Nelson (a pseudonym) v The King

[2025] VSCA 226

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0096

DOUGLAS NELSON (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the risk of identifying the alleged victim of a sexual offence, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	NIALL CJ, PRIEST and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2025
DATE OF JUDGMENT:	17 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 226
JUDGMENT APPEALED FROM:	DPP v Nelson (a pseudonym) [2024] VCC 628 (Judge Cahill)

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CRIMINAL LAW – Appeal – Conviction – Incest and other sexual offending against step-daughters and another child under 16 – Prosecution failed to obtain alleged post-offence call charge records of communications between the applicant and step-daughters – Whether duty of disclosure required prosecution to obtain the records for applicant’s benefit – No duty on prosecution to obtain evidence not in its possession – Whether informant capable of being cross-examined on call charge records – Document not the informant’s so cross-examination not permitted – Prosecution did not call stepson to give evidence or obtain a statement – Whether trial judge obliged to give a direction under s 43 of the Jury Direction Act 2015 – No direction required – Whether generality of tendency evidence deprived it of significant probative value – Tendency evidence admissible – Leave to appeal refused.

Ho v The King [2023] NSWCCA 245; AJ v The Queen (2011) 32 VR 614 applied; Solis (a pseudonym) v The Queen [2018] VSCA 275 considered; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56 applied.

CRIMINAL LAW – Appeal – Sentence – Incest and other sexual offending against child under 16 – Whether orders for cumulation offended against principle of totality – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant		Mr M Habib and Ms M Cananzi
Respondent		Ms E Ruddle KC with Ms E Allan
Solicitors
Applicant	Brooks Lawyers
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
PRIEST JA
LYONS JA:

Introduction

1. On 9 February 2024, a jury empanelled in the County Court to try him found the applicant guilty of a number of sexual offences against three complainants, ‘SB’ and ‘CB’ — referred to throughout the trial as ‘the sisters’ — and ‘AF’.  SB and CB were the applicant’s step-daughters — he having married their mother, ‘BS’, in 2002 — and AF was BS’s younger step-sister.

2. Following a plea in mitigation, the trial judge sentenced the applicant to a total effective sentence of 12 years’ imprisonment, with a non-parole period of eight years and six months, in accordance with the following table:

Charge	Comp	Offence		Sentence	Cumulation
1	AF	Indecent act with child under 16[2]		12 months	Nil
2	AF	Sexual penetration of child under 16[3]		4 years	15 months
5	SB	Indecent act with child under 16[4]		12 months	3 months
6	SB	Indecent act with child under 16[5]		15 months	3 months
7	SB	Indecent act with child under 16[6]		12 months	2 months
8	CB	Indecent act with child under 16[7]		12 months	2 months
9	CB	Indecent act with child under 16[8]		12 months	1 month
10	CB	Indecent act with child under 16[9]		15 months	3 months
11	CB	Incest[10]		6½ years	Base
12	CB	Incest[11]		6½ years	12 months
13	CB	Indecent act with child under 16[12]		18 months	3 months
14	CB	Indecent act with child under 16[13]		12 months	Nil
15	CB	Incest[14]		6½ years	12 months
16	CB	Indecent act with child under 16[15]		18 months	2 months
17	CB	Indecent act with child under 16[16]		21 months	4 months
18	CB	Indecent act with child under 16[17]		21 months	4 months
Total effective sentence			12 years’ imprisonment
Non-parole period			8 years and 6 months
Other relevant orders			Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life. Pursuant to s 6F Sentencing Act 1991 (Vic), sentenced as a serious sexual offender in respect of charges 5 to 18.

[2]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 47.  The maximum penalty is 10 years’ imprisonment.

[3]Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000, s 45(1). The maximum penalty is 15 years’ imprisonment.

[4]Crimes Act 1958, as amended by the Crimes Act (Sexual Offences) Act 2006, s 47(1). The maximum penalty is 10 years’ imprisonment.

[5]Ibid.

[6]Ibid.

[7]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 47. The maximum penalty is 10 years’ imprisonment.

[8]Ibid.

[9]Ibid.

[10]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 44(1). The maximum penalty is 25 years’ imprisonment.

[11]Ibid.

[12]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 47. The maximum penalty is 10 years’ imprisonment.

[13]Crimes Act 1958, as amended by the Crimes Act (Sexual Offences) Act 2006, s 47(1). The maximum penalty is 10 years’ imprisonment.

[14]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 44(1). The maximum penalty is 25 years’ imprisonment.

[15]Crimes Act 1958, as amended by the Crimes Act (Sexual Offences) Act 2006, s 47(1). The maximum penalty is 10 years’ imprisonment.

[16]Ibid.

[17]Ibid.

1. The applicant seeks leave to appeal both against conviction and sentence.

2. With respect to conviction, the applicant relies on six grounds:

   1A substantial miscarriage of justice occurred in the manner that the prosecution was conducted, which resulted in irreparable prejudice to the Applicant.

   2A substantial miscarriage of justice occurred when the learned judge prohibited defence counsel from putting documents to the Informant and prohibiting cross-examination of the Informant in respect of those documents, forcing defence to open its case.

   3A substantial miscarriage of justice occurred when the learned trial judge directed the jury to disregard the criticisms of the prosecution case in respect of the conduct of the investigation.

   4The learned trial judge erred at law in refusing to give a direction pursuant to s 43 in respect of the prosecution’s failure to call a witness.

   5A substantial miscarriage of justice occurred as a result of an aggregate of the errors and matters relied upon in grounds 1, 2, 3 and 4.

   6A substantial miscarriage of justice occurred due to the admission of the evidence of the complainant [AF] as tendency evidence in relation to the offending against the sisters and evidence of the sisters as tendency evidence in relation to [AF].

3. As to sentence, the applicant relies on a single ground:

   1The learned sentencing judge erred in making orders for cumulation which offended against the principle of totality, resulting in a total effective sentence which is manifestly excessive in all the circumstances.

4. In our view, none of the applicant’s grounds has substance.  For the reasons that follow, we would refuse both applications for leave to appeal.

Background

1. By way of background, the applicant and BS met in 2000.  They were married between 2002 and 2018.  BS had three daughters from a previous relationship, two of whom were SB[18] and CB.[19]  In 2002, the applicant and BS had a son, ‘BD’.[20]  As we have said, BS also had a step-sister, AF.[21]

   [18]Born in October 1999.

   [19]Born in April 1998.

   [20]Born in April 2002.

   [21]Born in June 1990.

2. The offending against AF (charges 1 and 2) involved a single incident, which was alleged to have occurred between June 2001 and June 2002,[22] when AF was aged between 10 and 12; the offending against SB (charges 5, 6 and 7), involved three incidents, alleged to have occurred between January 2013 and October 2015, when SB was aged between 12 and 16; and the offending against CB (charges 8 to 18) involved eight incidents, alleged to have occurred between April 2006 and April 2014, when CB was aged between eight and 16.

   [22]The jury found the applicant not guilty of charges 3 and 4 — two charges of indecent act with a child under 16 — which were alleged to have occurred respectively between June 2003 and June 2005, and April 2006 and April 2009.

3. BS and the applicant had an acrimonious separation in 2018.  CB then confronted the applicant by text message about his alleged offending.  Later, in September of 2019, CB reported the alleged offending to police and provided a statement on 3 March 2020.  Thereafter, on 29 April 2020 and 22 September 2020 respectively, SB and AF also provided statements to police.

4. In July 2020, police conducted a record of interview with the applicant.  They charged him in January 2021.  A contested committal was held over the course of two days in May 2022.  Subsequently, the applicant stood trial between 24 January and 9 February 2024.

The alleged offending

1. It is necessary to provide a brief summary of the alleged offending.

AF: charges 1 and 2

1. When AF, born in 1990, was aged between 10 and 12 years, the applicant allegedly sexually offended against her on an occasion when she was staying at the applicant’s and BS’s family home.  AF and the applicant had been playing ‘Nintendo’ in the lounge room, when she fell asleep on a futon couch.  She woke to find the applicant’s hand inside her underwear touching the outside of her vagina (charge 1 – indecent act with a child under 16).  AF then felt the applicant’s fingers inside the lips of her vagina (charge 2 – sexual penetration of a child under 16).

SB: charges 5, 6 and 7

1. The applicant allegedly sexually offended against SB, born in 1999, on three occasions, twice in the family home and once at the local hotel.

2. Shortly after SB turned 14, the applicant came into her bedroom.  He had SB straddle his lap while he rocked her back and forth and rubbed his penis against her.  This activity occurred over the applicant’s and SB’s clothing (charge 5 – indecent act with a child under 16).

3. SB was between 14 and 16 years old, the applicant went into the bathroom while she was having a shower.  He grabbed her towel when she reached for it and told her he would dry her.  The applicant then dried her with the towel, rubbing her breasts and between her legs on her vagina (charge 6 – indecent act with a child under 16).

