R v ALH

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 420 of 2000

THE QUEEN
	v.
ALH

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JUDGES:	CALLAWAY and BATT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2003
DATE OF JUDGMENT:	4 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 129

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Criminal Law - Sexual offences - Eight count presentment - Applicant convicted on seven counts - Earlier trial with different complainant at which applicant acquitted - Alleged attempt by that complainant to influence jury - Whether miscarriage of justice - Applicant convicted on seven counts and acquitted on one - Whether convictions inconsistent with acquittal - Judge's directions regarding consent and inferences - Four counts relating to offences when applicant was under 14 - Requirements of doli capax rule - Whether acts constituting the offences and applicant's age may be sufficient on their own to discharge onus - C v. Director of Public Prosecutions [1996] A.C. 1 not followed - Whether judgments and verdicts of acquittal or new trial should be directed - Crimes Act 1958, s.568(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Michael Brugman

CALLAWAY, J.A.:

The grounds of appeal are paraphrased and the facts are set out in the reasons for judgment of Cummins, A.J.A., which I have read in draft form. The respondent conceded that ground 8 and ground 6 so far as it relates to indecent assault should be upheld and the applicant's convictions on counts 1, 2, 5 and 6 quashed. In my opinion, grounds 1 and 2, as argued, should also be upheld, with the consequence that the applicant's convictions on all counts should be quashed. I shall first explain, with as little repetition as possible, why I have reached that conclusion and then turn to the question whether the Court should direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.[1]
[1] Crimes Act 1958, s.568(2).

Grounds 1 and 2 are that the learned trial judge erred in failing to conduct an enquiry into allegations of interference with the jury and failing to discharge the jury following those allegations. It was common ground that the question for us is not so much whether her Honour erred in either of those respects but rather whether the material relating to those allegations and her decision not to discharge the jury resulted in a miscarriage of justice.[2] That is why I have referred to grounds 1 and 2 as argued.
[2]Compare Maric v. R. (1978) 52 A.L.J.R. 631 at 634-635.

As Cummins, A.J.A. has explained, it was the prosecutor who raised the possibility of interference with the jury. He reported to the judge not only what he had been told by Mrs Clarke, the mother of both the applicant and the complainant, but also what he had been told by the complainant herself. My reasoning is best explained if I begin with the complainant's account.

The jury had begun their deliberations. At 4.22 p.m. on Thursday 16^th November 2000 they were permitted to separate, having first been sworn in accordance with s.51A of the Juries Act 1967. Mrs Clarke, the complainant and JH, the complainant in the previous trial where the applicant had been acquitted on all counts, were in the body of the court.[3] The complainant said that, after they left, JH said to her something to the effect of "You are going to win, just trust me", that she asked him what he meant and whether he knew one of the jurors and that he replied "I'm not saying nothing [sic]". They then went home.
[3]It should be recorded that we have not heard JH's account. After an investigation, the Acting Director of Public Prosecutions decided to take no action.

The complainant had another conversation with JH during the luncheon break the next day. The complainant said that she asked him directly whether he knew one of the jurors and he said "Yes". She said that she asked him "How do you know we're going to win?" and he claimed that, as the jury were leaving the court on the Thursday afternoon after the administration of the oath, he had mouthed the word "convict" to a juror and the juror had smiled at him and winked. The complainant said that she asked JH whether he had actually spoken to the juror and that he had denied that but had said to her "Don't tell anyone about what I have told you" or words to that effect.

That is the essence of the allegation of jury interference. Mrs Clarke's account and another matter to which I shall refer shortly corroborate it. Mrs Clarke told the prosecutor that, on the Thursday afternoon when the jury left the court, she was sitting near JH, that she saw him look at a young male juror and smile at the juror and that the juror winked at JH, apparently in response to the smile. True it is that she did not observe JH mouthing a word, but she did observe visual communication and a visual response. The other corroborative matter is that the youngest juror (Mr McArdle conceded that it was obviously the same juror) had already told the judge's tipstaff that he thought he knew the person we know to be JH, because they had been at school together.

The exchanges between the judge and counsel, the application to discharge and her Honour's reasons for refusing to discharge the jury appear from Cummins, A.J.A.'s reasons for judgment. They enable me to proceed directly to the issue whether the allegations made by the complainant and her mother were such that, the jury not having been discharged, this Court should say that there was a miscarriage of justice.

The answer to that question depends upon whether the test for ostensible bias, as applied to jurors, was satisfied in relation to the young juror with whom JH allegedly had some form of communication. If so, the jury should have been discharged, because a reasonable apprehension of bias is one of the circumstances that constitute a high degree of need.[4] A miscarriage would have occurred, because impartial justice must be seen to be done.[5] The test for ostensible bias is well settled. Applied to a juror, it is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the juror might not bring an impartial and unprejudiced mind to the resolution of the matters before him or her.[6]
[4]See Webb v. R. (1994) 181 C.L.R. 41; R. v. Holt and Merriman (1996) 87 A.Crim.R. 82 at 86 and R. v. Matthews [1999] 1 V.R. 534 at 537.
[5]R. v. Sussex Justices; ex parte McCarthy [1924] 1 K.B. 256 at 259.
[6]I take that formulation from the joint judgment of this Court in Rozenes v. His Honour Judge Kelly [1996] 1 V.R. 320 at 329, but see also the joint judgment of the High Court in Livesey v. New South Wales Bar Association (1983) 151 C.L.R. 288 at 293-294 and Ebner v. Official Trustee in Bankruptcy (2000) 205 C.L.R. 337 at [6]-[7]. In Webb v. R. (1994) 181 C.L.R. 41 it was held that the same test applies to a juror.

Speaking of Mrs Clarke and the complainant, the prosecutor told the judge that the Crown had "no reason to doubt what these two obviously honest people say happened, but they may have slightly misinterpreted what happened in court". Her Honour was not asked to conduct any investigation. It is, to my mind, unfortunate that she did not require at least Mrs Clarke and the complainant to give evidence. The possibility of misinterpretation might then have been cleared up. But her Honour did not do so. What then are the material objective facts of which a fair-minded lay observer must be taken to have had knowledge?

The critical fact is that a person with animus, the complainant at the first trial where the applicant had been acquitted on all counts, claimed that he had successfully influenced a juror. That claim is itself a material objective fact. JH said not only that he had mouthed the word "convict" and the juror had smiled and winked but also that the complainant, meaning the prosecution, was going to win. That is a claim of successful influence or at least of a belief that the attempt at influence had succeeded. I do not think it would be safe to infer that the claim was made simply to comfort the complainant.

The evidence of the claim comes directly from the complainant and is corroborated by Mrs Clarke and what the young juror had told the tipstaff. Mrs Clarke's account afforded independent confirmation that there had been at least some form of communication and what the young juror told the tipstaff established that there was a juror known to JH whom he might have tried to influence. It was said that the juror's conduct in speaking to the tipstaff was responsible, but he did not report the subsequent communication.[7] The fact that the jury deliberated for a long time is neutral. It may mean only that the other jurors worked long and hard.
[7]Compare R. v. Boland [1974] V.R. 849 at 865.

It is apparent from the transcript that the prosecutor, and probably the judge, had a poor opinion of JH's reliability, but there is no evidence before us of the facts justifying that opinion. They are not among the material objective facts that must be taken to be known by the fair-minded lay observer. At most, he or she must be taken to know that the prosecutor, and probably the judge, entertained such an opinion.

It matters not, in my opinion, that there is no reason to think that the juror was aware of JH's connection with the case, in the sense of being the complainant at the first trial. It is the previous association between the two young men, not JH's connection with the case, that increases the plausibility of JH's alleged attempt to interfere with the jury's deliberations. Indeed, if the young juror had known JH's connection with the case and the earlier jury's verdict, that may have made successful influence less likely. It is JH's animus that discredits him.

Her Honour faced a difficult decision. This was not a clear-cut case of a high degree of need to discharge a jury that had begun its deliberations, but, with the benefit of reflection, I am persuaded that a fair-minded lay observer with knowledge of JH's claim and the subsequent verdicts and the corroborative material that made the claim plausible might have entertained a reasonable apprehension that the juror might have been influenced. It is for these reasons that I would uphold grounds 1 and 2.

In the ordinary course that conclusion, on its own, would lead to a direction for a new trial. Mr Thomas advanced three reasons why the Court should instead direct a judgment and verdict of acquittal on all counts.

