R v Pearce [1999] VSCA 221

19. The charges alleged four episodes of penile-vaginal intercourse with the one victim - two in May 1994 and one in each of July and October 1994. At the time of the alleged offences the complainant was an 18-year-old woman of impaired mental functioning and the applicant a 42-year-old senior clinical psychiatric nurse, being her case manager while she was an out-patient of the Bendigo Regional Psychiatric Service. According to the complainant she was raped by the applicant twice in May 1994 when he visited her in his professional capacity at her parents' house at Newstead, west of Castlemaine, and once in July and once in October 1994 in a motor car in which he had driven her to a secluded spot in bushland between Newstead and Castlemaine.

22. The complainant's account of the sexual encounters of which she complained was entirely uncorroborated. The applicant gave evidence in his trial in which he denied outright that he had ever raped the complainant and denied also that he had ever had sexual intercourse with her. It was, therefore, on its face an unvarnished case of oath against oath.

25. The applicant seeks to attack the verdicts on numerous grounds set out in his amended notice of application. The first complained of the manner of empanellment of the jury but, having regard to the recently delivered judgment of the High Court in Katsuno v. The Queen [1999] HCA 50 (30 September 1999), the ground was not pursued and I shall say no more of it. The many remaining particular grounds can be grouped for convenience under the following broader heads -

(a) The verdicts are unsafe and unsatisfactory (ground 2).

(c) Evidence of uncharged acts led by the Crown was inadmissible and highly prejudicial (ground 4).

(d) The counts of taking part in an act of sexual penetration were not proper alternatives to the counts of rape and should not have been left to the jury (ground 5).

(e) The judge's charge was defective in several respects (grounds 6, 7, 8 and 9).

33. The submissions in support of ground 2 - that the verdicts were unsafe and unsatisfactory - were founded on several considerations that were particular to the complainant and relied also to no small extent on an accumulation of some of the matters referred to under the other grounds, 3-9.

36. The principal matters particular to the complainant that relied on were these -

(i) at immediately material times, and for some time before and afterwards, she was suffering from serious psychiatric delusionary illness which itself rendered her evidence unreliable;

(ii) there was great delay - three years and more - before she made any complaint against the applicant;

(iii) her conduct and her evidence were inconsistent and accordingly unreliable.

42. What follows includes, as briefly as may be, the salient features of the complainant's psychiatric condition and its manifestations, as revealed by the oral evidence and by various hospital and medical notes and reports (to which I shall sometimes refer compendiously as "the records").These, although they were not formally tendered as exhibits, were referred to and treated by the judge and by counsel on either side at the trial as though they were evidence. Counsel for neither the Crown nor the defence who appeared at the trial appeared in this court; and Victoria Legal Aid, which assisted the applicant at the trial, has since ceased to do so. In these circumstances, the reason why the records were not tendered has not been explained to us. The failure to tender them was a most unfortunate and unsatisfactory feature of the trial; and, because of the failure, or perhaps some other reason, their full significance was not brought out to the jury. Certainly, the jury were deprived of the opportunity that they should have had to peruse them in the jury room when they retired to consider their verdicts. The records were made available for the purpose of the appeal only, as it would appear, after an interlocutory application was made to the Court of Appeal for an order for their production. In the event an undertaking was given to the Court by the Crown to produce the records to the Registrar, thus avoiding the need to press for an order.

45. The complainant, who was born on 17 December 1975, has a history of psychiatric disturbance extending back at least to 1992. The records disclose that she was admitted involuntarily to the Bendigo Psychiatric Centre in February 1992 for three days suffering from reactive depression. For six months beforehand she had been living in emergency hostel accommodation because her mother would not accept her at home until she would admit that she had lied about claims that she had been sexually abused by her father since the age of 13, which claims her father and her mother and her sister had denied. She admitted at the trial that these allegations against her father had been false, made with the ulterior motive to get away from her parents' house. Her general medical practitioner diagnosed her on 21 February 1994 to be suffering from marijuana-induced psychosis and on that day she was re-admitted involuntarily to the Bendigo Psychiatric Centre, where she remained until 7 March 1994. During that period as an in-patient she was recorded to have had auditory hallucinations, claiming to hear three or four male voices (her boyfriends') talking both to her and among themselves, and to have expressed suicidal ideas. The records show that on 25 February 1994 she asserted at the Centre that on 20 December 1993 a young man who was known to her came to her caravan at her parents' house, threatened her with a gun and then raped her; and that a week later a friend of the rapist's attempted to rape her but that, as he had no weapon, she fought him off. She said she wanted to see this man gaoled for offending her in this way. When asked in cross-examination at the trial about these incidents the complainant swore that "there was no gun involved" in the first of them and she denied that in the second there was any attempt to rape her.

