WFS v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0086

WFS

THE QUEEN

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JUDGES:	BUCHANAN JA and WHELAN and ROBSON AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2011
DATE OF JUDGMENT/ORDER:	11 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 347
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Duggan, 9 March 2010, 23 March 2010.)

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CRIMINAL LAW – Trial judge directions to jury – Context relationship evidence – Evidence of uncharged acts – Failure of trial judge to give propensity warning – Failure to direct jury on the use of relationship evidence – ss 55 and 56 Evidence Act 2008

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr OP Holdenson QC	Kempsons Lawyer
For the Respondent	Mr JD McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Robson AJA.

WHELAN AJA:

For the reasons set out by Robson AJA, I agree that grounds 2 and 3 are made out, and that the appeal should be allowed and a new trial ordered.

ROBSON AJA:

Introduction

The applicant stood trial in the County Court on two counts. Count 1 alleged an indecent act with or in the presence of a child under 16 years. Count 2 alleged incest by a parent.

The applicant pleaded not guilty. On 9 March 2010, the jury returned verdicts of guilty to both counts. The applicant was sentenced to a total effective sentence of three years and seven months with a minimum of two years and three months before being eligible for parole.

The applicant applies for leave to appeal against conviction and sentence.[1] For the reasons given below, I would grant leave to appeal on conviction, allow the appeal, quash the conviction and remit the matter for retrial in the County Court.
[1]30 March 2010.

The Crown’s case

The Crown’s case is taken from the reasons for sentence of the trial judge. The defendant categorically denied any suggestion of inappropriate conduct.

The complainant is a child of the marriage of the applicant father and the complainant’s mother. The applicant and the complainant’s mother were married in

2000. The complainant was born in 1998.

In December 2006, the applicant and the complainant’s mother separated under the one roof. The applicant finally left the matrimonial home in March 2007. The Family Court of Australia granted joint custody of the complainant to the applicant and the complainant’s mother. In October 2008, access rotated between the applicant and the complainant’s mother.

On Friday 17 October 2008, the complainant went to stay with her father on an access visit for some five or seven days.

On Saturday 18 October 2008, the complainant participated in a dance concert with her dancing group. The applicant attended the concert, as did the complainant’s mother and other relatives.

The complainant alleged the following. On Sunday 19 October 2008, the complainant spent the day with the applicant. Prior to going to bed that night, the applicant asked the complainant to have a bath. The complainant quickly undressed to get into the bath. The applicant came to the door of the bathroom and looked the complainant up and down and smiled with a ‘yucky smile.’ The applicant said to the complainant, ‘You’re really hot and sexy, …’. The complainant responded, ‘Don’t say that’. The complainant then got out of the bath and was facing the wall with her behind facing out. The applicant, with his right hand, squeezed her bare behind. The complainant described the action ‘like he was milking a cow’. The complainant told the applicant ‘Don’t’. The complainant turned around to yell at the applicant, when the applicant put his hand out and put his finger in her vagina with his thumb on the pubic bone. The complainant yelled at the applicant and told him, ‘Don’t do that ever again’.

The complainant alleged that after that event, the complainant went to her bedroom. She did not have any tea. She came down later in the night, got herself a packet of chips and then went to bed. The complainant said she had a very disturbed night.

The complainant said that the following morning, she was upset as a result of the disturbed night and what had happened to her. The complainant says that she told the applicant that she was going to tell her teacher what had happened the previous evening. The complainant alleges that the applicant kept the complainant home from school that day. The trial judge in his sentencing remarks inferred that the applicant did this because he thought that keeping the complainant home would reduce the risk of the complainant immediately going and telling a teacher what had occurred.

The complainant went to school on Tuesday, the following day. On Wednesday the complainant went to a school camp and returned on the Friday. Upon her return from the school camp, the complainant was picked up by her mother on the Friday evening.

Over the following week, the complainant did not tell either her mother or anyone at school about what she alleged had happened to her. On 30 October 2008, the complainant informed a teacher at the school about the alleged offending conduct. The matter was subsequently reported to the police. The applicant was questioned and charged.

Circumstances of the applicant

The applicant was born on 6 February 1962 and, at the time of his being sentenced on 23 March 2010, he was aged 48 years. He was the middle of three children.

The applicant’s education was completed at year 12 level in 1978. The applicant had an active local sporting life. The applicant was engaged in football and tennis clubs. The applicant was brought up in Adelaide.

In 1981, the applicant commenced employment with an oil company. The applicant had different roles with that company. In the late 1990s, the applicant developed a relationship with his wife, who had been a friend of the applicant’s sister.

On 12 November 1998, the complainant was born. On 11 November 2000, the applicant and his wife were married. In the same year, another oil company acquired the applicant’s employer and the applicant commenced working for the new owner. The applicant remained with the new oil company for some time until he was subsequently retrenched. He was taken on by one of the company’s subsidiaries. At the time of his sentencing, he held a significant position with that company. The trial judge said that the applicant had a very steady employment history.

The trial judge found that there was one uncharged act leading up to the day on which the offences occurred. The trial judge found that, despite that one incident, he took the view that the offending was not the culmination of developing abuse. The trial judge said there had been a relatively low level of abuse on a previous occasion. He found that in the applicant’s case, the conduct he was charged with was not the culmination of a developing abuse over a significant period of time. The trial judge found that he did not believe that the offences were planned and, in that sense, were opportunistic.

The trial judge did find, however, from the complainant’s description of the applicant’s presence when she was in the bath, that the applicant gained some salacious delight in seeing his daughter in the bath at that time.

The applicant had no prior convictions. The applicant’s character was put in issue in the course of the trial, and the trial judge found it was supported by a number of impressive character witnesses.

In material that was filed in the Family Court, the mother said that she believed that the applicant loved his daughter. The trial judge said that he suspected that was the case, despite what had occurred in the offending conduct.

The trial judge found that the consequences flowing from the applicant’s actions would cause him anguish. The trial judge accepted from the Victim Impact Statements that the complainant did not want to have any further contact with the applicant. The trial judge said that may well remain the complainant’s attitude forever.

Sentencing

The trial judge referred to the Victim Impact Statements of the complainant and of the complainant’s mother.

The trial judge said that on any view, the offences must be regarded as serious. He said it was not suggested that anything other than a term of imprisonment must be imposed. The trial judge referred to the fact that the legislation required him to register the applicant as a sex offender and that he was required to serve upon the applicant notice that the applicant must be registered a sex offender with all that entails for the period of 15 years.

The trial judge sentenced the applicant as follows:

Count on Presentment

Offence

Maximum penalty

Sentence

Cumulation

1.

Indecent act with or in the presence of a child under 16 years (s 47 Crimes Act 1958)

10 years

12 months

3 months cumulative

2.

Incest by parent (s 44(1) Crimes Act 1958)

25 years

3 years, 4 months

Total Effective Sentence:

3 years, 7 months

Non parole period:

2 years, 3 months

Pre-sentence detention declared:

6 days

The applicant relies on nine grounds in his proposed notice of appeal. The first three grounds relate to the admission and use of relationship evidence. I propose to discuss the relevant principles relating to the admission and use of relationship evidence before dealing with grounds 1, 2 and 3. I shall first set out the first three grounds.

Ground 1: The applicant contends that the trial judge erred in failing to rule that Questions 96 and 99 (and the Answers thereto) of the VATE tape were inadmissible and/or could not be adduced in evidence by the Crown.

The VATE transcript of those questions and answers is as follows:

96.     Is there anything else you would like to tell me at the moment about anything that’s happened that you think might be important?
ANSWER:     What he said about mum. He said that when they were in bed that she always wanted to suck his dick and that he thought that when he had sex with her it felt like jumping on a jumping castle and then he said, I’m glad you’re not fat like her and he said stuff like, I wish I didn’t fuck your mum because then you wouldn’t have been in this, fucking born in this world. And he’s said stuff like that she’s got a blow-up doll but I know it’s not true and she’s called her Ca … which is my half-sister and the blow-up doll he said, I’m sorry but he said he saw her saying to it, do you want to go on top or do you want me to go on top, and then he said, she saw that he saw her licking a hole in the doll.
99.      OK.     Is there anything else that you can think of?
ANSWER:      That he said to me he wants to go to this place to pay women for sex and stuff.

Ground 2 is an alternate ground to count 1. The applicant contends that if the evidence was admissible, which the applicant says it was not, then the trial judge erred in his directions to the jury in that he failed to direct the jury as to both the use to which the jury might put, and the uses to which the jury must not put, the evidence of Questions 96 and 99 (and the Answers thereto) of the VATE tape.

Ground 3: The applicant contends that the trial judge erred in his directions to the jury concerning the evidence of the ‘uncharged acts’.

The relevant principles

The applicant refers to several authorities to support his submissions. Mr Holdenson QC for the applicant says that he has failed to observe what he says is a guiding principle of good advocacy, by citing several authorities for the one proposition. In this instance, I am grateful to Mr Holdenson for doing so. From the authorities he refers to and some others referred to in those authorities, I have drawn certain principles relevant to the objections raised by the applicant.

These principles, relating to the admission and use of relationship evidence, may apply to other areas of criminal law such as homicide. Nevertheless, I limit my observations to the issues relevant to this application.

In this case, where a parent was charged with the sexual abuse of his young daughter, the Crown sought to introduce evidence of uncharged acts as context relationship evidence and not as establishing a propensity or tendency to engage in conduct of the sort he was charged with. The defence also sought to attack the credit of the complainant through the various allegations of uncharged acts and the way they were made.

By uncharged acts I include both conduct with a sexual connotation that may have been the subject of a criminal charge and conduct with a sexual connotation that may have been merely inappropriate. Later in these reasons I refer to those alleged against the applicant as the alleged prior inappropriate sexual conduct of the applicant.

These principles will seek to identify the use to which the evidence may or may not be put, the obligations on the trial judge to direct the jury on the limits for which the evidence may be used and not used and warnings that the judge should thereby give.

Subject to those introductory remarks, the authorities I review below establish the following:

(1)The relationship evidence must satisfy the admissibility tests under s 55 and s 56 of the Evidence Act 2008. It must be relevant to some issue in the case.
(2)Relationship evidence of conduct with a sexual connotation between the complainant and the accused, other than that which is the subject of the offence or offences charged, may be relevant in two different ways:
(a)the relationship revealed may place the events which give rise to a particular charge into their true context, as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated; and
(b)the guilty passion of the accused revealed – or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant – is directly relevant to proving that the offence charged was committed.

