R v Morrow [2009] VSCA 291

1 I have had the advantage of reading in draft the reasons for judgment of Redlich JA and agree with his Honour that the convictions should be quashed and a new trial ordered.

2 I wish only to add the following to what his Honour has said in his reasons concerning the application of the Rule in Browne v Dunn.[1]

3 In this case defence counsel failed to comply with the rule by omitting to put to the complainant in cross-examination the substance of evidence which the applicant later gave as to the timing and circumstances of the episodes of sexual intercourse which he admitted that he had with the complainant. It followed, as Redlich JA observes, that it was open to the trial judge to direct the jury that they could take the lack of puttage into account in assessing the weight to be attached to the applicant's evidence on those matters.

4 So to say, however, does not mean that it is generally appropriate for a trial judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the accused. In recent times there have been a number of appeals in this court in which it has appeared that trial judges regard the making of adverse comments as necessary or desirable whenever there is a failure by defence counsel to comply with the rule. Such an approach is misplaced. As the decision of the High Court in MWJ v The Queen [2] makes clear, the rule in Browne v Dunn does not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings[3] and, consequently, its application requires considerable care and circumspection.

5 In R v Foley[4] the Queensland Court of Appeal observed that:

There are of course ways and means of avoiding the necessity of presenting such issues to juries at the end of the trial. Sometimes it is possible to have a witness or witnesses recalled for cross-examination. ... Sometimes the reason for the omission is itself explored at trial, and if it can be seen that the omission reflects only on counsel (or solicitor) and not the accused, then the only available comment would relate to the potential disadvantage to the witnesses or to the Crown's case from the omission, with an express statement that this was not the fault of the accused but rather of counsel.[5]

6 With respect, I entirely agree. In view of what has fallen from the High Court in MWJ, I suggest that any criminal trial judge who is faced with a breach of the rule in Browne v Dunn would be well advised to treat the above stated observations in R v Foley as his or her starting point, and indeed as the approach beyond which it will seldom be desirable to go.

7 If that approach had been adopted in this case, it might well have been possible to avoid the need for a re-trial.

8 In April 2008, the applicant was presented for trial at the County Court in Melbourne on 11 counts of sexual penetration of a child under his care or supervision. The complainant was a student at a girls high school in Melbourne and the applicant was one of her teachers. The applicant pleaded not guilty on all counts. He was convicted on 9 counts and acquitted of two. A total effective sentence of six years' imprisonment was imposed with a non-parole period of four years. He seeks leave to appeal against his conviction and sentence.

9 The Crown case was that the offences occurred during the complainant's VCE studies. The applicant was her physics teacher. In 1998, the complainant, then in

Year 11, would ask for assistance with her studies from the applicant. On occasions, the applicant would drive the complainant home from school. A personal relationship began to develop and both kissed for the first time in 1998, some time around the Year 11 formal.

10 In 1999 the complainant commenced Year 12. The applicant continued to drive her home from school on occasions. In May of that year, the applicant drove the complainant to a car park at the Fairfield Boathouse. The applicant and the complainant had intercourse in the backseat of the car (Count 1).

11 After school, about two times a week, the applicant would drive the complainant to either the area near the Fairfield boathouse or St Kilda beach. The complainant said that the intercourse would occur in the back seat of the car and that typically, prior to intercourse she would give oral sex to the applicant (Counts 2 and 3).

12 Counts 4 and 5 concerned on an encounter at a Hotel in Northcote. (The applicant was acquitted of count 5). Counts 6 and 7 were said to concern 'occasions' where the complainant was driven after school to either St Kilda or Fairfield. In relation to both sets of counts, oral penetration was said to precede penile penetration by the applicant.

13 Neither the applicant nor the complainant used contraception. The complainant fell pregnant. The applicant testified that the applicant was the father of the unborn child. On 30 September 1999 she attended the East Melbourne fertility clinic and terminated the pregnancy. The complainant said the applicant attended with her and paid in cash for the termination. On a day or two before the termination, the complainant said she and the applicant visited a Hotel around the Springvale Road area (Counts 8 and 9). (The applicant was acquitted of Count 8 - oral penetration).

14 From this time the applicant and the complainant continued to have intercourse, but the complainant was trying to 'back down' from the relationship. The complainant gave evidence about an occasion in the middle of October 1999, where the applicant drove her to a service lane and they had intercourse there (Counts 10 and 11). The applicant said the last time they had intercourse was in December 1999.

15 On 10 August 2006, at the instigation of police, the complainant telephoned the applicant and the conversation between them was recorded. This conversation contained no clear admissions, although the applicant seemed to acknowledge a sexual relationship of some kind with the complainant. In his record of interview, the applicant denied having a sexual relationship with the complainant and denied seeing her after she finished Year 12. The applicant was later presented with the fact and substance of the taped conversation. The applicant gave evidence at trial. He said that there was one occasion on which he had intercourse with the complainant. That was in January 2000, after she had finished her studies in Year 12. The complainant denied any contact with the applicant during the year after she completed Year 12.

16 For the reasons that follow, I would grant leave to appeal against the convictions and allow the appeal. The applicant's trial was affected by a number of errors which occasioned a substantial miscarriage of justice. No complaint was made in respect of any of these errors by Counsel for the accused.[6] Little assistance was provided by prosecuting counsel although it should be recognised that he was only briefed on the day before the trial and did not receive the papers until 4 pm that evening. That is a most unfortunate state of affairs. In the end, the trial judge did not receive the assistance to which he was entitled. That doubtlessly contributed to the errors which require the applicant's convictions to be quashed.

Ground 1 - Error in Directions on Forensic Disadvantage

1. The learned judge erred in characterizing his remarks on the forensic disadvantage resulting from delay in complaint as 'comments'.

17 Under ground 1 the applicant submits that the trial judge erred in his directions as to the 'forensic disadvantage' suffered by applicant, due to delay on the part of the complainant in reporting the offending conduct. The obligation to give a 'forensic disadvantage' warning is contained in s 61(1A) of the Crimes Act 1958 (Vic). During his charge to the jury the trial judge gave a direction which purported to comply with the requirements of that section. The applicant submitted that the trial judge erred in delivering that direction, as a consequence of its description as a 'comment' rather than a binding direction of law.

18 The relevant part of his Honour's charge is as follows:

This is a trial which concerns events alleged to have occurred mainly between May and October 1999. I make a comment that you are free to take into consideration or not according to your view of the evidence.

The comment is that you may think that with the passing of time memories fade and that it is difficult to recall precisely things that happened some years ago. You may also think that this is, although it is entirely for you to decide, that by the time that Mr Morrow was made aware of these allegations made by [the complainant] when he was interviewed by police in October 2006, some things had changed.

[His Honour then set out the kinds of evidence that might be relied upon]

I have used these examples to show how the passage of time may cause disadvantage, especially to a person confronted by allegations of serious criminal offences. These are all matters for you to consider, what use you make of them is entirely for you to decide.

You must act on the evidence and only on the evidence. You must not speculate about matters which are not in evidence. In making these comments, I am not suggesting that it would be wrong to do so, that people who complain or make allegations of sexual conduct are in any way suspect or unreliable witnesses or persons who should be treated as inferior because they make such complaints or allegations.

