CRIMINAL LAW - Uncharged acts - Applicant's sexual interest in complainant - Proof to criminal standard - R v HML [2008] HCA 16; (2008) 235 CLR 334, R v Sadler [2008] VSCA 198; (2008) 20 VR 69 applied - Whether uncharged acts a 'sufficiently important step' in reasoning on counts of procurement.

Offence of procurement of sexual penetration by threats or intimidation - s 57 Crimes Act 1958 - Elements of offence - Threats need not be contemporaneous with act of penetration - Intention to procure - Whether knowledge that threats had procured act of penetration necessary.

Latent ambiguity - Multiple rape counts - Particular of '1st occasion' provided - Whether additional distinguishing feature required to avoid duplicity - DPP v Lewis [1997] 1 VR 391, applied - DWB v R [2008] VSCA 223; (2008) 20 VR 112 distinguished - Complainant's recollection of '1st occasion' - Whether prejudice to applicant by .'1st occasion' particular.

**1 I have had the advantage of reading the draft judgment of Redlich JA. I agree with his Honour, for the reasons he gives, that the convictions on counts 4, 5, 6, 8 and 12 (rape) must be quashed and that a re-trial should be ordered on those counts. I also agree with him that grounds of appeal 2 and 3 relating to the procurement offences are not made out and as to the manner in which the applicant should be re-sentenced.

2 I agree with Redlich JA as to the principles which apply to the particularisation of an alleged offence, by reference to the occasion on which it occurred. These may be summarised as follows:

(a) the law in Victoria continues to be as stated by Tadgell JA in Director of Public Prosecutions v His Honour Judge G D Lewis.[1] A charged act may be particularised by referring to it as the first, last or other chronologically identified act in a series of similar uncharged acts.[2] The fact that a count is particularised in that way does not, of itself, create a latent ambiguity which precludes an offender from being validly convicted of that offence. It may be noted that in R v Baker,[3] the Queensland Court of Appeal did not discuss the judgment of Tadgell JA in Director of Public Prosecutions v His Honour Judge G D Lewis.[4]

(b) In some cases particularisation of a charged act by describing it as the first occasion or other occasion on which that act occurred will not indicate with sufficient clarity the act with which the accused has been charged. An obvious example of such as situation is where there is no relationship between the first occasion of the alleged act and the between dates period during which that first occasion was said to have occurred. This was the situation which occurred in S v The Queen.[5]

(c) R v DWB[6] is authority for the proposition that the first occasion must be actual, rather than notional. If the complainant cannot recall when the charged act occurred in a series of similar acts, or differentiate in any other way between the charged act and other similar acts, the use of first occasion particularisation will be insufficient to overcome the problem of latent ambiguity. In these circumstances some other method of particularisation, such as evidence of the complainant identifying a distinguishing feature of the charged act, will be necessary.

I note that in DWB the conclusion reached by the Queensland Court of Appeal in Baker was described as being 'that it was insufficient to allege offending on a "first occasion" basis, without more'.[7] In my opinion, that states the ratio of Baker too broadly. In Baker, Williams JA referred to the fact that the events in question had occurred many years ago and acknowledged that the identification of an event as occurring on a first occasion did not mean that 'the phrase may never be capable of identifying with sufficient particularity the contact alleged to constitute the offence'.[8] Similarly, Mackenzie J said that**

[t]he utility of describing a charged act as 'the first occasion', when such particularisation is given as a step towards attempting to ensure that the accused's rights have accorded to him, will depend on the particular circumstances of the case.

Further, in R v S[9] Mackenzie J, (McMurdo P and Helman J agreeing) doubted

whether it is possible or helpful to lay down absolute rules as to the sufficiency of particularisation. In the end it may be a matter of judgment and impression whether a case falls on one side of the line or the other, given the wide variety of circumstances which may exist.[10]

(d) As was acknowledged in R v S, a complainant's inability to differentiate the occasion on which the alleged offence occurred, from other similar occasions, will not invariably result in injustice to the accused.[11] For example, in R v NVD[12] counsel for the applicant was unable to identify any unfairness to the applicant, which arose in the circumstances of that case. On that matter I agree in particular with the observations of Redlich JA, in [73]-[75] of his reasons.

3 Following a trial in the County Court at Melbourne the applicant was convicted of five counts of rape (counts 4, 5, 6, 8 & 12), five counts of intentionally cause injury (counts 10, 11, 15, 16 & 17) and two counts of procure sexual penetration by threat or intimidation (counts 13 & 14). The offences were committed over a period of approximately six years, and with the exception of count 14, involved the daughter of the applicant's defacto wife. The applicant was sentenced to 11 years' imprisonment with a non-parole period of seven years. He now seeks leave to appeal against conviction.

**4 The applicant relied upon the following three grounds of appeal:[13]

1. In all the circumstances the verdicts of the jury on counts 4, 5, 6 and 8 (opened as 'first occasion') counts of rape are:

(a) unsafe and unsatisfactory; and or in the alternative

(b) unreasonable or cannot be supported having regard to the evidence.

2. The trial on counts 4, 5, 6, 8, 12, 13, and 14 miscarried by reason of the learned trial judge having erred in her directions to the jury on 'uncharged acts' or 'relationship evidence'.

3. The trial on counts 13 and 14 (alleging the offence of 'procuring sexual penetration') miscarried by reason of the learned trial judge having failed properly or adequately to direct the jury on the elements of the offence the subject of those counts.

5 Ground 2 concerns the adequacy of the trial judge's direction as to uncharged acts. These were the subject of a substantial body of evidence at the trial. Her Honour's charge was made without the benefit of the decision of the High Court R v HML[14] or the decision of this Court in R v Sadler.[15] It was conceded by the respondent that as a consequence of those decisions her Honour's charge was deficient and that the conviction on each of the counts of rape would have to be quashed. The respondent sought to distinguish the conviction on those counts from the procurement counts which, it was submitted, remained unaffected by the error or alternatively could be saved by the application of the proviso.

6 Accordingly, it is not in dispute on the appeal that:**

(a) the conviction of the applicant in respect of counts 4, 5, 6, 8 and 12 (the 'rape counts') must be quashed because of the error in the trial judge's direction as to uncharged acts;

(b) a re-trial should be ordered in respect of count 12 as there exists sufficient particulars and evidence on that count to enable a re-trial; and

(c) the applicant falls to be re-sentenced on the five counts of intentionally cause injury as the convictions on those counts are not in issue on the appeal.[16]

7 The matters that remain in contest on the appeal are as follows:

(a) Should a re-trial be ordered in respect of the remaining four counts of rape (excluding count 12)? The applicant contends that the complainant's evidence did not sufficiently particularise the offence charged and that the prosecution will be unable to do so in the event of a retrial. The Crown submits that it has provided or may be able to provide sufficient particulars on each count and that a retrial should be ordered.

(b) Did the trial judge err as to the elements in respect of the counts of procurement (counts 13 and 14)? (Ground 3)

(c) Did the error of the trial judge in respect to the uncharged acts affect the conviction on the counts of procurement? (Ground 2)

**8 The applicant commenced living at the family home of his defacto partner MC in May 1992. MC's daughter E (the complainant) and two other children were also living at the home.

