R v D W B [2008] VSCA 223

1 The applicant, DWB, was presented for trial in the County Court at Melbourne on 21 counts, variously formulated, of having sexually abused his two daughters, CL and SB. The jury convicted him on 19 of those counts. He was acquitted on counts 1 and 16.

2 The offences in question were said to have occurred over a 14-year period between January 1971 and December 1984. Counts 2 to 8 and count 10 alleged indecent assaults upon CL who was, at all relevant times, below the age of 16. These offences were said to have taken place between 1971 and 1978. Count 9 involved an act of gross indecency with CL. Counts 11 to 15 alleged indecent assaults on SB who was also, at all relevant times, below the age of 16. The offences in counts 11 to 13 were said to have taken place between about 1973 and 1977 and the offences in counts 14 and 15 between 1976 and 1980. Count 17 involved an act of gross indecency with SB. Count 18 alleged an act of sexual penetration with SB and was said to have taken place between 1981 and 1983. Counts 19 to 21 were counts of indecent assault upon SB, and were said to have taken place between about 1982 and 1984.

3 The Crown alleged an ongoing course of sexual abuse by the applicant. Several of the counts were said to operate as representative offences. The prosecution indicated at all times that it intended to adduce evidence not only of the particular offence the subject of each count, but also of the general pattern of sexual abuse. As indicated, each count was framed on a 'between dates' basis.

4 A number of the counts (2 to 4 and 8 to 15) were particularised in such a way that the specific conduct, which the Crown alleged gave rise to the offence charged, was described simply as the 'first occasion'. It will be convenient to refer to these counts hereafter as the 'first occasion' counts. This method of providing particulars was used in relation to those counts where the particular complainant claimed that the type of conduct alleged had occurred continually, and repeatedly, throughout the entire period designated in the count. The Crown relied upon Director of Public Prosecutions v His Honour Judge G. D. Lewis[1] as authority for using that method of particularisation.

5 The difficulty from the Crown perspective was that it was clear from the depositions that neither CL nor SB had any recollection of any specific occasion on which the offence charged within these 'first occasion' counts took place. Neither complainant could differentiate between the 'first occasion' and any other occasion. It was that fact, coupled with the use of 'first occasion' particulars, that prompted the applicant to apply to the trial judge for a permanent stay of these counts. It was submitted that to permit the trial to go forward on this basis, in relation to these counts, would amount to an abuse of process.

6 The Crown replied that if the jury were satisfied that the applicant had engaged in systematic abuse over a long period, as each complainant claimed, there must logically have been a 'first occasion' on which that occurred. The fact that neither complainant could identify that 'first occasion' was of no consequence. DPP v Lewis stood as authority for the proposition that this method of providing particulars was acceptable.

7 Undaunted, the applicant challenged what counsel contended was a reliance by the Crown upon a notional, rather than actual, 'first occasion'. Counsel submitted that the Crown's approach meant, inevitably, that there would be no evidence capable of supporting a conviction in relation to any of the 'first occasion' counts. That was because the jury could not be satisfied, on the complainants' evidence, that the applicant had committed the specific act that was designated by the Crown as the offence charged. Counsel further submitted that the Crown was seeking to have the accused convicted on the basis of propensity reasoning and nothing more.

8 As previously indicated, the applicant sought a permanent stay of the 'first occasion' counts. That application was refused. The trial judge accepted the Crown's submission that although neither complainant had any memory of a 'first occasion', there must logically have been one. Provided that the jury were satisfied that this 'first occasion' took place within the general parameters of each count, as particularised, it would be open to them to convict.

9 His Honour's refusal to grant a permanent stay in relation to counts 2 to 4 and 8 to 15 forms the basis of ground 1 of this application for leave to appeal.

10 Ground 3 raises essentially the same point. The applicant contends that, having heard the complainants acknowledge under cross-examination that they had no memory of any 'first occasion', and could not distinguish any such occasion from any other occasion, the trial judge wrongly rejected a 'no-case' submission made in relation to these counts.

