R v G A E [2000] VSCA 18

172. I now turn to consider the submissions made in respect of the argued grounds.

177. The first ground that was argued (ground 2) was that the trial miscarried because his Honour refused to sever the presentment. Before the jury was empanelled, counsel for the applicant (not counsel who appeared on this application) applied to his Honour for severance of the presentment. The primary submission was that there should be a severance so that there would be a separate trial in respect of each complainant. The "very strong secondary position" was that the P counts be severed. After hearing argument, his Honour refused the application.

180. Before us, Mr. Tehan who appeared with Mr. Burgess for the applicant, accepted that his Honour was correct in refusing to sever the presentment in relation to the two brothers. He also accepted that there was mutual admissibility of evidence as between the counts relating to those complainants. He contended, however, that his Honour should have severed the P counts principally because there was insufficient similarity between the circumstances relating to those counts and those applicable to the counts involving the two brothers to allow for mutual admissibility of the respective evidence. Mr. Tehan also submitted that, in any event, his Honour failed sufficiently to take into account in exercising his discretion a number of relevant matters by reason of which his decision was vitiated.

183. On the question of the similarity of the relevant evidence that was to be led by the prosecution, his Honour held that it disclosed that the common features of the applicant's conduct involved the preying upon and behaving in a sexually predatory manner towards young boys of families within the parish community. By reason of those common features and the overall pattern of the applicant's behaviour, his Honour was of the opinion that the evidence of each complainant was admissible in respect of the other complainants.

186. A convenient starting point in examining the question of whether his Honour erred in not severing the presentment as is now contended by the applicant, is to see if the evidence of one complainant was admissible in relation to the counts pertaining to the other complainants. As Callaway, J.A. said in R. v. TJB[14]:

"The true position was, [before the 1987 amendments] and remains, that where evidence on one count is admissible on another, there is no point in ordering separate trials: see De Jesus v. R. at 10 per Dawson, J. The prejudice to the accused must usually be borne and mitigated, so far as is possible, by appropriate directions to the jury. The significance of evidence on one count being inadmissible on another count is that it makes it practicable to order separate trials if there is reason to do so. The reason is not the inadmissibility of the evidence but, in the case of sexual offences, the prejudice to the accused coupled with a doubt about the efficacy of any warning against misuse of the evidence".

In other passages of his judgment in that case, his Honour observed, in effect, that the question of severance arises in practice only if the evidence on one count is inadmissible on another[15].

191. I therefore turn to consider first whether the proposed evidence of the two brothers and P respectively was cross-admissible in relation to the relevant counts. It seems clear enough that, for example, the evidence of the applicant's conduct in relation to the P counts would constitute propensity evidence if it were led in respect of the manse counts and vice versa. Such evidence would be admissible under s.398A(2) of the Crimes Act 1958 if it were relevant to the counts in question and the court considered that in all the circumstances it was just to admit it notwithstanding its prejudicial effect. As the President pointed out in R. v. Tektonopoulos[16] in determining whether the evidence of other criminal acts is admissible much depends upon the purpose for which the evidence is being tendered. In this case, the evidence in relation to the P counts, for example, would be tendered in the context of a trial relating to the manse counts involving M and S as "similar fact" evidence to prove the fact that the offences in question have been committed and that the applicant was the one who committed them. The evidence would go to establish the applicant's sexual appetite for the young boys and the improbability of the three complainants making those allegations unless they were true.

194. In determining the issue of the admissibility of such evidence, it is convenient to do so first in the context of the evidence going to the manse counts and the P counts respectively. In other words, would the evidence going to the manse counts be admissible in relation to the P counts and vice versa? Mr. Tehan argued that there was not sufficient similarity in the evidence to make it cross-admissible. More particularly, he contended that the essential similarity in the evidence relating to the two sets of counts was confined to:

- the alleged sexual assault that occurred during the powder rub.

Mr. Tehan agreed in argument that there were other relevant similarities such as the young age of the boys, that they came from families which were parishioners of the applicant and that during the powder rub they and the applicant were in a state of whole or partial undress. But he contended that these were not essential similarities and that in any event, there were material dissimilarities between the two sets of alleged offences. For example:

- the circumstances leading to the boys' visit to the manse were different

- what occurred shortly before and shortly after the powder rub was different as between P and the two brothers

- the powder rub which was applied by the applicant was administered differently to P and to the two brothers.

203. In my view, however, the evidence in relation to the P counts was probative in respect of the manse counts and vice versa. The "underlying unity" of the evidence[17] was such as to make it relevant in respect of both sets of counts. In my view, the relevant similarities include the following:

(a) The applicant used his position as Minister to persuade the parents, who were his parishioners, to allow the boys to stay with him overnight in the manse. In the case of the H family, he was also a regular visitor to their home. In the case of P and his friend, he took them to a film at Geelong and probably used that fact as a stepping stone to persuade the parents to allow the boys to stay with him overnight.

(b) The applicant gave each of the boys a powder rub and in the process, engaged in sexual behaviour towards them.

(c) In each case, the powder rub was administered while the boys were naked or almost naked and while the applicant was in a state of undress.

(d) In each case, the applicant engaged in further sexual behaviour towards the boys.

211. The remaining question is whether in all the circumstances it is just to admit that evidence notwithstanding its prejudicial effect. There is probably little doubt that the applicant would be prejudiced to some extent if the evidence of the applicant's conduct at the manse in relation to the two brothers and in relation to P were admitted in respect of both sets of counts. In my view, however, for reasons already given, its probative value would be significant and would outweigh its prejudicial effect.

214. Thus, it seems to me that the evidence relating to the manse counts would be admissible in respect of the P counts and vice versa.

217. I now turn to consider whether in addition to the evidence relating to the manse counts, the evidence pertaining to the Daylesford and Kyneton counts would also be admissible in relation to the P counts and vice versa. In my view, the Daylesford evidence would be relevant to the P counts. Just as in the case of the manse evidence, the evidence pertaining to the Daylesford counts would go towards establishing the applicant's modus operandi or the special way in which he gained access to young boys from parishioner families. In each case, he procured access to the boys and isolated them from their parents because of his position as Minister of their Church which gave him an elevated moral status in the eyes of those parishioners. In the case of P, for example, he obtained custody of the boy and his friend on a basis connected with his ministry, taking them to the screening of a film at a venue organised by a religious organisation and then back to the manse. This gave the appearance of a Minister looking after the welfare of his parishioners, but in fact it isolated the young boys from their parents for the real purpose of enabling the applicant to satisfy his sexual desires. He engaged in a like pattern of behaviour in respect of the two brothers in relation to the manse counts. Similarly, in relation to the Daylesford counts, he created the appearance that his conduct was part of his function as Minister of their Church, namely, keeping contact with parishioners and looking after the spiritual and general welfare of their children. In this way, he gained access to the two boys in their bedroom, away from their parents on the pretext that he would read them a story or otherwise establish an appropriate relationship with them. He thus gained access to them in circumstances which were not available to others. This alleged conduct in relation to the Kyneton count was the continuation of his earlier conduct with the two brothers and the same considerations apply to it as the other counts. Each of the episodes revealed a contrivance on the part of the applicant to gain access to the children away from their parents for the purpose of satisfying his sexual desires.

220. The next question is whether in all the circumstances, it would be just to admit the P evidence in relation to the counts concerning the two brothers notwithstanding its prejudicial effect. In my view, the probative value of that evidence would outweigh its prejudicial effect and, therefore, it would be just to admit it in respect of all counts pertaining to the two brothers. Perhaps the more difficult question is whether the admission of their evidence not only with respect to the manse counts, but also the Daylesford and Kyneton counts, would be so prejudicial to the applicant that it would not be just to admit it in relation to the P counts. In my view, however, its probative value would outweigh its prejudicial effect. It was conceded by Mr. Tehan that the evidence relating to the Daylesford and Kyneton counts and the evidence which goes to the manse counts was cross-admissible. No doubt that was because the modus operandi of the applicant, for example, in the H family home in securing access to the young boys, was relevant to the manse counts. For like reasons, in my view, such evidence is also relevant to the P counts which were also concerned with the applicant's conduct at the manse.

