O'Reilly v The Queen [2015] VSCA 19

Court of Appeal (Vic)|2015-02-16|Before: Mr P, Whelan JA, Weinberg JA, Priest JA, Beach JA

DPP v O'Reilly (Unreported, County Court of Victoria, Judge Mullaly, 22 November 2013)

CRIMINAL LAW - Conviction - Five counts of sexual penetration of a child under the age of 16 - Offences allegedly committed between 1996 and 1998 - Crown case principally relied on evidence of complainant - Complainant's evidence at special hearing not consistent with particulars of charges and version of events given during VARE - Whether verdicts unsafe and unsatisfactory - Appeal allowed - Verdicts of acquittal entered.

1 On 25 February 2013, the appellant was convicted by a jury in the County Court, at Melbourne, on five charges of taking part in an act of sexual penetration with a child under 16 years ('the trial offences'). He was sentenced, on 22 November 2013, as follows:

Taking part in an act of sexual penetration with a child under 16

Other relevant orders: Sentenced as a serious sexual offender in respect of charges 3, 4, and 5, pursuant to Section 6F of the Sentencing Act 1991. Forensic sample on charges 1 to 5, pursuant to Section 464ZF(2) of the Crimes Act 1958. Registered for life as a sex offender pursuant to Section 34 of the Sex Offenders Registration Act 2004.

**2 The appellant was also sentenced, at the same time, in respect of a further count of taking part in an act of sexual penetration with a child under 16, to which he had pleaded guilty ('the plea offence'). That offence was committed whilst the appellant was on bail, awaiting trial for the offences referred to above and, self-evidently, concerned a different complainant. He was sentenced to 2 years and 6 months' imprisonment in relation to that offence. The sentencing judge ordered that 2 years of that sentence be served cumulatively upon the sentence he imposed in respect of the trial offences, making a total effective sentence of 9 years and 9 months' imprisonment. A single non-parole period of 7 years was fixed.

3 The appellant sought leave to appeal against both his conviction and sentence in respect of the trial offences. He has not sought to appeal either the conviction or sentence imposed in respect of the plea offence.

4 On 20 August 2014, Whelan JA granted the appellant leave to appeal against conviction. His Honour referred the application for leave to appeal against sentence to this Court for determination. Having regard to our conclusion as to the outcome of the conviction appeal, it is unnecessary to say anything further regarding that application.**

**5 The indictment contained five charges. Each of them alleged that the appellant, at Yarragon, had taken part in an act of sexual penetration involving the complainant. Although each offence was particularised as having been committed between 1 December 1996 and 31 December 1998, the Crown case, as detailed in advance and as opened to the jury, was that the first four of these offences occurred on the very same evening, and the fifth offence on the following morning. Because they were all said to have been committed at Yarragon, it necessarily followed that any further offending that may have occurred subsequently, as for example by way of uncharged acts committed after the complainant had moved from Yarragon to Warragul, were not the subject of the charges brought in the indictment.

6 Charge 1 alleged sexual penetration on the part of the appellant by introducing his penis into the complainant's anus. Charge 2 was to the same effect, but on an occasion other than that referred to in charge 1. Charge 3 alleged that the appellant procured the complainant to introduce his penis into the appellant's mouth. Charge 4 was the converse, alleging that the appellant introduced his penis into the complainant's mouth. Charge 5 alleged an act of sexual penetration on the part of the appellant by introducing his penis into the complainant's anus, but as particularised was said to have occurred the following morning.**

7 The appellant was granted leave to appeal against his conviction on the following grounds:

1. The verdicts on charges 3 and 4 are unsafe and unsatisfactory.

2. The verdict on charge 5 is unsafe and unsatisfactory.

3. The verdict on charge 2 is unsafe and unsatisfactory.

Further, or in the alternative, the verdicts on charges 1-5 are unsafe and unsatisfactory.

8 Leave to appeal on a further ground, which the appellant had abandoned at the hearing of his leave application, was refused.

**9 As previously indicated, the offending which is the subject of this appeal was said to have occurred between December 1996 and December 1998 at a rental property in Yarragon, a small town in the Latrobe Valley. For part of that period, the complainant lived with his mother, and five other siblings at that property.

10 The complainant, who was aged between 5 and 7 at the time, was born profoundly deaf. The appellant was then aged between 18 and 20.

11 The evidence was that the complainant's mother had been in a relationship with one 'GT', a friend of the appellant, while they were living at Yarragon. For a time, the appellant occupied a bungalow at the rear of the Yarragon property. After the complainant's family moved to Warragul, the appellant joined them, and for a time lived with them in the house they were then occupying.

12 By way of overview, the offending was described by the sentencing judge, in his sentencing remarks, as follows:**

On an occasion [the complainant] was taking a shower, [and] called out to his mother for a towel. [The appellant] took the towel into the bathroom and remained there. [The appellant] grabbed ... [the complainant] and pushed him to the floor. [The appellant] penetrated [the complainant's] anus causing him great pain. [The complainant] did his best to scream out but [the appellant] signalled for him to be quiet...

