R v M M J [2006] VSCA 226

1 The applicant was convicted by a jury in the County Court on one count of maintaining a sexual relationship with a child under 16 (Count 1) and three counts of incest (Counts 2, 4 and 5).[1]

2 The applicant was aged 51 years at the time of sentence and was aged between 38 and 44 years at the time of his offending. The applicant stood trial, commencing on 11 April 2005 and running over seven days.

3 On 12 May 2005, the sentencing judge imposed the following sentence:[2]

Count 1 - Maintaining a sexual relationship with a child under 16 years - six years' imprisonment;

Count 2 - Incest - three years' imprisonment (one year cumulative);

Count 4 - Incest - three years' imprisonment (one year cumulative);

Count 5 - Incest - three years' imprisonment (one year cumulative).

A total effective sentence of nine years' imprisonment was imposed and a non-parole period of six years and six months was fixed. Pre-sentence detention of 24 days was declared by the sentencing judge, and the applicant was also declared a registrable offender, pursuant to the Sex Offenders Registration Act 2004, upon his conviction for Counts 4 and 5.

4 The victim of the offences (whom I will refer to hereafter as "A"), was the applicant's stepdaughter, and the offending occurred over a six year period from September 1991 until October 1997. A's mother (whom I will hereafter call "B") commenced living with the applicant when A was about five. B and the applicant married when A was eight.

5 From early on, the applicant was overbearing and imposed himself upon A as an authority figure. A said the applicant would monitor the colour of her urine and sometimes go into the toilet with her and require her to urinate into a jar and he would also urinate on her in the shower and, later, as A became older, the applicant would show her how to use tampons, wash her underwear and, on occasion, sniff the underwear. Once A reached 13, other sexual activities commenced, usually when B was out. At night, the applicant would go into her bedroom and feel her vagina. A could not recall when that activity started. She gave evidence that the applicant would touch her on the vagina whenever the opportunity arose, a few times a week. In addition to the touching of the vagina A said the activities progressed to masturbation, oral sex and digital and penile penetration on a regular basis. These activities continued until A left home at 19.

6 An outline of the evidence against the applicant has been usefully set out by the Crown in the Summary of Evidence with respect to each count - and in the sentencing remarks of the judge below[3] - and can be summarised as follows.

Count 1

7 This count was with respect to the offence of maintaining a sexual relationship with a child under 16. The jury accepted that the type of conduct described in A's evidence occurred on at least three occasions in the period from 12 September 1991 to 11 September 1994. A was aged between 13 and 16 years at the time and gave evidence that, on a regular basis, the applicant put his hands down her pants when she was in bed at night and touched her vagina. A further gave evidence that the applicant later performed oral sex on her in an aviary at the back of the family home. A said that this conduct by the applicant then progressed to digital and, later, penile penetration. A also said that the applicant masturbated in front of her while watching television in the family lounge room, requested that A masturbate the applicant and, occasionally, that there occurred mutual masturbation.

Count 2

8 This count was with respect to the sexual penetration of A by the applicant wherein the applicant introduced his penis into A's vagina on the first occasion that such penetration took place after A turned 16 years of age and before she turned 17 years of age.

Count 4

9 This count was with respect to the penile penetration of A by the applicant wherein the applicant introduced his penis into A's vagina on the first occasion that such penetration took place after A turned 17 years of age and before she turned 18 years of age.

Count 5

10 This count was with respect to the penile penetration of A by the applicant wherein the applicant introduced his penis into A's vagina on the first occasion that such penetration took place after A turned 18 years of age and before she left home at the age of 19.

11 In summary, the sentencing judge observed that it had been the Crown's case that the applicant "had maintained and continued a full sexual relationship" with A from when she was 13 years old until she left home at 19,[4] and that:[5]

"It can be inferred from the jury's verdict that they accepted [A's] evidence and the way in which the Crown put its case, and that is, that [Counts 2, 4 and 5 - the incest counts] were three distinct occasions out of a number of occasions over that period."

The Grounds of Appeal against Conviction

12 The applicant submits three grounds of appeal against conviction.[6]

13 The first ground (Ground 1) was that the applicant's trial miscarried in that the jury, having been invited by the prosecutor to treat the evidence of the applicant's silence (in response to an accusation from his wife) as evidence of his guilt, were not given any direction as to the use that could be made of this evidence.

14 Ground 1 as argued on the application was concerned firstly with the admission of the evidence, and secondly with the submission that the prosecutor's focus in final address on the failure of the applicant to respond to an allegation was inappropriate and prejudicial in the absence of an Edwards[7] direction. In the course of evidence by the applicant's wife, she was asked by the prosecutor whether she had any suspicion about activities between A and the applicant. The relevant evidence in chief was:

"Did you have a suspicion that something may be happening between your husband and your daughter? --- Yes

Did you have a conversation about that with your husband? --- Yes, one day I approached [the applicant] and I said, "Are you sexually involved with [A], or have you been sexually involved with [A]?

Are you able to say about how old [A] was when you had that conversation? --- She would've been over seventeen.

What did he say, if anything, when you asked him that? --- He didn't, he just looked at me and looked away and continued to watch television.

"There were a number of verbal disputes between you and he, weren't there? --- Yes.

As indeed there were between he and [A]? --- Yes.

There were times when you asked questions - in fact many times you would've asked questions and he would've perhaps looked at you as if it was a stupid question and returned to exactly what he was doing? --- He ignored a lot of my questions.

And questions particularly that were likely to cause friction or questions that he ignored? --- [The applicant] would only answer questions that he wanted to answer."

15 The wife said the conversation occurred when A was aged over 17. There was no objection to the evidence. Very early in the final address and again towards its end the prosecutor put to the jury, in effect, that the allegation was so shocking and remarkable that if it was untrue then a vigorous denial would have been expected. The suggestion was put that the applicant's silence was indicative of his guilt. It was not put to the jury by the prosecutor as to the precise fact or events to which the guilt attached save for broad references to sexual intercourse, however, the prosecutor put all of the alleged conduct of the applicant to the jury and thereby attached the implication of guilt from the applicant's silence to all of the alleged conduct. The submission was not complained about or the subject of comment at any stage by the trial judge save in a general way.[8] In his final address, defence counsel addressed the silence issue on the basis that a person would not answer an extreme, stupid question but would ignore it. Counsel also put the proposition that if the applicant had protested he may have been at risk of attributed guilt by virtue of an over-reaction. It was also put for the defence that B should not be believed about the question and silence scenario (although she was not cross-examined to that effect).

16 It was submitted for the applicant that on the basis of the principles in R. v. Salahattin[9], R. v. Alexander[10] and R. v. Gallagher[11] directions ought have been given as to the use the jury could make of the evidence of the applicant's silence towards his wife's questions. It was submitted for the applicant that the evidence (and its application as submitted by the prosecution to the jury) was tantamount to evidence of consciousness of guilt and that there ought to have been some attention by the judge to the ambiguity in the evidence and the way the jury could use the evidence of the applicant's silence.