The first reason was that the applicant should also succeed on ground 4. That ground, as argued, was that there was inconsistency between the applicant's acquittal on count 8 and his conviction on the other counts. In my opinion that ground is without substance. The alleged rape the subject of count 8 was said to have occurred on 23^rd July 1995, more than five years after the last of the earlier counts. The jury were entitled, as Mr McArdle submitted, to be more troubled by the failure of a 19 year-old to complain than by the failure of a child. Moreover the jury's decision to acquit on the sole count where the complainant was an adult is a clear example of the kind of practical justice that King, C.J. described in R. v. Kirkman[8]. His Honour's remarks in that case are well known and were expressly endorsed by Gaudron, Gummow and Kirby, JJ. in MacKenzie v. R. [9].
[8](1987) 44 S.A.S.R. 591 at 493.
[9](1996) 190 C.L.R. 348 at 367-368.

The second reason was that, in our discretion, we should direct a judgment and verdict of acquittal to be entered on each count. Mr Thomas relied on the youth of both the complainant and the applicant at the time, the complainant's unsettled history and medical condition, the delay in bringing the charges and the difficulties that occasioned to the defence, the lack of corroboration, the jury's acquittal on count 8 and the fact that only a suspended sentence of imprisonment had been imposed.

There is no doubt that s.568(2) of the Crimes Act 1958 does confer the discretion that counsel invoked, i.e. to direct a judgment and verdict of acquittal even where it has not been held that the evidence was insufficient to sustain a conviction. The discretion was most recently exercised by this Court in R. v. Tadic.[10] It is, however, to be exercised with caution and only in exceptional circumstances. The circumstances on which Mr Thomas relied are not, in my opinion, exceptional. So far as the sentence is concerned, it has not yet been served. Unlike R. v. Tadic, it cannot yet be said that the operational period has expired without incident. The decision should be left to the Director whether to proceed with a new trial.
[10][2003] VSCA 28. I refer to what I said in that case, with the concurrence of Eames, J.A., at [24].

The third reason that was advanced for directing a judgment and verdict of acquittal applied only to counts 1, 2, 3 and 4. It was said that, if the jury had been directed that they must be satisfied that the applicant was doli capax, there was insufficient evidence on which they could decide that issue in favour of the Crown. When the doli capax rule is understood in the manner explained by Cummins, A.J.A. at [74], that contention cannot be sustained. It was open to the jury to be satisfied beyond reasonable doubt[11] that the applicant was doli capax.[12] They were entitled to take into account not only his age but also the acts constituting the offences. It was unnecessary for there to be additional facts so long as the criminal standard was satisfied. The decision of the House of Lords in C v. Director of Public Prosecutions[13] is, with respect, unduly restrictive.
[11]That is the standard. There is no useful analogy with insanity or mental impairment, where an affirmative burden of proof lies on the accused, or with procedural or jurisdictional questions. See, for example, Wendo v. R. (1963) 109 C.L.R. 559 and Thompson v. R. (1989) 169 C.L.R. 1.
[12]It is unnecessary for me to decide whether it was inevitable that they would be so satisfied.
[13][1996] A.C. 1 at 38E-39F. See also 6-10 per Laws, J.

To speak of a "presumption" that a child under 14 is doli incapax accords with long usage, but it obscures the simplicity of the common law rule properly understood.[14] In the case of an accused person of or over the age of 14, the Crown does not have to prove that he or she knew that his or her conduct was seriously

wrong. The question does not arise. In the case of an accused person under that age, but not under the age of 10, the Crown does have to prove such knowledge. That is all that is meant by the presumption. It is like other rebuttable presumptions that do no more than indicate on whom the burden of proof of a particular fact lies. When it is understood in that way, there is no circularity or inconsistency in saying that the act or acts constituting the offence, in conjunction with the child's age, may be sufficient on their own to discharge the onus. The authorities to the contrary are wrong in principle and should not be followed.[15] The absurdities to which they lead are illustrated by the English cases after C v. Director of Public Prosecutions.[16]

[14]The language of presumption is wisely eschewed in s.4N of the Crimes Act 1914 (Cth) and s.7.2 of the Criminal Code (Cth). Sections 4N(2) and 7.2(2) correctly state the common law.

[15]I doubt that this point was in issue between the parties in R. v. CRH (unreported, New South Wales Court of Criminal Appeal, 18^th December 1996). The main focus of the judgments is on knowledge that the conduct is seriously wrong, not just naughty or disapproved of by adults.

[16]See Sir John Smith's commentaries on A v. Director of Public Prosecutions and H v. Director of Public Prosecutions in [1997] Crim.L.R. 126-127 and 129.

It is unnecessary for me to express a view on the other grounds. I would grant the application for leave to appeal against conviction, allow the appeal, quash the convictions and direct a new trial to be had on counts 1 to 7.

BATT, J.A.:

I have had the benefit of reading in draft the reasons for judgment of Callaway, J.A. and those of Cummins, A.J.A.

I agree with their Honours’ reasons and conclusion on ground 4.

I agree that the doli capax rule should be understood in the manner explained by their Honours. I further agree with Cummins, A.J.A. that, had the jury been instructed on that rule as so explained, conviction on counts 1 to 4 was inevitable, so that the proviso to s.568(1) of the Crimes Act 1958 applies and ground 5 fails.

On the issue that divides their Honours, namely, whether the material relating to the allegations of jury interference and the trial judge’s decision not to discharge the jury resulted in a miscarriage of justice, I find myself in agreement with

Cummins, A.J.A. In my judgment, a fair-minded lay observer with knowledge of the material objective facts would not entertain an apprehension that the juror in question might not bring an impartial and unprejudiced mind to the resolution of the matters before him. Nor, in my respectful opinion, would such an apprehension be reasonable.

I agree generally with the reasons given by Cummins, A.J.A. for his conclusion on this issue, but add the following. The question for decision is as to the apprehension that the lay observer might entertain, not about the presumably hostile JH, but about the juror. In other words, one is concerned with the effect of JH’s conduct upon the juror. In that regard, accepting the truthfulness and accuracy of JH’s statements as to what he did and did not do, the objective facts include the fact that he did not speak to the juror otherwise than by the single mouthed word; and there is no suggestion of any communication in writing or by gesture or through an intermediary. Now, it is fundamental to the concept of communication that the sender’s message be received. Whilst I would make no presumption or assumption as to the ability or inability of the juror in question to lip-read the single mouthed word, there is no evidence that the message thereby intended was received by the addressee of it, for, to my mind, a smile and a wink by no means necessarily betoken that. They are equally consistent with the recognition of a former fellow pupil or a friendly disposition on the juror’s part or an embarrassed response in the public eye. But, even if it be assumed that the mouthed message was received and understood, in my view, it is not realistic or reasonable to conclude that the one-word attempt by a single person at influencing the juror had succeeded or might, as a real possibility[17], have succeeded. I cannot accept that a fair-minded lay observer might apprehend that as a result of the momentary exchange the juror had succumbed or might have succumbed to the attempt to influence him. The observer would, in the absence of evidence of weakness or delinquency on the juror’s part, credit the juror, I consider, with greater moral fortitude. The observer would not be bound to accept the correctness of JH’s claim or belief that he had succeeded in influencing the juror when what he did and what the juror did in response are known. JH’s injunction to the complainant not to tell anyone about what he had told her is, to my mind, properly to be understood merely as a recognition of the wrongfulness of his conduct.
[17]Ebner v. Official Trustee in Bankruptcy (2000) 205 C.L.R. 337 at [7], where it is stated that the question is “one of possibility (real and not remote), not probability”.

If I am in error in the conclusion to which I have come, it seems to me that it will be relatively easy for persons concerned about the likely verdict of a particular jury to procure its discharge or the quashing of its verdict by an appellate court.[18]
[18]Compare the point made in R. v. Boland [1974] V.R. 849 at 866, a case of communication with a juror.

On grounds 3 and 6 to 9, with which only Cummins, A.J.A. found it necessary to deal, I agree with his Honour’s conclusions and, subject to what follows, with his reasons. I also agree with his proposed disposition of the application.

Cummins, A.J.A. sets out under ground 7 the part of her Honour’s charge dealing with inferring the third and final element of rape, the guilty mind of the applicant. The passage concludes her Honour’s charge on that element. The last sentence of it commences, “Again, in the circumstances of this case …”. That is a reference to a somewhat similar passage at the conclusion of her Honour’s charge on the second element, the absence of consent. Her Honour had said:

“The prosecution says that you can be readily satisfied from the evidence of [the complainant] that she did not give consent either by words or conduct to any of the acts of sexual penetration. The accused’s response to those allegations of rape in the record of interview is that they never happened, that is, he does not say, ‘I did it with her consent’, he says, ‘I didn’t do it at all.’ Accordingly in this case once you are satisfied beyond reasonable doubt as to the first element of sexual penetration then you will be readily satisfied as to the second element, namely that [the complainant] did not consent to such act or acts of sexual penetration.”

