Toby Quinn (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0071

TOBY QUINN (A PSEUDONYM)[1]	Appellant
v
THE QUEEN	Respondent

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

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JUDGES:	WEINBERG and PRIEST JJA, and McDONALD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2018
DATE OF JUDGMENT:	9 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 82
JUDGMENT APPEALED FROM:	DPP v [Quinn] (Unreported, County Court of Victoria, Judge Tinney, 11 October 2016)

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CRIMINAL LAW — Appeal — Conviction — Sexual penetration of and indecent acts with a child under 16 — Other misconduct evidence — Text messages sent between appellant and complainant — Failure of trial judge to give anti-propensity warning — Whether substantial miscarriage of justice resulted — Appeal allowed — Jury Directions Act 2015 ss 16, 29.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	Tony Hargreaves and Partners
For the Respondent	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA:

Introduction

Substantially for the reasons given by McDonald AJA, whose judgment we have had the benefit of reading in draft, we agree that grounds 1 and 3 cannot be upheld, but seek to add some observations of our own.

We also agree that ground 2 should succeed, but we do so principally for reasons that differ from his Honour’s. Ground 2 should be upheld, save with respect to the conviction on charge 1. We thus would allow the appeal; set aside the convictions and sentences on charges 2, 3, 4, 5 and 6; and order that there be a new trial on those charges. As will become clear, however, we are of the view that conviction on charge 1 was inevitable, so that the appeal with respect to that charge must be dismissed.[2] Our reasons for those conclusions follow.
[2]Given that the conviction on charge 1 will stand, it will be necessary to make orders with respect to the appellant’s sentence.

Given his Honour’s thorough treatment of the evidence, the course of the trial and the submissions made in this Court, we are largely absolved from their repetition, save to the extent necessary to make our reasons readily comprehensible.

The admission of the text messages

Somewhat economically expressed, ground 1 asserts that a ‘substantial miscarriage of justice occurred as a result of the learned trial judge admitting into evidence Exhibit B’.

Prior to trial, the prosecution flagged an intention to rely upon a large number of text messages between the mobile phones of the appellant and complainant (‘SS’) — to a large extent, reflecting their sexual desire for each other — in the period of six months following the time when the charged acts were alleged to have occurred. Over objection by defence counsel, the trial judge ruled the whole body of the text messages to be admissible. From the body of text messages ruled admissible, however, the prosecution ultimately sought to rely on a ten page sample of text messages — extracted from the whole body of messages — relating to a period in late April 2015.

In this Court, counsel for the appellant in essence submitted that the evidence of the text messages, used for the purpose of establishing a sexual relationship between the appellant and SS, was — despite the prosecution’s expressed attitude — tendency evidence, which owed its admissibility to ss 97(1) and 101(2) of the Evidence Act 2008 (‘the Act’). Counsel submitted that, notwithstanding that the prosecution eschewed any reliance on tendency reasoning, by seeking to demonstrate the existence of a sexual relationship between an adult and a child the prosecution invited reasoning that the offending was more likely to have occurred by reason of the appellant’s ‘guilty passion’ for the complainant.[3] Thus, so it was submitted, reliance upon an accused’s sexual desire for a child complainant, as making the allegations more likely, goes beyond ‘context evidence’, and involves tendency reasoning.[4]
[3]R v Beserick (1993) 30 NSWLR 510, 515 (Hunt CJ at CL); R v Vonarx [1999] 3 VR 618, 622 [13] (Winneke P, Callaway JA and Southwell AJA).
[4]R v AH (1997) 42 NSWLR 702, 708-9 (Ireland J).

These submissions cannot be upheld.

No matter the criticisms that might be levelled at the recognised distinctions,[5] a substantial body of authority holds that evidence that places relevant events in their true context, as part of the essential background, is not caught by the provisions of ss 97 and 101(2) of the Act.[6] This kind of context evidence may be tendered to explain the circumstances of the offence charged, so that a complainant is able give a full account, and so that his or her description of the charged conduct will not appear ‘out of the blue’ and inexplicable on that account.[7] Such evidence may also assist in explaining why the complainant did not complain in a timely manner about the offending, thus allowing the prosecution to meet a question which would naturally arise in the minds of the jury.[8]
[5]Murdoch (a Pseudonym) v The Queen (2013) 40 VR 451, 474 [93] (Priest JA). Cf Velkoski v The Queen (2014) 45 VR 680, 709–10 [125]–[127] (Redlich, Weinberg and Coghlan JJA).
[6]R v AH (1997) 42 NSWLR 702, 708–9; R v Lock (1997) 91 A Crim R 356; R v Fordham (1997) 98 A Crim R 359, 367; Conway v The Queen (2000) 98 FCR 204, 233 [97]; R v Toki (No 3) (2000) 116 A Crim R 536, 540–1 [24]–[26].
[7]Roach v The Queen (2011) 242 CLR 610, 624 [42] (French CJ, Hayne, Crennan and Kiefel JJ).
[8]For example, see Steadman v The Queen (No 1) [2013] NSWCCA 55, [10]; Qualtieri v The Queen (2006) 171 A Crim R 463, 487 [80].

When evidence is tendered simply to demonstrate the sexual desire of an accused for the complainant, it has been classified as relationship evidence, not caught by ss 97 and 101(2). Evidence showing sexual interest is not regarded as relationship evidence, however, but as tendency evidence for the purposes of ss 97 and 101(2), when it supports an inference that the accused not only had a sexual attraction for the complainant, but was prepared to act on it (the distinction being that the mere fact that the accused has a sexual attraction to a particular person does not necessarily reveal a tendency to gratify that attraction).

In Leonard,[9] Hodgson JA observed that evidence of a sexual relationship between a complainant and the accused, beyond the acts charged, had been admitted so as to place the evidence of the charged acts into their true context, as part of the essential background against which the evidence of the complainant (and of the accused) necessarily fell to be evaluated; and also so as to demonstrate the sexual desire of the accused for the complainant, such evidence being directly relevant to proving that the offence charged was committed. Hodgson JA then said:[10]
[9]R v Leonard (2006) 67 NSWLR 545 (‘Leonard’).
[10]Leonard, 556 [48]–[52] (emphasis added).

