Auons v The Queen [2010] VSCA 223

2 On 20 March 2008 a 38 year old man, Damien Auons, was convicted in the County Court on sexual and other offences involving a number of young women in an outer suburban area of Melbourne between November 2002 and August 2006. On 14 August 2008 Auons was sentenced to a total of 11 years' imprisonment with a non-parole period of eight years in respect of those offences. He sought leave to appeal both his convictions and sentences. On 23 April 2010 this Court granted him leave to appeal his convictions, granted those appeals and ordered a new trial on each of the counts upon which he had been convicted. These are its reasons for having done so.

3 The presentment against the appellant contained 19 counts. The following chart sets out the result of his trial on each of those counts and the sentence imposed in respect of each of those of which he was found guilty:

Agreement with V1 (a child under the age of 18) for provision of sexual services in exchange for payment

Trafficked in a drug of dependence (Cannabis L) to V2 (a child under the age of 18 years)

Agreement with V2 (a child under the age of 18) for provision of sexual services in exchange for payment

Agreement with V4 (a child under the age of 18) for provision of sexual services in exchange for payment

Agreement with V3 (a child under the age of 18) for provision of sexual services in exchange for payment

Took part in act of sexual penetration with V4 (a child under the age of 16)

Indecent act with or in the presence of V4 (a child under the age of 16)

Indecent act with or in the presence of V4 (a child under the age of 16)

Indecent act with or in the presence of V3 (a child under the age of 16)

Indecent act with or in the presence of V3 (a child under the age of 16)

Took part in act of sexual penetration with V3 (a child under the age of 16)

Indecent act with or in the presence of V3 (a child under the age of 16)

Indecent act with or in the presence of V3 (a child under the age of 16)

Took part in act of sexual penetration with V3 (a child under the age of 16)

Took part in act of sexual penetration with V3 (a child under the age of 16)

4 The appellant was born on 6 September 1969. At the time of the offences he was aged in his mid 30s and lived with his father. Shortly before his offending commenced, he began to befriend a number of teenage girls in his local area. The girls had little or no income and many were having problems at home or were generally troubled. Through this network of young girls, the appellant met the victims, four girls aged between about 15 and 18 years of age.

5 The appellant met the victim of this count, V1, when she was 16. She had broken up with her boyfriend and the appellant counselled her about her problems. He took her on shopping trips and paid for things which she bought including underwear and demanded that she model the items for him. He spent significant amounts of money on her and gave her cash. The appellant and V1 maintained contact by text message in which he expressed affection for her. Whilst maintaining his friendship with V1 the appellant also met her sister J and her friend S. He took them on shopping trips which he also paid for. No offences were alleged in respect of these girls.

6 At some point the appellant told V1 that she could be his 'number one girl' if she gave him what he wanted. Subsequently he told her that he was sick of the relationship being a 'one-way street'. She asked him, via a text message, if he wanted sex and he responded 'no, I want your arse'. V1 agreed to provide sexual services to the appellant in return for money and other items until about March 2006. If she failed to fulfil her part of the agreement to provide those services he stopped giving her money and clothes.

7 These matters formed the basis of count 1: Entering or offering to enter into an agreement for sexual services by a child between 1 November 2002 and 17 January 2005.

8 This count, trafficking in a drug of dependence, involved the sale of cannabis by the appellant to MG on a number of occasions between 1 January 2006 and 31 August 2006.

9 This count involved V2, a girl the appellant met in about March 2006 when she was 17. He had supplied marijuana to a friend of hers and she sought to purchase some. At the time V2 was living with her school friend V3 because of difficulties which she was having at home.

10 The appellant regularly supplied V2 with cannabis for no payment and began to give her money. He took V2 and V3 on shopping trips and spent large sums of money buying clothes for them. A friend of V2's, C, was introduced to the appellant and she also obtained cannabis from him as did yet another young girl, AB.

11 The supply of drugs to V2 constituted the basis of count 3: trafficking in a drug of dependence to a child under the age of 18 between 1 March 2006 and 18 August 2006.

12 These counts were all counts of entering into an agreement for sexual services by a child. They involved three girls, V2, V4 and V3 respectively. V2 and V4 were offered a job by the appellant. It soon became apparent that the job included the provision of sexual services by the girls in return for material rewards. The appellant promised V2 a fully furnished house and money each week, a car and a monthly shopping excursion. V2 and V4 performed sexual activities with each other in front of the appellant in return for benefits. In each case these offences were said to have been committed between 1 March 2006 and 18 August 2006.

13 These counts involved V4, a child under 16 at the relevant time. Count 7 alleged sexual penetration and count 8 the performing of an indecent act with a child.

14 In about April 2006 V2 and V4 were drinking alcohol and smoking 'speed' at the appellant's residence. Whilst the appellant watched, they kissed and touched each other's genitals and V4 was digitally penetrated by V2. The appellant masturbated in front of the two girls during this incident and appeared to be using a mobile phone to record the sexual acts they were performing. He then gave them money. The counts allege that the criminal acts occurred between 1 March 2006 and 11 June 2006.