223. Thus, given that the relevant evidence was cross-admissible, there would be no point in ordering separate trials. Quite the contrary, in the circumstances, there is every reason for not ordering severance. Any order for severance would result in the same evidence being led twice, with no material gain to the applicant; it would only serve to impede the proper and efficient administration of justice.

226. Notwithstanding that the relevant evidence was cross-admissible, the trial judge retained what Callaway, J.A. described in TJB[18] as a "true discretion" under s.372(3) of the Crimes Act, whether to order severance and as his Honour noted in that case[19], an appellate court should review that discretion on the ordinary principles applicable to discretionary decisions in criminal cases. Such a discretion, however, must be exercised having regard to the new provisions in sub-ss.(3AA) and (3AB). Each offence in this case was a "sexual offence" for the purposes of sub-s.(3AA) and there is no suggestion that the counts were not properly joined in the one presentment for the purposes of s.371 of the Crimes Act. It follows that a presumption arose under sub-s.(3AA) that all the counts in the presentment were triable together. That was a factor that the trial judge was required to take into account in exercising his discretion on the question of severance.

229. In R. v. KRA[20], this Court comprising the President, Brooking and Ormiston, JJ.A. said[21] that the statutory amendment reflected the "more pragmatic approach" in R. v. Christou[22], the burden of which was that "severance is a matter for the judge's discretion and that, in exercising it, the judge should bear in mind that jury's can be trusted to heed the judge's directions". Their Honours cited with approval[23] what Lord Taylor of Gosforth said in Christou[24] in relation to the exercise of discretion on the question of severance, namely:

"the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family; on the victims and their families; on press publicity; and importantly, whether directions which the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully. Experience shows ... that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately. Approaching the question of severance, as indicated above, judges will often consider it right to order separate trials. But I reject the argument that either generally or in respect of any class of case, the judge must so order".

234. Mr. Tehan attacked his Honour's exercise of discretion on the severance application by submitting that his Honour failed sufficiently to take into account the following matters, with the result that his discretion miscarried.

(a) There was a large number of counts in the presentment and all but two of them related to the two brothers. Consequently, to lead evidence on the P counts of what the applicant did to them would be highly prejudicial to him. Such prejudice called for severance of the presentment which could have been easily and practically achieved.

(b) There was further prejudice to the applicant from the joinder of the counts because the offences contained sexual behaviour against young boys which would excite revulsion in the minds of the jury.

(c) The nature and extent of the offending in the case of the counts relating to M and S was relevantly different from that in relation to the P counts.

240. In my view, however, this contention is not sustainable. Some of the above points were dealt with during my analysis of Mr. Tehan's principal submission. In any event, they were all put to his Honour by the applicant's counsel in support of his claim that the presentment should be severed and his Honour rejected them. In my view, it is plain that his Honour took them into account in exercising his discretion and no error has been established on his part.

243. For these reasons, it is my view that ground 2 must fail.

247. The second ground of appeal argued by Mr. Tehan was ground 3. Under cover of that ground it was contended on behalf of the applicant that his Honour erred in allowing the prosecution to adduce from M and P evidence of uncharged acts allegedly committed by the applicant in respect of M and J respectively. The defence had available statements of the proposed evidence of the complainants and at the outset of the trial, the applicant's counsel sought a ruling from his Honour that the Crown should not adduce that evidence. The application was rejected by the learned trial judge. Mr. Tehan's principal argument was that, to the extent that this evidence had any probative value, it did not transcend its prejudicial effect and, therefore, should not have been admitted.

250. I turn first to the evidence of uncharged acts given by M. In his evidence-in-chief, he said that during a period of five months or so when the applicant visited the Hs' home, he engaged in sexual conduct towards him in his bedroom (in addition to the conduct which was the subject of the charges) "roughly once per week" amounting "roughly" to 14 or 15 occasions. The uncharged acts consisted of oral sex, masturbation, anal and attempted anal sex. Immediately after that evidence was given, his Honour gave the jury a conventional propensity and separate consideration warning in relation to that evidence[26]. Later, when his Honour charged the jury, he gave them another such warning in respect of the evidence of uncharged acts. His Honour also, at the commencement of his charge, issued a separate consideration direction in respect of the whole of the evidence. It has not been suggested by Mr. Tehan that his Honour's warnings were inadequate.

253. Mr. Tehan's principal submission was that evidence of M as to the applicant's uncharged acts towards him had no or only little probative value which was, in any event, outweighed by its substantial prejudicial effect for the purposes of s.398A(2) of the Crimes Act. Consequently the Crown should not have been permitted to adduce that evidence. Mr. Tehan argued that the primary purpose for which this evidence was adduced was to establish that a sexual relationship or guilty passion existed between the applicant and M. But, he submitted, there was no need to lead evidence of uncharged acts in order to establish this because there was a significant amount of evidence of charged acts of a similar type which were allegedly committed by the applicant over a relatively short period which could have established such a relationship. In other words, evidence of charged acts could have been relied on by the prosecution in this case to found the argument that the applicant had a guilty passion towards M. Consequently, there was no need to introduce evidence of uncharged acts in order to seek to establish that fact. It added very little to the evidence of the charged acts other than prejudice against the applicant. A further reason advanced by Mr. Tehan as to why the evidence of uncharged acts had no or only little probative value was that the evidence related to acts that took place towards the end of the relevant period, most likely after the manse incident. Such acts, so late in the day, submitted Mr. Tehan, had very little probative value.

256. Mr. Tehan further argued that his Honour did not undertake the analysis of the evidence of the uncharged acts for the purpose of determining its probative value. Consequently, it was said, his Honour could not have carried out the relevant comparison for the purpose of s.398A(2) in order to determine whether it was "just" in all the circumstances to admit it.

259. It is clear enough that his Honour was required to consider what was the probative value of that evidence and whether, having regard to its prejudicial effect, it was in all the circumstances just to admit it. As Callaway, J.A. said in TJB[27], s.398A "prescribes a rule that must be satisfied before a particular class of evidence is admissible, not a discretion to exclude evidence that is admissible". A little later, his Honour pointed out that the decision under the section required attention to be focussed on the circumstances relating to the probative value and those which relate to the prejudicial effect of the evidence.

262. In my view, the evidence of M of uncharged acts to which I have referred earlier, did have probative value in the sense that it was relevant to the existence of the applicant's sexual passion for M and thereby placed the charged sexual acts of the applicant with him in their proper context. Furthermore, it went to explain why no complaints were made by M about the applicant's behaviour towards him. In this case, there is no reason why the Crown should have been confined to evidence of charged acts for the purpose of establishing such a relationship as was contended for by Mr. Tehan. It obviously could not be assumed that the jury would necessarily accept all the evidence of the charged acts. Consequently, it was appropriate for the Crown to lead evidence of uncharged acts for the purpose of establishing the matters referred to. It will be recalled that the applicant denied engaging in any sexual conduct with any of the complainants and claimed that it was inherently unlikely that he would have done so bearing in mind that there was an ever present risk of being caught out by the parents had he engaged in it. The door to the bedroom was always open when he was with the boys and the parents were within earshot and only a short distance away in the loungeroom or the kitchen and it was not unknown for the father to come into the bedroom unannounced.

265. Mr. Tehan's submission that the probative value of that evidence was diminished by the fact that the uncharged acts occurred late in the relevant period is, in my view, without foundation. The evidence of M makes it fairly clear that the uncharged acts occurred broadly during the same period during which the charged acts took place.

