R v A J S [2005] VSCA 288

"9. The learned trial Judge erred by failing to direct the jury that an element of the offence of incest is that the act of penetration be committed intentionally."

11 We deal with this ground first. For the reasons which follow, we consider that the ground should be upheld, and the conviction quashed.

12 After summarising the evidence, the learned trial Judge gave the jury directions of law. Her Honour gave the following direction concerning the incest count:

"The count on the presentment is that the accused took part in an act of sexual penetration with the complainant, a person who he knew to be his lineal descendant, in that he introduced his finger into the vagina of the complainant.

In order to prove this charge the Crown must prove the three elements of the crime beyond reasonable doubt and those elements are number one, sexual penetration by the accused of the complainant. Sexual penetration in this case means penetration of the vagina by the finger. Any such penetration is sufficient. The finger does not have to go all the way in. Any penetration is sufficient. It is a question of fact for you, the jury, to say whether the finger did, to any extent, enter the complainant's vagina.

The second element, that the complainant was the lineal descendant of the accused and that he knew this to be the case. You have heard the evidence about this from her mother and indeed from the accused. It was not in dispute that the accused is the grandfather of the complainant.

The issue here really is has the Crown proved to your satisfaction, beyond reasonable doubt, that the accused did what the complainant alleges he did, penetrate her vagina with his finger. So if the accused placed his finger to any extent in the vagina of the complainant he is guilty of this crime. I should add that you have been correctly told that consent is no defence to this charge.

The Crown must therefore prove, one, the sexual penetration, and, two, the relationship of, in this case, grandfather and granddaughter. And must prove each of these elements of the offence, beyond reasonable doubt. If it proves each element the accused is guilty of the crime. If it failed to prove one or other of them he is not guilty." (emphasis added)

13 Though the learned trial Judge expressly set out to do so, she did not make any reference to the third element of the crime, namely that it was an intentional act. According to the direction which was given, if the Crown established penetration and the relationship of grandfather and granddaughter, the accused was guilty of the crime.

14 The learned trial Judge also directed the jury, in accordance with s.425(3)(b) of the Crimes Act 1958, as to the alternative charge, namely that the applicant had committed an indecent act with a child under the age of 16 years to whom he was not married (in breach of s.47(1)). Specifically, the jury were instructed that it was necessary for the prosecution on this count to establish that the applicant did the indecent act "wilfully". As to the meaning of the term "wilful", the learned trial Judge instructed the jury that:

"An act is wilful for the purposes of this offence either in that the accused intended to perform the act alleged, or that he did so recklessly as to the consequences of his act. What you must consider is the state of mind of the accused to the time of committing the act and not the state of mind of a reasonable person. On the evidence before you I suggest that you would consider whether the accused intended to commit that act. Before you could convict the accused you must be satisfied beyond reasonable doubt that he committed the act wilfully, as I have defined it".

15 The learned trial Judge then briefly reminded the jury of the evidence upon which the Crown relied in respect of the alternative count, but did not do so in relation to the incest count. Her Honour told the jury that the applicant denied having intentionally committed an indecent act with the complainant. Her Honour directed the jury that they could not find the accused guilty on the alternative count unless they were satisfied beyond reasonable doubt of each of the elements of that offence, as they had been directed. The jury then retired to consider their verdict.

16 Some exceptions were taken to the trial Judge's charge. Her Honour was asked to correct an error in relation to the summary of the evidence. The prosecutor asked the trial judge to provide the jury with some instruction as to the definition of "vagina" (as to which, see further below). Counsel for the applicant asked the trial judge to summarise the closing addresses of counsel. The trial Judge gave the redirections as requested. As to the last exception, Her Honour reminded the jury that both parties had addressed them on the basis that the issues were whether the accused had penetrated the complainant's vagina and whether the accused's acts were intentional.

17 No other exception was taken to her Honour's charge. In particular, no exception was taken concerning the failure to direct as to the element of intent on the count of incest.

18 On this appeal, counsel for the applicant submitted that intent was an essential element of the offence of incest and, further, that it had been one of the principal issues in the trial. He submitted that the failure of the Judge to direct the jury as to intent involved a fundamental departure from a proper trial and constituted a miscarriage of justice. Counsel further submitted that the direction on the alternate charge of indecent assault - that the applicant's conduct must have been "wilful" - could only have served to compound the deficiency in relation to the direction on the count of incest. He submitted that the contrast in the directions given on the primary and alternative counts would have tended to emphasise in the jury's mind that intention was not an element of the offence of incest which the prosecution was required to prove beyond reasonable doubt.

19 Remarkably, having regard to the fundamental principles to which we will refer, the Crown did not concede before this Court that intent was an "element" of the offence. The Crown relied on the fact that - in contradistinction to the alternative charge - the statutory language creating the offence of incest made no reference to intention.[1]

20 In our view, this submission is without foundation and must be rejected. As counsel for the Crown acknowledged, it is a cornerstone of our notions of criminal responsibility that the accused must be shown to have had a blameworthy state of mind. As Stephen, J. pointed out more than a century ago in Reg v Tolson[2]:

"The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed."

