Ward (a Pseudonym) v The Queen [2017] VSCA 37

CRIMINAL LAW - Trial - Course of evidence - Child witness - Cross-examination - Difficulties of comprehension - Obligation of fairness to witness - Importance of age-appropriate questions - Duty of trial judge to ensure fair trial - Defence counsel's obligation to accused - Rule in Browne v Dunn (1893) 6 R 67 - Procedural fairness - Content of obligation varies with age of witness - Benefits of pre-evidence hearings - Assessment of child's capacity - Sources of guidance for judges and practitioners - Evidence Act 2008 ss 41, 42.

CRIMINAL LAW - Appeal - Sentence - Sexual penetration of child under 16 (three charges), indecent act with child under 16 (three charges) - Victim aged between six and seven - Total effective sentence nine years' imprisonment, non-parole period seven years - Whether manifestly excessive - Serious offending - Breach of trust - Previous good character - Offender aged 68 - Sentences within range - Leave to appeal refused.

1 Following a 12-day trial, the applicant ('RW'), aged 68, was convicted of three charges of indecent act with a child under the age of 16 and three charges of sexual penetration of a child under the age of 16. He was found not guilty of two charges of sexual penetration of a child under the age of 16. All of the offending related to the same complainant ('J'), who was between six and seven years old at the time of the offending.

2 Following a plea in mitigation, RW was sentenced to nine years' imprisonment, with a non-parole period of seven years. He now seeks leave to appeal against conviction and sentence.

3 As to his conviction, RW contends that the verdict of guilty on each of the six charges was 'unsafe and unsatisfactory'. He relies on what are said to be inconsistencies between J's evidence in her recorded interview ('VARE') and her answers to questions during cross-examination at the special hearing. RW's contention is that these inconsistencies so damaged J's credibility and reliability that none of the convictions can stand.

4 The very same arguments were raised by way of a no case submission before the trial judge. The prosecutor in response submitted that J's answers on the VARE were clear, coherent and vivid, and the detail consistent with J's initial complaints to her parents. He drew attention to the fact that it was not put to J that she had lied in her VARE, nor was it suggested to her that specific events she described in her VARE did not take place.

5 As explained in Part 1 of these reasons, we have concluded that none of the apparent inconsistencies were such as to preclude the jury from being satisfied beyond reasonable doubt that J was a witness of truth. This conclusion rests substantially on the content of J's answers in the VARE, the form of the questions put to her in cross-examination, and on her age, all of which bear directly on the significance which the jury could reasonably attach to her answers.

6 Some of J's answers - read literally - might have appeared to contradict or negate statements which she had made in the VARE or, at least, to raise a reasonable doubt about her evidence. Much of the written and oral argument on the appeal therefore focused upon the nature and content of the cross-examination, both the questions asked and the answers given, and whether the 'puttage' was sufficient to undermine J's account.

7 Resolution of the appeal thus required an evaluation of the importance to be attached to J's answers, in the light of the account which she had given on the VARE, and of whether they gave rise to a reasonable doubt which the jury should have entertained. That required consideration of the entirety of J's evidence, her age, the form and content of the relevant questions, their context and other answers given relating to the same issue.

8 At trial the prosecutor had placed emphasis upon the nature of the questions asked in cross-examination and the meaning to be attached to the answers given. There was no suggestion, however, that there had been non-compliance with the rule in Browne v Dunn.[2] On appeal, senior counsel for the Crown submitted that, because of the nature of the puttage and other leading questions, the responses from J did not raise a doubt as to whether she adhered to her account on the VARE.

9 The question thus arose as to how counsel cross-examining a young child might discharge their obligation under the rule and also achieve their forensic objective of seeking to undermine the credibility or reliability of a child witness. In what follows, we intend no criticism of trial counsel for RW, who discharged her difficult task with obvious care and diligence.

10 As the parties acknowledged, the cross-examination of a child complainant in a case such as this is a task of considerable complexity, requiring great care and sensitivity. Where the purpose of the cross-examination is to undermine the child's credibility and/or to cast doubt on the child's account of the accused's conduct, defence counsel face two related forensic challenges. Both are governed largely by the dictates of fairness to a child witness.

11 The first challenge is to formulate questions which are age-appropriate. This is necessary as a matter of basic fairness to the child witness, so that he or she can understand the questions and respond. But it is equally important in the interests of the accused. Unless the questions are age-appropriate, answers which appear to create inconsistencies in the evidence are unlikely to serve the desired purpose of creating a doubt in the minds of the jury or - on appeal - of persuading this Court that the jury 'must have had a doubt' about the evidence.

12 The second challenge is that, so far as practicable in the circumstances, the child witness must be given the opportunity to say whether something they have said, and which the accused disputes, is true. This is the obligation of fairness to which expression is given in the rule in Browne v Dunn.[3] The content of this obligation is, of necessity, different in the case of young children, who will not generally respond with understanding or accuracy to a formal challenge to their evidence, or 'puttage' as to the accused's case. As a result, there is a significant risk that they will accept suggestions made to them by cross-examining counsel without understanding their implications.

13 Extensive oral submissions were addressed to the question whether the cross- examination had sufficiently challenged J's evidence in support of each charge, and whether there had been compliance with the rule in Browne v Dunn. Senior counsel for the applicant submitted that the rule had been complied with. Although defence counsel in closing address had eschewed any suggestion that J was lying, it was implicitly suggested to J that she had made up these allegations to support her parents.

14 As we have said, J was never asked directly whether what she had said in the VARE was true or whether particular alleged events had occurred. The Crown's submission was that questions of that nature were necessary as a matter of fairness to the child. Senior counsel submitted that the specific allegations J made on the VARE were not raised sufficiently or (in some cases) at all and that, as a result, the cross-examination did not give rise to a reasonable doubt about the allegations.

15 These are not new issues. They have been the subject of extensive consideration, for nearly three decades, by judges, academics, professional bodies and law reform commissions. In Part 2 of these reasons, we discuss the recognised difficulties of a young child in processing and accurately responding to the forms of questions conventionally employed in cross-examination of witnesses. We draw attention to academic and judicial discussion of the issues, both in Australia and overseas.

16 We also refer to the obligation of the trial judge to ensure that the cross-examination is fair to the witness, and to the powers available for that purpose under ss 41 and 42 of the Evidence Act 2008. The judge's overriding obligation, of course, is to ensure that the accused is not exposed to the risk of an unfair trial.[4] The discharge of these concurrent obligations imposes considerable demands on trial judges.

17 As will appear, there are already valuable sources of guidance available to judicial officers and practitioners. We refer in particular to the Bench Book For Children Giving Evidence in Australian Courts,[5] published by the Australasian Institute of Judicial Administration ('AIJA'), and to the 'Practical Guide' to questioning child witnesses, published by the Judicial College of Victoria as part of the Uniform Evidence Manual.[6]

18 Much of what is set out in Part 2 about the type of questions that are likely to be productive of misleading answers accords with common experience of how children respond to questions from adults or other authority figures. It also reflects a common-sense appreciation of the difficulties which a young child may experience in understanding the nature and purpose of cross-examination.

19 In closing address in the present trial, the prosecutor invited the jury to employ that common experience in assessing J's answers. Having reviewed the whole of J's evidence ourselves, we are satisfied that it was well open to the jury, drawing upon their own experience, to conclude that J was not retracting or resiling from her evidence about what RW had done to her. None of J's answers obliged the jury to entertain a reasonable doubt.

20 Part 3 of these reasons deals with the sentence application. Given the seriousness of the offending, we have concluded that the sentence was within range, notwithstanding RW's age.

21 RW's offending occurred between 5 May 2013 and 11 April 2014. J was between six and seven years old at the time. The family met RW through a cousin of J's father, shortly after the family had immigrated to Australia. J and her father, mother and younger sister, began living at RW's home shortly after 5 May 2013. They rented two rooms from him. Until then RW had been living alone. During the time the family were living with RW, he bought both children presents and kept animals for the children. When he erected a swing in the backyard, the words 'I love you [J]' were written on the swing. He also took J fishing and to a traditional dance.

22 At some point after the family moved into RW's home, RW commenced a sexual relationship with J's mother. While the family was living in RW's house, J's parents had a regular job cleaning at her father's cousin's house on Sunday afternoons. On many occasions when J's parents went to that job, they took their younger daughter with them but left J in RW's care. This is when much of the offending was said to have occurred.

23 RW's offending was disclosed by J after she was told by her father that the family would be moving to another house. Her complaints to her father and to the doctor who examined her (which substantially accorded with her allegations on the VARE) were admitted into evidence at the trial. J participated in a VARE on 12 April 2014. RW participated in a record of interview on the same day. J was cross-examined during a special hearing on 9 and 10 December 2014. Her father and mother, her father's cousin and the informant all gave evidence at the trial.

24 J was seven years old at the time of the VARE. Eight months elapsed before she was cross-examined at the special hearing. J was assisted by an interpreter at both the VARE and the special hearing. She would sometimes answer questions directly in English, and at other times through the interpreter. During the special hearing, after discussion between counsel and the trial judge, all questions during cross-examination were put to J through the interpreter, with J either answering directly in English or through the interpreter. During the VARE, questions were put through an interpreter only where J did not understand the question in English.

25 By way of overview, it is convenient to adopt the sentencing judge's description of the events that constituted each charge:

While [J and her family] were living in [RW's] house, [J's] parents had a regular cleaning job on Sunday afternoons. On many occasions when they went to that job they took their younger daughter with them but left [J] in your care. On one such occasion you showed [J] pornography on your phone. This pornography included moving images of naked men and women and women having oral sex with men (Charge 1).

On another occasion when you were looking after [J] you were in your bedroom. You removed your pants, exposed your penis and put [J's] hand on your penis. [J] asked what you were doing and you said you wanted her hand to be on your penis. [J] said she wanted to go and watch television but you said that she could after you had finished (Charge 2).

Charge 3 of sexual penetration of a child under 16 and Charge 4 of indecent act with a child under 16 arise from another occasion where you and [J] were in your bed. You penetrated [J's] anus with your finger. She did not like it and told you to stop. After you had penetrated her anus with your finger, you put your penis on her vagina. After this incident [J] put cream on her bottom because it hurt.

