BN v The Queen

[2011] VSCA 406

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0190

BN
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and HARPER JJA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2011
DATE OF JUDGMENT:	8 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 406
JUDGMENT APPEALED FROM	R v [BN] (Unreported, County Court of Victoria, Judge Parsons, 19 November 2009 (date of verdict/conviction))

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CRIMINAL LAW - Conviction - Multiple counts of indecent assault on a child under 16 - Incest - Whether verdicts unsafe and unsatisfactory - Procedure - Framing of counts - Particulars - Counts framed on ‘between dates basis’ - Counts using description ‘first occasion’ - Sufficiency of identification of conduct -  R v DWB (2008) 20 VR 112 and R v Osborne [2009] VSCA 88 distinguished - Applications for discharge of jury refused - Test of high degree of need - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher SC with Ms CA Boston	Doogue & O’Brien
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Beach AJA.

HARPER JA:

1. I also agree with Beach AJA.

BEACH AJA:

Introduction

1. On 9 November 2009, the appellant pleaded not guilty to a 22 count presentment containing counts of indecent assault upon a girl under 16 years and incest with a sister. The counts related to two of the appellant’s sisters, HL and BA. On 17 November 2009, the trial judge directed acquittals in respect of Counts 4, 5, 6, 15 and 16. On 19 November 2009, the jury found the appellant guilty of 11 counts of indecent assault upon a girl under 16 years (Counts 1, 2, 3, 7, 11, 12, 13, 14, 17, 19 and 21), contrary to s 55(1) of the Crimes Act 1958 as it was at the time of the offences, and five counts of incest (Counts 8, 9, 18, 20 and 22) contrary to s 52(3) of the Crimes Act as it was at the time of the offences.  The jury found the appellant not guilty of Count 10 (indecent assault upon a woman).

1. The appellant was sentenced as follows:

Count on Presentment	Offence	Maximum Penalty at Time of Offence	Sentence	Cumulation
1	Indecent Assault Upon a girl under 16 years	5 years imprisonment	12 months	6 months
2	Indecent Assault Upon a girl under 16 years	5 years imprisonment	12 months	1 month

3	Indecent Assault Upon a girl under 16 years	5 years imprisonment	3 months	1 month
7	Indecent Assault Upon a girl under 16 years	5 years imprisonment	12 months	3 months
8	Incest with a sister	7 years imprisonment	3 years	Base
9	Incest with a sister	7 years imprisonment	3 years	12 months
11	Indecent Assault Upon a girl under 16 years	5 years imprisonment	3 months	1 month
12	Indecent Assault Upon a girl under 16 years	5 years imprisonment	3 months
13	Indecent Assault Upon a girl under 16 years	5 years imprisonment	12 months	3 months
14	Indecent Assault Upon a girl under 16 years	5 years imprisonment	6 months	2 months
17	Indecent Assault Upon a girl under 16 years	5 years imprisonment	6 months
18	Incest with a sister	7 years imprisonment	3 years	12 months
19	Indecent Assault Upon a girl under 16 years	5 years imprisonment	6 months
20	Incest with a sister	7 years imprisonment	3 years	12 months
21	Indecent Assault Upon a girl under 16 years	5 years imprisonment	2 years	4 months
22	Incest with a sister	7 years imprisonment	3 years	12 months
Total Effective Sentence:		8 years 9 months
Non-Parole Period:		7 years

1. The appellant appeals[1] against his convictions.  The grounds of the appeal are:

(1)The verdicts on Counts 1-3, 7-9, 11-14 and 22 are unsafe and unsatisfactory in that it was not open to convict in view of the lack of particularity as to which of the occasions alleged formed the basis of the counts presented.

(2)The learned trial judge erred in failing to discharge the jury after jurors informed the judge that the appellant had sat too close to them at lunch time, making them feel uncomfortable.

(3)The learned trial judge erred in failing to discharge the jury after the prosecutor, when cross-examining the appellant, referred to his Filipino wife as a ‘mail order bride’.

[1]Pursuant to leave granted on 8 July 2011.

