O'Brien (a pseudonym) v The Queen [2014] VSCA 94

O'Brien (a pseudonym) v The Queen [2014] VSCA 94 - VSCA 2014 case summary — Zoe

[50]

Is that what [C] was telling you? --- That is, yes.

'Stayed at [D's] friend's house for a while as they had new bunnies.' Is that right? --- Yes.

'Went back to [D's] house.' Is that right? --- Yes.

'Had dinner'? --- Yes.

'Watched another movie'? --- That's correct.

'Went to bed'? --- Yes.

If I just pause there, I take it that it would be safe to assume [C] didn't make any mention to you of an allegation she was out in the lounge room on the couch and had her vagina licked in this disclosure interview'? --- Not on this occasion, no.

Now resuming back where your notes reveal what [C] said to you, the next entry I understand is this, 'Set up mattress on floor next to [D's] bed.' Is that correct? --- That's correct.

'Fell asleep'? --- Yes.

'Woke up in the middle of the night'? --- Yes.

And then the next entry, 'Her dad was there.' Is that right? --- Yes.

'He started touching me'? --- That's right.

'Touched me everywhere'? --- Yes.

'He pulled and pushed me'? --- Yes.

'Held on to my arm. Held on to me'? --- Yes.

And then you've got a dash there and then the word[s] 'my arms'? --- That's correct.

'Kissing my neck'? --- Yes.

'Touched my breasts. Started sucking.' Is that correct? --- That's correct.

'Rubbing my tummy'? --- That's correct.

'Touched vagina'? --- Yes.

'Touched it with his tongue'? --- Yes.

'Started rubbing inside'? --- That's correct.

'Stick his fingers up my vagina'? --- Yes.

'He got my hand'? --- Yes

'Rubbing it on his penis'? --- Yes.

'I tried to leg go'? Yes.

'But he wouldn't let me'? --- That's correct.

'He kept grabbing my hand'? --- Yes.

And you've then got the abbreviation 'I/S'. Does that stand for 'inside'? --- Yes, it does.

So the entry is, 'Inside my clothes.' Is that right? --- That's correct.

The next entry, 'Told him to stop it'? --- Yes.

'He just kept going.' --- That's correct.

'[D] lying next to me asleep'? --- Yes.

'He thought I liked it'? --- Yes.

And then, 'I said'? --- That's correct.

'I said, "Stop it."' Is that right? --- Yes.

'He said, "I thought you liked it"'? --- Yes

'I said, "No. Stop it"'? --- That's correct.

All right. They're accurate notes of the conversation as you spoke to [C] are they? --- Yes, they are.

[56]

Do you remember what you were wearing at this time? --- I was wearing leggings and a T-shirt. I can't remember what T-shirt.

You had worn those leggings to bed? --- Yes.

And those leggings, you were wearing them in the normal position, pulled up and that sort of thing, when you went to bed? --- Yes. Of course.

When you say that [the applicant] woke you up were your leggings pulled up? --- I can't remember.

Are you saying that your leggings stayed up, or did they come down? --- They did come down, but I can't remember at what point.

How did they come down? --- He pulled them down.

How did he do that? --- With his hands.

Yes, but you say that they were up? --- Yeah.

And he used his hands. Both hands? --- Yeah.

Soon after you woke up, or was that a later stage that he takes your leggings down? --- When I was - when I woke up I had no leggings. Like, my leggings had been pulled down.

So your leggings were actually down? --- Yes.

They had been taken down by the time you woke up? --- Yes.

By the time you woke up your legging were down? --- He was pulling them down as I woke up, so - - -

Pulling them down? --- At - I - I'm pretty sure he had one hand with my hand, and he was pulling them down with one hand.

HER HONOUR: Sorry. Just pause.

