CRIMINAL LAW - Appeal - Conviction - Indecent assault - Evidence incapable of establishing assault - Convictions quashed - Verdicts of acquittal on indecent assault counts - Whether Court should order retrial on same allegations - Whether double jeopardy - AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505, Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 applied - Retrial ordered.

EVIDENCE - Collateral evidence rule - Cross-examination of complainant as to credit - Whether defence should have been permitted to lead evidence going only to credit - Complainant's credit not a fact in issue - Evidence should have been excluded - Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 applied.

1 After a trial in the County Court, the appellant[1] was convicted of 10 counts of sexual offending. There were two complainants, to whom we shall refer as L and S respectively. They are sisters. Counts 1-8 related to L; counts 9 and 10 related to S.

Sexual penetration of a child aged between 10 and 16

Sexual penetration of a child aged between 10 and 16

3 The appellant sought leave to appeal against both conviction and sentence. At the conclusion of the hearing, the Court announced that the appeal would be allowed, and the convictions quashed. The appellant was granted bail following the quashing of the convictions.

4 We reserved our decision on whether a retrial would be ordered. The reasons which follow explain why the appeal succeeded and why we have decided that there should be a retrial.

The learned judge erred:

(a) in repeating without criticism or qualification the prosecutor's suggestion in cross-examination and his final address that the [appellant] failed immediately to report to the police the false imprisonment in August 1998 'because of the fear that the police would investigate the sex allegations';

(b) alternatively, in failing to give an Edwards direction on this issue.

6 This was the ground on which the appeal succeeded. In order to explain why, it will be necessary to set out at some length the chronology of events in the trial. As will appear, the trial of the appellant was diverted, at the insistence of the defence, into an investigation of what is referred to in the ground as 'the false imprisonment in August 1998'. It was this diversion which led ultimately to the trial miscarrying.

7 As we explain later in these reasons, the diversion should not have been permitted to occur. That it did occur, with unfortunate consequences, should serve as a salutary reminder of the rationale behind the collateral evidence rule and of its importance in the management of trials.

8 In August 1998, long after the alleged offending took place, the first complainant (L) and two accomplices falsely imprisoned the appellant and his wife and assaulted the appellant ('the 1998 incident'). During the incident, L confronted the appellant about his alleged sexual abuse of her years earlier. According to L, the appellant at first denied the allegations but eventually made admissions. As will appear, the appellant and his wife denied that any admissions had been made.

9 The appellant made no complaint to police about the incident until he was interviewed by the police, in May 1999, following L's December 1998 report of the alleged sexual abuse. At that stage he provided the police with a statutory declaration about the 1998 incident, which he had prepared in December 1998. Subsequently, in 2002, L and one of her accomplices (M) were dealt with in the County Court for the false imprisonment and the assault.

10 At the commencement of the trial, defence counsel told the judge about the 1998 incident. This occurred as counsel was developing his submission in support of an application for an order under s 32C of the Evidence Act 1958 (Vic) ('Evidence Act') and the difficulty of the judgments which those provisions require judges to make. Counsel was seeking production of documents in the possession of sexual assault counsellors, recording interviews they had conducted with complainant L ('the counselling notes'). (We note in passing that pre-trial argument on this application alone extended over some six sitting days. This would appear to reflect the complexity of the provisions of Division 2A of Part II of the Evidence Act. We also note that, in ruling that the counselling notes should be produced to the defence, and could be used in the trial, his Honour held that the 'fact in issue' to which the evidence was relevant was the credit of complainant L.[4])

11 In response to the judge's enquiry, the prosecutor said that he proposed to lead no evidence about the 1998 incident. (As later emerged, the prosecutor had decided - correctly, in our view - that evidence of the admissions which L claimed the appellant had made would be inadmissible because they had been extracted by means of violence and coercion.) Defence counsel explained his reference to the 1998 incident as providing 'context' for the counselling notes. He said nothing at this stage to suggest that he would seek to call evidence about the 1998 incident, but it seems clear from what counsel said subsequently[5] that this was at all times his intention. Had defence counsel alerted the judge at this early stage that he proposed to take that course, the judge would have been able to give timely consideration to the question whether he should be permitted to do so, and the unfortunate events which unfolded might have been avoided.

12 The 1998 incident was raised for the first time in evidence during defence counsel's cross-examination of L. Consistently with what the prosecutor had said in pre-trial argument, he had not asked L about the incident in her evidence-in-chief. Defence counsel put to L that she and others had falsely imprisoned the appellant and that she claimed he had made admissions to her. L confirmed that this was so. The following passage from the transcript is illustrative:

COUNSEL: You say, do you, that in the presence of his wife, he admitted some of the allegations that you were making?

WITNESS: Yes.

COUNSEL: In the presence and hearing of his wife, it is your evidence that he admitted sexual misbehaviour in relation to you?

WITNESS: Yes, he did, even to the point that his wife argued and said, "no, but you guys were never left alone," and then [the appellant] responded and said, "yes, we were," so they got into a little - - -

COUNSEL: I suggest he said no such thing?

WITNESS: He did, I'm sorry. I was there, I 'm sorry, that was said.

COUNSEL: So if his wife were to give evidence to the contrary, you'd obviously disagree with that strongly. In other words, that he made no admissions?

WITNESS: He did make admissions.

13 Having thus foreshadowed that he would be calling the appellant's wife, defence counsel asked complainant L to describe what admissions she claimed the appellant had made. L recounted the appellant's initial denials of her allegations and said

Then suddenly he broke down in tears. He started crying and he said, "Yes, I did, yes I did".

Counsel had the complainant confirm that the appellant had allegedly made these admissions in front of his wife and then put to her that it was 'just a lie'.

