R v Mark & Elmazovski [2006] VSCA 251

CRIMINAL LAW - Evidence - Admissibility - Propensity evidence - Evidence of drug-taking and supply of drugs to child victims - Whether likely to cause jury to engage in impermissible reasoning - Whether discreditable conduct part of the res gestae - Crimes Act 1958 s.398A(2).

CRIMINAL LAW - Trial - Role of prosecutor - Defence under Crimes Act 1958 s. 45(4)(a) - Whether prosecutor should have conceded that consent not in issue - Crown witnesses called but not examined by prosecutor - Crown witness criticised in prosecutor's final address - Whether prosecutor's duty discharged - Whether productive of unfairness.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 One weekend in May 2003, Peter Mark had consensual sex with a girl (S). The following weekend, Mark had consensual sex with her friend (T). That same weekend, in the same house, Vener Elmazovski had consensual sex with S.

2 Both girls were 14 years old at the time. Taking part in an act of sexual penetration with a child under 16 is an offence carrying a maximum of 10 years' imprisonment (Crimes Act s.45(2)(c)). Consent is not a defence to this charge unless -

"the accused believed on reasonable grounds that the child was aged 16 years or older" (s.45(4)(a)).

3 Both Mark and Elmazovski relied on this defence, but it was rejected by the County Court jury. Mark was convicted of two counts of sexual penetration involving S and four counts involving T, and Elmazovski was convicted of five counts of sexual penetration involving S. The Judge imposed on Mark a total effective sentence of 20 months, with 12 months suspended for a period of two years. Elmazovski received a total effective sentence of 18 months, with 12 months suspended for a period of two years. In each case, the Judge said that he was suspending part of the sentence imposed -

"to reflect the fact that these offences involved consensual acts and to give you the opportunity to return to the community."

4 Mark seeks leave to appeal against his conviction. Elmazovski seeks leave to appeal against both conviction and sentence. I will deal first with the grounds of appeal argued on behalf of Mark.

Ground 1: His Honour erred in ruling that s.45(4)(a) entitled the prosecution to lead evidence of an absence of consent to sexual penetration to negate the belief of an accused that the victim was aged 16 or older.

Ground 2: The trial miscarried because of the prosecution attempt to lead evidence from the complainants of an absence of consent to sexual penetration.

5 The relevant provisions are as follows:

"45(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

...

(4) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 10 or older and -

(a) the accused believed on reasonable grounds that the child was aged 16 or older; or

(b) the accused was not more than two years older than the child; or

(c) the accused believed on reasonable grounds that he or she was married to the child."

6 The intent of subsection (4) is clear. Consent, without more, is never a defence to a charge of sexual penetration of a child. Consent will be a defence if and only if it is accompanied by one or other of the additional features specified in sub-paragraphs (4)(a)-(c). That is, a defence under s.45(4) will always involve two elements: consent and one of the additional features. This may best be described as a qualified or conditional defence of consent.

7 In the present case, the additional feature relied on was that each applicant believed on reasonable grounds that the relevant complainant was aged 16 or older. This meant that, subject to any concession which the Crown might make, there were two matters in issue, namely, whether the girls consented and whether the defendants had the requisite belief.

8 The Judge heard preliminary argument about where the onus lay in relation to s.45(4)(a). The Crown contended that the defence bore the onus of establishing both consent and the existence of the reasonable belief. Both defence counsel argued the contrary. In a careful ruling, the Judge upheld the defence submission, concluding as follows:

"I propose to direct the jury that if there is an evidentiary basis for a defence of consent the prosecution bears the onus to prove beyond reasonable doubt that the complainants did not consent to the acts of sexual penetration, and the absence of the belief on reasonable grounds by the accused that the complainants were 16 years or older."[1]

9 In this Court, counsel for Mark submitted that absence of consent was not a matter which it was open to the prosecution to prove under s.45. If it were, he argued, charges of rape would have been laid, under s.38. It was argued that his Honour's ruling had put counsel for Mark in a difficult position at the trial, in deciding -

"whether to put to the complainants their prior inconsistent statements to the police that there was no consent. The risk was that from his Honour's ruling that belief on age was not a so-called defence unless there was an evidentiary basis for consent and the jury may take the view that what the complainants told the police was true."[1]

