//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] VSCA 108
Court of Appeal (Vic)
2010-05-07
WEINBERG, MANDIE and BONGIORNO JJA
Original judgment source is linked above.
R v Anderson (Unreported, County Court of Victoria, Judge Sexton, 5 May 2008)
CRIMINAL LAW - Applicant convicted of one count of indecent act with a child under 16 and one count of sexual penetration with a child under 16 - Whether verdict of guilty on count involving penetration unsafe or unsatisfactory - Whether aggravating circumstances of count made out - Prosecutor's remarks in closing address - Whether jury should have been discharged - Admissibility of complaint evidence - Application for leave to appeal against conviction on count of sexual penetration granted - Appeal otherwise dismissed.
1 After a trial lasting some seven days, the applicant was convicted on 5 May 2008, in the County Court at Melbourne, on one count of wilfully committing an indecent act with a child under the age of 16 (count 1), and one count of taking part in an act of sexual penetration with a child under the age of 16 (count 2). He was acquitted of a third count in which it was alleged that he had committed the offence designated in count 1 in the presence of his own daughter, a child under the age of 16.
2 The victim of these offences was a young girl, KB, who was aged 11 at the time. The indecent act, which was the subject of count 1, was particularised as the touching of the girl's vagina. The act of sexual penetration, which was the subject of count 2, was particularised as the introduction of the applicant's finger into the girl's vagina.
3 The applicant was sentenced to two years' imprisonment on count 1, and four years and six months' imprisonment on count 2. Both sentences were to be served concurrently. A non-parole period of two years and six months was fixed.
4 The applicant now seeks leave to appeal against both conviction and sentence.
5 On a date unknown, but said to be between 1 and 23 January 2006, KB visited her school friend NA at her home in Narre Warren. The house was occupied, at the time, by the applicant's wife and seven children. Later that afternoon, KB went home for dinner. She then returned to NA's home for a sleepover.
6 That night, KB was sitting in the lounge room watching television. Also present were the applicant, NA, her younger sister, LA, and one of NA's brothers. The movie they were watching apparently featured naked and partially clothed women dancing. According to KB, she and the other children asked the applicant to change channels. However, he refused to do so.
7 Later that evening, NA and her brother left the lounge room and went to bed. That left KB and the applicant seated together on the couch. LA was sitting on the floor, probably asleep.
8 According to KB, as she herself began to nod off, the applicant placed his hand on the inside of her thigh, and slid it underneath her bathers. He then rubbed her vagina with his hand. That conduct gave rise to count 1. KB said that the applicant then inserted his finger into her vagina. That conduct gave rise to count 2.
9 According to KB, she asked the applicant to stop, and moved away from him. He then said to her 'I hope you like what I did', to which she replied 'No'. He then asked her if she wanted to 'have some fun' with him, and she again said 'No'. She then went off to sleep in one of the bedrooms in the house.
10 KB said that the following morning she woke, gathered her clothing, and went home. Shortly thereafter she told her elder brother, MB, what had happened. MB was aged 13 at the time. According to KB, her brother suggested that she tell their mother what the applicant had done. However, she did not do so.
11 KB also said that, on the day after the sleepover, she told NA what the applicant had done to her. According to KB, her friend asked her not to tell anyone else because, if she did so, her father would go to prison.
12 On 10 February 2006, after school had recommenced, KB was asked by a staff member whether anything was troubling her. She told that staff member, and another teacher, that the applicant 'had tried to rape' her. KB's mother was then immediately summonsed to the school and KB told her, for the first time, what had occurred.
13 Later that same day, KB was interviewed by the police. A VATE tape of that interview was tendered in evidence at the trial. When asked about the events of the night in question. KB indicated that she could not be specific about the date. She could only say that she thought it was some time after Christmas, but before the start of the school year.
14 KB told the police that, on the night of the sleepover, and whilst in the lounge room, she had been wearing a nightie and her bather bottoms. She told the officer questioning her that the applicant had 'touched her', and 'rubbed her'. She said nothing about any act of digital penetration.
15 The first time that that subject was mentioned in the police interview was in response to a direct question. The transcript of the VATE tape reads as follows:
Q174 Okay. Now, whereabouts did his hand go?
A I can't exactly remember.
Q175 Okay. Is there an outside and an inside bit to a vagina?
A Yeah.
Q176 Okay. Tell me which part his hand - - - ?
A Ins-, - - -
Q177 Went on.
A Inside.
Q178 Okay. How - how far?
A Not very
Q179 Okay. Tell me how it felt.
A Not very nice.
Q180 Tell me about the pain - any pain?
A There - I didn't have any pain.
Q181 Uh'huh. Okay. And tell me how long he did that for.
A Not very long, 'cos I moved away.
17 KB was then questioned further about what had taken place. The transcript continues:
Q270 Okay. And [the vagina is] made up of bits. You've got, like, an inside bit and outside bit, I think we talked about.
A Yeah.
Q271 Okay. And we spoke about Greg's hand went under your bather bottoms.
A Yeah.
Q272 And which part of your vagina did his hand touch?
A Inside
Q273 And what part of his hand touched the inside?
A I'm not sure. The fingers.
Q274 Yeah. Can you tell me a bit more about that?
A I'm not sure.
Q275 Okay. And how long?
18 The applicant was arrested some 11 days later, on 21 February 2006. He took part in a record of interview but answered 'no comment' to all questions put.
19 When called to give evidence, KB adopted the VATE tape as a truthful and accurate account. The tape was then tendered, and stood as her evidence in-chief. She was extensively cross-examined. In general terms, it was put to her that there had been no sexual contact of any kind, and that she had made up the entire story.
20 Under cross-examination, KB agreed that the applicant's wife had been present in the house throughout the entire evening. She also agreed that the wife had come into, and gone out of, the lounge room at various times, and that she had, on several occasions that night, spoken to the applicant.
21 It was put to KB that her evidence in the VATE tape differed significantly from the account she subsequently gave at the committal hearing. She acknowledged that that was so. She also agreed that she was not really sure about how the applicant had touched her, where his hand had gone, or indeed which hand he had used.