9 After moving in, the applicant became increasingly violent as a result of two serious accidents. The first, which occurred in the home on November 1992, involved serious burns to 40 per cent of the applicant's body and required the amputation of some fingers. The applicant was said to have become violent and commenced substantial drinking as a result of that incident. Later in December 2000, the applicant was involved in a car accident and required further hospitalisation and the amputation of another finger.

10 After he returned home from this further accident the applicant continued to become increasingly angry and violent towards MC and to her children. This created an atmosphere of fear and intimidation in the household. It was alleged by the prosecution that the charged offences were committed from this time over a six year period, which commenced on 24 April 1997 (a date referable to the an assault committed on the complainant's 13th birthday) and 24 November 2003 which was the date when the applicant moved out of the family home. The applicant was aged between 46 and 54 throughout the offending and the complainant between 13 and 19.

11 The applicant engaged in continuing physical and sexual abuse of the complainant throughout this period. At trial, this conduct was the subject of evidence from the complainant and MC. The majority of this conduct comprised uncharged acts, which formed the background to the Crown case. The living arrangements in the house were described to the jury. These changed as the complainant ultimately became the applicant's sexual partner and the sexual relationship with MC came to an end. Over the years 2002 and 2003 it was said that MC generally slept on a mattress in the lounge room and not in the main bedroom with the applicant. The complainant, at the direction of the applicant, generally slept in the main bedroom with the applicant. At times she slept on the floor and at other times in his bed.

12 It was the complainant's evidence that sexual activity occurred when she was undertaking the VCE in 2002. It occurred frequently, generally in the main bedroom. During 2003 the complainant slept in the main bedroom and sexual activity occurred between her and the applicant on a frequent basis. The complainant's mother slept in the complainant's room. The complainant further testified that digital penetration occurred at least 'weekly'. Occasionally oral sex also occurred in the main bedroom.

13 The complainant's mother gave evidence that she first observed the applicant touch the complainant in a sexual way when the complainant was 14 or 15. MC observed the applicant fondling the complainant in the main bedroom in 2003. The complainant was then about 16 or 17. MC observed the applicant touch and fondle the complainant's breast and vagina. MC said she had to 'get out' of the room. MC also testified that on occasions she heard screaming and yelling. MC testified that she knew that the applicant was physically and sexually abusing the complainant but she took no action due to her fear of the applicant.

14 The applicant denied that any improper conduct had occurred with the complainant. During the trial it was suggested that the complainant and MC had concocted the entire series of events and that the complainant may have been motivated by a desire to prevent the applicant from succeeding in a claim for part ownership of certain household property. This allegation was never put directly to the complainant. No evidence was called by the applicant at trial.

15 The five counts of rape (4, 5, 6, 8 and 12) comprised two counts of oral rape (counts 4 and 5), two counts of penile rape (counts 6 and 8) and one count of digital rape (count 12). All of these incidents took place within the context of the alleged persistent sexual abuse of the complainant. Over the course of the trial attempts were made by the prosecution to distinguish the offences charged from the other uncharged acts, either by describing the offence charged as being the 'first occasion' for that kind of offending or by the identification of some other distinguishing feature of the offence charged. Count 4 concerned the 'first occasion' of 'fellatio'. Count 5 concerned the 'first occasion' of 'cunnilingus'. Count 6 concerned an act of penile penetration. Count 8 concerned a second act of penile penetration.

16 Count 12 concerned an act of digital penetration which occurred between 1 January 2001 and 31 December 2002. It was not particularised as a 'first occasion' offence. The complainant said that this occurred at night and that the two lamps on the bedroom table would have been on. At this time her mother took a photo of her posing with the applicant near a desk with the applicant's finger inserted in her vagina. MC gave evidence that she took the photo. The photo was not presented in evidence. The complainant gave evidence of numerous uncharged acts of digital penetration which occurred on that occasion.

17 The two counts of procuring sexual penetration by threats or intimidation (counts 13 and 14) occurred on a date between 1 January 2001 and 31 December 2002. Count 13 related to the complainant and count 14 to MC. The Crown alleged that the applicant, while in a drunken state, had forced the complainant and her mother to change into silk undergarments and to lie on the bed in the main bedroom. The applicant made the complainant and MC each insert a dildo into their vaginas. He used a Polaroid camera to take photos of the complainant and MC lying on the bed and posing in this way. The complainant said that she could not remember placing the dildo in her vagina, because she said she had blocked the incident out. She was able to recall that the applicant took the photos and that they involved her and her mother, but she could give no further evidence as to the circumstances of the event. MC testified that she and her daughter did as the applicant demanded out of fear. It was the prosecution's case that both MC and the complainant complied with the applicant's demand because of their fear of the applicant and, in particular, his previous history of violence towards them when he was intoxicated.

18 The offences came to light after the photographs were found by a friend HC in November 2003. By that stage MC had moved out of the family home and was residing with HC. HC had attended the former family home to help MC clear out some old belongings. She came across the photos in a jacket pocket and showed them to a friend who then handed them in to the police. The photographs were shown to the jury. They showed the complainant and MC being penetrated by the use of dildos. The applicant, as the operator of the camera, did not appear in the photographs.**

**19 The offences charged were presented within the context of an ongoing relationship of repeated sexual abuse of the complainant by the applicant which continued throughout most of the time covered by each count. The continuing sexual relationship was the subject of evidence by both the complainant and MC. As a result of the decisions of the High Court in R v HML and the decision of this Court in R v Sadler,[17] where a real risk exists that the jury may use such evidence to support a conclusion that the offender has a sexual interest in the complainant, the jury must be directed that they cannot act upon such evidence of uncharged sexual acts unless satisfied beyond reasonable doubt that those acts occurred. Although her Honour instructed the jury that the evidence of uncharged acts was 'led solely to establish the relationship between the [applicant] as part of the context and setting in which the offences charge[d] [were] said to have occurred', she did not direct the jury that they must be satisfied of those facts to the criminal standard. Senior counsel for the Director rightly conceded that there was a considerable risk that the jury used the evidence of uncharged acts to support the conclusion that the applicant had a sexual interest in the complainant and that the necessary direction had therefore been omitted. The parties agreed that this omission required that the conviction on the five counts of rape be quashed. The question whether a verdict of acquittal should be entered or an order for a re-trial be made on counts 4, 5, 6 and 8 depends upon whether the Crown can adequately particularise the act constituting the offence charged. This question is considered under ground 1.

20 It was submitted on behalf of the applicant that the conviction on the counts of procurement must also be set aside as the jury may have more readily accepted that it was the applicant who was responsible for the acts of penetration if they were satisfied that the applicant had a sexual interest in the complainant. Such an interest would have made it more likely that he was the operator of the camera and the procurer of the acts. As the uncharged acts may have influenced the jury's consideration on that issue, the absence of the necessary direction as to uncharged acts was said to be a material omission.

21 Notwithstanding the failure to direct the jury in accordance with Sadler, senior counsel for the respondent submitted that the circumstances were such that the conviction on the counts of procurement ought to stand. This submission rested on two alternative bases. First, it was submitted that Sadler did not require her Honour to direct the jury in accordance with HML where it was unlikely that the jury would use the evidence of uncharged acts in reasoning towards a conclusion of guilt on the counts of procurement. The respondent drew a distinction between the nature and strength of the evidence on the counts of rape and the evidence presented on the procurement counts. To establish the offences of procurement the prosecution had relied on the direct evidence of MC (who was herself a complainant in respect of one of the counts), the limited evidence of the complainant (who admitted that she had no full recollection of the event) and the photographic evidence that depicted the acts of penetration.