10 In my opinion, this submission must be rejected. His Honour's ruling was entirely correct. It accorded both with principle and with the provisions of s.45(4). Consent was in issue, unless and until conceded. It is irrelevant that an alternative charge of rape is available where sexual penetration takes place without consent. The prosecutor had stated clearly that consent was in issue (although he acknowledged that it would be hard to establish absence of consent).[2]

11 In the event, this was not conducted as a "lack of consent" case. No evidence was led by the prosecutor from either complainant suggesting that she was anything other than a willing participant. Under cross-examination, each complainant confirmed, without equivocation, that she had consented to each act of sexual penetration.[2]

12 Unsurprisingly, counsel for Elmazovski asked the prosecutor at the close of the Crown case to indicate whether he was inviting the jury, in relation to his client, to find that there was absence of consent. He submitted that it would be proper for the Crown to concede that - as the defence had earlier submitted - it was a "one issue case". The only matter in issue was the belief of the defendants concerning the age of the complainants. So much had been made clear in the defence responses filed before the trial began.

13 Regrettably, the prosecutor did not make the concession, arguing instead that consent was "a legal issue", whether or not it was "a forensic issue or a live issue". He said:

"It's a matter for me what I'll say in a sort of forensic sense, I've got no obligation to make any factual concession. The evidence speaks for itself and I have to decide how I'm going to approach it, and that's a matter for me, but as a matter of legal issues, consent is an issue and your Honour has to give directions about it."

14 Equally unsurprisingly, the Judge gave no direction about consent of the kind which would have been required under s.37 if consent had been in issue. In his charge, the Judge made it unambiguously clear to the jury that - as was the fact - consent was not in issue:

"As you know, ... and it has been clear to you from the commencement of the trial, the central issue in this case is an issue of fact. It concerns the state of mind of Peter Mark when he had sex with [S] and when he had sex with [T] and the state of mind of Vener Elmazovski when he had sex with [S]. There is no issue or no question that on those two weekends in May of 2003... that acts of sexual penetration took place. There is now no issue that those sexual acts were consented to by the two girls. The issue in the case is has the prosecution proved beyond reasonable doubt that when those sexual acts took place Peter Mark and Vener Elmazovski did not believe, on reasonable grounds, that [S] was aged 16 or older and that Peter Mark did not believe, on reasonable grounds, that [T] was aged 16 or older."

15 Ground 2 refers to evidence which the prosecutor adduced from T that both she and S were "pretty out of it" on the first night, because of their intake of marijuana and alcohol. (Only S had sex on that occasion). If this evidence was directed at showing absence of consent, it was admissible for the simple reason that consent was said to be in issue.

16 In my opinion, it was quite inappropriate for the prosecutor to have declined to rule out consent as an issue. As defence counsel pointed out at the beginning of the trial, the evidence given by the girls at the committal was unequivocal. They had been willing sexual partners of the applicants. The prosecutor knew what his instructions were and, on those instructions, there was no possibility whatever of the jury being satisfied beyond reasonable doubt that there was a lack of consent. The concession should have been made at the outset. That the concession was not forthcoming even after the conclusion of the evidence - which was again unequivocal - is inexplicable.

17 In the event, nothing turns on the failure to make the concession. The Judge ruled out consent as an issue for the jury. And the evidence about alcohol and drugs was admissible in any event, for reasons set out below.

Ground 3: His Honour erred in ruling that the defence could not cross-examine the police witness, Miroslav Majstorovic, on bias in his investigation.

18 Detective Senior Constable Majstorovic was the informant. He had investigated the allegations made by the complainants and had collated the evidence. Both complainants had made statements to the police in which they said - falsely - that the sexual activity with Mark and Elmazovski had not been consensual. Counsel for Mark sought to cross-examine the informant on his failure to charge them with perjury. He evidently wanted to demonstrate that the failure to do so showed bias on the officer's part. The Judge ruled that the issue was irrelevant.

19 In my opinion, his Honour was entirely correct. The allegation of bias on the part of the informant did not relate to any matter in issue before the jury. It was, of course, of very considerable significance to the jury's assessment of the credit of the complainants that their sworn evidence was materially different from what they had originally told police. But, as his Honour pointed out, both complainants had been cross-examined on those inconsistencies.

Ground 4: His Honour failed properly to direct the jury on the use of prior inconsistent statements.

20 In his charge, the Judge told the jury that judging the credibility of witnesses was their task. He said:

"That is very much an issue in which you are able to bring your combined experience of life and of people, of adults and of young people and of children, to make your own assessment."