11 Ground 5 complains that the trial judge went even further. His Honour ruled that the applicant's counsel could not submit to the jury that her client should be acquitted on the 'first occasion' counts on the basis that neither complainant had any memory of any such occasion, and could not distinguish it from a multitude of other instances.

12 Finally, in this regard, ground 9 complains that the verdicts on the 'first occasion' counts are unreasonable and cannot be supported having regard to the evidence. In effect, it is said that the convictions on these counts are 'unsafe and unsatisfactory'.

13 It is convenient to deal with grounds 1, 3, 5 and 9 together.

14 The starting point is, of course, that an accused person is entitled to have any criminal charge brought against him or her properly particularised.[2] Where the Crown alleges a course of conduct 'between dates', it will always be a question of degree as to whether the evidence led possesses sufficient particularity to enable the subject of the actual count to be identified. When the count is particularised on a 'first occasion' basis, the evidence must enable that first occasion to be distinguished from all others.

15 In DPP v Lewis, this Court was confronted with essentially that very issue. The case involved an application by the Director of Public Prosecutions for prerogative or declaratory relief in relation to a ruling by a County Court judge. The accused had been charged with eight counts of indecent assault, one of attempted gross indecency, one of gross indecency, and one of incest, all in relation to his daughter. The offences were said to have been committed some 20 to 25 years earlier. The prosecution alleged a course of conduct involving sexual abuse by the accused. Each count was selected as being representative of a series of offences. As in the present case, the prosecutor indicated that he intended to adduce evidence not only of the particular conduct the subject of the specific counts, but also of the overall pattern of sexual abuse.

16 Not surprisingly, the accused sought particulars. The particulars provided referred to the 'first occasion' of the alleged series of offences. They claimed that the offence charged had taken place between the dates specified in the particular count.

17 Notwithstanding the provision of those particulars, the trial judge ordered a stay in respect of all counts of that nature. He held that the counts were latently ambiguous by reason of their failure to identify the particular act charged. Accordingly, the accused was being denied procedural fairness.

18 This Court, in DPP v Lewis, granted the declarations sought by the Director of Public Prosecutions. It held that the charges, as particularised, were not latently ambiguous. Nor were they bad for duplicity. By specifying, in the particulars, that the offence charged was the 'first occasion' on which the conduct occurred, to the exclusion of all other such occasions, and by electing to prove beyond reasonable doubt that that offence had indeed been committed, the prosecution had provided the measure of particularisation required to indicate the case the accused had to meet.

19 The judgment of the Court of Appeal was delivered by Tadgell JA. His Honour observed that the 'first occasion' technique adopted by the Crown in that case appeared to have been pioneered by the New South Wales Court of Criminal Appeal in R v Beserick.[3]

20 The reason why the Crown had gone to such elaborate lengths to particularise the offences in that way was that the High Court had held, in S v R[4] that unparticularised offences of a continuing nature could not be permitted to stand. In that case, three convictions for incest were set aside. In relation to each count, the act was said to have taken place on a 'date unknown', but within a 12-month period. The accused had, of course, sought particulars. However, the Crown had refused to provide them.

21 The difficulty in S v R was much the same as that presented in this case. There, the evidence suggested numerous acts of intercourse committed between the dates specified in each of the three counts. The daughter was able to particularise only two such acts. One was said to be different because it was the 'first occasion' on which intercourse took place. She recalled the other because on that occasion the accused had worn some of his wife's clothing.

22 The problem identified by the High Court was that the daughter could not fix either of the two incidents that she could specifically recall to any specific period referred to in the indictment. It was held that the jury had therefore been invited, in effect, to convict the accused on the three counts charged provided they were satisfied only that he had had intercourse with his daughter on three occasions. That was so irrespective of whether they were satisfied that the act of intercourse that was proved was the same as the act of intercourse that was charged. This was held to be unacceptable.

23 In DPP v Lewis, Tadgell JA went to considerable lengths to distinguish S v R. His Honour noted that in that case, the Crown, being unable to call evidence that allowed any of the three counts charged to be distinguished from any of the other acts of intercourse, had declined to elect to proceed in reliance on any particular act or acts of intercourse. That course rendered each of the three counts latently ambiguous in the particular circumstances of that case.

