Criminal Law - Appeal and new trial and inquiry after conviction - Particular grounds - Misdirection and non-direction - Where grounds for interference with verdict - Particular cases - Where appeal dismissed - Direction to jury - Whether failure to direct the jury about propensity evidence.

KBT v R (1996 - 1997) 191 CLR 417; Perry v R [1982] HCA 75; (1982) 150 CLR 580; Sutton v R (1983 - [1984] HCA 5; 1984) 152 CLR 528, applied.

R v Kemp [1997] 1 Qd R 383; R v Kemp (No 2) [1998] 2 Qd R 510; R v S [1998] QCA 71; [1999] 2 Qd R 89, followed.

Criminal Law - Appeal and new trial and inquiry after conviction - Miscarriage of justice - Tests - Misdirection and non-direction - Inadequate summing up - Whether failure to direct the jury about propensity evidence produced miscarriage of justice.

KBT v R (1996 - 1997) 191 CLR 417; R v Kemp [1997] 1 Qd R 383; R v Kemp (No 2) [1998] 2 Qd R 510; R v S [1998] QCA 71; [1999] 2 Qd R 89; Perry v R [1982] HCA 75; (1982) 150 CLR 580; Sutton v R (1983 - [1984] HCA 5; 1984) 152 CLR 528, referred to.

Judgment Number: [1999] TASSC 141

1 I have had the advantage of reading the reasons for judgment of both my learned brother judges. I agree with their reasons and their conclusion that the appeal against conviction and the appeal against sentence should be dismissed.

2 An indictment for the crime of maintaining a sexual relationship with a young person prescribed by the Criminal Code, s125A, cuts across a fundamental rule of criminal pleading. The statutory prescription of the crime necessarily results in an indictment that is duplicitous. In many cases the inherent duplicity is compounded by the fact that the evidence may be such that the jury have to consider whether one or more of the unlawful sexual acts relied upon by the Crown constitutes any one of a number of the crimes within the scope of the section. This makes the task of the sentencing judge a very difficult one. He or she has an obligation to find the facts for the purpose of imposing sentence but, in doing so, is bound:

(a) not to take into account circumstances which are ingredients of a more serious crime in respect of which there has been no charge or an acquittal, see Lovegrove v R [1961] Tas R 106; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; and

(b) to adopt a view of the facts which is consistent with the express or necessarily implied findings of the jury, see R v Wilcox [1984] Crim LR 690; Bresnehan v R [1992] TASSC 55; (1992) 1 Tas R 234 at 243.

3 In the case of a verdict of guilty of the crime of maintaining a sexual relationship with a young person, the judge may well unwittingly breach one or both of these rules when finding the facts for the purpose of imposing sentence because he or she may not be able to determine from the verdict the number or the identity of the three or more unlawful sexual acts upon which the jury verdict is based. This may well have serious implications. For example, in a case where one or more of the unlawful sexual acts relied upon are left to the jury to consider as either crimes of rape or crimes of aggravated indecent assault or even, perhaps, indecent assault, the jury may not be satisfied to the requisite degree of any more than the commission of the last mentioned crime, but the judge may find for the purpose of imposing sentence that the accused was guilty of three or more crimes of rape.

4 This problem did not really arise in this case because the defence was a complete denial of any impropriety and the complainant's account of the last unlawful act was consistent only with the commission of the crime of rape.

5 It seems to me that upon the trial of an indictment for the crime of maintaining a sexual relationship with a young person, contrary to the Code, s125A, consideration might usefully be given to the invocation of the provisions of the Code, s383(1)(b) which provides:

"383 - (1) Upon the trial of an indictment the jury may in any case -

(b) find specially upon all the facts necessary to enable the judge to pass judgment; or

6 It may not be necessary to require the jury to find the facts with respect to each of the unlawful sexual acts relied upon, but where some of those unlawful acts are left to the jury upon the basis that they could constitute crimes of varying severity, findings of fact would assist in ensuring that the sentencing judge does not impose sentence upon a basis contrary to the findings of the jury.

7 The appellant was convicted of the crime of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The Code, s125A(3) relevantly provides:

"(3) An accused person is guilty of having committed an offence under subsection (2) if, during a particular period when the young person was under the age of 17 years -

(a) the accused committed an unlawful sexual act in relation to the young person on at least 3 occasions;

8 An unlawful sexual act is one that constitutes a crime as provided by specified sections of the Code which, relevantly, include indecent assault (s127), aggravated indecent assault (s127A) and rape (s185). By virtue of s125A(4)(b):

"(b) the unlawful sexual act that was committed on any one of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions."

9 The indictment stated a period of time, namely between 1 March 1996 and 31 March 1997 as being the relevant period. The six acts alleged were said to have occurred on five separate occasions, namely:

1 The accused touched [complainant's] penis, thereby committing the crime of indecent assault.

2 The accused sucked [complainant's] penis, thereby committing the crime of indecent assault.

3 The accused got [complainant] to suck his penis, thereby committing the crime of sexual intercourse with a young person under the age of 17 years.