In R v AH^[[11]] and Qualtieri,^[[12]] it is suggested that such evidence may be admitted for either of two purposes, and that if it is admitted for one purpose it is to be characterised as relationship evidence, while if it is admitted for the other purpose, it is to be characterised as tendency evidence so that the requirements of s 97 and s 101 of the Evidence Act have to be satisfied.
[11]R v AH (1997) 42 NSWLR 702.
[12]Qualtieri v The Queen (2006) 171 A Crim R 463.
However, it does seem to me that, in some cases, it may be appropriate to draw further distinctions. It seems to me that, where a man is charged with particular sexual assaults against a complainant, evidence that he committed similar assaults against the complainant on other occasions could be relevant in at least three different ways, only one of which would be as tendency evidence:
(1) It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant’s account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on these particular occasions.
(2) It may be relevant in supporting an inference that the accused was sexually attracted to the complainant, so that he had a motive to act in a sexual manner towards the complainant.
(3) It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing sexual assaults.

Categories (1) and (2) depend entirely on the other sexual assaults being committed against the same person. Category (3) does not depend entirely on that, although generally evidence used for this purpose can have strong probative value only if the other assaults are against the same person.
In my opinion, use of the evidence for the purpose (1) is plainly use as relationship evidence. Use of the evidence for purpose (3) is use as tendency evidence.
In my opinion, use of the evidence for purpose (2) is not use as tendency evidence: it is rather evidence supporting an inference that the accused had motivation to act as charged. Evidence of a similar kind could be provided by a letter from the accused declaring sexual attraction to the complainant, in the absence of evidence that the accused had actually done anything to or with the complainant. Evidence used in this way might be called relationship evidence or it might be called motivation evidence.

In the present case, the text messages — with one exception — were led so as to support the inference that the appellant was sexually attracted to SS, so that he had a motive to act in a sexual manner towards her. As such, the text messages did not owe their admissibility to ss 97(1) and 101(2) of the Act.

For these reasons, the first ground cannot be upheld.

Error in leaving a text message as an admission of guilt

It is convenient to turn next to ground 3, which claims that the ‘trial judge erred in leaving Exhibit B to the jury as an admission of a sexual relationship which went directly to guilt’.

As we later discuss,[13] the text messages of 28 April 2015, between 12.07 pm and 12.21 pm, contain a clear admission of guilt. The judge gave a Burns[14] direction with respect to these messages (and another passage, dated 26 April 2015, starting at 12.07 pm, in which the appellant wrote: ‘I miss your lips … I love them … Do we sleep with clothes or naked?’).
[13]At [41]–[43] below.
[14]Burns v The Queen (1975) 132 CLR 258.

As formulated, ground 3 cannot be upheld. As we later explain, the text messages contain a clear admission of guilt. Furthermore, having read the directions in the charge relating to the text messages, we are left in no doubt that the jury were properly instructed as to the use of the evidence as possible admissions.

Failure to give a propensity warning

Ground 2 asserts that a substantial miscarriage of justice occurred as a result of the judge’s failure to give a direction pursuant to s 29 of the Jury Directions Act 2015 (‘JDA’), prohibiting the jury from engaging in tendency reasoning in relation to the content of Exhibit B.

As we have said, we consider that ground 2 should succeed with respect to all convictions, save that on the first charge. That result must follow, first, because in the particular circumstances of this case, a propensity warning[15] was required irrespective of whether it had been requested.[16] In addition, such a warning was required because a request had been made for it to be given under s 12 of the JDA, albeit there appeared to be some confusion in the discussion that then took place, and ultimately the fact that such a request had been made seems to have been overlooked.
[15]Otherwise referred to as a tendency warning or an anti-propensity warning.
[16]In our view, there were ‘substantial and compelling reasons’, within the meaning of that expression in s 16(1) of the JDA for giving a propensity direction, even if the direction had not been requested under s 12.

A significant feature of this case is the fact that the prosecution explicitly eschewed any reliance upon the evidence of the text messages, Exhibit B, as tendency evidence. Moreover, the judge ruled that the prosecution would not be permitted ‘to go to the jury speaking of sexual interest in [SS], or any of the concepts picked up on a tendency basis’. Thus, when dealing with the evidence of uncharged sexual activity, the judge gave the jury a form of propensity warning:[17]

It is critical that you understand that fact, it is critical that you understand how you can use that evidence and how you must not use it. You certainly must not use this evidence of these other occasions to reason that [the appellant] is the kind of person who is likely to have committed the particularised offences and to use that conclusion as evidence of his guilt of any of those offences; that is totally prohibited.
As I have told you, this is context evidence only, that is all it is, and you must not use it in any way as establishing his guilt of the six charges before you. You must only use it, if at all, consistently with the direction that I have given you, all right? That is absolutely critical that you understand that.

[17]Emphasis added.

It is critical to note that this direction was given in the context of that part of his Honour’s charge that dealt with the need for separate consideration to be given to the various charges. It was preceded by a reminder that the prosecution had led evidence that the appellant and SS had engaged in sexual activity on a number of occasions, other than on the occasions of the three incidents giving rise to the six specific charges.

Specifically, but only in relation to these ‘uncharged acts’, the judge said this:

Now, this evidence is not directly related to any of the offences charged, it is fundamental that you understand that, but of course I am sure you do. The prosecution say that this evidence is relevant because it provides really, the essential background. It places the offending, the alleged offending, the particular acts embraced by this indictment in the true and complete context in which the alleged particular acts took place.
That complete setting is relevant, the Crown argue, as to understanding the complainant’s state of mind as to why she did not complain about the alleged offending; she was in an ongoing relationship and this, the prosecution argues, explains why she made the denial to the two department of human services workers ... It explains also why there was a delay in her coming forward; she was in a relationship.
All right, so that is – well, I will talk about this – this is absolutely critical that you understand a number of things. Firstly, you must keep that evidence in perspective, is it is only one small part of the evidence placed before you. As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice or bias because of what you learn about the accused.
This evidence has been led only for the very limited purpose that I have described. You must not use that evidence for any other purpose. That evidence of those other occasions is not to be used by you in any way in establishing the guilt of the accused man of any of the particular charged acts. It is before you purely as to context.
Remember, as I have said a number of times to you, there are six charges, each relating to a particularised act. To find the accused guilty of any of those charges, you would have to be satisfied beyond reasonable doubt of the happening of that particularised act. If you are not so satisfied, then as I have told you, you must acquit, and that would be the case even if you thought, or indeed, even if you were satisfied that there had been some sexual conduct on some other occasion other than those charged, all right?

The propensity direction then followed. It is clear that the jury would have understood the warning contained within that direction to relate to the uncharged act evidence, but to that evidence alone. The direction was not tied, in any way, to the text messages. It would be quite wrong to assume that the jury would have understood the warning as extending to the contents of Exhibit B. Indeed, it is not disputed that the judge gave no explicit direction or warning directed to the non-misuse of the evidence of the text messages.

There can be no doubt, however, that the text messages constituted other misconduct evidence within the meaning of s 26 of the JDA, which 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; …

So far as other misconduct evidence is concerned, s 29 of the JDA provides for a warning to be given to avoid its improper use. That section is in the following terms:

29Direction 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.

