R v Thompson

[1996] QCA 468

[1996] QCA 468

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 116 of 1996

Brisbane

BeforeFitzgerald P.

Moynihan J.
MacKenzie J.

[R. v. T]

THE QUEEN

v.

T

Appellant

Fitzgerald P.

Moynihan J.

Mackenzie J.

Judgment delivered 22 November 1996

Reason for Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:     CONVICTION - unlawfully maintaining a sexual relationship - circumstance of aggravation - whether trial judge erred in refusing an application at trial for further and better particulars of the material count against the appellant - degree of specificity required to be alleged by the prosecution - whether the trial judge misdirected the jury - appellant failed to apply for redirections at trial - whether a substantial miscarriage of justice resulted.

SENTENCE - whether manifestly excessive - no attempt to argue that proposition at the hearing of the appeal.

Criminal Code, ss. 210(1)(a), 210(2), 229 (1A) , 229(1B), 229B

Giretti and Giretti (1986) 24 A.Crim.R. 112

Hamzy (1994) 74 A.Crim.R. 341
Johnson v. Miller (1937) 59 C.L.R. 467
K (C.A. 82 of 1995, unreported, 29 August 1995)
Montgomery v. Stewart (1967) 116 C.L.R. 220
S. v. R. (1989) 168 C.L.R. 266
The Director of Public Prosecution (Victoria) v. His Honour Judge G.D. Lewis of the County Court of Victoria (Vic. C.A. 4148 of 1996)
Walsh v. Tattersall (1996) 139 A.L.R. 27

Counsel:Mr A. Boe, Solicitor, for the appellant.

Mr P. Rdigway for the respondent.

Solicitors:Boe & Callaghan for the appellant.

Queensland Director of Public Prosecutions for the respondent.

Hearing Dates:           10 and 17 October 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22 November 1996

On 14 March 1996, the appellant was convicted in the District Court at Maroochydore of one offence of indecent dealing with a girl under the age of 14 years between February and April 1988, one offence of indecent assault on a female between June and July 1991, and one offence of unlawfully maintaining a sexual relationship involving indecent dealing with a child under 16 during an intervening period which extended from July 1989 to January 1991.  He has appealed against his convictions, but his grounds of appeal are confined to the offence of unlawfully maintaining a sexual relationship.  Although the appellant has also applied for leave to appeal against the sentences imposed on him when he was convicted on the ground that his sentences were manifestly excessive, no attempt was made to advance that proposition by argument.  The complainant had been raised as the daughter of the appellant and his wife from the time when she was aged about two years, and the sentences, concurrent terms of imprisonment for one year in respect of each of the offences of indecent dealing and indecent assault and three years for the offence of unlawfully maintaining a sexual relationship, were plainly not beyond the range of a sound sentencing discretion.  Accordingly, the application for leave to appeal against sentence should be refused.

Maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years is made a crime by sub-s. 229B(1) of the Criminal Code.  Whether or not it might in at least some cases need to do more in order to establish such an offence, the prosecution must show that the accused, as an adult, did an act constituting an offence of a sexual nature (with certain exceptions which are not presently material) in relation to the child on three or more occasions during the material period: sub-s. 229(1A).[1]  By the same sub-section, evidence of the doing of an act constituting an offence of a sexual nature in relation to the child is “admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions”.

[1]Because the indictment against the appellant alleges that, in the course of the relationship, he indecently dealt with the complainant while she was under his care, he was liable to a higher maximum penalty: sub-ss. 210(1)(a) and (2), 229B(1) and (1B).

The prosecution case against the appellant consisted of the evidence of the complainant, who gave evidence of many instances of sexual touching by the appellant.  As summarised by the prosecution, the complainant’s evidence was that the sexual misconduct occurred while she and the appellant and his wife were living on a tropical fruit farm at Woombye.  The first incident occurred a few weeks before the complainant’s thirteenth birthday; when she and the appellant were in a shed on the property, with him leaning on a motorbike and her leaning against him with her back to him, he fondled her pubic area on the outside of the sports shorts she was wearing.  Subsequently, throughout her thirteenth, fourteenth and fifteenth years, incidents occurred at various times and locations as follows:

(a)When she was driving their four-wheel motor bike, he would sit behind and stroke her pubic area inside her pants and sometimes he would stroke her breasts;

(b)When resting in the afternoon after working, he would put his hands in her pants and put his finger inside her vagina and play with her breasts;

(c)When they were picking fruit, he would grab her bottom or breast;

(d)When the appellant’s wife had gone back to work after morning tea, he would take the complainant onto his lap and fondle her breasts and genitals under and over her clothes and put his finger inside her vagina;

(e)In her bedroom of a morning, he would cuddle the complainant and touch and stroke her, and place his finger in her vagina; and

(f)In the evenings, while watching television, with his wife present, he would take the complainant onto his lap, cover them with a blanket, fondle her, and place his finger inside her vagina.

The appellant gave evidence denying the complainant’s allegations.

Prior to trial, the appellant was provided with a copy of the complainant’s statement, which it was accepted disclosed the evidence which she gave at the trial.  However, at the trial, counsel for the appellant requested further and better particulars of the material count against the appellant, and before this Court it was submitted that the trial judge erred in refusing the application.

It was also submitted that the trial judge misdirected the jury.  Although his Honour told the jury that the complainant’s was the “essential evidence”, his directions did not refer at all to the possibility that they might unreservedly accept some of her evidence but have a doubt concerning the credibility or reliability of other parts of her evidence.  Although no material complaint was made at trial in relation to the trial judge’s summing up, the appellant in this Court submitted that different jurors might have accepted, or doubted, different parts of the complainant’s evidence, and that there might not have been unanimous agreement by the jurors that any three particular acts each constituting an offence of a sexual nature occurred or that any particular act constituted indecent dealing.  It was argued that the trial judge was required to instruct the jurors that they must be unanimously satisfied beyond reasonable doubt that the same three acts constituting an offence of a sexual nature occurred, and that one of those acts, agreed on by the jury, constituted indecent dealing with the complainant.[2]

[2]It is difficult to see that the latter point adds anything in the present case, since each of the acts alleged against the appellant would have constituted indecent dealing.

