R v Hopper

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 198 of 2004

THE QUEEN
	v.
GAVIN MAXWELL HOPPER

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JUDGES:	VINCENT and NETTLE, JJ.A. and OSBORN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 May and 1 June 2005
DATE OF JUDGMENT:	31 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 214

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Criminal Law – Conviction – Indecent assault of a female school pupil – Committing an act of gross indecency with a person under the age of 16 years – Admissibility of subsequent sexual activity and relationship evidence – Relevance of uncharged acts – Relevance of whole sexual history – Admissibility of various parts of record of interview – Whether applicant’s trial miscarried in consequence of prosecutor’s use of unproven documents in cross-examination – Issue of delay – Corroboration – Issue of identification – Adequacy of Longman warnings given – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. Mr A.E.A. Macnab	Browne & Co.

VINCENT, J.A.:
NETTLE, J.A.:
OSBORN, A.J.A.:

Introduction

On 16 July 2004 the applicant was arraigned before the County Court at Melbourne on three counts of indecently assaulting a young woman (to whom we will refer as F) contrary to s.44(1) of the Crimes Act 1958 and eight counts of committing an act of gross indecency with a person under the age of 16 years (namely F) contrary to s.50(1)(a) of the Crimes Act 1958. He pleaded not guilty to all counts and to the alleged aggravating circumstance that at the time of commission of each of the offences of gross indecency the complainant was under his care, supervision or authority.

After a trial lasting almost two weeks, on 2 August 2004 the applicant was found guilty and convicted of Counts 1, 2, 3, 6, 7, 8, 9, 10 and 11 and not guilty of Counts 4 and 5. The aggravating circumstance was found proved in respect of Counts 6 to 11.

Following a plea in mitigation, the judge sentenced the applicant to on Count 1 (indecent assault) to 12 months' imprisonment, on each of Counts 2 and 3 (indecent assault) to 2 years and 6 months' imprisonment, on each of Counts 6, 8, 10 (gross indecency) to 2 years' imprisonment, on each of Counts 7, and 9 and 11 (gross indecency) to 12 months' imprisonment. The judge ordered that 4 months of each of the sentences imposed on Counts 6 and 7, 8, 9, 10 and 11 be served cumulatively on the sentence imposed on Count 2 and on each other, producing a total effective sentence of 3 years and 6 months, and that the applicant serve not less than 2 years and 3 months' imprisonment before being eligible for parole.

The applicant now applies for leave to appeal against conviction.

The complainant’s evidence

F was born on 9 March 1971. She attended Wesley College, Prahran Campus from 1983 (Year 7) to 1988 (Year 12). The applicant was born on 17 April 1956 and was a physical education teacher at the school from 1985 to 1988. F gave evidence that she first met the applicant during Year 9 in a tennis class taken by him. She said that he singled her out and appointed himself as her doubles partner. She described him as being “particularly flirty” and “overly friendly”. She said that at one stage he had put his arms around her on the pretext of showing her how to use her racquet. She felt there was no need for it. She deposed that the intensity of the way the applicant looked at her made her feel very uncomfortable and that she felt threatened by his behaviour. He looked different to other teachers: he wore shorts, tank tops and small shoes and had longer hair and a moustache. He was “king of the kids".

According to F, she next encountered the applicant at another physical education class. She said that she tried to convert her feelings from being threatened into curiosity. At his invitation, she began to visit him in his office. That occurred at various times including morning breaks and lunchtimes. Her peers noticed the frequency of her visits and teased her about it. But she said that the applicant encouraged her to keep coming. There was no sexual activity at that stage but she said that she felt there was sexual innuendo in the way he communicated with her and that she developed “a pretty big crush” on him.

F said that after some time the applicant suggested that she come to school early to exercise with him and he offered to drive her. She accepted and he started driving her to and from school. At the time she was living in Kew with her mother. Her parents were divorced. Her father lived at Albert Park. Her mother was aware that the applicant was driving her to school but not of the frequency with which it was occurring.

(i) Counts 1-3 Indecent assault

In her evidence in chief F said that she remembered the occasion of the first sexual contact with the applicant because it had been very hot and she had been to the beach with a friend, K. She was quite sunburnt and her friend suffered from sunstroke.

Around that time she had talked to the applicant about an imminent maths test and he had offered to help her with preparation for it and arranged to pick her up and take her to his home for that purpose. He picked her up from her father’s home at Albert Park and took her to his home at Doncaster East. He drove a white Mazda RX7. His wife was not home. They went into the lounge room. He sat on a couch and she went over to him with her maths book. He started commenting on her tan and offered to apply lotion to her burnt skin. She said that she felt awkward and nervous but agreed. He told her to lie on her stomach and raise her shirt. She was wearing a big loose shirt which belonged to her brother and she was not wearing a bra. She raised the shirt to just under her breasts. The applicant knelt beside her and rubbed lotion onto her back and then got her to turn over. He rubbed lotion onto her stomach lightly brushing the bottom of her breasts. She sat up abruptly. Their faces were very close. He asked if she was in the mood for maths. She replied that she did not know. She leaned toward him and they kissed. He placed his tongue in her mouth. He then lay her down on a beanbag, got on top of her, kept kissing her and touching her all over, including her breasts. She said, “… initially it started with the less invasive, you know, touching the skin, then breasts, then vagina. And after he had inserted his fingers into my vagina, then it was all of it, you know, over the next hour or so, including kissing”. Those were the acts which were alleged to comprise Count 1 (touching her breasts) and Count 2 (penetrating her vagina with his fingers).

F said that after they had been kissing and touching a while they went into the kitchen for a snack and a drink. She ended up sitting on the edge of a table with her legs either side of the applicant, and he seated on a chair in front of her. He kissed and touched her, placing his fingers into her vagina. Those were the acts alleged to constitute Count 3 (penetrating her vagina with his fingers).

She could not recall how long she spent at the applicant’s house. But she recalled that he drove her part way home. She said she was having trouble dealing with the situation and so she got out of the car and caught a tram back to her father’s home.

In cross-examination she was asked whether she had had an expectation that there would be physical contact between the two of them before she had gone to the applicant’s home. She answered that the interaction leading up to the event led her to believe that it would be happening. She said it was not an expectation, it was more hope and anticipation. She went to his home to do maths with him but she was also interested in him. She said, “I was incredibly young. I just had a crush.” She said that she knew that he was married at the time but that it did not occur to her to ask him questions about the whereabouts of his wife. She was just following his lead.

(ii) Counts 4 & 5 - gross indecency

The events comprising Counts 4 and 5 were alleged to have occurred on a subsequent occasion, some days after the applicant and his wife had attended the F’s end-of-year piano concert.

In her evidence in chief F said that at one stage her mother had become uncomfortable about the attention which the applicant was showing towards F and had invited the applicant and his wife to the concert; in effect to assess them. At the concert, the F’s mother spoke to the applicant and his wife and F said that put her mother’s mind at rest. She permitted the applicant and his wife to take F to the Chevron Night Club. They met up there with G, a Wesley student whom the applicant was coaching in tennis. F said that the applicant asked her to go out with G to deflect suspicion about their relationship. But she did not co-operate and instead spent the evening talking to other people at the night club. She said that the applicant was furious with her and she became frightened of his anger and felt that she “had to make it up to him”. The opportunity arose a couple of days after the concert. The applicant picked her up from her home and they drove to Yarra Boulevard where they parked. She stroked his penis with her hand (Count 4) and sucked and touched his nipples (Count 5). They proceeded to have sexual intercourse.

(iii) Counts 6 & 7:

The events comprising Counts 6 and 7 were alleged to have taken place at the applicant’s home in Doncaster East not long after the first occasion on which the applicant and the complainant had sexual intercourse. F said that she remembered being very young and inexperienced and being led sexually. They went into a bedroom other than the main bedroom. They were on the bed. She stimulated his penis with her hand until his penis was erect (Count 6) and she stimulated his nipples with her mouth and hand (Count 7). They kissed. He inserted his fingers into her vagina and then they had sexual intercourse.

(iv) Counts 8 & 9:

F said that she thought that the events comprising Counts 8 and 9 occurred when she was in Year 10, in 1986, but she was not sure. On another occasion at the applicant’s home in Doncaster East, the applicant told her he was considering accepting a job offer at another school. She said that by that time she had developed a dependency on the applicant and had panicked. He had become like her “father and husband in one”. She commenced pleasing him sexually while begging him not to accept the offer. She stimulated his penis with her hands until it became erect (Count 8) and stimulated his nipples with her mouth (Count 9). They then engaged in sexual intercourse; she sitting on top of him.

(v) Counts 10 & 11:

The events comprising Counts 10 and 11 were said to have occurred on an occasion about the time of the F’s fifteenth birthday. The applicant picked her up and drove her to the Kevin Bartlett Reserve in Burnley. As a birthday present he gave her small black bikini bottoms and a pair of black and white earrings. He told her to undress completely and put on her presents. She said that she felt self-conscious because they were in a public place and it was daylight. But she did as he requested. She then stimulated his penis with her hands (Count 10) and stimulated his nipples with her hands and mouth (Count 11). They engaged in sexual intercourse. On that occasion he did not use a condom.

(vi) Uncharged acts:

F said that the first time she had sexual intercourse with the applicant was at his home about one month after the first sexual encounter (Counts 1–3). It occurred in the master bedroom. She described the layout of the bedroom and was asked by the applicant’s counsel to draw a plan of the room (Exhibit 2). She said that she had noticed a packet of condoms on top of a set of drawers. She and the applicant were both naked and had been kissing and she had been caressing his penis and stimulating his nipples. He then went to get a condom and she said that she had “freaked out”. She said that she had told him that she could not do it with the applicant’s wedding photo looking down on them and he had spent some time reassuring her that he would not hurt her and that he cared for her. She said that she did not want to have intercourse but felt pressured and wanted to please the applicant. He put the condom on and penetrated her vagina until he ejaculated. He went to the bathroom and came back without the condom. They lay on the bed for a while before he took her home.

