R v D P [2007] VSCA 219

1 This Court, on 17 September 2007, dismissed the applications for leave to appeal against conviction and sentence and indicated that it would hand down its reasons at a later date. The following are the circumstances which led to the making of those orders.

2 The applicant was presented before the County Court, sitting at Ballarat, on two counts of incest (counts 1 and 2) and a single count of committing an indecent act in the presence of a child under 16 years (count 3). He pleaded guilty to count 3 but entered pleas of not guilty in respect of counts 1 and 2.

3 On 30 March 2006, the jury empanelled on his trial returned a verdict of guilty on count 2 but acquitted him on count 1. The applicant had no prior convictions.

4 After hearing a plea in mitigation of penalty, the sentencing judge, on 3 May 2006, imposed the following sentences:**

His Honour directed that one year of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 2. This created a total effective sentence of five years' imprisonment in respect of which a non-parole period of three years was fixed. His Honour further declared that pursuant to the provisions of the Sex Offenders Registration Act 2004, and by reason of the applicant's convictions on counts 2 and 3, he be registered as a Class 1 and 2 offender, respectively.[1]

5 The applicant subsequently lodged applications for leave to appeal against his conviction and sentence on the grounds that:

1. The learned trial judge erred in ruling the victim was competent to give evidence.
2. The learned trial judge erred by allowing the tender of [A]'s statement.[2]

1. The learned sentencing judge erred in concluding the applicant "offended in the belief he (the applicant) would be able to get away with it."
2. The learned sentencing judge had no evidentiary basis for concluding that those "who commit sexual offences against very young children are likely to feel some encouragement to offend as a result of the difficulty presented to authorities by the calling of very young witnesses."
3. The learned sentencing judge erred by placing too much weight on deterrence of others and insufficient weight on

b. The likelihood that the applicant would not re-offend

1. The strong character evidence called on behalf of the applicant.

1. The sentence was in all the circumstances manifestly excessive.

**6 The applicant, [DP], and the mother of the complainant, [A], were married in August 2002. There were two children of the relationship: the complainant [K], a female, born 5 August 2001; and [M], also female, born 3 March 2003.

7 In April 2005 the applicant and his wife separated. The two girls lived with their mother and the applicant had access rights.

8 On Monday 27 June 2005, the applicant collected his daughters under these arrangements and took them back to his home. Next morning, at about 9.15am, he had a shower with the complainant. The shower was situated over the bath. He washed her hair and then showered while she played at the other end of the bath.

9 In circumstances which were the subject of contention at the trial, K touched the applicant's penis, which she then placed in her mouth and sucked for a period of time, described at different times as '2-3 seconds' or 'about 23-30 seconds.'[4] She referred to his penis as 'Daddy's noo-noo'. 'Noo-noo' was the word the complainant used for her dummy (count 2).

10 The applicant withdrew his penis from his daughter's mouth, turned away and masturbated to the point of ejaculation (count 3). He pleaded guilty to this count.

11 Soon afterwards K left the bathroom and was dried and dressed by the applicant's mother.[5] The children were returned home that evening.

12 On the following day, K told her mother what had occurred. The police were notified and, on 30 June 2005, the complainant took part in a Video and Audio Taped Evidence (VATE) procedure. The recording was played to the court at the trial and K, who gave unsworn evidence by video link, adopted her statements as the truth which then constituted her evidence-in-chief.[6]

13 Later that day, the applicant was interviewed and charged.

14 During the interview, which was recorded, the applicant, to a substantial extent, admitted the allegations. He claimed however that the child had grabbed his penis unexpectedly, and without his instigation, and placed it in her mouth momentarily, but possibly for as long as 30 seconds. He then turned away and masturbated. He did not intend her to see him engaging in this activity and did not think that she had. He also said that his penis had been briefly inserted into the child's mouth on an occasion six months earlier in similar circumstances (count 1). He was acquitted on this count.