[The appellant] then followed [the complainant] into his bedroom where [the appellant] again penetrated his anus while in his bed. This was followed by oral penetrations. That is, [the appellant] making [the complainant] suck [the appellant's] penis and [the appellant] sucking [the complainant's] penis. The next day [the appellant] again penetrated [the complainant's] anus.[1]

**13 In addition to the charged acts described above, the complainant gave evidence of having been sexually assaulted by the appellant on many other occasions. These constituted uncharged acts, and were said to have been committed at both the Yarragon and Warragul properties.

14 The principal, and indeed almost sole, evidence upon which the Crown relied was that given by the complainant. It should be noted that his evidence throughout was given through an Auslan interpreter, with all the difficulties that attended that course. It should further be noted that the complainant has never been able to read.

15 A Video and Recorded Evidence ('VARE')[2] interview conducted with the complainant on 1 June 2007 was played to the jury. He adopted it as true and correct, and it stood as his evidence-in-chief.

16 Prior to the commencement of the trial, a special hearing[3] was conducted. The complainant was cross-examined at some length by counsel on behalf of the accused. That special hearing took place over two separate occasions, first between 20-22 November 2012, and again on 11 February 2013. On 18 and 20 February 2013, a DVD recording of the special hearing was played to the jury. They were also provided with a transcript of the complainant's evidence given at that hearing.

17 In order to deal with the grounds of appeal argued before this Court, it is necessary to set out in detail the evidence given by the complainant in relation to each of the five charges. We will focus upon his account of events as set out in the VARE, as well as his answers to questions under cross-examination, and re-examination, during the course of the special hearing.**

**18 According to the complainant, whose evidence in the VARE was, as we have said, given in 2007, the first of the five offences with which the appellant was charged was committed in the following circumstances. The appellant had been staying at the complainant's house in Yarragon, and helping the complainant's mother with the cleaning. The complainant was in the bathroom taking a shower whilst his mother, brother, and sisters were in bed.

19 The precise terms in which this evidence was given in the VARE should be noted. When asked by the police officer conducting the interview about the 'first occasion' upon which the complainant had been sexually assaulted, he made it clear that the offence had taken place at Yarragon. He said that the man who attacked him had been staying in the house, indeed sharing his room. The questioning continued:**

Q47: So, the first time this man had sex with you, was that at the house?

A: Yes

Q48: You said the first time was in the bathroom?

A: Yes

Q49: Was anybody else home when that happened?

A: Yes. It happened in the bathroom and my room.

Interpreter

He hasn't understood that question

Senior Constable Langerak

Q50: The first time in the bathroom - - -

A: Yes.

Q51: Was anybody else at home?

A: Yes. People were sleeping. I was in the shower. When I got out of the shower, the man came into the bathroom and had sex with me and I was shocked at that.

Q52: When he came into the bathroom what was the first thing that he did?

A: He was in my arse.

Q53: OK. Before he went into your arse, what has happened. What has he done?

A: The man gave me a towel. I said thank you and went to go out and he stayed. I wanted him to go out and he stayed. I said, 'What are you doing'. He put the towel on the floor and then the man grabbed me, grabbed on my arms, grabbed hold of me and put me on the floor and that's when he went into my arse.

Q54: You said before that you were screaming?

A: Yes.

Q55: Did anybody hear?

A: Yes. When the man was in my arse I screamed and the man said, 'Shush', but I continued to scream and then he stopped and got off me. Then I said that hurt and I went to my room and, yeah, got dressed, and I wanted to go to sleep, and the man had sex with me.

Q 56: So, after the bathroom you went to your bedroom?

A: Yes.

20 In the VARE, the complainant went on to say that the act of penetration had caused him a great deal of pain. That pain continued throughout the night, albeit he had not experienced any bleeding. He claimed that the appellant had told him not to tell anyone what had occurred. He said that he was frightened and, for that reason, had not reported the incident at the time.

**21 As previously noted, the complainant was cross-examined at some length regarding this 'first occasion'. He acknowledged that at the time of the alleged offending, his relationship with his mother had been close. When challenged as to why he had not told her what the appellant had done, he reiterated what he had said in the VARE, namely that he had been too frightened to speak.

22 The cross-examination then moved from the incident giving rise to charge 1 (which of course was said to have occurred in the complainant's bathroom), to his description of the sequence of assaults said to have been perpetrated upon him shortly afterwards, in his bedroom.**

23 The complainant's evidence was that after the appellant had sexually penetrated him on the floor of his bathroom, the complainant had gone to bed, and had been 'straight away' further sexually assaulted. The VARE continued:

Q59: You explained to me what happened in the bathroom. Can you do that with what happened in the bedroom?

