R v Macfie

2. I doubt that the question set out by Eames, J.A. in [52] would be a leading question or contravene the rule against impeaching the credit of one's own witness, but those points need not be decided. I agree with his Honour that the failure to ask such a question did not render the applicant's trial unfair. I also find it unnecessary to decide whether the accomplice warning was appropriate. I agree with his Honour that it did not prejudice the applicant. Subject to those qualifications, I agree in the reasons prepared by Eames, J.A., which I have had the benefit of reading in draft, and in the orders that he proposes.[1]

6. For the reasons stated by Eames, J.A., I would refuse the application for leave to appeal against conviction, allow the application for leave to appeal against sentence and re-sentence the applicant as his Honour proposes.

11. This is an application for leave to appeal against conviction and sentence. The applicant was tried in the County Court at Warrnambool on 16 counts of sexual offences committed against four girls under the age of 16 years. The jury returned verdicts of guilty on 12 of the 16 counts and acquitted the applicant on the remaining counts. The applicant admitted prior convictions and was sentenced as a serious sexual offender on all counts. On 29 January 2003 he was sentenced by his Honour Judge Cullity to a total effective sentence of eight years' imprisonment and his Honour directed that four years of that sentence be served concurrently with a

sentence the applicant was then undergoing, making a new head sentence of 12 years' imprisonment. A new non-parole period of four years was fixed, to commence on 29 January 2003, the date of sentencing.

16. As I will later more fully discuss, the trial before Judge Cullity was a retrial. The applicant had previously appeared for trial before his Honour Judge Crossley and a jury on a presentment containing 21 counts of offences concerning the same conduct against the same four girls. At the conclusion of the trial before Judge Crossley the applicant was found guilty on fourteen counts comprising two counts of rape, nine counts of an indecent act with a child under 16 years, 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 the ages of 10 and 16 years. On the remaining counts he was found not guilty. The applicant appealed and on 17 April 2002 the Court of Appeal allowed the appeal against conviction and ordered a retrial, that being conducted before his Honour Judge Cullity.[2]

19. Counsel for the accused submitted to Judge Cullity that one count on the presentment, which alleged sexual penetration of a child aged between ten and sixteen years, should be severed. His Honour agreed to that request and a separate trial was first conducted before Judge Cullity, with respect to that single count, prior to the commencement of the trial now the subject of the present application. On 6 December 2002 the jury found the applicant not guilty on that count.

22. The presentment having been re-numbered, the trial with which we are concerned commenced before Judge Cullity on a presentment containing sixteen counts. The offences were alleged to have occurred between 5 April 1996 and 15 June 1996. The jury returned guilty verdicts on all but four counts. The applicant was convicted on seven counts of indecent acts with a child under sixteen years, one

count of attempting sexual penetration of a child aged between ten and sixteen years and four counts of sexual penetration of a child between ten and sixteen years.

26. At the time of sentencing Judge Cullity was advised that the applicant had been convicted and sentenced to imprisonment with respect to sexual offences which had been committed against a 13 year old child in 1997, that is, at a time subsequent to the present offences. For those offences the applicant had been sentenced by his Honour Judge Walsh, on 29 October 1999, to a total effective sentence of eight years' imprisonment with a non-parole period of six years. Judge Walsh declared 600 days pre-sentence detention had been served under that sentence. Judge Cullity sentenced the applicant to a total effective sentence of eight years and directed that 48 months of the sentence thus imposed be served concurrently with the sentence he was then undergoing. The effect of the sentence was that four years had been cumulated on the eight year head sentence imposed by Judge Walsh, producing a total effective sentence of twelve years. A new non-parole period of four years from the day of sentence was imposed by Judge Cullity.

30. These offences were alleged to have all occurred between 5 April and 15 June 1996 at Portland. The applicant was 56 years of age at the time of the offences and the complainants were M (who was then aged 15), R (aged 15), K (aged 14) and S (aged 12). All offences were alleged to have occurred at the home of the complainant M, being a rural property at Portland. M had met the applicant while he was employed at a carnival and he had subsequently been invited by the parents of M to reside on their property. He slept in a caravan at the rear of the family home. The other complainants were all friends of the complainant M.

33. The various counts dealt with on the presentment may be grouped together, so as to reflect particular occasions when the offences were alleged to have been committed.

41. On each of these counts the applicant was found guilty. The offences occurred on the one occasion soon after the applicant moved into the caravan on the property, in or about Easter 1996. The prosecution case was that the applicant together with M and S were in the stables on the property and after a conversation in which the applicant was talking about "female milk glands" the applicant pulled down M's bra and touched her breasts (Count 1) and did likewise to S (Count 15). S told the Court that the applicant also pulled her pants down a little bit and poked around her stomach just above the pubic hairline (Count 16).

Count 2, attempted sexual penetration of a child aged 10-16 (M)

45. M said that a couple of weeks after the first incident the applicant asked her if he could have sex with her so that he could put her name on a will in order that his sisters would not get his money. The applicant told M that he would inherit $3 million. She agreed to have sex with him and they went to the stables whereupon the applicant put his finger inside her vagina and attempted to place his penis inside her. She was unable to say whether he succeeded in entering her vagina with his penis and after ten minutes she told him to stop, and he desisted.

Count 3, sexual penetration of a child aged 10 to 16 (M)

49. This occurred in the applicant's caravan. M said to the jury that her mother told her "that Johnny wasn't feeling too good; his heart was hurting and he wouldn't mind if I stayed with him for the night". M and the applicant thereupon went to the caravan whereupon the applicant laid M on her back, removed her pants, stroked her vagina and then inserted his penis into her vagina for about ten minutes.

Count 5, sexual penetration of a child aged 10 to 16 (M)

Count 13, sexual penetration of a child aged 10 to 16 (R)

57. On each of these counts, save for count 12, a verdict of guilty was entered. These events occurred on an occasion where R visited the home and was babysitting with M. R and M were to sleep in the caravan that night. R believed that the applicant was staying at a hotel. R and M went to bed fully clothed and at about 9.30 p.m. R was asleep when the applicant entered the caravan and joined them in the double bed. R awoke to find the applicant touching her breasts over her top (count 11). She pushed his hands away but the applicant then pulled down her pants and underpants to her knees and placed his penis inside her vagina (counts 12 and 13, in the alternative). R was telling him to stop and the applicant told R "that if I didn't do it I would ruin M's life". M then pulled the applicant away from R and masturbated the applicant's penis (count 4). The applicant then returned to R and she said he again penetrated her vagina with his penis. This allegation of a second penetration was the subject of the single count on the earlier separate trial, on which he was found not guilty. Both R and M were telling him to stop. He did so but then started having sex with M (count 5). M said in her evidence that around this time she was having sexual intercourse with the applicant nearly every night for about a month.

Count 9, sexual penetration of a child aged 10 to 16 (R)

66. These events were said to have occurred in the stables. On counts 8, 10 and 14 the applicant was found not guilty. R gave evidence that on this occasion she was alone with the applicant in the stables and the applicant exposed his flaccid penis (count 6) then touched her breasts (count 7). She told him to stop, and stood up from the couch she had been sitting on, but the applicant grabbed her by the hips and pulled her pants down and inserted his finger inside her vagina (counts 8 and 9 were alternatives). The applicant said that he wanted to enter her with his penis but R pulled her pants up and ran out of the stables and as she was doing so she saw the applicant masturbating (count 10). Having left the stables R went to the caravan where M and K were present. The applicant joined them. He touched K's stomach and attempted to touch her breasts but she pushed him away (count 14). R left the van and got her horse then returned and collected K and they together left the property.

