R v GAE

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 91 of 1999

THE QUEEN

G.A.E.

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JUDGES:	WINNEKE, P., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6-7 October, 1999
DATE OF JUDGMENT:	25 February, 2000
MEDIA NEUTRAL CITATION:	[2000] VSCA 18	First Revision 1 March 2000

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CRIMINAL LAW – Appeal – Sexual offences – Multiple complainants – Whether verdicts unsafe or unsatisfactory.

EVIDENCE – Propensity evidence – Uncharged sexual acts – Admissibility – Probative value - Whether just in circumstances to admit notwithstanding prejudicial effect – Crimes Act 1958, s.398A(2).

EVIDENCE – Evidence of proximate complaint – Person to whom complaint made not called as witness – Admissibility – Independent confirmation not required – R. v. J (No. 2) [1998] 3 V.R. 602 followed.

TRIAL – Jury question after jury retired to consider verdict – Trial judge’s answer to jury question – Whether answer amounts to re-direction – Whether answer constitutes change in Crown case – Prejudicial effect of answer – Unanimity, certainty in verdict – Latent ambiguity – Whether risk of conviction on evidence of uncharged acts.

TRIAL – Joinder of counts – Multiple complainants – Admissibility – Underlying unity – Whether just in circumstances to admit notwithstanding prejudicial effect – Discretion to sever presentment – Crimes Act 1958, ss.372, 398A(2).

TRIAL – Unauthorised communication between tipstaff and jury – Whether fundamental irregularity – Whether capable of correction by direction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C. and Mr. A. Burgess	Henderson & Ball

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons for judgment prepared by Callaway and Chernov, JJ.A. Substantially for the reasons given by Chernov, J.A. I agree that all the grounds of appeal argued on behalf of the applicant, save and except ground 5, ought to be rejected. I think I should say, in respect of ground 2, that I do not agree that the evidence of M and S, other than that given in respect of the events at the manse, would have been admissible in a separate trial of the counts involving P. Nevertheless, in the circumstances presented to his Honour, I am satisfied that he was correct to have exercised his discretion not to sever the presentment in the manner requested. Like Callaway, J.A., I would have exercised the discretion in the same way. I also wish to associate myself with the “note of caution” which Callaway, J.A. has sounded in his reasons for rejecting ground 3. Contrary, however, to the view taken by the other members of the Court, it is my opinion that the re-direction which is the subject of ground 5 was, in the context of the trial, a material misdirection. It was a misdirection which, in my view, worked to the disadvantage of the applicant in that it invited the jury to consider certain of the counts on the presentment upon a basis different from that upon which the trial had been conducted and has led to potential uncertainty in the verdicts returned by the jury on counts 3, 8, 9 and 11.

Because my view in respect of ground 5 is a minority one, it is sufficient if I briefly state the reasons for the conclusion to which I have come. For that purpose, I am content to adopt the facts described by Chernov, J.A.

The jury question which led to the judge’s re-direction towards the end of the jury’s deliberations asked whether it was “essential that we satisfy ourselves as to what particular occasion, that is first, second, third et cetera, that the alleged acts occurred”. The question invited attention to the manner in which, up to that time, the Crown case had been particularized and, in my opinion, conducted. The first 15 counts on the presentment alleged various sexual offences committed upon the complainant M. All these offences were alleged to have occurred at Daylesford between 2 March 1981 and 20 August 1981. The offences alleged were thus of considerable antiquity having occurred some 20 years before trial when M was approximately 11 years of age. No complaint had been made until 1997 when police investigations had ensued during which M had made two statements.

As commonly happens in cases of this kind, the prosecution proposed to, and did, lead evidence from M of uncharged criminal conduct similar in kind to the offences charged which M said occurred “about once a week” and “14 or 15 times” during the same period in which the charged acts were alleged to have occurred. In order to isolate these uncharged acts from the offences charged, the prosecution particularized and presented its case by alleging that the offences charged, and which involved M, had occurred on discrete “occasions” or “episodes” within the period alleged in the presentment. The particulars were provided by way of a document which itemized the offences charged in the various counts by reference to the description given to them by M in his police statements which were attached. Thus counts 1-12 inclusive alleged offences of indecent assault, oral penetration and anal penetration said to have occurred during three separate and identified occasions in the boys’ bedroom of the family house in Daylesford. The “first occasion” was identified as “the first time” the applicant had gone further than “just tucking [M] into bed” and had put his hands on [M’s] penis. This offence was the one alleged in count 1 (indecent assault). The “second occasion” was identified as having occurred “about a couple of weeks” after the first occasion. On this occasion it was alleged that the applicant had entered the bed of M and committed the offences alleged in counts 2-7 inclusive. Counts 8 to 12 (inclusive) alleged offences which were said to have occurred on a “third occasion” which was “about a week” after the second occasion.

There were four further counts on the presentment alleging offences involving M which were said to have occurred on two other separate occasions – counts 13-15 (inclusive) alleged offences occurring at the Manse subsequent to the third occasion and count 28 alleging an offence which occurred over a year later in Kyneton.

As particularized, the conduct described as supporting counts 3 and 4, said to have occurred on the “second occasion”, was very similar to the conduct supporting counts 8 and 9, said to have occurred on the “third occasion”. In his statement M described the conduct as the applicant putting his penis between M’s legs “just below the buttocks” as a prelude to inserting “the tip of the penis” into M’s anus. Accordingly, counts 3 and 8 alleged an offence of indecent assault and counts 4 and 9 alleged an offence of anal penetration. Likewise, the conduct described as supporting count 7 (the “second occasion”) was similar to that described as supporting count 11 (the “third occasion”). Such conduct alleged that the applicant had put his hand behind the head of M and forced it down onto the applicant’s erect penis. Thus the counts alleged offences of oral penetration by “inserting his penis into the mouth of [M]”.

At trial, the prosecution conducted its case in accordance with the particulars given; the prosecutor asking M what had occurred on each of the “occasions” particularized. M’s evidence, perhaps not surprisingly, was in some respects vague and uncertain and not supportive of the case put. At the end of his evidence, and on one view reasonably open, there was doubt as to whether the conduct describing counts 3 and 4, and 8 and 9, had occurred on more than one occasion, and as to the occasion upon which it had occurred. Similar doubts arose as to the conduct alleged in counts 7 and 11, which M described as “me giving him oral sex”. When giving evidence in chief as to what had occurred on the “second occasion”, M said nothing about “anal penetration”; nor did he say that the applicant had forced his penis into M’s mouth. When asked in cross-examination about what had occurred on the “second occasion”, he said:

“I think that was the time he made me give oral to him”; and
“I think the second time is … when he put his penis between me legs. I’m not completely sure.”

When asked “What about anal the second time?”, he said:
“I’m not sure whether that was the second or third time.”

When he was further asked:
“So you can’t be sure about anal sexual contact on either the second or third occasion?”

he said:
“I’m not sure.”

When asked in cross-examination what had occurred on the “third occasion” the following exchange took place:
Q.       “… he did oral on you.”
A.       “Yes”
Q.       “Did you do it on him?”
A.       “I think so but I’m not completely sure.”
Q.“Well what do you say you can remember about the third occasion, that is the third time you say [the applicant] did something to you?”
A.“I can remember the oral and him being in bed with me, masturbation and me oral him.   I know that was about the third time.”
Q.“Anything else?”
A.“I’m nor sure whether anything else took place, it could have.”
Q.“So, it was not on the first, second or third occasion, then, that he put his penis between your legs?”
A.“I’m not entirely sure.”
Q.“Do you say it was on the first, second or third occasion that he attempted to sexually penetrate you in the anus?”
A.“No, it was after the first couple I can remember.”
Q.“Does that mean it was the third time or could it have been the fourth or fifth time?”
A.“It could have been the 3^rd, 4^th or 5^th.”

In re-examination he was asked whether he could remember when it was that the applicant had first forced M to suck his [the applicant’s] penis. M replied:
“I’m not really sure.”

He was further pressed and said:
“Round the third or fourth, I think; I’m not really sure.”

Q.       “Third or fourth what?”
A.       “Time.”
Q.       “Third or fourth occasion?”
A.       “Yes, roughly, I’m not real sure.”

At the close of the prosecution case, the judge directed the jury to return verdicts of “not guilty”, inter alia, on counts 4 and 7 for want of evidence. The jury did so.

Following the close of the applicant’s case, during which he had given evidence denying all improper sexual contact, the prosecutor addressed the jury in accordance with the manner in which the case had been particularized and presented. He referred to counts 2, 3 and 6 (being those which remained in respect of the “second occasion”) as the counts “which all relate to the second occasion that M gave evidence about” and to counts 8, 9, 10, 11 and 12 as relating “to the third occasion that [M] referred to …”.

Shortly before the jury’s question to which I have referred in paragraph 3, the jury had asked to have re-read to them the evidence (inter alia) given by M in relation to counts 3, 8, 9 and 11. It was about 15 minutes after they had retired to continue their deliberations that they returned with their question. The question provoked substantial debate between the judge and counsel, during which the prosecutor had initially submitted that, in view of concerns he had about “latent ambiguity” the “second part” of the question should not be specifically answered unless the jury wanted it. The judge expressed the view that such a course would not give the guidance the jury wanted and the prosecutor responded by putting forward a form of re-direction of a different kind. He submitted that it would be appropriate to direct the jury in respect of counts 3, 8 and 9 in the following manner:

“Count 3 relates to the first time upon which such an act occurred … whatever episode it was contained in …”; that “count 8 refers to the second time that such an act occurred … no matter which episode”; and that count 9 “refers to the first time that … the accused committed anal sex upon [M] … no matter whether it was the second, third, fourth or fifth episode, or whatever episode”; and that “if the jury are satisfied … of the occurrence of the particular act in question and that it occurred between [the dates in the presentment], then they are entitled to convict”.

