R v Ellul [2008] VSCA 106

1 The applicant was tried in the County Court in September 2006 on a presentment that contained 10 counts, comprising unlawful and indecent assault (counts 1 and 5), gross indecency (counts 2, 4, 6, 8 and 10), and unlawful public exposure (counts 3, 7 and 9). Counts 2 and 3, 6 and 7, and 8 and 9 were alternative counts. The applicant was convicted on counts 1, 2 and 5. He was acquitted by direction on counts 3, 7, 8 and 9 and by the verdict of the jury on counts 4, 6 and 10. Following a plea in mitigation, on each count he was convicted and fined $200 with a stay of six months, ordered to undergo a forensic procedure under s 464ZF(2) of the Crimes Act 1958 and was declared a 'registrable offender', Class 2 with life reporting conditions for the purpose of the Sex Offenders Registration Act 2004.

2 The applicant now seeks leave to appeal against his conviction (but not the sentences imposed) on counts 1, 2 and 5. For reasons referred to below, the Crown concedes that the verdicts on counts 1 and 5 ought be quashed, but seeks to uphold the conviction on count 2.

3 The 10 counts concern the one female complainant, who was born on 11 August 1974 and was thus aged 32 at the time of the trial. At all relevant times the complainant lived with her parents and her brother (who died in November 2005) and sister (who died in March 1987) at their home in Parer Road, Airport West. The applicant, who lived next door, was born on 29 July 1933 and was thus aged 73 at the time of the trial.

4 In each count the offending is alleged to have occurred between dates, the earliest date being 11 August 1978 in count 1 and the latest being 10 August 1988 in count 10. The offence alleged in count 1 occurred when the complainant was aged about five or six; that in count 2 when she was aged about eight or nine; and that in count 5 on her ninth birthday. The latest event (count 10) occurred when she was about 13.

5 The presentment originally filed included as count 1 a charge that the applicant in November 1977 indecently assaulted the complainant's mother. After hearing argument the judge ordered that this charge be severed from the presentment and, in consequence, two separate presentments were filed over the original presentment. One contained the single count of indecent assault on the complainant's mother; the other contained the 10 counts relating to the complainant. The trial on the latter presentment proceeded first. Following verdict on that presentment, and immediately before the plea, the applicant was arraigned on the former presentment, and pleaded not guilty to the single count thereon. The prosecutor requested that the trial be adjourned. The judge refused the application. On the prosecutor then indicating that the respondent was not in a position to call evidence, the judge ruled that a verdict of not guilty be entered on the record.

6 Prior to the applicant being arraigned, there was argument as to the admissibility of evidence in the statements of the complainant, her mother and five other female witnesses, being all the lay witnesses the Crown then proposed to call. The five female witnesses had been childhood friends of the complainant. There were two aspects to the argument: first, whether certain parts of their evidence should not be given by reason of its undue prejudice or otherwise, and secondly, whether their evidence of uncharged acts was admissible. On the first point, it was decided that the complainant's mother and one of the other five witnesses not be called. That left the complainant and four others (BMO, MMP, WAF and LKC) as the lay witnesses to be called at the trial. And, as to their evidence, certain parts were excluded. (For ease of reference we shall refer to BMO, MMP, WAF and LKC collectively as 'the friends').

7 As to the second point concerning the admissibility of evidence of uncharged acts, the judge made two rulings. He first considered the complainant's evidence of uncharged acts of masturbation in the presence of herself and other young girls. He ruled that the evidence was admissible as relationship evidence, showing the context in which the offences charged occurred. Then, having heard submissions as to the admissibility of the uncharged act evidence of the friends - again being of the applicant masturbating in their presence - the judge ruled that the evidence was admissible.[1]

8 In the course of the pre-trial submissions concerning the admissibility of the evidence of uncharged acts, the applicant's counsel indicated that he had instructions to put to the friends that they had colluded to make up the allegations against the applicant. Following the ruling on admissibility the applicant's counsel sought, and the judge permitted, a Basha inquiry with respect to the four friends. They were questioned by the applicant's counsel on the possibility of collusion or concoction of evidence among the complainant and themselves. Following the Basha inquiry the applicant was arraigned, the jury was empanelled and the trial proceeded.

