Ashley v The Queen [2016] VSCA 245

1 At the County Court in February 2016, the applicant (now aged 68) pleaded not guilty to two charges that, at East Keilor between 1 January 2002 and 21 August 2002, he wilfully committed an indecent act with a child aged 16 under his care, supervision or authority contrary to s 49(1) of the Crimes Act 1958 ('the Act'). The complainant was born on 22 August 1985 and thus turned 17 on 22 August 2002.

2 On 24 February 2016, following an eight day trial, the applicant was convicted of one charge (charge 1) and found not guilty of the second charge (charge 2). On 15 March 2016,[1] he was sentenced to 12 months' imprisonment on charge 1.

3 At the time of sentencing, the applicant was serving a term of imprisonment of 9 years with a non-parole period of 6 years. That term of imprisonment was imposed following the applicant's conviction on nine charges of sexual penetration of a child under the age of 16 years contrary to s 45(1) of the Act.[2] On those charges the complainant was the younger sister of the complainant in the instant case. The judge in the instant case ordered that 4 months of the sentence on charge 1 be added to the total effective sentence and non-parole period the applicant was already serving, such that the total effective sentence became 9 years and 4 months' imprisonment with a non-parole period of 6 years and 4 months.

4 The applicant seeks leave to appeal against the conviction on charge 1. Initially leave was sought on the ground that the conviction was inconsistent with acquittal on charge 2. At the hearing of the application, the applicant sought leave to add a further ground, that the conviction should be set aside as unsafe and unsatisfactory. That required further submissions for which we gave leave. In the written submission provided by the applicant's counsel,[3] a further ground again was raised, that the conviction was invalid because the offence stated in the indictment was not known to the law.

5 For some time prior to, and at the time of the offending, the applicant was in a relationship with the complainant's mother. He spent time living at her house, latterly in East Keilor. At all times the complainant lived with her mother and her sister. The applicant looked after the complainant and her sister, particularly when their mother worked nightshift. The applicant was married with a family, with whom he also spent time.

6 The applicant was said to have adopted 'spiritual personas' from time to time, in the form of different personalities that he would take on when speaking to the family members. The complainant described those personas as 'Tahai', 'Trinity', 'Emerald' and 'Snowdrop'.

7 The complainant deposed that the incident the subject of charge 1 occurred when she was 16 years of age at their home in East Keilor. The complainant's evidence in relation to the incident was that the applicant was lying down on the bed he shared with the complainant's mother. He called the complainant into the bedroom and asked her to lie on the bed with him. He said he was feeling unwell. It was night time and her mother was not at home. The complainant could not remember if her sister was at home, but she was not in the bedroom. The applicant told the complainant that she was special and had positive healing abilities. The applicant was in one of his personas at the time, either 'Trinity' or 'Tahai'. The complainant said she lay on the bed under the blankets; the applicant placed her hand on his chest, he was breathing deeply and slowly, as he often did when a persona was present, and after some time he placed his fingers on her vagina outside of her pants. She could not say how long this occurred for. She was shocked, pushed his hand away, and got out of the bed and left.

8 The complainant deposed that the incident the subject of charge 2 occurred when she was 16 years of age. At the time, she had broken up with a boy called 'Christian' and was quite sad. The complainant said that one night the applicant called her to come into the bedroom he shared with her mother, and told her that there was a way he could help the complainant get back together with her boyfriend. He said 'Lie down' and she did, in the bed. The complainant could not remember if she lay under the blankets. The applicant told the complainant to close her eyes, take a deep breath and think about Christian. Then the applicant spoke through one of his male personas and said that the complainant's boyfriend was dreaming about her now so she should think about him and breathe deeply. The applicant put her hand on his chest, then put his leg over her leg. She started to feel uncomfortable. The applicant kept telling her to think about Christian and, in his persona, said she was in Christian's dreams now. The complainant said she was 'going along with it 'cause I guess I was sad and I wanted - yeah'. Then, after some time, he placed his fingers on her vagina over her clothing. His hand stayed on her vagina for a period of time that she could not specify except that it was longer than the first time. As with the previous incident, the complainant pushed the applicant's hand away, got out of the bed and left. She thought her sister may have been in the house - asleep - at this time, but did not see her.

