R v H R A [2008] VSCA 56

R v H R A [2008] VSCA 56 - VSCA 2008 case summary — Zoe

[51]

20 In view of the grounds of the application made before us it is necessary to set out some of the detail of that interview. The complainant told the interviewer in the VATE procedure that she was six years of age. In the course of the interview, the interviewer, one Senior Constable Sutherland, referred to a discussion which she and other police had had with the complainant on the previous Saturday. The complainant was asked to repeat the conversation that had taken place on that occasion. The complainant answered that the conversation was about 'Our poppy' and 'About privacy'. She was asked to say more about what had been discussed. A viewing of the tape reveals that she then whispered, wiggled her fingers around and said 'Well, last time I went to poppy's he did his little thing about my pee pee'. She said 'This whole thing is about him licking my pee pee'. She said that she used her pee pee for 'weeing out'. She then described an incident which she said she 'guessed' had occurred six days earlier on a Sunday. She said that she was at the applicant's house and that her grandmother had gone shopping. She said that she was playing with her dolls when the applicant came and held her by the hand and led her into his bedroom. She described how she lay on the bed with her pants down. She said that she had pulled her pants down so that the applicant could 'lick her pee pee' and that he had pulled his pants down so she could' lick his pee pee'. She said that he had licked her pee pee. This allegation was the subject of count 4 on the presentment. She said that as he was doing this her brother, N who was then aged seven years and who was also staying with his grandparents at the time, entered the room. The complainant said that upon N entering the room the applicant 'pretended' to look for his glasses and at the same time pulled up his pants. She then returned to play with her dolls and her brother and the applicant went to watch cricket on the television. She demonstrated the place where she said she had been licked as being in the middle of her vagina. Subsequently in the course of the interview the complainant said that she was on her grandmother's side of the bed when the applicant was licking her pee pee. She said that she then got on top of him and she licked his pee pee. She said his pee pee was his private part, the part that he used for his weeing. She described 'poppy's pee pee' as being 'like a big stick'. She said she was sitting on poppy when she licked his pee pee. She said that when she was licking poppy's pee pee, the tip of her tongue was touching poppy's pee pee. This allegation was the subject of count 5. Accordingly the events alleged to have occurred on the last occasion that the complainant visited her grandparents were the subject of counts 4 and 5. It was alleged that the offences the subjects of those counts were committed between 21 December and 23 December 2003.

[54]

23 The complainant was cross-examined at some considerable length. She was aged nine years at the time of giving evidence. The complainant agreed that she went to stay with her grandparents on the afternoon of Sunday 21 December 2003. She agreed that the applicant had gone to work on Monday 22 December 2003. Accordingly, she agreed that the matters of which she complained (the subject of counts 4 and 5) probably had taken place on Tuesday 23 December 2003. In relation to count 2 which was based upon her VATE tape allegation that the applicant had rubbed cream into her vagina she said in cross-examination that the applicant had never rubbed cream into her 'pee pee'. She said that on occasions she had rubbed cream onto his 'pee pee'. She described his 'pee pee' as having hairs on it, and stated that it felt a little bit squishy, describing it as having a 'sort of a curve' and being a little bit fat. In relation to count 5, which it will be recalled was an allegation that between 21 and 23 December 2003 the complainant had licked the applicant's penis, the complainant said that she did not do that on Tuesday 23 December 2003. She said that it had not happened on the day that N had come in and interrupted her and the applicant in the bedroom. In the course of cross-examination she said it was not true to say that her grandfather had never licked her pee pee. She said that she was not telling the Court a lie about that matter and that she denied that anyone had told her to say 'these things' about her grandfather. In particular she denied the suggestion put to her by counsel for the applicant that her mother had told her that her grandfather had done 'those things to her'. It is appropriate to note that no suggestion is made by counsel for the applicant that the complainant's answers to questions asked in cross-examination, were anything other than responsive. It is not suggested, nor could it be, that the applicant was deprived of any realistic opportunity of testing the credibility and reliability of the complainant's evidence through cross-examination, as was the circumstance in R v NRC.[8]**

[199]

91 As stated above [55] his Honour ruled that the evidence of conversations between the child and her mother was admissible. Furthermore, and as stated above, no objection was taken to the admission of the complaint evidence in the subsequent trial, the trial judge being told by counsel for the applicant that there was an agreement to 'abide by Judge Kelly's rulings'. Indeed, a reading of the whole of the transcript of the second trial demonstrates that a forensic decision was taken by counsel to attack the credibility of the evidence of the complainant by detailed cross-examination of the mother as to what the complainant had said to her. In particular the cross-examination of the mother as to what the complainant had said to her went far beyond the matter referred to by her in her evidence-in-chief as to what she had been told on the evening of 28 December 2003 and at McDonalds on 29 December 2003. The mother of the complainant was asked numerous questions about what she had been told by the complainant and about what she said in her statement to police about such matters. Indeed, the major part of the cross-examination of the mother consisted of questions related to what discussions she had had with the complainant or to what she said in her statement and what she told police about such discussions. No doubt those circumstances explain why experienced counsel for the applicant did not make any submissions to the trial judge seeking the exclusion of evidence of the discussions had between the complainant and her mother on either 28 or 29 December 2003. The cross-examination of the mother on the occasion of the second trial (and for that matter on the occasion of the first trial) was entirely consistent with the statement made by the applicant's counsel to Judge Kelly that 'a lot of it is going to come out in evidence anyway'. No doubt careful consideration was given to this matter by the experienced counsel who acted for him on his trial. The fact that the trial was conducted in this manner fortifies the relevance of the fact that no exception was taken by counsel to the admission of the complaint evidence.**

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