Tukuafu v The Queen [2014] VSCA 345

CRIMINAL LAW - Trial - Jury directions - Unreliable witnesses - Defence counsel requested warning - Jury directed to assess reliability and weight - No error - Jury Directions Act 2013 ss 11, 14, 15; Evidence Act 2008 s 165.

1 Following a trial by jury in the County Court, the appellant was convicted of four charges of incest. He was acquitted on one charge of incest, and the jury were unable to reach a verdict on two further charges of incest and one charge of an indecent act with a child under the age of 16. He was sentenced as follows:

Forensic Sample under s 464ZF(2) of the Crimes Act 1958; Registered with

a reporting period of life pursuant to s 34 of the Sex Offenders Registration Act 2004.

2 A judge of this Court granted the appellant leave to appeal against his conviction on the following grounds:

1. That the guilty verdict on Charge 2 is inconsistent with the jury's failure to reach a verdict on Charges 3, 5, and 7, and the not guilty verdict on charge 6.
2. That the guilty verdict on Charge 2 is unsafe and unsatisfactory given the nature of the evidence given in relation to that Charge, and its relationship to the evidence given regarding Charges 3, 5, 6 and 7.
3. That the guilty verdict on Charge 8 is inconsistent with the jury's not guilty verdict on charge 6, and failure to reach a verdict on Charges 3, 5, and 7.
4. That the guilty verdict on Charge 8 is unsafe and unsatisfactory given the nature of the evidence given in relation to that Charge, and its relationship to the evidence given regarding Charges 3, 5, 6 and 7.

3 The appellant has elected to renew his application for leave to appeal on the following ground, upon which leave was refused:

1. The Learned Trial Judge erred in directing the Jury that it was a matter for them as to what weight that could accord to:

(a) the evidence of a witness that they found to be unreliable either in the totality of their evidence or part of their evidence; and

(b) anything in the evidence they found to be unreliable.

4 For the reasons that follow, we would dismiss the appeal.

5 At the time of the offending, between 2009 and 2011, the appellant was the step-father of the complainant, EO. The appellant met and commenced a relationship with the complainant's mother, CO, in 2001. They began living together shortly afterwards, at which time EO was four years old. The appellant and CO had four children together. They are now separated.

6 Following alleged violence by the appellant towards EO, she went to live with her maternal grandparents, remaining there for a period of approximately five years. When she was about 11 years old, EO returned to live with the appellant, CO and her step-siblings. Soon after her return, the appellant commenced regularly hugging EO for five to 10 minute periods. The appellant and CO married in May 2008. The family moved to new premises in August 2009. At this time, EO was 12 years old. After the move, the appellant began regularly engaging in sexual acts with her, including hugging, kissing, touching her bottom, touching her breasts and penetrating her mouth with his penis. These acts were uncharged and were adduced as tendency evidence.

7 The eight charges on the indictment arose out of six separate incidents described by EO. The incidents were each said to have taken place between 14 November 2009 and 9 January 2011, during which period the appellant was 26 to 27 years old and EO was 13 to 14 years old.

8 In the first incident, the appellant and EO had been watching a movie in the studio of the appellant's house while the other children were asleep. After EO went to bed, the appellant woke her, took her to the studio and penetrated her vagina with his penis. This constituted charge 1, upon which the appellant was convicted.

9 In the second incident, one or two months later, the appellant told EO to go to his bedroom, where the appellant penetrated EO's vagina with his penis. This constituted charge 2, upon which the appellant was convicted. In the same incident, the appellant was said to have made EO perform oral sex on him. This constituted charge 3, in respect of which the jury was unable to reach a verdict.

10 In the third incident, the appellant penetrated EO's vagina with his penis. The appellant did not wear a condom. Afterwards, he was concerned that EO had 'sticky stuff down there' and told her to have a shower. This constituted charge 4, upon which the appellant was convicted.

11 In the fourth incident, it was said that the appellant told EO to come to his bathroom and have a shower, and that while EO was showering the appellant came in and washed EO around her legs, bottom and breasts. After the shower, the appellant dried EO over her whole body. This constituted charge 5, in respect of which the jury was unable to reach a verdict.

12 There were two occasions on which the appellant was said by EO to have penetrated her anus with his penis. In the first of these, being the fifth incident, the appellant took EO into his bedroom at night and penetrated her vagina with his penis (charge 6, upon which the appellant was acquitted) and then her anus (charge 7, in respect of which the jury was unable to reach a verdict). EO said that this hurt a lot and that it made her cry.

13 Finally, in the sixth incident, the appellant went into EO's bedroom late at night, woke her up and took her to the studio. He laid her on a blanket which he had put on the floor and then penetrated her anus with his penis five times. This constituted charge 8, upon which the appellant was convicted.

14 At the trial, EO's mother, EO's aunt and a friend of a similar age to EO each gave evidence that EO had told them that the appellant had sexually abused her. However, the Crown case relied substantially upon the evidence of EO. The defence did not call any evidence.

15 Grounds 2-5 in this appeal are each directed to the purported unreliability of EO's evidence. Briefly, the process by which she gave that evidence was as follows.

16 As is typical for victims in this type of offending, EO gave her account of the alleged offending in a pre-trial VARE. The VARE took place over two sessions. In the first session, EO gave a relatively uninterrupted lengthy narrative. In the second, EO answered questions from the interviewing police officer. At the time of the VARE, EO was 15 years old.

17 The trial took place approximately a year after the recording of the VARE. The VARE constituted EO's evidence-in-chief. In accordance with the usual procedure,[3] EO was cross-examined by video link in a special hearing at the commencement of the trial.

18 During the course of the jury's deliberations, the jury were instructed that they could return a majority verdict. They returned a verdict of guilty on charges 1, 2 and 4 by a majority and were unanimous as to charge 8.

19 At the request of counsel at the oral hearing, recordings of EO's VARE and cross-examination were viewed by this Court.

Conflation of grounds alleging inconsistency and grounds alleging verdicts were unsafe and unsatisfactory

20 Grounds 2 and 4 allege inconsistency of verdicts. They stand or fall as discrete complaints. They do not constitute particulars of the unsafe and unsatisfactory grounds, 3 and 5. In MG v The Queen,[4] this Court (Warren CJ, Neave and Redlich JJA) said:

Where the real complaint is that the verdict is inconsistent with an acquittal on another count, it should be the subject of a discrete ground. If a claim of inconsistent verdicts cannot be sustained, the verdict of acquittal will not ordinarily advance the argument that the guilty verdict was unsafe or unsatisfactory.[5]

21 The appellant in his written case argued these two grounds together. Again, in oral submissions, he largely conflated the complaint of inconsistency of verdicts with the submissions that the verdicts were unsafe and unsatisfactory. The reasons the jury have for reaching a decision on a particular charge may of course be relevant to their determination on another charge. And where inconsistency of verdicts is alleged on appeal and the court concludes that there are obvious rational reasons why the jury arrived at their different verdicts, those reasons may be taken into account by this Court when considering whether a particular verdict is unsafe or unsatisfactory. We have for that reason, and for reasons of convenience, dealt with the grounds together.

22 For the reasons that follow, the complaint of inconsistency of verdicts is not made out. If there be no inconsistency between the verdicts or disagreement by the jury, those complaints cannot advance the question whether the verdicts on charges 2 and 8 are unsafe and unsatisfactory. That question must be answered by an evaluation of the evidence, in order to determine whether the jury were obliged to have a reasonable doubt.

