Cookson v The King [2024] VSCA 289 (27 November 2024)

Last Updated: 27 November 2024

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0157

RICHARD COOKSON (a pseudonym)	Applicant

v

THE KING	Respondent

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JUDGES:	McLEISH, BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2024
DATE OF JUDGMENT:	27 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 289
JUDGMENT APPEALED FROM:	DPP v Cookson (a pseudonym) (County Court of Victoria, 15 November 2022 (Conviction), Judge D Sexton)

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CRIMINAL LAW – Appeal – Conviction – Child complainant – Course of conduct charges – Alleged inconsistencies and discrepancies in evidence of complainant and with evidence of others – Whether jury acting rationally must have entertained reasonable doubt about applicant’s guilt – M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, applied – Measure of inconsistency expected in evidence relating to course of conduct charges covering substantial part of child complainant’s life – Resolution of evidentiary issues within province of jury – Application for leave to appeal refused.

CRIMINAL LAW – Evidence – Incriminating conduct – Applicant punched hole in wall after learning complainant at police station – Complainant likely to be reporting allegations against applicant – Trial judge determined conduct reasonably capable of being viewed by jury as incriminating conduct – Innocent explanation for conduct – Angry response to fact of allegations being reported irrespective of whether truthful – Jury could not dismiss innocent explanation for applicant’s conduct – Trial judge erred – Evidence could have made difference to result of trial – Substantial miscarriage of justice – Appeal allowed.

Jury Directions Act 2015 ss 20, 21, 22.

DPP v Lynn [2024] VSCA 62; R v Ciantar [2006] VSCA 263; (2006) 16 VR 26; DPP v Scriven [2015] VSC 220, applied.

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Counsel
Applicant:			Mr C Wareham with Mr C Tom
Respondent:			Mr L McAuliffe

Solicitors
Applicant:			Victoria Legal Aid
Respondent:			Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

PART A: BACKGROUND 2

PART B: PROPOSED GROUNDS 1–3 — WHETHER JURY’S VERDICT ON CHARGES 1–3 UNSAFE 9

PART C: PROPOSED GROUND 4 — WHETHER EVIDENCE OF INCRIMINATING CONDUCT ADMISSIBLE 23

PART D: CONCLUSION 31

McLEISH JA

BOYCE JA

KAYE JA:

On 15 November 2022, following a trial by jury, the applicant was found guilty of three charges of sexual penetration of a child or lineal descendant^[1] and one charge of common assault.
The offending was alleged to have been committed against the applicant’s daughter Suzette.^[2] Charges 1–3 were course of conduct charges alleging vaginal, anal and oral penetration respectively, between 1 January 2019 and 19 October 2021. Charge 1 alleged penetration by the applicant’s penis or a finger; charges 2 and 3 alleged penile penetration. The common assault constituting charge 4 was alleged to have taken place during September or October 2021, by the applicant hitting Suzette in the face and causing her head to slam into a mirror.
The applicant’s case at trial was that Suzette’s account of the offending was false. He said she lied because she felt left out within her family, receiving less attention than her brother Sonny.
The trial commenced on 4 November 2022. Verdicts of guilty were entered on 15 November 2022 and the applicant was sentenced on 9 August 2023 to a total effective sentence of 13 years and 9 months’ imprisonment.
On 24 January 2024 the applicant was granted an extension of time within which to seek leave to appeal against conviction. The applicant seeks to raise the following four grounds:
1. The verdict of the jury on charge 1 was unreasonable or cannot be supported having regard to the evidence.
2. The verdict of the jury on charge 2 was unreasonable or cannot be supported having regard to the evidence.
3. The verdict of the jury on charge 3 was unreasonable or cannot be supported having regard to the evidence.
4. The learned trial judge erred in ruling that evidence the subject of the Notice of Incriminating Conduct was admissible.^[3]
For the following reasons, we would refuse leave to appeal on grounds 1 to 3, but grant leave to appeal on ground 4 and allow the appeal.

PART A: BACKGROUND

Suzette was 5–7 years old during the period of the alleged offending, having been born in December 2013. She lived with the applicant, her mother (Amanda Morrison,^[4] who was engaged to be married to the applicant) and her younger brother Sonny (who was 1–3 years old).
On 12 October 2021 Suzette’s school teacher, Andrew Venables, overheard Suzette telling a classmate that the applicant had smashed her head into a mirror causing the mirror to shatter. Suzette reported that same incident to Mr Venables later that day. She also told him that Ms Morrison had hit her in the head and kicked her in the chest. Mr Venables filed a mandatory report about the incident with the Department of Fairness, Families and Housing (‘Child Protection’).
On 18 October, pursuant to advice from Child Protection, Mr Venables ran a ‘safety plan’ activity with Suzette’s class, which required students to identify adults in their lives whom they could trust, and to understand when it is necessary to call triple zero. Suzette did not identify either of her parents as adults she could trust.
Later that day, Ms Morrison met Suzette to walk her home from school. At some point, the two became separated. Suzette went to a milk bar and called triple zero, explaining that she had lost her mother. When the police attended, Suzette described instances of being physically abused by the applicant and Ms Morrison. Following those disclosures, police decided to take her into protective custody.
Sometime that evening, Ms Morrison told the applicant that Suzette was with the police. After that, according to Ms Morrison, the applicant ‘wrecked the shower’ by punching a hole in it.
At 9:30 pm, officers from Child Protection visited Suzette at a police station to which she had been taken. She told them about physical assaults by her parents. She told them the applicant had called her a slut. And she told them that the applicant had sexually offended against her.
On 19 October 2021, a video and audio recording of evidence (‘VARE’) was conducted by police to explore the allegations made by Suzette. The content of Suzette’s VARE is outlined in more detail later in these reasons.
That same day, the applicant was arrested by police and an interview was conducted. Throughout the interview, he denied the offending.

Overview of evidence

Suzette’s VARE

Suzette said the offending began when she started going to primary school in 2019, and that it would occur when her mother was not at home. She said ‘my dad does naughty things’. Suzette said that the applicant told her the offending was ‘payback for being naughty’. She said the applicant would often call her names, including ‘slut’, ‘bitch’, ‘cunt’ and ‘dickhead’. She said she felt left out when the applicant called her these names, because he did not speak to Sonny or Ms Morrison in similar terms.
Charge 1 alleged that the applicant penetrated Suzette’s vagina with his fingers and penis. Suzette said the applicant penetrated her vagina with his penis about 10 times. She explained that these acts would occur in her parents’ bedroom, on the couch in the lounge room and in the shower. She spoke about exchanges with the applicant in which he asked her ‘do you want it’ and if she said ‘no’ he said ‘good girl’. But if she said ‘yes’, he was ‘really tempted’ and said ‘are you going to be my little slut’ and then he ‘does it’.
Suzette did not indicate how frequently the applicant penetrated her digitally, but described an occasion where the applicant ‘tried to put his finger in [her vagina] all the way and it kind of bleeds’.
Charge 2 alleged that the applicant penetrated Suzette’s anus with his penis. Suzette said that this would always occur on an occasion where the applicant also penetrated her vaginally. During the charge 2 offending, Suzette said that the applicant would put ‘spit’ on his penis ‘so he could fit it in [her] bum’.
Suzette detailed the offending the subject of charge 3, that the applicant penetrated her mouth with his penis. She said the applicant would give her lollies if she sucked his penis, and that he would get them from a jar. She said that the applicant made her do this roughly seven times.
During the VARE, Suzette referred to the applicant ‘play[ing] with [her] vagina’ and sucking on her breast area. Evidence of these uncharged acts was led by the prosecution as tendency evidence demonstrating the applicant’s sexual interest in Suzette and his willingness to act on that interest.
Suzette said that, by the time of the VARE, the sexual offending had stopped. She said the applicant told her that she was ‘getting older so it wouldn’t be really appropriate’.
Suzette also described the common assault constituting charge 4. She said that the applicant slapped her in the face, causing her head to bang into a mirror with enough force to smash it.
Suzette also spoke of a number of incidents involving Ms Morrison. She said Ms Morrison had kicked her in the chest twice, slapped her face with a belt twice, slapped her face with keys, pushed her out of a window and pushed her into a wall causing it to crack.^[5]
Suzette described times when she had told Ms Morrison about the sexual offending. She said she ‘always’ went to tell Ms Morrison what the applicant did, but the applicant always lied and said ‘I don’t think of you that way’. Later in the VARE, Suzette said that she had told Ms Morrison about the applicant’s offending at least twice, but that Ms Morrison did not believe her.
Suzette also said that the applicant’s sexual offending had caused her vagina to become ‘open’. She said that ‘every time’ she had a shower Ms Morrison noticed and asked ‘why is it so wide’? Suzette said ‘I try to tell her but Dad always lies, it’s not fair’.
Suzette spoke about a conversation she had with her parents the night before her VARE. During a phone call she said they apologised to her. Suzette said ‘they said, “oh, I believe you, we’ll — I’ll stop doing what I do and we’ll let you stay up more and have more lollies and we will be nice to you”’.

