The applicant contended that, notwithstanding that the VARE occurred closer to the event in question, there was nothing in the quality of the evidence that informed charge 2 that explained why the jury might have accepted the evidence from the VARE and not the evidence at the special hearing.
The applicant argued that there was no other evidence which would have enabled the jury to accept the complainant's VARE evidence instead of what she said at the special hearing. The applicant drew attention to the fact that the evidence of complaints made by the complainant went to allegations that he had touched her, not that he had masturbated in her presence.
In relation to both charges 2 and 6, the applicant submitted that the guilty verdicts on those charges were inconsistent with the verdicts of not guilty on the remaining charges. The applicant contended that the quality of the evidence upon which those charges was based was not so different from the evidence relating to charges 2 and 6 so as to explain the inconsistent verdicts in a logical way. Doubts about the reliability of the complainant's evidence referable to the other charges were said to be relevant to the assessment of the reliability of her evidence referable to charges 2 and 6. The applicant also relied upon evidence of his denials and his prior good character.
In relation to charge 6, the applicant argued that, as the offending the subject of charge 6 was said to have occurred immediately after the alleged offending the subject of charge 5 - for which he was found not guilty - the verdict of guilty on charge 6 was inconsistent with the verdict on charge 5.
According to the applicant, the surrounding circumstances concerning charge 6 meant that it was improbable that the offending occurred. Those circumstances were said to include the fact that the offending allegedly occurred in an office to which other people had keys and the fact that Ms James would never be far away from the office. The applicant accepted that those circumstances did not make it impossible for the offending to take place, but stated that the improbabilities were a factor that this Court could consider when determining whether the jury's guilty verdict on charge 6 was unreasonable.
The Crown submitted that the jury were entitled to consider the entirety of the evidence, including the complainant's evidence in the VARE and the special hearing. The Crown contended that the jury had the benefit of being able to observe the complainant, including when and how the complainant's evidence changed as she became fatigued.
The Crown argued that, at the special hearing, the complainant did not retract her evidence from the VARE regarding the offending the subject of charge 2, but simply did not mention it. The Crown relied upon the standard jury direction that experience shows that people may not remember all the details of a sexual offence or may not describe it in the same way each time, and that it is common for there to be differences in accounts of a sexual offence. The Crown submitted that the situation would be different if, at the special hearing, the complainant had actually retracted the evidence of the offending she had given in the VARE. According to the Crown, it was open to the jury to accept the complainant's evidence in chief relating to charge 2.
The Crown submitted that the verdicts of not guilty on charges 1, 3, 4, 5 and 7 were not inconsistent with the verdicts of guilty on charges 2 and 6. It was said that the quality of the evidence relating to charges 3 and 4 was different from that relating to charges 2 and 6 in that it was less precise, less detailed and not explored in the same manner as the other charges. The Crown contended that this meant that there was a logical explanation for the jury entering verdicts of not guilty on charges 3 and 4.
The Crown argued there was a logical explanation for the acquittals on charges 1 and 7. The Crown drew attention to the following circumstances: on the prosecution case, those offences occurred when the applicant, the complainant and Ms James were in bed together; and the complainant's mother was called by the prosecution but did not give evidence in support of such offending occurring. According to the Crown, these circumstances gave the jury a logical basis upon which to return a verdict of not guilty on charges 1 and 7. It was said that those verdicts were not inconsistent with the verdicts of guilty on charges 2 and 6.
The Crown argued that the conviction on charge 6, which was said to have occurred immediately after charge 5, did not mean that the jury must have rejected the complainant's evidence. According to the Crown, when the complainant was giving evidence in relation to charge 5, she had begun to exhibit fatigue and her evidence lacked precision and detail. However, so it was submitted, at the same time the complainant did not recant the evidence that she had given in her VARE and denied that the applicant had done nothing inappropriate while she was in his office. The Crown submitted that the different character of the evidence and the lack of precision and detail relating to charge 5 meant that there was a logical basis upon which the jury could return a verdict of not guilty on charge 5 but guilty on charge 6.
The Crown contended that the mixed verdicts were consistent with a rational approach in which the jury separately considered each charge. The Crown relied upon Woods v The Queen[70] and contended that a verdict of acquittal does not mean that a jury found the evidence on that charge to be unsatisfactory, unreliable or untruthful.
