R v Eaton [1998] VSC 316; [1998] VICSC 81

Supreme Court of Victoria|1998-05-14|Before: Hicks P

For the Crown Mr G. G. Hicks Mr. P. C. Wood, Solicitor

PHILLIPS, C.J.: The applicant, who is aged 40, was involved in a series of proceedings in the County Court at Melbourne in late 1996 and early 1997. On 28 October, 1996 a presentment was filed which alleged against him 30 counts of sexual offences and a single count of attempting to pervert the course of justice. The complainants in the sexual offence counts were a daughter of the applicant and two of her cousins. On 30 October the applicant was arraigned and pleaded not guilty to all the counts. On 4 November an application made on his part for severance of the presentment was partially successful. On 6 November a new presentment (ZB1030A) was filed and this contained a single count of indecent assault. The complainant was one "B.S.", a cousin of the applicant's daughter "M.E.". The applicant pleaded not guilty upon arraignment and a jury acquitted him on 7 November.

On 18 November, a third new presentment (ZB1030C) was filed alleging against the applicant 27 counts, 26 of these related to sexual offences and one to attempting to pervert the course of justice. The complainants were the applicant's daughter "M." and "S.O.". ("S.O." was the daughter of a cousin of the former wife of the applicant.) The applicant pleaded not guilty on arraignment and on 16 December the jury recorded verdicts after their retirement. On 4 December, and 12 December, the jury had given verdicts of acquittal with respect to counts 15, 21 and 27 by direction of the learned trial judge.

The verdicts recorded by the jury on 16 December after their retirement were as follows.

The applicant was acquitted on counts 4, 6, 17, 22, 24 and 26. The applicant was convicted on count 1 (indecent assault upon "M.E." at Doveton between 3 and 4 August, 1989); count 2 (indecent assault on the same complainant at Doveton on another occasion between the same dates); count 3 (taking part in an act of sexual penetration with a child under ten, the same complainant, at Doveton between 6 July, 1989 and 4 August, 1990); count 5 (indecent assault on the same complainant at Doveton between 6 July, 1989 and 31 December, 1990); count 7 (indecent assault on the same complainant at West Heidelberg between 1 August, 1990 and 16 February, 1992); count 8 (incest on the same complainant at Endeavour Hills between 1 October, 1994 and 13 August, 1995); counts 9, 10, 11, 12, 13, 14 and 16 (incest committed upon the same complainant at Endeavour Hills and Dandenong North between 1 October, 1994 and 12 August, 1995); count 18 (rape upon a complainant "S.O." committed at Doveton between 6 July, 1989 and 31 December, 1990); count 20 (indecent assault on the complainant "S.O." at Doveton between 6 July, 1989 and 31 December, 1990) and counts 23 and 25 (sexual penetration of a child between ten and 16, complainant "S.O." at Dandenong North between 1 October, 1994 and 5 July, 1995).

The applicant admitted some 22 prior convictions from 15 court appearances between May, 1976 and May, 1994. These involved traffic and street offences and offences of dishonesty. Some convictions were drug and alcohol related.

For practical purposes the applicant had no prior convictions for violence. A conviction for assault was simply recorded against him in May, 1976 and this must have been a very minor matter.

A plea for leniency was made on 18 December and on 24 February, 1997. Included among the exhibits were a report of the forensic psychologist,

Mr Ian Joblin, and a literacy assessment of the applicant.

On 21 March, the learned judge sentenced the applicant as follows.

Count 1 (presentment No. ZB1030B) - 6 months' imprisonment

Counts 3, 18, 23 and 25 - three years' imprisonment

Counts 9, 10, 11, 12, 13, 14 and 16 - four years' imprisonment

The learned judge went on to state that the sentence imposed on count 1 of the presentment ZB1030B and the sentences on counts 1, 2, 3, 5, 7 and 8 on presentment ZB1030C were "to be served concurrently with each other unless otherwise ordered". His Honour did not otherwise order and continued by directing that the sentence on count 9 was to be served concurrently with the aforementioned sentences and that one year of the sentences imposed on counts 12, 14, 16, 18 and 23 "then be served cumulatively".

It will be observed that the learned judge did not indicate the sentence he was directing cumulation upon nor did he state that the cumulations were to be cumulative upon each other. But he obviously had this in mind for he declared a total effective sentence of nine years' imprisonment. It also appears that he directed that a sentence of four years' imprisonment (count 9) be served concurrently with other sentences which totalled three years' imprisonment.

A non-parole period of seven years was fixed and a declaration made as to pre-sentence detention.

The learned judge also stated that he treated the applicant as a "serious sexual offender" for the purposes of imposing sentences on the counts which came after count 8 on the presentment.

The applicant later lodged notices of application for leave to appeal against conviction as to presentment ZB1030B pleading the following grounds:

"1. The trial judge erred in that he failed to discharge the jury following the admission of evidence of uncharged acts.

2. The trial judge failed to direct the jury as to the use they could make of the Crown's failure to lead certain evidence from "M.E." and "S.V.".

3. The trial judge erred in that he directed the jury that the unsworn evidence of a child could corroborate the unsworn evidence of another child.

(b) The verdict on count 1 is unsafe and unsatisfactory; and in

(i) evidence of "R.O." was uncorroborated other than by the

(ii) the evidence of "N.V." and "R.O." was unreliable."

As to that conviction he also lodged notice of application for leave to appeal against sentence pleading that the sentence was manifestly excessive. As to the convictions sustained on presentment ZB1030C he lodged notice of application for leave to appeal against conviction pleading some 14 grounds as follows.

1. "The trial judge erred by refusing to sever the presentment, and in particular counts 1, 2, 4, 6, 7, 8, 9, 12, 13, 14, 15, 16 and 17; counts 21, 26 and 27; and counts 3, 5, 10, 11, 18, 19, 20, 22, 23, 24 and 25.

2. The trial judge erred in refusing to allow the defence to reply to the prosecution opening.

3. There was a miscarriage of justice in that the jury was brought into contact with the accused when he was obviously in custody.

4. The trial judge erred by excluding evidence of:

(a) A notice written by the witness "M.E." and torn from an exercise book.

(d) The fact that "M.E." was sexually abused by another when she was five years of age.

(e) The use to which the condoms displayed in photograph 17 of Exhibit "A" were to be employed.

(f) The supply to and the ingestion of drugs by "M.E.".

5. The trial judge erred in failing to discharge the jury when the prosecutor spoke to the witness "M.E." outside the Court but during her cross-examination.

6. There was a miscarriage of justice in that the prosecutor led evidence:

(a) in re-examination that did not arise from cross-examination

(b) that was inadmissible and prejudicial to the accused.

7. The verdict of guilty on count 5 is unsafe and unsatisfactory in light of the verdict of acquittal on count 4.

(d) cross-examination of the accused concerning evidence taken at committal.