Over the strong objection of trial counsel for the applicant, his Honour re-directed the jury substantially in the manner suggested by the prosecution. It is that redirection, given in the terms set out in the reasons for judgment of Chernov, J.A. which, in my view, constituted a miscarriage of justice.

In a case such as this, where the Crown has charged a multitude of sexual offences involving multiple complainants, and alleged to have occurred many years previously, the problems confronting an accused person in defending himself are manifest. Almost inevitably the counts will be framed on a “between dates” basis corresponding to the broad time frame when the relationship between the accused and the complainants existed. Those difficulties are frequently compounded because one or more of the complainants will give evidence of criminal conduct, similar in nature to the offences charged, on occasions other than those alleged in the presentment. In this case, those problems were present, at least in respect of the charges alleging sexual offences involving M. It was, as I have said, to meet those difficulties that the Crown gave particulars and presented it’s case in the manner which I have described. It could have, but did not, particularize its case by alleging that the charged offences were the “first” or “second” of their kind which the accused committed in respect of a particular complainant (cf. Director of Public Prosecutions v. His Honour Judge G.D. Lewis[1]). Rather it chose to allege that the offences charged occurred on discrete “occasions” and in multiples. It seems to me that, in those circumstances, it amounted to a misdirection for his Honour to have told the jury towards the end of their deliberations that they could depart from the manner in which the Crown had particularized and presented its case and to tell them that they could find the accused guilty if satisfied that the particular offence had taken place at any time between the dates specified in the presentment, even though they were not satisfied that it had occurred upon the “occasion” or in the circumstances alleged by the Crown. Having regard to the way in which the Crown case had been presented, it was, in my opinion, incorrect to have directed the jury that it was the Crown case that count 3 “relates to the first time such an act … occurred, whatever episode it took place in”; that its case on count 8 was that it “refer(red) to the second time such type of act … occurred, no matter what episode it occurred in”; or that “count 9 refers to the first time the accused man committed … anal sex upon or with [M] – whether the third, fourth or fifth episode of sexual activity that alleged act occurred in”. Such a direction, in my view, also embraced an invitation to the jury to depart from the way in which the Crown had conducted its case in respect of count 11 and amounted to an instruction that they could convict on that count, provided that they took the view that the conduct alleged in that count had occurred upon any occasion within the period described in the presentment. In my opinion, not only was it palpably unfair to the accused to have allowed the jury, at the “11^th hour”, to depart from the confined manner in which the case had been presented to them (cf. King v. R.[2]; R. v. Falconer-Atlee[3]), but it also tainted their verdicts on counts 3, 8, 9 and 11 with uncertainty. I cannot accept that unfairness was avoided simply because the applicant’s defence was one of broad denial of sexual misconduct. His defence also embraced an assertion that the offences charged had not occurred in the manner particularized by the Crown. That much, as I see it, was implicit in counsel’s cross-examination. The fact that counsel did not contend as much during final submissions does not appear to me to be decisive.
[1][1997] 1 V.R. 391.
[2](1986) 161 C.L.R. 423 at 432 per Dawson, J.
[3](1973) 58 Cr.App.R. 540 at 545-6.

It seems to me that the direction has produced uncertainty in the verdicts on counts 3, 8, 9 and 11. Counts 9 and 11, for example, respectively alleged an act of anal penetration and a particular form of oral penetration. It was the Crown case that such acts had occurred on both the “second” and “third” occasions. In accordance with the judge’s direction, the jury had acquitted the applicant of committing such acts on the “second occasion” for want of evidence. Having regard to the course of the trial, and the question which the jury asked, it is conceivable that the jury were satisfied that each such act had occurred only once, but were not satisfied as to the “occasion” upon which it had occurred. In directing the jury that they need pay no heed to the “occasion” upon which such conduct had occurred, it seems to me that there is a risk that the jury has convicted the applicant of an offence of which he had already been acquitted. In truth, it was not the Crown case that the offences charged in counts 9 and 11 represented the “first time” such offences had occurred. The Crown case, as presented, was that the offence alleged in those counts had been committed on a previous occasion (counts 4 and 7), but those counts had failed for want of adequate proof. Furthermore, in directing the jury that it was not essential that they be satisfied that the offences charged in counts 3, 8, 9 and 11 had occurred on any particular “occasion”, there has arisen, in my view, the possibility that the verdicts returned are “compromised” in the sense that some jurors were of the view that the conduct charged had occurred on one of the “occasions” specified by the Crown and others were of the view that it occurred on another occasion. It was to avoid this type of “latent ambiguity” that the Crown had presented its case by reference to particular “occasions”. By permitting the jury to consider the charges, at the last moment, on a discretely different basis, it seems to me that the risk of latent ambiguity, which the Crown had sought to avoid by confining the charged conduct to particular “occasions”, necessarily arose. The potential for ambiguity in the verdicts on the counts which I have identified is, in my view, much the same as that discussed by Dawson, J. in S. v. R.[4].
[4](1989) 168 C.L.R. at pp.274-6.

It is for these reasons that I would have been prepared to quash the verdicts on counts 3, 8, 9 and 11 and, in the circumstances, to have entered verdicts of acquittal on those counts. Having regard to the fact that my view in respect of ground 5 is not in accord with the view of the majority of the Court, it is not necessary to go further.

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Chernov, J.A. They enable me to state my own conclusions with relative brevity.

Grounds 1, 4 and 7

I agree with Chernov, J.A. I wish only to add that, in the end, ground 4 raised a very narrow point for decision. Mr. Tehan conceded that that ground could not be made out unless the communication with the tipstaff constituted a fundamental irregularity of the kind described by Brennan, Dawson and Toohey, JJ. in Wilde v. R.[5] It is plain that the irregularity was not of that character.

Ground 2

[5](1988) 164 C.L.R. 365 at 372-373. See also Glennon v. R. (1994) 179 C.L.R. 1 at 8 and Krakouer v. R. (1998) 194 C.L.R. 202 at [23].

Three points must be borne in mind. First, this ground relates to severance and not to admissibility. The only reason mutual admissibility has to be considered is that, if all the evidence was mutually admissible, there was no point in severance. Severance would have meant that the whole of the evidence was presented twice. Secondly, severance was sought at the trial by reference to complainants and not by reference to counts. At most it would have resulted in a H trial and a P trial[6]. Thirdly, no complaint is made about the directions that were given with respect to the evidence that was received.
[6]Mr. Tehan accepted that the judge was correct in refusing the application so far as M and S were concerned.

Bearing in mind that severance was sought by reference to complainants and not by reference to counts, all the evidence would have been admissible at a separate H trial. The directions might have restricted the jury's use of the P evidence to the manse counts, but all the evidence could have been received. The manse evidence would have been admissible at a separate P trial but I doubt that the Daylesford and Kyneton evidence would have been admissible at that trial.

Even if the Daylesford and Kyneton evidence would not have been admissible at a separate P trial, that does not mean that the presentment should have been severed. In the circumstances that I have described, it was well within his Honour's discretion to refuse severance and rely on the directions that he would give to the jury. If I may respectfully say so, I would have exercised the discretion the same way.

Ground 3

I agree with Chernov, J.A. on this branch of the case, substantially for the reasons that his Honour has given, but I wish to sound a note of caution.

Over the last ten years there has been much concentration on the warnings that should be given to the jury when relationship evidence is admitted at a trial for a sexual offence. (I add the last few words because relationship evidence is by no means limited to such offences. There are many other contexts in which it is relevant, including crimes of violence and drug offences.) The cases include R. v. Dolan[7], R. v. Beserick[8], R. v. Vonarx[9] and R. v. Grech[10]. Such concentration may have deflected attention from the anterior question whether the evidence is admissible at all in a particular case. Since the coming into force of s.398A of the Crimes Act 1958 it has been admissible only if its probative value is such that it is just to admit the evidence despite any prejudicial effect it may have on the accused[11].
[7](1992) 58 S.A.S.R. 501, esp. at 503.
[8](1993) 30 N.S.W.L.R. 510, esp. at 516.
[9]Shortly to be reported, Court of Appeal, 15th November 1995 at 10-13.
[10][1997] 2 V.R. 609.
[11]R. v. Best [1998] 4 V.R. 603 passim but esp. at 616.

Where there is only one count on a presentment, a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue. In such a case relationship evidence is clearly probative and its probative value usually transcends its prejudicial effect[12]. This case was very different. With so many counts on the presentment relating to M, the probative value of the uncharged acts was much less but the prejudicial effect of that evidence was also diminished. I would not uphold ground 3 here, but a different answer might be given in a different case.

Ground 5

[12]R. v. Best at 611 line 45 - 612 line 29.

Mr. Tehan advanced two distinct contentions. The first was that the Crown had confined its case by relating each count on the presentment to a particular episode, so that, for example, the prosecution would succeed on count 9 only if the jury were satisfied that the act of sexual penetration charged in that count took place in the course of the third episode that M described in his evidence. The second contention was that, in the light of the answer his Honour gave to the jury's question, they may have convicted on an uncharged act if it satisfied the description in one of the relevant counts and occurred between the specified dates.

As to the first contention, I am not persuaded that the Crown confined its case in the manner suggested. Where a large number of sexual offences has allegedly been committed over a period of months or years, the evidence will almost inevitably be presented by the recounting of particular episodes. It does not follow that the episode becomes an essential component of the Crown case. It is simply part of the complainant's description of what happened. Depending on the circumstances, it may be logically equivalent to a statement that the accused molested the complainant when they were watching television rather than earlier in the afternoon or later in the evening.

Moreover, if the Crown case had been confined in the manner for which Mr. Tehan contended, there should have been directed acquittals on all counts in respect of which M said that he did not know during which episode the offence occurred. If it was an essential part of the Crown case that the offence occurred in the course of a particular episode and defence counsel was conducting the applicant's case on that understanding, it is very unlikely that he would have failed to notice a patent gap in the prosecution's evidence and make the appropriate application.