22 It was further put to KB that the first time she had ever mentioned any act of digital penetration was in response to a direct question from her mother, when confronted by her at school on 10 February 2006. KB agreed that that was so. She accepted that when she told her brother about the incident, on the day after it occurred, she had said nothing about the applicant having put his finger in her vagina. She also accepted that she had said nothing about that matter to NA, when she told her what had happened, and had made no mention of any act of penetration when she spoke to the two members of staff at school. However, she qualified that answer by saying that was 'not sure' what she had said to those four individuals to whom she had complained.
23 It was put to KB that she could not 'really be sure whether or not Mr Anderson put his finger inside your vagina or not?' Initially, she replied, 'I am sure that he touched me but I'm not sure of the exact words you are saying'. Counsel then continued, '[y]ou're saying you're sure he touched you, but what I am suggesting to you is you're not sure whether or not his finger went into your vagina?' Importantly, she responded, 'I can't exactly remember'.
24 Having said in answer to question 223, that her vagina had begun to hurt some time 'after that', KB was unable to say what precisely that meant. She was asked in cross-examination whether the pain she felt had begun at about the same time that she sustained the infection to which she had referred in the VATE tape. She made it clear, in her response, that she saw the pain as having resulted from an infection that she had sustained. She said, '[w]ell, the infection was the reason why it was hurting'.
25 KB was then asked about the discrepancies between what she claimed she had told her brother when she complained to him, and what he would say when he gave evidence. It was put to her that her brother would say that she had told him that she intended to tell their mother what had occurred. According to him, it was he who had dissuaded her from doing so. Her account, of course, was entirely different.
26 It was next put to KB that she originally told the police that she had complained to NA on the day after the incident whereas, at the committal, she said that she had not mentioned the matter to NA until 'a couple of weeks' later.
27 Finally, KB conceded that she had no recollection whatever of what she had told her mother on 10 February 2006.
28 In re-examination, KB said, in response to a question by the prosecutor, that she had been touched both on the vagina, and inside the vagina.
29 The applicant's daughter, LA, also gave evidence in-chief at the trial by way of a VATE tape. She had been only eight years old at the time of the incident. She said that KB and her elder sister, NA, had become friends at school. On the night, after the movie had finished, they had all gone to bed. They were playing in the bedroom when the applicant entered, and smacked them. They then went to sleep.
Q61 Okay. Tell me what happened on the couch that you saw.
31 When asked when all this took place, LA first said that it occurred before Christmas. However, she subsequently said that it happened 'after school started'. She said that the applicant touched KB 'on top of her clothes'.
32 NA gave evidence that a day or so after the sleepover, KB had told her that the applicant had 'touched her in the private parts'. KB had also said to her that she would 'get money' by taking the applicant to court. NA said that, at the time of the sleepover, the applicant no longer lived at their home, but rather at an apartment that he kept. She said that, even after the sleepover, KB continued to visit her at her home.
33 In re-examination, NA said that the conversation about KB making money from the incident took place at the beach, some time after the night in question.
34 KB's brother, MB, gave evidence that his sister had told him, on the day after the sleepover, that the applicant had 'tried to pull her onto his lap'. She had told the applicant to stop, but he had persisted. MB also said that KB had told him that the applicant had touched her 'in a sexual manner'. KB had asked MB not to tell their mother.
35 Under cross-examination, MB agreed that his sister had merely told him that the applicant had 'tried to touch her'. He agreed that she had never said that the applicant had actually succeeded in doing so.
36 KB's mother, DB, said that her daughter had been scheduled to attend a church camp on 23 January 2006. In the week leading up to that camp, she had complained to her mother that 'it hurt when she did wees'. She said that she saw a small amount of blood in her daughter's urine. She gave her some Ural sachets, medication that she herself had taken for a previous urinary tract infection.
37 Under cross-examination, DB said that, on 10 February 2006, the day that she first learned of her daughter's allegation against the applicant, KB told her that the applicant had put his hand down her pants while they were watching television, and that she had pushed him away. She agreed that she had previously said, at the committal, that KB had told her that the applicant had 'pulled her onto his knee'. She accepted that KB must have said that, although she no longer had any recollection of it being said.
38 DB also agreed that her daughter made no mention of any digital penetration until she asked her directly whether the applicant 'had put his finger in her vagina'. It was only at that stage that KB had answered 'yes'. DB then took her daughter to the police station.
39 Kay Maree Campbell, a staff member at KB's school, said that on 10 February 2006, KB had complained to her about the applicant's conduct. She said that the subject arose after she asked KB to come to her office. She had asked KB how she had spent the school holidays, and KB had then said to her that 'NA's father' had 'tried to rape' her. Ms Campbell then asked whether KB's mother was aware of that allegation. KB said that she had told her mother, which of course was untrue. Ms Campbell then informed Anne McGuire-Owen, the school's 'Welfare, Health and Wellbeing Co-ordinator', of what KB had said.
40 Ms McGuire-Owen said that she had met with KB on 10 February 2006. She had asked KB if everything was 'ok', and at that point, KB had burst into tears. She told Ms McGuire-Owen that the applicant had 'touched her on her private parts'. She said that KB told her that, on the day after the incident, she, together with NA, and the applicant, and various others had all gone to the beach. She said that KB told her that she had told the applicant, on that day, that she was going to tell her mother. According to KB, the applicant said 'don't start trouble. I never did that'. NA asked KB not to tell anyone because if she did, her father would go to prison.
41 The defence called no evidence. The applicant, as I have previously indicated, made a no comment record of interview.
42 Grounds 1 and 2 may, for convenience, be dealt with together. They relate specifically to count 2, the count of sexual penetration. They are in the following terms:
Ground 1: The verdict on count 2 is unreasonable and unable to be supported by the evidence, as on the evidence it was not open to the jury to be satisfied beyond reasonable doubt on the element of penetration (VATE @ qns 158 - 183 and 264 -285; evidence in chief at 199; cross examination at 217 - 219; discussion at 386 - 387).
Ground 2: The learned trial judge erred in ruling admissible question and answers in the complainant's VATE interview concerning alleged pain in the vagina and urinary tract infection(VATE @ qns 223 - 226; discussion at 20 - 22 and 35 - 39; Ruling at 49 - 51; evidence of DB at 335 - 336, discussion at 338 - 340; charge 463-465).