4. On another occasion, when the family was having dinner at a local hotel, the applicant was seated at a table in a booth with SB.  She asked the applicant to move so she could get out.  He refused.  As SB then climbed under the table, the applicant reached underneath and touched her buttocks and vagina with his hand (charge 7 – indecent act with a child under 16).

1. SB gave evidence that there was another occasion, when tickling her on the couch, the applicant touched her on the buttocks and vagina (uncharged act).

CB: charges 8, 9 and 10 (first incident)

1. It was alleged that the applicant sexually offended against CB, born in 1998, on eight occasions.

2. The first alleged occasion was when CB was in Year 3.  The applicant, naked, got into the shower with CB and her younger sister, SB.  He washed CB with soap, touching her vagina (charge 8 – indecent act with a child under 16).  After the shower, while he dried her, the applicant wiped CB’s vagina with a towel (charge 9 – indecent act with a child under 16).  Once he dried her, the applicant squatted behind CB, put his penis between her legs and rubbed it on her vagina (charge 10 – indecent act with a child under 16).

3. CB’s evidence was that the applicant often showered her.  Many times after a shower he dried her, touching her vagina, and rubbing his penis against her vagina (uncharged acts).  CB said that when she tried to walk away the applicant would call her back.

CB: charge 11 (second incident)

1. A few months after the first ‘shower’ incident, the applicant and CB were watching television lying on recliners in the ‘back lounge [which] was for the kids’.  The applicant put strawberry topping on his penis and told her to lick it off.  While she did so the applicant put his penis in her mouth (charge 11 – incest).

CB: charge 12 (third incident)

1. Another time, when the applicant and CB were watching television, the applicant pulled down CB’s pyjama bottoms, put his tongue into her vagina and licked back and forth (charge 12 – incest).  Both SB and BD were in bed when this occurred.

CB: charge 13 (fourth incident)

1. On another occasion, when her mother was not at home, the applicant called CB into the shed.  He had her stand on an upended bucket; stood behind her; pulled her pants down; and thrust his penis, back and forth, between her legs and over her vagina, before ejaculating on the shed floor (charge 13 – indecent act with a child under 16).

2. CB’s evidence was that this activity occurred many other times between Year 3 and Year 6 of primary school (uncharged acts).

CB: charges 14 and 15 (fifth incident)

1. At the end of 2009, when CB was 11 years old, she and the applicant were staying overnight at his parents’ home after attending a school ‘orientation’.  After CB had gone to bed, the applicant went into the bedroom and got into the bed beside her.  He then touched her breasts (charge 14 – indecent act with a child under 16) and sucked on her nipple (uncharged act) under her pyjamas.  The applicant then inserted a finger into CB’s vagina and moved it in and out (charge 15 – incest).  CB gave evidence that the applicant tried to insert a second finger, which hurt.

CB: charge 16 (sixth incident)

1. On an occasion after visiting the applicant’s parents, the applicant stopped his car on a country road.  He pulled down CB’s top and sucked her nipple (charge 16 – indecent act with a child under 16).  CB had told the applicant she did not want to do it, but the applicant told her that he would not drive her to her friends’ property if she did not.  The applicant stopped what he was doing when a car came down the road and the occupants asked if they were alright.

2. CB’s evidence was that this activity occurred possibly 20 to 30 other times (uncharged acts).

CB: charge 17 (seventh incident)

1. Another time, when her mother was not at home, CB was with the applicant in his bedroom.  The applicant pulled down his underwear, put CB’s hand on his penis and had her masturbate him (charge 17 – indecent act with a child under 16).  They had only just finished what they were doing when the applicant’s parents unexpectedly walked in.  CB gave evidence that the applicant was very persuasive.  He would say, ‘if you don’t do this then … you won’t get to do this’.  She said, ‘if I didn’t cooperate it was like a punishment’.

CB: charge 18 (final incident)

1. The final incident occurred when the applicant went into CB’s bedroom, pulled back her bed covers and touched her leg.  CB pretended to be asleep.  The applicant masturbated and ejaculated on her leg (charge 18 – indecent act with a child under 16).

Subsequent events

1. On 27 September 2018, during the applicant’s acrimonious separation from his wife, CB confronted the applicant in a text message about his abuse of her, and threatened to report him to police.  As we have mentioned, she in fact reported the applicant’s alleged offending to police in September 2019, and made a statement of complaint on 3 March 2020.  SB provided a statement of complaint to police the following month, on 29 April 2020; and AF provided a statement later in the year, on 22 September 2020.

2. Police interviewed the applicant on 29 July 2020.  He denied his stepchildren’s allegations, suggesting they had lied because they were resentful over his separation from their mother.  The applicant maintained that position at trial with respect to SB and CB, and adopted a similar position with respect to AF’s allegations.  It was the applicant’s case that each of them had given false evidence to punish him for what they perceived to be his poor treatment of their mother and sister.

Conviction ground 1: Call charge records and other matters

Background

1. So as to understand the issues raised by grounds 1 to 5, it is necessary to provide some further background.

2. During his record of interview on 29 July 2020, the applicant told police that SB and CB had significant ongoing contact with him following his separation from their mother and in the immediate lead-up to their complaints to police.  SB and CB were then cross‑examined in the course of the applicant’s committal proceeding in May 2022 as to the nature and frequency of their contact with the applicant during that period.  Both denied frequent contact.

3. In support of the first proposed ground of appeal, in the applicant’s written case counsel submitted that it was ‘apparent’ that the interaction between the two sisters and the applicant during that period ‘was a live issue as to their credit’.

4. There is no dispute that, in November 2023, the applicant’s solicitors wrote to the Office of Public Prosecutions (‘OPP’) asking that the Informant obtain call charge records (‘CCRs’) of telephone communications between the applicant and the sisters in the period from 1 May 2018 to 30 September 2018.  The Informant did not, however, comply with that request.

5. As a result, on 22 January 2024, the applicant’s solicitors caused a subpoena to be issued, seeking production of the CCRs.  In discussion before the trial judge, defence counsel suggested that a request to the telecommunications providers by the Informant might be a more efficient way of obtaining the CCRs.

6. On 29 January 2024, after the jury had been empanelled, the subpoena was returned and the CCRs were released to the parties.  In the days following, the CCRs were examined by the applicant’s solicitors.  Their examination revealed that there were hundreds of communications between the sisters and the applicant in the relevant period, which, according to the applicant’s counsel, stood in ‘stark contrast’ to SB’s evidence at committal that there were ‘probably closer to two’ messages that passed between her and the applicant.

7. By 6 February 2024, when the Informant, Detective Surrey Hunter, was to give evidence in the trial, neither the trial prosecutor, the instructor for the OPP nor the Informant had examined the CCRs in order to determine the frequency of contact between the applicant and the sisters.  The trial prosecutor refused to agree to any facts concerning the CCRs, and objected to defence counsel putting the frequency of contact to the Informant based on the CCRs.  Furthermore, in the course of his cross-examination by defence counsel, the Informant revealed that, following the initial request that he obtain the CCRs, the OPP had advised him that he was not to access those records ‘on behalf of defence’.

8. In the result, the applicant went into evidence.  The applicant’s solicitor testified that, upon receipt of the CCRs, an employee of his office ‘checked’ them for the period between May and September 2018.  In that period, there were 485 ‘instances of a communication’ between SB and the applicant; and there were 409 between CB and the applicant.  This evidence was not the subject of any challenge by the prosecutor, who refrained from cross-examination.

9. Based on the evidence of apparent ongoing communication revealed by the CCRs, the prosecutor requested — and the judge ultimately gave — a direction under s 54H of the Jury Directions Act 2015 (‘JDA’).[23]

   [23]Section 54H concerns directions that a judge must give to the jury if ‘the trial judge considers that in the trial there is likely to be evidence of a post-offence relationship’. Among other things, s 54H(5)(c) requires the judge to inform the jury that experience shows that there may be good reasons why a person who is subjected to a sexual offence may continue a relationship with the person who subjected them to the offence, or otherwise continue to communicate with that person.

The applicant’s submissions

1. In the written case, counsel for the applicant submitted that the conduct of the prosecution with respect to the CCRs caused substantial unfairness to the applicant.  The issue of the sisters’ ongoing contact with the applicant had been apparent since the applicant’s record of interview in July 2020, yet no efforts were made to obtain what may have been exculpatory evidence (or evidence relevant to that issue).  Furthermore, on the apparent direction and advice of the OPP, the Informant had failed to act with ‘fairness and detachment’.  The applicant’s counsel submitted that the prosecution’s conduct of the trial, including the disregard of its obligation to disclose and to call evidence favourable and unfavourable to its case, caused unfairness to the applicant giving rise to a substantial miscarriage of justice.

