R v DD

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 215 of 2006

THE QUEEN
	v
DD

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JUDGES:	MAXWELL P, CHERNOV and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2007, 13 December 2007
DATE OF JUDGMENT:	19 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 317

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CRIMINAL LAW – Appeal against conviction – Found guilty of incest and indecent assault (seven counts) of daughters/friend, all aged 11 to 13, over 30 years ago – Whether conviction for incest unsafe and unsatisfactory – Whether alternative verdict of attempted incest should have been left to the jury – Latent duplicity counts of indecent assault –Admissibility and cross-admissibility of evidence of uncharged acts – Jury directions on uncharged acts – Recent complaint – Crown concession on counts 6, 7 and 8 – Effect of concession on other counts – Directions on collusion/concoction – Failure to sever counts – Whether charge unbalanced – Direction on evidence of good character – Evidence of complaint and the ‘bolster rule’ – Failure to give a Burns direction –Adequacy of Kilby and Longman warnings – Directions on distress, delay and culture of complaint – References to ‘victims’ – Aggregate of errors – Appeal allowed, in part.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M Croucher	Dwyer Mahon & Robertson

MAXWELL P:

Neave JA has dealt comprehensively with the very large number of grounds argued on the appeal. I respectfully agree with her Honour’s analysis and conclusions, and would dispose of the appeal as her Honour proposes.

CHERNOV JA:

I have had the considerable advantage of reading the draft reasons for judgment of Neave JA and, substantially for the reasons she gives, I would allow the application for leave to appeal against conviction on counts 6 to 8 and otherwise refuse leave to appeal against conviction.

In particular, I agree with her Honour that, as she explains, the remaining verdicts are not unsafe and unsatisfactory. And there was no failure to direct the jury on alternative verdicts as claimed by the applicant. In the context of this case, attempted carnal knowledge was never a true alternative to the counts in question. Whether the applicant attempted to penetrate the complainant’s vagina with his penis was never a real issue before the jury. If it had been, the trial judge would have been under an obligation to identify it and give appropriate directions in that context.[1] It is true that it is for the trial judge to decide what are the real issues that are to be left with the jury, rather than that being determined by counsel. But the issue must be real and not merely remote or an artificial possibility.[2] And in determining what are the real issues that must be resolved regard must be had to the conduct of the trial by the parties. Thus, as Gleeson CJ said in Doggett v The Queen:[3]
[1]Nicholls v The Queen (2005) 219 CLR 196, 321-2 (Hayne, Heydon JJ); Tully v The Queen (2006) 167 A Crim R 192, 204-5, 206] (Kirby J), 212 (Hayne J).
[2]R v Tran [2007] VSCA 19, [42] (Redlich JA).
[3](2001) 208 CLR 343, 346.

… The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused’s guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any

directions from the trial judge, are said to be relevant to the determination of the ultimate issue.
The manner in which a trial is conducted, and in which the issues are shaped, especially where … an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.

As the Chief Justice went on to say: ‘When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way’.[4] It seems to me that counsel’s argument before us has the hallmarks of a new case. Be that as it may, the relevant issue before the jury was whether the applicant penetrated OA’s vagina. The prosecution case was that this occurred, whereas the applicant contended, not that he tried to penetrate but failed, but rather that OA’s evidence was a tissue of lies and there had not been any sexual contact between them at all. That this was the parameter of the dispute between the parties was made plain by the judge in his charge and no exception was taken to this by the applicant’s experienced trial counsel. In those circumstances, it is fanciful to suggest, as Neave JA points out, that attempted penetration was an issue between the parties and should have been left to the jury as an alternative offence.
[4]Ibid.

I also agree with Neave JA that the trial judge did not err in his direction on the elements of the offence of incest. His Honour’s task was to charge the jury so that it could properly carry out its obligation; he was required to direct them, in terms that they were most likely to understand, on so much of the law as they needed to know on the matter in issue and relate that to the facts of the case.[5] And it is plain enough from the terms of his Honour’s charge that he explained sufficiently to the jury the elements of the offence created by s 52(1) of the Crimes Act 1958 that was the subject of count 1 and what was in issue before the parties in that regard. Importantly, what his Honour relevantly said to the jury effectively explained to them what constituted ‘carnal knowledge’ and the mere fact that he did not, in terms, say that the sexual penetration alleged by the Crown amounted to ‘carnal knowledge’ did not detract from the efficacy of the explanation of the elements of the offence.[6]
[5]Alford v McGee (1952) 85 CLR 437, 466; Melbourne v The Queen (1999) 198 CLR 1, 52-3 (Hayne J); R v Dardovska (2003) 6 VR 628, 623 (Charles JA).
[6]See, eg, R v Dickinson [2007] VSCA 111 [31]-[36] (Chernov JA).

I also think that, as explained by Neave JA, there is nothing in the claim that the verdicts are affected by duplicity. R v Trotter,[7] on which counsel relied, is a materially different case. There, the evidence disclosed two offences whereas the accused was only charged with one of them so that it could not be determined of which offence he was convicted. That is plainly not the situation here.
[7](1982) 7 A Crim R 8.

Similarly, like her Honour, I consider that there is no merit in the applicant’s claim that his Honour’s direction on uncharged acts was inadequate. The impugned evidence – particularly that of the ‘kitchen incident’ – was, as her Honour explains, relationship evidence going to establish the applicant’s appetite for sexual conduct with the respective complainants and was plainly admissible in respect of each of them; it was also cross-admissible in this case as similar fact evidence that corroborated or confirmed the account of each complainant.[8] In those circumstances, it was for the trial judge to give the jury careful directions concerning the use that the jury can make of the similarities and to direct them that they could not use them for any other purpose.[9] In other words, the judge was obliged to give them a warning known as the ‘propensity warning’. It seems to me that the warning in that regard that was given by his Honour, as it is reproduced by Neave JA in her reasons, was sufficient and, taken together with his Honour’s separate consideration direction, would have made it plain to the jury that they must not engage in impermissible reasoning in respect of the evidence of uncharged acts, or in relation to any conclusion they may reach as to the applicant’s guilt in respect of one or other complainant. This, I think, avoided a perceptible risk of a miscarriage of justice as contended for by the applicant.
[8]R v Kerbatieh (2005) 167 A Crim R 367, 388-9.
[9]See BRS v The Queen (1997) 191 CLR 275, 305 (McHugh J).

As to the evidence of LE, it can be assumed that, given the Crown’s concession, her evidence should not have been admitted and the direction on recent complaint (by HI) should not have been given by the trial judge, and that this error vitiates the jury’s verdicts on counts 6 to 8. I think, however, that by itself the wrongful admission of that evidence did not affect the validity of the verdicts on the other counts. This is essentially because it was made plain enough to the jury that this evidence was led only in relation to the counts against HI and also because of the terms of his Honour’s separate consideration direction and propensity warning, to which reference has been made. Moreover, as Neave JA points out, the charge sufficiently alerted the jury to the need to exclude the reasonable possibility of concoction and collusion between OA and HI.[10]
[10]See, eg, R v Miletic [1997] 1 VR 593, 605 (Winneke P, Charles and Callaway JJA); R v Hill [2007] VSCA 261, [90] (Vincent JA).

Similarly, I consider that, in the circumstances, contrary to the applicant’s claim under grounds 5(c)(d)(e), there was no relevant risk of miscarriage of justice by reason of the evidence that OA told her husband about the applicant’s offending conduct towards her and about the statement by the applicant’s wife, in their presence and that of the applicant, that the applicant had told her that he had been falsely accused of sexually molesting a child. It was conceded by the applicant’s counsel before us that this evidence would have been admissible given the cross-examination, and I note that no relevant objection to the evidence was taken below. Moreover, his Honour made it plain to the jury that the only relevance of that evidence was that it reminded OA of the offence and that they could not draw any adverse conclusion against the applicant from what was said by the applicant’s wife. In the circumstances, the impugned evidence, even if inadmissible as evidence in chief, did not vitiate the verdicts.

I also consider that, for the reasons given by her Honour, the other arguments pressed by the applicant under cover of ground 5 should fail.

NEAVE, JA:

On 17 March 2006, the appellant[11] was found guilty by a jury in the County Court of Victoria of one count of incest and seven counts of indecent assault. In an earlier trial for the same offences, the jury was unable to reach a verdict. The convictions relate to alleged sexual assaults on the appellant’s two older daughters, OA and HI, and one of their girlfriends, SS, more than 30 years ago. The appellant was sentenced to a total effective sentence of seven years and 11 months’ imprisonment with a non-parole period of five years. This is an application for leave to appeal against both the convictions and the sentence imposed on him.
[11]Because the Crown conceded that the appellant’s application for leave to appeal against conviction on counts 6–8 must be allowed and the convictions of these counts set aside, and the Court agrees with that view, DD is described as the appellant throughout this judgment.

Background

The appellant is 71 years old. He was between 36 and 39 years old when the alleged offences were committed, between 1 October 1972 and 22 September 1975, at the family home. The complainants were then aged between 11 and 13 years old.

At the time of the alleged assaults, each of the girls was said to have been unaware that the other girls had been assaulted. In 2002 each sister became aware that the other had been allegedly assaulted by their father. The sisters went to see a solicitor in 2003 and commenced civil proceedings which were later abandoned. They reported the alleged offences to police in 2004 and the appellant was charged.

The appellant gave evidence at his trial. The defence case was that the appellant had not sexually assaulted his daughters or SS and that the daughters had invented their allegations because of a property dispute between the appellant and his wife, and OA and her husband.

The grounds of appeal make it necessary to provide some details of the circumstances in which the alleged assaults occurred. Counts 1 and 2 relate to alleged acts of incest and indecent assault committed against the appellant’s eldest daughter OA, when she was 11 or 12. These acts were said to have occurred after all four of the appellant’s children took the day off school, without their parents’ knowledge, on a day between 1 October 1972 and 17 May 1973. OA’s evidence was that the appellant came home from work unexpectedly and caught them ‘wagging school’. The appellant spoke to OA sharply and told her to come into his bedroom. He then unzipped his pants, put her hand on his penis and said he would not say anything about the children not going to school. He then made her masturbate him before pushing her onto the bed and attempting to touch her genital area. OA testified that the appellant then pushed her underpants to one side and inserted his penis into her vagina ‘just a little bit’. This penetration was the foundation for the count of incest. OA said that when the appellant’s penis would not go any further he stood up, started to masturbate and then forced her to masturbate him again. She could not say whether he ejaculated. He would not let her out of the room until she stopped crying. Count 2 related to the alleged acts of forced touching and masturbation which occurred (respectively) immediately before and after the act of penetration.

Count 3 related to an alleged indecent assault, also on OA, a few weeks later. On this occasion, she said the appellant came home early from work, locked her in the bathroom and forced her to masturbate him until he ejaculated. She gave evidence of a number of other incidents when she was forced to masturbate him. OA testified that the sexual assaults stopped when she was 11½ or 12, after the four children again ‘wagged school’, were caught shoplifting and taken to the police station.