21 His Honour reminded the jury that there had been particular criticism of the credit of the two complainants. He explained that each had given evidence in the committal proceeding and that some of the answers at the committal had become evidence in the trial, having been tendered in cross-examination. The Judge explained the use to which those previous answers could be put, as follows:

"... [Y]ou may if you consider it appropriate use the inconsistency between the earlier statement and the present evidence of the witness as being relevant to your assessment of the credit of the witness. In other words you can use it as you consider whether the witness [is] being reliable or truthful in what she is saying to you."

22 Counsel for both applicants took exception to this part of the charge. Counsel for Mark argued that the Judge was obliged to identify the prior inconsistent statements that were relied on. Counsel referred to the following statement of Harper AJA in R v Salih:[2]

"I accept that the credibility of the complainant was an important, although not the key, issue in the trial. In those circumstances it was in my opinion incumbent upon his Honour to identify for the jury each prior inconsistent statement upon which the applicant relied as indicating that the complainant might be an unreliable witness. It was then necessary for the Judge to tell the jury in clear and readily comprehensible language that no previous statement, whether sworn (as in the committal) or unsworn (as in the complainant's statement to the police), constituted evidence unless the complainant, while giving evidence at the trial, adopted it; but they were entitled - although, because it was a matter for them, not bound - to conclude that the inconsistency, if they found it to be so, reflected adversely upon the complainant's credit."[3]

Counsel for Elmazovski made a similar submission.

23 The Judge then gave the jury a further direction, in which he identified "a number of statements which were earlier made, which are said to be inconsistent statements." He said:

"It is a matter for you as to whether you regard them as being inconsistent or not and it is a matter for you as to what weight you give them, having regard to what the central issue in this case is and that is the state of mind or the belief of the two accused men..."[4]

24 The only real complaint now made on behalf of Mark is that the Judge referred to the prior inconsistent statements only as alleged inconsistencies. Counsel abandoned a submission that his Honour should have told the jury that the combination of prior inconsistent statements made the evidence of the complainants unreliable.[5]

25 In my opinion, his Honour's direction was unexceptionable. The recitation of the various inconsistencies identified by the defence served to remind the jury of the basis of the defence attack on the credit of the respective complainants. No more was required. Indeed, it may be doubted whether the jury needed much reminding, given that the inconsistencies had been emphasised in cross-examination. How the inconsistencies were to be regarded was a matter for the jury to decide.

26 There are no hard and fast rules about the directions to be given regarding prior inconsistent statements. What is appropriate depends on the circumstances of the case and, in particular, on the extent to which the alleged inconsistencies bear upon the chain of reasoning towards guilt. In Salih, both the fact and the nature of the alleged sexual penetration, and the presence or absence of consent, were squarely in issue. The alleged inconsistencies bore directly on those questions. In the present case, by contrast, none of the inconsistencies bore directly on the critical question of whether the accused had - or, more accurately, had been proved not to have had - a reasonable belief that the girls were over 16.

Ground 5: His Honour failed properly to direct the jury on how evidence adverse to the credit of the complainants affected their credibility on their statement of their ages.

Ground 6: His Honour failed properly to direct the jury on the conflicts between the evidence of the complainants and the other witnesses about the stated ages of the complainants.

27 On the first weekend, S and T were in the company of their friend M when they met Mark and Elmazovski. According to S, Elmazovski asked them how old they were. She told him to guess their ages. Elmazovski said that T was 17, S was 18 and M was 18. Mark also asked, and was also told to guess. He guessed that T was 17. According to S, their response was as follows:

"No, you're stupid. It's not how old we are. T's 14, I'm 14 and M is 14".

S thought she had said she " was turning 15 or something".

28 T also recalled Elmazovski asking how old they were and that she had told him to guess. Elmazovski pointed to T and said she was 16. He pointed to S and said she looked 17 and that M was 17 also. T told Elmazovski he was wrong and that they were all 14.

"He reacted shocked and said, 'Na, you're not 14'. I said, 'Yes we are'."

On S's evidence, there was only one such exchange, with both Elmazovski and Mark present. On T's version, only Elmazovski was present when the question first came up. Mark subsequently came into the room and also asked how old the girls were. When T told him to guess, he said T was 17 and the other two girls were 18. "And then I said 'No, we're 14'. Mark appeared shocked and said 'Really?' T said 'Yes'."

