R v BJC

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 73 of 2004

THE QUEEN
	v.
B.J.C.

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JUDGES:	WINNEKE, P., BYRNE and OSBORN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2005
DATE OF JUDGMENT:	23 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 154

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Criminal Law – Five counts of indecent acts with child under 16 and eleven counts of incest – Whether judge adequately directed jury in relation to evidence of uncharged acts – Relevance and purpose of admission of evidence of uncharged acts discussed – Full Longman warning not required because the passage of time involved permitted adequate testing of evidence – Adequate Kilby warning given – Whether judge erred in raising the issue of the complainant’s motive to lie – Application against conviction dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. O.P. Holdenson, Q.C.	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions

For the Respondent Mr. M.J. Croucher H.E.P. Steel

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons which Osborn, A.J.A. gives for refusing this application. I agree with his Honour that, for the reasons which he gives, the application should be refused.

BYRNE, A.J.A.:

I have had the benefit of reading in draft the judgment of my brother Osborn, and I agree with his conclusion that this application for leave to appeal should be dismissed, substantially for the reasons which he has given.

The application, however, raises once again a difficult question frequently facing trial judges – that of the use which may or may not be made of evidence of uncharged acts, and it is on this point that I venture some general observations. That such evidence is led in cases of sexual misconduct reflects the reality that it is often very difficult for the complainant to identify particular dates and places of acts which may have been committed on a number of occasions, often some years previously, and in similar circumstances. It is therefore led in fairness to the complainant. It would seem that it was for this reason that the Victorian Parliament in 1991 created a new offence of sexual relationship with a child under the age of 16 years.[1] The present case does not concern such a relationship offence. It must, however, be acknowledged that such evidence creates an atmosphere of prejudice against the accused; it may be of such generality that it is difficult to challenge or refute; and there is always a potential that the jury may use it for an impermissible purpose.
[1]Crimes Act 1958 s.47A (amended 1997).

The authorities, therefore, make it plain that a trial judge in a case such as the

present must[2] give to the jury an affirmative direction and a negative direction as to the use they might make of the evidence of uncharged acts. The relevant features of this case, for present purposes, are that the accused was charged with sexual misconduct with a single complainant on occasions within specified periods ranging from 1 July 1995 to 29 February 2000 and that the evidence of uncharged acts was of sexual misconduct on other occasions with this complainant during this period.

[2]In TJB [1998] 4 V.R. 621 at 663, Callaway, J.A. said that the directions must “almost invariably be given”.

For the present purposes, I assume that the jury has been directed that they may not use the evidence of uncharged acts for any purpose unless it has been accepted by them, for if it is not accepted, the evidence cannot advance the case. In the affirmative direction, the jury is to be instructed how they might lawfully use the evidence; in the latter they are to be warned that they may not use it in a particular way[3]. This negative direction involves a warning, first, that they may not use it in substitution for the evidence relating to the charged offences and, second, that they may not use it to reason that because the accused committed the uncharged acts, compare where the other acts are also charged acts; [4] he or she is the kind of person who is likely to have committed the charged acts (“propensity warning”). I shall now turn to each of these directions.
[3]Dolan (1992) 58 S.A.S.R. 501 at 503, per King, C.J.; Vonarx (1995) [1999] 3 V.R. 618 at 625 [22]; Grech [1997] 2 V.R. 609; Best [1998] 4 V.R. 603 at 615, per Callaway, J.A. and TJB [1998] 4 V.R. 621 at 630, per Callaway, J.A.
[4]J (No. 2) [1998] 3 V.R. 602 at 642, per Callaway, J.A., Winneke, P. and Charles, J.A. concurring at 614.

As to the affirmative direction, the trial judge in this case instructed the jury that the evidence of the uncharged acts may be used by them “in order to prove that the accused had an improper relationship with his daughter, thus rendering it more likely that the offences with which he has been charged took place”. Later, his Honour told the jury this:

“The evidence of uncharged acts to which the complainant has testified ... has been admitted before you because it has probative value in that it raises for your consideration the objective improbability that the acts with which the accused has been charged happened in isolation, and the evidence of the uncharged acts may be used by you as tending to support the proposition that the acts with which the accused is charged took place in the context of an improper relationship characterised by a guilty passion entertained by the accused towards his daughter, the complainant, and that is the basis upon which you may use evidence of the uncharged acts that has been given.”

The negative direction was contained in the following passage:

"It is necessary for me to instruct you, however, that the law does not allow evidence of a propensity to be given. That is, evidence of the propensity to commit a crime to be given.
You may use the evidence of uncharged acts in the manner to which I have now referred. But it would be fundamentally wrong, if you were satisfied that those acts did take place, for you to reason that because the accused committed those acts with which he has not been charged, it would be wrong to infer that he is the type of person who is more likely to have committed the acts with which he is charged. So the evidence of uncharged acts in the present case can only be used by you in your consideration of the question whether he had an improper relationship with his daughter, thus rendering it more likely that he did in fact commit the offences with which he is charged”.

In so directing the jury, the trial judge said he was applying the law as laid down in D.P.P. v. Judge Lewis.[5] This was a case which challenged the validity of a presentment containing nine counts of sexual misconduct over a period of some six years. The Crown indicated that it intended to lead evidence of “a pattern of sexual abuse over a period” - evidence of uncharged acts. It was not, however, necessary for the Court to rule on the admissibility of this evidence. Indeed, Tadgell, J.A. who delivered the judgment of the Court, made it clear that admissibility of such evidence cannot be determined, as it were, in the abstract; it requires an analysis against a particular background of fact and argument[6]. The evidence must be shown to have probative value other than by showing a criminal disposition or propensity, and in this regard his Honour referred by way of example to the 1995 case of Vonarx[7] to which reference will be made, to S.[8] and to the 1996 case of Josifoski[9].
[5][1997] 1 V.R. 391 .
[6][1997] 1 V.R. 391 at 400.
[7][1999] 3 V.R. 618.
[8](1989) 168 C.L.R. 266 at 287, per Gaudron and McHugh, JJ.
[9][1997] 2 V.R. 68.

In Josifoski the accused was charged with five counts of indecency involving his daughter in 1989 and 1990. The question was as to the admissibility of evidence of uncharged sexual assaults which took place with the daughter in 1983 and 1987. The evidence was held by Southwell, A.J.A.[10] to be admissible to rebut any possible challenge to the evidence of the complainant based upon her lack of complaint about the charged acts. The majority of the Court rejected as a basis for tender that the uncharged acts were part of a continuous or connective series of events and therefore evidence of the “relationship” between the complainant and the accused, her father. The judgment of Smith, A.J.A. who, likewise, rejected the ground of appeal based upon the wrongful admission of the evidence of the uncharged acts, presents the position from the point of view of a trial judge who is asked to make the ruling, often before the trial is commenced. I venture to quote a lengthy passage from His Honour’s judgment with which I respectfully agree:

“Assessing the relevance of evidence such as the evidence with which we are concerned is often difficult. One of the problems is the difficulty of separating in the mind the evidence of the two earlier incidents from the evidence of the incidents the subject of the presentment. It is essential that this be done. For example, one might well come to the conclusion in this case that the seven incidents viewed together, if accepted, tend to prove a sexual relationship or guilty passion and the existence of a continuing fear or ‘a species of influence’ and that they would explain his confidence of non-detection. If that were done, however, the evidence relating to the five charged incidents would have been used to establish the relevance of the evidence which the Crown sought to tender to prove those charged incidents. It is essential to avoid that circularity.[11]
Care is needed in proceeding on the basis that it is necessary to consider the evidence of other incidents to enable the events the subject of the counts to be considered in a real and intelligible context. Evidence providing a context will be logically relevant but its probative value may be slight and its prejudicial effect great. It is necessary, in my view, to establish why it is that it may be said that the evidence in question will provide a relevant context in which to consider the charges. Only then can the probative value be assessed and compared with its prejudicial effect. When this is done it may be found that the evidence is relevant to the relationship or lack of complaint. To rely simply on ‘context’ will not usually assist in determining admissibility.
A further difficulty in assessing the relevance of such evidence is that usually the relevance has to be determined prior to the evidence being led and in advance of any cross-examination of the relevant witness – which cross-examination may, as here, render the evidence relevant. At any re-trial that may occur, it would need to be borne in mind that the comments that I have made are made on the basis of what occurred at the earlier trials. It will be necessary at any re-trial inter alia, to identify the evidence the Crown intends to tender (about sexual incidents) and the matters the accused wishes to put in issue. It will also be necessary to consider whether the Crown needs to adduce evidence to establish the relevance of the evidence of any incidents prior to those charged, what that connecting evidence is and whether it, if accepted, would provide a sufficient connection between the earlier incidents and the counts in question to support a finding of sufficient relevance.”[12]

[10]Phillips, C.J. concurring.