17 There was other evidence concerning the relationship between the applicant and the wife that was relevant to this issue. Under cross-examination, the wife said that there were a number of verbal disputes between the two of them and that the applicant ignored a lot of her questions. The wife said that:

"[The applicant] would only answer questions that he wanted to answer."

18 In my view, first of all, in relation to the admissibility issue, the silence of the applicant was admissible as a matter of principle because it was open to a jury to conclude that by his silence the applicant admitted or adopted the accusation underlying the question by the wife: see R. v. Grills.[12] There is the classic statement in Grills of Isaacs J:[13]

"It is an elementary rule of law, going to the very foundation of justice, that no man shall be adjudged to be guilty of a crime upon evidence of another person's previous assertions. It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers. But it is evident that upon such an assertion being made, and equally whether in the accused's absence or presence, he may admit its truth, and if he does, then it becomes evidence against him of his guilt, not because another has said it, but because of the admission. It is then equivalent to his own statement, and is receivable in that character. And it is further manifest that the acknowledgment of its correctness may be made in an infinite variety of ways. There may be express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgement or there may be conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected."

Although Isaacs J. went on to dissent, the principle stands.[14]

19 On the face of B's accusation, the applicant's response fell at least within the parameters of passive conduct in circumstances where a denial would be expected. There was no issue about the nature of the question asked by B or as to the meaning of the question both at trial and on the application. There was no suggestion that the question involved two or even three questions in the alternative respect to current involvement or past involvement or both either at trial and no suggestion on the application to whether there was one, two or three questions. It was always construed as a single question which, by the plain meaning of the words used by the witness, challenged the applicant as to his involvement with A present, past or both. Further, there was no issue that the question was put by B to the applicant as described in her evidence (save for a remark by the defence in the final address). The witness was never challenged about the fact of asking the question, its form, or whether the applicant heard the question. B was only cross-examined as to the fact that there were numbers of verbal disputes and that many times the applicant treated B's questions as stupid or ignored her. When B answered in cross examination that the applicant would "only answer the questions that he wanted to answer" she was not challenged. The applicant's defence at trial, therefore, was that the question, having been asked by B, was ignored by the applicant as one he did not answer because it was a stupid question.

20 This brings matters to the point that given the evidence from B as to the question and the applicant's defence, what should the judge have done?

21 In R. v. Salahattin,[15] the Full Court of this Court considered circumstances where police raided a motel room and found heroin. Three men were found in the room. Two of them were directed to sit on the floor, the third, S, was elsewhere in the room. The police asked the two men on the floor as to whose money financed the purchase of the heroin and one, H, said, "S, over there" indicating S, who made no comment. Evidence of the conversation went to the jury without objection. One of the grounds on an application for leave to appeal against conviction was that the trial judge failed to instruct the jury adequately as to the circumstances under which the silence of an accused person, after statements or allegations have been made in his presence by some other person, may be regarded as constituting an admission by the accused.[16] For the applicant in Salahattin it was argued that the jury should have been permitted to take into account the silence of S to the answer of the H.[17] Reliance was placed on Hall v. R.[18] The Full Court in Salahattin rejected the submission observing that in Hall the Privy Council held that no inference of an adoptive submission could be drawn. In Salahattin in this respect it was said:[19]

"In reasoning to that conclusion, Lord Diplock said, at ([1971] 1 All ER) p 324; ([1971] 1 WLR) p 301: "It is a clear and widely-known principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or disclaimer, but in their Lordships' view silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation."

As we understand the passage quoted from the judgment in R v Hall, the first two sentences are to be regarded as statements of law. The first part of the sentence which follows ("It may be that in very exceptional circumstances . . . explanation or disclosure") must be regarded as a recognition of the possibility that, notwithstanding any argument for the application of the propositions of law stated in the preceding two sentences to the facts of the subject case, an inference of the making of an adoptive admission may, nevertheless, on those facts be drawn. It was obviously the view of Lord Diplock that "very exceptional circumstances" might permit of such an inference being drawn and this very concession suggests that the concluding part of the sentence commencing with the words "but in their Lordships' view" cannot have been intended to operate as an inexorable rule of law which would at all times and in all circumstances exclude evidence of the suspect's silence from consideration by the fact-finding tribunal. In our view each case must be examined in the light of its particular facts giving full weight to the principle to which Lord Diplock referred, in order to determine whether the tribunal of fact is to be permitted or forbidden to infer an admission from silence." (Emphasis added)

Later it was said in Salahattin:[20]

"Out of court, the only rule is that unless a statute so directs, no person can be compelled to answer questions put by the police (or indeed by any other person) or to make any statement to the police; or to any other person. The person questioned is perfectly free - on the Hohfeldian analysis, having a "liberty" - to decline to do either: see Wigmore on Evidence McNaughton Revision vol. 8, p 329, para. 2252.

It is the context of this liberty that the applicant's failure to deny the accusation made by Hargraves must be considered. It is not to be resolved on the basis of a rigid rule of exclusion..."

Next, in Salahattin consideration was given to the admissibility of silence to an allegation:[21]

"For the principle is that an allegation is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, "having heard the statement and having had the opportunity of explaining or denying it, and the occasion being one upon which he might reasonably be expected to make some observation, explanation or denial, has by his silence, his conduct or demeanour or by the character of any observations or explanations he thought fit to make, substantially admitted the truth of the whole or some part of the allegation made in his presence": see R v Smith (1897) 18 Cox CC 470, at p 471, per Hawkins, J-- or that he has so conducted himself as to show consciousness of guilt--see R v Thomas, [1970] VicRp 87; [1970] VR 674, at p. 679. Whether that inference can be drawn in the present case depends on the coalition of a number of facts." (Emphasis added)

22 The Full Court in Salahattin then proceeded to look at three factors: first, whether the accused heard the subject statement; secondly, whether he understood the statement; and thirdly, whether the facts contained in the subject statement were within the personal knowledge of the accused. In other words, the Full Court considered the factual context of the admission. On the basis of that analysis the Full Court held that these were matters "clearly open to the jury" upon which they could be satisfied.[22] The next step was said to be "the essential enquiry": "whether the circumstances were such that a dissent by the applicant would in ordinarily experience have been expressed by the applicant if H's statement was not correct".[23] It was then said that the allegation made in the presence of S placed him in jeopardy if he assented to or did not deny it. The Full Court held[24] that it was open for the jury to decide whether or not a contradiction or denial could be expected if the allegations were untrue or whether any inference could be drawn from a failure to deny. It was observed in Salahattin that the trial judge summarised the Crown case and the way the alleged admissions were relied on. It was observed that the jury would need to be satisfied that H had made the allegation before considering whether the silence of S constituted an admission. All these matters were viewed as matters for the jury to be resolved in light of other evidence.[25] It was further observed in Salahattin that the jury ought to be given proper assistance by the judge in the charge. Although in Salahattin there was criticism of the extent of assistance given by the trial judge, it was observed that the matter was sufficiently recapitulated in the closing address but, importantly for present purposes, it was said:[26]

"It is, however, to be borne in mind that the question of admission or no admission was a question of fact, dependent on what in the judgment of the jury would have been the reaction of an innocent man, in the situation in which the applicant was placed in the circumstances found by the jury to exist, to the allegations of Hargraves. The justification of the doctrine of an adoptive admission rests on human experience, on the probabilities of human reactions, in the circumstances prevailing at the time, to the making of an accusation, and these probabilities are capable of being assessed by the jury provided that their attention has been directed to the need to be satisfied that the accused was silent because he did not dispute but on the contrary accepted the truthfulness of the allegations made in his presence concerning him.