Counts 4 and 5 related to alleged indecent assaults on one of OA’s girlfriends, SS, who was a neighbour of the appellant’s family. They occurred around the same time as the events which were the subject of counts 1 to 3, when SS was about 13. Count 4 occurred when SS came to visit OA. SS’ evidence was that she was walking up the driveway of the house, when the appellant called her into a shed at the rear of the property and touched her vagina through her pants for about 30 seconds. She was shocked and walked away, but told no one about the incident.

Count 5 was alleged to have occurred a few months later at a party at the appellant’s house. SS said that she went inside for a drink and the ‘next thing she felt somebody touch [her] on the breast area and [she] turned around and [she] saw [the appellant]’. She said she told her mother who said she should go and tell the appellant to ‘stop it’, and ‘how would he like it if someone was doing this to one of his daughters.’ Her evidence was that she had repeated what her mother told her to say to the appellant, and that he turned around, said ‘OK’ and walked off. There were no further incidents.

Counts 6 to 8 related to alleged indecent assaults on the appellant’s second daughter, HI, between 23 September 1973 and 22 September 1975. Count 6 occurred when the appellant told HI to take her dirty clothes into the laundry, followed her into the room, put her hand on his penis and moved it backwards and forwards until he ejaculated. Count 8 involved a similar act of forced masturbation in a bungalow at the back of the house. Count 7 occurred when the appellant grabbed HI and took her into his bedroom, where he touched her breasts and masturbated to ejaculation.

Grounds of appeal against conviction

The appellant relied on five grounds of appeal, the last of which asserted that there were 15 separate errors which together had resulted in a miscarriage of justice.[12] In oral argument it was submitted that some of the separate errors alleged under ground 5 were sufficient, either individually or grouped with enumerated sub-grounds, to require the appeal to be allowed.
[12]Compare Kotzmann [1999] 2 VR 123, 138 (Callaway JA), 157 [114] (Batt JA) including the cases cited therein.

At the hearing of the application for leave to appeal, for reasons which I discuss below, counsel for the Crown conceded that the convictions on counts 6—8 were unsafe (‘the Crown concession’). Counsel for the appellant submitted that this required the convictions on counts 1—3 (relating to incest and indecent assault of OA) and counts 4 and 5 (relating to indecent assaults of SS) to be set aside as well. Counsel for the Crown submitted that the concession did not affect the other verdicts. I discuss that issue below.

Ground 1

This ground alleged that the conviction on count 1 (incest) relating to the complainant OA was unsafe and unsatisfactory because:

(a)no reasonable jury properly instructed could have been satisfied beyond reasonable doubt that the appellant was guilty of that offence given that it was not open to exclude the possibility that the alleged carnal knowledge (or “sexual penetration”) did not actually occur;
(b)the learned trial judge erred in failing to leave, in respect of count 1, the alternative verdicts of attempted incest, assault with intent or indecent assault;
(c)the learned trial judge erred in failing to direct the jury sufficiently or at all on the elements of incest and, in particular, the element of carnal knowledge.

(a)Jury could not have been satisfied of sexual penetration beyond reasonable doubt

The evidence-in-chief of the complainant OA in support of Count 1 (incest) was as follows:

Counsel:       You say he tried to touch you?
OA:             Yes.
Counsel:       What happened then?
OA:             When he tried to put his penis inside me.
Counsel:       By that, do you mean inside your vagina?
OA:             Yes.
Counsel:       Tell us what happened exactly?
OA:He was lying on top and he tried to put it inside me which he did a little bit and I tried to push him away and he put his hand on my mouth because I was going to scream. That’s what I remember.

Counsel: Did you still have your underpants on when he - ?
OA: Yes, I did still have them on.
Counsel:So just explain to us what happened when he tried to put his penis into your vagina?

OA: It was painful.
Counsel: What happened to your underpants?
OA:It was just pushed on one side. Was still on. He didn’t take my underpants off.

Counsel:       Did he succeed in putting his penis into your vagina?
OA:             Just a little bit, just a little bit, that’s all.
Counsel:       You understand about the outer and inner lips of the vagina?
OA:             I think so, yes.
Counsel:Can you tell us – how far – what he did with respect to the inner and outer lips of your vagina?

OA:             He pushed one of the inner lips of the vagina just a little bit.
Counsel:       Did you say it hurt?
OA:             Yes I did.
Counsel:       What did you do?
OA:             He – he stopped and then – he stopped after that.
Counsel:       Did you do anything that led to him stopping?
OA:             I was about to scream and I was crying.
Counsel:       Did he do anything after you cried and tried to scream?

OA: Well he had his hand on top of my mouth.
Counsel: Okay?
OA:And then he just stood up and started to masturbate and made me masturbate him again.

Counsel:       And that was after he - - - ?
OA:             Yes.
Counsel:       He had started to put his penis into your vagina?
OA:             Yes it was.

Counsel for the appellant submitted that, on the complainant’s evidence, it was not reasonably open to the jury to conclude that penetration had occurred. The complainant’s answer ‘just a little bit’ indicated uncertainty about whether this was the case, which was not removed by her other evidence that ‘it was painful’.

The offence in count 1 is ‘unlawfully and carnally knowing’ a girl above the age of 10 whom the accused knew to be his daughter.[13] In R v Joseph Lines it was held that: [14]

If on the trial of an indictment for carnally knowing and abusing a female child under ten years old, the jury are satisfied, that at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the child, no matter how little, this is sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offence.

[13]Crimes Act1958, s 52 (as at 1973).

[14](1844) 1 Car & Kir 393; 174 ER 861, 861-862.

The same principle necessarily applies to this offence.[15] His Honour clearly instructed the jury that they must be satisfied beyond reasonable doubt that:

there was an act of sexual penetration, in this case by the defendant’s penis into [OA’s] vagina, and that penetration can be ever so slight, but there must be penetration.

[15]Crimes Act 1958, s 70 (as it then stood) said that it was unnecessary to prove ‘the actual emission of seed’.

Whether or not penetration could be established beyond reasonable doubt was a matter for resolution by the jury. The jury heard OA’s evidence, including her evidence that she thought that the appellant had penetrated her, that what he did was painful and that he pushed at one of the inner lips of the vagina. The appellant simply denied that he had any sexual contact with OA. She was not cross-examined at all on the extent of penetration.

The facts of this case are quite different from those in R v AJS[16] where this Court held that the appellant’s conviction of incest by digital penetration was unsafe. In AJS the accused did not dispute that he had touched the complainant in her vaginal area but said that this had occurred accidentally while he was rubbing her stomach to relieve her stomach pain. Further, in cross-examination the complainant contradicted her evidence-in-chief that the accused had put his fingers inside her vagina and her evidence in re-examination was equivocal.
[16](2005) 12 VR 563. Note that this was one among several grounds of appeal. It was unnecessary for the High Court to consider this issue in AJSv R [2007] HCA 27.

In my view it was plainly open to the jury to be satisfied beyond reasonable doubt that penetration had occurred, in light of OA’s evidence.

(b)Failure to direct jury on alternative verdicts

Counsel for the appellant submitted that the evidence raised a doubt as to whether penetration had occurred. In these circumstances, his Honour should have directed the jury that if they were not satisfied beyond reasonable doubt that the accused had penetrated the complainant, but were satisfied beyond reasonable doubt that he had attempted to do so, they should convict the accused of the alternative offence of attempted incest.[17] It was contended that verdict of attempted incest was open on the facts, that the decision of the High Court in R v Gilbert[18] required the jury to be directed on this alternative, and that his Honour’s failure to do so had deprived the appellant of the chance of a conviction of a lesser offence.
[17]Reference was made in the appellant’s submissions to Crimes Act 1958 ss 421(2), (3). At the time of the alleged offences, the relevant provision of the Crimes Act 1958 relating to attempts was actually contained in s 421 in a slightly different form. However, it was to the same effect as the current sections identified by the appellant. No reference was made to s 425(4) which would also have permitted the jury to convict the accused of ‘assault with intent unlawfully and carnally to know such a woman or girl, assault occasioning actual bodily harm, indecent assault or common assault’.
[18]Gilbert v The Queen (2000) 201 CLR 414, 421 [17] (Gleeson CJ and Gummow J).

At the trial counsel for the accused did not ask his Honour to leave these alternative verdicts to the jury. Counsel for the appellant on appeal contended that this could not have been a deliberate forensic decision. He contrasted the approach taken by defence counsel at trial to count 1 (incest) and counts 4 and 5 (indecent assaults of SS). Although the appellant denied the indecent assaults on SS, counsel for the accused in his closing address had said that even if the evidence of SS were accepted, the jury should not accept that the acts done by the accused amounted to indecent assaults. His Honour directed the jury on that issue. It was said that this showed that trial counsel’s failure to request a jury direction on an alternative verdict of attempted incest must have been an oversight, rather than a tactical decision.

In response, counsel for the Crown said that the case on count 1 had been run on an all-or-nothing basis. The Crown case was that the appellant had sexually penetrated his daughter OA and the appellant had denied that he had had any sexual contact with her. Given the way in which the case was run, his Honour’s failure to direct the jury on the possibility of delivering a verdict on an alternative count had not deprived the accused of a fair trial.

Counsel for the Crown further submitted that the principles established by the High Court in Gilbert v The Queen[19] and Gillard v The Queen[20] do not require a trial judge to routinely direct the jury on alternative counts, in cases involving offences other than murder.
[19](2000) 201 CLR 414 (‘Gilbert’).
[20](2003) 219 CLR 1.

In Gilbert[21] a majority of the High Court[22] allowed Gilbert’s appeal against his conviction for murder, in a case in which the trial judge had not left manslaughter to the jury as an alternative verdict.[23] The Queensland Court of Appeal had held that his Honour had erred in failing to leave manslaughter to the jury, but applied the Queensland provision equivalent to the proviso in s 668E(1A) of the Crimes Act1958 and dismissed the appeal on the ground that no substantial injustice had occurred, by virtue of the failure to give the alternative direction. The High Court held that the court should not have applied the proviso,[24] because a jury which had been properly instructed might not have found the accused guilty of murder, if they had been aware that the verdict of manslaughter was open to them.
[21](2000) 201 CLR 414.
[22]Gleeson CJ, Gummow and Callinan JJ.
[23]The Queensland Court of Appeal had held that manslaughter ought to have been left to the jury, but upheld the appeal on the basis that there was no substantial miscarriage of justice, because the verdict of guilty on the murder count indicated that the jury had concluded that there was an intention to kill the victim and therefore a verdict of manslaughter was not open to them.
[24]Under Criminal Code s 668E(1A).

