R v MG [2004] VSCA 239

Court of Appeal (Vic)|2004-12-17|Before: WARREN, C.J., BATT and EAMES JJ.A

Criminal law - Evidence - Sexual offences - Whether evidence of alcoholism of applicant wrongly admitted - Propensity - Adequacy of direction - Whether conviction unsafe and unsatisfactory - Crimes Act 1958, ss.44(1), 47(1).

The applicant "MG" was presented for trial in the County Court on the charge that between 1 and 30 September 1983 he indecently assaulted the complainant (counts 1 and 2) and that he also took part in an act of sexual penetration with the complainant being a child under ten years (count 3)[1]. He pleaded not guilty. He was convicted and sentenced on the present presentment and a fifth presentment[2] to a total effective sentence of four years and ten months' imprisonment with a minimum period of two years and six months before being eligible for parole. The applicant seeks leave to appeal against conviction.

The complainant, "JH", was the niece of the applicant. She was eight years old and the applicant was 27 years old at the time of the alleged events. The complainant, in her evidence, described that around this time in 1983 she was taken to her grandparents' house regularly, about once or twice a week, sometimes for a visit and sometimes to stay. The applicant and his partner, who later became his wife, were living at his parents', the complainant's grandparents' house at the time. The complainant gave evidence of events that occurred over one night in September 1983. She said she was at her grandparents' home and that the applicant was present. The complainant said that she went upstairs whilst in the house to watch a television programme called "Prisoner" and found the applicant lying on a bed. She said she saw him pull a syringe from his arm and saw a spoon nearby. The complainant said she placed herself close to the applicant by lying down beside him. She said the applicant took her hand and placed it on his penis and masturbated. This constituted count 1.

Then, she stated, the applicant put one hand between her thighs and his other hand tightly over her mouth. The complainant said the applicant penetrated her first with one finger and then more. She said she was crying and suffered pain. This constituted count 2. The complainant gave evidence that the applicant next removed his fingers and forced his penis into her vagina. This constituted count 3. The applicant kept his hand over the face of the complainant. She said she suffered severe pain and felt the weight of the applicant upon her. The applicant next removed his penis and threatened her by saying "Don't tell anyone, or else". The complainant said the applicant then left the room. She said that the events started at the commencement of "Prisoner" and finished at the end of that programme.[3] The complainant said her legs were sore and she could not move. Eventually, she got up but was unable to stand. The complainant said she bled and the blood marked a pillow the applicant had placed under her. The complainant said she hid the stained pillow under the bed. The stain was the size of a bread and butter plate.

The complainant gave evidence of her attempts to conceal her underclothing and the bleeding. She did not see the applicant again that night. She said she had difficulty walking and suffered bleeding and vaginal pain in the days afterwards. The complainant did not tell anyone what had happened and was scared of what the applicant would do if she told anyone. She feared he would repeat his actions. Importantly, there was evidence given by the partner of the applicant.[4] She said that the applicant was not working at the time of September 1983. This evidence was relevant to the alibi of the applicant who said that he was in all likelihood at work at the time of the events alleged. The partner also said that the applicant was possibly upstairs in the grandparents' bedroom at the time of the events described by the complainant.

The sister of the applicant (who was also the complainant's aunt) gave evidence at the trial of the discovery in early 1984 of a pillow stuffed under the grandparents' bed that had what appeared to be a blood stain the size of a bread and butter plate. For various reasons the aunt recognised the pillow as belonging to her mother. She said it was thrown out at the time it was found. After the complainant made her statement to the police, she told her aunt about the pillow. After that conversation the aunt told the police of her recollection of finding the pillow in early 1984.

The applicant was interviewed by the police after the complainant made her complaint in 2001, almost seventeen and half years after the events alleged. In a record of interview the applicant agreed with the interviewing police officer that he was an alcoholic and had suffered that condition since he was 15 or 16. There was objection taken at the trial concerning the evidence of alcoholism. The Crown indicated that it wished to rely upon the evidence of alcoholism with respect to the applicant's incapacity to remember events. The record of interview, including questions as to the applicant's alcoholism, was admitted into evidence at the trial following some deletions.

The applicant gave evidence at the trial. He denied the allegations. It was his case that he was not at his parents' house at the time. He accepted under cross-examination that he may have been at his parents' house at the period of time in question but, as already observed, thought it unlikely because he was working at that time. There were no taxation or employment records relating to the applicant's employment at trial, they having been destroyed earlier in time. A notice of alibi was filed on the basis that the applicant was at work at the time. The applicant was asked questions about his movements and activities around the time of the allegations but he was unable to recall specifically his location or his movements at particular times. The applicant gave evidence that he could not recall going to his parents' home on a weeknight evening and said that in any event he was able to visit his parents during the day and on weekends. He conceded it was possible that he went to his parents' house on a weeknight at the relevant time.

In cross-examination the applicant recalled that he and the complainant were both present at his parents' house but he could not remember being there of an evening. The applicant did not dispute that he may have seen the television programme "Prisoner" at this parents' house but thought it unlikely that he would have gone upstairs to watch the programme in his parents' bedroom. The applicant also said he sometimes watched television in his parents' bedroom, but that he did not remember the complainant coming into that room to watch the programme. He further gave evidence that if his mother was babysitting the complainant at the time, she would not have allowed the complainant to be up after 8.00 pm watching "Prisoner".

The applicant acknowledged the admissions he made as to alcohol in his record of interview. It was put to him during cross-examination and he accepted that he had been an alcoholic in excess of thirty years and that his alcoholism had affected his memory. He said it affected his short term memory but that his long term memory was "not too bad". The applicant also agreed under cross-examination that he had difficulty with his memory generally which was attributable to alcohol. It was specifically put by the prosecutor to the applicant that the complainant's allegations may have occurred and he had forgotten them. The applicant denied the suggestion.

The admission into evidence of the matters concerning alcoholism both in the record of interview and in cross-examination was the subject of objection by counsel for the applicant at trial. The prosecution put the applicant's recollection of events in issue through his alcoholism. The prosecutor put to the jury that the evidence of the alcoholism of the applicant could be relied upon to challenge the accuracy of the memory of the applicant and to conclude that he was lying. In the charge, the trial judge directed the jury that whilst there was evidence of alcoholism of the applicant, the jury should not conclude thereby that he committed the offence as charged. After the charge, an exception was taken by the applicant's counsel to the use of the evidence concerning alcoholism. Ultimately, no redirection was asked for but a discharge of the jury was sought on the basis that the evidence as to alcoholism should not have been admitted, it being prejudicial. The application was refused on the basis that there had been sufficient warning to the jury.

The applicant sought leave to appeal against the conviction on the ground that the evidence as to his alcoholism was wrongfully admitted, that it was prejudicial and that such evidence would cause the jury to conclude that he was the type of person who would commit the offence as charged which led to an unfair trial.