24 According to Tadgell JA, the position in DPP v Lewis was quite different. His Honour said:

The selection of a single instance within the period covered by any one count avoids a position such as that in S. v. R. in which, as Gaudron and McHugh JJ put it at 286, "[e]ffectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed". By tying itself to the "first occasion" of an offence charged by the presentment and described in the particulars, the Crown undertakes to prove that the offence charged occurred during the period specified, and to prove also that no offence answering the given description occurred earlier, whether within the specified period or outside it. It is further to be noted that in S. v. R. (so far as appears) the only charges against the accused man were of sexual intercourse, each on a date unknown within a specified period of 12 months; but that evidence was given by the complainant of many acts of intercourse by the accused with her, the physical circumstances of any one of which were (again, so far as appears) indistinguishable from those of any other, save for the two occasions that I have already noted. One of these was the "first occasion", but that characteristic was of no use by way of particularisation because the first occasion was not necessarily the subject of one of the three counts. Here, by comparison, the act of the "first occasion" is specifically charged and, moreover it is charged alone. Again, the circumstances alleged here in respect of any one count of sexual abuse of the complainant are readily distinguishable from the circumstances alleged in respect of any other such count."[5]

25 Having explained why the facts in S v R were distinguishable, and why the provision of 'first occasion' particulars in DPP v Lewis had been sufficient, Tadgell JA sounded an important and prescient note of caution. He said:

I need not go so far as to say that a designated act charged as a criminal offence will always be sufficiently particularised if described as the first in a series of such acts committed by the accused between specified dates. I am, however, satisfied to say that, in this case, the particulars of counts 3 to 8 cannot at present be properly shown to be insufficient fairly to indicate the case the accused is required to meet. Accordingly I consider that the learned judge erred in ordering, on the grounds he assigned, that those counts be permanently stayed.[6]

26 DPP v Lewis has been considered by other intermediate appellate courts. In R v Baker, ex parte Attorney-General,[7] the Queensland Court of Appeal dealt with a remarkably similar case. The matter came before that Court in the form of a reference by the Attorney-General. The indictment in question had contained two counts of indecently dealing with a girl under the age of 12 on a two-year 'between dates' basis (counts 1 and 2); one count of rape during the same period (count 3); and one count of indecently dealing with a girl under 17 on a five-year 'between dates' basis (count 4). All offences were alleged to have been committed against the same girl.

27 After adverse rulings by the District Court judge, the prosecutor entered a nolle prosequi on counts 2 and 3. Counts 1 and 4 were adjourned. The entry of the nolle prosequi enlivened the jurisdiction of the Court of Appeal under the Criminal Code Act 1899 (Qld) allowing for a reference by the Attorney-General.

28 Mackenzie J (with whom McMurdo P and Williams JA agreed) wrote the leading judgment. His Honour noted that the District Court judge in Baker had upheld an objection by counsel for the accused that the Crown had failed to provide adequate particulars of counts 2 and 3. According to that District Court judge, the best the Crown could do was to say that the act charged was the 'first occasion' on which intercourse took place. In Mackenzie J's view, that method of particularisation was not sufficient, at least in the absence of any identifiable objective external fact or event. A reference in each count to the location having been the accused's room did not cure the problem. That same particular applied to every other occasion as well.

29 The question formulated for the consideration of the Court of Appeal in Baker was as follows:

Can specifying an alleged act as the "first occasion" when conduct of a certain type was conducted be sufficiently particular to identify the offence charged?[8]

30 Mackenzie J answered that question in the following way:

Whether the requirement that an act charged be sufficiently particularised can be satisfied by defining a count as "the first occasion" when a series of essentially identical acts have occurred will depend on the circumstances. For example, if a complainant alleged that two offences occurred in a similar way in the same room of a house during a recent period while the complainant was staying with relatives for a short holiday, but was unable to identify specific dates, it could hardly be correct to deny that identification of one of the alleged acts as the first and one as the last provided sufficient particularisation.