It is well known that with the passage of time memory is affected. You may think that human experience is that some things fade and blur over the years and some things remain vividly imprinted in the person's mind. These are all factors which you may weigh up as you consider [the complainant's] evidence just as you should when you consider [the accused's] evidence.

19 Section 61 applies to a number of parts of the Crimes Act dealing with sexual offences. It applies to Subdivision (8C) of Part I which includes the relevant offence of sexual penetration of a 16 or 17 year old child. Subsection (1) codifies some of the rules as to directions to juries in sexual cases. This includes in paragraph (a) a prohibition against warning juries that complainants in sexual cases are an unreliable class of witness. Paragraph (b) deals with the issue of delay. It includes in (i) an obligation to warn the jury that there may be a good reason why a victim of a sexual offence might delay or hesitate in complaining about it, and in (ii) and (iii) consideration of how delay might affect credit, and an injunction not to warn that it would be dangerous or unsafe to find the accused guilty because of the delay.

If the judge, on the application of the accused in a proceeding to which subsection (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must, in any terms that the judge considers appropriate having regard to the circumstances of the case -

(a) inform the jury of the nature of the forensic disadvantage suffered by the accused; and

(b) instruct the jury to take that disadvantage into consideration.

21 Here the presentment covered conduct which commenced in 1 July 1999 to 31 October 1999. The applicant was arraigned at the time of empanelment of the jury on 26 March 2008. The question of a s 61(1A) warning was first raised by the trial judge. Counsel for the applicant initially appeared to concede that there was no 'significant forensic disadvantage' caused by the delay in the circumstances of the case, although she then asked to 'reserve' her decision and ultimately made application for such a warning to be given. His Honour then ruled that a relevant 'forensic disadvantage' existed and that such that a warning should be given. He identified a number of pieces of evidence that might have been relied upon had the complaint been made earlier. These were, first records of a motel where the applicant said he had sexual intercourse with the complainant. This was said to have occurred in 2000 (at which time the complainant may not have been under the care or supervision of the applicant). That act was denied by the complainant. Records of that motel stay could have assisted the applicant. The second was emails said to have been sent in early 2000, which, once again, might have supported the applicant's account of the relationship during this time. Third was airline records that the applicant said, might have been able to show he was not in Victoria at the time of the termination of pregnancy (contrary to the complainant's account that he attended the clinic with her). Fourth, were letters said to have been sent by the complainant, in late 1999 and early 2000.

22 Before considering whether the direction met the requirements of s 61(1A), it is first necessary to consider the submission made by senior counsel for the Director that no direction was required as there was no forensic disadvantage. This position does not appear to have been advanced by the prosecutor below.

23 As set out in the ruling of the trial judge, various categories of documents might have been available to the applicant and may have assisted in his defence. This was a case, as correctly identified by the trial judge, where a direction in accordance with s 61(1A) was required. The potential of some of these items to assist the applicant's defence that his sexual relationship with the complainant occurred in 2000 after she had completed Year 12 and not in 1999 meant that a direction in accordance with s 61(1A) was required.

24 The question then arises whether the direction by the sentencing judge complied with the requirements of that section. Counsel for the applicant submitted that by describing his direction as 'comments' that the jury were free choose whether to take into account, the trial judge failed to meet his obligation to 'instruct the jury to take those matters into account'.

25 Whether such a direction was sufficient depends upon the words chosen, considered in the context of the charge as a whole. Importantly, Counsel for the applicant drew attention to the fact that immediately after the trial judge made 'comments' when setting out the matters in s 61(1A), he gave a separate direction that was said to be binding as a matter of law (explaining that there might be good reason why a complainant might delay in making a complaint). The contrast between these two directions was said to heighten the danger of the jury being led into error by the comment made to the jury concerning forensic disadvantage. Throughout the charge the trial judge had emphasised the contrast between 'comments' which the jury were free to disregard and 'directions' that they were bound to follow as a matter of law.[7]

26 Senior counsel for the Director with his customary fairness conceded that if a forensic disadvantage instruction was called for, it had not been given. That concession was rightly made as, in our view, his Honour erred by describing his direction on forensic disadvantage as 'comments'. The imperative words used in s 61(1A) require that the jury must be directed that they are to take the relevant forensic disadvantage into consideration. The judge's direction was therefore inadequate as it left a discretion with the jury as to whether those matters ought be considered

27 Counsel for the Director invited the Court to consider this an error that might be remedied by application of the proviso to s 568(1) of the Crimes Act 1958 (Vic). As a matter of logic, it was submitted, a direction which has the consequence that a jury are to consider certain matters is of little practical difference to a direction that invites the jury to consider such matters. After all, it was argued, in either case the jury must consider that evidence before they decide what they will make of it. That consideration was said to effect, at the least, the 'materiality' of the error, so as to allow a characterisation of the error as one that did not constitute a substantial miscarriage of justice.

28 In response, Counsel for the applicant submitted that an erroneous s 61(1A) direction is an error that is of a kind as to make the application of the proviso improper.[8] It was submitted that the direction reduced the prospect that the jury would consider that the applicant had been seriously disadvantaged.

29 It may be doubted whether the error could be considered such a radical or fundamental departure from the requirements of a fair trial as to foreclose the operation of the proviso. Ultimately, however, it is not necessary to resolve that question as the error, in combination with other errors identified on this appeal, have the consequence that it is not possible to apply the proviso in this case.[9]

Ground 2 - Error in treating Liberato direction as a 'comment'- effect on burden of proof

1. The learned judge erred in characterizing his Liberato remarks as 'a comment' which [the jury were] free to disregard.

30 Under cover of ground 2, Counsel for the applicant submitted that the trial judge erred by giving a Liberato direction in erroneous terms. The complaint is similar to that made under ground 1: that the judge erred by describing his direction as a 'comment' rather than a direction of law that the jury were bound to comply with. The relevant part of his Honour's charge was as follows:

Let me turn to another trap that juries can sometimes fall into, whether the case be recent or old. It may appear to be attractive - superficial of me to say, right 'we'll sort this out who's lying'. The attraction is real but superficial. The problem is that you may not be able to resolve the conflict of that evidence. You may not be able to make any decision about that. Your task, so far as you are able to so, is to ascertain where the truth lies.

However, you can only convict [the accused] on which ever count you are considering if you are satisfied of the truth of the allegations made on behalf of the Crown. The problem with the who is lying approach is that it sometimes ignores that the onus of proof is on the Crown and that the standard of proof is beyond reasonable doubt.

However, having said that, in this case, where you do have a sharp conflict in the evidence, it seems to me, and this is a comment I make which you are free to disregard, if it does not dissuade you of its attraction. You may think that unless the Crown can satisfy you to reject the accused['s] evidence and to accept the version given by [the complainant] then you could not convict [the accused].[10]

31 The complaint relates to the italicised words in the last paragraph above. It was submitted that the judge improperly characterised his direction on the topic as a 'comment' that the jury was free to disregard. This was rightly said to be misleading as the jury was bound as a matter of law to acquit in the event that it entertained a reasonable doubt as a consequence of the applicant's evidence.

