R v DCC [2004] VSCA 230

Court of Appeal (Vic)|2004-12-15|Before: CALLAWAY, EAMES and NETTLE, JJ.A.

The applicant applies for leave to appeal against conviction with respect to verdicts of guilty entered by a jury in the County Court on 4 February 2003. The

applicant was found guilty on seven counts of indecent assault and one count of attempted incest. The applicant was sentenced to a total effective sentence of five years' imprisonment and a non-parole period of three years was fixed. An application for leave to appeal against sentence was abandoned prior to the hearing.

The offences are alleged to have been committed against the three stepchildren of the applicant. The applicant married the mother of those three children on 21 January 1981. The children were ML (born 24 November 1966), KJ (born 20 October 1972) and MK (born 6 November 1973). The applicant was born on 18 June 1938 and at the time of the first offence was aged 43 years and would have been 51 years of age at the time of the eighth and last offence. He is now aged 66.

Count 1 occurred in 1981 when ML was 14 or 15 years of age. She told the jury that the applicant entered her bedroom one evening while she was in bed. She was wearing a nightie and underwear and was half asleep. He knelt beside her bed, put his hand under the covers through her underwear and touched the outside of her vagina. He then left. Count 2 was a representative count relating to conduct of the same kind as occurred on the occasion of count 1 but which conduct occurred on various occasions over a period of months. Count 3 was another count of indecent assault which was said to have occurred at the same time as count 4, a count of attempted incest. ML told the jury that at about 10 p.m. on an evening at some time between 24 November 1981 and 23 November 1984 - when she was aged either 15, 16 or 17 years - the applicant pushed her against an appliance in the laundry, lifted her nightie, pulled down her underpants and then held her shoulders and tried to put his penis into her vagina. Penetration was not achieved.

Count 5 also involved ML and occurred at about 6 p.m. on a day between 24 November 1982 and 23 November 1984. She was in the bathroom doing her hair and putting on makeup. The applicant entered the bathroom, wearing a dressing gown and boxer shorts and commenced shaving. He then rubbed himself against ML, rubbing his penis into her bottom. She asked him to stop, three or four times, and he did so. Count 6 involved the child KJ, who was aged 13 or 14 years. This offence occurred between 20 October 1985 and 19 October 1987. KJ had gone to bed wearing only underpants, and had a sheet over her. She awoke, lying on her stomach, and felt the sheet had been pulled off her and her underpants had been taken down. She felt the applicant's hand around her bottom and vagina and she flicked his hand away and asked him what he was doing. He said that he was shutting the windows. He then left the room.

Count 7 involved the stepdaughter MK, and the events involving her occurred between 6 November 1987 and 5 November 1989 when she was aged 14 or 15 years. She was lying awake in her bedroom, wearing a nightie and had a sheet over her. The applicant entered her room and she pretended to be asleep. She was lying on her back and he pulled the sheet down or else placed his hand underneath it and put his hand on her vagina moving his fingers around but without penetrating her vagina. That lasted a couple of minutes then he removed his hand and left.

Count 8 involves the same conduct towards MK but occurred on the evening following count 7.

The applicant was interviewed by police on 28 April 2000 and made a "no comment" interview.

By notice of application for leave to appeal against conviction dated 4 March 2003 one ground of appeal, only, was stated, namely, "that the appellant is not guilty". On 29 October 2004 application was made to add four grounds of appeal in substitution for the single ground of appeal then existing. Subsequently, one of the four grounds of appeal was abandoned and I will not refer to it further. The fourth of these grounds of appeal was a "wrap up" ground. The first two grounds of appeal which were pursued on the application before us were as follows:

"1. The learned trial judge erred by not directing the jury that they were not to reason that if the applicant engaged in the conduct the subject matter of one count he was the kind of person likely to have committed the offences with which he was charged. 2. The learned trial judge erred by directing the jury on delay and its use of the mutually supportive evidence of the complainants in a way such as to undermine the intended utility and efficacy of the Longman warning given."

Shortly prior to the hearing of the application for leave to appeal the applicant's solicitors gave notice seeking leave to add a further four grounds of appeal, additional to the existing grounds of appeal as had been substituted on 29 October 2004 by order of the Registrar.

"5. The trial miscarried as a consequence of: (a) the prosecutor, in his address, having asked the jury: (i) If [the complainants] were going to fabricate, or concoct, why not in relation to each count make the allegation more serious ...? (ii) Why not say more often ... why not a few more? (iii) Why not say it occurred when they lived at Frankston? (iv) Why say it occurred in the bedroom? Why not .. in an isolated spot ... so there is no concern about someone being there?; and (b) the judge having failed adequately or at all to direct the jury that, even if they were satisfied that there had not been collusion and fabrication for the reasons alleged by the applicant it did not follow that the complainants were telling the truth. 6. The learned trial judge erred by failing adequately to direct the jury on its use of the eleven indicia of similarity alleged and relied upon by the Crown. 7. The learned trial judge erred in law by directing the jury in accordance with s.37(1) of the Crimes Act 1958 in circumstances where, and against the mandate in s.37(2), the direction was not relevant to the facts in issue in the proceeding. 8. The learned trial judge erred by failing properly or at all to direct the jury on its use of the absence of complaint evidence."

Existing ground 4 was renumbered before us to be ground 9, and reads, "the trial miscarried as a consequence of some or all of the errors alleged in grounds 1 to 8". As stated earlier, ground 3 was abandoned.

