R v Arundell [1998] VSCA 102

31. At the end of counsel's addresses, and before he had begun his charge, the learned trial judge announced to senior counsel for the applicant that "... it seems to me at the moment that I am obliged to give a Longman warning in this case". His Honour noted, however, the circumstance that the applicant's recorded answers during his police interview tended to confirm some of the complainant's evidence. His Honour observed to counsel that "The only problem with it is that the jury will have to be told there is undoubted corroboration to be found from your client ... Which makes the Longman warning a bit of a double-edged sword ...". This circumstance, with which senior counsel for the applicant agreed, evidently led him to say that he did not press for "a Longman-type direction". Counsel did, however, say "... it's not inappropriate for your Honour to warn the jury of the dangers of acting on evidence that occurred a long time ago". The learned judge did in the course of further discussion take the trouble to refer counsel to some passages in the joint judgment and in the judgment of McHugh, J. in Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79, and even to provide them with copies of a report of the case. In the course of discussion senior counsel for the applicant made it abundantly plain that he was urging the judge not to give a Longman warning for fear that it might work against the interests of his client by way of drawing attention to the concessions in the police interview. Counsel accordingly said that "... what we submit and submit with some force to your Honour is that we don't ask for such a warning, and the jury we will say are perfectly able to deal with the realities in the way this case has been conducted with [sic] the question". Counsel for the Crown submitted that -

"In this case it's clear that there is significant corroboration, with respect, and as a matter of general comment even if the jury are exhorted to test the complainant's evidence for reliability in the general way, that would in itself be in almost the short form of a Longman because her reliability has been attacked fairly clearly, and that raises the issue of looking for support in any event."

The discussion, as recorded, reveals plainly enough that his Honour's inclination remained much as he had originally intimated; and I have little doubt that he would have given a warning to the jury had he not been dissuaded. The nature and content of the warning that his Honour was disposed to give were not, however, made altogether clear. The course of discussion, and reference by defence counsel to "the question" and the submission of counsel for the Crown that I have quoted, suggest that his Honour's ultimate decision that he would "not give the Longman warning" was dominated by the circumstance that there was some corroboration of the complainant's evidence afforded by the record of interview. This was unfortunate, for attention seems to have been diverted from the need to consider whether other aspects of the case called for special attention by the jury in an evaluation of the complainant's evidence.

36. Notwithstanding the submission made "with some force" for the applicant at the trial, the first of nine substituted grounds of the application for leave to appeal against conviction was that the learned trial judge erred in failing to direct the jury in accordance with Longman v. The Queen. There was naturally much debate before us directed to the question whether, in the light of the stand that defence counsel had taken, the first ground could or should be allowed to provide a basis for setting the verdicts aside. Reference was made in the respondent's written outline to R. v. Gallagher [1986] VicRp 25; [1986] V.R. 219, at 237-8. There, the Crown prosecutor had urged the trial judge to warn the jury that certain witnesses were capable of being regarded as accomplices. Counsel for the accused strongly urged the judge not to do so and he did not. On an application for leave to appeal against conviction it was submitted that, notwithstanding the contention below, the judge had had no discretion in the matter, that he ought to have given an accomplice warning and that his failure to give it resulted in a miscarriage of justice requiring the setting aside of the conviction. The submission was rejected by the Court of Criminal Appeal on the footing that the contention at trial that no accomplice warning should be given was plainly in the best interests of the accused and that it could be nothing but absurd to say that there had been a miscarriage of justice as a result of the judge's failure to give such a warning. The Court of Criminal Appeal observed that the rule requiring a warning as to the evidence of an accomplice is one directed to serve the interests of the accused: R. v. Anthony [1962] V.R. 400, at 446. There was nothing in the case suggesting that the interests of the accused would have been served by the giving of the warning and -

"To insist upon giving the customary warning as to the evidence of an accomplice in circumstances where to do so could not serve the interests of the accused or would be positively damaging to those interests would be to elevate the rule of practice above the end which it is designed to produce."

40. I do not think that those remarks in R. v. Gallagher cover this case. Nor do I find it necessary to consider ground 1 as it is framed or the arguments that were addressed for and against it. The last of the nine substituted grounds is that the verdicts are unsafe and unsatisfactory. Save as to the verdict on count 3 (which counsel for the applicant conceded should not be set aside, there having been no miscarriage of justice occasioned by it) I consider that ground 9 should be sustained. I am of that opinion because, even if some aspects of the complainant's evidence might derive confirmation from the applicant's record of interview, the jury failed to receive from the learned judge a direction of a kind that was required in order, first, to warn them of the several very remarkable features of the case that demanded their particular scrutiny and, secondly, to advise them why the warning was necessary. As will appear, it cannot in my opinion be suggested that such a direction would not have served the interests of the applicant. On the contrary, I think that in this case his interests required it. The failure may very well have been - indeed it probably was - a result of the use by the judge and counsel alike of the expression "a Longman warning" as though it is a term of art with an inevitable signification. It is true enough that the terms "Longman warning" and "Longman direction" have, since the High Court decided Longman v. The Queen in 1989, passed almost into the vernacular of the criminal law, at all events in this State and in Western Australia: see, e.g., Robinson v. The Queen, Court of Criminal Appeal, W.A., unreported 30 April 1993, passim and R. v. Young [1998] 1 V.R. 402, passim. It would be unfortunate, however, if the usually convenient shorthand were to become a misleading trope. It really comprehends, or is capable of comprehending, warnings of many different kinds; and it will always be necessary to tailor to the requirements of the case at hand a warning that comes under its rubric. It is perhaps useful, when using the expression "Longman warning" (or "Longman direction") to distinguish between, on the one hand, the terms or type of a warning to the jury which the High Court in Longman's Case held to be necessary and, on the other, the circumstances which give rise to the necessity for such a warning and dictate its terms.

43. The High Court in Longman was particularly concerned with the necessity, in the circumstances of the case, that the jury should have been warned of the danger of convicting of a sexual offence upon the evidence of the complainant, there having been no independent evidence tending to confirm her allegations. Such a warning was held to have been imperative in that case because, without it, there was a perceptible risk of a miscarriage of justice. The joint judgment referred, however, to other circumstances which might give rise to the need for a comparable warning in order to avoid the same risk. At p.86 their Honours referred to a requirement of the general law that a warning be given -

"... whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Bromley v. The Queen; Carr v. The Queen ...".

Such a necessity might arise otherwise than in a case of a sexual offence and whether or not there is evidence which could confirm or support evidence whose nature, quality or provenance might be thought to give rise to the need for a warning of its potential unreliability. It is to be remembered that neither Bromley v. The Queen [1986] HCA 49; (1986) 161 C.L.R. 315 nor Carr v. The Queen [1988] HCA 47; (1988) 165 C.L.R. 314 was a case dealing with a sexual offence. Nor, in the case of Bromley, was the evidence of Carter (the schizophrenic in respect of whose evidence the sufficiency of a warning of its potential unreliability was called into question) entirely uncorroborated. In the joint judgment in Longman their Honours observed, at 87, that -

"A warning [scil. that it is generally unsafe to convict for any sexual offence on the uncorroborated evidence of the alleged victim] may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove."

At p.89 their Honours made it clear that a conviction following upon an omission to give the jury a warning of the kind required by the general law will be rendered "liable to be quashed as unsafe and unsatisfactory if it be held that the refusal to warn left a perceptible risk of miscarriage of justice". In the last paragraph on p.90 of the report, the joint judgment referred to a number of "significant" circumstances of the case which drew attention to the danger of acting on the uncorroborated evidence of the complainant otherwise than by reason of her being an alleged victim of a sexual offence. These included the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged and the absence of complaint. At p.91 the majority set out what the jury should have been told by the trial judge. This passage has been described as "what is known as the 'Longman direction'": Biser v. The Queen (Court of Criminal Appeal, W.A., 7 October 1991). Then again, what was said by McHugh, J., at 108, or something along the lines of it, has been treated as "the Longman direction": Robinson v. The Queen, supra, at 19. The term a "Longman warning" has often been used by this Court as a convenient expression without the need to define exactly its signification. In the present case, however, a "Longman warning" was spoken of by the judge and counsel apparently on the assumption that it signified only a warning to the jury that, in the circumstances of the case, they should scrutinise with care the evidence of the complainant so far as it was uncorroborated. The Crown supported the view that no warning to the jury concerning corroboration was necessary; defence counsel contended that in any event the question of corroboration should be left alone; and the judge appears to have concluded that no warning of any kind referable to the special circumstances of the case should be given to the jury at all. Quite apart from the availability of corroboration, there were aspects of the complainant's evidence that, in my opinion, ought to have been the subject of a warning to the jury to scrutinise it with especial care before acting on it to convict.