21 The reference to the mental element being proved to be absent was explained in Woolmington v Director of Public Prosecutions,[3] in which the House of Lords laid down what Viscount Kilmuir LC later described, in Bratty v Attorney-General (Northern Ireland),[4] as "the overriding principle", namely that -

"It is for the prosecution to prove every element of the offence charged."

"One of these elements is the accused's state of mind; ... if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea - if indeed the actus reus - has not been proved beyond reasonable doubt." [5]

22 Again, Dixon, J. in Thomas v R[6] described the mental element in crime as "the most fundamental element in a rational and humane criminal code". In Ryan v R[7], Barwick, C.J. said that "an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act". This reflected the view expressed in Hardgrave v The King[8] by Griffith, C.J., that a person is not criminally responsible for an act "which is done independently of the exercise of his will or by accident". The existence of a voluntary, willed act is an essential element of the crime. [9]

23 An intent to do the physical act involved in the crime charged is indispensable to criminal responsibility. Intent is, unequivocally, an element of the crime.[10] It is trite law that proof of an offence involves proof that the accused acted voluntarily and intended the act with which he is charged.[11] In He Kaw Teh v The Queen, Brennan, J. stated as a general principle that:

"There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind."[12]

24 There are competing views amongst jurists, writers and academics as to whether the voluntariness of the accused's conduct should be regarded as part of the actus reus or as part of the mens rea.[13] In Director of Public Prosecutions (NT) v WJI,[14] Gummow and Heydon, JJ. considered that the voluntary nature of the conduct of the accused must be either an element of the actus reus or an element of the mens rea.

25 To prove the crime of incest, the prosecution must establish that the act of penetration was a voluntary and intentional (or willed) act on the part of the accused. The element of intent may not often be in controversy in crimes involving sexual penetration but, when intent is in issue, it is of paramount importance that the jury be directed as to the obligation of the prosecution to establish intent beyond reasonable doubt.

26 In this Court, the Crown submitted that, notwithstanding the failure by the Judge to refer to the need for the prosecution to establish intent, there had been no substantial miscarriage of justice having regard to the manner in which the trial had been conducted. It was said that, since both the Crown and the defence case had been conducted before the jury on the basis that the intention of the applicant was a central issue, the defect in the direction was not fatal. The jury would have recognised - so it was submitted - that it was necessary for the prosecution to establish that the applicant intended to penetrate the complainant's vagina. It was submitted that the proviso (s.568 Crimes Act 1958) should be applied, since there was no chance that the applicant would have been acquitted if the correct instruction had been given to the jury.

27 We reject this submission. In our view, the applicant did not receive a fair trial according to law and there has been a substantial miscarriage of justice.

28 In Wilde v R Brennan, Dawson and Toohey, JJ. observed that:

"It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick, C.J. in Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the Appeal Court is of the opinion that on a proper trial the appellant would inevitably been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso ... ." [15] (emphasis added)

29 The circumstances in which the Victorian proviso (or its equivalent) may be applied have been the subject of frequent consideration.[16] If the defect in the direction can properly be characterised as involving such a departure from the essential requirements of the law that it goes to the root of the proceedings, the proviso will have no application. Even where the irregularity cannot be so characterised, the proviso will still not apply where the defendant has lost a chance of acquittal that was fairly open to him or - as it is sometimes expressed - where it cannot be said that the Defendant would inevitably have been convicted had there been no irregularity.

30 A failure by the trial Judge to instruct the jury as to an essential element of the offence will not necessarily go to the root of the proceedings. In Krakouer v R, Gaudron, Gummow, Kirby and Hayne, JJ said:

"We do not accept that the proceedings against the appellant were fundamentally flawed or 'have so far miscarried as hardly to be a trial at all'. Each of the matters which we have mentioned (the fact that the misdirection concerned an element of the offence, occurred at the end of the trial and reversed the onus of proof) may invite the most careful attention to whether the proviso can be applied; each of these matters may be said to suggest that the jury may have been led into a false or unsafe chain of reasoning. But we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every 'wrong decision of any question of law' lead to the quashing of the conviction or a new trial. As was seen Wilde v The Queen 'there is no rigid formula to determine what constitutes such a radical or fundamental error' as to preclude the application of the proviso. Simply demonstrating that there was a misdirection on a matter relevant to the jury's consideration is not sufficient."[17] (emphasis added)

"Misdirections of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of the criminal trial according to law. It is difficult to see how the weight of evidence can have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice." [18]

32 In our view, the failure to direct the jury about proof of intent beyond reasonable doubt was, in the circumstances of this trial, an error of such a fundamental nature that it went to the root of the proceedings.[19] The applicant's defence was that any contact with the complainant's vagina was accidental. The question of intention could not have been more pivotal. The possibility cannot be ruled out that the applicant lost a fair chance of acquittal by not having a trial in which the relevant law was correctly explained to the jury.