32 There was nothing said in the conduct of the case by the parties which required a Liberato warning be given. As Nettle JA and I said in R v BDX:[11]

As this Court said in R v KDY, the dissenting judgments of Brennan and Dean JJ in Liberato explain that the need for a Liberato direction arises where the jury has been left with the impression that the evidence on which the accused relies can give rise to a reasonable doubt only if they believe that evidence to be true. That was the suggestion that had been made in Liberato. It therefore required a clear and unequivocal direction about the criminal onus and standard of proof so that the jury would not mistake the 'choice' between witnesses as the real question or as concluding the issue whether the prosecution had proved its case beyond reasonable doubt. But the present case was not one in which the trial judge had 'overlaid' directions on the burden of proof or raised questions about a choice between conflicting witnesses which may have misled the jury in its process of reasoning. We agree that for the reasons given by Vincent and Weinberg JJA that the jury were not left under any misapprehension as to the onus of proof or that any Liberato direction was called for.[12]

33 Counsel then relied upon the allied submission that by choosing to embark upon a form of Liberato direction, the trial judge was bound to give a direction in the correct form. The choice of words used by the judge, it was said, undermined the burden of proof by leaving the jury with the impression that they might be free to convict the applicant, even where it was not satisfied as to the evidence of the complainant or where it did not disbelieve the applicant. The direction had, it was said, 'overlaid' directions on the burden of proof or raised questions about a choice between conflicting witnesses which may have misled the jury in its process of reasoning.'[13]

34 As was pointed out in the analogous case of R v BDX, the adequacy of any direction which is said to affect the burden of proof must be judged in the context of the charge as considered as a whole. In that case the judge directed the jury that 'this is a comment which I make which you can accept or you can reject, it does not bind you any way'.[14] He then continued '... unless the Crown can satisfy you to reject the accused's answers in the record of interview and his sworn evidence, and to accept the version given by [the complainant], then you could not convict'.[15] The Court rejected the relevant ground of appeal in the following terms:

[171] The second component of this ground complains that there was a miscarriage of justice because the trial judge failed to direct the jury that even if they preferred the evidence for the prosecution, they should not convict unless satisfied beyond reasonable doubt of the truth of that evidence. Added to that component was said to be the failure of the trial judge to direct the jury that even if they did not positively believe the evidence led on behalf of the appellant, they could not convict if that evidence gave rise to a reasonable doubt as to an element of the offence.

[172] There is plainly substance to the first limb of this ground. His Honour should not have couched his direction to the jury as a 'comment' which they were free to disregard. It was, in fact, a direction of law which they were bound to follow. Nonetheless, when viewed in context, and having regard to the charge as a whole, we are not persuaded that this one sentence, uttered incautiously, gave rise to any miscarriage of justice.

[173] In that regard, it should be noted that the passage to which this ground relates was preceded by the following directions:

Let me, before I go on ... turn to a trap that juries sometimes fall into, which may appear to be an attractive way of going about it, saying, 'right, we will sort this out by working out who is lying'. The attraction is real, but it is superficial and the problem is that you may not be able to resolve the conflict of evidence ... However, you can only convict [BDX] ... if you are satisfied, first of all, of the truth of the allegations made on behalf of the Crown, and the problem with the 'who's lying?' approach, is that it sometimes ignores that the onus of proof is on the Crown and the standard of that proof is proof beyond reasonable doubt.

[174] We are fortified in our conclusion that the jury were not left under any misapprehension as to the onus of proof by his Honour's use, shortly after this passage, of the word 'comment' by the fact that no exception was taken to this aspect of his Honour's charge. That suggests that if there were a misdirection, it did not give rise to a fundamental irregularity in the trial. Certainly, the error even if it could be described as material, did not lead to a miscarriage of justice. It did not deprive the appellant of a chance fairly open to him of being acquitted.

[175] As regards the second component of ground 4, the jury were told repeatedly of the need to be satisfied beyond reasonable doubt of the appellant's guilt before they could convict. The trial judge was not asked to give a direction of the kind now said to have been indispensable to a fair trial. In our view, there is no substance to this second component of this ground.[16]

35 The ratio of the Court in that case is apposite. There, as here, no exception was taken to that part of his Honour's charge about which complaint is now made. Plainly, the judge should not have described the relevant part of his direction as a 'comment'. As in R v BDX, viewed in context the jury could have been under no misapprehension as to the burden of proof. As in that case the jury were told repeatedly of the need to be satisfied of the applicant's guilt before they could convict.[17] No exception was taken to the 'comment' made by the trial judge. We would not hold that the error constituted a miscarriage of justice.

Ground 3 - Error in application of the rule in Browne v Dunn

3. The learned trial judge erred:

(a) in ruling that counsel for the applicant had failed to comply with the rule in Browne v Dunn and in directing the jury at all on that issue;

(b) in his directions on that issue including (i) the direction that the failure to put the particular allegations enabled the jury more readily to accept the complainant's evidence and to reject the complainant's evidence, (ii) the failure to direct on the types of matter that might explain counsel's failure to put the detailed allegations, including a belief that she had complied with the rule and the failure to direct that, before drawing an adverse inference against the applicant, the jury must be satisfied that there is no other reasonable explanation for the omission to cross-examine.

36 Under this ground the applicant submits that the trial judge erred in his application of the rule in Browne v Dunn.[18] The error was said to have arisen out of the ruling of the learned trial judge that Counsel for the applicant had failed to comply with the rule by failing to put to the complainant the detail of the complainant's allegations about her relationship with the applicant following year 12.

37 The complaint made under this ground relates to the central factual question in the trial. It was plain enough from the Crown case that there had been some level of sexual association between the complainant and the applicant. What was in issue was whether it occurred in 1999 during year 12, as alleged by the complainant, or whether it occurred early in 2000, as alleged by the applicant, after the complainant had completed her schooling. For the prosecution to succeed it was important that it establish to the jury's satisfaction that there was no sexual relationship in 2000.

38 The alleged breach of the rule emerged during examination in chief of the applicant. His evidence was said to contain a series of allegations that were not put to the complainant. Recognising a possible breach of the rule in Browne v Dunn, the trial judge interrupted this examination and provided to counsel a list of 14 topics that his Honour said constituted matters about which the complainant was not questioned. The trial judge made plain to counsel that he considered as a matter of fairness that those matters should have been put. The complainant was not given an opportunity to confront those particulars. Counsel for the applicant declined an offer to recall the complainant and to put those matters to her.

39 Each of the matters raised by the trial judge related to the detail of the applicant's evidence that there had been meetings in early 2000 leading up to an occasion when intercourse with the complainant took place at a particular motel. There had been no 'puttage' in cross-examination as to any of the detail of any of those meetings. The applicant's evidence included having attended at a chemist shop in the presence of the complainant who waited in the car whilst he went in to purchase condoms, by arrangement with her, before going to a particular motel. That evidence was of particular significance as the complainant had given evidence of an occasion during the period of the applicant's alleged offending when he had stopped at a chemist shop to obtain condoms. That evidence was challenged but it was not suggested that it had occurred at a different time and place.

40 In response to this intervention by the trial judge, the applicant's counsel conceded that there were some subjects about which the complainant had not been cross-examined and could have been. His Honour foreshadowed that he would make a comment to the jury that there had been non compliance with the rule. Counsel for the applicant suggested that the omissions were an 'oversight' by her. The trial judge was not attracted to that explanation and foreshadowed that he might, in commenting to the jury, suggest another reason- namely that the applicant was making it up as he went along. The cross-examination of the applicant then continued.

