Court of Appeal (Vic)|2014-12-17|Before: Nettle JA, Redlich JA

The applicant relies on documents 55, 39, 40 and 59 in order to establish that fact.

58 In the Crown's submission, none of those documents is admissible evidence of the fact that a Psychiatrist had diagnosed CB as suffering from Borderline Personality Disorder.

59 We disagree. Document 55 is a Goulburn Valley Health Progress/ Continuation record for CB pertaining to her presentation on 20 May 2010 after consuming 100 millilitres of 'grape wine' and superficially cutting her forearm with a broken beer bottle 25 times. It includes a note:

Insight: Aware of Borderline Personality Disorders as handed down by psychiatrist & role of treatment.

Emotional dysregulation & treatment strategies for same discussed. Disadvantages of substance misuse & overdose reiterated

ASSESSMENT

Borderline Personality Disorder as handed down by Consultant Psychiatrist.

60 The Crown conceded that it may reasonably be inferred the author of the document was informed of the diagnosis directly or indirectly by the consultant psychiatrist who made the diagnosis.

61 Document 39 is a Case Details Report dated 21 October 2010 of the Goulburn Valley Family Services. It contains the entry:

22/10/2010 Fri 10:01 AM - Clare Rich

Kids removed by CPU May 2010, [CB] has been into CAMHS [scil. Child and Adult Mental Health Service] in Melbourne on 2 separate occasions, she has been diagnosed with Borderline Personality Disorder and has been placed on medication but is not compliant because when she is not at home, she does not have her medications. [CB's mother] is feeling drained from [CB's] behaviour.

The Crown contends that the entry does not amount to a representation that the diagnosis was made by a psychiatrist, and thus is inadmissible.

62 In our view, it is readily apparent that the diagnosis referred to in document 39 is the same diagnosis as is referred to in document 55 and hence it may reasonably be supposed that the author of the document was informed of the diagnosis directly or indirectly by a person, most probably CB's mother, who had or might reasonably be supposed to have had personal knowledge of the diagnosis.

63 Document 40 is a Goulburn Valley Family Services Case Details Report dated 14 December 2010 that:

CB has been diagnosed with Borderline personality disorder by Box Hill CAMHS.

The Crown contends that the entry is not a representation made by a psychiatrist.

64 In our view, it is readily apparent that the diagnosis referred to in document 40 is the same diagnosis as is mentioned in Document 55, and thus that the entry in document 40 is a representation that the diagnosis was made by the Box Hill CAMHS consultant psychiatrist. For the same reason, it may reasonably be supposed that the author of the document was informed of the diagnosis directly or indirectly by a person, most probably CB's mother, who had or might reasonably be supposed to have had personal knowledge of the diagnosis.

65 The second disputed representation is Dr Gibbs' statement in his report dated 3 July 2012, that:

Complainant CB's mother refers to 'Multiple Personality[18] - where this is relevant - as this disorder is associated with the phenomenon of 'repressed memory'.

66 The applicant relies on Document 61 as establishing that CB was suffering from 'Multiple Personality'. Document 61 is comprised of Eastern Health Progress Notes for 4 April 2010 and relevantly included the following entry:

[CB's mother' feels she [CB] has a kind of 'multiple personality disorder' - described difficulty controlling emotions, anxiety and panic attacks, takes XANAX or Valium prescribed by GP.

67 The Crown contends that, because CB's mother is not an expert in psychiatric disorders, she was not qualified to express an opinion as to whether CB was suffering from multiple personality disorder and therefore that the representation of her opinion comprised of the disputed entry is not admissible under s 69(2) of the Evidence Act.

68 We agree. A representation of opinion is not admissible under s 69(2) unless it complies with the requirements for admission of opinion evidence prescribed by ss 76 to 79.[19] A lay opinion as to whether CB was suffering from 'Multiple Personality' would not be admissible under any of ss 76, 77 or 79.

69 The opinion might be admissible under s 78 if it were properly to be regarded as based on what CB's mother saw, heard or otherwise perceived of CB's mental state and evidence of her opinion were necessary to obtain an adequate account of her perception of CB's mental state; in other words, in this context, if it were necessary to obtain an adequate account of what CB's mother saw heard or otherwise perceived of CB's symptomology. As it stands, however, it does not appear to us that Dr Gibbs treats the opinion in that fashion. As we read his report, he adopts CB's mother's description of CB's suffering from multiple personality as if it were a competent clinical diagnosis of multiple personality disorder; and, on that basis, he then goes on in the report to expatiate on the forensic significance of the possibility that CB was suffering from that disorder. If that is so, the representation of opinion would not be admissible under s 69(2).

70 If, however, it were established in a voir dire that Dr Gibbs' report is properly to be understood as treating CB's mother's opinion as no more than a short hand descriptor of particular observed symptoms; and, in Dr Gibbs' view, the existence of those symptoms bespeaks the reasonable possibility of Multiple Personality Disorder properly so called, the representation may be admissible under s 69(2) by reason of s 77.

71 The Crown further contended that, even if any of the representations as to CB suffering from Borderline Personality Disorder were admissible, there had been no substantial miscarriage of justice by reason of their exclusion. Counsel for the Crown submitted that, in the absence of evidence from the psychiatrist who had formed the diagnosis - and it was apparent at the time of trial that he or she could not be located - Dr Gibbs' opinions as to the effect of that disorder on CB's credibility and reliability would have had very little relevance or probative force.

72 We disagree. To adopt and adapt the language of Kirby J in rejecting a similar submission in Farrell v The Queen:

Although this was a strong circumstantial case for the Crown ... the prosecution case depended substantially, from first to last, on the complainant. The exclusion of expert evidence ... relevant to the jury's approach to the complainant's testimony, was therefore very important. The jury may have reached their conclusion without feeling any need to rely on psychiatric testimony. But for all that this Court knows, they may ... have had doubts about the complainant's veracity but put those doubts to one side where they would not have done so had the expert evidence of established psychiatric conditions been allowed in full and its use properly explained to them. It cannot be said that the appellant's conviction was inevitable had the evidence been properly admitted and explained.[20]

73 Notwithstanding Dr Gibbs could only depose to the possibility that CB may have suffered from Borderline Personality Disorder, and therefore it was possible that it had detrimental effects upon the reliability of CB's testimony, it is not possible to say that, if the jury had had the benefit of Dr Gibbs' opinions as to CB's mental condition, the possible effects of it on the reliability of her testimony, and proper directions as to how they might and might not use that evidence, the jury would nonetheless have been bound to convict.[21]

CA: Ground 5 - Cross-examination as to complainant's sexual history

'The learned judge erred in failing to allow cross-examination of CA pursuant to s 342 of the Criminal Procedure Act 2009 in relation to her prior sexual history where:

(a) she displayed sexualised behaviour prior to the crimes alleged against the applicant;60

(b) she lived with [F] for three days a week from the ages of 6 to 7 and a half, a person who had a prior criminal history for abusing his 8 year old stepdaughter both before and at the same time of the alleged crime;

(c) Dr. Gibbs had opined of the likelihood of misattribution or confusion by CA.'

