R v Goss [2007] VSCA 116

8 This is an application for leave to appeal against conviction. On 28 August 2006 a jury found the applicant guilty of nine counts of indecent assault. He was found not guilty of three counts of indecent assault.

Background

9 The evidence before the jury was that the offences in question took place between 1 January 1974 and 22 November 1977. The applicant was then aged between 29 and 33 years of age. The complainant was then aged between 11 and 15 years of age.

10 The complainant gave evidence that during the relevant period she lived in an eastern suburb of Melbourne with her family. Her parents and the applicant and his family were members of a local church group. The two families became close friends, spending Saturday evenings and holiday periods together. The complainant gave evidence that on occasions when her family spent time at the applicant's home she would be put to bed with her sister in the applicant's bedroom whilst her parents watched television or played cards with the applicant and his wife. She said that when she was ten years of age the applicant often played with her and in doing so would grab her breasts and vagina over her outer clothing. These events were not the subject of counts on the presentment but evidence of them was led before the jury as uncharged acts.

Counts 1 to 3

11 The complainant gave evidence that when she was 11 years of age she attended at a local primary school. On one occasion whilst she was in grade six, she left school at the end of the school day. Shortly after leaving school she observed the applicant parked in his white motor vehicle. He offered her a lift home which she accepted. He drove her towards her home but then turned into a dead-end street, drove up a dirt track near the Ringwood Lake and stopped his car. The complainant gave evidence that she asked the applicant why they were there and that the applicant asked her to kiss him. She said she gave him a quick peck. The applicant said, "Not like that, I'll show you how to kiss properly" and he put his hand behind her head and pulled her head towards him and forced his tongue into her mouth. These events were the subject of Count 1 on the presentment. Thereafter the applicant pulled her leg towards him with his right hand and leant over her. He inserted his finger into her vagina. These events were the subject of Count 2 on the presentment. The complainant gave evidence that the applicant then grabbed her right hand and made her feel the area around his penis over his clothing. His penis was erect. These circumstances were the subject of Count 3. The complainant gave evidence that the applicant drove her to a point near her home, but before he left he told her not to tell her mother about what had occurred. The complainant said that the applicant told her that he and her mother were best friends and that if the complainant told her mother it would break up the friendship.

Counts 4 and 5

12 The complainant gave evidence that approximately one week after the incident comprising Counts 1, 2 and 3, the applicant again picked up the complainant after school and drove to the same location as previously. He kissed the complainant by putting his tongue in her mouth and asked her to put her tongue into his mouth. She complied. These circumstances were the subject of Count 4 on the presentment. The complainant gave evidence that the applicant then unzipped his trousers and pulled out his penis with his right hand and started rubbing it. The applicant put his hand behind her head and pushed her head towards his penis until she felt it pressed up against her lips. These circumstances were the subject of Count 5 on the presentment.

Counts 6 and 7

13 When she was 13 years of age the applicant attended the local high school. She walked home from school at the end of each day. She said that often the applicant waited nearby and would ask her to get into his car and then he would drive her to the same location as previously. On the first occasion that he did this he put his fingers into her vagina. This was the subject of Count 7 on the presentment. He also pushed his penis into her mouth, the first occasion of which was the subject of Count 6 on the presentment.

Counts 8 and 9

14 The complainant had braces fitted to her teeth when she was 13 years old in 1976. Every month or so during an 18 month period she would travel to a dentist's surgery in Box Hill. The applicant was employed in Box Hill. The applicant asked her to attend his office which she did on some occasions. When she did so he would ask her to sit on his lap and cuddle her and would insert his finger into her vagina. Count 9 related to the first occasion that he did so at his office in Box Hill. He also inserted his penis into the mouth of the complainant. Count 8 related to the first occasion that this occurred at Box Hill.

15 As stated above, the jury found the applicant not guilty on three counts of indecent assault. These were Counts 10, 11 and 12 on the presentment. The complainant gave evidence that her family and the applicant's family went together on a caravan holiday to Bendigo in March 1977. She was then 14 years of age. She gave evidence that she went to the toilet block in the caravan park at night time. There was a plant room near the toilet block. As she approached the toilet she saw the applicant in the plant room. He pulled her inside the plant room and kissed her, inserting his tongue into her mouth. This allegation was the subject of Count 10 on the presentment. The evidence of the complainant was that the applicant then put his hand down the front of her pajamas and inserted a finger into her vagina. This allegation was the subject of Count 11 on the presentment. He then removed his penis from his pants and rubbed it on the front of her pajamas in her vaginal area. This allegation was the subject of Count 12 on the presentment.