F said that she subsequently had sexual intercourse with the applicant on many other occasions, including in his car, at school in his office and the gymnasium, at her house, at the Kew Boulevard including in nearby trees and car park areas, at her grandmother’s house, and at hotels. She gave evidence that she specifically remembered an occasion in his office where she stood up facing the desk with her hands on the desk and the applicant entered her from behind while she had her head turned towards him kissing. She also deposed that he would often have her perform oral sex while he was driving and that his nipples were particularly sensitive and he liked her stimulating his nipples while he was driving.

F also spoke of numerous occasions when she met the applicant at night. She said that she would either sneak out of home, or arrange to stay with friends who would be in on the arrangement to go out at night with the applicant. The applicant would provide her with West Coast Coolers, which were alcoholic drinks which he also liked. At different times he suggested she enter the Miss Australia competition and become an aerobics instructor. On another occasion he told her she was too fat and should eat less. He said she should try doing what her anorexic friend was doing and limit her daily food intake to an apple and a piece of toast.

F said that her sexual relationship with the applicant continued until after the end of Year 12 in 1988. She said that she had tried to terminate the relationship during the Year 12 exam period and moved to her grandmother’s home. But even then she relented and eventually told him where she was staying. He went there a number of times. He told her that they would end up together and get a house in Queensland.

F was also asked about going to Adelaide with the applicant when Mark Kratzman was playing tennis there. She answered that they were in Adelaide over New Year’s Eve and she remembered the applicant sneaking out of the room to go and call his wife to wish her a “Happy New Year’s Eve”. She remembered commenting that it was as if the tables had been turned. She thought he wanted to call his wife without the complainant knowing about it and that is why he went to a public phone box to call. She said that she knew what he was doing because she followed him and thought it was ironic that he would try to sneak away from her to call his wife. She thought that the hotel where they stayed was in Glenelg on the road that went straight down to the beach.

F also said that she remembered the applicant telling her that his wife was very sensitive about the mention of F’s name. She said that he had told her that he believed he may have spoken to his wife too much about her before they became involved and that now the mention of F’s name or calling her was “like a red rag to a bull”. F said that when she was younger she did not talk to the applicant about his wife very much but as she became older she started saying to him that he should leave his wife and that she could not live with the situation as it was. The applicant told her that they would be living together after she left school. F said that she had a number of conversations with the applicant’s wife and saw her at least once at the Fitzroy Football Club after-game drinks. That would have been in 1988. She was there as the girlfriend of one of the players R at the Fitzroy Football Club.

It was put to F in cross-examination that she had had a sexual relationship with R in 1988 in Year 12 and she agreed. She said that the applicant had asked her to become involved with him for the purposes of making it look less suspicious for the applicant and F to be together.

Among other exhibits tendered in the course of F’s evidence was a document called the “surprise party invitation”[1]. F gave evidence in chief that she had at one point tried to break off with the applicant and that the letter was his response. She thought that he had given it to her at school. In cross-examination she said she went to see the applicant in his office at school at his invitation. She accepted that there may have been occasions when she went to his office and he was not there and she would wait for him. She denied that she had taken the surprise party letter off his desk. She was clear that the applicant had handed it to her personally.
[1]The contents of the invitation read:
“ ‘SURPRISE PARTY’
(ssssh ….. Keep it quiet)
As a celebration of the 2^nd Anniversary of a beautiful relationship
Miss [F] and no friend
Is required to attend either/all of the following functions. Please indicate ASAP those which you are to attend.
(1)A weekend cuddled up in a log cabin in Gippsland (Rawson) making love all day and all night with the man you love. Date: Sunday/Monday
(2)A picnic day on a lake at Rawson, followed by a beautiful love making afternoon with the man you love. Date: Monday
(3)A dinner by candlelight, an island cooler, music and whatever you can think of with the man you love. Date: Wednesday/Thursday
(4)None of the above because you are pissing off the man you love.”

The surprise party letter stated: “As a celebration of the second anniversary of a beautiful relationship” and continued with four options with boxes to tick. The first three options involved offers to spend time together, in two instances at Rawson; the fourth was “None of the above because you are pissing off the man you love”. She said that she wrote in “All the above if you leave your wife,” and gave it to him, but that after the applicant looked at it quickly he seemed dissatisfied with her non-compliance and handed it back. She recalled that she had later cut off the sentence she had written and thrown it away because she felt foolish about it, but that she kept the rest of the letter.

Asked the whereabouts of the letter, in examination-in-chief F said that she had given the letter together with all other notes given to her by the applicant to solicitors whom she had consulted in 1992 as to whether there was any action that could be taken. She added that she was not sure precisely what she wanted but felt badly abused and “wanted someone to care”. In cross-examination she said that “I was not pro-active at that time. I was very distressed. I was just there kind of wanting someone to care … and that it wasn’t okay that he had abused me. That’s what I wanted. Everything else was nothing” She agreed that she was still seeing therapists at the time. She did not recall discussing compensation specifically. She said that the reason she did not pursue any legal action after going to the solicitors in 1992 was that her grandmother begged her not to do so. She said that she was terrified that it was going to destroy her and her reaction scared F.

Asked the whereabouts of the other notes which she said that the applicant had given her, F replied that it appeared that the solicitors had chosen to photocopy only the surprise party invitation and had returned the original and all of the other notes to her. She subsequently burnt them in a pot, ceremoniously, as part of an attempt to put the relationship behind her and move on with her life. She said that she also disposed of all other items given to her by the applicant. Evidence was given that Exhibit C was obtained by police from the solicitors when investigating the complaints which F later made to police during their investigation of the present matters.

It was put to F in cross-examination that in 1989 and while under psychiatric assistance with a Glad Miller at the Royal Women's Hospital she also saw Miller for an eating disorder. She agreed and said that a friend of hers had told her that Miller thought she was fantasising. She confronted her friend about it and the friend said she had not said that at all. The complainant was left bewildered about the incident.

She was also asked in cross-examination whether she had “associations with other men during Years 10 and 12 to get at Gavin Hopper” and she said that she had but that she wished to add to that answer if it were permitted to do so. Defence counsel would not permit her to do so.

F was asked when she had first complained to police. She answered that she had made her first statement to police on 19 February 2001 and added that: “I was stronger then. I had come to a point where I knew that I had been abused and that it wasn’t okay and that I needed Gavin Hopper to be accountable for what he had done to me, and I needed to be heard.” She denied that she had done it out of a desire to get money from him.

Other witnesses

The complainant’s mother, N, gave evidence of first becoming aware of the existence of a maths and physical education teacher at Wesley named Gavin Hopper. She could not recall when she first met him but she remembered that he had come to their house on a number of occasions and that he drove F to and from school from about 1985. She said that he had telephoned her approximately twice to express concern about F’s progress in maths. She said that F had taken piano lessons when she was young but she could not recall whether there was a piano recital at Camberwell. She had no knowledge of F going to the applicant’s house and did not think she had met his wife. She recalled an occasion when F was a bit older when the applicant took F to the beach, but she was not aware of any other occasions on which the applicant had met F outside the school context. She said that she noticed a difference in F from about 1985. Her marks started to deteriorate and she changed from being outgoing to unhappy. She confirmed that F had gone to stay with her grandmother during her last year at school. She said that the applicant was particularly agitated on that occasion. She recalled that F had gone to their beach house to study for end-of-year Year 12 exams and had told her not to tell anyone, even the applicant. She said that surprised her because the applicant was supposed to be a friend but she did not ask F the reason.

In cross–examination she conceded that the relationship between F and her step-father was not a good one. She said that F was an angry young woman. She conceded that she had had no suspicions about a relationship between the complainant and the applicant until she was told of it by F. But she said that there was an occasion when her husband had come home from work unexpectedly and found the applicant’s car parked outside their house in the street and said that he had heard F’s window being opened. She said that she remembered saying to the applicant and F at a later time that she was worried about their relationship and then walking away. She was unable to do anything about it. She was having her own problems at the time. She was unable to place either incident in a time frame except to say that one followed the other.

B, a student at Wesley College from 1984 to 1988, gave evidence that she had been friendly with F. She said that the applicant had trained her for athletics and was her physical education teacher. She used to train at school before school hours and had a normal student/teacher relationship with the applicant. She recalled one occasion, however, late in Year 10 or Year 11 (1987 or 1988) when she turned up at the school unexpectedly and went to the applicant’s office. She pushed the door open and saw F with her back to the door straddled across the applicant. She said that they were kissing and touching and it looked like they were having sex. She retreated and ran to the toilets where she hid until she heard the sounds of other students arriving at school. She said that she was very scared by what she had seen. It was over a year before she told a friend and she never discussed her observations with F.

In cross-examination she accepted she did not see the entirety of the applicant’s face because it was obscured by F’s head but she said that she could see enough to know it was him.

