Danny (a pseudonym) v The Queen [2018] VSCA 223

1 An indictment filed in the County Court charges the applicant with five charges of indecent act with a child under 16.[2] There are two complainants. Charges 1, 2 and 3 relate to a female child, 'BLS', aged seven or eight years at the time of the alleged offences; and charges 4 and 5 relate to a female child, 'CBH', aged 10 or 11 years at the relevant time. Two charges - charges 1 and 5 - allege that the applicant rubbed the vagina of the BLS and CBH respectively whilst making direct contact under clothes and underclothes; and three charges - charges 2, 3 and 4 - allege that the applicant rubbed the vagina of the relevant complainant over clothes or underclothes. The prosecution asserts that the evidence of each complainant is admissible as tendency evidence.

2 By a notice of tendency evidence dated 29 January 2018, filed pursuant to s 97(1) of the Evidence Act 2008 ('the Act'), the prosecution indicated its intention to adduce the following tendency evidence:[3]

1. The tendency sought to be proved is the tendency of [Carl DANNY] to:

(1) Have a particular state of mind namely:

(a) a sexual interest in pre-pubescent females;

And:

(2) Act in a particular way namely:

(a) touching/rubbing the vagina (inside or outside underwear) without penetration (Charges 1 - 5);

(b) touching/rubbing the vagina whilst the complainant is sitting on the accused's lap (Charges 1, 2, 4, 5);

(c) touching/rubbing the vagina having grabbed the complainant in the context of play (Charge 1, 2, 4, 5);

(d) touching/rubbing the vagina whilst other persons are in the vicinity other than the complainant's father (Charges 1 - 5).

3 The following day, on 30 January 2018, a judge ruled that some of the tendency evidence was admissible ('the ruling' or 'the interlocutory decision'). His Honour outlined the issue as follows:

... The real question is whether the crimes occurred. The question then is, if there is a sexual interest demonstrated in these two children, is the tendency to act on that interest likely to be influential to the determination of whether the reasonable possibility that the complainants have misconstrued innocent conduct or fabricated their accounts has been excluded. That is going to be the issue in this case.

4 After referring to ss 97(1) and 101(2) of the Evidence Act 2008, and having discussed a number of authorities - including CGL,[4] Papamitrou[5] and Hughes[6] - his Honour ruled as follows:[7]

The allegation is that the tendency is to act in a particular way, that is (a) touching, rubbing the vagina inside or outside underwear. I find that the fact of no penetration is irrelevant, and that particular tendency to act in the above particular way relates to each of the five charges_. I find, on the facts, the alleged acting in a particular way as detailed in 2(b), (c) and (d) do not evidence any relevant tendency_. They are circumstantial and are not circumstances that relate to each charge.

I find that 2(c) and (d) have no basis whatsoever in establishing a tendency, nor does the fact of the coincidence to effect the sexual touching on occasions victims are placed on the lap, relate to any tendency at all.

The tendency that has to be considered, on the evidence, is that [Carl Danny] has a particular state of mind, namely a sexual interest in these two young females, aged 7 and 11, and that that sexual interest was acted on in a particular way namely that he touched and rubbed the vagina (either inside or outside of underwear) of each of those children, as detailed in Charges 1 to 5.

5 The judge then cited several passages from Hughes,[8] and adverted to this Court's decision in Bauer (No 2),[9] and observed:

In this case, while individually there is nothing about [the applicant's] alleged actions that show a particular matter of similarity, the circumstances in each of the five charges here are of particular interest. That is, the evidence is of the touching on five occasions of two girls, in a household where [the applicant] has access as a friend, or on one occasion where the family has been present at [the applicant's] premises, and when members of that family unit are present.

The question is whether the tendency has a level of particularity, to use the High Court's word which will be more than likely to be significant. ...

6 Finally, after essaying some further analysis, and having said that it was unnecessary to consider s 137 of the Act, the judge ultimately ruled:

In the circumstances therefore, the tendency, as I have defined it, that is, the particular state of mind being the sexual interest in these two girls, aged 8 and 11, and the particular way in which it was acted out, that is the touching and rubbing of the vagina of each of those girls within the confines of the family unit, as set out in Charges 1 and 5, is cross-admissible in both trials.

