CRIMINAL LAW - Evidence - Rule against hearsay - Complaint evidence - Prior representations of complaint evidence led as an exception to the hearsay rule - Substantial time delay between the asserted facts and the dates on which the representations were made - Trial judge limited the use of the evidence under s 136 to buttressing credibility only - Need to comply with statutory pre-conditions under exception to credibility rule - Whether the asserted facts were 'fresh in the memory' of the complainant - Sections 66, 108, 136, 137 and 192 of the Evidence Act 2008 - XY v The Queen [2010] NSWCCA 181 referred to - Papakosmas v The Queen (1999) 196 CLR 29 considered - Appeal dismissed.

CRIMINAL LAW - Appeal against sentence - Manifest excess - Appellant re-sentenced because of the successful appeal against sentence - Sentence not manifestly excessive.

CRIMINAL LAW - Appeal against sentence - Child pornography - Manifest excess - Parity - Sentencing discretion re-opened - Appellant re-sentenced.

1 Following a trial in the County Court at Melbourne, the appellant was convicted on two charges of indecent act with a child under 16 (Charges 1 and 2), five charges of incest (Charges 4, 7, 9, 11 and 13) and one charge of rape (Charge 5).[1] All of the charges involved the complainant, who is the daughter of the appellant's former de facto partner. On 8 April 2011, the appellant was sentenced to a total effective sentence of nine years and six months' imprisonment, with a non-parole period of six years and four months. He also pleaded guilty to one charge on a second indictment[2] of making child pornography, and was sentenced to nine months' imprisonment, to be served concurrently with the sentences imposed on the first indictment.

2 The appellant, having been granted leave, appealed against his convictions on the first indictment on the following two grounds:

1. The trial judge erred in failing to exclude the evidence of the complainant's friends, BM and SY, as to complaints made to them by the complainant.
2. Alternatively, the verdict of the jury on count [Charge] 5 (rape) is unsafe and unsatisfactory.

3 At the oral hearing the appellant abandoned Grounds 1, 2 and 4 and sought leave to raise an additional ground of appeal.

1. That a miscarriage of justice resulted from the trial judge's failure to relate the evidence to his direction to the jury on the law of consent.

4 The offences occurred over a period of approximately one year while the appellant was living with the complainant and her mother at a unit in Sunbury. The complainant was aged between 15 and 16 years at the time of the offences. The appellant was 26 years older than the complainant.

5 On 1 June 2003, the appellant was home alone with the complainant. The complainant had drunk three or four 'vodka cruisers', purchased for her by the appellant. She was falling asleep on the couch. The appellant told her to go to bed and started massaging her legs, back and buttocks. He took her to bed and she pretended that she was asleep. The appellant left the room and returned 20-30 minutes later. He pulled down the complainant's doona, lifted up her shirt and started to rub and suck her breasts. These acts constituted Charge 1. The applicant then took the complainant's left hand and moved it up and down on his penis. This act constituted Charge 2.

6 In September 2003, the complainant was lying in bed. The appellant got under the covers of the bed and began hugging, rubbing her body and putting his fingers in her vagina (Charge 4). On the same occasion, the appellant began to rub his penis against the complainant's vagina. She was lying on her back and the appellant was on top of her. She said 'Don't put it in, don't put it in' and the appellant replied 'No, I won't'. At some stage after this discussion, the appellant put his penis in her vagina (Charge 5).

7 The complainant gave evidence that she had sexual intercourse with the appellant on many occasions. She stated that it occurred two or three times per week and usually in her bedroom at night when her mother was asleep. Other specified instances of sexual intercourse between the appellant and the complainant comprised Charges 7, 9, 11 and 13.

8 The complainant's friend, BM, gave evidence that in 2004 or 2005, the complainant had told her that on one occasion she was asleep on the couch at home and that she woke up to find the appellant standing next to her with his genitals out. They went to her bedroom and had sex. The complainant told her that he would enter her bedroom when her mother was sleeping and have sex with her and that they had also had sex in his car. The complainant's evidence at trial was that BM was the first person she had told about her sexual relationship with the appellant.

9 Another friend of the complainant, SY, gave evidence that she received a text message from the complainant in which the complainant stated that she had been in a sexual relationship with the appellant when she was younger. SY and the complainant had a telephone discussion that evening and on another occasion two days later, in which they discussed what had occurred between the appellant and the complainant.

Grounds 5 and 6 - Whether the evidence was sufficient to establish to the criminal standard that there was no free agreement by the complainant and whether the directions adequately dealt with the evidence on that issue.

10 The appellant submitted that the verdict on the charge of rape, was unsafe and unsatisfactory as the complainant's evidence, being the only evidence in relation to Charge 5, was incapable of establishing beyond reasonable doubt that the complainant did not give free agreement to the act of sexual penetration.

11 The appellant's defence to this charge, as it was to all other charges, was that there had been no sexual relationship whatsoever with the complainant.

12 At trial, the entirety of the complainant's evidence in relation to the act that constituted Charge 4 - incest, and Charge 5 - rape was as follows:

COMPLAINANT: [I]t was in the morning and mum was at work and [the appellant] came into my room and jumped into bed with me. His clothes were on, and I was - I felt okay, like, he was just hugging me and comforting me and I'd never had a man hug me before because I don't have a dad.

PROSECUTOR: Yes?

COMPLAINANT: And it sort of felt nice but then he started rubbing my body, my clothes were on, he was rubbing my body and like my legs, my thighs, in between my thighs, like, my back, my stomach, arms, everything.

PROSECUTOR: What were you wearing, do you remember?

COMPLAINANT: I'm not sure. I can't remember.

PROSECUTOR: And then what happened?

COMPLAINANT: And then he told me that I was wet and he put his fingers in my vagina. And then I don't know what happened next but I just remember he was naked and I was naked and he was on top of me, just pleasuring me.

PROSECUTOR: What do you mean by that?

COMPLAINANT: Just, I could feel his penis rubbing against my vagina and I said to him, 'Don't put it in, don't put it in'. And he said 'No, I won't'. And then eventually it just went in.

