Criminal Law - Appeal and new trial - Verdict unreasonable or insupportable having regard to the evidence - Other matters - Appellant's argument that jury should have entertained doubt about complainant's recollection of childhood events contradicted by expert evidence at trial - Evidence sufficient to eliminate any reasonable doubt of appellant's guilt - Appeal against conviction wholly unarguable and leave to appeal refused.

Dansie v The Queen (2002) 27 CLR 65, referred to.

AWK v Tasmania [2024] TASCCA 5, applied.

Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances not amounting to miscarriage - Misdirection or non-direction - Appellant contended that forensic disadvantage due to delay in prosecution required a specific direction by trial judge - Trial judge had no obligation under s 165B of Evidence Act 2001 to make direction as to forensic disadvantage because that was not sought by appellant at trial - Appeal against conviction wholly unarguable and leave to appeal refused.

PT v The Queen [2011] VSCA 43, referred to.

Evidence Act 2001 (Tas), s 165B.

Criminal Law - Appeal and new trial - Appeal against sentence - Sentence manifestly excessive or inadequate - Appellant sentenced to 9 years imprisonment with 4 years and 6 months non-parole for one count of persistent sexual abuse of a child - Severe sentence justified by factors including egregious breach of trust, long-lasting harm to complainant, lack of remorse, and no guilty plea - Appeal against sentence dismissed.

Judgment Number: [2024] TASCCA 12

1. The appellant has appealed against his conviction on one count of persistent sexual abuse of a child contrary to s 125A of the Criminal Code. He has also appealed against the sentence imposed for that crime.
2. The acts constituting the crime were committed between 1980 and 1988 when the complainant was aged approximately between 3 and 11, and the appellant was aged between 43 and 52 years. The complainant is the daughter of the appellant.
3. The jury was satisfied beyond reasonable doubt that the appellant committed an unlawful sexual act on the complainant on at least three occasions out of six specific alleged occasions.
4. In her comments on passing sentence the trial judge said of the complainant's evidence that she was "satisfied beyond reasonable doubt of the truthfulness and the reliability of her evidence with respect of all six occasions and that the six occasions occurred as she described them in her evidence."
5. The six occasions referred to were set out in a document provided to the jury at the trial called "Particulars of unlawful sexual acts". The document reads as follows:

Indecent Assault - contrary to section 127 of the Criminal Code

At Bicheno in Tasmania, [the appellant] unlawfully and indecently assaulted [the complainant] by rubbing a towel against her vagina, when she was aged around five, or six years old.

Indecent Assault - contrary to section 127 of the Criminal Code

At Bicheno in Tasmania, [the appellant] unlawfully and indecently assaulted [the complainant] by rubbing her vagina against his penis, when she was aged around five, six or seven years old.

Indecent Assault - contrary to section 127 of the Criminal Code

At a location in the Central Highlands in Tasmania, [the appellant] unlawfully and indecently assaulted [the complainant] by kissing her with an open mouth and licking her, when she was aged around three or fours years old.

Penetrative sexual abuse of a child - contrary to section 124 of the Criminal Code

At a location in the Central Highlands in Tasmania, [the appellant] penetrated [the complainant]'s mouth with his penis, when she was aged around three or four years old.

Indecent Assault - contrary to section 127 of the Criminal Code

At Woodbridge in Tasmania, [the appellant] unlawfully and indecently assaulted [the complainant] by rubbing her vagina with his finger or hand, when she was aged around five, six or seven years old.

Indecent Assault - contrary to section 127 of the Criminal Code

At Woodbridge in Tasmania, [the appellant] unlawfully and indecently assaulted [the complainant] by putting her hand on his penis and moving it up and down, when she was aged around four years old.

Indecent Assault - contrary to section 127 of the Criminal Code

At Kingston or Blackmans Bay in Tasmania, [the appellant] unlawfully and indecently assaulted [the complainant] by putting his hand inside her gym shorts and rubbing her vagina, when she was six or seven years old in grade four or five."

