R v IAB [2009] VSCA 229

1 After a trial lasting some seven days, the applicant was convicted in the County Court at Horsham, on 15 November 2007, of one count of incest (count 4) and one count of wilfully committing an indecent act in the presence of a child below the age of 16 (count 6). He was acquitted of four further counts alleging indecent acts in the presence of a child below the age of 16 (counts 1, 2, 3 and 5).

2 The complainant in relation to all of these counts was N, the applicant's eldest daughter.

3 On 20 December 2007, the applicant was sentenced to a term of three years' imprisonment on count 4, and a term of six months' imprisonment on count 6. Three months of the sentence on count 6 was ordered to be served cumulatively upon the sentence imposed on count 4. That made a total effective sentence of three years and three months. A non-parole period of two years and two months was fixed. The applicant was ordered to be registered as an offender under the Sex Offenders Registration Act 2004.

4 He now seeks leave to appeal against both conviction and sentence.

5 The applicant, together with his wife and four children, lived in a small north-central Victorian town. The act of incest which gave rise to count 4 was said to have occurred at some point between June 1998 and December 1999. The applicant entered a bathroom while N, who was then about nine years old, was having a bath.

6 Leaving the door open by a couple of inches, the applicant began to help her wash her hair. He told her to get on all fours in the bath. After she had done this, he inserted his finger into her vagina and moved it in and out for what she said was 'not long'.

7 When someone else in the house was heard to go out the back door the applicant stopped, jumped up, waited a couple of minutes, and then left the bathroom.

8 N, who was 18 years old at the time of the trial, gave evidence that this incident left her feeling 'scared and confused'. She said that it was for that reason that she had not mentioned it to anyone until years later.

9 Count 6 related to an occasion between January 2001 and December 2002, when N was about 12 years old. She was in her bedroom reading a book for school. The applicant entered the room wearing a white towelling dressing gown. He sat down at the end of her bed and spoke to her. At the same time, he exposed his penis to her by allowing his dressing gown to fall open. He then asked her whether she wanted him to stop. When she said yes, he immediately left the room.

10 A central issue in the trial revolved around a telephone conversation that took place on 14 September 2006 between the applicant and N. Before considering the significance of that conversation, it is necessary to outline some of the evidence that was led regarding their relationship.

11 In the late 1990s, the applicant suffered a nervous breakdown. Thereafter he behaved violently towards his daughter and at least one of her brothers. He had hit her, and verbally abused her without cause. It appeared that, as a result of his behaviour, the applicant had subsequently undergone counselling.

12 N accepted under cross-examination that, after his counselling, her father had not lost his temper as frequently as he had previously done. She also accepted that he had 'sometimes' been apologetic to her for his behaviour.

13 The applicant's wife gave evidence that, in the two or so years leading up to her daughter first making the allegations of sexual abuse against the applicant, the relationship between father and daughter had changed. She said that 'every now and then' N would 'have a smart crack at him', reminding him that he had been abusive towards her. The applicant's wife had the following exchange with the applicant's counsel:

Abusive in what sort of way? --- Yelling and screaming and ---

And was she referring then to matters that were current or matters that were from a long time ago? --- From a long time ago.

When those things were brought up by [N] what did [the applicant] do? --- He just stood there and said he was sorry because he wasn't expecting her to come out and say ---

Did there seem to be anything that caused these - I'll describe them as outbursts (indistinct)? --- No, she'd just come out and say them.

Did she refer to specific incidents or just generally? --- No, just generally.

Did [the applicant] shout at her when she brought those up? --- No, no, he didn't.

14 N gave evidence that on 14 September 2006, she and her boyfriend [T] had met up at about 4.30 pm at an old local swimming pool. She said that she had invited T to accompany her family on a weekend trip to Mansfield, but he had not wished to go. He had suggested to her that she should inform her parents that she did not wish to go either.

15 The relevant part of N's evidence is as follows:

- What happened then? --- Well [T] gathered that something was bothering me and he asked what was going on.

- So he asked what was bothering you and what did you say? --- He said something like, 'it's not something to do with your father'. I said 'yes'. And then he said, 'it's not sexually is it?' I said 'yes'.

- After you had that conversation what did you do? --- Sitting there and then went back to his place.

- You went back to his place? ---Yes.

- Did you talk to anyone when you were at his place? --- No one else was there.

16 N said that she had telephoned her mother from T's house, and asked her to come there so they could have a talk. Her evidence was that she could hear her father's voice in the background saying, if 'she wants to talk to you, she can come home and talk to you'.

17 N said that she had told her mother that she was not coming home, and ended the call. She agreed, under cross-examination, that she had not said anything to her mother to indicate what she wished to speak to her about.

18 N's evidence was that she then rang back and the telephone was this time picked up by her father. She said that she told him that she would not come home. He replied that it was 'only fair' on her mother if she did so. N said that she put her telephone onto loudspeaker mode, and that T used his mobile phone to make a recording of the conversation that ensued.

19 N then briefly summarised the remainder of the conversation. The recording was played to the jury, who were also provided with a transcript of it.

IB: It started from in Bendigo, right ..... ..... my break down. And you're dead right. What I did was very, very wrong, right. You're dead right. Okay. I'm not disputing that. Are you there?

NB: Yeah.

IB: Now, I want to - I know it's very, very hard for you to deal with and maybe we'll get some help on that, right.

NB: Mm'hm.

IB: It's just feeling like this, you need to get you some help on that. Right. I got help.

NB: Yeah, but I'm not coming home.

IB: Alright. I think there's more to it. I think there's more to it .....

NB: But still, I've got to live with it.

IB: Well, I think ---

NB: And it's emotionally scarred me.

IB: Hey?

NB: It's scarred me. I can't get over it. And it's got to that point I've had to ---

IB: Yeah, I think - yeah, I think a lot of ..... .....

NB: ..... .....

UNKNOWN MALE PERSON: What's goin' on? What's goin' on here?

21 N's mother was questioned about that second telephone conversation. Her recollection was that immediately before it took place, she had had a brief conversation with N, and had then handed the phone to her husband. She said that her husband had left the kitchen, and gone out to the laundry to speak to N. He had closed the laundry door behind him. She said that her husband had then come out of the laundry, and handed her the phone. At that stage, N had told her mother that she still wanted to speak to her at T's house.