(3)The first category of evidence is usually described as context relationship evidence and the second as ‘guilty passion’ or tendency or propensity relationship evidence.
(4)The ‘guilty passion’ evidence, if admitted, may be used to establish that the accused is more likely to have committed the sexual acts he is charged with.
(5)The context relationship evidence must not be used to establish that the accused is more likely to have committed the sexual acts he is charged with.
(6)The context relationship evidence may be used to assess and evaluate the evidence of the complainant and the accused about each version of the alleged offences.
(7)The trial judge should identify the relationship evidence and must instruct the jury on the use to which the relationship evidence may and may not be used.
(8)Ordinarily, the trial judge must direct the jury that:
(a)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; (the substitution direction) and
(b)they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged (the propensity direction).

(9)Simply because the evidence is said to disclose the relationship of the accused and the complainant, it does not necessary follow that it is either relevant or has sufficient probative weight to justify its admission having regard to its potentiality to prejudice the fair trial of the accused.

I now turn to the authorities. The observation by McClellan CJ at CL in Qualtieri v The Queen,[2] that the admission of evidence of a sexual relationship between a complainant and an accused other than evidence of the particular acts charged has caused difficulties in many cases, is a useful observation to keep in mind when reviewing the authorities. One only needs to go to the High Court of Australia decisions in Gipp v The Queen[3] and HML v The Queen[4] to see examples of those difficulties.
[2]Qualtieri v The Queen [2006] NSWCCA 95 (‘Qualtieri v The Queen’), [72].
[3](1998) 194 CLR 106 (‘Gipp v The Queen’).
[4]HML v R [2008] HCA 16 (‘HML v The Queen’).

In B v The Queen[5] the High Court of Australia considered an appeal from a trial where the accused father was convicted of incest with his daughter who was 16 at the time of the trial. Evidence of prior sexual conduct between the accused and his daughter was led by the defence. The accused tendered the evidence as an important element of his defence that his daughter had made false allegations against him with a view to taking advantage of his past misconduct. At issue was certain directions given by the trial judge about the acceptance of her evidence without corroboration.
[5](1992) 175 CLR 599 (‘B v The Queen’), 610.

Deane J identified the purpose of the evidence of prior sexual contact as follows:[6]

The evidence that the applicant had committed acts of sexual indecency upon his infant daughter in the past was, in my view, admissible against him on his trial for similar acts of sexual indecency which he had allegedly committed upon the same daughter while she was still under sixteen years. Once that evidence was adduced, the jury was entitled to use it against, as well as for, the applicant. It was, on any approach, the key to an assessment of the relationship between the applicant and the daughter and, as such, constituted part of the essential background against which both the daughter’s and the applicant’s evidence of the alleged offences necessarily fell to be evaluated. (citations omitted)

[6]Ibid.

Brennan J expressed a similar view when he said ‘that the accused’s evidence of those prior acts set the background in which the jury were to evaluate the daughter’s evidence …’.[7]
[7]Ibid [2].

In B v The Queen Deane J cited Dixon CJ in Plomp v The Queen[8] in support of the proposition cited above. In that case the High Court of Australia considered an application for leave to appeal by Plomp, who was convicted of murdering his wife. Plomp contended that he had been swimming with her in the surf when they were hit by strong undertow and she drowned. There was evidence that his wife was a strong swimmer. The Crown alleged that Plomp had a strong motive for the murder as he had a liaison with another woman and that he had represented to her that he was a widower.
[8](1963) 110 CLR 234, 242.

Paraphrasing what Dixon CJ said, the ground upon which leave was sought was that Plomp’s motives could not be taken into account until it was shown by evidence that in some physical way his actions were responsible for his wife’s death. There was nothing, it was said, to show that anything he physically did impeded her emerging from the surf or recovering her equilibrium. Until that was shown, evidence of motive cannot be used, so it was said, to prove guilt. Dixon CJ said, as to that:

There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged.

In R v Beserick[9] the New South Wales Court of Criminal Appeal examined the admissibility of evidence of sexual activity between the complainant and the accused other than that which was the subject of the charge and identified two categories or relevance. They said these issues:

… were analysed in some detail most recently by this Court in R v Wickham (Court of Criminal Appeal, 17 December 1991, unreported). The evidence is admissible, first, in order to establish a sexual relationship which makes the complainant's allegation more likely to be true. The ‘guilty passion’ of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J);[10] Harriman v The Queen (1989) 167 CLR 590 at 631 (McHugh J); B v The Queen[11] (at 602, 609, 610-611, 618).

Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. R v Wickham provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant. Such evidence provides the key to an assessment of the relationship between them and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated: B v The Queen (at 610): see also (at 602-603; 605).

[9](1993) 30 NSWLR 510 (‘R v Beserick’).

[10] In Martin v Osborne Dixon J gave several examples ‘where the repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact.’ One example involved adultery or incest where he said (376):

[11](1992) 175 CLR 599.

As can be seen, the Court accepted the purpose of context relationship evidence given by Deane J in B v The Queen.

As we shall see below, Deane J’s description of the purpose of relationship evidence was also relied on by the New South Wales Court of Criminal Appeal in R v AH[12] in their description of the use of context evidence. Deane J’s description of the purpose was also adopted and applied in this Court in R v Vonarx.[13]
[12](1997) 42 NSWLR 702.
[13](1999) 3 VR 618 (‘R v Vonarx’).

In 1995 in R v Vonarx this Court, comprising Winneke P, Callaway JA and Southwell AJA, considered an appeal where the accused was convicted of sexually abusing his son. Evidence of uncharged acts showing a history of prior abuse was admitted. The Court held that it was admissible and explained the purpose for which it could be used. They said:

[12]Mr Bongiorno sought to emphasise his argument by the lack of particularity of the evidence, which he described as ‘vague and unspecific’, leading to a situation of irremedial prejudice because of an inability on the part of the accused to properly test it. Contested evidence in this form, he contended, was incapable of being strongly probative of the offences charged in the sense of having a ‘striking similarity’ to those offences or a high degree of cogency in the circumstances of the case: cf. Pfennig v The Queen (1995) 182 C.L.R. 461 at 485.
[13] To uphold these submissions would, in our view, involve a misconception of the purpose for which the evidence was being introduced by the prosecution. It was not being led to establish the identity of the offender, as was the case in Pfennig, or to negative some defence of accident or mistake. It was being led for the purpose of proving an improper sexual relationship or guilty passion which existed between the accused and the victim, tending to make it more likely that the offence charged in the indictment was in fact committed (see R. v Ball [1911] A.C. 47; R. v Beserick (1993) 30 N.S.W.L.R. 510; S. v R. (1989) 168 C.L.R. 266; Harriman v The Queen. (1989) 167 C.L.R. 590); or, as Deane J. put it in B v R (1992) 175 C.L.R. 599 at 610, such evidence can be used by the jury as ‘the key to an assessment of the relationship between the applicant and [the victim] and, as such, constitute[s] part of the essential background against which both the [victim's] and the applicant's evidence of the alleged offences necessarily [falls] to be evaluated’: see also R. v Etherington (1982) 32 S.A.S.R. 230.
[14] This is not to say that evidence of previous criminal acts on the part of the accused will always be admissible in cases such as the present. Such evidence is clearly prejudicial and if it shows no more than the existence of a criminal disposition or propensity on the part of the accused it will be inadmissible. If the evidence is tendered by the prosecution to prove the existence of a relevant ‘relationship’ between the accused and the victim, the onus rests on the prosecution to establish that the evidence goes further than mere propensity and has additional probative value which justifies its admission despite its prejudicial effect. That is a question of degree in respect of which the trial judge must be satisfied on the material before him. It is also a question of law: see Dawson and Gaudron JJ. in B v The Queen at 619. It may be that the evidence of the previous criminal acts sought to be adduced by the prosecution is so far removed in point of time that it would be inappropriate to admit it (see R v Beserick at 525); or the evidence may, on the material available to the trial judge, be so unreliable as to demonstrate that its probative worth is negligible or wholly outweighed by its prejudicial nature: see R v C (1991) 59 A. Crim. R. 46 at 57 per Murphy J.

…
[22]Nevertheless we believe that in a case such as the present, where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged. (my emphasis)

R v Vonarx was approved by Kirby J in Gipp v The Queen.[14] In R v Grech,[15] this Court held that where evidence of prior sexual conduct was to be used as context evidence and not to be used as guilty passion evidence or for tendency as now described under the Evidence Act 2008, the trial judge was ordinarily duty bound to instruct the jury that:

(a)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and
(b)they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

[14](1998) 194 CLR 106.

[15]The Queen v Grech [1997] 2 VR 609 (‘R v Grech’).

In R v Grech the accused was presented in the County Court on five counts of incest with his daughter between 1988 and 1994. Evidence was led at the trial of other sexual incidents, including an uncharged act of vaginal intercourse by the accused with his daughter, which allegedly occurred in Sydney in 1982. The trial judge directed the jury that the evidence was admitted for limited purposes only and that, if they accepted it, it tended to establish the nature of the relationship between the accused and his daughter and the continuity of that relationship. The accused was convicted on three counts. He sought leave to appeal against conviction on the ground that the trial judge misdirected the jury on the evidence of the uncharged acts.

Callaway JA, with whom Smith AJA and Phillips CJ agreed, allowed the appeal on the ground that the trial judge had not properly instructed the jury. Callaway JA said that it was imperative that where evidence of prior sexual misconduct was admitted into evidence, the jury be explicitly instructed, not only as to the permissible use of that evidence, but also as to the ways in which it could not be used.[16]
[16]Ibid 613.

Callaway JA held that in the case before him the jury should have been told that:

(a)the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it —
(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and
(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

R v Grech was followed and applied by this Court in R v TJB.[17] Callaway JA said that when evidence of uncharged acts is led in relationship cases, the R v Grech directions should, almost invariably, be given to the jury.[18]
[17][1998] 4 VR 621; comprising Phillips CJ, Callaway and Buchanan JJA.
[18]Ibid 633.

