Benton (a pseudonym) v The King

[2024] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0082

WARD BENTON (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

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

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JUDGES:	PRIEST, McLEISH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2024
DATE OF JUDGMENT:	21 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 182
JUDGMENT APPEALED FROM:	DPP v Benton (a pseudonym) (Unreported, County Court of Victoria, Judge Syme, 9 September 2022).

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CRIMINAL LAW – Appeal – Conviction – Sexual offending against child – Whether substantial miscarriage of justice because of alleged errors of trial counsel – Whether judge impermissibly conflated tendency evidence and context evidence in charge – Whether jury verdicts unreasonable and unsupported by evidence – Leave to appeal refused.

Evidence Act 2008, ss 97, 101; Criminal Procedure Act 2009, ss 342, 349.

R v Bauer (a pseudonym) (2018) 266 CLR 56; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; Packard (a pseudonym) v The Queen (2018) 271 A Crim R 353; Hickman (a pseudonym) v The Queen [2022] VSCA 75; Pell v The Queen (2020) 268 CLR 123, discussed; Baker (a pseudonym) v The King [2024] VSCA 87; TKWJ v The Queen (2002) 212 CLR 124; Allen (a pseudonym) v The Queen [2016] VSCA 59; M v The Queen (1994) 181 CLR 487; Churchill (a pseudonym) v The King [2024] VSCA 151, applied; IMM v The Queen (2016) 257 CLR 300, distinguished.

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Counsel
Applicant:		Mr AL Hands
Respondent:		Mr RL Gibson KC
Solicitors
Applicant:	McNally & Gleeson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

1. I agree with Walker JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

MCLEISH JA:

1. I agree with Walker JA.

WALKER JA:

1. In September 2022 the applicant was convicted by a jury of eight offences involving his step-daughter (to whom I shall refer as ‘NV’). Those offences were:

   (a)three counts of committing an indecent act with or in the presence of a child under 16, contrary to s 47 of the Crimes Act 1958;[2]

   (b)two counts of incest, contrary to s 44(2) of the Crimes Act;[3]

   (c)three counts of sexual penetration of a child under the age of 16, contrary to s 45 of the Crimes Act.[4]

   [2]As in operation at the time of the alleged offending.

   [3]As in operation at the time of the alleged offending.

   [4]As in operation at the time of the alleged offending.

2. He was sentenced to 15 years and 6 months’ imprisonment, with a non-parole period of 9 years and 3 months.[5]

[5]R v Benton (a pseudonym) (Unreported, County Court of Victoria, Judge Syme, 4 April 2023).

1. The applicant now seeks leave to appeal against his conviction.[6] His proposed grounds of appeal[7] are as follows:

   (a)Ground 1: a substantial miscarriage of justice has occurred because of a number of errors made by defence counsel at the special hearing and the trial, which denied the applicant the chance of an acquittal.

   (b)Ground 2: a substantial miscarriage of justice has occurred in circumstances where the learned trial judge in charging the jury conflated the tendency and context evidence and suggested that the context evidence could be used as evidence of tendency.

   (c)Ground 3: a substantial miscarriage of justice has occurred because the jury verdicts were unreasonable and could not be supported by the evidence.

   [6]An extension of time for the filing of the application for leave to appeal was granted on 28 August 2023.

   [7]For convenience, I will refer to the proposed grounds of appeal as grounds of appeal.

2. For the reasons that follow, I would refuse leave to appeal.

   PART A:BACKGROUND

3. The applicant was in a de facto relationship with NV’s mother from 2009 until around 2015. He continued to cohabit with NV and her mother until 2018. NV regarded the applicant as a step-father.

4. NV first made a statement to police in the form of a VARE[8] on 11 September 2018 (the ‘first VARE’). In that VARE she described the applicant’s sexual offending against her over a nine-year period, between 2009, when the applicant came to live with NV and her mother, and 2018. NV was aged between seven and 15 years old over this period.[9] NV made a further statement to police in a VARE on 1 August 2019 (the ‘second VARE’), where she was asked by the police officer to clarify some things that she had said in the first VARE.

   [8]Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, s 367.

   [9]NV was born in October 2002.

5. The conduct alleged in relation to the charges was, in summary, as follows:

   (a)Charge 1 (indecent act with a child under 16): On one occasion, when NV was around seven years old, the applicant and complainant were home alone together and both lying on NV’s mother’s bed. The applicant rubbed NV’s body with his hands over her clothing and rubbed her vagina or crotch area outside her clothing.

   (b)Charge 2 (indecent act with a child under 16): On another occasion, when NV was around seven years old, and again whilst home alone with NV, the applicant grabbed her and sat her on top of his body. He then rubbed his erect penis over her body and vagina area on the outside of her clothing.

   (c)Charge 3 (incest): Again when NV was around seven years old, when her mother was not home, the applicant asked NV to select a pornographic DVD and then he played the video depicting adults engaging in sexual intercourse. The applicant then suggested that he and NV copy the actors. NV was on top of the applicant. The applicant inserted his penis into her vagina, causing her extreme pain. This continued for approximately five to 10 minutes.

   (d)Charge 4 (indecent act with a child under 16): On another occasion, also when NV was about seven, she and the applicant were both naked in the bath. The applicant placed a small plastic bucket over his penis, removed it and exposed his erect penis. He subsequently rubbed it on the outside of her vagina.

   (e)Charge 5 (incest): When NV was about nine or 10, she and the applicant were in the garden shed. The applicant laid out a swag on the shed floor. He laid NV down on top of the swag on her back, removed her clothing, lay on top of her and inserted his penis into her vagina. He penetrated her vagina for approximately 15 minutes.

   (f)Charge 6 (sexual penetration of a child under 16): In 2015, when NV was about 12 or 13, the applicant took NV to a beach on a fishing trip whereby NV was in the applicant’s sole care and authority. The applicant told NV to enter a small hut made of sticks. Once inside, the applicant lay on the ground, pulled his pants and her pants down, and positioned NV on top of him. He inserted his penis into her vagina and penetrated her vagina for approximately five to 10 minutes.

   (g)Charge 7 (sexual penetration of a child under 16): In April 2016, when NV was 13 or 14, while NV’s mother was overseas for a few weeks, NV asked the applicant if she could borrow his iPhone 6 and take it to school. The applicant said that if NV performed oral sex on him, he would let her use the phone for the day. NV put the applicant’s penis into her mouth and performed oral sex on him for a number of minutes until he ejaculated into her mouth.

   (h)Charge 8 (sexual penetration of a child under 16): In May 2018, when NV was 15, she asked the applicant to buy her some vodka ‘Cruisers’ so that she could take them to a party the following evening. The applicant wanted something in return for doing so. He was in his bedroom, and the applicant lay down on his bed. He removed her pants, rubbed the outside of her vagina, and then inserted his finger into her vagina. He then rolled her onto her back and got on top of her, inserted his penis into her vagina and penetrated her for approximately one minute. She was crying and then ran to her room as she continued crying.

6. In the first VARE, NV also spoke about various other, uncharged acts involving the applicant engaging in sexual intercourse and other sexual behaviour with her. One of those uncharged acts involved sleeping in a swag with the applicant while staying at the applicant’s brother’s property.

7. A special hearing occurred on 29 January 2021, at which counsel for the applicant cross-examined NV.

8. At trial, the Crown relied on NV’s evidence about both charged and uncharged acts as tendency evidence, pursuant to a tendency notice. The defence did not challenge the tendency notice or object to the admission of NV’s evidence as tendency evidence.

9. The Crown also called various other witnesses, who principally gave evidence about NV’s telling them about the applicant’s sexual abuse of her. Four of those witnesses were minors, and thus VAREs were conducted with them:

   (a)LZ, who was 16 at the time that the VARE was conducted;

   (b)PT, who was 16 at the time that the VARE was conducted;

   (c)CN, who was 15 at the time that the VARE was conducted; and

   (d)PL, who was 16 at the time that the VARE was conducted.