In a stationary truck at the Pyengana turnoff -

4 The accused sucked [complainant's] penis, thereby committing the crime of indecent assault.

In a stationary truck at the Pyengana turnoff -

5 The accused sucked [complainant's] penis, thereby committing the crime of indecent assault.

In a stationary car or station wagon (going to meet a truck), at Evercreech -

6 The accused pushed [complainant's] head down and forced him to suck his penis, thereby committing the crime of rape or, if not that, the crime of sexual intercourse with a young person under the age of 17 years."

10 The sole ground of appeal against conviction is that:

"The learned Trial Judge erred in law in his direction to the jury in that he failed to warn the jury against the dangers of propensity reasoning."

11 The learned trial judge had given no such direction, nor was one sought. He did direct the jury that they must be satisfied that a crime was committed on at least three occasions, stating:

"There are five separate occasions described in [the complainant's] evidence which if you believed him would mean that these crimes were committed against him it seems to me. Five separate occasions. More than five crimes because on some occasions there might have been two different crimes that were committed against him on a particular occasion if you believe his evidence. But there are five different occasions, five different days, five different days. I think I can say that for this case. So what you have got to be satisfied is, beyond reasonable doubt, that Mr Emery committed one of those three crimes there on at least three of those days. On three of those days. And you must be agreed, either unanimously or ten or more, of the same three occasions. Right. Now it would not be sufficient for example that if six of you were satisfied beyond reasonable doubt that he committed one or other of these crimes on the first, second and third occasion, and the other six of you said 'No, no don't agree, with that, but we are satisfied he committed it on the third, fourth and fifth occasion, all that would mean is that all twelve of you are agreed as to the third occasion but you are not agreed sufficiently as to the first, second, fourth or fifth. Well you could not find him guilty of the crime charged, that is of the one charged in the indictment, you could find him guilty of something else which I will explain later. So you must be satisfied that he committed one or other of these crimes on three of those days, and you must be agreed as to the same three days. You might be agreed as to four or five, of course. I am just looking at my notes to see if I need to say any more about that."

The direction made it clear that the jury was required to consider each occasion separately.

12 The argument of the appellant is that because the Code, s125A, is a special provision permitting the trial of a number of crimes within one count which might not be particularised by reference to date or place, a direction is required in terms similar to that given to a jury considering a series of individual crimes. Counsel contended that the finding by the jury in relation to the first occurrence said to have occurred at the home of the accused might have affected their reasoning in relation to subsequent occasions. In the circumstances of this case, it is difficult to see in what form a "propensity" direction could have been given. The evidence adduced on the trial was effectively "oath against oath". The complainant gave an account of acts of sexual misconduct which was denied by the appellant. In order to find that the first event had occurred, the jury was required to be satisfied beyond reasonable doubt that there had been an indecent assault which involved their acceptance of the complainant as an honest and accurate witness. Once they were satisfied that he was an honest witness, that assessment would colour the approach to the second claimed occurrence. It was not the commission of indecency by the appellant which affected the second and subsequent findings, but the acceptance of the evidence of the complainant and, by implication, the rejection of the denial by the appellant.

13 The terms "propensity" and "disposition" have been used synonymously in the sense of connoting a tendency to behave in a particular way or have a particular inclination, although propensity more properly connotes a behavioural inclination (see Law of Evidence in Australia, Gillies, 2 ed, 395 n2). It is defined grammatically as "the quality or character of being 'propense' or inclined to something, inclination, tendency or bent", while "propense" is "an inclination, bias ... disposed, prone, ready, willing" (Oxford 1975 Ed). In evidentiary terms, it describes the use of conduct external to the subject matter of the charge in the determination of a particular issue or verdict. It is sometimes considered as being of the same nature as "similar fact" evidence. The principles were first considered by the Court for Crown Cases Reviewed in R v Oddy 2 Den CC 265 and stated by Lord Herschell in Makin v Attorney-General for New South Wales [1894] AC 57 in the following terms at 65:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other."

These principles were approved in Markby v R [1978] HCA 29; (1978) 140 CLR 108, a case in which Gibbs ACJ said, at 116:

"The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition."

