Greensill v The Queen [2012] VSCA 306 (13 December 2012)

Last Updated: 17 December 2012

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0221

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CRIMINAL LAW – Appeal – Conviction and sentence – Sexual offences – Nine counts of indecent assaults against two children under ten – Children were former students 30 years ago – Whether open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt – Whether trial judge erred in failing to give a forensic disadvantage direction – Section 61 Crimes Act 1958 and Section 165B Evidence Act 2008 considered and compared – No request made to give forensic disadvantage direction – Obligation of trial judge to give such directions as are essential to avoid a miscarriage of justice discussed –Whether 'fresh evidence' adduced after trial demonstrated a substantial miscarriage of justice – Whether verdicts unsafe and unsatisfactory – Appeal allowed – Verdicts unsafe and unsatisfactory – Convictions and sentence quashed – Verdicts of acquittal entered.

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REDLICH JA

OSBORN JA

PRIEST JA:

Orders on the appeal

1 At the conclusion of oral argument, on 22 November 2012 the Court made orders granting the application for leave to appeal against conviction and allowing the appeal. We ordered that the convictions and sentences be quashed, and a judgment of acquittal be entered on each count upon which the appellant was found guilty at trial.[1] The Court announced that it would later provide reasons for the orders. These are those reasons.

Introduction

2 Following an 11 day trial in the County Court, on 9 June 2010 the appellant was convicted of nine counts of indecent assault. Seven of those counts involved ‘RS’, and two ‘SC’. Each of the nine guilty verdicts arose out of what might conveniently be called the ‘tent incident’. The tent incident was said to have occurred in 1979, when both RS and SC were aged eight years. The jury acquitted the appellant of a further 11 counts of indecent assault.

3 On 21 July 2010, after orders for cumulation were made as between individual sentences on each count, the appellant was sentenced to a total effective sentence of imprisonment of 5 years, and a non-parole period of 2 years and 8 months was fixed.

4 Originally there were two grounds of appeal against conviction. They are:

1. The verdicts on Charges 1-7, 19-20 are unreasonable or cannot be supported having regard to the evidence.
2. The applicant seeks to rely on fresh evidence that arose out of the victim impact statement tendered on the plea and the account given to Dr Dennerstein for the purposes of the subsequent compensation hearing.

On the hearing of the application for leave to appeal, the appellant sought to add a further ground as follows:

3. The learned trial judge erred in her directions as to the impact of the delay between the alleged offending (1979) and the applicant’s arrest (March 2008) by failing to give any direction in relation to the significant forensic disadvantage suffered by the applicant and, as a consequence, there has been a substantial miscarriage of justice.

A single ground relating to sentence claimed that the total effective sentence and non-parole period are manifestly excessive. In light of the conclusions reached with respect to conviction, it is unnecessary further to consider sentence.

Overview

5 During 1979 the appellant taught at a primary school in an eastern suburb of Melbourne. RS and SC were students in her class. It was alleged that during the year she indecently assaulted RS and SC while in school buildings and at her home (where the tent incident is said to have occurred). The defence case was that none of the alleged sexual activity happened. The credibility and reliability of the complainants’ evidence was in issue. Particularly in the case of RS, it was alleged that there was a financial motive in complaining. It was conceded, however, that if activities fitting the description of that alleged by RS and SC had actually occurred, then those activities would constitute indecent assault.

Prosecution Evidence

6 At the time of trial RS was 39 years of age. In 1979 he was aged eight years and was in the appellant’s class. He thought himself to be the ‘teacher’s pet’. On occasions the appellant forced him to have sexual intercourse and oral sex with her.

7 The first time any sexual encounter occurred was in a tent in the backyard of the appellant’s house on a Friday or Saturday night. It had been arranged that he and SC, who was in his class, would stay overnight in the tent. That night there was ‘a big bonfire’ party at the local council reserve which he, SC, the appellant (and perhaps her husband) attended.

8 RS said that after returning to the appellant’s house, he and SC went into the tent to go to bed. Once they had turned in for the night, the appellant entered the tent dressed in a ‘nightie’ and knelt between him and SC. She kissed RS passionately on the lips (count 1).

9 RS gave evidence that the appellant then started to touch his penis over his pyjamas. She then took his pants off and masturbated his erect penis (count 2). The appellant was doing the same thing to SC at the same time.

10 The appellant then asked RS to ‘finger’ her, and she put his hand on her vagina (count 3). According to RS, the appellant lay down, took her knickers off, put him on top of her and guided his erect penis into her vagina saying ‘stick it up me’(count 4).

11 RS said that after a few minutes, she did the same thing to SC and used him to ‘fuck herself’ while saying ‘stick it up me’. A few minutes later the appellant returned to RS. She put him on top of her, put his penis into her vagina again and hung onto his hips to ‘sort of fuck herself’ (count 5). This continued until RS said he ‘needed to do a wee’.

12 RS and SC went outside the tent to urinate. While this was occurring RS remarked to SC that his ‘wee looked funny’, because it was ‘all gooey and wet’. (In cross-examination, RS explained that he was ‘just saying there was semen in there’.) SC also said ‘our wee looked funny’. Both then went back into the tent.

13 RS said that after entering the tent he lay down and pretended to be asleep. The appellant again started ‘having sex’ with SC.

14 The appellant then started to ‘pull’ RS’s penis again while saying that she knew he was pretending to be asleep (count 6). RS gave evidence that the appellant then pulled his pyjama pants down, put his penis in her mouth and started sucking it (count 7).

15 As will be recalled, the appellant was found guilty by the jury of each charge relating to the tent incident. The jury acquitted her of nine further counts involving RS (counts 8 to 16) – relating to alleged incidents of masturbation, oral sex, sexual intercourse and associated activities – which were alleged to have occurred at the appellant’s home and at school. It will be noted that there was no independent support for RS’s evidence on these counts.

16 It is convenient at this point to note that the appellant was also acquitted of two counts involving SC (counts 17 and 18), which were incidents where SC alleged that he was made to touch the appellant’s breasts in her bedroom and in a storeroom at school. There was no support for SC’s evidence on those counts. As will be seen, however, the jury also convicted the appellant on the counts with respect to the tent incident involving SC. It may thus safely be concluded that the jury regarded the evidence of RS and SC as mutually supportive.

17 SC gave evidence that he was born in December 1970. He would therefore have been aged eight years throughout most of 1979. The appellant was his grade 3 teacher. He said he was ‘one of her favourites or her pets’, and had private tuition with her at her home.

18 On one occasion SC went to the appellant’s house for the weekend ‘to camp in the backyard in a tent’ with his classmate, RS. As there were significant differences between RS’s and SC’s accounts of the tent incident, it is necessary to set out SC’s account in some detail. The night of the tent incident was cold. There was a bonfire in a park or reserve. The tent was set up in the appellant’s backyard. SC said that several times during that day the appellant said to both him and RS things like, ‘we’re going to have sex tonight’, and ‘we’re going to have a root tonight’. That night they all went into the tent at the same time. SC gave evidence that the appellant sat up, pulled her nightie and underpants off, and put them under a pillow. The appellant then ‘took [RS’s] pants off, she sucked on his penis and was playing with it, and got him on top of her, and I think he guided his ... penis into her vagina’. SC said he could see their silhouettes because there was a fire outside and light coming from the house. SC was ‘sitting there sort of watching’. He heard the appellant give RS instructions such as ‘No, push, no keep pushing’.

19 SC gave evidence that the appellant then turned to him, pulled off his pyjamas, sucked his penis making it erect (count 19), and put him on top of her. The appellant put his penis inside her vagina (count 20). The appellant said in an authoritative tone: ‘If you wriggle around a bit it will be better, hurry up, come on’. This went on for about ten minutes. SC said he became bored and told the appellant, ‘I don’t want to do this, I want to go and play’. The appellant said, ‘If you don’t do what I tell you to do, you’re going to leave the tent and [RS] and I will be alone, and you’ll have nothing more to do with it’. SC said he went into the house and got a drink, saw the appellant’s husband doing a carving and ‘fiddled around the house for a while’. He said he then went back to the tent, thinks he ‘had a pee’ outside the tent, went back inside and tried to go to sleep. RS and the appellant were in the same bed but he did not know ‘if they were actually having intercourse any more or not’.