69. There was only one ground of appeal initially, namely, that the convictions were unsafe and unsatisfactory. At the hearing of the application before us Mr Kassimatis, counsel for the applicant, applied to substitute five grounds of appeal for the existing ground. The complaint that the convictions were unsafe and unsatisfactory is not a ground now pursued. We told counsel that we would hear full argument on all proposed grounds and rule later on the question whether to grant to amend the grounds.

73. This proposed ground asserts that the trial miscarried as a consequence of the prosecutor's "attack" on the evidence of the parents of M, as to "their alleged complicity in the applicant's offending". Complaint is also made under this ground concerning the directions given concerning the prosecutor's address.

76. The parents had been called by the prosecutor on the trial which had been conducted before Judge Cullity as to the single count which had been severed. That count concerned the complainant R, and the trial concluded with a not guilty verdict on that count. Three days later the trial relevant to the present application commenced and the parents once again were called by the prosecution. In the course of his final address in the earlier trial on the single count the prosecutor (who also appeared as counsel on the trial with which we are concerned) made no adverse comment to the jury concerning the evidence of the parents of M. The mother of M had first given evidence on the occasion of the first trial concerning the present allegations, which had been conducted before Judge Crossley. Whether her husband gave evidence on that trial was not stated by counsel before us but it is clear that no comment was made adverse to the mother on that occasion.

79. When for the third time the mother was called as a prosecution witness, this time on the present trial, she gave similar evidence to that given on the previous occasions, including evidence as to the date of birth of her daughter and as to the layout of the bedrooms in the house and their proximity to the caravan. Photographs were produced to assist her, and the jury, in that task.

82. In this trial the mother said that she had invited the applicant to visit the farm and that the applicant told her that he had been working for the Royal Flying Doctor Service but had become ill and received a pay-out from that service of $3.5 million. She said that he told her that he had a heart condition which required him to be supervised 24 hours a day and he suggested that her daughter M could look after him. The mother agreed to that. The mother said that the applicant slept in the caravan, which closely adjoined the house, but he came into the house for meals and to shower. Her daughter M slept in a room which was outside the main house, built onto a veranda, and which was approximately five metres from the caravan. The mother said that she knew that on occasions M slept in the caravan with the applicant but she told the jury that she was not aware, nor had she suspected, that sexual relations had been taking place. The mother said that she also knew that on occasions the complainant R came to stay at the farm and when she did R also slept in the caravan, with both the applicant and M.

85. Continuing her evidence-in-chief, the mother said that she understood that her daughter M was sleeping in the caravan with the applicant and she had seen the applicant, and M and R, all together on the bed in the caravan. She said that she knew that the applicant and R had slept together in the same bed in the caravan and that her daughter M was also present when that happened. She said that quite a few times M and R slept in the same bed in the caravan as did the applicant. The mother agreed that the applicant sometimes also slept in the same bed as M in M's bedroom on the veranda of the house, and she knew those facts at the time when these offences were alleged to have occurred. She had not suspected, however, that there was a sexual relationship between her daughter and the applicant. She said that the night before the police attended the property on 17 June 1996 her daughter M was sleeping with the applicant in her own room. The complainant R had gone home that night. Over the week prior to the police attending, so the mother said, her belief had been that the applicant had been sleeping, alone, in the caravan.

88. Under cross-examination, the mother agreed that her daughter had never made any complaints to her about sexual misbehaviour on the part of the applicant. She agreed that when she had seen M and the applicant on the bed together they were fully clothed. She agreed that on the day before the police attended the house the applicant had moved into the bedroom of her daughter M in order that another daughter, who had come to visit (together with her young daughter), could sleep in the caravan.

91. The mother agreed to defence counsel's proposition that when the police had put to her allegations of sexual misconduct she was not able to believe the allegation because, she agreed, it did not fit with anything she had seen in the previous two-and-a-half months. She agreed to the proposition that she thought at the time that the allegations had been made up by her daughter and her friend. She agreed that she had thought that had been done in order to obtain money from the applicant.

94. The mother agreed with counsel that her daughter had a relationship with her which enabled her daughter to discuss intimate matters. Her daughter had told her about having sex with a young man, but had not said she was having sex with the applicant. Also, R had never complained to her about the applicant. She agreed that it was the complainant R who had asked the mother if she could sleep in the same bed as the applicant and M. She agreed that after that had occurred once, then R returned on numerous other occasions and again slept in the same bed as the applicant and M. She agreed to the proposition that she had seen for herself "the three of them in the bed, at times, and never saw any problem".

97. In re-examination by the prosecutor, the mother said that her belief that the allegations had been made up was no longer held by her. She had changed her mind after speaking to her daughter following the police investigation. She had not been able to speak to her for the first two months because her daughter had been taken out of the home and placed in care.

100. The father of M also gave evidence in the trial. The prosecutor asked him very few questions in chief. The father confirmed that the applicant had been invited to live in the caravan and he confirmed the visits to the property by the complainant R. When asked whether before the police attended the home he knew anything about sexual relations taking place between his daughter and the applicant the father said "I didn't know nothing about it". In cross-examination he agreed that the applicant's conduct had seemed perfectly appropriate. He agreed that he would not have approved of the applicant having sex with his daughter and would not have turned a blind eye to it. He said there was nothing which caused him to be suspicious, and he agreed to the following questions:

"Q. The fact of the matter was that for the whole time he was there, you were perfectly satisfied that in your mind this was like an older brother/sister relationship? --- That's right. Q. Everything he said and did that you saw was consistent with that? --- That's right. Q. This was the situation right up until that time when the police happened to come? --- Yes."

He later agreed to the proposition that since the time the police had attended there was nothing that he had seen or heard which had changed his view that the applicant had not engaged in any sexual impropriety. In re-examination he agreed that he had not spoken to his daughter about the events, at all, nor had he read her police statement, nor had he heard her give evidence in the proceedings. Furthermore, he had not spoken to his wife about the allegations made by their daughter.

105. In his final address to the jury the prosecutor described the case as being a sordid situation made worse by the view that the jury would take of the parents of M. He submitted to the jury that they would take the view that the mother well knew that her daughter was sleeping with the applicant and encouraged it, and that her husband turned a blind eye to the situation. He pointed out that the applicant in his statement to police admitted that he had been in the same bed as M on 24 occasions, seven or eight of those occasions being throughout the evening, and he submitted that the jury would be satisfied that the applicant had been sleeping in M's bedroom right up until the time when the police arrived on 17 June.[3] He asked why, even if the applicant had a heart condition, it would be necessary for M to sleep in the same bed as him. He submitted that a responsible parent would not have allowed that to occur.

108. The prosecutor submitted that the jury would have little doubt that the parents accepted that he was a wealthy man, and was going to obtain further millions when he was 60 years of age. He submitted that that was the context in which these events took place; that was why the applicant was at the property and why he was sleeping with M under the noses of her parents. The prosecutor submitted that the jury could take no other view than that the parents well knew that M was sleeping with the applicant. He said the mother admitted that the applicant and M had moved into M's bedroom in the last week before his arrest but she was not prepared to admit that she knew of their sexual relationship. The prosecutor submitted that given the layout of the house and the living habits of the inhabitants the jury would have no doubt that the mother well knew and understood what was taking place. He submitted that it was hardly surprising that the mother would seek to distance herself ("from this shocking situation") as much as she could. He submitted that the father must also have understood what was going on.