29 The prosecution then called M. Her account was quite different. She said that when Mark asked S and T how old they were, both S and T "lied about their age". Each said that she was 18. Nobody asked M her age because, she said, Mark already knew (via a third party, B) that she was 14. Mark told M that night that he already knew from B that she was 14.

30 The Crown called three further witnesses (D, E and F), each of whom gave evidence that, on the weekend before their first meeting with Mark and Elmazovski, both S and T had told three boys (one of whom was B) that they were 18. Neither Mark nor Elmazovski was present on this occasion. The third witness recalled that, on this earlier occasion, S and T had been with two or three other girls. When he asked them what their ages were:

"They said that they were 17. Some of them said they were 17 turning 18."

He was unable to be more specific.

31 In his charge, the Judge summarised the respective defence cases as to why the jury could not be satisfied beyond reasonable doubt -

"that each of the men did not believe that when he took part in the acts of sexual penetration with S or T that the girl was aged 16 or older."

His Honour fairly summarised the evidence of M - that both girls lied to the defendants about their age - and of the other three witnesses - that the girls had "put their ages up" the previous weekend. The Judge gave particular emphasis to the defence submissions that M's evidence negated the evidence of the complainants that they had told the men they were 14. The latter evidence was said by counsel for Elmazovski to be "an indispensable link in the chain of reasoning that led to the conclusion that the prosecution sought".

32 His Honour went on to remind the jury that they had been invited by the defence to reject the evidence of the two girls because "on other matters [they] were shown to be untruthful". His Honour here recited significant prior inconsistent statements made by S to the police, and evidence given by T that, according to counsel for Mark, showed that T was a liar.

33 In my opinion, his Honour's charge was, once again, unexceptionable. The jury could have been in no doubt, following the cross-examination, that the reliability of the complainants was squarely challenged. At the same time, as the Judge pointed out to counsel during argument, and as Vincent JA pointed out during argument in this Court, the question for the jury was whether the defendants could reasonably have believed that the girls were over 16. What the girls said - or did not say - to the men about their ages was important, but it was not determinative.

34 The jury might, as his Honour pointed out, have accepted what M said - that the girls had falsely stated that they were 18 - but have taken -

"the view that that's so clearly exaggerated that no reasonable person would accept that as being correct."

Moreover, as the prosecutor had said in his address, the jury knew from M that Mark at least was aware that M was 14. This would have been relevant to their assessment of what a reasonable response would have been to the statement - which M said her companions had made - that they were four years older than she was.

35 The Judge was right to draw attention to the direct conflict between the account given by M and the accounts given by S and T, and to the evidence that the girls had "put their ages up" the previous weekend. Beyond that, no further direction was required. As his Honour rightly said, the question whether there were reasonable grounds for a belief that the girls were 16 years or older was a matter for the jury to determine. Indeed, it was a quintessential jury question, which the jury had to determine (as the Judge told them) -

"on the basis of the evidence that you have heard in this Court, by evaluating the evidence in a reasoned way; by listening to each other and using your combined wisdom and experience."

Ground 7: His Honour should have directed the jury on the possibility of collusion between the complainants

36 One of the exceptions taken by counsel for Mark concerned his Honour's failure to give the jury a direction about collusion. He argued that collusion went "to the heart of the issues" and that there was clear evidence of collusion between the complainants. Before his Honour, and again in this Court, counsel for Mark relied on what has been said about collusion in the context of similar fact evidence. Reference was made to what was said by Callaway JA in R v Best,[6] as follows:

"... [T]here is a direction that the judge should give at trial where collusion is raised as an issue. The jury should be told, with the full authority of the judge's office, that they must be satisfied that there was no collusion before they use disputed similar fact evidence as part of their reasoning."[7]

37 Self-evidently, what his Honour there said was in a quite different context, dealing with the very particular evidentiary issues associated with similar fact evidence. The prosecutor correctly pointed out to the Judge this difference of context. No issue of similar fact evidence arises in the present case. It would, of course, have been open to the Judge to comment on the suggestion of concoction, if it had been appropriate to do so, but in my view there was no error in failing to do so. As Callaway JA pointed out in the same part of his judgment in Best:

"It is entirely consonant with the common law as understood in Australia to leave the reliability of evidence to a jury. They are able, and in some cases better qualified than a judge, to assess the weight of an argument that evidence has been concocted or is the product of unconscious influence."[8]

Ground 8: His Honour failed properly to relate the law to the evidence

38 In my opinion, this ground cannot succeed. The scope, and limits, of the Judge's obligation to relate the law to the evidence were recently reaffirmed by this Court in R v AJS,[9] as follows:

"In any given trial, the scope of the direction on these topics will be defined - and limited - by the trial judge's identification of the matters in issue.

