CRIMINAL LAW - Sentence - Total effective sentence of 8 years' imprisonment and non-parole period of 6 years - Manifest excess - Sentences imposed longer than those imposed on earlier trial - Delay - Uncharged acts - DPP v CPD [2009] VSCA 114 and R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391 applied - Leave to appeal granted but appeal dismissed.

1 I concur with Harper JA that the evidence of SDF should not have been admitted on the retrial of the applicant for the incest the subject of count 5 on the presentment. My reasons for reaching that conclusion can be briefly stated.

2 In R v Storey,[1] the High Court considered the admissibility of certain evidence on the retrial of two accused on two charges of rape. The evidence in question related to the behaviour of the accused towards the complainant shortly before the alleged rapes. In their earlier trial, the accused had faced, as well as the charges of rape, a charge of forcible abduction. In that trial, they were convicted on the counts of rape but acquitted on the count of forcible abduction. They appealed their rape convictions and were granted a new trial on those counts. On their retrial, the question of the admission of the evidence formerly relied upon by the Crown on the forcible abduction charge arose. It was relevant to the question of consent on the rape counts but was, of course, the evidence upon which the Crown had failed to gain a conviction for forcible abduction.

3 The trial judge admitted the evidence and gave certain directions to the jury with respect to the earlier acquittal. On appeal to the Court of Criminal Appeal, the convictions for rape were quashed and a new trial was ordered on the ground that by leading this evidence on the retrial the Crown was seeking to establish that the accused were guilty of the crime of which they had previously been acquitted. The Crown, unusually, was granted special leave to appeal to the High Court.

4 A majority of the seven judges who sat on the High Court appeal (Barwick CJ, Stephen, Mason and Aickin JJ) considered that the evidence in question was relevant to the issue of consent and so was admissible on the retrial for rape. However, it was incumbent on the trial judge to instruct the jury that, in considering the evidence, they had to accept the fact that the accused had been acquitted of forcible abduction and give full effect to that acquittal.[2] The jury could not use the evidence to reconsider the guilt of the accused on the abduction charge and they had to consider the evidence in light of the acquittal on that charge. Mason J said that the directions should have gone as far as instructing the jury that they could not take any view of the evidence inconsistent with the acquittal. The Crown appeal was unsuccessful in Storey because three judges (Stephen, Mason and Aickin JJ) considered that the trial judge's directions as to the use the jury could make of the evidence were inadequate, and Jacobs J thought the evidence ought not to have been admitted.

5 However difficult it might have been to construct a direction intelligible to a jury concerning the admissible evidence and the use they might make of it in Storey, in this case it would have been virtually impossible. SDF gave evidence as to the applicant's acts relevant to count 5 as an eye witness to those acts. Her evidence was that she was present when those acts were performed. But that fact, namely her presence, was central to the actus reus of the count of performing an indecent act upon which the applicant had already been acquitted. A direction complying with the High Court's instruction in Storey would have required the trial judge to tell the jury that whilst they could use SDF's evidence as evidence that the act of incest took place, they could only do so having full regard to the fact that the applicant had been acquitted of the offence of performing that act of incest in her presence; not because the jury which acquitted him had any doubt that the act occurred (the applicant was convicted of the incest) but because they must have been at least in doubt as to whether SDF was present. Her presence was the only element of the offence which the jury did not find in favour of the Crown. Such a direction would have been unintelligible to a jury and would not have been capable of being acted upon. Further, it would have necessarily called into question the verdict of acquittal on the previous occasion, thereby denying the applicant the full benefit of that acquittal: Garrett v The Queen.[3]

6 In fact, no direction of any kind was given by the trial judge as to the applicant's previous acquittal or as to how the jury should use the evidence of SDF on count 5. No exception was taken to the trial judge's charge in this regard.

7 The evidence of SDF should not have been admitted on the applicant's retrial on count 5. Its admission deprived him of the full effect and benefit of the acquittal on the count of performing an indecent act in the presence of a child, SDF, in his former trial. No direction by the trial judge could, in the circumstances of this case, have permitted this evidence to be used consistently with his being given that benefit. I would grant the applicant leave to appeal in respect of his conviction on count 5, uphold the appeal, set aside the conviction and sentence on count 5 and order a new trial on that count.

8 I agree with the conclusions of Harper JA regarding the cross-examination of SD about her prior sexual experiences, for the reasons his Honour gives. With respect to the applicant's appeal against sentence, on the basis that the sentence of four years' imprisonment which the applicant received in respect of count 5 is to be set aside, I would grant the applicant leave to appeal in respect of his sentence on count 8 but dismiss that appeal for the reasons given by Harper JA. I would fix a new non-parole period with respect to that sentence of four years.

9 In July 2006, the applicant was convicted in the County Court of nine charges, each of which involved a sexual offence against either his stepdaughter (to whom I shall refer as 'SD') or a friend of SD's. He appealed. On 20 March 2007 the Court of Appeal quashed the convictions and ordered a re-trial.

10 In September 2008, the applicant was convicted for a second time of two counts of incest, both committed when his victim, SD, was under the age of 16. The

first of these (count 5) is that between 1 December 2002 and 31 January 2003 he took part in an act of sexual penetration (fellatio) with her. The second (count 8) also alleges an act of sexual penetration which took place on 24 July 2003. On this occasion the penetration alleged is penile penetration of her vagina.

11 The applicant contends that neither of these fresh convictions is lawful. He seeks leave to appeal against both. He also seeks leave to appeal against the sentences imposed upon him in respect to each; leave which, of course, will be redundant to the extent that he succeeds in having his convictions overturned.

12 The 2006 convictions included that of committing an indecent act in the presence of a friend of SD (to whom I shall refer as 'SDF'), who was also under 16 years of age. The Crown had alleged that the act of fellatio with SD had taken place in the presence of SDF, and had therefore involved SD and her friend SDF as both witnesses and victims: SD as the victim because she was the immediate object of the act of fellatio, and SDF as the victim because she watched this indecent act occur. The applicant was accordingly charged with two offences arising out of the same incident. In other words, he was charged not only with the sexual penetration of SD which the act of fellatio represented, but also with committing that indecent act in the presence of SDF.