268. I now turn to deal briefly with Mr. Tehan's submission that his Honour did not analyse the extent of the probative value of the evidence of the uncharged acts committed on M. In my view, having regard to what his Honour said in his ruling on the admissibility of that evidence and his recognition that a propensity and separate consideration warning was required in relation to it, it is clear that he was very much alive to the need to assess the probative value of that evidence for the purposes of s.398A(2) and that he did just that. His Honour said in the course of his ruling that he had read TJB and Best where the requirements of s.398A(2) are discussed by Callaway, J.A., particularly in Best, including the requirement that the probative value of the propensity evidence is to be balanced against its prejudicial effect. In his ruling, his Honour concluded that the evidence was relevant to the question of the relationship between the applicant and M and that it placed in context the allegations as to the charged offences. In my view, it seems clear enough that his Honour recognised that in order for the evidence to be admissible, it had to be of such probative value as to make it "just" for it to be admitted notwithstanding its prejudicial effect.

271. In any event, even if his Honour did not consider in as much depth as he should have the extent of the probative value of the evidence of the uncharged acts (and there is no basis for so concluding), in my view, it was "just" in all the circumstances to have that evidence admitted within the meaning of s.398A(2). For reasons I have given earlier, that evidence did have probative value and any prejudicial effect that it may have had, was contained by the propensity and separate consideration warnings given by his Honour on the two occasions which I have identified earlier, the adequacy of which was not challenged by Mr. Tehan.

274. In the circumstances, therefore, I am of the opinion that his Honour did not err in ruling that the evidence of M as to the applicant's uncharged acts was admissible.

277. I am also of the view that the evidence of P as to what the applicant did to J in the manse, which was not the subject of objection, was admissible. That evidence was part of the description of the one set of events which involved the applicant's relevant conduct.

280. Consequently, it is my view that this ground of appeal must fail.

284. The next ground of appeal that was argued by Mr. Tehan was ground 5 which was concerned with the claim that his Honour wrongly permitted the Crown to change the basis of its case after the jury had retired to consider their verdict and that this resulted in a miscarriage of justice. In essence, it was submitted that at all relevant times a principal basis of the prosecution case was that the relevant offending acts were committed during identified episodes which occurred in a sequential order within the period specified in the presentment. The Crown had, so it was claimed, undertaken the burden of establishing that each of the offences with which the applicant was charged, was committed during an identified episode, but by his re-direction, the trial judge effectively permitted the Crown to press the case that the applicant could be convicted whenever the offending conduct took place during the period specified in the presentment. It was submitted by Mr. Tehan that such a case was fundamentally different from the one which the Crown sought to prove at the trial. As I understood him, Mr. Tehan contended that counts which were affected by this re-direction were counts 3, 8 and 9. I propose to analyse Mr. Tehan's submissions on the basis that the changes affected only those counts. Lest I have misunderstood his submissions and he has contended that the changes affected all the counts in the presentment, my conclusions in relation to the three counts which I have mentioned, apply equally to all the other counts.

287. It is necessary to explain briefly, the context in which this issue arose. As I have mentioned at the outset, counts 1 to 12 allege sexual misconduct by the applicant with M in his Daylesford home during the period which is specified in the presentment as being between 2 March and 20 August 1981. Nearly all the counts in the presentment describe the alleged offences as having taken place between those dates "on an occasion other than that referred to [in other counts which alleged similar offences]" (emphasis added). It is self-evident that the word "occasion" as used in the presentment seeks to distinguish between the offence that was the subject of one count and similar offences which are the subject of another count or other counts. The particulars of each count contain a brief summary of the act which is said to constitute the offence and, notwithstanding that they state that the commencement of the relevant period is 1 March 1981 (which I assume is a typographical error and the intended date was 2 March 1981) the period in the particulars during which it is said that the offences took place, is the same as that stated in the presentment. Thus, neither the presentment nor the particulars alleged in respect of any count that the offending conduct occurred on any particular day (or during any particular episode). But the particulars go on to refer to, and thereby incorporate by reference, a paragraph of the statement of the relevant complainant (which was to be the basis of his evidence). The statement describes the sexual acts performed by the applicant with the complainant in the context of sequential episodes during each of which, it is said, a number of such acts were committed. Thus, in respect of each alleged offence, the witness describes in his statement the circumstances which took place and, importantly for present purposes, the episode during which it occurred (thereby distinguishing the charged act from any uncharged acts of a similar nature about which M, for example, gave evidence). In order to illustrate these matters, I set out by way of example the terms of the presentment relating to count 9 and the particulars provided in relation to it.

"Count 9: AND the Director of Public Prosecutions further presents that [GAE] at Daylesford in the said State on a date between the 2nd March 1981 and 20th August 1981 on an occasion other than that referred to in Count 4 took part in an act of sexual penetration with [M] a person who was above the age of ten years but under the age of sixteen years and to whom [GAE] was not married in that he introduced his penis into the anus of [M]."

The particulars in relation to that count were in the following terms:

"At Daylesford between 1.3.1981 [sic] and 20.8.81, [GAE] inserted his penis into the anus of [M] (11 yrs old). Ref.. [M] statement 1. Page 8. Para 1."

The relevant wording of the part of M's statement was in the following terms:

"Before he did that, he tried to put his penis into my anus. He did this by lifting my left leg slightly up and then pushed his penis into my anus. He could only get the tip of his penis in my anus. This caused great pain. He continued trying to push his penis further in but he would stop because I think he knew it wouldn't go in, he was too big."

In a previous part of the statement it is made clear that this conduct took place during the third episode. According to M's statement the sexual acts which are the subject of counts 3 to 7, were committed during the second episode in early March 1981. The acts, the subject of counts 8 to 12, were perpetrated during the third episode which occurred approximately two weeks later and before the manse counts. The latter offences took place during the fourth episode.

296. It is convenient to mention at this point that during the trial and, in particular, the evidence of M, the word "occasion" was used to denote the episode during which a number of sexual acts, the subject of various counts, occurred. Bearing in mind that "occasion" was also used in the presentment albeit to convey a different meaning, it is not surprising that, as will be seen later, the jury was confused as to what meaning they should attribute to that word. In order to avoid a similar confusion, I propose to use the word "episode" to denote the incident during which it is alleged the applicant committed a number of sexual offences against the particular complainant.

299. At the trial, M's evidence-in-chief broadly followed his statement except that it did not support the allegations in count 4 (the first alleged act of anal penetration by the applicant of M), count 5 (masturbation) and count 7 (oral rape), in respect of which the applicant was acquitted by direction as I will explain later. Because of the importance for present purposes of counts 3, 8 and 9, it is convenient to mention here that the only counts which alleged that the applicant committed anal penetration of M were counts 4 and 9. Count 12 was concerned with M being forced by the applicant to commit anal penetration of him and in respect of that offence, the jury returned a verdict of not guilty. Counts 3 and 8 were the only counts on the presentment that alleged simulated intercourse with M. It will be recalled that M also gave evidence that the applicant performed on him uncharged sexual acts, approximately once per week for a period of about five months, a total of "roughly" 14 or 15 times including masturbation, oral, anal and attempted anal sex. During the cross-examination of M, it was demonstrated that he had a faulty recollection as to the timing of the offences. He conceded that he was not certain of the order in which some of the sexual acts took place. For example, he agreed that he did not remember during which of the episodes the act of anal penetration took place; he said that it could have been during the second, third, fourth or fifth episode. The witness said that he had a recollection of most of what happened but did not know the order in which it occurred. He was similarly confused about which of the episodes the applicant sought to engage with him in simulated sexual intercourse. He said that it could have been "the third, fourth or fifth" episode. In one sense, given that no complaint was made in relation to the applicant's alleged sexual misconduct towards the complainants until 1997, it is not surprising that the witness could not recall the timing of the events with sufficient precision to identify confidently during which episode the act in question took place. I mention for completeness that S also gave his evidence of the applicant's sexual conduct towards him in the context of identifiable episodes, but no relevant complaint about his evidence was made by Mr. Tehan under cover of this ground.