The question whether a judge who correctly directs the jury on the elements of an offence other than murder has erred by failing to direct the jury that they could convict the accused of a lesser offence, has been discussed in several Court of Appeal decisions. There is considerable support for the view that the Gilbert requirement applies only to murder, but that in a trial of an accused for an offence other than murder the particular circumstances may require a direction on alternative verdicts to be given. [25] I discuss the relevant case law supporting this view below.
[25]R v Kane (2001) 3 VR 542, 544-545 (Ormiston JA), 587-588 (Callaway JA), 588 (Batt JA). See also R v Doan (2001) 3 VR 349, 356-359 [27]-[33] (Charles JA, Vincent JA agreeing, Batt JA not expressing a view); R v Mary Saad [2005] VSCA 249 (Nettle JA, Chernov JA and Harper AJA agreeing).

In R v Mary Saad[26] it was contended that the judge had erred by failing to direct the jury that it was open to them to convict an appellant who had been charged with murder, of the lesser offence of assisting the principal offender.[27] The appellant was refused leave to amend her grounds of appeal to include this ground. Nettle JA (with whom Chernov JA and Harper AJA agreed) rejected counsel’s submission that the view of the majority in Gleeson CJ and Gummow J in Gilbert applied to ‘all cases in which a judge fails to leave a lesser available offence as a possible alternative verdict.’[28] Counsel had submitted that because Gleeson CJ and Gummow J had relied upon the Canadian Supreme Court decision in Re Jackson,[29] they had necessarily approved the Canadian view that ‘no matter what is charged, the failure of the judge to leave to the jury a lesser alternative charge open on the evidence must result in a guilty verdict being set aside unless the proviso can be applied.’[30]
[26][2005] VSCA 249.
[27]Crimes Act 1958, s 325.
[28]R v Mary Saad [2005] VSCA 249, [93]. See also R v Van Xuan Bui [2005] VSCA 300, [56] (Eames JA).
[29][1993] 4 SCR 573.
[30]R v Mary Saad [2005] VSCA 249, [94].

Nettle JA rejected this submission in the following terms:[31]

As Ormiston, J.A. demonstrated in R v Kane,[32] the Canadian jurisprudence depends largely on a questionable interpretation of the Canadian Criminal Code and on a degree of dogmatic insistence that all "included offences" should be resolved by verdict. With respect, it is unlikely that Gleeson, CJ. and Gummow, J. intended that legal reasoning of that kind is to be adopted in this country. Significantly, too, Callinan, J., who was the other majority judge in Gilbert, reached the same conclusion as Gleeson, C.J. and Gummow, J., without any reference to Canadian authority, and Gleeson, C.J. and Gummow, J. referred to Callinan, J’s judgment with approval. Callinan, J.’s conclusion was in terms confined to the proposition that where the charge is murder and the judge fails to leave an available alternative verdict of manslaughter for the jury’s consideration, a verdict of guilty of murder must be set aside unless the proviso can be applied. Admittedly, Callinan, J. referred with approval to observations of Pincus, J.A. in R v Donald,[33] and on one view of the matter Pincus, J.A. was directing his observations to cases apart from murder. But R v Donald, like R v Jackson, was a case of murder in which the trial judge erred by failing to direct the jury that a verdict of manslaughter was available for consideration. Accordingly, with respect, I read Callinan, J.’s reference to the case as confined to that context. Further, in Gillard v The Queen,[34] a High Court of five members took the law as stated in Gilbert to be that where the offence which is charged is murder and the judge fails to leave to the jury a viable case of manslaughter, the accused is wrongly deprived of an opportunity to have the jury consider ‘an intermediate position’, and a verdict of guilty of murder will therefore be set aside. There is no suggestion in Gillard that the principle in Gilbert is to be understood as applying to a case other than one of murder in which the judge fails to leave an available case of manslaughter. This court has also twice before considered the question of whether the principle in Gilbert and Gillard has application beyond a case in which the offence which is charged is murder and the error of the trial judge is to fail to leave to the jury an available alternative case of manslaughter. In the first case it was doubted that the principle went any wider that the murder/manslaughter dichotomy and in the second it was held it does not. In R v Doan,[35] Charles, J.A. undertook a review of some of the authorities in other states and concluded that it was doubtful that the principle extends beyond the murder/manslaughter dichotomy.[36] Vincent, J.A. agreed.[37] In R v Kane,[38] Ormiston, J.A.[39] reviewed a large number of authorities and concluded that, except in cases where murder has been charged and manslaughter should be left to the jury, there is no basis in principle for insisting on alternative charges being left to the jury in every case. It depends, his Honour stated, on all the circumstances and in particular on whether the accused’s counsel asks that the alternative charge be left to the jury or otherwise raises the issue.[40] Callaway, J.A., also considered a number of the authorities and concluded that it is not every alternative verdict that must be left to the jury and that the answer to whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel.[41]

[31]Ibid [95]–[97] (citations in original).

[32](2001) 3 VR 542, 565–573.

[33](Unreported, Queensland Court of Appeal, 19 December 1997).

[34](2003) 139 A Crim R 100.

[35](2001) 3 VR 349.

[36]Ibid 356 [26].

[37]Ibid 362 [46].

[38](2001) 3 VR 542.

[39]In dissent, but not in point of principle.

[40]Ibid 572 [63].

[41]Ibid 588 [116].

For the reasons given by Nettle JA, I agree that the principle in Gilbert does not require a trial judge to direct the jury on alternative charges to offences other than murder. However, as Nettle JA recognised,[42] there will be cases where the circumstances of the case require a direction on alternative charges. [43]
[42][2005] VSCA 249, [102].
[43]See for example R v Kane (2001) 3 VR 542 (accused presented on one count of intentionally causing serious injury and one count of recklessly causing serious injury. The majority (Callaway JA and Batt JA, Ormiston JA dissenting) held that the alternatives of intentionally or recklessly causing injury should have been left to the jury. In this case there was a difference between the Crown case which was opened and the way the case was explained by the trial judge in the jury charge); R v Christy [2007] VSCA 152 (Accused presented on one count of unlawful imprisonment, one count of assault with intent to rape and one count of common assault and one count of theft. Judge withdrew the common assault count from the jury on the basis that if they acquitted the accused of false imprisonment and assault with intent to rape there was no realistic scenario on which they could convict him of common assault. Held that the trial judge had erred in withdrawing the assault count, because there was a basis on which the accused could have been acquitted of assault with intent to rape and convicted of assault). Compare R v Doan (2001) 3 VR 349 (Accused presented on one count of trafficking heroin in an amount not less than the commercial quantity, held not an error for the judge to fail to leave the offence of possession to the jury, because the accused’s case was that he did not have any knowledge of the drug); R v Saad [2005] VSCA 249 (see facts above).

As Nettle JA said in R v Van Xuan Bui:[44]

Murder and manslaughter apart, the test of whether a lesser included offence should be left to the jury as an available alternative depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel.[45] As the English Court of Appeal put it in R v Fairbanks:[46]
[The] cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.[47]

[44][2005] VSCA 300, [79] (citations in original).

[45]R v Kane (2001) 3 VR 542, 588 [116].

[46][1986] 1 WLR 1202.

[47][1986] 1 WLR 1202, 1205–6. See also Reg v Maxwell [1988] 1 WLR 1265, 1269.

The question therefore is whether, in the context of this particular trial, the failure of the judge below to direct the jury that it was open to them to convict the appellant of an attempt to commit incest or of indecent assault, resulted in a miscarriage of justice.

The case put on behalf of the appellant was that he had not committed any of the alleged sexual assaults alleged by OA. In that respect it has some similarities to the example given by Nettle JA in Van Xuan Bui, of the situation where the defendant simply denies committing an offence. The appellant’s counsel did not contend that even if the appellant had attempted to penetrate OA, he had not succeeded. The case put by the defence was that the alleged assaults were fabricated by OA in order to revenge herself against her father because she had a property dispute with him.

It would have undermined the appellant’s credibility to contend that an indecent assault or act of attempted penetration might have occurred, rather than an act of penetration amounting to incest. In these circumstances, the failure of defence counsel to request a direction on alternative verdicts is explicable on forensic grounds. The fact that counsel contended that the acts relating to SS did not amount to indecent assaults provides no assistance on any forensic decision he may have made relevant to the incest count.

The principle in Gilbert is intended to guard against the possibility that a jury which is faced with the choice of convicting the accused of a more serious offence and acquitting him or her of that offence, will convict the accused, rather than allowing him or her to completely escape punishment for the consequences of his or her conduct.

I do not think that the danger which the High Court were concerned about in Gilbert existed in the circumstances of this case. His Honour directed the jury on the elements of incest and the need to be satisfied beyond a reasonable doubt that the accused had penetrated his daughter OA, in the terms that are set out in para 45 below. The accused denied any sexual misconduct with his daughter. In these circumstances, I do not consider that the appellant was deprived of the chance of being acquitted of incest because his Honour failed to direct the jury on the possibility of convicting the accused of the alternative offence of attempted incest. My view on this issue is fortified by the fact that counsel at the trial did not seek a direction to this effect.

(c) Failure to direct the jury sufficiently or at all on the act of incest

At the time when the alleged act of incest occurred, incest was punishable under s 52(1) of the Crimes Act 1958, which made it an offence for a person to have ‘unlawful carnal knowledge’ of his daughter. Counsel for the appellant contended that his Honour should have directed the jury on the meaning of ‘carnal knowledge.’ The jury direction on count 1 was as follows:

To turn to the first count of incest, the essential elements that the Crown have to prove beyond a reasonable doubt to your satisfaction are as follows. The first essential element is, of course, that it was the defendant that committed the act, number one. Two, that there was an act of sexual penetration, in this case by the defendant's penis into [OA]'s vagina, and that penetration can be ever so slight, but there must be penetration. Thirdly, that the act was with a person who the accused knew to be his child, and at the time [OA] was over the age of ten.
There's no dispute in this case about any of those elements other than the first one. The defence case is that this simply did not happen. It is not suggested that there is any fallback position, that for some reason the Crown have not proved penetration, or for some reason the Crown have not proved that she was over ten at the time, or anything like that. There is no dispute about any of the elements except the first one, of course, the most important one, did the accused man commit the act?

It was not necessary for his Honour to use the word ‘carnal knowledge’ in his jury direction. The Crown alleged that he had penetrated the complainant’s vagina with his penis[48] and his Honour correctly directed the jury that penetration could be ‘ever so slight’. His Honour also referred in some detail to OA’s evidence-in-chief, which I have set out in para 23 above.
[48]The situation would have been different if the accused had digitally penetrated the complainant, as that would not have amounted to ‘carnal knowledge’.

The facts of this case are readily distinguishable from AJS,[49] to which I have already referred. In that case the central issue was whether the appellant had touched the complainant’s vaginal area accidentally in the course of rubbing her stomach or had intentionally inserted his finger between her labia majora. The complainant herself had given conflicting evidence on this issue. In those circumstances it is not surprising that this Court found that it ‘was critically important that [the jury] have the legal meaning of “vagina” explained to them.’[50]
[49](2005) 12 VR 563.
[50]Ibid 577 [58].

