Clark (a pseudonym) v The Queen [2015] VSCA 297

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The applicant was found guilty by the jury, empanelled on his trial, of four charges of committing an indecent act with his former partner's daughter, R, who was then under 16 years of age, during the period January 1977 to January 1981. He was also acquitted by the same jury of four other charges of indecent assault relating to R. After a plea hearing, the applicant was sentenced to a total effective term of three years' imprisonment, with a non-parole period of 18 months. The applicant seeks leave to appeal from his conviction on those charges.

2 The applicant was originally the subject of a 12 charge presentment, consisting of nine counts, relating to the complainant R, and three counts relating to R's younger sister, B. In January 2014, a judge of the County Court ordered the permanent stay of the 12 charge presentment. The DPP successfully appealed against that decision, but the Court of Appeal permanently stayed count 1 of that presentment.[1] In September 2014, the presentment was severed, so that the remaining charges, relating to each complainant, were the subject of a separate presentment and a separate trial.

3 The trial, relating to the charges that are the subject of this application, concluded on 24 November 2014 with the pronouncement of the jury's verdicts. There then followed three abortive trials relating to the second complainant B, including two trials in which the jury failed to reach its verdict. As a consequence, the DPP entered a notice of discontinuance of the presentment relating to the second complainant in April 2015.

4 The applicant was born in 1948. In 1971, he commenced a relationship with K, who was the mother of R and B. They together lived at various addresses in the ensuing years, until the relationship between K and the applicant ceased in October 1981. During their relationship, K and the applicant had two sons.

5 The first count on the presentment alleged indecent assault between 15 January 1976 and 14 January 1979. R gave evidence that on one occasion during that period, the applicant entered her bedroom at night and sexually assaulted her by digitally penetrating her. The applicant was acquitted of that charge by a unanimous verdict.

6 Counts 2 and 3 concerned an incident that was alleged to have occurred between 1 January 1977 and 31 December 1978. From time to time in the course of his employment the applicant was required to attend building sites. R gave evidence that on one occasion she travelled with the applicant to a house that was vacant. She said that the applicant took her to a dark area of the house, and while she was standing up against a wall, he pushed her legs apart and inserted his fingers into her vagina (count 2). R said that the applicant then put her hand on his penis over the top of his clothing (count 3). She said that on the drive home, the applicant threatened to kill her if she told her mother what had happened. The applicant was found guilty of both charges by a majority verdict.

7 Count 4 concerned an incident that the prosecution alleged occurred on an occasion between 1 January 1978 and 31 December 1978. R gave evidence that on that occasion, while the applicant was driving her home from basketball training, he reached over, put his hand into her pants, and digitally penetrated her. The applicant was acquitted of that count by a unanimous verdict.

8 Count 5 related to an incident that the prosecution alleged occurred between 15 January 1978 and 14 January 1980, at the office at which the applicant was then employed. R stated that on that occasion, at the applicant's direction, she sat on his knee, and the applicant digitally penetrated her. The applicant was acquitted of that count by a unanimous verdict.

9 In respect of count 6, the prosecution alleged that on an occasion between 15 January 1978 and 14 January 1980, the applicant sexually assaulted R in their home when K was at work in the evening. On that occasion, R stated that, at the request of the applicant, she sat on his knee in the lounge room. The applicant put his finger inside her vagina. As he did so, K came home early from work. R was able to see K approach the house through the venetian blinds in the lounge room. The applicant told R to go to bed. While she was in her bedroom she heard K ask the applicant 'What's going on?'. The applicant was found guilty of count 6 by a unanimous verdict.

10 Count 7 concerned an incident between 15 January 1980 and 14 January 1981, in which the applicant was alleged to have sexually assaulted R in the laundry of their home. At the time of that incident, R was about 14 years of age. On that occasion, she was in the laundry/bathroom area of the house. The applicant walked up behind her, and fondled her breasts. She turned around and yelled at him to stop. The applicant was found guilty of that charge by a unanimous verdict.

11 The final charge, count 8, concerned an occasion between 1 December 1981 and 14 January 1982, in which it was alleged that the applicant sexually assaulted R in their home. On that occasion, R stated that the applicant grabbed her hand, and put it on his penis. R yelled at the applicant, and told him that she was going to tell her mother. The applicant responded by laughing, saying 'you tell her and see what happens'. The applicant was acquitted of that count by a unanimous jury verdict.

12 R gave evidence that on the day of the conduct alleged in count 8, R told her mother that the applicant had sexually molested her. A few days later, K took her to the family doctor, and also to the police, to report the matter.

13 The complainant, R, gave evidence in relation to the incidents that were the subject of the eight charges, which we have summarised above.

14 K gave evidence setting out the history of her relationship with the applicant. In relation to the incident that was the subject of count 6, K recalled an occasion when she returned home unexpectedly early from her afternoon shift. She parked her motor vehicle in front of the house. As she went to go inside the house, she looked through the venetian blinds in the lounge room, and observed R sitting on the applicant's knee. K stated that she was shocked. When she entered the house, R was in her bedroom, and the applicant was in the bathroom washing his hands. K spoke to R, who was upset about something, but R did not say what was causing her distress. K thought that R said something relating to 'at school'. K then went into the bathroom, where she spoke to the applicant. He told her that R was upset about something at school.

15 K further gave evidence that R told her that the applicant had sexually molested her. K spoke to the applicant about the accusation, which he denied. On the following day, she had a further conversation with the applicant by the swing in the backyard. K asked the applicant to tell her what had happened, because 'we may be able to sort things out'. The applicant responded, 'Yes I touched (R) on the boobs a couple of times'. The applicant was crying. K asked him why he had touched R. He responded that R reminded him of K when she was younger.