[11]Cf. Vonarx [1999] 3 V.R. 618 and Etherington (1982) 32 S.A.S.R. 230.

[12][1997] 2 V.R. 68 at 83-4. References have been taken to footnote.

An important point which this passage underlines is that the question of admissibility is related to the affirmative direction which must be given to the jury: each of them requires the trial judge to identify[13] and in the charge express clearly what precisely is the lawful purpose to which the evidence may be put. In saying this, I am, of course, mindful that, after the ruling as to admissibility, the received evidence may be used for any different or other lawful purpose which may later have emerged by the time of the judge’s charge.
[13]Pearce [1999] 3 V.R. 287 at 298 [30], per Tadgell, J.A. This is required even if there is no issue as to admissibility or in the case where the evidence is led by the accused or a co-accused so that different considerations as to admissibility apply. It is prudent for the judge at this point to instruct the jury as to the permitted use of the evidence.

A convenient starting point is the decision of the New South Wales Court of Criminal Appeal in Wickham[14], where Gleeson, C.J. rejected a submission that evidence of uncharged sexual acts with the complainant ought not to have been received. His Honour observed that, in such a case, the evidence will often be relevant and make more credible the evidence of the complainant in at least two ways: to establish a sexual relationship which makes the complainant’s allegations more likely to be true; and as an aid to the understanding of an account or description of words or conduct. This has been acted upon in New South Wales in Beserick[15] where Hunt, C.J. at C.L. expressed himself as follows: [16]

“The evidence is admissible first, in order to establish a sexual relationship which makes the complainant’s allegation more likely to be true. The ‘guilty passion’ of the adult for the child which such conduct shows may well make more credible the complainant’s evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed[17]. Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. R v Wickham provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant. Such evidence provides the key to an assessment of the relationship between them and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated[18].”

[14]Unreported 17 December 1991, BC 9101334.

[15](1993) 30 N.S.W.L.R. 510.

[16](1993) 30 N.S.W.L.R. 510 at 515. References have been taken to footnote.

[17]Martin v. Osborne (1936) 55 C.L.R. 367 at 376, per Dixon, J.; Harriman (1989) 167 C.L.R. 590 at 631, per McHugh, J.; B (1992) 175 C.L.R. 599 at 602, 609, 610-611, 618.

[18]B (1992) 175 C.L.R. 599 at 610: see also (at 602-603; 605).

In 1995 in Vonarx[19], the Victorian Court of Appeal expressed themselves in similar terms. This was a case where the accused was charged with four counts of sexual penetration with a child under 10 years and where the complainant was permitted to give evidence of other uncharged sexual assaults by the accused. Speaking of the evidence of the uncharged acts, the Court of Appeal said this[20]:

“It was not being led to establish the identity of the offender, as was the case in Pfennig, or to negative some defence of accident or mistake. It was being led for the purpose of proving an improper sexual relationship or guilty passion which existed between the accused and the victim, tending to make it more likely that the offence charged in the indictment was in fact committed[21] or, as Deane, J. put it in B. v. R.[22] such evidence can be used by the jury as ‘the key to an assessment of the relationship between the applicant and [the victim] and, as such, constitute[s] part of the essential background against which both the [victim’s] and the applicant’s evidence of the alleged offences necessarily [falls] to be evaluated’.”[23]

[19][1999] 3 V.R. 618 at 622 [13].

[20][1999] 3 V.R. 618 at 622 [13]. References have been taken to footnote.

[21]See Ball [1911] A.C. 47; Beserick (1993) 30 N.S.W.L.R. 510; S. (1989) 168 C.L.R. 266; Harriman (1989) 167 C.L.R. 590.

[22](1992) 175 C.L.R. 599 at 610.

[23]See also Etherington (1982) 32 S.A.S.R. 230.

I interpolate that it is apparent that the trial judge in the case before this Court based his affirmative direction to the jury on this topic[24] upon this passage from Vonarx. Later, the Court of Appeal said the following:

“Nevertheless we believe that in a case such as the present, where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.”[25]

[24]Set out at [6] above.

[25][1999] 3 V.R. 618 at 625 [22].

In the following year, in Grech[26], Callaway, J.A. returned to the topic in a case where the accused was charged with a number of counts of incest with his daughter. Again, evidence was led of uncharged acts. The focus in that case, however, was on the adequacy of the judge’s warning as to the ways in which the evidence of uncharged acts could not be used. This is what I have called the negative direction.
[26][1997] 2 V.R. 609.

His Honour quoted with approval the terms of the charge suggested by Hunt, C.J. at C.L. in Beserick[27]:

“… an explanation should invariably be given to the jury – as soon as the first of that evidence is given and, if necessary, again in the summing-up – as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged.”

[27](1993) 30 N.S.W.L.R. 510 at 516.

In his conclusions in Grech, Callaway, J.A. offered the following guide as to what the jury should have been told in the case then before the Court:

“In my opinion the jury should have been told that:
(a)the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and
(b)even if the jury accepted that evidence or part of it –
(i)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and
(ii)they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case.”[28]

I shall return later to par.(b) of this guide which is concerned with what I have called the negative direction.

[28][1997] 2 V.R. 609 at 614.

The next case to which I refer is the 1998 decision of the High Court in Gipp[29]. The verdict of the jury was upon five counts of sexual misconduct with the accused's stepdaughter. She gave evidence of the acts charged and also said, in general terms, that the accused had regularly sexually molested her prior to the first of the charged acts. He was convicted on all counts and these convictions were set aside by three of the five justices on the ground that they were unsafe and unsatisfactory.
[29](1998) 194 C.L.R. 106.

The interest of the case for present purposes lies in the observations of the Court about the admissibility and utility of the evidence of uncharged acts. It was contended at trial and accepted that the evidence was led to show the relationship between the complainant and the accused and to provide an explanation as to why she so readily complied with his demands. Regrettably, a trial judge looking for guidance upon these matters will be disappointed. Four judgments were delivered and no consensus emerged other than propensity evidence may be received where it has sufficient probative value in relation to the charged acts. It would not be profitable in this case to undertake an analysis of these judgments. It does, however, appear that the majority were concerned that non-specific evidence of uncharged acts led solely to provide context, would lack sufficient probative value for admissibility[30] and that its prejudicial effect would be too great.[31] In the case before the Court, however, all except Gaudron, J. appeared to accept that the complainant's non-specific evidence of uncharged acts was admissible on the basis upon which it was led. Furthermore, as my brother Osborn observes[32], none of the justices would limit the proper evidentiary use which may be made of this evidence of uncharged acts to that of providing context for the evidence of the charged acts. This is of particular relevance for the present case, where the trial judge instructed the jury that they might use the evidence of uncharged acts to establish "guilty passion" and thereby to find the charges proved. Indeed, McHugh, Hayne and Callinan, JJ. expressly accept that this may be a permissible use of such evidence.[33] Of these three justices, McHugh and Hayne, JJ., however, were of opinion that only evidence of specific uncharged acts might be used to prove "guilty passion" in support of the indictment.[34]
[30](1998) 194 C.L.R. 106 at 112 [11], per Gaudron, J.
[31](1998) 194 C.L.R. 106 at 144 [113], per Kirby, J. (quoting with approval at 156 [141] the passage from Vonarx which I have set out at paragraph [13] above); and at 168 [181], per Callinan, J. (quoting with approval at 168 [180] the passage from Vonarx which I have quoted at [12] above).
[32]At [62].
[33]Reference at [76], per McHugh and Hayne, JJ.; at [182], per Callinan, J.
[34]Reference at 132 [76].

In KRM[35], a case concerning the direction to be given upon the trial of a "relationship offence" under s.47A of the Crimes Act 1958 (Vic.), McHugh J., one of the dissentients in Gipp[36] said of that case[37]:

"By reason of the divided reasoning of the majority in Gipp, it cannot yet be said that evidence of uncharged acts of sexual conduct is no longer admissible to prove the relationship between the parties. Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it."[38]

[35](2001) 206 C.L.R. 221.

[36]Hayne, J., the other dissentient, agreeing with this assessment at (2001) 206 C.L.R. 221 at 264 [134].

[37](2001) 206 C.L.R. 221 at 233 [31].

[38]T (1996) 86 A.Crim.R. 293 at 299.