111. The prosecutor said to the jury that the mother gave evidence relevant to other issues, such as the fact that the complainant R was frequently at the house and that she had seen R in bed with both the applicant and her daughter M. Counsel then continued:

"Ladies and gentlemen, I suppose you would ask yourself: If the parents knew, as they - well, certainly (the mother) admits - that their daughter was sleeping in the same bed with this man, is it conceivable that a parent in those circumstances would allow such a thing to happen, and I'm saying, even sleeping in the same bed with him during the night? It's just symptomatic of one thing: That they were after Mr Macfie's money and they were prepared to allow their daughter to sleep with him and have sex with him in order to achieve that particular thing they wanted, that is, to get the money. Now if, as it was said, this all came about because Mr Macfie came to (the mother) and said, "Look, I'm worried about my heart, I've had a few problems. I need somebody to look after me. Can you have (M) come and look after me?' you, as a responsible parent - and what I'm talking about here is applying your sense and logic to the facts to see whether or not you accept them - why couldn't Mr Macfie occupy (M's) bedroom and (M) move to the caravan, or, if you were really extreme, why wouldn't (M) sleep in a separate bed in the caravan? But that indeed, you might think, is pretty unlikely that any responsible parent would allow that particular latter proposition to take place. So, that's what I wanted to say about that topic. Their involvement provides part of the context and circumstances under which these events took place, and their involvement is relevant to a number of other issues that I want to refer you to in due course. But whether or not they were involved is not directly relevant to the elements of each of the offences."

115. Later in the address the prosecutor dealt with the fact that M had made no complaint at the time of the offences. He referred to her evidence that the applicant had told her not to tell her mother. He submitted that the jury might think that M well understood that her mother knew exactly what was going on and realised that there was no point in complaining to her mother in those circumstances. He submitted:

"You might think for a fifteen year old girl in circumstances where she was having sexual relations virtually under her parents' nose, that she thought that they probably knew in any event. After all, it was her mother who said to her, `Go out, and keep an eye on Mr Macfie'. It was her mother that allowed her to be in the caravan with Mr Macfie."

119. Mr Kassimatis conceded that defence counsel probably wanted the parents called by the Crown, and he took full advantage of his right to cross-examine them, by adducing evidence which was favourable to the defence. Mr Kassimatis submitted, however, that had defence counsel been forewarned as to the approach the prosecutor intended to take in his address then he might well have opposed the calling of the parents, at all, by the Crown.

122. Mr Kassimatis submitted that if the prosecutor did not regard the parents as being witnesses of truth, as appeared to have been his belief, then the proper course was not to put them in the witness box. Whether the defence then called them would have been a matter which defence counsel would have had to decide.

125. Alternatively, if the prosecutor did call the witnesses, and did so knowing that he would later make adverse comment about their evidence, then, so Mr Kassimatis submitted, the prosecutor was obliged to put questions which alerted the witnesses as to what he proposed to say as to their evidence, so as to give them a chance to respond. At the very least, if the prosecutor did not do so, then he ought to have alerted the defence to his intended comments so that defence counsel could have put those matters to the witnesses and given them a chance to answer the allegations. As it was, the jury had been denied the opportunity to hear and see the witnesses rebut the suggestion of complicity, Mr Kassimatis submitted. That was unfair to the witnesses and prejudicial to the applicant, he submitted. If the witnesses were to be treated as not being witnesses of truth or if they were to be denied the opportunity to respond to the allegations, then they should not have been called by the prosecutor.

Should the Crown not have called the witnesses?

129. In the joint judgment of Barwick, C.J., McTiernan and Mason, JJ. in Richardson v. The Queen[4], their Honours held that the Crown prosecutor alone carried the responsibility for deciding who would and would not be called to give evidence for the prosecution. Their Honours accepted that there would be many factors which would be taken into account, including whether the witness was essential to the unfolding of the narrative of the Crown case and whether it was in the interests of justice that the witness should be subject to cross-examination by the Crown prosecutor[5]. One other factor was "whether the evidence is credible or truthful"[6]. Their Honours allowed for the possibility that having reached a negative conclusion as to the truthfulness or credibility of the witness, the prosecutor might nonetheless call the witness, and not infrequently prosecutors, without objection, and usually at the request of the defence, take the course of calling a witness merely for cross-examination by the defence, and thereby signalling that the Crown will not contend that the witness was truthful[7].

132. Their Honours said in Richardson that it was for the prosecutor to decide what were the relevant factors in a given case and "determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused"[8]. The decision not to call a witness, they held, could only lead to the setting aside of a verdict if, when viewed against the conduct of the trial as a whole, the decision may be seen to have given rise to a miscarriage of justice[9].

135. In R. v. Goncalves[10]. Wheeler, J., with whom Malcolm, C.J. and Heenan, J. agreed, held:

"It is important to recall that so far as the question of whether the evidence is `credible and truthful' is concerned, it is not enough that the prosecutor merely has a suspicion, or even a belief, about the unreliability of the evidence; there must be `identifiable circumstances which clearly establish' unreliability before such a question relevantly arises: Apostolides [1984] HCA 38; (1984) 154 C.L.R. 563 at 576. In assessing a decision to call a witness as opposed to a decision not to call a witness, it must be borne in mind that the effect of each decision is different. A decision not to call a witness, even where the witness is made available by being subpoenaed, will deprive the accused of the advantage of being able to cross-examine that witness. The ultimate question, as the passage I have quoted from Richardson makes clear, is whether there has been `fairness to the accused'. That is a question which is to be determined having regard to the whole of the conduct of the trial, and in particular to the conduct of the Crown case. As a general rule, however, one can see that it would be much easier to establish unfairness in respect of a failure to call a witness rather than in respect of the calling of a witness."

139. In my view, no error has been shown in the exercise of the prosecutor's discretion to call the parents to give evidence in the case. They had relevant evidence to give on a number of topics, not only in proof of the daughter's age but also the mother gave evidence that her daughter and the applicant had shared a bed. Whilst it is true that the applicant admitted as much in his record of interview, as did the complainant M in her evidence, the evidence of the mother that she approved of that course might well have been taken by the jury as supporting the conclusion that the applicant had engaged in sexual relations with M. The mother's evidence was also relevant to explain the absence of a complaint by M. The father, too, had relevant evidence to give, as to the layout of the property and the conduct of the applicant and his daughters. Given that the parents lived at the property where the offences were said to have occurred, and that the evidence of the young girls, as well as the admissions contained in the record of interview of the applicant, suggested that events highly suggestive of sexual activity must have been occurring under their noses, the unfolding of the narrative necessitated calling the parents, in my view.

Should the witnesses have been given an opportunity to meet the prosecutor's criticisms?

143. Mr Kassimatis relied on a series of decisions in the Court of Criminal Appeal in New South Wales in support of his contention that the trial miscarried because of the failure of the prosecutor to warn the witnesses during their evidence and/or to warn defence counsel prior to calling the witnesses of the criticisms he proposed to make concerning their evidence.

146. In R. v. MRW[11] the Court of Criminal Appeal in New South Wales was concerned with the case where a prosecutor called the daughter of the accused on the trial of her father for indecent assault of the daughter's friend, who was said to have been assaulted in the presence of the daughter. The prosecutor, having called the daughter, did not ask any questions of her, at all, and she was then cross-examined by defence counsel, in the course of which she agreed to a version of events put to her by counsel which was consistent with the assertions of innocence being advanced by her father. In his address to the jury the prosecutor submitted that the daughter was not a witness of truth, and that her version of the events was a cock and bull story made up by the father and supported by the daughter.

149. Greg James, J.[12] concluded, "The prosecutor stood back from allowing the correctness of the contention to be subjected to the acid test of putting it to the witness." His Honour concluded[13], "I consider that this address in the course of conduct regarding this witness was so unfair and the direction so inadequate to deal with that unfairness that, in my view, the trial was fundamentally flawed." His Honour continued[14] referring to R. v. Kneebone[15] that -

"In that decision, I specifically made reference to the responsibility of the Crown prosecutor to ensure that the Crown case is properly presented and presented with fairness to the accused and the Court. I noted that the prosecutor does not perform that duty by seeking to avoid having placed before the Court evidence which he or she is not entitled to regard as unreliable and yet which ill-accords with the theory of the accused's guilt. Similarly, it does not accord with that responsibility of the Crown prosecutor to attack a witness in addresses after simply tendering the witness for cross-examination without affording an opportunity to the witness to deal with the matter of the attack."