The second contention has caused me more hesitation, because of his Honour's reference, at the instance of the prosecutor, to "the first time" and "the second time" that particular conduct occurred. The Crown had avoided any latent ambiguity by particularizing its case. It appeared, in discussions between Bar and Bench, now to be avoiding such ambiguity by a different method that would permit the jury to convict on what had previously been uncharged acts. At 992-993 of the transcript, for example, the following exchange occurred:

"HIS HONOUR: Well it seemed to me that the jury is entitled, if they're satisfied that the act occurred as described by the witness, and accepted that it was the first time such act occurred, whether it's – using your word, first, second, third or whatever, episode of sexual activity then they'd be entitled to find the accused man guilty.
[PROSECUTOR]: Yes. Subject to the fact that there has been some evidence of uncharged acts, and just to make it absolutely clear, Your Honour, that's why I suggested the references to the first act of its kind, in case it's suggested that by reason of the mention of uncharged acts – and I think the accused does mention uncharged anal acts to make it absolutely clear, because that's the only count of anal sex on the presentment in respect of [M], the others have – the other one that was there has gone, he didn't give any evidence about it, so it must be the first act of anal sex, and that's what the Crown relies on.
Insofar as it may be suggested that because there's a reference to uncharged anal acts there's an ambiguity, there can't be an ambiguity if Your Honour adds that part in your direction."

The test is not, however, what the prosecutor intended but how the direction would have been understood by the jury. Both when the evidence was led and in the course of the charge his Honour distinguished between charged and uncharged acts. He also related the evidence to each count, reading the evidence-in-chief and saying that that was the evidence on which the Crown relied in relation to that count[13].
[13]Reference was also made in the charge to cross-examination.

In my opinion the jury would not have understood the answer to their question as changing the evidence on which the Crown relied in relation to each count or as transferring any conduct from the category of uncharged acts to the category of charged acts. The jury were concerned only to establish that the particular episode in the course of which an offence was committed was not an essential part of the Crown case. Notwithstanding the references to "the first time" and "the second time", they would have derived from his Honour's direction no more than an answer to that question.

In agreement with Chernov, J.A., I would dismiss the application.

CHERNOV, J. A.:

Introduction

On 10 March 1999 the applicant, who is now aged 59 years, pleaded not guilty in the County Court to a presentment containing 28 counts. Counts 1 to 25 alleged sexual misconduct by him in relation to two brothers, M (then aged 11) and his brother S (then aged 8) between 2 March and 20 August 1981 in Daylesford. I shall call their family “the H family”. Count 28 alleged that the applicant indecently assaulted M in Kyneton in early 1983 (“the Kyneton count”) and counts 26 and 27 alleged indecent assault and gross indecency on a person under the age of 16 years, namely, P (then aged 10) in Daylesford between 2 March and 31 December 1981 (“the P counts”). Of the first 25 counts, counts 1 to 12 and 21 to 25 related to alleged sexual misconduct on the part of the applicant against M and S in their home in Daylesford (“the Daylesford counts”) and counts 13 to 20 related to sexual misconduct on the part of the applicant against the two complainants in the manse in Daylesford (“the manse counts”).

The trial judge directed acquittal on counts 4, 5, 7, 21 and 24. The jury returned verdicts of not guilty on counts 12, 13, 14, 16 and 28 and convicted the applicant on all other remaining counts. After hearing a plea in mitigation made on his behalf, the trial judge sentenced the applicant on 23 April 1999 to a total effective term of imprisonment of 7 years with a non-parole period of 4 years. The applicant seeks leave to appeal against the convictions on seven grounds. The first six grounds are stated in the relevant notice filed with the Registrar on 7 May 1999. The last ground was added pursuant to leave granted by the Registrar on 1 October 1999. An alternative to that ground was added by leave of the Registrar on 4 October 1999. The stated grounds are these:

(a) The convictions are unsafe and unsatisfactory (ground 1).

(b) The trial of the applicant miscarried because his Honour did not order severance of the presentment (ground 2).

(c) His Honour erred in allowing the Crown to adduce evidence of uncharged acts by the applicant (ground 3).

(d) His Honour erred in failing to discharge the jury upon application, after they had improper communications with his Honour’s tipstaff during the course of which, inter alia, the tipstaff purported to answer a question from the jury foreman (ground 4).

(e) His Honour erred in answering a jury question as to how the jury should interpret evidence of various witnesses, whereby through his direction he changed the evidentiary basis of the Crown case to one different to that which had been led by the Crown (and met by the applicant) and gave an instruction to the jury which was capable of causing them to rely upon evidence of uncharged acts to support a conviction on various counts (ground 5).

(f) The trial miscarried in that the jury’s deliberations resulted in inconsistent verdicts and/or compromise verdicts on various counts (ground 6).

(g) His Honour erred in ruling that evidence of the complaint by one of the complainants to his mother was admissible or alternatively, his Honour erred in failing to direct the jury that the statement of complaint from the complainant to his mother was, in the circumstances, of little weight and in misstating the evidence of that complainant in his charge to the jury (ground 7).

The applicant’s sixth ground of appeal and the second limb of the alternative submission under ground 7 were not pressed at the hearing of the application.

Before examining the submissions made on behalf of the applicant in support of the argued grounds, it is necessary to summarise the circumstances giving rise to the alleged offences.

Surrounding circumstances

Daylesford and Smeaton are two small townships approximately 25 kilometres from one another, in north-western Victoria. In 1981 each of the towns had a Presbyterian Church. The one in Daylesford was known as St. Andrew’s Presbyterian Church. Its manse, which was a large, two-storey, Edwardian-style building of many rooms, was located next to the Church and the applicant, who was then a widower, resided there from the time of his appointment as Minister of the Daylesford and Smeaton Presbyterian parishes on 27 February 1981 until he ceased to hold that position on 1 October 1981. The H family which had moved to Daylesford in late 1980 attended St. Andrew’s Church. Members of P’s family were parishioners at the Smeaton Church.

Not long after he arrived in Daylesford, the applicant befriended the H family and visited its home on a regular basis, approximately once per fortnight. The H family had three boys. The eldest was D and the other two were the complainants, M and S. The three boys shared a bedroom with each of the two complainants occupying an “L” shaped bunk bed while D slept in his own bed.

The extent to which the applicant became involved with that family can be gauged from the fact that he would normally enter the house informally by the back door, stayed for dinner and, almost at will, engage in the conduct with the two complainants which is summarised below. It was alleged that shortly after his visits began, he engaged in the practice of playing wrestling games with the two complainants on the loungeroom floor and then, usually when he had them seated on his knee, gave them a “whisker rub” by rubbing the stubbles on his chin against the back of the boys’ necks. On occasions, it was said, he blew on their stomachs as one may do to a baby. In the course of such “games”, the applicant sometimes fondled the boys’ genitals. It was further alleged that, on the pretext of putting the younger boys to bed and reading them a story, the applicant remained in their bedroom for some time after they had gone to bed and engaged in various acts of sexual misconduct with one or other of them, including masturbation, fellatio, simulated sexual intercourse and anal intercourse. The boys’ father gave evidence of seeing the applicant on occasions coming out of their room with the state of his dress in disarray. On one occasion, he said it was very noticeable that the applicant had an erection.

The manse counts were concerned with alleged sexual misconduct by the applicant with M and S at the manse of St. Andrew’s Presbyterian Church. It was alleged that the applicant invited them to stay with him overnight at the manse on a Saturday in 1981, it being arranged that on the following day they would go to Sunday School and thereafter be taken home by their parents. There was some discrepancy in the evidence of the two complainants as to precisely what occurred at the manse during their stay. For example, M said in his evidence that they were given a bath by the applicant whereas S said that they were showered by him. There was also a difference between the witnesses as to the sexual acts that were performed by the applicant in relation to them. Each said, however, that they received a powder rub from the applicant while they were naked during which he committed various sexual acts in relation to each of them and that at his request, they committed sexual acts with him while he was in a state of undress. Those acts included masturbation, rubbing of the genitals and fellatio.

The P counts were concerned with the applicant’s alleged sexual misconduct towards P at the manse, also during 1981. P, who was at the relevant time aged 11 years, was an attendee at the Smeaton Presbyterian Church Sunday School. During 1981, so it was alleged, the applicant invited him and his friend J, then also aged 11, to see a movie called “The Lion, The Witch And The Wardrobe”. The arrangement was that after the film they would stay overnight at the Daylesford manse and would be taken home on the following day by their parents. After viewing the film in Geelong in a hall hired by a local religious organisation, the applicant returned with the two boys to the manse and showed them their upstairs bedrooms. Eventually, the boys settled down to watch television in the downstairs loungeroom in the course of which, so it was alleged, the applicant suggested that they be given a “massage”. The applicant requested that J remove his clothing down to his underpants and lie down on a large rug on the floor whereupon he commenced rubbing powder over the front of the boy’s body. P said that he observed that during that episode the applicant placed his hand down the front of J’s underpants. After massaging him for approximately 10 minutes, the applicant asked P to strip down to his underpants and lay face up on the floor. The applicant then began to rub powder over the front of his body using both his hands and it is alleged that as he did so, he placed his left hand down the front of the boy’s underpants and brushed his hand over his penis. It was said that the applicant then instructed the boys to remove their underwear and to lie next to each other on the floor. He then allegedly removed all his clothing and rolled the two boys up in a rug and began to jump on them and wrestle with them on the floor for approximately 30 minutes.

The Kyneton count alleged sexual misconduct by the applicant with M at the his family’s home in Kyneton shortly after they had moved there in early January 1983. It was alleged that M was home in bed, having taken the day off from school due to illness and that the applicant, who was visiting his parents, entered his bedroom, pulled the blankets back, pulled his pyjama pants down and commenced to masturbate his penis.