22 The primary issue which arose on the counts of procurement was the identity of the person who had procured the co-operation of the complainant and MC. It was the prosecution case that it was the applicant who operated the camera and had procured the acts of penetration by MC and the complainant. The respondent contended that HML and Sadler had no application as there was no real risk that the uncharged acts would be a 'sufficiently important step'[18] in the jury's reasoning towards guilt. The criminal standard of proof would not have applied if the only sexual offences on the presentment had been the counts of procurement. The respondent further contended that the strength of the evidence of MC and the complainant, in combination with the photographs and their location in the applicant's jacket which was found in the bedroom of the family home, made it unlikely that the uncharged acts were 'a sufficiently important step' or 'essential' to the jury's reasoning and that in such circumstances the uncharged acts did not need to be proved to the criminal standard.[19]

23 It would have been highly undesirable for the trial judge to have instructed the jury that different standards of proof applied to the uncharged sexual acts depending on whether they were considering the rape or the procurement counts. Directions should be avoided which suggest that the same fact is to be proved to differing standards depending upon the use which the jury seeks to make of that fact. But I accept the respondent's contention that the uncharged acts were highly unlikely to have been an 'essential' or 'sufficiently important step'[20] in the jury's process of reasoning. Had those counts been the only counts on the presentment, no particular direction as to the standard of proof of the uncharged sexual acts would have been necessary. That conclusion would be sufficient to dispose of this ground. Secondly, the respondent submitted that the proviso to s 568(1) of the Crimes Act 1958 should in any event be invoked if a direction was required that the uncharged acts be proved to the criminal standard. That is, that no substantial miscarriage of justice occurred as a consequence of the absence of that direction. In reply counsel for the applicant made no submission in opposition to that contention.

24 The principal question raised at the trial on these counts was whether it was the applicant who procured the sexual penetration of MC and the complainant. The absence of the direction concerning the uncharged acts is not one which would preclude this Court from assessing the strength of the case against the applicant. The primary direct and circumstantial evidence upon which the prosecution relied is not affected by that omission and cogently demonstrates the applicant's guilt on these counts.[21]

25 There was, in my view, an overwhelming case against the applicant on these counts. The acts of sexual penetration were not in issue. The prosecution case did not depend in this regard upon the credibility of the complainant or MC, as the photographs were conclusive proof that these acts occurred. The acts took place at night in the main bedroom of the family home.[22] Both MC and the complainant testified that the applicant took the photographs. As I have said, the photographs were located in a pocket of the applicant's jacket by a family friend in the bedroom of the family home (whilst assisting MC to move house). The applicant did not challenge the evidence of the finding of the photograph in his jacket in the bedroom. No explanation was advanced as to how it came to be in that location. Moreover, the evidence of MC that the applicant, her de-facto husband, had directed her to place a dildo in her vagina was quite independent of and derived no support from the uncharged acts concerning the complainant. The acts of sexual penetration must be viewed in the context of ongoing family violence as demonstrated in part by the applicant's conviction on five counts of intentionally causing injury (although the precise date of each offence is not known).[23] These offences occurred over a period between 24 April 1998 and 30 November 2003. Each occurred on separate occasions during this period and comprised punching the complainant to the side of the face (count 10), punching the complainant in the jaw (count 11), kicking the complainant as she lay on the floor (count 15), punching the complainant in the nose (count 16) and pulling the complainant's hair (count 17). The conviction on those counts has not been put in issue on the appeal. There is persuasive evidence of the applicant's intimidating conduct and physical abuse of the complainant and MC and the fear which he instilled in them. MC testified that she never wanted to participate. She further said 'I never wanted to have my daughter do something like that, but when you live with someone like that, you are scared and frightened for your life and it's just something you do'. The photographs themselves provide compelling support for the testimony that MC and the complainant were not freely involved. No doubt arises from the evidence that it was the applicant who was responsible for the procurement of the sexual penetration of his de-facto wife and her daughter in the bedroom of the family home as depicted in the photographs.**

Ground 3 -The necessary mens rea of the offence of procurement

**26 I now turn to the argument under ground 3 that the trial judge erred in her direction as to the necessary mens rea of the offence of procuring sexual penetration by threats or intimidation. It was submitted that her Honour had erred by failing to direct the jury that they must be satisfied not only that the applicant intended to procure the act of penetration but that he intended to do so 'knowingly by threat or intimidation'. Such a direction was necessary, it was said, as the prosecution was required to establish a subjective awareness by the accused that the threat or intimidation had caused the procurement of sexual penetration of the complainant.

27 Section 57(1) of the Crimes Act 1958 provides:**

A person must not by threats or intimidation procure a person to take part in an act of sexual penetration.

The offence does not require that the threats or intimidation occur contemporaneously with the act of sexual penetration. It will be sufficient that the act of sexual penetration is procured as a consequence of the threats or intimidation. Neither does the offence require that the intention to procure a person to commit a particular act of sexual penetration exist at the time the threats or intimidation are made. The necessary intent must exist at the time that the person is procured to take part in an act of sexual penetration. The offender must at that time intend that by past or by present threats or intimidation he will procure the person to take part in an act of sexual penetration.

28 Her Honour directed the jury as to the elements of the offence in these terms:

The elements the prosecution must prove beyond reasonable doubt in respect of this crime are: (1) that the accused procured the complainant and [her] mother to take part in an act of sexual penetration. (2) That he did so by threats or intimidation. (3) That the accused intended that the procuring would produce that result. That is the procuring would produce that result, being the act of sexual penetration.

With respect to that first element of procuring, you must be satisfied that there was a real influencing of the person concerned by the use of threats or intimidation - a real influencing. ... With respect to the accused's intention that the procuring would produce the result, the result is the sexual penetration.

**29 The circumstance giving rise to these counts has already been set out. To establish the necessary element of 'threats or intimidation' the prosecution relied upon the evidence of MC that she and the complainant were directed by the applicant to place dildos in their vaginas.

30 MC said that they complied with the applicant's direction because they were frightened of what he would do to them if they refused. It was not the prosecution case that a direct verbal threat of violence immediately preceded his direction. It was the prosecution's case that the intimidation arose in the pattern of continuing violence by the applicant. It relied upon the evidence of MC that the applicant had been drinking that night and that when he was affected by drink he was frequently violent towards MC and the complainant. MC conceded in cross-examination that there were no specific threats made at the time that the applicant directed them to place dildos in their vaginas. MC said that she and her daughter had complied out of fear that 'we'd get hit again'. The complainant said that she had blocked the incident out and that whilst she could recall that the photos had been taken by the applicant she could not recall the circumstances.