7 Although, with respect, his Honour's reasons may have been a little discursive and somewhat imprecise, in our opinion the gist of what the trial judge was endeavouring to convey is as follows: the relevant tendency is that of the applicant to have a sexual interest in pre-pubescent females, and to act on that interest by touching or rubbing the vagina (inside or outside underwear) 'within the confines of the family unit'. Put more precisely, we consider that the judge sought to identify the relevant tendency as that of the applicant to have a sexual interest in pre-pubescent females, and to act on that interest by touching or rubbing the vagina (inside or outside underwear), in circumstances where there is an imminent risk of detection by family members. Understood in that way, as we will explain, the judge was correct to admit the impugned tendency evidence, and to conclude that it was cross-admissible between the two complainants on all charges.

8 The day that the ruling was delivered - the applicant's counsel having indicated that it was sought to challenge the ruling - the judge certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 ('CPA') that the interlocutory decision 'concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case'; and further certified pursuant to s 295(3)(c)(i) 'that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial'.

9 Initially, the applicant sought leave to appeal the ruling on the following grounds:

1. The learned trial Judge erred by failing to assess whether the complaints made by the two complainants were each independently capable of being admissible as tendency evidence before assessing whether their evidence was cross-admissible as tendency evidence.
2. The learned trial Judge erred in admitting tendency evidence pursuant to the Prosecution notice of tendency filed on the 29th January 2018 in circumstances where the evidence of each of the complainants lacked significant probative value and the probative value does not outweigh the prejudice to the applicant.

In the course of oral argument, however, the applicant's counsel effectively abandoned reliance on the first ground.

10 Leave to appeal the interlocutory decision may be granted in the circumstances specified by s 297 of the CPA:

(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to -

(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and

(b) whether the determination of the appeal against the interlocutory decision may -

(ii) substantially reduce the time required for the trial; or

(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.

(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

11 The burden of authority requires the Court to resolve the central issue whether the judge erred according to House principles.[10] Leave to appeal may only be granted, therefore, if the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or if the judge's decision is unreasonable or plainly unjust.[11]

12 For the reasons that follow, we would refuse leave to appeal.

13 So as to understand the competing contentions of the parties, it is necessary to outline the prosecution case. It is conveniently set out in the Prosecution Opening:

1. [Carl Danny] was born on 19 January 1981. At the time of the offences he was 34-35 years old.
2. There are two complainants;
   1. [CBH] who was born [in] April 2005. At the time of the offences she was 10-11 years old.
   2. [BLS] who was born [in] August 2008. At the time of the offences she was 7 years old.
3. The complainants are step sisters. They live with their mother ['NS'], [BLS's] father ['LS'] and their 5 year old twin brothers.
4. The [applicant] was a family friend. He would visit the family home on occasions and the family would also visit the [applicant's] home.

1. Between 01/10/2015 and 01/03/2016 the [applicant] and [BLS's] family were at the [applicant's] house in Mount Pleasant. [BLS] was playing in the garage with the [applicant's] daughter. The [applicant] was sitting down and [BLS] was facing away from him. The [applicant] put his hands near her belly and she ended up sitting on the [applicant's] lap. The [applicant] turned her around and put his hand inside her underwear and rubbed her vagina area. It went for 'as long as it takes to make a coffee'. [BLS's] mum was in the room at the time, though the [applicant] turned her so her mum couldn't see. [BLS's] dad walked in while the [applicant] was rubbing her, and the [applicant] then stopped. The complainant says that she told her dad about this incident at the time it occurred. This was the first time the [applicant] had rubbed her vagina. It was before Christmas 2015. (Charge 1 - Indecent Act)
2. Between 01/01/2016 and 24/06/2016 the [applicant] and [BLS] were in the lounge room of the complainant's house. [BLS] was watching the television and the [applicant] asked her to give him a hug. The [applicant] was sitting on a coach and [BLS] sat on the [applicant's] lap. The [applicant] began rubbing near her belly button and then rubbed her vagina area over her clothing. (Charge 2 - Indecent Act)
3. Between 01/01/2016 and 24/06/2016 the [applicant] was at [BLS's] family home. The [applicant] was carrying [BLS]. She was being carried on her side. When the [applicant] went to put [BLS] down he rubbed the vagina area of the complainant on both the outside and inside of her clothing and underwear. The [applicant] rubbed the complainant for about 5 seconds. (Charge 3 - Indecent Act)