The circumstances of this case are quite different. In my opinion his Honour’s direction in relation to penetration was sufficient and his failure to say explicitly that penetration of the labia was sufficient, or to define ‘external genitalia’, was more likely to benefit the appellant than to disadvantage him. Counsel for the appellant did not object to the jury charge.

Ground 2

Ground 2 alleges that ‘the verdict on count 2 is afflicted with duplicity, latent duplicity or uncertainty given that:

(a)two separate acts of indecent assault separated by the allegation of incest in count 1 were left in support of count 2; and
(b)there was no election by the prosecution as to which of those acts was relied on.’

In her evidence-in-chief relating to count 1, which is set out in para 23 above, OA testified that her father asked her to go to the bedroom, pushed her on the bed, took his pants off and put her hand on top of his penis. He then pushed her onto the bed and tried to put his penis inside her ‘which he did a little bit’. Then she said he stopped, stood up and made her masturbate him again until he ejaculated. Counsel for the appellant contended that the events described by OA involved allegations of two separate acts of indecent assault, which were separated by an alleged act of incest. It was said that the jury would have been in doubt as to which of these acts was relied upon, because the prosecution did not elect one of them. Nor did the judge separate the evidence of the two acts and identify one as supporting count 2.

Counsel for the appellant submitted that the situation was analogous to that in R v Trotter[51] where the verdict was set aside because it was affected by duplicity. It was, however, conceded by counsel for the appellant that it was unlikely that the jury would have been confused in this case as to the acts which provided the basis for the charge of indecent assault.
[51](1982) 7 A Crim R 8.

In my opinion, the circumstances of the case are clearly distinguishable from those occurring in R v Trotter. In that case the appellant was canvassing for business in Braybrook and told the complainant, a 12 year old boy, and his parents that he was looking for young boys to help him repair sewing machines. The parents had recently migrated to Australia and had very limited English. The appellant’s case was that the parents had agreed to let the boy stay with him. It was common ground that the boy was taken to the appellant’s flat where he had a meal and a bath and put on pyjamas.

The appellant was charged with taking the boy away and indecently assaulting him. The boy made two statements to the police, in the first of which he made no reference to indecent assault and in the second of which he said that he was assaulted while he was lying on a bed watching television. His evidence-in-chief also referred to this indecent assault. The appellant cross-examined the boy and demonstrated the alleged touching and the boy agreed with the appellant’s assertion that he had not been touched. However in re-examination he gave evidence of a separate incident of assault occurring earlier in the evening, which was said to have occurred while the appellant was helping him to dry himself after a bath.

The Victorian Court of Criminal Appeal held that his Honour had erred in admitting the evidence of the second assault, because the prosecution had not been required to specify which of the two alleged indecent assaults was the subject of the count. While the jury must have agreed unanimously that the appellant had committed an indecent assault on the child, it was possible that some of them had taken the view that one assault had occurred and others had taken a view that the other assault had occurred.

In this case, there was no evidence which would have caused jury members to disagree as to which of the alleged acts of masturbation had occurred. Rather, the question was whether the jury was convinced beyond reasonable doubt that a sexual assault involving acts of incest and indecent assaults had occurred on the particular occasion. The indecent assault was treated by the Crown, without objection from the counsel for the appellant, as a continuing transaction, albeit one which was interrupted by the act of incest. The accused’s case was that the actions did not occur at all. In these circumstances there was no possibility that some members of the jury might have relied on the commencement of masturbation, prior to the act of incest and some on the completion of masturbation until ejaculation after the act of incest. This ground is not made out.

Ground 3—Adequacy of jury directions relating to charged and uncharged acts

Ground 3 complains of the inadequacy of the jury directions relating to the evidence of uncharged acts of sexual assault of OA and HI and to the counts on the presentment relating to the different complainants. It is said that ‘[t]he learned trial judge erred in his directions on uncharged acts and, in particular, he erred:

(a)in leaving the single uncharged allegation of [the appellant’s] daughter [HI] as going to proof of a sexual relationship; and
(b)in limiting the propensity warning in its application to evidence of uncharged acts as opposed to charged acts.’

Before examining the adequacy of the jury directions relating to the evidence of charged and uncharged acts, it is necessary to determine whether this evidence was admissible, and if so, for what purpose.

The admissibility of the evidence of the uncharged acts

Both daughters made allegations of discreditable sexual conduct by the appellant on occasions other than those the subject of charges in the presentment. OA gave evidence that the appellant made her masturbate him on a number of occasions other than those referred to in counts 2 and 3. HI testified that in addition to the alleged acts of forced masturbation covered by counts 6, 7 and 8, there was an occasion when she was in the kitchen and sitting on her father’s lap when she felt him getting an erection and she got up and walked away. (I describe this as the ‘kitchen incident’.)

Defence counsel at the trial did not object to the admission of any of this evidence and there was no discussion between trial counsel and the judge as to the purpose for which it could be used by the jury.[52] Nor do the grounds of appeal allege that the judge erred by admitting the evidence of the uncharged acts of forced masturbation by OA. Ground 3(a) objects to the admission of and directions with respect to the evidence of the ‘kitchen incident’. However, in order to consider whether ground 3 is made out it is first necessary to analyse the basis for the admission of the evidence of uncharged acts and other disreputable conduct.
[52]It is possible that these issues were examined in a voir dire in one of the earlier trials.

There is ample authority that evidence of uncharged acts showing that an accused is sexually attracted to a particular complainant is admissible, despite its propensity character. The evidence that the appellant forced his daughter, OA, to masturbate him on occasions other than those charged satisfied the requirements of s 398A of the Crimes Act 1958 because its probative value outweighed its prejudicial character.[53] It was, however, necessary for his Honour to warn the jury of the use which could be made of such evidence and, in particular, to warn the jury against reasoning that the accused was guilty of counts 1–3 because he was ‘the kind of person’ likely to have committed the offences charged.[54] I consider the adequacy of the warning given by his Honour below.
[53]See for example R v Beserick (1993) 30 NSWLR 510, 515 (Hunt CJ at CL); R v Vonarx (1999) 3 VR 618, 625; R v BJC (2005) 13 VR 407; R v GH [2005] VSCA 214, [79]–[82] (Vincent and Nettle JJA, Osborne AJA).
[54]R v Best [1998] 4 VR 603; R v Grech [1997] 2 VR 609.

The evidence of the ‘kitchen incident’ was also relied upon by the Crown as demonstrating ‘an attraction by the father towards [HI] beyond the normal father/daughter affection that you might expect’. Counsel for the appellant submitted that the evidence of the kitchen incident involving HI should not have been admitted, because it was evidence of a single incident which might have been innocent. The submission made two distinct points. First, a single incident could not constitute a ‘relationship’. Secondly, the incident itself was not necessarily sexual at all.

Neither limb of the submission is persuasive. Taking the second point first, the incident was self-evidently sexual in nature, given that (on HI’s version) the appellant ‘sat me on his lap’, then became sexually aroused and then was ‘hanging on to’ her before letting her go. As to the first, it is not necessary that the uncharged act or acts be sufficient, without more, to constitute a sexual relationship. As in R v VN,[55] the evidence was properly admitted

[a]s it was evidence tending to establish matters relevant to the relationship between the applicant and the complainant. The evidence had probative force as tending to make it more likely that the subject offences had been committed, placing the evidence in a more realistic and complete context.

[55]162 A Crim R 195, 206 (Redlich JA).

The cross-admissibility of the evidence of uncharged acts

As I have said, the evidence of uncharged acts affecting OA was admissible in relation to counts 1–3 and the evidence of the ‘kitchen incident’ affecting HI was admissible in relation to counts 6–8, in each case to show that the appellant was improperly sexually attracted to the relevant daughter. But was the evidence relating to uncharged acts affecting OA or the kitchen incident affecting HI cross-admissible in relation to the alleged sexual assaults of the other daughter?

Evidence of this kind is often described as ‘relationship evidence’. In R v Nieterink,[56] Doyle CJ cautioned against the general use of the term ‘relationship evidence’ and said that it was preferable for the basis on which such evidence is admitted to be more specifically described.[57]
[56][1999] SASC 560.
[57][1999] SASC 560, [45].

Similarly, in R v BJC Osborne AJA said that:[58]

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 is on the prosecution to establish that it goes beyond mere propensity and “has additional probative value which justifies its prejudicial effect.”[59] Accordingly the purpose identified will respond to the particular issues in the case.[60] 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.

[58](2005) 13 VR 407, 428 [73] (citations in original).

[59]R v Vonarx [1999] 3 VR 618, 622 [14]; R v Best [1998] 4 VR 603, 612.

[60]See eg R v Josifoski [1997] 2 VR 68, 77.

In cases involving a single complainant, admission of ‘relationship evidence’ may enable the jury to understand the circumstances and context in which an alleged offence is committed, or it may show that the accused had an unlawful attraction for the complainant, which increases the likelihood that he has committed the offences with which he was charged.[61] As I have said, the evidence will be admissible, despite its propensity character, because its ‘additional probative value’ justifies its prejudicial effect.[62]
[61]As Vincent and Nettle JJA and Osborn AJA made clear in R v GH [2005] VSCA 214, [81] there may be other bases of admissibility, for example to rebut an anticipated defence of consent to sexual activity.
[62]R v GH [2005] VSCA 214, [80].

Was the evidence of uncharged sexual acts against OA admissible as relationship evidence in support of the counts affecting HI, and vice versa? As the law currently stands, evidence of uncharged acts showing an unlawful sexual attraction to one complainant may not be admissible to show the existence of an unlawful sexual attraction to another complainant.[63]
[63]BRS v R (1997) 191 CLR 275, 283 (Brennan CJ), 298 (Gaudron J) 304 (McHugh J), 322–3 (Kirby J).

Generally no distinction has been drawn between cases where the complainants are members of the same family (for example, the children or step-children of the accused) and where the complainants are unrelated children. It appears that evidence of charged or uncharged sexual acts by a parent against one child is only admissible in support of counts involving alleged abuse of a different child in the family if there is such similarity between the acts as to make it improbable that each of the complainants would have made the same allegations.[64] In these circumstances the jury must be told that they can only rely on the similar fact evidence if they are satisfied that one complainant has not been innocently influenced by the allegations made by another complainant and that the complainants have not fabricated the allegations.[65]
[64]See for example R v DCC (2004) 11 VR 129, [5] (Callaway JA), who said that such evidence could be admissible as similar fact evidence; see however the comments of Eames JA in R v ALP [2002] VSCA 210, [97]–[99] which appears to regard evidence of sexual attraction to one daughter as cross-admissible in relation to charges relating to the other daughter.
[65]R v Best [1998] 4 VR 603, 611.