74 It was contended under ground 5 that the judge erred in refusing to allow cross-examination of CA pursuant to s 342 of the Criminal Procedure Act in relation to her sexual history. As we have already said at [51] and [52], we agree with that contention.

75 The application to cross-examine CA's sexual history was based on entries in the documents sought to be admitted as business records that CA had exhibited sexualized behaviour constituted of fondling a young man's penis in 1998; and, in 1999 pulling down her pants, saying to another child 'let's have sex with our fannys' and then lying on the other child and demonstrating the notion of having sex; and notifications concerning her grandfather in 1998 and contemporaneous co-habitation with F.

76 As has been seen, Dr Gibbs considered that such sexualized behaviour was a behavioural predictor from which it might reasonably be inferred that CA had at least been 'exposed to sexual conduct' productive of a mental disorder which may well have affected the reliability of her evidence that the applicant was the offender.

77 In those circumstances, we think that cross-examination should have been permitted in accordance with s 349 because it was directly relevant to the reliability of the complainant's testimony that it was the applicant who had assaulted her.[22] Potentially, the probative value of her evidence was high.

78 Possibly, to allow the cross-examination might have been productive of distress, humiliation or embarrassment to the complainant. But, in our view, the probative value of the evidence was such as plainly to outweigh those considerations. This evidence was not sought to be adduced as a means of damaging the complainant's credibility. As defence counsel was several times at pains to point out to the judge, it was not suggested that the complainant was doing less than her honest best to tell the truth as she knew it. The evidence, if admitted, would have gone to CA's reliability in that it would have shown that she had suffered from a condition which affected her ability properly to recall what had occurred. Given that the cross-examination was to be directed to events for which CA could in no way be regarded as responsible, we think that risk of the cross-examination arousing discriminatory belief, bias, prejudice, sympathy or hostility in the jury was slight. Given what was at stake, the need to respect CA's personal dignity and privacy had to yield to the applicant's right fully to answer and defend the charges which she made against him.

CA: Ground 6 - Cross-examination concerning exposure to F

The learned trial judge erred in:

(a) failing to allow cross-examination of CA or her mother regarding CA's exposure to [F] as a basis for misattribution;

(b) denying the applicant procedural fairness by excluding evidence notwithstanding that there was no application to exclude under section 135 of the Evidence Act, and no opportunity for submission from the applicant, and in so doing;

(c) causing a miscarriage of justice by enabling the prosecution to present its case where CA's self-mutilation and bizarre behaviour could be causatively linked to the crimes as alleged, and excluding other explanations.

79 For much the same reasons, we consider that the judge was in error in excluding cross-examination to show that F was a convicted paedophile and that CA's mother had allowed CA to stay at F's home in the period at and around the time of the offences alleged to have been committed by the applicant. The essence of the applicant's defence was that, because of the applicant's mental condition, she had wrongly attributed to the applicant, offences which had been perpetrated by someone else and most probably by F. The fact that F was a convicted paedophile and that CA had lived under the same roof as F at or about the time of the alleged offences were self-evidently facts relevant to the likelihood that F committed the offending for which the complainant wrongly blamed the applicant. Hence, to deprive the applicant of the opportunity of cross-examining CA on that possibility, and otherwise to prevent the applicant demonstrating that F was a convicted paedophile in whose house CA had stayed at the relevant time, was essentially to deny the applicant of the ability to present a major part of his defence. It was a substantial miscarriage of justice.

80 Under ground 7, counsel for the applicant contended that the judge erred in failing to give an unreliable witness warning in relation to CA under s 165(1)(c) of the Evidence Act based on her refusal to admit facts which were recorded in the subpoenaed documents, and upon her admission that, at the time of reporting the alleged offences, she may have believed that she had the ability to levitate and that, until she began taking medication, she was hearing voices which told her 'to end it all'.

81 The Crown's response was that, since the apparent unreliability was all based on the subpoenaed documents which the judge had refused to admit into evidence, there was no basis for contending that CA was unreliable and, therefore, no basis to warn the jury of that possibility.

82 It is sufficient to say of this point that, for the reasons already expressed, we consider that the judge should have admitted those aspects of the subpoenaed documents to which we have referred; had his Honour done so, there would have been a sound basis to suppose that CA was an unreliable witness; and such a warning would then have been necessary.

CA: Ground 8 - Admission of tendency evidence, failure to give propensity direction

83 This ground of appeal encompasses two complaints: first, that the trial judge erred in admitting the evidence of the applicant giving the complainant the gift of the gee-strings sometime after the alleged crimes as tendency evidence; and secondly, that there was a failure to give a propensity direction in relation to that evidence.

84 The applicant submits that the evidence relating to the gee-strings did not possess sufficient probative value to be admitted. Counsel for the applicant submitted that the evidence lacked cogency[23] and, even if accepted, did not necessarily carry with it an implication of sexual interest in the complainant on the part of the applicant. He pointed to the lack of solid evidence as to how long after the offending the gift was allegedly given, and argued that in the absence of such evidence it cannot be concluded that the evidence was of sufficient cogency to allow it to be admitted as tendency evidence. In substance it was contended that the evidence of the criminal acts was so far removed in point of time from the giving of the presents that it was inappropriate to have admitted the evidence.

85 At trial, the objection to the admission of the evidence was based upon the alleged inconsistencies between the complainant's and her mother's accounts of the giving of the gee-strings, particularly in relation to what was allegedly said by the applicant at the time, doubt as to what the present was and how many items there were; whether it was a one-off incident that caused 'unfair prejudice'; that the gift was given in the presence of the mother, that it was unlikely that the complainant would have kept them if they caused her anxiety; that the giving of the gift post-dated the offence; and that the evidence was not probative. Only the last of these matters was the subject of specific argument on appeal.

86 It has long been settled that acts revealing a prior sexual interest by an accused in a child, whether or not it gave rise to the commission of an offence, may be admitted as evidence in proof of charged sexual offences against that child. The 'guilty passion' of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed.[24]

87 The trial judge was, therefore, correct to allow the evidence of the applicant giving the complainant the gift of the gee-strings to be led as tendency evidence. Giving a child a sexually provocative garment, accompanied by a request that she try it on and wear it in his presence, was evidence which was powerfully suggestive of a sexual interest in that child on the part of the applicant. The point is elucidated in the following passage from Gentry (a Pseudonym) v The Queen:[25]

In the case of a single complainant, it is convenient to refer to the reasoning in JLS v The Queen concerning multiple events of sexual misconduct whether charged or uncharged. There, the only source of evidence was the single complainant herself. The appellant had contended that, because the evidence of the uncharged acts came solely from the complainant, the evidence did not have significant probative value and was not admissible as tendency evidence. The Court rejected that contention, stating:

Evidence by a complainant of uncharged sexual acts by the accused which are not remote in time from the act or acts charged and which are of the same nature as those charged will ordinarily permit probability reasoning that the offence or offences charged are more likely to have occurred. The cogency of evidence that the accused has previously committed sexual acts of a similar nature to the act charged with the same victim and for the same reason, needs no elucidation.