Because the matters relevant to the attainment of that satisfaction are matters of fact, it may not always be necessary for the trial Judge to put these matters to the jury in his charge if they have been sufficiently brought to the attention of the jury by counsel. In such a case it will usually suffice if the trial Judge merely reminds the jury of what has been said by counsel. Provided he does this in such a way as to make it clear to the jury that the matters raised by counsel are relevant to the solution of the question facing the jury, that in our opinion suffices." (Emphasis added).

23 In the present case the jury had been fully reminded by the prosecutor and defence counsel of the allegation of B and the silence of the applicant during closing address. The trial judge summarised the prosecution and defence cases. Her Honour put the defence case thus:

"The defence would say that a lot of the material about the relationship and the home life, and the other incidents that were raised by the Crown, prove absolutely nothing when you analyse it and look at the specific offences. And that [B], her mother, should be seen to be a person who is naturally biased towards her daughter and therefore that you should not rely upon her evidence when you come to consider and analyse the evidence."

24 No exception was taken to the charge on this issue.

25 In a subsequent judgment of the Appeal Division of this Court in R. v. Alexander[27] a similar approach was taken. On an application for leave to appeal against conviction of murder, the Court considered circumstances where the applicant was alleged to have said to two acquaintances separately that the police could not prove a case against him and, further, had not protested his innocence about the charge of murder against him. The Court[28], after considering the authorities and Salahattin, in particular[29], observed that while special rules applied to statements made to police or other persons in authority, those rules had not been applied to statements made "to persons 'on even terms' ".[30] The Court then said, very aptly for the present case:[31]

"The issue here concerns an assessment of human behaviour. That assessment is best made by a jury. In our opinion, it was open to the jury to accept that in the context of the whole of the relevant conversation, the failure of the applicant to proclaim his innocence amounted to conduct inconsistent with innocence. Taken out of context, different considerations may well apply. It is true that this evidence has no great probative value, and we think it would have been wise for the judge to have so advised the jury, and to have given some assistance to the jury as to the use which might be made of the evidence. However, his failure to do so cannot in our view lead to a finding of error." (Emphasis added).

26 I observe in this case that there was never any suggestion the applicant did not hear the question from B. Her evidence was that he turned and looked and then looked back at the television. That evidence was never challenged in cross-examination by defence counsel. It was never put to B that she lied or that the applicant may not have heard her. The second point on this topic is that there was no suggestion that the applicant did not understand the question of B. Thirdly, the facts, as contained in the question were within the knowledge of the applicant. This "coalition of facts" put the matter in a position appropriate for the jury to draw the inference that the applicant was not guilty of the allegations by B, past or present or both as they determined. Issues as to the construction, form and meaning of the question and its likely consequence for the jury do not take account of the human experience and the assessment of human behaviour contemplated and applied in Salahattin[32] and Alexander.[33]

27 As in Salahattin,[34] I am satisfied on the basis of the way the evidence played out, together with its factual context, that the subject evidence was admissible. But the matter does not end there.

28 In R. v. Gallagher[35] this Court held that the silence of an accused to an implicating question over the telephone was admissible. Ashley, A.J.A., with whom Brooking, J.A. agreed, held that the trial judge was not asked to exclude the subject evidence and no exception was taken, therefore, the applicant could not in the circumstance rely on the point on an application for leave to appeal where it had not been raised below. Callaway, J.A. took a different view.[36] Ashley, A.J.A. in Gallagher considered Salahattin and Alexander and characterised the silence of the applicant as falling into the domain of consciousness of guilt.[37]

29 In my view, the silence of the applicant to the question of B when watching television is properly characterised as a consciousness of guilt matter. The case against the applicant turned on the credibility of A. The silence of the applicant to B's question was, in effect, used by the prosecution to do two things: first, to corroborate A's evidence; secondly, to portray the applicant's silence as an admission or consciousness of his guilt. On the authorities, silence may constitute an admission.[38] It may be put on the same plane as a lie or post-offence conduct.[39] Consistently for some years now, the Courts have moved to treat silence as consciousness of guilt cases generally requiring appropriate directions to the jury.[40] In R v Nguyen[41], Winneke P. said:

"However, where the conduct is being used, and if capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused".

30 Analagous to the Edwards[42] situation, the silence of the applicant here was relied on by the prosecution to constitute an admission. The majority in Edwards set out the obligation on the trial judge as to direction on a lie (and here I would substitute the conduct of silence, the turning and looking at B, then the turning away to resume watching television as requiring specific direction). Direction, it was said in Edwards was required on the circumstances and events constituting the applicant's conduct, instruction to take account of those matters only if satisfied that it reveals knowledge of the offence and that the applicant acted as he did because he knew he could otherwise be implicated. In my view, the cases have revealed a clarification of the silence situation and development beyond the approach taken in Salahattin and Alexander.

31 In this case the jury was fully entitled to take account of the question of the applicant, his reaction, conduct and silence. However, the jury should not have been invited to use the evidence as separate evidence of guilt or as evidence corroborating A in the absence of appropriate direction. None was given at all.

32 As in Gallagher the question arises that as there was no point on the subject taken below should the applicant be permitted to raise the point now?

33 It has been held by this Court, the fact that no exception was taken may constitute an indicator that a point taken on appeal may have had no real significance at trial.[43] The charges faced by the applicant were serious. He was legally represented and it might be readily assumed at a competent level of appropriate seniority. Generally, it should not be open to an applicant to be able to draw upon the non-direction of the trial judge at the appellate stage. As Brooking JA noted in Gallagher[44]:

"Even in what I have called a striking case, the failure of a judge to intervene of his own motion and determine whether the discretion should be exercised in favour of exclusion could not be characterised as a wrong decision of a question of law: it would not be shown to be necessarily anything more than an error of judgment in a situation in which the question whether intervention was appropriate depended on the facts.

The conclusion that an applicant who contends that the trial judge should have excluded evidence as unduly prejudicial in the exercise of his discretion must show that there has been a miscarriage of justice is supported by the analysis of Mahoney JA in Gidley."

34 The approach taken in Gallagher[45] and the clear statements in Edwards, Zoneff[46] and Nguyen lead me to conclude that the jury should not have been left without direction on the matter. The jury unequivocally, indeed with considerable assertion, were invited by the prosecutor to treat the silence of the applicant to B's question as an admission of guilt. The prosecutor said at the very beginning of his final address:

"...just imagine you come home one day and your wife said to you 'Look, have you been having an affair with our step-daughter or with our daughter?' That would be an outrageous allegation, you would think, if it hadn't been happening. You might think you'd protest that in the strongest possible terms, like, you know, 'bugger off' nothing like that's happened'. That is how you would expect someone to react to that sort of query coming from their wife about that sort of matter.

