Slater v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0130

ROBBIE KEITH SLATER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 October 2020
DATE OF JUDGMENT:	22 October 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 270
JUDGMENT APPEALED FROM:	DPP v [Slater] (Unreported, County Court of Victoria, Judge Wraight, 9 November 2018) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with a child under 16, incest, rape and other offences – Whether defence counsel incompetent – Whether failure to cross-examine witnesses on discrepancies and inconsistencies incompetent – Cross-examination on peripheral discrepancies discouraged – Forensic disadvantage and propensity warnings not requested by counsel – Whether trial judge erred in failing to find substantial and compelling reasons to give forensic disadvantage or propensity warning – Leave to appeal refused – Anile v The Queen [2018] VSCA 235; TKWJ v The Queen (2002) 212 CLR 124; R v Grech [1997] 2 VR 609; Pell v The Queen (2020) 376 ALR 478 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Ferraro, Pruscino & Co
For the Respondent	Mr P Bourke SC with Mr P Smallwood	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Convictions and grounds of appeal

An indictment filed in the County Court charged the applicant with committing an indecent act with a child under 16[2] (22 charges – charges 1 to 13, 17 to 20, 22 and 23, and 28 to 30); incest[3] (four charges – charges 14 to 16, and 24); rape[4] (one charge – charge 21); making a threat to inflict serious injury[5] (one charge – charge 27); and committing an indecent act with a 16 or 17 year old child[6] (two charges – charges 25 and 26).
[2]Crimes Act 1958, s 47(1).
[3]Crimes Act 1958, s 44(2).
[4]Crimes Act 1958, s 31(1).
[5]Crimes Act 1958, s 21.
[6]Crimes Act 1958, s 49(1).

The indictment spanned a period from 1 January 2003 to 7 February 2012, and related to four child complainants, ‘JN’, ‘AN’, ‘SN’ and ‘KN’. The four children belonged to ‘CN’, a woman with whom the applicant formed a relationship in about June 2004. JN and AN are male; and SN and KN are female. Further, most of the charges concerned two locations: first, a house in a rural town north of Melbourne (‘the first address’); and secondly, a farm outside a town situated in relatively close proximity to the first (‘the second address’ or ‘the farm’).

On 30 October 2018, a jury empanelled to try the applicant was discharged without verdict. The next day, 31 October 2018, the applicant’s trial commenced before a second jury.

At the close of evidence, on 5 November 2018, the prosecutor informed the judge ‘that on charges 9 and 10, 16, 17 and 18, there is no evidence’. As a result, the trial judge directed that an entry of not guilty be made on the record in respect of those charges.

On 9 November 2018, the jury found the applicant guilty of 15 charges, all relating to the two male children: 12 charges of committing an indecent act with a child under 16 (charges 1, 2, 3, 5, 6, 7, 8, 11, 12, 13, 19 and 20); two charges of incest (charges 14 and 15); and the one charge of rape (charge 21). Four of the convictions related to JN (charges 1, 2, 3 and 8); and 11 related to AN (charges 5, 6, 7, 11, 12, 13, 14, 15, 19, 20 and 21). The jury also found the applicant not guilty on one charge relating to AN of committing an indecent act with a child under 16 (charge 4).

Three days later, on 12 November 2018, the jury indicated that it was unable to reach verdicts on the remaining nine charges, all of which related to the female children, SN (charges 22 to 27) and KN (charges 28 to 30). As a result, the jury was discharged without verdict on those charges. Those nine charges were later discontinued upon the applicant pleading guilty to two charges on a separate ‘plea indictment’, charge 1, relating to SN, being a representative charge of sexual penetration with a child under 16; and charge 2, relating to KN, being one charge of committing an indecent act with a child under 16.

On 15 February 2019, the trial judge sentenced the applicant to a total effective sentence of 13 years’ imprisonment, and fixed a non-parole period of nine years.[7]
[7]DPP v Slater (a pseudonym) [2019] VCC 161.

The applicant now seeks leave to appeal against the convictions relating to JN and AN, contending, first, that various aspects of counsel’s conduct of his trial were incompetent; secondly, that there was material non-direction by the trial judge; and, thirdly, that the convictions on charges 11 to 15 are unreasonable. His (amended) grounds of appeal are formulated as follows:

1. A substantial miscarriage of justice occurred as a result of incompetence of counsel in his conduct of the trial by
(a)Failing to take proper instructions;
(b)Failing to advise that were the applicant to be convicted of any count on the indictment he risked a substantial custodial sentence and it would be most unlikely that he would be fined;

(c)Failing to put evidence to [AN] that in the first two or three months there was no offending against him by the applicant, when the applicant was given an alibi as to any other time at [the farm] from evidence from [CN], [KN] and [SN];
(d)Failing to
(i)put to each complainant that they had admitted to [JN], their grandmother, that their complaints against the applicant were lies;
(ii)put to [JN] the retractions of the complaints the following week together with the assertions of wellbeing after the retractions when the prosecutor had lead [sic] evidence of those same complaints;
(iii)put that had those retractions not been true they would never have moved into the applicant’s farm with the applicant without complaint;

(e)Failing to put that the above complaints were retracted in the presence of each complainant;
(f)Failing to put that the same complaints were made in the presence of their three uncles who did not believe them;
(g)Failing to seek leave if necessary and lead evidence that [KN] had previously given in substance [SK’s] evidence in a disclosure at her school in a self-defence class on 20 May 2010, having given none of that evidence in chief;
(h)Failing to put to [KN] that she never came back to [the second address] after she left to go to [the first address] in lieu of her allegation of a crime at that time;
(i)Failing to put that [SN] had lied in her allegation that she was threatened to be raped in a shed at the property in [the second address] and failing to lead prior inconsistent statements from the committal;
(j)Failing to submit that Charge 15 was latently duplicitous;
(k)Failing to seek a forensic disadvantage warning or an anti-propensity warning.

2. A miscarriage of justice occurred by the learned trial judge failing to find substantial and compelling reasons to give
(a)a serious forensic disadvantage warning and give the warning;
(b)an anti-propensity warning.

3. The convictions on charges 11 to 15 are unreasonable.

In my view, none of the grounds has substance. Leave to appeal must therefore be refused. My reasons follow.

Overview of the alleged offences

So as to understand the issues raised in this application, it is necessary to say something about the facts upon which the charges were based.

Repeating some background details for the sake of context, the applicant commenced a relationship with CN in about June 2004. CN had four children between the ages of seven and 12. Their father had died in late 2003. The two boys, JN and AN, were aged nine and 10 respectively; and the two girls, KN and SN, were aged 7 and 12.[8]
[8]JN was born in June 1995; AN in February 1994; KN in June 1997; and SN in August 1992.

In late 2004, the applicant began residing with CN and the children at the first address. At some time in 2007, the applicant rented the farm.

As I have mentioned, the charges upon which the jury convicted the applicant all related to the boys, JN and AN. The nine charges upon which the jury could not agree, and which later formed the basis of the two charges on the plea indictment, related to the girls, KN and SN.

JN: Charges 1, 2, 3 and 8

JN gave evidence that, not long after the applicant moved in with CN and the children, he woke up early one morning and went to watch television in the lounge room. JN sat on the floor in front of the applicant. The applicant pulled JN’s pants down and started playing with his penis (charge 1 – indecent act with a child under 16). Similar activity occurred a couple of times every fortnight. JN told no-one because he felt scared and shy.

On another occasion, when JN was suspended from school, the applicant told JN to go into the bathroom to shave his hair because he had nits. When he was in the shower, the applicant came into the bathroom and played with his penis in the shower. JN said that the applicant grabbed and groped his penis and masturbated it (charge 2 – indecent act with a child under 16).

JN recalled another incident after the family had moved to the farm, in which the applicant gave him beer. He was playing on a PlayStation in his bedroom when the applicant came in and gave it to him. Later, the applicant returned to the room, pulled JN’s pants down and began masturbating him. JN stated that he did not like it and that the applicant said to him, ‘I pretty much do it in your sleep anyway’ (charge 3 – indecent act with a child under 16).

When JN was aged 11 or 12, his older brother AN was in the bathroom. The applicant took JN into the bathroom and made the two boys compare their penises (charge 8, JN; charge 7, AN – indecent act with a child under 16).

The acquittal on charge 4: AN

Charge 4, which resulted in an acquittal, related to AN. It was alleged that, when AN was in the shower aged 11, the applicant came into the bathroom at CN’s request to check that AN had washed his penis properly.

AN: Charges 5, 6, 7, 11, 12, 13, 14, 15, 19, 20 and 21

AN gave evidence that, when he was about 11, he was sitting on the couch in the lounge room when the applicant put his hands down his pants and started touching him (charge 5 – indecent act with a child under 16). AN’s evidence was that this type of activity occurred five or six times a month.

When AN was aged about 13 they moved to the farm. He was in the shower on one occasion when the applicant walked in, pulled the curtain back and touched his penis (charge 6 – indecent act with a child under 16). The applicant then brought JN into the bathroom, and made them compare penises (charge 7, AN; charge 8, JN – indecent act with a child under 16).

On an occasion in the lounge room of the farmhouse, the applicant masturbated AN, and had AN masturbate him to the point of ejaculation. AN wanted to go to bed, but the applicant also wanted him to ejaculate. AN complied so that he could go to bed more quickly (charges 11 and 12 – indecent act with a child under 16). The same activity went on five to six times a month.

AN began going to bed earlier, when others did, so he would not be left alone with the applicant. The applicant, however, began to go into AN’s bedroom with a torch, which he would shine on AN’s genitals (charge 13 – indecent act with a child under 16). He would then take AN into the lounge room where he forced him to have oral sex by forcing AN’s head and mouth down onto his penis (charge 14 – incest). The applicant would then put his mouth on AN’s penis (charge 15 – incest). This activity occurred on a regular basis.

On another occasion at the farmhouse, while AN was having a shower, the applicant got in the shower with him. The applicant masturbated AN, and had AN masturbate him (charges 19 and 20 – indecent act with a child under 16). This activity happened a few times.

After AN, his mother and the other children moved away from the farm, AN did not have any further contact with the applicant until he was about 15 or 16, when he approached the applicant for work. He then undertook casual part-time work during the holidays and on weekends. When he did so, AN sometimes stayed at the applicant’s property. The applicant had a converted bus like a mobile home, and the two of them would share the bus. During the time AN worked with the applicant there was continual sexual activity which involved touching, masturbation and oral sex. (These activities were uncharged.)

