R v C H S [2006] VSCA 19

Court of Appeal (Vic)|2006-02-21|Before: WARREN, C.J., ORMISTON AND EAMES, JJ.A.

CRIMINAL LAW -- Leave to Appeal against conviction and sentence -- Applicant convicted of 11 counts of sexual offences committed against step-daughter at trial -- Appeal allowed -- New trial ordered.

EVIDENCE -- Propensity evidence -- Cross-admissibility of evidence between counts -- Crimes Act 1958, s.398A -- Directions to the jury by the trial judge -- Whether directions appropriate.

1 The applicant seeks leave to appeal conviction and sentence on a number of sex related offences concerning his step-daughter, TG, when aged between 11 and about 15 years. The applicant, born on 21 April 1964, was aged between 33 and 38 at the time of the various offences.

2 On 20 August 2004 in the County Court sitting at Ballarat, a jury returned a verdict of guilty on 11 counts (counts 1, 2, 3, 4, 5, 6, 9, 13, 16, 17 and 18) and a verdict of not guilty on counts 7, 8, 11, 12, 14 and 15. As for the remaining count, Count 10, during the trial, the prosecutor conceded that there was no evidence to support it. The trial judge therefore directed the jury to return a verdict of not guilty with respect to Count 10.

3 The relevant counts were:

Between 1 January 1998 and 31 December 1998 committing an indecent act with or in the presence of a child under 16.

Between 2 January 1999 and 31 December 1999 wilfully committing an indecent act with or in the presence of a child under the age of 16.

Between 2 January 1999 and 31 December 1999 attempting to take part in an act of sexual penetration with his stepchild.

Between 1 July 2000 and 31 December 2000 committing an indecent act with or in the presence of a child under 16.

Between 1 January 2001 and 31 December 2001 committing an indecent act with or in the presence of a child under 16.

Between 1 January 1999 and 31 December 2001 committing an indecent act with or in the presence of a child under the age of 16.

Between 1 January 2001 and 31 December 2002 committing an indecent act with or in the presence of a child under the age of 16.

Between 1 January 2001 and 31 December 2001 attempting sexual penetration.

Between 1 January 2002 and 27 December 2002 participating in an act of sexual penetration.

Between 1 January 2002 and 27 December 2002 taking part in an act of sexual penetration.

Between 1 January 2002 and 27 December 2002 making or producing child pornography.

Between 1 January 1999 and 27 December 2002 committing an indecent act with or in the presence of a child under the age of 16.

Between 1 January 1999 and 27 December 2002 attempting an act of sexual penetration.

Between 1 January 1991 and 27 December 2002 committing an indecent act with or in the presence of a child under the age of 16.

Between 25 December 2002 and 27 February 2003 marking or producing child pornography.

On 27 February 2003 knowingly possessing child pornography.

4 A total effective sentence of four years and nine months imprisonment was imposed on the applicant. A non-parole period of three years and nine months was fixed.

The Evidence

5 The applicant and his wife, KS, commenced their relationship in about 1998. Occasionally the applicant would stay at the wife's house during the early stages of the relationship, where KS and her children lived. This arrangement continued for about a year. The applicant and his wife were married on 2 January 1999 whereupon the wife moved into the applicant's house with her three children from prior relationships, including the complainant, TG.

6 Evidence was given at trial by TG, her older brother, MG, and her younger sister, SM,1 the applicant's wife, KS, and police witnesses, Robert Larkin and Joseph Chasir. The applicant gave evidence, as did a family friend, David Blower.

7 It was not absolutely clear from the Crown Summary of Evidence and Summary of Facts or, for that matter, the evidence of the complainant, as to which events constituted each of the various counts 1 to 16. However, the evidence of TG covered the period from 1 January 1998 to 27 December 2002. As best as I might identify the acts alleged to constitute counts 1 to 16, I do. There was no issue on the application to this Court as to the counts as presented and the acts alleged to constitute those counts. Indeed, the application was pre-occupied with admissibility; severance of the pornography related counts from the sexual offences related counts; the trial judge's directions of propensity and the use to be made of photographs; and an unsafe and unsatisfactory ground.

Count 1

8 The first incident occurred in 1998 when the complainant said the applicant was in her mother's bedroom, with her mother and the applicant. TG was eleven. She said that she and the applicant were wrestling and when her mother left the room, the applicant pinned her down on the bed, held her shoulders and began hitting her on the left side. TG said the applicant sat on top of her, held her shoulders and was hitting down on her. She was fighting back. TG said she was pushing and yelling and the applicant tried to suck or bite her on the neck. She said she kicked him and tried to get him off her. The complainant ran and checked the area on her neck and found a red and purple mark on the left side of her neck. TG said she heard her mother and the applicant laughing and the applicant say that she, TG, must have sensitive skin. TG said the mark lasted about a week. This conduct constituted Count 1.

9 TG gave evidence that, after this event, she considered the applicant touched her inappropriately. She said he touched her, through her clothes, in the genital region and on her chest. She said this behaviour was every now and then and then became more frequent. TG said that after her mother and siblings moved to the applicant's house, the applicant proposed that TG and her younger sister, SM, bathe with him. TG said she was unsure about this but that her mother said it was alright. Thereafter, TG and the applicant bathed together every night.

10 Shortly after the applicant and his wife married, they and the three children went on holidays on a houseboat at Mildura. TG identified a series of family photographs taken at Mildura. There were a total of three family trips to Mildura but TG was unable to say when the particular photos were taken on which trip.

11 She also described a small tin boat that was attached to the houseboat during these trips. The time of the first trip occurred when TG was about eleven. She said that the small tin boat was used for bathing. Turns would be taken to bathe with the applicant: the mother, the younger sister, SM, and then TG. The brother, MG, bathed by himself, TG said. She said that when the bathing occurred with the applicant in the tin boat both she and the applicant were naked. TG described that the applicant would soap up his hands and wash her then undeveloped chest and genital area. TG said her reaction was to pull away as she felt she could wash herself. Other events described by TG were of naked swimming including when the applicant pulled down the bottom of her bathers and when she tried to cover herself he pulled away her towel, held her and told the wife to fetch a camera, which she did. The consequential photograph was tendered in evidence. TG said that she was kicking and screaming and felt embarrassed at the time.

Count 2

12 When the family returned home from Mildura the first time, the joint bathing activities continued. TG described how the soaping up and washing of her body by the applicant occurred. She said that the applicant rubbed and touched her genital area with his hands. The applicant said it was washing. It occurred every night. These actions constituted Count 2.

Count 3

13 Count 3 related to Count 6 and I will deal with that count later in my reasons.

Counts 4 and 5

14 TG said that when she was in about year 8, the applicant suggested that they should both shave their genital areas. TG said she refused but the next night the applicant proposed the activity again and that she felt she had to comply. The applicant then proceeded to shave her genital area with a razor while she sat on the edge of the bath. This constituted Count 4.

15 TG described that the applicant had her shave his genital area. The applicant had an erection at the time. He took her hand, she said, and placed it on his erect penis. TG said the applicant soaped up his hands and his genital area. This constituted Count 5.

Counts 6 and 3

16 TG said that the shaving activity occurred about once or twice a fortnight over a period of nine or ten months thereafter. She did not resist these activities because she feared getting into trouble with the applicant or her mother. She told her mother she did not want to continue bathing with the applicant when she was in year 9. It resulted in an argument between the applicant and the mother. Suddenly, the mother told TG to get into the bath with the applicant or go to bed. TG said she went to bed and about five minutes afterwards her mother dragged her out of bed by the hair and down the hallway and threw TG into the bathroom and abused her. The applicant was there.

17 TG said she ended up in the bath half dressed. The applicant undressed her, soaped up his hands and touched her breast area. She said he worked his hands down and tried, unsuccessfully, to penetrate her. These acts constituted Counts 6 and 3.

Count 11

18 The bathing activities continued. TG described that when she was in year 10, the applicant digitally penetrated her when washing her. This constituted Count 11.

Count 13

19 When TG was in year 10, she fought with the applicant over the bathing and won out. TG said the applicant described the bathing activities as their "quality time". He asked her to bathe with him wearing bathers. TG refused. She said the applicant then suggested that she have sex with him. TG refused. Thereafter the bathing activities between TG and the applicant ceased. TG then bathed alone or with her mother or sister. She always kept the bathroom door locked. She said sometimes the applicant would use a knife to unlock the door and come in on the pretext of providing TG with a glass of water. At other times he put a camera around the door when TG was bathing or showering and took a random photograph. This activity constituted Count 13.

Count 7

20 TG said that there were times outside the bathing activities when she was digitally penetrated by the applicant. These activities occurred in the kitchen and the lounge room of the house. TG described that, on occasions, the applicant would sit in a chair in the lounge room, naked, covered only by a towel placed so that his genitals could be seen. She said he would fondle her through her clothes. TG described that, on occasions, the first time in being the kitchen, the applicant took her hand and placed it down inside his trousers and underpants at the front. The applicant would move her hand around and rub his genital area. When the applicant was finished he would let her go. TG said the placing of her hand by the applicant inside his trousers was a regular occurrence. Sometimes, she said, the applicant's penis was flaccid and other times erect. TG was in high school when these events occurred, but she could not say precisely how often. This activity constituted Count 7.

