R v G A M [2003] VSCA 185

Ms. K. Robertson, Solicitor for Public Prosecutions

2. The applicant, G.A.M. (to whom I will refer as "the applicant"), stood for trial in the County Court at Shepparton in February 2002 on a presentment containing seven counts of sexually interfering with his step-daughter (to whom I will refer as "the complainant"). The offending alleged was said to have occurred during a six month period between 13 July 1999 and 5 January 2000 (at which time the complainant was 13 years old) in the house at Seymour where the applicant lived with his wife, the complainant and two other children of the marriage between the applicant and his wife.

5. In December 2001, the matter of the applicant's trial had been called on, in Shepparton, before another County Court judge. Preliminary argument in respect of certain procedural matters had been made to the judge on that occasion with a view to obtaining her rulings. Those rulings were given, but the further trial was postponed until February of the following year. At the commencement of that trial, it was agreed between the parties that the rulings made by the judge in December 2001 should be adopted for the purposes of the trial. Those rulings were as follows:

(a) A refusal of an application made by, or on behalf of, the applicant's mother pursuant to s.400 of the Crimes Act 1958 - namely that she be excused from giving evidence upon her son's trial.

(b) An application to sever counts 6 and 7 on the presentment (offences alleged to have occurred upon 5 January 2000) from other counts on the presentment was refused.

(c) An application, in the event that severance was refused, to exclude evidence of "recent complaint" in respect of counts 6 and 7 was refused.

(d) An application to exclude evidence of "uncharged acts" was allowed.

11. As I have indicated, the trial of the applicant took place at Shepparton before a judge and jury between 21 February 2000 and 27 February, 2000. The thrust of the complainant's evidence was that she was sexually interfered with by the applicant on four separate occasions at the house in Seymour where they lived. The four occasions, giving rise to the counts on the presentment, were as follows:

(a) It was alleged by the complainant that on the day which she could identify only as being between 13 July and Show Day in September, the applicant had called her into the shed at the rear of the house. She went to the shed as she was beckoned to do. She was wearing a pair of black jeans and a white long sleeved T-shirt. She said that when she went into the shed the applicant was there. He said to her "Have a look at this", at which he unzipped his fly and "thrust his penis" at her. This constituted count 1 on the presentment, a count of wilfully committing an indecent act in the presence of the child. According to the complainant, the applicant then asked her to step onto the top of a "catcher" of a lawn mower. He helped her up into a position where her back was against the wall facing him. He then undid her pants and pulled them down and commenced to lick her vagina. According to the complainant, the licking was:

to which the complainant said that she did not, pulled up her pants and underwear and went back inside the house. This was count 2 on the presentment which alleged an act of "sexual penetration" of a person "whom he knew to be his step-child". The act of penetration was alleged to be the "introduction of the tongue into the vagina".

(b) On a day alleged to have been in October/November 1999, the complainant alleged that she was in the laundry at the back of the house when the applicant came in and commenced to feel her breasts. She said that she was wearing her pyjamas and underpants and thought that the time was "about mid-day". She said that he continued to play with her breasts for about two minutes and was "playing with my nipples". This was count 3 on the presentment, a count of indecent assault. She said that he then put his hands inside her pyjamas and "played with my clitoris". She said that he was "using his index finger and rubbing it backwards and forwards". At this time her back was to him. She said the events lasted for "a couple of minutes" and finished when he "took his hand out of my pants and then going into another room of the house". This was count 4 on the presentment which again alleged a count of sexual penetration of the applicant's step-child.

(c) The next assault alleged by the complainant was alleged to have occurred on a day shortly before Christmas 1999. These events were alleged to have occurred at approximately 11.30 p.m. when the complainant's mother and her sisters had gone to bed. She said that she and the applicant were decorating the Christmas tree. She said that she had walked "one way around the Christmas tree, and he walked the other, and as we met in the middle he would try and touch the outside of my pyjama pants". She said that she then went and sat on the lounge room floor to watch the television, and he came and sat behind her and commenced to play with the outside of her pyjama pants and her crotch area. She then said that "he decided to put his hand in my underwear and play with my clitoris again". He did this with his index finger and did it for "just a couple of minutes". When asked to elaborate as to where he was touching her with his index finger, she said "in my clitoris". This ended when she asked him to stop it, and he said "No" but asked her "wait a couple of minutes" which she did. According to the complainant she then went to bed. The complainant said that the applicant said to her that he:

"Just liked to do it and he reckoned that he wanted to see me get all tingled up inside."

These were the events constituting count 5 on the presentment; again a count of incest.

(d) The final counts on the presentment (counts 6 and 7) arose from events that happened in the early hours of the morning of 5 January 2000. The complainant said that she was asleep in bed when she was aware of someone entering the bed. She turned her head and saw the accused lying behind her wearing his dressing gown. He commenced to play with her crotch area over her pyjamas. She told him to stop it but he continued to touch her over her pyjamas for "a couple of seconds" but then ended up "going through the pyjamas and through my underwear". Again she said that he put his right hand "through my pyjama pants and my underwear and started playing with my clitoris again". This went on for "just a couple of minutes" when he took her pyjama pants and her underwear and pulled them down just over her knees to the ankles. The events to which I have just referred were charged in count 6 as an indecent assault. The complainant said that, after the applicant had taken down her pyjama pants and underwear, he "got his penis and tried to stick it up my bottom". She said that she was:

"lying there, facing the wall, thinking of what I should do but I couldn't think of anything because I was scared of him and so I just let him do what he did which was to get his penis and stick it between my bottom cheeks and try to push it in but I don't think he got anywhere if I can remember correctly."

