M G v The Queen [2010] VSCA 97

1 The applicant, MG, was presented in the County Court on two counts of incest (counts 1 and 2) and one count of indecent act with a child under 16 (count 3). He entered a plea of not guilty to counts 1 and 2 and a plea of guilty to count 3. He was acquitted by a jury on count 1, but convicted on count 2. He was sentenced to three years and three months' imprisonment on count 2 and nine months' imprisonment on count 3. Three months of the sentence imposed on count 3 was to be served cumulatively upon the sentence imposed on count 2, resulting in a total effective sentence of three years and six months' imprisonment. A non-parole period of 18 months was fixed. The applicant now appeals against his incest conviction and the sentence imposed for both offences.

2 The applicant is the biological father of the complainant, who was aged 13 at the time of the offending. The complainant lived with her mother, a former long term de facto partner of the applicant for some of the time and with the applicant for the remainder. It was usual for the complainant to share the applicant's bed once or twice a week when staying with him, despite having her own bedroom in the house. She would often fall asleep in the applicant's bed after watching television.

3 The events giving rise to the applicant's conviction and sentence took place on 25 and 26 February 2008. The applicant had spent part of the day on 25 February drinking alcohol with friends and continued to do so at home that evening. The same night, the complainant fell asleep in the applicant's bed. She had gone to bed before the applicant, wearing short pyjamas and underpants.

4 In the early hours of 26 February, the applicant went to bed intoxicated and naked. It was alleged that some time before 3.40 am, the complainant woke to find the applicant lying next to her, touching her on the leg, and backside, and playing with the lining of her underwear. The applicant then inserted his finger in the complainant's vagina through her underwear and rubbed her vagina on the outside of her clothes. The incident lasted for approximately one minute and gave rise to the first count of incest. Shortly afterwards, the applicant again inserted his finger in the complainant's vagina through her underwear and continued to play with her backside and underwear. This act constituted the second count of incest.

5 The applicant then began to masturbate in the bed for several minutes while watching television. He got out of bed and continued to masturbate for a moment, then returned to bed, placing his hand on the complainant's hip and telling her that he loved her. As these events unfolded, the complainant's back remained to the applicant. She pretended to be asleep because she was 'scared'. She stated in evidence that she wondered '[w]hy he would do that and if he had done it other times and how long I had been asleep before I woke up to him doing it'.

6 The complainant was interviewed by the police and her interview was video-taped ('VATE evidence'). In the interview, the complainant said that she woke to find her father touching her, rubbing her legs and buttocks and playing with her underwear line. She stated that his hand was inside her shorts and that he had rubbed her 'fanny' upwards and downwards and backwards and forwards inside her shorts on the outside of her underpants. The complainant said she could feel the applicants finger inside her 'fanny' even though she was wearing underwear. When asked, the complainant said that she understood that the term 'fanny' meant vagina.

7 The complainant further said that following these incidents, the applicant proceeded to play with his 'rude part' and that the bed was 'moving'. She stated that the applicant played with his 'dick' for approximately ten minutes in the bed before continuing to do so beside the bed standing up. The following morning, the complainant told two school friends, LM and PD, what had occurred the evening before. Both made statements to police in video recorded interviews in which they related what the complainant had told them at school the following morning about the events of the previous evening.

8 The applicant, in his police interview, said that he was intoxicated and that he had had an erotic dream. He remembered touching the complainant's leg and buttocks, and touching her vaginal area on the outside of her clothing but denied any act of penetration. He admitted to police that he had masturbated whilst still in the bed with his daughter but said that act made him feel disgusted, which was the reason for him leaving the bed and continuing to masturbate next to the bed.

9 At trial, the complainant adopted her VATE evidence and was cross-examined in a special hearing. The applicant did not give evidence. LM and PD both adopted their VATE evidence.

10 The applicant raised eleven grounds of appeal against conviction. Ground 2 was abandoned at the hearing of the appeal. It is convenient to turn first to ground 11.

11 At the commencement of the appeal senior counsel for the Crown, in discharge of his prosecutorial duty, drew attention to the fact that the trial judge had not fully directed the jury as to an element of the offence. Her Honour had not instructed the jury that the act of penetration constituting the actus reus of the offence of incest must be a 'voluntary, conscious and deliberate' act.[1] Counsel for the Crown said that notwithstanding that important omission, he would contend that there was no miscarriage of justice having regard to the way in which the trial as a whole was conducted. With leave, the applicant was permitted to add the following new ground:

The learned trial judge erred in failing to instruct the jury that the applicant's acts must be conscious and voluntary.

12 The submissions focussed upon whether the judge's failure to so direct was material to the applicant's defence. The applicant's defence, which was raised in his record of interview, was two-fold. First, he told investigators that he was asleep and was having an erotic dream when he touched his daughter. The absence of an instruction that the act be conscious and voluntary was relevant to this part of the defence. Second, he denied that he had penetrated his daughter's vagina.

13 It is necessary to set out the relevant parts of her Honour's charge to the jury. The learned trial judge introduced the elements of the offence in the following way:

Briefly, in relation to incest, the five elements that the prosecution must prove beyond reasonable doubt are the five that are noted. First, the accused took part in an act of sexual penetration with the complainant. Second, the accused intended to take part in that act of sexual penetration with the complainant. Third, the complainant is the daughter of the accused. Fourth, the accused knew the complainant was the daughter and fifth, the accused was aged 18 or older at the time of the act of sexual penetration taking place.

