R v H R A [2008] VSCA 56

**1 For the reasons given by Kellam JA, I would also dismiss the applications for leave to appeal against conviction and sentence. I wish only to comment on two aspects of the third ground of the application for leave to appeal against conviction. As Kellam JA explains in his reasons, ground 3 relates to the admissibility of evidence of the conduct and statements made by the complainant to her mother on the evening of 28 December and the statements she made to her mother on the following day.

2 Counsel for the applicant submitted that these statements were inadmissible because they were not capable of amounting to complaints, but were 'mere narrative' and because the complainant did not make them at the first available opportunity after the alleged sexual assaults had occurred. Counsel relied on the decision of this Court in R v Knigge,[1] in support of that submission.

3 In R v Knigge the complainant had made a number of statements to her teacher about six months after the end of the 'between dates' period during which the offences were said to have occurred. The complainant told her teacher that the applicant ran around the house wearing only a towel and that the children 'had to try and grab the towel and pull it off him'. She also said that the applicant came into the bathroom when she and her sister were in the bath, and that he liked to put his hand on her leg.

4 Winneke P doubted whether this was evidence of a complaint at all, commenting that it seemed to have:**

been in the nature of general discourse between the complainant and the witness about events of day to day activities (by no means approaching the conduct complained of in the VATE tape) which had occurred many months before at the complainant's house.[2]

**5 In my opinion the conduct and statements of the complainant in this case were clearly distinguishable from the statements of the complainant in R v Knigge. On the evening of 28 December she simulated sexual behaviour of a kind which would have been unfamiliar to a child of her age and followed it up with a statement to her mother that the applicant had 'licked her pee pee'. She made a similar statement to her mother on 29 December and also alleged that she had rubbed cream on the applicant's penis and that he had rubbed cream on her vagina. In a six year old child no significance can be attached to the fact that the complainant simply described what she alleged had occurred, rather than expressing a grievance against her grandfather.

6 Counsel also contended that the statements were not admissible as 'recent complaints' because they were not made at the first reasonable opportunity. Unlike the situation in R v Knigge, where the statements were made six months after all contact between the complainant and the applicant had ceased, these complaints were made shortly after the offences covered by counts 4 and 5 were alleged to have occurred, namely between 21 and 23 December. I agree with Kellam JA that the delay was not unreasonable having regard to the age of the child and her belief that the alleged events were a 'silly secret.' Although counts 1 and 3 may have occurred up to a year prior to the complainant describing the course of conduct to her mother, the complainant was not aware that the alleged behaviour was wrong, until she was told this by her mother on 29 December.

7 I also agree with Kellam JA that the statement was sufficiently linked in time to all of the alleged sexual assaults to be admissible as a recent complaint relating to all of the counts on the presentment. Where a child complains of a series of sexual assaults which are alleged to have occurred over a relatively short period, and the complaint relating to one or more of those assaults is sufficiently 'recent', it seems to me that the recent complaint exception must apply to admission of evidence of all the events of which complaint is made.

8 It would be entirely artificial to apply the recent complaint exception only to the alleged assault which was closest in time to when the complaint was made, and to exclude the evidence (or tell the jury to disregard it) so far as it alluded to other alleged assaults which were part of the same course of conduct. Recent complaint evidence is, of course, admissible as evidence of the consistency of the complainant's conduct and not as evidence of the truth of the facts which are the subject of the complaint. In my opinion the complainant's behaviour in rubbing herself up and down on top of her mother, and the statements she made to her mother on Sunday 28 December 2003 demonstrate 'consistency in her conduct and consistency of the evidence given in court'[3] in relation to all of the alleged assaults.

9 It might be said that this is an extension of the principles relating to the admission of recent complaint evidence. The precise point does not appear to have been previously decided. However, it is not inconsistent with the case law to hold that a complaint of a series of assaults can be admitted for the purposes of buttressing the complainant's credibility, if it is 'recent' in relation to some of them. In R v Knigge, for example, where the alleged sexual offences occurred during two 'between dates' periods, Winneke P appears to have assumed that if the evidence had been admissible because the child had complained at the first reasonable opportunity, the evidence could have been admitted to demonstrate consistency in the child's evidence about 'the type of behaviour' of which he or she complained.[4] Similarly in R v Suresh, Kirby J referred with approval to the statement of Anderson J in the Court of Criminal Appeal that:**

was ample "reasonable" opportunity for complaint to be made in this case shortly after each group of offences occurred.[5]

10 If I am wrong in that conclusion, I agree with Kellam JA that the agreement by counsel to 'abide by Judge Kelly's rulings' was based on a forensic decision taken by defence counsel. In these circumstances, I do not consider that ground 3 is made out. As I have said, I agree with his Honour's reasons relating to the other grounds of appeal against conviction.

**11 On 31 October 2006 the applicant was presented before the County Court on five counts of committing an indecent act with a child under 16 years of age. This was the second trial of the applicant, an earlier trial in February 2006 having ended with the jury being discharged without verdict upon not reaching an agreement on any count. Counts 1, 2 and 3 on the presentment related to offences alleged to have occurred between the dates of 22 December 2002 and 20 December 2003. Counts 4 and 5 related to offences alleged to have occurred between 21 and 23 December 2003. On 9 November 2006 the jury empanelled on the applicant's trial returned a verdict of guilty on counts 1 and 3 but acquitted him on counts 2, 4 and 5.

12 On 16 November 2006 and after hearing a plea in mitigation of penalty, the sentencing judge imposed the following sentences; on count 1 - two years' imprisonment, on count 3 - two years' imprisonment. His Honour directed that one year of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1. This created a total effective sentence of three years' imprisonment in respect of which a non-parole period of two years was fixed. His Honour declared further that pursuant to the provisions of the Sex Offenders Registration Act 2004, and by reason of the applicant's conviction on counts 1 and 3 he be registered as a Class 2 sex offender.[6]

13 The applicant has now applied for leave to appeal against his conviction on the following grounds.**

(a) the prosecutor's cross-examination of the applicant on his opinion whether the complainant had fabricated the allegations and had done so at the instance (sic) of her parents;

(b) the learned judge's repetition, without criticism, of that cross-examination and arguments made in support of it.

(a) in failing to instruct the jury to disregard as without basis the prosecutor's cross-examination of the applicant and his submissions to the effect that the applicant had sought to create a false alibi and to invent an innocent explanation for the observations of the child (witness "N"); and

(b) In failing to give Edwards, Zoneff and/or similar directions in respect of that cross-examination and those submissions.

3. The learned judge erred in admitting into evidence the purported evidence of "recent complaint", or a miscarriage of justice resulted therefrom; and in particular:

(c) the "complaints" were extracted from the complainant;

(d) the evidence concerning the "complaint" of 28 December 2003 was so coloured by the description of simulation that it ought not to have been led.

4. The learned judge erred in his directions on "recent complaint" and in particular he erred:

(a) in implicitly directing that the evidence of "recent complaint" went to all counts and in failing to direct that the evidence of complaint could go only to count 4 and not to any of the other counts;

(i) that it was for the jury to determine whether the complaint was made, and if so, whether it was consistent with the complainant's account of the events giving rise to count 4;

(ii) that such evidence does not provide evidence of the facts stated in the complaint;

(iii) that it does not in any way at all assist to prove the truth of the facts alleged;

(iv) that those facts must be proved by other evidence; and

5. The learned judge erred in admitting into evidence and/or playing to the jury the whole or parts of the VATE tape of the complainant, or a miscarriage of justice resulted therefrom given:

(a) the fact that the making of the tape had been preceded by "complaints" extracted from the complainant;

(b) the lack of clarity of the allegations made in the VATE tape;

(c) the references in the tape to previous statements made to others.

6. An aggregate of the errors or defects identified in grounds 1 - 5 caused the trial to miscarry.

7. The verdicts of guilty on counts 1 and 3 are unreasonable or cannot be supported having regard to the evidence; and, in particular, no reasonable jury properly instructed could be satisfied beyond reasonable doubt of the applicant's guilt in view of several aspects of the trial and the evidence before the jury including:

(a) any or all of the matters raised in grounds 1 - 6;

(c) the absence of evidence of recent complaint in relation to counts 1 and 3;

(d) the absence of any evidence corroborative of the complainant's allegations;

(e) the complainant's age at the time of the alleged offences and at trial;

(h) the evidence of the motive of the complainant's mother to lie;

(i) the uncertainty in the evidence as to which alleged occasion was the subject of the allegations of the counts 1 and 3;

(j) the sworn evidence of [the three named witnesses].

**14 The applicant is the grandfather of 'C'. C was born on 27 October 1997. From time to time during 2003, C and her brother N were cared for by the applicant and his wife, the children's grandmother. N is approximately 18 months older than C, having been born on 27 March 1996.

15 On Sunday 28 December 2003 and whilst at home watching television with her mother, C, who was then aged six years, began to behave in what her mother considered to be an unusual manner. She started to dance around the room pulling her pants up and down. She jumped on top of her mother, straddling her stomach and started rubbing herself up and down on top of her mother. She said 'Does that feel good, that feels good'. Her mother questioned her. C told her that she had a 'silly secret' with poppy. C and her brother used the word 'poppy' to refer to the applicant. C told her mother 'it's when poppy takes me to his room and licks my pee pee'. 'Pee pee' was the word used by C to describe her vagina. It should be observed that the statements made to her mother on this occasion appear to relate only to counts 1 and 4 on the presentment. The complaint of sexual misconduct made by the complainant to her mother on the evening of 28 December 2003 was that the applicant had licked her 'pee pee'.

16 The following day, 29 December 2003, C's mother took her to the sexual abuse unit at the Royal Children's Hospital where she was examined. No physical abnormality was found.

17 Subsequent to the examination of the complainant at the hospital, she and her mother went to the McDonald's restaurant situated at the hospital. Her mother said in evidence 'I ordered her some food and I just wanted to ask her some more questions because by this stage I still hadn't found out a lot about what had happened.' The mother of the complainant was asked in examination-in-chief whether the complainant then elaborated on what she had said the night before. The mother of the complainant said that she did so elaborate. The complainant told her that 'every time she went to stay at poppy's he took her to his room and licked her pee pee'. The complainant told her mother further that the applicant 'rubbed cream onto her and she rubbed cream on him and then they rubbed cream into each other's pee pees.'

18 On Wednesday 31 December 2003 the complainant's mother notified police of her daughter's allegations. There was evidence that police officers attended at the home of the complainant on Saturday 3 January 2004 and had a discussion with C at that time.**

**19 On Tuesday 6 January 2004 the complainant took part in a Video and Audio Taped Evidence (VATE) procedure. The videotape was played to the Court at the trial and the complainant, who gave sworn evidence by video link, adopted her statements as the truth, which then constituted her evidence-in-chief.[7]

20 In view of the grounds of the application made before us it is necessary to set out some of the detail of that interview. The complainant told the interviewer in the VATE procedure that she was six years of age. In the course of the interview, the interviewer, one Senior Constable Sutherland, referred to a discussion which she and other police had had with the complainant on the previous Saturday. The complainant was asked to repeat the conversation that had taken place on that occasion. The complainant answered that the conversation was about 'Our poppy' and 'About privacy'. She was asked to say more about what had been discussed. A viewing of the tape reveals that she then whispered, wiggled her fingers around and said 'Well, last time I went to poppy's he did his little thing about my pee pee'. She said 'This whole thing is about him licking my pee pee'. She said that she used her pee pee for 'weeing out'. She then described an incident which she said she 'guessed' had occurred six days earlier on a Sunday. She said that she was at the applicant's house and that her grandmother had gone shopping. She said that she was playing with her dolls when the applicant came and held her by the hand and led her into his bedroom. She described how she lay on the bed with her pants down. She said that she had pulled her pants down so that the applicant could 'lick her pee pee' and that he had pulled his pants down so she could' lick his pee pee'. She said that he had licked her pee pee. This allegation was the subject of count 4 on the presentment. She said that as he was doing this her brother, N who was then aged seven years and who was also staying with his grandparents at the time, entered the room. The complainant said that upon N entering the room the applicant 'pretended' to look for his glasses and at the same time pulled up his pants. She then returned to play with her dolls and her brother and the applicant went to watch cricket on the television. She demonstrated the place where she said she had been licked as being in the middle of her vagina. Subsequently in the course of the interview the complainant said that she was on her grandmother's side of the bed when the applicant was licking her pee pee. She said that she then got on top of him and she licked his pee pee. She said his pee pee was his private part, the part that he used for his weeing. She described 'poppy's pee pee' as being 'like a big stick'. She said she was sitting on poppy when she licked his pee pee. She said that when she was licking poppy's pee pee, the tip of her tongue was touching poppy's pee pee. This allegation was the subject of count 5. Accordingly the events alleged to have occurred on the last occasion that the complainant visited her grandparents were the subject of counts 4 and 5. It was alleged that the offences the subjects of those counts were committed between 21 December and 23 December 2003.