14 Later in the cross-examination, defence counsel returned to the topic and again asked L to confirm that she had accused the appellant, in his wife's presence, of sexually assaulting her. He then proceeded to put to L what were, evidently, his instructions from the appellant's wife, as to what she had said to the complainant and, later, what were evidently his instructions from the appellant as to what he would say about the incident. In re-examination, the prosecutor asked the complainant to tell the jury what the appellant had said when he made admissions.

15 After the cross-examination of L was completed, and in the absence of the jury, the prosecutor told the judge that he now wished to call one of the people (M) who had participated with complainant L in the 1998 incident. M would be called to say that he was present when the appellant admitted the sexual assaults. Subsequently, there was a debate, which occupies almost 50 pages of the transcript, about whether the Crown should be permitted to call M, and the related question whether the defence should be permitted to call the appellant's wife, also to give evidence about what she recalled from the 1998 incident.

16 The basis for the prosecutor's application to lead evidence from M was the need to re-establish the credit of complainant L, who had been said by defence counsel to be lying about the 1998 incident. The prosecutor referred also to the evident intention of defence counsel to call the appellant's wife, to support the attack on complainant L's credit.

17 For his part, defence counsel told the judge that he had not expected M to be called but that, even if he had been aware that the Crown would seek to call M, 'I still would have cross-examined in the same [way]'. Counsel pointed out that the record of interview of the appellant referred to the 1998 incident. The prosecutor responded that he had been expecting the defence to seek the exclusion of those references from the record of interview, but no such request had been made.

18 In the following exchange with the prosecutor, the judge identified the very real difficulties which the defence had created, by cross-examining the appellant's alleged admissions into evidence:

HIS HONOUR: Do you really think that if I tell this jury they can only use this material in one way, and that's in relation to the credit, that the jury are really going to be able to do that? The potential for this is enormous. Why it was brought in is another matter, I don't want to go down there at the moment, right or wrong. If I allow it in now, the potential of it is very strong, isn't it?

PROSECUTOR: Then I am going to be left with nowhere to go because what's happened now is - - -

HIS HONOUR: Let me ask you this: would you then be saying that they can use it as the truth of the situation and therefore it is corroborative?

PROSECUTOR: The answer is that I would be seeking to say that.

HIS HONOUR: All of a sudden it's a whole new game, isn't it?

PROSECUTOR: Exactly. I agree with that. But isn't that the risks [sic] the defence take knowing that they are going to put this? I thought my learned friend would ask that in the record of interview to have that whole matter expunged. I was waiting for it come [sic], but it didn't. I've always indicated I'm not going to call it.

HIS HONOUR: Well, you couldn't have. That's the trouble with it now. These are, even if you accept that they were made, they - the jury - descend into what I would regard at the moment as improper reasoning and accept it. Maybe once it's in, even though it can be used for all purposes, it's another interesting argument. If they use it as the truth that he made these admissions, they could never have done that, because there's hardly a clearer case of admissions being made.

PROSECUTOR: I agree with you. That's why I've never intended to use it at all.

HIS HONOUR: I can understand. Looking at it now though, because it's now raised its head, it's still in the category of confessions, effectively.

PROSECUTOR: Yes.

HIS HONOUR: They are not just admissions, they're confessions, aren't they. They really do come into the category of confessions.

PROSECUTOR: I agree. But once it's been put - - -

HIS HONOUR: Which were extracted by violence, and threats and detaining in the face of - "I'm not going to say anything, and kill me". He starts off saying, "I'm not going to say anything. He's going to kill me." But after a few slappings around for a while and a period of time and his wife's there, you can hardly find a more clear occasion.

PROSECUTOR: I agree with all of that, Your Honour.

HIS HONOUR: Well, that's what want you [sic] to address, though. You can't just say, "I agree with all of that, but we're going to belt in with it". I was asking you to turn your mind to the fact that what is the jury then told about it. How does a judge properly use it? I understand it's explosive material in your hands and also in the hands of the defence, but I suspect that Mr Steward didn't quite see this and it wasn't the way he was intending to go and he got a bit excited about it all.

19 Defence counsel was quick to refute the judge's suggestion that he had got 'a bit excited' and had not anticipated the consequences of raising the 1998 incident. Counsel said:

I did it by choice. I did it by design. I didn't expect that [M] was going to be called.

His Honour then pointed out to defence counsel - correctly, in our view - that the Crown's decision not to lead evidence on this matter was explicable because of the non-voluntary nature of the alleged admissions. His Honour went on:

But you then chose, in the face of that, to challenge the witness and say these things were never said and make it very clear, it seemed to me in the running of this trial, that the wife is going to be called, ... who will fall in line with her husband's record of interview, which is that there wasn't anything said.

Now, the point of it being this woman [complainant L] is just a liar. If there's a lie on this point then you cannot believe ... it's a fairly powerful, the Crown say, a fairly powerful piece of evidence and they want to redress it and they say the redress is now calling it, purely on a credit issue and a question mark whether it can be used for any other purpose. Why on earth did you do it if you knew this was sitting in the wings and you could be hit on the head with it, or potentially could be hit on the head with it?

COUNSEL: I've explained, your Honour, that ... I had formed the view that obviously [M] was never regarded as a witness of truth ... Therefore M was completely out of the picture, that it had been thought that he wasn't the witness upon whom the prosecution could rely.