43 Sexual penetration is defined in s 35 of the Crimes Act 1958 as including, inter alia, the introduction, to any extent, by a person of a part of his or her body into the vagina of another person. Vagina is defined as including the 'external genitalia'.
44 It will be recalled that KB, in her VATE tape, said that she had felt no pain at the time of the alleged penetration, but claimed to have suffered pain 'after that'. She attributed that pain to an infection. So too, it would seem, did her mother, who gave her medication to treat a urinary tract infection.
45 Objection was taken, at the trial, to any evidence being led as to KB having suffered pain in the vagina, or what may have been a urinary tract infection. It was submitted that, in the absence of any medical evidence showing a possible link between the alleged act of penetration, and the subsequent pain and infection, this evidence was simply irrelevant. Alternatively, it was submitted, it should be excluded in the exercise of judicial discretion.
46 The trial judge was initially attracted to the submission that the evidence relating to the urinary tract infection should not be led. Her Honour said, at first:
As there is no more specific time frame than the month of January for the infection, which is the same general time frame as for the counts, Mr Houlihan on behalf of the prosecution concedes, and I agree, that this evidence should not be led, that is, in proof of the events happening as alleged. Any probative value is outweighed by the prejudicial effect and therefore it cannot be led for that purpose.
47 Having indicated that the evidence as to the infection should be excluded, the trial judge revisited the matter, and went on to say:
However, in [KB's] answers to Questions 223 to 226, all of which Mr Cosgriff submits should be excluded, there remains for decision whether those questions and answers should remain in the evidence as going to another purpose. Question 222 asks the question, "And how did you feel the next day?" That was probably meant to be a question of whether [KB] felt pain, but was badly phrased as to a question of how she felt. The direct but non-leading question which followed at 223, "Did anything hurt?" produced the answer that her "vagina started to hurt after that." I am of the view that this question and answer [is] admissible for the Prosecution to rely on in proof of the penetration which is alleged. That is, it makes the penetration more likely.
[KB] then goes on to say, "And I got an infection" and then describes being given something to drink by her mother who she said had had an infection and that [KB] did not go to the doctor. The evidence from her mother at the committal shows that this is a reference to the urinary tract infection which the mother treated without medical attention, and evidence about which I have just ruled cannot be led for the purpose of proving penetration or proving the events overall.
However, in my view there is another purpose for which this evidence might be led. I discussed this briefly with counsel yesterday afternoon. That purpose is to provide evidence of a possible cause of pain in the vagina other than as caused by the alleged penetration. It is in the same time frame and in her answers 223-226 [KB] might associate the two but equally it could be that they are unrelated.
It seems to me that if question and answer 223 are admissible, that is in respect of her vagina hurting after "that", which I have ruled the Prosecution should be able to rely on, then the defence should be able to argue if it so chooses that there may be other reasons why the vagina might be hurting other than the alleged penetration. A urinary tract infection is one reason and if the answers 224-226 are admissible then the evidence would be there for the defence to rely on. Without that evidence being before the jury the argument as to other reasons could be seen as speculative.
There would need to be a direction as to this being the sole purpose for which the evidence of the infection is led and that the jury cannot use it to find penetration. Its purpose in being admitted is to provide a possible cause for her vagina hurting other than the alleged penetration, which possible cause the jury would have to exclude beyond reasonable doubt before they could use vaginal pain as part of their reasoning towards guilt, that is, that the penetration as alleged took place. Therefore I propose to allow question and answers 223-226 to remain in evidence and directions will be given as I have referred to, and I so rule.
48 In dealing with KB's evidence regarding the pain that she later suffered, and the possible urinary tract infection, in this way, her Honour, in my respectful opinion, fell into error.
49 In the course of his submissions, counsel for the accused reminded the trial judge that KB's description of the alleged penetration suggested that whatever occurred had involved but a fleeting moment. He also reminded her Honour that KB had said that she had not, at the time, felt any pain. He submitted that, in the absence of medical evidence, her answers to questions 223 and 224 in the VATE tape, referring to pain at some time 'after that', could not properly be linked to the alleged penetration.
50 In her ruling, the trial judge accepted that KB's evidence regarding the later pain was vague, and certainly not connected, in any temporal sense, to the alleged offence. Her Honour also accepted that it was quite possible that the later pain was unrelated to any act of digital penetration, particularly in light of KB's own evidence linking that pain to an infection. However, she was not persuaded that this meant that the evidence concerning pain was irrelevant. She considered that it would be open to the jury to infer that the pain had been brought about, in some unspecified way, by the earlier act of alleged penetration.
51 In effect, the trial judge, by so ruling, 'disconnected' KB's answer to question 223 (pain - which she regarded as admissible), from her answers to questions 224 to 226 (the infection - which she regarded as inadmissible). With respect, her Honour ought to have excluded the evidence of later pain as irrelevant, and inadmissible. It goes without saying that she also ought to have excluded the evidence concerning the infection.
52 The only reason why the evidence as to the infection was received was because, to do otherwise, once the evidence as to pain had been led, would have been unfair to the accused. The evidence as to the infection provided a possible explanation as to the later pain which was consistent with innocence.
53 Instead of holding, as she ought to have done, that neither the evidence of subsequent pain, nor the evidence of the infection, was relevant, her Honour allowed the wrongful admission of the evidence of pain to justify a further wrongful admission of the evidence as to the infection. She did so with the best of intentions, but the result was to permit evidence that had no real probative value to be placed before the jury, with the risk that they might act adversely to the applicant upon it.
54 Counsel for the applicant, to his credit, continued to press her Honour to revisit her ruling. He persisted in arguing that KB's answers to questions 223 to 226, in their entirety, were irrelevant and inadmissible. He submitted that to allow this evidence to be led would be to invite the jury to engage in nothing more than speculation and conjecture.
55 Her Honour responded to that further submission in the following terms:
They would have to be told there is no evidence as to the causes of a urinary tract infection, but what they're really concentrating on is whether the vagina is hurting because of there having been a penetration or because of an infection which was unrelated.
56 In substance, therefore, the basis of her Honour's ruling was that the evidence of later pain somehow made the allegation of digital penetration 'more likely'.