To my mind there is a difference between reasoning that because a person may have committed offences against one child, he is a paedophile who is likely to have committed offences against other children (which the law regards as impermissible propensity reasoning) and reasoning that a person who regards one of his children as an appropriate object for his sexual attention is likely to be improperly sexually attracted to his other children. Arguably evidence that the accused is attracted to one of his children goes beyond evidence of general propensity and should be regarded as directly probative of the existence of an improper sexual attraction to children with whom he has a parental relationship. However present authority does not appear to support the cross-admissibility of relationship evidence on this basis.

As I have said, evidence of uncharged acts may be cross-admissible if it shows a similarity between the uncharged acts, which supports an inference that the appellant committed the offences with which he was charged. In R v DCC[66] for example, it was held that the Crown could rely on the evidence of the appellant’s three step-children that he had sexually abused them, as similar fact evidence. In these circumstances the probative value of the evidence was based on the improbability that the three children were likely to have given similar accounts of abuse by their step-father.
[66](2004) 11 VR 129.

In this case the Crown did not contend that the evidence was cross-admissible as similar fact evidence, but treated it as evidence which went to the nature of the relationship between the accused and his two daughters. His Honour directed the jury that the evidence was admitted: [67]

…only for the limited purpose of determining whether a sexual relationship existed between the complainants, [OA] and [HI] and their father, thereby enabling the evidence relied upon by the Crown, in proof of the offences with which he has been charged, to be assessed and evaluated within a realistic contextual setting.

[67]For a very useful discussion of the different ways in which relationship evidence may be relevant see R v Nieterink [1999] SASC 560, [42]–[47].

In my opinion it is doubtful whether the evidence of uncharged acts was cross-admissible to show the context in which the alleged assaults of both daughters occurred. However, the evidence of uncharged acts, including the kitchen incident,[68] may well have been admissible as similar fact evidence in support of the Crown case on counts 1-3 and 6-8, though not in support of counts 4 and 5 (the alleged indecent assaults of SS).[69] The evidence of both daughters as to the charged and uncharged acts revealed a pattern of similar behaviour. Both daughters alleged they were sexually abused, by being forced to masturbate the appellant, though OA also alleged an act of sexual penetration. These acts allegedly occurred in the family home when the other children were also there.[70] This is a case in which: [71]

…the evidence of one [daughter] about what happened to her was so related to the evidence of [other daughter] about what had happened to them that the evidence of the [other daughter] provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect.

[68]The kitchen incident standing alone might not have been admissible on this basis, but when considered in combination with the other incidents, it could be regarded as similar fact evidence.

[69]Cf R v FTG [2007] VSCA 109.

[70]Cf R v PJO [2001] VSCA 213, [16]–[17] (Buchanan JA).

[71]R v Papamitrou (2004) 7 VR 375, 375.

In the event, however, it is unnecessary to resolve this question. Counsel for the appellant did not contend that his Honour erred in treating the evidence of uncharged acts (other than the kitchen incident) as cross-admissible.

Was the jury direction sufficient in the circumstances?

The learned trial judge directed the jury that they could only use the evidence of uncharged acts for the purposes of evaluating the charges in a realistic context, rather than directing them that they could use it as similar fact evidence. As I discuss below, the jury was adequately warned against reasoning from propensity. In my opinion the appellant was not disadvantaged because the jury was told the evidence could be used to assess the nature of the relationship, rather than for a more directly probative purpose as similar fact evidence.[72] Directing the jury to the common features of the alleged acts may well have been more prejudicial to the accused than simply telling them that the evidence could be used as evidence of the context in which the charged acts occurred.
[72]The present case is different from BRS v R (1997) 191 CLR 275, 294 (Toohey J) 301–2 (Gaudron J) 310 (McHugh J) 330 (Kirby J) where the majority of the High Court held that the trial judge’s failure to direct the jury, that they could not reason that the accused was the sort of person who would engage in the conduct the subject of the charges, had given rise to a miscarriage of justice, even though there had been a considered decision by counsel not to require such a direction. As I explain below, in the present case the judge gave a warning against the dangers of propensity reasoning.

However, regardless of the basis on which the evidence of uncharged acts was treated as cross-admissible, there was a danger that the jury would reason that the accused had committed the offences with which he was charged, simply because he was seen as having a general propensity to do so. It was therefore essential for the jury to be warned that if they found that the appellant engaged in particular uncharged or charged acts involving sexual abuse of one or more complainants they could not reason that he was therefore likely to have committed the acts with which he was charged.

Although this was not directly addressed in the grounds of appeal, the importance of giving a warning against propensity reasoning was heightened because of the evidence given by OA as to how she first recalled the alleged abuse. She said, in examination-in-chief, that her memory of the sexual assaults by her father had been triggered in 2002 by a conversation with her mother, who had said that her father had had to get rid of a woman with two little girls who had lived at his place because one of the girls had accused the appellant of sexual assault. No objection was made to the admission of this evidence by defence counsel. In addition, in cross-examining the appellant counsel for the Crown put it to the appellant that he ‘had a go’ at SS as well.

The nature of the warning which must be given about the dangers of propensity reasoning has been set out in a number of decisions.[73] In R v Best[74] Callaway JA set out the elements of the warning which must be given to the jury, about the dangers of propensity reasoning in the context of relationship evidence. He said: [75]

Three things have to be done. The first is to explain to the jury the limited purpose for which the relationship evidence is admitted. The second is to direct them not to substitute that evidence for evidence of the offences charged. The third is to warn them against reasoning that, because the accused engaged in other misconduct, he is the kind of person who is likely to have committed those offences.

[73]See for example R v Vonarx [1999] 3 VR 618, 624-625; R v Grech [1997] 2 VR 609, 614; R v Best [1998] 4 VR 603, 615; R v TJB [1998] 4 VR 621, 633 (Callaway JA); R v DCC [2004] 11 VR 129, [2] (Callaway JA). See also R v Beserick (1993) 30 NSWLR 510, 516; R v Dolan (1992) 58 SASR 501, 503.

[74][1998] 4 VR 603, 615.

[75]Ibid 615. See also R v Grech [1997] 2 VR 609, 614; R v TJB [1998] 4 VR 621, 633 (Callaway JA) R v Beserick (1993) 30 NSWLR 510, 516; R v Vonarx [1999] 3 VR 618, 624–625.

In this matter, the learned trial judge gave the following direction in relation to the allegations of uncharged sexual acts: [76]

Now you will appreciate that none of these matters are on the presentment, so why has the evidence been given about this and what use can you make of it.
The direction I give you is that you should understand that the evidence of this conduct which the accused man has not been charged with, can only be used by you if you are satisfied that in fact it occurred, and only for the limited purpose of determining whether a sexual relationship existed between the complainants, [OA] and [HI] and their father, thereby enabling the evidence relied upon by the Crown, in proof of the offences with which he has been charged, to be assessed and evaluated within a realistic contextual setting.
You should not reason, however, that the accused is the kind of person likely to commit the offences with which he has been charged, simply because this evidence of uncharged acts has been admitted into evidence.
You should also clearly understand that this evidence of other sexual activity does not, of itself, prove that the offences with which he has been charged, have been proved. You can only convict him of any of the counts alleged against him in the presentment if you are satisfied beyond a reasonable doubt that the facts alleged in a particular count, in fact, occurred.

[76]Charge 474.

His direction as to uncharged acts was immediately followed by a direction in the following terms:

The next direction I want to give you, concerns the fact that the presentment, as you know, contains eight different charges or counts. Now all of these charges are on the one document, called the presentment and that is done for convenience. It would obviously, in this case, be highly inconvenient and expensive to hold a separate trial before a separate judge and jury on each count. However, you must not allow the convenience of this procedure to usurp justice. The accused is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. It may be that the same logic applies to two or more of them and as a matter of reason, that logic will dictate the verdict in each count. But it would be quite wrong for you to say that simply because you find the accused guilty or not guilty of one count, that he must therefore be guilty or not guilty of another count or counts.
So what you have got to do is consider each count separately in the light of the evidence which applies to that particular count and ask yourselves as to each count separately, am I satisfied beyond a reasonable doubt by the evidence that he is guilty of this crime, that is the one that you are then considering. If that answer in your judgment, yes, then of course you will find him guilty on that particular count and if it is answered no, then of course you will find him not guilty on that particular count.

The warning given by his Honour in relation to the use of evidence of uncharged acts contained all the necessary elements of the warning required by R v Best and R v Grech.

Counsel submitted that the jury should also have been warned that if they found the appellant to have committed offences against one complainant, they should not reason that he was the kind of person who was likely to have sexually assaulted the others. It was said that the direction given by his Honour related only to the need to give separate consideration to the different counts and did not address the danger of improper propensity reasoning, in relation to the other counts which were charged. The jury had been given such a warning in relation to the uncharged acts, but not in relation to the charged counts. It was said there was therefore a danger that because the trial judge limited his propensity warning to uncharged acts, the jury might have thought that it was permissible for them to reason that because if they found the appellant had committed an offence covered by one count he was therefore likely to have committed the offences covered by other counts.

In R v TJB[77] Callaway JA said that, where evidence was given of charged and uncharged acts against the same complainant and a Grech direction was given in relation to the uncharged acts, it was ordinarily unnecessary to give an additional warning against propensity reasoning in relation to the charged acts, as long as a separate consideration warning was given.[78] However his Honour said that in cases where charges of sexual offences against several children were tried at the same time, and the evidence in relation to one child was not admissible in relation to the others, it was necessary for the jury to be given both a separate consideration warning and a warning ‘not to reason that, if the accused molested one child, he was the kind of person who was likely to have molested the other.’[79]
[77][1998] 4 VR 621.
[78][1998] 4 VR 621, 633; see also R v J (No. 2) [1998] 3 VR 602.
[79][1998] 4 VR 621, 633; see also R v J (No. 2) [1998] 3 VR 602, 614 (Winneke P and Charles JA), 642 (Callaway JA); R v DCC (2004) 11 VR 129, 131–132 (Callaway J).

In R v CHS it was accepted by Eames JA that: [80]

[108] The task in determining whether a direction is required in any case does not require the allocation of a case involving propensity evidence to a rigid factual or evidentiary category but rather, as Callaway, J.A. emphasised in R v J (No 2),[81] a propensity warning would be required in any situation where it was necessary and practicable to do so in order to avoid a perceptible risk of a miscarriage of justice.
…
[110] If a propensity direction was required, as to charged acts, then an examination of the charge overall might disclose that an adequate warning was in fact given, notwithstanding the fact that the trial judge did not employ language in terms that the jury must not reason from other charged acts that he is "the kind of person" who would have committed the charged offence in question. Although in Victoria the preferred form of a propensity direction should employ the "kind of person" language, a direction in terms similar to those employed in R. v. Beserick[82] may be adequate. Thus, a direction that adequately conveys that the jury should not reason that just because the applicant had done something wrong on another occasion it does not follow that he committed the offence in question may be adequate in the circumstances, depending on the language used in the context of the totality of the charge. [83]
[111] That was the conclusion reached by the Court in DCC,[84] where although a direction in terms of "the kind of man" propensity reasoning was employed only with respect to the evidence of uncharged acts the language used by the judge in his separate consideration direction was in terms very close to that which in Beserick was held to be an appropriate propensity direction concerning the evidence of charged acts. In the separate consideration direction in DCC the judge warned the jury that when considering any count they should not be influenced by "a general view" that if the accused was guilty of one count then he was guilty of other counts.
[112] R v D[85] was another instance where a direction in terms referring to "the sort of man" reasoning was employed only in the context of a discussion concerning uncharged acts, but Chernov, J.A., with whom Phillips, C.J. agreed (the judgment of Tadgell, J.A. was to the same effect), held that when taken as a whole the judge had drawn no distinction in his charge between charged and uncharged acts with respect to the danger of propensity reasoning. His Honour said that upon reading the whole of the charge he was not satisfied that the jury would have interpreted the directions about propensity reasoning as having been limited to the evidence of uncharged acts.

