P G v The Queen [2013] VSCA 9

Court of Appeal (Vic)|2013-02-06|Before: Harper JA, Maxwell P

DPP v [P G] (Unreported, County Court of Victoria, Judge Cotterell, 30 November 2010 (date of conviction), 31 January 2011 (date of sentence))

CRIMINAL LAW - Appeal - Conviction - Multiple counts of indecent assault and sexual penetration of a child under 10 years - Complainants the daughters of the offender - Whether evidence included as coincidence evidence without being properly identified - Whether trial judge erred in permitting jury to have regard to evidence given by younger sister of the complainants about incidents occurring when she was very young - Whether verdicts unsafe and unsatisfactory - Conviction on one count quashed - Appeal otherwise dismissed - Total effective sentence of 8 years and 5 months' imprisonment with a non parole period of 6 years and 6 months - Sentence reduced by reason of quashing of one count - Original sentences otherwise reimposed - Resentenced to 8 years' imprisonment with a non parole period of 6 years and 2 months.

1 I have had the considerable advantage of reading in draft the reasons for judgment of Harper JA and Beach AJA. I agree with the orders which their Honours propose, for the reasons they give.

2 They come in a long and immensely sad line, seemingly without pause or end. They are cases in which juries are asked to fulfil the onerous task of deciding whether allegations of serious sexual criminality have been proved beyond reasonable doubt. If they have, or if the accused has pleaded guilty, the judge must determine upon an appropriate sentence. And in either case, the accused has a right to seek leave to appeal. Rarely is there a clearly correct answer to all the questions posed; almost always the result will profoundly affect at least one of the protagonists.

3 These cases, as with all in the criminal lists, impose duties of considerable - in some instances awesome - significance upon those with the responsibility to decide. Allegations of sexual misconduct, especially if the accused is a close family member, are, however, in a class of their own. They not only often contain at least the seeds of tragedy, but also commonly pose problems of almost impossible difficulty. Frequent among these are multiple allegations of serious offending over many years - offending which is often said to have occurred not only long ago, but also when the victim was too young or too traumatised to remember specifics such as dates and places. Even where neither youth, nor a mind affected by trauma, nor any like factor, adversely affects the memory, details may be hard to recall. The more frequently offending occurred, the more will one episode tend in the mind of the victim to blur into another; but this circumstance could also be exploited by the

unscrupulously mendacious complainant to serve as a smokescreen for an inability to provide detail which, because (on this hypothesis) the allegations are false, does not exist. And not only do delays in disclosure cause problems in themselves for both prosecution and defence (and therefore also for the courts), but the victims not unusually have difficulty in explaining not so much the initial failure to report offending shortly after it is alleged to have occurred, but why allegations are made when they are made.

4 It is facile and quite wrong, but all too easy, to approach these allegations with preconceptions, such as (for example) that embodied in the nostrum that accusations of sexual misconduct are easy to make but difficult to defend. On the contrary, their making must frequently involve an extraordinary resolve born of considerable courage, or desperation, or both. Sometimes, on the other hand, false allegations spring from malicious dishonesty.

5 When the allegations are true, the sexual assaults which gave rise to them will be likely to have caused severe, perhaps irreparable, damage to the life of the victim. Where they are untrue, an innocent accused may suffer the unimaginable distress of being convicted of a crime or crimes the mere thought of which the particular accused may find abhorrent. And there is often no easy means for the impartial fact-finder to distinguish between the two possibilities, even though (or sometimes because) guilt must be proved beyond reasonable doubt.

6 This proceeding is illustrative. The relevant allegations were made by two of the appellant's three daughters not only years after the event, but after earlier allegations, made in isolation of any suggestion that other offences had been committed, had resulted in 1993 in the appellant's conviction following a plea of guilty. The complainants' explanation for their silence about other misconduct was that they had repressed the memory of the incidents which led ultimately to the charges and convictions with which this Court is now concerned.

7 For his part, the appellant's consistent position has been a denial that any of the offending now before this Court occurred at all. His refutation of wrongdoing was maintained at his trial, although he did not give evidence.

8 Regardless of the result of the legal process, the allegations once made have necessarily had a profound effect on all involved. When sentencing the appellant following his conviction, the trial judge described, with undoubted accuracy, the effect on the appellant's family (of which, of course, the appellant himself was once an integral part). It was, as her Honour said, 'devastating'.[1] For the appellant, this manifested itself in the severance of former family bonds and the prospect of many years in prison. For his daughters and wife, if their victim impact statements be accepted, the consequence has been and will doubtless continue to be years if not a lifetime of anguish. Some of the damage is irreparable, no matter what the ultimate result of the proceedings in court.

9 The fundamental importance of the courts doing everything possible to reach the correct result nevertheless remains. When the positions taken by the protagonists are diametrically opposed, however, the certain identification of the truth is sometimes unattainable. In the circumstances presented by cases of this kind, it is beyond the capacity of any human institution to get it right every time.

10 The appellant is the father of three adult daughters and two adult sons. All are the progeny of his marriage in 1975 to the children's mother. The two eldest daughters allege that he sexually molested them when they were in their early childhood. Between them, the two identify 15 specific incidents occurring on different dates in the almost seven years between January 1984 and September 1990. These gave rise to 15 charges: four of the sexual penetration of a child under the age of 10 years - all against his eldest daughter (to whom we shall refer as SC) - and the remainder of an indecent assault upon a person under the age of 16. The younger of the two complainants (to whom we shall refer as HS) additionally alleges that other similar offending, with which the appellant has not been charged, also became a feature of her father's behaviour towards her. For her part, SC gave evidence of one uncharged act which, if her evidence be accepted, constituted further paternal sexual misconduct.

11 SC was aged between six and 11 years old, and HS between five and nine years, when the offences against them were alleged to have occurred.

12 While he denies all of his daughters' present allegations, the appellant nevertheless admits that, in 1992, when SC was 14 years old, she had made a statement to the police alleging that he had on a date between 3 January 1986 and the following 15 February (that is, in the period shortly after SC's eighth birthday) assaulted her on occasions other than any of those the subject of these proceedings. Charges were laid, following which he had pleaded guilty to, and had been convicted of, one count of indecent assault (constituted by his digital penetration of her before moving his penis back and forth between her legs). In May 1993, the appellant was sentenced to two months' imprisonment for this offence, one month of which was suspended while one month was actually served. He was also convicted of two other charges of indecent assault.[2] These involved other complainants, and are for present purposes irrelevant.

13 It was not until 2005, however, that SC made the fresh allegations with which this Court is presently concerned. Her sister, HS, although being aware of her father's prosecution and sentence in 1993, remained silent throughout. Indeed, she did not approach the police until 2006. The complaints made in, respectively, 2005 and 2006 nevertheless resulted in nine charges in which SC was the complainant, while HS was the subject of the remaining six. After a trial which began on 22 November 2010, the appellant was on 30 November 2010 convicted by a County Court jury of all 15. His 1993 plea of guilty to the indecent assault of 1986 was put in evidence during the course of his 2010 trial. The jury in that trial were not told about the two other charges of indecent assault of which the appellant was convicted in 1993.