Count 8

21 TG further described that the applicant would walk around the house naked, or undress in the hallway before bathing, or sit at the table covered by a towel only. TG said sometimes the applicant would fondle himself. On the first of many occasions, she said, she was in the kitchen and the applicant, being naked, pushed her down onto her knees and dangled his penis in her face and said "I dare you to suck it". TG said this happened frequently, commencing when she was probably in year 7. This constituted Count 8.

Counts 9 and 12

22 TG further described that when she was in year 10 the applicant called her into his bedroom. He told her to lie down on the bed on her stomach. She did and had her head on the pillow. TG said the applicant pulled up her top, undid her bra and started to massage her back. She said he leant down and pulled her pants halfway over her buttocks and massaged her "tail bone area". TG said he then rolled her over and fondled her breasts. This constituted Count 9. After a while the applicant pushed a pillow into her face and digitally penetrated her vagina. This amounted to Count 12.

Counts 14 and 15

23 TG also described events that started when she was in year 7. The applicant, she said, came into her bedroom to say good night when her younger sister was already asleep. He sat on the edge of the bed beside TG, placed his hands on her body and started to fondle her breasts and genital area. This was Count 14. The first time the applicant did this, the applicant tried to stick his tongue into the mouth of TG. She said that a couple of times on these occasions, the applicant tried to digitally penetrate her but that she would make a noise and the applicant desisted. The bedroom activities continued up until and during 2002 when TG was in year 10. This constituted Count 15.

24 TG left the applicant's home on 27 December 2002. She finished year 10 that year. She went to live with her natural father. Eventually, she told her father's girlfriend about events relating to the applicant that resulted in TG going first to a solicitor and then to the police.

Counts 17 and 18

25 The prosecution led evidence as to the taking and collection of photographs by the applicant of his step-children and wife and in particular, of TG. The evidence consisted of a book of 17 photographs (exhibit A), a book of six photographs (exhibit B), a book of six photographs of the applicant's house2 and some negatives.3 The book of photographs being exhibit A were individually identified by TG as a series of photos showing: TG just before her year 10 formal when she was 15 years of age (photo 1); TG and her brother, sister and the applicant in the tin boat attached to the houseboat at Mildura (photo 2); TG on the houseboat (photo 3); the applicant ducking TG in the river (photo 4); TG swimming naked in the Murray River (photo 5);4 TG bathing in the tin boat with her sister, SM (photo 6); the brother, MG, at the rear of the houseboat washing himself (photo 7); two photos of SM naked on the houseboat (photos 8 and 9); TG on the houseboat (photo 10); TG asleep on the houseboat (photo 11); various photos of TG and her siblings on and around the houseboat; and family photos in the applicant's home. As TG was taken through the photographs in exhibit A in her evidence, she identified the photographs at Mildura but was unable to say on which of the three family houseboat trips the photographs were taken.

26 The photographs that constituted exhibit B were developed from a film that police found in the applicant's bedroom when the police searched the family home. SM described the photos as showing: SM displaying a new pair of underpants (photo 1); her mother, KS, dressing (photo 2); SM in the kitchen undressed, probably just after a bath, (photo 3); an unidentified photograph of a girl's genital area (photo 4); SM wearing new bathers (photo 5), and then pulling up the bottoms after the applicant pulled them down (photo 6). SM said or suggested that the applicant took the photographs numbered 1 and 2. SM said she did not know who took photographs numbered 3 and 4. She said the applicant or her mother took photos 5 and 6. SM said that sometimes the applicant played with her, and the others, and "he pulls his undies down, like, to get our attention". She said, in that context, that she (having had her underpants pulled down) was pulling them up in photo 6 of exhibit B. The defence tendered boxes and bundles of family photographs5 as evidence that exhibits A and B were but part of a large series of family photographs.

27 It was the applicant's defence at trial that he accepted nudity as a form or mode of behaviour. It was his case that an acceptance of nudity is not pornographic or obscene. The applicant categorically denied the allegations that he had ever sexually abused or sexually penetrated his step-daughter, TG.The applicant underwent two records of interview. At the time of the first interview, the film from which the photos in exhibit B were developed was not then processed. He also gave evidence at the trial.

28 The applicant admitted the incident constituting count 1, but said TG was in bed with him and he was just "horse playing". He said he was embarrassed by the mark left on the neck of TG. He admitted sometimes touching TG through her clothing but said it was "just a flick on the nipple" and that when he did that, she would give him "a flick back". The applicant also admitted bathing with TG and described the activity as "a natural thing". He said he bathed with all the children. His bathing with TG started, he said, when she was 12 and continued until she was 15. The applicant said the bathing activity was "quality time" and "talk time" when he and TG would talk about work and school. He said that he touched TG on the breasts once when he was soaping her up in the bath and commented on the size of her breasts, but he said it was just a "flick" and not sexual. The applicant admitted that on a couple of occasions of bathing with TG he had a partial erection. He denied touching the genital area of TG, save for one time when he moved his foot in the bath and then put his leg over the bath edge. He denied having an erection in the bath with TG.

29 The applicant said that TG started shaving and was shaving "everywhere". He said that he sometimes shaved his own genital area and suggested to TG that she do so for reasons of comfort. He denied that he forced TG to have her genital area shaved or that she shaved him. The applicant said there was one episode in the bath when TG took a razor and directed it at his groin area; he took the razor and threw it away.

30 The applicant admitted that a time came when TG refused to bathe with him and that there was an argument between his wife and TG over it. He said his wife forced TG to have a bath with him but that the practice stopped shortly after that as TG was, by then, too grown up. The applicant said that at that stage, he installed a lock on the bathroom door to give TG privacy. He admitted opening the lock a few times when TG was in the room to get something in the bathroom, provide a towel or take a "snap" with a camera.

31 The applicant admitted walking around the house naked and sitting down in the loungeroom of the house to "cool down" after a bath. He denied the allegations of TG as to touching his genitals in front of her, suggesting she touch or suck him, removing her bra and touching her, asking her to have sexual intercourse with him, or fully kissing her on the mouth. The applicant admitted putting his tongue in the lips of TG but said it was only "her inner lip" when he poked his tongue out for fun.

32 The applicant admitted taking various photographs of his family, including when they were naked. He also said that he took photographs by surprise, including photographs of TG wholly or partly undressed. When shown the photographs, he said that they were taken at random or for a, presumably planned, display board on the eighteenth or twenty-first birthdays of the children. He said he took most of the photos save the photos constituting exhibit B. When shown the photographs that constituted exhibit B, the applicant said he did not know or could not recall who had taken the photographs.

Background matters

33 When the applicant was first presented for trial, he was charged with 12 counts of indecent assault with a child under 16, three counts of attempted incest, two counts of incest, two counts of producing child pornography and two counts of possession of child pornography. Relevantly, Count 14 of the original presentment was one of an indecent act on the younger step-daughter, SM. There were also pornography counts being Counts 19 and 20. When the matters came on for trial, defence counsel made an application for the original presentment to be quashed on the ground that it was invalid, submitting that the counts relating to child pornography could not be joined in the same presentment as the remaining counts. In the alternative, counsel for the applicant contended that the presentment ought to be severed. The trial judge ruled that the presentment was both valid and ought not e be severed.

34 The submission was that Counts 14, 19 and 20 (on the original presentment) were concerned with the making or production of child pornography and could not be used to demonstrate propensity to commit the sexual acts that were the subject of the other counts relating to TG. The applications were refused by the trial judge, who ruled that the presentment was valid and ought not be severed.

35 Two days later, the prosecution filed a new presentment,6 the second presentment, preferring ten counts of indecent acts with a child under 16, three counts of attempted incest, two counts of incest, two counts of producing child pornography and two counts of possession of child pornography. . A proposed Crown exhibit (at that stage, exhibit B), consisted of a series of family photographs of the applicant and his step-children which were said by the Crown to show criminal intent. An application was made to exclude photograph number 11, allegedly depicting SM and used by the prosecution relating to the child pornography counts. The application was refused. The trial proceeded and ultimately the jury was discharged without verdict.7 A new trial commenced and four days into the trial the trial judge granted leave to the Crown to amend eleven of the counts on the then presentment.8 At the close of the applicant's case, the trial judge directed the jury to return a verdict of not guilty on Count 10.