9 The Crown called the complainant, each of the friends and a police officer, who produced the applicant's record of interview and photographs of the complainant's and applicant's properties. In her evidence-in-chief concerning counts 1, 2 and 5, the complainant said:

(a) Count 1 - Her mother had requested her to go to the local milk bar for some soft drink. She ran downstairs and outside. The applicant saw her leaving or running down the stairs and jumped over the fence. He said 'Hello, beautiful' when he was jumping the fence. The applicant sat the complainant down on his knee; this occurred at the bottom of the stairs at her house. She was wearing a red tartan skirt and stockings. The applicant put his hand inside the back of her skirt and stockings and under her underpants and touched her bottom and talked to her. He did not leave his hand there for very long. The complainant jumped off the applicant's knee and ran down the driveway to the milk bar and bought a bottle of lemonade. She recalled the incident because as she was running back down the hill she fell, tearing her stockings and hurting her arm and hands. She was quite distressed when she got home because she had broken the bottle of lemonade.

(b) Count 2 (and 3) - While in the back yard of her property with her sister, the complainant saw the applicant standing against the glass door in the sunroom of his house, facing them, with his penis out and masturbating. The complainant went inside.

(c) Count 5 - This day being her birthday, the complainant had about six girls (including her sister) home after school for a party; while playing in the back yard the applicant asked what the occasion was and the complainant said it was her birthday, at which he jumped the fence and kissed her on the lips and put his tongue in her mouth. The complainant ran off and the applicant jumped back over the fence.

10 In addition to the incident of masturbation that was the subject of count 2, the complainant also gave evidence of seeing the applicant masturbate on other occasions. These occasions were not the subject of any count. The complainant said that whenever she and her sister (who always played together) were in the backyard, they saw the applicant masturbating in the back of his sunroom. He 'would often come outside and stand in the sunroom against the window and masturbate'. The complainant said further that '[t]here was actually numerous occasions that I saw him masturbating'.

11 As to the other counts, it is sufficient to note that counts 4, 6 and 7 involved the applicant in acts of simulated sex face-down on a couch in his sunroom; count 10 was exposure of his penis to a hole in the fence; and no evidence was led on counts 8 and 9.

12 The complainant was extensively cross-examined as to the reliability and accuracy of her memory and as to her credit. The matters addressed included: her age at the times of alleged offending (for example, it was possible the count 1 incident could have occurred between the ages of 4 and 7); differences between her police statements and her evidence at the committal and trial; and details of the adjoining properties, including how she could have seen the applicant in his property. The complainant agreed that she did not complain to her mother about any of the 'specific incidents'. At another point she attributed having given different versions of an incident to the fact that the applicant had 'masturbated so often I must have confused myself'. As to the kissing incident she agreed that she had said in her police statement that the applicant jumped the fence and demanded a kiss, whereas in her evidence in chief she said that he grabbed her and kissed her. She further agreed in relation to this incident that, although she had told the police that the applicant grabbed her by the head and forcibly put his tongue into her mouth, she had not said that in evidence in chief. These references reflect the closeness of the cross-examination. There was a deal of questioning as to her relationship with the friends and pertaining to the possibility of collusion or concoction of their evidence.

13 We now refer, to the extent necessary, to the evidence of the friends.

(a) BMO was born in 1971 and until she was 21 lived with her parents in a house alongside the complainant's house. The applicant lived on the other side of the complainant's house. BMO had a younger sister WAF. BMO knew the complainant's family, but knew the complainant and her sister the most. She played with them mainly in the backyard of the complainant's house, from when she was about 7, 8 or 9 until she was 21. 'Once or twice', when she was approximately 11, she had seen the applicant in his back yard when they were coming out to the landing at the complainant's house; he was near the sliding door from the stairway landing at his house and facing towards the complainant's back yard; he was moving his hands between his legs and wearing what she thought was a brown dressing gown. When she saw this she walked down the stairs and moved away from the view. In cross-examination she said that her age on these occasions could have been 11 or a few years either side thereof. She told her parents about the incident, 'probably that day'. She had remained a good friend of the complainant and her sister. She had not maintained a friendship with LKC, and had not known MMP.