14 On 31 January 2011 the appellant was sentenced as follows:

Counts 1 and 2 concurrent with each other, with 4 months cumulative

Counts 3 and 4 concurrent with each other, with 5 months cumulative

Sexual Penetration of child under 10 [Crimes Act 1958 (Vic) s 47(1)]

20 years imprisonment [Crimes Act 1958 (Vic) s 47(1)]

Sexual Penetration of child under 10 [Crimes Act 1958 (Vic) s 47(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 47(1)]

Sexual Penetration of child under 10 [Crimes Act 1958 (Vic) s 47(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 47(1)]

Sexual Penetration of child under 10 [Crimes Act 1958 (Vic) s 47(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 47(1)]

Counts 12 and 13 concurrent with each other, with 5 months cumulative

Registered as sexual offender under Sex Offenders Registration Act with a reporting period for life.

15 The appellant now appeals against his conviction, and seeks leave to appeal against the sentences imposed upon him. On 10 August 2011, Nettle JA granted leave to appeal against conviction on several grounds, ground 1(a) of which was that the number of directions required in regard to tendency and coincidence evidence had the effect of over-emphasising the prosecution case at the expense of the defence case. By the time of the hearing of the appeal, however, ground 1(a) had changed to read:

The learned trial judge erred, in the charge to the jury, by importing into the category of 'co-incidence evidence' the evidence of the complainants' mother and their sister, without properly identifying that evidence.

16 There being no objection to the amended ground, and the Crown having addressed it in its amended response of 11 September 2012 to the appellant's written case dated 4 September 2012, the Court proceeded to hear argument upon it. The remaining grounds upon which Nettle JA granted leave to appeal were as follows:

Ground 1(b).

The trial judge erred in admitting the evidence of NS. Having regard to the evidence of HS, it became clear that the offence set out in Count 11 was alleged to have been committed when she was five or six years old, making NS between the ages of two or three.

Ground 1(c).

Having admitted the evidence of NS, the judge erred in directing the jury that they could accept that evidence in whole or in part, even subject to the warnings her Honour gave them in respect of it.

Ground 1(d).

The judge erred in not directing the jury to disregard the evidence of NS.

Ground 2.

The verdicts were unsafe and unsatisfactory.

17 On the morning of the appeal, counsel for the appellant sought, and was granted, leave to add four additional grounds to the appeal against conviction, as follows:

Ground 3

Count 1 as directed by her Honour (charge transcript, p 298) was supported by two different assaults, namely, touching of the vagina and touching of the penis.

Ground 4

Count 14 as directed by her Honour (charge transcript p 301) was supported by two different assaults, namely fingers in her vagina and placing her hands on his penis.

Ground 5

Her Honour's direction on count 2 would have caused confusion in the minds of the jury (charge transcript, p 298). The opening alleged that the count related to the touching of the applicant's penis whereas her Honour described it as an incident in the shower (actually count 3).

Ground 6

As her Honour directed (charge transcript, pp 299-300) there appears to be no evidence to support count 3 and/or count 4.

18 The appellant now also seeks leave to appeal against sentence. He relies upon the following grounds:

Ground 1

The sentence was excessive given the delay between (i) when the events were said to have occurred and the applicant came to be sentenced and (ii) between when the complaint was made and the applicant came to be sentenced.

Ground 2

The minimum term imposed on the applicant failed to sufficiently take into account the view the sentencing judge took that specific deterrence was of 'lesser importance'.

Ground 3

The sentence imposed was manifestly excessive.

19 The following account of the evidence called by the prosecution is based upon the Registrar's neutral summary. Similar accounts appear in the written submissions of both the Crown and the appellant. We make that point now, because in his grounds of appeal against conviction the appellant relies upon a mistaken attribution, in the charge given to the jury by the trial judge, of particular evidence to particular counts. In considering this aspect of the appeal, it is relevant that the correct attribution is uncontroversial.

20 The first two of the 15 charges of which the appellant has been convicted were based upon SC's allegation that towards the end of 1984, as she was approaching her seventh birthday, the appellant got into bed with her. He was in his underwear. He lifted her nightdress and put his hand on her underpants. He touched her vagina on the outside of her underwear (count 1 - indecent assault), then moved her hands onto his penis, rubbing it up and down (count 2 - indecent assault).

21 The next two charges arose out of SC's complaint that, in 1985, the appellant lifted her into the shower and then got in with her, lathered some soap and said 'Help daddy wash himself'. He guided her hand to his penis, which she washed (count 3 - indecent assault). The appellant then turned her around so her back was facing him, turned the soap on its edge and ran it down and around her bottom until it penetrated her vagina (count 4 - sexual penetration).

22 A few months later SC was, according to her, once more in the shower with the appellant. He again penetrated her vagina with a bar of soap. She complained that it hurt and he stopped (count 5 - sexual penetration). He then guided the complainant's mouth onto his penis (count 6 - sexual penetration).

23 In 1987, when SC was nine years old, the appellant entered her bedroom, got into bed with her, and pulled her underwear down to her knees. He then rubbed his penis on the outside of her vagina inside the top of her thighs (count 7 - indecent assault). The complainant pretended to be asleep. The appellant shook her and she pretended to wake up. He pulled her up so that she was kneeling next to him, and put his penis in her mouth (count 8 - sexual penetration).

24 The next alleged incident the subject of a charge is said by SC to have occurred on the night before the religious ceremony marking her confirmation. Her mother was away, leaving the appellant in charge. The complainant went into the appellant's bedroom and the appellant asked for a hug. She got into bed with him. He asked her to stroke his stomach and then moved her hand down to his penis and made her masturbate him (count 9 - indecent assault).

25 SC also gave evidence of an uncharged act that occurred at a birthday party in 1986. Her mother asked her to take her youngest sister, NS, to the bathroom to wash her hands and face, which had become covered with cake. The bathroom was locked. Her father told the two girls to go away. SC responded by saying that she had to wash her sister's hands and face. After a short time her father opened the door and SC saw HS standing on the vanity bench, with her clothes - especially her underpants - in disarray. SC saw that HS had been crying.

26 According to SC, the sisters never discussed this incident with each other.

27 HS gave evidence that, in about 1986 (she turned five that year), she was sharing a bedroom with her younger sister, NS. The appellant came into the room. HS was wearing red silk pyjamas, her favourites. He told her that she should sometimes try sleeping in her birthday suit, and explained what that meant. He unbuttoned her pyjama top, put his hands under the blankets and rubbed her vagina on the outside under her pyjama bottoms (count 10 - indecent assault). Someone came into the room and he desisted, said goodnight to her and to NS, and left.

28 Some months later, HS was in bed when she heard stomping in the hallway. The appellant opened the door and pulled back her doona. He lifted up her nightdress and dragged her underwear down. He put his fingers inside her vagina and moved his hands so roughly that his knuckles bashed against her pubic bone. He was angry: he said he had guns, and was going to shoot her mother. He left her with her underwear still down, her nightdress around her waist, and the doona thrown back over her (count 11 - indecent assault).