21 In addition to those allegations, in the course of the VATE tape interview the complainant said that 'they' (referring to the applicant and herself) got cream and put it on each other's pee pee. She said that this had happened on the second last occasion that she had been with her grandfather. She said 'Poppy got his finger to wipe the pee pee with cream'. She said 'You get the cream, put it on your finger, then rub it into your pee pee, then just pull their pants down'. She said that on the second last time the applicant had licked her 'pee pee, put cream on'. She said that the cream had come from her grandmother's 'basket in the bathroom'. She said that this was not the first time that her grandfather had done it to her with the cream. She said that he had done it to her 'about 50 times'.

22 The allegation that the applicant had licked the complainant's vagina on an occasion which preceded the period between 21 and 23 December 2003 was the subject of count 1. The allegation that the applicant had applied cream to the complainant's vagina on an occasion prior to the period between 21 and 23 December 2003 was the subject of count 2. The allegation that the complainant had applied cream to the applicant's penis on an occasion prior to the period between 21 and 23 December 2003 was the subject of count 3.

23 The complainant was cross-examined at some considerable length. She was aged nine years at the time of giving evidence. The complainant agreed that she went to stay with her grandparents on the afternoon of Sunday 21 December 2003. She agreed that the applicant had gone to work on Monday 22 December 2003. Accordingly, she agreed that the matters of which she complained (the subject of counts 4 and 5) probably had taken place on Tuesday 23 December 2003. In relation to count 2 which was based upon her VATE tape allegation that the applicant had rubbed cream into her vagina she said in cross-examination that the applicant had never rubbed cream into her 'pee pee'. She said that on occasions she had rubbed cream onto his 'pee pee'. She described his 'pee pee' as having hairs on it, and stated that it felt a little bit squishy, describing it as having a 'sort of a curve' and being a little bit fat. In relation to count 5, which it will be recalled was an allegation that between 21 and 23 December 2003 the complainant had licked the applicant's penis, the complainant said that she did not do that on Tuesday 23 December 2003. She said that it had not happened on the day that N had come in and interrupted her and the applicant in the bedroom. In the course of cross-examination she said it was not true to say that her grandfather had never licked her pee pee. She said that she was not telling the Court a lie about that matter and that she denied that anyone had told her to say 'these things' about her grandfather. In particular she denied the suggestion put to her by counsel for the applicant that her mother had told her that her grandfather had done 'those things to her'. It is appropriate to note that no suggestion is made by counsel for the applicant that the complainant's answers to questions asked in cross-examination, were anything other than responsive. It is not suggested, nor could it be, that the applicant was deprived of any realistic opportunity of testing the credibility and reliability of the complainant's evidence through cross-examination, as was the circumstance in R v NRC.[8]**

The other evidence called in the prosecution case

**24 The mother of the complainant gave evidence of the statement made to her by the complainant on the evening of 28 December 2003 and of taking her daughter to the Royal Children's Hospital and of what the complainant told her after the medical examination conducted upon her at the hospital that day. She said that in the 12 months prior to December 2003 her children had stayed with her parents 'on various occasions'. She said 'If we were going out on an engagement or something or during the school holidays they would occasionally stay overnight'. She had kept a diary and she gave evidence that her diary recorded that her children had stayed overnight with her parents on Sunday 25 May 2003, Friday 5 September 2003, Sunday 21 December 2003, and Monday 22 December 2003. The diary recorded that her mother had 'picked up' the children on Wednesday 26 November 2003 but she was 'not sure if they had stayed overnight'. In the course of cross-examination it was put to her that there had been 'bad blood' between her husband and her father, with which she agreed. She agreed that when the complainant first described the conduct of her grandfather to her on 28 December 2003 the complainant had not said anything about licking her grandfather's penis. She said she was told of that allegation on 29 December 2003 in the course of a discussion which took place at a McDonald's restaurant after the child had been examined at the Royal Melbourne Hospital. She said that during 2003 the complainant had suffered vaginal thrush for which she was treated with cream. The mother denied that she had pressured the complainant, although she said that on the occasion of the discussion at McDonalds, she had asked C to provide her with more information.

25 The complainant's brother 'N', gave evidence-in-chief before the jury by way of a VATE tape. He was born on 27 March 1996 and accordingly was aged seven years as of December 2003. He stated that during the first week of the Christmas holidays in 2003 he and the complainant spent two nights at his grandparents' house. He said that he was watching cartoons, or cricket, on television with the complainant and the applicant. His grandmother had left the house. The applicant went to his bedroom and the complainant followed. Around mid-day he noticed that the house was quiet. He went to his room, which was empty, as was the room occupied by the complainant. He went to his grandparents' room. He saw the applicant and the complainant on the bed. N asked what they were doing. The applicant replied that he was looking for his glasses. Under cross-examination, N agreed that on a day before Christmas 2003 when he and his sister were staying with his grandparents and when his grandmother went out, a man came to the house to work on the fence.

26 The applicant's wife gave evidence. She said that on Tuesday 23 December 2003 she left the house shortly before 9 am. She said that before leaving the premises a fencing tradesman, Peter Shaw, attended in order to install security grills on the windows of the house. When she left, the applicant and her two grandchildren were at home. She returned at 1.20 pm. Peter Shaw had left but her son, his wife and their two children were present. They left about 20 minutes after her return. She remained home all afternoon until she and the applicant took the complainant and her brother to a bar-b-que late in the afternoon.

27 In the course of cross-examination the applicant's wife stated that the complainant and her brother had stayed overnight with her and the applicant on five occasions in the 16 month period leading up to Christmas 2003. She said that prior to that she had had daily contact with them as she had babysat them for five years whilst the complainant's mother went to work. She said that 18 months prior to December 2003 the applicant 'found it necessary to sack [the complainant's father] from' a family business. She said that that had 'caused angst between' the applicant and the complainant's father but 'never between my daughter and myself'.

28 One of the applicant's adult sons, to whom I shall refer as 'J', gave evidence. In evidence-in-chief he stated that he attended at his parents' home on Monday 22 December 2003 where he saw his parents and the complainant and her brother. Peter Shaw was there. He stayed for approximately half an hour. However in cross-examination by counsel for the applicant he said that it 'may have been' that his father was not there that day. The next day, Tuesday 23 December 2003, he returned at approximately 10.30 am in company with his wife and two children. He gave evidence that Peter Shaw was there again at that time. The applicant was present with the complainant and her brother. J said that he then left his wife and one son at the premises for approximately an hour whilst he went shopping with his other son. When he returned approximately an hour later, his wife and other son were still at the premises in company with the applicant and his two grandchildren. His mother was not there when he returned. In cross-examination by the applicant's counsel he said that his mother returned home about half an hour after that. He said that he 'probably' went to his parents' house every day after they moved there in late 2002. He said that he had seen both C and N there 'generally during the day'. He said that they were not there on a daily basis but he had seen them when he attended there during the day.

29 Another of the applicant's adult sons, whom I shall call 'T', gave evidence that he went to his parents' house at approximately 12 pm on Tuesday 23 December 2003. He said that his mother and the applicant, the complainant and her brother were present as was his brother J, and J's wife.

30 Peter Shaw, a work colleague of the applicant, gave evidence that he had gone to the applicant's home on either the Monday or the Tuesday before Christmas 2003 in order to put bars on windows of the house. He said that he had arrived at approximately 8.30 am. He did not see the applicant's wife, but he did see the applicant and his two grandchildren, the complainant and her brother. He said that the children were outside with him for some of the time that he was present at the house. He said that he went out to buy some 'parts' at approximately 11 am. He said that as he went out he observed the applicant's son and his wife coming into the driveway. He said that he returned approximately 20 minutes later and the applicant's son's car was not there. He worked for an approximate period of a further hour and left about lunchtime. He saw no-one else during that hour except for the applicant when he said 'goodbye'.

31 As stated above, Count 1 on the presentment related to the allegation that the applicant had licked the complainant's vagina on an occasion between 22 December 2002 and 20 December 2003. Count 2 related to the allegation that the applicant had applied cream to the complainant's vagina between the same dates[9] and count 3 related to the allegation that the complainant had applied cream to the penis of the applicant between the same dates. Counts 4 and 5 related to a much more limited time, being between 21 December and 23 December 2003. Count 4 related to an allegation that the applicant had licked the vagina of the complainant on the last occasion that she had been present at his home. Count 5 related to an allegation that the applicant had had the complainant lick his penis on the same occasion as count 4 was alleged to have occurred.[10]**

**32 The applicant gave evidence. He said that there were only four occasions on which the complainant had visited the house in which he lived. He denied having licked the complainant on the vagina. He said that she had never licked his penis, he had never rubbed cream into her vagina and she had never rubbed cream onto his penis. He said that on Tuesday 23 December 2003 a work colleague had arrived at his house at approximately 8 am. His wife left home at approximately 8.40 am. His son and his wife and their two children arrived at approximately 10 am. He said that both the complainant and her brother were outside with his work colleague who was working on the house. He said that there was never a time on any previous occasion that year when the children were at the house at a time when his wife was not present. In cross-examination the applicant said that the complainant had made up a story and had been put up to it by her parents because of the bad blood that existed between her parents and himself. He said that there had never been any improper sexual contact between him and the complainant and there was never any opportunity on Tuesday 23 December 2003 for anything to happen as he was never alone with her. He agreed that there had been an incident which had occurred on Tuesday 23 December 2003 when he had been looking for his reading glasses. He said that he had been asleep in his bedroom in the course of the afternoon. The complainant came into his bedroom and woke him up. He had refused to get up and the complainant had dragged the blankets off him onto the floor so that he would be forced to get up. He was in the process of getting up and realised that his glasses had disappeared from the cupboard next to his bed. He asked the complainant where they were. She said that she did not know and so he went around looking for them. In the course of this, the brother of the complainant had entered the bedroom.

33 The verdicts of the jury demonstrate that they were not satisfied beyond reasonable doubt that the applicant was guilty of the offences which were the subject of counts 2, 4, and 5.

34 It is submitted that a miscarriage of justice resulted from the prosecutor's cross-examination of the applicant as to whether the complainant had fabricated the allegations and had done so at the instigation of her parents. The prosecutor's cross-examination of the applicant commenced as follows:**

PROSECUTOR: Mr [H], your defence is that [the complainant] has fabricated these charges is it not?

ANSWER: Well, it never happened, so if that's the case.

QUESTION: And you're saying she's been put up to it by her mother and by her father?

QUESTION: You are saying that as a result of pressure that has been brought to bear by her mother and her father she's made these allegations.

QUESTION: Don't worry about what you think she can remember or not. The allegations were made back in December 2003, you're saying that she was put up to making those allegations by her parents?

QUESTION: You are telling the jury that she was put up to making those allegations by her parents because of bad blood between you and her mother and father over business arrangements?

QUESTION: As a result of your business falling out, they've decided to get even with you, or to pay you back?

ANSWER: Well I'm not in a position to make that decision but ...

QUESTION: No but you are saying that the consequence of that bad blood is that C has made the allegations that the jury have seen made on the VATE tape that's been tendered in evidence.