302. Before the applicant gave evidence, his Honour heard what was in effect a no-case submission made by his counsel in respect of certain counts. In the course of that application the prosecutor identified the evidence on which the Crown relied to establish all the counts other than counts 4, 5 and 7, in respect of which he agreed there was no evidence. The applicant's counsel then successfully submitted to his Honour that there was also no, or no sufficient, evidence for count 21 to go to the jury. In the result, the judge directed the jury to acquit the applicant in respect of counts 4, 5, 7 and 21 and later, a similar direction was given to the jury in respect of count 24. Thus, by the time the applicant gave evidence there was only one allegation that he had committed an act of anal penetration of M (count 9) and two allegations of simulated intercourse with M (counts 3 and 8).

305. In the final addresses of counsel and in the judge's charge, little attention was paid to when the offending conduct, particularly that which was the subject of counts 3, 8 and 9, took place. This may be unsurprising given the large number of alleged acts involved and the other issues that were required to be dealt with in the addresses and the charge. The prosecutor's final address was relatively short and the bulk of it was taken up with examining issues such as the credibility of the witnesses and the likelihood of the offending acts having taken place. Towards the end of his address, the prosecutor summarised the (remaining) offences with which the applicant was charged and the evidence that related to them and in that context, told the jury that the subject of count 3 occurred on "the second occasion that [M] gave evidence about" and that counts 8 and 9 related to "the third occasion that [M] referred as remembering particular sexual acts". Thus, the Crown was still putting the case that the relevant acts occurred during the corresponding episodes. A considerable part of the final address of counsel for the applicant was spent dealing with issues of onus and standard of proof, the credit of witnesses and the inherent improbability of the applicant committing the alleged acts in the bedroom of the two brothers. But he did not, in the course of that address, seek to contend that the Crown has not made out its case because it had failed to establish that the counts in question occurred during the period nominated by the complainant. Moreover, counsel did not seek to rely on M's admissions in cross-examination that he could not recall in which episode the particular offending occurred.

308. In his charge, the learned trial judge explained to the jury, inter alia, the elements of each (remaining) offence which was alleged against the applicant and then, in effect, read to them the evidence of the charged acts that related to each count but he did not do so in terms of episodes during which each of the charged acts was supposed to have taken place. As I have mentioned previously, his Honour also dealt with the evidence of M as to uncharged acts and again, he gave the jury a propensity and separate consideration warning in relation to that evidence. His Honour also reminded them of the admission by M during cross-examination that he could not be sure during which episode the anal intercourse took place. He was certain that the applicant committed the acts about which he had given evidence but he could not be "exact [about] what things ... took place on what occasion". No issue is taken with this direction.

311. The jury retired to consider their verdict not long before midday on 22 March 1999. At approximately mid-morning of the following day the jury asked that there be read to them the evidence which related to counts 3, 8, 9 11, 24, 27 and 28. As a consequence, it was discovered that there was no evidence to support count 24 and a verdict of acquittal was directed in relation to it. Later, they asked that the applicant's evidence of M and S as to their overnight stay at the manse be read to them. In response to this request both counsel furnished to his Honour the passages in the transcript which they agreed constituted the evidence that was sought by the jury and accordingly, his Honour read those passages to them later that day. Again, that evidence related specifically to each count and no suggestion was made that the Crown had to establish as part of its case that the alleged act occurred during any particular episode. Not long thereafter, shortly before they were due to conclude their deliberations for that day, they informed his Honour that they wished to ask another question which they put to him in the following terms:

"Your Honour, could you please explain/clarify the meaning of `occasion' in the particulars of offence. For instance, is it essential that we satisfy ourselves as to what particular occasion, that is, first, second , third, et cetera, that the alleged acts occurred?"

The jury were then effectively discharged for that day. It is common ground that the reference in the question to "particulars of offence" was a reference to the presentment (a copy of which had been provided to the jury) and it seems clear enough that the first part of the question, reflected the jury's confusion as to the meaning they should attribute to the word "occasion". That there was some confusion about it was unsurprising given, as I have mentioned earlier, that it was given one meaning in the presentment and another at the trial, particularly during the cross-examination of M.

316. After hearing submissions from counsel as to what should be the appropriate response to the jury's question, his Honour accepted the prosecutor's submission on that issue (which differed from that which had been proposed by him earlier) and, over the objection of the applicant's counsel who contended that the re-direction proposed by the prosecutor amounted to a fundamental change in the Crown case and would lead to problems including ambiguity of verdict, answered the question at 11.35 a.m. on 24 March 1999, in these terms:

"I would seek to answer that question in this way. During the evidence of [M] and [S], each - particularly [M] - used the word "occasion" or "occasions" in the context of whether something took place on the first, second, third, et cetera, occasion. That word "occasion" was used in the sense of "episode". Each witness gave evidence of sexual acts taking place during a particular episode of sexual activity. The use of the word "occasion" in the presentment has a meaning different to that of "episode". The word "occasion", as used in the presentment, is so used to distinguish that alleged act from another act, whether that other act was in the same episode or not. In respect of Count 3, as I understand it, the Crown case is that that count relates to the first time such an act of rubbing his, the accused man's penis, on or near the bottom of [M] occurred, whatever episode it took place in, and as to Count 8, I understand that the Crown case is that Count 8 refers to the second time such type of act, that is the rubbing by the accused man of his penis on or near the bottom of [M], Count 8 refers to the second time such type of act occurred, no matter which episode it occurred in. Count 9 refers to the first time that the accused man committed, as alleged, anal sex upon or with [M], no matter which episode, whether the third, fourth or fifth episode of sexual activity that alleged act occurred in. If you, the jury, is satisfied beyond reasonable doubt that the particular act took place between the specified dates, then the jury is entitled to find the accused man guilty of that particular count you are then considering."

320. The jury, through its foreman, then asked his Honour that there be read out to them the evidence of M in relation to the powder rub incident at the manse. Again, counsel agreed as to which parts of the transcript should be read to the jury in satisfaction of their request and his Honour accordingly read out that evidence to the jury at approximately 12.11 p.m. on that day. The jury retired to their room at 12.23 p.m. and at 1.08 p.m. returned a verdict of guilty in relation to counts 1-3, 6, 8, 9, 10, 11, 15, 17-20, 22, 23, 25-27 and not guilty on counts 12-14, 16 and 28. (I have mentioned the times when the jury asked their question, and delivered their verdicts because, as I will explain later, Mr. Tehan sought to rely on those times as supporting his contention that the jury probably convicted the applicant on the evidence of uncharged acts.)

323. Mr. Tehan submitted that his Honour's answer to the jury constituted a re-direction by him which, in the circumstances, amounted to a miscarriage of justice. He made the following points in support of that submission.

(a) Through the re-direction, the Crown changed the basis of its case almost at the end of the trial. Cases such as King v. R[28] and R. v. GAS[29] show that there is a fundamental rule that the Crown should not be permitted to make a material change to its case particularly at a late stage. In this case the changes were material and should not have been allowed at the late stage of the trial.

(b) The applicant was prejudiced by the re-direction in that -

(i) it produced lack of certainty as to the case that he had to meet;

(ii) there was a real risk that it would lead the jury to act on the evidence of uncharged acts and might also lead to lack of unanimity in their verdicts;

(iii) the re-direction was productive of uncertainty in the verdicts for the purpose of the possible plea of autrefois convict or autrefois acquit.

331. There is little doubt that the re-direction put the Crown's case in a different way to that which was presented by it up to that point in time. But in my view, it did not bring about a fundamental or material change to its case. First, the Crown continued to rely on the same acts as constituting the particular offence. In respect of count 9, for example, the prosecution continued to rely on M's evidence of the circumstances in which he said the (only) act of anal penetration took place. There was no other evidence of anal penetration by the applicant other than his general evidence that in the course of uncharged acts the applicant committed "anal" penetration on him. But such evidence lacked any specificity. The only evidence which dealt with the circumstances in which such anal penetration occurred was M's evidence (of the act which constituted the offence charged by count 9). The relevant point for present purposes is that the Crown at no stage relied in respect of count 9 on any act of anal penetration by the applicant other than the one described with some specificity by M. Secondly, the Crown's principal contention that the relevant acts took place during the period specified in the presentment and the particulars, did not change. Thirdly, although the prosecution led evidence of the applicant's sexual misconduct by reference to sequential episodes, it was not an essential element of the offence or of the Crown case that any particular act occurred during any particular episode. The applicant's counsel, in effect, recognised that it was not an essential element of the Crown case that the offending conduct occurred during a particular episode. As I have mentioned previously, he did not contend in his final address to the jury that, because M conceded in cross-examination that the act of anal penetration by the applicant may have occurred during any one of the episodes, they could not be satisfied beyond reasonable doubt that the prosecution had made out its case.