13 Each of SD and SDF gave evidence at the 2006 trial. Each told the jury that the other was present when the act of fellatio took place. Each by their evidence affirmed that SD was the victim of sexual penetration, while SDF was also a victim because she saw it happen.

14 Although a single incident gave rise to two charges, the jury in the 2006 trial convicted the applicant of only one: the act of fellatio. The same jury acquitted him on the other: committing an indecent act in the presence of a child less than 16 years of age. Thus is raised one of the issues which must be resolved on this appeal. In effect, the jury in the earlier trial was satisfied beyond reasonable doubt that the applicant had committed the act of sexual penetration of his stepdaughter encompassed by the act of fellatio with her. At the same time, it could not have been satisfied beyond reasonable doubt that that act had been committed in the presence of SDF. Indeed, it is of course possible that the jury were positively satisfied that the friend was not then present. And since that possibility cannot be eliminated it must, if the applicant is to be given the full value of the 'not guilty' verdict, be taken as explaining the acquittal.

15 In these circumstances, the question that arises is whether the retrial and conviction on count 5 constitutes a denial to the applicant of that which he contends is the full value of the 'not guilty' verdict at the 2006 trial on the count of committing an indecent act in the presence of SDF.

16 The applicant contends not only that he is and was entitled to such full value, but also that it can only be accorded to him if it is henceforth conclusively presumed that by its verdict the jury found that SDF was not present when the sexual act with SD took place. In the circumstances, the question is whether SDF should have been permitted to give the same evidence at a retrial of the charge of fellatio - following the successful 2007 appeal in which the conviction for that offence was set aside - as she gave at the earlier trial, when she was not accepted by the jury as a witness whose evidence left them with no reasonable doubt that she was present when the offending took place.

17 In my opinion, this Court must, for the purposes of this appeal, proceed on the basis that, by its verdict in the 2006 trial, the jury found that SDF was not present when the offending which resulted in count 5 took place. The applicant is, I think, entitled to the assumption most favourable to him. There is no logical reason to prefer the alternative view - that the jury was not satisfied beyond reasonable doubt about her presence. In these circumstances, a person in the position of the applicant must in fairness be given the benefit of the alternative most favourable to him.

18 At the trial in September 2008, the prosecution argued that SDF should be allowed to again give the evidence which either left the earlier jury with a reasonable doubt or was rejected altogether. The applicant objected to that evidence being led against him for a second time. He could not, consistently with the jury's verdicts at the 2006 trial, argue that the act of fellatio never occurred, and that SDF could not for that reason give evidence. But he could, consistently with those verdicts, contend not only that it necessarily followed from his acquittal on the charge of committing an indecent act in the presence of SDF that the jury was, at the least, not satisfied that she was there when the offence took place, but also that this Court should accept that the jury found that SDF was absent. SDF could not be called as a witness to something she did not see. She could not, therefore, be called as a witness to the applicant's commission of the offence of sexual penetration. To determine otherwise, and allow her to give evidence, would deprive him of the full benefit of his acquittal on the charge of committing an indecent act in the presence of a witness less than 16 years old.

19 At a more basic level, the applicant's contention was that the Crown should not be allowed to present as a witness to a fresh jury a person, SDF, who could be believed when another jury had found that she could not.

20 The applicant also objected to the Crown leading evidence from SD to the effect that SDF was present at the relevant time.

21 These objections were over-ruled. The trial judge held that the jury's verdict on the indecent act charge in the earlier trial 'could not be said, in any way, to be determinative of the issue'. His Honour was, moreover, of the opinion that recent authorities showed that 'the finality of the verdict of acquittal is not controverted because evidence is introduced on the subsequent prosecution which shows or tends to show that the accused was, in fact, guilty of an offence of which he had earlier been acquitted.'

22 If by the expression 'in any way ... determinative of the issue', his Honour was referring to the difference of opinion about whether SDF was present when the act of fellatio took place, I respectfully disagree. The relevant context had been conclusively determined by the verdict of guilty on the charge of sexual penetration. In that context, it can be said with certainty that, unless the jury in the earlier trial was acting perversely, it must have had at least a reasonable doubt about whether SDF was in the presence of the applicant and SD when the latter engaged with him in an act of fellatio. To that extent, the verdict was determinative. Each element of the 'indecent act' charge, save one, having been established by the conviction on the sexual penetration charge, the only conclusion open is that the jury were either satisfied that SDF was not present when (as the jury found) the applicant engaged in fellatio with SD, or had a reasonable doubt about whether she was present or not. There is no other way rationally to explain on the one hand the conviction on the charge of sexual penetration of SD and, on the other, the acquittal on the charge of doing that act in the presence of SDF.

23 The Crown submitted, in effect, that one cannot assume that the jury acted rationally. But if there is a rational explanation for two different verdicts, that explanation must be preferred over the conclusion that the jury acted irrationally, or even perversely.

24 The cases cited by the Crown do not suggest otherwise. In McKenzie v The Queen[4] a solicitor was charged with making a false statement on oath in a judicial proceeding about a matter material to that proceeding while knowing the statement to be false. The maximum penalty was 10 years' imprisonment. He was also charged with having committed perjury with the intention of procuring the conviction or acquittal of a person charged with a serious offence. This carried a maximum penalty of 14 years' imprisonment. He was convicted of the lesser charge, but acquitted of that which carried the heavier sentence. It was held that the verdicts were not so inconsistent as to render the conviction unsafe or unsatisfactory. The same would necessarily be the conclusion in the present case.

25 In their judgment, Gaudron, Gummow and Kirby JJ cited with approval a passage from the judgment of the Supreme Court of South Australia in R v Kirkman.[5] King CJ there said, with the concurrence of Olsson and O'Loughlin JJ:

Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of the law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number.

26 That might have happened in this case. Or it might not. The point remains that if there is a logical explanation for the verdicts, and that explanation is consistent with the jury returning a true verdict of acquittal in accordance with the evidence, a court should adopt that explanation.