20 The next day the appellant did not speak to SC ‘at all’. SC said she drove [RS] and him home. She dropped SC home saying, ‘We’re going to have a coffee and tea at [RS’s] place and you’re not welcome’, then threw his suitcase into the street which ‘spewed open with clothes everywhere’, and drove off. After that time his relationship with the appellant changed. SC said he was no longer a favourite. RS ‘more assumed that role with her’ and he spent a lot more time with the appellant.

21 RS’s mother, GS, gave evidence. RS is the youngest of her four children. She recalled a time that RS stayed at the appellant’s house during grade 3. The appellant had asked her permission for this to occur three or four times before she agreed. RS stayed at the appellant’s house during October. She recalled this time of year because it coincided with major knee surgery which her daughter underwent at that time. The appellant told GS that her son and SC would be staying in tents in the backyard. Her daughter was present with her when she dropped RS at the appellant’s house and when she picked him up the next day. When she picked RS up from the appellant’s house, GS recalled two tents in the backyard. RS told her he slept in one of the tents with the appellant. She observed that RS was very quiet when she picked him up. GS said she and her husband had spent time with the appellant and her husband socially, including a number of outings to a local restaurant together. RS never spoke with her about anything of a sexual nature occurring during his primary school years. The last time she saw the appellant was at a school sports day after RS was in grade 3.

22 NS is RS’s ex-wife. Her statement to police, made 29 August 2007, was read into evidence. In it, she said that in 1995 she and her husband were having a general conversation. They were newly married and without children. RS mentioned that everyone had thought he was the teacher’s pet at school, but that he was not. The teacher had done wrong by him and had tried to frame him with a theft of money. He said he did not want to talk about it and she did not pursue it. Following this conversation, from time to time RS would say things to the effect of, ‘Maybe I should track this teacher down, take her to court, sue her’; and that this teacher ‘was doing something to him in the school storeroom when another teacher walked in’. The other teacher had a ‘quizzing’ look on her face but RS’s teacher came up with some excuse as to why they were there. RS told NS that he would quite often go to the teacher’s house.

23 Suzanne Robinson is RS’s older sister. Her police statement and her evidence given at the committal hearing were read into the trial. Her evidence was that around 1979, when she was aged 14, she used to babysit the appellant’s children. She primarily looked after the appellant’s infant son. When she babysat, RS usually was also at the appellant’s house, doing activities with the appellant. Ms Robinson never stayed the night at the appellant’s house. She recalled a discussion about RS staying there overnight and camping in the backyard.

24 Detective Senior Constable Ian Brown investigated. After speaking with RS in relation to his statement, in October or November of 2007 he contacted SC on the basis that RS had nominated him as being present during the activities alleged in the statement. SC told Detective Brown that he knew RS. He told Mr Brown of having sex with his grade 3 teacher with RS in a tent in the backyard of her house. He told Mr Brown that the teacher had actual penile-vaginal intercourse with him and RS in the tent, and that there were other incidents at the school in the storeroom. Detective Brown asked SC to make an appointment so as to take his statement. SC then asked after RS, and said he had not seen or heard from RS since primary school. He said he wanted to speak with RS before committing to an appointment to make a statement. Mr Brown said that he would speak with RS and see if he wanted to speak with SC. After this conversation, Detective Brown immediately telephoned RS, updated him on the investigation and explained that SC wanted to speak to him. RS agreed to speak with him, so Mr Brown gave him SC’s number. Detective Brown then hung up, and telephoned SC about thirty minutes later. SC confirmed that he had spoken with RS in the intervening period.

Defence Case

25 No evidence was called in the defence case. Reliance was placed on the appellant’s denials in the record of interview with police.

26 The appellant also relied upon several factors in her defence. They included:

• During RS’s marriage to his ex-wife, RS would sometimes say that his third grade teacher had done wrong by him in framing him for stealing money, and that he should ‘track this teacher down, take her to court, sue her’.

• In 2007, RS and the appellant’s husband were employed on the railways when the appellant’s husband was killed in the course of his employment at a level crossing.

• RS had learned of this fatality and understood it likely to result in the appellant receiving a compensation payment.

• RS’s complaint was initiated shortly after this event.

• RS initiated his complaint by attending on a solicitor’s firm with high profile experience in litigating compensation claims for sexual assault.

• The investigating officer gave evidence that the two complainants spoke to one another by telephone while the matter was being investigated and before CS agreed to provide a statement, a fact which was repeated in CS’s statement but later denied by both complainants.

• The evidence gave rise to a strong possibility of collusion between RS and SC in relation to the tent incident.

• The appellant was a person of good character. She had no prior or subsequent convictions.

Proposed Ground 3: absence of a forensic disadvantage direction

27 The appellant faced formidable obstacles in persuading this Court that the trial judge had erred in failing to give a forensic disadvantage direction, since such a direction apparently had been eschewed by her counsel at trial.

28 Prior to final addresses, the trial judge discussed with counsel the directions that should be included in her Charge to the jury. When the subject of delay in complaint was raised, the prosecutor submitted that: ‘Forensic disadvantage is not being put at any stage, so it’s a balanced approach. As I understand it, it hasn’t been put at any stage.’

29 When asked by the trial judge whether he had ‘any matters to raise in that regard’, defence counsel replied, ‘No’; although he agreed that with respect to evidence of complaint the judge had ‘to say something about it’. The following exchange then took place:

HER HONOUR: But you don’t make any application that I should say anything about forensic disadvantage or anything of that nature?

[DEFENCE COUNSEL]: No.

30 Shortly later in the discussion between prosecuting counsel and the judge, reference was made to s 61 of the Crimes Act 1958, and the trial judge said:

Her Honour: [Section] 61 is the relevant provision. I will just make sure that it hasn’t been now put into – I don’t believe it has – into the Evidence Act. Even if it has, I would have thought it would be in similar terms. Do you wish to look at that provision?

It appears that despite the her remarks, however, no distinct submission was made to the judge at any point by either counsel as to the nature and effect of s 165B of the Evidence Act 2008.

31 During the course of the Charge, the trial judge directed the jury as follows:

I must direct you that there may be good reason why a victim of sexual assault may delay or hesitate in complaining about such an offence. In this case, both of the complainants have referred to the considerable embarrassment they felt at what had occurred. [SC] has given evidence that it was only when the police had contacted him that he chose to tell them about what he said occurred to him.

So far as it went, this direction was in accordance with the legislative regime.[2] Indeed, the judge was obliged to give such a direction.

32 A little after this direction had been given, during a break in the delivery of her Charge, the trial judge asked defence counsel whether he had any exceptions to the Charge to that point. The following exchange occurred:

[DEFENCE COUNSEL]: Yes, Your Honour. In relation to complaint, I understood Your Honour is going to say something about delay in that context?

HER HONOUR: Yes, I know I canvassed that with counsel, but when I was looking at the revisions and I can be corrected in relation to this, I didn’t understand that you – it might be that you did make an application in that regard but I didn't understand that you were making an application in that regard and I took the view from something I've read that an application had to be made and that's why I asked about that in relation to, that is insofar as forensic disadvantage and those matters are concerned. Trying to see whether you did make such an application, Mr [Defence Counsel]?

[DEFENCE COUNSEL]: I didn't make such an application but I was of the view that it was covered by s 61, but maybe I'm wrong about that.

HER HONOUR: Well, look I could well be wrong about that. In any event, is it your submission that there should be something said in that regard? You make an application if one is warranted?