334. Furthermore, although the re-direction essentially reflected the prosecutor's submission as to how the jury's question should be answered by his Honour, the submission was made not so much to bring about a change to a fundamental aspect of the Crown case, but to avoid a potentially latent ambiguity in the presentment and associated problems that might arise from his Honour's then proposed answer. The prosecutor's initial submission that his Honour should answer the jury's question merely by explaining to them the different ways in which "occasion" was used in the presentment and then at the trial, did not find favour with his Honour. Rather, his Honour considered an alternative answer, namely, telling the jury that provided they were satisfied beyond reasonable doubt that the offending act which related to a particular count was committed within the period of the presentment, they could find the applicant guilty of it even if they were not satisfied that it occurred during any particular episode. It was at that point that the prosecutor expressed concern that if the issue were put to the jury in that way and bearing in mind the concession of M in cross-examination, there was a risk that in the circumstances, this may be productive of a latent ambiguity in the presentment, the risk of the jury relying on evidence of uncharged acts to convict the applicant and uncertainty of the verdict. All these vices were present in S v. R[30], with the result that the trial had miscarried. In order to overcome these potential difficulties, the prosecutor in effect elected in respect of count 9, for example, that the first act of anal penetration by the applicant of M would constitute the offending conduct for the purposes of that count and in respect of counts 3 and 8, the first and second acts respectively of simulated sexual intercourse by the applicant would amount to the offending conduct for the purposes of those counts, thereby giving specificity to the act which was to be the subject of each relevant count (to the exclusion of other like acts). Thus, the re-direction reflected the election by the Crown as to which offending act of the applicant was to constitute the relevant count. It was not sought for the purpose of belatedly altering the Crown case given the concessions by M in cross-examination.

337. But however one may characterise the re-direction in terms of bringing about a change in the prosecution case, that change was not of the same magnitude as occurred in King v. R. or in R. v. GAS on which Mr. Tehan relied. In both those cases, the change brought about through a re-direction by the trial judge added at a very late stage in the trial, a new basis on which the jury could convict the accused and the accused was thereby denied the opportunity so to mould his case through evidence or through the address to the jury or both, as to meet that new basis. In my view, there is no relevant similarity between those cases and the present one. The re-direction in this case did not introduce a second basis on which the applicant might have been convicted so as to produce a material enlargement of the Crown case. Nor was the applicant here denied the opportunity of meeting by evidence, address or otherwise the new basis on which the Crown sought a conviction, as was the situation in the other cases. At most, the re-direction here substituted a new element as to the timing of the offending conduct but the fundamental aspect of the charge, namely, the alleged sexual conduct and the circumstances in which it was committed, was not altered.

340. The real question is whether the re-direction was prejudicial to the applicant in the sense that he was thereby denied a fair trial (see, for example, R. v. Radley[31], which dealt with the amendment of a presentment after the commencement of trial). There was no suggestion that the re-direction worked an embarrassment to the applicant in the presentation of his case. That is not surprising bearing in mind the way in which he put his defence which was a complete denial of any sexual activity with the boys. Thus, the factual contest between the parties revolved around the issue of whether the alleged acts were in fact committed by the applicant. The point in time when that occurred was never an issue and, no doubt for that reason, was not even mentioned by the applicant's counsel in his final address. I therefore turn to consider the three (other) ways in which Mr. Tehan said that his client was prejudiced by the re-direction.

343. In my view, the claim that the re-direction did not provide sufficient particularity and certainty to let the applicant know what case he had to meet, is without foundation. The particulars of the acts referable to each of the counts and which were alleged to have been committed by the applicant, remained unchanged. By specifying that the conduct relating to count 9, for instance, was "the first occasion" on which such an act was committed, merely reflected the prosecutor's selection of "one instance [of such conduct] to the exclusion of others" and thereby provided a sufficient measure of particularity[32]. In Lewis, the applicant was charged with a number of counts in relation to his daughter while she was between 7 and 13 years of age. The prosecution alleged a course of conduct of sexual abuse by the accused and the counts were selected as representative of a series of offences. The particulars of the counts set out the (frequent) circumstances of the accused's particular abuse of his daughter but it was stated that "this count relates to the first occasion of this type of sexual abuse". This Court held that by identifying in the particulars the first occasion of the alleged series of acts to the exclusion of others and electing to prove beyond reasonable doubt that it occurred, the prosecution provided the measure of particularity required to indicate the case the accused had to meet. Tadgell, J.A. (with whom Ormiston and Charles, JJ.A. agreed) said[33] that the fact that "first occasion" might have been at any time within the specified period did not make the count bad or preclude a valid conviction upon it. His Honour pointed out that the reasoning of Dixon, J. in Johnson v. Miller[34] supported the view "that it may be appropriate to identify a transaction by reference to the order of its occurrence in a series, whether or not any other transaction in the series is the subject of a charge". Thus, by specifying the "first occasion" on which the relevant conduct occurred for the purposes of the particular count, the prosecution in this case selected one act to the exclusion of others and in so doing stated definitively which act was to be treated as the subject of the particular count. There is, therefore, in my view, no basis for contending that the re-direction somehow converted a presentment of sufficient particularity to one which was insufficient in that respect. Consequently, no prejudice was suffered in my view by the applicant on that score.

346. It is convenient to deal next with Mr. Tehan's submission that the applicant was prejudiced because the re-direction produced the risk of uncertainty about the jury's verdicts. As Dawson, J. pointed out in S v. R[35], ".. the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit". But once it is concluded, as I have done here, that the presentment does meet the requisite degree of particularity, it almost follows that there is no uncertainty in relation to the jury's verdicts on that presentment. In this case, given the terms of the presentment and the particulars in relation to, say, count 9, and having regard to the election made by the Crown in respect of that count, the conviction on it would relate to the first time that an act of anal penetration was committed by the applicant on him during the specified period. Should the applicant be charged again with a like offence in relation to M during the period in question, it would necessarily have to be an offence which occurred at a second or subsequent occasion. If the Crown, in pressing the subsequent charge, sought to relate it to the first time such an alleged act took place, the applicant would be entitled to plead autrefois convict in answer to it. In this case, given the election made by the prosecution as to the respective acts that constituted the offences charged by the relevant counts and given the terms of the presentment and the particulars, if the applicant were to be charged with the same offences a second time, he would, in my view, be able to plead autrefois convict or autrefois acquit as the case may be in relation to the jury's verdicts in this case.

349. I also cannot accept Mr. Tehan's submission that the re-direction created the risk that the jury would convict the applicant of the relevant counts on M's evidence of uncharged acts to which I have referred earlier. First, it will be recalled that the evidence of uncharged acts was given in the most general terms and contained no specificity as to the circumstances of the sexual misconduct. By way of contrast, M's evidence of the anal penetration of him by the applicant on which the Crown relied in support of count 9, included a description of how the offence was committed. Next, as Tadgell, J.A. said in Lewis[36], in the context of considering whether sufficient particulars of the offence have been provided by the Crown given that evidence of uncharged acts may also be given during the trial, that "once the Crown is tied down to one transaction, to the exclusion of any other, as the subject matter of any one count, appropriate instruction to the jury will provide, so far as provision can be made, for the jury's proper consideration and use of the evidence. The authorities which allow for the admission of evidence of `uncharged acts' must necessarily assume that, in cases where such evidence is given, the jury will be told how they may use it.". His Honour recognised in that passage that an appropriate direction to the jury will contain the risk of impermissible reliance on uncharged acts. It is to be assumed that the jury will follow the judge's directions and use the evidence of the uncharged acts accordingly[37]. In this case, the trial judge charged the jury so as to relate the evidence of the charged acts to each relevant count and he gave them two warnings as to the use of evidence of uncharged acts. It is readily apparent that the jury in this case approached their responsibilities seriously as is evidenced by the number and scope of the questions which they wanted answered by his Honour in the course of their deliberations. In my view, their behaviour showed that they fully participated in the trial as judges of the facts and fully appreciated that they were bound by the judge's directions to them on issues such as the limited way in which they could use the evidence of uncharged acts. Given all the circumstances, it is most unlikely that the re-direction would have caused them to disregard the judge's two relevant warnings and instead, with the result that they relied improperly on the evidence of uncharged acts in order to convict the applicant. Thus, in my view, there is no basis for contending that the re-direction created the risk that the jury would act on evidence of uncharged acts.