27 The other case cited by the Crown in this context was Island Maritime Ltd v Filipowski.[6] That was an appeal from the Land and Environment Court of New South Wales. No jury was involved, although the company was charged with an offence against the Marine Pollution Act 1987 (NSW). In their judgment, Gummow and Hayne JJ examined the position which would obtain were an accused to be charged and acquitted of an aggravated offence, and later charged with the unaggravated form of that offence where all the elements of the latter were also elements (though not all the elements) of the former. This is not a case which puts in doubt the conclusion to which I have come about the appropriate means of dealing with the not guilty verdict returned on the 'indecent act' charge in question here.

28 Following the retrial in September 2008, during which SDF again gave evidence of her witnessing the impugned conduct, the applicant was once more convicted of the charge of oral sexual penetration. Consistently with his opposition to SDF being called as a witness to that offence, this is one of the two convictions which he now seeks to overturn. He similarly seeks to annul his conviction on the charge that, on or about 24 July 2003, he introduced his penis into SD's vagina. He contends this conviction cannot stand because he was wrongly prevented from fully cross-examining SD about her reasons for making her accusations against him.

29 Some further background information will assist in the understanding of this latter contention. I begin with SD. She was born in 1989. She was a year old when, in 1990, the applicant commenced his de-facto relationship with her mother. She was almost 14 years old when the first alleged incident took place, and was not long into her 15th year at the time of the second. She says that, until she reached her teenage years, her relationship with the applicant was untroubled. She referred to him as 'Dad', a term which in her case was indicative of affection as well as of their respective positions in the household. In his interview with the police, he described her as a 'really good friend of mine; rather than just being a daughter, she was a good mate to have with me.'

30 If that is correct, there must be some reason why SD turned from friendship to such enmity that she would make the allegations she has made against her step-father. The Crown says that the explanation lies in his sexual exploitation of her. He, by contrast, contends that she misbehaved with two young men; that he punished her for it; and that she now seeks revenge. His present complaint is that he was not permitted to put to the jury all the evidence which he desired to present to them on the issue of her motive in bringing what he contends is a false accusation.

31 Three grounds of appeal were put forward. The first was that the verdicts were unreasonable, or could not be supported having regard to the evidence. That was abandoned at the commencement of the hearing of the appeal. The two remaining grounds are, first, that the judge erred by ruling that the evidence of SDF was admissible 'notwithstanding the applicant's earlier acquittal in respect of her evidence'; and, secondly, that his Honour 'erred in ruling in accordance with s 37A of the Evidence Act 1958[7] that the applicant could not adduce evidence concerning [SD] that was relevant to motive.' I turn first to the evidence given by SDF.

32 This was a difficult question with what was in the end, I think, a relatively easy answer. The Court was provided with two large folders of authorities, many of them including judgments on issues which have troubled the courts for some time: whether issue estoppel is a doctrine recognised by Australian criminal law; the application in differing circumstances of the doctrines of autrefois acquit; res judicata; and double jeopardy. None of the authorities thus supplied neatly covered this case. Out of respect to their centrality to the several submissions on this ground, however, it is appropriate that some attention be given to them in this judgment.

33 In R v Ollis,[8] the accused had been acquitted of obtaining a cheque on 5 July 1899 by falsely pretending that his own cheque was valid. He was then tried for similar offences allegedly committed shortly before, and again shortly after, 5 July. These involved other victims; but the victim of the 5 July incident was recalled to give the same evidence as before. It was held to be admissible to prove a systematic fraud and disprove co-incidental inadvertence. Lord Russell of Killowen CJ said:[9]

The evidence was not less admissible because it tended to show that the accused was, in fact, guilty of the former charge. The point is, was it relevant in support of the three subsequent charges?

34 His Lordship answered that question in the affirmative. The evidence was relevant as giving that support: it showed 'a course of conduct on the part of the accused, and a belief on his part that the cheques would not be met.' Moreover, it was led not for the purpose of punishing the accused for the offence of which he had been acquitted, but in order to prove that he was guilty of other offences which were not before the court in the first trial.

35 It nevertheless remains true that a person acquitted cannot be tried again for the same offence. In Sambasivam v Public Prosecutor, Federation of Malaya,[10] the Privy Council added to this that:

The effect of a verdict of acquittal pronounced by a competent court on a lawful charge is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive on all subsequent proceedings between the parties to the adjudication.

36 The Privy Council thus enlarged the concept of double jeopardy. Fifty years later, the House of Lords qualified what the Privy Council had done. In R v Z,[11] the defendant was charged with rape, having been tried for the same offence against four different victims on four previous occasions - only one of which resulted in a conviction. The Crown wished to call all four previous complainants. It contended that the interests of justice would best be served were each permitted to give evidence, because that evidence would tend to negate a defence of consent or belief in consent in relation to the prosecution then before the court.

37 The Court of Appeal had in the meantime concluded, with reluctance, that the weight of authority, including in particular Sambasivam's case, prevented its acceptance of the Crown's argument. In delivering the judgment of the Court, Mance LJ said:

[W]e consider that the principle in Sambasivam's case is both unnecessary and undesirable, insofar as it excludes absolutely evidence the relevance of which is to establish the defendant's guilt on the present charge by showing the commission of a series of such offences, including offence(s) of which he has been previously acquitted, while allowing the admission of evidence which merely bears on one element of the current offence, such as knowledge. In our view, the problems of similar fact evidence in this area can and would be better addressed by use, where appropriate, of the court's power to stay proceedings as an abuse and/or to disallow evidence under [legislation giving the court that power]. Those powers are exercisable in the light of all the relevant circumstances. The interests of justice in particular cases would benefit from this more flexible approach. ... As it is, however, we consider with regret that we should follow the weight of authority which appears to be contrary to [the submissions advanced on behalf of the Crown].

38 Permission to adduce the contested evidence was therefore refused. On appeal by the Crown to the House of Lords, however, it was held that the principle of double jeopardy would not have been infringed had the evidence been admitted, although the trial judge had a discretion to exclude it after weighing its prejudicial effect against its probative force.