Defence

The applicant gave evidence denying the alleged improper sexual conduct referred to earlier. He admitted that he had become a friend of the H family and that he visited them regularly and usually had a meal with them. He also agreed that he wrestled with the boys and, on occasions, gave them a “whisker rub” but claimed that that was all done in good spirits in front of the parents and that the boys enjoyed playing around in that way. The applicant also agreed that on occasions he put the boys to bed and in the course of so doing talked to them about various subjects and often read stories to one or other of them while he sat next to him on his bed. He said that the winter was very cold at Daylesford and the boys’ room had no heating so on some occasions he pulled the boys’ blanket over part of him in order to gain warmth but he denied that he hopped into their bed. He made the point that at all times the door of the boys’ bedroom was open and that the parents were within earshot in the lounge or the kitchen. He denied that he acted improperly towards the boys in their Daylesford home or towards M in Kyneton. He contended that, as a matter of common sense, it was inherently unlikely that he would have misbehaved in the way alleged, given particularly that the door of the boys’ bedroom was always open, the parents were within earshot and a short distance away and there was always the risk of them walking in.

As to the counts relating to conduct at the manse, the applicant agreed that M and S then P and J stayed with him overnight on separate Saturday evenings at the manse and that he gave them a powder rub (like that given to sportsmen) during their stay but he denied any wrongdoing.

I now turn to consider the submissions made in respect of the argued grounds.

Severance

The first ground that was argued (ground 2) was that the trial miscarried because his Honour refused to sever the presentment. Before the jury was empanelled, counsel for the applicant (not counsel who appeared on this application) applied to his Honour for severance of the presentment. The primary submission was that there should be a severance so that there would be a separate trial in respect of each complainant. The “very strong secondary position” was that the P counts be severed. After hearing argument, his Honour refused the application.

Before us, Mr. Tehan who appeared with Mr. Burgess for the applicant, accepted that his Honour was correct in refusing to sever the presentment in relation to the two brothers. He also accepted that there was mutual admissibility of evidence as between the counts relating to those complainants. He contended, however, that his Honour should have severed the P counts principally because there was insufficient similarity between the circumstances relating to those counts and those applicable to the counts involving the two brothers to allow for mutual admissibility of the respective evidence. Mr. Tehan also submitted that, in any event, his Honour failed sufficiently to take into account in exercising his discretion a number of relevant matters by reason of which his decision was vitiated.

On the question of the similarity of the relevant evidence that was to be led by the prosecution, his Honour held that it disclosed that the common features of the applicant’s conduct involved the preying upon and behaving in a sexually predatory manner towards young boys of families within the parish community. By reason of those common features and the overall pattern of the applicant’s behaviour, his Honour was of the opinion that the evidence of each complainant was admissible in respect of the other complainants.

A convenient starting point in examining the question of whether his Honour erred in not severing the presentment as is now contended by the applicant, is to see if the evidence of one complainant was admissible in relation to the counts pertaining to the other complainants. As Callaway, J.A. said in R. v. TJB[14]:

“The true position was, [before the 1987 amendments] and remains, that where evidence on one count is admissible on another, there is no point in ordering separate trials: see De Jesus v. R. at 10 per Dawson, J. The prejudice to the accused must usually be borne and mitigated, so far as is possible, by appropriate directions to the jury. The significance of evidence on one count being inadmissible on another count is that it makes it practicable to order separate trials if there is reason to do so. The reason is not the inadmissibility of the evidence but, in the case of sexual offences, the prejudice to the accused coupled with a doubt about the efficacy of any warning against misuse of the evidence”.

In other passages of his judgment in that case, his Honour observed, in effect, that the question of severance arises in practice only if the evidence on one count is inadmissible on another[15].

[14][1998] 4 V.R. 621 at 626.

[15]see, for example, 629, 630, 631.

I therefore turn to consider first whether the proposed evidence of the two brothers and P respectively was cross-admissible in relation to the relevant counts. It seems clear enough that, for example, the evidence of the applicant’s conduct in relation to the P counts would constitute propensity evidence if it were led in respect of the manse counts and vice versa. Such evidence would be admissible under s.398A(2) of the Crimes Act 1958 if it were relevant to the counts in question and the court considered that in all the circumstances it was just to admit it notwithstanding its prejudicial effect. As the President pointed out in R. v. Tektonopoulos[16] in determining whether the evidence of other criminal acts is admissible much depends upon the purpose for which the evidence is being tendered. In this case, the evidence in relation to the P counts, for example, would be tendered in the context of a trial relating to the manse counts involving M and S as “similar fact” evidence to prove the fact that the offences in question have been committed and that the applicant was the one who committed them. The evidence would go to establish the applicant’s sexual appetite for the young boys and the improbability of the three complainants making those allegations unless they were true.
[16][1999] V.S.C.A. 93 at [24]-[25].

In determining the issue of the admissibility of such evidence, it is convenient to do so first in the context of the evidence going to the manse counts and the P counts respectively. In other words, would the evidence going to the manse counts be admissible in relation to the P counts and vice versa? Mr. Tehan argued that there was not sufficient similarity in the evidence to make it cross-admissible. More particularly, he contended that the essential similarity in the evidence relating to the two sets of counts was confined to:

-          the powder rub episode
-          the alleged sexual assault that occurred during the powder rub.
Mr. Tehan agreed in argument that there were other relevant similarities such as the young age of the boys, that they came from families which were parishioners of the applicant and that during the powder rub they and the applicant were in a state of whole or partial undress. But he contended that these were not essential similarities and that in any event, there were material dissimilarities between the two sets of alleged offences. For example:
-          the circumstances leading to the boys’ visit to the manse were different
-what occurred shortly before and shortly after the powder rub was different as between P and the two brothers
-the powder rub which was applied by the applicant was administered differently to P and to the two brothers.

In my view, however, the evidence in relation to the P counts was probative in respect of the manse counts and vice versa. The “underlying unity” of the evidence[17] was such as to make it relevant in respect of both sets of counts. In my view, the relevant similarities include the following:

(a)The applicant used his position as Minister to persuade the parents, who were his parishioners, to allow the boys to stay with him overnight in the manse. In the case of the H family, he was also a regular visitor to their home. In the case of P and his friend, he took them to a film at Geelong and probably used that fact as a stepping stone to persuade the parents to allow the boys to stay with him overnight.
(b)The applicant gave each of the boys a powder rub and in the process, engaged in sexual behaviour towards them.
(c)In each case, the powder rub was administered while the boys were naked or almost naked and while the applicant was in a state of undress.
(d)In each case, the applicant engaged in further sexual behaviour towards the boys.
(e)Each of the boys was very young.

[17]R. v. Tektonopoulos at [30]; R. v. D [1999] V.S.C.A. 148 at [49] – [53].

The remaining question is whether in all the circumstances it is just to admit that evidence notwithstanding its prejudicial effect. There is probably little doubt that the applicant would be prejudiced to some extent if the evidence of the applicant’s conduct at the manse in relation to the two brothers and in relation to P were admitted in respect of both sets of counts. In my view, however, for reasons already given, its probative value would be significant and would outweigh its prejudicial effect.

Thus, it seems to me that the evidence relating to the manse counts would be admissible in respect of the P counts and vice versa.

I now turn to consider whether in addition to the evidence relating to the manse counts, the evidence pertaining to the Daylesford and Kyneton counts would also be admissible in relation to the P counts and vice versa. In my view, the Daylesford evidence would be relevant to the P counts. Just as in the case of the manse evidence, the evidence pertaining to the Daylesford counts would go towards establishing the applicant’s modus operandi or the special way in which he gained access to young boys from parishioner families. In each case, he procured access to the boys and isolated them from their parents because of his position as Minister of their Church which gave him an elevated moral status in the eyes of those parishioners. In the case of P, for example, he obtained custody of the boy and his friend on a basis connected with his ministry, taking them to the screening of a film at a venue organised by a religious organisation and then back to the manse. This gave the appearance of a Minister looking after the welfare of his parishioners, but in fact it isolated the young boys from their parents for the real purpose of enabling the applicant to satisfy his sexual desires. He engaged in a like pattern of behaviour in respect of the two brothers in relation to the manse counts. Similarly, in relation to the Daylesford counts, he created the appearance that his conduct was part of his function as Minister of their Church, namely, keeping contact with parishioners and looking after the spiritual and general welfare of their children. In this way, he gained access to the two boys in their bedroom, away from their parents on the pretext that he would read them a story or otherwise establish an appropriate relationship with them. He thus gained access to them in circumstances which were not available to others. This alleged conduct in relation to the Kyneton count was the continuation of his earlier conduct with the two brothers and the same considerations apply to it as the other counts. Each of the episodes revealed a contrivance on the part of the applicant to gain access to the children away from their parents for the purpose of satisfying his sexual desires.

The next question is whether in all the circumstances, it would be just to admit the P evidence in relation to the counts concerning the two brothers notwithstanding its prejudicial effect. In my view, the probative value of that evidence would outweigh its prejudicial effect and, therefore, it would be just to admit it in respect of all counts pertaining to the two brothers. Perhaps the more difficult question is whether the admission of their evidence not only with respect to the manse counts, but also the Daylesford and Kyneton counts, would be so prejudicial to the applicant that it would not be just to admit it in relation to the P counts. In my view, however, its probative value would outweigh its prejudicial effect. It was conceded by Mr. Tehan that the evidence relating to the Daylesford and Kyneton counts and the evidence which goes to the manse counts was cross-admissible. No doubt that was because the modus operandi of the applicant, for example, in the H family home in securing access to the young boys, was relevant to the manse counts. For like reasons, in my view, such evidence is also relevant to the P counts which were also concerned with the applicant’s conduct at the manse.