29 Another incident occurred when the girls' mother went out with friends of the family, leaving the appellant (in the words of HS as she gave her evidence in chief) 'at home with us.' During her mother's absence, HS showered with the appellant. Because she was short, his penis was not far below her eye level. She noticed that it was erect. While in this state, he used her two middle fingers to stroke the underside of his testicles, saying 'good girl' as he did so (count 12 - indecent assault). The appellant then asked HS to put his penis in her mouth. As the first step in this process he told her to poke out her tongue flat. He then rubbed his penis on it before attempting to angle it into her mouth (count 13 - indecent assault). The attempt having failed, he pulled her out of the shower, dried her with a towel, got back into the shower, and masturbated.

30 In 1987, when HS was at primary school, she woke up to find the appellant getting into bed with her. According to a version which, significantly, she gave for the first time at the trial, he put his fingers in her vagina, then took her hand and used it to masturbate himself (count 14 - indecent assault). She had not in any earlier account mentioned the digital penetration. The appellant ejaculated against her hip, though she thought at the time that he had urinated on her.

31 The final charge faced by the appellant (count 15 - indecent assault) arose out of the evidence of HS about an incident which she identified as having occurred on or about one of her mother's birthdays. When HS was eight years old, her mother received as a birthday present a family game called 'The Game of Life'. It came in a box, and the box declared that it was suitable for those of eight years or older. HS therefore qualified, and she assumed that she would be allowed to join in. She became very angry when, being the youngest of those eligible to play, she was excluded because otherwise the maximum number of players would be exceeded.

32 That night, HS was sleeping in the top bunk of one of the back bedrooms of the family home. According to her:

Dad had once again come in to say goodnight. The light was still on. At that time, he put his hands into my pants and used his fingers, inserted his fingers into my vagina on that occasion.

33 The following exchange then took place between the prosecutor and the witness:

Q: Had that touching occurred on other occasions?

A: It did. I have memories, it wasn't uncommon for him to come in on the pretext of saying goodnight. There were times when things would happen so quickly that there didn't seem much point to it. Other times there were longer visits in the middle of the night.

Q: When you say there were other visits in the middle of the night, what would happen?

A: More often than not, he would get into bed with me.

Q: Did he always get into bed with you?

A: No, not always.

Q: What did he do on the occasions when he didn't get into bed with you?

A: Kneel at the side of the bed. Often he put his hands into my underwear, sometimes he would use my hands on him.

Q: When you say 'Sometimes he would use my hands on him', to do what?

A: To masturbate him, or to stroke the underside of his testicles.

Q: You say that this behaviour or that type of behaviour occurred on other occasions than the one's we've specifically told the jury about?

A: That's right, there were many occasions. I've remembered more and more over the years. ... I haven't mentioned them because they have no legal merit, it would only just add that there were more.

Q: As to the more, would they have been occurring once a month, or once a week, or are you unable to say?

A: Unable to say [what was] the spacing between them, only ... I feel comfortable saying they happened regularly enough. Regularly enough to ... anticipate them.

...

Q: Going back to ... the 'birthday suit incident'. Now, that occurred in 1984 or 1985?

A: That's right, I believe I was five, possibly six, years old at the time.

Q: Between 1984, 1985 and 1989 - that's the 'Game of Life' occasion - so that's over a period of approximately four or so years?

A: Yes.

Q: [Was] the touching of your vagina as you've described, by the [appellant], ... spread over the whole period?

A: Absolutely, yes.

34 Ground 1(a) is that, when charging the jury, the trial judge erred by importing into the category of 'co-incidence evidence' the evidence of the complainants' mother and their sister, without properly identifying that evidence.

35 The relevant passage in the charge followed the identification by the judge of three categories of evidence:

There is the evidence of the incidents which are not the subject of any count, and then there is the evidence in relation to each of the complaints of each incident which is the subject of a charge and then there is also the evidence of the [1993] conviction, which I told you about.

36 Her Honour emphasised that the 1993 conviction was only relevant to the jury's consideration of the appellant's attitude towards SC; they could not use it when examining the counts in respect of which HS was the alleged victim. The judge then told the jury that if, and only if, they had no reasonable doubt that a particular incident occurred, they could use that finding as demonstrating 'that there was a sexual interest in the two complainants'. No complaint has been made about this direction, or about the instructions her Honour gave the jury immediately afterwards: namely, that they must not use those three categories of evidence (i) 'to reason that if [the appellant] committed the other offences, that he must have committed the offences charged'; or (ii) 'to prejudice [yourselves] against the accused'; or (iii) as an excuse for failing to examine each charge on its individual merits and with such individual scrutiny as would enable them to decide whether or not that particular charge had been made out beyond reasonable doubt. The judge then turned to the passage in contention:

I am going to move on to another category which is another way you can use that evidence. ... There is another way that the Crown argues that that evidence may be used. What is said by the Crown that all the events which have been described by the two complainants and in fact by the mother and the other sister, says that there are elements of such similarity in the stories told by the two complainants which are, to a certain extent - it is a matter for you, you may find some support in the evidence of the other witnesses. He [the prosecutor] says that there is such similarity between their two accounts that it is unlikely that these events occurred by coincidence and the prosecution says that you can use the unlikelihood of coincidence to infer that those events actually occurred. If you find them proved beyond reasonable doubt.[3]

37 The appellant's criticism of this passage is grounded in the proposition that, in it, her Honour imported into the category of 'co-incidence evidence' the evidence of the complainants' mother and their sister NS without identifying what that evidence was. But although the charge is not at this point a model of lucidity, it must have been clear to the jury that the only 'events' to which the judge referred were those incidents, each of them the subject of evidence given by one or other of the two elder daughters, in which they were assaulted sexually by their father. The contribution of the complainants' mother and of their sister to this evidence was so limited as not to require identification.

38 In her evidence, the mother of the complainants said nothing at all from her own knowledge about the events which resulted in the appellant being charged; and NS gave evidence, albeit from her direct observation, of only one such incident - that in which the appellant is said to have stomped down the hallway to the bedroom before assaulting HS. In doing so, NS merely corroborated the account which HS had given.

39 In our opinion, therefore, it could not with justification be said that the jury would have any difficulty in identifying the evidence the subject of ground 1(a) of the grounds of appeal. The jury were provided with a transcript of the evidence, and in the course of her charge the judge reminded them about what they had been told by NS, as well as summarising the evidence of the girls' mother.

40 If there were any possibility of confusion, it could only have arisen from the fact that the jury were told by her Honour that 'the events which have been described by the two complainants' concerning the misdeeds of their father were also described (at least to some extent) by their mother - when their mother did no such thing. But in our opinion this slight slip could not in the circumstances have confused the jury. The evidence of the mother was short. She was witness to none of the alleged offending. The jury could not have failed to appreciate that fact. And her evidence did give 'some support' to the account, put to the jury by HS, of the triggers for two episodes of what HS said was her recall of some of her father's misconduct. To that extent, the impugned passage of the charge was accurate.

