R v O'Neill [2003] VSCA 204

Court of Appeal (Vic)|2003-12-12|Before: WINNEKE, P., VINCENT and EAMES, JJ.A.

The applicant was presented before the County Court on 20 February 2002 on four counts of committing an indecent act with a child under the age of 16 years (counts 1, 2 and 4) and two counts of incest (counts 3 and 5). He pleaded not guilty and a trial was conducted, at the conclusion of which the jury returned verdicts of guilty on counts 1, 2, 4 and 5 and not guilty on count 3.

After hearing a plea in mitigation of penalty, on 3 April 2002, the sentencing judge imposed the following sentences:

He directed that two months of the sentence imposed on count 2 was to be served cumulatively upon that imposed on count 5, thus creating a total effective sentence of imprisonment for 38 months in respect of which a non-parole period of two years and six months was fixed. His Honour further declared that the applicant had been sentenced on counts 4 and 5 as a serious sexual offender.

The applicant now seeks leave to appeal against his conviction on each of the counts on three grounds, namely:

"1. That the learned trial judge erred in failing to grant leave under s.37A of the Evidence Act. 2. That the learned trial judge erred in failing to exclude from evidence question 76 of the record of interview and its answer. 3. That the verdicts of the jury in relation to counts 1, 2, 4 and 5 were unsafe and unsatisfactory."

The complainant, L, was born on 22 August 1980 and was accordingly 21 years of age at the time of the applicant's trial. It was common ground that when she was approximately 11 years of age, her mother formed a relationship with him. At that time they moved to a house which they shared with the applicant in a small country town. According to the complainant, all of the offences occurred during the period that they were living at that house and between 1 January 1992 and 31 August 1992.

L stated that she was alone in the lounge-room with the applicant in the house one evening after everyone else had retired for the night he suddenly gave her a "full-on kiss" on the lips. She quickly pulled away and went to her bedroom feeling confused. He followed her, saying that he was going to tuck her in and that "everything would be all right, no one will find out."

Some days after this incident, the applicant came to her bedroom while she was getting changed. She was wearing only a T-shirt and underwear at the time. He asked her to remove her top which she did. He then told her that her body was "coming along nicely".

There was a bungalow at the rear of the dwelling that was used for storage and by the applicant for making candles. L sometimes helped him in this activity. On one occasion when the applicant had been living with the family for approximately three to four months, she found herself alone in the bungalow with him. She stated:

"He rubbed me on the bum, grabbed my hand and put it on his penis over the top of his jeans. Got his penis out of his jeans and cupped my hand with his, holding his penis, rubbing up and down. It only lasted for a couple of minutes and then he came - he ejaculated." [1]

After this episode, for the next "couple of weeks", she said:

"...on regular occasions he'd touch me either on the breasts, bottom or vagina on the outside of my clothing."[2]

She would also at his instigation touch his penis through his clothing.

Some weeks after the incident referred to in count 2, L was alone with the applicant in the kitchen of the house. She did not recall whether it was day or night, or a weekday or during a weekend. Her mother and the other children had gone to the home of a friend. In her statement to the police, she asserted that this was for the purpose of collecting wood. However, in her evidence she agreed that the family had a wood fire only after the applicant had left the household. The applicant, who was sitting on a chair, asked her to sit on his lap. She complied, sitting with her back against him. He commenced to kiss her passionately on the back of her neck. She stated that he pushed her to a standing position, pulled down the tracksuit pants and underpants that she was wearing, turned her and pulled her back so that she was sitting on him in a straddle position. This evidence contrasted with her statement in which she said that she was not turned and that she pulled her own pants down at his request. She said that he penetrated her vagina, lowering her slowly on to his penis until full penetration was effected, after which he ejaculated. The process took about five minutes and it "hurt a lot". This was the first time that she had been penetrated in this way. There was no physical contact between the applicant and the respondent for the next fortnight. She was frightened that she might become pregnant and told the applicant. He responded that he would look after her.

About two weeks after this incident, the applicant began touching her again on the outside of her clothing. On a further occasion, the complainant was alone with him in the bungalow. He was lying on a mattress.