1. The trial judge described the occasions as follows in her comments on passing sentence:

"Occasion one occurred when the family were on holiday at Bicheno Holiday Village. The complainant was 5 or 6 years of age. She was kayaking in a shallow pond and fell into the water. Her mother was looking after her and told her to go back to the cabin. Her father was there and he undressed her and put in the shower. Afterwards, he dried her off with a towel. He rolled up the edge of the towel and rubbed it on her vagina. He knelt down in front of her while she was standing and put the rolled up towel on her vagina and moved it around. The incident ended when someone, most likely the complainant's mother, returned to the cabin and the defendant moved away from the complainant.

Occasion two occurred on a family holiday in Bicheno, and may have been the same holiday referred to in occasion one. The complainant was aged approximately 5 or 6, but she may have been 7. She was allowed to stay up late and watch a movie which was a big treat as the family did not have a television at home. Her mother and younger sister had gone to bed. She recalls that she was sitting next to her father on the couch. There was a sex scene or kissing during the movie and he put his hand over her eyes so she could not see it. He pulled her onto his lap so she was facing him, with her legs around his waist, and he held her waist and moved her back and forth on his lap.

She said it hurt while he moved her back and forth. Her vagina and pubic bone were in contact with his penis, over their clothing. She was wearing pyjamas. She felt something hard and remembers thinking it was like a rock or a bicycle seat. She described him doing that for 'a while' and then it ended, and he stopped and pushed her off onto the couch.

Occasion three occurred on a family holiday to the Central Highlands. The complainant was aged 3 or 4, and it is likely that this was the first of the specific occasions in time.

The arrangements were that the family was sleeping in an open room, divided by a curtain. Her mother, father, and baby sister were sleeping on one side of the curtain, and her bed was on the other side. She was displeased about sleeping out there by herself. She cried out in the night, and the defendant went to her, which her mother described as unusual.

The complainant remembers waking up and her father being there. He told her that she was really good because she was brave for sleeping out there and he was going to teach her some 'big girl things' and how to kiss. He began to kiss and lick her face and she could not breathe. Then he said to her, 'We're going to do something different and it's going to be good and it's nothing to worry about'. He put his penis into her mouth while she was lying in bed on her side. The complainant struggled to breathe. The defendant said: 'Just try it', 'It will be okay', 'Just try to lick it like an ice-cream'.

The complainant recalled the defendant removing his penis and saying she could get up after that and have a little packet of sugar as a treat.

The complainant gave evidence of non-specific occasions that happened in the family home when the defendant would come into her bedroom and wake her and put his hand down between her legs and touch her vagina, and put her own hand there and get her to do it, as well.

Occasion four was a specific occasion when this happened. The defendant got her to lie on her stomach and he put his hand under her nightie and underpants. He would rub around her vagina and, in her words, 'Put his finger at the top and sort of move it around'. He said to her, 'You need to learn how to do this,' and that girls need to learn that, and showed her ways of touching her genitalia. He told her she was 'good', and that she could not tell anyone.

Occasion five occurred in the bathroom at the complainant's family home at Woodbridge. She recalls being in the bathroom with the defendant who had had a shower and was naked. He took her hand and put it on his penis and got her to move her hand up and down. The act of abuse ended abruptly because someone came down the hallway and 'he threw her hand away'. The complainant was approximately 4 years of age. She was sure she was only very young because she was at eye-level with the top of his thigh and penis.

Occasion six relates to an incident in the car when the defendant drove the complainant and her school friend to Little Athletics at Kingston or Blackmans Bay. Her friend got out of the car and went to join the other children. The complainant remembers her father was very angry about something that had happened and she was not allowed to join in and had to stay in the car. The complainant desperately wanted to be involved in Little Athletics and to race, and she was ready, wearing her gym shorts. She was sitting in the front seat of the car. The defendant reached over and put his hands into her gym shorts and told her to look out the window. He rubbed her on the vagina under her clothing. The abuse ended when the complainant's friend returned to the car. She thought she was aged 6 or 7, but she also said she was in grade four or five, which would mean she would have been aged 9-11."