352. Mr. Tehan also submitted that the re-direction left open the possibility that the convictions in relation to the counts in question were recorded on the basis that some jurors were satisfied that the offending act occurred during one episode while others were satisfied that it took place at another point in time. Mr. Tehan argued that the question that was posed by the jury made it apparent that some members of it must not have been satisfied that the act in question necessarily occurred during the episode initially contended for by the complainants (and the Crown). His point was that the jury's question highlighted that there was no unanimity amongst its members as to the occasion on which the relevant act was performed. As Dawson, J. pointed out in S v. R[38], the lack of unanimity in relation to the verdict or an inability by the jury to identify any particular occasion when the offence occurred, was fatal to the verdict of guilty. His Honour said:

"[In the context of that case] it is theoretically possible that individual jurors identified different occasions as constituting the relevant offences so that there was no unanimity in relation to their verdict. That, of course, would be unacceptable, but it is more likely that the jury reached their verdict without identifying any particular occasions. Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions. As I have indicated, such a result is tantamount to their having convicted the applicant, not in relation to identifiable offences, but only upon the basis of a general disposition on his part to commit offences of the kind charged".

356. In my view, the jury's question did not necessarily reflect that some members concluded that the offence occurred otherwise than during the identified episode. It might be that some jurors were, at that point, not certain that the act took place on the day of the episode. But it is also possible that there was merely a disagreement amongst them as to whether they could convict unless they were unanimous that the relevant act took place during the particular episode and that no concluded view had been reached by them as to whether it did or did not so take place. Be that as it may, the jury were told by his Honour on two occasions that their verdict had to be unanimous. On the second occasion they were reminded of that obligation after there was an unauthorised communication on that issue between the jury foreman and his Honour's tipstaff to which further reference will be made later. For the moment, however, the relevance of that point is that given the circumstances in which the jury was reminded by his Honour for the second time on the issue of unanimity, it is unlikely that they would have forgotten or disregarded that obligation. Thus, again taking count 9 as an example, given their verdict, it can be fairly assumed that the jury were unanimous in their conclusion that the applicant did commit the act of anal penetration on M in the circumstances described by M. Similarly, assuming that the jury were mindful of their obligation to be unanimous and given the terms of the re-direction, it can also be fairly concluded that they were unanimous that the act charged by count 9 took place the very first time that the applicant committed an anal penetration of M. The jury might well have been so satisfied without necessarily concluding in which episode that act occurred. It was sufficient, given the re-direction, that they were unanimous that it did occur and that the first time it took place constituted the offence charged by count 9. Thus, there was the requisite degree of unanimity amongst the jurors and there was sufficient identification of the particular occasion when the act occurred for the verdicts not to fall foul of the requirements stipulated by Dawson, J. on those issues.

359. I mention for completeness that Mr. Tehan contended, as I understood him, that the short time that had elapsed between the jury's question being answered by his Honour and their verdicts, was an indication that they most probably acted on evidence of uncharged acts to convict him (or that they brought in a verdict that lacked unanimity or both). Mr. Tehan argued that once the jury felt it was not constrained to find that the offence occurred within the nominated period before they could convict the applicant, it was likely that they had regard to uncharged acts or acts other than those relating to the particular count for the purpose of convicting him. In my view, there is absolutely no basis for this submission. That the jury took a short time after their question was answered is just as consistent with them having regard only to the evidence of charged acts in reaching their verdicts as it is to their having regard to uncharged acts. In any event, Mr. Tehan's contention overlooks the fact that the jury was given relevant directions by his Honour as to the use to which they could put uncharged acts and it is to be assumed that they adhered to those instructions[39].

362. For these reasons, it is my view that the re-direction did not prejudice the applicant and therefore, there was no miscarriage of justice by reason of his Honour's answer to the jury.

366. Mr. Tehan next argued ground 7 in which it is claimed that, because P's mother could not be called as a witness, his Honour erred in allowing the Crown to adduce evidence from P that he made a complaint to her on the day following his overnight stay at the manse as to what transpired there. The mother had died some years before the trial commenced. Mr. Tehan submitted that it was a condition of the admission of the complaint that the recipient of it be called and in support of this contention he relied on what the Privy Council said in R. v. White[40] which, he claimed, was inconsistent with the decision of this Court on this point in R. v. J (No.2)[41]. He submitted that R. v. J (No.2) was wrongly decided and that the decision of the Privy Council in White should be followed.

369. In R. v. J (No.2)[42], this Court considered the question whether in the case of a sexual offence, the prosecution can lead evidence of recent complaint by the victim without calling the person to whom the complaint was made. After examining the principles and the authorities relevant to this question, the President and Charles, J.A. (with whom Callaway, J.A. agreed) concluded[43] that since evidence that no complaint was made by the complainant about the alleged sexual offence was admissible upon the issue of credibility, so also the evidence of an early complaint by the complainant can be admitted as going to the complainant's credit. Their Honours went on to say this[44]:

"The complaint does not amount to corroboration of the complainant's evidence and is not evidence of the facts stated in the complaint. But it is the fact that the victim has not complained which is said to be destructive of the evidence given by the victim and usually part of the evidence of any recent complaint necessary to rebut that `presumption' will be given by the complainant. In our view it cannot be correct that the complainant should be prevented from giving that evidence because, for example, the person to whom the complaint was made has died, cannot be found, has forgotten what was said, is a hostile witness, did not hear the complaint when made, or now denies that the victim made the alleged complaint. The fact that the victim's evidence as to complaint is unsupported will, in the absence of an acceptable explanation, clearly go to the weight of the evidence of complaint; but in our view the evidence of either the complainant or the recipient is admissible although, as we have said, ordinarily that evidence would be corroborated by the other party to the communication also giving evidence of that fact."

In coming to this conclusion, their Honours rejected[45] the contrary view that was expressed by the Court of Appeal in New Zealand in R. v. Kincaid[46], namely, that evidence by the victim of having made a recent complaint is not admissible unless there is independent confirmation in what she said. In particular, their Honours disagreed with the conclusion of Casey, J. in that case (who gave the judgment of the Court) who said[47] that, without independent confirmation of the complaint, the victim's own evidence-in-chief that a complaint was made by her "takes the jury nowhere in deciding whether she is worthy of belief".

374. In White, the victim complained separately to five persons not long after she was allegedly raped by the accused. None of those persons was called to give evidence and the trial judge did not direct the jury as to the use of it other than to tell them that it did not corroborate her evidence. The Privy Council held that the complainant's evidence of the five complaints, each being to the effect that she told the person "what happened", was evidence of previous self-consistent statements and was therefore not admissible to show her consistency or to negative consent (neither of which was relied on by the Crown as a ground for admitting the evidence[48]) and could not be taken into account in assessing her credibility because the persons to whom the complaints had been made had not been called to give evidence. In that context, their Lordships cited with apparent approval[49] the passage from the judgment of Casey, J. in R. v. Kincaid to which I have referred earlier and which found no favour with this Court in R. v. J (No.2).

