R v D D [2007] VSCA 317

Court of Appeal (Vic)|2007-12-19|Before: MAXWELL P, CHERNOV and NEAVE JJA

CRIMINAL LAW - Appeal against conviction - Found guilty of incest and indecent assault (seven counts) of daughters/friend, all aged 11 to 13, over 30 years ago - Whether conviction for incest unsafe and unsatisfactory - Whether alternative verdict of attempted incest should have been left to the jury - Latent duplicity counts of indecent assault -Admissibility and cross-admissibility of evidence of uncharged acts - Jury directions on uncharged acts - Recent complaint - Crown concession on counts 6, 7 and 8 - Effect of concession on other counts - Directions on collusion/concoction - Failure to sever counts - Whether charge unbalanced - Direction on evidence of good character - Evidence of complaint and the 'bolster rule' - Failure to give a Burns direction -Adequacy of Kilby and Longman warnings - Directions on distress, delay and culture of complaint - References to 'victims' - Aggregate of errors - Appeal allowed, in part.

**2 I have had the considerable advantage of reading the draft reasons for judgment of Neave JA and, substantially for the reasons she gives, I would allow the application for leave to appeal against conviction on counts 6 to 8 and otherwise refuse leave to appeal against conviction.

3 In particular, I agree with her Honour that, as she explains, the remaining verdicts are not unsafe and unsatisfactory. And there was no failure to direct the jury on alternative verdicts as claimed by the applicant. In the context of this case, attempted carnal knowledge was never a true alternative to the counts in question. Whether the applicant attempted to penetrate the complainant's vagina with his penis was never a real issue before the jury. If it had been, the trial judge would have been under an obligation to identify it and give appropriate directions in that context.[1] It is true that it is for the trial judge to decide what are the real issues that are to be left with the jury, rather than that being determined by counsel. But the issue must be real and not merely remote or an artificial possibility.[2] And in determining what are the real issues that must be resolved regard must be had to the conduct of the trial by the parties. Thus, as Gleeson CJ said in Doggett v The Queen:[3]**

... The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any

directions from the trial judge, are said to be relevant to the determination of the ultimate issue.

The manner in which a trial is conducted, and in which the issues are shaped, especially where ... an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.

**4 As the Chief Justice went on to say: 'When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way'.[4] It seems to me that counsel's argument before us has the hallmarks of a new case. Be that as it may, the relevant issue before the jury was whether the applicant penetrated OA's vagina. The prosecution case was that this occurred, whereas the applicant contended, not that he tried to penetrate but failed, but rather that OA's evidence was a tissue of lies and there had not been any sexual contact between them at all. That this was the parameter of the dispute between the parties was made plain by the judge in his charge and no exception was taken to this by the applicant's experienced trial counsel. In those circumstances, it is fanciful to suggest, as Neave JA points out, that attempted penetration was an issue between the parties and should have been left to the jury as an alternative offence.

5 I also agree with Neave JA that the trial judge did not err in his direction on the elements of the offence of incest. His Honour's task was to charge the jury so that it could properly carry out its obligation; he was required to direct them, in terms that they were most likely to understand, on so much of the law as they needed to know on the matter in issue and relate that to the facts of the case.[5] And it is plain enough from the terms of his Honour's charge that he explained sufficiently to the jury the elements of the offence created by s 52(1) of the Crimes Act 1958 that was the subject of count 1 and what was in issue before the parties in that regard. Importantly, what his Honour relevantly said to the jury effectively explained to them what constituted 'carnal knowledge' and the mere fact that he did not, in terms, say that the sexual penetration alleged by the Crown amounted to 'carnal knowledge' did not detract from the efficacy of the explanation of the elements of the offence.[6]

6 I also think that, as explained by Neave JA, there is nothing in the claim that the verdicts are affected by duplicity. R v Trotter,[7] on which counsel relied, is a materially different case. There, the evidence disclosed two offences whereas the accused was only charged with one of them so that it could not be determined of which offence he was convicted. That is plainly not the situation here.

7 Similarly, like her Honour, I consider that there is no merit in the applicant's claim that his Honour's direction on uncharged acts was inadequate. The impugned evidence - particularly that of the 'kitchen incident' - was, as her Honour explains, relationship evidence going to establish the applicant's appetite for sexual conduct with the respective complainants and was plainly admissible in respect of each of them; it was also cross-admissible in this case as similar fact evidence that corroborated or confirmed the account of each complainant.[8] In those circumstances, it was for the trial judge to give the jury careful directions concerning the use that the jury can make of the similarities and to direct them that they could not use them for any other purpose.[9] In other words, the judge was obliged to give them a warning known as the 'propensity warning'. It seems to me that the warning in that regard that was given by his Honour, as it is reproduced by Neave JA in her reasons, was sufficient and, taken together with his Honour's separate consideration direction, would have made it plain to the jury that they must not engage in impermissible reasoning in respect of the evidence of uncharged acts, or in relation to any conclusion they may reach as to the applicant's guilt in respect of one or other complainant. This, I think, avoided a perceptible risk of a miscarriage of justice as contended for by the applicant.

8 As to the evidence of LE, it can be assumed that, given the Crown's concession, her evidence should not have been admitted and the direction on recent complaint (by HI) should not have been given by the trial judge, and that this error vitiates the jury's verdicts on counts 6 to 8. I think, however, that by itself the wrongful admission of that evidence did not affect the validity of the verdicts on the other counts. This is essentially because it was made plain enough to the jury that this evidence was led only in relation to the counts against HI and also because of the terms of his Honour's separate consideration direction and propensity warning, to which reference has been made. Moreover, as Neave JA points out, the charge sufficiently alerted the jury to the need to exclude the reasonable possibility of concoction and collusion between OA and HI.[10]

9 Similarly, I consider that, in the circumstances, contrary to the applicant's claim under grounds 5(c)(d)(e), there was no relevant risk of miscarriage of justice by reason of the evidence that OA told her husband about the applicant's offending conduct towards her and about the statement by the applicant's wife, in their presence and that of the applicant, that the applicant had told her that he had been falsely accused of sexually molesting a child. It was conceded by the applicant's counsel before us that this evidence would have been admissible given the cross-examination, and I note that no relevant objection to the evidence was taken below. Moreover, his Honour made it plain to the jury that the only relevance of that evidence was that it reminded OA of the offence and that they could not draw any adverse conclusion against the applicant from what was said by the applicant's wife. In the circumstances, the impugned evidence, even if inadmissible as evidence in chief, did not vitiate the verdicts.**

10 I also consider that, for the reasons given by her Honour, the other arguments pressed by the applicant under cover of ground 5 should fail.

11 On 17 March 2006, the appellant[11] was found guilty by a jury in the County Court of Victoria of one count of incest and seven counts of indecent assault. In an earlier trial for the same offences, the jury was unable to reach a verdict. The convictions relate to alleged sexual assaults on the appellant's two older daughters, OA and HI, and one of their girlfriends, SS, more than 30 years ago. The appellant was sentenced to a total effective sentence of seven years and 11 months' imprisonment with a non-parole period of five years. This is an application for leave to appeal against both the convictions and the sentence imposed on him.