39 Their Lordships had before them a point of law which had been certified as being of general public importance. So far as presently relevant, it read:

Other than in cases of autrefois acquit, (a) is evidence admissible on behalf of the Crown in a trial for offence A which also proves guilt in respect of one or more prior incidents (B, C and D) in respect of each of which the defendant has been tried and acquitted ... ?

40 The similarity between the facts as postulated in the point of public importance and the facts in this case is clear. First, neither this case nor that of R v Z was one in which the doctrine of autrefois acquit could apply because it is a necessary precondition of the application of that principle that the accused be put in peril of conviction for the same offence as that with which he or she is then charged.[12] Just as Z could not be re-tried on any of the three charges of rape of which he was found not guilty, nor could the present applicant be re-tried on the charge of committing an indecent act in SDF's presence. The Crown does not contend to the contrary, and has not sought to re-present the applicant on the count of committing that offence.

41 The second area of similarity is that in this case, as in R v Z, the issue is or was whether the evidence (in this case, the evidence given by SDF) is admissible on behalf of the Crown in the applicant's trial for offence A (fellatio) where that evidence if accepted also proves or tends to prove guilt in respect of offence B (in this case, committing an indecent act in the presence of a child under the age of 16) - the latter being an offence 'in respect of ... which the [applicant] has been tried and acquitted'.

42 In both the present case and R v Z, then, the evidence sought to be excluded was or is relevant to the question whether the alleged offender was or is guilty of the offence with which he was or has been charged - in the present case, the offence of incest by an act of fellatio. And, as Lord Hope of Craighead pointed out in his speech:[13]

The guiding principle is that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. It would seem to follow that the evidence of these three complainants [in the three rape trials which resulted in a verdict of not guilty] should be held to be admissible in this case, subject to the discretion of the trial judge to exclude unfair evidence.

... But ... the observation [in Sambasivam that a verdict of acquittal is binding and conclusive in all subsequent proceedings between the parties to the adjudication] is in need of qualification in order to confine its application to its proper context. The principle which underlies [the statements of the Privy Council in Sambasivam] is that of double jeopardy. It is obvious that this principle is infringed if the accused is put on trial again for the same offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequence offence which was not before the court in the previous trial.

43 If Lord Hope's 'guiding principle' is applicable in this case, then it is arguable that the evidence of SDF was admissible, because 'prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible', and no question of the infringement of the 'principle' of double jeopardy arises. The present applicant was not, following his second conviction for incest, punished, or liable to be punished, in any way, for the (alleged and unproven) offence of committing an indecent act in the presence of a child.[14]

44 The longest of the speeches in R v Z was that of Lord Hutton. It too is of relevance to the present discussion. His Lordship said:

My Lords, I consider, with great respect, that the distinction drawn between the prosecution adducing evidence on a second trial to seek to prove that the defendant was, in fact, guilty of an offence of which he had been earlier acquitted and the prosecution adducing evidence on a second trial to seek to prove that the defendant is guilty of the second offence charged in that trial even though the evidence may tend to show that he was, in fact, guilty of an earlier offence of which he had been acquitted is a difficult one to maintain. The reality is that when the Crown adduces evidence in a criminal trial for a second offence it does so to prove the guilt of the defendant in respect of that offence. In order to prove the guilt in respect of the second offence it may wish to call evidence which, in fact, shows or tends to show that the defendant was guilty of an earlier offence, but the evidence is adduced not for the purpose of showing that the defendant was guilty of the first offence but for the purpose of proving that the defendant is guilty of the second offence.

45 R v Z, however, was a case in which the issue was the admissibility of similar fact evidence, derived from earlier incidents between the accused and other women. This was not the issue in the applicant's trial. It is an unavoidable difficulty in the law that statements of principle made with one set of circumstances in mind may cover those circumstances perfectly, but not fit so comfortably when transported to another set of circumstances which bear a similar but not identical character. The principle enunciated in R v Z must therefore be tested against other proceedings in which one or other or some combination of double jeopardy, or res judicata, or issue estoppel, has been a focal point.

46 One such proceeding was Mraz v The Queen [No 2].[15] The accused admitted that he had had intercourse with a young woman, during which, or shortly afterwards, she died. He was charged with murder. The Crown did not allege an intent to kill, but rather sought to prove that the victim did not consent to intercourse. If that part of the Crown case had been made out, the intercourse would have amounted to rape. But rape is a felony, and so the accused would have been caught by the felony-murder rule.

47 In those circumstances, there were three elements of the charge of murder. First, that the intercourse amounted to the crime of rape. Secondly, that an act of the accused caused the death. Thirdly, that (as admitted) the death occurred during intercourse or shortly afterwards. The third element being admitted, only the first two were in contest.

48 The jury returned a verdict of not guilty of murder but guilty of manslaughter. By its verdict of guilty of manslaughter, the jury established that the death was caused by an act of the accused. That element of the charge of murder was therefore established. But it necessarily followed from its contemporaneous verdict of not guilty of murder that the jury must have determined in favour of the accused the only remaining element of that charge of murder - that the intercourse amounted to the crime of rape.

49 As Jacobs J said in R v Storey,[16] '[t]here is double jeopardy when the commission of the second offence can be shown to have been an essential element of the first offence.' His Honour added that:

There is also double jeopardy when the commission of the first offence can be shown to have been an essential element of the second offence charged. ... Thus, conversely to the position in Mraz v The Queen, if there had been an acquittal of rape, and then the woman had died, the defendant could not be convicted of murder upon evidence that, in the course of committing the felony of rape, he had killed the woman. The acquittal on the charge of rape would be conclusive.[17]

50 On like reasoning, the High Court in Mraz v The Queen held that the accused could not subsequently be tried for rape. The commission of that offence was in the circumstances of that case an essential element of the allegation of murder, an element which on the accused's trial for that crime the Crown had unquestionably failed to prove.

51 In R v Storey,[18] the Crown case was that the complainant was waiting to catch a train when three men, including the two respondents, took her from the station to a park where she was raped, each of the three males aiding and abetting the others. The respondents were first presented on a charge of abduction together with three counts of rape, and other offences. They were acquitted on the abduction charge. The jury could not agree on the charges of rape. The respondents were later re-tried for that offence.