41 The trial judge gave the following ruling which he prefaced by stating that he would make a comment to the jury 'consistent with what is colloquially called the rule in "Browne and Dunn".'

HIS HONOUR: I turn to the next matter, which is compliance with the rule in Browne v Dunn. Earlier today I provided to counsel my own compilation of some 14 matters which could be said to constitute topics about which the complainant was not asked and which she was later contradicted on by Mr Morrow. Having raised this with [counsel for the applicant] by interrupting the evidence-in-chief of Mr Morrow, and having drawn [counsel's] attention to some matters at that time, this list takes into account not only matters that were raised by Mr Morrow in his evidence-in-chief but also a few that he raised in cross-examination.

I start by accepting the proposition that was put by [counsel] in her submissions on this subject, namely that a distinction needs to be drawn between matters that arise in evidence-in-chief and those which arise in cross-examination. I do take the view, however, that sometimes a matter raised in a non-responsive or gratuitous answer in cross-examination may be a matter that raises unfairness and I will need to give careful consideration to those matters which arose in cross-examination to see whether they fit into that category or not.

[Counsel] accepts, in my view, quite properly and fairly, that there were some subjects about which the complainant was not cross-examined and could have been. In particular, they go to details of the relationship about which Mr Morrow gave evidence, and which he says existed in the particular way that he describes and which is in sharp contrast to the relationship about which the complainant has given evidence. Those are matters which the complainant was not afforded an opportunity of commenting on and she may well have been able to say something about them.

One example is that [counsel] did put to the complainant in general terms, that there was one act of sexual intercourse that occurred between the complainant and Mr Morrow in early 2000, without any further details. Mr Morrow gave particular evidence of the date on which and the location at which, that sexual act had taken place. Furthermore, he gave specific evidence about having attended at a chemist shop in the presence of the complainant who waited in the car whilst he went in to purchase condoms, by arrangement with her, before going to the motel to engage in the sexual conduct to which I have referred. The complainant was not given an opportunity to confront those particulars. In my view she should have been, as a matter of fairness. That is one illustration of the type of subject which I believe ought to have been put and was not put to the complainant.

Before giving this ruling, I invited [counsel] to consider whether she wished to apply to have the complainant recalled as a witness. [Counsel] did not wish to do that. I should say that since completing her evidence, the complainant has been in court I think almost the entire time, if not for all of the remainder of the trial. She has therefore heard that which has been said by Mr Morrow in evidence, and she has also heard some of the argument that has taken place between counsel and myself in the absence of the jury. It may well be that those factors were borne in mind by [counsel] and may well have formed part of the basis or the basis for her decision not to seek to have the complainant recalled.

However, the fact remains that the complainant will not be recalled and so the position is still that in my view, there is an element of unfairness brought about by the fact that Mr Morrow gave quite detailed evidence about a number of subjects and the complainant had no opportunity to express whatever evidence she may have been able to give on those subjects.

42 The following day, following the completion of cross-examination of the applicant, counsel for the applicant sought leave to lead evidence from the applicant to explain why various matters had not been put to the complainant. With one exception it was accepted that the prosecutor had not cross-examined the applicant as to how it had come about that various aspects of his evidence had not been put to the complainant. Counsel for the applicant was concerned that if the trial judge commented to the jury on the absence of cross-examination the question of 'potential recent invention' might arise. The prosecutor offered to further cross-examine the applicant to put the absence of puttage to the applicant so as to enable his counsel to re-examine him on the issue. Instead the trial judge ruled that save for one specific matter raised by the prosecutor during cross-examination, he would not permit the applicant to give any evidence to explain why the complainant had not been cross-examined.

43 The applicant was then re-examined and in accordance with the ruling was limited to an explanation about the one matter that had been raised in cross-examination. It concerned the visit to the chemist shop to obtain condoms. The applicant testified that he had not provided those instructions until after the complainant had been cross-examined.

44 Neither party in closing addresses made any submissions on this issue. In his charge to the jury the trial judge then set out the details which had not been put to the complainant and which are set out in his Honour's ruling. The trial judge then charged the jury in the following terms:

I will turn now to another topic. During Mr Morrow's evidence, he gave evidence that, one, he travelled to Cairns and the Gold Coast during part of the vacation between terms three and four in 1999 and that the vacation began on 18 September 1999 and lasted for two weeks.

Two, that [the complainant] phoned him at home in late December 1999 and asked to meet him on 4 January 2000. They met at a train station near where she lived and went together to Elwood Beach. She gave him a letter that day expressing her feelings for him. They walked along the beach and had their first kiss.

Third, they arranged to meet again about a week later [in mid January].

Fourth, they met again at a train station in Brunswick. He then took her to look at air-conditioners. They then drove out along Burwood Highway to a park towards Dandenong where they walked and talked.

Fifth, they decided to meet again at the same place in about a week.

Sixth, Mr Morrow gave this evidence. He was asked what happened. 'We were driving along Bell Street and I can't remember what we were planning on doing, if anything, at that stage, and we decided to go into a motel, and, yes, it would be comfortable for a change.' 'You were driving along Bell Street, are you talking about Preston?' 'Yes.' 'What happened?' 'The motel we went to was on the corner of Bell and Patterson, so I parked there and paid for a room, signing in as usual.' 'Did you have any discussion about what you were going to do?' 'There was no discussion, no plans, not there, we just didn't know what to do.' 'Did you go anywhere before you went to the Bell Motor Inn?' 'Yes, before we went in there I went to a chemist.' 'What did you go to the chemist for, Mr Morrow?' 'We bought some condoms.' 'Would you say that clearly?' 'We bought some condoms at the chemist.' 'We or you?' 'I did.' 'What did she do?' 'She stayed in the car.' 'All right, what happened next after you went to the chemist, where did you go?' 'We went - we to the motel.' Transcript p 202.[19]

Were those passages in the evidence true, you might well think that [the complainant] could have supported them, yet [counsel for the applicant] did not in her cross-examination give [the complainant] the opportunity to either support these allegations or deny them.

There is a rule of conduct which requires counsel who proposes to lead evidence of a material fact, to put that fact in cross-examination to any witness who might be expected to be able to confirm or deny the evidence. In order to give the witness the opportunity to confirm or deny it. It is an important rule, it exists to enable you, the jury, to compare the evidence of one witness with that of another. It may be that if the allegations had been put in cross-examination, the witness would have shown by words or demeanour that he or she agreed with them.

On the other hand, it may be that the witness could have made a devastatingly effective [denial] of the allegations. The failure to cross-examine about them deprives you of the opportunity of seeing what reaction [the complainant] would have had to these allegations.

Failing to put the allegations cannot of itself disprove the allegations, nor can it prove any element of the crime which still requires to be proved beyond reasonable doubt. The only effect it can have is that of enabling you to form a view of the evidence which has been given. Enabling you to more readily accept evidence because the contrary assertions were not put to the witness or enabling you to reject the assertions because they were not put to the witness [who] could have denied them.[20]

45 On the appeal, counsel for the applicant submitted that this direction was erroneous in two respects. First, because there was in fact no failure to comply with the rule in Browne v Dunn. Second, and in the alternative, that the judge erred in directing the jury that the failure enabled the jury to more readily accept the complainant's evidence and reject the applicant's evidence. Allied to that complaint was a further contention that if the trial judge was entitled to go that far, he was then obliged to direct the jury as to the type of matter that might explain counsel's failure to put the detail of the allegations, including her belief that she had complied with the rule. The jury, it was said, should also have been directed that they could not reach an adverse view of the applicant's credibility as a consequence of this failure unless they were satisfied that there was no other explanation for his counsel's omission to cross-examine on those matters.