**12 The appellant is 71 years old. He was between 36 and 39 years old when the alleged offences were committed, between 1 October 1972 and 22 September 1975, at the family home. The complainants were then aged between 11 and 13 years old.

13 At the time of the alleged assaults, each of the girls was said to have been unaware that the other girls had been assaulted. In 2002 each sister became aware that the other had been allegedly assaulted by their father. The sisters went to see a solicitor in 2003 and commenced civil proceedings which were later abandoned. They reported the alleged offences to police in 2004 and the appellant was charged.

14 The appellant gave evidence at his trial. The defence case was that the appellant had not sexually assaulted his daughters or SS and that the daughters had invented their allegations because of a property dispute between the appellant and his wife, and OA and her husband.**

**15 The grounds of appeal make it necessary to provide some details of the circumstances in which the alleged assaults occurred. Counts 1 and 2 relate to alleged acts of incest and indecent assault committed against the appellant's eldest daughter OA, when she was 11 or 12. These acts were said to have occurred after all four of the appellant's children took the day off school, without their parents' knowledge, on a day between 1 October 1972 and 17 May 1973. OA's evidence was that the appellant came home from work unexpectedly and caught them 'wagging school'. The appellant spoke to OA sharply and told her to come into his bedroom. He then unzipped his pants, put her hand on his penis and said he would not say anything about the children not going to school. He then made her masturbate him before pushing her onto the bed and attempting to touch her genital area. OA testified that the appellant then pushed her underpants to one side and inserted his penis into her vagina 'just a little bit'. This penetration was the foundation for the count of incest. OA said that when the appellant's penis would not go any further he stood up, started to masturbate and then forced her to masturbate him again. She could not say whether he ejaculated. He would not let her out of the room until she stopped crying. Count 2 related to the alleged acts of forced touching and masturbation which occurred (respectively) immediately before and after the act of penetration.

16 Count 3 related to an alleged indecent assault, also on OA, a few weeks later. On this occasion, she said the appellant came home early from work, locked her in the bathroom and forced her to masturbate him until he ejaculated. She gave evidence of a number of other incidents when she was forced to masturbate him. OA testified that the sexual assaults stopped when she was 11½ or 12, after the four children again 'wagged school', were caught shoplifting and taken to the police station.

17 Counts 4 and 5 related to alleged indecent assaults on one of OA's girlfriends, SS, who was a neighbour of the appellant's family. They occurred around the same time as the events which were the subject of counts 1 to 3, when SS was about 13. Count 4 occurred when SS came to visit OA. SS' evidence was that she was walking up the driveway of the house, when the appellant called her into a shed at the rear of the property and touched her vagina through her pants for about 30 seconds. She was shocked and walked away, but told no one about the incident.

18 Count 5 was alleged to have occurred a few months later at a party at the appellant's house. SS said that she went inside for a drink and the 'next thing she felt somebody touch [her] on the breast area and [she] turned around and [she] saw [the appellant]'. She said she told her mother who said she should go and tell the appellant to 'stop it', and 'how would he like it if someone was doing this to one of his daughters.' Her evidence was that she had repeated what her mother told her to say to the appellant, and that he turned around, said 'OK' and walked off. There were no further incidents.

19 Counts 6 to 8 related to alleged indecent assaults on the appellant's second daughter, HI, between 23 September 1973 and 22 September 1975. Count 6 occurred when the appellant told HI to take her dirty clothes into the laundry, followed her into the room, put her hand on his penis and moved it backwards and forwards until he ejaculated. Count 8 involved a similar act of forced masturbation in a bungalow at the back of the house. Count 7 occurred when the appellant grabbed HI and took her into his bedroom, where he touched her breasts and masturbated to ejaculation.**

**20 The appellant relied on five grounds of appeal, the last of which asserted that there were 15 separate errors which together had resulted in a miscarriage of justice.[12] In oral argument it was submitted that some of the separate errors alleged under ground 5 were sufficient, either individually or grouped with enumerated sub-grounds, to require the appeal to be allowed.

21 At the hearing of the application for leave to appeal, for reasons which I discuss below, counsel for the Crown conceded that the convictions on counts 6 - 8 were unsafe ('the Crown concession'). Counsel for the appellant submitted that this required the convictions on counts 1 - 3 (relating to incest and indecent assault of OA) and counts 4 and 5 (relating to indecent assaults of SS) to be set aside as well. Counsel for the Crown submitted that the concession did not affect the other verdicts. I discuss that issue below.**

22 This ground alleged that the conviction on count 1 (incest) relating to the complainant OA was unsafe and unsatisfactory because:

(a) no reasonable jury properly instructed could have been satisfied beyond reasonable doubt that the appellant was guilty of that offence given that it was not open to exclude the possibility that the alleged carnal knowledge (or "sexual penetration") did not actually occur;

(b) the learned trial judge erred in failing to leave, in respect of count 1, the alternative verdicts of attempted incest, assault with intent or indecent assault;

(c) the learned trial judge erred in failing to direct the jury sufficiently or at all on the elements of incest and, in particular, the element of carnal knowledge.

(a) Jury could not have been satisfied of sexual penetration beyond reasonable doubt

23 The evidence-in-chief of the complainant OA in support of Count 1 (incest) was as follows:

OA: He was lying on top and he tried to put it inside me which he did a little bit and I tried to push him away and he put his hand on my mouth because I was going to scream. That's what I remember.

Counsel: Did you still have your underpants on when he - ?

Counsel: So just explain to us what happened when he tried to put his penis into your vagina?

OA: It was just pushed on one side. Was still on. He didn't take my underpants off.

Counsel: Did he succeed in putting his penis into your vagina?

OA: Just a little bit, just a little bit, that's all.

Counsel: You understand about the outer and inner lips of the vagina?

Counsel: Can you tell us - how far - what he did with respect to the inner and outer lips of your vagina?

OA: He pushed one of the inner lips of the vagina just a little bit.

OA: He - he stopped and then - he stopped after that.

Counsel: Did you do anything that led to him stopping?

Counsel: Did he do anything after you cried and tried to scream?

OA: And then he just stood up and started to masturbate and made me masturbate him again.

Counsel: He had started to put his penis into your vagina?

**24 Counsel for the appellant submitted that, on the complainant's evidence, it was not reasonably open to the jury to conclude that penetration had occurred. The complainant's answer 'just a little bit' indicated uncertainty about whether this was the case, which was not removed by her other evidence that 'it was painful'.

25 The offence in count 1 is 'unlawfully and carnally knowing' a girl above the age of 10 whom the accused knew to be his daughter.[13] In R v Joseph Lines it was held that: [14]**

If on the trial of an indictment for carnally knowing and abusing a female child under ten years old, the jury are satisfied, that at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the child, no matter how little, this is sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offence.

26 The same principle necessarily applies to this offence.[15] His Honour clearly instructed the jury that they must be satisfied beyond reasonable doubt that:

there was an act of sexual penetration, in this case by the defendant's penis into [OA's] vagina, and that penetration can be ever so slight, but there must be penetration.