153. Greg James, J. concluded that the authorities did not afford "any imprimatur for a Crown prosecutor to disregard evidence not, on proper enquiry, unreliable or to take a course designed to avoid putting an appropriate challenge to adverse evidence when it is elicited."[16]

156. In MRW, as in the other cases to which we were referred, statements were made by the court about unfairness to the witness, but it was the effect of the conduct on the fairness of the trial of the accused which determined the outcome of the appeal in each case. In MRW the critical factor was the prosecutor's suggestion that there was an agreement with the accused for the witness to give false evidence. Greg James, J. held[17]:

"The address powerfully built on the assertion that the jury could find support for the complainant's account in the asserted lies of the appellant and sought to nullify the daughter's account. It followed that the attack on the credibility of the daughter was essential to the line of advocacy employed. That attack was not merely casual but integral to the way in which the crown submitted its case to the jury".

160. Thus, the first distinction between MRW and the present case is that, as Greg James, J. held[18], the prosecutor's address went "well beyond" merely submitting that the evidence of the daughter was incorrect. It amounted to an assertion that she had agreed with her father to commit perjury, and from that fact the father's guilt could be inferred. Greg James, J. held, however, that there was no evidentiary basis for putting that proposition to the jury and for inviting the jury to disregard the evidence that the witness gave, because the assertion that she had reached such an agreement with her father had not been put to the witness.

163. In contrast to MRW, the criticism of the witnesses in the present case was peripheral to the prosecution case and the prosecutor did not rely on the suggested dishonesty of the witnesses as proof of the Crown case. The comments about the witnesses were relevant only to explaining why it might have been that they did not see or admit what the Crown said was occurring under their roof, or proximate thereto, and also why the complainant had not complained to her parents about the conduct of the applicant.

166. The second difference between the approach adopted by the prosecutor in MRW and that in the present case was that, as the judge held in MRW that attack came "after simply tendering the witness for cross-examination without affording the opportunity to the witness to deal with the matter of the attack"[19]. In the present case the prosecutor did not simply leave the witnesses to be cross-examined, but asked relevant questions, including as to their state of knowledge about whether sexual relations had been taking place between their daughter, other girls, and the applicant, and the defence counsel also asked such questions. As I shall discuss, unlike the situation that pertained in New South Wales by virtue of s.38(1) of the Evidence Act 1995 (NSW) there was little more that the prosecutor could do in this State by way of himself confronting the witnesses with the criticisms he later proposed to make.

169. The decision in MRW was followed in R. v. Kennedy[20]. In that case the witness (the partner of the accused, and the mother of the complainant in a rape case), once again, had not been questioned, at all, by the prosecutor who called her, but was later said by him in his address to be protecting the appellant by her evidence. Studdert, J., with whom Heydon, J.A. and Greg James, J. agreed, held that without the witness having been given an opportunity to answer the criticism the prosecutor had "no justification"[21] for making the comment he did in his address. Although, once more, comment was again made about unfairness to the witness, the decision, turned on the question whether the accused had a fair trial. Studdert, J., applying the statements in MRW, held that he had not, because the jury might have been influenced by the prosecutor's address so as to reject the evidence which the witness gave on a number of topics which was favourable to the accused, although there was no basis for the prosecutor to invite its rejection, having failed to put the matter to the witness.

172. In a third case, R. v. Teasdale[22], the prosecutor called ten police officers who were present in an hotel when the accused, a fellow police officer, was said to have thrown a glass at the complainant. The prosecutor led evidence from each witness and in eight cases they simply denied seeing the accused throw a glass. Two other police witnesses were cross examined by the prosecutor after he made application under s.38 for them to be deemed unfavourable witnesses, because they gave positively exculpatory evidence for the accused. In his address the prosecutor strongly criticised the evidence of all witnesses, especially the eight, suggesting that they had deliberately lied on their oaths. Tobias, J.A. (with whom Adams, J. and Smart, A.J.A. agreed), applied Kennedy and MRW and held that the judge ought to have directed the jury that the prosecutor's remarks were "unsubstantiated" and "improper" and they should have been disregarded. They were unsubstantiated remarks because, he held, "there was no proper basis upon which such an assertion could have been made"[23].

175. Once again, it can be seen that the prosecutor's criticism of the witnesses was central to the prosecution case and the jury were being invited to simply reject the sworn evidence of witnesses which was inconsistent with the Crown case as advanced by the prosecutor. Once again, it was said that there was no basis for the jury to disregard the evidence when it had not been challenged while the witnesses were in the witness box.

178. In the present case the prosecutor was not using the suggested false evidence of the witnesses in order to mount an attack on the defence case. He did not suggest that the witnesses were in league with the accused, and were telling lies to support his defence. At its highest the attack on the parents' evidence was that by turning a blind eye to the sexual conduct of their daughter they knew of and encouraged the sexual acts of the accused with their daughter, and possibly with the other girls. Their evidence, on which defence counsel relied - that they had no idea that sexual acts were taking place, nor had they seen any such conduct - could not have positively established that the offences did not occur. These witnesses, therefore, could not have been accused of colluding with the accused, by their evidence, in order to support his defence. It was never suggested by the prosecutor that they had actually witnessed any of the offences taking place.

181. If the jury concluded that the parents did suspect or believe, and even condoned, the sexual behaviour of the accused with their daughter (and others) the jury might well have decided that that made it more likely that the offences had been committed, but in that regard the evidence of the witnesses, of itself, provided sufficient basis for the jury so concluding. It hardly needed any observation from the prosecutor to make the point. He did not seek to prove the Crown case by the indirect route of calling the witnesses liars. If they were giving false evidence as to their suspicion or knowledge it was in their own defence, not the applicant's.

184. In this case the accused had admitted in his record of interview that he had many times shared a bed with the daughter. The parents' evidence, especially the mother's, was to the same effect. The prosecutor's comments may have been hurtful for the witnesses, but it was neither gratuitous nor unjustified, having regard to their own evidence.

187. It is also important to appreciate that in assessing the duties of the prosecutor in each of those cases the Court of Criminal Appeal had regard to the statutory powers available to the prosecutor to make application under s.38(1) of the Evidence Act 1995[24]. As was the case for two witnesses in Teasdale, the prosecutor could have applied for leave to cross-examine the witnesses on the basis that their evidence was unfavourable to the Crown. There is no equivalent provision in Victoria, indeed, by s.34 of the Evidence Act 1958 a party calling a witness may not impeach the credit of the witness, save if the witness is declared hostile. There was no basis for any such application to be made in this case, nor did the prosecutor attempt to do so. I assume that when he called the parent's the prosecutor knew he was likely to make adverse comments about their conduct and their evidence, but he was not entitled to cross-examine them.

190. Mr Kassimatis submitted that the prosecutor ought to have asked each witness a question such as, "If it was to be suggested that you condoned the commission of these offences by your daughter what would you say to that?". Counsel contended that there were two reasons why that ought to have occurred. In the first place it was fair to the witnesses. Secondly, it enabled the jury to assess the evidence of the witnesses by seeing it tested on those topics, and that may have benefited the accused. Conversely, by not allowing the witnesses that opportunity to respond, such of their evidence as was supportive of the accused may have been unfairly tarnished in the eyes of the jury.