She said that she could remember that his penis had gone in "just enough to go around my bottom cheeks and to make it all sticky". It became sticky, she said, after he had pulled out his penis. The complainant could not remember how long he was in the room. It finished, so she said, when he:

"decided to get out of the bed and told me not to pull up my underwear as it will leave evidence and then I could hear [one of the sisters] making her breakfast."

The complainant said that when the applicant heard this, he:

"opened my bedroom door, coughed to make out that he'd just got out of bed, he went to the toilet and flushed the toilet ...".

These events constituted count 7 on the presentment, which alleged an act of incest; but which were also left to the jury in the alternative as "attempted incest".

32. Shortly after the events of 5 January 2000, the complainant was taken by her parents to Broadmeadows where she was to stay with her grandmother (who was the mother of the applicant). Whilst she was staying with her grandmother on 10 January, the complainant said words to the effect:

"I don't want you to tell anybody else about this Gran, but Dad has been sticking his penis up my bottom."

The grandmother, who gave evidence of such a complaint to her at the trial, immediately made arrangements to have the complainant examined by a local doctor who referred her to a gynaecologist at the Royal Children's Hospital. That gynaecologist gave evidence at the trial to the effect that she had made an examination of the complainant on 14 January 2000. Inter alia, she had found, during the course of the examination, two "superficial abrasions" on what she described as the "anal verge" - i.e. the very entrance to the anus. Those findings, according to the gynaecologist, were "supportive of a history which she had received of attempted penetration with a penis". However, she also agreed that such findings were consistent with severe constipation or "self induced trauma".

37. Although the grandmother was called to give evidence at the trial, and did give evidence to the effect to which I have referred, an application had been made on her behalf at the earlier hearing in December 2001 to be excused from giving evidence against her son on the basis that her actions in exposing the complaint of the applicant's step-daughter to the authorities had destroyed the relationship between the grandmother and the applicant. That application which, as I have said, was made pursuant to s.400 of the Crimes Act was rejected by the judge on the earlier hearing on 13 December 2001. The judge regarded that the interests of the community in obtaining the grandmother's evidence was paramount and outweighed the prospects of further damaging the relationship between the proposed witness and her son. No further application had been made by her or on her behalf to be excused from giving evidence to the judge who presided at the trial in February 2002.

40. Evidence was given at the trial by police officers that, on 14 January 2000, a record of interview had been conducted with the applicant about the events to which I have previously referred; during which he denied absolutely that any such sexual interference with his step-daughter had occurred. Amongst other things, the applicant had told police that there had been an incident where the complainant had slipped off the seat of a bicycle and had hurt herself in the genital area through contact with the cross bar. On that occasion, he said that he had "pulled down her knickers" and asked her to hold the lips of her vagina open whilst he inspected the damage. He also volunteered that at various times the step-daughter had complained of having a sore vagina which, according to the applicant, was caused through her "not wiping herself properly". There was, or were, an occasion or occasions, where he had gone to the toilet, got a tissue, and cleaned her up. He said that his wife did not "like looking at female genitalia". He conceded that on the Wednesday following the complaint he had done two and a half loads of washing, which he had taken from the laundry and from the bedrooms of the girls. He also conceded that his wife had been through the complainant's cupboard for the purposes of cleaning up the room, but he did not know why. He said, however, that his wife had found a bag with rotten school lunches in it in the complainant's room. He told the police that he had not "stripped" the complainant's bed, because this was normally done by the girls themselves or his wife.

43. The applicant gave evidence upon the trial in the course of which he repeated his denials of sexually interfering at any time with the complainant. Amongst other things, the applicant said during the course of his evidence that the complainant regularly suffered from constipation in 1999 and 2000. There was lengthy cross-examination of the applicant in the course of which a number of discrepancies between his evidence-in-chief and answers given to the police during the course of the interview were exposed.

46. Following the closure of the evidence, and counsels' addresses, the judge gave what seem to me to have been full and fair directions to the jury outlining the elements of the various offences, the issues between the parties and the evidence relevant to those issues. No exceptions were taken to the charge. Ultimately, the jury returned convictions on counts 1 to 6 and guilty of the alternative to count 7; namely "attempted incest".

50. On 30 September 2003 the Registrar gave leave to the applicant to substitute the following grounds of appeal:

(1) The verdicts of the jury were unsafe and unsatisfactory;

(2) Because the evidence of [the complainant] was uncorroborated and because she disclaimed independent memory of many of the events of which she gave evidence, the learned trial judge erred in failing to provide a Longman warning to the jury;

(3) The learned trial judge failed to satisfy himself that [the applicant's mother] was aware of her right to apply for an exemption from giving evidence pursuant to s.400 (6) of the Crimes Act 1958 and thereby caused a miscarriage of justice;

(4) The learned trial judge erred in permitting the Crown to rely on lies alleged to have been told by the applicant to the police, ... left as evidence of consciousness of guilt when the lies alleged were incapable of constituting an independent item of evidence indicative of guilt;

(5) The learned trial judge erred in directing the jury that they were entitled to ask whether [the complainant] had a motive to lie in assessing her credibility in circumstances where neither the Crown nor the defence had raised the issue before the jury;

(6) The learned trial judge erred in failing to direct the jury that no inference adverse to the applicant could be drawn from the finding that the applicant's wife had lied in her evidence.