The Court advised counsel that it would hear argument on all of the grounds but would defer a decision whether to grant leave to add the new grounds. I note that as to none of the grounds or proposed grounds was the matter which is now the subject of complaint raised by way of exception to the judges' charge. Failure to take exception to the charge can not determine the question whether the Court ought allow an application to add a ground of appeal so as to allow a new point to be argued, nor would failure to take exception preclude a finding that the verdict constituted a substantial miscarriage of justice; the Court has an over-riding duty to intervene where fairness dictates that it do so do[20]. However, failure of trial counsel to take exception to the charge is a relevant matter for the Court to take into account when considering an application to add a new ground or an assertion that a miscarriage of justice occurred. The failure to take exception would almost necessarily be taken into account by the Court as an indicator that in the atmosphere of the trial counsel did not then perceive there to be any injustice or error in the course taken by the trial judge[21].

Ground 1 and proposed ground 6: Directions as to propensity and similar facts.

Where similar fact evidence is led on a presentment which involves multiple complainants and multiple counts of sexual offences the risk is at its highest of a jury misusing the evidence and indulging in reasoning which is of a prohibited propensity character, rather than confining itself to permitted reasoning which bears upon the probabilities and improbabilities of the accounts of the complainants being truthful[22]. Impermissible propensity reasoning is that which simply jumps from the proposition that if the accused has committed one offence he is the kind of person who would be likely to have committed some or all of the other offences with which he is charged, and to use that reasoning in proof of guilt of any other offence.

The prosecutor in this case was entitled to identify points of similarity or a pattern of conduct, or a system, which emerged from the evidence of the several complainants and to argue thence towards proof of guilt by highlighting the improbability that each of the complainants would tell similar lies[23]. Where the Crown is relying on evidence in this manner the trial judge must appropriately direct the jury as to the use to which the evidence may and may not be put[24]. As in all trials, what directions are appropriate, and the language in which the directions ought be given, are matters to be determined having regard to the circumstances of the case at hand and the issues which are in dispute[25]. The fundamental principle is that the trial judge must give the jury proper and sufficient instructions to enable them to decide the real issues in the case.[26]

Significant features of the present trial were that there were multiple complainants and counts, there was evidence before the jury of uncharged sexual acts by the applicant, and the Crown relied on the evidence of each of the complainants as similar fact evidence disclosing an underlying unity in their accounts. Those features required that her Honour give the jury a series of directions, of which the following are of particular relevance to this ground of appeal: that each count must be the subject of separate consideration of the evidence relevant to it; that proof of guilt of one offence does not go to proof of any other count; that the evidence of uncharged acts and the evidence concerning other counts on the presentment must not be misused by the jury, by way of impermissible propensity reasoning, towards proof of guilt of any of the offences with which he was charged[27].

A propensity direction warns the jury not to reason that, if the accused person engaged in the uncharged acts, or is found by the jury to have committed one or more of the other offences with which he is charged, he is the kind of person who is likely to have committed the offence which is the subject of the count under consideration[28]. The Court of Appeal has held that in this State the preferred language for judges to use when giving a propensity direction should employ the language such as I used in the previous sentence and, in particular, should use the expression "the kind of person", when warning about the misuse of evidence. It has been held that a propensity direction is particularly important where the evidence might tend to suggest that the accused had a paedophilic propensity: see R. v. T[29]. In that case, Southwell A.J.A., with whom Callaway, J.A. and Smith A.J.A. agreed, held that the jury had to be warned not only that evidence concerning one count was not to be used in proof of another count but also that they must not misuse the evidence of other counts "as tending to prove an inclination towards the relevant criminal conduct". His Honour held that the appropriate direction was one in terms approved by the Court in R. v. Vonarx[30], which, when dealing with the evidence of uncharged acts, directed the jury not to reason that that evidence "showed the accused to be the kind of man likely to commit the offences alleged".

As I shall discuss, it remains the case that notwithstanding the fact that this Court has approved the "kind of person who is likely" language for a propensity direction, other language might nonetheless be deemed adequate in the circumstances of a particular case. Not surprisingly, however, Mr Kassimatis placed emphasis on what he said was the employment of the approved language at one point in the judge's charge and her departure from that language at other points. The Crown contends that in each instance a propensity direction was being given, but Mr Kassimatis disputes that contention.

Mr Kassimatis agrees that the judge gave an appropriate direction to the jury against propensity reasoning - using the preferred language warning against reasoning that he was "the kind of person" - when directing the jury as to the use that could be made of the evidence concerning uncharged acts. He submitted, however, that her Honour failed to give a propensity direction, either at all or in adequate terms, when considering the use which the jury might make of evidence led as to each other count when considering his guilt on a particular count.

Mr Kassimatis submitted that by confining the warning about the dangers of propensity reasoning to the use the jury might make of the evidence of uncharged acts - as he contends the judge did so confine the direction - then the jury may have concluded that it was permissible for them to apply a finding of guilt on one charged offence towards proof of another offence, on the basis that if the accused was guilty of one offence as charged then he was the kind of person likely to have committed one or more of the other offences charged.

Mrs Quin, for the respondent, contended that although slightly different language had been used by the judge in giving her direction concerning charged and uncharged acts, in both instances a propensity direction was given which was adequate in the circumstances to ensure a fair trial.

I turn, then, to the challenged "propensity" directions.

The sequence of the judge's directions at the time when she addressed the use to be made of the evidence of charged and uncharged acts is of some importance. Over some twenty three pages of transcript, in the one session of her charge, the learned judge gave directions as to separate consideration of the counts, the use of evidence of uncharged acts, the disadvantages to the accused caused by delay in making complaint, the significance of a failure to make early complaint, and the use of what she called mutually supportive evidence, another term for similar fact evidence.