31 On appeal it was submitted that as the prosecution relied upon an atmosphere of intimidation rather than upon an immediate threat or act of intimidation, a direction concerning the requisite knowledge or belief of the applicant was essential. Otherwise, it was submitted, an accused might be convicted where although a complainant was acting out of fear, the accused might not be aware she was doing so. This submission was not the subject of any argument at trial. Senior counsel for the Director submitted that it is sufficient that the prosecution establish that threats or intimidation caused the victim to act in the manner in which she did and that it was intended by the accused that the threats or intimidation have that result. There was no additional element of the offence requiring knowledge on the part of the accused that his threats or intimidation had caused the complainant to act in the manner in which she did.

32 The elements of the offence were set out by Curtain J in R v Azad:[24]**

(a) by threats or intimidation;

(b) to procure;

(c) a person to take part in an act of penetration; and

(d) that he did so with the intention that the threats or intimidation would have that result.

The respondent submitted that her Honour's direction at trial was consistent with this statement of the elements. The applicant submitted that as 'knowledge' was not in issue in Azard it was distinguishable from the present circumstances and did not constitute an exhaustive statement of the elements of the offence. That submission cannot be sustained.

**33 The element of intention constitutes the requisite mens rea of the offence. The accused's intent must be contemporaneous with the procurement of the act of penetration. That is to say, the jury must be satisfied that at the time that sexual penetration was procured, the accused intended that his threats or intimidation would bring about that result. Where the requisite intent exists, it is difficult to envisage circumstances where the accused will not know that the act of sexual penetration is the consequence of those threats or intimidation, but such knowledge is not an element of the offence. The threats or intimidation must cause the victim to perform or participate in the act of penetration.[25] While they must have so influenced the victim to perform or participate in the act, proof is not required that the accused knew that it was his conduct which had procured that result.

34 In this case the mens rea of the offence was made out if at the time that the act of sexual penetration was procured, the applicant intended that the prior course of intimidating conduct would have that effect. He must have intended at the time of the procurement that the threats and intimidation bring about the act of sexual penetration. It was not necessary that he contemplate any act of sexual penetration at the time the threats or intimidating conduct occurred.

35 Immediately following the directions of law on the counts of procurement, the trial judge reminded the jury of the parties' respective submissions in relation to those counts. The jury were reminded that it was the prosecution case that although no threats or intimidation occurred at the time that the applicant directed the complainant and her mother to insert dildos into their vaginas, they had done so because of the previous pattern of violent behaviour by the applicant, particularly when he was affected by liquor. Her Honour reminded the jury of the applicant's defence that he was not present when the events depicted in the photos occurred. The jury was also reminded of the evidence elicited from MC in cross-examination that there had been no threat or intimidation by the applicant immediately preceding the request that they insert dildos in their vaginas. The trial judge fully discharged her responsibility of reminding the jury as to the alternate defence arguments.

36 No exception was taken at trial and no submission was made on appeal that the direction as to the applicant's intent was in error or that her Honour had failed to relate the law to the issues of fact. Neither was it suggested at trial or on appeal that the jury may not have understood that it was necessary for the prosecution to establish that the applicant intended at the time that sexual penetration was procured, that the threats or intimidation would bring about that result. This ground fails.**

Ground 1 - Unsafe and Unsatisfactory Grounds - First Occasion Counts (4, 5, 6 and 8)

**37 As I have said, the applicant's conviction on the rape counts must be set aside as a consequence of deficiency in the trial judge's direction as to uncharged acts. The applicant did not submit that a retrial would be inappropriate in respect of count 12. It remains to consider the submission of the applicant under cover of ground 1 that the verdicts on a number of those counts (4, 5, 6 and 8) are unsafe or unsatisfactory as insufficient particulars have been provided in respect of those counts. It was submitted by the applicant that all of these counts were particularised as the first occasion of particular sexual acts. He contended that an acquittal should be entered on those counts as there was insufficient evidence to support these offences as particularised by the prosecution.[26]

38 The issues between the parties in respect of the individual counts were narrowed in the course of oral argument. Counsel for the applicant with his usual candour, conceded that the particulars on count 5 may be sufficient.

39 As to counts 4, 6 and 8, the applicant maintained the submission that the particulars were insufficient as there were no features of the acts relied upon to distinguish them from any of the uncharged acts. Attention was focussed upon the primary contention that it is insufficient for the Crown to particularise the offence as a 'first occasion' unless there is also evidence of some additional distinguishing feature of the circumstances of the act said to constitute the offence. The decision of this court in R v DWB[27] was said to be authority for such a proposition. Further it was said that the Crown was unable to prove that no offence answering the given description of the offence charged occurred earlier than the first occasion.

40 In response, Senior Counsel for the Director submitted that there was sufficient evidence from the complainant to support the counts as particularised. It was contended that in her evidence the complainant gave evidence of the specific occasions upon which each rape occurred and that it was open to a jury to find that the offences were proved. Finally, it was contended that the applicant's submission rested upon a misapprehension of the Court's decision in R v DWB.**

**41 Where the same offences are committed against the same person with great frequency over a lengthy period in the same manner and circumstances, it will be

41 extremely difficult for the victim to identify some distinguishing feature of one occasion when the offence was committed.[28] Hence in the present case the difficulty which the prosecution faced in providing particulars arose from the sheer volume and persistence of the alleged charged and uncharged acts committed for the most part in the main bedroom of the family home at night. The profound effect upon the victim of these events may have made it more difficult for her to recall the details of particular acts of sexual abuse.[29] The submission made by the applicant under this ground raises for consideration the level of particularity that is required in such circumstances.

42 The starting point is the proposition that for a trial according to law, the accused must be apprised not only of the offence with which they are charged but must have particulars of the act constituting the offence.[30] These particulars are designed to serve a number of important purposes:**

(1) to enable the accused to exercise the right to object to evidence on the ground of relevance;[31]

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

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

(4) to enable the trial judge to instruct the jury properly as to the law to be applied;[32]

(5) to ensure that there is a unanimity of view by the jury as to a specific act by the accused;[33]

(6) in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;[34]

(7) to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.[35]

**43 The first four purposes of particulars reflect the requirement that the accused must be afforded a fair trial. In the joint reasons of Gaudron and McHugh JJ in S v R[36] they state that the rule against duplicitous counts rests upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. If the evidence reveals several possible occasions of offending, and the charge could relate to any one of these, the accused will be forced to defend himself in relation to each and every occasion that arises on the evidence which may fit the description of the act charged.[37] The rule against latent duplicity, informed by considerations of fairness, is therefore enforced to ensure that the accused knows the 'particular act, matter or thing alleged as the foundation of the charge'.[38] In S v R Dawson J observed that because of the latent ambiguity, the accused was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi, the whole of the evidence being 'in effect, evidence of propensity' which could not be related to 'a specific offence upon an identified occasion.[39] Gaudron and McHugh JJ considered the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance. Justice Brennan dissented as he did not consider that the accused was prejudiced in countering the allegations as he could have no more successfully impugned the complainant's imprecise evidence had it been confined to a single act than if it could apply to several acts as there was nothing distinctive about the evidence of any act by which to differentiate it from any other occurring within the periods specified in the indictment apart from the order of its occurrence.[40]

44 The final four purposes[41] inform the obligation to avoid duplicity. The distinction in the purposes which particulars serve has sometimes assumed importance in the cases concerned with resolving questions of latent ambiguity.

