R v B A H

3 With regard to the applicant's appeal against conviction, Mr Croucher, who appeared for the applicant, submitted three principal grounds of appeal, each containing subsidiary grounds:

• First, that the trial judge erred in his directions to the jury on uncharged acts alleged by the complainant in the course of her evidence, notably in failing to identify the limited purpose for which the evidence of uncharged acts might be used. In addition, it was submitted under this ground that the judge erred in failing to direct the jury that the allegations charged on the presentment could only be proved by the evidence relating to them, not by evidence of uncharged acts. Finally under this ground, it was submitted that the judge erred in failing to give a propensity warning.

• Secondly, it was submitted that the trial judge erred in giving an unbalanced charge, in particular failing to refer sufficiently to the cross-examination of the complainant in the charge, and also allowing jury questions on certain matters. In addition under this ground, it was also submitted that the judge erred in failing to refer to counsel for the applicant's final address in sufficient detail, or at all, undermining counsel's arguments about inconsistencies in the complainant's evidence, appearing to endorse the prosecutor's argument that if the complainant was lying she would not have denied vaginal penetration, advancing an argument, which was not raised by the prosecutor, that it would be improbable for an eleven-year-old girl to invent an allegation of oral penetration and in repeating uncritically to the jury the prosecutor's argument that one of either the complainant or the applicant must be lying.

There was also a third ground of appeal with respect to the adequacy of directions. However, that matter was not pursued.

4 With regard to the applicant's appeal against sentence, Mr Croucher submitted, in the course of argument and in written submissions, one principal ground containing multiple elements. Mr Croucher submitted that the sentencing judge erred in giving no or insufficient weight to totality and delay, in particular that the sentencing judge erred in fixing a sentence higher than the applicant had received at his first trial, with no Crown appeal having been instituted against sentence.

5 The complainant was the applicant's daughter and was eleven years of age at the time of the alleged incident. The complainant resided with her mother, father, younger sister and two brothers. On weekends the applicant would often take the family on fishing trips to a creek in Healesville.

6 The Crown alleged that the offences alleged on the presentment occurred on one such fishing trip, at an unspecified date but within twelve months of the complainant being interviewed in May 1999. The family had been fishing at their customary location, and then the applicant's wife and the children, other than the complainant, were said to have returned to the family car parked a short distance from the fishing spot. The vehicle could be seen from the fishing spot.

7 The applicant and the complainant continued to fish. The complainant said that the applicant called her over to where he was seated on a rock. He then touched her under her dress, but on the outside of her underwear around the area of her vagina. The complainant claimed that the applicant then took his penis out of his pants and asked her to hold it, which she did. The applicant then requested that the complainant move her hands up and down on his penis, which she did. This alleged act constituted the first count against the applicant on the presentment. The complainant said that the applicant then pushed her head down towards his penis and made her suck it, which she did for about five minutes. This alleged act constituted the second count against the applicant. When the applicant's wife called, so the complainant said, from the car, the conduct ceased and the applicant told the complainant not to tell her mother. Despite this, the complainant then went to the car and told her mother what had happened.

8 Subsequently, following an investigation by school authorities concerning the applicant's behaviour towards his children, a meeting took place between officers from the Department of Human Services, the school principal, a support person for the complainant, and a police detective. At this meeting, the complainant made disclosures in relation to alleged sexual misconduct by the applicant, including events other than that which occurred at the fishing incident. A formal Video and Audio Taped Evidence ("VATE") interview was conducted with the complainant on 3 May 1999. The complainant's mother has consistently declined to make a statement to the police.

9 During the trial, the Crown called three witnesses: the complainant; Lisa Hazel Prendergast, a Detective Senior Constable of Police attached to the Sexual Offence Child Abuse Unit, Knox Community Policing Squad and Ian Campbell, Senior Sergeant of Police. During evidence-in-chief, the complainant gave evidence in the VATE recorded on 3 May 1999 that on occasion the applicant would come into her room, which she shared with her sister, at night and touch her "private part". The complainant also claimed that the applicant had made her suck his penis on many other occasions. The complainant also gave evidence-in-chief viva voce from a remote witness facility. During the course of cross-examination, counsel for the applicant tendered extracts from the first and second trial concerning claimed factual inconsistencies in the complainant's evidence about the exact circumstances of the alleged offence. It is to be observed that the other sexual conduct just referred to constituted what, for the subject of the appeal, we will refer to as "uncharged acts".

10 The defence called one witness, the applicant, who denied that the acts constituting the offences had ever taken place. After the closing addresses and the judge's charge to the jury, the jury retired to consider its verdict and subsequently returned to court and asked for the VATE tape to be replayed in its entirety. The jury then later returned to court and asked for part of the VATE tape to be replayed. That occurred. The jury returned a guilty verdict on each of the two counts.

The Application for Leave to Appeal

11 On the hearing of the application for leave, the applicant raised two grounds only. The first ground was that the trial judge erred in his directions with respect to uncharged acts, in failing sufficiently to identify the limited purpose for which the evidence of uncharged acts might be used and in failing to give a propensity warning (grounds 1(a) and (c)), the remaining component of ground 1, the full statement of grounds of appeal against conviction, not being pursued.