The Crown argued that other matters raised by the applicant such as his prior good character and denials, and the surrounding circumstances of the offending which were said to make the offending improbable, were matters properly in the domain of the jury to consider.
In response to questions from the Bench, the Crown submitted that although charges 2 and 6 were the only non-contact offences, it did not follow that if this Court were to uphold the appeal on one of the charges, it would be inconsistent to not uphold the appeal on the other. The Crown referred to the fact that, although the two charges involved non-contact offences, the offending was committed in different locations and in different circumstances. Accordingly, it was said that an acquittal on one of the charges would not infect the other.
[2]
We will deal with ground 2 prior to discussing ground 3.
In our opinion, ground 2 is made out.
As required by M, we have examined the entirety of the evidence referrable to charge 2, which consisted largely of the evidence of the complainant and the applicant. We are of the view that, on the basis of the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant masturbated his penis or that he ejaculated in the presence of the complainant in the hotel room in the coastal town. The jury in the present case viewed a recording of the evidence of the key witnesses - including the complainant, the applicant, Ms James and the complaint witnesses referred to at [10] above - rather than seeing them[71]n person.71 Assuming that the jury assessed the complainant to be a credible and reliable witness, nevertheless, we are satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt.
Considered in isolation, the complainant's evidence in her VARE - that she saw the applicant playing with his penis and 'white stuff' shoot out when they were at the coastal town - was sufficient to establish that the applicant had engaged in sexual activity in the presence of a child under 16, and thus was guilty of the offence the subject of charge 2. However, that evidence must be considered in the context of the complainant's evidence at the special hearing. At that hearing, she did not expressly recant this aspect of her evidence in her VARE. On the contrary, she made a broad statement that she told the police the truth in her VAREs. Nevertheless, in her evidence at the special hearing, she effectively denied that the applicant masturbated in her presence during their stay at the coastal town, for the following reasons:
[3]
(a) During cross-examination, after indicating by reference to a body map that the applicant tried to insert his penis into her vagina while they were in the bed, she was asked whether anything else happened with the applicant, to which she answered 'No'.
>
> (b) Subsequently, in re-examination, the complainant stated that when she entered the room after having a shower, the applicant was on the bed 'just on his phone'. The relevant exchange is as follows:
[4]
[PROSECUTOR]: And after you had that shower, what happened after you got out of the shower?---I got dressed and then we had to go, um, [to] one of the places that we had to go.
...
[PROSECUTOR]: Okay. I should have been more specific. After you got out of the shower and went back into the room, where was [the applicant]?---On the bed.
[PROSECUTOR]: And was [the applicant] doing anything?---He was just on his phone.
[5]
This is not a case where, at a special hearing, a complainant has repeated in broad terms the circumstances of the offending alleged in a VARE but has left out some details or provided different details. Nor is it a case where, at a special hearing, a complainant has stated that he or she could not remember what had occurred. This is a case where, both in cross-examination and re-examination, when the complainant was directed to the question of what the applicant did after she left the shower, she effectively resiled from the proposition that the offending the subject of charge 2 - the applicant masturbating in her presence - occurred.
It is open to a jury to accept some parts of a witness's evidence and reject other parts. In some cases, it is open to a jury to be satisfied beyond reasonable doubt on the basis of a complainant's evidence in chief that the alleged offending took place notwithstanding a failure to positively affirm that evidence at a special hearing or due to inconsistencies between the complainant's evidence in a VARE and at a special hearing. However, the present case does not involve a mere failure to affirm or inconsistencies between the complainant's evidence in her VARE and at the special hearing, which the jury could take into account in assessing her credibility and the reliability of the account she gave in her VARE. Rather, in the present case, the complainant's evidence at the special hearing in effect amounted to a disavowal of the proposition that she saw the applicant masturbating in the hotel room in the coastal town.
In our opinion, the transcript of the complainant's evidence at the special hearing does not support the Crown's contention that the difference between that evidence and the evidence given in the VARE concerning charge 2 could be explained by fatigue on the part of the complainant.