22 The applicant's wife said that after the second telephone call, she was sitting at the kitchen table. Her husband made them both a cup of tea. They then went into their bedroom, and he closed the door. She continued:

Did [the applicant] say something to you in the bedroom? --- Yes, we had a conversation.

What did he say? --- He just said that he had something to tell me and that it would break the - the straw that would break the camel's back about an incident that had happened.

Did he tell you about the nature of that incident? --- Yes he did.

What did he say about the nature of it? --- It was a sexual incident.

After you had that conversation, what did you do then? --- I grabbed my purse and keys and I left [the] house.

23 She then said that she went immediately to T's house, where she was played the tape recording of the telephone conversation. She subsequently contacted the police. She then went home, and asked her husband to leave the house.

24 Under cross-examination, the following exchange took place:

When you went around to T's house on that night of the 14th, you were told that there were some sexual allegations against [the applicant], that's the case isn't it? ---Yes, that's right.

But you weren't told anything specific, is that right? --- No, I was not told anything.

Indeed in the conversation with [the applicant] that night before you went around there, there was nothing ever said which equated to sexual impropriety, [the applicant] and [N] was there? --- No, nothing at all, no.

25 The applicant relies upon the following grounds of appeal:

Ground 1: The learned trial judge erred in leaving as corroboration the telephone conversation of 16th September 2006 [sic] between the complainant and the applicant (Exhibit 1; T 60-69, 163-172, 205-209, 242-243, 244-245, 273-275 & 278-281) given:

• (a) whether the conversation was about her sexual allegations depended at least in part upon the complainant's account that that was the topic of conversation, such that the evidence was not independent of the complainant;
• (b) the conversation could not be corroborative of any particular charged allegation since it was not specific in nature, did not identify any such occasions and, again, depended upon the complainant's account that it concerned her sexual allegations.

Ground 2: The learned judge erred, in respect of the telephone conversation of 16th September 2006 [sic], in failing to direct in a manner:

• (a) that confined its use to evidence that was potentially supportive of the claim of a sexual relationship between the complainant and the applicant, ensured that it could not be used as support for any particular charged allegation and made clear that the jury could not act on the evidence of the conversation unless they were satisfied beyond reasonable doubt that it was, and was intended to be, a true admission to sexual misconduct of that kind;
• (b) that made clear that it could be used as supportive in that way only absent reliance on the complainant's account of the nature of the conversation, as to do otherwise would be to violate the requirement that, to be supportive of the complainant's account, the evidence must be independent of her.

Ground 3: The learned judge erred in undermining his directions on delay in complaint and his Longman-style warning (T 202-211); and in particular he erred:

• (a) by referring to the prosecuting authorities' loss of chance to make inquiries at or close to the relevant time which may have affected their ability to discover the truth; the inability of the complainant to identify the occasions or dates on which the offences were alleged to have occurred with any specificity; and the loss of the chance to examine the complainant medically close to the relevant time to provide evidence supporting her allegations (T 203).

26 Originally, there was a ground 3(b). However, that ground was expressly abandoned before us.

27 It was submitted on behalf of the applicant that it would be inappropriate, if any of the grounds were to succeed, to order a retrial as he had already served a large proportion of the sentence imposed.

The trial judge's directions regarding corroboration

28 Before the commencement of final addresses, the trial judge informed counsel that he proposed to give a Kilby[1] direction. He indicated that he wanted submissions as to whether he should also give a Longman[2] warning.

29 The prosecutor did not answer directly. He said, instead, that his first submission was that the recorded conversation between the applicant and N provided corroboration of N's account of what had taken place. He submitted that the jury would be entitled to find that the telephone conversation contained admissions on the part of the applicant of previous sexual impropriety with his daughter, without having to rely, in any way, upon N's evidence to support that conclusion. He further submitted that the account given by the applicant's wife of his having taken the telephone into the laundry, and shut the door, and then acknowledging moments later that 'it' had concerned 'a sexual incident', was plainly capable of amounting to corroboration.

So in my submission there is corroboration of the complainant's complaints and that certainly any warning Your Honour gave would need to include a direction that there is corroboration in this case.

When you look at that entire context, Your Honour, in my submission, it's capable of amounting to corroboration. So then if the tape is about allegations of a sexual nature, that's what they're discussing, then the jury can use the statement that, 'What I did was very wrong'.

32 The prosecutor's submissions were challenged by counsel for the applicant. He submitted that there was no specific link between the telephone call and the conversation that ensued in the bedroom between the applicant and his wife. He also highlighted the fact that, in cross-examination, the wife had agreed that 'there was nothing ever said which equated to sexual impropriety'.

33 Put simply, counsel for the applicant submitted in effect that the telephone conversation between the applicant and his daughter could not amount to corroboration because it was 'intractably neutral'. It was capable of being viewed as nothing more than an expression of sincere regret, on the part of the applicant, for his violent behaviour towards his daughter in the past. On that analysis, what he said over the telephone had nothing to do with any aberrant sexual behaviour towards her.

34 Counsel for the applicant reminded his Honour that N's evidence was that her father had, on a number of occasions, apologised to her for his earlier violence towards her. His Honour replied:

It's a question though as to whether or not a jury, accepting the evidence that's pointed to by the prosecution, could be satisfied beyond reasonable doubt, because I would say it would have to be at that level, that this conversation related to the sexual allegations, not the father apologising for some ancient history just all of a sudden.

What was clearly in mind with the daughter, and that is evidence independent of her, because she's talking to the boyfriend, and when she sees the mother shortly after all that's being talked about is allegations of a sexual nature.

On the other side of the equation you've got your client talking to his wife very shortly after he's finished speaking to the daughter and he says he wants - although he doesn't specifying anything relating to [N], what he talks about is not punishment or saying anything about his daughter not coming home because he's upset about what happened in the past relating to punishment and his breakdown, but he says of a sexual nature.

35 Counsel for the applicant responded that, in his submission, the jury could not be so satisfied. He drew attention to the fact that there was evidence that, several days before the critical telephone call, the applicant had apologised to his daughter for his past behaviour towards her, and that there had been no sexual connotation associated with that apology.