U, another student at Wesley College, Prahran Campus between 1986 and 1988, said that she was friendly with F. The applicant was never her teacher but she said that she saw F with the applicant on several occasions throughout her schooling. She said that during 1986 she noticed “a sort of recognition between them, what I would consider flirting glances, perhaps a brushing touch, something more intimate than your general sort of student/teacher relationship” and she said that during Year 11 she noticed physical contact between them in the classroom after students left the room. She gave evidence that in Years 11 and 12 she observed them arriving at and leaving school together in the applicant’s vehicle. U said that she had married in February 1988 and lived in an apartment in South Yarra until the end of June 1988 and that in April 1988 the applicant came to her apartment when F was there. She said that he arrived at about 5.00 pm and stayed for between two to two and a half hours. When he arrived he had kissed F on the mouth, “the sort of kiss she would give to her husband”. The applicant and F then sat on the floor in the lounge room with their legs touching. During the conversations that followed they engaged in intimate touching. This continued until her husband came home. The conversations were about sexual experiences. They spoke about past meetings and how funny it was that F had to climb out her window to meet up with the applicant. She said that this was the first occasion when she had seen them very open with their affections towards each other.

In cross-examination she said that after Year 12 she had drifted apart from F but that they had become very close again in 1996 when she lived with F for about 15 months and F had worked as a nanny looking after her daughter. At that time F was having therapy but she said that they did not discuss those events at that time and that she was not as emotionally distressed as she had been previously. F was attempting to get her life back together and was doing quite well. Since that time they had not been as close but remained in regular contact.

P was a student as Wesley College, Prahran Campus from Year 9 to Year 11 (1985) in the same year level as F. She said that she and F had been friends. She would sometimes stay with F at Kew, and F would stay with her in South Yarra. She lived within walking distance of the school. F would arrange to stay with her to provide cover for her to sneak out at night to meet the applicant in the school gym. She said that she saw the applicant once or twice when he picked F up from the house. It happened at night at about 10.30 or 11.00pm after her parents had gone to bed for the night. F would generally leave by the front window. She said that they would use “blu-tak” to secure the blind in place so it would not blow in the wind. The window was left open so her parents would not hear it opening and closing. F would come back in the early hours of the morning. These events occurred within a few months of the commencement of Year 9 (1985) and continued throughout their friendship whilst at school. She said that the same thing happened when she stayed with F at Kew. F would go out at night to meet the applicant. On one occasion she saw the applicant sitting in his car out the front waiting for F.

In cross-examination she said that F told her about half way through Year 9 that she was in a relationship with the applicant. She agreed that she did not see any physical contact between F and the applicant, but said that she did see a lot of “intimate eye contact”. On the occasion she saw the applicant waiting for F in the car outside F’s house, she went to the door and observed the applicant opening the car door for F.

A was the mother of P. She knew F well and was very fond of her. A said that she had permission to swim at the school pool and in 1986 had done so between three and four times a week before work. She said that she saw F in the pool on a number of occasions. On the first occasion F had arrived at the pool with a young man in a white sports car. F was wearing the summer uniform so the occasion would have been at the beginning or end of 1986. She said that she found out later from her daughter that the man she had seen was a teacher they called “Gav” and his full name was Gavin Hopper. Later she saw him often around the school as well as in the pool. She recalled another occasion when she arrived at the pool and F and the applicant were already in the pool. They were embracing. They quickly separated and commenced swimming laps. She said that it was the first indication to her that there was a relationship between them. She said that there was a further occasion when she had been swimming in the pool and was returning to her car and then remembered she had left her towel behind. When she walked back into the pool area to collect her towel the applicant was diving between F’s legs, coming up behind her, grabbing her and pulling her into the water. She was giggling and laughing. A said that she picked up her towel and left. She knew that F had seen her. On other occasions she saw them swimming laps in the pool.

In cross-examination she said that she came to know F well because she had come and stayed with the P’s family at their country place but that the relationship was not as close after F reached her teens.

W was a mathematics teacher at Wesley College in 1985 and subsequent years. He gave evidence that he was a friend of the applicant and knew F and taught her maths in Year 9 or 10. He did not have contact with her outside school except on one occasion when he gave her a lift to Sydney. He said that she would have found out he was going to Sydney through the applicant. Before the trip he went to F’s house to meet F’s mother. The applicant was at the house to introduce W to F’s mother.

In cross-examination he said he could not recall whether anyone was with him when he went to collect F to take her to Sydney. He said that he frequently spent recess and lunchtimes with the applicant in his office. F was “possibly” present. He said that he would not have thought that sexual matters were discussed in the presence of F. He only saw F and the applicant together in the course of normal school hours. He did not notice anything unusual about their relationship. He was aware that the applicant was driving F to school. He had no recollection of going to a picnic with the applicant and the F in Glen Iris.

S attended Wesley College from 1983 to 1988. She was a friend of F. She gave evidence that they met in Year 7 and were closest towards the end of school in 1988. She said that in Year 9 F was a very attractive girl, probably one of the better looking girls in the school, and happy and very vivacious. S gave evidence that she had been to the applicant’s office many times, especially during Years 11 and 12 and that on many of those occasions F was there as well. She said that students would stop by to see the applicant. He was a popular teacher. W would also be there. He and the applicant were good friends. There was an occasion when she was present in the applicant’s office with the applicant, W and F and a conversation took place between the applicant and F which was full of sexual innuendo. She could not remember details except that the conversation included discussion about breasts. She recalled other similar conversations that she had witnessed. She said that they occurred fairly often and were more than just student/teacher conversations. She did not notice anything physical between the applicant and F but she said that there was definitely more going on in their relationship than just between student and teacher. She had started noticing the relationship between them in Year 10. She would see them arrive at school together in the applicant’s car. They would arrive at about 7.00 to 7.30 am. She never saw them leave together although F told her the applicant would regularly drive her home. She recalled an occasion when F telephoned her at home. She believed that F was in her bedroom on her own. However, at some stage F put the applicant on the telephone and she spoke to him. She said that during Year 12 the applicant had established a personal training business and had used F in a photo shoot for the publicity brochure. In the same year S said that she started going out with a professional tennis player, Mark Kratzman, who was being coached by the applicant. She said that they had a holiday in Queensland during the September holidays and stayed with the applicant and his wife at their Gold Coast home. It was the first time she had seen the applicant with his wife. She was surprised that he seemed to be a happy family man. She was shocked because F had told her all along that she and the applicant were in a relationship and he had promised to leave his wife and set up a flat with her. She decided upon returning to school to confront the applicant with the lies he had been telling her. He initially denied he was in a relationship with F but when she persisted he had admitted it. She said that he attempted to play it down, saying it was really nothing; that it could have been any of the girls in their group.

She was tackled about that conversation in cross-examination. She said that it occurred in the applicant’s office and that it lasted about 15 minutes and that it was directed towards the fact that he was not going to fulfil his promise to F. She denied that she was angry but agreed that she was emotional and upset. No-one else was present. She said that she thought she told F of the conversation. She was not aware that F had had a relationship with a person named R in Year 12.

T attended Wesley College between 1985 and 1988. The applicant taught her physical education in Years 9 and 10. She gave evidence that she had been welcomed very warmly by F on her first day at the school, in Year 9. They became friends, but were not close. Towards the end of Year 9 she noticed that F and applicant were very friendly. There was a lot of gossip about them. She said that they seemed to be having more than just student/teacher discussions. She remembered seeing F in the applicant’s office in Years 11 and 12. She recalled an incident early one morning in Year 11. She arrived at the school at about 7.30 am with a friend, K (now deceased), to use the school sports equipment. She opened the door to the gym and saw the applicant and F together. The applicant was lying on his back on a bench with F straddling him, kissing him “enthusiastically”. Her hands were on his shoulders, her pelvis on his lap and it looked like she was grinding herself into him. She was wearing a long, pale, non-school windcheater and he was wearing blue and white running shorts and maybe a singlet. She said that she could not tell whether F was wearing anything under the windcheater. The applicant’s shorts looked uncomfortable, stretched. She could not see bare buttocks but it looked like they were pulled down to his mid-thighs. It appeared they were in the middle of a very intimate moment. She observed them for a number of seconds, then closed the door quietly and left. She and her friend decided to go swimming instead. She discussed it with her friend but not with anybody else.

In cross-examination she said that the distance between the door of the gym and the bench where she observed the applicant and F was about the width of the courtroom. She did not see their faces but she saw their profiles: their noses, one side of their cheeks and “[F]’s very vibrant hair and Mr Hopper’s vibrant tan …” She said that it was a very confronting scene and she felt very embarrassed.

C had attended Wesley College, Glen Waverley and transferred to the Prahran campus in 1986 in Year 11. She gave evidence that she knew the applicant was a physical education teacher and that H was a mathematics teacher. Neither taught her. She said that F was in the year below her year level. She did not know F personally but she knew her by sight and name. They did gymnastics together. In Year 11 she was a member of the school gym team. She said that there was an occasion in autumn or winter of that year when she overheard a conversation in the weights room between the applicant and H. She had been doing some extra training in the gym during the day and was planning to take a short-cut through the weight-training room to the change rooms even though it was not permitted by the school rules. As she approached the room she heard two teachers speaking: the applicant and H. It was not a very big room. One of them was sitting on a bench press. She heard the applicant tell H: “that he couldn’t wait until [F] was 16 because then she would be legal”. That was the only part of the conversation she could recall. After hearing the conversation she backed away and went through the other entrance. She did not think she was observed She did not tell anyone in authority what she had overheard.

In cross-examination she said that she would have discussed the incident with her girlfriends. She could not recall whether she had ever spoken to either teacher about it. She could not recall who was sitting and who was standing. She could not now say whether she saw the applicant’s mouth moving. She did not hear any more conversation because she believed she had heard something she was not supposed to hear.