36 It is appropriate to set out in some detail the matters relating to the original presentment.

37 The original presentment concerned 20 counts. Counts 1 to 17 of the original presentment related to the complainant, TG. Of those, Counts 1 to 13 and 15 to 17 alleged certain sexual acts between the applicant and TG. Count 14 was a pornography related count but concerned with TG. Counts 18 to 20 of the original presentment related to the applicant's other step-daughter, SM. Count 19 related to pornography matters involving SM. Count 20 related to possession of child pornography. The trial judge ruled against the challenge to the presentment and refused to sever the counts. His Honour did so on the bases that the counts as joined had a common factual origin or nexus9 and that the pornography pointed towards that nexus and the contemporaneity of the conduct of the applicant. The trial judge also observed that there were five elements common to both complainants: first, both were step-daughters of the applicant living at the relevant time in the same house; secondly, the applicant engaged in the same conduct with both step-daughters; thirdly, the applicant showed an "unhealthy interest" in both complainants' genitalia; fourthly, the applicant took photographs of both complainants; and fifthly, the evidence demonstrated a consistent pattern of conduct. Ultimately, his Honour concluded that no injustice would be done in admitting the evidence relating to counts 18 to 20 if an appropriate direction was given to the jury.10

38 Subsequently, the prosecution filed a fresh presentment. It deleted count 2,11 it also deleted count 18 being an indecent act on the other step-daughter, SM. There was a consequential renumbering of the counts as already set out in these reasons.

39 In the charge, the trial judge directed the jury on counts 13, 17 and 18, the "pornography charges". His Honour directed as to the statutory provision:12

"child pornography means a film, photographs, publication or computer game that describes or depicts a person who is, or appears to be, a minor, engaging in sexual activity or depicted in an indecent sexual manner or context".

40 The trial judge noted that with one exception, namely count 13, the photos were taken of SM and then directed:

"In relation to those photographs that are in existence and relate to SM your task is to say whether they show a minor engaging in sexual activity or whether they show a minor depicted in what you, the jury, consider to be an indecent act, sexual manner or conduct."

41 His Honour then proceeded, in due course, to direct the jury on uncharged acts and in so doing, dealt in part, also, with the matter of propensity:

"So there was evidence of sexual activity, which, if you accept, is in addition to the sexual activity actually alleged on the counts on the presentment.

"As a matter of law, that evidence, which the lawyers sometimes call 'evidence of uncharged acts', meaning that they are not on the presentment, that evidence is admissible as an exception to the general rule, excluding that type of evidence. It is admissible for two reasons. The first reason is that you may, not must, but may, if you accept that evidence, use it to determine whether there was a sexual relationship in existence between the accused and TG. If you are satisfied that such a sexual relationship did exist, then you could use that to assist you in determining whether you accept the allegations of the complainant, TG. The law recognises what is sometimes termed as "the guilty passions of an adult for a child". If you find that to be established by the evidence here, then you may use it as capable of making more credible the evidence of TG that the sexual activity, which she alleges, did take place on the particular occasions reflected in the counts on the presentments.

"... in the long run you must be satisfied of the guilt of the accused of the actual charge or charges brought before you may convict him. You may not substitute evidence of some other incident not the subject of the charge, for the evidence in support of the charge. In this area you must be careful and precise in your processes of reasoning. You may use the evidence of uncharged acts in considering the relationship of the parties and thus the probability or improbability of the charged acts having occurred. But it would be wrong, prejudicial and contrary to law for you to reason that because the accused had engaged in some improper conduct or in some other crime or crimes with which she [sic] charged, then he was the kind of person who was more likely to have committed the crimes he was charged with and to use such a conclusion as evidence that he had committed them or any of them.

"So I repeat, whether you are satisfied, beyond reasonable doubt of the guilt of the accused, something you must decide on the evidence which relates to that allegation, the evidence of uncharged acts can only be used in a limited way as I have described."

42 I turn then to the grounds relied on for the application.

The Grounds Relied on for the Application

Grounds 1 - 4

43 Ground 1 was that:

The trial judge erred in ruling that the evidence relating to counts 17 and 18 was admissible in considering the guilt of the applicant on counts 1 to 16 as propensity evidence under s.398A of the Crimes Act.

44 It is also relevant to consider ground 2 at the same time:

That the trial judge erred in failing to sever counts 1 - 16 from counts 17 to 18 of the presentment.

The trial judge erred in adequately directing the jury as to their consideration and use of the evidence led in support of counts 17 and 18 on counts 1 - 16 and vice versa.

The trial judge erred in failing to direct the jury adequately or at all as to their consideration and use of the evidence contained in exhibit A.

46 It is appropriate to deal with grounds 3 and 4 at the same time as grounds 1 and 2.

47 In essence, the complaint under these grounds was that the trial judge was in error in allowing the evidence on the pornography counts to be used as propensity evidence for the purposes of the sexual acts counts, in effect, for the purposes of "cross admissibility". It was complained that no warning or direction was given by the trial judge as to how the jury might use the evidence on pornography counts in their consideration of the sexual accounts, and vice versa. There was no specific direction of that type. So much was conceded by Mr Hillman for the Crown. It is to be observed that counts 13, 17 and 18 were counts of a similar offence, hence my description of them as the pornography counts. However, Count 13 related to TG, whilst Counts 17 and 18 related to SM. The photos were relied on by the prosecution to show the potential for the kind of offences committed against TG. The evidence for the pornography counts was also relied on to show an unhealthy interest in the genitalia of the applicant's two step-daughters. There was direct evidence that the applicant took some of the photographs in exhibit A. Further, there was the separate set of photographs, found as film in the applicant's home in his bedroom, comprising exhibit B. However, the photos in their form at trial, the exhibit books of photos, were compiled by the police.

48 When the charge is subjected to close scrutiny, his Honour, an experienced trial judge, covered all critical matters: propensity and uncharged acts, the elements of pornography and the photographs as relied on to prove the pornography counts, and importantly, a general direction as to the use of the evidence, in particular, that the jury should give each part of the evidence the importance that they judged it should be given. In these respects, the charge was an uncontroversial one. The judge even gave a Longman warning13 with respect to the delay between the earlier history of events and the eventual complaint, although it was probably unnecessary to do so. In my view, it could be reasonably anticipated that the jury understood, as directed by his Honour, that they were entitled to have regard to the evidence of uncharged acts in the limited way they were directed. Further, on the basis of the evidence direction, I consider the jury would have understood that it would have been wrong for them to reason that because a particular verdict was reached on Count 1, then that verdict and the judgment that lay under it flowed on to all other counts on the presentment.

49 In my opinion, no error has been shown in the trial judge's determination that the probative force of the evidence, that is, as to a guilty passion and an unhealthy interest in the step-daughters, rendered it just to admit it despite its prejudicial effect. The evidence disclosed an unhealthy interest in the genitalia of TG and SM. In my view there was sufficient connection between the conduct of the applicant with TG and the taking of the photographs in exhibit B, including the photos of SM. There was no objection or exception taken to the directions given to the jury on this point. Furthermore, the applicant admitted taking some of the photographs in exhibit A. In my view, that admission was relevant to the admissibility of the exhibit B photographs. Ultimately, it was a matter of weight for the jury. The probative value of the evidence lay in its use to show a guilty passion. An examination of the photographs in exhibit B make that use plain. In my view, once that is established, it is probative and a matter for the jury.

50 Counsel for the applicant argued that it was highly prejudicial to admit the evidence without specific warning or direction to the jury, particularly given the identity issues involved. It is relevant to consider the identity of the photographer of exhibit B. The applicant admitted that he took some of the photographs in exhibit A. SM said the applicant took some or all of exhibit B; an assertion denied by the applicant. If it was necessary, and I am not sure it was so, the propensity warning given by the trial judge was sufficient and his Honour was not in error in his reasoning.14 In the present case, the question was whether the taking of the photographs evinced a guilty passion, not so much the identity of the person who perpetrated the offence.15 This was a case where the guilty passion in the overall context of ongoing sexual interest and incidents involving step-daughters, but in particular TG, was sufficient to render it just to admit the evidence; and for the directions to suffice in the circumstances.

51 So far as the matter of severance was concerned, there was sufficient nexus in my view between the conduct that constituted Counts 17 and 18. In this respect I reiterate my remarks with respect to guilty passion and unhealthy interest in relation to the step-daughters of the applicant. There was clearly a nexus and in those circumstances it was appropriate for the judge to refuse to sever counts 17 and 18.

52 In my view, grounds 1, 2, 3 and 4 are not made out.

Grounds 5 and 6

53 The fifth ground of appeal was that the verdict on Count 13 was unsafe and unsatisfactory for reasons of latent duplicity and that the evidence did not support the verdict. In ground 6, it was complained that the verdict on count 3 was unsafe and unsatisfactory as it was bad for latent duplicity. It is convenient, therefore, to deal with both grounds together.

54 Count 13 related to the action of the applicant in opening the door of the bathroom when TG was bathing or showering and putting a camera around the door and taking a random photograph. In essence, the complaint under the rubric of this ground was both lack of particularity as to the time of the perpetration of the act and, also, the alleged lack of a warning by the trial judge to the jury. However, TG said in her evidence that she left the applicant's home on 27 December 2002. There was no issue about that. Hence, practically speaking, none of the photos could have been taken after that date. In any event, TG gave evidence in relation to the activities of the applicant but in particular, the actions that constituted Counts 3 and 13. She gave that evidence and was believed by the jury. In my view, lack of particularity does not arise. The real complaint of the applicant lay with the fact that there was no photo to support the evidence to establish Count 13. Whilst that was so, there were, nevertheless, other photographs taken randomly but in circumstances of undress and ultimately, the question of proof was a matter for the jury. In this instance, clearly, TG was believed. The irresistible observation should be further remarked, that juries are entitled to, and do use, common sense.