Against this rather unsatisfactory background, I set out the proposed grounds of appeal on this topic:

"1.The learned trial judge erred in his directions on evidence of uncharged acts (Charge at 307-309, 315-317, 330 & 369-370; see also Discussion at 260-261, Exception at 357-367 and Evidence at 22, 37-38, 42 & 44); and, in particular, he erred:
(a)in failing sufficiently to direct as to the purpose for which the evidence was to be used;
(b)in failing to direct that the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct;
(c)in that the propensity direction he gave was undermined by directions to the effect that proof of uncharged acts rendered it more likely that the charged offences occurred;
(d)in tending to confine the directions to the evidence of uncharged acts occurring following count 13 and between counts 15 and 16."

The Affirmative Direction

In support of proposed Ground 1(a) counsel for the applicant relied upon Pearce[39], a case where the accused, a psychiatric nurse, was charged with a number of counts of rape of a patient. The complainant was permitted to give evidence of other uncharged rapes by the accused. In a judgment with which the Chief Justice and Buchanan, J.A. concurred, Tadgell, J.A. quoted and adopted part of the passage from Vonarx which I have set out above. His Honour said this:
[39][1999] 3 V.R. 287.

“It is to be remembered that evidence of uncharged sexual acts of a criminal character is to be used by a jury in a case like this:
… only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting.[40]

It will be noted that, so stated, the purpose to which evidence of uncharged criminal acts of the accused may be put is a single limited one: there are not two purposes. The purpose is limited to establishing or revealing a particular relationship between the accused and the victim of an offence charged. In cases charging sexual misconduct the relationship is that which is sometimes described as one improperly resulting from a guilty passion.”[41]

And later his Honour pronounced the following instruction to Victorian trial judges:
“So too, in this State it should be accepted, unless and until the High Court decides otherwise, that the only purpose (there being no more than one) for which evidence of uncharged criminal sexual acts by an accused may be used by a jury is that expressed in the passage in Vonarx that I have quoted above. In the present climate it may be desirable that, ordinarily, as a matter of practice, no evidence of uncharged acts should be led before it is established at the trial that it should not be excluded as a matter of the judge’s discretion and, if it is to be admitted, its exact bearing on the charged acts, and on the evidence of them, is agreed or decided.”[42]

[40][Emphasis in the quoted passage] Vonarx [1999] 3 V.R. 618 at 625 [22]. References have been taken to footnote.

[41][1999] 3 V.R. 287 at 295 [26].

[42][1999] 3 V.R. 287 at 298 [30].

Accordingly, it was put on behalf of the applicant that the trial judge in this case misdirected the jury by telling them that they might use the evidence of uncharged acts for a purpose other than to establish a sexual relationship between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated in a realistic contextual setting.[43] The trial judge in this case directed the jury that they might use the evidence of uncharged acts for the further purpose of concluding that it was more likely that the charged acts occurred and that they occurred in the context of an improper relationship. And so, the appeal was allowed and the convictions set aside.
[43]FJB [1999] 2 V.R. 425 at 431 [27], per Charles, J.A., Winneke, P. and Buchanan, J.A. concurring.

On their face, the absolute terms of the passage from Pearce are difficult to reconcile with the cases where the evidence of uncharged acts has been accepted as relevant to a purpose other than that of merely providing the context for the evidence of the charged acts.

In PLK[44] the accused was charged with six counts of incestuous conduct with his daughter between November 1984 and July 1989. The complainant also gave evidence that the conduct happened regularly some times twice a week. It was accepted argument that this evidence was admissible in order to put the complainant’s evidence as to the acts charged in context, in accordance with the principle enunciated in Vonarx, but that, nevertheless, the trial judge erred in telling the jury that the evidence of it, if accepted, could be used as making the complainant’s allegations more likely to be true and the complainant’s evidence more credible. As to this, Buchanan, J.A.[45] said this:

“The rule excluding evidence which merely buttresses or bolsters the evidence of a witness is limited to the question of admissibility, and has nothing to say to the use which may be made of evidence once it has been admitted. The evidence in the present case was properly admitted because it did not merely bolster the credibility of the complainant; it was also of probative value as to a fact in issue by disclosing the sexual nature of the relationship between the applicant and the complainant. If the jury did find that the relationship between the applicant and the complainant was a sexual relationship, that circumstance rendered more probable the evidence of the complainant as to the charged acts. In my opinion in telling the jury that the evidence of the uncharged acts, if accepted, rendered the complainant’s evidence of the charged acts ‘more credible or believable’ and her allegations as ‘more likely to be true’, the trial judge was doing no more than describing the logical consequences of considering the evidence. Once admitted, the evidence did bear on the likelihood of the applicant committing the acts with which he was charged.
It has been recognised that although the purpose of admitting evidence of prior misconduct in cases of sexual offences is not to bolster the complainant’s evidence, that is its effect once it has been admitted. Thus in R. v. A.H.[46] Ireland, J. with whom the other members of the Court of Criminal Appeal agreed, said that once evidence was admitted for the purpose of placing events in their context or revealing the guilty passion of the accused it ‘… will also necessarily make the complainant’s evidence more credible in relation to the events upon which the charges were based’. Again, in R. v. Beserick[47] Hunt, C.J. at C.L. spoke of evidence of past misconduct led to establish a sexual relationship making the complainant’s allegations ‘more likely to be true’.”[48]

[44][1999] 3 V.R. 567 a decision handed down on 30 November 1999, three weeks before that in Pearce.

[45][1999] 3 V.R. 567 at 578 [45]-[46], Tadgell and Charles, JJ.A. concurring.

[46](1997) 42 N.S.W.L.R. 702 at 708.

[47](1993) 30 N.S.W.L.R. 510 at 515.

[48]See also R. v. Wickham (unreported, C.C.A. (N.S.W.), 17 December 1991, BC 9101334) at 7-8 per Gleeson, C.J.; R. v. Vonarx [1999] 3 V.R. 618 at 622 [13].

What then is to be made of the instruction to Victorian trial judges set out in the passage from the judgment of Tadgell, J.A. in Pearce which I have set out above[49]. In Loguancio[50] Callaway, J.A., in a judgment with which Tadgell and Buchanan, JJ.A. concurred, drew attention to the fact that in the first of the quoted passages from Pearce, Tadgell, J.A. had been careful to limit his statement of principle, and presumably his instruction to trial judges, to cases such as that before the Court and that a feature of that case was the generalised nature of the evidence of uncharged
[49]See [21].
[50](2000) 1 V.R. 235.
[51][2000] V.S.C.A. 33 at [12]. So understood, the passages from Pearce appear to be consistent with the view of McHugh and Hayne, JJ. in Gipp (1998) 194 C.L.R. 106 at 132 [76], but not with the view of the majority in that case.
acts.[51] It is clear, then, that, notwithstanding the generality of the direction to Victorian trial judges, it must not be understood by them without regard to other cases to which I have referred.

These cases, including Josifoski[52], show that the evidence of uncharged acts which is before the jury may be used in the appropriate case for purposes other than that of giving context to the evidence relating to the charged acts. Moreover, it appears from cases such as Nieterink[53] that the fact that the evidence of uncharged acts is offered only by way of background is not sufficient to warrant its reception.
[52][1997] 2 V.R. 68, discussed at [9] above.
[53](1999) 72 S.A.S.R. 56.

A very common purpose in cases such as the present for the tender of this evidence will be in proof of what is called in the cases, “guilty passion”. In such a case, the Crown may seek to lead evidence of sexual or other conduct on another occasion to prove that the accused was sexually attracted to the complainant or so attracted in a particular way. The leading authority for this, and the likely source of the jargon expression “guilty passion”, is the old English case of Ball[54]. This was a case where the two accused were brother and sister charged with incest. There was no eye-witness of their sexual activities and the Crown relied upon circumstantial evidence, the logic of which was then in vogue in divorce courts in proof of adultery. This was to establish an adulterous passion between the respondent and the co-respondent and an opportunity to gratify that passion and then to invite the jury to infer that the opportunity had been seized.
[54][1911] A.C. 47.

The origin of the expression, perhaps, explains its terminology. It is, however, surprising that its judgmental terms continue to be used in contexts such as the present. It is, to my mind, unhelpful and indeed positively dangerous, to speak of evidence which is not, after all, directly probative of the offence charged and of which offence the accused is presumed not to be guilty, in terms which include the word “guilty”. It may be that the use of the expression would encourage the jury to reason in a way which is prohibited – to conclude that, if the uncharged acts have been proved so that they are satisfied that the accused has indeed a guilty passion for the complainant, this would suffice to establish the guilt of the accused of the charged acts. I agree with Osborn, A.J.A. that it would be preferable that juries be addressed by counsel and trial judges in more neutral terms as is appropriate to the facts of the particular case. Perhaps in most cases, the state of mind of the accused might more properly be referred to as “a sexual attraction”[55] or simply a “passion”.
[55]The expression preferred by Doyle, C.J., in Nieterink (1999) 76 S.A.S.R. 56 at 65 [44]. His Honour also recommended against using the word “relationship” in this context.