Special hearing

At the ensuing special hearing conducted on 25 May 2022, Suzette confirmed that the evidence she gave in the VARE was true, before being cross-examined by defence counsel.
Defence counsel asked whether the applicant ‘ever put his doodle in your vagina?’. Suzette said ‘occasionally he tried to, but I said we’re not doing that, because I know that he shouldn’t be doing it with his daughter, he should be doing it with his — Mum, because he’s the one who married her, not me’.
Suzette said ‘yes’ when she was asked ‘did your dad ever put his doodle in your bumhole’. When asked again a little later, she said ‘he didn’t fully put it in. He tried to put it in, but it didn’t actually go in’. When asked to confirm that she had said it did not actually go in, she said that ‘it didn’t quite go in’. She added that it ‘just went a little bit like (witness demonstrates)’. She said the applicant started penetrating her anus when she began going to school.
Suzette confirmed that the applicant put his penis into her mouth. She said she was ‘definitely’ in grade one when this first happened. It happened either in the bathroom or her parents’ bedroom. She recalled a time when ‘something wet’ came out of the applicant’s penis and she had to clean it off the floor. She confirmed that the applicant would give her lollies for letting him put his penis into her mouth.
Suzette confirmed that the applicant would put his finger in her vagina. The first time this happened she was in prep. Sometimes it happened when her mother was home, other times not. Suzette was asked ‘when your dad put his finger in your vagina, did it hurt you?’. She said ‘yes, which is why he always stops, because he knows I call out, “mum”. Mum will eventually come’.
Defence counsel asked Suzette whether the applicant ever ‘put [her] boobs in his mouth’. Suzette confirmed that he ‘occasionally’ did.
Suzette said she told Ms Morrison about the offending twice, but that Ms Morrison did not believe her, and that her father ‘always lied’.
As mentioned above, on the day Suzette spoke to police, Ms Morrison had met Suzette at school to pick her up. Suzette said she asked Ms Morrison to carry her school bag for her but that she refused. Suzette described a moment where it appeared that she and Ms Morrison were taking different routes home. Suzette said ‘I thought she was gonna come with me, but then she said, “if you don’t wanna come, then stay there”, and so I stayed there. And when I tried to catch up with her she walked even faster’. Suzette said she ended up at the police station after that.
Suzette agreed that her parents gave a lot more attention to Sonny who has a disability. The question whether her complaint was motivated by some underlying resentment caused by that situation was put to her in the following exchange:

Did you say all of these things that you said to the police because you thought your parents weren’t giving you enough attention?---No, I said it because I knew if you don’t tell the truth you’re gonna get in more trouble. And I didn’t want to just make the situation be like, ‘Oh okay, we’ll just take you back to Mum’, because then it all just start all over again.
Did you ever say to your mum, ‘I just say these things because you pay more attention to [Sonny] and not to me’?---Yeah, sometimes I say I hate her because she’s always like being mean to me and just saying that [Sonny] is more behaved and he’s the favourite.

Defence counsel asked Suzette whether the applicant pushed her head into the bathroom mirror. Suzette said ‘Yeah, he didn’t mean to – he didn’t mean to because he was about like just to smack me there, but then he accidentally did it too hard and it hit me in the mirror and smashed it’.

Amanda Morrison

Ms Morrison, who is cognitively impaired, gave evidence in two separate VAREs and was cross-examined in a special hearing. In her second VARE and at the special hearing, Ms Morrison acknowledged that some of her evidence in the first VARE was not true.^[6]
The first VARE was conducted on 20 October 2021. Ms Morrison said she had not been aware of anything ‘out of the ordinary’ occurring between Suzette and the applicant and she had been unaware of Suzette’s allegations until the police arrested him. She could not recall a time when the applicant was alone with the children aside from a few hours on one occasion, when she left them at home with him while she took herself to hospital. When it was put to her that the applicant had been having sex with Suzette, she said she did not think it could be true because she could not identify any opportunity the applicant would ever have to do it. She said the applicant had lollies that he ate while he watched movies, but no lolly jar. She said Suzette had stolen lollies before. She said Suzette had never told her about any of the allegations.
The second VARE was conducted on 23 March 2022.
Ms Morrison said the applicant took a dislike to Suzette when she was aged four or five, and that he would call her names and hit her arm. She said ‘nearly every day, he’d just find something to pick on [Suzette] about’.
On the occasion when Ms Morrison returned after leaving the children at home with the applicant while she attended hospital, she said Suzette had been ‘very adamant that she didn’t want to be left alone with [the applicant]’, and that she appeared scared and shaken up. Ms Morrison said the applicant never helped wash the children. She recalled Suzette becoming scared in the bathroom and the shower and asking Ms Morrison to stay there with her.
Ms Morrison said that Suzette was probably left with the applicant about once a week while she visited her foster mother.
Ms Morrison said Suzette had started to become more moody, emotional and withdrawn during the six months leading up to her complaint to police.
Ms Morrison reiterated her earlier statement that Suzette had never told her about the allegations against the applicant and that she only came to know about them after the police arrested him.
She said that, after she told the applicant that Suzette was with the police, he went to the shower and she heard him punching something in the bathroom, and she later observed a hole in the shower wall.
Ms Morrison was asked why she had said things that were dishonest in her first VARE. She said she had felt she had to cover up for the applicant, and that she did so out of fear. She said she was no longer covering up for him and that she believed Suzette.
The special hearing in respect of Ms Morrison’s evidence was held on 19 August 2022. During cross-examination, she was asked about the time she became separated from Suzette during the walk home from school. Ms Morrison said Suzette ran away after Ms Morrison said she would not hold her school bag.
Ms Morrison was then asked whether Suzette had ever told her about the allegations:

Before [19 October 2021], had [Suzette] ever told you about anything sexual happening between her and [the applicant]?---No, she has not.
Did she ever tell you anything about anything sexual happening in 2019, between [her] and [the applicant]?---I can’t remember.
Did she ever tell you anything about anything sexual between her and [the applicant], five days before she spoke with the police?---Ah, no.

She denied Suzette’s claims that she had physically assaulted her and said those claims were wrong. She denied that she had ever told Suzette that her vagina ‘looked wide’. She agreed that Suzette was ‘making that up’.

Dr Thea Bloom

Dr Bloom was a specialist employed by the Victorian Forensic Paediatric Medical Service. On 19 October 2021 Dr Bloom undertook an examination of Suzette and noted that she had ‘normal genital examination findings ... in keeping with her prepubertal status’. She said that it was ‘not possible to differentiate between sexually abused and non-sexually abused children based on normal anogenital examination findings’. Therefore, the absence of findings on examination did not exclude the possibility of sexual abuse.

Abigail Jones^[7]

Ms Jones is the applicant’s maternal half-sister. She gave evidence that Suzette stayed at her home on the night of 18 October 2021 (the night Suzette reported the offending to the police). She said that Suzette ‘seemed happy’ and had said goodnight to her parents over the phone.
Ms Jones said Suzette told her about a time when the applicant sang ‘row, row, row your boat’ to her as he laid her down on a bed, that he had asked Suzette to give him oral sex, that he touched her ‘private’ with his fingers and that he had ‘stuck his privates in her privates’. Ms Jones asked her if she bled and she replied no. Suzette told Ms Jones that the applicant did this to her ‘a few times’ during 2020 within a period of ‘a couple of months’. Suzette told her it would happen when Ms Morrison was out of the house. Suzette said she was scared to tell anyone in case the applicant did something to her.

Andrew Venables — School teacher

Mr Venables gave evidence describing the events surrounding his report to Child Protection and conduct of the safety plan activity described at [8]–[9] above.

Jennifer Spry^[8] — Foster carer

Ms Spry had respite care of Suzette and Sonny from November 2021. From mid‑December 2021 they began to live with her permanently. Suzette told Ms Spry that Ms Morrison never believed her. Suzette said that the applicant did naughty things to her. When asked what those things were she spelled the word ‘sex’. Suzette told Ms Spry that the applicant would sing ‘row, row, row your boat to her’, as he lifted her up and put her on top of him. Ms Spry said Suzette physically demonstrated what the applicant would then do to her, showing a thrusting motion.
Suzette told Ms Spry that the offending would occur often, generally in ‘her bedroom’ when Ms Morrison was not around. She said the applicant ‘mainly puts it down there’, as she pointed towards her vagina and anus.
Ms Spry said that, during dinner, Suzette would sometimes mention that the applicant did naughty things to her. She said Suzette also told her that Ms Morrison had hit her with a belt.
Ms Spry said that Suzette would make her stand inside the bathroom whilst she showered and that Suzette would scream if she did not. She said she was once helping Suzette during bath time when Suzette said, referring to her bottom area, ‘don’t go down there, that’s where [the applicant] puts it’.