The clear effect of s 29(1) is that, after the close of the evidence and before final addresses,[18] prosecution and defence counsel may each request that the trial judge give a warning that the jury not use other misconduct evidence as tendency evidence. By virtue of ss 14 and 29(2), if prosecution or defence counsel have made a request for a warning, the judge must give the warning ‘unless there are good reasons for not doing so’.[19] It would be a good reason that the judge ‘considers that there is no substantial risk that the jury might use the [other misconduct] evidence as tendency evidence’.[20]
[18]See JDA, ss 11 and 12.
[19]JDA, s 14(1).
[20]JDA, s 29(2).

As we have said, it is not disputed that the trial judge did not give a warning under s 29 with respect to the evidence of the text messages (or, for that matter, any other warning against impermissible reasoning with respect to those text messages). The judge assigned a reason for his not having done so. In a report to this Court, his Honour stated that he simply was not asked to give a direction under s 29.[21] Unfortunately, we consider that the transcript shows that his Honour was mistaken. The record of the trial seems to us to establish that the prosecutor did, in fact, request his Honour, under s 12, to warn the jury not to use the text message evidence as tendency evidence.
[21]The report in part states:
As to Ground 2 … that I failed to give the requested s 29 anti-tendency jury direction in relation to Exhibit B (the text messages), I was not asked to give such a direction in relation to the texts and nor did I believe that it was necessary to give such a direction. There were not substantial and compelling reasons for doing so and I believe that adequate directions were given in other parts of the Charge dealing with those texts.

Thus, when addressing the judge at the conclusion of the evidence as to directions necessary to be included in the judge’s charge to the jury, the prosecutor referred specifically to the text messages, and there was then the following exchange:

[PROSECUTOR]: … Your Honour I’d submit there needs to be a direction under s 29 of the Jury Directions Act.
HIS HONOUR: Hold on, well I’m not asked to give one so – or you are?
[PROSECUTOR]: Well I’d submit that it’s appropriate in as much as there’s context evidence being led Your Honour of the uncharged acts. The other misconduct. And it’s important, particularly given the previous ruling. And the Crown stepped back in April from use of the texts and so forth as tendency evidence.
HIS HONOUR: Yes.
[PROSECUTOR]: So unless Your Honour considers it inappropriate, it seems to me though that it goes beyond the use of the text message to the other uncharged acts.

We note that the prosecutor’s request for a warning regarding the text messages was made against the backdrop that, in the first trial, there had been a request made in terms by defence counsel for a warning regarding the texts. It seems to us the judge’s misconception that no request was made in the present trial may have flown from the direction that the discussion took, during which both counsel apparently were diverted by discussion about uncharged acts.

Nonetheless, it is tolerably clear from the passage set out above that the prosecutor sought to convey to his Honour that a propensity warning should be given in relation to the texts. The prosecutor was diverted mid-sentence, from making that point as clearly as she ought to have done by noting that there would be a propensity direction in any event in relation to the uncharged acts. That was raised, we consider, as support for the direction to be given in relation to the texts as well. The strong defence request for such a direction at the earlier trial, was invoked by the prosecutor as further support for such a direction to be given.

In support of ground 2, the appellant’s counsel submitted that, a request for a direction under s 29 having been made, the warning sought was required to deal with the risk that the jury would engage in tendency reasoning. By virtue of s 14(1) of the JDA, the judge was required to give that direction unless there were good reasons for not doing so. There were no good reasons, it was submitted, for not doing so.

Additionally, counsel submitted that, by reason of s 16(1) of the JDA,[22] the trial judge was required to give the direction even absent a request. In the absence of such a direction, so it was argued, it was almost inevitable that the jury would have engaged in impermissible tendency reasoning. Counsel who appeared before this Court accepted that trial counsel had not taken exception to the judge’s failure to give the direction, but submitted that this must have been an oversight, rather than a considered forensic decision. In support of that submission, he noted that trial counsel, who appeared in both the first and second trials, had earlier sought a direction under s 29, once the application to exclude the texts had been rejected.
[22]Section 16(1) provides:
16 When trial judge must give direction regardless of parties’ views
(1) 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.

These submissions must be accepted.

As we have said, there can be no doubt that the text messages in Exhibit B were, in large measure, ‘other misconduct evidence’ for the purposes of the JDA. Further, it is plain enough that defence counsel in the first trial, and prosecuting counsel in the second trial, made a request under s 12 for a direction on the evidence to ‘warn the jury not to use the evidence as tendency evidence’. Section 14(1) thereby compelled the judge to give such a direction ‘unless there are good reasons for not doing so’ (by s 29(2)).

In light of the exchange between the prosecutor and judge set out above,[23] confusing though it was, it is likely that both counsel anticipated that the judge would give to the jury the warning contemplated by s 29(1). As it happened, the judge did not do so. Self-evidently, the judge also failed to give the reasons for not doing so contemplated by ss 14(1) and 29(2).
[23]At [26].

As we have said, no exception to the judge’s failure to give the necessary warning in relation to the texts was taken by the appellant’s counsel — a matter upon which the respondent placed a deal of reliance in this Court. However, in our view, that can only have been an oversight by both prosecution and defence counsel, both of whom at various stages made it clear that they considered that such a warning should be given. In the circumstances, we do not consider that the failure by either counsel to take exception was the result of any informed forensic decision.

We have no doubt that had his Honour understood the prosecutor’s somewhat garbled submission to constitute a request to give the warning, tailored to the texts, he would certainly have done so. There would have been no reason not to give that warning, and every reason to have done so in terms. The fact that the warning was given in relation to the uncharged acts, where it was of less importance in this case than in relation to the texts, makes that entirely clear.

Although, as we have indicated, the judge gave an impeccable propensity warning with respect to the uncharged acts of sexual activity,[24] no warning of any kind was given with respect to the text messages. This was notwithstanding that there is a vast difference between the evidence of uncharged acts of sexual activity and the text messages. Proof of the uncharged (and charged) acts depended on acceptance of the complainant’s evidence. The defence case was that she was a complete liar, and that being so, the dangers of tendency reasoning, though obviously present, were not perhaps all that great.
[24]See [18] above.

On the other hand, the text messages spoke for themselves. They had enormous potency. No matter the view otherwise taken of the complainant’s credit, the text messages would have enhanced her credibility, and they could legitimately be used for that purpose. But they would also likely have convinced the jury that the appellant was the kind of person who would have engaged in the very conduct with which he was charged.[25] There was thus a significant danger of what has been described as ‘rank propensity reasoning’. In those circumstances, the case cried out for a strong warning against misuse of the text messages. But through a combination of circumstances, none was given.
[25]R v Grech [1997] 2 VR 609, 612.