The Crown case

1. The appellant was born in 1952.  HL was born in 1959.  BA was born in 1960.

1. Counts 1 to 3, 7, 8 and 9 relate to HL.  So far as Counts 1 to 3 were concerned, the Crown case was that the appellant entered HL’s bedroom and got into her bed.  He put his penis into her mouth and rocked back and forth (Count 1).  He applied HL’s hand to his penis and moved it up and down until he ejaculated (Count 2).  He fondled and kissed her breast area (Count 3).  These counts were alleged to have occurred at the family home at Donvale and, according to the presentment, occurred on an occasion between 1 October 1969 and 31 December 1970.

1. Counts 7 and 8 were alleged to have been committed at the appellant’s Box Hill flat on an occasion between 1 January 1972 and 31 December 1973.  The Crown case was that HL visited the appellant’s Box Hill flat.  The appellant pushed her into the bedroom, undressed her, undressed himself and pulled her onto the bed.  He inserted his fingers into her vagina (Count 7).  He inserted his penis into her vagina and then ejaculated onto her stomach (Count 8). Afterwards, the appellant gave HL five dollars.

1. Count 9 was alleged to have occurred on an occasion between 1 September 1973 and 30 July 1974 at different premises in Box Hill.  The Crown case was that the appellant inserted his penis into HL’s vagina, engaged in penile/vaginal intercourse and then ejaculated onto her stomach.

1. Counts 11 to 14 and 17 to 22 related to BA.  The Crown case in respect of Counts 11 and 12 was that the appellant came into BA’s bedroom in the family home at Donvale and got into bed with her.  He rubbed her breast area (Count 11) and fondled the outside of her vagina (Count 12).  According to the presentment, these counts were said to have occurred on an occasion between 1 October 1969 and 30 April 1970.

1. Count 13 was alleged to have occurred on an occasion between 1 October 1969 and 21 June 1973.  The appellant was alleged to have come into BA’s bedroom at Donvale and inserted his finger into her vagina.  Count 14 was another occasion between 1 October 1959 and 21 June 1973 when the appellant was alleged to have entered BA’s bedroom at Donvale and masturbated himself with her hand, before ejaculating.

1. Counts 17 and 18 were alleged to have occurred on an occasion between 21 January 1972 and 7 October 1974 at the appellant’s Box Hill flat.  The appellant picked BA up and took her to the flat.  He removed his and her lower clothing and lay on top of her.  He applied his fingers to her vagina (Count 17).  He then had penile/vaginal sex with her before ejaculating on her stomach (Count 18).

1. Counts 19 and 20 were also alleged to have occurred on an occasion between 1 January 1972 and 7 October 1974 at the Box Hill flat.  The appellant laid BA onto the bed and applied a lubricant to the outside of her vagina (Count 19).  He inserted his penis into her vagina, engaged in penile/vaginal intercourse and then ejaculated onto her stomach (Count 20).

1. Count 21 was also alleged to have been committed at the Box Hill flat on an occasion between 1 January 1972 and 7 October 1974.  The appellant told BA to ‘suck his dick’.  BA put her mouth around the appellant’s penis.  She then vomited.

1. Count 22 was alleged to have been committed at the second Box Hill premises between 1 September 1973 and 7 October 1974.  On that occasion, the appellant had penile/vaginal intercourse with BA and then ejaculated onto her stomach.

1. When interviewed by the police on 20 June 2003, the appellant admitted sexually assaulting HL and BA when the family resided in Adelaide.  However, he denied all allegations of sexual assault in Victoria, and specifically the allegations made in respect of the family home at Donvale and the two Box Hill flat premises.

1. The appellant was not initially charged with any offences, but was told that charges were likely in the next few months.  Soon after the interview, the appellant altered a pre-existing booking to leave Australia for the Philippines on 9 July 2003, so as to leave on 28 June 2003.  He then made his way to the United Kingdom from where he was extradited on 9 March 2007.  In his evidence-in-chief at trial, the appellant said that whilst in the Philippines, he dropped his bundle and ‘lost the plot’.  He said he was sitting in a picture theatre with E (who was eventually to become his wife) when he left and went straight to a travel office and purchased a ticket to Manchester.  In evidence-in-chief, he was asked and answered the following questions:

Why did you go to Manchester?---I don’t know, because it was the wrong place.  Look, I’d, um, I just sought to go back to my hometown, uh, which was Evesham in Worcestershire, and I should have booked to Birmingham.  I booked to Manchester cos I’d – as I said, I wasn’t thinking straight.  That – that’s all it was.