"He asked me to lay down next to him, so I did. He started kissing me and pushed my head down towards his penis. ... He released his penis from his jeans and asked me to kiss it gently. ... I kissed down the sides and around the top. I stopped and he asked me to keep going and I didn't want to and he did up his jeans and left the bungalow."[3]

During the course of these activities, her hand went around the applicant's penis.

On an occasion shortly before the applicant left the household, he was driving the complainant to her father's home when:

"He pulled over to the side of the road and started kissing me and touching my breasts and asked me to give him oral sex. He released his penis and I did so for about five minutes and then he just stopped and put it back in his pants and drove me to Dad's."[4]

This version of events was challenged in cross-examination. It was put to the complainant, and denied by her, that there was never a time when her mother went to bed leaving her alone in the company of the applicant, as asserted in relation to count 1. She could not recall whether the incident which provided the basis of count 5 occurred during the day or evening. She agreed that the applicant had driven her to her father's home on several occasions and maintained that this was the only time that her mother had not accompanied them. She denied that there were other children in the vehicle on the one occasion when she was being taken to visit her father that her mother was not present. She accepted that she had a good relationship with her mother, but did not tell her about the offences. She had had only limited contact with her father and saw him irregularly. She never sought any medical treatment following any of these incidents.

The complainant agreed that she had made her statement to the police in July 2000. She was cross-examined extensively about claimed inconsistencies between what she then said and her evidence given at the committal hearing as to the episode when her hand was cupped on the applicant's penis (count 2). She stated that she was confused by the questions asked at the hearing and denied that her answers possessed the meanings attributed to them by the defence counsel in cross-examination.

The mother of the complainant gave evidence that, in January 1992, the family moved to the house in which the offences were said to have been committed. She had known the applicant for some time and had resumed her acquaintance with him approximately two months prior to this move. During that period they commenced a sexual relationship. He moved in with the family as soon as they arrived at the house and they lived in a de facto relationship for about eight months. She could recall one occasion on which the applicant stayed home and looked after her children whilst she was working. She also recalled an occasion on which the applicant drove the complainant to her father's residence. She agreed that at the committal hearing she had stated that the complainant would normally go to bed at between 7.30 and 8.30 p.m. Her own routine always involved her retiring after the complainant. She could not recall an occasion on which she went to bed leaving her daughter and the applicant alone in the lounge room. She accepted that this may have occurred if she was sick or had gone to bed with the younger children. She stated that the applicant drove the family to the complainant's father's house on a number of occasions. She did not agree that, on the only occasion on which she did not go with her daughter, the other two children were present in the car.

The informant gave evidence which included the playing of an edited copy of a recording of an interview conducted with the applicant on 5 November 2000. In that interview the applicant denied any wrongdoing.

The applicant gave evidence. He stated that prior to the police interview he had not previously been questioned about these allegations. He became aware that complaints had been made against him only when the police came to his house immediately prior to the interview. He had little time to think about the matter before questioning commenced and simply responded truthfully to what was put to him. He denied each of the claims made, stating that there was never any sexual activity between the complainant and himself. On no occasion did the mother of the complainant go to bed before her daughter. The mother of the complainant never went to collect wood while he lived with the family as they relied upon a gas bottle heater. He agreed that he had driven the complainant to her father's home, but always in the company of her mother.

In cross-examination, he agreed that in his police interview he was at pains to suggest that the relationship with the complainant's mother lasted only a couple of months. He said that, on reflection, he accepted that it had continued for about five to six months, but not until August 1992. He did not recall ever being alone with the children and would have remembered if this had occurred.

I propose to address the grounds in the sequence in which they were argued on behalf of the applicant.

Close to the end of the police interview of 5 November 2000, after a number of allegations were put to the applicant, the following exchange took place:

"Q.76 Do you know why [L] would say all these things if none of them were true? A. No, but from what I can remember of [L], [she] always was a little girl that wanted to be a big girl very quick from what I can remember offhand. As far as the allegations go, well, I'm sorry, they're not true, and I'm not sorry that they're not true. But, no, as far as anything - as far as that goes - no. I also have a daughter and no, definitely no - definitely not."