Thus, given that the relevant evidence was cross-admissible, there would be no point in ordering separate trials. Quite the contrary, in the circumstances, there is every reason for not ordering severance. Any order for severance would result in the same evidence being led twice, with no material gain to the applicant; it would only serve to impede the proper and efficient administration of justice.

Notwithstanding that the relevant evidence was cross-admissible, the trial judge retained what Callaway, J.A. described in TJB[18] as a “true discretion” under s.372(3) of the Crimes Act, whether to order severance and as his Honour noted in that case[19], an appellate court should review that discretion on the ordinary principles applicable to discretionary decisions in criminal cases. Such a discretion, however, must be exercised having regard to the new provisions in sub-ss.(3AA) and (3AB). Each offence in this case was a “sexual offence” for the purposes of sub-s.(3AA) and there is no suggestion that the counts were not properly joined in the one presentment for the purposes of s.371 of the Crimes Act. It follows that a presumption arose under sub-s.(3AA) that all the counts in the presentment were triable together. That was a factor that the trial judge was required to take into account in exercising his discretion on the question of severance.
[18]at 626.
[19]at 628-629, 630, 631.

In R. v. KRA[20], this Court comprising the President, Brooking and Ormiston, JJ.A. said[21] that the statutory amendment reflected the “more pragmatic approach” in R. v. Christou[22], the burden of which was that “severance is a matter for the judge’s discretion and that, in exercising it, the judge should bear in mind that jury’s can be trusted to heed the judge’s directions”. Their Honours cited with approval[23] what Lord Taylor of Gosforth said in Christou[24] in relation to the exercise of discretion on the question of severance, namely:

"the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family; on the victims and their families; on press publicity; and importantly, whether directions which the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully. Experience shows ... that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately. Approaching the question of severance, as indicated above, judges will often consider it right to order separate trials. But I reject the argument that either generally or in respect of any class of case, the judge must so order”.

See also Callaway, J.A. in TJB[25].

[20][1999] V.S.C.A. 157.

[21]at [21].

[22][1997] A.C. 117.

[23]at [20].

[24]at 129.

[25]at 628-631.

Mr. Tehan attacked his Honour’s exercise of discretion on the severance application by submitting that his Honour failed sufficiently to take into account the following matters, with the result that his discretion miscarried.

(a)There was a large number of counts in the presentment and all but two of them related to the two brothers. Consequently, to lead evidence on the P counts of what the applicant did to them would be highly prejudicial to him. Such prejudice called for severance of the presentment which could have been easily and practically achieved.
(b)There was further prejudice to the applicant from the joinder of the counts because the offences contained sexual behaviour against young boys which would excite revulsion in the minds of the jury.
(c)The nature and extent of the offending in the case of the counts relating to M and S was relevantly different from that in relation to the P counts.

In my view, however, this contention is not sustainable. Some of the above points were dealt with during my analysis of Mr. Tehan’s principal submission. In any event, they were all put to his Honour by the applicant’s counsel in support of his claim that the presentment should be severed and his Honour rejected them. In my view, it is plain that his Honour took them into account in exercising his discretion and no error has been established on his part.

For these reasons, it is my view that ground 2 must fail.

Uncharged acts

The second ground of appeal argued by Mr. Tehan was ground 3. Under cover of that ground it was contended on behalf of the applicant that his Honour erred in allowing the prosecution to adduce from M and P evidence of uncharged acts allegedly committed by the applicant in respect of M and J respectively. The defence had available statements of the proposed evidence of the complainants and at the outset of the trial, the applicant’s counsel sought a ruling from his Honour that the Crown should not adduce that evidence. The application was rejected by the learned trial judge. Mr. Tehan’s principal argument was that, to the extent that this evidence had any probative value, it did not transcend its prejudicial effect and, therefore, should not have been admitted.

I turn first to the evidence of uncharged acts given by M. In his evidence-in-chief, he said that during a period of five months or so when the applicant visited the Hs’ home, he engaged in sexual conduct towards him in his bedroom (in addition to the conduct which was the subject of the charges) “roughly once per week” amounting “roughly” to 14 or 15 occasions. The uncharged acts consisted of oral sex, masturbation, anal and attempted anal sex. Immediately after that evidence was given, his Honour gave the jury a conventional propensity and separate consideration warning in relation to that evidence[26]. Later, when his Honour charged the jury, he gave them another such warning in respect of the evidence of uncharged acts. His Honour also, at the commencement of his charge, issued a separate consideration direction in respect of the whole of the evidence. It has not been suggested by Mr. Tehan that his Honour’s warnings were inadequate.
[26]in accordance with R. v. Best [1998] 4 V.R. 603 at 615; R. v. J (No.2) [1998] 3 V.R. 602 at 639-640 and R. v. Grech [1997] 2 V.R. 609 at 614.

Mr. Tehan’s principal submission was that evidence of M as to the applicant’s uncharged acts towards him had no or only little probative value which was, in any event, outweighed by its substantial prejudicial effect for the purposes of s.398A(2) of the Crimes Act. Consequently the Crown should not have been permitted to adduce that evidence. Mr. Tehan argued that the primary purpose for which this evidence was adduced was to establish that a sexual relationship or guilty passion existed between the applicant and M. But, he submitted, there was no need to lead evidence of uncharged acts in order to establish this because there was a significant amount of evidence of charged acts of a similar type which were allegedly committed by the applicant over a relatively short period which could have established such a relationship. In other words, evidence of charged acts could have been relied on by the prosecution in this case to found the argument that the applicant had a guilty passion towards M. Consequently, there was no need to introduce evidence of uncharged acts in order to seek to establish that fact. It added very little to the evidence of the charged acts other than prejudice against the applicant. A further reason advanced by Mr. Tehan as to why the evidence of uncharged acts had no or only little probative value was that the evidence related to acts that took place towards the end of the relevant period, most likely after the manse incident. Such acts, so late in the day, submitted Mr. Tehan, had very little probative value.

Mr. Tehan further argued that his Honour did not undertake the analysis of the evidence of the uncharged acts for the purpose of determining its probative value. Consequently, it was said, his Honour could not have carried out the relevant comparison for the purpose of s.398A(2) in order to determine whether it was “just” in all the circumstances to admit it.

It is clear enough that his Honour was required to consider what was the probative value of that evidence and whether, having regard to its prejudicial effect, it was in all the circumstances just to admit it. As Callaway, J.A. said in TJB[27], s.398A “prescribes a rule that must be satisfied before a particular class of evidence is admissible, not a discretion to exclude evidence that is admissible”. A little later, his Honour pointed out that the decision under the section required attention to be focussed on the circumstances relating to the probative value and those which relate to the prejudicial effect of the evidence.
[27]at 632.

In my view, the evidence of M of uncharged acts to which I have referred earlier, did have probative value in the sense that it was relevant to the existence of the applicant’s sexual passion for M and thereby placed the charged sexual acts of the applicant with him in their proper context. Furthermore, it went to explain why no complaints were made by M about the applicant’s behaviour towards him. In this case, there is no reason why the Crown should have been confined to evidence of charged acts for the purpose of establishing such a relationship as was contended for by Mr. Tehan. It obviously could not be assumed that the jury would necessarily accept all the evidence of the charged acts. Consequently, it was appropriate for the Crown to lead evidence of uncharged acts for the purpose of establishing the matters referred to. It will be recalled that the applicant denied engaging in any sexual conduct with any of the complainants and claimed that it was inherently unlikely that he would have done so bearing in mind that there was an ever present risk of being caught out by the parents had he engaged in it. The door to the bedroom was always open when he was with the boys and the parents were within earshot and only a short distance away in the loungeroom or the kitchen and it was not unknown for the father to come into the bedroom unannounced.

Mr. Tehan’s submission that the probative value of that evidence was diminished by the fact that the uncharged acts occurred late in the relevant period is, in my view, without foundation. The evidence of M makes it fairly clear that the uncharged acts occurred broadly during the same period during which the charged acts took place.

I now turn to deal briefly with Mr. Tehan’s submission that his Honour did not analyse the extent of the probative value of the evidence of the uncharged acts committed on M. In my view, having regard to what his Honour said in his ruling on the admissibility of that evidence and his recognition that a propensity and separate consideration warning was required in relation to it, it is clear that he was very much alive to the need to assess the probative value of that evidence for the purposes of s.398A(2) and that he did just that. His Honour said in the course of his ruling that he had read TJB and Best where the requirements of s.398A(2) are discussed by Callaway, J.A., particularly in Best, including the requirement that the probative value of the propensity evidence is to be balanced against its prejudicial effect. In his ruling, his Honour concluded that the evidence was relevant to the question of the relationship between the applicant and M and that it placed in context the allegations as to the charged offences. In my view, it seems clear enough that his Honour recognised that in order for the evidence to be admissible, it had to be of such probative value as to make it “just” for it to be admitted notwithstanding its prejudicial effect.

In any event, even if his Honour did not consider in as much depth as he should have the extent of the probative value of the evidence of the uncharged acts (and there is no basis for so concluding), in my view, it was “just” in all the circumstances to have that evidence admitted within the meaning of s.398A(2). For reasons I have given earlier, that evidence did have probative value and any prejudicial effect that it may have had, was contained by the propensity and separate consideration warnings given by his Honour on the two occasions which I have identified earlier, the adequacy of which was not challenged by Mr. Tehan.

In the circumstances, therefore, I am of the opinion that his Honour did not err in ruling that the evidence of M as to the applicant’s uncharged acts was admissible.

I am also of the view that the evidence of P as to what the applicant did to J in the manse, which was not the subject of objection, was admissible. That evidence was part of the description of the one set of events which involved the applicant’s relevant conduct.

Consequently, it is my view that this ground of appeal must fail.