55 So far as the matter of warning was concerned, I consider that the directions of the judge to the jury as to the use to be made of the evidence was sufficient in all the circumstances. It follows that I do not consider grounds 5 and 6 to be made out.

Grounds 7 and 8

56 The applicant initially relied upon two other grounds (grounds 7 and 8) with respect to counts 7 and 8. However, those grounds were abandoned in the course of argument.

Ground 9

57 The next ground of the applicant was ground 9, that the trial judge erred in failing to direct adequately, or at all, as to lies said to have been told by the applicant.

58 During cross-examination, it was put to the applicant that he told a number of lies to the police in his record of interview and his evidence. The applicant complained that there was no direction by the trial judge concerning the use to which the jury might put the alleged lies. The prosecution, he said, relied upon the lies to demonstrate a "guilty mind". However, in my view, an examination of the transcript reveals that it was a clear case of cross-examination by the prosecutor as to the credit of the applicant and not a matter of consciousness of guilt.16 Lies do not require a specific warning or direction unless relied on as consciousness of guilt. Furthermore, examination of the transcript of final addresses at the trial reveals that the alleged lies that were the subject of ground 9 were never put by the prosecution as demonstrating consciousness of guilt. Clearly, the asserted lies were relied upon solely for the purposes of credit. The whole tenor of the evidence, that is, the questioning of the applicant at trial, was directed to show an inconsistency in his account of events according to his statements in his records of interview and in his evidence at trial. I do not consider error has been made out with respect to ground 9.

Ground 10

59 The next ground relied upon, ground 10, complained that the trial judge erred in his directions to the jury concerning the manner in which they ought scrutinise or consider the evidence of the complainant and the dangers of basing a conviction upon the evidence of the complainant. In effect, the complaint of the applicant was that the trial judge, having determined to direct a Longman warning, did not execute the responsibility correctly and, therefore, the applicant was at a disadvantage. However, no further direction was sought, but in any event, the circumstances of the case were not such that a Longman warning was required. The first complaint was made in February 2003 when TG went to her father's girlfriend, then a solicitor, followed by the police. The first complaint did not include any reference to digital penetration and that came to the fore a little later. However, the period of delay was not in the order of a substantial number of years as occurred in Longman. It is a matter of common sense that the longer the period between the alleged crime and the bringing of it to the attention of the accused, the greater the need for a Longman warning. On the facts in this case, there was no need for a warning given the short

delay. In any event, as there was no need for a warning in the first place, the fact that his Honour gave one (albeit, on the basis of the applicant's submission, it was inadequate), there is on one view a forensic advantage to the applicant in all the circumstances.

60 In my view, no error has been made out. It follows that ground 10 is not made out.

Ground 11

61 A final ground, ground 11, asserting a failure to direct on the part of the trial judge as to motive of the complainant was abandoned.

62 I am not satisfied, therefore, that error has been shown with respect to any of the grounds relied on and the application for leave to appeal against conviction should, in my view, be refused.

63 There was also an application for leave to appeal against sentence. As I am in the minority and the appeal against conviction will be allowed, it is unnecessary to consider this remaining matter.

1 By VATE, she being nine years old ( at the time) and by cross examination at the trial but on an unsworn basis by direction of the trial judge.

4 TG said this photo was taken when the applicant took off the bottom of her bathers.

7 It transpired that one of the jurors was known to the wife of the applicant.

9 Citing R v. Renzella (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke, P., Tadgell & Charles, JJ.A., 7 August 1997) at 10, per Winneke, P.

10 Citing R v. PJO [2001] V.S.C.A. 213 (Unreported, Ormiston and Buchanan, JJ.A. & O'Bryan A.J.A., 28 November 2001) at [28], per Buchanan, J.A.

11 Because the offence, as originally alleged, occurred in NSW.

12 Crimes Act 1958 (Vic) s.67A

13 Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79.

14 See R. v. Tektonopoulous [1999] VSCA 93; [1999] 2 V.R. 412 at 418.

64 For the purpose of considering these applications I have had the benefit of reading the judgments of the Chief Justice and Eames, J.A. For the reasons stated by Eames, J.A. I consider that the application for leave to appeal against conviction should be granted, the appeal allowed, the convictions on all relevant counts be set aside and that it be directed that there should be a new trial on all of those counts with the exception of count 13, on which a verdict of acquittal should be entered. For this purpose I agree with what has been said by Eames, J.A. as to grounds 1 to 6, although I agree in substance also with what the Chief Justice has said on grounds 1,

2 and 6, to the extent that those reasons are not inconsistent with those of Eames, J.A., and I likewise also agree in substance with what the Chief Justice has said on the other grounds. In the circumstances it is not necessary for me to deal with the application for leave to appeal against sentence.

65 Having had the advantage of reading in draft the judgment of the Chief Justice I find myself, respectfully, unable to agree with her Honour's conclusion that the application for leave to appeal against conviction is without merit as to all grounds. It is necessary, therefore, that I set out my reasons, in some detail, for coming to a different conclusion. Although I will broadly adopt her Honour's elucidation of the background to the application and of the evidence placed before the jury it is necessary that I elaborate upon the competing contentions of counsel and that I highlight aspects of the evidence that seem to me to be of particular importance to the outcome.

66 Having concluded that certain of the grounds of appeal on the application concerning conviction should be upheld (namely, upholding grounds 3 and 4 with respect to all counts, and - on a discrete and additional basis concerning count 13 alone - upholding ground 5), it becomes unnecessary for me to deal with all of the other grounds of appeal that are addressed in the judgment of the Chief Justice. I have, however, addressed grounds 1, 2 and 6, also. Ground 1 concerned cross admissibility of evidence as between counts. Ground 2 concerned severance, and counsel for the applicant submitted that should this court conclude that there ought be a re-trial then the court should rule that counts 17 and 18 ought be severed from the presentment and be the subject of a separate trial. As will be seen, I reject the submission that this court should so order. Ground 5 raised a discrete challenge to the conviction on count 13 alone and as to that count I have concluded that the conviction should be quashed but the count should not be subject to re-trial. Ground 6 raised a discrete, but groundless, complaint that the verdict on count 3 was unsafe.

67 Whether or not my conclusion that the application for leave to appeal against the convictions should be granted and the convictions be quashed represents the majority view of the Court it would nonetheless remain inappropriate that I address the application for leave to appeal against sentence.

Ground 2: Failure to sever counts 1-16 from counts 17-18.

68 I agree with the learned Chief Justice that ground 2 is without merit but it is appropriate to give my own reasons for so concluding.

69 Rule 2 of the Rules in the Sixth Schedule of the Crimes Act, which by s.367 have effect as though part of the Act, provides:

"Charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character".

70 Rule 2 should be given a liberal interpretation consistent with the policy underlying it of enabling charges to be conveniently dealt with and disposed together provided that the accused is not unduly prejudiced or embarrassed at trial17. All that is ordinarily required is that the counts have a common factual origin or there be a sufficient connection or nexus between them18.

71 The contention made to the judge that the joinder of the counts offended Rule 2 is not pursued on this application, however it is contended that the judge ought to have upheld the alternative application and exercised his discretion to sever the presentment. The question of severance fell to be addressed by reference to s.372(3), (3AA) and (3AB), which read as follows:

"(3) Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.

(3AA) Despite sub-section (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together.

(3AB) The presumption created by sub-section (3AA) is not rebutted merely because evidence on one count is inadmissible on another count."

72 The prosecutor conceded that the pornography offences, counts 13, 17 and 18, were not "sexual offences" within the meaning of sub-section (3AA)19. The Crown could not, therefore, rely on the presumption that all of the counts should be tried together. Nonetheless, the prosecutor submitted that it was an appropriate case for joinder of the counts in the one presentment.

73 The onus rests on the person contending that a presentment ought be severed to satisfy the trial judge that it is both desirable and practicable to do so in order to ensure a fair trial20. The decision involves the exercise of a discretion and the ordinary principles governing appellate review of a discretionary decision apply21.

74 In cases where there are multiple complainants the decision as to severance is not determined, but is often appropriately influenced, by the related question of cross-admissibility of the evidence of one complainant on the counts involving other complainants22. Where evidence on one count has relevance in proof of another count, beyond showing mere criminal propensity, then it would be admissible on a separate trial of the other count, so there would be no point in ordering separate trials23. Where the evidence as to one count is not admissible on another then the exercise of the discretion is made against the background that it is practicable to order separate trials, but it nonetheless remains for the applicant to satisfy the judge that there is a reason to order severance24. The mere fact that the evidence on one count is inadmissible on another does not determine the question of severance; the judge must consider the prejudice to the accused which will arise and assess whether that prejudice can be removed by an appropriate direction to the jury against misuse of the evidence on one count in proof of another25.

