L M D v The Queen [2012] VSCA 164

1 In this matter I will ask Harper JA to deliver the first judgment.

2 Unwanted sexual act behaviour is, unfortunately, an everyday occurrence. It ranges from the minor to the gross. Its effect on its victims is equally variable. Some might be thought by others to overreact to a non-threatening incident which, at worst, and according to one's view of these things, might by classified in poor taste. It is also true that the effect of unwanted, physical sexual contact not involving penetration is unpredictable, save that some victims of it will suffer very severely indeed. And in general it is not they, but the perpetrator who must shoulder the blame for the infliction of that suffering.

3 Another truth, of course, is that not all those who are accused have done anything wrong. Some accusations are false; some deliberately so, while others involve mistakes − such as mistakes of identity − which have innocently been made. And all accused are entitled to the presumption of innocence.

4 The difficulty of distinguishing fact or falsity is the sometimes very difficult task of the magistrate or the jury. The difficulty is often compounded when complaints about sexual misconduct are made years after the alleged offence by an infant who claims to be a victim, or by an adult who claims that he or she was a victim when a child.

5 The present appeal is one to which most of the considerations set out above have some relevance. The alleged victim is now an adult. The misconduct of which she complains happened, if it happened at all, very many years before she lodged a formal complaint to the police, many years before any informal complaint to the authorities was made, and years before the incidents upon which the prosecution now relies were first revealed to anyone at all. Moreover, there is no complaint of sexual penetration, and the number of alleged sexual assaults was restricted to six − with one of those not being proved to the satisfaction of the jury, and another withdrawn from it. Nevertheless, the effect of that offending upon the victim was, she says, considerable. It may be also lasting, as these things sometimes are.

6 The complainant was born in November 1983. At the relevant time, the applicant was married to the sister of the complainant's mother. He was therefore the complainant's uncle. She claims that on four occasions she was sexually molested by him. Two of these occasions allegedly involved two acts of molestation. Hence the six charges.

7 The complainant was unsure of the exact sequence of events. As best she could recall, the first of the alleged incidents occurred in a shed at the applicant's home in Ferntree Gully in 1991. He asked her whether she wanted a dollar. Having deliberately dropped the coin into her underpants, he then sought to recover it. In her evidence at his trial, she described what happened next:

He was just using his finger to rub around. He never put his fingers inside my vagina, just around the lips and just rubbing, just pretending to look for it.

8 She puts the next incident a little later in 1991, though at the same address. It was evening. The applicant suggested a game of hide and seek with a number of children, among them the complainant, in a darkened room. The applicant found her and, under the pretence that he had to identify who he had found, rubbed his hands over her body, including her breasts (charge 2) and vagina (charge 3).

9 The next two complaints arose out of an alleged incident when the applicant and his family, together with the complainant, were camping at or near Bright. The complainant was sleeping in the same tent as the applicant, his wife, and some if not all of his children. According to the complainant, she awoke to find the applicant stroking her breasts (charge 4).

10 No evidence was led on the second of the two complaints (charge 5) said to arise out of the incident in the tent. A verdict of not guilty on that charge was therefore entered by direction.

11 The final allegation was said by the complainant to have arisen out of an incident in about 1993 when she was nine years old. She alleges that it happened in the house at Woori Yallock in which the applicant was, she says, then living with her aunt. The complainant was in her aunt's bedroom when the applicant entered, told her to lie on the bed with him and, after she obeyed, rubbed her breasts.

12 The applicant was convicted on charges 1, 2, 3 and 6. The first three were laid under s 44 of the Crimes Act 1958, as it was until 5 August 1991. Section 44, as it was before that date, provided that a person who indecently assaults another person is liable to imprisonment for five years; and it is no defence, if the victim is under the age of 16, that he or she consented.

13 The regime instituted on 5 August 1991 by the Crimes (Sexual Offences) Act 1991 is significantly different. Section 44 of the Crimes Act now deals with incest; and the work once done in the former life of that section has been transferred in part to s 47. So far as is presently relevant, the latter provides that a person must not wilfully commit an indecent act with a child under the age of 16 to whom he or she is not married. The penalty for disobedience is not five, but 10 years' imprisonment.

14 Charge 6 was laid under the new s 47. It is therefore relevant to ascertain whether it was committed after 5 August 1991. The evidence on that point will be examined later in this judgment.