9. The trial judge erred in directing the jury that the prosecutor did not have to be both fair and balanced.

10. The trial judge erred in directing the jury not to draw an inference that was reasonably open to them on the evidence.

11. The trial judge erred in directing the jury that certain parts of the evidence of "M.E." were corroborated.

12. The trial judge erred in failing to discharge the jury following adverse comments demonstrating bias against the accused.

(a) the trial judge interrupting the cross-examination of various Crown witnesses

(b) the trail judge interrupting the closing address of defence counsel; and

(b) The jury verdicts were unsafe and unsatisfactory."

The applicant also lodged notice of application for leave to appeal against sentence with respect to his sentence on presentment ZB1030C, pleading the sole ground that the sentence was manifestly excessive.

A convenient summary of the facts of the case appears in the reasons for sentence of the sentencing judge.

"Four of your crimes of indecent assault, your offence of taking part in an act of sexual penetration with a child under ten years and your eight offences of incest were committed between August, 1988 and August, 1995. The victim in each case was your daughter who was aged eight or nine at the time of your commission of the indecent assault, which is count 1 on the first presentment.

Your crimes included touching her vagina and putting your fingers in it, cunnilingus and fellatio and having sexual intercourse with her. Your other victim was the daughter of a relative and was about a year older than your daughter.

You committed crimes of indecent assault, rape and two offences of taking part in an act of sexual penetration with a person aged between ten and 16 years upon her.

Again, cunnilingus and fellatio were involved in your offences. A number of crimes were committed against these girls when both were present."

I will now give a more detailed account of the offences and surrounding matters, reflecting the evidence at the trials and utilising the summary of evidence provided to the Court.

The complainant "R. O." was born on 20 June, 1983, the daughter of "Mr and Mrs O.".

The complainant's parents separated prior to the period of alleged offending, and "Mr O." commenced a de facto relationship with his wife's cousin, "S.V.". On 26 July, 1992 the couple went to live in a home in Preston Avenue, Endeavour Hills, where the complainant visited her father every second weekend.

"S.V.'s" children "N.V." (aged ten in 1996) and "E.E..Jnr." (aged 12 in 1996) also resided with their mother, and from October, 1994 to January, 1995 the household was joined by "S.V.'s" third child, "M.E." (born 4 August, 1980), and her former de facto husband, (and father to her three children), the applicant.

At the time the complainant believed the applicant to be a relation, and sometimes called him "Uncle Elwyn". In late January, 1995 the applicant and his daughter "M.E." moved to a residence at Third Avenue, North Dandenong. The complainant went to that address on a number of occasions to visit "M.E.".

At both Preston Avenue and Third Avenue the applicant's children were affectionate to him, and at Third Avenue the complainant would also often sit on the applicant's knee and cuddle him. "Mrs O." observed the applicant to be very kind in his dealings with her children and his own, always giving out money and buying them things.

On an occasion during the period of the applicant's stay at the Preston Avenue home, the complainant had spent the evening there in the lounge room watching television with her father, "S.V.", "N.V" and the applicant. It was late at night and the other adults had fallen asleep, when the applicant told the complainant and "N.V." to go out to the dining room. They complied, and he accompanied them. The kitchen lies between the lounge room and the dining room, and it was not possible to see in from the position of the sleeping adults into the dining room.

The complainant was wearing a pair of shortie pyjamas, with the pant legs above the knee. In the dining room the applicant sat on a dining room chair and told the complainant to sit on his knee. She complied. The applicant then talked to the complainant for a period, before moving his hand inside her pyjama pants and with several fingers touched her briefly on the vagina (count 1).

The complainant then got off the applicant's knee and "N.V." took her place. Shortly afterwards the applicant sent the girls to bed.

In cross-examination the complainant agreed that on the weekend in question, "S.V." had hired a videotape of the film "Baby's Day Out". Another adult couple, "Ross and Kamahl" were also present for the video, though they did not fall asleep in the lounge room with the other adults, but rather retired for the night to "E.E.Jnr.'s" bedroom. The events happened on a Saturday, and "E.E.Jnr." was not present in the house that evening.

When the complainant visited her father at the Endeavour Hills home, the arrangement was that she would share a bed with "N.V". It was only shortly before this event that the applicant had moved to the address.

The dining room was, in this period, being used as a bedroom for "M.E.", and contained a mattress which took up much of the room on the floor.

In re-examination the complainant stated that "M.E.'s" mattress was standing against the wall at the time of the offending.

"N.V.", then aged ten, gave unsworn evidence. She described the events of the evening leading to the commission of count 1 in terms similar to those of the complainant. The group had been watching television and the adults other than the applicant had left the lounge room or fallen asleep on their couches.

The applicant told the two girls to go into the dining room, and they complied. In the dining room the girls each accepted from the applicant "a puff" of the applicant's cigarette, and several of sips of beer. The applicant then sat at a chair that was not part of the dining room suite, and called the complainant over to sit on his lap. She was then positioned "sort of on the side sitting on his knee". With little delay, the applicant started touching the complainant on her vagina with one of his hands. The witness could see the applicant's hand as he touched the complainant's vagina, but she could not recall if his hand was outside or inside the complainant's pants. As he touched her, the applicant kissed the complainant on the lips. At this time the complainant was trying to push the applicant's hand away, and to get off his knee. This she achieved, and the applicant then called his daughter to come onto his knee.

Shortly afterwards the two girls left the room and went to bed. Their departure followed an incident described by "N.V." as "...my Dad asked ("R.O.") if - and they wanted to have "S" in my bed." No such eventuality occurred, and the girls spent the night sleeping "top-to-tail" in the same bed.

As to count 2, the applicant and his daughter, "M.E." moved to an address in Third Avenue, Dandenong North in late January, 1995. The complainant went there on a number of occasions to visit "M.E.". The complainant said she had been sitting on the applicant's knee, which was not unusual. She stood up and the applicant pulled her skirt and tights down to her knees. He then touched her on the vagina with his fingers, for "a few minutes". The complainant was afraid. Eventually she was able to pull her pants up, and waking "M.E" who then joined her, she went to bed.

In cross-examination the complainant stated that she had only stayed at Third Avenue on the one occasion. "N.V" and "E.E.Jnr." had not been present. She had sat on the couch next to the applicant, and he had leaned over to touch her, but she could not recall which hand he used. The complainant gave varying accounts of this incident. She first stated that she had risen from the applicant's knee to look at "E.E.Jnr.'s" bird (a small caged bird) and it was on her return to the applicant that the incident occurred. She later stated that she had not been sitting on the applicant's knee, and she had not gone for a walk prior to the incident. At committal the complainant had given an account of the incident inconsistent with her evidence in cross-examination.

After the incident at Third Avenue the complainant returned to the applicant's home to visit "M.E." on more than one occasion.

The complainant reported this incident to her father on 30 December, during a period of staying with him for the school holidays.