Linda Christos^[9] — Foster mother of Ms Morrison

Ms Christos stated that Ms Morrison would visit her roughly monthly. Ms Morrison would come alone or with Sonny. Ms Christos would ask where Suzette was, and Ms Morrison would say that she was with the applicant. Ms Christos said that she never saw Suzette and the applicant interact.

First Constable Sasha Sztynda

FC Sztynda was assigned to work on the divisional van with another police officer on 18 October 2021. She attended a job relating to a lost young child, Suzette, who had called triple zero to report that she was on her own and had lost her mother. FC Sztynda said that, after picking Suzette up, Suzette disclosed that her parents had been inflicting physical assaults on her since she was about six years old. On the basis of those disclosures, FC Sztynda determined that the police should act as ‘protective interveners’, which meant taking custody of Suzette to protect her from ‘immediate danger’. FC Sztynda subsequently took Suzette to the police station and called Child Protection.

Senior Constable Nicole Jacks

SC Jacks was assigned to watch house duties on 18 October 2021. She looked after Suzette for approximately five hours until Child Protection arrived. She said that Suzette disclosed ‘some family violence and allegations of physical abuse from both mum and dad’.
During cross-examination, SC Jacks agreed that Suzette told her that her parents gave her younger brother ‘all the attention’. She said Suzette showed jealousy in that respect, and said that her parents love her brother more than they love her. Suzette said that her feelings about her brother sometimes upset and frustrated her so much she would scream into her pillow.

Jaimi Lee — Child Protection

Ms Lee and a colleague attended at the police station on 18 October 2021 to interview Suzette.
During the interview Suzette said that Ms Morrison had hit her with keys to her face, pulled her along the ground and punched her in the face. She described the mirror incident constituting charge 4. As mentioned earlier, Suzette told Ms Lee that the applicant had called her a slut. Suzette said that the applicant did ‘naughty things’ to her ‘that mums and dads do and high school kids do ... too’. She said that the applicant ‘puts his privates in my butt and I also sometimes have to sit on him when he’s naked’. She said she sometimes ‘has to suck on her dad’s privates and he gives her lollies’. She said she had told Ms Morrison about what the applicant did, but that Ms Morrison did not believe her.

The applicant’s police interview

The applicant was interviewed by police on 19 October 2021 following his arrest. He said that he had explained to Suzette ‘what bits no man is to touch’ and may have been ‘a bit graphic with how [he] explained things’, but that he did not ‘see [his] daughter in that way’ and had told her that ‘all the ... time’. He denied all the offending.

PART B: PROPOSED GROUNDS 1–3 — WHETHER JURY’S VERDICT ON CHARGES 1–3 UNSAFE

Submissions

In his written case, the applicant advanced separate (albeit interrelated) arguments to deal with each of his first three proposed grounds. At the hearing, counsel indicated that the grounds would be argued ‘effectively as one ground’. These reasons proceed on that basis.
The applicant’s case under proposed grounds 1–3 rests on an accumulation of evidentiary issues that, together, are said to establish that the jury ought to have had a reasonable doubt about the applicant’s guilt. The applicant accepts that none of the issues, standing alone, is sufficient to make good his case. The points relied on fall into five categories.
Because there are multiple discrete issues raised, it is convenient to set out the submissions on successive points and deal with them in turn before considering the overall effect of the matters relied upon.

Inconsistencies in Suzette’s VARE

The first set of issues concerns inconsistencies in the answers Suzette gave during her VARE. First, in the first reference to sexual offending, Suzette said ‘My dad does naughty things’. She elaborated by saying that he made her ‘suck his private and he does it to me’ and ‘then he tries to put his finger in my private and try to put his private inside my bum’.^[10] Not long after this, Suzette said that the applicant put ‘his private into my bum’ and ‘sometimes puts it in there’ (indicating the genital area on a diagram). Later again, Suzette said that on the last occasion of offending, the applicant ‘tried to put his finger in there ... all the way’ (again indicating the genital area). The applicant emphasised the contrast between the language of ‘trying’ and ‘putting’ in relation to the acts of digital and penile penetration.
The respondent contended that Suzette’s evidence referred to occurrences where there was some (rather than full) penetration. Elsewhere in the VARE Suzette confirmed, with the assistance of pictures of human figures, that the applicant put his penis in her ‘privates’. The respondent submitted that the passage in the VARE where the descriptions of ‘putting’ are found involved very careful questioning by the police interviewer with the assistance of the pictures of human figures. The respondent suggested that the descriptions of ‘trying’ were of less weight in the light of that more thorough questioning.
The suggested inconsistencies are minor. In the context of referring to a course of conduct, the fact that a child complainant describes acts involving a greater or lesser degree of penetration, or sometimes only an attempt, does not necessarily detract from the credibility or reliability of the witness. Taken as a whole, Suzette described a course of conduct of vaginal penetration (whether penile or digital) and anal penetration as alleged in charges 1 and 2 respectively.
Next, Suzette was asked whether the offending ever occurred anywhere other than in the applicant’s bed. She said ‘sometimes when he puts it in my private, he does it in the lounge’. Ten questions later, the following exchange occurred:
1. [Y]ou said Dad sometimes has sex, as you called it earlier, with you on the couch.
2. No, he doesn’t do it, he just says, ‘Do you want it?’ And every time I said, ‘No,’ he says, ‘Good girl,’

[GIVES THUMBS UP]

so he doesn’t want to, he just asks me to make sure he doesn’t. ’Cause when I say, ‘Yes,’ he gets really tempted and he says, ‘You’re the — are you gonna be my little slut?’

Q Is that what he says to you, is it?
A Yeah.
Q And what - - -
A I - - -
Q And what do you say then?
A I say, ‘No. Would you like me to call you a bitch?’
Q And what happens after that?
A He does it.
Q He does it?
A Mm’hm.

So how do you get from being in the lounge room to being in the bedroom?
A My dad drags me.

The applicant submitted that a comparison between the emphasised part of the exchange and Suzette’s earlier statement that the applicant would penetrate her ‘in the lounge’ revealed an inconsistency. During argument, counsel for the applicant accepted that it was unclear whether Suzette’s eventual answer that ‘he does it’ referred to events on the couch or in the bedroom.
It is again important to bear in mind that the evidence was about a course of conduct. The account set out above is consistent with the statement that the offending ‘sometimes’ took place in the lounge. That is so, even if the last answer implies offending having taken place in the bedroom. It is not a denial that offending sometimes took place in the lounge as well.
Thirdly, Suzette was asked when was the last time that the applicant made her suck his penis. In response, she said ‘about last year or the last year and then kind of this year. He’s asked if he – if I want to have sex but then I always say, “no” ’cause that’s disgusting’. Later, the following exchange occurred:
1. O.K. When you — you said earlier that [the applicant] has sex with you. What do you think ‘sex’ is?
2. I don’t know.
3. Well, what do you think [the applicant] means when he says that he — ‘do you want sex’?
4. I don’t know.
5. Well, what do you think — well, what does it — what does it feel like to you when he has sex with you?
6. Weird.
The applicant referred to Suzette’s repeated use of the word ‘sex’ and submitted that she did not know what the word meant. The applicant suggested that it therefore could not make sense for Suzette to say sex felt ‘weird’.
The respondent pointed out that the jury was addressed by trial counsel and the judge about inconsistencies in the evidence, and that the judge gave clear directions as to how children’s language and mental abilities might affect how they understand and respond to questions.
Despite Suzette’s reluctance, unsurprising in a child of her age, to attempt a definition of ‘sex’, it is plain from her use of the word that she had a good understanding of its meaning. In particular, her earlier answer shows that she understood ‘sex’ to include her sucking the applicant’s penis. Suzette’s statement that she did not know what ‘sex’ was, or meant, is of little significance.

Inconsistencies between Suzette’s VARE and special hearing

The applicant submitted that there were inconsistencies between the answers Suzette gave in her VARE and the evidence she gave in the special hearing. In her VARE, Suzette said that:

(a) the applicant had put his penis in her vagina about 10 times;
(b) the applicant had tried to put his finger in her vagina ‘all the way and it kind of bleeds’;
(c) the applicant had put his penis in her anus about seven times; and
(d) the applicant had made her suck his penis about seven times, during 2019, 2020 and 2021.