The reasoning was further explained by Gibbs CJ in Perry v R [1982] HCA 75; (1982) 150 CLR 580 at 585, when he said:

"Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused. A jury might attach too much importance to it. It would, however, be a mistake to think that because the reason for the rule is that the evidence would be unfairly prejudicial, the rule itself does no more than require the judge to exercise a discretion, and to weigh the prejudicial effect of the evidence against its probative value. Many cases, including Reg v Boardman (1975) AC 421, Harris v Director of Public Prosecutions [1952] AC 694, and Markby v The Queen, to name only a few, have since recognized that the principles laid down in Makin v Attorney-General (NSW) are authoritative. A trial judge must decide as a matter of law whether the evidence is admissible, and it is only if he decides that it answers the test of admissibility that he need consider whether he should exclude it in the exercise of his discretion. The importance of the distinction between the two steps which the trial judge is required to take can be seen if the case goes on appeal, since the grounds on which a court of criminal appeal will intervene will be different depending on whether inadmissible evidence has been received or there is a challenge to the exercise of the judge's discretion."

14 The rationale was the subject of academic and judicial criticism (Piragolf Similar Fact Evidence, Toronto 1981, Cases and Materials on Evidence, Wright and Williams 1980, Dissimilar Judgments on Similar Facts (1984) 58 ALJ 74, Commentary, Cross J, Australian Journal of Forensic Sciences 143, R v Sutton (No 2) (1983) 32 SASR 553) which was followed by a reaffirmation of the previous statements in Sutton v R (1983 - [1984] HCA 5; 1984) 152 CLR 528. In Sutton, despite the fact that there were three complainants of criminal sexual conduct, the evidence of each was held to be admissible on the other charges. In Sutton, Murphy J believed that the protection against injustice lay with the power to sever the indictment, rather than concentration on the rules of "similar fact" evidence. Similarity determined severability. None of the above cases involved challenge on the ground that a course of conduct involving the same complainant specified in the indictment or particulars, required consideration of "propensity". All involved consideration of the introduction and use of evidence, external to the determination of responsibility for the act charged. Propensity has little, if any, place in the consideration of multiple counts of theft from the same employer over a period of time. The number of charges laid (R v Randell [1999] TASSC 78) might warrant severance because of prejudice by weight of evidence, rather than reasoning process. The prejudice that there must be guilt because so many people have complained is not the same as the introduction of external material showing predisposition.

15 What is forbidden is the use of similar fact evidence as part of the process of proving a component of proscribed conduct. When the evidence is admitted, its purpose must be articulated and the jury directed as to the limitations of use. The reasons for restriction are:

(1) Unfairness in requiring an accused to defend conduct said to have been committed perhaps long ago.

(2) Distraction and confusion caused by the introduction of collateral issues.

(3) Danger inherent in human nature in judging a person according to perceived character.

A useful summation of the dangers associated with propensity evidence is provided by the late Justice Neasey in his paper Similar Fact Evidence and Propensity Reasoning (1985) 9 Crim LJ 233 when he concluded, at 247 - 248:

"Over and above, or as a compound of these reasons [those referred to above] (it is submitted), is the basic injustice of admitting evidence of past misconduct to show propensity because of absence of probative value for the purpose of tending to prove that the accused committed the act charged (that is, at the particular time and place he is alleged to have committed it). Even if the other-conduct evidence is such that it may justifiably form the basis of an inference that the accused has an established and continuing disposition to engage in a particular kind of conduct, it cannot do more than tend to show a probability that such conduct will be repeated at some time in the future. It cannot be predictively specific as to any future particular time or place. If the evidence should be admitted in absence of the kind of strong probative force in light of all the evidence which the courts have so far insisted upon, a drastic lowering of the criminal standard of proof of commission of the act charged is likely. Any proposal to change the present law by admitting propensity evidence should be resisted."

16 These dangers are not necessarily inherent in the trial of a number of crimes comprised in the one indictment. None of these dangers were present in the circumstances of this appeal. The complainant described a series of incidents which, together, constituted the crime alleged. The narrative of the complainant formed a sequence of events, not a collection of disparate acts or conduct.

17 The appellant contends that where distinct events are required to constitute the crime, there ought be some step taken "to protect the accused person against the risk of impermissible prejudice", (Sutton (supra), Brennan J at 542), and relies upon an analysis of a comparable provision (Criminal Code (Qld), s229B(1)) by the High Court in KBT v R (1996 - 1997) 191 CLR 417. The Queensland section relevantly provided:

(1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship ... done an act defined to constitute an offence of a sexual nature ... on 3 or more occasions ...".

The court held that in order to convict, a jury was required to agree as to the commission of the same three or more acts. In the course of their reasons for judgment, Brennan CJ, Toohey, Gaudron and Gummow JJ stated, at 423:

"It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of 'an act defined to constitute an offence of a sexual nature ... on 3 or more occasions' for the purposes of s 229B(1A). Moreover, if the prosecution evidence in support of a charge under s 229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s 229B(1A)."