As we have said, even absent a request under s 29, the circumstances of this case demanded that the judge give a propensity warning to the jury with respect to the text messages. In particular, the jury ought to have been directed not to reason from the evidence of the text messages that the appellant was the kind of person likely to have committed the offences charged.[26]
[26]R v Grech [1997] 2 VR 609, 614; R v Best [1998] 4 VR 603, 618; R v Macfie [2002] VSCA 51, [3]–[7] (Callaway JA), [18]–[19] (Buchanan JA); R v DCC (2004) 11 VR 129, 131-2 [2]–[5]; R v BJC (2005) 13 VR 407, 420–1 [37]–[40]; R v DD (2007) 19 VR 143, 159 [60]; Murdoch (a Pseudonym) v The Queen (2013) 40 VR 451, 481 [129].

The failure to give a propensity warning with respect to the text messages has, with respect to all of the convictions save that on charge 1, occasioned a substantial miscarriage of justice.

Conviction on charge 1 was inevitable

Notwithstanding that we consider that the judge erred by not giving a warning against misuse of the text messages, so that the convictions on charges 2 to 6 cannot stand, we are of the view that conviction on charge 1 was inevitable. Hence, there cannot be said to have been a substantial miscarriage of justice flowing from the appellant’s conviction on that charge.

It will be remembered that charge 1 was founded on the first incident of sexual penetration, which was said to have occurred about two weeks after SS turned 13.[27] The appellant had, on an earlier occasion, kissed SS. He suggested to her that they should have sexual intercourse, given that they had already kissed. SS agreed. That night, in SS’s bedroom, the appellant and the complainant kissed, and removed each other’s clothing. The appellant, wearing a condom, penetrated the complainant’s vagina with his penis, until he ejaculated.
[27]SS was born in 2001.

SS turned 13 years of age in September 2014. Some eight months later, on 28 April 2015, between 12.07 pm and 12.21 pm, there was the following exchange of text messages between the appellant and SS:[28]
[28]Spelling, grammar and punctuation as in the original.

Appellant:What was the date of your first kiss
SS: September the 4th 2014
Appellant: Sex?
SS: August 21 2014 at 9:15 pm
Appellant: It can’t have been
SS: Why?
Appellant: Sex before kiss?
Appellant: And it was after your birthday…
SS: No it wasn’t cause my tongue had not healed yet
SS: Cause I said I would suck you off once it had healed remember and you said yes you will ahah
Appellant: So I were 1…2??
Appellant: You 12
SS: Yes is that bad
Appellant: I’m pretty sure ur wrong…
SS: Ok well maybe I am I don’t know I thought it was then dose it really matter tho?
Appellant:Nah I was jus curious

In our view, the text message of 28 April 2015 contains a virtually complete, and entirely compelling confession by the appellant that he had had sex with SS shortly after her thirteenth birthday, just as she claimed. The content of the text message was unexplained by any other evidence (including any evidence from the appellant). Hence, conviction was, as a matter of practical reality, inevitable.[29] Acknowledging that inevitability of conviction is not necessarily determinative of whether there has been a substantial miscarriage of justice, the failure to give the relevant warning, though having given rise to a substantial miscarriage of justice in relation to charges 2 to 6, did not relevantly give rise to such a miscarriage in relation to charge 1.[30]
[29]Baini v The Queen (2012) 246 CLR 469, 480–1 [29]–[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (‘Baini’); Andelman v The Queen (2013) 38 VR 659, 677-8 [85] (‘Andelman’).
[30]Baini, 479–80 [27]; Andelman, 677-8 [85].

Faced with the text message of 28 April 2015, there simply is no prospect that a reasonable jury could have failed to convict the appellant on the first charge.

Conclusion

For these reasons, we would, as we have said, allow the appeal on ground 2, set aside the convictions and sentences on charges 2, 3, 4, 5 and 6, and order a new

trial on those charges.

We would hear the parties as to any consequential orders with respect to the sentence on charge 1, which was three years and nine months’ imprisonment. A new non-parole period would have to be fixed in relation to that sentence.

McDONALD AJA:

Introduction

On 11 October 2016 following a seven day trial in the County Court the appellant was found guilty by a jury of four charges of sexual penetration of a child under 16 (charges 1, 3, 4, and 6) and two charges of committing an indecent act with a child under 16 (charges 2 and 5). In respect of each charge the indictment alleged that the relevant offence occurred between 18 September 2014 and 18 October 2014. In respect of each offence the complainant was a female child aged 13 years.
On 23 March 2017 the trial judge imposed sentences of three years and nine months on each sexual penetration charge and ten months’ and one month’s imprisonment respectively on the indecent act charges. Orders were made for partial concurrency and cumulation, resulting in a total effective sentence of six years and two months’ imprisonment. A non-parole period of four years and three months was fixed.
An overview of the alleged offending is conveniently summarised in Priest JA’s leave to appeal judgment:
At the time of the alleged offending, the complainant, SS, was aged 13 years, and the applicant was aged 28. SS had not yet started secondary school.
On 17 August 2014, the applicant commenced lodging in a house occupied by SS, her mother and her godfather. SS was then aged 12, turning 13 after the applicant began lodging. In September 2014, the applicant began sleeping in SS’s bed, and they developed an inappropriate romantic relationship. The six charges of which the applicant was convicted arose out of three separate incidents at the house (the indictment on each charge alleging, as I have mentioned, that the relevant offence occurred ‘between the 18^th day of September 2014 and the 18^th day of October 2014’).
The first incident of sexual penetration occurred about two weeks after SS turned 13. On an earlier occasion the applicant and SS had kissed. He suggested to SS that they should have sexual intercourse, given that they had already kissed. SS agreed. That night, in SS’s bedroom, the two kissed, and removed each other’s clothing. The applicant, wearing a condom, inserted his penis into the complainant’s vagina to the point of ejaculation (charge 1). This was the first occasion that SS had engaged in sexual intercourse.
Two nights later, also in SS’s bedroom, the second incident of sexual offending occurred. The applicant kissed SS on the lips, neck, breasts and stomach, making his way down to her vagina (charge 2), before inserting his tongue into her vagina (charge 3). Once more wearing a condom, he inserted his penis into SS’s vagina until he ejaculated (charge 4).
A further two nights later, the third incident occurred. Whilst SS and the applicant were alone at SS’s home, they undressed each other. The applicant kissed SS’s lips (charge 5), and then inserted his penis into her vagina whilst wearing a condom, and ejaculated (charge 6).^[31]
[31]Toby Quinn (a pseudonym) v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 12 October 2017) [7]–[11] (citations omitted).
On 13 April 2016 the trial judge delivered an evidentiary ruling in respect of the admissibility of text messages passing between the appellant and the complainant. As at 13 April 2016 the bundle of text messages comprised 96 pages. At the time of the ruling the charges against the appellant included a charge of grooming. The text messages comprised the material underpinning that charge. However, that charge was subsequently dropped. The bundle of text messages was substantially edited. The revised body of text messages tendered as Exhibit B comprised ten pages. The text messages covered the period 25 April 2015 to 30 April 2015.
On 12 October 2017 the appellant was granted leave to appeal against conviction on three grounds:
(i)A substantial miscarriage of justice occurred as a result of the learned trial judge admitting into evidence Exhibit B.
(ii)A substantial miscarriage of justice occurred as a result of the learned trial judge failing to give the jury a direction pursuant to s 29 of the Jury Directions Act 2015 (‘Jury Directions Act’) prohibiting the jury engaging in tendency reasoning in relation to the content of Exhibit B.
(iii)The trial judge erred in leaving Exhibit B to the jury as an admission of a sexual relationship which went directly to guilt.
I would dismiss ground 1 and 3. I have upheld ground 2 for reasons which differ to those set out in the judgment of Weinberg and Priest JJA. I disagree with their Honours’ conclusion that the trial judge was requested by the prosecutor to give a s 29 direction in respect of Exhibit B and failed to comply with the request. I have concluded that neither defence counsel nor the prosecutor requested the trial judge to give the jury a s 29 direction in respect of Exhibit B. However, I agree with their Honours’ conclusion that irrespective of whether a request was made, there were substantial and compelling reasons for the trial judge to have given a s 29 direction. The trial judge was therefore required to give such direction. As a result of his failure to do so ground 2 must be upheld. For the reasons given by Weinberg and Priest JJA I agree that the conviction on charges 2, 3, 4, 5 and 6 cannot stand and that a new trial should be ordered on those charges. I also agree with their Honours that conviction on charge 1 was inevitable.
Ground 1: a substantial miscarriage of justice occurred as a result of the learned trial judge admitting into evidence Exhibit B.
Mr Carr, who appeared for the appellant, submitted that the use of the text messages for the purpose of establishing a sexual relationship between the appellant and the complainant involved tendency reasoning, which the prosecution had expressly disavowed. He submitted that the evidence was admitted and left to the jury as evidence from which the jury could reason that the appellant had been involved in a sexual relationship with the complainant, from which the jury could reason directly to guilt. Mr Carr submitted that the admission of the evidence to demonstrate the existence of a sexual relationship between an adult and a child invited reasoning that the offending was more likely to have occurred by reason of the appellant’s ‘guilty passion’ for the complainant. Mr Carr submitted that the prosecution invokes tendency reasoning if it adduces evidence not merely to address questions that would naturally arise in the minds of the jury, but in order to positively demonstrate, in proof of guilt, the existence of a sexual attraction or a sexual relationship between an adult and a child. Mr Carr submitted that the admission of such evidence is subject to satisfying ss 97 and 101 of the Evidence Act 2008 (‘Evidence Act’).
In support of the propositions set out above Mr Carr cited a passage from the judgment of Priest JA in Murdoch (A Pseudonym) v R:
In my opinion, relationship evidence — including context evidence — should be seen for what it is. It is tendency evidence. As such it owes its admissibility to ss 97 and 101 of the Act. Thus, notwithstanding the manner in which distinctions with respect to relationship evidence have been recognised and maintained by courts interstate, a more satisfactory approach would be to treat the admissibility of relationship evidence in the same manner as other tendency evidence. Were such an approach adopted, it might bring some coherence to an otherwise somewhat confused landscape.[32]
[32](2013) 40 VR 451, 474 [93].
The admissibility of tendency evidence is governed by Part 3.6 of the Evidence Act. The tendency and coincidence rules in Part 3.6 are purpose based. This is clear from s 95 which requires a trial judge to limit the evidence to its admissible purpose.
Evidence which is led for a non-tendency purpose is not regulated by Part 3.6. The prosecution eschewed any reliance upon Exhibit B as tendency evidence. The evidence was admitted for two purposes. First, a text message exchange between the appellant and the complainant on 28 April 2015 was admitted as a specific admission of charge 1, sexual penetration of a child under 16. This evidence was not led for a tendency purpose and did not invite tendency reasoning. Second, the balance of the text messages were admitted as an admission of the existence of a sexual relationship. The evidence was admitted as context evidence. The evidence was of high probative value. First, it rebutted the appellant’s denials of the existence of any sexual relationship at any time with the complainant. Second, it provided context as to the complainant’s state of mind during the period of the alleged offending. In this regard, the complainant had made denials of the existence of a sexual relationship to DOHS workers prior to making a complaint.