When considering discrete grounds of appeal it is easy to overlook the fact that the jury heard the directions as a continuous and linked whole. A charge ought not be read as though it were a legal document. The ultimate test of its sufficiency must always be, as Bray, C.J., Zelling and Wells, JJ. observed in R. v. Yates "the final impression left with the jury by the spoken word, bearing in mind the course of the trial, the addresses of counsel, and the circumstances generally."[31] A repeated theme throughout the instructions in this case was the warning by the judge that the jury must be careful to consider each count separately, and the evidence relating to it. It was, in fact, a very favourable charge from the point of view of the applicant, one constantly emphasising the dangers inherent in such a case and the need for caution by the jury.

Before setting out the precise directions with which the ground of appeal is concerned I will place that direction in context among directions on related topics in the charge. The judge first gave a separate consideration direction[32], and told the jury it would be quite wrong to apply a conclusion of guilt on the first count towards proof of guilt on any other counts. Her Honour continued[33]:

"You must consider each count separately, look at the evidence that relates to that count and, in relation to that evidence and what you accept of it, you come to your particular verdict and then move to the next count. You must deal with each count separately as separate charges and give each count a separate consideration. Similarly you must not use evidence in the one count as evidence in another count except for specific matters which I will direct you upon shortly. You cannot say, for instance, as I have just said, that if he is guilty of one count or not guilty of [one] count then he must be guilty or not guilty of the other count. In this case, this is particularly important as you have heard evidence of three stepdaughters of the accused that span incidents over a number of years and you have to take care not to allow your decision on a particular count to be influenced by a general view that, if he has been found guilty or not guilty of one, it follows that he is guilty or not guilty on the remaining count. I will repeat myself. Each count must be considered separately in the light of the evidence which applies to it and you must ask yourself as to each count separately, `Am I satisfied beyond reasonable doubt by the evidence that the accused man is guilty of this particular crime?' If that question is answered in your judgment yes, you should find him guilty. If it is answered no, you should find him not guilty. Now I will move to another area which is evidence of sexual behaviour by the accused towards his stepdaughters apart from the specific allegation in each of the eight counts in the presentment."[34]

The words italicised in the above passage, would not, in my opinion, have been understood by the jury to have been of relevance to the case only in a limited way. The language was quite capable of being understood as warning against propensity reasoning, although it did not use language warning against reasoning towards guilt on other counts on the basis that if he was guilty of one count then he was "the kind of person" who would commit another count. The warning not to be influenced "by a general view" that guilt of one count leads to guilt of other counts would embrace propensity reasoning, in my opinion.

As anticipated in the last paragraph, above, her Honour then addressed the question of the use to be made and not made of uncharged acts. Her Honour first set out the evidence concerning uncharged acts, and directed that such evidence could not be used to prove the offences on which the applicant stood trial. The judge then said[35]:

"The commission of the offence which is the subject of each count on the presentment can only be proved by evidence which relates to each of those alleged offences and not by this evidence of sexual behaviour which is not the subject matter of a count. Further, even if you accept in whole or part the evidence of such sexual behaviour which is not the subject of a count, you must not reason that because the accused engaged in such sexual behaviour with each complainant on other occasions, he was the kind of person who was likely to have done so on the specific occasion you are considering when going through each count. You must consider each charge or count against the accused in the light of the evidence in respect of that count which you are considering and I shall identify for you the evidence upon which the Crown relies in respect of each count."[36]

Mr Kassimatis submitted that by the employment of the italicised words the judge ensured that an appropriate propensity direction was given as to the use and non-use of evidence of uncharged acts. However, by that direction, he submitted, the jury might have understood that it was only when they were considering the use of evidence of uncharged acts that they could not employ reasoning that by virtue of some other behaviour he was "the kind of person" likely to have committed one or more of the charged offences. The jury might, therefore, have employed the prohibited propensity reasoning by reference to the evidence on some or all other counts when deciding, in turn, each count on the presentment.

As earlier discussed, the words italicised in the extract at [40], above, dealing with the evidence of uncharged acts constituted language which has been held to be appropriate in Victoria for a propensity direction.[37] Mr Kassimatis submitted that , in contrast, the terms of the earlier direction, set out at [38], as to the use to be made of the evidence of other charged acts was deficient as a propensity direction, because it failed to use similar language. I will return to that issue, but first, let me set out the next direction which is relevant to these grounds of appeal, and specifically to ground 6.

Immediately following the instructions discussed above, her Honour dealt with the question of delay[38]. I will address that more fully when considering the ground complaining about the Longman[39] direction. Her Honour then addressed the use that could be made, and not made, of the absence of timely complaint[40]. The judge next addressed the question of corroborative evidence, and finally, for present purposes, her Honour came to the point where she gave directions as to mutually supportive evidence, that is, similar fact evidence, and the assistance that could be gleaned from that evidence as bearing on the probability of the occurrence of any of the offences [41].