**27 Whether or not penetration could be established beyond reasonable doubt was a matter for resolution by the jury. The jury heard OA's evidence, including her evidence that she thought that the appellant had penetrated her, that what he did was painful and that he pushed at one of the inner lips of the vagina. The appellant simply denied that he had any sexual contact with OA. She was not cross-examined at all on the extent of penetration.

28 The facts of this case are quite different from those in R v AJS[16] where this Court held that the appellant's conviction of incest by digital penetration was unsafe. In AJS the accused did not dispute that he had touched the complainant in her vaginal area but said that this had occurred accidentally while he was rubbing her stomach to relieve her stomach pain. Further, in cross-examination the complainant contradicted her evidence-in-chief that the accused had put his fingers inside her vagina and her evidence in re-examination was equivocal.

29 In my view it was plainly open to the jury to be satisfied beyond reasonable doubt that penetration had occurred, in light of OA's evidence.**

(b) Failure to direct jury on alternative verdicts

**30 Counsel for the appellant submitted that the evidence raised a doubt as to whether penetration had occurred. In these circumstances, his Honour should have directed the jury that if they were not satisfied beyond reasonable doubt that the accused had penetrated the complainant, but were satisfied beyond reasonable doubt that he had attempted to do so, they should convict the accused of the alternative offence of attempted incest.[17] It was contended that verdict of attempted incest was open on the facts, that the decision of the High Court in R v Gilbert[18] required the jury to be directed on this alternative, and that his Honour's failure to do so had deprived the appellant of the chance of a conviction of a lesser offence.

31 At the trial counsel for the accused did not ask his Honour to leave these alternative verdicts to the jury. Counsel for the appellant on appeal contended that this could not have been a deliberate forensic decision. He contrasted the approach taken by defence counsel at trial to count 1 (incest) and counts 4 and 5 (indecent assaults of SS). Although the appellant denied the indecent assaults on SS, counsel for the accused in his closing address had said that even if the evidence of SS were accepted, the jury should not accept that the acts done by the accused amounted to indecent assaults. His Honour directed the jury on that issue. It was said that this showed that trial counsel's failure to request a jury direction on an alternative verdict of attempted incest must have been an oversight, rather than a tactical decision.

32 In response, counsel for the Crown said that the case on count 1 had been run on an all-or-nothing basis. The Crown case was that the appellant had sexually penetrated his daughter OA and the appellant had denied that he had had any sexual contact with her. Given the way in which the case was run, his Honour's failure to direct the jury on the possibility of delivering a verdict on an alternative count had not deprived the accused of a fair trial.

33 Counsel for the Crown further submitted that the principles established by the High Court in Gilbert v The Queen[19] and Gillard v The Queen[20] do not require a trial judge to routinely direct the jury on alternative counts, in cases involving offences other than murder.

34 In Gilbert[21] a majority of the High Court[22] allowed Gilbert's appeal against his conviction for murder, in a case in which the trial judge had not left manslaughter to the jury as an alternative verdict.[23] The Queensland Court of Appeal had held that his Honour had erred in failing to leave manslaughter to the jury, but applied the Queensland provision equivalent to the proviso in s 668E(1A) of the Crimes Act 1958 and dismissed the appeal on the ground that no substantial injustice had occurred, by virtue of the failure to give the alternative direction. The High Court held that the court should not have applied the proviso,[24] because a jury which had been properly instructed might not have found the accused guilty of murder, if they had been aware that the verdict of manslaughter was open to them.

35 The question whether a judge who correctly directs the jury on the elements of an offence other than murder has erred by failing to direct the jury that they could convict the accused of a lesser offence, has been discussed in several Court of Appeal decisions. There is considerable support for the view that the Gilbert requirement applies only to murder, but that in a trial of an accused for an offence other than murder the particular circumstances may require a direction on alternative verdicts to be given. [25] I discuss the relevant case law supporting this view below.

36 In R v Mary Saad[26] it was contended that the judge had erred by failing to direct the jury that it was open to them to convict an appellant who had been charged with murder, of the lesser offence of assisting the principal offender.[27] The appellant was refused leave to amend her grounds of appeal to include this ground. Nettle JA (with whom Chernov JA and Harper AJA agreed) rejected counsel's submission that the view of the majority in Gleeson CJ and Gummow J in Gilbert applied to 'all cases in which a judge fails to leave a lesser available offence as a possible alternative verdict.'[28] Counsel had submitted that because Gleeson CJ and Gummow J had relied upon the Canadian Supreme Court decision in Re Jackson,[29] they had necessarily approved the Canadian view that 'no matter what is charged, the failure of the judge to leave to the jury a lesser alternative charge open on the evidence must result in a guilty verdict being set aside unless the proviso can be applied.'[30]

37 Nettle JA rejected this submission in the following terms:[31]**

As Ormiston, J.A. demonstrated in R v Kane,[32] the Canadian jurisprudence depends largely on a questionable interpretation of the Canadian Criminal Code and on a degree of dogmatic insistence that all "included offences" should be resolved by verdict. With respect, it is unlikely that Gleeson, CJ. and Gummow, J. intended that legal reasoning of that kind is to be adopted in this country. Significantly, too, Callinan, J., who was the other majority judge in Gilbert, reached the same conclusion as Gleeson, C.J. and Gummow, J., without any reference to Canadian authority, and Gleeson, C.J. and Gummow, J. referred to Callinan, J's judgment with approval. Callinan, J.'s conclusion was in terms confined to the proposition that where the charge is murder and the judge fails to leave an available alternative verdict of manslaughter for the jury's consideration, a verdict of guilty of murder must be set aside unless the proviso can be applied. Admittedly, Callinan, J. referred with approval to observations of Pincus, J.A. in R v Donald,[33] and on one view of the matter Pincus, J.A. was directing his observations to cases apart from murder. But R v Donald, like R v Jackson, was a case of murder in which the trial judge erred by failing to direct the jury that a verdict of manslaughter was available for consideration. Accordingly, with respect, I read Callinan, J.'s reference to the case as confined to that context. Further, in Gillard v The Queen,[34] a High Court of five members took the law as stated in Gilbert to be that where the offence which is charged is murder and the judge fails to leave to the jury a viable case of manslaughter, the accused is wrongly deprived of an opportunity to have the jury consider 'an intermediate position', and a verdict of guilty of murder will therefore be set aside. There is no suggestion in Gillard that the principle in Gilbert is to be understood as applying to a case other than one of murder in which the judge fails to leave an available case of manslaughter. This court has also twice before considered the question of whether the principle in Gilbert and Gillard has application beyond a case in which the offence which is charged is murder and the error of the trial judge is to fail to leave to the jury an available alternative case of manslaughter. In the first case it was doubted that the principle went any wider that the murder/manslaughter dichotomy and in the second it was held it does not. In R v Doan,[35] Charles, J.A. undertook a review of some of the authorities in other states and concluded that it was doubtful that the principle extends beyond the murder/manslaughter dichotomy.[36] Vincent, J.A. agreed.[37] In R v Kane,[38] Ormiston, J.A.[39] reviewed a large number of authorities and concluded that, except in cases where murder has been charged and manslaughter should be left to the jury, there is no basis in principle for insisting on alternative charges being left to the jury in every case. It depends, his Honour stated, on all the circumstances and in particular on whether the accused's counsel asks that the alternative charge be left to the jury or otherwise raises the issue.[40] Callaway, J.A., also considered a number of the authorities and concluded that it is not every alternative verdict that must be left to the jury and that the answer to whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel.[41]

**38 For the reasons given by Nettle JA, I agree that the principle in Gilbert does not require a trial judge to direct the jury on alternative charges to offences other than murder. However, as Nettle JA recognised,[42] there will be cases where the circumstances of the case require a direction on alternative charges. [43]

39 As Nettle JA said in R v Van Xuan Bui:[44]**

Murder and manslaughter apart, the test of whether a lesser included offence should be left to the jury as an available alternative depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel.[45] As the English Court of Appeal put it in R v Fairbanks:[46]

[The] cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.[47]

**40 The question therefore is whether, in the context of this particular trial, the failure of the judge below to direct the jury that it was open to them to convict the appellant of an attempt to commit incest or of indecent assault, resulted in a miscarriage of justice.