16 In the course of giving evidence in relation to these matters the complainant produced a photograph of herself with her father's handwriting on the back of the photograph stating "Bendigo, March 1977". She said that this was the only occasion that she could recall having gone on holiday to Bendigo. She said it may have been the long weekend holiday in March. In the course of cross-examination the complainant was asked about evidence which she had given at the committal in which she alleged that the applicant had instructed his son, who was then aged 11 or 12 years, to touch her breasts. She stated that at the suggestion of the applicant, his son chased her around the caravan park whilst the applicant referred to her "norks". She stated that both the applicant's wife and her parents were present when this took place and that she perceived that the applicant had regarded it as a joke. The applicant's father was called to give evidence in the prosecution case. He identified the photograph which had been produced by the complainant of herself taken at Bendigo as the photograph that he had taken. He gave evidence that this was one of the holidays that the family had shared with the applicant's family. He said that he had taken his family on holiday to Bendigo on only one occasion.

17 In relation to the allegation made about the behaviour of the applicant at Bendigo, the applicant's wife gave evidence in the defence case. She gave evidence that the family had been on holidays with the complainant's family on a number of occasions but had never been on holidays in Bendigo. She gave evidence that the family did not stay or attend at a caravan park in Bendigo on any occasion in March 1977 and that during the Labour Day long weekend of March 1977 she, the applicant, her son and others had attended the Centenary Test Match in Melbourne on the Monday. She gave evidence that she attended at a local cricket match on the Saturday and Sunday of the long weekend with the applicant and the rest of her family. The son of the applicant, who at that time was aged approximately 10 or 11 years, likewise gave evidence in the defence case. He said that on the Labour Day weekend in March 1977 he had attended the Centenary Test Match with his parents. He said that he had never attended a holiday in Bendigo with the complainant and her family and he denied the suggestion that his father had ever encouraged him to touch the complainant's breasts whilst in Bendigo, or elsewhere.

18 The applicant relies upon five grounds of appeal.

Ground 1 - the learned trial judge erred in failing to give directions of the type discussed in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, adapted to the circumstances of the case.

19 In relation to the evidence of uncharged acts before the jury, the trial judge gave a clear direction to the jury as to the limited use that could be made of such evidence and gave a complete and strong warning against the use of such evidence as evidence of propensity on the part of the applicant. No complaint was made to his Honour by the applicant's counsel at the trial, nor is any complaint made before us about what the jury was told by his Honour in this regard.

20 At the conclusion of his Honour's charge to the jury, however, counsel for the applicant made a complaint that whilst the direction given by the judge in relation to uncharged acts explained properly to the jury how, if they were satisfied of such evidence, they could use the evidence in support of the complainant's evidence as to the relationship between her and the applicant, the direction failed to explain how, if the jury was not satisfied of the evidence, they could use that fact adversely to the credit of the complainant. In this regard, counsel for the applicant referred in particular to the evidence of the complainant that on one occasion during a holiday in Bendigo the applicant had urged his son to grab the complainant on the breast. The son gave evidence in the trial that no such incident had occurred and furthermore, both the son and the applicant's wife gave evidence that they and the applicant did not go on the trip to Bendigo which had been described by the complainant in the course of giving her evidence.

21 The applicant upon this appeal submits that in the circumstances of the case the judge was required to give a direction of the type discussed in The Queen v Markuleski.[7] In that case, in which the accused was indicted on multiple counts of sexual offences, Spigelman CJ said:[8]

"... it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count."

"It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally."

"In some cases, where it is obvious that the witness's reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness's evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything."