20 The judge asked whether defence counsel objected to the Crown calling M to give evidence about the 1998 incident. Unsurprisingly, counsel said he did not think that he could object. The judge responded:

HIS HONOUR: I agree you've put yourself in a position. I can tell you as the judge, I'm very concerned about it as to whether it should go in. Even though you're not making an application, I think it's going to dramatically change the trial. I think properly the Crown had indicated they weren't going to call these material [sic] or lead it. There's no way it could be led in the hands of the Crown as it was putting its case before the jury.[6]

21 Following the luncheon adjournment, the prosecutor made what, in our view, was the correct submission to the judge in the circumstances. He pointed out that the only reason for the defence's introduction of the 1998 incident was to attack the credit of complainant L. This was, he submitted, a collateral issue. Applying orthodox principles, he argued, defence counsel was bound by the answers given by complainant L to the questions on that collateral subject, and should not be permitted to call any evidence on the subject. If that were the ruling, the prosecutor said, the Crown would withdraw its application to call M.

22 The prosecutor expressed concern - understandably, in our view - about the dangers for the accused if evidence were led about the 1998 incident. If that occurred, he said, the question of whether the admissions were in fact made might become a substantive issue in the trial. The prosecutor said:

I'll be blunt about it, your Honour: if this were to go on appeal, I could imagine the Court of Appeal being very harsh indeed along the lines that your Honour put to me, that how could this become a fact in issue when the likelihood [is] the admissions could have been engendered by violence? How could a jury then decide whether these were admissions or not?

The likelihood is, as your Honour pointed out to me, they would turn it back on to the accused.

...

[It] is clearly an inadmissible statement, which I foresaw at the beginning of the trial. It can't be led, and if it is led the dangers of it are enormous for the accused person.

23 Defence counsel denied that what he was raising was a collateral issue. He said:

Well I've put to [complainant L] if [the appellant's wife] was called and she said he said no such thing, whether the witness would agree with that or not, [the appellant] has said that he said no such thing. So they're not really issues of credit, they're not collateral issues, they're issues that are central to this woman's credit in relation to the - - -

HIS HONOUR: Not to a fact in issue, to a collateral issue, the collateral issue being there was confrontation years after any of these events, years after.

Her truthfulness surely is not a collateral issue, it's a very significant issue in the trial ...

Defence counsel confirmed, in response to the judge's question, that he wished to be able to call evidence from the appellant's wife on this issue and that he would not object to the prosecutor being able to call M to deal with the same issue. When the judge said again that he perceived that there were some dangers for the appellant in the proposed course, defence counsel replied: 'I don't do it lightly, your Honour.'

24 There was further argument, by reference to the decision of the High Court in Nicholls v The Queen,[7] to which we refer below.[8] Ultimately, the judge rejected the prosecutor's submission that there should be no evidence led regarding the 1998 incident. His Honour ruled that he would permit the prosecutor to call M, and defence counsel to lead evidence on this subject from both the appellant and his wife. His Honour foreshadowed that he would direct the jury that such evidence should be used only in relation to their assessment of the complainant's credit, and that evidence of the admissions could not be used on the question whether the appellant was guilty of the offences charged.

25 The introduction of the evidence did dramatically change the course of the trial, just as the judge had anticipated. First, the Crown called M. He gave evidence that, in the course of the 1998 incident, he had 'slapped' the appellant a few times. He said the appellant had subsequently admitted doing what complainant L alleged he had done. According to M, the appellant had, on not less than four occasions, said words to the effect of, 'Yes, I did, I did, OK? I'm sorry. I did it.' M's evidence-in-chief was - appropriately in the circumstances - of very limited compass. It was confined, as the prosecutor had foreshadowed, to the issue on which complainant L had been directly challenged, namely, whether the appellant had on that occasion made admissions.

26 In cross-examination, however, defence counsel sought to open up a range of other issues. First, he put to M a series of propositions about what complainant L had said privately to M about the nature of the alleged sexual abuse of her by the appellant. M agreed with defence counsel that L had made complaints to him in the terms suggested by counsel. These conversations were unconnected with the 1998 incident, and complainant L had not been cross-examined about them.

27 Next, defence counsel asked M whether he had had sex with L against her will. This question, again, had nothing to do with the 1998 incident. M agreed that they had had sex but said that it was consensual. Unsurprisingly, the prosecutor objected to this cross-examination on the grounds of relevance. The trial judge correctly pointed out to defence counsel that there was no issue in the trial as to whether M had had sex with L, with or without her consent. (Earlier, under cross-examination by the defence about the counselling notes, complainant L had stated that M had had sex with her without her consent.) The judge said:

This is just getting out of control ... It's issue building upon issue, getting removed from what the real issues in this trial are.

COUNSEL: You have a witness who says that he hasn't raped her and you've got a witness that says that he did.

28 The judge pointed out to counsel that the question should not have been asked in the first place, as questions about sexual activities of the complainant were prohibited by s 37A of the Evidence Act. His Honour said:

You shouldn't have asked it. You've caused damage, which you shouldn't have done in my view. I take it there's no application to discharge this jury?

PROSECUTOR: No, your Honour.

HIS HONOUR [to defence counsel]: Let's get on with it. Now, look, I've understood that this whole area was going to be a limited exploration on a limited topic. Now, I know I can't stop you, but if there's going to be any more of this sort of venturing out into limbs I want to know about it.

29 When the cross-examination of M eventually turned to the question of the appellant's alleged admissions during the 1998 incident, M reaffirmed his evidence-in-chief that the appellant had indeed made admissions. At that point, the judge directed the jury that they could not use the evidence given by M, of the appellant's admissions, as proof of his guilt. His Honour explained that this was because the alleged admissions had not been made voluntarily. The only purpose for which the evidence could be used was in relation to the credit of the complainant L.