15 Count 8 involved an indecent act with or in the presence of a child under the age of 16, namely V4. The trial judge directed the jury to return a verdict of not guilty on this count.

16 This count alleged an indecent act with a child under the age of 16, namely V4. Three of the victims, V1, V3 and V4 agreed to perform sexual acts with each other in the appellant's presence for payment. V4 agreed to perform sexual acts with her friend Ge, a girl over the age of 18, whom she introduced to the appellant. Ge performed oral sex on V4 in the presence of the appellant whilst he appeared to use his mobile phone to record the event. This act was alleged to have occurred between 1 March 2006 and 11 June 2006.

17 This count alleged making or producing child pornography. The jury found the appellant not guilty on this count.

18 These counts concerned V3. They were both counts of indecent acts with or in the presence of a child under the age of 16.

19 V1 and V3, who were then aged 15, agreed to perform sexual acts with each other in the appellant's presence. On 19 May 2006 the appellant purchased a bottle of bourbon for them which they drank at V3's house where they were then living. The appellant picked them up there and took them to a motel in Frankston.

20 At the motel both girls kissed and fondled each other's breasts in the appellant's presence. He offered to get them things such as houses and money and told them that he wanted them to be his 'number one girls' but that they would have to have sex with him. He penetrated V1's vagina with his penis in the presence of V3. He told V3 to kiss V1 at the same time. These offences were alleged to have occurred on or about 19 May 2006 and between 20 May 2006 and 16 June 2006 respectively.

21 These counts all relate to V3. They were two counts of sexual penetration of a child under 16 (counts 13 and 16) and two counts of performing an indecent act with or in the presence of a child under 16 (counts 14 and 15). The appellant was convicted on counts 13, 15 and 16 and was acquitted on count 14.

22 V1 and V3 went to the appellant's house on several occasions to provide sexual services for him. He gave them alcohol and gave V1 free cannabis. He gave them money when they asked for it. On one occasion in about May 2006, the appellant was having penile/vaginal intercourse with V1 whilst V3 was kissing V1. Whilst this was occurring the appellant digitally penetrated V3's vagina.

23 On another occasion the appellant was again having penile/vaginal intercourse with V1 whilst V3 was kissing V1. After that occurred, the appellant told V3 to perform oral sex on him. She agreed in order to get money which the appellant had agreed to pay her.

24 This was a count of rape in respect of V2. The jury could not agree on a verdict and the Crown subsequently entered a Nolle prosequi.

25 This count of sexual penetration of a child under 16 involved V3. It occurred whilst V1, V3 and V4 were living together at a house in Frankston. The appellant visited two or three times a week when he would receive sexual services performed by either V4 and V3, V1 and V3 or V1 by herself. On one occasion, whilst V3 and V4 were performing sexual acts together in the appellant's presence, the appellant digitally penetrated V3's anus.

26 This count involved the rape of V2 on an occasion other than that alleged in count 17.

27 In late July 2006 the appellant took V2 to a doctor as she was experiencing pain on urination and had blood in her urine. When they returned to his house, the appellant told her that he wanted sex. She refused and went to bed. He nevertheless removed her underclothing and penetrated her vagina from behind with his penis. She did not consent and was crying.

28 After the events which gave rise to count 19, V2 told her parents of what had been occurring. The house in which she and other girls had been living was emptied of all its furniture and household goods by her mother's partner on 13 August 2006, thus rendering it uninhabitable. V3 and V4 were then housed by the appellant in motels for three nights after which they moved to V3's mother's home.

29 On 10 October 2006, the police executed a search warrant and seized a number of mobile phones and other items from the house at which the victims had been living and from the appellant's mother's house in Langwarrin. A black bum-bag containing $600 cash and other papers were located. Digital scales, scissors, silver foil and what appeared to be cannabis residue were seized from the appellant's motor vehicle, together with papers and a gymnasium contract in V3's name. An electricity bill for the house in a name similar to V2's was also located.

30 The appellant was interviewed by the police on 10 October 2006. He denied any knowledge of cannabis trafficking but admitted renting a house and that he let V2 live at the house. He said he did not know her that well but did it to look after her and help her out. He admitted knowing V4 and that she was 16. He admitted knowing V3 and that she was 15, 16 or 17. He said that he was going to pay their rent in exchange for their getting off drugs. He denied any sexual activities with the girls or watching any sexual activity between them.

31 The appellant admitted he paid for a motel room in May 2006 as the girls had nowhere to stay and that he paid for food and rent and gave the girls money. He said he did this so they would not take drugs. He admitted that he used the term 'my girls' and that the term 'number one girl' meant the one that he 'helped out' the most.

32 The appellant denied drug dealing and accounted for a large sum of money deposited into a TAB account in August 2005 as being derived from gambling. He said he gambled a lot and won a lot and often lent money to people.

33 As well as calling the four victims already referred to, the Crown called evidence from a number of other girls, P, T, J (V1's sister), R, L, AB and C as well as two male witnesses LE and MG who knew the appellant.