Change of case by Crown

The next ground of appeal that was argued by Mr. Tehan was ground 5 which was concerned with the claim that his Honour wrongly permitted the Crown to change the basis of its case after the jury had retired to consider their verdict and that this resulted in a miscarriage of justice. In essence, it was submitted that at all relevant times a principal basis of the prosecution case was that the relevant offending acts were committed during identified episodes which occurred in a sequential order within the period specified in the presentment. The Crown had, so it was claimed, undertaken the burden of establishing that each of the offences with which the applicant was charged, was committed during an identified episode, but by his re-direction, the trial judge effectively permitted the Crown to press the case that the applicant could be convicted whenever the offending conduct took place during the period specified in the presentment. It was submitted by Mr. Tehan that such a case was fundamentally different from the one which the Crown sought to prove at the trial. As I understood him, Mr. Tehan contended that counts which were affected by this re-direction were counts 3, 8 and 9. I propose to analyse Mr. Tehan’s submissions on the basis that the changes affected only those counts. Lest I have misunderstood his submissions and he has contended that the changes affected all the counts in the presentment, my conclusions in relation to the three counts which I have mentioned, apply equally to all the other counts.

It is necessary to explain briefly, the context in which this issue arose. As I have mentioned at the outset, counts 1 to 12 allege sexual misconduct by the applicant with M in his Daylesford home during the period which is specified in the presentment as being between 2 March and 20 August 1981. Nearly all the counts in the presentment describe the alleged offences as having taken place between those dates “on an occasion other than that referred to [in other counts which alleged similar offences]” (emphasis added). It is self-evident that the word “occasion” as used in the presentment seeks to distinguish between the offence that was the subject of one count and similar offences which are the subject of another count or other counts. The particulars of each count contain a brief summary of the act which is said to constitute the offence and, notwithstanding that they state that the commencement of the relevant period is 1 March 1981 (which I assume is a typographical error and the intended date was 2 March 1981) the period in the particulars during which it is said that the offences took place, is the same as that stated in the presentment. Thus, neither the presentment nor the particulars alleged in respect of any count that the offending conduct occurred on any particular day (or during any particular episode). But the particulars go on to refer to, and thereby incorporate by reference, a paragraph of the statement of the relevant complainant (which was to be the basis of his evidence). The statement describes the sexual acts performed by the applicant with the complainant in the context of sequential episodes during each of which, it is said, a number of such acts were committed. Thus, in respect of each alleged offence, the witness describes in his statement the circumstances which took place and, importantly for present purposes, the episode during which it occurred (thereby distinguishing the charged act from any uncharged acts of a similar nature about which M, for example, gave evidence). In order to illustrate these matters, I set out by way of example the terms of the presentment relating to count 9 and the particulars provided in relation to it.

“Count 9: AND the Director of Public Prosecutions further presents that [GAE] at Daylesford in the said State on a date between the 2nd March 1981 and 20th August 1981 on an occasion other than that referred to in Count 4 took part in an act of sexual penetration with [M] a person who was above the age of ten years but under the age of sixteen years and to whom [GAE] was not married in that he introduced his penis into the anus of [M].”

The particulars in relation to that count were in the following terms:
“At Daylesford between 1.3.1981 [sic] and 20.8.81, [GAE] inserted his penis into the anus of [M] (11 yrs old).
Ref.. [M] statement 1. Page 8. Para 1.”

The relevant wording of the part of M’s statement was in the following terms:
“Before he did that, he tried to put his penis into my anus. He did this by lifting my left leg slightly up and then pushed his penis into my anus. He could only get the tip of his penis in my anus. This caused great pain. He continued trying to push his penis further in but he would stop because I think he knew it wouldn’t go in, he was too big.”

In a previous part of the statement it is made clear that this conduct took place during the third episode. According to M’s statement the sexual acts which are the subject of counts 3 to 7, were committed during the second episode in early March 1981. The acts, the subject of counts 8 to 12, were perpetrated during the third episode which occurred approximately two weeks later and before the manse counts. The latter offences took place during the fourth episode.

It is convenient to mention at this point that during the trial and, in particular, the evidence of M, the word “occasion” was used to denote the episode during which a number of sexual acts, the subject of various counts, occurred. Bearing in mind that “occasion” was also used in the presentment albeit to convey a different meaning, it is not surprising that, as will be seen later, the jury was confused as to what meaning they should attribute to that word. In order to avoid a similar confusion, I propose to use the word “episode” to denote the incident during which it is alleged the applicant committed a number of sexual offences against the particular complainant.

At the trial, M’s evidence-in-chief broadly followed his statement except that it did not support the allegations in count 4 (the first alleged act of anal penetration by the applicant of M), count 5 (masturbation) and count 7 (oral rape), in respect of which the applicant was acquitted by direction as I will explain later. Because of the importance for present purposes of counts 3, 8 and 9, it is convenient to mention here that the only counts which alleged that the applicant committed anal penetration of M were counts 4 and 9. Count 12 was concerned with M being forced by the applicant to commit anal penetration of him and in respect of that offence, the jury returned a verdict of not guilty. Counts 3 and 8 were the only counts on the presentment that alleged simulated intercourse with M. It will be recalled that M also gave evidence that the applicant performed on him uncharged sexual acts, approximately once per week for a period of about five months, a total of “roughly” 14 or 15 times including masturbation, oral, anal and attempted anal sex. During the cross-examination of M, it was demonstrated that he had a faulty recollection as to the timing of the offences. He conceded that he was not certain of the order in which some of the sexual acts took place. For example, he agreed that he did not remember during which of the episodes the act of anal penetration took place; he said that it could have been during the second, third, fourth or fifth episode. The witness said that he had a recollection of most of what happened but did not know the order in which it occurred. He was similarly confused about which of the episodes the applicant sought to engage with him in simulated sexual intercourse. He said that it could have been “the third, fourth or fifth” episode. In one sense, given that no complaint was made in relation to the applicant’s alleged sexual misconduct towards the complainants until 1997, it is not surprising that the witness could not recall the timing of the events with sufficient precision to identify confidently during which episode the act in question took place. I mention for completeness that S also gave his evidence of the applicant’s sexual conduct towards him in the context of identifiable episodes, but no relevant complaint about his evidence was made by Mr. Tehan under cover of this ground.

Before the applicant gave evidence, his Honour heard what was in effect a no-case submission made by his counsel in respect of certain counts. In the course of that application the prosecutor identified the evidence on which the Crown relied to establish all the counts other than counts 4, 5 and 7, in respect of which he agreed there was no evidence. The applicant’s counsel then successfully submitted to his Honour that there was also no, or no sufficient, evidence for count 21 to go to the jury. In the result, the judge directed the jury to acquit the applicant in respect of counts 4, 5, 7 and 21 and later, a similar direction was given to the jury in respect of count 24. Thus, by the time the applicant gave evidence there was only one allegation that he had committed an act of anal penetration of M (count 9) and two allegations of simulated intercourse with M (counts 3 and 8).

In the final addresses of counsel and in the judge’s charge, little attention was paid to when the offending conduct, particularly that which was the subject of counts 3, 8 and 9, took place. This may be unsurprising given the large number of alleged acts involved and the other issues that were required to be dealt with in the addresses and the charge. The prosecutor’s final address was relatively short and the bulk of it was taken up with examining issues such as the credibility of the witnesses and the likelihood of the offending acts having taken place. Towards the end of his address, the prosecutor summarised the (remaining) offences with which the applicant was charged and the evidence that related to them and in that context, told the jury that the subject of count 3 occurred on “the second occasion that [M] gave evidence about” and that counts 8 and 9 related to “the third occasion that [M] referred as remembering particular sexual acts”. Thus, the Crown was still putting the case that the relevant acts occurred during the corresponding episodes. A considerable part of the final address of counsel for the applicant was spent dealing with issues of onus and standard of proof, the credit of witnesses and the inherent improbability of the applicant committing the alleged acts in the bedroom of the two brothers. But he did not, in the course of that address, seek to contend that the Crown has not made out its case because it had failed to establish that the counts in question occurred during the period nominated by the complainant. Moreover, counsel did not seek to rely on M’s admissions in cross-examination that he could not recall in which episode the particular offending occurred.

In his charge, the learned trial judge explained to the jury, inter alia, the elements of each (remaining) offence which was alleged against the applicant and then, in effect, read to them the evidence of the charged acts that related to each count but he did not do so in terms of episodes during which each of the charged acts was supposed to have taken place. As I have mentioned previously, his Honour also dealt with the evidence of M as to uncharged acts and again, he gave the jury a propensity and separate consideration warning in relation to that evidence. His Honour also reminded them of the admission by M during cross-examination that he could not be sure during which episode the anal intercourse took place. He was certain that the applicant committed the acts about which he had given evidence but he could not be “exact [about] what things … took place on what occasion”. No issue is taken with this direction.

The jury retired to consider their verdict not long before midday on 22 March 1999. At approximately mid-morning of the following day the jury asked that there be read to them the evidence which related to counts 3, 8, 9 11, 24, 27 and 28. As a consequence, it was discovered that there was no evidence to support count 24 and a verdict of acquittal was directed in relation to it. Later, they asked that the applicant’s evidence of M and S as to their overnight stay at the manse be read to them. In response to this request both counsel furnished to his Honour the passages in the transcript which they agreed constituted the evidence that was sought by the jury and accordingly, his Honour read those passages to them later that day. Again, that evidence related specifically to each count and no suggestion was made that the Crown had to establish as part of its case that the alleged act occurred during any particular episode. Not long thereafter, shortly before they were due to conclude their deliberations for that day, they informed his Honour that they wished to ask another question which they put to him in the following terms:

“Your Honour, could you please explain/clarify the meaning of ‘occasion’ in the particulars of offence. For instance, is it essential that we satisfy ourselves as to what particular occasion, that is, first, second , third, et cetera, that the alleged acts occurred?”