35 The cross-examination concluded with the following question and answer:

QUESTION: Your only explanation for these allegations is the fact that this child was put up to making them by her parents?

ANSWER: Well I don't have an explanation, because I can't say ... I can't say what's in a child's mind but that is possible.

**36 In his charge to the jury, the judge summarised that cross-examination without criticism. No exception was taken to the cross-examination or to the judge's charge. Nevertheless it is submitted that a miscarriage of justice resulted from the cross-examination and the judge's uncritical summary of it.

37 It is well established that any witness, and in particular an accused who gives evidence, ought not to be asked in cross-examination whether another witness has lied[11]. The respondent concedes that this is so, but argues that in the particular circumstances of this case the cross-examination of the applicant as to the above matters must be seen in the context of the trial. It is submitted by the respondent that the defence case was that the complainant's allegations were fabricated by reason of animosity between the complainant's parents and the applicant. In responding to the prosecution's opening address, counsel for the applicant stated that the jury would hear allegations made that were the 'fertile imagination of a very precocious young girl ... arrived at of her own notion or planted there intentionally or otherwise by questioning or suggestions from her mother'. He told the jury that the 'unfounded allegations' arose out of a 'background of bad blood and anger and bitterness'. In the course of cross-examination of the mother of C, the following exchange took place between counsel for the applicant and the witness:**

QUESTION: See what I'm suggesting to you is that you have exaggerated what C has told you about what her grandfather did to her, what do you say to that?

QUESTION: I'm suggesting to you that these allegations arise out of the fact that there was a great deal of bitterness between you and your father around this time, in late 2003.

ANSWER: Well, we spent Christmas Day together. That was about three days before this happened, the whole family spent Christmas Day together.

38 During a break in the cross-examination of C by counsel for the applicant, the prosecutor raised with the judge the fact that counsel for the applicant had not put the allegation to C that her allegations were fabricated. The following discussion took place between the prosecutor, counsel for the applicant and the trial judge:

PROSECUTOR: Your Honour, it's the point where it got to in the last trial and that is the Brown and Dunn point and my friend has quite properly put each allegation to the witness which she has denied, but what he hasn't put, he did put it to the mother, was that essentially these allegations were fabricated.

HIS HONOUR: Someone had planted the seed in her mind.

HIS HONOUR: and that's the whole thrust, I understand, of the defence.

HIS HONOUR: Of the defence and I think it should be put.

APPLICANT'S COUNSEL: Your Honour, rightly or wrongly, and I will abide by your Honour's ruling obviously, if you say I should put it I will have to do so. I took the view, and as I say it was a considered view, that in the light of the authorities that talk about it not being proper for prosecutors to raise the issue of motive to lie or reason to lie, that it was not necessary for me to suggest where that came from. But Brown and Dunn compels me to do as I did before I sat down.

HIS HONOUR: Yes, isn't it central to your whole case, as I understand it, that there is bad blood in this family and that the mother or the father or some person unknown has sowed the seeds in this child and also it seems in relation to N, perhaps to that - perhaps to a lesser extent, that she should say these wicked things against poppy to even the score, that's the whole basis of your case as I understand it and I think you should explore that with her if that is going to be the basis of your case.

HIS HONOUR: Just as a matter of fairness, whether she knows anything about it or not I don't know but I think it should be explored.

APPLICANT'S COUNSEL: Your Honour, as I said I'll put it if your Honour says that I am required to.

HIS HONOUR: It's up to you, if you don't put it it's open to me to make a comment and Mr Silbert can make a comment. But it seems to me that seeing it's so central, that your case is that this child's mind has been corrupted by the parents or somebody else to say these things.

APPLICANT'S COUNSEL: Your Honour, the Court of Appeal has said on a number of occasions that in these sort of cases it is not for the defence to suggest or submit a motive to the complainant not telling the truth, and they have said it in so many words that it is -

HIS HONOUR: Perhaps if you can give me those authorities. We will adjourn.

APPLICANT'S COUNSEL: Yes, your Honour I don't want to waste the Court's time.

HIS HONOUR: It's a very important issue as far as you're concerned. As I understand it that's the whole nub of your defence that these children, or this child in particular, is telling untruths at the instigation of a third party. That's as I recall.

HIS HONOUR: You didn't say as much to the jury in relation to the child but the jury, you told them in your opening response as I recall, that this arose out of bad blood.

APPLICANT'S COUNSEL: Alright your Honour I will put it to her.

PROSECUTOR: Your Honour, just for the purposes of the transcript, can I just record in relation to what my friend said.

PROSECUTOR: The leading case in the High Court is Palmer's case which says that the prosecution can't go to the jury and say "what motive has this child to lie". In a situation where the motive is actually introduced, opened to the jury and a central part of the defence, in that situation Palmer's case does not preclude the prosecution going to the jury as I will be on the question of this witness being put up to concoct a story, fabricate a story by others. As your Honour said it's a central part of the case it's really got to be put.

APPLICANT'S COUNSEL: Your Honour, I would formally seek your Honour's leave to reopen the cross-examination.

39 Upon the complainant being recalled, it was put to her that during 2003 there was 'a lot of arguing between poppy and your mum and dad about the business that they were in together'. The complainant answered that in the affirmative. The following questions and answers were then recorded:

QUESTION: And they were, it wasn't just on one side, they were both angry with one another about - well sorry, they were all angry with one another about the way the business was going?

QUESTION: Now these things that you said that poppy did to you, like licking your pee pee and you licking his pee pee and you rubbing cream in him and him rubbing cream in you, as you said on the tape, was that ever suggested to you that pop had done these things to you? Had anyone ever suggested that that had been done?

QUESTION: No, suggested that pop - not ask you - did poppy do anything to you, but ask? - well ask you did he ever do anything to you like that?

ANSWER: No-one ever asked, because no-one ever knew.

QUESTION: Can I suggest to you that your mum might have done that to you, that she might have asked you questions about that?

QUESTION: Can I suggest that she may have suggested that pop did that to you before you actually told her about it?

QUESTION: I know, it's a bit technical - a bit difficult, isn't it?

QUESTION: Can I suggest to you that mum told you that poppy had done these things to you? Mum told you as opposed to you telling mum?

ANSWER: 'Cause she never knew. I told her on whatever the show I was watching, I forget what it's called, I told her - sorry, I started reacting and then as you said she said "now what's happening, this is silly". Then I said it's this crazy secret that pop and I have.

**40 The respondent submits that in circumstances whereby the defence had asserted that the complainant had a motive to lie, the questions asked of the applicant were permissible.

41 In R v Bajic, Eames JA having observed that it is generally impermissible to ask an accused person questions as to why a complainant would lie, stated[12]:**

... the position might be different if the accused, whether through his counsel's cross-examination of the complainant or in his evidence, had suggested that the complainant did in fact have a motive to lie. In that event the prosecutor would be entitled to cross-examine the accused to establish that in so far as the inference of the suggested motive was based on facts in the knowledge of the accused, he had no basis for asserting the existence of those facts.

Thus, in the present case, if defence counsel's cross-examination constituted an assertion that the complainant T was motivated to lie by a desire to obtain compensation, the prosecutor would have been entitled to cross-examine the applicant to establish that he could provide no evidence to support that assertion.

**42 In R v SWC[13] the Court stated that an exception to the rule that an accused is not to be asked whether another witness has lied arose in circumstances 'where in his or her evidence-in-chief the accused has specifically alleged that a Crown witness has been lying'.[14]

43 It should be observed that the applicant in his evidence-in-chief did not assert that the complainant had fabricated her evidence by reason of the 'bad blood' between her parents and the applicant. Rather, it was his counsel who had raised the matter of 'bad blood' in the course of his response to the prosecutor's opening address and in the cross-examination of the complainant's mother.

44 In R v Davis[15] Buchanan JA said as follows:[16]**

In my opinion it is one thing for the accused in his evidence to make an allegation that Crown witnesses are lying; it is another for counsel to suggest to the jury that the Crown case has been fabricated. If the accused himself opens the question, he can be cross-examined on the topic, as he can on any other matter as to which he gives evidence. On the other hand, if the accused does not allege the Crown witnesses are lying, the impugned cross-examination may well deflect the jury from an appropriate assessment of his credibility and that of the Crown witnesses. The question whether the Crown witnesses are lying is to be determined by the jury. The opinion of the accused is irrelevant. The cross-examination is apt to create an immaterial conflict between an accused on the one hand and the Crown witnesses on the other, which has the danger of side-tracking the jury from their task of assessing the evidence. Further, the cross-examination is tantamount to bullying. The accused is challenged to brand witnesses as liars. The cross-examiner seeks to trade upon a natural reluctance to defame others in the absence of certain knowledge.

The foregoing objections to an accused being asked whether the witnesses have lied do not apply to counsel for the applicant arguing before the jury that the Crown case rests upon lying testimony. Such an argument does not draw the accused into the question whether or not the witnesses are honest or lying, but directly addresses the question which the jury must consider.

**45 Accordingly, the issue to be determined is whether or not the cross-examination of the applicant was permissible. Clearly the prosecutor was entitled to cross-examine the applicant so as to establish that the suggested motive was not based on any facts within the knowledge of the applicant. In my view, in circumstances whereby counsel for the applicant had raised the issue in his response to the prosecution opening address, and in circumstances whereby the mother of the complainant was cross-examined in detail as to alleged 'bad blood' between her husband and her father, the prosecution was entitled to cross-examine the applicant as to that matter and as to the assertion made on his behalf in such cross examination that the complainant was motivated to make false allegations against him by reason of that matter. The defence contended throughout the trial that the complainant had fabricated her evidence in consequence of the 'bad blood' between the applicant and the complainant's father. The jury were obliged to consider this assertion in the consideration of whether or not it raised a reasonable doubt as to the credibility of the complainant's evidence. In my view the particular circumstances were such that it was not improper for the prosecutor to explore the matter in cross-examination. However, the prosecutor was not entitled to ask the applicant to express an opinion as to whether the complainant was lying nor was he entitled to ask the applicant to speculate as to her reasons for lying. To the extent that he did the prosecutor's questioning of the applicant was impermissible.

46 In particular, the questions asked tended to require the applicant to express an opinion as to whether the complainant was lying and her motive for doing so. The opinion, or speculation, of the applicant as to those matters was irrelevant, it being for the jury to determine the credibility of the complainant, and not the applicant. Indeed, the vice in the questions asked of the applicant is revealed fully by the answer given by him to the suggestion put by counsel that his only explanation for the allegations was the fact that the complainant had been 'put up to' making the allegation by her parents. The applicant said that he did not have an explanation because he 'could not say what was in a child's mind'.

47 However, no exception was taken to the questions by experienced counsel, nor was any exception taken to the trial judge's summary of that part of the evidence. In all the circumstances and although I consider that the questions asked of the applicant in this regard did cross the line of permissible cross-examination I do not consider that it can be said to be the cause of a miscarriage of justice.**

**48 Ground 2 is that the trial judge erred in failing to instruct the jury to disregard as being without basis the prosecutor's cross-examination of the applicant to the effect that the applicant had sought to create a false alibi, and had sought to invent an innocent explanation for the observations made by N in the bedroom of the applicant. Furthermore it is argued that the trial judge should have given Edwards, Zoneff and/or similar directions in respect of that cross-examination and in respect of submissions made to the jury by the prosecutor of similar effect to the questions put by him in cross-examination.

49 It will be recalled that the complainant said in her VATE tape that whilst the applicant was licking her vagina (count 4), her brother N had entered the room. The applicant, she said, pretended to look for his glasses and at the same time pulled up his pants. N gave evidence that he had entered his grandparents bedroom and observed the applicant and the complainant on the bed. He asked what they were doing and the applicant had replied that he was looking for his glasses. The complainant was cross-examined about this matter. She said:**

Well, what happened was pop was licking my pee pee then N walked in and he shoved his glasses under the blanket and he then said "Oh, no, where's my glasses?" and at the same time - he was feeling his hand around in a spot that he knew the glasses weren't and at the same time, he was pulling his pants - with one hand he was pulling his pants up and then when he finally finished pulling his pants up all the way, he lifted up the blanket and got out his glasses and said "Oh there they are" and then he stood back and then just put his belt on and by that time I had already pulled my pants up.