It is apparent from the transcript that, shortly after the special hearing resumed on 27 November 2019 following the luncheon adjournment, the judge, the prosecutor and Ms Wheelan were of the view that the complainant was 'flagging' or showing signs of fatigue. She was also indicating a reluctance to talk about the details of what had happened. However, the series of cross-examination questions which gave rise to concerns about how the complainant was feeling related to the events the subject of charges 5 and 6 rather than charge 2. Further, shortly after these concerns emerged, the judge adjourned the hearing until the following day, 28 November 2019. On that day, the complainant appeared to give evidence in a composed manner. It follows that, to the extent that the complainant exhibited signs of fatigue during her cross-examination, this did not occur in relation to the events the subject of charge 2.
For the reasons we have already provided, we do not accept the Crown's submission that the complainant simply did not mention witnessing the applicant masturbate rather than resiling from the proposition in her evidence in the VARE that he did so. The complainant was given an opportunity during both cross-examination and re-examination to state whether anything in addition to the alleged attempt at penile-vaginal penetration had occurred, and, in response, she stated that either nothing else happened or that the applicant was engaged in the innocuous conduct of using his phone.
For the above reasons, the jury's verdict of guilty on charge 2 will be set aside and a judgment of acquittal will be entered in its place.
We now turn to ground 3, which concerns the guilty verdict on charge 6.
In our opinion, ground 3 is not made out.
The complainant's evidence in her VARE - that she saw the applicant playing with 'his - this thing' and 'white stuff' shoot out of 'his - this thing' when they were in his office - was clearly sufficient to satisfy the jury beyond reasonable doubt that the applicant had engaged in sexual activity in the presence of a child under 16, and thus he was guilty of the offence the subject of charge 6. The complainant did not say anything at the special hearing which contradicted the account she gave in the VARE or which cast doubt on the veracity of that account. She made a broad statement that she told the police the truth in her VAREs and, in response to a proposition from defence counsel that nothing ever happened at the applicant's office, she replied '[n]o, that's not true'.
We reject the applicant's submission that the surrounding circumstances concerning charge 6 meant that it was improbable that the offending occurred. Although the circumstances upon which the applicant relied meant that the applicant risked being caught offending, some child sex offenders are prepared to court a substantial risk of being discovered by other adults.[72] In any event, those circumstances were not such as to deprive the applicant of the opportunity to commit the offending the subject of charge 6. He was left alone with the complainant and, even though Ms James was nearby and was not absent for a lengthy period, he had sufficient time to commit the offending. Further, the applicant was able to have some warning of a person seeking to enter his office by hearing a key being placed in the lock and by looking through the one-way glass window.
We agree with the Crown's submissions as to why the jury's guilty verdict on charge 6 is not unreasonable by reason that it is inconsistent with the verdicts of not guilty on all the other charges other than charge 2.
The fact that the other charges, other than charge 2, involved contact offences provided a rational basis for the jury to have a reasonable doubt about whether the applicant had committed them but to nevertheless not entertain such a doubt in relation to charge 6.[73] In relation to charges 1 and 7, the jury could have had a reasonable doubt about the applicant's guilt on the basis of his evidence, and that of Ms James, that the complainant was required to wear a nappy when she slept on their bed.
The fact that we have held that the jury should have entertained a reasonable doubt in relation to the non-contact offending the subject of charge 2 does not mean that the jury should also have entertained such a doubt in relation to charge 6. As we have explained, the reason why we have a reasonable doubt in relation to charge 2 - namely, the complainant's effective disavowing of her evidence in the VARE during the special hearing - does not apply to charge 6. Further, as tendency evidence in the present case did not assume any prominence, a finding of not guilty on charge 2 does not materially weaken the prosecution case in support of charge 6.
We accept that all of the charges depended upon the jury being satisfied that the complainant was credible and her evidence was reliable. However, the jury were required to assess the evidence referable to each charge separately and were entitled to accept some parts of the complainant's evidence and entertain a reasonable doubt in relation to other parts of her evidence. Further, an acquittal in respect of some charges does not mean that the jury found that the complainant lacked credibility or that her evidence was unreliable. Rather, an acquittal simply meant that, on the whole of the evidence, the jury were not satisfied of the applicant's guilt on the relevant charges beyond reasonable doubt.
The jury's verdict of guilty on charge 6 means that the jury accepted the complainant's evidence in relation to that charge. The applicant's good character and the fact that he gave evidence denying the offending did not mean that the jury could not, on the whole of the evidence, be satisfied of the applicant's guilt beyond reasonable doubt.