Application was made on behalf of the applicant for the exclusion of this evidence on two occasions. On each, the learned trial judge refused to do so, relying upon what he understood to be the effect of the decision of this Court in R. v. Arundel and specifically the following passage from the judgment of Callaway, J.A.:

"In my view that four-stage argument, although superficially attractive, should be rejected. It gives the three answers in the record of interview an importance out of all proportion to their real significance. There were simply two questions by the investigating police that gave the applicant an opportunity to suggest a motive if he wished. That is quite different from cross-examination designed to insinuate that it bolsters the complainant's credit that an accused person cannot suggest a motive for her to lie. The reasoning that Palmer's case shows to be impermissible was not deployed by the prosecutor in his final address. Neither the burden nor the standard of proof was impliedly diminished."[5]

As I understand the discussion which took place on this topic, it seems that the trial judge and both counsel misunderstood the point being made by his Honour.[6]

"[Counsel] bases his argument for excluding what is left of the answer[7] to question 76 on the premise that such a question if sought to be asked by the learned prosecutor of the accused were he to give evidence, would be impermissible as being irrelevant - see R. v. Palmer .... In so far as that is concerned [the Prosecutor], during argument, conceded that if question 76 and what is left of the answer is permitted to remain, he could neither cross-examine the accused about that subject were the accused to give evidence, nor could he make any comment or submission to the jury at any stage of the trial about that subject, and the matter would simply be left as it is to form part of the record of interview."[8]

"But he has made it clear that he does not propose to conduct the case for the prosecution in any way which would infringe the decision in Palmer or in Arundel. In particular he acknowledges that nothing he may do, or is entitled to do, would cause there to be any departure from the standard position, namely that the Crown has the burden of proof and that at no time in the trial does that shift in any way, or in any respect to the accused. Having looked at question 76 and what remains of the answer I do not see any reason why it cannot remain consistently with the passage in the judgment of Callaway, J.A. to which I have referred. It did provide an opportunity to Mr O'Neill to proffer an explanation if he chose to do so, and he did, and in my view there is nothing about that which is inconsistent with the decision of the High Court."[9]

Callaway, J.A. was not, in that passage, addressing the question of the admissibility of the evidence in Arundel, either generally or in the particular circumstances of that case, but rather, the significance of the introduction of two impugned questions and three non-incriminatory answers into the trial when considering the possibility that a miscarriage of justice may have occurred. He drew attention to the concerns that underpinned the decision of the High Court in Palmer[10], namely, first, the possibility that the failure of an accused to proffer some explanation as to why a complaint may have been made might be accepted by the jury as providing support for its truth and, second, the related potential for diminution of the burden and standard of proof implicit in the subtle suggestion of an obligation to provide such an explanation. In Palmer the Court said:

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. ... But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie...."[11]

His Honour formed the view that, in the circumstances of the matter before the Court, neither of these concerns could be seen to arise. What Callaway, J.A. did not say was that evidence of the asking of a question of the "why would she lie" kind would be admissible in the course of a police interview in circumstances in which the question and answer possessed no probative value in the trial. Nor did he say or imply that evidence that the police proffered to an accused the opportunity to provide an explanation of the possible motives for the making of a complaint against him of itself possesses any such value. At no stage in the present matter did the prosecutor advance any basis for the admission of the evidence as relevant to any issue before the jury. As Callinan, J. pointed out in Graham v. R:

"... questions of the kind asked could quite properly be asked by the investigating police officers as part of the investigative process. That the police officers might do so may be accepted. However, that the police officers may have asked such questions provides no basis for the introduction of this issue into evidence at the trial." [12]

The possible motivation which may have induced a complainant to make a false allegation against an individual would naturally be the subject of attention by a careful investigator who was contemplating the laying of serious charges. In some circumstances, that matter might well be the subject of inquiry in the course of an interview with the person against whom the allegation is made. It is, I think, beyond argument that in many situations the members of a jury consider this question in making their assessment of the credibility and reliability of the complainant's evidence. As I have pointed out, those are not the processes with which the High Court was concerned in Palmer. Question 76 and the answer provided by the applicant were not admissible in the present case, simply because this evidence possessed no probative value whatever.