2. Counsel for the applicant also contended in writing that the prosecutor’s request for a direction under s 54H of the JDA ‘underscored the unfairness in the matter’. The prosecutor’s request for a direction came on the heels of defence counsel’s cross‑examination of CB with respect to her ongoing relationship with the applicant. And it came in circumstances where the prosecution was content to rely on CB’s evidence of the relationship, continuing ‘to disavow any responsibility to assist in illuminating the issues that arose due to that ongoing relationship’.

3. Additionally, in a somewhat excursive written submission, counsel for the applicant submitted that an impermissible question and answer in SB’s re-examination — after it had been put to SB in cross-examination that she had been lying — ‘further underlined’ the ‘unfairness’.  The impugned question and answer were:

   Now, the last thing that you were asked in cross-examination today was that you would say, or you answered that it was incorrect at any suggestion that your account was false in terms of what you say [the applicant] had done.  What do you say to the suggestion if one is made, that you’re making this up?---Um, ah, it’s hurtful to hear after going through this for so long and I feel like we’re finally not free from it ‘cause it’s not something you stop thinking about but – sorry.  Can I take a break?

4. In oral submissions, counsel leading for the applicant in this Court first submitted that the informant ‘should have obtained the [CCRs]’.  When asked by the Court to provide authority to support that submission, counsel submitted that he ‘wouldn’t rely on any authority at this stage’, since the failure to obtain the CCRs was not the ‘error’ he was ‘going to rely on’ (albeit that later in his oral arguments he submitted that the ‘criticism’ of the prosecution’s failure to obtain the CCRs ‘remains’).  He submitted:[24]

   The error or the issue which the applicant seeks to raise is not the obtaining of the evidence, is not the failure to disclose and is not the failure to lead the evidence in the trial itself.  It is the failure of the Crown to engage with the evidence throughout the trial.

   [24]Emphasis added.

5. When asked by the Court to provide authority for the proposition that the prosecution was required to ‘engage’ with the evidence of the CCRs, counsel advanced none.  Counsel submitted that the prosecution had an obligation ‘to call and lead all evidence that is exculpatory and inculpatory’.  Asked by the Court to explain how a substantial miscarriage of justice could have resulted in circumstances where the evidence of the CCRs was put before the jury unchallenged, counsel submitted that the evidence was ‘devalued’ and lost ‘weight’ because it was not introduced by the ‘investigator of the matter’.  Counsel submitted that the applicant had sought to lead the evidence through the informant and ‘was unable to’, so that he ‘had to open his case, highlighting, if it might be put that way, that the applicant himself did not give evidence and calling evidence’.  He said that

   the contention on behalf of the applicant is that whilst it was before the jury, the manner in which it came before the jury meant that it did not carry with it the weight that it otherwise would.

6. Counsel ultimately submitted that the essence of the first ground ‘is that the trial counsel for the Crown should have in some way, shape or form engaged with that evidence prior to the closing of the case’.[25]  The applicant’s counsel had difficulty, however, in providing any coherent explanation of what he meant when he submitted that there had been a failure by the prosecution to ‘engage’ with the evidence.

   [25]Emphasis added.

The respondent’s submissions

1. Counsel for the respondent submitted that it is not part of the prosecution’s duty of disclosure to actively seek out material not in its possession so it can be made available to the defence.[26]  The pre-condition for prosecution disclosure is that the material is in the possession of, or the information is known by, the prosecution.[27]  Neither the police nor the prosecution had the CCRs in their possession (or information as to the contents of those records) before they were released to both parties by the Court on 29 January 2024.  Hence, counsel submitted, the pre-condition giving rise to the prosecution’s duty of disclosure simply did not arise in the circumstances.

   [26]Counsel cited Ho v The King [2023] NSWCCA 245, [88]–[89] (Wilson J, Beech-Jones CJ at CL and RA Hulme AJ agreeing) (‘Ho’).

   [27]Counsel cited R v Farquharson (2009) 26 VR 410, 464 [211] (Warren CJ, Nettle and Redlich JJA) (‘Farquharson’).

2. The respondent’s counsel submitted that the prosecutor’s duty to present all available, cogent and admissible evidence did not require him to adduce evidence of the CCRs in the prosecution case.  Contrary to the applicant’s submission, the CCRs did not tend to exculpate the applicant, in the sense that they did not tend to show he did not, or could not, have committed the sexual offences alleged.  The records did no more than show the timing, type and number of communications between the applicant and the sisters in the period between 1 May and 30 September 2018.

3. Further, no unfairness arose from the judge being requested to give a direction under s 54H of the JDA. In circumstances where there was evidence in the trial of a post-offence relationship between the applicant and SB and CB, the judge was obliged to give the mandated direction.

4. Finally, the respondent’s counsel submitted in writing that no unfairness was occasioned by the re-examination of SB.  Initially, defence counsel did not object to the impugned question.  When the judge noted that the answer to the question was ‘perhaps a little non-responsive’, and defence counsel belatedly objected to the line of questioning being pursued, the trial judge ultimately prevented the prosecutor from pursuing it.

Discussion and analysis

1. The first ground of appeal is completely without substance.

2. In Farquharson the Court observed:[28]

   It is axiomatic that there must be full disclosure in criminal trials.  The prosecution has a duty to disclose all relevant material.[29]  A failure of proper disclosure can result in a miscarriage of justice.[30]

   The precondition for prosecution disclosure is, of course, that the material is in the possession of, or the information is known by, the prosecution. …

   [28]Ibid 464 [210]–[211].

   [29]Cannon v Tahche (2002) 5 VR 317.

   [30]Mallard v R (2005) 224 CLR 125.

3. Subsequently, in Roberts, the Court described the prosecution’s duty of disclosure as follows:[31]

   It is now accepted that it is fundamental that there must be full disclosure in criminal trials.[32]   It is a ‘golden rule’.[33]   The duty is to disclose all relevant material of help to an accused.[34]   It is owed to the court, not the accused.[35]   It is ongoing.[36]  It includes, where appropriate, an obligation to make enquiries.[37]   It is imposed upon the Crown in its broadest sense.[38]   And a failure in its discharge can result in a miscarriage of justice.[39]

   [31]Roberts v The Queen (2020) 60 VR 431, 444 [56] (Osborn and T Forrest JJA and Taylor AJA) (citations as in original) (‘Roberts’).

   [32]As to the position as a matter of history see the judgment of Brooking J in Sobh v Police Force of Victoria [1994] 1 VR 41.

   [33]R v H and C [2004] 2 AC 134.

   [34]Cannon v Tahche (2002) 5 VR 317, 340–1 [58] (Winneke P, Charles and Chernov JJA).

   [35]Ibid.

   [36]It subsists even after the appellate process has been exhausted.  See R v Ward [1993] 1 WLR 619 (‘Ward’).

   [37]AJ v The Queen (2010) 32 VR 614, 620 [22] (Weinberg and Bongiorno JJA, Buchanan JA agreeing) (‘AJ’) citing R v Garofalo [1999] 2 VR 625, 637 (Ormiston JA).

   [38]R v Lucas [1973] VR 693; AJ v The Queen (2010) 32 VR 614.

   [39]Ward [1993] 1 WLR 619; Mallard v The Queen (2005) 224 CLR 125 (‘Mallard’); Grey v The Queen (2001) 75 ALJR 1708.

4. The observation that the prosecution’s duty of disclosure ‘includes, where appropriate, an obligation to make enquiries’, should not be misunderstood.  It is based on certain remarks made by Ormiston JA in Garofalo,[40] a case specifically concerned with the prosecution’s duty to disclose the prior convictions of witnesses.  In that case, the applicant was convicted at trial of attempting to obtain property by deception.  After the trial, it was revealed that the principal prosecution witness — whose credibility was essential to the prosecution case — had only weeks before the trial pleaded guilty to various charges of dishonesty and had a ‘bad record’ (including a significant number of prior convictions for offences of dishonesty for which he had been imprisoned).  Neither defence counsel nor prosecutor, or their respective instructing solicitors, were previously aware of the witness’s criminal record.  The applicant’s solicitors, and his counsel at trial, had made no request for the witness’s criminal history.  That history only became known after a notice of appeal had been filed.

   [40]R v Garofalo [1999] 2 VR 625 (‘Garofalo’).

5. Ormiston JA said that he could not accept that a prosecutor’s duty to disclose the prior convictions of prosecution witnesses was limited to situations where the accused makes a request to the prosecution to be informed of a prosecution witness’s previous convictions.[41]  Having carried out an extensive review of authority he observed that[42]

   at least for present purposes, the rule may be stated that, at the least, in trials on presentment or indictment, the prosecution should inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness’s credibility.  It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further.  Again for present purposes that level of enquiry must be seen as having been necessary, so that, without examining that issue further, the ignorance of both counsel and instructing solicitor was irrelevant in the present case.

   [41]Ibid 631 [55]–[56].