Axiomatically, it is the responsibility of the trial judge in every jury trial:

(a) to decide what are the real issues in the case;

(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;

(d) to explain to the jury how the law applies to the facts of the case; and

(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case."[10]

39 The Judge in the present case amply discharged his obligation in this regard. As I have pointed out, there was only one issue in the trial, namely, whether the defendants reasonably believed that the girls were over 16. The Judge clearly identified that issue for the jury, at several points in the charge. He summarised the evidence relevant to that issue, pointing out those parts of the evidence which were relied on by the Crown and then the parts of the evidence relied on by the defence.

40 Exception was taken by counsel for Elmazovski, who submitted that his Honour -

"should go through and summarise in relation to all of the witnesses the evidence-in-chief and the cross-examination of those witnesses."

"[T]he way this case is being conducted, there has been but one issue... [I]n those circumstances it doesn't seem to me to be at all of assistance to the jury to seek to summarise the evidence in the way ... suggested. In my judgment it has been appropriate to seek to relate the evidence that there has been and as caught up in your respective submissions to the particular issue..."

41 I respectfully endorse everything his Honour said. To relate the relevant evidence - and the respective prosecution and defence cases - to the key issue was likely to be of great assistance to the jury. By contrast, to have summarised all of the evidence of all of the witnesses was likely only to have concealed the critical issue under a welter of irrelevant evidence. For the Judge to have distilled the relevant essence of the evidence, as he did, was exemplary. Sir Leo Cussen's "great guiding rule" was followed to the letter.[11]

Ground 9: A combination of errors caused a miscarriage of justice

42 Subject to one matter, it follows from what I have said that this ground must be rejected.

43 Under this ground, counsel submitted that the Judge wrongly extended time for the commencement of the trial under s.359A. That his Honour had the power to do so is clear from s.359A(2) and (3). Nothing has been advanced to justify appellate intervention in his Honour's exercise of the discretion to extend time.

Ground 10: The verdict is unsafe and unsatisfactory

44 When this ground is raised, the question which the court of criminal appeal must ask itself is -

"whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations."[12]

45 Having reviewed all of the evidence, I consider that it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that each of the applicants was guilty of the offences of which they were convicted. I do not consider that the evidence -

"contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead [to the conclusion] that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted..."[13]

46 There were, of course, the prior inconsistent statements; and there was the flat contradiction by M, the third girl present, of the complainants' evidence that they had told the men they were 14. These matters were placed squarely before the jury for its consideration, though they were not determinative of whether the applicants did, or did not, have a reasonable belief that the girls were over 16.

47 A vital part of the jury's consideration of that question involved observing the complainants giving their evidence. The jurors had to make their own judgment about how old the girls would have appeared to be at the time, taking into account their appearance and behaviour, including their ready participation in the sexual acts and their ready consumption of alcohol and drugs. The ability to make that judgment was an advantage the jury had, and it was of the highest importance given what had to be decided. There is nothing in the material which raises any doubt about the manner in which the jury discharged its duty.

Elmazovski - conviction appeal

Ground 1: The learned Judge improperly admitted propensity evidence

48 Before the trial began, counsel for Elmazovski argued that the prosecution should not be permitted to lead evidence of his client's -

"illicit use of drugs and his complicity in the use of illicit drugs by his co-accused [and] by the two complainants."

Counsel informed the Judge, on the basis of the police statements and the evidence given by the complainants at the committal, that the complainants would give evidence about drug use by both applicants, on both occasions, and about their own drug use on those occasions. Counsel submitted that no evidence should be given of the drug use. Counsel argued that this would constitute propensity evidence, as defined in R v Best[14] -

"because it discloses evidence of other criminal conduct which is not the subject of the charges."

49 Counsel argued that the issue was governed by s.398A of the Crimes Act, the effect of which was that evidence was inadmissible unless its probative value so exceeded its prejudicial nature that it was just in all the circumstances to admit it. Counsel argued that the evidence of drug use had no probative value - given that the issue of consent was, for practical purposes, a dead issue - but it was highly prejudicial.