33 The Crown's submission that the irregularity could not have altered the jury's verdict is unsustainable. If the jury gave effect to the learned trial Judge's instructions, they would have - quite erroneously - regarded themselves as bound to return a verdict of guilty once they were satisfied beyond reasonable doubt of two matters, and two matters only - the fact of penetration, and the existence of the requisite relationship.

34 As noted earlier, no exception was taken concerning the failure by the learned trial Judge to direct as to the element of intent on the count of incest. Conscious as we are of the pressures to which trial counsel are always subject, we nevertheless view with real concern the failure of counsel who appeared at the trial to take exception in this regard. As we have said, the question of intention could not have been more central to the trial or, therefore, to the jury's task. The trial Judge having stated clearly that there were three elements of the offence, but then having referred only to two, it is hard to understand why exception was not taken.

35 As this Court emphasised in R v Wright,[20] it is counsel's duty to take objection where necessary. Phillips, C.J. and Charles, J.A. said "with emphasis" that -

"it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal. This case stands as a warning not only that defence counsel who failed to take appropriate exceptions are in breach of their obligations both to their clients and the court, but also that the failure to take exception may prevent the issue being raised on appeal. Prosecutors have, of course, a like obligation to the court since the Crown has no interest in securing a criminal conviction as such - the Crown's interest is rather in the attainment of justice for the whole community, a fundamental aspect of which is the fair trial of an accused in accordance with law."[21]

36 Callaway, J.A. referred to R v Calides,[22] where Wells, J. said:

"It is very much [counsel's] task to monitor the summing up as it progresses, to make notes of matters to which they would wish to invite the learned trial Judge's attention, and to be careful to bring forward anything that might possibly lead to a mistrial."

37 We respectfully adopt and endorse those remarks. In the present case, the trial Judge did not receive the assistance to which she was entitled from either the prosecution or defence counsel.

Ground 8

The verdict of guilty should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

38 Under cover of Ground 8, the applicant contends that the verdict is unsafe and unsatisfactory and against the evidence and the weight of the evidence. It is submitted that it was not open, on the evidence given by the complainant as to the issue of sexual penetration, for the jury reasonably to conclude beyond reasonable doubt that the complainant introduced his finger to any extent into the complainant's vagina (which is to say, to any extent into the labia majora). We accept that contention.

39 The only evidence of penetration given by the complainant in-chief was the following:

"[Prosecutor]: So when [the applicant] came in with the bucket on the first occasion and you were sick, what happened once you had filled the bucket? Did he do anything with the bucket? --- Yeah, he took it out into the bathroom and emptied it.

What happened when he had emptied the bucket? --- He brought it back in.

Did that happen on several occasions or just once that he brought the bucket back in for your assistance? --- Maybe twice, yeah, couple of times.

Can I ask you when you were there lying in bed, what were you wearing? --- My pyjamas.

What sort of pyjamas were they, can you tell us what they were like? --- Long pants and a long-sleeved T-shirt.

Did you have any underpants on?---Yes.

What sort of underpants were they? How high did they come up in relation, say, to your belly-button? --- Hipsters.

They were hipsters, were they, all right. Was there any stage at which you fell asleep? --- Yes.

When you fell asleep, did you stay asleep or did you wake up at any stage? --- I woke up.

Are you able to say what happened when you woke up? --- Yes.

What happened? --- My grandfather was rubbing my stomach and he put his hand down my pants and put his fingers inside my vagina.

When you say he put his hand on you stomach and was rubbing your stomach, is that something that you wanted him to do? --- Yeah.

How were you feeling at that time when he was rubbing your stomach? --- Awful.

You said that he had - well, could you please just make it clear, whether he had his hand under or over your underpants when he was rubbing your stomach? --- It wasn't under.

When you say he put his fingers inside your vagina, where was his hand in relation to your underpants, under or over them?---Under.

At the time that he did this, what were you doing? --- I was awake but I had my eyes closed and I rolled so he would stop and---

Did he stop? --- No.

What did he do? --- He kept on doing it.

Was there anything else that he did at that time? --- He grabbed my leg and pulled my legs apart.

Where were you on the bed when that happened? That is, were you lying with your back on the bed, or what was your position when he tried to pull your legs open? --- On my back.

At the time that he first put his fingers inside your vagina, where were you on the bed at that time? --- On my back.

When he was trying to open your legs, what did you do? --- I rolled to my side.

And how did he react to that? --- He didn't stop.

Did he eventually stop? --- Yes.

How did that come about, do you know? --- I rolled on to my stomach.

Did he say anything when he was doing this? --- No.

Did you say anything? --- No.

Once he did stop, what was the next thing that happened? --- He got up and went out of the room."