The requirement to find the occurrence of a particular act is separate from consideration of propensity reasoning. A jury is not entitled, on the basis of a general course of claimed misconduct, without more, to find the occurrence of a particular act proscribed by Parliament. There must be concurrence between the evidence and an act, in order to give rise to the operation of s125A. That exercise must be conducted at least three times before there can be a conviction. A jury is not entitled to reason that since there was general history of sexual misbehaviour that there was "necessarily" the occurrence of a proscribed act. It is for that reason that the majority of the High Court in KBT v R (supra) concluded that the Queensland Court of Appeal had erred in declining to apply the provisions. Kirby J stated a wider view when, at 432, he said:

"There is a special danger of unfairness where, as here, a crime which permits imprecise and general evidence to be proved is coupled in the indictment with other sexual offences specified with particularity. This Court has noted the special risks of unfairness where a number of sexual offences are charged together De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1; 68 ALR 1, cf R v B [1989] 2 Qd R 343. Although, as a matter of procedure, that course is permitted by the Code (s567(2)), the dangers inherent in the possibility that a jury may infer guilt of several offences from the proof of guilt of one or some, requires care in the joinder of counts, attention to the possible need to order separate trials (see Code, s597A(1)) appropriate judicial warnings against the dangers of propensity reasoning and vigilant consideration of complaints of unfairness when these are brought on appeal following conviction."

The danger is that generalised evidence of a relationship could be used improperly in that a jury, once satisfied that a single act occurred, "might conclude that an accused has a propensity to guilt of the type of crime charged ...", Kirby J at 432.

18 In the circumstances of this case, there existed no such risk. Each occurrence was identified and discrete. The jury was not asked to conclude the particular from the general. They were asked to consider particular events separately and only if satisfied as to the requisite number could they then convict. This process did not involve propensity reasoning of the nature considered in Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 or BRS v R [1997] HCA 47; (1997) 191 CLR 275. This was not a case involving different complainants (De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1; R v Schlaefar (1984) 37 SASR 207), nor one of a multiplicity of counts with the attendant risk of prejudice (R v Randell (supra)).

19 In R v Kemp [1997] 1 Qd R 383, the Queensland Court of Appeal ordered a new trial in a case involving 12 sexual offences, including that of maintaining a sexual relationship. In that case, the court was considering the use of evidence external to that particularised in the indictment. Fitzgerald P stated, at 398 - 399:

"Further, there are obvious problems associated with evidence of the relationship between a complainant and an accused which alleges the commission of other offences by the accused and hence, because of his criminal conduct or character, his propensity to offend, leading in turn to an inference that he committed the offence or offences with which he is charged. As a matter of principle, it is difficult to perceive why the admissibility of such evidence should not be subject to the test for propensity evidence established in Hoch v R [1988] HCA 50; (1988) 165 CLR 292 and Pfennig v R [1995] HCA 7; (1995) 127 ALR 99; however, that need not be decided in this case, which is primarily, at least, concerned with the adequacy of the trial judge's summing-up.

In my opinion, it was incumbent on the trial judge to ensure that the jury fully understood that any process of propensity reasoning was totally wrong.

Further, the trial judge was required to direct the jury in clear, unequivocal terms that the complainant's generalised evidence could not be used by them in their evaluation of her specific allegations against the appellant except that, if they did not believe, or had a doubt about the credibility or reliability of, her generalised evidence, that was a matter to be brought to account in favour of the appellant in their consideration of the complainant's specific allegations.

It was also necessary for the jury to be told that disbelief or doubt concerning all or any of her specific allegations was a matter to be considered, in favour of the appellant, when evaluating the complainant's generalised evidence."

20 It was the use of generalised evidence which required a direction as to the process of propensity reasoning. The court did not consider the need for a specific direction, either as to the process in making particular findings on the crimes particularised, or the reasoning process in concluding, from those specific findings, that there had existed an unlawful sexual relationship. The nature of the evidence was further considered by the Court of Appeal in R v Kemp (No 2) [1998] 2 Qd R 510, when McCrossen CJ stated, at 511 - 512:

"In the general aspect of its case, the Crown will have to prove that between the complainant and the accused there existed a relationship which had an unlawful sexual nature. Use of the term 'relationship' implies a continuity of contact in which both parties are involved; the sexual element will be the particular character of the relationship which will appear. Evidence of conduct occurring between the two parties, if it pointed to the existence of a sexual character in their relationship during the specified period, would be direct evidence of an aspect of this offence. Of course, in the end, it has to be an unlawful relationship which is shown and that must be a relationship which includes unlawful sexual acts. But the conduct to be relevant and admissible does not have to be restricted to specific sexual offences. Proof of conduct going to show in a more general way the sexual nature of the relationship or the continuity of such a relationship will be a step along the path of proof by the Crown. Such evidence is not propensity evidence or similar fact evidence subject to the particular rules of exclusion which apply to evidence of that kind, although it could be fair to describe it as context evidence which assists in proof of the necessary sexual element.