Why did you go back to England?  Why wouldn’t you have returned to Australia?---To me it was a chance just to get my head together from the things that I was suffering with E at the time.

…

What subsequently happened in terms of your relationship with E?---We smoothed that over and I was easily able to get a visa into England for E, um, subsequently married.

When did you get married to her?---In February 2004.

Ground 1

1. Ground 1 makes complaint that the verdicts on Counts 1 to 3, 7 to 9, 11 to 14 and 22 are unsafe and unsatisfactory.  These counts were particularised as ‘first occasion’ counts as described by this Court in R v DWB.[2] It was submitted that the verdicts on these counts were unsafe and unsatisfactory because ‘the evidence did not disclose with sufficient particularity any occasion that was different from any other alleged occasion that might have formed the basis of each count charged’.

   [2](2008) 20 VR 112, 113 [4].

1. In support of this submission, counsel for the appellant relied upon R v DWB,[3] and R v Osborne.[4]  DWB was a case where the appellant was convicted of 19 counts of sexual assaults on his two daughters in an ongoing course of assaults between 1971 and 1984. Each count was framed on a ‘between dates’ basis.  A number of the counts were particularised in such a way that the specific conduct alleged as amounting to the offence charged was described simply as, ‘the first occasion’.  As was noted by the Court in DWB, the difficulty for the Crown was that:

It was clear from the depositions that neither [of the appellant’s daughters] had any recollection of any specific occasion on which the offence charged within these ‘first occasion’ counts took place.  Neither complainant could differentiate between the ‘first occasion’ and any other occasion.[5]

[3](2008) 20 VR 112.

[4][2009] VSCA 88.

[5]R v DWB (2008) 20 VR 112, 113 [5].

1. In DWB, the Court said:[6]

The starting point is, of course, that an accused person is entitled to have any criminal charge brought against him or her properly particularised.  Where the Crown alleges a course of conduct ‘between dates’, it will always be a question of degree as to whether the evidence led possesses sufficient particularity to enable the subject of the actual count to be identified.  When the count is particularised on a ‘first occasion’ basis, the evidence must enable that first occasion to be distinguished from all others.

[6]Ibid, [14].

1. The Court then discussed the authorities dealing with particulars which referred to the ‘first occasion’ of alleged series of offences, before then making reference to what was said to be ‘the important and prescient note of caution sounded by Tadgell JA in DPP v Lewis’,[7] namely:

I need not go so far as to say that a designated act charged as a criminal offence will always be sufficiently particularised if described as the first in a series of such acts committed by the accused between specified dates.  I am, however, satisfied to say that, in this case, the particulars of Counts 3 to 8 cannot at present be properly shown to be insufficient fairly to indicate the case the accused is required to meet.  Accordingly, I consider that the learned judge erred in ordering, on the grounds he assigned that those counts be permanently stayed.

[7][1997] 1 VR 391, 400.

1. R v Osborne[8] involved an application of R v DWB.  In that case, the Court held that the jury had been invited by the prosecutor, and permitted by the judge, to convict the applicant on ‘first occasion’ counts without there being any evidence to support the finding that the particular offence the subject of those counts had been committed.  On appeal, as was noted by the Court, ‘the Crown properly conceded that the convictions [on the relevant counts] could not stand’.[9]

   [8][2009] VSCA 88.

   [9]Ibid, [9].