52 A verdict of guilty of abduction is only legally possible if the prosecution proves to the satisfaction of the jury beyond reasonable doubt that the victim was taken by force or the threat of force and against her or his will from one place to another with the intention that she or he would then have sexual intercourse - not necessarily constituting rape - with the accused. By its verdict of not guilty, the jury may not have been satisfied either of the victim's removal against her will, or of the intention to have sexual intercourse with her - or both. Only the jury knew the answer to that question, and its members could not be asked.

53 At the second trial, the respondents argued that the Crown could not lead evidence that the complainant was forcibly taken from the railway station. It was contended that the acquittal on the abduction charge raised an issue estoppel against the prosecution. The trial judge disagreed, and the evidence was admitted. The jury subsequently convicted each of the two respondents of rape.

54 That verdict was overturned by the Court of Criminal Appeal (Young CJ and McGarvie J, Gillard J dissenting). The majority was of the view that the doctrine of issue estoppel applied in the criminal law in Australia, that the sole issue on the count of abduction was whether the complainant was taken by force from the station, and that the jury by its verdict put beyond the prosecution's contention the proposition that she was.

55 Gillard J held that no precise issue arising from the circumstances in which the complainant and the accused departed from the station could be identified. Accordingly, the application or otherwise of issue estoppel in the domain of the criminal law did not arise for decision.

56 The High Court disagreed with the majority on the applicability of the doctrine of issue estoppel. Barwick CJ, Gibbs and Mason JJ, were of the opinion that the doctrine does not apply in the criminal sphere. Stephen, Jacobs, Murphy and Aickin JJ held that it is applicable, but only where an issue can be identified as having been determined in favour of the accused at an earlier trial.

57 The majority (Stephen, Mason, Jacobs and Aickin JJ, Barwick CJ, Gibbs and Murphy JJ dissenting) held that the convictions could not stand. Stephen, Mason and Aickin JJ were of the opinion that the evidence tending to show that the respondents were guilty of abduction was properly admitted despite their acquittal of that charge; but it had not been made clear to the jury that the previous acquittal could not be challenged (and, accordingly, the evidence must not be taken by the jury to prove that the complainant was abducted). Jacobs J held that the evidence was wrongly admitted.

58 Jacobs J was therefore in the minority on that point. What he said about double jeopardy is nevertheless of interest. It is, or is very close to being, the opposite of the opinion of Lord Hope of Craighead in R v Z. His Honour said:

Upon analysis it will be found that there is double jeopardy both where the matter sought to be proved is an element of the second offence and where that matter consists only of a fact relevant to the establishment of an element of the second offence. The defendant may be convicted of the second offence upon the strength of the conclusion reached in respect of the fact, even though no more than a fact relevant to a constituent fact of the second offence, and, if that conclusion is contrary to a fact which is a constituent of the first offence and which has been found in favour of the defendant, then that is double jeopardy. He is convicted of a second offence upon the strength of a fact which was an element of an offence for which he had been tried and which could be shown to have been conclusively determined in his favour.[19]

59 Were this a correct statement of the law, the admission of the evidence of SDF on the charge of fellatio put the applicant in double jeopardy. He was, or at least may have been, convicted of a second offence upon the strength of a fact - the presence of SDF - which was an element of an offence for which he had been tried and which could be shown to have been conclusively determined in his favour.

60 The issue in Rogers v The Queen[20] was the status of records of interviews between the accused and the police. Rogers was charged with a number of offences of armed robbery. At his trial in 1989, the judge, Judge Phelan, held that three records of interview upon which the Crown sought to rely (a fourth had been put to one side) were inadmissible because they had not been made voluntarily. Three years later, Rogers was the accused in another trial. On this occasion, Rogers having been indicted on further counts of armed robbery, the trial judge was Judge Kinchington. The Crown proposed to rely upon two records of interview, one of which Judge Phelan had earlier rejected, and the other being that which the prosecution had previously put to one side. Rogers applied for a stay of proceedings. Judge Kinchington refused the application. His Honour was upheld by the New South Wales Court of Criminal Appeal. Rogers obtained special leave to appeal to the High Court.

61 The High Court held that the tender of the records of interview at the later trial would be a direct challenge to the earlier determination. Mason CJ adhered to the view which he, Barwick CJ and Gibbs J had expressed in R v Storey 'that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings.'[21] The Chief Justice continued:

The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted.

62 Deane and Gaudron JJ were of the same opinion. The other two members of the bench (Brennan and McHugh JJ) took a different view. It seems, therefore, that issue estoppel has no place in the criminal law in Australia. Mason CJ nevertheless agreed 'with the reasons given by Deane and Gaudron JJ for concluding that the prosecution's tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process.'[22] The decision of the Court of Criminal Appeal was accordingly reversed.

63 In R v Carroll,[23] a case in which the respondent, having given evidence on his trial for murder, was acquitted and then charged with having perjured himself when giving that evidence, the High Court held that the perjury indictment was an abuse of process which ought to have been stayed by the judge at first instance. The charge of perjury raised the same ultimate issue as did the charge of murder. R v Z was not directly on point, but all of the judges[24] except McHugh J referred to it, and none questioned it. Indeed, Gaudron and Gummow JJ cited it for the proposition that the House of Lords (and the New Zealand Court of Appeal)[25] have each held that similar fact evidence is not rendered inadmissible merely because it shows or tends to show that the defendant was guilty of an offence of which that person has been acquitted.

64 In Washer v The State of Western Australia,[26] the appellant had been acquitted on a charge that he conspired to sell drugs. He was subsequently convicted of a similar conspiracy - indeed, a conspiracy alleged to have been extant during the period of existence of the first. At the second trial, evidence which had been led by the Crown at the first trial was again introduced by the prosecution. Counsel for Washer subsequently sought, but was refused, leave to adduce evidence of the earlier acquittal.