41 In our opinion, ground 1(a) of the grounds of appeal is not made out.

42 Each of these three grounds relies on the proposition that NS, the youngest of the sisters, was necessarily an unreliable witness because at the time of the only incident about which she gave evidence she was too young to remember it. It will therefore be appropriate to examine the three grounds as a group. For convenience, we set them out below, as they were framed in the appellant's revised notice of appeal:

Ground 1(b)

The learned judge erred in admitting the evidence of NS. Having regard to the evidence of HS, it became clear that the offence set out in Count 11 was alleged to have been committed when she (HS) was five or six years old, making NS between the ages of two or three.

Ground 1(c).

Having admitted the evidence of NS, the learned judge erred in directing the jury that they could accept that evidence in whole or in part, even subject to the warnings her Honour gave them in respect of it.

Ground 1(d).

The learned judge erred in not directing the jury to disregard the evidence of NS.

43 As we have noted, NS gave evidence of one incident only, albeit from her direct observation. She answered 'yes' when the prosecutor asked her whether she remembered the appellant 'storming' into the bedroom which she was then sharing with HS. It was dark, and both girls were in bed. The appellant turned on the light, and NS saw him. The transcript of her evidence in chief continues:

Q: How would you describe his presentation or his mood?

A: Very angry.

Q: And you were awake?

A: Yes.

...

Q: What occurred?

A: ... After he turned on the light, he went over to her [HS's] bed.

...

Q: Yes?

A: And pulled her pants.

Q: And?

A: And he shoved his ...

Q: Sorry, he pulled her?

A: He pulled her pants down.

Q: Pulled her pants down, yes, and?

A: He shoved his hands inside her vagina. Held her down and ...

Q: Just stopping there. What did he put inside her vagina?

A: His hand.

Q: Hand?

A: Fingers.

Q: Right, and was he using both hands to do that, or where was his other hand?

A: Holding her down, and the other one was in between her legs.

Q: As he was doing this, did you notice anything in regards to her body?

A: She was moving pretty vigorously, pretty roughly on the bed. Her body was moving up and down.

...

Q: It stopped eventually?

A: Yes.

Q: What did you see?

A: He stopped, he pulled his hand out and pulled up her pants.

...

Q: And as he was about to leave the room, did he do anything or say anything?

A: Yes, he turned around and said, 'If you tell anyone, I'll kill you and kill your mother.'

Q: Did he say anything about how he might do that?

A: With a gun. 'Shoot your mother.' 'Kill your mother'.

Q: When your father left the room, did you make any observations of your sister:?

A: ... I made an observation that she was quiet, and she wasn't responding. I asked her if she was OK. She just rolled over. I believe she started to cry.

44 A two-year old child is unlikely to ask her five (or possibly six) year old sister questions about how she felt after an experience of the kind NS described. Indeed, the description itself would be beyond the unaided capacity of a child of two, even given that the maturity of subsequent years would enable the adult to give words to what at the earlier time would have been beyond articulation. Not so, perhaps, if the child was three or four. These considerations are hardly helpful, however, because they depend upon the evidence of NS being reliable; and if the jury are satisfied that it is, then her age becomes irrelevant.

45 The issue is whether NS was so young that no jury could properly rely upon what she told them - that is (to adopt the words of Nettle JA in giving judgment on an interlocutory appeal in this matter) whether '[i]t is remarkable to the point of being incredible that she [NS] would, at such an age, recollect an event of that kind, let alone with the sort of detail which is deposed.'[4]

46 Nettle JA was speaking of a paragraph in the depositional material used in the appellant's committal proceedings. In that paragraph, NS told of a quite different incident which took place, if at all, when she was two years old. In a judgment with which Neave and Harper JJA agreed, his Honour ruled that the evidence in question not be called at the appellant's trial; and, in accordance with this ruling, it was not. No such ruling was made in relation to the evidence now under consideration.

47 According to NS, the incident about which she gave evidence at her father's trial occurred after she had seen him cleaning guns on the kitchen table, something which, as NS recalled, prompted her mother to tell the appellant that she (NS's mother) did not like guns in the house. Later, when NS was in bed (sharing a room with HS, who was also in bed) the appellant entered, very angry. NS then saw her father digitally penetrate her sister's vagina - an act which, as alleged, resulted in count 11.

48 As framed in the presentment, this incident (count 11) took place between 19 September 1986 and 18 September 1988 - a period of two years, at the commencement of which NS was a month or so into her third year and at the end of which she was at the beginning of her fifth year.

49 According to the evidence in chief of the victim (NS's sister, HS) an earlier incident, that involving the red silk pyjamas and which resulted in count 10, occurred when she (HS) was 'about five or six years old' that is, 'around 1986'. HS then agreed with the prosecutor that the incident which was preceded by her father stomping down the hall and which gave rise to count 11 took place 'some months' later.

50 NS was asked whether she could say when the stomping incident occurred. She said that she could not; indeed, she did not 'feel comfortable giving a year'. She could not, she added, 'be 100% accurate.'

51 The mother of the complainants remembered 'the only real occasion' when she had an argument with her husband about his guns. As she described the origins of the dispute, 'He brought [the guns] into the house and laid them on the kitchen table ... and sort of broke them down and started cleaning them.' The jury may well, and with justification, have taken this to be the same episode as that described by NS as preceding the stomping down the hall and the digital assault upon her sister HS. Asked in cross examination about the age of NS at that time, the girls' mother responded 'she would be three, I would say. ... Three, maybe four.'

52 This being the state of the evidence about the age of NS at the relevant time, it could not be concluded that she was then no more than two. Three is her more likely age, and she may have been four. It was in these circumstances that a County Court judge (not the trial judge) ruled that the evidence proposed to be given by NS about this incident was not inadmissible by reason of her age. This was a ruling with which, in the course of the subsequent interlocutory appeal, this Court was not asked to interfere.

53 In charging the jury, the trial judge told them that NS 'would have been somewhere between two and three years old' when her father stomped into the bedroom. In the light of the mother's evidence, this was, if anything, unduly favourable to the appellant. Her Honour went on to say to the jury that 'you have to assess her [that is, NS's] evidence on that basis, that she was a very small child when she observed these matters, and you need to look at that very carefully.' Later in her charge, the judge repeated the statement that NS was 'two to three years of age at the time', and that accordingly, while the assessment of all witnesses was for the jury, they 'would need to assess her evidence bearing that matter in mind.' In addition, in the context of a warning about the possibility of collusion between the sisters in giving their evidence, the judge said:

You may look, however, at the evidence of NS, that is the youngest sister - who was living in America at the time [when collusion may have taken place] you may recall - and look at her evidence bearing in mind her age and consider whether it is possible that she heard something, that there was something else which has entered into her mind. There is no evidence of it, but that is open for you to look at that when you are judging whether or not you should accept her evidence in part or in whole.

54 Given these warnings, and given the circumstance that it was open to the jury to find that NS was - at the relevant time - over the age of two, the trial judge did not in our opinion err in admitting the evidence of NS, or in failing to direct them that they could not use it, or in not directing them to disregard it.