PROSECUTOR: Yes, all right. Now what was your position and what was his position?

COMPLAINANT: I was laying on my back, and he was on top of me.

PROSECUTOR: Yes, thank you. And do you remember, or do you have any memory as to how long his penis remained inside your vagina?

COMPLAINANT: I can't remember, sorry.

PROSECUTOR: Do you know whether or not he ejaculated?

COMPLAINANT: I can't remember.

PROSECUTOR: Do you remember what happened after he withdrew [from] your vagina?

COMPLAINANT: I remember walking into the bathroom and I looked at myself in the mirror and my hair was all wet and sweaty, and I just thought to myself, 'Oh my God, I've just had sex. And I wasn't a virgin any more', because my friends had told me if you had---

PROSECUTOR: ---Sorry?

COMPLAINANT: Sorry, I was confused because my friends had told me that the first time you have sex you bleed and I didn't bleed. And I remember I had a shower.

PROSECUTOR: Now after that very occasion, you said that was in the morning?

COMPLAINANT: Yep.

PROSECUTOR: What did you do after you had the shower?

COMPLAINANT: I went and got a spray-tan.

13 Following the close of the prosecution case the appellant made a no case submission in relation to the charge of rape. The appellant submitted that there was no evidence as to the issue of consent, and that as a consequence the matter should be taken away from the jury. In particular, the appellant contended that there was no evidence from the complainant of any accusation of rape at the time of the incident or any resistance, it being noted that she was not specifically asked by the prosecutor as to whether she consented to the act at the time of penetration.

14 The trial judge rejected the no case submission. His Honour ruled that the complainant's evidence that the appellant told her that he would not put his penis into her vagina was prima facie evidence that there was no consent. His Honour said:

In determining this issue, the question that must be asked is as set out by the High Court in Doney v R, in particular 214 to 215, where the Court said:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision."

There are further references to the meaning and the determination that is required in these applications in Attorney-General's Reference (No 1 of 1983).

Mr Hill's submission, of course, is that as there is no evidence capable of supporting element 3, the matter cannot proceed.

It is, however, necessary to take into account the provisions as to consent in the Crimes Act 1958 and the matters upon which the jury will be instructed upon. Consent is, of course, under s 36, described to mean free agreement. The non-exclusive list of matters set out in items (a) to (g) are not relevant to the facts of this case.

It is also necessary to take into account the directions that I am required to give the jury, in particular, the directions set out under s 37AAA of the Crimes Act 1958. I am required to not only direct the jury as to the meaning of s 36 which, in this particular case, would require me simply to describe consent as meaning free agreement, but I am to tell the jury, specifically, pursuant to sub-s (d) the following: 'that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without the person's free agreement.'

I find sub-s (e) also applies to these circumstances. Hence, there is no obligation, in the circumstances, for the complainant to have given evidence at the time of penetration she had consented. No doubt, as was put by Mr Hill, such evidence would help, but as sub-s (d) shows, such question is not necessary if the circumstances set out in sub-s (d) are evidence, that is, to use the words of the section, 'enough to show'.

15 The trial judge's charge conveyed the relevant evidence in regard to Charge 5 to the jury, then his Honour said:

The prosecution say to you, clearly in this case he was aware she was not consenting. The prosecution say to you, as there was nothing else said between them between the time of penetration, you should take the view, and conclude beyond reasonable doubt that it was against her consent, that is, she did not give her consent.

...

Now, in this instance, there is no evidence from [the complainant] that she said anything at the time of the actual act of penetration. She had, and this is relied upon, in the totality of the evidence by the prosecution, it would appear shortly, but I am not sure about that, because it simply says 'eventually' it went in, but the evidence is that prior to that happening, she had said, 'Don't put it in, don't put it in'. As I say to you, in those circumstances, the law is such that this means that if you accept [the complainant] did not say or do anything to indicate free agreement to the sexual penetration at the time that that act occurred, you may find on that basis, therefore, that she did not consent to that act.

The law also says that you are not to regard a complainant as having freely agreed just because, for example, she did not physically resist or protest loudly, that as a result that she did not sustain any physical injury in the circumstances...

In determining this matter, whether she did not freely agree to be sexually penetrated, you must consider all of the relevant evidence, including what she said at or about that time or what she did not say. Indeed, as I said to you, there is no actual evidence of her having said anything at the time of penetration. You could also take into account, no doubt, as one of the circumstances her age at the time, her evidence to you that this was her first sexual experience in the sense of intercourse, and indeed the age no doubt of [the appellant] at the time and the age difference.

16 The appellant submits that, contrary to the judge's ruling, there was no evidence of a lack of consent at the time of penetration. Counsel for the appellant argued that, as a consequence of the paucity of the evidence surrounding the act of penetration, the prosecution was unable to establish the absence of free agreement to the criminal standard. He drew attention to the evidence of the complainant that the appellant said she was 'wet', and that she described his conduct as 'pleasuring her'. This evidence was said to support the inference that the complainant was sexually aroused. The complainant's request that the appellant not insert his penis occurred at some indeterminate point of time prior to the act of sexual penetration and it was unknown how long further consensual sexual activity was maintained before penetration occurred. It was said that, in the absence of evidence as to the time that elapsed, there was insufficient temporal connection between the adjuration and the penetration so as to make it emblematic of the act of penetration. In counsel's submission, the only reasonable inference to be drawn from the evidence is that for some unknown period of time after her utterance, the appellant with the complainant's consent continued to 'pleasure' the complainant until according to the complainant 'eventually it just went in'. There was no evidence as to what the complainant did during this period prior to penetration. As she was not asked by the prosecutor whether she agreed to that act, it was contended that her state of mind at that time could not be ascertained. The prosecution could not then exclude as a reasonable possibility that the complainant no longer had an objection to penetration at the time that it took place.

17 Further, the appellant identified other aspects of the complainant's testimony that raised the possibility that the sexual intercourse may have been consensual. She stated that after the incident, she went to the bathroom and saw that her hair was 'wet and sweaty'. She recounted her state of mind at the time, saying 'Oh my God, I've just had sex'. She did not refer to being raped. After the incident, she went and had a spray tan, after which the appellant picked her up and drove her home. Thereafter she said she had consensual intercourse with the appellant on numerous occasions.