1. Between 01/07/2015 and 01/03/2016 the [applicant] and [CBH] were wrestling in the lounge room of the complainant's home. The [applicant] 'caught' [CBH]. She was then sitting on the [applicant's] lap and the [applicant] started to rub her vagina area. The [applicant] put his hand down the front of her shorts but not underneath her underwear. The [applicant] rubbed her vagina area for approximately 5 seconds. [CBH] asked the [applicant] to stop but he didn't. (Charge 4 - Indecent Act)
2. Between 01/02/2016 and 30104/2016 the [applicant] and [CBH] were together at the complainant's house. [CBH] recalls this was before her birthday. The [applicant] again 'caught' her and she sat on his lap. The [applicant] rubbed her vagina area with his fingers underneath her underwear. [CBH] was wearing shorts and underwear. She asked the [applicant] to stop and called out to her step sister Bella. (Charge 5 - Indecent Act)
3. On an occasion prior to the police attending the complainant's house on the morning of 24 June 2016, the [applicant] came out of her mother's bedroom and tried to put his hand down the front of her pants. He got to her belly, but she walked away to the kitchen. This incident happened at approximately 1am.

14 When interviewed by police on 4 September 2016, the applicant denied any wrongdoing, but said that he recalled one incident when BLS was jumping 'all over' him and she told him that he had touched her rude spot. He said that if that had happened, it was an accident.[12] The relevant part of the interview is as follows:[13]

1. [CBH] and [BLS] have made some VARE[[14]] statements.
2. Yep.
3. Which is like statements that children make where they come in and video it and all that. They've stated that on a number of occasions, particularly when dad's away, that you've - you've touched them inappropriately on their vagina.
4. All right, I ---
5. Do you ---
6. --- deny that black and blue.
7. Yep.
8. I have actually got [BLS] once or twice, I'll admit that, 'cause she jumps all over me and stuff and I - she's even said, 'Ooh, that's my rude spot' in front of her parents and I've gone, 'Whoa' and that was it. That would ---
9. Yep.
10. --- have been about four months ago.
11. Yep.
12. Apart from that, if it's happened it's only when I've been jumped over ...

1. And in regards to the playing and ---
2. Yeah, well, every time I do rock over there they jump all over me like I'm a jungle gym.
3. Yep.
4. I do admit that, all - all over me [sic] back and that, and it's ---
5. Yep.
6. --- not just one of the kids at a time, it's all four of them at once.
7. Yep.
8. Yeah, I do recall her saying, 'Ooh, that's my private spot' when she was on my back and I've gone over - gone to grab her or something like that to get her off.
9. Yep. Yep.
10. That's the only time I can recall doing it. And I can honestly say, 'cause I went, 'Oh, shit' and freaked out 'cause I don't want this sort of shit happening to me.
11. Yep.
12. I've dealt with it my whole life, I'm over it.
13. Yep. So in your recollection that's the only time ---
14. Yep.
15. --- that you'd ---
16. Yep.
17. What about young - young [CBH], any ---
18. [CBH], I've got no idea on that one at all.
19. Mm'hm.
20. That's all new. She's pretty quiet that girl so ---

15 In written submissions, counsel for the applicant contended that the trial judge was first required to assess the probative value of the two complainants' evidence separately. As we have mentioned, however, in the course of oral argument counsel eschewed reliance on this contention (as embodied in the first ground).

16 Counsel for the applicant submitted that for tendency evidence to be admissible, it must have significant probative value, and the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the applicant. It was submitted, however, that the evidence of neither complainant is capable of having significant probative value. Hence, so far as CBH is concerned, her evidence is unsupported by any independent evidence; her account is internally inconsistent; and the alleged offending occurred in circumstances different to those alleged by BLS, with important features being absent. And so far as BLS is concerned, it was submitted that her evidence is unsupported by any independent evidence; her complaint is vague and imprecise; her account in her VARE[15] is inconsistent on critical issues; the circumstances of the offending differ from those described by CBH; and she accepts that she does not have a clear memory of occasions when the offending is said to have occurred at her house. Whilst counsel accepted that the assessment of credibility is a matter for the jury, the probative value of the evidence is so degraded that it cannot be said to be 'significantly probative'.

17 In written submissions, counsel had submitted in the alternative that the probative value of the evidence was outweighed by the risk of unfair prejudice. Cases of this kind, counsel submitted, are apt to ignite emotional responses in a jury; and, in circumstances where the evidence is word on word, tendency evidence is seductive. In oral argument, however, counsel did not press these arguments.

18 In written submissions, counsel for the respondent submitted that it was important to understand that the prosecution sought the admission of each complainant's evidence as tendency evidence in circumstances where the applicant's defence is that the offending did not occur.

