M B v The Queen [2012] VSCA 248

2 On 18 November 2010, after a seven day trial in the County Court at Shepparton, the appellant was convicted of six charges of sexual penetration of a child under 16, under care, supervision or authority; one charge of indecent act with or in the presence of a child; and one charge of stalking. Following his conviction, the appellant was sentenced to a total effective sentence of nine years' imprisonment with a non-parole period of seven years.

3 On 3 February 2012, this Court[1] granted the appellant leave to appeal against conviction on the following ground:

The learned trial judge erred by failing to give:

(a) any direction as to the permissible and impermissible use of the evidence of the sexual offences with regards to the stalking allegation; and

(b) any direction as to the impermissible use of the stalking allegation with regards to the sexual offences.

4 The appellant now seeks leave in respect of two further proposed grounds of appeal:

1. The trial miscarried as a consequence of the judge's failure to direct the jury on the appellant's lie to the police that he did not keep or have condoms at his house.
2. The trial miscarried by reason of the judge's failure properly or at all to warn the jury about the complainant's possible motive to fabricate the substance of her allegations. In particular, the judge erred by failing to direct that:

(a) the defence had submitted that the complainant has a motive for alleging falsely that she had been interfered with by the appellant;

(b) rejecting the defence's submission was not the same as accepting that the complainant had told the truth;

(c) rejecting one motive did not mean the complainant was not moved to lie by some other motive; and

(d) rejecting the motive asserted by the defence did not make the complainant's account any more credible.

5 The complainant was 10 and 11 years old at the time of the alleged offending. At the same time, the appellant was 48 and 49 years old. He was a scout leader who met the complainant and her brother when they joined a scout club in early 2008. The appellant became friendly with the complainant's mother and spent time with the family. The appellant insisted that the complainant and her brother refer to him as 'Magpie'. Over time, the complainant and her brother would stay overnight at the appellant's house.

6 The complainant gave evidence of the circumstances relating to the seven sexual charges. The first five charges involved acts of penetration of the complainant's vagina and mouth by the appellant's penis.

7 In respect of charges 6 and 7, the complainant described an occasion where the appellant was playing a pornographic computer game, while she stood next to him and watched him play (charge 7). The complainant described the appellant clicking on a broom (in the game), and she saw the broom going into a vagina. Following this, the complainant lay on the kitchen table and the appellant took her pants off. The appellant put a condom onto a broom or duster handle and inserted it into the complainant's vagina (charge 6).

8 In August 2008, the complainant and her siblings were removed from their parents' care and placed into a foster home. It was while the complainant was in foster care that the incidents comprising charge 8 - the stalking count - occurred.

9 On 1 December 2008, police spoke to the appellant following a complaint that he had been loitering in a park in possession of binoculars. The complainant was in the park with her foster mother. On 30 December 2008, the complainant saw the appellant at a park in Kilmore. He drove away, but she identified him. On 18 January 2009, the complainant's brother and foster father saw the appellant near the foster family home.

10 The prosecution case was the incidents occurred as the complainant said they did. The prosecution contended that the complainant was groomed by the appellant.

11 The defence case was that the sexual offending (charges 1 to 7) simply did not occur. The behaviour alleged to constitute the stalking charge was said to be a series of chance encounters, with innocent explanations. Specifically, the appellant explained his presence on the first occasion as being there at the invitation of the complainant's mother, to ensure that no harm was done to her by her husband during an access visit; the second occasion, by stating that he was present on 30 December 2008 at the park in Kilmore on a toilet break; and the third occasion, on the basis that he was in the area of the foster family's house because he was looking for a house to buy. The defence also asserted that there were inconsistencies in the evidence and there was a delay before complaint. That said, the defence conceded that at the relevant time of the alleged sexual offences, the appellant had care, control and custody of the complainant.

12 During the course of his charge, the trial judge gave the jury the following directions:

I also told you last week that there are eight charges brought against [MB], and they are separate matters. They are being dealt with in the one trial for purposes of convenience. I remind you that you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately. It would therefore be wrong to say, simply, that simply because you find the accused guilty or not guilty of one charge, that he must be guilty or not guilty of another.

It would also be wrong, if you do find the accused guilty of one of the charges, to reason that because he engaged in that misconduct, he is the kind of person who is likely to have committed the other charges. Each charge must be considered separately, in the light only of the evidence that applies to that charge. You must ask yourselves, in relation to each charge, whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If the answer is 'yes', you should find the accused guilty of that charge. If the answer is 'no', you should find him not guilty of that charge.

You will note that I said to you, you must consider the charge in the light only of the evidence which applies to it.

13 A little further on in his Honour's charge, his Honour again reminded the jury that, as a matter of law, they could not use the evidence on one count in relation to another count. His Honour then gave standard directions concerning certain uncharged acts about which evidence had been given. It is not said that any of these directions were erroneous, and nor could it be.