55 In the result, ground 1 cannot succeed in any of its manifestations.

Ground 2 - the jury's verdicts are unsafe and unsatisfactory.

56 In a pre-trial application in the County Court, the appellant sought a permanent stay of all 15 of the charges he then faced and of which he was subsequently convicted. The application was refused. The appellant sought leave to appeal to this Court against that refusal. We have already referred to the resulting judgment: PG v The Queen.[5]

57 The basis of the appellant's case was similar in relation to each complainant. He submitted that it would be unfair and oppressive were he, having been convicted in 1993 of a sexual offence committed against SC, to now be prosecuted for such offences where these were allegedly committed before his conviction yet were not then raised against him. He further submitted that it would be an abuse of process were he to face charges in respect of which HS was the complainant, because in 1988 her mother had asked HS if the appellant had sexually interfered with her, and she then denied that he had. HS made similar denials in 1992, at the time when her elder sister had brought up the claims which resulted in the 1993 convictions.

58 In its judgment in PG v The Queen, delivered on 19 October 2010, this Court unanimously dismissed the application for leave to appeal against the refusal by the County Court of the application for a permanent stay.

59 In contending that the verdicts in the present appeal were unsafe and unsatisfactory, the appellant sought to revisit some of the arguments put in the 2010 application for leave to appeal. It is now contended that: (i) in 1992, SC made the allegations which resulted in the 1993 conviction, but failed to mention any of the assaults the subject of the present appeal; (ii) when asked in 1992 whether she had been sexually abused by her father, HS denied that she had; (iii) SC admitted during the course of giving evidence at the appellant's trial that when young she was a 'chronic liar'; (iv) on the complainants' own account, the alleged offending occurred when they were very young (between the ages of five and 11) and the allegations were made some 15 years or more later; (v) there is very little evidence to support the allegations; (vi) SC's evidence is weakened by her assertion that her memory of the several incidents about which she complains came to her at different times in a series of what she referred to as 'flashbacks'; (vii) HS's recall of two of the incidents about which she gave evidence - that in which her father allegedly suggested that from time to time she should sleep in her 'birthday suit', and that in which, as she described it, the appellant digitally penetrated her after stomping angrily into the bedroom - came to her years afterwards as a result of her memory being triggered; and (viii) there was ample opportunity for collusion between the sisters.

60 In The Queen v Klamo,[6] Maxwell P, with whom Vincent and Neave JJA relevantly agreed, said that the approach required of appellate courts in considering the 'unsafe and unsatisfactory' ground involves the following steps:

The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In considering that question, the appeal court must bear in mind that the jury has the prime responsibility of determining guilt ... and has had the benefit of seeing and hearing the witnesses.
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

61 A reference to a passage in the judgment of Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen[7] is also apposite (emphasis as in the original):

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

62 Every one of the arguments upon which the appellant relies in support of ground 2 is limited to making good the general proposition that, given their background circumstances, neither SC nor HS is a reliable witness. They were very young when these things are said to have been done to them, so not only their memory but also their understanding of these events is unreliable. They did not speak out when they had the opportunity to do so. They also had the opportunity to collude with each about the evidence they would give. One of them (SC) was, in her early childhood, a chronic liar.

63 Each of these points is validly made. But they go to issues of what for convenience we shall refer to as general credit; and the assessment of the credit of a witness is pre-eminently a matter for the members of the jury. They are the judges of the facts, and one aspect of this is the credibility of those giving evidence about the facts. In the absence of indicators of unreliability springing from (for example) internal inconsistencies, and equally in the absence of discrepancies of substance between the evidence of one witness and that of another or others, or of evidence (as opposed to the opportunity) of collusion, it is the jury which has an overwhelmingly greater capacity than a court of appeal to resolve doubts about the credibility of witnesses. And this is so because 'the advantage [of] seeing and hearing the evidence'[8] is crucial in cases in which any doubt about the verdict arises not out of any specific flaw in its factual or legal basis, but only out of some generalised reasons for thinking that the credit of the relevant witnesses might be open to challenge.

64 The distinction between the role of the judge on the one hand and the jury on the other is an ever-present element in any general survey of the procedural, if not the substantive, aspects of the criminal law. Thus, in Dupas v The Queen,[9] this Court considered, among other things, the requirement imposed by s 137 of the Evidence Act 2008: namely, that in a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. In a joint judgment, a bench of five judges (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA) noted that, when assessing the probative value of the evidence for the purpose of weighing it against the danger of unfair prejudice, the judge may need to consider the quality and reliability of that evidence.[10] In that context, the Appeal Division of this Court in Rozenes v Beljajev,[11] expressly affirmed the distinction between credibility (being the province of the jury) and reliability (which the judge was to consider). In the latter case, the Court said:

The judge referred to the distinction drawn by Vincent J in R v Pierce[12] at 275-276 between the reliability of evidence (a matter to which the trial judge might properly have regard) and the credibility of a witness and his or her evidence (a question for the jury). When Vincent J in Pierce distinguished between reliability and credibility his Honour plainly had in mind the constitutional position of the jury as trier of facts. But unfortunately in the present case the judge embarked upon the hearing of the application on the basis that one of the things which he should do was determine whether the evidence of Hills, when given, would be true and correct. This failed to observe the distinction which his Honour had drawn between reliability and credibility and meant that the judge had set himself the impossible task of determining whether evidence would, if and when it was given, be true and correct ...[13]

65 The present appellant's submission on ground 2 is tantamount to saying that this Court must allow an appeal whenever a conviction follows an earlier prosecution which afforded the complainants an opportunity to disclose the additional offending the subject of the appeal, and which they failed to take. In other words, the appellant would have this Court accept that, in this case, the complainants' failure so compromised their credit that no reasonable jury could reach a guilty verdict based upon their uncorroborated evidence. The circumstances that the alleged offending happened years before, and that the complainants were then very young, could not be decisive because they are commonplace aspects of prosecutions which are nevertheless successful at trial and immune from successful challenge on appeal.

66 The appellant's case at this point is very close to a repetition of the assertion that the appellant's prosecution was an abuse of process.

67 The appellant asks the Court to take into account, in addition to the considerations to which we have already referred: (i) SC's admission that, when she was young, she was a 'chronic liar'; and (ii) the fact that both SC and HS ascribed to 'flashbacks' their failure to report the offending when they had an opportunity to do so. But the jury were entitled to conclude that SC's admission bolstered her present credit; and the evidence about flashbacks was merely an aspect of the credit issues arising out of the failure to report. The trial judge dealt with these issues in her charge, and no exception was taken to that aspect of it.

68 In our opinion, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt; which is to say that this Court is not in a position to conclude that the jury must, as distinct from might, have entertained a doubt about it. It follows that ground 2 must fail.

Ground 3 - Count 1 as directed by her Honour was supported by two different assaults.