The jury were then effectively discharged for that day. It is common ground that the reference in the question to “particulars of offence” was a reference to the presentment (a copy of which had been provided to the jury) and it seems clear enough that the first part of the question, reflected the jury’s confusion as to the meaning they should attribute to the word “occasion”. That there was some confusion about it was unsurprising given, as I have mentioned earlier, that it was given one meaning in the presentment and another at the trial, particularly during the cross-examination of M.

After hearing submissions from counsel as to what should be the appropriate response to the jury’s question, his Honour accepted the prosecutor’s submission on that issue (which differed from that which had been proposed by him earlier) and, over the objection of the applicant’s counsel who contended that the re-direction proposed by the prosecutor amounted to a fundamental change in the Crown case and would lead to problems including ambiguity of verdict, answered the question at 11.35 a.m. on 24 March 1999, in these terms:

“I would seek to answer that question in this way. During the evidence of [M] and [S], each – particularly [M] – used the word “occasion” or “occasions” in the context of whether something took place on the first, second, third, et cetera, occasion. That word “occasion” was used in the sense of “episode”. Each witness gave evidence of sexual acts taking place during a particular episode of sexual activity.
The use of the word “occasion” in the presentment has a meaning different to that of “episode”. The word “occasion”, as used in the presentment, is so used to distinguish that alleged act from another act, whether that other act was in the same episode or not.
In respect of Count 3, as I understand it, the Crown case is that that count relates to the first time such an act of rubbing his, the accused man’s penis, on or near the bottom of [M] occurred, whatever episode it took place in, and as to Count 8, I understand that the Crown case is that Count 8 refers to the second time such type of act, that is the rubbing by the accused man of his penis on or near the bottom of [M], Count 8 refers to the second time such type of act occurred, no matter which episode it occurred in.
Count 9 refers to the first time that the accused man committed, as alleged, anal sex upon or with [M], no matter which episode, whether the third, fourth or fifth episode of sexual activity that alleged act occurred in.
If you, the jury, is satisfied beyond reasonable doubt that the particular act took place between the specified dates, then the jury is entitled to find the accused man guilty of that particular count you are then considering.”

The jury, through its foreman, then asked his Honour that there be read out to them the evidence of M in relation to the powder rub incident at the manse. Again, counsel agreed as to which parts of the transcript should be read to the jury in satisfaction of their request and his Honour accordingly read out that evidence to the jury at approximately 12.11 p.m. on that day. The jury retired to their room at 12.23 p.m. and at 1.08 p.m. returned a verdict of guilty in relation to counts 1-3, 6, 8, 9, 10, 11, 15, 17-20, 22, 23, 25-27 and not guilty on counts 12-14, 16 and 28. (I have mentioned the times when the jury asked their question, and delivered their verdicts because, as I will explain later, Mr. Tehan sought to rely on those times as supporting his contention that the jury probably convicted the applicant on the evidence of uncharged acts.)

Mr. Tehan submitted that his Honour’s answer to the jury constituted a re-direction by him which, in the circumstances, amounted to a miscarriage of justice. He made the following points in support of that submission.

(a)Through the re-direction, the Crown changed the basis of its case almost at the end of the trial. Cases such as King v. R[28] and R. v. GAS[29] show that there is a fundamental rule that the Crown should not be permitted to make a material change to its case particularly at a late stage. In this case the changes were material and should not have been allowed at the late stage of the trial.

In R. v. J (No.2)[42], this Court considered the question whether in the case of a sexual offence, the prosecution can lead evidence of recent complaint by the victim without calling the person to whom the complaint was made. After examining the principles and the authorities relevant to this question, the President and Charles, J.A. (with whom Callaway, J.A. agreed) concluded[43] that since evidence that no complaint was made by the complainant about the alleged sexual offence was admissible upon the issue of credibility, so also the evidence of an early complaint by the complainant can be admitted as going to the complainant’s credit. Their Honours went on to say this[44]:

“The complaint does not amount to corroboration of the complainant’s evidence and is not evidence of the facts stated in the complaint. But it is the fact that the victim has not complained which is said to be destructive of the evidence given by the victim and usually part of the evidence of any recent complaint necessary to rebut that ‘presumption’ will be given by the complainant. In our view it cannot be correct that the complainant should be prevented from giving that evidence because, for example, the person to whom the complaint was made has died, cannot be found, has forgotten what was said, is a hostile witness, did not hear the complaint when made, or now denies that the victim made the alleged complaint. The fact that the victim’s evidence as to complaint is unsupported will, in the absence of an acceptable explanation, clearly go to the weight of the evidence of complaint; but in our view the evidence of either the complainant or the recipient is admissible although, as we have said, ordinarily that evidence would be corroborated by the other party to the communication also giving evidence of that fact.”

In coming to this conclusion, their Honours rejected[45] the contrary view that was expressed by the Court of Appeal in New Zealand in R. v. Kincaid[46], namely, that evidence by the victim of having made a recent complaint is not admissible unless there is independent confirmation in what she said. In particular, their Honours disagreed with the conclusion of Casey, J. in that case (who gave the judgment of the Court) who said[47] that, without independent confirmation of the complaint, the victim’s own evidence-in-chief that a complaint was made by her “takes the jury nowhere in deciding whether she is worthy of belief”.

[42]at 614-624.

[43]at 619.

[44]at 619-620.

[45]at 619.

[46][1991] 2 N.Z.L.R. 1.

[47]at 9.

In White, the victim complained separately to five persons not long after she was allegedly raped by the accused. None of those persons was called to give evidence and the trial judge did not direct the jury as to the use of it other than to tell them that it did not corroborate her evidence. The Privy Council held that the complainant’s evidence of the five complaints, each being to the effect that she told the person “what happened”, was evidence of previous self-consistent statements and was therefore not admissible to show her consistency or to negative consent (neither of which was relied on by the Crown as a ground for admitting the evidence[48]) and could not be taken into account in assessing her credibility because the persons to whom the complaints had been made had not been called to give evidence. In that context, their Lordships cited with apparent approval[49] the passage from the judgment of Casey, J. in R. v. Kincaid to which I have referred earlier and which found no favour with this Court in R. v. J (No.2).
[48]see 213, 217.
[49]at 216.

White is obviously not binding on this Court and in my respectful view, the reasoning in R. v. J (No.2) is to be preferred. Even if we were minded to overturn R. v. J. (No.2) (which we are not), we could not do so given the composition of the Court. Moreover, in disposing of the application by the unsuccessful applicant in R. v. J (No.2) for special leave to appeal to the High Court, Brennan, C.J. said:

“The question which the applicant seeks to raise in this application for special leave to appeal is whether the evidence of recent complaint by a complainant in the trial of an accused charged with sexual offences is admissible if the person to whom she made the complaint is not called. That evidence was admissible to forestall any interference that might have been drawn adversely to the credit of the complainant if she had not complained. The appeal would not succeed and therefore special leave is refused.”

It follows, therefore, that Mr. Tehan’s submission that the evidence of what P told his mother was inadmissible, should be rejected.

For completeness, I mention that Mr. Tehan argued that in any event, little or no weight should have been given to the complaint because the mother was not called and his Honour should have so charged the jury, but failed to do so. But his Honour was not asked to give such a direction to the jury and no objection was taken to his charge on the basis that no such direction was given. Moreover, it was a matter for the jury to decide whether to accept the evidence of P as to his complaint and if so, what weight they should give it.

For these reasons, this ground must fail.

Unauthorised communication with the jury

The applicant’s fourth ground of appeal which was argued next, sought to impugn the decision of the trial judge not to discharge the jury after they had an improper communication with his Honour’s tipstaff in the course of which he incorrectly told them that they could properly bring in a majority verdict.

The circumstances giving rise to this ground were as follows. At 11.15 a.m. on 22 March 1999 the jury retired to consider their verdict. At approximately 3 p.m. on that day, his Honour’s tipstaff was asked by the foreman of the jury whether “they had to have a majority verdict. They couldn’t have, for instance ... six find him guilty and six find him not guilty”. Instead of declining to discuss the matter and referring the foreman’s query directly to his Honour to be dealt with in open court, the tipstaff endeavoured to answer the question, incorrectly as it turned out, by stating that it was his understanding that the relevant direction given by his Honour was that only a majority verdict was required. In fact, his Honour had told the jury that unless he directed them otherwise (and he might not do so), they must proceed in their deliberations on the basis that their verdict had to be unanimous. Upon being made aware of the unauthorised communication approximately 20 to 30 minutes after it occurred, his Honour immediately reconvened the court in the absence of the jury and disclosed the circumstances of the communication to the parties. At that time, the tipstaff gave unsworn evidence as to the extent and substance of his discussion with the foreman and the parties were invited to make submissions in respect of it.

Counsel for the applicant sought a discharge of the jury on the basis that they had been deliberating under a misunderstanding or false premise for approximately 30 to 40 minutes. His Honour refused the application. He formed the view that in the circumstances of the case, the irregularity could be corrected by an immediate direction from him. He thereupon recalled the jury and told them that any verdict that they may return had to be unanimous. He also told them of the impropriety of the tipstaff’s communication. On the afternoon of the second day of the jury’s deliberations, the applicant’s counsel renewed his application for the discharge of the jury on the basis of his concern that the time that the jury were taking in their deliberations might indicate some oppression of a minority of the jurors by the majority. The application was again rejected by his Honour.

It was submitted by Mr. Tehan that any unauthorised communication between the jury and an officer of the Court is to be regarded as a serious infringement of the right of an accused person to a fair trial. In the circumstances of this case, so it was said, there was an unauthorised communication on a matter of substance which could not be cured by a direction. At one stage, he conceded that if the irregularity was such that it could be cured, his Honour’s direction achieved that end. Mr. Tehan contended, however, that the irregularity was material; it went to the root of the proceeding and was capable of affecting its outcome. Hence, it was said to be incapable of correction by his Honour. Mr. Tehan also argued that the asking of the question by the foreman on behalf of the jury showed that some of them differed from the others on matters going to the guilt or otherwise of the applicant. The direction by his Honour, so it was submitted, would have inhibited them (and did inhibit them) from pursuing their views. Given that the verdict ended up being unanimous, the direction must have forced them to join in a compromised verdict. Thus, it was said, the irregularity could not have been remedied in the circumstances of the case.