18 The respondent submitted that the verdict on the charge of rape was one clearly open to the jury. It was put that by her adjuration, 'Don't put it in', the complainant made it abundantly clear that she did not give free agreement to penile penetration. Notwithstanding the uncertainty of the temporal gap between the utterance and the act of penetration, and the absence of evidence as to what the complainant did during that time, it was submitted that such acts as occurred were part of a single transaction. In that context, so it was said, it was perfectly open to the jury to conclude the complainant had not given free agreement. The matter of consent was a question for the jury. The respondent submitted that s 37AAA(d) was irrelevant as nothing was said or happened after the complainant's statement.

19 The respondent submitted that the factors identified by the counsel for the appellant - the complainant's arousal, her sweaty hair, her realisation that she'd just had sex, and her decision to get a spray tan after the incident - were irrelevant, because at the moment of penetration, the complainant was not consenting. Counsel for the respondent submitted that his Honour was correct to highlight the age of the complainant and the fact that it was her first sexual experience as they demonstrated an imbalance of power between the appellant and the complainant. It was put that the jury was entitled to infer that these factors gave weight to the conclusion that the complainant had not given free agreement, particularly in light of the fact there was no evidence of consent.

20 The crime of rape is defined by s 38(2)(a) of the Crimes Act 1958, which relevantly provides:

(2) A person commits rape if -

(a) he or she intentionally sexually penetrates another person without that person's consent -

(i) while being aware that the person is not consenting or might not be consenting; or

(ii) while not giving any thought to whether the person is not consenting or might not be consenting.[3]

21 Rape was not defined by legislation until 1980.[4] This definition was concerned solely with the actus reus. The common law understanding of consent focussed upon whether the victim showed a manifest refusal or resistance in order to prove non-consent.[5] In R v Howard, the English Court of Appeal stated:

The prosecution, in order to prove rape, must prove either that [the victim] physically resisted, or if she did not, that her understanding and knowledge was such that she was not in a position to decide whether to consent or resist.[6]

22 In 1991, the Crimes Act 1958 was amended to introduce a statutory definition of consent and to include a non-exhaustive list of prescribed circumstances in which a person does not freely agree to a sexual act.[7] Consent was defined as 'free agreement'.[8] The Crimes (Rape) Act 1991 introduced s 37 into the Crimes Act 1958, requiring judges to give jury directions in respect of the issues of consent and delay in reporting the offence.[9] As noted by the Victorian Law Reform Commission, these reforms represented significant changes to the concept of consent:

Section 37(1)(a) introduced the concept that inactivity or silence now indicates lack of consent rather than the opposite. Bernadette McSherry has suggested that the new definition reinforces a 'communicative model of sexuality'.[10]

23 Sections 37AA and 37AAA, relating to jury directions on the issues of consent and the accused's awareness as to consent, were inserted into the Crimes Act 1958 in 2007.[11] A new s 37 was substituted.[12] These sections relevantly provide:

(1) If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA.

(2) A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding.

(3) A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to -

(b) the elements of the offence being tried in respect of which the direction is given -

so as to aid the jury's comprehension of the direction.

For the purposes of section 37, the matters relating to consent on which the judge must direct the jury are -

(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement;

(e) that the jury is not to regard a person as having freely agreed to a sexual act just because -

(i) she or he did not protest or physically resist; or

(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.

37AA Jury directions on the accused's awareness

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider -

(b) whether that belief was reasonable in all the relevant circumstances having regard to -

(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and

(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

24 The Attorney-General explained these amendments in the Second Reading Speech:

[T]hese amendments seek to clearly support the communicative model of consent. In a rape trial, Victorian law currently requires the prosecution to prove that the accused was aware that the complainant was not or might not be consenting to an act of sexual penetration. This requires the accused to have actively turned their mind to the issue of consent. That is to say, if an accused person effectively does not care one way or the other whether the person they are having sex with is consenting, and therefore does not even turn their mind to this issue, then the offence of rape is not committed. This also applies to a range of sexual offences which have the same fault element.

The community expects that where someone is intending to engage in a sexual act with another person, they will ensure that the other person is freely agreeing to engage in that act. It is not acceptable for a person to engage in a sexual act whilst being completely indifferent to whether the other person agrees. Where there is any doubt in the mind of the person instigating the sexual act, there is a responsibility upon that person to communicate with the other person in order to remove that doubt.

These amendments make it clear that a person will be guilty of the relevant sexual offence both if they are aware that the other person was not or might not have been consenting to the sexual act or if they do not turn their mind at all to the issue of consent.[13]

25 The definition of consent as 'free agreement' and the stringent jury directions on consent, particularly s 37AAA(d) and (e), unequivocally displaced the anachronistic common law notion that unexplained passive or silent participation in a sexual act was to be seen as evidence of consent. However, notwithstanding the legislative shift towards a 'communicative model of sexuality', it is important to note that s 37AAA(d) is not a deeming provision. The onus remains on the prosecution to establish that the complainant did not consent.

26 Section 37 provides that it is 'enough' in law to make out the element that the act took place without the complainant's free agreement, that the complainant did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place. However there must be evidence that permits such a conclusion. If there is, it is still for the jury to decide whether they are satisfied that the element has been proved to their satisfaction to the criminal standard.