[DEFENCE COUNSEL]: Yes, Your Honour. Yes, I do. ... ^[3]

What it was that defence counsel was meaning to convey in this part of the discussion is somewhat Delphic. The discussion then continued with the trial judge making specific reference to, and reading from, ss 61(1A) to (1F), and s 61(2) of the Crimes Act. Shortly after, the judge observed that, ‘There is also a cross-referencing to the Evidence Act in relation to this provision, as I understand’.

33 There then occurred the further cryptic exchange:

[DEFENCE COUNSEL]: No, but that’s the way it would be based and the submission would be not because of the forensic disadvantage but it would be because of the nature of the evidence and the denial of contact is of sufficient weight to raise on the evidence that the delay in complaining et cetera, as Your Honour just read in my submission, that would be the foundation of it, and that’s indeed the way I address[ed] the jury. I’d put it on that basis, Your Honour, rather than being able to point to any significant forensic advantage that has been lost by Mrs Greensill with the passage of time.

HER HONOUR: No, I understand that. So you do make application then?

[DEFENCE COUNEL]: Yes, Your Honour, I do in that regard.^[4]

34 For his part, the prosecutor submitted:

Your Honour, clearly there's been no evidence whatsoever of any significant forensic disadvantage, Your Honour, so I don’t want to spend time on that aspect, Your Honour. Firstly, in my submission Your Honour certainly ought not give this sort of direction that my friend is asking Your Honour to pursuant to his application, it doesn’t come near that. The sort of matters that would raise that possibility, where, for instance, the complainants really have no idea and in the delay they say something happened. In this case we have the opposite, they're very specific about each and every individual count. The delay that’s required to operate that section, Your Honour, only comes about in my submission, Your Honour, where the delay has caused in them an inability to articulate, or to describe the incidents that occurred.^[5]

35 It is fair to say that the trial judge did not obtain the assistance from counsel on this aspect that was desirable.

36 In the end, the judge gave no direction concerning any forensic disadvantage that the appellant suffered consequently to the delay.

37 In order to assess the viability of the proposed Ground 3, it is necessary to discuss the legislative regime which bears upon delayed complaint.

38 Directions concerned with forensic disadvantage in cases such as this are circumscribed by both s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008. In order to appreciate both the similarities and distinctions between the two provisions, it is necessary to set both out in full.

39 Section 61 of the Crimes Act provides:

61 Jury warnings

(1) On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence –

(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and

(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge –

(i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and

(ii) must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and

(iii) must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.

(1A) If the judge, on the application of the accused in a proceeding to which subsection (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must, in any terms that the judge considers appropriate having regard to the circumstances of the case –

(a) inform the jury of the nature of the forensic disadvantage suffered by the accused; and

(b) instruct the jury to take that disadvantage into consideration.

(1B) Despite subsection (1A), a judge must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.

(1C) For the purposes of subsection (1A), the passage of time alone is not to be taken to cause a significant forensic disadvantage.

(1D) Nothing in subsection (1A) requires a judge to give a warning referred to in that subsection if there is no reason to do so in the particular proceeding.

(1E) A judge must not give a warning referred to in subsection (1A) or a warning to the effect of a warning referred to in subsection (1A) except in accordance with this section and any rule of law to the contrary is hereby abrogated.

(1F) Nothing in subsections (1A) to (1E) affects the power of a judge to give any other warning to, or to otherwise inform, the jury.

(2) Nothing in subsection (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.

(3) Despite subsection (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which subsection (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.

40 Section 165B of the Evidence Act provides:

165B Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by the accused, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the accused solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the accused may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section –

(a) delay includes delay between the alleged offence and its being reported; and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

41 There are several ways in which the two sections are similar, and several in which they are dissimilar:

• First, the information required to be given, and the prescription against certain warnings, required by s 61(1)(b)(i), (ii) and (iii) Crimes Act, arises if evidence is given, or a question is asked of a witness, or a statement is asked in the course of an address on evidence, which tends to suggest that there was delay in making a complaint by the person against whom the offence the offence is alleged to have been committed. Section 165B Evidence Act has no similar specific trigger.

• Secondly, s 61(1A) Crimes Act and s 165B(2) Evidence Act bear some similarities. Both require an application by the accused. Both require satisfaction of a significant forensic disadvantage because of the consequences of the delay (although s 61(1A) has the additional words in making the complaint). Both require the trial judge to inform the jury of the nature of the disadvantage. And both require the judge either to inform or instruct the jury to take that disadvantage into consideration or account.

• Thirdly, each of s 61(1B) Crimes Act and s 165B(4) Evidence Act proscribe directions to the jury that it would be dangerous or unsafe either to find the accused guilty (s 61(1)(b)(iii) and s 61(1B) Crimes Act) or convict the accused (s 165B(4) Evidence Act), because of the delay (s 61(1B) Crimes Act), or solely because of the delay or the forensic disadvantage suffered because of consequences of the delay (s 165B(4) Evidence Act).

• Fourthly, in a like vein, s 61(1C) Crimes Act provides that the passage of time alone is not to be taken to cause a significant forensic disadvantage, and s 165B(6)(b) Evidence Act holds that significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

• Fifthly, both s 61(1E) Crimes Act and s 165B(5) Evidence Act require that a judge not give a warning about forensic disadvantage except in accordance with this section. (As will become apparent shortly, these words are of prime importance in the interpretation of each section.)

• Sixthly, although as has been observed, s 61(1E) Crimes Act and s 165B(5) Evidence Act bear some similarity of expression, s 61(1E) Crimes Act has the added feature that, not only must the judge give the proscribed warning except in accordance with the section, but ‘any rule of law to the contrary is hereby abrogated’. There is no equivalent expression of abrogation in s 165B Evidence Act.

• Seventhly, any forensic disadvantage warning must be tailored to the particular case. By s 61(1A) Crimes Act the information or instruction must be in any terms that the judge considers appropriate having regard to the circumstances of the case. In a similar fashion, s 165B(4) Evidence Act provides that it is not necessary that a particular form of words be used in informing the jury of the nature of the forensic disadvantage suffered and the need to take that disadvantage into account (s 165B(4) Evidence Act).

• Eighthly, s 61(1) Crimes Act, and s 165B Evidence Act, do not affect any power of the judge to give any other warning to, or otherwise[6] inform, the jury: s 61(1F) Crimes Act, s 165B(5) Evidence Act.

• Ninthly, s 61(2) Crimes Act specifically provides that nothing in s 61(1) prevents a judge form making any comment[7] on evidence given in the proceeding that it is appropriate to make in the interests of justice.[8]

• Tenthly, s 61(3) Crimes Act contains the proscription that, despite s 61(2), the judge must not make any comment on the reliability of the evidence of the complainant if there is no reason to do so in the particular proceeding in order to ensure a fair trial.

• Eleventhly, s 165B Evidence Act relieves the judge of the need to comply with s 165B(2) (which on its face requires a direction on forensic disadvantage on the application of the accused if the judge is satisfied that the accused has suffered a significant forensic disadvantage) if there are good reasons for not doing so.

42 Sub-section (1)(b) was substituted, and sub-sections (1A) to (1F) inserted, into s 61 by the Crimes (Sexual Offences) (Further Amendment) Act 2006. The changes were an apparent response to the High Court’s decision in Longman,[9] and were prompted by a report of the Victorian Law Reform Commission, which recommended:[10]

7.132 The Commission remains of the view that the phrase ‘unsafe/dangerous to convict’ is likely to be interpreted by juries as a direction to acquit. Widespread use of Longman warnings may also serve to perpetuate old assumptions surrounding female victims of sexual assault – in particular that women lie about rape and are therefore unreliable witnesses. Such jury warnings should be restricted to situations where the judge is satisfied that certain specific situations exist – where there is evidence that the accused has suffered a forensic disadvantage as a result of a delay in reporting, or where there is evidence that the accused has been prejudiced in some other way as a result of other circumstances in the case. Ideally, judges will rarely, if ever, need to use the words ‘dangerous or unsafe to convict’ in warning juries in these circumstances. ...