The applicant was not represented at the hearing of the application. He informed the Registrar of the Court of Appeal, by correspondence, that he did not wish to appear or be heard and that he was content to rely upon written submissions that he filed with the Court. The Court noted that the Registrar had spoken to the applicant and, subsequently had written to him, confirming the course elected by the applicant of not appearing. The Registrar also provided to the applicant a copy of the submissions filed on behalf of the respondent on the application. The applicant informed the Registrar that he did not wish to respond or make any further submission. Thus, the application proceeded in the absence of the applicant.

The Court was of the view that the grounds of appeal as set out by the applicant were tantamount to or purported to constitute a ground of appeal of an unsafe and unsatisfactory verdict. Thus, the Court, with the agreement of Mr Silbert who appeared for the Crown, proceeded on the basis that it would amend the grounds of appeal if necessary

I turn to the existing grounds of appeal concerned with the admission of the evidence about the alcoholism of the applicant. The evidence as to alcoholism was sought to be raised by the Crown at trial on the basis that the applicant failed to recall events because of his alcoholism. However, ultimately, the trial was conducted by the prosecution on the basis the applicant was lying (when he denied

the allegations). In my view the change in use of evidence did not matter in this case. The jury received and determined the evidence and were directed by the trial judge not to use the evidence to conclude that the applicant was likely to commit the offence as charged. When considering the whole of the evidence before the jury, including the evidence relating to the blood stained pillow, it was open to the jury to convict the applicant as it did. The jury was appropriately directed by the trial judge on the use of the evidence concerning alcoholism. I also consider that there is difficulty in concluding that the verdict was unsafe and unsatisfactory.

Save for these remarks, I have had the benefit of reading the draft reasons of Eames, J.A. and I agree with those reasons. I would refuse leave to amend and I would dismiss the application.

The facts of this offending, the evidence and course of proceedings below and the terms of the applicant's written submissions to this court appear in the reasons for judgment of Eames, J.A., which I gratefully adopt.

The notice of application for leave to appeal against conviction simply states a three-fold ground of proposed appeal (or, it may be, three closely related grounds) in the following terms (slightly edited):

"1. The learned trial judge erred in ruling that evidence of the appellant's alcoholism was admissible. 2. The admission of evidence of alcoholism prejudiced the applicant in the eyes of the jury. 3. The admission of evidence of alcoholism would cause the jury to consider that the applicant was the type of person to commit the charged offences and thus prejudice a fair trial of the applicant."

In the written case which, being unrepresented, he prepared, the applicant stated that the trial judge had allowed the Crown to lead evidence of his alcoholism purely to demonstrate that he had a poor memory and was therefore likely to have forgotten that the offences occurred. He said that the Crown initially stated that it would not seek to lead aspects of the applicant's former wife's statement relating to alcoholism, but did lead this evidence. Further, by the time of final addresses the Crown made it clear that it did not rely on anything shaky about the applicant's memory due to his alcoholism and was not submitting that he might have or could have committed the alleged crimes and then forgotten about them. The applicant referred to his counsel's having pointed this out to her Honour. He contended in terms of the three-fold ground. He referred to her Honour's refusal to discharge the jury and to the fact that she mentioned his alcoholism and his difficulties with his memory in her charge. (These mentions occurred in her Honour's summary of the applicant's evidence in cross-examination.)

At trial objection had been taken to the questions and answers in the record of interview which referred to the applicant's alcoholism[5] and her Honour ruled that several questions and answers should be excluded by reason of the uncertainty of the offences against which complainant they were referring to. Objection was also taken to anticipated cross-examination of the applicant about his alcoholism in the event that he gave evidence, but her Honour ruled[6] that such cross-examination was admissible as it bore on the question of the reliability of the applicant's memory. Her Honour suggested[7] that she could give the jury the direction which, as mentioned later, she did give very early in her charge that they should not reason that, because the applicant was an alcoholic, he must have committed the offences, and counsel for the applicant asked her to do so.

In my opinion it was open to the Crown to lead evidence, as it did, from the applicant's former wife that, while he was working at a leather company in 1983, there were occasions when he did not go to work, sometimes because of hangovers and on other occasions because he started drinking early. That is so, I consider, even though the witness was emphatic that the applicant was not working at all in September 1983. I say this because the Crown was, in my view, entitled to protect its position in case the jury did not accept the emphatic evidence of the witness that the applicant was not working in September 1983. I am not, however, sure that the bald questions towards the end of the (edited) recorded interview, establishing merely that the applicant had an alcohol problem, were admissible as part of the Crown case. But, assuming that they were not, whether the point be treated as raising the second limb (a wrong decision on the question of law) or the third limb (a miscarriage of justice on any ground[8]) of s.568(1) of the Crimes Act 1958, for the reasons I shall give, there was not any miscarriage of justice, let alone any substantial miscarriage of justice within the meaning of the proviso (which would require consideration if the second limb were satisfied).

First, the applicant's former wife had already given evidence when the record of interview was tendered. Moreover, the applicant in cross-examination, having admitted that he had a long-standing alcoholism problem, was asked whether that affected his memory and said that it affected his short term memory but that his long-term memory was "not too bad". In my opinion, that cross-examination was proper and the answers were admissible. Whilst it may be that expert evidence could have been led as to the effect of alcoholism (if sufficiently described) upon long-term memory[9], I consider that it was within the capacity of the jury, with their wide and diverse experience of the human condition and the course of human affairs, to evaluate that evidence for themselves. In any event, this evidence and its evaluation had receded into the background by the time of final addresses as the Crown went to the jury on the basis that the applicant was not frank, that is, in effect that he was lying, though it would, I consider, have been open to the jury, if it did not accept beyond reasonable doubt the Crown submission, to have found that the applicant's long-term memory was affected adversely by his alcoholism. Whilst her Honour did refer to the cross-examination of the applicant concerning his alcoholism in her summary of the evidence, when dealing with the arguments of counsel she distinctly put to them that the Crown case was, not that the applicant might have or could have committed the crimes and then forgotten about them, but that he prevaricated and was not telling the truth when he denied committing them. In short, then, even if when alcoholism was first raised the evidence was inadmissible, that position was overtaken by later Crown evidence and by cross-examination of the applicant and then, by a further change, it receded in importance.

Secondly, very early in her charge her Honour directed the jury that it would be wrong of them to allow any feeling of disgust or disapproval they might have to the fact that the applicant was an alcoholic to lead them to reason that, because he was an alcoholic, he must have committed the crimes in question. There is nothing to suggest that the jury did not abide by that direction. The direction clearly answers the second and third branches of the ground of appeal.

Thirdly, insofar as her Honour's declining to discharge the jury is complained of, I consider that her Honour was correct in holding that there was not at the time the application was made a high degree of need for a discharge because she had made it quite clear that the jury were not to use evidence of the alcoholism in any improper way and because she would summarise (as indeed she did) the prosecutor's argument to refer to the way in which the Crown case was put. Perhaps more pertinently,[10] the refusal to discharge the jury did not, having regard to her Honour's direction and to the course of proceedings, occasion the risk of a substantial miscarriage of justice in the sense that, by reason of the admission of the evidence of alcoholism, the applicant lost an opportunity of acquittal reasonably open to him.