75 In the present case, once the count of committing an indecent act with or in the presence of SM was removed from the presentment there were not, strictly speaking, multiple complainants, although the judge in his ruling continued to refer to "both complainants". Although the pornography counts did not have a "complainant", as such, the case was conducted on both sides as though there were two complainants. The evidence called in support of counts 1-16, for which TG was complainant, included nude photographs of SM. Count 13 involved a pornographic photograph of TG and counts 17 and 18 involved pornographic photographs of SM. I agree with Mr Meredith that the case ought be treated as carrying the same risks of prejudice as might arise in a trial of sexual offences concerning multiple complainants. The judge seems to have adopted that approach, and appropriately so, since both of the young girls gave evidence at the trial, broadly supporting the counts that concerned them. Indeed, Mr Hillman did not seek to contend otherwise.

76 Assuming, therefore, that this may be regarded as a trial involving multiple complainants the question arises whether the evidence concerning the counts relating to each complainant was cross-admissible. It is implicit from his ruling that the judge concluded that it was, and, in my view, rightly so (for reasons which I shall set out in the next section of these reasons, where I address ground 1). That conclusion points strongly to the correctness of the decision not to sever the presentment, and in my opinion, no error has been shown in the exercise of the discretion not to sever the presentment, provided that - as, indeed, his Honour expressly predicated his decision - there would be a direction to the jury to ensure that the evidence was properly used by them when considering each count and that it was not used for impermissible reasoning.

77 Ground 2 is not made out.

78 As I later discuss, it is my view that the conviction on count 13 was unsafe and ought be quashed. As presently advised, however, I see no reason why severance would be more appropriately ordered in the event that count 13 was removed from the presentment on a re-trial. Nonetheless, in the event of a re-trial then the question of severance would appropriately be addressed by the trial judge upon consideration of the evidence and the counts on the presentment at that time.

79 My conclusion that no error has been shown in the judge's rejection of the severance application is predicated on the fact that the evidence was cross admissible on all counts and it is therefore appropriate to consider the question of cross-admissibility in more detail.

Ground 1: Cross-admissibility and propensity evidence.

80 In opposing the application to quash the presentment the prosecutor also addressed the alternative application for severance, and in the course of his submissions contended that the evidence on counts 17 and 18 was admissible on counts 1-16 and vice versa. The respective arguments as to admissibility were not fully developed on either side, however, and the judge did not expressly mention cross-admissibility, but it was implicit in his rulings against quashing the presentment and against severance that he regarded the evidence on all counts as cross-admissible.

81 The oral evidence of TG relating to counts 1-16 was supported by the photographic evidence contained in Exhibit A. In her evidence the complainant TG was taken through each of the 17 photos in the exhibit. Photographs 1 to 13 were taken during a house boat holiday on the Murray River and showed TG, her sister, SM, her older brother, and also the applicant, naked or partially dressed, swimming, bathing in an aluminium boat, or on-board the houseboat. Photographs 8 and 9 showed the younger sister, SM, alone and nude, the latter photo showing her pubic area. Photograph 13 showed TG naked, holding her hands and a small cloth across her pubic area, but with her breasts bared. In answer to questions during the record of interview the applicant accepted that he took this photo and said that it showed TG "hiding" in that "She doesn't - yeah, she's hidin' her private parts so it wouldn't be taken'".

82 Photographs 14 to 17 were of particular importance, and were taken in the family home. Photos 14 to 16 were taken in the bathroom while TG was naked in the bath and photo 17 showed her asleep on her bed, skimpily clothed, with her legs apart and her hand close to her crotch, but without exposure of her genitals.

83 In submissions on the preliminary applications for quashing the presentment and for severance the prosecutor made reference to photograph 14. As the prosecutor observed, photo 14 showed TG looking startled, so it seemed, when photographed, alone, in the bath at her home. The prosecutor said that the Crown could not say that it depicted the event that constituted count 13 (as later re-numbered) and, thus, no count on the presentment actually related to that photo.

84 When TG gave evidence in chief she said it was her sister SM who was depicted in photo 14, not herself. She said, however, that it was herself, nursing her baby brother on her lap, in the bath in photos 15 and 16. The applicant agreed with the police interrogator that in these photos TG had her arms across her breasts in an attempt to cover herself. Contrary to her evidence in chief, when cross-examined TG accepted without demur that it was herself shown in photo 14, as well as in the next three photos. The bath water in photo 14 was cloudy and TG's genitals were not clearly shown, thus the photograph might well have been incapable of being considered by the jury to be pornographic. Certainly, the Crown did not assert that it was pornographic.

85 Exhibit B comprised six photographs, the first two showing both TG and SM in a bedroom, in nighties, and in the first photo both were holding the one pair of black panties. Photo 3 showed a naked pre-pubescent girl, the photograph not showing her face but showing her chest to her feet, with her genitals exposed. In his evidence the applicant agreed that that was probably SM in that photo. Photo 4 was a close-up photograph of a vagina, taken from behind and showing an adult's fingers holding the skin near the buttocks, in circumstances suggesting an indecent purpose. In the absence of explanation its pornographic character seemed plain. The Crown contended that it was the body of SM shown in photos 3 and 4. In his record of interview the applicant said that he did not recall taking those photos and he did not know who did. He said that if he had taken photo 3 then it would have arisen when he was "probably walkin' around the corner and just snappin' the camera, not knowin'". He said that he did not recall taking photo 4 and whilst agreeing that the hand in the photo had similarities to his own, said, "as far as I know, that is not my hand". In her VATE interview, which constituted her evidence in chief, SM said she could not remember who took these photos but it was probably her mother or the applicant. In his sworn evidence the applicant positively denied being the photographer.

86 As Buchanan, J.A. held in R. v. PJO, the question whether propensity evidence was admissible requires the judge to assess the probative force of the evidence against its prejudicial effect26. That decision was considered and followed by his Honour. The judge also had regard to s.398A. That section reads:

"398A. Admissibility of propensity evidence

(1) This section applies to proceedings for an indictable or summary offence.

(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in subsection (2).

(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.

(5) This section has effect despite any rule of law to the contrary."

87 In my opinion, the evidence on counts 1-16 clearly had probative force in proof of counts 17 and 18, and vice versa. Indeed, in my opinion, the probative value of the evidence on counts 1-16 in proof of counts 17 and 18 was greater than the judge attributed to it, or in the use made of it by the prosecutor in his final address to the jury.

88 As Winneke, P. held in R. v. Tektonopoulos27, s.398A does not sweep away the common law, and before propensity evidence is admitted it must be shown to have such probative force as to justify its admission despite its prejudicial capacity. The President noted that there are many categories of propensity evidence and the probative force and prejudicial effect must be assessed on a case by case basis. One accepted basis for admission of propensity evidence was where it served to show a guilty relationship and sexual passion held by the accused towards the complainant. In R. v. Best 28Callaway, J.A. observed that propensity evidence tends to fall into one or other of two categories, similar fact evidence or relationship evidence, although as his Honour made clear, the categories are somewhat fluid and are not confined. In this case the probative value of the evidence, as identified by the judge, tended to fall into both categories.

89 In his ruling rejecting severance the judge did not expressly deal with the question of the cross-admissibility of the evidence but his reasons suggest that he accepted the contention of the prosecutor that the evidence was indeed cross-admissible. The judge held that the evidence had probative value that outweighed its prejudicial capacity to support propensity reasoning.

90 As to the evidence of the photographs in Exhibits A and B, his Honour held that they bore on the relationship between the accused and both stepdaughters and were capable of demonstrating that he had a guilty sexual passion towards them. Such evidence does have probative force as tending to make it more likely that the subject offences were committed29, and is frequently admitted in sexual offence cases30. Additionally, the judge held that there were common features in the conduct alleged with respect to both complainants, including an apparent unhealthy interest in their genitalia and, on the Crown case, the fact that he photographed both when nude and their genitalia was exposed. Evidence of a common pattern of conduct, or common modus operandi, or of an underlying unity as between the allegations concerning different complainants may offer mutual support for the accounts of each complainant31. Furthermore, as the judge later directed the jury, the evidence of uncharged acts relevant to counts 1-16 enabled the jury to place the evidence of TG into a more realistic and complete context32, and, although his Honour did not expressly say so, it had the same value for counts 17 and 18 and vice versa.

91 Although, for those reasons, alone, the evidence was properly held cross-admissible it had additional and more direct probative value, in my opinion. Exhibit A, in my opinion, lent direct probative support to the allegations in counts 17 and 18 concerning SM. Thus, photograph 8 in Exhibit A depicted SM naked, asleep face down on a bed. In his record of interview the applicant admitted taking that photograph and implied that he also took the next one, too, which showed SM, standing naked, her genitals exposed, and holding a pair of panties. As to that photo he said it showed SM "puttin' her pants on, still standin' naked".