A: I was asleep in my bed. Then he came on to my bed next to me. He touched my penis. He pulled my pants down. Then he pulled his own pants down. He had sex with me and he played, both penises touching. Then it finished. It stopped. I pulled my pants up. I sleep, I wake up, I sleep.

Q60: Was there any screaming or calling out that time?

A: I didn't scream. No.

**24 The complainant was cross-examined about the offence particularised as charge 2 at various points during the course of the special hearing. The first exchange took place on 21 November 2012, after the appellant had been cross-examined in relation to the alleged events giving rise to charge 1.

25 The relevant portion of the transcript reads as follows:**

Counsel: So nothing happens to you for the rest of that night because you're in your bed crying; is that right, lying awake?

Complainant: Yes, something did happen. [The appellant] did it again. He was with me in the bed.

Counsel: He came into your room I take it?

Complainant: Yes.

Counsel: And you can remember him doing that?

Complainant: Sorry, what did you say?

Counsel: You saw him coming into your room; is that right?

Complainant: Yes, he came in. He got into my bed.

Counsel: You were still in a lot of pain from what had occurred in the bathroom; is that what you say?

Complainant: Yes.

Counsel: When was it that [the appellant] came into your bedroom that night?

Complainant: It was that night. I left the bathroom, I was on my own in my bed and he came in.

Counsel: Was it straight away?

Complainant: Yes.

Counsel: And you say ... that he placed his penis all the way inside your bottom again?

Complainant: Yes.

26 The issue was revisited, and an exchange to similar effect took place, shortly afterwards:

Counsel: After the shower incident you went into your bedroom; is that right?

Complainant: I finished my shower. He grabbed me.

...

Counsel: I'll stop you there. After that point that you say that [the appellant] had sex with you, you went to your bedroom after that; is that right?

Complainant: After [the complainant] had had sex with me, yes I went straight to my bedroom.

Counsel: And you were - you got into bed?

Complainant: Yes.

Counsel: And the next thing that occurred is that [the appellant] came into the room and also got into your bed; correct?

Complainant: Yes.

Counsel: And you say the very next thing that happened after he got into your bed was that he once again had sex with you?

Complainant: Yes.

Counsel: And what I mean by 'Sex' is that he placed his penis in your bottom; correct?

Complainant: He put his penis on my penis first and was playing with it.

Counsel: I'll come back to that ... But is the next thing that happens after that, that he places his penis inside your bottom according to you?

Interpreter: Interpreter question: When you say 'The next thing that happened after "that"', the 'That' is that referring to the playing with the penises?

Counsel: Yes.

Complainant: Yes.

27 On the following day, the complainant was cross-examined further in relation to charge 2. A number of questions were put to him regarding, for example, a suggested discrepancy between his evidence at the VARE, and what he now said, at the special hearing, as to whether or not he had been awake at the time that this incident occurred. The transcript relevantly reads as follows:

Counsel: ... the next topic that I want to ask you about was that yesterday you said that you were awake when [the appellant] came into your room and got into bed with you. Do you remember saying that?

Complainant: Yes, I was awake.

Counsel: That was the truth, was it?

Complainant: Yes

Counsel: ... did you also say to the police that you were asleep in your bed when [the appellant] or whoever it is came into your room?

Complainant: No, no.

Counsel: Those words were not said by you to the police in the interview in 2007. Is that what you're saying?

Complainant: No, I didn't say that.

Counsel: Did you tell police in the interview in 2007 that you were asleep when this man came into the room?

Judge: The answer to [question 59] is not quite that. It might be best to put the words. You don't have to put the question.

Counsel: I'll ask another question before that. Your recollection of things from yesterday is that [the appellant] came into your room straight after the shower. Do you remember giving that evidence?

Complainant: Yes.

Counsel: You went in there first and [the appellant] followed you in there. Is that right?

Complainant: No, he didn't follow me, no.

Counsel: Did you say to police in the 2007 interview, 'I was asleep in my bed and then he came onto my bed'?

Complainant: I didn't say I was asleep.

Counsel: Do you disagree that the words that I just read out to you ... did you say those words to the police?

Interpreter: For the sake of interpretation you'll need to repeat the words, please.

Counsel: ... did you say 'I was asleep in my bed and then it came onto my bed'?

Judge: Just start again. Because it sounds now like you are not just making an error, because you've made it twice, that it's actually there. And it isn't.

Counsel: It isn't. (To witness) All right, I'll say that again ... 'I was asleep in my bed and then he came onto my bed.' Were those words said by you to the police?

Complainant: That was in Warragul.

Counsel: Did you say those words to the police or not ...?

Complainant: Yes, that was in Warragul.[4]

28 Shortly after this exchange, an issue arose as to the accuracy of the interpretation of some of the complainant's responses during the VARE. The special hearing was adjourned in order for that issue to be resolved. It recommenced some 11 weeks later, in February 2013, whereupon defence counsel continued questioning the complainant on this point:

Counsel: [The complainant], today you had signed to you a part of the information you provided to the police; that's correct isn't it?