Conduct that is direct evidence of part of the pattern which has to be shown namely a prevailing relationship of a sexual nature is admissible and if it goes so far as to reveal a sexual offence it will be direct evidence of a further part of what has to be shown, namely an unlawful relationship. In either case, with other similar evidence, it will go in proof of the element of continuity which is involved in maintaining a relationship."

Pincus J was of a similar view, concluding, at 512:

"Where what has to be proved is not just a single incident, or three incidents, but a s 229B relationship - a situation subsisting over a period of time - acts of the accused tending to show a 'guilty passion' at relevant times are directly relevant; in Court as in ordinary life, one deduces that two people have a sexual relationship with one another, wholly or in part from evidence that they engage in acts characteristic of such a relationship.

A question was raised before us as to the relevance of the notion of propensity evidence to charges under s 229B. If a man is charged with having the relationship prohibited by s 229B, then evidence that, for example, he used from time to time touch the complainant in a sexual way does not get in as propensity evidence; it is simply evidence going to prove the case sought to be made - that there was a sexual relationship. Such evidence is relevant whether or not, were an offence other than one under s 229B in issue, the evidence would pass the tests for admission of propensity evidence, now authoritatively laid down in Pfennig [1995] HCA 7; (1995) 182 CLR 461."

21 The question received further consideration by the Queensland court in R v S [1998] QCA 71; [1999] 2 Qd R 89. In that case, the complainant had given evidence of regular sexual misconduct over a five month period and gave an additional account of previous acts of indecency, which were uncharged, and said to have occurred in Victoria. The accused complained that there had been error in the failure of the trial judge to properly direct the jury in relation to the evidence of what had occurred in Victoria. The appellant relied on the decision of the High Court in BRS v R (supra) as authority for the requirement that a "propensity reasoning" direction ought to have been given. The court said in relation to this submission, at 95:

"As regards these two offences, reliance was placed on BRS v The Queen [1997] HCA 47; (1997) 71 ALJR 1512, holding that, in respect of evidence admitted at the trial of sexual acts other than that or those charged, the jury must be warned of the limits on the use that might be made of such evidence, and in particular that it was not to be treated as evidence of propensity leading to a positive conclusion of guilt as regards the offence charged. BRS v The Queen was a case in which the evidence was of other acts committed on or with a different victim, but there is little doubt of the need for an appropriate warning or explanation even where the same victim has been the target of those other acts. See, generally, R v Kemp [1997] 1 Qd R 383; R v Grech [1997] 2 VR 609; R v W [1997] QCA 415; [1998] 2 Qd R 531. In the last of these cases Pincus JA and Muir J said that there was a degree of artificiality in holding that the evidence of uncharged offences could properly be used to show the existence of a sexual relationship between the accused and his victim, but not to show a mere propensity to commit offences of the kind in question. The artificiality is even greater in this case, where the Crown charged the appellant with and secured a guilty verdict on count 2, which involved proof beyond reasonable doubt that the appellant had at an earlier time maintained a sexual relationship with the complainant. In most cases it would be almost impossible to explain to the jury in a satisfactory way that the evidence to that effect should not be used as indicating a predilection on the part of the accused to commit indecent acts on his victim. The artificiality is heightened in the present case when the comparatively minor nature of the acts in counts 3 and 4 are considered, and when it is also recalled that the complaint in ground (ii) is specifically limited to the incidents in Victoria that were not the subject of any charges against the appellant at his trial."

22 As Calloway JA said in Arundell v R [1998] VSCA 102; (1998) 104 A Crim R 78 at 101 - 102, a case in which the Victorian Court of Appeal considered a similar "propensity argument" involving multiple counts of sexual misconduct committed against a single complainant:

"Propensity warnings are important and this Court has not hesitated to insist on them in proper cases. For a recent example, see R v Thornely (unreported, Court of Criminal Appeal Vic No 144 of 1997, 30 March 1998), especially at p4. They may become even more important if propensity evidence is more readily admitted pursuant to s398A of the Crimes Act. See R v Best (1998). They are not, however, designed for facts such as these."

23 In the circumstances of this case, the giving of a "propensity" direction would have amounted to an artificial exercise. The circumstances included:

(2) The acts constituting the crime were discrete and identified.

(3) There was no general evidence outside the matters specified.

(4) The events occurred over a relatively short period of time.

(5) There was no "relationship" evidence or issue taken as to contact between the complainant and the appellant.

(6) The jury was directed to consider each occurrence separately.

(7) The jury was permitted to use a finding as to the honesty and accuracy of the complainant in relation to the first event in its consideration of the other events.

(8) The case was one of word against word. This was not a case of circumstantial or inferential reasoning. The complainant said that certain events had occurred whilst the appellant denied any wrongdoing. There was no suggestion of conduct misinterpreted.

(9) There was little, if any, evidence used as corroboration.