The Negative Direction

It will be recalled that, in accordance with paragraph (b) of the guide to judges contained in Grech, the trial judge is required in cases where the evidence of uncharged acts is that of acts with the complainant, to give to the jury two warnings as to what use they might not make of the evidence of uncharged acts, assuming they accept it. They must be told that:

(i)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and
(ii)they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

Paragraph (b)(i) of this guide was relied upon as the basis for proposed Ground 1(b). There, it is put that the trial judge breached that requirement by including in his directions to the jury a statement that proof of the improper relationship might be used to render it more likely that the charged offences took place.[56]
[56]The statement is included in the passage which is set out in [6] above and again in [34] below.

In Best[57], a judgment given on the same day as his judgment in TJB[58] Callaway, J.A. with the concurrence of the Chief Justice and Buchanan, J.A. expressed this paragraph (b)(i) in rather different terms: the trial judge must direct the jury “not to substitute that evidence [the evidence of uncharged acts] for evidence of the offences charged”. It will be recalled that this use of the word “substitute” follows the exposition of Hunt, C.J. at C.L. in the passage from Beserick which I have set out at [11] above.
[57][1998] 4 V.R. 603 at 615.
[58][1998] 4 V.R. 621.

A moment’s reflection shows that it is such a substitution which is the mischief to which the warning is to be directed. If the evidence of uncharged acts is not available to be used at all to prove the charged acts, there is no reason to receive it[59]. The danger to which this part of the warning is directed is associated with the part (ii) of paragraph (b) of the Grech guide. The jury are not to put aside their obligation to form a view to the criminal standard upon the evidence in relation to the charged acts and to reason that, since the accused is guilty of the uncharged acts, he or she must be guilty of some or all of the charged acts.[60] This is apparent when paragraph (b)(i) of the guide in Grech is carefully examined. The jury is here to be told that they may convict the accused of the charged offences only by the evidence relating to those charges. Where evidence of uncharged acts relates to the charged offences, it is available for use for that purpose.
[59]Glennon (No 2) (2001) 7 V.R. 631 at 679 [120].
[60]KRM (2001) 206 C.L.R. 221 at 257 [106], per Kirby, J.; Vonarx [1999] 3 V.R. 618 at 625 [22] - [23].

It follows that the trial judge in this case committed no error in instructing the jury that they might use the evidence of uncharged acts to conclude that the accused was guilty of the charged acts. Proposed Ground 1(b) fails.

Proposed Ground 1(c) is directed to part (ii) of the negative direction. I shall, for convenience, set out this part of his Honour’s direction again:

"It is necessary for me to instruct you, however, that the law does not allow evidence of a propensity to be given. That is, evidence of the propensity to commit a crime to be given.
You may use the evidence of uncharged acts in the manner to which I have now referred. But it would be fundamentally wrong, if you were satisfied that those acts did take place, for you to reason that because the accused committed those acts with which he has not been charged, it would be wrong to infer that he is the type of person who is more likely to have committed the acts with which he is charged. So the evidence of uncharged acts in the present case can only be used by you in your consideration of the question whether he had an improper relationship with his daughter, thus rendering it more likely that he did in fact commit the offences with which he is charged”

It is said that the propensity direction which the trial judge gave in the second sentence of the second paragraph of this passage[61] was undermined by his direction in the third sentence that proof of the uncharged acts rendered it “more likely that the charged offences occurred”.
[61]Evidently modelled on para. (b)(ii) of the Grech guide.

It is clear from authorities such as PLK[62] that there is no substance in this ground. It is apparent, however, from the exchanges between counsel for the applicant and his Honour in the intervals during his Honour’s charge in the present case, that there are difficulties in reconciling the required propensity warning with the required direction as to the use which the jury may properly make of evidence of uncharged acts, particularly those which are concerned with sexual attraction. It may be that it was to resolve these difficulties that Parliament in this State has sought in s.398A to substitute a regime of admissibility whereby all propensity evidence is receivable where the provisions of that section are satisfied and subject to the Christie discretion to exclude it, if that discretion be available.[63] Once received, the evidence becomes part of the material which the jury may use in determining whether the charged offences have been proved to the criminal standard. While this provision may have rendered evidence of uncharged acts more readily receivable[64] and shifted to the jury the task of determining its weight, it does not deal with the associated problem of the duty of the trial judge to direct the jury as to its proper use.
[62][1999] 3 V.R. 567, discussed above at [25].
[63]It has been said that the discretion will rarely be available: TJB [1998] 4 V.R. 621 at 632, per Callaway, J.A.; Tektonopoulos [1999] 2 V.R. 412 at 419, per Winneke, P., Charles and Batt, JJ.A. concurring.
[64]Thereby providing a resolution of the differing views in the High Court as to the degree of probative value of the evidence which will warrant its acceptance into evidence which appear in Gipp (1998) 194 C.L.R. 106 and are mentioned in KRM (2001) 206 C.L.R. 221 at 231 [27] - [31], by McHugh, J. and at 256 [104], by Kirby, J.

Where evidence of uncharged acts is led in proof of sexual attraction of the accused for the complainant, it will be seen that its purpose is perilously close to the prohibited use of evidence of propensity, so that the propensity warning with respect to this evidence must be crafted in such a way so as not to make a nonsense of the direction as to its lawful use. In cases where the victim of the charged and uncharged acts is the same person, this may not be an easy distinction to make. In such a case, the essence of the logic behind the admission of the evidence in question is that the accused, being a man who lusts after the complainant, is likely to have gratified this lust, as she says he did in her evidence in support of the counts on the presentment. The jury are told that where the uncharged acts show that the accused has a sexual attraction or passion for the complainant, they might use this to conclude that her evidence, that he gratified this attraction or passion on the occasions charged, should be believed. At the same time, they are told that they may not use the evidence of uncharged acts as showing that the accused is the kind of person who was likely to have done so on the occasion charged. The point of distinction, if there be one, is indeed a subtle one. It must lie in that between general and specific propensity. The evidence is admissible, not to prove guilt of the offences charged by a general disposition to commit crime, but to show the nature of the relationship in a manner which bears directly upon the question of guilt.[65] In short what the jury are asked to do is to infer from evidence of uncharged acts that the accused has a disposition to commit the particular crime charged.

[65]Harriman (1989) 167 C.L.R. 590 at 630, per McHugh, J.

This difficulty has led the High Court to accept that evidence of uncharged acts is in truth propensity evidence, but propensity evidence of a particular kind whose probative value is such that it is receivable[66]. Whether it is to be received into evidence pursuant to s.398A will depend, in addition, upon the judge’s perception of any prejudicial effect on the accused and, further, whether the judge “considers that in all the circumstances it is just to admit it despite any prejudicial effect on” the accused. Trial judges should, therefore, approach an application to lead this evidence in no merely mechanical way, but with considerable caution and with a clear understanding of the legitimate purpose for which it may be used. It is not sufficient to acknowledge that it may be useful as background or context. Where the evidence is said to provide the context for the evidence of the complainant the uncharged acts must be sufficiently close in time and circumstance to really provide that context;[67] where it said to prove a sexual attraction it must likewise be such that this attraction is sufficiently close in time and circumstance to be probative of the act charged.[68] Particular caution is required where, as here, it is evidence by the complainant herself in very general terms and led in a case where the only evidence of the charged offences is the uncorroborated evidence of the complainant
[66]Pfennig [1995] 182 C.L.R. 461 at 464-5, per Mason, C.J., Deane and Dawson, JJ; Hoch [1988] 165 C.L.R. 292.
[67]See Josifoski [1997] 2 V.R. 68, where the uncharged acts were too remote in time to be part of a continuous or connective series of events to give rise to proof of relationship between the complainant and the accused.
[68]In Beserick (1993) 30 N.S.W.L.R. 510 at 522-3, Hunt, C.J. at C.L. said that evidence of subsequent sexual attraction has less cogency than evidence of prior sexual attraction.