The prosecution submitted that further specificity was not possible in the present case and that, “[w]here specificity is not possible” in relation to an alleged offence against s. 229B, “the jury should be instructed that they may convict an accused” if satisfied that -

“(i)... behaviour of the pattern described by the complainant occurred at least three times in the course of the relationship and involve an act of the requisite offending character; or

(ii)where there are different patterns of behaviour, and it is necessary to go beyond one such pattern in order to find the requisite minimum, they have to be satisfied that those types of behaviour to which they turn to meet the requirement of the section occurred and that in aggregate, they are satisfied that the accused person committed offending acts on at least three occasions,

...Where a circumstance of aggravation is charged and the act alleged is specified, they must be satisfied as to the particular act; but

...Where the circumstance of aggravation relies upon proof of a pattern or description of persistent behaviour, the jury must be satisfied that the pattern of behaviour is established on the evidence to the requisite degree and that the pattern conforms to the elements of the offence alleged in the circumstance of aggravation.”

Our attention was drawn by the prosecution to decisions which, it was submitted, establish that, subject to the discretionary control of the trial judge, evidence of the history of the sexual relationship between a complainant and an accused may be admitted as relevant. However, that is of no present significance; this appeal is concerned with what the prosecution must allege, and what the jury must find, and hence how it should be directed, before an accused can be convicted of an offence against s. 229B.

It was also submitted by the prosecution that the appellant’s argument, if successful, would present a “formidable obstacle” to achieving a conviction for an offence against sub-s. 229B(1).  There are a number of answers to such a submission.  The code is a penal statute, and required to be construed accordingly; the authorities give no support to a proposition that a statutory provision creating an offence should be given a construction which it would not otherwise bear so as to facilitate the task of the prosecution.  Secondly, the requirement of specificity in allegations made against accused persons has long been accepted as an integral requirement of the criminal justice system, as essential to the protection of an accused; there is no justification for departing from such entrenched principle, so recently reaffirmed by the High Court in Walsh v. Tattersall (1996) 139 A.L.R. 27 to a greater extent than is provided for by material statutory provision.

In our opinion, it is necessary that three different situations be distinguished.  The first concerns an offence which is constituted by a single occurrence when a number of relevant occurrences are alleged; the majority held that Walsh was such a case.  Another concerns offences defined in terms of a course of conduct; the distinction was recognised in Walsh in the joint judgment of Dawson and Toohey JJ.,[3] and by Gaudron and Gummow JJ.[4] who, with Kirby J., comprised the majority. Section 229B provides for an offence of an intermediate character, the definition of which refers to a specified number (three) individual occurrences. Reference has been made to the provision in sub-s. 229B(1A) that evidence of the doing of an act constituting an offence of a sexual nature in relation to the child “is admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions”. It merits emphasis that the words quoted concern proof only “of the maintenance of the relationship” and require, for that purpose “evidence of the doing of [an] act” (i) “defined to constitute an offence of a sexual nature” (ii) “on three or more occasions”. The provision that certain evidence is “admissible and probative”, i.e., probative if admitted, does not derogate from the obligation of the prosecution to prove each element of the offence charged beyond reasonable doubt or the right of an accused person to a fair trial.[5] In our opinion, subject to the express provision with respect to evidence made by sub-s. 229B(1A), and any necessary implication concerning associated particularity with respect to a charge alleging an offence against s. 229B which is to be derived from that sub-section, there is no reason why orthodox principles, including those relating to evidence and particularity, should not apply in relation to such an offence.

[3]Dawson and Toohey JJ. referred to Giretti and Giretti (1986) 24 A.Crim.R. 112; R. v. Locchi (1991) 22 N.S.W.L.R. 309; Hamzy (1994) 74 A.Crim.R. 341.

[4]Gaudron and Gummow JJ. referred to Loftus v. Woodworth (1936) V.L.R. 279.

[5]K (C.A. 82 of 1995, unreported, 29 August 1995).

Reliance was placed by the prosecution upon the recent decision of the Victorian Court of Appeal in The Director of Public Prosecutions (Victoria) v. His Honour Judge G.D. Lewis of the County Court of Victoria (Vic. C.A. 4148 of 1996, unreported, 16 August 1996).  In that case, it was held that a County Court Judge had erred in staying some of a number of charges alleging sexual offences by an accused person against his daughter on the ground that they were insufficiently particularised and, by reason of latent ambiguity or duplicity in those counts, the accused could not  be tried fairly.  S. v. R. (1989) 168 C.L.R. 266 and Johnson v. Miller (1937) 59 C.L.R. 467 were both distinguished on the basis that the prosecution in the subject case had sufficiently identified the occasion to which each count which was stayed related by indicating that “the subject matter of the charge is comprehended by the first instance within the stated time period of conduct of the kind particularised”; by this course, it was held, “the Crown ‘has tied the complaint down to one instance’, making it incapable of equal application to other instances”. It is unnecessary to consider that further, since the prosecution did not take any such course in the present case.[6]  What is more important for present purposes is that DPP v. His Honour Judge Lewis not only accepted the authority of S. and Johnson - as the Court was obliged to do - but cited with approval Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656, 669 per Gleeson C.J. and Byrne v. Garrison (1965) V.R. 523, 539 per Gowans J. Passages quoted from the latter two cases and the judgment of Dixon J. in Johnson at pp. 489-490 were held to “confirm that what a defendant is entitled to have by way of definition of a charge he is required to face is that the transaction relied on be ‘identified and distinguished from any other’ ”. We can find nothing in DPP v. His Honour Judge Lewis which is of assistance to the prosecution in the present matter.

[6]In Director of Public Prosecutions v. His Honour Judge Lewis, the judgment expressly did not decide that particulars such as those there given would always be sufficient.