65 In concluding that this evidence was irrelevant and therefore inadmissible, Gleeson CJ, Heydon and Crennan JJ held that it was unnecessary for the purposes of that appeal to consider whether the approach of the House of Lords in R v Z was different to that of the High Court in Storey, Rogers or Carroll. And Kirby J noted that the Law Lords who decided R v Z 'departed from, or qualified, the Sambasivam doctrine' to the extent that it 'runs the risk of defining the rule out of existence.'[27]

66 In the end, however, none of the authorities to which I have referred are directly on point. This case is sui generis. One must therefore resort, as best one can, to first principles. It seems to me that the applicant was, by the admission of the evidence of SDF, placed in a position in which he ought not to have been placed. The 2006 jury found, as for present purposes this Court must I think accept, that SDF was not present when the offence which became the subject of count 5 was committed. In these circumstances, it seems to me impossible to reconcile with proper concepts of justice the notion that the Crown could thereafter be permitted to ask another jury in a later trial to believe evidence that had been rejected in the 2006 trial.

67 The matter may be tested by asking how a judge, charging the jury who heard the evidence of SDF on the later trial, should deal with that evidence. It must carry with it the assertion, whether express or implied, that the jury may accept that she was present when the offending which was caught by count 5 occurred. But the applicant was acquitted of the offence of committing an indecent act in SDF's presence, thus preventing the judge from suggesting to the jury that it could accept her as a witness of truth. His Honour had only two other options, neither of which was or is viable. He could either do what he in fact did, and in his charge treat SDF as just another prosecution witness, reminding the jury of all her relevant evidence and what counsel in their final addresses said about it. This would not merely not give full effect to the applicant's earlier acquittal; it would, at least for the purposes of his trial on the count of incest by fellatio, negate any benefit from that circumstance. Alternatively, he could instruct the jury that they could take her evidence about her presence into account, but must simultaneously give full weight to the fact that a jury in an earlier case had acquitted the applicant because they did not accept that SDF was present. Such an instruction would, self evidently, be impossible for a jury to obey.

68 Either way, the result would be, and was, an abuse of process.

69 For these reasons this ground of appeal is in my opinion made out. The verdict of guilty on count 5 should be set aside, and a new trial ordered on that charge.

Should the applicant have been permitted to cross-examine SD about her sexual experiences?

70 On 7 August 2003, SD told her mother that the applicant had sexually interfered with her. He was on that day confronted by the mother. He denied the accusation; but she nevertheless required him to live elsewhere. He did as he was told. He also agreed that he and SD's mother would meet on 9 August to discuss SD's accusations against him. The meeting took place. He again denied that the accusations were true.

71 The applicant was interviewed by the police on 23 September 2003. This was about seven weeks after his separation from SD and her mother: time enough, if the accusations were false, for him to attempt an explanation for the behaviour of one who he described to the police as 'rather than just being a daughter ... was a good mate to have with me.'

72 The police asked the applicant whether he had any problems with SD. He answered:

No, not at the moment, but ... we started having a few problems about 4 - 5 months ago. And [SD] was having a little bit of a run ... and I started slowing that down ... and [SD] didn't like me doing it.

73 The interview then moved to other subjects. Some time later, the applicant told the police that on the last Thursday on which he lived with SD and her mother, he and his stepdaughter had had 'a big argument'. He continued:

[SD's] new boyfriend had come over. [SD] was all over him out the front of the house. So I had a big argument with [SD] that night.

74 The applicant was asked about the boyfriend's name. He replied:

I think it was Matt. I'm not sure, Matt or Matthew they called him, I'm not sure what his name was. Had a big argument with [SD] out the front ... and when I finished ... [SD] told me: 'I am going to get you.'

75 At the trial, the applicant sought to expand upon this threat, and the circumstances in which it was made. It was important that he be allowed to do this, he contended, because it went directly to the reason for SD's accusations of his sexual misconduct with her. His proposed means was to cross-examine SD about what he alleged were her sexual relations with a number of young men.

76 Such cross-examination, however, is impermissible unless the trial judge gives leave. The relevant law is to be found in what was then s 37A(5) of the Evidence Act 1958. At the time of the trial in August 2008, it read as follows:

37A Special rules of evidence in relation to certain offences which relate to rape

(1) Notwithstanding anything in this or any other Act or any rule of law to the contrary the following Rules shall apply in relation to any proceeding, including a committal proceeding, that relates to a charge for a sexual offence, whether or not the proceeding relates to any other charges against the same or any other person and whether or not it is alleged that there are aggravating circumstances:

(1) The court shall forbid any question as to and shall not receive evidence of the general reputation of the complainant with respect to chastity.

(2) Without the leave of the court -

(a) the complainant shall not be cross-examined as to his or her sexual activities (whether consensual or non-consensual); and

(b) no evidence shall be admitted as to the sexual activities (whether consensual or non-consensual) of the complainant.

(3) The court shall not grant leave under Rule (2) unless -

(a) it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to -

(i) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of his or her age and the number and nature of the questions that he or she is likely to be asked; and

(ii) the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility in the jury; and

(iii) the need to respect the complainant's personal dignity and privacy; and

(iv) the right of the accused person to fully answer and defend the charge;

...

(5) An application for leave under Rule (2) -

(aa) must, in the case of an application to cross-examine the complainant as to his or her sexual activities -

(i) be in writing and given to the Director of Public Prosecutions ... --

...

(B) in the case of a trial, at least 14 days before the date fixed by the Criminal Trial Listing Directorate as the date on which the trial is to be listed for hearing;

(ii) set out -

(A) the initial questions sought to be asked of the complainant; and

(B) the scope of the questioning sought to flow from the initial questioning; and

(C) how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit;

(a) shall be heard in the absence of the jury (if any) and, if the accused so requests, in the absence of the complainant;

(b) shall be determined after the court has allowed such submissions or other evidence (sworn or unsworn) as the court considers necessary for the determination of the application; and

(c) shall not be granted unless the court considers that the requirements of Rules (3), (4) and (4A) are satisfied but in that case may be granted provided that the court considers it desirable in the interests of justice so to do.

