1 I agree for the reasons given by Coghlan JA that the verdict on count 6 was not unsafe and unsatisfactory.

2 I agree with Coghlan JA that this was not a case of latent duplicity for the reasons he gives and I also would dismiss the appeal.

3 After two trials on which the jury had not reached verdicts other than by direction, the appellant was convicted on the charges set out below on 22 June 2012. On 29 June 2012 he was sentenced as also set out.

Indecent act with a child under 16 [Crimes Act 1958 s 47]

Incest [Crimes Act 1958 s 44]

Other orders: Serious sexual offender. Sex offender reporting for life.

4 Leave to appeal was given by Ashley JA on the following ground:

The verdict on Count 6 is unsafe and unsatisfactory in that the jury were invited to convict the [appellant] of an alleged act of sexual penetration (incest) in circumstances where that alleged act of sexual penetration (incest) could not be sufficiently distinguished from other alleged acts of sexual penetration (incest) said to have occurred in the 'same' way.

5 The complaint made under this ground is that there is insufficient particularity in the evidence of the complainant relating to this count such that any conviction was unsafe and unsatisfactory.

6 The count was one of incest involving penile penetration of the complainant's vagina. The complainant is the appellant's daughter. The count was the only count which was said to have occurred at the appellant's brother's house.

7 The defence case was that there had been no sexual contact with the complainant.

8 The appellant submits that the evidence of the complaint as to count 6 is imprecise. The complainant's evidence in chief was by way of the adoption of two VATE tapes. In those tapes the circumstances of count 6 were dealt with as follows.

There was this time - he used to do it all the time though, but I think it was mainly Grade 5 and 6, where he - I'd be like - I used to sleep with him at my auntie's and uncle's house and 'cos - 'cos I didn't have my own, like, bedroom there, I had to share a bedroom with him, 'cos I went there every second weekend anyway and I used to sleep with him and he would, like - I was always sleeping on my side and I'd be asleep and he'd come behind me and put his arm around me and try to, like, touch my boob and stuff and he would get really close to me and he would put his penis in between my legs and, like, near my vagina and stuff and I think there was one situation where he kind of put it half way up, except not really. But sometimes it hurt a little bit 'cos - and stuff and it just felt really uncomfortable and I didn't like it and stuff. And I think that was about all.

...

That wasn't the first time he'd put - - -?---Mm.

His penis near your vagina, is that - - -?---No, it wasn't - - -

What you're saying?---The first time.

Okay. What can you tell me about the first time?---Well, I can't really remember the first time, but I think it's one of the stories I've already told you.

Okay. Are you able to tell me where it - it happened?---It happened at my auntie's and uncle's house again.

And you think it's something that you've already told me about, that we're going to discuss in a minute?---Yeah.

Do you know where you were in the house?---I think I was in his bedroom.

So are you referring to that part where you said that - when you were in bed with him that he used to put his penis in between your legs?---Yep.

Is that the part that you think was the first time?---Yep.

...

Okay. Another thing you said, [JX], is that in Grade 5 and 6, you used to have to sleep with him at your uncle and auntie's house, is that right?---Yep.

And that was the same one at [address]?---Yeah.

And did your dad have to share a bedroom with anybody else there?---Nuh, just me.

Okay?---When I cam every fortnight.

And what type of bed did he have in his room?---I think it was a double bed.

And so generally when you go and stay with him, what day do you get there?---I would get there Friday after school and I would leave Sunday.

Okay. And so you said that when you would be in bed, he - you would sleep in the same bed with him?---Yeah.

And that you sl-, when you would sleep on your side, he would come and get in. What did you generally wear to bed when you stayed there?---Sometimes I wear, like nighties 'cos I don't really have pyjamas over there, so I just borrowed my cousins pyjamas and she had, like, nighties and sometimes I wore boxer shorts to bed and stuff.

Okay. So when you wore your nighties, did you ever wear anything underneath them?---Just undies.

Yep. And what did [Bartholomew] wear to bed?---Sometimes he would wear his boxers and I think there was - like, sometimes he'd just wear his jocks or something and I think there was one time where he didn't wear anything.

...

So before we had our break, we were talking about you sleeping in the same bed with [Bartholomew] and that was something that happened constantly, was it?---Yep.

And you said that you can recall [one incident] where [Bartholomew] came and put his penis in between your legs?---Yes.

What can you tell me about that?---It felt really weird and it felt like his penis was wet and stuff. And that just didn't feel right.

Okay. So in that [incident], can you remember if you were wearing any pyjamas on that night?---I think I was wearing a nightie, but I can't quite remember.

Okay. And so you said that you were sleeping on your side and he would come from behind?---Yeah.

So what did [Bartholomew] have to do to get his penis in between your legs?---He would kind of wiggle his bum around a little bit and - - -

And so - - -?---And try to get really close to me.

Okay. So when he put his penis in between your - your legs, what parts was his penis touching?---It was touching in between my legs and then it went up a little bit and kind of went near my vagina and stuff.

Okay. So when you say it 'went up a little bit' and went near your vagina, what can you tell me about that?---Well, like, this was my legs, his, like, penis went in there and then it went, like, up a little bit and that was, like, near my vagina and stuff.