Was there a breach of the rule in Browne v Dunn?

46 It is convenient to first deal with the submission that there was no failure to comply with the rule. Counsel submitted that given the substance of the applicant's defence, it was sufficient that Counsel put to the complainant that she and the applicant did not have sexual intercourse in 1999 as alleged, but that they did have sexual intercourse in January 2000. Having received from the complainant a denial of the occurrence of sexual intercourse in January 2000, Counsel was not obliged to put the detail surrounding that instance of sexual intercourse.

47 The rule in Browne v Dunn is a 'rule of law and practice', sometimes described as a 'rule of professional practice'.[21] In Rees v Bailey Aluminium Products Pty Ltd this Court recently said:

The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. The rule rests upon notions of fairness and is designed to give the witness and the party calling that witness an opportunity to meet that challenge. The rule facilitates the tribunal's assessment of the reliability and accuracy of the witness. Consequently if matters in controversy are not 'put' to the witness in cross examination the tribunal's capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.[22]

48 The rule also applies to a criminal trial. The rule, resting upon notions of fairness, is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal's assessment of the reliability and accuracy of the witness. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness[23] and diminishes the tribunal's capacity to assess the merits of the issue.[24]

49 It is not always clear how far counsel must go in putting their case to avoid complaint that they have not met the minimum obligations arising under the rule. The extent of the obligation will be informed by the nature of the case to be presented by the cross-examiner. If it involves no more than a denial of the evidence of the witness, the 'puttage' may be of relatively short compass. Plainly the extent of the obligation will differ where a positive case is to be subsequently advanced. If the 'essential elements of the eventual case' are not put to the witness who may caste doubt on them, a fair trial may be jeopardised and adverse comment expected. But it will often be a matter of impression and interpretation as to whether what counsel has put sufficiently conveys the substance of the evidence subsequently to be given.[25] Bald 'puttage' will be sufficient only where it can be said that no unfairness arises from the absence of any further identification of the substance of the matters in controversy.

50 Where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features which may include the time, place and circumstances of the occurrence. As Hunt J stated in Allied Pastoral Holdings Pty Ltd v FCT,[26] the cross-examiner must not only disclose that 'the evidence of the witness is to be challenged but also how it is to be challenged'.[27] The detail in which an event is described will often lend an air of verisimilitude to the allegation. Fairness dictates that the witness against whom the allegation is made must have an opportunity to respond to the detail which may give life and colour to the allegation. It affords the witness the opportunity to explain or qualify their own evidence and the evidence upon which the challenge is to be based.[28] A witness, once appraised of the essential features of the allegation, may be more readily able to accept or reject it. The detail may enable the witness to recall that which may otherwise not be remembered. By resort to that very detail the witness may be able to cogently reject the allegation.[29] It may enable the witness to explain why the event could not have occurred in the way alleged. By identifying the features of the occurrence, the party calling the witness may appreciate that corroborative evidence is available to rebut the attack. None of this is to place an unduly onerous burden upon cross-examining counsel. It is no more than Lord Herschell appears to have had in contemplation in Browne v Dunn when making the following observations:

[I]t seems to me to be absolutely essential to the proper conduct of a cause. Where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.[30] (emphasis added)

51 The same point was made by Wells J in Reid v Kerr in referring to the cross-examiner who is 'willing to wound, and yet afraid to strike'[31] by not putting the full imputation so as to enable the witness to answer it.

52 It is also to be remembered that the second aspect of the rule serves another purpose - to enhance the tribunal's capacity in assessing the merit of the allegation.[32] Hence the following plea by Wells J in Reid v Kerr:

[A] judge is entitled to have presented to him issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains at night.[33]

53 There is an obvious danger arising from a forensic choice to abstain from challenging the witness. It may leave the tribunal unpersuaded as to the truth of the allegation so that it will decline to reach a conclusion adverse to the witness.[34] Moreover, if the features or detail are not explored, the perception may arise that the cross-examiner has deliberately avoided exposing them to the witness[35] or alternatively, that they were not known to the cross-examiner at the time.

54 Trial counsel went so far as to concede that there were some matters upon which she should have cross-examined further. Significantly, her explanation for the omissions was that it was partly oversight and partly the view that she had discharged her obligation.

55 The trial judge was right to conclude that there had been a substantial breach of the rule. There was no examination as to a number of events that the applicant alleged had occurred in 2000, and as to the occasion when intercourse was said to have occurred. No detail accompanied the bald puttage. The complainant was denied the opportunity to explain or qualify her evidence or that which it was anticipated would be given by the applicant. The failure to put the substance of the evidence of the applicant on these matters entitled the judge to direct the jury that the failure could be taken into account in assessing the weight to be attached to that evidence or any argument that rested upon it.

56 I turn to the alternative submission of the applicant that the trial judge erred in directing the jury. We are here concerned with the second aspect of the rule as explained by Newton J in Bulstrode v Trimble[36] which he described as 'relating to weight or cogency of evidence'.[37]

57 The terms in which a party's counsel cross-examines a witness for the opposite side are sometimes said to reveal the version of events with which the party has instructed that party's counsel.[38] But the dangers attendant upon a direction in a criminal trial about non-compliance with the rule in Browne v Dunn are well-recognised. Having regard to the essentially accusatory character of a criminal trial, the rule can only be applied with serious qualifications. Trial judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule. Neither should the trial judge ordinarily instruct the jury that the conduct of the case is something from which they may draw inferences.[39]

58 In MWJ v R[40] the joint reasons of Gummow, Kirby and Callinan JJ advocate caution in the application of the rule in criminal trials. They said:

However, for reasons explained, for example, in R v Birks,10 and R v Manunta,11 it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings....

The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.

One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it...

Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put.[41]

Where the breach is said to affect only the weight or cogency of the evidence or argument in support of the allegation not 'put'.

59 The failure to cross-examine in accordance with the rule does not mean that the evidence led in contradiction of the evidence that should have been challenged cannot be considered.[42] It is a matter of weight for the court to take into account.[43]

60 Ordinarily, a failure to put to the witness the substance of the evidence which is called in contradiction of the witness or to otherwise impugn the witness, will bear upon the weight to be attached to such evidence or the inferences that flow therefrom.[44] Where the tribunal of fact is a jury and the trial judge has concluded that there has been non compliance with the rule, the jury may be told that the failure bears upon the weight they attach to the allegation of fact that was not pursued with the relevant witness or the argument which rests upon that fact.[45] The direction given by Kaye AJA in R v Ferguson; R v Sadler; R v Cox,[46] quoted with apparent approval by this Court, well illustrates the point:

But if you consider that the matter was not fairly put in a way which would have given the Crown an opportunity to respond, either by calling witnesses or re-examining witnesses, then you can take that into account of course in weighing the argument made to you in final address by counsel for both accused. Because in that situation if you think the matter was not fairly raised with Crown witnesses in a way that put the Crown on notice, you would have an argument which the Crown has not had the opportunity to respond to. Now, that just goes to a matter of weight of the argument.[47]

61 It was a matter for the trial judge, whether he thought it necessary to draw to the jury's attention that the complainant had not been given the opportunity to respond to the evidence to be led from the applicant or the argument which counsel intended to advance in closing address. He was entitled to tell the jury in strong terms that the failure to put these matters to the complainant could be taken into account by the jury in assessing the weight to be given to those parts of the applicant's evidence that had not been explored with the complainant and the argument that rested upon that evidence.[48]

Where the breach is said to affect the credibility of a party or witness

62 In this case the trial judge did not, in directing the jury, confine himself to the weight that might be attached to the evidence or argument in support of the allegation. He instructed the jury that the failure to put such matters enabled the jury to reject the applicant's assertions and more readily accept the complainant's evidence on what were important factual issues.