There was a period when AN did not have contact with the applicant. After he left school at the age of 17, however, he contacted the applicant to obtain work. The applicant obliged, and AN would go back to the property and stay on the bus. On one occasion while AN was staying overnight in the bus, the applicant woke him up and took him into his bed, where there was further touching. The applicant got up while AN was lying on his back. He lifted AN’s legs up whilst facing him. The applicant then started masturbating himself, and attempted to insert his penis into AN’s anus. AN tried to push the applicant away and said, ‘no, no, no, I don’t want to do this, please stop’. The applicant persisted until he eventually penetrated AN and ejaculated inside him (charge 21 – rape).

The plea indictment: SN (charge 1) and KN (charge 2)

Although the applicant pleaded guilty to the two charges in the plea indictment — so that the convictions on those charges are not the subject of the present application — it is convenient to summarise the circumstances of the relevant offending to provide context.

In early 2005, SN, then aged 12, was asleep on the top bunk in the bedroom she shared with KN, wearing shorts and a singlet. She woke up and saw a torch held by the applicant shining on her vaginal area. SN pretended to be asleep, and the applicant pulled her pants down to just below her buttocks. The applicant then parted her legs, shone the torch on her vaginal area and put one or two fingers inside her vagina. He then pulled her pants back up and left.

A couple of nights later, the applicant did the same thing, but this time softly touched SN’s vagina as he was looking at it. SN again pretended to be asleep. This activity became regular, occurring two or three times a week. On a dozen or so occasions, the applicant put one or two fingers in SN’s vagina, causing her pain. Sometimes the applicant would put money under her pillow. He warned her many times not to tell anybody what had happened. These facts form the basis of charge 1 (a representative charge).

CN decided to leave the farm and move back to the first address following an event during which the applicant went into the girls’ room and started to pull SN’s blankets down. SN screamed out for her mother.

After CN and the children left the farm and moved back to the first address, they sometimes visited the applicant at the farm. On one such occasion, when KN was in Grade 6, she was in a boat on the dam playing with AN and JN. The applicant told JN that he would give him fifty dollars to push KN out of the boat. JN pushed her out of the boat. She then had to go inside the farmhouse to change out of her wet clothes. The applicant brought her some of his own clothes to wear until KN’s clothes had been washed and dried. He then left the room. At that point, everyone else was still by the dam. The applicant then walked back into the room. KN had the applicant’s jacket around her. He opened the front of the jacket and touched her breast. This act formed the basis of charge 2.

Complaint

It appears that, when SN was aged 13, she told her mother what the applicant was doing, but her mother did not believe her. JN overheard his sister’s complaint, and told her that he believed her, and that something had also happened to him.

When KN was about 10, she told SN that the applicant had ‘done it’ to her too. SN told their mother, who did nothing. Further, when KN was in Year 7, she told a counsellor what had happened to her. Police became involved, but KN later told them she did not want to proceed. And around Christmas 2009, KN told both her aunt, ‘KMN’, and a friend, that she had been abused by the applicant. KMN contacted police in early 2010, but the matter at that time went no further.

In June 2012, there was a birthday party at KMN’s house. That night, SN told her aunt that the applicant used to come into her bedroom and touch her. JN was present during this conversation and told his aunt that the applicant had ‘done stuff to me too.’ JN felt unable to talk about what happened to him and refused to go to the police.

KMN contacted the police in July 2012 and arranged for KN and SN to speak to them. The applicant was interviewed in relation to allegations concerning all the children and denied any wrongdoing.

‘JDN’, the complainants’ paternal grandmother, gave evidence concerning complaints the children made to her:[9]
[9]Emphasis added.

[PROSECUTOR] Yes. Now, at some stage after that relationship had commenced, had the children come and stay with you from time to time?---Yes.
And on one particular weekend, do you recall having a conversation with [SN] about [the applicant]?---Yes.
And what did she say to you?---About what had been happening to her.
And what did she say had been happening to her?---Um I think he’d been, um, in the shower getting dressed would – wouldn’t go out of the room when she told him to get out, no privacy.
Yes. On that that [sic] disclosure was made, was [KN] with her?---Yes.
And did she say something about it as well?---Yes.
And what did she say about it?---That what [SN] said was true that she was there.
And did she say anything about any involvement herself with [the applicant]?---No.
Do you recall an occasion when all the children were at your house and a disclosure was made?---It was that time.
That time, was it?---When [SN] told me, yes. They were all there. They all told me.
Yes, the whole - - -?---The four of them told me at the same time.
They were all there together, were they?---Yes.
And did [JN] and [AN] also make disclosures to you?---Yes, the four of them.
Yes. What did – well, let’s start with [JN], what did he say?---He’d told me that it had been happening to him and so did [AN]. … And they said that – I asked them about it and they wouldn’t talk about it. They couldn’t at that particular time, because they lost their father, I didn’t want to push them too much because they had enough to deal with, so I just left it. I thought they’ll tell me when they’re ready.
And did they tell you further?---Yes.
Anything further, what did they say?---They told me that they’d both been molested when they were older they told me this.
Whose they?---[JN] and [AN], both.
...
All right. And what did [SN] say on the second occasion?---Well the first occasion she told me every – most of what was going on with her, um, but she wouldn’t tell me – she just told me certain things, but she wouldn’t tell me the lot, she couldn’t, she just kept breaking down, ‘I can’t talk about it nan, I can’t, it’s so hard to tell you’. So I didn’t – I wasn’t told the full story at the time …
You were later on you were informed of more detail, were you?---Yes.
...
Yes. And you said she couldn’t tell you that she broke down, she couldn’t tell you?---Yes. She was, um too – I don’t know whether she was too embarrassed or what to tell me, but she did tell me certain things, but when she got to the finer part, ‘I can’t tell you this bit, nan, I can’t’, so I can only imagine how many she told …

...
And she told you certain things then?---Yes.
...
There was an occasion when she came to see you and told you something extra, didn’t she?---Yes.
Well, that’s the second time that she’s disclosed things to you, is that right?--- Yes.
What was disclosed on the second occasion she spoke to you about this?---Um all that he’d been doing to her.
Yes?---Disclosed everything.
M’hmm. Was a shed mentioned?---Yes.
Tell us about that?---She said that, um, he had threatened her and all of them that if they told me or anybody else, and particularly her, that he would take her down the shed, down the back, which I had been on that property, I had had [sic] seen where the shed was, which was way down the end of the property and that he would take her down to that shed – and I’d been inside that shed too.
...
Tell us what she said?---That in that shed he said he would lock her up in the shed and nobody would hear her if she called out for help and he would, um, come and molest her any time he felt like it.
Now, did you speak to [AN] about the matter and in particular why he didn’t do anything about it?---He was afraid of him.
Dr Flower’s evidence

Dr Teresa Flower, a consultant psychiatrist, gave evidence in the prosecution case.[10]
[10]See Criminal Procedure Act 2008, s 388.

In her evidence, Dr Flower said that ‘delayed disclosure of sexual abuse is very common and is the rule rather than the other way around’. Children will disclose sexual abuse when they ‘feel that the time is right’, and she gave evidence concerning the ‘inhibitors’ to children disclosing sexual abuse. Dr Flower also said:

If they think that they won’t be believed or that what they are going to say will cause trouble, they may not choose to disclose to anyone. We have a lot of evidence to suggest that children really do wait until they feel that the time is right, and they will be believed.

Dr Flower also gave the following evidence concerning ‘recanting’:

[PROSECUTOR]: Now, what does the research show about recanting of disclosure? In what circumstances if [sic] one encountered that from time to time?---So we know that denials and recantations can occur. … I think it goes back to the question of the time being right and children testing the water for disclosure of abuse. If a child’s disclosure is not received well by family members, then they may decide that it’s all too difficult, it’s all too hard, feel overwhelmed and say, ‘no, nothing happening at all’ and so withdraw their allegation that they have been abused.

Ground 1: The alleged incompetence of counsel
Affidavits before the Court

To support his allegations that his trial counsel was incompetent, the applicant swore two affidavits, on 3 December 2019 (‘the first affidavit’) and 11 August 2020 (‘the second affidavit’) respectively. The applicant also relied on an affidavit sworn by his son, ‘BJH’, on 29 November 2019. A further affidavit sworn by another son, ‘MJH’, on 10 December 2019, which had been filed in support of the application, ultimately was not relied upon.

Having been invited by the Registry on 16 January 2020 to respond to the allegations of incompetence, on 18 February 2020 the applicant’s trial counsel filed an affidavit which had been sworn on 30 January 2020.[11]
[11]By an email to the Registry on 18 February 2020 the applicant’s practitioners made clear that the applicant waived legal professional privilege.

In his first affidavit, the applicant swore to the following (among other things):

· For the purposes of his committal proceedings he had prepared a chronology and ‘extensive notes’, and had ‘at least 12’ conferences with his then counsel and solicitor.

· He first conferred with trial counsel, briefed by Victoria Legal Aid (‘VLA’), at their offices in a rural town on Friday, 19 October 2018, for two hours.

· On the day his trial was to commence, Monday, 22 October 2018, he picked trial counsel up from the train station at 8.30 am. When they attended court, they were informed that the trial would start the next day. He drove trial counsel to the second address, and then the first address. At the first address counsel could see ‘how big the property was and … the layout of the windows and their relationship to various rooms’.

· At no time on 19 or 22 October 2018 did he and trial counsel ‘speak about the actual charges or the case’, but instead spoke about matters ‘personal’ to counsel. Counsel told the applicant that he ‘would not be convicted on the charges but were [he] to be found guilty of something it would be something minor, [he] would only get a fine and [counsel] would pay it’.

· He again picked counsel up from the train station on 23 October 2018. When they attended court, he ‘expected’ counsel to apply for an adjournment since he ‘did not think the case was sufficiently prepared’. He ‘wanted to have a separate trial as a result of what my lawyers had said to me at the committal’. In discussion, the judge ‘made inquiry as to whether there was to be an application for separate trials, the prosecutor made a submission and [counsel] agreed to one trial’. The lawyers who had acted for him at the committal ‘had inquired into the facts of each charge carefully and had asked [him] to write detailed instructions as to each charge and the relationship [he] had had with each witness’. He raised with counsel the prospect of an adjournment and counsel said that he should trust him. Throughout the trial the applicant believed that as he had a Legal Aid lawyer he ‘was not able to sack him’.