"Mrs O." gave evidence about the various family relationships and her daughter's visits to Preston Avenue and Third Avenue. When the complainant first told "Mrs O." on 31 December, 1995 about her abuse by the applicant, she only told her about a single incident which had occurred at "S.V.'s" home on a weekend.

"S.V." gave evidence about the applicant's residential movements and the various family relationships. She could not recall a mattress in the dining room.

"M.E.", then aged 16, gave evidence about her residential movements with her father, including their periods at Preston Avenue and Third Avenue. At Preston Avenue "M.E." would sometimes sleep on a mattress in the dining room.

The applicant was interviewed by Detective Senior Constable Raymond Ross on 12 April, 1996. Apart from offering a general denial of the allegations put, and specific denials to the suggestions that he had on any occasion given "N.V." or "R.O." alcohol, the applicant gave no comment responses throughout the interview.

He gave an account of the relevant family history essentially consistent with that provided by the Crown witnesses.

As to count 1, the applicant said that there was only one evening, at Preston Avenue, when both the applicant and the couple Ross and Kamahl had stayed the night. The children clamoured on that day to view the film "Baby's Day Out". That night, after watching one or more videos and falling asleep in the lounge room the applicant was woken by "R.O" and "N.V.", and he told the children to go to bed. "S.V.", "Mr O.", "E.E.Jnr", "M.E.", Ross and Kamahl were all present, asleep in the room. The others all rose at this time and retired to their various rooms. The applicant did not touch the complainant on the vagina on this or any other day.

As to count 2, the applicant said that on the only occasion that the complainant stayed with the applicant at Third Avenue, "M.E.", "N.V.", "E.E.Jnr.", and the complainant's older sister "S.O." were also present for the evening.

The applicant denied touching the complainant on the vagina on this or any other day.

It is convenient here to consider the grounds of appeal touching this presentment, the applicant having indicated (as I understood him) that he still relied on each one.

(This alleged error in the trial judge in that he refused to discharge the jury following the admission of "evidence of uncharged acts".)

As to this ground, the transcript reveals the following material events. "N.V.", who had given evidence-in-chief of the applicant touching the complainant on the vagina in the dining room, was cross-examined by counsel for the applicant as to events in the lounge room. Counsel then asked:

"That was the occasion that you say your Dad did something to (the complainant), touched (the complainant)?"

The judge then asked the jury to retire and, in effect, warned counsel for the applicant that his cross-examination may be eliciting evidence of an uncharged act. However, upon proceedings resuming in front of the jury, counsel persisted with his line of questioning. This, in turn, led to re-examination which disclosed two separate alleged incidents, one in the dining room and one in the lounge room. Counsel for the applicant made an application for the jury's discharge which was refused. In the course of his ruling, the judge found that counsel for the applicant had, in cross-examination, in effect put to the witness that if there was an incident, it was in the lounge room.

Such a finding, in my opinion, accurately reflects the run of the evidence. I have generally examined the learned judge's ruling and, in my opinion, no error attaches to it. This ground, I think, fails.

This ground alleged an absence of direction as to the use the jury could make of the Crown's failure to lead certain evidence from "M.E." and "S.V.".

This ground, in my opinion, misconceives what actually occurred at the trial. The Crown called the above witnesses and counsel for the applicant made some point, in his final address to the jury, as to the Crown not eliciting certain evidence from them, which circumstance he apparently claimed made the applicant's evidence more acceptable. An exchange between counsel and the judge (316) shows that an exception which was taken by counsel was, in reality, a complaint that the judge did not repeat to the jury aspects of counsel's final address. In my opinion, it was properly within His Honour's discretion not to do so and no miscarriage of justice occurred. I would not uphold this ground.

This ground alleged misdirection in that the judge directed the jury that unsworn evidence of a child could corroborate like evidence. This ground presumably relates to the witness "N.V." who was aged ten when she gave her evidence without being sworn and to the witness, "R.O." who gave like evidence, aged 13.

S.8 (2A) of the Crimes (Sexual Offences) Act 1991 provides:

"(2A) On the trial of a person for an offence, the judge must not warn, or suggest in any way to, the jury that the law regards...children as an unreliable class of witness."

See also D.P.P. v. Hester (1973) A.C. 296 (explained and distinguished in R. v. Kehagias, Leone and Durkic [1985] VicRp 10; [1985] V.R. 107), Pollitt v. R. [1992] HCA 35; (1992) 174 C.L.R. 558 at p.600 and R. v. Morgan, (a decision of this Court) unreported, judgment given 13 August, 1996. Those cases lead to the conclusions that, in certain circumstances, unsworn evidence of a child could amount to corroboration of like evidence and that there is presently no rule of law or practice that evidence which attracts a corroboration warning cannot corroborate other evidence attracting the same warning.

Here, the judge directed the jury that were they to reject "N.V.'s" evidence, there was a need for "caution" for reasons he proceeded to give. He referred, in this setting, to "the potential for error" and the need to scrutinize "R.O.'s" evidence with great care. He also directed the jury that, as to count 1, the evidence of "N.V." was capable of constituting corroboration of "R.O.'s" evidence. He also warned the jury that "N.V.", "being a child of tender years may be unreliable or may have a motive to be untruthful".

I am unable to detect error in these directions, which operated adversely to the applicant. No exception was taken to them at the trial. I would not uphold this ground.

This alleged inconsistent verdicts. There is nothing of substance in it for as appears above the Crown led different evidence as to each count and the learned judge directed the jury that the complainant's evidence was uncorroborated as to the second count. There was evidence of the complainant having given inconsistent accounts as to this count.

This alleged the verdict on count 1 was unsafe and unsatisfactory and called in aid the matters pleaded in ground 3. There was a further assertion that the evidence of "N.V." and "R.O." was unreliable. I refer to what I have said as to ground 3 and I shall add simply that the reliability of these children was a matter for the jury.

It follows that I am of the opinion that this application should be dismissed.

The first complainant, "M.E", was born on 4 August, 1980, the daughter of the applicant and his former de facto wife, "S.V.". The second complainant "S.O" was born on 6 July, 1979, the daughter of "Mr and Mrs O." "S.O." is the sister of "R.O.", and the primary familial relationships are as described above in relation to the trial upon Presentment ZB1030B. The mothers of the two complainants are cousins, and in the period of alleged offending and at the time of reporting, the girls were friends. "S.O." is not directly related to the applicant.

"M.E.'s" parents' relationship broke up in 1989. Prior to that date the family lived together at a home in Wattle Drive, Doveton. After the break-up, "M.E." went with her father for approximately three months to a home at King Street, Dandenong, and her other siblings went to reside with her mother. The applicant and complainant moved from Dandenong to stay for a period of days with Laurie and Elaine Sherry in Keilor, before moving to a flat in Killerton Crescent, West Heidelberg. They remained there for several months before moving, with "M.E.", aged ten, to Tasmania, where they remained for three and a half years to four years. They returned to Melbourne on 19 October, 1994 and went to stay at Preston Avenue, Endeavour Hills with "S.V.". After approximately three months here, this complainant moved with the applicant to the home at Third Avenue, North Dandenong, where they remained until 14 August, 1995. The second complainant "S.O." visited "M.E." at each of the Doveton, Endeavour Hills and North Dandenong addresses. "S.O." stated that she also visited the complainant once at West Heidelberg, but did not stay the night there. On occasions she slept the night at the Preston Avenue and Third Avenue addresses.

