel submitted that there are no 'hard and fast rules' as to the circumstances in which verdicts will be held to be inconsistent.[44] Finally, counsel submitted that the verdicts in this case presents as 'an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty'.
85 I do not accept these submissions. The principles that inform the resolution of alleged inconsistency between contemporaneous verdicts of guilty and not guilty cannot apply equally to unanimous and majority verdicts of guilty. A situation where a jury returns a mixture of guilty verdicts, some unanimous and some by majority, is a far cry from the factual inconsistency that can arise from time to time where a jury unanimously convicts on one charge, and unanimously acquits on another, in circumstances that cannot rationally be explained.[45]
86 Section 46(2) of the Juries Act 2000 provides that if a jury, having deliberated for a period of time that the court thinks reasonable having regard to the nature and complexity of the trial, has been unable to agree on its verdict, or has not reached a unanimous verdict, the court may 'take a majority verdict as the verdict of the jury'.
87 Hence, the verdicts of guilty returned on charges 2, 3, 4, 10 and 11 are the verdicts 'of the jury', no matter that one juror - not necessarily the same juror - has been unable to join with his or her fellow jurors in relation to the verdicts on charges 3 and 11. In my opinion, the fact that one juror could not be satisfied beyond reasonable doubt of the applicant's guilt on charges 3 and 11 cannot diminish the legitimacy of the verdicts on those charges. Indeed, one of the main purposes for tolerating majority verdicts is to deal with situations such as 'where a single, determined juror holds out doggedly and for peculiar or improper reasons against the common view of the remaining 11'; or where a single juror, being true to his or her oath or affirmation, is unable conscientiously to join in the verdict of the majority.
88 I am unable to see that the circumstances of this case permit the inference to be drawn that a single, determined juror held out doggedly and for peculiar or improper reasons. The circumstances are equally consistent with a single juror being unable to bring himself or herself as a matter of conscience, and for entirely proper reasons, to join in the verdict of the other jurors. But in any event, even if it could be inferred that a lone dissentient had refrained from joining in the verdicts of other jurors for illogical or improper reasons, it does not follow that the verdict 'of the jury' is thereby tainted. To so conclude would be to undermine the policy which is the foundation of s 46(2), given that majority verdicts exist to ameliorate the mischief thought to flow from a single juror holding out against his or her fellow jurors.
90 I would grant leave to appeal against conviction; allow the appeal, limited to the conviction on charge 2; set aside the conviction on charge 2; and substitute a verdict of committing an indecent act with a child under 16. The appeal should otherwise be dismissed. I would resentence the appellant on charge 2 to 18 months' imprisonment, and order that three months of that sentence be served cumulatively with the sentence on charge 11. The total effective sentence would thus be 12 years and six months' imprisonment, upon which I would fix a new non-parole period of eight years and three months.
91 I have had the advantage of reading in draft the reasons for judgment prepared by Priest JA in this matter. His Honour has concluded that the convictions on all of the charges for which the applicant was found guilty, other than charge 2, must stand and the challenge to those convictions must be rejected. I agree with those conclusions for the reasons given by Priest JA. With respect to charge 2, however, I am unable to agree that the evidence was insufficient to sustain a finding of penetration. In my opinion, when regard is had to the evidence as a whole, there was sufficient evidence to convict the applicant on charge 2. In the result, I would grant leave to appeal but dismiss the appeal.
92 Charge 2 alleged that the applicant took part in an act of sexual penetration with his granddaughter by introducing his finger into her vagina. This constituted the offence of incest contrary to s 44(1) of the Crimes Act 1958. At the relevant time, 'sexual penetration' was defined by s 35(1) of the Act to include 'the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person'. The 'vagina' was defined as including the external genitalia.
93 In Anderson v The Queen,[46] Weinberg JA said:
As soon as there is any penetration by a finger into any part of the vagina as defined, no matter how slight, and no matter how fleeting, and when accompanied by the requisite intention, the offence is converted from an indecent act, into an act of sexual penetration.[47]
94 As this Court recently observed, 'if there was evidence of penetration to any extent beyond the outer lips of the complainant's vagina - the labia majora - that evidence would establish the element of penetration.'[48] In Harrison, the complainant said in cross-examination in respect of one charge that 'there was no penetration of any form or any way' but also said in re-examination that the accused's penis had touched 'between [the labia].'[49] In respect of another charge, the complainant said that the accused had touched her with his finger 'in between the labia.'[50] This latter evidence was sufficient to support convictions for sexual penetration.[51]
95 The only evidence of penetration came from the complainant. The account she gave in the VARE is set out in the reasons of Priest JA and need not be repeated in full. In what follows I assume a familiarity with the evidence as set out in the reasons of Priest JA.
96 Charges 2, 3 and 4 all related to the same incident and occurred over a very short time period after the complainant had been lifted from the bath by the applicant. Concentrating on the two charges of penetration (digital and lingual), the complainant's VARE contained the following evidence:
[The applicant] forced my legs open so he could play with it.
...
