R v Papamitrou [2004] VSCA 12

112. M.P. agreed that she had made a statement to police after she had been told by K.W. (her brother's girl-friend) that she (i.e. K.W.) had done so. She had not read K.W.'s statement before she made her statement on 28 November 2000, although she and K.W. had previously discussed at the Greensborough Plaza the way the applicant acted. M.P. had initiated the conversation by telling K.W. about the applicant's conduct; K.W. responded by saying that he had acted towards her in that way as well.

116. R.S. was 15 years of age in November 2000. She worked at the "Reject Shop at Greensborough after school and at week-ends. She was a work-mate of K.H.; she also knew J.P. from the Tandy Store. However she did not know the complainant M.P. (J.P.'s sister). She was acquainted with the applicant, and knew him as the manager of the Tandy Store, which was next door to her place of work. On Sunday, 5 November 2000, she was working a three hour shift from 11 a.m. to 2 p.m.. When her shift was completed, she went to the Tandy Store to meet J.P. The applicant was present. He asked her whether she had seen "their new cages" in the store-room. He asked whether she would like to see them, she said she would. She had not been to the store-room before. The applicant took her there and unlocked the door. She noticed some Christmas decorations in a box within the cage. "As a joke", she said to the applicant: "You want to give me a boost up there"; to which he said that he would "try". She said that he then put his arms around her stomach and "started to kiss my neck". He then turned her around and gave her "a peck" on the lips, and kissed her a second time. She kissed him back. She said, in cross-examination - that she had done that because she was scared. He then touched one of her breasts (count 14; indecent act). This, she said, "did not last long" because her telephone rang. It was someone returning her call. After she had spoken [she said nothing about her predicament because she did not want to put herself in danger], the applicant took hold of her and kissed her "with the tongue". She said: "Aren't you married?" He said that there was "more to the story"; said he was "attracted to her" and "kissed her again". She sought to pull herself away from him and put her hands on his chest. He grabbed one of her hands and put it on his penis which she could feel through his trousers (count 15; indecent act). R.S. said that she went to walk away; at which the applicant took hold of her again and tried to kiss her. He asked her why she wanted to go, to which she responded: "Because I have to". He opened the door for her and asked her whether there was "anyone outside". He also asked whether he had "any lipstick on his face". He asked her to "wait 5 minutes" before returning to the shop. She said it would be "unusual" if they returned separately. When they returned to the Tandy Store, J.P. was there. The applicant asked her, in front of J.P., whether she had liked the store-room. She did not reply. The applicant then went into his office. J.P. asked her whether she "was O.K.". The applicant returned, played her a copy of a C.D. which he had made, and asked her whether she would like a copy. She said she would; and the applicant told her that he would put one together and bring it to the shop. He then called her into the office at the back. She went to the door but did not enter; He offered her a copy C.D. there and then and said "come here a second". She said that she took a step forward, at which he "tried to kiss her again". She pulled away and walked into the store. He followed her and gave her a C.D. Shortly after, she returned to the Reject Shop where she spoke to Jessica - a workmate. The workmate asked her "what's going on?". R.S. said that she had replied with words to the effect "Spiro tried to kiss me". On the following day, R.S. said that she went back to the Tandy Store to meet J.P. She was told that he was "outside, having a cigarette with K.W.". When she was outside with J.P., the applicant joined them. He said he wanted to talk to her about "working for Tandy" to which she replied that she did not need another job. J.P. and K.W. then left; and the applicant asked her whether she had told anyone "about yesterday". She said she had not; at which he asked her "not to say anything". She replied "Why shouldn't I?".

119. R.S. agreed that she had made a police statement about three weeks after the event - that is, on 22 November 2000. She said that she had initially attended the police station in respect of the complaint made by her work-mate K.H., but had ultimately made only her own statement. She agreed that she had told K.H. about the events which had happened to her about 1½ weeks before she made her statement. She had spoken to K.H. twice on the telephone, and had told her that the applicant had "tried to kiss her" - which, she conceded, was different from her ultimate complaint. K.H. had told her that the applicant had been "doing this sort of thing" to others.