36 His Honour replied that, in his view, a jury properly instructed could reasonably find that the recorded conversation went beyond any remorse for past violence, and extended into the realm of sexual abuse.

In relation to the aspect of corroboration, I am of the view that the telephone call is capable of being supportive, or to use the older term, corroborative of the complainant's account, and it is on a material fact, and although it does require the drawing of an inference or inferences by the jury in relation to the interpretation of what is being talked about, it is my view that, properly instructed, they can exclude the explanation that is sought to be put forward on the material that has been outlined during the course of argument...

38 As foreshadowed, his Honour subsequently left the recorded conversation to the jury as potentially corroborative. As his directions on this point are the subject of separate attack, both under ground 1, and under ground 2, they will be summarised in some detail.

39 Firstly, his Honour told the jury that they had to consider carefully whether there was independent evidence to support N's account. He defined corroboration, and distinguished it from mere supporting evidence in terms that were unexceptionable. He told the jury that it was his task to draw their attention to what evidence was capable of amounting to corroboration. It was then their task to determine whether they accepted that evidence, and whether they considered that it did, or did not, corroborate N's account.

The evidence which is in this case, as a matter of law, capable of being regarded as independently supportive or corroborative, is the telephone call between the accused and the complainant on 14 September 2006. The Crown says that the accused in this conversation is apologising for his sexual assaults on his daughter in the past, and they say that that is an admission; it is independent of her; it is coming from him, it is independent and that it is a form of admission to the sexual activities in the past. So if you accept that the call was made, which there does not seem to be any question about, but more importantly, that it was about the sexual activities in the past, if that was what you accepted on your assessment of the facts, you could use it as being supportive or corroborative of her evidence that these things happened. That is a matter for you.

The defence on the other side say you cannot in this case be satisfied that that was what the accused was talking about. The defence suggests the conversation, that is the accused apologising, is for conduct which was non sexual in the past when he was unfairly punishing his daughter. You recall that there has been the problem in the family in the past where he had had some form of breakdown, in the course of it he had been unreasonably dealing with the children and punishing them, and that they had got counselling and at the time he had apologised and things had changed and there was that history about it, and that the apologising, according to the accused's wife, had even been in quite recent times that he had been apologising for this sort of conduct.

So the defence point to that evidence of the mother, that he was apologising recently for these sorts of things, and only shortly before this call occurred. It is also mentioned by the defence that there is nothing of a sexual nature that is mentioned in the call. The prosecutor on the other hand relies on the fact that the complainant herself says that this was about the sexual assaults, and that they point to the fact that the accused took the call in private so that when he picked up the phone he did not speak in front of the wife or anybody else, he went into the laundry and took the call and spoke in the absence of any other persons. Shortly after that call, the prosecutor points to the fact that the accused spoke to his wife and took her into the bedroom, the privacy of the bedroom, and had a conversation with her, telling her something about the straw that broke the camel's back, and that he talked - he said it was about a sexual incident, but there was no other detail, but it was a sexual incident.

The Crown ask you to draw an inference from those facts that this conversation was about these earlier sexual assaults upon the daughter, that that is what he was apologising for. To do that you would need to draw an inference from the facts, depending on what facts you find, and the prosecutor has taken you through a number of facts and invited you to accept those facts and then draw the inference against the accused that what he was talking about in that conversation was these earlier sexual incidents and not the matter about his unfairly punishing the children in the past and apologising for that again. The defence on the other hand say, you cannot exclude beyond reasonable doubt this other possible innocent inference open on the facts.

41 His Honour then reminded the jury of the law regarding circumstantial evidence and the drawing of inferences. Once again, he did so in terms that were unexceptionable.

42 The trial judge next reminded the jury of the 'stark conflict' between the position taken by the prosecution, and that taken by the defence, regarding the recorded telephone call.

Something flows from all of that though. If you are not satisfied beyond reasonable doubt that this evidence of the telephone call is evidence corroborating her story, so if you are not satisfied beyond reasonable doubt that that evidence is corroboration or independent evidence supporting the complainant, then of course her evidence stands alone. There is no independent evidence supporting her, it is just her evidence alone. If the complainant provides the sole evidence of the crime or crimes, then her evidence will be crucial to the case. The reliability of her evidence will be essential to the prosecution case, and the ability of the defence to rebut the evidence will be critical to the defence case. It is for this reason alone I direct you that you must in those circumstances scrutinise the complainant's evidence with great care before convicting on the basis of that evidence alone ...

You must be satisfied beyond reasonable doubt that the complainant's evidence is accurate and reliable before you can convict the accused. However in this case I must go further than that because of the risks arising from the delay that I have told you about. I must warn you that it would be dangerous to convict the accused on the basis of the complainant's unsupported evidence alone unless after scrutinising her evidence with great care and considering the circumstances of the factors that I have drawn to your attention and paying heed to the warnings I have given you, you are satisfied beyond reasonable doubt about its truth and accuracy.

However if you are satisfied beyond reasonable doubt that the evidence I referred you to relating to corroboration supports the complainant's evidence then the warning that I have just given you does not apply. Do you follow that if her evidence stands alone and there is no independent supporting evidence then I give you that warning, that you must scrutinise her evidence very carefully and it would be dangerous to convict on her evidence alone.

It does not mean you cannot, and after careful consideration and all the warnings I have given you say, 'I am satisfied beyond reasonable doubt on her evidence alone.' You are quite entitled to convict on that basis. But you must take heed of the warnings I have given you in relation to the matter.

If on the other hand when you look at the corroborative evidence, the independent supporting evidence, if you are satisfied beyond reasonable doubt about that and you are satisfied that he was apologising for the earlier sexual incidents, you are satisfied beyond reasonable doubt about that, then she does not stand alone. There is independent evidence supporting her, and the warning that I have just given you does not apply.

This is because in such circumstances, as I say, the complainant's evidence does not stand alone. Common sense and experience indicates that a witness's evidence about an incident can be more readily accepted if it is supported by independent evidence.

This does not mean that you disregard all that I have said about the risks that arise due to lengthy delay in complaining about the alleged offences. The existence of supporting evidence if you find that there is independent supporting evidence does not change the fact that the delay in complaining may affect the complainant's credit as a witness, there are the forensic disadvantages that arise because of the delay which I took you through, and the effect on the complainant's memory about events, particularly as she was a child when she alleges these events occurred.