34 P met the appellant in 2004 through a friend who was considerably older. She often went on shopping trips with the appellant on which occasions he would sometimes buy her items of clothing that she chose. She thought that he spent 'a few hundred' on her. She was then aged 18 or 19. She remembered seeing him collecting $7,000 from the TAB, possibly in 2005. When she was with him, he constantly received phone calls. She introduced him to T and other female friends. The appellant never did anything untoward to her. He was always a 'gentleman'. She never felt that he wanted anything in return for the generosity he showed when they went shopping. She said he kept his money in a bum-bag.

35 T met the appellant through P at about the end of 2004 when she was aged 19. He was kind to her. One night when she was at a pub in Frankston and needed her insulin he took her and P to Somerville to get it. She went shopping with the appellant on more than one occasion and on one occasion he bought her a dress for about $200. He insisted on paying. The appellant never made any sexual advances to her. In conversation he referred to other girls that he knew as 'his girls'. She said that some girls took advantage of the appellant's generosity and that he may have been a bit gullible in that regard.

36 J met the appellant when she was about 15 through her sister. She knew that her sister was getting money from him so she wanted to get money as well. The appellant took J and her sister shopping to Dandenong Plaza and to Chadstone on another occasion. On each occasion he spent money on her which he got out of his bum-bag. He called her 'baby' and 'baby girl' and gave her personal advice about things like 'losing her virginity'. Sometimes he gave her cash. He told her that he wanted her sister V1 to work with him and said that it would involve a lot of money. J asked if she could get the job and he told her that she was too young. At Christmas time he gave her a card with $500 in it. The appellant told J that he had inherited money from his uncle. Whilst she knew him the appellant never asked her for sex. He told her that he helped young girls get off drugs. Her sister had told her that the appellant was a nice man who helped out girls who did not have any money.

37 R first met the appellant when she was 14 through her friend V1. The first time that she met him they went shopping at Chadstone where she bought items worth $120 but the appellant paid for them. He took the money from his bum-bag. She could not remember how many times she went shopping with the appellant. She would send him a text message and he would pick her up or they would meet up. He called her 'princess'. He would put his arm around her but he never did anything else. Before Christmas 2005 he gave her a tin and an envelope and said 'Merry Christmas'. The tin contained about $900 in coins and the envelope was for J. the appellant asked her if she wanted to his 'number one girl' via text message. He told her he loved her via text message.

38 The appellant told R that he was a 'undercover cop'. She said that sometimes she, V1 and J would get into arguments and be jealous of each other because of the things that they got from the appellant. They all agreed to stop seeing him because V1 'told them stuff'. But they broke this agreement and saw him behind each other's backs because they wanted clothes. R said that the appellant always behaved like a gentleman and there was nothing sexual in putting his arm around her.

39 L gave similar evidence to the other girls. She met the appellant through V1 and went shopping with him about five times in all. The appellant bought her clothes and jewellery, taking the money out of his bum-bag. On some of the trips she went with the appellant by herself and sometimes with V1. L talked to the appellant about things going on in her life - that things were not going well for her at home and she asked him if she could live in a room at the house occupied by V2 and V3. She then moved in with them. The appellant paid for the groceries and bills at the house.

40 The only physical contact L had with the appellant was 'a hug'. She regarded him as a friend. She thought that maybe he wanted more. She did not particularly notice anything between V2 and the appellant. He would sometimes go to V2's room. She saw marijuana in the house which came from the appellant. She saw him giving it to the girls. It was in foil. She did not have much contact with the appellant after the household broke up. L said that she trusted the appellant. He tried to help her out. She was 18 when they met. The appellant never made any sexual advances to her.

41 C met the appellant at the end of 2006. She was 18. He gave her advice about her home situation. She said that he told her he wanted her to be his 'number one girl'. She took this to mean that he wanted a sexual relationship. He took C shopping when he bought things for her. On ten occasions he gave her money. The most she ever got was $150. On one occasion he told her he was having a competition with his mates to sleep with girls in alphabetical order. He said he did not have anybody for 'S' and implied he would give her $3000 'to beat the competition'.

42 LE, a male, met the appellant in April 2006 through his friend V2. He saw the appellant on about 15 occasions when V2 was living with V3 and V4. He said the appellant gave the girls cigarettes, money, marijuana and food. LE said that the appellant would chat to the girls and 'grope' them in inappropriate places. He saw him put his hands on V4's breasts and move his hands down between her legs. He then hugged V3 and 'grabbed her bum'. He said he saw the appellant touch V2 on the breasts and 'her bum' and then he spread her legs open and tried to make her sit on him. LE saw the appellant give V3 and V2 $150 or $200 each to have their hair done. He got this money out of his bum-bag. The appellant told LE that he was a marijuana dealer. He saw the appellant give V2 a foil and when she opened it there was marijuana inside. In the course of his evidence LE described many instances of sexual activity involving the appellant's victims - some of it on video clips which the appellant showed him. In re-examination, he said that the appellant gave V2 marijuana 'at least once a day'. She never paid him for the marijuana.