14 Her Honour then related this statement of law to the facts of the case as follows:

In this case in respect of both incest charges, the act of sexual penetration which is alleged that the accused man took part in with the complainant, was the insertion of his fingers into her vagina on two occasions that happened that morning in quick succession. You must be satisfied in respect of each of those elements beyond reasonable doubt before you could find the accused man guilty of the offences charged. So in relation to the first element, it is necessary for you to understand what an act of sexual penetration is. The second element relates to the accused person's state of mind; and that is that the prosecution must prove that the accused man intended to take part in the act of sexual penetration. The third, fourth and fifth elements are not in dispute in this case ...

15 Her Honour then embarked on a more detailed explanation of the elements in dispute. In relation to intention, her Honour said this:

The second element relates to the accused person's state of mind. The prosecution must prove that the accused intended to take part in the act of sexual penetration with his daughter [MJ]. That is, you must be satisfied that the accused's sexual penetration of the complainant was done deliberately and not accidentally.

16 Her Honour summarised the evidence of intoxication and then instructed the jury as to how it might affect the element of intent:

I have instructed you that the second element of the offence of incest relates to the accused's intention to take part in the act of sexual penetration that is alleged and that relates to his state of mind. The Crown must prove that the accused intended to take part in an act of sexual penetration. You do not have to decide whether or not the accused was capable of forming the intent; all you have to decide is whether in light of the evidence of intoxication the prosecution has proved his intention to do the act with which he is charged.

That is, placing his finger in the complainant's vagina on the two separate occasions.

If you are satisfied as a result of intoxication the accused's mind did not form the necessary guilty intention, then he would not be guilty because one of the elements the Crown has to prove, would be missing.

When you are considering with what intention the accused acted, you would bear in mind the effect if any, of the influence of alcohol upon his mind. Of course in deciding what effect if any, the alcohol had upon the accused, you are entitled to have regard particularly to what the accused did, for those actions may clearly show that although the drink led to the accused doing those things, the accused must have had a particular intention in doing them.

If after having considered the evidence of intoxication, you are not satisfied as to voluntariness or actual intent, then you would put the evidence to one side in considering the accused man's guilt or innocence.

17 Later in her Honour's charge the learned sentencing judge summed up the defence case as follows:

In relation to intention, he submitted that the Crown has not satisfied you beyond reasonable doubt that he intended to take part in the acts of sexual penetration alleged. He emphasised that it cannot be that if you [are] sleeping and unconscious, that it is a voluntary and intentional act. He emphasised the cooperation of the accused man in the record of interview and he urged you to accept his evidence, that it was not a wilful and intentional act on his part. He emphasised his answer to Question 149 where he said in his own words, that it was not an intentional act. He said that in all the circumstances you ought not be satisfied beyond reasonable doubt the Crown has proved its case. He emphasised the onus of proof; the burden of proof and the fact that that never changes at any time from the beginning of the trial until the end of the trial and that the accused can rely on the presumption of innocence.

18 Her Honour then concluded her directions on the elements in these terms:

If you are left in a state of mind where you could not reject [the applicant's] evidence of denials beyond reasonable doubt, you would be left in the state of mind where you could not be satisfied in respect of the Crown case.

The elements of the offence of incest have been set out for you. The accused man denies the charges against him and I repeat, you could not convict the accused of any count unless you were satisfied beyond reasonable doubt in respect of each of the five elements that the prosecution must prove.

19 It is apparent from the above directions that the jury charge related to the intention to penetrate required for the offence of incest, rather than to the issue of whether the applicant committed the act of penetration consciously and voluntarily. The applicant submitted that the failure to direct the jury that they must be satisfied that the act of penetration was conscious and voluntary was critical, as it was open to the jury to find that he was not conscious whilst committing the actus reus of the offence. Accordingly, it was said that the applicant was deprived of a real chance of an acquittal.

20 The respondent drew attention to the content of the trial judge's direction on the element of intention. The directions on that element were said to be sufficient to implicitly address the factual question of whether the applicant was conscious at the time he performed the actus reus of the offence. The jury must have understood that a finding of guilt required the resolution of the primary question of fact - whether the applicant was asleep or awake when he touched his daughter in the way she alleged. It was submitted that the jury would have answered that question when determining whether the accused 'intended' his act. A positive finding that the applicant intended to sexually penetrate his daughter foreclosed the possibility of a finding that his conduct was not 'voluntary, conscious and deliberate'. These elements, it was submitted, were effectively subsumed in the direction on the element of intention. He further submitted that the jury must have found that the applicant was awake and hence intended to commit the actus reus of the offence. A positive finding that the applicant was awake and intended his act could only be consistent with a finding that he consciously performed that act. Accordingly it was submitted that there was no miscarriage caused by the failure to separately direct the jury as to the requirement that the act be conscious and voluntary. Alternatively, he submitted that even if the judge erred by failing to leave that element to the jury, that failure did not give rise to a substantial miscarriage of justice.

21 This case is concerned with the 'general intent' to perform the act constituting the actus reus (in this case the act of sexual penetration). The actus reus of the offence must be a voluntary act accompanied by the intention of doing so.[2] Whenever general intent is in issue the act must be voluntary in the sense that it is willed and consciously performed.[3] The existence of a voluntary willed act is indispensable to criminal responsibility. Accordingly the act must be one of volition. That involves a determination or choice by the offender to do the act.[4]

22 The trial judge is obliged to instruct the jury as to so much of the law as they need to know in order to dispose of the issues in the case.[5] As a primary factual issue in the case was whether the applicant was asleep at the time that he performed the act, it was necessary to explain how the law applied to that factual question so that the jury could properly discharge their function. Consequently on strict analysis the trial judge should have instructed the jury, not merely that the applicant must have intended the act of sexual penetration, but that the act of penetration must be conscious, voluntary and deliberate.