It is unclear from the complainant's evidence that the offending the subject of charge 6 was said by her to have followed immediately after the offending the subject of charge 5. Even if such temporal proximity was said to exist, for the reasons we have already given, the fact that the jury were not satisfied beyond reasonable doubt that the offending the subject of charge 5 occurred does not mean that the jury was required to have a reasonable doubt about the offending the subject of charge 6. The nature of the alleged offending and the quality of the complainant's evidence differed in relation to the two charges.
[6]
As we have already stated, our conclusion that ground 2 is made out means that the conviction on charge 2 must be set aside and a judgment of acquittal must be entered on that charge. As a consequence, the sentencing discretion is reopened.
It will be recalled that, on 22 July 2022: the applicant was sentenced to 16 months' imprisonment on each of charges 2 and 6; the sentence on charge 2 was treated as the base sentence; cumulation of 4 months was ordered in respect of the sentence on charge 6; the total effective sentence was 20 months' imprisonment; and a non-parole period of 10 months was fixed. Not including today, the applicant has served a total of 265 days (8 months and 20 days) of the total effective sentence.
In our opinion, the standard sentence of 4 years' imprisonment should not apply for the offending the subject of charge 6 and an appropriate sentence for that offending is in the order of 9 months' imprisonment.[74] That is so for two reasons. First, that offending involved a single instance of very brief non-contact sexual activity which falls at the lower end of the spectrum of seriousness. Secondly, the applicant is able to call in aid the significant mitigating factors to which the judge referred in his sentencing remarks.[75] As the applicant has already served 265 days (not including today), we will sentence him to time served on that charge.
For the above reasons, we will make orders to give effect to the conclusions summarised at [5] above.
[7]
[1] To ensure that there is no possibility of identification of the victim of the alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant, the complainant and other witnesses.
[6] In these reasons, proposed grounds of appeal are referred to as grounds of appeal. In ground 1 and in the trial transcript, the intermediary's surname is spelt 'Wheelan'. In some other documents, it is spelt 'Whelan'. We will use the spelling in the trial transcript.
[12]
[14] There were two trials, the first in November-December 2019 and the second in April-May 2022. The jury in the first trial was discharged without verdict during its deliberations. The second trial was delayed due to the COVID-19 pandemic. See Sentencing Remarks [2].
[16] The form of affirmation prescribed by sch 1 to the CP Regulations follows the form of the prescribed oath, save that the intermediary 'solemnly and sincerely [declares] and [affirms]' rather than swears by Almighty God or a god recognised by his or her religion.
[15]
[17] The forms of affirmation prescribed by sch 1 to the Evidence Act for witnesses and interpreters follow the forms of the prescribed oaths, save that the witness or interpreter 'solemnly and sincerely [declares] and [affirms]' rather than swears by Almighty God or a god recognised by his or her religion.
[16]
[18] Paragraph [28] is based upon AB v Independent Broad-based Anti-corruption Commission[2022] VSCA 283, [123] and Vicinity Funds RE Ltd v Commissioner of State Revenue[2022] VSCA 176, [69]-[70].
[41]Baini[2012] HCA 59; (2012) 246 CLR 469, 479 [26], 480 [27], 481 [33]. It is not clear whether the majority considered this type of case as falling within subs 276(1)(b) or (c) or both.
[47] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997), cited in Ward(2017) 54 VR 68, 93 [97].
[54] Counsel did not identify the decision of the District Court of Queensland to which he referred. It appears that the decision is Powe v Hansen[2021] QDC 12 ('Powe'). That decision does not provide any assistance in the present case.
[52]
[55] Some Canadian authorities are discussed in Powe.
[64] The limited form of waiver in s 389J(3) of the CPA (see [21] above) applies to the giving of evidence without the assistance of an intermediary rather than to the giving of evidence with the assistance of an intermediary who is not sworn.
[68] (2020) 268 CLR 123, 145 [39] (citations omitted). The approach in M was also recently endorsed by the High Court in Dansie v The Queen[2022] HCA 25; (2022) 403 ALR 221, 224-226 [10]-[17]; [2022] HCA 25.
[66]
[69] The judge gave leave to the prosecutor to cross-examine Ms James pursuant to the 'unfavourable witness's provisions of s 38 of the Evidence Act.
[71] As discussed at n 14 above, there were two trials. A recording of the evidence of some of the witnesses who appeared in person in the first trial (including the applicant, Ms James and the complaint witnesses referred to at [10] above) was played at the second trial.