"[T]o put before the jury evidence that my client is a hard drug user [and] is also supplying a child with hard drugs has the potential to inflame the jury against my client when there is no substantial probative value, speaking realistically."

"In my view it is inextricably bound up with the events that took place, that there was this consumption of alcohol and drugs. I agree with [the prosecutor] that it would give to the jury an artificial picture of what took place on those two occasions when it is acknowledged that acts of sexual penetration occurred, if that part of the context was simply removed from the evidence.

It would... sterilise the description of what took place and deprive it of its real character. In my view, that character is material to the issues in the trial which at the present time appear to be, one, whether the complainants consented to the sexual acts and, two, whether the accused believed that they were 16 or over on reasonable grounds."

51 Noting that all counsel acknowledged the evidence in question to be propensity evidence, his Honour concluded that in all the circumstances it would be just to admit the evidence. Both complainants proceeded to give evidence that:

•

on both occasions, they smoked marijuana together with Mark and Elmazovski, as well as drinking alcohol which Mark had bought for them at their request; and

•

they were supplied with amphetamines, on the first occasion by Mark and on the second occasion by both Mark and Elmazovski.

52 Under cross-examination, S confirmed that she had been smoking marijuana for two years and, before the first weekend, had stolen marijuana from her father with the intention of smoking it. On that occasion, S told Mark that she had some marijuana with her.

53 In his charge to the jury, the Judge made only passing reference to the evidence of drug use. He referred to the Crown's submission that -

"the behaviour of the two girls, drinking, taking drugs, staying out all night, participating in sexual activity, was the obvious behaviour of two immature girls who were out of control and running wild."

Each girl had conceded in cross-examination that she had, indeed, been "running wild". The judge also referred to the defence submission that the way the girls behaved had provided reasonable grounds for a belief that they were 16 or older:

"They appeared to be independent young women able to go where they wished, stay out as long as they wished. They appeared to be financially independent. They appeared to be experienced with alcohol. They knew what they liked to drink and they drank it. They appeared to be experienced with marijuana. S had her own supply, and appeared to be familiar with what to do with it."

54 No propensity warning was given, nor was any exception taken by either defence counsel on this point. Subsequently, however, the prosecutor referred to the pre-trial debate about admissibility and submitted that it might be "prudent" for the Judge to warn the jury about not misusing the evidence about drug use. They should, the prosecutor suggested, be warned not to reason -

"that if they accept that speed was used and provided, that might be regarded by them as discreditable or unlawful conduct, not to reason from that that therefore the accused is more likely to have committed these offences or the sort of person that commit these offences."

55 The matter having been raised by the prosecutor, counsel for Elmazovski then - belatedly - sought such a direction. Counsel for Mark, on the other hand, responded by saying that he did not seek such a direction -

"as it elevates this assertion that there was amphetamine to a status far beyond that which is due to it in the context of this trial. The evidence about the use of amphetamines was something that was hotly contested and was the subject of evidence that contradicted the complainants."

Evidently persuaded by this argument, counsel for Elmazovski thereupon withdrew his request for a propensity warning.

56 His Honour ruled that he would give no such warning:

"My own sense of the dynamic of the whole situation is that it did not have a prominence in the way the evidence came to the jury that would really require that to be said to them. [While] I appreciate it may be a prudent and precautionary step to take, in the context of the way the trial was run it does not seem to me to be necessary. Having heard [counsel for Mark's] concern about elevating the prominence of the use of drugs in the mind of the jury, then I think that really confirms the position that I ought not to direct them about it, and the application of [counsel for Elmazovski] about it being withdrawn."

57 No complaint is now made about the failure to give a direction to the jury. The ground of appeal concerns the ruling that the evidence about drug use was admissible. Counsel for Elmazovski submits that it was highly prejudicial for his client to have been portrayed as someone who, first, used marijuana and amphetamines and, secondly, was complicit in the supply of such drugs to the child complainants. There was already a real danger of prejudice, he argued, from the fact that the case involved Elmazovski, who was 31 at the relevant time, having sex with a 14-year-old girl, regardless of the fact that the sex was consensual.

58 The relevant part of s.398A is subsection (2), which provides:

"Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the Court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence."