122. Jessica Nelson gave evidence that she worked at the Reject Shop where R.S. also worked. She did not know R.S. well. She recalled an occasion where R.S. had spoken to her about the applicant. She thought that the words used by R.S. were that the applicant "had tried to come on to her". This conversation had occurred, she said, after R.S. had "finished her shift, and had been somewhere".

125. J.P., the brother of the complainant M.P., also gave evidence. He said that he was the applicant's employee at the Tandy Store for some 15-16 months commencing in mid 1999. He said he was M.P.'s brother and the boyfriend of the complainant K.W. He did not know the complainant K.G. He had met the complainant R.M., but did not know her well. He knew the complainants K.H. and R.S. from the Reject Shop. He would share morning "smoke breaks" with K.H. on the loading bay. His sister, M.P., and his girlfriend, K.W., would visit him at the store. He had "broken up" with K.W. in August 2001; but until then his relationship with her was harmonious. He gave evidence about the events after the "promotional river cruise". On the Ring Road, the applicant had twice stopped his car and asked him to get out and "check the brake lights". He denied that he was the one who had said that the lights were faulty. He said that "a couple of weeks" before he resigned from Tandy in December 2000, he had received a call from K.W. asking him to meet her in the "Sanity car park". She was upset; they had been arguing earlier in the day. He said that he would meet her during the "afternoon break"; but she had asked him whether he "could come now". Some five minutes before this call, J.P. had seen the applicant walk into the shop following an absence. The applicant had told him that he had "felt sick" and had been "throwing up". J.P. found K.W. crying. He asked her what was wrong. K.W. told him that she had earlier rung the Tandy Store and had spoken to the applicant, who had told her that J.P. was "not available". She said that she had told the applicant that she and J.P. had quarrelled and that the applicant had asked her to meet him "to talk about it". She said that she had met the applicant in the store-room and that he had "come on to her". She said that the applicant had told her that he "loved her" and "wanted to make love to her"; and that he was "touching her and kissing her" or "trying to kiss her". She also told him about the incidents in the car following the river cruise. J.P. said that he was angry about what he had heard and "wanted to resign immediately" but that K.W. had "talked him out of it". He did not confront the applicant, because he was scared about his position. Indeed, he said that when he returned to the store, the applicant had asked him if everything was "O.K."; and that he had replied "Yes"., He said that he enjoyed his job with Tandy, and had an "excellent relationship" with the applicant. However, he resigned in December 2000, because "he could not stand working there with the applicant". He had attempted to get other work at another Tandy Store.

128. J.P. also gave evidence that, some two weeks after he had been told by K.W. of the events which had happened to her, R.S. had visited the Tandy Store; and that he had seen the applicant leave the store with her. He had returned after some 10-15 minutes, followed some time after by R.S. She had, he said, a "scared and nervous look". J.P. asked her what was wrong, to which R.S. replied that the applicant "had tried to kiss her in the storage cage".

132. The applicant, as I have earlier indicated, was convicted on each of the 15 counts alleged against him. He initially applied for leave to appeal against those convictions, by notice dated 30 October 2002, on two grounds. By leave of the Registrar, given on 19 June 2003, the original grounds were substituted with a notice containing six grounds. In abbreviated form those grounds are as follows:

(i) The trial judge erred in failing to order severance of the presentment. (5 particulars substantiating this ground were given.)

(ii) A miscarriage of justice resulted from the failure to order severance of the presentment; and in particular, the evidence of each complainant was not admissible in the case of another or others.

(iii) The trial judge erred in the directions concerning the use of the evidence of each complainant in the case of the others. (Particulars were given of the asserted erroneous directions.)

(iv) The trial judge erred in his directions to the jury concerning separate consideration of each count. (Particulars were given.)