The problem for the trial judge in these circumstances is then how to formulate the propensity warning. The Court of Appeal in this State has made it clear that they must give a warning which, tailored to suit the requirements of the case, satisfies the requirements of the Grech guide.[69] It recommends that they avoid

using the word “propensity”.[70] The task of reconciling this with the affirmative direction which is required may be a delicate one. In most cases the distinction will lie in the identification of the particular use which the jury has been instructed they might make of the uncharged acts evidence for the purpose of establishing whether the particular offence charged has been proved.

[69]Set out above at [16] above. See, for example, J (No. 2) [1998] 3 V.R. 602 at 642, per Callaway, J.A., Winneke, P. and Charles, J.A. concurring; DCC [2004] V.S.C.A. 230.

[70]Vonarx [1999] 3 V.R. 618 at 624-5, approved in KRM (2001) 206 C.L.R. 221 at 259 [113], per Kirby, J.

Where, as here, this evidence is offered to prove a sexual attraction by the accused for the complainant, it is proper for the trial judge to tell the jury that they might use the evidence of uncharged acts, assuming they accepted it, not only to set the context in which the other evidence of the offences charged should be understood and assessed, but also in assessing that evidence and thereby determining the guilt of the accused of the offences charged. This the trial judge did. Accordingly, proposed Grounds 1(b) and (c) must be rejected.

As I mentioned at the outset, in other respects I agree with the reasons of my brother Osborn and would dismiss the application.

OSBORN, A.J.A.:

The applicant is a 50 year old man who seeks leave to appeal convictions in the County Court at Bendigo on five counts of indecent acts with a child under 16 and 11 counts of incest.

The Crown case was that the offences occurred between 1 July 1995 and 29 February 2000. The victim was the applicant's daughter S who was born on 27 October 1982. S was not yet 13 years old at the time of the first offence and 17 at the end of the period in issue.

The evidence of S was that the offences occurred during two periods of time.

During the first S visited her father for the purposes of access and during the second she was living with him. The five indecent acts were committed when the applicant had separated from his wife and S visited him for the purposes of access at a series of addresses in Kyneton. The indecent acts escalated from rubbing the victim's breasts to rubbing the applicant's penis against her, rubbing her while showering with her, and having her wash the applicant's body with particular focus on his genitals. In turn these actions progressed to acts of sexual penetration and a series of such acts took place on weekends. Specific acts were identified in evidence and comprised counts 6, 7, 8, 9, 10 and 11.

In July 1998 the applicant moved to Lauriston Street, Kyneton and thereafter S left her mother and came to live with the applicant. The applicant then engaged in regular and unrestrained sexual intercourse with her. The Crown chose the first of such acts to form the basis of count 13. The applicant and S then moved to a further address in Ebden Street, Kyneton. Counts 14 and 16 comprised the first and last occurrences of sexual intercourse at this address. Count 15 comprised a particular act of intercourse involving specific distasteful circumstances.

Eventually when S reached the age of 17 years she left home. There was some contact between the applicant and S thereafter but no further sexual acts occurred.

S first complained to the police when she was 19 years old and made a full statement on 30 July 2001. The respondent was interviewed by police on 8 November 2001 and denied the occurrence of any sexual misbehaviour.

At the trial evidence was given on behalf of the Crown only by S and the informant who had interviewed the applicant. In turn the applicant gave evidence denying the allegations made against him. The case presented a stark contrast between the evidence of S on the one hand and the denials of the applicant both in his record of interview and in the witness box on the other.

The grounds of appeal

The applicant seeks to appeal on the following grounds:

1.The learned trial judge erred in his directions on evidence of uncharged acts and in particular he erred:
(a)in failing sufficiently to direct as to the purpose for which the evidence was to be used;
(b)in failing to direct that the commission of the offences charged could be proved only by the evidence relating to them not by evidence relating to the extraneous conduct;
(c)in that the propensity direction he gave was undermined by directions to the effect that proof of uncharged acts rendered it more likely that the charged offences occurred;
(d)in tending to confine the directions to the evidence of uncharged acts occurring following count 13 and between counts 15 and 16.

2.The learned trial judge erred in his directions on the applicant's decision to give evidence on oath and in particular he erred:
(a)in endorsing the prosecutor's argument that the applicant had 'a clear motive … to give sworn evidence, … the motive of self-survival';
(b)in repeating without criticism the prosecutor's argument to the effect that in his evidence the applicant feigned indignation and outrage at the complainant's allegations but did not do so in his police interview.

3.The learned trial judge erred in that the Longman warning given was inadequate and in particular the warning:
(a)was not given with the full authority of the learned judge's office;
(b)was weakened by the remark that 'the law tells me that these apparent anomalies are within the capacity of you the jury to resolve, and I need give you no directions in respect of them, save that you must scrutinise the evidence of the complainant with special care';
(c)did not sufficiently drive home to the jury the potential disadvantage to the applicant in defending such vague and imprecise allegations so many years later.

4.The learned trial judge erred in that he failed to give any or a sufficient Kilby warning in relation to counts 2-16, and that which was said on the topic of the absence of timely complaint was couched in the form of a comment rather than a direction of law and in any event was overwhelmed by directions on explanations for failing to complain.
5.The learned trial judge erred in his directions with respect to the assessment of witnesses and, in particular, he erred:
(a)in raising the question whether the complainant had a motive to give the evidence she gave and, if so, whether that motive affected her testimony, which directions had a tendency (i) to invite the jury to speculate as to why the complainant might lie, and (ii) to cast upon the applicant an onus of imputing to the complainant a motive to lie;
(b)by failing to direct the jury to the effect (i) that there was no onus on the applicant to prove such a motive, (ii) that even if they were to reject any such suggested motive, it would not necessarily follow that the complainant was telling the truth and (iii) that it would remain for the Crown to satisfy the jury that the complainant was telling the truth, irrespective of any question of motive.

6. An aggregate of errors caused the trial to miscarry.

I shall deal with each of the grounds in turn.

Uncharged acts

The directions of the learned trial judge as to uncharged acts are attacked on four bases. Before turning to these it should be noted that the Crown case necessarily involved the proof of uncharged acts in that count 13 was expressed to involve the first of a series of acts of sexual intercourse during a specified period at a particular address and counts 14 and 16 comprised respectively the first and last acts of sexual intercourse at another address. The evidence of uncharged acts was, however, admitted not simply as going to proof of counts 13, 14 and 16 but as going to proof of each of the acts charged. Likewise the jury were invited to have regard to the evidence as to the whole of the acts charged in forming their conclusions as to each separate act charged. The Crown case on each count thus fell to be determined in the context of evidence of a continuing course of conduct comprising both charged and uncharged acts other than the act forming the subject of the specific count in issue.

The applicant first contends that the jury was not directed sufficiently as to the purpose for which the evidence was to be used. In my view it is clear that the jury were directed:

(a)that the evidence of uncharged acts could be used to prove "an improper relationship characterised by a guilty passion" on the part of the applicant; and
(b)that it could not be used as evidence from which the jury could reason the applicant was guilty simply by reason of the type of man he was.

The core direction was as follows:

"It is permissible for the Crown to bring forward evidence of those acts, however, that is, those uncharged acts, in order to prove that the accused had an improper relationship with his daughter, thus rendering it more likely that the offences with which he has been charged took place.
It is necessary for me to instruct you, however, that the law does not allow evidence of a propensity to be given. That is, evidence of the propensity to commit a crime to be given.
You may use the evidence of uncharged acts in the matter to which I have now referred.
But it would be fundamentally wrong, if you were satisfied that those acts did take place, for you to reason that because the accused committed those acts with which he has not been charged, it would be wrong to infer that he is the type of person who is more likely to have committed the acts with which he is charged. So the evidence of uncharged acts in the present case can only be used by you in your consideration of the question whether he had an improper relationship with his daughter, thus rendering it more likely that he did in fact commit the offences with which he is charged. I am sorry it is a little complicated, but there it is."

This direction was foreshadowed at an early stage of the charge and subsequently reinforced in the following terms (which are relevant to further argument).

"The evidence of uncharged acts to which the complainant has testified, after the first act at Lauriston Street, which is Count 13, and the uncharged acts to which she has testified between the first act [at] Ebden Street, Count 15, and the last act at Ebden Street, Count 16, that is alleged act, has been admitted before you because it has probative value in that it raises for your consideration the objective improbability that the acts with which the accused has been charged happened in isolation, and the evidence of the uncharged acts may be used by you as tending to support the proposition that the acts with which the accused is charged took place in the context of an improper relationship characterised by a guilty passion entertained by the accused towards his daughter, the complainant, and that is the basis upon which you may use evidence of the uncharged acts that has been given."