56. Mr. Silbert, who appeared for the applicant in this Court, addressed argument on these grounds in the following order; namely grounds (4), (5) and (6), followed by ground (3) and then grounds (1) and (2) together. At the outset of his argument, he quite frankly acknowledged that grounds (2), (5) and (6) (together with one aspect of ground (4)) alleged deficiencies in the charge to which no exception whatever had been taken by counsel at the trial. In this respect, it is appropriate that I should note that these grounds were permitted by the Registrar to be substituted less than a month before the appeal; thus depriving the trial judge the opportunity of commenting upon them in his report furnished to the Court pursuant to the Criminal Appeal Rules. At least one of these grounds (namely ground (5)) was the subject of discussion between counsel and the judge at the trial, during the course of which trial counsel for the applicant asked for the direction, now impugned, to be given. I have said on previous occasions, and I repeat, that when application to amend grounds is made so late in the piece, it is preferable for the Registrar to refer the application to the Court which hears the appeal. It is also timely to remind counsel of what this Court has regularly said as to the significance to an appeal of the failure by counsel at trial to take exception to the judge's charge. Such cases include R. v. Gallagher[1] and R. v. Wright[2]. Those cases have referred, with approval, to the statements of principle made by Yeldham, J. in R. v. Tripodina & Anor.[3], and by Wells, J. in R. v. Calides[4]. In the former case, Yeldham, J. said as follows:

"... It is the duty of counsel appearing at the trial to take objection to matters which in their view are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously. This will afford the judge an opportunity ... of considering the propriety of the steps which he has proposed should be taken and of deciding whether or not, in relation to his summing up, there are matters which he should amend or retract, or additional matters which he should put ... . Although it is true ... that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, nonetheless, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done."

"It was pointed out to us that no objection was taken by either counsel to the learned trial judge's summing up. Let me say [at] once that I always attribute great weight to the reaction of counsel at a trial. It is very much their task to monitor the summing up as it progresses, to make notes of matters to which they would wish to invite the learned trial judge's attention, and to be careful to bring forward anything that might possibly lead to a mis-trial. The reason why it is important that they should do this is that if they are left with the impression that the summing up was fair and reasonable and properly balanced, then there is so much the less reason to suppose that there has been a miscarriage of justice, and if the matters hang nicely in the balance, such an attitude by counsel could well be decisive. It is particularly useful and critical where the appeal is concerned with the discussion of evidence, with inferences, with the presentation of a defence, with all matters in debate with which a jury is closely concerned, and which show themselves, by the general course of the trial and the structure of the issues developed at it."

63. Counsel who appeared at the trial on behalf of the applicant was an experienced counsel in the criminal jurisdiction. At the end of the judge's summing up she expressed herself to be satisfied with the content of that summing up. So did the prosecutor who also was experienced in the jurisdiction. Each was obviously absorbed in the trial and their expression of satisfaction at the conclusion of his Honour's directions would indicate to me that neither perceived any unfairness in those directions leading to prejudice towards the accused or the fairness of the trial. Accordingly, I bear those matters in mind when considering the grounds which are now taken on behalf of the applicant asserting misdirection by the learned trial judge.

Ground (4) - Error in leaving "lies" to the jury as evidence of consciousness of guilt

67. It was contended by Mr. Silbert under cover of this ground that a direction which had been given by the trial judge in respect of a submission made by the prosecutor alleging against the applicant the telling of "guilty lies" was erroneous and prejudicial to the trial. It had become apparent from the record of interview made by the applicant to the police that, shortly after he had become aware of the allegations being made against him by the complainant, he had taken a bundle of clothes from, inter alia, the complainant's room and had washed them. The prosecutor had cross-examined the applicant at some length during the course of the trial about these events, suggesting to the applicant that he had done so for the purposes of eliminating incriminating evidence. This cross-examination exposed inconsistencies between the evidence given by the applicant on the trial and his answers given to the police in the record of interview. In the course of reminding the jury about the submissions which had been made by the prosecutor following the conclusion of evidence, his Honour gave to the jury a direction in respect of the Crown's submissions that the applicant had told lies both to the police and when giving evidence about his reasons for washing the clothes. In the course of those directions, his Honour, in essence, told the jury that they could only draw an inference adverse to the applicant (as the Crown had asked them to do) if they were satisfied beyond reasonable doubt that the false statements were made, that they were lies, that the accused knew when he made them that they were untrue, that the only reasonable explanation for telling them emanated from his consciousness of guilt and for no other reason such as a desire to escape unjust or unfounded accusations or other matters. The judge then went on to tell the jury of a number of reasons, consistent with innocence, that might have precipitated the conduct. As I have said, no exception was taken to these directions. It is now put by Mr. Silbert not only that the directions were inappropriate, but that the matter should not have been raised by the prosecutor in the first place. It was submitted by Mr. Silbert that the evidence was incapable of establishing a lie told through consciousness of guilt, and that any such lie could at best go to the applicant's credit. It was put that there was no source independent of the accused which was capable of establishing the lie, and that the direction given was a "half baked Edwards direction"[6]. Mr. Silbert submitted that, because this was a case of "oath against oath", the prosecutor's wrongful conduct and the directions by the judge were capable of tilting the balance of the trial. The judge's directions, it was contended, elevated the matter to the point where it caused a miscarriage of the trial.