For the foregoing reasons, I consider that the three-fold ground fails.

The written case of the applicant, who did not attend, contained a second submission. This the court treated as asserting that the verdicts were unsafe and unsatisfactory, that is, that they were unreasonable or could not be supported having regard to the evidence. Since there was no ground of proposed appeal to this effect, the court treated the applicant (as it notified both him and counsel for the respondent before the hearing of the appeal) as applying to amend to add that ground.

The applicant submitted in his written case that the jury's verdict was totally inconsistent with the evidence presented against him. He contended that every witness (apart from a television network general manager speaking as to the duration of the episodes of the television show "Prisoner") was inconsistent in his or her evidence. He further contended that the complainant's evidence of uncharged acts and of his injecting drugs and wearing tracksuit pants on the evening in question was inconsistent with his former wife's evidence. He pointed to the fact that the complainant changed her original statement by saying that the events occurred in September 1983, not September 1982, and that the uncharged acts were only added to her statement at the committal hearing in March 2002. He challenged, too, the complainant's evidence about the blood-stained pillow and stated in addition that it was inconsistent (in a small respect) with her aunt's evidence. He asserted that his former wife had told the informant shortly before trial that he, the applicant, was indeed working at the leather company in September 1983. He concluded by stating that he had read through the transcripts very carefully and was at a loss as to how the jury had accepted that the prosecution had proved beyond reasonable doubt his guilt of each and every one of the three offences beyond reasonable doubt.

The ultimate question for this court when considering the ground now under consideration is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.[11] In answering that question the court must pay full regard to both the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the consideration that the jury has had the benefit of having seen and heard the witnesses.[12] Here, the points now relied on under this proposed ground, whilst not without force, were paradigm questions for the jury. Almost all of them were the subject of one or more of the following, namely, cross-examination, final address by the applicant's then counsel and mention by her Honour.[13] There was no significant discrepancy as to the central evidence. It should be added that, whilst it was a course for the Crown to prove beyond reasonable doubt the commission by the applicant of each offence, the jury were well entitled to discount his denials on the ground of concessions made, and uncertainty displayed, by him in cross-examination. Moreover, whilst one could well understand the jury's not accepting the aunt's evidence about finding the pillow, if it did accept that evidence it constituted strong support for the complainant's evidence. I would answer the ultimate question stated above in the affirmative.

The court followed its usual practice where an applicant is unrepresented or not present and asked counsel for the respondent whether the argument that the verdicts were unsafe and unsatisfactory had any merit. Counsel informed the court that he had read the transcript carefully and was of opinion that no argument in support was available. He drew attention in his written submissions (which were made available to the applicant) to the fact that, after deducting the time the jury returned to court for a re-direction, they took only sixty minutes to reach their verdicts.

For the foregoing reasons, I conclude that, if leave were given to amend the notice of application for leave to include a ground that the verdicts were unsafe and

unsatisfactory or unreasonable and not able to be supported having regard to the evidence, the ground would fail. There is therefore no point in allowing the amendment and I would accordingly refuse it.

I would thus dismiss the application for leave to appeal against conviction.

This is an application for leave to appeal against conviction. The applicant was convicted upon verdicts of a County Court jury on 30 September 2002 on two counts of indecent assault, contrary to s.44(1) of the Crimes Act 1958 (hereafter "the Act"), and one count of taking part in an act of sexual penetration with a child under the age of 10, contrary to s.47(1) of the Act. All the offences were alleged to have occurred in 1983, when the maximum penalty for indecent assault was 5 years' imprisonment and for sexual penetration was 20 years' imprisonment.

The applicant had initially been presented for trial on a presentment alleging 12 counts of sexual offences against three separate child victims, the complainant in the present case being one of those to whom the original presentment referred. Upon applications made to the trial judge separate presentments were filed with respect to each of the two other children and in due course the applicant pleaded guilty on separate presentments alleging offences against the two other children. The applicant does not seek leave to appeal against sentence with respect to any of the sentences imposed on the three presentments. The events relating to the convictions on the other presentments are of no relevance to the present application and since there is no application for leave to appeal against sentence it is unnecessary to make further reference to the other cases.

For completeness, I note that the applicant was sentenced on 6 November 2002 with respect to all presentments. On count 1 of the present presentment, indecent assault, the applicant was sentenced to 18 months' imprisonment and was sentenced to 23 months' imprisonment on the second count of indecent assault. He

was sentenced to 4 years' imprisonment on the count of penetration of a child under 10 years. Two months of each of the indecent assault sentences were cumulated and after some orders as to cumulation were made on one of the other presentments the applicant was sentenced to a total effective sentence of 4 years 10 months' imprisonment and a non-parole period of 2 years 6 months was fixed.

The complainant in the present case, who I shall call "JH", gave evidence that the offences against her occurred a couple of weeks after her 8th birthday, which had been on 20 August 1983. The applicant was born on 25 July 1956 and was aged 27 years at the time of the alleged offences. It was the Crown case that all offences occurred on a single night in or about September 1983. The applicant was not interviewed by police concerning the offences against JH until 25 April 2001 and he then denied the allegations. When she gave her evidence in September 2002 JH was then 27 years of age and the applicant was then 46 years of age.

The complainant JH told the jury that a couple of weeks after her 8th birthday she was at her grandparents' house where she was being babysat. The grandparents' home was in West Heidelberg. The applicant and his future wife[14] had been living with his parents for some months towards the end of 1982, but in early 1983 they moved into separate accommodation, where they resided until November 1984. The applicant, however, would walk from his house to his parents' place at least once a week.

The applicant's parents had seven children, with the applicant being the third child. One of his sisters was Edna, the mother of the complainant and of two other daughters. It was a regular habit that the complainant's mother would leave the complainant and her two sisters at their grandparents' house where they would be babysat. The complainant's mother worked on a Saturday morning and the children would be left Friday night and babysat throughout the Saturday morning also. Babysitting sometimes occurred on Wednesdays, Thursdays and Friday nights rather than just on the Friday evening and Saturday morning.

The complainant said that on the occasion of these offences she and her sisters were at her grandparents' house and also present was her aunt Karen and her uncle David, in addition to their brother, the applicant. The applicant's younger sister Karen was to be an important witness against him in the present trial, and she was herself the complainant in one of the three presentments brought against the applicant. After this trial had concluded the applicant pleaded guilty to one count of indecent assault against Karen, but the fact that he was to stand trial on that offence was not made known to the jury in the present case, no doubt for good tactical reasons.

In the trial with which we are concerned the complainant told the jury that on the night of the offences, at about 8.30 p.m., she "snuck" upstairs to her grandparents' bedroom in order to watch a television program in their room. The program was "Prisoner". The other occupants of the house were, she believed, in the loungeroom downstairs, however, when she arrived at the grandparents' bedroom the applicant was present, sitting on the edge of the bed. She saw him pull a syringe out of his right arm and he quickly put it into a bag near his feet. He had a spoon on his lap. The complainant then got onto the bed where the applicant was lying under the blankets, with the top half of his body bare. She lay down beside him and he took her hand and said he liked his stomach scratched. He placed her hand on his penis. His underwear was pulled down to his hip area, as were his tracksuit pants. He held her hand against his erect penis and started to masturbate, with his hand holding hers on to his penis. This was count 1, indecent assault.