59 In my opinion, s.398A(2) had no application. Put simply, this was not "propensity evidence" in the relevant sense. It may be accepted that the evidence of drug use was evidence of discreditable conduct. But, as Callaway JA pointed out in Best,[15] the exclusionary rule embodied in s.398A(2) -

"is not directed to evidence of discreditable conduct per se; it is concerned with the impermissible use which may be made of it. Discreditable conduct will therefore not attract the rule unless it has features which may cause the jury to infer that a person who has been responsible for or involved in those acts is likely by reason of that fact to have committed the offence charged... If the evidence of discreditable conduct lacks this feature the exclusionary rule has no application and the evidence will be admitted subject to the exercise of the general Christie discretion."[16]

60 The evidence of drug use was only "propensity evidence" in this sense if it might cause the jury to infer that the defendants did not have a reasonable belief that the complainants were 16 or over, that being the only live issue. In my view, there was no likelihood of such an impermissible inference being drawn. The two matters were unconnected. The fact that Mark, for example, took drugs himself and provided them to S said nothing about whether he did, or did not, reasonably believe that S was 16 or older.

61 The position would be quite different in a case where a defendant denied the act of penetration, and evidence was sought to be led of other sexual contact he had had with girls of a similar age. Evidence of that kind - in that context - would almost certainly have invited impermissible reasoning, that is, it would have caused the jury to infer that, by reason of that other (uncharged) conduct, the defendant was likely to have committed the offence charged.

62 There is a further reason why s.398A(2) was inapplicable. It is that the discreditable conduct in question formed part of the res gestae. This qualification to the exclusionary rule was also pointed out by Callaway JA in Best,[17] by reference to what was said by McHugh J and Brennan J respectively in Harriman v The Queen.[18] Both the drinking of alcohol and the consumption of drugs formed "inseparable features of a transaction consisting of connected events".[19]

63 To have excluded the drug evidence would, as the Judge said, have been highly artificial, even more so given that the defence raised no objection to the evidence about alcohol, which was being consumed at the same time as the drugs. The drug evidence was necessary to render the narrative complete and comprehensible[20], and to avoid the jury having to decide the case in a vacuum.[21]

Ground 2: The trial miscarried because the prosecutor called, but unjustifiably failed to lead evidence from, D, E and F.

64 As noted earlier, each of D, E and F gave evidence that the complainants had lied about their ages on the weekend immediately preceding the weekend when they first met the applicants. This evidence was elicited from them in cross-examination. The prosecutor did not lead the evidence from them in chief. Counsel for Elmazovski argued that this set up an obvious - and adverse - distinction between these three witnesses, on the one hand, and M on the other, from whom the prosecutor did elicit evidence in chief about the complainants' having falsely stated to the applicants that they were 18.

65 In my opinion, there is no substance in this ground. The relevant evidence was before the jury, and it was not challenged by the prosecutor. The present case stands in striking contrast to the position in R v Armstrong,[22] a case relied on by counsel for Elmazovski. There, the prosecutor rejected a defence request that an eye-witness be interviewed in order that he be called as a Crown witness. The witness was then called by the defence and was cross-examined by the prosecutor, who attacked his credibility because of his friendship with the accused and because of his criminal record. This Court allowed an appeal against conviction, on the ground that the prosecutor had not discharged his responsibility of ensuring that the Crown case was properly presented and that the trial was fair.

66 In the present case, the prosecutor discharged his duty by calling each of the three witnesses in question. I do not consider that his failure to lead evidence from them - as to the statements made by the complainants on the previous weekend - was productive of any unfairness in the trial.

Ground 3: The learned trial Judge failed properly to direct the jury in relation to prior inconsistent statements made by the complainants.

67 For the reasons given earlier,[23] I reject this ground.

Ground 4: The learned prosecutor improperly impeached the credit of his own witness (M) in his final address, alleging bias on her part.

68 In his closing address, the prosecutor invited the jury to resolve the conflict between the complainants and M - as to what the complainants had told the applicants about their age - by concluding that M was biased. The prosecutor did not simply suggest to the jury that M was mistaken in her recollection, but told the jury that they should take her evidence "with a grain of salt". Counsel for M complains about the prosecutor having drawn attention to a contradiction between M's evidence in chief and an answer she gave in cross-examination.

69 As Mr Gamble for the respondent pointed out, however, there is no rule prohibiting a prosecutor from criticising the evidence of a Crown witness. The question is whether the course taken by the prosecutor led to a miscarriage of justice.[24]

70 In the present case, there was a head-on conflict between the evidence of M and the evidence of S and T. The prosecutor was entitled - as were defence counsel - to invite the jury to prefer one version over another and to advance reasons for the suggested preference. There was no miscarriage of justice.