This passage refers to “this case”, which I take to mean “the circumstances of this case”, which are the words used in the later passage quoted by his Honour and referred to above. Counsel for the applicant before us expressly stated that no

complaint was made about the passage I have quoted, and that would appear to be, as I would infer, because her Honour was in the concluding portion of it speaking not of an inference but of the jury’s being “readily satisfied” (scil., beyond reasonable doubt) by the evidence to which she reminded the jury the prosecution had referred as enabling them to be “readily” so “satisfied”. Her Honour was saying that, if they were satisfied as to the first element, since the defence case did not present material suggesting that the complainant had consented they could be readily satisfied as to the second element, that is, find it as a matter of fact.

The tenor of the concluding sentence of her Honour’s charge on the third element is, however, different, despite the word “Again”; for it deals with an inference. To my mind, the word “Again” was used because both passages turn on “(the circumstances of) this case”. I would not, with respect, describe the last sentence of the passage quoted by his Honour as conventional, and I note that senior counsel for the respondent, while supporting its correctness, stopped short of including it in that which he described as orthodox. Nevertheless, as I understand the last sentence, her Honour was not saying that the inference was open from mere proof of the first element (penetration). Rather, as the reference to “the circumstances of this case” shows, she was saying that, if the jury accepted the complainant’s evidence as to the circumstances of the penetration in the count of rape they were considering, then it was open to them to infer a guilty mind on the part of the applicant. In my opinion, there was no error in that, as the more detailed reasons of Cummins, A.J.A. demonstrate. It is significant that, as his Honour notes, no exception was taken to the passage.

CUMMINS, A.J.A.:

This is an application for leave to appeal against convictions on four counts of indecent assault and on three counts of rape sustained by the applicant in the County Court sitting at Geelong in December 2000. The applicant had been presented before a jury on an eight count presentment. The first seven counts were the counts upon

which the applicant was acquitted. The victim in each count was the same. The victim was the applicant's younger sister.

The seven offences occurred over a 2½ year period, from 1 February 1988 (at the earliest) to 20 July 1990 (at the latest), and when the victim was 12 to 15 years of age and the applicant was 13 to 16 years of age. The applicant was 15 months older than the victim. They had the same natural parents. The applicant and the victim were their only children. The parents were divorced ten years before the first offence. At a number of times, residing at the home where the offences occurred were the applicant, the victim and their mother. At other times were other adults and the two children. At the times of the various offences they resided progressively at Grovedale, Newcomb and Clifton Springs via Geelong and at Shepparton in northern Victoria. The eighth count, upon which the applicant was acquitted, was of rape on 23 July 1995, five years after the last of the offences. It was the only count with a precise single date. The other seven counts were 'between dates' counts.

The applicant was convicted on the following counts:

(1)indecent assault at Grovedale between 1 February 1988 and 1 July 1988 of the victim under the age of 16 years;
(2)indecent assault at Newcomb between 1 September 1988 and 30 November 1988 of the victim under the age of 16 years;
(3)rape at Newcomb between 1 September 1988 and 30 November 1988 by introducing an object manipulated by him into the victim's vagina without her consent;
(4)rape at Newcomb between 1 October 1988 and 30 November 1988 by introducing an object manipulated by him into the victim's vagina without her consent;
(5)indecent assault at Clifton Springs between 1 September 1989 and 30 October 1989 of the victim under the age of 16 years;
(6)indecent assault at Shepparton between 1 May 1990 and 20 July 1990 of the victim under the age of 16 years; and
(7)rape at Shepparton between 1 May 1990 and 20 July 1990 by introducing his penis into the victim's vagina without her consent.

The applicant's defence was that he did not commit any of the sexual acts alleged against him.

Upon conviction and after hearing a plea on behalf of the applicant, the learned Judge on 14 December 2000 sentenced the applicant as follows: on each of the indecent assault counts (counts 1, 2, 5 and 6), three months' imprisonment; on each of counts 3 and 4 (rape), eight months' imprisonment; and on count 7 (rape) eleven months' imprisonment. On counts 3 to 7 the applicant was sentenced as a serious sexual offender. After making orders as to cumulation, the total effective sentence imposed by Her Honour was three years' imprisonment. Her Honour ordered pursuant to s 27 Sentencing Act 1991[19] that the whole of that term of imprisonment be suspended for 3 years. The applicant had been on bail prior to the trial and remained so during the trial. The applicant had no prior convictions. On the plea both the victim and her mother, through the prosecutor, asked that no immediate custodial sentence be imposed upon the applicant. The offences were reported by the victim on 13 April 1999, first to her mother and then to police. After police investigation, the applicant was arrested and charged on 4 January 2000. The applicant was 26 years of age at the time of trial. He had been born on 12 October 1974 and the victim on 10 January 1976. The victim was 24 years of age at the time of trial.
[19]Her Honour referred to s 31 but doubtless she meant s 27 (transcript p. 363)

There is no application for leave to appeal against sentence.

Following sentence on 14 December 2000, notice of application for leave to appeal against conviction was filed on 20 December 2000 upon the following grounds:

(1)that the Judge erred in failing to conduct an enquiry into allegations of interference with the jury;
(2)that the Judge erred in failing to discharge the jury following allegations of improper communications with the jury;
(3)that the Judge erred in directing the jury as to how it could use evidence of good character; and
(4)that the verdict is unsafe and unsatisfactory.

Twenty-one months later, on 19 September 2002 by leave a further ground of proposed appeal was added, namely:
(5)that the Judge erred in that she failed to charge the jury in relation to the presumption of doli incapax for counts 1 to 4 on the presentment.

One month later again, on 30 October 2002 by leave a further two grounds of application were added, namely:
(6)that the Judge erred in not charging the jury on the issue of the applicant's state of mind in relation to the consent of this complainant; and
(7)that the Judge erred in charging the jury that the jury would be entitled to infer the guilty mind of the applicant if penetration were proved on the rape counts.

Then on 3 March 2003, by leave a further two grounds of application were added, namely:
(8)that the Judge erred in charging the jury in relation to consent and indecent assault as the applicant was not more than two years older than the complainant; and
(9)that the trial miscarried due to the combination or aggregation of the defects identified in Grounds 1 – 8.

Thus the final two grounds of application for leave to appeal against conviction were filed some 2¼ years after conviction and sentence. At trial the applicant was represented by experienced counsel. Different counsel appeared for the applicant before this Court.

The evidence of the offences was that of the victim. In summary her evidence was as follows:

(a) Count 1 (indecent assault):
Between February and June 1988 the victim, the applicant, their mother and her mother's then partner lived in a house in Grovedale. The victim was aged 12 years at the time and was in Year 7 at school. On one Saturday when her mother was attending an Alcoholics Anonymous meeting and the victim and the applicant were home alone, the applicant came into her bedroom. It was during the afternoon. The victim was wearing tracksuit pants or leggings which ended upon the floor. She could not remember how. Whilst she was lying on her bed the applicant was sitting on her bed leaning towards her feet area. He put his fingers inside her vagina, moving them around. She did not want him to do that. She did not say anything because she was too scared and felt inferior to him. She had always had low self-esteem and always thought the applicant was better than her. This was the first occasion anything like that had occurred. This incident lasted a few minutes and then the applicant left the room. She did not report the incident to their mother because she thought their mother favoured the applicant over her. She thought her mother's reaction might have been anger or disbelief. The victim also stated in cross-examination that she feared the applicant would hit her if she made a complaint.
The victim also stated that there was another incident during the same period. The circumstances of the offending were the same. This was not the subject of any specific count.

(b) Count 2 (indecent assault):
Between September and November 1988 the victim and the applicant were residing with Roberta Berger, her son, and her partner, Brian Brabham in a unit at Newcomb. One evening when Mrs Berger and Mr Brabham were attending an Alcoholics Anonymous meeting, and Mrs Berger's son was visiting his father in Melbourne, the applicant and the victim were home alone. It was a weeknight. The victim was watching television in the loungeroom. She was again wearing tracksuit pants. Her undergarments were removed. She could not remember how they came off. The applicant placed his hands around her vagina on the outside, and then on the inside.