However, in response to defence counsel’s question at the special hearing ‘did your dad ever put his doodle in your vagina?’, Suzette responded:

well, occasionally he tried to, but I said we’re not doing that, because I know that he shouldn’t be doing it with his daughter, he should be doing it with his — Mum, because he’s the one who married her, not me.

The applicant submitted that this response directly contradicted the VARE evidence that he penetrated Suzette’s vagina. He submitted that Suzette’s response followed a question that was ‘squarely put’ and that her response could not be attributed to puttage or the challenge of facing cross-examination as a child.^[11]
The respondent submitted that the exchange relied on by the applicant only indicated that he ‘sometimes’ tried to penetrate Suzette and Suzette tried to prevent it. The jury could have reasoned that those occasions did not constitute part of the charged offending, which was a course of conduct charge. The respondent argued that Suzette’s answers did not amount to a recantation of her VARE evidence in any event.^[12]
The applicant submitted that the following exchange also contradicted Suzette’s VARE evidence:

Your dad has said to the police that he never put his finger in your vagina. Did dad do it or not?---Not really. He tried to do it — so like he tried to get in, but because I was too little and it wasn’t like wide enough to do it, he couldn’t do it anymore.
So he - - -?---Didn’t do it.

Thirdly, the applicant submitted that the following evidence was inconsistent with Suzette’s VARE account of anal penetration:

So [Suzette] you[r] dad has said to the police he’d never put his doodle in your bumhole. Did dad do it or not?---Well, he — the thing is he didn’t fully put it in. He tried to put it in, but it didn’t actually go in ... so no.
HER HONOUR: Sorry, can I just get you to repeat that last little bit [Suzette]. Did you say it didn’t actually go in? Is that what you said?---Yeah, it didn’t quite go in.
Thank you - - -?---It just went a little bit like (witness demonstrates).

The applicant pointed to two inconsistencies in this extract. The first fixed on the ‘no’ in her first answer, which was said to amount to a statement that the offending did not occur. The second focused on the parts of the extract that follow, suggesting that what occurred was limited to a single instance of attempted penetration. In both cases, it was said that there was ‘significant inconsistency’ with her VARE evidence that penetration occurred.
The respondent submitted that this evidence demonstrated, at the least, that the offending involved ‘some’ penetration, sufficient to establish penetration at law.^[13] The respondent relied on Suzette’s evidence that the applicant ‘didn’t fully put [his penis] in’, and that ‘it just went a little bit’.
These suggested inconsistencies are all further examples of the complainant describing different degrees of penetration over a course of conduct. They do not contradict Suzette’s VARE evidence that penetration did occur over that course of conduct. In particular, the answer ‘didn’t do it’, in reference to digital penetration, must be read in context. Suzette said that her vagina ‘wasn’t ... wide enough’, and that the applicant ‘tried’ to insert his finger into it, but ‘couldn’t do it’. That account is not inconsistent with her VARE evidence that he tried to put his finger ‘all the way’ into her vagina. Similarly, her answer ‘no’ in respect of anal penetration was explained when she said ‘he didn’t fully put it in’ and ‘it just went a little bit’. This plainly describes an act of penetration.
Fourthly, the applicant submitted that the following extract was inconsistent with Suzette’s VARE evidence, specifically her evidence that the offending the subject of charge 3 occurred across the years 2019–21:^[14]

[D]id your dad ever put his doodle in your mouth?---Yes.
What grade were you in the first time that it happened?---Well, definitely grade 1 because my dad said, ‘You’re way too young to do that stuff (indistinct words)’ ... He said because, um — because I’m too young, he’s not going to do that until I’m in, like, a better grade.

As the applicant noted, Suzette was in grade 1 at the time of her VARE, which was conducted on 19 October 2021. Accordingly, the effect of her special hearing evidence was that the offending the subject of charge 3 began in 2021 rather than 2019.
The respondent referred to a passage shortly before the extract relied on by the applicant:

All right. So what grade were you in the first time that it happened?---Probably just about when, um, the school holidays ended.
Ended at the end of what grade?---Um, when we ended it at prep and I just turned (indistinct words).

The respondent said the effect of the evidence referred to by the applicant, and the passage just set out, was that the offending the subject of charge 3 may not have commenced until after the end of prep (2020), during school holidays shortly before Suzette was to enter grade 1, the ‘better grade’ (2021). The respondent submitted that this version of events still fell within the date range specified on the indictment (1 January 2019 and 19 October 2021), and that any inconsistency between it and Suzette’s answers in the VARE was a matter open to the jury to resolve (particularly by reference to Suzette’s age, which may have made it harder for her to describe the timing of events with precision).
The respondent’s submissions point to a rational explanation for Suzette’s evidence in this respect. That aspect of her evidence as to when oral penetration occurred is, however, inconsistent with her VARE evidence that oral penetration occurred in 2019 and 2020.
Fifthly, Suzette said during her VARE that the offending did not occur anywhere other than in the family home. The applicant submitted that the following extract from the special hearing was inconsistent with that answer:

That first time [anal penetration occurred] — where did it happen?---Probably at my home. But occasionally um, [the applicant] would go to um, my nan’s house to — he took me because Mum was up with [Sonny] at [Linda’s] house and um, nan went away to Phillip Island and left the cat so he went to feed the cat and I asked, um, when are we going to go and he said we’re not leaving until you do, you know, and so we have to do it in like the whole way^[15] with the door shut and I said that’s it, stop. And he did stop because he knew — most people can believe me, but most people don’t believe me. And so he stopped doing it.
...
And this was in your grandmother’s house?---Uh-huh.

The respondent argued that the passage relied on by the applicant, particularly the comment ‘we’re not leaving until ...’ suggested that Suzette was referring to an incident, or incidents, where the applicant insisted on engaging in some sexual activity before leaving for Suzette’s grandmother’s house. On that basis, the respondent submitted that the passage specified the location of the offending in equivocal terms at best. The respondent also pointed to Suzette’s evidence elsewhere in the special hearing that the offending constituting charge 2 occurred ‘mostly at home’.^[16]
The evidence set out above is difficult to follow, but in light of the question, it is best understood as alluding to offending at Suzette’s grandmother’s home. There is some inconsistency between this evidence, so understood, and Suzette’s VARE statement that the offending did not occur elsewhere than at the family home. The latter evidence, however, was in response to a very unclear question, ‘Did it ever happen anywhere else?’, ‘it’ being unspecified. Moreover, as the respondent pointed out, Suzette also said in the special hearing that the anal penetration had occurred ‘mostly at home’. In these circumstances, the account of what, if anything, happened at the grandmother’s home, which was oblique at best, is of no great weight in any event.
Finally, in her VARE, Suzette said that she had told Mr Venables about the applicant’s sexual offending:
1. O.K. Is there somebody, [Suzette], who is like safe adult that you’ve told or that you feel that you can — that you’ve been able to tell them before today?

A Well, my Mum, my auntie [Abigail] and my teacher.
Q So have you told them about Dad having sex with you?
A Yeah.
...
Q What did you tell your teacher?
A I told them what I’m telling you and he says, ‘Oh, that’s awful’.

The applicant submitted that this was inconsistent with the following evidence Suzette gave in the special hearing:

Your teacher at school has said that you told him about dad hitting you, not about any other things. Did you tell your teacher only about dad hitting you, not about the other things?---I think I only told him about Mum and only Dad hitting me and smashing my head into near our bar. I think that’s it and I think I remember telling my Auntie [Abigail] and my friends.

The respondent took the Court to the following passage in the evidence of Mr Venables:

I asked [Suzette] when she would be called [a slut] or why she would be called that and she said that sometimes it happened when she was naughty.
Did she expand anything further?---No. When I asked what she meant by um ‘being naughty’, she, she became withdrawn and didn’t want to um continue talking about it.

The respondent argued that Suzette’s use of the term ‘naughty’ echoed her use of the term in her VARE, where she equated it with some of the sexual offending. The respondent acknowledged that no details of the sexual offending were disclosed to Mr Venables, but submitted that it was open to the jury to resolve any inconsistency in the evidence.
The evidence given by Suzette on this point is not consistent. In the VARE she said that she had told Mr Venables ‘what I’m telling you’, by implication referring to the sexual offending. She confirmed that she was referring to ‘the sex stuff’. That differs from her evidence in the special hearing, and from the evidence of Mr Venables himself. It should be noted, however, that Mr Venables did say that Suzette told him that the applicant called her ‘a slut’, and confirmed that he responded that this was ‘awful’. He also confirmed that she had referred to being ‘naughty’ and had not wanted to explain what she meant. Suzette’s account to her teacher therefore went beyond the physical violence she had described, but did not extend to any sexual offending.