43 MG, another male, told the Court that he bought 'dope' from the appellant in about January 2006 at his house. He said by 'dope' he meant marijuana. It was common knowledge that you could get marijuana from the appellant. He went about nine or ten times. At the time he first bought marijuana he was in a relationship with V2's mother. He gave further evidence concerning V2's living in the house occupied by V2 and V3 and of his having gone there and removed property from that house.

44 B, a hairdresser, first met the appellant through a mutual friend in 2006. The friend had gone to the appellant's house to buy marijuana. She went with him. The appellant came back with marijuana wrapped in foil. She could not recall if she saw money change hands. The appellant asked her if she smoked and that if she needed any to come back and see him. She saw the appellant also at the house in which V2, V3, and later L, lived in. She had been a childhood friend of V2.

45 The Crown also led evidence from the owners of the house occupied by V2, V3 and L, an employee of the TAB at Frankston, a general medical practitioner and numerous police officers.

46 The appellant did not give evidence and no witness was called on his behalf.

47 Ground 1 alleges that the appellant's trial miscarried because of the admission of evidence of a number of 'uncharged acts' said by the Crown to be relevant and admissible. Ground 3 alleges a failure by the trial judge to rule properly on questions of propensity and to charge the jury appropriately on the same matters. These grounds, which were argued together, were the primary grounds of appeal before this Court.

48 The arguments advanced in support of grounds 1 and 3 concerned four categories of evidence:

(a) the appellant's relationship with a number of young girls other than V1, V2, V3 and V4;

(b) sexual activity between the appellant and V1, V2, V3 and V4;

(c) sexual activity between V1, V2, V3 and V4 in the presence of the appellant; and

49 The evidence in category (a) was given by the young women already referred to in the terms summarised. The nature of the contact they described with the appellant was similar to that described by V1, with the exception that each witness denied that the appellant approached her for sex or to provide sexual services for others. In effect their evidence was simply that the appellant was very generous. Only one of them, L, gave evidence that she received money from the appellant and that in discussions with him he raised sexual themes and made oblique references to the provision of sexual services by her. However, a close perusal of her evidence on this matter, as she gave it at trial, shows that, although not objected to, it amounted to little more than an inadmissible conclusion on her part as to the appellant's intentions or motives.

50 Counsel for the Crown in this Court conceded that there had been no discussion before the trial judge as to the relevance of the evidence of the young women who were not victims and there was no ruling as to its admissibility. The evidence does not appear to have been opened to the jury by the prosecutor, nor was it the subject of any objection by defence counsel.[1] Indeed, from a comment made by the trial judge concerning 'uncharged acts' on the third day of the trial it seems that there had been no mention of these matters by the prosecutor to that time. His Honour did not know whether the Crown intended to rely on such evidence.

51 Although described in the grounds of appeal as evidence of 'uncharged acts', the evidence of these women who were not victims does not really fit that description at all, at least as the phrase is usually used. It was not evidence ' ... that reveals criminal or discreditable conduct of an accused other than the conduct with which he or she is charged.'[2] For the most part it was no more than a vivid description by a number of young women of the appellant's generosity towards them. However undesirable and, perhaps, suspicious such activity might have been, it was not illegal or necessarily discreditable. It was certainly prejudicial to the appellant although he relied upon his not having committed any illegal or untoward acts toward the girls involved to bolster his denial of having behaved criminally with respect to V1, V2, V3 and V4.

52 In his directions to the jury his Honour referred to this evidence in discussing what he referred to as 'probability reasoning'. He referred to the prostitution-related counts on the presentment and directed the jury to the effect that if they accepted the evidence of the other young women (i.e. the non-victims), as to the conduct of the appellant towards them, they could use it to infer that similar conduct said to have occurred in relation to the four victims of the prostitution offences in fact occurred and it was more likely that the appellant made the prostitution agreements alleged in counts 1, 4, 5 and 6. His Honour went on to say that the evidence could also be used to bolster the credit of the victims 'because of the similarities'.

53 The difficulty with this direction is that it assumes that the evidence given by the women who were not complainants was identical, or at least similar, to that of the victims. It was not. The vital difference was that in the case of the victims the appellant is said to have proceeded to agree with them that they would provide sexual services for reward. No such agreements were deposed to by any of the other women.

54 The evidence of the young women who were not victims was irrelevant to any issue between the Crown and the appellant. It did not rationally affect, directly or indirectly, the assessment of the probability of the existence of any fact in issue in the case.[3] No element of any of the offences charged in the presentment was rendered more probable because the appellant treated a number of young women similarly to the way in which he treated the four victims. Not only was that evidence irrelevant to any issue raised by the prostitution counts, its substance was never in issue. That the appellant treated the victims lavishly in the way they alleged was always conceded. The only issue in respect of counts 1, 4, 5 and 6 was whether the appellant entered into an agreement with each of those women to provide sexual services for payment - that is to say, whether he committed the offences alleged. The probabilities as to this issue were unaffected by the evidence of the young women who were not victims who said that the appellant treated them in a similar lavish way to the way he treated those women who were victims. He never sought to enter into similar agreements with them.