1. Subsequently, in PPP v The Queen,[10] Redlich JA[11] said:[12]

It is commonly the case that offences of the present kind are charged by reference to the occasion (first or otherwise) on which they are committed.  Commonly the alleged circumstances of the offence may be set against a background of repeated conduct with the same victim in the same circumstances over a protracted period of time.  Experience has shown that commonly in such cases no distinguishing feature (additional to the occasion) of the offence charged can be provided.  If it is not disputed on trial that the accused and the complainant were, throughout the period specified in the count, in each other’s company at the place where it is alleged that the offences occurred, it may be no more than a theoretical possibility that more specific particularity of the occasion charged would advance the ability of the accused to answer the charge.  In the absence of demonstrated prejudice, to require some further distinguishing feature, would reduce the law to absurdity and would bring the administration of justice into disrepute.

[10](2010) 27 VR 68.

[11]With whom Neave JA and Lasry AJA agreed.

[12]Ibid, 89 [73].

1. In my view, the present case is distinguishable from R v DWB and R v Osborne.  Unlike the complainants in those cases, the complainants in the present case gave evidence which was specific and sufficiently particularised.  The counts in the present case were particularised with much narrower timeframes than those in R v DWB and R v Osborne.  Additionally, the particulars in the present case were enhanced by the reference to the different premises at which the various offences were alleged to have been committed.

1. With respect to Counts 1 to 3, HL gave a detailed description of the offences constituting Counts 1 to 3 as having occurred for the first time in 1970 at the family home.  HL’s description included the acts constituting Counts 1 to 3, what the appellant was wearing, the length of time the incident took place and the fact that the appellant told her that she ‘would be in trouble if [she] spoke about it’, and that she ‘would be sent to a naughty girls’ home’.

1. In her evidence, HL recounted other occasions on which she was sexually abused by the appellant.  In cross-examination, it was put to HL (and she agreed) that there was nothing to distinguish between the incidents one from another because they were all the same.  It was on the basis of this evidence that counsel for the appellant submitted that, consistently with R v DWB and R v Osborne, the appellant should have been acquitted of these counts.

1. Consistently with what I have said above, I reject these submissions. Again, as I have already said, R v DWB and R v Osborne were very different cases from the present.  As those decisions show, the complainants in those cases were unable to differentiate between offending that occurred over lengthy periods of years where they could not even give evidence as to what occurred on the relevant first occasion.  No such difficulties exist with HL’s evidence in relation to Counts 1 to 3.

1. The same may be said in respect of Counts 7 and 8.  HL’s evidence was both specific and particular in relation to Counts 7 and 8.  Asked why she recalled the first occasion she went to the Box Hill flat, HL said that she recalled it because it was ‘the most horrific one’, it was the first time she had had sexual intercourse.  In her evidence, HL gave a detailed description of the events constituting Counts 7 and 8, including being given five dollars when it was all over.

1. Count 9 was the first occasion where the appellant had sexual intercourse with HL at the second Box Hill premises.  In her evidence, HL gave detailed evidence of the acts constituting this count.  Like the other counts, it was particularised within a relatively confined period having regard to the amount of time that had elapsed between the offending and trial.

1. Counts 11 and 12 relate to the first occasion involving BA at the family home in Donvale.  BA gave detailed evidence of the acts constituting Counts 11 and 12 having taken place in 1969/1970. Like the other counts to which I have referred, it could not be said that the particulars of it were insufficient fairly to indicate the case the appellant was required to meet.

1. Counts 13 and 14 related to the first occasion the assaults on BA increased to the appellant placing BA’s hand on his penis to masturbate him to ejaculation and the appellant digitally penetrating BA’s vagina.  Like the evidence BA gave in respect of the acts constituting Counts 11 and 12, BA gave detailed evidence concerning the acts constituting Counts 13 and 14.  BA also said that this further occasion took place within a matter of weeks of the first occasion.  Like the counts I have already dealt with, in my view there was nothing unsafe or unsatisfactory about a conviction in respect of these counts – either based upon any contention that there was an inadequacy of particulars or for any other reason.

1. Count 22 related to the first occasion the appellant had sexual intercourse with BA at the second Box Hill premises.  Again, like the earlier counts, BA gave detailed evidence of the acts constituting this count.  As with the other counts to which I have already made reference, the appellant’s complaints in respect of Count 22 must be rejected.