   [42]Ibid 637 [70]. (Emphasis added.)

6. Significantly, nothing in Garofalo suggests that — beyond making enquiries as to whether particular prosecution witnesses have prior convictions — the prosecution must, as part of its duty of disclosure, make enquiries to determine whether any evidence that might support an accused person’s case exists.  Quite clearly, the ‘rule’ in Garofalo is limited to prosecution witnesses’ prior convictions.  It applies only to proposed witnesses whose credibility may be in issue, and only if proof of a witness’s convictions may reasonably be seen as capable of affecting the witness’s credibility.  When the applicable duty of disclosure is engaged, it is irrelevant whether the trial prosecutor or instructing solicitor (or any other person directly engaged in the prosecution of the particular charge) is unaware of any relevant conviction.  The rule requires that the prosecution must make the necessary enquiries about a witness’s convictions on computer or otherwise, but the prosecution’s obligations go no further than that.

7. Garofalo was considered in Marwan.[43]  In that case, the applicant, who was charged with sexual intercourse without consent, unsuccessfully sought a stay of his trial.  There was no dispute that the applicant, a German national, and the complainant, a United Kingdom (‘UK’) citizen, had met at a nightclub in Sydney and engaged in consensual sexual activity in the nightclub’s vicinity.  The prosecution case was, however, that the complainant had withdrawn her consent, but the applicant continued sexual activity notwithstanding that withdrawal.  An ambulance officer who examined the complainant not long after the alleged non-consensual sexual activity noted that the complainant had been treated for anxiety and depression, but had been off prescribed medication for four months.  The defence requested the prosecution to obtain the complainant’s ‘mental health records’ from the UK.  Despite that request, the prosecution opted not to ask the complainant for those records, or for permission to request them, and did not attempt to obtain them from UK authorities.

   [43]Marwan v Director of Public Prosecutions [2019] NSWCCA 161 (‘Marwan’).

8. On an interlocutory appeal brought to challenge the trial judge’s refusal of a stay of proceedings, the applicant contended that the prosecution’s duty of disclosure extended to making inquiries about the matters recorded by the ambulance officer (as supported by other evidence).  The applicant’s submissions were directed to the likely forensic advantages of obtaining documents disclosing more details of what underlay the complainant’s earlier history of anxiety and depression, and what underlay the statement attributed to her that she had been ‘off medication’ for four months since travelling to Australia.  It was argued that such information might provide an alternative explanation for her apparent state of distress after the alleged non-consensual sexual intercourse.

9. Leeming JA (with whom RA Hulme and Adamson JJ agreed) observed:[44]

   The application involves a number of novel features.  No authority was relied in support of a duty to make inquiries with third parties where a temporary stay had in fact been granted pending those inquiries being carried out.  Nor did the parties direct the Court to a case where the nature of those inquiries involved (a) information located overseas or (b) sensitive personal information such as mental health records.  Further, while it was common ground that ‘in an appropriate case’ the ‘duty of disclosure’ extended to a positive obligation to make inquiries, that formulation in a real sense begs the question: is the present an ‘appropriate case’?

   [44]Ibid [20].

10. Later, Leeming JA said:[45]

    [45]Ibid [45]–[50].

    There is very little authority in support of the proposition that a prosecutor must do more and make inquiries with a view to obtaining information not presently in the prosecutor’s possession.

    True it is, as the applicant submitted, that it was said in R v Lipton^[[46]] at [81] that:

    The obligation to disclose includes, in an appropriate case, an obligation to make enquiries: AJ v R [2011] VSCA 215 (at [22]) per Weinberg and Bongiorno JJA (Buchanan JA agreeing).

    That statement was obiter, concerned an issue which did not arise in that case, and was unelaborated.  One member of the Court agreed, generally; the other expressly distanced himself from it.  The Victorian decision cited, AJ v R (2011) 32 VR 614; [2011] VSCA 215 is of the same character. I mean no criticism, but neither decision provides any assistance as to what is an ‘appropriate case’.

    The main example in the authorities of the duty extending to investigation or making inquiries concerns the disclosure of criminal convictions.  Thus in R v Garofalo [1999] 2 VR 625; [1998] VSCA 145 at [70] a rule was formulated that the Crown was to disclose the convictions of all proposed witnesses in trials on presentment or indictment whose credibility might be in issue, if proof of such convictions might reasonably be seen as capable of affecting the witness’s credibility. Such statements are of limited assistance here, where what is asserted is a duty to make inquiries concerning prima facie confidential information not in the possession of the prosecuting authorities.

    Further, the portions of the judgment in Garofalo immediately preceding and immediately following the formulation of the rule tend to point to the absence of the duty extending to a case such as the present.

    The immediately following sentence in Ormiston JA’s judgment was:

    It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further.

    [46]R v Lipton (2011) 82 NSWLR 123.

11. Marwan was applied in Ho, a case in which the applicant had been convicted at trial of sexual and physical assaults of his former wife.  Among other things, the applicant contended that the trial judge erred in refusing a stay of proceedings because the police investigation had been inadequate.  The applicant claimed that the ‘whole of the evidence’ pointed to fabrication by his former wife and their eldest son, intended to result in his imprisonment.  He asserted that there was material that the Crown had failed to investigate, and he pointed to six potential witnesses from whom he said the Crown had — in breach of its duty to him — failed to obtain statements.  Of particular relevance to the present case, the applicant referred to an alleged failure by the Crown to obtain and analyse telephone records.  He asserted that the Crown was obliged to ‘inspect the records’ with him and ‘examine’ him on the subject.

12. Wilson J (with whom Beech-Jones CJ at CL and RA Hulme AJ agreed) observed:[47]

    [47]Ho [2023] NSWCCA 245, [88]–[89] (Wilson J, Beech-Jones CJ at CL and RA Hulme AJ agreeing). (Emphasis added.)

    The obligation of the Crown in bringing an accused person to trial does not extend to a duty to investigate an accused person’s case on his or her behalf, or to present that case at trial.  The Crown has an obligation of fairness within the context of an adversarial system of criminal justice, but that does not mean that it is bound to pursue every matter said by an accused to be relevant to the subject of the trial, or to secure the attendance of every person nominated by the accused as a potential witness.  As the High Court said in Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19 at 120:

    It is […] a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged.

    The obligations on the Crown with respect to leading evidence and calling witnesses are well established, from decisions including Richardson; Whitehorn v The Queen 152 CLR 657; [1983] HCA 38; and The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38. In summary, the principles to be drawn from these and other authorities, noting the fundamental obligation of the Crown to treat an accused person fairly, are these:

    (a)  It is for the Crown and not the court to decide which witnesses the Crown will call in its case: Richardson at 119; Whitehorn at 663.

    (b)  That decision is to be made in conformity with the dictates of the obligation of fairness to the accused, and having regard to other material considerations, such as whether the evidence is necessary to the unfolding of the Crown case; whether the evidence is truthful and credible; and whether it is in the interests of justice to subject the evidence to cross-examination by the Crown: Richardson at 119.

    (c)  The Crown is not bound to call a witness, even an eye-witness, whose evidence is judged to be unreliable, untrustworthy or otherwise incapable of belief: Whitehorn at 674.

    (d) Criminally involved witnesses can be regarded prima facie as unreliable, and there is no principle of law that requires the Crown to call such a person in its case: Allchin v R; Skepevski v R [2019] NSWCCA 278 at [127].

    (e)  A judgment not to call a witness must be based on identifiable features, including the assessment made of the witness after a conference with that person where appropriate: Whitehorn at 664; R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [49] and [102].

    (f)  Tactical considerations can play no part in the decision to call a witness: Whitehorn at 664.

    (g)  Where the Crown decides not to call a witness who has been nominated by the service of the brief of evidence as a Crown witness, the decision must be communicated to the accused at a reasonable time and the witness made available at trial to the accused: Whitehorn at 664.

    (h)  The reasons for the decision not to call the witness should be disclosed if sought: Whitehorn at 665.

    (i)   There is no authority for the proposition that the Crown has a duty to actively seek out material not in its possession so that the material might be made available to the accused: Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [45] to [50].

    (j)   Where a witness who might have been expected to be called by the Crown and to give evidence on a matter is not called, the jury may take the fact that there was no evidence from that witness into account when deciding whether the Crown has proved its case: Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27].

    (k) A decision of the prosecutor not to call a particular witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: Apostilides at 575.

1. In our view, the principles drawn from the authorities as enumerated by Wilson J — including that there is no authority for the proposition that the Crown has a duty to actively seek out material not in its possession so that the material might be made available to the accused — are uncontroversial.

2. After, setting out the general principles above, Wilson J continued:[48]

   Nothing in those principles suggests that the Crown has any obligation to investigate an accused’s case on his or her behalf, or to take over the burden of presenting that case to the jury.  It did not have that obligation or that burden with respect to the applicant at his trial.  As the trial judge surmised in dealing with the application for a temporary stay, there was no basis to conclude that the applicant’s trial would be anything other than fair.