10. PL had been NV’s boyfriend for a period of time that overlapped with the alleged offending. In her VARE, NV had said that she considered that, by engaging in sexual intercourse with the applicant in exchange for the vodka Cruisers, she had ‘cheated on’ her boyfriend, PL.

11. In his VARE, PL also said that on an occasion after NV had made her complaint to police, he and NV were camping out and they were going to use a swag. NV told him that she had been raped in the swag, and when he opened it he saw ‘cum stains and hairs’ on the mattress and sheet.

12. The prosecution also called:

    (a)The informant, SN, through whom the prosecution led evidence of notes made by a school welfare officer in 2016 about NV’s friends telling the officer that NV had said that the applicant had raped her;

    (b)NV’s mother, TD, who gave evidence about NV telling her about the applicant’s sexual abuse;

    (c)NV’s grandmother, QD, who gave evidence that NV was reluctant to stay at home without her mother present, and that NV said she did not want to stay home with the applicant;

    (d)CB, who was the mother of NV’s former boyfriend, AB, who gave evidence that NV had told her that she was frightened to be at home alone with the applicant and that the applicant came into her room at night.

13. The applicant did not give evidence at the trial. The defence called the applicant’s brother, CS. CS gave evidence that he had called the applicant’s phone on the day that NV took the applicant’s phone to school and that NV had answered the phone. He said that NV had told him that she was at school, that she mumbled something, and that she did not give any reason as to why she had the phone. He also gave evidence that NV and the applicant had stayed at his property three or four times, with the applicant’s biological children, L and M. He said that ‘most of the time’ NV would sleep on the couch inside, with L, and the applicant would stay outside in a swag or inside a shed. Later in his evidence he said that NV would sleep inside ‘all the time’.

14. The defence also called the applicant’s father, AS. He gave evidence about the applicant’s state after he had had a serious motorcycle accident, during which the applicant was wearing a ‘halo’ (a form of neck brace). He also gave evidence that he had never seen anything sexual between the applicant and NV, and gave evidence of the applicant’s good character, including that the applicant had never been charged with or convicted of any crime.

15. Finally, the defence called HL as a character witness.

    PART B:GROUND 1: ERRORS SAID TO BE MADE BY DEFENCE COUNSEL

16. Ground 1 was that a substantial miscarriage of justice occurred as a consequence of various errors made by defence counsel at the special hearing and the trial, which the applicant submitted denied him the chance of an acquittal.[10] The errors said to have occurred were as follows:

    (a)failure to seek leave to cross-examine NV about her sexual relationship with several boyfriends;

    (b)failure to put to NV that she slept in the lounge room when visiting the applicant’s brother, CS;

    (c)failure to challenge the tendency evidence;

    (d)failure to challenge the admissibility of the observations of PL concerning the swag; and

    (e)failing to object to the prosecutor’s approach in relation to the character witnesses, namely suggesting that ‘none of the character witnesses had seen anything’.

    [10]The Court invited the two counsel involved in the special hearing and the trial to file affidavits or submissions with respect to the matters raised about their conduct, but they chose not to file any material.

17. I will address each of these matters in turn.

18. I note at the outset that a ground of appeal that relies upon what are said to be ‘errors’ by trial counsel is a difficult ground to make good. That is because counsel are called upon to make a range of forensic decisions in the course of a criminal trial. Many of those decisions involve matters about which reasonable minds might differ. Trial counsel exercise a wide discretion in deciding what issues to contest, and the manner in which they are to be contested. Generally, counsel’s decisions will be determinative of whether there has been a substantial miscarriage of justice, because generally the parties to criminal litigation are bound by the conduct of their counsel. Thus an applicant ‘will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability’.[11] As Gleeson CJ observed in TKWJ v The Queen:

    For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.[12]

    [11]Allen (a pseudonym) v The Queen [2016] VSCA 59, [77] (Maxwell P, Redlich and Priest JJA). See also Packard (a pseudonym) v The Queen (2018) 271 A Crim R 353, 389 [117] (Priest JA); [2018] VSCA 45 (‘Packard’): Priest JA was in dissent, but not on this expression of principle.

    [12]TKWJ v The Queen (2002) 212 CLR 124, 130–1 [16]; [2002] HCA 46 (‘TKWJ’).

19. Ultimately, in the case of an appeal concerning alleged errors made by trial counsel, two questions arise. The first question is whether the particular decision in question could be characterised as a rational forensic decision made by counsel. If the answer is ‘no’, the second question is whether the particular decision has resulted in a substantial miscarriage of justice to the accused person.[13]

    (1)Failure to cross-examine NV about her prior sexual relationships

    [13]Baker (a pseudonym) v The King [2024] VSCA 87, [78] (McLeish, Niall and Kaye JJA). See also TKWJ (2002) 212 CLR 124, 130–1 [15]–[17] (Gleeson CJ), 134–5 [32]–[33] (Gaudron J), 159 [95] (McHugh J), 158 [107]–[108] (Hayne J); [2002] HCA 46.

20. The first alleged error by trial counsel upon which the applicant relied was counsel’s failure to seek leave to cross-examine NV about her previous sexual relationships with her boyfriends (one of whom was PL). The applicant contended that NV’s evidence was that she was in a sexual relationship with PL. He submitted that cross-examination on this topic may have provided an exculpatory explanation of why he had wanted to ensure that NV was taking an oral contraceptive. That is a reference to NV’s mother’s evidence that the applicant had suggested to her that NV ‘go on the pill’ (which occurred when NV was 13 or 14). NV’s mother’s evidence was that in that conversation the applicant had said NV should go on the pill ‘because it would help with acne, and in case she sleeps with somebody that we didn’t want her pregnant at a young age’. The Crown sought to have the jury draw the inference that the applicant wanted NV to go on the pill because he was having sexual intercourse with her and did not want her to become pregnant.

21. There are important limitations on the introduction of evidence about a complainant’s sexual history in the Criminal Procedure Act 2009. In particular, s 342 prohibits cross‑examination and evidence about the sexual activities of the complainant (other than those to which the charge relates) without leave of the court.

22. Section 349 provides that leave to elicit such evidence can only be given if the evidence has ‘substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or admit the evidence’. In reaching a conclusion about those matters, the court must have regard to the following factors:

    (a)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross‑examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and

    (b)the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and

    (c)the need to respect the complainant’s personal dignity and privacy; and

    (d)the right of the accused to fully answer and defend the charge.

23. In the present case, I consider that there was no prospect that leave would have been given to cross-examine NV about her prior sexual activities, whether with PL or with any other person. There are several reasons for that conclusion.

    (a)First, contrary to the applicant’s submission, NV did not give evidence that she was in a sexual relationship with PL. Her evidence was that, on the occasion concerning the vodka Cruisers, she had felt as if she was ‘cheating on her boyfriend’. That does not amount to evidence that she was in a sexual relationship with PL. And in relation to NV’s other boyfriends, there was no evidence to suggest any kind of sexual relationship.

    (b)Secondly, NV’s relationship with PL commenced in 2018, when she was aged 15. This was a year or two after the conversation between the applicant and NV’s mother. Thus any sexual activity she had with PL could not have provided a basis for the applicant seeking to put her on the pill when she was 13 or 14.

    (c)Thirdly, even assuming that NV was in a sexual relationship with one or more of her boyfriends, this would not have provided an exculpatory reason for the applicant to seek to put her on the pill unless he knew about that sexual activity. There was no evidence to suggest that he did know; rather, NV’s mother’s evidence was that the applicant simply referred to the possibility that NV might have sex in the future.

    (d)Fourthly, the defence already had two reasons it could rely upon in relation to the applicant’s desire to put NV on the pill: her acne and the possibility of sexual activity in the future. NV’s mother had agreed in her evidence that these were valid reasons for NV to take the contraceptive pill. She had also given evidence that NV had suffered from irregular periods and period pain, and that going on the pill might assist with those issues. NV’s mother took her to a doctor and the doctor prescribed the contraceptive pill for NV.

