R v B I C [2009] VSCA 155

1 The applicant was, on the 31 July 2008, found guilty by the jury empanelled upon his trial in the County Court at Melbourne on two counts of committing an indecent act with a child, (to whom we will refer as L) under 16 years (counts 1 and 2). He was acquitted on a further count of the sexual penetration of the child (count 3).

2 He now seeks leave to appeal against these convictions on the grounds that -

1. The convictions were unsafe and unsatisfactory.

2. The learned trial judge erred in

(a) failing to give an explanation as to the importance of telling the truth and not to tell lies to L contrary to section 23(1D)(a) of the Evidence Act 1958;

(b) failing to give an explanation to L that she may be asked questions that make suggestions that are true or untrue and that she should agree with the statements that are true and should not feel pressured to agree with statements that she believes are untrue contrary to section 23(1D)(c) of the Evidence Act 1958;

...

(d) failing to inquire as to the understanding of L

(i) as to the nature of giving evidence as opposed to answering questions pursuant to section 23 (1A) of the Evidence Act 1958; and

(ii) that the importance of telling the truth in court was much greater than on other occasions;

(iii) as to the serious and adverse consequences which might follow for the applicant if she was to fail to tell the truth.

1. The learned trial judge erred in failing to direct that that it would be dangerous to convict the accused on the unsupported evidence of the complainant, unless after thorough scrutiny on that evidence and paying heed to the warning which the judge was giving, they were convinced of its truth and accuracy.
2. The learned trial judge erred in failing to direct on prior inconsistent statements.
3. The learned trial judge erred in his directions as to complaint.
4. The learned trial judge erred in failing to give a propensity warning.

3 L, was born on 23 April 1999 and was aged seven years at the relevant time. In 2005, her mother, T, entered into a relationship with the applicant, who is the father of her two subsequently born children. The Crown contended that the applicant engaged in acts of sexual abuse of L, when the family was living in a house in Reservoir during 2006 and whilst her mother was absent, shopping or at the local gym.

4 On one such occasion, they were in the sitting room of the family home, when the applicant obtained a flannel from the bathroom, pulled her pants down and rubbed her 'rude spot' with it. He told her not to tell her mother and that she should 'shower good'.

5 She said that, on another occasion, when her mother was absent and they were again in the sitting room, the applicant took his penis out of his shorts and put it on top of her exposed 'rude spot'. He told her that it was called a penis and that her 'rude spot' was called a vagina.

Count 3 (The applicant was acquitted on this count)

6 The complainant stated that they were in the sitting room on another occasion, when her mother had gone to the gym. The applicant told her to lie down. He took her pants and undies off and touched the inside of her vagina with his fingers. He then smelled his fingers and told her she should shower better.

7 The prosecution case depended essentially upon evidence of L, which was derived from two interviews conducted in accordance with VATE procedures.

In the first, which was recorded 13 September 2006, L stated -

That she [was] seven years old, her birthday being 23 April 1999.

A lie is something that [was] not true.

That she was only going to tell the truth.

That her dad touched her rude part with a flannel and put his rude part on her rude part and that it felt a bit yucky.

That he said that his rude part [was] called a penis. He told her to make her legs go apart and he was touching the middle of her rude part. He used the flannel to wash her rude part. He was doing it hard. That's all he did to her.

It happened at their house at Reservoir. She had known her dad ... since June 2005. That he [was] actually her stepdad.

That he touched her rude spot when they were in the sitting room. She was sitting on a black couch. Her brother, aged 7 months, was also at home. Her mum had gone to get her baby brother some 'Huggies' (nappies). It was a Sunday afternoon.

Her brother was on the carpet in the sitting room. Her stepdad was watching TV and then started to touch her rude part. She was wearing a t-shirt and pants.

The news ended and he got the flannel from the bathroom. She pointed to her groin area as being her 'rude part'.

He took her pants off and put them on the table. He touched her rude part with the flannel. He wiped on her rude part for about a minute and a half. It was a bit hard.

He stopped because she was moving backwards. She wanted to get away but he was holding her legs really hard. He held them spread apart. Then he put her pants back on and watched some rugby. He told her not to tell her Mum, but she did anyway.