The appellant in JLS had also contended that the uncharged acts (hugs in a sexual manner and digital penetration) were not the kind particularised (such as rubbing, licking and penetrating the vagina) and could not therefore be acts capable of proving tendency. The Court said:

Tendency evidence given by the complainant may have very considerable probative value even though it is not identical with the acts constituting the offence ... Here the evidence of different sexual acts to those particularised on the five occasions had the capacity to show the applicant to have an ongoing sexual interest in the complainant. Such evidence also potentially demonstrated the particular modus operandi by which the applicant gave effect to his ongoing sexual interest.

The applicant sought to distinguish JLS before the trial judge on the basis that the risk of unfair prejudice was not regarded as great in that case because the complainant was the sole source of the tendency evidence. Here, in contrast, it was argued that the probative value of the seminal staining on the underwear is likely to be overestimated and so cause the jury too readily to accept other prosecution evidence and distract the jury from the issues at trial.

MR v The Queen also dealt with multiple charges involving a single complainant and different conduct. The prosecution in that case sought to lead evidence that photographs and a video that the accused had taken of his young daughter were admissible as tendency evidence on a further charge of indecent act with a child, with the tendency sought to be led as a sexual interest by the accused in his young daughter. The Court held that the evidence was so admissible with the photographs and the video 'capable of demonstrating that the accused had a sexual interest in his daughter and was prepared to act upon that interest'. Although the acts in question differed, the Court found that there was a 'commonality of acts manifesting and pursuing an unnatural interest in [the accused's] daughter'.

The common law has long recognised so-called 'guilty passion' evidence - now to be referred to as evidence demonstrating a 'sexual interest' - consisting of evidence that an accused has acted in a sexual way towards the complainant on one or more occasions as a type of tendency evidence. Such evidence may be admitted to prove that the accused had an improper sexual interest in the complainant and a willingness to express that interest. As was recognised in Velkoski, 'where all the tendency and charged acts relate to the same victim', the relationship between an offender and a victim may itself support tendency reasoning.

In cases involving a single complainant, generalised evidence of an accused's sexual interest in and sexual misbehaviour towards the complainant may have a highly probative value, and may legitimately contribute to an assessment of the probability of the charged acts having occurred. Such evidence is demonstrative of a specific tendency of the applicant to show a sexual interest in and commit sexual offending against a particular victim. The vice identified in Velkoski, in contrast, was the prosecution's reliance upon an offender's state of mind to cover the offender's general sexual interest or predilection in relation to a class of persons.[26]

88 As to the issue of the temporal proximity of the gift to the offending, raised for the first time on this appeal, the complainant, CA, gave evidence at trial that, although she was not sure of the date that she had been given the gee-strings, it was not too long after the commission of the offences. At the committal hearing, CA had stated more specifically that the incident with the gee-strings had occurred 'five or six months' after the sexual assaults, but that she was 'not exactly sure about the time'. In cross-examination, CA confirmed her evidence that it occurred within five to six months after the commission of the offences.

89 On appeal, counsel for the applicant, when pressed, conceded that if the period of time between the sexual offences and the giving of the gee-strings was no more than five or six months, the arguments based upon the lack of temporal proximity between the two events and resultant lack of probative weight would fall away. That concession was properly made. The evidence being to the effect that no more than five or six months had elapsed before the gee-strings were given to the complainant, there was sufficient temporal proximity between the events to warrant the admission of the evidence as tendency evidence.

90 Finally, before leaving this part of this ground, we note that Dupas v The Queen[27] had not been decided at the time of the trial. It has not been shown, however, that any matters raised by defence counsel at trial required the judge to exclude the impugned evidence on the grounds of reliability or otherwise.

Was there a need for an anti- propensity warning?

91 The applicant argues further that the judge ought to have given an anti-propensity warning. Such a direction in the case of sexual charges is usually to the effect that the jury should not reason that because the offender may have committed other sexual offences than that charged, he is the kind of person who was likely to have done so on the occasions charged.[28]

92 It is well settled that such an anti-propensity warning should be given in circumstances where there are multiple complainants and should be given whether or not their evidence is cross-admissible. It is also settled that where evidence of prior sexual conduct is to be used as context evidence and not to be used as guilty passion evidence or for tendency as now described under the Evidence Act, the trial judge is ordinarily duty bound to give an anti-propensity direction.

93 It has been settled for some time, too, that, where there is only one complainant and a number of charges and the prosecution seeks to rely upon other criminal conduct of a sexual nature involving the same complainant, the anti-propensity warning should also be given. Reference to the enunciation of this principle in two of the leading authorities will suffice. This Court said of uncharged conduct involving the same complainant in R v Vonarx:[29]

[T]he jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.[30]

94 Similarly in R v DCC,[31] Callaway JA said that a propensity warning should ordinarily be given where evidence of uncharged acts is admitted as relationship evidence. His Honour referred to the three components of the necessary direction, set out in his judgment in Grech,[32] in which Phillips CJ and Smith AJA concurred:

In my opinion the jury should have been told that -

(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it -

(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and

(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case.

(Point (b)(ii) in that summary is the propensity warning.)[33]

95 These principles have often been repeated in more recent decisions of this Court. Anti-propensity warnings have been required because the evidence discloses a propensity to commit other offences than those charged. The danger thus arises that a jury may treat such evidence as disclosing bad character and hence disposition to commit such offences. On that basis, the applicant contends that the kind of direction discussed in Grech[34] and R v Vonarx,[35] which was contemplated by the trial judge but ultimately never given, ought to have been given.

96 Part (b)(i) in the passage from the judgment of Callaway JA in Grech which we have set out above, was said to be necessary where the prosecution was seeking to prove that there was an ongoing sexual relationship between the complainant and the accused and a need to show the context in which the offending occurred. Whatever its intendment, however, that part of the required direction cannot be understood to mean that the evidence of relationship has no probative value in proof of the charged acts. It would be preferable, therefore, if that form of direction were not employed.

97 Evidence of an accused's prior sexual interest in the complainant, described in these authorities as relationship evidence, is admitted under the Evidence Act because it can rationally affect the jury's assessment of the probability of the existence of a fact in issue,[36] namely, whether the accused committed one or more of the charged acts. It is a form of circumstantial evidence tendered in proof of an ongoing relationship that existed at a time that was sufficiently proximate to the charged acts. A sexual interest in the complainant may also be relied upon as a form of tendency evidence. In either way, as the above passage from Gentry shows, the evidence may be relied upon as making it more likely that the accused committed the charged acts. As the prosecution tendered the evidence of the applicant's subsequent conduct as evidence of an ongoing sexual interest in the complainant after the time of the charged acts, it became part of the evidence relied upon in proof of the charged acts. Thus, the Grech direction would not have been appropriate.