77 The effect of the section, as it applies to the facts of this case, is that his Honour was bound to disallow cross-examination of SD about her sexual activities unless he was satisfied of a number of things. First, that the evidence had substantial relevance to a fact in issue. Secondly, that it was in the interests of justice to allow the cross-examination, having regard to whether, given SD's age and the number and nature of the questions that she was likely to be asked, the probative value of the evidence outweighed the distress, humiliation and embarrassment that SD may experience as a result of the cross-examination. Thirdly, the risk that the evidence may arouse inappropriate reactions within the jury. Fourthly, the need to respect the complainant's personal dignity and privacy. And, finally, the right of the applicant to fully answer and defend the charge.

78 As submitted on behalf of the applicant, the written case for cross-examination of SD was based upon the hypothesis that she had a 'real and immediate motive ... to make allegations the subject of the presentment against the accused.' The presence of the motive was the fact in issue about which, according to the applicant, it was in the interests of justice that SD be cross-examined. In his written case, the applicant contended that (i) the applicant disapproved of SD's relationships with young males, and punished SD for her part in them; and (ii) she, in retaliation, brought against her stepfather the (false) allegations upon which were based the charges of sexual penetration in respect of which the two relevant 'guilty' verdicts were returned. He accordingly sought permission pursuant to s 37A of the Evidence Act for leave to cross examine SD in an attempt to elicit from her concessions that she had sexual intercourse with two young men (who, in the materials available to this Court, were referred to only as Mustafa and Adam); that the applicant knew and disapproved; and that he had as a consequence disciplined his stepdaughter. She in turn had determined to get her revenge by making against him the false allegations which resulted in the charges of which he was convicted.

79 His Honour was however forbidden by Rule (3)(a) of s 37A(1) to allow the cross-examination unless he was satisfied that the evidence had substantial relevance to the question of motive. It was for the applicant to persuade him of this in an application, made initially in writing in accordance with Rule (5) and subsequently heard in the absence of the jury, for the leave required by Rule (2).

80 The written case prepared pursuant to Rule (5) envisaged SD being questioned about matters which went far beyond anything in the record of the police interview. The applicant did not in his interview with the police mention any allegations of sexual intercourse between SD and any boyfriend, or her alleged fear of pregnancy following such activity, or an episode at the beach with a boyfriend and a female friend (of about SD's age) during which the boyfriend allegedly had sexual intercourse with both girls. The written case, however, foreshadowed cross-examination about SD having sex with both Mustafa and Adam in 2003, in the case of the former when SDF was present at an unspecified part of an unspecified beach. It was, in the document prepared pursuant to Rule (5), also alleged that SD told the applicant about this, with the result that the applicant decreed that SDF was no longer welcome at the applicant's home.

81 Only at one point did the proposed cross-examination touch upon anything mentioned specifically in the record of interview. It alleged that SD 'made false complaints about [the applicant] because he disciplined her for behaving sexually with a boyfriend, Matt, outside the front of the house.' That equates, or attempts to equate, 'behaving sexually' with SD being 'all over him'.

82 The applicant did not give evidence, either on a voir dire or before the jury. He, therefore, did not - save in a few brief references in the record of interview - do anything to give any substance to the fact in issue, being SD's alleged motive. In short, there was almost nothing in the evidence before his Honour upon which the judge could base a conclusion that the evidence sought to be adduced had substantial relevance to a fact in issue. To allow the cross-examination which the applicant proposed would be to allow him to go on a fishing expedition, and cause SD much distress, humiliation and embarrassment - with the accompanying risk of creating an attitude of bias, prejudice and hostility in the jury - without any evidence to suggest that there was anything of substance to catch.

83 Without that evidence, the record of interview came nowhere near filling the gap. During the course of the interview, the applicant mentioned Matt or Matthew, not Mustafa or Adam (though Matt could have been an Anglicised version of the former). And he said nothing about SD having sexual intercourse with anybody. In my opinion, his Honour was in these circumstances entitled, if not bound, to refuse to allow the applicant to cross-examine SD about having sexual intercourse with the persons alleged. Instead, he ruled - as did the (different) judge in the earlier trial - that cross-examination was to be limited to 'the alleged disciplinary action and the complainant's conduct as a result.' His Honour added that '[t]he claim of payback for disciplinary action can be fully pursued without cross-examination of the complainant about her sexual conduct with Mustafa or Adam or anyone else.'

84 Cross-examination, limited as the judge proposed, was consistent with the provisions of s 37A. Cross-examination about SD's alleged sexual conduct was not. For these reasons, this ground of appeal must fail.

85 The applicant was sentenced to imprisonment for four years on count 5 (fellatio) and six years' imprisonment on count 8 (penile penetration). Two of the four years imposed on the first charge were ordered to be served cumulatively upon the six imposed on the second, making a total effective sentence of eight years' imprisonment. The applicant seeks leave to appeal against both the individual sentences and the total effective sentence. He also seeks leave to appeal against a non-parole period of 6 years, imposed in respect of these two charges.

86 In relation to sentence, the applicant says that:

(a) The individual sentences, total effective sentence and non-parole period are manifestly excessive.

(b) The sentencing judge erred in the manner in which he imposed sentences that exceeded the sentences imposed for these offences at an earlier trial.

(c) The sentencing judge erred by speculating as to the bases upon which the jury may have acquitted the applicant of other counts and finding that the jury must have substantially accepted the evidence of the complainant.

(d) The sentencing judge erred by failing properly to have regard to the issue of delay.

(e) The sentencing judge erred in his approach in sentencing the applicant to the evidence of uncharged acts that had been adduced by the Crown.

87 At the time of her being sexually abused by the applicant's unprotected penetration of her vagina by his penis on 24 July 2003, SD was a mere 14 years old. By any measure, this was a despicable act. The maximum penalty is 25 years' imprisonment. The applicant relies on statistics which reveal that the heaviest penalty imposed in the period 2002-2003 and 2006-2007 was eight years' imprisonment, while the median term was four years' incarceration.[28]

88 As this Court said in DPP v CPD[29] it is axiomatic that every sentencing judge - and this Court when it is sentencing or resentencing - must have regard to the maximum penalty for the offence in question. It must also have regard to current sentencing practices. When the latter is out of step with the former, there is nothing in the relevant legislative provision - s 5(2) of the Sentencing Act 1991 - which suggests that current sentencing practices must prevail.