193. In the first place, I am not persuaded that a question couched in those terms would be other than a leading question. Nor am I persuaded that it would be a relevant question to be asked by counsel calling the witnesses, in that it would constitute merely an impermissible attack on credit of his own witnesses[25]. However, even assuming that the question if asked would have been relevant and non-leading (or would have withstood objection) and that it would have been fair to the witnesses - by giving them an opportunity to answer the contention - did the failure to ask such a question render the applicant's trial unfair?

196. Although Mr Kassimatis complained that the course adopted by counsel was unfair to the witnesses that question is not relevant to this application. Rather, the issue is whether the course adopted concerning the witnesses caused the trial of the accused to miscarry.[26] It may well be improper advocacy for a prosecutor to deny a witness the right to answer an allegation to be made against his credibility, but (assuming, without deciding, that it would be improper conduct towards the witness) that would not necessarily impinge on the fairness of the trial of the accused. A witness might, for example, have been treated very unfairly but in the end have given evidence which could not have been harmful to the accused.

199. In MRW, Greg James J, referred to the Bar Rules which prohibited a barrister from impugning a witness when there was no basis on the evidence to justify the attack, but that failure does not constitute a trial unfair. In this case the jury were not invited to reject all of the parents' evidence, only portion of it, and the adverse comment about that evidence did not create any unfairness in the trial of the applicant. Unlike MRW and Kennedy the witnesses here were given a chance to state their position as to the question in dispute, namely, their knowledge of sexual impropriety by the applicant. In my view, a direct denial from the parents in response to a direct question as to whether they condoned the offences would have added little. The answers given by the witnesses to the prosecutor already constituted a denial on the part of the parents, and however emphatic that denial might have been when repeated under cross-examination or upon direct questioning on the topic the jury would have been left with the undisputed evidence of the mother than she knew the applicant and her daughter were sharing a bed and had encouraged, not discouraged, that conduct. Even if the prosecutor had put the suggested question to them he would have been bound to accept the denial of the parents. Thus, he could not have cross-examined them on their denials, in any event. Furthermore, even if the jury accepted such denials and accepted that the mother truly had no idea that sexual relations were taking place, although she knew that they were sharing a bed, her statement that she had not seen them engaged in sexual activity, and had not suspected it, would not have rendered the fact of its occurrence any less likely.

202. Mr Kassimatis suggested that another option was available. The prosecutor might have called the witnesses, but asked no questions of them on the topic and made no comment during the address. Had that course been taken I think it inconceivable that the jury would not have addressed the topic of its own accord.

205. In my opinion, the prosecutor was in a situation very similar to that discussed by Heydon, J.A. in R. v. Le[27]. In that case a Crown application was granted by the judge to permit cross-examination under s.38 of the New South Wales Evidence Act 1995. The prosecutor was not confined by the judge, as the Court held he ought to have been, in the range of questions which could be asked in cross-examination, but conducted a general attack on the credit of the witness and accused the witness of giving false evidence by arrangement with the accused. Heydon, J.A. said that although the prosecutor in that case saw a strong possibility that the witness would depart from her statement to police in order to assist the accused there was no certainty that she would lie, and the witness had to be called because she was present at the location of the offences and thus was "essential to the unfolding of the narrative underlying the Crown case". His Honour continued:

"She was not an unreliable witness who had given many versions, all of questionable reliability; or a person whose single version was demonstrably false; or a person whose reliability was doubtful because of some mental disturbance. It was not correct to describe the calling of Amber O'Brien as an improper introduction of a "straw person" simply for the purpose of tainting the accused. The whole history of the matter made it inevitable that she be called. The obligation to call a witness does not create an obligation to embrace and accept whatever that witness says: the very existence of s38 reinforces an obligation to test what is said in the interests of justice. Defence counsel did not protest at the calling of Amber O'Brien by the Crown, no doubt for the very good reason that she afforded him a highly unusual and potentially powerful weapon. Her evidence in chief cannot have surprised him, and he could have made considerable progress towards an acquittal by pointing out to the jury what she might lose by giving her evidence (without any protection under the Evidence Act s128), and that so young and vulnerable a woman had no reason to damage her own interests unless she was telling the truth. For the Crown to have permitted that possible line to remain open in an unqualified way without legitimate testing of her position in a s38 examination would have been damaging to the public interest and the administration of justice. The appellant suggested that if the Crown were to call her it should have done no more than call her, elicit her name, address and occupation, and leave her to be cross-examined by the appellant. Had this been done, she would no doubt have given the evidence in cross-examination which she in fact gave in chief exculpating the appellant, and it might have been very difficult for the Crown to obtain leave to conduct s38 questioning in re-examination: see s38(4). It is hard to see how in any sense justice would have been furthered by the course proposed by the appellant."

209. Notwithstanding the fact that s.38 does not have an equivalent section in the Evidence Act 1958, and that they were not departing from any previous statement, the observations about the role of the prosecutor made by Heydon J.A. are applicable to the situation that pertained here. The prosecutor knew the evidence that the parents would give, given their previous appearances, and knew they would be likely to give some evidence upon which he would found a submission to the jury that their evidence in that respect was false. They had relevant evidence to give, being "essential to the unfolding of the narrative", having been occupants of the house where the events were said to have occurred.

212. Silence on the part of the prosecutor might have unbalanced the trial, given that defence counsel had put as leading questions the propositions he did in reliance on the evidence of the parents. The jury would then have had no assistance from counsel as to what they ought make of that evidence if they found it incredible in some respects.

215. The prosecutor, in my view, merely invited the jury to draw an inference from the evidence, and to reject some of their evidence. His submission did not undermine a fair trial.

218. In Goncalves Wheeler, J. concluded that there is no rule prohibiting a party from submitting that the jury might disbelieve portions of the evidence which were not consistent with the guilt of the accused person.[28] That analysis, with respect, is plainly right and ought to be applied here. Its validity does not depend on the availability to the prosecutor of a provision like s.38 of the New South Wales legislation. It is consistent with R. v. Vollmer[29] in which Southwell and McDonald, JJ. also rejected the proposition that a prosecutor could not criticise the evidence of a witness called by the Crown. As stated by their Honours, the ultimate question is whether there was a miscarriage of justice by reason of the course taken by the prosecutor.

221. Finally I turn to the question whether the applicant was denied a fair trial because the jury did not get to hear the witnesses being cross-examined about their state of knowledge. That was the contention in Goncalves, where it was said that because the Crown called the witness and it could not cross-examine her the jury had not had the advantage of seeing the witness respond to the suggestion that she had been a party to the insurance fraud of the accused. Had they done so the jury might have concluded that the denial of fraud by the accused gained added weight by virtue of the denial of fraud by the witness, so it was said. On the question whether it had been fair to the witness, Wheeler, J. referred to Browne v. Dunn[30]. As his Honour noted, there are two strands to the rule, firstly there is a question of fairness to the witness but the second strand of the principle was "that it is appropriate as a matter of fairness for the tribunal of fact to be able to see the witness's reaction to any imputation of untruthfulness and to hear the witness's explanation in relation to any imputation which may be made."[31]

224. Wheeler, J. concluded that although the Crown had not cross-examined the witness and the defence cross-examination was sympathetic to the witness the witness had nonetheless been asked questions which gave her the opportunity to comment on the allegations of impropriety which were later made against her in the address. For the reasons earlier stated, the witnesses in this case also had the opportunity to deny knowledge of sexual impropriety, and did so. The prosecutor could do no more than he did without asking leading questions, in my view.

227. I do not consider that there was an obligation on the prosecutor to give any earlier notice to the defence of the criticism that was proposed to be made. Although the criticism in the address may well have caused some concern to defence counsel no application was then made for a discharge of the jury. Nor was any application made for a direction to be given to the jury. Defence counsel's address followed that of the prosecutor and there was therefore an opportunity to respond to the assertions.