50 In the course of cross-examination the applicant was cross-examined about the 'glasses incident ' as follows:

QUESTION: What I put to you Mr H is, you've tried to invent an innocent explanation in relation to the situation with the glasses.

QUESTION: That the situation as described by [C] which surrounded the licking of her vagina, which had a guilty association with it, you've tried to put an innocent spin on it?

**51 There was a clear conflict between the evidence of the complainant and the applicant and, to a lesser degree, between N and the applicant as to the circumstances surrounding the explanation for what the applicant was doing when N entered the room. In my view, in such circumstances, the cross-examination could not be said to be improper and called for no direction of the sort now suggested to be appropriate. The cross-examination was as to credit and the prosecutor was bound by the answers of the applicant.

52 In addition, however, complaint is made of the cross-examination of the applicant about the evidence as to the applicant's opportunity to have committed the offences on Tuesday 23 December 2003. It will be recalled that there were a number of witnesses who gave evidence that they were present at the home of the applicant at various times throughout Tuesday 23 December 2003. In addition it was the applicant's evidence that during the time when he was in the bedroom on 23 December 2003, his wife and N were in close proximity. In the course of cross-examination the applicant agreed that part of his defence was that there was no opportunity for any offence to have occurred on Tuesday 23 December 2003 because he was 'never alone' with the complainant. The applicant gave evidence that at the time N entered the room he, the applicant, was looking for his glasses. He said 'He would have heard us talking and that was the reason he came into the room. He was only four metres away from us.' He then said that his wife was 'about four and a half metres away' watching television in the front lounge room. However the wife of the applicant gave evidence before the jury that at the time the applicant was taking his 'nap' she was in the kitchen making coleslaw and potato salad for a bar-b-que that she and the applicant and their grandchildren intended to attend later in the afternoon. She gave evidence that she recalled the applicant getting up and coming into the family room. Accordingly there was a conflict between the evidence of the applicant and his wife. The prosecutor put the following question to the applicant:**

QUESTION: You see Mr H, what I'm putting to you is that you have tried to construct yourself an alibi to get yourself out of these charges; what do you say to that?

QUESTION: Part of your alibi has been a series of people who were at the house who you've tried to overlap so that it leaves you very little time to be alone with C, do you deny having consciously having tried to construct a scenario that puts you in that situation?

**53 It is submitted that there was no evidentiary basis to the question and that if there was any evidentiary basis the judge was required to give an Edwards[17] or a Zoneff[18] direction in order to ensure that the jury would not reason in a proscribed manner.

54 In my view the cross-examination of the applicant can be seen in the context of the trial to have been an attack on his credit. The prosecutor established that there was inconsistency in the evidence given by the applicant's wife and the applicant regarding the circumstances of his waking up on the relevant day. There was no risk that the jury would use the questions asked by the prosecutor, which it should be observed were answered in the negative by the applicant, as being evidence of deliberate lies reflecting a consciousness of guilt. The questions were put by the prosecutor as an attack on the credit of the applicant. No exception was taken by the applicant's counsel nor was the issue canvassed at any stage before the trial judge. There was no suggestion in the closing addresses of either counsel that the cross-examination was such as to reveal a consciousness of guilt, nor was there any risk that the jury would treat it as such. In my view no occasion arose for a direction of the Edwards or Zoneff type. In any event the questions asked of the applicant to which exception is taken under this ground related specifically to counts 4 and 5 of which the applicant was acquitted by the jury.**

55 In essence, the complaint of the applicant under this ground is that the evidence of the statements made by C to her mother on the evening of 28 December and on 29 December 2003 should not have been admitted into evidence. As stated above, there had been an earlier trial in February 2006 in which the jury were discharged without verdict. In the course of argument prior to the empanelment of the jury in that trial, the issue of whether or not the statements made to the mother of the complainant on the evening of 28 December 2003 and on the next day, 29 December 2003, should be admitted into evidence arose. The then trial judge, Judge Kelly, ruled that the statements were admissible. In his ruling he said:

The conversation was not one in which the child, who was six years' old at the time, was expressing a grievance or making an accusation. The question, therefore, arises as to whether it was a complaint admissible as an exception to the rules against hearsay and prior consistent statement. The expression "complaint" appropriately attaches itself to an accusation made by a person having been compelled to some sexual activity. It is admissible not to prove the truth of the accusation but to bolster the credit of the accuser by demonstrating consistency of conduct. In this modern age in which contrary to previous practice, it is commonplace to attempt to prove sexual interference with very young children. The question arises as to whether a mere prior consistent statement may be treated as a complaint notwithstanding that it contains no element of grievance or accusation. Justification for admitting prior statements of complaint is that they demonstrate consistency of conduct, consistency between the allegation of sexual assault and the making of a complaint of it. The fact that a child demonstrates sexualised behaviour and upon parental enquiry, gives a narrative of events which includes assertions of sexual behaviour with the accused are circumstances demonstrating consistency between the happening of the sexual behaviour and the subsequent narration of it. It does bolster the credibility of the child's evidence.

Accordingly his Honour ruled that the evidence should be admitted.

56 Upon the proceeding coming on for re-trial, a member of counsel different from the one who had appeared upon the first trial, appeared for the applicant. That counsel told the trial judge that there had been an agreement to 'abide by Judge Kelly's rulings'. Later and immediately before the empanelment of the jury the following discussion took place between counsel for the applicant and the trial judge:

COUNSEL: Your Honour there is just one matter that I need to formally put on record just in case, that is, your Honour that I formally object to the use of the VATE tape but I will adopt [previous counsel for the applicant] arguments of the last trial and I will abide by his Honour's Judge Kelly's rulings of the last trial.

HIS HONOUR: Yes, thank you. It's a curious position you put yourself in then though isn't it? You object to it but you don't object. You formally object but you don't object.

COUNSEL: I'm just really preserving my rights your Honour.

HIS HONOUR: You think you can, all right, if you're confident in that, so be it. Yes, all right, are we ready for a jury?

From that discussion it seems clear enough that counsel for the applicant was not conceding the admissibility of the VATE tape in the second trial, but was not otherwise seeking to re-argue any matter of admissibility including the question of the admissibility of the 'recent complaint' evidence.

57 Dealing with the grounds which attack the admission of the so-called 'recent complaint' evidence it is contended first by counsel for the applicant that the evidence of the complainant did not reveal a 'complaint' as to the alleged sexual conduct of the applicant. It is submitted that what was said by the complainant to her mother was merely 'narrative'. In this regard the applicant relies upon R v Knigge[19]. The factual circumstances in that case were that nearly six months after the cessation of a relationship between the complainant's mother and the accused, the seven-year-old complainant made assertions to a teacher of sexual misconduct by the accused. The assertions were made in the course of a discussion with the teacher about 'games' the accused used to play with her. Winneke P stated[20]:

I would myself doubt whether the evidence of [the teacher] was evidence of a complaint at all within the meaning of that term. Rather, it seems to me to have been in the nature of general discourse between the complainant and the witness about events of day to day activities (by no means approaching the conduct complained of the VATE tape) which had occurred many months before at the complainant's house. As it seems to me the statements made to [the teacher] scarcely resemble the complaint of a grievance harboured by the complainant that she had been sexually abused.

**58 However Winneke P concluded that even assuming that the statements made by the complainant in that case were capable of amounting to evidence of a complaint, it was not a complaint that was made at the first reasonable opportunity.

59 Accordingly the first issue to be decided is whether or not the statements made by the complainant to her mother on 28 and 29 December 2003 are capable of being characterised as being a complaint within the meaning of the authorities.

60 The authorities establish that for evidence of complaint to be admissible it is essential that a grievance or an accusation be expressed[21]. At least in Victoria, it has been held that a mere narrative or report about an incident is insufficient to make the statement admissible[22]. On the other hand, the fact that the person making such a statement is a child is a relevant matter to be considered. As stated in De B v De B[23]:**

The origin of the principle admitting such evidence, the fact that it is available only in a very limited class of case, the basis of its admissibility, the consistent reference throughout the cases and textbooks to the description of the statement as a "complaint", and the purposes for which alone it is admissible, all indicate that the consistent conduct which one naturally expects in this class of case is the expression of a grievance or an accusation against the author of such a wrong. That may, of course, take various forms and be uttered in various ways, and every allowance must be made in the case of children (for instance) for the manner in which they may state the accusation or grievance. Much must depend upon the manner in which the evidence is given, the person to whom and the person by whom and the circumstances in which the statement is made. The mere fact that it is made in response to questions does not rule it out of the category of complaint, if the questions were not suggestive, intimidating, or leading. (Emphasis added).

61 The above statement concedes the difficulty in applying strict requirements upon the manner in which a child may make a complaint or the manner in which a child may express an 'accusation' or a 'grievance'. As Derrington J said in reference to the above citation in his dissenting decision in R v Robertson ex parte Attorney-General[24]:

In its discussion concerning the response of children the reasoning in the above citation may be seen to be acknowledging the difficulty of what should be expected by admitting a qualification. It suggests a liberal construction of the child's communication so that it may the more readily be accepted to be a complaint or accusation. However this still imports a grievance and it does not make allowance for the case where a mere reporting or a confession of the event by the child might be seen to be a response consistent with the allegation because the child may be too young to have a grievance. In this respect the limitation of admissibility to complaint or accusation may be too restrictive unless it means that the child's communication amounts to a de facto accusation independently of any grievance or intention to mount an accusation. The court did not consider this refinement which was irrelevant in the case before it, but the reasoning behind the general principle was part of the ratio decidendi and its decision on the inadmissibility of mere narrative which has no characteristic of consistency as a response to the circumstances is in conformity with that principle.

In the case of children who might be ignorant of the nature of the offender's conduct or who might generally be overborne by circumstances into a consensual co-operation, it is artificial to speak of consent. However, a child's conduct in making a report of such a matter, not necessarily in the form of a complaint or accusation and even perhaps in response to an open question, may be regarded as so consistent with the occurrence of the offence, because it is said, that it should be admitted into evidence in order to counter any defence submission that it is inconsistent with the happening of the alleged events that the child should say nothing about it. This is to say that the fact of a report of the particular event, as distinct from its contents may, depending upon the circumstances, be seen to be consistent conduct in that children might be expected to make such a report following upon such an event. The contents of the statement should be admitted to show that a statement of that nature was made, not that the contents were true - just as in the case of recent complaint. (Emphasis added).

62 As stated by Hunt CJ at CL in R v Keevers:[25]

The conduct of a victim of sexual assault cannot be viewed from some purely objective standard if his or her credit is to be considered by reference to that conduct. A complaint is the expression of a grievance. It is not expected of a truthful victim that a complaint would be made about something which, by reason of youth, the victim does not know is such as to give him or her cause for grievance. A person who has been sexually assaulted is likely to make a complaint because that person knows that something wrong has been done. (Emphasis added).

On this basis Hunt CJ concluded that in the circumstances of a young child, knowledge of the wrongfulness of the act done by the accused is relevant as to whether a complaint is made at the first reasonable opportunity. He said:

But I do not agree that, in determining whether the victim made a complaint at such first opportunity which reasonably presented itself, his or her understanding of the wrongfulness of the act done by the accused is irrelevant.

**63 In the case before us there is no basis to believe that the complainant had any understanding of the wrongfulness of what she said her grandfather had done to her. Her statement of 28 December 2003 to her mother does not suggest any appreciation of wrongfulness. In the course of her cross-examination the complainant said that in the course of her discussion with her mother at McDonalds on 29 December 2003 she had had a discussion with her mother about 'what was like wrong to do'. She said that her mother had told her that she should 'tell somebody as fast - as quick as you can and just say "No, that's not ok"'.

64 Accordingly, taking into account the age of the complainant the question of her appreciation of whether the conduct was wrong is relevant in consideration of whether she made a complaint at the first reasonable opportunity.