41 The case put on behalf of the appellant was that he had not committed any of the alleged sexual assaults alleged by OA. In that respect it has some similarities to the example given by Nettle JA in Van Xuan Bui, of the situation where the defendant simply denies committing an offence. The appellant's counsel did not contend that even if the appellant had attempted to penetrate OA, he had not succeeded. The case put by the defence was that the alleged assaults were fabricated by OA in order to revenge herself against her father because she had a property dispute with him.

42 It would have undermined the appellant's credibility to contend that an indecent assault or act of attempted penetration might have occurred, rather than an act of penetration amounting to incest. In these circumstances, the failure of defence counsel to request a direction on alternative verdicts is explicable on forensic grounds. The fact that counsel contended that the acts relating to SS did not amount to indecent assaults provides no assistance on any forensic decision he may have made relevant to the incest count.

43 The principle in Gilbert is intended to guard against the possibility that a jury which is faced with the choice of convicting the accused of a more serious offence and acquitting him or her of that offence, will convict the accused, rather than allowing him or her to completely escape punishment for the consequences of his or her conduct.

44 I do not think that the danger which the High Court were concerned about in Gilbert existed in the circumstances of this case. His Honour directed the jury on the elements of incest and the need to be satisfied beyond a reasonable doubt that the accused had penetrated his daughter OA, in the terms that are set out in para 45 below. The accused denied any sexual misconduct with his daughter. In these circumstances, I do not consider that the appellant was deprived of the chance of being acquitted of incest because his Honour failed to direct the jury on the possibility of convicting the accused of the alternative offence of attempted incest. My view on this issue is fortified by the fact that counsel at the trial did not seek a direction to this effect.**

(c) Failure to direct the jury sufficiently or at all on the act of incest

45 At the time when the alleged act of incest occurred, incest was punishable under s 52(1) of the Crimes Act 1958, which made it an offence for a person to have 'unlawful carnal knowledge' of his daughter. Counsel for the appellant contended that his Honour should have directed the jury on the meaning of 'carnal knowledge.' The jury direction on count 1 was as follows:

To turn to the first count of incest, the essential elements that the Crown have to prove beyond a reasonable doubt to your satisfaction are as follows. The first essential element is, of course, that it was the defendant that committed the act, number one. Two, that there was an act of sexual penetration, in this case by the defendant's penis into [OA]'s vagina, and that penetration can be ever so slight, but there must be penetration. Thirdly, that the act was with a person who the accused knew to be his child, and at the time [OA] was over the age of ten.

There's no dispute in this case about any of those elements other than the first one. The defence case is that this simply did not happen. It is not suggested that there is any fallback position, that for some reason the Crown have not proved penetration, or for some reason the Crown have not proved that she was over ten at the time, or anything like that. There is no dispute about any of the elements except the first one, of course, the most important one, did the accused man commit the act?

**46 It was not necessary for his Honour to use the word 'carnal knowledge' in his jury direction. The Crown alleged that he had penetrated the complainant's vagina with his penis[48] and his Honour correctly directed the jury that penetration could be 'ever so slight'. His Honour also referred in some detail to OA's evidence-in-chief, which I have set out in para 23 above.

47 The facts of this case are readily distinguishable from AJS,[49] to which I have already referred. In that case the central issue was whether the appellant had touched the complainant's vaginal area accidentally in the course of rubbing her stomach or had intentionally inserted his finger between her labia majora. The complainant herself had given conflicting evidence on this issue. In those circumstances it is not surprising that this Court found that it 'was critically important that [the jury] have the legal meaning of "vagina" explained to them.'[50]

48 The circumstances of this case are quite different. In my opinion his Honour's direction in relation to penetration was sufficient and his failure to say explicitly that penetration of the labia was sufficient, or to define 'external genitalia', was more likely to benefit the appellant than to disadvantage him. Counsel for the appellant did not object to the jury charge.**

49 Ground 2 alleges that 'the verdict on count 2 is afflicted with duplicity, latent duplicity or uncertainty given that:

(a) two separate acts of indecent assault separated by the allegation of incest in count 1 were left in support of count 2; and

(b) there was no election by the prosecution as to which of those acts was relied on.'

**50 In her evidence-in-chief relating to count 1, which is set out in para 23 above, OA testified that her father asked her to go to the bedroom, pushed her on the bed, took his pants off and put her hand on top of his penis. He then pushed her onto the bed and tried to put his penis inside her 'which he did a little bit'. Then she said he stopped, stood up and made her masturbate him again until he ejaculated. Counsel for the appellant contended that the events described by OA involved allegations of two separate acts of indecent assault, which were separated by an alleged act of incest. It was said that the jury would have been in doubt as to which of these acts was relied upon, because the prosecution did not elect one of them. Nor did the judge separate the evidence of the two acts and identify one as supporting count 2.

51 Counsel for the appellant submitted that the situation was analogous to that in R v Trotter[51] where the verdict was set aside because it was affected by duplicity. It was, however, conceded by counsel for the appellant that it was unlikely that the jury would have been confused in this case as to the acts which provided the basis for the charge of indecent assault.

52 In my opinion, the circumstances of the case are clearly distinguishable from those occurring in R v Trotter. In that case the appellant was canvassing for business in Braybrook and told the complainant, a 12 year old boy, and his parents that he was looking for young boys to help him repair sewing machines. The parents had recently migrated to Australia and had very limited English. The appellant's case was that the parents had agreed to let the boy stay with him. It was common ground that the boy was taken to the appellant's flat where he had a meal and a bath and put on pyjamas.

53 The appellant was charged with taking the boy away and indecently assaulting him. The boy made two statements to the police, in the first of which he made no reference to indecent assault and in the second of which he said that he was assaulted while he was lying on a bed watching television. His evidence-in-chief also referred to this indecent assault. The appellant cross-examined the boy and demonstrated the alleged touching and the boy agreed with the appellant's assertion that he had not been touched. However in re-examination he gave evidence of a separate incident of assault occurring earlier in the evening, which was said to have occurred while the appellant was helping him to dry himself after a bath.

54 The Victorian Court of Criminal Appeal held that his Honour had erred in admitting the evidence of the second assault, because the prosecution had not been required to specify which of the two alleged indecent assaults was the subject of the count. While the jury must have agreed unanimously that the appellant had committed an indecent assault on the child, it was possible that some of them had taken the view that one assault had occurred and others had taken a view that the other assault had occurred.