Both complainants gave evidence of sexual assaults upon them by the applicant.

Office of Housing records showed the applicant, "S.V." and their two daughters as being tenants at 30 Wattle Drive, Doveton between 24 April, 1988 and 17 November, 1990. After that date, the records indicated that the applicant and "M.E." had left the premises, while "S.V." remained there until 26 July, 1992.

The first incident recalled by "M.E." occurred when she was eight or nine years of age, and living at 30 Wattle Drive, Doveton - prior to her parent's break-up. She was sitting on a green recliner chair with the applicant, and both were under a blanket. "S.V." was also in the room, on the "far away couch", and an unidentified fourth person was also present. They were watching a video, and it was approximately 8.30 p.m.

The applicant whispered in the complainant's ear, asking her to play with him. He then touched her on the vagina inside her pyjama pants, and told her not to tell anyone as it would result in his going to gaol and her being placed in a home (count 1). The complainant complied with the request, and touched the applicant on his limp penis, massaging it so that it became half erect.

In cross-examination the complainant stated that the video that night had been one of the Terminator films, Terminator 1 or 2. At committal she had believed the video then viewed to have been the sequel. She had misled police about her age at the time of the first incident because she had not wanted to bring "S.O." "into it".

The next incident involving "M.E." occurred at the Doveton house while the complainant was still in grade 4, and nine years of age. It was a school day and her mother was at bingo and her brother and sister at school. The complainant was sitting on a couch with her father when he placed his hand on her leg and then rubbing the leg moved his hand inside her clothing (but outside her underpants) on to her vagina. The whole episode lasted 15 minutes and afterwards the applicant told the complainant not to tell anyone about it (count 2).

On a later date, when "M.E." was around nine years of age, and "S.O." was about 11, the applicant and the two complainants were returning on foot to the Doveton home from a shopping expedition. The other "E." family members had remained at the shopping centre, and on arriving home the applicant found he did not have the keys to the house. The applicant entered the house by breaking a kitchen window, and then let the girls in. It was lunchtime and the girls ate some fish fingers. They also smoked a cigarette and played with "S.V.'s" make-up in her bedroom.

"M.E." gave evidence that in the bedroom the applicant told her he wanted to have sex with "S.O.", and asked his daughter to put his request to her. "M.E." did this in the applicant's presence, and her friend refused, stating that she was "saving it" for someone special. However the applicant took the girls into the bedroom, and lay on the bed, with his daughter on his left and "S.O." on his right. He then had sex with each of the girls, putting his penis into "M.E.'s" vagina while she lay on her back, and repeating the act upon "S.O.". The applicant ejaculated inside his daughter. "S.O." tried to push the applicant away and said to him "Get it out, it hurts", but the applicant persisted. When the applicant had finished the two girls rose and went to the bathroom where they each wiped the applicant's semen from their vaginas. Afterwards the applicant gave the girls money to go to the swimming pool, and he told them to not tell anyone about his having sex with them. There was no-one else present in the house at the time of these incidents (counts 3 and 18).

"S.O." recalled the need, upon the group's return, for the applicant to break-in to gain access to the home. The applicant cooked frozen food for the girls, and then he and "M.E." disappeared into "S.V.'s" bedroom leaving "S.O." alone in the dining room. She grew bored and followed them. She knocked on the door and was invited in. The applicant said something to "M.E.", and then "M.E." asked "S.O." if she would "do sex with Elwyn and that" "S.O." declined, stating that she "didn't want to". The applicant then tried to convince "S.O." to agree, but eventually he walked "S.O." to the pillow end of the bed and told her to lie down. She was the only person laying on the bed, and the applicant removed her underpants. He then positioned himself on the bed between her legs and attempted to force his penis into her vagina. "S.O." complained that this hurt, but the applicant continued his attempts. The applicant managed to penetrate the complainant, and then continued moving his penis in and out of her vagina. "M.E." was just standing facing the dressing table. "S.O." could not recall with certainty whether the applicant had ejaculated, nor what had happened after the applicant finished. "S.O." did not see anything happen between "M.E." and the applicant. She was not herself a willing participant, and she said she made this clear to the applicant.

In cross-examination "M.E." agreed that she had first told police that this incident had occurred when she and "S.O." were older. That had been a mistake. On 4 December, 1995 "M.E." had a telephone conversation with "S.O." which touched on this incident. "M.E." had merely asked "S.O." if she remembered the incident, and "S.O." had replied "Oh, how can you forget?" Otherwise "M.E." could not recall any conversations with "S.O." about the dates of offending. The incident had occurred on a school day, and "M.E." had probably "faked a sickie". "M.E." had originally told police that there had only been touching until she was 11 years. That had been true except for this incident, and she had kept quiet about this incident so as to leave "S.O." out of it. She finally told police about this incident on 26 January, 1996 when she knew "S.O." was also going to discuss the incident with police.

"M.E." did not give any evidence in respect of this incident. "S.O." stated that an incident occurred at 30 Wattle Drive, Doveton when she was still approximately 11 years of age. It was late and everyone had gone to bed except the applicant and two complainants, who remained up watching television in the lounge room. The applicant left the room and returned with a butter knife. He shut the door and then put the knife in the door in a such a way that he "locked" it. He then told the girls to go into one of the children's bedrooms, and followed them in as they complied. The room contained a single bed up against a wall, and the applicant told the girls to lie on the beds. They positioned themselves with their heads rested against the wall, half sitting, half laying. The applicant knelt and slid the girls' underpants off, and then one at a time (choosing "S.O." first), licked them in their respective vaginas as they lay next to each other. The applicant licked "S.O." on the inside of the lips of her vagina (count 5), and then repeated the same operation upon his daughter (count 20). There was no-one else present in this room, with the other children all in bed in other rooms. This incident occurred within a month of the incident referred to in Counts 3 and 18. At this time "S.O." did not know the significance of the acts being performed by the applicant. At some point around the time of the offending the applicant told "S.O." not to tell anyone about the incidents.

"M.E." gave evidence of a single incident which occurred during the period at West Heidelberg about a week after her 10th birthday. The applicant was kneeling on the floor tucking his daughter into bed late one night. He put his hand under the doona and inside her underpants, and inserted two fingers into her vagina. He told the complainant that she was a "good girl", and not to tell anyone.

"M.E." gave evidence of two incidents alleged to have occurred at Preston Avenue, Endeavour Hills.