1. It follows that ground 1 must be rejected.

Ground 2

1. Immediately after the luncheon adjournment on day four of the trial, the trial judge asked the appellant’s counsel to speak to the appellant.  His Honour said:

It’s been reported to me over the luncheon that three jurors were having lunch and that [the appellant] came and sat at a table near to them when apparently, in their understanding, it seems that there were other less near tables available.  It’s been brought to my attention, and I don’t think that should happen.  I think [the appellant] should clearly understand that on no occasion and at no time should he ever place himself within any proximity to the jurors.  Indeed, I think it would be far more preferable if he went into a restaurant or a sandwich bar or the like where there were jurors, he immediately went somewhere else.  I think it’s only commonsense, and I’m sure that he would have meant nothing by it, and it was one of those unhappy events that ought not to have happened, but I certainly don’t want a repeat of it.

1. Subsequently, counsel for the appellant advised the trial judge that the appellant had not realised that the people he sat down next to were members of the jury.  Counsel then asked for clarification about what the jury had said and his Honour said:

It was their apprehension that those other tables weren’t as close as the table that [the appellant] had chosen to sit at.  That was my understanding of it.  There was no inference that he’d chosen to, as it were, sit close by them in order to embarrass or upset them.

1. Notwithstanding what his Honour said, counsel for the appellant then made an application for the jury to be discharged on the basis that, for the incident to have been brought to his Honour’s attention, the relevant jurors ‘may be left with a feeling that it was done deliberately, either with some attempt to interfere or intimidate the jurors’.  His Honour then reminded counsel that he had, as part of a standard form direction, immediately after empanelment, said to the jury that if anything occurred during the course of the trial that troubled or worried them, they should not hesitate to let him know.

1. Ultimately, the learned trial judge determined not to discharge the jury.  Instead, his Honour delivered a direction to the jury which included the following:

Just one final thing, Madam Forelady, members of the jury, you’ll recall in opening the trial to you that I particularly urged caution about having conversations and obviously bumping into people around the courts and the court precincts.  That kind of thing can and does happen which is obviously the reason why I urged caution about where you travel and where you have conversations and I understand that yesterday lunch time some jurors recognised [the appellant] as having lunch in the same restaurant or sandwich bar as they did.

Now, there’s nothing untoward in that.  That’s just the kind of thing that can and does happen, given the fact that we’re in court here and people obviously have to have lunch and so those things can and do happen and that’s really why I urge caution about where you talk about things and it’s obviously best to just retain the conversations or have the conversations between yourselves in the jury room, that way you can avoid any problems arising.  So I would ask you, and indeed it’s a direction, that you draw no adverse inference against [the appellant], it’s just one of those things that can happen and, obviously, everybody needs to be vigilant to ensure that it doesn’t happen and I would just ask you to bear that in mind and with the final reminder, obviously, if you have all your conversations about the case between yourselves and in the jury room, then no harm can be done.

1. Whether a jury is to be discharged as a result of something that has occurred during a trial is, of course, a matter of discretion.  A jury should not be discharged unless there is a high degree of necessity.[13]

   [13]R v Boland [1974] VR 849, 866 and Crofts v The Queen (1996) 186 CLR 427.

1. In Webb v The Queen,[14] the High Court held that the test to be applied for determining whether an irregular incident involving a juror warranted the discharge of a juror or, in some cases, the jury, is whether the incident was such that, notwithstanding the warning of the trial judge, the incident gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury had not discharged, or would not discharge, their function impartially.[15]

   [14](1994) 181 CLR 41.

   [15]Ibid, 53.

1. In R v Matthews,[16] Callaway JA[17] reviewed the authorities, including Webb v The Queen, and held that the test to be applied was ‘still whether there is a high degree of need, but a reasonable apprehension of bias is one of the circumstances that constitutes a high degree of need’.[18]

   [16][1999] 1 VR 534.

   [17]With whom Kenny and Buchanan JJA agreed.

   [18]See further R v Holt and Merriman (1996) 87 A Crim R 82, 86.