While he was touching her, her baby brother was crying but he didn't care. She thought he wiped her rude spot with a flannel on one occasion. The other name for her rude spot is her vagina.

The second time he touched her, her dad put his rude part on her rude part.

It was on the same day. They were in the sitting room. It was straight after he touched her with the flannel.

His rude part was called a penis and it looked disgusting. She saw him zipping down his shorts and she closed her eyes. She was lying down on the couch. His penis was hanging down. He was wearing an orange coloured shirt and a blue and black jumper.

He put his penis on top of her rude part, in between her legs. He told her it was called a penis. He kneeled in front of her. It touched her skin. She tried to move away but he was holding her legs really hard.

He put his penis on her rude part once.

In the second, which it is to be noted, was recorded over a year later, on 19 November 2007, she said:

That she was 8 years of age.

That she understood that it was important to tell the truth and what really happened.

That her stepdad wiped her vagina with a flannel. He put his penis on her vagina. And he touched her vagina with his fingers.

She was in the sitting room on a mattress on the carpet in the house in Reservoir. He took her pants off and told her to open her legs. He had a flannel. He took her undies off and started to wipe her vagina. He did it for 10 or 20 minutes.

Her little brother [D] was not far away. He was five or seven months old. Her mum went out to get nappies and it took a long time. It was a Sunday afternoon.

He told her to get the flannel. Then he told her to lie down and took off her pants and her undies and started to wipe her vagina.

The time when he put his penis on her vagina was on a chair in the sitting room. He told her to lie down again and told her to take her pants and undies off. Then he untied his shorts and showed her his penis. He told her it was called a penis and put it on her vagina. He moved it a little on her vagina. He told her that her rude part was called a vagina. Then he closed his pants again and tied it. She put her undies and pants back on.

The chair had a sheet on top of it. It was like a big couch.

She could not remember what his penis looked like. It looked sort of like a tube, a cylinder. His penis was facing her vagina. He was in front of her. Her legs were apart like last time.

He held his penis with his hand and moved it on her skin.

She thought it was another Sunday as her mum went somewhere. She thought it was around 3 weeks after the day with the flannel. ... [D] was on the mattress in the room.

Another time he touched her vagina with his fingers. She was on the mattress in the sitting room, as he told her to lie down. He took her pants off and her undies. He started touching the inside of her vagina and then smelled his fingers. Then he touched her vagina again.

She could not remember how many fingers he used. He was touching it a lot, hard. He smelled his fingers and then he said that she should shower better. He touched her vagina more, she thought for about 10 or 20 minutes.

She thought her Mum went to the gym and bought some more nappies. It was on a weekend. It made her feel yucky.

When he put his penis on her vagina he was in front of her, kneeling.

8 The statements made in these recordings were adopted at a special hearing conducted pursuant to s 41G of the Evidence Act 1958, in the course of which L stated:

That she had come to court ... to give evidence of what her step dad did to her. That she understood that she must tell the truth, and that she knew the difference between telling the truth and telling a lie.

She understood that she would get in trouble if she didn't tell the truth. That if she didn't know the answer to a question she would say 'I don't know'. That if she didn't understand a question she would say so. And that if she didn't remember, she would say that she didn't remember.

The complainant agreed she had watched both VATE tapes, that there was nothing she wanted to change and that what she had said was true and correct.

9 In Cross-Examination at that hearing, L accepted -

That she had never really liked the applicant because he was not her real father.

She would probably tell her mother lies about him because she didn't like him.

She did not tell the police things that are not true.

The first thing that happened was that he wiped her vagina with a flannel. The second ... was that he put his penis on her vagina. The third ... was that he touched it with his fingers. He touched her vagina just three times.

She forgot to tell the police about him putting his fingers in her vagina in the first VATE. She first mentioned about the fingers in the second because her memory got better.

The flannel incident and the touching with his penis happened three weeks apart. She was not sure why she said they happened four seconds apart in the first VATE. When she was touched with the flannel she was on a mattress, not a couch.

All the incidents happened on a Sunday.

She got the flannel from the bathroom. She was not sure who took her clothes off. She could not remember.