27 During oral argument a further issue arose as to whether the trial judge erred in directing the jury to consider whether the prosecution had proved beyond reasonable doubt that the accused was aware that the complainant was not consenting. The trial judge gave an extensive charge to the jury on the question of whether the appellant believed the complainant was consenting to the act of sexual penetration, and whether it would have been reasonable for him to hold that belief in all the circumstances of the case. Pursuant to s 37(2) of the Crimes Act 1958, a trial judge must not direct the jury as to whether the accused believed that the complainant was consenting if the issue of belief in consent was not a fact in issue in the proceeding. As the joint judgment of the High Court stated in Getachew:

[W]hen s 37AA is read in the light of s 37, it is apparent that a jury is to be given directions about an accused's belief in consent (and the bearing that this belief may have on awareness of the lack of consent) only if the possibility that the accused held such a belief has been raised at the trial (whether because evidence was led that the accused had such a belief or an assertion was made that the accused had such a belief).[14]

28 As already observed, the appellant's defence proceeded on the basis that there had been no sexual relationship between the appellant and the complainant. The appellant made no assertion that, at the time of sexual penetration, he believed the complainant was consenting. As is made abundantly clear in Getachew, a direction on belief in consent pursuant to s 37AA is to be given only if such a belief is asserted or led in evidence. His Honour was obliged not to give such a direction.

29 In his ruling on the no case submission, the trial judge determined that both s 37AAA(d) and (e) were enlivened in the circumstances of this case and directed the jury accordingly. In fact, it was on the basis that sub-ss (d) and (e) applied that his Honour found there was no obligation for the complainant to have given evidence [at the time of penetration] that she had not consented. His Honour reasoned that although there was no evidence as to whether the complainant gave consent at the time of penetration, the fact that the complainant did not say anything or do anything to indicate free agreement was 'enough to show' that there was no free agreement, and the jury was entitled to reach a verdict on that basis.

30 However, for the provision to have effect there must be evidence that 'at the time at which the act took place' the person 'did not say or do anything to indicate free agreement.' Was the evidence sufficient to establish that at the time of penetration the complainant had done nothing to indicate that penetration was consensual?

31 It is unfortunate that the trial judge was not assisted by either the prosecutor or the defence in relation to this issue. Ordinarily the prosecution would not leave such a gap in the evidence. The complainant would usually be asked what she did during the period immediately preceding the sexual act. Unless it was obvious from the circumstances of the rape that it was not with the free agreement of the complainant, the complainant would usually be asked whether the act was consented to. If the complainant's conduct after the act occurred might be viewed as indicating that it was consensual, she would ordinarily be asked to explain why she acted as she did. The defence did not explore these questions in cross-examination. Neither did they raise these matters as an alternative defence during closing argument.

32 Notwithstanding the failure of counsel to assist the trial judge, his Honour's reference to s 37AAA(d) in the ruling on the no case submission should have served to draw attention to whether there was evidence that would enable the jury to conclude that nothing was further said or done by the complainant. As the temporal gap raised by her evidence, 'eventually it just went in', was left unexplored, there was no evidence of what she did after her initial request. In the result, the evidence was insufficient to establish that, at the time of penetration, the complainant had done nothing to indicate that penetration was consensual.

33 The trial judge's charge focussed upon the fact that it is enough in law that the complainant say or do anything to indicate free agreement but did not draw attention to the evidence relating to that issue and whether it was sufficient to enable the jury to conclude that the complainant did nothing to signify free agreement.

34 In giving a direction in conformity with s 37(d), that to show that the act took place without the complainant's free agreement it is enough to show that the complainant did not say or do anything, the trial judge must ensure that the jury understands that the onus of proof remains on the prosecution to establish the facts which in this way make out this element of the offence. The prosecution must establish that the complainant did not say or do anything to indicate free agreement to the sexual act. The absence of any evidence to that effect will not be sufficient to establish those facts unless the account of the complainant of the circumstances in which the offence occurred, if accepted, leads inexorably to the conclusion that there was no free agreement to the sexual act. In circumstances where the possibility of consent is a real issue, there must be positive evidence adduced that the complainant said nothing and did nothing to indicate free agreement. That burden is usually discharged by explicit evidence from the complainant that she did not consent to the act and did not do or say anything to suggest otherwise. In such circumstances, where the complainant gives no evidence as to these matters, their existence cannot ordinarily be inferred to the exclusion of any innocent hypothesis.

35 The jury would have understood from the directions we have set out above that the law says that as there was no evidence from the complainant that she said or did anything at the time of penetration, they may on that basis find that she did not consent. But it was for the prosecution to establish those facts by evidence, and not by an absence of evidence. We doubt that the direction given adequately brought home to the jury that there was no evidence that these things did not occur and that an absence of evidence did not establish those matters.

36 Apart from the complainant's statement 'don't put it in' which was made at an uncertain time prior to penetration, there was circumstantial evidence that was consistent with the innocent hypothesis that the complainant no longer had an objection by the time of penetration. That possible state of affairs arose because the period between the time of the request and penetration was not explored by the prosecutor nor was the complainant asked whether she freely agreed to penetration. The manner in which the prosecution had sought to discharge its burden of proving that the complainant did not consent was singularly inappropriate. In circumstances like the present, there can be no justification for a failure by the prosecution to obtain explicit evidence from the complainant that she did not consent to the act of penetration and to explore and clarify any conduct of the complainant which might reasonably support a contrary conclusion. It was for the prosecution to negate this possibility of free agreement. In our opinion the prosecution failed to discharge its burden to the criminal standard of proving that penetration was non consensual.

37 The jury should have been directed to consider whether the prosecution had satisfied them that the complainant did nothing to indicate free agreement. Attention should have been directed to the fact that the complainant did not describe what occurred in the intervening period following her request and before penetration 'eventually' occurred, nor had she said that she did not agree to penetration when it occurred. The directions should have focussed upon the state of the evidence. As a consequence of these deficiencies the trial judge's directions were inadequate. They failed to relate the evidence to the issue of consent.

38 Before leaving this ground we should make clear that counsel for each of the parties also bore a responsibility for ensuring that all necessary directions were given to the jury. Counsel's obligations are not confined to the facts which have been explicitly put in issue as a result of the way in which the case has been conducted. The duty extends to any issue arising on the evidence and is sometimes described as the rule in Pemble's case.[15] Notwithstanding the forensic decisions made as to the issues that are to be contested, the duty of assisting the trial judge extends to the identification of any directions that are required as a consequence of the evidence that has been given.

39 For these reasons we would uphold Grounds 5 and 6. The conviction on the charge of rape should be set aside. The Crown submitted that if there was error such that the conviction could not be sustained, we should substitute a conviction on the charge of incest. We shall substitute a conviction on the lesser offence of incest.