1. In light of these matters it cannot be said that evidence about NV’s sexual activities with PL or others would have had ‘substantial relevance to a fact in issue’. Nor would it have been in the interests of justice to allow such cross-examination.

2. Defence counsel’s decision not to seek leave to adduce such evidence was thus a rational forensic decision, not an error. It did not lead to a miscarriage of justice.

   (2)Failure to put to NV that she slept in the lounge room when visiting CS

3. As noted above, NV had given evidence about an uncharged act that occurred when she and the applicant were staying at the applicant’s brother’s property. That act was said to have occurred in the applicant’s swag. The applicant’s brother, CS, gave evidence that when the applicant and NV visited him, ‘most of the time’ NV slept inside the house with the applicant’s biological children. He later said that this occurred ‘all the time’. The proposition that NV slept inside the house was not put to NV at the special hearing, a matter of which the jury was informed at the conclusion of defence counsel’s address. The failure to put that proposition to NV was the second error said to have been committed by defence counsel.

4. I do not consider that this was an error by defence counsel. This matter was raised in the course of the trial. Counsel explained that she had not put this matter to NV because she did not know that the applicant’s brother would give that evidence. That provides a clear explanation for counsel not questioning NV about this issue. It was not practical, at that point in the trial, for NV to be recalled to give further evidence, and the applicant did not make any submission on the appeal that defence counsel ought to have taken that step. Counsel was given the opportunity to re-address the jury on the issue, an opportunity she accepted. Counsel then simply told the jury she had not put the matter to the complainant. There is no reason to think that the jury would not have accepted what counsel said.

5. It is difficult to see what prejudice to the applicant could have resulted from the failure to put the sleeping arrangements to NV. In the absence of NV being asked whether she always slept inside the house on those visits, the jury had CS’s evidence on that issue, without any express contradiction by NV. That might have advanced, rather than hindered, the applicant’s case. On the other hand, had the question been asked, NV would either have denied that she slept inside the house ‘all the time’ or accepted that she slept inside the house ‘all the time’. If the former, then the jury would have been left with a possible conflict between CS’s evidence and NV’s evidence (noting that CS initially said NV ‘mostly’ slept inside the house, so the conflict only went so far). That would arguably have left the applicant in a worse position because, as matters stood, CS’s evidence on that issue was uncontradicted.

6. In contrast, if NV had accepted that she ‘always’ slept inside the house, that proposition is not inconsistent with her having spent time in the swag with the applicant. In that regard, CS accepted in his evidence that he did not remain awake all night on the occasions when NV and the applicant visited. Thus he could not have known whether NV remained in the house for the entire night.

7. Given that defence counsel was not aware of the evidence CS’s brother would give at the time of NV’s cross-examination at the special hearing, the only decision in issue, once that evidence had been given, was the decision not to seek leave to adduce further evidence from NV, which would have involved an interruption to the trial. In light of the fact that CS’s evidence was, on this question, uncontradicted, that decision was a rational forensic decision that was open to counsel. It did not lead to a miscarriage of justice.

   (3)Failure to challenge the tendency evidence

   (a)The tendency notice

8. The prosecution served a tendency notice on the applicant prior to trial, as required by s 97(1)(a) of the Evidence Act 2008. The notice set out the tendencies the prosecution sought to rely upon as follows:

   2.       The Prosecution seeks to rely upon the tendency of the Accused to:

   2.1 Act in a particular way, namely to act upon his sexual interest in the complainant by committing sexual acts upon her:

   (a) Taking advantage of his access to her and position of trust, power and authority over her by sexually offending against her while she was alone in his care;

   (b) Exploiting his position of trust, power and authority over her by creating opportunities to be alone with her in order to commit sexual acts upon her;

   (c) Offering inducements to ensure her compliance with or submission to the sexual acts he committed upon her;

   (d) Committing sexual acts upon her while another adult was in the vicinity.

   2.2 Have a particular state of mind, namely to have an inappropriate sexual interest in the complainant when she was aged between seven and sixteen, and a preparedness to act upon it.

9. The evidence said to support the tendencies alleged was set out in Table A of the notice. It included both charged and uncharged sexual acts, including the alleged conduct in the swag at CS’s property. It also included the applicant’s desire that NV obtain a prescription for oral contraception.

10. The notice stated that the issue in the case to which tendency reasoning applies was ‘whether the acts constituting the charges on the indictment occurred as alleged’.

11. The notice specified in more detail the relationship between the tendencies alleged and the particular charges, as follows:

    6. The tendency set out at paragraph 2 is relied upon in support of the following charges as making more likely the facts founding those charges.

    6.1 Taking advantage of his access to her and position of trust, power and authority over her to sexually offend against her while she was alone in his care (Charges 1–3, 6, 7)

    6.2 Exploiting his position of trust, power and authority by creating opportunities to be alone with her (Charges 4–6)

    6.3 Offering inducements to ensure compliance or submission (Charges 7 and 8);

    6.4 Committing sexual acts upon her while another adult was in the vicinity (Charges 3, 5 and 8);

    6.5 Acting on his sexual interest by committing sexual acts upon her (all charges).

    (b)The applicant’s arguments on counsel’s approach to the tendency evidence

12. Under cover of ground 1, the applicant contended that defence counsel at trial should have challenged ‘the admissibility of the Tendency Notice’ (I interpolate that in fact it would be the admissibility of the tendency evidence that would properly be the subject of an objection to admissibility). He submitted that the tendency evidence lacked the requisite significant probative value for four reasons:

    (i) The only source of the charged and the uncharged acts which constituted the tendency evidence was the complainant;

    (ii) The complainant’s evidence of the applicant’s tendency was unsupported by any other evidence;

    (iii) None of the charged or uncharged acts bore any special feature;

    (iv) The tendency evidence itself [was] very general, vague and riddled with inconsistencies.

    (c)Consideration

13. Evidence that an accused person had a tendency to act in a particular way, or had a particular state of mind, may be relevant and admissible under s 97 of the Evidence Act for the purpose of proving that, in a particular case, the accused acted in that way or had that state of mind as alleged in the proceeding.[14] In Elomar v The Queen, the New South Wales Court of Criminal Appeal described that process of reasoning in the following terms:

    Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. ... Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion ... .[15]

    [14]Gardiner v The Queen(2006) 162 A Crim R 233, 260 [124]; [2006] NSWCCA 190 (Simpson J).

    [15]Elomar v The Queen (2014) 300 FLR 323, 398 [359]–[360] (Bathurst CJ, Hoeben CJ at CL, Simpson J); [2014] NSWCCA 303.

14. In a case in which the offending is alleged to have been committed against a single complainant, evidence of other sexual offences perpetrated by the accused against the complainant, or other sexual conduct engaged in by the accused towards that complainant, may be admissible as tendency evidence under s 97 of the Evidence Act. Such evidence may demonstrate that the accused, at the relevant time, had a sexual interest in the complainant, and had, on other occasions, acted on that interest.[16] The High Court explained the approach to single-complainant cases in R v Bauer (a pseudonym) as follows:

    Henceforth, it should be understood that a complainant’s evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.

    … [I]t has long been the law that a complainant’s evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts.[17]

    [16]Briggs (a pseudonym) v The King [2024] VSCA 80, [52] (Beach, Walker and Kaye JJA).

    [17]R v Bauer (a pseudonym) (2018) 266 CLR 56, 82 [48]–[49] (the Court); [2018] HCA 40 (emphasis added) (citations omitted) (‘Bauer’).

15. The Court went on to approve the remarks of Kiefel J in HML v The Queen concerning what was then termed ‘relationship evidence’, namely ‘all the conduct of a sexual kind that has taken place between the accused and the complainant’, including uncharged acts.[18] Kiefel J said as follows:

    Clearly, relationship evidence is relevant as showing the sexual interest of the accused in … the complainant. Its relevance in this regard has been acknowledged by judges of this Court and by judges of State courts. There can be little doubt about its probative force. It may reveal a tendency in the accused, sometimes described as a motive. Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed. It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so. The evidence may then render more probable the commission of the offences charged.[19]

    [18]Bauer (2018) 266 CLR 56, 82–3 [49] (the Court); [2018] HCA 40.