The conviction on charge 2 - Grounds 2 and 3 - Verdicts inconsistent and unsafe and unsatisfactory

23 Under these grounds, the appellant challenges his conviction on charge 2. The appellant argues that the guilty verdict is unsafe and unsatisfactory and that the verdict is inconsistent with the jury's failure to reach a verdict on charges 3, 5 and 7 and his acquittal on charge 6.

24 The relevant principles for the assessment of a submission that verdicts are inconsistent were set out in R v MacKenzie.[6] Gaudron, Gummow and Kirby JJ, in their joint reasons, said that 'the test is one of logic and reasonableness'.[7] They said:

[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.

...

[A] residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'.[8]

25 A failure to reach a verdict should not be equated with an acquittal. All that can be said when a jury does not reach a verdict is that one or more of the jurors were unable to conclude that the accused was guilty. There is no 'verdict' as such. As Callinan J said in Osland v The Queen: [9]

There is an important distinction between an acquittal and a disagreement by a jury. As was pointed out during argument in this Court the jury may have simply been immovably divided on a question whether Mr Albion should be convicted of manslaughter or murder having regard to his lesser involvement in conceiving, planning and executing the death of Mr Osland. I do not accept that the jury's failure to agree upon a verdict in relation to Mr Albion at the joint trial can be regarded as repugnant to the verdict of guilt in respect of the appellant. I cannot accept therefore the appellant's submission that such a disagreement may, for the purposes of determining an issue of inconsistency, be equated with a verdict of acquittal.[10]

26 Recently, in Pillay v The Queen,[11] this Court determined that a jury's failure to reach a verdict could give rise to an inconsistency with a verdict of guilty. The failure to reach a verdict gave rise to the question whether there could be any explanation for the outcome of the jury's deliberations 'apart from some form of irrational and improper compromise'.[12] The Court in Pillay concluded that it was not rational for the jury to have found consent not to be present in relation to an indecent assault charge but to have failed to reach unanimity on the same issue with respect to rape charges.

27 The appropriate inference to be drawn from the jury's failure to reach a verdict with respect to a particular charge is to be determined according to the circumstances of the particular case. In R v DAL,[13] Keane JA (McMurdo P agreeing) made the following observations:

The failure by the jury to agree on verdicts on a number of charges in the present case, for example, may well be explicable by reason of the eccentric view of one juror not being satisfied beyond reasonable doubt of all the elements of the offence in question. Such an explanation does not necessarily throw the integrity of the guilty verdicts into question because it does not imply that the jury as a whole entertained a reasonable doubt about the reliability of evidence germane to the counts on which it convicted in the same way that a verdict of acquittal might have done. It is only if an appellate court is satisfied that a jury must have convicted in spite of such doubts that it must intervene.[14]

28 In Avery v The Queen,[15] Warren CJ and Redlich JA made observations to similar effect:

Contrary to the applicant's submission, verdicts of not guilty or disagreement on the balance of the charges on the indictment do not necessarily reflect a view by the jury that the complainant was untruthful or unreliable, such that this Court should assess the reasonableness of the three guilty verdicts on the basis that the complainant was a person of damaged credibility. Credit is not a homogeneous and indivisible whole. It simply does not follow that because the jury, or some of them, had a reasonable doubt as to the evidence the subject of the charges other than those upon which a guilty verdict was returned, that it should have had a doubt about the evidence of the complainant on Charges 10, 11 and 12. As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen, a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or demonstrate a want of confidence in the complainant. A verdict of not guilty or a disagreement by the jury may reflect no more than a cautious approach to the discharge of its heavy responsibility. That caution might be attributed to the absence of supporting evidence or detail in the complainant's account, some level of uncertainty, a faulty recollection, a contrast in different parts of the account that suggest that parts of it are more reliable than others, or to the jury thinking that although a number of offences had been alleged, justice was met by convicting the applicant on some only.[16]

29 Turning to the present case, we are not persuaded that the appellant's arguments satisfy the high threshold to make out inconsistency between the verdict on charge 2 and the outcome on other charges.

(i) Inconsistency with jury disagreement on charge 3

30 The appellant first says that the conviction on charge 2 was inconsistent with the jury's inability to reach a verdict on charge 3. The acts giving rise to charges 2 and 3 were part of the same incident, it being alleged that the appellant made EO perform oral sex upon him (charge 3) and then penetrated her vagina with his penis (charge 2). The appellant argues that there was no logical and reasonable way that the jury could have arrived at their different states of satisfaction with respect to charges 2 and 3. The appellant's submission proceeds on the mistaken premise that the evidence of EO as to the acts constituting charges 2 and 3 could not explain the different views held by one or more jurors as to those acts.

31 In her VARE, which constituted her evidence-in-chief, EO gave two descriptions of the incident giving rise to charges 2 and 3, which she described as the second time she had vaginal sex with the appellant. On the first occasion, her description was brief. In a continuation of her narrative, she stated:

A: And after a while he started sexual intercourse again. I think the second time I was in -

Q: Just -

A: I think the second time was in, the second time was in my parents' bedroom.

Q: Yep. What happened there?

A: I had to give him oral and then after that it was sexual intercourse -

Q: Mm'hm.

A: - but if my mum, if he had sent my mum out to the shops while it was happening I'd always have to keep an ear out to listen if we heard the car come back -

32 On the second occasion that she described this incident in her VARE, the interviewing police officer sought further details of the incident. EO did not mention the oral sex said to have preceded the vaginal penetration but gave a significantly detailed account of the vaginal sex:

Q: OK. All right. We spoke about the first time you said about the, the sex.

A: Yeah.

Q: OK. And you told me before there was a second time in your parents' bedroom.

A: OK.

Q: Tell me everything about that one, that time.

A: That time I had a bit more of an idea what was going on. It still didn't really help me to stop it though.

Q: Mm'hm.

A: But same thing, he, he's put his penis in my vagina.

Q: Hm'hm.

A: And yeah, it still hurt and he still didn't listen, he still, he kept, he still kept putting his penis in my vagina even after I told him that it was still hurting and he, he kept saying just to relax and that he knows it hurts and that it usually will at first ...

Q: Mm'hm.

A: - but if I relax it should stop after a while. I couldn't and I still started to cry and so he stopped after he realised that I wouldn't relax 'cause I was still getting too upset.

Q: So how long after the first time was that time?

A: That was probably a month or two.

Q: And what, you were in your, whereabouts were you?

A: The second time?

Q: Yeah.

A: In the bedroom.

Q: And where were you in the bedroom?

A: On the bed.

Q: OK. And do you remember what time of the day it would have been?

A: This one was in the afternoon so it was either on the holidays or on the weekend but it was 2 o'clock, 3 o'clock in the afternoon and mum was out and the kids were hanging in the bedroom.

Q: Bedroom?

A: Yeah, the one across from the lounge room 'cause they had toys, lots of toys.

Q: Yeah.

A: So, and when they're told, when he tells them to do something they listen and, they have to 'cause they're scared of him.

Q: Mm'hm.

A: And they have my, the two older boys, [J] and [S] had to make sure that [N] and little [S] didn't go out of the bedroom.

Q: Little who?

A: [S].

Q: Is that -

A: Or little [J], the baby.

Q: The, yeah.

A: Yeah. They had to make sure that they didn't go out of the bedroom, if they did then they would get into big trouble.