98 Despite the line of authority to the contrary, in our opinion, there is also a real question as to whether an anti-propensity warning is necessary or appropriate in the case of one complainant, even where the evidence in proof of an ongoing sexual interest includes uncharged acts of a criminal nature. The acts are relevant because they disclose a particular state of mind by an accused towards that complainant, namely a sexual interest in that complainant and a willingness to act upon that interest. That is evidence of propensity which permits tendency reasoning. It has long been allowed into trials because it is propensity evidence which by its nature has a particular cogency. It seems to us that to give an anti- propensity direction to the jury that they may not use that evidence to reason that he is the 'kind of person' who was likely to have committed the acts charged, will serve only to confuse the jury. This aspect of the Grech direction will be difficult, and perhaps impossible for the jury to reconcile with the direction that it is the accused's interest in and relationship with the complainant which makes it more likely that he committed the charged offences. For that reason it appears that the model direction in the Charge Book[37] no longer speaks in terms of a 'kind of person' warning. We also observe in passing that the need for a Grech direction in a case involving a single complainant, even where there is evidence of uncharged acts led as tendency evidence in proof of a sexual interest in that complainant, was regarded only as 'preferable' in R v DCC.[38]

99 In this case, however, it is not necessary to resolve the question whether the Grech direction is appropriate in the case of a single complainant and uncharged acts. The impugned evidence was not evidence of the commission of any criminal offence and was not therefore an uncharged act. The danger flowing from proof of other criminal conduct did not arise. If the jury accepted the evidence that the applicant gave the complainant the underwear in the circumstances alleged, there was no impermissible use that the jury could make of that evidence. The jury could treat the evidence as disclosing only a special interest in the victim and, on that basis, reason that this disposition increased the likelihood that the charged offences were committed. No risk of an impermissible use arose. A Grech direction was not required.

100 Further, the judge's direction to the jury concerning the impugned tendency evidence was extensive, and included directions as to how the evidence was not to be used. The judge instructed the jury that they must not use the evidence to reason that if the applicant did give the complainant the gee-strings 'he must therefore have committed the offences charged'. The jury were also told that the impugned evidence must not cause them to 'close ... [their] ... mind[s] against the accused or cause ... [them] ... to pay less attention to the other evidence'.[39] As to the way in which the evidence could be used, the judge stated that:

If you accept the evidence [about the [g]-strings]...you may infer that [the applicant] had this sexual interest and you may further infer that it makes it more likely that [the applicant], if he has that sexual interest, committed the offences, the sexual offences that he is charged with.

101 The foregoing directions, when examined in the context of the relevant section of the charge, could not have left any scope for the jury to use the evidence in an inappropriate manner. Although defence counsel took a great many other exceptions to the judge's charge and was otherwise scrupulous in attempting to ensure fairness to her client, no exception was taken at trial to this aspect of the judge's directions.[40]

'A miscarriage of justice occurred by reason of ostensible bias.'

103 In the case of CA, it was contended under ground 9 and, in the case of CB, it was contended under ground 4 that the judge had caused a substantial miscarriage of justice by refusing to recuse himself for ostensible bias. In the case of CA, the ostensible bias was said to have been evidenced by:

(i) The judge raising with the prosecutor whether the evidence of the applicant having given CA the gee-strings was to be adduced as tendency evidence and, when the prosecutor said that it would, by the judge suggesting the form of the tendency evidence notice to be given by the Crown under s 97(1)(a) of the Evidence Act.

(ii) The judge suggesting to the prosecutor, in anticipation of defence counsel's application under s 343 of the Criminal Procedure Act for leave to cross-examine CA as to aspects of her sexual history and to adduce the opinions of Dr Gibbs, that the Crown obtain a further proof of evidence from CA as to her response to the matters dealt with in Dr Gibbs' opinions.

(iii) The judge taking objection when defence counsel sought to cross-examine CA as to the medication she was taking when at high school.

(iv) The judge taking objection when defence counsel sought to cross-examine CA on her involvement with the DHS because, the judge said, it involved a 'pejorative concept' suggesting that CA had been a 'wayward' and 'uncontrollable' child.

(v) The judge suggesting a remedy for missing prosecution evidence on a charge to help establish the charge.

(vi) The judge prohibiting cross-examination of CA as to her involvement with F.

(vii) The judge describing CA as 'stoic' when he discharged the first trial jury after defence counsel had attempted to cross-examine CA concerning F, and the judge referring to the applicant as a 'paedophile'.

(viii) The judge suggesting that evidence of the applicant visiting CA and hugging her, and of CA pulling away, should be led as context evidence.

104 The test for ostensible or apparent bias is firmly established. As the plurality said in Michael Wilson & Partners Ltd v Nicholls:[41]

It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide...

As the plurality in Johnson v Johnson explained, '[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.[42]

105 We propose to take each of the matters relied upon as establishing ostensible bias and measure them against that test.

106 Having regard to the relevant passages of the transcript as a whole, the applicant contended that the judge's approach to the gee-strings evidence and its significance as tendency evidence should be viewed as overly enthusiastic.

107 We do not think that there is anything in the way in which the judge dealt with the gee-strings evidence which suggests that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

108 As emerges from the transcript of the discussion between defence counsel and the judge when the issue first arose, the fact was that the Crown had always intended to tender the gee-strings evidence, the defence had long been on notice of the Crown's intention and the defence had not raised any objection to the tender. The judge came into the matter late and, upon reading the materials, almost immediately discerned that the only relevance of the gee-strings evidence was as tendency evidence; and that if it were tendered, his Honour would need to direct the jury appropriately on the tendency which the evidence was said to establish and of the use which the jury could and could not make of evidence tendered on that basis. In order to ensure that there were no mistakes and no risk of miscarriage, the judge enquired of the prosecutor in advance of the empanelment of the jury whether the basis on which the Crown was proposing to adduce the gee-strings evidence was as tendency evidence and, when the prosecutor responded that it was, the judge alluded to the need for the Crown to give a notice or alternatively persuade him that he ought waive that requirement. The judge added that it appeared the defence were under no illusions as to the relevance of the evidence, and therefore that the form of tendency notice should simply state that the evidence was adduced as tendency evidence to establish the applicant had a sexual interest in CA at or about the relevant time, which made it more likely that he had committed the offences charged, rather giving what the judge termed the Crown's pro forma tendency notice. Consistently with that suggestion, the Crown subsequently gave a notice in the form proposed.

109 When it is considered, as the judge pointed out to defence counsel at the time, that the defence did not object to the gee-strings evidence, its only relevance was as tendency evidence and that the judge was bound to direct the jury as to how they might use and not use that evidence, there is no question that the judge was right to move as he did to establish clearly and without further delay the basis of tender and the provision of notice in accordance with s 97.