· Apart from when he assisted him with challenges to prospective jurors on two occasions, the applicant’s VLA solicitor ‘made no appearance in either trial’. He told the solicitor on three or four occasions that he was ‘not happy with what’s going on’, and the solicitor said counsel was ‘running it a certain way’. This was ‘in sharp contrast with what happened at the committal where the barrister and solicitor worked with each other, with the solicitor seeking instructions from [him] and communicating them to the barrister and formulating what was to be done together’.

· At trial, AN gave evidence that he had complained to his grandmother, JDN, about the applicant’s conduct. No evidence was led, however, ‘that these complaints were made in the presence of the other complainants and were the subject of a retraction also in the presence of the other complainants very shortly afterwards’.

· At committal, JDN had given evidence that ‘the complainants came and told her that the applicant had touched them and later told her that [he] didn’t touch them’. She checked on the complainants every two weeks until they moved into the second address, ‘which would have been about six months during which time they said that they were fine and that nothing had happened’. They told her the reason why they lied was because they did not like the applicant. ‘This had been described by [his then] counsel … as “gold”’. He told trial counsel that he ‘wanted each complainant to be questioned on this and he refused to do it’. Counsel said ‘the kids would just lie and it wouldn’t be any good for us’. He (the applicant) was ‘disappointed when the retractions of the complaints was [sic] not put’. Further, when JDN was called, ‘the complaint was led but not the retraction’.

· JN gave evidence after AN, and also said that he complained to his grandmother, JDN. Again, however, ‘no barrister asked a question about the retraction and the six months maintaining of the retraction by all of the complainants’. JN gave evidence that his uncles were present with the applicant when he complained, but ‘they did not believe the complaints made and accused the complainants of lying’. Without mention of any retraction, however, ‘the uncles were painted unfairly in an unsympathetic light’. He (the applicant) told counsel that he ‘was never present with the uncles’ or JDN on such an occasion, and instructed counsel ‘to bring them up and put them on the stand’.

· When KN gave evidence she was not asked any questions about the retraction of the complaint made to her grandmother, or about other supposedly false allegations she had made.

· He ‘was most unhappy with [his] counsel but believed that because [he] was legally aided [he] was not able to choose [his] own barrister, but had to accept the one chosen for [him]’. As a result, he contacted the solicitor and counsel who had acted for him at the committal to convey his concerns.

· When he met trial counsel in the morning of 26 October 2018, the applicant was ‘angry’. He asked counsel why ‘he wasn’t asking witnesses questions when conflicting evidence was said at the committal, why he wasn’t speaking to witnesses, and why he wasn’t taking any notice of [him]’. Counsel said it was ‘all under control, sometimes you have to say less to get more, it’s all good, I have a plan, you should trust me’.

· There was a deal of material that bore on the credit of SN and KN which counsel did not put to them, and rebuttal evidence available that was not called.

· After the guilty verdicts he went into custody. He wanted to plead not guilty and ‘run trial of the remaining counts upon which the jury could not agree in the first trial’. Shortly before the trial was to commence, counsel advised him to plead guilty to two charges involving the female children. Counsel advised him that he ‘would not get any more should [he] plead guilty, and that the two charges would not make any difference at all’. The ‘only reason [he] pleaded guilty was because [he] was told that [he] wouldn’t get any extra time and it would make no difference to [him] at all’. He ‘was angry when [he] got extra time’.

The applicant’s second affidavit was brief. He stated that on Monday, 22 October 2018, he had taken photographs of the first address and the second address. He and trial counsel assembled them for photocopying, and for inclusion in albums, on Wednesday, 24 October 2018.

In his affidavit, BJH said that his father stayed with him for three weeks in ‘about August 2010’, before moving to the farm, where ‘he stayed for seven years’. BJH said that, in or around September 2010, he moved CN and her four children from the first address to the farm. Just before Christmas, however, he used the applicant’s van to move them back again (including with Christmas tree and presents). BJH said they stayed at the farm ‘only a short period of time’, which he remembered ‘was about two months’. He mentioned these things to trial counsel in October 2018, before his father’s trial commenced. Trial counsel told BJH that ‘he would win the case and that task would not be difficult’. Counsel said that ‘were he to be convicted the applicant would get off with a fine, maybe community service, he wouldn’t go to gaol’.

Trial counsel swore in his affidavit that he signed the Bar Roll in late 1990. He was briefed by VLA on or about 12 October 2018, and worked on the case ‘all weekend of 13 and 14 October 2018, including watching the DVDs of the three records of interview which occurred in March 2013 and twice more in late 2015’.[12] Counsel said that the applicant had ‘vehemently denied’ the alleged sexual misconduct in all three interviews, which ‘generated detailed and substantive answers’. Counsel swore:
[12]I note that, in the course of his oral evidence in this Court, counsel was confronted with a Defence Response to Prosecution Opening, which he had signed, dated 12 October 2018. Counsel said he may have done himself a ‘disservice’, in that he may have held the brief from an earlier period than he had thought.

8. I dispute the assertions in [the applicant’s affidavit] that I did not meet him until Friday 19 October 2018 and that we only spent two hours together in conference. [W]e met earlier that week on Monday 15 October 2018 and we spent five or six hours in conference before I took a late train back to Melbourne. ...
9. At no time did the [applicant] raise the idea of seeking to adjourn the case.
10. During my pre-trial visit … [the applicant] and I visited two addresses where the offending was said to have occurred, namely [the first address and the second addresses]. We went in his vehicle. We could not go inside [the first address] premises but I observed it carefully from the street. The same was the case for the rural property …
…

12. On Monday 22 October 2018, the case was only mentioned. Afterwards, time that morning was spent on substantial record of interview edits that [the applicant] agreed upon.
13. On Monday afternoon, again at my initiative, [the applicant] and I visited [the first address]. Several photographs of the outside of the house were discretely taken.
14. When we returned to [town], I spent an hour or more studying photographs that [the applicant] had collected over the years. These included pictures of him and the two male complainants in evidently happy and relaxed mood.
15. Later, on the same Monday, at my direction, we went to the local ‘Officeworks’ store where we made multiple copies of the old photographs and the photographs taken earlier at [the first address].^[[13]] We then collated them and put them into a number of small photo albums. These photo albums were prepared for the trial.
16. The substantive trial commenced the next day, Tuesday 23 October 2018. The photo albums were an important part of the cross-examination of the four complainants.
17. With respect, most of the [applicant’s] affidavit is disingenuous. When Court finished each day, usually at 4pm or shortly thereafter, the [applicant] and I would confer for up to two, sometimes three hours. … The [applicant] never criticised my conduct of the case at any stage. He was pleased with the way the respective cross-examinations unfolded. [The applicant] was particularly pleased with my cross-examination of the older female complainant and of the mother. He told me that after we left Court after those cross-examinations.
18. The first jury had to be discharged because of an overlooked edit in one of the records of interview. When the second jury retired, its deliberations ran into a second day. …
19. The fifteen guilty verdicts that were returned were confined to the two male complainants. Of the other fifteen charges, six were not guilty by direction or verdict, leaving nine charges where the jury were hung. These nine charges all concerned the female complainants. They were to be the subject of a re-trial from 22 January 2019.
20. As it transpired, in January 2019 just before the re-trial was due to commence, the Prosecution offered to withdraw seven of these nine charges were [the applicant] willing to plead to the remaining two, being one charge for each female complainant.
21. … [The applicant] was permitted to ring his sons to discuss the offer, which he did.
22. I deny ever telling [the applicant] that a plea hearing for a total of 17 charges (as opposed to the jury’s guilty verdict on 15 charges) would make no difference. It was always his decision and I made that very clear.
…
[13]In the course of his oral evidence in this Court, counsel accepted that the photographs were photocopied in the afternoon of Wednesday, 24 October 2018, and that in this respect his recollection had failed him.

24. I deny ever telling [the applicant] that the thirty charges that he was originally facing could or would only carry a fine. He was fully aware of the seriousness of his position at all times.
25. [The applicant] rang me two or three times from the Hopkins Correction Prison in Ararat in the lead-up to Christmas 2018. It was just to touch base. He made no criticism of me. At no time did he suggest that I should be replaced for the pending nine charge re-trial.
26. I have read through the Crown’s Revised Response to Applicant’s Written Case – Conviction dated 13 January 2020. I agree with what is said in that document, and in particular, what is set [at paragraphs 11 to 24].
27. I note, at paragraph 7 of the Revised Applicant’s Case, it is said that I was the eighth barrister to hold the brief. I worked on this case as conscientiously as ever. I have always abided by the ‘cab-rank’ rule.
28. I can confirm that I did not first meet [the applicant] on Friday 19 October 2018 as he would have it, as I was briefed to appear and did appear at a mention at the Ringwood Magistrates’ Court that morning. [Counsel’s backsheet exhibited.]
Oral evidence in the application

The applicant and BJH gave evidence in this Court in support of the applicant’s case. They adopted their affidavits as their evidence-in-chief, and were cross-examined by the respondent’s counsel. Trial counsel also gave evidence and was cross-examined by counsel for the applicant.

Although there were conflicts between the applicant’s and trial counsel’s evidence, counsel at each end of the Bar table agreed that, given the way in which the issues had evolved, there was no need for the Court to resolve those conflicts. I will therefore abstain from attempting to do so.

The applicant’s submissions

As the case developed during the hearing, much of what was in the written case fell away. Indeed, in oral argument the applicant’s counsel distilled trial counsel’s alleged incompetence into five ‘particulars’, as follows:

· first, the ‘failure to lead the retraction’;

· secondly, the ‘timing issue’;

· thirdly, the ‘duplicity issue’ on charge 15;

· fourthly, ‘[KN] giving [SN’s] evidence’; and

· fifthly, and itself a ‘particular’ of the fourth ‘particular’, SN’s version of the threat.

With respect to the first particular of trial counsel’s alleged incompetence, counsel for the applicant submitted that in light of the prosecution’s reliance on the complaint made by the four children to the complainants’ grandmother, it is difficult to understand why counsel in the course of cross-examination did not elicit evidence of their alleged retraction. Trial counsel had in his possession a statement from JDN to the effect that the complainants retracted their complaint and told her that they had lied. He also had possession of a statement from JN, who had said that the children’s grandmother and uncles had not believed their complaint. Additionally, there was evidence which suggested collusion between the two sisters, SN and KN, which was not brought out in cross-examination. Further, given that the applicant’s essential ‘defence’ was that the complainants were lying, proof of prior inconsistent statements was made all the more important.