[80](2006) 159 A Crim R 560, 583–585 (citations in original).

[81][1998] 3 VR 602, 642–643.

[82](1993) 30 NSWLR 510, 516, as discussed in R v Grech [1997] 2 VR 609, 612-3 and R v DCC (2004) 11 VR 129, [13]‑[15] (Callaway JA).

[83]See R v DCC (2004) 11 VR 129, [57] (Eames JA), [12]–15] (Callaway JA).

[84](2004) 11 VR 129, [15] (Callaway JA), [38]–[40] (Eames JA).

[85][1999] VSCA 148, [44].

In my opinion the warning given by his Honour was adequate for this purpose. His Honour warned the jury against reasoning that the accused was ‘the kind of person likely to commit the offences with which he has been charged, simply because evidence of uncharged acts has been admitted into evidence.’ Almost immediately thereafter he told the jury that ‘simply because you find the accused guilty or not guilty of one count [they] must not reason that he must therefore be guilty or not guilty of another count or counts.’

In this case it was necessary for his Honour to warn the jury that they could not use the evidence of uncharged or charged acts against one daughter as evidence supporting the counts relating to the other daughter or as evidence supporting the counts relating to SS. His Honour warned the jury against reasoning that the appellant was ‘the kind of person’ who would have committed the offences with which he was charged, because he had committed the uncharged acts. Although his Honour did not repeat the third element of the Grech direction when he warned the jury against reasoning that if they found the appellant guilty on some of the counts, he must also be guilty on the other counts, I do not think there was a danger that the jury would have regarded the propensity warning as limited to the uncharged acts and as inapplicable to the charged acts. In my view the directions were, as a whole, sufficient to warn the jury of the danger of propensity reasoning, both in relation to uncharged and charged acts.

It has been said that jury charges should not be construed as if they are legal documents and that the test of the sufficiency of a warning must always be ‘the final impression left with the jury’.[86] As Callaway JA said in R v DCC: [87]

In every case the sufficiency of the warning depends on the facts of the case, the precise language and importantly the context. The charge should be read as a whole.

[86]R v Yates [1970] SASR 302, 306. See also R v DCC (2004) 11 VR 129, 138–139[37] (Callaway JA).

[87](2004) 11 VR 129, 134 [15].

It is fanciful to suppose that a jury would confine his Honour’s warning against propensity reasoning to the evidence of uncharged acts and not regard the warning as applicable to the acts which were the subject of the counts with which he was charged. His Honour’s jury directions clearly indicated the necessity to determine whether the elements of each count were established beyond reasonable doubt and the need to avoid reasoning that because the accused was the kind of person who may have committed some of the offences he was likely to have committed the others.[88] For these reasons I consider that ground 3 is not made out.
[88]Cf R v PLK [1999] 3 VR 567, 580 (Buchanan JA).

Ground 5(f) - The Crown concession on counts 6–8

Ground 5(f) complained that the evidence of LE, which supported the allegations of abuse against HI, should not have been admitted or been treated as a recent complaint in the learned trial judge’s jury directions.

At the trial LE, who had lived nearby and had been friendly with HI when she was a young girl, testified that HI had said to her that the appellant had touched her. She said that ‘she thought’ she was between 8 and 9 years old at the time and that this conversation occurred ‘just before [the appellant’s family] left’ the suburb or ‘round about that.’ LE said that she could not remember anything else about the incident, but that she had told her father about it and he had said that it was not their business.

LE’s evidence was treated as evidence of ‘recent complaint’ relating to the indecent assaults of HI. His Honour directed the jury in the following terms on the use they could make of this evidence:

The purpose that you, the jury, can put to such evidence is to use it as a possible test of the consistency of the victim's conduct.
Whether the victim complained or did not complain of a sexual assault at or near the time of its alleged occurrence can be regarded by you, the jury, as evidence bearing upon the credibility of the victim in complaining of it. The making of a timely complaint is a matter which the jury may regard as behaviour consistent with the truth of the victim's evidence.
In considering evidence of complaint you should bear in mind of course that it springs from the same source as the evidence of the crime. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of the complainant giving additional support to the probability that the crime happened. Its only effect is upon the credibility of the victim's story.

Neither counsel took exception to this direction.

LE was born in May 1962. If LE was aged eight or nine at the time of the conversation, it must have taken place between 1970 and 1971, that is before the alleged assaults on HI between September 1973 and September 1975 (the dates alleged in counts 6, 7 and 8 of the presentment). If, on the other hand, the conversation occurred just before the appellant’s family left Broadmeadows, the appellant’s evidence was that the family did not leave Broadmeadows until October 1981 when he, his wife and two younger daughters, moved to Lake Boga. If the complaint of touching was made shortly before October 1981, LE was then aged 19, not eight or nine as she said in her evidence.

On any view LE’s evidence that HI had told her that DD had touched her was not admissible as a recent complaint of the assaults covered by the presentment. If the conversation occurred before the alleged assaults, when LE was aged 8 or 9, it was not a complaint at all. (I note that this would also have been before the DD family moved to Broadmeadows, which according to the appellant’s evidence was in October 1972.) For that reason counsel for the Crown conceded during the hearing of the appeal that the convictions on counts 6, 7 and 8 must be set aside.

The alternative interpretation of LE’s evidence is that the conversation occurred shortly before October 1981, when it was clearly inadmissible as a recent complaint about offences alleged to have occurred some six to eight years previously. [89] It is most unfortunate that neither counsel recognised this anomaly in LE’s evidence or drew it to the attention of the trial judge.
[89]See for example R v Freeman [1980] VR 1, 6.

Because the Crown concession was only made during the hearing of the appeal, the Court did not have the opportunity to consider whether the evidence of LE might have been admissible on a different basis. Nor did counsel have the opportunity to make submissions on that issue.

As I explain in more detail below, the defence case was that OA had invented the story that her father had sexually assaulted her in 2003, because of a property dispute and her sister HI had made similar false allegations in order to support OA. Where it is said that a witness has constructed a story after the events in question, a previous consistent statement by that witness may be admissible, not as evidence of the truth of the contested facts, but to rebut the suggestion of ‘recent invention.’ In Nominal Defendant v Clements Dixon CJ explained the principle as follows: [90]

If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.

In the same case Windeyer J explained that:[91]
It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken… There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify.

[90](1960) 104 CLR 476, 479.

[91]Ibid 495 (citations omitted). See also J D Heydon, Cross on Evidence (7^th ed, 2004) 512-517 [17305]–[17315] and the cases cited therein, and R v Saragozza [1984] VR 187, 199.

As the above statements indicate, evidence can be admitted to rebut a case of recent invention even if the complaint is made some time after the alleged offences occurred. If LE’s evidence was admissible to rebut an allegation that HI invented the allegations of sexual assault, it could be argued that no miscarriage of justice occurred because his Honour mischaracterised the evidence as evidence of a recent complaint.

In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility.
The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.

[107](1999) 198 CLR 1.

[108]Ibid 14.

Hayne J said that: [109]

There is no reason to depart from the conclusion stated in Simic,[110] namely, that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Of course, if a direction is given, it must be accurate. Ordinarily, however, unless the evidence that is led about the character of the accused has an immediate and obvious connection with an issue in the case, it is better that the judge say nothing of how the jury may use such evidence in reasoning to its conclusions beyond any restatement of counsel's arguments that may be thought necessary or desirable.

[109]Ibid 57.

[110](1980) 144 CLR 319.

Gummow J agreed with the view expressed by Thomas J in his dissenting judgment in R v Falealili[111] that: [112]

[I]f the evidence of the accused’s good character is both probative and relevant the Judge will, almost as a matter of course, direct the jury as to its significance in summing up the defence case. It would be unfair not to do so. If, on the other hand, the purported character evidence is lacking in probative force and of remote relevance to the charge in issue, the Judge may decide that a good character direction is not warranted. Or the Judge may consider that it would be prudent to proffer a good character direction, but then to qualify it in order to put it in perspective having regard to the circumstances of the case. To proscribe that, whenever character evidence is adduced or elicited, a good character direction should be given and it must generally embrace both the credibility and propensity limbs of the direction is an unnecessary fetter on that discretion.

[111][1996] 3 NZLR 664.

[112]Melbourne v The Queen (1999) 198 CLR 1, 29–30 [78] (Gummow J) quoting R v Falealili[1996] 3 NZLR 664, 671-672 (Thomas J).

The purpose of directing the jury on character evidence is to ensure that they understand its relevance and how that evidence can be used in their deliberations. In this case it would have been abundantly clear to the jury that the fundamental issue was whether the complainants’ evidence should be believed. The evidence of the appellant’s good character in this case was expressed in very general terms. Although it may have had some relevance to the credibility of the appellant’s evidence, none of it related to his character at the time when the alleged offences were committed.

Counsel for the appellant at trial did not request that his Honour direct the jury on the use to be made of the evidence. In my view, the evidence was not of such probative significance in relation to the issues in the trial or to the accused’s credibility as to require the trial judge to give a specific direction about it. His Honour did not err in failing to give such a direction.[113]
[113]See also R v TSR (2002) 5 VR 627, 646-648.

Grounds 5(c), (d) and (e)

In combination, these grounds relate to the admission of OA’s evidence that there was a dinner table conversation in September 2002, which resulted in her telling her husband P that her father had sexually assaulted her when she was a child. P gave similar evidence as to the dinner table conversation and the making of this complaint. The grounds also relate to the admission of evidence of the circumstances existing at the time the assaults occurred.

These grounds also complain about the admission of HI’s evidence as to events occurring contemporaneously with the alleged assaults and her evidence that she had told her husband some years previously that she had been sexually assaulted by her father. However, as the Crown has conceded that the convictions on counts 6—8 must be set aside, it is unnecessary to consider the submissions relating to the admission of HI’s evidence that her father assaulted her.

Counsel for the appellant contended that OA and P’s evidence should not have been admitted as it was variously self-serving, hearsay and/or prejudicial to the appellant. It was also said that OA and P’s evidence-in-chief about the making of these complaints should not have been admitted, though evidence relating to this matter could have become relevant and admissible as the result of cross-examination.