48. Upon her release from the Centre on 7 March 1994 the complainant lived with her parents and sister at their home at Newstead, and the applicant was assigned as her case manager or carer. He saw her by appointment at the Community Health Centre at Castlemaine on three occasions in March in order to monitor her progress and supervise her regime of medication. On 13 April, and again on 20 April, he visited her for the same purposes at her parents' house. On 27 April 1994 the complainant telephoned the applicant at the Health Centre to report that she was "hearing voices again". He visited her at home on that day with another nurse, and he did the same on 28 April. According to the records the applicant and a student nurse visited the complainant at home again on Tuesday, 3 May 1994 but on no further occasion. Arrangements were made for her to see Dr Sethi, a visiting consultant psychiatrist, on Monday 9 May and, so far as appears from the records, that appointment was kept.

51. The applicant continued to be the complainant's case manager until November 1994. Appointments were made for her to see him several times a month, usually at Castlemaine. According to the records she had numbers of meetings with him face to face at the Castlemaine Health Centre but she missed a number of appointments. She also consulted him during this period on the telephone about her behavioural problems, which were apparently intensified by her failure to follow the recommended regime of medication. It was during this period that the applicant's offences allegedly occurred. I shall refer later to the complainant's evidence concerning them. In November 1994 the complainant moved to live in Bendigo and one Kay Syme became her case manager.

54. The complainant was admitted as an in-patient at the Bendigo Psychiatric Centre in December 1994 and in 1995. She was re-admitted as a voluntary patient on 9 April 1995 and then admitted having had sexual relations with at least ten males since her last discharge from the Centre nine weeks previously. She was discharged from the Centre on 13 April 1995 and went back to live at her parents' house at Newstead. Later in 1995 the applicant was re-assigned to be her case manager and he remained so until January 1996, when she was re-admitted to the Bendigo Centre. In April 1996 she described some of her problems following her allegation of an incident of gang rape in 1995. She displayed ideas of sexual fantasy. She was diagnosed as becoming sexually disinhibited in the middle of the night. She told of threats from unknown people to kill her. She spoke of recently being threatened by a male with a knife and reported having heard the voice of an Asian man in her head telling her to kill herself. The records tell of her spending time with other patients at the Centre and being disgusted with a sexual remark made to her by one of them as a result of which she asked him to stay away from her. She is recorded as saying that if he did not stay away she would bash his head in. One Lorri Russell became the complainant's case manager from 1 November 1996 until her final discharge from the Bendigo Psychiatric Centre in 1997. According to the evidence of the complainant she and Russell saw one another both professionally and socially and "the two of us became pretty good friends". In early 1997 the complainant was pregnant and asked Russell to become the godmother of her forthcoming child. At about that time the complainant displayed increased levels of disturbance after her parents had been reunited following a separation. She said that she was angry because they had been inappropriately intimate in front of her. On 12 March 1997 at the Centre she gave birth to a son, after which she engaged in severely delusional behaviour. This included her writing by hand several pages headed "Diary" dated 22, 25 and 27 April and 18 and 19 May 1997 expressing obviously delusional thoughts about herself and her baby, and expressing also nonsensical antipathy towards at least one psychiatric nurse - not the applicant. These pages were included as part of the records, but the complainant denied in cross-examination that she had kept a diary in 1997.

57. The first time that the complainant made any complaint about the applicant's sexual conduct towards her was on 23 July 1997, when she made a statement to police. On this occasion she mentioned only the incidents constituting counts 1-4. She made a further statement to police on 20 May 1998, in which she mentioned the two incidents constituting counts 5-8.