Inconsistencies between Suzette’s evidence and what she told other witnesses in the trial

The third category of inconsistency concerned the evidence of other witnesses as to what Suzette said to them about the offending. First, the applicant referred to Suzette’s VARE answer that she sometimes bled when the applicant penetrated her. He submitted that this evidence was inconsistent with Ms Jones’s evidence that Suzette told her she did not bleed.
The respondent noted that the jury were addressed on this issue. It was among a list of inconsistencies described by the judge in his charge, and was referred to in final addresses by both the prosecutor and defence counsel. The respondent submitted that it was well within the province of the jury to resolve this matter.
The evidence reflects an inconsistency on the part of Suzette on this subject.
The applicant also referred to a statement Suzette made in her VARE that Ms Jones said to her ‘I believe you, but no-one believes you, but I do’. In the applicant’s submission, that statement was inconsistent with the following passage in Ms Jones’s testimony:

[Abigail], when you had [the conversation about the applicant’s offending] with [Suzette], did you tell [Suzette] that no one believes her?---No.
Did you tell her that no one would believe her?---No.
Is that something you’ve ever said to [Suzette]?---No.

This evidence is at odds with Suzette’s account of the conversation.
Next, the applicant referred to inconsistencies between Suzette’s evidence and that of Ms Morrison. The applicant adverted to Suzette’s evidence that:

(a) Ms Morrison saw her vagina in the shower and asked ‘why is it so wide?’; and
(b) Ms Morrison had kicked her in the chest, slapped her across the face with a belt, pushed her out a window and slapped her across the face with keys.

In Ms Morrison’s evidence, she denied each of those matters. She said Suzette made up the ‘why is it so wide’ comment.
In respect of Ms Morrison’s denials of the allegations of physical abuse, the respondent submitted that she could have been focused on answering in a way that protected herself, which would be unremarkable, especially given that she had not been honest in her first VARE. As for her denial in connection with the ‘why is it so wide’ comment, the respondent noted that the prosecutor put to the jury that ‘it’s a matter for you what you think [Suzette] was describing. But ... some of the problems with [Ms Morrison’s] evidence [are] self-evident’. The respondent submitted that this perspective on Ms Morrison’s evidence was echoed by the judge when he addressed the inconsistencies and issues in Ms Morrison’s evidence in his charge. Taking these matters into account, the respondent submitted that it was well open to the jury to reconcile any inconsistencies arising from Ms Morrison’s account.
There is force in the submissions advanced by the respondent. But it suffices for the moment to note that Ms Morrison’s evidence differed from that of Suzette in significant respects. That is the subject of the fourth category of evidence relied on by the applicant, to which it is now convenient to turn.

Ms Morrison’s evidence

It will be recalled that Suzette gave evidence that the applicant’s offending sometimes caused her to bleed. The applicant referred to Ms Morrison’s flat denial that Suzette ever bled from her genitals:
1. O.K. Tell us about a time that [Suzette] was bleeding from her genitals. Can you tell me about that?
2. She hasn’t bled from there before. She said that she thinks, like, there’s some blood and I’ve checked there and checked the toilet and there was no blood or nothing, so — yeah.

Q Was there a specific occasion you’re - - -

No, she just said that and I said, ‘Maybe you might need to get a — have a shower or something,’ ’cause there was nothing there — like, down there when I checked her and the toilet. There was no blood on the toilet seat and — yeah. She hasn’t — didn’t mention that, like, again to - - -

But did she have a conversation with you about - - -

She just said that she thought that there might be blood when she went to the toilet ’cause she’s like, ‘I think I might be starting my period’. That’s what she said to me. And I’m like, ‘You’re a bit young, you’re only seven,’ like - - -
...

Yeah. So the — the conversation you had with her, you’ve then gone and checked the toilet and you didn’t see any blood?

Yeah. And I’ve checked her underwear and checked her and she — there was no blood or anything.
Q You checked her?

Yeah. I was like, ‘Can you, yeah, show me?’ And I checked and there was no blood on the toilet paper or anything, so I just, yeah, left it at that. I said, ‘We’ll see how you — you are in the morning,’ and she didn’t mention anything about it the next morning to me, so I just didn’t bring it back up, yeah.

Suzette’s evidence that she told Ms Morrison about the offending was put to Ms Morrison in her first VARE:
1. ... has she ever spoken to you about these allegations? Obviously about [the applicant] having sex.
2. No, she has never talked to me about that.
3. Mm.
4. Yeah.
5. And the first time you - - -
6. And she’s never said anything about, like, sex or anything like that to me. Like, she’s never talked to — that way to me before, like, about stuff like that.
7. O.K.
8. So - - -
9. About sex?
10. Yeah, she’s never spoken to me about anything like that before.
The applicant relied on the obvious inconsistency between Suzette and Ms Morrison on this matter.
Again, the respondent’s submissions about the credibility of Ms Morrison are relevant here. In addition, the respondent pointed to evidence from Ms Morrison’s special hearing, alleging it betrayed some equivocation on the question whether Suzette discussed the allegations with her:

Did she ever tell you anything about anything sexual happening in 2019, between she and Mr [Cookson]?---I can’t remember.
Did she ever tell you anything about anything sexual between her and Mr [Cookson], five days before she spoke with the police?---Ah, no.
Did she ever tell you anything — did she ever tell you about anything sexual happening between her and Mr [Cookson] a couple of days before she spoke to the police?---No, she did not.
Did [Suzette] speak to you on the telephone the night before she had her video statement with the police?---No, she did not.^[17]

The respondent also noted that Suzette never positively indicated that the offending did not take place. She confirmed that her VARE evidence was true, and rejected the proposition that she made up the allegations for attention.
There are, as already noted, real differences in the evidence of Suzette and Ms Morrison. In respect of the allegations of physical assault, that is perhaps unsurprising — and the jury did not need to decide that issue. More importantly, Ms Morrison’s credibility was affected (even allowing for her cognitive impairment) by her admission that she gave incorrect answers in her first VARE in order to ‘cover’ for the applicant. At the same time, Ms Morrison said that she now believed Suzette.

Alleged lie told by Suzette

The final matter relied on by the applicant under proposed grounds 1–3 was an alleged lie told by Suzette, said to emerge from the emphasised text in the following passage from Suzette’s special hearing:

Did [your parents] give [Sonny] a lot more attention than they gave you?---Yes.
Did you say all of these things that you said to the police because you thought your parents weren’t giving you enough attention?---No, I said it because I knew if you don’t tell the truth you’re gonna get in more trouble. And I didn’t want to just make the situation be like, ‘Oh okay, we'll just take you back to Mum’, because then it all just start all over again.
Did you ever say to your mum, ‘I just say these things because you pay more attention to [Sonny] and not to me’?---Yeah, sometimes I say I hate her because she’s always like being mean to me and just saying that [Sonny] is more behaved and he’s the favourite.
I’ll just make sure that I understand what you said.
[PROSECUTOR]: Yes, I don’t think she (indistinct words).
HER HONOUR: Yes, I don’t think so either.
[DEFENCE COUNSEL]: I’ll just ask that question again. (To [Suzette]) Do you remember ever saying these words to your mum, and I think you’re talking about what you said to the police, ‘I just say these things because you pay more attention to [Sonny] and not to me’?---Yes, I did say that.

As to the alleged lie on the part of Suzette, the respondent submitted that it needed to be read in its context, pointing to the initial exchanges in the passage and submitting that they showed that Suzette clearly and unequivocally said that her complaint was truthful.
The answer upon which the applicant relies is equivocal. It falls well short of recanting Suzette’s evidence of sexual offending. That is especially so in light of her answer a short time earlier indicating that she had told the truth to police.
It is convenient to refer to the applicable legal principles before returning to a consideration of the above matters.