40 In cross-examination, however, it was said that:

"[Defence counsel]: One of the things you did was that you asked your grandfather - I will rephrase that - you were screaming to your grandfather to take the pain away, weren't you? --- Yes.

So in the course of being in agony you were also screaming out to him, 'Please take the pain away'? --- Yes.

And you put his hand on your stomach and showed him were it was, didn't you? --- Yes.

And he was rubbing your stomach with his hand? --- Yes.

When you were throwing up into the bucket that he was holding, he was sitting on that seat by the bed, wasn't he? --- No.

Where do you say he was? --- He was sitting on the bed.

You say he was sitting on the bed, do you? --- Yes.

Are you sure about that? --- Yes.

He was rubbing your stomach and your evidence was, wasn't it, he was rubbing your stomach but his hand wasn't underneath your underpants? --- Yes.

It was over the top of your underpants? --- Yes.

Are you sure about that ? --- Yes .

...

I am going to read a question and answer to you [from the committal] and I am going to ask you whether you were asked that question and whether you gave that answer. In fact, I might ask a number of questions. 'You were wearing some underpants and some pyjama pants; is that right?' Answer: 'Yes.' 'When your grandfather was rubbing your tummy you put his hands kind of underneath the elastic of your pyjama pants and your underpants; is that right?' Answer: 'Yes.' 'He was rubbing away at your stomach. Did that make you feel any better?' 'Yes.' Were you asked those questions and did you give those answers? --- Yes.

You put his hand on your stomach, didn't you? --- Yes.

And you put his hand on your stomach underneath the top of your tracksuit - sorry, pyjama pants and the top part of your underpants, didn't you? --- Yes.

Because he was helping you, wasn't he? --- Yes.

...

I am going to read another question to you. This is at p. 22 line 8 [of the depositions], Your Honour. This question was asked: 'Do you know what the word 'penetrate' means? ' Answer: 'Is that putting pressure on or - no, I'm not sure. ' Another question: 'What about 'insert'; do you know what it means to insert something? ' Answer: ' Yes." Question: ' Did your grandfather insert his fingers into your vagina at all? Answer: ' No.' Were you asked those questions and did you give those answers? --- Yes.

You understood the question, didn't you? - Yes.

You understood that you were being asked if he put his fingers into your vagina, didn't you? --- Yes.

And you agreed then and do you agree now that he didn't put his fingers into your vagina? --- Yes."

41 In re-examination, the prosecutor was permitted, over objection, to put to the complainant further passages from the complainant's evidence at the committal, ostensibly by way of clarification of the evidence she had given about those passages to which she had been taken in cross examination. But in the end the evidence did not go much further (although the prosecutor attached great weight to these answers in her closing address):

"[Prosecutor]: Could I please ask whether you also recall earlier on when you were asked questions at the committal hearing, and this is when you were being cross-examined, were these question asked and did you give these answers (p.14, line 25, your Honour): 'But if you can just tell the court where exactly your grandfather was touching you?' Answer: 'In my vagina.' Was that question asked and did you give that answer? --- Yes.

'When you say 'in', do you mean your grandfather actually put his fingers inside your vagina?' Answer: 'Sort of like around but it was, it was like he was trying to get in but he couldn't.' Question: 'So it was around but not inside; is that right?' Answer: 'Yes.' Question: 'So he didn't actually put his fingers all the way inside your vagina; is that right?' Answer: 'Yes.' Question: 'So it was on the outside, is that yes?' Answer: 'Yes'.

Were those questions asked and did you give those answers at the committal hearing?---Yes.

You have said today that you don't quite know how to express all the terms of your body; is that right? --- Yes.

Could I ask you, and it might be embarrassing, but could I ask you, at that time did you have pubic hair? --- Yes.

Did you have pubic hair around your vagina - the vaginal area on the outside near there between your legs?---Yes.

Are you able to say when your grandfather touched you where his fingers were in relation to that pubic hair? --- (No answer.)

HER HONOUR: Kirsty, are you able to answer the question? --- Can you please repeat it.

[Prosecutor]: All right. In relation to the pubic hair in the area of your vagina, can you say where in relation to the pubic hair in the area of your vagina your grandfather's finger went? --- It was in between, like - - -

Just take your time, in between the what? --- In between the outside of the hair sort of thing. Oh - - -

HER HONOUR: Would you like to take a short break now, Kirsty? --- No.

[Prosecutor]: When you say in between the outside, what do you mean by that ? --- I mean there's pubic hair on each side and it wasn't on either side, it was in the middle.

Are you able to way what motion, if any, his fingers were making? ---Like a circle.

How were you able to say that they were like a circle, how do you know that ? --- Because his finger were moving around.

Is that something you saw or how do you know that? --- I felt it."

42 In M v The Queen[23], the majority of the High Court held that where a court of criminal appeal is asked to conclude that a verdict is unsafe or unsatisfactory, the court must ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Another way of looking at the matter is to pose the question whether the jury were bound to have a reasonable doubt as to the guilt of the accused.