The complainant's account of the offences alleged against the applicant

61. The complainant swore that on an occasion shortly after Mother's Day in 1994, on a Tuesday, the applicant visited her at home by appointment. She was alone. She said that while she was getting him a drink he "basically knocked me to the floor" causing her to hit her head. She said "I think he just grabbed me by the shoulders and pushed me to the floor". She then described his pulling down her tracksuit pants and her underpants and inserting his penis into her vagina. She said that she was repeatedly calling out "No" and crying and trying to push him off and knee him in the groin but he held her hands. This incident was the basis for counts 1 and 2. As she swore, she believed that at about the time of the incident she was taking three or four haloperidol tablets in the morning and one at night, which exceeded her previously prescribed dosage. This drug made her feel slow and lethargic. She swore that she assumed it was the applicant who had been responsible for the increase in dosage because he had told her that "I wasn't doing very well, and if I didn't have more medication I would have to go back to the Psychiatric Centre." The complainant swore that, after having intercourse with her without her consent, the applicant "wanted to organise an appointment for next week", and told her that "if I told anybody he would make sure that I would be put in the psych centre for a long time and that nobody would believe me anyway because of the things what had happened in the past".

64. An appointment was made for the following week and, as the complainant swore, before that appointment was due, the applicant called again at the house at a time when her mother was at home and apologised about "the fight we had ... and that he hoped everything was fine and he would see me when we had our appointment". The complainant's mother, who was called as a Crown witness, gave no evidence of any such visit or conversation. According to the complainant's evidence the appointment was kept the following week at the house, about a week after the first incident. She swore that on that occasion she was alone; she sat on the couch and spoke to the applicant for some time; that, standing, he pushed her backwards on the couch so that she was lying on her back; he again pulled down her pants and his own pants and placed his penis in her vagina; she struggled a bit but, because of his earlier threat about being admitted to the psychiatric centre, she could not do anything about it. She swore that he used a condom on this occasion, which was the basis for counts 3 and 4.

67. The complainant obtained her driver's licence on 31 July 1994. She swore that a couple of weeks before that date she attended the applicant's Castlemaine office for an appointment; that she felt "pretty safe there" because there were others around; and that after the consultation the applicant offered her a lift home to Newstead. It was late afternoon or early evening. She swore that, instead of driving to Newstead, the applicant turned off towards Walmer, about 10 kilometres from Castlemaine, into an isolated bush area. She said she started to panic and thought that she tried to pull the steering wheel or handbrake. He told her that she would get them both killed and told her to get into the back seat of the car. She replied that she did not want to, and was going to run off. He told her that he would leave her there, so she went into the back seat, removed one boot and pulled her jeans down "because I knew what was coming". She described, in detail that I need not traverse, a further act of intercourse, unwanted on her part, for which the applicant was said to have used a condom. This provided the basis for counts 5 and 6.

70. Counts 7 and 8 were founded on conduct that, as the complainant swore, occurred a couple of days before 14 October 1994, her sister's birthday. The complainant described attending the applicant at his Castlemaine office and spending about half an hour there. Again he offered to drive her home and, as she swore, "I'd had no problems with him for about a month or so, I wasn't feeling that worried or stressed out by him, so I agreed to have a ride home with him". She swore that he diverted on the way home to "the same spot in the bush" as on the previous occasion. She got out of the car but he forced her to re-enter and again forced her to have sexual intercourse. This formed the basis for counts 7 and 8. Shortly after this alleged incident the complainant moved, in November 1994, to Bendigo.