    [19]HML v The Queen (2008) 235 CLR 334, 494–5 [493]; [2008] 235 CLR 334 (emphasis added) (citations omitted).

16. That is, proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the same complainant on another occasion, at least where the two are not too far separated in point of time.[20]

    [20]Bauer (2018) 266 CLR 56, 83 [50] (the Court); [2018] HCA 40.

17. The High Court also observed that the basis of cross-admissibility of evidence of charged acts and uncharged acts rests on the ‘very high probative value’ of that kind of evidence. That ‘very high probative value’ was said to result from

    ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.[21]

    [21]Bauer (2018) 266 CLR 56, 83 [51] (the Court); [2018] HCA 40 (citations omitted).

18. Importantly for present purposes, the Court also said this:

    [T]he fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant’s account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused’s guilt of the charged offences.[22]

    [22]Bauer (2018) 266 CLR 56, 84 [51] (the Court); [2018] HCA 40 (citations omitted).

19. It is necessary to say something about IMM v The Queen, upon which the applicant relied. In that case, the majority held that a complainant’s evidence of a sole uncharged sexual act did not have significant probative value. That was because the principal issue in that case was the complainant’s credibility. In those circumstances, the majority held, the complainant’s evidence of the uncharged act was rationally incapable of adding significantly to the probability that the complainant was telling the truth about the charged acts.[23] The plurality in IMM also observed, more generally, that a complainant’s evidence of an uncharged act can generally have only limited capacity rationally to affect the probability of the complainant’s account of the charged acts being true, unless there are some special features of the complainant’s account of the uncharged act.[24]

    [23]IMM v The Queen (2016) 257 CLR 300, 318 [62]–[63] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14 (‘IMM’).

    [24]IMM (2016) 257 CLR 300, 318 [62] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.

20. However, in Bauer the High Court confined the effect of the earlier remarks in IMM, saying this:

    [S]trictly speaking the reasoning of the plurality in IMM was limited to the case there under consideration: one which involved an uncharged act relevantly remote in time and of a significantly different order of gravity from the charged offending. IMM may be distinguished from a case like the present, where what is in issue is a course of offending comprised of a succession of uncharged sexual acts, of generally a similar kind to the charged acts, interspersed between the charged acts throughout the alleged period of offending. Thus, despite the apparent generality of the dicta in IMM, henceforth it should not be regarded as implying any departure from the majority opinions expressed in HML or, therefore, as contrary to the reasoning in JLS, MR, PCR, Velkoski or Gentry as to the high probative value which is ordinarily to be attributed to a complainant’s evidence of uncharged sexual acts. IMM should be understood as confined to the particular, relatively exceptional circumstances of that case.[25]

    [25]Bauer (2018) 266 CLR 56, 86 [55] (the Court); [2018] HCA 40 (emphasis added).

21. The Court then considered the approach of the majority in Hughes v The Queen.[26] In its decision in Bauer,[27] this Court had concluded that the majority judgment in Hughes ‘dictated that, in a single complainant sexual offences case, evidence of charged acts is not admissible as tendency evidence in proof of other charged acts, and that evidence of uncharged acts is not admissible in proof of charged acts, unless there is some “special feature” of the complainant’s evidence’.[28] The High Court considered that this Court had equated the significance of the particular features of the offending identified in Hughes with the significance of the special features of a complainant’s account of an uncharged act referred to in IMM. However, the High Court in Bauer said that this ‘mistook the logic of when and why it is necessary that sexual offending have some “special feature” about it in order to render it significantly probative of other sexual offending’.[29]

    [26]Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).

    [27]Bauer v The Queen (No 2) [2017] VSCA 176.

    [28]Bauer (2018) 266 CLR 56, 86 [56] (the Court); [2018] HCA 40.

    [29]Bauer (2018) 266 CLR 56, 86 [56] (the Court); [2018] HCA 40.

22. The High Court in Bauer pointed out that Hughes involved a multiplicity of complainants. In such cases, for evidence of offending against one complainant to be significantly probative of offending against another, ‘there must ordinarily be some feature of or about the offending which links the two together’.[30] Absent such a feature, evidence that an accused has committed a sexual offence against one complainant proves no more about the alleged offence against another complainant than that the accused has committed a sexual offence against the first complainant — but the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.[31] The Court contrasted that kind of case with a single complainant case:

    By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. … [E]vidence that an accused has committed one sexual offence against a complainant taken in conjunction with evidence of another sexual offence against the complainant suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents. And as has been seen, that is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents.[32]

    [30]Bauer (2018) 266 CLR 56, 87 [58] (the Court); [2018] HCA 40.

    [31]Bauer (2018) 266 CLR 56, 87 [58] (the Court); [2018] HCA 40.

    [32]Bauer (2018) 266 CLR 56, 88 [60] (the Court); [2018] HCA 40 (emphasis added).

23. The applicant’s contention that defence counsel at the trial ought to have challenged the admissibility of the tendency evidence falls to be assessed against the background of those principles. I will address each of the applicant’s points in turn.

24. First, the fact that the ‘only source of the charged and the uncharged acts which constituted the tendency evidence was the complainant’ leads nowhere. Bauer makes clear that a single complainant’s evidence of charged and uncharged acts against them can be significantly probative of a fact in issue and thus admissible. To the extent that the applicant relied on IMM, that reliance was misplaced given the High Court’s approach to that case in Bauer.[33]

    [33]Likewise, the applicant’s reliance on the decision of Priest JA in Packard was misplaced. First, Priest JA was in dissent in that case. Furthermore, Packard was decided before the High Court’s decision in Bauer had been handed down, and Priest JA’s analysis therein cannot survive Bauer.

1. Secondly, the applicant relied upon the proposition that NV’s evidence of the applicant’s tendency was ‘unsupported by any other evidence’. There are two reasons why I would reject that argument.

   (a)First, it is not accurate. NV’s evidence was supported by evidence of opportunity, in particular through NV’s mother’s evidence. In addition, NV’s credibility was supported by evidence that she had complained to various people about the conduct in which she alleged the applicant had engaged.

   (b)Secondly, there is no requirement that, in order to be admissible, tendency evidence given by a single complainant must be supported by other, independent evidence.[34]

   [34]Packard (2018) 271 A Crim R 353, 399–400 [156] (Beach JA and Beale AJA); [2018] VSCA 45.

2. Thirdly, the applicant contended that none of the charged or uncharged acts bore any ‘special feature’. But Bauer makes clear that there is no requirement, in a single complainant case, for the charged or uncharged acts to have any special feature of the kind required in a multi-complainant case.

3. Fourthly, the applicant contended that NV’s tendency evidence was ‘very general, vague and riddled with inconsistencies’. This submission cannot be accepted. NV’s evidence concerning the offending was specific in relation to the charged acts and in relation to some of the uncharged acts. She was able to link the charged acts to particular events and the uncharged acts to particular locations. She was also able to recall in some detail the positions of her body and the applicant’s body, explain where her mother or other adults were, and describe in some detail the particular acts she alleged the applicant had committed. Furthermore, although it may be accepted that there were some inconsistencies in NV’s evidence,[35] such inconsistencies are to be (and were in this case) properly dealt with by directions under s 54D of the Jury Directions Act 2015. No complaint was made about those directions, either at trial or on the application for leave to appeal.

   [35]The inconsistences are considered in greater detail in the analysis of ground 3, below.

4. In light of the above matters, there was no prospect that NV’s tendency evidence would have been ruled inadmissible. Defence counsel’s decision not to challenge the tendency notice was thus a rational forensic decision, not an error. It did not lead to a miscarriage of justice.