The applicant then rolled on to his side and put his hands between the complainant's legs. He put one hand on her mouth, to stop her making noise, and put the other hand near her vagina, then placed his hand under her underpants, ripping them slightly, and then placed a finger inside her vagina. Initially, it was only one finger but then she said there was more than one finger. She was crying and it was painful. This was count 2, the second count of indecent assault.

The complainant said that the applicant then placed himself between her legs so that he was kneeling and she was on her back. He still had his fingers inside her, then he withdrew his fingers and removed her underwear from one of her legs. He kept his hand on her face and then pushed his penis inside her vagina very forcefully. It was not completely inside her but she remembered a big pain in her stomach. The applicant was moving back and forth and he licked her face. He pulled himself away and then got up. That was count 3. The complainant said that the applicant then threatened her, pointing a finger at her, and said that she was not to tell anybody else.

The complainant said that she remained on the bed, in shock, just lying there. She had no feeling in her legs and could not move straightaway. She took some deep breaths and then sat upright on the bed, and she noticed blood on a pillow which the applicant had placed underneath her bottom when he had penetrated her. The pillow had been under her bottom the whole time he was having sex with her and she noticed the blood was coming from her vagina onto the pillow. She said that the blood on the pillow was in a circular shape and of a size which was slightly larger than a bread and butter plate. She sat on the side of the bed then bent over and shoved the pillow under the bed in order to hide it. She could not recall why it was she hid it. She did not know that she had been raped but she knew that what had happened had been wrong. She could not recall how far under the bed she had shoved the pillow but she recalled that it did not go under the bed easily and she actually had to push it a few times to shove it under. When she was able to move she left the bedroom and went to the upstairs bathroom where she splashed water on her vagina, which was still bleeding. She had not commenced to have periods at this time. She put her underclothes and clothing back on and then went downstairs. There was no toilet upstairs.

The complainant said she did not know what happened to her clothing but her clothes did not have blood on them. When she returned downstairs she went into the loungeroom where she saw her aunt Karen and her grandparents and her own two sisters were also present. The applicant was not there and she did not see him again that night. No one in the room noticed that she was distressed and she believed that she was hiding her distress. She then went to the downstairs toilet and put toilet paper in her underwear. Later, she put on pyjamas. The following day she wrapped her underpants and put them at the bottom of a soiled clothing bin so that no one would see them in the bin. She said it was hard to walk because she had pain in her vagina and she was still bleeding, but not as much as before. She continued to bleed for a couple of days. She said the offences against her commenced at the start of the "Prisoner" program and lasted throughout the whole of the television program.

The complainant gave evidence that prior to this night the applicant, on several occasions, had watched her when she had gone to the toilet at her grandparents' place. He would enter the toilet and close the door behind him and watch her while she was on the toilet. He would also put his hands under her clothing on occasions and feel her chest and her back while she was sitting on the toilet.

The complainant said that in 1983 she would attend her grandparents' house on a regular basis, once or twice a week, but she did not tell her grandparents or anyone else about what had been done to her, because she was scared.

The applicant was represented at trial and the complainant was cross-examined by his then counsel as to inconsistencies in her account. She agreed that in her statement to police, which she made in February 2001, she had said the offences occurred in September 1982 but had changed that at the committal hearing which was conducted in March 2002, to then say that they happened in September 1983. She denied that she had changed the date of the offences in order to accommodate the evidence of her aunt Karen, who gave evidence at the trial that she discovered the bloodstained pillow in about January 1984. It was not until 22 November 2001 that the aunt, Karen, made a statement to police saying that she found a bloodied pillow under her parents' bed. The complainant agreed that she had discussed that account with her aunt prior to trial, in the month that Karen made her statement. After learning from Karen about her discovery of the pillow the complainant had told the informant, who had then interviewed Karen.

The complainant agreed that she had made an application for compensation, but had subsequently withdrawn it. She said she had done that because she did not want people to think that she had made the allegations because she wanted money. The complainant was closely questioned about her failure to make complaints about the conduct of the applicant.

The sister of the applicant (and aunt of the complainant), Karen, gave evidence that she was the younger sister of the applicant and had been living with her parents in the early 1980s prior to moving to her own home in early February 1984. She was 14 when she moved. She said that in late January 1984 she had been asked to clean up underneath her mother and father's bed. There had been a lot of rubbish accumulated there. When she looked under the bed she found a pillow which was bloodstained with a stain which was roughly circular, about the size of a bread and butter plate. She was concerned at what she saw because there was a lot of what appeared to her to be dry blood. The pillow was about midway under the bed and there was not much space between the bottom of the bed and the floor. The pillow had been doubled over and she had to reach under to pull it out from where it was packed. She recognised the pillow straight away as being her mother's because her mother had perforated eardrums and this particular pillow had rolled fibre which put out heat and gave her relief when she was asleep. She took the pillow downstairs to her mother who frowned and shook her head and said, "It's not much good now, you'd better throw it out", which the witness said she did.

In about March or April 2001 the witness, Karen, said she was at her home having a conversation with the complainant. The complainant had made a statement to police on 13 February 2001. They were discussing the complainant's complaint, in the course of which the complainant described what had occurred, and said that the applicant had placed a pillow under her when he raped her, and that it had been stained by blood. The complainant did not say anything to the witness about what had happened to the pillow and nor did the witness say anything to the complainant about the fact that she had found a pillow under the bed. It was only later that the witness came to consider that there may have been significance in the finding of the bloodstained pillow in or about January 1984. She made a statement to police about her recollection about finding the pillow only when she had gone to Court in November 2001. It was only then that she told the police informant about having found the pillow. She made a statement on 22 November 2001. She said that she knew when she found the pillow that her mother had been missing it for some months. It had been a pillow her mother had slept on every night previously. The witness said it was obvious to her that the stains on the pillow were old bloodstains and she had thought that it must have been a blood nose that caused it. When she told the informant about finding the pillow she told him that she found it around about the time the complainant had been raped, but she said that her account in evidence was accurate that she had found it in about January 1984. She said there was a lot of splattering on the pillow, and three drops no bigger than a 10 cent piece. She denied that her evidence about the pillow was made up in order to support the complainant. She said she recalled her mother asking herself and the other children to search for the pillow at or about the time when she had lost it.

The General Manager at Channel 10 Television Network gave evidence that the program "Prisoner" was aired in the week commencing 28 August 1983 on Tuesday and Thursday evenings between 8.30 and 9.30 p.m. The same schedule was followed on the two following weeks. Then in the week commencing 25 September 1983 it was aired only on Thursday between the hours of 8.30 and 10.30 p.m. It had also been shown during 1982 between April and September on Tuesday and Thursday evenings.