The question then arises, as it did in Arundel, whether their admission created a realistic potential for a miscarriage of justice in the circumstances. In my opinion the answer to that question is "No" and for similar reasons to those given by Callaway, J.A. The prosecutor asked no questions about that subject in the course of his cross-examination of the accused, and made no comment or submission to the jury about it. No complaint has been advanced concerning the adequacy or correctness of his Honour's charge on the onus and standard of proof. There is no reason to suppose that the jury may have misunderstood the position or applied the impermissible method of reasoning to which Palmer was directed. When regard is had to the totality of the evidence before the Court I am far from persuaded that the applicant's prospects of acquittal have in any significant respect been impeded by the incorrect admission of this evidence.

Prior to the opening of the case before the jury, counsel for the applicant sought leave, pursuant to s.37A of the Evidence Act, to cross-examine L in relation to sexual activity in which, it was claimed, she engaged with another person.

"(1) Notwithstanding anything in this or any other Act or any rule of law to the contrary the following Rules shall apply in relation to any proceeding, including a committal proceeding, that relates to a charge for a sexual offence, whether or not the proceeding relates to any other charges against the same or any other person and whether or not it is alleged that there are aggravating circumstances: (1) The court shall forbid any question as to and shall not receive evidence of the general reputation of the complainant with respect to chastity. (2) Without the leave of the court - (a) the complainant shall not be cross-examined as to his or her sexual activities; and (b) no evidence shall be admitted as to the sexual activities of the complainant. (3) The court shall not grant leave under Rule (2) unless - (a) it is satisfied that the evidence has substantial relevance to facts in issue or is proper matter for cross-examination as to credit; ... (4) Evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities shall not be regarded- (a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or (b) as being proper matter for cross-examination as to credit in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant. (5) An application for leave under Rule (2)- (aa) must, in the case of an application to cross-examine the complainant as to his or her sexual activities- (i) be in writing and given to the Director of Public Prosecutions and, ...

...

(B) in the case of a trial, at least 14 days before the date fixed by the Criminal Trial Listing Directorate as the date on which the trial is to be listed for hearing; (ii) set out- (A) the initial questions sought to be asked of the complainant; and (B) the scope of the questioning sought to flow from the initial questioning; and (C) how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit;

...

(c) shall not be granted unless the court considers that the requirements of Rules (3) and (4) are satisfied but in that case may be granted provided that the court considers it desirable in the interests of justice so to do. (5A) The Director of Public Prosecutions must forward an application referred to in Rule (5)(aa) given to the Director of Public Prosecutions under that Rule-

...

(b) in the case of a trial, to the Criminal Trial Listing Directorate together with the copy of the presentment required to be forwarded to that Directorate. (5B) Nothing in Rule (5) or (5A) prevents a court, because of the existence of exceptional circumstances, hearing and determining an application to cross-examine the complainant as to his or her sexual activities that is made after the expiry of the period referred to in Rule (5)(aa)(i). (5C) Despite anything to the contrary in Rule (5), the court may, because of the existence of exceptional circumstances, waive the requirement that an application to cross-examine the complainant as to his or her sexual activities be made in writing. (6) If the court grants leave under Rule (2) it- (a) must state in writing the reasons for granting leave; and (b) cause those reasons to be entered in the records of the court."

There was evidence given at the committal hearing which suggested that shortly before L attained the age of 16 years, she was confronted by her mother with the accusation that she had engaged in sexual intercourse with a 28 year old man with whom her mother had also been involved, and that she responded, "Craig did it too". Counsel submitted to the trial judge that he should be able to pursue this topic in cross-examination.

There were clearly two aspects concerning this application for leave that troubled the trial judge. The first related to the requirements of s.37A(1) Rule (3)(a) and the second to the provisions of Rule (5).

As to the requirements of s.37A(1) Rule (3)(a), there were two possible justifications for cross-examination of the complainant which were made relevant. It must either be relevant to a fact in issue or be a proper matter going to credit. With respect to the former, his Honour understandably expressed difficulty in perceiving what relevance, substantial or otherwise, the evidence might conceivably possess to any fact in issue in the proceeding. As he pointed out, the conduct about which the complainant's mother was concerned, if it occurred, was engaged in approximately four years after the relevant events were said to have taken place and could in no way be related to them. This aspect was not pursued by counsel.