(b) MMP was 40 years of age at the time of the trial. As a child she lived with her family on a property somewhat offset and to the rear of the applicant's property. That is, MMP's property faced into a street parallel with the street in which the complainant and the applicant lived. She was a friend of the applicant's daughters and played with them predominantly at the applicant's house. That was when she was about 9 to 12 years of age. She said that, on one occasion when she was watching television with them at their house, she heard someone to the left of her say 'pssst'. She looked and saw the applicant with his penis in his hand playing with it. The other children could not see him. She turned her head away as quickly as she could. As to how many times that happened, she said 'throughout - over the years ... it happened'. In cross-examination she said that she did not complain to anyone. She stopped going around to the applicant's house at some point of time. She did not know LKC. She knew the complainant when she was a child. BMO and WAF used to live behind her family's house. She had not seen anyone from the neighbourhood bar her sister since she was about 10 or 11.

(c) WAF is a younger sister of BMO. She was born in 1973 and was thus aged 33 at the time of the trial. She played with the complainant and her sister from the age of 4 until she was 15 or 16, in the front and back yards. She gave evidence of seeing the applicant standing in his front doorway, wearing a white towel, and 'playing with himself'; she saw this five times over nearly five years from about 1980 to about 1985. She remembered saying 'Stop doing that, you dirty old man'. In cross-examination she said the five times was an estimate. She saw movement of the applicant's hand inside the towel. She agreed that the applicant could have been doing something other than masturbating. She is a close friend of the complainant. She is a friend of LKC but not of MMP; she did not see them that often. She is a good friend with her sister.

(d) LKC is a cousin of the complainant and was born on 10 December 1969. In 1984, after arriving in Australia, she lived with the complainant's family for approximately three months from April to July 1984; she was then aged 14. Over the next four or five years she visited the complainant at her house frequently, mostly on weekends. They would play in the backyard. She knew that the applicant was a neighbour. When playing in the complainant's backyard, and sometimes in the front, she sometimes observed the applicant masturbating. At the back he would normally be at the door to his sunroom and sometimes he would come to the fence. Sometimes he would be naked and sometimes partially clothed. At the front she recalled the applicant being on the side of the complainant's property often, with a towel wrapped around him and appearing to masturbate. Sometimes he would come and knock on the door to talk to the complainant's mother, she presumed; he would be dressed or have a towel around his lower body and that was where she occasionally saw him appear to masturbate. When she saw the applicant at the front, the complainant would often be there and sometimes other children could have been there. In cross-examination she said that she saw these incidents quite a few times and definitely more than five. The applicant masturbated when he was standing at the back door of his property and appeared to do so when he was wearing the towel. After a period of lost contact, she and the complainant had been close friends over the last half dozen years or so. She did not complain to anyone over the incidents. WAF and BMO are acquaintances rather than friends, and MMP is 'not a mate ... at all'.

14 The applicant neither gave evidence nor called any witness on his behalf.

15 On 3 October 2006, promptly after sentencing on 28 September, an application for leave to appeal against conviction was filed. It appears to have been filed by Victoria Legal Aid. The grounds were stated as follows:

(1) Having regard to the whole of the evidence, the verdict was unsafe and unsatisfactory. In particular

1.1 The allegations are between 20 and 25 years old;

1.2 There is no corroboration of the charged incidents; and

such a conviction is unsafe in all the circumstances.

(2) The judge erred in law by ruling admissible the evidence of the uncharged acts alleged by the complainant on the grounds of 'probative value'.

(3) The judge erred in failing to exercise his discretion to exclude the evidence of the uncharged acts having regard to the probative value [of] the evidence being greatly outweighed by the prejudice to the accused.

(4) The judge erred in law by combining the Longman direction with the Kilby direction. In particular

4.1 by combining both directions the accused was denied the benefit of the jury giving separate and considered weight to each direction

(5) The judge erred in failing to give a propensity direction in relation to the evidence for the charged acts. In particular

5.1 the judge did not warn the jury that the charged counts were not cross admissible

5.2 the judge did not warn the jury that the charged counts could not be used for probability reasoning

(6) The Trial Judge erred in advising the jury there was an admission made by the accused in the Record of Interview to the effect that persons from next door could see over the fence into the property of the accused, insofar as:

6.1 The Crown did not argue or rely upon any such purported admission;

6.2 The Trial Judge initially failed to read the entirety of the relevant passage which clearly indicated there was no such admission made.