55 In this case, there was no evidence which would have caused jury members to disagree as to which of the alleged acts of masturbation had occurred. Rather, the question was whether the jury was convinced beyond reasonable doubt that a sexual assault involving acts of incest and indecent assaults had occurred on the particular occasion. The indecent assault was treated by the Crown, without objection from the counsel for the appellant, as a continuing transaction, albeit one which was interrupted by the act of incest. The accused's case was that the actions did not occur at all. In these circumstances there was no possibility that some members of the jury might have relied on the commencement of masturbation, prior to the act of incest and some on the completion of masturbation until ejaculation after the act of incest. This ground is not made out.**

Ground 3 - Adequacy of jury directions relating to charged and uncharged acts

56 Ground 3 complains of the inadequacy of the jury directions relating to the evidence of uncharged acts of sexual assault of OA and HI and to the counts on the presentment relating to the different complainants. It is said that '[t]he learned trial judge erred in his directions on uncharged acts and, in particular, he erred:

(a) in leaving the single uncharged allegation of [the appellant's] daughter [HI] as going to proof of a sexual relationship; and

(b) in limiting the propensity warning in its application to evidence of uncharged acts as opposed to charged acts.'

**57 Before examining the adequacy of the jury directions relating to the evidence of charged and uncharged acts, it is necessary to determine whether this evidence was admissible, and if so, for what purpose.

The admissibility of the evidence of the uncharged acts

58 Both daughters made allegations of discreditable sexual conduct by the appellant on occasions other than those the subject of charges in the presentment. OA gave evidence that the appellant made her masturbate him on a number of occasions other than those referred to in counts 2 and 3. HI testified that in addition to the alleged acts of forced masturbation covered by counts 6, 7 and 8, there was an occasion when she was in the kitchen and sitting on her father's lap when she felt him getting an erection and she got up and walked away. (I describe this as the 'kitchen incident'.)

59 Defence counsel at the trial did not object to the admission of any of this evidence and there was no discussion between trial counsel and the judge as to the purpose for which it could be used by the jury.[52] Nor do the grounds of appeal allege that the judge erred by admitting the evidence of the uncharged acts of forced masturbation by OA. Ground 3(a) objects to the admission of and directions with respect to the evidence of the 'kitchen incident'. However, in order to consider whether ground 3 is made out it is first necessary to analyse the basis for the admission of the evidence of uncharged acts and other disreputable conduct.

60 There is ample authority that evidence of uncharged acts showing that an accused is sexually attracted to a particular complainant is admissible, despite its propensity character. The evidence that the appellant forced his daughter, OA, to masturbate him on occasions other than those charged satisfied the requirements of s 398A of the Crimes Act 1958 because its probative value outweighed its prejudicial character.[53] It was, however, necessary for his Honour to warn the jury of the use which could be made of such evidence and, in particular, to warn the jury against reasoning that the accused was guilty of counts 1-3 because he was 'the kind of person' likely to have committed the offences charged.[54] I consider the adequacy of the warning given by his Honour below.

61 The evidence of the 'kitchen incident' was also relied upon by the Crown as demonstrating 'an attraction by the father towards [HI] beyond the normal father/daughter affection that you might expect'. Counsel for the appellant submitted that the evidence of the kitchen incident involving HI should not have been admitted, because it was evidence of a single incident which might have been innocent. The submission made two distinct points. First, a single incident could not constitute a 'relationship'. Secondly, the incident itself was not necessarily sexual at all.

62 Neither limb of the submission is persuasive. Taking the second point first, the incident was self-evidently sexual in nature, given that (on HI's version) the appellant 'sat me on his lap', then became sexually aroused and then was 'hanging on to' her before letting her go. As to the first, it is not necessary that the uncharged act or acts be sufficient, without more, to constitute a sexual relationship. As in R v VN,[55] the evidence was properly admitted**

[a]s it was evidence tending to establish matters relevant to the relationship between the applicant and the complainant. The evidence had probative force as tending to make it more likely that the subject offences had been committed, placing the evidence in a more realistic and complete context.

**The cross-admissibility of the evidence of uncharged acts

63 As I have said, the evidence of uncharged acts affecting OA was admissible in relation to counts 1-3 and the evidence of the 'kitchen incident' affecting HI was admissible in relation to counts 6-8, in each case to show that the appellant was improperly sexually attracted to the relevant daughter. But was the evidence relating to uncharged acts affecting OA or the kitchen incident affecting HI cross-admissible in relation to the alleged sexual assaults of the other daughter?

64 Evidence of this kind is often described as 'relationship evidence'. In R v Nieterink,[56] Doyle CJ cautioned against the general use of the term 'relationship evidence' and said that it was preferable for the basis on which such evidence is admitted to be more specifically described.[57]

65 Similarly, in R v BJC Osborne AJA said that:[58]**

It will generally be appropriate for the trial judge to identify the purpose for which evidence of sexual relationship is admitted with the same precision as is necessary to determine its admissibility. Before evidence of the kind in issue is admitted the onus is on the prosecution to establish that it goes beyond mere propensity and "has additional probative value which justifies its prejudicial effect."[59] Accordingly the purpose identified will respond to the particular issues in the case.[60] Characterising evidence simply as demonstrating a relationship may be unhelpful and will increase the risk that it will be treated as evidence of mere general propensity by the jury.

**66 In cases involving a single complainant, admission of 'relationship evidence' may enable the jury to understand the circumstances and context in which an alleged offence is committed, or it may show that the accused had an unlawful attraction for the complainant, which increases the likelihood that he has committed the offences with which he was charged.[61] As I have said, the evidence will be admissible, despite its propensity character, because its 'additional probative value' justifies its prejudicial effect.[62]

67 Was the evidence of uncharged sexual acts against OA admissible as relationship evidence in support of the counts affecting HI, and vice versa? As the law currently stands, evidence of uncharged acts showing an unlawful sexual attraction to one complainant may not be admissible to show the existence of an unlawful sexual attraction to another complainant.[63]

68 Generally no distinction has been drawn between cases where the complainants are members of the same family (for example, the children or step-children of the accused) and where the complainants are unrelated children. It appears that evidence of charged or uncharged sexual acts by a parent against one child is only admissible in support of counts involving alleged abuse of a different child in the family if there is such similarity between the acts as to make it improbable that each of the complainants would have made the same allegations.[64] In these circumstances the jury must be told that they can only rely on the similar fact evidence if they are satisfied that one complainant has not been innocently influenced by the allegations made by another complainant and that the complainants have not fabricated the allegations.[65]

69 To my mind there is a difference between reasoning that because a person may have committed offences against one child, he is a paedophile who is likely to have committed offences against other children (which the law regards as impermissible propensity reasoning) and reasoning that a person who regards one of his children as an appropriate object for his sexual attention is likely to be improperly sexually attracted to his other children. Arguably evidence that the accused is attracted to one of his children goes beyond evidence of general propensity and should be regarded as directly probative of the existence of an improper sexual attraction to children with whom he has a parental relationship. However present authority does not appear to support the cross-admissibility of relationship evidence on this basis.