16 K further stated that after R told her that she had been molested by the applicant, she took R to see the family doctor. R also went to the local police station. However, a police statement was not taken from either K or R at that time.

17 The final lay witness called by the prosecution was M, a branch manager of the company that employed the applicant at the time. M described the applicant's role as that of a sales consultant. M said that the manager was supposed to do visits to sites. However, he tended to delegate a lot of that work to the applicant or to M. As a result, the applicant did go off-site to do a number of tasks, including picking up plans, measuring up jobs, and the like. M said that the applicant would make a site visit once or twice per week. In cross-examination, it was put to him that if a company representative went on site, it was in order to meet someone there and have a discussion with them. M agreed with that proposition, but added '... but you could do your own private work on top of that ... if you were out, it wasn't assessed the hours that you were out'. M agreed with the proposition that he had never seen the applicant take family members to work.

18 The final witness for the prosecution was the informant, who gave evidence relating to the investigation.

19 The applicant called the family doctor to give evidence. He was unable to recall the names, or variation of names, of R, K and the applicant. He said that his records only dated as far back as 1984. His recollection was that, if he received an allegation of sexual abuse, he would refer the matter to the police.

20 The applicant also called a retired senior constable who had been stationed at the police station that R and K attended in 1981. She had no memory of R, or K, attending the police station at that time.

21 The applicant gave evidence setting out, in some detail, the various houses at which he, K and the children lived, and his employment, during the relevant period. He denied that any of the incidents, described by R, occurred. He said that he never took the children to any of the work sites. He also said that he only made site visits on very rare occasions. He never took children to any of the work sites. He said that during that period he was the coach of the local basketball team, of which R was a member. However, he always jogged to and from training, and R would travel to and from training on her bicycle. He denied that he ever took any children, including R, to the office when he worked there. He could not recall an occasion when K came home early and on which R was upset. He said that in 1981 he had a number of disagreements with R relating to the rules that K and he sought to implement concerning R's relationship with boys. On one occasion, after R had a heated discussion with K, R said to the applicant 'You have no right to dob me in, I'll get you for this'.

22 The applicant further stated that when K told him that R had alleged that he had been having sex with her, he strongly denied that allegation. The applicant stated that he reacted to the accusation in an angry manner, as a result of which relations between himself and K deteriorated. He denied that he made any admission to K that he had touched R, or that he cried when speaking to K about the allegations.

23 The applicant seeks leave to appeal against his conviction on the following grounds:

Ground 1 - The learned trial judge erred in permitting the prosecution to adduce evidence of tendency against the applicant, by failing to consider whether the probative value substantially outweighed its prejudicial effect.

Ground 2 - The learned trial judge erred in allowing the prosecution to adduce evidence:

(a) of propensity being that the applicant abused R regularly, when evidence of uncharged acts was excluded; and

(b) of R being blackmailed in relation to the uncharged acts where evidence of the blackmail was excluded;

upon putting to R of a motive to lie, being that she hated the applicant.

Ground 3 - The learned trial judge erred in failing to direct how the evidence that the applicant abused R regularly was to be used by the jury.

Ground 4 - The declaration that R was not allowed to tell the jury of the identity of who made a witness statement, at the same time she made her police statement, caused a miscarriage of justice.

Ground 5 - The learned trial judge erred in failing to discharge (the) jury upon the application of the applicant.

Ground 6 - An accumulation of errors.

24 Ground 1 relates to the decision by the judge to admit the evidence of K that, after R complained to her, she spoke to the applicant, and the applicant admitted that he touched R's breasts, and that he did so because R reminded him of K when she was younger. The essential point, raised by ground 1, is that the judge ruled that he was satisfied that the tendency evidence, constituted by that admission, could be adduced under s 97 of the Evidence Act 2008, without taking into consideration the requirement, under s 101, that the evidence was only admissible if its probative value substantially outweighed any prejudicial effect it may have had on the accused.

25 The judge did not provide a detailed ruling in respect of his decision to admit the evidence of K, that is now the subject of ground 1. His Honour was concerned with issues of delay, and accordingly gave a short ruling after hearing argument relating to the matter.

26 The argument, relating to the ruling, concerned the content of a tendency notice dated 20 October 2014 that had been served on the legal representatives of the applicant. That notice included the charged acts, threats which the applicant was alleged to have made to R in the course of those charged acts, the admission allegedly made by the applicant to K that he had touched R on the breasts, and three groups of unspecific uncharged acts that were alleged to have been committed by the applicant on R during the relevant period.

27 In the course of argument, the prosecutor refined the use of the evidence referred to in the tendency notice. In particular, he told the judge that the prosecution only sought to rely on the uncharged acts as 'context' evidence, and that the only 'tendency' evidence that the prosecution sought to rely on was the admission made by the applicant to K, to which we have referred. The prosecutor submitted that that evidence was admissible as demonstrating that the applicant had a 'sexual interest in the complainant'.

28 In response, counsel for the applicant submitted that the evidence, of the alleged admission made to K, should not be admitted. Counsel stated that the applicant denied making that admission, so that it would be one witness's word against another. She contended that it would be very difficult in those circumstances to test the evidence of K, except in cross-examination, which was limited. She submitted that the probative value of the alleged admission was outweighed by its prejudicial potential, which she described as 'huge'.

29 Counsel for the applicant at trial submitted that the evidence of the uncharged acts should be excluded, because there was a risk that they would be used as tendency evidence, and accordingly they should only be admitted if they complied with s 101 of the Evidence Act. She also adopted the observation made by the judge, in the course of argument, that the uncharged acts lack specificity which affected their probative value.