70. I am quite unable to accept these submissions; and, furthermore, it seems to me to be too late in the day to be raising the matter in this Court. It is not known to this Court how the prosecutor went to the jury in respect of these matters because the addresses of counsel have not been transcribed. For all this Court knows, there may well have been a basis for the prosecutor advancing to the jury an argument that the discrepancies between the evidence given by the applicant at the trial and the answers which he had given to the police in his record of interview were of such a nature as to demonstrate a consciousness of his guilt. It seems to me that the directions which were given by the judge to the jury in respect of these matters, although given in a general form, went beyond being a "half baked direction" and made it clear to the jury that they could only use those matters against the interests of the accused if they were satisfied beyond reasonable doubt of the elements which the judge put to them. No exception having been taken by counsel either to the form of the prosecutor's address or to the manner in which the judge directed the jury consequently, I cannot be satisfied that either of the matters which were relied upon by the prosecutor or the manner in which the judge directed the jury had caused any miscarriage in the trial.

75. Allied to the arguments in respect of ground (4), were the arguments directed by Mr. Silbert to ground (5); namely directions given by the judge concerning a motive in the complainant "to lie". The impugned directions occurred after the judge had directed the jury about the evidence of "recent complaint" which was related to the events which comprised counts (6) and (7) on the presentment; i.e. the events which concerned the last of the episodes on 5 January 2000 when the applicant was alleged to have entered the bed of the complainant, assaulted her indecently, and then endeavoured to penetrate her per anum. These events were the subject of the specific complaint to the grandmother at the grandmother's house. After giving the jury directions as to how they could, and could not, use this evidence of "recent complaint", his Honour went on:

"Now, as far as this evidence is concerned the defence case is that it was a false complaint. So whilst issue is not taken by the defence that [the complainant] said these words to her grandmother down in Broadmeadows on that day, the defence say that it is simply a false complaint made by [the complainant] to her grandmother. Now, another direction I wish to give you is this, you may legitimately ask yourselves if [the complainant] had a motive to lie in assessing her credibility. But you may not assume that the defendant has to prove that she did have a motive to lie. He does not have to prove anything. It is open for this defendant to put forward a motive, if he wants to, but there is no obligation on him to do so."

Mr. Silbert contended to this Court that there had been no cross-examination of the complainant as to motive and no reason for the trial judge to ask the rhetorical question "Why would the witness lie?". It was put that such a question invited speculation on unproven facts and in the circumstances of the case occasioned a miscarriage of justice.

80. Notwithstanding these submissions, it seemed to me that during the course of the appeal Mr. Silbert was inclined to agree that the cross-examination of the complainant by trial counsel for the applicant had left the question of a motive "hanging in the air". There were in fact two matters raised during the cross-examination of the complainant which tended to suggest that she had a motive to make false allegations against the applicant. The first was that she disliked the applicant for the excessive discipline which he imposed upon her, to the point where she would spend much time away from the applicant's house in Seymour and preferred to live at the house of a friend. She said that she was not happy "at home" and could not get on with either her mother or the applicant. Secondly, it was put to the complainant at the end of cross-examination that she had been distressed when she learned some two to three years before these events happened, that the applicant was not her real father; information that "shattered" her. However, the applicant was not asked, during the course of his evidence, whether he could assign any motive for the complaints made against him. Nor, so far as we have been advised, did the prosecutor suggest in his address to the jury that they might speculate as to why the complainant would lie[7]. As Hunt, C.J. at C.L. said in the case of Uhrig[8], to ask the question "Why would the witness lie?":

"invites the jury to speculate ... to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict. In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case."

84. It was submitted by Mr. Silbert that the direction of the judge to which I have hitherto referred, invited the jury to speculate, adversely to the interests of the applicant. It is that proposition with which I cannot agree. It seems to me that it does the contrary. The judge told the jury, correctly in my view, that they might legitimately ask themselves whether the complainant had a motive to lie in assessing her credibility. That, as it seems to me, is telling them no more than the jury would have done in any event. The critical portion of the judge's direction was his injunction that the applicant does not have to prove any motive which the complainant might have to lie; and that the applicant does not have to prove anything in that regard. The directions were not, as it seems to me, directions which invited the jury to speculate, adversely to the defendant, as to why the complainant would lie about the events of which she was giving evidence. Nor were they directions calculated to reverse the onus of proof. The direction was given at the request of counsel for the defendant who, when asked by the judge whether it was appropriate in the circumstances of this case to give such directions, said:

"I would submit your Honour that it is necessary. I didn't address the jury on the point but [the prosecutor] did obliquely refer to it and there is evidence there from which an inference could be drawn. "

His Honour then put to counsel that the essence of the direction would be that "if a motive was put forward and [the jury] reject it, that they nevertheless cannot therefore assume that because they have rejected the motive that that means the complainant is necessarily telling the truth". The direction which his Honour gave was generally in the terms of the direction requested by defence counsel, and - as I have said - no exception was taken to it. In the circumstances, I am satisfied that no misdirection was given and, in any event, no miscarriage of justice occurred in the circumstances.