15 K told the interviewer in the VATE procedure[7] that she was three years old and went to kindergarten. In view of the grounds of the applications it is necessary to set out some of the detail of this interview. She was asked whether she knew what it meant to tell the truth and to tell lies. She initially referred to her mummy reading books to her at night, the contents of which she understood were make-believe and said that they were lies. She was asked, 'And if I said to you that you came here to the police station today in an aeroplane, would that be the truth or would that be a lie?' She replied, 'My mummy brought me here in the car.' She appeared confused when asked, 'So if I said that you came here in an aeroplane, would that be the truth or would it be a lie?' and responded that she did not know. This uncertainty provided the foundation for the contention that the child's evidence should not have been received. She said that everything she said on that day would be the truth

16 She described that she lived in her house with her mummy, her sister M, their two dogs, a cat and a goldfish. She said that daddy did not live with them because 'mummy and daddy didn't live happily ever after.' She said she would visit daddy at her grandmother's house, sometimes for a sleep-over and sometimes for dinner. She described the sleeping arrangements. She said she slept with her grandmother and M slept with daddy in his bed. She was asked about having showers in the morning with daddy and said -**

Well, I suck daddy's pretend noo-noo in the shower in the morning ... but it doesn't taste nice. ... It hurts my tongue when I suck daddy's pretend noo-noo in the shower in the morning ... and then I said, "Stop, daddy, don't put that in my mouth again" ... daddy says, "I won't any more".

She was asked what a noo-noo was and she replied it was something that she 'sucked at night time ... it was green or yellow or pink ... a pretend noo-noo is something my daddy does a wee in the toilet.' She said it had fur on it. She was asked to indicate where his pretend noo-noo was on his body and she said, 'right there,' and crouched down low. She was asked how it happens when she sucks her daddy's pretend noo-noo. She said, 'Well, if I go (jumps up and down) and it work, when I suck it all out, daddy goes ... (jumps up and down, and moves right hand up and down) with his hand to put it back in again.' She said it happened 'this week' and 'it looks skinny and furry and it goes ... (jumps four steps forward) and jumps around when you suck on it.' She said, 'It tastes furry and I don't like it.' She described it as being 'big and little ... it grows and then gets smaller again ... and it wobbles all around.' She was asked whether she had a pretend noo-noo and replied she had a real one at her house, and it was daddy who had a pretend noo-noo. She was asked to indicate where the pretend noo-noo was on daddy's body and pointed under her stomach between her legs.

**17 At the conclusion of the interview the complainant was asked whether she had told the truth about what had happened. She said, 'That has all been the truth.'

18 In cross-examination, the child generally accepted all propositions put to her by defence counsel. She agreed that while she was showering with her father, she touched his pretend noo-noo and that it became larger; while she was touching it, her father was doing other things like showering; while he was not looking she quickly put the end of his penis in her mouth; he turned away and said, 'Don't do that, that's not a noo-noo, it's a daddy thing; and then he did that thing with his hand and made it go away.'

19 In re-examination, she was asked whose idea it was to put daddy's noo-noo in her mouth. She said that it was her father's.

20 A, the complainant's mother, stated that K was born on 5 August 2001. She also had a daughter M, aged 3. The applicant was the father of both girls. After they separated in April 2004, she stayed in the family home with the girls and the applicant went to live with his parents.

21 On Tuesday 28 June 2005, the applicant and his mother returned the girls home after an access visit. On the following morning, A observed K playing with paper and putting it down her underpants. She said to the child, 'you're a girl and you don't have anything in the front, only boys do ... boys have willies.' K answered that she knew boys had willies because her daddy had one and daddy called it his 'shower noo-noo' or 'pretend shower noo-noo.' 'Noo-noo' was the term K used to describe her dummy. She said that she asked K what she meant. She said, 'It's my pretend shower noo-noo. Daddy let's me suck on it.' When asked to indicate where the 'shower noo-noo' was, K pointed to her groin area. As they were talking about it, K was also motioning with her hand in a masturbating motion and talking about the 'shower noo-noo going up and up.' A later showed her daughter a picture of the human body in 'My Body Book' and invited her to indicate where the 'shower noo-noo' was, and K pointed to the penis.

22 In cross-examination, she was asked whether everything in her statement was true and whether there were any omissions, to which she replied it was accurate. It was then put to her that there was nothing in the statement about the applicant calling his penis a 'shower noo-noo.' Counsel called for the statement and asked her to read it and to refer the court to 'any section that refers to ... K telling [her] that [the applicant] told her that his penis was his shower noo-noo.' The witness read from her statement, 'Daddy lets me suck his pretend noo-noo in the shower' and 'daddy likes it.' It was put to her that this was not the same as saying, 'Daddy calls his penis his shower noo-noo.' She said in explanation that 'Children adopt what they are told. She would not call it a noo-noo unless she had been told, because it was very different to her dummy.' The statement was tendered by the prosecution and its admission into evidence is the subject of the second ground of the application.