70 As I have said, evidence of uncharged acts may be cross-admissible if it shows a similarity between the uncharged acts, which supports an inference that the appellant committed the offences with which he was charged. In R v DCC[66] for example, it was held that the Crown could rely on the evidence of the appellant's three step-children that he had sexually abused them, as similar fact evidence. In these circumstances the probative value of the evidence was based on the improbability that the three children were likely to have given similar accounts of abuse by their step-father.

71 In this case the Crown did not contend that the evidence was cross-admissible as similar fact evidence, but treated it as evidence which went to the nature of the relationship between the accused and his two daughters. His Honour directed the jury that the evidence was admitted: [67]**

...only for the limited purpose of determining whether a sexual relationship existed between the complainants, [OA] and [HI] and their father, thereby enabling the evidence relied upon by the Crown, in proof of the offences with which he has been charged, to be assessed and evaluated within a realistic contextual setting.

72 In my opinion it is doubtful whether the evidence of uncharged acts was cross-admissible to show the context in which the alleged assaults of both daughters occurred. However, the evidence of uncharged acts, including the kitchen incident,[68] may well have been admissible as similar fact evidence in support of the Crown case on counts 1-3 and 6-8, though not in support of counts 4 and 5 (the alleged indecent assaults of SS).[69] The evidence of both daughters as to the charged and uncharged acts revealed a pattern of similar behaviour. Both daughters alleged they were sexually abused, by being forced to masturbate the appellant, though OA also alleged an act of sexual penetration. These acts allegedly occurred in the family home when the other children were also there.[70] This is a case in which: [71]

...the evidence of one [daughter] about what happened to her was so related to the evidence of [other daughter] about what had happened to them that the evidence of the [other daughter] provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect.

**73 In the event, however, it is unnecessary to resolve this question. Counsel for the appellant did not contend that his Honour erred in treating the evidence of uncharged acts (other than the kitchen incident) as cross-admissible.

Was the jury direction sufficient in the circumstances?

74 The learned trial judge directed the jury that they could only use the evidence of uncharged acts for the purposes of evaluating the charges in a realistic context, rather than directing them that they could use it as similar fact evidence. As I discuss below, the jury was adequately warned against reasoning from propensity. In my opinion the appellant was not disadvantaged because the jury was told the evidence could be used to assess the nature of the relationship, rather than for a more directly probative purpose as similar fact evidence.[72] Directing the jury to the common features of the alleged acts may well have been more prejudicial to the accused than simply telling them that the evidence could be used as evidence of the context in which the charged acts occurred.

75 However, regardless of the basis on which the evidence of uncharged acts was treated as cross-admissible, there was a danger that the jury would reason that the accused had committed the offences with which he was charged, simply because he was seen as having a general propensity to do so. It was therefore essential for the jury to be warned that if they found that the appellant engaged in particular uncharged or charged acts involving sexual abuse of one or more complainants they could not reason that he was therefore likely to have committed the acts with which he was charged.

76 Although this was not directly addressed in the grounds of appeal, the importance of giving a warning against propensity reasoning was heightened because of the evidence given by OA as to how she first recalled the alleged abuse. She said, in examination-in-chief, that her memory of the sexual assaults by her father had been triggered in 2002 by a conversation with her mother, who had said that her father had had to get rid of a woman with two little girls who had lived at his place because one of the girls had accused the appellant of sexual assault. No objection was made to the admission of this evidence by defence counsel. In addition, in cross-examining the appellant counsel for the Crown put it to the appellant that he 'had a go' at SS as well.

77 The nature of the warning which must be given about the dangers of propensity reasoning has been set out in a number of decisions.[73] In R v Best[74] Callaway JA set out the elements of the warning which must be given to the jury, about the dangers of propensity reasoning in the context of relationship evidence. He said: [75]**

Three things have to be done. The first is to explain to the jury the limited purpose for which the relationship evidence is admitted. The second is to direct them not to substitute that evidence for evidence of the offences charged. The third is to warn them against reasoning that, because the accused engaged in other misconduct, he is the kind of person who is likely to have committed those offences.

78 In this matter, the learned trial judge gave the following direction in relation to the allegations of uncharged sexual acts: [76]

Now you will appreciate that none of these matters are on the presentment, so why has the evidence been given about this and what use can you make of it.

The direction I give you is that you should understand that the evidence of this conduct which the accused man has not been charged with, can only be used by you if you are satisfied that in fact it occurred, and only for the limited purpose of determining whether a sexual relationship existed between the complainants, [OA] and [HI] and their father, thereby enabling the evidence relied upon by the Crown, in proof of the offences with which he has been charged, to be assessed and evaluated within a realistic contextual setting.

You should not reason, however, that the accused is the kind of person likely to commit the offences with which he has been charged, simply because this evidence of uncharged acts has been admitted into evidence.

You should also clearly understand that this evidence of other sexual activity does not, of itself, prove that the offences with which he has been charged, have been proved. You can only convict him of any of the counts alleged against him in the presentment if you are satisfied beyond a reasonable doubt that the facts alleged in a particular count, in fact, occurred.

79 His direction as to uncharged acts was immediately followed by a direction in the following terms:

The next direction I want to give you, concerns the fact that the presentment, as you know, contains eight different charges or counts. Now all of these charges are on the one document, called the presentment and that is done for convenience. It would obviously, in this case, be highly inconvenient and expensive to hold a separate trial before a separate judge and jury on each count. However, you must not allow the convenience of this procedure to usurp justice. The accused is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. It may be that the same logic applies to two or more of them and as a matter of reason, that logic will dictate the verdict in each count. But it would be quite wrong for you to say that simply because you find the accused guilty or not guilty of one count, that he must therefore be guilty or not guilty of another count or counts.

So what you have got to do is consider each count separately in the light of the evidence which applies to that particular count and ask yourselves as to each count separately, am I satisfied beyond a reasonable doubt by the evidence that he is guilty of this crime, that is the one that you are then considering. If that answer in your judgment, yes, then of course you will find him guilty on that particular count and if it is answered no, then of course you will find him not guilty on that particular count.

**80 The warning given by his Honour in relation to the use of evidence of uncharged acts contained all the necessary elements of the warning required by R v Best and R v Grech.

81 Counsel submitted that the jury should also have been warned that if they found the appellant to have committed offences against one complainant, they should not reason that he was the kind of person who was likely to have sexually assaulted the others. It was said that the direction given by his Honour related only to the need to give separate consideration to the different counts and did not address the danger of improper propensity reasoning, in relation to the other counts which were charged. The jury had been given such a warning in relation to the uncharged acts, but not in relation to the charged counts. It was said there was therefore a danger that because the trial judge limited his propensity warning to uncharged acts, the jury might have thought that it was permissible for them to reason that because if they found the appellant had committed an offence covered by one count he was therefore likely to have committed the offences covered by other counts.