   A temporary stay of prosecutions may be granted by a court, but only where there is reason to believe that the trial of the accused is likely to be unfair: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. To borrow from Gould v Director of Public Prosecutions (Cth) (1992) 359 ALR 142; [2018] NSWCCA 109 at [64]:

   In the present case, the applicant did not establish, or even assay the task of establishing, that a trial, absent production of the [evidence] sought, would be likely to be unfair, or even (if a lower standard could be sufficient) that there was a tangible risk that it would be unfair.

   On the material before this Court, including as it now does the record of the trial, no unfairness was occasioned to the applicant at his trial.  He had access to all known material evidence, and he was able to use that evidence, either in cross-examination of the complainant and other witnesses, or by calling witnesses or tendering documentary evidence.  Even without giving evidence himself, the accused advanced a substantial defence before the jury and the jury was able to assess the testimony of [the complainant] in the context of the whole.  He was not prejudiced or placed at any forensic disadvantage.  His Honour was correct to dismiss the application and no error of law has been established, much less an error that led to a miscarriage of justice.

   [48]Ibid [90]–[92]. (Emphasis added.)

3. The final case we should mention is AJ,[49] which was referred to by Leeming JA in Marwan.  AJ involved alleged sexual offending against a child.  In cross-examination at trial, the complainant denied sending a text message to the applicant’s de facto wife admitting that her allegation against him was false.  Defence counsel was not permitted to refer in cross-examination to the content of the text message.  Following the complainant’s denial, defence counsel did not attempt to take the matter further, and did not seek to prove the text message and its provenance.  Of some importance, another man had previously been tried for alleged sexual offences against the same complainant.  In that earlier trial, the complainant had denied sending a large number of video messages to the accused man.  In that trial, the prosecutor — who was also the prosecutor in the applicant’s trial — had openly conceded that the complainant’s denials were lies.  The prosecutor did not, however, alert defence counsel in the applicant’s trial to the circumstances of the earlier trial.

   [49]AJ (2011) 32 VR 614.

4. Setting aside the conviction in AJ, Weinberg and Bongiorno JJA (with whom Buchanan JA agreed) held that the failure of the prosecutor to alert defence counsel to the circumstances of the earlier trial — and, in particular, to the fact that she, the prosecutor, did not believe the complainant’s denials of having sent a very large number of text messages to the accused in that trial — ‘constituted a significant and most regrettable breach of her duty as a prosecutor’.[50]  Although, citing Garofalo, they also said that the ‘obligation to disclose includes, in an appropriate case, an obligation to make inquiries’,[51] that observation was not critical to the determinative issues in the case.  In our view, given that the facts of AJ are far removed from the facts of the present case, and that the statement set out in the previous sentence plainly is obiter, AJ is of no assistance in resolving the issues agitated under cover of the first ground.

   [50]Ibid 619 [21], citing R v K (1991) 161 LSJS 135, 140 (King CJ).

   [51]Ibid 620 [22].

5. In light of Garofalo, Marwan and Ho, the contention that a substantial miscarriage of justice resulted from the prosecution’s failure to ‘engage’ with the CCRs — whatever precisely that was meant to convey — is wholly untenable.  The prosecution had no duty to obtain the CCRs or to introduce them into evidence through the Informant (or otherwise).  Moreover, the applicant had full access to the CCRs, and was able to call evidence as to what they established.  Indeed, had he sought to tender them, they undoubtedly would have been received in evidence.  Plainly, he was able to use them to advance his case. 

6. Further, in circumstances where the evidence derived from the CCRs was left unchallenged by the prosecution it is impossible to see that the evidence ‘lost weight’ or was ‘devalued’ because it was not introduced as part of the prosecution case.  Allied to that, there simply is no substance in the complaint that, since the CCRs were not introduced in the prosecution case, he ‘had to open his case, highlighting … that the applicant himself did not give evidence and calling evidence’.  It is impossible as a matter of logic to see that is so.  In any event, juries in the modern age well know that an accused person is capable of giving evidence.  And for the sake of completeness we note that, unlike in days gone by, the applicant did not lose the right to have his counsel address last by reason of having gone into evidence.[52]

   [52]In former times, there was a practical disadvantage to the defence if the accused called evidence.  Hence, if the accused called witnesses other than as to character, the defence sometimes lost the right to address after the prosecution, and the prosecution was permitted to address in ‘reply’ (albeit that the order of addresses appears to have been at the discretion of the trial judge).  See R v Kelly [1963] VR 325 (Sholl J); R v Orton [1922] VLR 469 (Cussen J). No such disadvantage now exists. See now Criminal Procedure Act 2009, ss 234 to 236.

7. The other contentions advanced under cover of ground 1 can shortly be disposed of.

8. Given that the applicant sought to rely on the CCRs (at least in part) as evidence of the alleged ‘post-offence relationship’ between the applicant and the sisters, it is inevitable that s 54H of the JDA would be engaged. Hence, the judge would have been obliged to give the directions required by s 54H(5) whether or not the prosecution asked for them. Thus, the contention that the prosecutor’s request for a direction under s 54H of the JDA ‘underscored the unfairness in the matter’ is unsound.

9. Finally, although the imprecise question asked of SB in re-examination may have elicited a non-responsive, inadmissible answer, neither the question nor answer can have resulted in a substantial miscarriage of justice.  If they can have had any effect on the fairness of the trial, the effect can only have been extremely trivial.

10. The first proposed ground of appeal must fail.

Conviction ground 2: Preventing defence counsel from putting call charge records to the Informant

1. As we have indicated, the Informant, Detective Hunter, did not obtain the CCRs requested by the defence. 

2. At the completion of Detective Hunter’s evidence-in-chief, defence counsel informed the judge in the absence of the jury that the relevant CCRs had been produced in obedience to a subpoena issued.  Counsel then told the judge that she would be ‘seeking to put to this informant … that the records having been obtained show that there is upwards of 400 contacts between each complainant and [the applicant] during that relevant period of time’.  The prosecutor responded as follows:

   I do object to the informant being asked that question.  It’s not the informant’s document.  So I’m not going to stand in the way of the document, the CCRs being tendered, and my learned friend making submissions upon their content.  But it is not for the informant to say ‘I’ve looked at this defence document and I can say the following amount about it’.

   His position as I understand it will be he was sent four pages … but he wasn’t in fact provided the full CCRs and it’s not his role in my submission to go through the CCRs to identify what my learned friend seeks to put by that.  As I put I don’t have a difficulty with their being an agreement that they can be tendered and then submissions made upon them. … But it not be the informant’s document or his position to comment upon them, that’s the issue I have with this being raised in cross-examination, yes.

3. In the course of discussion, the judge said it was not the Informant’s obligation to go through the CCR records, and the judge would not require him to do so.  Addressing defence counsel he said:

   Any unfairness that might be brought to [the applicant] by this failure to examine the records themselves can be cured by what [the prosecutor] suggests, that the records that you seek to rely upon can be tendered as an exhibit in the trial by consent …

4. After more discussion, the judge stood the matter down to see if counsel could reach agreement, but they were unable to do so.

5. When the matter resumed, defence counsel then announced that she would take the Informant through the 5,000 pages that the CCRs consisted of.  Faced with that proposal, the judge — not unreasonably, it must be said — responded: ‘No, I wouldn’t allow that, [counsel], that would make a debacle of the trial’.

6. In her cross-examination of Detective Hunter, defence counsel elicited the fact that the applicant’s solicitors had requested him to obtain the CCRs.  The cross-examination then continued as follows:

   And so, those records that his legal representatives are imploring for you to go and get, did you ever take those steps to go and get those?---I sought advice from the Office of Public Prosecutions in relation to the request and was advised that, ah, the Victoria Police would not be, ah, accessing those records on behalf of defence. 

   And so, it was advice that you’d received that you shouldn’t in fact go and obtain those records.  Is that right?---That’s correct.

   And that was advice, it seems, from the Office of Public Prosecutions?---Correct.

   So if I can just understand this.  It is the Office of Public Prosecutions who stood in your way to go and get those records?---I sought advice as to whether or not we were required to obtain these records on behalf of defence, and I was instructed that no, we were not. 

   All right.  Are you aware that as a result of you not doing that, what [the applicant’s] legal representatives then did is ultimately issue a subpoena for those records to be obtained and produced to the court?---Yes, I am aware of that.

   And you’re aware that they were produced - I think it was not even last week; the week before, to this court?---I believe so.

   Detective Acting Sergeant, have you had a chance yourself to review those records and what they say?---I have not seen those records.

   And that must mean that you cannot – you’re unaware or you have no information about in fact the volume of communication between each [SB] and [CB] and [the applicant] during that crucial period?---I have no idea.