(7) Upon the Trial Judge's redirection to the jury, the trial judge erred in directing that the jury was open to forming a view on the question of whether an admission had been made, given that:

16 Subsequently, on 7 June 2007, the applicant filed a document entitled 'Appendage Of Initial Lodgement of Appeal', in which he said that he wished to appeal against conviction on the grounds which he set out. These were the seven above grounds but with the addition of the following which he included as ground 3, namely:

1. I was misrepresented by my Barrister ... to the point of being incompetent, by not defending me on the basis of Corroboration, Concoction and Conspiracy.

It is convenient to refer to this as additional ground 3, thus enabling reference to the other grounds by their number in the initial application for leave to appeal. The corroboration, concoction and conspiracy to which the applicant refers in additional ground 3 is that which he alleges existed, and the existence of which his counsel sought to establish at the trial, between the complainant and the friends. His allegation, made in his record of interview tendered at the trial, was that the allegations against him were lies.

17 While the Crown submitted that all of the grounds of appeal should be rejected, counsel drew to the attention of the Court an error in the judge's charge (not forming part of the applicant's grounds) which rendered the convictions on grounds 1 and 5 unsustainable. The error lay in the failure of the judge to direct the jury that they could not use the friends' evidence of uncharged acts in relation to counts 1 and 5. We refer to the point in some greater detail below. The respondent did not rely upon the proviso to uphold the convictions on counts 1 and 5. Rather, counsel submitted that the verdicts ought be quashed and verdicts of acquittal entered on both counts. This was because, in the circumstances, it was unjust to order a retrial. Counsel further brought to the Court's attention that the effect of such a disposition would be that the applicant would, by reason of s 6(3)(c)(i) and (ii) of the Sex Offenders Registration Act 2004, cease to be a registrable offender under that Act.

18 The Court was of the view that the Crown's submissions in these respects were appropriate and correct and ordered at the conclusion of the hearing that the application for leave to appeal in relation to counts 1 and 5 be granted, the appeal be heard instanter and allowed and the convictions on those counts be quashed. The Court also directed the entry of a verdict of acquittal on those counts and set aside the declaration that the appellant was a registrable offender and the order for a forensic procedure. The Court reserved its decision on the application concerning count 2.

19 In our view there is no substance to this ground. The complainant gave evidence of the incidents the subject of count 2, and the jury were given an appropriate and strong warning in accordance with Longman v R.[2] There was nothing about the complainant's evidence that meant that the jury could not have acted upon it or, conversely, that meant they were bound to reject the evidence: see M v R.[3] Furthermore, the evidence of the friends supported the conviction on count 2, as we explain below. In short, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on count 2.

20 These grounds concern the admission of the evidence of uncharged acts. It is convenient to defer consideration of them.

Additional ground 3 - incompetence of counsel

21 The assertion in the additional ground is that the applicant's counsel did not defend him on the basis that the complainant and the friends had colluded to make up a case against him. In fact, however, his counsel did pursue such a defence, commencing, in the case of the friends, with the Basha inquiry. Moreover, the judge charged the jury upon collusion and collaboration, leaving the issue to them for consideration. He left it on the basis that they must be satisfied beyond reasonable doubt that there was no collusion or collaboration; if not so satisfied, there must be a doubt as to the reliability of the evidence and the applicant should be acquitted.

22 It is clear from their verdicts that the jury were satisfied that there was no collusion or collaboration. In considering this ground we have had regard to all that the applicant has stated in his 'Appendage' document, notwithstanding that some of it is irrelevant and not properly arguable on appeal. On analysis, and having regard to counsel's conduct of the defence overall, which was forensically understandable, the ground must be rejected as being without foundation.

Ground 4 - combining the Longman and Kilby directions

23 The complaint here is not that a Longman[4] direction and a Kilby[5] direction were not given, but that they were combined, with the consequence that the applicant was denied the benefit of the jury giving separate and considered weight to each direction.