30 Following the closure of the Crown case, defence counsel called the appellant to give evidence. Asked about the 1998 incident, the appellant said that he had been falsely imprisoned for three-and-a-half hours, but had made no admissions. The prosecutor commenced his cross-examination by pointing out the conflict between the appellant's account of the incident, and the evidence given by complainant L and the witness M. The prosecutor then asked the appellant why he had not reported the incident to police. The appellant said that he had been afraid that, if he did so, 'the two professional killers' would have killed him. He believed that complainant L would have directed them to kill him.

31 The prosecutor then put to the appellant that the real reason for his failure to report was that he was:

concerned that if [he] did report the matter then the police might have [him] charged with the offences of sexually interfering with [L] and with [S].

The appellant said that that was 'not really' the reason for his failure to report. As will appear, it was the putting of this proposition, and its repetition in final address, which led to the trial miscarrying.

32 Finally, the defence called the appellant's wife. She gave evidence of having been present during the 1998 incident. She said that her husband had denied L's allegations and that he had 'definitely' never said anything to suggest that he admitted what was alleged.

33 In final address, the prosecutor referred to the evidence which had been given about the 1998 incident. He reminded the jury, as they had earlier been told by the trial judge, that the Crown had made no mention of the matter in opening. He said this was because the alleged admissions were 'absolutely valueless'. He told the jury that they could only use the evidence in relation to L's credit.

34 The prosecutor returned to the incident later in his address and posed this question for them to consider:

Why is it that the accused having been confronted by [L] and beaten up in this way - that he didn't go straight to the police?

Counsel pointed out that the appellant had not made his statutory declaration about the incident until four months later and had said nothing to police until May 1999, when they wanted to interview him in relation to L's allegations. The prosecutor said to the jury:

Now, I am going to put it to you quite bluntly, members of the jury, after I suggested to [the appellant], he didn't go to the police not because he was scared - he was scared of another thing. He was scared that if he did go down and complain about it and there had been a complaint by [L] then he would be charged with the offences that she had confronted him with on that night in that house with [M], that is the sexual abuse that he had inflicted on her - he was concerned that if he did go down there that the police would charge him.

35 Plainly enough, the prosecutor was here putting to the jury that the appellant had deliberately refrained from reporting the 1998 incident to the police because he was aware of his guilt of the sexual offending and was attempting to avoid the consequences. In short, the Crown was inviting the jury to treat the appellant's failure to report the serious offences committed against him in August 1998 as an implied admission of his guilt of the offences with which he was charged.

36 The prosecutor said nothing to the judge about the need for directions on consciousness of guilt, and defence counsel sought none. Defence counsel covered the issue in his address, but did so only on a factual basis. In his charge to the jury, the judge repeated the relevant part of the prosecutor's address, but gave no directions as to how the jury should deal with the evidence of conduct which had been said by the Crown to constitute an implied admission.

37 This was a case of oath against oath. The critical issue was the credibility of the complainants and the appellant respectively. In such a case, the suggestion that the appellant had not reported the 1998 incident to the police because he was afraid of being charged with these sex offences was highly potent. Indeed it may well have been the decisive factor for the jury, even taking into account the onus and burden of proof, as they considered which version of events they were prepared to accept.

38 In the circumstances, we concluded that the judge should have given the jury a direction in accordance with Edwards v The Queen,[9] as to how they might use the evidence of what was said to be an implied admission. In our view, the failure to give such a direction was productive of a miscarriage of justice, and it was on that basis that we upheld ground 4.

39 A direction in accordance with Zoneff v The Queen[10] would not have been appropriate. It would not have been sufficient to say that this matter simply went to the credit of the appellant. The circumstances which call for an Edwards direction were summarised in R v Cuenco[11] by Nettle JA (with whom Maxwell P and Redlich JA agreed), as follows:

The general rule is that an Edwards direction should only be given if the prosecution contends that a lie or other post-offence conduct is evidence of consciousness of guilt, in the sense that it was told or engaged in because the accused knew that the truth or failure to act would implicate him in the commission of the offence, and if in fact the lie or other conduct is capable of bearing that character. Ordinarily, therefore, if the prosecution does not so contend, it is sufficient to guard against the possibility of the jury mistaking the effect of any evidence of lies or other post-offence conduct as evidence of consciousness of guilt to warn the jury along the lines which were propounded in Zoneff:

You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.

But, as was recognised in Zoneff, there are cases in which the risk of misunderstanding on the part of the jury as to the use which they may make of evidence of lies or other post-offence conduct is such that a judge should give an Edwards direction notwithstanding that the prosecutor has not put that a lie or other conduct has been told or committed out of consciousness of guilt. As Kirby J put it, the need to give an Edwards direction:

... cannot ultimately depend upon the intention or subjective purpose of the prosecutor as to whether or not a judicial direction to a jury about that subject of lies [or conduct] must be given. The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it ... There is a lot of loose talk in the cases about the prosecutor's intention ... [It is] irrelevant except so far as it helps to identify what the jury might have made of the questioning or evidence.

40 In the present case, as we have said, there was a high risk that the jury would treat the appellant's post-offence conduct as an admission. The prosecutor had invited them to do just that.

The evidence going to credit should not have been admitted

41 As the foregoing narrative reveals, what led ultimately to the trial miscarrying was the judge's ruling that evidence could be called, on both sides, about the 1998 incident. As noted earlier, the only basis for the defence introducing this topic into evidence was to attack the credit of complainant L. The prosecutor argued that this was a collateral issue and that the defence should not be permitted to lead evidence going to credit. Defence counsel asserted that the complainant's credit was the central issue in the case and hence could not be viewed as collateral.