65 Even though the authorities establish that a mere narrative of events which were stated to have occurred may not be sufficient to be seen as a complaint, the question must be determined bearing in mind and giving proper weight to the circumstance that the complainant is a young and immature child, not an adult. It cannot be expected that the response of a small child to a sexual assault will be same as that of an adult. The basis upon which such complaints have been admitted as an exception is as evidence of consistency in the conduct of the complainant with the evidence given by her before the Court.[26]

66 As stated by Hawkins J in Lillyman's[27] case:**

It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness- box ... (Emphasis added).

**67 As all the authorities to which I have referred above make clear the underlying rationale of the doctrine of 'recent complaint' is that such evidence generally discloses conduct which is consistent with the sexual offending of which the complainant has given evidence. Where the complainant is an adult, the application of the principle is not complicated. In such a case where an adult person is a victim of sexual offending, in many circumstances it might be expected that the complainant would express some sense of grievance or make an accusation in respect thereof. If such a complaint is made, it may be seen as being considered consistent with the type of incident described. Where the victim is young and immature as in this case, much must therefore depend upon the circumstances in which the statement of the child was made. Thus the court looks to the circumstances in which the statement was made, including how it came to be made, the terms in which it was made, the circumstances which immediately preceded it, and its mode of expression.

68 In this case it appears to me to be clear that the statement by the complainant that she had a 'silly secret' with the applicant and her statement that the applicant took her to his room and licked her 'pee pee' can be said to be an allegation of sexual misconduct and not a mere narrative of events. That is so notwithstanding the fact that such allegations did not arise in circumstances of the child expressing any specific complaint or grievance or demonstrating any distress. There are two important circumstances which in my opinion elevate the statement made by the complainant to her mother on the evening of 28 December 2003 beyond the category of a mere narrative, into the category of what could be characterised as a 'complaint' by a young child for the purposes of the authorities.

69 First, the statement by the complainant was accompanied by - and indeed sprang from - bizarre conduct on the part of the complainant. Secondly, and allied to that, the complainant explained her conduct as relating to a 'silly secret' she had with the accused. These two matters, essentially interrelated, are well outside the realm of a young child simply narrating a circumstance to her mother. Rather, in combination they are evidence of conduct which a jury would be entitled to find to be entirely consistent with what might occur should a child of that age be subjected to the type of sexual assault which formed the basis of her evidence. In my view the evidence of the statements made by the complainant to her mother on the evening of 28 December 2003 was properly admitted into evidence as evidence of complaint and was not 'mere narrative'.

70 However, it is contended on behalf of the applicant that even if the complaint made on 28 December 2003 was admissible, it was admissible only in relation to counts 1 and 4 on the presentment. It will be recalled that the allegation made by the complainant on 28 December 2003 was that the applicant took his granddaughter into his room where he licked her vagina. The allegations which form the basis of counts 2, 3 and 5 were made the next day and in response to questions asked of the complainant by her mother on that day. I shall return to this submission when I deal with ground 4 of the application.

71 The second argument advanced on behalf of the applicant as to the admissibility of the complaint evidence is that the complaints cannot be said to have been 'recent'. The complaints were made by the complainant to her mother on 28 and 29 December 2003. The evidence was that the complaints related partly to events which were alleged to have taken place between 21 and 23 December 2003 (counts 4 and 5) and to other counts which were alleged to have taken place on one of the other occasions when the complainant was at the home of her grandparents prior thereto, and during 2003. It will be recalled that the evidence of the mother of the complainant was that the two children had stayed overnight with their grandparents on 25 May, 5 September and possibly on 26 November 2003, she having noted such matters in her diary. Thus it is argued that the complaints cannot be called 'recent' and should not have been admitted into evidence.

72 The general rule is that in order for evidence of a complaint to be admissible, it must be made at the first reasonable opportunity.

73 In R v GG[28] Eames JA gave detailed consideration as to the question of when a delay in making complaint would be too long to enable the complaint to be deemed timely. As stated by Eames JA[29]:**

There is no set rule as to when delay is too long to enable a complaint to be deemed "recent".

74 In M v The Queen[30] Gaudron J criticized the presumption underlying the general rule that a complaint must be made at the earliest reasonable opportunity. She said that in cases of sexual assault on a child by a person who has the child's trust and confidence, the general rule is not applicable.[31] This statement was referred to approvingly by Gaudron, Gummow and Kirby JJ in Suresh v The Queen[32]. In their joint judgment Gaudron and Gummow J said:

As Gaudron J explained in M, the assumption that the victim of a sexual offence will complain at the first reasonable opportunity is an assumption of doubtful validity, particularly in cases of child sexual assault.[33]

**75 The circumstances whereby the complainant is a young child who is the victim of sexual assault may be such that delay may be reasonable. A young child may not understand the wrongfulness of an offence or may be much more inhibited than an adult in such circumstances. Furthermore, it is the experience of the courts that it is not uncommon for a child to be told that the sexual conduct is a secret and indeed on some occasions to be told that disclosure should not be made. In Suresh Kirby J observed that a delay of approximately seven months in complaint being made by a nine year old girl was a relatively short interval.[34]

76 In the case before us, the date the complainant first made assertions that the applicant had sexually assaulted her was on the evening of 28 December 2003. Although on that occasion she did not nominate specifically when such assaults were alleged to have occurred, the allegations made by her when interviewed subsequently by police on the VATE tape related to occasions which took place over a period of up to a year earlier, the last allegation relating to matters which she alleged occurred as recently as Tuesday 22 December 2003.

77 The complaint made by her related to a course of conduct, the most recent episode of which was stated subsequently by her to be a mere six days before she told her mother of the 'silly secret' that allegedly she shared with the applicant. At that time the latest episode of that course of conduct was recent indeed. In my view the two statements made by the complainant to her mother were each connected sufficiently temporally to the events to which she referred to be admissible as being recent complaint.

78 However a further submission made by the applicant about the admission of the complaint is that the disclosures lacked spontaneity in that they were extracted from the complainant by her mother.

79 As stated above, on Sunday 28 December 2003 the complainant told her mother of the 'silly secret' she had with the applicant; the silly secret being that the applicant took her to his room and licked her vagina. The evidence of the complainant's mother was that on the evening of 28 December 2003 and whilst she and the complainant were watching television, the complainant started dancing around and pulling her pants up and down. Her mother told her not to be silly. The complainant came over to her mother and started rubbing herself up and down and saying 'does that feel good'. The complainant's mother gave evidence that after that the following took place:**

I said to her where does that come from, because that's not something that we would do and she sort of waved it off. She didn't want to answer it. I said, no, where does that come from, and she's said it's just a silly secret and I said well, we don't have a silly secrets in our family and she said, "oh, it's just a secret, but that I've got with poppy". And I said well, what's the secret and she said. "It's when poppy takes me to his room and licks my pee pee".

80 It will be recalled that on the next day the complainant was taken to the Royal Children's Hospital by her mother, where a medical examination took place. After the examination by the doctor the complainant and her mother went to the McDonald's restaurant at the hospital. The complainant's mother gave evidence-in-chief as follows:

QUESTION: After she had been medically examined did you go somewhere with her ?

ANSWER: Yes, I took her down to McDonald's at the Royal Children's and we had - I ordered her some food, and I just wanted to ask her some more questions, because by this stage, I still hadn't found out a lot about what had happened.

QUESTION: Did she elaborate on what she'd told you the night before?

ANSWER: Well, I said to her, "You know, how often did it happen?" She said her that it happened every time she went to stay or she was - every time she went to stay at poppy's. She said that - she repeated the line that it was when poppy took her to his room and licked her pee pee, and I said, "Well, what else happened?" She said well, she licked his pee pee and he rubbed cream on her and she rubbed cream on him and then they rubbed cream into each other's pee pees.

81 Of course it is obvious that a complaint will not be admissible if effectively it has been put into the mouth of a complainant by questions of a suggestive or leading nature. As stated in R v Freeman, the proper consideration is:[35]

What likelihood there was that the "complaint" was not the spontaneous and unvarnished narrative of the prosecutrix either because the statement had been put in the prosecutrix's mind and mouth by questions of such a character as to have suggested to the prosecutrix the answer she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind?

82 In the circumstances before us there is no basis upon which it can be said that the statements made by the complainant to her mother on either 28 or 29 December 2003 and which were the subject of the evidence-in-chief of the mother were 'extracted' in the manner referred to above. Whilst it is true that the complaint was made in answer to questions asked by the complainant's mother, there is no evidence that those questions were suggestive, intimidating or leading or that she was interrogated in a forceful manner by her mother. As stated in De B v De B[36] the mere fact that a statement is made in response to questions does not rule it out of the category of complaint. Indeed, even if it could be said that the complainant's mother persuaded the complainant to tell her what had happened, as long as she did not do so by asking questions in a leading or suggestive manner, the answers given would not be inadmissible. As Viscount Reading CJ said in R v Norcott:[37]

The Court is concerned to see that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened. That she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected.

**83 In my view there is no basis to say that the statements made by the complainant were inadmissible by reason of having been 'extracted' from her in an inappropriate manner.

84 However, it is further submitted by the applicant that the evidence of complaint made to the mother of the complainant on the evening of 28 December 2003 was 'so coloured by the description of simulation that it ought not to be led'. In my view there is nothing in this submission. The 'acting out' by the complainant was what led to the complaint being made, and inter-related as it was with the statement of the complainant that she had a 'silly secret' with the applicant it was admissible for the reasons set out above.

85 Finally, under this ground it is submitted that even if the complaint made by the complainant to her mother on 28 December 2003 was a complaint which was sufficiently recent to be admissible, the same cannot be said of the complaint made by the complainant on the following day. Evidence that a second complaint has been made is not inadmissible merely because there is evidence that a prior complaint has been made. R v Freeman is an example of a case where two separate complaints were held to be admissible. However, it is submitted that it cannot be said that the disclosures of the complainant to her mother on 29 January 2003 were made at the first reasonable opportunity. It is argued that the disclosures of that day were preceded by an 'extracted' disclosure the day before and furthermore by the examination by a doctor who 'failed' to 'extract more information' from the complainant.

86 In such circumstances it is argued that the complaint cannot be seen to be either spontaneous or recent. In particular it is submitted that insofar as the disclosure by the complainant on 29 December 2003 of the use of cream is concerned, such disclosure could relate only to counts 2 and 3, which alleged events, on the evidence before the jury, must have occurred at least a month and perhaps six months earlier than the disclosure.

87 The question of the admissibility of the statement made by the complainant to her mother on 29 December 2003 is not without difficulty. It may be the case that if the complainant had been a mature adult the evidence of that statement having been made on the day following the first complaint may not have been admissible as having been made at the first reasonable opportunity after the alleged offence. However, in my view it is necessary to take into account the age and immaturity of the complainant and the fact that she expressed the events which she reported to her mother as being 'a secret'. The issue to be considered in such circumstances is whether the statement made to her mother on 29 December 2003 is connected sufficiently to the statement made on 28 December 2003 so as to form part of that complaint. Had it been the circumstance that some hours after the original complaint, the mother had undertaken the conversation which in fact occurred on 29 December 2003, I would conclude that the second conversation formed part of the complaint. Indeed had the mother 'slept on' what had been reported to her by her daughter and discussed it further with her daughter early the next morning I would have concluded in circumstances where the evidence is that such statements were not the result of suggestive or leading questions, that it would be admissible. I would conclude that on the basis that taking into account the age and immaturity of the complainant and the circumstances in which the alleged conduct of the applicant was revealed, it could be seen as part of the complaint of the previous day.

88 However, the question of the admissibility of the statement made by the complainant on the morning of 29 December 2003 and after the medical examination of the child by a doctor is more finely balanced. It would be natural for a mother having received the first complaint to have her daughter examined medically soon afterwards and it might be understood readily that she would ask further questions of the complainant to elucidate the complaint first made. Nevertheless I conclude that in the particular circumstances of this case there is a sufficient nexus both in terms of the context of the statements and in their temporal relationship to each other to render the second statement an admissible 'complaint' in the sense discussed above.

