R v ALP [2002] VSCA 210

Charge to jury - Presumption of innocence - Use of evidence concerning uncharged sexual acts - Verdicts not unsafe or unsatisfactory.

Sentence - Events occurring since sentencing - Health of appellant since sentencing - Total effective sentence of 6 years, with non-parole period of 30 months, not manifestly excessive.

2. In my opinion, the applications for leave to appeal against conviction and sentence should be dismissed for the reasons given by Eames, JJ.A.

7. These are applications for leave to appeal against convictions by a jury and sentences imposed by a judge of the County Court on 23 March 2001. The applicant had been found guilty of three counts of incest, one count of attempting to carnally know and abuse a girl under the age of 10 years, one count of attempted buggery, and ten counts of indecent assault. The offences took place between 1 January 1961 and 31 December 1966 at Reservoir and Kinglake. The offences were committed against four of the applicant's daughters, at a time when he was aged between 38 and 43 years. He is now 78 years of age.

10. At the time these offences were committed the offence of incest (contrary to s.52(1) of the Crimes Act 1958) carried a maximum penalty of 20 years' imprisonment; the offence of attempting to carnally know a girl under the age of 10 years (contrary to s.47 of the Act) carried a maximum of 10 years' imprisonment; attempted buggery (contrary to s.68(3) of the Act) carried a maximum of 10 years' imprisonment; indecent assault (contrary to s.55(1) of the Act) carried a maximum of three years' imprisonment.

13. The jury had returned verdicts of not guilty on counts 3 and 12 on the presentment, and at the conclusion of the Crown case the learned trial judge had directed the jury to acquit the applicant on count 15. Count 12 was the only count which concerned a fifth daughter, "C".

16. On 23 March 2001 the judge sentenced the applicant as follows:

Count 13 (Indecent Assault) 12 months' imprisonment

36. Pursuant to s.6E of the Sentencing Act 1991 the judge ordered that the sentences imposed on counts 13 and 14 be served concurrently with each other; that three months of the sentence imposed on count 11 be served cumulatively with the sentence on count 10; that the sentence imposed on count 9 be served concurrently with the sentence on count 10; that six months of the sentence imposed on count 6 be served cumulatively with the sentence on count 5; that one year of the sentence imposed on count 7 be served cumulatively with the sentences on counts 5 and 6; that two years of the sentence imposed on count 8 be served cumulatively with the sentences on counts 5, 6 and 7; that one year of the sentence imposed on count 4 be served cumulatively with the sentence on count 2; that one year of the sentence imposed on count 1 be served cumulatively with the sentences on counts 2 and 4; that six months of the sentence imposed on counts 5, 6, 7 and 8 be served cumulatively with the total sentences on counts 1, 2 and 4; that three months of the sentences imposed on each of counts 9, 10 and 11 be served cumulatively with the sentences on counts 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11.

39. The total effective sentence was six years' imprisonment, with a non-parole period of 30 months. Her Honour declared that the applicant was sentenced in respect of counts 2, 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14 as a serious sexual offender, and she declared, pursuant to s.18(4) of the Sentencing Act 1991, that sixteen days pre-sentence detention should be reckoned as already served. Her Honour also made an order for the taking of an intimate sample, pursuant to s.464ZF of the Crimes Act 1958.

42. On 26 April 2001 the applicant filed applications for leave to appeal against conviction and sentence, identifying a single ground for the appeal against conviction, namely, that the verdict was unsafe and unsatisfactory, and a single ground for the application for leave to appeal against sentence, namely, that the sentence was manifestly excessive.

45. On 19 November 2002 the applicant filed an application for leave to amend his grounds of appeal against conviction. The following ten grounds were identified, the last of which, in substance, replaced the original single ground of appeal. The proposed new grounds are as follows:[1]

1. That the learned Trial Judge erred in law by refusing to grant a permanent stay of proceedings.

2. That the learned Trial Judge erred in law in refusing to grant separate trials of the counts involving the various complainants.

3. That the learned Trial Judge erred in law by allowing the prosecutor to cross-examine the witness "V" (the applicant's wife) on the contents of a letter sent by her to the complainant "J".

4. That the learned Trial Judge erred in law by making comment in the course of her charge about the failure of defence counsel to put matters to the complainant ("J") which were later raised in the re-examination of the witness "V" (the applicant's wife).

5. That the learned Trial Judge erred in law by effectively negating defence counsel's comment on the failure of the Prosecution to call two other children of the Applicant, (son "J") and (daughter "E"), in that she stated that it was equally open to the defence to have called them.

6. That the verdict of the jury on Count Three on the presentment meant that the verdicts on the other counts reliant upon the evidence of the complainant ("J") were inconsistent.

7. That the learned Trial Judge erred in law by failing to give the jury proper or sufficient directions on the presumption of innocence.

8. That the learned Trial Judge erred in law by combining her directions to the jury about the use to be made of the evidence of one complainant with her directions about the use that could be made of the evidence of uncharged acts.

9. That the learned trial Judge erred in law by referring to an incident described by the complainant "V" as an example of an uncharged act, when in fact it was a reference to an incident which was the subject of a count on the presentment of which the Applicant had already been acquitted by direction.

10. That in all the circumstances the Applicant was denied a fair trial, and the verdicts were therefore unsafe and unsatisfactory.

58. The application for leave to amend the grounds of appeal was supported by two affidavits from the applicant's solicitor in which he deposed that although he had received advice from counsel who represented the applicant at trial that he had good grounds for an application for leave to appeal against both conviction and sentence, the solicitor was unable to locate his client within the prison system because he was being constantly moved from one place of detention to another.

61. On 26 April 2001 the applicant signed the original application for leave to appeal (which raised the single grounds of appeal against conviction and sentence) but that document was not received within the required time by the Registrar of the Court of Appeal and accordingly on 10 May 2001 an application was filed seeking an extension of time in which to lodge an appeal application.

64. The very late application to introduce a substantial number of additional grounds of appeal requires the exercise of a judicial discretion by the Court. Such a late application should not be readily granted. One important consideration would be whether the new grounds appear to have sufficient prospects of success for the Court either to grant leave to amend the grounds or else to permit full argument on the new grounds whilst reserving the decision whether to grant leave to amend the grounds.[2]

67. The Court will generally discountenance late applications for leave to add new substantive grounds (as opposed to the correction of some inadequacy or infelicity of expression) on behalf of applicants who had had legal representation for some time and ample earlier opportunity to have addressed the adequacy of the grounds first filed. As Batt, J.A. observed in R. v. Haseloff[3], late applications for amendment cause substantial difficulties for the Crown in preparation for the appeal hearing and also impose unnecessary burdens both on the judges and on the staff of the judges as well as on the Registrar and the staff of the Registry. The late filing of additional grounds may also preclude the opportunity for obtaining a further report from the trial judge.

70. In this case the Court resolved that it would hear argument on the proposed grounds and reserve its decision as to whether leave should be granted to add the additional grounds.

73. Before dealing with the grounds of appeal it is necessary to set out the facts of the case in some detail. The counts on the presentment were not listed in chronological sequence but were grouped so as to deal, in turn, with offences against each complainant.