69 Count 1 was not in fact 'supported' by two different assaults. As noted in paragraphs [19] and [20] above, both prosecution and defence accept that count 1 was based upon but one assault: an allegation that the appellant touched his eldest daughter's vagina on the outside of her underwear. At one point in her charge, however, a point at which her Honour attempted to align allegedly offending incidents with the count to which they gave rise, she wrongly - albeit indirectly - ascribed two different assaults, those with which counts 1 and 2 were respectively concerned, to count 1 alone. This error then affected her Honour's ascription of the offending which resulted in counts 3 and 4. The judge told the jury:

During the Crown case, the prosecution has led evidence in relation to the activity which is the subject of each count on the presentment and the first nine counts relate to the complainant [SC] and firstly she says that when she was nearly seven ... her father got into bed with her wearing jocks, lifted her nightie, put his hand into her underpants and touched her on the vagina outside.

70 This activity was the subject of count 1. Unfortunately, however, the judge failed at that point in her charge to note that that was so. Instead, she continued:

He then moved her to another position and held both her hands on his penis and moved them up and down and this incident finished when he left the room. What I am doing is paraphrasing. I am giving you a brief version of what the evidence was.

71 Her Honour here described the incident which was incorporated into count 2. But the judge failed to make the correct connection. On the contrary, she turned to the evidence going to count 3, but ascribed that evidence to count 2. She said:

In relation to count 2, her evidence was that in 1985 her father lifted her into the shower, got in with her, lathered up some soap and said 'Help daddy wash himself.'

He gave her suds on her hands and guided her hands to his navel and legs, then guided her to cup his testicles and told her to be gentle, then guided her hand to his penis, which she washed for a while, and that is the second count, count 2, which is also indecent assault.

72 The self-perpetuating succession of errors ended when her Honour incorrectly amalgamated counts 3 and 4, when in fact her description was of the incident constituting count 4 alone:

Counts 3 and 4 are during the same period in the shower. He turned her around so her back was to his front, turned the soap on its edge, and ran it down her bottom and into the opening of her vagina while holding her with his other hand on her chest. She said a corner of the soap and part of his finger actually went into her vagina, and that is the first count of sexual penetration, that being manipulating the object, which was the bar of soap.

73 In short, the jury should have been reminded that the act of touching the vagina resulted in count 1, and the holding of SC's hands on his penis resulted in count 2, while the offending in the shower gave rise to two charges: one (count 3) involving the cupping of the testicles, and the other (count 4) involving the rubbing of the soap inside the vagina.

75 Nor were they mistakes which were likely to cause a problem for the jury. Correct accounts were given elsewhere in the charge, and probably in the addresses of counsel. Certainly, in her final address, counsel for the appellant identified counts 1 and 2 as being based upon evidence which she categorised as implausible.[14] The jury had also been told by her Honour, as she began her exposition of the elements of the two relevant classes of offence, that charges 1, 2, 3, 7, 9, 11, 12, 13, 14, and 15 were charges of indecent assault, the elements of which she then identified. Shortly afterwards, her Honour turned to the second of the two classes, namely, sexual penetration. The judge noted that charges 4 and 5 (each of which, as the judge reminded the jury, involved the use of soap to penetrate SC's vagina when she was with him in the shower) fell into this category. So when, a little later in her charge, her Honour said that '[c]ounts 3 and 4 are during the same period in the shower', and '[h]e turned her around so her back was to his front, turned it on its edge, and ran it ... into the opening of her vagina', it would have been clear enough to the jury that the judge was then speaking of count 4. It would, we think, have been equally clear that count 3 related to the cupping of the testicles in the shower, and count 2 to the masturbation in SC's bed; and that count 2 immediately followed the initial touching of the outside of the vagina (count 1).

76 It is also of relevance that the jury had the transcript with them in the jury room as they considered their verdict. They would have found, shortly after SC began her evidence in chief, the passage in her evidence in which she spoke of the first two acts of offending which, she said, the appellant committed against her:

Q: And did something occur, and could you tell the jury what was the first thing you noticed?

A: I awoke to [the appellant] pulling back the bedsheets.

...

Q: What did he do?

A: He put his hands in my pants [and] ... he touched me outside of my vagina.

...

Q: And do you have any idea of how long that touching continued for?

A: ... [H]e at the same time ... actually took my hand and put it in his jocks.

77 There could be no doubt that SC was here speaking of the two incidents, the one following immediately after the other, which resulted in, respectively, counts 1 and 2.

78 In our opinion, the mistake of the trial judge as identified in ground 3 was immaterial. It certainly did not result in any substantial miscarriage of justice. This ground cannot, therefore, be upheld.

Ground 4 - Count 14 as directed by her Honour was supported by two different assaults.

79 Count 14 was based upon allegations made by HS. In her evidence in chief, she referred to not one but two assaults constituting the incident giving rise to this count. According to her, the appellant not only caused her to masturbate him - something about which she had previously complained - but also inserted his fingers into her vagina. She had not made this allegation before. It came to light in the following exchange with the prosecutor (emphasis added):

Q: All right, if I could take you to the time when you were at [X] Primary school, and particularly during the year 1987, did something that you remember quite inappropriate occur?

A: I do.

...

Q: Right?

A: I remember that he'd gotten into bed with me. ... I remember that he used his fingers in my vagina at that time. I remember that he also took my hand in his hand and put it to his penis, wrapped it around from the shaft from the base of it. And I remember that using his hand he used mine to masturbate him. I could also feel his penis against my hip. ... I do remember that he came against my hip, he ejaculated. ... I thought he'd peed on me. I was grossed out.

80 In the course of delivering her charge, the trial judge reminded the jury of this evidence not once or twice, but three times. In the first of those three references, when attributing to each count the evidence called in support of it, her Honour told the jury:

In relation to count 14, her [HS's] evidence was that this incident occurred when she was at [X] Primary School in 1987. She was woken by her father getting into bed with her. He placed his fingers in her vagina, then took her hand, placed it on his penis and used her hand to masturbate himself. She could feel his penis against her hip and he ejaculated. She was thinking that he had peed on her.

81 The second such reference was made as her Honour took the jury through the evidence of each witness. Of this aspect of the evidence of HS, the judge said:

Then she told of an incident which occurred when she was at [X] Primary School in 1987. She recalled that she had been to a party, and was woken by her father getting into bed with her. She was sleeping in the front room with her sister NS. She recalled he used his fingers in her vagina at that time. He also took her hand, placed it on his penis, and used her hand to masturbate. She felt his penis against her hip, and thought he had peed on her. She did not know what ejaculation was.

82 Her Honour's third reference to this incident was to the evidence which HS gave about it during cross examination. Her Honour put it in the following terms:

In relation to the [X] Primary School incident, she ... said he had calluses and rough edges on his nails, but she did not have any bleeding as a result of him putting his fingers in her vagina. She said he used her hand to masturbate himself.

83 In preparing for this appeal, each party adopted her Honour's course of assigning to each count the evidence relevant to that count. In the amended written case for the appellant dated 4 September 2012, his counsel, when speaking of count 14, said (our emphasis):

The complainant was woken by the [appellant] getting into bed with her. The [appellant] placed his fingers inside her vagina, then took her hand, placed it on her penis and used her hand to masturbate him.