43 In the Second Reading speech, the Attorney General said:[11]

The current law in the Crimes Act 1958 in relation to jury warnings in sexual offence cases was designed to reflect the reality that many sexual offence victims delay reporting the offence. The Crimes Act provides that a judge must not warn or suggest to the jury that the law regards complainants in sexual offence cases as an unreliable class of witness.

The Crimes Act also provides that if delay in reporting the offence is raised as an issue in the trial, the judge must tell the jury that there may be good reasons for such delay.

Despite the intent of these provisions, the High Court has said that they do not prevent a trial judge from commenting that a delay in reporting a sexual assault could affect the credibility of the complainant. This was developed in the case of Crofts v. R and is known as a Crofts warning. This means that in certain sexual assault cases where there has been a delay in reporting, the judge may be required to give conflicting instructions to a jury. On the one hand the judge must not warn or suggest to the jury that the law regards complainants as an unreliable class of witness, yet on the other hand they are obliged by law to comment that a delay in reporting affects the credibility of the complainant.

The High Court has also held that the law does not remove the need to warn juries about the effect of delay on the ability of the accused to put forward a defence. This law was developed in the case of R v. Longman and is known as a Longman warning. The warning advises the jury in sexual offence cases that by reason of delay it would be 'unsafe or dangerous' to convict on the uncorroborated evidence of the complainant alone.

The Victorian Law Reform Commission found that the purpose of the current legislative provisions is being undermined by these common-law warnings. The statutory directions and the common-law directions appear to contradict each other and consequently cause confusion for juries.

It has also been found that the widespread use of these warnings serves to perpetuate outdated assumptions surrounding female victims of sexual assault – in particular that women lie about rape and are therefore unreliable witnesses.

The new provisions will ensure that such warnings will be restricted to cases where a request has been made for such a warning by the accused and the court is satisfied that the accused has in fact suffered some significant forensic disadvantage due to a delay in reporting.

The mere passage of time will not necessarily establish a significant forensic disadvantage, and the judge may refuse to give the warning if there are good reasons for doing so.

These amendments address concerns that these warnings are being given routinely in cases involving increasingly shorter periods of delay and in circumstances where they had not been requested.

No particular form of words will need be used when giving the warning, but the judge must not suggest that it would be 'dangerous or unsafe to convict' the accused because of any demonstrated forensic disadvantage. This form of words, which has been routinely used in the past, has the potential to be interpreted by juries as a direction to acquit the accused and, ultimately, to usurp the jury's function in evaluating evidence. For these reasons this form of words will be prohibited.

44 Similar considerations as moved the legislature to enact s 61 of the Crimes Act in its present form also appear to underpin s 165B of the Evidence Act.[12]

45 As has been observed, both s 61(1E) of the Crimes Act and s 165B(5) of the Evidence Act provide that a trial judge may not give a warning about forensic disadvantage except in accordance with this section. Moreover, both s 61(1A) and s 165B(2) require that a warning be given on the application of the accused if the judge is satisfied that the accused has suffered a significant forensic disadvantage. An important question that arises is, absent an application by the accused for a forensic disadvantage warning, is a trial judge either obliged or permitted to give a warning if the trial judge is of the opinion that the circumstances warrant such a warning?

46 There are two possible views. The first is that each section requires an application by the accused before any forensic disadvantage warning is given; and that, absent such an application, the judge is prevented from giving a warning.

47 An alternative view is that an application by the accused is not an indispensible pre condition before a warning can be given, but that once a warning is given, it must be in accordance with the respective section. In other words, the duty or capacity of a trial judge to give any warning, necessary or practical to avoid a perceptible risk of a miscarriage of justice, is unfettered, but once a direction is given, the judge must not warn the jury that it would be dangerous or unsafe to convict solely because of the delay (or the consequences of delay); must inform the jury of the nature of the forensic disadvantage; and must direct the jury to take the forensic disadvantage into account.

48 We are of the opinion that the latter view is to be preferred. It is consistent with the common law obligation of a trial judge to give any direction necessary in the circumstances to avoid ‘a perceptible risk of [a] miscarriage of justice’.[13] Spigelman CJ, writing extra-curially, described this as ‘a clear statement of the principle of a fair trial’.[14]

49 Although it may be assumed that much of s 61 of the Crimes Act 1958, and s 165B of the Evidence Act 2008, are a legislative response to particular aspects of Longman (principally, the formula of the warning, and the fact that such warnings were routinely given), it cannot have been the intention of the legislature to interfere with the fundamental obligation of a judge to ensure the fairness of a criminal trial by giving such necessary directions as the circumstances of the case dictate. As Burchett and Ryan JJ observed in Thompson v Australian Capital Television Pty Ltd:[15]

Statutory reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law. To forbid such a consequence the rule has been established (and should be adhered to: Corporate Affairs Commission of New South Wales v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322 ; [1991] HCA 28; 100 ALR 609, per Brennan J) that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions: Hocking v Western Australian Bank (1909) 9 CLR 738 at 746 American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; (1981) 147 CLR 677 at 682–3; [1981] HCA 65; 37 ALR 613, per Mason J, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed; Pearce and Geddes on Statutory Interpretation in Australia, (3rd ed, 1988), 104-5; or as Lord Reid put it in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] AC 591 at 614, ‘in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the “mischief”’.

50 Consistently with principle, in our opinion the declaration in s 61(1E) of the Crimes Act 1958 that ‘any rule of law to the contrary is hereby abrogated’ must be understood solely as an abrogation of the principle stated in Longman. It would be quite another thing altogether to treat s 61(1E) as releasing a trial judge from any obligation to give such directions where to do so was essential in order to ensure a fair trial and to avoid a risk of a miscarriage of justice.

51 Further, we note the observations of the High Court in Balog v Independent Commission Against Corruption,[16] that ‘where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred’.

52 Moreover, it is also to be noted that so far as the interpretation of s 165B is concerned, s 9 of the Evidence Act 2008 provides:

9. Application of common law and equity

(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

53 There is one further matter to which we draw attention. Section 165B of the Evidence Act 2008 was introduced some time after ss 61(1A) to (1F) of the Crimes Act 1958.[17] Whether or not the subsequently enacted s 165B has any bearing on the effect of the very similar provisions of s 61[18] is a matter that we need not consider having regard to our conclusions above.

54 This was a case where it would have been appropriate – if not highly desirable – to have given a forensic disadvantage warning. The passage of time meant that it was next to impossible to explore many of the circumstances surrounding the complainants’ accounts. There was no possibility of obtaining medical evidence to explore the capacity of the two complainants, eight years of age at the time, to engage in full penile-vaginal intercourse with an adult 28 year old woman, or to produce semen. Moreover, the evidence of an important witness had been lost to the appellant. Her husband, who was said to have been at the premises at the time of the offences, and whom SC testified was in the house when he went inside during the tent incident, had died.

55 The problem for the appellant is that, not only did counsel not ask for a forensic disadvantage direction, but it appears that he made a submission to the effect that one was not warranted. Although it is difficult to discern what forensic decision could have justified this course, nonetheless, generally speaking, an accused is bound by the conduct of his or her trial by counsel.[19] We do not consider that the circumstances here exist which should have obliged the trial judge to give such a direction to avoid a miscarriage of justice.

56 In the circumstances we would grant leave to add proposed Ground 3; but reject that ground as not made out.[20]

57 That is not, however, the end of the matter. We are of the opinion that the delay in this case, and the resulting forensic disadvantage to the appellant, have an important bearing on whether the verdicts are unsafe and unsatisfactory. To this we will return when considering the first ground of appeal.