76. The first four counts on the presentment involved the daughter "J", who was born in 1949 and was the second eldest of the applicant's eight children. Count 1 alleged an indecent assault committed against "J" between 1 January 1961 and 31 December 1961. "J" told the jury that in 1961 when she was aged 12 the family were living in Reservoir and at that time her father worked in the Post Office and her mother worked casually at a nearby milk bar in the evening. She said that whilst her mother was absent at work her father would look after the children and she said that her father was usually at home in the evening. As to count 1, she said that whilst present with her father in the parental bedroom she observed him handle a white object which appeared to be a type of plunger. Upon asking him what it was the applicant leaned her across the bed, pulled down her underwear and inserted the object into her vagina causing her a burning pain. She said he pushed it in as far as he could then removed it and she was shocked by his action. About an hour later her mother came home, but "J" said nothing to her mother.

79. Soon after the first offence "J" said that the family moved to Kinglake, where they resided in a miner's cottage on a property of a few acres. Count 2 was alleged to have occurred between 22 August 1961 and 22 August 1962. There were also other buildings on the property. The children lived in the house and the parents lived in a bungalow nearby. She said that count 2 occurred shortly after her thirteenth birthday and arose in her own bedroom. Her father entered the room, took off her underwear, and pushed his penis into her vagina. She screamed and passed out. When she came to, her father told her he was sorry and that he was getting her ready for her period. She said that during this time her brothers and sisters were outside playing, and her mother was at work. At that time her mother worked at Janefield Training Centre. Her father swore her to secrecy and said it would kill her mother if "J" reported what had occurred.

82. On count 3 the jury entered a verdict of not guilty, but it is relevant to briefly mention the circumstances alleged by the Crown, as they are relevant to one of the grounds of appeal. "J" told the jury that shortly after the offence or the events constituted by count 2 the family had relocated to a different house on the same property. "J" said that she and her sisters used to play in the miner's cottage and occasionally slept there overnight. On one evening her father came into the cottage whilst "J" was in a double bed. Also in the bed with her was her sister "V". "J" said that her father crawled up under the blankets, pulled down her underwear and had oral sex with her. He put his mouth and tongue in her vagina, and did so for about ten minutes. She was horrified by these events, but her father told her that he was preparing her for boys and he laughed. He told her not to tell anyone. Count 3 was alleged to have occurred between 1 June 1962 and 22 August 1964.

85. "J" said the events involving count 4 occurred in the months prior to her fourteenth birthday. The presentment stipulates that the offence to which count 4 relates was committed at Kinglake between 1 January 1963 and 31 December 1963. "J" said the family had returned to living in the miner's cottage and the parents were sleeping in the bungalow which was detached from the house. One afternoon whilst "J" was in her bedroom (which was divided from the lounge room by a curtain) her father entered the room, grabbed hold of her by the back of the neck and pushed her down on the bed, with her back to him. He pulled down her underwear and put his penis into her vagina and subsequently removed it to ejaculate. When this occurred he was wearing his taxi driver's uniform.

88. Counts 5, 6, 7 and 8 all related to the daughter "V", who was born in 1951 and was the third eldest in the family. She said when she was aged 11 years the family moved to a house in Kinglake (which was not the same property at Kinglake on which the miner's cottage was located). At this time her mother was working part time on night shift at Janefield Training Centre and her father was working as a taxi driver. On occasions her father would look after the children when her mother was working in the evenings and on other occasions the child "J" would take that responsibility to look after the children. "V" told the jury that on a few occasions when she had gone to the toilet during the night her father would grab her and ask her to go and look for something in his bungalow. This was usually when "V's" mother was not present.

91. Count 5 was alleged to have occurred at Kinglake between 1 January 1962 and 31 December 1962. "V" said the events involving count 5 were the first occasion that she could recall when he asked her to look for a shirt "or something". Her father told her to sit on the bed, then to lie down. He started to bite and lick her feet and continued to lick her up her body and on her breasts and vagina. She said he was rubbing something hard against her, which scared her, and she started to get upset and cried, whereupon her father told her to get up and get dressed and to go. He told her to take some money from a pocket of his shirt and not to tell anyone. He said that if she did tell anyone something would happen to the kids or to her mother. She said she was 11 years old at this time.

94. "V" said that similar conduct occurred on several occasions and count 6 represented one such occasion which occurred a couple of days after count 5, at a time when her mother was not at home. The conduct was identical to count 5. The count alleged that an indecent assault occurred between 1 June 1962 and 1 June 1963, but expressly alleged that it occurred "on an occasion other than that referred to in count 5". "V" told the jury that a few days after the events of count 6 her father repeated the activity but this time used an instrument which he took from a drawer beside the bed and which instrument was about 10 inches to a foot long. Her father opened her legs and inserted the object into her vagina. She was scared, and "froze". She did not tell anyone what had occurred. This event was the subject of count 7, which alleged that the indecent assault occurred between 1 June 1962 and 1 June 1963. "V" said that she was aged about 11 years when her father first licked her vagina, and happened a few weeks after the family moved to Kinglake and occurred at a time when her mother was at work, she thought at Janefield Training Centre. Her father was driving taxis.

97. "V" said that one afternoon a few days or weeks after the events of count 7, and at a time when she was aged between 11 and 12, she was playing outside, by herself. At this time the family had moved to the second house on the property and her father was doing some renovations and asked her to come and look at something. Her father told her to go into the bedroom and to lie on the floor on what was a rag or a blanket. He took her pants off, spread her legs and lay on top of her. She was scared and he told her to keep quiet. He then attempted to put his penis into her vagina but she started to cry and said it was hurting her. Her father put his hand over her mouth and told her to be quiet, that he would not be long and not to be "a sook". He kept pushing and she felt a lot of pain and then suddenly felt wet, and her father stopped. He threw something to her, told her to clean herself up and turned away. She noticed that he had blood on his penis and that her vagina was bleeding. Her father left the room. At this time her brothers and sisters were playing outside but she was too scared to tell anyone. She said her elder brother "J" was not living in the house at that time. Count 8 alleged an offence of carnal knowledge had occurred between 5 May 1963 and 5 May 1964.

100. The next batch of offences, counts 9, 10 and 11, involved the daughter "G". "G" was born in 1952 and was the fourth eldest in the family. She told the jury that she was about 7 or 8 years old when they were living in East Reservoir. Her mother was working at a takeaway food shop nearby during the afternoons and on some evenings. Her father worked for the Post Office. She recalled one occasion which formed the subject of counts 9 and 10. Counts 9 and 10 allege respectively indecent assault and attempted buggery, both offences occurring between 1 September 1960 and 31 May 1961.

103. "G" said she was playing outside in the garden with her brothers and sisters, at a time when she was aged about 8 or 9. Her father asked her to get a cardigan from the bedroom. She went into the bedroom and her father followed her and closed the door. He then lay on the bed naked and asked her to touch his erect penis and, in effect, to masturbate him. She did so and then he told her to stop and lie on the bed face down. Her father attempted to put his penis into her anus. She tensed up and he yelled at her and threw her out in the hallway.

106. Count 11 alleged an indecent assault on "G" occurring between 1 June 1965 and 31 December 1966. "G" said count 11 occurred a couple of years after the events of counts 9 and 10, and when she was aged about 10. "G" said that the family moved to Kinglake to the "Finn" house. At this time her mother was working at the Janefield Training Centre and her father was a taxi driver. Her mother would often not get home until late at night and she sometimes worked night shifts. "G" said the events of count 11 occurred at a time when all of the family members were sick. She had got up in the morning and told her mother that she was feeling sick. Her mother had to go to work. "G" sat at the table for a few minutes, then as she was going back to her bedroom she saw her father standing in the kitchen and he told her to come with him into his bedroom. They lay on the bed and her father asked where she was feeling sick. She said in her stomach, and he started to rub it, moving his hands to her breasts and groin and touching her pubic hair. She said her father's hands were under her nightie. She started to vomit and her father told her to get out. She went back to her bedroom and shut the door.