She understood that in the first VATE she said he touched her with the flannel for a minute and a half, and in the second VATE she said it was ten to twenty minutes. The truth is in the second VATE. Her memory got better. She denied that her mother told her about it. She is unsure as to whether her mother dislikes the applicant.

When he put his penis on her vagina her pants were down. She could not remember who pulled them up after it had finished.

She told a lady called Rachel about what her stepdad did to her. She told her mother after she told Rachel. She likes being with her mum and they are good friends. She didn't tell her mother at first because the applicant said not to tell her.

She could not recall when he said not to tell her.

10 Rachele Jane May said that, on 6 September 2006, she was employed by the Department of Human Services as an after-hours child protection emergency service worker. At 9.15pm on that day, she spoke to L at the Reservoir Police Station. L asked her whether it was her job to keep children safe. She replied that it was. L said 'My father checks me here' and indicated her groin area. She was quite distressed. Ms May asked for more details and L said 'He tells me to lie down so that he can check me'. She then said 'He asks me to lie down and take my pants off so that he can check it.' She said 'He asks me to spread my legs so that he can check it'. She said that he called 'it' a vagina.

11 She said that 'He wants to check it to see if it's clean'. She said 'He puts his fingers inside to check that it's clean and he uses a flannel'. She said 'He shows me his 'p' (indicating her groin area) and said that he told her not to tell her mum.

12 She said that the conduct took place when her mother left the house to buy things for the baby. She said that the last time it occurred was on the previous Sunday. She said that the first time that the applicant touched her in this area of her body was in April, around her birthday. When asked how many times he had engaged in this behaviour, she responded - six, nearly seven, but, on the seventh occasion, her mother had come home and she had had to put her pants back on and he had zipped up his pants.

13 Evidence was given by a number of witnesses at the trial to some of which brief reference should also be made

14 T, the mother of the complainant, said that, in 2006, she lived with the applicant in Reservoir. He was a bus driver and she cared for the complainant and younger child D, born 25 January 2006. Her third child, W, was born on 7 February 2007. Her relationship with the applicant broke down in early September 2006 and she left. Whilst they were living together, from time to time she would go out and leave the children in his care. She used to go to the shops to buy nappies or go to the gym for an hour. On each occasion that she left the children with the applicant and then returned to the house, she found that the front door was locked. She had a key and had to unlock it. When she asked him why he locked the door he did not respond. In cross-examination, she said that her relationship with the applicant broke down because there had been arguments. L did not like him because of what he did to her, not because he was not her father. She had a good relationship with her daughter. The complainant never told her of any sexual abuse until after she spoke to Ms May.

15 Dr Maryanne Lobo is a qualified medical practitioner and paediatrician. She was employed at the Gatehouse Centre at the Royal Children's Hospital where she examined children with respect to suspected abuse. She examined the complainant in the presence of her mother, on 8 September 2006, and observed no evidence of injury. However, this did not imply that no abuse had occurred.

16 The applicant gave evidence to the following effect:

In 2006, he was living with T, their son D and L in Reservoir. He had no prior convictions and was then aged 43. He denied using a flannel on the little girl's vagina, or placing his penis on it. He denied placing his fingers in her vagina and then smelling them. In September 2006, T and he had been having quite a few arguments, some of which had taken place in the L's presence. She did not like him as she wanted to be with her father. On occasions, T would leave him to care for the two children. Contrary to T's evidence the door to their unit was always open. There was, however, one day on which when she returned and tried to open it with her key she was unable to do so. She thought that he had locked it, but that was not the case. He denied ever washing the complainant with a flannel. T went out to get nappies on one occasion only and was absent for about 10 minutes. She did not leave him with the children at any other time. In cross-examination, he said that the house in Reservoir had been divided into 4 separate dwellings. They lived at the rear, and their section was accessed by a roller door. The only way to enter was through the back door to which he did not have a key. T went to the gym only once while they lived there. He was out working and she took D to childcare during that time.