24 In the case before us the applicant submits that the judge ought to have given a direction, moulded to the circumstances of the case, to the effect that, whilst each count must be considered separately, if a jury had a reasonable doubt about the complainant's credibility on one or more counts or allegations of uncharged acts, it might be difficult to see how her evidence could be accepted in relation to other counts. The application of a Markuleski direction has been considered in Victoria in R v PMT.[11] In that case, it was contended by the applicant on appeal that such a direction should have been given in circumstances where the applicant had been charged on a number of counts of sexual offences against his daughter. In that case, Buchanan JA said:[12]

"If a warning of the kind required by R v Markuleski is to be given, presumably it should be qualified by directing the jury that a reasonable doubt as to the veracity of a complainant's evidence on one count caused by the manner in which the complainant has given evidence should be taken into account in assessing his or her evidence on another count, but a reasonable doubt on one count produced by signs of possibly faulty or inaccurate recollection or by the existence of a circumstance rendering the commission of the offence less likely does not affect the complainant's truthfulness in respect of other counts. As a matter of logic, the proposed direction should not be limited to potentially casting doubt upon the evidence of a complainant. The rationale for the direction would require a jury to take into account their view that the complainant was truthful in his or her evidence as to one count in evaluating his or her evidence on other counts. Further, it would seem to follow that a jury should also be directed that, if they form a view as to the truthfulness of the evidence of the accused in relation to one or more counts, they are to take that into account in assessing the truthfulness of the accused's evidence generally.

I think it unlikely that a jury given a separate consideration direction will be entirely uninfluenced by the impressions they derive from the evidence of a witness taken as a whole; I doubt that such a natural tendency needs judicial encouragement in the form of a Markuleski direction. Further, I am of the opinion that the proposed direction is likely to promote propensity reasoning and produce confusion rather than assist a jury to properly evaluate the evidence. In my view, in this case it was well within the ability of the jury to assess the evidence of the complainant in the light of their own experience and with the benefit of the addresses of counsel, without the necessity of the warning advocated by counsel for the applicant."

"... the failure to give a direction along the lines suggested by Spigelman CJ in R v Markuleski did not vitiate the trial. I doubt whether the learned Chief Justice sought to lay down an absolute rule that a judge should, where the only evidence of alleged multiple sexual offending is that of the complainant, remind the jury in the charge that, if they entertained a reasonable doubt about the truthfulness or reliability of the complainant on one count, they must take that into account in assessing her other evidence."

26 Nevertheless, his Honour did consider that it will "often be appropriate" to direct a jury along those lines. In my view, however, whilst the possibility that such a direction, appropriately qualified, may be necessary in a particular situation in order to ensure a fair trial, ordinarily, such a course is fraught with difficulties and should be avoided for the reasons given by Buchanan JA.

27 However, the applicant submits that the case now before the Court is a case that required such a direction. First, it is submitted that unlike in PMT, counsel in the present case sought such a direction. Secondly, it is argued that the fact that there was alibi evidence in support of the applicant's defence of Counts 10 to 12, of which he was acquitted, but no such evidence available on the other counts, created the situation where such a direction could have been given without any realistic risk of propensity reasoning adverse to the applicant. Thirdly, it is argued that such a direction should have been linked to a Longman warning. In my view none of these arguments demonstrate that there was a need to give such a direction or are a sound basis for distinguishing the circumstances of this case from those in PMT. Indeed, the circumstance whereby there was alibi evidence before the jury in contradiction of the evidence given by the complainant was undoubtedly a matter used by the jury in their assessment of her reliability and credibility in relation to counts 10, 11 and 12. In my view it defies logic to assume that the jury would not assess the overall credibility of the complainant, and use that assessment to determine the questions of fact which were required to be determined by them in relation to all counts on the presentment. In my view the jury would have been well able to assess the evidence of the complainant by reason of their own experience of life, and with the benefit of the addresses of counsel and the warnings which were given to them by the trial judge without further complication in the form of a Markuleski direction.

Ground 2 - The Longman warning given was inadequate.

28 The events about which the complainant gave evidence were said to have occurred between 1974 and 1977 when she was aged between approximately 11 and 14 years. There was no evidence of any complaint having been made to the authorities or communicated to the applicant until May 2004. The evidence in relation to the commission of the offences consisted solely of that given by the complainant. Counts 1 to 9 concerned allegations which were imprecise as to date whereas Counts 10 to 12 concerned allegations of behaviour on a specific holiday weekend at Bendigo in March 1977. In the course of his charge, and as he was obliged to do, his Honour gave the jury a warning of the Longman[14] type.