50. The period between the alleged commission of the offences against the complainant as a young child and the time when she was first asked to recount them gave obvious potential for error in recollection. There was also potential for embellishment, and the potential was magnified by the circumstances in which the complainant began her task of compiling the account which laid the basis for the charges against the applicant. It is evident that she consulted Dr Dewhurst because she was overwrought by a combination of disagreeable and de-stabilising personal affairs; that his questioning was a catalyst for her exploration of her past sexual abuse with a view to a possible explanation or justification of her then present parlous medical condition; that her sexual and other emotional experiences during her teen-age years had been not inconsiderable; and that her effort required in order to recapture the relevant events was drawn out and on her part uncommonly stressful. These considerations were, as I should think, not unlikely to place a severe demand on the complainant's memory and to cause no inconsiderable excitement of her imagination.

53. In R. v. Miletic [1997] 1 V.R. 593, at 605, this Court recognised and applied the principle that in the absence of a specific rule calling for a particular jury direction (as, for example, in the case of an accomplice) the judge should give "... any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice". In order to attract the principle there must be "... an identifiable factor or group of factors calling for a direction to be given". There is a distinction between circumstances that are well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge and not necessarily obvious to the lay mind: see also R. v. Spencer [1987] UKHL 2; [1987] A.C. 128, at 135, per Lord Hailsham of St. Marylebone. In Miletic the Court observed, at 606, that -

"Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury."

Adopting a description applied by counsel for the applicant in Miletic, the Court referred, at 606, to "the nature and quality of the complainant's testimony" which called for careful scrutiny. So it did here, for the reasons I have indicated. So, too, did the remarkable circumstances of the derivation and ultimate extraction of the complainant's deferred complaints and the consequences to the applicant of the delay: his ability to seek to meet the allegations must have been diminished: Longman, at 108, per McHugh, J. I consider that the forensic significance of none of these matters, and especially the consequences to the applicant of the delay, can be assumed to be obvious to a lay mind. They combined to require a warning by the judge so that the authority of his office brought them and their significance to the jury's mind with perspicuous clarity. In the absence of a direction from the judge that, having regard to all the circumstances of the case it would be dangerous to convict on the evidence of the complainant without giving it special scrutiny, the verdicts of guilty (save upon count 3) are in my opinion to be regarded as unsafe.

58. I use the expression "unsafe" not in the sense that the convictions were unsupported by evidence. The evidence of the complainant, if accepted, was of course sufficient to support them, but the important question is whether in the circumstances this Court can place appropriate confidence in the jury's acceptance of the complainant's evidence.

61. After the conclusion of argument in the present case the decision was handed down in Gipp v. The Queen (1998) 72 A.L.J.R. 1012, containing the High Court's most recent consideration of the concept of "unsafe and unsatisfactory" verdicts. According to Gaudron, J. (at para. 17) the expression "unsafe and unsatisfactory" in this context has no precise meaning. It may be used to indicate, among other things, that there is some defect in the summing up. Both Gaudron, J. and (at para. 169) Callinan, J. (quoting from M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 493) referred to Davies and Cody v. The King [1937] HCA 27; (1937) 57 C.L.R. 170, at 180, as justifying an intervention by an appellate court where there is "... some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled". Once it has been made to appear to the appellate court that there is a substantial possibility that the jury may have been misled in reaching their conclusion, so that the ground that the verdict is unsafe and unsatisfactory is truly raised, the appellate court's task is clear: it is to undertake "an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused": Morris v. The Queen [1987] HCA 50; (1987) 163 C.L.R. 454, at 473, and the other authorities referred to by Callinan, J. in Gipp at fn.141. Moreover, as Callinan, J. pointed out, at para. 171 -

"It almost goes without saying that the independent assessment of the relevant evidence has to be made in the context of the whole trial, including rulings on evidence and directions to the jury."

In my opinion the jury should not have been invited to accept the complainant's evidence without receiving a clear instruction to consider carefully its potential frailty. I am satisfied to say that, without such an instruction, the jury may have been misled into an acceptance of the evidence without an appropriate consideration of its shortcomings.

66. There is one other aspect of the charge to the jury which, although it was not canvassed in argument, I wish to mention because I think it also was apt to mislead. One of the chief issues raised in the case was whether there was any sexual penetration of the complainant by the applicant. As to that, the learned judge had this to say to the jury -

"Of the issues with which you have to grapple the first is I suggest to you was [the complainant] sexually penetrated by the accused? The Crown case is that she was and the episodes are those referred to in the counts that I have already said; that is to say 7, 10, 12, 15, 18, 19, 20, 23 and 14. The accused man unequivocally asserted to the police that he did no act of penetration at all, whether by penis or object. That issue is fairly simply stated and understood and will have to be considered by you in relation to each of the sexual penetration counts bearing in mind that it is not good enough for your purpose unless the Crown proves in the case of any particular allegation penetration beyond reasonable doubt and you will consider each of those particular allegations separately. The second issue is whether [the complainant] was dealt with by the accused man as otherwise alleged in the presentment. That is was she indecently assaulted as the Crown alleges? That issue, although easily stated, is by no means as easily dealt with because the accused man when he was interviewed made you may think significant concessions, pointing to a degree of sexual intimacy on at least some occasions."

Having chosen to give no specific direction to the jury about the concept of corroboration or the need for it, his Honour said nothing about it save to refer, towards the end of the passage I have just quoted, to "significant concessions" by the applicant. The reference suggests that the jury might think the applicant's concessions tended to confirm the complainant's allegations of indecent assault and, by inference, invites the jury to look for such confirmation. The passage does not appear to me to suggest that the jury might think that the applicant's concessions tended to confirm the allegations of sexual penetration. Indeed the context seems designed to draw a comparison in this respect between the counts of indecent assault, dealt with in the last of the three paragraphs from the charge that I have just quoted, and the counts of sexual penetration, dealt with in the first and second of those paragraphs. This was unfortunate. Even if it be thought that the applicant's concessions did not tend to confirm the complainant's evidence of penetration of her body by inanimate objects, it does not follow that such concessions as he made did not tend, despite his denials, to confirm the allegations of penile penetration. In his discussions had with counsel before delivering his charge the learned judge indicated, correctly as I respectfully think, that they did; and yet that is not, as I understand the words his Honour used to the jury, the impression that the charge was calculated to convey. It was, I think, an error to convey to the jury an impression that confirmation of the evidence about penile penetration might not be found in the applicant's record of interview. There was, of course, no other source of confirmation of that evidence, and the charge might well have been understood to mean not only that there was no need, but there was no point, in looking beyond the complainant's evidence in considering whether the Crown case on the counts of sexual penetration had been proved beyond reasonable doubt. If, in other words, the judge's charge was calculated to convey positively that there was no evidence independently confirmatory of the complainant's evidence of sexual penetration, that circumstance is to be taken into account when considering whether a failure to warn the jury of the danger of acting on the complainant's evidence without carefully scrutinising it might have led to an unsafe verdict.

71. An application was made to this Court to add a further ground for leave to appeal directed only to the conviction on count 23. This count alleged penile penetration of the complainant's vagina "between 1 January 1987 and 31 December 1988" contrary to s.48(1) of the Crimes Act 1958 as it stood in 1987 and 1988 (as substituted by the Crimes (Sexual Offences) Act 1980. The complainant turned 12 years of age on 24 February 1987 and s.48(6) applied. The effect of this provision was to preclude a prosecution for an offence against s.46(1) more than 12 months after its commission if it was an offence alleged to have been with a person of or above the age of 12. The application of s.48(6) was realised by the applicant's legal advisers only during the hearing in this Court. Counsel accordingly sought to add a (tenth) ground to the effect that, by reason of s.48(6) of the Crimes (Sexual Offences) Act 1980 count 23 is bad on its face and that accordingly the applicant could not have been convicted of the offence. The application to add the ground was not opposed and we should allow it. The validity of the ground was conceded and it follows that the conviction on count 23 must be quashed in any event.