Charges 5 and 6 arise from another occasion. You put your penis in [J's] mouth. You showed her images of what she described as a 'Girl eating penis' and told her to 'Eat it'. She said she did a little bit. You asked her to do it more but she said she could not. On that same occasion you penetrated her anus with your finger. [J] said she could not tell you to stop because she was 'eating' your penis.[7]

PART 1 - CONVICTION APPEAL

26 RW's primary contention is that, when J's evidence is analysed on a charge by charge analysis, there are so many difficulties with its reliability that the convictions cannot stand. He submits that, as was held in the case of O'Reilly v The Queen,[8] J's evidence was of such a 'questionable form' that this Court should be left with a real doubt as to whether his guilt had been properly established on any charge.[9]

27 As we have said, RW contends that J's evidence under cross-examination amounted to a retraction of her allegations in the VARE. In order to evaluate this contention, it is necessary to consider how the relevant answers were elicited. We must also consider what view the jury were entitled to take of how a child of J's age would understand, and respond to, questions of the kind which were put.

28 With these considerations in mind, we turn to the state of the evidence on each charge and the basis for the contention that the jury should have entertained a reasonable doubt.

Ground 1: Charge 1 - Indecent Act with a child under 16 (showing of pornography)

29 It was alleged that RW showed J pornography on his phone, comprising images of naked women performing oral sex on men. J's evidence on the VARE was that her parents and younger sister had gone to their cleaning job, and that RW had said to her 'See your telephone', because he wanted to show her something. J said that he had shown her 'about sexing' and that he had shown her 'a lot of girls eating his penis and [she] didn't like it.'

30 During the VARE the following exchanges took place:

O.K. Tell me everything about that, from the very start to the very end.

My grandpa be silly.

Mm'hm.

When my dad going to job and go to another house and clean up with my baby sister and my mum.

Mm'hm.

He started and he tell me, 'See your telephone.'

Mm'hm.

And I said, 'Why?' 'Because,' he said, 'I wanna show you something.'

Mm'hm.

And he showed me about sexing.

Mm'hm.

And I didn't like it and he said to play. And he starts and he said to eat my - he said to - said to penis - his thing.

Mm'hm.

And I said, 'Why?' And he said, 'I wanna see - how do you do it.' And I said, 'I don't want to.' And he - he put my - he get his hand and he put it down to his penis and I said, 'Stop, stop.' And I gone of him and next I go into my bedroom and locked and closed my door and I didn't like it because he was being very yuck and very disrespect and I didn't like it. And when my dad said the house we found house. And I said, 'Great. I will tell my dad.' And next we were going to the police station.

Mm'hm.

And I wanna tell him because he showed me a lot of girls eating his penis and I didn't like it and I go and lock - and I close my door and I put some stuff in my door and I didn't like it because he was being very rude to me.

Tell me about the part where he showed you the telephone.

He show me the telephone because he want to do that to me. But he - he, the girl, he, he

(INTPRTR) He sent away this girl.

The girl and I didn't know that because I think of that and he was watching and cutting and he cut his hand. And the girl was in the - in the house. She was - she was cooking.

Mm'hm.

And - and - and he said, 'Go away,' his girl and - and she pack all her things and she go away. And she gone to her grandma's house.

Mm'hm.

And he make three houses. He gone to his house and another house and another house and tell us what do you - do you need to get a house and my dad find a house with someone else and - and I - I - I said to my dad, 'How can my grandpa be so silly?' And I did not like that part because he showed - he got a camera out too and he did that too. And he showed me that too.

Tell me about what he showed you.

He showed me sexy girls eating - and they do to him and I

Sorry, what were they eating?

(INTPRTR) His penis.

Whose penis were they eating?

His penis.

(INTPRTR) I don't know it belonged to some other boys.

O.K. So where did he show you that?

In his camera.

O.K.

On the last page.

O.K. Tell me about the camera.

The camera has got everything.

Mm'hm.

And me going fishing with my dad.

Mm'hm.

With my grandpa.

Mm'hm.

And he got that, the last thing, he got it last and I don't notice and I'm not telling him now because he forget that.

So after the part where he showed you the camera, what happened next?

And I did that too. He tell me to do that and I said, 'O.K.'

And he always want me to do whatever the girls in the - his telephone and his camera.

So when you said he showed you what sex do, what did he show you?

He showed girls - some girls got

Boobs.

He showed some girls got their boobs out.

Mm'hm.

And some boys touch the girl's bottom.

Mm'hm.

34 As these passages make clear, J repeated a number of times that she was shown videos, on both RW's phone and his camera, of females performing oral sex on men and that RW told her to copy what the females were doing.

35 In cross-examination, defence counsel put to J a series of propositions in the form '[RW] never touched you ...', each time referring to a different place or occasion. Each time, J answered, 'No'. The following exchange then occurred:

[RW] never showed you rude things on his phone (through interpreter)? (Direct): Yes.

Okay. What did he show you on his phone (through interpreter)? Naked women and naked men.

Okay. Can you remember when he showed you this? (Direct): No, I don't remember.

Was it only the once (through interpreter)? Yeah, only once.

Can you remember whether it was before or after he put his penis in your vagina (through interpreter)? - Before.

Before. Was it before or after he put his penis in your bum? After.

After. Okay. And where did this happen ...

HER HONOUR: [You] don't have to answer that, ... Where did what happen?

[DEFENCE COUNSEL]: Sorry, when he showed you the dirty pictures on the phone

[PROSECUTOR]: Your Honour

HER HONOUR: Do not use that word please.

[DEFENCE COUNSEL]: I am just trying to use the language she used in the VARE.

HER HONOUR: You can say pictures of naked men and women.

[DEFENCE COUNSEL]: ... when he showed you naked men and women on the phone where in the house were you? (Direct): In the lounge room.

And was it a photo on his phone? A video.

A video. Okay. And how long did you look at the video for? Just one hour.

An hour, okay? Yes.

Where were your mum and dad? I don't remember.

Okay. Was your sister at home? No.

What was happening on the video? (Through interpreter): I don't remember.

Can you remember if the people were doing anything on the video? (Direct): No.....

Did he say anything to you before he showed you that video? - (Through interpreter): Whatever you see on the video you're to do.....

And did he touch you when you were seeing the video? --- No.

So you didn't do what you saw on the video?

Interpreter: The answer was he allowed me to see it and then do it and then I did it, I beg your pardon.....

What did you do? --- (through the interpreter) The women were eating the men's willies, and I don't remember the rest.

36 We begin with two general points. First, the evidence of a child is not to be approached as though it is 'inherently' unreliable or deserving of less weight than that of an adult.[10] Secondly, as we will explain, particular forms of questions asked of J were likely to be productive of a misleading or inaccurate response.

37 Counsel for RW contended that the rule in Browne v Dunn had been discharged by the first question in the above passage. Assuming for present purposes that it was, we note nevertheless that the cross-examination did not draw attention to J's evidence that she was shown a pornographic video in the lounge room on RW's phone, or to her observations of what she saw on that video. She was not asked whether that occurred or whether it was true.

38 On the contrary, on several occasions later in the hearing counsel put to J her allegations about the video and its context as though they were accepted facts, before asking her questions as to what RW thereafter did to her. In order to decide whether the answer relied upon raises a doubt about J's allegation, it is necessary to examine the question that elicited the relevant answer, the context in which the answer was given, the surrounding answers, and such other evidence as J gave.

39 There were some minor differences of detail between J's evidence in the VARE and in the special hearing respectively, about how long, and when, she watched the pornography. On the appeal, however, it was all but conceded that these differences would not of themselves have required the jury to acquit RW on charge 1.

40 Despite that being the state of the evidence, RW submits that when taking into account the deficiencies in the evidence of J concerning charges 2 to 6, and the not guilty verdicts on charges 7 and 8, this court should have a reasonable doubt about charge 1. Charges 7 and 8 involved allegations of penile penetration which, it was accepted in oral argument, only emerged in a confusing fashion toward the end of the VARE.

41 We reject this submission. As the prosecutor told the jury in final address, J's detailed account of being shown a video of females performing oral sex on males was given with conviction. The cross-examination left largely untouched her account of the video she was shown.

42 Nothing occurred at the special hearing that undermined the cogency of J's vivid account. And, for the reasons that follow, we reject the submission that any of the asserted deficiencies with respect to other charges provided a sufficient basis for doubting the veracity of her account in support of charge 1.

43 Finally, we note that there was no exploration of J's detailed evidence concerning the incidents involving the video on RW's camera, which she said was shown to her in RW's bedroom. Investigating police seized RW's video camera pursuant to a search warrant. It was found to contain a pornographic video. The content of the video accorded with J's description of it on the VARE. It was never suggested to J that she had not been shown the video on RW's camera or that she had not been instructed to do what she saw females doing on the video. The evidence on charge 1, and the unchallenged evidence concerning the video on the camera, were highly relevant to J's credibility and formed part of the narrative in relation to some of the other charges.

Ground 2: Charge 2 - Indecent act with a child under 16 (hand on penis)

44 On the VARE, J said that, while they were in RW's bedroom, he exposed his penis and placed her hand on it. RW submits that there was a significant conflict between the evidence which J gave on the VARE and what she said at the special hearing, such that it was not open to the jury to be satisfied beyond reasonable doubt that the allegation was proved.

45 During the VARE, J referred to three different occasions on which RW had placed her hands on his penis. As a result, RW submitted, there was some confusion as to the basis upon which charge 2 rested. Closing addresses and the judge's charge show that the facts giving rise to charge 2 were those summarised in the preceding paragraph. The VARE contained further answers as to what occurred in RW's bedroom.

And really I tell my dad all the parts, all the things what he - he tell me to do and next we're going to the police and I - now I'm telling you all the truth and this is the truth.

O.K. Tell me about the part where he showed you his penis. What happened after that?

He - he said I can touch his penis and I said, 'No, no, no.' And he put - he got my hand and showed his penis and he put his hand in - my hands in the penis.

Tell me about that part.

And I - and I didn't like it because he was being so rude.

No, O.K. We were talking before about what happened in the bedroom where he didn't have his pants on. Tell me what happened from that point?

He got his pants on. He has the pants on and he got his trousers out and his pants out and he got my hand and put it in his penis.