30 At the conclusion of the argument, the judge then ruled as follows:

I'm going to exclude the evidence of the uncharged acts pursuant to section 137. The difficulty here is that there is a lack of specificity, it is vague, there is a real danger of unfair prejudice ... The uncharged acts, I am excluding them, and I'm excluding the blackmail which was related to the uncharged act. I'm going to allow you (the prosecution) to lead the evidence of the threats, which is inextricably interwoven with a number of the particular charges. And dealing also with the admission ... I indicate I'm going to allow you to lead evidence of the admission, I'm satisfied it's got significant probative value for reasons that we covered in submissions yesterday. I've had regard to the submissions made by defence concerning danger of unfair prejudice, but I'm not satisfied that the danger of unfair prejudice outweighs the probative value of those admissions. So that goes in, the uncharged acts go out. The charged acts, we can all focus on those. We'll focus on the threats, which are part of the charged acts. And also in terms of the admission, given what I consider to be arguably high probative value, I'm satisfied that it meets the requirements under section 97 in terms of it be (sic) tendency evidence. So you can use it for those purposes.

31 As we stated, the complaint made about the ruling is that the judge omitted, specifically, to find, in terms of s 101 of the Evidence Act, that the probative value of the particular evidence, constituted by the admission to K, substantially outweighed the prejudicial effect of that evidence. It was further submitted that, on a correct application of s 97 and s 101 of the Act, the evidence was not admissible, as the effluxion of time since the making of the alleged oral admission by the applicant to K had diminished its probative value, and had resulted in substantial prejudice to the applicant's right to a fair trial.

32 It was submitted that the evidence had those two effects, principally because the applicant was significantly disadvantaged in contesting that evidence before the jury. In particular, the records of the family doctor, and of the police station, were no longer available, as they had been destroyed. Thus, the applicant did not have available any previous statement that might have been made by K to the police, or to the doctor, which might have been different to, or inconsistent with, the account that she gave in evidence. It was submitted therefore that the issue, raised by K's evidence, involved a contest of oath versus oath, in a context in which counsel for the applicant had limited scope to test the evidence given by K as to the alleged admission made to her by the applicant.

33 In response, counsel for the respondent submitted that the judge did not err in his ruling relating to the admissibility of the admission made to K. In the course of lengthy oral submissions, s 101 of the Evidence Act was twice referred to by counsel for the applicant. The judge's ruling was given in a shorthand manner in order to achieve expedition in a case in which there had been a large amount of delay, and in which the applicant suffered from a medical condition. It was submitted that the judge's ruling, properly construed in that context, did comply with the requirements of s 101.

34 In addition, it was submitted that there was no unfair prejudice to the applicant, in any event, by reason of the admission of K's evidence as to what she said that the applicant told her. The applicant gave evidence denying making the admission to K. Both witnesses were cross-examined on the topic. The judge gave appropriate directions concerning the manner in which the jury might use the evidence, and as to how the evidence was not to be used by the jury. Further, the judge gave a direction to the jury as to the prejudice sustained by the applicant in defending the allegations made against him, by reason of the effluxion of time. In those circumstances, it was submitted that the decision by the judge was correct, and that it complied properly with the requirements of s 97 and s 101 of the Evidence Act.

35 It is common ground between the parties that, as the evidence of K was directed to demonstrate that the applicant had a sexual interest in R, it thus constituted tendency evidence under s 97 of the Evidence Act.[2] Thus, in order that it be admissible, it was necessary, first, that the evidence had significant probative value pursuant to s 97(1)(b) of the Act, and, secondly, that its probative value substantially outweighed any prejudicial effect it may have had on the applicant pursuant to s 101(2) of the Act.

36 Ground 1 of the application, as argued in court, raised two principal issues. The first issue is whether the judge, in his ruling, did - as required by s 101(2) of the Evidence Act - find that the probative value of the evidence substantially outweighed its prejudicial effect on the accused. The second issue is whether the judge should have concluded that the probative value of the evidence was insufficient to outweigh its prejudicial effect.

37 In respect of the first issue, it is clear, both from the ruling made by the judge, and from the argument that preceded that ruling, that the judge was conscious that the evidence, as to the admission made to K, was sought to be adduced as tendency evidence in the manner contended for on behalf of the prosecution. The use of the phrase 'significant probative value' by the judge demonstrates that his Honour directed his attention to the first prerequisite to admission of that evidence under s 97 of the Evidence Act. The judge did not express his ruling in terms of the formula specified in s 101(2). However, it must be understood that the ruling was given by the judge in summary form immediately after the conclusion of reasonably lengthy argument, in the course of which the applicant's counsel had twice referred to s 101 of the Act. A number of exchanges between the judge and counsel demonstrated that the judge well understood the task that he was to undertake, in order to rule upon the admissibility of the tendency evidence relied on by the prosecution.

38 The ruling by the judge was made in the exigencies of the trial that was about to commence. His Honour had expressed concern as to the effect of delay in the trial, particularly in light of the applicant's state of health. In construing the ruling, it is important to bear in mind the context and circumstances in which it was delivered. Excessive concentration on the literal meaning of the language employed by a judge, in giving such an ex tempore ruling, can distract attention from the actual import and meaning of the ruling in the context in which it was given. Taking those matters into account, and the circumstances in which the ruling was made, we are satisfied that the judge did correctly direct his mind to, and apply, the requirements of both s 97 and s 101(2) of the Evidence Act, in ruling that the evidence of K, as to the admission made to her by R, was admissible.

39 The second issue is whether the judge correctly determined that the evidence of K was admissible under s 97 and s 101 of the Evidence Act. In oral argument, it was contended on behalf of the applicant that, properly analysed, the evidence of K, while relevant, did not have significant probative value for the purposes of s 97 of the Act. That submission was made on two bases.