63 Dealing with the circumstances in which breach of the rule may lead to the drawing of inferences adverse to the party in breach, Gleeson CJ in R v Birks[49] said:

It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution.[50]

64 In R v Manunta King CJ expressed concern about the prominence given to the Browne v Dunn issue in the trial judge's summing up. He said that:

It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury , the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury , however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.[51]

65 In R v Thompson[52] this Court was concerned with the consequences of a breach of the rule. An inference was said to arise that particular evidence by the accused had been recently invented.[53] I there said that when the jury is invited to draw such an inference, a careful direction should normally be given concerning the operation of the rule and the limited circumstances in which that inference may be drawn. I referred to the three discrete stages of a criminal trial at which care must be taken to ensure that the application of the rule does not produce any unfairness. It is the third stage with which we are presently concerned - namely whether an adverse inference as to credibility could be drawn and if so that 'the jury should have been assisted by reminder that there could be explanations for the inconsistency between what was put to the complainant and the accused's evidence other than that the accused's evidence was recently made up'.[54]

66 In R v Foley[55] the Queensland Court of Appeal, considered the circumstance to be 'exceptional' when it would be necessary for a trial judge to instruct a jury that it was permissible to disbelieve an accused because of a breach of the rule. It is one thing to comment on the fact that a witness has been treated unfairly but another thing altogether as Gleeson CJ observed in Birks to suggest that a person 'should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross examination to other witnesses by that person's counsel'.[56]

67 This was not a case in which the Crown sought to rely upon recent invention. Senior counsel for the Director drew attention to the fact that the impugned passage from his Honour's direction does not advert to recent invention. While that is true, such a finding underlay the directions that were given. In evaluating how the instruction was likely to have been understood, it should be remembered that the applicant had given an explanation in re-examination for why one important aspect of his evidence had not been pursued with the complainant. That re-examination had followed the trial judge's observation to counsel for the applicant that he might in his comments to the jury suggest recent invention.

68 Even if the prosecution had suggested afterthought, the directions did not assist the jury to deal with that issue. There was no examination of the process of reasoning by which the jury might conclude that the absence of cross-examination permitted them to draw an adverse inference as to the applicant's credibility.[57] The jury are not familiar with the course of trials or the wide discretion available to counsel in their conduct.[58] The direction by-passed any instruction as to the path of reasoning that would have to be followed by the jury before they could conclude that the failure had the consequences identified by his Honour. The trial judge simply informed the jury of a particular consequence of non compliance. That consequence might arguably have followed if, but only if the jury, upon proper directions, had been satisfied that there was no reasonable explanation for the omissions which did not reflect upon the credibility of the applicant. No necessary directions were given that would have enabled the jury to exclude all explanations other than afterthought by the applicant.[59]

69 If the trial judge considers a stronger comment is justified to the effect that an adverse inference as to credibility may be drawn against the accused and that the jury may more readily accept the evidence of the witness against whom the allegation is made, the trial judge must then direct the jury more extensively about the rule and possible explanations as to why it was not complied with. The adverse inference can only arise where the circumstance of the failure to 'put' the allegation gives rise to the prominent hypothesis that the accused's testimony is a recent invention or is otherwise a fabrication. The jury must then be directed that they can only draw an adverse inference against the accused if they can exclude those other explanations for the omission to cross-examine.[60]

70 This was not an appropriate case in which to have invited the jury to reason that as a consequence of the breach, they might reject the applicant's evidence and accept the complainant's evidence on what was a critical issue in the trial. Had it been one of those rare cases that warranted such a direction, the direction was inadequate to equip the jury to discharge their task. Save for one possible exception, the prosecution did not cross-examine the applicant to suggest that the absence of cross-examination of the complainant on these matters demonstrated that his evidence was a recent invention.[61] The prosecutor needed to have cross-examined the applicant as to each of the other matters if the jury were to be invited to draw the conclusion that the failure to cross-examine on them enabled the jury to reject the applicant's evidence and accept the complainant's account.[62] No argument to that effect was advanced by the prosecution in closing address. The direction went further than the comment which the trial judge adumbrated in his ruling. The jury were not directed to consider the explanation given by the applicant for the one matter on which he was re-examined, or any theoretical explanations which should have included the possibilities of oversight or a belief by his counsel that she had complied with the rule.[63] As the cogency of such an inference was a matter in issue, a direction was necessary that the jury be reminded that they must exclude any reasonable innocent explanation if they were to draw an adverse inference as to the applicant's credibility. The direction was expressed in such broad terms that the jury may have understood that the breach by the applicant's counsel permitted them to reject the applicant's evidence of any sexual relationship in 2000 and accept the complainant's evidence that there was then no such relationship. That would have meant, as I have explained, the rejection of the applicant's defence.

Ground 4 - Verdicts Unsafe and Unsatisfactory because of latent duplicity

4. The verdicts of guilty on Counts 2, 3, 6 and 7 are uncertain, unreasonable and/or against the weight of the evidence given that the particular acts said to give rise to these counts were never precisely identified by the complainant or the judge, such that each of these four verdicts may have resulted from the selection among numerous alleged acts of sexual penetration.

72 By ground 4 it is contended that the verdicts of guilty on Counts 2, 3, 6 and 7 are uncertain, unreasonable or against the weight of the evidence. Counts 2 and 3, and 6 and 7 relate to separate occasions of offending. Counts 2 and 6 are counts of oral penetration, that were said to proceed vaginal penetration (Counts 3 and 7).

73 No objection was taken to the form of the presentment by defence counsel at any stage of the trial. No application was made that the prosecution make an election as to one specific act as the offence charged within the period specified in the count. As many of the offences alleged by the complainant fell within the description of the offence in the relevant count there was, as described by Dixon J in Johnson v Miller, a 'latent ambiguity' which had to be redressed if the applicant was to have a trial according to law.[64] Where a count charges one offence and the evidence called establishes more than one instance of such offending, there is what is sometimes called 'latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown'.[65] The 'ambiguity' was known to counsel for both parties and the trial judge, before the complainant commenced to give her evidence. No complaint was made prior to this appeal about a lack of particulars or confusion among the counts.

74 Counts 2 and 3 were presented as occurring between the first day of July 1999 and the 31 day of July 1999 at 'St Kilda'. Counts 6 and 7 were presented as occurring between 1 July 1999 and 31 July 1999 at 'Melbourne'. It was submitted that these verdicts could not be sustained, on the basis that each of the verdicts may have resulted from the selection among numerous alleged acts of sexual penetration. There was, for example, said to be no identification by the complainant of a first occasion for what were said to be regular repeated acts at each location. Similarly, there was no attempt by the learned trial judge to isolate any one such allegation as being relied on by the prosecution. Further, it was said that it was not open on the evidence to do so.

