Summary of Judgment

Summary of Judgment

ALBERT MEJIA (a pseudonym)[1]vTHE QUEEN

[2016] VSCA 296

28 NOVEMBER 2016

The Court of Appeal today by a majority (Kyrou and Kaye JJA, MaxwellP dissenting) upheld an appeal against conviction in respect of a number of sexual offences alleged to have been committed by the applicant against his sister between 1994 and 2000 when she was 11 – 18 years old and he was 16 – 23 years old.

The majority concluded that the verdicts were unreasonable and could not be supported by the evidence because the jury, acting reasonably, must have had a reasonable doubt about the truthfulness and reliability of the complainant’s evidence in relation to the offences in respect of which the applicant was convicted.The majority reached this conclusion based on the combined effect of the following:

A number of issues were raised relating to the truthfulness and reliability of the complainant’s evidence about the alleged offending, particularly in relation to three of the charges in which she acknowledged that she accepted the applicant’s invitation to enter his residence when that was the last place that she would have wanted to go to.
While two school friends gave evidence which supported her evidence that she had separately complained to them that her brother had sexually abused her, a third school friend whom the complainant said was present on the occasion of the first complaint denied that there had been any complaint.The complainant altered her own evidence about the first complaint in order to accommodate that denial.There were also significant discrepancies between the complainant’s evidence and the evidence of the two school friends about what the complainant said to them.
There was significant conflict between the evidence of the complainant and the evidence of her former boyfriend as to an incident that took place when they were both 15 years old.The boyfriend stated that they had sex, that his condom broke and that the complainant toldhim that she was concerned that she might be pregnant.The complainant initially told the police that she did not have sex with her boyfriend but in evidence she stated that they intended to have sex but did not do so because the boyfriend was not able to achieve an erection.The applicant’s evidence about this incident seriously undermined her credibility as a witness of truth because it was not open to the jury to reject the boyfriend’s evidence which was not challenged by the prosecution.Further, the complainant proffered three conflicting versions of the incident and she sought to induce the boyfriend to adopt one version that, on her own account, was false.
The complainant gave evidence that the only time that a condom broke during sex was when the applicant had sex with her when she was 15 years old and they were both concerned that she might be pregnant.She said that the applicant told her to say to their parentsthat she was concerned that she was pregnant as a result of having sex with her boyfriend during which his condom broke.It was not credible that the applicant happened to invent a ‘cover story’ about the complainant having sex with the boyfriend that, by an extraordinary coincidence, was true.Further, as the complainant accepted, it was most unlikely that the complainant would have told the applicant about her encounter with the boyfriend if in fact the applicant was then regularly sexually assaulting her.Yet there was independent evidence that the applicant knew of that encounter, in circumstances in which he must have learnt of it from the complainant.
The circumstances in which the complainant contacted one of her school friends and sought to persuade her to give evidence and also contacted her boyfriend and sought to persuade him to alter his evidence, reflected adversely on her credibility.
The approaches made by the complainant (and her husband) to the police, and some of the allegations made by them to the police, including a false allegation that the applicant had indecently assaulted many of her friends over a protracted period, reflected a determination by her that the applicant be prosecuted and convicted ‘come what may’.
There were material unresolved inconsistences between the evidence of the complainant and the evidence of all other witnesses who gave oral evidence or whose statement was read to the jury.
The fact that the complaint complained to the police about the applicant’s alleged sexual abuse after he had rejected a proposed settlement of their dispute over their mother’s will, and the circumstances in which that dispute had proceeded in the Supreme Court, raised a real issue about the motive and approach of the complainant in pursuing the criminal charges against the applicant.

Maxwell P, in dissent, concluded that none of the matters relied on by the applicant precluded the jury from being satisfied of his guilt beyond reasonable doubt.The jury were capable of judging for themselves whether the complainant was a credible witness.His Honour said:

The jury deliberated for almost two days.After a day’s deliberation, they asked the judge a very precise question, about the applicant’s record of interview, which revealed just how carefully they were reviewing the evidence, charge by charge.After that long and careful deliberation, the jury came unanimously to the conclusion that she was, beyond reasonable doubt, a witness of truth.

In those circumstances, in my view, this Court should be very slow to conclude that the jury’s verdict was not reasonably open.[2]

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NOTE:This summary is necessarily incomplete.It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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

[2]Mejia (a pseudonym) v The Queen [2016] VSCA 296 [6]–[7].