In 1997 in R v AH Hunt CJ at CL, Ireland and Levine JJ, of the New South Wales Court of Criminal Appeal dealt with the use of evidence suggesting a ‘guilty passion’ and said:

Prior to the Evidence Act 1995, and in R v Beserick (1993) 30 NSWLR 510 at 515, this Court held, on the basis of respectable authority, that evidence of conduct with a sexual connotation between the complainant and the accused other than that which is the subject of the offence or offences charged is relevant in two different ways:
(a)the relationship revealed may place the evidence of the events which give rise to a particular charge into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated: B v The Queen (1992) 175 CLR 599 at 610 (see also at 602-603); and
(b)the guilty passion of the accused revealed — or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant — is directly relevant to proving that the offence charged was committed: R v Ball [1911] AC 47 at 71; see also Pfennig v The Queen (1995) 182 CLR 461 at 526.

The evidence — once admissible for either or both of those purposes — will also necessarily make the complainant’s evidence more credible in relation to the events upon which the charges were based.

As authority for the first proposition, the Court cited Deane J in B v The Queen (quoted above), that, as mentioned above, has also been adopted and applied by this Court in R v Vonarx.

The second category has historically been described as ‘guilty passion’ – a term that the Courts have recently disapproved, while maintaining the principle behind it.

In 2000 in R v MM,[19] the appellant was convicted of sexual offences against his son. Evidence was led of other sexual misconduct towards the complainant. Objection was taken to the trial judge’s direction on the ‘relationship evidence.’
[19](2000) 112 A Crim R 519, 540 [49].

Powell JA, with whom Hulme and Dowd JJ agreed, of the New South Wales Court of Criminal Appeal, referred to R v Beserick and Gipp v The Queen and said that the evidence in the case had been led on both bases, that is context and guilty passion. He proceeded:[20]

This being so, it seems to me, that it was incumbent on Job DCJ to identify with some care the evidence which was relied upon as establishing the relationship between the parties and to direct the jury that, unless and except to the extent that the incidents the subject of that evidence were proved beyond reasonable doubt, they could use that evidence for no purpose other than to establish what was the relationship between the parties and, in particular, that they could not use that evidence as establishing the Appellant's propensity to commit offences of the type charge and thus use it as an element in the chain of proof of the offences in fact charged.

[20]R v MM [49].

In 2000, in R v ATM,[21] the New South Wales Court of Criminal Appeal considered an appeal in which the accused contended that the judge failed to adequately direct the jury with regard to relationship evidence. The accused was convicted of sexually abusing his infant step daughter. Evidence was led of prior sexual acts.
[21][2000] NSWCCA 475 (‘R v ATM’).

Howie J, with whom Sully and Whealy JJ agreed, found that the trial judge had not properly directed the jury on the use of the evidence of the prior sexual acts. He said:

[72]    There is a substantial body of authority that evidence of uncharged acts of sexual misconduct by an accused toward a complainant may be admitted as evidence of the relationship between the complainant and the accused at the time of the commission of the offence or offences alleged in the indictment, where that relationship is relevant to the issues before the jury. The admissibility of this type of evidence has most recently been considered by this Court in the judgment of Kirby J in R v A.N. As no objection was taken to the evidence at the trial, it is unnecessary for the purpose of considering the ground raised on appeal to refer in detail to the principles that apply in respect of the admission of evidence of this nature.
[73]    However, it should be noted that evidence of allegations of uncharged misconduct by the accused is only admissible if it has sufficient relevance to the issues raised in the trial: Gipp v The Queen per Gaudron J and per Callinan J. Simply because the evidence is said to disclose the relationship of the accused and the complainant, it does not necessary follow that it is either relevant or has sufficient probative weight to justify its admission having regard to its potentiality to prejudice the fair trial of the accused.
[74]    Further, the admissibility of the evidence of relationship will depend upon the purpose for which it is admitted. As was made clear in R v AH, the evidence can be relevant in two different ways: (a) as evidence relevant to place the events giving rise to any charge in the indictment into context and to explain the conduct of the complainant and the accused upon the particular occasion to which a charge relates; and (b) as evidence of tendency on the part of the accused to act in a particular way toward the complainant, sometimes described as evidence of guilty passion.
[75]    It is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was place[d] before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence: R v Beserick; R v Fraser; and R v Greenham.
[76]    Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v A.H; BRS v The Queen per McHugh J; R v R.N.S. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as ‘guilty passion’ or ‘sexual interest’.
[77]    Further, generally it will be necessary for the judge to give warnings that they should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment or reason that because the accused may have done something wrong to the complainant on some other occasion that he must have done so on an occasion which is the subject of any charge: R v Greenham, approving the directions given in R v Beserick, and R v Wickham.
[78]    I believe that the directions given by the trial judge fell well short of what was required in this case. The admission of evidence of this nature carries with it the real risk that the jury might misuse it. The limited purpose for which the evidence was placed before the jury and the limited use that could be made of it by them during their deliberations should have been brought home to the jury in unequivocal terms. The trial judge did not do so in this case during the summing up. Nor did he explain to the jury the basis of its admission when the evidence was first placed before them during the examination of the complainant: R v Beserick. (citations omitted)

In R v Fotis,[22] Nettle JA identified the principles that apply to the propensity warning required to be given where context relationship evidence is led. Nettle JA said:[23]

The need to give the jury directions as to the way in which they may and may not use the evidence of uncharged acts and other conduct is rudimentary. So is the need to give the jury a propensity direction in respect of uncharged acts and other similar conduct; especially where the charges are of sexual offences against children. The authorities are collected and synthesised in the judgment of Callaway, JA in R v. TJB, as follows:
‘When evidence of uncharged acts is led in relationship cases, there are certain directions that should, almost invariably, be given to the jury. One of them is that the commission of the offences charged can be proved only by the evidence relating to those offences and not by evidence relating to the uncharged acts. Another is that the jury must not reason that, if the accused engaged in the uncharged acts, he is the kind of person who is likely to have committed the offences charged.’

[22][2004] VSCA 212 (Charles, Chernov and Nettle JJA).

[23]Ibid [5].

In R v DCC[24] Callaway JA examined the difference between the propensity warning given in New South Wales and that given in Victoria. In the case before him, a propensity warning was given to the effect of that given in New South Wales. Callaway JA held that was a sufficient warning against propensity.
[24][2004] VSCA 230; (2004) 11 VR 129 (’R v DCC’).

Callaway JA referred to his explanation of the difference between the New South Wales warning and that of Victoria given in R v J (No 2)[25] where he said:

In New South Wales [the jury] are told not to reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged. In this State they are told that they must not reason that, because the accused engaged in particular conduct on one or more earlier occasions, he is the kind of person who is likely to have engaged in similar conduct on the occasion charged.[26]

[25][1998] 3 VR 602, 641.

[26]Footnote omitted.

Callaway JA explained that the New South Wales direction he cited was taken from the language of Hunt CJ at CL in R v Beserick.[27] Callaway JA said that the New South Wales language and the Victorian language are both directed to propensity. He concluded that:[28]

A jury charged using the language of Hunt, CJ at CL in R v Beserick would ordinarily be given sufficient warning. The formulation preferred in . v. Grech and R v J (No. 2) is intended to be clearer and more accurate, but that is all. That having been said, it is preferable to warn the jury that they are not to reason ‘that the accused is the kind of person who is likely to have committed the other offences charged’ or words to that effect, and that is what should ordinarily be done in future when a judge has occasion to warn a jury against the forbidden chain of reasoning, whether in relation to uncharged acts or other counts on the same presentment.

[27]At 516.

[28][14].

In Qualtieri v The Queen, the New South Wales Court of Criminal Appeal discussed the limited purpose for which context relationship evidence could be used. The Court held that the evidence could be used in relation to the complainant’s credibility provided that it related to issues which might affect her credibility such as lack of complaint, surprise or protest.

In explaining the use of context relationship evidence, McClellan CJ at CL said:

[76] In Gipp v The Queen the High Court considered the admissibility of evidence of sexual abuse by the appellant of the complainant other than the acts the subject of specific charges. Admitted as ‘relationship evidence’ the jury had been instructed by the trial judge that there was no need for them to be satisfied beyond reasonable doubt of these background facts.
[77] As it happens the High Court divided on the matter and the majority did not speak with a consistent voice. Accordingly, Gipp is not thought to provide a particularly useful discussion of the problem. The matter was addressed by this Court, comprising Mason P, Wood CJ at CL and Sperling J in R v Fraser (NSWCCA, unreported, 10 August 1998) when in a joint judgment, the Court said at [29]-[31]:
‘In Gipp, where the High Court split three to two, divergent views were expressed as to the circumstances in which relationship evidence might be received, and as to the use to which it might be put. As the three separate majority judgments by Gaudron J, Kirby J and Callinan J have little common ground, it is difficult, if not impossible, to extract any clear ratio from the case. Gaudron J, expressed the view (at 19) that ‘general evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders it admissible as similar fact or propensity evidence’. In the absence of a feature of the kind present in Ball, that made it directly relevant to the question of guilt, then it was admissible only to meet some subsidiary issue arising in the trial to which it was relevant, arising from the way in which the defence case is conducted, for example to explain lack of surprise or failure to complain.
Kirby J, who preferred to categorise relationship evidence as tendency evidence, accepted that it could be admitted upon a limited basis (i.e., for a purpose other than proving a particular tendency), if its probative value outweighed its prejudicial effect (at 54). In quoting with approval a statement by the Victorian Court of Appeal in Vonarx (Court of Appeal Vic 15 November 1995, unreported at 12-13) that such evidence may be used to enable ‘the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting’. His Honour appears to have accepted the correctness of the statements of Brennan and Deane JJ in B, and of this Court in Beserick, Wickham and AH.
Callinan J, at 64, rejected the notion that, there was a ‘special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible)’. His Honour expressly disagreed with the observations of Deane J in BL but made no reference to the parallel observations of Brennan J in that case, or to the classic statements by the High Court as to relationship evidence in Wilson, a decision which has stood unquestioned, and applied in innumerable trials since it was handed down. He may, however, be assumed to disagree at least with the observations of Brennan J, in B, in the light of his disagreement with Deane J in that case. His Honour concluded that if evidence of this kind was to be received, then ‘it must owe its admissibility to some quite specific, other purpose, including, for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive’ (at 64).
In their joint minority judgment, McHugh and Hayne JJ, at 35-36, accepted the correctness of the admission of the evidence at first instance in the case under appeal, not as propensity (tendency) evidence but ‘for the limited purpose of making the circumstances of the specific offences more intelligible’, i.e., so that the jury ‘could understand the context of the incidents that were the subject of the charges. Although their judgment makes no reference to the observations of Brennan and Deane JJ in B, it is entirely consistent with those observations, and with the approach which has been hitherto regarded as settled by this Court. In the result, three members of the Court (albeit that two members were in the minority) accepted the admissibility of relationship evidence to set the offences alleged in their context, and to enable the jury to properly evaluate the evidence concerning them. In those circumstances, we are of the view that until the High Court decides otherwise, the law as laid down in AH, Beserick and Wickham, and as declared by Brennan and Deane JJ in B should continue to be applied in this State.’[29]
[29]Citations omitted.