1. Neither Webb v The Queen nor R v Matthews was referred to his Honour by counsel in their submissions on the discharge application.  After submissions, his Honour indicated that he would consider the application overnight, saying that he thought it would be extremely unlikely that he would accede to it, given:

The combination of things that I said to the jury in opening;  that is, that they need to be vigilant and careful what happens in and around the Court and particularly, also, that they need to bring to the attention of [my Tipstaff] anything that concerns them and it seems to me that what they’ve done is simply consistent with what they were asked to do as a normal part of any jury trial and for that reason my inclination is to not uphold the application although I’ll give further consideration to it overnight.

1. The next morning, his Honour said:

Now, also with respect to the matter that arose yesterday, I’ve been thinking about that overnight, what I jotted down is I think the circumstances required for the discharge of the jury haven’t arise (sic).  I think the high degree of necessity that’s referred to in the authorities I don’t feel has been established on the material before me and I don’t propose to further inquire of the jury as to the circumstances.

I’m satisfied given the assurance from [the appellant’s counsel] that it was an inadvertence by [the appellant], these things can and do happen and what I thought appropriate in the circumstances is to tell the jury the following:  To say to recall that what I told them in opening about being careful about having conversations and of course bumping into people in and around the courts or the precincts surrounding the courts;  that I understand that yesterday lunch time jurors recognised [the appellant] who was having lunch and sitting near to a table of comprising some jurors;  that there’s nothing untoward in that, just the kind of thing that can happen and hence the caution that I advised they were to employ with regard to their conversations and having them in the jury room amongst themselves and that they’re to draw no adverse inference against [the appellant], it’s just one of those things that can happen given the layout of the circling (sic) the court and the restaurants nearby and they all need to be vigilant and remember those things and keep the discussions amongst themselves and in the jury room.  Any issues about that?

1. Immediately following his Honour’s question as to whether there were any issues, both counsel responded in the negative.

1. The appellant submits, in relation to his application to discharge the jury, that ‘the language used by the learned trial judge … suggests that he did not consider apprehended bias at all’.  It is then submitted that this failure constituted an error in his Honour’s exercise of discretion in refusing to discharge the jury. Accordingly, it is then submitted that this Court is not constrained by any presumption in favour of the correctness of his Honour’s decision.  I reject these submissions.  First, there is no reason to suppose that his Honour was not aware of, or turned his mind to, the issue of apprehended bias and the decisions of Webb v The Queen[19] and R v Matthews.[20]

   [19](1994) 181 CLR 41.

   [20][1999] 1 VR 534.

1. Secondly, his Honour’s clarification referred to above that there was no inference that the appellant had chosen to sit close to the jurors in order to embarrass or upset them suggests that issues of apprehended bias were at the forefront of his Honour’s mind during the course of discussion concerning the lunchtime episode.  Thirdly, the fact that experienced counsel did not take the trouble to raise the authorities to which I have referred with his Honour suggests that no-one was in any doubt that his Honour knew and was capable of applying what were (and are) well-known authorities in this area.

1. Fourthly, it could not, in any event, have been concluded that the relevant episode (or the reporting of it to his Honour) gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the relevant jurors (or the jury) would or might not discharge their task impartially.  Further, even if the appellant could establish some error in the exercise of the learned trial judge’s discretion, I can see no basis for making any different decision from that made by his Honour: in my view, neither the circumstances to which I have referred nor the reporting of them by the jury or jurors would have given rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that any juror would or might not discharge his or her task impartially. Further, there was no high degree of need to discharge the jury.

1. It follows that ground 2 must be rejected.

Ground 3

1. In ground 3 it is asserted that the prosecutor, when cross-examining the appellant, referred to the appellant’s Filipino wife as a ‘mail order bride’.  Complaint is then made concerning the trial judge’s failure to discharge the jury following this cross-examination.

1. In the appellant’s written case, it is submitted:

The reference to the appellant having a ‘mail order bride’ was highly prejudicial.  It was a remark calculated to cause the jury to think ill of the appellant and which could easily have been taken by a juror as meaning the appellant was a sexual deviant and/or had difficulty in finding sexual partners.  Either or both inferences could be used to reason (improperly) that the appellant was thus more likely to have interfered sexually with his sisters.