Ground 3 - Whether the trial judge should have excluded the evidence of complaint under s 137

40 During the trial, the prosecution led evidence as set out above of the representations made by the complainant to the two witnesses, BM and SY, with regard to her sexual relationship with the appellant.

41 BM gave evidence that the conversation between herself and the complainant took place in either 2004 or 2005. They were made approximately 18 months after the acts constituting Charges 11 and 13 and between two and two and a half years after the acts constituting Charges 1, 2, 4, 5, 7 and 9.

42 SY gave evidence that she received the text message from the complainant in 2007. SY no longer had this text message on her phone and could provide no detail as to what the complainant actually told her. The representations made by the complainant to SY were made approximately three and a half years after Charges 11 and 13 and between four and four and a half years after Charges 1, 2, 4, 5, 7 and 9.

43 The prosecution sought to lead this evidence as evidence of its truth under s 66 of the Evidence Act 2008 by way of an exception to the hearsay rule in s 59. Section 66 relevantly provides:

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by -

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made -

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including -

(a) the nature of the event concerned; and

(b) the age and health of the person; and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Note: Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606.

44 The appellant objected to the introduction of this evidence at the trial, submitting that the representations were inadmissible as they were inexact, unreliable and were not 'fresh in the memory' of the complainant at the time she made them.

45 At the conclusion of a voir dire the trial judge ruled that evidence of the representations made by the complainant to BM and SY were admissible pursuant to s 66. His Honour drew upon the remarks of Whealy J in R v XY[16] that the temporal relationship between the occurrence of the asserted facts and the making of the representation was a relevant, but not determinative consideration as to whether a representation was made when the asserted fact was 'fresh in the memory'. The trial judge resolved that the question of admissibility should be approached in accordance with the interpretation of s 66 in R v XY. His Honour said:

As to the nature of the event, that is, the incest charges, I find, that such an event, that is, having intercourse with your step-father, at the age of fifteen, would be a significant event....I also find, whether one is sexually naïve or not, of which it appears [the complainant] was and is not, those two factors would have been significant events. I consider that, prima facie, each of the representations are admissible pursuant to s 66.

46 In R v XY, the Director of Public Prosecutions appealed against an interlocutory order made by the trial judge, who ruled that representations made by the complainant to a friend two to three years after the event and to his mother and father four years after the alleged offences occurred were inadmissible on the basis that they were not 'fresh in the memory' of the complainant. Whealy J with whom Campbell JA and Simpson J agreed observed:

First, it will be seen that s 66(2) makes admissible evidence of the representation that would otherwise have been caught by the hearsay rule. It does so in the circumstances dealt with by the subsection, that is, relevantly for the present matter, if the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

Secondly, s 66(2A) is an interpretative section. It tells the reader how the section is to be interpreted. It makes clear that, in determining whether the occurrence of the asserted fact was 'fresh in the memory' of the person, the court may take into account 'all matters that it considers are relevant to the question'. Thus it will be seen that the three matters mentioned in (a), (b) and (c), although clearly very important, are not the only matters that may be considered.

For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase 'fresh in the memory' no longer is to be taken as an indication that it means 'recent' or 'immediate'. The expression 'fresh in the memory' is now to be interpreted more widely than did the High Court in Graham's case. No longer is the 'core meaning' of the phrase to be interpreted as 'essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation'. That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court now must take into account 'the nature of the event concerned'. In Graham's case, that was not seen as a particularly important matter. It now takes its place as an important consideration in the factors to be considered.[17]

47 Whealy J found that the trial judge had erred in ruling the evidence inadmissible. His Honour considered that the unusual features and precise detail recalled by the complainant suggested strongly that these events remained 'fresh in the memory' at the time of the representation.

48 The lapse of time remains a relevant consideration though 'fresh in the mind' is not to be construed as imposing a determinative temporal limitation. LMD v The Queen,[18] a recent decision of this Court, illustrates the point. Two complaints were admitted, one being 6 to 8 years after the sexual offences and the other 9 to 11 years after the sexual offences. Harper JA (with whom Bongiorno JA and Davies AJA agreed) dismissed an appeal against the trial judge's finding that the evidence was admissible under s 66(2A). In doing so Harper JA observed that the period of time between the occurrence of the asserted fact and the making of the representation is one of the factors which the Court may take into account in determining whether that occurrence was fresh in the memory. His Honour adverted to the fact that the Act contemplates that other considerations may be relevant, including 'the nature of the event concerned and the age and health of the representor'. It also refers to 'all matters that [the court] considers are relevant to the question'.[19]

49 The appellant submitted in his written case on appeal that the complaints could not satisfy the criteria of being 'fresh in the mind' under s 66, nor, in contrast to R v XY were there any 'unusual features' to the acts alleged. It was also submitted that there were significant inconsistencies between the substance of the complaints and the evidence of the complainant. The appellant did not however challenge the decision of the trial judge to adopt the approach formulated in XY. We would reserve for consideration on an appropriate occasion whether XY gives sufficient emphasis to the temporal factor that remains within the concept of 'fresh in the mind'. As the argument that the complaints were not fresh in the mind of the complainant was abandoned in oral argument we need not further consider whether the period that had elapsed prior to the making of the complaints, the nature of the offences, the age of the complainant at the time and the content of the complaints took the complaints beyond the reach of s 66(2A).

50 In his written case the appellant also submitted that once the representations were held to be admissible under s 66, they could only be used as evidence of the truth of the facts asserted. He contended that a separate application was required under s 108(3)(b) of the Evidence Act, which allows the adduction of evidence of prior consistent statements to support the witnesses' credit, if it is or will be suggested that the witnesses' evidence has been fabricated or reconstructed. That contention was rightly abandoned on the appeal.

