R v E R J [2010] VSCA 61

Court of Appeal (Vic)|2010-03-29|Before: REDLICH and HARPER JJA and WILLIAMS AJA

The Queen v ERJ (Unreported, County Court of Victoria (Judge Leckie, 27 June 2008)

CRIMINAL LAW - Refusal to allow cross-examination as to sexual relationship - s 37A Evidence Act 1958 - Whether evidence had substantial relevance - Whether exclusion of such evidence unfairly bolstered complainant's credibility - Delay in making complaint - Delayed recognition by complainant of wrongfulness of acts - s 61(b)(1) - Obligation to inform jury 'that there might be good reasons' for delay - Whether verdicts logically inconsistent - ; applied - Whether verdicts unsafe.

1 Following a trial in the County Court the applicant was convicted of two counts of an indecent act with a child under 16 and nine counts of incest. He was acquitted on one count of indecent act with a child under 16 and three counts of incest. The complainant on each count was his daughter. The applicant was ordered to serve a total effective sentence of 11 years and four months imprisonment with a non-parole period of seven years and six months fixed.

2 The applicant now seeks leave to appeal against conviction and sentence. The conviction appeal is brought on two grounds. First, that the verdicts were unsafe and unsatisfactory. Second, that the trial judge erred by refusing to allow his counsel to cross-examine the complainant or introduce evidence that related to the complainant's previous sexual history.

3 It was the prosecution case that the applicant commenced sexually assaulting his daughter when she was approximately 12 years of age. This conduct escalated to intercourse when she was approximately 13 and continued over a period of five years between January 2001 and October 2006. It ceased when the complainant moved out of the family home.

4 At trial, the prosecution relied solely on the evidence of the complainant. The applicant's defence involved a denial that any of the alleged conduct had occurred. It will be necessary to refer to the evidence on each count in some detail in dealing with ground 1.

Refusal to allow cross-examination as to sexual relationship

The trial judge erred in refusing to allow counsel for the applicant [to] question the complainant and the complainant's [boyfriend] as to whether:

(a) they had a sexual relationship;

(b) the applicant was aware that they had sexual relations at the applicant's premises;

(c) the complainant had a 'pregnancy scare' as a result of her sexual relationship with her boyfriend.

6 At the trial, during evidence in chief, the complainant said that when she was aged 14 and 15, a time at which she was having frequent intercourse with the applicant, she had a 'pregnancy scare'. She purchased 3 tests from the chemist. The applicant drove her into town and gave her money to purchase the tests as well as some lollies. He told her that if she became pregnant he would take her to Adelaide to have an abortion.

7 It is also necessary to refer to evidence from the committal. The complainant had testified in respect of count 12 that she had received a love bite from her father. That love bite was to be used by the prosecution in support of her claim of intercourse with her father around that time. The complainant also testified that she had been concerned that she was pregnant to her father and had some pregnancy tests. She was not asked if she had a pregnancy test in any other circumstances, as a result of intercourse with anyone else.

8 The complainant's boyfriend gave evidence at the committal that during his relationship with the complainant he slept at the applicant's property most Friday and Saturday nights and that he had sexual relations with the complainant at this time. According to the boyfriend, the applicant did not express any disapproval of this relationship. He also testified that the complainant had a 'pregnancy scare' as a result of his relationship with her, and that she took a pregnancy test in consequence. He said he went with her to get a pregnancy kit from the supermarket and that she used it and it was negative. He stated that he had given her a 'hickey' at around the time that she claimed to have received a 'love bite' from her father.

9 Prior to the empanelment of the jury an application was made seeking leave to cross examine the complainant as to the following four matters that arose out of the evidence at the committal:

(1) sexual activities with the boyfriend, and in particular how the complainant came to have a love bite on her neck;

(2) the fact that as a result of her relationship with her boyfriend the complainant became apprehensive about being pregnant and had a pregnancy test;

(3) the fact that the complainant engaged in sexual intercourse on occasions when the complainant and her boyfriend were at the complainant's house (this was ultimately not persisted with); and

(4) the fact that the complainant alleged she was touched on the breast by a former employer of hers, GM, in August 2004 and (alleged in a statement made at that time) that it was the first time anyone had touched her on the breast and further that she had not been sexually assaulted before.