110 In those circumstances, we do not consider that a fair-minded lay observer might reasonably apprehend from the way in which the judge dealt with the gee-strings evidence that his Honour might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. To the contrary, we think it more likely that the fair-minded lay observer would derive confidence in the judge's impartiality from the manner in which his Honour went about preventing a significant potential for miscarriage of justice.

(ii) Suggesting that prosecutor obtain a further proof of evidence from CA

111 When the judge first suggested to the prosecutor that he obtain a proof of evidence from CA concerning her response to the matters dealt with in Dr Gibbs' opinions, he told the prosecutor that he did so because he wished to consider it in advance of any cross-examination of the complainant so that defence counsel would know exactly how the case would unfold. His Honour went on to explain that he considered that, depending on the complainant's reaction to Dr Gibbs' suggestions, the Crown might be able to argue that Dr Gibbs' suggestions did not have substantial relevance and thus, we infer, that his Honour might refuse leave to cross-examine on the matters the subject of Dr Gibbs' suggestions on that basis. Later, his Honour added that the proof might also assist him in deciding whether, in view of the embarrassment and indignity which CA might be caused by reference to such matters, he should refuse leave to cross-examine on that basis.

112 When the judge then asked defence counsel whether she had anything to say about that, she replied that she was concerned that the judge was getting too involved in the running of the prosecution case. The judge replied that he could not see that he was involving himself in the prosecution case because at each point he had told the prosecutor it was a matter entirely for the prosecutor.

113 Plainly enough, the judge's suggestion that the prosecutor obtain a further proof of evidence from CA concerning the matters dealt with by Dr Gibbs went beyond the degree of involvement ordinarily to be expected of a judge in formulating bases for exclusion of evidence sought to be adduced by an accused. But, as the exchange between the judge and the prosecutor ultimately reveals, the judge was concerned to ensure that he be apprised of all relevant factual considerations in advance of the anticipated s 343 application to adduce Dr Gibbs' opinions, as opposed to finding means to exclude it. That could not fairly be regarded as indicative of bias.

114 Moreover and more importantly, as also appears from the exchange, his Honour was motivated as much as anything by an intent to decide the matter as quickly and completely as he could, rather than proceeding on a piecemeal basis, and thereby to ensure that defence counsel knew as early as possible the way in which the trial would proceed. The applicant cannot legitimately complain about such an intention.

115 Consequently, we do not think that a fair-minded lay observer might reasonably apprehend, from the way in which the judge suggested the prosecutor obtain the further proof, that the judge might not bring an impartial and unprejudiced mind to the resolution of the s 343 application or the admissibility of Dr Gibbs' opinion.

116 Perhaps, what the judge said to the prosecutor about the considerations relevant to his Honour's decision on any application for leave for leave to cross-examine and to adduce Dr Gibbs' opinions implied that he had already formed some tentative views about the considerations likely to prove material. But, even if that were so, given the context and manner of his Honour's observations, we are not persuaded they suggested an objectionable degree of prejudgment of the issues, still less unwillingness to listen to and be influenced by the arguments and evidence yet to be considered.

(iii) Taking objection to cross-examination of CA on medication

117 The judge's objection to cross-examination on the medication taken by CA arose while defence counsel was asking CA a number of questions about matters indicative of a behavioural disorder of the kind suggested by Dr Gibbs. Having extracted concessions from CA that, at around the same time that CA told her mother something sexual had happened, she said she believed she had an invisible friend and, possibly, that she thought she could levitate; she engaged in self-harm; she was under care for depression; and she had heard voices until she was given 'depression pills', defence counsel asked CA what medication she was taking in high school. Before CA could answer, the judge interjected with a question: 'What is the relevance of that?'

118 After the jury had been sent out, that led to the following exchange between the judge and defence counsel:

HIS HONOUR: What's the relevance of what she was taking?

COUNSEL: Your Honour, in relation to the medication, I probably should have been more specific. I meant psychiatric medication. I have just realised now as the jury left the room I probably didn't mention the word, 'psychiatric'.

HIS HONOUR: She said she took some depression pills, we heard that.

COUNSEL: I don't know whether she has taken anything else. I don't know whether she was taking anything that may have affected her, the reliability of her evidence when she made the complaint.

...

HIS HONOUR: You are concerned, are you, that she was on medication, and if so what, at a time that she makes the statement to the police?

COUNSEL: At the time she gives versions of events throughout her high school years. But I'll re-consider the question - - -

HIS HONOUR: Thank you. I'll give you some time to do that - - -

COUNSEL: Thank you.

HIS HONOUR: Because I can't at the moment, apart from the fact that you have elicited evidence legitimately, because she said it to you that she was on depression pills - - -

COUNSEL: I just don't know whether she was on anti-psychotic medication or what was happening, or whether she was seeing a psychiatrist or.

HIS HONOUR: If she was it may be a confidential communication, that we should have to embark upon [sic] you being given leave to adduce the evidence.

COUNSEL: Yes. Your Honour, I'll reconsider that - - -

119 We do not understand what the judge had in mind when referring to a 'confidential communication' which would require an application for leave to adduce evidence about. There is no Victorian equivalent of s 126B of the Evidence Act 1995 (NSW). Regardless, however of what his Honour may have intended to convey, we think that defence counsel was perfectly entitled to cross-examine CA on whether and what psychotropic medication she was taking at the various times she gave different versions of relevant events throughout her time at high school, and perfectly entitled to ask CA whether she was under the care of a psychiatrist or other mental health care professional at any of those times. Doubtless, therefore, it would have been irritating and off-putting for defence counsel to have to deal with the objection.

120 That said, however, the terms in which the judge expressed the objection and the opportunity which his Honour expressly afforded defence counsel to take up the matter again after she had considered it, are opposed to his Honour having shut his mind to the possibility of allowing defence counsel to put further questions on the matter when and if she were disposed to do so. In the events which occurred, defence counsel did not come back to the issue before the jury were discharged.

121 In those circumstances, we do not accept that a fair-minded lay observer might reasonably have apprehended from the way in which the judge dealt with the cross-examination concerning medication that his Honour might not bring an impartial and unprejudiced mind to its resolution had the need arose.

(iv) Refusal to allow cross-examination as to CA's involvement with DHS

122 By way of introduction to cross-examination of CA on the subpoenaed DHS records on matters relating to her mental state at relevant times, defence counsel put the following question to CA and received the following answer:

COUNSEL: [CA], the Department of Human Services have been quite involved with your Mum and you[r] family, haven't they? --- I guess so.

HIS HONOUR: Just bear with us for a moment, Ms - where is this going...

COUNSEL: Your Honour, in relation to the relevance of this evidence, [CA] has had a troubled background, she has trouble with her father, she has had - her mother has lived with [F], for example. She's had a lot of problems. The Department of Human Services have been involved with [CA] and her family. Now - - -

HIS HONOUR: What's it got to do with this case?