Ground 5: The learned trial Judge failed to adequately relate the law to the evidence.

71 For the reasons given earlier,[25] I reject this ground.

Ground 6: The learned trial Judge failed to give a direction regarding possible collusion by the complainants.

72 For the reasons given earlier,[26] I reject this ground.

Ground 7: A combination of errors caused the trial to miscarry.

73 For the reasons given earlier,[27] I reject this ground.

Ground 8: The verdict was unsafe and unsatisfactory

74 For the reasons given earlier,[28] I reject this ground.

Elmazovski: appeal against sentence

75 The sole ground of Elmazovski's application for leave to appeal against sentence is that there was insufficient differentiation in sentence between himself and Mark. As stated earlier, the total effective sentence for Mark was 20 months (of which he was to serve eight months) and for Elmazovski 18 months (of which he was to serve six).

76 It is submitted that a differential of two months in the head sentences did not adequately reflect the fact that Mark was convicted in relation to two complainants, with whom he had sexual relations over two weekends, or that Mark had

significantly more prior convictions than Elmazovski. Reliance is placed on the decision of the High Court in Lowe v The Queen.[29] As there laid down, however, an appellate court will intervene on the ground of disparity only where the difference between the sentences is manifestly excessive, and is such as to engender "a justifiable sense of grievance".

77 In my opinion, no intervention is called for. The learned Judge was careful to point out that the disparity in Elmazovski's sentence compared with that of Mark -

"reflects your lack of a prior criminal history and the fact that your sexual behaviour occurred with one girl over a period that could be regarded as two episodes."

Other judges might have made the differential greater, but I see no reason to interfere with the Judge's exercise of discretion in this regard.

78 Accordingly, I would dismiss both applications for leave to appeal against conviction and the application by Elmazovski for leave to appeal against sentence.

79 I agree in the disposition of these matters proposed by Maxwell, P. and I do so for the reasons advanced by him in his judgment.

80 I am completely in agreement with Maxwell, P. For the reasons his Honour gives I would dismiss both applications for leave to appeal against conviction and Elmazovski's appeal against sentence.

[1] Submission [6].[]

[]

[2] [2005] VSCA 282.

[3] At [43] (emphasis added).

[4] His Honour went on to identify the issue (incorrectly) as being whether there was consent to the sexual acts. No point is taken in this respect.

[5] cf. Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 536 per Gibbs J.

[6] [1998] 4 VR 603.

[7] At 611 (emphasis added).

[8] Ibid.

[9] [2005] VSCA 288; (2005) 12 VR 563.

[10] At 577 [54]-[55] per Maxwell P, Nettle JA and Redlich AJA, (emphasis added).

[11] See Alford v. Magee [1952] HCA 3; (1952) 85 CLR 437 at 466.

[12] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ (footnotes omitted). See also R. v. Arundell [1998] VSCA 102; [1999] 2 VR 228 at 254 [68] per Callaway, J.A.

[13] M v The Queen (supra) at 494.

[14] Supra.

[15] Supra at 608.

[16] His Honour was here quoting from Cross on Evidence at [21,070] (emphasis added); see also Theos (1996) 89 A Crim R 486 at 491-3 per Tadgell JA.

[17] Supra at 608.

[18] [1989] HCA 50; (1989) 167 CLR 590 at 628-634 per McHugh J; and at 594 per Brennan J.

[19] O'Leary v R [1946] HCA 44; (1946) 73 CLR 566 at 576 per Rich J.

[20] R v Fulcher [1995] 2 Cr App R 251 at 258.

[21] Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at 575 [135] per Heydon JA, citing Wilson [1970] HCA 17; (1970) 123 CLR 334 at 344 per Menzies J.

[22] [1998] 4 VR 533.

[23] See [25]-[26].

[24] R v Vollmer [1996] VicRp 9; [1996] 1 VR 95 at 139 per Southwell and McDonald JJ; R v Macfie (No.2) [2004] VSCA 209; (2004) 11 VR 215 at 230 [60]- [61] per Eames JA (with whom Callaway and Buchanan JJA agreed).

[25] See [38]-[41] above.

[26] See [36]-[37] above.

[27] See [42]-[43] above.

[28] See [44]-[47] above.

[29] [1984] HCA 46; (1984) 154 CLR 606.