(v) The trial judge misdirected the jury as to the mental element in relation to counts 1, 11, 12, 14 and 15 (indecent act with a child under 16); and in particular, he directed that:

"An act is wilful for the purposes of this offence either in that the accused intended to perform the act alleged or did so reckless as to the consequences of his act.".

(vi) The verdicts of guilty on counts 1, 4 and 5 are unsafe and unsatisfactory; and in particular, no jury acting reasonably could have come to the conclusion that the activity said to found the count in each case was indecent.

Grounds 1 and 2 - Severance of counts; lack of "cross-admissibility of complainants' evidence

142. It is appropriate to consider these grounds together. They are complementary in the sense that the second ground asserts that the discretion to sever miscarried (ground 1) because the trial judge erred in his conclusion that the evidence of the several complainants was "cross-admissible". Trial counsel for the applicant had applied to the judge to sever the counts as between the six complainants on the basis that the evidence to be given by each complainant in respect of the counts relating to her was irrelevant to and, thus, inadmissible in support of the counts relating to the other complainants. The trial judge rejected that application, and declined to sever the counts. He did so on the basis that the evidence to be given by each of the complainants of the conduct of the applicant in committing the alleged offences against her bore such a similarity or relationship to the conduct of the applicant alleged by the other complainants as to render the evidence of each "mutually admissible" in the trials relating to the others. Having reached that conclusion, it became pointless - as he said - to order severance in the manner sought. In so concluding, his Honour's discretionary exercise was consonant with principles laid down in this Court in such cases as R. v. T.J.B.[3], R. v. G.A.E.[4] , R. v. Glennon[5]. It should, nevertheless, be pointed out that where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in Schedule VI to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by "mutual admissibility" or the lack thereof. The amendments to s.372 of the Crimes Act made by the Crimes (Amendment) Act 1997 (to which I have referred in paragraphs [2] and [3] above) were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not "cross-admissible". Those amendments introduced sub-sections (3AA) and (3AB) into s.372. Sub-section (3AA) provides that:

"Despite sub-section (3) and any rule of law to the contrary, if in accordance with this Act, two or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together";

"The presumption created by sub-section (3AA) is not rebutted merely because evidence on one count is inadmissible on another count."

As this Court pointed out in R. v. K.R.A.[6], these amendments make it appropriate that severance of the presentment :

"should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of R. v. Christou[7].

In particular, the Court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.

151. Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s.372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will - in most cases - be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton (to which I have referred in [3]) will remain influential in this State.

154. In this application, Mr. Priest submitted that the trial judge erred in his conclusion that the evidence of the complainants was cross-admissible, and that, accordingly, his discretion not to sever had miscarried. In its essence, the applicant's contention was that the judge should have ordered separate trials in respect of the counts relating to each complainant. Mr. Priest's submission was that there was insufficient "connecting link" or "underlying unity" between the evidence of the various complainants to warrant the judge's conclusion that their evidence was mutually admissible. The nature of the conduct alleged was quite different Mr. Priest submitted, and a proper appraisal of the evidence should have led his Honour to conclude that the evidence of each complainant fell into its own "water-tight" compartment. When properly analysed, so Mr. Priest submitted, the conduct of the applicant described by the various complainants was quite dissimilar and that the "similarities" relied upon by the judge demonstrate nothing more than "rank propensity". In amplifying this submission, Mr. Priest referred in detail to what he submitted were the differences between the allegations by the different complainants, and submitted that there was nothing which could be labelled as a "modus operandi" or significant similarity of conduct which would render the evidence of one complainant admissible in the notional trials relating to the others. He submitted that "similar fact" evidence, in any case, will only be received with "great caution" because the risk of prejudice is high and that, absent the "similarities" being "striking", the evidence will usually lack the requisite probative force to render it admissible.

157. Questions of the type which confronted his Honour in this case are not easy to resolve; the difficulties being compounded by the fact that the trial judge had - at least at the outset of the trial - only the depositions to work from. In this State, the issue is to be determined in accordance with s.398A of the Crimes Act; a provision which was introduced into the legislation by the Crimes (Amendment) Act 1997; the same legislation which introduced the amendments to s.372. Relevantly, for the purposes of this application, s.398A provides as follows:

"(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence. (3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of the evidence referred to in sub-section (2). (4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged when considering the weight of the evidence or the credibility of a witness. (5) This section has effect despite any rule of law to the contrary."