9 In 2002 the complainant, in answer to a question from her mother, said that the applicant had not done anything inappropriate to her. In March or April 2003 the complainant, who was then aged 17, told her mother that the applicant had tried to touch her.

10 The complainant made a statement to the police in 2013.

11 On 19 November 2013, the applicant gave a record of interview in which he denied the offences. He also denied that he adopted 'spiritual personas'. The defence case was run on that basis.

12 As mentioned, the applicant's initial ground contended that the acquittal on the second charge was inconsistent with conviction on the first charge. The submission concentrated on the similarity in the evidence on both charges and that the incidents had occurred in a short period of 13 days. Counsel submitted that there was no basis on which to distinguish the allegations; the evidence was virtually identical in terms of its central features and the temporal and geographical environment.

13 However, as the oral argument was developed at the hearing it became apparent that there was a rational basis upon which the verdicts could be explained.[4] The first, and most immediately apparent basis, was that of the 'timeline' of events upon which defence counsel placed central importance. This timeline is referred to below. Upon this timeline the jury could well have had a doubt as to whether the second incident occurred within the charged period, the last day of which was 21 August 2002. At the same time, the jury could have accepted the complainant's evidence and concluded that the first incident occurred within the 'timeline' of events. Then, there is the further possibility that, while the complainant repeatedly deposed that she was aged 16 at the time of each incident, nevertheless at one point in cross-examination (referred to below) her evidence could have raised a reasonable doubt in the minds of the jury that she was aged 16 at the time of the second incident.

14 This being so, two things became apparent. First, that the contention of inconsistent verdicts must fail. Secondly, that the applicant's contention would be better approached on a more broadly expressed unsafe and unsatisfactory ground. Hence, the grant of leave to provide submissions in relation to that ground.

15 In his submissions provided pursuant to that leave, the applicant seeks to rely on the following two grounds:

1 The conviction on charge 1 is unsafe and unsatisfactory.

1. The conviction on the trial indictment was invalid because the indictment recorded a statement of offence not known to the law.

16 The second ground concerning the validity of the indictment was not mentioned at the trial or at the hearing in this Court. It appears to have now arisen as a result of advice from the respondent's counsel, provided following the hearing, that - as mentioned below - at the time of the alleged offending the offence under s 49(1) was confined to a 16 year old child, yet the statement of offence on the indictment said 'with a 16 or 17 years old child'. Counsel said that this was a threshold question; on that basis it is convenient to consider it first.

17 Counsel for the applicant submits that the 'statement of offence' in the indictment did not conform with the requirements of s 159(3)(c) and Schedule 1 of the Criminal Procedure Act 2009 ('the CPA'). Accordingly, it was submitted, the indictment was invalid, and the conviction should be set aside.

18 In 2002, when the offending was alleged to have occurred, s 49(1) of the Act provided:

49 Indecent act with 16 year old child

(1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 year old child to whom he or she is not married and who is under his or her care, supervision or authority.

...

(2) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the accused believed on reasonable grounds -

(a) that the child was aged 17 or older; or

...

Accordingly, it was a condition for the operation of the section that the child be aged 16 years.

19 Section 49(1) was amended by the Crimes (Sexual Offences) Act 2006 so that the reference to 'a 16 year old child' became 'a 16 or 17 year old child'. The section is now headed 'Indecent act with 16 or 17 year old child', and in ss (1) the expression is now 'a 16 or 17 year old child', and in ss (2)(a) the age of '18' has been substituted for '17'.

PARTICULARS

AND STATEMENT OF OFFENCE

CHARGE 1 The Director of Public Prosecutions charges that JOHN ASHLEY at East Keilor in Victoria between the 1st day of January 2002 and the 21st day of August 2002 wilfully committed an indecent act with or in the presence of [the complainant] a 16 year old child to whom he was not married and who was under his care, supervision or authority.