75 It was conceded by the Crown that in the charge of the learned trial judge, the offences the subject of Counts 2 and 3 are not identified by any event or circumstance that would distinguish them from other uncharged acts of the same nature at St Kilda. The 'Summary of Prosecutor's Opening' dated 13 February 2008, does offer a distinguishing feature - that is the complainant handing a letter to the applicant. There seems, however, to have been no attempt during the course of the trial to identify with any specificity the particular occasion of the course of conduct that was being relied upon. This ambiguity is obvious from the terms with which the trial judge charged the jury in relation to these counts. His Honour said:

Counts 2 and 3. [The Complainant] said that after the first sexual act in Count 1 [a count that was clearly identified as the 'first occasion' of intercourse with the complainant], [the accused] and she met after school by arrangement about twice a week. Between May and September 1999, and drove to car-parks in St Kilda and other locations. On the occasion of Counts 2 and 3, [the complainant] told you that they were seated in the front seat of the car and they would hold hands and then move to the rear of the car. She said that she then took [the accuseds's] pants off and put his penis into her mouth. That is the conduct relied on for Count 2. After that she said that they would engage in sexual intercourse in which [the accused] would insert his penis into [the complainant's] vagina. That is the conduct relied on for Count 3.

76 It is further conceded by the Crown that in relation to the offences the subject of Counts 6 and 7 and said to be committed at 'Melbourne', there is nothing to distinguish them from other occasions of the same offending at Fairfield or St Kilda. The Counts were explained to the jury in the judges charge in the following terms:

Counts 6 and 7, [the complainant] did not give evidence of a particular date or location where these offences are alleged to have occurred, but gave evidence generally of occasions about twice a week between 1 July and 30 September 1999, when [the accused] would pick her up, usually from Bendigo Street, the street next to the street in which [complainant's college] was, and drive her usually to Fairfield or St Kilda.

Her evidence was that on these occasions in the rear seat of the vehicle the sexual activity took place fitting into a pattern in which [the accused] would first insert his penis into [the complainant's] mouth and then into her vagina. These acts, if you accept beyond reasonable doubt that they occurred, constitute Counts 6 and 7 respectively. [The accused] denies the sexual activity alleged on each of these occasions between 1 July and 30 September 1999.

77 Each of Counts 2 and 3 and 6 and 7 were presented as acts of sexual penetration occurring at two separate locations. The complainant gave evidence of a series of sexual acts at each of these locations over an extended period of time. No attempt was made by the judge to isolate any one such allegation as being relied upon by the prosecution. There was for example, no identification by the complainant of a first occasion. In the case of the 'Melbourne' counts, it may be that 'the first occasion' of intercourse could not be the distinguishing particular as it may have been the means of identifying the offence the subject of count 1. There was no attempt by either the trial judge or the prosecution to identify one such act as the offence charged. Nor was there any attempt by counsel for the accused to draw this defect to the attention of the trial judge. These failures by counsel on both sides contributed to the errors now conceded by senior counsel for the Director. As a consequence of the lack of sufficient particularisation identified by the applicant on the appeal the applicant has not had a proper trial giving rise to a substantial miscarriage of justice on each of the counts specified in this ground.[66]

78 It is necessary to make one final comment. Despite the heavy emphasis on uncharged acts in the presentation of the Crown case, it appears that no warning or direction was given to the jury as to the proper use to which that evidence could be put. Similarly, no complaint was made of this failure under the grounds alleged in the Notice of Appeal. In the event of a retrial, depending upon the nature and conduct of the Crown case, a warning of the kind described in R v Sadler[67] may be required .

Ground 5 - Verdicts inconsistent and unreasonable

5. The verdicts of guilty on Counts 2, 6 and 10 are unreasonable and/or against the weight of the evidence and/or are inconsistent with the acquittals on Counts 4 and 8.

79 Under cover of ground 5 complaint is made that the conviction on the counts of oral penetration were unsafe as it was not open on the evidence to be satisfied beyond reasonable doubt. Alternatively it said that there was no basis on the evidence for the jury to acquit the applicant on counts 4 and 8, but find him guilty on Counts 2, 6 and 10. It was submitted the convictions on the counts of oral penetration on occasions in the car (Counts 2, 6 and 10) are inconsistent with the acquittals on the counts of oral penetration on the two hotel occasions (Counts 4 and 8).

80 Each of Counts 2, 6 and 10 describe an occasion of oral penetration that was alleged to have preceded an act of penile penetration. The applicant was convicted on each count of penile penetration alleged. He was however acquitted, Counts 4 and 8, on two counts of oral penetration. These counts took place at the Northcote Hotel and a Mulgrave motel respectively. In relation to the 'motel counts', the jury acquitted the applicant of the oral sex penetration and convicted on counts alleging penile penetration on these occasions (counts 5 and 9).

81 The evidence of oral penetration is as described above in relation to ground 4 where the prosecutor said to the complainant 'did anything precede that?'. She answered 'most of the times I would perform oral sex'.[68] The balance of her evidence in chief on the question of oral penetration was as follows:

When you said you had oral sex prior to having penile penetration with the accused what did you mean? Could you take it slowly and describe it in your own words, if you would?

It's just as simple as me taking his pants off and putting his penis in my mouth

How long did that go on for? That would be a couple of minutes.

Then what would happen? And then if I wouldn't have already taken my clothes off I would do that, and he would just go on top of me and enter me.

I know I have probably been guilty of lumping everything together, but was that the pattern in each case when you went to either Fairfield or St Kilda or Clifton Hill or?

That's right.

Did it differ in any way when you went to the two motels, the sexual encounters?

Obviously we would have a lot more liberty since we had a room rather than just a - a car, so the duration of it obviously would be longer, the positions we would assume would be different. We would be completely naked. We have the ability to take a shower.

82 The gravaman of the complaint is that when the complainant was asked to identify any difference between the motel/hotel counts and the occasions that took place in the applicant's car she identified no relevant difference. Rejection of the motel/hotel counts by the jury was therefore inconsistent, it was said, with acceptance of the other counts where oral penetration was said to precede penile penetration.

83 This submission cannot be sustained. The first question relied upon by the applicant asked the complainant 'when you said you had oral sex prior to having penile penetration with the accused what did you mean?...'. That question referred back to an earlier response given by the complainant under examination where she said 'most of the times I would perform oral sex'. The 'times' that the complainant described there referred to occasions, 2-3 times per week, where she said that she would be engaged in oral and penile penetration with the applicant. On each of those counts the applicant was convicted. Properly analysed, the complainant never gave evidence, in terms, of any oral sex on the hotel occasions. There is therefore, a quite rational explanation for the jury's acquittals on those counts. It follows that there is nothing inconsistent with the verdicts in respect of counts 2, 6 and 10.

84 In my view there was evidence sufficient to support the offence specified in each of Counts 2, 6 and 10. It was the complainant's evidence that oral sex preceded acts of intercourse at St Kilda, Melbourne and Clifton Hill. There was only one occasion on which oral sex (Count 10) and penile penetration (Count 11) occurred at Clifton Hill. This ground fails.