57 Ultimately, her Honour directed the jury in those precise terms. She said:
Now there is just one final matter that I want to take you to in respect of the evidence of [KB], and assessing her as a witness, and that was that she gave evidence in her recording that her vagina started to hurt after the incident, and she gave evidence that she got an infection for which her mother gave her a drink. In cross-examination when asked how much later did her vagina hurt, [KB] said that she could not remember, including not remembering whether it was weeks or months. She then said that the infection was the reason her vagina was hurting.
Her mother gave evidence that about a week before the church camp, which began on 23 January 2006, [KB] complained of pain while passing urine and [DB] observed a small amount of blood in the urine. She gave [KB] Ural sachets which [DB] still had from a urinary infection she herself previously had.
Now I give you the following directions about the evidence of vaginal pain, and the evidence of the infection. There may be a number of causes for vaginal pain. There may be a number of causes for an infection in the vagina. The evidence that [KB] said that her vagina hurt may make it more likely that the penetration of the vagina occurred as alleged. That is a permissible line of reasoning. The evidence that [KB] had an infection was admitted into evidence as it is another reason why [KB] might have had vaginal pain, besides the alleged penetration.
So the only reason that you have the evidence of infection before you, is to provide evidence of a possible cause for the vagina hurting other than the penetration. There is no medical evidence, in this case, as you are well aware, so there is no evidence before you of a medical nature to allow you to draw any link between the infection and the penetration, and I direct you that you must not say if you find that [KB] had a vaginal infection, that it means therefore that the alleged penetration occurred, you must not attempt to draw that link. That would be wrong, and not in accordance with the evidence, and therefore not in accordance with your oath.
Vaginal pain might be caused by penetration but before you could say that the vaginal pain made the alleged penetration more likely, you would have to exclude the possibility of the infection separately causing the vaginal pain without any penetration having happened. So the only purpose for which you can use the evidence of infection, if you accept that evidence, is to provide a possible cause for vaginal pain, other than the alleged penetration.
You must not use the evidence of infection to find that the penetration occurred, and before you can reason that the vaginal pain makes it more likely that the penetration occurred, you must exclude, beyond reasonable doubt, the possibility that the pain was caused separately by the infection This is a place where you must apply the direction about the drawing of inferences which I gave you yesterday, that is you have to be satisfied beyond reasonable doubt about the facts necessary to draw the inference that the vaginal pain makes the penetration more likely. You have to find that it is the only reasonable inference open to you.
If another reasonable inference is open on the facts, that is an infection caused the pain, and it is a matter for you about that, and you cannot exclude that reasonable inference then you would have a doubt about the other inference and you would not be able to draw the guilty inference or the inference reasoning towards guilt that the vaginal pain made the penetration more likely.
58 Her Honour's direction to the jury that they could not find that the urinary tract infection that KB sustained (assuming that she in fact did have that condition) had any connection with an earlier act of digital penetration was obviously correct. Such a finding could not be made, in the circumstances of this case, in the absence of any medical evidence to support it.
59 For whatever reason, the Crown chose not to lead any such evidence. It may be that the prosecutor believed, in some way, that he could rely upon it being common knowledge that urinary tract infections are often associated with various forms of sexual activity. However, that is by no means the only way in which such infections are contracted. Given the particular facts of this case, if the Crown wished to establish the likelihood of such a link, it had to provide medical evidence in order to do so.
60 It should be noted that the Crown expressly denied, at trial, that it placed any reliance upon a link between digital penetration and a urinary tract infection. Indeed, the Crown's position at trial was a curious one. It acknowledged that the evidence as to the infection was irrelevant, and sought to have it excluded. On the other hand, it submitted that the evidence that KB had suffered pain at some undefined stage after the alleged offences, should be admitted.
61 In my opinion, the trial judge was entirely justified in concluding that such a course would have been unfair. She was also correct in holding that, if the evidence of later pain went in, so too must the evidence of the infection. The difficulty was that there was simply no foundation for the reception of the evidence of pain, and therefore, no need to receive the evidence as to the infection.
62 Her Honour's decision to allow the evidence of pain to be led left the jury uninstructed, and at large, in speculating about a connection between the alleged offence, and the subsequent pain. That created a difficult, if not impossible, task for the jury. The evidence as to the pain that KB eventually felt was vague in the extreme. She could have been describing something that occurred weeks after the night in question. The pain might, or might not, have been linked to an infection, which might, or might not, have been a urinary tract infection. Certainly KB believed the pain to be connected to an infection, and her mother thought it might be a urinary tract infection. Yet the jury, who had to decide the significance of all this, were told that they could not conclude that the infection itself had any connection to any earlier alleged act of penetration.
63 Before this Court, the Crown submitted that, whether or not later pain was connected in some way to an earlier act of digital penetration was simply a question of fact. As with any other question of fact, the jury would resolve it in accordance with their collective knowledge and experience.
64 I am unable to accept that submission. In my opinion, it was necessary in the particular circumstances of this case, to provide a proper foundation if the evidence of later pain was to be received. There having been no such foundation, that evidence was irrelevant.
66 That takes me to ground 1. In considering whether the verdict on count 2 is, relevantly, 'unsafe or unsatisfactory', I proceed on the basis that the evidence regarding both later pain, and the infection, is excluded. It would be wrong to do otherwise.
67 The test for determining whether a verdict is 'unsafe or unsatisfactory' is that laid down in M v The Queen.[1] There, a majority of the High Court, comprising Mason CJ, and Deane, Dawson and Toohey JJ, observed:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe", or "dangerous or unsafe". In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".
...
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
...
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [2]
68 In the present case, KB said, during the course of her interview with the police, that the applicant had inserted his finger into her vagina. However, that response came shortly after she had been questioned by her mother, in a leading way, regarding that matter. It is of some significance to note that in describing what had occurred, she did not volunteer that information. It came only after the police officer asked her directly whether the applicant had put his finger 'inside or outside' her vagina.
69 When cross-examined at the trial, some two years later, KB was much less certain about what had occurred. That is hardly surprising having regard to her age, and the time that had elapsed. Nonetheless, it is a matter of some significance. The transcript of the cross-examination reads as follows:
When you were asked questions by the policeman Mr Roberts in that tape about how Greg Anderson touched you, what I suggest to you is that you basically told Mr Roberts that you weren't really sure about how he touched you. Would you agree with that?---Yes.