14 However, the appellant now contends that the directions given by his Honour were inadequate. It is submitted that a specific warning against tendency reasoning was required in relation to the stalking charge; alternatively, in relation to the sexual offences. Without such a warning, the appellant submits that the jury may have impermissibly used the evidence of the sexual offences with regards to the stalking charge; alternatively, impermissibly used the evidence of the stalking charge in regards to the sexual offences.

15 These submissions should be rejected. At no time during the course of the trial did anyone suggest that any such reasoning might be engaged in. Further, it must be noted that no objection was taken by the appellant's counsel at trial in relation to this alleged defect in the charge. As has often been said, the fact that no complaint was made at trial, whilst not decisive, bears upon the likely substance of the ground now raised.

16 The question of whether any further direction was necessary is one that falls to be determined by reference to the way in which this trial was conducted. Obviously enough, there will be cases where a further direction of the kind referred to by the appellant will be necessary. In such cases, ordinarily one would think that counsel as experienced as defence counsel below was would seek an additional direction if one was required. However, that is not to say that all cases of this kind require such an additional direction.

17 When one examines the way this trial was conducted, it is well understandable that no further direction was sought by defence counsel. No-one had suggested any impermissible propensity reasoning might be engaged in, and it is at least possible that no additional direction was sought for fear of suggesting a process of reasoning to the jury which otherwise might not have occurred to individual jurors. While one cannot speculate about such matters, all that needs be said in this case is that there was no miscarriage in his Honour's failure to give more detailed or more specific directions than those actually given. In my view, his Honour's charge, in the context of this case, was exemplary.

19 In proposed ground 2, complaint is made that the trial miscarried 'as a consequence of the judge's failure to direct the jury on the appellant's lie to the police that he did not keep or have condoms at his house'. Before the appellant's record of interview commenced, the appellant was asked whether he kept condoms at his home. He said that he did not. Condoms were later found and the appellant was given an opportunity to explain.

20 In the charge, his Honour dealt with the issue as follows:

He [the prosecutor] put to you that the presence of the condoms in the accused's house was highly relevant and that he relied upon the admission that by - I withdraw that. He relied upon the contention by the police officer that before the interview took place on a formal basis, when asked whether he had condoms in the house, [MB] said he did not. I think [defence counsel] yesterday may have said he could not remember, but the evidence you will see in the interview itself was he agreed he did not but that he provided an explanation in the interview as to why he had them. And [the prosecutor] relies upon that.

He [the prosecutor] completed his submission to you by making the suggestion that the credibility of the accused man stood in stark contrast to that of [the complainant] because he put to you, you should accept the evidence of [the complainant] and reject the account given by the accused man in his interview.

21 Charges 1 and 6 were the offences that were allegedly committed using a condom. In his address, the prosecutor described each offence in detail, including the evidence about the use of condoms. The prosecutor then dealt with the issue of the appellant's pre-trial statements concerning condoms as follows:

You also have heard evidence of when the police executed the warrant that condoms were found in various places. You'll remember in the record of interview, initially the accused man said he had no condoms at the house. And it was later that the condoms came back to him as a realisation, that they were there, and there were various questions about it. However, his initial - when spoken to by police, there were no condoms there. You know from [the complainant's] evidence that condoms were used in the broom incident and other incidents.

You'll remember that the accused man gives some version that condoms are something he learned about in first aid, and he always keeps condoms in the house. One might wonder, if you keep in your first aid packet or your camping gear or whatever, condoms for that purpose, that it's surprising that they were in the drawer next to his bed when the police found them. They're matters for you. There are also there, of course, the various items that were found in the house.

22 Defence counsel dealt with this issue in his address as follows:

Now, there's no dispute that condoms were found in the premises, no dispute that they were found where the police said they found them. He gave an explanation for that and it's one of those situations, ladies and gentlemen, where there is - he's told the police at the start that he didn't think he had any condoms. Clearly he has.

But it goes back to what I said about the record of interview in the first instance. He's a man that, on his own evidence, hasn't had condoms for some two years. They sit around. No suggestion that he has any girlfriends or any women involved in his life. People tend, you might think, to forget that certain things are around their home, and in this situation, when he's placed under pressure by the police, he, you might think, forgot that they were there. He gives an explanation as to why he had condoms and that's really a matter for you whether you accept that or reject that.

23 What was said in addresses and in the course of his Honour's charge followed discussion between the judge and counsel about the issues of lies as consciousness of guilt. In that discussion, the prosecutor indicated that he did not rely on lies (if they were lies) about the presence of condoms as consciousness of guilt. Defence counsel was asked whether he had anything he wished to say about the issue. Defence counsel responded in the negative.