51 As we have said, the prosecution sought to admit the evidence as proof of the facts asserted under s 66 as an exception to the hearsay rule. Had the evidence been admitted for that purpose it became relevant to the facts in issue.[20] In those circumstances the submission would be without substance as the evidence would not fall within the credibility rule in s 102, nor would s 108(3)(b) then be relevant. However, as hereafter appears, the trial judge, pursuant to s 136, admitted the evidence on a more limited basis. The evidence was only to be used to buttress the credibility of the complainant. The intention of the judge being to confine the evidence to credibility, the issue arises whether the judge was obliged to take account of the matters raised in s 108(3)(b) and s 192 of the Act. We shall return to this question.

52 Evidence, if relevant, may be used for a hearsay purpose if it falls within an exception to the exclusionary rule against hearsay. Though admissible under s 66 the evidence is always subject to other exclusionary provisions of the Act such as ss 135, 136 and 137. In light of the Crown's intent to lead the representations as proof of the asserted facts, the trial judge considered whether, pursuant to s 137 of the Evidence Act 2008, he should completely exclude the evidence of BM and SY on the basis that its prejudicial effect outweighed its probative value.

53 Section 137 of the Evidence Act provides:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

54 If the trial judge concludes that the probative value of the evidence is outweighed by the danger of unfair prejudice, the evidence must be rejected.[21] The appellant submitted that the trial judge erred in weighing the prejudice of the evidence against its probative value.

I have determined not to make an order pursuant to s 137, as I consider such evidence does have probative value despite the respective time delay in regard to such evidence, having taken into account all of the circumstances in the case and concluded that the probative value of such evidence is not outweighed by the danger of unfair prejudice. However, I intend to exercise the discretion given to this Court by s 136 in confining the use of the evidence to that of buttressing the credibility of the complainant only and not allowing the evidence to be used as to truth of the fact, because I find that the admission of such evidence as to the truth of the fact after such a delay in regard to all of the indentified representations would be both confusing and misleading to the jury in the circumstances of the case and may well become unfairly prejudicial.

I also indicate that insofar as the use of such evidence being used to buttress the evidence of the complainant, I intend to provide, because of the respective delay in both instances, a warning to the jury in regard to the issue of delay and unreliability of the evidence thereby produced as detailed in s 165(1)(c) of the Evidence Act 2008.

56 Evidence may be used for the narrow purpose of assisting the tribunal of fact in its determination of whether or not to accept the sworn evidence of the complainant on the basis that it tends to support or confirm or buttress or bolster or strengthen or enhance his or her credibility.[22] As Dawson J stated in Crofts v The Queen:[23]

a recent complaint may be consistent with the truth of the evidence given by the complainant and so assist in establishing his or her credit. But that is as far as evidence of a recent complaint ... can go. It does not itself go to establish the facts of which the complainant gives evidence...[24]

57 Although s 136 may be used to limit the use that may be made of complaint evidence to buttressing the complainant's credit, Gleeson CJ and Hayne J in their joint judgment in Papakosmas v The Queen[25] made it clear that s 136 should not generally be used to that effect:

The appellant's second submission is that, even assuming the hearsay evidence in the present case was relevant, and fell within the exception created by s 66, nevertheless there was a miscarriage of justice because the trial judge (although not asked to do so) failed to apply one of the additional safeguards, being that expressed in s 136.

In brief, the appellant contends that this was a case in which s 136 should have been applied to limit the use that could be made of the evidence of complaint to the use which could have been made of such evidence at common law, as explained in cases such as Lillyman and Kilby. The jury, it is argued, should have been given the standard common law direction in relation to the use of evidence of recent complaint in sexual assault cases.

Counsel went so far as to argue that, as a general rule, a court which receives evidence of complaint in any criminal case should limit its use under s 136 so that it is not used for a hearsay purpose.

The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded.

There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation.

In the instant case, the facts and circumstances surrounding the complaint were not such as to make the use of the evidence for a hearsay purpose either unfairly prejudicial to the appellant, or misleading or confusing. The recency and spontaneity of the complaint, and its consistency with other aspects of the complainant's appearance and demeanour, meant that it was not unfairly prejudicial. There is nothing to suggest such evidence was either misleading or confusing in its use for a hearsay purpose.[26]

58 In their joint judgment Gaudron and Kirby JJ adopted these reasons.[27] McHugh J reached the same conclusion. Gleeson CJ, Hayne J and McHugh J approved the decision of the New South Wales Court of Appeal in R v BD[28] in which Hunt CJ at CL and Bruce J considered it artificial and wrong to admit evidence pursuant to s 66(2) and then limit the use of the evidence to credibility issues by exercising the power conferred by s 136. McHugh J made these further observations:

In the ordinary case, a warning under s 165 should be sufficient to alert the jury to the dangers of hearsay evidence. For that reason, s 136 should only be invoked in cases where the danger could not be cured by such a warning. No doubt the judge is more likely to limit the evidence to credibility issues when it has been admitted by way of s 108(3)(b) rather than by way of an exception to the hearsay rule. It is a sine qua non for admission via s 108(3)(b) that it is only relevant to credibility - s 102 of the Act. Nevertheless, directions under s 136 should not be made as a matter of course.

In support of his submissions that the trial judge should have directed the jury to use the complaint evidence only on the credibility issue, the appellant relied on the dissenting judgment of Smart J in R v BD where his Honour said:

"Notwithstanding the warning which the judge gives under s 165 that the hearsay evidence may be unreliable it is my view that to admit complaint evidence as evidence of the fact contained in it is usually unfairly prejudicial to an accused as it allows a complainant to shore up the Crown case. Evidence of a complaint should not be elevated. At the very least there is a danger that the use of the statements in the complaint as evidence of the truth of the facts will be unfairly prejudicial.

...

A mild dilemma may arise. If evidence of the complaint is admitted because it does not fall within the prohibition in s 102 or because s 108 applies that evidence would be admitted as evidence of the statements made and not as evidence of the truth of the facts in the statement. Assuming the same complaints are also admissible under s 66, then in the absence of a direction under s 136, the statements would be evidence of the facts which they assert. In such a case the better course will usually be to admit the statements or representations and direct that they are to be used as evidence that such statements were made and not of [the] truth of the facts asserted in the statements."