One incident occurred in the early morning. The applicant and complainant were watching the television show "Steptoe and Son". At its conclusion the applicant asked his daughter to give him oral sex. The complainant obtained a tea towel from the kitchen and returned to the applicant in the lounge room. There she sucked his penis, and after he ejaculated in her mouth, she used the tea towel to clean off the sperm (count 8).

A further incident at the same address occurred at night time. The applicant and his daughter were sleeping on mattresses in the dining room with "R.O.". At first "R.O." was awake and crying, unable to sleep because of the noise of the applicant and complainant rustling sheets. Later "R.O." went to sleep and the applicant had sex with the complainant, putting his penis into her vagina. Everyone else in the house was asleep at the time, though afterwards the complainant had a conversation with her mother about a headache tablet. The complainant's mother did not appear to observe anything (count 9).

"R.O." gave evidence of her fortnightly visits to her father at Preston Avenue, and of a particular visit in 1995. On that occasion she found herself sleeping on a fold up bed in the dining room. The applicant and "M.E." were also sleeping on a mattress in the same room. The lights were off and "R.O." was trying to fall asleep. However the applicant and his daughter were making noises, talking and moving around. The movement came from the mattress with ("M.E." and the applicant), described by the witness with apparent emphasis as "on that side, that side, that side, that side", and from "M.E." running to the toilet several times. This was the only occasion when "R.O." saw what she described. In cross-examination the witness agreed with the proposition that two mattress were "in use" on the night in question.

When the applicant came to leave the Endeavour Hills home "M.E." voluntarily stayed with him. She did this because her father wanted her to stay with him, because he would otherwise be alone, and because she wanted to live closer to "S.O.".

"M.E." described 6 incidents as occurring while she lived with her father at the address at Third Avenue, North Dandenong. One incident involved both herself and "S.O.". She also described an incident involving "S.O." alone. "S.O." described 3 incidents, including one incident involving "M.E." not described by the latter witness.

On a different occasion in this period "M.E." was in her room with "S.O." listening to music. "M.E." was aged 14 and "S.O." about a year older. The applicant entered the room, and placing a knife in the door, asked his daughter "to give him a head job". She complied, sucking his penis. The applicant then had sex with "S.O." on the bed, removing her underwear and putting his penis in her vagina. .

About a week after the events allegedly constituting count 10, "M.E." saw the applicant take "S.O." into his bedroom. She heard noises that indicated the pair were having sex, and when they later emerged she saw the applicant give "S.O." $20. (This was led as an uncharged act.)

"S.O." described the circumstances of this incident in slightly different terms. Upon entering the room, the applicant spoke to the girls, and then pulled "M.E." aside and spoke to her. He then approached "S.O." and gently pushed her onto the bed. She was wearing a night gown and underpants, and the applicant removed the latter, despite her protestation "no". The applicant then positioned himself on top of the complainant between her legs and, drawing his penis through the fly of his pyjama shorts, penetrated her vagina. Fondling the complainant's breasts through her night gown, the applicant continued penetration to ejaculation.

Within a month of the events described in relation to the preceding count, while "S.O." was still 15 years of age, she was again visiting "M.E." at the North Dandenong home. "S.O." gave evidence that it was evening and the applicant was lying on the floor of the lounge room near the heater wearing his pyjama shorts. The girls were sitting respectively on the couch and a recliner chair. The applicant approached the girls and asked them each to suck his penis. "M.E." complied. She took the applicant to ejaculation, and then wiped the semen from the applicant's penis with a tea towel which she had, after the act, collected from the kitchen.

This incident was said to have occurred three days after the complainant had completed a modelling and grooming course, dating the event at 28 April, 1995. She had purchased a new bra and boxer shorts, and was wearing them while watching television in the lounge room. The applicant commented favourably upon the underwear, and then asked the complainant "Why don't you suck me off." He told her she had to do that if she wanted to visit her friend the following day. "M.E." complied, and sucked the applicant's penis.

On a further occasion at North Dandenong, at night time, "M.E." was in the lounge room wearing short pyjama pants and a T-shirt. The applicant asked her for oral sex, and she complied, sucking his penis to ejaculation. She again used a tea towel to clean up afterwards.

On a Saturday night in June, 1995 "M.E." went with her friends Warren, Stefan, Sarah and Tanya to a Blue Light disco in Berwick. She returned home on her own at approximately 1:00 a.m. The applicant spoke to the complainant about her tipsy state, and then asked her for sex. The complainant said that she was tired, but the applicant proceeded to have sex with her anyway, removing her underwear and placing his penis inside her vagina. He told her that if she did not permit him she could no longer see Warren, and he would not purchase for her a compact disc that she wanted.

At this time "M.E." had a boyfriend, the witness Roger Garth. On the evening of 12 August, 1995 she had arranged to go out with Garth, and he arrived late. The applicant had drunk a substantial amount of wine and became enraged by Garth's tardiness. Breaking a lamp he put shards of glass in his mouth. The three then set out from the house together, but the applicant was sick on a neighbour's lawn, and he and his daughter returned to their flat. Garth returned to his own home two doors down. Back at the flat the applicant asked the complainant to give him oral sex, and she complied. The applicant lay on the floor in the lounge room with his pants pulled to his knees, and "M.E." sucked his penis. The applicant felt the complainant's breasts under her clothing. While still engaged in this act, and while crying, the complainant heard Garth calling out her name, and saying words to the effect of "I'll be back in a minute". Afterwards the complainant went to Garth's home where she stayed the night. She did not return home after that evening, and on 15 August, 1995 made a complaint to police.

Prior to that night "M.E." had obtained permission from the applicant to stay the night at Garth's home, on the basis that Garth's sister was also going to be there, and that there was to be no sexual activity. The following morning the applicant drove to Garth's house, where he found the complainant and Garth naked in Garth's parental bed. The complainant returned with the applicant to the Third Avenue flat. She eventually went via her mother's home to the home of her friend Andrew in Lalor. "M.E." denied allegations that she had at other times prostituted herself to this friend.

Roger Garth first met "M.E." in late 1994, when he was her neighbour 2 doors down in Third Avenue, North Dandenong. The two became close friends, and at a point between March and June 1995, after Roger Garth had returned from a period working for a carnival, the pair became boyfriend and girlfriend. On 13 August, 1995 Roger Garth had several indecisive telephone conversations with "M.E.", and went to view a film with his father and sister, Alexander and Lorraine Garth. On returning home that evening he noted that a light was on at the applicant's home and, with his sister, decided to drop in. Inside they sat down and commenced a conversation with "M.E.". The applicant was present and had been drinking alcohol. He became furious with Roger Garth. He asked Garth why he had not taken "M.E." out and told him he did not want Garth to see his daughter any more. He then "cracked right up", smashing a lamp and a glass, and then eating a piece of the broken glass from the floor. Garth took his sister home and then returned to support "M.E.". After 10 minutes Garth went home again, and watched television briefly before returning to the applicant's home.