In that example, the circumstance that the offences were recent minimises the risk that an accused person will have lost the means of testing the complainant's allegations adequately. On the other hand, where there has been a long delay, the period in which the particular offence is alleged to have occurred is lengthy and there are insufficient features in the evidence which would enable an accused person to identify a particular occasion upon which the act is alleged to have occurred an accused person will have no real means of testing the complainant's allegations. [9]

In the case upon which the reference is based, the offences are alleged to have occurred many years ago over a span of years. In such a case, the absence of objective external facts, events or circumstances, which differentiate a particular count from other alleged offences of the same kind committed within the same period will ordinarily make it insufficient for the offence to be described as the "first occasion".[10]

32 Williams JA, in a short concurring judgment, summarised the position as follows:

Whilst the expression "the first occasion" may well have temporal meaning for the maker of the statement, it will not necessarily convey that (or indeed any) meaning to another person, unless the context in which it is used attributes such meaning to it. Unless the context includes some objective criteria the use of the phrase may well indicate something different according to the knowledge and experience of the person called upon to ascribe meaning or significance to it. Only context would result in the phrase identifying an event.

The question posed for the court to answer requires consideration of the use of the phrase "first occasion" as part of particulars intended to apprise an accused person of the particular act, matter or thing alleged as the foundation of the charge; such particulars are considered necessary in order to give an accused person every fair opportunity of preparing his defence.

As Mackenzie J has pointed out in his reasons, where the events in question occurred many years ago, and more particularly where repeated acts are involved or regular conduct is alleged, the use of the phrase the "first occasion" is not of itself conducive to clearly defining the act, matters or thing in issue. As is evident from the reasoning in Longman v R [1989] HCA 60; (1989) 168 CLR 79, where there has been lengthy delay in bringing a prosecution, the fairness of the trial may be impaired where the acts alleged to constitute the offence are not clearly disclosed to the accused.

But that is not to say, as is demonstrated in the reasons of Mackenzie J, that the phrase may never be capable of identifying with the sufficient particularity the conduct alleged to constitute the offence. In such a case it is the context in which the expression is used that gives it significance.

If a small number of events are alleged to have occurred within a relatively short, recent time frame then it may well be that the events are sufficiently differentiated by describing one as the "first occasion".

The use of the phrase "first occasion" when supplying particulars of alleged criminal conduct will usually give rise to consideration of the problems discussed in cases such as S v The Queen [1989] HCA 66; (1989) 168 CLR 266, R v S [2000] 1 Qd R 445, R v Fisher CA No 439 of 1994, 12 December 1994, R v Knuth [1998] QCA 161, CA No 64 of 1998, 23 June 1998, and R v Rogers CA No 445 of 1997, 6 May 1998. Whether or not the particulars supplied satisfy the text laid down in cases such as Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489-491 will depend on the circumstances of each case.

I agree with all that has been said by Mackenzie J in his reasons and with the way in which he would answer the question posed for the court's consideration.[11]

33 The conclusion reached by the Court of Appeal in Baker that it was insufficient to allege offending on a 'first occasion' basis, without more, accorded with earlier Queensland authority.[12]

34 The Crown suggested that Baker may be at odds with R v Liddy,[13] a decision of the Full Court of the Supreme Court of South Australia. The Crown submitted that Liddy was correctly decided, and that Baker was incorrect, and should not be followed in this State.

35 We reject the Crown's submission in that regard. It is by no means clear that Liddy is in direct conflict with Baker. In any event, we consider Baker to have been correctly decided. The approach taken by the Queensland Court of Appeal in Baker dovetails neatly with the specific warning given by Tadgell JA in DPP v Lewis when this Court approved the use of a 'first occasion' mode of particularisation.

36 Such a technique will not overcome the difficulties identified in S v R unless there is some way that the specific act that constitutes the offence charged in any particular count can be identified and distinguished from all other similar conduct.

37 In the present case, there was no basis upon which that could be done. Neither CL nor SB had the slightest idea of what the 'first occasion' on which they were indecently assaulted might have been. It was not sufficient for the Crown to say, as it did in this case, that there must, logically, have been a 'first occasion'. Of course, that is true. The difficulty is that there is no evidence to support the count as formulated and particularised. The principles that were so carefully formulated in S v R, though seemingly technical, reflect a need to ensure fairness to an accused who is otherwise faced with an impossible situation whereby it cannot be said with any certainty what charge he or she must meet. Those principles are not to be circumvented by the use of what is essentially nothing more than a linguistic device, devoid of any substance or meaningful content.