...

COUNSEL: The relevance, your Honour, is this, that is that the - if the jury might - if the jury have an understanding of where [CA] has come from, the context of her life, the fact that it has been a very troubled life.

HIS HONOUR: Yes.

COUNSEL: They might think that, or be of the opinion that the reason that she is behaving the way she is behaving, cutting and the rest of it is because of her background not because of [what] the accused has done to her. Because right now they don't know anything really about her background. I'm not going to go into a huge amount of detail, but I do want to be able to put to her that the department has been involved.

HIS HONOUR: But it leaves it so vague. The department has been involved is a pejorative concept it seem[s] that might make aspects of her life - the wrong slant on it. That is, may be a sense that the Department of Human Services had become involved in wayward children's lives and uncontrollable children's lives and that's a concept that would not be based on any evidence and would be a prejudice that would be unfair to her. So to just simply say the Department of Human Services have been involved in your life just allows things to be too speculative.

What is the point you're driving at? Are you just saying to her, 'Look, you said that you were cutting and all those sorts of things, that's as a consequence of all the difficulties that you've had in your life with your Mum and different partners and the fact you don't get on with your stepfather and the fact you don't get on with your mother'? Why don't you say that to her, what's wrong with that? Then you get to the point where, I think you're driving at fairly - - -

COUNSEL: Just she's had a troubled life.

HIS HONOUR: That's not her fault. That's essentially - it's not her fault.

COUNSEL: No, it isn't her fault.

HIS HONOUR: Well that's why I think there is a risk that - just suggesting the Department of Human Services has been involved in your life lays it potentially open for a prejudicial view of her to come out that it's because she's wayward.

COUNSEL: Well your Honour - I'm not in a position to say whether she's wayward or not wayward, but it would certainly appear from the Department of Human Services' material that she has had serious problems. She has been drinking, she has been cutting, there has been a lot of things that have been happening to her.

HIS HONOUR: You're entitled to ask her those things if you think it substantially affects her credit, that is that if she's cutting you want to neutralise that it might be because of the effect of the crime upon her, that's legitimate. It's a rebuttal proposition from re-examination you're anticipating and rightly so, but it can't be done as such a generalised thing. When you've got the material, just put it to her.

COUNSEL: I was just going to - sorry, your Honour. I was just going to introduce it. That's the way I was going to introduce it, but I can go about it another way, it's fine.

HIS HONOUR: I often think that the introductory questions are the ones that get us into difficulty in having a debate about something that we don't need to, because if you'd said to her 'None of this cutting business has got anything to do with Mr Lancaster, it's all to do with other things?' she'd be able to tackle it. It's legitimate. I don't say you have to put it in that way, but I'm not allowing a generalised proposition about the Department of Human Services.

COUNSEL: No, all right. I'll cut straight to - -

HIS HONOUR: Yes, get to - the point is something should be on the page of every cross-examiner perhaps, but anyway we'll bring the jury in. Are you ready to go?

COUNSEL: Yes.

124 In our view, the judge's interjection was unwarranted. There was nothing improper or unfair about counsel asking an introductory question as to whether CA had been involved with the DHS. It was a natural and effective introduction to the matters about to be covered.

125 Contrary moreover to the judge's view, defence counsel was not required to frame her questions in a manner which accorded to the judge's perception of what would do least damage to the credit and reliability of CA's testimony. On the contrary, counsel was entitled, if not bound, to attempt fully to explore these issues. It was not unfair for counsel to attempt to demonstrate that the extent of CA's delinquency and mental disorder was of sufficient a scale as to attract the sustained attention and intervention of the DHS (as appears from the subpoenaed document to have been the case). Indeed, for counsel not to adduce evidence of the fact and extent of the DHS' involvement would have left the jury substantially under-informed of something which was critically directed to the centrepiece of the defence case. Within the confines of fairness, counsel was entitled to pursue these matters without feeling the need to apologise to the judge. She should have been permitted to continue with her cross-examination as to the nature and extent of CA's involvement with the DHS as she sought to do. The judge's intervention was an error.

126 So to err, however, is not the same thing as manifesting an intention not bring an impartial and unprejudiced mind to its resolution had the need arose. All judges make errors and, given the nature and complexity of the task, they are never more likely to do so than in the course of a criminal trial. But, ordinarily when such errors are made, they are made in the course of what objectively should appear to a reasonable informed bystander to be the judge doing his or her best to act fairly and impartially. Here, that appears to us to have been the case.

127 The point about evidence to prove a charge arose in the course of a discussion between the judge, the prosecutor and defence counsel as to an agreement between counsel that numbered extracts from the subpoenaed documents could go to the jury and, as the judge put it, that the jury should accept that CA had seen 'these people on these times and these are the notes from the files'.

128 There was then the following exchange between the judge and counsel:

HIS HONOUR: That might get us some of the way to having, if we need documentation before the jury, if she [CA] doesn't agree with it. But it has another aspect to it, one of them does in particular, because you [defence counsel] put it to her [CA] that she said something to someone about digital rape.

DEFENCE COUNSEL: M'mm.

HIS HONOUR: To that point we had no evidence of a digital penetration, we now do [although] she [CA] didn't necessarily adopt it.

DEFENCE COUNSEL: No, she didn't.

HIS HONOUR: But if you say that it is - the document says it and it's a representation of her, then it's a representation potentially for - well it is for all purposes obviously, not just for the fact that she made it but for its truth, does that give rise to Count 4, which is probably not there [scil. established by evidence] at this point.

DEFENCE COUNSEL: Yes. Your Honour [she did] not admit that document.

HIS HONUR: Well you've read it to her and she - - -

DEFENCE COUNSEL: Yes.

HIS HONOUR: Anyway, think about all that, think about - - -

DEFENCE COUNSEL: She didn't agree with it anyway.

HIS HONOUR: She didn't, so should it be capable of admission in that way. I mean I don't want to complicate Count 4 in any way more, [the prosecutor] didn't follow it up, he hasn't made application pursuant to s 38 or 32, or any other provision that allows people to give evidence

PROSECUTOR: I'm not going to do that.

...

HIS HONOUR: It's a matter for you - - -

PROSECUTOR: No, it would be counter-productive in this case.

HIS HONOUR: It might be. It might be counter-productive, it might be, but I would have thought - anyway, I won't say what I think, you make the decisions, not me.

PROSECUTOR: Yes, I have made that decision, your Honour.

HIS HONOUR: Thank you. Two o'clock.

129 We see nothing in that which is suggestive of apparent bias. Defence counsel might have wished that, if the document went into evidence, it not be treated as some evidence of digital penetration. But she could hardly complain that the judge warned her of the possibility that it could be so treated. In turn, the prosecutor may have been irritated to be told that he could have sought to have CA treated as an unfavourable witness and thus to cross-examine her into admitting that she had alleged digital rape. But he in turn could hardly complain that the judge considered it appropriate to remark upon the possibility.