The purpose which was identified is one which has been recognised at least since the decision of the House of Lords in R v Ball[71]. In that case the two accused were brother and sister. They were indicted under the Punishment of Incest Act 1908 (U.K.) for having had carnal knowledge of each other. Evidence was given on behalf of the prosecution to the effect that at the time specified in the indictment the accused were living together in the same house, that the house contained only one furnished bedroom, and that there was in the bedroom a double bed which bore signs of two persons having occupied it. The prosecution also tendered evidence of prior sexual relations between the two accused. Such evidence was held to be admissible, Lord Loreburn L.C. stating:

"Their passion for each other was as much evidence as was their presence together in bed of the fact that when there they had guilty relations with each other."

[71][1911] A.C. 47

In Ball the evidence of guilty passion was an essential link in a circumstantial Crown case.[72] In most cases where evidence of uncharged sexual acts is led however, the complainant will give evidence. In these circumstances the evidence of uncharged acts may be characterised as forming an essential part of the context in which the direct evidence of the offences given by the complainant falls to be evaluated.
[72]Cf McHugh and Hayne, JJ. in Gipp v. R (1998) 194 C.L.R. 106, 133 [80] where the case was not "… of the kind with which the House of Lords had to deal with in R v Ball where the charge of incest between the dates alleged must have failed without proof that there had been a previous sexual relationship between the brother and sister." (citation omitted).

The evidence is a species of relationship evidence described by Hunt, C.J. at C.L. in R. v. Beserick[73] as follows:

"The true bases for the admissibility of evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge were analysed in some detail most recently by this Court in R. v. Wickham[74]. The evidence is admissible, first, in order to establish a sexual relationship which makes the complainant's allegation more likely to be true. The 'guilty passion' of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v. Osborne[75]; Harriman v. The Queen[76]; B. v. The Queen[77]. Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. R. v. Wickham provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant. Such evidence provides the key to an assessment of the relationship between them and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated[78] … "

[73](1993) 30 N.S.W.L.R. 510 at 515

[74]Court of Criminal Appeal, 17 December 1991, unreported

[75](1936) 55 C.L.R. 367 at 376 (Dixon, J.)

[76](1989) 167 C.L.R. 590 at 631 (McHugh, J.)

[77](1992) 175 C.L.R. 599 at 602, 609, 610-611, 618

[78]B. v. The Queen at 610, see also at 602-603; 605

Similar statements of principle are to be found in R. v. Wickham[79], in R. v. Nieterink[80] and in KRM v. The Queen[81].
[79]N.S.W.C.C.A. 17 December 1991, Unreported, per Gleeson CJ
[80](1999) 76 S.A.S.R. 56 per Doyle, C.J.
[81](2001) 206 C.L.R. 221 per McHugh, J. at 230

In R. v. Vonarx[82] this Court comprising Winneke, P., Callaway, J.A. and Southwell, A.J.A. identified the admissible purpose of evidence of the kind here in issue as follows:

"It was not being led to establish the identity of the offender, as was the case in Pfennig, or to negative some defence of accident or mistake. It was being led for the purpose of proving an improper sexual relationship or guilty passion which existed between the accused and the victim, tending to make it more likely that the offence charged in the indictment was in fact committed (see R. v. Ball[83]; R. v. Beserick[84]; S v. The Queen[85]; Harriman v. The Queen[86]); or, as Deane, J. put it in B v. The Queen[87], such evidence can be used by the jury as 'the key to an assessment of the relationship between the applicant and [the victim] and, as such, constitute[s] part of the essential background against which both the [victim’s] and the applicant’s evidence of the alleged offences necessarily [falls] to be evaluated' see also The Queen v Etherington[88]." (emphasis added)

[82][1999] 3 V.R. 618 at 622

[83]Above

[84]Above

[85](1989) 168 C.L.R. 266

[86]Above

[87](1992) 175 C.L.R. 599 at 610

[88](1982) 32 SASR 230

It can be seen that conceptually evidence of an improper sexual relationship or guilty passion in a case such as the present can be regarded as an essential aspect of the background required to understand the relationship between an accused and a victim at the time of an alleged offence. It does not follow, however, that the generic purpose of providing essential background should not in a particular case be confined and expressed to identify a particular aspect of the background relevant to the case depending on the circumstances. It may be appropriate to identify the relevant purpose by reference specifically to the concept of an "improper sexual relationship or guilty passion which existed between the accused and victim, tending to make it more likely that the offence charged in the indictment was in fact committed" as first set out in the passage quoted from Vonarx.

There is thus abundant authority that in a case such as the present evidence of uncharged sexual acts may be admitted as probative of an "improper sexual relationship characterised by a guilty passion". It is admitted because it makes it more probable that the charged acts occurred and its admissibility is now governed by s.398A of the Crimes Act 1958.[89]
[89]R. v. Best [1998] 4 V.R. 603 per Callaway, J.A. with whom Philips, C.J. and Buchanan, J.A. agreed.

Furthermore although it may be said the judgments of the High Court in Gipp v. R.[90] do not reveal a clear consensus as to a unifying principle governing the ambit of circumstances in which evidence of a sexual relationship will be admitted at common law[91] nevertheless none of the judgments in that case doubt that where relevant, evidence of a sexual relationship may be led to establish a "guilty" or improper passion. Thus the judgment of Callinan, J. states:

"I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such."[92] (my emphasis)

[90](1998) 194 C.L.R. 106

[91]See the judgment of Tadgell, J.A. (with whom Phillips, C.J. and Buchanan, J.A. agreed) in R. v. Pearce [1999] 3 V.R. 287 at 296 which observes the ratio of the majority in Gipp is not "perspicuously clear"; the analysis of Doyle, C.J. in Nieterink at 75 [75]; and the analysis of McHugh, J. in KRM at 231-233, [28]-[31].

[92]Gipp at 168; see also Gaudron, J. at 112-113 [11]; McHugh and Hayne, JJ. in dissent at 132 [76]. Kirby, J. did not address the specific issue of the admissibility of such evidence.

In argument Mr Croucher placed particular emphasis upon the following passage from the Court's judgment in Vonarx which he contended precluded a direction identifying the purpose of evidence of uncharged acts by reference to the notion of "guilty passion".

"Nevertheless we believe that in a case such as the present, where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged."[93] (emphasis added)

[93]Vonarx at 625 [22]

The proposition that the jury should be told that evidence of sexual conduct can be used by them only for the limited purpose italicised above does not, however, preclude the judge from directing a jury that they may use such evidence for the purpose of establishing a guilty passion. Such a purpose is embraced by the concept of "sexual relationship".

The evidence may be used "only" for the purpose of proving the relevant sexual aspect of the relationship and not for the purpose of proving mere criminal propensity. It is this latter purpose which the judgment in Vonarx requires the jury to be warned against namely reasoning "that the accused is the kind of person likely to commit the offence charged." A warning of this kind was given in the present case and complemented the statement of positive purpose.

In Vonarx itself, a charge which described evidence of uncharged acts as having 'shown a propensity to engage in sexual activity with his son' was held to be adequate. [94] This fact alone makes it clear the passage now relied on is not intended to specify a ritual incantation.
[94]ibid [24]

The passage relied on by the applicant concludes an analysis which commences by recognising evidence may be led to establish "an improper sexual relationship or guilty passion".[95] This is precisely the purpose identified by the learned trial judge.
[95]Vonarx at 622 [13] quoted above

The use of the phrase "guilty passion" may identify the aspect of the relationship which is relevant in the particular case and does so in a manner that most people would understand. As Gleeson, C.J. said in Wickham:

"The expression 'guilty passion' is sometimes used in relation to an accused. It conveys an idea that most people would recognise as being of significance in determining whether a particular incident of a sexual nature has occurred. If past conduct shows that a child is an object of a parent's sexual desire then that may well make more credible an allegation that a particular alleged sexual incident occurred between them."[96]

[96]Wickham at 7

Having said this I should add that in my view generally speaking the use of the specific phrase "guilty passion" rather than a phrase such as "improper sexual relationship" is undesirable for similar reasons to those which the Court gave in Vonarx for generally avoiding the use of the word "propensity" in speaking to the jury.[97] The word "guilty" necessarily has a pejorative connotation. Nevertheless the phrase in issue does not render the charge an improper one.
[97]Vonarx at 624-5 [21]

Mr Croucher also placed emphasis on the following statement by Tadgell, J.A. in Pearce:

"In the decision of the Queensland Court of Appeal in R. v Schneider[98] Pincus J.A. expressed the opinion, , that:
'… juries should ordinarily be told, by way of direction, where evidence of uncharged instances of sexual contact between the complainant and the accused is let in, that its relevance is to show the existence of a sexual passion or relationship. I have thought it desirable to add this because the variety of suggestions as to the basis of admission to be found in Gipp may, with respect, create some practical difficulty for judges who have the task of directing juries on the point.'