   (4)Failure to challenge the admissibility of PL’s observations about the swag

5. The fourth error said to have been committed by defence counsel was the failure to object to PL’s evidence in his VARE that he had observed ‘cum stains and hairs’ on the mattress and sheets in the swag, or to his oral evidence in which he said he thought the hairs ‘looked like pubic hairs’. To the extent that he identified the stains as semen stains, and the hairs as pubic hairs, his evidence was plainly opinion evidence and plainly inadmissible. It is thus curious that defence counsel did not seek to exclude that aspect of his VARE (and had she done so, the questions that led to his answer concerning pubic hairs would not have occurred). Had counsel sought to do so, that evidence would, in my view, have been excluded.

6. Thus, returning to the first question to be asked in an appeal based on alleged errors by counsel, I do not consider that the decision to allow PL’s opinion evidence concerning the stains and hairs in the swag to be admitted can be characterised as a result of a rational forensic decision made by counsel.

7. The next question is whether that failure resulted in a substantial miscarriage of justice to the applicant. There are several reasons why I consider that it did not.

8. First, counsel cross-examined PL appropriately in relation to his lack of expertise. After introducing the topic of the swag, counsel proceeded as follows:

   … And just to be clear, you said you saw some stains and hairs on there?---Yes.

   And not to be critical, but you’re not a forensic scientist?---No.

   You presumed what they were?---Yes, I did.

   You don’t have any particular knowledge as to actually what was on the bed, if anything?---No, I don’t.

   You couldn’t say if they were hairs from someone’s head?---Ah, from what I saw it looked like pubic hairs.

   Okay - - -?---Um - - -

   Sorry, you go on?---But as for the stains, I don’t know what they were for sure.

   And as to who they might be from, you couldn’t say, because obviously you’re not a forensic scientist?---Yeah, yeah. That’s basically it, yeah.

9. Secondly, the trial judge directed the jury clearly and thoroughly about the shortcomings of PL’s evidence about the swag and the fact that the prosecution did not rely on that evidence. Her Honour also gave a forensic disadvantage direction, as requested by defence counsel. Her directions on these issues were as follows:

   [Y]ou will recall [PL] spoke about seeing a camping swag which he was told by [NV] was a camping swag in which perhaps one or an event of sexual activity had occurred between herself and the accused. [PL] gave some detail about what he thought he saw on that camping swag and he said that he put it somewhere.

   Now on this evidence it is the evidence of the informant officer that he tried to look for that camping swag but did not find it.

   There is a potential forensic disadvantage to the accused on the lack of this piece of evidence as there is evidence that a piece of evidence may have existed. That evidence was not tested, that piece of evidence cannot be found. Now, it was pointed out to you that [PL] is not any kind of forensic expert. He had a view of what he saw but he is not a forensic expert at all.

   I suggest to you that his assumption of what he saw is unable to be tested and you must not speculate on what might have been found, had it been. It is a matter for you. The prosecution do not rely on this evidence as far as I can see from the submissions of the prosecution. [Defence counsel] has told you that if it were able to be tested, it might or might not have shown something that might or might not have assisted or not assisted the defence case. My direction to you is that you must not speculate. You must not use a lack of evidence to gap fill anything in the prosecution case. It is evidence that does not exist, it is evidence that is not there, and as I understand it, the prosecution do not particularly rely on [PL’s] observations, other than the fact that he observed a swag and it had some dirt on it, had something on it.

   In that regard though, it is the case that you should take into account perhaps in general terms, that there has been a loss of opportunity for that investigation to occur. You must take into account that potential loss of opportunity when assessing the case as a whole. You must take any disadvantage that you might find has occurred into consideration in determining whether the prosecution has proven the accused’s guilt to the required standard.

10. Thirdly, even if the jury had, contrary to the judge’s direction, accepted PL’s evidence that there were semen stains and pubic hair in the swag, that fact would not have pointed to the guilt of the applicant. It was the applicant’s swag and there are various ways in which semen and/or pubic hairs might be left in it that did not involve him offending against NV. That is, it is no more probable that such things were left in the applicant’s swag by reason of his offending against NV than that they were left in the applicant’s swag by reason of him sleeping in that swag and engaging in sexual activity, whether with another person or alone.

11. Ultimately, although I consider defence counsel erred in not seeking to exclude PL’s evidence on the semen stains and hairs, the impact of that evidence was neutralised by the cross-examination and the judge’s directions. No substantial miscarriage of justice occurred.

    (5)Failing to object to the prosecutor’s approach to the character witnesses

12. The final matter upon which the applicant relied under ground 1 was trial counsel’s failure to object to the prosecution’s approach, in closing, to the character evidence. The written submissions explained the matter in this way:

    Defence counsel led evidence of the applicant’s good character and the prosecutor, in closing, attacked the character evidence by suggesting that none of the character witnesses had seen anything. Defence counsel did not object to this aspect of the prosecution closing address nor sought a re-direction as to the use of character evidence. Character evidence is an exception to the hearsay rule, the opinion rule, the tendency rule and the credibility rule. The way to counter that evidence is to call evidence of the applicant’s bad character.

13. In order to resolve this aspect of ground 1, it is necessary to set out in some detail some passages from the evidence given by the character witnesses, AS (the applicant’s father) and HL (a family friend).

14. AS gave evidence about various matters concerning the applicant’s history, including the applicant’s relationship with NV’s mother, where the applicant slept at various times and the camping trips the applicant went on with NV. AS was also asked if he ever saw anything unusual — that is, sexual — happening between NV and the applicant, to which he replied ‘no’. In addition AS gave character evidence, which was as follows:

    And [the applicant] has never been charged with any crime before or got any prior convictions?---No.

    Are you able to say anything else in relation to [the applicant’s] character as you know him as – obviously, you’re his father, but in relation to what you can say about his character?---Look, [the applicant’s] a — he’s a solid bloke. Um, he knows right from wrong. Ah, I — I believe him to be scrupulously honest. Um, yeah, boils down to it, he’s — I think he’s a good person.

    Now, in relation to had you heard or seen anything unusual upon reflection of the past few years that they were in a relationship, so not just would you tell police, but you would tell the court if there was anything that you could think of that would cause concern about the relationship you saw between [NV] and [the applicant]?---Not a thing.

15. In cross-examination, AS agreed that he could not say what had been happening at the applicant’s home when he was not there.

16. HL also gave evidence about matters concerning the applicant’s history, and was asked about whether he had ever seen anything ‘unusual or untoward’ occurring between the applicant and NV, to which he answered ‘no’. Amongst other things, he said this:

    If I saw anything untoward I would have reported it, and I’ll be honest I would have walked outside and tried to calm down, but I would have called the cops.

17. He also said that he had visited the applicant at the applicant’s brother’s house, but agreed that he had not been there when the applicant and NV were there together, without NV’s mother.

18. HL gave character evidence as follows:

    Now, in relation to just generally are you able to say what type of person [the applicant] is to you, what your observations have been of him over the years, what kind of bloke he is?---I’d say salt of the earth, um, straight up, and he’s shown integrity to me. If he hadn’t I wouldn’t be friends with him for this period of time.

    And now with the benefit of hindsight reflecting back as you sit here today you don’t know the individual allegations that are said to have been made by [NV], do you?---I saw her once in the shopping centre and I don't know the individual, and as I said to her, ‘I hope when it goes to court the truth comes out.’

    …

    In relation to with the benefit of hindsight knowing there are some sexual allegations are you able to say looking back over the years whether you observed anything now with that benefit of hindsight that causes you any concern?---There’s nothing that stands out or I wouldn’t be in contact with [the applicant] now if I believed that to be the case.

19. In addition, the informant gave evidence that the applicant had no prior convictions and no pending matters.

20. The prosecution addressed the jury in relation to the applicant’s character as follows:

    Now I’m going to address you briefly on the accused character. Now you would’ve realised by now the prosecution case is that [the applicant] was offending against [NV] from 2009 up until 2018 and it was in secret. You heard the witnesses give evidence today and you might think clearly, none of them have any idea of what this offending is and what’s alleged. They didn’t live in that house, they didn’t go on the trips, they didn’t go fishing.