15 Following his conviction, the applicant was on 30 March 2012 sentenced in the County Court as set out in the table below:

Indecent assault on child under 16 years (s 44(1) Crimes Act 1958)

Indecent assault on child under 16 years (s 44(1) Crimes Act 1958)

Indecent assault on child under 16 years (s 44(1) Crimes Act 1958)

Indecent act with a child under 16 years (s 47(1) Crimes Act 1958)

12 months' imprisonment, 6 months to serve and 6 months wholly suspended for 2 years

Order for forensic sample under s 464ZF Crimes Act 1958 made.

Order for life registration under Sex Offenders Registration Act 2004.

I note that the table included in the applicant's written case incorrectly provides for two months' cumulation for Charge 3.

16 The applicant now seeks leave to appeal on four proposed grounds. The first is that the trial judge wrongly allowed to go to the jury evidence of separate complaints made by the complainant to two of her friends.

17 Each of the complainant and the two friends gave evidence. Both of the friends said that the complainant had told them, albeit at different times, that she had been 'molested' by the applicant. There were differences in the accounts of how much additional detail was given about the incidents in which the molestation occurred, and how many such conversations were had.

18 The evidence before the jury was that the first complaint was made when the complainant was about 15. She told her best friend, a girl of the same age, about the alleged misbehaviour of the applicant, although on this first occasion she confined herself to the comment that she had been molested.

19 The second significant complaint was made to the man who later became the complainant's husband. She was having difficulty in having sexual intercourse with him because, as she told the jury, her mind then turned to what had happened years before with her uncle, and she tended to 'freeze'. It was in this context, she said, that she told her boyfriend about her uncle's earlier misconduct.

20 The trial judge allowed this evidence to go before the jury. In my opinion he was correct to do so. The applicable provision of the Evidence Act 2008 is s 66. It applies in criminal proceedings where the person who made a previous representation about an asserted fact (in this case, the complainant) is or will be called to give evidence about that fact. In those circumstances, and provided that a necessary precondition is met, the hearsay rule does not apply to the evidence of the representation that is given by a person to whom the representation was made.

21 The precondition is important. It is that, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. It follows that, under s 66, evidence of the representation cannot in this case be admitted for the purpose of proving the truth of its contents unless, when the representation was made, the asserted fact was fresh in the complainant's memory.

22 On any view of the timelines applicable in this proceeding, the first complaint was made years after any incident of molestation as alleged by the complainant. She was seven or eight when the first alleged assault took place. She was about 15 when she spoke to her school friend, and 18 when she told her boyfriend about being molested.

23 The period of time between the occurrence of the asserted fact and the making of the representation is one of the factors which the court may, by s 66(2A), take into account in determining whether that occurrence was fresh in the memory. The relevance of the passage of time is obvious. But other considerations may also be relevant, perhaps decisively so. The Act itself refers to the nature of the event concerned and the age and health of the representor. It also refers to 'all matters that [the court] considers are relevant to the question'.

24 The events to which the complainant referred when she said that she had been 'molested' were inherently likely to remain firmly in her mind, if not as to detail, then as to the general nature of the behaviour to which she says she was subjected. Had she never raised the topic with anyone before going to the police in 2003, she would certainly have been attacked on the basis that, had there been any substance in her allegations, she would have told someone about them. Her complaint was, therefore, evidence necessary to be called in the Crown case, at least from her; but once the conditions of s 66 were satisfied, then also from the persons to whom the representations were made, as evidence not only of consistency of conduct by the complainant but also as to the truth of the content of the representations.

25 The conditions of s 66 were in my opinion clearly satisfied. That the events were fresh in the complainant's memory was demonstrated by her reaction to the approaches made by her boyfriend when sexual intercourse between them was contemplated. If the events were fresh in her memory then, so too were they likely to have been when the complainant spoke to her school friend some four years earlier.

26 It is no answer to this proposition that the complainant did not descend into detail, or that the girlfriend gave no evidence about the complainant's demeanour when referring to the molestation, or that the applicant was not identified by name.

27 In the applicant's written outline of submissions, it is put that the trial judge ignored the passage of time. As his Honour's ruling demonstrates, that submission is wrong. His Honour did take that circumstance into account.