…
[80] To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be –
Identification of the evidence which the Crown seeks to tender and the purpose of its tender.
If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH at 709.
If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.[30]
[30]Emphasis added.
If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.

[81] The Supreme Court Bench Book contains a model direction with respect to relationship evidence which is to my mind the appropriate manner in which to instruct the jury. It states:
‘It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into a true and realistic context. It is confined, in other words, to making the circumstances of the particular offences charged more intelligible.
Otherwise, a jury such as yourselves may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, a jury would be entitled to say to themselves, as persons of common sense, well, really, it is very odd for there to be such isolated acts between these persons.
Thus, it is open to the Crown to lead evidence of other acts of sexual nature between the accused and [the complainant] ... [it is necessary, to explain this direction, by reference to the facts of the particular case].
However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as ‘context evidence.’
You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged, and, therefore, it cannot be used as an element in the chain of proof of the offences charged.
You must not substitute the evidence of the other acts for the evidence of the specific offences charged.
You must not reason that, because the accused may have done something wrong to [the complainant] on another occasion, [he/she] must have done so on the occasions charged.
You must give careful consideration to the time frame within which the other acts are alleged to have occurred. The more remote the other sexual activity is, the less will be its weight ... [this direction will require amplification].’
…

[83] The question which arises in this case is whether, having regard to the fact that the evidence was tendered merely for the purpose of providing the jury with the context in which the charged acts occurred and which would assist them in weighing her evidence, the directions given by the trial judge gave the jury clear guidance as to the appropriate principles. In my opinion they did not.
…
[89] The problem was exacerbated by the direction which the trial judge gave, without further explanation, that relationship evidence may be used to draw inferences. He then tells the jury that relationship evidence may also be used to impact upon the complainant’s credibility.
Provided this is understood as relating to issues which might affect her credibility, lack of complaint, surprise or protest, which should be explained to the jury this statement is unexceptional.[31]
However, his Honour then directs the jury’s attention to the question of whether the appellant harboured ‘sexual feelings or passions for the complainant’ saying ‘that fact may well make more credible the complainant’s evidence that sexual activity took place on the occasion and in the circumstances of the particular charge that you are considering.’

[31]Emphasis added.

Howie J also explained the purpose for which context relationship evidence could and could not be used. He said:

[119] Both context evidence and tendency evidence can bolster the credibility of the complainant but they do so in different ways.
Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant’s version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable.
But other than generally assisting the complainant’s credibility in this way, context evidence does not make the complainant’s account more reliable than it would be in the absence of that evidence. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment.[32]
[120] Tendency evidence on the other hand is direct evidence relevant to the commission of the offence charged. If accepted by the jury, it makes it more likely that the offence charged was committed by the accused. It bolsters the complainant’s credibility because her version is more likely to be true if the accused has a tendency to behave in the way she alleges he did on specific occasions

[32]Emphasis added.

In Boney v The Queen[33] the New South Wales Court of Criminal Appeal approved and applied the recommended directions that a trial judge should give as set out in [81] of Qualtieri v The Queen cited above.
[33][2008] NSWCCA 165.

In Paton v The Queen,[34] this Court, comprising Nettle, Neave and Tate JJA, emphasised the distinction between a propensity warning and a separate consideration direction and that a separate consideration direction is no substitute for a propensity warning particularly in relation to uncharged acts.[35] The Court also confirmed the need for the trial judge to give directions on both the use and non-use of context relationship evidence.
[34][2011] VSCA 72.
[35]Ibid [31]-[37]. This is not the case where what is in issue is different counts on the one presentment with one complainant: R v J (No 2) (1998) 3 VR 602.

I now turn to the specific grounds of appeal.

Ground 1

As mentioned above, the applicant contends that the trial judge erred in failing to rule that Questions 96 and 99 (and the Answers thereto) of the VATE tape were inadmissible and/or could not be adduced in evidence by the Crown.

The VATE transcript of those questions and answers is as follows:

96. Is there anything else you would like to tell me at the moment about anything that’s happened that you think might be important?
ANSWER: What he said about mum. He said that when they were in bed that she always wanted to suck his dick and that he thought that when he had sex with her it felt like jumping on a jumping castle and then he said, I’m glad you’re not fat like her and he said stuff like, I wish I didn’t fuck your mum because then you wouldn’t have been in this, fucking born in this world. And he’s said stuff like that she’s got a blow-up doll but I know it’s not true and she’s called her Ca … which is my half-sister and the blow-up doll he said, I’m sorry but he said he saw her saying to it, do you want to go on top or do you want me to go on top, and then he said, she saw that he saw her licking a hole in the doll.
99. OK. Is there anything else that you can think of?
ANSWER: That he said to me he wants to go to this place to pay women for sex and stuff.

Mr Traczyk, counsel for the applicant at the trial, contended that the evidence was irrelevant or if it was relevant that it was so highly prejudicial to outweigh its relevance.

Mr Cordy, counsel for the Crown at the trial contended that the evidence was relationship evidence and ‘paint the background picture to what the prosecution say is the unhealthy sexual interest that this man has for his daughter leading up to the events that comprise counts 1 and 2’.

The trial judge said the evidence was significant but prejudicial. He said:

Question 96 concerns me, I must say. I do regard the matters that are referred to there as quite significant in the context of that age, and their relationship. On the other hand, it is significantly prejudicial.

Counsel for the Crown responded:

That’s ultimately a matter for Your Honour whether the prejudicial effect of it outweighs its probative value.
But the prosecution would say that it’s highly relevant material and an inappropriate type of conversation for a father to be having with his young daughter, and indicates, as I say, an unhealthy sexual interest in her, and in particular parts of her body.
But ultimately it’s a matter for Your Honour as to whether the prejudicial value outweighs any probative value…

The trial judge ruled the evidence was admissible.

It seems to me that the matters identified by Mr Traczyk are relevant for the reasons that have been referred to in comments and all of them are relevant. The one that troubles me, I must say is question 96.
In my opinion the answer attributed to the complainant, …, in this answer is highly relevant to a case in which the allegation is that the accused man had an inappropriate sexual relationship with his young daughter. It seems to me that if that relationship included a conversation along the lines recounted by [the complainant] in that answer, it would be highly significant in the context of a relationship of the type alleged by the prosecution here.
I do acknowledge that there is a level, I think, a significant level of prejudice in that answer. The question for me is whether or not the level of prejudice outweighs the probative value. I must say it seems to me that it is very significant from a probative point of view. I think it might well be open to the jury to interpret the relationship as it emerges from that conversation if they accept that it did occur in the way that is significant in the context of this case.
It seems to me that that is the nature of the case that is alleged here. It is highly probative, it does have a prejudicial aspect, but then much highly probative evidence does.
In the circumstances I think it should be before the jury for them to see the matter as a whole. I do not rule the prejudicial value to outweigh the probative value.

Again after the special hearing tape was played, objection was taken to the admission of this evidence, the trial judge ruled:

Nevertheless it seems to me that if the jury is of the opinion that this was the nature of the conversation between the accused and the complainant, it would have or may have in the mind of the jury a powerful effect on their assessment of the nature of that relationship.

The applicant contends that the trial judge erred in admitting the impugned evidence. The applicant says that the impugned evidence was not relevant for the purpose of relationship evidence as it did not satisfy s 55 and was inadmissible under s 56(2) of the Evidence Act2008 (the Act).

The applicant contends that the two impugned questions and answers, do not go to, or bear upon any relevant aspect of the relationship between the accused and the complainant with respect to any issue or potential issue at the trial.

Further, the applicant contends that the trial judge erred in failing to refuse to admit the impugned evidence pursuant to s 135(a) and/or s 137 of the Act on the basis that the statements were so offensive that:

(i)there was a danger that the jury might use the impugned evidence for an improper purpose because it was such as to arouse a sense of revulsion and/or provoke an instinct to punish or an emotional or illogical response; and
(ii)there was a risk that the jury would give the evidence more weight than it deserved and/or it would divert the jurors from their task.[36]

[36]The applicant relies on Papakosmas v The Queen (1999) 196 CLR 297, [91]-[93] (McHugh J) and R v Suteski (2002) 56 NSWLR 182, [116]-[117].

The Crown says that the evidence was relevant in that it rationally affected the assessment of the existence of a fact in issue in the proceeding, namely the relationship between the applicant and the complainant, the applicant being the complainant’s father and the complainant being then nine years of age.

The Crown says that the trial judge correctly ruled that the probative value of the impugned evidence was not outweighed by the danger of unfair prejudice to the applicant and accordingly refused to exclude such evidence.[37]
[37]Evidence Act 2008 ss 135 and 137.

No tendency notice was given under s 97 of the Act. Thus it fell to be assessed under the first category of context relationship evidence, that is evidence that places the evidence of the events which give rise to counts 1 and 2 into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated.

Such evidence may be admitted for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed, evaluated and weighed within a realistic contextual setting.[38]
[38]R v Vonarx, [22].

Without such evidence, the jury would be called on to make their decision as if the events charged happened in a vacuum.[39]
[39]R v Wilson (1970) 123 CLR 334, 344 (Menzies J).

In my opinion, the evidence is relevant to the assessment of the credibility of the complainant in that her version of the particular incident, which is the basis of the charge in the indictment, may be more capable of belief when seen in the context of what the complainant says was her sexual relationship with the accused. It may explain, on the complainant’s version, why the accused and the complainant acted as they did in circumstances where, without the context of the relationship, those acts might be inexplicable.[40]
[40]Qualtieri v The Queen, [119] (Howie J).

Under ss 55 and 56 of the Act, to be admissible the evidence had to be relevant. Under the Act, the evidence must be such that, if accepted, it could rationally affect the jury’s assessment of the probability of the existence of a fact in issue in the proceeding.

The evidence in question was an essential part of the overall evidence that disclosed the developing nature of the improper sexual relationship that existed between the applicant and the complainant prior to the alleged offending conduct.

I am not satisfied that the trial judge erred in finding the evidence relevant and admissible.