COUNSEL: All right. So when you say that you woke up in the night with [the applicant], and he was holding your hand and putting it on his penis and making your hand rub it, we can also say that he was also taking your leggings down at the same time, can we? --- He had my hand, and it was resting on his penis - it wasn't rubbing - as he was pulling down my - pants, and then, once he had pulled down my pants he started rubbing.

So he was taking down your pants, or your leggings - when you say 'pants' you mean leggings - - - ? --- Yes.

Or are they some[thing] different? --- Leggings. Sorry.

I'm not seeking to confuse you? --- M'mm.

If you're wearing pants, as well as leggings, please say so? --- I was wearing leggings and underwear.

Yes, but I'm not seeking to confuse you. If you're referring to a different garment, please say so? --- Thank you.

Now you say that he was taking your leggings down at the time you woke up? --- Yeah. I had my hand on his penis and was pulling down my leggings.

That's not what you said to the police officer when you were interviewed in May though, was it? --- No.

Why didn't you tell the police officer in May that? --- I did tell them that my pants had been pulled down.

Yes, you did, but you didn't tell the police officer in May that your pants were pulled down at the time when you were first woken up, did you? --- No.

In fact, you said that 'he pulled my leggings all the way down as well again, he just stuck it up - he just started twisting it and doing all that stuff'. You seem to be suggesting in your answer that your leggings were taken down at some time before, as you allege, fingers were put into your vagina.

HER HONOUR: Do you understand that, and do you agree with it? It was a very long question. Did you understand it?

COUNSEL: Yes? --- No, I don't understand it.

HER HONOUR: No.

COUNSEL: No. I will put it again. When you were talking to the police you seemed to be saying that your leggings were being taken down at a later stage than what you're telling us today.

HER HONOUR: So stop there. Do you agree that that's what you were trying to tell the police? --- Yes.

Very well.

COUNSEL: They both can't be right, can they? --- No.

Which one is right? --- I can't remember. I'm - I don't know.

[64]

Q 74: OK. You said that, I want to take you back to where you went to get water. You told me you went to get water. ---Yes, I went to get a glass of water to drink, like I normally do before bed, and then [the applicant] grabbed me and he put me down on the couch this size on my back, and started licking my bottom part.

Q 75: OK. So tell me where you went to get water. --- From the kitchen sink.

Q 76: OK. And I want to take you back again to where he's grabbed you. Tell me everything, from the start to the finish, about how he grabbed you and where he grabbed you. ---Well, he really just, it was more of , like, like, chase thing, not exactly like a grab, pick you up and throw you there. It was more of, like, a really, like, chase you and then push you over and, yeah, but it wasn't very much of a big push. It was just a little knock.

Q 77: OK. And I'm a little bit confused by that, so what I need you to do is tell me more about that. I wasn't there, so I need you to be able to tell me so that I can understand. ---Mm'hm.

Q 78: So you can tell me again. You've gone to the kitchen. --- Yes, to get a glass of water.

Q 79: You've got some water, yep, and - - - And then I drink the water and put it down, and then he kind of chases me into the living room and kind of knocks me over.

Q 80: OK. Can you describe that to me more, about chasing you and then knocking you over? --- Well, so he kind of knocked me over so I was on all fours, and then I tried to run away like that, 'cause I just didn't have the time to get up, and then he kind of just picked me up and put me down on the couch and said, Wait, I have to check something and I tried to push him away but he just didn't stop.

Q 81: OK. Where were you when you've been pushed down? I was in the living room, so the lounge room, near the, not the kitchen, the eating area. So they've got the big table and then chairs, and then they've got two couches, and then they've got a Mac there which they watch movies on. So he pushed me down over in front, onto the carpet in front of the Mac.

Q 82: OK. Tell me how he pushed you down. --- Yeah, well, it was just, like, a little trip with the, like yeah, but didn't hurt or anything.