Her Honour told the jury that the Crown sought to use that evidence as supporting the reliability of the evidence of each complainant. The prosecutor contended that the three complainants made similar allegations of events occurring in similar circumstances and that the probability of them each telling similar lies was so low as to lead to a conclusion that it was improbable that their accounts were false. The Crown identified eleven items of similarity in the accounts given by the three stepdaughters, and after listing those eleven items her Honour told the jury that they were entitled to have regard to the evidence of each of the three complainants:

" . . . as showing that it is improbable that the individual complainants have made up or fabricated the incidents they alleged occurred independently of the others. You can ask yourself the question, what is the probability of each of the witnesses giving these accounts that they do of the accused's conduct unless they in fact occurred when you are considering the evidence in relation to each of the counts on the presentment. In other words, you can use this evidence to strengthen the improbability of each telling lies when assessing their evidence individually. What you cannot say members of the jury, is, if I am satisfied that he is guilty regarding one complainant, then it follows he is guilty regarding all the others because they are each telling similar accounts. You can't do that. You must assess each of the individual counts and this aspect of the evidence is only one matter to take into account when assessing the evidence that relates to specific counts."[42]

Once again, Mr Kassimatis contends that while a propensity direction was necessary with respect to the use of similar fact evidence, the terms of the above direction were incapable of constituting such a direction, or were, at least, inadequate for the task, by failing to warn the jury against employing propensity reasoning of the "kind of person" character.

As to the similar fact evidence, her Honour then told the jury that the defence was that there had been collusion between the witnesses. She correctly directed the jury that before they could rely on mutually supportive evidence of the three complainants as bearing on the probabilities of the events they described having, in fact, occurred and of the implausibility that the three would have invented similar allegations, they must first be satisfied beyond reasonable doubt that there was no collusion between the three complainants. If they were satisfied to that degree that there was no collusion then, her Honour said, the jury was entitled to use the reasoning process based on the similarity of the accounts.

Her Honour then gave further directions about the danger of convicting on uncorroborated evidence.[43]

Mr Kassimatis submitted that the last direction set out above, at [44], did not contain a propensity direction, at all, but merely directed the jury about probability reasoning, without alerting them to the danger of reasoning from proof of one count that he was the kind of person likely to have committed one or more of the other offences charged.

The argument advanced by Mr Kassimatis concerning the directions about which complaint is made is very similar to that advanced by counsel in R. v. D[44], another case of multiple daughter complainants where it was said that the judge confined his directions about propensity to the use of evidence concerning uncharged acts, and, thus, may have led the jury to believe that it did not apply to use of the evidence of other charged acts. Chernov, J.A., with whose reasons Phillips, C.J. agreed (Tadgell, J.A. also agreeing, but adding additional reasons) held that the evidence of each complainant was properly admitted as demonstrating an underlying unity in their accounts[45]. The Crown particularly relied on the evidence as demonstrating that there was an unnatural relationship between the applicant and the victims, thereby rendering more probable the account of each complainant. The judge directed the jury in that case that while each count had to be decided on its own evidence they were entitled to consider the evidence of all daughters in deciding whether any of them was telling the truth. Chernov, J.A. acknowledged that language deprecating reasoning that the applicant was "the sort of man" who would commit the offences had only been stated when referring to uncharged acts. He said, however, that the charge had to be taken as a whole and said that when that approach was adopted, then the charge:

" . . . shows that no distinction was drawn by his Honour between charged acts and uncharged acts for the purpose of the operation of the propensity warning. Although given in the context of uncharged acts, its terms draw no distinction between the uncharged and charged acts of the applicant. Furthermore, when referring to the jury's entitlement to consider the evidence of all the daughters as to how the applicant dealt with them sexually, his Honour also drew no distinction between the charged and uncharged conduct of the applicant".[46] [My emphasis]

Tadgell, J.A. agreed with Chernov, J.A. and said that while the express mention of the need to avoid propensity reasoning in the context of uncharged acts might, as a matter of logic, imply that it was acceptable when considering charged acts, the direction given was not expressed to be confined to uncharged acts[47]. Tadgell, J.A. said that the judge had been obliged to deal separately with uncharged acts in order to direct the jury that the offences could not be proved by evidence of uncharged acts, but the terms of the propensity direction did not seek to draw a distinction between charged and uncharged acts. Later, in that case, the judge directed the jury that although each count had to be decided upon its own evidence, and had to be considered and proved separately, the jury were entitled to consider the evidence of all of the daughters in assessing whether they were telling the truth. Tadgell, J.A. held that in that passage the judge referred to evidence of both charged and uncharged acts and that the jury would have understood it to be so, and he held that he was not satisfied that the jury were likely to have been misled so as to have been in danger of misusing evidence of charged acts[48].

In his reasons Chernov, J.A. said that the judge could have been more specific about the matter in issue but concluded that he was not satisfied that the jury would have interpreted the propensity warning as being limited in the way counsel contended it had been[49]. Chernov, J.A. regarded it as significant that defence counsel did not perceive that the charge had confined the propensity direction to uncharged acts. The same observation may be made about the present case, because no objection was taken to the terms of the charge, in this respect.

In my opinion, when the charge in the present case is read as a whole it is even more clearly the case than it was in R. v. D that the jury would not have been in danger of confining the application of the propensity direction to evidence of uncharged acts. The jury would not have understood the judge to have drawn a distinction between the evidence of charged and uncharged acts when urging them not to employ propensity reasoning, and they would have understood the similar fact evidence to have also been the subject of that direction.

That conclusion would be sufficient to dispose of this ground of appeal. There is, however, an alternative basis for rejecting the complaint.

Mrs Quin submitted that although the judge had not employed the same language in giving the propensity direction with respect to charged acts and similar fact evidence as she had used when considering the use to be made of evidence of uncharged acts, the language given by the judge in each instance was adequate to constitute a propensity direction, one appropriate in each instance to the circumstances of this case. This brings me back to the issue that I earlier addressed.

Mr Kassimatis accepted that, although this Court has held it to be preferable, it was not obligatory for a propensity direction to employ a phrase such as "the kind of person", in warning about impermissible reasoning. He submitted, however, that it was only when such language was used that the court could be confident that an adequate warning had been given.