29 In dealing with this aspect of the case his Honour said as follows:

"The circumstances of this case are particularly such that it is appropriate for me to give you a particular warning and explain why I give it, and in giving you such a warning I am not merely repeating the arguments of counsel, I am giving you directions in law which you are obliged to follow and implement in your consideration of the evidence in this case. These are directions from the highest court in the land, and in so warning you let me make it clear that the warning is not given because of the sexual nature of the allegations here."

30 His Honour then turned to the issue of corroboration and told the jury that they must approach the evidence of the complainant on the basis that her evidence was uncorroborated. He then said:

"... I direct you that in a case where there is this delay and the lack of corroboration it is dangerous to convict an accused person upon such uncorroborated evidence in circumstances as exist here. You may act upon that evidence and return a verdict of guilty if you see fit to do so, however I emphasise that the law says it would be dangerous to convict the accused on that evidence unless, having scrutinised the evidence with great care, having considered all the circumstances relevant to its evaluation you are satisfied as to its truth and accuracy."

"Now the evidence is that (the complainant) has given evidence about instances of alleged sexual abuse which she said commenced when she was attending primary school in 1974 and which extended to 1977 when she was attending secondary school. Twelve specific counts are alleged on the presentment, and you have heard her allegations of the uncharged acts. So what I as the judge must do is to attempt to emphatically remind you of the context in which you go about your fact-finding role because you, the jury, have to make your own evaluation of the evidence in the light of common human experience. You are expected to bring your good common sense and experience to bear in the assessment of the evidence in this case. However the law requires me to direct you that you must have particular regard to some circumstances which are peculiar to the case. I refer firstly to the delay between the time at which some of the offences are alleged to have occurred and when first reported to police. You will be aware that the complainant's evidence, as a elicited in cross-examination by Mr Russell, was that she made a statement to police on 2 May 2004, and we know that the accused man was arrested on 25 May 2004."

32 His Honour then referred to the evidence of the age of the complainant at the time of the alleged offences and the possibility of "vivid imagination", "fantasy" and of faulty recollection and inaccuracy. He then said:

"I also direct you that after the passage of time people about whom allegations are made tend to lose the means of defending themselves. Had the allegations been made shortly after the alleged event it would have been possible to explore in detail the alleged circumstances surrounding its occurrence and perhaps adduce evidence throwing doubt on the complainant's version or, indeed, confirming the accused's denials. Not that there is any onus of proof upon him. In this case you have heard evidence of an alibi and in any case in which - I will have a little more to say about the actual evidence - but as a matter of law in any case in which it is part of the Crown evidence that the accused was at a particular place at a particular time it is open to the accused to adduce evidence that he was not at that place at that time. Such evidence is called alibi evidence, and the word 'alibi' is Latin and meaning simply elsewhere."

33 His Honour then proceeded to deal with the evidence relating to the alibi and gave directions in relation to that evidence. He then turned in some detail to the evidence given by the complainant under cross-examination. Having done so he said:

"Having reminded you of that evidence and having spoken about the warning, I just round off what I've got to say is - I've spoken about the evidence, what you make about that, and you'll be clear that reminding you of the evidence is reminding you about what you have to assess, but the directions about the warning and the way in which you should approach the evidence are clear directions of law, and I move back to this direction of law, and the circumstances such as I've adverted to, the delay in complaining, which factor has been the subject of argument of counsel, the nature of the allegations; that is allegations of criminal conduct which are not supported by corroborative evidence, the age of the complainant at the relevant time and the problem of potentially faulty recollections all point to the potential for error inherent in evidence of this nature. The warning is to direct your mind to the potential for error, and that's what you must have regard to. I am not saying there is error, it's no part of my task. Questions of the assessment of the evidence are very much for you, but those circumstances highlight the problem from the defence point of view of explaining the matters about and surrounding the alleged offences, not that, I remind you, that there's any onus on the defendant. The delay is a very important feature of the case and the warning that I've given you is really directed to the problems which the defence encounter with the lengthy delay in this matter. So the existence of those matters are such as to require that the trial judge do what I've just done, to give a judicial authority, that these circumstances must be earnestly considered. So just rounding off this part of the charge, these matters mean that to fulfil your duty of fact finding, you must be fully aware of the dangers of convicting on that evidence of the complainant, unless having scrutinised that evidence with great care, you are satisfied of its truth and accuracy. And as I say, whilst fact finding is properly a jury function, and it's the jury obligation to have regard to any comments made by counsel about, or the judge, about matters of fact, it would be wrong for a jury in a case such as this, to ignore what I've said by way of a warning where events are alleged to have occurred some years ago."