Q 83: Sorry, I didn't get that. --- It was, like, little, it was like tripping someone so, yeah, but didn't hurt, so - - -

Q 84: OK. Can you explain how he tripped you? --- Well, he just kind of, like, stuck his foot out and I tripped over, 'cause I wasn't looking where I was going, obviously, 'cause I just wanted to get away. So, yeah, and he tripped me over, so I landed on all fours. Didn't hurt myself, luckily, and I just tried to get away and, yeah, then he just grabbed me and put me onto, yeah.

...

Q 246: OK. From the glass of water? --- Yes, [the applicant] kind of chased me into the lounge room and tripped me over so I was on my all fours, and I tried to run off like that and he kind of grabbed me by hips and put me on the chair and pushed my legs backwards so I had my pants in front of my face, and he stated licking my vagina.

[65]

Q 16: [C], tell me why you're here today. Something I said in the last video wasn't entirely correct.

Q 17: OK. And tell me about that from the start to the finish without leaving anything out - - - What wasn't on the day - - -

Q 18: Correct. --- Oh, from just, oh - - -

Q 19: Yes, the --- Could I check my - - -

Q 20: Sorry? --- Could I check my script thing just to find the spot?

Q 21: OK: --- Just so I'm right.

Q 22: I'm handing [C] a copy of the transcript of the first VARE dated the 24th of May 2011.--- OK, OK. Here, that one. So in my last video, I said, Well, he kind of knocked me over and I was on all fours, then I tried to run away like that. That part of it's not true. I don't remember that happening. What I think happened is, what I'm pretty sure happened is that he more kind of, like, if, if you tell someone something and they're heading off and you kind of just, like, grab them, just so you can kind of catch them in time to do what you need to do or tell them something, kind of like that, and led me to the chair.

Q 23: OK. I need you to tell me in a bit more detail because I'm finding that - - - Yep.

Q 24: - - - hard to understand what you're telling me. OK. What part, just - - -

Q 25: About walking, you were telling me something walking away - - - Righto.

Q 26: I don't understand how he, he held you, grabbed you or whatever - - - OK.

Q 27: - - - it is. --- So after I gave him the drink [sic] I went to walk back off to the bedroom and he grabbed me kind of by the shoulder, like, waist, kind of, and kind of, like, kind of pulled, like, kind of leaded me [sic] into the, into the lounge room and sat me down on the chair.

Q 28: OK. You're telling me that he's got you by the shoulder, waist area? --- Yeah.

Q 29: I'm a bit, I'm not understanding that, sorry. --- Kind of - - -

Q 30: Show me how or explain to me how he did that. Was that with his hands? --- It was his hand, yeah, like, kind of from behind, kind of, by the shoulder. I can't remember, like, as if he wanted to go, like, away or something, blah blah blah blah blah, yeah.

...

Q 34: OK, And I'm just going to repeat it to make sure that I understand it. ---Yep.

...

Q 36: Where did you get the drink from? --- The kitchen.

Q 37: The kitchen. And then you've walked away. Is that correct?---I was about to walk away, then he grabbed me, like, not roughly, just kind of, like, in a friendly kind of way as you would do to a friend if you were telling them something and they were heading off somewhere, like, to kind of stop them.

...

Q 41: And you said that it got part of your arm, your waist, your shoulder, your waist: --- Well, kind of, like, from arm and, like, like, the rest of his arm rests on, kind of against my back.

Q 42: OK. and then he's led you away? --- Kind of led off in the direction.

...

Q 47: OK. So the part of your statement that you want to change is about being chased? --- Being chased and being on all fours.

Q 48: OK. So where, tell me if you were chased or not? --- No, I was not. Well, I might have been. I honestly can't remember but I don't, I, it would have been like a full-on, like - (clears throat) sorry - like, running around in circles or anything.

Q 49: OK. You all right? --- Yep - (clears throat) OK.

Q 50: And tell me about being on all fours. What do you mean? Well, that's not true either, or it's not right .....

...

Q 55: OK. So in your first statement, you've got that he chased you. He pushed you. Is that correct? I don't know.