Statement of Offence - Indecent act with a 16 or 17 year old child contrary to s 49(1) of the Crimes Act 1958.[5]

It is unnecessary to set out charge 2; it is in relevantly identical terms to charge 1.

21 Section 159(3)(c) of the CPA requires that an indictment comply with Schedule 1, which provides:

1 Statement of offence

A charge must -

(a) state the offence that the accused is alleged to have committed; and

(b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.

2 Statement of particulars

(1) ... particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.

...

3 Statutory offence

(1) In this clause -

statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.

(2) For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it -

(a) identifies the provision creating the offence; and

(b) describes the offence in the words of the provision creating it, or in similar words.

...

22 Counsel submitted that the indictment did not comply with the requirements of Schedule 1 in that the offence alleged to have been committed was not stated (cl 1(a)), and the statement of offence did not describe the offence in the words of the statute which created it (cl 3(2)(b)) or in similar words (cl 3(2)(b)). The error was to refer to the offence as it was under the amended s 49(1), rather than the section as in force at the time of the alleged offending. More precisely, the error was the inclusion of the words 'or 17'. This, counsel submitted, was sufficient to render the indictment invalid.

23 However, s 166(1) of the CPA provides that an indictment 'is not invalid by reason only of a failure to comply with Schedule 1'.

24 Counsel for the applicant submitted that s 166(1) could not be invoked to save the indictment. He first identified the following circumstances as relevant in this consideration: that the indictment was signed by a Crown Prosecutor, in which the statement of offence was indecent act with a 16 or 17 year old child. That was not known to the law at the relevant time;[6] and the applicant was arraigned on that indictment.

25 From this base counsel stated that the statement of offence 'clearly misled' defence counsel and the trial judge. It appeared, so counsel stated, that the trial proceeded on the misapprehension that the allegation in the particulars of charge that the complainant was 16 (and the direction to the jury that that was an element of the offence) was because of an election by the prosecution, for some reason, not to allege the age of 17. It was said that defence counsel 'was actively misled by the statement of offence', it being 'clear' that he ran the trial on the basis that the applicant could be convicted even if the incidents occurred when she was aged 17. He thus did not make a no-case submission on charge 2, which submission would have succeeded, and did not cross-examine the complainant to the effect that she could not be certain that the charge 1 incident happened before she turned 17. Counsel did concede that in the light of the particulars in the charges, the directions to the jury correctly reflected the elements of the offence as it then was. Nevertheless, the indictment was 'fundamentally flawed' and 'misled practically everyone involved in the case (except perhaps the jury), and particularly his trial counsel'.

26 The first thing to note about the 'statement of offence' in the indictment is that, apart from the addition of the word 'a', it simply repeats the heading to s 49. Further, the particulars of charge that precede it, make it clear that the charge is confined to a 16 year old child. Even if the charge was drawn in the belief that the present s 49 was applicable, it was open to the Crown to elect to confine the charge to a child aged 16. That was, of course, exactly the case sought to be made.

27 As mentioned, each charge alleged that the offence occurred at East Keilor between 1 January 2002 and 21 August 2002 when the complainant was aged 16 years. The latter date is important because, as we have said, the complainant turned 17 on 22 August 2002. It followed from the way the charges were particularised that the prosecution had to establish that the complainant was 16 years of age at the time of the alleged offending. The complainant a number of times, indeed repeatedly, deposed that she was aged 16 at the time of each incident.

28 Putting aside for the moment the matter of the complainant's age, defence counsel centrally pursued the matters of the location at East Keilor and the time when the alleged offending occurred. The evidence disclosed that the complainant's family moved from Moonee Ponds to East Keilor shortly after 9 August 2002 on which date the complainant's mother settled her purchase of the East Keilor property.

29 The complainant's mother was cross-examined with a view to establishing the date on which they actually moved into possession of the East Keilor property. She deposed that settlement occurred on Friday 9 August, a truck (for removal) was rented on Sunday (11th August), but she could not recall on what day they moved in. It could have been the 10th, 11th or 12th. The family was 'probably not settled ... till mid to late week'.