7. In this Court, counsel for the applicant submitted in writing that the judge erred in prohibiting defence counsel from conducting the proposed cross-examination, contending that it ‘would ordinarily be proper to put to the Informant documents of this kind in order to elicit such evidence’.  Instead, counsel submitted, what occurred in cross-examination was that the Informant simply answered that he had ‘no idea’ of the volume of communication between the two sisters and the applicant.  Counsel submitted that this left the applicant ‘with the only option of opening his case and calling his instructing solicitor to give evidence, effectively reversing the burden of proof in relation to a matter that was known to all parties’.  A substantial miscarriage of justice resulted from the defence being ‘unfairly prohibited from conducting an appropriate line of cross-examination’.  Evidence, otherwise appropriate, was required in the circumstances to be led through a solicitor, as opposed to a police witness.  Counsel submitted that ‘this subsequently diminished its probative force’, and highlighted to the jury that the applicant had opened his case and not personally given evidence.

8. We consider the submissions advanced by the applicant’s counsel under cover of ground 2 to be without merit.

9. First, the judge plainly was correct to observe that the Informant had no obligation to go through the CCRs to satisfy himself of their contents.

10. Secondly, the submission put in unqualified terms that it ‘would ordinarily be proper to put to the Informant documents of this kind in order to elicit such evidence’ is simply wrong.  The CCRs were not the Informant’s documents.  He did not have personal knowledge of what they contained.  Except in a very limited fashion, he could not properly be cross-examined on them.

11. At common law, the rule in Queen’s Case[53] provided that a witness could not be asked any question about the contents of a document unless it was first shown to the witness and put in evidence by the cross-examiner as part of his or her case.  Otherwise, a witness could be cross-examined about a document of which he or she was not the author only in a very narrow manner.  Hence, if the cross-examiner wished to cross-examine on a document, it was necessary that the cross-examiner first show the document to the witness.  The cross-examiner was then confined to asking the witness whether, having looked at the document, he or she still adhered to his or her previous evidence.[54]

    [53]Queen’s Case (1820) Brod & Bing 284 [129 ER 976].

    [54]R v Orton [1922] VLR 469, 470 (Cussen J); R v Bedington [1970] Qd R 353, 359 (Lucas, Hoare and Campbell JJ); Alister v The Queen (1984) 154 CLR 404, 442–3 (Wilson and Dawson JJ).

12. Common law rules have, however, been superseded by the provisions of s 44 of the Evidence Act 2008:

    44 Previous representations of other persons

    (1)Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

    (2)A cross-examiner may question a witness about the representation and its contents if—

    (a)   evidence of the representation has been admitted; or

    (b)   the court is satisfied that it will be admitted.

    (3)If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows—

    (a)   the document must be produced to the witness;

    (b)   if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

    (c)   the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;

    (d)   neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

    (4)A document that is so used may be marked for identification.

13. Under s 44(1), the general rule is that a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. An exception to the general rule is provided for in s 44(3). Hence if the representation about which a cross-examiner wishes to question the witness is contained in a document, the document must first be produced to the witness. Next, the cross‑examiner must ask the witness whether, having examined the contents of the document, the witness stands by the evidence that he or she has given (but neither the cross-examiner nor the witness is to identify the document or disclose any of its contents).

14. Self-evidently, absent recourse to the regime in s 44, defence counsel in this case had no ability to put the contents of the CCRs to the Informant. Hence, the major premise underlying this ground of appeal is misconceived.

15. In any event it is unrealistic to contend that there was any unfairness occasioned to the applicant when the critical contents of the CCRs were put into evidence and left unchallenged by the prosecution.  And it is chimerical to suggest that their tender by the defence might somehow have been interpreted by the jury as reversing the onus of proof, in circumstances where the trial judge gave repeated, correct directions on the onus and standard of proof.

16. Ground 2 must fail.

Conviction ground 3: Directing the jury to disregard defence criticism of police investigation

1. Ground 3 is prefaced on the flawed premise that the prosecution was under an obligation to obtain the CCRs.  As we have explained, the prosecution had no such obligation.

2. In her closing address to the jury, defence counsel criticised the prosecution for not obtaining the CCRs.  The prosecutor took issue with that criticism.  After debate, the judge said he would ‘give a direction that there was no duty on the Crown … to obtain those records and no more’.

3. When charging the jury, the judge gave the following, somewhat anodyne, direction about defence counsel’s criticism:

   [Defence counsel] made some criticisms of the police investigations.  I do need to say something to you about this.  She criticised the prosecution for not obtaining the phone records that [the applicant’s] solicitor had to get.  The prosecution was under no obligation to get those records.  So you will disregard that criticism.

4. Given that the prosecution had no duty to obtain the CCRs, defence counsel’s criticism was unjustified.  There can be no doubt that the judge needed to correct counsel’s error.  His corrective direction was a model of restraint.  It was faultless.

5. Ground 3 is devoid of merit.

Conviction ground 4: Judge’s refusal to give a direction under s 43 of the JDA

1. If defence counsel requests a trial judge to give a direction on the prosecution’s failure to ‘call or question a particular witness’, s 43(2) of the JDA provides that the trial judge may give such a direction

   only if the trial judge is satisfied that the prosecution—

   (a)was reasonably expected to call or question the witness; and

   (b)has not satisfactorily explained why it did not call or question the witness.

2. Investigating police in this case had not taken a statement from BD — the applicant’s and BS’s child, and the younger half-brother of the sisters — and the prosecution did not call him as a witness.  After the evidence closed, the trial judge raised with defence counsel the fact she had cross-examined Detective Hunter on his failure to take a statement from BD (and another person), and asked counsel whether she proposed ‘to make any criticism of the prosecution for failing to take those statements’.  The judge said he did not ‘see a basis for such a submission’, adding that ‘on the evidence [he had] heard, there’s no suggestion that [BD] was present or could have given or made any observations that might have been relevant’.  Counsel responded that she would ‘reflect on it overnight’.

3. Having reflected on the matter, the next day, in course of the discussion contemplated by s 12 of the JDA, defence counsel asked the trial judge give a direction under s 43 of the JDA with respect of the prosecution’s asserted failure to call BD. The ensuing discussion between the trial judge and defence counsel is instructive:

   [HIS HONOUR:]  In relation to [BD], as I indicated to you yesterday, [defence counsel], on the evidence, I don’t see it as appropriate to give that direction.  On the evidence, there’s no suggestion that [BD] had come forward with any information and should’ve been spoken to by police.  And there’s nothing in the statements of [BS], but in particular, [CB] and [SB] and also [AF], that would suggest that [BD] might’ve had some material information to give police.

   [DEFENCE COUNSEL:]  If I can just briefly address Your Honour about - - -

   HIS HONOUR:  Well let me finish.  So what I’m saying is, if you’re going to address the jury about that, I would regard it as appropriate to give them a direction that they should not speculate or guess what [BD] might’ve said.  The other aspect of it as I said yesterday was, [BD] was younger than his sisters.  And so of tender age when these events are alleged to have occurred.

   [DEFENCE COUNSEL:]  Your Honour, [BD] through to 7 to 17 (sic) at the time when he lived at the [family’s] house.

   HIS HONOUR:  Right.

   [DEFENCE COUNSEL:]  He lives in the same household, in my respectful submission, as his step-father and these two complainants when these [sic], on their version, constant and repeated conduct is occurring, including, and this is [SB’s] – [CB’s] version, including in front of other people.  And in addition to that Your Honour, he is placed at the scene of the [local] pub incident by [SB].  She says ‘Mum was there, although Mum was at the bar, but I was sitting with some – with [CB], [BD] and [the applicant] in the booth’.  So - - -

   HIS HONOUR:  But [SB’s] evidence is that [the applicant] on that occasion, touched her covertly, under the table where no one would see.

   [DEFENCE COUNSEL:]  And in my respectful submission Your Honour, it does not mean that [BD], who is present there in close proximity, would not be a relevant witness for the police to speak to and for the prosecution to call.

   HIS HONOUR:  I don’t agree with that submission in the circumstances that [SB] described, that is that he grabbed her under the table.

   [DEFENCE COUNSEL:]  As Your Honour pleases.

   HIS HONOUR:  All right, so I’m against you on that point.

1. In this Court, counsel for the applicant submitted that the judge’s determination concerning BD’s relevance as a witness was principally based on the complainants’ failure to expressly state that BD had material information to provide. But, counsel submitted, that is not to the point. A complainant’s view as to what another person may or may not have observed is not determinative as to whether that person can give relevant evidence. Counsel submitted that such a view is a ‘far cry’ from rebutting the matters in s 43(2).