In Walsh, which was decided after DPP v. His Honour Judge Lewis, an appeal against a conviction for obtaining payments or benefits by dishonest means was allowed because the charge was bad for duplicity.  A point of fundamental difference between the majority and the minority concerned the construction of the statutory provision which created the offence; the minority thought that a course of conduct involving the unlawful receipt of multiple payments and benefits could constitute a single offence, whereas the majority held that each unlawful receipt of a payment or benefit was a separate offence.  It is unnecessary to pursue that issue in this case.  What is presently important is the acceptance in Walsh that “elementary fairness” requires that a defendant know “what it is of which he has been charged or found guilty ... so that he has the opportunity of making a no case submission or a sensible plea in mitigation”, to quote from the dissenting judgment of Dawson and Toohey JJ.  Their Honours, who, as stated, considered that a course of conduct could constitute a single offence against the statutory provision there material, also said that the appellant “might have called upon the prosecution to specify with particularity when and in what circumstance he obtained by dishonest means” the total payments and benefits which he allegedly received.  Later, after reference to the judgment of Dixon J. in Johnson at p. 489 and pointing out that Barwick C.J. had observed in Montgomery v. Stewart (1967) 116 C.L.R. 220, 224 that the majority in Johnson accepted the view “that the relevant statutory provision created a separate offence” in respect of each occurrence, their Honours referred to the position when it was “legitimate to bring a single charge” in respect of a course of conduct - instancing drug trafficking - and made clear that particulars are called for; it was said that “the practice of laying charges of a compendious kind can place an accused in a position of difficulty”, although “[i]n most cases the uncertainty can be dispelled by further and better particulars”.  Later, their Honours added:

“With a compendious charge, various issues might arise, such as whether the prosecution is statute barred, which are more difficult of resolution.”

After holding that the statute there in question was concerned with individual payments, Kirby J. said:

“... Offences must therefore be charged individually.  In that way the Court's attention is addressed to the specificity of each offence, avoiding any temptation, upon finding dishonesty in one payment, to infer dishonesty in all.  Only by such precision will the accused, and those representing the accused, know exactly what is being alleged and how the accused should plead. Similarly, such precision is necessary for proper rulings on the relevance of evidence given during the trial; upon conviction, the determination of the sentence appropriate to the offence; and the availability, should it become relevant, of pleas of autrefois acquit and autrefois convict [R. v. Surrey Justices; Ex parte Witherick [1932] 1 KB 450 at 452; cf Salhany, ‘Duplicity - Is the Rule Still Necessary?’ (1963) 6 Criminal Law Quarterly 205 at 207].

...

... there are special features of criminal procedure which continue to sustain the general tendency in favour of a rule of precision and specificity which has hitherto been enforced in this branch of the law.  The reasons have been given many times, including in this Court.  In Johnson v Miller [(1937) 59 CLR 467], Evatt J gave a classic exposition [(1937) 59 CLR 467 at 497-498]:

‘It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him.  This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character.  But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction.  It is inherent because it is an essential and integral part of any system of administering justice according to law.  For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts.  Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection.  These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged.  Indeed the matter arises at an even earlier stage.  The defendant cannot plead unless he knows what is the precise charge being preferred against him.  If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.’

More recently, and after Merriman[7] was decided in the House of Lords, the same strict rule was followed in this Court in S v The Queen [(1989) 168 CLR 266].  Gaudron and McHugh JJ explained why [(1989) 168 CLR 266 at 284]:

‘The rule against duplicitous counts in an indictment originated as early as the seventeenth century ... It may be ... that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death.  However, the rule against duplicitous counts has, for a very long time, rested on other considerations.  One important consideration is the orderly administration of criminal justice.  There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record  must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict ...

The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.’

[7]DPP v. Merriman [1973] A.C. 584.

...

... Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity.  Such offences as keeping a brothel, required proof of particular acts at different times.  Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count.  Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment [Daly v Medwell (1986) 40 SASR 281; cf Timms v Van Diemen [1968] SASR 379 at 385-386; Romeyko v Samuels (1972) 2 SASR 529; Lafitte v Samuels (1972) 3 SASR 1] and trafficking in drugs [Giretti and Giretti (1986) 24 A Crim R 112; R. v. Locchi (1991) 22 NSWLR 309 at 312; R v Goodfellow (1994) 33 NSWLR 308].  Obviously, nice questions arise as to whether individual acts of supply of prohibited drugs create the same, or substantially the same, offence so as to sustain a single count and to resist an allegation of duplicity [Hamzy (1994) 74 A Crim R 341 at 348]. ...

...

The policy of precision in criminal pleading

With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges.  A strict approach has been consistently applied by this Court from Johnson v Miller [(1937) 59 CLR 467] through Iannella v French [(1968) 119 CLR 84] and up to S v The Queen [(1989) 168 CLR 266], the latter having been decided in 1989.  Quite apart from the consistent application of the authority of this Court, there are reasons of legal principle or policy which favour the approach of this Court and which resist the approach which has apparently found favour in England and New Zealand.  These reasons are:

1.Compliance with the rule of strictness is a correct practice to require of prosecutors.  It obliges them, at the outset of criminal proceedings, to define with accuracy each criminal offence which they intend to prosecute and to identify, in respect of each, the elements of the offence necessary to secure a conviction.

2.The rule of strictness is also desirable for the fair trial of the accused, basically for the reasons identified long ago in Johnson v Miller [(1937) 59 CLR 467] and restated in S v The Queen [(1989) 168 CLR 266].  The rule helps to address the attention of the accused (and any legal representative the accused may have) to the elements of each alleged offence.  It assists in decisions about how to plead.  It clarifies contested questions about the admissibility of evidence relevant to the offences so specified.  It contributes to accurate sentencing where a conviction is recorded upon those offences.  It also avoids later problems with respect to pleas of autrefois acquit or autrefois convict.

3.Unless a tight rein is kept upon the prosecution practice of rolling up allegedly connected events and presenting them under a single charge, much prejudice can be done to an accused person by the admission of evidence of a generally inculpatory character which would not be allowed under the similar fact rule of evidence and if the rule of specificity of pleading criminal charges continued to be insisted upon.  Nowhere is this risk more evident than in cases of alleged sexual misconduct as illustrated by S v The Queen [(1989) 168 CLR 266].  But it is also a risk present in cases such as Weinel v Fedcheshen [(1995) 65 SASR 156], this case and perhaps others.