10 The application called for consideration of s 37A of the Evidence Act 1958 which regulates the circumstance in which cross-examination may be permitted, or evidence admitted concerning the previous sexual history of a complainant. Such evidence may only be introduced by leave of the Court[1] where the Court is satisfied that the evidence has 'substantial relevance to a fact in issue' and 'that it is in the interests of justice' to allow the relevant party to 'cross-examine or to admit the evidence'.[2] The section sets out the factors to which the Court is required to have regard:

(i) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of his or her age and the number and nature of the questions that he or she is likely to be asked; and

(ii) the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury; and

(iii) the need to respect the complainant's personal dignity and privacy; and

(iv) the right of the accused person to fully answer and defend the charge...

11 Following submissions from both parties the trial judge granted leave with respect to items (1) and (4).

12 With respect to (1), evidence of the love bite was ruled to be of sufficient probative significance to permit it to be put before the jury. The trial judge accepted the defence submission that as there was a direct contradiction between the boyfriend's claim that he gave her the love bite and the complainant's account that she received it from her father during intercourse with him, that it was therefore necessary for that part of the boyfriend's evidence to be put before the jury. The judge directed that the defence could suggest some level of intimacy to explain the love bite but could not examine the activity in detail or suggest that it involved sexual intercourse.

13 In respect of (4), the material before the trial judge indicated that the complainant had sworn a police statement making allegations of sexual assault against the former employer (GM). That statement included the assertion that, as at the time of making the statement, GM was the only person who had ever sexually assaulted her. This was inconsistent with the allegations of sexual assault made against the applicant, which included assaults over an extended period prior to the incident involving GM. The trial judge ruled that this inconsistency justified the admission into evidence of the content of the statement.

14 The trial judge refused leave to admit evidence of item (2) - the complainant's sexual relationship with her boyfriend. His Honour upheld the submission of the prosecutor that the fact of a sexual relationship between the boyfriend and the complainant was not relevant to the complainant's claim that she did not consider there was anything wrong with having sex with her father. In relation to the issue of the pregnancy test, his Honour refused leave to adduce evidence that there may have been a pregnancy scare with her boyfriend. His Honour ruled as follows:

... in relation to the pregnancy scare, her evidence in her statement is that there were at least three pregnancy scares with her father. I don't understand that she was asked any questions about that at the committal.

She never denies that - she's never asked, but there's no denial of there being a pregnancy scare with the boyfriend [...], so it's a lot weaker than the love bite evidence, if you like, in that there's no immediate contradiction. [...]'s evidence is entirely consistent with what the complainant says in her statement. If the complainant said that she's only ever had one pregnancy test and one pregnancy test only and that was with her father, then I suppose there might be a contradiction, but in this case there isn't a complete contradiction.

15 The following evidence of the complainant in respect of the pregnancy tests was subsequently led at trial:

The prosecutor : Despite those practices [the withdrawal method], was there any occasion where there was a concern that you could be pregnant? - Yes, there was.

Do you recall how many times that occurred, what we might call a pregnancy scare, how many times? - Well there was one occasion when I had to have three pregnancy tests because my periods are irregular and they were like three months late - a few months late and - yes, over three months, I had three tests done.

His Honour: There was one incident but three tests? - Yes.

Prosecutor: You said that your periods were irregular, was that I don't want to get too personal - are you just talking about on that one occasion or are you talking regularly? - Regularly, they're always irregular.

The three pregnancy tests that you had, was that one month after another, is that what you're saying, correct me if I'm wrong? - I - I can't really remember but they were closer than one month after the other, but within a three month period, that's how long it took me to get my periods, three months, in that time.