Ground (6) - Error in failing to direct the jury that no inference adverse to the applicant could be drawn from the finding that the applicant's wife had lied

90. Under cover of this ground, Mr. Silbert pointed to a passage in the charge where his Honour was doing no more than summing up the arguments which the prosecutor had made to the jury. In the course of doing that he pointed to the contrast which the prosecutor had drawn in respect of the evidence given by the complainant, on the one hand, and her mother (the applicant's wife) on the other. In essence, the contrast to which he pointed was the ability of the complainant to give precise evidence about the sexual acts which she alleged to have occurred but difficulty in remembering peripheral and surrounding circumstances; with the ability of her mother to recall precise dates of peripheral events which, according to the prosecutor's submission, suggested that the mother's evidence was not one of genuine recall. Mr. Silbert submitted that in those circumstances it was incumbent on the trial judge to direct the jury that no inference adverse to the accused could be drawn from the evidence of the mother. There is, in my view, nothing in this ground of appeal. His Honour had made it quite clear during the course of his charge that, before the jury could convict the applicant of any of these counts, they would have to be satisfied beyond reasonable doubt of the accuracy of the evidence of the complainant. His Honour did not invite the jury to draw any inferences relevant to the credibility of the complainant from their lack of satisfaction of the credibility of the complainant's mother as a defence witness. In the long run, as I understood him, Mr. Silbert conceded that he could "not rely heavily" on this ground of appeal. As I have said, there is, in my view, nothing in it.

Ground (3) - Failure by the judge to satisfy himself that the applicant's mother was aware of her right to apply for exemption

94. This ground, in essence, asserts that the trial judge failed to comply with the obligation imposed upon him under s.400 (3) and (6) of the Crimes Act. Relevantly sub-s. (3) requires the presiding judge, in any proceedings against an accused, to exempt (inter alia) the mother of an accused person from giving evidence on behalf of the prosecution:

"if, but only if, he is satisfied upon application made to him in the absence of the jury (if any) that, having regard to all the circumstances of the case, the interest of the community in obtaining the evidence of the proposed witness is outweighed by - (a) the likelihood of damage to the relationship between the accused and the proposed witness; or (b) the harshness of compelling the proposed witness to give evidence; or (c) the combined effect of the matters mentioned in paragraphs (a) and (b)."

In particular, Mr. Silbert asserted that the trial judge had failed to comply in this case with sub-s.(6) of s.400 which provides, so far as relevant:

"Where the ... mother ... of the accused is called as a witness for the prosecution, the presiding judge ... shall satisfy himself that the person so called is aware of ... her right to apply for an exemption pursuant to this section."

100. As I have indicated earlier in these reasons, the applicant's mother had applied to another judge of the County Court when the proceedings against the applicant were first called on in December 2001. The application of the mother of the accused was founded upon the deterioration in the relationship between her and her son as a result of the mother's acceptance of the complaint made by the complainant and the taking of the complainant to the doctor in Seymour. The judge had determined, in the exercise of her discretion, that the interest of the community in obtaining the evidence of the mother outweighed any circumstances personal to her. When the trial commenced before the judge in February 2002, the judge was aware of the rulings made in December 2001, and was informed by the parties that they proposed to act on the basis of such rulings.

103. Mr. Silbert contended that the judge who presided at the proceedings in February 2002 was the "presiding judge" to whom the provisions of s.400 of the Crimes Act referred; and that it was incumbent upon him to satisfy himself in accordance with the provisions of sub-section (6) that the applicant's mother was aware of her right to apply for exemption pursuant to the section as at the date of the commencement of those proceedings. He contended that the judge had failed to so satisfy himself, and that his failure to do so constituted a fundamental irregularity at the trial which could not be overcome by the proviso to s.568(1) of the Crimes Act.

106. There is, in my view, no substance in either of counsel's submissions. Even if I were to assume that the judge who entertained the application on behalf of the witness in December 2001 was not, relevantly, the "presiding judge" to whom s.400(3) of the Crimes Act refers, it must nevertheless be remembered that the discretion conferred upon the trial judge by sub-section (3) is only to be exercised if an application for exemption is made by or on behalf of the witness. The right to apply for an exemption is a right given to the witness and not to the accused[9]. In the events which occurred at the outset of the trial in February 2002, it seems to me that the judge was entitled to be satisfied that the witness was aware of her right to apply for exemption and had elected not to do so. However, even assuming that the judge at the commencement of the trial in February 2002 was required to replicate the process which had been undertaken by the judge in December 2001, there is no basis for the contention that his failure to do so was a fundamental irregularity. In no circumstances can a failure to comply with sub-s.(6) of s.400 be regarded as a fatal flaw going to the root of the proceedings[10].

109. In my view, nothing can be made of a point in respect of s.400 (6) in this case because it is clear from the reading of the transcript that any further application made by the witness before the judge in February 2002 would have been doomed to failure in any event. There was nothing to suggest that any of the circumstances concerning the relationship between her and the applicant had changed in the ensuing two months. So far as that relationship was concerned, the material suggested that the "bridges had been burnt" and whatever relationship had existed between the mother and the applicant had been irrevocably damaged as a consequence of the mother's perfectly appropriate behaviour in reporting the events in the first place. The circumstances which existed in February 2002 were, therefore, no different from the circumstances which existed in December 2001. Clearly, within the meaning of sub-s.(3) of s.400, "all the circumstances of the case" dictated that the interests of the community in obtaining the evidence outweighed circumstances personal to the witness. This ground of appeal must be rejected, both because it has not been demonstrated that the judge was in breach of the obligation imposed by s.400(6) and also because, in the events which occurred, there has been no substantial miscarriage within the meaning of the proviso to s.568(1) of the Crimes Act.