377. White is obviously not binding on this Court and in my respectful view, the reasoning in R. v. J (No.2) is to be preferred. Even if we were minded to overturn R. v. J. (No.2) (which we are not), we could not do so given the composition of the Court. Moreover, in disposing of the application by the unsuccessful applicant in R. v. J (No.2) for special leave to appeal to the High Court, Brennan, C.J. said:

"The question which the applicant seeks to raise in this application for special leave to appeal is whether the evidence of recent complaint by a complainant in the trial of an accused charged with sexual offences is admissible if the person to whom she made the complaint is not called. That evidence was admissible to forestall any interference that might have been drawn adversely to the credit of the complainant if she had not complained. The appeal would not succeed and therefore special leave is refused."

381. It follows, therefore, that Mr. Tehan's submission that the evidence of what P told his mother was inadmissible, should be rejected.

384. For completeness, I mention that Mr. Tehan argued that in any event, little or no weight should have been given to the complaint because the mother was not called and his Honour should have so charged the jury, but failed to do so. But his Honour was not asked to give such a direction to the jury and no objection was taken to his charge on the basis that no such direction was given. Moreover, it was a matter for the jury to decide whether to accept the evidence of P as to his complaint and if so, what weight they should give it.

391. The applicant's fourth ground of appeal which was argued next, sought to impugn the decision of the trial judge not to discharge the jury after they had an improper communication with his Honour's tipstaff in the course of which he incorrectly told them that they could properly bring in a majority verdict.

394. The circumstances giving rise to this ground were as follows. At 11.15 a.m. on 22 March 1999 the jury retired to consider their verdict. At approximately 3 p.m. on that day, his Honour's tipstaff was asked by the foreman of the jury whether "they had to have a majority verdict. They couldn't have, for instance ... six find him guilty and six find him not guilty". Instead of declining to discuss the matter and referring the foreman's query directly to his Honour to be dealt with in open court, the tipstaff endeavoured to answer the question, incorrectly as it turned out, by stating that it was his understanding that the relevant direction given by his Honour was that only a majority verdict was required. In fact, his Honour had told the jury that unless he directed them otherwise (and he might not do so), they must proceed in their deliberations on the basis that their verdict had to be unanimous. Upon being made aware of the unauthorised communication approximately 20 to 30 minutes after it occurred, his Honour immediately reconvened the court in the absence of the jury and disclosed the circumstances of the communication to the parties. At that time, the tipstaff gave unsworn evidence as to the extent and substance of his discussion with the foreman and the parties were invited to make submissions in respect of it.

397. Counsel for the applicant sought a discharge of the jury on the basis that they had been deliberating under a misunderstanding or false premise for approximately 30 to 40 minutes. His Honour refused the application. He formed the view that in the circumstances of the case, the irregularity could be corrected by an immediate direction from him. He thereupon recalled the jury and told them that any verdict that they may return had to be unanimous. He also told them of the impropriety of the tipstaff's communication. On the afternoon of the second day of the jury's deliberations, the applicant's counsel renewed his application for the discharge of the jury on the basis of his concern that the time that the jury were taking in their deliberations might indicate some oppression of a minority of the jurors by the majority. The application was again rejected by his Honour.

400. It was submitted by Mr. Tehan that any unauthorised communication between the jury and an officer of the Court is to be regarded as a serious infringement of the right of an accused person to a fair trial. In the circumstances of this case, so it was said, there was an unauthorised communication on a matter of substance which could not be cured by a direction. At one stage, he conceded that if the irregularity was such that it could be cured, his Honour's direction achieved that end. Mr. Tehan contended, however, that the irregularity was material; it went to the root of the proceeding and was capable of affecting its outcome. Hence, it was said to be incapable of correction by his Honour. Mr. Tehan also argued that the asking of the question by the foreman on behalf of the jury showed that some of them differed from the others on matters going to the guilt or otherwise of the applicant. The direction by his Honour, so it was submitted, would have inhibited them (and did inhibit them) from pursuing their views. Given that the verdict ended up being unanimous, the direction must have forced them to join in a compromised verdict. Thus, it was said, the irregularity could not have been remedied in the circumstances of the case.

403. The entitlement to a fair trial includes the right to have all matters pertaining to the trial considered in the presence of the accused and in open court and that principle underlies the rule which prohibits communication between the staff of the trial judge and the jury in relation to matters pertaining to the trial during its course, particularly when the jury has retired to consider its verdict[50]. The same principle precludes private communications between the judge and the jury[51]. In a slightly different, but nevertheless relevant, context, Gleeson, C.J. with whom James and Ireland, JJ. agreed, said in Minarowska & Koziol v. R.[52] that there was no absolute rule that any form of communication between a juror and a person associated with the prosecution will necessarily abort the trial. Each case had to be considered on its merits. In my view, the same consideration applies to the present case.

406. Where there is an unauthorised communication with the jury during the trial, the question whether their verdict will be allowed to stand notwithstanding that irregularity, will depend on whether the communication was such as to give rise to a reasonable suspicion or concern about the fairness of the trial[53]. Such concern will more readily arise if there is a reasonable prospect that the communication influenced the jury in some relevant way to arrive at the verdict of guilty, particularly if the irregularity is only discovered after the verdict[54].

409. There are, of course, other reasons why an irregular communication with the jury might be said to give rise to an apprehension that the accused has been denied a fair trial, such as where a court officer effectively interferes with the jury's consideration of the issues, as occurred in R. v. Davis[55] which is discussed briefly in R. v. Lamb[56]. There is no suggestion, however, that there was such an interference with the jury's function in the present case.

412. In R. v. Lamb, on which Mr. Tehan relied to show that the irregularity was material because the communication took place in secret, the clerk of the court, on the instruction of the judge, went into the jury room and informed the jury that they must continue to reach a unanimous verdict. He did this after the jury sent a message to the judge through a bailiff that they could not reach a unanimous verdict. They did this after their retirement and before the two hours had elapsed (after which a majority verdict might have been possible). It was held that what the clerk of court did amounted to a material procedural irregularity, but that in the circumstances, including the fact that when the events were made known to counsel before the jury finally returned to deliver their verdict and no application was made for the jury to be discharged, no miscarriage of justice had occurred and the verdict was allowed to stand. As Callaway, J.A. noted during argument, Lamb did not decide that the irregularity, albeit a material one, went to the root of the proceeding.

415. In cases such as R. v. Willmont[57]; Jackson & Le Gros v. R. and R. v. Briffa & Portillo[58] there was a reasonable apprehension that the unauthorised communication may have relevantly influenced the jury in reaching the verdict of guilty. In these cases, the communication was discovered after the verdict was delivered. On the other hand, an example of a case where there was no reasonable possibility of the jury being influenced and convicting the accused by the communication from the court officer, is Arnold v. R[59], where the only communication consisted of the confirmation that the verdict of the jury must be unanimous, which was the law in Western Australia.

418. Here, there was no realistic prospect of the jury being relevantly influenced by the communication that took place between its foreman and the tipstaff. It is not suggested that he told the jury anything about the merits of the case. Nor did he exert pressure on them to expedite their deliberations. Further, the matter was dealt with in open court very shortly after the irregularity appeared and the applicant's counsel was heard on the issue.

421. In any event, the confusion which may have been present in the minds of some of the jurors on the question of the need for unanimity during the period before their foreman spoke with the tipstaff, was not of his doing. The misapprehension which the tipstaff generated in their minds by telling them that their verdict need not be unanimous, lasted for only half an hour or so before his Honour corrected the situation. There is nothing that occurred during that period which could be said to have adversely affected the interests of the applicant. Even if one assumes that some jurors held a different view about what the verdict should be from that of the majority, there is no basis for contending, as Mr. Tehan did, that his Honour's second direction as to the need for unanimity somehow would have overborne or did overbear the minority and cause them to join in a compromise verdict. What his Honour told the jury on that occasion merely confirmed his first direction to them on this point; they were obliged at all relevant times to reach a unanimous verdict, which they ultimately did.