Concerning the use of the evidence as proper matter for cross-examination as to credit, counsel for the applicant submitted that:

"... the accused man, if he so decides through his counsel, is entitled to explore what he says are the circumstances behind the false complaint, and if a false complaint has been made as response to another accusation in an attempt to perhaps shift the blame or shift attention in response to another accusation, that's a matter that he is entitled to explore particularly if that Question 76 remains in the interview."[13]

For present purposes, it can be accepted that an argument could be developed to the general effect that, for some reason arising out of the relationship between L and her mother, when confronted with the assertion that she had engaged in sexual activity with one person, L responded with a statement that she had been interfered with by another partner of her mother, some four years earlier. She may have wished, for example, to induce a sense of guilt in her mother, to cause her distress or to demean her mother's relationship. The possibilities, whilst not endless, are many and speculative. However, I fail to see how the fact that her initial complaint was made in such circumstances could be perceived as "being likely to materially impair confidence in the reliability" of evidence given a long time afterwards. On one view, the making of a spontaneous outburst of that kind could well be viewed as enhancing the credibility of the allegation rather than diminishing it and, of course, the possible linkage of an angry response to her mother and the making of a formal complaint four years later is, at best, tenuous. Nevertheless, his Honour accepted that "it may be that the credit of the complainant could be attacked in the manner sought by [counsel] if leave was granted". Although he did not express any view as to whether such an attack possessed any substantial potential to impact on the complainant's credit, it seems likely from the tenor of his remarks that he was doubtful that any serious criticism of her reliability could be made on that basis. In my view, a grant of leave to cross-examine would not have been appropriate in the circumstances.

As neither of the possible justifications for the cross-examination of the complainant can be seen to have existed in this case, the proper exercise of the discretion reposed on the trial judge under s.37A required the rejection of the application.

As I have indicated, however, his Honour did not exclude the possibility that a grant of leave might be justified on the basis that the matters to be raised in the proposed cross-examination could impact materially upon the complainant's credit. In that situation, the requirements of s.37A Rule (5) not having been satisfied, he directed attention to Rules (5B) and (5C). This involved consideration (inter alia) of the question whether the applicant could point to any `exceptional circumstances' that would justify the grant of the application. In this context, he remarked:

"Since s.37A was first introduced there has been concern in the community that the provision and its interpretation was not affording victims of sexual assault with the protection that was desired. Accordingly, amendments to s.37A embodied in the Crimes Amendment Bill were introduced by the Attorney General. In her Second Reading Speech the Honourable Jan Wade, the then Attorney, made reference to the history and purpose of the section and the amendments then being made. On 9 October 1997 Hansard 429-430 the Attorney stated: 'The purpose of the amendment is to stop prohibited questioning taking place by ensuring that well in advance of the proceeding all parties turn their minds to the issues and relevance of prior sexual history and the scope of any proposed questioning. This will reinforce the importance of complying with the provisions and filter out improper questioning.' It is clear by reference to the Second Reading Speech that time was an important component in the legislative scheme which is embodied in s.37A."[14]

The public policy considerations which led to the introduction of Rule (5) are apparent from the Minister's speech. Their importance in the view of the legislature is reinforced by the inclusion of provisions to ensure that only "in exceptional circumstances" will non-compliance with the general requirements be excused. It is also important to bear in mind that it is a prerequisite to a grant of leave that the test set out in s.37A Rule (3) is satisfied. Satisfaction of that test does not necessarily result in satisfaction of the test under Rule (5). Obviously the opportunity to explore a matter of some potential importance in the trial, whether related to a fact in issue or the credit of a complainant, must weigh heavily when considering whether "exceptional circumstances" are seen to be present, in order to ensure that a fair trial is conducted.

"No plausible or satisfactory explanation has been provided to explain why the section was not, or could not have been complied with. I do not accept that the late briefing of [counsel] constitutes exceptional circumstances, where Mr O'Neill has at all times relevant been legally represented."[15]

"The expression 'exceptional circumstances" with which s.37A(1) rules 5B and 5C are concerned have been used in various legislation for many years. Courts have consistently refrained from and cautioned against attempting to define what constitutes exceptional circumstances, preferring to consider the facts and the circumstances of each case:" "In my view the relevant facts and circumstances here include any explanation for the failure to make the application within the time specified and to provide the written particulars specified. That is the procedural requirement. It is also appropriate to look at other aspects of the trial to determine whether they give rise to exceptional circumstances."[16]

In drawing a distinction between what he referred to as the "procedural requirement" and the "other aspects of the trial" in this context, it is apparent that his Honour was conscious of his obligation to ensure that a fair trial was conducted and that the exercise of the discretion reposed in him did not result in a miscarriage of justice.