The applicant's former wife gave evidence that in or around September 1983 the applicant would visit his parents' house at least once a week. Their own child was born on 25 October 1983 and the applicant was out of work for a period of two or three months prior to September, after leaving Howe Leather. When he had worked with Howe Leather he worked afternoon shift, between 3.00 p.m. and 11.00 p.m., Monday to Friday, but on some occasions he did not go to work, due to hangovers. He started his next job in late October or early November 1983.

In cross-examination, she agreed to some uncertainty about the dates but was emphatic that the applicant was not working in September 1983. She agreed that she had never seen her former husband wear tracksuit pants.

The informant, Detective Senior Constable Davis, gave evidence that when interviewed on 25 April 2001 the applicant denied all allegations but the allegations put to him at that time were that the offence had occurred in 1982. In answer to a question in cross-examination, he agreed that the applicant smelt of alcohol at the time of the interview. He was directed to questions about alcohol consumption in the record of interview and said that the applicant had said that he had been an alcoholic since he was aged 15 or 16. He said the applicant was fit to take part in the interview.

The applicant gave evidence in his own defence. He said that he had been working for Howe Leather from the middle of 1983 until 1984 and was working there in September 1983, on afternoon shift, between 3.00 p.m. and 11.00 p.m. He worked Mondays to Fridays. It was a full time job and he disagreed with his former wife's evidence that he had not been working at that time. He denied the offences.

In cross-examination, he agreed that in his notice of alibi he made no mention of having worked at Howe Leather in September 1983. He agreed, however, that it was possible that he had been at his parents' place on a week night in September 1983, although it was highly improbable, because he was working. He agreed he did have days off, from time to time, when working at Howe Leather. He denied the allegations of sexual assault and denied ever wearing tracksuit pants. He denied injecting himself and said he had never injected himself with drugs. He denied that the complainant had ever got onto the bed with him and denied her allegations of assault. The first he had heard of the allegations was on 25 April 2001 and he was shocked when they were put to him.

The applicant said that if the complainant had been babysat by his parents then she would not have been up at 8.30 p.m. watching Prisoner. His mother would not have allowed the complainant to be up that late. He agreed that on some occasions he did watch television upstairs in his parents' bedroom but there was never anyone else present. He was asked whether he had been in the bedroom with the complainant on an evening in September 1983 and he answered "I don't recall". He was asked "You don't dispute that you may have been?" and he answered "I may have been but I don't think so."

In summarising the evidence of the accused her Honour reminded the jury of his evidence as follows[15]:

"He said he had a good recollection of events generally back in 1983, just at about that time [his child] was born. It was a significant time in our lives. He said he did not know that he would call it a good memory, but he did have memories. He agreed that he had been a heavy drinker for many years and indeed an alcoholic since about the age of 15 or 16. That was the case right up until now and when he was being interviewed by police. He agreed that he had been a heavy drinker for all those years and that had been a continuous thing over a period in excess of 30 years."

Her Honour reminded the jury that the accused had said he could not remember ever being at his parents' house on a week night at this time and that he was working afternoon shift during the month of September 1983. Whilst he did have days off work at times when he was employed he could not recall having a day off during that month.

"He was not saying that he was working every week day in September. He said it was possible that he was at [his parents' place] one week night in September, or more than one week night in September."

Her Honour further reminded the jury of his evidence, as follows:

"He was asked whether he was ever present in that upstairs bedroom at any time, however innocently, with [JH] and he said 'no, I don't recall'. He was asked whether he had been up there in that bedroom with her on an evening in September 1983. He said 'I don't recall'. He was asked 'You don't dispute that you may have been?' and he answered 'I may have been, but I don't think so'. He said that he would not have had any reservations or worries about being in a room with [JH] but he hardly ever saw her because he did not live there. He had very little to do with her even back then, and that was always the case. He was then challenged as to how he just happened to remember the date of her birth and he said 'I know her date of birth ...' "

Her Honour then referred to his evidence as follows:

"It was put to him that he did not dispute that he may have been with [JH] in that upstairs bedroom on an evening in September 1983 and he said 'I can't dispute it'. It was put to him that he could not dispute that if there was such an occasion, that the television program may have been on, and he said that he could not dispute that either. It was put to him that he had difficulties with his memory about events that occurred around September 1983, and he said, 'I remember September of 1983 was a month before my daughter was born. I remember I was working at Howe Leather. That's why I say it was improbable that I'd be upstairs at 8.30 at night in my mother's room watching Prisoner with a needle in my arm'. He said the bit about the needle in the arm was 'not just improbable, it did not occur'. It was again put to him that he did not rule out as a possibility that he was upstairs in the bedroom with his niece [JH] while Prisoner was on TV some week night in September of 1983 and he said 'Well, like I said, I can't dispute it because I don't recall it'. He agreed he'd had a considerable drinking problem for most of his life, but said it was not possible that the things which [JH] alleged that he had done had occurred and he had simply forgotten them."

Her Honour referred also to the evidence of the applicant in saying that the allegations made by the complainant were false but that -

"he did not deny that he may on occasions have been present in the upstairs room when she came up into the room. He said he could not dispute that there may have been occasions when he was present with her on the bed when the television program Prisoner was on because he did not recall that ever happening. He denied each of the allegations that had been made ..."

The applicant's solicitor gave evidence that during the committal proceedings in March 2002 the defence lawyers learned that the complainant had changed the date of the alleged defences to September 1983 from September 1982 and the applicant then instructed his barrister that he had been employed at Howe Leather at that time, working the afternoon shift. He told his solicitor he did not believe that he would have been at his mother's house on a week night in September 1983. The solicitor had made investigations but discovered that Howe Leather's employment records had been destroyed after 10 years.

On the hearing of the application for leave to appeal the applicant was not represented, nor did he appear. He wrote to the Registrar advising that he wished to have his application dealt with on the papers. He provided a written document setting out the grounds and arguments on his appeal. The notice of application for leave to appeal against conviction, dated 18 November 2002, stated the following grounds

"1. The learned trial judge erred in ruling that evidence of appellant's alcoholism was admissible. 2. The admission of evidence of alcoholism prejudiced applicant in the eyes of the jury. 3. The admission of evidence of alcoholism would cause the jury to consider the applicant was the type of person to commit the charged offences and thus prejudice a fair trial of the applicant."

In support of his application the applicant raised a number of arguments which appeared to the Court to raise, in effect, a ground of appeal that the verdicts were unsafe and unsatisfactory. At the direction of the Court the Registrar of the Court of Appeal gave notice to counsel for the respondent, Mr Silbert, that since the applicant's submission appeared to raise the ground of unsafe and unsatisfactory verdicts, which ground was not in the notice of appeal, the Court would proceed on the basis that the applicant was applying for leave to amend his grounds of appeal so as to seek leave to appeal on that ground also. The Court announced that it would consider the merits of the proposed additional ground of appeal without first ruling on whether leave would be granted to add it to the existing grounds of appeal.