55 Had the trial judge required a proper identification of the use to be made of the evidence of the women who were not victims before the trial commenced its irrelevance would have become clear. It would have been excluded and the erroneous direction as to its effect in his Honour's charge would have been avoided. The miscarriage of the trial, on this basis at least, would have been averted.

56 The second and third groups of 'uncharged acts' relied upon under these grounds were the evidence of sexual activity between the appellant and the victims and activity between the victims themselves in the presence of the appellant. This evidence can properly be described as 'uncharged acts' in that it was criminal or at least disreputable behaviour of the appellant with which he was not charged, although, as the High Court warned in HML v The Queen,[4] the use of the term in front of the jury should be avoided.[5] Describing the events as uncharged acts may invite speculation as to why no charge was laid.

57 In his directions to the jury the trial judge said that this evidence was to be used solely to enable the evidence relating to the charges themselves to be placed in a 'more complete and realistic context'. Although his Honour referred to the evidence of the uncharged acts, he did not do so in sufficient detail to ensure that the jury understood the direction he was giving them, nor did he explain their relevance or the use to which they could be put beyond referring to 'context'.

58 Evidence of uncharged sexual acts by the appellant in relation to V1, V2, V3 and V4 was relevant on this trial as tending to show that he entertained a sexual interest in those women. So, for example, LE's evidence that the appellant 'groped' the victims in inappropriate places, put his hands on V4's breasts and between her legs, grabbed V3's buttocks or touched V2's breasts and buttocks and spread her legs open etc was admissible. If accepted, this evidence would enable the jury to find, in respect of each of the young women to whom the evidence related, that the appellant entertained a lustful or sexual interest in her. It might explain his preparedness to perform the acts, both consensual and non-consensual, with which he is charged. It may be enough to provide a motive for such acts, perhaps particularly for seeking a quasi-commercial arrangement with those women whereby they would provide sexual services on an on-going basis for financial reward, although care would need to be taken to ensure that the evidence went that far. It might also help to explain the attitudes and reactions of the young women to the charged offences themselves. It provides a setting or background for the appellant's offending, thus making those attitudes and reactions more understandable and less likely to be dismissed as fanciful. This is probably what the prosecutor meant when she used the word 'context' in explaining the use to which she proposed to use the evidence. Again, 'context' is a word which, if unexplained and not properly related to the particular circumstances of the case by the trial judge, might well be unintelligible to a jury.

59 In his directions to the jury as to this evidence, the trial judge referred to other conduct of the appellant which he said was not the subject of particular counts but which jurors might think constituted criminal activity or disreputable conduct on his part. Unfortunately, one of the examples of this evidence his Honour gave concerned, not an uncharged act at all, but rather the act the subject of count 18 - the appellant's alleged digital penetration of V3. To have referred to that incident in the context of the matters he was discussing in his directions at that point, was at best confusing to the jury and at worst, misleading. His Honour referred to the use of all of this evidence as placing the offence in a 'more complete and realistic context' - a direction which, although not erroneous, required more specific explanation than his Honour provided. He did include, however, a warning against using the evidence as evidence of a propensity to commit crime generally and so attributing guilt of the counts charged, by that reasoning, to the appellant.

60 The uncharged acts of sexual impropriety between the appellant and the victims which appear to have been relied upon by the Crown in this case constituted 'propensity evidence' as that term was used in s 398A of the Crimes Act 1958. That provision, which has now been repealed, governed the admissibility of such evidence at the time of the appellant's trial. Its admissibility depended upon it meeting two criteria set out in s 398A(2). The first of those criteria was that it be relevant to a fact in issue. It was. The court should have determined whether it was just to admit it according to the further criterion set out in the same sub-section. No formal determination of this issue was ever made in this case in respect of any of the evidence of uncharged acts. But then there appears to have been no objection to its reception and no attempt to have it excluded as being disproportionately prejudicial so as not to meet the second criterion required by s 398A(2). However, although no formal ruling was ever made and there was no reference to the statutory provision referred to above, on at least two occasions after the evidence was complete and before counsel addressed, the trial judge raised the question of uncharged acts of a sexual nature with counsel.

61 On the first of those occasions the prosecutor said the uncharged acts were 'purely background and contextual'. A short time later there was a discussion between the prosecutor, defence counsel and the trial judge concerning the digital anal penetration of V3 by the appellant and the evidence of LE as to his observations of the appellant engaging in inappropriate sexual conduct with some or all of the victims. That evidence is summarised in [42] above. The trial judge asked again what the Crown case was with respect to the uncharged acts. The prosecutor informed his Honour that the evidence of uncharged acts was said by the Crown to provide 'a more complete and realistic context'. No response to this assertion was made by defence counsel and there was no ruling by the trial judge, although he did refer to a 'similar fact' direction he intended to give the jury.