Tell me about that part.

And I didn't like his penis and I - I tried to close my eyes and I didn't.

What did you see when your hand was on his penis?

I don't know.

Tell me about your hand being on his penis.

I asked him and said, 'Why do you put my hand on your penis?'

Mm'hm.

And he said, 'You wanna do sex to me?'

Mm'hm.

And 'Do you wanna play with me with my toys?' And he said, 'No, let's do sex.' And I said, 'May I please go and go in my room?' And he said, 'No.' And the last time where I checked he's been doing that for four times and my mum gone seven times to Anna and my dad and baby sister.

47 J's evidence of the other occasions on which RW took her hands and placed them on his penis was also relevant to the present issue. Her evidence on the VARE was that on all of these occasions it was RW who placed her hands on his penis.

48 RW points to answers provided by J in the special hearing which are said to be inconsistent with her VARE. The relevant cross-examination began as follows:

So when you were living with [RW] in the house with the swing, can you remember that? Yes.

When was the first thing you say [RW] did something to you? I don't remember.

Okay. Can you remember what [RW] did to you? I think that he wanted me to eat his willy.

Okay. When you say you think, did he say that? Yes.

Okay. And was that all that [RW] did? Yes.

So can you remember how long after you moved into the house with the swing that that happened? - I don't remember

Okay. Do you know where in the house he said this? - In his bedroom.

...

Okay. Did [RW] say anything else to you? No.

Did anything else happen with [RW] that day? No.

Okay. Did [RW] ever say that on any other days? (Direct): No.

No, okay. Did [RW] ever do anything to you? Don't answer that [to complainant].

HER HONOUR: Sorry, you are going to have to be more specific.

[DEFENCE COUNSEL]: Okay. Did [RW] ever touch you ...? Only hug me.

Only cuddling, okay. So [RW] never touched you on your pee pee? No.

... you never touched [RW's] pee pee, did you? No.

Did [RW] ever touch you on the bum? No.

Did [RW] ever - did you ever see [his] penis? Yes.

And was that when he was outside having a pee? No, in his bedroom.

Okay. And did [RW] ever put his penis near your pee pee? No.

Okay. Did [RW] ever put his pee pee near your bum? Yes

Okay. And what happened? - It was hurting me.

49 Later in the special hearing the following occurred:

Okay. Did you ever see ... [RW] touch his penis? No.

Did you ever touch his penis? No.

And you're are sure about that? (Direct): Yes.

50 RW submits that the conflict that had developed in J's evidence, arising from her denial that she touched his penis, could not be resolved, and necessitated a verdict of not guilty on charge 2. RW contended that, if the inconsistency created a doubt, the manner in which it emerged did not matter. As we have said, however, the nature of the questions and their context can affect the significance to be attached to the answer.

51 Both in closing address at trial and on appeal, the Crown submitted that when assessing J's answers, it was necessary to carefully consider the questions that were asked, and their context, and how they might have been understood by a child. The prosecutor in closing address submitted that what might be viewed as inconsistency in J's evidence arose, in part, because she was eight years old and because an interpreter was involved. He urged the jury not to jump to the conclusion that 'because there might be an answer that seems to be inconsistent, that it is necessarily inconsistent with what she has said.' The Crown submitted that, ultimately, it was well open to the jury to find that such apparent inconsistences did not amount to a recantation of J's evidence on the VARE and did not constitute an insurmountable obstacle to conviction.[11]

52 The cross-examination of J extended over two days. It took place some eight months after the VARE was conducted. On the first morning, before the cross-examination commenced, J watched the recording of the VARE. The morning session then went for 30 minutes, and the afternoon session for 40 minutes. None of the cross-examination that day addressed J's evidence relating to any of the charges. It was not until the morning of the second day that there was cross-examination directed at the charged acts. It was, by then, more than 24 hours since J had watched the VARE.

53 Reading the answers in the VARE in sequence, it is abundantly clear that J describes her hand being placed on RW's penis on each of the occasions she mentions. J's answers to two general questions in cross-examination, in which she denied touching his 'pee pee' or penis, were said to amount to a retraction of her allegation. The jury, having seen and heard J's evidence on the VARE and under cross-examination, were well aware of the defence contention that her answers raised at least a doubt about her allegation.

54 J's negative answer to the general question about touching RW's 'pee pee' must be read in context. As the Crown submitted, it is entirely plausible that a child of eight years old, being questioned through the use of an interpreter, did not think that, when RW placed her hands on his penis, she was 'touching' him. It was, after all, his action, not hers. He was forcing her to do something she did not want to do.

55 J's answers on the VARE, as to how she responded to requests by RW to touch his penis, are informative:

He - he said I can touch his penis and I said, 'No, no, no.' And he put - he got my hand and showed his penis and he put his hand in - my hands in the penis_._

He said 'Touch my penis' and I said 'No, no, no way.'

56 As noted earlier, J was not taken to her specific allegations, as stated in the VARE. Instead, the answers relied upon were given in response to broad general questions. As the prosecutor correctly pointed out to the jury, defence counsel had never suggested to J that what she said in her VARE was made up. When general propositions were put to her at the end of her cross-examination, he submitted, she was not referred to her evidence at the VARE or asked whether those things were untrue.

57 The jury were entitled to accept these submissions, in our view. Having regard to J's age, and the form of the questions, the jury were entitled to conclude that J was not intending by her answers to say that events she had described in her VARE did not happen. In particular, they were entitled to conclude that J did not appreciate that it was being suggested that her account was untrue.

58 This conduct was said by J to have occurred in the context of her being shown the phone video (the subject of charge 1) and RW's direction to her that she 'eat his penis'. As we have already said, nothing had occurred to undermine the cogency of J's detailed account with respect to the video. That evidence bore directly upon the question whether J was retracting her account that RW placed her hands on his penis.

59 Ultimately, it was a question for the jury to assess the evidence as a whole, including the answers given during the VARE and special hearing. The jury had to consider the timing of the special hearing, the way in which cross-examination proceeded, J's age and her ability to comprehend the questions asked over a lengthy period of cross-examination. We are not persuaded that J's answers to those general questions should have caused the jury to doubt the substance of her allegation that RW had placed her hands on his exposed penis.

Ground 3: Charge 3 - Sexual penetration of a child under 16 (finger in anus)

60 As already mentioned, J gave evidence that she was shown pornography on RW's camera while they were in his bedroom.[12] She was shown 'sexy girls eating his penis or other boys' penis'. RW then allegedly told J to 'eat my thing', and then penetrated J's anus with his finger.

61 J was asked during the VARE to tell the interviewer everything about 'after the part where he showed you the camera'.[13] She said:

He said, 'eat my thing.' And I said, 'O.K.' And next he put his hand in my bottom.

Mm'hm.

And I didn't like it.

Mm'hm.

And I - and I said, 'stop, stop.' And he stopped.

62 After moving to discuss other behaviour, the questioner returned to this incident:

I know it's hard to talk about ... but I want you to tell me about the part before - that you told me before where you said that he put his hand in your bottom. Can you tell me everything about that part.

Because he want he put it hard and harder in there and I - I didn't like it and when it had finished I put cream on it because it hurt.

O.K. Where did you put the cream?

In my bottom.

Yep. Tell me - tell me which part of your bottom.

In the side of my bottom.

Mm'hm.

And the other side of my bottom.

O.K. Do you have any other names for it?

No.

No. What do you use your bottom for?

Don't know.

O.K. Tell me how it felt when he put his hand in your bottom?

It felt very bad and I didn't like it.

Where did it feel bad?

In my bottom.

Mm'hm. Which part of your bottom?

The side of my bottom.

O.K. So after he put his hand in your bottom what happened next?

Next we're finished.

Mm'hm.

I go and the kitchen. I go into the kitchen.

Mm'hm.

And I go to eat some - I go and drink some water.

Mm'hm.

And next I go into the bath and put some cream on it.

Mm'hm. Tell me where you put the cream.

On the side of my bottom.

And why did you put the cream there?

Because it was hurt.

Mm'hm. Why did it hurt?

Because he put his hand on my bottom and in my bottom.

Mm'hm. Which part of his hand?

This one.

O.K. And tell me about what he did with his hand.

He - when I did that he put it in - in, in, in my bottom.

Tell me what his hand was doing.

He put - he - I don't know what he did. I don't know.

O.K. When he put his hand in your bottom, where were you?

I was - his - his bedroom.

63 J did not at any stage of her evidence say that RW used his 'finger.' But the video recording shows that, at the point where J was asked what part of his hand RW put in her bottom, she held up her index finger and said 'This one'. Later, when asked about what part of the body her bottom was, she repeated her evidence about putting the cream on her bottom.

64 RW again relies upon the answers during cross-examination set out above.[14] He relies on particular on this exchange: 'Did [RW] ever touch you on the bum? No.' That answer was followed almost immediately, however, by J agreeing that RW put his 'pee pee' near her bottom and that it was hurting her: Then the following occurred:

Okay. When you say, when I asked you whether he put it near your bum, can you explain to me what he did? I don't remember.

Okay. Can you remember what day it was or what - I'll withdraw that. Can you tell me where your sister was when this happened? - With [name].

Okay. And was that where your mum and dad were too? (Direct): Yes.

Can you tell me where you were when this happened (through interpreter)? In his bedroom.

Whereabouts in his bedroom? On the bed.

Where was he? On the bed.

Okay. What were you wearing? Pyjamas.

Okay. And what did he do with his penis? He took my pyjamas off and put it inside.

Put it inside where? My bum.

Okay. And what was he wearing? Just a top.

Okay. And I can't remember if I've asked you this, do you remember what time of the day it was? I don't remember.

Okay. And was this before or after he asked you to eat his pee pee? Before.

65 Then, in a succession of passages in the special hearing, questions were put to the complainant, based upon her account that RW had put his penis on or in her bottom.

And then you say he put his penis in your bum, did he? Yes.

Okay. Did his penis not go in your bum

[PROSECUTOR]: That's a bit of a negative, Your Honour.

HER HONOUR: I think if you want to put something, put it.

[DEFENCE COUNSEL]: Okay. ... his penis didn't go in your bum, did it (through Interpreter)? I don't remember.