45 In the present case, evidence of the uncharged offences alleged by the complainant fell within the description of the offence described under each relevant count. There was, therefore, as Dixon J stated in Johnson v Miller, a 'latent ambiguity' which had to be redressed if the applicant was to have a trial according to law.[42] Where the evidence called establishes more than one instance of such offending, the latent uncertainty depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown.[43] The ambiguity might be removed by making an amendment or by giving particulars selecting one instance so as to make the count incapable of equal application to the other alleged acts.[44] Importantly Dixon J stated in Miller that there are more than one means by which the act, the subject of the charge, may be identified and distinguished from other acts, equally capable of supporting the complaint.[45]

46 In DPP v His Honour Judge G D Lewis[46] Tadgell JA (with whom Ormiston and Charles JJA agreed) drew heavily upon the reasoning in Johnson v Miller and S v R. There the accused was charged with eight counts of indecent assault, one of attempted gross indecency and one of carnal knowledge in relation to his daughter while she was between the ages of seven and thirteen. The offences were alleged to have occurred between 20 and 25 years earlier. The prosecution particularised certain counts as the first occasion of an alleged series of offences within a certain period and indicated that it would also adduce evidence of a pattern of sexual abuse. Tadgell JA referred to the observation of Dixon J in Johnson v Miller that a complaint that was latently duplicitous might be sufficiently tied 'down to one instance' by 'reference to the numerical place the act charged occupied in the series of occasions of which there was evidence'[47] as support for the 'first occasion' particularisation of counts in order to avoid latent duplicity.[48] Passages from a number of the judgments in S v R also support such an approach. Tadgell J said:**

that no decision was cited to us, and I have found none, in which the 'first occasion' technique has been found wanting...The observations by Dixon J. in Johnson v Miller quoted above...appear, however, to be much in point. In specifying the 'first occasion' the Crown has selected 'one instance ... to the exclusion of the others'; and in so doing has chosen 'to elect among the instances or transactions [it] proposes to prove and to state definitely to the court which of them is to be treated as the subject of the complaint'. In selecting the first instance to the exclusion of the others, and electing to prove beyond reasonable doubt that it occurred, the Crown is in my opinion providing the measure of particularisation that Johnson v Miller requires, and doing so in a manner which Dixon J contemplated. This was not done in S. v R.[49]

It was submitted for the accused before us that an attempt to identify the conduct the subject of any count by reference to the 'first occasion' when it occurred provides no more than an illusory particularisation dependent on a linguistic device. It was objected that the particulars do not indicate when, within the period specified for any count, the conduct is alleged first to have occurred; and that the occasion nominated by the complainant as the first could be as early as the first date in the period or as late as the last. It is true that the particulars amount to an allegation that the 'first occasion' might have been at any time within the specified period. That, however, does not make the count bad or preclude a valid conviction upon it: R. v Hartley [1972] 2 QB 1 at 7; Clarke v La Franchi (unreported, Appeal Division, 10 June 1994), at 22; R v Robinson [1996] VicRp 27; [1996] 1 V.R. 402 at 407.

**47 The reasoning of Dixon J in Johnson v Miller was regarded by Tadgell JA as supporting the view that it may be appropriate to identify a transaction by reference to the order of its occurrence in a series, whether or not any other transaction in the series is the subject of a charge. Tadgell JA concluded that the prosecution, by tying itself to the 'first occasion' of an offence charged by the presentment and described in the particulars, undertakes to prove that the offence charged occurred during the period specified, and to prove also that no offence answering the given description occurred earlier, whether within the specified period or outside it.[50]

48 The South Australian Full Court in R v Liddy[51] and the Court of Criminal Appeal in R v Clifford[52] considered that the need for specificity may be satisfied by a 'first occasion' particular. Similarly the Queensland Court of Appeal in R v Rogers[53] and again in R v S[54] approved 'first occasion' particulars with the qualification that the adequacy of particulars will be a matter of judgment and impression in the context of the particular circumstances. That court again considered this question in R v Baker[55] Williams JA and Mackenzie J in separate reasons re-iterated that whether the requirement that an act charged be sufficiently particularised can be satisfied by defining a count as 'the first occasion' when a series of essentially identical acts have occurred will depend on the circumstances. MacKenzie J stated that**

in the absence of any objective fact or event to which the charged event can be related, reliance only on that identifying feature in a case where the offence was one of a number which allegedly occurred in the distant past and the period in which it was alleged to have occurred is lengthy, will ordinarily mean that there is insufficient compliance with what is required for the purposes of proper administration of justice.[56]

**49 This observation is not inconsistent with the proposition that describing a count as pertaining to the 'first occasion', may be an effective method of election which will remove latent duplicity. So understood, Baker conforms with the view expressed in Lewis that where the Crown particularises a count as the first occasion the Crown will have identified and separated one occasion from the others on the evidence, so as to avoid duplicity.[57] Mackenzie J recognised that will be circumstances in which, despite such particularisation, the accused will not be able to fairly answer the charge in the absence of some further distinguishing feature.

50 Lewis was applied in R v NVD.[58] In that case, Neave JA with whom Vincent JA and Cavanough AJA agreed found that on count 1 (a count particularised as a 'first occasion' count) there was insufficient evidence to establish a distinct occasion fitting the description of the offence charged so as to separate it from uncharged acts. On count 2 which was also a 'first occasion' count, having found that there was sufficient evidence to establish the offence, Neave JA said:**

If, as this court held in DPP v Lewis, it is permissible for the Crown to rely on the first occasion when the alleged offence occurred, that fact alone cannot create ambiguity or duplicity which produces a miscarriage of justice.

**51 Neave JA also noted the applicant's reliance on the opinion that had been expressed by MacKenzie J in R v S[59] that particularising an act as the first or last of a series of events may not provide a sufficient indication to the accused person of the case he must answer. Neave JA did not consider that observation assisted the applicant as Mackenzie J had further stated that the sufficiency of the particulars must be determined having regard to the merit of the individual case.[60] Neave JA concluded that as no unfairness arose there was no absence of necessary particularity.[61]

52 It appears that in NVD the complainant did not give evidence that she recalled the first occasion as distinct from the uncharged acts. NVD may be viewed as authority for the proposition that even where there is insufficient evidence of the first occasion of a sexual offence to distinguish it from a more general course of conduct, the election by the Crown to particularise the offence as the 'first occasion' will not necessarily render the charge duplicitous. Rather the inquiry must be whether sufficient detail has been given to the accused to enable him or her to prepare their defence.