24 The appeal against conviction ought be dismissed.

25 The complainant was a boy aged 9 and 10 at the time of the sexual misconduct. The appellant, aged 57 at the relevant time, was of good character and had no relevant prior convictions. The conduct, involving five occasions, occurred over a 12 month period. The appellant and the complainant knew each other and there was an element of breach of trust in the acts of sexual predation. Those acts were one of masturbation and oral penetration.

26 The appellant seeks review of the sentence of imprisonment for four years on the ground that it was "manifestly excessive in all the circumstances". Absent the ingredient of rape, the sentence of four years' imprisonment is greater than those imposed in comparable circumstances. Whilst it is correct to say that all forms of sexual misconduct involving children involve coercion in the form of force, abuse of power or status, or a form of overpowering of the will (see R v F (1998) 8 Tas R 88), the law retains a distinction between rape as defined historically and the form of misconduct referred to in American jurisdictions as statutory rape. The law recognises the incapacity of a child to give consent by the enactment of the Code, ss127(3) and 127A(3), whereby the consent of a person under the age of 17 is not relevant to the commission of the crime of indecent assault. Nevertheless, a conviction for an act of indecent assault is not regarded as akin to rape for the purpose of sentence. All acts of sexual predation are abhorrent, but some contain ingredients which require greater sanction.

27 In the circumstances of this case, the allegation of rape related to an incident which chronologically occurred on the fifth occasion and after four occasions of what can be described (with the proviso of the youth of the victim and the provisions of the Code, ss127(3) and 127A(3)) as "consensual" conduct. The evidence was given by the complainant in the following form during evidence-in-chief:

"Okay. And you were driving in this car until you got to Evercreech, were you? ... Yes.

Did anything happen there? ... He drove into an old track, an old gravel track.

Okay what was the country side like where you drive in? ... There was heaps of bush and trees.

Right and he drove into this gravel road. What happened? ... He turned in somewhere and he unzipped his trousers. And then he said 'Give him a suck'.

Right. And did anything come out of his trousers? ... Yes.

Now he said 'Give him a suck'. And did you reply to that? ... Yes.

And did you say anything or do anything? ... I said I didn't want to.

Okay. When you said you didn't want to, did he reply to that? ... Yes.

What did he say? ... He said 'Come on, darling, I will give you $5 if you do'.

Okay. And after that did he do anything? ... He said, oh, excuse me, I think I have mucked this up.

HIS HONOUR: Do you want to correct something, [the complainant]? ... Yes, thanks.

HIS HONOUR: If you want to correct something, just go back and tell us what was wrong ... We drived in and he undone his zip and pulled out his penis and he said 'Give him a suck'. And I said 'I don't want to' and he said 'Oh come on, I will give you five dollars if you -', he said, 'Oh come on darling, I will give you five dollars if you do'. And then I said, 'But I don't want to,' and he said, 'Don't talk to me like that', and he pushed down my head and made me suck on his penis.

How did he push your head down, [the complainant]? ... Well he pushed it, he grabbed my head and just pushed it down really hard.

And did you want him to force your head down? ... No.

Okay. And for how long did you suck his penis? ... Well it seemed like a long time for me.

Okay. Did white stuff come on that occasion? ... No.

So what happened? ... He just zipped up his fly and drove out.

And did he do anything else beside drive out? ... He gave me five dollars.

And did he say anything about the five dollars when he gave it to you? ... He said, 'Don't tell anyone what - how you got it'.

What did you do with the five dollars? ... I put it in my boot.

What did you do with the five dollars, did it stay in your boot? ... No.

What happened? ... On the way back from picking up the truck, we stopped at a shop and I bought two dim sims and a drink.

And where did he leave you? ... He left me outside Ruby Flat Road.

Did you, after that, go in a vehicle with him ever again? ... No.

Did you ever go and stay at his house again after that? ... No.

Do you remember one day you were in the kitchen of the house and something happened? ... Yes.

What was that? ... He called up on the UHF and I ran out of the room.

Did you hear him say anything before you ran out of the room? ... He said, 'Can [the complainant] come and stay at my house?'.

And a short time after that, did you talk to a police officer? ... Yes."

28 The particulars provided in relation to the fifth occasion stated:

"In a stationary car, a station wagon (going to meet that truck), at Evercreech -

6 The accused pushed [complainant's] head down and forced him to suck his penis, thereby committing the crime of rape or if not that the crime of sexual intercourse with a young person under the age of 17 years".