D began as a student at Wesley College, Prahran in Year 7 in 1983 and stayed until the end of Year 11 in 1987. She gave evidence that she was in the same year level as F and they were close friends. They spent a lot of time together outside school and they stayed at each other’s homes. The applicant was her sports teacher; he had blond hair and was always tanned and fit. He wore shorts a lot. She said that she first observed flirtatious behaviour between F and the applicant in Year 8 or 9. She said that F told her in Year 8 or 9 she was having sex with the applicant. F told her it was a secret and if her mum found out she would kill her. D said she had seen F arriving and leaving school with the applicant in his car on several occasions. Sometimes there was training after school at Albert Park. A few times she got a lift with F and the applicant. She said she was aware that F used to visit the applicant in his office before school, during recess and lunch times and after school. She saw physical contact between them a couple of times. The first time was when she was in the applicant’s office and F was present. He touched her in a sexual way that was not a student/teacher touch. That was during Year 8 or 9. The other time was when she walked into the office and F was sitting on the applicant’s lap. F looked guilty at being caught and jumped off the applicant’s lap and acted as if nothing had happened. She could not remember the applicant’s reaction. She recalled going on a picnic in a park off High Street, Glen Iris with F, the applicant and a maths teacher from the school, W. After the picnic they went back to W’s place “somewhere like Malvern or Armadale”. She remembered feeling awkward at the intimacy between F and the applicant. It was clear they were in a relationship. She expressed her concern about it to W when F and the applicant were out of earshot.

In cross-examination she said that it was apparent to her that F had a crush on the applicant. On the first occasion she saw the applicant touching F he was touching her around the waist and side. She remembered suffering from sunstroke at the complainant’s house in Albert Park when she was in Year 8 or 9. It was either a weekend or during summer holidays. It could have been at the end of Year 8, or the beginning or end of Year 9. She said that she was definitely not mistaken about seeing F sitting on the applicant’s lap. She was not standing beside him. She said W must be lying if he said he did not go on a picnic with her.

John Ganas was a handwriting and document examiner at Victoria Police Forensic Services Centre. He was asked to carry out a comparison between the surprise party letter and a two-page handwritten letter dated 3 March 1981 written by the applicant [Exhibit E]. He concluded there was no evidence of manipulation of the document. The entry “Miss [F] and no friend” appeared to be written with different pressure or different ink and was treated as a “separate writing event”. The word “sssh” looked like it had been squeezed in between two lines and was also treated as a separate event. He concluded that the balance of the writing on the document was written by the same person as the specimen document [letter dated 3 March 1981]. In relation to the separate writing events he said there were not enough words to form a valid opinion.

Detective Senior Constable Prestidge gave evidence that he became involved in the investigation in March 2001 when he was contacted by a detective from the Victoria Police Assets Confiscation Squad and asked to speak to F about putting a caveat on a property. He did so. He said that F initially told him the she was not interested in speaking to him but that some weeks or months later she had contacted him again and requested to be able to speak to him. He arranged it. He next met F on 26 July 2001. After investigation he interviewed the applicant. According to the record of interview the applicant told police he remembered teaching F physical education at Wesley from about 1986 to 1988. He said that they had a friendly relationship but that he never had any sexual contact with her. It was, he said, a normal student/teacher relationship. He would take her to school for sports training in the mornings. He would also pick up other students. He did not drive her home. He was tied up every night until 9.00 pm. He never took F on outings outside school hours. F used to come to see him in his office – “There’d be no reason why she wouldn’t”. For the last couple of years he was “… a little hassled by [F] in some sort of … I s’pose phone calls and things like that … Karen [his wife] and I changed our phone number a couple of times”. He said, “… there was a couple of girls that sort of, I s’pose, it might’ve been a teacher crush or whatever …”. There was no conversation, just calling and hanging up. He made an assumption it might be F. He discussed it with his wife. He spoke to F about it and she said it was not her. He never spoke to anyone at school in authority in relation to the crush and being called at home; he thought he may have spoken to teacher friends at the time. He had no recollection of being in the pool alone with F.

The applicant gave evidence. In evidence in chief he adopted his record of interview as being true and correct but wanted to clarify the reference to picking F up at school and taking her to her house. He said he did occasionally do that when his busy schedule permitted him.

He said he taught at Wesley College from 1985 through to 1988. He taught both physical education and Year 12 Accounting. He also had other business and sporting interests including being fitness adviser at the Fitzroy Football Club from 1985 to 1989, conducting a tennis coaching school at Viewbank and coaching at Melbourne University. As head fitness adviser to the Fitzroy Football Club he had to be at training sessions three times a week – Monday, Tuesday, Thursday, at Saturday games and again on Sunday mornings. They would train at Albert Park. Training during weeknights would commence at 4.30 pm until about 7.30 pm. He said that his wife accompanied him to all games except interstate games. He said that he arranged for the Fitzroy Football Club to have access to the Wesley pool and gym. Players would come every morning from 6.30 am and stay through to 8.00 am. The players would have about a month off in October. The Club made the finals in 1985 and 1986 and, he thought, the first final in 1987. The committed players and players whom the coach David Parkin thought would benefit from extra training would come to train with him during the off-season as well. During the off-season he would train four nights a week and Saturday mornings. He also ran a full-time tennis academy. He said that he reduced his commitment to the academy to two days a week because of the Fitzroy Football Club commitment. He was responsible for opening up the pool and gym in the morning. He would arrive around 6.30 am. He encouraged students to attend as part of a get-fit programme.

He said that he and his wife married on 15 December 1979. She was in full time employment as a primary school teacher and worked at schools within 5 to 10 minutes drive from home. They were happily married and enjoyed a normal sexual relationship. They did not use condoms.

He said that R was one of the Fitzroy Football Club players who trained at the gym during 1988. F also trained at the gym in the mornings. He saw them together in and around the pool in 1988. He said that he saw various intimate cuddling and a kiss and kissing between them. R drove an RX7 car that many of the players at the Football Club drove. It was light grey.

The applicant swore that he never attended the applicant’s piano concert, never bought her birthday presents, did not know where the Kevin Bartlett Reserve was and never drove F there. He never received a job offer from another school. He never went to the Chevron with F, G, or his wife.

He admitted that he had written the surprise party letter but said that he did not give it to F or write her name on it. It was, he said, a note written to his wife in 1981 which he gave to his wife sometime at the end of 1981 on the second anniversary of their being together. He said that the reference to “Island Cooler” was to a drink which his wife liked at that particular time. He was asked about the reference to Rawson. He said his mother and grandparents grew up in Gippsland and he knew the area very well. It was a quiet time at the end of the year and he and his wife liked to get away during school holidays. He said that he had a drawer full of personal notes in his office at the school. His wife would place personal notes in his bag before leaving home. He would write poems to his wife “consistently”. Indeed he said that he had hundreds of notes from his wife as she had from him. He said that the surprise party invitation could well have been in his office.

He denied that his nipples were unusually sensitive. He did not know U and never went to her house with F. He said that he never went on a picnic with W. He denied that he ever picked up F from P’s house.

He said that he coached Mark Kratzman in 1988. He went to tennis championships in Adelaide with him. But his wife accompanied him, not F.

He said that F’s mother never spoke to him about any suspicions that F might be having a relationship with him. He did not discuss F being under age with H. He did not have personal conversations with H. He said that he never told F to get involved with R but that F and G had come to his house on at least one occasion when his wife was present.

In cross-examination he said that he met his wife in 1973 and that they had been together ever since. By the time they got married in December 1981, they had been together for 8 years. He said he wrote the surprise party invitation to his wife on the second anniversary of their marriage. He said the invitation referred to their marriage, despite having had a relationship for eight years prior to getting married, because they did not live together before they were married. He said he may also have written a poem on the back of the invitation; he normally wrote poems on the back of his letters to his wife. He did not write the words “Miss [F] and no friend”. He could not say whether he wrote the dotted line. There was no reason why he did not specify the invitee; he was giving it to his wife. She did not tick any of the boxes but wrote something like “Let’s go to the beach instead.” He said it must have ended up in his drawer at work because his wife would always put personal documents in his bag. He would have found it when he got to the Glen Waverley Campus sometime late in 1981. He could not recall whether he was teaching in mid-December or whether school had broken up. The document could have still been in his drawer many years later at the Prahran Campus when F was in his office. There were a lot of documents there. He said that he was not sure whether he had been to Rawson with the Fitzroy Football Club but that he remembered going to Rawson once with his parents in the 70s. He thought he may also have gone there later in the 80s with the Fitzroy footballers on a training camp. There were some facilities there but he was not sure. He remembered it was quiet and small. He could not remember why he put Rawson as an option for his wife; she had no connection with Rawson. He could not say why he put the options on various days of the week.

He could not recall when he first saw F. It would have been somewhere between Year 7 and Year 9. He did not recall that Year 9 tennis class that she described. He gave F lifts to school at various times throughout the years she was at school. It was not very inconvenient for him to detour from his usual route. He occasionally gave her lifts home. He had a “good friendly relationship with [F] … I don’t specifically remember driving her home but I’m sure it may have happened on occasions.” He said that he would have been at F’s house sometime and spoken to her mother. It may have been once or more than once. He may have discussed F’s difficulties with maths with her mother but he did not recall it. Even though he did not teach maths he would have tried to help students in any way he could. He may have been to the Chevron once but not with young people, maybe with the Fitzroy Football Club. He could not recall ever seeing A in the swimming pool.