You're not really sure where his hand went?---No.
...
I suggest to you that the first person you told that Mr Anderson had put his finger inside your vagina, was your mother?---I'm not sure.
...
What I suggest to you, [KB], is that even on the account that you've given to this court through the police tape and what you've told us when I've been asking you questions, you can't really be sure whether or not Mr Anderson put his finger in your vagina or not?---I don't understand the question.
...
You can't say, you can't be really sure whether or not Mr Anderson put his finger inside your vagina or not?---I'm sure that he touched me but I'm not sure of the exact words that you're saying.
You're saying that you're sure that he touched you, but what I'm suggesting to you is you're not sure whether or not his finger went inside your vagina?---I can't exactly remember.
70 KB's answers reflect an imprecise and uncertain recollection of events, though they do not, in my opinion, cast doubt upon her truthfulness. Having myself viewed the VATE tape, I should say that she struck me as being an honest witness.
71 However, that is not the end of the matter. The task for this Court is to have regard to the evidence in its entirety. In accordance with M v The Queen, we must consider for ourselves whether, on the whole of that evidence, we have a reasonable doubt as to the guilt of the accused. In the context of count 2, that means proof of penetration, as well as an intention on the part of the applicant to penetrate.
72 Having now undertaken that task, my opinion is that the finding of guilt on count 2 cannot be sustained.
73 My reasons are as follows. First, KB's evidence as to whether there had been any actual penetration was given in only the vaguest of terms. It may be that this was because the evidence was given by way of VATE tape, rather than elicited through detailed questioning by a competent and experienced prosecutor. Nonetheless, in a case of this kind, where separate counts of indecent act and sexual penetration were included in the presentment, it was essential, in my view, to have as detailed an account of precisely what occurred as could reasonably be obtained.
74 Next, the actual penetration, as KB described it, seems to have taken but a moment. There was nothing to suggest otherwise. As she herself acknowledged, it caused her no pain.
75 It must also be remembered that KB was aged 11 at the time of the incident. The situation in which she found herself, being sexually assaulted by her friend's father, must have been extraordinarily traumatic. It is likely that any child, asked to recount in detail the events surrounding such an incident, would have difficulty in giving a clear and coherent account of precisely what occurred.
76 Next, it must be remembered that, although KB had complained to a number of people about the incident, she did not, at any stage, tell anyone that the applicant had digitally penetrated her until her mother suggestively asked her, on 10 February 2006, some weeks afterwards, whether the applicant had 'put his finger inside her vagina'. Though it is understandable why her mother put the question in that way, it was, of course, highly leading. It is at least possible that the question itself planted the idea that there had been penetration into the mind of KB. It is also possible that, having had that idea implanted, she herself became convinced that penetration had occurred.
77 It seems from her answers in cross-examination that KB was not able to distinguish, with any certainty, whether the applicant had touched her 'on' the vagina, or whether he had actually put his finger 'into' her vagina. The law in this State, as it has stood for some time, has an extended definition of 'vagina', since it includes the 'external genitalia'.[3] As soon as there is any penetration by a finger into any part of the vagina as defined, no matter how slight, and no matter how fleeting, and when accompanied by the requisite intention, the offence is converted from an indecent act, into an act of sexual penetration. The latter, of course, carries a heavier penalty. That makes it all the more important, in a case such as this, to ensure that the evidence as to actual penetration is brought out with precision.
In the circumstances of the case, however, this was not sufficient. The phrase "external genitalia" is not in ordinary usage. It could not be assumed that every member of the jury would readily understand what the phrase connoted. In our view, it was essential - given the contest over what had actually occurred - that the judge be quite explicit in explaining to the jury the distinction:
... between penetration of the vulva, as denoted by the labia majora, or outer lips, and penetration of the vagina itself.
This distinction was drawn as long ago as 1844, in a direction by Parke B which has been cited ever since in textbooks and judgments dealing with the physical requirements of rape. In the present case, the prosecution had called a medical practitioner who had given evidence about the anatomy of the female genitalia. That evidence ought to have been referred to.
The learned trial judge ought then to have informed the jury, in precise and simple terms, what would constitute penetration of the outer lips of the vagina, and to have summarised the evidence as it related to that issue. We have referred earlier to the different parts of the complainant's evidence on this topic. In the circumstances of the case, it was essential that the jury be reminded of each part of that evidence and of how it related to the issue of penetration.[6]
79 Although, in the present case, her Honour directed the jury adequately as to the extended definition of the term 'vagina', the only evidence to which she referred in her charge, and which had been led on the subject of actual penetration, was as follows:
The evidence is that after he was rubbing [KB] on the vagina; the subject of Count 1, his finger then went inside the vagina, thus making a separate offence of penetration.
80 Given that this was the only evidence led by the Crown in support of the element of penetration, her Honour was in no position to assist the jury to any extent with regard to this issue. In my opinion, the Crown's reliance upon the vague answers given by KB in the VATE tape, without elaboration, did not provide a satisfactory basis upon which the jury could have made a finding on this issue. KB was never asked to clarify precisely what she meant when she said that the applicant's finger had gone 'into' her vagina. She was not able to say for how long, or whether this involved a single slight penetration, or something more. Given the lack of clarity as to what exactly had taken place, the jury could not, in my view, be satisfied beyond reasonable doubt that actual penetration had occurred.
81 In addition, KB was, as I have said, of tender years, and could hardly be expected to appreciate the significance that the law attaches to the distinction between an indecent act, and an act of sexual penetration.
82 Of particular relevance to this ground are the answers KB gave when pressed, in cross-examination, as to the issue of penetration. As noted earlier, when it was suggested to her that she could not be sure whether there had been actual penetration, her initial response was that she did not understand the question. On one view, it appeared that she did not grasp the distinction between a touching 'in', or 'on', the vagina. Importantly, as I have noted, she then acknowledged that she could not remember clearly what had happened. Ultimately, she conceded that she could not be sure that penetration had taken place.