Q 56: No, it's not in there, sorry.---Oh - - -

Q 57: He's chased you. You've ended up on all fours. --- Yeah, oh, he tripped me.

Q 58: Tripped you, sorry, that's right, tripped you and you ended up on all fours. At any stage were you tripped?--- Not that I can recall.

Q 59: OK. At any stage were you chased? --- I don't know, I might have been.

Q 60: OK. Can you remember if you were or not? --- No.....

Q 61: OK. At any time did you end up on all fours? --- No. That's definitely not right.

...

Q 68: Excellent, thank you. Why, tell me why your recollection has changed? --- What do you - - -

Q 69: Tell me why your memory of what has happened - - - I don't know. I think just watching it again made me realise that maybe that - (clears throat) - I just need a drink. Haven't had breakfast, so - - -

Q 70: OK. --- I dunno. I guess just getting back and, made me think of it, that maybe some of that stuff didn't happen. Maybe I just said it to cover up 'cause maybe I was embarrassed or I just didn't, like, I didn't know, maybe there, like, maybe I thought there was a right answer and there was a wrong answer or something. I don't know. It's all so long ago. Don't know what I was thinking.

[67]

No. Now, when you were interviewed for the second time, on 23 April 2013, you were asked this - 68 to 70, your Honour - 'Tell me why your recollection has changed.' 'What do you - ' Next question: 'Tell me why your memory of what has happened - ' and your answer, 'I don't know. I think just watching it again made me realise that maybe that - 'and the next question, 'OK.' And then this: 'I dunno. I guess just getting back and - made me think of it, that maybe some of that stuff didn't happen. Maybe I just said it to cover up, because maybe I was embarrassed, or I just didn't like - I didn't now. Maybe there - like, maybe I thought there was a right answer and there was a wrong answer or something. I don't know. It's all so long ago. Don't know that I was thinking'. Do you remember giving that answer? --- yes, I do.

And were you being truthful when you gave that answer? --- Yes, I was.

So when you said, 'Maybe I thought there was a right answer, and maybe there was as [sic] wrong answer or something. I don't know. I don't know what I was thinking', does that mean that you were just giving the answer that you thought was expected of you? --- No.

Does it mean that you thought that there was a right answer and there was a wrong answer? --- Sorry. Can you repeat that?

All right. What do you mean by 'Maybe I thought there was a right answer, and there was a wrong answer'? --- I don't know. Maybe I - I - I don't know how to explain it. I know what I'm trying to say; I just can't - - -

HER HONOUR: Then just take a minute, [C]. It's important. Try to explain it?---Maybe I thought that, like it would make myself look bad, or - I don't know. Just - - -

What do you mean, make yourself look bad? --- Like, I didn't want it - I guess, maybe I said that because I didn't want to like - I didn't want it to, like, sound like it was my fault, like - yeah.

...

How can we tell which of your answers, [C] - you say that maybe some of that stuff didn't happen? --- Because I corrected what I said didn't happen and I was telling the truth when I corrected it.

...

So when you say 'right answer' and 'wrong answer', is it the fact that in your first interview you weren't telling the truth, were you? --- I was telling the truth except for those parts that I changed.

None of what's in your first interview about what you said [the applicant] did to you - none of it's the truth, is it? --- It's all the truth, except for the parts that I changed, which I was very truthful about changing them.

See, in your first version of what you said, where you say that [the applicant] dragged you (indistinct) - where you say that he chased you, and they you say that he knocked you over - is that right? --- Yes.

That didn't happen, did it? --- No, it didn't.

And the on all fours? --- That didn't happen.

That didn't happen. That he kind of picked you up and put you down on the couch? --- No.

That didn't' happen - No.

You were never on all fours? --- No.

Your jeans were never forced down to down to your ankles. That didn't - - -? --- My jeans were forced down to my ankles.

