Harrison (a pseudonym) v The Queen [2020] VSCA 157

1 The applicant was tried before a County Court jury on four charges of incest and two charges of indecent assault. The complainant was his natural daughter, who was aged about 14 at the time of the alleged offending. Following successful no case submissions in respect of a number of the charges, the jury were left to consider two charges of incest. The applicant was convicted on both charges.

2 He now seeks leave to appeal against conviction on a single ground, namely, that the jury verdict was unreasonable and cannot be supported by the evidence. Specifically, he contends that it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that there had been penetration of the complainant's vagina on either of the alleged occasions.

3 For reasons which follow, we would refuse leave to appeal. In short, the descriptions given by the complainant in her evidence clearly established that, on both occasions, there had been penetration of what is referred to (in the definition of 'vagina' in s 35 of the Crimes Act 1958) as the 'external genitalia'. The fact that the complainant herself did not regard what had occurred as 'penetration' does not affect the safety of the verdicts.

Was the element of penetration proved beyond reasonable doubt?

4 Commendably, counsel for the applicant (who was also defence counsel at trial) acknowledged at the outset that even 'slight or fleeting' penetration would suffice to establish this element of the offence of incest. Counsel cited the following passage from Anderson v The Queen,[2] where Weinberg JA (with whom Mandie and Bongiorno JJA agreed) 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.

5 It followed, as counsel properly conceded, that 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. His submission was that, when the complainant's evidence was taken as a whole, there was such uncertainty about her descriptions, and about her understanding of the relevant anatomical terms, that the jury were bound to have a doubt.

6 Particular reliance was placed on the complainant's answers in cross-examination, when she confirmed - more than once - that there had been 'no penetration'. The following exchange - in relation to charge 3 - illustrates the point:

You were clear that on that occasion with his penis there was no penetration of the vagina?---No penetration.

On that occasion, likewise on other occasions. Never an occasion where penis penetrated or went inside your vagina at all?---No, no, not at all.

And I think I've already covered the fact that at no stage do you allege that his finger or fingers went inside your vagina?---Yeah, there was no penetration of any form or any way.

7 At the same time, as counsel acknowledged, the answers which the complainant gave in re-examination included several references to being touched 'between' the labia. Thus, when the prosecutor asked her - in relation to charge 3 - which part of her vagina the applicant's penis had touched, she said:

Like, between - it's - it's called a labia, right, those two bits here? Between there. Like - like, straight kind of between there.

Asked then what she had meant by her answer in cross-examination that the applicant's penis 'didn't go in', she answered:

8 The complainant made it clear what she meant by 'in between' when it was put to her that the applicant had only touched her 'on the outside':

On the outside, yeah. He didn't go inside. Like, in between but not inside.

9 The prosecutor asked the complainant about the incident the subject of charge 1. She had referred earlier to being touched on the clitoris. When asked to state where that was in relation to her labia, she said:

Like, at the top in between, just like a little bit off the top.

When asked specifically where she had been touched on the first occasion, she said:

The bikini line, the clitoris and then, like, in between the labia.

10 In answer to questions from the court, counsel accepted that there was an intelligible distinction between, on the one hand, penetration of the external lips of the vagina and, on the other, 'full penetration' of the penis (or finger) into the vaginal canal. Asked then what was to be made of the complainant's statements that there was penetration 'between' the labia, counsel submitted that 'between' could mean 'on top of'.

11 In our view, this submission must be rejected. It is quite clear from the complainant's answers that she was referring to the labia majora, which (unprompted) she identified by using the correct anatomical terminology. There was no ambiguity in her use of the word 'between'. She was clearly describing the placing of the applicant's finger - and, in charge 3, his penis - in between the external lips.

12 As counsel for the respondent correctly submitted, the question for the jury was not whether the complainant herself would regard what she had described as amounting to 'penetration'. It would appear that she believed the term to be only properly applicable when there was 'full penetration' of the penis or finger inside the vagina. The only question for the jury was whether what the complainant described satisfied the legal definition of penetration of the vagina, as clearly and carefully explained to them by the judge.

13 In our view, there was neither uncertainty nor ambiguity about the complainant's evidence. As we have said, what she described clearly in relation to both charge 1 and charge 3 was an act of penetration of the external genitalia. It was well open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the element of penetration had been proved.

14 For completeness, we should add that we have viewed relevant excerpts of the video recording of the VARE and the special hearing, as counsel for the respondent had submitted we should do. We were invited to note the hand gestures which the complainant used while she was describing what had occurred. As counsel submitted, the gestures are consistent with the complaint's verbal descriptions as we have interpreted them, but we have found it unnecessary to rely on them in our consideration of this ground of appeal.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] [2010] VSCA 108, [77].