He was asked about his knowledge of the drink “Island Cooler”. He agreed that Island Cooler was probably a brand of wine cooler and said that his wife would have enjoyed those sort of drinks at the time. He could not say when she started enjoying them. He said that he mentioned Island Cooler in the invitation because he assumed it was a certain type of drink. He said that had never had wine coolers himself; he did not really drink alcohol. He had a suntan during those years because he used the solarium he had set up at home throughout the year. Pressed further about the surprise party letter he said that to his knowledge his wife had never been to Rawson but he thought he had been there with his parents some years before. He was not sure whether he had stayed there or not. He had travelled around Gippsland quite a lot and had stayed with his wife at various locations around Victoria. He said he did not have a reason for picking a place they had not been to before.

He admitted that he believed that F had a crush on him but he could not say from when. But he said that he did not see anything wrong with an adult/male teacher giving a lift in the dark in his motor car to a “beautiful young girl who he thought had a crush on him”. Neither did he consider it inappropriate to be party to the commencement of a sexual relationship between a school girl who was at most 17 years old, and a footballer who was using the school premises by permission of the school to train. He denied engineering the relationship between [R] and the complainant to suit his own interests. He said he had never discussed any aspect of the case with his wife except to tell her sometime after he learnt of the allegations what had happened.

He was asked again about his wife drinking Island Cooler in 1981 and he replied, “I’m not sure what an Island Cooler is … I’m not sure what it related to but no. I don’t know.” He said he was not sure if it related to a drink. He could not shed light on why he had put those words in the letter. The applicant maintained that he wrote the document in 1981 and that he gave it to his wife in late 1981. The applicant said he did not know when Island Cooler was invented. It was put to him that it was first put on the market in Australia by two Melbourne businessmen in early 1985 to which he replied: “I’ll take your word for it”. He said he was trying to relate to what he believed was a drink that his wife liked around that period.

David Parkin was coach of the Fitzroy Football Club from 1986 to 1988. He gave evidence that he employed the applicant as fitness trainer for the players. He was responsible for the physical preparation of players both pre-season and during the season. During the season they would train Tuesday, Wednesday, Thursday evenings and mornings at the Wesley gym or pool as required. The applicant’s responsibilities also included attending the games on Saturdays and a rehab session on Sunday mornings. In 1986 the team made the preliminary-final. They would have eight weeks off between September and November. He said that the applicant was very conscientious and professional.

In cross-examination he said that the club went on two training camps to Rawson. It was a chosen because it was cheap and had all the requisite facilities for a training camp. It was basic but comfortable. There was a lake at the bottom of the town with a track around it. They used the track for training. The camp would have been 3 days and 2 nights over a weekend.

Karen Hopper was the applicant’s wife. She gave evidence that she was a primary school teacher. She said that in 1985 she worked full time as a physical education teacher or a grade teacher. She worked at schools that were either 5 minutes or 15 minutes drive from Doncaster East. Her husband had a very busy schedule. He worked full time as a teacher and coached evenings and weekends. After they moved to the house at Doncaster East in 1985 they spent a lot of time over the weekends in the garden. She said that when the applicant started work with the Fitzroy Football Club she would go to the games with him.

She said that she was aware her husband would pick up students and drive them to school. He told her. She knew he drove F to school. Mrs Hopper said that the complainant had come to her home once with G, a Wesley student whom her husband coached at tennis. She said that it would have been in the second half of 1985 or the following year.

She said she had not attended F’s piano concert. She had never gone to the Chevron Nightclub with F and never met her mother. She said that she had no knowledge of a job offer being made to her husband while he was at Wesley. She used to attend interstate tennis tournaments with him. She went to Adelaide when Gavin coached Mark Kratzman; that would have been 1988/89.

She swore that the applicant used to write her letters during their relationship. She was shown the surprise party invitation. She said she may have received something like it. She did not have a specific recollection of the letter although she said that the format was typical of letters the applicant had written to her. She had a drawer full of them. She said that their relationship during 1985 was a very close one: “We were a young couple in love. We shared almost everything … We didn’t have children to distract us and our lives were very busy but we spent all of our spare time together”. They had an active sex life; they did not use condoms. She said that she had no suspicion from 1985 to 1988 that her husband may have been involved in an inappropriate relationship with anyone.

In cross-examination she repeated that she met F once when she came to her home with G some time between 1985 and 1988. Her husband picked them up and brought them over. She was shown Exhibit A, being photographs of F when still at school. She did not recognise her. She said that she only remembered the light blond hair. She did not know where F lived. She said that she did not think the applicant told her that F had a crush on him. She could imagine there could have been a number of girls that had a crush on her husband because he had always been very good looking. She was not aware that the applicant went swimming before school. She recalled that at one stage at Doncaster East they were getting calls in which the caller did not speak. It happened for a while so they decided to change numbers. She said that there was no discussion about who “specifically” it might have been. The calls stopped after the number was changed.

She was asked about Rawson. She recalled being there once with a football camp. She may have been there before then but had no recollection of it. She was also asked about her drinking habits in 1981. She described herself as a “social drinker” who liked drinking bubbly type UDL can type drinks. She did not have a favourite drink at the time. She was shown the surprise party letter and said: “I’ve received writing from him like this in this type of format … I possibly may have seen it years ago” and “I possibly may have received it but no, I don’t really recollect receiving exactly this piece” ... I have no specific memory of this document”. She said she possibly may have drunk Island Coolers as she drank a lot of different things but nothing in particular. She had no specific recollection of ever having had one. She thought it was a light mixer in a bottle, an alcoholic lemonade type drink. When it was put to her that the surprise party letter was quite clearly not intended for her, she replied: “I don’t know the intentions of that letter”. After being told that Island Coolers only came out in 1985 she said that the words maybe referred to something else because they were written with small letters. She could not say that the document was not intended for her.[2]
[2]In addition to the witnesses already mentioned, evidence of formal matters was given by S and the applicant's sister-in-law.

Grounds of appeal

The applicant’s amended notice of appeal includes 18 grounds of appeal but only some were pressed in argument. They were that the judge erred in admitting evidence of subsequent sexual activity and relationship evidence (Ground 2); that the trial miscarried because evidence was admitted of uncharged acts of sexual penetration alleged to have occurred at the same time as the counts on the presentment (Ground 9); that the judge erred in failing to exclude some of the questions and answers in the applicant’s record of interview (Ground 4); that the judge erred in not permitting the applicant’s counsel to cross-examine F on sexual activity with other men (Ground 3); that the trial miscarried because of the nature of cross-examination of the applicant on the date of first sale of Island Cooler (Ground 17); and that the judge had failed to give an adequate Longman warning, directions on the need for corroboration of F’s testimony, the effects of the lack of recent complaint and delay, identification, and consciousness of guilt (Grounds 11, 12, 1 and 13, 14 and 16 and 18). We shall deal with those grounds in that order.

Ground 2

The applicant contends that the trial judge erred in admitting evidence of the sexual relations which occurred between the applicant and F after F turned 16 years of age. He submits that the sexual activity in question was so distant in point of time from the charged acts as not to be “reasonably required” to establish the desire or feelings of the applicant for F at the time of the charged acts, and not otherwise to be relevant to place any of the charged acts in proper context. It is also said that the volume of the evidence of the sexual activity in question was relatively speaking so great as to be likely to distract the jury from impartially considering the evidence which related to the offences that were charged. The applicant invokes the following passage from the judgment of Hunt, C.J. at C.L. in R. v. Beserick[3] in support of his contention:

“… The more remote the other sexual activity is, the less will be its weight; and, in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity.
… the stage will inevitably be reached where the evidence of other sexual activity between the complainant and the accused will no longer reasonably be required either to establish the guilty passion (or the sexual desire or feelings) of the accused for the complainant or to place the evidence of the offence charged into a true and realistic context, and it does little or no more than emphasise that the accused has a propensity for committing crimes of the nature charged or crimes of a similar nature. When that stage has been reached, trial judges should be firm in excluding the evidence tendered.
…
Where the sexual activity between the complainant and the accused has taken place over a long period, it is the usual practice of the Crown to charge the accused in relation to a number of 'representative' incidents which sufficiently reflect the total criminality involved, spread over the whole of that period. Provided that each such incident is sufficiently specified (S. v. The Queen), there could be little doubt that in most cases the whole of the sexual activity between them over that period would quite properly be admitted in order both to establish the desire or feelings of the accused for the complainant at the time of each incident giving rise to an offence charged and to place such incident into its true and realistic context. Once evidence is given that the accused has committed a number of the offences charged, the additional prejudice created by evidence showing that he has committed other offences as well will be much the same whether those other offences be few or many in number. But, even in such a situation, there will be cases where the jury may be distracted by the multiplicity of such other offences from impartially considering the evidence related to the offences charged, and there will be other cases where the offences charged are so far separated in time that evidence of all other sexual activity between the complainant and the accused is no longer reasonably required for either of the two purposes for which it is ordinarily admitted.”

[3](1993) 30 N.S.W.L.R. 510 esp. at 522–525.