74. The applicant's evidence may be summarised shortly as follows. He became a registered psychiatric nurse in 1972 and in 1994 held the position of Registered Psychiatric Nurse Level 3. He was then case manager for about thirty clients, including the complainant whom he first saw on 10 March 1994. His main role in her case was to provide on-going care for her psychiatric condition, including counselling and supervision. He was required to complete a daily contact sheet to record all contact with each client, and entries were repeated in an individual client's file. He saw the complainant both at her home and at his Castlemaine office, and never without an appointment. He did not have power to prescribe medication or to certify a patient. He never instructed the complainant to take a higher dose of medication than that prescribed by her consultant psychiatrist. By reference to the complainant's psychiatric records the applicant said that he had seen the complainant four times in May 1994 - on the 3rd, 9th, 12th and 27th of that month. The first of those visits was at the complainant's home with a student nurse. The other three were at the Castlemaine Health Centre, Dr Sethi being also present on 9 May. The applicant admitted that he did drive the complainant home on one occasion, having seen her in his office, when she had no means of getting home and he had another appointment to keep in the vicinity of her house. He could not remember when this was. The car he was in the habit of using was supplied by the Department of Health. It was available not for his personal use but only for use in connection with his employment; and it was garaged at the Castlemaine Health Centre every night. He denied that he had ever been in the bush area depicted in photographs, not proved but tendered by consent in evidence, which the complainant had sworn depicted the area in which he twice raped her. The applicant denied raping her or ever having consensual intercourse with her.

77. After the close of evidence the jury asked how many visits to the complainant's home in April to June 1994 were recorded in her file. The learned trial judge obtained agreement from both counsel that the question might be answered by reference to the records. There seems to have been a little confusion in the answer given, and I would not be confident that the jury completely understood it. The judge began by saying that "There is already in evidence the fact that there were three visits to the home in May on namely the 9th, 12th, the 3rd and - the 9th May, I think, yes - and a visit at the office on the 12th May". Prompted by counsel for the applicant, his Honour corrected himself to say -

"No, the 9th May was a different matter, she was seen by the consultant psychiatrist on the 9th May. So there was a home visit on the 3rd May recorded and an attendance at the office on the 12th May recorded. So far as April is concerned, the file contains notes made by Mr Pearce relating to visits to see [the complainant] on the 13th April, 20th April, 27th April and 28th ... The evidence in relation to June was that he saw ... her on one occasion in June and had one phone contact with her. I am not sure whether that evidence indicated that he saw her at her home or at his office. Just a moment. Well, as I say, I am not quite sure what the evidence was about that and if you are concerned about that aspect of the matter I will chase that up subsequently and clarify it for you."

In fact, no further clarification was offered or sought. It would appear that the learned judge did not really answer the jury's question, which was framed in these terms -

"One of the members of the jury have requested information as to how many visits are actually recorded to [the complainant's] home in those months April to June, what is actually recorded in the file?"

His Honour's response to the question appears to have conflated some oral evidence and the evidence of what was disclosed in the records. The fact is that, for the all-important month of May 1994, the records disclose only one home visit by the applicant, that on 3 May - a Tuesday before and not after, Mother's Day, which was the second Sunday in May. Moreover, and very importantly, the home visit on 3 May was the last home visit disclosed in the records. I shall return to this point anon.

85. The complainant was permitted to give evidence of uncharged acts that she described as rape by the applicant. It is now contended on his behalf that the evidence should not have been received and that, in any event, the judge's direction to the jury as to how it might be used by them was faulty. The gist of this evidence was that, between the commission of the second charged incident in May 1994 (counts 3 and 4) and the commission of the third in July (counts 5 and 6), at times she could not otherwise specify, the applicant vaginally raped the complainant with his penis. She swore that she thought it was at her mother's house, mainly on Tuesdays when no one else was home, "probably once or twice a month"; and that "every now and then" the applicant would repeat the threat about re-admitting her to the psychiatric centre, but he did not say so every time he had intercourse with her. She did not keep up appointments regularly with him because, as she said, she did not want to see him.