24 It is unnecessary to set out the section of the charge in which the directions were given. It runs over several pages. What is apparent is that the directions were given, not as one but separately, and concerned with the different aspects or consequences of delay and in strong terms, favourable to the applicant. The complaint really is that the directions were given in the same section or context of the charge. We consider that the manner and terms in which the judge structured the charge in these respects, including the close proximity of the directions to each other, was properly open and convenient in the circumstances. The directions were given clearly and distinctly and we do not consider it realistically likely that the jury did not give them separate and considered weight.

Ground 5 - propensity direction in respect of charged acts

25 We consider that this ground, too, is not made out. In the first place, as counsel for the Crown pointed out, in the case of a presentment with multiple counts but only one complainant it is usually unnecessary to give more than a separate consideration direction: R v J (No 2);[6] R v DCC.[7] That is, a propensity direction is not usually necessary. Secondly, the judge gave the jury a clear and emphatic separate consideration direction, stating that 'Each count must be considered separately in light of the evidence which applies only to that count'.

26 But the judge went further and immediately gave the jury a propensity direction, warning that if they found the applicant guilty of one count they 'must not reason that because the accused engaged in that conduct he is the kind of person who is likely to have committed any of the other offences for which he is charged. That would be wrong at law and it would be false reasoning'. That, as counsel for the Crown submitted, sufficiently dealt with the concerns expressed in this ground. Lest there be any doubt about this matter, the fact that the jury acquitted the applicant on counts 4, 6 and 10 indicates that they gave separate consideration to each count, and did not engage in impermissible propensity reasoning.

Grounds 6 and 7 - view into the applicant's property

27 The issue to which these grounds relate is the extent of the view that a person - relevantly, the complainant and her then girlfriends - could have had from the complainant's landing and backyard into the applicant's house. A related factor was the complainant's height, and thus her ability to see to the applicant's house, at the times in question. This matter was the subject of questions in the applicant's record of interview that, with some exclusions, was tendered in evidence. At a late stage in his charge, the judge referred to the record of interview, concluding the reference by saying that the applicant 'made admissions you might think about what view you could have had from the backyard'. That is, the jury 'might think' the applicant made admissions as to that view in his record of interview.

28 Exception was taken to this part of the charge, on the basis that the relevant answers in the record of interview were not capable of constituting an admission. After discussion the judge re-directed the jury. To understand the re-direction it is necessary to refer to the questions and answers in this part of the record of interview (questions 145 to 158 inclusive) as follows:

1. Do you agree that your - your sunroom - from your sunroom door you can see into the backyard at the [complainant's] house?

1. Do you - would you agree that if you stood at your door and you were masturbating, that you could see you from the backyard of the [complainant's] house?

Well, she can make all sorts of allegations. Put it this way, not necessarily they are true.

The question is I sit on that couch where you saw me watch television - - -

And nothing else. What they think and what they allege - it's a 2 - 2 different story.

1. If you were standing at your sunroom door, masturbating, would you be able to s -, would - would the people in the backyard of the [complainant's] house be able to see you?

1. But if you were doing it, would they be able to see you from the backyard?

I don't know because I never looked in my - in my couch from their backyard when I was cutting the trees - - -

1. If you stand at your - if you stand at your sunroom door, can you see into the backyard of the [complainant's] house?

You took photographs. Of course you can see. Is it a crime?

29 When the judge re-directed the jury, he reminded them that they might ignore any comment of his on the facts. He then referred to the record of interview and his comment 'that it would appear the accused man made an admission in relation to what view you could have from the back of the house into the backyard and vice versa'. The judge said that counsel for the applicant submitted that 'it is not an admission at all, despite what I said to you as a comment'. The judge then told the jury that before they 'could use any admissions said to be made by an accused man they would have to be satisfied obviously beyond reasonable doubt that it was an admission in relation to the matters that were put'. The judge then read out relevant parts of the record of interview, namely questions 145, 146, 151-153, and 155-158. The judge concluded by telling the jury that whether there was an admission in the way he had suggested was a matter for them.

30 As might be expected, at an early stage in his charge the judge gave the usual direction as to the jury being the judge of fact and that they may reject any comment he might make about the evidence. In our view, if not initially then certainly by later re-direction, the jury must clearly have understood that it was a matter for them to determine, regardless of any comment of the judge, whether an admission had been made as to the view from the complainant's property into the applicant's house. In this consideration the jury had the benefit of photographs of the property. Further, in re-directing the judge placed the answers to questions 151 and 152 in the context of the other questions mentioned above. Moreover, in our view, the judge's initial comment as to an admission of the view was fairly open on the answers to questions 151 and 152.