As to the ‘timing issue’, the applicant’s counsel submitted that trial counsel did not elicit evidence casting doubt, first, on AN’s account, and, secondly, on whether the applicant and CN were domestic partners. Thus, in her statement, CN said that she only stayed at the farm with the children for about three weeks, before moving back to the first address. To like effect, the evidence of SN and KN at committal was that they were only at the farm for a short time. And JN said: ‘When I was 12 or 13 we all moved to [the farm] with [the applicant], we only stayed there for about a month before we moved out because Mum didn’t want to be in a relationship with him anymore’.

Counsel relied on what AN had said in his statement:[14]

When I was about 13 years old we all moved out of the [first address] and went to [the second address] that we rented. I shared a room with my brother [JN] and [SN] and [KN] shared a room, [SN] only stayed there for about six to eight months, she was gone for a few months but then ended up moving back with her boyfriend [‘T’]. For the first two or three months, things were quiet and [the applicant] was leaving me alone. One night while I was in the lounge room, everyone had gone to bed and it was just me and [the applicant]. I was sitting on a couch and [the applicant] was sitting on the other couch. [The applicant] approached and sat next to me on the couch. He put his hands down my pants and he made me play with my penis and masturbate myself. After a while [the applicant] pulled down his pants and he started masturbating himself. [The applicant] grabbed my hand and put it on his penis and told me to grab it. He made me masturbate him until he ‘came’, by this I mean ejaculating. [The applicant] then made me masturbate myself again and told me to make myself ‘come’, he said the quicker I did it, then the quicker I could go to bed. I don’t remember if he said anything to me afterwards but we both went to our beds. This happened about four or five times a month for about five months we masturbated each other until we ejaculated.

I started going to bed early so that this didn’t happen anymore, I made sure I went at the same time everyone else did. Things slowed down for about a month and nothing happened. ... He forced me to give him oral sex, and then he gave me oral sex, and then we masturbated each other until we ejaculated. This ended up becoming a regular occurrence about four or five times a month until we moved out when [the applicant] and my mum split up. I don’t remember when it was but I think that we were living with [the applicant] in [the farm] for about a year and a half.

[14]Emphasis added.

Further, counsel also drew attention to the cross-examination of AN at the committal, in which AN had said that the applicant had masturbated him ‘about two or three times a week’ for ‘one or two years’. He said that he thought that they had lived at the farm ‘closer to two years’.

The applicant’s counsel contended that, had the foregoing been adduced in cross-examination, the applicant would have had an alibi to charges 11 to 15 on the indictment. Importantly, the effect of the evidence would also be that there was insufficient proof that the applicant was a ‘domestic partner’ at the time charge 15, incest, was said to have occurred. It was submitted that the evidence that CN returned with the children to the first address could not possibly found a charge of incest. Charge 15 suffered from latent duplicity — this was the third particular — and the conviction on that charge must be bad. And since charge 15 was duplicitous, it was incompetent of counsel not to take that point.

Counsel’s submissions concerning the fourth particular of incompetence revolved around a Department of Human Services (‘DHS’) record, dated 20 May 2010, which had been produced at the committal proceedings. The document included a report made concerning KN, part of which was as follows:

Reporter stated that the child was participating in a self defense [sic] class at school, during the class when discussing self defence the child has disclosed that she was raped by her mother’s partner and then left money under her pillow. The child made this statement in class in front of all the other students. The child disclosed further, ‘he would come into my bedroom in the middle of the night and anyway what happened to me was nothing compared to what happened to my sister’. Reporter stated that the sister’s name is [SN] and there is also another sister and brother. Reporter stated that the child stated that the mother is not in a relationship with this man anymore but that the child’s brother may work for this man.

Despite the contents of the DHS record, counsel submitted, the activity complained of by KN formed no part of the prosecution case. Indeed, with respect to KN, the prosecution case was confined to the allegation that the applicant touched KN’s breast after she had showered following being pushed into the dam out of a boat.[15] Instead, it was SN who gave evidence in the prosecution case that the applicant came into her bedroom at night with a torch, penetrated her vagina with his fingers and left money under the pillow. KN’s complaint in front of her self-defence class amounted, so counsel put it, to ‘[KN] giving [SN’s] evidence’. That was evidence ‘of concoction and collusion’, which counsel should have elicited (particularly in a trial involving four complainants, where the prosecution relied on tendency evidence). Counsel for the applicant submitted that the failure of trial counsel to cross-examine on this issue was incompetent.
[15]See [31] above.

The fifth particular involved evidence given by SN of a threat allegedly made to her by the applicant. SN’s evidence at trial was that she was in the car with the applicant, being driven to her grandmother’s house. She said that the applicant took his penis out of his pants. He told her to take her ‘boobs’ out and he fondled them. SN’s evidence was that the applicant said

you tell anybody about this, then he was going to take me down this shed that he pointed that was [at the farm] and he said that he’d put me in that shed and tie – lock me up in there and come and rape me every day and no one would even know.

In her statement to police, however, SN said:

In the car he pulled down his pants and started wanking himself, he kept telling me to watch, and told me to pull out my tits. I was crying, he pulled down my top and was playing with my boob while he was playing with himself. I kept telling him to stop, I wanted to open the car door and jump out while he was driving. He drove down a dirt track and grabbed my face tightly under my chin. He pointed out a shed that was in a bush [sic], and he said ‘If you tell anyone about this, I’ll put you in there and rape you every day and no one will even know’.

Further, SN gave evidence at committal that the applicant

pointed at this shed down one of the roads and it was like an abandoned type shed and he said to me if you ever tell anybody about what he’s done, then he’ll lock me up in that shed and um I just – I was crying at the time and um he was trying to touch my breasts at the time when he was driving.

Additionally, JDN’s evidence at trial was that there was a shed ‘way down the end’ of the farm property that she had been inside. So far as ‘that shed’ was concerned, SN had told her that the applicant

said he would lock her up in the shed and nobody would hear her if she called out for help and he would, um, come and molest her any time he felt like it.

The gist of counsel’s argument on the fifth particular was that, in light of the supposed inconsistency in her version, it was incompetent of counsel not to cross-examine SN on whether the applicant threatened to enslave her for sexual purposes in a shed that was on the farm or one that was in the ‘bush’.

The respondent’s submissions

The respondent’s counsel submitted that trial counsel’s defence of the applicant demonstrated sound forensic strategy. Hence, in both cross-examination and in argument, trial counsel contended (among other things) that it was not physically possible for any offending to have occurred at the first address; relied on the improbability of sexual offending occurring at the first address in the manner and with the frequency alleged by the children, in circumstances where CN — a stay at home mother — had ‘no hint’ of any offending; argued the improbability of any offending having occurred in the manner alleged in light of the applicant’s circumstances at that time, including that he was running his own business; questioned whether there was enough time for offending at the farm to have occurred with the frequency alleged, having regard to evidence that CN and her children stayed at the farm a matter of weeks; pointed to the alleged inconsistency between AN’s evidence and that given by CN, JN, KN and SN as to how long they stayed at the farm; drew attention to AN’s apparently friendly relationship with the applicant, notwithstanding the allegations he made; emphasised alleged inherent improbabilities in SN’s evidence and AN’s evidence; and asserted various deficiencies in the police investigation.

As to the complainants’ retraction, the respondent’s counsel submitted that it was understandable that trial counsel would not seek to elicit evidence of the recantation, given the evidence of the psychiatrist, Dr Teresa Flower, that denials and recantations can occur when a child is exposed to sexual abuse.

The respondent’s counsel submitted that it was not relevant that the complainants’ uncles may have thought they were lying about the alleged offending. Moreover, the applicant did not have an alibi available to him. And the fact that the applicant had not previously sexually offended against other children said nothing about whether he had the tendency asserted by the prosecution at trial.

Counsel for the respondent submitted in writing that the fact that the applicant’s counsel was not incompetent is illuminated by the fact that the jury did not convict the applicant of any charge relating to the female children. And the assertion that the applicant’s counsel was incompetent for failing to put certain matters to SN and KN, or to lead evidence from KN for the purpose of undermining their credibility, rings hollow when regard is had to the fact that the jury did not return guilty verdicts to any charges involving offending allegedly committed against them.

The respondent’s counsel submitted that there was no occasion for trial counsel to challenge the validity of charge 15, since it was not bad for duplicity.

As to the fourth particular, the respondent’s counsel submitted that trial counsel may well have foreseen the danger that, by introducing what KN had said in front of her schoolmates in the self-defence class, he ran the risk of introducing evidence of uncharged sexual offending against KN that the jury might well believe occurred, notwithstanding her failure to complain to police about it. Importantly, counsel submitted, KN was not substituting herself for her sister. As KN said, what happened to her was ‘nothing compared to what happened to [her] sister’. Hence, the dilemma faced by trial counsel was that, in order to gain the potential benefit of some evidence that might possibly go to the issue of concoction or collusion, he instead ran the risk of the jury accepting the truth and accuracy of the new uncharged allegation of sexual offending introduced by his cross-examination. To have cross-examined KN on the topic, counsel submitted, would have been ‘courageous’.

With respect to the fifth particular of incompetence, the respondent’s counsel submitted that ‘there is no inconsistency of any moment whatsoever’ between the supposedly different versions of what SN had said, ‘and so no point of credit to be made by cross-examining her upon it’. Indeed, when one considers the consistency of what she had said, ‘all of those things would in fact … bolster her credit and her reliability as a historian’.

Principles

The principles that inform the resolution of the first ground were discussed in Anile:[16]
[16]Anile v The Queen [2018] VSCA 235, [213]–[217] (Priest, Beach and Weinberg JJA) (citations as in original).

We accept that incompetence in the manner in which a trial was conducted is not, of itself, a sufficient basis for concluding that a miscarriage of justice had occurred.
In R v Birks[17] Gleeson CJ set out the relevant principles as follows:
[17](1990) 19 NSWLR 677.
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[18]

In Nudd v The Queen [19] Gummow and Hayne JJ said:
[A]n appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel. Was what happened, or did not happen, at trial a miscarriage of justice?[20]
Of course, for a trial to be fair it is not necessary that every tactical decision of counsel turns out to have been carefully considered or wise. It is not the role of this Court to investigate such decisions in order to determine whether they were made with the fullest possible examination of all relevant considerations. Often decisions are made in the course of a trial that turn out to be ill advised in retrospect. That does not make them wrong or imprudent at the time that they were made. Nor does it make the client necessarily a victim of unfairness.[21]

[18]Ibid 685.