53 In DWB v R[62] the appellant was convicted of 19 counts of sexual assault against his two daughters, between 1971 and 1984. Each count was framed on a 'between dates' basis. The prosecution adduced evidence not only of the particular offence the subject of each count, but also of the general pattern of sexual abuse constituted by uncharged acts. Numerous counts were particularised simply as the 'first occasion' of the specific conduct which gave rise to the offence charged in each count. As the depositions had disclosed, neither complainant had any recollection of any specific occasion on which the offence charged within these 'first occasion' counts took place. Neither could differentiate between the 'first occasion' and any other occasion. It was that fact, coupled with the use of 'first occasion' particulars, that prompted the applicant to apply to the trial judge for a permanent stay of these counts.[63] The Crown had submitted that if the jury were satisfied that the applicant had engaged in systematic abuse over a long period, as each complainant claimed, there must logically have been a 'first occasion' on which that occurred. The fact that neither complainant could identify that 'first occasion' was of no consequence. DPP v Lewis stood as authority for the proposition that this method of providing particulars was acceptable.[64]

54 The applicant challenged the Crown's reliance upon a notional, rather than actual, 'first occasion' and submitted that there would be no evidence capable of supporting a conviction in relation to any of the 'first occasion' counts. That was because the jury could not be satisfied, on the complainant's evidence, that the applicant had committed the specific act that was designated by the Crown as the offence charged. Counsel further submitted that the Crown was seeking to have the accused convicted on the basis of propensity reasoning and nothing more.[65]

55 The trial judge had accepted the Crown's submission that although neither complainant had any memory of a 'first occasion', as a matter of logic, there must have been a first occasion and that as long as the jury were satisfied on the evidence that this 'first occasion' took place within the general parameters of each count, as particularised, it would be open to them to convict. His Honour therefore refused to grant the stay.

56 As the joint judgment of Vincent, Weinberg JJA and Mandie AJA states, where the Crown alleges a course of conduct 'between dates', it will always be a question of degree as to whether the evidence led possesses sufficient particularity to enable the subject of the actual count to be identified. Their Honours referred to the use of the 'first occasion' mode of particularisation in these terms:**

[it]will not overcome the difficulties identified in S v R unless there is some way that the specific act that constitutes the offence charged in any particular count can be identified and distinguished from all other similar conduct.[66]

**57 The submissions made before us in the present case indicate that these observations have been misunderstood. They have been taken to mean that some distinguishing feature is required additional to evidence that establishes that the act constituting the offence charged was the 'first occasion' on which such conduct occurred. DWB stipulates that there be evidence which enables that first occasion to be distinguished from all others.[67] The court rejected the Crown submission that there must, logically, have been a 'first occasion'. Evidence was required that supported the count as formulated and particularised.[68] The complainants in DWB were unable to give any evidence 'of what the "first occasion" on which they were indecently assaulted might have been'. Neither complainant had the vaguest recollection of any feature of the offence that would allow them to say that a particular occasion was the first time it had occurred or that no other offence of a like character had taken place beforehand.[69]

58 The applicant's submission that the nomination of the first occasion must always be accompanied by further detail which objectively distinguishes that act from other occasions is inconsistent with the statement of the principle by Dixon J in Johnson v Miller and in its further exposition in S v R, DPP v Lewis and NVD. The applicant's contention accords no weight to the fact that the 'first occasion' method of particularisation is usually relied upon by the Crown only when it cannot otherwise identify any other distinguishing feature to differentiate that act charged from the uncharged acts which occurred in the period covered by a 'between dates' count. If evidence of distinguishing features were available, the counts could be particularised by reference to those distinguishing features. The Crown would have no need to rely upon a 'first occasion' particular to avoid latent ambiguity.[70]

59 The subsequent decision of this court in R v Osborne[71] illustrates the Crown's obligation in such cases to adduce evidence that established that the act said to be the offence charged was the first occasion. Neither complainant gave evidence that differentiated the first occasion on which she was assaulted from any of the many other occasions that they described within the relevant time frame. Nor was there any circumstantial evidence that would have allowed that first occasion to be identified.[72] Weinberg JA reaffirmed the Court's decision in DWB that '[t]here are limitations upon the use that can be made of "first occasion" counts.'[73]

60 In Osborne, as in DWB, there was no evidential basis on which the alleged first occasion could be identified as such. There was only a notional first occasion. In those cases the jury's attention was not directed to a particular occasion which arose on the evidence. The evidence failed to provide the accused with a means of identifying the act the subject of the charge in relation to which he would need to defend himself. It did not establish a separate, identifiable transaction that could be related to a count in the indictment.[74]

61 It is now settled in this State, that in order to avoid latent ambiguity in the charge, it may be sufficient for the Crown to nominate the 'first occasion' within a specified period of time, if no greater degree of particularity is possible. When the Crown does tie itself to a 'first occasion' method of particulars, it undertakes to prove by evidence that a specific act answering the description of the offence charged was the first occasion of such conduct, that it occurred within the period specified in the count, and that no act answering the description of the offence charged occurred earlier, whether within the specified period or outside it. If the existence of the 'first occasion' within the dates specified is notional rather than evidence based, then the Crown will have failed to distinguish between the act it set out to prove and the uncharged acts of the same nature and latent duplicity will not have been avoided. But as NVD illustrates, that will not necessarily require that the conviction be quashed.

62 Where latent ambiguity is identified and a question arises as to the adequacy of the particulars, whether it be a first occasion mode of particularisation or otherwise, the trial court must also consider whether that level of particularity will cause some real prejudice to the accused.'[75] On appeal this must be considered 'with the benefit of hindsight as to what the appellant's case was at trial'.[76] Kirby J said in Walsh v Tattersall[77] that it is only where the exposure of a latent defect suggests a risk that the accused may not have had a fair trial that the court need intervene.[78] In Rogers Davies JA citing passages from Johnson v Miller[79] and S v R[80] considered the answer would depend upon 'whether, because of absence of particularity of those counts, some injustice has been done to the appellant whereby he has been prejudiced.' If the ambiguity in a count is not such to actually disable the defendant from meeting the charge then there will be no unfairness or prejudice to the accused.[81]

63 Where the prosecution takes place many years after the charged events are alleged to have occurred[82] the court is required to give a direction in accordance with s 61(1A) of the Crimes Act 1958. That may go some way towards ensuring that 'a balance is kept so far as fairness is concerned'.[83] The giving of such a warning, may bear upon whether the accused has been afforded procedural fairness in terms of the particulars provided.[84]

64 A number of cases demonstrate the significance of prejudice where the suggestion of inadequate particulars is made. In Rogers it could not be contended that more specific particularity as to dates would have enabled the appellant to mount a more cogent defence, Davies JA concluded that no possible prejudice arose. Similarly, in R v S, Mackenzie J considered no injustice had been done to the appellant because of the absence of particularisation as it was no more than a theoretical possibility that had a date been particularised, the appellant would have been able to give evidence of alibi or evidence differing from a denial of all improper conduct.[85] Johnson J in Fazio v Castledine[86] regarded the decisions in Johnson v Miller and S v R as consistent with proposition that it is only where the failure to remedy the ambiguity causes prejudice or unfairness to the accused that the power to dismiss the charge should be exercised.[87] Finally, in R v Cordell[88] Dodds-Streeton JA with whom other members of the court agreed, found that the evils considered in S v R and R v DWB did not arise so the applicant (whose defence was that none of the assaults alleged during that week occurred) was not prevented from knowing the case he had to meet or denied an opportunity to call alibi evidence or to test the complainant's credit by reference to contemporaneous events.[89]

65 The applicant's contention that a 'first occasion' particular will be insufficient in the absence of some additional distinguishing feature cannot be sustained. Such a notion is not supported by authority and would be wrong in principle. The particular of the offence as being the 'first occasion' will generally be sufficient if the complainant is able to recall the first occasion and give evidence to that effect. Unless it can be demonstrated that the absence of a further distinguishing feature of the occasion will prejudice the accused, such a particular will suffice.