In R. v. J (No.2)[50] and in R. v. Glennon (No. 2)[51] Callaway J.A. concluded that a direction which did not employ such words was adequate in the circumstances of each case to warn against propensity reasoning. In both cases the language which was used was very similar to that used by the judge in the present case in the directions other than those relating to uncharged acts, and was similar to that generally employed by judges in New South Wales when giving propensity directions. A comparison between propensity directions in New South Wales and Victoria has been made in a number of decisions of this Court, with the judgment of Hunt, C.J. at C.L. in R. v. Beserick[52] and the language then approved by his Honour, being highlighted.

The expression approved by Hunt, C.J. at C.L. to warn about propensity reasoning was that the jury not reason "that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged".

In R. v. Macfie[53] Callaway, J.A. analysed the cases which discussed the difference in the language approved by the respective appeal courts in the two States concerning propensity directions. His Honour concluded that a direction given using the language approved by Hunt, C.J.. at C.L. would ordinarily be sufficient warning, although the language approved in the Victorian cases, as earlier discussed, was clearer and more accurate.

What may be adequate language to convey a propensity warning must be judged in the context of each case, and as to that opinions may differ when the approved language (of "the kind of person" character) is not adopted by the trial judge. In his judgment in Macfie, Buchanan, J.A., concluded that because the jury might well have thought that the accused was a paedophile if he had committed one of the offences it was incumbent for the judge to have given a propensity direction, and his Honour described the appropriate direction as being one employing language warning against reasoning that he was "the kind of person", who had a propensity to commit offences of the kind charged[54]. The third member of the Court in Macfie, Vincent, J.A., endorsed the statements of Callaway, J.A. as to the adequacy of Beserick language for that case. Although Buchanan, J.A. seems to have required the Victorian formula of words to be used in that case I do not take him to have been holding that language of the Beserick kind might never be adequate for a propensity direction, given the decision of the Court in the earlier decision of Glennon (No.2)[55].

In the present case I have had the advantage of reading in draft the reasons of Callaway, J.A., who concludes that the language used in this case by the judge was adequate to address propensity reasoning. I agree with his Honour, but I also agree with his opinion that it would nonetheless have been better had the judge given the direction in the preferred language which this Court had approved in cases such as Grech, Best and Papamitrou.[56]

Her Honour delivered a Longman direction[57] warning the jury that it was dangerous to convict on the evidence of a complainant alone, where there had been long delay in making complaint. When discussing the effect of delay her Honour discussed the potential for innocent misunderstanding and honest but erroneous recollection and the impact of imagination, emotion, prejudice or suggestion on accurate recall many years later. Her Honour directed the jury as to confirmatory evidence and said that it was not necessary, as a matter of law, for there to be confirmatory or supportive evidence, adding, "But you the jury may consider the potential for error to be greater in the absence of any supporting or confirmatory evidence when that is coupled with delay and the absence of fresh complaint."[58] Having discussed delay and the absence of early complaint her Honour then continued:

"If you did not accept that there was any supporting or confirmatory evidence from the mutual support of the complainants, in this case there is no other evidence which is capable of amounting to confirmation or support of the particular complainant's evidence that you are considering. In those circumstances you must be fully aware of the danger of convicting on the evidence of each complainant alone whose case you are considering, unless having scrutinised that evidence with great care you are satisfied of its truth and accuracy."[59] [My emphasis].

Mr Kassimatis submitted that this is the first instance of several where her Honour, by using words such as those highlighted by me in the above passage, made the direction as to the effect of delay contingent on the jury not finding that there was confirmatory evidence. In other words, he submitted, if the jurors found that there was confirmatory evidence then they might have understood that they did not then have to concern themselves about the factor of delay and its effect upon the reliability of recollection and upon the capacity of the applicant to defend the charges.

Upon concluding the direction as to delay the foreman asked the judge if she could repeat the direction, and she did so[60]. Her Honour said that the potential for error in the evidence of witnesses was "greater" in the absence of any supporting or confirmatory evidence. Immediately after concluding those directions the jury were discharged for the day, with the charge not completed. The prosecutor, in the absence of the jury, queried whether the judge had given the correct direction, which he said was that if they found that there was confirmatory or supportive evidence then the warning about it being dangerous to convict did not apply. The judge said that that was the direction she had given, and had intended to give, and defence counsel agreed that her Honour's direction was correct.

On the day after giving the above direction the jury commenced the day by asking a question "Could you please re-read the directions regarding the delay in a complainant making an accusation". Her Honour then gave a further direction as to delay[61] and also repeated her directions as to the relevance of a lack of timely complaint and as to corroborative or supportive evidence. Her Honour finished her re-directions with this passage[62]:

"Ladies and gentlemen, yesterday afternoon I gave you directions that there is evidence capable of amounting to confirmative or supportive evidence of each complainant and that is your role to determine whether you accept this evidence as being confirmative, or supportive evidence, and that is a matter for you. It is in your province, and I remind you that in dealing with each count in the absence of such confirmative or supportive evidence of the complainant, there is a potential for error for the reasons that I set out yesterday in detail, given the fact that there is a delay, a lack of complaint, the ages of the complainants and there is one witness in relation to each offence." [My emphasis and underlining].