2. Counsel’s oral submissions drew heavily on this Court’s decision in Solis.[55] That case involved alleged sexual offending by an 18 year-old male against a female complainant of 12 or 13. The applicant’s father, ‘CS’, was in a relationship with the complainant’s mother, ‘MM’. At relevant times, the alleged offending occurred in ‘a smallish three bedroom Housing Commission style house’ occupied by five people, including ‘BB’, the complainant’s 17 year-old brother. The evidence at trial was that at all material times BB was at home in his bedroom virtually 24 hours a day, and that CS was present overnight, in circumstances where all of the alleged offences were said to have been committed overnight. The prosecution did not call CS or BB to give evidence at trial, and the trial judge refused defence counsel’s request to give the jury a direction under s 43 of the JDA about that failure.

   [55]Solis (a pseudonym) v The Queen [2018] VSCA 275 (Kyrou, McLeish and T Forrest JJA) (‘Solis’).

3. The Court in Solis was of the view that the police were legitimately criticised for failing to interview or to seek to interview CS and BB, given this ‘was a small three bedroom house with five occupants on most nights during the relevant period’, where most of the activities ‘were said to have occurred in the lounge room area, near all three bedrooms’.[56]  In oral submissions, the applicant’s counsel in this Court seized in particular on the following observations:[57]

   We consider it was not open to [the trial judge] to be satisfied that the prosecution was not reasonably expected to call both witnesses, BB and CS.  Put in positive language, in our view, her Honour should have been satisfied that the prosecution was reasonably expected to call these witnesses.  Both were present in the house at most material times over a period of months.  As her Honour commented, if this activity was as frequent as alleged, the police ‘might have spoken to [them]’.  The existence of these witnesses was well known to all parties.  We agree with the applicant’s counsel that even if their evidence turned out to be, ‘I heard nothing, I saw nothing’, this could itself be of forensic significance.

   [56]Ibid [102].

   [57]Ibid [105].

4. Notwithstanding these observations, and a positive finding that the trial judge should have given a direction under s 43,[58] the relevant ground of appeal in Solis failed because the Court concluded that the failure to give a direction did not result in any substantial miscarriage of justice.[59] In reaching that conclusion the Court considered that the impact of the denial of the s 43 direction was to a very significant extent ameliorated by a concession made by the prosecutor in her closing address to the effect that there were people in this small house when the offences occurred and that ‘no one heard anything’.[60]  The Court said:[61]

   The jury was clearly told, in effect, that nothing that CS or BB could have said would have helped prove the applicant’s guilt.  This was all that the jury would have been told they could have inferred had the direction been given.  Beyond that, as a product of a prosecution concession favourable to the applicant, the jury were told that in fact nobody heard anything.  For these reasons, the applicant has not shown that the failure to give the direction resulted in a substantial miscarriage of justice.  To the contrary, we are confident that it did not.

   [58]Ibid [108].

   [59]Ibid [110].

   [60]Ibid [111].

   [61]Ibid [112].

5. There are few parallels between the situation in Solis and the varying situations revealed by the evidence in the present case.  Indeed, asked in oral argument to list the matters that should have led to the conclusion that the prosecution would reasonably be expected to call BD as a witness, counsel for the applicant submitted that: BD lived in the same house as SB and CB; he was of a similar age to the complainants at the time of the offending; he was an adult (aged 21 years) at the time of the trial; and ‘he uniquely … in respect of charge 7, which is offending that’s alleged to have occurred in a booth at a pub, would have been a direct witness to the immediate lead-up and aftermath of that offending’.  Importantly, however, counsel for the applicant accepted that — apart from the events relevant to charge 7 — none of the complainants in their evidence suggested that BD was present when any of the alleged offending occurred.

6. As to that, AF’s evidence relevant to charges 1 and 2 was that, when she was aged 10 or 12, the applicant indecently touched her when she had been sleeping on a futon in the loungeroom of the applicant’s family home, at a time when SB and CB were asleep in their bedroom in another part of the house.  Given that AF was born in 1990, BD, born in 2002, at best would have been a baby.

7. SB’s evidence was that the activities founding charge 5 occurred when she was alone in her bedroom.  CB and BD — who were not present in the room — had separate bedrooms.  Charge 6 related to events concerned with the shower in the bathroom when SB was ‘about seven years of age’.  There was no evidence of precisely where BD was at that time; but, given that he was three years younger than SB, he would at that time have been around four years of age.

8. Charges 8 to 18 all involved CB.  The activities founding charges 8, 9 and 10, allegedly occurred in the bathroom.  CB’s evidence was that BD ‘probably would’ve showered already and been in his room’ (and BS, her mother, was ‘probably’ at ‘Bingo’).  Charge 11, allegedly occurred in the kids’ loungeroom.  CB and the applicant were alone, and BS was not at home.  The activity on charge 12, involving CB, also occurred in that loungeroom.  There was evidence that BS was not at home, and that SB and BD were asleep.  The events founding charge 13 allegedly occurred in a shed at the back of the property when the applicant had CB stand on a bucket.  BS was not at home, and nobody else was present in the shed.  Charges 14 and 15 related to events in the applicant’s parents’ home, when the applicant and CB, who had been on a school ‘orientation’ trip, stayed overnight.  BD did not go on that trip.  Charge 16 related to an occasion when the applicant and CB were completely alone in a car on an isolated dirt road.  CB said that the events founding charge 17 occurred in the applicant’s bedroom when BS was not at home.  There was no evidence as to where BD might have been, but there was evidence that the applicant’s parents arrived unexpectedly.  Finally, the events relating to charge 18 occurred in CB’s bedroom when BS was not at home, and nobody else was present in the room. 

9. There was simply no evidence that BD was in the near vicinity when the incidents founding any of the charges save for charge 7 allegedly occurred, and thus might have observed something of relevance.  The events at the local hotel, upon which charge 7 was based, stood in a different position, in that the evidence disclosed that BD was in the immediate vicinity of where the alleged offending took place.  SB described the events in her evidence-in-chief as follows:

   [W]ho was there?---Myself, [the applicant], Mum, [CB] and [BD] and I was sitting next to [the applicant].  I was against the wall, he was on the outer side of the booth and Mum was up getting drinks from the bar and she asked if someone could come help and I said to [the applicant] can you please move ‘cause I will go help Mum bring the drinks over to the table and he said no so I had to climb under the table and when climbing under the table, he reached under and groped me.

   When you say he groped you, what part of him touched what part of you?---His hand touched my bum and vagina.

   What did you do?---I got out from the table and I looked at him and he just had a smirk on his face.

   Was anything said at that time?---No.

   Did you say anything to – your mum still at the bar?---Yes.

   Did you go over there to help her?---Yep.

   Did you say anything to your mother?---No, I didn’t.

   Why was that?---Because I still had in my head from the last incident that happened that Mum wouldn’t have believed me.

10. As we have indicated, the applicant’s counsel in oral submissions put some emphasis on the events relating to charge 7 to support the contention that the judge should have given a direction under s 43 of the JDA with respect to the prosecution’s failure to call BD. SB’s evidence was that, when she climbed under the table, the applicant allegedly reached underneath and touched her buttocks and vagina with his hand. Notably, defence counsel did not cross-examine either BS or CB, who were present at the hotel — BS was over at the bar and CB was in the booth — about anything they saw (or failed to see) with respect to the applicant’s interactions with SB. In those circumstances, it is unlikely that, had BD been called, defence counsel would have cross-examined him about the events at the hotel. Indeed, neither before the trial judge, nor in this Court, did the applicant’s counsel suggest that there was any fertile line of cross-examination that defence counsel might have pursued with BD. It might be inferred that is because the available evidence revealed that the forbidden touching was furtive and unlikely to have been observed by those nearby.

11. In considering this ground it is important to understand that the Court in Solis was of the view that, because of ‘the proximity of the two witnesses to the many accusations of sexual misconduct alleged over some months’, they should have been interviewed and the prosecutor should then have made an informed decision whether to call them.  That view was formed against the backdrop that ‘the prosecutor is under a duty to call all credible witnesses whose evidence is essential to fully presenting the narrative of the case’. [62]

    [62]Ibid [107]. (Emphasis added.)

12. As we have said, there is no evidence to suggest that in relation to any of the charges, BD might have been in a position to observe something of relevance.  Moreover, the evidence established his positive absence from the vicinity when some of the illicit activities took place, and that he was of a tender age when others allegedly occurred.  With respect to charge 7, the acts alleged against the applicant were surreptitious, and allegedly occurred in circumstances where others present did not observe the applicant’s misconduct.  Certainly, in her cross-examination of them, defence counsel made no attempt to exploit BS’s or CB’s failure to observe the applicant’s alleged touching of SB.  No doubt that was because defence counsel realised that such cross-examination was unlikely to be forensically productive.