66 Returning then to the circumstances of this case, the Crown submitted that, in the absence of any evidence that the applicant suffered any other prejudice or unfairness by reason of the absence of more specific particularity, the particulars of counts 4, 5, 6 and 8 were sufficient to put the accused on notice, in relation to each count, as to what was alleged against him on the occasion when he is said to have committed the offence. It is convenient to set out the salient features of the complainant's evidence on each of these counts and refer briefly to the submission made by the applicant concerning that evidence.**

**67 The prosecution particularised count 4 as the first occasion of oral rape by fellatio. The complainant testified that there were occasions where she engaged in oral sex with the applicant when he placed his penis in her mouth. She said it occurred in the main bedroom. She also said she remembered the first occasion when she gave him oral sex when she was about 16 or 17. She described in some detail the sexual activity which preceded oral sex and which included digital penetration, toucher her breasts and her touching his penis.

68 The applicant relied upon the complainant's evidence that she could not remember whether she had fellated the applicant on any of the occasions on which she had earlier given evidence of other sexual activity and could not remember any occasion where oral sex was the only sexual activity which occurred between her and the applicant.**

**69 This count was particularised by the prosecution as the first occasion of oral rape by cunnilingus. The complainant said it first occurred when she was 16 or 17. She testified that the applicant put his head under the blankets and then proceeded to place his tongue in her vagina. In cross-examination she said that she was certain the first occasion occurred when she was still at High School.

70 The applicant drew attention to the fact that the complainant was not asked and gave no evidence of where the act occurred although she said in cross-examination that such activity occurred mostly in the main bedroom. Further, it was submitted that the complainant failed to give evidence distinguishing that alleged first occasion from 'any other like occasion'.**

71 Count 6 was probably represented as the first occasion (later described by the prosecution as an occasion) of penile penetration of the complainant's vagina simpliciter. The complainant said that on the first occasion it occurred, she would have been about 17. She said it occurred in the main bedroom on the bed and that the applicant touched her breasts, digitally penetrated her, rubbed his penis against her vagina and then inserted it 'a little bit'. The complainant said she clamped her legs together and was told by the applicant to unclamp them. In cross-examination she said that the first occasion was 'a bit of a blur but that she remembered 'the pain and my resistance of the whole act'. The applicant drew attention to the cross-examination during which the complainant had said that it was 'one of the first occasions' and that she was 'not sure if that was the first occasion'. She said that her specific memories might not have been of the very first occasion but that was what she associated with it. She remembered her feelings on that occasion and remembered the bedroom and the lamps.

72 Count 8 was particularised as the first occasion (later described by the complainant as an occasion) of penile vaginal rape and ejaculation. The complainant's evidence was that she could not remember whether he ejaculated on the first occasion of penile penetration. She remembered a specific occasion in the main bedroom when the applicant tried to placed his penis in her vagina. She sought to resist this by clamping her legs together. The applicant told her that if she that if she kept making it difficult for him he would ejaculate inside her. He then ejaculated and the complainant got a hand towel from the bedroom drawer and wiped it up. The applicant drew attention to the fact that the complainant did not state that she had been penetrated on that occasion or that it was the first occasion.

**73 It is commonly the case that offences of the present kind are charged by reference to the occasion (first or otherwise) on which they are committed. Commonly the alleged circumstances of the offence may be set against a background of repeated conduct with the same victim in the same circumstances over a protracted period of time. Experience has shown that commonly in such cases no distinguishing feature (additional to the occasion) of the offence charged can be provided. If it is not disputed on trial that the accused and the complainant were, throughout the period specified in the count, in each other's company at the place where it is alleged that the offences occurred, it may be no more than a theoretical possibility that more specific particularity of the occasion charged would advance the ability of the accused to answer the charge. In the absence of demonstrated prejudice, to require some further distinguishing feature, would reduce the law to absurdity and would bring the administration of justice into disrepute.

74 In the present case, the applicant did not deny having lived in the house with the complainant for the period covered by the counts. His defence was an outright denial that any improper conduct occurred. There existed, therefore, no more than a theoretical possibility that, if more specific particularity as to the dates was provided, the applicant would better placed to answer the case being advanced against him. No unfairness or prejudice was demonstrated.

75 At trial, the complainant's evidence identified four different rapes of the different types alleged in the particulars. Her account of each occasion was accompanied by detail of what occurred and by some level of recall that those occasions were the first occasions. That recall differed from count to count so that on some counts, what was said to be the first occasion that such an act occurred, was not free from uncertainty.[90] Consequently her evidence does raise the prospect that on some counts there may be difficulty in the prosecution relying upon a 'first occasion' mode of particularisation. But this is not a case in which the complainant has no recollection of the 'first occasion' acts or that it is obvious that there is no other means available to overcome those difficulties.[91] Neither is it a case in which the prosecution is unable to establish that the offences occurred within the periods specified in the counts. I would therefore order a new trial on each of those counts.**

**76 The applicant had been sentenced to five years' imprisonment on counts 4, 5, 6, 8 and 12 (rape), six months' imprisonment on counts 10, 11, 16 and 17 (intentionally cause injury), three years' imprisonment on counts 13 and 14 (procure for sexual penetration by threat or intimidation) and 12 months' imprisonment on count 15 (intentionally cause injury). It was directed that one year of the sentenced imposed on each of the counts 4, 5, 6, and 12, nine months of the sentences imposed on each of the counts 13 and 14, one month of the sentences imposed on each of counts 10, 11, 16 and 17 and two months of the sentenced imposed on count 15 to be served cumulatively upon each other and upon the sentence imposed on count 8.

77 As the convictions recorded against the applicant on each of the rape counts, 4, 5, 6, 8 and 12 are to be quashed, it is necessary to re-sentence the applicant on the two counts of procurement and counts 10, 11, 15, 16 and 17 of intentionally cause injury which were not the subject of appeal.

78 The circumstances of the five counts of intentionally causing injury are not contested on this appeal and are conveniently set out in the reasons for sentence of the learned trial judge as follows:**

[13] Counts 10, 11, 15, 16 and 17 are counts of intentionally cause injury. With respect to Count 10, between 24 April 1998 and 31 December 2002. E was in the lounge room at home when you hit her to the left-hand side of her jaw, with your knuckles, causing her pain.

[14] In her evidence, [the complainant] said the incident happened when she was at High School, she did not know how it came about but thought it was most likely because there had been an argument. Her evidence was that as a result of you hitting her on the side of her head, she suffered a headache and bruise. She also gave [evidence] that you hurt your hand and the knuckles on the top of your hand were swollen. You said to her, 'Look, I might have to go to the doctor now if the swelling doesn't go down'.

[15] Count 11 concerns an incident between 24 April 2000 and 24 April 2002, when you were at home and had an argument with E. E's evidence was that she was around 15 and 16 and you struck her to the jaw and her jaw was very uncomfortable, and clicks to this day.

[16] Count 15 concerns an incident between 1 January 2002 and 31 December 2002 when E was in Year 12 at school. She went with

you, her mother and her two siblings to the video store in Belgrave. She did not go into the store but waited in the car with two other children. Her evidence was that when you get home, there was a big issue about this. You screamed at her, pushed and shoved her and somehow she ended up on the floor and proceeded to get kicked by you. She was kicked everywhere and as she was lying on the floor, she put her hands up to protect her face. She suffered bruises over her body.