44 His Honour later returned to this issue when he came to summarise the prosecution case. He came back to it again following a question from the jury. Relevantly, they asked whether they were to consider the recorded conversation in isolation, and form a view about it, or whether they were entitled to have regard to circumstances surrounding that conversation, including what was said by the applicant to his wife in their bedroom.

45 The trial judge told the jury that they were entitled to look at the other evidence to which they had referred in deciding what meaning should be given to the recorded conversation. He repeated the warning that he had previously given regarding the drawing of any inference adverse to the accused.

Now I took you as best I could to the types of evidence that they both referred to and behind closed doors and bedroom conversation was part of that which was relied on by the prosecution but can I also say this to you. You are not bound by the arguments of counsel as to what they say is relevant in determining that issue. They have put arguments to you for their respective sides inviting you to come to conclusions or not to come to conclusions, depending on which view you're looking or which argument you're looking at. But you're entitled to look at all the facts and determine what you regard are the relevant facts and depending on what you regard as relevant and what the true facts are, you can then proceed on that basis so you are not bound by those arguments but if you so choose and wish, you could use that evidence about what happened behind closed doors and the bedroom conversation, that's part of it and if you accepted that you could act upon that together with other evidence. You are not limited by that.

But can I also remind you of what the law says about the drawing of inferences again, and it says this: You may not infer the existence of any element of the charge or the guilt of the accused unless first you were satisfied beyond reasonable doubt of all the facts necessary to make the inference, and secondly, the inference is the only reasonable inference which could be made upon those facts. If there were another inference open upon those facts, an inference consistent with innocence, you would have necessarily a reasonable doubt about the guilty inference and must not draw it.

In this case, my direction of law to you is that, what took place in the telephone conversation is very central to the case and you would have to be satisfied beyond reasonable doubt before you used it that as corroborative evidence of [the complainant], you would have to be satisfied beyond reasonable doubt that what was being spoken about by the accused when he was saying he was sorry, was the sexual abuse. So you would have to be satisfied beyond reasonable doubt from all the evidence as you found it, that that's what he was talking about. And the defence say, 'Well, you can't draw that inference in this case because of all the other surrounding circumstances and you must have a reasonable doubt about this other inference that possibly that he was talking about in his mind, he was talking about what he'd done to his children and particularly [the complainant] earlier in her life when he'd punished her unfairly.' So you see the difference there and the importance of the piece of evidence is such, because it's very important to the case, that you would need to be satisfied beyond reasonable doubt. And it is a matter for you, looking at all the evidence whether you in the end say, 'Well, I'm satisfied beyond reasonable doubt that in that conversation he was apologising for what he did previously in relation to sexual abuse and I can exclude beyond reasonable doubt this other inference, what the defence say is another reasonable inference open on the evidence and they say, you can't exclude it, the prosecution say, you can.' In the end, it's a matter for you. But you can take into account all evidence as you find it and that includes, as the prosecution invite you to those conversations that were said to have occurred 'behind the closed doors' I think you're probably referring to where he went, behind the close door with the phone and spoke privately. You can take that into account if you wish and then when they went into the bedroom and again had a private conversation and what he said there - if you accept that that happened you can use that again in the drawing of the inference if you find that is one of the facts and you are satisfied that that's what happened.

Ground 1 - Was the telephone conversation, as recorded, capable in law of amounting to corroboration?

47 It was submitted on behalf of the applicant, in support of this ground, that whether or not the recorded conversation related to past sexual misconduct had to depend, at least in part, upon N's word that that was so. The evidence was therefore not 'independent' of N. It followed, so it was submitted, that the conversation could not amount to corroboration.

48 It was next submitted that, even if the conversation could be construed as relating to some form of past sexual abuse, and even if it could be regarded as relevantly 'independent', it was still not capable of amounting to corroboration. That was because anything said by the applicant in that regard lacked specificity, and could not be linked to any of the individual counts. Taken at its highest for the prosecution, the applicant was doing nothing more than expressing general remorse over some improper sexual behaviour towards his daughter in the past. That was not sufficient to amount to corroboration.[3]

49 Before dealing with ground 1 in some detail, it might be useful to restate some general principles regarding the nature of corroboration. It is not necessary that evidence, in order to be capable of amounting to corroboration, directly support the account given by the witness whose evidence is potentially unreliable. Rather, what is required is that there be evidence from a source, independent of the person to be supported, which renders that person's evidence, in a material particular, more probable, by implicating the accused in the offence charged.[4]

50 The evidence does not have to confirm the accused's involvement in the commission of the offence as related by the witness. In R v Rayner,[5] Brooking JA characterised a submission to that effect as a misconception. His Honour said that its acceptance would require a corroborating witness to be a 'fly on the wall'[6] of the incriminating episode. He added that it was sufficient if the evidence strengthened the testimony of the witness whose evidence was the subject of the warning, by tending to confirm the guilt of the accused without necessarily directly confirming some inculpatory event mentioned by the witness. In his Honour's words:

...corroboration is capable of being found in evidence which has no direct connection with the narrative of [the witness whose evidence is to be corroborated].[7]

51 A similar statement of principle is to be found in R v Galluzzo,[8] a judgment of the New South Wales Court of Criminal Appeal. There it was said that the requirement of corroboration was not a requirement of support for the actual account given by the witness to be corroborated, but rather of two broad factors; (1) that a crime had been committed and (2) that the accused had committed it. In other words, corroboration consisted of evidence which pointed to the witness' evidence implicating the accused as being true.

52 Corroborative evidence can be, and often is, circumstantial rather than direct.[9] In such a case, while a single piece of evidence may not be sufficient to amount to corroboration, nonetheless, in combination with other evidence it may be capable of doing so.[10]

53 Evidence may be regarded as corroborative of the account given by a witness even though, in the absence of that account, the evidence would not of itself point to the guilt of the accused.[11]

54 Finally, the fact that evidence may not point unequivocally to guilt does not prevent it from being considered as corroborative. There is a difference between evidence which is 'intractably neutral', and which cannot therefore amount to corroboration, and evidence which gives rise to competing inferences, one of which is guilt,[12] and which can therefore be corroborative.