92 The admission (or non-denial) of the applicant that he had taken the photographs of SM that appeared in Exhibit A was, in my opinion, relevant and increased the probability that not only was it SM who was depicted in photos 3 and 4 of Exhibit B but that the applicant took those photos, too. Likewise, the photographs in Exhibit B, if accepted to have been taken by the applicant, arguably disclosed a prurient interest in the genitals of both girls, which rendered it more likely that the photograph to which exhibit 13 related was pornographic33. The photographs in Exhibit B were also capable of supporting the conclusion that the conduct of the applicant towards TG was not merely one of non-prurient nudism, as he claimed, but was sexual, as the prosecution claimed. Furthermore, as the judge rightly held, the photos in Exhibit B were capable of showing a pattern of conduct and as supporting the inference that SM was being groomed sexually, which in turn added weight to the evidence of TG which suggested that she had been groomed from a younger age until acts of indecency, and then incest, commenced.

93 Although he did not, ultimately, rely on the evidence for this purpose in his address to the jury, the prosecutor submitted to the judge that the evidence of Exhibit B was admissible in support not only of count 13, the pornography count involving TG, but also the other 15 counts relating to TG. He submitted that the evidence on counts 17 and 18 (and when making this submission he included the count of indecent act against SM, which then remained on the presentment) was admissible on counts 1-16 because it showed a pattern of similar conduct towards SM and grooming of SM similar to the conduct described by TG as happening to her, and thus lent weight to the credibility of TG's account. The evidence on counts 17 and 18, he submitted, showed similar interest in the genitals of the two girls and rendered it more probable that the events described by TG occurred. In my opinion, those submissions had merit.

94 The decision to admit propensity evidence is not one taken in the exercise of a discretion, but involves a question of law, and thus the appeal court may determine for itself whether the evidence was properly admitted34. In my view, the evidence was properly admitted as the probative force of the evidence outweighed its prejudicial effect, subject to there being adequate directions given by the judge against impermissible use of the evidence, that being the precondition highlighted by Winneke, P. in Tektonopoulos35 and by Buchanan J.A in PJO36. The evidence on counts 17 and 18 was properly admitted even if its use was to be confined (as the judge seems to have confined it) to merely showing relationship and a pattern of conduct which added support to the evidence of TG. Likewise, the evidence on counts 1-16 was properly admitted to show the guilty passion of the applicant towards MG and a pattern of conduct which made it more likely that it was the applicant who took the photos in Exhibit B.

Grounds 3 and 4: Propensity directions and directions as to use of evidence

95 Ground 3 complains that the judge failed to adequately direct the jury as to the use they could make of the evidence relating to counts 17 and 18 in support of the counts 1 to 16, and vice versa. Ground 4 complains that the judge failed adequately or at all to direct the jury as to the use they could make of the evidence contained in Exhibit A. Although these grounds refer to directions as to the use which should have been made of evidence it was accepted that the grounds also complained that the jury should have been directed as to the use that they could not make of the evidence. In that regard these grounds complemented the complaint raised under ground 1 that the evidence was not cross-admissible as propensity evidence by virtue of s.398A of the Crimes Act 1958.

96 Where propensity evidence is admitted for the limited purpose of showing the relationship between the accused and complainant then the jury must be directed as to the limited use they might make of it37. In this case the judge did indeed give clear directions as to the use that could and could not be made of the evidence of uncharged sexual acts. Some extracts from his Honour's charge concerning this topic are set out in paragraph [41], above, in the judgment of the Chief Justice. I complement those passages by noting that before giving the directions set out in the first of the paragraphs in [41] the judge identified the uncharged acts as acts which concerned sexual conduct between the applicant and TG. He said there were two categories of uncharged acts: first, conduct during the Mildura houseboat trip and, secondly, other occasions mentioned in the evidence of TG where the applicant engaged in sexual activity but which was not the subject of a specific charge. In a passage of the charge which followed the first paragraph set out in [41] the judge told the jury the second use they could make of the evidence was that it allowed the evidence on the counts to be put into a more complete and realistic context, but warned the jury that it could be used only for the limited purposes which he had stated.

97 The judge told the jury that the evidence of uncharged acts enabled "the evidence relating to the alleged offences on the presentment" to be placed in a realistic context and that they could use the evidence as tending to show a sexual relationship or guilty passion existed and, if so, whether that that made the evidence of TG more credible as to the sexual offences against her "on the particular occasions reflected in the counts on the presentment". The directions, although expressly related to the counts concerning TG nonetheless appeared to acknowledge that evidence of uncharged acts might be relevant, for limited purposes, not only in proof of counts 1-16 (concerning TG) but also counts 17-18 (concerning SM), although the directions were by no means clear in that regard.

98 Thus, and without confining discussion to the counts concerning TG, his Honour directed the jury that they could use the evidence of the uncharged acts in considering the relationship "of the parties" and thus the probability or improbability "of the charged acts" having occurred. He then warned the jury that they could not use the evidence that the applicant had engaged in "some improper conduct or in some other crime or crimes with which [he] wasn't charged" so as to conclude that he was the kind of person likely to have committed "the crimes he was charged with", or some of them.

99 No complaint is made about the directions given concerning the limited use which could be made of evidence of uncharged acts. However, no direction at all was given as to the use that could be made of the evidence on counts 1-16 in proof of counts 17 and 18, or vice versa. As I have said, that evidence was capable of being used for more directly probative purposes than the judge allowed, so no disadvantage was done to the applicant's cause by the failure of the judge to direct the jury as to the use to which the evidence of the charged acts could be put. The difficulty I see, however, is twofold. First, the directions given as to uncharged acts did not clarify whether the jury were to treat the evidence contained in Exhibit A as evidence of uncharged acts. Secondly, the judge did not direct the jury as to the use which could not be made of the evidence relating to counts 1-16 in proof of 17-18 and vice versa, in particular as to prohibited propensity reasoning. Given the way the case was conducted those omissions were serious, in my opinion.

100 As to Exhibit B, the applicant was pressed in cross-examination38 to admit that he had taken the arguably obscene photos of SM, in particular photos 3 and photo 4. The applicant said that judging from the length of head hair, which was just visible, photo 3 apparently showed SM. He denied taking the photo. Photograph 4 he suggested might have depicted a baby, but he denied taking it. The prosecutor then asked these questions and received these replies39:

"Have a look at Photo 4, would you take one like that? Are you the sort of person that would take a photo like that? - - - "Is that the one you want? Is that four?

No, Photo 4. Just go to the other book with Exhibit D (sic). Are you the sort of person that would take a photo like that? - - - I would not think I would be, no.

What do you mean you wouldn't think you would be? Either you are or you aren't ...? - - Well I'm not then."

101 Those questions clearly encouraged propensity reasoning and amounted to an invitation to the jury to consider whether he was the kind of person likely to produce pornography. If the jury were satisfied that he committed any of the offences in counts 1-16 then it was highly likely that they would conclude, by reason of that evidence and their conclusion as to those counts, that he was indeed the kind of person who would have committed the offences in counts 17 and 18. Furthermore, the jury might well have been encouraged to reverse the process, by deciding that if he was the photographer in counts 17 and 18 then he was the kind of person likely to have committed the other counts on the presentment. It had to be made clear to the jury that propensity reasoning either way was not permitted, whether the propensity reasoning flowed from the evidence of uncharged acts or of charged acts.

102 In making his ruling on the severance application the judge expressly said that he would give a propensity direction as required in R. v. PJO40. In that case there were multiple complainants and the evidence of one complainant was capable of being corroborated by that of the others by reason of the improbability of the coincidence of similar false allegations. Buchanan J.A held that in addition to a separate consideration direction a propensity direction was required, warning the jury not to reason that if he committed the offence against one complainant he was the kind of person likely to have committed offences against any of the others.

103 As I earlier said, although SM was not strictly speaking a "complainant" for counts 17 and 18, nonetheless - for the purpose of considering what directions were required to ensure a fair trial - she should be treated as such, since there were separate counts which related only to conduct concerning her and she gave evidence relevant to those counts. The risk of misuse of evidence by the jury would therefore be similar to the situation of two complainants. Thus, the present case may be regarded as one where there were multiple complainants but where the evidence was cross-admissible as between counts.

104 Where there are multiple complainants and the evidence is not admissible as between counts then a propensity direction will generally be required41. In the case of multiple sexual counts involving a single complainant a propensity warning would generally not be required42. What then is required, in the case of multiple complainants and cross-admissible evidence?

105 The situation in this case does not fall precisely within the four categories discussed by Callaway, J.A. in R. v. DCC43 as potentially requiring a propensity direction, but the fourth category is closest. His Honour held:

"Fourthly, there may be multiple counts on the one presentment and more than one complainant and the evidence in relation to the complainants, or some of them, may be cross-admissible as similar fact evidence. In that case, too, a propensity warning is required. The need for it may be greater than in other cases, first, because the risk of prejudice is ordinarily at its highest in a similar fact case, and secondly, because, depending on the nature of the similar fact evidence, it may be necessary to explain to the jury the difference between probability reasoning, which is permitted, and propensity reasoning, which is not".