Test to be applied

The first three proposed grounds of appeal rely on s 276(1)(a) of the Criminal Procedure Act 2009, which requires the Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In order to succeed the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charges. The question for this Court is whether it was open to the jury, acting rationally, to be satisfied to the criminal standard that the accused was guilty.^[18]
The High Court in Pell stated that this Court, in applying that test, must proceed on the assumption that the jury assessed the complainant’s evidence as credible and reliable.^[19] That is because the assessment of credibility and reliability of a witness by the jury proceeds on the basis of what the jury has seen and heard in a trial, which is not to be duplicated by the appellate court.^[20]
If the jury’s verdict is to be displaced, it must be by reference to something other than ‘the evaluation of the witnesses in the witness-box’.^[21] In that way only, the appellate court may ultimately not accept the truth of the complainant’s evidence. That is the fundamental issue in a case such as the present, where the question is whether a verdict dependent on acceptance of a complainant’s evidence was ‘unreasonable or cannot be supported having regard to the evidence’.^[22]
The question is, upon an examination of the record, whether the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant’s evidence, or in light of other evidence.^[23] Put differently, the question is whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant’s guilt.^[24]
In applying these principles, the appellate court is not simply giving effect to its own view in place of that of the jury, so as to substitute trial by a court of appeal for trial by jury.^[25] Full allowance is given to the advantages enjoyed by the jury in having seen and heard the witnesses give evidence in the unfolding criminal trial.^[26]
Pell requires that, if the appellate court considers that it was not open to the jury to be satisfied of the case against the accused beyond reasonable doubt, it must set aside the verdict given by the jury based on that evidence. In that way, the court’s doubt will, in effect, be a doubt which a reasonable jury ought to have had.^[27]
The approach described in Pell differs from asking whether the appellate court has a doubt about the conviction and then considering whether the conviction is explicable, despite that doubt, by the advantages enjoyed by the jury.^[28] Especially where the jury’s assessment of the credibility and reliability of the complainant and the accused respectively may affect any evaluation of their competing evidence, the latter approach risks inverting the process by conducting, in effect, a trial ‘on the papers’, and thereby blurring the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court.^[29] Instead, the appellate court starts on the assumption that the jury found the complainant’s evidence credible and reliable.
The question is therefore whether, by reason of inconsistencies, discrepancies or other inadequacy in Suzette’s evidence, or in light of other evidence, the jury, acting rationally, must have entertained a reasonable doubt about accepting her evidence as to the charged events, upon which conviction depended.^[30] As set out above, counsel for the applicant relied on multiple inconsistencies, discrepancies and inadequate features of the evidence of Suzette, together with other evidence said to cast doubt upon that evidence. It was submitted that these various matters constituted improbabilities in Suzette’s account which compounded to give rise to a reasonable doubt in the applicant’s guilt, which the jury ought to have entertained.^[31]
The respondent argued that the issues relied on by the applicant were well within the province of the jury to resolve, accepting or rejecting parts of the complainant’s evidence as necessary, and emphasised the jury’s function as the body entrusted with primary responsibility for determining guilt or innocence, with the benefit of having seen and heard the witnesses.^[32] In the respondent’s submission, the whole of the evidence before the jury revealed a permissible pathway to conviction.^[33]

Consideration

In the present case, the jury was required to evaluate the evidence of a child complainant giving evidence of three course of conduct charges. Some measure of inconsistency was to be expected from the very fact that the charges were not about isolated incidents but covered a course of offending over a period constituting a significant part of her life. So, evidence about what ‘sometimes’ happened, or where it happened, could differ from what happened, and where it occurred, on other occasions, without reflecting on the credibility or reliability of the witness.
Similarly, in the circumstances, the evidence about degrees of sexual penetration, or attempts at such, was not necessarily describing the same act on every occasion. As such, these differences were again not necessarily discrepancies in the accounts of the witness, being explicable as differences in the overall conduct being described on different occasions.
The evidence of Ms Morrison was inconsistent with that of Suzette in many respects. But it is important that Ms Morrison was a witness whose credibility and reliability were in question, not only because of her cognitive impairment, but also because of her admitted preparedness to ‘cover’ for the applicant in her first VARE and to give answers that were untrue as a result. The jury would have been entitled to reject other evidence she gave as well. In particular, her claim not to remember whether Suzette told her about anything sexual having happened between her and the applicant in 2019 lacks credibility.^[34] It is significant, too, that the inconsistencies are largely about matters incidental to the actual offending — whether Suzette had bled from her genitals, whether she had told Suzette her vagina looked ‘wide’, and whether she had physically assaulted Suzette herself. The most significant discrepancy concerns the question whether Suzette had told Ms Morrison of the offending. On that matter, it was open to the jury to accept that Suzette had told her mother that the applicant had offended against her, and to reject Ms Morrison’s denials, bearing in mind the issues concerning her credibility and reliability referred to above. On the sexual offending itself, Ms Morrison said that she believed Suzette.
None of the other matters relied on by the applicant detract in any meaningful way from the jury’s acceptance of the credibility and reliability of Suzette as a witness. The extent of the discrepancy as to what she told Mr Venables is unclear and of rather tangential relevance in any event. Plainly, he did not understand Suzette to have been alleging sexual assault. But she told him that the applicant called her a ‘slut’ and alluded to being ‘naughty’, which recalls Suzette’s initial VARE account of the events preceding the offending, so she equally did not seek to confine her report to allegations of physical violence. It is also not of any significance whether the evidence of Ms Jones about the conversation she had with Suzette after she disclosed the offending is accepted in preference to that of Suzette. The jury could have accepted Ms Jones’s evidence about what was said in that conversation — about whether Suzette said she had bled and whether Ms Jones said that nobody would listen to Suzette — and rejected that of Suzette, without drawing any wider conclusion about the credibility or reliability of Suzette when giving evidence of sexual offending.
Finally, the fact that Suzette gave inconsistent evidence as to the time period over which oral penetration took place is unsurprising given her age. The mandatory direction prescribed by s 44N of the Jury Directions Act 2015, which was duly given to the jury by the judge, confirms as much. Subsection (4) is in the following terms:

(4) In giving a direction under this section, the trial judge must inform the jury that—
(a) children can accurately remember and report past events; and
(b) children are developing language and cognitive skills, and this may affect—
(i) whether children give a detailed, chronological or complete account; and
(ii) how children understand and respond to the questions they are asked; and

(c) experience shows that, depending on a child's level of development, they—
(i) may have difficulty understanding certain language, whether because that language is complicated for children or complicated generally; and

Examples

Hypothetical, ambiguous, repetitive, multi-part or yes/no questions.
The use of the passive voice, negatives and double negatives.
(ii) may have difficulty understanding certain concepts, whether because those concepts are complicated for children or complicated generally; and

Example

Relative concepts such as time, duration, measurement or frequency.

(iii) may not request the clarification of a question they do not understand; and
(iv) may not clarify an answer they have given that has been misunderstood.

In the end, the discrepancies that exist in the evidence did not compel the jury to reject Suzette’s evidence of the applicant’s offending, and to entertain a reasonable doubt about the applicant’s guilt of charges 1–3.
Leave to appeal on these grounds should therefore be refused.

PART C: PROPOSED GROUND 4 — WHETHER EVIDENCE OF INCRIMINATING CONDUCT ADMISSIBLE

As noted earlier, Ms Morrison gave evidence that, after she told the applicant that Suzette was with the police, she heard him punching something in the bathroom and later observed a hole in the shower. Before trial, the prosecution filed a notice indicating its intention to lead that evidence as evidence of incriminating conduct, as s 19 of the Jury Directions Act requires. Over objection, the judge allowed the prosecutor to adduce the evidence. The applicant’s proposed ground 4 argues that the judge erred in doing so, by failing to conduct any assessment of the plausibility of any innocent explanation for the applicant’s conduct.

Background

In the police interview, the applicant explained that he had learned that Suzette made allegations of sexual misconduct against him some days before her disclosure to the police:
1. Before [your arrest], when had you heard about [Suzette’s] allegations?
2. At the weekend she said it to [Ms Morrison] and ’cause I — I was out doing groceries or getting something for the car or washing the car, God knows, I’m always busy. [Ms Morrison] called me and I — she told me about it. I — I was sickened then as well, like, thinking that my own daughter could think that I could be capable of doing such a thing to her. Blows me away. And I — I was in tears over it ‘cause, you know, that’s my first-born child.
3. Mm’hm.
4. Giving — hear — hearing that out of her mouth broke me, like. I — I haven’t even been able look at her the same, like. I haven’t even been able to look — barely talk to her over it. And she — when I — ’cause I — I had to drive away and go for a drive just to, you know, clear my mind. And then [Ms Morrison] rang me back and she said that [Suzette] herself said, ‘Sorry, mum, I think I might be a bit confused with what I’m saying. I just say these things because you don’t — you pay more attention to [Sonny] and not me’, and I — like, yeah. Sometimes she gets left out but that’s because [Sonny] has special needs. He’s — he’s a lot more independent on us, whereas she — she was lucky, she didn’t get [his] disabilities. And, like, it’s all just been — I — yeah, I — I can’t even put it into words, it’s just so wrong. I - - -
5. Right. So what did [Ms Morrison] say to you when she rang?
6. She said, [Suzette] said that her and I have been doing stuff that adults do. And we have not, I promise you that, like. I don’t know how clear I can be.