Okay. All right. Can you remember how you felt? Yes.

And what was that? I was unhappy.

So he never put his penis in your bum again, you say (through interpreter)? No.

Finally, J said in answer to a suggestion that RW had never penetrated her anus with his penis:

And [RW] or granddad has never put his penis in your bum (through interpreter)? Only once.

67 It can be seen from the foregoing that J would have been left with the impression that it was not disputed that RW had touched her bottom.

68 The second asserted inconsistency relies on the following sequence of questions:

So after you ate your Cornflakes, what did you do (through interpreter)? (Direct): I played in the garden.

Okay. Who was that with, your sister or who was that with (through interpreter)? (Direct): With my sister.

So was that the only time you say that [RW] put his penis in your vagina (through interpreter)? (Direct): Yes.

Are you sure he put his penis in your vagina ... (through interpreter)? Yes.

So if I said to you he didn't put his penis in your vagina, would I be wrong? I don't remember.

Okay. Can you ever remember a time where [RW] touched your bum? (Direct): No.

So he never put his finger in your bum (through interpreter)? I don't think so.

Okay. Is that because you can't remember a time? Yes.

69 In the passages we have set out, J gave a considerable amount of evidence about RW placing his penis on or in her bottom, that it hurt her and that she felt unhappy. That being so, it is difficult to understand the contention that J may not have remembered that there were occasions when RW touched her bottom. The questioning in the last passage moves from the occasion when RW was said to have put his penis in J's vagina to general questions about RW touching her bottom and putting his finger in her bottom. The Crown submits that J may have been responding on the basis that she understood the question to relate to the occasion when she alleged RW put his penis in her vagina.

70 The prosecutor drew to the jury's attention that J had responded to the question 'So he never put his finger in your bum?' by answering 'I don't think so'. He submitted that J had given this answer because she could not remember a time. The prosecutor reminded the jury that J had been very clear eight months earlier that RW had placed his finger in her anus.

71 Once again, J was never asked whether she was telling the truth in the detailed account she gave of the circumstances in which she was shown the video and of the events that followed, including RW placing his finger in her bottom, and her claim that she put cream on her sore bottom. In those circumstances, and given the suggestive nature of the questions directed to this issue, J's answers did not prevent the jury being satisfied beyond reasonable doubt on this charge.

Ground 4: Charge 4 - Indecent act with a child under 16 (penis on vagina)

72 The conduct giving rise to charge 4 was said to have occurred on the same occasion as that giving rise to charge 3. It was alleged that, after penetrating J's bottom with his finger, RW put his penis on her vagina. During the VARE J said that he 'put his thing on my vagina',[15] and that he had 'got his pants off' and 'showed [her] his penis'.

And next he put his thing on my

(INTPRTR) He put his thing on my vagina.

O.K. So when you say, 'He put his thing,' what do you mean? And you can tell Denise, O.K.?

His penis. I keep forgetting.

O.K. So he put his penis - tell me about that.

He - he - he showed his penis.

74 RW again relies upon a passage of the cross-examination set out above at [48] the material part of which was:

And did [RW] ever put his penis near your pee pee? No.

RW submits, that having regard to the 'confused' state of the evidence as to whether he ever put his penis on or near J's vagina, any jury acting reasonably ought to have had a reasonable doubt with respect to his guilt on charge 4.

75 Once again, there was no cross-examination that explored the specifics of J's allegation or its linkage to charge 3. The question as to whether RW had put his penis near J's 'pee pee', which resulted in a denial, was followed by an affirmative answer to the very next question - whether RW ever 'put his pee pee near your bum.' The denial upon which RW relies was not necessarily inconsistent with J's detailed VARE evidence of the circumstances in which she was shown the video and her description of the conduct of RW which followed. It was well open to the jury to disregard the general answer relied upon as being a possible retraction of her allegation.

Ground 5: Charge 5 - Sexual penetration of a child under 16 (penis in mouth)

76 Charges 5 and 6 were opened on the basis that they occurred on the same occasion. Charge 5 related to the allegation that RW had placed his penis into J's mouth, while charge 6 was opened on the basis that, at the same time, RW inserted his finger into her anus.

77 The Crown relied on J's answers in the VARE which described the incident:

O.K. You said that he showed you the girls and they were eating penis. Is that right?

Yes.

Did grandpa make you eat his penis?

Yes.

Tell me about that part.

He said, 'Can you eat my penis?'

Mm'hm.

And I said, 'Why?' And I - I - I said, 'Why you want me to eat your penis?'

Mm'hm.

'Because I want you to see this video,' and there was a girl eating a penis.

Mm'hm.

And - and, and that girl was eating more.

Mm'hm.

She was eating and grandpa said he said, 'Can you eat it like that?' And I said, 'No, no, no I can't. I'm a small girl not a big girl.'

O.K. So tell me about how you ate it.

He said, 'Eat it.' He said to eat it - I said, 'Put the blanket on your penis.' And he said, 'O.K.' And he said, 'Eat it now.' And I said, 'O.K.' And he - I said, 'Is that better?' And 'cause he said, 'O.K. You want more?' I said, 'Not long. I'll tell my dad on you if you tell me longer and longer and longer.'

Mm'hm.

And I - I didn't know he wanted me to do that.

O.K.

And I said to my dad, 'Can I come with you and [auntie] when we finished?' I tell my dad and he said, 'Yes, we can.'

O.K. Sorry, mate. Tell me about when you ate grandpa's penis. Tell me what - how you ate his penis?

I forgot.

O.K. I know - I need you to have a think about it and tell me, you were on grandpa's bed and you asked him to put the covers over his penis?

Yes.

What happened then?

The next he want me to eat it and I eat it a little bit.

Tell me about that. Tell me about how you ate it a little bit.

I eat it a little bit of it up.

Mm'hm.

Just the up one not the down one. He said, 'You can do it down, down, down.' I said, 'No, no, no way, I can't.'

O.K. So when you eat it a little bit what happened?

He - he tried to - he - he said, 'Can you put it more?' I said, 'No, I can't.'

What part of your body ate it?

I forgot about it.

When you were eating grandpa's penis where did it go?

I forgot about it.

Have a think about it.

He said to eat it up and down, up and down, up and down.

Mm'hm.

And I said, 'If I have to eat it up and down, up and down and up and down 'cause how the girls do it, up and down, up and down.'

78 The contention for RW is that the allegation that he made J 'eat' his penis emerged because the second question in the above passage was a leading question. We disagree. The question did not suggest an answer. The questioner was not inviting J to introduce a fact to which she had not previously alluded.[16] She had already said more than once in the VARE that RW had told her to do to him what she could see the females doing to the males in the video, and that she had done so.

79 During the special hearing, J was asked about whether RW had ever asked her to eat his penis:

[RW] or granddad has never asked you to eat his pee pee, has he? (Direct): No.

And [RW] or granddad has never put his penis in your bum (through interpreter)? Only once.

When was that, the one we spoke about? Yes.

So that was the only time? Yes.

When you had the Barbie pyjamas on? Yes.

And granddad has never put his penis in your mouth?

INTERPRETER: I think she said 'only once', 'no, only once'.

[DEFENCE COUNSEL]: Okay. When did he put his penis in your mouth? When I was in my room.

In your room. And what happened? (Direct): He came in my room.

Yes.

INTERPRETER: I am just asking her to tell me in [language], sorry.

[DEFENCE COUNSEL]: Yes? (Through interpreter): I don't remember.

Okay. So you don't remember him putting his penis in your mouth? I don't remember.

80 Later during cross-examination, J was asked again specifically if RW had ever put his penis in her mouth. The cross-examination that preceded these questions concerned her evidence of the phone video shown to her in the living room. That led to these questions and answers.

Okay. So, on that day where he showed you the video, he didn't - sorry, I withdraw that - on the day that you got shown the video ... he didn't put his penis in your mouth, did he? (Direct): No.

He's never put his penis in your mouth? No.

81 RW referred to R v NJM[17] in support of his contention that the answers at the special hearing effectively involved a retraction of the allegation relating to oral penetration. In NJM, there was evidence that the complainant had resiled from her complaint. Further, she admitted that she had lied on a number of occasions to the police and in her earlier evidence. She further admitted that the accused man had not forced himself on her, and that she was happy for him to have sex with her.[18] Plainly enough, the circumstances in NJM are materially different from those of the present case.

82 In the impugned passage, J said that RW did put his penis in her mouth, albeit 'only once'. The initial answer 'I don't remember' was not in response to whether RW had put his penis in her mouth. The next question 'So you don't remember him putting his penis in your mouth?' did not follow from her previous answers. The jury were not bound to view the second response, 'I don't remember', as a denial of her allegation.

83 At this stage of the cross-examination it had been some time since J had had a break. It appeared that she was relatively restless. Her initial answer confirmed that RW had put his penis in her mouth. It was well open to the jury to conclude that the answer which followed did not, having regard to the entirety of her evidence, raise a doubt as to her allegation.

84 The second line of questioning, before J was asked whether RW put his penis in her mouth, concerned the video on the phone shown to her in the living room. The cross-examiner moved from questions concerning this specific incident to a general question. Assuming that J heard the questioner clearly say 'He's never,' it is unrealistic to suggest that she should have appreciated that counsel had moved away from that occasion and was now putting to her that RW had never, on any occasion, placed his penis in her mouth. The cross-examiner had repeatedly asked questions, in which J's allegation that she had eaten his penis was referred to, but did not ask her whether her allegation was true. J had said on numerous occasions during cross-examination, without it being examined in any way, that RW had asked her 'to eat his willy' and that she had done so.

85 With the benefit of the instructive submissions of the prosecutor, the jury were alive to the view that some answers were no more than inaccurate contradictions, resulting from misunderstanding or a willingness to agree with suggestions. Only non-leading questions, much more explicitly referring to J's initial allegations on the VARE, would have eliminated the risk that apparent inconsistencies would be seen by the jury as inconsequential or inaccurate.

86 There was ample basis for the jury to conclude that J would not have appreciated that her allegation that the applicant placed his penis in her mouth was disputed, and to be satisfied that in answering the general question she was not resiling from her allegation. The two answers given in the special hearing did not, in our opinion, compel the jury to doubt all of the evidence she gave on the VARE and in cross-examination to the effect that RW placed his penis in her mouth.