‘Fresh Evidence’ ground

58 By Ground 2, in order to establish that there had been a miscarriage of justice, the appellant sought to rely on ‘fresh evidence’ arising out of RS’s victim impact statement and an account he gave to a consultant psychiatrist, Professor Lorraine Dennerstein, for the purposes of a compensation hearing.

59 We are of the opinion that, even were the contents of the victim impact statement to be considered fresh evidence (which we doubt) no substantial miscarriage of justice could be said to flow to the appellant by disclosure of its contents after verdicts. On the other hand, we are of the view that the contents of Professor Dennerstein’s report falls into a different category, and that part of it constitutes fresh evidence.

60 In R v Nguyen and Tran,[21] Kenny JA (with whom Winneke P and Callaway JA agreed) set out the relevant principles:

An appellate court cannot set aside a verdict on a ‘fresh evidence’ ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial: see Gallagher v R. [1986] HCA 26; (1986) 160 C.L.R. 392 at 395, 402, 410 and Mickelberg v R. [1989] HCA 35; (1989) 167 CLR 259 at 301. If this ground is made out, the verdict of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant: see Ratten v R. [1974] HCA 35; (1974) 131 CLR 510 at 518-9 per Barwick C.J. Ordinarily a court will not be satisfied that the ‘fresh evidence’ ground is made out unless:

(a) the evidence was not available, or could not with reasonable diligence have become available, at the trial;

(b) the evidence is relevant and otherwise admissible;

(c) the evidence is apparently credible (or at least capable of belief); and

(d) there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial: see Gallagher at 399, 402, 410, 421 and Mickelberg at 273, 288, 301. (If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of ‘a likelihood’, none has thus far been suggested; for it has been said that ‘likelihood’ is no more than ‘a substantial – a “real and not remote” – chance regardless of whether it is less or more than 50 per cent’: see Boughey v R. [1986] HCA 29; (1986) 161 C.L.R. 10 at 21, Mickelberg at 301, Cheney v R. [1991] FCA 37; (1991) 28 F.C.R. 103 at 108 and R. v Heffernan (unreported, Court of Criminal Appeal, 20 May 1994).

61 Although it may be accepted that the power of the Court to receive fresh evidence will be exercised sparingly, the ultimate question for the Court must always be whether or not there has been a miscarriage of justice. As King CJ said in R v McIntee:[22]

The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.

62 Jury verdicts were returned on 9 June 2010. RS made a Victim Impact Statement (‘VIS’) dated 16 July 2010, which was read aloud at the appellant’s plea hearing on 21 July 2010. An application for compensation by RS pursuant to s 85B of the Sentencing Act 1991 was conducted on 5 March 2012, with an award of compensation being made by the trial judge on 13 April 2012.

63 In the VIS, RS asserted that he joined the navy to avoid contact with his former classmates, contact with whom was a source of embarrassment. At the compensation hearing, however, he seemed to accept that he had earlier had ‘Facebook’ contact with former classmates.

64 Assuming for the sake of argument that the fact of contact with former classmates via social media was inconsistent with RS’s claimed reason for joining the navy, and assuming further that it was fresh evidence in the sense that it could not have been available with the exercise of reasonable diligence prior to the trial, we fail to see that this alleged inconsistency could have had other than a minimal impact on RS’s credit (whether taken alone or with the other suggested fresh evidence). There is nothing in this point.

65 RS also attended the rooms of Professor Lorraine Dennerstein, a psychiatrist, for the purposes of assessment preparatory to his application for compensation. The appellant submits that such attendance, and the making of the claim for compensation, is in conflict with his evidence at trial under cross-examination that, ‘I want none of your client’s money’, and he ‘just wanted the truth to come out’.

66 Again, assuming for the sake of argument that his making such a claim was inconsistent with his evidence at trial, and assuming further that it was fresh evidence in the sense that it could not have been available with reasonable diligence prior to the trial, we are of the view that it would not have had a highly significant effect on the outcome. True it is, it may have shown that there was something in the appellant’s claim that RS had a financial motive, but it is unlikely that alone it would have led to different verdicts. We would not be satisfied that there was any miscarriage of justice related to the discovery of this piece of evidence.

67 Complaint was also made that RS told Professor Dennerstein that when talking of the sexual activity between them, the appellant ‘had told him that she had had a similar experience when she was young and that “it’s nothing bad”’, yet there was nothing in RS’s police statement or evidence at trial about it. It seems to us that this piece of evidence had very little capacity, if at all, to affect an assessment of RS’s credit.

68 Of a different order, however, is RS’s apparent account of the tent incident to Professor Dennerstein and his evidence at trial. Remarkably, RS gave no description to Professor Dennerstein of penile-vaginal penetration having taken place. In stark contrast, however, RS told Professor Dennerstein of other incidents where he claimed that penile-vaginal penetration had occurred.

69 So significant was such penetration to the totality of the incidents in the tent, the jury may well have regarded the failure to mention it to the psychiatrist as impinging markedly on his credibility generally, and specifically on the plausibility of the evidence of the tent incident. (This is particularly so when consideration is given to the fact that RS recounted other incidents of penile-vaginal penetration when relating the events to Professor Dennerstein.) Given the time at which it was brought into existence, this evidence could not have been discovered with reasonable diligence prior to trial. Further, given its source, this evidence was credible. Most importantly, we are of the view that the jury, acting reasonably, using this evidence may well have been led to acquit the appellant.

70 Since, as we have said, verdicts of guilty were returned only with respect to the tent incident, in circumstances where the jury probably found the evidence of the two complainants to be mutually supportive, evidence which reflected adversely on RS’s credibility also must have had the capacity to have a significant impact in the jury’s assessment of the charges relating to SC. The jury, acting reasonably, may well have been moved to acquittal.

71 Our view is reinforced by Coleman v R,[23] a case which bears similarities to the present. In that case, as here, following convictions of the applicant for sexual offences, a report from a psychologist[24] was tendered as part of an application for compensation under s 85B of the Sentencing Act 1991. The account to the psychologist had the first complaint being made by the complainant to her mother over a year earlier than that alleged at trial. The Crown conceded this was fresh evidence.

72 Buchanan JA (with whom Tate JA and Sifris AJA agreed) approached the matter as follows:

[23] The question then becomes whether the evidence was sufficiently relevant and cogent in that, if considered in combination with the evidence already given at the trial, there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’ to use the words of Winneke P in R v AHK.^[25] His Honour continued:

An appellate court will always receive ‘fresh evidence’ if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.

In Craig v R Rich and Dixon JJ stated the test in these terms:

It cannot be said that a miscarriage of justice occurred unless the fresh evidence has cogency and plausibility as well as relevance. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.^[26]

The test may be expressed in terms of significant possibility or likelihood. In Mickelberg v R^[27] Toohey and Gaudron JJ said:

In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted [the accused].’^[28] Likelihood here means a substantial chance, one that is real and not remote.^[29]

[24] This Court must consider all the new evidence itself, ‘forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial ... ‘.^[30]

73 Having set out the relevant principles, Buchanan JA said:

[25] The statements made by the complainant to the psychologist are not inconsistent with the complainant’s evidence of the acts constituting the alleged offences. Rather, the statements tend to undermine the complainant’s credit in that they are inconsistent with her evidence that the sexual misconduct commenced in February 2003, that she first told another person of the applicant’s conduct in November 2003 and that in addition to the offences described in her evidence, there was sexualised touching every night and twice weekly intercourse. Counsel for the applicant contended that the fact that the new evidence could only be used to attack the complainant’s credit did not diminish its importance for the complainant’s credit was the central issue in the trial.

74 So, too, in the present case. The description of the tent incident to Professor Dennerstein significantly undermines RS’s credit, in circumstances where credit was central to the trial.[31]

75 It follows that we are of the opinion that there has been a substantial miscarriage of justice, and that Ground 2 is made out.

