R v Macfie [2002] VSCA 51

5. The directions given at this trial with respect to uncharged acts fell well short of the requirements identified in R. v. Grech[1]. The important point is that they fell short as a matter of substance. As the judgment in that case expressly says, the summary at 614 was not intended as a model direction but as a guide to the substance of what was required. It may be that, in a different context, some of the language used by the judge would have been sufficient. [2]

8. In R. v. J (No. 2)[3], in a judgment in which Winneke, P. and Charles J.A. concurred[4], I said[5]:

"In New South Wales [the jury] are told not to reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged. In this State they are told that they must not reason that, because the accused engaged in particular conduct on one or more earlier occasions, he is the kind of person who is likely to have engaged in similar conduct on the occasion charged." (Footnote omitted.)

12. The reasons for the difference were explained in R. v. Grech by way of a gloss on the following passage in the judgment of Hunt, C.J. at C.L. in R. v. Beserick[6]:

"If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged." (Italics in the original, but underlining added.)

16. In R. v. Grech, this time with the concurrence of Phillips, C.J. and Smith, A.J.A., I said[7]:

"[I]n Makin v. Attorney-General (N.S.W.) [1894] A.C. 57 at 65, Lord Herschell, L.C. spoke of the accused being `a person likely from his criminal conduct or character to have committed the offence for which he is being tried'. See also Markby v. R. [1978] HCA 29; (1978) 140 C.L.R. 108 at 116. The second group of words that I have underlined in the passage from R. v. Beserick is to the same effect, although the concept of propensity is only implicit and their use of `may' and `must' is colloquial rather than strictly logical. Even if the jury are satisfied that the accused did something wrong on a previous occasion, they must not reason that he is even likely on propensity grounds to have committed the offence charged." (Italics in the original.)

20. Two points emerge from the foregoing. The first is that there is no magic formula that has to be used. The jury needed to understand the limited purpose for which the evidence of uncharged acts was admitted. If they accepted that evidence, it indicated the relationship between the appellant and M but it was not a substitute for evidence of the counts on the presentment and the jury needed to be warned against what is commonly called "the forbidden chain of reasoning". A jury charged using the language of Hunt, C.J. at C.L. in R. v. Beserick would ordinarily be given sufficient warning. The formulation preferred in R. v. Grech and R. v. J (No. 2) is intended to be clearer and more accurate, but that is all.

23. The second point is that the second group of words underlined in the passage from R. v. Beserick set out above (beginning "reason that") was not understood as directed to a topic other than propensity. Those words and paragraph (b)(ii) of the outline in R. v. Grech at 614 were understood to be directed to the same topic.[8]

28. On 16 August 1999 the appellant was arraigned and pleaded not guilty in the County Court at Warrnambool to a presentment containing 21 counts alleging sexual offences against four girls. There were four counts of rape, 11 counts of an indecent act with a child under 16 years of age, five counts of sexual penetration with a child aged between 10 and 16 years and one count of an indecent act in the presence of a child under 16 years of age. The offences were alleged to have been committed at the farm of a family of one of the complainants between 5 April 1996 and 15 June 1996. The girl, whom I shall call "M", and who was then 15 years of age, met the appellant while he was employed at a carnival in Portland. Her parents invited him to stay at their property. The appellant slept in the caravan behind the house. The other complainants, who were aged 12, 14 and 15 years, were friends of the girl who lived at the farm. I shall call them "R", "S" and "K".

31. At the conclusion of the trial the appellant was found guilty on two counts of rape, nine counts of an indecent act with a child under 16 years of age, two counts of sexual penetration with a child between 10 and 16 years of age and one alternative count of attempted sexual penetration with a child between 10 and 16 years of age. The appellant was acquitted on the remaining counts. On 28 January 2000 the appellant was sentenced to a term of five years' imprisonment on one of the counts of rape and to a term of four years' imprisonment on the other count of rape. He was sentenced to a term of 12 months' imprisonment on each of the counts of an indecent act, to a term of 15 months' imprisonment on the count of attempted sexual penetration and to a term of two years' imprisonment on each of the counts of sexual penetration. A measure of cumulation produced a total effective sentence of eight years' imprisonment. On 29 October 1999 the appellant had been sentenced to a total effective term of eight years' imprisonment with a non-parole period of six years' imprisonment in respect of a count of maintaining a sexual relationship with a child under 16 years of age and one count of abduction of a child under 16 years of age. The judge who sentenced the appellant on 28 January 2000 ordered that five years of the total effective sentence which he imposed were to be served concurrently with the sentence the appellant was then undergoing and fixed a new non-parole period of eight years' imprisonment to commence on the date on which the earlier sentence was imposed.[9] On 24 October 2001 the appellant appeared unrepresented before the Court of Appeal and sought leave to appeal against both conviction and sentence. The Court formed the view that there was at least one arguable ground of appeal against conviction and at least one arguable ground of appeal against sentence and granted leave to appeal against both conviction and sentence in the expectation that the appellant would be granted legal aid and be represented. That expectation has now been fulfilled.