    [AS] saying he didn’t know about trips. [unclear] confirmed that to you because you know, [NV] and [her mother] said there were such trips. They weren’t challenged on it. And you might think, well their dad, brother, friend. Of course they're going to support the accused. They barely saw the accused with [NV] and in the end, what they said accords with everything you know about this family. [NV] told you, it was a normal step-dad, step-daughter relationship for all intents and purposes, other than what was going on behind closed doors.

    It’s unsurprising that no one saw it. It’s unsurprising that none of his friends and family had any inkling of what was going on. And you know that last witness was particularly bias[ed]. He had no idea of the allegations and approached [NV] in the shops. I mean you’ll give his evidence what little weight it deserves and the prosecution says none. You ought to reject it. It’s a matter for you of course. You can reject, accept, all parts, some, none of any witness’ evidence.

    Now you heard through the informant that [the applicant] has no prior matters and nothing pending and Her Honour will tell you how you can use this. And you might think to yourself ‘Well the fact he’s never been in trouble before and prior good character has pretty little relevance in a case like this’. Offending over seven years, pre-meditated, sexual offences, behind closed doors, designed so that no one will ever find out.

    … Now the fact that someone of good character does not alter what [NV] told you, it doesn’t alter the proven facts as you find it. It’s just part of the case and remember, and this is pretty obvious, a person of good character can of course offend for the first time. And in this case, the prosecution submits he was offending, he was offending for a long time.

21. In her address to the jury, defence counsel relied upon the character evidence of AS and HL and said this:

    What do the witnesses that you heard from actually ever see themselves. What do they actually physically themselves see. Not what they were told; what did they see? What did they witness? What did they observe? What did they view, what was their experience? Is there a loving, a caring, nice man, a step-father, and someone who was there for [NV]. [TD] herself said it, and I’ll repeat it to you. ‘He was a great step-father to [NV].’ And I said to you, and you heard from the character witnesses, ‘he was a salt-of-the earth guy’, he was a nice guy, he was someone who all three witnesses said to you, the character witnesses, if they had seen anything they would have told someone, either the police or [TD]. They didn’t hesitate to tell you that. They saw nothing suspicious, even with the benefit of hindsight, even as they know that there are sexual allegations between the two of them, nothing rings any bell. They were all disgusted by it, and they all were very happy to tell you this was a good man, a caring man and someone who loved [NV] dearly.

22. In addition, the trial judge gave the jury a direction in relation to character:

    There is one further direction that I can give you about the accused though, and that is in relation to the evidence of the officer-in-charge that the accused has no prior criminal convictions. If you accept as a result of that and as a result of the general evidence from his witnesses that he is a person of good character, you may take that into account in some way. As a person of good character it is a matter that you are entitled to take into account. You can use it when determining the likelihood that the accused has committed the offence or offences that he was charged with. It is generally believed that a person of good character is unlikely to commit a criminal offence, and as that is the case you may be less willing to accept the prosecution allegations that he has committed the offences as charged on the indictment. You might be less willing to accept that than you would be if you heard that he was a person with a criminal record.

    Now, of course this does not mean that you must find the accused not guilty even if you do accept that he is a person of good character. The mere fact that a person is a person of good character cannot alter proven facts. It can only help you to determine whether or not those facts have been proven. In addition, you must keep in mind the fact that a person who has previously been of good character can commit a crime at the first time and this is one of those common sense directions members of the jury. Offences such as this are sometimes committed by people of good character.

23. Returning to the applicant’s complaint about what occurred, issue was taken with the fact that the prosecution ‘attacked the character evidence by suggesting that none of the character witnesses had seen anything’ and the failure by defence counsel ‘to object to this aspect of the prosecution closing address’ or to seek a ‘re-direction as to the use of character evidence’.

24. This complaint may be disposed of shortly. While AS and HL both gave character evidence, they were also asked by defence counsel whether they had ever seen anything unusual or untoward between the applicant and NV. Both of them said that they had not. Defence counsel having adduced that evidence, the prosecution was entitled, in closing, to utilise that aspect of their evidence.

25. Furthermore, the trial judge gave appropriate directions to the jury about the manner in which they could use the character evidence.

26. Defence counsel’s decision not to object to the manner in which the prosecution approached the evidence given by the character witnesses was thus a rational forensic decision, not an error. Furthermore, the manner in which the character evidence was given and was dealt with by counsel and the judge was unexceptional and did not result in any miscarriage of justice.

    (6)Conclusion on ground 1

27. The applicant relied on five matters said to constitute errors on the part of defence counsel. In my opinion, only one of those matters constituted involved a decision that could not be characterised as a rational forensic decision by counsel (the failure to object to PL’s evidence concerning semen stains and hairs in the swag). For the reasons given above, I consider that this error did not result in any miscarriage of justice.

28. I would therefore refuse leave to appeal on ground 1.

    PART C:GROUND 2: TRIAL JUDGE’S CONFLATION OF CONTEXT AND TENDENCY EVIDENCE

29. Ground 2 was that a substantial miscarriage of justice occurred because the trial judge, when charging the jury, conflated the tendency and context evidence and suggested that the context evidence could be used as evidence of tendency.

30. It is necessary, in considering this ground of appeal, to set out in detail the judge’s directions on context and tendency evidence. In relation to tendency evidence, the judge’s charge was as follows:

    Members of the jury, part of the prosecution case is that the accused has demonstrated a sexual interest in the complainant and further, it is part of the prosecution case that he has demonstrated a willingness to act on that interest. Madam Prosecutor has outlined a summary of some of this evidence as contained in the evidence of the complainant during her evidence-in-chief and cross-examination.

    In summary, the allegations of the prosecution are that the accused in particular demonstrated the state of mind and taking advantage of the accused, by taking advantage of his access to or proximity to the complainant and the position of trust and authority that the prosecution say he had over the complainant by, the prosecution say, sexually offending against her while she was alone in his care.

    They rely in particular on the evidence contained in Charges 1, 2, 3, 6 and 7 for the this sort of conclusion. The prosecution say that further, by exploiting the accused’s position of trust and authority over the complainant, he created opportunities to be alone with her in order to commit sexual acts upon her and in particular they refer to the evidence in Charges 4, 5 and 6 that we have just gone through.

    The prosecution say further, that from time to time, the accused offered inducements to the complainant to ensure her compliance with or submission to the particular sexual acts that they allege he committed on her and these are Charges 7 and 8.

    The prosecution argues that this evidence taken either individually or as a whole, will lead you to accept what the prosecutor submits is that he had a sexual interest in the child and further, that he had a tendency to act on that sexual interest. In response, [counsel], for the defence says that you would not accept the evidence of the complainant on any and certainly not all of these matters.

    These are factual matters for you to decide members of the jury. I do not propose to give you any further summary or direction on those matters. You know the allegations are. What I am explaining to you is how you can use the allegations if you find them to be true.

    If you do find that the accused had a sexual interest in the complainant and, was willing to act on that sexual interest, and if you find that by considering the evidence for example on one charge, then you can use that consideration or finding to consider whether the accused is more likely to have committed another charge. You will consider this by deciding whether the evidence, whatever it is you decide it is, can lead you to a conclusion as to his state of mind and whether that state of mind existed.

1. The judge then dealt separately with context evidence, as follows:

   Now apart from the evidence in each of the individual charges, the prosecution have also been permitted to present evidence which was referred to as context evidence. This evidence is the second category of evidence that I just mentioned that the prosecution have been permitted to place before you and this is the evidence of the complainant saying words to the effect of, ‘These events happened regularly’ — they happened in the ordinary course of life — my words — as to what was happening in the household over a period of time. The complainant’s evidence in general terms was that she considered it to be normal for quite some time and had considered it to be ordinary. This is called context evidence. You are entitled to take into account when considering the complainant’s evidence as a whole. The prosecution submits that this evidence in effect sets the scene in which the alleged offences took place.