89 It is appropriate to observe that counsel for the applicant made no submission to the trial judge that the complaints made on either 28 or 29 December 2003 not be admitted into evidence. In the first trial before Judge Kelly, the issue of the admissibility of the complaint evidence was first raised with his Honour by the prosecutor. In the course of discussion with the prosecutor, Judge Kelly expressed what he called his 'tentative belief' that the evidence of the statements made by the complainant to her mother was admissible 'because of its tendency to bolster the complainant's credit'. Counsel who was then appearing for the applicant, and who I might add is a most experienced criminal trial advocate, then said 'I object to it being a complaint'. He said that he relied upon R v Knigge and he submitted that the present case was 'on all fours with Knigge's case'. Having made that submission, counsel for the applicant then said:**

A lot of it is going to come out in evidence in any event, I suppose ...

Your Honour, I think some of the things that she has said prior will come out, but as to how it can be used is a different thing.

**90 Apart from the above statements of counsel for the applicant, no further submission to the effect that the statements in question were inadmissible was made at any time before his Honour Judge Kelly.

91 As stated above [55] his Honour ruled that the evidence of conversations between the child and her mother was admissible. Furthermore, and as stated above, no objection was taken to the admission of the complaint evidence in the subsequent trial, the trial judge being told by counsel for the applicant that there was an agreement to 'abide by Judge Kelly's rulings'. Indeed, a reading of the whole of the transcript of the second trial demonstrates that a forensic decision was taken by counsel to attack the credibility of the evidence of the complainant by detailed cross-examination of the mother as to what the complainant had said to her. In particular the cross-examination of the mother as to what the complainant had said to her went far beyond the matter referred to by her in her evidence-in-chief as to what she had been told on the evening of 28 December 2003 and at McDonalds on 29 December 2003. The mother of the complainant was asked numerous questions about what she had been told by the complainant and about what she said in her statement to police about such matters. Indeed, the major part of the cross-examination of the mother consisted of questions related to what discussions she had had with the complainant or to what she said in her statement and what she told police about such discussions. No doubt those circumstances explain why experienced counsel for the applicant did not make any submissions to the trial judge seeking the exclusion of evidence of the discussions had between the complainant and her mother on either 28 or 29 December 2003. The cross-examination of the mother on the occasion of the second trial (and for that matter on the occasion of the first trial) was entirely consistent with the statement made by the applicant's counsel to Judge Kelly that 'a lot of it is going to come out in evidence anyway'. No doubt careful consideration was given to this matter by the experienced counsel who acted for him on his trial. The fact that the trial was conducted in this manner fortifies the relevance of the fact that no exception was taken by counsel to the admission of the complaint evidence.**

**92 The applicant contends first that the trial judge should have directed the jury that the evidence of complaint made by the complainant to her mother on 28 December 2003 could be relevant only to count 4. It is submitted that the trial judge should have directed the jury that the evidence of complaint was not relevant to any of the other counts. This submission is made on the basis that any complaint about sexual behaviour prior to those dates would not be recent and furthermore on the basis that the statement made to the mother on 29 December 2003 should not have been admitted into evidence. In my view the complaints made by the complainant related to a course of conduct which could well be considered to be sufficiently recent to be admissible. The trial judge was not bound to direct the jury that the evidence of complaint could bolster the complainant's credit only in relation to count 4 and not otherwise.

93 Secondly, under this ground, the applicant submits that the trial judge's directions as to the evidence of recent complaint were deficient. It is submitted that his Honour failed to direct;

(i) that it was for the jury to determine whether the complaint was made, and, if so, whether it was consistent with the complainant's account of the events giving rise to count 4;

(ii) that such evidence does not provide evidence of the facts stated in the complaint;

(iii) that it does not in any way at all assist to prove the truth of the facts alleged;

(iv) that those facts must be proved by other evidence; and

94 The trial judge told the jury that the evidence of complaint existed for a 'limited purpose'. He directed the jury that the evidence -**

may be used by the jury as a possible test of consistency of the victim's conduct. Whether the alleged victim complained or did not complain of the sexual assault at or near the time of its alleged occurrence may be regarded by a jury as evidence bearing upon the credibility of the alleged victim and now complaining of it.

It is for you to say in any particular case whether in all the circumstances the presence, or it may be the absence of, a timely complaint constitutes behaviour consistent or inconsistent with the happening of the offence.

In considering the evidence of complaints, you should bear in mind that, of course it springs from the same source as the evidence of the crime. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of the complainant giving additional support to the probability that the crime happened. Its only effect is on the credibility of the alleged victim's story.

96 His Honour repeated this direction later in the charge when he summarised the evidence which was relevant to counts 1, 2 and 3. He said:

The Crown also rely on the evidence of the complaint made by [C] to her mother for the very limited purposes that I have already mentioned to you as a possible test of consistency of [C's] conduct, and you will remember the very clear warning that I gave you about the use of evidence of complaint. Such evidence may not be regarded by you as evidence independent of the complainant, giving additional support to the probability that the crime happened. Its only effect is upon the credibility of the alleged victim [C's] version of events.

97 In the course of his separate summary of the evidence relating to counts 4 and 5 his Honour said:

Again the Crown would no doubt rely on the evidence of complaint made by [C] to her mother and again I remind you of the warning that I have already given you as to the limited use you can make of complaint evidence. ...

**98 It is true that the directions given by the trial judge as to complaint were not as comprehensive as the standard charge in relation to recent complaint now provided for the assistance of trial judges by the Judicial College of Victoria. However, his Honour's directions did deal with the essential issues, namely, that it was for the jury to determine whether or not the complaint was made, and secondly that it was for the jury to determine whether or not any complaint made was consistent with the events complained of by the complainant. Furthermore the judge reminded the jury repetitively of the fact that the evidence of complaint was relevant only to the credibility of the complainant and could not be used for any other purpose. In all the circumstances, and accepting that the criticism by the applicant of the directions given by the judge is not without some substance, I do not consider that any deficiency in the directions was such as to amount to a miscarriage of justice. As stated above, experienced counsel raised no exception to the directions given by his Honour as to the evidence of complaint.

99 It is submitted on behalf of the applicant that the VATE tape of the interview of the complainant should not have been admitted into evidence, or in the alternative, that the tape should have been edited to remove certain parts of it.

100 As stated above, at the commencement of the first trial of the applicant an objection was taken to the admission of the VATE tape into evidence. The evidence before the judge on the first trial was that the informant, Senior Constable Sutherland, was first notified of the allegations made against the applicant on Wednesday 31 December 2003. Senior Constable Sutherland first spoke to the complainant and her parents on that day. The evidence of the complainant which forms the subject of the VATE tape took place at Sunshine police station on Tuesday 6 January 2004. It is apparent from the context of the VATE tape interview that the informant and another policewoman had attended at the complainant's home on the previous Saturday and had spoken to her at that time. The complaints made about the VATE tape by counsel for the applicant before Judge Kelly were that in the course of the interview of the complainant Senior Constable Sutherland referred to a previous conversation between her and the complainant, which had occurred on the previous Saturday. Furthermore, it was submitted that some questions asked of the complainant were ingratiating and that some questions asked of the complainant were leading, and would thus be inadmissible in the context of a court hearing. Judge Kelly ruled that the VATE tape was admissible. He said that he could not 'discover anything which would permit the exercise of my discretion to exclude the material as unfair'.

101 Upon the proceeding coming on for the trial on the second occasion, counsel for the applicant said that he 'formally objected to the use of the VATE tape', but said that he would 'abide by his Honour Judge Kelly's rulings of the last trial'.

102 By written submissions, counsel for the applicant submits that the whole of the VATE tape should not have been admitted into evidence before the jury. First, it is argued that the making of the complaints had been 'extracted' from the complainant. It is submitted that the evidence revealed that the complainant had been reluctant to answer questions from her mother and from the examining doctor at the Children's Hospital and from police. It is submitted that it was 'unsafe to rely upon a tape of that nature' in such circumstances. In R v NRC[38] Winneke P observed that s 37B of the Evidence Act 1958 formed part of a number of statutory procedures introduced in Victoria and which have 'as their primary purpose the reduction of stress imposed upon victims of sexual offences by the rigours of curial proceedings'.[39] In NRC the evidence was that the complainant had been interviewed more than 40 times in a 10 month period leading up to the recording of the VATE tape interview. There were a number of unsatisfactory aspects to the interview including the use of both 'prompting and leading' questions. Winneke P stated that:[40]**

... the procedure prescribed by s 37B of the Evidence Act ... permits the evidence-in-chief of young children to be presented as a "pre-recorded package" and without the witness having been sworn or her giving evidence viva voce in the face of the jury. These procedures represent a radical departure from the common law and, although the court is required by s 23(1) of the Act to satisfy itself that the witness is (inter alia) capable of responding "rationally" to questions about the facts in issue, that satisfaction will normally be gleaned in circumstances of limited opportunity and without the capacity of observing the witness' ability to respond to cross-examination. The aim of the subsection is not to ensure that the evidence is credible but rather to ensure that it meets the minimum threshold of being receivable, a threshold which is not a high one.

103 It was not suggested in NRC that the VATE tape was inadmissible. However by reason of the particular circumstances in which the evidence was obtained and in particular by reason of the fact that the complainant's account was unable to be tested properly in cross-examination by reason of the inability of the witness to provide responsive answers in the course thereof, the Court held that an appropriate judicial direction was required in order to alert the jury to the potential unfairness to the accused emanating from his inability to probe the credibility of the complainant's version of events. It is not suggested that such a direction was required to be given in this case by the trial judge. Upon the hearing of the appeal before us, and notwithstanding that his written submission contends that the VATE tape should have been wholly excluded, counsel for the applicant conceded that NRC posed a 'big hurdle' to that contention. In his oral submission, he stated that he does not maintain that the VATE tape should have been wholly excluded but he does submit that certain parts of the tape should have been excluded. In particular he submits that questions and answers 42-52, 161-165 and 353 should have been deleted from the tape. As stated above the VATE tape interview was recorded at Sunshine Police Station on Tuesday 6 January 2004. It is apparent that police had had a preliminary discussion with the complainant in her house on the preceding Saturday 3 January 2004. Question 42 referred to that discussion in the following terms:

All right. I know its hard, but we need to try and talk about what we talked about again in the bedroom.

Yeah, what was it that we were talking about, about poppy?

105 Likewise at question 161 reference was made to a previous conversation:

All right, there was a couple of other things we spoke about at your house on Saturday, things that poppy had done.

106 Although these questions were prompting, they cannot be said to be leading nor did they suggest an answer. A somewhat more leading question was put at question 353:

Okay. All right. And do you remember that you told me about the cream on Saturday when I was at your house?

The answers to such questions were generally non-responsive and of no great importance, but the applicant submits that in referring to previous statements made by the complainant the questions of the interviewer were 'apt to bolster the complainant's evidence illegitimately'. Presumably this submission is directed towards the credibility of the complainant rather than to her evidence generally.

107 There can be no doubt that the jury were aware of the process which led up to the recording of the VATE tape on 6 January 2004. The evidence-in-chief given by the complainant's mother as to the complaints made to her by C was in brief compass as set out in [79-80] above. However in the course of cross-examination the complainant's mother was cross-examined in considerable detail about the events which followed the complaint made by C on the evening of 28 December 2003. It was put specifically to the mother that two police officers had attended at her home on 3 January and that they had taken the child into the mother's bedroom and had a private conversation with her. Although it would have been better had the complainant not been prompted in any way to recall previous conversations I do not consider that the questions asked did have the effect of bolstering the credit of the complainant. Indeed, her non-responsive answers may well have had the opposite effect. Whether or not that be so, the interviewing police officers did not set out in any detail at all what had been said previously and in my view there is no basis upon which it can be argued that the questions in issue had the effect of introducing impermissibly into evidence prior consistent statements of the complainant. In my view ground 5 is not made out.