Where did you purchase those pregnancy tests from, do you know? - I purchased one at the chemist and a couple at the supermarket I think.

When you purchased those, were you by yourself or with someone else? - Dad drove me into town and dad just gave me the money to go and get that and some lollies as well.

Did you have any conversations with your father about what would be the consequences of you becoming pregnant, what would happen? - He said if I become pregnant he'd take me to Adelaide to have an abortion.

Did he say anything about what he would do to himself or anything? - Once he said that he would kill himself if I become pregnant but then he said he couldn't leave me to mum because mum would disown me.

Despite any pregnancy scares, you never became pregnant to your father, you never fell pregnant? - No I didn't.

16 Consistent with the judge's ruling, no suggestion was made or evidence led that the complainant's relationship with her boyfriend included sexual intercourse. No evidence of the pregnancy test was led. The complainant gave the following evidence of her relationship with her boyfriend:

Just finally, in the later years, I think you said that you had one boyfriend, [...].

Yes.

What restrictions, if any, were placed upon you by your father? - Well, he didn't like us cuddling in front of him or kissing or touching each other in front of dad. He just didn't like that. He didn't like being - he didn't really like me going out with [...].

Did he tell you that or how do you know that? - He used to tell me that [...] was , 'a dropkick' and 'He's only using you' and such.

What about to [...]'s face? - I can't remember.

Was he the only boyfriend you had in that period up until you were 18 or were there others? - I - I just went out with a couple [of] guys but that's it. So he was the only actual boyfriend.

You were allowed to go out with those other boys? - Yes, I only - I don't think I asked dad if I could go out with them but he - I'd usually have to ask permission to go out with someone.

17 The applicant submitted that as a consequence of the ruling he was denied the opportunity to suggest to the complainant that she had transposed the pregnancy scare with her boyfriend to a pregnancy scare with her father.

18 In my respectful view, the trial judge erred in refusing the defence leave to put to the complainant that she had a pregnancy scare which occurred because of her relationship with her boyfriend. The complainant's response to that inquiry would have had substantial relevance, whether it involved an admission or denial.

19 In R v Sadler,[3] the trial judge had wrongly refused to permit the defence to suggest to the complainant that she was a heroin user at the relevant time. The trial judge had reasoned that because the complainant had previously denied using heroin at the relevant time, she would continue to deny it if asked about it at trial and it would therefore be futile to permit counsel to ask her. The Court in Sadler said:

Section 37 is concerned with whether the truth of the imputation conveyed by questions would seriously affect the opinion of the court as to the credibility of the witness on the matter to which the witness testifies. The discretion conferred under s 37 is to be exercised having regard to the questions. The trial [judge] wrongfully focused upon the possible answers that might have been given. If the questions satisfied the criteria set out in s 37(a) the judge was not entitled to prohibit the questions because of the anticipated answer. Nor was counsel obliged to indicate the nature and extent of the other evidence that might have been called to establish the truth of the imputation. ... it can hardly ever be a sufficient reason to deny defence counsel the chance to put questions relevant to the credit of a witness that the witness has previously denied what is proposed to be put.[4]

20 The Court also noted in Sadler that it is not infrequently the case that a witness may change their account between the committal and the trial. The Court said that:

... considerable latitude should be allowed within the confines of s 37, and care should be taken not to stop at cross-examination which, although it may at first appear possibly wide of the point, may subsequently prove to be of value.[5]

21 Similarly, in the present case, the trial judge did not focus on the question but on an anticipated answer. But unlike Sadler the complainant had never been asked about the fact in issue. She had given no evidence about whether she had a pregnancy scare with her boyfriend, as it had never been put to the complainant at the committal. The trial judge appears to have assumed that if asked, she would have said that she had a pregnancy test with her boyfriend as well as her father. But as was conceded on the appeal, there was no basis upon which such an assumption could be made.