   Without this context evidence, there is perhaps a risk that the complainant’s or [NV’s] evidence would seem to be incomplete, and might be in some ways incomprehensible. The contextual information can assist in helping you understand firstly, the complainant’s alleged conduct or state of mind at the time of a particular offence that you might be considering and why she might have submitted to a particular course of action if you find that she did. It might also explain the accused alleged conduct or state of mind at the time of a particular offence you might be considering and why, if you find it occurred, he felt able to act in what might be otherwise be considered to be a particularly brazen manner.

   The other thing you would take into account is the circumstances of the alleged offence that you are considering. Such as to show that the complainant does not say that a particular offence occurred out of the blue, without any warning. If such an offence as you might be considering had occurred out of the blue without any warning, then you might consider her reaction might have been different. But because of the context evidence, that gives you some context as to what the situation was from the complainant’s point of view and perhaps from the accused point of view.

2. The judge also made some more general remarks directed to both the context evidence and the tendency evidence:

   However members of the jury, you must keep this context evidence in perspective. It is only one part of the prosecution’s case. It is not enough to convict the accused, if you do find that he had a tendency to act in a particular way or have a state of mind, or if you find that the context evidence is acceptable to you, that is not sufficient for you to find in and of itself, that the charge you are considering happened in the way that you must consider.

   You must not consider that because a particular event occurred on one occasion, it must have happened on another occasion. You must go through the process of considering the evidence, deciding whether the accused had a particular state of mind or a particular tendency and then decide whether that particular state of mind or that tendency assists you in deciding whether to accept the evidence of the complainant with respect to a particular charge that you are considering.

   You can only find the accused guilty of a charge if you are satisfied of that guilt for that charge to the standard of beyond reasonable doubt, based on the whole of the evidence. You must be satisfied on the evidence relevant to that particular charge, but you are entitled to consider the prosecution’s tendency argument when considering the case as a whole. You are entitled to consider the context evidence when considering the complainant’s evidence as a whole and in relation to considerations on each individual charge.

   Importantly members of the jury, as I have told you again a couple of times already, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn or decide about the accused. The evidence has been led for the limited purpose of helping you understand the circumstances surrounding the alleged offending and to show you that in the prosecution argument, the accused had a sexual interest in the complainant and a willingness to act on that sexual interest.

3. No objection was taken to these directions, either at trial or before this Court. Rather, the applicant contended that, later in her charge, the judge, when returning to context and tendency evidence, conflated the two. The relevant passage from her Honour’s charge upon which the applicant relies was as follows:

   Members of the jury, I am just going to recap about the tendency and context evidence again to summarise hopefully briefly, what I just told you before our short break.

   The evidence of other events, the context evidence is relevant for you to consider whether it shows the accused had a sexual interest in the complainant and whether he was prepared to act on that interest, a matter for you.

4. Immediately after that passage, the judge went on as follows:

   If you find that the accused did have such a sexual interest based on what the complainant said and, you accept that as a result of evidence that you do accept that he was prepared to act on that interest, then and only then can you use that consideration in inferring that on another occasion that you are considering, that he was again prepared to act on that sexual interest. If you do not accept the proposition that the accused had such a sexual interest and/or was prepared to act on it, then you must put that evidence aside. It is completely irrelevant and you must ignore it, because it would be — if you can’t find it, it is irrelevant to your considerations and you must ignore it.

5. The judge then moved on to address the question of delay in complaint.

6. The respondent submitted in writing that, when regard is had to the detailed directions that the judge had previously given on tendency and context evidence, where the two were clearly separated, the passage in the judge’s ‘recap’ was a slip. In oral argument, the respondent contended that the judge’s statement did not involve error, because the evidence admitted as tendency evidence, once it was so admissible, was also available to be used as context evidence. That is, a single piece of evidence — such as NV’s evidence about the uncharged act involving sexual conduct in the swag at CS’s property — might be used in two different ways by the jury. The respondent further submitted that all of the context evidence in the present case was admissible as tendency evidence, thus the judge cannot be said to have erred in her recap.

7. In response, the applicant submitted that a particular piece of evidence must be either tendency evidence or context evidence — it cannot be both.

8. The short answer to the applicant’s case on ground 2 is that the judge’s directions, when read as a whole, did not conflate context and tendency evidence. The judge had earlier analysed each correctly and separately, in a careful and detailed manner. The judge’s remark in her recap — that the context evidence could be used in considering whether the applicant had a particular tendency — was perhaps unhappily expressed. But I do not consider that there is any risk that the jury would have misunderstood the difference between context and tendency evidence as a consequence of that further, brief remark. Thus there was no substantial miscarriage of justice, even assuming that the judge’s remark involved error.

9. Furthermore, in this case, the judge’s remark did not involve error. That is because a piece of evidence that is admissible as tendency evidence (having met the statutory requirements for such evidence in ss 97 and 101 of the Evidence Act) can be used as context evidence, in addition to being relied upon to prove a particular tendency. For example, NV’s evidence concerning the conduct in the swag at CS’s property was admissible as part of the tendency evidence,[36] and it also provided some context in relation to the apparent gap in the offending on the face of the charges. Without that evidence, and other evidence of uncharged acts, there may have been a risk that NV’s evidence would seem incomplete, or implausible.

   [36]No objection to its admissibility was taken at trial.

10. However, the converse is not true — that is, evidence that is admissible as context evidence is not thereby admissible to prove that an accused person has a tendency to have a particular state of mind, or to act in a particular way, unless the evidence also meets the requirements of ss 97 and 101. Thus the judge’s statement to the jury that the context evidence could be considered when determining whether the applicant had a particular tendency was only correct if all of the context evidence was also admissible as tendency evidence. The respondent submitted that it was, and pointed to the manner in which the case was conducted and the breadth of the tendency notice.

11. In this case, the only evidence relied upon as context evidence was NV’s evidence of uncharged acts. That evidence was also the subject of the tendency notice and was properly admitted as tendency evidence. Thus in this case all of the context evidence fell within the scope of the tendency notice. The consequence is that the judge’s remark — that the context evidence could be used to consider whether the applicant had a particular tendency — did not involve error. The jury could permissibly use NV’s evidence of uncharged acts (ie the context evidence) when it was considering whether the applicant had the tendency alleged by the prosecution.

12. Ground 2 must therefore fail.

    PART D:GROUND 3: VERDICT UNREASONABLE AND NOT SUPPORTED BY THE EVIDENCE

13. Ground 3 is that the jury verdicts were unreasonable and could not be supported by the evidence. In Hickman (a pseudonym) v The Queen, this Court said as follows:

    To succeed, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on a particular charge or issue. Another way of expressing the enquiry whether it is open to a jury to be satisfied beyond reasonable doubt is to ask whether the jury must, as distinct from might, have entertained doubt about the applicant’s guilt.

    But, to reach the view that it was not open to the jury to be satisfied of guilt beyond reasonable doubt, and thus to set a jury’s verdict aside, is a ‘serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’. Furthermore, the ‘boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way’.[37]

    [37]Hickman (a pseudonym) v The Queen [2022] VSCA 75, [39]–[40] (Forrest, Walker and Macaulay JJA) (emphasis in original) (citations omitted) (‘Hickman’).

14. When assessing this ground of appeal, the question is whether ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[38] In determining that question, this Court must:

    (a)give full weight to the principle that the jury is the body entrusted with the responsibility of determining the guilt or innocence of the accused, and has the advantage of having observed the witnesses, and of having aspects of the evidence explained to it in a visual form;

    (b)undertake an independent assessment of the whole of the evidence before the Court, in light of the submissions made by the appellant (or applicant);

    (c)assume, in a case of this type, that the complainant’s evidence was assessed by the jury to be credible and reliable, but nonetheless examine the record to see whether ‘either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’ the jury, acting rationally, ought nonetheless have entertained a reasonable doubt.[39]

    [38]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’).