23 Senior Constable Joseph Cahir, of the Sexual Offences and Child Abuse Unit, stated that, on 30 June 2005, he conducted a VATE interview with K. A short time later, in the company of other police officers, he took the applicant into custody and drove to Ballarat Police Station where the applicant was interviewed. In the course of the journey, which took about six minutes, he covertly recorded a conversation between Senior Detective McLennan and the applicant.[8]**

24 In that conversation, the applicant said that the complainant had performed oral sex on him 'a couple of times. Jeese I thought that was a good idea.' The last time that it happened was the previous Tuesday. He said that she was -

still very attached to having her dummy when she goes to bed and she's been in the shower and says, "Oh! That looks like a dummy" ... she saw it as the same thing and just thought I can suck on it like her noo-noo. It's not like I told her to do this sort of thing ... I told her it's like a noo-noo but I said it's not. I said it's a daddy thing, something different.

He denied that he had instructed her to engage in oral sex. When asked for what length of time his daughter had sucked his penis, he replied, 'Oh, not long, a few seconds, probably 20 or 30 seconds at best. She just thought it was a good idea at the time.' He then masturbated and ejaculated. He said that there was one other occasion when this happened, 'ages ago.' He could not explain why he allowed it to happen again. When asked whether he knew that what had occurred was wrong, he replied, 'Yeah, it won't happen again, that's for sure.'

**25 In the tape recorded interview conducted at the police station, the applicant adopted the contents of this conversation. With respect to the incident that had occurred in the shower on the previous Tuesday morning he said, 'She did (perform oral sex on me) - decided my penis was a good alternative to her - what she calls her noo-noo ... and she did suck on it for a moment.' He said, 'After I washed her hair, she sort of turned around and grabbed onto bits of me ... my penis.' He was asked what happened then, to which he replied, '... as what happens with most men, if someone grabs onto your penis it's going to get excited.' He said that 'not much' of his penis went inside her mouth, 'about an inch.' At one stage he said that the activity would have continued for two or three seconds. At another point, he said that the child had his penis in her mouth for 'only about 20 or 30 seconds;' and later again he agreed that she had sucked his penis for 30 seconds. She stopped when he turned away and started shaving. He then masturbated to the point of ejaculation.

26 He said that there was another occasion, about six months earlier, when they were both showering, when K 'grabbed onto me with her hand ... and she put it in her mouth quickly, then stopped and went off to whatever else she was doing, playing with her rubber duckie or whatever she was doing at the time.' She sucked his penis 'for a couple of seconds.' On that occasion he did not have an erection and did not masturbate. He agreed that he recognised that it was wrong for a three-year-old girl to insert his penis into her mouth. He was asked whether he was aware that it was against the law, to which he replied, 'Yeah. I don't think I'll be having showers with her ever again.'

27 At the conclusion of the interview the applicant was asked his reason for engaging in this behaviour, to which he replied, 'It just accidentally happened. I can't say there's a reason.' He was asked whether his reason for not pushing her away from his penis after she first touched it on the second occasion was that he wanted to gain some sexual gratification. He replied, 'It's possible.' When asked his reason for performing an indecent act in his daughter's presence, he responded, 'I'm a very naughty boy? I don't know.'**

28 The applicant said that at the time of the second incident he was having a shower with K. After he had he washed her hair, she remained in the shower while he washed himself. He stated -

I was continuing to wash myself, and without knowing what she was doing, she stood up and came over and quickly grabbed my penis ... It would have been a split-second grab, it was just a grab, gone, and it wasn't like a full grab, it was just sort of quickly - just cupped her fingers and then went away.

He said that he began to have an erection. K had moved back to the other end of the bath. He said he was washing his hair with his head back and eyes closed when he 'felt something touching my part erect penis. Cleared my eyes out of water to see what was going on. There's K with just the end of my penis in her mouth.' He then said to her, 'No, that's enough of that ... That's just the daddy thing, not really a noo-noo.' He said he used the term noo-noo 'because that's what she decided to call my penis because she thought it looked like a noo-noo.' He thought that she had begun using this description for his penis not long after he started showering her. The penis was in her mouth for 'one and a half to two seconds.' He said that just before K grabbed his penis, 'I did hear her say she was going to have a taste.' There was 'a split-second' between her saying those words and her grabbing his penis. He then masturbated in the shower. He said he was facing away from her 'with no real plan of her having anything to do with it or seeing it ... I just did it and she was quite happy at the other end, not really worrying about anything else that was going on where I was in the shower.'