31 For these reasons grounds 6 and 7 are not made out.

Grounds 2 and 3 - uncharged acts and the error affecting the verdicts on counts 1 and 5

32 Ground 2 attacks the admission of the complainant's evidence of uncharged acts. Ground 3 would seem to be directed at the admission of the uncharged act evidence of the friends.

33 Evidence of uncharged acts is a form of propensity evidence. 'Uncharged acts' in this context means not merely conduct that constitutes a criminal offence other than that with which the accused is charged, but also 'other discreditable conduct reflecting the bad character of the accused'.[8] In Pfennig v R[9] Mason CJ, Deane and Dawson JJ said of propensity evidence that:

There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term "similar fact" evidence is often used in a general but inaccurate sense.[10]

34 In R v Best,[11] Callaway JA, with whom Phillips CJ and Buchanan JA agreed, after referring to the passage from the judgment of Mason CJ, Deane and Dawson JJ set out in the previous paragraph, stated that:

The two main divisions of propensity evidence are similar fact evidence and relationship evidence. There are subdivisions. For example, similar fact evidence may go to the identity of the offender or to the improbability of coincidence if a number of similar accounts are all true. It usually, but not always, involves an offence against a different victim. Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible. On other occasions it negates accident or establishes motive. The foregoing is neither exhaustive nor intended to be definitive.

35 In Victoria, the test for the admissibility of propensity evidence is prescribed by s 398A of the Crimes Act 1958, sub-s (2) of which provides that:

(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the Court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

It is of course inherent in propensity evidence that it will, by its nature, be prejudicial to the accused. That is because it is evidence of other offences or of other discreditable conduct.

36 A feature of s 398A(2) is that it does not confer a discretion not to admit but, rather, requires a conclusion whether it is just to admit notwithstanding prejudice.[12] In R v Tektonopoulos[13] Winneke P, with whom Charles and Batt JJA agreed, observed that the question under s 398A(2):

... is one of law and not discretion, although it must involve matters of degree and value judgment in which the experience of the judge will play a prominent role ... In truth the judge has no discretion because if he concludes that the evidence is sufficiently probative as to render it just to admit it despite its prejudicial effect, he must admit it.

37 The question whether it is 'just' to admit propensity evidence can only be determined with regard to the facts of the particular case. For that reason, as Winneke P further observed in Tektonopoulos:[14]

... [I]t is not possible to develop a set of guidelines which can be universally applied. It would, however, appear from authority and practice that the nature of the evidence sought to be tendered and the purpose to which it is proposed to be put has a part to play. Indeed, ever since R v Ball [1911] AC 47, it does not seem to have been doubted that, in a sexual offence case, evidence of criminal or other discreditable conduct is admissible to establish the "guilty relationship" or "sexual passion" existing between the complainant and the accused provided that suitable warnings are given by the judge to the jury against its impermissible use.

38 In his charge to the jury the judge explained the basis on which he had allowed evidence of uncharged acts. It was, he said, exceptional to allow such evidence and it could only be used if the jury was satisfied beyond reasonable doubt that such conduct in fact occurred.[15] His Honour further directed the jury that this evidence could be used only for the limited purpose of determining whether there was an ongoing series of events, as described, between the complainant and the applicant, 'thereby enabling the evidence relied on by the Crown in proof of the individual charges to be assessed and evaluated within a realistic contextual setting.' His Honour said:

If someone were to make an allegation of isolated behaviour on specific occasions, without the background of ongoing conduct, it may seem to you to be unlikely to have occurred. So it is to place it in a more realistic setting, if you accept that it occurred at all.

39 The judge took care to direct the jury as to what they could not use the evidence for. He said that the jury could not use the evidence to reason that, because the accused engaged in such conduct with the complainant, or in the presence of any of the other witnesses, on an occasion other than that for which he was charged, he was the kind of person likely to have engaged in it on a specific occasion for which he was charged. Further, even if the jury accepted the whole or part of the evidence of uncharged acts, that evidence did not of itself prove the offences with which he was charged. Those offences could be proved only by the evidence which related to those counts.