74. I would grant the application for leave to appeal against conviction and order that the convictions be set aside save for that on count 3 and that there be a re-trial on the remaining counts save count 23. It would be necessary to re-sentence the applicant on count 3: cf. R. v. Thorne, C.C.A., Vic., 9 June 1995, in which a similar situation arose.

79. I agree with Callaway, J.A. that the application for leave to appeal against conviction should be dismissed and, with the addition of the following comments on grounds 1 and 7, for the reasons given by his Honour.

82. The applicant had, during his interview with the police, admitted a continuous indecent relationship with the complainant, which began at a time when he was aged 32 and the girl was about seven years old. He admitted that he had had a sensual yearning for the complainant and that he had been responsible for some acts towards her which could support the charge of indecent assault. The applicant admitted that on at least one occasion he may have been naked with the complainant and may have ejaculated in her presence. Mr. Tehan, Q.C., for the complainant argued that, at least as far as sexual penetration was concerned, each of these factors was "intractably neutral" and could not be used as corroboration. The prosecutor had however submitted at the trial that there was "significant corroboration" of the complainant's allegations and the learned trial judge described these factors as "undoubted corroboration".

85. Notwithstanding the forceful submissions of Mr. Tehan to the contrary, I am in no doubt that the challenged evidence was confirmatory of the complainant's allegations of sexual penetration. In Doney v. The Queen [1990] HCA 51; (1990) 171 C.L.R. 207, the High Court said at 211 that -

"The essence of corroborative evidence is that is 'confirms', 'supports', or 'strengthens' other evidence in the sense that it 'renders [that] other evidence more probable'."

89. In BRS v. The Queen [1997] HCA 47; (1997) 71 A.L.J.R. 1512, the appellant, a schoolmaster, was charged with counts of homosexual intercourse with a pupil. Evidence was given by the second appellant that before the offences the appellant had masturbated in his room in the presence of the complainant, had used a lubricant called KY Jelly for that purpose, and had cleaned himself with a yellow towel he kept under his bed. Another pupil, W, gave evidence that the appellant offered him the use of his room if he wished to masturbate, told him he kept a yellow towel under his bed for that purpose and also offered him the use of KY Jelly. The High Court by a majority allowed the appeal, holding that the judge had a duty to instruct the jury as to the limitations on the use they might make of W's evidence, which went properly to the question of the appellant's character and his credibility and to a specific, but slight extent, to corroboration, but which the jury unless properly instructed might have misapplied as propensity evidence. McHugh, J. said, at 1527, that the evidence of W -

"if accepted, showed that the appellant kept KY Jelly and the towel under his bed for the purposes of masturbation. It therefore tended to confirm the complainant's account of the sexual activity of the appellant which led up to the oral and anal intercourse which were the subject of the charges against the appellant."

93. There was a lengthy discussion in the present case as to whether a Longman warning should be given which took place immediately before the learned trial judge's charge, and which Callaway, J.A. has described. The experienced senior counsel who appeared for the applicant, and who "with some force" asked the judge not to give a Longman warning, was plainly aware of the risks to the defence which would follow from the judge giving a Longman warning, accompanied by a statement of the matters the jury would be entitled to take into account as confirmatory of the complainant's evidence. Counsel was clearly seeking to persuade his Honour not to give the Longman warning, in light of the forensic advantage he sought to achieve in consequence.

96. In these circumstances I agree that ground 1 fails, because, as Callaway, J.A. has said, the applicant was not denied, but through his counsel exercised, his right to a fair trial.

99. The argument that the jury's verdict was unsafe and unsatisfactory is a substantial one, and has troubled me. There were various matters which the applicant was entitled to call in aid as throwing doubt on the complainant's allegations. They included circumstances such as the bizarre nature of various of the alleged offences; the delay between the time when they were said to have occurred and the complainant's ultimate revelation of them in 1996; the fact that no disclosure or complaint had been made to the complainant's mother or anyone else in the intervening period; the complainant's abuse of marijuana and amphetamines and her psychological problems; the very distressing situation of the complainant including the termination of her pregnancy and the consequences of her discovery that she had been adopted; her unreliable memory including forgetting that she had had an abortion and the variations in her story; and the fact that the making of her statement to the police had taken some ten days to accomplish. These matters are recounted in the judgment of Tadgell, J.A. and I acknowledge the force of the considerations which have led his Honour to the conclusion that the applicant's convictions should be set aside under ground 9. After considerable hesitation I have come to the view that the nature and quality of the evidence was not so inherently suspect and devoid of probative value that we can conclude that the jury should have experienced a reasonable doubt. As Tadgell, J.A. has said, the evidence of the complainant, if accepted, was of course sufficient to support the charges.

102. In R. v. J. [No. 2] (shortly to be reported, Court of Appeal, 27 February 1997) Winneke, P. and I said in our joint judgment, at 52-53, of a submission comparable to Mr. Tehan's under ground 9, that -

"These were matters which were of a kind which the jury could properly take into account in forming a view of the truth and accuracy of the complainant's evidence and, given the nature of the manner in which the applicant's case was conducted and the terms of the learned trial judge's charge, we must assume that these matters were present in the minds of the jurors during their lengthy period of deliberation. When an appellate court is asked to conclude that a jury's verdict, notwithstanding evidence to sustain it, is nonetheless one which was not reasonably open to the jury, the court 'must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining the guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses' (M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 493)."

106. On the same basis, and bearing particularly in mind the fact that experienced senior counsel took no exception to the learned trial judge's charge, in my view the jury's verdict cannot here be said to be unsafe or unsatisfactory and ground 9 accordingly also fails.

109. I agree with Callaway, J.A. that the application for leave to appeal against sentence should be granted, and with the proposals for re-sentencing the applicant made by his Honour, in each case for the reasons given.

114. The applicant is now aged 48. A presentment was filed in the County Court charging 24 sexual offences said to have been committed by him between 1st February 1982 and 31st December 1988. A separate trial was ordered on count 24 and a nolle prosequi was ultimately entered in relation to it. In the course of the trial on the other 23 counts, count 4 was deleted and a count 16A was added. The learned trial judge directed the jury to return verdicts of not guilty in respect of counts 6, 9, 11, 13, 16 and 17. The jury also found the applicant not guilty on counts 7 and 19. He was convicted on eight counts of indecent assault (counts 1, 2, 3, 5, 8, 16A, 21 and 22), six counts of taking part in an act of sexual penetration with a child under ten (counts 10, 12, 14, 15, 18 and 20) and one count of taking part in an act of sexual penetration with a child between ten and 16 (count 23). After hearing a plea for leniency on his behalf, the judge sentenced the applicant to terms of imprisonment, and gave directions for cumulation, resulting in a total effective sentence of 11 years' imprisonment. A non-parole period of nine years was fixed and a declaration made regarding pre-sentence detention. I shall refer to the structure of the sentence in more detail when I turn to the application for leave to appeal against sentence.

117. The applicant seeks leave to appeal against conviction on nine grounds that were substituted by order of the Registrar made on 28th May 1998 and a tenth ground added by leave of the Court at the hearing of the application. Grounds 6 and 7 were not argued. Grounds 1 to 5, 8 and 9 read:

"1. The learned trial judge erred in failing to direct the jury in accordance with Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79.

2. The learned trial judge erred in failing to direct the jury in relation to relationship evidence.

3. The learned trial judge erred in failing to direct the jury in relation to propensity evidence.

4. The learned trial judge erred in failing to direct the jury on the use to be made of out of court statements made by the applicant in his record of interview.

5. The learned trial judge erred in failing to adequately direct the jury in relation to good character evidence.

8. The trial of the applicant miscarried in that part of the applicant's record of interview (question 417) was admitted into evidence in contravention of Palmer v. R. [1998] HCA 2; (1998) 72 A.L.J.R. 254.