109. Count 12 was the only count that involved the daughter "C", and the jury returned a verdict of "not guilty". I set out the evidence only because it may have continuing relevance to one or more of the grounds of appeal. Count 12 alleged an indecent assault against "C" occurring between 19 August 1961 and 19 August 1963. "C" was born in 1954. "C" told the jury that she was in grade 2 when the family moved to Kinglake. When she was in about grade 3 or 4 her mother started to work at Janefield Training Centre and sometimes her mother stayed at Janefield after completing work because she was too tired to come home. "C" said that the offence against her occurred on a day when she was home from school because of stomach pains. Her father was working on a car and asked her why she was home. When she told him that she was ill, he said he had better have a look. She went with him to the bungalow where he pushed her onto the bed and started to push on her stomach. She was scared and crying. This continued for a while and then her father got some ointment which he rubbed on to her stomach and then started to rub further down to the tops of her legs and her pelvis. She said her father did not touch her vagina but was around that area. She was crying and frightened and then he rubbed some of the ointment onto himself. She felt something hot near her and she heard her father panting. Then she heard her sister calling and her father stopped what he was doing.

112. Counts 13, 14 and 15 all related to the daughter "L". Counts 13 and 14 were alleged to have both occurred between 1 January 1965 and 31 December 1965, count 13 being an offence of indecent assault and count 14 attempted carnal knowledge. "L" was born in 1956 and was the second youngest child. She said that when she was aged between 8 and 9 years the family were living at Kinglake. She recalled her father used to ask her to pick out his taxi driver's uniform and to lay it on his bed for him to wear. On one occasion which was the subject of counts 13 and 14, and at a time when she was about 9 years of age, she was getting out her father's clothes when he asked her to lie on the bed and to spread her legs. She was on her hands and knees. He locked the door to the bungalow and asked her to take off her clothes. She felt his breath near her vagina and he was licking her there. She felt something hard rubbing against her. She said her father tried to enter her but was unable to do so and he put ointment on her vagina. She "jumped", because it was cold, and her father was annoyed because in jumping forward she moved away from him. She said she was scared and she knew it was wrong. She was 9 years old. She said her father got on top of her with his hands in front of her head and all she could see was his hands. She felt the weight of his body against her and after putting ointment on her vagina he tried to put his penis inside her. When he was finished he let her out of the room. She said she did not speak to anybody about what had happened because her father used to threaten her. She said her mother was not at home; she would have been working day shift.

115. Count 15 alleged an offence of indecent assault on "L" occurring between 1 January 1965 and 1 May 1966 "on an occasion other than that referred to in count 13". This count was the subject of an acquittal by direction of the judge at the conclusion of the Crown case. In her evidence "L" had alleged that this offence occurred some time after the events of counts 13 and 14, and occurred when she was lying on the bed with her father, in the bungalow, undressed. He also was naked and was rubbing her body and pulling her over his genital area and was pushing her head down towards his penis, but ceased when he heard her elder brother calling for her. She did not tell anyone about this because her father threatened her, she said.

118. The applicant denied all of the allegations and gave sworn evidence in his defence. He also called his wife as a witness. The applicant had also denied all allegations when interviewed by police on 23 June 1999.

121. In his evidence the applicant said that the family moved to Reservoir in about 1956 and lived there for five years. Whilst he was living in Reservoir he worked for a stained glass window manufacturer in the mornings and in the afternoon he worked for the Post Office. He would start his shift at about 12.30 in the afternoon and work until 11.20 p.m. six days a week. His wife worked for a couple of hours a day when they lived at Reservoir. They moved to Kinglake in 1961 and his wife started work at Janefield Training Centre in about 1963-1964, working day shift for about a year and then night shift. When he was in Kinglake he drove a taxi and worked night shift. He finished work at 3.00 a.m. He agreed that his wife would occasionally stay at Janefield overnight while she was herself working night shift.

124. The applicant's wife gave evidence that whilst they were living in Reservoir her husband worked the afternoon shift for the Post Office and would return home about 1.00 a.m. She said that her husband did not commence night shift until the eldest child was about 16 years. She said that she only started work at Janefield in about 1965, three years after moving to Kinglake and she did not commence night shift until a long time after the children had grown up: "They were 15 years old." She said the allegations against her husband were nonsense, that he was a good father and that she had never seen any sign of the sort of activity which was alleged.

127. During the course of her evidence the prosecutor raised a matter in the absence of the jury concerning a letter which it was alleged the applicant's wife had written to her daughter "J", at a time when "J" was married and had a two year old child. A voir dire was conducted during which the applicant's wife initially denied authorship of the letter but eventually conceded that it was in her handwriting. The note read as follows:

"Sorry about the business of man trouble when you were young. My heart has been broken in pieces and I have failed as a mother. That business still goes on today. What gives a man the right? I have to live with it all the time so please no more about it. I can't forget about it, it's my punishment till death."

131. When confronted with the letter before the jury the applicant's wife said that she did not recall what the letter was referring to and did not know what she meant by saying she had failed as a mother. She said the letter had nothing to do with her husband. She said she did not believe there had been any problem between her daughters and her husband. She first found out about the allegations about two years ago.

134. In re-examination the applicant's wife told the applicant's counsel and the jury that her daughter "J" had had problems in her relationships with men who had been physically abusive towards her and she believed that the "man trouble" in the letter referred to that.

138. Before the jury was empanelled counsel for the applicant applied to the judge for a permanent stay of the proceedings, on the basis that the antiquity of the offences meant that the applicant could not receive a fair trial. Counsel asserted to the judge, and repeated before us, that the applicant had suffered actual prejudice because but for delay the applicant's advisers would have made use of employment records to support the applicant's defence. Although it was not clearly articulated how the records might have assisted the defence presumably it was hoped that they might have demonstrated the falsity of the allegations by showing that the complainant's evidence as to the employment of the applicant or his wife at relevant times was inconsistent with the employment in which he was engaged at the time of the offences claimed by them or else that the records would demonstrate that because of his hours of work the applicant could not have been present at the home when the offences were said to have occurred (or else, that his wife could not have been absent from the house, as claimed). Counsel submitted that the actual prejudice arose because of the following events:

(a) The persons who employed his wife in a milk bar at Reservoir were both deceased;

(b) There were no records relating to his wife's working record whilst at Janefield Training Centre. He could not, therefore, establish the dates and shift times of his wife's employment at Janefield;

(c) The employment records relating to dates and shift times of his employment with the Postmaster General's Department, although recovered, were agreed by the prosecutor to be illegible and unusable;

(d) The applicant's former employer taxi owner, with whom the applicant worked at one stage, was deceased;

(e) The records of the applicant's employment as a taxi driver with Yellow Cabs no longer existed;

(f) The employment record of the applicant with Silver Top Taxis no longer existed.

144. The considerations relevant to the granting of a permanent stay in such circumstances are well recognised: see Jago v. District Court of New South Wales[4]. Her Honour was familiar with the authorities. As Mason C.J. held[5], the power to grant a permanent stay would be exercised only in the most exceptional circumstances, in order to prevent injustice. Agreeing, Deane, J. held[6] delay can be so great that that it becomes unreasonable but whether that point has been reached will depend on the circumstances of the particular case, with the overriding consideration being whether the accused can receive a fair trial.

147. This was plainly a case which was at the outer limits of acceptable delay between the events and their prosecution. Her Honour noted, however, that despite his age the applicant did not assert or suggest that he had a poor memory as to events and was thereby hampered in that way in defending himself. His defence was, in fact, one of emphatic denial that any of the events occurred, at all, as the daughters had suggested.