I am not satisfied that the trial judge erred in deciding not to exclude the evidence. In my view, the jury could have been instructed as to the limited and proper use to which the impugned evidence could have been put.

I would reject ground 1.

Ground 2

Ground 2 is an alternate ground to count 1. The applicant contends that if the evidence was admissible, then the trial judge erred in his directions to the jury in that he failed to direct the jury as to both the limited use to which the jury might put, and the uses to which the jury must not put, the evidence of Questions 96 and 99 (and the Answers thereto) of the VATE tape.

The applicant contends that, because the impugned evidence was not admitted as ‘tendency evidence’ for the purposes of s 97(1)(b) of the Act, the trial judge was also bound to direct the jury that the jury:

(a)must not use the impugned evidence as propensity evidence or for the purpose of propensity reasoning; and
(b)the two charges could only be proved by the evidence relating to those two offences, not by the impugned evidence.[41]

[41]The applicant refers to and relies on R v Grech [1997] 2 VR 609; R v AH (1997) 42 NSWLR 702 at 708; R v MM (2000) 112 A Crim R 519, 540, see especially, [49]; R v ATM [2000] NSWCCA 475, [75]-[78]; Qualtieri v The Queen (2006) 171 A Crim R 463, [80], 487 and Boney v The Queen (2008) 187 A Crim R 167.

The Crown contends that the trial judge directed the jury that their task was to decide to the requisite standard whether the events alleged to have occurred on 19 October 2008 did in fact occur. The Crown says that his Honour made it perfectly clear that words and conduct occurring before that date were led solely as evidence of relationship and that such evidence, if the jury concluded it did occur, could not ground a verdict of guilty on either of the counts.

The Crown submits that that the trial judge conveyed to the jury the substance of the directions that the applicant contends the trial judge was bound to give.

The trial judge directed the jury on relationship evidence as follows:

Also, you have been told about what are called uncharged acts. The principle is this. Normally a jury can only be told of, or hear of, allegations against an accused person of criminal acts if they constitute charges that are before the jury. The jury is not told of other allegations that might exist against an accused person, in the same context or in a completely different context.
However, there is an exception to that general approach and it comes into operation in this case. Whereas here the nature of a relationship between an accused person and an alleged victim, such as [the complainant] in this case, is under consideration, it would be artificial for you not to hear evidence that touched upon the nature of that ongoing relationship. Obviously the background of the family law dispute the change in arrangement with regard to custody and access of [the complainant] is relevant to understanding the circumstances in which the two parties existed on 19 October 2008 when these offences are alleged to have been committed. And as part of that, [the complainant] was permitted to give, and the evidence is before you, was she was permitted to give evidence of other acts which may or may not constitute other offences.
Certainly the claim of having been touched on the buttocks in a sexual way by the accused man on an occasion other than the day in question here and perhaps also, although with less certainty, the touching on the breasts of a young child like this may constitute a criminal offence of some kind. But if that evidence was not permitted to be placed before you, you would have an artificial view of the relationship between [the complainant] and her father as it existed over that weekend in late October 2008.
Accordingly, in certain circumstances such as these, evidence of criminal activity other than the activity that is the basis of the charges before you, can be put before a jury. And it is before you for no reason other than the one that I have mentioned, namely, because if it was not before you, you would have an artificial and filtered understanding of the relationship between, for example, the accused and [the complainant], at the time in question.
The task before you is whether you are satisfied that these counts, the charges that are laid before you, are established beyond reasonable doubt. You are not in any way making the decision about whether the previous matters, the uncharged act, as we called it, is established. It is not a factor for your consideration, in the sense of any conclusion being required to be reached. It is just the history given by [the complainant] of events preceding the weekend in question in October 2008. And you will, I am sure, understand those previous events in the context of the relationship between [the complainant] and her father, the same way as the other evidence of events between them and the relationship between them over that extended period of time.
The danger of evidence of these matters, or matters like this being put before a jury is of course the temptation to say, well, something must have happened at some stage between the two of them over a period of time and therefore we will convict him on the charge that is before the jury. That is not good enough. The task before you is not whether something happened at some stage over a period of time. The task before you is whether you are satisfied beyond reasonable doubt that the events alleged on 19 October 2008 did occur. And it is only if you are satisfied in respect of those individual events that you would be entitled to return a verdict adverse to the accused man.

The applicant says that the trial judge failed to give a propensity warning as required by this Court in respect of the impugned evidence.[42]
[42]R v Grech.

The Crown contends that the instruction given contains a propensity warning similar in effect to the effect of the New South Wales warning and consistently with the observations of Callaway JA in R v DCC should be accepted as an adequate propensity warning.

The Crown says that the proximity of this warning to that accepted in R v DCC may explain why the applicant’s counsel did not take exception and request a redirection on the matter.

In my opinion, the direction did not constitute a warning against using the evidence to reason that because the applicant engaged in an inappropriate sexual conversation with the complainant previously he was the kind of person, or was more likely, to have done the conduct the subject of the charge. Rather the warning was against reasoning that because the jury found that something happened at some stage in the past between these two then the jury should convict of the offence charged. This was a substitution warning. That is that the jury should not substitute evidence of other sexual activity for the specific activity the subject of the offence charged. The learned judge made this clear when he concluded this part of the direction by saying:

The task before you is not whether something happened at some stage over a period of time. The task before you is whether you are satisfied beyond reasonable doubt that the events alleged on 19 October 2008 did occur.

In my opinion, the trial judge did not give the jury adequate direction on how to deal with the questions and answers in 96 and 99 of the VATE tape. In my opinion, the reference by the trial judge to ‘uncharged acts’ in his charge to the jury was unlikely to have informed the jury that his directions were directed to this evidence as well as the other evidence of touching and such like.

Under ground 3 I deal with the directions that should have been given on the use of the relationship evidence. Those observations apply equally to the failure of the trial judge to give adequate directions on the use to which the impugned conversations could have been put.

In my opinion, the trial judge did not give the direction that was required on how the impugned evidence was not to be used. In particular, as the evidence was not led as propensity or tendency evidence, the jury should have been given an appropriate propensity warning and been instructed that they must not reason that, because the applicant engaged in the alleged inappropriate sexual discussions with his daughter on an earlier occasion, he was the kind of person who was likely to have carried out the charged conduct or words to that effect.

The trial judge was required to give such a warning about all of the relationship evidence as discussed in the next objection.

I am satisfied that ground 2 is made out.

Ground 3

The applicant contends that the trial judge erred in his directions to the jury concerning the evidence of the ‘uncharged acts’. Particulars of ground 3 are given as follows:
(i)The trial judge erred in directing the jury that the jury was not making any decision about whether any uncharged act ‘is established’.
(ii)The trial judge erred in failing to direct the jury that if the jury accepted any of the evidence of the ‘uncharged acts’, then they must not engage in propensity reasoning.
(iii)The trial judge erred in failing to direct the jury that they must not reason that, because the applicant had engaged in sexual conduct with the complainant on one or more earlier or other occasions, then he was the kind of person who was likely to have done so on the occasion charged.
Evidence was led before the jury of other sexual acts perpetrated by the applicant upon the complainant (‘the uncharged acts’). The uncharged acts included allegations that the applicant:

(a)looks at the complainant (and up and down) when she is undressed in the bathroom and in the bath and then gives her a ‘gross grin’ or a ‘yucky smile’;
(b)had on an earlier occasion (or occasions) squeezed the complainant’s ‘bum’ or bottom and ‘pinched [her] rude spot’;
(c)had had his fingers up the crack of the complainant’s bottom on an earlier occasion;
(d)had touched the complainant’s bottom and told her to do sexy dances (and told her that it looked really sexy) and then told her that if she told anyone, then she would really pay for it; and
(e)used to touch the complainant on the nipples when she got out of the bath and said that he ‘love[d] her sexy body’.

The applicant says that the evidence of the uncharged acts was not admitted as ‘tendency evidence’ for the purposes of s 97(1)(b) of the Act, but as evidence of the relationship between the applicant and the complainant.

In the circumstances, the applicant contends it was necessary for the trial judge to direct the jury that:

(a)the evidence of the uncharged acts was admitted solely to establish the relationship between the applicant and the complainant (and the nature of that relationship) in order to understand the circumstances in which the two offences charged were alleged to have occurred; and
(b)the jury was required to wholly disregard the evidence of the uncharged acts unless the jury accepted that evidence (or part of that evidence); and
(c)even if the jury accepted that evidence (or part of that evidence) –
(i)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the uncharged acts; and
(ii)they must not reason that, because the accused engaged in sexual conduct with the complainant on one or more other occasions, then he was the kind of person who was likely to have done so on the occasions charged.

The applicant contends that the trial judge directed the jury in accordance with paragraph (a) above, but not in accordance with paragraphs (b) and (c)(ii).

The applicant contends that the trial judge’s failure to give the directions in accordance with paragraphs (b) and (c)(ii) is fatal to the conviction sustained by the applicant.

The applicant contends that no propensity warning was given to the jury. The applicant contends that this was a case where it was especially important that a full, clear and firm propensity warning be given to the jury, because the allegations were of a paedophilic behaviour and there was much reference to the evidence of the uncharged acts.

In short, the applicant says that, absent such a warning, there was a grave risk that the jury would engage in impermissible reasoning.

The applicant contends that his counsel took exception to the failure of the trial judge to direct the jury in accordance with paragraph (b). The applicant says that, however, the trial judge determined not to redirect the jury with respect to the complaint made by the defence.

The applicant accepts that neither the prosecutor nor defence counsel took any exception to the trial judge’s failure to give a propensity warning. The applicant says, however, that such failure to object is not fatal to the applicant succeeding on this ground. The applicant submits that there are many decisions of this Court where the failure to take such an exception has not defeated the point.[43]
[43]R v Grech [1997] 2 VR 609; R v FJB [1990] 2 VR 425; R v Fotis [2004] VSCA 212; R v VAS (2006) 170 A Crim R 452; and R v GVV (2008) 20 VR 395, [37], 403.

The applicant contends that the uncharged acts assume great significance in the conduct of the case. The allegations were of a paedophilic behaviour. The applicant says that in those circumstances, there was a grave risk that any error or omission in the directions as to how a jury must not use such evidence might have affected the verdicts of guilty returned by the jury.

Finally, the applicant contends that there could be no forensic advantage in refraining from taking exception. On the contrary, the applicant says that a propensity warning would only have advantaged the applicant in the case.