... .”

The appellant’s other point, relating to the trial judge’s directions to the jury, has been discussed in earlier cases in the context of drug trafficking.  The joint judgment of Dawson and Toohey JJ. and the judgment of Kirby J. in Walsh, both referred to Giretti,[8] in which the appellants appealed unsuccessfully against their convictions for trafficking in heroin.  One of the rulings by the trial judge which was challenged was that, while one isolated transaction might constitute trafficking, a single offence of trafficking could also “be constituted by numerous transactions extending over a period of time”.[9]  At p. 117,  Crockett J. said:

[8]See also Pektas (Vic.C.C.A. 193 of 1989 and 43 and 74 of 1990, unreported, 18 October 1990); Allen (Vic.C.A. 89 of 1995, unreported, 14 December 1995); Go v. R. (1990) 73 N.T.R. 1.

[9]See (1986) 24 A.Crim.R. at pp. 116, 130.

“The first question to be considered is how is the charge pleaded or, if that sheds no light on the matter, what is the evidentiary case upon which the prosecution relies?: Greenfield [1973] 1 WLR 1151; (1973) 57 Cr App R 849. If the case being advanced is that a business was being carried on, that is that it was a continuing offence, then that is what must be proved to establish the single offence charged in the count. It is not proper to plead a number of individual acts of trafficking (perhaps because it is not possible to match each to a particular date or approximate date) on the basis that the jury can find at least one offence committed during the stated period; still less that different jurors might be satisfied as to different acts of trafficking so long as they were all satisfied as to at least one. If the prosecution were to seek to plead the case in such a manner it should be called upon to elect, (see Trotter, Parker and Ballysingh),[10] or to amend the presentment so as to confine each illegal act alleged to its own count.  This is altogether different from the permissibility of a jury by a different process of reasoning among its members or by finding different combinations of components each of which will establish the offence reaching a verdict of guilty in respect of the one incriminating act alleged: cf Clarke and Johnstone [1986] VR 643; (1986) 21 A Crim R 135.”

[10]Trotter (1982) 7 A.Crim.R. 8; Parker (1983) 8 A.Crim.R. 324 and Ballysingh (1953) 37 Cr.App.R. 28.

Gray J. agreed with both Crockett J. and the third member of the Court, Ormiston J., insofar as they were in agreement, and added observations of this own at pp. 120-121.  It is unnecessary to record what was there stated.

At p. 128, Ormiston J. noted an argument for the appellants “that some of the jury might have accepted certain of the events as having been established, and others might have accepted other events as having been proved, but they would not in the end necessarily be unanimously satisfied that the count had been made out”.  Then, at pp. 134-136, his Honour said:

“For present purposes, it is also clear to my mind that the word ‘traffick’ in ss 70‑71 comprehends the carrying on of a trade or business in dealing in drugs or, at the least, a commercial activity in relation to the transmission of drugs from source to consumer. It further follows, consistently with what I have said earlier, that trafficking may be alleged as a continuing offence.  It does not follow that it may be established merely by proving a series of individual transactions by way of trafficking, for again it is necessary that the jury draw an inference as to the conduct of a trade or commercial activity in drugs over the alleged period.

It follows that each of the counts 2, 3 and 5 was correct in form and that the prosecution was entitled to allege that the accused had been guilty of trafficking over the periods alleged in each count.  To say as much, however, does not mean that the Crown was entitled to go to the jury on each of those counts relying only on a series of specific transactions except as evidence in support of an allegation that a trade or business of dealing in drugs was carried on by the applicants over the alleged periods.  If the Crown case and the judge's charge had been consistently directed to answering the question whether the accused were guilty or not guilty of offences alleged in that manner, then there could have been no argument that the verdicts of guilty returned against each applicant were uncertain in any relevant way.  There would still have been problems for the judge in sentencing the applicants to determine the nature and extent of the trafficking established on each of those counts, but the problem would have been no greater than in many other cases and could have been worked out in accordance with established principle: cf Chamberlain [1983] 2 VR 511.

The difficulty in the present case, however, is that it is by no means clear that the jury were asked whether they were satisfied on each of those counts whether the accused were guilty of the continuous offence of trafficking by way of a trade in drugs over the alleged periods.  On the contrary, it was submitted that the jury were invited to reach their verdicts by reference to a number of transactions alleged to have been carried out by one or both of the accused over the periods referred to in the counts, but without being asked to draw any conclusion as to the overall nature of their activity during those periods.  Thus it was submitted that on each count, some members of the jury may have been satisfied as to particular transactions of trafficking, and others as to different acts of trafficking, and that there might, therefore, have been no unanimity as to the nature of the trafficking in the verdicts of guilty on counts 2, 3 and 5.  In particular, it was asserted in relation to count 5 that there were really only two events in the period from 27 April 1985 to 16 July 1985 which could amount to trafficking, in the first place, an allegation that the witness, Kim Mortensen, was supplied with heroin by the first‑named applicant on 13 May 1985, and secondly, an allegation that the witness, Gillian Dunstan, was supplied by him with drugs to sell in his car, in what has been called the tape recording incident in June or July 1985.  It was argued that some of the jury may have selected the first incident, and the rest the second incident, as establishing trafficking under the fifth count, which meant that there was uncertainty as to whether the jury were truly unanimous in their verdict on this count.  To this end, counsel relied on Trotter (1982) 7 A Crim R 8, especially at 17‑18. In relation to the earlier two counts (counts 2 and 3), there were many more alleged transactions, but it was argued that the vice in each of the verdicts was the same.