The purpose and scope of these provisions was considered by this Court in R. v. Best[8]. That decision makes it clear that the purpose of the section was to displace the "no other reasonable explanation" test for admissibility of "propensity evidence" as developed by the High Court in Hoch v. R.[9] and Pfennig v. R.[10] in favour of the "just to admit the evidence despite its prejudicial effect" test enunciated by the House of Lords in Director of Public Prosecutions v. P.[11]. Evidence which is broadly described as "propensity evidence" will now be admissible provided that it is "relevant to facts in issue in a proceeding" and if the court considers that "in all the circumstances it is just to admit it despite any prejudicial effect it may have ..." Issues arising as to the reliability of the evidence on account of possible collusion, collaboration or innocent infection are for the jury to decide[12].

162. In Director of Public Prosecutions v. P. (supra), the House of Lords was considering a case which, like this one, concerned the joinder in the one indictment of multiple sexual offences against multiple complainants. The issue was whether it was necessary, in the absence of "striking similarity" for the charges to be tried separately. The Court of Appeal, following Director of Public Prosecutions v. Boardman (supra) held that it was. The House of Lords unanimously reversed that decision. Lord Mackay of Clashfern L.C., who gave the leading judgment of the House said (at 460):

"As this matter has been left in Reg. v. Boardman, I am of the opinion that it is not appropriate to single out `striking similarity' as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another."

"When a question of the kind raised in this case arises, I consider that the judge must first decide whether there is material upon which a jury would be entitled to conclude that the evidence of one victim about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms, and while these forms may include `striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called ... a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle." (my emphasis)

These principles have been regularly applied in this Court in determining whether a trial judge had correctly exercised his discretion not to sever counts in cases such as this one on the basis that the evidence was admissible in accordance with the provisions of s.398A of the Crimes Act[13].

169. Applying the principles to which I have referred, I cannot agree with Mr. Priest that his Honour was in error in determining that the evidence of the complainants was mutually admissible. In this case, the issue was whether the offences had been committed; not the identity of the person who had committed them. It was not necessary to demonstrate, as I think Mr. Priest was at times submitting, that there were "striking similarities" between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct. Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an "underlying unity" between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view - and I think correctly - that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy "storage room", the toilets at the Plaza, the vehicle which he drove from his place of work or from work related functions. Whether one describes these factors as providing an "underlying unity", or a common "modus operandi" or a "pattern of conduct" is of little consequence. The "links" were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of "infection" the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive - and in my view strongly supportive - of the evidence of others. Not only that, but - in my opinion - the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a "prejudice" to the accused. But the "prejudice" of which s.398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them. For the reasons which I have given, his Honour was entitled to conclude that the evidence of each complainant went beyond evidence of "mere propensity" as the applicant here submitted.

172. For the reasons stated, I cannot accept that his Honour was in error in concluding that the evidence of each complaint was probative and admissible in the circumstances. I would accordingly reject grounds 1 and 2.

176. Mr. Priest submitted that, having refused severance of the presentment, it was critical for his Honour to properly direct the jury as to the necessity for separate consideration on each count; which in turn required proper identification of the evidence which was - and was not - admissible on each count. It was contended that his Honour should have, but did not, give "forceful and complete instruction" as to the manner in which the "cross admitted" evidence might (and might not) be used.