22 Were the complainant to have denied that she had a pregnancy test with her boyfriend, contrary to the assumption made by the trial judge, then an inconsistency of the same nature as the 'love bite' would have arisen. The jury's acquittal on the 'love bite' count demonstrates how the issue might have assumed significance on the trial if the complainant had denied that she had a pregnancy scare with her boyfriend.

23 If she had admitted a pregnancy scare with her boyfriend, as well as her father, it would, in my respectful opinion, have had substantial relevance to a fact in issue. The judge's ruling denied the defence the opportunity to cross-examine the complainant, leaving her evidence unchallenged that the pregnancy scare was the consequence of sexual intercourse with her father. That unchallenged evidence added some potentially persuasive detail to her account.

24 The prosecution was permitted to lead evidence of the pregnancy test, presumably because it was perceived to have some probative value in proof of the offences. It lent an air of verisimilitude to her account.[6] Her evidence was unfairly bolstered by her consequentially unchallenged detailed description of the circumstances of the tests. The jury's assessment of credibility does not necessarily proceed in a linear manner. Factual issues including questions of credit will often not be resolved in isolation from each other. Decisions as to credibility are often based upon matters of impression, and a view based upon even an otherwise minor issue may be decisive. The consequences of an attack, or the absence of an attack, as to credit cannot be assessed as though credit is divisible, issue by issue.

25 The applicant's answer to the complainant's claim was that, as had been stated by him in his record of interview, the complainant had pregnancy tests but she had them with her boyfriend. Once evidence of having pregnancy tests was admitted, the defence should not have been precluded from pursuing the explanation given by the applicant in answer to what would otherwise appear as an incriminating event. And given the limitations imposed on the applicant's counsel as a consequence of the ruling, a sound forensic judgment meant that he could not cross examine her on the issue at all. To have conceded by any questions that she did have pregnancy tests without being able to suggest that they were the consequence of her relationship with her boyfriend would have further disadvantaged the applicant.

26 As a consequence of excluding the applicant's assertions in his interview that the pregnancy tests related to her boyfriend and that he did not accompany her on those occasions, no innocent explanation for the pregnancy tests was before the jury. Evidence that at the time of taking a pregnancy test, she was in a sexual relationship with someone other than her father, and evidence of his denial that they related to any relationship with him or that he accompanied her on these occasions, had substantial relevance.

28 In support of this ground senior counsel for the applicant relied upon a number of specifically enumerated factors which, he submitted, affected the credibility of the complainant, such that the conviction on each of the counts ought be regarded as unsafe or unsatisfactory.

29 Before considering this submission it is necessary to briefly set out the detail of the counts alleged against the applicant at trial.

30 The offence constituting the first count of incest (count 2) occurred when the complainant was about 12 years of age. She said that she was in the lounge of the family home with the applicant and that they were sitting on the floor by the fire. The applicant put his hand down her pants and his finger in her vagina. The complainant said it hurt because his fingernails were digging into her vagina. He asked her if it felt good, and she felt obliged to say that it did. She said that afterwards she went to the toilet and that her vagina felt sore.

31 The indecent acts with a child under 16 (counts 3 and 4) occurred when the complainant was about 12 or 13. The complainant said that the applicant took her into his bedroom and rubbed his penis against her vagina. She said he did it and quickly moved away. She could not recall any other details. In respect of count 4 the complainant described another occasion in the bedroom when the applicant asked her if she would mind if 'white stuff came out'. She said she did not know what he was talking about and did not object. Under cross-examination she agreed that she could not give any details about when it occurred, who was home, what clothes they were wearing or if the applicant had ejaculated.

32 The applicant was acquitted on count 6 (indecent act with a child under 16). The complainant testified that when she was about 13 or 14 her father was teaching her kickboxing in the shed beside the house. She said she would take her clothes off while he taught her and that he would watch.