150. Mr Lee conceded that mere delay, even for 40 years as in this case, was not of itself sufficient to require a permanent stay[7] but that it was necessary for him to demonstrate prejudice which had been suffered on account of the delay.

153. Her Honour held that whilst the problem in obtaining employment records might be an impediment to the applicant's defence, it could not be said that the absence of such documents was likely to cause real prejudice, affecting the applicant's ability to obtain a fair trial. Her Honour observed:

"The defence is one of emphatic denial, not alibi, so the issues could only be raised in an attack on the general credit of each of the complainants. No doubt an attack could be launched by other means."

157. Her Honour said that the matters which had been raised and asserted to establish prejudice went to the quality of the evidence, and the conduct of the trial, but were matters which could be dealt with by appropriate directions and did not constitute real prejudice so as to deny a fair trial to the accused. Her Honour said trials of this antiquity were not uncommon and there was a clear public interest in bringing the matters to trial. She noted that as Deane, J. held in Jago's case that an order for a permanent stay would only be justified in exceptional circumstances, and concluded that exceptional circumstances had not been demonstrated.

160. In my view, her Honour had regard to relevant legal principle and carefully evaluated the relevant factors addressed to her. The exercise of her discretion has not been demonstrated to be tainted by error. Ground 1 has not been made out.

164. Counsel applied, unsuccessfully, to the judge for separate trials with respect to each complainant. He submitted that there was not an "underlying unity" between the counts so as to justify the joinder of the counts in a trial.

167. Mr Lee submitted that severance of the presentment was necessary because it was a case where it had been established on the evidence that all of the complainants had discussed the allegations together prior to complaint being made to the police. There was a real possibility, therefore, of collusion between the witnesses, he submitted, and the tainting of their evidence.

170. Evidence was given on a "Basha" inquiry as to that allegation, and her Honour said that that revealed that the daughters had spoken with each other about their father's abuse, and in the case of "G" she had spoken to the family before she made her statement to the police. The judge found that the issues were the subject of heated debate in the family in 1971 and were also the subject of discussion at the time of the 17th birthday of the child of the daughter "C". The daughters had had telephone conversations together about the applicant's abuse at or about the time when they made statements to the police.

173. Mr Lee contended, also, that because the complainants had imperfect recollection those imperfections might be apparently overcome by virtue of the repetition of allegations before the jury. He submitted that because of the volume of allegations the jury might draw a conclusion based on a propensity assumption.

176. Her Honour noted that counts 1 and 7 both involved allegations by "J" and "V" concerning an instrument being inserted into them and counts 12 and 13 involved the complainants "C" and "L" both alleging that a jar of ointment was used in the bedroom. Her Honour held that there was mutually admissible evidence and referred to the case of R. v. D[8] in which Chernov, J.A. (with whom Phillips, C.J. and Tadgell, J.A. agreed) held that where an underlying unity existed between the counts a joint trial would be justified.

179. As to the underlying unity, her Honour noted that the victims were the accused's daughters; all were pre-pubescent when abused; all were living in the household; the accused man was an authority figure whom all (save for "J") feared; the events occurred over a five year period and the evidence of all of the daughters would be relevant to the question of the relationship between the accused and each of his daughters. Her Honour noted the preying nature of the attentions upon each of the daughters which was alleged and there was a similar mode of conduct in some of the counts. Her Honour held, therefore, that there was mutually admissible evidence as well as an underlying unity in the case which justified the joinder of the counts. It was not necessary that there be cross admissibility as to every count[9] and no complaint is made about her Honour's finding as to cross admissibility. The fact that the complainants had discussed the allegations did not, in her view, cause her to exercise her discretion in the accused's favour. Her Honour said there was no assertion made that the daughters had concocted false allegations nor that they had endeavoured to shore up each other's recollection.

182. Counsel accepted that by virtue of s.372 and s.398A of the Crimes Act 1958 the onus was upon the applicant to persuade the judge that joint trials should not be conducted. As a matter of law the presumption was that joint trials should be conducted in such circumstances.

185. I am not persuaded that her Honour's exercise of discretion miscarried. The underlying unity which was referred to by her Honour was indeed demonstrated in this case, in my opinion, by the matters referred to by her Honour. The offences against all of the daughters occurred at times when they were each aged between approximately 8 and 14 years. The offences usually took place in the applicant's bedroom and often were accompanied by a subterfuge or false explanation for his conduct, for example, suggesting that it was preparing them for sexual experience. There was a similarity in some of the offences by virtue of use of an instrument, and use of a lubricant. It was not necessary, in any event, that there be a striking similarity between the circumstance of the various counts if order to justify a refusal of severance.[10]

188. In my view, it was entirely appropriate that these counts be heard together and her Honour was quite right to conclude that collusion (whether deliberate or otherwise) had not been established. The mere fact that the complainants had discussed the allegations together would not be surprising and would not demonstrate that by virtue of that fact the applicant's prospects of a fair trial had been prejudiced.

191. Mr Lee submitted that had severance been ordered it would not have meant that the complainants would have faced the ordeal of been called to give evidence in each other's separate trials. The offences as against each complainant were few in number and were capable of being dealt with as discrete events rather than as interrelated events, Mr Lee submitted.

194. The fact that offences against different complainants were truly discrete events would be a relevant consideration, if that was the case, but her Honour was entitled to conclude that there remained a significant degree of inter-connectedness between the various counts in this case to justify a joint trial of all offences and, in my opinion, her Honour had regard to all relevant considerations in determining that the charges should be heard together[11].

197. There was a presumption arising from s.372(3AA) and (3AB) that the counts should be tried together and the applicant carried a burden of persuading the judge to rule otherwise. In my view, no error has been identified in the exercise of her Honour's discretion in refusing to order severance.

201. The terms of this ground of appeal complain that the trial judge should not have allowed the prosecutor to use the letter written by the applicant's wife when cross examining that defence witness. The letter was not tendered but its terms were displayed to the jury on a video screen because the applicant's wife gave her evidence by video link from Brisbane. In the course of argument before us Mr Lee conceded that the letter was relevant for the purpose of challenging the credit of the witness, and that must have been so because it was open to the jury to conclude that it was quite inconsistent with her assertion that until a couple of years ago she had not been aware of any suggestion of sexual impropriety by her husband against his daughters, and that the allegation they now made were nonsense. It was not on grounds of relevance that Mr Lee challenged the use of the letter by the prosecutor, but, rather, he contended that the judge should have denied use of the letter to the prosecutor in the exercise of her discretion to exclude evidence where the prejudicial effect of the evidence outweighed its probative value.

204. Mr Lee submitted that the prejudicial elements of the letter related to the phrase "That business still goes on today". The letter was undated and the Crown declined the judge's suggestion that the complainant "J" be recalled for the purpose of dating the letter. Mr Lee submitted that the jury might therefore have concluded that if it was an assertion that the applicant had committed sexual offences against his daughter then he was continuing to commit such offences. It is to be noted that that interpretation of the letter was not suggested at the time by Mr Lee, who appeared as trial counsel and who made extensive submissions to her Honour for the exclusion of the evidence.

207. Although Mr Lee contended that the letter was too ambiguous and uncertain as to its meaning for its contents to be led before the jury he did not press that argument. In my opinion, it would not have been mere speculation if the jury had interpreted the letter as an acknowledgment that the writer was aware of abuse by her husband against her daughter when the daughter was young. Whether they so interpreted it was a matter for the jury.