**29 He said the first incident occurred over a year before the trial in the shower. All he could remember was that 'it was so quick. She just grabs my penis, put it in her mouth'. He said that he turned away and that nothing was said. She had his penis in her mouth for 'about a second.'

30 He agreed that he told police that, in relation to the second incident, that the child sucked on his penis for 20 or 30 seconds before he masturbated. His explanation was he was 'shocked by being dragged by the police' and 'a bit confused' and 'just getting tired.' He was asked why he gave the response 'I'm a very naughty boy' when asked 'What is your reason for having her perform an indecent act on you - and you performing an indecent act in the presence of a child under the age of 16 years?' He replied -**

Well my own explanation for a comment like that is, it's just a part of my character. I occasionally say silly things and obviously in this case at very inappropriate times. I use humour to try and lighten stressful situations and that's what I did in this case. It's a bit hard to explain but it's just part of my nature'. ... At the time it was [so] quick and what I would've thought was just such an innocent thing that I didn't even think that it could be an offence, because it was done completely innocently. No real - there's no intent to do it. ... Not that you can go directly blaming a little girl, but she did - she did instigate this.

The Grounds of the Application against Conviction

**31 Counsel contended that when interviewed under the VATE procedure, K, who was very young at the time, evidenced difficulty in distinguishing between reality and the often magical make belief world of children. She appeared confused, it was said; when it was put to her that she had not travelled to the police station in a car with her mother, as she had stated but in an aeroplane. Her reference to mummy and daddy not 'living happily ever after' demonstrated the same confusion, the argument continued. I could not disagree more profoundly.

32 There is no doubt, having viewed the recording of the VATE procedure, that the child, who of course was only three years and 10 months old at the time, was puzzled by the assertion of the interviewer that she had travelled by aeroplane when she had just informed him that she had come to the police station by car and knew that his statement was simply wrong. Given her age, it is hardly surprising that she did not challenge him and quite unreasonable to regard her response as indicative of uncertainty in her mind as to the truth. With respect to the child's statement that 'mummy and daddy didn't live happily ever after,' not only did it accord with reality but sadly demonstrated that the little girl distinguished between the 'good lies' in the books that her mother read to her and the real world in which she lived.

33 K was interviewed very soon after the events in question and there is nothing in the interview that could give rise to any reasonable suggestion that she did not have a clear recollection of what had taken place. Nor is there anything which could reasonably give rise to a concern that she may have been confused, tutored or unable to distinguish between reality and imagination.

34 It is also not without significance that, in very large measure, her version of events was accepted by the applicant and is consistent with the undisputed evidence concerning the surrounding circumstances. Indeed, there was little difference between the versions of the child and the applicant, save that the applicant asserted that he did not initiate the activity. His explanation that his penis was involuntarily placed in the child's mouth for as much as 30 seconds or that he found himself unable to resist her actions was highly unlikely to have been taken seriously by the jury.

35 Nothing occurred during the trial that could be seen to cast doubt upon the capacity of the child to relate what had happened. There has been no suggestion advanced that the trial judge was not mindful of the principles to be applied when considering whether the child's evidence could be received, and there was no ground of appeal complaining that he fell into error in any specific fashion with respect to that question.

36 In these circumstances, the complaint that K was not competent to give evidence must be rejected.**

37 As I indicated earlier, when giving evidence-in-chief, the mother of K said that the child had told her that the applicant had referred to his penis as his 'pretend shower noo-noo.' She was cross-examined about that statement in the following passage, which I should add constitutes the entirety of the cross-examination directed to her:

[COUNSEL]: You've made a statement to the police about this matter, haven't you? --- Yes.

Did you put everything into that statement? --- Yes.

That you were told at that time? You didn't leave anything out? --- No.

If I were to say to you that in your statement there's nothing at all, about the [applicant] saying that he calls his penis his shower "noo-noo" would that surprise you? --- I was - I had just solely reported exactly what [K] told me.

Did you report that exactly in the record of interview that you made - in the statement that you made? --- It's exactly as I heard it.

I call for that statement. If the witness could be shown her statement please? (To witness) I'll ask you to read that please to yourself and direct the court to any section that refers to the [applicant] telling - I'm sorry, to any section that refers to [K] telling you that [the applicant] told her that his penis was his shower "noo-noo"? --- "Daddy lets me suck his pretend 'noo-noo' in the shower."

That's exactly what you said in the statement, isn't it? --- Yes.