That didn't happen, did it? --- It did.

There was no licking of your vagina. That didn't happen, did it? --- It did.

On the version that you gave what might be described as your second version, [the applicant] didn't grab you and lead you to the couch area, did he?--- He did. He did grab me and he did lead me, but not in an aggressive kind of grab.

He didn't pull your legs apart, did he? --- He did.

He didn't lick your vagina? --- He did.

You didn't tell him to stop, as you say ---? --- I didn't.

Didn't. But there was nothing happening to tell him to stop. Nothing was happening was it, [C]? --- No, I was completely in shock mode. I didn't know what to do. I just stopped. I couldn't do anything.

[73]

Q 7: Excellent. Very good. What you tell me today is really important. --- Well, my friend [C], she came to me on Monday of this week and she told me that she was raped by one of my friends, [D's] dad and I was really shocked. But one night I went over to a friend's, her house for a sleepover and I woke up in the middle of the night and [D] wasn't there and [D's] dad [the applicant] was there lying next to [C] and I asked him, Why are lying next to [C] and where is [D], and he said, [D] couldn't sleep, so I put her back in her room and [C] couldn't sleep so I'm patting her to sleep, and I wasn't worried, because I didn't think anything bad was happening, so I fell back asleep. I woke up again. I hear [C] say, Help. Get off me. I can call the police, you know, and in the morning I ask her, [C], why did you say this and why did you say you could tell the police, and she said, Don't worry, [F], and she just walks off.

...

Q 31: And tell me everything from the time you woke up to the time you went back to sleep that first time. Tell me everything from the start to the finish that you saw or heard. Well, I woke up and I saw [the applicant] lying next to [C] and I asked him, Why are you next to [C] and where is [D], and he said, Well, [D] couldn't sleep and [C] couldn't sleep either, so he put [D] back in, he said he put [D] back in her bed and he said he was just patting [C] to sleep and then I just fell back asleep thinking it wouldn't really matter what it was because it was just, I wouldn't, I didn't know that anything was really happening, so ---

...

Q 33: OK. So I'm going to take you back to when you saw [the applicant], lying next to [C]. Tell me about where he was and where [C] was. --- Well, [C] was, well, he was lying across two mattresses, well, like one of the mattresses and he was right next to [C], like, really, really closely. But that's all really I know.

...

Q 35: OK. And how as [C] lying? --- She was lying on her back, but, yeah, it looked like he was trying to move her legs or something. I don't know.

Q 36: And why do you say that? --- I'm not sure. I just, that's really all I remember.

Q 37: OK. And why do you thing he was trying to move her legs? --- I don't know.

Q 38: Is that something you've been told or is that something that you saw.

--- That's something I saw.

...

Q 54: And when you woke up again, tell me everything that you heard and saw from the start to the finish before you went back to sleep. ---Well, I woke up, I heard [C] say, I'm not quite sure, but I think she said, Stop, something else, but I couldn't quite make out what she said, and then, I can call the police, you know and that's all I remember, and he, like, I don't know if he was saying OK, OK, or, he was mumbling. I couldn't hear what he said.

Q 55: OK. And what did you do then? --- I said, [C] what's wrong, and she said, [F], don't worry, and I didn't worry, because I didn't think anything that bad would happen - - -

Q 56: Mm'hm. - - - and so I wake up in the morning, of course again wake up in the morning and I asked [C], [C], why did you say, Stop, and I can call the police, you know, and she said, [F], don't worry, it's nothing, and so I don't worry, I forget about it and she tells me Monday and that's when I, and that's when she tells me.

Q 57: OK. On that day or that night that you were staying at [D's] and you saw [the applicant] lying next to [C], tell me what [the applicant] was wearing.---I couldn't see him and I couldn't see, I could only see his head. He was wearing a shirt, but I didn't know if he was wearing pants or not.

Q58: OK. So what part of his body did you see? --- I saw him from his , right here up.