9. The verdicts of the jury are unsafe and unsatisfactory."

When, later in this judgment, I refer to propensity evidence, I shall be using that expression in the broad sense that includes evidence of relationship: see Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461 at pp.464-465.

129. It is better to explain ground 10 in narrative form. The offences the subject of the presentment were offences against ss.44, 47, 48 and 50 of the Crimes Act 1958 as it stood as a result of the amendments made by the Crimes (Sexual Offences) Act 1980. Section 48(6) provided that no prosecution of a person for an offence against s.48 committed with or upon a person of or above the age of 12 years should be commenced more than 12 months after its commission. The complainant was born on 24th February 1975. Count 23, which charged an offence against s.48, pleaded that it was committed on a day unknown between 1st January 1987 and 31st December 1988. Ground 10 was to the effect that, by virtue of s.48(6), that count was bad on its face and accordingly the applicant was not lawfully convicted of the offence charged.

132. Before turning to counsel's submissions, I shall say something as briefly as possible about the circumstances of the offences. In doing so I shall adopt the complainant's account, the substance of which must have been accepted by the jury in preference to the applicant's account in his record of interview. It should be noticed that it was conceded at the trial that admissions in the record of interview made conviction on count 3 inevitable. Mr. Tehan, Q.C., who appeared with Mr. Bourke for the applicant, accepted that, even if his submissions found favour in other respects, the proviso to s.568(1) of the Crimes Act was applicable to the conviction on that count. It is still necessary to set out the facts relating to it, for they bear upon the application for leave to appeal against sentence.

135. Most of the counts on the presentment charged offences said to have been committed in 1983, when the complainant was seven or eight years old. Her evidence on each count on which the applicant was convicted may be summarized:

1. In 1982 the applicant began clearing a block of land adjoining the complainant's family home. On one occasion she was walking home and took a shortcut through the applicant's property. She stopped and spoke to the applicant when she saw him. After a time he led her into the bushes, pulled her pants down and rubbed the inside of her legs. He then took a twig and rubbed inside her leg and along her crotch area.

2. The complainant saw the applicant a couple of days later on his block of land. He led her among some wattle trees, where he sat her down and started rubbing inside her legs. He pulled her pants so that they were at ankle level and rubbed the insides of her thighs and groin. He then took some of the wattle tree and started tickling the inside of the complainant's thighs and towards her groin.

3. By 1983 the applicant's house had been built. He showed it to the complainant, taking her into the bathroom and removing all her clothes. He also undressed. He then asked her to lie down on the tiles and, when she told him that they were cold, he spread a towel for her. The applicant spread the complainant's legs, lay on top of her supporting his weight on his hands and started rubbing his chest and pelvis up and down her pelvis and belly thereby provoking an erection. The complainant testified that she felt sick as she recounted this episode to the jury.

5. About two weeks later the complainant went back to the applicant's house to return something for her father. He led her to the en suite, where an assault similar to that the subject of count 3 took place. On this occasion, in addition, the complainant's hands were tied with rope around the lavatory bowl.

16A. Approximately a week later the complainant once more went to the applicant's house. They were watching television together in the sitting room. The applicant undid his zip, took his penis out and told the complainant to lick it. She did as she was directed. She was also made to touch the applicant's penis with her fingers.

10.& 12. The complainant was first penetrated when she was aged eight or nine. The applicant took her into his bedroom and undressed her and then inserted the handle of a screwdriver into her vagina. The complainant kept telling him to stop and that it hurt. The applicant then lay on the bed, knelt in between the complainant's legs and started rubbing his penis up against her groin and stomach. He started to lead his penis into the complainant's vagina, whereupon she squealed and the applicant got off. She said that she bled as a result and that her hands were again secured with rope, this time to each side of the bed.

14. & 15. A few weeks after the offences the subject of counts 10 and 12, the complainant was in the applicant's bedroom. He again tied her hands to the bed before undressing the lower part of her body and pulling his own pants down so that his waist, pelvis and buttocks were exposed. He then undid one of the ropes and instructed the complainant to fellate him. Once again she did as she was instructed. The applicant then "wiggled down the bed" and guided his penis into the complainant's vagina.

8. On an occasion prior to the penetration with the screwdriver the applicant tied the complainant's hands around the lavatory bowl in the en suite. He put his fingers in his mouth and then put his fingers in the complainant's vagina.

18. & 20. On a date charged as occurring in 1983, the applicant led the complainant into his bedroom, undressed her and tied her hands to the bed-head. He then left and returned with a carrot and either a zucchini or a cucumber. He spread the complainant's legs and inserted the vegetables one by one into her vagina.

21. & 22. These counts related to indecent assaults consisting of touching the complainant over her clothes. She was ten years old at the time.

23. Either in 1987 or 1988 the applicant again penetrated the complainant with his penis. She pushed her backside into the mattress on which she was lying, which brought the assault to an end but angered the applicant, who slapped her on the buttocks and thigh.

149. Grounds 1 to 4 were argued together. Mr. Tehan submitted that the judge should have given directions similar to the directions the substance of which is set out in Longman v. R. (ground 1) and R. v. Grech [1997] 2 V.R. 609 (grounds 2 to 4). The former direction was said to be necessary by reason of -

(a) the delay of between ten to 15 years between the alleged offences and their first coming to light;

(b) the extraordinary nature of the allegations, which included the complainant's being tied to a bed and a lavatory bowl with rope and vegetables being inserted into her vagina;

(c) the age of the complainant at the time of the offences; and

(d) the fact that all the alleged acts occurred without any complaint to the complainant's mother or neighbours.

155. The direction modelled on R. v. Grech was said to be necessary because of admissions made in the applicant's record of interview, an edited version of which was received in evidence. The applicant had admitted, for example, that on at least one occasion he may have been naked with the complainant and may have ejaculated in her presence. There was a danger, counsel submitted, of the jury's reasoning from such admissions that the applicant was the kind of person who was likely to have committed the offences with which he was charged. It was not suggested at the trial that a propensity warning should be given but there was discussion between the judge and counsel, prior to the charge, as to the need for a direction modelled on Longman's Case. It is important to refer to that discussion in some detail.

158. At the conclusion of counsel's addresses his Honour asked senior counsel for the applicant whether he contended that a Longman warning should be given. Counsel responded that it would not be inappropriate "to warn the jury of the dangers of acting on evidence that occurred a long time ago". It should be noticed that counsel concentrated, rightly in my opinion, on the first of the four points by reason of which it is now said that a warning should have been given. When the judge said that, if he gave a Longman warning, he would put it to the jury that the complainant's evidence was corroborated in a variety of ways, counsel replied that he did not press for that kind of direction. Exchanges of this kind are not to be construed like a statute, and his Honour doubtless meant that he would give a standard direction as to what evidence was capable of being regarded as confirmatory of the complainant's account, leaving it to the jury to decide whether in fact the evidence afforded such confirmation.

161. Before he began his charge the judge raised the topic again, reminding counsel that "the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible miscarriage of justice". He expressed a concern that it might be his duty to warn the jury that they should look for corroboration of the complainant's evidence because of her age at the time of the first offence, because of the time-lapse that had occurred and because of the applicant's inability to challenge her description of particular episodes by reason of the delay in accusing him. His Honour said that he was inclined to think that he should perhaps give a Longman warning whether or not the defence thought it appropriate.

164. Senior counsel for the applicant replied that "weighing up all of the circumstances, the accused doesn't ask for it". Counsel said that he saw an advantage to the applicant in there not being a Longman warning. He submitted that such a direction was not required in every case simply because of the nature of the allegation, the complainant's age or the delay. It was, he contended, a matter of discretion and a fact that should weigh in the exercise of that discretion was "the fact that we don't ask for it". His Honour reiterated his concern, saying that he did not have a discretion about a potential miscarriage of justice. Counsel conceded that that was so but pressed the judge not to reach a conclusion that a warning was necessary, saying that it could work against an accused person if it were given in an inappropriate case. He concluded by saying "that what we submit and submit with some force to your Honour is that we don't ask for such a warning". The jury, he continued, were "perfectly able to deal with the realities in the way this case has been conducted with the question". The prosecutor submitted that a Longman warning was perhaps unnecessary as there was corroboration and defence counsel did not require it. In the light of those submissions, his Honour decided that the warning need not be given.