23 Where there is an issue as to whether the physical act involved in the crime was 'voluntary' or 'willed' it may be insufficient to instruct the jury that the necessary mental element is one of intention. For example, where a person commits a criminal act as the result of duress, the actus reus of the offence will have been intentionally performed, but the accused would not be criminally liable because it would not have been committed voluntarily. For offences involving a specific intent, Barwick CJ suggested in Kolian v The Queen, that the word 'intention' should be reserved to 'express the intention to achieve the consequences of a willed act, that is to say, to achieve some result or consequence or to fulfil some purpose'.[6]

24 The joint judgment in R v Falconer assumes, sub silentio, in the absence of evidence to the contrary, 'that an act done by a person who was apparently conscious is willed or done voluntarily'.[7] Thus when an act is done by an apparently conscious actor, an inference that the act is willed must be drawn - not as a matter of law but as a matter of fact in the absence of evidence to the contrary.[8]

25 In the present case, one can readily appreciate why her Honour considered it sufficient to direct the jury by reference to intention. Neither party suggested to her Honour that any further direction was required to emphasise the Crown's obligation to prove that the act was conscious, voluntary and willed. That said, the trial judge should have directed the jury that it was necessary for the prosecution to establish that the act of the applicant was a conscious, voluntary and willed act.

26 As the argument before us proceeded on the assumption that the error amounted to a miscarriage, we do not stay to consider whether it should be so characterised but turn to the question whether the proviso to s 568 of the Crimes Act 1958 should apply. There will be cases where, despite the evidence being overwhelming, it will be inappropriate to apply the proviso. There is no rigid formula to determine what constitutes a 'fundamental error' which would preclude the application of the proviso.[9] Not every misdirection about an element of the offence leads to the quashing of a conviction.[10] In R v Lambourn[11] the proviso was applied notwithstanding the failure of the trial judge to direct the jury in relation to the element of intent on a count of aggravated burglary. The proviso may be applied if upon this Court's review of the facts and the circumstances of the case, the Court is satisfied that the applicant would not have had a chance of acquittal by the jury if properly instructed.[12]

27 The respondent submitted that the Court should apply the proviso in the present circumstances as the case against the applicant was so strong that the omission to direct the jury on the element could not have resulted in a 'lost chance' of acquittal. Senior counsel pointed to the implausibility of the applicant's account of being asleep during the second assault, when he had subsequently masturbated in the bed and then got out of the bed to continue the masturbation. The trial judge had identified the critical fact in issue which was whether the applicant was asleep or awake at the time that sexual penetration occurred. It was submitted that the direction on the element of intent required the jury in substance to be satisfied that the applicant had engaged in a conscious and voluntary act.

28 As was made clear to the jury, a critical factual issue was whether the accused was awake when he sexually penetrated the complainant. Despite the absence of an instruction that the act be a conscious, voluntary and willed act, determination of the presence of that element was inherent in the factual question which the jury was directed to resolve.

29 In New Zealand, trial judges sometimes instruct the jury by way of a 'question trail' in which a series of factual questions are posed for the jury which are the product of the obligation to relate the law to the issues in the case.[13] If a question trail had been employed in the present case, then on the count of incest, the jury would have been told to consider first whether the prosecution had proved the victim was the applicant's daughter and second whether the prosecution had established that he had placed his finger inside the complainant's vagina. If the jury had answered the first two questions in the affirmative, the third question which had been agreed was the crucial factual issue was whether the prosecution had proved that he was awake at the time he did so. The legal requirement that the act be conscious and voluntary is embedded within that question. The instructions that were given to the jury in the present case, when considered as a whole had that effect.

30 Satisfaction that the applicant 'intended' to engage in the relevant act of penetration rested upon proof that the applicant was awake. The direction as to intent and its application to the factual question of whether the applicant was awake foreclosed the possibility that a direction as to the additional requirement that the act be conscious and voluntary may have affected the verdict of the jury. The evidence did not give rise to a hypothesis that the applicant may have been awake but nevertheless committed the act of penetration involuntarily.

31 It is unnecessary to consider whether the voluntariness of the applicant's conduct should be regarded as part of the actus reus or as part of the mens rea.[14] The conclusion that the applicant was awake and that his act was intended (or willed) resolved the issue between the parties. We are fortified in this view by the fact that no objection was taken by either party to her Honour's charge. The omission of the requirement that the act be voluntary, conscious and deliberate did not give rise to a substantial miscarriage of justice.

32 Next we turn to grounds 3, 4, 5 and 8 which can appropriately be considered together.

The learned trial judge in the charge to the jury failed to summarise the taped record of interview in a manner that was fair to the applicant.

The learned trial judge erred by failing to adequately or sufficiently define the term 'vagina' for the jury.

The learned trial judge erred by failing adequately to relate the evidence to the law with respect to the issue of penetration.

The learned trial Judge after agreeing to a jury request to replay part of the special hearing erred in failing to remind the jury of relevant answers contained in the taped record of interview of the applicant.

33 Grounds 3, 4, 5 and 8 also concern the obligations of the trial judge to direct the jury as to the relevant law and the relevant evidence. In her charge to the jury, the trial judge said:

I will deal with the first element, taking part in an act of sexual penetration. The first element relates to what the accused did. The accused must have taken part in an act of sexual penetration with the complainant. The law defines sexual penetration as the introduction of a person's penis, body part or object into another person's vagina or anus. This includes penetration of the external genitalia; that is, the external lips of the vagina.