28 The first proposed ground is, for these reasons, not made out.

29 The next proposed ground raises what are said to be inconsistencies in the evidence which resulted in inconsistent verdicts. There is no substance in this ground either. The jury returned a verdict of not guilty on charge 4. The alleged offence happened at night, in a tent with another adult and several other children also inside. The complainant did not see who (as she claims) was molesting her. She says that she recognised the applicant by his breathing. In these circumstances, the verdict of not guilty is entirely explicable on the basis that the jury had a reasonable doubt about the applicant's guilt, even accepting that the complainant was doing her best to tell the truth. The verdict does not necessarily say anything about the jury's assessment of the complainant's credibility.

30 The applicant seeks, by reference to the evidence about the time at which the camping trip took place, to bolster his argument that the verdicts were inconsistent. As I understand the submission, it is that, if the evidence given by the complainant's aunt and a cousin about that issue is accepted, then the complainant's entire chronology must be a matter of doubt. The result is that the jury must therefore have been forced to speculate about dates and times, if only in an attempt to obtain a proper chronological perspective − and even then, such a perspective would not be open to them because the evidence was such that no conclusions about chronology are possible.

31 The difficulty with this submission is that inconsistencies in chronology go to the credit of the witness to whom the inconsistencies are properly attributable. They do not go to the substance of the prosecution case, because dates and times and places are not elements of alleged offences required to be proved. It may be that a different jury would have taken a different view of the complainant's credibility than did the jury at the applicant's trial. It is equally likely that another jury, as with the jury in the applicant's trial, would have been satisfied beyond reasonable doubt that each of the offences the subject of, respectively, charges 1, 2, 3 and 6, had been proved to that standard.

32 The third proposed ground of appeal is that, when regard is had to the evidence of the complainant's aunt and one of her cousins, the jury must have speculated in such a way as to result in the applicant being convicted of an offence not known to the law.

33 This ground is founded on a discrepancy between the complainant and other witnesses about the place at which the misbehaviour which is the subject of charge 6 took place. The complainant swore that it occurred in Woori Yallock; that it was the last of the assaults to which she was subjected by the applicant; that it happened shortly before he separated from her aunt; that before the separation, this was his family home; and that − to the best of her recollection, given her attempts to place the event in its proper chronological order − she was nine years old at the time. This put the date of the incident in late 1991 or the first half of 1992, because the separation took place on 30 June 1992, and the complainant was then in her ninth year. But all the evidence points to the aunt last living at Woori Yallock in 1988 or 1989. The family home immediately before the separation was not at Woori Yallock; it was at Ferntree Gully.

34 The Crown in response accepts that the complainant must be wrong about the incident taking place in Woori Yallock, but contends that the jury were nevertheless justified in returning a verdict of guilty on this charge. In other words, the jury had before it evidence upon which they could have been satisfied beyond reasonable doubt that the offence took place − and, moreover, if it is important, that it was the last event of its kind, and that the complainant was about nine years old when it happened.

35 As I have noted above, the date of the final proven offence is important. On 5 August 1991 the Crimes Act was amended to create the new offence of an indecent act with a child under the age of 16. This offence carries a maximum penalty of ten years' imprisonment. If the last of the alleged acts of sexual assault occurred before the legislation took effect, the applicant was properly charged under s 44 of the Crimes Act (as it then was) and not under s 47 (as it now is); and the maximum penalty was only five years' imprisonment.

36 In my opinion, the judge in sentencing the applicant was justified in

proceeding on the basis that the last offence occurred after the new provisions came into effect. There was evidence before him which supported the conclusion that, while the complainant was wrong in locating that offence in Woori Yallock, she was correct in her evidence that it was the last offence to be committed; that it occurred at the home which her aunt occupied immediately before her separation from the applicant; and that at the time of the offence the complainant was, as she thought when she gave her evidence, nine years old - or at least in her ninth year. The jury was entitled, accordingly, to find the charge, as laid, proved.

37 The above covers the final proposed ground, ground 4, which is that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence. In my opinion, for the reasons I have endeavoured to articulate, that ground too cannot be made out.

38 The application for leave to appeal did raise an arguable point about charge 6, and hence too about the penalty provision which is applicable to that charge. The applicant should therefore have leave to appeal. The appeal should be heard and determined instanter. For the reasons set out above, however, it should be dismissed.

39 I agree with Harper JA for the reasons that his Honour has given, that the applicant should be given leave to appeal and the appeal treated as heard instanter and dismissed.

40 I also agree with those orders for the reasons given by Harper JA.

2. That the appeal be treated as heard and determined instanter.