88. One of the features of the complainant's evidence of uncharged acts was its quality of imprecision. The evidence was so unspecific as to give very little indication of the number or frequency of the incidents to which it referred. Moreover, the evidence was extracted from the complainant in chief by means of a series of leading questions. The reason advanced by the prosecutor in his final address for the applicant's not being charged with the uncharged acts was, in effect, that the complainant could not specify occasion or date for them. There was in fact, so far as I can see, no reason why representative counts could not have been charged based on this evidence. However all that may be, there is a difficulty in upholding now a complaint about the reception of the evidence of uncharged acts: it appears that, as the prosecutor told the judge at the outset of the trial, without dissent from defence counsel, the latter had agreed to its being led. Moreover, defence counsel made no objection to it when it was led, scarcely cross-examined the complainant about it, asked the applicant in chief nothing specific about it and made no submission about it in his final address. The evidence was no doubt very prejudicial to the applicant and it is difficult now to see why defence counsel did not resist it. It may very well be that the judge, had he asked to rule on the admissibility of the evidence, might have excluded it if apprised (by voir dire or otherwise) of its quality. His Honour was not asked to explain to the jury, at the time the evidence of uncharged sexual acts was given by the complainant, the limited manner in which it might be used; and he did not then do so of his own motion. The judge did, however, as he was ineluctably obliged to do, direct the jury upon the matter in his charge. His Honour said -

"Generally speaking that evidence would be excluded because it is got nothing to do in one sense with any of these four charges. You have got to concentrate on the four occasions which are the subject of the charges here. However, there is an exception to that rule which enables evidence of that kind to be given. There are two reasons for allowing such evidence to be given. The first reason is that if you accept that there was sexual activity between the two of them, that you could then conclude that there had been a sexual relationship between, and if you were satisfied that there was such a relationship you may assist that in determining whether you accept the allegations about the four specific occasions in the sense that if you are satisfied that (A) and (B) quite regularly had sexual intercourse with each other, and there was a question as to whether it happened on a particular day, they can use the fact that they generally did it, making it perhaps more likely that it happened that day, but it may not - it depends upon all the circumstances. So that is one reason why he goes there. The second reason for the exception is that it enables the evidence relating to the alleged offence, of offences - the four of them here - to be placed in a more complete and realistic context. You may, if you accept that evidence appreciate the significance of what may otherwise seem merely to be isolated acts occurring without any apparent reason. So it is for those reasons that that evidence is permitted to be given. You must understand that although that evidence maybe placed before you, it is admissible for the two limited purposes which I have just explained and only for those purposes. In the long run you must be satisfied beyond reasonable doubt of the guilt of the accused of the actual charges before you may convict him. You cannot substitute evidence of some other incident, or some other relationship for the evidence or of a particular charged incident. Above all you must be careful and precise in your processes of reasoning. You may use the evidence of uncharged acts in considering the relationship of the parties, and thus the probability or improbability of the charged acts having occurred. But it would be wrong, it would be prejudicial and it would be contrary to law for you to reason that because the accused man had engaged in some improper conduct or in some other crime or crimes, he was the kind of person who was likely to have committed the crimes charges, and to use such a conclusion as evidence that he had committed them or any of them." (My emphasis.)

92. The propriety of that direction was seriously challenged in this Court. It was submitted for the applicant that this was a case neither requiring proof of a sexual relationship nor one in which evidence of uncharged acts could properly be used in order to enable the charged acts of intercourse to be seen "in a more complete and realistic context". These submissions were germane chiefly to the matter of admissibility of the evidence. In the circumstances, the evidence having been led without objection, the judge had no choice but to direct the jury upon the use to which it could be put.

95. It was further submitted that there was error in the substance of the direction. In my opinion this criticism is justified. It is to be remembered that evidence of uncharged sexual acts of a criminal character is to be used by a jury in a case like this -

"... only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting." : R. v. Vonarx (unreported, C.A. (Vic.) 15 November 1995, at 12).

It will be noted that, so stated, the purpose to which evidence of uncharged criminal acts of the accused may be put is a single limited one: there are not two purposes. The purpose is limited to establishing or revealing a particular relationship between the accused and the victim of an offence charged. In cases charging sexual misconduct the relationship is that which is sometimes described as one improperly resulting from a guilty passion. The general principle, however, is not confined to cases of sexual misconduct. Thus, for example, the principle may be invoked to reveal the relationship, if it is relevant, between a murdered man and his assailant. McHugh, J. reviewed some of the authorities in Harriman v. The Queen [1989] HCA 50; (1989) 167 C.L.R. 590, at 630-1, where his Honour's preferred classification of evidence of relationship of this kind was, ordinarily, circumstantial evidence. Callinan, J. in Gipp v. The Queen (1998) 194 C.L.R. 106, at 168, after a review of some authorities, declined to accept -

"... that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide 'part of the essential background' against which other evidence is to be evaluated. I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such."