38 There is a further difficulty with the Crown's position. Tadgell JA observed in Lewis that when the Crown ties itself to a 'first occasion' method of particulars, it, of course, undertakes to prove that the offence charged occurred within the period specified in the count, but it also goes further. In his Honour's terms, the Crown undertakes 'to prove that no offence answering the given description occurred earlier, whether within the specified period or outside it'. If that observation is correct, and it seems to us plainly to be so, then the Crown, in particularising on a 'first occasion' basis, may in fact be assuming a burden that will not always be easy to discharge.

39 In any event, the position in the present case seems tolerably clear. The evidence given by the complainants fell well short of proving that the offence charged within any of the 'first occasion' counts took place during the period specified. The offence charged was said to be the 'first occasion'. However, neither complainant had the vaguest recollection of any feature of that offence that would allow her to say that this was indeed the first time it had occurred, and that no other offence of a like character had taken place beforehand.

40 It follows from this analysis that the convictions on counts 2 to 4 and 8 to 15, being the 'first occasion' counts, cannot stand. At least at the end of the Crown case, the trial judge ought to have directed an acquittal on those counts. Accordingly, ground 3 must succeed. The convictions on counts 2 to 4 and 8 to 15 will be quashed and judgment and verdicts of acquittal entered in their place.

41 It is unnecessary, in these circumstances, to determine whether the trial judge erred in failing to grant a permanent stay. Ground 1 need not therefore be further addressed.

42 The same is true of ground 5. However, we should say that in our view that ground has clearly been made out. His Honour ought not to have precluded the applicant's counsel from urging the jury to acquit on the basis that the complainant relevant to each count could not recall the first occasion that activity referable to that count took place.

43 That leaves the question of the remaining eight counts to be determined. These are counts 5 to 7 and 17 to 21. It was submitted on behalf of the applicant that the convictions on those counts should be quashed as well as those that fell within the 'first occasion' grounds of appeal. It was contended that the jury might have used the evidence in support of the 'first occasion' counts as the basis for convicting the applicant on the remaining counts.

44 One difficulty with that submission is that it assumes that the jury would have disregarded the trial judge's clear and powerful direction that they consider each count separately. His Honour said:

... as you are aware the accused man is facing 21 counts here. They are being heard together as a matter of convenience since, as you would appreciate, there would be a considerable duplication of evidence if each count was being tried separately and we had to go through 21 trials. It would be at a great inconvenience and great cost. But the point I want to make is that the accused man is entitled, as is the Crown, to a separate consideration by you of each of the offences charged. Now, it might be that the same logic applies to some of them or all of them but it would be quite wrong to say that simply because you found the accused guilty or not guilty on one count he must be guilty or not guilty, as the case may be, on other counts. Each count must be considered by you separately in the light of the evidence that applies to it and you must ask yourself as to each count separately, "Has the Crown satisfied me beyond reasonable doubt by the evidence that the accused man is guilty of this crime?"

45 The trial judge also differentiated quite specifically between the 'first occasion' counts, and those that were based upon what he termed a 'specific, discrete incident'. His Honour directed the jury that, as to counts 2 to 4 and 8 to 15, the evidence was that what had occurred took place on a number of occasions, and that the Crown relied on the first of those occasions as the basis for the actual offence charged. Indeed, he went further and differentiated between the first occasion counts themselves, pointing out, for example, that counts 2 to 4 were all alleged to have taken place on the couch, while others were said to have taken place in other parts of the home.

46 Unlike some others, this was not a case in which cross-admissibility featured. The jury were also given a strong warning regarding the use of 'uncharged acts'. That warning had been given earlier in the trial as well. These were said to fall into two categories. First, there were some uncharged acts where a specific act had been charged, and then there were other occasions where the applicant was said to have done the same or a similar thing many times.