76 Often, success on such a ground would lead to an order for a retrial rather than a verdict of acquittal. Given our conclusions on Ground 1, strictly we need not consider this further. We record, however, that had this been the sole ground upon which the appellant succeeded, we would still have entered verdicts of acquittal.

77 There are three principal reasons. First, and most importantly, by the time the appeal had reached this Court, the appellant had completed all but about two and a half months of the non-parole period imposed upon her. Secondly, 33 years have now elapsed since the alleged offences. Thirdly, on any view, our assessment is that the evidence is weak.

78 Balancing the public interest in having a fair trial of a wrongdoer against the public inconvenience and expense, and against the oppression of placing the appellant in jeopardy again, where she has been through one trial and appeal, and has spent almost two and a half years in prison, we are of the view that the proper exercise of discretion favours verdicts of acquittal.[32]

79 We should also note that, when asked by the Court in argument whether he would press for an order for a retrial if any ground other than the ‘unsafe and unsatisfactory’ succeeded and the convictions were quashed, counsel for the respondent, Mr Silbert SC, very properly and fairly indicated that he would not.

Unsafe and unsatisfactory verdict ground

80 The first ground complains, in effect, that the verdicts returned by the jury are unsafe and unsatisfactory. Success on this ground would result in verdicts of acquittal.

81 Principles governing the resolution of a complaint that a verdict is unsafe and unsatisfactory are not in doubt. Recently, in SKA v R[33] the High Court considered the task of an appellate court when faced with a ground that a verdict is unsafe and unsatisfactory, and held that it was wrong for the appellate court to concern itself with ‘whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence’.[34] It was said:[35]

To determine satisfactorily the appellant’s appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.

And later:[36]

On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported.

82 The principles to be applied were conveniently set out by Maxwell P in R v Klamo:[37]

[38] The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:^[38]

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

[39] A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged – as distinct from entitled – the jury to come to a different conclusion. In Libke v R,^[39] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:

... But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.^[40] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.^[41]

[40] In other words, the question posed in M v R,^[42] namely:

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?

requires the court of criminal appeal to decide:

... whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’^[43] or whether, instead, the ‘path to a conviction was open’.^[44]

83 This Court is thus required to carry out its own independent assessment of the evidence to determine whether it was ‘open’ to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.[45]

84 Before turning to our conclusions on this ground, it should be acknowledged that, while he did not concede that the verdicts were unsafe and unsatisfactory, counsel for the respondent, Mr Silbert SC, did fairly acknowledge that ‘no one could say we are not troubled by this case’ and that it ‘raises alarm bells’. He did not argue the contention that the verdicts were not unsafe and unsatisfactory with vigour.

85 Having carried out our own independent assessment of the evidence we have a reasonable doubt about the guilt of the appellant on each count. Paying due regard to the notion that ‘the jury has the primary responsibility of determining guilt or innocence[46] and has had the benefit of seeing and hearing the witnesses’, we are of the opinion that the doubt we hold as to guilt is one that the jury should have experienced.

86 In summary form our reasons for concluding that the verdicts are unsafe and unsatisfactory include the following:

• In the first place, the unlikelihood of the appellant interfering with two boys of eight years of age in a tent in the backyard of her premises while her husband (and children) were nearby. This is particularly so when, on the account of the complainants, the tent incident involved masturbation, fellatio and sexual intercourse over a protracted period of time, in circumstances where, according to SC, the appellant’s husband was awake and active in the house nearby.

• Secondly, although the parties called no evidence as to this issue, the oral argument on the appeal raised the issue as to the implausibility that eight year old boys would be capable – in the way graphically described by both RS and SC in their evidence – of completing full sexual intercourse with an adult female.

• Thirdly, the evidence of both complainants suggests that they produced semen at the time of the sexual activities in the tent. This suggestion runs counter to common experience with respect to boys of this age.

• Fourthly, and, perhaps, most importantly, the evidence discloses a real likelihood that RS and SC collaborated, and a real possibility of concoction. So much flows first, from the common usage of a similar term to describe the sexual intercourse in the tent; secondly, from the fact that both made the same mistakes about surrounding circumstances (such as the name of a teacher at the primary school, who was supposed to have interrupted sexual activity in a storeroom); and, thirdly, from SC’s claim that he did not speak to RS before making his statement to police, such claim being contradicted by Detective Brown and the unequivocal terms of the statement.

• Fifthly, there is independent evidence flowing from his ex-wife that RS bore the appellant real animosity for some slight occurring in his childhood.

• Sixthly, there is evidence that RS may have had a financial motive in making a complaint (although this is not the strongest plank in the assessment of the unsatisfactory nature of the verdicts).

• Seventhly, there is the content of the Professor Dennerstein report, where RS omits any reference to penile-vaginal penetration as part of the tent incident.

• Eighthly, there are a number of inconsistencies between the accounts of the two complainants with respect to the tent incident and circumstances closely surrounding it.

• Ninthly, there is the significant forensic disadvantage flowing to the appellant from being tried three decades after the offences are said to have occurred. A material part of the forensic disadvantage is the death of the appellant’s husband.

87 We turn to discuss the evidence in more detail.

88 SC testified that he remembered ‘very clearly’ that the appellant ‘was talking a lot throughout the day about what was going to happen that night, in a sexual way, to us both’. When asked directly in evidence in chief what the appellant was saying during the day the alleged offences occurred, he said: ‘Oh, you know, just, “We’re going to, we’re going to have sex tonight, we’re going to – we’re going to have a root tonight,” that was her word, a “root”, which meant intercourse ...’. According to SC, the appellant said this several times through the day.

89 On the face of it, these would be remarkable things for an adult female to say to eight year old boys, who might be expected to have little concept of what sexual intercourse (whether described as a ‘root’ or otherwise) entailed. And it might also be thought to be strange terminology for an adult to employ when speaking to a child. Thus, by their very unusual nature, the reported statements raise a question in the mind as to the genuineness of SC’s evidence about them. RS gave no evidence of any similar statements having been made, in circumstances where SC was unequivocal in his account that the statements were made to both.

90 As to the evening, when the tent incident is said to have taken place, on SC’s version the appellant’s husband was present inside the house while his wife was engaged in what might be characterised as an orgy with two little boys. SC said that, at one point, after his penis had been inside the appellant’s vagina for ’10 minutes maybe’, he ‘got bored with it’. He claimed: ‘She said, “If you don’t do what I tell you to do, you’re going to leave the tent and [RS] and I will be alone, and you’ll have nothing more to do with it, in that same kind of tone, so I left the tent, and I went and got a drink inside, her husband was doing a carving inside, and he did it all night, and I just sort of sat there, I got a drink, and I fiddled around the house for a while. I ended up going back to the tent ...’.

91 Although the experience of the Court is that those who offend against children are often brazen and opportunistic, to accept the versions of each complainant, one would have to accept that the conduct of the appellant was exceptionally flagrant. The evidence of the complainants was that the appellant was involved in simultaneous sexual activity with them both. RS claimed that the appellant masturbated both boys at the same time. And both complainants asserted that the appellant performed fellatio on each of them, and accomplished penile-vaginal intercourse with each of them, in the presence of the other. These activities occurred in the context that, according to RS, the appellant had removed her ‘knickers’ while keeping her ‘nightie’ on; while according to SC, the appellant had removed both her knickers and her nightie. On the complainants’ versions, the appellant’s conduct was extremely risky and the chance of detection high.

92 Further, the complainants’ evidence is that they produced semen. RS claimed that after the appellant had effected penile-vaginal intercourse with him for a second time, he ‘needed to do a wee’. He claimed that he and SC went outside the tent. RS said that he said to SC that his ‘wee looked funny’, and ‘it was all gooey and wet’. According to RS, SC ‘said the same’. He said, ’Like, we stood there weeing and commenting that our wee looked funny’. RS put beyond doubt that he was suggesting that his urine contained semen when cross-examined. He said he was ‘just saying there was semen in there’.[47] By contrast, although SC said that he had a ‘wee’ outside the tent, he gave no evidence of speaking to RS about the appearance of their urine. When asked in cross-examination whether he noticed ‘anything funny’ about his wee, SC replied, ‘Not really’. He said he could not remember whether RS was there or not.