87 We should for completeness observe that the trial judge refused to allow the prosecutor to ask J a question about what she had said on the VARE on this issue. The trial judge considered that would constitute cross-examination. With respect, that was an erroneous view. Unless the question (which had not yet been formulated) was suggestive of an answer, there would have been nothing improper in the prosecutor reminding J of something she had said in her evidence in chief during the VARE, and asking her whether what she said was true or false.

Ground 6: Charge 6 - Sexual penetration of a child under 16 (finger in anus)

88 As we have said, the conduct the subject of charges 5 and 6 was alleged to have occurred on the same occasion. It was alleged under charge 6 that RW had penetrated J's anus with his finger. She gave evidence on the VARE that RW was 'putting his hand in [her] bottom', and that he had put his hands in her bottom 'two times'. There was no cross-examination which distinguished between the two occasions the subject of the two charges. No argument was advanced at trial, or on appeal, that the evidence supported only one instance of RW placing his hand in J's bottom.

89 During the VARE, J described the circumstances as to charge 6 after she described RW asking her 'to eat' his penis:

O.K. So when you were eating it whereabouts was your body?

Straight, straight.

Yep. And what part of your body was eating grandpa's penis?

I don't know.

Have a think about it.

He was putting his hand in my bottom.

Mm'hm.

And I said, 'What are you doing? What are you doing?' He said, 'I'm putting my hands in your bottom.' And I said, 'Stop. I don't like it.'

Mm'hm.

'If you want me to eat it stop doing that.'

Mm'hm.

Your teeth. O.K. So when - can you show me with your fingers when you were eating grandpa's penis, what happened?

He put his hand in my bottom.

Mm'hm.

And I didn't say anything because I couldn't do - I couldn't say anything.

Mm'hm.

'Cause I was eating his penis'.

Yep. And why couldn't you say anything when you were eating his penis?

Because if I talk I was

(INTPRTR) Because the saliva - saliva.

I was .......... my saliva.

Mm'hm.

And I can't do that where I eat.

Mm'hm.

I can't eat and split - some other people can split by my mouth to someone else. Or I talk and eat I can split.

So when you were eating grandpa's penis, where was his penis in relation to your mouth?

I don't know.

O.K. When grandpa put his hands in your bottom, were you wearing clothes?

No.

No. Where were your clothes?

He said to get them out.

O.K. Tell me about that?

He said, 'Can you get your clothes out?'

Mm'hm.

And I said, 'Why?' 'Because you want me to - you want me to touch your bottom.'

Mm'hm.

I said, 'No way.' Then he said, 'Why?' And I didn't want that 'cause he said - got my clothes out and I got my clothes out because he said what my mum said, 'Whenever your grandpa says something you do it.'

O.K. When you were eating grandpa's penis how did you feel?

Very sad.

91 RW points to the alleged retractions by J that are relied upon in relation to charge 3.[19] She answered 'No' when asked whether RW ever touched her on the bottom, and answered 'I don't think so' when asked whether RW had put his finger in her bottom.

92 J was never asked whether what she had said about the specific acts which constituted charge 6 were untrue or whether they happened. For the reasons we have already given with respect to charge 3, it was open to the jury not to view the answers as a retraction of her allegation or as engendering a doubt about her account.

93 Ultimately, RW submits that the inconsistencies and contradictions in J's evidence were so many, and so stark, that the conviction should not be permitted to stand. We do not agree.

94 RW relies on this Court's decision in O'Reilly v The Queen.[20] The answers elicited from J are of a different character from those in O'Reilly. The recantations in O'Reilly came about as a result of direct questioning, limited to the specifics of particular charges. Having regard to J's age and capacity and the nature of the cross-examination, the answers relied upon by RW were not of a character that should have engendered a reasonable doubt as to any of the charges 1 to 6.

95 The application for leave to appeal raised important questions concerning the manner in which a child witness should be cross-examined. We would therefore grant leave to appeal but, for the reasons given, would dismiss the appeal.

The requirement of fairness to the vulnerable child witness

96 The starting-point is that the evidence of children is not inherently less reliable than evidence given by adults.[21] In Martin v The Queen,[22] this Court stated:

The ALRC Report No 102 observed that 'research shows that the evidence of children is not inherently less reliable than that of adult'. Child witnesses are not particularly susceptible to making false claims, but they are more likely than adults to recant or falsely deny allegations if they are under pressure or fear punishment. As explained in the ALRC Report, Seen and Heard, 'to avoid punishment, to keep promises not to tell or to avoid revealing embarrassing information, most children will deny knowing information about an event that they know occurred.'[23]

97 In its 1997 report 'Seen and Heard',[24] the Australian Law Reform Commission said that the contest between lawyer and child was an 'inherently unequal one'.[25] The Commission found that child witnesses were often taken advantage of, because they could be easily confused and intimidated; because they were unable to match the linguistic skills of experienced lawyers; and because, unlike the lawyer, they were in a 'hostile, alien environment'.[26] That inequality highlights the need to ensure fairness in examining a child witness.

98 The Bench Book published in 2013 by the UK Judicial College[27] states that, in order to treat children and other vulnerable witnesses fairly, there must be an awareness and understanding of their different circumstances, so that there can be effective communication and so that steps can be taken, where appropriate, to redress any inequality arising from difference or disadvantage.[28] Chapter 5 of the Bench Book deals with children and vulnerable adults and recognises that existing legislation and Conventions in a variety of jurisdictions[29] require courts and tribunals to adopt 'a more flexible approach' in accommodating their needs in the judicial process.[30]

99 In Victoria, the procedures for video-recorded evidence and for cross-examination at a special hearing are designed to address some aspects of those inequalities. Enabling the admission of audio-visual recordings reduces 'the stress imposed upon victims of sexual offences by the rigours of curial proceedings'.[31] These procedures protect child witnesses from having to give evidence before a jury, or in committal hearings, and so avoid what is recognised to be an extremely traumatic experience for children, particularly if exposed to what may be searching, aggressive or intimidating cross-examination.[32] The procedures under pt 8.2 of the Criminal Procedure Act 2009 reflect the conclusion that children's evidence is not inherently less reliable than that of an adult.[33]

The child's limited capacity to process questions and accurately respond

100 A child's immaturity necessarily limits their capacity to understand the process in which they are participating and to appreciate the importance of what they say when subjected to cross-examination. The UK Bench Book records that 'children have been shown to experience much higher levels of communication difficulty in the justice system than was previously recognised.'[34] The ability of the child to process questions will vary according to the maturity and intelligence of the child and the manner and content of the questions asked. As the Queensland Law Reform Commission reported in 2000, if the cross-examination is inappropriate in form or content, the child's evidence may become distorted and the child may wrongly be perceived as an unreliable and untruthful witness.[35]

101 As early as 1988, Mark and Roslin Brennan conducted research into the language used by counsel in the examination of children in court.[36] They said that the results of their testing programme showed that the language of the court was 'not well matched with the language capacities of the child.'[37] Similarly, in 2003, David Kerr, of the Victims' Support Service in South Australia, analysed the results of 18 prosecutions over a period of eight years, involving sexual offending against

101 children under the age of 15.[38] Kerr's assumptions when undertaking the research were that children would be asked questions in a language that they could not be expected, fully, to understand; and that children would be verbally intimidated, especially by defence counsel.

102 The conclusions of this and other research across Australia were summarised by David Caruso in 2012, as follows:

[S]tudies and investigations reveal cross-examination often involves questioning that upsets and intimidates the child. In addition, often the child cannot understand what they are being asked and is left confused and unsure. These tactics affect the clarity of the child's evidence. They also have a deleterious effect on the child personally, which often leads to negative impressions and inferences about the child's credibility. They are designed to do so. It is also apparent that courts are often unwilling or reluctant to intervene to temper or stop such cross-examination.[39]

103 Similar views were expressed by Annie Cossins in her article 'Cross-examination in child sexual assault trials: evidentiary safeguard or an opportunity to confuse?'[40] According to Cossins:

The child's vulnerability and the adversarial nature of cross-examination [combine] to produce a relationship of power easily exploited by defence counsel.[41]

...

The answers given by a child in response to cross-examination within this power relationship are highly suspect, not because of the qualities of the child, but because of the risk that confusion, suggestion and/or a child's deference to an authority figure will produce inaccurate evidence.[42]

The role of the 'intermediary' or specialist in other jurisdictions to assist the child witness and the use of 'Ground Rules' hearings

104 Other jurisdictions have introduced radical changes to address the unfairness to which a child may be exposed in curial proceedings. In the UK, the Youth Justice and Criminal Evidence Act 1999 introduced the role of 'intermediaries'[43] as a statutory special measure for prosecution and defence witnesses.[44] The Act provides for an intermediary to conduct a preliminary assessment of the witness's communication abilities and needs and to provide a preliminary report to the interviewing police officer. This assists in planning an 'Achieving Best Evidence Interview', with the intermediary intervening during the interview if necessary to assist the police officer on communication with the witness.

105 The intermediary then provides a report for the court and the parties based on their assessment of the child's communication needs and abilities. The report will make recommendations, with examples, as to how best to question the witness. The intermediary will sit with the witness while he/she gives evidence, and will communicate and explain the questions to the witness, and communicate and explain the witness's answers to the person asking the questions.[45]

106 The UK has also adopted what is known as a 'ground rules hearing'.[46] That hearing provides an opportunity for discussions between the trial judge and counsel to 'plan any adaptations to questioning that may be necessary to facilitate the evidence of a vulnerable person'.[47] The ground rules hearing approach has endorsed limitations on cross-examination in certain circumstances.

107 New South Wales recently enacted the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW), which, by amendments to sch 2 of the Criminal Procedure Act 1986 (NSW) established a three year pilot program using 'children's champions' (witness intermediaries) and the pre-recording of cross-examination of child complainants.[48] The role of the children's champion in New South Wales 'mirrors' the intermediary role in the UK.[49] Schedule 2, cl 88 of the Criminal Procedure Act 1986 (NSW) defines the role as follows:

(1) A person appointed as a children's champion (who may also be called a witness intermediary) for a witness is to communicate and explain:

(a) to the witness, questions put to the witness, and

(b) to any person asking such a question, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.