30 This established the period of time in which the offending could have occurred at East Keilor.

31 In the course of a cross-examination directed to the time when the alleged offending occurred, in particular as to the time between each incident, and as to which the complainant variously referred to months and weeks (and going back earlier than the move to East Keilor) and expressed uncertainty, the complainant agreed with defence counsel's question that both incidents occurred at East Keilor when she was 16. Defence counsel pressed the complainant about the period of 13 days from settlement of the purchase of East Keilor to her 17th birthday, which counsel referred to as the 'timeline'. The following evidence was given:

[COUNSEL:] Your evidence in this trial, and just so it's fair to you, in answers to questions from the prosecutor was that both these incidents happened when you were 16. That's right?---Yes. Yes. Well, in that year that I was 16. Yes.

Well, they both happened when you were living in the new premises at East Keilor?---Yes. I can picture that, so, that's what - yeah, I know that.

So, it occurred and we narrowed it down to these 13 days?---That seems to be the case, yes.

And the timeline, does the timeline work because you said there were months between the incidents.

[The prosecutor objected]

[COUNSEL:] So, let's work out on this timeline then, assuming the settlement date is 9 August. We've got 13 days, right? Between you turning 17. Because you're very clear this occurred when you were 16 and at East Keilor. Is that so?---I was clear in that it happened at East Keilor and we said 16 because I didn't have this diary to have a timeline created for me. But I know that I started dating Dane in around the end of August. Or went on a date with Dane. And then I broke up with Christian around June. So, these are the only times that I really know. And so 16, yeah. I mean there's a slim chance it could have happened after my birthday and then I went on a date with Dane but - - -

But what - - -?---You see it's more likely that it happened when I was 16.

32 Defence counsel followed with further questions about the 'timeline' including questions about the second incident. But he did not pursue the reference in the passage just quoted to a 'slim chance it could have happened after my birthday'. Defence counsel did not put to the complainant that she was not aged 16 or, to put it another way, that she was aged 17 at the time of the second incident or both of the alleged incidents.

33 Following the completion of the prosecution case, defence counsel announced that he would not call any evidence. In the discussion that followed, the judge asked counsel what was in issue on the elements of the offence. Defence counsel stated that it was disputed that the incidents occurred, and that 'the other issue from the defence is the timing issue of when it occurred.' Counsel indicated that he would not suggest that the complainant was not under the care, supervision or authority of the applicant. That brought the discussion to the element of the complainant's age, the judge immediately saying that it was that she was 16 when the act took place, and observed that that the Crown had to prove that beyond reasonable doubt. The following exchange then occurred:

[COUNSEL]: Yes but I - it's - the evidence is clear that at the relevant time, well it depends when she says it happens I suppose, the Crown case is 16 - on the indictment it says 16 or 17.

[PROSECUTOR]: No 16.

[COUNSEL]: 16.

HER HONOUR: No she has to be 16.

[PROSECUTOR]: Yes.

[COUNSEL]: Yes at least.

HER HONOUR: It's the offence is 16.

[COUNSEL]: Yes. I can't imagine that being in dispute.

[PROSECUTOR]: Can't imagine that being in dispute?

[COUNSEL]: Well it's not, no.

[PROSECUTOR]: No I'm just - - -

HER HONOUR: No it's not in dispute she was 16.

[COUNSEL]: No.

HER HONOUR: All right.

[COUNSEL]: It's the, it's the timeline which is the second one.

[PROSECUTOR]: Your Honour can I interrupt, 'cause it's just - - -

HER HONOUR: Well that means that it is in dispute.

[PROSECUTOR]: Well as I understand it, my friend will correct me if I'm wrong. He's saying the timeline goes to her reliability but 16 - the fact that she was 16 is not in dispute, that's as I've understood it, if I haven't misunderstood it.