42 Had the prosecutor's submission been upheld, and the proposed evidence ruled inadmissible, there would have been no occasion for the prosecutor to cross-examine the appellant about why he had not reported the false imprisonment earlier. In short, the point on which this appeal succeeded would never have arisen.

43 With respect to his Honour, we think that the evidence should not have been admitted. For reasons which follow, the collateral evidence rule (or the finality rule, as it was referred to in R v BDX[12]) should have been viewed as precluding it. Although this point was not argued on the appeal, we think it appropriate to deal shortly with it, in view of its significance in this trial and the prospect of the same issue being pursued in a retrial.

44 The prosecutor's submission accorded with the orthodox view of the collateral evidence rule. In Nicholls,[13] Hayne and Heydon JJ (with whom Gleeson CJ agreed) cited the following statement from Phipson as defining 'the traditional rule':

A party may not, in general, impeach the credit of his opponent's witness by calling witnesses to contradict him as to matters of credit or other collateral matters.[14]

Conversely, what was said in Nicholls provided a complete answer to the defence submission. Hayne and Heydon JJ[15] said:

...[T]he law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness's credibility is inextricably linked with the principal issue in the case.[16]

45 Their Honours referred to cases suggesting that, 'where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point'. Their Honours declined to endorse this suggestion, saying:

That line of reasoning has been criticised even in sexual offence cases. It has been accepted in cases where the only significant issue is consent, but not where the issue is whether the acts took place; it has been argued that if it were to apply where the issue is whether the acts took place, it would apply to any offence of which there is no extrinsic evidence and no disinterested witnesses. It has also been said that to use it "as a basis for departing from the general rule of finality would leave too wide a gap in that important rule".[17]

46 In Nicholls, McHugh J propounded a more flexible view of the collateral evidence rule, saying that the rule should be seen

as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness's denials concerning matters of credibility should be regarded as generally admissible if the witness's credit is inextricably involved with a fact in issue.[18]

As Nettle and Redlich JJA noted in BDX,[19] however, none of the other six members of the High Court in Nicholls acceded to the invitation to modify the rule.

47 For completeness we should add that defence counsel did not seek to invoke, and the nature of the attack on complainant L would not seem to have engaged, any of the established exceptions to the collateral evidence rule.[20]

48 As noted earlier, we reserved for further consideration the ground contending that the verdicts were unsafe and unsatisfactory.

49 The submission for the appellant was that it was not open to a properly instructed jury to be satisfied beyond reasonable doubt that he was guilty of the offences charged. The following matters were relied on in support of that contention:

(a) weakness in the complainants' evidence, including troubling aspects of their reliability, changes in evidence, inconsistencies, prior inconsistent statements and the improbability of the behaviour alleged.

(b) the very long delay before complaint was made and the further long delay between complaint and prosecution;

(c) the possibility of collusion between the complainants;

(d) the absence of corroboration (except in relation to Counts 3, 4 and 10);

(e) the appellant's sworn evidence denying the charges;

(f) the sworn evidence of the appellant's wife and son supporting aspects of the appellant's case that the offences could not have occurred; and

(g) the sworn evidence of the appellant's good character.

It was said that the matters in paragraphs (b), (c), (d) and (g) were self-explanatory.

50 In support of the argument on (a), reliance was placed on what appeared in the counselling notes, which contained references by L to assaults 'by many men - not just one' and to her suspicions that her father might have sexually assaulted her. It was submitted that L's evidence about the notes demonstrated that she was a poor historian. Further, it was argued that L's reliability was undermined by her evidence that she had had paranoid thoughts, and had used marijuana. Her evidence that she had been told by Dandenong Police to 'take matters into her own hands but not get caught' was said to be 'incredible'.

51 The second complainant, S, was also criticised. It was said that her evidence was 'very vague', and that this suggested she was untruthful or unreliable. Attention was also drawn to evidence given by S that she said she had 'visions' or 'flashbacks' of the alleged abuse. The relevant evidence was:

COUNSEL: However, you have flashbacks of some of these incidents. Is that right?

WITNESS: What do you mean?

COUNSEL: Just that: flashbacks?

WITNESS: Yes.

COUNSEL: When did the flashbacks start?

WITNESS: I've always had visions of what happened to me those two incidents: they're not something that came as a result of anything else. They were always there.

COUNSEL: Flashbacks?

WITNESS: And the reason I refer to them as flashbacks is because I can't tell you for sure what happen before, prior, or after the incidents. So I remember being there, but I can't give you all the details before and after.

52 Next it was pointed out that each of the complainants had changed the account she gave of when the conduct forming the basis of counts 3, 4 and 10 had occurred. The change occurred after the complainants were shown photographs of a family event. They were both challenged about this in cross-examination. It was further put that the evidence of each of the complainants on the question of collusion was entirely unsatisfactory and that the possibility of collusion could not be excluded. There were also several prior inconsistent statements, and some inconsistency between the evidence of the two complainants about the incident for which they were both said to have been present. Finally, it was said that some of the evidence given by the complainants was directly contradicted by the defence witnesses.

53 The submission of the Crown was that the proper test to be applied was that in Libke v The Queen[21] where the High Court said:

It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the 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.[22] 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. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.

54 According to the Crown's submission, the criticisms made on behalf of the appellant were matters before the jury, which they must be taken to have considered. In particular, the conflicts in evidence between the complainants and the accused were clearly exposed by the course of the evidence, as were the issues of inconsistency.