24 Notwithstanding the position taken by defence counsel at trial, and in the absence of any request for an additional direction, the appellant now submits that 'at the very least, the trial judge ought ... to have directed the jury that they were not to reason that, just because the appellant may have lied about keeping condoms at home, he was guilty of the offences the subject of (at least) counts 1 and 6'. The appellant further submits that a direction should have been given that the jury was not to reason 'simpliciter from the mere rejection of the appellant's account, to guilty verdicts'.

25 I reject these submissions. The question of whether an Edwards[2] or Zoneff[3] direction should have been given was one, in the circumstances of this case, for defence counsel to seek. Again, from the way this trial was conducted, there may well be very good reason why defence counsel would not have wanted any such direction to be given - particularly in the light of the way defence counsel chose to deal with this issue in his address.

26 While in other cases, or in this case, if it had been conducted differently, a direction of the kind the appellant now submits should have been given might have been necessary, the way in which this trial was conducted demonstrates that there was no miscarriage in failing to give such a direction in this case, when none was asked for.

28 Ground 3 is premised upon the proposition that the defence submitted that the complainant had a motive for alleging, falsely, that she had been interfered with by the appellant. This ground requires an analysis of the cross-examination of the complainant and defence counsel's address.

29 During a cross-examination which ranged over some 30 pages of transcript, defence counsel, from time to time, put to the complainant that a particular aspect of her evidence was untrue. At one point, it was suggested more broadly that 'the reason that [the complainant was] making it up' was because she knew the appellant did not do anything to her. At another point, it was suggested that the plaintiff had 'made all those allegations up'. Finally, the complainant was asked and answered the following questions:

I suggest to you that you were angry with [MB] because you think he's trying to break up your parents' relationship?---No, I'm angry at him coz what he did to me.

I suggest that you're blaming [MB] for something that other people have done to you?---No.

I suggest that all the evidence that you've given about all the bad things that you say he's done to you, you've made them all up?---I do not agree.

Okay. I have no further questions, Your Honour.

30 In support of proposed ground 3, counsel for the appellant noted that it was put to the complainant in cross-examination that she was motivated to fabricate her allegations against the appellant 'because she blamed him for the demise of her parents' separation (scil, relationship)'. This so called 'puttage' was then asserted to have been summarised in the judge's charge. Next it was contended that evidence was led about the complainant's parents separation after the complainant's mother met and established a relationship with the appellant. All of this, it was submitted, necessitated a direction of the kind set out in proposed ground 3.

31 However, when one examines the submissions actually made by the defence at trial, it is clear that ground 3 is without merit. At no point in his final address did counsel for the appellant below make any submission about any motive the complainant may or may not have had to lie.

32 Early in defence counsel's address, defence counsel said that, '[i]n a very real sense, it's [the case is] about the credibility of [the appellant] and the credibility of

[the complainant]'. Defence counsel then moved to the issue of reliability. The tenor of the address then changed over its course, so far as the complainant was concerned, from one where the credibility and reliability of the complainant were central to one where only her reliability was in issue. Indeed, in his concluding submissions, defence counsel said:

But in dealing with the evidence of [the complainant], it's not about whether she's credible. It's about whether she's reliable, and the two are very separate concepts, and when you look at her evidence in its entirety, it, you might think, doesn't really satisfy the test of reliability.

33 Again, one cannot speculate, but it is not beyond the realm of experience to note that experienced counsel from time to time modify arguments put in final addresses based upon how they think such arguments are being received by the jury. In any event, the short answer to proposed ground 3 is that the defence chose not to make a submission that the complainant had a motive for lying. In the circumstances, it would have been surprising indeed if the trial judge had given a direction of the kind referred to in ground 3 - and more so, in the absence of any request from defence counsel to give such a direction.

35 The application for leave in respect of proposed grounds 2 and 3 must be rejected. The appeal must be dismissed.

36 I agree and would make the orders which Beach AJA proposes, for the reasons which his Honour gives. I would add the following matters. The first is addressed particularly to the appellant.

37 The fact that the Court is in a position to deal with this appeal on the day of hearing is not to be thought to suggest any lack of attention to, or consideration of,

the grounds of appeal. Quite the contrary. The members of the Court have had the opportunity over a number of days to read the detailed written argument filed on the appellant's behalf, to read the Crown's detailed written argument in response, and to look at the trial transcript. As a result, we had a good sense of the areas of contention, and of the competing arguments, before the hearing began.

38 We take the view that someone in the appellant's position is likely to be assisted by having his appeal disposed of as soon as practicable. Hence, where delay can be avoided it should be avoided. Where - as here - we have very good clear submissions filed on both sides, and the opportunity to read in advance the relevant transcript of what occurred at trial, we are then in a position to hear argument on the disputed questions, to seek clarification as necessary and then to proceed to deal with the matter.