Complainant: Yes.

Counsel: And the part that you had signed to you by the interpreter was the piece that we were speaking about when we were last together in the court, that's right?

Complainant: Yes.

Counsel: And that was the part about you being asleep in your bed and then [the appellant] coming into the room; that's correct isn't it?

Complainant: Yes.

Counsel: On the last occasion we were in court together you said that that occurred when you were in the Warragul house; is that correct?

...

Complainant: Yes

Counsel: I take it that you maintain that that occurred in the Warragul house?

Complainant: Yes.[5]

**29 By this stage, it could be said, the complainant had arguably recanted from his VARE account of the incident in his bed at Yarragon, and transposed that incident into an event that took place at a much later stage, after the family moved to Warragul. On one view, he had said that on no fewer than four occasions.

30 In re-examination, the complainant was asked again about all of the matters said to have occurred in his bedroom, immediately after the alleged incident in the bathroom. The relevant portion of the transcript reads as follows:**

Prosecutor: Whilst [the appellant] was in the bedroom on that first occasion with you what happened?

Complainant: [The appellant] - well that happened in the shower, he had sex with me in the shower, and then into the room. I was putting my clothes on, got into bed and somehow [the appellant] came in and [the appellant] then - he pulled my pants down and that's what happened, then that's what you're talking about happened.

Prosecutor: What was the activity that then happened after he'd pulled your pants down?

Complainant: OK, he pulled my pants down and he played with my penis and then next [the appellant] pulled his pants down and our penises touched.

Prosecutor: And then what happened?

Complainant: After that I can't remember exactly what happened but what I do remember was up to that time that's clear, after that I can't remember.

...

Prosecutor: Do you recall what happened with your trousers?

Complainant: I pulled my pants up myself and then - I can't remember.

Prosecutor: And when did you pull your pants up?

Complainant: I can't remember what time it was, when - I had no clock in my room.

Judge: I think the question really was directed at what was the thing that had happened last or just prior to pulling up your pants. Are you able to say?

Complainant: No still can't remember.

...

Prosecutor: Before you left the room was anyone else there?

Complainant: So after the shower I went to my bedroom and I only - I had my shower and I went into my room and then [the appellant] came in and did all those things to me. I can't remember all the details but I do remember that he touched my penis, I pulled my pants up afterwards and it was hard for me to sleep though. And I can't remember the time, after that I can't remember the time. It was still night though.[6]

31 The effect of all this, so it was submitted, was to cast serious doubt upon the complainant's evidence in support of charge 2. Both the cross-examination at the special hearing (which elicited the transposition to Warragul), and the re-examination (which arguably made matters even worse for the Crown on the charge of sexual penetration by indicating that the complainant had no memory of anything that occurred apart from his penis and that of the appellant touching) were said to have negated the probative value of anything that might have been said in support of this charge in the VARE.

**32 These charges concerned the complainant's allegation that the appellant had both sucked his penis, and forced him to suck the appellant's penis.

33 The evidence in support of these two charges, as led through adoption of the answers given during the course of the VARE, was as follows:**

Q78 Ok when you say he had sex with you, you have described what happened in the bathroom and in the bedroom where he has gone in your arse. Has this man done anything different than that?

He sucked my penis. He asked me to suck his penis. I did it. That's what happened.

Q79 With oral sex, what is that? What are you doing?

A I don't know.

Q80 When you talk about sex and your bum, what was this man putting into your bum?

A Can you say that again, please?

Q81 When this man had sex with you, you said he went into your bum?

A Mm'hm.

Q82 Which part of him went in your bum?

A His penis.

Q83 When you talk about oral sex, which parts of the body are you talking about?

I'll explain. First of all, when it started in my room, the man had sex with me, with my arse with his dick. In my arse, and then I screamed and the man said, 'Shush', and I continued to scream and then he got off me with his penis, and I got dressed. That's when I went into my bedroom to go to sleep and the man came in. He was on my bed and had sex with me again. He put my penis in and out of his mouth. Then the man asked me to do it. He wanted me to suck his penis. I did it. Then he went. I don't know where. I went to sleep. Then the next day in the morning I woke up, I said good morning, and then he had sex with me again in my room, and then the next day was the same.[7]

34 After reference was made to the incident giving rise to charge 2,[8] the cross-examination of the complainant, so far as relevant to charges 3 and 4, continued as follows:

Counsel: And that after he finishes having sex with you, he leaves the room; is that right?

Complainant: Yes, it should be the case.

Counsel: And he no longer stays in your room?

Complainant: Well, what I'm saying is that should be the case. I'm saying that I don't remember precisely but I think that that should be the case that he left. I'm not exactly sure. I can't remember.

Counsel: After he had his penis inside you, nothing else sexual occurred between you and him; that's right, isn't it?