No such uncertainty would arise if the trial judge had correctly directed the jury as to the nature and elements of the counts of trafficking.  It is clear from his ruling that he regarded the counts for this purpose as alleging continuous offences, but it is by no means so clear what he meant by continuous offences, nor that he instructed the jury correctly as to the nature of those continuous offences.  It was unfortunate that counsel did not raise the questions themselves, for it is apparent that the trial judge both raised the difficulty and then found what he thought was the solution to it.  Although from time to time the prosecutor suggested that trafficking may be constituted by the carrying on of a business of dealing in drugs, there is no way of determining how he put that to the jury, and indeed other passages of the argument suggest that he was also relying upon proof simply of a number of trafficking incidents.  Moreover, although the learned trial judge, in the ruling given after the charge, referred on occasions to trafficking as a trade or business, his interim ruling given before the charge suggests that he accepted that the Crown could rely upon one or more incidents of trafficking, without, more as establishing the allegations in counts 2, 3 and 5.  ...

...

Unfortunately, in his charge to the jury, the significant difference between the two types of trafficking was not brought out, and so there remains a question whether the jury's verdict was uncertain, in the sense that members of the jury may have felt free to accept different acts of trafficking as establishing the offence alleged in counts 2, 3 and 5.  To ascertain this it is necessary to go to the judge's charge. ...”

At p. 139, his Honour continued:

“...  There is, therefore, in my opinion, nothing which would have warned the jury against accepting the evidence of one or other incident, as each of them thought most appropriate, to support the count of trafficking in the fifth count and certainly nothing which would have required them to consider whether the accused had been engaged on a continuous basis in the trade or commercial activity of dealing in drugs during that time. ...”

Then, at pp. 140-142, it was said:

“Having regard to what his Honour said to the jury during his charge, I have reached the conclusion that his directions as to the concept of trafficking under both Acts were wrong, not in the sense that he inaccurately described a number of concepts of trafficking under the legislation, but in the sense that he failed to give an appropriate definition of the elements of trafficking in the circumstances of this trial.  In particular, having correctly accepted that trafficking could be a continuous offence under each Act, he failed to describe what were the necessary matters to be proved to establish the elements of trafficking where a continuous offence was alleged.  He failed to describe adequately or at all the nature of ‘trafficking’ as a trade or business of dealing in drugs or as the participation in the commercial activity of transmitting drugs from source to consumer.  Of course, each of the alleged transactions of trafficking, whether by sale, purchase or delivery, could have been relied upon by the prosecution as sustaining a separate count of trafficking, whether under the 1962 or the 1981 Act.  But the prosecution did not choose to allege trafficking by way of single, specific incidents or transactions and instead chose to allege a continuous activity of trafficking over three stated periods.  If the prosecution had chosen to rely on the individual transactions, then it would have been obliged to elect under each count which incident or transaction it relied upon, but it was not asked to elect, for the very good reason that it asserted only a continuing offence during each period. It is not possible now to know precisely how the prosecutor sought to make out his case either in opening or in closing address, but it is apparent from the judge's charge that he invited the jury to reach a conclusion in relation to each count of trafficking by considering a series of individual transactions without asking them to draw a conclusion, by way of inference or otherwise, as to whether the Crown had established a continuing offence over each of the alleged periods.

There is no doubt that the judge gave the jury the customary direction as to the drawing of inferences, but in the present case it was the nature of the inference which had to be drawn which should have been explained to them.  A series of individual trafficking transactions does not establish the continuing offence, for it is necessary to characterise the continuing activity in a manner consistent with the proper meaning of the word ‘trafficking’.  It is not necessarily difficult to draw the inference that an accused is trafficking from proof of the large number of transactions which can be so described, especially if they are committed over a relatively short period, but it is another matter to leave it open to a jury to find a continuing offence from possibly only two or half a dozen or so transactions over periods which varied from three to sixteen months.  Again, it is possible that a jury might draw properly an inference that an accused is engaged in the trade or business of dealing in drugs using two isolated transactions, but it would be necessary for there to be some other evidence which would indicate that the accused was engaged in a continuous commercial activity over the alleged period.  I am not suggesting that it would be essential for the jury to be satisfied that the offence was committed precisely during the alleged dates, for, as I have said before, ordinarily such matters of time in a presentment are immaterial.  However, if the jury are being invited to reach a verdict in respect of a continuing activity over an extended period, for this purpose, at the least, they should be told that they should be satisfied that the alleged commercial activity of the accused extended over a period of time which broadly corresponds to the allegation, unless the Crown chose in the course of the trial to confine its allegation to a shorter period and was not required to amend the presentment.

Consequently, the jury should have been instructed as to how an inference could properly be drawn in the present case in relation to the continuous crime of trafficking in drugs.  If that had been done, then, consistently with authority, the members of the jury may have drawn that general inference in different ways and relying on different facts or circumstances, so long as in the end they were all satisfied beyond reasonable doubt that the accused were guilty of each of the continuous offences of trafficking over the alleged periods.

By defining ‘trafficking’ in terms of separate acts or transactions, such as the sale, purchase and delivery of drugs, and by omitting any direction as to how an inference might be drawn as to the carrying on of a trade or continuous activity of trafficking in drugs, the trial judge's charge contained the very vice raised by him and which the counts alleging continuous offences were designed to avoid.  The verdicts were uncertain because it is impossible to know from any of them whether the jury unanimously agreed that the accused had committed any specific act or acts of trafficking.  If the jury accepted what they were told in the judge's charge, then it is highly unlikely, to say the least, that they were agreed that the applicants were guilty of continuous offences in respect of counts 2, 3 and 5.  The jury was required by the judge to be unanimous as to each count, but the periods alleged in each of counts 2, 3 and 5 covered, in the one count, two and, in the other count, many separate alleged trafficking transactions.  For all one knows, the jury may have found the accused guilty on those counts although members of the jury, either individually or in groups, were satisfied about different trafficking transactions or groups of transactions. The direction as to unanimity was in conventional terms and would have been appropriate for continuous offences, but it was not appropriate if the prosecution case was being left to them on the basis of one or more individual trafficking transactions.