34 I have quoted from the charge at length because it demonstrates that his Honour did make it clear on more than one occasion in this part of his charge, that the delay between the date of the allegations and the date of trial caused the applicant forensic disadvantage. Nevertheless the applicant submits that the Longman direction given by the judge was inadequate. The arguments raised on appeal relate to both the structure of the directions given to the jury and to individual phrases used by his Honour in the course of his charge.

35 The particulars provided by the applicant under ground 1 contain four specific complaints as to the Longman warning given by the judge. The first particular is that the judge failed to explain adequately the forensic disadvantage suffered by the applicant in defending the charges in circumstances of delay and lack of specificity as to date and time and to relate these aspects of the warning to the circumstances of the case.

36 No exception was taken nor was any re-direction sought by counsel for the applicant in relation to the Longman warning given by the judge. That is not a matter without significance in the circumstances of this trial which was conducted before his Honour by experienced counsel. It is apparent that the reliability and/or credibility of the complainant lay at the very heart of the issues before the jury. The issues of delay and late complaint were explored in detail in cross-examination and in final addresses. That is not to say that the judge was relieved of the obligation to warn the jury in unmistakeable terms about the consequences of delay upon the capacity of the applicant to conduct his defence. Nevertheless the circumstances in which the trial was conducted and the absence of any exception or request for a re-direction are relevant matters to consider in the determination of whether the warnings which were given by his Honour were adequate in all the circumstances.

37 In respect of the issue of the forensic disadvantage suffered by the applicant, his Honour directed the jury specifically that "had the allegation been made shortly after the alleged event it would have been possible to explore in detail the alleged circumstances surrounding its occurrence and perhaps adduce evidence throwing doubt on the complainant's version or indeed confirming the accused's denial." Later in the charge his Honour pointed out that the circumstances of delay and absence of complaint (which he observed had been the subject of argument of counsel) highlighted "the problem from the defence point of view of explaining the matters about and surrounding the alleged offences." He told the jury that the delay was "a very important feature" of the case and that the warning he had given was directed to the problems which the defence had encountered with the lengthy delay. He then said that the existence of those matters was such as to require the trial judge to give judicial authority to the fact that those circumstances "must be earnestly considered". He then went on to say that having noted the comments and warnings it was open to a jury to convict after careful scrutiny of all the evidence, bearing in mind the difficulty for the defence, and bearing in mind the onus of proof and the absolute necessity of being satisfied of the accused man's guilt beyond reasonable doubt.

38 The second aspect of the first particular upon which the applicant relies in relation to ground 1 is that the judge did not tailor the direction to the circumstances of the case. It is asserted that the particular circumstance that the complainant was specific as to the date of some alleged offences about which the respondent was able to adduce rebuttal alibi evidence, called for a firm judicial direction as to the danger of convicting the respondent on any count on the presentment. It is argued further that the directions did not convey adequately the necessity to pay heed to the warning given by the judge. It is submitted that the words used by the judge that:

"the law says it would be dangerous to convict the accused on that evidence unless, having scrutinized the evidence with great care, having considered all the circumstances relevant to its evaluation you are satisfied as to its truth and accuracy"

were insufficient, and that the judge should have stated additionally that

"the evidence of the complainant could not be adequately tested after the passage of 30 years... "

39 In my view in all the circumstances his Honour did make it clear to the jury that the delay had caused the defendant a forensic disadvantage which they (the jury) were required to consider carefully in all the circumstances. Although it might be said fairly that the direction was somewhat discursive, and that his Honour did not use precisely the words used in Longman, it appears to me to be apparent from the words that he did use, and the context in which he used them, that the jury would have had a full appreciation of the danger of convicting on the evidence of the complainant alone, and without scrutinizing the evidence with great care and paying heed to his Honour's warning. In my view, although more emphatic language would have been desirable, his Honour's direction was sufficient to ensure that the jury understood that the long delay and lack of specification about dates caused the defence forensic disadvantage. Having regard to the full context of what he said, the jury could have been in no doubt about that matter.