Legal principles

‘Incriminating conduct’ is defined in s 18 of the Jury Directions Act to mean conduct that amounts to an implied admission by the accused of having committed an offence charged or an element of an offence charged or which negates a defence to an offence charged. For these purposes, ‘conduct’ relevantly includes any act of the accused occurring after the event or events alleged to constitute an offence charged.
Section 20 of the Jury Directions Act governs the use of evidence of an accused’s incriminating conduct, relevantly in the following terms:

Evidence of incriminating conduct
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a) the prosecution has given notice in accordance with section 19; and
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
...
(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

The Jury Directions Act provides for two directions. The direction in s 21 is mandatory, while that in s 22 may be given if defence counsel requests it (as happened in the present case).^[35] Those sections relevantly provide:

21 Mandatory direction on use of evidence of incriminating conduct
(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
...
22 Additional direction on incriminating conduct
If the trial judge gives, or proposes to give, a direction under section 21, defence counsel may request under section 12 that the trial judge also direct the jury that—
(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and
(c) even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.
...

The operation of these provisions was recently explained by this Court as follows:

It is clear from the statutory provisions that the decision of a trial judge pursuant to s 20(1)(b) does not concern the admissibility of evidence but rather the manner in which evidence may be used. That is, the judge must determine whether the evidence is reasonably capable of being viewed by the jury as evidence of an implied admission by the accused of having committed an offence charged, an element of an offence charged or negating a defence to an offence charged. That determination must be based on the whole of the evidence. It involves no determination of whether the jury would so view the evidence, only whether the jury could do so. In accordance with the mandatory s 21(1)(a) direction, the jury must be directed that the evidence of conduct may only be treated as evidence of incriminating conduct if the jury concludes that the only reasonable explanation of the conduct is that the accused believed that s/he committed an offence or an element of an offence charged or negated a defence to an offence charged.
...
Hence s 20(1)(b) means that the trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. ...^[36]

In making a determination under s 20(1)(b), the judge is required to assess the plausibility of any innocent explanations for the relevant conduct.^[37] In this regard, the Court in R v Ciantar held that

if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.^[38]

To similar effect, in Scriven, Maxwell P held as follows:

In assessing competing innocent explanations, the judge is anticipating — is obliged to anticipate — how rational jurors would be likely to undertake the same exercise. But this is not a usurpation of the jury’s function. On the contrary, it is a proper safeguard to ensure that post-offence conduct is not allowed to go forward as a form of self-incrimination unless there is a rational path open to the conclusion that the conduct cannot be explained in any other way.^[39]

If the applicant succeeds in establishing that the judge should not have allowed the subject conduct into evidence, his case will then turn on whether he can establish that the judge’s decision led to a substantial miscarriage of justice. In Karam v The Queen, this Court explained that its task in applying s 276 to a case such as this requires it to:

(a) determine whether the appellant has established an error in connection with the conviction under appeal;
(b) if so, determine whether that error is ‘fundamental’ or a ‘serious departure’ from proper trial processes, so as necessarily to have resulted in a substantial miscarriage of justice;
(c) if that has not been shown, determine whether the appellant has established that the error may have affected the result of the trial;
(d) if so, there will be a substantial miscarriage of justice unless the respondent establishes that the conviction was inevitable.^[40]

Judge’s ruling and direction to the jury

After setting out the applicable legal principles, the judge summarised the test to be applied, namely ‘whether the jury acting rationally could conclude that the only reasonable inference from the post offence conduct indulged in by the accused is that contended for by the prosecution’. The judge said this required him to assess the plausibility of any innocent explanation for the relevant conduct. As aids in that assessment, he referred to the extracts from Ciantar and Scriven set out above.^[41]
The judge ruled that the evidence was admissible. He said:

In my view, it is the timing or the contemporaneity of the accused’s conduct with regards to his knowledge that his daughter is at the police station having made serious allegations of misconduct that gives the evidence its probative value, such that a rational jury acting reasonably could conclude that the only reasonable explanation of the conduct is that the accused held the relevant belief described in s 21 of the [Jury Directions Act].
[The applicant’s] conduct is disputed. There are other explanations capable of being offered to the jury with regards to the conduct which could be described as innocent but, in my view, pursuant to the test set out in s 20(1)(b) of the [Jury Directions Act], the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct. Having said that, in my view, the evidence adduced by the prosecution should be limited to conduct itself, not to demeanour evidence...
... the prosecution may only lead limited evidence from [Ms Morrison’s] second VARE with regards to her indicating to the [applicant] that [Suzette] is at the police station and then the [applicant] going into the shower and punching a hole in the shower. I will not allow evidence with regards to anger, changed behaviour, and certainly not allow any evidence of any previous damage. It is the conduct itself in my view which forms the basis of the incriminating conduct.
In my view, it is appropriate in this case to allow the prosecution to adduce that evidence having regard to the mandatory directions contained in s 21 of the [Jury Directions Act] with regards to the degree of satisfaction that the jury would need to reach and also the protections contained in s 22 of the Act with regards to there being all sorts of reasons why a person might behave in that particular manner in all the circumstances. It is my decision that the prosecution should be allowed to adduce the evidence of incriminating conduct as I have described it and I so rule.

In due course, the judge accordingly directed the jury as follows:

In this trial, the prosecution argued that you can use the evidence, that [the applicant] punched a hole in the shower upon learning that [Suzette] was at the police station in circumstances where according to the [applicant] in his interview with police, he had been told over the preceding weekend by [Ms Morrison] that [Suzette] said he and [Suzette] had been doing stuff that adults do, as evidence that he believed that he had committed the crimes alleged against him.
You may only use this evidence in this way if you find that this conduct occurred and the only reasonable explanation of this conduct is that the accused believed that he had committed the crimes alleged against him. However, I must warn you that even if you find that the [applicant] believed that he committed the offence charged, [you] must consider all the evidence when deciding whether the prosecution has proved the [applicant’s] guilt beyond reasonable doubt.
I must also warn you that there are all sorts of reasons why a person might behave in a way that makes them look guilty. This means that [the applicant] may have punched a hole in the shower even though he is not guilty of the crimes alleged against him. For example, [the applicant] may have punched a hole in the shower because of frustration over untrue allegations. Even if you think that this conduct makes [the applicant] look guilty, that does not necessarily mean that he is guilty. Remember here, that the very conduct relied upon by the Prosecution — punching a hole in the shower — is denied by the defence. It is denied that he punched that hole in the shower.
The prosecution argument with regards to this piece of evidence was it was urged upon you to find that the accused man knew that [Suzette] was at the police station with regards to things that adults do and that the only reasonable inference ... in the circumstances is that he punched a hole in the shower because he knew that the complainant was at the police station telling them what he did. [The prosecutor] relied upon the timing and the location; the shower being the scene of one of the crimes so to speak, as being important for your analysis.
Conversely, [defence counsel], with regards to this piece of evidence argued that it would be a perfectly natural response by the [applicant] if the allegations were untrue. Remembering again, the defence position is that the conduct — the smashing of the hole in the shower — is denied. ... [Defence counsel] referred to the [applicant’s] obvious expressions of frustration in the [police] interview. Ultimately, [defence counsel] argued that this piece of evidence is of no use to you.

Submissions

The applicant submitted that the judge erred by failing to conduct any assessment of the plausibility of any innocent explanation for the applicant’s alleged conduct in the bathroom.^[42] The applicant submitted that such an explanation was available in this case. He submitted that, in circumstances where he claimed to be innocent and understood that false allegations had been made but then retracted, it was natural for him to have responded with frustration and anger upon learning that the matter had not been resolved after all. In circumstances where that explanation stands alongside the alternate explanation relied on by the prosecutor, the applicant submitted that the evidence was intractably neutral. It followed that the judge should have refused to admit the evidence.^[43]
The applicant’s written case did not address the question whether the asserted error by the judge led to a serious miscarriage of justice. The question did arise at the hearing, where argument concentrated on the question whether any prejudice flowed from the judge’s ruling. In this respect, the applicant submitted that the conduct was ‘more evidence of wanton aggression and violence in the home in circumstances where there was a significant overlay already of violence and aggression’. The applicant submitted, further, that the inadmissible evidence could have been relied on by the jury to reason towards a conviction.
The respondent noted that the judge’s ruling was made after hearing submissions from defence counsel arguing that the applicant’s conduct could be attributed to the frustration of an innocent person accused of serious crimes. Against that context, the respondent submitted that an analysis of the plausibility of possible innocent explanations was ‘necessarily implicit’ in the judge’s analysis.
The respondent submitted that the jury could logically have excluded the innocent explanation advanced by the applicant. The ‘crystallisation’ of Suzette’s complaint at the police station, following her disclosure of the allegations to Ms Morrison days earlier, was a moment where the applicant recognised that the allegations would now be dealt with by the police. It was said that this presented a powerful explanation for the applicant’s conduct that could reasonably exclude the innocent explanation he advanced.
The respondent submitted that, even if the applicant succeeded in establishing that the judge was in error in admitting the evidence, he had failed to show that the error could have affected the result of the trial. In that respect, the respondent pointed to the judge’s directions to the jury, excerpted above, arguing that they cured any prejudice that might otherwise have been occasioned by the judge’s ruling. The respondent noted that the applicant made no complaint about these directions at trial.