So too, in this State it should be accepted, unless and until the High Court decides otherwise, that the only purpose (there being no more than one) for which evidence of uncharged criminal sexual acts by an accused may be used by a jury is that expressed in the passage in Vonarx that I have quoted above."[99]

[98](1998) 103 A. Crim. R. 101 at 102

[99]R. v Pearce [1999] 3 V.R. 287 at 298 [30] the relevant passage from Vonarx being that quoted at [63] above

As Mr Holdenson submitted the above formulation responded to a case in which the jury was directed that alternative purposes were open for the use of evidence of uncharged acts. The judge's directions were capable of being understood by the jury to mean that without considering whether the evidence revealed a sexual relationship they could use it to bolster the evidence relating to the counts charged.[100] The 'essential point'[101] in R. v. Pearce was the identification of this real possibility in the particular context of the evidence in the case. In these circumstances "there was an acute danger that the jury would impermissibly reason that mere acceptance of the complainant's evidence of uncharged acts would afford more reason to accept her evidence with respect to the charged acts."[102]
[100]Pearce at 296-297 [27]
[101]See R. v. Loguancio (2000) 1 V.R. 235 at 239-240 [12] per Callaway, J.A. with whom Tadgell and Buchanan, J.J.A. agreed
[102]Pearce at 297 [27]

The passage quoted from Pearce above at [29] cannot be understood as precluding a specific direction that evidence may be used for the purposes of establishing an improper sexual relationship or guilty passion. As Tagell, J.A. earlier recognises[103] this is not the intent of the passage in Vonarx which the Court endorses. Moreover, the conclusion in Pearce itself is expressed by way of agreement with the judgment of Pincus, J.A. in Schneider in which he endorses telling the jury that evidence of sexual conduct is relevant to show "the existence of sexual passion or relationship[104]". It is also preceded by reasoning which agrees with the passage from Callinan, J.'s judgment in Gipp which I have quoted above and which likewise expressly recognises that evidence may be admitted to demonstrate "guilty passion".
[103]"In cases charging sexual misconduct the relationship is that which is sometimes described as one improperly resulting from a guilty passion." at 295-296 [26].
[104]My emphasis

It will generally be appropriate for the trial judge to identify the purpose for which evidence of sexual relationship is admitted with the same precision as is necessary to determine its admissibility. Before evidence of the kind in issue is admitted the onus rests on the prosecution to establish that it goes beyond mere propensity and "has additional probative value which justifies its prejudicial effect."[105] Accordingly the purpose identified will respond to the particular issues in the case.[106] Characterising evidence simply as demonstrating a relationship may be unhelpful and will increase the risk that it will be treated as evidence of mere general propensity by the jury. As Gleeson, C.J. said in Frawley v The Queen[107] when considering questions of admissibility:

"In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to 'relationship' but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue."

[105]Vonarx at 622 [14]; Best at 612

[106]see eg. R. v. Josifoski [1997] 2 V.R. 68 at 77

[107](1993) 69 A.Crim.R. 208 at 222-223

In Nieterink Doyle, C.J. stated:

"There is a tendency in the cases, and in submissions that I have heard in other cases, to describe such evidence generally as evidence of 'relationship'. To my mind, it is preferable to be more specific, as I have attempted to be more specific above. The term 'relationship' is reasonably clear when applied to cases like Wilson[108] and Hissey[109]. But in cases like the present one, the term 'relationship' could imply a line of reasoning that the uncharged incidents disclose a mere propensity to offend in relation to the victim, which mere propensity can be used to infer guilt, along the lines that the accused is the sort of person likely to commit the offence charged, because he has committed similar offences. The term might also imply that the uncharged incidents disclose a pattern of conduct which can be used in the manner in which evidence truly described as 'similar fact evidence' can be used."[110]

[108](1970) 123 C.L.R. 334

[109](1973) 6 S.A..S.R. 280

[110]Nieterink at 65 [45]

If it is the improper sexual nature of a continuing relationship that is relevant then it follows that it is this which must be identified as relevant for the jury in a case such as the present.

For the above reasons the characterisation of the purpose of the evidence in the present case was both in accordance with authority and entirely appropriate.

The second contention made in respect of ground 1 is that the learned trial judge erred in failing to direct "that the commission of the offences charged could be proved only by the evidence relating to them not by evidence relating to extraneous conduct." The relevant principle was stated by Hunt, C.J. at C.L. in Beserick as follows:

"If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged."[111]

[111]Beserick at 516

Likewise in Vonarx the Court stated[112]:

"The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him on the presentment only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred: see R. v. Dolan[113]."

[112]Vonarx at 625 [23]

[113](1992) 58 S.A.S.R. 501 per King C.J. at 503

The relevant ground of appeal is formulated by reference to a passage of the judgment of Callaway, J.A. (with whom Phillips, C.J. and Smith, A.J.A. agreed) in R. v. Grech[114]:

" In my opinion the jury should have been told that:
…
(i)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; …"

[114][1997] 2 V.R. 609 at 614

It is to be noted, however, that this statement is immediately followed by the observation that: "The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case." The passage relied on is also preceded by the proposition that:

"There is no set form of words that has to be used. The direction must be tailored to the circumstances of the case and apparent differences between the formulations in different judgments are often explicable on that basis. An accused is not entitled to a series of directions, each direction reflecting the language of one or other of the authorities."[115]

[115]Grech at 613

In R. v. Best[116] Callaway, J.A. reaffirmed that what is required is a direction not to substitute evidence of uncharged acts for evidence of the acts charged.
[116][1998] 4 V.R. 603 at 615

The relevant passage in Grech does not, as Mr Croucher appeared at one point to contend, require a direction to the effect that the evidence as to uncharged acts is irrelevant to proof of the charged acts. As the authorities I have cited with respect to the purpose of such evidence make clear, it may be regarded as probative of the acts charged.

In the present case the learned trial judge directed the jury as follows:

"You will not need to be reminded again that the complainant, S, is the crucial witness in the Crown case in this matter. If the accused man is to be convicted of all or any of the offences with which he is charged, that can only occur if the evidence of S satisfies you beyond reasonable doubt that the accused committed the offence under consideration, and if you are able to reject beyond reasonable doubt the denials of the accused which are contained in the sworn evidence given by him and in his recorded interview.
…
Now, your function is not merely to compare the version given by the complainant in her evidence, and the version given by the defendant in his evidence, and in his recorded interview, and then simply to determine which version you prefer. That is not the exercise at all.
If the accused is to be convicted it will only be on the basis that the evidence of the complainant, sworn evidence of the complainant, satisfies you beyond reasonable doubt of the guilt of the accused, that he perpetrated the offence or offences which you have under consideration. And on the basis that you reject his sworn denials and the denials contained in his recorded interview, beyond reasonable doubt."

Such a direction was not inappropriate where the only evidence of events came from the complainant and the applicant respectively.[117]

[117]cf Grech at 612 where "The jury may well have thought that the distinction was between the complainant's evidence and the evidence of other witnesses, for witnesses other than the complainant had testified to the surrounding events of the 1982 incident."

These directions were coupled with careful and repeated directions that the jury must assess the case with respect to each count separately.

When these directions are in turn coupled with the direction that it would be fundamentally wrong to reason that "because the accused committed these acts with which he has not been charged … he is the type of person more likely to have committed the acts with which he is charged", there was in my view no real possibility that the jury could have acted in accordance with such directions but nevertheless substituted proof of uncharged acts for proof of the charged acts. In the words of the joint judgment in Vonarx the jury were clearly instructed that it was "impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the required standard, some other conduct alleged by the victim has occurred."[118]
[118]Vonarx at 625 [23]

It was next submitted that the propensity direction given to the jury was undermined by directions to the effect that proof of uncharged acts rendered it more likely that the charged offences occurred. The directions which I have quoted were more accurately to the effect that proof of the uncharged acts might be used in this way. This was not an improper direction. It is well recognised that this is the potential effect of such evidence.[119] In R. v. P.L.K.[120] Buchanan, J.A. (with whom Tadgell and Charles, JJ.A. agreed) stated[121]:

"The rule excluding evidence which merely buttresses or bolsters the evidence of a witness is limited to the question of admissibility, and has nothing to say to the use which may be made of evidence once it has been admitted. The evidence in the present case was properly admitted because it did not merely bolster the credibility of the complainant; it was also of probative value as to a fact in issue by disclosing the sexual nature of the relationship between the applicant and the complainant. If the jury did find that the relationship between the applicant and the complainant was a sexual relationship, that circumstance rendered more probable the evidence of the complainant as to the charged acts. In my opinion in telling the jury that the evidence of the uncharged acts, if accepted, rendered the complainant’s evidence of the charged acts “more credible or believable” and her allegations as “more likely to be true”, the trial judge was doing no more than describing the logical consequences of considering the evidence. Once admitted, the evidence did bear on the likelihood of the applicant committing the acts with which he was charged."