93 Another unusual aspect of the evidence of RS and SC is their use of a similar term to describe the action of penile-vaginal sexual penetration. RS gave evidence that shortly after the appellant had been masturbating him and SC, ‘she lied down, pulled her knickers off, and that was when she grabbed me and put me on top of her and used one hand, like, guide me into her’. SC said that after the appellant had removed her nightie and underpants, and put them under a pillow, ‘She then took [RS’s] pants off, she sucked on his penis and she was playing with it, and got him on top of her, and I think he guided his – her – his penis into her vagina ...’. Quite apart from describing the events differently to RS (particularly the simultaneous masturbation), the use of the similar terms guide and guided provoke inquiry as to whether there had been concoction, where in ordinary parlance it might have been expected that other terms might have been used. We note also that SC claimed to have observed the guiding action in circumstances where in other evidence he said that it was ‘dark’, and could see ‘mostly silhouettes’. Taken alone, of course, these aspects might not have been of great moment. But it is not unimportant when considered together with other factors.

94 Before we move away from the tent incident, another area in which the evidence of the two complainants varied significantly relates to what RS claimed the appellant was saying during the sexual intercourse in the tent. According to RS the appellant was saying, ‘Stick it up me’.

95 SC’s description of what happened the next day also reflects adversely on his credibility. As we have discussed, he had said that he became bored with the sexual activity in the tent and went inside. His evidence was that when he returned to the tent the appellant ‘wasn’t talking to me at all and I’d been made to feel like I’d done the wrong thing and I was in some sort of trouble’. SC then described a somewhat dramatic incident. He said that when the appellant drove him and RS home the next day (it will be remembered that RS’s mother gave evidence that she had picked RS up from the appellant’s house), ‘she dropped us off, I had a little suitcase with my clothes and slippers, and all that in it, and not a word the whole way home, and she said, ”We’re going to have coffee and tea at [RS’s] place and you’re not welcome,” and then just threw my stuff into the street and my suitcase spewed open with clothes everywhere, and drove off’.

96 Despite this, however, SC made no mention of having had his suitcase thrown into the street by his adult teacher, in an apparent fit of pique, in either of two statements that he made to police or in his evidence in committal proceedings, and mentioned it for the first time at trial.

97 There is other very important evidence which raises the spectre of collusion. The police investigator, Detective Brown, gave evidence that he commenced to investigate a complaint from RS in October 2007. In RS’s statement he nominated SC as having been present. Mr Brown said that he contacted SC by telephone in October or November 2007 and asked for a statement. SC told Mr Brown that he wanted to speak to RS before he made an appointment to make a statement. Detective Brown contacted RS on 7 November 2007 and gave him SC’s telephone number. When Mr Brown then called SC back about thirty minutes later, SC told him that he had spoken to RS and was now prepared to provide a statement. An appointment was made and a statement taken.

98 Under cross-examination, however, SC denied that he had spoken to RS before making his statement to police. This significant denial was made in the face of the contents of his signed statement, which read in part: ‘I was contacted by Detective Brown ... I asked to contact [RS] before committing to a statement because I was concerned for [RS’s] welfare. Detective Brown said he would contact [him]. A short time later [RS] rang me and we spoke about it’. When asked whether that was the truth, SC said it was not. He claimed to have had no contact with RS before making his statement. Although he had signed it with an acknowledgment that it was true and correct, SC said he had just ‘spewed out’ as much as he could. When challenged, SC said repeatedly that he did not speak to RS before making his statement to police. He could not explain how his statement came to contain the suggestion that he and RS had spoken about events before making his statement, save that Mr Brown may have ‘misinterpreted’ what he said. He was ‘baffled’ by the statement’s contents, and said that he still had not spoken to RS ‘to this day’. Further, when RS was cross-examined on the topic he said that SC ‘has never called me’.

99 In light of Detective Brown’s evidence of putting RS and SC in touch one with the other, his evidence of his conversation with SC on 7 November 2007 and the contents of SC’s statement, it would be capricious not to accept that RS and SC had spoken prior to SC giving his version of events to police. The fact of them speaking raises the possibility of their versions being contaminated. Of greater significance, however, is the denial of having spoken in the face of compelling evidence to the contrary. The attempt to conceal the fact of contact speaks eloquently of the risk of collusion. It cannot be gainsaid that it reflects poorly on each complainant’s credibility. The jury should have regarded it with concern.

100 Whilst on this topic, it is interesting to note that both complainants made the same mistake in their evidence as to the name of a teacher who was said to have interrupted one of the sexual encounters in the storeroom (which did not result in conviction). Both RS and SC said this teacher was ‘Mrs Bailey’. The evidence was that there was no teacher of that name at the school, but there was a ‘Mrs Baloh’ (phonetically, ‘Barlow’). The only possibilities are that both complainants made the same mistake coincidentally, or their evidence was innocently contaminated, or they colluded. It is a matter that heightens concern about their evidence. Further, we note for the sake of completeness, that Mrs Cheryl Baloh gave evidence that she was on maternity leave from the school for all except the last six weeks of 1979. She could not remember walking into a storeroom and noticing anything suspicious. Had she done so, she would have reported it.

101 Added to these factors is the evidence that RS bore the appellant real animosity for some perceived slight in childhood. RS’s ex-wife’s evidence was that RS had complained to her that his teacher ‘had done the wrong thing by him and ... had tried to frame him with theft of money’. He told her, ‘things like, “Maybe I should track this teacher down, take her to court, sue her”’.

102 At this point we should refer to the fact that a financial motive was also alleged against RS. He agreed that he had heard that the appellant’s husband had been killed in a train accident, but denied that he knew that the appellant would receive a large compensation payout as a result. There was also evidence which suggested that RS had sought advice from a lawyer specialising in compensation for victims of sexual assault before going to police. Finally, there was evidence that, despite denying that he was interested in compensation, he in fact made an application for compensation after the jury’s verdicts. We do not think, however, that the asserted financial motive – although relevant – bears much on the resolution of whether the verdicts are unsafe and unsatisfactory.

103 We have already discussed in some detail the failure of RS to mention to Professor Dennerstein penile-vaginal penetration having occurred as part of the sexual activity making up the tent incident. Although, of course, the jury did not have the benefit of this evidence, it is another factor in a constellation of factors which leads to the view that the impugned verdicts are unsafe and unsatisfactory.

104 Some of the inconsistencies between the accounts of RS and SC with respect to the tent incident have already been canvassed (for example, their differing accounts of the type and sequence of sexual activity; SC’s evidence, not supported by RS, that the appellant used sexualised language to them during the day; SC’s evidence that he went inside and watched the appellant’s husband carve a statue of a naked woman, whereas according to RS, SC remained in the tent throughout, and so on). But there were also significant inconsistencies between them with respect to surrounding detail. Thus, RS gave evidence that SC left school shortly after the events in Grade 3, and the two of them never spoke again. SC’s evidence was that he completed Grade 6 at the school. They both gave different accounts of whether they had been allowed to ride the appellant’s husband’s motorbike, SC saying that they had both been taken for a ride on it, and RS asserting that they were too young to ‘dink’.

105 Although some of the inconsistencies might be excused based on the effects on memory of the effluxion of time, cumulatively they raise substantial concern as to the reliability of the complainants’ evidence. Indeed, it might be thought that – apart from supporting in a very general sense the notion that something of a sexual nature happened in the tent – the complainants’ accounts vary in such significant respects that, in reality, their accounts do not support each other.