84 The Crown's response to the appellant's amended written case provides a significant contrast. Its account of the circumstances upon which count 14 is based omits any reference to penetration of any kind:

On an occasion in 1987, the [appellant] got into bed with HS, and used her hand to masturbate himself, ejaculating against HS's hip (count 14).

85 During the course of the trial itself, defence counsel (who did not prepare the amended written case, or appear on the appeal) challenged the version which was later to be replicated in her client's written case of 4 September 2012. On Friday 26 November 2010, with the charge due to begin on the following Monday, counsel drew the Court's attention to the original statement made by HS, and to the prosecution opening at the beginning of the trial. Neither, as counsel recalled, mentioned that the appellant had digitally penetrated the victim. At each of those points in the progress of the case, the subject of the count was masturbation, neither more nor less.

86 The Crown mounted no challenge to counsel's recollection. Indeed, a little later in the discussion, defence counsel read directly from the prosecutor's opening while adding a comment of her own:

'On an occasion during 1987 when NS was five or six' et cetera at cetera 'the accused tried to make SH masturbate him and held her hand to his penis' et cetera. There's no mention in the opening of the fingers in the vagina. What I'm submitting is that there may now be two acts for one count, so that - I'm only raising that as an issue, your Honour.

87 Immediately thereafter, the judge asked the prosecutor (who to that point had contributed to the discussion only by referring the judge to the page of the transcript which contained the relevant portion of HS's evidence in chief) what he wanted 'to say about that'. He replied: 'Nothing.' Her Honour in turn responded: 'I think it just has to be left at that', to which counsel for the appellant answered: 'As your Honour pleases.' And there it was left, until the judge thrice recounted the evidence, including the reference to the digital assault, in her charge.

88 There was no challenge to her Honour's approach. But defence counsel had explicitly drawn the judge's attention to a material addition to the prosecution case on count 14.

89 In our respectful opinion, her Honour was mistaken in proceeding as she did. It may have been unfair at that late stage in the trial to amend the presentment by the introduction of a fresh count alleging an additional offence based upon the evidence that the appellant digitally penetrated his daughter. But, at the least, the Crown ought to have been required to elect between that alleged penetrative assault and the indecent act constituted by the alleged masturbation. A count which included each was duplicitous. This, it may be noted, is a problem which was avoided with a number of other counts (for example, counts 1 and 2), where - as with count 14 - two assaults were committed, one immediately after the other, in the same episode of criminal misbehaviour; but (to take counts 1 and 2 as examples) in one assault (count 1) the appellant touched SC on her vagina, while in the other (count 2) he put her hands on his penis, thus through her agency masturbating himself. Each of the incidents in the shower, whether with SC or HS, likewise involved two assaults, resulting in each case in two counts.

90 R v Trotter[15] was a case with many similarities to this. In Trotter, the complainant (a boy of 12) alleged in a statement to the police, and in his evidence in chief, that he was the victim of an indecent assault which was committed while he was watching television in a bedroom of a house to which the applicant had, without his parents' knowledge, taken him. The applicant was accordingly charged with two counts of unlawfully taking a boy under the age of 16 with intent to deprive the boy's father of possession of him; and one count (count 3) of unlawful and indecent assault. But then, in re-examination, the complainant mentioned for the first time another indecent assault which - he said - occurred in the bathroom, and at earlier time than that which took place in the bedroom. As alleged, both assaults consisted of touching the boy's genitals.

91 The Court of Criminal Appeal of this Court enquired about the terms in which, at the applicant's trial, the Crown opened the case to the jury. In response, the Court was informed that the prosecutor - doubtless unaware of the prospect of evidence of an additional assault - said in his opening address:

... no more than that an indecent assault had occurred at the [applicant's] flat without specifying further details. The prosecutor stated to the learned trial judge that the indecent acts consisted of the acts of the applicant in touching the boy on the private parts, no matter where they occurred. On the face of it, this left it open to the Crown to prove either of the assaults.[16]

92 This information was one of the factors behind the following passage in the judgment, a passage which is particularly pertinent in the circumstances of the present appeal:

Either the first or the second assault would have been within the terms of the presentment. In other words, count 3 on the presentment was not bad on its face; it was apt to cover either of the indecent assaults ... . Strictly speaking the learned trial judge could have required the prosecutor to elect which incident he was relying on or to amend the presentment so as to charge two separate indecent assaults (as, for example, in the case of several incidents of shoplifting in different departments of a large store). The critical question was whether the learned trial judge was of the view that having regard to the merits of the case the required amendments could not be made without injustice. If the learned trial judge had been of the view that injustice would have been caused to the applicant by proceeding to verdict on a presentment as so amended, he could have discharged the jury without verdict and adjourned the trial.

...

In his charge the learned trial judge read to the jury the evidence regarding the assault on the bed but then referred to the assault immediately after [the complainant] had got out of the bath.

We do not think that the learned trial judge erred in admitting the evidence of the second (scil. 'first') indecent assault. The vice was that the prosecution was not required to specify which assault was the indecent assault the subject of count 3. The learned trial judge ... accepted the prosecution's statement that the indecent assault consisted of the acts of rubbing the boy on his private parts, no matter where those acts occurred. On the face of it this left it open to the Crown to prove either of the assaults.

The applicant's case was that he had perpetrated neither of the assaults. The jury, however, obviously did not accept the applicant's denials.

The learned trial judge, in his charge to the jury, did not advert to the circumstance that the presentment only charged one indecent assault whereas the evidence, as narrated by the trial judge in his charge, disclosed two separate incidents each of which was capable of being adjudged to be an indecent assault. His charge contained no directions to the jury as to how to deal with that situation.

Whilst it is clear that the jury must have been unanimous that the applicant committed an indecent assault on [the complainant], it is impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of the indecent assault. All members of the jury must have been unanimous on the fact that the applicant had committed an indecent assault ... , but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault. There is no way of knowing which was the act which the jury found to be an indecent assault. If the applicant were indicted again on a presentment in the same terms but specifying one or other of the two indecent assaults, could the applicant plead autrefois acquit?

In our view, then, the conviction of indecent assault is uncertain and there has been a miscarriage of justice.[17]

93 Having come to that conclusion, the Court quashed the conviction and ordered a new trial.

94 As in Trotter, the Crown in the present prosecution opened on the basis that the relevant count concerned but one assault. In truth, however, the evidence in each case revealed that the victim had been assaulted twice. It is not to the point that, until the victim gave his or her evidence, the Crown was in neither case aware of this. In the present case, the insertion of the appellant's fingers into his daughter's vagina was not only a distinct assault in itself, but was quite different to that constituted by having his daughter masturbate him. It is true that one followed immediately after, and in the same precise location as, the other. That was not so in Trotter, where time and space (though not much of either) separated two assaults which were otherwise similar in nature. But the material consideration is not that Trotter's case and the present appeal differ in those respects; it is that in each case the two assaults were in their nature quite separate and distinct. This case and Trotter are alike in that, while in each of them all members of the jury must have agreed that at least one indecent assault had been committed, some might have arrived at that conclusion on the basis of the digital penetration (or the incident in the bedroom), and others on the basis of the act of masturbation (or the incident in the bathroom). There is no way of knowing which was the act which the jury found to constitute the offence. If either Trotter or the present appellant were indicted again on a presentment in the same terms, but specifying one or other of the two indecent assaults, could the offender plead autrefois acquit - or autrefois convict?