1. To gratuitously refer to someone as a ‘mail order bride’ would be highly improper and objectionable.  In appropriate circumstances, it might lead to the discharge of a jury or the overturning of a verdict (or verdicts) of guilt.  However, that is not what occurred in this case (that is, there was no such gratuitous reference).

1. The appellant gave evidence-in-chief denying all of the facts that constituted the counts the subject of the presentment.  Additionally, he gave evidence-in-chief attempting to explain why he brought forward his trip to the Philippines after being interviewed by the police, and also why he left the Philippines in an unplanned trip to the United Kingdom.  I have already set out some of the appellant’s evidence on this issue.

1. In cross-examination, the appellant was asked and answered the following questions:

Let’s just deal with the sequence of it.  You realign your booking from 9 July to the 28^th, you’ve seen those departure cards, 28 July – sorry, 28 August ‘03, you’re going to the Philippines for 12 days.  Sorry, 28 June ‘03, 12 days to the Philippines, tick the section Australian resident departing temporarily?---I agree with that, yes.

At that time, that was your intent, you say, was it?---It was, yes.

But you changed your mind in the Philippines?---Yes.

Just so we’re clear, you assert the change of mind was brought on by this blue of sorts you had with E at the cinema, where you’d just left her at the picture theatre?---Yes, sir, it was.

Then you’ve just run off to the travel agent and said, ‘Well, I’m going off to Manchester’.  That’s how it happened, was it?---That’s exactly what happened, yes.

I want to suggest to you this allegation involving two of your sisters was uppermost in your mind in your decision, you made a deliberate decision to go to Britain, to stay away from where your troubles were?---Not at all, no.

Well, you had no one to go to in Britain, did you?---No, I didn’t.

Yes, and you lived in a park for a period of time when you arrived there, didn’t you?---In a form, yes, yeah, I did.

Well, not in a form, that’s what you’ve previously said, isn’t it?---No, it was the banks of the River Avon, that’s what I previously said.

Yes?---Yes.

Yes, so it’s – you’d really lost it, hadn’t you?  I mean, you’d run to nothing really, haven’t you?  Everything – all your roots were in Australia and you’ve run away to the banks of the Avon River.  Was that in Manchester?---No, that was in Evesham, Worcestershire.

Worcestershire.  How long were you sleeping out on the banks?---Well, I was in a car, but it was ten days to two weeks.

So you didn’t have too much money in your pocket from the sounds of it?

---No, I had money, but there’s no accommodation available and that was why I had to buy a car.

I see, and it seems, in terms of family or friends, you really didn’t have any there at all, did you, you had to go to square one?---That’s – that’s fair enough, yes.

Well, it’s bizarre, I suggest to you, sir;  your behaviour, it’s bizarre in the extreme.  Would you accept that as a fair summation of it?---I’ve already acknowledged that.  I accept that, yes.

It’s not about you having a falling out with some mail order bride or whatever E was at the time?---I resent that, that’s not fair.

1. Objection was then taken;  the cross-examination went on for three more questions and then counsel for the appellant told his Honour that he had a matter to raise in the absence of the jury.  In the absence of the jury, application was made to discharge the jury on the basis of the last question extracted above.  His Honour heard the application and rejected it.  His Honour said that in the circumstances, the question was ‘within the rubric of entirely appropriate cross-examination’.

1. In my view, there was no error in not acceding to the appellant’s application to discharge the jury.  Far from asserting that the appellant’s wife was a ‘mail order bride’, the point being made in cross-examination was that it was surprising (if not bizarre) that the appellant would leave his wife, to whom he would obviously be attached, unless he was seeking to avoid prosecution.  Whilst the use of the expression ‘mail order bride’ in the cross-examination may have been infelicitous, it was not in any way calculated to cause the jury to think ill of the plaintiff in the way asserted by the appellant.  Ground 3 is without merit, whether considered alone or in conjunction with ground 2.

1. It follows that ground 3 must be rejected.

Conclusion

1. The appeal must be dismissed.

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