1. One ground of appeal pursued by the appellant at the hearing of the appeal was that the jury's verdict was unreasonable and incapable of being supported by the evidence. When such a ground is raised it is incumbent on the appeal court to "determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of offence"; see Dansie v The Queen [2022] HCA 25, 274 CLR 651 at [7]. That requires an appeal court to make its own independent assessment of the evidence; see Dansie at [8].
2. Counsel for the appellant submitted that the jury should have had concerns about the capacity of the complainant to remember the events in question from her childhood.
3. The evidence of the complainant about the "occasions" was given clearly and appeared to be given confidently, on a reading of the transcript. It was unshaken by cross-examination. Further and importantly, the complainant's psychologist gave uncontradicted expert evidence (CB 120) "with traumatic memory, just based on the way we neurologically process memory, traumatic memories do tend to remain more vivid in recollection, which is why they continue to be distressing for people after the event." As counsel for the respondent submitted, the jury was entitled to conclude that even though the appellant was very young when the incidents occurred, she had a reliable memory about them.
4. It should also be noted that simplistic assertions that victims of sexual assault lack the capacity to remember the relevant events because they occurred in their childhood are fraught.
5. As Wood J said in AWK v Tasmania [2024] TASCCA 5 at [278]-[280]:

"278 At times, there was an invitation to the jury to speculate about matters on which there is a body of knowledge and research. I have already mentioned the matter of why the complainant did not make a contemporaneous disclosure. Additionally, the contentions concerned notions about what the complainant would remember if she had been subject to the incident of abuse alleged. There were contentions propounded on behalf of the appellant that if her account was true, then realistically the jury could expect that the complainant would not forget or make a mistake about certain details, often matters of context peripheral to the sexual conduct. These same contentions were then pressed before this Court on appeal. This approach can be seen in a number of the submissions made, such as in relation to occasion one, two and seven and how the complainant did not have a memory of putting on her shoes before going to the shed where the alleged abuse occurred, her failure to mention the lock on the shed, and her lack of evidence about sensory perceptions such as pain and smell.

1. The nature and operation of human memory is an area of extensive scientific psychological research: Goodman-Delahunty, J, Nolan, M A, & Van Gijn-Grosvenor, E L (2017). Empirical guidance on the effects of child sexual abuse on memory and complainants' evidence. Royal Commission into Institutional Responses to Child Sexual Abuse. Furthermore, scientific findings do not align, at least in some key respects, with 'common sense' notions held within the community about memory. Memory is not like a video tape which accurately records all details of a particular event in sequence and which can then be played back years later.
2. While defence counsel may be given considerable latitude by a trial judge in a closing address, on appeal, counsel can expect the Court to be cautious about such contentions and to resist invitations to speculate and to fill gaps in the evidence with counsel's version of common sense or intuition. Counsel should expect the Court to be conscious that memory is a field of expertise and specialised knowledge, to be alert to the risk or reality of counsel propounding erroneous beliefs about memory, and to be aware that there was no expert opinion before the jury to support defence contentions made about memory. This observation, of course, applies with equal force to the State and contentions it may make if it is suggested that matters of specialist knowledge are matters upon which the jury or the Court on appeal may speculate."
3. In that same case at [318]-[319] Martin AJ said:

"318 This appeal, and many of the submissions advanced by the appellant, reflect and seek to perpetuate outdated concepts and myths surrounding the conduct to be 'expected' of child complainants in sexual assault cases. Similarly, they seek to perpetuate such concepts and myths about the evidence of child complainants, often given many years after the events. The submissions also overlook the risk-taking behaviour of sexual predators commonly the subject of evidence in the criminal courts.