Now, what I want to do is to repeat the warning which I gave you with respect to these uncharged acts and there are many of them of which evidence was given here. It is this, that the evidence of these uncharged acts is called by the Crown to place the evidence of the offences charged into what it says is a realistic contextual setting in which the offences charged are alleged to have occurred and to assist you in evaluating it.

The first thing you have to consider is do you accept that the evidence that the uncharged act or acts occurred and then if you do there are two things I want to stress. Firstly, that the commission of the offence as charged can be proved only by the evidence relating to it, not by evidence of uncharged acts and you cannot substitute the evidence of uncharged acts for evidence of the offence charged. The accused man can only be convicted on any count if you are satisfied beyond reasonable doubt that the facts alleged with respect to that count occurred.

Secondly, you must not reason that because the accused man did what is alleged by way of uncharged acts, if in fact you do accept that he did what is alleged, that he was the kind or sort of person likely to have committed the offence charged. You must not reason in that fashion.

48 It is clear therefore that his Honour gave the jury a strong warning against propensity reasoning. No exception was taken to that warning, and no challenge has been made to its adequacy on the appeal to this Court.

49 Indeed, his Honour went on to fortify these directions. He reminded the jury, yet again, that they had to consider each count and the evidence relevant to it separately. He instructed the jury that they were not to reason that if the applicant had committed an offence against one of the complainants, he was the kind of person likely to have committed an offence against the other.

50 It should not be readily assumed that the jury would have disregarded clear and specific directions of this kind. The fact that the applicant was acquitted on counts 1 and 16, though convicted on all others, strongly suggests that the jury understood that they had to consider each count separately, and did so. We therefore reject the overall submission that once the convictions on the 'first occasion' counts are quashed, all other convictions must be quashed as well.

51 There are, however, three remaining grounds of appeal that, if made good, might lead this Court to set aside the remaining convictions, and order new trials on those counts.

52 Ground 8 complains of a failure on the part of the trial judge to give an appropriate Longman[14] warning. Ground 10 asserts that the verdicts on the non-'first occasion' counts are unsafe and unsatisfactory, not in the broad sense described in M v The Queen,[15] but rather in the aggregation of specific errors sense spoken of in R v Kotzmann.[16] Ground 11 has three components. It contends that the trial judge wrongly permitted the Crown to lead evidence of uncharged acts, failed to direct the jury adequately as to the use that could be made of those uncharged acts, and misdirected the jury as to the standard of proof applicable to the evidence of those uncharged acts.

53 So far as ground 8 and the Longman warning is concerned, the period of delay in this case, with a number of counts going back almost 40 years, plainly made it necessary for such a direction to be given. His Honour warned the jury about the serious consequences of the lapse of time since the alleged offending.

What I want to say is, is that because of this delay here the accused man has been seriously disadvantaged in his defence of these charges. In particular, he has suffered the following disadvantages. He has lost the opportunity to make inquiries at or close to the time of the alleged incidents and this may have affected his ability to discover the truth ...

He has lost the ability to explore the alleged circumstances in detail soon after the offences are said to have occurred and such an exploration may have uncovered evidence which might have thrown doubt upon the allegations by [CL and SB], or confirmed the accused's denial of the charges.

He has lost the means of possibly testing their evidence which would have been available had there been no delay in the prosecution.

55 The trial judge went on to say that because of the delay, neither CL nor SB had been able to identify, with any precision, the occasions on which the offences were alleged to have been committed. Indeed, they had been 'very vague' as to when the offending occurred. That fact had worked to the disadvantage of the applicant. Because of those matters, his Honour directed the jury that they had to take that disadvantage into account when determining whether the charges brought had been proved.

56 In accordance with Longman, the trial judge also pointed out to the jury the possible effect of the lengthy delay in bringing these proceedings on the reliability of the memory of the complainants. He emphasised that the risk of distortion and error was all the greater if the person making the complaint was young when the alleged offence took place. He said to the jury:

It is therefore important that you carefully consider not only whether the evidence of each of [CL and SB] is honest in the sense that each believes it to be true, but also whether it is in fact true ... You must keep in mind the possibility that they honestly believe what they are saying but are mistaken due to the distortion of their memory.