19 It was submitted that it was open to the judge (as he did) to make the following findings:

• the applicant had a sexual interest in young females;

• the applicant had a tendency to act on that interest by touching and rubbing the vagina of each of the complainants;

• the tendency was of such a particularity that it was of significant probative value thus satisfying the requirements of s 97(1) of the Act; and

• the probative value of this evidence substantially outweighed any prejudicial effect of the evidence, as required by s 101(2).

20 The respondent's counsel submitted that the touching of the complainants on the vagina is clearly a sexual act; and that the evidence of each complainant in turn establishes the applicant's sexual interest in young girls and a tendency to act upon that interest by touching or rubbing the vagina. Each complainant's evidence is capable of establishing the relevant tendency in the trial relating to the other if that evidence satisfies the safeguards of 'significant probative value' that 'substantially outweighs any unfair prejudice'. Counsel submitted that this is not a case where the tendency evidence sought to be relied upon is from the one single complainant in a trial and hence might require some 'special feature' to meet the test of 'significant probative value'. In this case the evidence comes from an independent source - the other complainant.

21 For the purposes of the judge's assessment of probative value, the quality of each complainant's individual evidence is not relevant. It is to be assumed that the evidence will be accepted by the jury. The tendency evidence sought to be relied upon does have significant probative value. It was open to the judge to find as he did that the circumstances of the applicant's alleged offending as against each complainant evidenced a tendency that had a particularity about it attributing to it significant probative value in the context of this case.

22 In oral argument, notwithstanding the terms in which the prosecution's notice dated 29 January 2018 is expressed, the respondent's counsel accepted that the relevant tendency upon which the prosecution will seek to rely at trial is as expressed above:[16] the relevant tendency is that of the applicant to have a sexual interest in pre-pubescent females, and to act on that interest by touching or rubbing the vagina (inside or outside underwear), in circumstances where there is an imminent risk of detection by family members.

23 As we have indicated, in our view it was open to the trial judge to admit the impugned tendency evidence.

24 To retrace a well-worn path, s 55(1) of the Evidence Act 2008 provides that 'evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. Subject to exclusionary rules, s 56(1) provides that evidence that is relevant in a proceeding is admissible; and s 56(2) provides that irrelevant evidence is not admissible. The expression 'fact in issue' is not defined in the Act. It is plain that in a criminal trial, however, the facts in issue will be those that bear on the existence of the elements of the offence (or offences), and behind those there will be facts relevant to those facts in issue.[17]

25 In the present case, the prosecution seeks to rely on the applicant's tendency to have a particular state of mind, namely a sexual interest in pre-pubescent females; and his tendency to act in a particular way, namely touching or rubbing the vagina inside or outside underwear. The admissibility of such evidence is governed by s 97(1) of the Act, which provides (so far as relevant):[18]

97. The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -

...

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

26 The probative value of evidence is defined in the Dictionary to the Act as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. Section 97(1)(b) requires tendency evidence to have more than mere probative value, however, by providing that it must have significant probative value. Moreover, s 101(2) of the Act provides that in a criminal case tendency evidence adduced by the prosecution cannot be used against an accused person unless its 'probative value substantially outweighs any prejudicial effect it may have'.

27 In determining whether the evidence of the complainants is admissible as tendency evidence it is important to understand the applicant's 'defence'. So far as the conduct founding the charges with respect to the two complainants alleged in the written Prosecution Opening, the filed Defence Response simply asserts that the applicant 'denies the conduct alleged'. Thus, as formulated at the present pre-empanelment stage, the applicant's case is a bald denial of intentionally indecently touching either of the complainants.

28 In his interview with police, however, the applicant specifically admitted contact with BLS's 'rude spot' or 'private spot' on one occasion, although he claimed that the contact occurred accidentally in the course of play. (Whether he will assert the same at trial with respect to CBH is not clear.) Thus, certainly with respect to the charges concerning BLS, it may be anticipated that a principal fact in issue will be whether any contact with her vagina was - or was not - accidental.

29 In order to secure a conviction on any charge on the indictment, the prosecution will need to prove, first, an indecent act (constituted in the case of each charge by the applicant rubbing the vagina of the particular complainant); and, secondly, that the relevant indecent act was intentional. If the jury entertains a reasonable doubt about either of those principal issues on any charge, acquittal must follow. Therefore, it is the capacity of the asserted tendency evidence to go in proof of the relevant indecent act, and in disproof of the possibility of accidental contact (at least in the case of BLS), which is critical to any assessment of its admissibility.