83 In light of that answer, and the evidence as a whole, I do not think that the element of penetration was established beyond reasonable doubt. Even allowing for the advantage that the jury had in having seen and heard KB give her evidence, it was not properly open, in my view, to find to the requisite degree that there had been actual penetration. No doubt KB was genuine in her belief that penetration had occurred. She told her mother, and the police, as much. However, if the complainant cannot say with certainty that there was penetration, it is difficult to see how the jury could be satisfied beyond reasonable doubt that this was so.
84 The many and widely differing accounts that KB gave to others, the inconsistencies between her evidence at committal, and her evidence at trial, and, as I have said, her answers to questions put to her in cross-examination, all combine to render the conviction on count 2 unsafe.
85 Moreover, even if KB's evidence as to the fact of penetration were to be accepted, there would still be a question as to whether one could safely conclude, on the facts of this case, that the applicant had intended to put his finger inside her vagina. One possibility would be that of inadvertent penetration, particularly in the case of a child who might be squirming to escape from an indecent assault.
86 In many instances, where penetration is established, there will be no issue as to whether the act was deliberate, and intentional. If the evidence is that the penetration took place over an extended period of time, there will ordinarily be no doubt whatsoever as to the mental state having been proved. Where, however, as in the present case, the complainant's account of what occurred is uncertain, and left as vague as it was, the possibility that any slight act of penetration was accidental, cannot easily be excluded. It must be remembered that the requisite intention for the offence of sexual penetration is an intent to penetrate. An intent to commit an indecent assault will not suffice.
87 The importance attaching to the element of intention in sexual penetration cases was set out in detail, by this Court, in AJS.[7] In that case, the applicant was convicted on one count of incest by digital penetration with his granddaughter. He claimed that he was rubbing the girl's stomach as she was suffering stomach cramps from food poisoning. He denied any penetration and said that any contact with the vaginal area, if it did occur, was accidental.
88 In relation to the element of intention, their Honours said:
To prove the crime of incest, the prosecution must establish that the act of penetration was a voluntary and intentional (or willed) act on the part of the accused. The element of intent may not often be in controversy in crimes involving sexual penetration but, when intent is in issue, it is of paramount importance that the jury be directed as to the obligation of the prosecution to establish intent beyond reasonable doubt.[8]
89 Unlike in AJS, her Honour did, in the present case, direct the jury as to the element of intention. Her charge, in that respect, is not the subject of challenge before this Court. However, AJS does highlight the importance that attaches to the mental element in a case such as this where, though the applicant denies any touching whatever, the evidence clearly gives rise to an issue as to whether, if it occurred, it was intentional.
90 For these reasons, I consider that it would be unsafe to allow the conviction on count 2 to stand. It follows that ground 1 should succeed. It also follows that the applicant is entitled to judgement and a verdict of acquittal on that count.
91 It is convenient to deal briefly with this ground next. Ground 8 is in the following terms:
It was not open to the jury to find that the complainant was under the "care, supervision or authority" of the applicant for the purposes of count 2 (Crimes Act, section 45 (2) (b)).
1"> 92 Having regard to my conclusions regarding grounds 1 and 2, and the fact that the conviction on count 2 must be quashed, it is unnecessary, strictly speaking, to deal with this ground. Nonetheless, I would briefly make the point that there was no evidence, so far as I can tell, and none identified by the Crown, to enable the jury to conclude that KB was under the 'care, supervision or authority'[9] of the applicant for the purpose of count 2.
93 In his closing address to the jury, counsel for the Crown summarised the evidence going to this issue as follows:
The circumstances of aggravation attached to that count, which is the subject of a separate deliberation by you, is that penetration occurred at a time when [KB] was under the care, supervision or authority of Greg Anderson. A person who is under the charge of another, if she is under the oversight with a view to protection, preservation or guidance of that other person, if that person has the power to influence his or her actions - it has been put to you by the defence that the accused was not living permanently at that house.
In my submission that is an irrelevant consideration in the circumstances. At the time of the offence it was him who was supervising the children. He was the father of all the children except [KB] in that house with the natural authority of a father, whether he was living there or not.
[KB] was in the house as [NA's] friend and guest with her mother's permission and as a child would be clearly under his supervision, under his referred supervision. His control of the television remote and his enforcing of his choice of movie clearly illustrates his control of that situation.
94 The applicant was not the householder when KB slept over. He lived elsewhere. It is true that he was at the house on the evening in question. So too was his wife, the mother of his children, from whom he was estranged. She came into, and out of, the lounge room on several occasions during the course of the evening. Although the judge sentenced the applicant on the footing that he was there to assist his wife, who had the custody of the children, in looking after them, there was no actual evidence in support of that finding. All that could be said was that he was an adult, in a room with young children, some of whom were his own, and that they were all watching television together. It goes without saying that the fact that he exercised control over the television remote, and choice of movie, is of no consequence whatever.
95 Had it been necessary to do so, I would have found that the evidence in this case fell short of establishing the requisite aggravating circumstance for count 2.
The learned trial judge erred in failing to discharge the jury (on application by defence counsel) following remarks by the prosecution counsel in his final address:-
(a) to the effect that defence counsel had failed to cross-examine the complainant as to the evidence of the witness [NA] that the complainant had told her "...she would...get some money out of... taking him [the applicant] to court" (304); and
(b) to the effect that there was no reason for the witness [LA] to lie.
[See discussion at 413 - 420; application for discharge at 421; Ruling at 422 - 423; further discussion at 424 - 428; directions at 428].
The learned trial judge erred in directing the jury in terms that suggested that defence counsel had an obligation to cross examine [NA] (charge 452.8) and the complainant (charge 459.18) on certain matters.