Beserick was decided in 1993 when the admissibility of evidence in New South Wales was still governed by common law. In Victoria the position is now governed by s.398A of the Crimes Act 1958. The section lays down a more flexible test of what “the court considers … in all the circumstances it is just ...”. But the common law rules still have a large role to play. As Callaway, J.A. put it in R. v. Best:

“Our task is to construe s. 398A. It must, however, be pointed out that the difficulties of applying the Pfennig case to relationship evidence do not apply to the test in subs. (2). So long as the qualifications expressed earlier are not forgotten, it is appropriate that any division of propensity evidence be inadmissible unless its probative value makes it just to admit the evidence despite any prejudicial effect it may have on the accused. Mere background evidence (cf. Gipp v. R. (1998) 155 A.L.R. 15; 72 A.L.J.R. 1012 at [179], [181]-[182] per Callinan J.) is unlikely to meet the test but legitimate evidence of relationship will usually be admitted. That is because, if the proper directions are given, the probative value of such evidence ordinarily outweighs its prejudicial effect.
… The test in s. 398A(2) is flexible. It applies whatever the reason that gives the evidence its probative value and whatever the nature of the prejudice that is apprehended. The flexibility of the test in subs. (2) means that, properly applied, it will not greatly alter the conduct of criminal trials. Propensity evidence will be admissible whenever it is just to do so 'in all the circumstances'. Those circumstances will sometimes include the impossibility of conducting the trial in a sensible fashion unless the evidence is received. Its probative value is correspondingly high. Similar fact evidence will still be received with great caution because, as McHugh J. pointed out in Pfennig’s case at 530, the risk of prejudice is ordinarily at its highest in such cases. The area of practice that will change is that affected by sub-ss.(3) and (4).”[4]

[4]R. v. Best [1998] 4 V.R. 603 at 612; R. v. TJB [1998] 4 V.R. 621 at 632.

Although evidence of uncharged acts is a form of propensity evidence,[5] the bulk of common law authority accords with the view that evidence of uncharged sexual acts is admissible at common law if relevant for reasons other than mere propensity; usually on the basis that it tends to establish a “guilty passion” or to establish a relationship which serves to place the offences alleged and the complainant’s evidence in proper context. At common law, questions of probative force and prejudicial effect are ordinarily resolved in the exercise of the discretion to exclude admissible evidence of which the prejudicial effect outweighs the probative value.[6] At one point it was thought that the majority in Pfennig v. The Queen[7] may have changed that, by laying down a strict non-discretionary rule of admissibility to be applied to all categories of propensity evidence. According to the Pfennig test, evidence of uncharged sexual acts would not be admissible unless its probative force were such as clearly to transcend its prejudicial effect. But because the issue did not arise directly in Pfennig, it was never certain whether the strict non-discretionary test was intended to apply to evidence of prior sexual acts not tendered as propensity evidence strictly so called; and arguably the uncertainty was then resolved in Gipp v. The Queen[8] in favour of the pre-Pfennig approach. In Gipp at least two and possibly three members of the Court held that relationship evidence is admissible without meeting the Pfennig test, and it appears the better view is that put forward by McHugh, J. in R v K.R.M..[9]
[5]At least in the broad sense discussed in Harriman v. The Queen (1989) 167 C.L.R. 590 at 633.
[6]R. v. Young [1998] 1 V.R. 402 at 410.
[7](1995) 182 C.L.R. 461.
[8](1998) 194 CLR 106.
[9](2001) 206 C.L.R. 221 at 231[31]; see also Smith and Holdenson, Comparative Evidence: Admission of Evidence of Relationship in Sexual Offence Prosecutions, Part I, (1999) 73 A.L.J. 432 at 441.

In any event such doubts as remained were resolved in Victoria by s.398A. It excluded the Pfennig test and, as has been seen, broadly speaking combined in one test of exclusion the elements of the common law test of admissibility and most if not all of the considerations previously relevant only to the exercise of the discretion.[10] It may be assumed that it also incorporates notions of reasonableness of the kind essayed in Beserick. At least it is difficult to conceive of circumstances in which it would be just in all the circumstances to admit relationship evidence when not reasonably required for either of the two purposes for which it was ordinarily admitted at common law.
[10]R. v. Loguancio (2000) 1 V.R. 235 at 243 [22].

We noted earlier that in the bulk of cases in which evidence of uncharged sexual acts has been admitted at common law, the basis of admission has been either that the evidence was necessary to place the alleged offences into their true context or essential background or to establish a “guilty passion”(which is to say a sexual desire of the accused for the complainant) which makes it more likely that the accused committed the charged offences.[11] But the bases of admissibility are not closed. Such evidence has also been held admissible to rebut an anticipated defence of lack of complaint and consequent improbability that the accused would have assaulted the complainant in the circumstances alleged.[12] It is in each case primarily a question of relevance and therefore other possibilities are open.
[11]B. v. The Queen (1992) 175 C.L.R. 599 at 604-605.
[12]R. v. Josifoski [1997] 2 V.R. 68.

Approaching the matter on that basis, counsel for the applicant started with the proposition that whatever may have occurred after December 1986 was self-evidently not sufficiently relevant to the applicant’s desire for F or the context of what occurred before December 1986 to render it admissible. We reject that submission as representing too narrow a view of the relevance of context.

The context of an event is usually comprised as much by circumstances that follow as by those that precede it and that is particularly so where the context in question is a sexual relationship. Common sense and ordinary human experience are enough to dictate that an understanding of sexual activity occurring in the course of a sexual relationship may be informed as much by what follows the subject activity as by what goes before it. It is even more likely so when the activity takes place in the context of a constant underlying relationship such as a parent/child or teacher/pupil relationship. The evidence of sexual relationship subverts the ordinary expectation as to the nature of the underlying relationship and hence changes the context of the charged acts.

Admittedly, most of the authorities are directed to the admissibility of evidence of relationship occurring before a charged act and are based to a considerable extent upon a presumption of continuance.[13] But by and large most of the authorities are to do with isolated charged acts coming at or near to the end of a sexual relationship. The few that are concerned with multiple charged acts occurring throughout the course of a relationship are consistent with the idea that the state of the relationship after a charged act is relevant to context. For example, in R. v. Witham,[14] in a case in which the accused was charged with having committed sodomy on his daughter, a majority of the Queensland Court of Criminal Appeal held that evidence of repeated acts of indecency by the accused on his daughter both before and after the date of the alleged offence was admissible evidence. Brown, J. said:
[13]R. v. Ball [1911] A.C. 47 at 71; Harriman v. The Queen (1989) 167 C.L.R. 590 at 633.
[14][1962] Qd. R 49

“It was also argued that evidence of the acts of indecency by the accused on the girl Elizabeth after the 29^th December, 1960, were inadmissible.
Generally speaking, the acts of indecency here referred to were of the same type or description as those referred to in (a) to (h) above.
In my opinion, it is immaterial whether the acts sought to be described in evidence occurred before or after the date of the sodomy alleged, provided the principle of the cases above referred to were satisfied.
See also Rex. v. Langdon [1920] N.Z.L.R. 495; Reg. v. Rhodes [1899] 1 Q.B. 77) ; R. v. Gunn (No. 2) ([1943] 60 W.N. (N.S.W.) 9).
In these cases evidence of subsequent similar acts were held admissible.
I think this evidence was admissible on the same grounds as set out above in relation to prior acts of indecency.”[15]
[15]ibid at 63.

Stable, J. referred to Balls case and reasoned that evidence of the subsequent conduct was admissible because it “… was all part of the same passion, the same sex urge.”[16] Similarly in R. v. TJW. ex parte the Attorney-General,[17] in a case in which the accused was charged with multiple counts of sexual misconduct with his daughter during the period 31 December 1982 to 1 January 1986, the Queensland Court of Criminal Appeal held that evidence of acts of indecency by the applicant upon the complainant both before and after an alleged sexual offence was admissible in proof of the offence. In S. v. The Queen,[18] the Western Australian Full Court was concerned with the admissibility of evidence of sexual misconduct which occurred approximately three months after an alleged offence of sexual penetration of a person under the age of 16 years. The trial judge admitted the evidence and the Full Court ruled that the trial judge was correct to admit it. Pidgeon, J. reviewed a number of the authorities and concluded that:
“In my view the authorities indicate, as would ordinary experience and commonsense, that conduct of the type it is claimed that the appellant engaged some three month later and when the complainant had in the meantime been living at Maddington [scil. away from the appellant] is highly probative of the relationship between the complainant and him at the time of the alleged offence. There would come a time when it would cease to have that attribute in the sense that it would have occurred at such a distance away in the future that it would not be indicative of the relationship at the time of the alleged offence.
…
It may be that the subsequent acts are so far away in time that no inference could be drawn. I do not consider the evidence in the present case comes within this category …”[19]

Rowland, J. referred to a number of authorities including R. v. Witham. He considered that the point was not so much whether evidence of the kind in question related to conduct before or after the charged offence, as whether the nature of the evidence made it relevant, and that it was a matter for a trial judge to determine. His Honour did not consider that the trial judge had erred.[20] Nicholson, J. undertook an extensive review of the authorities in order also to demonstrate that retrospectant evidence is not inadmissible merely because it is retrospectant or is not accompanied by prospectant evidence. His Honour concluded:
“I have already referred to a number of cases in which subsequent conduct alone has been admitted. In the context of recent authority the decision of the High Court in Thompson v. The Queen (supra) is conclusive the evidence of subsequent conduct is not precluded by such an inference. … In my view Thompson’s case makes it clear beyond doubt, if it ever was in doubt, that subsequent conduct satisfying the tests of high probativeness in Hoch and Harriman is not capable of being rendered otherwise merely because it is subsequent: in other words, the inference relied on for the appellant is not available to defeat the probative quality of the disputed evidence because the authorities recognise that subsequent conduct may be admitted if otherwise satisfying the appropriated tests.”[21]

[16]ibid at 77.

[17][1988] 2 Qd. R. 457.

[18](1991) 5 W.A.R. 391.

[19](1991) 5 W.A.R. 391 at 394.

[20]ibid at 400.

[21]ibid at 410.

Counsel for the applicant contended that even if some of the evidence of the relationship after December 1986 were relevant, on any view of the matter there had to come a point after which its continuation became irrelevant. He submitted that it was necessary to pick a date - he suggested no later than F’s sixteenth birthday on 9 March 1987 - and to treat all which followed as so distant in time and context from the charged acts as to be irrelevant and inadmissible. Prima facie there is some force in that submission.