Q: So how did this time finish?

A: Same thing, I was allowed to go and have a shower again.

Q: Mm'hm.

A: But he wanted to talk to me after I had a shower so I went and had a shower.

Q: Mm'hm.

A: And after the shower I was dawdling so I was just checking up on the kids, making sure that they're OK and then saying that I need to go to the toilet and just standing in the toilet for a while.

Q: Mm'hm.

A: And then I'd got to wash my hands and then take my time going to the bedroom.

Q: Mm.

A: So when I got there he was just telling me that it's going to keep hurting unless I, I, until after a while and then it should stop and then he was explaining that there's a skin that needs to be broken or something.

Q: OK.

A: And it was confusing a bit as I, I, at first I didn't understand what he was going on about. So he would just keep telling me that if, if I, if I get over the pain it should stop hurting after a while.

Q: How did that make you feel when he was -

A: It made me feel really uncomfortable.

Q: Why was that?

A: Because I didn't want to do it in the first place.

Q: Mm.

A: And I didn't like him talking about it.

Q: Did you say anything to him then?

A: Uh'uh.

Q: Why not?

A: Why didn't I say anything?

Q: Yeah.

A: Why I felt uncomfortable?

Q: Yeah.

A: I mean, that I felt uncomfortable?

Q: Yeah.

A: I was too scared.

Q: Yeah.

A: And I knew that if I did say it he'd either get angry at me or he'd start seeing that being silly and that, I need to stop acting like that.

Q: OK. So that time in your parents' bedroom, did he wear a condom?

A: Yeah.

Q: Where did he get his condoms from?

A: From the chemist. He got my mum to get it.

Q: Where would he keep them in the house?

A: In his drawer, his side table.

Q: Do you know -

A: In his side table under the sink in his bathroom.

Q: Mm.

A: That he shared with my mum.

Q: Do you know what type they were?

A: I don't know what they're called but I do know what it looks like if I ever saw it.

Q: Tell me what it looks like.

A: It was a bit blue -

Q: Yeah.

A: - and yeah, it had a man and a woman on it.

Q: Mm.

A: And I don't know the details on it.

Q: OK. Is there anything else about that time?

A: Nuh.

33 The complainant gave a detailed account of the act constituting charge 2 but had said very little in relation to charge 3. That fact alone is sufficient to explain the jury's differentiation between the charges.

34 Counsel for the appellant also pointed to the question that led to EO's expansive description when she referred to the vaginal sex in her VARE. It was said to be a leading question, which required EO for the second time to describe only the vaginal sex. This criticism of the questioning is not justified. In Martin v The Queen,[17] it was said of such questioning in a VARE:

Once a complainant's allegations have been voluntarily made, the investigator will usually need to identify and substantiate the allegations with more particularity. Direct questioning that reminds a child of an allegation already made voluntarily does not constitute a leading question. In that context it is to be expected that the nature of the questioning will at some points take on a more direct approach, particularly in seeking to amplify allegations to which the child has already adverted. Thus in SLJ v The Queen, further evidence of certain allegations was elicited at the prompting of the police interviewer during the VATE. No criticism could validly be made of those questions, where the allegations had already been voluntarily made by the complainant and the interviewer was seeking clarification of the nature and circumstances of the allegation.[18]

35 The questioner asked EO to return to her account of the vaginal sex. The form of the question may explain why EO did not return to the allegation of oral sex. Moreover, the particular details she gave - that the appellant wore a condom, that he told her that it would usually hurt at first, that it would stop hurting if she relaxed and that there was 'a skin that needed to be broken or something' - gave the evidence in respect of the vaginal sex a ring of verisimilitude.

36 As charge 3 concerned an allegation of oral sex, there was a further possible basis upon which some jurors may have differentiated between charges 2 and 3. EO testified that the appellant would make her perform oral sex regularly. Her descriptions of the oral sex were detailed and vivid. In her VARE, EO said that she was not sure when she first performed oral sex on the appellant, but said that, in the time between her first period and the first occasion of intercourse, it would happen two to three times a week. In cross-examination, EO said that she could not recall a particular time that the appellant had placed his penis in her mouth before the first incident of vaginal penetration. One or more jurors could rationally have concluded that the paucity of evidence in respect of charge 3 did not sufficiently distinguish it from other alleged occasions of oral sex.

37 There is no inconsistency between the verdict on charge 2 and the jury's inability to reach a verdict on charge 3.

(ii) Inconsistency with disagreement of jury on charges 5 and 7 and acquittal on charge 6

38 The appellant says further that the conviction on charge 2 was inconsistent with the jury's inability to reach a verdict on charge 5 and 7 and the acquittal on charge 6.

39 The refusal by the jury to convict the appellant on charge 3, 5 or 7 may well have been founded on a rigorous examination of the evidence before the jury and an assessment of the reliability of EO's account with respect to particular charges. Indeed, the fact that a jury delivers different verdicts on related charges may be a sign that a jury is diligent, not that it is engaging in any impermissible compromise or illegitimate reasoning. The jury were properly instructed that they had the right to accept parts of the complainant's evidence and to reject other parts.[19] Different verdicts may have been explicable by the jury having taken a 'merciful' view of the facts.[20] The jury could properly have distinguished between EO's evidence on charge 2 and her evidence on the other charges.

40 The jury were unable to reach a verdict on charge 5. The evidence came solely from the VARE. There was no cross-examination in relation to the incident the subject of charge 5. Though the charge arose from a separate incident, the appellant contends that the jury's failure to reach a verdict demonstrates that the jury must have doubted the account given by the appellant in the VARE. This submission must fail.

41 First, the jury having been given a majority verdict direction, all that can be deduced from the disagreement is that two or more jurors were not prepared to convict on this charge. Second, although the detail of this incident may, as the respondent suggests, lack the same level of detail as other charges, there was ample evidence upon which the jury could have convicted. But in the context of EO's entire testimony and the manner in which she gave it, we consider it unlikely that the jury considered her account of this incident to lack credibility. Like the other aspects of her evidence-in-chief, there was nothing in its content or the manner in which the evidence was given which provided a basis for its rejection. At the same time, this charge plainly lacked the objective gravity of the incest charges involving sexual penetration. It had received no attention by the defence in the course of the special hearing, as the complainant was not cross-examined about the incident. Defence counsel did not see fit to address charge 5 at all in his closing address.

42 It has always been open to jurors to take a merciful view of the facts on which a particular charge rests. The role of the jury continues to be ameliorative in this respect where an innate sense of fairness and justice may be applied in place of strict principles of law. The following passage from the judgment of King CJ in R v Kirkman (with the concurrence of Olsson and O'Loughlin JJ) was cited with approval in the joint reasons of Gaudron, Gummow and Kirby JJ in Mackenzie:[21]

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.[22]

43 It was not an affront to logic and common sense for one or more jurors to have approached this charge in that way. It was open to them as a matter of fairness to have distinguished this charge from the incest charges as lacking that degree of criminality. The conduct involving washing and drying was also not unequivocal and unambiguous conduct in the same way as that the subject of the other charges.