33 Count 5 (incest) was particularised as the first occasion of penile penetration. The complainant testified that she was about 13 at the time. She was on top of the applicant in his bedroom. She said he wanted to get his penis inside her. Penetration was difficult and the applicant said to her 'if a baby can fit out there, my dick can fit in there'. She said there was no pain and that the applicant was 'gentle'. She said he pulled out quickly at the end and so she did not know if he ejaculated. Under cross-examination the applicant was challenged as to the lack of detail she provided. She agreed she could not provide any greater detail as to when it occurred nor could she give any other details of the circumstances in which the offence occurred.

34 The complainant testified that incidents of penile penetration occurred in Barrabool when the complainant was 13 to 14 years old (counts 7 and 8). She said that she and her father used to visit that location to swim in the channel. She said her father would make her take her clothes off and swim in his singlet because 'he didn't want mum to know they were swimming'. She testified that they had sexual intercourse on two occasions. In respect of the first, she said she was sitting on the seat of the applicant's Land Rover. In respect of the other, she said she was standing outside. The complainant gave evidence that at that time she thought that her activities with her father were normal, and that she had no choice anyway. The applicant was acquitted on counts 7 and 8.

35 In respect of Count 9 (incest) the complainant said her father moved into the family shed when she was about 15. She said on one occasion she was on the couch in the shed and he kept asking her 'give us a fuck'. She kept replying 'no', until he 'made her feel bad' and she finally gave in. She said she sat on the couch as he spread her legs and let him have his way with her. She could not recall any other details of the incident.

36 The complainant said that there was a time when she was about 14 or 15 when she was in the shed with the applicant and they were having sex on the bed when they heard some coming towards the area. She had no pants on and so she climbed under the bed because she did not have time to dress (count 10).

37 The complainant said that close to her sixteenth birthday, a time she remembered as after her grandfather was killed in a car accident, the applicant moved back into the family home. He told her that she had to sleep in the same bed as him for comfort. He promised nothing would happen but in the morning she said he would touch her and have sex with her. She said he would be behind her and he would have sex with her from that position (count 11).

38 During this period, the complainant was working at a store in Murtoa belonging to one GM. She said that she was sexually assaulted by GM at this time and that charges were laid. She said the applicant told her that she ought drop the charges as he felt sorry for GM. The complainant made a statement on 9 June 2005 in which she alleged GM touched her breasts and that no-one had ever touched her breasts before. This claim was inconsistent with the allegations she made against her father which concerned events which preceded that date. When challenged under cross-examination she said that she 'couldn't say anything about dad' because she was scared when she made her statement.

39 The complainant began seeing a boyfriend and went out with him between November 2004 and early 2005. The complainant said that she was working at Lloyd's store during 2005. She attended work on one occasion with a love bite on her neck. She testified that her father gave it to her while they were having sex (count 12). Under cross-examination it was put to the complainant that she was in a relationship with her boyfriend at the time of the incident. She denied this and said she was not going out with him at that time. The boyfriend was called and testified that he gave her a 'hickey' whilst she was working at Lloyds. The applicant was acquitted of count 12.

40 In respect of count 13 the complainant said that just before she was introduced to the applicant's new girlfriend in around September 2005, the applicant said he was 'sex starved'. She said she felt obliged to comply and had intercourse with the applicant.

41 At about this time the complainant said she asked her father if she could go out with a boy, CP and he said 'no way'. Later, he said 'give us a fuck and I'll think about it'. She said that she consequentially agreed to have sex with her father and that she 'texted' CP while having sex with her father, although she ended up not going out with CP (count 14).

42 The complainant testified that the incest, the subject of counts 15 and 16, occurred in about October 2006 and as a result the complainant left the family home and moved in with her mother. The complainant said that about two weeks before she moved out she wanted to go to Horsham but her father would not let her go by herself. She said that on the first occasion he said 'give us a fuck and you can go wherever you like'. On a second occasion he said 'if you give us a fuck I'll let you go to Horsham'. In response to this, she had sex with him, once in her bedroom and a second time in his bedroom.