98 Ground 6 was abandoned as such, but the argument contained therein was relied upon in support of ground 3.
99 Ground 3 arises out of certain comments made by the prosecutor during the course of the trial.
100 As to (a), counsel for the Crown said in his closing address:
You may infer that [NA] was in fact trying to undermine the credibility of [KB]. You'll recall during her evidence-in-chief, out of the blue she suggested that [KB] told her, along with the allegation of what her father had done to her, that because her father sexually assaulted her, she would sue and get a lot of money. Now, the credibility of that assertion can be tested by was [KB] cross-examined about that? No she wasn't. When barristers cross-examine witnesses, we don't just dream up the most outrageous proposition we can and put it to the witness and say "Deny that, if you will." No, we bend to our instructions. If I'm cross-examining a participant in a brawl for instance, my client has told me that he came at him waving a piece of 4 by 2, and then he donged him in self-defence, when that witness comes in the witness box, I can't say to him, "And you had a revolver and a knife in your hand too, didn't you?", because my client hasn't told me that, so that would be out of my imagination. So when a witness is not cross-examined on something that they have put in evidence in another context - - -
You may be confident that [LA] has witnessed that incident. She is confused as to the location for the reasons that I suggested. She is giving her account a month after the event. She is a very immature child with a demonstrable attention deficit. You saw her wriggling and contorting herself all over the room. I don't think she sat still for one minute of the interview.
She has witnessed her father perform an act that would be shocking to anyone, let alone this immature child. The effect it had on her is demonstrable by the fact of her vivid clear account, consistent with what the other witness [KB] says. She hasn't liked what she saw but it has implanted itself on her memory. Because she is disoriented as to the location of the offence she should be believed in her account of what she saw. Could just a babyish child, immature child, concoct such a detailed and elaborate lie and for what purpose? It is not surprising she has made a mistake in the location. What is surprising is that a month after the event, with no need to recall it in the interim, she gives such a cogent and compelling account of what she actually saw.
102 These comments by the prosecutor led to an application, by counsel for the accused, to discharge the jury. Her Honour rejected that application, but said that she would deal with the matters raised in her charge to the jury. She did so in the following terms:
... and the evidence of [NA] that [KB] told her that she would get some money out of taking [NA's] father to court. Just on that last matter, that was not asked of [KB] by either barrister, that is, whether she had said that to [NA] or not, and so you do not know what her response would have been had she been asked. You cannot speculate about that. All you can say is that she was not asked about it.
Each one of those matters that I have just referred to could be seen as raising a motive for [KB] falsifying the allegations against the accused. Now, it is a matter for you as to what you make of all of that evidence, what you accept and what you reject, but what I want to draw your attention to at this stage is the suggestion arising out of those matters as to a reason for making false allegations, and I give you the following directions about that.
As I said to you in my directions at the beginning of the trial, the accused man does not have to prove anything, and that never changes. That includes not having to prove any motive or any reasons for [KB] making the allegations. Nor does the accused have to provide any reasons for [LA's] evidence. For example, the Prosecution commented how would [LA] know if she did not really see the event that she described? It is not for the accused to provide the reason why. The Prosecution brings the case and the Prosecution must prove its case. So you must not approach any of the evidence on the basis of asking why that evidence is given, but simply assess the weight of such evidence as you do accept in the light of the surrounding circumstances such as you find proved and decide on that evidence if the Prosecution has proved the charges or counts beyond reasonable doubt.
103 It was submitted before us that her Honour ought to have discharged the jury. Alternatively, it was submitted that the direction which she gave, aimed at curing the problem raised by the prosecutor's ill-advised comments, had failed to do so. The applicant referred to, and relied upon, R v Miller.[10]
104 In Miller, the applicant was found guilty on two counts of sexual penetration of a child under ten years, and one of committing an indecent act with a child under 16 years. In his address to the jury, the prosecutor raised the issue of whether the complainant had any motive to lie about the offences. Counsel for the accused made a discharge application, which the trial judge refused. His Honour then directed the jury in the following terms:
You will recall that in the course of his final address he made a number of remarks to you which involved variations on the rhetorical question, which was, 'Why would the boy make up the allegations against the accused?' His point was that there was no likely motive and thus it is more probable that the allegations are true. I tell you now, as I will tell you in more detail at a later stage in the course of my charge to you, that those are remarks that should not have been directed to you, and the reason is that they involve a degree of speculation. They invite you to speculate about matters that have not been addressed in the evidence. This is a criminal trial and, as I am sure you already understand, but which I shall develop in the course of the charge to you, I hope later today, there are particular rules that apply to a criminal trial. A jury is required to be satisfied beyond reasonable doubt. A jury is prohibited from speculating about what is or is not shown by the evidence. In effect the remarks directed to you by Mr Perry invited you to speculate about matters that had not been addressed in the evidence. It would be unfair and improper for you to so speculate, particularly because this is a criminal trial of this character. Therefore you should not take into account the remarks addressed to you by Mr Perry last evening. I will expand on that point to some extent in the course of the charge that I give you later today.[11]
105 The trial judge repeated his warning to the jury during his charge. He said:
I want to repeat and emphasise the warning I gave you in the course of Mr Perry's address. In that address Mr Perry made various comments all based upon the rhetorical question, 'Why would [the complainant] make up these allegations against the accused?' I tell you as a matter of law that he should not have done that and that the reason that he should not have made those comments to you was that the comment is, in the context of a criminal trial, illogical. It is illogical because it invites you to speculate about something of which you know nothing and which you can know nothing, which has not been referred to in the evidence. The topic was not referred to in the evidence at all. The question is, 'Are there motives?' Well the response is that we do not know. The topic has not been discussed in the course of the evidence and it would be mere speculation on your part to guess as to the existence or otherwise, or to assume that there was no motive for [the complainant] to make up some sort of story against the accused man. Accordingly, you must exclude that argument and not employ it. You must decide the case according to the evidence that has been adduced before you and you cannot speculate about it.[12]
106 Chernov JA, with whom Tadgell JA and Hedigan AJA agreed, held that the prejudice flowing from the prosecutor's comments was capable of being cured by an appropriate warning. His Honour said:
In my view, having regard to the circumstances applicable to this case, which include those to which I will refer below, the prejudice flowing from the prosecutor's comments was capable of being cured by an appropriate warning. First, the jury had been directed by his Honour in clear terms on a number of occasions from the outset of the trial that their verdicts had to be based only on the evidence. The jury would readily understand, if so directed by his Honour, that the prosecutor's comments were just that and should be disregarded. Next, the trial was of short duration, so that it was likely that the jury would have no difficulty in retaining in their minds any direction given by his Honour. Furthermore, the warning was given immediately after the application for discharge was completed and in the midst of the prosecutor's final address. The rebuke that would be contained in such a warning would obviously be of forensic disadvantage to the prosecution. Moreover, whether to discharge the jury in the circumstances of this case called for the exercise of judgment which his Honour was best equipped to make.[13]
107 Miller makes clear that an impermissible comment by the prosecutor in his closing address can be cured by an appropriate direction. In the present case, her Honour's direction to the jury was sufficient, in my view, to remedy any difficulty that may have resulted from the two comments made by the prosecutor in his closing address. No exception was taken to her Honour's direction regarding these matters, and no further direction was sought. There was no high degree of necessity to discharge the jury.