230. I conclude that the trial was not unfair by reasons of the prosecutor's approach in calling the parents and commenting adversely on their evidence.

The suggested deficiencies in the directions concerning the parents' evidence

234. A further complaint raised under proposed ground 1 relates to the accomplice direction which was given.

237. Before he commenced his address the prosecutor advised the judge, and warned defence counsel, what he was proposing to say concerning the parents. At the conclusion of the prosecutor's address, the judge, in the absence of the jury, said that the prosecutor had invited the jury to regard the parents as unreliable and to reject their evidence, and he said he considered it wise to give an accomplice direction concerning the parents. He also raised the question whether an accomplice direction should be given as to the other young girls who had been named in the case. The prosecutor submitted that the other girls could not possibly be accomplices. Counsel for the accused argued that the complainant M could be an accomplice but after discussion the judge thought the best course was not to give such a direction.

240. The judge directed the jury that in his address the prosecutor had suggested that the mother was in effect a party to the offences, by encouraging a sexual relationship for the purpose of gaining money, and had also suggested that, to a lesser extent, her husband was in the same position. His Honour said that that amounted to an allegation that they were accomplices and he then gave the jury an accomplice direction, warning the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice and invited the jury to look for corroboration. He directed the jury that corroboration could come from the account given by the accused himself in the record of interview.

243. After we reserved in this case the High Court handed down its decision in Jenkins v The Queen[32]. In its joint judgment the Court made it clear that an accomplice direction is not required to be given in all circumstances where a witness falls within the description of an accomplice. The trial judge must determine whether there is an issue which the jury might have to resolve in order to reach a verdict of guilty and as to which issue the accomplice's evidence relates. If acceptance of that evidence could be a step taken by the jury in reasoning to a finding of guilt then an accomplice direction must be given[33]. Where the evidence of the accomplice is not controverted by the defence, however, no accomplice direction will be necessary, because there is no issue to which the direction could relate. In cases where the accomplice gave evidence that was wholly favourable to, and was accepted by the accused, then it would be absurd, the Court held, to give an accomplice direction[34].

246. The High Court recognised, however, that where an accomplice gave some evidence which was disputed by the accused and some which was not the direction would need to be related to the disputed evidence only, that is, to the evidence upon which the jury may convict the accused[35]. That is so because the warning is related to the danger of convicting on the evidence, not acquitting[36]. The Court recognised that the task of the trial judge in deciding whether to give any and what direction could be a difficult one where the evidence is in part only favourable to the accused[37]. The trial judge has a duty to warn the jury of the danger of acting on evidence which is potentially unreliable; the approach to be taken is not inflexible and the trial judge must assess what is required in the circumstances of the case at hand[38]. The fundamental principle is that the trial judge must give the jury proper and sufficient instructions to enable them to decide the real issues in the case[39].

249. In this case some of the evidence of the parents was favourable and some was unfavourable to the applicant. The jury might well have used it adversely to the interests of the applicant in deciding the question whether sexual relations had been taking place between the complainants and the applicant. It was open to the judge to decide, as he did, that an accomplice warning was appropriate, in the interests of the applicant.

252. In the directions that he gave his Honour made it clear that the direction applied only as to the way in which the prosecutor sought to use the parents' evidence, that is, adversely to the applicant. He said the direction applied "in the light of the way in which the prosecution has put its case in so far as (the mother) and (the father) are concerned that you should give that consideration to those two witnesses". Thus, his Honour had, in fact, confined the direction to such of the parents' evidence as supported the Crown case.

255. Even if may have been better for his Honour to have given no direction, I agree with Mr McArdle that in the circumstances no harm could have been done by doing so because the terms of the direction warned the jury of the danger of convicting on the evidence of accomplices, not the danger of acquitting the accused. The direction therefore was favourable to the accused, not unfavourable. Furthermore, in the context of this case an accomplice direction did not carry the kind of adverse implications discussed by the High Court in Jenkins, such as might motivate defence counsel, as a tactical decision, to resist the giving of such a direction[40]. In this case, at no point did defence counsel positively oppose the giving of an accomplice direction.[41]

258. Proposed ground 1 is reasonably arguable and it would be appropriate that leave be given to amend the grounds, but having considered the ground I would not uphold it.

261. I turn then to the remaining additional grounds for which leave to amend was sought. As will emerge, I do not consider that any of the proposed grounds has any substance, and it would be inappropriate to grant leave to add them.

265. Proposed ground 2 contended that the judge failed adequately or at all to direct the jury - so as to avoid a perceptible risk of a miscarriage of justice - concerning the need for corroboration and as to the uncorroborated evidence of the complainants and also as to the effect of delay.

268. In this case the offences were alleged to have occurred between 5 April and 14 June 1996. As earlier noted, the case had been delayed for many reasons. A first trial commenced on 7 June 1999 but aborted, and the trial before Judge Crossley commenced on 16 August 1999. The appeal process following that trial further delayed the case and the re-trial on these counts commenced on 9 December 2002. The delay was unfortunate but the applicant had been given very early notice of the allegations contained in this presentment, because he was interviewed by police on 17 July 1996.

271. Mr Kassimatis submitted that while the circumstances here did not require the judge to direct the jury in terms that it would be dangerous to convict on the uncorroborated evidence of the complainants, it was nonetheless a case where a direction was appropriate, warning the jury about the disadvantages that delay had occasioned the applicant in defending the charges, and emphasising to the jury that the Crown case depended almost entirely on the uncorroborated word of each of the complainants.

274. Notwithstanding the prohibition on jury warnings concerning the evidence of victims of sexual offences, as set out in s.61 (1) of the Crimes Act 1958, the Court retains an overriding power to give such direction or comment as is deemed necessary to avoid a perceptible risk of a miscarriage of justice: see R. v. Miletic[42]; R. v. GTN[43]. In this case the learned judge made a comment to the jury about the difficulties which any person might face in defending allegations which were then five or six years old but did not give a direction nor spell out what disadvantages might have occurred.

277. I am not persuaded that there was any feature of this case which necessitated that a warning be given. Any disadvantages due to delay in preparing a defence were significantly reduced in this case by virtue of the early warning which the applicant received by the conduct of his police interview. The one specific disadvantage to which Mr Kassimatis referred was the absence of a witness, another young girl who had also complained that the applicant had sexual intercourse with her. Evidence was led at the trial of unsuccessful attempts by the police to locate her, but no complaint was made to the judge about any prejudice to the defence caused by her absence, nor was a direction sought concerning her absence.

280. It is true that the case turned on the credibility of the complainants but neither that fact nor the delay between complaints and trial created a forensic disadvantage which necessitated that the judge warn the jury. No request was made by counsel to the judge for a direction, nor was exception taken to the charge in this regard. In my opinion, this was not a case where a direction was required in order to eliminate a perceptible risk of a miscarriage of justice. The proposed ground has no prospects of success and I would refuse leave to substitute it as a ground of appeal.

Proposed grounds 3A and 3B - The benefit of acquittal

284. Evidence was led as to the incident in the caravan from which arose counts 4, 5, 11, 12 and 13. As part of the narrative of those events witnesses referred to a second act of penetration of R's vagina by the penis of the applicant, that occurring after the events constituting count 4 and before those constituting count 5. That act had been the subject of a separate trial on which the applicant had been found not guilty. At the present trial defence counsel conceded to Judge Cullity that the evidence was properly led, accepting that to have omitted it would have created a misleading and incomplete picture of the events alleged by the victims. Defence counsel submitted, however, that the judge ought give a direction to the jury warning them that the applicant had been acquitted of a count concerning that allegation and that the jury had to give the full benefit to him of that acquittal. The prosecutor opposed the giving of a direction, arguing that it was unnecessary, as there was no count on the presentment concerning that matter, and that it would be unfair to the Crown to emphasise the acquittal on that count without mentioning that the applicant had already been convicted on each of the counts that were before the jury, but had won a re-trial after a successful appeal. The judge acceded to the request of defence counsel and gave a direction in the terms sought for the applicant.