39 As to the grounds of appeal themselves, senior counsel for the Crown rightly drew attention to the principle in Alford v Magee,[4] recently reaffirmed, in R v Getachew,[5] which marks out the scope and limits of the judge's obligation to instruct the jury. In Getachew, the High Court said:

As this court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues.[6]

40 To similar effect in R v AJS,[7] this Court said:

Axiomatically, it is the responsibility of the trial judge in every jury trial:

(a) to decide what are the real issues in the case;

(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;

(d) to explain to the jury how the law applies to the facts of the case; and

(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.

These propositions are of long-standing and of high authority. They have often been repeated in this court. If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.

41 Where, as here, an appellant makes complaint about what are said to be omissions from the instructions given by the judge to the jury, we must look - consistently with the authorities mentioned above - to see what actually went on at the trial. As was made clear in R v Luhan,[8] and again in R v Momcilovic,[9] this Court will scrutinise closely submissions advanced on appeal which contend that, although directions were not asked for at trial, they should nevertheless have been given and, moreover, that the failure to give them led to a substantial miscarriage of justice. The question for this Court is: was the trial, as conducted, a fair trial? We will reject grounds of appeal which are premised on the conduct of a trial that is different from the trial which was actually conducted.[10]

42 Plainly enough, as Beach AJA has said and as counsel for the appellant argued, there will be circumstances in which it will not matter that something was not raised by trial counsel. In such circumstances, the miscarriage of justice will be manifest and will require correction by this Court despite the fact that the relevant issue was not adverted to in the course the trial. But, for the reasons his Honour has given, this was not such a case.

43 Trial judges are entitled to expect from defence counsel and prosecutors a clear identification - at the start of the trial, and again before the charge, and again (if necessary) by way of exception to the charge - of what the issues are and what directions are necessary. In my respectful view, trial counsel in the present case - on both sides - discharged that responsibility fully. They made what can be seen, in the context of the trial, to have been perfectly understandable judgments about the way in which particular issues were to be put to the jury and, hence, about what instructions were and were not necessary for the jury to be given.

44 The scrutiny to which I have referred will be especially close where an appellant contends that there was a risk that certain evidence might be unfairly or impermissibly used by the jury. Almost always, defence counsel at trial will be the best judge of whether a jury is likely to reason unfairly or impermissibly on the basis of some or other piece of evidence. The trial judge, of course, has an overriding duty, if there is perceived to be a substantial danger of such reasoning, to give necessary directions. But, principally, it is for defence counsel in the trial to assess whether such a risk exists and, if it does, to decide whether to seek a direction to mitigate or eliminate that risk.

45 Where no direction is sought, this Court will ordinarily be entitled to conclude that trial counsel either did not perceive any such risk or else decided, for forensic reasons, not to seek a direction. As Beach AJA has indicated, and as has often been said in this Court, there may be perfectly sound forensic reasons why defence counsel will elect not to ask the trial judge to highlight a particular matter, such as an alleged lie or a possible line of reasoning such as propensity or tendency reasoning. The giving of such a direction might well suggest to a jury a way of approaching the case that might not have otherwise occurred to them.

46 As was pointed out recently in Wilson v The Queen,[11] the task which the law imposes on trial judges and juries in sex offence cases is already enormously difficult, to a point where there is an urgent need for legislative change to simplify the requirements as to the content of directions. That being so, it is in everyone's interests that a judge's charge to a jury be no more complicated than is absolutely necessary to meet the requirements of a fair trial. For that reason, too, this Court will

be astute to resist submissions which would have the effect of expanding the scope of a charge beyond that which can be seen as necessary to satisfy the judge's obligation.

47 I agree, for the reasons given by Beach AJA, with the orders which his Honour proposes.

48 I also agree with the comments made by the President on the approach which this Court should take to the question of whether there was a fair trial actually conducted.

1. The appellant have leave to amend his notice of appeal to add grounds 2 and 3.

3. In respect of grounds 2 and 3, application for leave to appeal refused.

[2] Edwards v R [1993] HCA 63; (1993) 178 CLR 193.

[3] Zoneff v R (2000) 200 CLR 234.

[4] [1952] HCA 3; (1952) 85 CLR 437, 466.

[5] [2012] HCA 10; (2012) 286 ALR 196, 204 [29] ('Getachew').

[7] [2005] VSCA 288; (2005) 12 VR 563, 577 [55]-[56] (footnotes omitted).

[8] [2009] VSCA 30, [37].

[9] [2010] VSCA 50; (2010) 25 VR 436, 479-480 [160]-[163].

[10] R v Luhan [2009] VSCA 30, [37].

[11] [2011] VSCA 328, [2]-[5].