179. In support of his submissions, Mr. Priest isolated two passages from his Honour's charge, which - as it seems to me - was otherwise a complete and carefully constructed charge calculated to address the issues which had arisen in the trial. The first of the two passages criticized by counsel appeared early in the charge when the judge was directing the jury as to the need to consider separately each count on the presentment and the evidence relevant to each count, He said:

"The next matter I want to deal with is that you are considering 15 counts here. They are being all heard together as a matter of convenience because, if you have to have 15 separate trials, there would be a fair duplication (sic) of evidence, wouldn't there, and take a considerable amount of time. But despite that fact, that the 15 counts are being heard together, the accused is entitled to have you, and you must, deal with each count and the evidence relevant to it one by one, that is, ensuring with each count that the Crown has proved its case beyond reasonable doubt. Of course, you should be logical and consistent in dealing with different counts and there may well be quite a degree of commonality, that is, facts that pertain to all or several counts, and those particularly apply with respect to each of the six complainants, but it would be illogical to find a fact differently in respect of different counts, so that you do need to be logical and consistent there, but even accepting that fairly commonsense proposition, it does not alter the rule which I just indicated to you, which is that you must, when deciding if the elements are made out and therefore whether the accused is guilty or not guilty, go through the counts one by one. It would be quite wrong for you simply to apply the logic, `Well he's guilty of one count, so therefore he must be guilty of the others', or the other way round, `He's not guilty on one count, therefore he must be not guilty on the others'. You must consider each count and the evidence relating to it and ensure that with each count, before you bring in a verdict of guilty, that the Crown has proved its case beyond reasonable doubt."

183. The second of the two passages to which counsel referred us appears in the context of his Honour's discussion of the issues in the trial, and the evidence relating to those issues. The major issue, his Honour told the jury was:

"Did the accused do what has been alleged he did by the six complainants? You are aware that in his record of interview, he denies that he took part in any of the conduct alleged. Then, as I say, there is also an issue in respect to a couple of offences of indecent act with a child under 16 as to whether the actual behaviour was indecent. They are the issues you should focus on as you are considering the evidence and while you are deliberating. As you are aware, there are six complainants, six girls who say that the accused man committed sexual offences upon them. What I want to turn to now is to tell you how you can, and how you cannot, use their evidence. I have already directed you that you must consider each count and the evidence related to it separately. I further direct you - and when I say I direct you, that means that you must follow what I am telling you because it is a direction of law - I further direct you that you must not reason that if the accused committed an offence against one complainant, that he was the kind of person who was likely to have committed an offence against another complainant. The commission of an offence charged can only be proved by the evidence relating to it. You are entitled to consider that the evidence of all the complainants taken as a whole makes it more probable that each of them is telling the truth. All their evidence may therefore be received by you as mutually supportive of their respective allegations. Here the question of collusion or collaboration between complainants is being raised; that is that they all got together to make up a consistent story. I direct you that you must be satisfied beyond reasonable doubt that no such factor was operating, that is collusion or collaboration, before you may use the evidence of one complainant as supportive of the evidence of another complainant."

His Honour then went on to give instruction as to the defence contention that some of the complainants had concocted or embellished their evidence as a consequence of particular assigned motives. No contention has been made in this Court that such directions were inadequate.

188. The essence of the criticism made of these directions was that they were too "oblique", or too "bald" to bring home to the jury how the evidence of the complainants could, and could not, be used. No context, it was said, was given to the directions that the jury should apply "logic" and "consistency" when considering and applying common facts to different counts in respect of different complainants. Further, it was contended that it was an inadequate direction to tell the jury that they could use the evidence of "all the complainants taken as a whole" as making it more probable that each was telling the truth; and as supportive of their respective allegations. It was contended that, having ruled that the evidence of the complainants was "mutually admissible" on the basis of its "underlying unity", his Honour was bound to tell the jury that they could only use the evidence of one in the case of another if they (the jury) were satisfied that the underlying unity existed, and that they could only use the evidence if they concluded that it revealed "similarities", "system or pattern" or "unusual features" of a type which raised as a matter of common experience the objective improbability of the various allegations having occurred in a manner other than that being alleged by the prosecution.