Nor is this uncertainty of little consequence, for there must be, and is, a vast difference between a conviction which relates to the carrying on of a trade in drugs for a sixteen months', or even a three months' period and one which relates to a single transaction, or even two or three transactions, of sale, purchase, delivery or receipt of drugs in their transmission from source to consumer.  This is not fanciful, for in the case of the fifth count, the trial judge himself found for the purpose of sentencing that the only transaction in trafficking he would accept as proved was the sale on 15 May 1985 to Kim Mortensen: see p 1699 of the transcript.  Serious as that was, the trial judge found that it merited only a two year sentence, for there could be little doubt that the offence would have been far more serious if it had been established, as it was alleged, that the first‑named applicant had been engaged continuously in the trade or commercial activity of dealing in drugs for a period of almost three months, especially as the jury had found that he had been in possession of drugs on the day preceding that period, for which he had already been charged.

Moreover, it is plain that if the direction had properly described the concept of a continuing offence over the alleged periods, no such uncertainty could fairly have been claimed.  As it eventuated, the only inference which can be drawn is that members of the jury were satisfied that one or more, indeed possibly a great many, separate trafficking transactions occurred during each of the relevant periods but there is no means of knowing whether the jury was unanimously agreed as to any particular transaction or any particular series of transactions for the purpose of reaching each of those verdicts.  In my opinion, no verdicts of that kind should stand, unless the applicants are prevented from relying on the misdirection.”

Ultimately, the appellants failed in Giretti because a majority of the Court (Ormiston J. dissenting) considered that there had been no substantial miscarriage of justice, and the appeal was dismissed pursuant to the proviso to s. 568 of the Crimes Act 1958 (Vic.), which is that State’s equivalent to sub-s. 668E(1A) of the Code: see per Crockett J. at p. 120, Gray J. at pp. 120-121 and Ormiston J. at pp. 142-147.

Although Giretti was not referred to, a similar approach to that of the Victorian Court of Criminal Appeal in that case has been adopted in New South Wales: see, for example, R. v. Locchi (1991) 22 N.S.W.L.R. 309; R. v. Goodfellow (1994) 72 A.Crim.R. 331, 335-336; Hamzy (1994) 74 A.Crim.R 341.  In the latter case, Hunt C.J. at C.L., with whom Abadee and Simpson JJ. agreed, said at pp. 347-348:

“The appellant has also submitted that the principle stated in the cases upon which the Crown has relied is flawed because of the procedural disadvantages which it causes to an accused.

The right of the Crown to establish a number of acts where each is not specified in a separate count, it is said, denies to an accused knowledge of the nature of the case which he has to meet, infringing the principle stated in Johnson v Miller (at 487, 489) and in S (at 274, 281‑282, 284‑285; 227, 232‑233, 234‑235).  But those cases are altogether different.  In each of them, the Crown sought to rely upon only one individual act as constituting the offence charged but declined to identify in advance which particular one out of the multitude of acts which it was intending to prove.  Where the Crown seeks to establish a particular activity or enterprise, it relies upon every act which it intends to prove (although, obviously enough, it does not have to establish every such act in order to succeed).  In such a case, the Crown would be obliged to provide proper particulars, not only to enable the accused to know the case which he has to meet (Stanton v Abernathy at 663; 21), but also to enable the trial judge to deal with any objection taken to what is proposed - a matter to which I will return later.

Next, it is said that proof of an activity or enterprise in accordance with this principle permits the Crown to call what is in effect propensity evidence without the protection of proper directions as to the use which may legitimately be made of that evidence.  But the evidence is not of mere propensity to commit this particular crime.  Each individual act of supply is directly relevant to the issue which the Crown seeks to prove - namely, in the present case, that the appellant was engaged in the criminal enterprise of dealing in heroin.  There is nothing said in either Hoch (1988) 165 CLR 292; 35 A Crim R 47 or Harriman (1989) 167 CLR 590; 43 A Crim R 221 which would prevent such a course being followed. If it is thought that a direction is needed in the particular case in order to avoid any misuse by the jury of such evidence, such a direction should be given: cf Marley (1932) 47 CLR 618 at 621; Harriman (at 609; 235); Martin (1990) 48 A Crim R 208 at 212.

Then it is said that that principle denies to the appellant the right to plead either autrefois acquit or autrefois convict should he subsequently be charged with an offence based upon one or more of the individual acts upon which reliance is placed by the Crown when seeking to establish a particular criminal activity or enterprise under the one count, as no‑one would know whether the individual act or acts had been accepted by the jury.  It is a well‑ established rule at common law that a person shall not be punished twice for the same offence, although he may be so punished where the same act creates two different offences: Thomas [1950] 1 KB 26 at 31‑38; (1949) 33 Cr App R 200 at 204‑214; Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 282; Saraswati (1991) 172 CLR 1 at 13; 54 A Crim R 183 at 191. See also Connolly v Meagher (1906) 3 CLR 682 at 685; State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 528‑529; 65 A Crim R 509 at 518‑519. Nice questions may perhaps arise as to whether, in the particular case, the individual act of supply creates the same or substantially the same offence when considered separately from the criminal enterprise of dealing which the Crown has sought to prove under one count charging supply: cf Connelly v DPP [1964] AC 1254 at 1305‑1306; (1964) 48 Cr App R 183.

In Dodd (1991) 56 A Crim R 451 at 457, this Court held that, where an accused has previously been punished summarily for possession of a prohibited drug and he is then charged by indictment with the supply of the same drug, the charge of supply was an aggravated form of the charge of possession, and he was entitled to raise a plea in bar analogous to autrefois convict rather than a discretionary order for a stay. If, however, the particular case did not fall squarely within the principles which gave rise to a plea in bar, it was said that the accused must seek such a stay. The distinction drawn was not as to which rather than the other procedure was available; the distinction lay in the availability of the plea in bar as of right rather than the need to obtain a stay as a matter of discretion. I do not interpret that decision as denying the availability of the discretionary remedy; it is saying no more than that the accused was entitled to obtain the more certain relief (as of right) by the plea in bar.