55 In our view, the evidence regarding the conversation between the applicant and his daughter on 14 September 2006 was capable of being regarded by the jury as corroborative of N's account.

56 In the first place, what the applicant himself said was evidence from a source independent of N, which could be viewed as implicating him in the offences charged. If so regarded, it tended to show both that those offences had been committed, and that he was the person who had committed them.[13] Any significance attributed to that evidence did not depend upon N's word as to what she understood the conversation to have been about. Rather, it was a matter of what the jury, having heard that conversation, would have made of it.

57 In that regard, the jury were entitled to take into account the seemingly furtive nature of the recorded conversation with the applicant being unwilling to talk to his daughter in the presence of his wife. They were also entitled to have regard to the tone of the conversation, and the actual language used, in assessing whether the applicant's expression of remorse went beyond regret for the violence he had exhibited towards his daughter many years earlier. Finally, the jury would have been entitled to infer that there was a link between the recorded conversation and the statement to his wife in the bedroom about 'a sexual incident'.

58 All of these matters had a potential significance that in no way depended upon N's credibility, but rather upon factors that were entirely 'independent' of her. It follows that ground 1(a) must fail.

59 As regards ground 1(b), it is not the law, as we understand it, that in order to amount to corroboration, a piece of evidence must specifically link to the allegations contained in a particular count. Nor is it the law that corroboration must, itself, be probative of guilt.[14]

60 The applicant's submission to that effect seems to be based upon a single sentence in the judgment of Lasry AJA in R v GVV, where his Honour attached significance to the fact that a conversation between the complainant and the accused did not contain any admission by the accused that corroborated the specific allegations which were the basis of any of the counts on the presentment. However, the sentence relied upon appeared only in the part of the judgment that contained a summary of the evidence. In R v GVV, unlike the present case, there was no ground of appeal which complained of the accused's words having been left to the jury as capable of amounting to corroboration. R v GVV does not support the proposition for which it was cited.

61 Indeed, this Court's prevailing view of corroboration, runs directly contrary to the principle said to underlie ground 1(b). As noted above, it is a misconception that in order to be corroborative, evidence must itself be probative of the fact that the accused committed the crime.[15] The essence of corroboration is the presence of some confirmation, strengthening, or support of other evidence so that that other evidence is rendered more probable. As regards N, it is sufficient if the evidence upon which the prosecution relies as corroboration is capable of being regarded as confirming, or tending to confirm, the applicant's involvement in the events as related by her. It need not link to any specific count in the way claimed on behalf of the applicant.[16] Ground 1(b) must also be rejected.

Ground 2 - Were the directions given with regard to the telephone conversation adequate?

62 It was next contended on behalf of the applicant that the trial judge had failed to confine the use that might legitimately be made of the recorded conversation. It was submitted that the jury ought to have been told that the words spoken went no further than to show that there had, at one time, been some sexual attraction, on the part of the applicant, towards his daughter. It was submitted as a concomitant of this that the jury ought to have been told that they could not use that evidence as support for any particular count unless satisfied, beyond reasonable doubt, that it was, and was intended to be, a true admission to sexual misconduct of the very kind alleged.

63 Once again, this ground misconceives both the relevance of this evidence, and the circumstances in which it could be used as support for N's testimony. In our view the evidence was capable of showing something other than a 'guilty passion' by the applicant for his daughter. Indeed, it was not led to establish a sexual relationship or propensity. It was perfectly capable of being viewed by the jury as an admission by him that he had sexually interfered with her in the past. In order to constitute corroboration, it did not have to amount to an admission, in terms, of the precise nature of that interference. Had the applicant made such an admission, there would, of course have been no need to call N in the first place.

64 The applicant relied upon R v Buckley in support of this ground.[17] In that case the prosecution relied upon an admission alleged to have been made by the applicant as corroboration. The difficulty was that it was unclear whether the applicant was referring to the particular complainant involved in the counts laid, or another complainant, whose counts had been severed, when the admissions were made. That is a far cry from the present case.

65 It is true that the trial judge in the present case did not give the jury a warning about engaging in propensity reasoning in relation to the evidence of the telephone call. His Honour did, however, give that warning in relation to evidence given by the complainant of an 'uncharged act', that being evidence of an occasion other than the subject of one of the counts on which the applicant was alleged indecently to have exposed himself to her.

66 The prosecution did not submit that the applicant's admission over the telephone necessarily related to any of the specific counts with which the applicant was charged. That might suggest that the evidence was properly to be characterised as relating to an 'uncharged act'. If so, it might have warranted a propensity warning. The jury might have been told that the evidence tended to explain the relationship between N and her father, and in particular that he had an 'unnatural passion' for her.[18]

67 Of course, as we have already noted, evidence of an uncharged act can, if properly admitted, amount to corroboration. In B v The Queen[19] it was held that an admission of previous sexual offending against a complainant was capable of amounting to corroboration of her allegations of later similar offending.[20]

68 In BRS v R,[21] evidence that a school teacher kept a lubricant called KY Jelly in his room, and a yellow towel under his bed, was held to be capable of amounting to corroboration on a charge against him of having had homosexual intercourse with a pupil. The corroborative aspect came from the fact that W, another pupil, gave evidence at the trial that the accused had offered him use of his room if he wished to masturbate, and told him that he kept a yellow towel under his bed for that purpose, as well as offering him the use of KY Jelly. The appeal was allowed but only because of the likelihood, in that case, that the jury might have used W's evidence as propensity evidence, unless given an appropriate direction not to do so.

69 The risk that the jury may have used a forbidden chain of reasoning in the present case seems to us to be remote, and certainly much less than that in BRS v R. Moreover, there is no ground of appeal complaining of any failure on the part of his Honour to give a propensity warning, and, as will be seen, no exception relating to this matter was taken to the charge.

70 The evidence, independent of N's testimony, which was left to the jury in the present case as potentially corroborative, and therefore as capable as confirming N's evidence, was most unlikely to have been used as propensity evidence. The jury would not, in our opinion, have engaged in impermissible reasoning by concluding that the applicant had committed uncharged acts upon his daughter, based upon the contents of the telephone call, and therefore, being of that disposition, was likely to have committed either or both of the offences ultimately made out. The significance of the telephone call, and the surrounding circumstances, was far removed from that chain of reasoning.