287. Mr Kassimatis now asserts, under this proposed ground, that no direction should have been given and that it constituted a miscarriage of justice for it to have been given.

290. The majority in The Queen v. Storey[44] held that evidence which had been the subject of an earlier acquittal could be led on a subsequent trial where it was relevant to the trial and where it was not led for the purpose of diminishing the benefit of the acquittal. As Marks, J. observed in his analysis of Storey in R. v. Calcedo[45], although there were some statements to the contrary in the judgments of the members of the court, the High Court could not be taken to have imposed an obligation that there must, in all cases, be a direction given when such evidence is led in a later trial. The trial judge ought do so when fairness dictated that such a direction be given, but fairness to the accused, whilst a primary concern, was not the exclusive factor: fairness to the Crown was also a relevant consideration in determining whether a direction ought be given. As was the case in Calcedo, the facts in this case concerning the matter on which the applicant was acquitted formed no part of any charge before the jury in the subsequent trial. Thus, as was true in Calcedo, fairness did not dictate that a direction be given on that account.

293. In this case the judge gave the direction which was sought on behalf of the applicant, and did so after extensive discussion with counsel and analysis of the relevant authorities. There was good reason why defence counsel wanted the fact of acquittal to be placed before the jury and he gained that advantage without any adverse comment being made. The judge might well have concluded that a direction was not necessary but he was persuaded otherwise, and in my opinion the applicant suffered no prejudice by virtue of the direction that was given. Mr Kassimatis submitted that the jury might have indulged in speculation about the circumstances of the previous trial out of which the acquittal arose, but I am not persuaded that there was a real risk of that occurring, in the face of the clear directions given by the judge that the jury was not to use his acquittal against the applicant.

296. As an alternative argument, Mr Kassimatis submitted that if a direction was, indeed, appropriate then the terms of the direction given were inadequate. He submitted that the judge ought to have told the jury what evidence must be taken to have been assessed in favour of the applicant by the previous jury when acquitting him. Mr Kassimatis cited The Queen v. Carroll[46] and R. v. Smith[47], cases where the relevant issue was double jeopardy. That was not this situation. Here, the charges faced by the applicant were quite distinct from the single count on which he had been earlier acquitted before Judge Cullity, and there were no common elements between that count and any count in the presentment with which we are now concerned. The only question was whether by virtue of the narrative touching on the alleged conduct which had been the subject of a previous acquittal any prejudice might thereby be suffered by the applicant. Any possible prejudice was removed by the terms of the direction, in my opinion. To have gone further and have attempted to relate the acquittal to specific facts in the previous and present trial would have been confusing and unhelpful and would have created, rather than removed, prejudice to the applicant.

299. This proposed ground also has no prospect of succeeding and in my view leave to add the ground ought be refused.

302. The final proposed ground asserted that virtue of the combination of the matters raised by the other grounds there was a miscarriage of justice. I reject that contention for the reasons stated above.

306. The only ground of appeal relating to sentence complains that the sentence was manifestly excessive. Mr Kassimatis sought leave to amend the grounds by substituting three new grounds. We heard argument on those grounds, without deciding at the outset whether to allow the amendment. I would allow the amendment with respect to proposed grounds 1 and 2.

309. Proposed ground 1 complained about the sentences on counts 3, 5, 9 and 13, all being counts of sexual penetration of a child. It was contended that the sentences failed to give proper weight to principles relevant to re-sentencing after a re-trial and failed to reflect the lesser degree of criminality involved in the offence of sexual penetration compared with rape. Proposed ground 2 complained that the orders for cumulation made by the judge offended relevant principles concerning re-sentencing after a re-trial.

312. On counts 3 and 5 the sentences imposed by Judge Cullity were heavier than those imposed by Judge Crossley on the first trial, but on count 9 the sentence of Judge Cullity was less than that of Judge Crossley, however the jury in the first trial had convicted on the alternative count of rape, not sexual penetration[48]. On count 13 on the presentment before him, an alternative count of sexual penetration, the rape count having a verdict of not guilty, Judge Cullity imposed a four year sentence whereas for the equivalent rape count on his presentment (for which there had been a guilty verdict) Judge Crossley imposed a five year sentence[49].

315. The sentences imposed by Judge Cullity (with those of Judge Crossley in parenthesis for the corresponding findings of guilt), for those four sexual penetration counts, were as follows:

Count 3: Three years (c.f. two years). Count 5: Three and a half years (c.f. two years). Count 9: Four years (c.f. four years for rape). Count 13: Four years (c.f. five years for rape).

319. The maximum term for rape was twenty years' imprisonment[50] and for sexual penetration was ten years.

322. His Honour directed that twenty four months of the sentence imposed on count 3, thirty months of the sentence imposed on count 5, thirty months of the sentence imposed on count 13 and six months of the 12 months sentence imposed on count 16 (for the offence of committing an indecent act) all be served concurrently with each other and with the sentence of four years' imprisonment imposed on count 9 (for sexual penetration).

325. Thus, on the second trial the applicant had been found not guilty of two counts of rape upon which he had been convicted before Judge Crossley, and instead had been convicted on the alternative counts of sexual penetration of a child. In addition, he was found not guilty of two further counts of committing an indecent act on which he had been convicted before Judge Crossley[51].

328. Mr Kassimatis submitted that the reduced number and less serious nature of some of the convictions upon the retrial ought to have been reflected in lesser sentences than on the first trial. Instead, after orders as to cumulation, the total effective sentence of the applicant was one year longer than that imposed after the first trial.

331. On 29 October 1999 the applicant was sentenced by Judge Walsh for a series of sexual offences which occurred after the present offences. For those offences he was sentenced to eight years' imprisonment with a non-parole period of six years. Judge Cullity sentenced the applicant to a total effective sentence of eight years imprisonment for the present offences and ordered that four years be served concurrently with the sentence imposed by Judge Walsh, producing a total of 12 years, and fixed a new non-parole period of four years to be dated from the day of his sentencing, 29 January 2003. By contrast Judge Crossley had ordered that five years, of the eight years total effective sentence which he imposed, be served concurrently with the sentence imposed by Judge Walsh. The result was that Judge Crossley imposed three years cumulation upon the eight year head sentence imposed by Judge Walsh, thus producing a total effective sentence of eleven years. Judge Crossley fixed a non-parole period of eight years, to commence from the date of the sentencing by Judge Walsh, namely 29 October 1999.

334. Judge Cullity was well aware of the principles discussed above. In his reasons he dealt at length with the arguments put to him by counsel on this question. He appreciated that he was sentencing for fewer and, in some instances, less serious offences. He said, however, that having watched the applicant for a month he considered him to be totally devoid of remorse. That factor seems to have persuaded the judge not to impose a lower sentence than did Judge Crossley. Mr McArdle submitted that, as a matter of law, Judge Cullity was entitled to impose the sentences he did in the exercise of his own discretion, but he acknowledged that it was difficult to extract from the sentencing remarks just what it was that led his Honour to impose a greater sentence. Mr McArdle submitted that the explanation may lie in the fact that the applicant on his re-trial told his counsel to make no submissions in mitigation based on his antecedents, thus there was little by way of mitigation put to Judge Cullity, whereas there had been such material before Judge Crossley.