1. I agree with the observations of Wood J concerning submissions amounting to speculation as to memories and behaviours "expected" of child complainants. As her Honour has noted, there exists extensive research in this area. In addition to research, there is a wealth of experience in the criminal courts demonstrating the fallacy underlying the outdated concepts to which I have referred."
2. Counsel for the appellant submitted that the complainant may have misinterpreted events as being sexual when they were innocent. There was nothing innocent about the way the appellant acted towards the complainant about the matters in relation to which she gave evidence concerning the six occasions. It is suggested by counsel for the appellant that rubbing a towel against the complainant's vagina may have been an innocent action. However, the evidence of the appellant was that the towel was put into her vagina and that a sexual related comment was made by the appellant as this was occurring.
3. Counsel for the appellant referred to the evidence of Ms C (the mother of the complainant) regarding occasion 3. This is the instance where the complainant referred to the appellant having forced her to suck his penis. Counsel complains that Ms C would not have a good memory of this occasion because around this time she had shortly beforehand given birth to a child and would have been focused on that child.
4. Ms C gave evidence about a photograph taken at the relevant time when the family was holidaying in the Central Highlands. She gave no other evidence-in-chief related to occasion three. Under cross-examination, Ms C referred to a curtain closing off a cooking area at the shack where the incident occurred. It was not put to her that her evidence about that was incorrect. Nothing about Ms C's evidence detracts from the firm and specific evidence of the complainant about what occurred. There is no basis for the allegation that the division of the sleeping areas between the complainant in the kitchen and others, with a curtain dividing, was improbable. If anything the fact of the division made it easier for the appellant to perform sexual acts on the complainant without being observed by the rest of the family. It is entirely speculative and unsupported by evidence that the jury should have assumed that Ms C was affected by guilt in initially ignoring the complainant's allegations and was seeking to make that matter up to her by giving evidence in support of her case. No such suggestion was ever made to Ms C in her cross-examination that that was the position.
5. Counsel for the appellant also referred to the significant forensic disadvantage suffered by her client giving the relevant events occurred a long time ago. The trial judge did give a direction highlighting the passage of time since the events in question and the possible impact of the passage of time on the reliability of the evidence, however it was submitted that the trial judge was required to direct the jury specifically as to forensic disadvantage.
6. This submission is misconceived.
7. Section 165B of the Evidence Act 2000 provides:

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(a) delay includes delay between the alleged offence and its being reported; and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay."

1. There is no obligation on a trial judge to give a direction to the jury under this section if it is not requested by the appellant at his trial. No such application was made by the appellant at his trial. There is no ground of appeal which alleges trial counsel was remiss in not seeking such a direction. Indeed, for a direction to be given, it is necessary for the trial judge to be satisfied that an accused has experienced a significant forensic disadvantage. No submissions were advanced on the appellant's behalf at trial to suggest the existence of such a forensic disadvantage. Moreover, there was nothing on the face of the evidence given at the trial to suggest a forensic disadvantage, particularly in light of the fact the appellant's defence was one of a complete denial. This was not a situation where, for example, the appellant was suggesting relevant witnesses may have become unavailable as a consequence of the delay or evidence may have been lost given the passage of time. There was nothing raised in the evidence on the trial that ought to have prompted the trial judge to enquire with counsel as to whether such a direction was sought pursuant to s 165B of the Evidence Act. Even on appeal, the submission as to alleged forensic disadvantage was limited to a broad assertion that the passage of time simpliciter created a forensic disadvantage, without any attempt to identify the specific forensic disadvantage that was said to arise. In PT v The Queen [2011] VSCA 43 it was held that "the clear focus of the provision is on identification of the particular consequences of the delay which give rise to significant disadvantage".
2. In short, there is no sensible basis upon which it can be submitted that the trial judge erred by not giving a direction pursuant to s 165B, given the appellant at his trial did not seek such a direction, and did not seek to identify the purported forensic disadvantage. Moreover, it is difficult to see how a direction as to any alleged forensic disadvantage could have had any real impact on the jury's assessment of the appellant's credibility given his outright denial of the offending.
3. Having reviewed the record of the trial including the transcript of the evidence and the judge's summoning, the Court is satisfied that the evidence before the jury was significant in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. Leave to appeal against conviction should be refused.

Mischaracterisation of the offence in occasion 3?

1. This appeal ground states that at the time of the offending, the particular sexual act referred to in the second paragraph of the occasion did not exist. It is submitted that the relevant offence that should have been referred to in the second paragraph was one of sexual assault rather than one under s 124 of the Code regarding penetrative sexual abuse of a child.
2. However as counsel for the respondent pointed out, the amendment to s 124, enacted in 1997, was expressly stated to be retroactive. No error is disclosed in the way the second particular was described because the particulars accurately describe what had occurred and the trial judge was entitled to treat that offence as one under s 124. Further, as counsel for the respondent submitted, the seriousness of the conduct does not depend on the statutory language in the particulars describing the offence.

