Woods (a Pseudonym) v The Queen [2014] VSCA 233

Woods (a Pseudonym) v The Queen [2014] VSCA 233 - VSCA 2014 case summary — Zoe

[76]

You've given evidence about two physical assaults that occurred at the hands of [the appellant]. Remember giving that evidence?---Yes.

One was on 29 June 2011, correct?---Yes.

And the other one was before that?---Yes.

The one that happened first in time, after you were assaulted, what you say is that you contacted the leader of student services, correct?---Yes.

And then following that you were referred to the Department of Human Services?---Yes.

Once referred to the Department of Human Services, your case worker was .......?---Yes.

When you first made the complaint to the leader of student services, you said nothing, or you alleged nothing about your father having sexually abused you, is that right?---Yes.

And later, when you were referred to [the case worker], you said nothing to her at the time about being sexually abused by [the appellant], correct?---Correct.

So the first time that you say anything or disclose anything whatsoever that involves allegations of a sexual nature is on the day of 29 June 2011?---Yes.

On 29 June when you made disclosures about the assault and, in particular, the sexual assault, you were removed from the house at .........., weren't you?---Yes.

In contrast to the first time when you made allegations of a physical nature only, where you stated that you were at your Nan's for a couple of days and then you had to go home?---I beg your pardon.

That was the second occasion when you made the allegations of sexual abuse, you were removed from home?---Yes.

On the first occasion, when you made allegations of a physical, non-sexual nature, you returned back to the house, didn't you?---Yes.

You recall in one of the interviews mentioning to Mr McCarthy that you had regular dreams of falling?---Yeah.

Is that the case?---Yes.

Either from a cliff or a building?---Yes.

That is a recurrent dream that you have, is it?---Yes.

Am I right in saying that that dream is so real to you that sometimes you wake up from that dream finding yourself clinging on to the mattress and the bed?---Yes.

So would you say that you have a very vivid imagination?---What does vivid mean?

Strong?---No.

Because those dreams that you have where you find yourself clinging on to the mattress when you wake up, they are obviously not real, are they, they are just dreams?---Yes, they are just dreams.

Just things that are going on in your mind whilst you're asleep?---Yes.

If I said this, that just like those falling dreams, the allegations that you make against [the appellant] that are of a sexual nature, they are not real either, would I be right about that?---No, you wouldn't be right.

Would I be right in suggesting to you that your allegations of sexual abuse are just stories that you have made up in your mind?---No, you wouldn't be right with that either.

Did you just add the allegations of a sexual nature the second time after you were assaulted so you could get out of the house and get away from [the appellant]?---No.

Are you sure about that?---Yes, I'm sure about that.

But it worked, didn't it, when you made those allegations of a sexual nature, it worked, didn't it? That got you out of the house?---Yes.

[89]

...it flies in the face of reason that she'd make all of this up, and carry it off because of that; that's what I say to you, so you can just put that motive where it belongs - in the trash can. But I've got to say something else about motive, and it's this, and His Honour will give you a direction of law about this, but I want to make sure that you understand it right now.

The Judge will tell you that just because you reject any possible motive put up by the defence in this case, doesn't mean that there might not be another one, unknown to the defence, and it doesn't mean, automatically, that the accused is guilty. Now he will give you a direction about that much more eloquently than I can express it, but you could understand this proposition: If someone tells a lie about you, you might know the reason they did it, or you might think you do, or you might never know. You just might be at a complete loss to know, and obviously, consistent with the rule that the prosecution has to prove the case here, against the accused man, and that the accused doesn't have to prove a thing. He doesn't have to prove a motive, or even point to a potential motive. There's no onus of proof falls on his shoulders. So, if you reject the motive that's being put up, which, I'm very confident you will reject that motive, but it's a matter for you, if you reject that, put it to one side and forget it, concentrate of what the Crown case is, what the evidence is in relation to the charges, not whether or not the accused man can point to a reason why this girl might lie or otherwise, and it's not really a black and a white question. You don't say to yourselves 'Well, is this girl lying?' 'Yes, possibly.' 'Not guilty?' 'No, she's not lying.' 'Guilty.' It's not as simple as that. It might ultimately come down to being that simple in this case, because everything she says is said to be a lie, but the question is, are you satisfied beyond reasonable doubt that the offences, that is, that the acts she describes, happened. That's the question you ultimately ask yourself. Not is she a liar, and I hope you understand that. I'm focusing on what the defence says, but that's the question that you ultimately have to ask yourself.