167. A Longman warning in the strict sense is called for only by a case where the complainant's evidence is unconfirmed or the jury may conclude that it is unconfirmed. (Longman's Case concerned corroboration, so I shall use that word when referring to the case or to the discussion below, but it is preferable in Victoria to speak of "confirmation" rather than "corroboration": see R. v. Miletic [1997] 1 V.R. 593 at p.605.) That is clear from the often-cited paragraph in the judgment of Brennan, Dawson and Toohey, JJ. that appears at pp.90-91 in the Commonwealth Law Reports. At the beginning of that paragraph their Honours said that the question which arose in that case was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. After referring to matters that might well have called for a comment and to the factor of delay that required a warning, their Honours said that the jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. The first question to be considered in the present case is whether there was independent confirmation relating to each count on the presentment.

170. The prosecutor had identified pieces of evidence that were said to be confirmatory in the course of his final address. I accept Mr. Tehan's submission that some of them were not confirmatory at all and others were not confirmatory of the evidence relating to every count. There would therefore have been little point in asking the judge simply to identify the evidence upon which the Crown relied: see R. v. Kendrick [1997] 2 V.R. 699 at p.707. The applicant had, however, admitted a continuous indecent relationship with the complainant and that, in my opinion, was confirmatory of her evidence in respect of each of the alleged offences. Counsel submitted that it was intractably neutral with respect to the offences of sexual penetration because the applicant had constantly denied that there had been any penetration. I do not accept that submission even in relation to counts 10, 18 and 20. If a thief admitted to breaking into a house and stealing a $5 note, that would be capable of corroborating evidence that he stole the entire contents of a safe. If a man admitted long-standing animus towards the victim of a serious assault but denied the assault itself, the denial would not prevent the admission from being capable of corroborating the Crown case. R. v. Apps (unreported, Court of Appeal, 26th May 1998), on which counsel relied, was a case where the allegedly confirmatory evidence went to a matter that was common ground and intractably neutral. The evidence of the indecent relationship afforded by the record of interview goes to common ground only in an artificial sense. See Cross on Evidence (5th Australian edition 1996) para. 15170 and the cases there cited, especially R. v. Lindsay (1977) 18 S.A.S.R. 103 at p.122.

173. Longman's Case is an illustration of a broader principle, namely that a judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice. See Longman's Case at p.86, Bromley v. R. [1986] HCA 49; (1986) 161 C.L.R. 315 at p.325 and Carr v. R. [1988] HCA 47; (1988) 165 C.L.R. 314 at p.330. That principle was discussed by this Court in R. v. Miletic at pp.605-606. At p.606 we said that a distinction should be drawn between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge. Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. In my view that is applicable to all the points by reason of which it was said that a warning was required in the present case except the factor of delay. Standing alone, they would not have required a warning; together with the factor of delay, they may have increased the need for such a warning: cf. Miletic's Case at p.606 lines 25-38.

176. It is unnecessary to consider circumstances in which the broader principle, coupled with delay, may require a warning in respect of testimony that is indisputably confirmed by other evidence. The direction discussed between the judge and counsel in this case was properly described as a Longman warning, even if there was evidence that was capable of affording independent conformation of every count. Whether it actually afforded such confirmation was a matter for the jury. In Longman's Case itself there was no corroboration. In other cases the jury may be told that it is dangerous to convict if they conclude that there is no independent confirmation of the complainant's allegations. That is the kind of conditional direction that the judge would have given if senior counsel had not pressed him not to give it.

179. Counsel took that course because he perceived it to be advantageous to his client. Compare Suresh v. R. [1998] HCA 23; (1998) 72 A.L.J.R. 769 and see especially paras 22-23 and 54-58. It is as well to consider briefly why he thought that to be the case and whether the matter should have been viewed differently. Counsel had not been enthusiastic about the prospect of a Longman warning. At most he had conceded that it would not be inappropriate having regard to the delay that had occurred before complaint was made. What determined him to ask the judge not to give it was his Honour's intimation that he would tell the jury that there was corroboration of the complainant's evidence in a variety of ways. It was not just the admitted relationship of indecency. The applicant had admitted to producing a rope on one occasion. He said (question 299) that he could see that the complainant was "distraught" and that he had put the rope away, without using it. The advantage counsel saw was that, although the applicant lost the benefit of a scrutiny warning, there would be no elaborate identification by the judge of damaging material that supported the complainant's account. All that would happen, and did happen, was a reference to the confirmatory evidence on which the Crown relied in the course of his Honour's summary of counsel's final addresses and the inclusion of the passage from the charge set out in the judgment of the learned presiding judge.

182. Mr. Tehan submitted that, whilst counsel's preference could be taken into account in determining whether a warning was necessary to avoid a perceptible risk of miscarriage of justice, such a direction had to be given if it was in truth necessary. In BRS v. R. [1997] HCA 47; (1997) 71 A.L.J.R. 1512, for example, Gaudron, J. said at p.1526 that there was a duty on the part of a trial judge to give proper directions if there was a serious risk of injustice, whether or not those directions were sought, and that it was a corollary that the failure of counsel to seek directions could not be fatal to the success of an appeal or an application for leave to appeal if it appeared that there had been a substantial miscarriage of justice. Compare R. v. Gallagher [1998] 2 V.R. 671 at pp.683-684 and 688-690 and R. v. McKellin (unreported, Court of Appeal, 19th December 1997) in the judgment of Phillips, C.J. and Charles, J.A. at p.9. In the same passage her Honour said that the risk arising from the failure to give the directions with which that case was concerned far outweighed any advantage that might have been obtained by the course the trial judge took. McHugh, J. took a different view of the question of advantage at pp.1530-1531 but concluded that the failure to give the directions nevertheless meant that the appellant had lost a real chance of being acquitted. That, too, is a reference to a substantial miscarriage of justice; see also his Honour's judgment at p.1529.

185. There is more than one way in which BRS v. R. is distinguishable from the present case. In the first place, it was concerned with directions limiting the use of evidence involving a person other than the alleged victim. A warning against propensity reasoning was required. Ground 1 is concerned with a warning about the effects of delay. BRS v. R. is more in point in relation to grounds 2 to 4 but, even if no relevant distinction is to be drawn between the kind of directions with which the High Court was concerned and a direction concerning evidence of relationship, I do not consider that a direction based on R. v. Grech was required. My reasons for that conclusion appear later in this judgment. Secondly, BRS v. R. was not a case where counsel had asked the judge not to give a warning which, it was subsequently argued on appeal, should have been given. It was an example of failure to take relevant exception. Thirdly, their Honours' references to a substantial miscarriage of justice show that they regarded the omission of the required directions as having caused the trial to miscarry. As Toohey, J. said at p.1521, it was hard to resist the conclusion that, in all the circumstances, the appellant may not have received a trial according to law. See and compare, in relation to Edwards directions, R. v. Konstandopoulos (shortly to be reported, Court of Appeal, 23rd December 1997) in my judgment, in which Winneke, P. and Kenny, J.A. concurred, at pp.10-11 and 15-16. Our task is to determine whether this trial miscarried or the applicant did not have a trial according to law, when due weight is given to the position taken on his behalf by experienced counsel.

188. One returns, therefore, to Longman's Case to understand the legal significance of delay and why it may call for a direction that the complainant's evidence be subjected to close scrutiny. That reason was given by Brennan, Dawson and Toohey, JJ. at p.91. It was that "[t]he fairness of the trial had necessarily been impaired by the long delay", which in that case was more than 20 years. Their Honours said that it was imperative that a warning be given to the jury; but, as with all judgments, those statements must be understood in the context in which they were made. The fairness of the trial had necessarily been impaired and a warning was imperative where, first, the complainant's testimony was totally uncorroborated and, secondly, counsel had not made the kind of forensic decision that was made here. Longman's Case establishes that the relevance of delay is fairness to the accused, but it is a matter for judgment whether a warning was imperative in the instant case.