This time there was no response when he knocked on the door. He could hear a faint crying from inside the house, and called out for "M.E.". He went to a window, and through a gap at the bottom the Venetian blinds, looked inside the room. Inside Garth saw "M.E." kneeling on the floor, with her head on the applicant's penis, giving the applicant oral sex. Seeing this Roger Garth ran back to his house and told his father, Alex Garth. Father and son returned to the applicant's home, where Alex Garth looked through the window for approximately 10 seconds before the pair returned to their own home.

Approximately half an hour later "M.E." came to the Garth house, and Roger Garth indicated to her what he had seen. She started crying, saying that she had been trying to stop it, but that she was too frightened. She did not appear to have been aware that Garth had viewed the acts described.

The following day "M.E." left with the applicant. She had told Garth that she did not wish to live with her father. Garth told his mother what he had seen, and on her initiative, Garth and his mother went that day to offices of the "welfare department" and made a report in relation to the abuse. The same day police came to the Garth house, resulting in Roger Garth's further attending and making a report to Frankston police.

At this time Roger Garth was getting into trouble in relation to burglaries for his drug habit, and this led, around mid-September, 1995, to his mother taking him out of Dandenong. This lead to his relationship with "M.E." ending, though they remained good friends.

In cross-examination Roger Garth agreed that on at least one occasion the applicant had found him with "M.E.", both partially naked, in his father's bed. He agreed that he and "M.E." had enjoyed a sexual relationship. The incident described above was the first time the applicant made it clear that he disapproved of Garth's relationship with his daughter. Garth admitted that he was confused about certain things because of the effect of drugs used by him in the past. In order to maintain their privacy at the applicant's house when they were having sex, or using drugs, Garth and "M.E." would on occasion slip a kitchen knife into the architrave to prevent the bedroom door from being opened.

In re-examination Roger Garth stated that he was not confused about the incident he had seen and had not taken drugs on the night of the incident.

Alexander Garth is the father of Roger Garth. He met the applicant when he moved to Third Avenue, North Dandenong in early 1995. One Friday or Saturday evening in August, 1995, Garth was at home watching sports on television, when his son Roger came home from the applicant's home, extremely angry. Garth gave an account of the day's movements which conflicted with that of his son. Roger Garth seized his father by the arm and stated "I want to show you something". Over his father's opposition, Roger led Garth to the applicant's home, and indicated for him to look through a window. Looking through a gap in the Venetian blinds, Alexander Garth saw the applicant sitting on a foot-rest, with "M.E." sitting on the applicant's knee. The applicant had his hand inside his daughter's jumper, positioned to caress her breasts. Garth viewed this for approximately 15 seconds before returning home. The applicant and complainant did not change position in that period.

Irene Garth is the former de facto wife of Alexander Garth, and the mother of Roger Garth. On a Monday in late July or early August she came to Alexander Garth's home to collect her daughter Lorraine. "Sarah" and "M.E." were present, with others. On the basis of information from Sarah, Irene Garth went that day with Roger and Lorraine to Dandenong office of the community welfare services, and spoke to them about "M.E.".

"M.E." and the applicant were aware at this time of the risk of her falling pregnant to her father. He told her that if she did fall pregnant he would "do an abortion" on her.

"M.E." admitted to having been involved in a dishonest scheme to obtain money in the period following her disclosures to police.

After "M.E." left home, "S.O." visited the North Dandenong flat on two occasions and was there alone with the applicant. On the first occasion she had not known that "M.E." had left home. On the second occasion, she hoped to retrieve some posters for "M.E.".

"M.E." first made her complaint to police after Garth, then being interviewed in relation to certain burglaries, had informed police of the sexual abuse, and police officers had come to the complainant and asked her about the allegations. She did not at first tell the police everything at once because of her concern to leave "S.O." out of it, and because of the timing of her interview. At the time the complainant did not care what the applicant felt about her relationship with Garth, and felt she was free to do whatever she liked with her life regardless of police intervention. After making the complaint she did not go to live with Roger, but in a placement.

"S.O." did not complain to anyone about the sexual assaults at the time of the offending, because the applicant told her not to. She first complained to her former social worker, Gaynor Wright in November, 1995, and a matter a days after that, she first went to make a complaint at a police station. On 6 December, 1995 she returned to the police station and made a VATE complaint. She was accompanied by "M.E.", but did not speak to her then about her complaint. However "M.E." had been present when "S.O." first told her boyfriend "Stef" about her complaints. "S.O." never lived in a placement arranged by Health and Community Services.

"S.O." did not discuss "M.E.'s" complaint with her. "M.E." told her that she would not mention the offending against "S.O." until she was ready to say something.

The depositions of Gaynor Wright were read into evidence. She gave an account of her dealings with "S.O." as her case worker between 28 April, 1994 and 7 July, 1995, and from then as her friend. In August, 1995 "S.O." visited Wright at her home on a number of occasions, and told her about her friend "M.E." who she said had been sexually abused. "S.O." avoided explaining how she herself knew that "M.E." was telling the truth. On the fourth visit "S.O." disclosed for the first time that she had also been a victim of the applicant, in the same way as "M.E.". In response to Wright's questioning "S.O." gave more details of her victimization. She said the applicant was otherwise good to them, giving them cigarettes and $20 a time. She said she had not told her parents because her mother is "stupid", and her father would have killed the applicant.

"S.V." gave evidence confirmatory of many of the general circumstances described by the two complainants.

Straight after the events relating to count 11, the applicant cajoled "S.O." into giving him oral sex as well. She complied, sucking his penis for approximately two minutes, the incident concluding with "S.O." pulling away and the applicant ejaculating on his own belly. "S.O." had not wanted to engage in this act, and had told the applicant that she didn't "want to". "S.O." told nobody about this incident, or the previous incident complained of, because the applicant told her not to. "M.E." did not give any evidence in respect of these offences.

"Mrs O." gave evidence relating to family relationships, the various changes in "S.O.'s" residences, and visiting practices. She agreed, in contradiction of the evidence of the two complainants and "S.V.", that her former husband "Mr O." had maintained a sexual relationship with "S.V." prior to the break-up of her marriage. "S.V." had admitted this to her then, but had stated it would not continue. She had believed that the pair had maintained their involvement. There were occasions when "S.O." had accepted from the applicant lifts back from her father's home, though "Mr O." was not clear on when this had ended.

Certain uncharged acts which allegedly occurred in Tasmania were led in evidence by the Crown.

"M.E." gave evidence of 6 episodes of sexual abuse inflicted by the applicant upon her during their years in Tasmania.

The first episodes occurred while the pair were staying with the applicant's sister, Glenda Hitchens in Newtown. There the complainant experienced digital then penile vaginal penetration in a bedroom. On one occasion she and the applicant were watching a video and ended up on the floor having sex. She was seen by Hitchens getting off the complainant, and this led to the pair being ejected.