40 Nor - his Honour said - could the accused be convicted on any count on the basis that, although the conduct the subject of that count had not been proved beyond reasonable doubt, some other uncharged act alleged by the complainant or any of the other witnesses had occurred. The only purpose for which the jury might use evidence of uncharged acts which it accepted was to determine whether there was an ongoing course of conduct between the accused and the complainant. If so satisfied, the jury might use the fact of that ongoing course of conduct to assist in determining whether to accept the allegations of the complainant in relation to each count.

Ground 2: complainant's evidence of uncharged acts

41 The subject matter of ground 2 is the ruling of the judge pursuant to s 398A(2) to admit the complainant's evidence that she had observed the applicant masturbating on occasions not the subject of a charge. The applicant's contention is that the judge should have declined to admit the evidence. That must mean that the prejudicial effect was such as in the circumstances to outweigh the probative effect of the evidence, to such a degree as to warrant the conclusion that it was unjust to admit it.

42 As noted earlier, the judge ruled that the complainant's evidence of uncharged acts was admissible as relationship evidence. Such evidence was characterised by Callaway JA in R v Grech[16] as 'evidence of extraneous sexual conduct ... admitted solely to establish the relationship between the applicant and [the complainant] as part of the context and setting in which the offences charged were alleged to have occurred'.

43 In ruling on the admissibility of the complainant's evidence, the judge did not express himself in the language of s 398A(2). We have no doubt, however, that his Honour properly directed himself to the relevant inquiry pursuant to s 398A(2).[17] It is clear from the transcript of argument and, in particular, the exchanges between the judge and defence counsel, that the judge directed his mind to the substance of the matter, and was well aware of relevant authorities (to which reference was made). (We consider that to be so in relation to both rulings on the evidence of uncharged acts.) What is notable from the transcript of argument is that experienced defence counsel did not seriously contest the judge's view, first expressed in the course of argument, that this was relationship evidence.

44 In our view, there was no error in the decision to admit the evidence. Its probative value was substantial. Prejudice to the applicant was minimised by the judge directing the jury that they could not use the evidence unless satisfied of it beyond reasonable doubt, and by directing the jury as to the use of the evidence in accordance with Grech. For these reasons ground 2 is not made out.

45 As mentioned we treat ground 3 as relating to the ruling to admit the uncharged act evidence of the friends. Some things can be said about this at the outset. First, if and insofar as ground 3 was intended to comprehend the admission of the complainant's uncharged act evidence, the point is answered by the above discussion concerning ground 2. Secondly, the ground proceeds on a misconception in describing the decision as an exercise of discretion. As we have mentioned, the decision under s 398A(2) is a decision whether to admit, not a discretion to refuse to admit.

46 Thirdly, as discussed above, the judge is to be taken as having decided on admissibility pursuant to s 398A and aware of relevant authorities. So approaching the matter, his Honour concluded in favour of admitting the evidence because it was 'strongly probative of the issues in this trial'. His Honour's ruling was in these terms:

They disclose underlying unity that Justice Eames talks of in R v Rajakaruna. I will provide detailed reasons if required in due course, but I do rule that they are admissible in this case, subject to the appropriate warnings and directions that I will [give] the jury, because the evidence is in my view strongly probative of the issues in this trial. It displays a number of common features with the evidence of the complainant who, in relation to most of the - five of the seven allegations, or factual allegations, that she brings, says that the accused man masturbated in the presence of herself and/or other young girls whilst he was in his back yard, or in his house, and the evidence that has been alluded to and described, in my view, makes it far more probable that that occurred. It is not propensity evidence, it is probability evidence.

To quote Justice of Appeal Eames at p 28 of Rajakaruna:

"Absent collusion, collaboration or other forms of infection, the relationship of time and circumstance, and the nature of the evidence of each complainant, was such as to render the evidence of each as supportive, and in my view strongly supportive, of the evidence of others."

We are not dealing with complainants, we are dealing with witnesses, but the principle is in my view the same. Absent collusion and collaboration, or other infection, the relationship of time and circumstances that the witnesses describe make the witnesses' evidence strongly supportive of the complainant's evidence in this case. If need be I can elaborate on that in due course, but when one reads Rajakaruna, in my view, this evidence is exactly the sort of evidence they were talking about as being admissible.