191. The strongest form in which Mr. Tehan's argument can be put is that a direction to subject the complainant's evidence to close scrutiny would have had to be given if counsel had asked for it; that the fairness of the trial had obviously been impaired by the delay between the commission of the alleged offences and their first coming to light; and that counsel could not waive his client's entitlement to a fair trial. The last branch of the argument may be put in more than one way. For example, it may be said that, if a trial is not fair, it has plainly miscarried; or it may be said that it is in the public interest, and not solely in the interest of the accused, that there should be a fair trial. That is a formidable argument, but there are two countervailing considerations.

194. The first is that, as the majority of the Full Bench of this Court said in R. v. Storey [1998] 1 V.R. 359 at p.372, the criminal law must be administered in such a way that it can be understood by ordinary citizens, it must be regarded by them as conforming with generally accepted standards of what is fair and just and it must be operated as a going concern. That project would not be advanced by upholding ground 1. As Mr. Coghlan, Q.C., who appeared for the respondent, submitted, "If judges in criminal trials cannot act on the careful judgment of one of Her Majesty's counsel in a matter such as this, it calls into question the reasonable administration of criminal justice in this State." It is not as if counsel's request to the judge not to give a Longman warning conflicted with a rule of law or prevented the jury from considering an issue that should have been left for their consideration. See and compare Munday v. Gill [1930] HCA 20; (1930) 44 C.L.R. 38 especially at pp.66-70 and 86-90; Pemble v. R. (1971) 124 C.L.R. 167 at pp.117-118 and 130 and R. v. Stokes and Difford (1990) 51 A.Crim.R. 25 at p.32, where Hunt, J. said that counsel cannot concede a matter of law to the disadvantage of the accused and the judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence.

197. In Pemble v. R. Barwick, C.J. said at p.117 that, whatever course counsel may see fit to take in the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. That brings me to the second of the two countervailing considerations to which I earlier referred. Although a Longman warning would have been given with the authority of the judge's office, that does not mean that it was required by a rule of law. Such directions are given simply because the experience of the courts makes it proper to intrude, to that limited extent, on the jury's constitutional role in finding facts. Compare R. v. J. [No. 2] (shortly to be reported, Court of Appeal, 27th February 1997) in my judgment at pp.2-5. The issue confronting the defence was whether or not to focus the jury's attention, with the authority of the judge's office, on the factor of delay. In my opinion his Honour could do as he was requested by experienced counsel without prejudicing the fairness of the trial. The reason for that conclusion is to be found in the first part of the judgment in R. v. Miletic and the authorities there cited.

200. One of those authorities was Re Ratten [1974] VicRp 26; [1974] V.R. 201, where the Full Court said at p.214:

"Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and, if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice.

In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice.

But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above. This is made even more obvious where the choice was made to obtain, and has obtained, for the accused, substantial advantages such as the last address and the use of strong arguments based on Crown evidence which the additional evidence would have contradicted."

206. That was a case where it was sought to adduce additional evidence, but the passage I have quoted is of assistance. Consistently with what was said by the majority of the Full Bench in R. v. Storey, it emphasizes that the exercise of forensic judgment goes to the heart of our system of criminal law. Moreover the analogy is not far to seek between a decision not to put evidence before a jury for their consideration and a decision not to ask the judge to focus particular attention upon an aspect of the evidence that has been received. Experienced counsel should be allowed to make such choices which, as the Full Court pointed out, appositely for the present case, are often made with a view to corresponding advantage. The analogy with depriving a jury of the opportunity to consider, for example, provocation in a homicide case is remote. (As to the analogy, if any, with taking a risk that the jury may engage in a forbidden chain of reasoning, see R. v. T. (1996) 86 A.Crim.R. 293 at p.299.) For the judge to give effect to such a forensic decision involves no "wrong decision on any question of law" or any "miscarriage of justice". Accordingly the jurisdiction conferred by the opening words of s.568(1) of the Crimes Act is not enlivened and no question arises as to whether the applicant may have been acquitted if the trial had taken a different course.

209. It should be emphasized that that does not mean that an applicant for leave to appeal against conviction cannot succeed because his or her counsel asked for a direction not to be given that should have been given. The ultimate questions are always those implicit in s.568(1): see Suresh v. R. at paras 22, 55 and 65 and Gipp v. R. (1998) 72 A.L.J.R. 1012 at paras 126 and 167. An unusual request by inexperienced counsel or a request by counsel labouring under a misapprehension may well occasion a miscarriage of justice. In those and other cases appellate intervention is warranted. A serious error of judgment even by senior counsel will sometimes be sufficient. In the present case, however, I do not consider that ground 1 is made out. The applicant was not denied, but through his counsel exercised, his right to a fair trial.

212. The other grounds that were argued with ground 1 may be dealt with more briefly. A direction in conformity with R. v. Grech was not required, because the record of interview did not constitute evidence of uncharged acts. As Tadgell, J.A. pointed out in the course of the hearing of the application, it contained the applicant's responses to the allegations made by the complainant, i.e. his version of the limited extent to which they were true. It is as if a man charged with intentionally causing serious injury admitted a common assault. The latter would not constitute evidence of an uncharged act in respect of which a propensity warning was appropriate. I do not overlook the fact that some uncharged acts in the technical sense might be spelled out of the record of interview, but that was not its tenor and substance or the way in which it was perceived below. To that limited extent at least, it is permissible to have regard to the fact that no such direction was even adumbrated at the trial. A direction based on the skeleton direction in R. v. Grech at p.614, limited to such uncharged acts, would have highlighted the non-extraneous sexual conduct that the applicant had admitted.

215. Propensity warnings are important and this Court has not hesitated to insist on them in proper cases. For a recent example, see R. v. Thornely (unreported, 30th March 1998), especially at p.4. They may become even more important if propensity evidence is more readily admitted pursuant to s.398A of the Crimes Act. See R. v. Best (unreported, Court of Appeal, 23rd July 1998.) They are not, however, designed for facts such as these.

218. It will be recalled that ground 5 asserted that the learned judge erred in failing adequately to direct the jury in relation to evidence of the applicant's good character. His Honour said:

"You have heard evidence from the police that the accused man has not been convicted of any crime in the past and is of good character. That evidence is led by the defence in disproof of guilt of the charges where the accused man says, 'I am not guilty'. It bears directly upon the probability of his having actually committed those offences which he told the police he had not committed. Now, good character can't alter proven facts, but it is evidence that you should consider along with the other evidence in reaching a conclusion as to whether the facts relied upon by the Crown have been proved to your satisfaction beyond reasonable doubt."

222. A direction concerning evidence of good character does not always have to be given: see Simic v. R. [1980] HCA 25; (1980) 144 C.L.R. 319 at p.333. When it is given, as King, C.J. said in R. v. Trimboli (1979) 21 S.A.S.R. 577 at p.578, no particular form of words is necessary. The judge should tell the jury to bear the accused's previous good character in mind when they are considering whether to draw a conclusion of guilt from the evidence. It is a factor affecting the likelihood of the accused's committing the crime charged, the weight of which often depends on the nature of the evidence and the character of the crime. Honesty, for example, may have little bearing on whether the accused committed a crime of violence and, even more obviously, vice versa. The judge may add, if he or she thinks it appropriate in the particular case, that the jury should also consider the accused's previous good character in assessing his credibility. See R. v. Murphy (1985) 4 N.S.W.L.R. 42, where the Full Bench of the New South Wales Court of Criminal Appeal explained the law in a similar sense at p.54, and R. v. Bednikov (1997) 95 A.Crim.R. 200 at pp.208-209. The position in England is different: see R. v. Vye [1993] 1 W.L.R. 471 and R. v. Aziz [1996] A.C. 41. This case does not require us to consider whether there should be any change in Victoria or whether, in any event, it would be open to this Court to initiate it in the light of the authorities to which I have referred: cf. Barrow v. The State [1998] 2 W.L.R. 957 at pp.959-960.