34 Counsel for the applicant contended that the trial judge's explanation to the jury of the term 'vagina' was inadequate and fell short of the test established in AJS.[15]

35 AJS concerned an appeal against conviction on one count of incest by digital penetration. The accused gave evidence at trial that he had been rubbing the stomach of the complainant (his granddaughter) underneath the top of her pyjama pants and on top of her underpants because she was suffering food poisoning and stomach cramps. He said that he was not aware of touching her in the vaginal area, denied that he had penetrated her vagina and said that any contact with the complainant's vagina was accidental. In evidence-in-chief, the complainant said the applicant put his hand under her underpants and put his fingers inside her vagina. The trial judge, in referring to the crime of incest in her charge to the jury, made no reference to the requirement that the act of penetration required for that offence be intentional.

36 One of the issues at trial was whether the complainant had been penetrated at all. She had given conflicting evidence as to whether the accused had inserted his finger between her labia majora. The definition of vagina was critical to the circumstances of the case, as explained by the Court of Appeal:

In order for the jury to be able to decide [whether there had been any penetration at all of the complainant's genitalia], it was critically important that they have the legal meaning of 'vagina' explained to them.[16]

37 The trial judge had instructed the jury that the word 'vagina' was defined to include the 'external genitalia', but the Court of Appeal found that was insufficient in the circumstances of the case:

the phrase 'external genitalia' is not in ordinary usage. It could not be assumed that every member of the jury would readily understand what the phrase connoted. In our view, it was essential - given the contest over what had actually occurred - that the judge be quite explicit in explaining to the jury the distinction ... between penetration of the vulva, as denoted by the labia majora, or outer lips, and penetration of the vagina itself.[17]

38 The Court of Appeal found that the trial judge fell into error because her Honour failed to inform the jury in precise and simple terms what would constitute penetration of the outer lips of the vagina.[18] Critically, that error was predicated on the failure of the trial judge to direct the jury of the need to be satisfied beyond reasonable doubt that the accused man intended to penetrate his granddaughter. The failure to direct the jury as to intention was so fundamental in nature that it went to the root of the proceedings.

39 In this case there is no issue of accidental penetration in the sense that arose in AJS. Furthermore, AJS does not support the applicant's submission that the use by a trial judge of the term 'external genitalia' in his or her charge to a jury on a charge of incest is a prima facie defect in the direction to the jury that is so fundamental a departure from the essential requirements of the law that the proceedings cannot be valid.

40 It is apparent that the trial judge directed the jury in a accordance with s 35(1) of the Crimes Act 1958, and in accordance with AJS, further explaining the meaning of external genitalia by reference to the 'external lips'.[19] In the circumstances of this case, there can be no doubt that the jury would have understood what vagina meant. As already observed, no exception was taken to this aspect of the charge.

41 The applicant's counsel further submitted that the trial judge failed to comply with the common law obligation to summarise the relevant evidence and relate it to the issues in the case.[20] These principles were conveniently summarised by this Court in AJS:

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.[21]

42 Counsel for the applicant contended that in charging the jury the trial judge failed to refer to the cross-examination of the complainant on the issue of penetration, or the applicant's answers in his record of interview concerning whether penetration had occurred and his state of mind at the relevant time. It was also contended that the trial judge failed to sufficiently summarise the applicant's defence as stated in his record of interview.

43 The relevant transcripts were given to the jury, as was permitted by s 19 of the Crimes (Criminal Trials) Act 1999. We will make further observations about the use of transcript at the trial when considering grounds 6 and 7. It was not necessary for the trial judge, in order to fulfil her obligations at common law, to summarise every part of the transcript. Her Honour told the jury that:

In this charge I propose to give you a very short summary of the way in which each side contributed to the evidence in respect of each count and the purpose of my doing so will be to assist you in remembering the evidence but I do not propose to recount the evidence in detail at all. It has been a short trial. You have available to you transcript of all the evidence in the case ...

44 Her Honour then informed the jury that it was a matter for them to decide what weight should be given to the evidence, cautioning them, as she was required to do[22] that they should not draw any adverse inference against the accused man because the matter had proceeded by way of a special hearing and the evidence of the complainant and the other child witnesses had been pre-recorded. She instructed them that it was a matter for them what weight of importance they placed on any particular evidence.

In this case you must take into account [that] the accused ... made repeated denials in his record of interview in respect of the allegation that he sexually penetrated his daughter on two occasions by inserting his finger into her vagina ... I will now talk to you about the record of interview and also the use to which you may use an admission ... you may use such a statement made by the accused out of court in his favour. If they contain statements expressly or impliedly denying his guilt you may use denials as evidence that the accused is not guilty. It is for you to give them such weight as in the circumstances you think proper.

46 Her Honour also directed the jury as to the evidence relating to the applicant's intoxication and its effect on his state of mind. After referring to the answers the applicant gave in his record of interview relating to his intoxication, she instructed the jury that the applicant could rely on evidence of his intoxication as negating or helping to negate, some element of the crime.

47 The prosecutor, in his closing address, had submitted that the applicant had made admission with regard to penetration in his record of interview. In light of that, the trial judge made the following direction:

I direct that you must consider that answer in the context in which it was given and have regard to all of the accused's answers and his denials with respect to sexual penetration having not occurred. In particular, I refer you to question 206, 220 to 224 inclusive, 231, 232 and 233 and it is for you to determine whether to accept ... or reject ... [the] submission having regard to my direction ... In relation to the specific denials with respect to sexual penetration having occurred I refer you to question 134 to 137 inclusive, 139, 140, 146, 148, 149, 206 and 220 to 224 inclusive, 246, 250, 251 and 252.