(c) Count 3 (rape):
This occurred immediately following the indecent assault which was the subject of Count 2. After that had occurred in the loungeroom, the applicant left the room and returned with a vibrator which the victim believed he obtained from Mr Brabham and Mrs Berger's bedroom. During the period of the applicant's absence the victim stated she froze, unable to move. The applicant then placed the vibrator into the victim's vagina, moving it around in a circular motion. She did not want him to do that. The vibrator was inserted in her vagina about 1 to 1.5 inches. Her hymen did not tear. She could not remember for how long, and thinks it was turned off. She did not say anything but just lay there and cried. Her legs were slightly open. She could not remember whether the applicant said anything. She said it felt like her stomach was being ripped out. She complained about a sore vagina several days later to her mother, and then received medical attention for thrush.

(d) Count 4 (rape):
This occurred in the Newcomb unit approximately one month after the first rape involving the use of the vibrator. It was a repetition of the circumstances of the first rape. Mr Brabham and Mrs Berger were again attending an Alcoholics Anonymous meeting, and Mrs Berger's son, Jonathon, was away in Melbourne visiting his father. The incident again occurred in the loungeroom. The victim was wearing tracksuit pants (or leggings) and a top, and the applicant again inserted the vibrator into her vagina. She did not want that to happen. The victim again did not say anything and could not remember if the applicant said anything. She was too frightened to tell anyone. She was frightened of being disbelieved. She was crying during the incident. In cross-examination the victim agreed she did not tell police in her original statement about this incident with the vibrator. She said she was asked to make a "general" statement on the first occasion, and in her second statement (where she mentioned the use of the vibrator) she provided more specific details.

(e) Count 5 (indecent assault):
This occurred in September to October 1989 when the victim, the applicant and their mother were residing at Clifton Springs at the home of their mother's new partner, Robert Clarke and Mr Clarke's daughter. One evening between 8 and 9 p.m. the victim and the applicant, who were sharing a bedroom, were in their separate beds. The victim was wearing a nightie and underpants. The applicant pulled back her doona and sheet, pulled down her underpants, felt around her vagina, touching the outside and inside of her vagina with his fingers. The victim just lay there, and did not speak. The incident lasted no more than five minutes when the applicant left to go to the toilet. The victim put her underpants back on. Robert Clarke then came into the bedroom and asked was she all right. She told him "Yes, fine" and when the applicant came back and asked what Clarke wanted she said "Just to say goodnight". The victim did not tell anyone as she felt frightened of not being believed. She was scared that if she told anyone the applicant would then hit her or go further.

(f) Count 6 (indecent assault):
This occurred between 1 May and 20 July 1990 at Shepparton when the victim and the applicant were packing in preparation for their move back to Geelong. Their mother was in Melbourne at the time. The victim remembers being in her school uniform in the loungeroom when the next thing she knew she was on the floor, her underpants were removed by the applicant, and he then started to touch and feel around her vagina.

(g) Count 7 (rape):
This occurred between 1 May and 20 July 1990 at Shepparton immediately following the indecent assault which was the subject of Count 6. The victim said that this was her first experience of sexual intercourse. The applicant inserted his penis into her vagina and eventually ejaculated. She was not consenting to what was happening to her. The applicant was on top of the victim during the incident. Neither the victim nor the applicant said anything. She was crying during the incident. She was hurting throughout the incident which lasted five to 10 minutes, and when she had a shower immediately afterwards she noticed a mixture of blood and semen in her vagina. Again she did not complain to anyone. She stated she felt inferior to the applicant as he often would adversely comment upon her weight or learning difficulties at school. She also felt intimidated.
In cross-examination the victim stated she told police that there were three or four more similar incidents of sexual abuse at Shepparton but she was unable to be clear about the details. The timing and place of the offending was unclear. There were no counts reflecting this activity.

(h) Count 8 (rape):
This count related to a charge of rape alleged to have occurred on 23 July 1995, being the day after the complainant's mother's 40^th birthday. The complainant said she was practising on her guitar in her bedroom. The applicant complained about her playing and she responded that she could do what she liked in her own bedroom.
The applicant then hit her across the side of the head quite forcefully and the next thing she remembered was being naked on the bed and the applicant having sexual intercourse with her until he ejaculated. The complainant's clothes were at the side of the bed. She did not say anything to him but thinks she was crying. She again had a shower after the incident. She was scared during this incident. Again, she did not complain to her mother.
The applicant denied the complainant's evidence. He stated that the complainant had been annoying him that night and that she then fled to her bedroom and barricaded herself in. The applicant broke the door off the hinges and spent the night trying to have the door fixed before his mother returned. The applicant stated that Ms McE was also present. Ms McE in evidence confirmed the breaking down of the door and the attempt to mend it on the day after the mother's fortieth birthday.

The complainant and the complainant's mother both gave evidence that on the day this rape was said to have occurred, there was no breaking of the door. Both witnesses stated that this incident had occurred two years earlier in 1993 and that the Ms McE must have been confused as to the date. The complainant's mother conceded in cross-examination that she told the police that the complainant had told her that the applicant had broken the door down on the day after her 40^th birthday and raped her. The complainant's mother then stated she was wrong in what she had put in her statement and that she had confused the events due to the nature and number of allegations.

At the trial evidence was led of the relationship between the victim and the applicant at the time of the relevant offending. The applicant often teased the victim about her substantial weight. The victim was slightly dyslexic and slightly illiterate. She had attention deficit disorder. She had low self-esteem and felt inferior to the applicant. The applicant had also been involved in scuffles with the victim. They had normal sibling rivalries. The victim's mother suffered from chronic alcoholism at the time of the victim's birth, as a result of which the victim was born with alcohol foetal syndrome. The victim was disruptive as a child, and exhibited signs of elevated emotion, confusion and agitation. She experienced severe learning difficulties whilst at school. She was sexually assaulted as a child when 8 years of age. She received counselling over that matter. She remained hurt and angered by it. She required surgery to repair damage caused by the offender. The applicant was described by his mother in evidence as intelligent and who excelled at school. The mother gave evidence that the applicant was "her whole life" and that her relationship with the victim was "very strained". The mother stated that nothing else mattered to her but the applicant. The mother had been an alcoholic and had had a nervous breakdown.

After the victim informed her mother about the offences, the mother confronted the applicant who denied the offences. The applicant stated he could get anyone female he wanted and castigated the complainant as fat and ugly. Upon being confronted with the allegations, the applicant looked away and appeared sad. The applicant was also described as a sensitive boy, who would often cry. The applicant was described by his mother as a child that did not lie.

The victim first reported the offences to her mother on 13 April 1999 and then to local police. The applicant was interviewed by police at Geelong on 11 September 1999. He was then 24 years of age. He answered all questions put to him and wholly denied the allegations put to him. After a police investigation, on 4 January 2000 he was charged with the offences.

As I have said, the applicant had no previous convictions.

The applicant gave evidence on his trial and denied that any sexual incidents happened. The applicant admitted having a strained relationship with his sister. He said that she seemed to be a problem child. He said that she used to tell a lot of lies about little things. He said he used to fight with his sister when they were children. He stated he cared for her as a sister but that it was difficult to be friends with her. He stated they called each other names. In cross-examination he stated that he called his sister hurtful names on occasions and was frustrated over her learning difficulties. He said his sister was often aggressive and that she would have reacted had he have sexually assaulted her. He said that he felt sorrow over the complainant suffering the sexual assault as a young child.

The applicant also was charged with 7 counts in relation to a one J.H. (a male). These counts were unconnected with the counts in relation to the applicant's sister. The J.H. counts were of gross indecency (1 count), sexual penetration with a child under the age of 10 years (5 counts) and of common assault. The counts related to the period 1 September 1988 (at the earliest) to 31 October 1988 (at the latest) and were all 'between dates' counts. At the Geelong sittings of the County Court in November 2000 before Her Honour a jury trial of the applicant was held of the 7 counts in relation to J.H. The applicant was acquitted by the jury on all counts.

Four days later, before Her Honour the jury trial of the applicant in relation to his sister commenced. She gave evidence and was cross-examined by counsel below for the applicant over some 60 pages of transcript. It was put in cross-examination that no sexual incidents had ever occurred with the applicant and that the victim's evidence was "lies". The mother of the victim and of the applicant gave evidence for the prosecution, having been informed of her rights under s 400 Crimes Act 1958. The applicant gave evidence and was cross-examined. No other witnesses were called by the defence.

On the fourth day of the trial, Thursday, 16 November 2000, the jury retired to consider its verdicts at 12.41 pm. It was in deliberation until 4.18 pm, when its members were excused until the next day, the jury not being segregated, its members having been sworn or affirmed in accordance with s 51A Juries Act 1967 (the Act applicable to the trial). On 17 November 2000 the jury deliberated from 10.30 am to 4.06 pm, having asked two questions of the Judge during the day. On Monday, 20 November 2000 the jury deliberated from 10.30 am to 4.06 pm. It was during this day that the incidents occurred which are the subject of grounds 1 and 2 of the application. On 21 November 2000 the jury commenced its deliberations at 10.30 am and at 11.21 am returned verdicts of guilty on counts 1 to 7 and of not guilty on count 8.