71 It is true that at two points in his Honour's charge, he refers to the fact that N herself had said that the telephone call was about the sexual assaults that had been perpetrated upon her. However, he did not suggest in terms, in doing so, that what N said about the call rendered it corroborative. He merely summarised one of the arguments advanced by the prosecutor. It might have been better if his Honour had made it clear, in including these references to the prosecutor's submissions, that N's view of the conversation could not be taken into account when determining whether there was, in fact, corroboration. However, once again, no exception was taken and we do not think that they jury would have been misled into giving this evidence a legal effect to which it was not entitled.

72 Ground 2(a) is, in our opinion, without substance.

73 Ground 2(b) simply replicates ground 1(b) save that it complains that the jury should have been directed that the recorded conversation had no probative force because it was not 'independent' of N. For the reasons given earlier, that ground must also be rejected.

Ground 3 - Directions regarding delay and the Longman warning.

74 Ground 3(a) contends that the trial judge erred in having undermined in two distinct ways the Longman warning which he gave. First, it is suggested that the warning was diluted by a reference which his Honour made to the prosecuting authorities' loss of opportunity to make enquiries at, or close to, the relevant time which may have affected their ability to discover the truth. Second, it is suggested that the warning was weakened by his Honour's mention of the fact that the delay meant that N could not have been medically examined close to the relevant time, and that meant, inter alia that there was no opportunity to provide evidence that might have supported her account.

75 In Longman it was held that the jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone. The terms in which a Longman warning should be given have been modified by s 61 of the Crimes Act 1958, as amended.

76 Before turning to the warning that his Honour gave, it should first be noted that he directed the jury, in accordance with Kilby v R,[22] that the lengthy delay which had occurred before N first complained of her father's misconduct towards her, was a factor that could be taken into account in assessing her credibility. He told the jury that whether or not the delay cast doubt upon N's account might depend upon a number of factors. He said that there might be good reasons why a young child, such as N, might delay or hesitate in complaining about having been sexually molested by her father. He mentioned the possibility that a child of that age could feel powerless in such circumstances. He also reminded the jury that a child might, wrongly, feel shame or embarrassment at what had occurred.

77 His Honour concluded that a Longman warning was required because although the offences were alleged to have been committed between 1997 and 2002, N had made no complaint about them until 2006.

78 The warning given by his Honour was in the following terms:

I have been through with you the offences that occurred between '97 and 2002 and some of those offences are now up to 10 years old, whereas the more recent ones are four. I must warn you about the serious consequences of delay. In giving you this warning I am not suggesting, and it would be wrong to suggest, that people who make complaints of sexual offences are less reliable than other witnesses. This is not the case. This warning is necessary solely because of the risks which arise from delay in complaining about the offences. Because of this delay, the accused has been seriously disadvantaged in his defence of these charges.

In particular the accused has the following disadvantages; he has lost the opportunity to make inquiries at or close to the time of the alleged incidents, as did the prosecuting authorities. This may have affected the party's ability to discover the truth. The accused lost the ability to explore the alleged circumstances in detail soon after the offences were said to have occurred. Such an exploration may have uncovered evidence which would have thrown or cast doubt upon the complainant's allegation or confirm the accused's denial of the charges. Because of the delay, the complainant is not able to identify the occasion, and in particular the dates on which offences are alleged to have occurred with any specificity. You will note that the charges are laid between dates, so she is not able to say, on this particular day this is what happened. This makes it difficult for the accused to establish an alibi, or raise any defence other than a simple denial. Because of the delay, the complainant's own recollection of events has faded, so she has not been able to provide many specific details of the alleged offences. This also makes it difficult for the accused to establish alibi or raise a defence other than a simple denial. The complainant could not, as a result of the delay, be medically examined close to the time of the alleged offence, to provide evidence denying or supporting the allegations. So I instruct you as a direction of law that you must take these disadvantages into account when determining whether the prosecution has proved the accused's guilt beyond reasonable doubt.

Another consequence of delay is its possible effect on the reliability of the complainant's memory. You will easily understand that the passage of time may affect any witness's memory. While in some cases people simply forget things, in other cases their memory may become distorted. That is they may come to remember things that did not really happen. Experience has shown that human recollection is frequently erroneously and liable to distortion this way. The likelihood of this error increases with delay.

This risk is enhanced if the complainant was young when the alleged offence took place. Recollection of events occurring in childhood is often distorted or mistaken. It is therefore important that you carefully consider not only whether the complainant's evidence is honest in the sense that the complainant believes it to be true, but also whether it is in fact true. While you should use your commonsense and experience in assessing the effect of delay on a complainant's memory, you must keep in mind the possibility that she honestly believes what she is saying, but is mistaken due to distortion of her memory. The defence says that, in this case, for instance, that she could be turning some incidents, which were quite innocent, now into improper activities because of the change in time. For instance, a cuddling incident, where a hand might have accidentally come in touch with her breast, many years later on has been changed in her mind for various reasons to believing that that was an improper act, or, for instance, a cuddle on a couch and a hand going down the back of her pants and touching her bottom might have been an innocent, the defence say, possibly an innocent activity, but she has now elevated that into an improper act in her mind and may honestly believe that, but it may not have been such an activity. They are the sort of things that delay in time, particularly on a younger mind can affect a person's memory and their view of what happened to them. It is a matter for you as to whether you think that was the case here.

79 Curiously, having regard to the terms of s 61, his Honour added to this warning by giving the following direction:

You must be satisfied beyond reasonable doubt that the complainant's evidence is accurate and reliable before you can convict the accused. However in this case I must go further than that because of the risks arising from the delay that I have told you about. I must warn you that it would be dangerous to convict the accused on the basis of the complainant's unsupported evidence alone unless after scrutinising her evidence with great care and considering the circumstances of the factors that I have drawn to your attention and paying heed to the warnings I have given you, you are satisfied beyond reasonable doubt about its truth and accuracy.

80 The warning that it was 'dangerous to convict', in part, because of the delay that had ensued, was unduly favourable to the applicant, and at odds with the requirements of s 61.

81 Of course, a trial judge must ensure that if a Longman warning is given, it is in truth a warning and not just a comment.[23] The judge may include in his warning, as the trial judge did in this case, a reminder to the jury that the delay in making the complaint might explain why the complainant was unable to be specific about matters of detail. However, in doing so, the Longman warning should not be diluted. His Honour's references to N's memory having faded by the time she first complained were, in our view, entirely orthodox and unexceptionable.