40 The second particular under ground 1 is that the judge erred in using the words in the course of his direction that "the warning is to direct your mind to the potential for error". The applicant submits that the use of these words by the judge undermined the strength of the warning in that the issue before the jury was not one of potential for error, but rather the forensic difficulty resulting from the unusually long delay. It is true, as I have said, that the warning given in accordance with Longman was somewhat discursive. I agree that it would have been preferable if the judge had introduced the warning with a clear statement that the warning he was about to give arose because the lapse of time and lack of specificity as to the dates of the alleged offences left the defence with no opportunity to explore the surrounding circumstances of each alleged offence. There is weight, too, in the criticism that the trial judge referred to the "potential for error" inherent in evidence of the nature of that before the jury. His Honour referred to that potential immediately after stating that the circumstances of the case included delay in complaining and after having told the jury that the allegations were not supported by corroborative evidence. He referred also to the age of the complainant at the time of the alleged offences and to the problem of potentially faulty recollection. In referring to the potential for error in this context, it would appear that his Honour relied upon a passage which appears in the judgment of McHugh J in Longman:[15]

"To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony."

That passage makes it clear that the potential for error inherent in the complainant's evidence in circumstances of long delay is one thing and that the lack of opportunity for the defence to explore the surrounding circumstances by reason of the delay is another thing altogether. The applicant contends that the direction given by his Honour did not make this clear.

41 Had his Honour said merely that there was "potential for error" in all the circumstances it would have been a clear mistake.[16] However, when one assesses the overall impact of the warning given in his charge, rather than extracting one phrase from it, it is clear that his Honour did much more than merely point out a potential for error. There is no reason to conclude that the jury were misled by the use of this phrase in the course of his Honour's warning as to the dangers of convicting the applicant on the evidence before the jury.

42 The third particular upon which the applicant relies under ground 1 is that the judge should have told the jury to "pay heed to the warning" when telling them to scrutinize the evidence with great care. The applicant argues that the direction failed to meet the requirements set out in the joint judgment of Brennan, Dawson, and Toohey in Longman v R:[17]

"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."

As to the assertion that his Honour failed to tell the jury that it was only after scrutinizing the evidence with great care and "paying heed to the warning" that they could convict, his Honour used imperative tones on a number of occasions in the course of discussing the issue of delay and unreliability. At the commencement of his warning he stated that he was giving "a particular warning" and he explained that in giving the warning he was not "merely repeating the arguments of counsel". He said:

"I am giving you directions in law which you are obliged to follow and implement in your consideration of the evidence in this case. These are warnings from the highest court in the land, and in so warning you let me make it clear that the warning is not given because of the sexual nature of the allegations here."

"I emphasise that the law says it would be dangerous to convict the accused on the evidence unless, having scrutinized the evidence with great care, having considered all the circumstances relevant to its evaluation, you are satisfied as to its truth and accuracy."

He then referred to the addresses from both counsel as to those matters and said:

"You have heard the debate and you have heard the way counsel have put their cases."

Soon thereafter he referred to the dates on which it was alleged the events in question occurred. He then said:

"However the law requires me to direct you that you must have particular regard to some circumstances which are peculiar to the case. I refer firstly to the delay between the time at which some of the offences occurred and when first reported to police."

Having referred to the age of the complainant and the delay in reporting he said:

"Such made it essential that you consider the affect of the combination of these circumstances upon the memory of the complainant."

"Now after the jury has given the most anxious scrutiny and considered the circumstances relevant to its evaluation and paying heed to the aforesaid warning you may well be satisfied as to its truth and accuracy. It is a matter for you. I also direct you that after the passage of time people about whom allegations are made tend to lose the means of defending themselves. Had the allegation been made shortly after the alleged event it would have been possible to explore in detail the alleged circumstances surrounding its occurrence and perhaps adduce evidence throwing doubt on the complainant's version or, indeed, confirming the accused's denial."