Consideration

For the reasons advanced by the applicant, the judge should not have left to the jury the question whether the alleged damage the applicant did to the shower amounted to incriminating conduct. In short, the evidence in this respect was ‘intractably neutral’. Self-evidently, if he punched a hole in the wall, the applicant was very angry, and it can readily be inferred that Suzette’s attendance at the police station was the cause of his anger. Beyond that, however, it is impossible to go.
The evidence indicates that Suzette had made earlier allegations of sexual offending against the applicant, which she had subsequently withdrawn.^[44] Whether or not a person in those circumstances has actually offended as alleged, they might well be angry to discover that the allegations were not only persisted in after all, but that the complainant had taken the further step of going to the police station — by obvious inference, to report the allegations. The person’s angry reaction is explicable by the revival of the allegations, irrespective of their truth. As such, it is impossible to conclude that the only reasonable explanation for the applicant’s conduct was that he held the belief that he had committed the offences alleged. In the words of Maxwell P in Scriven, the jury could not dismiss any innocent explanation for the applicant’s conduct as untenable.^[45]
It follows that the precondition for treating the evidence of the applicant damaging the shower as evidence that he believed that he had committed the offences charged could not be satisfied. Accordingly, the evidence should not have been admitted.
The question, then, is whether the fact that the jury was left with this evidence, and were instructed as to its potential use as evidence that the applicant believed that he had committed the offences, caused a substantial miscarriage of justice. More specifically, the issue is whether the applicant has established that the error may have affected the result of the trial.^[46]
The provisions of the Jury Directions Act governing incriminating conduct are unusual in that the judge has a ‘gatekeeper’ role and the evidence may not ultimately be able to be used by the jury as evidence of incriminating conduct despite being admitted only for that potential purpose. As the Court in Lynn put it,

Under s 20(1)(b), the judge has a gate-keeper role. The central issue is the capacity of the evidence to found a process of reasoning. The judicial determination that the evidence has the relevant capacity is a necessary pre-condition to the later determination by the jury whether or not to adopt that reasoning, subject to the mandatory direction in s 21(1)(a). Section 20(1)(b) is a broad filter as to whether the evidence is fit for the jury’s consideration as an implied admission of guilt. Section 21(1)(a) constrains the jury in how that consideration is performed.
The combination of these provisions indicates that the [Jury Directions Act] contemplates that post-offence conduct evidence may be presented to the jury as evidence of incriminating conduct of the offence charged that ultimately may not be able to be treated as such by the jury because there are other reasonable explanations for that conduct. In other words, evidence of conduct explicable by more than one reasonable argument will, usually, pass through the gateway in s 20(1)(b).^[47]

In short, the Act

contemplates that conduct evidence will be presented to the jury as evidence of incriminating conduct of the offence charged but ultimately not treated as such by that jury.^[48]

On one view, if the jury obeyed the judge’s directions, they would inevitably have concluded that the evidence was equivocal and could not be used as evidence that the applicant believed he had committed the offences. In reality, however, by admitting the evidence and directing the jury to consider the matter, the judge conveyed to the jury that it might legitimately reason that the only reasonable explanation for the applicant’s conduct was that he held the belief that he had committed the offences charged.
It follows that the error in admitting the evidence may have affected the result of the trial. The respondent did not seek to establish, in that circumstance, that the convictions were inevitable.^[49] In view of the matters we have discussed in considering grounds 1, 2 and 3, that concession is plainly correct. It follows that there was a substantial miscarriage of justice. Leave should accordingly be granted in respect of this proposed ground, the appeal allowed and a new trial ordered.

PART D: CONCLUSION

Leave to appeal should be granted in respect of ground 4, but otherwise refused. The appeal should be allowed. The convictions should be set aside and a new trial ordered.

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^[1] Section 50C(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.

^[2] A pseudonym.

^[3] The applicant initially advanced two further grounds. The proposed fifth ground argued that certain evidence admitted at trial was inadmissible distress evidence. The applicant abandoned that ground at the beginning of the hearing. The proposed sixth ground argued that a fundamental irregularity took place in the trial process when the judge met with Suzette ahead of her cross-examination at a special hearing. The applicant abandoned that ground following the High Court’s decision in DPP v Smith (2024) ALJR 1163; [2024] HCA 32.

^[4] A pseudonym.

^[5] These allegations are indirectly relevant to the applicants’ first three proposed grounds of appeal.

^[6] Ms Morrison gave her evidence after the judge issued her a certificate under s 128 of the Evidence Act.

^[7] A pseudonym.

^[8] A pseudonym.

^[9] A pseudonym.

^[10] Emphasis added.

^[11] Cf Ward v The Queen [2017] VSCA 37; (2017) 54 VR 68.

^[12] Ward v The Queen [2017] VSCA 37; (2017) 54 VR 68, 81 [51]. See also 82 [54], 82–3 [57]–[59] (Maxwell P and Redlich JA, Whelan JA agreeing at [143]).

^[13] Crimes Act 1958, s 35A.

^[14] At the hearing, counsel for the applicant seemed to accept at one point that there was no inconsistency between Suzette’s VARE and special hearing evidence in respect of oral penetration, but he did not resile from this submission, which had been set out in his written case.

^[15] Counsel suggested that this should read ‘hallway’.

^[16] At the hearing the respondent described the answer as itself equivocal.

^[17] Emphasis added.

^[18] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 146–7 [42]–[45] (‘Pell’) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

^[19] Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

^[20] Ibid 144–5 [37].

^[21] Ibid 145 [37].

^[22] Criminal Procedure Act 2009, s 276(1)(a).

^[23] Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); see also M [1994] HCA 63; (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ). See Gardner (a pseudonym) v The King [2024] VSCA 83 [85]–[89] (Emerton P, McLeish and Macaulay JJA).

^[24] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596–7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]).

^[25] M [1994] HCA 63; (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ).

^[26] Ibid 493, 494.

^[27] Ibid 494.

^[28] Paull v The King [2024] VSCA 193 [26] (McLeish and Orr JJA). See also M [1994] HCA 63; (1994) 181 CLR 487, 501 (Brennan J), citing Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, 451–2 (Dawson J).

^[29] Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); M [1994] HCA 63; (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ).

^[30] Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); M [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).

^[31] Pell [2020] HCA 12; (2020) 268 CLR 123, 150 [56] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

^[32] M [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Dean, Dawson and Toohey JJ).

^[33] Alec (a pseudonym) v The King [2023] VSCA 208 [89]–[90] (Priest, Walker and Taylor JJA).

^[34] See [48] above.

^[35]Section 14 requires the judge to give the direction, if requested, unless there are good reasons for not doing so. Section 16 also requires the judge to give a direction if the judge considers that there are substantial and compelling reasons for doing so, even though defence counsel has not requested the direction.

^[36] DPP v Lynn [2024] VSCA 62 [114], [126] (citations omitted) (Emerton P, Taylor and T Forrest JJA) (emphasis in original) (‘Lynn’).

^[37] DPP v Scriven [2015] VSC 220 [22] (Maxwell P), citing R v Lam (No 18) [2005] VSC 292 [7] (Redlich J) (‘Scriven’).

^[38] [2006] VSCA 263; (2006) 16 VR 26, 48 [72] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) (citation omitted) (‘Ciantar’).

^[39] Scriven [2015] VSC 220 [24].

^[40] [2023] VSCA 318 [216] (Beach, McLeish and Kennedy JJA) summarising reasoning from Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 and Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421.

^[41] At [141]–[142].

^[42] The judge told the jury that the applicant denied that he had punched a hole in the wall of the shower.

^[43] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 48 [72] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

^[44] See [136] above.

^[45] Scriven [2015] VSC 220 [25].

^[46] See [143] above.

^[47] [2024] VSCA 62 [115]–[116] (Emerton P, Taylor and T Forrest JJA).

^[48] Ibid [127].

^[49] See [143] above.

Authorities Cited19

Referred to (19)