95 During the course of the hearing of the appeal, senior counsel for the Crown was granted permission to put in a further submission, on this occasion dealing with the correctness of the contention that, while all members of the jury must have unanimously agreed that the applicant had committed an indecent assault, in this case some members of the jury might have arrived at that conclusion on the basis of one of two possible incidents and others on the basis of the other - with no majority agreeing on either. In other words, the Crown was afforded the opportunity to deal with the application to this case of the point made by the Court in Trotter.

96 Those submissions were received on or about 5 October 2012. In our opinion, nothing in them answers the difficulty, for the Crown, that the evidence disclosed two assaults, that they were joined in one count, and that that count was accordingly duplicitous because it is impossible to say that the jury was unanimous in the position it took on either one or other of the two.

97 For these reasons, ground 4 must, in our opinion, be upheld. It also follows that the appellant's conviction on count 14 must be quashed.

Grounds 5 and 6 - confusion about the evidentiary basis of counts 2, 3 and 4.

98 These grounds rely upon the confusion which, as the appellant suggests, must have infected the members of the jury in their consideration of counts 2, 3 and 4. As an incident of this, ground 6 would have it that '[a]s her Honour directed there appears to be no evidence to support counts 3 and/or 4.'

99 We have already given our reasons for concluding that the jury would not have been confused - and would have appreciated not only that there was evidence to support each of counts 3 and 4, but also that that evidence was sufficiently identified.

100 Neither ground 5 nor ground 6 has any substance.

The application for leave to appeal against sentence

101 The conviction on count 14 having been quashed, the application for leave to appeal against sentence falls away. It is nevertheless necessary to re-sentence the appellant on the remaining counts. In doing so, the fact that the offences were committed by a father upon two of his daughters is a paramount consideration.

102 There are many obligations of parenthood. Those persons who have relevant expertise will also have a greater claim than judges to give detailed consideration to these; but about one obligation there can be no doubt. Parents must refrain from the knowing infliction of unnecessary harm upon their children. The appellant was criminally in breach of this fundamental duty. The gravity of his offending is of particular importance in deciding upon the appropriate sentence.

103 This is not the occasion to attempt to allocate degrees of seriousness to the crimes a parent might commit against his or her child. It is enough to observe that the sexual penetration by the parent of that child is a total repudiation of not only the high obligation of trust which ought necessarily to adhere to the relationship between the two, but also of the respect which every person, but especially a parent, owes to the psychological integrity of everyone else, especially his or her children.

104 The other indecent assaults of which the appellant stands convicted display a lesser, but nevertheless serious, failure to fulfil a core parental duty: the provision of a safe, loving and nurturing environment. Rather, he subjected two of his daughters to multiple instances of sexual abuse extending over upwards of four years in each case; and in the case of HS, extending on numerous occasions beyond the charged acts, which cannot therefore be regarded for sentencing purposes as the only examples of that offending behaviour against her. Indeed, when sentencing the appellant the trial judge accepted that 'this was a course of behaviour on your [the appellant's] part where you would enter the room where your daughters, in particular HS, were sleeping on the pretext of saying goodnight and would take advantage of those circumstances in order to sexually assault your daughters.'[18]

105 That, according to HS, was what happened to her. SC gave no like evidence, and for our part we do not think that the appellant should be sentenced on the basis that SC was abused on any occasion save for those (including the assault giving rise to his 1993 plea of guilty) which resulted in convictions. In any event, the uncharged acts - to the extent that they are proved - are significant only in establishing that the charged acts were not isolated instances; and they, having been proved, occurred with sufficient frequency to establish of themselves that abuse was an integral part of the life of each child.

106 The appellant's own childhood was not free of considerable hardship. He is deserving of much sympathy for that, but it is a mitigating factor of small significance. Childhood hardship is not a reason for parental criminality; and no excuse for it, either.

107 There was a path, open to the appellant, which if taken would have markedly lessened the ultimate impact, in determining the appropriate sentence, of the gravity of the offending: the tendering of hard evidence of remorse, evidence emanating in particular from the appellant himself. Instead, there was silence. The appellant remained mute in both his trial and his plea. There was no other evidence of remorse. In its absence, a sentencing court would be wrong not to concentrate upon the gravity of the offending as the primary sentencing factor.

108 Her Honour did accept that the appellant is enterprising, supportive of his elderly mother and his present partner, generous of his time and friendship, and close to his siblings; indeed he is, his offending against his daughters aside, a 'well loved and respected member of the community'.[19] It is appropriate that this Court also accept these findings.

109 The offending ceased in September 1990, some two years before the family split over the 1992 accusations and the 1993 convictions. The ensuing period of 22 years without re-offending is significant as an indication of rehabilitation, and therefore that specific deterrence is of less importance than it would otherwise be - a conclusion to which her Honour came,[20] and with which we respectfully agree.

110 The appellant nevertheless submitted that the judge failed to take this factor sufficiently into account. But that complaint is merely a particular of that which the appellant submits was an excessive non-parole period, and a manifestly excessive head sentence.

111 We do not think that the sentence imposed by her Honour was in any way excessive. The principal factor relied upon by the appellant in support of the contrary proposition was the delays between, first, the offending and sentence and, secondly, between accusation and sentence. In our opinion, her Honour took these delays appropriately into account. She recognised the issue of rehabilitation. Otherwise, the delays did not amount to a mitigating circumstance. There is no suggestion that the prosecution was responsible for any delay following the making of the accusations, and while the appellant had these matters hanging over his head during that period, a plea of guilty would doubtless have shortened it considerably.

112 The quashing of the conviction on count 14 must of course be taken into account. That count added five months' imprisonment to the head sentence. We would reduce that sentence by that period, and reduce the non-parole period by four months. The result would be a total effective sentence of 8 years' imprisonment, with a period of 6 years and 2 months to be served before the appellant becomes eligible for parole.

113 For the reasons given, the conviction on count 14 should be quashed. The appeal should otherwise be dismissed. We would order that, subject to the discretion of the prosecuting authorities and the relevant court, there be a re-trial on the allegations which support the proposition that two assaults were committed during the incident which resulted in count 14.

[2] See P G v The Queen [2010] VSCA 289, [5].

[4] PG v The Queen [2010] VSCA 289, [58].

[8] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).

[13] [1995] VicRp 34; [1995] 1 VR 533, 560 (emphasis added).

[14] Her Honour reminded the jury in her charge that defence counsel had in her final address said that 'in relation to counts 1 and 2 you should simply find that they are not proved because of their implausibility.'

[15] (1982) 7 A Crim R 8 (McInerney, Anderson and Gobbo JJ).

[17] R v Trotter (1982) 7 A Crim R 8, 16-18 (citations omitted).

At a glance

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Judgment (196 paragraphs)

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Cases Cited (3)