At the conclusion of his direction his Honour repeated that he was giving directions of law about the circumstances of delay, the nature of the allegations, the lack of corroborative evidence, the age of the complainant and the potential for faulty recollections. He finalised the directions by referring to the problems which the defence had encountered with the lengthy delay and said:

"So the existence of those matters are such as to require that the trial judge do what I've just done, to give a judicial authority, that these circumstances must be earnestly considered."

"It would be wrong for a jury in a case such as this, to ignore what I have said by way of a warning where events are alleged to have occurred some years ago."

43 In my view when one considers the entirety of his Honour's directions to the jury there was no chance that they failed to appreciate that they had been directed that it would be dangerous to convict the accused on the evidence unless they scrutinized the evidence and did so in the context of the warning given by him about the forensic disadvantage suffered by the applicant.

44 The final particular under ground 1 upon which the applicant relies relates to a comment made by his Honour in the course of his warning. Having stated that there was no question that the cross-examination of the complainant about her lack of precision of dates and times was legitimate, his Honour went on to say:

"By the same token, the law recognises the difficulty of being precise in situations like this where there are allegations of sexual misconduct occurring many, many years ago [and if] it was not the law that they could come before you in this arguably imprecise way, you would not hear about them. Take on board arguments about lack of precision, but we are dealing here with events that occurred, so the allegation goes, many years ago."

45 It is contended by the applicant that such a statement was erroneous, carrying with it the suggestion that if concessions to imprecision were not made, the sexual abuse that occurred a long time ago would not be disclosed. It is submitted that the statement gave judicial imprimatur to the complainant's imprecision and lack of specificity and was an erroneous direction. It cut across a central part of the applicant's defence that the imprecision of the allegations made by the complainant was such that it should have lead the jury to doubt the complainant's account. Finally, it is submitted that the direction undermined the Longman warning.

46 I accept that it was undesirable for his Honour to have said that if it was not the law that imprecision about dates was permissible, such cases would not come before a jury. However in my view the statement made by his Honour considered within the context of the entire direction did not undermine the strength of the warnings he gave to the jury. In any event it appears to me that it did little more than say what must have been obvious to the jury.

47 I turn now to ground 3.

Ground 3 - the learned trial judge erred in failing to identify which alleged behaviour supported Counts 5, 6 and 8 in failing to give adequate directions on the element of assault and to relate those directions to the evidence.

48 Counts 5, 6 and 8 on the presentment contained allegations that between different dates the applicant unlawfully and indecently assaulted the complainant. In the course of his charge his Honour defined the offence of indecent assault as an intentional, unlawful, application of force however slight, in circumstances of indecency. He said:

"But there has been no real debate here that the conduct which has been alleged amounts to that. You have got to make the judgment, you have got to be satisfied that there was an intentional, not an accidental touching, or any aspect of the behaviour was accidental and that it was in circumstances of indecency."

49 In referring to the evidence before the jury his Honour referred to count 5 as "an incident of oral sex". In relation to count 5 the complainant gave evidence that on an occasion when she was in the car of the applicant he unzipped his trousers and pulled out his penis with his right hand. He then got his other hand behind the head of the complainant and pushed her head towards his penis. She could feel it pressed up against her lips. The applicant told the complainant to open her mouth and he pushed his penis into her mouth. She said she "gagged" as he did so.

50 His Honour also referred to count 6 as an "incident of oral sex". The complainant gave evidence that on an occasion later than that referred to as being the circumstances of count 5, the accused asked her to kiss his penis and "pushed it into" her mouth.

51 His Honour referred to count 8 as being the "incident alleged at Box Hill, a count of oral sex". In relation to count 8 the complainant gave evidence that at his office in Box Hill the applicant asked her to kiss his penis and that he "put" it into her mouth.

52 Accordingly, in relation to each of counts 5, 6 and 8, there was evidence before the jury that the applicant placed his penis into the mouth of the complainant.