44 Finally, in respect of charges 6 (acquittal) and 7 (failure to reach a verdict), the appellant submitted that as the jury must have doubted EO's account on these charges, they were bound to have a doubt about his guilt on charge 2. The appellant also submitted, for the same reasons, that the jury were bound to have a doubt with respect to charge 8. It is convenient to set out our reasons for rejecting these submissions when dealing with charge 8 under grounds 4 and 5.[23]

45 The appellant says that the verdict of guilty on charge 2 was unsafe on the basis that EO was unable to recall her evidence in cross-examination, which meant that the appellant could not test that evidence. He also relied upon the inconsistency in verdicts as demonstrating that the jury did not accept EO's account in her VARE, such that they could not therefore have been satisfied beyond reasonable doubt in respect of charge 2.

46 As we have explained, the argument as to inconsistency, once rejected, cannot advance the question whether the verdict was unsafe and unsatisfactory. At the same time, where this Court in dealing with an argument as to inconsistent verdicts concludes that there are obvious rational reasons why the jury arrived at their different verdicts, those reasons may be taken into account when considering whether a particular verdict is unsafe or unsatisfactory.

47 The appellant must demonstrate that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of his guilt on charge 2.[24] The question is whether the jury must, not might, have entertained a doubt about the appellant's guilt.[25]

48 We do not accept the appellant's contention that the jury were bound to have acquitted the appellant on this charge. EO's evidence in her VARE in respect of charge 2 is set out above. Her account of the conduct the subject of charge 2 was detailed and vivid. The gravamen of the appellant's complaint is that EO was unable to recall the incident in cross-examination on the special hearing. The relevant exchanges were as follows:

All right. I'll got [sic] onto the second occasion, can you remember the second occasion, when he placed his penis in your vagina?---I don't know.

As you sit here now, your memory's a blank about it, is it?---I'm not sure.

All right. At some stage do you think you had a memory about the second time that happened?---Yes.

But that memory's faded, has it?---Since I made my statement, yes.

Yes, all right. It's about a year ago that you made your statement, isn't it?---Yes.

Yes, and then, I suppose, you didn't see it for a - well, was it almost a year til you saw it again, was it?---Sorry?

Yes, sure. When you made your statement, you went to the police station, it's about August of last year?---Yes.

And you sat and answered questions, it was all videotaped, yes?---Sorry, I can't hear [you].

No, that's all right, I'll - I'm sorry, I dropped the voice. When you made your statement, you went to the police station - - - ?---Yes.

- - - and they videotaped you answering questions?---Yes.

Yes. When was the next time you saw the videotape?---Last week.

Last week, all right. So it's been a year since you - since you did it. That's a year between doing it and then next seeing it, is that what you're saying?---Yes. I don't know.

HER HONOUR: How many times have you seen the video of your statement?---Once.

Was that last Wednesday- - - ?---Yes.

- - - that you told us about?

[DEFENCE COUNSEL]: All right. And no one gave you a typed out version of it?---No.

All right. And the things that you've talked about in your statement, even though you saw the submission again last week - - - ?---Yes.

- - - the actual events are now not very clear in your memory, is that what you're saying?---Some of them, yes.

Some of them, yes, all right. And one of the ones that's unclear in your memory is the second time [the appellant] placed his penis in your vagina, is that right?---Yes.

49 The appellant relies upon the forensic disadvantage arising from EO's inability to recall her evidence in cross-examination. The appellant points to the fact that EO had viewed her VARE evidence in the week before her cross-examination. She thus had a recent opportunity to refresh her memory. Yet the appellant was denied the necessary opportunity to test her account.

50 It is undoubtedly true that an accused should have the opportunity to confront the evidence against him or her. The loss of that opportunity is a real disadvantage and it may, in particular circumstances, give rise to an argument as to whether the evidence should be admitted. In the present case, although there was some suggestion of unfairness in the procedure that was followed, the admissibility of the evidence of EO is not in issue in the present appeal.

51 Such questions have arisen in the context of the admissibility of evidence where a witness is unable to recall a relevant event and the party calling that witness seeks to introduce into evidence a record of the witness, which contains an earlier account by the witness of the relevant event. In R v Alexander,[26] two men convicted of robbery in company contended on appeal that evidence of a victim was improperly admitted into evidence, as the victim had acknowledged during cross-examination that the evidence he had given was not based upon a recollection of the relevant events but was the account he had provided to police in a statement half an hour after the incident. He testified that he believed what he said in the statement to be true.

52 The reasons of the Court (Young CJ, Newton and Kaye JJ) focused on whether it was necessary that the record relied upon by the witness with no independent recollection be produced. The Court held that such a document need not be produced unless production is requested by the opposite party.[27] Relevantly, the Court observed that the requirement that the original record be produced upon request was premised on the desirability to

prevent fraud or mistake arising out of fabrication of the alleged record, or from misstatement of its contents by the witness, and to enable an opposite party to have proper scope for cross-examination of the witness, and also to avoid mistakes arising out of the use of copies.[28]

53 However, the Court considered it to be 'well established by decided cases' that

a witness may properly give evidence of events of which he no longer has any independent recollection, simply by reference to some written record which he made or adopted shortly after those events occurred and at a time when he did recall them, provided that the witness is prepared to swear to the accuracy of the record.[29]

54 In Trade Practices Commission v TNT Management Pty Ltd,[30] a similar course was permitted by Franki J. The headnote adequately summarises the issue as follows:

A witness who was present at and who prepared contemporaneous draft minutes of meetings of a body which were later confirmed or amended and confirmed and signed by the chairman of the meeting had no independent recollection of who was present at each meeting and his memory was not refreshed by looking at the minute book of each of the meetings. The witness then gave evidence by reading who was said in the minutes to have been present and stating on oath that the persons named had attended the relevant meetings.

Referring to authority,[31] Franki J ruled that the evidence of the initials and the names of the persons present at the meetings was admissible.

55 Similarly, s 32(3) of the Evidence Act 2008 permits, with leave of the court, the reading into evidence of a document which is used in an attempt to revive the witness' memory. In Director of Public Prosecution (Vic) v Curran (Ruling No 2),[32] Kaye J refused to allow a witness who was experiencing difficulties of recollection to read into evidence, pursuant to s 32(3), parts of her witness statement made to police on the day of the offending. His Honour considered it to be 'on the borderline',[33] but held that it would be unfair to the accused to admit the evidence where the witness had no recollection of the event the subject of the statement and little recollection of how the evidence came to be in her statement.[34]

56 As a matter of principle and authority, there is nothing inherently objectionable about the admission into evidence of an account of events that a witness was able to give from memory at an earlier time, where the witness is unable to recollect those events at the time of cross-examination. The only condition for its admission is that the witness is able to say that the earlier account would have been a truthful account at a time when the events could be recalled.

57 This was not a case where a record of earlier recollections was introduced into evidence because the witness had no present recollection of the events. By dint of the procedure followed on the VARE, the evidence of the witness was given at a time when she recalled the events. At the time of making the VARE, EO had clear recall of the events subject of the charges. No issue of fraud or mistake arose. Unlike Curran, there was no question of any inability to recall how she came to give the evidence that she did in her VARE.

58 The appellant submits, however, that the uncertainty EO had in cross-examination as to whether she could recall the second occasion of penile intercourse rendered her VARE evidence inherently unreliable and unsafe. We reject that contention.

59 At the request of counsel at the hearing, we viewed the recordings of EO's evidence following the appeal hearing. EO appeared to be a credible witness. Her narrative flowed with little hesitation. The account was comprehensive. She gave every appearance of answering truthfully and to the best of her ability, albeit with the frailties that one would expect from a child of 16 years describing traumatic events in a stressful environment. Her evidence was coherent and detailed. She described physical sensations and pain, her emotions and some of her discussions with the appellant at the time of the incidents.