48 During their deliberations, the jury requested that the complainant's cross-examination which related to the evidence the complainant gave as to whether there were one or two occasions on which sexual penetration took place, be replayed to them. The trial judge had specifically informed the jury that if during their deliberations they wanted to have any of the evidence (including the VATE tape or the tape of the special hearing) replayed, they could make such a request, but because of the special rules that apply to cases of this nature, they would have to describe with some particularity what it is that they would need to see again and why they wanted to see that evidence. She emphasised that there were special rules that applied, and that this was the reason why some degree of particularity was necessary. Following the replaying of the VATE, the trial judge reminded the jury of the questions and answers in the VATE evidence which dealt with this issue.

49 Counsel for the applicant submitted there was an imbalance in the way the trial judge dealt with the applicant's and complainant's account of events. The trial judge had summarised the complainant's VATE evidence, and her answers in cross-examination but it was said that the trial judge failed to further remind the jury of the parts of the applicant's record of interview dealing with the issue of penetration, in which he gave his account of what occurred, such that a risk arose that the jury would give disproportionate weight to the VATE evidence.

50 In Gately v The Queen,[23] the High Court considered a situation in which a jury, having retired to consider their verdict, requested access to the videotape of the complainant's evidence and the transcript of her earlier statement. In that case, it was held that the video-recording should not have been played in the court room to the jury, in the absence of the trial judge and counsel.[24] However, in the circumstances of the case, the majority held that no miscarriage had occurred.

51 The applicant relied on the following comments made by Hayne J in that case:

Replaying the evidence given by one witness, after all the evidence has been given, carries risks. First, there is the risk inherent in the form in which it is presented ... [a] risk that undue weight will be given to evidence of which there is a verbatim record when it must be compared with evidence that has been given orally. Secondly, there is the risk that undue weight will be given to evidence that has been repeated and repeated recently ... If a jury asks to be reminded of the evidence of an affected child that was pre-recorded ... that request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused.[25]

52 We see no error in the manner in which the trial judge dealt with the replay of parts of the complainant's VATE evidence. It was not necessary in the circumstances for the jury to be further reminded of the countervailing account of the applicant which would have by then, been clearly understood by the jury. The trial was short, the evidence covering less than two sitting days. The issues in dispute were narrow in compass.

53 Before replaying that evidence the jury were given the following instruction:

[I] have to remind you that what you're viewing is only part of the evidence given by [the complainant] and that you'll be viewing it for a second time and well after all the other evidence has been heard and I have to warn you that you cannot give the evidence disproportionate weight and you must consider the other evidence in the case that relates to this aspect and so I will just repeat to you my notation of the question and answers in the VATE that deal with this aspect of the second occasion in which it's alleged sexual penetration took place ...

54 The applicant's record of interview was played to the jury the same day that the trial judge charged the jury. Her Honour gave the jury clear directions on the findings which were open to them on the state of mind of the applicant, in the context of his claim that he had awoken from an erotic dream.

55 We reject the applicant's submission that the circumstances of this case are analogous to those in R v Zilm.[26] In that case, the failure to summarise the contents of the record of interview meant that the case for the accused had not been adequately placed before the jury. Eames JA said:

the judge failed to summarise the version of events given by the applicant in his record of interview, and her Honour twice told the jury that the record of interview was something to which they need make reference only if they wished. When summarising the address of defence counsel ... the judge did not refer to any answers in the record of interview, at all, but merely gave brief reference, in relatively general terms, to the defence contentions.[27]

56 We do not find that there was such an imbalance in summarising the applicant's case as to amount to a miscarriage of justice.[28] We consider that the applicant's defence as disclosed in the applicant's record of interview was adequately summarised. We have already referred to the trial judge's detailed explanation of the elements of the offence and the facts which were in dispute and how they related to each other. Her Honour also repeatedly alerted the jury to the findings which were open to them on the evidence with regard to both the applicant and complainant's version of events. It follows that grounds 3, 4, 5 and 8 are not made out.

The guilty verdict on Count 2 is unsafe and unsatisfactory having regard to the not guilty verdict on Count 1.

57 Where it is argued that the verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, the following test is to be applied:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[29]

58 It is not the role of this Court to ask why the jury came to the decision it did, but whether it was reasonable for them to do so on all the available evidence. In Green v The Queen,[30] Barwick CJ, McTiernan and Owen JJ said:

Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial ...[31]

59 The argument under this ground amounted to a contention that the verdicts on counts 1 and 2 were inconsistent. Where the real complaint is that the verdict is inconsistent with an acquittal on another count, it should be the subject of a discrete ground. If a claim of inconsistent verdicts cannot be sustained, the verdict of acquittal will not ordinarily advance the argument that the guilty verdict was unsafe or unsatisfactory. Inconsistency should not be raised under such a ground unless the acquittal could throw some light on whether it was open to the jury to return a verdict of guilty on another count. Notwithstanding the absence of the appropriate ground, we permitted the applicant to pursue the complaint that the verdicts were inconsistent.

60 The applicant submitted that as the alleged acts constituting counts 1 and 2 were separated only by a very short space of time, the verdict of not guilty on count 1 and guilty on count 2 indicated that the jury had reached an improper compromise.