Complainant: After those two times, it - yes, that was enough but after a couple of days he was back again.

Counsel: Yes, on this night ... I apologise for any ambiguity or any confusion in the question. I'll ask it again. After he had his penis inside you, nothing else happened sexually between you and him that night; correct?

Complainant: What are you referring to after - I'm not sure. What do you mean 'After that'?

Counsel: Is it your evidence that he left the room and nothing else happened that night?

Complainant: Yes, that's right.[9]

**35 Having elicited these somewhat helpful answers, at least as far as charges 3 and 4 were concerned, defence counsel felt impelled, for reasons that are not immediately apparent, to revisit the matter. He specifically put to the complainant that no oral sex had ever taken place between him and the appellant. On this occasion, he received a somewhat less helpful response. The complainant replied that counsel was wrong, and that '[h]e [the appellant] did do that to me'.

36 In re-examination, the prosecutor referred to that exchange, before continuing:**

Prosecutor: Did [the appellant] place his penis in your mouth on any occasion?

Complainant: Yes, it was.

Prosecutor: When do you say that those activities occurred?

Judge: What's the relevance here? At a house or at night? What do you mean?

Prosecutor: At which house?

Complainant: Both, both houses.

Prosecutor: And can you describe for the court the first occasion on which you say that activity occurred?

Complainant: That happened at the Yarragon house.

Prosecutor: And can you describe for the court the first time that had happened in the Yarragon house?

Complainant: I can't remember exactly but what I do remember is that some things happened there and it happened there.

**37 The complainant's attention was then directed specifically to the events said to have occurred in the bedroom, immediately following the alleged bathroom incident. He was asked to give an account of those events. We have already set out the relevant portion of the transcript which records that account.[10]

38 Self-evidently, there are difficulties associated with the way in which the evidence concerning charges 3 and 4 ultimately came out. We shall return to that issue in due course.**

39 This charge concerned an allegation of anal intercourse said to have taken place the morning after the events giving rises to charges 1-4. The primary evidence upon which the Crown relied in relation to this charge consisted of the complainant's responses, provided during the VARE, to question 83, which we have set out previously,[11] and also question 77, which was as follows:

Q77: Did anything else happen that night?

A: No. When I went to sleep, the man was sleeping with me and then the next day he had sex with me again. Then the next day again, again, again, again, every time.

40 The complainant's evidence at the special hearing in relation to charge 5 differed significantly from the account that he provided during the VARE. Whereas he had previously claimed that the appellant had anal intercourse with him on the morning following the events giving rise to charges 1-4, he appeared, under cross-examination, to suggest that no further act of anal intercourse took place until several days afterwards. The relevant portions of the transcript are as follows:

Counsel: You can't say when it was that [the appellant] next had his penis inside your bottom again; is that right?

Complainant: No, I can't remember.

Counsel: And you would not be able to say how many days, weeks or months later that that occurred, if at all?

Complainant: No, it was after a few days it happened again.[12]

**41 In the same vein, when defence counsel later suggested to the complainant that no further sexual activity occurred after the alleged act of anal penetration giving rise to charge 2, his response was: 'yes, that was enough but after a couple of days he was back again'.[13]

42 Further discrepancies emerged in re-examination. The complainant stated that, after the incidents giving rise to charges 1-4, the next occasion on which he saw the appellant was 'in the lounge room' the following day. When asked whether any 'sexual activity' took place that day, he responded to the effect that nothing occurred in the morning, but that sexual activity did occur that evening.

43 In effect then, the issue to be determined is whether these varying answers given by the complainant to questions regarding the events surrounding charge 5 amount, in effect, to a recantation of the specific allegation made in the VARE that he had been anally penetrated, for a third time, in his bedroom, on the morning immediately after the various offences particularised as charges 1-4.**

**44 In its written case, the Crown contended that, notwithstanding the inconsistencies that emerged during the course of the special hearing, there was sufficient evidence available to the jury to conclude beyond reasonable doubt that charge 5 had been proved. That submission was put on the basis that, in order to sustain the charge, the jury needed only to be satisfied that there was an occasion of anal penetration as alleged on the 'following day', after the events giving rise to charges 1-4. The conflicting evidence given by the complainant as to whether this had occurred the next morning (as he claimed in his VARE) or alternatively that evening (as he later suggested during the special hearing), was in that sense immaterial, and did not preclude the possibility of a conviction.

45 At the hearing of the appeal, however, Mr Kidd SC conceded that the verdict on charge 5 could not, in fact, be sustained. In our view, that concession was properly made. Even if it be accepted that the jury needed only to be satisfied that the alleged act of anal penetration giving rise to charge 5 occurred at some time on the following day, the issue for the Crown was that, based on the responses provided by the complainant during the special hearing, the jury could not reasonably have been so satisfied.