55 In our view, the 'unsafe' ground must be rejected. We have reviewed the evidence in its entirety and, in our view, it was reasonably open to the jury to be satisfied of the appellant's guilt. The state of the evidence was not 'such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.'[23]

56 As we have already said, this was a case which turned on the jury's assessment of the credibility of the key witnesses - the two complainants and the appellant. There were proper bases on which the credit of the complainants could be challenged, and they were challenged on all of these matters, at length, in cross-examination. But nothing which emerged in the course of the evidence comes near to satisfying the Libke[24] test. That is, while the jury might have had a reasonable doubt about one or more of the allegations, they were not bound to have such a doubt.

57 The convictions having been quashed, the Court must decide whether to direct a retrial or direct that verdicts of acquittal should be entered. The submission for the appellant was that the latter course should be followed. According to the written submission:

18. There is an unacceptable risk that an innocent man has been convicted. The convictions should be set aside and, in their stead, verdicts of acquittal should be entered.

19. Even if the Court takes the view that it was open to convict, it is submitted that the following factors nevertheless compel the conclusion that acquittals should be directed in the exercise of discretion: First, all the same factors relied upon in support of Ground 6(b) at least compel the view that case is a weak and afflicted one. Secondly, the delay in complaint and then in particular the eight-year delay in prosecution resulted in the [appellant] being denied a "full Longman" warning that it is dangerous to convict on the uncorroborated evidence of the complainants. Thirdly, the [appellant] has now spent approximately 18 months in custody. Fourthly, he (and his wife) suffered extra-curial punishment at the hands of [L] and two hired thugs.

58 In our view, this submission must be rejected. The evidence does not support the contention that there is an 'unacceptable risk' that an innocent man has been convicted. On the contrary, as we have already said, it was reasonably open to the jury, on the evidence presented at the trial, to be satisfied beyond reasonable doubt of his guilt. Nor, therefore, are we persuaded that the case against the appellant is properly characterised as a 'weak and afflicted one'. In our view, the jury's evident conclusion that the complainants were credible witnesses was well open on the basis of the evidence which they respectively gave.

59 Nor do any of the other points relied on advance the argument. The fact that the appellant was, in this trial, denied a 'full Longman warning' is irrelevant to the question whether there should be a new trial. The fact that he has been in custody following his conviction is likewise of no consequence, given that the period of incarceration to date is only a fraction of the minimum term fixed.[25] As to the issue of 'extra-curial punishment', that will be relevant, if at all, as a matter going to sentence.[26]

60 As described earlier in these reasons, the appellant's trial miscarried as a consequence of the course determinedly pursued by his counsel. The investigation of the 1998 incident, and the calling of evidence about it, must be seen as reflecting the appellant's instructions to his counsel. Accordingly, there is nothing in what occurred at the trial which would make it unjust to the appellant to make him stand trial again.[27]

61 Nor is this a case of giving the prosecution an opportunity to supplement a defective case.[28] Rather, the prosecution will - it must be assumed - present the same evidence from the same complainants. (We deal separately below with the ground relating to counts 1, 3 and 10.)

62 For these reasons, we will direct that there be a retrial.

(a) even at its highest, the evidence relied on in support of counts 1, 3 and 10 did not amount to indecent assault because it did not disclose any assault by the appellant;

64 In initial submissions, the Crown conceded that the ground was made out in relation to these three counts as pleaded, but contended that the Court should apply s 569(2) of the Crimes Act 1958 (Vic) ('Crimes Act') to substitute verdicts of guilty of gross indecency.[29] On the hearing of the appeal, however, the Crown's concession on count 1 was withdrawn.

65 It was submitted that, on one view of the evidence on count 1, there was evidence of indecent assault. This was the evidence:

PROSECUTOR: Yes. Then what happened?

WITNESS: I helped him masturbate himself.

PROSECUTOR: How did you do that?

WITNESS: Well, he had one hand on and my other hand on, and then - - -

66 To support the count of indecent assault, this evidence would have had to be interpreted as meaning that the appellant was holding the complainant's hand on his penis. Although that is a possible interpretation, the evidence is far from clear. In the circumstances, the jury could not have been satisfied beyond reasonable doubt that the conduct as described did amount to indecent assault.

67 It follows, in our view, that ground 6(a) succeeds. It was not reasonably open to the jury to be satisfied on the evidence that the appellant was guilty of any of the three counts of indecent assault.

68 In a helpful supplementary submission, senior counsel for the Crown pointed out that, in view of the appellant's success on ground 4, it was not open to this Court to substitute alternative verdicts under s 569(2) of the Crimes Act. He submitted that the Court could, and should, direct that verdicts of acquittal be entered in relation to counts 1, 3 and 10. He further submitted, however, that, consistently with the decision of the High Court in AJS v The Queen,[30] the Court should direct that a new trial be had in relation to offences of gross indecency, pursuant to s 50(1) of the Crimes Act as in operation at the time of the alleged conduct.[31]

69 The submission for the appellant was that the present case was distinguishable from AJS. In that case, the accused had been found guilty of incest, contrary to s 44(1) of the Crimes Act. The offence of committing an indecent act with a child, contrary to s 47(1) of the Crimes Act, was a statutory alternative to the s 44(1) offence. Because of the conviction on the incest count, however, no verdict was taken on the indecent act count. This Court allowed an appeal against conviction, on the basis that it was not reasonably open to the jury to conclude that an act of penetration had taken place. The Court quashed the incest conviction and directed a new trial. On appeal, the High Court held that this Court should have directed an acquittal on the incest count but had power under s 568(2) of the Crimes Act to order that there be a new trial limited to the (alternative) s 47(1) offence.

70 The appellant relied on three factors to distinguish the present case. First, gross indecency was not left to the jury as an alternative verdict on the indecent assault counts. Secondly, the offence of gross indecency is not an express statutory alternative to the offence of indecent assault. Thirdly, the general power of the jury under s 421(2) of the Crimes Act, to find an accused guilty of an alternative offence, did not extend to a verdict of guilty of gross indecency, because the allegations of indecent assault did not

amount to or include (expressly or by necessary implication) an allegation of [gross indecency].