[97]

When she makes the allegation of a sexual nature, she's out of the house. Bang. Bingo. A girl in grief, without her mother, makes a knee-jerk complaint immediately following an incident with her father. She's fed up, she wants out, it doesn't work.

Understandably aggrieved, when it happens again, given her particular personal circumstances, it's not an understatement to submit to you - not that she's malicious, malevolent, sophisticated, a monster simply to suggest to you that she's desperate - desperate to get out of the house.

So desperate, it's submitted, that she's prepared to stretch the ambit of reality in a few written words on a note of paper to [the chaplain]; not foreshadowing, not having any idea of what would follow. She wasn't expecting police, and the whole fanfare that comes with an ordinary investigation of a sexual nature. You'll recall the evidence of [the chaplain]. She discloses the smacking incident first. There's no intermission between that disclosure and her next disclosures insofar as [the chaplain] saying to her well that's a big deal, we've got to get the authorities involved. I've got to go and speak to the assistant principal. That doesn't happen. Just takes the next step in desperate circumstances.

Now this whole sophisticated - this whole idea of a sophisticated detailed lie doesn't start there and then, it's very basic, it's very simple, what she says. It only unfolds in exactly the same manner that you would expect, because she has to keep going back to the police station, and she's kept asked - and she's kept being questioned and questioned and questioned, and it's only from those questions that we get this whole story.

So once that note, once the ink drips onto that piece of paper there's no going back, the cat's out of the bag, your phone is immediately called, police, DHS, they're all in attendance, and they seize responsibility of the situation. There's no going back for [the complainant]. The situation was now out of her hands, out of control. After she speaks to [the chaplain] arrangements are made for her to speak to the police.

[99]

Let me turn to another issue concerning motive to lie. In this case it was argued that [the complainant] had a motive for falsifying allegations against her father. [Counsel for the appellant] contended that [the complainant] was desperate to get out of home, that her mother was in hospital, her brother had been killed in the accident in which her mother had been hurt and that she felt keenly about her father's physical disciplining of her. A previous complaint about her father striking her had not had the desired effect of getting her out of the ... home.

The prosecution disputed this claim, submitting that [the complainant] had no such motive. [Counsel for the prosecution] argued that [the complainant's] complaints were very detailed, including the accompanying words used by her father when acts of sexual abuse occurred and that it was improbable that a 13 year old girl would be capable of concocting such an elaborate set of lies for the purpose of getting out of home.

It is important that you understand that if you accept this submission by the prosecution and reject the defence argument that [the complainant] was lying because she wanted to get out of home, that is not the same as accepting that [the complainant] was telling the truth. All you are doing is eliminating one possible reason for rejecting [the complainant's] evidence. It is still possible that she was lying. She may, for example, have a motive for lying that [the appellant] does not know about. Just because you have rejected one possible motive does not mean that there cannot be another. Similarly, rejecting the motive suggested by the defence will not make [the complainant's] evidence any more credible. You must assess [the complainant's] credibility on the basis of her testimony and consideration of the other evidence in the case, not on the basis of whether [the appellant] could tell you why she might be lying.

Remember, ladies and gentlemen, it is for the prosecution to prove beyond reasonable doubt that [the complainant] is telling the truth. The accused is not required to prove his innocence, or to prove that [the complainant] had a reason for making false allegations. You can only convict [the appellant] of any offence on the basis of all of the evidence you do accept and you are satisfied of his guilt beyond reasonable doubt.

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Judgment (167 paragraphs)

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Cases Cited (11)