13. In the circumstances, it could not be said that any evidence BD might have been able to give was essential to fully presenting the narrative of the case.  Other evidence in the case simply did not establish that BD had proximity to the many occasions of alleged sexual misconduct over an extended period.  Thus, whether or not BD had relevant evidence to offer concerning the circumstances relevant to charge 7 remains in the realm of speculation.  The mere fact that he was present at the table is insufficient to found an inference that he might have observed, or be able later to recall, anything of relevance.  It follows from his age, the nature of the allegations and the fact that no evidence was adduced from other people present, that there is no evidentiary foundation for the applicant’s submission, let alone that there is a basis upon which it might be concluded that there had been any substantial miscarriage of justice.

14. Given the foregoing, there is no basis upon which the trial judge should have been satisfied that the prosecution should reasonably have been expected to call or question BD.

15. Ground 4 cannot be upheld.

Conviction ground 5: An aggregation of errors

1. None of the complaints advanced by the applicant’s counsel under cover of grounds 1 to 4 have been made out.  Ground 5 must therefore fail.  There are no errors to aggregate.

Conviction ground 6: Tendency evidence

1. Under cover of ground 6, the applicant’s counsel did not cavil with the proposition that the allegations of the sisters, SB and CB, could properly be led as tendency evidence, one with respect to the other.  Counsel contended, however, that AF’s evidence was not cross-admissible as tendency evidence in relation to the allegations involving the sisters, and that the evidence of the sisters could not be used as tendency evidence in relation to AF.  The position taken by the applicant’s counsel before the trial judge and in this Court was that the alleged tendency ‘was expressed at a high level of generality which substantially reduced its probative value’.  Counsel did not assert, however, that the trial judge failed to identify the correct principles.  Instead, counsel submitted that the judge did not give effect to the ‘second limb’ in Hughes.[63]

   [63]Hughes v The Queen (2017) 263 CLR 338, [41] (Kiefel CJ, Bell, Keane and Edelman JJ) (‘Hughes’).

2. For the purposes of the trial, the prosecution relied on a ‘Further Amended Tendency Notice’, dated 23 January 2024, filed pursuant to s 97(1)(a) of the Evidence Act 2008 (‘the notice’).  The notice made clear that the prosecution sought to rely on the tendency of the applicant:

   1.   To have a particular state of mind, namely:

   (a)  To have a sexual interest in underage female relatives of his wife aged between 7–15 years, and willingness to act on it; …

3. The notice also set out that the prosecution sought to rely on the tendency of the applicant:

   To act in a particular way, namely to engage in acts of sexual misconduct with underage female relatives of his wife, when aged between 7–15 years, including sexual touching and sexual penetration, in circumstances where:

   (a)he took advantage of his familial relationship as brother-in-law/stepfather to exploit opportunities to engage in sexual acts with them;

   (b)when they were in the home or travelling in his car;

   (c)and primarily when his wife [BS] was not present.

4. In ruling on defence counsel’s objection to the tendency evidence, the trial judge cited a passage from Hughes,[64] and said:

   [64]Ibid 349 [17].

   After careful consideration of the helpful submissions of both prosecution and defence, I am satisfied, for the reasons the prosecution advanced, the evidence of the charged acts in relation to [AF] and the uncharged acts in relation to [SB] and [CB] in combination strongly supports proof of the tendency alleged, and the tendency strongly supports proof of the facts which are in issue.

   I am satisfied the risk of prejudice to [the applicant] can be fairly dealt with, by appropriate directions.  

   Accordingly, I am satisfied that the evidence to which [the applicant] has objected is admissible for a tendency purpose. 

   The prosecution also proposes to adduce evidence from [AF] that, during her childhood, [the applicant] often touched her and claimed that he was playing around; and further, that he would often put his hand down her pants and touch her bottom or he would grab her breasts and give her a nipple cripple.

   [The applicant] seeks exclusion of this evidence under s 137 of the Evidence Act.

   [The applicant] submits the evidence, because it is so nebulous and unparticularised, has low probative value which is outweighed by the danger of unfair prejudice to him because the vagueness of the allegations denies him the ability to properly test them. 

   The prosecution submitted the evidence is relevant as context evidence because it makes it less likely that [the applicant] jokingly pulled down [AF’s] pants as alleged in Charge 3 in isolation and makes it more likely [AF] did not complain about that episode because [the applicant] often touched her inappropriately while claiming he was being playful. 

   The evidence has significant probative value because it gives background information which may help the jury assess and evaluate other evidence in the case in a true and realistic context.

   It is admissible as context evidence.

   I am not satisfied its probative value is outweighed by the danger of unfair prejudice to [the applicant].  I am satisfied the danger of prejudice to him can be fairly dealt with, by directions. 

   Accordingly, I refuse the application to exclude this piece of evidence under s 137.

5. We would reject the central contention advanced by the applicant’s counsel under this ground that, because it was alleged at a high level of generality, the evidence of alleged tendency deprived the evidence of significant probative value.

6. In Bauer, the High Court observed:[65]

   In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together.  More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant.  And 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.[66]  If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.

   Hughes illustrates the point.  The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants.[67]  It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another.  The issue was how much if any of each complainant's evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants.  And the case was ultimately decided by majority[68] on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.

   [65]R v Bauer (a pseudonym) (2018) 266 CLR 56, 87–8 [58]–[59] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original) (‘Bauer’).

   [66]See HML v The Queen (2008) 235 CLR 334 at 354 [11]–[12] (Gleeson CJ); 382–3 [105] (Hayne J) (Gummow J and Kirby J agreeing at 362 [41], 370 [59]); GBF v The Queen [2010] VSCA 135 at [26]; BBH v The Queen (2012) 245 CLR 499 at 525 [70]–[71] (Hayne J, Gummow J agreeing at 522 [61]).

   [67]See Hughes v The Queen (2017) 263 CLR 338, 358–60 [44]–[54] ( Kiefel CJ, Bell, Keane and Edelman JJ).

   [68]Ibid [57]–[60] (Kiefel CJ, Bell, Keane and Edelman JJ).

1. Whilst it might be acknowledged there were differences in the relationship that the applicant had with AF when compared with the relationship that he had with SB and CB, we consider that the common features relied upon by the prosecution in this case linked the sexual offending against each of the three complainants in such a way as to provide the evidence with significant probative value; in particular, the evidence of an adult having a sexual interest in a child, in circumstances where that sexual interest was confined to relatives of his wife. Further, the evidence also showed that the applicant had a willingness to act on that sexual interest in a particular way, frequently (although not exclusively) in a domestic setting; and often when the complainants were in his care because his wife was absent, so that he was able to take advantage of the trusted familial relationship he had with each complainant and exploit it to engage in sexual activity. In our view, these were common features which linked the offending alleged against each of the three complainants together, and imbued the evidence with the significant probative value contemplated by s 97(1)(b) of the Evidence Act 2008, which, within the meaning of s 101(2), substantially outweighed any prejudicial effect it may have had on the applicant.

2. Ground 6 therefore must fail.

Sentence: Did orders for cumulation lead to manifestly excessive sentence?

1. With respect to sentence, counsel for the applicant submitted that the orders for cumulation arrived at by the judge infringed the principle of totality and produced a manifestly excessive total effective sentence.

2. We do not agree.  If anything, the orders for cumulation were moderate (if not lenient).

3. By reason of pt 2A of the Sentencing Act 1991, the applicant fell to be sentenced as a serious sexual offender on charges 5 to 18.  As the judge recognised in his reasons for sentence, he was required as a result to regard the protection of the community as the principle sentencing purpose, and to take into account the presumption that the individual sentences imposed would be ordered to be served cumulatively.  The judge also recognised, however, that the totality principle ‘remains important’.  He remarked that, without undermining the legislative policy, he would make orders that ensured that the applicant’s total effective sentence reflected his ‘overall criminality’.

4. Particularly given that they were not subject to the ameliorating influence provided by a plea of guilty, the individual sentences of six years and six months’ imprisonment on each charge of incest, charges 11, 12 and 15 — involving incidents of fellatio, cunnilingus and digital-vaginal penetration perpetrated upon CB — are hardly remarkable.  Indeed, they sit comfortably within the range of sentences available to the judge in the sound exercise of discretion.  Nor do the orders cumulating 12 months of the sentences on each of charges 12 and 15 upon the base sentence, charge 11 — accounting for eight years and six months of the total effective sentence — immediately strike one as unreasonable. 

5. Of some note, when the offending overlapped — for example, charge 1 involving AF, and charge 14 involving CB — no cumulation at all was ordered.  Furthermore, the remaining orders for cumulation can only be described as modest.

6. Taking account of all relevant circumstances, we are unable to see that the sentence imposed by the judge infringes the principle of totality.  In our opinion, the individual sentences arrived at by the judge are not open to legitimate criticism, and the orders for cumulation are, as we have said, modest.  The resulting total effective sentence, and the non-parole period, are both well within the range available to the judge in the sound exercise of the sentencing discretion.

7. There is nothing in the sentence application.

Conclusion

1. For the foregoing reasons, the applications for leave to appeal against conviction and sentence must both be refused.

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