I turn to Grounds 1 and 2 of the application.

Ground 1 is that the Judge "erred in failing to conduct an enquiry into allegations of interference with the jury". Ground 2 is that the Judge "erred in failing to discharge the jury following allegations of improper communications with the jury".

Monday, 20 November 2000 was the third day of jury deliberation. The applicant's counsel had returned to Melbourne and the applicant was represented (very ably, as the transcript reveals) by his solicitor. The jury had been in deliberation for over six hours. During the morning, a matter was reported to the learned Judge by the prosecutor, in the absence the jury, and discussion ensued, as follows:

"[PROSECUTOR]:    Can I inform Your Honour formally that just before 10.00 a.m. this morning, I received information in relation to a possibility that a person connected with the case, who wasn't actually a witness in this trial, J.H., the complainant from the previous trial, may have known a member of this jury and that J.H. who was present around and in the court at various stages from about Thursday lunch time last week and he may have had eye contact and possibly mouthed a word to this juror, apparently known to him.
Now, it is only a suggestion at this stage, Your Honour, and it comes from two sources, both of which sources I have spoken to directly in the presence of my instructor this morning. Those two sources were the [complainant's mother and the complainant] in this trial. The information I was given was firstly as to the events of Thursday afternoon, that J.H. was present from approximately lunch time on Thursday, until after the jury were sent home, the oath having been administered on Thursday afternoon. He was also present in court during the administration of the oath, which to my recollection took place at about 4.30 or thereabouts, Your Honour, in the afternoon. [The mother] told me that she was sitting near J.H. and she saw him look at a young male juror and smiled at the young juror and that the juror winked at J.H. Her daughter told me that after they walked out of court, she said that J.H. said to her something to the effect of, 'You are going to win, just trust me' and she asked him what did he mean and did he know one of the jurors and he said, 'I'm not saying nothing' and then they all went home.
On the Friday morning, Your Honour, there were no events of any significance apparently. After lunch downstairs, during the luncheon break, there was a group of people which included J.H. and the complainant, the two of them had a conversation together, apparently out of earshot of the others and she asked him directly, whether he knew one of the jurors and he said 'Yes' and she asked him, 'How do you know we're going to win?' and he, J.H., claimed that as the jury were leaving the court on the Thursday afternoon, after the administration of the oath, he had, he claimed, mouthed the word 'convict' to the juror and he said the juror smiled and winked and so forth. She asked him had he actually talked to the juror and he said 'No'. But he did say to her, 'Don't tell anyone about what he told her'.
Now, Your Honour, the position is that as from now, as from the receipt of this information, J.H. will not be within a bull's roar of the jury, that will be a certainty when they are in the court, he will be kept well away, in fact, he will be sent away from the court shortly, he is at court just outside the court.
Initially Your Honour, I was of the view that an enquiry would be appropriate and it's really a matter for Your Honour, I suppose at the end, whether Your Honour wished to hear from these witnesses or indeed wished to hear from J.H. But it has been pointed out to me Your Honour something that I did overlook, that J.H. would have to be warned if he were called as a witness or cautioned in fact about his right and probably he would have to be offered the right to consult with a solicitor in the circumstances before he would be asked any questions effectively, so that might render the whole procedure a bit pointless, as indeed it was pointed out to me Your Honour.
I merely bring this to the court's attention pursuant to my duty prosecuting the case. I don't suggest, Your Honour, at this stage that it is anything more than a suggestion and bearing in mind my experience of J.H. and Your Honour's experience of him as a witness in the last case, the possibility of J.H. making these claims to promote himself or indeed to exaggerate the real situation completely out of proportion, in fact looms large I would respectfully suggest, Your Honour. And, Your Honour, it seems that from what I understand, Your Honour, there has been no suggestion that any juror has been sought to be overborne by J.H. I am not aware of any claims of influence or whatever being made to Your Honour and it may well be on the fact of the material that I have seen, although the Crown has got no reason to doubt what these two obviously honest people say happened, but they may have slightly misinterpreted what happened in court. So at this stage, Your Honour, I merely bring it to the court's attention.
I note that the time is coming up, well, it's over six hours and I assume Your Honour may be considering saying something to the jury in terms of the overall state of their deliberations at this stage. As I say, I am in Your Honour's hands as to precisely, well, I am prepared to call these people as witnesses if that's the appropriate course that Your Honour sees, but perhaps the better view might be simply to let things rest for the moment. All of them are outside court but separated and will be here in the foreseeable future, Your Honour.
HER HONOUR:      Yes, good, thank you for that. Do you wish to respond?
[APPLICANT'S SOLICITOR]: Your Honour, I make application that the jury be discharged and this allegation is obviously of the most serious kind and given what has been indicated to you by the prosecutor, Your Honour, it can be seen to be polluted and justice has to be seen to be done. The test is a high degree of need and it is my submission that's the situation here and I would ask Your Honour that the jury be discharged. As Your Honour pleases.
HER HONOUR:      I think I can put on the record that on Thursday after the first occasion when J.H. was in court, that one of the jurors and I suspect this is the same juror that we are talking about, the youngest juror indicated to my Tipstaff that he thought he knew the person that was identified as J.H., as having been to school or at the same school as him. He did not indicate that he knew who he was or that he was a friend or knew his association with the case or knew anything about the case because of that. Merely as a matter of prudence on his part, he pointed out that he recognised that person as somebody who had been to school at the same time when he was at school. This was not raised with you at the time, because there was no other knowledge that was imparted on the part of that juror and J.H. was obviously not a witness or otherwise directly associated with this case.
Now, given that that juror has made that much known and has not throughout Friday or certainly this morning, in any way indicated that there was a contact of the type that has been now raised, I think two matters follow. First, I have the same concerns about any formal enquiry being made of J.H., for the obvious reason that would really not be productive of the evidence that we are seeking and secondly, I think that in the circumstances, there is not within the terms of the test that is required in these circumstances, there is not a sufficiently high degree of need demonstrated, just on the basis of the indications that has been shown to date, that would warrant a discharge of this jury. It is something that may need to be monitored in terms of anything that might be raised by that juror. I think it would be not warranted to make an enquiry of that juror at this stage and I think we should just see how things develop."

Further discussion ensued, in which the applicant's solicitor asked that the matter be investigated by the police. After a brief adjournment, the solicitor (having spoken by telephone to counsel in Melbourne) renewed the application for discharge of the jury, essentially on the same grounds as before. The prosecution opposed the application. Her Honour refused it, saying that in the circumstances "there has not been demonstrated a high degree of need that is necessary at this point in time in the trial". Her Honour then gave the jury an unexceptionable Black[20] direction – making no reference to the J.H. incident the previous Thursday – and the jury continued its deliberations. At 4.06 p.m., the jury returned into Court. The foreman stated:

"Your Honour, I think we have finished our discussions for the day and want to come back in the morning to consider."

Accordingly the jury was excused overnight. The next day, at 11.21 a.m., verdicts on all counts were returned as I have stated. The jury was then finally discharged.

[20]Black v R (1993) 179 C.L.R. 44.

Before this Court it was agreed by counsel that Grounds 1 and 2 of the application stood together and that the question is whether the material relating to the allegations of jury interference, and the learned trial Judge's decision not to discharge the jury, resulted in a substantial miscarriage of justice.[21]
[21]Crofts v The Queen (1996) 186 CLR 427 at 441 per Toohey, Gaudron, Gummow and Kirby JJ.

The essential criterion for resolution of that question is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the juror in question might not bring an impartial and unprejudiced mind to the resolution of the matters before him.[22] In considering this question, I assume (as counsel before us agreed and as appears most likely) that the juror whom J.H. sought to address and the juror who spoke to the Judge's tipstaff is the same person. I also assume (for this purpose) that J.H. was truthful about his attempted address to the juror. Such an assumption, although perhaps erroneous, is prudent and necessary.
[22]Webb v The Queen (1994) 181 CLR 41 at 47 and 53 per Mason C.J. and McHugh J., at 57 per Brennan J (as then he was), at 68-69 and 71 per Deane J., and at 87-88 per Toohey J; Livesey v New South Wales Bar Association (1983) 151 C.L.R. 288 at 293-294 per curiam; and Rozenes v His Honour Judge Kelly [1996] 1 V.R. 320 at 329 per curiam.

I am affirmatively satisfied that such an observer would not entertain such an apprehension.