In his evidentiary ruling the trial judge recorded that the Crown would be precluded from using Exhibit B for a tendency purpose:
So I want to make it plain that the Crown have nailed their colours to the mast by not relying upon tendency, so they won’t be able to go to the jury speaking of sexual interest in [the complainant], or any of the concepts picked up on a tendency basis – that is, a person being more likely to act in a particular way in the future, or have a particular state of mind in the future.
But I judge the text material to be relevant, containing, as they do, firstly, the essential material, the subject of Charge 13, obviously enough; but secondly, material providing an admission by the accused man and, therefore, supportive material in this case in relation to the complainant.
Evidence of a sexual relationship admitted for a non-tendency purpose is not regulated by Part 3.6.[33] The admissibility of such evidence is not subject to ss 97 and 101 of the Evidence Act.
[33]DPP v Martin (a pseudonym) [2016] VSCA 219 [106]; WFS v The Queen (2011) 33 VR 406, 412 [38]; Hothnyang v The Queen [2014] VSCA 64 [20]; Ashley v The Queen [2016] VSCA 246 [83].
Appeal Ground 1 should be dismissed.
Ground 3: the trial judge erred in leaving Exhibit B to the jury as an admission of a sexual relationship which went directly to guilt.
It is convenient to deal next with ground 3 as it is a corollary of ground 1.
As noted earlier in this judgment defence counsel requested the trial judge to give an admissions direction. No exception was taken by defence counsel to the trial judge’s Burns direction.
In effect, the appellant submits that by reason of the Burns direction, Exhibit B is properly characterised as tendency evidence. This contention is rejected for the same reason appeal Ground 1 has been rejected. Exhibit B was not admitted into evidence for a tendency purpose. The provisions of Part 3.6 of the Evidence Act were not engaged.
Ground 2: a substantial miscarriage of justice occurred as a result of the learned trial judge failing to give the jury a direction pursuant to s 29 of the Jury Directions Act 2015 prohibiting the jury engaging in tendency reasoning in relation to the content of Exhibit B.
The application for leave to appeal in respect of Ground 2 was argued on the basis that:
(i)The appellant’s counsel[34] had requested a direction from the trial judge under s 29 of the Jury Directions Act in respect of Exhibit B; and
(ii)The trial judge failed to give the direction.
[34]Not the same counsel who appeared in the appeal.
On 14 November 2017 the trial judge provided a report to the Court of Appeal pursuant to s 316 of the Criminal Procedure Act 2009. The report dealt at some length with Ground 2. In particular, the trial judge addressed the contention that a request had been made by defence counsel for a s 29 direction in respect of Exhibit B. The trial judge rejected this contention. It is unnecessary to set out the basis of his Honour’s rejection. I have considered the transcript of exchanges between the trial judge and defence counsel. No request was made for a s 29 direction by defence counsel in respect of Exhibit B. Defence counsel did request a s 29 direction in respect of the complainant’s evidence that she had sexual intercourse with the appellant on 20–21 occasions other than those occasions underpinning the charges (‘uncharged act evidence’). A s 29 direction was given by the trial judge in respect of the uncharged act evidence.
At the commencement of the sixth day of the trial in the County Court on 10 October 2016 the recording of the proceeding commenced at 10.06.02 am. Thus, approximately six minutes of the proceeding were not transcribed. At the outset of the appeal hearing on 1 March 2018 Mr Carr was asked whether he sought an adjournment in order the access an audio recording of the six minutes not transcribed, if such recording was available. Mr Carr did not seek an adjournment. Rather, he submitted that Ground 2 could be made out on the basis that the prosecutor (as opposed to defence counsel) had requested the trial judge to give a s 29 direction in relation to Exhibit B.
The trial judge’s report does not address the issue of whether a request was made by the prosecutor for a s 29 direction in respect of Exhibit B. When the trial judge prepared his report Ground 2 was underpinned by the contention that a request had been made by defence counsel. I do not consider that any prejudice flows from the fact that the trial judge has not been afforded an opportunity to submit a report addressing the contention that a request for a s 29 direction in respect of Exhibit B was made by the prosecutor. The transcript of proceedings in the County Court clearly establishes that neither the prosecutor nor defence counsel requested a s 29 direction in respect of Exhibit B.
In addressing the question of whether the prosecutor did request a s 29 direction in respect of Exhibit B it is necessary to examine a number of exchanges which took place between the trial judge and the prosecutor and defence counsel.
The evidence in the trial concluded on the afternoon of 7 October 2016, the fifth day of hearing. Defence counsel made a no case submission. This was rejected. Immediately thereafter the trial judge stated ‘[l]et’s deal with the Jury Directions Act if we can.’
The trial judge asked defence counsel what directions he wanted. The following exchange took place:
COUNSEL:I need a direction on the misconduct evidence.
HIS HONOUR:    Now which misconduct evidence are you talking about?
COUNSEL:Well I suppose is it the context or the relationship evidence - - -
HIS HONOUR:    Yes all right when you say the context you’re talking about the other 20 occasions and the other - - -
COUNSEL:Yes.
HIS HONOUR:    - - - kissing, yes, so just a context type direction for that?
COUNSEL:Well what use can be made of it and what use can’t be made of it?
HIS HONOUR:    Yes, all right, yes?
COUNSEL:And I suppose in that sort of broad general category Your Honour you would need to give them obviously a separate consideration direction.
HIS HONOUR:    Yes, yes.
COUNSEL:And that they can’t use a finding on one count in the standard form as to other counts.
HIS HONOUR:    Yes, yes I’ll do that. Anyway, when you say the misconduct evidence you’re referring to the – really the context evidence of the other sexual acts.
COUNSEL:Yes, yes.
Following the exchange set out above defence counsel requested:
·A motive to lie direction;
·A prior inconsistent statement direction; and
·A direction in respect of admissions.
The trial judge confirmed with defence counsel that he was not seeking any other directions and then asked the prosecutor what directions she sought. The prosecutor referred to a potential direction which had been sought by defence counsel pursuant to s 43 of the Jury Directions Act relating to the prosecutor’s failure to have re-examined the complainant during the special hearing as to whether it was possible that she had forgotten some of the texts comprising Exhibit B. Thereafter, the following exchange took place between the trial judge and the prosecutor:
COUNSEL:So there were a number of vices attached with going down the course my learned friend asserts I should have done. And prior to the special hearing, she was not shown either the bundle, the hundred and something pages comprising the full download. Nor was she shown the 10 page extract. In addition Your Honour I’d submit there needs to be a direction under s 29 of the Jury Directions Act.
HIS HONOUR: Hold on, well I’m not asked to give one so – or you are?
COUNSEL:Well I’d submit that it’s appropriate in as much as there’s context evidence being led Your Honour of the uncharged acts. The other misconduct. And it’s important, particularly given the previous ruling. And the Crown stepped back in April from use of the texts and so forth as tendency evidence.
HIS HONOUR: Yes.
COUNSEL:So unless Your Honour considers it inappropriate, it seems to me though that it goes beyond the use of the text message to the other uncharged acts.
HIS HONOUR: Sorry, s 29 then you say would have an application in terms of the – we’ll use the term, the uncharged sexual act.
COUNSEL:Yes Your Honour. Where [the complainant] refers to 21 other occasions of sexual intercourse.
Mr Carr placed reliance upon the opening words of the exchange set out above ‘[i]n addition Your Honour I’d submit there needs to be a direction under s 29 of the Jury Directions Act.’ He submits that this was a request for a direction in respect of Exhibit B. In this regard, he points to the fact that the request followed on immediately from a discussion between the prosecutor and the trial judge regarding a potential s 43 direction in respect of the prosecutor’s failure to re-examine in respect of the text messages. He also points to the statement ‘[a]nd it’s important, particularly given the previous ruling. And the Crown stepped back in April from use of the texts and so forth as tendency evidence.’ He submits that the reference to the evidentiary ruling is a reference to the trial judge’s ruling as to the admissibility of the text messages. In addition, he points to the specific reference to the Crown eschewing any reliance upon the texts as tendency evidence.
As against the matters set out above, the following matters cast doubt as to whether the prosecutor was requesting a s 29 direction in respect of Exhibit B. First, the prosecutor’s use of the phrase ‘in addition’ occurred in the course of an exchange during which the prosecutor was asking for a series of discrete directions. It does not follow from the fact that the prosecutor had immediately beforehand been seeking a direction in respect of Exhibit B, that the prosecutor was seeking an additional direction in respect of Exhibit B. Second, the prosecutor stated that the s 29 direction was appropriate ‘… in as much as there’s context evidence being led Your Honour of the uncharged acts. The other misconduct.’ This is not a reference to Exhibit B. It is a reference to the uncharged act evidence.
Whatever uncertainty arose from the exchange extracted above, the trial judge moved to clarify what evidence was the subject of the request for a s 29 direction:
HIS HONOUR: Sorry, s. 29 then you say would have an application in terms of the – we’ll use the term, the uncharged sexual act.
COUNSEL:Yes Your Honour. Where [the complainant] refers to 21 other occasions of sexual intercourse.
This exchange records the prosecutor’s position that the application of s 29 was being raised in respect of the uncharged act evidence. Thereafter, an exchange took place, at the conclusion of which the prosecutor withdrew any request for a s 29 direction in respect of the uncharged act evidence. The prosecutor did so because she was content for the trial judge to provide a direction on context evidence, rather than a direction pursuant to s 29:^[35]
[35]See Judicial College of Victoria, Victorian Criminal Charge Book (at 14 March 2018) 4 Evidentiary Directions, ‘Charge: Other Forms of Other Misconduct Evidence’ [4.15.8].
HIS HONOUR: It’s before them as to context isn’t it?
COUNSEL:Yes.
HIS HONOUR: And only as to context.
COUNSEL:That’s correct and that’s why I’m raising this as an issue for consideration.
HIS HONOUR: Well don’t I just tell them, as directly as I can that it’s only there as context. I mean, without
that - - -
COUNSEL:Nothing more, certainly.
HIS HONOUR: - - - cross-examination picking up – it’s in its true context, the true and realistic context without that, it’d be three incidents occurring just out of the blue.
COUNSEL:That’s right.
HIS HONOUR: Yes.
COUNSEL:That’s right.
HIS HONOUR: So I’ve got to tell them something about it and
[defence counsel] has asked me to - - -
COUNSEL:Yes.
HIS HONOUR: - - - but do I need to - - -
COUNSEL:Your Honour probably the direction on context evidence as it stands in the criminal charge book would be appropriate.
HIS HONOUR: If you can find it, they’ve hidden it somewhere recently. But anyway I’ll hunt it down.
COUNSEL:I can find it over the weekend and email it to Your Honour’s associate.
HIS HONOUR: No don’t worry about that.
COUNSEL:There’s one further direction that I would seek Your Honour.
HIS HONOUR: Just give me one moment.
COUNSEL:Sorry.
HIS HONOUR: This is all very rough because I haven’t had any of these discussion with either of you, I didn’t know necessarily what either would be asking for. But I had in mind saying something along these lines that, you have evidence touching upon occasions other than the charged occasions – the 20 or so events. It’s led purely to place the charged acts in a true and realistic context or setting. To show that they’re not just three incidents arising out the blue. That evidence of the other occasions is not to be used by you in any way other than in this way. Remember this, you have to be satisfied beyond reasonable doubt that the particular charged act took place. If you’re not so satisfied of that you must acquit. And that would be the position even if you accepted that there had been other occasions of sexual contact.
COUNSEL:Yes Your Honour.
HIS HONOUR: Now does that deal with the matter that you’re raising or not?
COUNSEL:Yes Your Honour I believe so.
The direction foreshadowed by the trial judge, as extracted above, was a context direction in accordance with clause 4.15.8 of the Criminal Charge Book. The exchange that followed between the trial judge and the prosecutor records the prosecutor’s acceptance that a context direction of the type foreshadowed by the judge dealt with the form of the direction sought by the prosecutor in respect of the uncharged act evidence. At that point, there was no request before the trial judge by either counsel for a s 29 direction, either in respect of Exhibit B or the uncharged act evidence.
Shortly after the exchange set out above, defence counsel, referring to the uncharged act evidence, expressed concern as to the utility of a context direction in respect of such evidence. In response, the trial judge stated:
HIS HONOUR:    It’s evidence of context.
COUNSEL:Well with respect Your Honour in my submission, that’s not sufficient because it doesn’t really tell the jury anything. What does it tell the jury?
HIS HONOUR:    Well that they’re in a relationship. It’s not just those three events.
COUNSEL:They’re in a relationship, and most jurors would start to reason along tendency.
HIS HONOUR:    Well, you’ve not asked me to give an anti-tendency, but I can if you want.