[Agreed that the applicant] played with [her] vagina with his fingers.
...
[The applicant] rubbed his fingers, like, all around, I guess.
...
[The applicant] licked everywhere ... [e]verywhere of, like, just around my vagina.
...
[His tongue] went, like, over one of the holes. I don't really know what it's called but it's like the middle one.
...
His tongue was, like, going up and down against the hole.
97 It is notable that the complainant used the same description to describe the conduct of the applicant relevant to charges 2 and 3, that is, she described the applicant using his fingers and his tongue 'around' her vagina. Asked to describe what she meant in the context of charge 3, she said that the applicant's tongue went 'over one of the holes' and 'up and down against the hole.'
98 Of course, it was necessary for the jury to consider the evidence relevant to each charge separately and the fact that there was evidence to support a conviction on charge 3 could not make up for any inadequacy in the evidence pertaining to charge 2. However, the issue for the jury was to understand what the complainant meant when she said that the applicant had rubbed his fingers 'all around' her vagina. Had that evidence stood alone, then I would agree that it might not provide a sure enough basis for a finding of penetration. However, it did not stand alone. The fact that the complainant used the same expression and then went on to explain what she meant in answer to further questions provided evidence on which the jury could rely in assessing what had occurred in relation to charge 2.
99 In my opinion, the jury was not obliged to assess the evidence in a linear fashion that compartmentalised the evidence in a rigid structure. The jury were entitled to conclude that in rubbing around the vagina the applicant's finger penetrated the external lips of the vagina in the same way as was described by the complainant in relation to charge 3.
100 I am comforted in that conclusion by the fact that experienced trial counsel, who had the benefit of the VARE which was conducted on 26 February 2017 well before the special hearing and which was edited before that hearing, did not take any point that the evidence could not support a conviction. Plainly, counsel paid careful attention to the contents of the VARE but did not make a non-case submission on charge 2 or submit to the jury that even if there was touching around the vagina there had been no penetration of the external genitalia by the applicant's finger. Likewise, experienced counsel on the appeal did not take the point until the matter was raised by the Court.
101 The fact that counsel did not take the point is not a makeweight and, given the defence was that none of the offending occurred, there was little reason to focus on the point and some risk in doing so. However, the failure to take the point at trial does, to a modest degree, reinforce my assessment that the evidence was adequate to support the conviction.
102 The appeal against conviction should be dismissed.
[1] These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
[4] A jury had been unable to reach verdicts in a previous trial in February 2019.
[5] It will also be necessary to resentence the applicant.
[6] Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.
[7] Emphasis added to this and following passages.
[8] Spelling, syntax and spelling as in original.
[16] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
[17] Pell v The Queen (2020) 376 ALR 478, 486 [39] ('Pell') (citation as in original).
[19] Pell, 501 [119]. See also 502 [127].
[20] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338.
[27] By way of example, with respect to the bathroom incident (see above [12]-[13]), under cross-examination RS said that the applicant's wife 'didn't look or anything, she just like threw the towel in or handed it' at a time when the applicant's pants 'were down a bit, like to his thighs'. The applicant's counsel submitted that the prosecution should have been expected to call the applicant's wife.
[28] Counsel cited Conolly (a pseudonym) v The Queen [2019] VSCA 125, [77].
[29] Counsel cited Avery v The Queen [2014] VSCA 86, [6].
[30] Counsel cited MacKenzie v The Queen (1996) 190 CLR 348 ('MacKenzie').
[31] MacKenzie, 366-7 (citations as in original).
[32] Unreported, 13 December 1954, per Devlin J.
[33] See, eg, R v Hunt [1968] 2 QB 433 at 438; v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol I, par 4-457.
[34] See Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71; (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd [1919] NSWStRp 36; (1919) 19 SR (NSW) 172.
[35] R v Wilkinson [1970] Crim LR 176.
[36] Hayes v The Queen (1973) 47 ALJR 603 at 604-605.
[37] R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40.
[38] R v Hunt [1968] 2 QB 433 at 436.
[39] Castles, An Australian Legal History (1982), p 56.
[40] (1987) 44 SASR 591 at 593.
[41] R v Irvine [1976] I NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983), s15.2l2, requiring that the verdicts be "so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion": R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser [1845] EngR 363; (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [194913 DLR 153.
[43] Parliamentary Debates, Legislative Assembly, 20 October 1993, 1157.
[45] See in a different context Martin (a pseudonym) v The Queen [2019] VSCA 60, [79] (Ferguson CJ, Beach and Weinberg JJA).
[47] Ibid [77] (Mandie and Bongiorno JJA agreeing).
[48] Harrison (a pseudonym) v The Queen [2020] VSCA 157, [5] (Maxwell P, McLeish and T Forrest JJA) ('Harrison').
Harmer (a pseudonym)
The Queen [2020] VSCA 310
(2020) 376 ALR 478
(1996) 190 CLR 348
(1994) 181 CLR 487
(2017) 263 CLR 338
(1936) 56 CLR 580
(1973) 47 ALJR 603
(1987) 44 SASR 591