106 Finally, although we are of the view that the appellant did not make out proposed Ground 3 that does not mean that any forensic disadvantage flowing to the appellant is to be ignored in determining whether the verdicts of guilty are unsafe and unsatisfactory. Rather, we think that the appellant has suffered significant forensic disadvantage which underscores the unsafe and unsatisfactory nature of the convictions.

107 There are a number of ways in which the appellant has been disadvantaged. Almost three decades having elapsed since the tent incident, the appellant was unable to investigate, or produce evidence with respect to, various surrounding circumstances. She was unable to produce contemporaneous medical evidence specific to the complainants as to their capacity as eight year olds to engage in penile-vaginal sexual intercourse with an adult woman or produce semen. And perhaps most importantly, as a result of his death, the appellant had been robbed of the opportunity of calling evidence form her husband which, it cannot be doubted, would have been highly relevant to the events surrounding the crucial tent incident.

108 Finally, the appellant took part in a record of interview with police in which she made clear denials of any impropriety. She is entitled to have her good character taken into account in the assessment of those denials.[48] This is not a case where her failure to give evidence impinges on the assessment of whether the verdicts are unsafe and unsatisfactory.[49]

109 As a result of the concatenation of factors that we have identified, we enjoy a reasonable doubt as to the appellant’s guilt on each count on which she was convicted. It is a reasonable doubt that the jury should have had.[50] Hence, in our opinion, it was not open to the jury to have found the appellant guilty on any count.

110 The verdicts of guilty are unsafe and unsatisfactory. They cannot be permitted to stand.

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^[1] Section 277(1)(b) of the Criminal Procedure Act 2009.

^[2] Crimes Act 1958, s 61(1)(b)(i).

^[3] Emphasis added.

^[4] Emphasis added.

^[5] Emphasis added.

^[6] The word ‘otherwise’ is found in s 61(1F) but not s 165B(5). Its omission from s 165B(5) does not appear to be significant.

^[7] There is a difference between a comment and a warning: Longman v R [1989] HCA 60; (1989) 168 CLR 79, 90–1 (Brennan, Dawson and Toohey JJ); R v Miletic [1997] 1 VR 593, 605; R v J (No 2) [1998] 3 VR 602, 632–3; R v Robertson [1998] 4 VR 30, 35.

^[8] Generally, a trial judge is required to give a jury any warning ‘whenever a warning is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case’: Longman v R [1989] HCA 60; (1989) 168 CLR 79, 86; R v Miletic [1997] 1 VR 593, 602–3.

^[9] Longman v R [1989] HCA 60; (1989) 168 CLR 79.

^[10] Sexual Offences Law and Procedure: Final Report, Victorian law Reform Commission, July 2004, [7.132], footnotes omitted.

^[11] Victoria, Parliamentary Debates, Legislative Assembly, 10 August 2006, pp 2793-4. (Rob Hulls, Attorney-General).

^[12] See Odgers S, Uniform Evidence Law in Victoria, [1.4.3180].

^[13] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson and Toohey JJ). See also Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 324-5; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330 (Brennan J), 339 (Deane J).

^[14] Spigelman J, The Truth Can Cost Too Much: The Principle of a Fair Trial, (2004) 78 ALJ 29, 41.

^[15] (1994) 54 FCR 513, 526. See also Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437.

^[16] [1990] HCA 28; (1990) 169 CLR 625, 635–6 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

^[17] Section 165B appeared in the Evidence Act 2008 as first enacted, with operation from 1 January 2010. With only minor variation, it reflects s 165B of the Evidence Act 1995 (Cth). (Subsections (2), (4) and (5) of the Victorian Act were subject to immaterial amendment by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, which substituted ‘accused’ for ‘defendant’ wherever occurring.) Subsections (1A) to (1F) of s 61 of the Crimes Act 1958 were inserted by the Crimes (Sexual Offences) (Further Amendment) Act 2006, with operation from 1 December 2006.

^[18] Pearce DC, and Geddes RS, Statutory Interpretation in Australia, (6^th ed), [7.9] et seq.

^[19] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, 80 ALJR 614; Patel v The Queen [2012] HCA 29; (2012) 290 ALR 189, 86 ALJR 954. See also R v Arundell [1998] VSCA 102; [1999] 2 VR 228, 249-50, [53]–[55]; R v Mateiasevici [1999] VSCA 120; [1999] 3 VR 185, 196 [37]; MB v R [2012] VSCA 248, [45].

^[20] R v Wright [1999] VSCA 145; [1999] 3 VR 355.

^[21] [1998] 4 VR 394, 400–1. See also R v AHK [2001] VSCA 220, [8]; R v Miechel (2010) 207 A Crim R 334, [2010] VSCA 225, [53]; Coleman v R [2011] VSCA 301, [23]–[24].

^[22] (1985) 38 SASR 432, 435. See also R v AHK [2001] VSCA 220, [8].

^[23] [2011] VSCA 301. See also R v Kucma (2005) 11 VR 472, [2005] VSCA 58, [25] (Batt JA); [34][39], [52] (Eames JA).

^[24] Professor Dennerstein is a psychiatrist, but nothing turns on that distinction.

25. ^[25] R v AHK [2001] VSCA 220, [8] (Winneke P). See also Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason and Deane JJ); R v DD [2005] VSCA 308; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ).

^[26] [1933] HCA 41; (1933) 49 CLR 429, 439.

^[27] [1989] HCA 35; (1989) 167 CLR 259.

^[28] Above 301.

29. ^[29] Boughey v R [1986] HCA 29; (1986) 161 CLR 10, 21 (Mason, Wilson and Deane JJ). See R v Nguyen and Tran [1998] 4 VR 394, 401 (Kenny JA).

^[30] Ratten v R [1974] HCA 35; (1974) 131 CLR 510, 518 (Barwick CJ).

^[31] See also R v Lewis-Hamilton [1998] 1 VR 630.

^[32] Rabey v The Queen [1980] WAR 84, 95–96. See also Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630; R v Talia, Centra & Maglitto [1996] VicRp 33; [1996] 1 VR 462, 477; R v Bartlett [1996] VICSC 47; [1996] 2 VR 687, 698; Dyers v The Queen (2002) 210 CLR 285, 314-5 [82]–[83].

^[33] [2011] HCA 13; (2011) 243 CLR 400; 276 ALR 423. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492, 493; AE v R [2011] VSCA 168, [39].

^[34] [2011] HCA 13; (2011) 243 CLR 400, 408 [20].

^[35] Ibid [21].

^[36] Ibid [22].

^[37] [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]–[40].

^[38] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316, [41] (The Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

^[39] [2007] HCA 30; (2007) 230 CLR 559, 596–7, [113].

^[40] Citing M v The Queen, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ).

^[41] See also R v Tiburcy, [17] (Vincent JA).

^[42] At 493 (Mason CJ, Deane, Dawson and Toohey JJ).

^[43] R v Shah [2007] SASC 68, [4] (Doyle CJ).

^[44] Morabito v R [2007] NSWCCA 126, [34] (Mason P).

^[45] R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-5 [38]–[43]; ADG v R [2011] VSCA 430, [38]–[39].

^[46] For our part, we would prefer the use of the expression non guilt rather than innocence. Although a verdict of not guilty may be returned because a jury positively is of the view that an accused person is innocent, it is, of course, not necessarily so. More usually, it might be expected a verdict of not guilty is simply a reflection of a reasonable doubt held concerning guilt.

^[47] The Court confirmed during the hearing of the appeal that the respondent did not contest the accuracy of this portion of the transcript.

^[48] R v Aziz [1996] AC 41, 52.

^[49] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 228; R v Emmerson (Unreported, 12 September 1997, Vic CA), 1–2 (Hayne JA); Azzopardi v The Queen (2001) 205 CLR 50, 64 [34], 73 [62] (Gaudron, Gummow, Kirby and Hayne JJ).

^[50] We think that is so even without the jury having the benefit of the fresh evidence in Professor Dennerstein’s report.