108 Most recently, the Victorian Law Reform Commission ('VLRC'), in its 2016 report 'The Role of Victims of Crime in the Criminal Trial Process',[50] recognised the need for intermediaries during the criminal trial process, both for child victims and for victims who have a disability that is likely to undermine the quality of their evidence. The Commission supported the introduction of intermediaries and recommended the necessary legislative amendment for that purpose.[51]

109 The likelihood of self-contradiction by a child, or misleading or inaccurate answers to certain types of questions, is now relatively well recognised. There is a range of possible innocent explanations for inconsistency of testimony. They encompass: intimidation; confusion; lack of understanding of the question; inability to process what is being put; acquiescence; and an over-willingness to agree with suggestions. There are numerous reported decisions in which apparent inconsistencies in the evidence have been attributed to the inherent difficulties in cross-examining children, rather than to any specific deficiencies in the evidence itself.[52]

110 We referred earlier to the AIJA Bench Book,[53] first published in 2009.[54] It explores two studies which 'raise serious issues about the appropriateness of cross-examination in order to test the accuracy of evidence of children aged between five and 13.'[55] The Bench Book summarised the findings as follows:

A study of court transcripts of the evidence of children in this age bracket in sexual abuse cases and controlled studies done in respect of children aged 5 to 6 years, demonstrated that the use of closed questions simulating cross-examination and usual cross-examination techniques resulted in 75% of the children studied changing at least one aspect of their evidence. In the controlled studies, which involved a true situation, closed questions, and a younger age group, 85% changed at least one aspect of their statement.[56]

111 In 2004 the Victorian Law Reform Commission published its final Report on Sexual Offences.[57] Chapter 5 dealt with 'Improving the System for Child Complainants'.[58] The Report noted that 'barristers are not trained to question children and may unintentionally confuse a child by using complex or inappropriate language.'[59] The VLRC also reported[60] on the communication techniques used in cross-examination, such as leading questions, repetitive questioning, closed statements requiring affirmation or rejection, double-barrelled questions or questions phrased negatively, which have been shown to confuse and mislead children.[61] The UK Bench Book similarly explored the types of questions most likely to produce unreliable answers from children.[62] It states:

Cross-examination techniques such as complex vocabulary and syntax and leading, multi-part questions have been demonstrated to mislead and confuse ordinary adult witnesses, undermining the accuracy and completeness of their evidence.[63]

1. The AIJA Bench Book provides a section involving 'good practices' for questioning children.[64] The suggestions appear under the following headings:

Phrasing questions positively rather than negatively;

Children's conceptualisation of time, frequency and ordering of events is gradually acquired;

Use the child's words to describe people, actions and objects;

Avoid 'front loading' questions that use a number of qualifying phrases before asking the crucial part of the question;

Avoid questions that may be taken too literally.[65]

113 The Uniform Evidence Manual, published by the Judicial College of Victoria, contains an appendix entitled 'Child Witnesses: Testing Competency and Questioning - A Practical Guide'.[66] This Guide has been developed by the College in conjunction with the Child Witness Service operated by the Office of Public Prosecutions. It outlines 'overarching principles to guide all questioning of all child/young witnesses', and then provides age-specific advice for questioning children.

114 Similar suggestions, with helpful illustrations, are contained in a 2011 report of the Inns of Court College of Advocacy, entitled 'Raising the Bar: the handling of vulnerable witnesses, victims and defendants in court'.[67] That report is aimed at providing best practice guidance in questioning a vulnerable person or someone with communication needs.[68] The report made the following suggestions as to the types of questions which should be avoided:

Tag' questions make a statement then add a short question inviting confirmation, for example, 'John didn't touch you, did he?' or 'John didn't touch you, right?'. They are powerfully suggestive and linguistically complex. Judicial guidance recommends that this form of question be avoided with children and that a direct question be put instead, e.g. 'Did John touch you?'; 'How did John touch you?'

Questions requiring a yes/no response: a series of propositions or leading questions inviting repetition of either 'yes' or 'no' answers is likely to affect accuracy. These questions carry a risk that an acquiescent person (i.e. someone with a tendency to answer 'yes', regardless of the question) will adopt a pattern of replies 'cued' by the questioner and will cease to respond to individual questions, leading to inaccurate replies. If only 'yes'/'no' questions are asked, it is difficult to determine if the person is having problems with the questions.

Questions in the form of statements (assertions), for example, 'You're not telling the truth, you wanted Jim out of your house', may not be understood as requiring a response. Better alternatives include: 'Did you want Jim out of your house?'

Questions/assertions repeated by authority figures: whether asked/stated consecutively or interspersed with others, these risk reducing the overall accuracy of a vulnerable person or someone with communication needs. For questions, this is because the person is likely to conclude that their first answer is wrong or unsatisfactory because somebody in authority is repeating the question. This may make the person 'go along' with the suggested answer, even if the person disagrees with it. If a question must be repeated (even with changed wording) for clarity, explain that you just want to check your understanding of what the person said, without implying the first answer was wrong: for example, 'Thank you, but I want to be sure I understand. Tell me again.' (followed by the question). For assertions, when someone in a position of authority formally suggests that something is a fact, it becomes extremely difficult for a person to disagree if necessary and to maintain verbally what they believe to be true. The person is likely to have a particular problem with an assertion in the form of a statement, viewing this as a comment and not appreciating that it requires a response.

Forced choice (closed) questions: these questions (for example, 'When you went to the flat, did John or Bill open the door?') create opportunities for error if the correct alternative may be missing. If asked open, free recall questions (e.g. 'What happened?'), vulnerable people or those with communication needs can provide accounts with accuracy rates broadly similar to the general population. In instances where forced choice questions are necessary, offer 'I don't know' as a last alternative.

Questions containing one or more negatives: these questions make it harder to decipher the underlying meaning. Negatives increase complexity and the risk of unreliable responses.

Questions suggesting the witness is lying or confused: these questions are likely to have an adverse impact on concentration and accuracy of responses because of the heightened anxiety often associated with vulnerable people.

115 As discussed in Part I of these reasons, an evaluation of the probative force of a child witness's testimony must take account of the form of the questions, as that may have affected the nature and quality of the answers. The need for such an evaluation arose in the UK Court of Appeal in R v W and M.[69] The two appellants were 10 year old boys, who had been convicted of raping an eight year old girl. The girl had told her mother that the boys 'had sex with her' and, when asked what she meant by sex, she said that they had 'put their willies inside her'.[70] This account was repeated to two police officers, and then during a police interview. During the course of cross-examination, counsel for the first defendant had put the following questions:

Q: [Defendant] did not put his willing in your bum, did he?

N: No

Q: [Defendant] did not put his willy in your Minnie, did he?

N: No[71]

116 Similar questions were posed by the second defendant's counsel. Counsel submitted that the above answers contradicted her earlier reports, and effectively constituted a retraction.[72] The trial judge disagreed, and eventually both boys were convicted of attempted rape. The boys appealed, on the ground that it was not properly open to the jury to conclude that the offences were proved. In dismissing the appeal, the Court of Appeal said:

There is undoubtedly a danger of a child witness wishing simply to please. There is undoubtedly a danger of a child witness seeing that to assent to what is put may bring the questioning process to a speedier conclusion than to disagree. To say that those risks plainly exist is not, as may have appeared at times during the argument in the court below, to offer any criticism whatever of the manner of cross-examination. It is particularly important in the case of a child witness to keep a question short, and even more important than it is with an adult witness where it also matters to avoid questions which are rolled up and contain, inadvertently, two or three at once.

...

We want to make it clear that we are quite sure that neither counsel cross-examined this child inappropriately. However, the risks which we have identified plainly existed. Most of the questions which produced the answers which were chiefly relied upon, unlike many others, constituted the putting of direct suggestions with an indication of the answer: 'This happened, didn't it?' Or: 'This didn't happen, did it?' The consequence of that is, as the judge remarked, that it can be very difficult to tell whether the child is truly changing her account or simply taking the line of least resistance.[73]

117 As we said earlier, cross-examination of a child presents particular challenges for counsel. Counsel will not wish to cross-examine aggressively, first because they will not wish to unduly distress the witness, and second because such cross-examination is likely to have a negative effect on the tribunal of fact. In the 2004 VLRC Report,[74] the Commission recognised the difficult balance which must be struck between a 'rigorous testing of the evidence' on the one hand, and not intimidating or frightening the child witness on the other.[75]

118 The 2011 'Raising the Bar' report[76] (above) made a number of observations in relation to appropriate questioning of child witnesses, while emphasising that the obligation remains for counsel to explore the defendant's case with the witness:

Particular care and preparation is necessary when considering how to put the defendant's case to a child complainant. In R v B, the Court of Appeal recognised the need for an advocate to adapt his approach to employ forensic techniques suitable for questioning a child witness. The judgment, however, needs to be examined with considerable care: there is no suggestion on the part of the Court of Appeal that defence advocates should be prevented from putting the defendant's case to a child witness, or from asking any other relevant questions that can only be dealt with by that particular witness. Key to a successful approach is recognising that one size does not fit all, and that where the advocate's technique requires modifying, training should explore means of challenging evidence without confusing the witness. The real skill of formulating short, simple questions can be taught and learnt, and the practice in formulating such questions repays the effort - and sometimes, humility - involved.[77]

119 Despite the particular forensic difficulties in cross-examining a child, the primary purpose of cross-examination is to 'cast doubt upon the accuracy of the evidence in chief given against' that party.[78] That purpose also coincides with counsel's obligation of fairness as expressed in the rule in Browne v Dunn. In Rees v Bailey Aluminium Products Pty Ltd,[79] this Court said that the rule rests upon notions of fairness and is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge.[80]

120 Importantly, the rule also facilitates the tribunal's assessment of the reliability and accuracy of the witness. Consequently, if matters in controversy are not 'put' to the witness in cross-examination, the tribunal's capacity to assess the merit of the allegation, and the credit of the witness, is likely to be impeded. In R v Morrow,[81] these purposes of the rule were repeated in the context of a criminal trial. Redlich JA (with whom Nettle JA and Lasry AJA agreed) said:

The rule, resting upon notions of fairness, is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal's assessment of the reliability and accuracy of the witness. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness_,_ and diminishes the tribunal's capacity to assess the merits of the issue.[82]

121 It is assumed that an adult witness has the cognition, and the independence of will, to reject questions which contain a suggestion or assertion of the existence (or non-existence) of a particular fact. Such assumptions cannot be made in the case of a child witness. As already noted, a child's vulnerability and the likelihood that they will assent to suggestive questions increase the risk that the child will give answers that are contradictory. As Bowden, Henning and Planter observed:

The rule in Browne v Dunn requires all relevant propositions that will later be relied on to be put to a witness. However, it is established that children and persons with intellectual disabilities are likely to become confused and either change their version of events or acquiesce in a contradictory account when challenged. Challenging a vulnerable witness's testimony in accordance with Browne v Dunn and suggesting an alternative version of facts may not advance the pursuit of truth.[83]

122 As we said at the outset, cross-examining counsel seeking to impugn the credibility or reliability of the child's account has two overlapping obligations to discharge. The first is counsel's obligation to the accused person, to seek to cast doubt on the complainant's evidence. The second is the obligation of fairness to the child complainant, expressed in the rule in Browne v Dunn. Discharge of that obligation requires that the child be given a fair opportunity to make clear whether he or she adheres to the account given in the VARE. The obligation being an aspect of procedural fairness, its content varies according to the circumstances of the case.[84] We are concerned here with its content in the case of a child witness whose age or capacity renders them vulnerable.