Given the comments of the judge to counsel on the first day of her charge, after she had delivered the Longman direction, there is force in the contention of Mr Kassimatis that the Longman direction had been made conditional on the absence of supportive evidence. That was indeed what the judge said she intended to convey, and defence counsel and the prosecutor both said she was right to do so, and authority confirms that, generally, a full Longman direction is not obligatory where there was supporting evidence[63]. I accept that this was a case where the circumstances necessitated not only that a direction concerning the dangers and difficulties which delay caused to the defence be given to the jury with the force of the judge's office and on the basis of judicial experience, but that the jury understand that the warning applied even if they were to find that there was confirmatory evidence for the complainant's account. It is my view, however, that, notwithstanding the judge's expressed intention to make her direction conditional on the absence of confirmatory evidence, the terms in which she first gave, and then repeated, her Longman directions would not have been understood by the jury to have been conditional in that way.

At no time did her Honour remove from the jury her warning about the dangers caused by the factor of delay in this case. On the first day of her charge, when discussing the dangers caused by delay, the judge had highlighted the age of the complainants, the absence of complaint, and the fact that the case was word against word. In my view, when the judge in her final statement to the jury, on the second day of her charge, made reference in the underlined passage in the above extract, to "the reasons I set out yesterday", it was those factors in her earlier Longman direction to which she was making reference. But the same sort of factors had been even more recently brought to the jury's attention because the judge had given another Longman direction on the second day also, in response to the jury's question. On that occasion, too, the judge identified all of the factors of unreliability which long delay created in the trial, including the possibility of faulty memory, of misunderstanding, and of people innocently convincing themselves that something happened which did not. In addition she had detailed the problems caused for the applicant in meeting a case after so many years[64]. Her Honour then gave a direction concerning complaint evidence, followed by a direction as to confirmatory evidence and the danger of the absence of confirmatory evidence.

Having re-read her Honour's instructions several times, it seems very clear to me that in her thorough and careful directions, in particular those given on the second day just before she delivered the words set out in the above passage of her final words to the jury, the judge always maintained that the dangers of delay which she fully discussed were ever-present. I do not believe that the jury would have had the slightest doubt about that. When, finally, she delivered the last passage of her re-direction, highlighted above, and emphasised on the appeal, there was no danger at all, in my opinion, that the jury would have understood that if they found there was confirmatory evidence, the dangers caused by delay would cease to exist. The constant return to the question of delay by the jury suggests strongly that the jury were acutely conscious of the importance of delay in this case, and the judge's reiteration of the dangers of error in such circumstances were never downgraded by her.

Under this ground Mr Kassimatis linked two matters. He submitted that the questions posed to the jury by the prosecutor in his final address (as set out above at [24]) were akin to asking the jury "why would they lie", an objectionable proposition which can constitute an invitation to reverse the onus of proof. Those comments by the prosecutor, Mr Kassimatis submitted, should have caused her Honour to direct the jury that there was no onus on the accused to provide an answer to the prosecutor's questions consistent with innocence. Furthermore, even if the jury could discern no motive for the complainants lying (or, considered that the applicant had provided no answer, or adequate answer, to the questions posed by the prosecutor) it did not follow that the complainants were telling the truth, counsel submitted: see Palmer v. The Queen[65]. The jury should have been so directed, he submitted.

This trial was fought on the basis that the accounts of the complainants were not a product of mistake or false recollection, but of deliberate concoction and collusion. Mr Kassimatis agreed that the judge gave a correct direction as to the need for the jury to be satisfied beyond reasonable doubt that the similar fact evidence was not a product of collusion and concoction before they could rely on it as tending to prove the truth of the allegations being made by the complainants.

Although Mr Kassimatis initially complained that the jury should have also been warned that before it could be acted upon they also had to be satisfied beyond reasonable doubt that the evidence was not a product of innocent infection, or honest error in recollection, he ultimately disavowed that argument, conceding that innocent infection or honest error had never been issues in the trial. He submitted, however, that the judge was in error in failing to warn the jury that they had to also exclude the reasonable possibility that the evidence of each complainant constituted an individual lying account, that is, whilst not being the product of collusion, in each case the evidence was a concoction.

I deal with the first complaint under this ground.

Although Mr Kassimatis contended that the remarks of the prosecutor in his address were akin to asking "why would they lie" I do not consider that to be so. The propositions advanced by the prosecutor were no more than part of an argument employed by him to counter the contention that the complainants had, in fact, colluded in making false accounts. The comments did not encourage a reversal of the onus of proof, but, rather, invited rejection of the defence hypothesis that the applicant was the victim of collusion between the step daughters and of lies concocted by them. Far from reversing the onus of proof, the questions merely invited the jury to be satisfied that the accounts of the witnesses bore the hallmarks of truth, rather than collusion and concoction. Had the prosecutor been making an argument in his address concerned with the absence of any motive for the complainants to lie then there may well have been a basis for the further complaint made by Mr Kassimatis that the jury should have been directed that even if they rejected the motives suggested by the applicant that did not mean that the complainants were necessarily telling the truth[66]. The prosecutor, as I have said, was not, however, addressing the question of the complainant's motive to lie, but the improbability of them having colluded.

The obligation to give a direction as to collusion and concoction (or innocent infection) only arises if there is evidence to suggest that there is possibility that the similar fact evidence may be explained by those factors[67]. The suggested explanation must have been raised as an issue for it to be mandatory that the jury be directed to exclude that explanation before they could apply the similar fact evidence[68]. In this case there was no suggestion that the evidence was inspired by anything other than both deliberate falsification and collusion. No exception was taken to the warning concerning the similar fact evidence being limited to collusion and concoction, nor was the case conducted on the basis that similar lying accounts might have been arrived at by each complainant, as a matter of mere co-incidence. Although that possibility is now said to have been one about which the jury should have been directed it would have been a hopelessly artificial hypothesis to have advanced before the jury, given the similarity of the complainants' accounts. The issue of coincidental lies was never raised in the trial. The obligation to charge the jury about the pre-conditions to use the similar fact evidence only arose with respect to issues raised in the trial[69], and in this trial the only issue was collusion and concoction in the accounts of the complainants.