Q 59: OK. And how could you see that? --- Because he was, I'm not sure. I could just, he was kind of sitting up a bit, like, up, and it was just about starting to get lighter outside, so I could see him a bit.

[75]

In relation to you going back to - sorry. You've told us you heard a conversation, or you had a conversation with [the applicant] at that stage; is that right? --- Yes.

One of the things that you say that [the applicant] said to you was, '[D] couldn't sleep, so I put her back in her room'. That was correct, wasn't it? --- Yes.

See [the applicant] denies that he spoke to you at any stage on that night, and what I'm suggesting to you is that there was no conversation with you and [the applicant], was there, [F]? --- I believe 100 per cent that I spoke to [the applicant].

...

Is the answer - the question that I was directly putting to you was that you weren't troubled by anything you saw or heard because you were able to go back to sleep. Do you agree with that?

HER HONOUR: At that stage, [F}? --- At that stage pretty much, yes.

...

Now when you spoke to the police and you gave your version of events, you told the police that you heard these words: 'I heard [C] say, 'Help, get off me'. That's what you told the police when you were interviewed, didn't you? --- Yes.

But you didn't, in fact, hear those words, did you, [F]? --- No.

No. And in relation to that - what you told the police about hearing those words was wrong, wasn't it? --- Yes.

And what you told the police about hearing those words wasn't truthful, was it? --- I guess not.

In relation to - let me put his proposition to you, [F]. You gave different versions to the police - I will withdraw that. You told the police something that wasn't true about hearing 'Help, get off me' because you were making up that you overheard a conversation between [C] and [the applicant], weren't you? --- I wasn't making it up. I just remember it may differently or said something incorrect.

And I suggest to you the - that whilst [the applicant] was lying in the lounge, he was never lying really close to [C], was he? --- No, I remember him right next to [C].

And I suggest to you that there never was a conversation between you and [C] in the lounge room that night where you said to [C] words to the effect of, 'What's wrong' was there? --- No. I remember that perfectly.

Well, do you say [the applicant] was present for that conversation or do you say that he'd left by that stage? --- No he was next to [C] still.

[108]

82 The particular facts of Shah and Morabito give context to - and explain - the metaphors that were used. In Shah the security camera footage was the 'solid obstacle' to conviction; and in Morabito, because of the alternative ways in which the prosecution case was put, more than 'one path to a conviction [was] open'. In neither of those cases, however, did the court essay any additional requirement to, or qualification of, the test to be derived from M. It follows, in my view, that similar metaphors generally would be inapt to cases which turn on credibility. In this regard it will be remembered that M itself did not involve only a single piece of evidence that was a solid obstacle to conviction, or more than one path to conviction that the appellant needed to disentangle. Rather, in M it was a concatenation of circumstances which led to the conclusion that the convictions could not stand. M, it will be remembered, involved allegations of sexual offending by a father against a daughter. The majority in the High Court (Mason CJ, Deane, Dawson and Toohey JJ)[28] found the convictions to be unsafe and unsatisfactory - and entered verdicts of acquittal - for reasons which included discrepancies between what the complainant told police and what she said in court; inconsistencies between the complainant's evidence and medical evidence; inconsistencies between the complainant's evidence and the appellant's wife's evidence as to surrounding circumstances; a lack of timely complaint; and an absence of evidence supporting the complainant's version; in circumstances where the complainant, through her previous behaviour, revealed a capacity to make a complaint of a sexual nature to a person in authority about a member of her family. Added to the inconsistencies and discrepancies was 'the improbability of the appellant acting as he was alleged to have done in the circumstances prevailing ... namely, on a squeaky bed in an unlocked bedroom which was only a short distance from, and within hearing distance of, another bedroom occupied by the appellant's wife, in a fully occupied, small house'. Moreover, the appellant, who called evidence of good character at trial, had made full denials in his interview and gave evidence on oath at his trial.

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