The admissibility of OA and P’s evidence about the 2002 conversation

In her evidence-in-chief OA said that she, P and her father and mother were sitting around the dinner table in September 2002, and that her

mother was talking about the lady who he - he was - had once lived at my father's place with two little girls. And she went on to say that my father, lucky for my father, that he did get rid of them, because one of the little girls had made accusation of sexual assault, and lucky, the mother did not believe it.

She said that on the same evening she had told her husband about ‘what happened to me in the past.’ She also said that her relationship with her father had begun deteriorating shortly afterwards, when her husband told her son in her father’s presence ‘that if anybody ever touched him, even if it’s family, he’s got to say something’.

OA also testified that the alleged sexual abuse by her father ceased following an incident in which she and her brother and sisters had taken a day off school and gone to a shopping centre where they had stolen some items. She said that she had hoped that the shoplifting would result in the family being deported and that she had not told anyone about the abuse at the time, because ‘it’s not something you could just come out and say… it’s not easy, even today’. She said her father was strict and a little bit aggressive and that after the shoplifting incident, he shook her against the wall and floor. It was said that this evidence should not have been admitted because of its prejudicial nature.

OA’s husband (P), gave similar evidence of the dinner table conversation and of the fact that his wife had told him on the same evening that her father had sexually abused her. He said that he had later warned his son, in the presence of his father-in-law, that ‘[i]f someone was ever to touch you inappropriately, you are to tell me straight away… especially if it’s someone from the family.’ He said that the appellant was very angry at the time and that their relationship deteriorated after these incidents.

In cross-examination P was asked about the friendly relations he had had with the appellant when he came to Australia with OA. It was put to him that he later came into conflict with the appellant and his wife and that he had a plan to obtain property from them. He said that this was not the case.

HI testified that she and her sister had first spoken about the alleged sexual abuse shortly after the dinner table conversation in September 2002.

Both OA’s evidence that she had complained to her husband and P’s evidence of the complaint was hearsay. So was HI’s evidence of OA’s complaint. As I discussed in paras [95]–[96] above, evidence of a complaint to a third party may be admissible to rebut a suggestion of recent invention, though not as evidence of the truth of the allegation. This principle does not permit the admission of self–serving evidence by the witness who made the statement, but may permit admission of the evidence of the third party to whom the statement was made.

Both P and HI’s evidence of OA’s complaint would have been admissible on this basis, if it had been made well before OA and P’s relationship with the appellant disintegrated. However the evidence as to the time when the conflict arose between OA, P and the appellant is equivocal.

The appellant began discussing the transfer of part of his land to OA and her husband in April or May 2002. In July 2002 the appellant negotiated the purchase of a house to be moved to the property for OA and her husband and lent them $16,000 to assist in the purchase and removal. The house was moved to the appellant’s property in late August or early September 2002 and an agreement for the subdivision and sale of the lot to OA and her husband, and for the repayment of the $16,000, was formalised in writing in January 2003.

It was put to OA in cross-examination that it was at that time that ‘relations went particularly bad’ between her and her father.[114] She denied that this was the case. She said that her relationship with her father had deteriorated in September 2002, following the dinner table conversation and the later warning by her husband to her son which was given in the presence of the appellant. In 2004 she and her sister sought advice from a solicitor about what to do about the sexual assaults.
[114]The cross-examination on this issue is set out at para [107] above.

The appellant’s evidence was that his relationship with P began to deteriorate from August 2002 when the house was moved to his property, and that this affected his relationship with OA. He said that he and OA were still talking in January 2002. In cross-examination he said that he had got on very well with OA until September 2002. He said there was an altercation in Easter 2003, when he had locked OA and her husband out of the property. In cross-examination OA agreed that she ceased to be on speaking terms with her father in Easter 2003.

P’s evidence relates to a complaint which was more or less contemporaneous with the alleged property dispute between OA and her father. Thus it did not come within the exception to the hearsay rule which allows admission of evidence of an earlier consistent statement to rebut the suggestion that a witness’ account was invented at a later time. The fact that OA complained of the sexual assaults to her husband when relations with her father were, at least on one account, already becoming difficult, is not necessarily inconsistent with the defence case that the complaint was fabricated because of a property dispute. P’s evidence that OA told him in September 2002 that she had been assaulted by her father, and HI’s evidence of a similar conversation, were therefore not admissible to refute the defence case that OA’s allegations had been fabricated. The conclusion that I have reached on that issue makes it unnecessary for me to consider whether the admission of this evidence also infringed the ‘bolster rule’. [115]
[115]The bolster rule provides that "in general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up": R v Turner [1975] QB 834, 842. See also Palmer v R (1998) 193 CLR 1, 21–22 (McHugh J); R v GH [2005] VSCA 214.

Although OA’s evidence of her complaint to her husband and P and HI’s evidence of the same complaint was inadmissible, in my opinion its admission was not productive of a miscarriage of justice. I take that view for three reasons.

First, the issue before the jury was whether the alleged sexual assaults had occurred, or had been fabricated by OA with the support of her husband. It would have been self-evident to any jury that a complaint made contemporaneously with the alleged property dispute was no less or more credible than OA’s evidence that her father had assaulted her 30 years previously. If they did not accept her evidence that her father had assaulted her when she was a child, or they considered that there was a reasonable doubt as to whether the assaults had occurred, the fact that she told her husband about the alleged assaults in 2002 would not have altered their view as to her credibility.

Secondly, his Honour gave the following direction as to the dinner table conversation:

The next direction I want to give you concerns this conversation around a table at the house at Lake Boga in September 2002 and that is a matter that has taken some time in this case, this conversation, what it was and so on and so forth.
[OA] and her husband [P], gave evidence that this conversation took place in September 2002 at the house in Lake Boga and that the defendant and his wife… were there with the two of them around the table. Now their evidence, that is [OA] and [P], their evidence was to the effect that [the appellant’s wife] said that the defendant had told her that he had been falsely accused by one of [X’s] daughters of molesting the child in his flat and that [X] had not believed the child about this, but nevertheless thereafter, the defendant had taken her and her daughter to a hotel. There was more to it than that, of course, but that was the gist of this conversation as given in evidence by [OA] and [P].
The defendant and his wife… deny that any such conversation took place. That is a matter for you to decide as to whether this conversation took place and whether you accept their version of what was said. That is a matter for you to decide.
However, assuming you decide that this conversation did take place, you must understand that the only relevance that it has in this case is that it is said by OA to have reminded her of what she says her father did to her as a child. It is put forward as an explanation as to why she ultimately went to the police. But however you must not draw any adverse conclusions against the defendant in relation to this conversation. If of course you do not accept that the conversation took place, then that is the end of the matter.

Although his Honour did not explicitly warn the jury against treating OA and P’s evidence as evidence that OA’s father had sexually abused her, at an earlier point in his charge his Honour gave the jury a warning about the limited use which could be made of complaint evidence. In relation to LE’s evidence that HI had complained that her father had touched her, his Honour said that:

In considering evidence of complaint you should bear in mind of course that it springs from the same source as the evidence of the crime. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of the complainant giving additional support to the probability that the crime happened. Its only effect is upon the credibility of the victim's story.

Although I do not consider there was any real danger that the jury would have relied on the complaints made in 2002 to support OA’s evidence that her father had assaulted her, these warnings provided a further safeguard against the misuse of the complaint evidence.

Thirdly, and most importantly, counsel for the appellant did not object to the admission of OA’s and P’s evidence of the dinner table conversation or the subsequent complaint. Counsel not only failed to complain about the admission of P’s evidence, but actively sought its admission, as is apparent from the transcript of the voir dire relating to the admissibility of P’s witness statement and oral evidence which I set out below. The defence case was that the dinner table conversation had never occurred and that OA and P’s evidence of it was part of the plan made by OA and supported by P and HI to falsely accuse the appellant of sexual assault.

His Honour asked counsel for the Crown why she had called P. The following discussion ensued:

Counsel:I’ll explain why I called the witness, Your Honour. When I got this brief and looked at the way it had been run earlier, it was apparent to me, as I believe it was apparent to the prosecutor on the previous occasion, that the 2002 conversation is not admissible as a complaint. Now Mr Gibson who was the trial prosecutor on the first occasion, Mr Gibson indicated to the trial judge on the previous occasion at p.28 that he did not believe the 2002 conversation was admissible or that it was complaint, but that he had been requested by the defence to lead it because it was – the defence wanted it for forensic reasons, so - - -

His Honour:   Well, that’s up to them.
Counsel:        I agree with that.
His Honour:   They can call witnesses if they want to.
Counsel:I agree with that, Your Honour. Well I’ve agreed to call [P] because I asked [counsel for the defendant] during the break that we had this morning whether he wished to ventilate that issue about the 2002 conversation because it was my view also that it’s not complaint evidence and it’s not admissible, and I would have been quite happy and I would – in fact if it had been left up to me and there hadn’t been a re-trial I would not have led that evidence because it’s not admissible.
His Honour:   Well it is up to you because you’re the prosecutor before me and you decide what witnesses you’ll call, so it is up to you. Having given that commitment that you would call him, he is called and he’s now on a voir dire but I agree with you, this has gone far enough. You’ve got a statement with his evidence, I’ve allowed you to have a Basha inquiry, it’s now going into the question of the victim, his wife’s motives, you’ve gone far enough down that path. Now, what else do you want to ask the witness.
Counsel:Well, your Honour with respect just to answer my learned friend’s objection. I couldn’t have simply put that September 2002 conversation in isolation, it had to be put in some sort of context.

Counsel for the appellant wanted P to be called as a witness so that he could cross-examine P about the circumstances which led to the making of the complaint. The defence case was that the dinner table conversation had not occurred, and had been invented by OA and her husband as part of the process of fabrication.

I also note in passing that the appellant called the woman who used to stay in his house with his daughters, to testify that she had not in fact said that her daughter had alleged he had abused her. This evidence, which was intended to bolster the appellant’s credibility, is also likely to have led the jury to focus on the question whether they had a reasonable doubt as to the alleged sexual assaults, rather than on the complaints made by OA in 2002.

Having regard to all of the matters discussed above, I do not consider that any miscarriage of justice occurred as the result of the admission of P’s evidence of OA’s complaint to him.[116]
[116]See Suresh v The Queen (1998) 72 ALJR 769.

Finally, there is nothing in counsel’s claim that OA should not have been permitted to give evidence that her father had physically assaulted her or that the sexual assaults ceased after she and her siblings were caught shoplifting by the police. The circumstances in which the sexual assaults occurred and ceased was admissible as evidence of context. It was not so prejudicial to the accused that the trial judge should have exercised his discretion to exclude it.

Ground 5(g)

This ground alleged that his Honour erred by failing to give a Burns direction,[117] in relation to SS’ evidence.
[117]Burnsv The Queen (1975) 132 CLR 257, 261.