82 The real issue under ground 3(a) is whether, as the applicant contends, his Honour's brief allusion, in the passage set out above, to 'prosecuting authorities', and later to 'supporting the allegations', might, as a matter of practical reality, have had the effect of diluting the warning.

83 It was submitted on behalf of the applicant that the introduction of these two references had had the effect of undermining the Longman warning. It was submitted that references of that kind, were proscribed because such a warning had to be unequivocally favourable to an accused. It could not be 'balanced' by even a hint that a timely complaint might have resulted in support for the complainant's version.

84 In support of that contention, the applicant relied upon the judgment of Lasry AJA (with whom Maxwell P and Ashley JA agreed) in R v GVV. His Honour's judgment, in turn, referred with approval to R v Taylor (No 2),[24] a case in which the Longman warning was held to have been eviscerated. In R v Taylor (No 2), the trial judge had commenced the warning by pointing out that one specific consequence of delay was that the police had lost the ability to fully investigate the events, and the ability to search for physical evidence or locate witnesses who might have had a clear recollection of what had taken place. In other words, the warning commenced with an outline of the disadvantage to the prosecution, brought about by delay. To make matters worse, no direction was given as to the specific forensic disadvantages suffered by the accused, only a direction in the most general of terms. It was scarcely surprising, in those circumstances, that the warning was found to have been unacceptable.

85 In R v GVV, the warning that had been given by the trial judge was also held to have been diluted, and therefore to have been deficient. Lasry AJA said as follows:

In my opinion, the judgment of this Court in R v Taylor (No 2) makes it clear that such a warning must be unequivocally favourable to the accused. This is not an occasion for balance between the parties.[25]

86 The passages from the warning which gave rise to Lasry AJA's conclusion were as follows:

You must remember that the passage of time, people when allegations are made, sometimes lose the means of defending themselves, had an allegation been made shortly after the event, it would have been possible to explore in detail the alleged circumstances surrounding the occurrence, and perhaps adduce evidence throwing doubts on the complainant's version, or indeed confirming the accused's denial, or confirming the complainant's version.

After a delay, that opportunity may have gone. For example, the sort of thing I am talking about, had the victim's mother been interviewed by the police the next day after Count 1, and said to her, 'Look, we want to ask you questions about what happened last Tuesday night, did C come into your room and say that there was a mouse under her bed, or something like that?' And, 'Did you leave the room, and did she stay in the bedroom with [the applicant], and did you go to bed after that, and did you notice anything unusual about her on that night?'

Well, depending on what answers you gave, you could have evidence of a witness whose memory was presumably fresh, who may have said, 'Yes, what C says is true,' or 'Nothing like that happened at all and I didn't notice anything untoward about her,' or 'She was a bit flighty and she went back to bed,' all those things might or might not have been given. You cannot speculate on what answers - what evidence might have been available, but you have got to appreciate that a passage of time has gone and the opportunity for C's mother to give that evidence in detail as to whether the offence occurred, or did not occur, or what have you, surrounding circumstances on that Tuesday night, it would have been Tuesday, I am assuming it was; will not help you. That evidence has gone.

Likewise, for example, [witness A] might have been interviewed and his memory might have been a little bit more precise in 1998 as to whether he got into blue Chevrolet truck or not, or whether he ever did go driving. He says no he cannot recall, never had an occasion to be in that car with the accused man or C. Therefore [the prosecutor] says you should accept his evidence and it throws doubt on C's reliability as a witness.

But on the other hand [witness A's] recollection is now some seven or nine years long and, of course, the accused has been denied in one sense the ability to have that evidence put before you in a very stark circumstances. If [witness A] had a fresh memory of those days, on the other hand, [defence counsel's] comment to [witness A] was - something about his memory. How good is your memory of that period of time, some seven or eight years ago. [26]

87 Several points should be noted. The 'balancing' comments in this extract were far stronger, and more emphatic, than those of the trial judge in the matter before us. So much so that the submission was advanced, in R v GVV, that the warning given had become 'little more than an apologia for potential weaknesses in the prosecution case'.[27] In addition, it would seem from the fact that no point was made by counsel for the Director of Public Prosecutions of any failure on the part of counsel at the trial to take exception to this portion of the charge, and no mention of any such failure was made by Lasry AJA, that such exception was taken. Finally, the applicant received the benefit of a stronger warning, regarding delay, than he was entitled to, having regard to the use of the term 'dangerous to convict'.

88 The position regarding the applicant in this case is quite different. The two references to 'balancing' considerations consist of a total of five words. These are fleeting references only. They are swamped by numerous and repeated reminders that it was the applicant who had sustained serious disadvantage in his defence to these charges by reason of delay. Those disadvantages were spelt out and put forcefully.

89 The authorities that deal with the need for a Longman warning emphasise that, if given, it must be tailored to the particular circumstances of the case.[28] What must be brought home to the jury is the need to be persuaded of the truth and accuracy of the complainant's evidence before any reliance is placed upon it.[29]

90 We doubt that the jury would have regarded the warning given as having been in any way diluted by the two brief references upon which this ground rests. That is not to say that the trial judge acted correctly in referring to those matters. Plainly, those references should not have been included.

91 Not every error in a judge's charge gives rise to a miscarriage of justice. There are errors that can properly be characterised as harmless. The inclusion of the references to the 'prosecuting authorities' and 'supporting the allegations' did not, in our view, dilute the warning so as to constitute a miscarriage of justice.

92 We are fortified in that opinion by the fact that counsel who appeared at the trial took no exception to the adequacy of the warning given. Perhaps that is because of its overall strength. The jury were told at least seven times, within two short paragraphs, that N's delay in making the complaint had seriously disadvantaged the applicant in his defence to the charges.

93 Perhaps it needs to be emphasised that the failure to take an exception at trial represents a serious obstacle to the path of an applicant on appeal. Not every misdirection, or non-direction, provides a basis for a new trial. The law imposes a duty upon counsel to ensure that any errors are drawn to the attention of the trial judge so that they may be corrected. Though the failure of counsel to take a relevant exception is not in all cases fatal to the success of an application for leave to appeal, it is a significant factor, and one which will not, in general, be ignored.[30]

95 There is only one ground of appeal in support of the application for leave to appeal against sentence. That ground asserts that the sentence was manifestly excessive.