109 These grounds both relate to complaint, and are in the following terms:
Ground 4: The learned trial judge erred in admitting, as evidence said to be capable of amounting to evidence of complaint, the evidence of [MB] (328, 332-333).
Ground 5: The learned trial judge erred in her directions to the jury on complaint evidence (charge 454 - 457).
110 During the course of argument, counsel for the applicant sought leave to amend this ground to reflect a challenge not based on the trial judge's directions, but rather on the admission of the evidence of complaint itself. We did not rule upon that application at that stage, but permitted counsel to develop his argument. We indicated that we would decide later whether to grant the leave sought.
111 As regards ground 4, KB's statement to MB was plainly a complaint about having been sexually assaulted. When KB told her brother that the applicant had tried to 'touch' her, it was perfectly obvious, in context, that the incident she described was of a sexual nature. The fact that that neither the term 'sexual', nor the term 'assault', was used was of no consequence.
112 In any event, no objection was taken to this evidence. I see no reason to think that its admission gave rise to a miscarriage of justice.
113 Ground 5, as sought to be amended, is utterly devoid of merit. The transcript reveals that counsel for the applicant made a considered decision to allow this evidence to be led. He did so on the basis that it was to the applicant's advantage to have KB's various complaints before the jury, so that the differences between the evidence she gave at trial, and what she had earlier told others, could be brought out, and highlighted.
114 Having deliberately made that choice, I can see no reason why the applicant should now be permitted to argue that the evidence in question ought not to have been admitted. I would refuse leave to amend ground 5.
115 It follows that both grounds 4 and 5 are rejected.
The learned trial judge erred by failing to give adequate directions to the jury on the standard of proof (preliminary directions at 163; charge at 436).
117 Her Honour directed the jury that the Crown bore the onus of proof, and that the standard of proof required was proof 'beyond reasonable doubt'. She did not tell the jury that this was the 'highest' standard of proof known to the law, and did not contrast the criminal standard with the lesser standard required in civil cases. The applicant also submitted that her Honour's direction on the standard of proof should have been tied to a direction on the presumption of innocence. Her failure to direct in these terms formed the basis of this ground.
118 No exception was taken to her Honour's direction regarding the standard of proof.
119 A ground in similar terms was recently considered, and rejected, by this Court in R v Carter.[14] I said in that case:
Put simply, the applicant contends that the failure of the trial judge to instruct the jury in accordance with the standard direction set out in the Charge Book gave rise to a miscarriage of justice. The submission comes down to this. The jury may have concluded from his Honour's use of the term 'high' that the standard of proof required in a criminal trial is something less than the highest standard of proof known to the law. In addition, the failure to contrast the 'high' standard required in a criminal matter with the lesser standard required in a civil case adds to the risk that they might have done so.
The argument faces several hurdles. In the first place, no authority was cited in support of the contention that, when speaking of the standard of proof, the term 'highest' had to be used, immediately followed after the words 'standard of proof', by the expression 'known to the law', failing which the trial will have miscarried. Next, no exception was taken to his Honour's
charge. Finally, his Honour had, earlier in the proceeding, instructed the jury that there was a presumption of innocence, and that the applicant was entitled to the benefit of that presumption unless and until the prosecution satisfied them, beyond reasonable doubt, of the guilt of the accused.
That is not to say that it is good practice or desirable to depart from the time-honoured formula used repeatedly by judges in this State, and elsewhere, and recorded in the Charge Book. It is only to say that a departure from that practice does not of itself signify a miscarriage of justice.
The fact that the jury acquitted the applicant on four of the seven counts on which he was presented suggests that they understood that the prosecution bore a heavy onus of proof. Moreover, the judge's direction to the jury that the words 'beyond reasonable doubt' meant what they said, and required no further definition, left the elucidation of that expression to the jury, in accordance with orthodox principle.[15]
120 For the reasons set out in Carter, the same result should follow in this case.
121 The applicant, having succeeded in having the conviction on count 2 quashed, is left with the conviction on count 1. In relation to that count, he received a sentence of two years' imprisonment. That sentence was not challenged. It should stand.
122 It is, however, necessary to fix a new non-parole period. I would fix a non-parole period of 15 months.
124 I also agree with Weinberg JA and have nothing to add.
[1] [1994] HCA 63; (1994) 181 CLR 487 ('M v The Queen').
[3] Holland v R (1993) 117 ALR 193. See also R v DD [2007] VSCA 317; and R v Nous [2010] VSCA 42. In R v Attorney-General (1997) 129 ACTR 1, Higgins J observed that, from an anatomical perspective, the 'vagina' is defined as the passage between the cervix and the hymen. The area from the external genitalia to the hymen is called the 'introitus'. Pursuant to s 35 of the Crimes Act 1958, the entire female genital area now falls within the extended definition of 'vagina'.
[4] R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577.
[5] [2005] VSCA 288; (2005) 12 VR 563 ('AJS').
[7] See also MG v R [2010] VSCA 97.
[9] See generally R v Howes [2000] VSCA 159; and R v Macfie [2000] VSCA 173, [17]-[22].
[10] [2000] VSCA 67; (2000) 112 A Crim R 323 ('Miller'). He also referred to R v Buckley [2004] VSCA 185; (2004) 10 VR 215; and R v Rich (1998) 102 A Crim R 165.
[14] [2009] VSCA 272 ('Carter').
[15] Ibid, [7] - [10]. See also R v JMA [2007] VSCA 105, [22] where this Court held that the trial judge's failure to compare the criminal standard with the civil standard did not of itself impeach the verdicts.
Anderson
The Queen [2010] VSCA 108
(1994) 181 CLR 487
(1993) 117 ALR 193
(2005) 12 VR 563
(2004) 10 VR 215