The judgment of Callinan, J. in Gipp was but one of three of the justices in the majority in that case, the ratio decidendi of which is not, if I may respectfully say so, perspicuously clear. The passage I have quoted from the judgment of Callinan, J. does not, however, appear to me to be inconsistent with any of the other judgments in the case, and in particular I do not understand it to be at odds with the judgment of Deane, J. in B v. The Queen [1992] HCA 68; (1992) 175 C.L.R. 599, at 610, that evidence of uncharged acts can be used by the jury as the key to an assessment of the relationship between accused and victim and, as such, constitute "part of the essential background" against which the other evidence is to be evaluated. I refer also to R. v. Grech [1997] 2 V.R. 609, at 614, per Callaway, J.A., and to the recent unreported decision of this Court in R. v. FJB [1999] VSCA 90 (26 May 1999) in which Charles, J.A. (with whom Winneke, P. and Buchanan, J.A. agreed), indicated that evidence of uncharged conduct, could be used by the jury only -

"... if they were satisfied that it occurred and (if the evidence was not regarded as part of the res gestae) only for the purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated in a realistic contextual setting."

103. The direction to the jury in the present case with respect to evidence of uncharged acts was, I fear, apt to indicate to them that they had a choice between two purposes for which they could use evidence of that kind: either to prove a sexual relationship or to place the evidence of the charged offences "in a more complete and realistic context". This was in my respectful opinion a misdirection. It was tantamount to an invitation to the jury simply to reason that, if they accepted the complainant's assertion that she was raped by the applicant on an occasion or occasions after the second alleged incident in May 1994, and before the first of the alleged incidents in the car, they might treat her evidence with respect to all or any of the charged acts as more readily acceptable. In other words, the direction was capable of being understood by the jury to mean that, without considering whether the evidence revealed a sexual relationship, they could use the complainant's evidence of uncharged acts to bolster her evidence relating to the counts charged. Having regard also to the very generalised nature of the evidence of the uncharged acts, there was an acute danger that the jury would impermissibly reason that mere acceptance of the complainant's evidence of uncharged acts would afford more reason to accept her evidence with respect to the charged acts.

106. The direction contained further deficiencies. His Honour indicated that "if you accept that there was sexual activity between the two of them, ... you could then conclude that there had been a sexual relationship ...". Was that direction to be understood as meaning that a sexual relationship could be inferred from an acceptance of evidence referring to any of the uncharged acts and, if so, which? By what standard were the jury to "accept that there was sexual activity"? It is by no means clear that the instruction was that their satisfaction beyond reasonable doubt was required, and yet such an instruction was surely appropriate: cf. Gipp, at 155, per Kirby,J. Again, the example referring to "(A) and (B) quite regularly" having sexual intercourse with each other was, I should think, apt to confuse, for it is not at all clear that it is apposite to "quite regular" rape. If the jury were confused by the direction as to the "first reason" for allowing evidence of uncharged acts to be given (and even if they were not) they might very well have turned to the "second reason" and applied the evidence of uncharged acts merely for the purpose of giving a context to the evidence of the charged acts.

109. The questions whether, in the circumstances, the evidence of uncharged acts carried any probative value at all and, if so, whether the probative value outweighed its prejudicial value, were questions the learned judge was not invited to consider. Given that the evidence of uncharged acts was received, albeit without the learned judge's passing on its probative quality, the jury ought to have been concerned to identify the alleged offences on which that evidence might bear, and how: cf. S v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266, at 279-80, per Toohey, J. The evidence of the uncharged acts referred to conduct after the conduct that was the subject of counts 1-4 on the presentment and before that which was the subject of counts 5-8. As Hunt, C.J. at C.L. pointed out in R. v. Beserick (1993) 30 N.S.W.L.R. 510, at 522 when referring to evidence of uncharged acts of sexual activity by an accused -

"The more remote the other sexual activity is, the less will be its weight; and in general (as a matter of common sense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded by previous sexual activity." (Original emphasis.) See also p.523.