108 It is argued under this ground that an aggregate of the errors identified in grounds 1 to 5 caused the trial to miscarry. A ground similar to this was considered by Callaway JA in R v Gell.[41] As stated above, I do consider that the cross-examination of the applicant referred to under ground 1 exceeded permissible limits. I also consider that his Honour's directions to the jury as to recent complaint were somewhat more sparse than is appropriate. However I do not consider that these two matters considered together can be said to have caused the trial to miscarry.

**109 Finally it is contended on behalf of the applicant that the verdicts of guilty on counts 1 and 3 are unreasonable and unsafe. It is submitted that no reasonable jury properly instructed could have been satisfied beyond reasonable doubt of the applicant's guilt in view of the evidence before the jury. In particular the applicant relies upon the jury's acquittal of the applicant upon counts 2, 4 and 5, the absence of corroboration, the complainant's age at the time of the alleged offences and at trial, the sworn evidence of the applicant and his good character.

110 Dealing first with the question of the acquittals, in the light of the evidence called as to the lack of opportunity for the applicant to have committed the offences alleged to have occurred between Sunday 21 December and Tuesday 23 December 2003 it is apparent that the jury entertained a reasonable doubt as to whether the offences the subject of counts 4 and 5 were proved before them. Furthermore in relation to count 5 it should be observed that in the course of her cross-examination C agreed that she did not lick the penis of the applicant on the occasion of the weekend in question. The trial judge gave the jury a careful direction about this matter and made a strong comment. He said:**

Now, in respect of count 5 the Crown case is that on a date between 21 December 2003 and 23 December 2003 that he had [the complainant] lick his penis. The accused has given evidence that this never happened and as you are aware he has pleaded not guilty to count 5. When you consider this evidence, of course, you must consider the VATE tape of [the complainant] and you must also consider the cross-examination of [the complainant]. [The complainant] it seems to me, and I stress it is entirely a matter for you, but in respect of count 5 she gave evidence to the Court that on this last occasion, that's the subject of count 5, she did not lick the accused's penis. The only activity that day was the accused licking her vagina. That is of course, count 4 which relates to the licking of her vagina on that day and she gave evidence that on that day she hadn't licked the accused's penis which was the subject of count 5.

Of course, whether or not you accept any part or parts of her evidence when you consider count 5 is entirely a matter for you, the jury. My task is merely to point out that in cross-examination [the complainant] stated that on that last occasion she had not licked her grandfather's penis. If you were to accept her evidence in that regard it follows then, it is entirely a matter for you, but it seems to me it follows then that you could not find the accused guilty in respect of count 5.

**111 Taking into account the evidence of the complainant, the acquittal of the applicant on count 5 is entirely explicable.

112 Likewise, in relation to count 2 the judge gave a careful direction. He said as follows:**

Now members of the jury it is a matter of commonsense that you take great care when considering each count in this criminal trial. What I am about to say to you now is a comment on my part and, of course, you are not bound by it. However it seems to me that you should take particular care when considering counts 2 and 5, counts 2 and 5. Count 2 relates to the allegation that on an occasion between 22 December 2002 and 20 December 2003 the accused, ... applied cream to [the complainant's] vagina. The accused, you will recall, has denied doing that or, indeed, any act of a sexual nature with his granddaughter. The complainant in her evidence during cross-examination gave evidence that her grandfather had never applied cream to her vagina. She said that she had applied the cream to her own vagina. She stated that she applied it to her own vagina in the presence of her grandfather who then had his pants down. Were you to accept her evidence in this regard, and I stress that whether you do or not is entirely a matter for you, you would be unable to find that the accused had applied cream to [the complainant's] vagina. But it would be open to you to find that the accused ... had committed an indecent act in the presence of [the complainant] when she rubbed cream into her own vagina in his presence when he had his pants down.

Of course, whether you do so or not is entirely a matter for you, bearing in mind that the Crown must prove each of the elements in count 2 beyond reasonable doubt. You should remember that the accused has pleaded not guilty to count 2, as indeed to all the counts, and has given evidence that the events alleged never happened.

In my view, taking into account that the Crown laid count 2 on the factual basis that the accused had applied cream to the complainant's vagina and that that basis was not supported by the evidence of the complainant in cross-examination, it is not surprising that the jury acquitted the applicant of that count.

113 However it is submitted further that the guilty verdicts on counts 1 and 3 are an affront to commonsense and logic and that those verdicts reflect confusion and uncertainty in the minds of the jury members. I do not agree. As stated above, the basis of the acquittals on counts 2, 4 and 5 is apparent. On the other hand the jury were entitled to accept the evidence of the complainant that on occasions other than the weekend of 21 to 23 December 2003 and between 22 December 2002 and 20 December 2003 the applicant had licked her vagina, which allegation formed the basis of count 1 and furthermore they were entitled to accept the evidence that during the same period she had applied cream to the penis of the applicant. It is argued on appeal that the evidence was uncertain as to which alleged occasion was the subject of the allegations which formed the basis of counts 1 and 3. In the course of the VATE tape interview, C said:

One day when I went to poppie's he asked me if - if I could put the hand on his pee pee ... and then he would wee out and it will be fun. And I said "no" so I would not do it. And this whole thing is about him licking my pee pee, licking ...

114 Later on the interviewer asked 'How did that happen?' She replied 'I can't really remember, 'cos he started it lots and lots of years and I can't remember how it happened'. She then made a specific allegation that the applicant had licked her vagina on the last occasion that she had seen him which she said was 'six days ago', and shortly before her brother, N, entered the applicant's bedroom. She also said that the applicant had put cream on his finger to wipe her pee pee. Those allegations were the subject of counts 3 and 4 on the presentment. She was then asked by the interviewer about the 'second-last' time 'that had happened'. She said that she was 'in poppy's room, like every day'. She said he licked her 'pee pee, put the cream on, then we went out of the room'. She gave a detailed description of the cream which was used, the colour of the writing on the tube and the fact that the cream had come from a basket in her grandparents' bathroom next to the sink. She described the basket and its contents in some detail. It should be noted that no evidence to the contrary was given by either the applicant or his wife as to this matter, nor was the complainant challenged in cross-examination as to the whereabouts of the tube of cream and the basket in question. Referring to the last weekend that she and her brother had stayed with the applicant, C then said that after he had licked her 'pee pee' the applicant went to the basket and got the cream and it was then rubbed 'on each other's pee pees'. During cross-examination of the complainant counsel for the applicant asked as to whether that was the first time that the applicant had 'done that with the cream'. C's answer was 'He's done that to me about 50 times'. C was cross-examined about these statements as follows:

QUESTION: In the general sense of these sort of things happening, did they always happen in that house at Cairnlea?

QUESTION: You know, him licking your pee pee or you licking his pee pee. You talked about cream being rubbed in.

QUESTION: Did that always happen in Nanny and Poppy's new house at Cairnlea.

QUESTION: Did it only happen when you were staying there overnight?

ANSWER: I'm not too sure about that. I think he's done a couple of times during the day without staying over.

QUESTION: When was that? What were the circumstances?

ANSWER: As I said before, I'm not entirely sure that it did happen but I'm not entirely sure that it didn't happen as well so ...

QUESTION: Is there a chance that he didn't ever lick your pee pee?

HIS HONOUR: Counsel is putting to you that he never licked your pee pee.

ANSWER: That's not true, he has licked my pee pee before.

ANSWER: He has licked my pee pee before as well. I'm not telling a lie.

QUESTION: Are you able to tell us anything about the circumstances the first time that it happened?

ANSWER: Ok, I don't know the first time that he did do it to me.

QUESTION: Tell us the first time that you can remember.

ANSWER: The first time I can remember was ... I can't remember the date but we nearly got caught out by Nan because we had gone to ... she had gone into the shops for an hour or two hours or in between that and we had the blinds shut but then we heard Nan's car pulling into the driveway and then we pulled up our pants and ran out and made the bed. We made the bed. Wait, sorry. We pulled up our pants, we made the bed and then ran out.

QUESTION: When did that happen? How long before what you've told us about today?

ANSWER: As I said I don't know the date but I know when it was around.

ANSWER: I'm pretty sure it was around, it was in the year 2003, I think it was around June. June or July.

HIS HONOUR: Just a second, just a second. You've asked a question ... let her answer it.

ANSWER: It wasn't on a school day but I think it was on a Saturday.

QUESTION: Could it have been, if it was in June or July, could it have been during the school holidays?

ANSWER: Yes that as well, could have been around the school holidays.

115 The next day C was asked further questions:

QUESTION: When we finished yesterday I was asking you if you could remember when the first time it was that you say that Poppy licked your pee pee.

ANSWER: Well, as I said yesterday I remember the ... I can't remember the first time it happened but I can remember the closest I can remember to the first.

QUESTION: You tell us what's the first time you remember.

ANSWER: As I said yesterday it was happening and Nan was pulled into the driveway and we heard her car and ...

QUESTION: I think she said Nan pulled into the driveway.

HIS HONOUR: Your Nan pulled into the driveway in her car, was it?

ANSWER: And then we pulled up our pants, made the bed and ran out.

QUESTION: All right. Now I asked you yesterday and you said it was on a day when you didn't have to go to school.

QUESTION: Have you thought about this since we finished yesterday?

ANSWER: Actually I have but I can't remember the day.

QUESTION: I asked you yesterday whether it might have been during the school holidays. Is that ...

QUESTION: And you said you weren't sure whether it was or wasn't.

QUESTION: We went through the times that you'd stayed overnight at your Nan and Pop's place.

QUESTION: Are you able to tell us whether there were any other days when you went there? Let's say you went there in the morning and stayed for the afternoon and then went home.

ANSWER: We did that a couple of times, yes. Well not a couple but a lot of times.

QUESTION: Were you able to tell us how many times that happened?

ANSWER: It was a lot of times, I can tell you that.

ANSWER: A lot of times, around 20 or something like that.

QUESTION: And on those occasions was it always on a day when you didn't have to go to school?

ANSWER: I think some of them ... I think some of them were after school.

QUESTION: Well if you went there after school but didn't stay the night you couldn't have stayed for very long could you?

116 The complainant was then asked the following questions:

QUESTION: There is some evidence on the tape about you having cream rubbed into your pee pee.

ANSWER: Well I can't tell you the specific date but it happened, well often, I can say.

117 Subsequently in the course of cross-examination the following exchange took place:

QUESTION: Now there's talking on the tape about you rubbing cream on poppy.

ANSWER: Sorry, I'm not really good with dates. No, I'm not really that sure - but the, sorry - I rubbed the cream in much more than I would rub his cream in, so I would do it more often.

HIS HONOUR: Ok, just tell us in your own words, just try and relax and tell us in your own words.

ANSWER: I wouldn't, he would do it. Sorry, I'll start again. I would have cream rubbed into my pee pee more often than he would have cream into his pee pee.

118 Subsequently counsel asked the following questions in cross-examination:

QUESTION: Can I suggest to you that you're not sure whether you ever rubbed cream onto him; would that be right?

HIS HONOUR: Whereabouts on the house, or whereabouts on the body?

QUESTION: Whereabouts on the body, yes sorry your Honour.

119 Subsequently the following cross-examination took place:

QUESTION: He never rubbed cream of any type, medicine or other type, into your pee pee.

QUESTION: Can I suggest to you that you never rubbed cream onto his pee pee either.

QUESTION: I suggest to you that he never ever licked you on your pee pee.

**120 Accordingly, from the evidence of the complainant it was clear that she alleged that on a number of occasions during the periods alleged in relation to counts 1 and 3 the applicant had engaged in licking her vagina and that he had her put cream on his penis as so alleged by those counts respectively.

121 However, the applicant submits that a further factor to be considered in regard to the verdict being unsafe is the evidence given by the applicant's wife as to whether or not the complainant was ever alone with her husband. In the course of the cross-examination of the applicant's wife she was asked the following questions:**

QUESTION: Was there ever a time when the children were alone with your husband?