It has not been demonstrated that his Honour fell into error with respect to the interpretation of the expression "exceptional circumstances" in Rules (5) and (6), that he had regard to some irrelevant consideration or failed to take into account some relevant consideration in the exercise of his discretion. The conclusion at which he arrived does not of itself manifest error in the circumstances.

In any event, for the reasons that I have earlier given, I consider that the proper exercise of the discretion would have resulted in the rejection of the application to cross-examine, even if the appropriate steps had been undertaken within the statutory time frame.

Shortly put, there were no exceptional circumstances arising from the subject matter of the proposed cross-examination or the circumstances in which the statement attributed to L was allegedly made which could enliven the discretion in this case.

This ground raises the assertion that each of the verdicts of guilty returned against the applicant must be regarded as unsafe and unsatisfactory.

The principles to be applied by an appellate court considering such a claim set out by the High Court in R. v. M.:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[17]

...

...where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." [18]

"That function is not discharged merely by a consideration of whether there was a sufficiency of evidence to sustain a conviction, for it is clear that a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict. So much is clear from the following passage in the joint judgment of Gibbs C.J. and Mason J. in Chamberlain (No.2)[footnote omitted]: `In Raspor v. The Queen and Plomp v. The Queen, it was recognized that a court of criminal appeal may interfere with a verdict which is unsafe or unsatisfactory even if there is sufficient evidence to support it as a matter of law, and even though there has been no misdirection, erroneous reception or rejection of evidence, and no other complaint as to the course of the trial. In other words, even if there is some evidence on which a reasonable jury might be entitled to convict, a Court of Criminal Appeal has the responsibility to consider whether "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand": Hayes v. The Queen.' A Court of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality."[19]

In the present matter, reliance has been placed upon:

* claimed inconsistencies between the evidence given by the complainant at the trial and that given by her at the committal hearing (counts 2, 4 and 5);

* claimed inconsistencies between the complainant's statement made to the police and her evidence at trial;

* an absence of evidence as to the circumstances in which the offence could have been committed (count 1);

* lack of detail as to the circumstances in which the offence was alleged to have been committed (count 4);

Counsel for the applicant in his submissions emphasised that the significance of these features had to be assessed in a case in which the evidence of the commission of the various offences by his client came solely from the complainant; the offending had allegedly taken place 10 years prior to trial and no complaint was made for a substantial period thereafter; a Longman[20] instruction was given to the jury; and, finally, bearing in mind that the applicant had maintained his innocence throughout.

I do not think that I need set out the detail of the various matters to which our attention was directed in this context. Most of them have either been mentioned briefly in my summary of the evidence given in the trial or are apparent from that summary. The fact that inconsistencies and discrepancies can be detected between the versions of events given by the same person at different times and under different circumstances may say much or very little about the accuracy, honesty or general reliability of the narrative or narrator. In my experience, it is seldom that some differences cannot be found when evidence is examined. This is simply a function of human fallibility to be taken into account by the jury in their assessment of the value to be placed on the evidence given before them.

Counsel for the Crown submitted that the differences upon which reliance was placed by the applicant were "unremarkable in this type of case and would not of themselves necessarily lead to an acquittal." It is apparent upon perusal of the material before the Court that there were inconsistencies between the statement of the complainant, her evidence at the committal hearing and her evidence at the trial. All were brought to the jury's attention and none were of a kind that, in my opinion, could reasonably engender any sense of unease with respect to the verdicts on the respective counts. They were, as counsel for the Crown contended, "unremarkable". No complaint has been made concerning the trial judge's directions with respect to any of them. Appropriate instructions of the Longman kind were given and there is no reason to suppose that the jury might have misunderstood or failed to give full effect to them. His charge on the onus and standard of proof was conventional and appropriate.