46 On two separate occasions in cross-examination, the complainant explicitly stated that no further act of sexual penetration took place until at least a couple of days after the events giving rise to charges 1-4. Whilst he did subsequently claim that some 'sexual activity' took place the following evening, that evidence was insufficient to establish that what had in fact occurred was the charged act of anal penetration. In those circumstances, the conviction on charge 5 could not be permitted to stand.**

**47 The appellant submitted that the evidence before the jury was insufficient to establish that the acts of mutual oral sex the subject of charges 3 and 4 had occurred.

48 He relied on the complainant's statement, elicited in cross-examination, to the effect that after the alleged act of sexual penetration the subject of charge 2, 'nothing else sexually' occurred between them.[14] The appellant also relied on the fact that the complainant made no mention of the alleged mutual oral sex in re-examination, even though he was specifically asked, more than once, about what had occurred in his bedroom following the alleged sexual penetration in the bathroom.

49 The Crown did not dispute that the complainant had, on several occasions, failed to mention during the special hearing the oral sex which was said to give rise to charges 3 and 4. However, it submitted that this failure, of itself, did not mean that the conviction on charges 3 and 4 must necessarily be regarded as unsafe and unsatisfactory. The argument was put at the oral hearing as follows:**

But we submit that there is a difference between a case, especially in the context of this VARE procedure, where offending involving children and often the children are still giving evidence on the special hearing as young persons, I know that that didn't happen here, but in that context, simply because a child gives evidence about a particular sexual episode on the VARE and the child is unable to confirm that and doesn't recall that at the special hearing and that fact alone can't result in the conviction being necessarily unsafe and unsatisfactory. One needs to look to the explanations. One needs look to the precision of the cross examination and whether or not it was recanted. If it was recanted, then clearly, as I've made the concession with respect to Charge 5, the ground is made good. If it's short of recantation and it can be explained by memory lapse and there is evidence there that might allow the jury to conclude that it was a genuine memory lapse and it was not a witness who was not telling the truth at any time, then the conviction isn't necessarily unsafe.

**50 Counsel for the Crown pointed to several matters in the present case which, he submitted, meant that the convictions in respect of charges 3 and 4 could not be regarded as unsafe or unsatisfactory.

51 First, it was submitted that the responses elicited from the complainant in cross-examination, and during the course of re-examination, should not be understood as any sort of recantation of what he had said in his VARE. In that regard, counsel referred specifically to the exchange we have set out previously (in which the complainant appeared to agree with the proposition put to him by defence counsel that, after the alleged act of anal penetration constituting charge 2 took place, 'nothing else happened' that night). [15] He submitted that it was self-evident from the transcript that the complainant was operating under some confusion as to the import of the questions that were being put to him, and that those questions were themselves attenuated by a degree of ambiguity.

52 Counsel for the Crown also pointed to the fact that, during the special hearing, the complainant at all times maintained that oral sex did take place with the appellant at the Yarragon house, albeit that he could not recall the details of the first occasion on which it happened.[16] He submitted that this was consistent, or at least did not conflict, with the account the complainant gave in the VARE.

53 Secondly, counsel for the Crown submitted that it was open for the jury in the present case to conclude that the failure of the complainant to confirm the allegations of mutual oral sex in the special hearing, as well as the other inconsistencies between the evidence he provided in the VARE and at the special hearing, were the result of genuine memory lapse. This memory lapse was explicable by reference to the rigours of cross examination, which the complainant was self-evidently finding stressful, as well as the difficulties and confusion inherent in the interpretation process. Reference was made to various passages of the transcript which were said to be illustrative of these matters.

54 Counsel further submitted that it was scarcely surprising that the complainant might struggle to recall events that occurred so many years before, having given an account of those matters in 2007, in the VARE, when his memory would have been fresher than it was by the time of the special hearing. In those circumstances, it was open to the jury to conclude that the complainant was a witness of truth, and to fall back on the contents of the VARE, the truth of which he had attested to.

55 As against that, it should be noted that the complainant was asked specifically about his memory of the events in question, and claimed that, in some respects, it was better in 2012 than it had been five years earlier.

56 Ultimately, it was submitted on behalf of the Crown that, making due allowance for the fact that the complainant may have had something of a lapse in memory in relation to the specific details of what occurred on the night in question, the fact that he gave the evidence that he did in the VARE was sufficient.

57 It was submitted on behalf of the appellant, on the other hand, that the complainant had been over his VARE on at least two occasions shortly before the special hearing. He had any number of opportunities to recall having been subjected to oral sex in the way described back in 2007, but conspicuously did not do so. It was submitted that, in those circumstances, and bearing in mind the obvious difficulties with receiving evidence as to what was 'said' during the course of the VARE, this Court should have a doubt as to the appellant's guilt in relation to these two charges. Of course, if this Court had such a doubt, the jury ought also to have done so. Accordingly, these two convictions should be quashed.**

**58 The appellant's submissions in relation to charge 2 focussed on the passages of the transcript of the complainant's cross-examination and re-examination which we have set out previously.[17]

59 As we have indicated, the appellant submitted that the responses elicited from the complainant in cross-examination regarding charge 2 differed quite fundamentally from the version of events he gave at the VARE, and upon which the particulars to the charge were based.