106 As Callaway, J.A observed in R. v. Best_44,_ considerations relevant to the need for a propensity direction when similar fact evidence is in issue do not necessarily apply to all categories of propensity evidence. Nonetheless, as the passage from DCC suggests, Callaway, J.A. was not asserting that it was only when similar fact evidence was involved that a propensity direction should be given in a case involving multiple complainants and cross-admissible evidence. Indeed, as his Honour made clear in R. v. J (No.2)45, although evidence relating to uncharged acts and charged acts was admitted for different purposes (to show, respectively, relationship/guilty passion, on the one hand, and for the purpose of securing a conviction on a count, on the other) in both cases there is a risk of impermissible propensity reasoning by the jury, which risk necessitated a propensity warning. As Callaway, J.A. observed in R. v. Glennon (No.3)46, there is a marked risk of propensity reasoning in cases of alleged paedophilia.

107 Southwell, A.J.A. held in R. v. T47 that it will generally be impermissible for a jury to reason towards guilt by treating evidence that the accused has committed other offences as demonstrative that the accused has an inclination towards committing the offence in question, and it was that sort of reasoning which the prosecutor invited in this case. In R. v. D 48Chernov, J.A. cited R. v. T49, R. v. J (No.2)50 and R. v. TJB51 as authority for his conclusion that it was "clear enough" that as "a general rule" a propensity warning should be given in any case involving sexual offences against multiple complainants, with respect to the use of evidence as to both charged and uncharged acts.

108 The task in determining whether a direction is required in any case does not require the allocation of a case involving propensity evidence to a rigid factual or evidentiary category but rather, as Callaway, J.A. emphasised in R. v. J (No.2)52, a propensity warning would be required in any situation where it was necessary and practicable to do so in order to avoid a perceptible risk of a miscarriage of justice. Mr Hillman conceded that it would have been better that such a propensity direction had been given with respect to the evidence of charged acts as well as uncharged acts, and also, specifically, a direction not to use Exhibit A by way of propensity reasoning. He contended, however, that the jury would have understood that a direction not to apply propensity reasoning by using the evidence of uncharged acts in proof of any of the counts on the presentment would have equally applied to propensity reasoning deriving from the evidence of charged acts and/or by the use of Exhibit A. Despite the skill and ingenuity which Mr Hillman employed in advancing that argument, it remained unpersuasive.

109 That is not to say that the mere fact that a judge gave a propensity direction only by reference to uncharged acts must inevitably lead to the conclusion that there is a real risk that the jury might draw from that direction the understanding that propensity reasoning is permitted with respect to the evidence of charged acts53. The danger of misuse of the evidence by propensity reasoning must be assessed in each case by reference to the language actually used and against the totality of the directions in the charge and the context in which the directions are given54.

110 If a propensity direction was required, as to charged acts, then an examination of the charge overall might disclose that an adequate warning was in fact given, notwithstanding the fact that the trial judge did not employ language in terms that the jury must not reason from other charged acts that he is "the kind of person" who would have committed the charged offence in question. Although in Victoria the preferred form of a propensity direction should employ the "kind of person" language, a direction in terms similar to those employed in R. v. Beserick55 may be adequate. Thus, a direction that adequately conveys that the jury should not reason that just because the applicant had done something wrong on another occasion it does not follow that he committed the offence in question may be adequate in the circumstances, depending on the language used in the context of the totality of the charge56.

111 That was the conclusion reached by the Court in DCC57, where although a direction in terms of "the kind of man" propensity reasoning was employed only with respect to the evidence of uncharged acts the language used by the judge in his separate consideration direction was in terms very close to that which in Beserick was held to be an appropriate propensity direction concerning the evidence of charged acts. In the separate consideration direction in DCC the judge warned the jury that when considering any count they should not be influenced by "a general view" that if the accused was guilty of one count then he was guilty of other counts.

112 R. v. D58 was another instance where a direction in terms referring to "the sort of man" reasoning was employed only in the context of a discussion concerning uncharged acts, but Chernov, J.A., with whom Phillips, C.J. agreed (the judgment of Tadgell, J.A was to the same effect), held that when taken as a whole the judge had drawn no distinction in his charge between charged and uncharged acts with respect to the danger of propensity reasoning. His Honour said that upon reading the whole of the charge he was not satisfied that the jury would have interpreted the directions about propensity reasoning as having been limited to the evidence of uncharged acts.

113 In this case, however, although the cross-examination of the applicant by the prosecutor clearly invited propensity reasoning from the evidence as to both charged and uncharged acts, the terms of the direction were confined to uncharged acts. After re-reading the whole charge several times, I find it impossible to read the language as conveying to the jury, at all, let alone adequately, that they could not reason that if the applicant committed the offences in counts 17 and 18 he was the kind of man likely to have committed the offences in counts 1-16, and vice versa. Furthermore, the direction given in this case as to propensity reasoning related only to the evidence of uncharged acts led with respect to the counts concerning TG; the danger of propensity reasoning towards proof of counts 1-16 by virtue of the evidence on counts 17 and 18 (and vice versa) was not addressed at all.

114 Mr Hillman submitted that the failure of defence counsel to take exception to the charge in this respect must be taken to reflect that such a direction could only have harmed the cause of the applicant. The failure to take exception, he submitted, reflected the fact that the trial was run on a quite simple issue, namely, whether the complainant TG was lying as to the sexual acts she alleged, and as to whether the applicant was the photographer as to Exhibit B.

115 In assessing whether a direction ought to have been given the appeal court must have regard to the manner in which the trial was conducted and the issues that were fought before the jury59. Nothing at all was said in the exceptionally short final address by the prosecutor about the use which the jury might make of the evidence of one count in proof of another. The defence case was run on the basis that TG was lying as to her allegations of sexual acts and that the only photos taken by the applicant were not obscene, but merely acknowledged good fun and healthy nudity, without any sexual misconduct being involved. The applicant denied that he took the photos in Exhibit B.

116 The failure to seek a direction, by experienced counsel, points to the fact that counsel either did not perceive that the jury might be misled into believing that the warning about propensity reasoning was confined to the evidence of uncharged acts60. It also suggests that counsel did not perceive that a direction was required in order to avoid a miscarriage of justice61. The conclusion that no miscarriage of justice had occurred would even more confidently be drawn where the decision not to take exception can be explained on tactical grounds62.

117 It is possible that defence counsel, in this case, would have preferred not to have attention drawn to the way that the evidence concerning counts 1-16 might have rendered proof of the offences in counts 17 and 18 more probable, and vice versa. However, I do not see any tactical disadvantage that would have flowed from a direction that propensity reasoning was not to be used whether or not the evidence related to charged or uncharged acts. Thus, the failure to seek a broader propensity direction, although relevant when considering whether there was a perceptible risk of a miscarriage of justice, does not seem to me to reflect a tactical decision of defence counsel.

118 I consider that there was a real risk that impermissible propensity reasoning would have been employed by the jury as between the counts concerning TG and SM. Indeed, there was greater risk of such use of propensity reasoning than with respect to uncharged acts concerning TG. In my opinion, it would be inappropriate to apply the proviso to s. 568(1) of the Crimes Act. I could not be satisfied that no substantial miscarriage of justice had actually occurred63. Subject to what I say as to count 13, in my opinion the convictions should be quashed and a new trial be ordered.

Ground 5: Count 13 unsafe and unsatisfactory

119 The evidence in support of count 13 was far from strong. The Crown conceded that there was no photograph in existence to support that pornography count. The conviction was based on oral evidence of TG, who said that after she had refused to continue bathing with the applicant she would latch the bathroom door to prevent entry. The door could be easily opened by placing a knife under the latch. She said that the applicant on a number of occasions opened the door in that way when she was either in the bath or shower, then offered her a glass of water. Sometimes he would bring his camera:

"He'd take photos and even if he (sic) was in - in the bath he would stick the camera around the door and start taking photos."64

120 The applicant agreed that he sometimes, as a joke, put his camera round the corner into the bathroom and took a "blind" shot, but denied that any pornographic photos were taken or were intended to be taken. In his record of interview65 the applicant agreed that on two occasions he had unlatched the bathroom door, using a butter knife, while TG was in the bathroom. One occasion was when he wanted to retrieve something from the basin and on another occasion he entered the bathroom to deliver a towel to her. On yet another occasion he had entered the bathroom with a camera to "snap" a photograph of TG when nude, but he had not forced entry on that occasion, and he had taken the photograph not for sexual titillation but as a joke, in order to obtain a candid photo which he could use on a photo board for her 18th or 21st birthdays.

121 On the application for leave to appeal counsel for the applicant submitted that in the absence of any photograph the evidence was far too weak and speculative to support a conviction on count 13.

122 In assessing whether a guilty verdict was unsafe (or, more accurately, was unreasonable and cannot be supported by the evidence) the appeal court must make it own assessment of the evidence - making allowance for the limitations of not having seen the witnesses - and determine whether in its opinion the accused was proved beyond reasonable doubt to have been guilty of the offence on which the jury convicted him. It is an objective task, to assess whether on the whole of the evidence on the count the court is satisfied that no substantial miscarriage of justice has actually occurred66.