43 The function of this Court is therefore to determine whether the jury, acting reasonably and appreciating the burden and standard of proof, could have reached the view beyond reasonable doubt that the applicant was guilty of the offence of incest which was charged.[24] Needless to say, the appeal court must pay full regard to the fact that the jury has had the benefit of seeing and hearing the witnesses. If that advantage is capable of resolving doubt, the appeal court may conclude that no miscarriage of justice occurred. But if the appeal court experiences a doubt as to the guilt of the accused, it should ordinarily be treated as a doubt which the jury ought also to have experienced.[25]

44 The high point of the complainant's evidence-in-chief was her testimony that, when the applicant was rubbing her stomach, he "put his hand down my pants and put his fingers inside my vagina". As has been seen, however, she directly contradicted this evidence by confirming in cross-examination that she had agreed at the committal - and agreed now (scil. in the witness box at trial) - that "he didn't put his fingers into [her] vagina". As matters stood at the end of the cross-examination, therefore, the jury could not reasonably have been satisfied beyond reasonable doubt of the accuracy of the evidence of penetration given in chief.

45 The object of the re-examination was evidently to clarify the position. We assume, putting the Crown case at its highest, that the complainant's answers at the committal were properly before the jury and had been adopted as true (as to which, see below). The furthest these answers went against the applicant was that there was pubic hair "in the area" of the complainant's vagina "on each side"; and that the applicant's finger had gone "in between the outside of the hair sort of thing". The statement that "it wasn't on either side, it was in the middle" is not inconsistent with penetration of the labia majora. But it is equivocal. It cannot be assumed beyond reasonable doubt that the pubic hair of which the complainant spoke was lower down her body than the top of her vulva. Indeed, there is some indication to the contrary (and, on one possible view of the matter, further evidence in favour of the applicant) in the complainant's statement that the applicant's finger had gone "in between the outside of the hair sort of thing".

46 Consequently, on the evidence which was adduced, we do experience a doubt as to the guilt of the accused, and it seems to us that it should be treated as a doubt which the jury ought to have experienced. In our view, the evidence to which we have referred was insufficient to establish any degree of penetration beyond reasonable doubt. Despite such advantages as the jury had in assessing the demeanour of the witnesses and observing the atmospherics of the trial, we consider that the jury, acting reasonably and appreciating the burden and standard of proof, could not have reached the view beyond reasonable doubt that the applicant was guilty of incest.

Ground 2

The learned trial Judge erred by allowing the prosecutor to re-examine the complainant by putting to her evidence that she had given in an earlier committal hearing.

47 We have already referred, in the course of dealing with Ground 8, to the prosecutor's re-examination of the complainant. This followed her agreement in cross-examination that her grandfather had not put his fingers into her vagina. When the prosecutor sought to re-examine the complainant about other parts of her testimony at the committal, defence counsel objected. Counsel submitted that the prosecutor was not entitled to re-examine on other parts of the witness's prior testimony which amounted to a prior consistent statement and which did not constitute clarification of the answers which had been put to her in cross-examination at the trial ("the relevant committal answers"). The prosecutor justified the proposed re-examination on the basis that it was necessary in order to clarify the relevant committal answers. The learned trial Judge allowed the re-examination on that ground.

48 The basic rule is that re-examination is confined to matters arising out of cross-examination. It is not, however, confined to the clearing up of ambiguities that have arisen in the course of cross-examination, but extends to answers given in cross-examination which, if left unexplained, may not constitute the whole truth or would leave the tribunal of fact with a distorted or incomplete account, to the disadvantage of the side which called the witness.[26] Similarly, a witness who has been cross-examined as to part of an out-of-court statement made by him or her may be re-examined as to other parts of the statement where that is necessary to explain or qualify those parts of the statement which have been introduced into evidence.[27] Because of the general rule that statements made by a witness out of court and of a self-serving nature are inadmissible, care is called for when a prior consistent statement is proposed to be introduced in re-examination.

49 In the present case, the re-examination covered a number of answers which immediately preceded the relevant committal answers. We doubt that the introduction of those questions or answers was justified on the basis of explaining away or clarifying the relevant committal answers, but little turned upon the content of those further questions and answers. Of greater significance was the introduction of questions and answers from an earlier stage in the complainant's evidence at the committal, to which we have referred in dealing with Ground 8. Those answers did not clarify or explain away the relevant committal answers. Instead, they provided a more detailed description of what the complainant alleged the applicant had done to her, and gave rise to further evidence from the complainant upon which the prosecution relied heavily in closing address.