40 First, it was contended before the trial judge, and in this application, that the evidence of K, as to the admission, could only relate to count 7, which was the only charge in which it was alleged that the applicant had touched R's breasts. However, the admission made by the applicant to K was of a broader content, as, on the version of the conversation attested to by K, the applicant expressed a sexual interest in R, because she reminded the applicant of K when the latter was younger. That evidence was relevant to, and admissible, in respect of each of the charges on the indictment. In addition, it is important to understand the context of the admission that K says that the applicant made to her. On the previous day, the applicant had heatedly denied the allegation made by R to K that he had sexually molested R. In that context, the evidence of K, as to her discussions with the applicant after R made the complaint to her, would have been incomplete, and unbalanced, if the prosecution had not been permitted to adduce evidence of the admission subsequently made by the applicant to K on the next day.

41 Secondly, it was submitted on behalf of the applicant that the probative value of the evidence of K was diminished by the fact that the applicant was at a forensic disadvantage in contesting that evidence before the jury. For reasons that we shall set out when discussing the issue of prejudice, we are not persuaded that the applicant was, in fact, at such a forensic disadvantage as contended for by counsel. However, assuming that that premise of the applicant's argument could be made out, nevertheless it would only have a limited effect on an assessment of the probative value of the evidence.

42 In Dupas v The Queen (No 3),[3] this Court held that, in assessing the probative value of the evidence as required under ss 97, 98 and 101 of the Evidence Act, it is relevant for a judge to take into account the quality of that evidence, including whether the evidence is disputed, or whether it is possible that it was concocted.[4] In that respect, this Court departed from the approach taken by the Court of Appeal in New South Wales as established in R v Shamouil.[5]

43 In the present case, the judge gave careful directions to the jury as to the potential unreliability of the evidence of K because of the effluxion of time, and he also gave to the jury a general direction as to the forensic disadvantage suffered by the applicant in contesting the evidence of the prosecution based on allegations of matters that occurred between 1976 and 1982. Certainly those directions, and those considerations, were relevant, and indeed important, to the consideration and assessment of the jury of the evidence put before it, and, particularly in respect of ground 1, the evidence of K. Nevertheless, we do not consider that that direction, and those considerations, sufficiently detracted from the probative force of K's evidence to the extent to deprive it of the significant probative value that it otherwise had.

44 The evidence of K, as to the admission made to her by the applicant, formed part of the evidence of K as to the applicant's response when she raised with him the complaint that had been made to her by R, that the applicant had sexually molested her. As such, it was of substantial significance. In addition, the response made by the applicant to K constituted an admission by him that he had a sexual interest in R, which was the essence of the evidence given by R in respect of the eight charges. In that way, the evidence was of direct relevance in the trial. We do not consider that the matters, that the jury was required to take into account, as to the disadvantage to the applicant arising from the effluxion from time, would have detracted sufficiently from the cogency of that evidence to deprive it of its otherwise significant probative value.

45 We turn, then, to the applicant's submissions concerning the prejudicial effect of the evidence of K.

46 The prejudice, referred to in s 101 of the Act, and in s 137 of the Act, is directed, primarily, to the risk that a jury might misuse evidence in a manner that was unfair to the applicant.[6] Where evidence of the sexual interest of an accused in a complainant (sometimes referred to as 'guilty passion') is admitted, such a risk is well understood and commonplace. It is the experience of trial judges that that risk can be sufficiently allayed by an appropriate direction to the jury. Such a direction was given, in this case, by the judge to the jury in clear and concise terms. No argument has been advanced on this application as to why the judge should have apprehended that such a direction would have not been adequate to offset the risk of prejudice to the applicant deriving from the admission of the evidence of K.

47 The principal basis, upon which it was contended that the evidence of K was prejudicial to the fair trial of the applicant, was the proposition, to which we have already referred, namely, that the applicant was significantly disadvantaged in contesting that evidence, because of the effluxion of time. However, that proposition was not able to be sustained on a proper analysis of the evidence. A perusal of the cross-examination by trial counsel of K reveals that counsel had a number of bases upon which to contest, and put in issue, the evidence of K generally, and also as to the admission that she said the applicant made to her.

48 Without canvassing the whole of the matters put to K in cross-examination, they included that she was in fact the instigator and driving force of the complaint made to the police, on behalf of R, in 2008, which led to the prosecution of the applicant. It was put to K that she had a motive to make that complaint, namely, that she had unresolved resentment towards the applicant because, after an acrimonious separation from her, the applicant had successfully moved on in his life, whereas she had not done so. It was also pointed out that when R and K approached the police in 2008, K, in her first statement, did not refer to the admission that she alleged the applicant made to her. It was only in a subsequent, second statement, that she told the police about that matter. In addition, it was pointed out that after the admission was allegedly made to K by the applicant, K had acted in a manner that was inconsistent with the applicant having admitted sexually molesting her daughter. In particular, although R went to reside, for a short time, with another family, K left the applicant at home on his own with the younger three children. Further, although the applicant and K spoke to the police and the family doctor in 1981, the matter did not then proceed further. If, at that time, K had told the police of the admission allegedly made to her by the applicant, it is unlikely that the police would not have pursued the matter by further investigation.

49 All of those issues, and other issues, were well exposed in the course of cross-examination of K by the applicant's counsel at trial. Taking those matters into account, we do not consider that the applicant was, relevantly, at a forensic disadvantage in contesting the evidence given by K as to the admission. Indeed, the effluxion of time, if anything, worked in favour of the applicant, as it raised an issue as to the quality of K's memory, as to that matter, more than 30 years later.