62 Other criticisms of the trial judge's charge were made by counsel for the appellant. One, which has considerable force, related to the way in which his Honour dealt with the question of how the evidence in respect of each of the prostitution counts (counts 1, 4, 5 and 6) would be able to be used by the jury in proof of each of the other prostitution counts. There may well have been particular distinguishing features of the appellant's conduct, or a particular modus operandi which he employed to induce the relevant victims to enter the prostitution agreements alleged in those counts. If there was, the factors which made that evidence cross-admissible should have been identified. The jury should have been given an explanation as to how the evidence could be properly used on each count. In fact his Honour said to the jury:

So to find the accused guilty of any or each of these three counts, 4, 5 and 6, you must find each element of the offence proved beyond reasonable doubt. You have got to consider each count separately. However, the evidence that relates to each of the counts is admissible in relation to the other counts because of the similarity, as I said to you before, of the evidence, of the circumstances of each of the evidence.

This direction was, in the circumstances, inadequate.[6]

63 Counsel for the appellant also criticised the trial judge's directions to the jury for not including an anti-substitution warning with respect to the evidence he left for their consideration concerning 'uncharged acts'. Counsel referred to R v Best[7] in which Callaway JA discussed the necessary directions in a case where the Crown relies on relationship evidence in sexual cases; that is to say, evidence of other sexual or like activity between the accused and the victim proffered to prove a sexual interest in him towards the victim. Callaway JA said:[8]

Three things have to be done. The first is to explain to the jury the limited purpose for which the relationship evidence is admitted. The second is to direct them not to substitute that evidence for evidence of the offences charged. The third is to warn them against reasoning that, because the accused engaged in other misconduct, he is the kind of person who is likely to have committed those offences.

His Honour quoted a passage from R v Dolan[9] where King CJ said:[10]

In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the Court, is allowed to go before a jury, it is incumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which any such evidence must not be put.

See also R v Grech[11] and R v Vonarx. [12]

64 In his final address, counsel for the appellant at trial had raised the possibility of collusion between some of the victims and other witnesses called by the Crown. In his charge to the jury the trial judge referred to counsel's address and warned the jury that before they could rely on 'probability reasoning', as he termed it, with respect to the similar evidence of various witnesses the jury must be satisfied that there was no collusion. His Honour was referring to evidence which, in part at least, included the evidence of various young women who were not victims of any criminal treatment at the hands of the appellant; treatment which was, by all accounts, innocent. As has already been shown this evidence was irrelevant. If, however, it had been relevant, his Honour's collusion warning would have been required. Indeed, he should have gone further. As Callaway JA pointed out in R v Best:[13]

Where collusion, unconscious influence or the like is raised as an issue, the judge should direct the jury that they must be satisfied beyond reasonable doubt that no such factor was operating before they use disputed similar fact evidence as part of their reasoning. That is in addition to any comment the judge may chose to make subject to s 61(3) of the Crimes Act 1958 in cases to which it applies.

It follows that if a warning such as that embarked upon by the trial judge was necessary in this case, the direction given by the trial judge would not have been sufficient, at least in respect of the evidence of the young women who were not victims.

65 In directing the jury as to uncharged acts the trial judge, with only one exception, gave no instruction as to the standard of proof required in respect of those acts for them to be used properly as propensity evidence. The exception related to count 10 - making a pornographic video, of which the appellant was acquitted. This was a further deficiency in his Honour's directions to the jury.[14]

66 The fourth matter raised by the appellant under the rubric of 'uncharged acts' related to grounds 2 and 3 relating to the appellant's alleged activities as a drug trafficker. Counts 2 and 3 on the presentment allege the trafficking of cannabis L between dates by the appellant to MG (count 2) and to V1, a child under the age of 18 (count 3).

67 The prosecutor opened the facts relating to count 2 to the jury by telling them that the appellant told E that he was a 'weed and marijuana dealer'. He had large amounts of cash that he kept in a bum bag around his waist. He was selling marijuana from January 2006 to August 2006 and sold it to MG on a number of occasions. She referred to police and other evidence relevant to this count.

68 With respect to count 3, the prosecutor told the jury that this count related to selling or supplying or providing marijuana to V1. She said that V1 was under the age of 18. The prosecutor said that V1 knew the appellant because he had supplied marijuana to another friend who had got it for her. She then referred to the appellant's activities in selling marijuana or supplying it to V4 who was 16 or 17 years old at the time and to another young girl, AB, who was also 16 or 17.

69 In his opening statement to the jury counsel for the appellant said that his client's case was that he helped people to get off drugs. He was never a drug dealer and never supplied marijuana to V1 or anyone else.

70 In a discussion with the Crown prosecutor before she began to lead the Crown evidence the trial judge raised the question of particulars of count 2 on the presentment. In response the prosecutor referred to the written Crown opening (which was not before this Court) and with respect to count 3 said:

... only [V2] has been nominated there but there will be evidence from [V4] and also [AB] in relation to that and they were both at the time under the age of 18.

The prosecutor said that 'the other references' would be uncharged acts. She went on:

... in terms of the contextual background the jury are entitled to take them into account as part of a res gestae.

The prosecutor then referred to evidence which would be given by V4 and AB and agreed with the trial judge that 'that's a matter of context'. No explanation was forthcoming as to the relevance of 'context' in the circumstances.