60 In her cross-examination on the special hearing, she gave every appearance of a witness endeavouring to be truthful. Defence counsel understandably sought to take advantage of her limited ability to verify the content of her VARE. With little exception, no attempt was made by defence counsel to have EO draw upon the recollections in the VARE when she could not answer questions in cross-examination. Unfortunately, because of interruptions, the cross-examination, which occupied some four and a half hours, was spread over three consecutive days. In the face of questioning of such duration, EO continued to answer thoughtfully.

61 In relation to her memory difficulties, EO confirmed at the outset that what she said in the VARE was the truth. It was never put to her that she was a liar. She rejected defence counsel's suggestion at the conclusion of her cross-examination that she had said things that were not the truth. She appeared to give direct and honest responses whenever she felt unable to say with certainty that she recalled a particular event. Her inability to recall incidents did not appear to be in any sense evasive. She did not appear to have attempted to manufacture evidence. To the contrary, she appeared to be frank and direct in her testimony. In re-examination, she acknowledged her memory difficulties and gave specific explanations, which included her desire to forget the incidents, that she felt 'disgusted and ashamed' of herself during the time of the incidents, and that she felt that she had 'betrayed' her mother.

62 The fact that EO could no longer identify with clarity in cross-examination what she remembered of the act the subject of charge 2, or distinguish it from other acts, did not render her account unsafe and unsatisfactory. It was well open to the jury to conclude that she was a truthful witness whose memory problems had arisen since the offending and the VARE, and may have been exacerbated by the stress of cross-examination.

The conviction on charge 8 - Grounds 4 and 5 - Verdicts inconsistent and unsafe and unsatisfactory

63 The appellant submits that his conviction on charge 8 was unsafe and unsatisfactory (ground 5) and was inconsistent with the jury's failure to reach a verdict on charges 3, 5 and 7 and his acquittal on charge 6 (ground 4). The submissions again conflated the issues raised by the two grounds. As we have explained in dealing with grounds 2 and 3, such grounds are discrete, although the reasons for concluding that there is no inconsistency may bear upon the question whether a particular verdict is unsafe and unsatisfactory.

(i) Inconsistency between verdict on charge 8 and disagreement on charges 3 and 5

64 The act the subject of charge 8 was a separate incident. The appellant raises an identical argument to that raised under ground 2 - that the jury's disagreement on charges 3 and 5 is inconsistent with the verdict on charge 8. For the reasons we have given under ground 2, there is no necessary inconsistency between the jury's failure to reach a verdict on charges 3 and 5 and the conviction of the appellant on charge 8.

(ii) Acquittal on charge 6 and disagreement on charge 7 inconsistent with verdict on charge 8

65 The appellant further contends that the verdict on charge 8 is inconsistent with his acquittal on charge 6 and the jury disagreement on charge 7. Though charges 6 and 7 concerned a separate incident from that giving rise to charge 8, EO gave evidence about the conduct on all three charges in the same passage of her VARE. An evaluation of the inconsistency ground in respect of these charges again requires a recitation of the evidence to determine whether there was a logical reason for the jury to differentiate between the charges.

66 In her VARE, EO described the first incident, involving anal sex (charge 7) and vaginal intercourse (charge 6), and the anal sex (charge 8) in the second incident, as follows:

Q: We've gone over a few times [sic]. Is there any other times that you can tell me about?

A: I'm pretty sure that's it. Twice, I think, it, yeah twice -

Q: Yep.

A: - there was anal intercourse.

Q: Twice?

A: Yep, as far as I can remember.

Q: Tell me about the first time that happened.

A: The first time, the first time it happened I, I didn't, I wasn't sure and all I knew was that it hurt a lot, a lot more than it did when I, when he did put his penis in my vagina, but when he put his penis in my, my anal it hurt a lot more -

Q: Mm.

A: - and when he noticed that it did hurt a lot more he stopped that but I felt like I couldn't move.

Q: Mm. So that time, tell me everything from the beginning to the end of what happened.

A: It started off with the normal intercourse - - -

Q: Mm'hm.

A: - where, where he just put his penis in my vagina, that's how it started -

Q: Mm'hm.

A: - and then it, then it changed and the pain grew a lot more.

Q: It changed?

A: Yeah, like, I wasn't sure, like, when his penis was in my vagina it hurt -

Q: Mm'hm.

A: - but then when it, when it went in, what's the word, when it went into my anal it hurt a lot -

Q: Mm.

A: - and -

Q: So you said when it went into your anal.

A: Yep.

Q: So that's -

A: And I knew that it had gone into my anal because I felt him move down, further down -

Q: Yep.

A: - than he needed to.

Q: What happened then?

A: And he did what he normally did.

Q: Mm.

A: He put his penis in my anal and then take it out and then, but I started crying 'cause it hurt a lot more and he stopped and he asked if I was O.K. and I told him that I was O.K., it just hurt and then he said that he was sorry and, and he asked me if I wanted to stop and I said yes and so he let me leave, he let me go and have a shower -

Q: Mm.

A: - and I didn't have to do anything after that on that day.

Q: Where were you when this happened?

A: In the bedroom.

Q: Whose bedroom?

A: My parents' bedroom.

Q: O.K. And what time of the day was it?

A: It was at night-time about -

Q: Where was your mum?

A: At work.

Q: What year were you in at school then? Do you know when, when it was?

A: No, I'm not sure.

Q: All right. How did that make you feel?

A: A little shocked.

Q: Mm. So tell me about the other time that happened.

A: The other time was in his studio again on the floor again and this time he put a blanket on the floor and he told me that it might hurt a bit and just to relax and I tried to relax 'cause he said that if I relaxed it won't hurt as much and even though I did relax it still hurt just as much.

Q: Mm. So what did he do?

A: He, he put his penis in my anal again and he repeated that. He took it out, took his penis out and then put it back in my anal and then did that five times -

Q: Mm'hm.

A: - till it, to the point where I couldn't take it and I started, started crying and I tried to move away -

Q: Mm.

A: - and, and when he realised that I was trying to move away he, he stopped and told me that I could go.

Q: O.K. What blanket? What, tell me about the blanket on the floor.

A: It was a big blanket.

Q: Yep.

A: I think it was a queen size. It was my blanket.

Q: O.K. What colour?

A: It was black with little flowers on it, red flowers.

Q: O.K. And again, what time of the day was this?

A: Night-time.

Q: Where was your mum?

A: Asleep.

Q: She was asleep.

A: Yep.

Q: So what, how did it start? Did -

A: I don't -

Q: How did he get you to the studio?

A: He waked me up again.

Q: O.K. How long after the other one did this happen?

A: A few months afterwards.

67 EO's evidence in cross-examination at the special hearing differed significantly from her VARE evidence:

[DEFENCE COUNSEL]: Yes, Your Honour. All right, well, can - can I ask you, then, as you sit here now, do you remember these or any episodes where he placed his penis in your anus?---I'm not sure.

HER HONOUR: Do you know what anus means, because you - do you know what an anus is?---Yes.

Yes. Same as anal, if you like, you know that?---Yes.

All right.

[DEFENCE COUNSEL]: So as you sit here now, you're not sure if you can remember any of those times or not? Is that what you're saying?---Yes, I can.