61 In support of the submission, the applicant relied on his repeated denial of having intended to penetrate the complainant and his assertions that no act of penetration had occurred. Attention was drawn to the fact that the complainant's evidence was the only evidence on which the jury could base its verdict. There was no medical or forensic evidence to support her account of events. It was submitted that if the jury had entertained a reasonable doubt on count 1, which was said to have occurred very shortly before the events constituting count 2, they must necessarily have entertained a reasonable doubt as to the applicant's guilt on count 2.

62 In essence, it was submitted that the jury had to take an 'all or nothing' view of the complainant's evidence and could not accept her evidence on count 2, whilst entertaining a reasonable doubt on count 1. It was contended that the jury verdict could not be explained rationally or logically by reference to the evidence.

63 The Court was directed to the question which had been raised by the jury during their deliberations. They sought to view a particular part of the complainant's cross-examination where she said she did not know how many fingers were used or how long the penetration occurred, and had said, when it was put to her that the applicant's hand only went 'onto' her vagina once, that she did not know.

64 In ERJ v The Queen,[32] Redlich JA, (with whom Harper JA and Williams AJA agreed) in rejecting a similar submission said:

Both sets of joint reasons in MFA rejected as erroneous, the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.

Where an accused is charged with multiple offences, differences between the verdicts may not involve inconsistencies even of a factual kind. The significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. The ultimate question concerns the reasonableness of the jury's decision. Here the jury was directed to give separate consideration to each count. It was accompanied by a specific instruction that the evidence of the complainant could be accepted in whole or in part. There being no objective evidence of each of the sexual assaults, some jurors may have considered, on some counts that it was more probable than not that the complainant was telling the truth but required something additional before reaching a conclusion beyond reasonable doubt. That did not necessarily involve a rejection of the complainant's evidence. As the joint reasons of Gleeson CJ, Hayne and Callinan in MFA state:

'a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant'. It may simply reflect a cautious approach to the discharge of a heavy responsibility.

In the present case the verdicts can be reconciled, allowing this Court to conclude that the jury performed their function as required. There is a logical and reasonable basis for sustaining the differentiation that the jury drew. The central issue was the credibility of the complainant, upon whose testimony the Crown case solely rested. Were the evidence on the acquittals indistinguishable from that upon the other counts, it might be that they could not be reconciled without concluding that the complainant was lying in respect of those counts. As credit is in that sense indivisible, inconsistency where it cannot otherwise be explained may have the consequence that the verdicts cannot be sustained. But, as senior counsel for the Crown submitted, there were deficiencies in the complainant's account which explained the verdicts on those counts and which did not necessarily involve an adverse finding as to credibility.[33]

65 For very similar reasons we conclude that the different verdicts returned by the jury do not represent 'an affront to logic and the commonsense' or suggest a compromise in the performance of the jury's duty.[34] There is no inconsistency, let alone one which rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice.[35]

66 As is required in a case involving multiple counts, the trial judge directed the jury to give separate consideration to each count and told them that the evidence of a witness may be accepted in whole or in part. She directed the jury to take into account the context of both the complainant's and applicant's testimony, referring to the possibility that the complainant 'may have been awoken in a half sleep when the things were occurring'. The applicant himself maintained in his record of interview that his behaviour occurred at time of intoxication while he was in a dream-like state but that when he realised his actions, he was repelled and disgusted. He went on to say that the incident was 'frozen in my mind' and he had clear recollections of touching the girl. The jury may have had a doubt about whether the applicant was conscious at the time of the act constituting count 1 but had no doubt that he was conscious by the time he performed the act constituting count 2, even though the two acts occurred close together in time. The jury may have regarded the complainant's evidence as to the first act as attended by some uncertainty on her part.

67 In our opinion it was reasonably open to the jury on the evidence to find the applicant guilty on one count and not the other. As her Honour said in her reasons for sentence:

The jury's verdict is consistent with a finding that on the first occasion you did not form the necessary intent to take place in an act of sexual penetration. They were unanimously satisfied on the second occasion that the act of digital penetration was intentional and that you formed the necessary guilty intent and therefore the act involving digital penetration of the vagina on the second occasion was a conscious and deliberate act.

68 We reject the contention that the verdicts returned by the jury are inconsistent. No other basis for regarding the conviction of the applicant as unsafe or unsatisfactory was advanced. It follows that ground 9 is not made out.

69 Grounds 6 and 7 are interrelated. They allege that:

The learned trial Judge erred in providing to the jury during the course of their deliberations the:

(a) transcript of the VATE interview conducted with the complainant;

(b) transcript of the Special Hearing conducted with the complainant;

(c) transcript of the VATE evidence of the complaint witnesses.

The learned trial Judge failed to properly direct the jury as to the manner in which the transcripts provided could be used during the jury's deliberation.

70 In support of ground 6, counsel for the applicant submitted that a criminal trial is essentially an oral process and that the hearing of oral evidence is intimately connected with the process of jury deliberation. The provision to the jury of the transcripts of oral evidence was said to be prejudicial because it created the risk that the jury would give disproportionate weight to the transcripts, which were not evidence in themselves.

71 Counsel conceded that s 19 of the Crimes (Criminal Trials) Act 1999 empowers a judge to provide a jury with written transcripts of evidence and that there is a trend towards providing juries with more written material.[36] However, he submitted that the discretion to do so must be considered in the context of the fundamental requirement of securing a fair trial for an accused. The risk of unfairness in this case was heightened, he said, because the jury did not have access to the VATE tape of the complainant and her friends,[37] or the video of the special hearing. It logically followed, it was submitted, that the transcripts of those tapes should not have been made available to the jury.