ANSWER: No, never, because I was missing them so much having had full-on contact for five years with each of them, suddenly then to be basically deprived of seeing them or talking to them, I took every opportunity to spend as much time with them as I was allowed and so no, I devoted the time I had with them to them and what they wanted to do or say or whatever.

QUESTION: On the last visit, the visit in December 2003.

QUESTION: Apart from the time between you leaving at 8.40 and coming back at 1.20 you obviously can't tell us what happened in that time in the house, but apart from that period was there ever a time when your husband was alone with the children in the house?

**122 However it was open to the jury not to accept this evidence. For instance there was a significant inconsistency between the evidence of the wife of the applicant and that of C and N and indeed the applicant as to the events of the afternoon of 23 December 2003. The applicant's wife said that the applicant had had 'a nap' in the afternoon and that she and N and C were in the family room making coleslaw when the applicant arose and came into the family room. Of course the applicant gave evidence that he had been woken by C and that at that time his wife was watching television in the lounge room with N. There was a clear inconsistency between this evidence and that of the applicant's wife and the jury were not bound to accept her evidence as set out above.

123 However, the applicant relies further upon the fact that there was evidence of 'bad relations' between the complainant's mother and the applicant. The jury were well aware of that matter, it having been raised by counsel for the applicant in his response to the prosecution's opening address.[42] As stated above, the complainant's mother was cross-examined by counsel for the applicant as to the issue of animosity.

124 In addition the jury were well aware of all the other matters relied upon by the applicant under this ground such as the age of the complainant, the applicant's sworn evidence, his previous good character, and the evidence of his wife and others. They had the benefit of seeing the complainant being cross-examined in considerable detail. Nevertheless it is submitted on behalf of the applicant that upon a review of the whole of the evidence this Court should entertain a doubt about the applicant's guilt, and that the verdict should be set aside. In answering that question the Court cannot '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'.[43] Having viewed the VATE tape myself on several occasions, I conclude that it was open to the jury, having considered each of the matters referred to above, and which matters were the subject of submission by the applicant's counsel, to be satisfied beyond reasonable doubt of the guilt of the applicant on counts 1 and 3. In my view there is nothing inconsistent with such a finding in the acquittal of the applicant on counts 2, 4 and 5. It was open to the jury to be satisfied beyond reasonable doubt that on an occasion prior to the weekend of 21 - 23 December the applicant had committed the offence the subject of counts 1 and 3 upon the complainant, notwithstanding that they were not satisfied beyond reasonable doubt that he had done so on that weekend.

125 I might add that it cannot be said that the jury came lightly to this verdict. They retired to consider their verdict at 11.51 am one morning, were sent home for the evening, returned the next morning and finally returned a unanimous verdict on all five counts at 2.25 pm that afternoon.

126 As Brennan J (as he then was) said in his dissenting judgment in M v The Queen:[44]**

The evidence in the trial reveals no feature on which a court's assessment should prevail over the assessment made by the jury. It is the jury's composite and broad experience of life that is paramount in our structure of administering criminal justice. Words in a printed transcript may tell one story to the critical legal mind and another to those who test a story for truth or falsehood according to a broad experience of life. Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting to tell the truth. It is the sad but salutary experience of every counsel for the defence that the prosecution's "weak point" is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness. .........

On a matter as difficult as child sexual abuse where the focus of the trial must be on the veracity of the child and where both child and alleged aggressor give evidence, an assessment of evidence by an appellate court is a poor substitute for the assessment made by the jury. And that is so for a very basic reason: our belief in the validity of the life experience of juries. When, as in this case, a finding of guilt or innocence depends on nothing but a contest between a child and her father as to what happened between them in the absence of others, I am unable to substitute any view that I might form for the view formed by the jury. Indeed I echo the frequent observation of trial judges that the responsibility rests with the jury and not with me.

In my view that statement is relevant in the circumstances of the present application.

**127 The application for leave to appeal conviction should be refused.

128 I turn now to the application for leave to appeal sentence. The applicant relies on three separate grounds alleging error and a fourth ground of manifest excess.**

129 In the course of his sentencing remarks the learned sentencing judge stated that counts 1 and 3 were 'not isolated acts ... but were rather part of a continuing pattern of abhorrent behaviour ... towards the complainant'. It is submitted on behalf of the applicant that the sentencing judge was in error in doing so. It is argued that in making that statement the sentencing judge was relying upon the evidence before the jury of uncharged acts and that his Honour adopted an approach which cut across the principle that a person must not be sentenced for offending in respect of which he has been neither tried nor convicted. Furthermore, it is argued that his Honour dealt with both counts as if they were representative counts. It should be observed that his Honour, having made the above statement, continued with the following statement:

The Court mentions this matter merely for the purpose of better understanding your offending in respect of counts 1 and 3.

**130 Clearly his Honour was entitled to conclude on the basis of the evidence before him that the offences were not isolated in the sense that such a finding would be mitigatory. Equally clearly his Honour was obliged to sentence the applicant in relation only to the counts upon which he had been convicted by the jury and not for other offending.

131 It may well have been that his Honour intended no more than that he was unable to find that the offending of the applicant was isolated in circumstances where there was evidence of uncharged acts against the applicant, but the use of the words 'a continuing pattern of abhorrent behaviour' certainly suggests that his Honour may have fallen into the error as submitted by the applicant. However if his Honour did make such an error it appears to me that the sentence imposed does not reflect any such error. I shall return to further consideration of this matter later.**

132 In the course of his sentencing remarks the sentencing judge stated as follows:

This Court has read the victim impact statements, exhibits A and B on plea. It is the view of this Court that major portions of such statements are largely irrelevant for present sentencing purposes and, as such, those portions have been ignored by this Court. While this Court is acceptant of the fact that some unhappy differences pre-existed between you, your daughter and her husband by reason of a business dispute, the Court has no doubt whatsoever that your offending has caused significant psychological and emotional problems to your granddaughter, to your daughter and to a lesser extent your son-in-law and to your grandson. This Court has taken into account the admissible portions of the victim impact statements when sentencing you.

133 Counsel for the applicant submits that there was no evidence to support the findings that the complainant, and to a lesser extent her brother, had suffered significant psychological and emotional problems in consequence of the offending of the applicant. It is true that there was no direct professional evidence before his Honour as to the psychological effects of the offending upon any of the persons named by him. However he had seen C and her mother give evidence before him. As an experienced trial judge he was entitled to conclude from the circumstances, including his observations of both those persons as they gave evidence before him, that the offending of the applicant had caused them psychological and emotional distress. Furthermore it is apparent that when he said such problems had affected the applicant's son-in-law and grandson to a lesser extent, he was speaking of the anguish caused to the whole family. As he said next:

Indeed, the Court has no doubt that your offending has caused great anguish to many members of your extended family. There are always so many other innocent victims in such as a situation as sadly here exists. Offenders often tend to overlook the ripple effect that invariably occurs when offending of this nature is discovered.

134 In my view his Honour was not in error in making the statements made by him in this regard.

135 By ground 3 it is contended that the sentencing judge was in error in stating that he 'could not confidently say that [the applicant] would not reoffend in a like manner' and that 'aspects of specific deterrence and public protection must also be a relevant sentencing consideration'. It is argued on behalf of the applicant that given his age of 65 years at the time of sentence, his lack of prior convictions, his family support and the fact that he had been charged with these offences, it was not open to reach such a conclusion, nor was it open to give such weight to specific deterrence and community protection. Regrettably the experience of this Court is that age and family support do not appear to be relevant factors in preventing the commission of such offences in an intra-family setting. In the case before his Honour there was no evidence of remorse by the applicant. In my view the sentencing judge was entitled to conclude that specific deterrence and public protection were sentencing principles of relevance. The conclusion reached by the sentencing judge that he could not say confidently that the applicant would not reoffend was not, in my view, a 'damning finding' as is submitted by the applicant's counsel. Read properly, it was no more than a statement that the judge was not able to make a positive finding that the applicant would not reoffend in the future. That finding was open to him.

**136 In support of the argument that the individual sentences imposed, the resulting total effective sentence, the order for cumulation and the non-parole period fixed were all manifestly excessive, the applicant relies upon a number of factors. It is submitted that the facts that both offences occurred as part of the one incident, the applicant was aged 65 and had some health problems, and the fact that he had no prior convictions and had a history of hard work are of particular relevance. In addition, reliance is placed upon the prospects of rehabilitation of the applicant and the degree of family support that he has, in order to demonstrate that there is manifest excess in the structure and in the total effect of the sentences imposed.

137 In my view the sentence imposed cannot be said to be manifestly excessive. The applicant was in a position of trust of a child of tender years. The judge was entitled to find that he was not remorseful. Each offence was a serious example of the offence of committing an indecent act with a child under the age of 16 years. The sentence imposed upon each count was 20 per cent of the applicable maximum. The**

cumulation of one year is not excessive, nor is the head sentence nor the non-parole period fixed.

138 I would refuse the application for leave to appeal sentence.

**139 I have had the advantage of reading the draft judgment delivered by Kellam JA and Neave JA and for the reasons given by both my colleagues, I would dismiss the application for leave to appeal against conviction and sentence.

[1] [2003] VSCA 94; (2003) 6 VR 181.

[5] [1998] HCA 23; (1998) 72 ALJR 769, 779 referring to (1996) 16 WAR 23, 26. (Emphasis added)

[6] The length of the reporting period pursuant to s 34(1)(v)(ii) of the Sex Offenders Registration Act 2004 is 15 years.

[7] Section 37B of the Evidence Act 1958 was introduced into Victorian legislation by s 11 of the Crimes (Sexual Offences) Act 1991 and provides that in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence - 'the evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with impaired mental functioning or is under the age of 18'. The section also provides that subject to the trial judge's discretion to rule all or part of the contents of the recording as inadmissible, it will be rendered admissible provided that a copy of the transcript of the recording, adheres to that section's service requirements and that the defendant and his or her legal practitioner are given reasonable opportunity to listen to and/or view the recording. The complainant, a child, is placed in a remote witness facility (section 41E of the Evidence Act 1958) and after his or her competency to give evidence has been assessed and accepted by the trial judge (section 23 of the Evidence Act 1958) he or she can then give further evidence-in-chief and be cross-examined.

[8] [1999] VSCA 184; [1999] 3 VR 537.

[9] It will be recalled that in the course of cross-examination the complainant agreed that the applicant had not applied cream to her vagina on any occasion.

[10] It will be recalled that in cross-examination the complainant agreed that she did not lick the penis of the applicant on the occasion that she stayed with her grandparents between 21 and 23 December 2003.

[11] Palmer v R [1998] HCA 2; (1998) 193 CLR 1, 7 and 25; R v Buckley [2004] VSCA 185; (2004) 10 VR 215; R v Bajic [2005] VSCA 158; (2005) 12 VR 155.

[13] [2007] VSCA 201.

[15] [2007] VSCA 276.

[17] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

[18] Zoneff v The Queen (2000) 200 CLR 234.

[19] [2003] VSCA 94; (2003) 6 VR 181.

[21] R v Saragozza [1984] VicRp 15; [1984] VR 187, 198.

[22] De B v De B [1950] VicLawRp 44; [1950] VLR 242, 246.

[24] [1991] 1 QB 262, 269-270.

[25] New South Wales CCA (unreported) 26 July 1994 Cor Hunt CJ at CL, Curruthers and Bruce JJ.

[26] Philby v R [1973] HCA 30; (1973) 129 CLR 460, 466 (Barwick CJ).

[27] [1896] 2 QB 167, 170.

[28] [2004] VSCA 238; (2004) 151 A Crim R 92.

[30] [1994] HCA 63; (1994) 181 CLR 487.

[32] [1998] HCA 23; (1998) 102 A Crim R 18.

[35] [1980] VicRp 1; [1980] VR 1, 5.

[37] [1917] 1 KB 347, 350.

[38] [1999] VSCA 184; [1999] 3 VR 537.

[41] [2006] VSCA 255, [6].

[42] See [37] above.

[43] M v R [1994] HCA 63; (1994) 181 CLR 487, 493.