[19](2006) 225 ALR 161.

[20]Ibid [25].

[21]TKWJ v The Queen (2002) 212 CLR 124.

In a passage from TKWJ, referred to in Anile, Gleeson CJ said:[22]

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. ...

[22]TKWJ v The Queen (2002) 212 CLR 124, 130–131 [16] (‘TKWJ’).

And Gaudron J observed:[23]
[23]Ibid 132–3 [24]–[28] (citations omitted).

There are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court. First, the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage. Those decisions may contribute to a defect or irregularity in the trial. ... The second reason is that, ordinarily, it is not possible to know what was in defence counsel’s brief.
Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice ... In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
Discussion: Failure to lead the retraction

Viewed objectively, there were sound forensic reasons for counsel not to seek to introduce the children’s retraction. In so concluding, I have ignored the sworn evidence of trial counsel in this Court that he had made a forensic decision not to cross-examine the complainants about the retraction that had been made to the grandmother because ‘it was too dangerous’.

In my opinion, sound forensic judgment supported trial counsel’s failure to elicit the supposed retraction to JDN. By attempting to introduce evidence of the supposed recantation, counsel ran the real risk of the jury giving particular prominence to Dr Flower’s evidence, which, it will be remembered, included the following:

If a child’s disclosure is not received well by family members, then they may decide that it’s all too difficult, it’s all too hard, feel overwhelmed and say, ‘no, nothing happening at all’ and so withdraw their allegation that they have been abused.

There was other evidence available that adults to whom the children had complained did not believe them, so much corresponding neatly with Dr Flower’s evidence concerning child complainants’ behaviour. In those circumstances, any attempt to adduce evidence of the purported retraction ran the significant risk of giving undue emphasis to the reasons for the retraction. Indeed, were the jury to accept Dr Flower’s evidence on this aspect, there would have been no benefit to the defence flowing from the retraction. Instead, the defence case would have suffered significant detriment.

Furthermore, trial counsel presumably was aware of JDN’s view, expressed at the committal, that the children drew back from their purported recantation and told her the truth. As JDN put it when under cross-examination at the committal, ‘they united at the time [of the recantation], but later they turned around and told me the truth’. It would have been obvious to competent counsel that cross-examination of JDN on the recantation at trial gave rise to the significant risk of eliciting JDN’s opinion that the recantation was false, and that the children’s original complaints were the truth, potentially redounding to the detriment of the defence case.

Moreover, although there was other evidence that the applicant had threatened SN, JDN had made a statement to police that SN had ‘changed her story’ to say that the complaint of molestation was not true because the applicant had threatened her. There was, as counsel stated in argument, other evidence in the trial of a threat to imprison SN in a shed if she complained about the applicant — that threat being the foundation of charge 27 — but JDN’s statement contained evidence of a separate and distinct threat made to SN if she did not recant. In those circumstances, it is difficult to imagine that counsel could have extracted evidence of the recantation without concomitantly drawing out the highly prejudicial allegation that the retraction was the product of a threat.

Both in his first affidavit, and in his evidence in this Court, the applicant stated that his counsel at committal had described the evidence of the alleged retraction as ‘gold’. That is not how I would have described it. Indeed, subjecting the evidence to proper scrutiny and analysis, and weighing the possible benefits to be derived from the evidence against its lurking dangers, competent counsel would almost certainly have appreciated that the risk of prejudice potentially far outweighed any possible advantage.

I am not persuaded that the failure to elicit the recantation was the product of incompetence, or that it is otherwise the source of a miscarriage of justice. Indeed, from my perspective, it is difficult to imagine that competent counsel, armed with the material in the depositions, would have ventured on the dangerous path that the applicant’s counsel says that he should have.

Discussion: The timing issue and Charge 15 ‘domestic partner’ duplicity issue

It is convenient to deal with the ‘timing issue’ particular of incompetence, and the ‘duplicity issue’, together.

I have earlier referred to much of the material relied upon by counsel to support the ‘timing issue’ particular of incompetence.[24] In order to complete the picture, it is necessary to set out some of the evidence at trial.
[24]See [49]–[52] above.

In relation to the length of time the family resided at the farm, AN gave the following evidence under cross-examination:[25]
[25]Emphasis added to this and following passages.

You lived in the house, one bedroom down from [the applicant’s] bedroom?---Well if you are going to put it in terms of that, yeah, okay. The family lived up [to the farm] for about a year and like we all went back to [the first address], but I would ‑ I could go up and stay there at times.
I've been shown a statement that your mother made a long time ago in 2016. Can I read from it?---Yep.
‘In about 2007 or 2008, [the applicant]’ – this is your mother's words: ‘Asked me and the kids to move. I agreed to go. I only stayed there for about three weeks. [SN] – your older sister?---Yep.
And her boyfriend [named] staying with us for about a week. They stayed in the bus in the yard. ‘We only ended up staying there for a few weeks because it didn’t work out’. ‘I moved back to my old house [at the first address] with all of the children?’---Yep.
You understand my point?---Yes.
Your mother’s account is that the idea of moving everyone to [the farm] to join [the applicant] that experiment lasted weeks?---Yes.
But you would have it that you were up there for more than a year, possibly two years?---About a year, yes, because – well - - -
Who’s right, mum or you?---Well it’s – it’s a far [scil, fair?] guess from her as to mine [scil, time?], you’re correct. Um, I’m just sure – I have to think about it here.
…
Did the rest of the family, that is to say mum, [SN], [KN], [JN], did they stay a full year or more at [the farm], or did they stay a matter of weeks as your mother would have it?---Um I’m not too sure but like just – like I’ve said going by my memory it’s about a year that we were at [the farm].

During cross-examination, JN gave the following evidence concerning the amount of time spent living at the farm:

[W]hat I’m trying to be clear about is, my understanding is that he, [the applicant], left [the first address] and set himself up, including his trucks and other equipment at the farm ... And after some months, you, your brother and two sisters and mum moved out there to join him?---I’m pretty sure he moved in and we moved in the same time he did.
Do you have a recollection of how long, having moved in, the six of you, two adults and four children, how long you stayed together as a family of six at [the farm]?---At [the farm] I’d say at least a month or two, max. Like it wasn’t like, cause mum had enough by that point and she’s pretty much up and left.

KN’s evidence when cross-examined was as follows:

And do you have a recollection of visits to [the farm] before the family moved up?---No.
You have a memory of how long all up you, [SN], your brothers and mum stayed or lived at [the farm]?---Not exactly the time.
Does two months or less sound about right?---Yes.

SN’s evidence on the issue when under cross-examination included:

Did you leave [the farm] to live with [named boyfriend] at about the same time as the rest of them left [the farm]?---Um, yes.
So you all left – you to go to [named boyfriend] and the rest to [the first address]. How long had all of you, the five of you, mum and your siblings, how long had you been at [the farm] before going back to [the first address]?---Um it’s a fair few months, I can’t really remember, sorry.
Let me try and help you: we’ve heard from your sister that it wasn’t very long, the entire experiment of let’s go up and live [at the farm] was a few weeks maybe a couple of months?---Yes.
Would you agree with that?---I [sic] couple of months I’m pretty sure, yes.
If I suggested it was more like a year and a half, what - - -?---No, I can’t remember, sorry.

The children’s mother, CN, was cross-examined on the topic, and gave the following evidence:

See, I gather that at one stage you said this to police: ‘In about [2007], [2008] [the applicant] asked me and the kids to move to his [farm] property. I agreed to go, and I stayed there for a few weeks. I moved back to my back to my old house [at the first address] with all of the children’?---That’s correct.

Thus, at trial, AN’s evidence ‘going by memory’ was that the family was at the farm for ‘about a year’; JN’s evidence was that he estimated the family stayed at the farm ‘at least a month or two, max’; KN thought ‘two months or less’ sounded ‘about right’; SN, who could not ‘really remember’, thought it was ‘a fair few months’, and was ‘pretty sure’ it was a ‘couple of months’; and CN agreed that she had told police the family was at the farm ‘for a few weeks’.

As I have said, the applicant’s counsel submitted that, had the contents of AN’s statement and his committal been adduced, the applicant would have had an ‘alibi’ to charges 11 to 15. (It will be remembered, that in his statement to police AN said that mutual masturbation ‘happened about four or five times a month for about five months’, and that he thought that they lived at the farm ‘for about a year and a half’; and in his committal evidence, AN stated that the applicant had masturbated him ‘about two or three times a week’ for ‘one or two years’, and he said that he thought that the family had lived at the farm ‘closer to two years’.)[26] Counsel also submitted that the effect of the evidence would also be that there was insufficient proof that the applicant was a ‘domestic partner’ at the time charge 15, incest, was said to have occurred.
[26]See [50]–[51] above.

There is, in my view, no substance in the alibi point. It is plain that trial counsel had a distinct strategy to deal with AN’s evidence concerning the time that the family spent at the farm and the frequency of the sexual activity. That clear strategy can be seen in counsel’s arguments to the jury in his final address. For example, trial counsel argued:[27]

If you study the transcript, you can do the arithmetic. [JN] doesn’t keep count beyond saying he did it whenever he felt like it. [AN’s] got five or six times a month for the two years at [the first address]. Five or six times a month, times 24 months, is something in the order of 150 times. Added to which is [JN] being a victim ‘whenever he … felt like it. Lunch time, early, late’. And on top of that, you’ve got [SN]. [SN] is ‘two or three times a week. I’m not sure, sorry. It was ongoing’.
It can’t be true …

[27]See also [107] below.

In my opinion, it is impossible to say that the forensic strategy that trial counsel adopted with respect to the ‘timing issue’ was incompetent. Indeed, as best I am able to judge, it appears to have been part of a sound strategy.

The ‘domestic partner’ aspect of the ‘timing issue’, and the ‘duplicity issue’ on charge 15, are completely devoid of merit.

Incest charges involving AN — charges 14 and 15 — were laid under s 44(2) of the Crimes Act 1958, and were alleged to have occurred between 9 February 2006 and 31 December 2008. Section 44(2) proscribed sexual penetration with a person under 18 whom a person ‘knows to be the child or other lineal descendant or the step-child of his or her de facto spouse’. A de facto spouse was defined in s 35(1) to be ‘a person who is living with a person of the opposite sex as if they were married although they are not’. Section 3 of the Crimes (Sexual Offences) Act 2006 introduced a definition of domestic partner into s 35 of the Crimes Act 1958, with operation from 1 December 2006. Thus, the domestic partner of a person ‘means a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender)’.