What have we got here? We've got a man who doesn't deny it, he doesn't admit to it, he just ignores that inquiry. What a curious thing, ladies and gentlemen. That's the first thing. The second one is this...you might ask yourselves in this case whether this girl's telling the truth or not...".

35 After description of the complaint the prosecutor then said:

"You think about that and I'll come back to those things at the end of my address to you, but they're just two things that struck me as so obvious in the case, and there can be really only one explanation, can't there, and that is he's guilty. Those two concepts do not sit with an innocent man at all".

36 At the end of his address the prosecutor said:

"I am just about finished ladies and gentlemen because at the end of the day, you heard her, you saw her and it probably doesn't matter what my spin on it is. I will take you back to those two things, right, that I started with. Why if someone made a false allegation to you, your wife said you have been having sexual intercourse with my daughter. Why wouldn't you be screaming from the rooftops that that is a load of bulldust. Why would you ignore her. You know you saw the defence barrister cross-examine her. Well he didn't answer you on many occasions about many things, fine. If that is how it was in this household, fine, but if someone said to you, even if you hadn't been talking to your wife for six months, if she said you've been rooting our daughter, have you? You'd say no, if you hadn't been wouldn't you? You couldn't imagine anybody that was innocent, having the nil response that he had. That wasn't the response or reaction of an innocent man".

37 In view of the way the evidence was led from B as to the question she put to the applicant, the way the matter was handled in cross-examination and the lack of any direction at all by the trial judge is troubling. The jury were left on their own to deal with this topic contrary to the authorities. The way in which the prosecutor put the matter was forceful. In my view there was a substantial risk of injustice to the applicant as to how the jury would treat the evidence and the address of the prosecutor. In my view the circumstances of this case and the way it was conducted lead to the conclusion that the second component of Ground 1 is made out.

38 Turning next to the other grounds, it is convenient to deal with Grounds 2 and 3 together. The second ground (Ground 2) was that the applicant's trial miscarried in that the prosecutor impermissibly elevated the issue of the accused's suggested failure to properly explain why the complainant would have made a false complaint. The third ground (Ground 3) was that the trial judge erred in failing to specifically direct the jury that even if they rejected the motive to lie raised in evidence - that did not necessarily mean that the complainant was telling the truth. These grounds were to the effect that the prosecutor impermissibly elevated the applicant's failure to explain why the complainant would have made a false complaint. The other component of Ground 3 was that the judge should have given a direction in that regard. At the outset it is to be observed that the Crown case turned on whether the complainant and her mother were believed. The applicant did not give evidence.

39 At trial, portions of the applicant's record of interview as to the motive of A to lie about the applicant were admitted into evidence. In the interview, when asked about the complainant's motive, the applicant said that A must "hate" him, "just didn't want [the applicant] as her father" and that the allegations were "one way of getting back at me". He also said A might want to avenge that he was "hurting her mum". In the preliminary stages before the empanelment of the jury, there were discussions and adjournments (including overnight) to finalise the admissibility of the record of interview. Eventually, the prosecution informed the judge that it was settled and, as events transpired, it included the questions as to motive. When discussion as to the admissibility of the record of interview occurred before the trial judge, it was not raised by defence counsel whether the questions and answers concerning motive were admissible. The relevant questions remained in at that stage without objection and other questions were excluded by agreement. Part way through the cross-examination of the complainant (and when the trial was well advanced) a discussion occurred between the trial judge and defence counsel about the fact of the changed attitude of the complainant towards the applicant after A moved out of the family home. Then, in that context, defence counsel asked that the specific motive questions and answers in the record of interview be excluded. The questions were:

"Q.147 Has anything ever happened between you and [A] to make her think these things happened to her?

A. Probably that she just didn't want me as her father. I don't know whether she's using this as a get back, I don't know. Because she probably sees that I'm hurting her mother at the moment.

Q.168 If you're saying [the allegations] are not true, why do you think she made those allegations?

A. The only thing I can think of was that she must hate me that much that this is one way of getting back at me, I don't know. Or whether I'm hurting her mum, or,... ."

(I will refer hereafter to Q,147 as "the first question" and Q.168 as "the second question".)

40 There was evidence from B that after A moved out the applicant excluded A from the family and did not want her name mentioned. Later in time, B and the applicant separated and eventually divorced.

41 It was argued for the applicant that a situation analogous to Palmer v. R[47] arose from the admission of the questions. It was said to the trial judge that the asking of the motive questions in the record of interview had such a prejudicial effect that it gave rise to a miscarriage of justice. The trial judge did not rule on the matter, rather, her Honour only engaged in a discussion with counsel. Her Honour informed counsel that the first and second questions did no more than provide evidence of the alienation of A from the family by the applicant. On that analysis, defence counsel made a forensic decision[48] and accepted the admission of the first and second questions, and seemed to no longer persist with the objection. Consideration of the transcript reveals that defence counsel appeared to attack the admissibility of both questions, and then the objection was abandoned.

42 In cross-examination, defence counsel put the complainant's credit squarely in issue. Extensive cross-examination ensued suggesting that A's allegations did not occur. She universally rejected the suggestions. Eventually, it was put to A that she did not report the allegations earlier in time because of her hatred of the applicant. She openly admitted her dislike and hate of the applicant, (indeed, in the order of 15 times through her evidence). In his closing address, prosecuting counsel unequivocally said the defence case was about credit and that the defence alleged the complainant was lying. The first and second questions from the record of interview as to motive were recounted to the jury in the prosecutor's address without criticism or comment. However, it was argued under Ground 2 that the prosecutor went beyond propriety in so doing on the basis of Palmer v. R.

43 In my view there are distinguishing elements in this matter from those in Palmer. First, in that case the accused gave evidence; here the accused remained mute. Second, in Palmer the accused was cross-examined by the prosecutor and it was then that questions as to motive were put. That did not arise in this case. Third, in Palmer, the accused said he did not know why the complainant would make the allegations up;[49] here, the applicant proffered explanations. Fourth, in this case contextual evidence was given by B about the ostracism of A from the family. A was also cross-examined about her delay in reporting her complaints against the applicant (some years after the alleged events and after the applicant and B had separated). The credit of A was challenged by defence counsel in this regard. Hence, the evidence, in particular the first and second questions and answers in the record of interview, was not within the parameters of "motive to lie" questions in the Palmer context. Fifth, the defence counsel initially agreed to the inclusion of the questions, purported to raise an objection at a later stage and, then, did not proceed with the objection. The circumstances in Palmer were quite different.

44 In Palmer, the majority held that asking an accused for an explanation of a complainant's "lie" amounts to inviting "the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused".[50] Later on, the majority said:[51]

"...a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished."

"It is necessary to distinguish between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie".