Alternatively, it was said, for the Crown now to be able to proceed on counts of gross indecency would be 'to allow it unfairly to mend its hand'.

71 In our view, the Crown's submission should be upheld. As in AJS,[32] no question of double jeopardy arises. This is so because, on the view we have taken of the evidence led in support of the indecent assault counts, the appellant was never 'in jeopardy' on any of those counts. As a matter of law, the evidence available to the prosecution could not have supported a conviction for indecent assault.[33]

72 It is true that gross indecency is not a statutory alternative offence, and was not left to the jury as an alternative, but we do not see those matters as affecting the analysis. In Island Maritime Limited v Filipowski,[34] a second proceeding was commenced after a first proceeding, dealing with the same subject matter, had been dismissed. An application for a stay of the second proceeding was dismissed at first instance and on appeal. In that case, as in the present, the defendants were never 'in jeopardy' in the relevant sense in the first proceeding. Nor was it held to be unfair for the defendants to be proceeded against a second time. Gleeson CJ, Heydon and Crennan JJ rejected the alternative argument of abuse of process, saying:

The appellants are not being prosecuted for the same offence, or overlapping offences: originally they were prosecuted for the wrong offence and now they are being prosecuted for the right one.[35]

73 The same will be true here if the appellant is tried for gross indecency in respect of the relevant incidents. No question arises of the prosecution curing any

substantive deficiency in the case. The same evidence must, necessarily, be relied on.

74 I joined in the orders made on 20 October 2009, by which the Court allowed the conviction appeal because, in my opinion, ground 4 had been made out. The explanation given by Maxwell P and Coghlan AJA, whose reasons I have read in draft, shows why that ground was established.

75 On 20 October 2009 the Court reserved its decision as to what orders should be made. There remained for its consideration, particularly, the appellant's contention, raised by ground 6, that the verdicts were unsafe or unsatisfactory. The Court invited counsel to file additional written submissions upon that question. That was done.

76 In the circumstances, the appellant was granted bail. He has been at liberty, so far as I am aware, since 20 October 2009.

77 Maxwell P and Coghlan AJA have concluded, applying the statement of principle by Hayne J (with whom Gleeson CJ agreed) in Libke v The Queen,[36] which drew on what was said in M v The Queen,[37] that the verdicts were not unsafe or unsatisfactory.[38] I have considered the various matters particularly relied upon by appellant's counsel. In my opinion, a number of them were of substance - most particularly, criticisms made of the evidence of the two complainants. I further consider that the verdicts, in the particular circumstance of this case, do not provide much guidance with respect to the credibility issues which loomed large at trial. That is because of the intrusion - regardless how it occurred - of the potential for the appellant's credit being impermissibly undermined by the matters raised by ground 4. But, in the end, I agree that it cannot be said that the jury must have entertained a

78 The question then arises, should there be an order for a retrial, or should verdicts of acquittal be entered? This question involves the exercise of the discretion confided in the Court by s 568(2) of the Crimes Act 1958 (Vic). Maxwell P and Coghlan AJA have concluded that a retrial should be ordered.

79 I consider it desirable, in reaching my own conclusion as to the proper exercise of the discretion, to refer to a number of aspects of the chronology. Thus:

(1) The appellant was born on 27 November 1948. He was aged 59 when sentenced on 2 June 2008. He is now aged 61 ½ years.

(2) The offences alleged against the appellant occurred in the period 1982 to 1986.

(3) The appellant was unlawfully imprisoned and assaulted by one of the complainants and two other men in late August 1998.

(4) The two complainants first made statements to the police in late December 1998 and early January 1999 respectively.

(5) The appellant was first interviewed on 1 May 1999.

(6) The appellant was charged on summons on 27 February 2007.

(9) The appellant was remanded in custody, after the jury verdicts, on 24 April 2008.

(11) The appellant's appeal was heard on 19 and 20 October 2009.

80 The discretion conferred on the Court by s 568(2) is in terms unfettered. That said, the governing consideration is what the interests of justice require in the particular case. The broad approach to resolving that issue was described in Director of Public Prosecutions (Nauru) v Fowler[39] in a passage which has often been cited and applied.[40] It is to be borne in mind that the justice of the matter needs to be looked at from the standpoint of the public interest in the administration of justice as well as by having regard to the interests of the particular accused.

81 As a subtext of the first of those considerations, I should refer to this passage in the judgment of Kirby J in Dyers v The Queen:[41]

An important consideration favouring the ordering of a new trial in such circumstances is the fact that, by doing so, the Court discharges its principal functions as an appellate court. It identifies any legal error. It quashes the judgment or orders infected by that error. It vindicates the law by its order permitting a retrial when the error will not presumably be repeated. Such order also respects the proper functions of the trial court, including the jury (where applicable), as the decision-maker resolving disputed matters of fact in serious criminal cases where guilt is contested. It leaves that decision-maker, properly instructed, to bring in the verdict that leads to conviction or acquittal. It avoids overreaching the functions of the appellate court. It maintains the divide between the respective powers and responsibilities of the Executive Government, to decide upon the prosecution of criminal offences (including by way of a repeated prosecution at a second trial), and of a court, whose functions ordinarily arise in criminal matters only after the decision to prosecute (or reprosecute) is taken.