Notwithstanding the trial judge’s express invitation to defence counsel to request a s 29 direction, no application was made at that time for a s 29 direction in respect of the uncharged act evidence.

At the commencement of the sixth day of hearing an exchange took place between the trial judge and defence counsel regarding the admissibility of the uncharged act evidence. Counsel asked the trial judge to revisit his ruling as to the admissibility of the evidence. His Honour refused to do so. Thereafter, the trial judge asked counsel whether he was requesting any form of direction under s 29 of the Jury Directions Act. Defence counsel confirmed that he was seeking a direction under s 29 in respect of the uncharged act evidence.
Immediately prior to the prosecutor and defence counsel making their addresses to the jury the only request for a s 29 direction had been made by defence counsel in respect of the uncharged act evidence. No s 29 direction had been requested in respect of Exhibit B.
As to the uncharged act evidence, the trial judge gave a context direction as requested by the prosecutor and a s 29 direction as requested by defence counsel:
This evidence has been led only for the very limited purpose that I have described. You must not use that evidence for any other purpose. That evidence of those other occasions is not to be used by you in any way in establishing the guilt of the accused man of any of the particular charged acts. It is before you purely as to context.
…
You certainly must not use this evidence of these other occasions to reason that [the appellant] is the kind of person who is likely to have committed the particularised offences and to use that conclusion as evidence of his guilt of any of those offences; that is totally prohibited.
As I have told you, this is context evidence only, that is all it is, and you must not use it in any way as establishing his guilt of the six charges before you.
Exhibit B consists of ten pages. A text message exchange on 28 April 2015 commencing at 12:07:29 and concluding at 12:21:25 was admitted into evidence as a specific admission by the appellant that he had engaged in the complainant’s first act of sexual intercourse, constituting charge 1. The text message exchange was admitted as direct evidence that the appellant had committed the offence charged. This evidence did not invite tendency reasoning on the part of the jury. Had there been a request for a s 29 direction in respect of Exhibit B, the 28 April 2015 text message exchange would have to have been excised from any s 29 direction. The trial judge engaged in comprehensive exchanges with both the prosecutor and defence counsel regarding the form of directions which they sought. However, there was no exchange between the trial judge and either counsel as to the excision of the 28 April 2015 text message exchange from any s 29 direction. The absence of any such exchange is consistent with there having been no request for a s 29 direction in respect of Exhibit B.
As noted earlier in this judgment, the appellant was granted leave to appeal in respect of Ground 2 on the basis that defence counsel had requested a s 29 direction in respect of Exhibit B. The appeal was conducted on an entirely different footing, namely, that the request was made by the prosecutor. This observation is not made by way of criticism of Mr Carr. Rather, the significant shift in the forensic underpinning of the appellant’s argument in respect of Ground 2 serves to highlight the dangers inherent in focussing upon a few lines of transcript, couched in inconclusive terms. When the totality of the exchanges between the trial judge and the prosecutor and defence counsel are considered, the better view is that no request was made by either counsel for a s 29 direction in respect of Exhibit B. The absence of any such request is reflected in the content of the judge’s charge which, consistent with defence counsel’s request, included an unimpeachable s 29 direction in respect of the uncharged act evidence.
Neither the prosecutor nor defence counsel took any exception to the judge’s charge despite being invited to do so. I reject Mr Carr’s submission that the failure of the prosecutor and/or defence counsel to have raised with the trial judge the absence of a s 29 direction in respect of Exhibit B was a consequence of ‘an oversight’.
The eloquence with which Mr Carr advanced his submissions cannot conceal an underlying contention that the trial judge and counsel were seriously remiss in the discharge of their respective duties. The former by reason of his failure to give a direction which, it was contended, he had been requested to give. The latter by reason of oversight which, presumably, was a consequence of inattention whilst the trial judge delivered his charge.
The appellant bears the onus of proof in establishing an error of law constituted by failure on the part of the trial judge to have given a s 29 direction in respect of Exhibit B, in circumstances where the appellant contends he was requested to do so.[36] The appellant has not established that any request was made by the prosecutor for a s 29 direction in respect of Exhibit B.
S 16 Jury Directions Act
[36]Baini v The Queen (2012) 246 CLR 469, 477 [18], 491 [58]; Theodoropoulos v The Queen (2015) 51 VR 1, 43 [164].