Clearly it does not follow that, by reason of failure of the prosecution to satisfy the jury beyond reasonable doubt that the applicant was guilty on count 3, a different finding on any one of the other counts should be regarded as unsafe and unsatisfactory. No argument has been advanced before us to the effect that there is inconsistency between the acquittal of the applicant on count 3 and his conviction on the remaining counts of any of the kinds discussed in R. v. Nanette[21] by McInerney, J., who stated:

"The first ground argued was that the verdict of `not guilty' on counts 1 and 5 are inconsistent with the verdicts of `guilty' on the other counts. It was not argued that the verdicts were legally or technically inconsistent with each other on the face of the record, such as the conspiracy verdicts referred to in R. v. Mitchell, or a conviction both of an attempt and of the completed offence (R. v. Roach), or of being both the thief and receiver: see also R. v. Whelan. The inconsistency here relied on is the second kind of inconsistency in which the applicant must contend and satisfy the Court that there is such inconsistency in the verdicts that no case could have arrived at the two different conclusions at which they did:" [22] (Citations omitted)

Nevertheless, counsel for the applicant contended, it is difficult to see how the different outcomes in the trial can be reconciled as, for practical purposes, the evidence against his client on each count came from the same single source. This should, it was said, produce a sense of disquiet and, taken in conjunction with the other matters to which I have adverted, lead to the conclusion that the verdicts of guilty must be regarded as unsafe and unsatisfactory.

There were, it seems to me, a number of problems associated with the evidence of the complainant in respect of count 3. Although she purported to recall the detail of the claimed incident with reasonable clarity, her own evidence indicated that she was unreliable in more than one significant respect. She claimed that her mother and the other children had gone to collect firewood when, according to her evidence, they did not have a wood fire during the period that he resided with the family. She was also unable to recall whether the incident took place during the day or night or on a weekday or during a weekend. There were variations between her description of the incident in her police statement and evidence as to the manner in which her pants were removed and the effecting of penetration. Against that background, the jury may well have had some reservations about her evidence on the only count that involved penile/vaginal penetration.

However, this acquittal carries no necessary implications as far as the convictions on the other counts are concerned and certainly none which would not have been apparent to the jury. They were instructed to consider each count separately and to return the verdict which was appropriate to that count. Their arrival at different outcomes on the counts, in the absence of any logical or legal inconsistency or good reason for holding otherwise, must be taken to reflect their adherence to that instruction. In R. v. Kirkman[23], King, C.J. drew attention to the care which must be exercised before an appellate court sets aside verdicts.

"... which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information."[24]

After undertaking the necessary review of the evidence, I do not consider that the convictions in this case are to be regarded as unsafe or unsatisfactory.

[6] T47. This misunderstanding may possibly have arisen from the statement in paragraph (6) of the headnote in Arundel "By Charles and Callaway, JJ.A. The questions in the record of interview about the complainant's motive to lie were not improperly admitted." This statement is incorrect and does not reflect what appears in the judgment at [62].

[7] Portion of the answer was excluded for unrelated reasons.

[12] [1998] HCA 61; (1998) 195 C.L.R. 606 at [43] per Brennan, C.J., Gaudron and Gummow, JJ.

[19] Morris v. The Queen [1987] HCA 50; (1987) 163 C.L.R. 454 at 473 per Deane, Toohey and Gaudron, JJ.

[21] That case concerned a number of allegations of the commission of sexual offences against a single complainant and depended in large measure upon the acceptance of her evidence by the jury.

[22] R. v. Nanette [1982] VicRp 8; [1982] V.R. 81 at 83. See also the cases there cited by his Honour; R. v. Jukov Court of Appeal, unreported, 7 December 1995; R. v. Harvey [1997] 2 V.R. 121.

Criminal Law - Conviction - Indecent act with child under 16 years - Incest - Exclusion of evidence - Section 37A Evidence Act - No exceptional circumstances present under Rule (5) - Evidence of police questioning as to possible motive of complainant - No miscarriage of justice - Decision of Callaway, J.A. in R v Arundel [1998] VSCA 102; [1999] 2 V.R. 228 considered - Grant of leave to cross-examine complainant not appropriate in the circumstances - Whether guilty verdicts regarded as unsafe and unsatisfactory - R v M [1994] HCA 63; (1994) 181 C.L.R. 487 - Longman warning given - Application dismissed.

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