50 In our view, the prosecution should not have been permitted to re-examine on these additional answers. The mere fact that the complainant had dealt, at different points in her committal evidence, with matters the subject of the cross-examination did not entitle the prosecutor to take the complainant to each of those passages. The effect of what occurred was that the re-examination was used solely to elicit information which should have been elicited in examination-in-chief. This is fundamentally wrong. Moreover, it breached the principle that a witness's prior consistent statements are not to be introduced into evidence save in well-defined circumstances. The additional answers did not clarify or explain the relevant committal answers, and the nature of the cross-examination did not justify the introduction of those passages on any other basis.

51 A further point needs to be made. The complainant in re-examination agreed that she had given the relevant answers at the committal, but she was not asked whether the answers were true. Indeed, none of the testimony given by the complainant at the committal proceedings, upon which the prosecution relied at the trial, was adopted by the complainant as true before the jury.

52 In support of Grounds 2 and 8 it was submitted for the applicant that the trial Judge wrongly treated the complainant's answers at the committal as evidence before the jury. While no complaint could be made about the directions which the trial judge gave the jury in relation to how they should approach prior statements of the witness, both counsel and the learned trial Judge fell into error in treating the complainant's answers at the committal as having been adopted and - hence - as being part of the evidence upon which the jury could act. Not having been adopted, her answers at the committal could be used only as bearing upon her credibility. The jury should have been so directed.

53 Given the view we have reached in relation to Grounds 8 and 9, it is unnecessary to consider the consequences of these irregularities.

Ground 6

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

Ground 7

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

54 These grounds concern the obligation of a trial judge to direct a jury as to the relevant law and the relevant evidence. In any given trial, the scope of the direction on these topics will be defined - and limited - by the trial Judge's identification of the matters in issue.

55 Axiomatically, it is the responsibility of the trial Judge in every jury trial -

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

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

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

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

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

56 These propositions are of long-standing and of high authority. They have often been repeated in this Court.[28] If adhered to, they should serve to simplify, rather than complicate, the task of the trial Judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.

57 In the present case, there were two real issues - penetration and intention. It was the obligation of the trial Judge to explain the law, and summarise the evidence, so far as relevant to those issues. It was both necessary and sufficient for her to have done so.

58 As to penetration, the fact in issue was whether there had been any penetration at all of the complainant's genitalia. In order for the jury to be able to decide that question, it was critically important that they have the legal meaning of "vagina" explained to them. It was only after exception was taken that her Honour instructed the jury in accordance with s.35(1) of the Act that the word "vagina" is defined to include "the external genitalia".

59 In the circumstances of the case, however, this was not sufficient. The phrase "external genitalia" is not in ordinary usage. It could not be assumed that every member of the jury would readily understand what the phrase connoted. In our view, it was essential - given the contest over what had actually occurred - that the Judge be quite explicit in explaining to the jury the distinction -

"between penetration of the vulva, as denoted by the labia majora, or outer lips, and penetration of the vagina itself."[29]

This distinction was drawn as long ago as 1844, in a direction by Parke B which has been cited ever since in textbooks and judgments dealing with the physical requirements of rape.[30] In the present case, the prosecution had called a medical practitioner who had given evidence about the anatomy of the female genitalia. That evidence ought to have been referred to.

60 The learned trial Judge ought then to have informed the jury, in precise and simple terms, what would constitute penetration of the outer lips of the vagina, and to have summarised the evidence as it related to that issue. We have referred earlier to the different parts of the complainant's evidence on this topic. In the circumstances of the case, it was essential that the jury be reminded of each part of that evidence and of how it related to the issue of penetration.

61 It follows, in our opinion, that both of these grounds are made out. Standing alone, these deficiencies in directing as to the law and the evidence constituted an irregularity in the trial amounting to a miscarriage of justice within the third limb of s.568(1) of the Act.

Ground 5

The learned trial Judge erred by admitting the evidence of the complaint made by the complainant to her mother after the commission of the offence.

Ground 5A

The learned Judge erred in her directions to the jury as to the evidence of the complainant led against the applicant.

62 Counsel for the applicant submitted, in reliance upon the decision in R v Freeman,[31] that the complaint should not have been admitted into evidence. It was not - he argued - "spontaneous" or an "unvarnished narrative" but was the complainant's response to a leading question from her mother.[32]

63 The complainant in her evidence-in-chief said that she had told her mother that her grandfather had "touched me under my knickers" but had said nothing else about the touching. The complainant's mother, however, said that the complainant had agreed with her that the applicant had put his finger in her vagina. The mother was not challenged on that evidence.