His Honour dissented in the application of the discretion in that case. But as a statement of principle, the correctness of what he said could not be doubted. It was reformulated, in substance, in R v Thomas (No 3).[42]

82 There have been a number of judicial attempts to list considerations which bear upon the exercise of the discretion. The most comprehensive list of which I am aware was that compiled by Kirby J in Dyers.[43]

83 The indispensable circumstance which justifies an exercise of discretion to order a retrial is - except in a very rare case, as exemplified by R v Thomas (No 3)[4] - that there was admissible evidence at trial which was 'sufficiently cogent' to justify conviction. In my opinion, there was such evidence - though not upon counts 1, 3 and 10 as they were then formulated. I say 'sufficiently cogent' although I consider, as I have already said, that a number of the criticisms of the Crown case relied upon by the appellant did not lack force; and although, having regard to the way in which the trial proceeded, I would attach little significance to the jury's verdicts. Ultimately, recognising that the Crown bore the onus of proof, this was largely an oath-against-oath case. Such criticisms as could legitimately be made of the evidence of the complainants did not mean, I consider, that a jury could not reasonably accept that evidence.

84 The next matter tending in favour of an order for a retrial is that the charges laid against the appellant were serious, quite numerous, spanned a period of years, and involved two complainants. In the event of the appellant's conviction, it was inevitable that sentence of quite some years' imprisonment would be imposed. There is a public interest in the resolution by the body which, in the ordinary course, determines guilt or innocence - that is, the jury - of the appellant's guilt or innocence upon those serious charges.

85 Another matter, it is related to the second, which tends in favour of an order for a retrial is that the appellant has only served a small part of the sentence which it could be expected would be imposed if, on a retrial, he was again convicted. The case is not one in which the appellant has already served all, or at least the immediate custodial part, of the sentence originally imposed.

86 There are, however, a number of considerations which in my opinion tell against an order for a retrial.

87 First, the alleged offences occurred a long time ago. Whilst that is not uncommon with alleged offences of this kind, in the present case there was an unexplained, eight-year interval between the appellant being first interviewed and charges being laid. That added to a delay of months between the complainants making their statements and the appellant being interviewed. The appellant was, in the event, under threat of commencement of prosecution for a very long time.

88 Second, complaints were not made until after the appellant had been unlawfully detained and assaulted by one of the complainants and two other men. Regardless that these events were ventilated at trial at the instance of the appellant's counsel, and that it may be said that the appellant brought the mistrial upon himself, it is quite unacceptable that the complainant should have taken matters into her own hands in a kind of vigilante justice. I am not persuaded that the sufficient answer to the matter could or would be adequately reflected in amelioration of sentence in the event of the appellant's retrial and conviction.

89 Third, the appellant is now a man of 61. Of itself, that should not tell decisively against a retrial. Often enough, in the Court's experience, offences such as were alleged against the appellant are only the subject of complaint many years after the event; and so it is not uncommon that the alleged offender is getting on in years. But in this case, if he was retried and again convicted, the appellant would be serving a sentence which would be likely to extend at least into his late sixties. If there had not been the very long delay in instituting prosecution, the appellant, if convicted, would probably have been out of gaol by the time that he was not aged much over 60. He would have had much more of his remaining life to spend with his family.

90 Fourth, the evidence on the plea showed that the appellant had no prior or subsequent convictions, and that he was - apart, obviously, from the conduct the subject of the convictions - of good character. The learned sentencing judge concluded that the appellant was 'very largely rehabilitated'. These considerations could be given effect in sentence, of course, if the appellant was retried and convicted. But I think that they should not be ignored in considering whether the interests of justice, as I have previously described them, would be served by a retrial.

91 Fifth, the effect of the joint judgment is that the appellant will fall for retrial on different counts to those upon which he was presented in 2008 in respect of the matters alleged by counts 1, 3 and 10. That is because the conduct alleged against the appellant was not capable of supporting the counts upon which he was presented, but might have supported other counts. Notwithstanding that it can be assumed that, on a retrial, the complainants would give the same evidence, and that strictu senso, the appellant would not face double jeopardy if presented on different counts, and notwithstanding that it would not be an instance of the Crown curing a substantive deficiency in its case were it so to proceed, to permit a retrial on the subject matter of the particular counts would not encourage the proper administration of justice - an important aspect of which, it seems to me, is that the Crown should present an accused on counts which are correctly formulated having regard to the evidence which the Crown proposes to adduce.

92 I should mention one further matter. Maxwell P and Coghlan AJA observe that the trial miscarried because of the course determinedly pursued by his counsel, which must be seen as reflecting the appellant's instructions. In their Honours' opinion, this means that nothing occurred at trial which would make it unjust to the appellant to make him stand trial again.

93 It is, of course, clear that the imbroglio highlighted by ground 4 was initiated by appellant's trial counsel. But, the problem having been initiated, at least the prosecutor cannot be absolved from some responsibility for what occurred - for, after all, he invited the jury to reason by consciousness of guilt methodology. Further, the learned trial judge gave no direction about that matter.

94 In the event, from my perspective, not much should be made of that particular matter when considering exercise of the discretion.

95 In the ordinary course, as I have said, it is the jury which should determine guilt or innocence so long as there is cogent evidence upon which a jury could convict. I have accepted that there is such evidence in this case. On the other hand, I consider that there are a number of circumstances, which I have identified, that tell against an order for a retrial - to which circumstances there may be added the fact that the appellant has been at liberty since late October 2009. In the end, however, despite having real doubts about the matter, I have concluded that an order for a retrial should be made. This does not mean, of course, that a retrial will be had. As Kirby J stated in Dyers,[44] whether that will happen is a matter for decision by the Executive Government, represented by the Director of Public Prosecutions.

[1] The appellant was granted leave to appeal on 20 October 2009 by this Court.