82 In R v TJB[77] Callaway JA said that, where evidence was given of charged and uncharged acts against the same complainant and a Grech direction was given in relation to the uncharged acts, it was ordinarily unnecessary to give an additional warning against propensity reasoning in relation to the charged acts, as long as a separate consideration warning was given.[78] However his Honour said that in cases where charges of sexual offences against several children were tried at the same time, and the evidence in relation to one child was not admissible in relation to the others, it was necessary for the jury to be given both a separate consideration warning and a warning 'not to reason that, if the accused molested one child, he was the kind of person who was likely to have molested the other.'[79]

83 In R v CHS it was accepted by Eames JA that: [80]**

[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),[81] 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.

[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. Beserick[82] 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 charge. [83]

[111] That was the conclusion reached by the Court in DCC,[84] 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 D[85] 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.

**84 In my opinion the warning given by his Honour was adequate for this purpose. His Honour warned the jury against reasoning that the accused was 'the kind of person likely to commit the offences with which he has been charged, simply because evidence of uncharged acts has been admitted into evidence.' Almost immediately thereafter he told the jury that 'simply because you find the accused guilty or not guilty of one count [they] must not reason that he must therefore be guilty or not guilty of another count or counts.'

85 In this case it was necessary for his Honour to warn the jury that they could not use the evidence of uncharged or charged acts against one daughter as evidence supporting the counts relating to the other daughter or as evidence supporting the counts relating to SS. His Honour warned the jury against reasoning that the appellant was 'the kind of person' who would have committed the offences with which he was charged, because he had committed the uncharged acts. Although his Honour did not repeat the third element of the Grech direction when he warned the jury against reasoning that if they found the appellant guilty on some of the counts, he must also be guilty on the other counts, I do not think there was a danger that the jury would have regarded the propensity warning as limited to the uncharged acts and as inapplicable to the charged acts. In my view the directions were, as a whole, sufficient to warn the jury of the danger of propensity reasoning, both in relation to uncharged and charged acts.

86 It has been said that jury charges should not be construed as if they are legal documents and that the test of the sufficiency of a warning must always be 'the final impression left with the jury'.[86] As Callaway JA said in R v DCC: [87]**

In every case the sufficiency of the warning depends on the facts of the case, the precise language and importantly the context. The charge should be read as a whole.

**87 It is fanciful to suppose that a jury would confine his Honour's warning against propensity reasoning to the evidence of uncharged acts and not regard the warning as applicable to the acts which were the subject of the counts with which he was charged. His Honour's jury directions clearly indicated the necessity to determine whether the elements of each count were established beyond reasonable doubt and the need to avoid reasoning that because the accused was the kind of person who may have committed some of the offences he was likely to have committed the others.[88] For these reasons I consider that ground 3 is not made out.

88 Ground 5(f) complained that the evidence of LE, which supported the allegations of abuse against HI, should not have been admitted or been treated as a recent complaint in the learned trial judge's jury directions.

89 At the trial LE, who had lived nearby and had been friendly with HI when she was a young girl, testified that HI had said to her that the appellant had touched her. She said that 'she thought' she was between 8 and 9 years old at the time and that this conversation occurred 'just before [the appellant's family] left' the suburb or 'round about that.' LE said that she could not remember anything else about the incident, but that she had told her father about it and he had said that it was not their business.

90 LE's evidence was treated as evidence of 'recent complaint' relating to the indecent assaults of HI. His Honour directed the jury in the following terms on the use they could make of this evidence:**

The purpose that you, the jury, can put to such evidence is to use it as a possible test of the consistency of the victim's conduct.

Whether the victim complained or did not complain of a sexual assault at or near the time of its alleged occurrence can be regarded by you, the jury, as evidence bearing upon the credibility of the victim in complaining of it. The making of a timely complaint is a matter which the jury may regard as behaviour consistent with the truth of the victim's evidence.

In considering evidence of complaint you should bear in mind of course that it springs from the same source as the evidence of the crime. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of the complainant giving additional support to the probability that the crime happened. Its only effect is upon the credibility of the victim's story.

**Neither counsel took exception to this direction.

91 LE was born in May 1962. If LE was aged eight or nine at the time of the conversation, it must have taken place between 1970 and 1971, that is before the alleged assaults on HI between September 1973 and September 1975 (the dates alleged in counts 6, 7 and 8 of the presentment). If, on the other hand, the conversation occurred just before the appellant's family left Broadmeadows, the appellant's evidence was that the family did not leave Broadmeadows until October 1981 when he, his wife and two younger daughters, moved to Lake Boga. If the complaint of touching was made shortly before October 1981, LE was then aged 19, not eight or nine as she said in her evidence.

92 On any view LE's evidence that HI had told her that DD had touched her was not admissible as a recent complaint of the assaults covered by the presentment. If the conversation occurred before the alleged assaults, when LE was aged 8 or 9, it was not a complaint at all. (I note that this would also have been before the DD family moved to Broadmeadows, which according to the appellant's evidence was in October 1972.) For that reason counsel for the Crown conceded during the hearing of the appeal that the convictions on counts 6, 7 and 8 must be set aside.

93 The alternative interpretation of LE's evidence is that the conversation occurred shortly before October 1981, when it was clearly inadmissible as a recent complaint about offences alleged to have occurred some six to eight years previously. [89] It is most unfortunate that neither counsel recognised this anomaly in LE's evidence or drew it to the attention of the trial judge.

94 Because the Crown concession was only made during the hearing of the appeal, the Court did not have the opportunity to consider whether the evidence of LE might have been admissible on a different basis. Nor did counsel have the opportunity to make submissions on that issue.

95 As I explain in more detail below, the defence case was that OA had invented the story that her father had sexually assaulted her in 2003, because of a property dispute and her sister HI had made similar false allegations in order to support OA. Where it is said that a witness has constructed a story after the events in question, a previous consistent statement by that witness may be admissible, not as evidence of the truth of the contested facts, but to rebut the suggestion of 'recent invention.' In Nominal Defendant v Clements Dixon CJ explained the principle as follows: [90]**

If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.

In the same case Windeyer J explained that:[91]

It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken... There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify.

**96 As the above statements indicate, evidence can be admitted to rebut a case of recent invention even if the complaint is made some time after the alleged offences occurred. If LE's evidence was admissible to rebut an allegation that HI invented the allegations of sexual assault, it could be argued that no miscarriage of justice occurred because his Honour mischaracterised the evidence as evidence of a recent complaint.

97 Prior to publication of these reasons counsel were given the opportunity to make written submissions as to whether any miscarriage of justice occurred as the result of the admission of LE's evidence. The court also heard counsel on that issue.

98 Counsel for the appellant conceded that, in different circumstances, LE's evidence might have been admissible as a prior consistent statement in order to rebut the defence case that HI had invented the allegations of sexual abuse. However he submitted that LE's evidence was not admissible in the circumstances of this case because the evidence was ambiguous as to when the statement was made. It would not have been appropriate for the trial judge to leave it to the jury to decide whether the complaint was made at all and if so whether LE was 9 or 19 at the time of her conversation with HI.