17 In support of this ground, counsel for the applicant contended that the judge conducting the special hearing at which L's evidence was given failed to comply with the provisions of s 23(1D) of the Evidence Act, in that no adequate explanation was given or emphasis placed upon the importance of giving truthful evidence to the

court.[2] He drew attention to what was said by Winneke P in R v NRC[3] and, in particular, to the significant forensic difficulties and potential for unfairness that can be encountered when attempting to test the version of events given by a child of tender years. Whilst the procedure has been designed to facilitate the giving of evidence by children or persons suffering from cognitive impairment, care must be taken to ensure that the adoption of this process does not place an additional forensic disadvantage. It was therefore of great importance for the judge to stress upon the child the significance of giving truthful evidence, counsel argued.

18 Obviously, a trial judge must be astute to the possibility that the adoption of a procedure intended to advance the interests of justice is not itself a source of potential injustice. What is important at this level is whether the child can be seen to understand what is required. The manner in which the matter is approached will, of course, be essentially for the judge to determine and will be dependent upon a number of factors, including the age and level of social and intellectual development of the child concerned.

19 L was 8 years old at the time that the evidence was to be given and in Grade 3 at school. There has been no suggestion that she was not capable of understanding and responding to questions asked of her and that were expressed in terms appropriate to her age group. There is certainly nothing in the material before this Court that would indicate otherwise. With respect to her understanding of the importance of giving truthful evidence, at the special hearing, the judge who informed counsel that she had read the transcripts prepared from the VATE tapes, asked the prosecutor:

[HER HONOUR]: Are we anticipating any issue in relation to competency or not?

[PROSECUTOR]: I wouldn't have thought so, Your Honour, she seems to be a very bright little girl.[4]

This assessment was not queried by the applicant's counsel

20 After the provision of some introductory information to L, her Honour then asked:

[HER HONOUR]: You have come to court today, do you know why you've come to court today, [L]?

[WITNESS]: Yes.

[HER HONOUR]: Why do you think you've come to court?

[WITNESS]: To give evidence of what my step dad did to me.

[HER HONOUR]: I want to talk to you about something that's important and that's the rules that we have in court. I suppose you know about rules because I think that if you're - you're eight now aren't you?

[WITNESS]: Yes.

[HER HONOUR]: You must go to school?

[WITNESS]: Yes.

[HER HONOUR]: What grade are you in at school?

[WITNESS]: Grade 3.

[HER HONOUR]: Did you finish Grade 3 this year?

[WITNESS]: Yes.

[HER HONOUR]: I bet there are some rules at school, are there?

[WITNESS]: Yes.

[HER HONOUR]: You have to obey the rules?

[WITNESS]: Yes.

[HER HONOUR]: We have some rules at court as well and the most important rule is that you tell the truth?

[WITNESS]: M'mm.

[HER HONOUR]: Do you know the difference between saying something that is true and telling a lie?

[WITNESS]: Yes.

[HER HONOUR]: What do you think the difference is, if I said to you, [L] you're wearing a pink top with elephants all over it, would that be the truth?

[WITNESS]: No.

[HER HONOUR]: Why?

[WITNESS]: Because I'm wearing a blue top.

[HER HONOUR]: You are wearing a very pretty blue top. If you told me that it was a pink top with elephants you'd be telling a what?

[WITNESS]:A lie.

[HER HONOUR]: When you tell us what you're going to tell us today, do you think it's important that you tell the truth?

[WITNESS]: Yes.

[HER HONOUR]: What do you think might happen if you didn't tell the truth?

[WITNESS]: I would get in trouble.

[HER HONOUR]: You understand that it's important that if you don't know the answer to the question, if you just say, I don't know. What will you say if you don't know the answer?

[WITNESS]: I don't know.

[HER HONOUR]: Sometimes lawyers ask questions that are hard to understand, sometimes I can't understand them. If they ask you a question that you can't understand you just say, I can't understand. Then the lawyers will have to ask you a different question, I'll ask them to ask it a different way?

[WITNESS] Yes.

[HER HONOUR]: You know sometimes that someone asks you a question and you think, I don't know what they mean, but then when they ask it in a different way then you can understand?

[WITNESS]: Yes.

[HER HONOUR]: If that happens you just say, I don't know, and don't feel embarrassed about saying I don't know because I've said to you, sometimes the lawyers ask questions and I don't know what they mean, all right?