In order to assist the jury in the application to their deliberations of the evidence of uncharged acts, this distinction might usefully have been pointed out to them. It is, however, unnecessary to consider whether the failure to point it out constituted a serious deficiency in the charge.

114. The evidence adduced in this case of uncharged acts was obviously seriously prejudicial to the accused. In the circumstances it is unfortunate that the evidence was received without the benefit both to counsel, and indeed to the trial judge, of debate at the trial, and if necessary the preparation and delivery of a ruling by his Honour upon the exact use to which the evidence might be put. There are, as Callinan, J. observed in Gipp, at 166, obvious dangers in admitting evidence of an accused's criminal conduct not the subject of specific charges. Evidence of that kind has in recent years produced a number of practical problems and it continues to occupy, I venture to say, a ticklish area of the criminal law. The potential difficulties, as well as the dangers, should always be the subject of anxious consideration before it is admitted. In the unreported decision of the Queensland Court of Appeal in R. v. Schneider (20 October 1998) Pincus, J.A. expressed the opinion that -

"... juries should ordinarily be told, by way of direction, where evidence of uncharged instances of sexual contact between the complainant and the accused is let in, that its relevance is to show the existence of a sexual passion or relationship. I have thought it desirable to add this because the variety of suggestions as to the basis of admission to be found in Gipp may, with respect, create some practical difficulty for judges who have the task of directing juries on the point."

So too, in this State it should be accepted, unless and until the High Court decides otherwise, that the only purpose (there being no more than one) for which evidence of uncharged criminal sexual acts by an accused may be used by a jury is that expressed in the passage in Vonarx that I have quoted above. In the present climate it may be desirable that, ordinarily, as a matter of practice, no evidence of uncharged acts should be led before it is established at the trial that it should not be excluded as a matter of the judge's discretion and, if it is to be admitted, its exact bearing on the charged acts, and on the evidence of them, is agreed or decided.

119. It will be evident that I consider the trial to have miscarried, if for no other reason, because of the manner in which the jury were directed as to the evidence of uncharged acts. At the least a new trial ought to be had. Having regard, however, to some of the other matters argued by way of impugning the verdicts, I feel obliged to consider whether, in the circumstances, it would be appropriate to order a new trial.

122. The trial was plainly an unsatisfactory one in several respects. Trenchant criticism on behalf of the applicant was levelled in this court at the presentation and conduct of the defence case, and I have already mentioned some aspects of it that are difficult to understand. Putting aside the question of uncharged acts, there were some puzzling omissions from defence counsel's cross-examination of the complainant and from his examination in chief of the applicant. For example, although it was always the applicant's contention that he had never had sexual intercourse with the complainant, whether consensual or non-consensual, defence counsel did not put that to the complainant : he merely put it to her that the applicant did not rape her. This omission was seized on by the prosecutor in his final address as ground for a contention to the jury that the applicant's denial of any sexual intercourse with the complainant was a recent invention. Again, there was complaint in this court that the cross-examination of the complainant failed to explore a number of inconsistencies in her evidence in chief and of her conduct, including that towards the applicant, after the alleged commission by him of sexual improprieties against her. There was further complaint that defence counsel did not object to impermissible questioning by the prosecutor by way, for example, of leading questions of the complainant, and to other unfair conduct towards the applicant. I shall not elaborate on the extensive criticisms that were made of defence counsel for, as will appear, I do not find it necessary in deciding the case to adjudicate on the criticisms. I am glad that it is so, for it would be an invidious task, and might conduce to unfairness in the absence of some opportunity given to the object of the criticism to respond to it. I shall merely say that the applicant's representative at the trial appears to have been an employee of Legal Aid Victoria, and that he may well (to judge by the transcript) have been hampered by a want of forensic experience and limited instructions or preparation for the trial.