71 There must be considerable doubt as to the relevance and, hence, the admissibility of much of this evidence. Count 2 was not laid as a 'Giretti' count as the senior prosecutor in this Court conceded. The form of the presentment as well as the breadth of the Crown evidence on these counts must have troubled the trial judge. At the end of the trial his Honour found it necessary to question the prosecutor as to what the Crown was alleging in relation to counts 2 and 3. The subsequent short discussion is unenlightening.

72 In his charge to the jury the trial judge referred to the evidence of trafficking which he said was relevant to count 2. His Honour said:

The Crown, in a sense, relies on all that evidence but primarily on the evidence of [MG] that he expressly admitted that he bought cannabis there nine or ten times. This other evidence is used to support a conclusion that you would draw that over that period he did traffick in a drug of dependence.

The evidence his Honour referred to included the evidence of V1, the evidence of MG, L, V4 and V1. He then dealt with count 3 similarly.

73 At no stage in his directions to the jury on the trafficking counts does it appear that the trial judge took up the question of the 'uncharged acts'. It seems that by then his Honour regarded all of the evidence as being directly relevant to the offences charged. There was no direction as to the use of 'uncharged acts', probably because by the time the case reached its conclusion they had, in some way, been subsumed into the facts constituting counts 2 and 3. No reference was made to s 398A of the Crimes Act 1958 nor to any question of propensity or its relevance to counts of drug trafficking.

74 In the course of the trial much evidence was given by a number of witnesses as to the appellant's drug dealing. Those witnesses included not only those referred to by the prosecutor in opening but also others such as L and B. Witnesses were permitted not only to give evidence of having seen the appellant trafficking to others but also of blatant hearsay of trafficking of which they had become aware.

75 At no stage was any attempt made by the prosecutor to justify the leading of this evidence. How uncharged acts of drug dealing could demonstrate anything other than an irrelevant propensity to engage in drug dealing and thus be excluded by a proper application of s 398A of the Crimes Act 1958 was never explained. Nor was there any explanation proffered for allowing witnesses to give evidence of the appellant's reputation as a drug dealer.

76 With respect to grounds 1 and 3 the Crown made but a faint response. The Senior Crown prosecutor who appeared in this Court (but not at the trial), Mr McArdle QC, conceded that there was no explicit adjudication by the Court in respect of the admissibility, pursuant to s 398A of the Crimes Act 1958, of uncharged acts as legitimate propensity evidence. Nor was there any identification, at least until well into the trial, of what uncharged acts were relied upon with respect to the sexual offences and none at all with respect to the trafficking counts. Nonetheless, said Mr McArdle, the fact that the judge did not make a formal ruling does not mean that he had not made an appropriate adjudication. Overall, he appeared largely to concede the appellant's case, although he did submit that it was 'difficult to see how the probability reasoning that the jury was told was available to them, could be used to the disadvantage of the appellant.'

77 Mr McArdle also pointed out that defence counsel, for the most part, did not take appropriate objection to errors in the conduct of the trial either as to the evidence or as to the trial judge's charge. Whilst this is certainly so, many of the errors were, in this case, so egregious that it is doubtful if any effective remedial action could have been taken short of aborting the trial at various points as it progressed. This Court cannot be oblivious to the significant risk that in this case there was a very high risk, perhaps a probability, of a miscarriage of justice in that the appellant did not receive a trial according to law.

78 Grounds 1 and 3 of the appellant's grounds of appeal must be upheld. He is entitled to a new trial on those grounds.

79 This ground relates solely to the appellant's convictions on counts 2 and 3 - the drug trafficking convictions. The appellant complains that the way in which these counts were litigated and, in particular, the way in which the trial judge left them to the jury meant that the verdicts were tainted by latent duplicity or uncertainty. Put simply, this complaint means that, having regard to the evidence before it and the fact that that evidence could relate to one or more acts constituting the actus reus of counts 2 and 3 respectively, it is impossible to determine what the jury actually decided.

80 At the point at which this case concluded there were a number of witnesses who had deposed to drug trafficking by the appellant. Although it appears that the Crown relied in respect of count 2 mainly upon acts of trafficking to MG there was also much evidence of other acts of trafficking. Much the same could be said about count 3 where the jury were left to consider not only the evidence of the victim, V2, but also the evidence of other witnesses who spoke of the appellant having supplied marijuana to other persons under 18 years of age - the actus reus of count 3. Although some of this other evidence might have been intended by the Crown to be used as 'uncharged acts', by the time the case got to the jury it was put by the trial judge that evidence of a number of different acts of trafficking could constitute the actus reus of each of the counts charged.

81 Latent duplicity or uncertainty affects a verdict whenever any one of a number of events of which evidence is before the jury could constitute the actus reus of the crime charged. In such a case a verdict of guilty may mean that the Crown succeeded in convincing the jury that each of the acts referred to in the evidence occurred as the witnesses said they did. On the other hand, a verdict of guilty may merely mean that each of the jurors was satisfied to the requisite standard that an event which constituted the actus reus occurred, the whole jury not necessarily being unanimous in respect of the same event.