You can remember. All right. Well, can you remember a specific occasion, a particular time that that happened?---It was in my parents' room.

So you can remember a time in your parents' room can [you]?---Yes.

All right and with that time in your parents' room that you can remember, are you able to say whether that was the first time that it happened or are you not sure?---I'm not sure.

Can you remember whether that happened at night time or in the day time or are you not sure?---Ah, unsure.

Can you - you can't remember, I suppose, what year it was or what year you were in at school?---No.

But what you'd say is that it wasn't one of the first things - one of the first sexual things that he did with you, was it?---No.

So, it's not likely to have been in Year 7, as you'd be able to say that, wouldn't you?---I'm not sure.

All right. Well, can you remember on the day that you're talking about, did it - it was in his bedroom. Did it happen on the bed?---I think so. Yes.

When you say, you think so, you don't have a very clear picture in your mind. Is that what you're saying?---Slightly, yes.

HER HONOUR: Sorry?---Yes.

You don't have a clear picture in your mind. Is that what you said?---Yes.

[DEFENCE COUNSEL]: All right. Well, when it happened was he naked?---Yes.

Were you naked?---Yes.

So neither of you had any clothes on at all?---No.

Can you remember - you think it was on the bed. Can you remember how you got to be on the bed?---What do you mean?

Well, you'd been standing up at some stage when you went into the room. Is that right?---Yep.

But you ended up on the bed?---Yes.

Can you remember how you ended up on the bed? I mean, did he put you there or did you lie down there or what happened there or can you not remember?---I laid down.

You laid down, did you?---Yes.

All right. So, you took your clothes off first?---Yep.

And then you laid down on the bed?---Yes.

On your back?---Yes.

And what, he got undressed and he got on the bed as well, did he?---Yes.

All right and can you remember what happened then?---I don't understand.

Well, after he got on the bed. Did he lie on top of you or did he lie next to you? What - can you remember or not really?---On top.

He lay on top of you, did he?---Yep.

All right and when he lay on top of you did he - did he put his penis in your vagina?---No.

No? All right. So, you're lying on the bed and he's lying on top of you?---Yes.

And he didn't put his penis in your vagina. Did he put his penis in your mouth?---No.

Did he put his penis straight into your anus, did he? Into your anal?---Yes.

And when he did that you were lying on your back?---Yep.

And did he lie between your legs?---I don't understand.

Well, you're lying on your back?---Yes.

And you've got - you've got your head up near the pillow end, I suppose. Is that right?---Yes.

And you've got your feet down near the other end of the bed. Is that right?---Yes.

And is this on top of the blankets or is it on the sheets or- - -?---On top of the blanket.

On top of the blankets, all right and so that's how you're lying on the bed with your legs - before he got on top of you, I suppose you just had your legs stretched out? You're just lying along the bed. Is that right? You're just lying on your back on the bed?---Yes.

With your legs together?---I can't remember.

All right but what you do remember is that he lay on top of you?---Yeah.

Is that right and when he lay on top of you did he have to move your legs apart when he lay on top of you or did he move your legs apart is what I'm really asking?---Yes.

He did. All right, so that once he'd done that he was lying in between your legs, was he?---Yes.

And you had your feet still on the bed?---Yes.

Did you have your knees bent?---Yes.

And that's how you were lying when he put his penis in your anus. Is that right?---I don't understand.

Well, is that the position that you were lying in when he put his penis in your anus?---Yes and he had to sit up.

Sorry?---He had to sit up.

He had to sit up to do that, did he?---Yes.

He'd been lying between your legs?---Yep.

And what, he sat up?---On his knees.

He sat on his knees?---Yes.

But you were still lying in that position on the bed?---Yes.

And then he put his penis in your anus. Is that what happened?---Yes.

All right and he didn't use any - didn't put any cream on his penis or anything like that?

HER HONOUR: Did you see him do any of that?

[At this point in proceedings, EO required a break. In due course her cross-examination continued:]

[DEFENCE COUNSEL]: [EO], I was just asking you about this time that you remember when he put his penis in your anus and you told us how you'd been lying on the bed and he got onto the bed and he got on his knees on the bed. Is that what he did?---Yes.

All right and when he was on his knees that's the position he was in when he put his penis in your - in your anus or in your anal. Is that right?---Yes. He had to lift my legs up.

He had to lift [your] legs right up. All right and so that's what he did. He lifted your legs up and then he put his penis into your anus?---Yes.

And is this the first time you can - is this the only time you can remember him doing that?---I'm not sure.

All right but this is a time in your bedroom?---Sorry?

In his bedroom, I beg your pardon?---Yep.

It's in his bedroom.

HER HONOUR: Well, she thought.

[DEFENCE COUNSEL]: Yes. I'm sorry. As far as you can remember it's in his bedroom and it's on his bed, as far as - - -?---I think so. Yes.

All right. It's just that - see - and I should say the way you remember it, you didn't suck his penis or he didn't put his penis in your mouth on this occasion?---I'm not sure.

All right. I thought you said before that you couldn't remember him doing that and he didn't put his penis in your vagina on this occasion, as far as you can remember?

HER HONOUR: Do you know if he did that?---I'm not sure.

[DEFENCE COUNSEL]: Yes. All right. It's just that when you spoke to the police what you said to them ... You said, look, there were twice, I think that he put his - that there was anal intercourse and you told the police that two different occasions, all right?---Yep.

But one of them was in the studio?---Yep.

And that's not the one that we're talking about here, is it?---No.

No and the other one was in the - in his bedroom, as I understand it?---Yep.

What you said to the police is this, 'It started off with the normal intercourse where he just put his penis in my vagina'. That's how it started?---Yep.

But that's not how you remember it happening now?---I don't know.

Well, as you sit here now you can't remember this starting with him just putting his penis in your vagina, can you?---Sorry?

As you sit here now and you remember this time that he put his penis in your anus, you don't remember it starting with him putting his penis in your vagina, do you?

HER HONOUR: You're being asked about now. Now, when you're being asked these questions do you remember that now or not?---I'm not sure.

What you said to the police is this, 'And then it changed and the pain grew a lot more'. You said, 'I wasn't sure, like when his penis was in my vagina it hurt but then when it went in my anal it hurt a lot'. That's what you said to the police?---Yep.

And you said, 'I knew it had gone into my anal because I felt him move further down than he needed to than what he normally did'. That's what you said to the police. Is that how you remember it now?---I don't understand.

HER HONOUR: Do you remember that now?---Yes.

Do you remember that happening now is the - - -?---Yes, slightly, vaguely.

Well, as I understood what you were saying to the police is that he was just having sexual intercourse with you in like the normal position.

HER HONOUR: Well, I don't know that I - - -

[DEFENCE COUNSEL]: Yes, sorry, Your Honour. When you talked about him having sexual intercourse with you did you have the memory that if he put his penis in your vagina it was when you were lying on your back and he was lying on top of you.

HER HONOUR: I think that's difficult, I'm sorry.

[DEFENCE COUNSEL]: All right.

HER HONOUR: It's the memory and it's - you're talking about on this occasion. Because she doesn't remember now, as I understand it, whether there was any penis in the vagina but she says there was anal.

[DEFENCE COUNSEL]: Yes. All right. You can't remember or can you remember if the incident that you've just told us about is the same one you were talking to the police about? Can you remember if it's the same one or not?

HER HONOUR: You mean the anal?