HER HONOUR: Well wait a moment that's a bit - - -

[PROSECUTOR]: In other words, it seems that the defence will be arguing and I don't want to speak for my friend, out of turn - - -

HER HONOUR: No.

[PROSECUTOR]: - - - he'll tell me if I'm wrong and tell Your Honour, that the defence position seems to be, there's no argument that she was 16, but because she's all over the place they'll say, as to how long the time gap was and East Keilor it goes to her reliability.

HER HONOUR: I see.

[PROSECUTOR]: And indeed Your Honour will remember the last puttage in the cross-examination of [the complainant] was because of all these discrepancies, you're mistaken about it happening, something like that.

[COUNSEL]: Yes.

[PROSECUTOR]: Yes.

HER HONOUR: Well it's more than that. Because the issue was credit, it's not reliability, isn't it, - - -

[PROSECUTOR]: Well I meant, I meant - - -

HER HONOUR: - - - isn't it, she's made up a story and now it's come to bite her because it's 13 days, yes.

[PROSECUTOR]: But it was put that she was mistaken because of all this confusion - - -

HER HONOUR: When she - yes.

[PROSECUTOR]: - - - over times and gaps, windows.

HER HONOUR: Yes I see.

[PROSECUTOR]: So I use the word reliability but - - -

HER HONOUR: No I know what you mean.

[PROSECUTOR]: I thought they were saying reliability rather than honesty but I don't know they may say something - - -

HER HONOUR: No well am I right in saying [defence counsel] is that she was mistaken when she made her statement. She's mucked it - you're putting to her it's all a tissue of lies and - - -

[PROSECUTOR]: A tissue of lies is it?

HER HONOUR: Well I think that's a - I think that saying has been - - -

[PROSECUTOR]: No, no, no I'm not worried about the saying. My friend put it to her that she's mistaken, that's what he put in cross-examination.

HER HONOUR: Well the whole point is it didn't happen.

[PROSECUTOR]: But the inter - interview was a conspiracy.

HER HONOUR: Yes, yes. Well, I think the way the defence case has been run is that it's a lie. It didn't happen.

[PROSECUTOR]: Yes.

HER HONOUR: ... So it's got to be she's lying and when she made her statement to the police she was a bit confused or mixed up about time lines and that goes to her credit. So that's not in dispute. So what's in dispute is that he committed the act. He did it deliberately. That's it.

[COUNSEL]: Yes, Your Honour.

34 In his address to the jury the prosecutor said that there had been 'plenty of time' to commit the offences, and that the complainant had maintained that they happened before her 17th birthday, that is, when she was 16. The prosecutor stated that he believed that that aspect was not disputed, but the prosecution still had to prove she was 16.

35 In his address to the jury, defence counsel submitted that the jury should acquit the applicant on the basis that the timeline did not 'fit'; he also invited rejection of the persona evidence, and relied on the applicant's record of interview. In concluding, he described the 13 day period at East Keilor as a 'fundamental flaw' in the case, and added

... I suppose the challenge for you is, how do you get around that? How do you get around that time line? How do you get around that record of interview? How can you be confident and sure, make a decision beyond reasonable doubt when you have those two obstacles in your way?

36 Defence counsel did not specifically address on the question whether the complainant was aged 16 or 17 at the time of the offending.

37 The judge gave the jury a standard direction to give separate consideration to each charge. She commenced discussion of the elements thus:

Now the elements. I am going to take you to some of the evidence. Now by way of background the law says the age of consent for sexual offences is normally 16. Now for persons aged 16 or 17 the law created this particular offence to protect young people from exploitation by people in positions of care supervision and authority.

Now the offence you are deciding is indecent act with a child aged 16 under the care, supervision, and authority of the accused. That is what the offence is. The prosecution must prove each of these elements beyond reasonable doubt; (1), and I might say I am not going to repeat this twice. But it is the same elements in relation to the offence charged in Charge 1 and Charge 2. So the elements are the same for Charge 1 and Charge 2.