89 As explained in DPP v CPD[30] and R v AB (No 2),[31] the guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum. Where that is so, the requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences.

90 In MP v The Queen,[32] the appellant had pleaded guilty to numerous sexual offences against two children who at the time of the offending were between 11 and 16 years of age. Buchanan JA, with whom Neave and Mandie JJA agreed, upheld sentences of imprisonment of four years on one count of incest, five years on another such count, six years on yet another, seven years on each of four such counts and eight years on the last of eight counts of that crime. In his reasons for judgment, his Honour said:

It is, in my opinion, important that the courts impose sentences for the crime of incest which make clear that our society will not tolerate the sexual exploitation of children by those who stand in a position of trust and confidence to them. General deterrence is a principal purpose in the sentencing for this offence.[33]

91 I agree. Parliament has expressed through its setting of the maximum penalty for the offence of incest the community's abhorrence of such criminality. That must especially include (as in this case) the unprotected penile penetration of, and ejaculation into, the vagina of a child to whom the offender is bound by parental ties which should necessarily include love and trust. A term of six years' imprisonment for an offender who cannot claim any discount for a plea of guilty, and who has not shown any remorse, is in my opinion consistent with the decision of this Court in MP v The Queen, and well within the range of sentences for incest attended by the degree of criminality shown by the present applicant.

Heavier sentence than that previously imposed - Ground 2

92 The applicant complains that following the earlier trial he was sentenced to only five years' imprisonment on this count. But, as Kirby J noted in R H McL v The Queen,[34] the rule of restraint 'is not a rigid rule.' In my opinion, it is not such as to have bound the sentencing judge in the instance under appeal. His Honour was entitled to take the view that this was a serious example of a serious crime, one which warranted a sentence which exceeded by 12 months that which a different judge in somewhat different circumstances had thought fit to impose.

93 The applicant next complains that the sentencing judge erred by speculating about the basis upon which the jury may have acquitted the appellant of other counts, and by finding that the jury must have substantially accepted the evidence of SD. This, the applicant submits, 'must have aggravated penalty.' But all his Honour said about the charge at issue here was that the applicant's conviction reflected the fact that the jury acted on SD's evidence 'as to events when she was older and closer in time to the complaint being made.'

94 There is no basis in that for any complaint. It is true that his Honour elsewhere in his reasons for sentence ascribed possible reasons, not including a lack of belief in the evidence of SD, for the verdicts of not guilty on some charges. It does not follow that his Honour sentenced the applicant for the count of incest with which I am presently concerned on the basis that the applicant was in reality guilty of those other counts in respect of which the Crown was unsuccessful. Certainly, the sentence of six years' imprisonment discloses nothing in itself to suggest error of the kind to which the applicant refers.

95 The fourth ground of appeal against sentence is that of delay. The offence in question occurred in July 2003. The applicant has since been subjected to a number of trials. But nothing was said about delay during the course of the plea. It follows that his Honour had no reason to think that delay had any of the attendant problems, or given rise to demonstrable progress in rehabilitation, which sometimes forms the basis for mitigation of penalty. This Court is in no different position.

96 The final ground of appeal against sentence is that his Honour, having concluded that the jury accepted the evidence of uncharged acts, sentenced the applicant on the charge of incest with which I am concerned as if it were a representative count.

97 I do not accept that that conclusion is justified. It is true that his Honour referred to the context of a background of offending in which the charge in question here was an incident in an incestuous relationship. On the other hand, he said that he only sentenced the applicant for his conduct relevant to this charge, treating the associated conviction as separate. He added that the charge 'cannot be viewed as [an] isolated incident but I must sentence only for the offending in [this] count and I have done so.'

98 I would grant the applicant leave to appeal against sentence on count 8, but dismiss the appeal for the reasons given above. On the basis that the verdict on count 5 will be set aside, however, it is necessary to fix a new non-parole period. I would order that the applicant serve four years' imprisonment before being eligible for parole. I would grant the applicant leave to appeal against conviction and sentence on count 5, allow the appeal, and set both conviction and sentence aside. I would order that a new trial be had on that count. Subject to hearing from counsel, I would confirm all other ancillary orders.

[1] [1978] HCA 39; (1978) 140 CLR 364 ('Storey').

[2] Ibid 372 and 375-6 (Barwick CJ), 398 (Mason J), 424-5 (Aickin J with whom Stephen J agreed).

[3] [1977] HCA 67; (1977) 139 CLR 437.

[5] (1987) 44 SASR 591, 593.

[6] [2006] HCA 30; (2006) 226 CLR 328.

[7] Now the Evidence (Miscellaneous Provisions) Act 1958.

[8] [1900] 2 QB 758.

[9] [1900] 2 QB 758, 764.

[10] [1950] AC 458, 479.

[11] [2000] UKHL 68; [2000] 2 AC 483.

[12] Connelly v DPP [1964] AC 1254, 1339-1340.

[13] [2000] UKHL 68; [2000] 2 AC 483, 487.

[14] R v Teremoana (1990) SASR 30; R v Medcraft (1992) 60 A Crim R 181.

[15] [1956] HCA 54; (1956) 96 CLR 62.

[16] [1978] HCA 39; (1978) 140 CLR 364, 407.

[18] [1978] HCA 39; (1978) 140 CLR 364.

[19] R v Storey [1978] HCA 39; (1978) 140 CLR 364, 410-411.

[20] (1994) 181 CLR 251.

[21] (1994) 181 CLR 251, 254.

[24] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

[25] R v Degnan [2000] NZCA 321; [2001] 1 NZLR 280, 292.

[26] [2007] HCA 48; (2007) 234 CLR 492.

[27] [2007] HCA 48; (2007) 234 CLR 492, 521.

[28] Sentencing Snapshot No 43 - February 2008 (Sentencing Advisory Council, Victoria).

[29] [2009] VSCA 114, [71].

[31] [2008] VSCA 39; (2008) 18 VR 391.

[32] [2011] VSCA 78.

[33] [2011] VSCA 78, [31].

[34] [2000] HCA 46; (2000) 203 CLR 452, 498 [140].