In R. v. TJW the alleged sexual offences covered the whole period of the relationship. Consequently, although the Court spoke in terms of evidence of subsequent sexual conduct, none of it was necessarily or at least much subsequent to the last in time of the charged offences. Similarly, in S. v. The Queen, although the trial judge admitted evidence of sexual conduct which occurred three months after the charged offence and, as has been seen, that ruling was upheld on appeal, the trial judge also excluded evidence of other sexual misconduct occurring approximately 15 months after the alleged offence and that ruling was not appealed. Nor was it the subject of adverse comment in the Full Court. In Harriman v. The Queen,[22] McHugh, J. explained that evidence of uncharged sexual acts is a species of circumstantial evidence. As such, it is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred.[23] As with other circumstantial evidence, it is confined to facts and circumstances which are sufficiently proximate to be relevant to the matter in hand.[24]
[22](1989) 167 C.L.R. 590 at 631.
[23]R. v. Shepherd (1990) 170 C.L.R. 573 at 579.
[24]R. v. Stephenson [1976] V.R. 376 at 380-381.

In this case, however, the charged acts and the subsequent acts were alleged to have occurred as part of a continuum that lasted to the end of 1988 and otherwise in the context of a teacher/pupil relationship. As the Crown submitted, therefore, evidence of the relationship after December 1986 made it more likely that the relationship existed before that time and it offered a better informed understanding of what the relationship had been at the relevant time. Beserick and cases like it are distinguishable on that basis. Beserick shows that where propensity evidence is of an isolated instance or instances of sexual activity, the activity will need to be relatively close in time to the charged acts in order to be admissible. Otherwise, its probative value is likely to be perceived as insufficient to transcend its merely prejudicial effect[25] and, ordinarily, it should be excluded. It may also be, although it is unnecessary to decide, that isolated subsequent events must be closer in time to charged acts than is required in the case of previous events. Beserick suggests that it is so, and possibly that view of the matter is grounded in the notion that there is more risk of a so-called “subsequent event” being in truth the first instance of sexual activity than of a so-called “previous event” being in truth the last.[26] But where, as here, the evidence is of a continuous homogeneous sexual relationship, evidence of a considerably larger part of the relationship is likely to be sufficiently probative to transcend the prejudicial effects of the evidence. Logically, the homogeneity of the relationship implies that sexual activity occurring at one point in the relationship repeats or is repeated by conduct occurring at other points in the relationship and again that will be particularly so when the sexual relationship occurs in a continuous underlying relationship such as a parent/child or teacher/pupil relationship. To adopt and adapt the words which Thomas, J. used in R. v. TJW, in such cases involving sexual activity between two persons the whole history of their sexual relationship may be relevant. [27]
[25]cf. Harriman v. The Queen (1989) 167 C.L.R. 590 at 633, per McHugh, J.
[26]cf. S. v. The Queen (1991) 5 W.A.R. 391 at 410
[27]cf. R. v. Bradley (1989) 41 A. Crim. R. 297 at 303; R. v. Kemp [1997] 1 Qd. R. 383 at 398.

In our opinion the whole history of the sexual relationship was relevant. The evidence was that the relationship began early in 1985, when F was only fourteen years of age, and continued unbroken in the same form until late in 1988 or early in 1989. The Crown case was that the charged offences occurred as part of that sexual relationship. Consequently, evidence of the relationship up to the end of 1986 explained the context in which the alleged offences occurred. Proof of the continuation of the relationship after December 1986 also said something about the context in which the alleged offences occurred - admittedly less, because it was more remote in time – but still something significant. Logically, the consistency and continuous nature of the relationship meant that what was shown of its form and substance in 1987 and 1988 was demonstrative of its form and substance in 1985 and 1986. Therefore it was evidence which made it more likely that the offences occurred. The fact that the relationship was still in existence in 1987 and 1988 also made it more likely that the relationship was in existence before December 1986.

"The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary."[47]

[46](2001) 208 C.L.R. 343

[47](above) at 357 [54]

Kirby, J. stated:

"The giving of a Longman warning is not rendered unnecessary simply because the prosecution's case is strong, or because there are admissions by the accused or some other evidence confirming a complainant's accusations. To reason in that way would be to ignore the particular forensic dangers which Longman identified. If, notwithstanding the strength of the prosecution case, the existence of admissions and the presence of evidence confirming that of the complainant, it is still possible that the jury may have reached their conclusion, wholly or mainly reliant on acceptance of the complainant's testimony without benefit of the Longman considerations, the requirements stated in Longman will not have been complied with. To the extent that the jury's reasoning could take them down such a path, the result may (as in Longman) be a trial that is unfair, and a conviction that is unsafe, in the relevant sense."[48]

[48](above) at 380 [138]

In our view the present case cannot be regarded as resulting in circumstances equivalent to those which arose in Doggett. The case with which we are concerned is one in which the jury was quite clearly given a Longman warning to the effect that it would be dangerous to convict on the basis of the uncorroborated evidence of the complainant. This warning met the possibility identified by Kirby, J. that the jury may have reached their conclusions wholly or mainly reliant on acceptance of the complainant's testimony without benefit of the Longman considerations. The learned trial judge did not omit a Longman warning but correctly identified the need to respond fully to the matters with which Longman deals.

It remains to consider whether the precise terms of the directions given in the present case were adequate and in particular whether the underlying evidentiary sensitivities and potential for error resulting from delay were adequately brought to the jury's attention as material considerations, even if they were of the view that the Crown case was supported by evidence other than that of the complainant alone. In our view it is clear that his Honour did identify the relevant underlying evidentiary sensitivities and potential dangers for the jury in a manner which made clear they were relevant even if the jury were satisfied the complainant's evidence was materially corroborated.

As was explained in R. v. DCC[49], the test is whether the jury were made to understand that a direction concerning the dangers and difficulties which delay caused to the defence still applied even if they were to find there was confirmatory evidence for the complainant's account[50]. We are satisfied his Honour's directions would have achieved that outcome.
[49][2004] VSCA 230
[50](above) at [65] per Eames, J.A. with whom Callaway and Nettle, JJ.A. relevantly agreed.

Furthermore, the fact that no exception was taken at trial to the directions now criticised tends to confirm our impression that his Honour was in fact very fair in the manner in which he identified and elaborated the relevance of considerations of delay for the jury. It is another indication that his Honour's charge was "sufficient to ensure a fair trial for the applicant in the particular circumstances of the case."[51]
[51]R. v. FVK [2002] VSCA 225 [129] per Phillips, C.J.

Counsel for the applicant submitted that no adequate direction was given in terms of the principles stated by Barwick, C.J. in Kilby v. R.[52] concerning the potential relevance of a failure to make an early complaint with respect to sexual offences. It was further said that the learned trial judge failed to avoid prejudice to the applicant's fair trial in the terms of a redirection given by him.
[52](1973) 129 C.L.R. 460 at 465

As to the first submission it is sufficient to recall that his Honour made clear to the jury that in his view there was no evidence of early complaint in the present case and that he concluded his directions as to the lack of evidence of complaint as follows:

"Delay in complaining does not necessarily indicate that a complainant's allegation is false. Obviously there are cases in which the relationship of the parties or the personality of the victim make it less likely or more likely that a complaint would have been made or would have been delayed. It is for you to say in a particular case whether [in] all the circumstances, the presence, or it may be the absence, of a timely complaint does constitute behaviour consistent or inconsistent with the happening of the offence."

In our view there was no defect in this direction. His Honour gave the direction in the terms that he did because the Crown countered the absence of early complaint by explaining that this was a case of a continuing consensual relationship, albeit an improper one, in which the complainant actively participated during the period of the charged acts.

Insofar as objection is now taken to the redirection given by his Honour with respect to the evidence of lack of complaint, that redirection went no further than to give effect to s.61(1)(b) of the Crimes Act 1958. Once again there was no defect in it.

Ground 1 and 13

As can be observed in the extract from his Honour’s charge to the jury, set out earlier, the trial judge instructed them that it would be “dangerous to convict the accused on the uncorroborated evidence of the complainant”.

He defined corroboration, employing the conventional formulation, as

“evidence from an independent source which tends to confirm the unreliable evidence in a material particular by tending to show that the crime has been committed and the accused committed it.”

And then said:
“ [I]n this case, there is evidence which I direct you, as a matter of law, is capable of corroboration and it is for you to say whether you accept it and for you to say whether you regard it as being corroborative in fact.
“Now, that evidence is. I mentioned it quickly as I went through the evidence. Firstly, Exhibit C, the surprise party invitation. Independent evidence. A matter for you whether you accept it and whether it supports [F].
“Secondly, the evidence of [B] when she gave evidence that she saw, in the accused’s office at Wesley [F] straddling the accused’s lap in the manner she described, as if she was having sex, and that occurred, she said, Year 10 or 11.
“Thirdly, [U], … gave potentially corroborative evidence when she told you of what may be said to be the flirty conduct, the familiar touching, that went on between [F] and the accused at school, and I refer also to the evidence she gave about the gathering at her apartment in …, South Yarra, and her description of what went on there.
“Fourthly, I refer to the evidence of [P], when she told of Hopper’s nocturnal arrivals to pick up [F] when [F] was staying at her house and also when she was staying at [F]’s. Also potentially corroborative is her evidence of what she saw of their interrelationship, the body language, the eye contact, et cetera.
“Fifthly, the evidence [of] [B]. In her evidence, she told of talk between [F] and the accused that contained sexual innuendo, including one conversation in the presence of [W]. She also described body language between Hopper and [F] that was not consistent, you may think, with a mere teacher/student relationship. Also potentially corroborative in her evidence is evidence of the phone call between her and the complainant, during which the accused came on the line, demonstrating that he and [F] were together at the time. Also there is the evidence of the admission Mr Hopper made, she said, about the relationship when she confronted him about his intentions towards [F] in 1988.
“Sixth. I refer to the evidence of the witness [T] who said she saw the incident where [F] was straddling the accused in the gymnasium in the manner she described.
“Seven. The evidence of [C], who said she heard Mr Hopper talking to [H] about looking forward to [F] turning 16, when she would be legal.
“Eight. Also potentially corroborative is the evidence of [A], [P]’s mother, who told of what she saw of Hopper and [F] in the pool. The hugging, embracing, the diving between the legs, et cetera.
“Ninth and lastly. The evidence of [D]. She told of the flirting she described as a bit suss and of occasions in the accused’s office. On one occasion, she described touching and familiarity, and, on another, she said she saw [F] get off the accused’s lap with a smile. She also told of a picnic in the park with a physical inter reaction between the two of them in the presence of [W].”