Grounds (1) and (2) - Unsafe and unsatisfactory

113. These two grounds were argued together because ground (2), which alleged a failure to give a "Longman warning" was intertwined with counsel's submission that the jury's verdicts were unsafe. Counsel contended that the case against the applicant at trial rested solely on the evidence of the complainant and was therefore a case of "oath against oath". The nub of the contention on behalf of the applicant in this Court was that the complainant's evidence, as gleaned from the transcript, was replete with concessions of lack of recollection and refreshment of memory by recourse to the statement made by her to the police. These concessions were, so it seems, made during the course of cross-examination of the complainant. That cross-examination reflected a poverty of recollection of events, so it was said, which had occurred about two years before the trial. It was put that in a case like this which was based entirely upon the complainant's evidence, the jury was in no position to evaluate the accuracy and reliability of that evidence, and that therefore the verdicts were unsafe. At the very least, so it was put, the judge should have given a warning to the jury that it would be dangerous to convict on the uncorroborated testimony of the complainant unless after thoroughly scrutinising that evidence, and paying heed to the warning being given, they were convinced of its truth and accuracy[11]. It was submitted that the "overall effect" of the complainant's evidence was that she lacked the requisite memory to give the evidence which she gave, and had attempted to memorise and recite the contents of the statement provided to the police. It was further contended that the evidence of the complainant was "inherently improbable" and that it disclosed that she (i.e. the complainant) was unhappy in the family home and harboured feelings of resentment towards her parents. In these circumstances, so it was put, the complainant's evidence lacked the quality of evidence upon which the jury could safely return the verdicts which it did.

116. The relevant principles of law governing a ground such as this are not in doubt. They were expounded by the High Court in M. v. R.[12] as follows:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations." (Footnotes omitted)

Their Honours went on[13] to state the following proposition:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to experience. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacked credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person is being convicted, then the Court is bound to act and to set aside a verdict based on that evidence." (Footnotes omitted)

122. For my own part, I do not accept that the record of the proceedings portrays the types of inadequacies in the complainant's evidence which would render the verdicts unsafe in the sense explained by the authorities. Those areas in which the complainant professed a lack of recollection were matters peripheral to the events of substance. Thus she professed to have a lack of recollection of specific dates and times, what she was wearing at particular times and where the members of her family were at particular times. Those matters, she candidly conceded, were matters upon which she had refreshed her memory by looking at her police statement. However, she was adamant that she remembered everything that her father "had done to me"; and that those were matters which she could not forget. It seems to me that the transcript reveals that her evidence in respect of the events which were central to the charges was unshakeable and apparently clear. Of course, trial counsel relied upon the complainant's professed lack of recollection as to subsidiary events as indicative of the lack of credit in her testimony as a whole; that was put during her cross-examination of the complainant; and calculated, no doubt, to invite the jury to carefully scrutinize that testimony. It is true that the complainant's evidence was critical to the proof of the prosecution case. The jury were well aware of that. But the significance of the evidence does not, of itself, render it unsafe or unsatisfactory. For my own part, and reading the transcript of the complainant's evidence from this distance, that evidence does not bear the hallmarks of untrustworthiness; or as being of a nature which rendered it incapable of being left to the jury for their consideration. Indeed this was a case (unlike many cases of its kind) where the evidence of both the complainant and the applicant was given and tested in the full gaze of the jury. There are many cases of sexual assaults against children where such an advantage is not given to the jury. Procedural changes in this State, wrought by statute, have led to a situation where evidence-in-chief of complainants is often given by the VATE tape procedure and from a location remote from the court room. In contrast, the procedure adopted in this case left the jury in a sound position to assess and evaluate the whole of the evidence given by the complainant on the one hand and the applicant on the other. In the circumstances, I would reject the proposition that the verdicts returned by the jury were unsafe because of the lack of quality of the complainant's evidence; nor do I accept that this was a case where there was any requirement on the part of the trial judge to give a warning to the jury of the type referred to in Longman v.R.[14]. No such warning was called for by counsel, and in my view the circumstances of this case did not require the judge to give one.

125. During the course of the hearing of the appeal, I suggested to counsel that there was one aspect of the complainant's evidence which had given me initial concern; although it was not a matter which reflected upon her integrity or the "safety" of her evidence. Rather my concern went to the question whether the complainant's evidence had been taken far enough to prove the elements of "penetration" in counts 2, 4 and 5. Those counts alleged "sexual penetration" - count 2 being an allegation of oral penetration, and counts 4 and 5 alleging digital penetration. In each case the complainant gave evidence of the same "general" character; namely that the applicant had "licked" or "played with" "my clitoris". The prosecutor had not sought much by further elaboration of this description of events; and my concern was whether the description so given by the complainant went beyond the commission of an indecent assault to describe an act of incest. That concern was heightened by the fact that, in respect of count 6 which alleged an act of indecent assault, the evidence led in support was in similar form - namely that "he played with my clitoris". It goes without saying that the offence of "penetration" is a far more serious offence than one of indecent assault; a fact reflected in the maximum penalties provided for the respective offences, and indeed reflected in the penalties imposed by the judge in this case.