To use s 136 in this general fashion is to subvert the intention of the legislature.[29]

59 These observations are in accord with those of Gleeson CJ and Hayne J.

60 Where s 108(3)(b) has been used as the gateway for the admission of prior consistent statements such as complaint evidence, once the evidence is admitted the exception to the hearsay rule may be enlivened as it would be if s 66 had been relied upon as the gateway for its admission. In either case, once the party who seeks to adduce the evidence relies upon s 66, s 136 should not then generally be used to confine the relevance of the evidence to credibility.

61 Having regard to the observations in Papakosmas that s 136 should not generally be so used, the present circumstances may not have justified the approach taken by his Honour. Needless to say the appellant did not take issue with the trial judge's ruling precluding the prosecution from relying upon the truth of the asserted facts. That ruling may have been unduly favourable to the appellant. However it is unnecessary to further consider that question.

62 A trial judge's evaluative process under s 137 is quite distinct from the discretion to limit the use of particular evidence under s 136. Subject to the constraints referred to in Papakosmas, a judge may limit the use of evidence under s 136 where there is a danger of prejudice, notwithstanding the fact that the risk of prejudice does not outweigh the probative value of the evidence.

63 The trial judge considered that the risks attached to the admission of the complaint evidence would be sufficiently addressed by limiting the use that could be made of the complaint evidence accompanied by a warning to the jury. Applying a different test under s 137, his Honour ruled that the probative value of this evidence outweighed its prejudicial effect.

64 The appellant in oral argument developed a new submission to the effect that the matters that led his Honour to limit the use of the evidence to credibility under s 136 should have led the trial judge to exclude this evidence entirely under s 137. The appellant submitted that his Honour's acknowledgment of these factors - the risk of prejudice, the substantial delay and the prospect that the evidence would be confusing and misleading to the jury - that required the evidence in the judge's discretion under s 136 to be so limited, should have led to the conclusion that the unfair prejudice of this evidence outweighed its probative value.

65 The respondent submitted that the trial judge was correct in finding that the representations made by the complainant to BM and SY, while vague, were admissible to buttress the credibility of the complainant. It submitted that although the trial judge indicated that he had some reservations about the content and accuracy of the representations, those concerns did not call for the exclusion of the evidence.

66 This Court resolved in McCartney v The Queen[30] that where the facts are not in dispute, this court should decide for itself whether the decision under s 137 was correct. We must therefore decide whether the trial judge was correct in concluding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused.[31] The argument here raised is that the deficiencies in the evidence that led his Honour to conclude that its use be limited under s 136 meant that it was so unfairly prejudicial that it should have been excluded under s 137. As his Honour did not identify the features of the complaint evidence that led him to conclude that its use should be confined, we must make our own assessment of any deficiencies in that evidence. The appellant did not identify the way in which unfair prejudice might arise but may be relying upon the possibility that, given the deficiencies in the quality of the evidence, it might be given more weight that was warranted in supporting the complainant's credit or alternatively that it might be misused as evidence as to the asserted facts. The latter prejudice was rarely treated as ground for excluding such evidence at common law, it being assumed that the jury would abide the directions of the trial judge that the complaints were not evidence of the asserted facts and that the evidence was relevant only to the consistency of the complainant's account.

67 As the written submissions concerning s 108(3)(b) were abandoned, the point was not taken that once the trial judge had determined to confine the use of the evidence to the credibility of the complainant, it was necessary for the trial to reconsider the leave requirements under s 108(3)(b) and s 192. Nevertheless, where it is suggested that the trial judge, under s 136 should limit the use that may be made of evidence to credibility, it is clear that the preconditions to admissibility for credibility under s 108(3)(b) and s 192 should not be circumvented.[32] Amongst those considerations will be the capacity of the prior consistent statement to answer the attack made upon the complainant's credibility. Whatever the gateway by which the evidence is sought to be admitted, once the trial judge has under consideration limiting the use of the evidence to credit, the judge should be satisfied that the preconditions laid down under the Act are satisfied.

68 Although his Honour did not explicitly advert to these provisions, however, it is enough that the trial judge addressed these considerations in his reasons.[33] It is clear that the factors enumerated in s 192 were taken into account.

69 It is not clear from the ruling as to whether the probative value of the evidence was assessed on the basis that the evidence would be relevant to the facts in issue as well as to credit. More likely, his Honour made the assessment on the basis that it was to be used only for the limited purpose which he would allow. The temporal gap between the occurrence of the asserted facts and the representations made by the complainant to BM and SY affected the reliability of those representations to some degree. That said, however, on the more limited basis of buttressing the credibility of the complainant and refuting any suggestion of recent invention the representations still had significant probative value. The common law had long recognised that in the absence of complaint evidence, there was a considerable risk that a jury would view the account of the complainant as false.[34] Further, appropriate directions were proposed to be given. In such circumstances, the threshold for excluding the evidence was high.

70 In the result, we are not persuaded that any unfair prejudice flowing from the introduction of the evidence would outweigh the probative value of the evidence so as to require its exclusion.

71 On the specific charges the subject of the first indictment,[35] the appellant was sentenced as follows:

Charge 1 - 9 months' imprisonment (6 months cumulative)

Charge 7 - 3 years' imprisonment (15 months cumulative)

Charge 9 - 3 years' imprisonment (15 months cumulative)

Charge 11 - 3 years' imprisonment (15 months cumulative)

Charge 13 - 3 years' imprisonment (15 months cumulative)

72 The appellant was granted leave to appeal against these sentences on the sole ground that the total effective sentence of nine years and six months' imprisonment and the non-parole period of six years and four months' imprisonment were manifestly excessive.

73 The appellant submitted that the sentencing judge gave excessive weight to the importance of general deterrence and gave insufficient weight to his personal circumstances. The appellant's offending occurred during a 12 month period between 2003 and 2004 and then ceased. He was not convicted until 25 March 2011, seven years after the events. He had no prior convictions and had not committed any further offences in the intervening period. In those circumstances, it was submitted that specific deterrence was not an important sentencing consideration.