12 The obligations imposed upon a trial judge with respect to uncharged acts were plainly stated in R. v. Grech[1], having been set out earlier in R. v. Vonarx[2]. In Vonarx (decided in 1995 though not reported until 1999), the Court said that:

" ... where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that the evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.

The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him on the presentment only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred".[3]

13 In Grech,[4] Callaway, J.A. clearly identified the obligation of the trial judge. Citing R. v. Beserick,[5] his Honour said:

"If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged."

14 Thereafter, in the plainest and most concise terms, Callaway, J.A. said:[6]

"In my opinion, the jury should have been told that:

(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it -

(i) the commission of the offences charged could be proved only by the evidence relating to them, not by the evidence relating to the extraneous conduct; and

(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged."

15 Ordinarily, in our view, a trial judge need only set out these matters. That said, there is little scope for variation or abbreviation. In view of the guidance provided by the judgment of Callaway, J.A. in Grech,[7] there should be no difficulty in meeting the requirements for such a direction. In this trial the judge charged the jury to consider all the evidence, including the evidence of the uncharged acts, and directed that the verdict was to be reached on the particular counts and not on other matters. His Honour charged that there were two directions he was required to give. First of all, the judge directed that the evidence of the uncharged acts was led by the Crown so that the jury could understand the real nature of the relationship between the applicant and the complainant. Thus, the first part of the uncharged acts direction, the relationship factor (as required in Grech), was met.

16 Then the trial judge proceeded to direct the jury to avoid thinking:

"Well, I am satisfied that something occurred. I don't know what it might have been, I don't know when it might have been, but it's clear from the account overall that something occurred to [the complainant] at the hands of her father."

His Honour directed the jury that it would constitute "improper reasoning" to return a verdict on the subject counts on that basis. His Honour specifically directed: "You must not do that." Thus, the first part of the second component of the necessary direction, sometimes called the "anti-substitution" direction, was given.

17 That does not, however, complete the necessary direction. The remaining component of the direction involved directing the jury that because of the uncharged acts they may not reason that " ... he was the kind of person who was likely to have done so on the occasions charged".[8] This is the "propensity" component of the direction. His Honour failed to give it. Notwithstanding the use of the expression "improper reasoning", the trial judge did not go past an anti-substitution direction and provide the necessary propensity component. Despite an exception taken by defence counsel, including an attempt to submit that the requirement went further than his Honour had directed, his Honour determined not to redirect. Ground 1(c) is therefore made out.

18 There was another matter submitted for the applicant with respect to ground 1(c), that there was no evidence as to whether the uncharged acts occurred before or after, or either side of, the uncharged acts. In all likelihood, the evidence was that the acts occurred before; but, because the other part of the ground is made out, it is unnecessary to determine that aspect.

19 There was a further ground (ground 2) that the charge was unbalanced and unfair to the applicant on a number of bases. The requirements with respect to VATE tapes were amply considered by this Court in R v B.A.H..[9] It is unnecessary to revisit them. We are satisfied that this criticism was, in the main, not warranted. In light of our finding with respect to the first ground, however, it is in any event unnecessary to determine the question of imbalance, save to observe that his Honour, an experienced judge, charged the jury immediately after two days of evidence in a succinct manner. Ultimately, balance is a matter of judgment in the circumstances of the individual trial. There is a judicial duty to put the defence fairly to the jury.[10] Having considered carefully the charge and the directions by the trial judge, we are not satisfied that, taken all in all, there was any unfairness to the applicant. The ground is not made out.

20 It follows that the application will be granted, the appeal treated as heard instanter and the appeal allowed. The remaining question is the disposition of the applicant.

21 This is, indeed, a very unfortunate case. There have been so far three trials: the first trial, the conviction being quashed by this Court and a retrial ordered;[11] the second trial wherein the jury was discharged being unable to reach a verdict; and the subject third trial in which, because of the misdirection, the convictions must again be set aside. The applicant has been in custody serving a sentence with respect to an unrelated matter. The complainant faces the prospect of giving evidence for a fourth time. In the third trial her evidence on earlier occasions was subjected to scrutiny in cross-examination. There is then the matter of delay. These matters first arose when the complainant was 11. She is now aged about 18 years. Mr Croucher urged that in all the circumstances of this case - in particular the delays suffered by the applicant, none of which were of his own making - an acquittal was the appropriate outcome. We have considered all these matters and ultimately conclude that the future disposition of the subject counts is a matter for consideration by the Director of Public Prosecutions.

22 We order, therefore, that the application for leave to appeal against conviction be granted, the appeal be treated as heard instanter and allowed, the convictions quashed and the matters remitted for retrial.

23 A certificate is granted to the applicant.

[1] [1997] 2 V.R. 609 at 611-612.

[2] [1999] 3 V.R. 618.

[3] ibid. at [22] and [23].

[4] At 612.

[5] (1993) 30 N.S.W.L.R. 510 at 516.

[6] [1997] 2 V.R. 609 at 614.

[7] ibid.

[8] ibid.

[9] [2002] VSCA 164; (2002) 5 V.R. 517.

[10] See R. v. Wilkes and Briant [1965] VicRp 64; [1965] V.R. 475 at 479.

[11] See R. v. B.A.H..