Count 5 related to an alleged indecent assault of SS which occurred when she was about 13 and went to a party at the appellant’s home. The details of the allegations are set out in paras 17 and 18 and above.

In his closing address counsel for the Crown referred to SS’ evidence about this event and continued as follows.

And it’s significant, isn’t it, that that was the second and final incident because what I’m urging to you and what I think I put to [the appellant], of course which he naturally didn’t agree with, is that he realised the game was up when she said she’d told her mum and he had a couple of goes at her and then he gave up on her and, in my submission, that’s because he’d gone far enough and he was – could see the danger. And that evidence from [SS] had a ring of truth to it…

Counsel for the appellant submitted that his Honour should have told the jury that they should not use the admission made by the appellant against him unless they were satisfied it was truthful and accurate.

In my view it was not necessary for his Honour to give the jury a Burns direction in relation to SS’ evidence (that the appellant said ‘OK’ and walked off). Unlike the situation in R v Buckley, where the alleged admission was a ‘major plank in the Crown case’,[118] the Crown here did not expressly assert that the appellant had admitted to the alleged acts. SS‘ evidence was simply an account of the events she said had occurred at the party. There was no reason for the jury to have treated it as an admission of guilt to an indecent assault.
[118](2004) 10 VR 215, [30] (Nettle JA).

Further, even if the account of the appellant saying ‘OK’ could be regarded as evidence of an alleged admission, the High Court in Burns made it clear that ‘the nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case’.[119] In the circumstances of this case it would have been more beneficial to the appellant for his Honour not to draw the jury’s attention to the fact that the appellant’s statement might amount to an admission of guilt. In his own evidence-in-chief the appellant simply denied any memory of the alleged assault on SS.
[119](1975) 132 CLR 257, 261.

Grounds 5(h) to (m)

I now consider the alleged aggregation of errors in paragraphs 5(h) to 5(m). The matters complained of include the giving of inadequate Longman and Kilby warnings (grounds 5(h) and 5(i)); the swamping of these directions by other comments made by the trial judge relating to directions on distress and the reasons for delay in complaint (j); comments made by his Honour on the ‘culture of complaint’ (k); the giving of directions which were said to reverse the onus of proof on matters in issue (l); and the references in the charge to the complainant as ‘victims’ rather than complainants (m).

Inadequate Longman and Kilby warnings

As I have said, the alleged indecent assaults of SS occurred more than 30 years ago. Because of this lengthy delay, his Honour was required to give the jury a Longman warning that:[120]

as the evidence of the complainant could not be adequately tested… it would be dangerous to convict on that evidence alone, unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

[120](1989) 168 CLR 79, 91.

At the date of the trial,[121] s 61 of the Crimes Act 1958 provided that in a trial for offences of this kind:
[121]The section was amended by the Crimes (Sexual Offences) (Further Amendment) Act 2006, to further limit the circumstances in which a Longman or Kilby warning can be given.

(1)…
(b)if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it.

(2) Nothing in sub-section (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.
(3) Despite sub-section (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which sub-section (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.

Prior to the amendment of the provision by the Crimes (Amendment) Act1997, the case law indicated that: [122]

as a general rule, the statements required by s 61(1)(b)… should be balanced by a statement that delay in complaining was a fact that the jury could take into account in evaluating the complainant’s testimony and in determining whether to believe the complainant.

[122]R v TJB [1998] 4 VR 621, 634 (Callaway JA) referring to Crofts v R (1996) 186 CLR 427 and R vHewitt [1998] 4 VR 862.

In R v TJB[123] Callaway JA said that the effect of the new s 61(3) was that a balancing comment should only be made where there was a reason to do so in the particular proceeding, in order to secure a fair trial. Callaway JA suggested that the comment could take the following form: [124]

You may take the [complainant’s] delay in complaining into account in deciding whether to accept [his or her] evidence but you should also remember that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it.

[123][1998] 4 VR 621.

[124]Ibid 634.

In this case his Honour told the jury that ‘[p]ersons who are compelled to sexual conduct normally complain about it’ and that ‘[t]he absence or delay in making complaint, on the other hand, can be used to suggest inconsistency on the witnesses part.’ Consistently with the requirements of s 61, he went on to say ‘I further direct you, however, that there may be good reasons why a young girl will not complain about conduct of this kind, if in fact it happened.’

The learned judge then made reference to a number of factors which may have been relevant in assessing the reasons why the three complainants may not have complained about the assaults at the time they occurred. These factors related mainly to counts 1–3 and counts 6–8, dealing with the complaints of the appellant’s daughters. However his Honour also referred to the fact that 30 years ago children may have been less prepared to complain about a sexual assault, because such matters were not discussed as openly at that time (the relevant passage is set out in para 194 below). He summarised the evidence of the complainants about their reasons for not telling anyone of the alleged assaults and went on to explain that in addition to its relevance to credibility, delay would ‘prevent the authorities from making a timely investigation into the complaints, and can therefore deprive you of the opportunity of examining evidence that could perhaps have been obtained at the time.’

He said that this was ‘raised as an important issue by the defence… [because] it’s almost [an] impossible task now for [the appellant] to establish an alibi’ or deal with other details contained in the complainants’ evidence. He drew the attention of the jury to the fact that the passage of time could affect ‘the memory and recall of everyone concerned’. He concluded his analysis of the issue of delay as follows:

To sum up then, you should give the evidence of these three women… close scrutiny for all these reasons which I have just talked about. You pay attention to the matters that I have outlined to you and given you directions about and warnings, and having subjected the evidence of each one of them to that careful and close attention, if you are satisfied beyond a reasonable doubt of its truthfulness you may act upon it, but I further direct you that in the circumstances of this case it would be dangerous to convict the accused on the evidence of each of them of any of the offences comprised in any of the counts unless, after subjecting the evidence to close and careful scrutiny and taking into account all the circumstances that are relevant to its evaluation and to which I have drawn your attention, and remembering the warnings I have given you, you are satisfied beyond reasonable doubt as to the truth and accuracy of their evidence. So if you have done all that, and if you are so satisfied then of course you may find the accused is guilty of such counts in respect of which you are so satisfied beyond a reasonable doubt as to the truth and accuracy of the evidence.

In the paragraphs which followed this warning, the judge again emphasised the necessity for the Crown to prove each of the elements of the offence beyond reasonable doubt.

In my opinion there was no deficiency in the jury directions which his Honour gave about the effects of delay. The judge explicitly drew the jury’s attention to the need to take account of delay in assessing the credibility of all the complainants. He referred to the forensic difficulties which the accused would encounter in mounting a defence, in circumstances where the alleged events occurred many years previously, and alluded to the fact that the memories of individuals as to the circumstances surrounding those offences were likely to have been affected by the passage of time.

Unbalanced directions on distress and delayed complaint, and on “the culture of complaint”

Counsel for the appellant submitted that the effect of his Honour’s warnings on the effects of delay had been substantially undermined by comments which were particularly favourable to the Crown case. In the case of SS it is necessary to consider whether his Honour’s reference to “the culture of the complaint” had this effect. His Honour commented as follows:

Now you can also take into account other matters [in relation to delay], and this is where your commonsense can come into play, about the culture of complaint at the time. Some of you would have been so young, I venture to say, 30 years ago, that you would not remember anything about it. Others of you are old enough to look back 30 years and say to yourselves: as distinct from today what was the culture of complaint like 30 years ago?
We all know what it's like today. Sexual molestation of children gets lots of publicity in the media. Teachers in schools encourage children to come forward if they have been molested or inappropriately touched, and so on, and you all know about what goes on today. Parents are much more open in discussing these matters with their children, and so on, but what you have got to do in this case, those of you who are old enough to remember, go back 30 years ago and say, did that sort of culture exist then or was it different, and if so did that have any bearing on these children making complaints or not? So again it's an example of you using your commonsense.

As I have said, s 61 of the Crimes Act 1958 required the trial judge to tell the jury that there may be good reasons for a delay in complaint. The matters to which his Honour refers may have been relevant in explaining that delay and I do not regard it as inappropriate for his Honour to have referred to them. Read in their context, and combined with the other warnings given by his Honour, I do not regard the direction as unbalanced in the manner complained of by counsel for the appellant. His Honour emphasised at many points during his jury directions that ultimately it was a matter for the jury to decide whether the complainants should be believed, and that it was a matter for the Crown to establish the appellant’s guilt beyond reasonable doubt.

Counsel also contended that at a number of points in his directions, the trial judge had reversed the onus of proof on matters in issue. He relied in particular on a statement made during the course of his Honour’s directions on delay, where he said:

…at the end of the day, if you find there are no good reasons for the delay you can use that finding on the question of the complainants' credibility. Just as a timely complaint can confirm credibility, a delay or no complaint can adversely affect it.

Counsel submitted that the reference to the jury ‘finding’ that there were no good reasons for delay had, in effect, required the appellant to prove his innocence. In my view that submission is not made out. Read in its context, the trial judge was saying no more than that, if the jury did not accept that there were good reasons for delay, this was relevant to their view of the complainants’ credibility.

The reference to ‘victims’

Counsel also relied upon to his Honour’s references to ‘victims’ in his jury charge. It was conceded that these references would be insufficient of themselves to require the appeal to be allowed but it was said that, in combination with the other matters complained of, they were productive of a miscarriage of justice. In my opinion this ground is not well-founded.

His Honour described the particular complainants as ‘victims’ on only one occasion. Clearly he should not have used that description of the complainants, but the reference to ‘victims’ was followed immediately by a reference to the ‘alleged crimes’.

On the other occasions when he used the word ‘victim’, his Honour did so in the course of explaining general principles to the jury. For example, he said:

Whether the victim complained or did not complain of a sexual assault at or near the time of it's alleged occurrence can be regarded by you, the jury, as evidence bearing upon the credibility of the victim in complaining of it. The making of a timely complaint is a matter which the jury may regard as behaviour consistent with the truth of the victim's evidence.

Similarly, in telling the jury that a person may have a good reason for failing to complain or delaying in complaint, his Honour said:

…as a matter of law you must accept that there may be good reasons why a victim of sexual assault may hesitate in complaining about such sexual assault. We are not talking about someone pinching someone's pocket money or shoplifting or anything. These are particularly embarrassing crimes, if you like, for the victims. So you have got to take that into account too.

It is clear from the context of these remarks that his Honour was speaking about victims generally, rather than about the particular complainants. In other parts of his charge, his Honour referred to them by name, or as ‘complainants’, ‘witnesses’ or ‘alleged victims’.

As I have said, his Honour emphasised the presumption of innocence on numerous occasions. In my opinion, this ground of appeal is not made out.

Conclusion

For the reasons given above I would allow the appeal against conviction on counts 6–8 and dismiss the appeal against conviction on counts 1-3 and counts 4-5.

Because the appeal against conviction on counts 6-8 has been allowed, it will be necessary to re-sentence the appellant for the remaining counts.

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[2007] VSCA 317

19 December 2007