That's not the same though as saying that, "Daddy calls his penis his shower noo-noo", is it? --- Children adopt what they are told. She would not call it a noo-noo unless she had been told, because it was very different to her dummy.

But she doesn't say - she didn't say to you, did she, "Daddy says it's his shower noo-noo"? --- Children don't talk like that.

She didn't say that to you, did she? --- They talk from themselves.

Answer my question, please. She didn't say that to you, did she? --- No, no.

So that part of your evidence in reply to [the prosecutor]'s questions wasn't right, was it? She didn't say that to you? --- I have made my statement. It's very clear what - what I reported.

Your evidence is what you say to this court. She didn't say to you that it was - that, "Daddy called it his shower noo-noo", did she? You inferred that from what she said, but she didn't say it to you, did she? --- Ok, no.

The prosecutor then argued that as the witness had been cross-examined about the contents of her statement, he was entitled to tender it. Counsel for the applicant responded that the witness had accepted the existence of a difference between her evidence and what she had said to the police at an earlier stage and therefore that the statement was not admissible.

**38 A was cross-examined with a view to demonstrating her unreliability on a matter to which reference was made in her written statement which was called for and identified as such by the applicant's counsel. It should be borne in mind that the applicant told the police that what had been from his perspective an involuntary minor contact had been reported by his vindictive wife. In that situation the prosecutor sought to tender the statement. He was, at least as far as the relevant portion was concerned, on good ground.[9] Whether the whole of the statement should have been admitted or excluded in whole or part in the exercise of discretion,[10] presented different questions to which no reference was made in the trial.

39 The statement was, save for the particular matter, completely consistent with the witness's evidence. Importantly, it contained nothing of substance bearing on the issues to be determined by the jury that added to what she had said in the witness box. It did however contain a deal of irrelevant material relating to the reaction of A upon hearing the child's statements and the steps taken by her to secure assistance and report the matter to the authorities. In no way could this material of itself be reasonably seen to impact adversely upon the applicant's position. Counsel for the applicant in this Court accepted that this was so but submitted that the admission of a statement containing the mother's responses would have been likely to stir the emotions of the jury and introduce a source of prejudice against his client. That argument cannot be accepted. As counsel accepted the additional material was not inherently prejudicial. The steps taken by the child's mother were clearly sensible and considered and her description of what happened was not expressed in emotionally charged language.

40 It is, of course, important that the evidence and materials provided to juries in criminal trials should be confined, as far as possible, not only to what is relevant and admissible but also to what is necessary for their determination of the issues that they have to decide. In the present matter, the jury was given the whole of a statement made by the witness in order to place one challenged part of the evidence into context. The better course for the judge to have adopted, in my view, would have been to admit only the relevant section. However his Honour was not asked to do that and it was certainly not argued before him, as it was in this Court, that some prejudice could attach to the applicant in consequence.**

The application for leave to appeal against sentence

41 In the course of sentencing the applicant, the judge stated -

It is in my experience highly exceptional for a child aged four-and-a-half to give evidence in court. Some assistance was given to her by the use of a VATE tape. Persons such as you who commit sexual offences against very young children are likely to feel some encouragement to offend as a result of the difficulty presented to the authorities by the calling of very young witnesses. Your counsel submitted at the end of the 20 to 30 seconds penetration you realised that you were doing wrong and desisted. It is my conclusion that you chose to offend in the belief that you would be able to get away with it, and I conclude that the deterrence of others from such conduct is of particular importance in this case.

42 The argument was advanced that there was no evidentiary basis for this conclusion and that, accordingly, his Honour had fallen into error. It is, I consider, obvious that the judge who has had vast experience in this area of the criminal law was acutely conscious of the fact that young children are not only particularly vulnerable as victims because of the features to which he adverted, but that it can be safely assumed are recognised as such by those who offend against them. His Honour's conclusion that the applicant believed that he was safe from repercussions when he offended against his daughter was clearly open in the circumstances. Rhetorically the question could be asked - is it likely or even realistic to suggest that he would have offended if he thought that he would be caught? There is no substance to this complaint.

**43 These grounds constitute particulars of a claim that the sentences imposed upon the applicant were manifestly excessive in the circumstances. In this context, emphasis was placed upon the applicant's background which indicated that he had otherwise been a person of good character. He was aged 35 years at the time sentence was imposed, had a good work history and no previous involvement with the criminal law. He had pleaded guilty to one of the counts, but as his Honour pointed out, that did not avoid the necessity for a trial to be conducted on the other and more serious charge on which he was convicted.