45 Some similarity can be drawn between the present case and the circumstances in R. v. Somers.[53] There, in a joint judgment, Phillips and Kenny, JJ.A. cautioned against overstating the consequences of Palmer. As observed in Somers, wrongful admission of evidence, even if it occurred in such circumstances, would not amount to a miscarriage where, inter alia the trial judge expressly charged the jury that the defence did not have to prove motive.[54] In this matter the trial judge expressly charged the jury on that topic.

46 In any event, the questions in this matter arose from the applicant's challenge to A's credit from the very time of the record of interview through to the end of the trial. As observed by McHugh, J. in Palmer (although in the minority):[55]

"...evidence concerning the motive or lack of motive in the complainant for falsifying her complaint is admissible not only in relation to her credit but also in relation to the facts-in-issue in the case".

47 The application of Palmer was considered by the Court of Appeal in R. v. Buckley.[56] There it was stated unequivocally that:[57]

"... any witness and particularly an accused who gives evidence ought not to be asked in cross examination whether another witness is telling lies or has invented something".

Again, the circumstances were quite different from the present because in Buckley the accused gave evidence and the proscribed questioning as to the complainant's motive to lie had been put to him.

48 Relevantly, a careful analysis of Palmer and Buckley and the other authorities was made by Eames, J.A. in R. v. Bajic[58] with whom Charles, J.A. and Byrne, A.J.A agreed. In Bajic, the accused gave evidence and was cross-examined repeatedly as to whether the complainant was lying when no such allegation had been made by the defence. The prosecutor in the closing address put the defence case as one that the relevant complainant was a liar. Eames, J.A. held that, in view of the force and extent of the cross-examination on the subject and its repetition, it may have given rise to a miscarriage of justice.[59] Importantly, for present purposes, it was held in Bajic that the situation would be different:[60]

"...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 insofar 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."

In this case, the complainant was cross-examined as to her credit and it was specifically put to her not only that she lied but that she did so because of her hatred of the applicant. It is this circumstance that takes the case outside Palmer and Buckley and places it within the permissible category described in Bajic.

49 Returning then as to the way Ground 2 was argued, it was put forward as a Palmer point. For the reasons I have stated, Palmer does not arise. That said, there remains the question as to whether the prosecutor improperly elevated the first and second questions in the record of interview during his final address. I think not. The matters raised by the prosecutor before the jury were concerned with the credit of A, her credit having being put in issue. It was proper, indeed appropriate, for the prosecutor to advance the matter as he did.

50 As for Ground 3, there was no obligation on the trial judge to direct the jury on the topic of the motive to lie for two reasons: first, the subject evidence did not arise under the rubric of a motive to lie in the Palmer sense; second, the issue was one of credit upon which her Honour properly charged the jury as to the onus on the prosecution, the acceptance or rejection of the witnesses' evidence, delay in the making of the complaint and the assessment of evidence. However, the trial judge in any event specifically directed the jury on the motive of A to lie, that being the defence case. The trial judge did not fall into error in the manner suggested by Ground 3.

51 It follows that I do not consider that Grounds 2 and 3 are made out. Ground 1 is made out and the application, in my view, ought be granted. I would make orders as follows:

1. The application for leave to appeal against conviction is granted;

2. The appeal is treated as instituted and heard instanter and is allowed;

3. The conviction sustained by the appellant in the Court below is quashed and the sentence passed thereon is set aside.

4. The Court directs a new trial be had.

52 In my opinion the application for leave to appeal should be granted and the appeal allowed for the reasons stated by Ashley, J.A.

53 The evidence of the mother's question and the applicant's reaction to it, and its elevation to a prominent position by the prosecutor was extremely prejudicial to the applicant and in my view the generality of the evidence deprived it of any significant probative effect.

54 If the jury construed the applicant's silence as an admission, notwithstanding the difficulties pointed out by Ashley, J.A., they could not know the acts constituting the sexual involvement the applicant had admitted, whether it was one of the acts alleged by the complainant, for example, touching her vagina or penile penetration of her vagina or some other act. Nor could they know when the admitted acts occurred. Accordingly, I do not consider that the evidence could found a verdict of guilty to any particular offence or offences.

55 Put at its highest I consider that the evidence of the accusation and the applicant's silence could only have been admissible as evidence of the nature of the relationship between the applicant and the complainant, which may have rendered more probable the truth of the complainant's evidence of the commission of particular offences. But which offences? Probably not those committed after the

accusation, and as to earlier offences, the jury could not tell when the applicant was admitting to having been sexually involved with the complainant. Even if the evidence was admissible as going to the relationship between the applicant and the complainant, the difficulties inherent in it would probably have led to its exclusion in the exercise of the trial judge's discretion.

56 The circumstances of this matter generally are set out in the reasons of the learned Chief Justice, which I have had the advantage of reading in draft. They need not be recapitulated. In my opinion the application for leave to appeal against conviction should be granted and the appeal allowed. I consider that the substance of Ground 1 has been made out, and that in the circumstances of this case the proviso to s.568(1) of the Crimes Act 1958 could not successfully be called in aid by the Crown.

57 Ground 1 reads as follows:

"The trial of the applicant miscarried in that the jury having been invited by the learned prosecutor to treat the applicant's silence in response to an accusation from his wife - as evidence of guilt, were not given any direction as to the use that could be made of this evidence."

The evidence pertinent to Ground 1

58 The evidence concerning the accusation there referred to, and the applicant's silence, was given by the applicant's former wife, who was also the complainant's mother. These were the key questions and answers in her examination in chief:

"Did you have a suspicion that something may be happening between your husband and your daughter? - - - Yes.

Did you have a conversation about that with your husband? - - - Yes, one day I approached Michael and I said, "Are you sexually involved with [the complainant], or have you been sexually involved with [the complainant]?"

All right, if I can just stop you there? - - - M'mm.

Are you able to say about how old [the complainant] was when you had that conversation? - - - She would've been over seventeen.

What did he say, if anything, when you asked him that? - - - He didn't, he just looked at me and looked away and continued to watch television.

No objection to receipt of evidence

59 As the Chief Justice has noted in her reasons, no objection was taken to the reception of that evidence. Had objection been taken, it is doubtful that it could have succeeded. Whether or not it was open to the jury to infer that the defendant's conduct in the face of the mother's question constituted an implied admission by the applicant that he had committed one or more of the charged offences, I think that his conduct was arguably pertinent to the relationship between the complainant and him at one time or another, and so was receivable subject to exercise of the discretion to exclude.

The prosecutor's final address

60 In his final address, the prosecutor invited the jury to pay particular attention to the evidence which I set out a moment ago.[61] He initially made this submission:

"There's a couple of concepts that I really would like you to think about when you go out and consider this matter, and they're simple ones really and I'll come back to them at the end of my address, but these ones are just ones that struck me as important in this case. What have we got - six women and six men. Just imagine, fellows - I'll leave you ladies out for just a moment and I'll come back to you - but just imagine that you come home one day and your wife said to you, 'Look, have you been having an affair with our stepdaughter or with our daughter?' That would be an outrageous allegation, you would think, if it hadn't been happening. You might think you'd protest that in the strongest possible terms, like, you know, 'Bugger off, nothing like that's happened'. That is how you would expect someone to react to that sort of query coming from their wife about that sort of matter.