[119]See eg. Beserick and Vonarx

[120][1999] 3 V.R. 567

[121]ibid at 578 [45] and see the authorities referred to in [46]

It follows that this contention must fail.

It was lastly contended with respect to uncharged acts that the charge given to the jury tended to confine the directions relating to uncharged acts to those occurring following count 13 and between counts 15 and 16. I do not accept that the directions would have been so understood by the jury. The uncharged acts referred to were the subject of specific direction because they were necessary to the proof of counts 13, 14 and 16 as particularised. Nevertheless the emphasis now complained of was not the subject of any exception at trial and I do not accept that there was any real risk that it would have misled the jury.

Directions as to the applicant's evidence

The second ground of appeal asserts that the learned trial judge erred in his directions firstly by endorsing the prosecutor's argument that the applicant had a clear motive of self-survival for giving sworn evidence, and secondly by repeating without criticism the prosecutor's arguments based on the applicant's demeanour in the taped record of interview. In my view both these propositions must fail.

The learned trial judge did not endorse the prosecutor's argument as to motive. He simply repeated such argument and immediately balanced the Crown argument with a competing argument for the defence. He then went on to direct the jury that they must weigh up the competing considerations and stated that in the long run they may well regard the applicant's evidence in the same way as they would regard the evidence of any other witness, while bearing in mind that he may be under more strain than any other witness and remembering at all times that the burden of proof remained on the prosecution. When his Honour's directions are considered as a whole it is clear that the jury was not being invited to treat the accused as a "suspect witness", nor did the judge say anything which undermined the presumption of innocence. The directions did not have the objectionable characteristics identified by the High Court in Robinson v. R.[122]. They were acceptable for the same reasons as those discussed in R. v. Osland[123] and R. v. McMahon[124].
[122](1991) 180 C.L.R. 531
[123][1998] 2 V.R. 636 at 665-657 per Winneke, P., Hayne and Charles, J.J.A.
[124](2004) 8 V.R. 101 at 114-117 [26]-[29] per Winneke, P., with whom Buchanan, J.A. and Coldrey, A.J.A. agreed.

Likewise the proposition that it was improper to repeat the prosecutor's argument with respect to the applicant's demeanour cannot be sustained. It was open to the prosecutor to draw the jury's attention to any apparent inconsistency between the record of interview and the applicant's evidence before them. On the face of it there was a material difference between the tenor of the applicant's answers in the record of interview and his evidence. This was a legitimate subject of address and the learned trial judge did no more than remind the jury of the Crown's contentions.

The Longman warning

A number of criticisms were made of the "Longman warning"[125] given to the jury. In my view, however, this was not a case in which a Longman warning in the full sense identified in that case by Brennan, Dawson and Toohey, JJ. was required. The case the applicant faced related to allegations concerning events between one and a half and six years prior to the police interview with him. Events in issue concerned a continuing course of conduct. The period did not exceed the period which the law regards as a generally appropriate limitation period for civil claims with respect to actions in tort. It was not such as to bring the case into that category where it can be said the experience of the law demonstrates that because of the passage of time the evidence could not be adequately tested. While in my view Mr Croucher was correct to contend that strictly speaking the direction fell short of what would be required to provide a complete warning of the type contemplated by the majority in Longman nevertheless the warning given was appropriate to the present case.
[125]Longman v. The Queen (1989) 168 C.L.R. 79

In directing the jury his Honour drew their attention to the delay of S in making formal complaint in respect of the earlier alleged offences. He went on to note confusion in the evidence of S as to the location and sequence of events. He then stated:

"This apparent anomaly, the law tells me that these apparent anomalies are within the capacity of you the jury to resolve, and I need give you no directions in respect of them, save that you must scrutinise the evidence of the complainant with special care. There is no other evidence in this case which tends to confirm or support the evidence of the complainant. And you must be warned that it is dangerous to convict a person of serious sexual offences on such unsupported evidence unless you the jury subject that evidence to close scrutiny and care, and having done so you are satisfied beyond reasonable doubt of its truth and accuracy, notwithstanding the sworn denials of the accused.
You will consider, for example, whether the delay which occurred in this case, and perhaps the confusion in the evidence of the complainant as to the order of events, and the premises as to where some of those offences are alleged to have been committed, whether that delay and/or that confusion has placed the accused at any disadvantage in dealing with the allegations and assembling evidence which might assist in demonstrating that the events did not happen at all, when and where they are alleged to have happened. Again, it is a matter for you."

In my view such warning was given with the full authority of the learned trial judge's office and identified for the jury the need to have regard to the potential prejudice which the applicant may have suffered as a result of delay in complaint. It did not, however, go the further step contemplated by the majority in Longman and tell the jury that the evidence of the complainant could not be adequately tested after the passage of time involved. It did not do this because the period of time involved did not require this direction. The present case is in critical respects like that of R. v. E.O.[126] in which Winneke, P. emphasised that the nature of any warning which is to be given to a jury in any particular case is very much a matter for the trial judge. In this case as in that the delay between the events in issue and notification to the police (and, thus, to the applicant) was not so great as to create significant prejudice to the applicant; and, thus, to warrant a stronger direction that that given.
[126](2004) 8 V.R. 154 at 157, see also Coldrey, A.J.A. at 166 [46] and 168 [54], Buchanan, J.A. agreed with the reasons of Winneke, P. and Coldrey, A.J.A.

In the present case no exception was taken to this aspect of the charge at trial and this reinforces the conclusion that the direction in issue was in fact very fair to the applicant. It did after all specifically direct the jury to consider the possible consequences of delay in the context of the facts in issue.

The Kilby warning

The applicant next took issue with the form of the "Kilby[127] warning" adopted by the learned trial judge. It was contended that the direction was couched in the form of a comment only and overwhelmed by explanations for failing to complain. I do not accept the factual basis for either of these propositions. The learned trial judge gave the jury "instructions". He further made clear that the jury might use the failure of S to complain as detrimentally affecting the credibility of her evidence. Once again no exception was taken to this aspect of the charge at trial and for the reasons I have stated this is not surprising.
[127]Kilby v. The Queen (1973) 129 C.L.R. 460

The complainant's motive

Ground 5 asserts that the learned trial judge erred in raising the question of whether S had a motive to lie and failing to give directions to the jury as to questions of onus of proof bearing on the issue of the existence of such a motive.

The learned trial judge did give general directions that motive might be a consideration which the jury regarded as relevant to the assessment of credibility of a witness. In so doing however he initially did no more than identify in general terms a circumstance that might bear on the jury's assessment of the evidence.

The learned trial judge subsequently summarised a portion of the prosecutor's address in which the jury were reminded of evidence from the applicant that "when he first became aware of S making allegations, he said he knew it would be S, and he had his reasons for knowing it would be S." The prosecutor drew to the jury's attention the fact that these reasons were never articulated.

There is no suggestion that the prosecutor's submission misstated the applicant's evidence. Moreover, having repeated the prosecutor's observation to the jury the learned trial judge warned them:

"You are not to speculate, Mr Foreman and members of the jury, you are to deal with this matter on the evidence that you have heard."

In my view this warning coupled with the general directions given by his Honour with respect to the onus and standard of proof, and the drawing of inferences, could not have led to any misconception on the part of the jury. In referring to this matter in his summary of addresses the learned trial judge dealt with a submission concerning an incidental aspect of the evidence as a whole bearing upon the relationship between the applicant and S[128]. He did so in a way which did not emphasise or exaggerate its importance, but was so framed as to reinforce his previous directions concerning the proper way in which to approach the evidence. The charge did not give rise to the risks identified in Palmer v. The Queen[129].
[128]This was not a case where a significant part of the prosecutor's address concerned the question of the complainant's potential motives to lie. Cf R. v. PLK [1999] 3 V.R. 567 at 575 [28] per Charles, J.A.
[129](1998) 193 C.L.R. 1

Aggregate of errors

There being no specific error established no question of aggregate of errors arises.

It also follows the application must be dismissed.

[2005] VSCA 154

23 June 2005