337. Although I have no doubt that his Honour, as he said he did, gave careful and repeated consideration to the submissions made to him in this regard I have concluded that the fact that his sentence exceeded that imposed by Judge Crossley does reflect error in the sentencing process. As Kirby, J. stated in R.H. McL[52], there are sound policy reasons why the court should not encourage the increasing of sentences after successful defence appeals. In my view the fact that there were fewer convictions, and in some cases less serious convictions, after the second trial only adds to the strength of those policy considerations, which are concerned with the undesirability of discouraging meritorious appeals by promoting a fear of increased sentences.

340. Mr Kassimatis did not suggest that a judge could not impose a greater sentence after a re-trial than had been imposed on the first trial. The prima facie rule, however, is that the sentence in the first trial will be taken as the ceiling for sentencing on the second trial but the judge in the second trial must exercise his or her own discretion and where the second judge regards the first sentence as manifestly inadequate or inappropriate then that conclusion ought be acted upon, but it will be rare for a second sentence to exceed the first[53].

343. The third proposed ground of sentence appeal complained that insufficient weight had been given to the delay between the commission of the offences and the applicant being charged and eventually sentenced for the offences.

346. The error, as I find it to be, in imposing a greater sentence than on the first trial is sufficient to re-open the sentencing discretion, in my view, and it is unnecessary to consider proposed ground 3, but the factor of delay is relevant to re-sentencing. His Honour extensively discussed the factor of delay. The offences had been committed in April to June 1996. The applicant had not been charged with these offences until late 1998. A first trial aborted. Then he was convicted before Judge Crossley in August 1999 and sentenced in January 2000. The delay in sentencing was due to the applicant's refusal to submit to psychiatric examination. Judgment on the successful appeal was given in April 2002 and after several abortive attempts to commence the re-trial, and after the trial on the severed count, it was some six years between the time when the applicant had been interviewed for these offences and his sentencing by Judge Cullity. Whilst I would take into account the fact that the applicant did have these offences hanging over his head for some six years the factors which contributed to the delay do not all justify allowance being given in mitigation of sentence and, in all the circumstances, I would accord limited weight to the factor of delay in this case.

349. The applicant was aged 62 years when sentenced by Judge Cullity. The sentencing remarks of Judge Crossley provide some additional information about the applicant's antecedents than had been disclosed to Judge Cullity. There was not much to be called in aid by way of mitigation. He had previous heart surgery, had a good work history in the trucking industry and had no relevant prior convictions before these offences. He declined to co-operate with production of a psychiatric report. On all counts he fell to be sentenced as a serious sexual offender.

352. The applicant displayed no remorse and contested the trial. His prospects of rehabilitation, save to the extent that his age and health will bear upon the question, could not be regarded as more than fair. Save for those matters I am in general agreement with the observations on sentence made by Judge Cullity.

355. I would allow the amendment of grounds 1 and 2 concerning sentence and uphold grounds 1 and 2 and would re-sentence the appellant on counts 3, 5, 9 and 13 as follows:

Count 3: Two years' imprisonment. Count 5: Two years' imprisonment. Count 9: Three years' imprisonment. Count 13: Three years imprisonment.

359. I would confirm the sentences on counts 1, 2, 4, 6, 7, 11 and 15 and confirm the order that all of those sentences be served concurrently one with another and with the sentence on count 9. I would direct that twelve months of each of the sentences imposed on counts 3 and 5, eighteen months of the sentence imposed on count 13 and six months of the sentence imposed on count 16 be served cumulatively upon each other and upon the sentence imposed on count 9, but that otherwise those sentences also be served concurrently with his other sentences.

362. The total effective sentence would be seven years' imprisonment for the present offences and I would direct that five years of the sentence passed by this Court be served concurrently with the sentence currently undergoing. The effect of that declaration would be that two years would be cumulated on the sentence imposed by Judge Walsh on 29 October 1999, making a total effective sentence of 10 years, and in relation to that sentence I would fix a new non-parole period of seven years imprisonment, to commence on 29 October 1999, the date of sentencing by Judge Walsh.

365. I would direct that a declaration that the applicant was sentenced as a serious sexual offender on all counts be entered into the records of the Court.

[1] One of those orders will fix a new single non-parole period pursuant to s.14 of the Sentencing Act 1991 to commence on the date not of the sentence we are setting aside but of the earlier sentence with which part of our sentence will be served concurrently. That is an appropriate departure, in the circumstances of this case, from the practice exemplified by R. v. Denysenko [1999] VSCA 106 at [17] and [21] and Director of Public Prosecutions v. Ibrahimoff [2001] VSCA 46; (2001) 3 V.R. 66 at [6]- [7].

[2] See R. v. John William Macfie [2002] VSCA 51.

[3] No evidence was called by the defence.

[4] [1974] HCA 19; (1974) 131 C.L.R. 116. As to the duties of a prosecutor, see too, Whitehorn v. The Queen [1983] HCA 42; (1983) 152 C.L.R. 657 at 663-664; The Queen v. Apostilides [1984] HCA 38; (1984) 154 C.L.R. 563, at 573-577; Dyers v. The Queen (2002) 210 C.L.R. 285 at 292-293, 298-299; Subramaniam v. The Queen [2004] H.C.A. 51 at [52]- [54].

[10] (1997) 99 A.Crim.R. 193 at 215.

[11] (1999) 113 A.Crim.R. 308, sub nom R. v. Walton [1999] NSWCCA 452..

[15] [1999] NSWCCA 279; (1999) 47 N.S.W.L.R. 450. In that case the prosecutor did not call an eye witness, and offered no valid reason why the evidence of the witness should have been regarded as unreliable, rather than as merely being inconsistent with the Crown case he was advancing.

[20] [2000] NSWCCA 487; (2000) 118 A.Crim.R. 34, at 40-42, [35]-[40].

[22] [2004] NSWCCA 91,

[24] The primary criteria to be considered by the judge are set out in s.192 of the Act. The scope of s.38 is discussed in many cases, including R. v. Fowler [2000] NSWCCA 142 and R. v. Hogan [2001] NSWCCA 292.

[25] See s.34 Evidence Act 1958.

[26] R. v. Vollmer [1996] VicRp 9; [1996] 1 V.R. 95, at 139.

[27] R. v. Le ([2002] NSWCCA 186; 2002) 130 A.Crim.R. 44, at [68].

[32] [2004] HCA 57.

[40] See Jenkins, at [22] and [35]

[41] See, by way of contrast, the discussion in R. v. Minaoui [2004] VSCA 126, at [87]-[109].

[42] [1997] 1 V.R. 593, at 603, 605-606.

[43] [2003] VSCA 38; (2003) 6 V.R. 150, at 152-153, [7]-[9], per Callaway, J.A.

[44] (1978) 140 C.L.R. 361, at 372, 389-390, 397-398,409-410, 413, 424.

[45] [1986] VicRp 51; [1986] V.R. 499, at 505-506, Kaye and Gray, JJ. agreeing.

[46] [2002] HCA 55, at [31], per Gleeson, C.J. and Hayne, J.

[47] [2003] WASCA 57; (2003) 138 A.Crim.R. 403, at [26]-[38], per Templeman, J. (Malcolm, C.J. and Steytler, J. agreeing).

[48] That had been count 13 on the presentment before Judge Crossley.

[49] This rape count had been count 17 on the presentment before Judge Crossley.

[50] On 1 September 1997 the maximum sentence was increased to 25 years, by Act No.48 of 1997.

[51] He had been sentenced to 12 months imprisonment on both counts by Judge Crossley, of which two months on each count was to be served cumulatively.

[52] R.H. McL, at 496 [135], at 498-499 [139]-[143].

[53] R. H. McL. v. The Queen [2000] HCA 46; (2000) 203 C.L.R. 452, at 475-476, [72]; R v. Chen [1993] VicRp 64; [1993] 2 V.R. 139, at 159-160.