In the written case, counsel for the applicant submitted:

Further the evidence would mean that there was insufficient proof of the date as to whether the applicant was a ‘domestic partner’ at the time charge 15 is said to occur. The evidence supporting this charge … could be prior to [CN] returning to [the first address], but the evidence after [CN] returned to [the first address] without the applicant … could not possibly be a basis for incest. The charge suffered from latent duplicity. The conviction on that charge must be bad.

I pause to note that, at the end of the penultimate sentence in the passage from the written case immediately above, counsel footnoted the definition of ‘domestic partner’ in s 35, and also set out the text of s 50D of the Crimes Act 1958, which creates the offence of ‘Sexual penetration of a step-child’. Section 50D makes it an offence for a person to sexually penetrate the lineal descendant of that person’s ‘domestic partner’. At the time of the alleged offences, however, s 50D was not in operation. It was introduced into the principal act by s 16 of the Crimes Amendment (Sexual Offences) Act 2016, with operation from 1 July 2017. Hence, at the time of the offences alleged against AN, there was no offence of sexually penetrating the lineal descendant of a person’s ‘domestic partner’. The relevant offence, incest under s 44(2), was committed against the lineal descendant of a ‘de facto spouse’.

In oral argument, counsel for the applicant submitted:

Well, if one goes to the actual evidence one would see that there are episodes at [the farm] where there is no evidence that there is a domestic relationship taking place, but there is sexual penetration. Now, in my submission, there’s no distinction between what might otherwise just be a sexual penetration charge and the incest charge, that’s the problem, and that’s where the latent duplicity comes in.

Given that the offence in the present s 50D — which involves the sexual penetration of the lineal descendant of a domestic partner — was not in operation at the time of the alleged offending against AN, there could be no question of any technical duplicity arising as a result of the definition of ‘domestic partner’. At the risk of repetition, charge 15 was a charge of incest committed against the child of a ‘de facto spouse’. There was no issue at trial about whether the applicant and CN were de facto spouses. Nor, sensibly, could there have been. There was ample evidence to establish their status as such. Indeed, it would have been fatuous to attempt to suggest that they were not de facto spouses.[28]
[28]See King v The Queen (2011) 34 VR 106; Sutton v The Queen (2015) 47 VR 496.

Discussion: KN giving SN’s evidence

The fourth particular of incompetence — ‘[KN] giving [SN’s] evidence’ — concerned counsel’s failure to elicit the contents of the DHS record.[29] It was suggested that KN’s complaint in the self-defence class mirrored SN’s allegations of what had happened to her — in circumstances in which the prosecution case with respect to KN was limited to the applicant touching her breast after the dam incident — so much being evidence of concoction or collusion.
[29]See [53] above.

I fail to see that counsel’s failure to adduce evidence of what KN said in her self-defence class could properly be characterised as incompetent. In reaching that conclusion, I agree substantially with the submissions advanced by counsel for the respondent. I consider that competent counsel standing in trial counsel’s shoes may well have foreseen the danger that, by introducing KN’s self-defence class complaint, he ran the risk of introducing evidence of further uncharged sexual offending against KN that the jury might well believe occurred (notwithstanding her failure to complain to police about it). As the respondent’s counsel submitted, KN was not substituting herself for her sister. KN said, what happened to her was ‘nothing compared to what happened to [her] sister’. In order to obtain tenuous evidence going to the issue of concoction or collusion, counsel ran the risk of the jury accepting the truth and accuracy of the allegation of another uncharged act of sexual interference.

As I have said, the respondent’s counsel submitted that to have cross-examined KN on the topic of the self-defence class complaint would have been ‘courageous’. Once more, that is not the description I would have used. It is enough to say that I am unable to see that trial counsel’s failure to adduce the evidence of the self-defence class complaint might not have been the product of a rational forensic decision.

Discussion: SN’s version of the threat

The fifth particular of alleged incompetence related to trial counsel’s failure to cross-examine SN on the location of the shed in which the applicant endeavoured to enslave her.

This particular may shortly be dealt with. I agree with the submissions of the respondent’s counsel that, objectively assessed, the suggested inconsistency is of absolutely no moment. There is much to be said for the notion that the supposedly different versions of what SN had said about where the shed was located could not materially have impinged on her credit, and there thus was no benefit to be derived from cross-examining SN about it. As the respondent’s counsel submitted, when one considers the consistency of what SN had said, her credit might well have been bolstered. It might also be thought that cross-examining on such a trivial matter might convey an atmosphere of desperation to the jury.

I am not persuaded that competent counsel, exercising sound forensic judgment, would have confronted SN with the suggested discrepancies in the course of cross-examination.

Ground 2: The failure to give a forensic disadvantage or propensity warning

Ground 2 has two aspects. The first relates to the judge’s failure to give a forensic disadvantage warning; and the second concerns the judge’s failure to give a ‘propensity warning’. Neither has substance.

Section 12 of the Jury Directions Act 2015 (‘JDA’) requires prosecution and defence counsel to request the trial judge ‘give, or not give, to the jury particular directions in respect of’ the matters in issue and the evidence relevant to the matters in issue. In the instant case, the applicant’s trial counsel asked neither for a forensic disadvantage warning under s 39(1), nor for a ‘propensity warning’. (Counsel also did not seek any ‘other misconduct’ direction under s 29(1).) Notwithstanding the absence of any request under s 12, however, the applicant’s counsel in this Court submitted that the judge should have given both directions. I do not agree.

Turning first to the failure to give a forensic disadvantage warning, s 39(1) of the JDA provides that defence counsel ‘may request under section 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused’. Section 38 defines ‘forensic disadvantage’ as follows:

38 Definition
In this Division—
forensic disadvantage means a disadvantage (that is more than the mere existence of delay) to the accused in—
(a) challenging, adducing or giving evidence; or
(b) conducting his or her case—
because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial.

Importantly, s 39(2) provides that the trial judge ‘may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage’.

In this Court, counsel for the applicant relied on s 16(1) of the JDA, which provides that the trial judge ‘must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12’. Counsel submitted that, despite trial counsel’s failure to seek one, in light of s 16(1) the trial judge should have given a forensic disadvantage direction. That submission necessarily entails the contentions that the judge should have concluded that there were substantial and compelling reasons for giving a direction as a result of being satisfied that the applicant suffered a significant forensic disadvantage. Attempting to make good those contentions, counsel relied on several factors, including: that some of the offending dated back to 2003; the offending’s ‘unlikeliness’; and the practical inability to raise an alibi.

In Robbins,[30] the Court considered the circumstances in which a forensic disadvantage direction ought to be given. Having carried out a review of authority, and of the relevant JDA provisions, the Court observed:[31]
[30]Robbins v The Queen (2017) 269 A Crim R 244 (Tate and Whelan JJA and Macaulay AJA) (‘Robbins’).
[31]Ibid 270–1 [186].

In the light of this review, it seems to us that the relevant principles applicable here are as follows:
(1) The origins of the relevant concern are to be found in historic sex offence cases and the decision of the High Court in Longman.^[[32]]
(2) The forensic disadvantage governed by s 39 is a disadvantage occurring because of the consequences of delay between the alleged offence and the trial.
(3) The disadvantage must be of a forensic nature; that is, a disadvantage suffered by the accused in challenging, adducing or giving evidence, or in conducting the accused’s case.
(4) The direction can only be given if the trial judge is satisﬁed that the accused has experienced a signiﬁcant forensic disadvantage.
(5) There are disadvantages as a consequence of delay which do not warrant a direction under s 39. These disadvantages can be adequately dealt with in counsels’ addresses and do not require a judicial direction.
(6) The accused has the onus of establishing that the consequences of delay give rise to a signiﬁcant forensic disadvantage.
(7) It is incumbent upon the accused to identify the particular risks of prejudice which constitute the signiﬁcant forensic disadvantage.
(8) A loss of opportunity to obtain evidence of a contemporaneous medical examination which had occurred (Pate),^[[33]] or medical or other scientiﬁc investigations which might have been undertaken (Jurj),^[[34]] or expert medical opinion which might have been obtained (Greensill),^[[35]] could, in a particular case, constitute a signiﬁcant forensic disadvantage.

[32]Longman v The Queen (1989) 168 CLR 79.

[33]Pate v The Queen (2015) 250 A Crim R 425.

[34]Jurj v The Queen [2016] VSCA 57.

[35]Greensill v The Queen (2012) 37 VR 257.

Plainly, before a forensic disadvantage direction is required under s 39 there must be more than the mere existence of delay. As s 38 makes clear, there must be disadvantage to the accused in challenging, adducing or giving evidence, or conducting his or her case, ‘because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial’. Moreover, for a judge to give the putative direction, he or she must be satisfied that the relevant disadvantage is significant.

In my view, nothing in the trial compelled the conclusion that the applicant suffered a significant disadvantage in conducting his case, or in challenging or adducing evidence, as a consequence of the time that had elapsed between the alleged offending and trial. A few passages from the final address of counsel suffice to illustrate the point that the applicant laboured under no significant forensic disadvantage:

The problem with the [first address] charges is, there’s not enough room. Because they all happen within the four walls of the house. And the problem with the [farm] charges, and there are slightly more [farm charges] than there are [first address], is there’s not enough time. Because the mother says, ‘After a few weeks, we all returned to [the first address], me and all the children’.
…
This is what we heard from [CN], their mother. ‘After [the applicant] left [the first address], is it fair to say that you had no hint at all that there’d been sexual misconduct by [the applicant] towards any of your children?’ ‘No, I had no hint’.
This is in circumstances where we now know that [CN] was a stay-at-home mum, [CN] stayed in the front bedroom as portrayed in the photo book, [CN] would have the bedroom door from the master bedroom to the living area of the house open because she’s claustrophobic. …
…
If you study the transcript, you can do the arithmetic. [JN] doesn’t keep count beyond saying he did it whenever he felt like it. [AN’s] got five or six times a month for the two years at [the first address]. Five or six times a month, times 24 months, is something in the order of 150 times. Added to which is [JN] being a victim ‘whenever he … felt like it. Lunch time, early, late’. And on top of that, you’ve got [SN]. [SN] is ‘two or three times a week. I’m not sure, sorry. It was ongoing’.
It can’t be true, all within the house portrayed in Pictures 1 and 2 in the photo album. There are other factors to consider. Never mind the sheer quantity. This is at a time when it’s common ground, coming from Mother, that he, [the applicant], was in the early stages of running his own business, that there was long hours to be worked, that he was gone early and home late, and had to go to bed early because he had to work the next day, and was working five, perhaps six, perhaps seven days a week. And Mum wasn’t working. Mum was a stay-at-home mum. She was helping with the books from time to time for [the applicant’s] business. And she conceded, as the others did, that, ‘Whatever else you say about [the applicant’s], he was not lazy’.
So it begs the question: when did he get the time and/or the energy to do all this on top of running his own business? All within that house, which, looking at the pictures, you don’t need to me suggest its high-risk. Of course it’s high-risk. One person coming to the toilet, one person coming past saying, ‘What’s that torch on for?’
…
And I asked [AN], ‘Why didn’t you do that [go to bed early] from the very early stages, and you would’ve all but stopped it before it got going?’ And he had no answer, because the evidence is absurd. ‘I’m being abused month after month after month after month after month. Why am I being abused? I’m making the same mistake of staying up late when the others have gone to bed. I know what I’ll do. Aha, I’ve got it. I’ll go to bed early’.
There’s not enough time in [the farm], and you can tell there’s not enough time, and the odd man out on how long was spent at [the farm] is [AN]. Because his mother’s quite clear it was a matter of a few weeks. Even his brother [JN] said, when I asked him, ‘How long were the family at [the farm]?’, his answer was, ‘One, two months max’.
The boys agree that they enjoyed [the farm] for a time. The girls hated it from the beginning. And [SN] has, it would seem, hated – although that’s not her word, disliked [the applicant] from the start. And her plan from the start was to get rid of him. And she is to be the subject of sympathy, because the lies about the assault didn’t work so she’d dug herself into a deeper hole, and she’s to be pitied.

Turning to the second aspect of ground 2 — the contention that a miscarriage of justice resulted from the trial judge failing to find substantial and compelling reasons to give an ‘anti-propensity’ warning — counsel for the applicant submitted that the judge should have warned the jury not to reason from the evidence that the applicant was ‘the kind of person’ who is likely to have committed the offences charged (sometimes styled a ‘Grech direction’).[36] Counsel submitted that, given the number of complainants and number of charges, and further given the allegation that the applicant raped AN (charge 21), in the absence of an appropriate Grech style propensity warning the jury might reason that the applicant was the kind of person likely to have committed the charged conduct. In the written case, counsel also submitted that ‘the applicant was entitled to a propensity direction additionally to the section 29 JDA direction as to the restriction of tendency reasoning’.
[36]R v Grech [1997] 2 VR 609; R v DCC (2004) 11 VR 129, 131 [2]; Lancaster v The Queen (2014) 44 VR 820, 847 [95].

I would not uphold these submissions. In my view, the directions that the judge gave were sufficient to ameliorate any risk of improper reasoning.

The first obstacle standing in the path of the acceptance of counsel’s submissions — as the formulation of the ground acknowledges — is that counsel did not seek any direction under s 12. As has been seen, in the absence of a request under s 12, the trial judge could only have given the putative direction if he considered ‘that there are substantial and compelling reasons for doing so’. In my view, however, there were no substantial and compelling reasons requiring the giving of such a direction.

As I have said, counsel submitted in writing that the trial judge should have given a propensity direction ‘additionally to the section 29 JDA direction’. Section 29(1) of the JDA provides:[37]
[37]Emphasis added.

29 Direction to avoid risk of improper use of other misconduct evidence
(1) If other misconduct evidence (other than tendency evidence) is adduced, the prosecution or defence counsel may request under section 12 that the trial judge warn the jury not to use the evidence as tendency evidence.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.
(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as tendency evidence.

Where ‘other misconduct evidence’[38] — ‘other than tendency evidence’ — is adduced by the prosecution, s 27(1) permits defence counsel to request a direction under s 12. If such a direction is requested, s 27(2)(c) provides (among the other things set out in the subsection) that the judge must ‘direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused’.
[38]Section 26 provides:
other misconduct evidence means —
(a)   coincidence evidence; or
(b)   tendency evidence; or
(c)    evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or
(d)   evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed; …

Since the prosecution relied on tendency evidence in the applicant’s trial, given its clear terms, there was no — or, at least, very little — scope for s 27(1) to operate. Nevertheless, it is clear that the judge was astute to give a number of directions designed to ameliorate the risk of improper reasoning. Thus, in his initial directions, having told the jury that the prosecution relied on tendency evidence, the judge directed that[39]

you must keep that evidence in perspective, it’s only one part of course to the prosecution case, and it’s not enough to convict an accused person if you find that he did have that tendency. You can only find him guilty of the charge if the you are satisfied of his guilt of that particular charge beyond reasonable doubt, based on all of the evidence.
So – well it might be that the prosecution says, well, he’s got a tendency to be interested in children under 16. And if you find that he has that tendency, you can use that evidence to find that it is more likely that he committed the offences. It didn’t mean that he did commit them, you then have to deal with each offence individually. So that’s the way that evidence is put. And, of course, keeping in mind you must not decide cases on the basis of feelings or sympathy or prejudice, et cetera and that evidence is only led for that limited purpose of showing that tendency, as I have described.

[39]Emphasis added to this and following passages.

Further, in his charge, the judge instructed the jury that they

must consider each charge in light of the evidence which applies to it. This is because some of the evidence you have heard in this case is only relevant to one charge or another. As I said if a particular piece of evidence is only relevant to one charge, you may only use it when deciding whether or not the accused is guilty of that charge and must not consider it in relation to the other. The tendency argument does not affect that but it has a different purpose which I will explain in a moment.

Returning to the topic of tendency evidence, the judge directed the jury as follows:

Now, you must keep that evidence in perspective. It is only one part of the prosecution’s case. It is not enough to convict [the applicant] if you find he had the tendency. It does not automatically follow. You can only find him guilty of a charge if you are satisfied of his guilt of that charge beyond reasonable doubt, based on the whole of the evidence. So it is one part of the case that the prosecution says you can rely on to assist you in determining whether or not he is guilty of the charge.
As I have told you, you must not decide the case on the basis of feelings or sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing that tendency to have a particular state of mind makes it more likely that he has committed the offence. You must not use the evidence for any other purpose.

A number of things may be drawn from the judge’s directions. First, he directed the jury that a finding that the applicant had the relevant tendency was ‘not enough to convict’. Secondly, he instructed the jury that the evidence on each charge must be considered separately, and that a finding that the applicant had the tendency alleged does not ‘mean that he did commit them’. Thirdly, the judge specifically told the jury that the relevant evidence was ‘only led for that limited purpose of showing that tendency’, and the jury ‘must not’ decide the case on the basis of sympathy or prejudice. Fourthly, the judge directed the jury that the tendency evidence could only be used for the ‘limited purpose of showing [the applicant’s] tendency to have a particular state of mind’, and that they ‘must not use the evidence for any other purpose’.

Despite these directions, the applicant’s counsel in this Court maintained that the judge should have found that there were ‘substantial and compelling reasons’ for giving a Grech style propensity direction, even though no request for a direction was made. The failure to give such a direction, counsel submitted, has occasioned a substantial miscarriage of justice.

Approaching the second aspect of ground 2 for the sake of argument on the basis that a Grech direction could theoretically have been given,[40] I consider that the jury would very likely have been completely bemused by such a direction. Indeed, even the most able logician — attempting faithfully to apply a judge’s instructions — would be bewildered by a direction warning that evidence could not be used to reason that the applicant was the kind of person likely to have committed the offences charged, which was to be applied in parallel with a direction that the same evidence could legitimately be used to reason that the applicant had a tendency to have a particular state of mind. A Grech direction warns the jury not to infer from the evidence that the accused is the kind of person who is likely to have committed the offence charged, yet tendency evidence is used to prove that a person has (or had) a tendency to act in a particular way, or to have a particular state of mind.[41] As Gageler J put it in Hughes:[42]

Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.

[40]See, eg, R v Best [1998] 4 VR 603, 615–16; R v DCC (2004) 11 VR 129, 131–2 [5].

[41]Evidence Act 2008, s 97(1).

[42]Hughes v The Queen (2017) 263 CLR 338, 365 [70].

Prior to the promulgation of the Evidence Act 2008, Byrne AJA in BJC discussed the difficulty of giving a sensible propensity warning to a jury in a single complainant sex case in which uncharged acts were led in proof of sexual attraction. It is instructive to give attention to his observations:[43]

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

[43]R v BJC (2005) 13 VR 407, 420 [37] (emphasis added; citation omitted). See also Lancaster v The Queen (2014) 44 VR 820, 847 [95]–[96].

By parity of reasoning, if there remains room in particular cases involving tendency evidence to give a Grech style direction, it can only be to bring home to the jury that the accused has a specific tendency, and that the jury cannot reason that he or she has a general propensity towards misconduct. Echoing what Byrne AJA said, however, if there be a point of distinction between the two, it is exceedingly subtle.

In the present case, any directions concerning the theoretical distinction there may be between prohibited propensity reasoning and legitimate tendency reasoning, would have been far too esoteric for the jury to comprehend and apply. Hence, it is impossible to conclude that there were substantial and compelling reasons for giving a propensity direction. Indeed, I consider that there were substantial and compelling reasons for not giving such a direction. Rather than the absence of any propensity direction being productive of any substantial miscarriage of justice, I consider that the opposite is true.

Ground 2 is without merit.

Ground 3: Unreasonable verdicts on charges 11 to 15

Ground 3 claims that the convictions on charges 11 to 15 — all of which relate to AN — are unreasonable.

In the written case, the applicant’s counsel relied on the various matters that he advanced in support of the ‘timing issue’. It was submitted that the ‘nebulous nature of the evidence of [AN] when confronted with the evidence of all other participants as to the period of time at the farm … makes his version of events unlikely, sufficient to ensure that it was not open to a jury acting reasonably, to have convicted’. Counsel also submitted that ‘a similar situation as to whether there was a “domestic relationship” in existence at the time of charge 15 should lead to a similar result’.