[DEFENCE COUNSEL]: The anal.

HER HONOUR: The anal, you're talking about there about being on the bed I think and so on. Is that the same one you told the police about, do you know?---I'm not sure.

[DEFENCE COUNSEL]: All right and then as you sit here now that's the only one that you can remember? That's the only episode of - or the only time that he put his penis in your anus or in your anal that you can remember. Is that right?---Sorry?

Yes. I'll try again. As you - here today?---Yes.

You can only remember one time that he ever put his penis in your anus or anal. Is that right?---Yes, at the moment.

All right. Look, you've probably just answered this but when you did your taped interview or recorded interview with the police?---Yes.

Yes. You told them about a time in the studio that he put his penis in your anus?---Yes.

But you can't remember that at all at the moment?---Yes.

HER HONOUR: Well - - -

[DEFENCE COUNSEL]: When you say yes, are you agreeing with me?---I'm having trouble remembering it.

68 To summarise the state of the evidence, in her VARE EO described two incidents of anal penetration. In the first incident, said to have taken place in the appellant's bedroom, he first penetrated EO's vagina with his penis (charge 6) and then her anus (charge 7). In the second incident, which took place in the studio, the appellant penetrated EO's anus with his penis (charge 8). However, in her cross-examination, EO described the incident of anal penetration in her parents' bedroom, but said that the appellant did not penetrate her vagina with his penis during that incident. She said she had trouble remembering the studio incident.

69 The submission that there was an inconsistency between the verdict on charge 8 and the acquittal on charge 6 and disagreement on charge 7 cannot be sustained. These outcomes are not an affront to logic. There are sound reasons to distinguish between EO's evidence concerning the incident the subject of charges 6 and 7 and the incident the subject of charge 8. In relation to the first alleged incident of penile vaginal sex and anal sex, EO's cross-examination gave rise to specific doubts as to whether the acts occurred as she had described them in her VARE. In cross-examination she said there was no vaginal penetration. The jury, alert to the state of the evidence, thus acquitted the appellant on charge 6. She had said in her VARE that vaginal penetration immediately preceded the anal penetration the subject of charge 7. Her denial of vaginal penetration during cross-examination could rationally explain the disagreement on charge 7. One or more members of the jury could legitimately have reasoned that, having said there was no vaginal penetration, it was unclear whether the remainder of her description of that incident was reliable.

70 The description in the VARE of the incident in the studio was vivid and contained graphic detail. She described a distinctive blanket upon which she lay, recalled conversations with the appellant, and specifically said that the appellant had penetrated her anus five times. It must again be remembered that EO was giving evidence at a young age and in relation to what must have been highly traumatic events.

71 In cross-examination, EO agreed with defence counsel that she could presently only remember one incident of anal sex. She agreed with defence counsel that she had told the investigator about the time in the studio when the appellant had put his penis in her anus, but had trouble remembering the incident. That was the extent of her evidence concerning charge 8 at the special hearing. The jury would have been well aware of her potential failings as a witness. It was open to the jury to determine which parts of her evidence they would accept and which they would reject.

72 There was ample reason in EO's account for the jury to differentiate between charges 6 and 7 and charge 8. The jury returned a unanimous verdict on charge 8. The appellant is unable to demonstrate that the jury reasoned irrationally in arriving at these different outcomes.

(iii) The verdict on ground 8 was unsafe and unsatisfactory

73 The appellant makes an identical submission to that raised under ground 3. It was said that, as EO could not, in her cross-examination, recall the facts concerning charge 8, the verdict was unsafe. For the reasons we have given in relation to ground 3, this submission cannot be sustained.

74 The inability of EO to remember the incident during her cross-examination did not mean that the jury were bound to have a reasonable doubt about her account. There were ample reasons for the jury to accept that, by the time this issue was raised in cross-examination, EO had difficulty remembering the incident. Nothing emerged in cross-examination that compelled the jury to doubt the graphic account provided in the VARE in respect of that incident.

75 The appellant also relies upon the complaint as to inconsistency of verdicts which we have rejected. That said, we have considered whether the obvious rational reasons why the jury acquitted on charge 6, and some jurors at least would not convict on charge 7, could support the submission that the verdict on ground 8 is unsafe or unsatisfactory. In our view, neither the obvious reason for the decision to acquit on charge 6 nor the disagreement by the jury on ground 7 necessitated a verdict of acquittal on ground 8. It was open to the jury to convict the appellant on the basis of EO's detailed VARE evidence.

Ground 6 _ - Direction regarding unreliable witnesses_

77 The appellant was refused leave to appeal on ground 6. He has elected to renew his application for leave on that ground in this Court. The appellant filed supplementary submissions addressing the reasons for the refusal of leave.[35]

78 Under cover of ground 6, the appellant submits that the trial judge erred in directing the jury that it was a matter for them as to what weight they could accord to the evidence of a witness they found to be unreliable either in part or in the totality of their evidence, and to anything in the evidence they found to be unreliable. On the third day of deliberations, the jury asked the following question:

We would like some clarity about acceptable levels of doubt, because we're not sure how we, much we can disregard the evidence of witnesses we find unreliable.

79 In response, after discussion with counsel, the trial judge instructed the jury as follows:

So first of all, talking about witnesses that you find unreliable, dealing with that aspect first. As you'll recall, I think I said now at the start and in the charge, it's up to you to determine, if any witnesses are reliable and or credible and there's a difference between reliability and credibility. Credibility honesty. Reliability may be something different where a witness may be honest, but have a bad memory, that sort of thing right and it's up to you whether or not you accept a witness as credible or reliable in part, in total or not at all, it's entirely a matter for you.

Now if you find a witness is unreliable, which is your question. If you find a witness is unreliable either in the totality of their evidence, or in a part of it, well then it's a matter for you to determine whether you, the jury, accord the unreliable witness any weight or not. Or what weight you attach to anything you find unreliable, in the evidence. I think that's the first part.

80 In discussion with counsel following the jury question, the trial judge asked counsel whether she should direct the jury that they could not use the evidence of a witness they found to be unreliable. Defence counsel replied, 'Well they can use it in my submission, Your Honour'. In further discussion with the judge after the jury question, defence counsel said in relation to EO's mother:

HER HONOUR: Well it'd depend on what they - if they find her - it's awkward, if they find her unreliable in one sense, in one aspect only, it doesn't necessarily mean that they wipe the whole lot of the evidence.

[DEFENCE COUNSEL]: No, that's right.

HER HONOUR: So -

[DEFENCE COUNSEL]: Well they might give it some weight, they might give it weight for certain purposes, but not be prepared to act on it beyond reasonable doubt. So in my submission, Your Honour should give them the direction that Your Honour's already outlined about it's up to them as to whether they accept some, or none of the witness's evidence, but it's also up to them as to how much weight they accord the witnesses' evidence, because that might be one of the issues that they're struggling with in terms of unreliability. They may think that there is evidence that is unreliable, but nonetheless can be given some weight. I'm obviously coming from the perspective, Your Honour, that things that are said by a witness might occasion them to have doubt about whether certain events took place.

81 This position appears to have been influenced in part by a forensic consideration. Defence counsel, in his address to the jury, had submitted that EO's mother was an unreliable witness but that there were portions of her testimony upon which he wished to rely. Thus he requested that the judge give the direction that she did. As the trial was governed by the Jury Directions Act 2013, and as defence counsel had requested the direction under s 11, the trial judge was obliged by s 14 to give that direction unless there was good reason not to do so.