6. An aggregate of the errors or defects identified in Grounds 1-5 caused the trial to miscarry

85 Under cover of Ground 6 the applicant relies upon the aggregation of defects raised under the separate grounds of appeal as occasioning a substantial miscarriage of justice.

86 The applicant submitted that an acquittal should be entered on Counts 2, 3, 6 and 7. The Crown while conceding that the convictions must be quashed submitted that there should be a new trial. Although senior counsel for the Director vacillated about the extent to which the Crown could on a further trial provide sufficient particulars as to these counts, he ultimately submitted that it may be that the Crown can furnish sufficient particulars. While the evidence given by the complainant suggests that there may be some difficulty in doing so, this is not a case in which it is obvious with respect to those counts that there is no means available to overcome those difficulties.[69] I would order a new trial on those counts.

87 In relation to the remainder of the Counts, I consider that as a result of the combination of errors which have been identified, the applicant has not had a fair and proper trial. Principally, but not only because of the combined effect of the failure to 'instruct' the jury to consider the applicant's 'serious forensic disadvantage' in obtaining evidence to support his allegation of events in 2000 and the direction to the jury that they could use his counsel's failure to cross-examine the complainant about events in 2000 as affecting his and the complainant's credibility, I am of the opinion that there has been a substantial miscarriage of justice. I do not stay to consider whether any of the identified errors would individually necessitate such a conclusion. I would grant leave to appeal, allow the appeal, quash the convictions and order a new trial on all counts the subject of the appeal.

88 I have read in draft the reasons of Redlich JA. I agree with his Honour that the appeal should be allowed, the convictions quashed and a new trial ordered.

[1] (1893) 6 R (HL) 67.

[2] MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436.

[3] Ibid, [18] (Gleeson CJ and Heydon J), [40]-[41] (Gummow, Kirby and Callinan JJ).

[4] [2000] 1 Qd R 290.

[5] Ibid 292; see also R v Manunta (1989) 54 SASR 17, 23 (King CJ); _R v Birk_s (1990) 19 NSWLR 677, 690-1 (Gleeson CJ); R v Laz [1998] 1 VR 453, 464; R v Nicholas [2000] VSCA 49; (2000) 1 VR 356, 410 {143]; R v Thompson (2008) 187 A Crim R 113 [120]; R v Rajakaruna (No 2) [2006] VSCA 277; (2006) 15 VR 592, 608 [52]-[53].

[6] The accuracy of this statement may depend upon the determination of the Browne v Dunn ground.

[8] R v Weiss [2005] HCA 81; (2005) 224 CLR 300.

[9] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, [114]-[115].

[11] [2009] VSCA 28.

[18] (1893) 6 R (HL) 67.

[21] R v Demiri [2006] VSCA 64, [35].

[22] (2008) VSCA 244, [21] (citations omitted).

[23] R v Thompson [2008] VSCA 144; (2008) 187 A Crim R 89, [111].

[24] Curwen & Ors v Vanbreck Pty Ltd [2009] VSCA 284 [26].

[25] R v Manunta (1990) 54 SASR 17, 23; R v Foley [2000] 1 Qd R 290, 291.

[26] [1983] 1 NSWLR 1.

[29] R v McDowell [1997] 1 VR 473, 479.

[30] (1893) 6 R (HL) 67, 70-1 (emphasis added).

[31] (1974) 9 SASR 367, 374.

[32] Curwen & Ors v Vanbreck Pty Ltd [2009] VSCA 284 [26]; R v Thompson [2008] VSCA 144; (2008) 187 A Crim R 89, [122]; R v Foley [2000] 1 Qd R 290, 291; R v Demiri [2006] VSCA 64, [36]; Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd [2003] VSC 291; (2003) 9 VR 171, 200 [100].

[33] (1974) 9 SASR 367, 373-4.

[34] Curwen and ors v Vanbreck Pty Ltd [2009] VSCA 284, [29].

[35] The practice of failing to expose actual instructions of the case that is to be put was said in Foley to 'cultivate dishonesty and is unworthy of counsel'. R v Foley [2000] 1 Qd R 290, 292.

[36] [1970] VicRp 104; [1970] VR 840, 846-848.

[37] Ibid 846; Myers v Claudianos (1990) 100 FLR 362.

[38] R v Robinson 1977] Qd R 387 at 394.; R v MAP [2006] QCA 220.

[39] R v MAP; see R v S W C [2007] VSCA 201 [16]-[18].

[40] [2005] HCA 74; (2005) 222 ALR 436. Cited with approval in R v MG [2006] VSCA 264; (2006) 175 A Crim R 342, [54]-[55] and in R v Thompson [2008] VSCA 144; (2008) 187 A Crim R 89, [60].

[41] [2005] HCA 74; (2005) 222 ALR 436, [18], [38]-[40].

[42] A trial judge is not entitled, by reason of non-compliance with the rule, to withdraw an issue of fact from the jury: R v Rajakaruna (No 2) [2006] VSCA 277; (2006) 15 VR 592.

[43] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, [14]

[44] Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846; R v McDowell [1997] 1 VR 473, 482; White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806; (1998) 156 ALR 169, 216-9; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134, 147; Pegela Pty Ltd v National Mutual Life Association of Australasia Ltd [2007] 14 ANZ Ins Case 90-131.

[45] R v McDowell [1997] 1 VR 473, 482; MJW v R [2005] HCA 74; (2005) 222 ALR 436.

[46] [2009] VSCA 198.

1. [48] R v Nicholas [2000] VSCA 49; (2000) 1 VR 356, [128]-[146], especially [140]-[143]; R v Rajakaruna (No 2) [2006] VSCA 277; (2006) 15 VR 592.

[49] (1990) 19 NSWLR 677.

[51] (1990) 54 SASR 17, 23.

[52] [2008] VSCA 144; (2008) 187 A Crim R 89.

[53] See Cross on Evidence - Australian edition - [17460] p17,163 and the cases set out in n 21.

[54] [2008] VSCA 144; (2008) 187 A Crim R 89, [113].

[55] [2000] 1 Qd R 290, 291.

[56] (1990) 19 NSWLR 677, 690.

[57] See R v S W C [2007] VSCA 201 [16]-[18].

[58] Cross on Evidence - Australian Edition - [17460], p17,164.

[59] R v Foley [2000] 1 Qd R 290, 292.

[61] The applicant was cross-examined by the prosecutor as to why there had been no cross examination of the complainant that he and the complainant had stopped at a chemist shop on the way to the motel.

[62] See R v Thompson [2008] VSCA 144; (2008) 187 A Crim R 89 as to the three stages at which the operation of the rule must be considered.

[63] These were the explanations proffered by the applicant's counsel in the jury's absence.

[64] [1937] HCA 77; (1937) 59 CLR 467.

[65] R v VN [2006] VSCA 111; (2006) 15 VR 113, [61].

[66] S v R [1989] HCA 66; (1989) 168 CLR 266; R v DWB [2008] VSCA 223; (2008) 20 VR 112, [4]-[40]; Trotter v R (1982) 7 A Crim R 8, 16-18.

[67] [2008] VSCA 198; (2008) 20 VR 69.

[69] S v R [1989] HCA 66; (1989) 168 CLR 266, 288 (Gaudron and McHugh JJ).