96 In support of that ground it was submitted that the individual sentences of three years on count 4, and six months on count 6, the direction for cumulation, the resulting total effective sentence of three years and three months, and the non-parole period of two years and two months were all manifestly excessive.

97 Counsel for the applicant drew attention to the limited duration of the incident giving rise to the count of digital incest, the relatively minor nature of the indecent act in count 6, and the absence of any prior convictions. He also pointed to the absence of any subsequent convictions, a matter of some significance given the time that had passed since the commission of these offences. He relied upon the evidence of prior good character, namely that the applicant had lived the life of a 'battler' and had maintained a strong employment record when physically able to work. A character witness gave evidence that the applicant was 'very honest and trustworthy'.

98 In addition, it was submitted that the trial judge had failed to give sufficient weight to his finding that the applicant was 'depressed' at the time he committed the act of incest, and that this had, in all likelihood affected his mental capacity and judgment. There was evidence on the plea that, at one stage, coinciding with the offending, the applicant's physical pain was so great that it became a psychological issue, and caused a change in him. At one point he sought assistance at the John Lindell Rehabilitation Unit, and was prescribed antidepressants. His treatment resolved a number of his problems. Count 6 occurred towards the end of his period of counselling, or when his recovery was on track. That might have explained why he desisted from such conduct when asked by his daughter to do so, and did not repeat that behaviour. Counsel also relied upon the absence of any finding by the trial judge that the applicant was a serious sexual offender, and his Honour's finding that there were 'positive signs for [the applicant's] rehabilitation'.

99 In response, it was submitted on behalf of the Crown that the individual sentences, direction for cumulation, total effective sentence and non-parole period were all well within the range. It was further submitted that among the matters that ought to be borne in mind were the maximum penalty for incest (25 years imprisonment) and for an indecent act with a child under 16 (10 years imprisonment). The applicant's daughter had been only about nine years old when she was digitally penetrated. Digital penetration was not to be viewed as less heinous than other forms of sexual penetration.[31] The applicant did not plead guilty, and exhibited no remorse. He chose to embark on a process which required his daughter to give evidence. The sexual penetration was carried out in humiliating circumstances. The impact upon N had been devastating, resulting in severe trauma, and a loss of family support.

100 It is unnecessary to go into any detail regarding this matter. The sentences imposed in this case were modest, particularly that imposed upon count 4. They cannot sensibly be described as in any way excessive. They accord in duration with other sentences recently imposed or upheld by this Court.[32] Some measure of cumulation was warranted, and it was open to the judge to cumulate in the way that he did. His Honour took into account all relevant mitigating factors. This ground is not made out.

101 Leave to appeal against both conviction and sentence should be refused.

[1] Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460.

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

[3] R v GVV [2008] VSCA 170; (2008) 20 VR 395, [20].

[4] R v Rayner [1998] 4 VR 818, 850-1 and R v Taylor [2004] VSCA 98; (2004) 8 VR 213, [12].

[5] [1998] 4 VR 818, 851.

[8] (1986) 23 A Crim R 211, 215.

[9] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 and R v Martin [2003] VSCA 80.

[10] R v Kalajzich and Orrick (1989) 39 A Crim R 415, 427-9; Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207; Conway v R [2000] FCA 461; (2000) 98 FCR 204, [214]-[215]; R v Taylor [2004] VSCA 98; (2004) 8 VR 213, [29]; R v Cox & Sadler (No 16) [2006] VSC 303, [7]; and R v Ferguson, Cox & Sadler [2009] VSCA 198, [105]-[113].

[11] R v Berrill [1982] Qd R 508; R v Kalajzich and Orrick (1989) 39 A Crim R 415, 430; and R v Taylor [2004] VSCA 98; (2004) 8 VR 213, [13]; R v Cox & Sadler (No 16) [2006] VSC 303, [9] and [10].

[12] R v Taylor [2004] VSCA 98; (2004) 8 VR 213, [13]; R v Kalajzich and Orrick (1989) 39 A Crim R 415, 433; and R v Cox & Sadler (No 16) [2006] VSC 303, [11]-[13].

[13] R v McLachlan [1999] VSCA 127; [1999] 2 VR 553, [30].

[14] R v Kuster [2008] VSCA 261, [12]-[18].

[15] R v Taylor [2004] VSCA 98; (2004) 8 VR 213 and R v Kuster [2008] VSCA 261, [14].

[16] R v Buckley [2004] VSCA 185; (2004) 10 VR 215.

[18] KRM v R [2001] HCA 11; (2001) 206 CLR 221, 230. See also R v Sadler [2008] VSCA 198; (2008) 20 VR 69.

[19] [1992] HCA 68; (1992) 175 CLR 599.

[20] See also R v McKenzie [2001] SASC 279.

[21] [1997] HCA 47; (1997) 191 CLR 275.

[22] [1973] HCA 30; (1973) 129 CLR 460.

[23] R v Miletic [1997] 1 VR 593; Crampton v The Queen (2000) 206 CLR 161, 181; and Doggett v The Queen (2001) 208 CLR 343, 355-7.

[24] [2008] VSCA 57; (2008) 18 VR 613. In R v BDX [2009] VSCA 28, a specially constituted court of five declined to overrule R v Taylor (No 2), though the particular point raised was not overly relevant to this appeal.

[25] R v GVV [2008] VSCA 170; (2008) 20 VR 395, [65].

1. [26] Ibid, [54] (emphasis added by Lasry AJA).

[28] Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106, [37] and R v Taylor (No 2) [2008] VSCA 57; (2008) 18 VR 613, [78]

[30] R v Gaffney [1968] VicRp 54; [1968] VR 417, 423; R v Smart [1983] VicRp 22; [1983] 1 VR 265, 297 and R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643, 661-2.

[31] R v Schubert [1999] VSCA 25 and R v Brown [2002] VSCA 207; (2002) 5 VR 463.

[32] R v DM [2007] VSCA 155; R v GLH [2008] VSCA 88 and DPP v EB [2008] VSCA 127.