64 The question must always be whether the complaint, in the circumstances in which it was uttered, points to the consistency of the complainant's claim. The evidence is not admitted as evidence of facts in issue but as evidence of consistency, which buttresses the credit of the complaint.[33] As the Full Court said in Freeman:

"Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another, and the attempt which appears to have been made in Osborne's Case to provide guidance to a trial Judge of a rule of thumb nature when deciding whether evidence of a complaint should or should not be admitted, may in some cases prove misleading."[34]

65 No objection was taken at the trial to any of the evidence of the complaint. Even had such objection been made, we think it would have been incorrect to have excluded the evidence. The circumstances in which the complaint emerged are not dissimilar to those in Freeman.[35] The complaint was made at the first reasonable opportunity. It involved the expression of "a grievance or accusation" relating to conduct of a sexual nature, as discussed in R v Saragozza.[36] It may well be that defence counsel at trial was content to have that part of the complaint introduced into evidence, in view of its inconsistency with the complainant's own evidence that the applicant did not insert his fingers into her vagina. [37]

66 The primary submission advanced in support of this ground was that the learned trial Judge should have instructed the jury to disregard the mother's evidence of the complaint because of the manner in which it had been elicited. It was said that such a direction was in the circumstances necessary to avoid a perceptible risk of a miscarriage of justice. Reliance was placed upon Rv Miletic.[38]

67 Obviously enough, the importance of evidence of complaint will vary from one case to another. In the present case, the applicant did not seek to challenge the complainant's testimony that he had touched her in the area of her vagina. The complainant herself confirmed her committal evidence that the applicant had not placed his finger in her vagina. No exception was taken to Her Honour's direction.

68 In the circumstances, no direction on the manner of elicitation was called for. The complaint grounds are not made out.

Ground 4

The learned trial Judge erred by failing to give a direction in accordance with Edwards v R[39] with respect to the evidence of the applicant having contacted or attempted to contact the complainant's mother after the commission of the offence, in light of the prosecutor's allegation that such behaviour demonstrated the applicant's consciousness of his own guilt.

69 The applicant was briefly cross-examined about his conduct in making contact with the complainant's mother on the morning after the complainant had left his house. Neither party addressed the jury on the basis that such evidence would be of assistance in the resolution of any issue in the trial. Those facts were not referred to in the prosecutor's closing address. No suggestion was made by either party prior to, or after, those addresses that the learned trial Judge should give a direction in accordance with Edwards v R.

70 There may be occasions when such a direction may be called for even though the prosecution disavows any intention to rely upon consciousness of guilt and the defence does not seek such a direction, but this was not such a case. Ground 4 is without substance.

New trial

71 Counsel for the applicant submitted that, if the application were upheld on Ground 8 (which is to say that the verdict was against the evidence and the weight of the evidence) but not upheld on Ground 9 (which it is to say that the judge erred in failing to direct the jury on the element of intent in the offence of incest), it would be open to this Court to allow the appeal, quash the incest conviction and substitute a verdict of guilty of the lesser offence of indecent act with a child under the age of 16.[40]

72 For the reasons given, however, we consider that both Grounds 8 and 9 are made out. Despite the obvious desirability of bringing this matter to an end, in particular so as to avoid subjecting the complainant - and the applicant - to the rigours of another trial, this is not a case where it would be appropriate to substitute a conviction for the lesser offence. As the decision of the High Court in Spies v The Queen[41] shows, where the ground for setting aside a conviction is failure to direct on an issue in the trial, a verdict is not to be substituted unless it can be seen that the jury must have been satisfied, in a fashion unaffected by the non-direction, of the facts constituting the lesser offence.[42]

73 In the present case, we are unable to conclude that the jury "must have been satisfied" of the facts constituting the lesser offence. Intent was an essential element of the lesser, as of the greater. Given that the jury was not instructed that intent had to be proved on the incest change, their conclusion on that charge gives no assurance as to what conclusion they would have reached on intention as an element of the lesser charge.

74 Accordingly, we would allow the application for leave to appeal and treat the appeal as having been initiated and heard instanter. The conviction the subject of appeal should be quashed and there should be an order for a new trial to be had.

[1] cf. s.38 (rape) where intent is expressly referred to.

[2] (1889) 23 QBD 168.

[3] [1935] UKHL 1; [1935] AC 462.

[4] [1963] AC 386.

[5] Ibid at 407.

[6] [1937] HCA 83; (1937) 59 CLR 279 at 309.

[7] [1967] HCA 2; (1967) 121 CLR 205 at 216.

[8] [1906] HCA 47; (1906) 4 CLR 232 at 237.

[9] R v O'Connor per Mason, J. at 108; The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30.

[10] Ryan v R [1967] HCA 2; (1967) 121 CLR 205 at 216-7, 231, 235 and 244-246; R v O'Connor [1980] HCA 17; (1980) 146 CLR 64 per Barwick, C.J. at 76-79 and per Stephen, J. at 97.

[11] R v Turnbull (1943) 44 SR NSW 108 per Jordan, C.J.; R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 per Dixon, C.J. at 387, per Kitto, J. at 389, per Taylor, J. at 392, per Menzies, J. at 401 and per Owen, J. at 408; Director of Public Prosecutions v Morgan [1975] UKHL 3; [1976] AC 182 per Lord Simon at 218; Hawkins v R [1994] HCA 28; (1994) 179 CLR 500.

[12] (1985) 156 CLR 523 at 582.