That is so for the following reasons. First, there was no material that the juror understood, or might have understood, the word that J.H. mouthed. Presumably the juror was not a lip-reader. Instant acknowledgement of a request to convict – conveyed by winking – is highly unlikely. If the juror thought J.H. was speaking, it is more likely the juror would have thought J.H. was mouthing "hello" or some greeting or acknowledgement, than the word "convict". Second, there is material that the juror did not know J.H.'s identity, other than that the juror thought he may have been at school with J.H. There is no material that the juror had any idea that J.H. had been in the previous trial, had been a complainant in relation to the applicant or had any connection with the present trial. Third, and significantly, there is material that the juror was a responsible person acting consonantly with his oath or affirmation as a juror. It was the juror who of his own initiative, on the Thursday afternoon, informed the Judge's tipstaff that he thought he knew the person who was J.H. and how. Further, it is highly unlikely that the juror would himself initiate such a communication to the tipstaff and at the same withhold that he thought or knew the person had mouthed the word "convict". It is likely that the juror thought J.H. was indicating that he knew the juror. The fact that the juror did not mention to the tipstaff that J.H. had mouthed some word at him and that he had smiled and winked at J.H. indicates the juror thought those matters were insignificant and not worthy of report – merely a passing acknowledgment between two people. In the circumstances the fact that the juror's response to J.H. was smiling and a wink is, shorn of other pregnant factors, inconsequential. It would make no difference had the juror's response been a nod, a thumbs-up or other colloquial communication. Fourth, the juror had sworn or affirmed that he would give a true verdict according to the evidence. Plainly the jury worked long and hard – indeed into the next week – on its verdicts, a matter confirmed by the statement of the foreman to the Judge on the late Monday afternoon. There is no material to suggest the juror was not acting consonantly with his oath or affirmation. Further, upon the jury being empanelled on 13 November 2000 the learned Judge had given unexceptionable directions to the jury as to the performance of its proper function, including the following:

"But most importantly it is you twelve members of the community who have been chosen to decide the case, no one else. I do not decide the case, you decide it. It is your decision that is required and you will recall only a few moments ago you took an oath to give a true verdict according to the evidence, and so it would obviously be undesirable that your judgment should in any way be influenced by anything that might be said to you outside the court. So please do not discuss the case with anyone, except of course amongst yourselves.
There is always the possibility or risk that someone might inadvertently approach you about the case or mention something to you about the case. If that should occur, and I hasten to add I have no reason to suppose that it will, but if that should occur, please bring it to my attention at the earliest opportunity. Indeed, members of the jury, if anything occurs during the course of this trial that troubles any of you or concerns any of you, do not hesitate to let me know, because as the trial Judge I am here to assist you as much as I can."

Fifth, the verdicts of the jury were unanimous, and the jury acquitted the applicant on Count 8 – a rational discrimination as I shall come to. All in all I consider that the fair-minded informed observer would not entertain the relevant apprehension stated by the authorities to which I have referred.

The learned Judge in my view correctly directed herself. It was inappropriate to question J.H. (whose conduct was subsequently investigated on behalf of the Acting Chief Commissioner of Police and reviewed by the Acting Director of Public Prosecutions pursuant to s 69A(5) Juries Act 1967 and no action was taken). Plainly the Judge could not question the juror.

The integrity of the jury process is essential. It is not negotiable. It is not to be deflected or undermined by convenience. If there were a risk as to its integrity the jury should have been discharged. In my view there was no such risk.

For those reasons I consider that Grounds 1 and 2 of the application fail.

Ground 3 is that the Judge "erred in directing the jury as to how they could use evidence of good character".

As I have stated, the applicant had no prior convictions and was 26 years of age at the time of trial. In cross-examination, the applicant's mother agreed that to her knowledge the applicant had never lied to her. In cross-examination, Detective Acting Sergeant Purcell stated that the applicant had "no prior convictions". In chief, the applicant was asked by his counsel:

"You've got no prior convictions? … No, never been in trouble."

(Less than a page later the applicant stated "My sister seemed to be a problem child"). No witnesses as to character were called by the defence.

Having properly directed the jury that there was no material capable of constituting corroboration and that it was dangerous to convict on uncorroborated evidence, the learned trial Judge proceeded to the matters of the character and credit of the applicant and directed the jury thus:

"I should also tell you something about the fact that the accused has given evidence on oath. You should also understand that there is no obligation on the accused to do so. He could have declined to say anything and, had he done so, no-one could have made any comment about it. An accused has the right to remain silent. The accused rejected that course and chose to give evidence. By doing so he pledged his oath to tell the truth in his evidence.
More importantly perhaps he, by choosing this course, the accused submitted himself to cross-examination, which is a means used by lawyers to extract the truth. There are two things to bear in mind about this. First, a guilty person might decide to attempt to brazen it out in the witness box in the hope that he will be more likely to be believed if he takes the risk of cross-examination than if he dodged it. Secondly, however, an innocent person can really do no more than choose this course, for by doing so the accused says in effect: this is what I say happened. I pledge my oath to it, and you can cross-examine me about it.
You should weigh both these comments when considering what weight you should give to the accused's evidence. You should have regard to this evidence in the same way as you would any other witness's evidence, but remembering that the accused may be under some strain, under more strain than other witnesses, because he is the accused. You should also remember that by going into the witness box the accused does not assume any burden of proof. The burden of proof still rests on the Crown.
In this case the accused has led evidence that he has not been convicted of any crime in the past and is of good character. Such evidence is led in disproof of guilt. It bears directly on the probability of the accused having committed the crime or crimes. Of course good character cannot alter proven facts. However, it is evidence that you should consider, along with other evidence, in reaching a conclusion as to whether the facts relied upon by the Crown have been proved to your satisfaction beyond reasonable doubt.
Evidence of good character raises a presumption that the accused is incapable of committing the crime or crimes of which he is charged. Of course that presumption lasts only up to the point at which you find that, despite the accused's past good character, the Crown has proved beyond reasonable doubt that the accused did commit the crime or crimes of which he is charged. In this case you have been presented with two accounts of a series of events which differ markedly from each other.
Where there is word against word, as it is sometimes called, you might think that it is your function to determine whether [the complainant] or the accused is telling the truth. This is not the case. Your function is to determine whether the prosecution has discharged its onus of satisfying you beyond reasonable doubt that [the complainant] was assaulted by the accused in the manner alleged. Remember that the accused does not have to prove anything, and it would be wrong for you to convict him simply because you do not believe his version of events."

So far as it went, that direction was conventional. (Speaking for myself I find the use of the notion of a "presumption"[23] of incapacity unhelpful, and probably erroneous, but it is conventional in some judicial circles and has the benefit of being favourable to an accused). On behalf of the applicant, before this Court (and by way of exception below) it was contended that the direction was erroneous by omission in that it failed to direct the jury as to the use which evidence of good character may be put on the question of the credit of the applicant before the jury. It was put that that was especially important in a case of word against word. I must say that I consider a direction as to credit use of good character would have been justified. Although there were no witnesses as to character called by the defence, and although a direction as to credibility is discretionary in Australia[24] I think it would have been better, and fairer, had a credit direction been given. Directions as to character, where justified, should be plenary rather than limited. On the other hand, it could be said that Her Honour's direction was generous to the applicant in that the substantive direction as to unlikelihood of offending, deriving from lack of convictions more than a decade after the offences, had a tenuous if not anachronistic relationship with the applicant's behaviour at the time of the offences. In any event, as I have said, a direction as to credibility is discretionary. No error by Her Honour in the exercise of discretion has been shown. In my view Ground 3 fails.

[23]Deriving from R v Rowton (1865) Le & Ca 520 at 530, (1865) 169 E.R. 1497 at 1502 per Cockburn C.J.

[24]Melbourne v R (1999) 198 CLR 1 and Simic v R (1980) 144 CLR 319.

Ground 4 is that the verdicts are unsafe and unsatisfactory. This was not propounded as a ground of general review[25] but as founded upon inconsistency of verdicts by reason of acquittal of the applicant on Count 8. In my view there is no inconsistency. Count 8 related to an alleged offence more than five years after the last previous offence, was the only date-specific count, and was the subject of a direct conflict of evidence (as to the date and circumstances of the broken door). It is entirely feasible[26] that a jury might entertain a reasonable doubt as to Count 8 but no reasonable doubt as to Counts 1 to 7. On behalf of the applicant it was submitted in support of this ground that "there was a considerable delay in complaint for Counts 1 to 7". This was an unfortunate submission. There was an amplitude of evidence upon which the jury was entitled to conclude that the 12 to 15 year old victim was vulnerable, intimidated and marginalised and that the intelligent and favoured applicant was opportunistic. Silence was part of her suffering. This ground fails.
[25]As in M v R (1994) 181 C.L.R. 487.
[26]See MFA v The Queen (2002) 77 A.L.J.R. 139 at [35] per Gleeson C.J., and Hayne and Callinan JJ and at [89] per McHugh, Gummow and Kirby JJ.