(The passage which his Honour here ascribed to Eames JA in R v Rajakaruna[18] is in fact a quotation from the judgment of Winneke P in R v Papamitrou.[19])

47 The evidence of the friends was admitted not as relationship evidence but as 'probability evidence', to use the judge's expression. The permissible form of 'probability reasoning' in relation to such evidence was described by Callaway JA in R v DCC:[20]

... [T]he account of a witness is more likely to be true because of the similarities it bears to the independent account of other witnesses and the improbability that, by sheer coincidence, their accounts would be so similar.

As the judge said in his ruling, the evidence of the friends made it more probable that the complainant's allegation of masturbation in the presence of herself and other young girls was correct. This was because, as the judge said, the evidence had 'common features' with the evidence of the complainant who, in relation to five of her seven factual allegations, accused the applicant of masturbation in the presence of herself and other young girls. The evidence of the friends showed the applicant engaging in a pattern of conduct, namely, masturbating in or about his house in the presence of the complainant and other young girls. The evidence enabled probability reasoning of the type mentioned in DCC and was admissible on that basis.[21]

48 It followed, however, that the evidence of the friends was admissible only in proof of the counts which alleged conduct of that kind. The evidence was not admissible in proof of the allegations in counts 1 and 5. The Crown's concession in that respect was correct. The conduct alleged in counts 1 and 5 did not form part of the pattern of conduct described by the friends. Their evidence of uncharged acts was not relevant to a fact in issue on counts 1 and 5 and hence had no probative value on either of those counts.[22] The judge should have directed the jury accordingly. It was the absence of such a direction which led the Crown to make the concession that the verdicts on those counts ought be set aside.

49 That does not, however, affect the conviction on count 2. The uncharged act evidence of the friends had substantial probative value in relation to that count. His Honour's decision to admit the evidence was correct.

50 It is necessary, finally, to make brief mention of the judgment of this Court in R v HG.[23] There are parts of the judgment which, taken in isolation, appear to state in general terms that uncharged act evidence by a non-complainant is not admissible. When the judgment is read in full, however, it is apparent that the Court was not intending to make any such statement of principle but was instead responding to the limited - and incorrect - basis on which the uncharged act evidence had been admitted at the trial.

51 For all of these reasons, the application for leave to appeal against conviction on count 2 is refused.

[1] See further [45]-[49] below.

[2] [1989] HCA 60; (1989) 168 CLR 79.

[3] [1994] HCA 63; (1994) 181 CLR 487.

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

[5] Kilby v R [1973] HCA 30; (1973) 129 CLR 460.

[6] [1998] 3 VR 602.

[7] [2004] VSCA 230; (2004) 11 VR 129, 131 [3].

[8] R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 417 [21] (Winneke P).

[9] [1995] HCA 7; (1995) 182 CLR 461.

[11] [1998] 4 VR 603, 606.

[12] R v TJB [1998] 4 VR 621, 631-2 (Callaway JA).

[13] [1999] VSCA 93; [1999] 2 VR 412, 419 [27].

[14] R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 417-8 [24].

[15] As to which, see now HML v The Queen [2008] HCA 16 [247] (Hayne J).

[16] [1997] 2 VR 601, 614.

[17] See R v VN [2006] VSCA 111; (2006) 15 VR 113, 122-3 [31] (Redlich JA).

[18] [2004] VSCA 114; (2004) 8 VR 340, 359 [82].

[19] [2004] VSCA 12; (2004) 7 VR 375, 390-1 [31].

[20] [2004] VSCA 230; (2004) 11 VR 129, 132 [8].

[21] See R v Best [1998] 4 VR 603, 618 [30] (Callaway JA); R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631, 675-677 (Callaway JA); R v Papamitrou and R v DCC [2004] VSCA 230; (2004) 11 VR 129, 131 (Callaway JA).

[22] Hoch v R [1988] HCA 50; (1988) 165 CLR 292, 301 (Brennan and Dawson JJ); R v Rajakaruna [2004] VSCA 114; (2004) 8 VR 340, 360 [85] and [86] (Eames JA).

[23] [2007] VSCA 55; (2007) 171 A Crim R 55.