What have we got here? We've got a man who doesn't deny it, he doesn't admit to it, he just ignores that inquiry. What a curious thing, ladies and gentlemen."

61 Then having addressed what he argued was a second important aspect of the case, he submitted:

"You think about that and I'll come back to those at the end of my address to you, but they're just two things that struck me as so obvious in this case, and there can be really only one explanation, can't there, and that is he's guilty. Those two concepts or ideas do not sit with an innocent man at all."

62 Towards the end of his address, he returned to the topic:

"I will take you back to those two things, right, that I started with. Why if someone made a false allegation to you, your wife said you have been having sexual intercourse with my daughter. Why wouldn't you be screaming from the roof tops that that is a load of bulldust. Why would you ignore her. You know you saw the defence barrister cross-examine her. Well he didn't answer you on many occasions about many things, fine. If that is how it was in this household, fine, but if someone said to you, even if you hadn't been talking to your wife for six months, if she said you've been rooting our daughter, have you? You'd say no, if you hadn't been, wouldn't you? You couldn't imagine anybody that was innocent, having the nil response that he had. That wasn't the response or reaction of an innocent man."

63 Counsel for the applicant, in his final address, also made a submission concerning this aspect of the mother's evidence:

"We now get to the male ovary part that the learned prosecutor in his endeavours to segregate the jury - he seems to have succeeded as I look up there. The simple problem is that he says this is apparently just for men. What would you say if this was said to you, or questioned: 'What did he say if anything when you asked him that? He didn't. He just looked at me and looked away and continued to watch television. So he ignored you? Yes'

Now later on of course with respect to questions: 'There were times when you asked questions, in fact many times you would have asked questions and he just would've perhaps looked at you as if it was a stupid question and returned to exactly what he was doing? He ignored a lot of my questions.' Now the prosecutor says wouldn't this have him jumping up and down and protesting a treat effectively? Well, would it? If someone asked you a question which was so completely out of line, so stupid, what are you going to do? You might - of course if he'd upped and said: oh no, I never said anything, I'd never do anything like that, you'd then say: did you see - he protested too much. If it had been like that he would've just ignored a stupid question. That's a problem with putting simplistic arguments like that. There's always the other side of the coin and just as relevant and more so in this particular case where [the accused] clearly did have that unfortunate habit perhaps of not answering the questions, and if indeed there was a suspicion by [the mother], would it be him that she would ask? No, of course not, it would've been [the complainant]. Did she do that. No."

Use to which the evidence might have been put

64 There is longstanding authority concerning the significance of a defendant's response to an out of court allegation of criminal conduct which is made in the presence of the defendant by a person speaking on even terms - whether the response be by words, silence, or some other behaviour.[62] It was summarized this way by Windeyer J in Woon v The Queen[63]:

"A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all."

65 That is not, however, entirely the end of the matter. It has been said that the conduct of an accused in response to a statement made in his presence might, though

not amounting to an admission, show consciousness of guilt of the offence charged.[64] As I understand it, that aspect of the potential significance of an accused's conduct focuses upon whether such conduct, though not amounting to an admission by him of facts stated, may afford evidence of something other than the truth of those facts, this displaying consciousness of guilt of the offence charged[65].

66 It was not contended by either side before this Court that the applicant's silence in the face of the accusatory question could have been treated at trial as anything but an implied admission.[66] Indeed, counsel for the Crown submitted that there was no safe foundation from which consciousness of guilt could have been inferred. In my opinion, such common ground was properly adopted. I add, for sake of completeness, that in any event the applicant's conduct by silence, for reasons which I later set out, probably could not have been accounted post-offence conduct in respect of at least one of the charged offences.

67 Counsel for the applicant submitted, against the background of the commonly assumed position, that in fact the prosecutor had invited the jury in his final address to treat the applicant's silence as evidence of consciousness of guilt of the offences charged. Counsel for the Crown, to the contrary, submitted that the prosecutor had argued that the applicant's silence could be taken to constitute an adoption or admission of the terms of the mother's accusatory question.

68 It is, I think, doubtful what the jury would have understood to be precise basis upon which the prosecutor urged them, in extravagant and sometimes inappropriate language, to conclude that the applicant's conduct was that of a guilty man and not the conduct of an innocent person. The prosecutor, unsurprisingly, did not use the phrase "consciousness of guilt" in his address. Neither, in terms, did he invite the jury to treat the applicant's silence in the face of the accusatory question as an admission.

69 Given the prominence which the particular evidence assumed in the prosecutor's final address, ambiguity as to the use to which he invited the jury to use that evidence, and the likely very prejudicial impact upon the applicant's case of such evidence being misused, I consider that it was necessary for the trial judge to give a direction which made it plain that the jury was not able to reason that the applicant had been silent out of consciousness of guilt of the offences charged, or any of them. But whether or not a direction along those lines was required - notwithstanding the fact that no relevant exception was taken at trial[67] - there were, in my opinion, other problems with the particular evidence which unarguably called for directions that were not given.

70 That takes me to possible use of the applicant's conduct as constituting an implied admission of offending conduct. When a question arises whether an accusation of criminal conduct made by a person speaking on even terms was admitted or adopted as being true, a number of issues may arise: first, was an admission made at all? Second, if yes, what was the subject-matter of the admission? Third, was the admission true in whole or in part? Subject to the supervisory role of the trial judge, these are jury questions.

71 In this case, the evidence having been left for the jury's consideration, an issue arose whether the applicant's silence in the face of the mother's accusatory question could be found to constitute an admission at all. There were a number of aspects to that issue. One of them was canvassed at trial. Evidence was led that the relationship between the applicant and the mother was such that oftentimes he did not respond to her questions. The jury was alerted to that aspect of the matter by counsel in their final addresses. The applicant's counsel further submitted that no response could have been expected to such an outrageous question[68].

72 Other aspects of the issue which I have just identified turned on the particular language of the mother's evidence. That language also gave rise to a question as to the subject-matter of any implied admission.

73 It will be remembered that the critical question asked by the mother (as recorded in the transcript) was -

"Are you sexually involved with [the complainant] or have you been sexually involved with [the complainant]?"

74 It is possible that the witness was rather saying that she asked a question which took one or other of two forms -

"Are you sexually involved with [the complainant]? or

"Have you been sexually involved with [the complainant]?"[69]

75 If the question was in the form recorded, what could any admission by silence be taken to comprehend: that by his silence the applicant admitted that he was then sexually involved with the complainant, or that he had been sexually involved with the complainant, or that he had been and presently was so involved?

76 Further, assuming for argument's sake that it was possible for the jury to answer that question other than by guesswork, it invites the further question whether the jury could have found that the admission related to any particular offence or offences. Interrelated with that question was the still further question of what could be made of the words "sexually involved?" Could the applicant's silence be taken as admission, for example, of penile intercourse?