210. A further factor which was relevant to the exercise of discretion, Mr Lee submitted, but was not given any or any sufficient weight, was the fact that the letter was "emotive". In my view, there was nothing particularly emotional about the letter, and certainly nothing in its language which might, on that account, justify its exclusion from use by the prosecutor.

213. The letter having had clear relevance for the purpose of cross-examination, it was a matter for the exercise of discretion of the trial judge as to whether its prejudicial effect so far outweighed its probative value as to deny its use by the prosecutor. The letter was undoubtedly prejudicial to the credit of the witness, and insofar as the discrediting of his witness was harmful to the interests of the applicant, it was prejudicial to his interests too, but no ground complains that the judge did not properly direct the jury as to the use which might be made of such evidence. In my view, no error has been demonstrated in the exercise of her Honour's discretion in permitting the prosecutor to make use of the letter during cross-examination.

217. In her charge to the jury the learned trial judge summarised the submissions of Mr Lee as to the letter which had been used in cross examination of the applicant's wife. She reminded the jury of the submission made by Mr Lee that the letter was equivocal and it was not known what the reference to "man trouble" meant. Her Honour then noted Mr Lee's comment that the daughters had continued to live in the home until they married and the daughter "J", to whom the letter was sent, had returned to the home after her marriage, in response to violence from her husband. Mr Lee had asked the jury why she would have done so if her parents' home was such a violent place for her.

220. Her Honour told the jury that the proposition had not been put to "J", when she gave evidence, that she had returned to her parents' home after she was married on account of violence from her husband, nor had it been put to "J" - in the terms that the applicant's wife had said in her evidence - that the applicant had been obliged to go and get "J" after she had suffered violence from her husband and had brought her back to the applicant's home. Her Honour said that what had been put to "J" was merely that after leaving the parental home she had subsequently returned there.

223. Her Honour said that the fact that "J" had not been questioned as to the proposition stated by the applicant's wife meant that the jury did not have "J"'s response to that assertion, as made by her mother concerning the reason why she had returned to her parents' home. Her Honour then gave an unexceptional direction that the jury were not entitled to speculate about evidence which has not been led before them.

226. The complaint made in this ground of appeal is that it was unfair to comment on the failure to cross-examine "J" on the matters about which the applicant's wife was later to give evidence, namely, as to the circumstances in which, after her marriage, the complainant had come back to the family home. Her Honour did not suggest to the jury, in terms, that the failure to cross-examine "J" might be relevant to the question, and make it more likely, that the reference to "man trouble" might have been to assaults by her husband rather than by her father but the jury might have understood the proposition on which she was not questioned to extend to that suggestion.

229. Mr Lee submitted that it was unfair to make an adverse comment about his failure to question "J" in this way. He asserted, and the Crown does not dispute this, that the defence lawyers were unaware of the existence of the letter, thus the defence were not alerted to the issues which it raised, and could not have been expected to question "J" in anticipation that such evidence, as emerged in the re-examination of the applicant's wife, might emerge. Furthermore, he submitted, it would have been inappropriate for the defence to have cross-examined "J" on topics which might be regarded as constituting an attack concerning her sexual history after she left home.

232. No objection was taken to this direction concerning the failure to question "J". That omission is important and strongly suggests that counsel, at the time, did not apprehend any error in the direction. Had the direction been inappropriate its effect might have been cured by an appropriate re-direction.

235. In my opinion, the primary answer to the complaint raised in the ground is that there was no error in law by her Honour in giving such a direction. Her Honour was simply responding to a submission of defence counsel which might have caused the jury to speculate as to what "J" would have said had she been asked about the matters on which the applicant's wife gave evidence in re-examination. It was entirely appropriate to warn the jury that speculation was not evidence, and that is all she did. Her Honour made no comment which was deprecating of counsel's submission, nor critical of counsel or the applicant, nor did her Honour invite the drawing of any adverse inference against the applicant. In that sense, although this ground was said to raise a Browne v. Dunn[12] issue, it really did not.

242. In his address Counsel for the applicant said to the jury that the police had spoken to "J", who was one of the two sons of the applicant (the other son being "B"), and had also spoken to the youngest daughter, "E", who was born in 1959.[13] Mr Lee submitted to the jury that they might have expected the Crown to have called the son "J" because the complainant "L" had said that "J" had entered the room at or about the time when she was assaulted and had argued with her father at that time. In the absence of the jury, and in response to a comment by her Honour when dealing with exceptions taken to her charge, counsel agreed that if he had said to the jury that "J" had entered the room and that there had been an argument between the son "J" and the applicant then he had misstated the evidence, which was only to the effect that the assault on the daughter had been interrupted by the son "J" calling out to the applicant from somewhere outside the room. The Crown prosecutor agreed with her Honour that there was no evidence that "J" had been an eye witness to events or had argued with his father.

245. It was against the background of that later explanation of the unintended misstatement of counsel as to the potential role of the son "J" that her Honour's earlier directions to the jury must be understood, arising as they did in the context of her summary of the addresses of counsel.

248. Thus, in her charge, her Honour gave a direction about counsel's observation that "J" and "E" had not been called, and her Honour told the jury that meant that there was no evidence from them and the jury should not speculate about what they might have said. Her Honour then gave a direction as to the failure to call evidence and the more ready acceptance of evidence which might have been contradicted, if it was untrue, by a witness in a position to rebut it. Her Honour said that if the jury found "that a party had deliberately failed to call a witness who could have given relevant evidence" then the jury would be entitled to conclude that the witness would not have given evidence helpful to that party's cause. Her Honour then warned the jury that it would be better to rely on the evidence which was called rather than speculate on evidence which had not been called.

251. Her Honour repeated that Mr Lee had criticised the Crown for not calling "J" and "E" and said that a police witness had confirmed that those two children were available, their whereabouts was known, and they had been spoken to by police. Her Honour then continued:

"So equally it would have been open to Mr Lee to call them, if they could have been of assistance to his case, just as it could have been open to (the prosecutor) to call them if it could have been of assistance to his case. So there is an example where there is two inferences open and you would not draw the adverse inference to the accused because of it. Do you understand? Either party could have called the witnesses and neither of them have. So your obligation is to act upon the evidence that has been called in any event"

255. No complaint about this passage had been made until after the decision of the High Court in Dyers v. The Queen [14]was handed down on 9 October 2002, and it is now asserted that the comments which her Honour made, although not the subject of any complaint at the time they were made, should be regarded as being contrary to law, as determined in that case.

258. In Dyers the High Court was concerned with a count of indecent assault said to have occurred in an "energy conversion session" which took place in a room where the appellant, the leader of a sect, was present with the victim. Both the victim's mother and the 13 year old victim were members of the sect. The appellant gave an unsworn statement denying that he had been present at the room at that time, and an appointment diary was tendered which showed him to have had no appointment with the complainant but, instead, to have been in a different room with another member at that time. The diary showed that he had appointments with other members throughout the day. None of the persons named in the diary gave evidence.

261. The prosecutor commented to the jury about the failure of the accused, Dyers, to have called those witnesses to give evidence and submitted that they could infer that the evidence of those witnesses could not have assisted the case for the appellant. In reply, defence counsel submitted to the jury that there could be other explanations for the failure of the defence, apart from the inference which the prosecutor sought to have drawn.