29 The learned trial judge gave proper and adequate directions to the jury in relation to the ingredients of rape and unlawful sexual intercourse. The jury was entitled to find the occurrence of the act as a component of the crime, contrary to the Code, s125A. It is not clear from the verdict whether the jury was satisfied beyond reasonable doubt that a rape, rather than sexual intercourse, had occurred. Whilst a sentencing judge is entitled to give effect to the verdict of a jury by making findings of fact not explicitly disclosed by the verdict, those findings must not be inconsistent with the verdict. In a case involving the use of the Code, s125A, special care must be taken in giving effect to the verdict. Whilst the Code, s125A, provides that rape may be one of the components of the crime of "maintaining a sexual relationship", the Director of Public Prosecutions, whose written authority is required before the commencement of such proceedings by virtue of s125A(7), ought be cautious in the use of power. Ordinarily, society regards rape as a more serious crime than that of maintaining a sexual relationship, and that is reflected in sentencing. The Code, s125A, is intended to avoid the problems of young people in recalling specific dates and circumstances of events, either distant or repressed in memory. That proper grant of power by Parliament ought not be used to obtain a conviction for what might prove to be a far more serious crime. There may be cases where all of the conduct comprising the crime under s125A amounts to rape, but in circumstances such as this, the component might not have a degree of seriousness greater than the whole.

30 In this case, the jury might have found an act of rape or, equally, one of unlawful sexual intercourse. The trial had been conducted on the basis that there were at least three occasions of sexual impropriety, rather than the rape of a 10 year old. Little attention was given to the implications of the particular provided.

31 The learned sentencing judge was entitled, on the evidence, to find as of fact that there had been non-consensual sex. The exercise of the sentencing power on the basis of that finding discloses the tension which exists between a crime legislatively constructed and those derived from the common law. That tension involves a number of competing propositions which include:

1 Parliament provided for a "continuing" crime in order to redress the problem, inherent with youthful victims of sexual predation, of inability to recall precise dates or specific occasions on which a charge could be framed (see Problems in Prosecuting Cases Involving Historical Child Sexual Abuse: The Victorian Experience, Flatman - Bagavic (1997) Deakin LR, vol41).

2 Fairness and confidence in the legal process require that a person be afforded sufficient particularity of the charge or charges brought against him or her (KBT v R (supra)).

3 Parliament attempted to accommodate competing factors by requiring identification of a minimum of three occurrences, while not limiting the prosecution to that number.

4 The method of resolution of those competing factors enables the reception of "general" evidence of sexual misconduct.

5 The verdict of a jury necessarily involves a finding of at least three of those occurrences, but is not necessarily limited to that number.

6 It is the responsibility of the sentencing judge to make findings, not inconsistent with that verdict, provided that he is satisfied of the relevant facts adverse to the accused beyond reasonable doubt (Olbrich v R (1999) 103 A Crim R 149, R v Morrison [1998] QCA 162; [1999] 1 Qd R 397).

7 A person ought not be punished for a more serious crime than that charged (R v De Simoni (1980 - [1981] HCA 31; 1981) 147 CLR 383).

8 The crime of maintaining a sexual relationship might attract a lesser sentence than comparable conduct which included an act or acts of rape.

32 Two examples can be given of the effect of these competing considerations. The first is that the verdict of the jury might reflect satisfaction only as to one period of the relationship or as to a limited number of occurrences, yet the sentence might reflect the whole of the charge or all of the particulars charged. In the circumstances, the jury might not have been satisfied beyond reasonable doubt that there had been an act of rape. The jury might have been content to find instead that there had been an act of unlawful sexual intercourse. The finding was not made manifest upon the pronouncement of the verdict. Yet, the learned sentencing judge was, consistent with his responsibility, entitled on the evidence to find that there had been an act of rape. The second difficulty arises from the principle of consistency in sentencing. In Bowerman v R A6/1996, the Court of Criminal Appeal, in resentencing a successful appellant, imposed a 12 month sentence on a man who had abused his step-daughter aged 15 at the relevant time. In Abel v R A94/1994, the Court of Criminal Appeal, differently constituted, dismissed an appeal against a three year sentence imposed on a step-father, where the length and seriousness of the sexual misconduct was greater than the present case. Society would regard a recent sentence imposed on Randell as being appropriate, yet the conduct in that case warranted greater sanction than that imposed in this case. An examination of sentences imposed for like crimes shows that only in the most serious cases were penalties greater than three years imposed. Yet there remains the finding of rape.

33 One method of resolution involves treating a finding of rape as a matter of aggravation in the determination of penalty. Another might be to request the jury to return particular findings in relation to the components alleged. There might be cases where all of the occurrences particularised were acts of rape and the question of penalty remains relatively simple. Particulars of different forms of misconduct require greater care.

34 The learned sentencing judge was entitled to find that the fifth occurrence had been an act of rape and was entitled to sentence accordingly. On that basis, it could not be said that the sentence was manifestly excessive. The conclusion gives rise to a sense of disquiet in the sense described by Sully J in his judgment in the New South Wales Court of Criminal Appeal in N v R (referred to in N v R [1994] HCA 63; (1994) 181 CLR 487 at 491). In this case, counsel for the appellant had not concentrated on the element of rape alleged in the particulars since the defence case was one of outright denial. The evidence permitted an argument based on "mistaken and reasonable" belief and at least enabled an argument to be advanced during the course of the sentencing hearing that the form of the particulars, claimed in the alternative, made it unfair to sentence on the basis of the more serious allegations. Had the particulars instead been comprised within a count in an indictment, they would have been bad for duplicity. Parliament, for good reason, has given prosecutors a potent weapon in dealing with acts of sexual abuse of children. Prosecutors have an obligation to use that statutory weapon with great caution and defence counsel a duty to consider the implications inherent in such a prosecution.