An application for leave to appeal may be dealt with on the papers: see s.572 Crimes Act 1958, Rule 2.28.2 of Chapter VI Supreme Court (Criminal Procedure) Rules 1998, and see R. v. Van Doom[16]; R. v. Badenoch[17] R. v. Dransfield[18]. The procedure adopted was that the Court, sat in open court and announced that written submissions had been received from the applicant and from counsel for the Crown, whose written outline had been supplied to the applicant, and counsel was then invited to advance oral argument if required, and did so. After hearing submissions by the prosecutor the Court reserved its decision.

In the circumstances, it is appropriate to set out substantial portions of the applicant's written submission, which was addressed to the Registrar. The applicant referred to pages in the transcript in making his submission as follows[19]:

"My first submission would be, that Judge Hogan allowed the Crown to lead evidence of my alcoholism, purely to demonstrate, that I have a poor memory, and therefore likely to have forgotten that these offences occurred. The Crown initially stated, they would not seek to lead aspects of [his former wife's] statement i.e., alcoholism (page 143, transcripts). Page 453 The Crown led this evidence of alcoholism and poor memory. 518 The Crown now, need to make it clear they do not rely on anything shaky about my memory, me being an alcoholic and all that sort of stuff. It is not there contention that the accused might have, or could have committed these crimes and then forgotten about them. 603 Defense, stated the Crown didn't rely on the alcoholism issue in the way in which it indicated that it may in discussion. I believe Mr Cain, that this evidence prejudiced me in the eyes of the jury and Judge Hogan erred in allowing it to be admitted. The Judge then refused to discharge the jury in her charge to the jury. She again mentioned alcoholism and that I had been a heavy drinker for 30 years on 659 mention of difficulties with my memory on 664 again, mention of drinking problem and memory. My second submission Mr Cain is this. The jury's verdict, was totally inconsistent with the evidence presented against me. Every witness, [JH], [Karen], the informant Campbell Davis all were inconsistent in their evidence. One witness Robert Osmotherly[20] was the exception, [JH's] evidence contradicted itself all through her evidence. Her evidence of uncharged acts were inconsistent, with [his former wife's], [she] stated I worked in the months leading up to Sep 83' [JH] said I was injecting drugs and wearing tracksuit pants. [Former wife] said, that I never used such drugs or wore t/pants. [JH] changed her original statement by saying these events occurred in Sep 83' not Sep 82'. This was after discussions with [Karen], in which [Karen] states she told police about finding the pillow in Jan 84'. [JH] told the court she only spoke to Kylie in March 2002, one week before the committal about her recollection of the pillow (234). Then concedes on page 249 that she spoke with [Karen] in March or April 01' about the pillow. When it was put to her that these allegations didn't happen at all (252) she answered I beg your pardon? She said this again after being asked the same question when it was put to her, that she was saying this for effect, she answered - exactly right. [Karen's] evidence of the pillow was inconsistent with [JH's]. [JH] stated, she sat on the edge of the bed, and shoved the pillow under, placing it there flat - [Karen] stated she found the pillow, half way under the bed, folded. The uncharged acts were only added to [JH's] statement at the committal hearing in March 02'. {Former wife] in her evidence stated I wasn't working in Sep 83'. All through her x-examining she stated this. On page 138 she says she spoke to Det. Davis on the morning of 20-9-02' before trial and admitted that I was indeed working at Howe Leather in Sep 83. All through these transcripts there are similar instances where conflicting evidence like this occurs. It is very difficult for me, to write them all down here, as time will not allow for this. I have to say though, that I have read through these transcripts very carefully and I am at a loss as to how this jury has accepted that the prosecution has proved beyond a reasonable doubt, the guilt, of the accused. That it has proved, each and every element of each and every one of these offences under consideration to their satisfaction. Beyond reasonable grounds doubt! Further Mr Cain, it would be clear to anyone reading these transcripts that this was not a clear cut case in which evidence is irrefutable, yet after a lengthy trial covering 11 days the jury managed to come up with a guilty verdict after only one hour! Anyway, as I don't have more time to add to this I will these submissions as they are. If I were to be granted a retrial I know a different outcome will occur. My mother Mrs [G], who [Karen] states she showed the pillow to, has been in contact with me, and can definitely throw some new light on to this matter. Thank you for your time."

In considering a case conducted in these circumstances a heavy responsibility falls on counsel appearing for the Crown to ensure that all matters which may be relevant to the application made by the prisoner would be drawn to the attention of the Court. The Court sought an assurance from Mr Silbert that he would draw to the attention of the Court any matters which might bear upon the safety or otherwise of the convictions in this case and Mr Silbert, as we would have expected, readily gave that assurance and, with his customary care, assisted the Court by referring us to evidence in the transcript. We are indebted to counsel for his fairness and assistance to the Court. Mr Silbert submitted, however, that the application was without merit.

In the course of her charge her Honour directed the jury, in appropriate terms, as to their approach to the evidence of witnesses. Her Honour added[21]:

"Your task can only be done as an intellectual exercise, putting any feelings of sympathy or prejudice to one side. For example, in this case, there has been evidence that the accused has been an alcoholic for many years. It would be wrong for you to allow any feeling of disgust or disapproval you may have of the fact that he is an alcoholic to lead you to reason that, because he is an alcoholic, he must have committed these crimes."

In the course of her charge the judge gave a Longman[22] direction, which was appropriate given the long delay before complaint was raised and the disadvantages occasioned the applicant in mounting his defence, by virtue of delay. No complaint was or is now made as to the terms of the Longman warning.

Her Honour highlighted to the jury inconsistencies which the counsel for the applicant suggested had emerged in the evidence of the complainant and invited the jury to carefully scrutinise those matters. After giving appropriate warnings concerning delay in complaint and in the bringing of the proceedings, her Honour dealt with the evidence of the finding of the pillow and said that that was capable of being corroborative evidence, but she appropriately warned the jury about the care which was required in considering the evidence. Her Honour highlighted the issues raised by the defence, in casting doubt on the evidence about the finding of the pillow and of it being bloodstained, and she gave appropriate warnings on all other relevant matters, including the use to be made of uncharged acts. Her Honour noted that the applicant had given sworn evidence, and she appropriately directed the jury as to that.

At the conclusion of her charge counsel for the applicant took exception with respect to the question of alcohol. Counsel acknowledged that what her Honour had said to the jury was precisely what she had advised him, before the charge commenced, she was intending to say, and he told her Honour that he was grateful for what she had said. However, he said, upon reflection about the way the matter of alcoholism had been treated by the Crown he had subsequently become concerned. In response, her Honour pointed out that the Crown made it clear that they were not putting the case as being one involving inaccuracy of memory by the applicant but, rather, the Crown case was that he was lying in his denial of the events. Defence counsel suggested that a warning should be given that it was not the Crown's case that the events had occurred but had been forgotten due to alcoholism.

The addresses had been transcribed and her Honour referred counsel[23] to a passage from the address of the prosecutor, which appeared at T518, as follows:

"Now there was quite a deal of chopping and changing by the accused in his evidence and shifting ground, like that, and the Crown, I need to make it clear to you, does not rely on matters indicating anything shaky about his memory, him being an alcoholic and all that sort of stuff. What the Crown says is here is a person, a witness who has not been frank."