60 Whereas in the VARE the complainant had claimed that the act of sexual penetration giving rise to charge 2 occurred in his bedroom almost immediately after he was assaulted in the bathroom, the complainant's responses in cross-examination amounted, in effect, to a complete recantation of that claim. The incident was now said to have occurred at a much later time, after the family had moved to Warragul.

61 The appellant also relied on the complainant's stated lack of memory, as revealed through the re-examination.

62 In those circumstances, it was submitted that the jury ought not have been satisfied beyond reasonable doubt that the incident giving rise to charge 2 had taken place.

63 The Crown challenged this analysis of the evidence in support of charge 2. It submitted that the criticisms levelled by the appellant were premised on a misinterpretation of the relevant responses the complainant provided in cross-examination.[18] As to the proper interpretation of that evidence, the Crown submitted as follows:**

We say that that ground can't be made good because that is not the effect of the answers given by the witness in cross examination. The witness was saying no more than ... 'No, on that first occasion, at the Yarragon house, immediately after the shower, bathroom incident, I was not asleep. I was in fact awake and I changed that particular in my VARE to the extent that I said it. But it did occur as part of the first incident, immediately following the bathroom incident, at Yarragon and, moreover, there was an occasion at Warragul, uncharged, where he did come into the bedroom and I was asleep'.

**64 On this analysis, the complainant's responses entailed no significant departure from the VARE. He was not suggesting that the act of anal penetration described as having occurred in his bedroom, immediately after the bathroom incident, had actually taken place much later, and at a different location. Rather, the only discrepancy between the two accounts was in relation to whether the complainant was asleep at the time the offending conduct commenced, a minor particular which could not provide a basis for impugning the appellant's conviction.

65 The Crown also pointed to the fact that the complainant had, on two earlier occasions during the course of cross-examination, confirmed that the appellant had anally penetrated him in his bedroom, and given a version of events which was substantially consistent with what he had said during the VARE.[19]

66 The responses elicited from the complainant during re-examination, however, appeared to pose a somewhat more difficult obstacle for the Crown to overcome. As we have indicated, the complainant made no mention of the act of anal penetration giving rise to charge 2 when repeatedly given the opportunity to do so in re-examination.[20] Rather, when questioned about what had happened to him in the bedroom on the first occasion that he was assaulted in Yarragon, he stated that he could not remember exactly what happened, but only that the appellant had 'touched' his penis. Obviously, that evidence falls well short of establishing an act of sexual penetration.

67 At the oral hearing, the apparent conflict between the complainant's evidence in cross-examination (which, on the Crown's submission, was to the effect that the alleged act of anal penetration did occur as particularised in the charge), and his evidence in re-examination (which was that he could not, in fact, remember what had happened to him) was put to counsel for the Crown. His submission was as follows:**

The best answer I can give to that is this is the end of his special hearing. I've made the point that it was obviously an emotional and distressful experience for him. I've given your Honours one reference where he said he was distressed and angered and we say that in the context of him, under cross examination, confirming this penetration, this penal anal penetration, that the explanation for his memory failure at that time is no more than the failings of a witness in his position. He's not recanting it.

68 The Crown's attempt to rationalise the complainant's evidence regarding this charge was criticised on behalf of the appellant. It was submitted that, whilst some allowance could fairly be made for the complainant's particular difficulties, the Crown case, as ultimately left to the jury, was so beset by vagueness, internal contradiction, and other associated deficiencies as to make it unsafe, and unsatisfactory to allow the conviction on this charge to stand.

**69 The appellant submitted that even if charge 1 were considered in isolation, there were intrinsic difficulties associated with a jury having accepted the complainant's account to the requisite standard. He pointed to a number of discrete reasons within this ground which he submitted either individually, or in combination, gave rise to significant doubt as to whether charge 1 in fact occurred

70 First, the complainant was unable to give any sort of meaningful description of the accused, despite having claimed to have known him for some time.[21] This was said to be a matter which went directly to the complainant's credit.

71 Secondly, had the events giving rise to charge 1 occurred, they would have been heard by others living in the house. The appellant relied, in particular, on the fact that the complainant had stated in his VARE that he was screaming at the time that the assault in the bathroom took place.[22]

72 Thirdly, the appellant pointed to a discrepancy between the evidence of the complainant, and that of his mother, in relation to what the accused was doing at the complainant's house on the day of the assault. Whereas the complainant stated that the accused was at the house helping his mother with the cleaning, his mother's evidence was that the accused was someone who 'hung out' with her partner, GT, and that he did not do any cleaning that she could recall.