424. In these circumstances, in my view, there is no basis in the present case for contending that the tipstaff's irregular communication with the jury has given rise to a reasonable concern that the applicant did not, by reason of that communication, receive a fair trial and consequently, the irregularity was curable. In the circumstances it was cured and his Honour made no error in not discharging the jury because of that unauthorised communication.

427. Looked at in another way, as a matter of common sense, the irregularity did not materially affect the conduct of the trial by his Honour. The subject matter of the communication did not relate to any relevant matter that the jury had to consider for the purpose of reaching their verdict. The end result was that there was transparency. Nothing was withheld from the applicant or his advisers prior to the jury returning the verdict. More particularly, the irregularity was disclosed and vented very shortly after it occurred and the applicant was heard in open court. There was only, as a best case scenario for the applicant, 40 minutes or so between the unauthorised communication and the correction of it by his Honour. In those circumstances, no miscarriage of justice occurred.

430. For these reasons, it is my view that this ground fails.

434. The last ground that was argued by Mr. Tehan (ground 1) involved the claim that the verdicts of guilty relating to a number of the counts were unsafe and unsatisfactory in the sense that on the assessment of the evidence in relation to the relevant counts, the Court should conclude that its nature and quality was such that the jury, even if properly instructed, were bound to entertain a reasonable doubt as to the guilt of the applicant[60]. Mr. Tehan first submitted that the verdicts of guilty in respect of the manse counts were unsafe and unsatisfactory. He contended that each of M and S gave a materially different account of the one event or set of events, namely, as to what took place between the applicant and the boys at the manse. Consequently, it was said, the jury could not have safely convicted the applicant upon those counts. It is true that, as Mr. Tehan enumerated, the evidence given by each of the two boys as to the details of what the applicant did with them and of the surrounding circumstances, differed markedly in many respects. For instance, they differed as to whether they were given a bubble bath or shower; as to who dried them; where the applicant was when they were bathing; whether they slept together in a double bed or separate bedrooms and whether the applicant was naked when he engaged in the offending conduct. The jury acquitted the applicant in relation to two of the three manse counts relating to M, namely, counts 13 and 14, but convicted him of count 15 (involving the powder rub). In relation to the manse counts that concerned S (counts 16-20) the applicant was acquitted only on count 16.

437. For the reasons I have given earlier, it is my view that the jury in this case took their responsibilities seriously and properly performed the role of judges of the facts. It is fairly apparent from their verdicts that they preferred the version of events at the manse that was given by S over that given by M. In my view, such a conclusion was fairly open to them. Their rejection in part of M's evidence in preference to that of S does not make their verdicts unsafe and unsatisfactory.

440. Mr. Tehan also contended that the convictions of the applicant upon the Daylesford counts were also unsafe and unsatisfactory having regard to what he called the extraordinary nature of the allegations pertaining to those counts. The essential argument was that it was inherently improbable that the applicant would have engaged in such conduct given that the door of the boys' bedroom was always open, the parents were a short distance away and within earshot and that there was always the risk of the father coming into the bedroom unannounced as had in fact occurred. Mr. Tehan also pointed to the fact that there was little supporting evidence for M and S from their brother D and that their mother was not called. At one stage, Mr. Tehan contended that the light was usually on in the bedroom when the applicant was with the boys, but in my view, the overwhelming evidence was to the contrary.

443. The contention that it was inherently improbable that the applicant would have committed the alleged offences given the obvious risks involved may be, at best, a powerful argument, but it is no more than that and in any event, it is by no means so overwhelming that it could not be reasonably rejected in favour of the view that the evidence showed beyond reasonable doubt that notwithstanding the apparent risks, the applicant was prepared to engage in the offending conduct. In my view, it was fairly open to the jury to accept the evidence of M and S as to the applicant's conduct in their bedroom. The fact that the complainants' mother was not called was, at best, a comment that was arguably available to the defence. As to D, he was not always in the bedroom when the relevant events occurred or if he was, his bed was in such a position that he could not properly see the applicant if he was on one of the bunks.

446. Mr. Tehan also argued, albeit faintly, that the jury's verdicts in relation to the P counts were unsafe and unsatisfactory having regard to, inter alia, the fact that J was not called, that there were differences between P's evidence and his statement and P's lack of real complaints to his father on the following day. That J was not called was explicable by the fact that he lived in Japan and the other matters put forward by Mr. Tehan in support of this aspect of his case were prototype jury matters and it was for them to decide whether to accept those arguments or the evidence of P.

449. Thus, notwithstanding the points made by Mr. Tehan in support of this ground, in my view, the jury were not bound to entertain a reasonable doubt as to the guilt of the applicant upon the relevant counts.

453. For these reasons, it is my view, that this application should be refused.

[1] [1997] 1 V.R. 391.

[2] [1986] HCA 59; (1986) 161 C.L.R. 423 at 432 per Dawson, J.

[3] (1973) 58 Cr.App.R. 540 at 545-6.

[5] [1988] HCA 6; (1988) 164 C.L.R. 365 at 372-373. See also Glennon v. R. [1994] HCA 7; (1994) 179 C.L.R. 1 at 8 and Krakouer v. R. [1998] HCA 43; (1998) 194 C.L.R. 202 at [23].

[6] Mr. Tehan accepted that the judge was correct in refusing the application so far as M and S were concerned.

[7] [1992] SASC 3638; (1992) 58 S.A.S.R. 501, esp. at 503.

[8] (1993) 30 N.S.W.L.R. 510, esp. at 516.

[9] Shortly to be reported, Court of Appeal, 15th November 1995 at 10-13.

[10] [1997] 2 V.R. 609.

[11] R. v. Best [1998] 4 V.R. 603 passim but esp. at 616.

[12] R. v. Best at 611 line 45 - 612 line 29.

[13] Reference was also made in the charge to cross-examination.

[14] [1998] 4 V.R. 621 at 626.

[16] [1999] V.S.C.A. 93 at [24]-[25].

[17] R. v. Tektonopoulos at [30]; R_. v. D_ [1999] V.S.C.A. 148 at [49] - [53].

[20] [1999] V.S.C.A. 157.

[22] [1997] A.C. 117.

[26] in accordance with R. v. Best [1998] 4 V.R. 603 at 615; R. v. J (No.2) [1998] 3 V.R. 602 at 639-640 and R. v. Grech [1997] 2 V.R. 609 at 614.

[28] [1986] HCA 59; (1986) 161 C.L.R. 423.

[29] [1998] 3 V.R. 862.

[30] [1989] HCA 66; (1989) 168 C.L.R. 266.

[31] (1973) 58 Cr.App.R. 394 at 403.

[32] see Tadgell, J.A. in D.P.P. v. His Honour Judge G.D. Lewis [1997] 1 V.R. 391 at 398.

[34] [1937] HCA 77; (1937) 59 C.L.R. 467, particularly at 486ff.

[37] see, for example, the passage from Christou which is reproduced above. See also Webb & Hay v. R. [1994] HCA 30; (1994) 181 C.L.R. 41 at 55-56 and R. v. KRA at [20].

[39] see, for example, Tadgell, J.A. in Lewis, at 400.

[40] [1998] UKPC 38; [1999] 1 A.C. 210.

[46] [1991] 2 N.Z.L.R. 1.

[50] Jackson & Le Gros v. R. [1995] 1 Qd.R. 547 at 550.

[51] Ramstead v. R. [1999] 2 A.C. 92 at 97.

[52] (1995) 83 A.Crim.R. 78 at 83.

[53] R. v. Chaouk [1986] VicRp 70; [1986] V.R. 707 at 712 per Kaye, J.

[54] Chaouk at 715 per Fullagar, J.; Jackson & Le Gros v. R. at 551.

[55] (1960) 44 Cr.App.R. 135.

[56] (1974) 59 Cr.App.R. 196 at 199-200.

[57] (1914) 10 Cr.App.R. 173.

[58] Unreported, Court of Appeal, Supreme Court of Victoria, 21 April 1997.

[59] (1946) 48 W.A.L.R. 83.

[60] R. v. NRC [1999] V.S.C.A. 184 at [38]; M v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 493.