82 Despite this, the appellant now submits that the direction given was in error and that the jury should have been directed to disregard any evidence they found to be unreliable. Such evidence, says the appellant, could be given no weight at all, whether it was part or the totality of the evidence of a witness. He argues that the effect of the judge's direction was that the jury could have reached verdicts of guilty by relying on evidence that they considered to be unreliable.

83 In her charge, the trial judge had directed the jury about credibility and reliability. Her Honour gave them the conventional direction that they could accept some, all or none of the evidence of a witness. As to the reliability of witnesses, including EO, the trial judge said that a 'witness may be honest but have a poor memory or be mistaken'. No complaint is made about those instructions. The judge picked up on this language in her redirection, specifying that she was discussing reliability, not credibility, in the sense that it arises 'where a witness may be honest, but have a bad memory, that sort of thing'.

84 There is no authority for the broad assertion made by the appellant that any evidence viewed as unreliable must be disregarded in its entirety. As the Crown submitted, evidence that is 'unreliable' in the sense referred to by the trial judge may nonetheless be considered by a jury. Unreliability, in this context, refers to a risk that evidence will be inaccurate or misleading because of its nature and content or by reason of the position of the witness.[36] The magnitude of the risk of inaccuracy, and its effect on the probative value of the evidence, is a matter for the jury.

85 Section 165 of the Evidence Act 2008 requires the trial judge to give a warning as to unreliable evidence where a party requests it. The warning must identify the evidence that may be unreliable and the matters that may cause it to be unreliable. The section further requires the judge to warn the jury about

the need for caution in determining whether to accept the evidence and the weight to be given to it.[37]

86 The jury is entitled to weigh the risk of inaccuracy - or, in this case, poor memory - in relation to any given piece of evidence, in order to determine its probative value. Evidence which may be considered of doubtful accuracy may nonetheless, in conjunction with other pieces of evidence, support a conclusion based on the evidence as a whole. But the jury are not required to make some preliminary determination of whether parts of the evidence are unreliable and then disregard them.

87 As the appellant acknowledges in his supplementary written submissions, the closing addresses and the charge focussed upon unreliability in the context of EO's problem with her memory. Both parties in closing address submitted that the level of detail of EO's account should be considered when assessing the reliability that account. Attention was drawn to the conversation which surrounded the incident and the words attributed to the appellant, the manner in which EO described the psychological trauma of the event, and her description of the pain and the physical positions adopted during the episode.

88 The impugned passage in the charge was part of extensive directions on the issue of unreliability. Her Honour explained how those instructions related to the witnesses in the case. The jury were clearly told that the weight to be given to evidence that was potentially unreliable was a matter for them. The impugned direction was followed immediately by a redirection on the standard of proof. The redirection was in response to the jury question querying how findings of unreliability bear upon 'acceptable levels of doubt'.

89 The direction carried the clear meaning that it was a matter for the jury whether particular evidence, in whole or in part, was unreliable and how much weight it should be afforded. This direction supplemented the repeated instruction that the jury could not find a charge proved unless they were satisfied that the facts had been proved beyond reasonable doubt. The direction which followed the impugned passage again addressed the standard of proof. We agree with Osborn JA who said, in refusing leave on this ground, that there was no error in the direction and no practical likelihood that the jury were misled.

90 Even if, contrary to our view, there was an error in the impugned passage, it was not such as required the trial judge to redirect the jury so as to avoid a substantial miscarriage of justice. The direction now sought was not requested by trial counsel. By s 11 of the Jury Directions Act 2013 counsel was obliged to request any necessary directions. Subject to s 15, the trial judge was not obliged to give a direction that had not been requested.

91 On appeal, no argument was addressed to the Jury Directions Act 2013 and the consequence of defence counsel having specifically requested the impugned direction. In Xypolitos v The Queen,[38] this Court very recently set out the circumstances in which the trial judge would be obliged under the Act to give a direction notwithstanding that no such direction or a different direction was requested by counsel:

Now, before the obligation arises, the judge must be positively satisfied that the direction in question is necessary to avoid a substantial miscarriage of justice. It requires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial.[39]

92 The circumstances were not such as required the trial judge to recognise that a failure to give the direction now suggested was likely to be productive of a substantial miscarriage of justice.[40] If there be any infelicity in the language employed by the trial judge, it did not undermine the essential instruction that the question of the reliability of the evidence of a witness, and the weight to attach to it, were entirely matters for the jury.

[1] Crimes Act 1958 s 44(1).

[2] Crimes Act 1958 s 47(1).

[3] See Martin v The Queen [2013] VSCA 377, [22]-[26], as to discussion of the procedure.

[4] (2010) 29 VR 305.

[5] Ibid 318, cited in Svajcer v The Queen (2010) 200 A Crim R 587, 596 [38].

[6] (1996) 190 CLR 348 ('MacKenzie'), cited with approval in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 630-1 (McHugh, Gummow and Kirby JJ).

[7] MacKenzie (1996) 190 CLR 348, 366.

[9] [1998] HCA 75; (1998) 197 CLR 316.

[11] [2014] VSCA 249 ('Pillay').

[13] [2005] QCA 281 ('DAL').

[15] [2014] VSCA 86.

[17] [2013] VSCA 377.

[18] Ibid [37] (Redlich JA, with whom Maxwell P and Neave JA agreed) (citations omitted).

[19] See DAL [2005] QCA 281, [25].

[22] (1987) 44 SASR 591, 593.

[24] M v The Queen (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).

[25] Ibid 492-3; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 (Hayne J).

[26] [1975] VicRp 74; [1975] VR 741 ('Alexander').

[29] Ibid, referring to King v Bryant (No 2) [1956] St R Qd 570; Doe d Church and Phillips v Perkins [1790] EngR 2406; (1790) 3 TR 749; 100 ER 838; Howard v Canfield (1836) 5 Dowlings Practice Cases 417; Beech v Jones [1848] EngR 252; (1848) 5 CB 696; 136 ER 1052; R v Harvey (1869) 11 Cox CC 546; Ames v Nicholson [1921] SAStRp 24; [1921] SASR 224; R v Naidanovici [1961] NZPoliceLawRp 24; [1962] NZLR 334.

[30] (1984) 56 ALR 647, 682-7 (Franki J).

[31] R v Harvey Jones (1979) 5 Petty Sessions Review 2059 (Court of Criminal Appeal of New South Wales); Prestage v The Queen [1976] TASStRp 3; [1976] Tas SR 16; R v Baffigo [1957] VicRp 39; [1957] VR 303; Ex parte Bennett; Re Cunningham (1967) 86 WN (Pt 2) (NSW) 323; Shaw v Lindsey [1808] EngR 421; (1808) 33 ER 798; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517; Alexander v The Queen [1981] HCA 17; (1981) 34 ALR 289; R v Alexander [1975] VicRp 74; [1975] VR 741.

[32] [2011] VSC 280 ('Curran').

[35] See Ayol v The Queen [2014] VSCA 151, [14], [26]; Booysen v The Queen [2014] VSCA 150, [9]; Mifsud v The Queen [2014] VSCA 160, [16].

[36] Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, 549 [152].

[37] Evidence Act 2008 s 165(2)(c).

[38] [2014] VSCA 339.

[39] Ibid [44] (emphasis in original).