191. I agree with Mr. Priest that, in a trial such as this where there is evidence before the jury which is capable of being misused, it is incumbent upon the judge to direct the jury as to the manner in which that evidence can be used and, more importantly, as to ways in which it cannot be used. This point was made clear by King, C.J. in R. v. Dolan[14] in a case where evidence of "uncharged" criminal conduct on the part of an accused had been put before the jury. His Honour said:

"In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put."

That reasoning applies also in this case where the evidence of the other complainants was being led as being probative of the allegations made by each[15].

196. However, I cannot agree that, in their context, the directions which his Honour gave transgressed those imperatives or were inadequate as has been contended. I say "in their context" because his Honour's directions were not given in a vacuum. They were given after counsel for the prosecution and counsel for the accused had made lengthy addresses in the course of which the latter had subjected the evidence of the complainants to critical analysis, submitting that the jury should conclude that the evidence of each was unreliable. His Honour had directed the jury, in strong terms, that it was for them to determine the truth and reliability of the evidence of each witness and that, to the extent that it was rejected, it could not be used in their deliberations. It is apparent that it was in this context that his Honour directed the jury that they had to be "logical and consistent" in applying evidential facts found or not found in respect of individual complainants in determining the strength of support which the evidence of each gave to the evidence of others. This Court has not had access to a transcript of counsels' addresses; but only to the summary made of them by his Honour. It is, however, significant that trial counsel for the applicant (a very experienced counsel in criminal trials) took no exception to the passages in the charge which are now claimed to be inadequate.

199. The real vice in the directions (or lack of them) given to the jury, so it was submitted, lay in the failure of the trial judge to tell the jury of the "conditions required to exist" before the jury were entitled to use the evidence of one complainant as support for the evidence of another, or to entitle them to use the evidence of the complainants, if accepted, as bearing upon the objective improbability of the six of them giving the evidence which they gave, if it were untrue. Thus it was contended that the judge, having admitted the evidence on account of its "underlying unity" was bound to direct the jury that they could only use the evidence of one if they found that such "underlying unity" existed. Thus, it was said, the jury should have been directed that they could only use the evidence if they were satisfied that it revealed the necessary "similarities" or "unusual features" or "system or pattern" such that it raised, as a matter of common sense, the objective improbability of the alleged conduct occurring in a manner other than that contended for by the prosecution.

202. In my opinion, the judge was not bound to give the type of direction to which I have referred in the preceding paragraph. I agree with the submission made by counsel for the respondent in this Court that the matters referred to are criteria of admissibility of the evidence of "similar fact", and that it is no part of the trial judge's function to invite the jury to "second guess" his determination that the evidence was relevant and admissible, and probative of facts in issue. It is the relevant purpose for which the evidence is admitted, and not the reasons for determining its admissibility, which should dictate the directions as to the use which the jury is entitled to make of it. If the judge was in error in admitting the evidence then, no doubt, an appellate court will say so and determine, on that basis, whether a miscarriage occurred. However, once the evidence has been admitted as probative of facts in issue, the function of the trial judge is to direct the jury as to the uses to which such evidence can and cannot be put. That is what the trial judge did here. He told the jury, correctly in my view, that (on the assumption that they accepted the evidence as reliable and excluded any possibility of concoction or collusion) they could use it in support of the complainant whose evidence they were considering, or as bearing upon the improbability of six persons telling similar lies. Relevantly, that was the probative force capable of being assigned to the evidence as a whole[16]. However, the judge was also bound to tell the jury that they could not engage in the impermissible use of propensity reasoning; namely that they could not reason from a finding that the accused had committed an offence against the complainant, whose evidence they were considering, that he was therefore the kind of person who was likely to have committed an offence against another. This the judge also did. I am, thus, of the opinion that the judge correctly perceived the purposes for which the evidence of all complainants could, and could not, be used, and adequately instructed the jury as to the use which they could make of that evidence; and the purpose for which they could not use it[17]. For the judge to have instructed the jury that they could only use the evidence of one complainant in support of the evidence of another if they were satisfied that there was an "underlying unity", or a "strong similarity", or a "common pattern or thread" between the evidence of the individual complainants would not only, in my view, have been calculated to mislead the jury; but also would have redounded to the detriment of the applicant. That, no doubt, is why trial counsel for the applicant raised no exception to the content of his Honour's directions. So far as I am aware, directions similar to those given in this case have been given in other cases which this Court has considered[18], concerning the directions which are appropriate in cases such as this where evidence of several complainants has been admitted pursuant to s.398A Crimes Act. That, of course, is not to say that trial judges should slavishly follow "standard directions". Directions should, as I have said, be relevant and appropriate to the issues raised in a particular trial.