Ground 5 is that the Judge "erred in not charging the jury in relation to the presumption of doli incapax for Counts 1 to 4". The words doli incapax mean incapable of crime. At common law there exists a rebuttable presumption that a child under fourteen years of age is incapable of crime. That presumption may be rebutted by evidence that the child knew the acts were seriously wrong. I shall refer hereafter to the matter as incapacity.

Ground 5 relates only to Counts 1 to 4. The applicant became 14 years of age on 12 October 1988. As to Counts 1 to 4, the earliest date on the presentment (Count 1, 1 February 1988) was eight months prior to the applicant's 14^th birthday, and the earliest date on Count 4 (1 October 1988) was 12 days before his 14^th birthday. The presumption of incapacity, with a "between dates" count, applies where at any discrete date between those dates the child was under 14 years, because the offence may have occurred on that date.

The applicant's defence at trial was that he had committed no sexual acts upon his sister. He gave evidence that he had "never been in trouble" and that his sister "seemed to be a problem child". The applicant's counsel repeatedly in cross-examination put to the victim that her evidence was "lies". No direction as to incapacity was sought by the applicant's counsel at trial. This is unsurprising. For the applicant to agitate the question of incapacity would very likely be counterproductive. Although, most unfortunately, the mother had had significant personal problems and the family appeared to have been dysfunctional, there was clear and undisputed evidence that the applicant was "very intelligent", "very clever" and "extremely sensitive" (this latter characteristic being elicited by the third question put by the applicant's counsel in cross-examination of the applicant's mother). A jury might recoil from the proposition that twelve days before his fourteenth birthday the applicant did not know that inserting an adult's vibrator into the vagina of his younger, isolated, vulnerable and crying sister was seriously wrong.

Further, and not insignificantly, the applicant's counsel at trial, who was experienced counsel, would have been conscious that the propounding of incapacity (that the prosecution had not proved that the applicant knew the acts were seriously wrong) would directly undermine the applicant's defence (that he was of good character and as such would not perform acts which were seriously wrong).

In the circumstance that a forensic advantage at trial was obtained by the applicant not agitating the matter of incapacity, this Court should be slow in acting upon such agitation first initiated on behalf of the applicant twenty-one months after his conviction and sentence.

The question, however, is whether the failure of the learned Judge to direct the jury as to the matter of incapacity on Counts 1 to 4 constitutes a substantial miscarriage of justice.

The absence of an incapacity direction does not necessarily involve the quashing of the verdicts in question: Sheldon.[27]
[27][1996] 2 Cr. App. R. 50.

The principle of age incapacity – traditionally expressed as a presumption – is part of the common law of Australia. It was stated with characteristic elegance and erudition by Bray C.J. in R v M.[28] It is a principle of great antiquity.[29] The enactment of Aethelstan[30] stated that robbers above the age of twelve ought not be pardoned. The Eyre of Kent stated that "an infant under the age of seven years, though he be convicted of felony, shall go free of judgment because he knoweth not of good and evil".[31] In 1338 the Year Book stated:
[28](1977)16 SASR 589.
[29]A.W.G. Kean, "The History of the Criminal Liability of Children" (1937) 53 Law Quarterly Review 364.
[30]VI, I, 1.
[31](1313-4) S.S. Vol. 24, 109.

"And it was said by the ancient law that no one shall be hanged within the age, nor shall suffer judgment of life or limb. But before Spigurnel it was found that an infant within age killed his companion, and then concealed himself, and thereupon he was hanged; for he said that by the concealment he could discern between good and evil, quia malitia supplet aetatem."[32]
[32]12 Lib. Ass. f. 37 pl. 30; Y.B. 12 Edw. III 626 (R.S.). The Latin means: malice supplements age.

It was not until as late as 1588 that a clear age below which liability did not apply was fixed. Lambard's Eirenarcha when first published in 1581 did not state an age. However the third edition, published in 1588, stated that there can be no conviction of
" … an infant under the age of twelve years, unless it may be by some evident token appear, that he had understanding of good and evil …"

In the seventeenth century, the age of discretion became fixed at fourteen. Kean, following Maitland in a droll if not postmodern observation states:
"The reason for this is that Coke dogmatised the results of the Middle Ages and subsequent lawyers took his word. Hale accepted the fourteen-line; his statement that absolute immunity ceases at seven removed any doubt which may have existed."[33]

Parish registers for the registration of baptisms began in the time of Henry VIII and were regulated by a canon of 1603. An abortive attempt at civil registration was made in 1653 by the Long Parliament. Kean concludes:
"Finally, Coke's account of the law was accepted, and restated by Hale, and the lines were fixed at seven and fourteen. They remained unchanged until 1933, when the Children and Young Persons Act raised the age of which there can be no criminal responsibility from seven to eight."[34]

[33]At 370.

[34]At 370.

To complete the story in England, judicial and academic views in the twentieth century waxed and waned according to theories of criminal justice from the retributive to the therapeutic. Then as the century neared its close, in 1994 Laws J in C(a minor) v Director of Public Prosecutions[35], in a judgment agreed in by Mann L.J. and later said by Lord Lowry to be a "bold and imaginative judgment"[36] held that the presumption of doli incapax was "unreal", "divisive and perverse", and "is no longer part of the law in England."[37] An appeal from that decision (a Divisional Court of the Queen's Bench Division) was upheld and the decision reversed by the House of Lords in C (a minor) v Director of Public Prosecutions.[38] Their Lordships, having subjected the presumption to sustained and critical analysis, held that the presumption was a rule of the common law. They held that it could only be abrogated by statute and that the time had come for parliamentary investigation, deliberation and legislation in relation to it. Then by section 34 Crime and Disorder Act 1998 it was provided:

"The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished."

In England the principle of ancient lineage was no more.

[35][1994] 3 W.L.R. 888; also reported in [1996] 1 A.C. at 4.

[36][1996] A.C. 1 at 40.

[37][1996] A.C. 4 at 9, 11 and 13 respectively.

[38][1996] A.C.1.

In my respectful view, abolition in Australia of the principle of age incapacity would be a retrograde action. Children should be protected by the mantle of the criminal law, not oppressed by it. The time of Aethelstan although not illuminated by the insights of modern developmental psychology well understood the humanity and justice of protecting children from the full rigor of the criminal law. The wisdom of such protection is manifest. Harper J in R (a child) v Whitty[39] (a decision favourably noticed by Lord Lowry in C (a minor) v. D.P.P. at 40) cited with evident approval a passage from Professor Colin Howard's Criminal Law:[40]

"No civilised society regards children as accountable for their actions to the same extent as adults."[41]

The ancient sense of justice and modern cognitive psychology come together properly to protect children in their development to adulthood. The "intermediate zone"[42] between 10 and 14 years is one of significant psychological, moral and personal development in children. The law should not be blind to its quality and character.

[39](1993) 66 A. Crim. R. 462.

[40]4^th ed., 1982, 343.

[41]At 462.

[42][1996] A.C. 1 at 26 per Lord Lowry.

A number of asserted defects and anomalies in the law of age incapacity were raised in the second half of the twentieth century, judicially, by commissions and academically, from an article by Professor Glanville Williams in 1954[43] to the judgment of Lord Lowry in 1995. Some of the criticisms are infected by the therapeutic theory of criminal justice whereby the coercive dealing with children as criminals is held a priori to be a benefit to them.[44] A number of criticisms go merely to procedural matters which can be resolved without abolition of the principle of age incapacity. The one anomaly I consider of real substance is the prohibition developed by the common law upon use of the mere facts of the offence as evidence capable of proving requisite knowledge in the child that the act or acts were seriously wrong.
[43]G. L. Williams, "The Criminal Responsibility of Children" 1954 Criminal Law Review 493.
[44]Thus Professor Williams ibid at 495: " … at the present day the 'knowledge of wrong' test stands in the way not of punishment, but of educational treatment."