123 The photographs actually tendered in the trial, on both sides, might suggest that for the most part, whenever the applicant wanted to obtain a photo which showed the genitals of TG he did so successfully, but photograph 14 of Exhibit A demonstrated that even a photograph deliberately taken of a naked person in the bath would not necessarily be pornographic. The definition of "child pornography" relevantly required that the jury be satisfied that the photograph depicted a minor "engaged in sexual activity or depicted in an indecent sexual manner or context". As I have said, the Crown did not contend that photo 14 itself constituted an offence.

124 No application was made for a directed acquittal on count 13. Nonetheless, given the vagueness of TG's evidence concerning count 13, and the absence of a photograph which constituted the pornographic image, in my opinion the conviction is unreasonable and cannot be supported having regard to the evidence (to apply the terms of s.568(1) rather than the less apt language of "unsafe and unsatisfactory") and the ground of appeal with respect to that count should be upheld.

125 I add, in conclusion as to this ground, that whether or not there was a count related to the events which constituted count 13 the evidence relied on for that count would have been admissible, in my opinion, as part of the narrative and context of counts 1-12 and 14-16. Furthermore, the evidence of the photographing of TG in the bath would have been admissible in proof of counts 17 and 18, because proof that the applicant was in the habit of photographing a naked minor, and proof of an unhealthy interest in the genitals of his two young step-daughters, was plainly capable of increasing the probability that he was the photographer for Exhibit B also67. Whilst the evidence had probative weight it was also capable of engendering mere propensity reasoning, and in my opinion whether or not a count remained for decision on the presentment the evidence relating to count 13 had to be the subject of a propensity direction. When the jury were charged they were given a propensity direction which did not in terms warn against their use of that evidence for propensity reasoning when deciding other counts.

Ground 6: whether the verdict on count 3 was unsafe and unsatisfactory

126 Although brief written submissions were made in support of this ground it was not the subject of oral submission by counsel for the applicant. It may be dealt with shortly. After the judge had completed his charge to the jury, which had contained a lengthy summary of the evidence, trial counsel for the applicant suggested that the evidence summary as to counts 11 and 12 may have been unclear as to the timing of those alleged offences of incest and may have confused the jury as to when the incidents of digital penetration occurred. The judge agreed to redirect the jury and again read the evidence of TS on these counts to the jury. A short time later the jury returned to the courtroom and the foreman said that some jurors had been making notes to distinguish the various counts but others had not made a note. The foreman asked the judge to give "basically" clarification of "what the actual act was in each count". The judge responded with a short and precise statement of the act constituting each count. After dealing with count 2 (which he said was the first occasion of fondling of her breasts and genital area in the bath) his Honour said that count 3 was also a bath incident where "he attempted to put his fingers in her vagina, but she pulled away". During the course of the summary the foreman asked some questions for clarification and the judge dealt in greater detail with counts 11 and 12. When the judge finished the foreman said that the explanation of the counts had satisfied the jury's query.

127 Mr Meredith submitted that the judge's response gave insufficient particularity as to the occasion which constituted count 3 and the verdict was accordingly unsafe, containing latent ambiguity.

128 It is to be noted that the jury did not ask to have the evidence relating to this count repeated by the judge. The jury asked merely to have a summary of the "actual act" which constituted each of the many counts on the presentment. After this direction was given there was some discussion with the prosecutor, in the absence of the jury, about the summary as it affected other counts, but not count 3. Defence counsel took no exception to the response to the jury question. As Mr Hillman noted in his submission on this ground, the evidence of TS as to count 3 related the attempted penetration to a bath occasion which arose when she was in Year 9 and which followed an occasion of an argument with her mother about her refusal to bathe with the applicant. That argument was dramatic, the complainant saying that she was dragged by her mother to the bath and forced to bathe with the applicant. The evidence as to that incident, which had been fully summarised, did not lack particularity and there was no risk, in my opinion, that the jury might have confused that event with another.

129 This ground fails.

Conclusion

130 For the reasons earlier given, it is unnecessary for me to consider the other grounds of appeal concerning conviction, nor the question of sentence.

131 In my opinion, the conviction and sentence on Count 13 should be quashed The convictions on counts 1, 2, 3, 4, 5, 6, 9, 16, 17 and 18 should be quashed and the sentences imposed on those counts should be set aside and a new trial be ordered as to them.

17 R. v. Reid [1999] VSCA 98; [1999] 2 V.R. 605, at 621 [163].

18 Reid, at 621 [164]; R. v. Renzella, unreported, Court of Appeal, 7 August 1997, BC 9703681, per Winneke, P. at 10.

19 Section 372(3AC) relevantly defined "sexual offences" by reference to various Sub-divisions of Division 1 of Part 1 of the Crimes Act. The child pornography offences fell under Subdivision (13), which was not listed among the defined "sexual offences" Subdivisions.

22 R. v. Papamitrou [2004] VSCA 12; (2004) 7 V.R. 375, at 388 [27], per Winneke, P.

23 See R. v. PJO [2001] VSCA 213, at [14], per Buchanan, J.A, and as to a case involving a single complainant see D_e Jesus v. The Queen_ [1986] HCA 65; [1986] 61 ALJR 1, at 10, per Dawson, J.

28 [1998] 4 V.R. 603, at 606.

29 R. v. Vonarx [1999] 3 V.R. 618, at 622; S v R [1989] HCA 66; (1989) 168 C.L.R. 266, at 275, per Dawson,J.

30 R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412, at 417-8, per Winneke, P.

31 R. v. Papamitrou [2004] VSCA 35; (2004) 7 V.R. 366, at 390 [31], per Winneke, P.

33 As I later discuss, the conviction on count 13 was unsafe, in my opinion, but that does not mean that the evidence relating to counts 17 and 18 was not admissible in support of proof of count 13. When deciding whether the evidence was cross-admissible the judge was entitled to have regard to the probative force of the evidence on count 13 towards proof of counts 17 and 18. Although, in my opinion, the conviction on count 13 was unsafe, the quashing of that conviction would not alter my conclusion as to the appropriateness of the judge's ruling refusing severance of counts 17 and 18 from the remaining counts on the presentment.

37 R. v. Grech [1997] 2 V.R 609, at 614; R. v. Best, at 615.

40 [2001] VSCA 213, at [28].

41 R. v. T (1996) 86 A.Crim.R 293, at 299-300, per Southwell, A.J.A., Callaway, J.A. and Smith A.J.A. agreeing; see too R. v. TJB [1998] 4 V.R. 621, at 633 per Callaway, J.A.

42 R. v. J (No.2) [1998] 3 V.R. 602, at 642, per Callaway, J.A., Winneke, P. and Charles, J.A. agreeing; R. v. DCC [2004] VSCA 230, at [3], per Callaway, J.A.

44 [1998] 4 V.R. 603, at 606.

46 [2005] VSCA 262, at [12]; see, too, R. v. T, at 299, per Southwell, A.J.A.

47 At 299; see, too, Papamitrou, at [36]-[40].

48 [1999] VSCA 148, at [41], Phillips, C.J. agreeing.

53 See R. v. D [1999] VSCA 148, and see too my discussion in R. v. DCC [2004] VSCA 230, at [39]-[59].

54 R. v. DCC, at [15], per Callaway, J.A., and at [36]-[37] per Eames, J.A.

55 (1993) 30 NSWLR 510, at 516, as discussed in R. v. Grech [1997] 2 V.R. 609, at 612-3 and R. v. DCC, at [13]-[15], per Callaway, J.A.

56 See R. v. DCC, at [57], per Eames, J.A., and at [12]-15], per Callaway, J.A.

57 At [15], per Callaway, J.A.; at [38]-[40], per Eames, J.A.

58 [1999] VSCA 148, at [44].

59 Doggett v. The Queen (2001) 208 C.L.R. 343, at 346, per Gleeson, C.J.; BRS v. The Queen [1997] HCA 47; (1997) 191 C.L.R. 275, at 330, per Kirby, J.

61 R. v. Arundell [1998] VSCA 102; [1999] 2 V.R. 228, at 247-8, per Callaway, J.A.; Papamitrou, at [38], R. v. Defrutos [1998] 2 V.R. 589.

62 TKWJ v. The Queen [2002] HCA 46; (2002) 212 C.L.R. 124, at 128 ]8], per Gleeson, C.J.; at 133 [27]-[28], per Gaudron, J.; at 151 [81] per McHugh, J. See, too, Ali v. The Queen [2005] HCA 8; (2005) 214 A.L.R. 1, at 4 [7].

63 See Weiss v. The Queen [2005] HCA 81, at [41]-[47]

66 M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 493; Weiss v. The Queen [2005] HCA 81, at [41]-[43].

67 As to this use of the evidence, see DCC, at [8], where Callaway, J.A. relevantly discusses the difference between propensity reasoning and probability reasoning.

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Parties

Cases Cited (1)