The entitlement to a fair trial includes the right to have all matters pertaining to the trial considered in the presence of the accused and in open court and that principle underlies the rule which prohibits communication between the staff of the trial judge and the jury in relation to matters pertaining to the trial during its course, particularly when the jury has retired to consider its verdict[50]. The same principle precludes private communications between the judge and the jury[51]. In a slightly different, but nevertheless relevant, context, Gleeson, C.J. with whom James and Ireland, JJ. agreed, said in Minarowska & Koziol v. R.[52] that there was no absolute rule that any form of communication between a juror and a person associated with the prosecution will necessarily abort the trial. Each case had to be considered on its merits. In my view, the same consideration applies to the present case.
[50]Jackson & Le Gros v. R. [1995] 1 Qd.R. 547 at 550.
[51]Ramstead v. R. [1999] 2 A.C. 92 at 97.
[52](1995) 83 A.Crim.R. 78 at 83.

Where there is an unauthorised communication with the jury during the trial, the question whether their verdict will be allowed to stand notwithstanding that irregularity, will depend on whether the communication was such as to give rise to a reasonable suspicion or concern about the fairness of the trial[53]. Such concern will more readily arise if there is a reasonable prospect that the communication influenced the jury in some relevant way to arrive at the verdict of guilty, particularly if the irregularity is only discovered after the verdict[54].
[53]R. v. Chaouk [1986] V.R. 707 at 712 per Kaye, J.
[54]Chaouk at 715 per Fullagar, J.; Jackson & Le Gros v. R. at 551.

There are, of course, other reasons why an irregular communication with the jury might be said to give rise to an apprehension that the accused has been denied a fair trial, such as where a court officer effectively interferes with the jury’s consideration of the issues, as occurred in R. v. Davis[55] which is discussed briefly in R. v. Lamb[56]. There is no suggestion, however, that there was such an interference with the jury’s function in the present case.
[55](1960) 44 Cr.App.R. 135.
[56](1974) 59 Cr.App.R. 196 at 199-200.

In R. v. Lamb, on which Mr. Tehan relied to show that the irregularity was material because the communication took place in secret, the clerk of the court, on the instruction of the judge, went into the jury room and informed the jury that they must continue to reach a unanimous verdict. He did this after the jury sent a message to the judge through a bailiff that they could not reach a unanimous verdict. They did this after their retirement and before the two hours had elapsed (after which a majority verdict might have been possible). It was held that what the clerk of court did amounted to a material procedural irregularity, but that in the circumstances, including the fact that when the events were made known to counsel before the jury finally returned to deliver their verdict and no application was made for the jury to be discharged, no miscarriage of justice had occurred and the verdict was allowed to stand. As Callaway, J.A. noted during argument, Lamb did not decide that the irregularity, albeit a material one, went to the root of the proceeding.

In cases such as R. v. Willmont[57]; Jackson & Le Gros v. R. and R. v. Briffa & Portillo[58] there was a reasonable apprehension that the unauthorised communication may have relevantly influenced the jury in reaching the verdict of guilty. In these cases, the communication was discovered after the verdict was delivered. On the other hand, an example of a case where there was no reasonable possibility of the jury being influenced and convicting the accused by the communication from the court officer, is Arnold v. R[59], where the only communication consisted of the confirmation that the verdict of the jury must be unanimous, which was the law in Western Australia.
[57](1914) 10 Cr.App.R. 173.
[58]Unreported, Court of Appeal, Supreme Court of Victoria, 21 April 1997.
[59](1946) 48 W.A.L.R. 83.

Here, there was no realistic prospect of the jury being relevantly influenced by the communication that took place between its foreman and the tipstaff. It is not suggested that he told the jury anything about the merits of the case. Nor did he exert pressure on them to expedite their deliberations. Further, the matter was dealt with in open court very shortly after the irregularity appeared and the applicant’s counsel was heard on the issue.

In any event, the confusion which may have been present in the minds of some of the jurors on the question of the need for unanimity during the period before their foreman spoke with the tipstaff, was not of his doing. The misapprehension which the tipstaff generated in their minds by telling them that their verdict need not be unanimous, lasted for only half an hour or so before his Honour corrected the situation. There is nothing that occurred during that period which could be said to have adversely affected the interests of the applicant. Even if one assumes that some jurors held a different view about what the verdict should be from that of the majority, there is no basis for contending, as Mr. Tehan did, that his Honour’s second direction as to the need for unanimity somehow would have overborne or did overbear the minority and cause them to join in a compromise verdict. What his Honour told the jury on that occasion merely confirmed his first direction to them on this point; they were obliged at all relevant times to reach a unanimous verdict, which they ultimately did.

In these circumstances, in my view, there is no basis in the present case for contending that the tipstaff’s irregular communication with the jury has given rise to a reasonable concern that the applicant did not, by reason of that communication, receive a fair trial and consequently, the irregularity was curable. In the circumstances it was cured and his Honour made no error in not discharging the jury because of that unauthorised communication.

Looked at in another way, as a matter of common sense, the irregularity did not materially affect the conduct of the trial by his Honour. The subject matter of the communication did not relate to any relevant matter that the jury had to consider for the purpose of reaching their verdict. The end result was that there was transparency. Nothing was withheld from the applicant or his advisers prior to the jury returning the verdict. More particularly, the irregularity was disclosed and vented very shortly after it occurred and the applicant was heard in open court. There was only, as a best case scenario for the applicant, 40 minutes or so between the unauthorised communication and the correction of it by his Honour. In those circumstances, no miscarriage of justice occurred.

For these reasons, it is my view that this ground fails.

Verdicts unsafe and unsatisfactory

The last ground that was argued by Mr. Tehan (ground 1) involved the claim that the verdicts of guilty relating to a number of the counts were unsafe and unsatisfactory in the sense that on the assessment of the evidence in relation to the relevant counts, the Court should conclude that its nature and quality was such that the jury, even if properly instructed, were bound to entertain a reasonable doubt as to the guilt of the applicant[60]. Mr. Tehan first submitted that the verdicts of guilty in respect of the manse counts were unsafe and unsatisfactory. He contended that each of M and S gave a materially different account of the one event or set of events, namely, as to what took place between the applicant and the boys at the manse. Consequently, it was said, the jury could not have safely convicted the applicant upon those counts. It is true that, as Mr. Tehan enumerated, the evidence given by each of the two boys as to the details of what the applicant did with them and of the surrounding circumstances, differed markedly in many respects. For instance, they differed as to whether they were given a bubble bath or shower; as to who dried them; where the applicant was when they were bathing; whether they slept together in a double bed or separate bedrooms and whether the applicant was naked when he engaged in the offending conduct. The jury acquitted the applicant in relation to two of the three manse counts relating to M, namely, counts 13 and 14, but convicted him of count 15 (involving the powder rub). In relation to the manse counts that concerned S (counts 16-20) the applicant was acquitted only on count 16.
[60]R. v. NRC [1999] V.S.C.A. 184 at [38]; M v. R. (1994) 181 C.L.R. 487 at 493.

For the reasons I have given earlier, it is my view that the jury in this case took their responsibilities seriously and properly performed the role of judges of the facts. It is fairly apparent from their verdicts that they preferred the version of events at the manse that was given by S over that given by M. In my view, such a conclusion was fairly open to them. Their rejection in part of M’s evidence in preference to that of S does not make their verdicts unsafe and unsatisfactory.

Mr. Tehan also contended that the convictions of the applicant upon the Daylesford counts were also unsafe and unsatisfactory having regard to what he called the extraordinary nature of the allegations pertaining to those counts. The essential argument was that it was inherently improbable that the applicant would have engaged in such conduct given that the door of the boys’ bedroom was always open, the parents were a short distance away and within earshot and that there was always the risk of the father coming into the bedroom unannounced as had in fact occurred. Mr. Tehan also pointed to the fact that there was little supporting evidence for M and S from their brother D and that their mother was not called. At one stage, Mr. Tehan contended that the light was usually on in the bedroom when the applicant was with the boys, but in my view, the overwhelming evidence was to the contrary.

The contention that it was inherently improbable that the applicant would have committed the alleged offences given the obvious risks involved may be, at best, a powerful argument, but it is no more than that and in any event, it is by no means so overwhelming that it could not be reasonably rejected in favour of the view that the evidence showed beyond reasonable doubt that notwithstanding the apparent risks, the applicant was prepared to engage in the offending conduct. In my view, it was fairly open to the jury to accept the evidence of M and S as to the applicant’s conduct in their bedroom. The fact that the complainants’ mother was not called was, at best, a comment that was arguably available to the defence. As to D, he was not always in the bedroom when the relevant events occurred or if he was, his bed was in such a position that he could not properly see the applicant if he was on one of the bunks.

Mr. Tehan also argued, albeit faintly, that the jury’s verdicts in relation to the P counts were unsafe and unsatisfactory having regard to, inter alia, the fact that J was not called, that there were differences between P’s evidence and his statement and P’s lack of real complaints to his father on the following day. That J was not called was explicable by the fact that he lived in Japan and the other matters put forward by Mr. Tehan in support of this aspect of his case were prototype jury matters and it was for them to decide whether to accept those arguments or the evidence of P.

Thus, notwithstanding the points made by Mr. Tehan in support of this ground, in my view, the jury were not bound to entertain a reasonable doubt as to the guilt of the applicant upon the relevant counts.

Conclusion

For these reasons, it is my view, that this application should be refused.

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[2000] VSCA 18

25 February 2000