264. In Dyers the trial judge gave the jury two directions. First he gave a Jones v. Dunkel[15] direction, to the effect that if any one of the absent persons was someone they would have expected one of the parties to have called to give evidence - and there was no satisfactory explanation for the failure to call the witness - then the jury might draw the inference that the evidence would not have assisted the party whom they concluded should have called the witness. The High Court (McHugh, J. dissenting) held that such a direction should not have been given. The second direction, was that the jury were not entitled to speculate as to what a witness might have said had he been called. The Court held that the second direction was an appropriate direction to give where there was a prospect that the jury might indulge in such speculation.

267. Although it might seem, at first sight, that the directions given in the present case offended the principles discussed in Dyers, that case, in my opinion, is distinguishable from the present case.

270. In their joint judgment Gaudron and Hayne, JJ, held[16] that, "as a general rule", a criminal jury should not be directed that an accused would be expected to give evidence or to call evidence. Their Honours held that "as a general rule" the jury should not be directed "that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused could have given, would not assist the accused".

273. Their Honours identified three reasons why that direction was not permissible. In the first place, the direction left open the suggestion that the accused man might have been expected to give or call evidence. That had been expressly stated by the prosecutor in Dyers, but the jury were given no guidance as to how they might determine whether it was the accused who should have been expected to give or call the evidence. By leaving open the suggestion that not merely could the accused have shed light on the issues, he was to be expected to do so, that ignored the fact that the onus of proof was on the Crown. Secondly, if the evidence was relevant then it was the Crown which was under a duty to call the evidence, and the jury would not have been aware of that obligation. If the Crown chose not to call evidence from a witness because the witness was said to be unreliable, then that would not support a conclusion by the jury that the defence should have called the witness. The third reason for avoidance of a Jones v. Dunkel direction, their Honours said, was that it ran counter to the direction which had properly been given to the jury that they must not speculate about what evidence missing witnesses might have given. Their Honours held that a fundamental problem with a Jones v. Dunkel direction was that the trial judge, in effect, was giving directions as to facts which might support a conviction, rather than merely commenting on facts, an impermissible role for the trial judge.

276. Kirby, J. agreed[17] that the Jones v. Dunkel direction might suggest to the jury that the accused was under an obligation to call evidence, thus reversing the onus of proof. His Honour said he agreed with Callinan, J, who held[18] that in almost all cases the trial judge should say nothing about an absent material witness whom an accused might have called. His Honour noted that the prosecutor in his address had, in effect, conceded to the jury that the witnesses had material evidence to give, and that being so it was for the prosecution to call them, if anyone. The Jones v. Dunkel direction presupposed an obligation on the accused to call evidence, which conflicted with the presumption of innocence.

279. There were a number of factors which distinguish this case from the situation in Dyers.

(a) In Dyers the Crown conceded that the Jones v. Dunkel direction should not have been given and was a misdirection. In the present case the Crown does not concede that what her Honour said amounted to a misdirection; (b) In Dyers it was the prosecutor who sought the Jones v. Dunkel direction to be applied against the accused. In the present case it was a topic introduced by defence counsel in seeking to have an adverse inference drawn against the Crown; (c) The prosecutor in Dyers expressly asserted to the jury that not only were the missing witnesses people who could give material evidence, it was the accused man who was expected to call them. In the present case the witnesses had not been shown to have any relevant evidence to give whilst the defence counsel had suggested a material issue on which one of them might give evidence that suggestion was based on a misstatement of the evidence, which her Honour corrected. Thus, the jury would have been unlikely to conclude that the missing witnesses might have had material evidence to give which was adverse to the interests of the applicant. In any event, her Honour did not, in fact, direct the jury that they could draw an adverse inference against the applicant that the evidence of the witnesses would not have assisted the defence. Her Honour's direction was to the contrary. She directed that both sides were capable of calling the witnesses, but told the jury that there was no reason why they might draw an adverse inference against either side by virtue of the non-calling of the witnesses. There was no direction, in this case, that the defence might have been expected to call these witnesses; (d) Her Honour, in the present case, gave the direction which the High Court held to be appropriate to give, namely, that the jury should not speculate about the evidence of missing witnesses, and in doing so the effect of that direction, unlike the situation in Dyers, was not countermanded by the Jones v. Dunkel direction which, in effect, in Dyers invited the jury to speculate on the evidence of missing witnesses. In the present case the whole thrust of the judge's direction was to deny any role for the Jones v. Dunkel direction and to advise the jury that they should not speculate about missing witnesses but should concentrate on the evidence which was called.

283. In my view, the directions given in this case did not constitute a misdirection, as being contrary to the principles stated in Dyers. However, if I am wrong in that conclusion and the direction did constitute a misdirection, then (subject to discussion as to the effect of a combination of errors, if other errors were held to have arisen) I consider that any adverse impact on the interests of the accused by virtue of the misdirection would have been so insignificant as to be incapable of constituting a miscarriage of justice, and this would be an appropriate case in which to apply the proviso to s.568(1) of the Crimes Act 1958.

291. Mr Lee complained that her Honour used the words "presumption of innocence" only once in her charge, and failed to give appropriate emphasis to that matter, it being of particular importance that she do so in a trial which was brought so long after the happening of the alleged offences, but concerning allegations to which there was likely to be a reaction of abhorrence by the jury.

294. Her Honour used the expression, "presumption of innocence", immediately after a paragraph in which she charged the jury concerning the onus of proof and the burden of proof. Her Honour then directed the jury that they had to consider each count in turn and said that "the presumption of innocence continues until and unless you are satisfied beyond reasonable doubt of the guilt of the accused".

297. There is no obligation on a trial judge to use the expression "presumption of innocence", at all. The requirement is that a strong and clear direction be given as to the onus and burden of proof: R. v. Palmer[19]; R. v. Henderson[20]; Tulic v. The Queen[21]. No complaint is made that her Honour did not give an adequate direction as to those issues.

304. Although Grounds 8 and 9 were argued together counsel for the applicant abandoned ground 9 in running, when it became apparent that it was based on a mistaken understanding of the terms of her Honour's direction. I found it somewhat difficult to understand the precise ambit of the complaint which was thereafter pursued by reference to Count 8. As I understand it, the complaint was that in directing the jury as to the use they could make of uncharged sexual acts her Honour, so it was said, may have misled and confused the jury by merging her directions on that topic with her directions about propensity evidence and the use which may or may not be made of the evidence of one complainant in determining counts which related to other complainants. Mr Lee referred to passages in the charge at pages 315 to 320.

307. Over those pages her Honour first directed the jury that they had to consider each count separately, and could not use a finding of guilt on one count for determining guilt on another count. Her Honour then discussed the evidence of the complainant "V" that events such as she had described had happened "numerous times". Her Honour directed the jury that they could use the evidence heard as to each count, and also the evidence of "V" of uncharged sexual events, in a limited way. Her Honour said first that while they had to consider the evidence relevant to each count separately:

" . . . you are nevertheless entitled to consider the evidence of all of the daughters, that is the complainants, taken together, in determining whether any of them is telling the truth".[22]

311. As to evidence relating to uncharged acts, which was only that evidence given by "V", her Honour next directed the jury that:

" . . . you can use such evidence, together with the evidence relating to the charged offences, if you accept such evidence, as establishing a sexual relationship between each of the complainants and the accused. That is, is (sic) the evidence relating to his way of dealing with them, engaging in sexual conduct with each of the complainants, his daughters, all very young girls at the time; in respect of two of them, Counts 1 and 7 being "J" and "V", the use of the plunger, and in respect of "C" and "L" being Counts 12 and 13, the use of the ointment. " If you accept that evidence, it may be that you are satisfied, if you like, that there is a unity of evidence there which is such that you might consider the evidence of a particular daughter concerning a particular activity which is charged against the accused on the presentment as thus more credible or believable. In other words, it bears upon the likelihood that the offence charged was in fact committed. . . . "In addition, the evidence of the uncharged acts may be used by you, if accepted, to place the offences alleged in a true and realistic context and to assist you to evaluate them, for the context can itself bear upon the probability or otherwise of the charged counts having been committed. Having said that, however, I direct you that you cannot reason from the evidence that the accused is the sort of person who would do the acts alleged in the presentment, that is, you cannot reason that the accused has a propensity for dealing with his daughters in a sexual way and therefore he must have done all of these things to them. . . .