44 In my view, neither of the sentences nor the total effective sentence imposed upon the applicant could be appropriately described as unavailable in the proper exercise of sentencing discretion. The offence of incest is regarded as particularly serious in our society and carries a maximum possible sentence of 25 years' imprisonment, while the commission of an indecent act in the presence of a child under the age of 16 years is punishable by a maximum prison sentence of 10 years. I need refer to only one of the many statements made by members of this Court over the last 15 years which indicate the seriousness with which offending of the kind involved here against young children will be viewed.

Over the recent past, the large number of incest cases before the Court has made it apparent that the commission of incest, repulsive and unnatural as one would assume it to be, is not the rarity for which a civilised community may be expected to hope. It must be inferred that the large number of incest cases which this Court now sees is merely a fraction of the number of offences with which the court system as a whole is concerned and those which are occurring without report. It is clear that the high numbers, however, reflect less an increase in the commission of the offences than, rather, an increase in the confidence of victims that their report of the crime will be sympathetically received and investigated.

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.

**46 Specific and general deterrence assume great significance as sentencing considerations and, putting it bluntly, those who exploit and abuse young children, must anticipate that the response of our society, which our courts represent, will be severe.

47 Save for the matter earlier mentioned, no argument has been presented that the judge fell into any specific error and I have detected none upon perusal of the transcript and his sentencing remarks. He adverted to the various considerations upon which reliance was placed before us and there is no reason to suspect that proper regard was not had to them Finally the individual sentences, the order for partial cumulation and the non-parole period fixed do not bespeak error.**

1. [1] The length of the reporting period pursuant to section 34(1)(c)(ii) of the Sex Offenders Registration Act 2004 is the remainder of his life.

[2] Two further grounds 1 and 3 were abandoned and need not be addressed.

[3] The following summary, which has been prepared from the transcripts provided to the Court, does not set out all of the evidence given at the trial but is sufficient to set out the relevant background to the application.

[4] It is unclear whether the reference in the transcript to 2 or 3 seconds was a typographical error as a little later the applicant stated, 'Like I said, it was about - it was only about 20 or 30 seconds.'

[5] The applicant was at that time living with his mother.

[6] The unsworn evidence of a child can be received in circumstances designated in s 23 of the Evidence Act 1958 (Vic).

[7] Section 37B of the Evidence Act 1958 (Vic) was introduced into Victorian legislation by s 11 of the Crimes (Sexual Offences) Act 1991 (Act No 8 of 1991) and provides that in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence -

The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with a cognitive impairment or is under the age of 18.

The section also provides that subject to the trial judge's discretion to rule all or part of the contents of the recording as inadmissible, it will be rendered admissible provided that a copy of the transcript of the recording adheres to that section's service requirements and that the defendant and his or her legal practitioner are given reasonable opportunity to listen to and/or view the recording. The complainant, at trial, is placed in a remote witness facility (s 41E of the Evidence Act 1958) and after his or her competency to give evidence has been assessed and accepted by the trial judge (s 23 of the Evidence Act 1958), he or she can then give further evidence-in-chief and be cross-examined.

[8] A CD of the covertly recorded conversation was tendered as exhibit C.

[9] See section 36 of the Evidence Act 1958 which reads:

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the cause or prosecution without such writing being shown to him. But if it is intended to contradict such witness by the writing, his attention must before such contradictory proof can be given be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always that it shall be competent for the court at any time during the trial or inquiry to require the production of the writing for inspection and the court may thereupon make such use of it for the purposes of the trial or inquiry as the court thinks fit.

[10] With respect to the use of a document in a trial, the court has the power to compel its tender. See Hrysikos v Mansfield (2002) 5 VR 585, 506, [80] where Eames JA stated:

[Section 36] is couched in terms sufficiently wide to cover such situations as cross-examination before a jury which would give a false or misleading impression that a document was inconsistent with the witness's evidence. In those circumstances, in my view, the judge or magistrate would retain the power to compel one or other party to tender the document. The power of the judge or magistrate to compel tender under s 36 is recognised by the authorities, in my opinion... . Even when the contents of the document are not referred to explicitly in cross-examination, the manner in which cross-examination proceeds may still lead to the obligation being imposed on counsel to tender the statement. For example, if a statement is placed in the hands of a witness and he is asked "having read that do you stand by your evidence?" then the statement may be required to be tendered by counsel who asked the question, in order to dispel any unfair suggestion that his statement was at odds with his evidence ... .