74 The appellant was convicted of serious sexual offences which involved a gross breach of trust, offending continuously over a 12 month period. He exhibited no remorse. The individual sentences of three years fixed on the charges of incest were well within a reasonable exercise of the sentencing discretion. As the appellant's conviction for rape is to be quashed he must be re-sentenced on the alternative charge of incest (Charge 6). We would impose a sentence of three years on Charge 6. We accept the respondent's submission that, having regard to the seriousness of the offences, the orders for cumulation were in fact merciful. Neither the total effective sentence nor the non-parole period fell outside the range of a sound exercise of the sentencing discretion. Accordingly, we would confirm all other individual sentences and the orders for cumulation, Charge 6 now being the base sentence, making a total effective sentence of eight and a half years' imprisonment. We would fix a non-parole period of five years and eight months.

75 On the second indictment, the appellant was convicted on one charge of production of child pornography. He was sentenced by the trial judge to nine months' imprisonment, to be served wholly concurrently with the sentence imposed for the offences in the first indictment.

76 He was granted leave to appeal on the following grounds:

1. The trial judge erred in that he failed to have regard to the principle of parity of sentencing as between co-offenders.
2. The sentence imposed was manifestly excessive in that it lies altogether outside the proper range of sentences available for offences of this kind, having regard to the particular circumstances of the offending and of the appellant.

77 On 7 September 2006, the appellant exchanged emails with his co-offender, HD, who described a female child engaging in sexual activity and referred to a link to a video clip of the sexual activity. The appellant and HD discussed having sex with a 13 year old girl in graphic detail and filming the experience. The email exchange constituted an offence under s 68(1) of the Crimes Act 1958.[36]

78 The appellant submitted that there is a manifest discrepancy arising from the excessive difference between the sentence imposed upon the appellant and that of his co-accused, HD who pleaded guilty in the Magistrates' Court to this and other child pornography charges. In April 2009, HD received a wholly suspended sentence of three months' imprisonment, together with a Community-Based Order of 18 months. Having regard to the more lenient sentence imposed on HD, the appellant submitted his sentence infringed the principle of parity.

79 The respondent submits that by making the sentence wholly concurrent, the trial judge took a practical approach to the sentencing exercise.

80 HD received a markedly lower sentence for more substantial offences. The trial judge was made aware of the sentence imposed on the co-offender. In his reasons, his Honour did not consider the sentence imposed on HD, nor did his Honour give any reasons to justify such a discrepancy. The disparity does engender a justified sense of grievance on the part of the offender or is otherwise such as to give the appearance that justice has not been done in the eyes of an objective observer.[37]

81 As Ground 1 is made out it is unnecessary to consider the ground of manifest excess. The sentencing discretion must be re-opened. We propose to resentence the appellant to three months' imprisonment. We would order that the sentence be served concurrently with the sentences imposed on the first indictment.

[1] The offences occurred on the following dates: Charges 1 and 2 - 1 June 2003; and 31 December 2003; Charges 4 and 5 - Between 1 August and 31 October 2003; Charge 7 - Between 1 August 2003 and 30 June 2004; Charge 9 - Between 1 August and 31 December 2003; Charges 11 and 13 - Between 1 August 2003 and 30 June 2004.

[2] Indictment Y00249861.4, ('the second indictment').

[3] This definition was substituted by s 5(1) of the Crimes Amendment (Rape) Act 2007.

[4] By s 4 of the Crimes (Sexual Offences) Act 1980, inserting the definition of 'rape' into s 2A of the Crimes Act 1958.

[5] Bernadette McSherry, 'Legislating to Change Social Attitudes: The Significance of Section 37(A) of the Victorian Crimes Act 1958' (Paper presented at the conference, 'Without Consent: Confronting Adult Sexual Violence', held 27-29 October 1992, Melbourne, 377).

[6] [1965] 3 All ER 684, 685.

[7] Crimes (Rape) Act 1991 (Vic) s 3.

[8] Ibid retained in s 36 of the Crimes Act 1958.

[9] Ibid Crimes Act 1958, ss 37(1) and 61 respectively.

[10] Victorian Law Reform Commission, Sexual Offences: Final Report (2004) 346.

[11] Crimes Amendment (Rape) Act 2007 (Vic) s 4.

[13] Parliamentary Debates, Crimes Amendment (Rape) Bill 2007, Legislative Assembly, 22 August 2007 (Rob Hulls, Attorney-General), 2859.

[14] [2012] HCA 10; (2012) 286 ALR 196, [25] (French CJ, Hayne, Crennan, Kiefel, Bell JJ).

[15] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117-18 (Barwick CJ).

[16] R v XY [2010] NSWCCA 181, [79].

[17] R v XY (2010) 79 NSWLR 629, [77]-[79].

[18] [ 2012] VSCA 164.

[20] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, [33]-[35] (Gleeson CJ and Hayne J); [45]-[47] (Gaudron and Kirby JJ); [56]-[59] (McHugh J) [89].

[21] R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, [20].

[22] Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 467-9; also see, eg, Jones v The Queen [1997] HCA 12; (1997) 143 ALR 52, 53_; Jones v The Queen_ (1997) 191 CLR 439, 453-4 (Gaudron, McHugh and Gummow JJ); Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145, 147 [4] (Gaudron and Gummow JJ); Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 305-6 [20] (Gleeson CJ and Hayne J).

[23] [1996] HCA 22; (1996) 186 CLR 427.

[25] (1999) 196 CLR 29, 7.

[28] (1997) 94 A Crim R 131, 139-40 (Hunt CJ at CL), 151 (Bruce J).

[29] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, [94]-[96].

[30] [2012] VSCA 268.

[32] This appears to be the view that was taken by James J in R v DWH [1999] NSWCCA 255, [37]-[38].

[33] Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452, [173]; R v Reardon [2002] NSWCCA 203; R v Selsby [2004] NSWCCA 381.

[34] R v Lillyman [1896] 2 QB 167, 170 (Hawkins J); Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145, 147 (Gaudron and Gummow JJ).

[35] Y00249861.1 ('the first indictment').

[36] As defined in s 67A of the Crimes Act 1958, 'child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity' (emphasis added).

[37] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 403.