130 Possibly, the judge's intervention and observation were undesirable. They appear to have been the result of unnecessary verbalisation of what would better have remained unspoken judicial cerebrations: 'where the accused is represented by counsel, the judge's interventions in the process of the case are normally minimal.' [43]

131 Where a trial judge's intervention is not minimal but excessive and have disrupted the presentation of the defence case, the danger arises that it will be alleged that the judge has an ostensible bias against the defence. That complaint is made here.

132 But we do not think that a fair-minded lay observer might reasonably have apprehended from what occurred that the judge was prejudiced in favour of one side or the other.

(vi) Prohibiting cross-examination of CA as to her involvement with F

133 We dealt under ground 6 with the judge's refusal to permit cross-examination concerning CA's involvement with F. For the reasons earlier given, we consider that evidence regarding CA's mother's involvement with, and CA's consequent exposure to F, was admissible and of fundamental importance to the defence; and accordingly that cross-examination on those issues should have been allowed. In our view, therefore, the judge was in error in excluding evidence on the point and in discharging the first jury trial when defence counsel attempted to cross-examine CA about it. The extent of the error is demonstrated in the following passage of the transcript by the judge's berating of defence counsel for suggesting to CA that F, with whom CA agreed her mother was associating at the relevant time, was a convicted paedophile:

HIS HONOUR: It's not relevant. Whether [F] has prior convictions for sexual assaults is not relevant. If it is, then the only aspect that it has is to create an unfair prejudice to the Crown of the kind the jury would speculate that it may well be that [CA] has transferred all to [the applicant] conduct that was really [F's]. That's the problem.

...

HIS HONOUR: ... it became illegitimate when the cross-examination put to [CA] that [F] was in her life. [F] had a good deal of time with her and her mother and that [F] was a person of poor repute in the sense that he had prior convictions for interfering with his eight year old, I think it was, daughter.

The effect of that was to cause distress to the witness to a degree, stoic as she has been...

In my view, the evidence is not relevant, its only place is to create prejudice and to have the effect of raising speculative theories that there might have been transference of the offending onto [the applicant] when really there was another paedophile in the background.

134 Contrary to the judge's perception, the evidence that F was a convicted paedophile with whom CA's mother was associating at the relevant time, and thus to whom CA was exposed at the relevant time, coupled with the evidence of CA's mental state, was fundamental to the defence. Accordingly, defence counsel had every right to suggest to the jury there was a reasonable possibility that CA had wrongly attributed to the applicant, offences committed by F. Hence, for the judge to deny the defence that opportunity was a substantial miscarriage of justice.

135 But we are not persuaded that the judge's treatment of the matter was indicative of apparent bias. It is just that his Honour misconceived it's potential relevance while appearing to do his best to be even-handed.

136 The judge's reference to CA's stoicism adds nothing to what has already been said about the judge's decision to discharge the jury after defence counsel attempted to cross-examine CA concerning F.

(viii) Suggesting that evidence of the applicant visiting CA and hugging her, and of CA pulling away, should be led as context evidence

137 Finally, on this aspect of the matter, it does not appear to us that there is anything in the point that the judge characterised evidence of CA pulling away from the applicant when the applicant attempted to hug her, as context evidence. In that respect, the judge was correct. It was contextual circumstantial evidence and it was relevant and admissible as such.

138 In the case of CB, the contention of apparent bias was put on the basis that, because the judge had already decided in the case of CA that the DHS and other social and healthcare records relating to CA were not business records and, therefore, because Dr Gibbs' opinions as to CA's mental state (being based on the fact recorded in those records) were inadmissible, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension in the case of CB that the judge might not bring an impartial and unprejudiced mind to the question of whether similar social welfare and health care agency records relating to CB were business records and thus whether Dr Gibbs' opinion concerning CB's mental state (being based on the facts stated in those records) would be admissible.

139 Further, apart from the admissibility of the records as business records, the judge had held in the case of CA that Dr Gibbs' opinion as to CA's mental state was not admissible as opinion evidence, and had emphatically dismissed Dr Gibbs' opinions in terms that the idea of adducing evidence of the opinion 'just did not make sense'. Thus, it was contended that a fair-minded lay observer with knowledge of the facts might entertain a reasonable apprehension that the judge might not bring an impartial mind to the question of the relevance of Dr Gibbs' opinion in CB's case.

140 Counsel for the applicant relied in particular on the decision of this Court in Rozenes v His Honour Judge Kelly,[44] in which it was held that, where a judge had excluded the evidence of a proposed prosecution witness based on the judge's consideration of what he had seen and heard in an earlier trial relating to other related offences, and on the basis of committal depositions, and made strongly expressed findings concerning the proposed witness which were inimical to the prosecution case, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matters before him.

141 We do not consider that the same could be said in this case. The decision in Rozenes turned on adverse views of the proposed witness's credibility which the judge in that case had formed on the basis of the previous trial and depositions. The decision was also based in part upon the remarkably intemperate manner in which the judge expressed those views.[45] The Court in Rozenes expressly stated that it was not to be taken as deciding that no judge could hear two trials arising out of the same transactions or otherwise involving similar issues. As Mason J said in Re JRL; Ex parte CJL,[46] the ground of disqualification for apprehended bias is that the judge will not decide the case impartially or without prejudice, but rather than that he will decide the case adversely to one party:

There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.[47]

142 In Rozenes, this Court also referred with qualified approval the decision of the New South Wales Court of Criminal Appeal in R v Masters[48] in which it was said that:

The effect [of Mason J's pronouncement in JRL] was clear. The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party.[49]

143 Of course, so to state the principle is one thing and to apply it is another. As Gleeson CJ remarked in Australian National Industries Ltd v Spedley Securities Ltd (in liq),[50] it is impossible to apply the principles relevant to a determination of whether a judge has exhibited apparent bias without paying close attention to the particular circumstances of the case. Accordingly, an allegation of ostensible bias is perhaps more likely to succeed where what is in issue is a question of fact or the assessment of credit,[51] and particularly a determination of fraud,[52] than where, as here, what is in issue are questions of adjectival and substantive law pertaining to the admissibility of evidence. Indeed if all that is involved is a question of law, it is difficult to see that any possibility of ostensible bias could arise unless perhaps the judge expressed his determination in a manner which was so dismissive of the opposing view or otherwise in terms of such strength of conviction as to convey that he or she would not be disposed to adopt a different course regardless of further argument.

144 Ultimately, however, whether the issue be one of fact or law, where suspected pre-judgment of an issue is relied on as the basis of apparent bias:

...what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.[53]

And, consistently with the paradigm of the fair-minded lay observer, that test must be applied through the eyes of a non-judicial observer and without recourse to all the information that a judge or practising lawyer would have, and requires the identification of the information on which the decision is based.

145 We approach the matter accordingly.[54] As it appears to us:

CB's case is in relevant respects similar to CA's case.