128. Upon reflection, and having heard the arguments of counsel during the course of the hearing of the appeal, I think the initial concern which I had in respect of this matter was unfounded. A review of the evidence satisfies me that the complainant was not only intending to convey, by her evidence, that legal "penetration" of the vagina (which includes the "external genitalia"; s.35(1) Crimes Act) had occurred, but that she had conveyed that fact by her evidence. Thus, in respect of count 2, when asked to say "in what way he was licking your vagina", the complainant responded "the inside where the clitoris is". Likewise, in respect of count 4, the complainant, when asked how the applicant was "touching your clitoris" responded:

"He was using his index finger and rubbing it backwards and forwards."

Again, in respect of count 5, the complainant had said that the applicant had "decided to put his hand in my underwear and play with my clitoris again". When asked where it was that she actually said he was touching, she replied:

She further went on to remark that the applicant had told her that "he wanted to see me get all tingled up inside".

135. There can be no doubt that the judge accurately instructed the jury as to what was required in the proof of "penetration". Although, in my view, the prosecutor could have done more to elaborate upon the circumstances of the penetration achieved in each of these counts, I am satisfied that the evidence was sufficient to enable the jury to have concluded as it did. The concern which I expressed was, as I have said, heightened by the fact that the allegation of indecent assault in count 6 was proved by evidence of a similar character - namely that "he put his hand through my pyjama pants and my underwear and started playing with my clitoris again". It was those circumstances which made me wonder whether the complainant's use of the term "played with my clitoris" was merely a shorthand expression for something which can either be an indecent assault or a penetration. Counsel for the respondent on the appeal informed the Court that the evidence given at trial in respect of count 6 went beyond the material available to the Crown at the time when the presentment was laid, and that no application was made to amend the particulars of charge in the sixth count.

138. For the reasons which I have explained, I am satisfied that the verdicts on counts 2, 4 and 5 are safe, and properly reflect the commission of the offences alleged. In my view, grounds (1) and (2) must fail. Consequently, the application for leave to appeal against conviction must be rejected.

Application for leave to appeal against Sentence

142. Following a plea in mitigation of sentence, the trial judge sentenced the applicant, on 28 February 2002, as follows:

Count 1 (Indecent act in the presence of a child) - 4 months' imprisonment.

Count 2 (Incest - oral penetration) - 30 months' imprisonment.

Count 3 (Indecent assault) - 9 months' imprisonment.

Count 4 (Incest - digital) - 30 months' imprisonment.

Count 5 (Incest - digital) - 30 months' imprisonment.

Count 6 (Indecent assault) - 12 months' imprisonment.

Count 7 (Attempted incest - anal) - 36 months' imprisonment.

152. His Honour ordered that 15 months of the sentence imposed upon count 2, six months of the sentence imposed upon count 3, 15 months of the sentence imposed upon count 4, 15 months of the sentence imposed upon count 5, six months of the sentence imposed upon count 6 and 20 months of the sentence imposed upon count 7 be served cumulatively upon each other and upon the sentence of four months imposed upon count 1. The total effective sentence resulting from these orders for cumulation was six years and nine months. His Honour fixed a non-parole period of five years and directed that one day of that sentence had already been served. It follows that, at the present time, the applicant has served something like one-and-three quarter years of the sentences which his Honour imposed. His Honour further declared that, in relation to counts 3, 4, 5, 6 and 7 the applicant had been sentenced as a "serious sexual offender" in accordance with the provisions of s.6F of the Sentencing Act 1991. Although the legislation obliged his Honour, when sentencing the applicant as a "serious sexual offender", to regard the protection of the community as the principal purpose for which the sentence was imposed; and was entitled - in order to achieve that purpose - to impose a sentence longer than that proportionate to the gravity of the offence (s.6D Sentencing Act), his Honour did not regard it necessary to do so. The Act also requires a court to cumulate each sentence imposed on a serious sexual offender upon other sentences imposed upon that person, unless otherwise ordered (ss.6E, 16(1A)).

155. The only ground of appeal in relation to these sentences is that they are manifestly excessive. Counsel contended that this was so having regard to the prior good record of the applicant, the limited time span during which the offending had occurred and other relevant circumstances. Those circumstances included his Honour's finding that the applicant was unlikely to re-offend, was currently 44 years of age, had no relevant prior convictions and was a person who, as his Honour found, had had poor educational skills but had "tried to make the best of his life within those limited educational skills and opportunities". His Honour also noted that one of the consequences of the applicant's conduct was that he had been removed from the society of his family, had lost contact with and the support of his mother, and that - although his wife was still supportive of him - he was going to find it difficult to reconnect with the family unit in the future because of the requirements imposed by State authorities. It was counsel's contention that, in the light of all these circumstances, the total sentence imposed of six years and nine months was manifestly disproportionate to the offending.