50 In addition, the judge gave two sets of directions, which were relevant to the evidence of K, and which were more than sufficient to offset any residual prejudice suffered by the applicant from the eliciting of that evidence. The judge directed the jury that, in order to use the evidence of K as an admission against the applicant, it must be satisfied beyond reasonable doubt, first, that the applicant made the admission, and, secondly, that it was a truthful admission.[7] In that context, the judge directed the jury that it needed to exercise caution when considering K's evidence as to the admission. It was pointed out that the experience of the law was that evidence of admissions may be unreliable, particularly where that evidence is given some 27 years after the event. It was pointed out that K may not have accurately recalled or repeated the admission, and she may have changed its meaning. In addition, it was pointed out that K may have had reasons for giving untruthful evidence of the admission. The judge directed the jury that, as a matter of law, it must take that potential unreliability into account when considering K's evidence.

51 Later, in his charge, the judge also gave the jury thorough and clear directions as to the disadvantages suffered by the applicant, in defending the charges, due to the delay in the prosecution of them. In the course of that direction, he referred to the fact that the records of the family doctor and of the police, as to their attendance on K and R in 1981, were no longer in existence. He reminded the jury that one of the policemen was now deceased, that the witnesses had problems associated with a lack of memory due to lapse of time, and that documents were now missing.

52 Those directions were more than sufficient to offset any residual prejudice that may have been occasioned to the applicant by reason of the evidence of K as to the admission that she said that the applicant made to him. In those circumstances, the judge was correct in concluding that the significant probative value of the evidence substantially outweighed any prejudicial effect of it.

53 For those reasons, ground 1 of the application is not made out.

54 Ground 2 of the application is directed to evidence given by R in re-examination in response to questions put to her, in cross-examination, that she had a motive to lie, namely, that she hated the applicant. The point raised by ground 2 is that, in responding to that proposition in re-examination, R gave evidence of uncharged acts, and of being 'blackmailed' in relation to those uncharged acts, in circumstances where that evidence had already been excluded by the ruling given by the judge, to which we have referred.

55 At the commencement of her cross-examination, R accepted that in her teenage years, she had become rebellious, and she started to fight with the applicant. She agreed that she had said on previous occasions that she hated the applicant. She accepted the proposition that the applicant was the disciplinarian of the family and that he was very strict. At a later stage in the cross-examination, she was questioned about a suggestion by her then boyfriend that they have a weekend away together. In that context, counsel put to her that she was becoming very frustrated with the limitations put on her by the applicant and her mother. She was asked if she accepted that proposition, to which she responded 'partly yes'. When she was then asked whether she was becoming frustrated with the limitations put on her by the applicant, she responded 'not the limitations, no'.

56 At the conclusion of the cross-examination of R, in the absence of the jury, the prosecutor referred to the evidence given by R, in which she agreed that she hated the applicant. The prosecutor was concerned that if he asked R why she hated the applicant, R might refer to the uncharged acts that had already been ruled inadmissible. The prosecutor also referred to the fact that, when R was asked if she was getting frustrated with the limitations put on her by the applicant, she responded 'not the limitations'. The prosecutor was concerned that re-examination, concerning the cause of R's frustration, might raise the subject of the allegation by R that the applicant was blackmailing her in relation to the uncharged acts.

57 As a result of those concerns, the judge held a voir dire in which R was questioned about those matters. When asked by the prosecutor why she hated the applicant, R cautiously responded that she was not sure whether she was allowed to state the reason. She was told to speak freely, and she said:

[The applicant] was - when he was sexually abusing me he would say to me that if he - if I let him sexually abuse me that I would have more freedom than I was allowed to go out with friends, that I was allowed to go to places.

58 The following passage of re-examination then occurred:

My question is that why you hated him? .... Yes.

Is that the main reason or one of the reasons or what? ... One of the reasons and because he stole my childhood.

In what way? ... Sexually abusing me for years.

59 On the voir dire, the prosecutor then referred to the cross-examination when R was asked whether she was being frustrated with the limitations the applicant was putting on her, and she said 'not the limitations'. The following passage of evidence followed:

First of all, what did you mean by that? ... The sexual happenings that were going on.

...

What do you mean by that? What are you referring to? ... I felt disgusting. I was being abused.

What was the reason that you eventually told him off and then reported it to your mother? ... I felt like I was strong enough to face up to my mother and tell her what had been going on for years and I just thought I had the strength then and I was old enough to maybe live on my own if things didn't go my way.

When you said that you weren't frustrated with the limitations put on you, you were made upset by something else? ... Yes.

What was that just to make .... ? ... The sexual abuse.

60 At the completion of R's evidence on the voir dire, counsel for the applicant expressed concern that the responses given by R would lead the jury to consider that there was more sexual abuse by the applicant of R than that which was the subject of the charges. The judge disagreed with that proposition. He stated that the manner in which the answers were expressed did not contain any reference to the uncharged acts. Accordingly, he allowed the re-examination to proceed. The judge told R that she would be entitled to answer the questions as to reasons for her hating the applicant, and the question relating to the limitations, that would be put to her in re-examination, but that she should observe the limitations which, apparently, the prosecutor had already instructed her about before she gave her evidence.

61 When the jury returned, the prosecutor asked R, in re-examination, questions about other matters. She was then asked by the prosecutor what was the reason that she hated the applicant. R responded:

Because he was sexually abusing me. He was blackmailing me to perform sexual acts for him so that I could have some freedom, so I could see my friends.

62 The prosecutor then put to R the passage of cross-examination in which she said that the cause of her frustration with the applicant was not the limitations on her freedom that had been placed on her by her parents. She was asked what was it that upset or frustrated her. To that question R responded as follows:

The way that my stepfather was treating me, the way that he stole my childhood. He was abusing me regularly on - sexually abusing me.