[WITNESS]: Yes.

[HER HONOUR]: If you don't remember just say, I don't remember, that's fine?

[WITNESS]: Yes.

[HER HONOUR]: It is important that you don't say things that you sort of remember or anything like that, only say things that are true and if you don't remember you just say, I don't remember. What will you say if you don't remember?

[WITNESS] I don't remember.

[HER HONOUR]: If you don't understand what will you say?

[WITNESS] I don't understand.

[HER HONOUR]: If you don't know what will you say?

[WITNESS] I don't know.[5]

Very good. Very well, in relation to this matter I am satisfied that the child [L] is competent to give sworn evidence as she is capable of understanding that in giving evidence she's under an obligation to give truthful evidence.[6]

22 The experienced member of counsel appearing for the applicant at that hearing expressed no concern about either of those conclusions and none was indicated by the prosecutor, the equally experienced applicant's counsel at the trial or the judge who then presided; all of whom were presented with precisely the same material and had an opportunity to assess the situation. The reasonable possibility that both of these judges and all of the counsel failed to direct appropriate attention to whether the young girl appreciated the importance of telling the truth can be discounted.

23 In a situation where, additionally, there is nothing of substance that could justify concern in the minds of the members of this court, on this aspect, the argument fails.

24 A further contention advanced under this ground rested upon s 23(1D)(c). Counsel submitted that there was a failure to explain to the child that she should not feel pressured to agree with statements that she believed were untrue. He argued that the pressure to which the provision referred did not have to relate to questioning in the Court but encompassed any external or prior influences. The judge, it was said, did not make this clear. In our view, the submission is misconceived. The provision in its terms is clearly directed to a potential problem that the possibility could arise in the course of questioning in an adversarial court process and, specifically, that the child might be apprehensive about disagreeing with an adult.[7] External pressures are addressed through the explanations concerning the giving of truthful evidence. Whilst neither the judge at the special hearing nor the judge presiding at the trial adverted directly to the possibility that she might feel under pressure to answer untruthfully, the combination of circumstances that were drawn to the child's attention and the emphasis placed on the provision of truthful evidence were, in our view, sufficient to cover the position. In any event, it is apparent that on those occasions on which the judge formed the view that L may have felt that she was being subjected to pressure or when the questioning was inappropriate or possibly confusing to the child, her Honour intervened. Certainly one or other of the counsel would not have permitted this to pass unnoticed. No problem of that kind arose or has even been put to us as a reasonable possibility.

26 The claimed prior inconsistent statements to which this ground relates were said to have been made in the VATE interviews. The evidence of what was then said was adopted by L in the special hearing and became part of the evidence in the trial. Any inconsistencies between statements made in the course of the two interviews or otherwise in the trial itself were simply not encompassed by the principles relating to prior inconsistent statements. It is trite to point out that those principles are concerned with out of court statements that are not part of the evidence in the trial. The statements constitute one of the means by which the credibility and reliability of a witness' evidence in the court can be tested. They would otherwise not be admissible and when admitted, unless adopted, cannot be used as evidence of the facts asserted in them. Where the inconsistencies emerge from the evidence in the trial, the comparison is still made but by reference to admissible evidence.

27 The contention that her Honour erred in his directions as to the evidence of complaint by L to Ms May also lacks any substance and, again, there was no exception taken to those directions by counsel appearing on behalf of the applicant at the trial.

28 This use to which such evidence could properly be put and, perhaps even more importantly, that it could not be used for any other purpose or reasoning process was emphasised by the judge in carefully crafted instructions on more than one occasion.

In considering the evidence of complaint, in considering the evidence of the conversation with Rachel May, you should bear in mind that of course it springs from the same source as the evidence of the crime. That source being [L]. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of [L] giving additional support to the probability that the crime happened. It is only effect, the only effect of this evidence, is upon the credibility - is upon your assessment of the credibility of [L] as a witness. The credibility of her version of events. The conversation with Rachel May is not led as to the truth of the allegations [L] then made. It is not direct evidence of the alleged offending in the way that the other evidence that she gave is direct evidence of it.[8]

...