The risks I have just told you about, because of delay, will be of particular significance in this trial if you find that the evidence of either complainant is unsupported by any independent evidence and for that reason you must consider carefully whether there is support for the evidence of each complainant.

58 His Honour then identified four areas in which it could be said that there was supporting evidence of an independent nature available to be considered. There has been no challenge to his Honour's directions in this regard.

59 Having completed his charge regarding the risks associated with delay, his Honour went on to give the jury a more general warning regarding the need to scrutinise the evidence of the complainants with particular care. He said

... I direct you that you must scrutinise each complainant's evidence with great care before convicting on the basis of that evidence alone, if you conclude that the evidence stands alone. And you must be satisfied beyond reasonable doubt that in that situation that each complainant's evidence is accurate and reliable before you can convict the accused with respect to the offences which relate to that complainant.

60 The trial judge then returned to the matter of delay. He directed the jury as follows:

However, in this case, that is if the evidence of either complainant stands alone, I will have to go a stage further and tell you this, that because of the risks arising from the delay that I have told you about, I must warn you that it would be dangerous to convict the accused on the basis of the unsupported evidence of either complainant alone unless after scrutinising her evidence with great care and considering the circumstances and factors that I have drawn to your attention and paying heed to the warnings I have given you, you are satisfied beyond reasonable doubt of its truth and accuracy.

If however you are satisfied beyond reasonable doubt that the evidence of the complainant is supported in any manner indicated by any of those four areas of evidence, then the warning I have just given you does not apply. It only applies if you conclude that the evidence of one of the complainants is unsupported, that it stands alone.

As I have said, if it is supported, if you conclude that there is supportive evidence that the warning I have given you does not apply and that is because in such circumstances that complainant's evidence does not stand alone and common sense and experience indicate that the witness' evidence about an incident can more readily [be] accepted if it is supported by other evidence. That does not mean that you can disregard all that I have just said about the risks that arise due to a lengthy delay in bringing the matter to trial such as here ...

61 The applicant now complains before this Court that these directions would have left the jury with the mistaken impression that the Longman warning previously given would not apply if there were any supporting evidence available.

62 In some ways, that is an extraordinary submission. It flies in the face of his Honour's express direction to the jury that even if they found that there was supporting evidence, that did not mean that they could disregard all that his Honour had just said about the risks associated with a lengthy delay in bringing the matter to trial.

63 On a fair reading of the trial judge's directions to the jury, we are not persuaded that the effect of the Longman warning was diminished by anything said about supporting evidence. The fact that there was no exception taken to this aspect of his Honour's charge suggests that counsel who appeared for the applicant at the trial regarded the directions given as adequate. The significance of that fact should not be understated.[17]

64 As we have indicated, ground 10 is based entirely upon the doctrine enunciated by this Court in Kotzmann. The principle there stated has no application to this case. If there is no substance in grounds 8 and 11, there is no reason to think that the verdicts of guilty on the non-'first occasion' counts are in any way unsafe or unsatisfactory.

65 That takes us to ground 11. As regards the first part of that ground, there is a short answer. The trial judge was not, at any stage, asked to exclude any evidence of uncharged acts. That evidence was plainly relevant so as to put the evidence of the offences charged into a 'realistic contextual setting', as his Honour told the jury. Although in HML v The Queen,[18] the High Court indicated that it might be preferable to avoid the use of the term 'uncharged acts' when directing a jury, it was not suggested that the use of that term would of itself give rise to a miscarriage of justice.[19]

66 We have already set out in some detail his Honour's directions to the jury regarding uncharged acts. No exception was taken to those directions. No error of any consequence has been demonstrated.

67 Finally, we turn to the third component of ground 11. It is now said, before this Court, that the High Court's recent decision in HML meant that the jury in this case ought to have been directed that they could not act upon evidence of uncharged acts unless satisfied beyond reasonable doubt of the existence of those acts.