63 At the conclusion of the re-examination of R, counsel for the applicant expressed concern that the answers given by R before the jury were different to the answers that she gave on the voir dire. In particular, counsel referred to the use by R of the word 'blackmail'. Counsel also stated that R had referred to uncharged acts. She said that she needed to get some instructions from her client in relation to an application to discharge the jury in relation to the two questions that were put to R, and the answers given by her, and to which we have referred.

64 Accordingly, the judge stood the matter down. After a short adjournment, the judge asked counsel for the applicant whether she wished to make any application, to which she replied that she did not. Counsel did not make any application for discharge of the jury on the basis of the evidence given by R in re-examination during the remainder of the trial.

65 On this application, it was submitted on behalf of the applicant that the evidence, so given by R in re-examination, introduced evidence that was prejudicial to the applicant, and which had already been excluded by the earlier ruling made by the judge. It was submitted that the judge erred in ruling, at the conclusion of R's cross-examination, that the evidence given on the voir dire did not involve evidence as to uncharged acts, that the evidence as to the 'blackmail' was admissible, and that its probative value outweighed its prejudicial effect.

66 It was further submitted that the evidence, given in re-examination by R, had a clear potential to be misused by the jury. It added to the effect of the evidence given by K as to the applicant's sexual interest in R, in a form that could not be rebutted. In particular, it was submitted that the directions, given by the judge to the jury, concerning the evidence relating to the applicant's sexual interest in R, magnified the difficulty caused by the evidence given in re-examination, because it referred to the prosecution's allegation that 'the accused has demonstrated a pattern of behaviour that involves sexual acts with the complainant'. In that context, it was submitted that the failure of defence counsel to seek a discharge of the jury was not significant.

67 In response, it was submitted that the judge did not err by permitting the prosecution to adduce evidence from R in re-examination. The prosecution did not seek to elicit evidence as to the uncharged acts. It was for that purpose that the prosecutor raised the issue with the trial judge, and a voir dire was conducted to ensure that R did not refer to them in the evidence that she gave before the jury. It was submitted that the judge was correct in finding that the answers given by R, in the course of the voir dire, did not refer to the uncharged acts. In particular, that evidence, and the evidence ultimately given by R in re-examination, would have been understood by the jury to relate to the eight counts which had been the subject of evidence before the jury. It was submitted that there was no risk that the evidence would be understood by the jury to have referred to other uncharged acts, or to have added, in an impermissible manner, to the evidence as to sexual interest given by K.

68 In addition, it was pointed out that the failure of defence counsel to seek a discharge of the jury was significant. That consideration should be accorded considerable weight, as defence counsel had the opportunity to consider the evidence, as it was given, in the atmosphere and context of the trial as it was occurring before the jury.

69 In considering ground 2, it must be borne in mind, first, that the evidence given by R in re-examination, that is the subject of this ground, was relevant, and was directed to matters put by the applicant's counsel in cross-examination to R. It was not contended, either at trial, or in this application, that the matters that were the subject of the re-examination were not relevant, and had not been raised squarely by the cross-examination of R. Subject to any issues of unfair prejudice to the applicant, the prosecution was entitled, in re-examination, to clarify the answers given by R, in cross-examination, that she hated the applicant, and also her response that it was not particularly the limitations imposed by the applicant that were the cause of her frustration with the applicant and her mother at the time. The answers given by R, to those questions in re-examination, were responsive to the questions that were legitimately asked of R in re-examination relating to those topics.

70 The issue raised by ground 2 is that the answers given by R, both in the voir dire, and then in re-examination, would have led the jury to understand that R was referring to other acts of sexual molestation of her by the applicant, which had not been the subject of evidence or any given in the trial. The question on this application is whether the jury might have understood the evidence in that way, and, if so, whether as a result the applicant was unfairly prejudiced in his trial.

71 In our view, the evidence given by R in the voir dire would not have been understood by a jury to have referred to other uncharged acts, than those referred to by K in the evidence given before the jury. The evidence given on the voir dire by R, that the applicant had been sexually abusing her for years, was consistent with the evidence that she gave before the jury. That evidence related to seven incidents of sexual abuse by the applicant of R over a four year period. It is not evident why a jury would have understood the answers given by R, on the voir dire, to have referred to other incidents of sexual abuse. For those reasons, the judge was correct in ruling that the prosecution ought to be permitted to re-examine R on the two matters, which the prosecutor had foreshadowed putting to her in re-examination.

72 Nor do we consider that there was a realistic risk that the jury, acting reasonably, would have construed the evidence given before it by R, in re-examination, to have gone beyond a reference to the evidence given by R as to the seven incidents that were the subject of the charges before the jury. It is correct, as counsel for the applicant points out, that when R was asked before the jury as to whether it was the limitations imposed by the applicant that frustrated her, she responded that it was because of the way the applicant had stolen her childhood, in that he had been '... abusing me regularly ... sexually abusing me'. However, it must be remembered, as we stated, that R had given evidence before the jury of seven incidents (constituting the eight charges). Certainly, regrettably, in the vast array of cases of this type that come before the courts, evidence is commonly given by complainants of sexual offences committed against them by an accused with significantly greater frequency than that alleged in this case. However, the experience of judges, in this regard, should not colour or obscure the likely meaning attached by the jury to R's evidence, in re-examination, that the applicant 'regularly' abused her. We would not expect a jury to consider that seven sexual assaults, by a step-father on his step-daughter, over a four year period did not constitute 'regular' abuse of her by him. Accordingly, we do not consider that there is a realistic risk that the jury would have understood the adverb 'regularly' to be other than a reference by R to the abuse about which she had already given evidence.