The judge's ruling that the DHS and other social welfare and health care records were not admissible as business records might lead a reasonable observer of CB's case to conclude that the judge had a pre-conceived view that the records in CB's case were not admissible as business records.
The judge's ruling in CA's case that Dr Gibbs' opinions of CA's mental state and its possible forensic consequences was not admissible as opinion evidence might lead a reasonable observer of CB's case to conclude that the judge had a preconceived view that Dr Gibbs' opinions of CB's mental state and its possible forensic consequences was not admissible as opinion evidence.
The judge, however, made it clear to counsel in CB's case that he did not regard his ruling in CA's case as foreclosing the issue for the purposes of CB's case and that he was willing to entertain argument and to consider the issue afresh.
The judge also did not make any finding or observation adverse to the credit or reliability of the applicant, Dr Gibbs, or any other proposed witness in CB's case.

146 Taking all things into account, we do not consider that a fair-minded lay observer would have an apprehension firmly established on reasonable grounds that the judge's mind was so prejudiced in favour of the conclusion that the records were not admissible as business records and that Dr Gibbs' opinion was not admissible as opinion evidence that his Honour was not prepared to alter that conclusion irrespective of such arguments as might be advanced. The fact that the judge did not change his conclusion after hearing argument, is irrelevant.[55]

CA: Ground 10 - Admitting evidence of CA's reaction to applicant's hugging as context evidence

147 Ground 10 in CA's case repeats the contention earlier mentioned that the judge erred in treating and admitting evidence of CA's reaction to the applicant hugging her as context evidence. For the reasons earlier given, we reject ground 10.

149 In the result, we would allow the appeal in each case, quash the convictions entered below and order that a new trial be had.

[1] DPP (Vic) v Lancaster (Unreported, County Court of Victoria, Judge Mullaly, 11 July 2012) Ruling [30].

[5] Smith v Commissioner of Taxation (Cth) [1987] HCA 48; (1987) 164 CLR 513; Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47; Commissioner of Taxation (Cth) v Dixon [1952] HCA 65; (1953) 86 CLR 540; Commissioner of State Revenue v Politis [2004] VSC 126; Catterwell v Wright (1991) 56 SASR 581.

[6] Wilcox v Clarke & Co (No 2) [1895] VicLawRp 151; (1896) 21 VLR 752; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Gas Employees Industrial Union [1951] HCA 2; (1951) 82 CLR 267; Ryan v Triguboff [1976] 1 NSWLR 588; Day v Rugala (1978) 33 FLR 208; Melville v Mutual Life & Citizens Assurance Co Ltd [1980] FCA 114; (1980) 47 FLR 201; Australian Alliance Insurance Co Ltd v Australian Pensioner Advisory Service Pty Ltd & Blake, (Unreported, Supreme Court of Victoria, Ashley J, 28 June 1994).

[7] Re Eldersmede Pty Ltd and Ors and Commissioner of Taxation [2004] AATA 710; (2004) 56 ATR 1179.

[8] Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Volume 1.

[11] Australian Securities Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320, 365-6 [196]-[204] (Austin J); Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, 361 [17].

[12] Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352; Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303, [20]-[22]; Australian Securities Investments Commission v Rich, 365-6 [196]-[204] (Austin J).

[13] Regrettably, the Crown did not afford the trial judge the same degree of assistance.

[14] Subject to the rules against hearsay.

[15] R v ERJ (2010) 200 A Crim R 270, 276, applying R v Sadler [2008] VSCA 198; (2008) 20 VR 69, 77 [33]-[34].

[17] Ibid 322-3 [94]-[95]; see also 292 [9] (Gaudron J); 299 [27] (Kirby J). See also Audsley v The Queen [2014] VSCA 321, [47] (Maxwell P, Weinberg and Priest JJA).

[18] Eastern Health Progress Notes dated 4 April 2010.

[19] Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, 362-3 [18]-[19] (French CJ, Heydon and Bell JJ); 382 [77] (Gummow J).

[20] Ibid 301 [32] (Kirby J); see also 294 [15] (Gaudron J); 326 [101] (Callinan J) (citations omitted).

[21] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 481-2 [33]; Baini v The Queen (2013) 232 A Crim R 17, 19-21 [8]-[10].

[22] Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 322; R v Sadler [2008] VSCA 198; (2008) 20 VR 69, 77 [29]-[30].

[23] Citing Semaan v The Queen [2013] VSCA 134, [35]-[40].

[24] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376 (Dixon J); Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 631 (McHugh J); B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 602, 609, 610-1, 618; R v Beserick (1993) 30 NSWLR 510; R v Vonarx [1999] 3 VR 618.

[26] Ibid [24]-[29] (citations omitted).

[28] R v Grech [1997] 2 VR 609 ('Grech').

[34] [1997] 2 VR 609, 614 (Callaway JA). The judge ought to have directed that the jury could not find that, because the appellant had engaged in sexual conduct with his daughter on another occasion, that he was the kind of person who would have committed the offences charged.

[35] [1999] 3 VR 618, 625. The jury ought to have been told that the evidence in question could only be used to establish the existence of a sexual relationship between the complainant and the accused, not to show that he was the kind of person who would have committed the offences charged.

[42] Ibid 437 [31]-[32] (Gummow ACJ, Hayne, Crennan and Bell JJ) (citations omitted).

[43] Doggett v The Queen (2001) 208 CLR 343, 346 [1] (Gleeson CJ).

[44] [1996] VicRp 20; [1996] 1 VR 320 (Tadgell and Callaway JJA and Crockett AJA) ('Rozenes').

[50] (1992) 26 NSWLR 411, 413 (in diss. but not in principle) ('Spedley').

[51] Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 448 [72].

[52] Spedley (1992) 26 NSWLR 411, 422 (Kirby P); British American Tobacco Australian Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, 333 [145] (Heydon, Kiefel and Bell JJ) ('BATAS').

[53] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 100 (Gaudron and McHugh JJ) (emphasis added); BATAS [2011] HCA 2; (2011) 242 CLR 283, 305 [45] (French CJ) (in diss. but not in point of principle).

[54] BATAS [2011] HCA 2; (2011) 242 CLR 283, 305 [45] (French CJ).

Lancaster v The Queen [2014] VSCA 333 (17 December 2014)

CRIMINAL LAW - Tendency evidence - Sexual interest in complainant - Gentry (a Pseudonym) v The Queen [2014] VSCA 211, applied - Whether anti-propensity warning required - Grech v The Queen [1997] 2 VR 609, discussed - Grech directions qualified.

CRIMINAL LAW - Ostensible bias - Whether undue intervention in trial - Whether judge's refusal to recuse himself gave rise to apparent bias - Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, applied.

Lancaster v The Queen [2014] VSCA 333

At a glance

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Judgment (179 paragraphs)

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Cases Cited (28)

Lancaster v The Queen [2014] VSCA 333 (17 December 2014)