68 In R v Sadler,[20] a recent decision of this Court, the decision in HML was carefully considered. In a joint judgment (Nettle, Redlich and Dodds-Streeton JJA), it was noted that in HML, a majority of the High Court held that where an accused is tried for a sexual offence in a common law jurisdiction, and the Crown seeks to adduce evidence of uncharged sexual acts by the accused towards the complainant in order to show that he had a sexual interest in the complainant, the admissibility of that evidence is to be determined in accordance with the test laid down in Pfennig v The Queen.[21]

69 According to the joint judgment in Sadler, three members of the majority in HML (Gummow, Kirby and Hayne JJ) went further, and also held that if evidence of uncharged acts of sexual conduct is admitted, then regardless of the purpose or purposes relied on for that admission, it is necessary to direct the jury that they are not to act on the basis of the uncharged acts unless satisfied that they are proved beyond reasonable doubt.

70 There were different reasons given by the three members of the High Court who expressed that view. It is extremely difficult, in any event, to distil a ratio from HML, and unclear whether the opinion expressed by those three judges represents the law on this point. There seems little doubt that three other members of the Court (Gleeson CJ, Crennan and Kiefel JJ) did not share that opinion. The position taken by Heydon J, the fourth member of the majority, on this point is somewhat uncertain.

In face of the competing views expressed in HML, we respectfully understand the ratio of the decision to be limited to this: that where evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig, and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in a complainant unless satisfied of that beyond reasonable doubt.[22]

With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable jury would differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts.[23]

73 Their Honours then went on to say that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use they may or may not make of such evidence, would vary according to whether the Crown relied on such evidence to establish propensity, or merely for 'contextual and explicative purposes of the kind adumbrated by Crennan and Kiefel JJ in HML'.[24]

74 None of this is terribly satisfactory. The law on uncharged acts is now in a state of considerable uncertainty. What is plain, however, is that in the present case, the Crown specifically eschewed any reliance upon uncharged acts by way of propensity. The trial judge directed the jury in the clearest of terms that they could not use the evidence relating to uncharged acts as going to anything other than context. There was no real risk that the jury would misunderstand that direction. In accordance with the reasoning in Sadler, therefore, there was no obligation on the part of the trial judge to give a separate direction about the standard of proof applicable to uncharged acts.

75 It follows, as we have said, that the convictions on counts 2 to 4 and counts 8 to 15 must be quashed. Acquittals will be entered in relation to those counts. The convictions on the remaining counts will stand.

76 There was a Crown appeal against sentence in this matter. That has been overtaken by our finding that the appeal against conviction must be allowed in relation to certain counts.

77 The applicant was sentenced to the following sentences in relation to the non-'first occasion' counts:

78 Originally, the applicant received a total effective sentence of five years with a non-parole period of three years in relation to the 19 counts on which he was convicted. He now stands convicted of eight counts only. It follows, in accordance with s 569(1) of the Crimes Act 1958, that his sentence on those counts must be reviewed by this Court.

[1] [1997] 1 VR 391.

[2] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 486; S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 277.

[3] (1993) 30 NSWLR 510, 520 ff.

[4] [1989] HCA 66; (1989) 168 CLR 266.

[5] [1997] 1 VR 391, 399-400.

[7] [2001] QCA 59; [2002] 1 Qd R 274.

[12] R v Fisher [1994] QCA 537 and R v Knuth No 64 of 1998 (Unreported, Queensland Court of Appeal, 23 June 1998).

[13] [2002] SASC 19; (2002) 81 SASR 22.

[14] Longman v R [1989] HCA 60; (1989) 168 CLR 79.

[15] [1994] HCA 63; (1994) 181 CLR 487.

[16] [1999] VSCA 27; [1999] 2 VR 123.

[17] R v Gallagher [1998] 2 VR 671, 685; R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479; R v Chang [2003] VSCA 149; (2003) 7 VR 236; R v Scott [2003] VSCA 55; (2003) 141 A Crim R 323, [15]; R v Cardamone [2007] VSCA 77, [52] and [54]-[61]; and R v Goss (2007] VSCA 116, [36].

[18] [2008] HCA 16; (2008) 245 ALR 204.

[19] R v McKenzie-McHarg [2008] VSCA 206.

[20] [2008] VSCA 198.

[21] [1995] HCA 7; (1995) 182 CLR 461.

[22] [2008] VSCA 198, [59].