53 Before us counsel for the applicant argued that by using the term "oral sex" the trial judge failed to identify precisely which behaviour supported counts 5, 6 and 8. It was argued in relation to count 5 that the complainant gave evidence that the applicant pushed her head towards his penis and that she felt it pressed against her lips and that he then pushed it into her mouth. It was argued before us that the allegation of pushing the complainant's head towards the applicant's penis so that she could feel it pressed up against her lips was by itself an indecent assault. It is submitted that the judge did not identify the behaviour relied upon by the prosecution as the basis for this count. Similar arguments were raised in relation to counts 6 and 8.

54 In my view there is no substance in this argument. His Honour defined indecent assault. It is apparent that in relation to each of the three counts there was evidence that the applicant "pushed" or "put" his penis into the mouth of the complainant. Although we have not been provided with the addresses of counsel there is no doubt that the prosecution case on each of these counts was that the applicant had placed his penis in the complainant's mouth. The term "oral sex" which was used by his Honour clearly referred to this evidence and the suggestion that the jury could have been under any illusion to the contrary is to my mind fanciful. No exception was taken to the way in which his Honour charged the jury in relation to these matters and taking into account the manner in which the trial was conducted neither could there have been.

Ground 4 - The verdicts of guilty on counts 5, 6 and 8 are unsafe and unsatisfactory in the sense that:

(a) the verdicts on all three counts are uncertain or are afflicted with latent duplicity.

(b) it was not open on the evidence to exclude the possibility, in relation to counts 6 and 8, that there were no assaults.

55 The argument in support of ground 4 bears some similarity to that advanced in relation to ground 3. The submission that the verdicts on all three counts are uncertain or are afflicted by latent duplicity is based upon the contention raised by ground 3 that in his directions his Honour did not identify adequately the behaviour of the applicant said to support each such count. As stated above I consider that the directions given in relation to each count of indecent assault were adequate. There could be no uncertainty as to the factual basis upon which each count was put before the jury.

56 However, the applicant submits further, that it was not open on the evidence to exclude the possibility that there was no assault committed by the applicant in the circumstances of either count 6 or count 8. It is submitted that because the complainant gave evidence in relation to both counts that the applicant had on each occasion, asked her to kiss his penis, which she did, the jury "could not reasonably exclude" the possibility that the complainant had "placed her mouth over the penis of the applicant" rather than that the applicant placed his penis in her mouth. It is submitted that this is so "given it was plainly her act to kiss the applicant's penis". Such conduct, it is submitted, does not amount to an assault and thus it is contended that "so far as the jury might have relied upon" this evidence, it was not open for them to do so. In my view this complaint is without substance. The jury were instructed correctly concerning the elements of the offence of indecent assault. The evidence of the complainant in relation to count 6 was that having asked the complainant to kiss his penis, the applicant "pushed" his penis in her mouth and in relation to count 8 that he "put" his penis in her mouth. It was open to the jury to accept that evidence in accordance with the directions given to them as evidence of indecent assault.

Ground 5 - aggregate of errors

57 The applicant contends that even if none of the individual grounds upon which he relies amounts to a miscarriage of justice, in combination they do. Taking into account my conclusions in relation to each of the above grounds I do not accept that there is any substance in this submission.

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

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[1] AM v the Queen [2006] NTCCA 18; (2006) 164 A Crim R 558; R v [2005] QCA 368; LR (2005) 156 A Crim R 354; Lefroy v R [2004] WASCA 266; (2004) 150 A Crim R 82.

[2] R v PMT [2003] VSCA 200; (2003) 8 VR 50 ; cf R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [19], [204].

[3] At [31]-[32].

[4] [1989] HCA 60; (1987) 168 CLR 79 at 100.

[5] At 108.

[6] R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631 at [87] per Ormiston JA; R v WEB [2003] VSCA 205; (2003) 7 VR 200 at [48]- [49] per Winneke ACJ; R v KJ [2005] VSCA 153; (2005) 154 A Crim R 139 at [27].

[7] [2001] NSWCCA 290; (2001) 52 NSWLR 82.

[8] At 121.

[9] At 122.

[10] At 135.

[11] [2003] VSCA 200; (2003) 8 VR 50.

[12] At 59.

[13] At 59.

[14] [1989] HCA 60; (1989) 168 CLR 79.

[15] At 108.

[16] See R v Young [1998] 1 VR 402 at 407-409.

[17] At 91.