Okay. So when his penis was touching your vagina, what was he doing?---He was just laying there and stuff.

Okay. So when it was touching your vagina, was it just touching and st-, had it stopped, like - or was it moving?---It was just touching.

Okay. So was it touching all your vagina part?---Yeah, pretty much.

Okay. And - and we've - looking at my diagrams, we've talked about the - the opening of the hole in our vaginas. Now - - -?---Yep.

Where can you tell me about where the penis was in relation to that?---That was kind of up the hole, sort of.

Okay. How far do you think it was?---Probably about one third, like before.

And how did that feel?---It felt - it felt really uncomfortable and I didn't like it at all.

So when he put his penis near your vagina, did you say anything to him?---No.

Okay. Did he say anything to you?---No. Well, he - he just said, like - stuff like, 'Goodnight sweetie,' and stuff.

Okay. So on this occasion when you've said that he's put his penis a - a little bit into your vagina, how long did he do that for?---He would basically do it the rest of the night.

Okay. So would it only happen once in a night?---It would happen - well, yeah, once in a night.

Okay. Alright, and I think you've said before - I've got written here sometimes you said it hurt?---Yeah.

Was that right? And what about - how did you feel afterwards? Was it so-, - - -?---Well, like - - -

What type of feeling?---Afterwards, I just, like, really needed to go to the toilet and stuff.

Okay. And you've - the things you've been telling me about have been happening since you were 10, is that correct?---Yeah. [1]

9 The complainant was cross-examined at a special hearing as follows,

You've said there was an incident where your dad actually put his penis into your vagina whilst you were in bed with him?---Yes.

What year were you when that happened? As in what grade at school?---He used to do it like all the time, so I can't really remember what grade I was in. I think it was five or six.

The specific incident that you told the police about, you said you can't remember when that specific incident was?---It was either Grade 5 or 6. That's all I can remember.

Can you tell us which house you say that specific incident was at?---He used to do it all the time, so I can't really remember if I told the one where it was at my auntie and uncle's house or the one in his unit.

Well, you've said the one at auntie and uncle's house. Does that assist you?---Yes.

So you said that you were in [Bartholomew]'s bedroom?---Yes.

And that bedroom is right next door to your aunt and uncle's bedroom; is that right?---Yes.

It's across the corridor from JJ's bedroom?---Yes.

And you say that you were both on your side in bed?---Yes.

Now in terms of the way you were lying, were you lying straight, like your legs, your arms, your body, everything all straight?---I was lying straight, but when he used to come up behind me I would always like put my legs up.

When you say 'put your legs up' what do you mean by that?---Kind of like curl up.

So bring your knees towards your chest?---Yes.

Would you put your arms around your knees to hold them in that position or would you just have your knees up?---I would kind of like put my arms like on my chest.

So you would have your arms on your chest and your knees towards your chest?---Yes.

And you say that he came up behind you and put his arms around you?---Yes.

Is that both arms?---I can't remember, but I think it was just - he put one arm around me.

Was that an arm underneath you or an arm on top of you?---An arm on top of me.

He was also lying on his side; is that right?---Yes.

And he was behind you and you were in front?---Yes.

Do you know whether he was straight or bent in the way he was lying?---His body was kind of like bent around to me, so his legs were up, but because he was like bigger he put his legs like just under my legs.

Was your back against his chest?---Yes.

You say that that's the position you were in when his penis went up your vagina?---Yes.

And do you say that his penis starts by going between your legs?---Yes.

And then it actually goes up the hole?---Yes.

He's got his one hand over the top of you?---Yes.

Do you know what the other hand's doing?---No.

No. When you wrote your notes for the police about this one, were you talking specifically about this incident, or were you talking generally about a lot of incidents. Can you remember?---I think I was talking specifically about an incident, but it would happen all the time, so I would also base it on generally what would happen, as well.

Was there anything else that - you say that you would curl up when he came up behind you?---Yes.

I take it that you were in your - whatever it was that you were wearing to bed?---Yes.

You still had that on?---Yes.

And you'd curl up?---Yes.

You'd bring your knees to pretty close to your chest and your arms in front of you?---Pardon?

You'd bring your knees to pretty close to your chest and your arms in front of you?---My knees weren't that close to my chest, but I would bring them up towards my chest.

But you still had your underwear on at that point in time, is that right?---Yes.

And he would come up behind you?---Yes.

And from that position he then put his penis between your legs?---Yes.

And the put his penis up you?---Well, like, I had a (indistinct) nightie on that night and sometimes I would wear like undies to bed and sometimes I wouldn't.

So when you told us before that you would wear underwear with your nightie?---Yes, I would but that, most of the time I would. But sometimes mum said it was good just to have like some nights without.

When you were talking to the police on tape, you said that this incident was the first time he put his penis near your vagina, do you remember saying that?---No, I can't remember.

Well, is that correct, that that incident was the first time that he put his penis near your vagina?---I can't really remember.

You said this incident in the bedroom happened in Grade 5 or 6?---Yes.

10 It is the reference in that evidence to the expression such as 'doing it all the time' which is said to give rise to the uncertainty.