The prosecutor, as her Honour read, then continued:

"So it is not the Crown case or contention that this man, the accused, might have or could have committed the crimes and then forgotten about them."

Counsel for the applicant submitted to her Honour that a direction should be given to remind the jury of that approach by the Crown, and that the case has been fought on the basis that the applicant was telling lies in his evidence. Counsel submitted the jury should be told, "There is no half-way house, that he has somehow forgotten with the passage of years or something of that nature."

In response, the prosecutor said that whilst the Crown was not suggesting that he had committed the crimes but forgotten about them -

"The reality is, if the jury thought that that was possible, they could still strictly, aside from your Honour's direction, would be entitled to find him guilty on that basis. Now I haven't suggested they should and indeed they wouldn't embark on that process because of the directions your Honour has already given, which were, I don't say unduly favourable to the accused, but certainly at least as favourable as necessary, if not more so. So there is no need for anything else to be said, it is submitted."

In the course of discussion, her Honour asked why it would not be open to the jury - having heard of his significant history of alcoholism - to conclude, if they so decided, that the applicant may have forgotten the events which had taken place. Counsel submitted that the jury were not entitled to adopt that approach because the applicant's evidence was that there was nothing wrong with his long term memory and the Crown had fought the case on the basis that he was lying, not being forgetful. Counsel submitted, for the first time, that it would be a matter requiring expert evidence as to whether alcoholism affects long term memory.

Her Honour made a ruling[24] that she would not discharge the jury as had been sought and ruled that she believed she had made it quite clear to the jury that they were not to use the evidence of the alcoholism "in any improper way and I propose in summarising counsel's argument to refer to the way in which the Crown case is put."

That ruling having been given, counsel for the applicant then said he did not want a redirection[25]. Her Honour said that all she would say, then, would be to remind the jury of the onus of proof, and counsel said he was content with that. Her Honour then continued with her charge.

Mr Silbert submitted, correctly, that the language which her Honour used in the charge concerning alcoholism had been a formula actually agreed between prosecution and defence counsel.[26] He submitted that the Crown did not lead any evidence of unreliability of the applicant's evidence but that it was open to the jury to make use of the evidence of the applicant's alcoholism if they chose to do so. This was not a matter of prejudicial evidence, by way of propensity evidence, but merely one aspect of the jury's task in assessing the credibility of the accounts of any witness, including the accused.

As to those submissions, I note that during his evidence the applicant had been cross-examined about his statement in the record of interview that he had had been an alcoholic since he was aged 15 or 16, and had been a heavy drinker for all of the following years. He was asked if that had a bad effect on his memory of events and he answered, "On my short-term memory, yes. Long term is not too bad"[27]. Under further questioning he was asked if his memory of some parts of his life was a bit hazy and he said "Oh yes, yes", and he then agreed that he attributed that to what the prosecutor called his "considerable drinking problem for most of (his) life"[28]. Although he then denied the suggestion that he might have simply forgotten committing the offences with which he was charged, the issue of his lack of memory was in issue in the trial, although the prosecutor primarily put the Crown case on the basis that his denials of the offences were lies.

As to the contention that the verdict was unsafe and unsatisfactory, Mr Silbert submitted that the verdict was not unsafe and it was open to the jury to be satisfied of the guilt of the applicant. He cited M. v. The Queen [29], and Jones v. The Queen[30].

In this case the unsafety of the verdicts was not claimed to arise by virtue of the reference to the alcoholism of the applicant, but since that might be thought to also be a discrete basis upon which the verdicts were unsafe and unsatisfactory I will consider the alcoholism issue under that ground too, in addition to the existing grounds.

The applicant contends that the jury may have concluded that, as an alcoholic, he was a person who had a propensity to commit crimes such as those alleged on this presentment. Evidence that discloses a propensity to commit crimes of the kind charged is excluded not because it has no probative value, but because the jury might engage in impermissible reasoning that, if the accused person engaged in the specified conduct, whether it be a criminal offence or conduct of a reprehensible kind, he is the kind of person likely to have committed the offence which is the subject of the count under consideration[31]. If evidence does have the capacity to excite such reasoning then the judge would be obliged to give the jury a propensity direction. It has been held that a propensity direction is particularly important where the other evidence might tend to suggest that the accused had a paedophilic propensity: see R. v. T[32] Southwell, A.J.A., with whom Callaway, J.A. and Smith, AJ.A. agreed, held that if a propensity direction was required the appropriate direction would be one in terms approved by the Court in R. v. Vonarx[33], which (in that instance, dealing with the evidence of uncharged acts) directed the jury not to reason that that evidence "showed the accused to be the kind of man likely to commit the offences alleged".

I am not persuaded that evidence that a man is an alcoholic would be reasonably capable of giving rise to propensity reasoning that, as such, he was the kind of man likely to commit sexual offences against a child. On the other hand, a jury might well think that a man who was drunk was more likely to commit serious sexual offences against an eight year old child than a man who was not, but that is not impermissible propensity reasoning, but merely - if the jury were to so reason - an instance of the jury applying its own experience of the world to its decision-making task. In my opinion, the possible effect of alcohol upon the memory of the applicant - if the jury considered that question at all - was not a matter which had to be the subject of expert evidence. In my view, that was a topic on which the jury were entitled to apply their own common sense, drawing upon life experience, it being a question concerning the "aberrations of human behaviour caused by the intake of alcohol": see R. v. Haidley & Alford[34], and see, too, R. v. Darrington & McGauley[35]; Whether expert evidence might have also been permitted on the topic, had it been called, is not a question which I need to consider.

No propensity direction was sought by counsel in terms which, by the grounds of appeal, it is now suggested were required. There seems no doubt that counsel considered the question and made a forensic decision not to seek such a direction. There would have been very good reasons not to have such a direction given to the jury, where the defence was a total denial of the offences and the assertion that the allegations were fabrications. The failure to take objection is one factor which the Court may take into account in evaluating whether the suggested deficiency in the judge's charge constituted a miscarriage of justice; the failure of counsel to take exception being an important indicator that in the atmosphere of the trial counsel had not perceived there to be any injustice or error in the course taken by the trial judge: See R. v. Clarke & Johnston[36]; R. v. Osland[37], R. v. Wright[38]. I am not persuaded that in the context of the trial there was a real risk that the jury might have engaged in impermissible propensity reasoning concerning alcoholism such as to have required any direction, at all, from the judge about propensity reasoning.

However, if it be the case that a propensity direction was required, then in my opinion, the direction given in this case concerning alcoholism was adequate in the circumstances to meet that objective, so as to avoid a miscarriage of justice. There is no magic formula of words for a propensity direction[39] and the direction given must be tailored to the needs of the particular case[40].