315. Her Honour, next, expanded on the propensity warning, in terms which I will not set out. Her Honour then[23] directed the jury, in a passage to which Mr Lee directed particular attention, as follows:

"So that you can rely on the evidence of each of the complainants if you find it to be true but if you find that it, if you like, suggests a unity in that evidence, you can rely upon that evidence in order to assess the likelihood that each of the complainants is telling the truth, when they give the evidence relating to the counts with which the accused is charged pertaining to them. And equally in respect of the evidence that "V" gave that there were other occasions, where the incident that she was grabbed and there was licking of the vagina occurred, you can use that uncharged act too in order to assess the likelihood that she, when she was giving evidence relating to what did happen to her, is telling the truth. It bears upon the probabilities of whether she is telling the truth and it also sets those incidents relating to "V" and the evidence relating to each of the girls, that is the charged acts, in the context in which they say it occurred . . . So that you can use the context too as bearing upon the truth of their allegations, but you cannot, you are prohibited from saying, by reasoning , "He's a person likely to do this, therefore he has done it." . . . that is impermissible at law, because you are not then regarding each count in light of the evidence pertaining to it." (my emphases)

319. Her Honour directed the jury that they had to consider the evidence of each complainant separately, and could not use a finding that the offences had been proved with respect to one complainant as evidence of a propensity to commit the crimes alleged by another complainant.

322. As to these passages, as I understood the argument, there was no complaint made that anything said by her Honour on these topics misstated the law; the complaint was that the discrete directions may have been merged in the minds of the jury in an inappropriate way because the discrete directions were not clearly distinguished by her Honour.

325. Mr Lee submitted that at about the same point in her charge where she had directed the jury to consider the counts separately, and not to apply propensity reasoning, her Honour also discussed the use which could be made of evidence concerning uncharged acts, so that because of the juxtaposition of those directions the jury might have misunderstood what use could be made of such evidence.

328. Mr Lee contended, in particular, that the jury might have understood the directions as to uncharged acts to be that they could use the evidence of uncharged sexual acts committed against one complainant as relevant to the proof not only of the counts concerning that complainant but also as relevant to the proof of the counts concerning other complainants. I do not consider that the directions would have had that effect.

331. The directions given as to propensity seem to me to have been appropriately strong and clear[24], and those directions, as well as directions as to the need for separate consideration of counts and as to the use of uncharged acts, all correctly stated the law.[25] The evidence of uncharged acts concerning one complainant can be used by the jury only for limited purposes, in particular for establishing the relationship between the accused and the complainant so as to give a context to the allegations comprising the charged offences; the jury must be directed that the uncharged acts against a complainant are not proof in themselves of the charged offences concerning that complainant and that it is the evidence as to the charged offences which must prove those offences, not the uncharged acts: see R. v. Vonarx.[26] Clearly, if uncharged acts against one complainant are not capable of constituting proof in themselves of the charged offences relating to that complainant then they are also incapable of constituting proof of any of the charged offences which concern other complainants[27]. Mr Lee suggested that the jury might not have understood the use of the evidence of uncharged acts to be limited in such ways, but I do not consider that such a misunderstanding could occur.

334. Her Honour directed the jury that while they were obliged to consider each count by reference to the evidence which related to that count, they were entitled to have regard to the evidence of all of the complainants if they felt that there was a unity about that evidence which assisted them in their assessment of the likelihood that each of the complainants was telling the truth. Such a direction is unexceptionable; a jury might regard the evidence of all complainants as mutually supportive of their respective allegations[28]. Mr Lee did not suggest otherwise, but he submitted that by discussing evidence of uncharged acts immediately after she gave that instruction her Honour might have led the jury to believe that they could adopt the same approach by making use of the evidence of uncharged acts which were committed against any one of the complainants to shore up the evidence of guilt on any or all of the individual charges concerning other complainants. In my opinion. there was nothing said in the directions which could have caused such confusion.

337. In the last passage quoted above I have highlighted the words which show that when she was directing the jury about the use of uncharged acts concerning "V" the jury was directed that it was with respect to "V", only, that they could use those uncharged acts as proving the truth of her evidence on the counts concerning her, and with respect to the counts concerning the other complainants the uncharged acts concerning "V" were relevant only for context.

340. I do not believe that the impugned passages constituted a misdirection, nor do I consider that the jury would have misunderstood the direction which her Honour gave them.

343. In my view, the jury were correctly directed that the uncharged acts were relevant only for the purpose of establishing the relationship which existed between the applicant and his daughters, and to give the specific charges an appropriate context. Her Honour clearly directed the jury that uncharged acts could not be used as evidence of a propensity to commit the offences for which the applicant was charged and also directed the jury that uncharged acts could not be used to prove the charged offences. Thus her Honour gave both of the directions concerning uncharged acts which Callaway, J.A. held in R. v. TJB, at 633, were to be given in cases where there were multiple complainants.

346. Having re-read the passages several times I can not see how the jury could have been confused in the manner it was suggested they might have been. It is plain that the confusion was not apparent to counsel at the time the charge was given because no exception was taken in this respect, and had there been any potential for confusion it was capable of being corrected by a re-direction.

349. I am not persuaded that any error has been shown in these directions but even if there had been error the Court would be very slow to conclude that a miscarriage of justice had occurred in circumstances such as these, where exception was not taken by counsel at the time of the charge [29].

357. The complaint that the convictions were unsafe and unsatisfactory was said to be based on the combination of errors which were alleged in all of the other grounds of appeal (see R. v. Kotzmann[30]), rather than requiring a re-examination of all of the evidence by this court[31].

360. For the reasons stated, above, I do not consider that the suggested errors identified in the proposed amended grounds have been established and it is appropriate therefore, that leave to amend the grounds of appeal should be refused. Even if, contrary to my opinion, the complaints in grounds 5 and 8 should be regarded as having been made out the errors could not be regarded as being material ones[32] in the circumstances of this case, and the convictions would not be unsafe or unsatisfactory.

367. The original application for leave to appeal against sentence identified only one ground: that the sentence was manifestly excessive. At the hearing counsel for the applicant sought leave to amend that ground by adding that the manifest excess was by reference to the applicant's age, the delay between the offences and sentencing, the lack of prior convictions, the applicant's state of health, and "the unusual nature of the applicant's offending". Although it was not made clear, I took that last matter to refer to the fact that the offences occurred over a relatively short period, and comprised (for most complainants) discrete and relatively few individual acts against each complainant. None of the counts was a representative count recognising that there had been a pattern of conduct of a similar kind against each complainant.

370. Mr Lee indicated that he would also apply for leave to adduce evidence of the applicant's health and situation in prison for the purpose of demonstrating the true significance of facts which were in existence at the time of sentencing and/or were adverted to at the time of sentencing[33].

373. The court heard argument as to these matters without immediately ruling on those applications to adduce new material or to extend the grounds.

376. Mr Lee identified two areas in which events after sentencing were said to have occurred which threw light on the true significance of factors which had been taken into account at the time of sentencing. The first related to his medical condition.