    [39]Churchill (a pseudonym) v The King [2024] VSCA 151, [78] (Beach, Taylor and Orr JJA). See also M (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123, 145 [39] (the Court); [2020] HCA 12 (‘Pell’); Gardner (a pseudonym) v The King [2024] VSCA 83, [80]–[88] (Emerton P, McLeish and Macaulay JJA).

15. When an applicant relies upon inconsistencies or discrepancies in a complainant’s account, it is only when the extent and nature of the inconsistencies and discrepancies are such as to preclude any rational means of reconciling them with persuasion of guilt beyond reasonable doubt that this Court can set aside a jury’s decision.[40]

    [40]Hickman [2022] VSCA 75, [51] (Forrest, Walker and Macaulay JJA).

16. The applicant’s submissions on this ground were as follows:

    A substantial miscarriage of justice has occurred where had the jury acted rationally, should have entertained a reasonable doubt about the applicant’s guilt. The complainant was neither credible nor reliable because she told lies to friends and authority figures when she was in a tight spot and changed her story when it suited her. Her complaints are inconsistent and at odds with what the complaint witnesses say. She said in her first VARE that the applicant started to use protection when she turned 12. In her second VARE conducted nine months later, she said he only used a condom once. After she complained to her school friends that the applicant had raped her, she told a DH&HS worker that she was talking about a friend of hers and not herself. Her account of the applicant having sex with her all the time when her mother was in America was implausible and improbable.

17. In oral argument the applicant emphasised NV saying to a welfare officer that she had made up the allegation of rape, showing that there were aspects of her evidence that were ‘patently false’. He also submitted that NV’s evidence of tendency was ‘very vague’ — she said that ‘it happened all the time’. He pointed to the fact that in one VARE she said that the applicant used a condom ‘all the time’, but had later said that he only used one once. He submitted that she had made no mention of the fact that she was on the pill. He submitted that, in light of these matters, NV’s evidence was unreliable and she was not a credible witness.

18. I have undertaken an independent assessment of the evidence before this Court for myself, in light of the applicant’s submissions, and in light of both parties’ closing addresses and the judge’s directions to the jury at the trial. Having done so, I consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the charges.

19. As discussed above, NV’s evidence about the offending was detailed and it was open to the jury to accept it, as they plainly did. There were some inconsistencies in her evidence, and between her evidence and the evidence of the complaint witnesses. For example:

    (a)NV initially said in her first VARE that, once she turned 12, the applicant started using condoms — whereas, in her second VARE, she said he only used a condom once.

    (b)In relation to charge 6, the offending at the beach hut, in her first VARE NV said that she had been on top of the applicant; however, when she was cross-examined the evidence was that the applicant was on top of her.

    (c)In relation to the offending concerning the iPhone (charge 7), NV said that she told two friends about that offending on the day that she took the iPhone to school, including CN, and also that she told CN that she had been having sex with the applicant since she was seven. CN’s account of what NV had told her was different — CN recalled being told on two separate occasions that the applicant had held NV down and raped her, but did not recall being told anything about how NV had obtained the iPhone.

    (d)In relation to the offending concerning the vodka Cruisers (charge 8), NV’s evidence was that, at the party to which she took the Cruisers, NV told a group of her friends how she had obtained them — that is, by permitting the applicant to have sex with her. However, the friends in question gave different accounts about what was said at the party — PT, for example, said that NV did not say what she had done to get them, just that it was something with her step-father. In addition, PL’s account of what he was told by NV (separately) was different from NV’s account of the offending.

    (e)More generally, at trial the applicant pointed to other inconsistencies between NV’s evidence and the complaint witnesses’ evidence, including when NV told them about the offending and the detail of what she told them.

20. In addition, NV’s evidence was that the conduct constituting charge 2 occurred while the applicant was wearing the ‘halo’. That was in the aftermath of his motorcycle accident, when he was seriously injured. His injuries included a cut on his head, which needed stitches, bleeding on the brain, a fractured eye socket and a fractured neck. He was required to wear the ‘halo’ brace, which was screwed into his skull and was supported by struts on the side of his neck and a strap around his waist that was padded with sheepskin. He was in pain, and he needed to be bathed and cared for, and his wounds cleaned. He spent most of his time lying on the couch on his back, and CS described him as being ‘hardly able to move’. The gravamen of the applicant’s case was that NV’s evidence that, with these injuries and pain, he was capable, while lying on the couch, with the metal brace screwed into his skull, of lifting NV up and sexually abusing her, was entirely implausible.[41]

    [41]This was not put directly to NV at the special hearing.

21. In anticipation of that aspect of the defence case, the prosecutor, in her closing address, told the jury that although the applicant was in pain early on after his accident, they could draw the inference that he was getting better over time.[42] The prosecutor pointed out that the ‘halo’ did not cover the applicant’s groin, and that NV’s mother’s evidence was that he could move and he could walk. There was no evidence that he could not get an erection. Thus it was not implausible that the applicant could have placed NV on top of him and rubbed his erect penis against her through their clothing.

    [42]In that respect, there was no precise evidence about how long the applicant wore the ‘halo’. NV’s mother estimated that it was for a period of around three months.

22. The applicant also pointed to the fact that there were no complaint witnesses (other than the informant) in relation to charges 1 and 2. That is, NV never told any of her friends or family members about that early offending, or that any of the offending occurred while the applicant was wearing the ‘halo’.

23. The applicant also submitted that there was other offending that NV never spoke about to her friends, such as the offending involving the pornographic DVD (charge 3), the offending in the bath (charge 4) and the offending in the garden shed (charge 5).

24. Finally, the applicant relied upon lies that NV told to ‘authority figures’, which appeared to be a reference to the situation when NV told her friends that she had performed oral sex on the applicant in order to get permission to borrow his iPhone, but told school welfare officers and the Department of Human Services (‘DHS’) that she was recounting what had occurred to a friend of hers at a former school. In her VARE she admitted that she had lied to the welfare officers and DHS on that occasion, and gave an explanation of why she had done so.

25. In my opinion, none of these matters requires the conclusion that it was not open to the jury to convict the applicant. All those matters were drawn to the jury’s attention by defence counsel. They were matters for the jury to take into account in their consideration of NV’s evidence, in light of the closing addresses and the directions they were given (including those given pursuant to s 54D of the Jury Directions Act). As already noted, no complaint was made about those directions, either at trial or on the application for leave to appeal. None of the inconsistencies, discrepancies or other inadequacy in the complainant’s evidence, or other evidence, was such as to have required the jury to have entertained a reasonable doubt about the applicant’s guilt.

1. The jury was the body entrusted with determining the applicant’s guilt or innocence. Ultimately, it was open to the jury, having evaluated NV’s evidence, to accept it. In that regard the jury had the advantage over this Court, in making judgments about credit and reliability, of seeing and hearing NV (and the other witnesses) give evidence, albeit NV gave evidence on video recordings. The experience of watching the complainant carefully over the periods during which she gave her answers would have conveyed valuable information to the jury in assessing the credibility of her evidence. This Court has not had that advantage.

2. Finally, as this Court observed in Hickman, ‘fair latitude is to be afforded to the jury in its method of reasoning when evaluating the complainant’s evidence and resolving tensions within it’.[43] As the High Court observed in Pell, ‘[t]he jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses’.[44] The jury was able to use its collective understanding of human nature and the scope for variation in people’s reactions and conduct to evaluate NV’s evidence and the inconsistencies and discrepancies in it. ‘Allowing the jury to employ its collective perceptions and understanding extends to permitting the jury to exercise a healthy degree of tolerance for human mistakes of recollection, expression or judgment where they consider that such tolerance is warranted’.[45]

   [43]Hickman [2022] VSCA 75, [56] (Forrest, Walker and Macaulay JJA).

   [44]Pell (2020) 268 CLR 123, 145 [37] (the Court); [2020] HCA 12.

   [45]Hickman [2022] VSCA 75, [56] (Forrest, Walker and Macaulay JJA).

3. For these reasons, I consider that ground 3 has no prospects of success.

   PART E:CONCLUSION

4. For the foregoing reasons, I would refuse leave to appeal.

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