The elements, which you must be satisfied of each one beyond reasonable doubt; (1), the accused committed the alleged act, and I will go to it in a moment but ... it is touching her vagina over her clothing on each occasion in dispute; (2), the accused wilfully committed the alleged indecent act; (3), the act occurred in indecent circumstances.

I am going to read these again too; (4), at the time the alleged act took place the complainant was under the care, supervision, or authority of the accused man; (5), the complainant was 16 years of age when the act took place; and (6), the accused was not married to the complainant at the time of the alleged act.

38 The judge then went through each element. As to the element that the complainant was aged 16 when the act took place, her Honour said:

... there is evidence about that and that is a matter for you on the evidence. Again she has given evidence as to her age so that is a matter for you.

39 It is to be noted that her Honour did not tell the jury that the defence conceded that the complainant was aged 16 at the time of the incidents, or anything to that effect. It was left, consistently with the prosecution address, as an issue on which the jury had to be satisfied beyond reasonable doubt.

40 Further, in summarising the issues raised by the defence, the judge did not put an issue as to the complainant's age; that was consistent with defence counsel's address. Rather, the judge put what counsel had addressed on, essentially being 'the timespan of when this offence could have taken place', in conjunction with the applicant's denials in his record of interview.

41 Defence counsel took no exception to the charge which he described as 'impeccable'.

42 After retiring to consider its verdict, the jury requested and had replayed to it the complainant's evidence as to both incidents. The jury had also been provided with the transcript.

43 It has been necessary to set out the course of events at the trial in order to provide the context in which to determine the validity of the indictment.

44 It is, of course, correct that the 'statement of offence' was incorrect because it included the expression 'or 17'. Regarding that alone, and in the context of the particulars which clearly informed a reasonable person that the charge to be met was that the complainant was aged 16 at the relevant time, it is unlikely that the words 'or 17' could have produced such a misapprehension of the charges as is now contended.

45 A central difficulty with the applicant's submission is that it rests on assumptions or assertions as to defence counsel having been misled, and as to the basis on which the trial was conducted, as to which there is no evidence other than what appears on the transcript. In particular, the submission is not supported by any affidavit of defence counsel. Further, the applicant's written case for the appeal was signed by defence counsel at the trial, and contained no suggestion of the defence having been misled by the statement of offence, or of the now proposed ground that the indictment was invalid.

46 In these circumstances, the applicant's submission rests on conjecture.

47 It is not known what enquiry as to the relevant law defence counsel undertook. It is not known why he determined not to put to the complainant that she was not 16 or why, notwithstanding her evidence that there was a slim chance the second incident could have happened after her 17th birthday, he did not pursue that opening and seek thereby to establish that she was 17 at the time of both incidents, or only the second incident. He refrained from doing so, and even following the discussion after completion of the evidence, did not put the possibility to the jury. In truth, it is inescapable that defence counsel ran the case as he considered best. And his judgment was proved correct, at least in relation to charge 2.

48 Returning to the discussion which occurred following the completion of evidence, defence counsel first states: 'the Crown case is 16 - on the indictment it says 16 or 17'. As to the latter - which is a reference to the statement of offence - he is immediately corrected by the prosecutor and the judge that the charge is 16. It is clear from this that defence counsel was aware that the Crown case - being that particularised - was that the complainant was 16. That is what the Crown had to prove. It is also clear that defence counsel closely attended to the terms of the particularised charge in conducting the case. That is seen in the concentration upon the East Keilor location and the 'timeline'. It cannot be supposed that defence counsel was not also aware of the element of the age of 16. Not only did he acknowledge it, but it was repeated frequently in the evidence.

49 It was said in the applicant's further written submissions that defence counsel's concession that it was 'not in dispute she was 16' was directed to the fact that the complainant was aged 16 between the dates charged. As a fact, that was correct, and reflected attention to the terms of the charge. It also serves to undermine the suggestion of being misled. But two points remain to be said. First, counsel could have further assisted the judge by clarifying what was in issue on the matter of age. Secondly, defence counsel did not put to the complainant or the jury that she was not 16 at the relevant times.