82 In R v Trotter[15] in which the Full Court set aside a conviction where a jury had returned a verdict of guilty on a presentment alleging one count of indecent assault after a trial in which evidence of two separate incidents, either of which could have constituted the actus reus of the charge laid, was led by the Crown. The Court held that there was no way of knowing which act constituted the indecent assault of which the accused was convicted. The conviction was uncertain. It declined to apply the proviso and ordered a new trial at which the prosecution would either have to specify the act it alleged as the indecent assault or amend the presentment to charge two such assaults.

83 A similar problem occurred in R v Rigoli[16] where doubt existed as to whether jurors might not have been unanimous as to particular acts of fraudulent conduct where a count in a presentment encompassed conduct which allegedly occurred over a long period. The Court quashed the conviction.

84 In S v R[17] the High Court quashed three incest convictions because each count on the indictment was infected by what Gaudron and McHugh JJ referred to as 'latent duplicity'. The indictment had charged the accused with three counts of incest, each having occurred on an unspecified date in a particular calendar year. Although not duplicitous on its face, as each count alleged only one act of incest, the evidence admitted on the trial was not specific as to the count charged. The complainant gave evidence of two specific acts of intercourse, only one of which was possibly identified as to time. The judge charged the jury to the effect that they had to be satisfied beyond doubt that at least on one occasion during each of the relevant years there was an act of incest. The High Court upheld the appeal because it could not be said that the jury had been unanimous in respect of any one particular act. Gaudron and McHugh JJ considered that the orderly administration of justice and its importance in avoiding prejudice to an accused were important considerations for the existence of a rule against duplicitous complaints. Their Honours said:[18]

There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.

85 In this case, before the evidence was led his Honour sought from the Crown an indication of the way in which it intended the evidence of various acts of trafficking to be used by the jury. He received no adequate assistance from the prosecutor in this respect and the matter was not dealt with again until, as already referred to, the case went to the jury on a basis where it could have considered any one of a number of acts of trafficking - or all or some of them - as constituting the actus reus of counts 2 and 3 respectively.

86 It was incumbent on the trial judge not to permit this trial to commence until the Crown made it clear just what evidence it proffered to prove the actus reus of each of the offences charged. As the Crown conceded in this Court, these counts were not laid as 'Giretti' counts. The trial on these two counts was fundamentally flawed by the admission of evidence of multiple acts of trafficking, not to mention, on some occasions, hearsay and irrelevant opinion on the same question.

87 The appellant must succeed on ground 2. Had this been the only matter upon which the trial had miscarried it might have been possible to order a new trial merely in respect of those counts. However, for the reasons already expressed there has to be a new trial of the whole presentment (other than those counts upon which the appellant was acquitted).

88 Although there were two other grounds which related to the question of onus of proof and the appellant's awareness of lack of consent in respect of counts 17 and 19, it is not necessary to deal with those counts here. The trial has so clearly miscarried there must be a new trial regardless of what outcome a consideration of these grounds would have revealed.

89 The trial was complex. It was made so not only by the complexity of the facts which gave rise to it but also by the number of complainants and the relationships between them and between them and the appellant. To these complexities can be added the nature and number of counts charged and the mixing of counts of drug trafficking with those of a sexual nature. Further, despite the trial judge's early attempts to have the Crown articulate appropriately the case which it was presenting, that case was never adequately put to the Court. His Honour did not receive from the prosecutor the assistance to which, as a trial judge, he was entitled. Nor was defence counsel as astute as he ought to have been in the protection of his client's interests and in assisting the Court to perform its function properly. This combination of circumstances has led to the necessity for a new trial.

90 Whilst it is entirely a matter for the Crown to determine the form of an indictment and the case which will be presented in proof of the counts on it, serious consideration should be given to a simplification of this case before it is retried. On its face, the case appears to be a strong one. Careful consideration might be given to its presentation in a somewhat simpler form. Such reconsideration must also take into account, of course, that a retrial will be conducted in accordance with the Evidence Act 2008 and, as to procedure, the Criminal Procedure Act 2009.

[1] Who was not counsel for the appellant in this Court.

[2] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, 349 (Gleeson CJ).

[3] Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, 497-8; Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370, 371; Sir James Stephen_, Digest of the Law of Evidence_, (5th ed, 1887) Art 1, p 2, quoted by McHugh J in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, 24. Although not applicable to this case, now see section 55(1) of the Evidence Act 2008.

[4] [2008] HCA 16; (2008) 235 CLR 334.

[5] Ibid 349 (Gleeson CJ) and 389 (Hayne J).

[6] See R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375.

[7] [1998] 4 VR 603.

[9] [1992] SASC 3638; (1992) 58 SASR 501.

[11] [1997] 2 VR 609, 614.

[12] [1999] 3 VR 618, 624-625.

[13] [1998] 4 VR 603, 616.

[14] R v Sadler [2008] VSCA 198, [65].

[15] (1982) 7 A Crim R 8.

[16] [2006] VSCA 1.

[17] [1989] HCA 66; (1989) 168 CLR 266.