[13] See Smith, J.C. (2002)(10th ed.) Smith & Hogan c_riminal law_, Butterworths, London at 38 Footnote 1; Kenny, Courtney Stanhope (1966)(19th ed.) Kenny's Outlines of criminal law, Cambridge University Press, Cambridge at 23; R v Haywood [1971] VicRp 93; 1971 VR 755 at 758 per Crockett, J.; Coleman v R (1990) 19 NSWLR 467; (1990) 47 A Crim R 306; R v Kane (2001) 3 VR 542; [2001] VSCA 153 at [77]; Williams, Glanville (1961)(2nd ed.) Criminal Law, Stevens & Sons, London at 2 and 8.

[14] [2004] HCA 47; (2004) 219 CLR 43 at 50.

[15] [1988] HCA 6; (1988) 164 CLR 365 at 372-373.

[16] Mraz v R [1955] HCA 59; (1955) 93 CLR 493; Andrews v R [1968] HCA 84; (1968) 126 CLR 198; R v Storey [1978] HCA 39; (1978) 140 CLR 364; Driscoll v R [1977] HCA 43; (1977) 137 CLR 517; Wilde v R Footnote 19; Glennon v R [1994] HCA 7; (1994) 179 CLR 1; Krakouer v R [1998] HCA 43; (1998) 194 CLR 202 and Festa v R [2001] HCA 72; (2001) 208 CLR 593; TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 at [62-73]; R v Taylor [2004] VSCA 189; (2004) 10 VR 199; (2004) 149 A Crim R 399 at [23] per Nettle, J.A.

[17] [1998] HCA 43; (1998) 194 CLR 202 at 212.

[18] Ibid at 226 [74 - 75].

[19] cf. Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198 at 208-9.

[20] [1999] VSCA 145; [1999] 3 VR 355.

[21] at [2].

[22] (1983) 34 SASR 355 at 359.

[23] [1994] HCA 63; (1994) 181 CLR 487 at 493-4.

[24] cf. M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 501-502 per Brennan, J.

[25] (1991) 191 CLR 439 at 468 per Kirby, J cf. MFA v the Queen [2002] HCA 53; (2002) 213 CLR 606 at 615 [26], per Gleeson, C.J. and Hayne and Callinan, JJ.

[26] R v Nation [1954] SASR 189; R v Clune (No.1) [1975] VicRp 72; [1975] VR 723 at 734; R v Lavery (No. 2) (1979) 20 SASR 430; R v Szach (1980) 23 SASR 504 per Wells, J. at 517-518 and per King, C.J. at 568; Heydon, J.D. (2004)(7th Australian ed.) Cross on Evidence, LexisNexis Butterworths, Sydney at [10.63]; Wells, W.A.N. (1991)(4th ed.), An Introduction to the law of evidence: for police officers, Government Printers, Adelaide at 179.

[27] Wentworth v Rogers (No.10) (1987) 8 NSWLR 398 at 409; R v Ambrosi (2004) 144 A Crim R 67; [2004] NSWCCA 23.

[28] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466; R v Wilkes & Briant [1965] VicRp 64; [1965] VR 475; R v Jellard [1970] VicRp 98; [1970] VR 802; Bellizia v Meares [1971] VicRp 78; [1971] VR 641 at 644-5; R v Anderson [1996] VICSC 17; [1996] 2 VR 663 at 666-7; R v Franks (No.1) [1998] VSCA 100; [1999] 1 VR 518 at 524-5; R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408 at 416-7; R v Dardovska [2003] VSCA 4; (2003) 6 VR 628 at 633; R v Taylor [2004] VSCA 189; (2004) 149 A Crim R 399 at [23]; R ; at .

[29] Randall v R (1991) 53 A Crim R 380 at 382.

[30] Ibid.

[31] [1980] VicRp 1; (1980) VR 1.

[32] Ibid at 4-5.

[33] Kilby v R [1973] HCA 30; (1973) 129 CLR 460 at 472; M v R [1994] HCA 63; (1994) 181 CLR 487 at 514-515; Suresh v R [1998] HCA 23; (1998) 153 ALR 145; (1998) 72 ALJR 769 at 770.

[34] [1980] VicRp 1; [1980] VR 1 at 5.

[35] Ibid at 2 and 7.

[36] [1984] VicRp 15; (1984) VR 187 at 198-199.

[37] See The Queen v Munro [2005] VSCA 260

[38] [1997] 1 VR 593 at 605.

[39] [1993] HCA 63; (1993) 178 CLR 193.

[40] Crimes Act 1958, s.47.

[41] [2000] HCA 43; (2000) 201 CLR 603 at 618-621 [43]- [48].

[42] It is not permissible to substitute a verdict of guilty of a more serious offence. See the analysis of Callaway, J.A. in R v Cervelli [1998] 3 VR 776 at 789, which was approved by the High Court in Spies v R [2000] HCA 43; (2000) 201 CLR 603 at 613 [26].