225. Mr. Tehan was asked what factor required his Honour to direct the jury that the evidence of good character bore on the applicant's credibility. Counsel pointed again to the factor of delay. Delay makes it more difficult to test a complainant's allegations. The accused person's own recollection will also have dimmed with the passage of the years. He may make mistakes. His evidence may appear jejune. He may be less confident and his testimony carry less conviction than it would have done at an earlier time. All that may be conceded, but I do not think that his Honour can be criticized for failing to go further than he did. He was not asked to do so, and it cannot be said that he was bound to take the step that is now said to have been incumbent upon him. That conclusion is assisted by the fact that the applicant did not give sworn evidence: cf. R. v. Zecevic [1986] VicRp 78; [1986] V.R. 797 at p.822.

228. Ground 8 related to question 417 in the record of interview. The complainant had alleged that on one occasion the applicant had penetrated her vagina using first a carrot, then a parsnip and finally either a cucumber or a zucchini. Those allegations ultimately became the subject of counts 18, 19 and 20. In question 417 he was asked, "[W]ould you like to make any explanation as to why she's said these things?" The answer was, "No, I've - I've denied all along of [sic] any form of penetration ...". The applicant added (question 418) that the complainant seemed to be making up her ideas of penetration with his finger or using an object. At question 150 he had been asked whether he could think of why she would have said that he had penetrated her with his penis. The applicant acknowledged that he felt guilt over such incidents as had occurred and said that the complainant "must have some problems with dealing with it" and "you might have to ask her that".

231. Mr. Tehan relied on the decision of the High Court in Palmer v. R. [1998] HCA 2; (1998) 72 A.L.J.R. 254 that cross-examination of an accused person as to the possible motive of the complainant was impermissible. That decision is, of course, binding on us, but compare R. v. T. [1998] 2 N.Z.L.R. 257 at pp.263-267. Counsel submitted that the same principle applied to police questioning. The argument was, as I apprehended it:

1. The record of interview, which contained both inculpatory and exculpatory statements, was evidence in the case. See and compare R. v. Aziz especially at pp.48-50 and R. v. Harrington (unreported, Court of Appeal, 30th October 1997) in the judgment of Charles, J.A., in which Phillips, C.J. and Vincent, A.J.A. concurred, at p.14. The answer to question 417, and possibly that to question 150, proved that the applicant could not suggest a motive for the complainant's allegations.

2. That fact was irrelevant: see paragraph 9 of the judgment of Brennan, C.J., Gaudron and Gummow, JJ. in Palmer's Case. It was therefore inadmissible. Counsel could hardly have objected to its reception, or asked for it to be excluded from the record of interview, having regard to the prevalent view in Victoria at the relevant time: see paragraph 11 of their Honours' judgment. I interpolate that special leave had been granted and the decision of this Court in R. v. Costin (unreported, 7th August 1997) had been published.

3. The evidence was not only irrelevant and inadmissible but prejudicial, especially as some of it was repeated by the judge in the course of his charge. In referring to the record of interview as it bore on counts 18, 19 and 20 his Honour said:

"It is put to him that the vegetables were used and he is asked for his comment and replied: 'The only things I use those things for is a salad.' He said: 'She seems to be making up these ideas of penetration with the screwdriver, the finger, pieces of branch. I've never done anything like that.'"

It will be observed that his Honour did not repeat the answers to either question 150 or question 417. The references are to questions 416 and 418.

4. The applicant's inability to provide an explanation for the complainant's allegations would have been understood by the jury as an argument, on the part of the prosecution, for their consideration. It was an argument that would have assumed particular importance having regard to the character of some of the complainant's allegations. The jury might well have thought that they were strange allegations but then, on the other hand, no reason had been advanced why the complainant should have made them up if they were not true.

240. In my view that four-stage argument, although superficially attractive, should be rejected. It gives the three answers in the record of interview an importance out of all proportion to their real significance. There were simply two questions by the investigating police that gave the applicant an opportunity to suggest a motive if he wished. That is quite different from cross-examination designed to insinuate that it bolsters the complainant's credit that an accused person cannot suggest a motive for her to lie. The reasoning that Palmer's Case shows to be impermissible was not deployed by the prosecutor in his final address. Neither the burden nor the standard of proof was impliedly diminished. Compare R. v. Somers (unreported, Court of Appeal, 15th June 1998) in the judgment of Phillips, C.J. at pp.16-17 and in the judgment of Phillips and Kenny, JJ.A. at p.3 and R. v. J.M.S. [1998] VSCA 19 at pp. 5 and 6.

243. Ground 9 was that the convictions or some of them were unsafe or unsatisfactory in the sense explained in M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at pp.494-495 and Jones v. R. (1997) 72 A.L.J.R. 78 at p.85. A distinct argument was advanced in relation to counts 18 and 20 and may be dealt with first. Count 18 charged the act of penetration with a carrot and count 20 an act of penetration with a cucumber. (The complainant was unable to say in evidence whether it was a cucumber or a zucchini.) Both counts charged that the relevant offences were committed between 1st January and 31st December 1983, which was the same period during which it was alleged that the applicant penetrated the complainant with a screwdriver (count 10). In examination-in-chief the complainant was asked whether the offences with the vegetables occurred "in the same year in which the screwdriver incident occurred". She said that she was not exactly sure and that she did not think that it was the same year.

246. Mr. Tehan accepted that the law on this subject is as laid down by the English Court of Criminal Appeal in R. v. Dossi (1918) 13 Cr.App.R. 158, 87 L.J.K.B. 1024 but he pointed out that it was an element of the offences charged in counts 18 and 20 that the complainant was under the age of ten. It was therefore an essential part of the Crown case not that the acts took place in 1983 as pleaded but that they took place before 24th February 1985. The short answer to this point is that there was no dispute at the trial as to the victim's age. It must be taken to have been informally admitted pursuant to s.149A of the Evidence Act 1958. In explaining the elements of the offences of sexual penetration to the jury his Honour said that the Crown had to prove that the victim was a child under the age of ten or, in the case of count 23, a child aged between ten and 16 but that there was no dispute as to her age at the relevant times.

249. More generally, counsel relied on what were said to be unsatisfactory aspects of the complainant's evidence and the way in which the Crown case was presented. For example she claimed that, as a result of the penetration with the screwdriver and the first penile penetration, she had bled from the vagina and that her mother, who had noticed blood in the bath water, had thought that it was her period. In that part of her evidence she said that she was eight or nine years old. Her mother said that the complainant had been bathing herself at that age and that the witness had not noticed any blood on her underwear. It was also said that the evidence of the complainant's being tied to a bed with rope was unsatisfactory. She was not shown the rope that was tendered by the informant and, when she was shown a photograph of some rope, she said that that was not the rope that had been used. Criticism was advanced of the evidence concerning the feasibility and likelihood of ropes being attached to the bed in question. The complainant had also told the police that two boys, Bellingham and Roberts, had tied her up in the presence of the applicant. Roberts was called as a witness and denied that contention.

252. The applicant's sister had resided with him during most of the relevant period and had spent the greater part of her time in the house. She did not see anything untoward. As I have already mentioned, the alleged victim made no complaint to her mother or to anyone else. The incidents first surfaced when a doctor asked her whether she had been abused. The complainant's statement had been put together in stages. At first she had not made any allegation of penile penetration. She was suffering from depression and had smoked marijuana for years, at times heavily, as well as having used amphetamines. Her evidence did not at first accord with her statement and had to be corrected after she had re-read her statement during the luncheon adjournment.

255. The foregoing gives a synopsis of counsel's main points and others that may be gleaned from the transcript. It is true that there was reason to doubt either the complainant's accuracy or her memory. She claimed, for example, to have forgotten at the committal proceedings that she had had an abortion. She admitted that her ingestion of marijuana had affected at least her short-term memory. On the other hand the jury may well have responded sympathetically to the following answer given in cross-examination:

"And so the jury will know this: that the first time you made a formal statement to the police you got the dates wrong?---I got the years wrong. I was - also at the time the incident actually happened I was seven, eight, nine, ten years old. Sometimes I don't even remember what I did at 15 and dates and years, let alone at seven or eight."