43 The applicant's record of interview was played to the jury. It contained a denial of each of the complainant's allegations.

44 I now turn to the submissions in support of the ground that the verdicts were unsafe and unsatisfactory. The applicant first emphasised that the complainant's evidence was uncorroborated. Second, there was no evidence of recent complaint. Third, there was a delay in the making of the complaint so as to cause the applicant, what was said to be, considerable forensic disadvantage. Fourth, that the applicant 'emphatically' denied all allegations when interviewed by police.

45 The remainder of the applicant's submissions in respect of this ground concentrated upon what was said to be inconsistencies in the complainant's account. The complainant had previously sworn in April 2006, when alleging a sexual assault by GM, that she had never been sexually abused on any previous occasion. It was emphasised on the appeal and at trial that the allegations of the complainant comprising the majority of the charged and uncharged acts occurred prior to this date.

46 The defence also referred to a number of internal inconsistencies in her accounts. In relation to count 2, the complainant said at trial she was sitting on the floor, but in her statement she said she was laying on the floor. On count 5, the first occasion of penile penetration, the defence pointed to the fact that the complainant agreed that the account contained in earlier notes handwritten by her differed from her evidence at the trial. On count 9, the defence pointed to an inconsistency between her evidence that the applicant spread her legs, as against an earlier statement that she spread her own legs on this occasion.

47 Counsel for the applicant also sought to rely upon, what was submitted to be, implausible aspects of the complainant's evidence. Counsel emphasised, for example, the evidence in respect of the complainant in respect of Count 14. The complainant said she had agreed to have sex with the applicant so that he would permit her to go out with a friend and that she text messaged the friend whilst the sex occurred. This was, it was submitted, an 'incredible' statement that undermined the complainant's entire credibility. It was also submitted that the complainant's allegation was 'similarly incredible' that, in December 2005, the applicant said it would be all right if she became pregnant to him, and that thereafter he stopped wearing a condom or withdrawing during intercourse. Counsel also submitted that there was something improbable about the complainant's claim that the applicant said during 2006 that he was 'going to breed [his] own girlfriend'. Following this statement, the complainant said at trial that she realized that 'this isn't right' and that her relationship with her father was not normal. The applicant submitted on appeal that this was unlikely because she had by this stage claimed to have been sexually assaulted by GM and had a previous boyfriend and must have realised before then that her experiences with the applicant were abnormal and wrongful.

48 I should not pass without some observations on the last point made by counsel for the applicant and the associated contention that the complainant's delay in the making of the complaint necessarily compelled the conclusion that the complainant's account was implausible. The Court was encouraged to place great weight on the complainant's delay in making a complaint.

49 A delay in the making of a complaint may adversely affect the credit of a complainant, where that delay is inconsistent with the complainant's account. But the mere fact of delay between the alleged offence and the complaint will not necessarily be such as to permit reasoning that the complainant's credit is affected. It is the nature of the delay in the overall circumstances of the case, which is critical. In cases involving sexual offences, where the issue of delay is raised before the jury, section 61(b)(1) of the Crimes Act 1958 requires the trial judge to inform the jury "that there might be good reasons" why a complainant may delay in the making a complaint. These reasons will be relevant to the jury's assessment of the significance of the delay. The reasons to which the trial judge should refer are not to be confined to any explanation that the complainant may advance for any delay.

50 The contention that the complainant must have known that her relationship with her father was improper was not substantiated nor did it necessarily follow that the complainant's sexual relationship with her boyfriend marked a point in time at which she must have realised the improper nature of her alleged relationship with her father. While that inference may have been open to the jury, it is not one which we are compelled to draw from the circumstances of the case. There are many reasons why a complainant might delay in the making of a complaint, or may be slow to recognise the wrongfulness of the conduct against them.