The question whether a verdict is unsafe and unsatisfactory on broader grounds may also be regarded as having been raised by the applicant. The question for the Court whether a verdict is unsafe and unsatisfactory is to be determined by considering whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty[41]. The court may set aside a verdict as unsafe and unsatisfactory even if there be some evidence which might have sustained a conviction, if the court concludes that the jury ought to have entertained a reasonable doubt [42], but before so concluding the court has to consider whether its own doubt would be capable of being resolved by the jury by virtue of the advantage it had of seeing and hearing the witnesses and assessing their credibility[43].

There were factors in the case which merited particular scrutiny. The very long delay in the making of complaint, the age of the complainant at the time of the alleged offences, her age when giving evidence, the fact that announcement of the corroborating evidence of the stained pillow was so long delayed, the denial of the applicant that he had ever been an intravenous drug user (and the absence of any evidence to the contrary), the initial dating of the event a year earlier than finally settled on by the complainant, and the apparent inconsistencies in some of her evidence, are all matters which justify careful scrutiny. All of those factors were, however, the subject of close attention at trial by defence counsel.

Two contentions raised by the applicant required particular analysis. One was that his ex-wife gave evidence that he "never used such drugs". An examination of the evidence of the witness shows that her evidence was less clear-cut. The witness was re-examined about her evidence concerning the applicant's drug use and confirmed that she had told the police that he she had suspected that he was using heroin, in addition to his substantial use of marijuana, but that she could not confirm that. She had questioned him on occasions when he wanted to visit her and the child, as she insisted that he could not see the child if he had been drinking. She spoke of occasions when he denied being affected by alcohol or marijuana but was clearly affected by something. Under further cross-examination she said that when she challenged him about using heroin he had said "there's no track marks on my arms" but then added that "you can shoot it between your toes and no-one ever sees it". She said this discussion occurred in the late nineties, and agreed she had never seen heroin track marks on him.

The applicant also contended, in his written submissions, that his wife had told the informant on 20 September 2002 that the applicant had been working with Howe Leather in September 1983. The applicant's wife gave evidence in this trial on 20 September 2002. She said in cross-examination that it was only that morning that she had been asked, for the first time, by the informant about whether her husband had been working in September 1983, and she was specifically asked about his employment history with Howe Leather. She agreed that she had said that he was working with that firm in 1983 for two or three months, but could not give the exact months. In re-examination, she then said that her belief that he was not working in September 1983 was based on her memory of her anxiety about him being out of work in the period leading to the due birth date of their first child.

The evidence concerning the finding of the pillow, and the failure of the applicant's sister to have told anyone about it until so many years later, was plainly critical to the case. The defence were, no doubt, in a difficult dilemma in attacking the evidence of his sister, because she had, herself, also made allegations against the applicant, but his trial concerning her allegations had not been conducted. The witness was, however, strongly pressed, as was the complainant, about their evidence on this topic. It was, plainly, a matter requiring the assessment of the credibility of the witnesses. Reading the transcript can not place the appeal court in the same position as the jury.

The jury must have been concerned about this issue, given its prominence in addresses, but they deliberated for less than an hour before returning their verdicts[44], thus suggesting that they formed a strong view about the respective credibility of the applicant, the complainant, and the sister. The applicant contends that the quickness of the returning of verdicts reflects that the jury failed to properly assess the evidence in the case, but that is no reasonable basis on which that conclusion could be reached. The issues were plainly in the province of the jury to evaluate. In my opinion, the advantage the jury had in seeing the witnesses was of particular importance in this case. I do not consider it to be a case where there was any feature on the evidence which would cause me to override the verdicts of the jury. I am not satisfied that the verdicts have been shown to be unsafe and unsatisfactory on any basis.

In my opinion, the application to amend the grounds of appeal ought to be refused and the application for leave to appeal against conviction ought to be dismissed.

[1] Following preliminary argument at the trial, the original presentment, number PO1939741 relating to a number of complainants, including the complainant in the application, was withdrawn and four fresh presentments were filed. The first of those presentments, number PO1939741.1 preferred four counts of indecent assault on a girl under 16 being one of the other complainants. The applicant pleaded guilty to each of the counts on the first presentment. The second presentment relating to two complainants, including the complainant in the present application and involving six counts was severed into two presentments, of which one proceeded at trial and was the subject of the present application. Ultimately the fourth presentment was replaced by a fifth, numbered PO1939741.5, containing one count, to which the applicant pleaded guilty.

[3] There was independent evidence at the trial that the television programme around that time ran, sometimes for one, and sometimes for two hours.

[4] At September 1983 the applicant and the witness were living together. They later married in 1984. At the time of the trial they were no longer married.

[8] Compare Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427.

[9] Compare R. v. Darrington and McGauley [1980] VicRp 36; [1980] V.R. 353 at 362-3, 380-3, and R. v. Haidley and Alford [1984] VicRp 18; [1984] V.R. 229 at 233-4, cited by Eames, J.A.

[10] Maric v. The Queen (1978) 52 A.L.J.R. 631 at 635 and Crofts at 441.

[11] M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 492-3; Jones v. The Queen (1997) 191 C.L.R. 439 at 450-451; and MFA v. The Queen [2002] HCA 53; (2002) 213 C.L.R. 606.

[12] M v. The Queen at 493; Jones v. The Queen at 451.

[13] The exceptions appear to be the contentions that the informant was inconsistent in his evidence and that the complainant's evidence of the uncharged acts was inconsistent with that of the applicant's former wife and the assertion that the latter told the informant that the applicant was working at the leather company in September 1983. I cannot discern a basis in fact for the two contentions and the transcript reference given for the assertion (T138) does not bear it out.

[18] Unreported, Court of Appeal, 12 September 1997 (Ormiston, Phillips and Batt, JJ,A.)

[19] I have retained anonymity of witnesses, and have not corrected errors in grammar or spelling.

[20] He was the witness from Channel 10.

[22] Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79.

[31] R. v. T.J.B. [1998] 4 V.R. 621, at 633

[32] R. v. T (1996) 86 A.Crim.R 293, at 299-300

[33] [1999] 3 V.R. 618, at 624-625 [20]-[22], Winneke, P., Callaway, J.A. and Southwell, A.J.A.

[35] [1980] VicRp 36; [1980] V.R. 353, at 362-3, 380-383.

[38] [1999] VSCA 145; [1999] 3 V.R. 355, at 360-361 [16]-[21].

[39] See R. v. Macfie [2002] VSCA 51, at [6]-[7], per Callaway, J.A.

[40] Carr v. The Queen [1988] HCA 47; (1988) 165 C.L.R. 314, at 319.

[41] M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 493

[42] Chidiac v. The Queen [1991] HCA 4; (1991) 171 C.L.R. 432

[43] Knight v. The Queen [1992] HCA 56; (1992) 175 C.L.R. 495, at 503

[44] The transcript shows that the jury first retired at 3.58pm on 30 September 2002 but returned at 4.09pm for further direction, then retired again at 4.11pm. They returned their verdict at 5 pm, exactly.

At a glance

Court

Decision date

Before

Source

Judgment (140 paragraphs)

Parties