11 It is submitted that the evidence falls into the category evidence described by the court in R v DWB:

The starting point is, of course, that an accused person is entitled to have any criminal charge brought against him or her properly particularised. Where the Crown alleges a course of conduct 'between dates', it will always be a question of degree as to whether the evidence led possesses sufficient particularity to enable the subject of the actual count to be identified. When the count is particularised on a 'first occasion' basis, the evidence must enable that first occasion to be distinguished from all others. [2]

Each of counts 2 and 3 and 6 and 7 were presented as acts of sexual penetration occurring at two separate locations. The complainant gave evidence of a series of sexual acts at each of these locations over an extended period of time. No attempt was made by the judge to isolate any one such allegation as being relied upon by the prosecution. There was, for example, no identification by the complainant of a first occasion. In the case of the 'Melbourne' counts, it may be that 'the first occasion' of intercourse could not be the distinguishing particular as it may have been the means of identifying the offence the subject of count 1. There was no attempt by either the trial judge or the prosecution to identify one such act as the offence charged. Nor was there any attempt by counsel for the accused to draw this defect to the attention of the trial judge. These failures by counsel on both sides contributed to the errors now conceded by senior counsel for the director. As a consequence of the lack of sufficient particularisation identified by the applicant on the appeal the applicant has not had a proper trial giving rise to a substantial miscarriage of justice on each of the counts specified in this ground.[3]

13 It is submitted on behalf of the respondent that when the evidence is examined in detail, there is a great deal of particularity about the count.

14 The respondent relies upon what was said by Neave and Redlich JJA in PPP v The Queen[4] and in particular what was said by Redlich JA:

The starting point is the proposition that for a trial according to law, the accused must be apprised not only of the offence with which they are charged but must have particulars of the act constituting the offence. These particulars are designed to serve a number of important purposes:

(1) to enable the accused to exercise the right to object to evidence on the ground of relevance;

(2) to permit the accused to know how the charge might be answered;

(3) to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;

(4) to enable the trial judge to instruct the jury properly as to the law to be applied;

(5) to ensure that there is a unanimity of view by the jury as to a specific act by the accused;

(6) in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;

(7) to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.

The first four purposes of particulars reflect the requirement that the accused must be afforded a fair trial. In the joint reasons of Gaudron and McHugh JJ in S v R they state that the rule against duplicitous counts rests upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. If the evidence reveals several possible occasions of offending, and the charge could relate to any one of these, the accused will be forced to defend himself in relation to each and every occasion that arises on the evidence which may fit the description of the act charged. The rule against latent duplicity, informed by considerations of fairness, is therefore enforced to ensure that the accused knows the 'particular act, matter or thing alleged as the foundation of the charge'. In S v R, Dawson J observed that because of the latent ambiguity, the accused was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi, the whole of the evidence being 'in effect, evidence of propensity' which could not be related to 'a specific offence upon an identified occasion'. Gaudron and McHugh JJ considered the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance. Brennan J dissented as he did not consider that the accused was prejudiced in countering the allegations as he could have no more successfully impugned the complainant's imprecise evidence had it been confined to a single act than if it could apply to several acts as there was nothing distinctive about the evidence of any act by which to differentiate it from any other occurring within the periods specified in the indictment apart from the order of its occurrence.

The final four purposes inform the obligation to avoid duplicity. The distinction in the purposes which particulars serve has sometimes assumed importance in the cases concerned with resolving questions of latent ambiguity.[5]

15 In this case I accept that there was a good deal of particularity. It was a case where the evidence was led and referred to as a 'particular occasion'. Counsel for the appellant used that expression in cross-examination. The place was identified, the type and circumstances of the offending was described in detail and the count was reasonably distinguished from all the other charged conduct on the presentment.

16 The other consideration in relation to the count was that there was evidence, given for the first time at the trial, from one Shane Riddoch that the appellant put the complainant to bed in the appellant's bed at the address in question on a handful of occasions. That evidence was at odds with the evidence given by the appellant at the first two trials. The prosecutor relied upon the evidence going to the appellant's credit on the other issues in the trial.

17 Perhaps more importantly on the issue of what the complainant said had occurred at that address, it was supported at least to the extent that the appellant, for the first time in the trial proceedings the subject of this appeal, admitted that there were occasions on which he had shared his bed with her.

18 I accept the respondent's submissions. The one aspect of the case which bears examination is whether there is sufficient particularity for the accused to make a plea of autrefois convict in accordance with the last principle set out in PPP v The Queen.[6] I do not see how the prosecution could mount some other count arising out of the conduct generally alleged to have occurred at the address within the alleged two year time frame without there being a fundamental change in the available evidence. Any doubt as to particularity would have to be resolved in favour of the appellant.

19 I am satisfied that there are sufficient details for the appellant to be able to defend the count against him.

[1] Question & Answer 51, 152-160, 259-268 & 276-299.

[2] [2008] VSCA 223; (2008) 20 VR 112 [14].

[3] [2009] VSCA 291; (2009) 26 VR 526 [77].

[4] [2010] VSCA 110.

[5] Ibid [42]-[44] (citations omitted).