205. It was further contended on behalf of the applicant that because the trial judge had told the jury that they were entitled to regard the evidence of the complainants as "mutually supportive" of their respective allegations, he was, in a sense, suggesting that the evidence of each was a "species of circumstantial evidence" and that, accordingly, he was bound to tell the jury that such evidence could only be used if it bears "no reasonable explanation other than the happening of the events in issue". Again, as I see it, this submission is unsound because his Honour's directions to the jury that they could regard the complainants' evidence as "mutually supportive" was given in the context that the jury were entitled to use the evidence of the complainants, if accepted, as bearing upon the probabilities that each was telling the truth. In any event, and in the same context, his Honour told the jury that the only "reasonable explanation" being raised in opposition to that use of the evidence by the jury was that the complainants had "all got together to make up a consistent story" and had, thus, "collaborated" and colluded", and that before the jury could make use of the evidence in the manner contended for by the Crown, they would have to be satisfied beyond reasonable doubt that "no such factor was operating".

208. For these reasons, I do not accept the contention that his Honour's directions were erroneous, or that any miscarriage occurred as a consequence of them. I would reject grounds 3 and 4.

Ground 5 - Misdirection of mental element re "indecent act"

212. This ground was not strenuously pressed. The trial judge had charged the jury, when dealing with the offence of "wilfully committing an indecent act with or in the presence of a child under the age of 16" (s.47 Crimes Act), that the element of "wilfully" was made out if the jury were satisfied that the accused did the act "intentionally" or was "reckless to the consequences". In support of the ground, Mr. Priest contended that it was a misdirection to tell the jury that "wilfully" included "reckless as to the consequences of his act". This direction, it was submitted, was largely meaningless. Whilst I think there is substance in this contention, the misdirection could have occasioned no miscarriage of justice in the trial. The issue for the jury was, as the judge told them, whether the acts occurred and, if they did, whether they were indecent. It was no part of the defence case that the complainants had misinterpreted acts of which they complained. If the jury found that the applicant had done the acts alleged by the complainants, they could not have reasonably concluded otherwise than that they were intended. I understood that it was for this reason that Mr. Priest conceded that the ground was "not his strongest one". In my opinion, it should be rejected.

216. It was finally argued in support of the application that the convictions recorded on counts 1, 4 and 5 were unsafe and unsatisfactory. Count 1 was the alleged offence of "committing an indecent act" with K.G.; and counts 4 and 5 were those which alleged the indecent assaults of K.W. The indecent act alleged in count 1 was the "pulling of K.G. between the applicant's legs whilst he was seated on the pole in the car park, and kissing her on the cheek"; and the indecent assaults alleged in counts 4 and 5 comprised the applicant placing his hand on the thigh of K.W. on two occasions whilst they were in his car returning from the "river boat function". It was the applicant's contention that it was not open to find any of this conduct "indecent", absent evidence of any indecent contact with the applicant's genital area (count 1); and absent evidence of the applicant's hand moving into close proximity of K.W.'s groin (counts 4 and 5).

219. There is no dispute that the judge correctly directed the jury that, to be "indecent" for the purposes of the respective offences, the jury had to be satisfied that the act was committed "in circumstances of indecency" and that it was for the jury to determine whether the act was "indecent" by applying the ordinary standards of the community.

222. For the verdicts to be set aside by an appellate court on the ground that they are "unsafe", the Court must conclude that, upon the whole of the evidence, it was not open to the jury, properly instructed, to be satisfied that the accused was guilty[19]. In applying this test, the Court cannot disregard the fact that it is the jury which is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of seeing and hearing the witnesses[20].