The Crown says that the trial judge adequately charged the jury. The Crown says that the VATE tape questions and answers are not evidence of uncharged acts. The Crown says that the trial transcript evidence of alleged prior inappropriate sexual behaviour of the applicant cited by the applicant is evidence adduced entirely in cross-examination. The Crown says that none of the answers complained of was led in chief by the complainant and the uncharged acts were led by the applicant as part of an attack on the credit of the complainant.

The Crown says that the sworn evidence of the mother was adduced in cross-examination. The Crown says that no uncharged acts were led by the Crown in oral evidence. They were led in the VATE tape.

The Crown says that in the circumstances of this case that the oral evidence of the uncharged acts were all adduced by the defence in cross-examination and the applicant cannot now be heard to complain at forensic decisions taken on his behalf.

As events transpired at the trial, the brief reference to alleged prior inappropriate sexual behaviour by the applicant was expanded upon during cross-examination by counsel for the applicant. The applicant’s counsel appeared to be putting to the complainant matters that the complainant may have mentioned to her mother and the mother had referred to in the prior Family Court proceedings. The reason why defence counsel elicited evidence of other alleged prior inappropriate sexual conduct of the applicant was not fully made clear until defence counsel’s final address. I discuss this matter more fully below.

In the cross-examination of the mother, counsel for the applicant further explored some of the uncharged acts that the complainant had mentioned to her mother.

The Crown led the following evidence in the VATE tape. The complainant gave evidence that the applicant normally looked at her when she got undressed and got into the bath in a manner that she did not like. She described the way her father looked at her:

Well he like has sort of had one eye shut like this, like sort of half open and half shut, the other one wide open and then with one side of his mouth he like puts it up and likes smile and then he looks me up and down.

Later she described the smile as ‘yucky.’ The complainant said that it made her uncomfortable and she had told him not to do it before. The complainant also said that the applicant had squeezed her behind on a prior occasion.

The complainant was cross-examined about the applicant looking at her in the bath in a sexual manner. In cross-examination, the complainant said that the applicant had been engaging in this conduct of looking at her naked up and down for some two months before the alleged offending conduct. She said that the looking her up and down became worse as time went on.

The complainant was cross-examined about the prior occasion on which the applicant allegedly touched her bottom. She elaborated on her VATE evidence by saying that it happened in the TV room when they were watching a DVD ‘Little Miss Sunshine.’ She said that he touched her on the bottom.

She said that the girl in the film was dancing and the applicant said to her ‘That girl moves hot and sexy, I think you could do that too T …’ She said the applicant said to her ‘Do you want to try and do a dance like that’ and then told her to do it. The complainant said that the applicant said ‘move your body’ and she did and the applicant said ‘that’s looks really good’ and ‘that looks really sexy’ and then she stopped.

As to the touching of her bottom on the prior occasion, the complainant said that the applicant ‘had squeezed my bottom but he didn’t put his fingers up my crack’ and ‘the Sunday was the only time that he had put his fingers up my crack.’

The complainant raised a fresh allegation of sexual misconduct in cross-examination. The complainant said that when the applicant lifted her out of the bath he would put both hands under her arm pits and fondle her nipples with his thumbs. She agreed with counsel for the defence that when he was doing that he said ‘I love your sexy body.’ She agreed with counsel for the defence that what she was suggesting was ‘quite gross and inappropriate behaviour.’

The complainant also said that prior to the alleged offending conduct the applicant had called her ‘hot and sexy.’ She said that she initially thought it meant ‘cool and funky’ until her mother told her what it meant, implying a sexual meaning.

During cross-examination, the complainant also added to her description of what happened immediately after the alleged offending conduct. She said that when she yelled at the applicant to stop he said ‘sexy ladies don’t yell at me like that’ and then she said she told him to be quiet and stop saying that and he said ‘shut up’ or ‘I don’t want the neighbours to hear.’

The applicant contends that the trial judge erred in his directions to the jury concerning the evidence of the ‘uncharged acts.’ I have set out above a full description of the ‘uncharged acts’ led as part of the Crown case and revealed in the cross-examination of the complainant by counsel for the defence. The trial judge’s directions to the jury on the use of the evidence of uncharged acts are set out above.

As quoted above, when dealing with ‘uncharged acts’, the trial jury directed the jury that:

The task before you is whether you are satisfied that these counts, the charges that are laid before you, are established beyond reasonable doubt. You are not in any way making the decision about whether the previous matters, the uncharged act, as we called it, is established. It is not a factor for your consideration, in the sense of any conclusion being required to be reached. It is just the history given by [the complainant] of events preceding the weekend in question in October 2008. And you will, I am sure, understand those previous events in the context of the relationship between [the complainant] and her father, the same way as the other evidence of events between them and the relationship between them over that extended period of time.

Counsel for the accused took exception to this direction to the jury. Defence counsel said that it was critical to his defence for the jury to make a finding about what he called the uncharged acts, that is the alleged prior inappropriate sexual conduct of the complainant’s father. Mr Traczyk said as follows:

The exception that I take in respect of the Charge at the moment is that you can't just leave a jury in terms of whether it's the physical acts or the conversations, with respect, with a direction that they don't really need to reach a conclusion as to it. They do. It's a thing that may be very significant in their ultimate deliberations because the point that I make in my closing address is, ‘You couldn't be satisfied any level as to the existence of any uncharged acts, whether it's touching on the bottom or the touching of the breasts, or indeed the conversation because of the lack of particularity and because of the lack of complaint and things of that nature.’ I addressed my comments to the jury about that and therefore I said to the jury, if you can't take the complainant's evidence or can't accept the complainant's evidence about that, how could you accept her evidence about the ultimate offences? Now, if Your Honour says, look, you don't need to be satisfied that it happened or not, then that really takes the wind out of that argument completely to say, well, it doesn't matter. What's Mr Traczyk on about, it doesn't matter according to the judge. Whereas in my submission it's a critical matter because if they do accept the submissions I made about it, it would then certainly establish a foundation for the jury say well we can't believe her about those matters, the uncharged acts and the conversation, therefore how can we believe her on anything.

The trial judge rejected this submission and ruled:

With regard to the uncharged acts section of the directions to the jury, Mr Traczyk submitted that it was indeed incumbent on the jury to make a finding about whether those uncharged acts did take place. In my opinion the true position is really around the other way. The position is not that evidence of uncharged acts is led as evidence of the relationship. In my opinion the proper position is this: that evidence of the relationship is led and it may include acts that are or might be described as criminal acts. It is in this way and for this reason that criminal acts may be part of the material before the jury as part of the general evidence of the relationship between, for example, the victim in a case like this and the accused man.
In my opinion it is not essential for the jury to come to any particular conclusion concerning those alleged offences constituting as they do merely part of the evidence of the pre-offence relationship between the alleged victim and the accused any more than it is in respect of any other disputed event in the prosecution version of that relationship, such as a disputed debt or anything of that character.
It is not the case in my view that uncharged acts are led as evidence of relationship, rather that the prosecution is entitled to lead evidence of the relationship which may or may not include evidence of uncharged acts. If they do, they are no more than one of the elements constituting the ongoing relationship between an alleged victim and an accused and are really not in any different category when it comes to the standard of proof that needs to be established or whether indeed they do need to be established in the circumstances of the particular case, and accordingly I do not propose to give a redirection in respect of uncharged acts.

As discussed above, in B v The Queen the High Court of Australia considered an appeal from a trial where a father was convicted of incest with his daughter who was 16 at the time of the trial. Evidence of prior sexual conduct between the accused and his daughter was led by the defence. The accused tendered the evidence as an important element of his defence that his daughter had made false allegations against him, with a view to taking advantage of his past conduct. I refer again to the passage quoted above where Deane J describes the relevant of evidence of prior sexual contact.

The same observations are equally applicable in this case where both the Crown and the defence relied on the context relationship evidence.

Defence counsel in his final addressed placed considerable stress on the relationship evidence: that led by the Crown, and that adduced by himself in cross-examination. He accepted that the case was essentially one of oath against oath between the complainant and her father. He accepted that the question was the simple one of did what the complainant say happened on 19 October 2008 happen.

Defence counsel dealt at length with the evidence of Ms Fraser and the reasons she gave for the opinion she expressed. He also dealt at length with the evidence of the context relationship evidence tendered by the Crown and that he brought out in cross-examination. He sought to undermine the credibility of the complainants evidence by, as he said, ‘the way that [the complainant’s} allegations wax and wane and change.’

He sought to tie that characterisation of her evidence to that of Ms Fraser’s saying that the way the allegations of prior inappropriate sexual conduct of the complainant’s father emerged and evolved was entirely consistent with Ms Fraser’s opinion that the complainant was a child who was trying to cope with a bad situation [the family split up] and to achieve, by making the allegations, what was best for the complainant.

I do not propose to summarise all the ways in which defence counsel sought to use the evidence led by the Crown as relationship evidence and the further evidence that defence counsel adduced in cross-examination on alleged prior inappropriate sexual conduct of the complainant’s father. It encompassed a substantial portion of his final address. It is sufficient if I provide a few examples.

Defence counsel challenged the complainant that her father had for some time inappropriately and in a sexual manner rubbed her nipples when getting her out of the bath. First, he point to the complainant’s evidence that it was only after the alleged incident on 19 October and attending the subsequent school camp that she thought about how she could get out of that situation by going back to live with her mother. Defence counsel submitted to the jury that if the nipple touching was happening as the complainant now alleged that was inconsistent with her evidence that she only started thinking of going to live with her mother to avoid her father’s inappropriate sexual behaviour, after the school camp.

Defence counsel raised the fact that the version of the first bottom touching given by the complainant and that given in evidence by her mother were different. Defence counsel also relied on the fact that when the complainant was cross-examined about the earlier bottom touching she became distressed but could not remember when it happened and how it happened. Defence counsel submitted the complainant was distressed because it did not happen.

As for the jumping castles conversation, defence counsel challenged the complainant’s credibility on the conversation as she was not able to say in what room it happened or what was happening at the time. He also raised the point that the school teacher to whom the complainant complained said that the complainant had said that the part of the conversation that ‘everything was all right until he fucked her mum and [the complainant] came into the world’ occurred when the alleged incident on 19 October happened.

I mention these matters to highlight that a central part of the defence case relied upon the jury giving very careful consideration to the context relationship evidence led by the Crown or adduced by the defence in cross-examination. The examination of that evidence went to the heart of the defence case challenging the credibility of the complainant. As the defence said, the evidence that the father gave essentially was to deny the allegations.