30 By its terms, s 97(1)(b) makes clear that particular tendency evidence is not to be assessed in isolation. As we have mentioned, counsel for the applicant initially submitted that the trial judge was first required to assess the probative value of the two complainants' evidence separately, but abandoned that submission in the course of oral argument. Given the plain words of the section, and in light of what the High Court said in Hughes, counsel was correct to do so.

31 In Hughes, the majority ( Kiefel CJ, Bell, Keane and Edelman JJ) observed:[19]

Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.

In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford:[20] 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

32 Hence, as the majority in Hughes made plain, it is necessary for a trial judge to consider each charge separately to assess whether the tendency evidence which is sought to be adduced in relation to that charge is admissible. That does not require the judge to look at the evidence of each complainant separately.[21] Rather, in the context of this case, it is necessary to consider the disputed evidence together with all of the other evidence to determine whether it makes significantly more likely that the applicant touched or rubbed the vaginas of the complainants intentionally.

33 Further, in IMM, French CJ, Kiefel, Bell and Keane JJ said:[22]

In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. ...

34 In the present case, we consider that CBH's evidence concerning the circumstances in which the applicant rubbed her vagina is capable of rendering it significantly more likely in the eyes of a jury that - contrary to his assertions to police - the applicant's contact with BLS's 'rude spot' or 'private spot' was not accidental. In our view, it is capable of rebutting the reasonable possibility that BLS has misconstrued innocent conduct (or, for that matter, fabricated her account).

35 Importantly, the evidence discloses with respect to both complainants that the indecent touching alleged against the applicant occurred in circumstances where there was an evident risk of detection. Thus, as was the case in Hughes, proof of the applicant's tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, is capable of removing a doubt which the audacity of his conduct might otherwise have raised. For these reasons, we consider that not only is the evidence of CBH admissible on the charges relating to BLS, but the evidence of BLS is also admissible as tendency evidence with respect to those charges relating to CBH. The probative value of the evidence of each complainant lies in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks.[23]

36 As we have indicated, counsel for the applicant originally contended that the evidence of each complainant did not have significant probative value because of matters that impinged on its reliability, but ultimately did not press that submission. With respect to the submission as first formulated, however, we note that in IMM[24] it was held that, in determining the admissibility of impugned tendency evidence, an assumption as to the jury's acceptance of the evidence must be made, so that no question as to credibility or reliability of the evidence, or the witness giving it, can arise.

37 For these reasons - and at the risk of some repetition - we consider that the evidence of BLS and CBH is cross-admissible to establish tendency, the relevant tendency being that of the applicant to have a sexual interest in pre-pubescent females, and to act on that interest by touching or rubbing the vagina (inside or outside underwear), in circumstances where there is an imminent risk of detection by family members.

38 Given that the judge did not err in admitting the impugned tendency evidence, leave to appeal the interlocutory decision should be refused.

[1] To ensure that there is no possibility of the identification of the victim of sexual offending, and so as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Crimes Act 1958, s 47(1).

[4] CGL v Director of Public Prosecutions [2010] VSCA 26; (2010) 24 VR 486.

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

[6] Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 ('Hughes').

[7] Emphasis added to this and following passages.

[8] Hughes, 203 [58], 204 [60] and 204 [64].

[9] Bauer (a Pseudonym) v The Queen (No 2) [2017] VSCA 176 ('Bauer (No 2').

[10] House v The King (1936) 55 CLR 499 ('House').

[11] House, 505 (Dixon, Evatt and McTiernan JJ). See KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11, 12-13 [9]-[14]; Singh v The Queen [2011] VSCA 263; (2011) 33 VR 1, 6-7 [26]; DPP v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, 444-5 [13]-[16]; Hermanus (a Pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 341 [38].

[12] Whether he asserts the same with respect to CBH is not quite as clear, although he told police that all four children jump on him at once, and that if there had been any relevant contact, it had occurred in that context.

[14] See footnote 15 below.

[15] Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366 and 367.

[17] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[19] Hughes, 199 [39]-[41] (emphasis in original).

[20] [R v Ford (2009) 273 ALR 286; 201 A Crim R 451; [2009] NSWCCA 306] at [125].

[22] IMM v The Queen (2016) 257 CLR 300, 318 [62]-[63] ('IMM').

[23] Hughes, 203 [59]; 204 [62]-[64]. See also Bauer (No 2), [62].