I do not, however, consider it necessary in this case to resolve the intricacies of the rule against double jeopardy as it applies here, for in my view there could be no justification except in the most extraordinary circumstances for the Crown to bring a further prosecution based upon any such individual act where it had previously - successfully or unsuccessfully - relied upon that act in seeking to establish a particular criminal activity or enterprise under the one count.  If it did bring such a further prosecution based upon such an individual act, the prosecution would inevitably be stayed - either as an abuse of process: Barton (1980) 147 CLR 75 at 96, 103, 107, 109; or as being against the dictates of propriety: Hoar (1981) 148 CLR 32 at 38‑39. The Crown cannot have it both ways. So much was very fairly conceded by the Crown before us.

A reconsideration of all of these authorities does not persuade me that the principle stated by this Court in Smale and in Locchi is wrong.  In my view, the Crown is entitled to plead in the one count a charge of supply where it intends to prove a number of individual acts of supply by the accused to different people and at different times, provided that those acts can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity, but the trial court has power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. ...”

The passages to which reference has been made highlight a major possible difference between proof of an offence which can (and perhaps must) be proved by a course of conduct, and proof of an offence against s. 229B of the Code. To establish an offence against s. 229B, even if it proves a course of sexual conduct, the prosecution must prove that the accused person “as an adult, has ... done an act defined to constitute an offence of a sexual nature in relation to the child, ... on three or more occasions ...”. That requirement raises the question whether the section can be only satisfied by proof that the accused did an act of the kind described on at least three specific occasions, or whether proof of a course of conduct from which it can be concluded that the accused did such an act at least three times is sufficient, even though the jury might not be unanimous with respect to the occasions of the material acts.

Thus far, only passing reference has been made to the decision of this Court in K.  There, Davies J.A. adopted the former view.  His Honour said:

“... his Honour should have told the jury that, in order to convict the appellant of the offence under s.229B, they must be satisfied that on three or more occasions the appellant had done an act of the defined kind; that those acts could but need not include one or more of the acts the subject of counts 2 to 12; but that whether they did or not the jury should be agreed upon at least three of the acts as constituting the offences of a sexual nature for the purpose of s.229B whether or not they were acts particularised in the evidence as to dates or exact circumstances.”

Shepherdson J., who agreed with Fitzgerald P.’s reasons and added brief additional comments, said:

“The learned President has also discussed problems which can arise when a count based on s.229B(1) of the Criminal Code is joined in one indictment with other counts alleging specific sexual offences. I agree with his comments and particularly his comments as to s.229B increasing the risk of unfair trial and miscarriage of justice. I should have expected that at committal proceedings the prosecution would have statements from a complainant setting out in detail all relevant evidence - including incidents or conduct of a sexual nature involving the accused and on which the prosecution proposes to rely at trial. If necessary, particulars can later be ordered to be given by the prosecution so that an accused is properly informed of the case he has to meet and in sufficient time to enable him to prepare his defence to the charges or charge.

General allegations of sexual dealings between a complainant and an accused which lack detail and which are sought to be introduced under Witham have the potential to derail an otherwise fair trial.”

As those remarks by Shepherdson J. indicate, Fitzgerald P.’s judgment in K contained a discussion of s. 229B of the Code with which his Honour agreed.  After referring to the “fundamental right of an accused person not to be tried unfairly”, Fitzgerald P. said:

“... One associated principle is that a trial judge has power to exclude admissible evidence to ensure that a trial is fair to an accused, including evidence made "admissible and probative" by sub-s. 229B(1) of the Code.  A variety of circumstances can give rise to the need to exercise that power; for example, that the accused was not adequately informed of part of the case against him in time to challenge and meet it properly, that evidence lacks the necessary specificity to enable the accused to challenge and meet it, or that the prejudicial effect of evidence is disproportionate to its probative value, etc.  Further, and more importantly in the present case, when evidence with a potential for unfairness to the accused is received, the trial judge's summing-up to the jury must include whatever directions are necessary to ensure that the accused's trial is fair.  There are many recent authorities which bear out these propositions; see, for example, Bradley (1989) 41 A.Crim.R. 297; Longman v. R. (1989) 168 C.L.R. 79; S. v. R. (1989) 168 C.L.R. 266; R. v. Turney (S.A. CCA No. 305 of 1989, unreported, judgment delivered 18.1.90); Podirsky v. R. (1990) 3 W.A.R. 128; R. v. Butun (W.A. CCA No. 191 of 1990, unreported, judgment delivered 15.2.91); R. v. Cooper ( Vic. CCA No. 92 of 1991, unreported, judgment delivered 6.12.91); R. v. Beserick (1993) 30 N.S.W.L.R. 511; R. v. O'Brien (N.S.W. CCA No. 60483 of 1992, unreported, judgment delivered 5.11.93); R. v. F (C.A. No. 439 of 1994, unreported, judgment delivered 12.12.94); G. v. R. (S.A. CCA No. 13 of 1995, unreported, judgment delivered 4.4.1995); R. v. Thorne (Vic. CCA No. 33 of 1995, unreported, judgment delivered 9.6.95): cf. R. v. Hamzy (N.S.W. CCA, unreported, judgment delivered 5.8.94). 

Of course, the right of an accused person not to be tried unfairly is not concerned only with the reception of evidence and the trial judge's responsibility in summing-up to the jury.  Thus, for example, sub-s. 567(2) of the Code permits the joinder in a single indictment of charges for more than one indictable offence ‘if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose’, and specific provision is made in sub-s. 229B(2) for a single indictment to include charges for an offence against sub-s. 229B(1) and any other offences ‘of a sexual nature alleged to have been committed by [the accused person] in the course of the relationship in issue in the ... offence ...’ against sub-s. 229B(1).  (Sub-section 229B(2) also states that an accused ‘... may be convicted of and punished for all or any of the offences so charged ...’, although a proviso limits the sentencing discretion.)  However, s. 597A empowers the Court to order separate trials in respect of offences joined in the same indictment if ‘the accused person may be prejudiced or embarrassed in his defence ... or for any other reason it is desirable ...’ that there be separate trials, and the special risk of unfairness to an accused against whom sexual offences are joined in one indictment has been authoritatively recognised: e.g., in De Jesus v. R. (1986) 61 A.L.J.R. 1; and R. v. B. [1989] 2 Qd.R. 343. Separate trials can be ordered if the evidence which the prosecution proposes to adduce in relation to a count alleging an offence against sub-s. 229B(1) cannot be satisfactorily restricted to prevent unfairness to an accused person in relation to other counts alleging specific sexual offences; often, all the offences will be able to be tried together on the basis that the prosecution will not offer evidence which would make the trial unfair to the accused.