Further sexual episodes followed when the couple were staying at a place called "St. Josephs", Taroona, with "Leon and Marty", friends of the applicant. The complainant was still 11 years of age.

Later, with "M.E." still 11, father and daughter moved to Huonville, where they shared a house with the applicant's girlfriend "Jenny" and others, and then Hitchens and her son Patrick. Nothing occurred while Jenny lived there. When "M.E." was nearly 12, she was having a shower getting ready for school, when the applicant came in. She ended up giving him oral sex and was late for school. Other incidents occurred, and the applicant would say that if the complainant did "not do it" she would not get any pocket money.

Hitchens is the sister of the applicant, and suffers from an unidentified form of intellectual disability. She was generally unaware of the details of the applicant's travels to and from their home state of Tasmania, but was aware of the applicant's return at some point with his daughter "M.E.". At that time father and daughter came to live with Hitchens and her son Patrick in her Newtown home. "M.E." slept in the same room as her aunt, and the applicant slept on the floor in the lounge room.

Hitchens could not recall ever finding the applicant and his daughter doing something that they should not have done, but her memory was not very good. She could not recall ever being asked about any such incident by police officers..

After the period at Newtown, Hitchens, her son, and her niece "V.B." later went to join the applicant and complainant in the Acacia Street residence in Huonville. She never took any notice of the complainant's shower habits.

Throughout her period with the applicant and his daughter, their relationship always appeared to Hitchens to be natural.

The depositions of one "V.B." were read into evidence. She is a niece to the applicant, and on the applicant's suggestion, moved in with the applicant and his daughter for a period at Huonville. She reported a conversation between herself and "M.E.", which followed upon her cajoling her cousin to reveal the source of her apparent distress. Having sworn her cousin to secrecy, the complainant said to "V.B." "When I'm in bed at night time, Dad comes in and makes me do things I don't want to do... He makes me suck him... He makes me play with his body all the time." The applicant "played with" "M.E.'s" body as well. The complainant said that this had been "going on for ages", and wanted something to be done about it. That same day "V.B." relayed this complaint to their neighbour, Desmond Andrews. She went to Andrews because the complainant had been particularly concerned that she should not go to the police.

Desmond Andrews (then undergoing a sentence of imprisonment in Tasmania) gave evidence that he was a neighbour to the applicant and his daughter when they lived in Acacia Street, Huonville, Tasmania. He and the applicant had previously met and became reacquainted when Andrews moved into the street in approximately September, 1993, and they became good friends. As a result of a conversation with the applicant's niece, "V.B.", who was then in a distressed state, Andrews had a conversation with the applicant. He told the applicant that "V.B." had told him that "M.E." had said to her that the applicant was having sex with her. The applicant strongly denied this, and Andrews went home. On a day soon after this exchange, Andrews and the applicant were again speaking, and the applicant was under the influence of alcohol. The applicant said that he had discussed the allegation with his daughter, and that she had explained that what she had meant was that when the applicant was asleep intoxicated, she would climb into bed with him and "play around".

Some time after this exchange the applicant and his daughter (with other members of his extended family) were staying at Andrews' home. Late one night, after an earlier expedition to telephone "S.V.", the applicant announced to "M.E." that they should venture home again to "do a bit of tidying up". Motivated by the allegations he had previously heard, after 10 - 15 minutes Andrews followed the pair to the applicant's home. He knocked on the front door, and getting no response, opened the door and entered the house. From the kitchen he looked into the lounge. and on the "bed settee" he saw the applicant positioned on top of the complainant. Both were naked. He then returned home.

The day after this event the applicant returned home permanently. Andrews gave "M.E." the choice of staying with him, but she elected to return to her father. Andrews reported what he had seen to a Detective Davidson of the Huonville Police, and then considered he was not in a position to take the matter further.

In cross-examination Andrews admitted a substantial criminal history, primarily involving offences of dishonesty, but also one count from 1961 of "Defilement" of a 15 year old girl. It was put to him that he had himself paid to have sex with "M.E.", but he refused to answer on the ground that the answer might incriminate him. In re-examination he denied the allegation.

Other witnesses were called by the Crown. Detective Sergeant Gawne was the informant in these matters. "M.E." first made a statement to another officer on 15 August, 1995. She made a second statement on 17 August, 1995, and a search of the applicant's home at Third Avenue, Dandenong North was conducted on 18 August, 1995. Certain items exhibited at the trial were seized during that search. The applicant was interviewed by police that morning in respect of "M.E.'s" complaint, and denied all specific allegations. He also contradicted the complainant in respect of certain of the circumstances surrounding the allegations. The applicant was further interviewed by police on 18 October, 1995, and exercised his right to silence. In a further interview on 12 April, 1996 the applicant again offered mostly "no comment" responses.

The applicant gave evidence in his own defence and called six witnesses in support.

Except as indicated, the applicant gave evidence of his family relationships and residential moves consistent with those described by Crown witnesses.

At some point "Mr O." became a boarder in the applicant's home. After a period "S.V." told the applicant that she wanted to sleep with "Mr O," and from that time the applicant came to sleep in the lounge, and "Mr O." slept with "S.V.". Two or three months after this, the applicant decided to leave the house, and "M.E." elected to go with him. Thereafter they moved address on a number of occasions. It was only on the move into the address at West Heidelberg that the applicant bought the green recliner chair in which a number of the earlier offences were alleged to have occurred.

The applicant denied all the specific allegations of sexual abuse in relation to each of the complainants.

The applicant denied the allegations in respect of the period spent in Tasmania. In respect of the alleged sexual relationship at Taroona, the applicant emphasised that he had a relationship with a Jennifer Ward at that time.

At first the applicant thought Roger Garth was "okay", and only turned against him when he knew Garth was smoking marijuana and using other kinds of drugs in his place. The applicant did not want "M.E." to use drugs.

The argument with Garth over his coming late to pick up "M.E." occurred on Friday 11 August, 1995, and the applicant did become upset, and chewed broken glass. It was not until the following night that "M.E." stayed over at the Garth house, on the condition that no sexual activity or drugs would be involved. When the applicant came to collect his daughter as arranged on the Sunday morning, he found her naked in bed with Roger, and became furious.

"M.E." spent part of that day with her friends at the applicant's home, and part with the applicant and the family at Endeavour Hills. "M.E." stayed the Sunday night with her father at the home of his friend, Andrew [Christoffel]. They returned home to North Dandenong the next day, where they had undescribed dealings with "the authorities". It was around the Tuesday that "M.E." was taken away by the authorities.

The applicant did not own a car until 15 September, 1995. His friend Doreen Seares had accompanied him when he purchased this vehicle. "S.O." visited the applicant alone at his unit between 15 August, 1995 and 15 September, 1995. Between that latter date and 11 December, 1995, she also travelled with the applicant in his car.