You may not use Rachel May's evidence that [L] said that the last occasion, to Rachel May, was the previous Sunday. That would be using this conversation as to the truth of what was said within it, and you cannot do that. So you are left with the inexact evidence of what period of time passed. However, the issue here, I direct you, is not so much an issue of precise time. Rather, whether the timing of the conversation and all of the other relevant circumstances, including the circumstances of the conversation itself, do show consistency. Whether those things do show consistency and, therefore, support for the credibility of [L].

So that is how you approach it. You do not trouble yourself with whether it was so many weeks or not. You look at all of the circumstances, and that would include the age and circumstances of the complainant and the circumstances of the conversation itself and what circumstances surrounded it. You use those things, the timing of the conversation, the conversation and its circumstances to the question of whether or not, in your mind, those things, this evidence shows consistency and, therefore, supports the credibility of [L] in her version of what she said happened to her. This evidence, this conversation on 6 September with Rachel May may only be used for that purpose. It may only be used for that limited purpose. As stated, it is a matter for you as to whether or not this evidence does show that consistency or whether it does not.[9]

...

As I have said, you may use the conversation of 6 September in relation to the question of whether it supports the credibility of [L]. If you find it was made at a time and in circumstances that you assess shows consistency. Now, you may also use the conversation and the circumstances as to consistency and, therefore, credibility even if you do not find that it was made at the first reasonable opportunity. That is irrespective of the timing of it. Now, if you do not find that it was made at the first reasonable opportunity or at a time that shows consistency or tends to show consistency, the evidence from the Crown's point of view may lack the added support of timeliness or timing of the allegations, but it still may be used by you as to the question of [L's] credibility. For example, you may consider its circumstances and compare what was said to Rachel May with what was said in the VATEs about the alleged offending, and you can do that to assess the consistency or inconsistency of [L's] conduct.

The Crown says it evidences, it shows consistency. The defence says that that consideration shows inconsistency, and I have already put some of the arguments to you about the conversation in that slightly different context a moment ago. I remind you that what was said to Rachel May may not be used as to the truth of the allegations made. It is not to be used as direct evidence of the allegations, not to be used as direct evidence of the alleged offences. Therefore, for example, it is not evidence that the last occasion of offending was the previous Sunday. It is not evidence that there were six or seven occasions of offending. That is not the Crown case. The Crown alleges three specific occasions, three specific offences and no more than that.[10]

30 Attributing to the jury even a modicum of common sense, they can be taken to have understood those instructions and to have appreciated the importance of properly employing the evidence.

31 It can be seen from the passages set out above, that the judge was careful to ensure that the jury understood that the statements made by L to Rachel May could only be used to demonstrate consistency in the version of events given by her. As we have pointed out above, they were specifically instructed that 'the conversation with Rachel May is not led as to the truth of the allegations [L] then made.' Those statements contained the only references to the commission of uncharged acts by the applicant. In other words, there was simply no evidence before the jury of the commission of any uncharged acts and, accordingly, no necessity for the judge to provide instructions concerning them.

32 There was no evidence to which an instruction or propensity warning could attach. Unsurprisingly, none was requested by the applicant's counsel at the trial.

33 Counsel argued that the convictions should be viewed as unsafe for a number of reasons. He pointed to inconsistencies in L's versions and the difficulties encountered by counsel in cross-examining her at the special hearing; submitting that she had difficulty in responding to questions put to her. There is no doubt that L did find some of the questioning confusing, but as the following extracts demonstrate that was hardly surprising -

[COUNSEL]: You would make up things against him to get him into trouble wouldn't you; you've done that?

[WITNESS]: What do you mean?

[COUNSEL]: I beg your pardon?

[WITNESS]: What do you mean?

[COUNSEL]: I'm sorry I'm not sure what she said.

[HER HONOUR]: The witness said, 'I don't understand.'

[COUNSEL]: You would make up things, tell your mother, tell lies about him wouldn't you, because you didn't like him?

[WITNESS]: Probably.

[COUNSEL] Probably. Because what you've done here in these two videotapes is to tell lies isn't it?

[WITNESS]: What do you mean?

[COUNSEL]: You've told the police ladies things that are not true haven't you?