51 In cases involving sexual offences, victims may delay in making a complaint about the abuse. The offender will often be a trusted family figure or one upon whom the victim is emotionally dependent. Even where the victim has had some other sexual experience, they may view their relationship with the offender as special. Commonly the victim will have no reference standards with which to judge their experiences apart from those supplied by the offender. Hence the complaint may be delayed for reasons which may include a conviction that there is nothing wrong with or abnormal about the acts. There may be other reasons for delay. The victim may be sworn to secrecy. There may be compulsion to secrecy by threats. There may be imposed or misplaced feelings of responsibility for the acts. The victim may fear family dissolution or punishment of the wrongdoer. There may be misplaced guilt or self blame. And the victim may employ various strategies to cope with the abuse such as repression of the acts so that conscious knowledge of them is concealed, suppression of the acts to avoid conscious recall of the events or even psychological disassociation from the acts.[7] Any of these factors may contribute to delay in making complaint or a delayed conscious recognition that the conduct was wrongful. These are not necessarily explanations that the complainant will articulate in evidence. But the trial judge, in conformity with the statutory obligation should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant. We must take such possibilities into account in assessing the submission that the verdict is unreasonable or unsafe.

52 The applicant also sought to place great weight on the fact that the applicant encouraged the complainant to go to the police, and took her to the police to report the matter, when he learnt of the allegations concerning GM. It was submitted that it was 'unthinkable' that the applicant, if he had been committing sexual offences against the complainant, would take her to the police in respect of a complaint against another offender. Counsel for the applicant pressed that this 'surely...bespeaks innocence' and that 'it is beyond belief' that the applicant would be having sex with the complainant before and during the period in which the police were investigating GM.

53 In considering this question, the applicant further submitted that the acquittals on counts 6, 7, 8 and 12 rendered the verdicts unsafe as the jury had sufficient doubt about her credibility or reliability on those counts. This was not the subject of a discrete ground.

54 Both sets of joint reasons in MFA rejected as erroneous, the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.[8]

55 Where an accused is charged with multiple offences, differences between the verdicts may not involve inconsistencies even of a factual kind.[9] The significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. The ultimate question concerns the reasonableness of the jury's decision. Here the jury was directed to give separate consideration to each count. It was accompanied by a specific instruction that the evidence of the complainant could be accepted in whole or in part. There being no objective evidence of each of the sexual assaults, some jurors may have considered, on some counts that it was more probable than not that the complainant was telling the truth but required something additional before reaching a conclusion beyond reasonable doubt.[10] That did not necessarily involve a rejection of the complainant's evidence. As the joint reasons of Gleeson CJ, Hayne and Callinan in MFA state:

'a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant'. It may simply reflect a cautious approach to the discharge of a heavy responsibility.[11]

56 In the present case the verdicts can be reconciled, allowing this Court to conclude that the jury performed their function as required.[12] There is a logical and reasonable basis for sustaining the differentiation that the jury drew.[13] The central issue was the credibility of the complainant, upon whose testimony the Crown case solely rested. Were the evidence on the acquittals indistinguishable from that upon the other counts, it might be that they could not be reconciled without concluding that the complainant was lying in respect of those counts. As credit is in that sense indivisible, inconsistency where it cannot otherwise be explained may have the consequence that the verdicts cannot be sustained. But, as senior counsel for the Crown submitted, there were deficiencies in the complainant's account which explained the verdicts on those counts and which did not necessarily involve an adverse finding as to credibility.

57 Under cross-examination in relation to count 6 the complainant, was unable to recall whether she had been wearing underwear as she had earlier claimed. Counts 7 and 8 (incest) related to sexual penetration alleged to have occurred on the holiday at Barrabool. Under cross-examination the complainant conceded that she could no longer remember the positions they had adopted when having intercourse in or by the Land Rover. When pressed she said 'they did happen I was there, I just can't remember exactly how it happened'. Finally Count 12 was identified by the love bite which formed part of the particularisation of that offence. Once there was doubt about who caused the bite it could not be used as an identifier for the alleged act of incest. The jury verdict is consistent with recognising that uncertainty in respect of that piece of evidence.