72 In support of ground 7 the applicant submitted that the judge should have given the jury two interrelated, but separate, directions. First, the jury should have been directed that the transcripts were not evidence and were provided simply as an aid to understanding the evidence, and secondly, that they should not give disproportionate weight to the transcripts as compared with the oral evidence in the case and the contents of the applicant's record of interview. It was submitted that the second proposed direction would have assisted in protecting the applicant against 'material risks of unfairness'.

73 There was some confusion at the hearing of the appeal relating to which transcripts were provided to the jury and at what stage of the trial. However, a chronology provided by the trial judge indicates that during the trial, the jury were given copies of the edited transcripts of the VATE evidence and the applicant's record of interview. These transcripts were provided when the evidence to which they related was given. Prior to the complainant's VATE being shown, a copy of the transcript of the contents of that tape was given to the jury. Similarly, a copy of a transcript of the applicant's record of interview was given to the jury before the video tape of his questions and answers was played. Her Honour's charge indicates that the jury was also given a copy of the trial transcript, which must have included the evidence given at the special hearing.

74 There is no clear reference in the chronology provided by the judge or on the record as to when the special hearing transcript or the transcript of the VATE interviews with LM and PD were provided.[38]

75 The submission that provision to the jury of transcripts of VATE evidence was, of itself, productive of a miscarriage of justice, must be rejected. Neither counsel objected to this being done. Further, as Ashley JA and Lasry AJA said in R v Morgan:[39]

Whilst reasonable minds differ on the issue of transcript being given to juries in criminal trials, it is mandated by s 19(1)(i) of the Crimes (Criminal Trials) Act.[40]

76 However before providing such transcript, the judge should generally instruct the jury that the evidence is what they see and hear in court, and that a transcript of a VATE is not evidence. As Mason CJ, Brennan and Deane JJ said in Butera v Director of Public Prosecutions:[41]

The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid it in understanding what conversation is recorded on the tape, and that it cannot use the transcript as a substitute for the tape if it is not satisfied that the transcript correctly sets out what it heard on the tape.[42]

77 In Butera a direction of this kind was said to guard against the danger that a jury may give greater weight to written than to oral evidence or might regard written material as corroborating oral testimony.[43]

78 At the commencement of the trial in this case the trial judge told the jury that she would be providing a copy of transcripts of the VATE evidence and that this could be used as an aide memoire only. Before the jury were given a copy of the VATE transcript, prior to the complainant's evidence, her Honour again reminded the jury that it was only an aide memoire which might assist them. She then gave the jury the usual instruction that it was what they heard on the tape that was the evidence in the trial and that the transcript was just an aid.

79 When providing the transcript of the applicant's record of interview for the jury to follow while the interview was played, her Honour told the jury again to:

listen again to what is said because what is said, what is spoken is the evidence, not what is actually typed there because sometimes in the transcription they can make errors on the words. So, it's a matter for you to determine what is said and ... what you say is said is the evidence in this matter but, that's just there for an aide memoire for you.

80 In our view her Honour's jury directions obviated the risk that the jury would give undue weight to the written record of the VATE contents. We have already referred to the fact that the judge directed the jury to relevant answers of the applicant in his record of interview, denying that sexual penetration had occurred.

The learned trial judge erred in finding that the complainant was properly made aware of her right to seek an exemption from giving evidence pursuant to Section 400 of the Crimes Act 1958.

82 At the time of the trial, s 400(6) of the Crimes Act 1958 provided:

Where the husband, wife, mother, father or child of the accused is called as a witness for the prosecution, the presiding judge or magistrate shall satisfy himself that the person so called is aware of his or her right to apply for an exemption pursuant to this section.

83 The section directed the presiding judge to exempt a child from giving evidence on behalf of the prosecution unless satisfied upon application made to him or her that, having regard to all the circumstances of the case, the interest of the community in obtaining the evidence of the proposed witness was outweighed by the likelihood of damage to the relationship between the accused and the proposed witness, or the harshness of compelling the proposed witness to give the evidence, or the combined effect of both.[44]

84 Prior to the special hearing, the trial judge determined that the complainant was competent to give evidence and that she was aware of her rights to apply for an exemption to give evidence, but chose not to exercise that right. At trial, the process by which the trial judge satisfied herself that the complainant wished to give evidence unfolded in the following way. Counsel assisting the complainant informed the judge that the complainant understood her right to seek an exemption but would not exercise it in the circumstances. Her Honour then had the following conversation with the complainant:

HER HONOUR: I understand today you had a discussion with a barrister ... is that correct?

COMPLAINANT: Yes.

HER HONOUR: What did you understand about that conversation you had ...?

COMPLAINANT: Umm, that I had a choice to talk today.

HER HONOUR: OK, well it's more than just a choice, you've got a right to apply to the court not to give evidence if you think it's going harm your relationship with your father?

COMPLAINANT: M'mm.

HER HONOUR: And yourself, and also that it would be too harsh for you to have to give evidence against your father in those circumstances, did you understand that?

COMPLAINANT: Yes.

85 The trial judge went on to explain what the term 'exempted' meant and asked the complainant if she knew what the term meant following the explanation. In asking those questions her Honour said that there was 'no compulsion' to give evidence and that:

You do have a right to be exempted and that's what the word exempted means, that is to be released from the obligation to have to give evidence.