123 In our view, discharge of these obligations will ordinarily require counsel to address those specific allegations made by the child which the defence disputes. Simply to 'put' matters which the child accepts will be unlikely, for the reasons already explored, to discharge either obligation.

124 As we have said, a child cannot be expected to respond to option-posing, suggestive or assertive questions in an explanatory or expansive way. Thus, acceptance of a proposition by the child may not result in any forensic gain to the cross-examiner. As Maxwell P observed during oral argument, it will not ordinarily be fair unless the cross-examiner in an appropriate way asks the child whether what she has said is true or whether the alleged act occurred. If that is not done, the child is not given the opportunity to make their position clear.

125 Although it is ordinarily a matter for counsel how they choose to cross-examine, fairness dictates that counsel should only ask questions in a form that is appropriate to the age of the child. As to compliance with the rule in Browne v Dunn, if counsel does not give the child a fair opportunity to respond to the attack that is to be made on their evidence, counsel runs the risk that their opponent, or the judge, will take the view that there has been a breach of the rule. Moreover, if they do not give the child the opportunity to state whether they maintain their initial account, the tribunal's ability to assess the merits of the issue is thereby diminished. As a result, counsel will not have satisfied their forensic purpose, which is to elicit evidence which may cause the tribunal to doubt the child's primary allegations.

126 Of course, to ask the child whether their allegation is true, or whether the event they have described actually happened, may result in the child confirming the allegation. But that is a risk which always inheres in the discharge of the rule with every witness, whether adult or child. In the case of an adult, however, leading questions, and direct 'puttage', are permitted because the law presumes that the adult witness is able to understand that their account is challenged and can respond accurately to such a form of question.

127 If counsel employ indirect or subtle methods in order to produce arguable inconsistencies with the child's primary allegations, the risk remains, as Whelan JA observed on the hearing of the appeal, that the jury will not be persuaded that the nature of the inconsistencies is such as to cause them to doubt the child's account. Counsel still have considerable latitude in the way in which they can explore the child's primary evidence. But, if the questions are unclear, or move suddenly from the specific to the general, or are suggestive or assertive, the jury may treat the evidence in chief (the VARE) as untouched by the cross-examination and hence as the witness's accurate and reliable account. The same risk exists if the answers elicited are ambiguous or can be viewed as not definitively stating the child's position on a matter of controversy.

128 Whether the inconsistencies that emerge do raise a doubt about the witness's allegations will depend upon the circumstances of the case. But the forensic risk should be recognised that jurors, applying their common sense and aided by closing submissions and the judge's directions, may take the view that, because of the circumstances in which the particular inconsistencies have emerged or are expressed, they are not to be viewed as a material qualification or retraction of the witness's primary allegations.

129 The trial judge has an overarching duty to ensure a fair trial.[85] Their judicial authority, independent of objections, requires them to ensure that counsel observe accepted standards in the manner in which evidence is elicited.[86] A primary function of the trial judge is to control questioning that could jeopardise a fair trial.[87]

130 Section 41 of the Evidence Act 2008 empowers the court to disallow an 'improper question' put to a 'vulnerable witness' (defined to include a witness under the age of 18). The question will be improper if it is 'misleading or confusing'. [88] An identical provision was described by the Tasmanian Law Reform Commission last year as having an 'element of uncertainty.'[89] The Commission considered that 'control of cross-examination was critical if reliable evidence is to be obtained from people with complex communication needs.'[90] It explored the feasibility of instituting a 'communication assistant/intermediary scheme' in Tasmania for people with 'complex communication needs' involved in the criminal justice system, similar to that in NSW.

131 Section 42 of the Evidence Act 2008 provides a trial judge with ample power to disallow leading questions having regard to the age of the witness.[91] Where the judge concludes 'that the facts concerned would be better ascertained if leading questions were not used' the judge is to disallow leading questions.[92]

132 Some County Court judges as a matter of practice hold a pre-evidence hearing, at which the parties can discuss the capacity of the child witness.[93] With respect, the introduction of such hearings seems to us to be a most enlightened initiative. There are obvious benefits in a prehearing of this kind, which is similar to the 'ground rules' hearing in the UK.

133 The applicable Practice Note[94] requires the prosecution to inform the court, in the case of a child complainant, about the child's 'ability in giving evidence'. It may become apparent at the pre-hearing that an expert (to be engaged by the Crown) will assist the Court in better understanding the capacity of the child. The parties may agree as to what types of questions will be appropriate in cross-examination. Failing agreement, the judge may foreshadow a disposition not to allow certain types of questions. Or, where it is clear from the material available to the judge, including the child's VARE, the judge may disallow particular questions because of their form or content. Such a pre-trial hearing will in most cases reduce the prospect of the judge having to intervene during the trial. And it will provide defence counsel with guidance as to the form which the cross-examination may take.

Re-examination as to allegations made on the VARE

134 The ability by re-examination to clarify matters left uncertain, re-establish credit or remove doubts about reliability is often overlooked. If the cross-examination bears upon facts initially referred to in evidence in chief (such as the VARE), the witness may be re-examined to ascertain whether they adhere to those facts.

135 Where the purpose of the cross-examination was to discredit an allegation made by a child in evidence in chief, or to raise questions as to its reliability, prosecuting counsel may in re-examination ask the child whether a particular statement made on the VARE is true or false. Particularly when defence counsel has elicited arguable inconsistencies, but has not taken the child to the terms of her allegations on the VARE and asked whether they are true, it would be entirely appropriate to do that in re-examination.

PART 3 - APPEAL AGAINST SENTENCE

136 Following a plea hearing conducted on 11 September 2015, RW was sentenced on 29 October 2015 as follows:

[Crimes Act 1958 s 47(1)]

Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)]

• Sentenced as a serious sexual offender on charges 3, 4, 5 and 6
• Reporting period of life pursuant to Sex Offender Registration Act 2004

137 In fixing sentence her Honour found that there remained a risk that RW may offend again if given the opportunity to have regular close contact with a female child and considered that specific deterrence must be given substantial weight.

138 RW maintains that the total effective sentence and non-parole period are manifestly excessive. RW conceded that the offending was very serious, and included a number of aggravating features. He acknowledged that each individual sentence was within the range of appropriate sentences, but submitted that the total effective sentence and non-parole period are manifestly excessive, when regard is had to the matters relied on in mitigation.

139 As this Court recently restated in Nam Son Nguyen v The Queen,[95] comparable cases play an important function in advancing the 'underlying value of equality under the law and the search for unifying principles in the task of sentencing.'[96] The Crown, in their written submissions, point to cases such as R v XB,[97] PG v The Queen,[98] LQ v The Queen,[99] PT v The Queen,[100] which are found in the Victorian Sentencing Advisory Council's 'Sentencing Snapshot' for the offence of sexual penetration with a child under 12.[101] The Crown submits, having regard to the breach of trust and the seriousness of the offending, none of the mitigating features were such as to demonstrate that the total effective sentence was beyond the appropriate range. We accept that submission. There does not appear to be anything remarkable about the sentences imposed on the individual charges, nor do the orders for cumulation result in a sentence that is wholly outside the available range.

140 On the plea the sentencing judge was asked to impose a non-parole period which was shorter than might otherwise be appropriate, having regard to RW's age, the burdensome nature of prison and his previous good character. Although the judge accepted each of these mitigatory factors, she gave no reason for fixing the parole period which she did. RW submits that, while it is clear that there is no

'usual' non-parole period,[102] the imposition of a non-parole period representing nearly 78 per cent of the head sentence was not justified if proper weight had been given to those mitigating factors.

141 We reject this submission. As we have said, the sentencing judge accepted each of the mitigating factors which RW relied upon: his previous good character; the fact that he had been hard working throughout his life; that prison would be more burdensome; and that, in view of his age, she should avoid imposing a crushing sentence. There is nothing in the circumstances of this case which, in our view, obliged the judge to fix a lower non-parole period than she did. Leave to appeal must be refused.

142 I have read in draft the judgment of the President and Redlich JA ('the joint judgment').

143 I agree that the application for leave to appeal the convictions should be granted but that the appeal should be dismissed. Leave to appeal should be granted because the proposed grounds are arguable. The conviction appeal should be dismissed for the reasons set out in part 1 of the joint judgment.

144 As to part 2 of the joint judgment, there is a clear tension between adherence to the rule in Browne v Dunn, as traditionally understood, and the particular considerations which arise in relation to child witnesses, as set out in the academic studies, the various law reform commission reports, and the bench books and other materials referred to in the joint judgment. It seems to me that that tension has now been resolved in England by, in effect, abrogating the rule in Browne v Dunn in such

145 At the trial, the issue of the application of the rule in Browne v Dunn could have arisen if the judge had restricted cross-examination, as is done in England, or if a failure to comply had been asserted and the judge had directed the jury on the rule. Neither of those things happened. The application of the rule was not an issue at the trial.[104]

146 In this application and appeal the issue of the application of the rule in Browne v Dunn arose in the course of oral submissions. It had not been addressed in either of the written cases. The academic and other material referred to in the joint judgment, and the English authorities on the issue, were not the subject of submissions.