99 Further, counsel for the appellant said that, in treating HI's evidence as a recent complaint, his Honour's jury direction contrasted the prosecution case relating to counts 6-8 with its case on the counts alleging assaults against OA and the first alleged assault against SS, neither of whom had complained about the relevant assaults until shortly before the appellant was charged. He also submitted that, if LE's evidence had been admissible as a prior consistent statement to support HI's credibility, his Honour would have had to direct the jury on the possibility that OA and HI had colluded in making false allegations against their father.[92]

100 At the hearing on this issue, counsel for the Crown again conceded that the effect of the admission of LE's evidence as a recent complaint by HI was that the convictions on 6, 7 and 8 must be set aside. Counsel said that in principle, a complaint of sexual assault by HI to LE would have been admissible to rebut the suggestion made by counsel for the appellant at trial that 'the complaints that are before this court so far as you [HI] are concerned are a part of your getting together with OA to assist her to obtain some property from your parents.' However in this case the prosecution case was not that LE's evidence was a prior consistent statement admitted to rebut an allegation of recent invention but that it was a 'recent complaint', and the jury directions reflected the way in which the case had been argued. It was conceded that the judge had not correctly directed the jury on the limited use they could make of the statement by HI that her father had touched her, and there was a risk that they might have treated it as evidence that the assaults had actually occurred.

101 In my opinion the Crown concession was appropriately made. Although the learned judge did direct the jury that the evidence was only evidence of 'consistency', there is a real risk that his directions may have led the jury to consider that the credibility of HI's evidence was supported by a complaint made close to the time the alleged assaults occurred. There might also be a risk of a miscarriage of justice due to his Honour's failure to draw the jury's attention to the fact that LE said she was eight or nine when the conversation occurred with HI, and also said that this conversation occurred shortly before the DD family left Broadmeadows, when she would have been 19 years old. I would therefore allow the appeal against the appellant's convictions on counts 6 - 8.

102 This makes it necessary to consider whether allowing the appeal on counts 6-8 also requires the convictions on the other counts to be set aside.

103 Counsel for the appellant submitted that, in finding the appellant guilty of counts 1 - 3, the jury must have been influenced by the fact that it had found him guilty of counts 6 - 8. Further, despite the warning against propensity reasoning, it was 'inconceivable' that the improper support given to HI's evidence by LE would not have carried over to the evidence of OA, since OA and HI were alleging similar conduct and had been attacked for colluding. Thus counsel contended that the appellant's convictions on all eight counts must be set aside.

104 For reasons which I explain below, the issues which must be considered in this context are also relevant to ground 4, which alleges that the trial judge erred in failing to give a direction to the effect that, before they could act on the evidence of OA and HI, the jury had to exclude the possibility of collusion or concoction. It is therefore convenient to consider ground 4 at the same time as I discuss counsel's submission that the Crown concession on grounds 6-8 requires the convictions on the other counts to be set aside as well.

105 The case put on behalf of the appellant at trial was as follows. In about April 2002 the appellant agreed to sell part of the land which he owned at Lake Boga to OA and her husband in return for $3000 and the payment of the costs of subdivision. Later that year he agreed to contribute to the costs of purchasing and moving a house to the property. In 2003 a dispute arose between OA and her parents and OA placed a caveat on the whole of the property to prevent it being sold. In 2004 OA and her sister HI sought legal advice about alleged abuse by their father in 1972 and 1973 and a writ was issued in the Supreme Court seeking damages for sexual assault of both daughters.

106 The appellant claimed that OA had had a friendly relationship with him until 2002, which was apparent from the fact that he had stayed in her flat when he visited Melbourne looking for work in 1986. The fact that he had stayed in her flat and that OA and her husband had holidayed with the appellant and her mother was said to be inconsistent with her allegations that the appellant had sexually abused her. It was said that OA had fabricated her claim of sexual abuse following the disagreement about the property and that that HI had made similar allegations to support her sister.

107 OA was extensively cross-examined about her previous friendly relations with her father, about whether she had paid the debt she owed her parents, about the dispute which had occurred between them in 2003 and about her reasons for consulting a solicitor. The following passages of cross-examination illustrate how the defence put its case that OA fabricated the story of alleged abuse, because of the property dispute.**

Counsel: The agreement was that you would meet the interest payments as they came up?

OA: It didn't matter whether we did or not, we paid for it.

Counsel: You paid October, November, December - - -?

OA: I'm sorry; but I never refused to pay and money's never been the problem. They've had my car for nine years, I never worried about it. They sold my things, kept the money. I never worried about it. Money's never been a problem. And this is not about money this, this is about what he did to me when I was young.

His Honour: Yes, we know that, but at the end of the day when the place was settled on 6 September '03, was he out of pocket in any way?

Counsel: In fact, it was around that time in January that relations went particularly bad between you?

OA: No. It went bad September 2002 after I found out what he did to others, then I found out he did it to, not just myself.

Counsel: I suggest to you that that conversation that you have mentioned in September 2002 never happened?

OA: It happened. And what happened to me when I was young, that happened too.

Counsel: Do you accept that a Supreme Court writ was issued?

Counsel: And I suggest to you that that writ has not been withdrawn at all?

OA: It is because I instructed my lawyer to withdraw everything because last time he made it out as if it was for money and it is not for money, it is because I want him to be punished for what he did to us and I have got a letter from my lawyer indicating that.

OA: I have sent a letter to my lawyer in August last year saying that we no longer required his services and I had given a letter to the solicitor and he has also - I recently asked him to send us a letter to confirm it and I have got the letter.

Counsel: In August 2005 - is this what you are saying. In August 2005 you instructed your solicitor to withdraw a writ?

OA: Yes, because I have got the letter to prove it.

Counsel: You say that you instructed your solicitor in August 2005 ---?

Counsel: But certainly up until that time you had a claim in the Supreme Court for damages from your father for the events that you say happened back in 1972, 1973?

OA: Yes, that's right. I didn't think the police would do anything about it because it happened a long time ago.

Counsel: When you say 2003 it was very late 2003, wasn't it?

Counsel: The solicitor, sorry, yes. You both went to the same solicitor to instruct and to commence those Supreme Court proceedings together?

OA: No, to start off with to ask for advice and he suggested we go and see a psychologist first, so we'd be able to talk about it easier.

Counsel: And the fact is OA, that you both fabricated all the criminal and civil claims together?

OA: No we did not fabricate anything, it happened and I wish it didn't but it did. We wouldn't have gone to all those courts if we fabricated something. Wouldn't go through all this.

Counsel: Well the - I am sorry, I worded it badly. The allegations against your parents bringing about - sorry, the allegations against your father which have brought about these proceedings really take root in your attempting to obtain property from your parents?

His Honour: No, just answer the question. Is that why you made these complaints - - -?

Counsel: But you didn't go to the police about those matters until January 2004 or late 2003?

OA: My lawyer advised me to go to the police and then I did.

108 OA's sister HI was also cross-examined about whether she had made allegations of sexual abuse to support her sister. The relevant passages of cross-examination were as follows.

Counsel: You knew didn't you that there were some - there had started some negotiations between them about some property, a portion of the property to be sold to OA and her family?

Counsel: You knew that the agreement had turned into arguments about the property - which part of the property, for example?

HI: At the start, no. There was no argument at the start.

Counsel: You knew there was animosity between OA and her husband on the one hand and your parents on the other hand over that issue?

At a glance

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Before

Source

Judgment (469 paragraphs)

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Legislation Cited (6)

Cases Cited (31)