Mr Kassimatis submitted that even though the issue of coincidental lies was not raised by the defence in the trial that must have been an issue, because the jury or some of its members might well have rejected the suggestion that the witnesses had colluded in advancing concocted accounts, but nonetheless have considered that they may have independently and coincidentally invented false accounts.

In my view, given the way the case was conducted it was not likely that the jury might have reasoned in that way. The failure to seek a direction as to individual, but unconnected, lying accounts undoubtedly reflected the tactical assessment of defence counsel that it would be harmful to the defence case for the jury to receive such a direction, since the entire case was predicated on the complainants all being liars, each with motives to lie, and acting together.

I note, in passing, that although innocent infection was not an issue in this case her Honour, nonetheless, when she gave her strong, and repeated, directions about delay, warned the jury about the danger of honest but erroneous recollection and of mistaken assimilation of the accounts made by other complainants. It was not necessary to introduce those possibilities, again, when dealing with the similar fact evidence, in my opinion and, as I have said, ultimately, no complaint was made about any such omission.

This ground could not succeed, and I would not grant leave to add it to the grounds of appeal.

Proposed ground 7: Consent - s.37 Crimes Act 1958

Counts 3 and 5 alleged offences of indecent assault which had occurred at the same time and place against the same complainant. The offences were alleged to have been committed in the bathroom and to have occurred on an occasion which fell within a two year period. It was possible, therefore, that the complainant was aged sixteen years or older when those offences occurred.

The applicant denied that any indecent touching occurred, at all, on an occasion in the bathroom, but the complainant's mother gave evidence that she had seen touching or kissing taking place between the applicant and her daughter of a kind consistent with the conduct relied on by the prosecution, but her evidence suggested that it was her opinion that her daughter had been consenting. The mother said that after making the observations of their conduct which she described she had warned them both that they should pack their bags and go if they were behaving indecently.

One element of the offence of indecent assault with which the applicant was charged on these counts was lack of consent, if the victim was over 16 years. Before commencing her charge the judge discussed with counsel whether she should direct the jury as to consent, by reference to s.37(1), which among other matters directs that absence of protest or resistance is not to be regarded in itself as evidence of consent. The judge considered s.37(2), which states that a judge "must not" give such directions "if the direction is not relevant to the facts in issue in the proceeding". Defence counsel submitted that the direction had to be given.

Later, at a time when the charge was not concluded by the judge, the prosecutor noted that such a consent direction had not been given and asked that it be given, since it was open to the jury to conclude that the complainant had been over sixteen and may have consented. Defence counsel did not disagree, and the judge gave a short direction. Soon after, the jury asked for further direction as to consent. The judge discussed the matter again with both counsel, and defence counsel then said that while the defence denied that any touching had occurred at all a direction had to be given, because consent might arise as an issue in the jury room, given the evidence of the mother of the complainant. Counsel said that consent "may be in issue" but "it was not part of the defence case". Thereupon, the judge gave a more substantial direction on consent.

Plainly, defence counsel wanted to take advantage of the jury having a reasonable doubt about consent but without diminishing the defence case, which was that the allegations were inventions. In my opinion, the short answer to the contention under this ground is that the evidence of the mother made it an issue in the trial and it was therefore relevant for the consent direction to be given, as was the position taken by defence counsel at trial. This proposed ground could not succeed, and leave to add the ground ought be refused.

Proposed ground 8: Direction as to failure to complain

The complaints under this ground amounted, in the final analysis, to an assertion that her Honour ought to have told the jury that the complainants' failure to make timely complaints was an important matter to take into account when assessing the credibility of the complainants, not merely that it might be. Additionally, it was said that her Honour failed to give sufficient emphasis to the direction by saying that as a matter of law failure to complain could affect the credit and reliability of the complainants' evidence. Mr Kassimatis submitted that the need for greater emphasis in the directions flowed from the fact that this was an "oath against oath" trial arising many years after the alleged events.

Mr Kassimatis referred to R. v. WEB[70], an instance where Charles, J.A. held that a direction on this topic lacked appropriate emphasis. However, that was a case where the judge had said almost nothing at all about the potential effect of the absence of complaint on the credibility of the account of the complainants. The judge in that case had merely said that failure to make complaint was of "some importance", because the prosecution relied solely on the evidence of the complainants. As Charles, J.A. there held, to be adequate the direction required that the jury be informed that failure to complain, or delay in complaining, may cast doubt on the reliability of the evidence. In the case before us, however, the direction did not suffer the deficiencies of the brief direction given in WEB. Not only did the judge give lengthy directions on this topic, she did so more than once, and also fully set out the competing arguments of counsel. The directions were, in fact, too favourable to the applicant because her Honour gave a direction that the failure to complain "does not necessarily indicate that the allegations are false"[71].

The directions given were said to have understated the importance of the matter by saying that it was entirely a matter for the jury to weigh the importance of this issue and that they could use it only "to test credibility" of the complainants. When she repeated the directions her Honour again said that it was "my duty to warn you" that failure to complain "does not necessarily" indicate the falsity of the allegations. In my opinion, the jury were left in no doubt that the defence case was that the failure to complain was inconsistent with the truth of the allegations and that they were at liberty to reason in that way, if they thought fit[72].

In the context of the entire charge I consider that the directions given were more than adequate in the circumstances.

I would reject the application to add this ground.