The evidence was not just history given by the complainant of events preceding the weekend in question as the trial judge said. Much of it was led or amplified on in the cross-examination of the complainant. The context relationship evidence and in particular how it evolved formed an essential part of the defence’s case. The trial judge’s direction that ‘[i]t is not a factor for your consideration, in the sense of any conclusion being required to be reached’ was correct in itself. The direction was true in the sense that the jury were not to substitute a finding about the uncharged acts for the finding that they were required to make on the two counts.

On the other hand, the evidence was sought to be used by the defence to undermine the credibility of the complainant. The defence had asked the jury to give very careful consideration to the relationship evidence. The defence had asked the jury to find that the evidence of the alleged prior inappropriate sexual behaviour was not credible and that accordingly the complainant’s evidence of the alleged conduct on 19 October was subject to reasonable doubt. As indicated above, the defence sought to align the complainant’s evidence of the alleged prior inappropriate sexual behaviour of her father with that of Ms Fraser’s analysis of the behaviour of young girls who make complaints that may be unfounded. The defence sought to show that the very matters that Ms Fraser relied on to doubt that complainant had been subjected to abuse could be discerned in the way the complainant’s evidence of the alleged prior inappropriate sexual behaviour of her father, according to the defence, ‘wax and wane and change.’

The judge’s direction that the evidence of the alleged prior inappropriate sexual behaviour of the father was not a factor for their consideration may have led the jury to reason that they could assess the complainant’s credibility about the alleged events of 19 October without evaluating that evidence in the context of the allegations she had made of her father’s prior inappropriate sexual conduct including the course and form in which those allegations evolved and developed.

The trial judge gave a detailed summary of the defence’s cross-examination of the complainant. I accept in doing so he informed the jury that the history evidence was part of the defence case in attacking the complainant’s evidence. He told the jury that he would normally summarise the case for the prosecution and the defence. He said however, that he had referred to it in summarising the evidence. He said he would be repeating himself to summarise the defence case.

The defence case was only fully exposed in the defence counsel’s final address where counsel for the defence drew together the various threads of his adducing evidence of alleged prior inappropriate sexual conduct of the applicant to seek to undermine her credibility and to reinforce the evidence of Ms Fraser. I do not consider a summary of the cross-examination did properly summarise the defence case.

As discussed above, counsel for the defence took exception to the trial judge’s direction and squarely raised the issue that his direction ‘takes the wind out of ‘ his submissions to the jury. In my opinion, counsel’s exception was well founded.

I am satisfied that the trial judge did not give appropriate directions as to the use and non-use of the context relationship evidence in the context of this case. His failure to give proper directions as to the use of the complainant’s evidence of prior inappropriate sexual behaviour by her father also raised the risk of impermissible reasoning by the jury. In my opinion, the trial judge’s directions raised the real risk that the jury failed to consider all the relevant evidence when assessing the complainant’s credibility.

In summary, in my opinion, the applicant did not receive a fair trial through the failure of the trial judge to instruct the jury on the proper use of the evidence of alleged prior sexual misconduct by the complainant’s father, the judge’s instruction about such evidence not being a factor for their consideration in the circumstances where the defence was relying on such evidence to discredit the complainant, and the failure of the judge to give a propensity warning.

I would uphold ground 3 of the objections.

Ground 4

The applicant contends that the trial judge erred in his directions to the jury in that:

(a)having summarised the argument of the prosecutor he said that it was improbable that what the complainant had said was ‘untrue’, ‘a totally invented account’, ‘an invented account’ or ‘an invention’;
(b)he then failed to summarise the argument of defence counsel that there was a reason as to why the complainant would make a false allegation [that she had been sexually assaulted by the applicant], namely, she had been ‘caught in this Family Law dispute’.

The applicant contends that in his charge to the jury, the trial judge referred to and summarised the submission made by the prosecutor in his final address to the jury, namely, that it was improbable that the account given by the complainant concerning the conduct of the applicant over the weekend in committing the two offences upon the complainant was ‘totally invented’. The summary on the improbability of the complainant inventing her allegations covers some two pages of transcript. The judge recognised that the defence had an argument to meet the essential improbability argument of the Crown by saying that counsel for the defence faced that argument, but did not give any further detail of how the defence did face the argument.

The applicant says that trial judge’s detailed reference and summary to the Crown submissions could only have raised the question in the minds of the jury of why would the complainant give such an account, unless that account was true.

The applicant says that in these circumstances, the trial judge was bound to explain to the jury that not only had this question been dealt with by defence counsel in his final address to the jury, but also the manner in which defence counsel had done so. Defence counsel took exception to the failure of the trial judge to provide this explanation to the jury, however, the trial judge determined not to re-direct the jury with respect to this matter. The applicant contends that the judge’s failure to summarise the opposing argument meant his charge was unbalanced and unfair.

The Crown contends that the defence case rested on a denial that either of the alleged offences occurred. The Crown says that to that end the defence rested heavily on discrediting the complainant’s evidence in a lengthy cross-examination. The Crown says that the trial judge related the extensive cross-examination of the complainant in his charge to the jury, summarised the defence credit attack and summarised the applicant’s evidence.

The Crown contends that the jury were adequately apprised of the issues in the case, the evidence bearing upon those issues and the nature of the defence case. The Crown says that the trial was brief and the questions to be determined were straightforward. The Crown contends that the trial judge complied with his obligations to deliver a fair and balanced charge.[44]
[44]Werry v The Queen [2010] VSCA 314.

It may have been preferable for the trial judge to remind the jury of the detail of the defence’s argument. The trial judge did, however, remind the jury that the defence had an answer to the Crown’s contention that it was unlikely the complaint would not be telling the truth about the alleged offending. The jury were aware of that defence’s answer as counsel for the defence had addressed the jury on the defence’s answer.

I am not satisfied that ground 4 of the objections is made out.

Ground 5

The applicant contends that the trial judge erred in his directions to the jury concerning the evidence given by the Crown witnesses, Ms Murphy, Ms Grace and the mother of the complainant, of complaints made by the complainant to them that the applicant had touched her ‘private parts’ or ‘private spot’. The applicant provides the following particulars of the alleged errors in the directions:

(a)The trial judge failed to direct the jury that it was a question for the jury as to whether this evidence was consistent with the complainant having been sexually assaulted.
(b)The trial judge failed to direct the jury that it was a question for the jury as to whether the delay in the complainant making these statements of complaint was inconsistent with the complainant having been sexually assaulted.

The applicant accepts that under the Act, evidence of ‘recent complaint’ is relevant both as evidence of the truth of the facts asserted therein and as evidence relevant to the credibility of the complainant.[45]
[45]See for example R v H (1997) 92 A Crim R 168; R v BD (1997) 94 A Crim R 131; and Papakosmas v The Queen (1999) 196 CLR 297.

The applicant says that the trial judge’s directions were wrong, in that the directions positively assumed that the evidence of ‘complaint’ was (as distinct from may be) consistent with the complainant being the victim of a sexual assault.

The applicant says that whether or not the complainant’s evidence was consistent with the complainant being the victim of sexual assault was a question of fact for the jury. The applicant relies on R v Freeman[46] where the Full Court of this Court held that:[47]

[t]he ultimate question must always be does the ‘complaint’, in the circumstances in which it was uttered, tend to buttress the prosecutrix's credit as a witness. This, of course, is a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial Judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proffered evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge.

[46](1980) VR 1.

[47]Ibid 6.

The applicant says that in those circumstances, the trial judge’s directions were expressed in such a manner as to withdraw an important question of fact from the jury to the prejudice of the applicant’s case.

The Crown says that the trial judge made it clear early in his charge that the facts were a matter entirely for the jury’s domain and it is unlikely that the evidence about the complaint would escape that direction.

The applicant further says that, with respect to the directions concerning the complainant’s delay in making a complaint, the trial judge erred in failing to direct the jury that, if they found the complainant had delayed in making a complaint, this finding was relevant to the credibility of the complainant, and that it was a matter to which the jury was entitled to have regard in determining whether or not to accept her evidence. The applicant contends such a direction is required by Crofts v The Queen.[48] Defence counsel had raised delay in making a complaint as a matter going to the credibility of the complainant.
[48](1996) 186 CLR 427 (‘Crofts v The Queen’).

On redirection the trial judge dealt with the issue of delay in making the complaint as follows:

With regard to the suggestion of delay I should tell you that the law is that if there is a delay in the making of the complaint, the law provides that the trial judge must inform the jury that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it. That issue has of course been canvassed before you. She was asked why she took as long as she did, and an explanation was provided. Mr Traczyk, both in cross-examination and in his final address, criticised that and suggested that in the circumstances if those incidents had occurred she would have complained more promptly than she did before she went away on the school camp or indeed when she came back, or on the camp itself.

In my opinion, this direction satisfactorily brought to the jury’s attention that delay in complaint was a relevant matter to consider in evaluating the complainant’s evidence. I do not accept the applicant’s contention that the trial judge failed to direct the jury on a matter which bore upon a critical issue in the trial, namely, the credibility of the complainant.

For the reasons given by the Crown, I am not satisfied the objection concerning withdrawing from the jury the factual issues of complaint has been made out. I am also not satisfied that that the trial judge erred in failing to direct the jury that delay in complaint may affect the credibility of the complainant.

I reject ground 5 of the objections.

Ground 6

The applicant contends that the trial judge erred in his directions to the jury in failing to summarise, either sufficiently or at all:

(a)the sworn evidence of opinion given by Ms Fraser, the psychologist, and the basis of that opinion;
(b)the sworn evidence given by the applicant.

This ground was dealt with as part of ground 8.

Ground 7

The applicant contends that the trial judge erred in his directions to the jury in that he failed, either sufficiently or at all, to warn or direct the jury that the jury was bound or required to subject the evidence given by the complainant to especial scrutiny in the circumstances of the case, those circumstances including:

(a)the complainant had admitted to telling lies on previous occasions in order to achieve her wishes concerning custody and access;
(b)the complainant had a motive to make false allegations against the Applicant;
(c)there were several significant inconsistencies in the evidence given by the complainant;
(d)there was sworn evidence of opinion given by Barbara Anne Fraser, the psychologist, namely, she ‘held [a] doubt that what [the Complainant] was saying could be substantiated enough to suggest that this had occurred’.