In cross-examination the applicant denied ever viewing the movie "The Terminator", having a dislike of violent films. He agreed he would "nurse" "M.E." on his knee, or close beside him, when she was a child.

The applicant had not positively wanted "M.E." to join him when he moved out of the Endeavour Hills home. He did not develop the plan of going to Tasmania for some time, though he had told the family he might return there sometime.

Neither "S.V." nor "M.E." held a grievance towards the applicant following the break-up.

At Newtown the applicant and "M.E." never stayed in Patrick Hitchens' room.

At Taroona the applicant never visited his daughter in her room at night.

The applicant agreed that he would continue to cuddle "M.E.", and rest his hand on the outside of her thigh for long periods, at Huonville, after his daughter had entered puberty.

The applicant had an argument with Desmond Andrews, but it was about "M.E." setting the police on Andrews, not about allegations of the applicant's misconduct with his daughter. The applicant never gave Andrews an account of the complainant "playing with him" unawares.

The applicant agreed that he would on occasions get drunk when he was home alone with the complainant.

On the night of the argument with Roger Garth, after Garth had gone home and the applicant had returned from the trip to the telephone booth, the applicant briefly visited Doreen Seares at 9:45 p.m.

The applicant had not given any instructions to his counsel as to sexual incidents between "M.E." and his friend Andrew Christofel.

The other defence witnesses, with the exception of one, Doreen Seares, gave evidence as to matters of which the applicant was acquitted. Seares said she was a friend and neighbour to the applicant at his Third Avenue, North Dandenong address. She knew "Mr O." and "S.V." as boyfriend and girlfriend, and had been told by "S.V." that as far as Social Security is concerned, "Mr O." was only her boarder.

On the Friday night of the weekend before "M.E." left her father's flat, the applicant came over to Seares' flat at 9.45 p.m. and stayed for an hour. He was a little drunk and talkative, talking about his deceased sister. Seares saw the applicant again on Sunday 13 August, 1995. She saw him drive up to and enter his flat, and shortly afterwards "M.E.", her cousin, and a group of young men came walking out.

Seares confirmed that the applicant had not had a car prior to his purchase of a vehicle with money that he said he had won.

The applicant had been refused Legal Aid and addressed the Court on his own behalf. If I may say so, he is very far from being an articulate person. Mr Joblin's report, (in which he was categorised as borderline retarded), revealed that intelligence testing showed a verbal IQ of 74, only a few points over the cut-off point delineating mental retardation.

He sought to address all the grounds of appeal pleaded but a number of them involved matters of which he plainly had no understanding whatsoever. So much at sea was he that on a number of occasions he read from the Respondent's outline of argument, apparently seeing it as the only orderly progression of thought he could lay his hands on. I found it necessary on a number of occasions, as presiding judge, to attempt to explain (and I fear with limited success) legal concepts touching the application and to ask him to, in effect, trust the Court to apply them.

The refusal of Legal Aid to the applicant, in my opinion, denied the Court the assistance it was entitled to receive in a complex matter.

I find it convenient to deal with the grounds pleaded in the following order.

This alleged error in the judge in refusing to allow counsel for the applicant to reply to the Crown prosecutor's opening address. Counsel for the applicant relied on certain provisions of the Crimes (Criminal Trials) Act 1993. Specifically, ss.13 and 5 thereof. Section 13 reads:

(1) In a proceeding for an offence in relation to which a hearing under section 5 has been conducted, counsel for the accused has the right to reply to the opening speech of the prosecutor.

(a) to indicate briefly the facts, and inferences sought to be drawn from those facts, with which issue is not taken;

(3) If counsel for the accused chooses to exercise this right of reply, he or she must do so immediately after the prosecutor's opening speech.

(4) The presiding judge may limit the length of the prosecutor's opening speech or the reply of counsel for the accused."

Counsel submitted that the proceeding which had occurred after the applicant's arraignment on 30 October and which resulted in the orders touching severance of the presentment made on 4 November was a Direction Hearing pursuant to s.5 and, accordingly, he was entitled as of right to reply to the opening speech of the prosecutor pursuant to s.13(1).

The learned judge refused the application holding that the abovementioned proceeding was not a proceeding within s.5. His Honour referred without naming it to s.391A of the Crimes Act 1958 which provides:

"Where an accused person is arraigned on indictment or presentment before the Supreme Court or the County Court the Court before which the arraignment takes place, if the Court thinks fit, may before the empanelling of a jury for the trial hear and determine any question with respect to the trial of the accused person which the Court considers necessary to ensure that the trial will be conducted fairly and expeditiously and the hearing and determination of any such question shall be conducted and have the same effect and consequences in all respects as such a hearing and determination would have had before the enactment of this section if the hearing and determination had occurred after the jury had been empanelled."

An assessment of His Honour's ruling is not without difficulty for having accurately recited the contents of s.13(1), the learned judge then proceeded to mis-state them no less than three times, at one point declaring "the question is therefore, is this a proceeding for an offence in relation to which a hearing under s.5 is being conducted." (Emphasis mine.) However, I have come to conclude that, essentially, His Honour ruled that the right conferred by s.13 could not be claimed because a s.5 hearing had not been conducted.

Although s.5 empowers a judge, inter alia, to "determine any question of law...that arises, or that is anticipated to arise, in the trial", the other empowering sub-sections strongly suggest to me a hearing conducted at a point of time removed from the trial. Accordingly, although the order touching severance may be properly described as determining a question of law, (which is what the judge said he did in argument) I think the proceeding relied on was a proceeding within s.391(a) and was correctly identified as such by the judge. It is to be noted that the Crimes (Criminal Trials) Act 1993 expressly does not limit the operation of that section (see s.22).

I am therefore unable to detect error in the judge's ruling. If error there was it is difficult to see any real disadvantage fell upon the accused. What could his counsel have said, consistently with s.13(2)? He could have said that the applicant denied the offences - but the Crown prosecutor had already opened the applicant's denials to the police. He could have outlined the issues in relation to count of attempting to pervert the course of justice, but the applicant was later acquitted of that count.

In this error was alleged in the judge in refusing to discharge the jury after they had seen the applicant seated in the dock before the judge came on the Bench to commence the day's sittings. Counsel for the applicant had argued that, as the jury had entered a locked court room, they would conclude that the applicant was in custody and might speculate as to why this was so. In refusing to discharge the jury the learned judge rejected the contention that the jury would have regarded the applicant as being held in custody. In my opinion, it was plainly open to him to make this rejection. His Honour noted that during the course of the trial to that point the jury would have seen the applicant seated in the dock. Compare R. v. Mercuri, a decision of this Court, unreported judgment given 28 November, 1997, where a jury had seen an accused person wearing a restraining belt. In that case, the Court rejected an allegation of error in the presiding judge in refusing to discharge the jury.

At a glance

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Judgment (246 paragraphs)

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Legislation Cited (2)