73 In the voir dire, R also stated that one of the reasons she hated the applicant was because, when he was abusing her, he told her she would have more freedom to go out with her friends if she complied with him. In re-examination before the jury, when that topic was raised by the prosecutor, she gave a similar answer to the question why she hated the applicant, namely, that the applicant was 'blackmailing' her to perform sexual acts for him so she could have more freedom. We do not accept the submission made on behalf of the applicant that, in some way, the jury would have understood that part of the evidence given by R in re-examination to have referred to other acts of sexual molestation by the applicant of R which had not already been the subject of evidence. Rather, in the context of the trial, and the evidence already given by R, the jury would have understood that answer, given by R, to have related to the sexual acts referred to by her and by K in their evidence.

74 In this connection, it is significant that defence counsel did not make an application for the discharge of the jury at the conclusion of the re-examination of R or at all. It is clear that counsel for the applicant was alert to the issue, and indeed she specifically sought instructions from her client as to that matter on the completion of R's re-examination. The decision, not to seek a discharge of the jury, is a matter of substantial weight. That decision was made by defence counsel, in consultation with the applicant, based on an assessment by counsel of the impact of the answers given by R in re-examination in the context and atmosphere of the trial that was then on foot before the jury. It would be expected that if counsel, after discussing the matter with the applicant, had apprehended that there was a real risk that the applicant had been deprived of a fair trial because of the answers given by R in re-examination, then counsel would have applied for a discharge of the jury. The fact that counsel did not do so, reinforces our conclusion that the answers given by R did not occasion unfair prejudice to the applicant in the trial of the case against him. In that respect, the observations of this Court in R v Strawhorn are pertinent:

The view adopted by counsel at the trial [to not seek a discharge] cannot, of course, be determinative of the question whether a miscarriage of justice may have occurred and deprived an applicant of the opportunity to argue that a fair trial has not been had. However the assessment made at the time and in the environment of the trial by those engaged in the proceeding on behalf of the person who might be adversely affected will in the ordinary course of events be attributed considerable weight when considering the possibility that the trial may have miscarried.[8]

75 For those reasons, the applicant has not made out ground 2.

76 In support of ground 3, counsel for the applicant submitted that the judge was obliged to direct the jury how the evidence, so adduced in re-examination of R, could be used, and how it was not to be used. It was submitted that the sole relevance of the evidence was to explain R's hatred of the applicant, and accordingly the jury should have been directed that it could not be used for a tendency purpose. Such a direction was necessary to avoid a substantial miscarriage of justice.

77 In response, it was submitted that the evidence, given by R in re-examination, was of very limited nature and scope. It was not necessary to give the jury a direction in relation to it in order to avoid a miscarriage of justice. Defence counsel at trial did not request such a direction. If there was a perceived risk that the evidence might be used impermissibly for a tendency purpose, then a direction that it could not be used for that purpose would have been requested by defence counsel. However, no such risk was identified.

78 As we have stated, we are not persuaded that there was a realistic risk that the jury would have construed the evidence given by R, in re-examination, to have referred to any uncharged acts, rather than to the evidence given by R as to the seven incidents which were the basis of the charges before the jury. For that reason alone, we do not consider it was necessary for the judge to have given the direction, now contended for, to the jury.

79 In addition, insofar as there was any risk that the jury might have construed the evidence, so given by R, to have suggested that there were other uncharged acts of sexual molestation by the applicant of R, the direction now contended for would, in all probability, have had an adverse effect, by promoting such a possibility in the minds of the jury. It may well be that it was for that reason that trial counsel, in the atmosphere and context of the trial, made a forensic decision not to seek such a direction. The evidence given by R, as to that matter, was in short compass. The jury would have understood it to have been directed to the purpose for which the question, relating to it, was asked, namely to explain why R said that she hated the applicant. We do not consider that the direction, now contended for, was required to be given by the trial judge.

80 For those reasons we do not accept that the judge erred in not directing the jury in the manner now contended for in respect of ground 3.

81 Ground 4 concerns a short piece of evidence given by R in the course of cross-examination by defence counsel as to the circumstances in which she made her statement to the police in March 2008.

82 During cross-examination, R agreed that she made the statement over a period of three days. Counsel asked her whether she took the draft of the statement home between those days, and R responded that she could not 'really say' when she read it.

83 There followed the following passage of evidence:

You can't say when you read it? ... I read it. I gave my statement and then someone else was giving a statement and I read my at the same time.

Who was that someone else? ... I'm not allowed to say.

There then occurred a short exchange between defence counsel and the judge. Defence counsel then returned to the questions that she had been asking R. The following passage of evidence then occurred:

You basically had a couple of days to work on the first statement that you provided to police? ... I gave the statement and then I sat outside and read it while someone else was in giving a statement.

You do accept that you've basically worked on this statement for at least two days? ... Yes.

84 The cross-examination of R was completed a short time later. The jury then left the court, while the prosecutor raised with the judge the issue, which we have already discussed, relating to the questions that might be asked of R in response to her evidence that she hated the applicant. In the course of that discussion, defence counsel raised with the judge that she was concerned that the jury would infer that the reference, by R, to another person whose name she was not allowed to mention, in fact referred to R's sister, B. Counsel stated that she was concerned that the jury would be suspicious that, based on those two references, something had happened to B and B had made a statement. The judge responded that that impression, of R's evidence, was not 'leaping out' to him from the evidence. Defence counsel stated that she needed to check the transcript. The judge invited her to do so, and told defence counsel that she might raise the matter again if she was still concerned about it. Notwithstanding that invitation, defence counsel did not, subsequently, raise the matter with the judge, nor seek any direction in relation to it.

85 It is now contended that the jury would have understood R's comment, that she 'was not allowed to say' the name of the other person, was a reference to her sister B. The jury was informed that R lived with B, who was three years younger than her, and that R shared a bedroom with B, who was present in the room on the occasion of the incident alleged in count 1.