The contention has been advanced under this ground that none of the matters listed was capable of providing corroboration to the complainant in the circumstances.

With regard to the “surprise party invitation”, counsel argued that there was no dispute that it had come into the possession of F, but a real question arose as to whether it was given to her. The resolution of that issue depended, it was said, upon whether the evidence of F was accepted. The existence and her possession of the invitation could not provide support for her central claim that it had been extended to her and could not be seen, therefore, as independent evidence capable of supporting her version.

This submission fails to address the most powerful source of support for F’s evidence on this aspect, namely, the applicant himself. He provided an explanation for the existence and content of the invitation which was shown not only to be untrue but was exposed in a fashion that his counsel, in this Court, described as “devastating” to his credit. The jury were entitled to have regard to all of the circumstances bearing upon the existence, content and possession of the invitation in determining whether it provided support for the complainant’s evidence. His Honour did not fall into error in putting it before the jury as one of the pieces of evidence capable of providing such support.

The argument advanced in this Court was that none of the second to fifth pieces of evidence, referred to in this direction, was capable of providing corroboration of the complainant’s version. This was based upon the proposition that, as almost all of the observations made by the witnesses related to a period outside that covered by the presentment, they could not support her claims as to what happened within it.

This contention is misconceived and ignores the nature and purpose of corroborative evidence in cases of this kind. It is accepted that, in some circumstances, for a number of good reasons, not necessarily apparent to a jury, the evidence of a particular witness or complainant, may be sufficiently potentially unreliable that the jury must be instructed that the greatest possible care is required before a verdict of guilty, based upon it, can be returned. In such cases, the jury is directed that it is dangerous to act upon the evidence in the absence of corroboration, although they may do so, if nevertheless after careful scrutiny and bearing in mind its source, they are satisfied, beyond reasonable doubt, that it is reliable.

“The essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable.’: Reg. v. Kilbourne … per Lord Simon of Glaisdale. ”[53] (citations omitted)

[53]See Doney v. The Queen (1990) 171 C.L.R. 207 at 211 per Deane, Dawson, Toohey, Gaudron and McHugh, JJ.

The need for instruction concerning corroborative evidence in the present case was put by his Honour to the jury as follows:

“The circumstances, such as I have adverted to, that is the delay and the nature of the allegations and the age of the complainant at the time and the problems of faulty recollection, the absence of complaint, if you consider there was a delay over all those years before it came before the authorities’ notice might be thought to point to the potential for error, which is inherent in evidence of this nature.”

It is not to the point, that the evidence of these various witnesses related substantially to their observations after F had attained the age of 16 years and therefore outside the period covered by the presentment, but rather whether it was capable of supporting the accuracy and reliability of her evidence considered in the context of the issues in the trial.

For reasons discussed in relation to ground 2, we think that it was and that his Honour did not fall into error in this respect.

The complaint that the evidence of C, concerning an overheard conversation between the applicant and another teacher (Item 7), should not have been used as possibly corroborative evidence on the ground that its prejudicial impact outweighed its probative value, is one properly directed to its admission in the first place and not to its use as evidence capable of corroborating that of F’s. Whichever way the matter is approached, there is no substance to this complaint. It indicated that the applicant had a strong sexual interest and, taken at face value, that he was prepared to breach his responsibility as a teacher as soon as she attained the age of 16 years. Nor is there any force in the submission concerning the two remaining items (Items 8 and 9). The evidence in one case was asserted to be unreliable, as to date and time, and the other vague as to whether the observation was made within the period covered by the presentment. The complaint, with respect to item 8, raises an issue concerning the weight to be attributed to the evidence rather than its use as corroboration and in relation to item 9 similar considerations are presented to those earlier addressed, when dealing with items 2 to 5.

Ground 14

The argument was advanced that, in relation to evidence given by a number of witnesses, of observations of separate incidents of sexual activity involving F and the applicant, an identification warning in accordance with Domican v. R.[54] should have been provided to the jury.
[54](1992) 173 C.L.R. 555.

There are two points which can be made about this submission. First, it was not disputed that all of the witnesses concerned were sufficiently well acquainted with both F and the applicant to be able to recognise them given a reasonable opportunity for observation. The case did not raise the question of identity as such, but whether, given the circumstances, an error in recognition of someone known to the observer was made. No argument has been advanced that that issue was not properly before the jury. Second, and understandably in that situation, no full Domican instruction was sought by counsel at the trial and none was required.

Grounds 16 and 18

In the course of delivering his Charge to the jury, his Honour said in relation to the prosecution contention concerning the surprise party invitation,

“In this case the Crown asks you – I will go on for a few minutes is that all right ladies and gentlemen – in this case the Crown asks you to infer the guilt of the accused from some of his answers to questions put to him in the course of a trial, and they relate to two matters, and they are these.
The question of when the accused man told you exhibit C was written, surprise party invitation 1981 or 1985 or six.
Secondly; to whom exhibit C was given. Karen Hopper? Or [F]?
As to each of those matters the Crown says that the accused told lies when answering [the prosecutor]’s questions, and that his reason for lying was his knowledge, the consciousness of his guilt of the crime or crimes with which he stands charged in this case. I will give you the following directions about that argument by the Crown. You may infer that the accused entertained a consciousness of his own guilt of the crime, if, but only if, you are satisfied beyond reasonable doubt that the statements were lies, that they were not only untrue but that the accused knew at the time he made them that they were untrue.
Further, also that the only reasonable explanation that the accused did tell lies was his consciousness of guilt of these crimes or some of them, not because of some other wrongdoing or because of some other reason to lie about the matter. Were you satisfied beyond reasonable doubt that the accused did tell lies in this way, and did so because of the consciousness of his guilt of the crime, you could use that consciousness of guilt as evidence of actual guilt, and use it against him.”

After the jury retired to deliberate, the prosecutor expressed uncertainty as to whether the judge had provided instruction with respect to the possibility that there could be other explanations for deliberately making a false statement other than consciousness of guilt of the crime charged. He informed his Honour that he was aware that no objection had been taken to the instructions given to the jury concerning consciousness of guilt but considered that he should draw this possible deficiency to his attention and to that of counsel for the applicant. His Honour, in response, further instructed the jury:

“Do you remember I said you may infer that the accused entertained a consciousness of his guilt and in certain circumstances if you find he lied you could use that against him in (indistinct) probative of his guilt. I did say that you had to consider whether or not he told a lie and then you also, if you found that he had, look at the question, to consider whether or not the only reasonable explanation that he did lie was a consciousness of his guilt and trying to avoid the consequence of that.
But of course, I said that you have got to look to see if it is that or the alternative. Whether or not he lied because of some other wrongdoing or some other reason to lie about the matter. There could well be other reasons for a person to lie, of course, other than consciousness of guilt. I mean, I don’t know, but it could be panic, wanting to get away from the police or it might even be that he wanted to hide certain matters from his wife. Who knows. But I simply point out to you that simply to find that he had lied is not enough. You have also to be satisfied if you find he lied, that he did so because of the consciousness of his own guilt of the crimes with which he is charged.”

After they retired to resume their deliberations he enquired of counsel whether there was any objection taken to the additional instructions. However there was none.

It was hardly surprising in the circumstances that counsel appearing for the applicant at the trial was content with the direction in the form given by the judge. His client had denied that he had ever been involved in a sexual relationship with the complainant. For obvious reasons, the production by her of the surprise party invitation presented a problem. The applicant, in evidence-in-chief, attempted to deal with it by saying that the second anniversary to be celebrated was that of his marriage of his wife and himself. That meant that the invitation had to have come into existence in 1981. It became clear through the reference to the drink, “Island Cooler”, that that was not the case and that the invitation must have been written after April 1985. The complainant had said that it was given to her at some time around 1985 or 1986. We suspect that his counsel adopted the view that the less said about this topic, the better it would be for his client. Certainly he would not have wanted the trial judge to provide more elaborate instructions that could only have served to emphasize the significance of the invitation and increase the impact of the cross-examination concerning the drink, Island Cooler.

In any event, although the judge’s instructions were brief, he adverted sufficiently, in the particular circumstances of the case, to the possible motivations of the applicant to lie about the matter. There was nothing advanced before us that could have been expected to be included or would not have been apparent to a reasonably perceptive jury in any event. We do not consider that the brevity of those instructions gives rise to a reasonable possibility of a miscarriage of justice in this case.

Conclusion

All of the grounds having failed for the reasons set out above, it follows that this application must be dismissed.

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[2005] VSCA 214

31 August 2005