Applying these principles, I do not regard these verdicts as unsafe. It was, in my view, well open to the jury to find that the acts of pulling a 15 year old girl between his legs and kissing her on the cheek in circumstances where the accused and the victim were in an isolated car park and the victim was resisting, were acts committed in circumstances of indecency. Likewise, in my view, it was open to the jury to find that the placing of the hand of the accused on the thigh of K.W, and sliding it up towards the groin on the two occasions where J.P. had been asked to leave the car to "check the brake-lights,", were also acts of "indecency" in accordance with the instructions which the jury had been given. There is nothing in the decisions relied upon by the applicant of R. v. Harkin[21] or R. v. Court[22] which would lead me to the contrary view. Accordingly I would reject this ground.

226. I would, accordingly, dismiss the application for leave to appeal against conviction.

230. Having had the benefit of reading the reasons for judgment of the President I agree that this application should be dismissed.

234. I agree that the application for leave to appeal against conviction should be dismissed for the reasons stated by the President.

[1] [1986] HCA 65; (1986) 61 A.L.J.R. 1.

[2] cf. R. v. Vaitos (1981) 4 A.Crim.R. 238 at 271-2.

[3] [1998] 4 V.R. 621 at 626-7, per Callaway, J.A.

[4] [2000] VSCA 18; [2000] 1 V.R. 198 at 205 per Callaway, J.A.; at 212-3 per Chernov, J.A.

[5] [2001] VSCA 17 at [99] per Callaway, J.A.; with whose reasons the President and Ormiston, J.A. concurred.

[6] [1999] VSCA 157; [1999] 2 V.R. 708 at 715 per the President, Brooking and Ormiston, JJ.A.

[7] [1997] A.C. 117 at 129. The leading judgment was given by Lord Taylor of Gosforth who, adopting the reasoning of Lord Lane, C.J. in R. v. Cannan (1990) 92 Cr.App.R. 16, took the view that the statute gave the trial judge an undoubted discretion and that to hold that, in sexual offence cases, it should be exercised in a particular way was an unnecessary fetter on the discretion. The "essential criterion" was "a fair resolution of the issues" which involved not only fairness to the accused but also to the prosecution and its witnesses. His Lordship referred to the decisions of the High Court in De Jesus and Sutton (supra).

[8] [1998] 4 V.R. 603.

[9] [1988] HCA 50; (1988) 165 C.L.R. 292 at 296.

[10] [1995] HCA 7; (1995) 182 C.L.R. 461.

[11] (1991) 2 A.C. 447.

[12] R. v. Best, supra, at 611 per Callaway, J.A.

[13] cf. R. v. G.A.E, supra at pp.212-3 per Chernov, J.A.; R. v. Best, supra, at pp.610-11; R. v. Mitchell [2000] VSCA 54; (2000) 112 A.Crim.R. 315 at 318-9 per Tadgell, J.A.; R. v P.J.O. [2001] VSCA 213, per Buchanan, J.A. at [15]-[17]; R. v. Glennon, supra, at [109]-[111] per Callaway, J.A.

[14] [1992] SASC 3638; (1992) 58 S.A.S.R. 501 at 503

[15] R. v. Schlaefer (1984) 37 S.A.S.R. 207 at 211 per King, C.J.

[16] R. v. Best, supra, at 618, ll.30 ff.

[17] cf. B.R.S. v. R. [1997] HCA 47; (1997) 191 C.L.R. 275 at 301 per Gaudron, J.

[18] cf. R. v. P.J.O., supra, at [27]-[28] per Buchanan, J.A.; R. v. A.L.P. [2002] VSCA 210 (18 December 2002) per Eames, J.A. at [96].

[19] M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 493).

[20] Chamberlain v. R. [No.2] (1984) 153 C.L.R. at 532, 621.

[21] (1989) 38 A.Crim.R. 296.