This ground asserts that the aggregate effect of errors on the individual grounds constitutes a miscarriage of justice even if individually they did not[73]. Given that I have found no error in the directions of the learned trial judge it follows that this ground can not be made out.

I would grant leave to amend the grounds of appeal by adding the proposed ground 6, but would refuse leave to add the other grounds which were sought.

The application for leave to appeal against conviction should be dismissed.

I agree with Eames, J.A., for the reasons which his Honour gives, that the appeal should be dismissed.

[6] [1998] 3 V.R. 602 at 614 and 638-643.

[7] See R. v. TJB [1998] 4 V.R. 621 and R. v. KRA [1999] VSCA 157; [1999] 2 V.R. 708.

[12] It would often be necessary to warn the jury, in addition, that they must be satisfied beyond reasonable doubt that there was no innocent infection, but, as Eames, J.A. explains, innocent infection was not an issue at this trial.

[18] See R. v. Macfie [2002] VSCA 51 at [3]- [7].

[20] See R v. Wright [1999] VSCA 145; [1999] 3 V.R. 355, at 360-361 [16]-[22], per Callaway, J.A..

[21] See R v. Wright, at 356 [2], per Phillips, C.J. and Charles, J.A.; R. v. T (No.2) [1998] 3 V.R. 602, at 638.

[22] See R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412, at 418 [25]; R. v. Best [1998] 4 V.R. 603, at 616..

[23] Hoch v. The Queen [1988] HCA 50; (1988) 165 C.L.R. 292, at 295, per Mason, C.J., Wilson and Gaudron, JJ.

[24] R. v. Best [1998] 4 V.R. 603, at 615-616. The principles governing the directions to be given in such cases are discussed in many decisions of this Court, see R. v. Grech [1997] 2 V.R. 609, at 614; R. v. J (No.2), supra, at 640-643; R. v. Papamitrou [2004] VSCA 12, at [40]-[41]; R. v. Rajakaruna [2004] VSCA 114, at [129].

[25] As Callaway, J.A. observed in R. v. Macfie [2002] VSCA 51, at [6], when discussing propensity directions, "there is no magic formula" as to the language that must be employed. See, too, Carr v. The Queen [1988] HCA 47; (1988) 165 C.L.R. 314, at 319, per Wilson and Dawson, JJ., as to the desirability that the trial judge, so far as possible, have the freedom to tailor the charge to meet the exigencies of the case.

[26] Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437, at 466; Jenkins v. The Queen [2004] HCA 57, at [28].

[27] R. v. Best, at 614- 616; R. v. Papamitrou [2004] VSCA 12, at [40]-[41], per Winneke, P.

[28] R v. T.J.B. [1998] 4 V.R. 621, at 633.

[29] R. v. T (1996) 86 A.Crim.R 293, at 299-300.

[30] [1999] 3 V.R. 618, at 624-625 [20]-[22], Winneke, P., Callaway, J.A. and Southwell, A.J.A.

[31] R. v. Yates (1970) SASR 302, at 306, cited by Callaway, J.A. in R v. J (No. 2), at 638.

[37] See R. v. Macfie [2002] VSCA 51 at [6-7] per Callaway, J.A.

[39] Longman v. The Queen (1989) 168 C.L.R.79.

[44] [1999] VSCA 148, Phillips, C.J., Tadgell and Chernov, JJ.A.

[50] [1998] 3 V.R. 602, at 641 per Callaway, J.A., at 614, Winneke P. and Charles. J.A. agreeing. The terms of the direction in that case appear at 639.

[51] [2001] VSCA 17; (2001) 7 V.R. 631, at 678 [120], Winneke, P. and Ormiston, J.A. agreeing, at 662 [73].

[55] Glennon (No.2), at 645 [28], 679 [120].

[61] T621-625. In the course of this direction, and also in other places in her charge, her Honour sometimes used the word "comment" when she ought to have used the word "direction" or "warning", but no point was taken by counsel concerning these slips, and appropriately so, because in the context of the trial the jury could not have been misled by the inappropriate language employed by her Honour in these instances.

[63] See R. v. Glennon, at 652 [48] per Winneke, P. and Ormiston, J.A.

[66] Counsel referred to R v Uhrig, unreported, Court of Criminal Appeal New South Wales, 24 October 1996; see too R v PLK [1999] VSCA 194; [1999] 3 V.R. 567; R v Jovanovic (1997) 42 NSWLR 520.

[67] See R. v. Glennon, at 662 [73] per Winneke, P. and Ormiston, J.A.

[68] Glennon, at [117], per Callaway, J.A.

[69] See Best, at 616, "key point" No.4.

[70] [2003] VSCA 205; (2003) 7 V.R. 200, at 209 [26]-[28], per Charles, J.A.

[71] Contrast the language of s.61 of the Crimes Act 1958 as amended in 1997

[72] See R v Matthews [1998] VSCA 2; [1999] 1 V.R. 534, at 539 [12].

"[I]n Makin v. Attorney-General (N.S.W.) [1894] A.C. 57 at 65, Lord Herschell, L.C. spoke of the accused being `a person likely from his criminal conduct or character to have committed the offence for which he is being tried'. See also Markby v. R. [1978] HCA 29; (1978) 140 C.L.R. 108 at 116. The second group of words that I have underlined in the passage from R. v. Beserick is to the same effect, although the concept of propensity is only implicit and their use of `may' and `must' is colloquial rather than strictly logical. Even if the jury are satisfied that the accused did something wrong on a previous occasion, they must not reason that he is even likely on propensity grounds to have committed the offence charged." (Italics in the original.)

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