50 Moreover, defence counsel being aware of the reference to 'or 17' in the statement of offence and of its absence in the particularised charge, it is difficult to see as to what he could have been misled. If - because he had not researched the history of s 49 to see what the offence was at the time of the alleged offending - he thought that in 2002 at the time of the alleged offending, it included the reference to 'or 17', how and to what effect was he misled or disadvantaged by the fact that the Crown had opted to proceed on the basis that the complainant was aged 16, not 16 or 17? It was suggested - without evidentiary support - that defence counsel was misled into running the trial on the basis that the applicant could be convicted even if the incidents occurred when the complainant was aged 17. With respect, the trial was conducted by the prosecutor on the basis, and the jury were directed accordingly by the judge, that the jury had to be satisfied beyond reasonable doubt that the complainant was aged 16 at the time of the charged conduct. That was the context in which defence counsel went to the jury. Furthermore, it is not 'clear' that defence counsel did so, suffering from a misapprehension that the applicant could be convicted even if she was aged 17.

51 It finally remains to reject the submission that the prosecutor and the judge were misled by the statement of offence. As to the judge, it is clear that she was aware that the charge to be proved was that the complainant was aged 16. It is true that in charging the jury she commenced her discussion as to the element of age by referring to the law as to indecent act with a 16 or 17 year old child. But, clearly, that was a general prefatory introduction to the subject and her Honour immediately went straight to the charge in the case and to the fact that the element to be proved was that the complainant was aged 16 at the relevant times. The jury could have been under no misapprehension as to what the prosecution had to prove.

52 The inclusion of the expression 'or 17' in the statement of offence was unfortunate but regarding the matter overall, it was not such as to cause the trial to miscarry.

53 Counsel for the applicant submitted that the jury must have had a reasonable doubt that the complainant was aged 16 when the alleged offending occurred. As already indicated, the ultimate concentration in the defence case put to the jury was that to succeed the prosecution had to establish that the offending must have occurred in the 13 day period at the home at East Keilor. If the offending occurred prior to 22 August 2002, then the complainant was aged 16, as she repeatedly said she was. But her credit, and the reliability of her evidence, was attacked on the basis that her evidence as to the time when the incidents occurred was confused and varied and not believable, so that the jury should have a reasonable doubt as to both. As mentioned, however, defence counsel did not put to the complainant or the jury that she was not aged 16 at the time. In particular, as mentioned earlier, defence counsel did not pursue the complainant on her evidence that there was a 'slim chance' that the offending occurred after her birthday. While it is to be noted that the complainant said it was more likely it happened when she was 16, defence counsel did not press her with questions designed to establish ground for acquittal on the basis that the offending conduct occurred after her birthday.

54 In this Court, however, the applicant's counsel placed particular reliance on this evidence, and the other passage quoted above, to submit that the jury was bound to acquit on both counts. It was said that the complainant's evidence that she was 16 became vague and uncertain with an ultimate concession that she might have been 17.

55 As mentioned, this is not how the case was put at trial. Nevertheless, the fact was that the jury was required to be satisfied that the complainant was aged 16 at the time of the alleged offending. Hence, the applicant is able to present the matter as he now does.

56 To succeed on this ground, the applicant must establish that the jury was bound to acquit the applicant. In Libke v The Queen[7] Hayne J, Gleeson CJ and Heydon J concurring, said:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[8]

57 In undertaking this consideration it is to be borne in mind that the jury has had the benefit of seeing and hearing the witnesses give their evidence. And it is to the jury that the responsibility of determining the facts, and finding guilt or innocence, is entrusted by law. As was said in R v Nguyen,[9] and is often stated, 'the court must pay full regard to those considerations'.

58 Counsel for the respondent undertook an analysis of the evidence and submitted that there was nothing in the evidence that obliged the jury to acquit the applicant of charge 1. Rather, it was, he submitted, open to the jury to be satisfied beyond reasonable doubt that the first incident occurred before the complainant turned 17.