86 On the basis of the complainant's answers to these questions, the trial judge was not satisfied that the complainant really understood that she had that right. The trial judge then asked counsel to re-explain to the complainant her right with the following specific instructions: 'explain to her the two processes ... [w]hat will happen in the event that that occurs [the giving of evidence] and what will happen in the event that that doesn't occur'.

87 When court resumed after counsel explained the matter to the complainant again, counsel informed the trial judge that the complainant had difficulty in understanding long words and that she did not understand the word 'obligation' but that she understood what her right was and wished to give evidence.

88 Counsel for the applicant submitted that the trial judge fell into error because her Honour failed to have the complainant explain to the court a second time her understanding of her right to seek an exemption.

89 There is no merit to these submissions. Whilst it is obviously important for witnesses within the classes contemplated by s 400 of the Crimes Act 1958 to be advised of and understand their rights, it could not be said that the right was removed from the complainant. The trial judge was satisfied, after having gone to some lengths, that the complainant wished to give evidence. No exception was taken at any stage. It follows that ground 1 is not made out.

90 No ground of appeal having been made out, leave to appeal against conviction should be refused.

91 The applicant relied on the single ground of manifest excess. The applicant submitted that when relevant sentencing factors were considered cumulatively, the sentence was manifestly excessive and fell outside the range of sound discretionary judgment.

92 The applicant's counsel conceded that this is a ground of appeal that does not admit of much argument.[45] Presumably, this submission was made in light of the fact that each of the mitigating factors relied on by the applicant were mentioned specifically by the sentencing judge.

93 The maximum penalty for incest is 25 years' imprisonment and for an indecent act in the presence of a child under 16 years it is 10 years' imprisonment. Having regard to the nature of the offending and the complainant's distress about her father's actions, we consider the sentence imposed was toward the low end of the range.[46] We see no error in the carefully considered sentences that were imposed.

94 The application for leave to appeal against sentence must be dismissed.

[1] R v Marijancevic [2009] VSCA 135; (2009) 53 MVR 14, [47] (Kellam JA and Vickery AJA).

[2] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 582 (Brennan J); R v AJS [2005] VSCA 288; (2005) 12 VR 563, 568-9 (Maxwell P, Nettle and Redlich JJA).

[3] Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205; R v Marijancevic [2009] VSCA 135; (2009) 53 MVR 14, [37].

[4] R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586, 593 (Redlich JA); R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 37-40 (Mason CJ, Brennan and McHugh JJ).

[5] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 637 (Gaudron A-CJ, Gummow, Kirby and Hayne JJ); R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577.

[6] [1968] HCA 66; (1968) 119 CLR 47, 54-55.

[7] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 43 (Mason CJ, Brennan and McHugh JJ).

[8] Ibid; R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586, 593 (Redlich JA).

[9] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ).

[10] Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202, 212 (Gaudron, Gummow, Kirby and Hayne JJ). Holland v The Queen (1993) 117 ALR 193, 200 (Mason CJ, Brennan, Toohey and Dawson JJ); R v AJS [2005] VSCA 288; (2005) 12 VR 563, 570-1.

[11] [2007] VSCA 187.

[12] R v AJS [2005] VSCA 288; (2005) 12 VR 563, 569-70; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 524-5 (Barwick CJ); R v Storey [1978] HCA 39; (1978) 140 CLR 364, 376 (Barwick CJ); Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 630 (McHugh J).

[13] R v Taylor [2005] NZCA 93; (2005) 21 CRNZ 1035, [128]-[129]; R v Campbell [2007] NZCA 121, [18]-[19]; R v Phan (2008) NZCA 310, [27]; R v Whipp [2007] NZCA 341, [24]; R v Dixon [2008] 2 NZLR 617, 624; R v Rajamani (2009) NZCA 225, [3].

[14] R v AJS [2005] VSCA 288; (2005) 12 VR 563, 569 ('AJS').

[17] Ibid 577, citing Randall v R (1991) 55 SASR 447, 449 (emphasis added).

[18] [2005] VSCA 288; (2005) 12 VR 563, 578.

[19] See also R v DD [2007] VSCA 317; (2007) 19 VR 143 where a jury direction that penetration could be 'ever so slight' was held to be sufficient in the circumstances of the case.

[20] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437.

[21] R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577.

[22] Evidence Act 1958, s 41G(5).

[23] [2007] HCA 55; (2007) 232 CLR 208.

[24] The case was an appeal from the Queensland Court of Appeal. There was no statutory equivalent to s 19 of the _Crimes ( Criminal Trials) Ac_t 1999.

[25] [2007] HCA 55; (2007) 232 CLR 208, 237.

[26] [2006] VSCA 72; (2006) 14 VR 11.

[28] R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408.

[29] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.

[30] [1971] HCA 55; (1971) 126 CLR 28.

[32] [2010] VSCA 61.

[34] MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ).

[35] R v Drury (1971) 56 Cr App R 104, 105.

[36] R v Thompson [2008] VSCA 144; (2008) 21 VR 135, [144] (Redlich JA).

[37] R v BAH [2002] VSCA 164; (2002) 5 VR 517; R v Lewis [2002] VSCA 200; (2002) 137 A Crim R 85.

[38] In contrast, the record indicated that transcripts of the complainant's VATE and the applicant's record of interview were provided to the jury before being played in court.

[39] [2009] VSCA 225.

[41] [1987] HCA 58; (1987) 164 CLR 180.

[44] Crimes Act 1958, s 400(3).

[45] See R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309 (Maxwell P).

[46] The complainant said she was 'really scared' and since she had slept in the applicant's bed many times before, she worried about whether he had done similar acts in the past.