259. Consistently with M. v. R., as understood by this Court in R. v. Marziale (unreported, 18th April 1996) at pp.12-14, I cannot say that the verdict was "unreasonable or cannot be supported having regard to the evidence" or that the nature and quality of the evidence was so inherently suspect and devoid of probative value that we are entitled to conclude that the jury should have experienced a reasonable doubt. In the language approved in Jones v. R. at p.85, it has not been shown that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on each of the counts on which he was convicted. It is our duty to assess the evidence for ourselves, but it is equally incumbent upon us to remember that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, that they had the benefit of seeing the complainant and the other witnesses give their evidence and that they did not have the benefit of seeing the applicant give sworn testimony. The only witness called on his behalf was his sister.

262. Ground 10 must be upheld in relation to count 23. The purpose and effect of s.48(6) of the Crimes Act were explained in R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662, where it was held that the legislative policy had to be given effect even in a case where the applicant had pleaded guilty, for the statutory bar against prosecution could not be waived as if it were a private privilege. In the present case it was contrary to the policy of the statute for the applicant to be put to answer in respect of so much of the period pleaded in count 23 as fell on or after the complainant's twelfth birthday. A judgment and verdict of acquittal should be entered on that count. It was not submitted that the reception of the evidence relating to count 23 infected the verdicts on the other counts.

265. For these reasons I would grant the application for leave to appeal against conviction but, notwithstanding Mr. Tehan's admirable argument, I would allow the appeal only in relation to the applicant's conviction on count 23.

268. I turn to the application for leave to appeal against sentence. Ground 4 was not argued. The other grounds read:

"1. The learned sentencing judge erred in not allowing for a period greater than two years in respect of which the applicant be released on parole.

2. The learned sentencing judge erred in failing to place any or any sufficient weight upon the applicant not having offended for a period of ten years.

2(a) The learned sentencing judge erred in placing too much weight upon specific deterrence and too little weight upon the applicant's prospects of rehabilitation.

3. The learned sentencing judge erred in failing to place sufficient weight upon the applicant's personal antecedents and the report of Mr Ian Joblin.

3(a) The learned sentencing judge erred in failing to make any finding upon the issue of the applicant having been molested as a child.

5. The individual and total sentences are in all the circumstances manifestly excessive."

278. It is convenient to deal first with ground 3(a). The applicant told Mr. Joblin, whose report was received in evidence on the plea, that he had been sodomized by a Marist father whilst at boarding school and caned by the same man for no apparent reason. The judge intimated that he would not accept that as a sentencing fact either on the basis of the history given to Mr. Joblin or by way of hearsay evidence from the applicant's sister. He invited counsel to call his client to give that evidence, which invitation was declined. In those circumstances his Honour was not bound to be satisfied on the balance of probabilities or at all of a sentencing fact which, if established, would have been a mitigating factor. See and compare R. v. Raptis, Lilimbakis and Sinclair (1988) 36 A.Crim.R. 362 at p.366, R. v. Ali [1996] VicRp 56; [1996] 2 V.R. 49 at p.61, R. v. Boyle (1996) 87 A.Crim.R. 539 at pp.544 and 546 and R. v. Storey [1998] 1 V.R. 359.

281. The other grounds may be summarized as asserting that the judge gave insufficient weight to the applicant's personal antecedents, including a disturbed childhood, to the fact that he had not committed another offence during the intervening period of ten years, to the character references tendered on the plea and to the support that his relatives would give him when he was released from prison. Next it was submitted that one or more of the individual sentences, as well as the total effective sentence, were manifestly excessive. Finally, counsel said, there should have been a greater gap between the head sentence and the non-parole period. His Honour had been asked on the plea to have particular regard to the non-parole period.

284. It is at this stage that the sentencing structure becomes relevant. His Honour sentenced the applicant to 18 months' imprisonment on each of counts 1 and 2 and four years' imprisonment on each of counts 3 and 5. They were the first four indecent assaults. It was directed that three-and-a-half years of the sentence imposed on count 3 and one year of the sentence imposed on count 5 be served cumulatively upon each other and upon the sentence imposed on count 1, resulting in six years' imprisonment for the first four indecent assaults. The other indecent assaults (counts 8, 16A, 21 and 22) were visited with three years', four years', six months' and six months' imprisonment respectively. None of those terms was to be served cumulatively. The offences of sexual penetration with a child under ten were each punished with six years' imprisonment and the offence of sexual penetration with a child aged between ten and 16 with five years' imprisonment. One year of each of the sentences imposed on counts 10, 12, 14, 18 and 23 was added to the six years to which I have already referred. That is why the total effective sentence on all counts was 11 years' imprisonment. It was mentioned earlier in this judgment that his Honour fixed a non-parole period of nine years.

287. As the conviction on count 23 will have to be quashed, some adjustment of the total effective sentence and the non-parole period will in any event become necessary, but the question remains whether sentencing error is disclosed.

290. The individual sentences, the total effective sentence and the non-parole period were undoubtedly severe, but the offences were very serious. Even the indecent assaults on which sentences of three and four years' imprisonment were imposed were of a particularly degrading character. The greatest leeway should be accorded to a sentencing judge in fashioning an appropriate total effective sentence by means of his or her directions for concurrency or cumulation: see R. v. Mantini (1997) 95 A.Crim.R. 33 at pp.41-44. It was, however, manifestly excessive to punish the first four indecent assaults with six years' imprisonment. I derive that conclusion independently from, but it may be supported by, the consideration that the actual punishment meted out for all the other offences of which the applicant was convicted was only five years' imprisonment. That included seven counts of sexual penetration. In those circumstances the sentencing discretion is re-opened and we are obliged to reconsider the matter for ourselves.

293. In my view no change should be made to the head sentences imposed below on the offences of sexual penetration with a child under ten. They reflect the seriousness of the offences without disregarding circumstances of mitigation. The learned trial judge said that it was the worst case of its kind in his experience. The maximum penalty applicable at the relevant time was 20 years' imprisonment. The applicant is not entitled to any discount for pleading guilty and the only evidence of remorse is to be found in Mr. Joblin's report. As his unsuccessful application for leave to appeal against the convictions on those counts shows, he is willing for the complainant to be put once again through the trauma of giving evidence. That does not suggest remorse. The mere effluxion of time does not wring the heartstrings in the case of sexual offences against small children, but the applicant is entitled to have taken into account that he has no previous convictions and that there are no allegations of subsequent misconduct. Those facts bear upon his prospects of rehabilitation and the weight to be given to specific deterrence.

296. I would confirm each of the sentences imposed on counts 10, 12, 14, 15, 18 and 20 and for the last two offences of indecent assault (counts 21 and 22) but reduce the sentences imposed for the other six offences of indecent assault, re-sentencing the applicant to 12 months' imprisonment on each of counts 1 and 2, two years' imprisonment on count 8 and three years' imprisonment on each of counts 3, 5 and 16A. Contemporaneous offences do not always warrant concurrency, as R. v. O'Rourke [1997] 1 V.R. 246 illustrates, but in this case I consider that there should be concurrency as between counts 10 and 12, counts 14 and 15 and counts 18 and 20. Bearing in mind that the applicant falls to be sentenced as a serious sexual offender on counts 14, 15, 18 and 20, I would direct that one year of each of the sentences imposed on counts 3, 14 and 18 be served cumulatively upon each and upon the sentence imposed on count 10, making a total effective sentence of nine years' imprisonment.

299. As Winneke, P. said in R. v. Mulvale (unreported, Court of Appeal, 20th February 1996) at p.11, the fixing of a non-parole period "requires discrete consideration of those factors which exist in the material before the court which bear upon the question of whether the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision". The applicant's prospects of rehabilitation are important, but in a case like this it is also important to ensure that the non-parole period not be so low as to undermine the objective of general deterrence: see R. v. V.Z. [1998] VSCA 32 at 15 and the general discussion of principle in that case. It is the public interest that is primarily to be served by providing for "conditional freedom, when appropriate, once the prisoner has served the minimum time that ... justice requires that he must serve having regard to all the circumstances of his offence": see Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at p.629; Deakin v. R. [1984] HCA 31; (1984) 58 A.L.J.R. 367, Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at pp.531, 536 and 538 and R. v. Krasnov and Shlakht (1995) 82 A.Crim.R. 92 at p.99. Having read the plea and considered the material that was tendered, as well as Mr. Tehan's submissions on the application for leave to appeal against sentence, I propose that a non-parole period of six years should be fixed.