I have concluded that no request was made by either defence counsel or the prosecutor for a s 29 direction in respect of Exhibit B. There remains the question of whether the trial judge should nevertheless have exercised the residual power conferred by s 16(1) of the Jury Directions Act to give a s 29 direction in respect of Exhibit B.
S 16(1) provides:
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.
In his report of 14 November 2017 the trial judge stated:
As to Ground 2 of the Appellant’s Further Revised Written Case dated 23 October 2017, that I failed to give the requested s 29 anti-tendency jury direction in relation to Exhibit B (the text messages), I was not asked to give such a direction in relation to the texts and nor did I believe that it was necessary to give such a direction. There were not substantial and compelling reasons for doing so and I believe that adequate directions were given in other parts of the Charge dealing with those texts.[37]
[37]Emphasis as per original.
The trial judge’s reference to ‘substantial and compelling reasons’ was plainly a reference to s 16 of the Jury Directions Act.
Exhibit B comprised ten pages of text message exchanges between 25 April 2015 and 30 April 2015. The prosecutor in her final address to the jury focussed on two particular email exchanges. The first, commencing at 12:07:05 and concluding at 13:54:10 on 26 April 2015 was said to constitute a general admission by the accused as to the existence of a past sexual relationship and the anticipation of its resumption. The second text, commencing at 12:07:29 and concluding at 12:21:25 on 28 April 2015 was said to constitute a specific admission in relation to charge 1. These two text exchanges were the subject of a Burns direction.
The balance of the text messages which comprise Exhibit B include several sexually charged exchanges, consistent with the appellant not merely having a sexual interest in the complainant, but being willing to act on that interest, for example:
Appellant:     I’m really really really attracted
Appellant:     To you really really really
Appellant:     Like really…
Appellant:     Breathlessly
Appellant:     Honestly I lost my breath like I really did wow
…
Appellant:     I’m lost and I’m found & smell like I sound ahahahaha
SEE YOU TOMORO PUSSY PRINCESS
LOLOLOLOL
MUHAHAHA
your gap is mine reowwwww!
[emoticon]
…
SS:                My pussy looks better than that [emoticons]
Appellant:     Show me
SS:I don’t need to you already know what it looks like unless you forgot then when I’m with you, you can see it hehe shhhh
…
SS:Brb shower
Appellant:Wash your noony
SS:I will very well baby
…
Appellant:Do you have any idea how pink your bum hole is
Appellant:     Ahahahahha
…
Appellant:     Monday night missions
Tuesday look at all those chickens
Wednesday wishes
Thursday decisions
Pants off Friday
Sleep in Saturday
Sunday Sex.[38]
[38]Spelling, grammar and punctuation as in the original.
The sexually charged nature of these exchanges meant that, absent a specific direction from the trial judge, it was highly likely the jury would deploy the evidence to engage in tendency reasoning.
I am mindful of a number of authorities which have emphasised the heavy burden on an appellant to establish that, notwithstanding the position taken by trial counsel, there were nevertheless substantial and compelling reasons for a judge to have given a direction which was not requested.[39]
[39]Dunn (a pseudonym) v The Queen; Watts (a pseudonym) v The Queen [2017] VSCA 371 [6], [81]-[86]; Dunn (a pseudonym) v The Queen [2017] VSCA 95 [22].
In Gul v The Queen[40] Ashley and Priest JJA rejected a contention that a conviction should be overturned on the ground that there were substantial and compelling reasons for the trial judge to have given a direction. Their Honours considered that there were sound forensic reasons why counsel had not sought a direction from the trial judge.[41]
[40][2017] VSCA 153 (‘Gul’). See also Ritchie (a pseudonym) v The Queen [2018] VSCA 31 [63].
[41]Gul [49].
In the present case, there was no sound forensic reason for defence counsel to have refrained from requesting a s 29 direction in respect of Exhibit B. Given the sexually charged nature of the text exchanges contained in Exhibit B there was a very high risk that the jury would engage in impermissible tendency reasoning to the effect that the appellant not only had a sexual interest for the complainant, but was prepared to act on that interest. It is not possible to discern any rational basis for distinguishing between the uncharged act evidence, which was the subject of a request by defence counsel for a s 29 direction, and Exhibit B, which was not.
There were substantial and compelling reasons for the trial judge to give a s 29 direction in respect of Exhibit B even though he was not requested to do so. His failure to do so has the consequence that the convictions in respect of charge 2, 3, 4, 5 and 6 cannot stand. However, for the reasons set out in the judgment of Weinberg and Priest JJA the position in respect of charge 1 is quite different. Conviction in respect of that charge was inevitable by reason of the specific admission contained in Exhibit B. There has been no miscarriage of justice in respect of the appellant’s conviction in respect of charge 1.

----

[2018] VSCA 82

9 April 2018