86 The jury, of course, did not know of the allegations made by B against the applicant. Thus, there was no basis upon which the jury might have suspected, or understood, that the reference by R to the other person was a reference to B, or, if so, that it was a reference to allegations made by B herself against the applicant. In those circumstances, to say the least, it is most unlikely that the jury would have drawn any adverse inference or conclusion against the applicant arising from that passage of the cross-examination of R. Once again, we are reinforced in that conclusion by the fact that defence counsel, having given the matter consideration, did not seek any direction from the jury in relation to that passage of the evidence.

87 After the jury had deliberated for approximately four days, counsel for the applicant made an application to the judge to discharge the jury, on the basis that information, that had been accessed by counsel, on the previous evening, would have been relevant to the cross-examination by counsel of the witness M.

88 Apparently, M had not been referred to in the written opening provided by the prosecution. He was not called as a witness at the committal. A statement prepared by him was provided to the defence, and he gave evidence on a voir dire. In the course of the voir dire, M stated, in response to questions by defence counsel, that he knew nothing about the case, and that he did not know R, K or any member of the applicant's family. Based on that evidence given on the voir dire, counsel did not pursue the issue of bias when cross-examining M. Before the jury, M, in what was contended to be a non-responsive answer, stated that employees who made site visits (including the applicant) could do their own private work while undertaking a site visit, and could meet someone without that being booked or logged.

89 Subsequently, during the period in which the jury was deliberating, counsel accessed the following information on the internet, which was put before the judge. In substance, that information indicated that M's wife and daughter were friendly with R and B, that M's daughter was also friendly with R's daughter, and that M's wife and R each had entries on their Facebook pages reflecting that mutual friendship. In addition, the information disclosed that M's wife had worked with B at the same school for two years, and that M's photograph and a photograph of R and B were on the same page of M's wife's Facebook page.

90 Based on that material, application was made to the judge to discharge the jury on the basis that M, in the voir dire, gave false evidence when he stated that he did not know what the case was about. Further it was submitted that it should be inferred that M had in fact strengthened his evidence, against the applicant, in order to damage the defence case.

91 In a short ruling, the judge refused the application. The judge was not satisfied that there was a high degree of necessity for the jury to be discharged. His Honour did not accept the defence submission that M must have known what the case was about and that he had given false evidence. The judge agreed with the prosecution submission that the defence was drawing a 'very long bow', from the Facebook information, to infer that M must have known what the case was about and that he had given biased, distorted and false evidence.

92 It was submitted, on this application, that M was an important witness for the prosecution, in that he provided independent support for the evidence of R in relation to counts 2 and 3, and, in that way, he reinforced the overall credibility of R's evidence. The applicant was convicted on the two counts involving M, and the evidence on those charges was, thus, cross-admissible as tendency evidence in respect of the other charges. Thus, it was submitted that, in light of the information now available in respect of M, there was a miscarriage of justice, as the defence had not been given a proper opportunity to explore that information and to pursue it with M in cross-examination.

93 None of the matters, relied on by the applicant, and summarised above, provide any appropriate foundation for an inference that M knew, or was friendly with, any member of R's family. The fact that M's wife worked with R's sister, that R was friendly with M's daughter, and that his daughter attended the trial, do not collectively go beyond giving rise to a degree of speculation as to whether M knew, or might have known, R, or a member of her family. Indeed, in the course of oral submissions, counsel for the applicant, at one stage, stated that the information was a basis upon which M's wife, and other members of his family, might be subpoenaed to give evidence in a voir dire, in order to further investigate that particular issue.

94 Thus, the judge correctly considered that the applicant's counsel was 'drawing a long bow' in seeking to use the information, that had come to the attention of counsel, to establish that M knew R or members of her family, and was therefore biased in the evidence that he gave before the jury. Indeed, as counsel for the respondent pointed out, some of the evidence given by M was favourable to the defence, particularly his evidence that he had never seen the applicant take any members of his family to work. The material relied on by the applicant, in support of ground 5, falls well short of demonstrating that there was a high degree of necessity for the discharge of the jury.[9]

95 In those circumstances, there is no substance to the point raised by ground 5, and we are satisfied that no miscarriage of justice has been occasioned as a result of the unavailability of the information, relied on in support of that ground, during the trial.

97 Ground 6 is that there was a miscarriage of justice in the trial as a result of the accumulation of errors alleged in grounds 1 to 5.[10] However, for the foregoing reasons, the applicant has not made out any of the errors alleged in grounds 1 to 5. It follows that ground 6 fails.

98 For the reasons stated, the applicant has not made out any of the grounds relied on in the application for leave to appeal against his conviction. Accordingly, the application for leave to appeal against conviction should be refused.

[1] R v FJL (2014) 41 VR 572.

[2] Gentry (a pseudonym) v DPP [2014] VSCA 211, [28] (Redlich JA); JLS v The Queen (2010) 204 A Crim R 179, 190 [30]; PCR v The Queen (2013) 235 A Crim R 302, 307 [37]; Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168, 188 [64] (Giles JA).

[3] [2012] VSCA 328; (2012) 40 VR 182.

[5] [2006] NSWCCA 112; (2006) 66 NSWLR 228.

[6] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91] (McHugh J); R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, 239 [72] (Spigelman CJ, Simpson and Adams JJ).

[7] Compare R v Burns [1975] HCA 21; (1975) 132 CLR 258, 260-1.

[8] R v Strawhorn [2008] VSCA 101; (2008) 185 A Crim R 326, 335 [146] (Vincent, Nettle and Kellam JJA).

[9] R v Boland [1974] VicRp 100; [1974] VR 849, 866-7 (Adam, Little and McInerney JJ).

[10] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 157 [114] (Batt JA).