147 I do not consider this to be an appropriate occasion to determine whether, or how, the rule in Browne v Dunn should apply generally to cases such as this. It is unnecessary to do so in order to determine this appeal. The relevant issue for the determination of this appeal is not the application of the rule in Browne v Dunn but rather whether the cross-examination which did occur was such as to require a verdict of not guilty because the child witness had retracted her allegations or had given contradictory evidence raising a sufficient doubt as to their veracity. For the reasons given in the joint judgment the jury was not bound to conclude that the cross-examination had had that effect, notwithstanding some apparent contradictions. I make no criticism of trial counsel in that regard, nor, as I read it, does the joint judgment.

148 I agree with the observations in part 2 of the joint judgment as to the significant benefits likely to be obtained from the introduction of 'intermediaries', as recently recommended by the Victorian Law Reform Commission; and as to the obvious benefits of pre-evidence (or 'ground rules') hearings at which the capacity of a child witness can be discussed.

149 I agree with the observations in the joint judgment concerning what occurred in the re-examination.

150 The application for leave to appeal sentence should be refused for the reasons given in the joint judgment.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[3] See Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478, 488 [21].

[4] R v NRC [1999] VSCA 184; [1999] 3 VR 537, 540 [7].

[5] The Australasian Institute of Judicial Administration Incorporated 'Bench book for children giving evidence in Australian courts' (Bench Book, Australasian Institute of Judicial Administration Incorporated, December 2012) ('AIJA Benchbook').

[6] Judicial College of Victoria, Uniform Evidence Manual (at 2016) Appendix A: Testing Competency and Questioning - A Practical Guide' (the 'Practical Guide').

[7] DPP v [Ward] (Unreported, County Court of Victoria, Judge Patrick, 29 October 2015) [8]-[11] ('Reasons').

[8] [2015] VSCA 19 ('O'Reilly').

[10] See JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187, 189.

[11] Klamo v The Queen [2008] VSCA 75; (2008) 18 VR 644, 654 [40].

[12] The Crown opening indicated that this was a different occasion than the occasion on which charge 2 was said to have occurred.

[13] That is a reference to being shown pornography on the camera.

[15] 'Thing' was then qualified as to be his 'penis'.

[16] Martin v The Queen (2013) 46 VR 537, 549 [52].

[17] [2001] VSCA 235; (2001) 126 A Crim R 378 ('NJM').

[20] [2015] VSCA 19 ('O'Reilly').

[21] JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187, 189.

[22] (2013) 46 VR 537 ('Martin').

[23] Ibid 544 [27] (citations omitted).

[24] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997).

[27] Judicial College, 'Equal Treatment Bench Book 2013' (Bench Book, Judicial College UK, September 2015) ('the UK Bench Book').

[29] Ibid [5-1]. The bench book cites the following: The bench book cites the following: Equality Act 2010 (UK); Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature , as amended by Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, ETS No 9 (entered into force 18 May 1954), as amended by Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 11 May 1994, ETS No 155 (entered into force 1 November 1998) and Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 13 May 2004, CETS No 194 (entered into force (1 June 2010); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); Convention on the Rights of Persons with Disabilities, GA Res 61/106, UN GAOR, 61st sess, 76th plen mtg, Doc A/RES/61/106 (204 January 2007); Directive 2012/29/EU of the European Parliament and of the Council of 25 October establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L 315/57.

[31] R v NRC [1999] VSCA 184; (1999) 3 VR 537 [7] (Winneke P).

[32] Martin (2013) 46 VR 537, 544 [26].

[34] UK Bench Book, above n 27, [5-1].

[35] Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report No 55 (2000) 266 (citations omitted).

[36] M Brennan and R E Brennan, Strange Language: Child Victims Under Cross-examination (3rd ed, Riverina Murray Institute of Higher Education, 1989).

[38] David Kerr, 'Legally Abused: The Child Sexual Assault Victim in the Adult Criminal Court' (Paper presented at the Child Sexual Abuse: Judicial Response or Alternative Resolution Conference, Adelaide, May 2003).

[39] David Caruso, 'Proposed reforms for the cross-examination of child witnesses and the reception and treatment of their evidence' (2012) 21(4) Journal of Judicial Administration 191, 196-7.

[40] Annie Cossins, 'Cross-examination in child sexual assault trials: evidentiary safeguard or an opportunity to confuse?' [2009] MelbULawRw 3; (2009) 33 Melbourne University Law Review 68.

[43] See Youth Justice and Criminal Evidence Act 1999 (UK) s 29.

[44] UK Bench Book, above n 27 [5-11].

[45] Youth Justice and Criminal Evidence Act 1999 s 29(2).

[46] Criminal Practice Directions 2015 (UK), s 3e: 'Ground rules hearings to plan the questioning of a vulnerable witness or defendant'.

[47] UK Bench Book, above n 27 [5-14].

[48] Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW). The Act amends the Criminal Procedure Act 1986 (NSW) Sch 2, pt 29, s 88-89. Note, unlike Victoria, New South Wales previously did not provide for pre-recording of children's evidence.

[49] Penny Cooper, 'A double first in child sexual assault cases in NSW: Notes from the first witness intermediary and pre-recorded cross-examination cases' (2016) 41(3) Alternative Law Journal 191.

[50] Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016).

[51] Ibid 174 (Recommendations 30 and 31).

[52] See, for example, R v M [2000] QCA 20; R v DP [2007] VSCA 219; (2007) 176 A Crim R 382, 389 [32]; Bowles v State of WA [2011] WASCA 191 [61]; SLJ v The Queen (2013) 39 VR 514, 522 [33]; Martin v The Queen (2013) 46 VR 537, 544 [27], 546 [35], 551-2 [64]-[66], 553 [73].

[57] Victorian Law Reform Commission, Sexual Offences: Final Report, Report No 78 (2003-2004).

[61] Ibid 167 [7.196] (citations omitted).

[62] UK Bench Book, above n 27 [5-17].

[64] AIJA Bench Book, above n 5, 75 [3.6]

[67] Advocacy Training Council, 'Raising the Bar: the handling of vulnerable witnesses, victims and defendants in court' (Report, Advocacy Training Council, March 2011).

[68] The Advocate's Gateway 'General principles from research, policy and guidance: planning to question a vulnerable person or someone with communication needs' (Toolkit No 2, The Advocate's Gateway, November 2015).

[69] [2010] EWCA 1926.

[74] Victorian Law Reform Commission, above n 57.

[76] Advocacy Training Council, above n 67.

[78] The Hon D Heydon, Butterworths, Cross on Evidence, vol 1 (at Service 185) [17430].

[79] [2008] VSCA 244; (2008) 21 VR 478.

[81] [2009] VSCA 291; (2009) 26 VR 526.

[82] Ibid 539 [47]-[48] (citations omitted).

[83] Bowden, Phoebe; Henning, Terese; Plater, David 'Balancing fairness to victims, society and defendants in the cross-examination of Vulnerable Witnesses: An impossible triangulation?' [2014] MelbULawRw 1; (2014) 37(3) Melbourne University Law Review 539 (citations omitted).

[84] Eastman v The Queen (1997) 76 FCR 9, 101-2.

[85] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 577 [35] ('Libke').

[86] Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478, 504 [87].

[87] Libke [2007] HCA 30; (2007) 230 CLR 559, 577 [35] (Kirby, Callinan JJ), 590 [84]-[85] (Hayne J with whom Gleeson CJ and Heydon J agreed).

[88] Tasmanian Law Reform Commission_, 'Facilitating Equal Access to Justice: An Intermediary/Communication Assistant Scheme For Tasmania,_ Issue Paper No 22 (2016) 3.3.8.

[91] Section 42(2)(d).

[92] Section 42(3).

[93] Meryl Sexton, 'Communicating with children and young people' (Paper presented to Judicial College of Victoria, 19 October 2015).

[94] Supreme Court of Victoria PNCR 1-2015.

[95] [2016] VSCA 198.

[97] [2009] VSCA 51.

[98] [2013] VSCA 9.

[99] [2011] VSCA 135.

[100] [2011] VSCA 43.

[101] Sentencing Advisory Council, Sentencing Trends for Sexual Penetration with a Child Aged Under 12 in the Higher Courts of Victoria 2009-10 to 2013-14, Snapshot no 180 (June 2015).

[102] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 523-534 [36]-[45]; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 131-132 [26]-[32]; Wallace v The Queen [2012] VSCA 114; (2012) 35 VR 520, 521 [2]; Borthwick v The Queen [2012] VSCA 180.

[103] The Criminal Division of the Court of Appeal in England has rejected the 'traditional style' of cross-examination in cases of this kind and has rejected the proposition that advocates have a 'right', much less a duty, to put a case or inconsistences to a child witness: R v Lubemba; JP [2014] EWCA Crim 2064 [45]. The progression of English authority to this point may be traced through the following authorities: R v B [2010] EWCA Crim 4 [42]; Wills v The Crown [2011] EWCA Crim 1938 [19], [23], [39]; R v Edwards [2011] EWCA 3028 [7], [28]. This approach is also adopted in the Judicial College, 'Equal Treatment Bench Book 2013' (Bench Book, Judicial College, November 2013) [5-16], [5-18], in the Court of Appeal (Criminal Division), Criminal Practice Directions [2015] EWCA Crim 1567 [3E.4], and in The Advocate's Gateway, 'General Principles from Research, Policy and Guidance: Planning to Question a Vulnerable Person or Someone with Communication Needs' (Toolkit No 2, November 2015) [4.9]. These authorities and materials were not the subject of submissions in this application and appeal. Accordingly, this review of the position in England may not be complete.

[104] Counsel for the prosecution did rely on defence counsel's failure to put matters in his response to a no case submission (see Prosecution Response to No Case Submission at [3], [17], [24], [35], [42], [47], & [55], and in his final address at, for example, Transcript of Proceedings (16 June 2016) 14.7-14.13) but it was not suggested there had been a failure to comply with Browne v Dunn.