34. The Crown case at trial consisted of the evidence of the four complainants, the mothers of two of the complainants, two friends of the complainants, doctors who examined two of the complainants and a policeman who interviewed the appellant. The appellant denied any wrongdoing in his interview. The appellant neither gave evidence himself nor called any evidence. One of the complainants gave evidence of sexual relations between herself and the appellant in addition to the acts the subject matter of the charges.

37. The first incident was said to have occurred on the farm soon after the appellant came to stay. The appellant was with two of the complainants in the stables. The appellant said he would show them where their milk glands were. In the course of his explanation the appellant rubbed around the breasts of each of the girls. That constituted two of the counts of an indecent act with a child under 16 years of age. The count of attempted sexual penetration of a child between the ages of 10 and 16 years concerned an occasion when the appellant asked M to have sex with him. He told her he would put her in his will and give her a horse. They went to the stables, he pulled her pants down, laid her on a couch and, she said, "He started stroking my fanny ... and then he put his dick inside me." Later the appellant told the complainant that he wanted to have sex with her again, and they had sexual intercourse. That constituted a count of sexual penetration of a child between the ages of 10 and 16 years. M had a friend, R, who sometimes stayed with her. On some of those occasions M slept with the appellant in his caravan, and when she was with her, R joined her. On one occasion the appellant had sexual intercourse with the friend, notwithstanding that she told him to stop. After that the girl masturbated the appellant, and then he had sexual intercourse with both girls. On another occasion M and R were sitting in M's room when the appellant entered. The appellant talked to the girls about pregnancy and how the belly stretched. In the course of his explanation the appellant pointed and rubbed around the groin and vagina of the girls. He took the hand of M and placed one of her fingers inside R's vagina. He then grabbed R's hand and put her fingers inside M's vagina. Afterwards he had intercourse with both girls. M said that at this time she was having sexual intercourse with the appellant four or five times a week.

40. On one occasion R was left alone with the appellant in the stables. He told her that he had $38m., had had heart operations and had worked for the Royal Flying Doctor Service and that he was going to buy a stud farm for R and M to operate. He then started feeling R's breasts. He pulled his pants down and showed her his penis. He pulled her pants down, put his finger inside her vagina and "wanked himself". On another occasion the appellant got into bed with both R and M. He began cuddling R, touching her on the breasts and placing his finger inside her vagina. He then put his penis inside her. He did so twice and in between he "wanked" himself.

43. S met the appellant at M's home. On an occasion when S and M were in the stables, the appellant told them about his $3m. which he said his sisters were trying to get. He also told them about his technique for determining whether women were pregnant, which he said he learned in the Royal Flying Doctor Service. He told them he could tell if a girl was pregnant by feeling above the womb and above the pelvic area. He demonstrated his technique on S, poking one of her breasts and then feeling round her stomach just above the pubic hairline inside her underpants.

46. K met the appellant at M's home. K visited M, and was called into the caravan by the appellant. She sat next to the appellant and he asked if he could feel her. She said no, but he lifted her top and grabbed her, feeling her breasts. She immediately pulled her top down and went and sat on the other side of the room.

49. Counsel for the appellant did not contend that the verdicts were unsafe or unsatisfactory in the sense that this Court could conclude that there was a reasonable doubt as to the guilt of the appellant which the jury should also have experienced notwithstanding their advantage in seeing and hearing the witnesses.[10] Rather, he contended that the verdicts were rendered unsafe or unsatisfactory by the specific errors complained of in the other grounds of appeal.

52. When the hearing of the appeal commenced we granted leave to add two new grounds of appeal. They were:

"2. The learned trial judge erred in failing to give a propensity warning. 3. The learned trial judge erred in directing the jury as to consciousness of guilt."

In the course of the appeal ground 2 was refined and became two grounds, as follows:

"2. The learned trial judge erred in failing to give a propensity warning - (a) with respect to the counts on the presentment; (b) with respect to uncharged acts. 2A. The learned trial judge erred in his directions with respect to uncharged acts."

58. The first of the new grounds arises from the directions given by the trial judge as to the use the jury could make of evidence and findings with respect to other counts and uncharged acts in considering particular counts. The prosecutor did not contend that evidence in respect of any one count was admissible in respect of other counts. His Honour gave a direction to the jury as to their duty to consider each count separately and determine each count on the evidence led in respect of that count. He continued:

"And the process is not, must not and cannot be because he is guilty or not guilty, as the case may be, of one, therefore he must be guilty or not guilty of the next or the one after or all the others."

His Honour gave a similar direction as to the manner in which the jury was to approach evidence of uncharged acts. He said:

"Now, another little warning I have to give you, you heard that [M] slept with the accused pretty regularly, and you may consider that you have heard about other acts, sexual acts, that may amount to crimes that occurred between the accused man and [M] in particular, but it does not matter, other sexual acts with which the accused man has not been charged. Now, mention was made of those facts, for one reason and one reason only. The only reason you heard about that other sexual behaviour is so that you can see the overall in its proper context and to have the material to assist you in understanding the prior relationship between the parties at the times that the alleged crimes are alleged to have been committed. You must use that evidence of other uncharged sexual acts in a proper way, and you must not use them in an improper way. You cannot say that just because there have been other acts of intercourse, therefore he must be guilty of any of the ones with which he is charged, it is rather like the independent consideration of the charges. You only know about that so you can better understand the relationship of the people involved, and that is its only use. You must not say that the accused is guilty of any crime with which he is charged because you find that he engaged in other earlier sexual conduct of any kind."