AN gave the following relevant evidence:

[PROSECUTOR]: And I want to ask you about the lounge room out at [the farmhouse]. Did anything occur between you and [the applicant] in the lounge room at [the farmhouse]?---Yes.
Well, did you explaining [sic] to the jury what happened?---Um so like on probably quite a few occasions.
Can you remember the first time that something happened between you and him in the lounge room at [the farmhouse]?---Um so I’m pretty sure so what happened was, you know, obviously everyone has gone to bed again, a similar situation to the first time happening at [the first town], um, but this time he um has – you know he has my pants down and his pants down. He’s masturbating me but and you know, obviously gets me to masturbate him. That goes on for a while until he – he ejaculates, um, and then by the time – by the time I’m pretty that finished I was wanting to go to bed, but he wanted me to ejaculate ‑ that was the only way I could go to bed any quicker.
And did that happen?---Yes.
And did that happen on other occasions after this first incident at [the farmhouse] that you have just described?---Yes.
How frequently did that happen?---Probably, um, five times – five to six times a month.
All right. Did you develop a technique to try and avoid this happening?--- Um, yes, I decided to start going to bed earlier, you know, trying to beat one or two people into bed, so to avoid anything like this happening or go to the bed that everyone else is going to bed and not be alone – left alone with him.
And so you did that, did you?---Yep.
Well, after you started that process, did anything happen in the room, in your bedroom?---Um so it wasn’t – I’m pretty sure it wasn’t long later he started coming into the bedroom with a torch, and obviously I was on the bottom bunk, my brother was up top.
Yes?---Um, he – he would drag me out – like he would obviously like you know start touching me and whatever.
What about the torch, what was he doing with the torch?---He was shining it, he was shining it like down near, um, where my penis and my genitals are and stuff.
Yes?---And you know like there was – um, so he’d touch me down there and all that stuff and then eventually take me into the lounge room.
And what would happen in the lounge room?---Um a later that time, um, later that time he forced me to have oral sex with him.
Tell how, tell us about that. What was involved in that activity?---Um he was he would have – he would have my mouth put on his penis.
And how would he achieve that?---Um by like kind of like forcing my head down sort of thing.
...
Sorry I interrupted you. Keep going, yes, he’d do that?---And you know while that was happening, um, he’d do the same thing back to me.
What do you mean by that?---Um he would put his mouth on my penis.
Did you say anything to him about that?---Um yeah I didn’t like – when he was trying to like force me down, obviously on like – on to his penis, you know, I’m telling you don’t want – I don’t want to do this, you know. It’s, um, I don’t see why I have to do it sort of thing. I was obviously telling him no, sort of thing.

Yes. And how old were you when that first happened, the oral sex?---Um about 14.
Yes. And what did you think about all of that happening?---Um obviously it was unusual and strange and like you know, I’m starting to pick up an idea of like, you know, this doesn’t seem right, um, but it was – I think the most scary part was like how could I tell someone.
Sorry?---Like the scariest part was like how can I tell someone.
What was stopping you telling someone?---Um there was – now it was becoming an embarrassment.
Yes?---You know, it’s something like you know, I don’t just want to go out there and go, oh, this is what’s happened and then have someone judge me. I just wouldn’t – I couldn’t accept that.
So you couldn’t tell anyone?---No.
And how frequently would that activity of oral sex between the two of you occur?---Um well after the first time it would happen like on – it started happening like an occasional sort of thing, or a little while until, um – until maybe not long after we moved out or something.

As earlier discussed, AN, JN, KN and SN all gave evidence as to how long the family resided at the farm.[44] I need not repeat the import of that evidence, save to say that counsel for the applicant relied upon it in support of the contention that the convictions on charges 11 to 15 were unreasonable.
[44]See [79]–[84] above.

In Pell, the High Court recently reaffirmed the authoritative statements in M,[45] as to the manner in which a complaint that a jury’s verdict is unreasonable, or cannot be supported having regard to the evidence, is to be resolved. The Court observed:[46]

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence,[47] in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

[45]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).

[46]Pell v The Queen (2020) 376 ALR 478, 486 [39] (citation as in original).

[47]Section 276(1)(a) of the Criminal Procedure Act 2009.

Despite there arguably being some variation in the witness accounts as to the time the family resided at the farm, in my view it was well-open to the jury in the present case to accept AN’s evidence concerning the activities that were the foundation of charges 11 to 15. Proceeding on the basis that the jury assessed AN’s evidence to be credible and reliable, nothing in his evidence, or in the evidence of the other witnesses as to the ‘timing issue’, persuades me that there are any inconsistencies, discrepancies or other inadequacies of such a nature that necessarily should have led the jury to have a reasonable doubt about the applicant’s guilt.

Acknowledging the fact that the witness accounts as to the time that the family lived at the farm might be said to vary, and that the witnesses had different memories (mostly vague) as to the time they lived there, I consider any discrepancies to be a mere bagatelle (and I consider that the jury too would have regarded them as such). The differing memories of the witnesses as to the time spent at the farm are an insubstantial thread upon which to hang the contention that the impugned verdicts are unreasonable.

AN’s essential narrative was left undisturbed by the disparities in the witness accounts as to the ‘timing issue’. The applicant has failed to satisfy me that the

relatively minor disparities relied upon were such that the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant’s guilt. Moreover, for the reasons earlier discussed, there was nothing in the ‘domestic relationship’ argument.

I consider ground 3 to be wholly without substance.

Conclusion

Leave to appeal against conviction must be refused.

BEACH JA:

I have had the benefit of reading the reasons for judgment of Priest JA. I agree with his Honour that the applicant’s proposed grounds of appeal are not reasonably arguable and leave to appeal should therefore be refused. I wish to say something, however, in relation to proposed ground 1 which asserted that a substantial miscarriage of justice occurred as a result of the incompetence of the applicant’s trial counsel in his conduct of the trial. In my view, there was absolutely no merit in that assertion.

The ground alleging that trial counsel was incompetent was formulated first in the applicant’s original application for leave to appeal dated 14 June 2019. It was then revised in an amended application dated 4 December 2019,[48] and later further revised in another amended application dated 10 September 2020.
[48]Curiously, while the third page of the document is signed and dated 4 December 2019, the second page is also signed but dated 6 December 2019. Nothing, however, turns on this.

A striking feature of the applicant’s three formulations of his incompetence ground is the microscopic analysis that trial counsel’s conduct appears to have been subjected to. An equally striking feature is the apparent acceptance by the drafter of the application for leave to appeal, and its subsequent iterations, of each and every assertion made by the applicant in his affidavits sworn in this proceeding, no matter

how inherently unlikely or unbelievable.

At the conclusion of oral argument, counsel for the applicant sensibly submitted that, in the light of the way he finally put his client’s case on incompetence, it was not necessary for this Court to resolve factual disputes between the applicant’s evidence and the evidence of trial counsel. That submission relieves me of the burden of having to say, and to provide reasons for concluding, that a good deal of the applicant’s evidence could not be believed, and some of it was patently false.

The applicant faced 30 charges of offending against four children. When one reads the entirety of the trial transcript one is left with the impression that, far from conducting the trial incompetently in any way, the applicant’s trial counsel provided him with a professional and well thought out defence.

In substance, that defence was that none of the complainants could be believed because the first address was too small for it to have occurred and gone undetected by the complainants’ mother or others in the house; and there was insufficient time for all of the offending alleged to have occurred at the second address to have actually occurred.

In advancing that defence, trial counsel was keen not to take any step (and in particular in the cross-examination of the complainants) that might provide an opportunity for them to give evidence that the expert (Dr Flower) would then say was indicative, or a marker, of sexual abuse having occurred. To that end, cross-examination of any of the complainants about a retraction or retractions that may have been made to their grandmother would not have assisted the applicant in his primary defence.

Even if one thought that this issue was debatable, and that reasonable minds might differ in relation to it, that is a far cry from establishing that the course taken by trial counsel was incompetent — much less that it led to a miscarriage of justice, let alone a substantial miscarriage of justice.[49] Moreover, while not determinative on the issue of competence, it is to be observed that, following the course taken by trial counsel, the jury ultimately found the applicant guilty of offending involving only two of the four complainants.
[49]Cf ss 276(1)(b)–(c) of the Criminal Procedure Act 2009.

A significant feature of the applicant’s incompetence argument was advanced by reference to discrepancies said to exist between either statements and committal evidence on the one hand, and evidence given at trial, on the other hand. The effect of the applicant’s submissions appeared to be that any discrepancy, no matter how peripheral it might be to the issues in dispute, should have been identified by counsel and made the subject of cross-examination at trial. To that end, it appeared that the applicant’s counsel in this Court had trawled through the relevant depositions and transcripts for the purpose of identifying each and every apparent discrepancy which trial counsel failed to raise in the course of the trial.

Such an approach is to be deprecated in the strongest terms. Trials would occupy even more time than they currently occupy if trial counsel, in order to avoid some later suggestion of incompetence, felt it necessary to cross-examine on every difference and discrepancy that might be identified between what a witness says at trial and what that witness may have said in a statement or at committal. While there is a place for cross-examination of that kind when an identified difference or discrepancy is important, tedious cross-examination about peripheral discrepancies is to be discouraged — if for no other reason than it is often counter-productive, running, as it does, the risk of irritating the triers of fact (the jury).

All of that said, I should for the sake of completeness refer to the applicant’s assertion of failing to put one particular matter to the complainants at trial, namely, that had the retractions allegedly made by them to their grandmother ‘not been true they would never have moved to the applicant’s farm with the applicant without complaint’. While it is true that this proposition was not put to the complainants at

trial, there is no substance in the assertion that the failure to put it amounted to incompetence.

The proposition that the failure to put that suggestion to any of the complainants at trial deprived the applicant of a chance of acquittal on any of the charges he faced is without merit. It was, at best, a small point which could have easily been answered at trial by reference to the complainants’ ages and circumstances at the time of the alleged offending. Moreover, putting it would also have risked cutting across the defence actually being run by trial counsel, by again opening an area which could have been the subject of unfavourable evidence by Dr Flower in relation to the behaviour of children who are the victims of sexual offending.

Finally, it is noteworthy that this particular assertion of incompetence only emerged in the final version of the applicant’s application for leave to appeal — a document, which was prepared more than 12 months after the applicant’s present counsel had gone over the trial transcript in the detail necessary to produce the allegations of incompetence in the original application for leave to appeal. In the circumstances, it might be thought to be a little hard on trial counsel to allege that he had been negligent in failing to consider putting a point that it took the applicant’s appeal counsel more than a year to think of and insert into his argument. On the other hand, perhaps the raising of this point merely reflects the air of unreality that pervaded the allegations of incompetence made against trial counsel in this Court.

T FORREST JA:

For the reasons given by Priest JA, I agree that the application for leave to appeal against conviction should be refused. I also agree with the further reasons of Beach JA.

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[2020] VSCA 270

22 October 2020