[WITNESS]: No.

[COUNSEL]: Why did you make two videotapes?

[WITNESS]: I don't know.

[COUNSEL]: You don't know. That are over 12 months apart, aren't they?

[WITNESS]: Yes.

[COUNSEL]: Do you think they're the same.

Shortly afterwards, the judge reminded counsel that -

The language needs to be age-appropriate. She is eight.

[COUNSEL]: Now, in the first video tape that you made, you said everything happened on one day, didn't it?

[WITNESS]: Yes.

[COUNSEL]: Was that true?

[WITNESS]: What do you mean?

[COUNSEL]: Was that true?

[HER HONOUR]: No, the witness said 'What do you mean?'. You can't repeat the question.

[COUNSEL]: All right. (To witness) You said in the first video tape that everything happened on the one day, didn't you?

[WITNESS]: Yes.

[PROSECUTOR]: I don't think that's quite right, Your honour, because she didn't say anything about the third incident.

[HER HONOUR]: No, I understand that. So the question can, though, relate to those incidents that were described in the first tape were described as happening on the first day. That's - - -

[COUNSEL]: And I've taken her to that already.

[HER HONOUR]: Yes, but she's eight year old, so perhaps you could put it in a question, please.

....

[COUNSEL]: Do you remember the police lady telling you at the start that you had to tell the truth or you'd get into trouble?

[WITNESS] Yes.

[COUNSEL]: When you say you were touched with the towel or the flannel, where were you on the floor, or the seat, or the couch, mattress, what were you on?

[WITNESS]: I was on a mattress.

[COUNSEL]: In the first video tape you said you were sitting on a couch, didn't you - Question 50, Your Honour - what was it, was it a couch or the floor?

[WITNESS]: A Mattress.

[COUNSEL]: I beg your pardon?

[WITNESS]: A mattress.

[COUNSEL]: When you told the police officer in the first interview that you were sitting on a couch when this happened, when you were touched with a flannel, that's wrong is it?

[WITNESS]: Yes.

[COUNSEL]: Why it is wrong?

[WITNESS]: What do you mean?

[COUNSEL]: Do you know what confused means?

[WITNESS]: No.

[COUNSEL]: Perhaps I'll leave it for a comment.

34 That L became distressed when giving evidence and in the situation she found herself generally is hardly surprising and by no means unknown in cases involving adult complainants. Any inconsistencies in the evidence, the practical difficulties involved in testing the evidence of a child and the possibility that her evidence may have been influenced by her sense of the expectations of others, including her mother, would have been recognised by the jury as ordinary experienced people, even if absolutely nothing was said about them. But here, they were fully and appropriately instructed and, in the context, of a contested hearing with arguments being advanced by both counsel.

35 The conclusions at which they arrived, and notably the acquittal on count 3, were open and consistent with the proper application of the standard of proof beyond reasonable doubt to the evidence adduced in the trial. We are far from persuaded that applying the principles set out in M v R[11] that the intervention of this Court would be justified.

36 There being no substance in any of the grounds of this application, it must be refused. However before leaving the matter, we would add that not only were the complaints advanced entirely without arguable merit in our view, but none were made at the trial. This could hardly be described as satisfactory.

[1] The summary of the evidence in this judgment has been prepared from the trial transcripts, the VATE recordings transcripts and the summaries provided to the court, it does not purport to contain all of the evidence on matters addressed in examination-in-chief or cross-examination but is sufficiently comprehensive, we consider, to enable the issue raised by the application to be understood.

If a child or a person with a cognitive impairment is competent to give evidence, the court must, before the evidence is given, explain to the child or person in the absence of the jury (if any) -

(a) the importance of telling the truth and of not telling lies; and

(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should let the court know if this occurs; and

(c) that he or she may be asked questions that make suggestions that are true or untrue and that he or she should agree with the statements that are true and should not feel pressured to agree with statements that he or she believes are untrue.

[3] [1993] 3 VR 537.

[7] See Victoria Law Reform Commission, Sexual Offences; Law and Procedure, Final Report 5.95-5.96, Recommendation 137.

[11] [1994] HCA 63; (1994) 181 CLR 487.