379. The judge in sentencing had before him medical reports which showed that the applicant suffered a number of medical conditions which currently included peptic ulcer disease, arthritis of the right knee, cholecystecomy, a past fractured pelvis and his Honour said he was "presently" suffering abdominal pain and diarrhoea, which was being investigated, and suffered anxiety relating to his abdominal symptoms and his court case.

382. Although no medical reports were placed before this court counsel for the applicant submitted that since his imprisonment the applicant had undergone an operation for the stomach condition which had been under investigation at the time of sentencing. In my opinion, even if this matter is now taken into account it could have no bearing on the appropriateness of the sentence which was passed. What was a stomach condition which was being investigated at the time of sentencing has apparently led to what Mr Lee conceded was successful surgery and a full recovery.

385. The second medical condition was arthritis. Mr Lee submitted that the arthritis of the right knee had developed into increasingly severe osteoarthritis, to such an extent that the applicant now uses a walking frame. Once again, in my view even if that is accepted to have been the case, when he was sentenced the judge knew he was an elderly man with arthritis. The expectation must have been that such a condition would degenerate with time. In my view it could not be said that the severity of the arthritic condition was not known at the time of sentencing, even if the speed of its acceleration may not have been anticipated.

388. The third new factor was that the applicant had suffered a fall from a top bunk and knocked himself unconscious.

391. The respondent conceded that since being sentenced the applicant had suffered a fall from a top bunk on 23 May 2001, from which he might have suffered a loss of consciousness and which required a very short visit to hospital where he was placed under observation. Additionally, counsel conceded that the applicant had suffered mild osteoarthritic change to the spine since his imprisonment.

394. Mr Lee submitted that the physical impairment of the applicant made his imprisonment particularly difficult for him, and the fact that in his condition he had been placed in an upper bunk threw light on the circumstance known at the time of sentencing, but not fully appreciated, that prison would be hard for a person of his age; the extent of the difficulty of his imprisonment can now be appreciated, Mr Lee submitted. I agree with Mr McArdle that the fall is a new event, not something which throws light on events taken into account at the time of sentencing. As a new event it is a matter to be taken into account by the prison authorities or the Executive, not the court on appeal. Likewise, the issues raised by Mr Lee about the inappropriateness of and hardship of the applicant being placed in a cell where only a top bunk was available to him, leading to the result that he had at times been obliged to sleep on the floor. I do not deny that such events, if they occurred, are unsatisfactory and would represent an unacceptable harshness of the prison regime in the applicant's case, but, as Babic makes clear, those post-sentencing events are not matter relevant to an appeal.

397. Mr Lee's primary submission was that the total effective sentence of 6 years imprisonment with a non-parole period of 2 years six months was manifestly excessive for a man of his age and in his state of health.

400. 117 As Mr Lee acknowledged, and as is commonly stated by this court, the question of manifest excess does not admit of much argument. The sentence was a severe one for a man of the applicant's age and state of health. Her Honour, however, addressed those factors and each of the other factors which Mr Lee has now identified in the particulars he raised concerning manifest excess. These were very serious offences committed by the applicant against his daughters when they each were at a very vulnerable age. True it is that there was great delay between the offences and their exposure, and his sentencing. Her Honour allowed for that in imposing an effective sentence and non-parole period which is significantly lower than would be expected to have been imposed had the applicant been younger, fitter and had there been less delay before his exposure. However, the victim impact statements do not suggest that the period of delay has reduced for them the trauma of this offending conduct. Her Honour was entitled to conclude, as she did, that the offences here were at the higher end of the scale of seriousness of such conduct, and being committed by a person who showed no remorse whatsoever.

403. In my opinion, the sentences have not been shown to have been manifestly excessive.

407. The application for leave to add to and amend the grounds of appeal against conviction should be refused and the application for leave to appeal against conviction should be dismissed.

410. The applications for leave to amend the grounds of appeal against sentence and to lead fresh evidence should be refused. The application for leave to appeal against sentence should be refused.

415. Having read the judgment of Eames, J.A. in draft, for the reasons he has given, I agree that both applications should be refused.

[1] I have edited the grounds so that the complainants are not identified.

[2] R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at 13 per Callaway, J.A. (with whom Phillips, C.J. and Charles J.A. agreed) at 2.

[3] [1998] 4 V.R. 359 at 376.

[4] [1989] HCA 46; (1989) 168 C.L.R. 23, at 33-34, 60-61.

[7] See the discussion in "Abuse of Process and Delay in Criminal Prosecutions", by Scott Henchliffe (2002) 22 Aust. Bar Review, 18 at 21; R. v. Austin (1995) 14 W.A.R. 484, at 493; 84 A.Crim.R. 374, at 382.

[8] (1999) VSCA 148, at [53], citing Thompson v. R. [1989] HCA 30; (1989) 169 C.L.R. 1, at 39-40.

[9] R. v. T.J.B [1998] 4 V.R. 621, at 631; R. v. GAE [2000] VSCA 18; (2000) 1 V.R. 198, at [18]-[19], [45]-[57].

[10] R. v. Mitchell [2000] VSCA 54; (2000) 112 A.Crim.R. 315, at 318; see too R. v. PJO [2001] VSCA 213, at [16]-[17].

[11] See R. v. KRA [1999] VSCA 157; [1999] 2 V.R. 708, at 714-715; R. v. TJB [1998] 4 V.R.621, at 628-631.

[13] No count on the presentment related to the daughter "E".

[14] (2002) 76 ALJR 1552; (2002) 192 ALR 181.

[15] [1959] HCA 8; (1959) 101 C.L.R. 298.

[19] (1992) 64 A. Crim.R. 1, at 6-7, per Finlay, J. with whom Gleeson, C.J. and Carruthers, J. agreed;

[20] [1999] VSCA 125, at [26] per Phillips, C.J., Brooking and Ormiston, JJA.

[21] [1999] FCA 1120, at [13], per Dowsett, J., with whom Spender and Miles, JJ. agreed.

[24] See R. v. Thornely [1998] 3 V.R. 888.

[25] See R. v. Best [1998] 4 V.R. 603, at 615; R. v. J (No.2) [1998] 3 V.R. 602, at 639-640; R. v. Grech [1997] 2 V.R. 609, at 614; R. v. GAE [2000] VSCA 18; (2000) 1 V.R. 198, at 216-218.

[26] [1999] 3 V.R. 618, at 625.

[27] As is implicit in the judgment of Chernov, J.A. (with whom Phillips, C.J and Tadgell, J.A. agreed) in R. v. D [1999] VSCA 148, at [41]-[44]; and more explicitly so in the judgment of Tadgell, J.A. at [7]; see, too, R. v. Best, at 613.

[28] R. v. Best, at 618; and see R. v. PJO [2001] VSCA 213, at [28].

[29] R. v. Clarke & Johnstone [1986] VicRp 64; [1986] V.R. 643, at 661-662.

[30] [1999] VSCA 27; [1999] 2 V.R. 123.

[31] As would otherwise be required: see M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 492-493_; Jones v. The Queen_ (1997) 191 C.L.R. 439, at 450-452; Dyers, at 1564, pars [63]-[64], per Kirby J.

[32] See Dyers, at [52] per Kirby, J.

[33] See R. v. Eliasen (1991) 53 A.Crim.R. 391, at 394; R. v. Babic [1998] 2 V.R. 79, at 80-81; R. v. Rostrom [1996] VicRp 60; [1996] 2 V.R. 97, at 99.