1. The sentence imposed by the trial judge was submitted by counsel for the appellant to be manifestly excessive. Insofar as this ground relies on what was said to be a mischaracterisation of the second particular on occasion three, that submission is rejected for the reasons just expressed in relation to that ground. The sentencing judge was entitled to sentence on the basis that the appellant placed his penis in the mouth of his daughter who was three or four years old at the time.
2. In order for the sentence imposed to be considered manifestly excessive it must be shown that the sentencing discretion miscarried in that the sentence was unreasonable or plainly unjust in the circumstances: see House v King (1936) 55 CLR 499 at 505.
3. Counsel for the appellant submitted that when the personal circumstances of her client are considered, as well as other surrounding considerations, the sentence can be seen to be manifestly excessive.
4. Factors relevant to sentencing in cases involving persistent sexual abuse of a child were discussed by Pearce J in DPP v Harington [2017] TASCCA 4, 27 Tas R 128 at [68]- [69]. That judgment in this regard was quoted with approval by the Court in SRR v Tasmania [2023] TASCCA 6 at [11].
5. In Harington the four major factors relevant to sentencing in cases of this kind were said to be:
   • The relative ages of the offender and the complainant;
   • Whether the offender was in a position of trust or authority with regard to the complainant which facilitated the commission of the offence;
   • The situation of the complainant and the degree to which the compliant was taken advantage of; and
   • Evidence about whether the complainant has suffered or has likely suffered as a consequence of the offending.
6. Each of the above factors justifies a severe sentence in this matter. The appellant was in middle age and the complainant was a young child when the offending occurred. The appellant, as the father of the complainant, was a person in a position of trust of the closest kind. The complainant was taken advantage of by the behaviour of the appellant in a stark way. The complainant suffers from long lasting psychological problems arising from the criminal conduct of the appellant. In addition, the appellant showed no remorse, was not a youthful offender, and is not entitled to the benefits which would have flowed from a guilty plea.
7. The appellant contends that the appellant's age and ill-health were particularly pertinent to sentence and the failure of the trial judge to give sufficient weight to those factors has resulted in a manifestly excessive sentence. The trial judge clearly took such factors into account. She said:

"In fixing his sentence, I have also moderated the length of it to some extent to take account of his age and health issues, and the prospect that his final years may be spent in prison. The sentence must reflect his personal circumstances, however, sentencing goals of general deterrence, protection of children, and vindication of the victim are just as important today as they were when these crimes were committed. It is important that other would-be offenders see that the passing of decades does not mean a heavy sentence is avoided; there should not be a tangible incentive to silence child victims."

1. Such comments reveal the trial judge was alive to the need for the sentence to reflect the appellant's age and ill-health, but as one of a myriad of factors that needed to be accommodated within the sentence. His age and ill-health had to be balanced against the objective seriousness of the offending, the strong need for general deterrence and the appellant's high moral culpability given the appalling breach of trust. The approach taken by the trial judge was consistent with the approach enunciated in Smith v The Queen [1987] SASC 9802; (1987) 44 SASR 587 at 589. The imposition of a minimum non-parole period was consistent with the trial judge acknowledging the appellant's age and ill-health within the sentence.
2. Given the seriousness of the offending, a high range penalty was appropriate. General deterrence and denunciation for the offending conduct and vindication of the appellant was required in the circumstances of this case. A sentence of nine years' imprisonment with a non-parole of period of four years and six months was not unjust or unreasonable.

1. Leave to appeal against conviction is refused.
2. The appeal against sentence is dismissed.
3. The refusal of leave to appeal in this case should be seen as an expression of the Court's view that the proposed appeal against conviction was wholly unarguable. Appeals so brought, unnecessarily tax judicial resources, as may be seen from the long and detailed reasons for judgment required of Wood J in AWK (above). Care must be taken by counsel, as officers of the Court, to identify arguable grounds of appeal.