59 The respondent's analysis of the evidence commenced with the account the complainant gave of the incidents, the second of which was submitted to be different because the complainant's break up with Christian was relevant to the conduct of the applicant. This was the reference to her breaking up with the boy called Christian. In evidence the complainant stated that she knew the time of the second incident more because of the break up, and knowing when that occurred and that she was then 16. As mentioned earlier in these reasons, as to the time between the occurrence of the two incidents, the complainant's evidence referred variously to weeks, and months, not days, at one point estimating a couple of months.

60 Then, as mentioned, defence counsel cross-examined seeking to establish the 13 day window of opportunity for the offending at East Keilor. This of course was inconsistent with the complainant's evidence as to the possibility of months between the incidents, which in combination with the particular evidence of the complainant founded the case put by the defence to the jury.

61 Nevertheless the respondent's counsel pointed to the complainant's repeated evidence that she was 16 at the time of the first incident. She also gave evidence that both incidents occurred when she was 16 and that she had not had the advantage of the diary which defence counsel had in cross-examining her and which he used to create the timeline referred to earlier. As to this, the complainant said that she broke up with Christian around June 2002 and remained sad up to two months after that had occurred. Counsel said that that would be 2 August 2002. The complainant said she started seeing Dane around the end of August, stating they had a date in mid to late August but did not properly start going out until November. She accepted that it was three months after she broke up with Christian that she started seeing Dane, which would be September.

62 Counsel then referred to the complainant's evidence as to there being a slim chance 'it' could have happened after her birthday and that she then went on a date with Dane. But she then said it was more likely that it happened when she was 16. The complainant stated that she was not going out with Christian when the second incident occurred.

63 The respondent submitted that in the light of the evidence it was open for the jury to conclude:

1. There were two incidents in the year that the complainant turned 17, and both occurred at East Keilor (after 9 August 2002).
2. The complainant was 16 at the time of the first incident, but there could have been a period of about two months between the incidents.
3. The second incident happened when the complainant was sad from breaking up with Christian, in around August 2002, and while she was confident that the second incident happened before she went out with Dane (mid to late August 2002), there was a 'slim chance' that it occurred after she had turned 17 on 22 August 2002. That is, that the reference to 'it ' was a reference to the second incident.

64 The respondent submitted that in these circumstances it was open to the jury to be satisfied beyond reasonable doubt that the first incident happened when the complainant was 16, but, given her concession under cross-examination about the timing of the second incident, there was a reasonable doubt as to whether she was 16 at the time of the second incident.

65 With respect, this submission is surely correct. It cannot be said on the evidence that the jury must have had a reasonable doubt as to the occurrence of the first incident at a time when the complainant was aged 16. The jury paid close attention to the evidence upon retirement to consider their verdict. They asked to have the complainant's evidence on both incidents replayed. They had the benefit of being present during the hearing of the evidence. In our view, the evidence left it open to the jury to find that the first incident occurred when the complainant was 16. The applicant's submission to the contrary must be rejected. The verdict on charge 1 was not unsafe or unsatisfactory and, accordingly, the trial did not miscarry.

66 The applicant should have leave to add the proposed grounds 2 and 3 to the application for leave to appeal but the application should be refused.

[1] The applicant was originally sentenced on 9 March 2016, however that sentence was set aside due to a technical error and the applicant was resentenced on 15 March 2016.

[2] An application for leave to appeal against conviction and sentence in that case was heard with the present application.

[3] Who was not the applicant's counsel at the trial.

[4] MacKenzie v The Queen (1996) 190 CLR 348, 365-370; R v Carter [2009] VSCA 272 [18].

[6] Doja v The Queen (2009) 198 A Crim R 349, 359 [52]-[53].

[7] [2007] HCA 30; (2007) 230 CLR 559.

[8] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-597 [113]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-495; MFA v The Queen (2002) 213 CLR 606, 614 [25], 624 [59]-[61], 634 [97]; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-654 [38]-[40].

[9] [2010] HCA 38; (2010) 242 CLR 491, 500 [33]; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.