77 If, however, the mother's evidence was intendedly that she had asked a question in one or other form, then further difficulties arose. If the witness could not say which form the question had taken, how could the jury have made a finding that the question had taken one form rather than another, the necessary precursor to deciding whether the applicant's silence constituted some admission? If the jury could not have done so then, all other things apart, it could not have been open to the jury to conclude that the applicant's conduct constituted an implied admission of any offence.

78 But even if the problem to which I have just referred was capable of resolution, there was still a question whether, for reasons previously described, the applicant's conduct might stand as an admission in proof of any particular offence. And assuming for argument's sake that it could, the subject-matter of any admission would depend upon the form which the accusatory question was found to have taken.

79 But even that is not the end of the matter. An admission that the applicant had been "sexually involved" with the complainant over some period of time could, I think, stand as relationship evidence in respect of offences allegedly committed within that period, and thereafter, even if such evidence could not stand as evidence of an admission of the commission of particular offences.

80 There was yet another problem concerning the subject-matter of any admission. It raised a further timing issue. Regardless which form the accusatory question took, according to the mother's evidence the complainant "would've been over seventeen" when the pertinent conversation took place. That evidence was understandably uncertain as to time. Regardless, it opened up the very substantial prospect that the conversation took place before the time at which at least one of the alleged offences was committed - in which case, all other things apart, it could not constitute an admission of such offence, though it might stand as relationship evidence.

81 Thus far I have focussed upon the evidence which the complainant's mother gave in evidence in chief. Now I should mention some evidence which she gave when under cross-examination. Its thrust was not to deny that a certain question had been asked, but rather to set the question in a suggested context. Thus:

"Indeed, at times, did you even become perhaps even jealous of the fact that they seemed close? - - - Possibly could have been.

Was it a time of that kind that you suggested - you made this comment about asking if he was having a sexual relationship? - - - No. No, he was very bitter towards [the complainant] at that stage."

And

"Have you ever told anyone before that you asked that question in part because of their closeness? - - - What do you mean? That question where you say you asked him whether he was having a sexual relationship? - - - Did I tell anybody else about it?

Yes, have you ever said that you asked that question in part because of their closeness? - - - No, it just - just came out."

82 It is trite that the evidence is the answer and not the question. Even so, the witness did not demur when it was twice put to her, in effect, that she had asked the applicant whether he was having a sexual relationship with the complainant. Nonetheless, it might be said that the questions focussed on the mother's motive for asking whatever question she did, and that the witness did not accede to the proposition that the actual question had been in such a form.

83 Assuming the jury concluded that the witness agreed that her question of the applicant had been phrased in the present tense, one area of uncertainty concerning analysis whether the applicant had impliedly admitted the commission of a particular offence or offences disappeared. But a question so phrased meant that any possible admission could not extend to all the charged offences.

84 In her charge, the learned judge did not refer to any part of the mother's pertinent evidence. Nor did her Honour make mention of the addresses of counsel in that connection. Neither again did she give any direction about the way or ways in which the different versions of that evidence, if accepted, might be used by the jury.

The need for directions

85 The particular evidence was beguilingly simple. But its apparent simplicity concealed a considerable number of real difficulties - both factual and legal. Having analysed, particularly, the issue of implied admission, I very much doubt, regardless how the jury construed the mother's question, that it was open to it to treat the applicant's reaction thereto as evidence of an admission in respect of any particular offence[70]. Logically, any assumed admission could have related to all or some or one of the offences said to have been committed up to the time at which the question was asked. In the end, then, I doubt that the evidence could have been used other than as evidence of the relationship that existed between the complainant and the applicant; and the jury should have been so instructed. But if that conclusion be wrong, then at least there was need for very clear instruction as to the manner in which the jury should deal with the evidence in the context of possible adoptive admission. For on a best view for the Crown, there were, as I have explained, not one but a serious of issues in that connection. They had to do with a piece of evidence which the prosecutor had highlighted, at times in extravagant language, both at the outset and towards the end of his final address.

86 I consider that, on the better view, the necessary direction required these things, in substance to be said.[71] First, the particular evidence relied upon by the Crown, depending upon certain findings of fact, could stand as evidence of the relationship between the accused and the complainant.

87 Second, in the particular circumstances, the initial step was for the jury to decide, if it could, what form the question had taken - that is, whether it had enquired of a past situation, a present situation, or both. If the jury could not be satisfied about that matter, then its consideration of the particular evidence could go no further.[72]

88 Third, it was next necessary for the jury to decide, if it could, approximately when the question had been asked.

89 Fourth, if the jury was able to decide what form the question had taken, and approximately when it had been asked, it was open to the jury to conclude that implicit in the question was an allegation that the accused had engaged in inappropriate sexual conduct generally with the complainant in the period embraced by the question. But it was not open to the jury to treat the question as alleging that the accused had committed any one or more of the particular offences with which he was charged. The asking of the question, moreover, provided no evidence of the truth of the implied accusatory statement.

90 Fifth, the jury could only use the accusatory statement implicit in the question as evidence of the truth of what was stated if it was satisfied that the accused had by his silence admitted the truth thereof.

91 Sixth, in considering the reaction of the accused to the accusatory statement implicit in the question, the jury should consider, first, whether it was satisfied that the accused had heard the question, and second, whether the circumstances were such that the accused should have been expected to make a denial of it. If it was satisfied of each of these matters then it might treat his silence as evidence of the truth of the accusatory statement implicit in the question. In those circumstances, it could treat the evidence as showing a relationship between the accused and the complainant - at least in the period embraced by the question, but not necessarily confined to that period - in which context the evidence of the particular charged offences could be considered.

92 Seventh, in his final address the prosecutor had dealt with the particular evidence as if it could be used in direct proof of the charged offences. That was not so.

The failure of applicant's counsel to take exception to the charge

93 It is implicit in what I have already said, and I consider it to be the case, that the failure of the applicant's counsel to take exception to the charge should not stand in the way of the success of the appeal. I should explain that opinion.

94 There is a strong inclination to hold a party on appeal to a course adopted at trial, particularly if the course likely involved a deliberate forensic decision. The reasons why that should be so have been explained in many cases.[73] But reluctance to allow a new case to be put on appeal yields, in a particular case, to the higher need of preventing a miscarriage of justice.

95 In the circumstances of this case, I consider that appellate interference is required. That is so for two reasons.

96 First, in my opinion there is a real risk that, in the absence of the necessary directions, the jury misused evidence which was highly prejudicial to the applicant and which was highlighted by the prosecutor in his final address.

97 Second, counsel for the applicant was placed in an extremely difficult position at the end of the judge's charge. On the one hand, the judge had said nothing about the particular evidence, and the prosecutor's address in that connection. But that was of doubtful value for the applicant. There was the problem that, in a short trial, the prosecutor had made the particular evidence a focal point of his address; and had done so in a way which obfuscated real complexities. Counsel would understandably have been concerned that the jury might still have that aspect of the prosecutor's address in the forefront of their minds. Those circumstances pointed in favour of counsel seeking a direction. On the other hand, counsel, understandably, would not have wished to have the particular evidence mentioned by the judge in isolation from the rest of her charge - even though, on careful analysis, almost all of what her Honour must have said would have been of assistance to the applicant. In the circumstances, I am not at all persuaded that counsel's failure to seek a direction in respect of the particular evidence should condemn the appeal to failure.