73 Fourthly, the complainant stated that he was still living with his biological father when the accused first had sex with him. However, the evidence of the complainant's mother was that she could not recall any time that the accused stayed at the Yarragon property while the complainant's biological father was there.

74 Fifthly, the complainant could not recall the presence of GT, despite the evidence disclosing that GT was in a relationship with the complainant's mother, had taken out a lease on the property, and had lived at the Yarragon house, along with the accused, for a significant period of time. This was also said to be a matter which went directly to the complainant's reliability and credibility.

75 Sixthly, the complainant stated in his VARE that the man who did this to him stayed in the complainant's room. However, the complainant's mother gave evidence that the complainant shared a room with his brother, that the appellant did not stay at the Yarragon house every night, and that when he did, he would sleep in a bungalow on the property, and self-evidently not in the complainant's room.

76 Lastly, the appellant points to the complainant's evidence that he did not suffer any injuries or bleeding as a result of the alleged offending. The appellant submits it is highly improbable this would have been the case had the offending actually taken place, given the nature of the conduct alleged, and the age of the complainant at the time.

77 The appellant did, however, accept that the criticisms levelled at the complainant's evidence in support of charge 1 were not of the same order as those that could be made in relation to the remaining charges. He recognised that the complainant had not, in any true sense, 'recanted' from his VARE regarding charge 1, and had not relevantly contradicted himself, as he arguably had done in relation to the remaining charges.

78 The appellant submitted that if the convictions on charges 2-5 were quashed, so too should be the conviction on charge 1. All five offences were inextricably linked, and were, in essence, part of a single sequence of events said to have occurred in close temporal proximity to each other. If the complainant was so unreliable in relation to the later offences as to make it unsafe to allow convictions on those charges to stand, his evidence in relation to charge 1 should also be regarded as tainted and, in that sense, unreliable.

79 The Crown, on the other hand, submitted that charge 1 could, rationally, be viewed as a stand-alone count. Counsel for the Crown emphasised that, if charges 2-5 were to fall away, it would not necessarily follow that the complainant must be taken to be a witness lacking in truth or in credit generally. Rather, those charges would fail simply because the complainant, whose evidence had always been that he had been subject, over a prolonged period, to a number of instances of abuse (both charged and uncharged), was unable to marry up, with sufficient particularity and precision, the particulars of those charges to the charged acts which, on the Crown case, had to have occurred in his bedroom. By contrast, the complainant was able to provide a consistent account of the events giving rise to charge 1, both in the VARE and at the special hearing, with sufficient precision and particularity.

80 As regards the specific criticisms levelled at the evidence given in support of charge 1, the Crown submitted that such criticisms related to matters that were explicable, or otherwise of little significance. In any event, they were all matters which had been placed before the jury, and this Court should not set aside a jury verdict arrived at in such circumstances.**

**81 Having accepted the Crown's concession regarding charge 5, we consider that the evidence given in support of charges 3 and 4, and charge 2, was of such a questionable form as to leave us with a real doubt as to whether the appellant's guilt has been properly established in relation to those matters.

82 Having considered the evidence as a whole, and applying the well-established principles laid down in M v The Queen,[23] Libke v The Queen,[24] R v Klamo,[25] and SKA v The Queen,[26] we are of the view that the verdicts on charges 2, 3, 4 and 5 are, relevantly, unsafe and unsatisfactory, and cannot be permitted to stand.

83 We have given careful thought to whether the conviction on charge 1 should be treated differently. In the end, we are unable to accept the Crown's submission that the evidence in support of charge 1 should be viewed as quite separate from the evidence in support of the remaining charges, and that the conviction on charge 1 should be permitted to stand. If the complainant's evidence regarding the events giving rise to charges 2-5 was so inherently unsatisfactory as to render those convictions unsafe, it is difficult to see how charge 1, which, on the complainant's account, is inextricably linked to those other matters, and depends entirely upon his credibility, can be 'immunised' in that way.

84 In these circumstances, we would quash all five convictions on this indictment, and in lieu thereof enter judgment and verdicts of acquittal.

85 That leaves us with the task of fixing a new non-parole period in relation to the indictment to which the appellant pleaded guilty. At present, he is serving a sentence of 2 years and 6 months on that indictment. Having now read the sentencing judge's sentencing remarks, we consider it appropriate to fix a new non-parole period of 18 months on that indictment.

[1] DPP v O'Reilly (Unreported, County Court of Victoria, Mullaly J, 22 November 2013) [2].

[10] See above [30].

[11] See above [33].

[13] See above [34].

[14] See above [34].

[16] See above [35]-[36].

[17] See above [27]-[28], [30].

[18] See above [27]-[28].

[19] See above [25]-[26].

[20] See above [30].

[21] In his VARE, the complainant had stated that the accused was his best friend for a long time.

[22] See above [19].

Offenders Registration Act 2004

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)