36 I have read the Reasons for Judgment prepared by Slicer J and agree with his reasons for dismissing the appeal.

37 The appellant appeals against his sentence of four years' imprisonment on the ground that it is manifestly excessive.

38 The sentencing of an accused convicted of the crime of maintaining a sexual relationship with a young person under the age of 17 years can present unusual difficulties. To be convicted, an accused must have been found guilty of committing an unlawful sexual act in relation to a young person on at least three occasions. The charge may involve allegations of unlawful sexual acts on more than three occasions. There may be alternative bases for the unlawfulness of each act which is the subject of the charge.

39 In the case under consideration, it is alleged that during a 13 month period, the accused committed unlawful sexual acts on five occasions. On four of the occasions, only one unlawful act is alleged to have occurred. On one occasion, two unlawful acts are alleged to have occurred, one being an indecent assault and the other being sexual intercourse with a young person under the age of 17 years. On another occasion, it is asserted that the unlawful act was rape, or if not rape, sexual intercourse with a young person under the age of 17 years.

40 The learned trial judge properly and correctly directed the jury on the elements of the particular crimes which covered the unlawful sexual acts the accused was alleged to have committed, including the crime of rape. The jury returned a general verdict of guilty of the crime of maintaining a sexual relationship with a young person under the age of 17 years.

41 That verdict provides no express guidance on whether the jury found the accused guilty of unlawful sexual acts on each of the occasions which are the subject of the charge or only three, and if the latter, which three. It also provides no express guidance on what the jury decided in relation to the unlawful sexual act which was alleged to be rape or, alternatively, an act of sexual intercourse with a young person under the age of 17 years.

42 In the course of the sentencing hearing, the learned trial judge commented that as to the facts he would sentence the accused on the basis that the jury had believed everything that the complainant had said in his evidence. In my view that was the correct approach for his Honour to take. Counsel for the accused's response to his Honour's comment was that he had no argument with that approach.

43 When pronouncing sentence, his Honour said the accused was being sentenced on the following factual basis:

"On five different days over a period of no more than a year he sexually assaulted the boy who was aged 9 years when it started and 10 when it finished. On the first occasion he played with the boy's penis and got the boy to masturbate him. On the second occasion he sucked the boy's penis and got the boy to do the same to him. On the third and fourth occasions he sucked the boy's penis. On the fifth occasion he raped the boy by forcing him to suck his penis. The violence used by the accused on that occasion involved forcing the boy's head down onto his penis and holding it there, the lad having shown that he did not want to do what the accused wanted."

44 The learned trial judge expressly sentenced the accused on the basis that one of the unlawful sexual acts upon which his conviction was founded was the rape which occurred on the fifth occasion. In my respectful view, his Honour was quite correct in sentencing the accused on this basis. His Honour was obliged to determine the factual basis for the sentence. In doing so, he was obliged to adopt a view of the facts which was consistent with the verdict. He was not entitled to proceed on any view of the facts necessarily negatived by the jury's verdict. Authorities in which these principles have been recognised in this jurisdiction include: Prokopiec v R [1982] Tas R 170, R v Gill A52/1989, Bresnehan v R [1992] TASSC 55; (1992) 1 Tas R 234, Parker v R A57/1994 and R v McKenzie [1999] TASSC 54.

45 In my opinion, the view of the facts which the learned trial judge took was the only view that was open to him. To convict the accused, the jury must have been satisfied beyond reasonable doubt that the evidence of the complainant was true. The complainant's evidence included evidence of the rape. To conclude otherwise than that the accused had raped the complainant as alleged would involve rejecting the evidence of the complainant. Had the learned trial judge taken that course, he would have been in error, as he would have adopted a view of the facts which was inconsistent with the verdict of the jury.

46 I have reviewed the sentences imposed by this Court for the crime of maintaining a sexual relationship with a young person under the age of 17 years, as well as sentences imposed for related sexual offences including rape. In my review of rape sentences, I have kept in mind that the rape which is an aspect of the crime which the accused has committed was not accompanied by significant force. My review has not persuaded me that the sentence imposed on the accused is manifestly excessive. The nine year old boy who is the complainant is almost 50 years younger than the accused. On five occasions in the course of a period of 13 months, the accused exploited the position of trust he held in relation to the complainant to sexually abuse him. The accused has shown no remorse. A sentence of four years' imprisonment was warranted.