The proviso to s.568(1) Crimes Act 1958

98 It was not submitted for the Crown that, if one of the grounds of appeal was made out, the proviso to s.568{1) of the Crimes Act 1958 could have application so as to sustain the conviction. In my opinion, that was a correct approach. The prosecution case was, I think, a strong one; and it can be said that the jury's verdict shows that the evidence of the complainant was accepted. But a question arises how the jury arrived at that conclusion. The complainant's credibility was attacked. To a large extent, the prosecution case rested on her evidence. Absent the direction that was necessary in the circumstances of the particular case, the jury might simply have reasoned that, despite his later record of interview, the applicant had admitted each of the charged offences. Certainly the prosecutor's final address suggested that such an approach was available. In all, having considered the evidence, having had regard to the fact that the jury found the applicant guilty, and having had regard to the nature of the defect in the trial, I am not satisfied that the conviction should be sustained.

[1] The trial judge directed that the jury acquit the applicant on Count 3 (which was also a count for the offence of incest).

[2] The maximum sentence that a court can impose for maintaining a sexual relationship with a child under 16 years (Count 1) is 25 years' imprisonment, and the maximum sentence that can be imposed for the offence of incest (Counts 2, 4 and 5) is also 25 years' imprisonment: see Crimes Act 1958 s.47A(4) and s.44(1) respectively.

[3] See particularly paragraphs [4] - [10].

[4] At paragraph [10].

[5] At paragraph [9].

[6] The applicant abandoned an application for leave to appeal against sentence.

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

[8] See para [23] below.

[9] [1983] VicRp 49; [1983] 1 V.R. 521.

[10] [1994] VicRp 58; [1994] 2 V.R. 249.

[11] (1997) 96 A.Crim.R. 300.

[12] [1910] HCA 68; (1910) 11 C.L.R. 400.

[13] Ibid at 422.

[14] Isaacs, J. dissented but not on this point. The difference with the majority view (Griffith, C.J., Barton and O'Connor, JJ.) was that Isaacs J. considered a specific direction to the jury was warranted; see p. 425ff; however, it is noted that the approach has been criticised. See PK Waight and CR Williams_, Evidence - Commentary and Materials, 7th Ed._ (Lawbook Co. 2006), para [17.150].

[15] [1983] VicRp 49; [1983] V.R. 521.

[16] Ibid at 522.

[17] Ibid at 525.

[18] [1971] 1 W.L.R. 298.

[19] Ibid per McInerney and Murray JJ. at 526.

[20] Ibid at 527.

[21] Ibid. This passage was also cited and followed in R. v. Gallagher (1997) 96 A. Crim. R. 300 (per Ashley A.J.A. at 328, with whom Brooking and Callaway JJ.A. agreed).

[22] Ibid at 528.

[23] Ibid.

[24] Ibid at 528 and 535.

[25] Ibid at 530.

[26] Ibid at 531-2.

[27] [1994] VicRp 58; [1994] 2 V.R. 249.

[28] Crockett, Southwell & Cummins JJ.

[29] Ibid at 262.

[30] Ibid at 263.

[31] Ibid at 263.

[32] At 531.

[33] At 263.

[34] [1983] VicRp 49; [1983] 1 V.R. 521 at 532.

[35] [1997] 96 A Crim. R. 300

[36] See p.315

[37] At p.329

[38] e.g. see Salahattin, Alexander, Gallagher

[39] e.g. see the discussion in JD Heydon, Silence as evidence[1974] MonashULawRw 4; , [1974] 1 Mon. U.L.R 53, 56, 58, 60.

[40] See Gallagher, Ibid 329

[41] [2001] 118A. Crim. R 479

[42] Edwards v R [1993] HCA 63; [1993] 178 CLR 193

[43] R. v. Gallagher (1997) 96A. Crim. R 300 at 308 per Brooking J.A. and 323 -3 per Ashley, A.J.A.

[44] Ibid 309.

[45] Ibid, 329

[46] Zoneff v. R. [2000] 200 CLR 234, 245

[47] [1998] HCA 2; (1998) 193 C.L.R. 1.

[48] R. v. DJT [1998] 4 V.R. 784 at 788, per Brooking, J.A.

[49] [1998] HCA 2; (1998) 193 C.L.R. 1 at [6].

[50] Ibid at [8].

[51] Ibid at [9].

[52] Ibid at [10].

[53] R. v. Somers (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips, C.J., Phillips and Kenny JJ.A., 15 June 1998).

[54] Ibid, citing Brennan, C.J. , Gaudron and Gummow, JJ., in Palmer v. R. [1998] HCA 2; (1998) 193 CLR 1 at [8].

[55] [1998] HCA 2; (1998) 193 C.L.R. 1 at [50].

[56] [2004] V.S.C.A. 185 at [9].

[57] Ibid, at para [9] per Nettle, J.A., with whom Winneke, P. and Charles, J.A. agreed.

[58] [2006] 12 V.R. 155 [73]-[82].

[59] Ibid at [84].

[60] Ibid at [65].

[61] It is possible, but improbable, that he also had in mind certain evidence given by the witness in cross-examination. I will later refer to that evidence.

[62] See, eg. R v Mitchell (1892) 17 Cox CC 503 at 508; The King v Grills [1910] HCA 68; (1910) 11 CLR 400 at 413 per Barton J, 417 per O'Connor J, and at 422 per Isaacs J (who dissented in the result, but not in point of principle); Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529 at 541 per Windeyer J; Parkes v The Queen [1976] 3 All ER 380(PC) at 383 per Lord Diplock, for the Board.

[63] [1964] HCA 23; (1964) 109 CLR 529 at 541 (his Honour dissented in the result, but not on this point of principle).

[64] See R v Thomas [1970] VicRp 87; [1970] VR 674 at 679 (Full Court), R v Salahattin [1983] VicRp 49; [1983] VR 521 at 527 (Full Court), and R v Alexander [1994] VicRp 58; [1994] 2 VR 249 at 262 (Appeal Division).

[65] See Woon, Ibid, at 535-537 per Kitto J and at 539 per Taylor J.

[66] Which begs the question - of what?

[67] Of which, more later.

[68] Which assumes a finding that the applicant heard the question.

[69] I note that a copy of the transcript was provided to the jury - though only as an aide memoire - the judge observing that it was common ground that the transcript contained certain transcription errors.

[70] I here assume findings by the jury that the applicant heard the question, and that a denial should have been expected.

[71] If the correct view was that it was possible for the jury to reason that the applicant's reaction could stand as evidence of an admission that he had committed a particular charged offence or offences, then a direction should have been given, dealing both with implied admissions and relationship evidence, which built upon the direction which I consider was required.

[72] It being, in substance, not disputed that some question had been asked.

[73] See, for instance, R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643 at 661-662, R v Gallagher [1998] 2 VR 671 at 681 per Brooking JA, and R v GAM [2003] VSCA 185 at [10] per Winneke P.