58 The explanation for the acquittals on these counts may thus be that the complainant showed uncertainty as to some matters of detail while on others she may have had a faulty recollection. I do not accept that this is an occasion of 'legal or technical inconsistency', whereby the jury have returned verdicts which, in law, cannot stand together. Logic and reasonableness did not necessarily dictate a common approach to the several verdicts concerned.[14]. And as the joint reasons of McHugh, Gummow and Kirby JJ in MFA state, juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion.

59 Notwithstanding the comprehensive submission that the verdicts are unsafe or unreasonable, I am not persuaded that the verdicts are unreasonable and cannot be supported by the evidence[15] or that 'the nature and quality of the evidence is so inherently suspect and devoid of probative value'[16] that it could be concluded that the jury should have experienced a reasonable doubt. The judge's extensive charge set out each of the inconsistencies and improbabilities relied upon both at trial and on this appeal. These issues were quintessentially jury questions. None of the matters raised at trial, and highlighted on this appeal, required the jury to entertain a reasonable doubt. The comments of Brennan J in his dissenting judgment in M v The Queen are apposite:

The evidence in the trial reveals no feature on which a court's assessment should prevail over the assessment made by the jury. It is the jury's composite and broad experience of life that is paramount in our structure of administering criminal justice. Words in a printed transcript may tell one story to the critical legal mind and another to those who test a story for truth or falsehood according to a broad experience of life. Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting

to tell the truth. It is the sad but salutary experience of every counsel for the defence that the prosecution's 'weak point' is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness ...

On a matter as difficult as child sexual abuse where the focus of the trial must be on the veracity of the child and where both child and alleged aggressor give evidence, an assessment of evidence by an appellate court is a poor substitute for the assessment made by the jury. And that is so for a very basic reason: our belief in the validity of the life experience of juries. When, as in this case, a finding of guilt or innocence depends on nothing but a contest between a child and her father as to what happened between them in the absence of others, I am unable to substitute any view that I might form for the view formed by the jury. Indeed I echo the frequent observation of trial judges that the responsibility rests with the jury and not with me.[17]

60 Although this ground cannot be sustained, the error the subject of ground 2 has occasioned a miscarriage of justice which requires the convictions to be quashed and a new trial ordered.

61 I have had the benefit of reading the reasons in draft of the presiding judge. I agree with them and have nothing to add.

[6] R v Morrow [2009] VSCA 291, [127].

[7] Dr Ben Mathews, 'Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice, (2003) 11 Torts Law Journal 218, 1.1; Leanne Bunney, 'Limitations of Actions: Effects on Child Sexual Abuse Survivors in Queensland (1998), 18 The Queensland Lawyer 128, 131; Julia Werren, 'Civil Litigation and Repressed Memory Syndrome: How does forgetting impact on child sexual abuse cases?' (2007) 15 Tort Law Review 43, 44.

[8] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, [33]-[35].

[9] MacKenzie v The Queen (1996) 190 CLR 348, [10] (Gaudron, Gummow and Kirby JJ); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, [33] (Gleeson CJ, Hayne and Callinan JJ).

[10] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, [34] (Gleeson CJ, Hayne and Callinan JJ).

[12] MacKenzie v The Queen (1996) 190 CLR 348, 367. See also, for example, R v BT [2004] VSCA 44, [6]-[8] (Vincent JA); R v Yankovski [2007] VSCA 259; (2007) 17 VR 315, [33].

[13] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, [85]-[89].

[17] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, [507]-[508].

At a glance

Court

Decision date

Before

Source

Judgment (87 paragraphs)

Parties

Cases Cited (6)