I consider that the anomalies forcefully stated by Laws J in D.P.P. v. C. and reviewed by Lord Lowry in C (a minor) v. D.P.P. have come about not because of a flawed basal entity (the principle of age incapacity) but because of flawed development of it. If the perceived common law requirement that mere proof of the act charged cannot constitute evidence of requisite knowledge were removed, the substance of the anomalies would disappear. That requirement doubtless is founded upon the danger of circular reasoning. But proper linear analysis could have regard to the nature and incidents of the acts charged without being circular. What is required is the eschewing of adult value judgments. Adult value judgments should not be attributed to children. If they are not, there is no reason in logic or experience why the proof of the act charged is not capable of proving requisite knowledge. Some acts may be so serious, harmful or wrong as properly to establish requisite knowledge in the child; others may be less obviously serious, harmful or wrong, or may be equivocal, or may be insufficient. I consider that the correct position is that proof of the acts themselves may prove requisite knowledge if those acts establish beyond reasonable doubt that the child knew that the act or acts themselves were seriously wrong. Further, I consider that the traditional notion of presumption is inappropriate. I consider that the better view is that the prosecution should prove beyond reasonable doubt, as part of the mental element of the offence, that the child knew the act or acts were seriously wrong. Such a requirement is consonant with humane and fair treatment of children. It is part of a civilised society.

In Victoria, section 127 Children and Young Persons Act 1989 provides:

"It is conclusively presumed that a child under the age of 10 years cannot commit an offence."

At common law the traditional statement of the position was that between the ages of 10 and 14 years there was a presumption that the child is incapable of crime (doli incapax) but that that presumption may be rebutted by the prosecution.[45] The learned Judge in the present case should have instructed the jury (albeit briefly) on incapacity. That is because the question of incapacity arose as a matter of law. However, given the age of the applicant at the time of the offences charged (at the earliest date on count 1 he was 13 years 2 months of age, and the earliest date on count 4 was twelve days before the applicant became 14 years of age) and the relationship of the applicant and victim, I consider it would have been inevitable that the jury, properly instructed as to incapacity, would have found the requisite guilty knowledge in the applicant.

[45]R. v. M.(1977) SASR 598; R (a child) v. Whitty (1993) 66 A. Crim. R. 462.

Accordingly I consider that no substantial miscarriage of justice, as contemplated by the proviso to s 568(1) Crimes Act 1958 has occurred by the lack of direction by the learned Judge on the matter of incapacity in relation to Counts 1 to 4. I would dismiss Ground 5.

Ground 6 is that the Judge "erred in charging the jury on the issue of the applicant's state of mind in relation to the consent of the complainant". On behalf of the applicant it was submitted before this Court the element of awareness of the applicant that the victim was not consenting or might not be consenting was not the subject of direction in Her Honour's charge and that that omission was erroneous, particularly given the then age of the applicant.

As to the rape counts (Counts 3, 4 and 7) Her Honour's directions to the jury (transcript 220-222) were appropriate and conventional.[46] There was ample evidence upon which the direction could fix, including the use of an adult's vibrator and that the victim was crying during the offences. Unsurprisingly there was no exception to Her Honour's charge in this respect. This ground fails as to the rape counts.
[46]See Crimes (Rape) Act 1991, s.9(1) discussed below.

Ground 7 is that the Judge "erred in charging the jury that (it) would be entitled to infer the guilty mind of the applicant if penetration were proved on the rape counts". In the charge Her Honour, having correctly directed the jury as to the element of the applicant's state of mind on the rape counts, continued:

"You must bear in mind that when considering this element of guilty mind that it is the accused's state of mind which must be proved by the Crown. The question is not what would you, if you were in the accused's position, have realised that she was not consenting or might not be consenting. The question is did this accused realise she was not consenting or might not be consenting? Again, in the circumstances of this case if you were to find the first element proven [penetration] you would be entitled to infer this final element of a guilty mind of the accused."

This last passage ("Again, …") may be a little blunt, but it is not erroneous in law. Her Honour had previously given the jury full and proper directions as to inferences. The presently impugned passage (no exception was made below) was that the jury "would be entitled to" – not "should" or "would" – infer. On the rape counts that inference was plainly open, given the circumstances including the relationship of the applicant and victim as natural brother and sister, the applicant's use of an adult's vibrator (Counts 3 and 4), penetration (Count 7) and the fact that the victim was crying on each occasion. If the jury accepted the victim's evidence – which the jury was entitled to do – it would be wholly unreasonable for the jury to have a doubt that the applicant was aware the victim was not consenting. There was no evidence or statement from the applicant that he had any such ignorance. His evidence and police statement were that he never performed such acts. This ground fails.

In my view none of the grounds of the application in relation to the counts of rape has been made out.

I turn to Grounds 6 and 8 in relation to the counts of indecent assault (Counts 1, 2, 5 and 6). Ground 6 is that the Judge "erred in not charging the jury on the issue of the applicant's state of mind in relation to the consent of the complainant". Ground 8 is that the Judge "erred in charging the jury in relation to consent and indecent assault as the applicant was not more than two years older than the complainant". As I have said, these grounds were filed some 2 years after conviction and sentence.

On the matter of consent, unfortunately it appears that Her Honour and counsel overlooked the provisions introduced by s 5 Crimes (Sexual Offences) Act 1980, as to indecent assault upon a person under the age of sixteen years. Those provisions were in force from 1 March 1981 to 4 August 1991 and they applied to the indecent assault counts, which related to the years 1988 to 1990. By s 5 Crimes (Sexual Offences) Act 1980 the Crimes Act 1958 was amended to insert s 44(3) in relation to a charge of indecent assault of a person under the age of 16 years. Section 44(3) provides that the consent of that person

"is no defence to the charge unless, at the time the offence is alleged to have been committed –
(c)the accused was not more than two years older than the person."

In Her Honour's charge, on the indecent assault counts Her Honour directed the jury that:

"Consent, if the victim is under 16 years of age, is not a defence to the charge. … Her age at the relevant times is not in dispute, therefore you can be readily satisfied as to this element of the crime."

The applicant was born on 13 October 1974 and the victim was born on 10 January 1976. He was less than two years older than she. Accordingly Her Honour's direction that "consent … is not a defence to the charge" was erroneous. Further, the error was not irrelevant. By s 9(1) Crimes (Rape) Act 1991 the amended sections 36 and 37 Crimes Act 1958 applied to the applicant's trial. On the evidence it was open to the jury to conclude as a reasonable possibility that the necessary state of mind of the applicant (s 37(1)(c)) was not made out on the indecent assault counts (as distinct from the rape counts). The absence of exception by counsel does not save this legal omission. It was upon a matter of significance legally and factually. It follows that the convictions of the applicant on each of the indecent assault counts (Counts 1, 2, 5 and 6) must be quashed. Responsibly and fairly, before this Court senior counsel for the Respondent has so conceded.

The final ground of the application, Ground 9, is that "the trial miscarried due to the combination or aggregation of the defects identified in Grounds 1 to 8". In my view the only error of substance is the error in relation to consent being no defence to the indecent assault counts. Accordingly Ground 9 fails.

The usual consequence of the quashing of the indecent assault convictions would be that those counts be remitted to the County Court for retrial. I consider that is the proper order here. However, given the upholding of the rape convictions, the circumstance that the indecent assault on Count 3 immediately preceded the rape on Count 4 and the indecent assault on Count 6 immediately preceded the rape on Count 7, and the heavy burden upon the victim, the applicant and their mother of the re-agitation of these matters in further proceeding, the Director may well consider that it is not appropriate to present the applicant again on the indecent assault counts.

I would propose the following orders:

(1)The application for leave to appeal against conviction is granted.
(2)The appeal is treated as instituted and heard instanter and is allowed in part.
(3)The convictions sustained by the appellant on counts 1, 2 5 and 6 are quashed and the sentences imposed on those counts are set aside.
(4)The Court directs a new trial to be had on counts 1, 2, 5 and 6.
(5)The appeal is dismissed in so far as it relates to the convictions sustained by the appellant on counts 3, 4 and 7.
(6)The sentences of eight months' imprisonment on each of counts 3 and 4 and 11 months' imprisonment on count 7 are affirmed.
(7)The sentences imposed on counts 3 and 4 are, by operation of law, to be served concurrently with each other. The sentence imposed on count 7 is, by operation of law, to be served cumulatively upon the sentences imposed on counts 3 and 4.
(8)The total effective sentence is accordingly 19 months' imprisonment.
(9)The order suspending the whole of the sentence, now 19 months' imprisonment, for an operational period of three years beginning on 14 December 2000 is affirmed.
(10)The entry in the records of the County Court pursuant to s 6F Sentencing Act 1991 is set aside and the following substituted:
"ALH was sentenced for the offence the subject of count 7 as a serious sexual offender."

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R v ALH [2003] VSCA 129

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[2003] VSCA 129

4 September 2003