64. Counsel for the appellant pointed out that the trial judge did not tell the jury that they were not to reason that if the applicant engaged in the conduct the subject matter of a count or an uncharged act, he was the kind of person who was likely to have committed the offences with which he was charged.

67. In my opinion it was incumbent upon the trial judge to give such a direction even though the jury presumably followed the direction not to reason that as the appellant was guilty of one count, or had committed an uncharged act, he must be guilty of other counts. In the absence of an appropriate warning they may well have thought that because the appellant was shown to have committed offences against or engaged in sexual conduct with young girls, he was a paedophile who was more likely as a consequence to have committed other like offences.[11] Although no exception was taken to the charge, I consider that the failure to give the direction vitiates the verdict, for in my view it did lead to a miscarriage of justice.[12] I doubt that the absence of an exception was the result of a deliberate choice made to obtain a forensic advantage.

70. The direction given by the trial judge as to the use which the jury could make of the evidence of uncharged acts was ambiguous and may have led the jury to misuse the evidence. The evidence of uncharged acts was limited to evidence of sexual relations between the appellant and M. While the trial judge did say that the only use which could be made of the evidence was to place the evidence relating to the counts in context and to understand the relationship between the parties, he did not make it clear that the context was limited to the events involving the complainant M and the only relationship which the evidence explained was that between the appellant and M. The jury may have thought that the parties referred to by the trial judge were the appellant and all the complainants and may have proceeded to use the evidence as bearing upon the relationship between the appellant and complainants other than M. Overall, it does not appear that the direction as to uncharged acts fulfilled any of the requirements identified by Callaway, J.A. in R. v. Grech.[13]

73. Ground 3 is based upon the following passage from the charge. The trial judge said to the jury that a witness

"... told you of a phone call in which she overheard the accused behaved a certain way, saying he would get the police onto them or some such thing. It seems to me that that evidence was led to show that his behaviour was such that he demonstrated a consciousness of his guilt and that his evidence can be used in that way as establishing he is guilty, he behaved as if he was guilty, so it seems to me that is the way the evidence was put, so I had better give you some directions about that."

77. Evidence of the telephone conversation may have been led for the purpose of establishing that the appellant had exhibited consciousness of guilt. The prosecutor, however, in his address to the jury, did not seek to make any use of the evidence. Nor did counsel for the appellant refer to it. The trial judge's remarks apparently were an attempt to identify the significance of the evidence. Unfortunately his Honour failed to accurately state the substance of the conversation or to identify in respect of which of the 21 charges relating to four complainants it could be said that the appellant had exhibited a consciousness of guilt. In my view the conversation could not reasonably have been construed as displaying consciousness of guilt and the jury should have been instructed to disregard the evidence.[14]

80. For the foregoing reasons I am of the opinion that the appeal should be allowed and a re-trial ordered.

85. I agree for the reasons advanced by Buchanan, J.A. in his judgment. I also endorse the further remarks of Callaway, J.A.

[1] [1997] 2 V.R. 609 at 614.

[2] Compare R. v. MCG [2001] VSCA 17 at [120].

[3] [1998] 3 V.R. 602.

[6] (1993) 30 N.S.W.L.R. 510 at 516.

[7] At 613. I draw attention to the next paragraph on that page too.

[8] Compare Cook v. R. [2000] WASCA 78; (2000) 22 W.A.R. 67 at [79]- [94] per Anderson, J., apparently qualifying the approval of R. v. Grech in Eastough v. R. [1998] W.A.S.C.A. 53 at 2 per Kennedy, J., 7 per Pidgeon, J. and 11 per Steytler, J., agreeing with Kennedy in respect of ground 4.

[9] Cf. R. v. Rich [2002] VSCA 17 at [9] and [106].

[10] See M v. R. [1994] HCA 63; (1994) 181 C.L.R. 487.

[11] See R. v. TJB [1998] 4 V.R. 621 at 633 per Callaway, J.A. and 634 per Buchanan, J.A.; R. v. J (No. 2) [1998] 3 V.R. 602 at 642 per Callaway, J.A.; R. v. T (1996) 86 A.Crim.R. 293 at 299 per Southwell, A.J.A.

[12] R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643 at 661-2 per Crockett, McGarvie and Southwell, JJ.; R. v. Osland [1998] 2 V.R. 636 at 651-2 per Winneke, P., Hayne and Charles, JJ.A.

[13] [1997] 2 V.R. 609 at 614.

[14] Compare Zoneff v. R. (2000) 200 C.L.R. 234 at [24]-[25]. See also R. v. Renzella [1997] 2 V.R. 88 at 92 point 11 per Winneke, P., Charles and Callaway, JJ.A.