The applicant says that the cross-examination of the complainant disclosed a number of matters which required a direction by the trial judge to avoid a perceptible risk of a miscarriage of justice. The applicant relies on R v Militec.[49]
[49][1997] 1 VR 593.

In R v Miletic this Court dealt with this issue as follows:[50]

We readily acknowledge that there are rules prescribing the directions that a judge must give in particular classes of case. The warning required with respect to the evidence of an accomplice is a familiar example. But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.
There are four aspects of that general principle that we desire to mention. First, we emphasise the words ‘necessary and practical’ and ‘perceptible’. A perceptible risk is one that is real or of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge's office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. Thirdly, an appellate court will attach weight to the judge's assessment of what was required and, in appropriate cases, will infer from counsel's not taking an exception that the direction in question was not required. Fourthly, the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice.

[50]R v Miletic [1997] 1 VR 593, 605 (Winneke P, Charles and Callaway JJA).

The applicant says these matters included the circumstances listed within ground 7, namely:

(a)the complainant has admitted to telling lies on previous occasions in order to achieve her wishes concerning custody and access;
(b)the complainant had a motive to make false allegations against the applicant;
(c)there were several significant inconsistencies in the evidence given by the complainant, namely:
–the failure to describe to the investigating police officer in the VATE-tape the uncharged acts
–the failure to detail to her mother the uncharged acts;
–the fact that the complainant said that she was able to be happy subsequent to the commission of the two offences whilst participating in the school camp;
–the delay in making the complaint concerning both the uncharged acts and the two acts the subject of the two charged offences;

(d)there was sworn evidence of opinion given by Barbara Anne Fraser, the psychologist, namely that she ‘held [a] doubt that what [the complainant] was saying could be substantiated enough to suggest that this had occurred’.

The applicant contends that the trial judge, however, failed to give any direction or warning (or comment even) to the jury concerning the evidence of the complainant and the manner in which the jury was bound to (or might) consider the evidence of the complainant.

Defence counsel took exception to this failure of the trial judge to give such a warning. The trial judge, however, determined not to redirect the jury concerning this matter.

The Crown says that Miletic is simply authority for the proposition that there are some occasions in which a special warning may be necessary. The Crown says that in this case there was nothing remarkable about the complainant’s evidence that would require such a direction from the judge.

I accept the contentions of the Crown.

Ground 7 is not made out.

Ground 8

The applicant contends that the trial judge erred in his directions to the jury in failing to explain, either sufficiently or at all, the nature and content of the defence case.

The applicant contends that a trial judge is under a duty, inter alia:

(a)to summarise for the jury the evidence which is relevant to the fact(s) in issue, and to do so by reference to the issue(s) in the case; and
(b)to summarise counsel’s arguments and, in this regard, to summarise the way in which the defence case has been put so that the case for the defence has been adequately explained and placed before the jury.

The applicant says that Ms Fraser, a psychologist, social worker and family therapist, was called as a witness for the defence. In his charge to the jury, the trial judge made reference to only some of the sworn evidence given by Ms Fraser. The applicant says that in his charge to the jury the trial judge referred to only one aspect of Ms Fraser’s evidence when he quoted her conclusion:

Can you express that ultimate opinion in any other words, the opinion you've just expressed? Yes, yes. I held doubt that what the complainant was saying could be substantiated enough to suggest that this had occurred.

The applicant says that the trial judge failed to summarise the seven or eight grounds given by Ms Fraser to support her conclusion. The trial judge instructed the jury:

That’s not the same question that's before you but nevertheless of course it’s a very relevant opinion and was much emphasised by Mr Traczyk in the course of his final address. I’m not going to go through the factors referred to by Ms Fraser. But the substance of the cross-examination by the prosecutor was, in effect, and the comment that he made to you subsequently in the course of his final address, was that it is an opinion from someone who has not even seen any of the evidence that you’ve seen. She’s not seen the VATE tape; she’s not seen the special hearing.

The applicant says that the trial judge concluded by summarising the prosecutor’s case about Ms Fraser’s evidence, without summarising Ms Fraser’s evidence that was central to the applicant’s defence.

The applicant says that in this case, the applicant himself gave sworn evidence in his defence. In his charge to the jury, the applicant says that the trial judge made reference to some only of the sworn evidence given by the applicant.

The applicant contends that in his charge to the jury, the trial judge did not make any reference to the submissions which had been made by defence counsel concerning both the sworn evidence that had been given by the applicant and the effect of that evidence. The applicant says that the trial judge did not explain to the jury the nature and content of the defence case.

The applicant submits as follows:

[the trial judge directed the jury]. ‘The accused man went on to give you a history of the marriage and the break-up and in the course of doing that he denied that anything abnormal occurred on the weekend in question, and specifically on the day in question he gave an explanation as to why the complainant did not go to school on the 20^th and the sequence of events which he said contained no event of the character described by her, in other words, the offences were not committed and that he was not guilty of the charge.
Of course he provided considerably more detail than that but that’s the substance of what he said. With regard to the conversations alleged, which I did not refer to in summarising Taylor’s evidence, although I intended to, but I’m sure you will recall the general conversations that she mentioned about the jumping castle and the claim with regard to oral sexual activity between himself and his wife and the blow-up doll. He said that those conversations had never taken place and he denied ever having described her as hot and sexy. That really is all I think I need to put before you in reminding you of the evidence of the accused man.’
Now, with respect, that’s as unfair as you can get. Justice Redlich made reference to this in [R v Thompson[51]]. At paragraph 140 His Honour said, and … ‘If the accused has given an account by way of sworn evidence or interview there ought to be either a summary of that evidence or alternatively the relevant parts of that evidence could be referred to in answer to each part of the Crown case as it is separately summarised. A failure to advert by some method during the charge to the substance of the applicant's account will ordinarily mean that the case for the accused has not been adequately placed before the jury.’

[51](2008) 21 VR 135.

The applicant claims that he got no summary. Mr Holdenson said:

That he didn’t get any summary of that evidence about the course of the marriage, the course of the matrimonial break-up, what occurred subsequent to that, his detailed description about his usual practice with respect to the bathing and the removal from the bath of the complainant, his detailed denials, the page that’s devoted, in fact it's more than a page that's devoted to, ‘Not only did I never say that jumping castle business’, remember the complainant said he was drunk when he said it, he talks about his drinking habits, how his drinking habits were assessed by the Family Court. He doesn’t drink to excess. He details those drinking habits. He talks in detail about the Monday, that's the day after, that’s the day after the night of the alleged offending. He gives detail about how they bought and looked at that DVD ‘Little Miss Sunshine’. He details prior to the holiday camp, the Tuesday, the Tuesday night, taking her to school. His surprise when she wasn’t there after the holiday camp when he returned to pick her up, how his concern for her not being there was manifested, how it was on the Sunday morning the lady behind me conveyed to him, because it was on the Sunday morning that the solicitor, his solicitor was provided with detail concerning these allegations of sexual abuse, his spontaneous and immediate response, all described. He talks about how he finds it abhorrent to talk - he doesn’t talk in that way about people, I’m talking about questions 96 and 99 - about his ex-wife being fat, jumping castles, he doesn’t talk like that. The phrase hot and sexy. There’s pages of it. The evidence-in-chief, to which no objection was taken on the basis of relevance, goes from 470-491 without interruption, and it gets what I told you.
Now that’s as unfair and the defence barrister at the trial said it was unbalanced and in my submission it was. His defence was his own sworn evidence and the evidence of Fraser, the expert witness from the Family Court, and neither of them got summarised.

In those circumstances, the applicant contends that the trial judge failed to comply with the duties imposed upon him. The applicant says that defence counsel took exception to these matters, submitting that the charge to the jury ‘was unbalanced in that it did not properly present the defence case.’

The trial judge determined not to further direct the jury with respect to these matters. In those circumstances, the applicant contends that he has been denied a fair trial and that the charge to the jury was ‘unbalanced’.

The Crown says that no harm was done by the failure of the trial judge to summarise the grounds Ms Fraser relied on. Mr McArdle did concede the trial judge’s directions:

… at least as to the arguments advanced by both counsel were not as full as they may well have been. The question there is what the consequence of all of that is. This may well be one of those cases, and it is submitted that it is, where again no harm was done. It is a relatively short case, short issue, did it or did it not happen, and the other matters as to why it might be thought that it didn't happen or it did happen, would, it might be thought, be fresh in the minds of the jury.

Defence counsel summarised Ms Fraser’s evidence in detail in his final address. The trial judge summarised the applicant’s own evidence. I agree with the Crown that no harm was done.

I would reject this ground based on the trial judge’s failure to summarise the defence case as put in final address, as contended for by the applicant on this application, save insofar as the objection raises the matters in ground 3.

Ground 9

The applicant contends that there has been an aggregate of errors and/or defects in the trial of the applicant and, as a consequence, there has been a substantial miscarriage of justice.

For the reasons already expressed, I would uphold this objection.

The proviso

The applicant says that, given the nature of the error and the fact that the case turned substantially on the credit of two principal witnesses, namely, the complainant and the applicant, neither of whom this Court has seen or heard, this Court is precluded from applying the proviso.[52]
[52]R v Vas (2006) 170 A Crim R 452, [32] and [33], 459; and R v Rajakaruna (No 2) (2006) 15 VR 592, [5] and [71], 594 and 612–613.

The applicant concludes by contending that there has been a miscarriage of justice and the convictions sustained by the applicant should be quashed and a retrial should be directed.

I accept these submissions.

Application for leave to appeal against sentence

As I propose to grant the application for leave to appeal against conviction, it is unnecessary to deal with the application for leave to appeal against sentence.

Conclusion

I would grant leave to appeal on conviction, allow the appeal, quash the conviction and remit the matter for retrial in the County Court.

- - -

An inference from circumstances that on a specific occasion an act of adultery or of incest took place between a man and a woman may be uncertain until it appears that a previous sexual relationship existed between them, but the addition of that fact may remove doubt.

Count on Presentment	Offence	Maximum penalty	Sentence	Cumulation
1.	Indecent act with or in the presence of a child under 16 years (s 47 Crimes Act 1958)	10 years	12 months	3 months cumulative
2.	Incest by parent (s 44(1) Crimes Act 1958)	25 years	3 years, 4 months
Total Effective Sentence:		3 years, 7 months
Non parole period:		2 years, 3 months
Pre-sentence detention declared:		6 days

[2011] VSCA 347

11 November 2011