Ultimately, if all offences are tried together and all evidence tendered by the prosecution is received, it remains the trial judge's duty to ensure that the trial is fair to the accused by his or her summing-up to the jury. It is by reference to that consideration that the present matter falls to be decided. Section 229B of the Code does nothing to lessen a trial judge's responsibility in that regard; on the contrary, it commonly places a significantly increased burden on the trial judge. Thus, for example in a case like the present, the summing-up must take account of the difficulties faced by an accused person when charged not only with specific conduct but with such an inherently broad and imprecise concept as a ‘relationship’ of a particular character; as used in this case, s. 229B involves a significant departure from the traditional requirement that an accused person ‘is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act matter or thing alleged as the foundation of the charge’: Johnson v. Miller (1937) 59 C.L.R. 467 at p. 489, per Dixon J.; see also Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at 362, where his Honour said that a person is not to be convicted on ‘inexact proofs, indefinite testimony, or indirect inferences’.

More generally, an accused in a case such as the present faces all the potential unfairness identified in S., including the risks that he will be convicted on the basis of the jury's conclusion that he has a propensity to commit sexual offences and that his conviction on a charge alleging a breach of sub-s. 229B(1) might, in part, depend on different conclusions by different jury members in relation to various parts of the complainant's generalised evidence.  Thus, in the present case, it is impossible to determine, for the purpose of sentencing or otherwise, whether the jury was satisfied to the requisite standard of any misconduct by the appellant towards the complainant other than the activities the subject of counts 3, 7, 9, 10 and 12, and, it seems from the trial judge's discussion after the verdict with the jury foreman, an unidentified act of sexual intercourse prior to the complainant's twelfth birthday.

...”

K had been convicted of not only an offence against s. 229B, but also in excess of three specific sexual offences of the requisite character against the complainant in the period to which the s. 229B count related; the jury had therefore obviously unanimously agreed that he had committed at least three specific acts each constituting an offence of a sexual nature, and the present problem did not directly arise. However, as has been noted, Davies J.A. dealt with the point expressly, and a similar view is implicit in Fitzgerald P.’s observations, which went on to emphasise further the need for fairness to the person accused in the conduct of his or her trial. For example, Fitzgerald P. later said:

“Further, the trial judge was obliged to tell the jury that, in evaluating the complainant's evidence in order to decide whether it was so credible and reliable that it satisfied the jury that there was no reasonable doubt but that the appellant was guilty, it must take into account in favour of the appellant:

(1)the lack of specificity in parts of the complainant's evidence;

(2)that the complainant's allegations, especially those made in general terms, were difficult for the appellant to test or contest (except by his own testimony) when there was no third person able to give material evidence;

...

The generalised evidence which the prosecution led against the accused - generalised allegations of sexual intercourse between the appellant and the complainant and of him penetrating her digitally and otherwise touching her sexually - presented special risks of unfairness to the accused which had to be addressed in the summing-up. ...”

The authorities to which we have referred persuade us that the appellant was entitled to particulars of the offence against sub-s. 229B(1) of the Code with which he was charged, although, having regard to sub-s. 229B(1A), he was not entitled to specific dates or the “exact circumstances” of each “act defined to constitute an offence of a sexual nature” in relation to the complainant. Although s. 229B of the Code was undoubtedly intended to avoid the degree of specificity which might otherwise have been required, necessitating a number of separate, fully detailed allegations, it stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials.

We are further persuaded by the decisions referred to that the jury was required to be unanimously satisfied beyond reasonable doubt that the appellant had done the same three acts each constituting an offence of a sexual nature against the complainant.

It remains to be considered whether there was, in consequence of error at the trial, a substantial miscarriage of justice.  In considering this question it is permissible to have regard to the manner in which the appellant conducted the trial, for example, in this instance, his failure to seek the directions which he now complains were not given to the jury.

However, if the appellant had established deficiencies in the particulars furnished by provision of a copy of the complainant’s statement, we would find it difficult to be satisfied that there has not been a substantial miscarriage of justice.  The importance of appropriate particularity has been stressed too often to be lightly dismissed, and plainly an absence of particularity can influence decisions which must be taken in the course of a trial and adversely affect the capacity of an accused person to mount an effective defence.

Here, however, the only complaint on appeal with respect to particulars concerns the omission of the prosecution to nominate an incident said to give rise to the circumstance of aggravation and, as the appellant conceded, the application for particulars “did not go specifically to the circumstance of aggravation”.  Further, as we have pointed out, each of the allegations against the appellant involved indecent dealing.  In the circumstances, we are not persuaded that there was any error with respect to particulars which affected the appellant’s prospect of acquittal.

The inadequacy in the trial judge’s directions raises the question whether a different verdict might have resulted but for the error.  In considering this issue, two related matters seem to us of particular importance.  One is the failure of the appellant to raise the present complaint at his trial.  The other is that there was no significant attempt by the appellant at his trial to differentiate between the various aspects of the complainant’s testimony concerning the sexual misconduct she alleged against him; the trial was conducted as an “all-or-nothing” contest between the complainant’s testimony and the evidence of the appellant.  It is plain that the jury believed the complainant, and there is no rational basis upon which different members of the jury might have doubted some, different, portions of her account.  In the circumstances, we cannot identify a foundation for a conclusion that there is a possibility that an innocent person might have been convicted by reason of error by the trial judge.

Accordingly, despite error at the trial, we would dismiss the appeal.  As previously indicated, we would refuse the application for leave to appeal against sentence.