158. For my own part, I do not think it could be said that the individual sentences imposed for each of the offences of which the applicant was convicted are manifestly excessive. The only thing which appears to be "odd" about those sentences is the fact that the heaviest sentence imposed by his Honour was in respect of count 7, a conviction for "attempted incest", which was a penalty in excess of the penalties imposed for the three counts of incest upon which the applicant was convicted. This, I think, reflects his Honour's view that the attempted anal penetration, which was the subject of the events of 5 January 2000, was a far more serious event than the completed events of incest which appeared to have been treated by his Honour as "low in the scale of a crime of incest". It is further to be noted that, whilst his Honour appears to have taken this general view of the applicant's offending, he has ordered significant cumulation of all sentences following the sentence upon count 1 - i.e. a sentence for indecent act. It is somewhat odd that his Honour structured his sentence by ordering cumulation upon the four months' imprisonment imposed on count 1 - the lowest sentence imposed in respect of an individual count. Such a practice tends to create a distortion in the overall sentence by assigning undeserved primacy to the least serious offence[15]. No doubt this sentencing pattern was influenced by the fact that in respect of most of these counts his Honour was being called upon to sentence the applicant as a "serious sexual offender" within the meaning of the sentencing legislation in this State which, as I have said, requires the judge to cumulate sentences committed by a serious sexual offender unless otherwise directed. Nevertheless, his Honour has cumulated a significant portion of the sentence which he imposed upon count 2, which was not a sentence imposed upon the applicant at a time when he fell to be treated as a "serious sexual offender". However, as I have already said, he did not believe it was necessary to impose a sentence longer than that which was proportionate to the gravity of the offences of which the applicant had been found guilty. He, therefore, said that he would not disregard the principles of totality. It is my view, however, that his Honour has, to an extent, disregarded those principles by the degree of cumulation which he has ordered in respect of the offences committed. I agree wholeheartedly with his Honour that this type of offending is to be abhored; but it could not be ignored that there were in this case four isolated occasions of offending, in respect of three of which two offences were laid. Counts 1, 3 and 6 alleged offences which, to my mind, were a prelude to, and part of, the events which resulted in the act of incest or attempted incest which was the culmination of those events, To cumulate significant portions of each of the sentences imposed, in these circumstances, seems to me to have been an error which has produced a total effective sentence which is out of proportion to the total offending. The cumulation achieved by the method which his Honour adopted amounts to more than 50% of the individual sentences imposed. In my view, the total effective sentence produced in this way is thus demonstrated to be excessive.

161. I would allow the appeal against sentence, affirm the individual sentences imposed by his Honour, but set aside the cumulation orders which his Honour made and substitute the following; I would cumulate six months of the sentence imposed

upon count 2, three months of the sentences imposed upon counts 3 and 6, and nine months of the sentences imposed upon counts 4 and 5 upon each other and upon the sentence of three years which his Honour imposed upon count 7. This will produce a total effective sentence of five years and six months. I would order that the applicant serve a period of three years and nine months before becoming eligible for parole.

172. For the reasons given by the President as to each of the grounds of appeal, I agree that the application for leave to appeal against conviction should be dismissed. As to the contention in ground 1 that the convictions were unsafe and unsatisfactory, I merely add that having read the transcript of the complainant's evidence, in its entirety, and, in addition to the comprehensive summary of evidence with which we were provided, having also read substantial portions of the remaining evidence in the trial, including that of the applicant, I entertain no anxiety about the jury's verdict. Whilst allowance must be made for the fact that I did not see or hear the witness, the transcript, in my opinion, does not demonstrate that the complainant had little or no reliable memory of the events she recounted. Nor does her account ring of improbability, as counsel suggested. To the contrary, the transcript suggests that the complainant was a careful witness, and most likely would have impressed the jury as giving a credible account of the events she described.

175. I also agree with the conclusion of the learned President, and his reasons therefor, that the application for leave to appeal against sentence should be allowed. I agree with the orders for re-sentencing which his Honour has proposed.

[1] [1998] 2 V.R. 671 at 681 per Brooking, J.A.

[2] [1999] VSCA 145; [1999] 3 V.R. 355 at 360-361 per Callaway, J.A.

[3] (1988) 35 A.Crim.R. 183 at 191.

[4] (1983) 34 S.A.S.R. 355 at 359.

[5] [1986] VicRp 64; [1986] V.R. 643 at 661-2.

[6] cf. Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193.

[7] cf. Palmer v. The Queen [1998] HCA 2; (1998) 193 C.L.R. 1 at 7; R. v. F. (1995) 83 A.Crim.R. 502 at 511-2 per Gleeson, C.J. (speaking for the Court of Criminal Appeal of New South Wales); R. v. G. (1994) 1 Qld.R. 540 at 545-6 per Pinkus, J.A.; R. v. E. (1996) 39 N.S.W.L.R. 450 at 464 per Sperling, J.; R. v. Uhrig, unreported, Court of Criminal Appeal New South Wales, 24 October 1996, at pages 15-16 per Hunt, C.J. at C.L.

[9] R. v. Sorby [1986] VicRp 77; [1986] V.R. 753 at 772; R. v. D.J.T. [1998] 4 V.R. 784 at 790 per Brooking, J.A.

[10] cf. R. v. D.J.T. [1998] 4 V.R. 784 at 791-2; D.J.T. v. R. (1999) 73 A.L.J.R. 460 at 460 per McHugh and Gummow, JJ.

[11] cf. Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79.

[12] [1994] HCA 63; (1994) 181 C.L.R. 487 at 493 per Mason, C.J., Deane, Dawson and Toohey, JJ.

[15] cf. R. v. M.D.B. [2003] VSCA 181 at [14] per Batt, J.A.