[17] Count 16 relates to an incident between 24 April, 1999 and 24 April 2001. [The complainant] gave evidence that when she was 15 or 16 at High School, she was hit by you on the nose. She suffered swelling, a small bruise down the side of her nose and she found it hard to breathe.

[18] Count 17 occurred between 1 October and 30 November 2003, when she was sitting on the couch reading something. She had her head slouched down and you asked her to look at your eyes when she was talking to you. Her hair was partially in her face and you grabbed the top of her hair, pulled it and she said that it 'really, really hurt, absolutely killed'.

79 I would re-sentence the applicant as follows. I would confirm the sentences of six months' imprisonment fixed on each of counts 10, 11, 16 and 17. On count 15 I would fix a sentence of 18 months' imprisonment. On each of counts 13 and 14 I would fix a sentence of three years and six months' imprisonment. I would order that two months of the sentences on each of counts 10, 11, 16 and 17, eight months of the sentence on count 15, and two years of the sentence on count 14 be served cumulatively on each other and on the sentence imposed on count 13, making a total effective sentence of six years and 10 months. I would fix a period of four years and three months before the applicant is eligible for parole.

80 I have been provided with the judgment of Redlich JA in draft and I respectfully agree that the convictions on counts 4, 5, 6, 8 and 12 should be quashed and that a re-trial ordered on those counts. I agree for the reasons he gives that there was no error in the manner in which the trial judge dealt with the elements of the counts of procurement. I also agree that as to the remaining counts which will not be the subject of a re-trial, the applicant should be re-sentenced as his Honour proposes.

[1] [1997] 1 VR 391.

[3] [2001] QCA 59; [2002] 1 Qd R 274 ('Baker').

[4] The decision was referred to only to specify the question which arose in R v Baker. See [2001] QCA 59; [2002] 1 Qd R 274, 276.

[5] [1989] HCA 66; (1989) 168 CLR 266.

[6] [2008] VSCA 223; (2008) 20 VR 112 ('DWB').

[8] [2001] QCA 59; [2002] 1 Qd R 274, 275.

[9] (2000) 1 Qd R 445.

[11] See, for example, R v NVD [2007] VSCA 230; R v S [2000] 1 Qd R 445, 457 (Mackenzie J).

[12] [2007] VSCA 230; (2007) 177 A Crim R 108.

[13] Counts 4 and 5 were not pressed by the applicant in argument.

[14] [2008] HCA 16; (2008) 235 CLR 334.

[15] [2008] VSCA 198; (2008) 20 VR 69.

[16] No appeal was brought in relation to the conviction on counts 15 and 17 and the ground which alleged error on the remaining counts of intentionally causing serious injury, counts 10, 11 and 16 were not pursued on the appeal.

[18] R v Sadler [2008] VSCA 198; (2008) 20 VR 69, [65], [69].

[21] R v KDY [2008] VSCA 104; (2008) 185 A Crim R 270, [38], [40]; R v SLJ (No 2) [2010] VSCA 32, [24].

[22] It does not appear to be disputed by the applicant that he slept in the main bedroom.

[23] These offences like the procurement offences were 'between dates' offences. Some may have occurred after the procurement offences.

[24] [2007] VSC 115.

[25] R v Pikos [1967] VicRp 11; [1967] VR 89, 90 (Smith J).

[26] There was a dispute on appeal as to whether on count 6 and 8, the prosecution was relying upon the 'first occasion'.

[27] [2008] VSCA 223; (2008) 20 VR 112, [14]

[28] See DPP v Lewis [1997] 1 VR 391 (Tadgell JA).

[29] It was said by the prosecutor during his closing address that 'this is a girl who has had, in our submission, so many horrible, sick and disgusting things done to her over a period of years that it has blurred into a period of her life'.

[30] Byrne v Garrisson [1965] VicRp 70; [1965] VR 523, 539 (Gowans J).

[31] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 497-8 ( Evatt J ); S v R [1989] HCA 66; (1989) 168 CLR 266, 284 (Gaudron and McHugh JJ).

[32] S v R [1989] HCA 66; (1989) 168 CLR 266, 284 (Gaudron and McHugh JJ).

[33] Ibid 283 (Toohey J); 288 (Gaudron and McHugh JJ).

[36] [1989] HCA 66; (1989) 168 CLR 266.

[37] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 495 (Evatt J) ; S v R [1989] HCA 66; (1989) 168 CLR 266, 286 (Gaudron J and McHugh JJ).

[38] [1937] HCA 77; (1937) 59 CLR 467, 489-90.

[41] The fourth factor serves both purposes.

[42] [1937] HCA 77; (1937) 59 CLR 467.

[43] R v VN [2006] VSCA 111; (2006) 15 VR 113, [61].

[44] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 486 (Dixon J).

[46] [1997] 1 VR 391.

[47] [1937] HCA 77; (1937) 59 CLR 467, 486.

[48] [1997] 1 VR 391, 398-99.

[50] Ibid 399-400; see also R v Best [1998] 4 VR 603, 617-618.

[51] [2002] SASC 19; (2002) 81 SASR 22.

[53] [1998] QCA 83.

[54] (2000) 1 Qd R 445.

[55] [2001] QCA 59; [2002] 1 Qd R 274.

[57] DPP v Lewis [1997] 1 VR 391, 399-400.

[58] [2007] VSCA 230; (2007) 177 A Crim R 108.

[59] (2000) 1 Qd R 445.

[61] R v NVD [2007] VSCA 230; (2007) 177 A Crim R 108, [38].

[62] [2008] VSCA 223; (2008) 20 VR 112.

[70] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 490 (Dixon J).

[71] [2009] VSCA 88.

[74] See R v R [1998] QCA 83 (Dowsett J).

[75] R v R [1998] QCA 83 (Davies JA) (citing Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 480, 486, 502; S v R [1989] HCA 66; (1989) 168 CLR 266, 275, 277, 286-7).

[76] R v S (2000) 1 Qd R 445, 456 (MacKenzie J).

[77] (1996) 188 CLR 77.

[79] [1937] HCA 77; (1937) 59 CLR 467, 480, 486, 502.

[80] [1989] HCA 66; (1989) 168 CLR 266, 275, 277, 286-7.

[81] S v R [1989] HCA 66; (1989) 168 CLR 266, 284-5 (Gaudron and McHugh JJ).

[82] Bellemore v Tasmania [2006] TASSC 111; (2006) 16 Tas R 364, 374 (Crawford J).

[84] R v NVD [2007] VSCA 230; (2007) 177 A Crim R 108, 114 (Neave JA).

[85] R v S (2000) 1 Qd R 445, 456-7.

[86] [2007] WASC 25; (2007) 168 A Crim R 391.

[88] [2009] VSCA 128.

[90] As more than one type of sexual act was said by the complainant to have occurred on some of these 'first occasions,' it was also necessary for the prosecution to identify where it was the same occasion that was the 'first occasion' for offences charged in different counts.

[91] S v R [1989] HCA 66; (1989) 168 CLR 266, 288 (Gaudron and McHugh JJ); R v Morrow [2009] VSCA 291, [86].