125. It is, I think, unproductive in the circumstances to spend time assigning or apportioning blame for what I take to be some shortcomings in the trial of a serious kind. They are shortcomings that lead me to a conclusion that, having regard to the whole of the material upon which the trial was conducted, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The reason for my deliberate use of the expression "the whole of the material upon which the trial was conducted", rather than "the whole of the evidence" (cf M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 493) will, I hope, already have been made apparent. It was in my view an egregious and cardinal defect of the trial that the psychiatric records referable to the complainant were not tendered in evidence. These records included diagnostic notes and observations by the several psychiatrists and nursing staff who had had the care of the complainant, and included contemporaneous and revealing historical accounts handwritten by the applicant. These records were, as we were told without objection or contradiction, tendered at the committal proceedings and formed part of the depositions. The material was called for at the trial by the defence and was produced by the Crown. It was freely referred to and cited by both counsel and by the judge, and was treated as though it was, in fact an exhibit. There were called as Crown witnesses at the trial two only of the staff associated with the facilities at Bendigo and Castlemaine which served the complainant and to which the applicant was attached. These were Mr R.P.Wilson, the Programme Manager, who gave evidence of the applicant's responsibilities as a psychiatric nurse and deposed in particular to what was required of him in keeping records of his daily round of consultations and contacts with the patients for whom he had responsibility. Mr Wilson was asked in cross-examination, in some little detail, to identify, examine and explain what he acknowledged to be "the medical records" of the complainant. The other Crown witness who was concerned with the records was a psychiatrist, Dr Chakrabarti, who deposed to the complainant's mental condition of bipolar defective disorder when he became concerned with her management in December 1996. The witness was asked in cross-examination to refer to the records, with which he said he was familiar, and to explain by reference to them the complainant's progress as a psychiatric patient from the time of her admission involuntarily in 1994, and onwards. The learned trial judge himself expressed the view that, by virtue of the Evidence Act, the records were evidence of their content. Counsel on either side fairly plainly adopted a similar view, as is demonstrated by their use of the records at the trial.

128. Defence counsel invited the applicant, during his examination in chief, to refer to his own notes in the records with a view to assisting him recall the level of the complainant's medication and other aspects of her management. Rather surprisingly the prosecutor objected to the procedure on the footing that the notes, to the extent that the applicant had made them, were self-serving. The objection did not survive for, as I have indicated, the learned judge had earlier taken the view, no doubt correctly, that the records were evidence of their content; and generally they were properly so treated throughout the trial. There was evidence from Mr Wilson that staff were required to be assiduous in keeping records of all contacts with clients, on the basis of which government funding was assessed; and that policy in 1994 was to conduct random audits of files. There was no reason to suppose that the records were not reliable.

131. The records were eloquent of the complainant's psychotic condition during the period over which the applicant's alleged offences and the uncharged acts were said to have occurred, and for some years before and beyond. The records showed three particular circumstances that might especially have borne on the likely validity of the complainant's allegations against the applicant. The first, as I have noted, was that the last visit by the applicant to the complainant's house at Newstead, as shown by the records, was on 3 May 1994. The significance of that was, no doubt, that the records were inconsistent with any visit by the applicant to the house at the time of either of the alleged offences in May 1994, the first of which the complainant, it seems, ultimately conceded to have been perpetrated after Mother's Day, the second Sunday in May. The applicant might, of course, simply have neglected to note any visit to the Newstead house in the course of which he misbehaved towards the complainant; but it was not plainly put to him, or suggested to anyone who might usefully have commented on the matter, that that was likely. The second was that before, during and for long after the period spanning the offences alleged against the applicant, he was obviously offering to her, and she was obviously taking from him without demur, the psychiatric services that it was his responsibility to provide. The records must cast doubt on the complainant's asseveration, in the course of her cross-examination, that she did not keep all her appointments with the applicant because she "did not want to see him": the records tend to show that, on the contrary, after May 1994 she kept many of her appointments with him, and continued routinely to make more. Associated with that is the complainant's explanation to the effect that she was disposed to submit to continued abuse by the applicant for fear that, unless she did, he would send her back to the Psychiatric Centre, which she disliked. The third circumstance that is thrown into relief by the records is the absence of any kind of complaint about the applicant's conduct by the complainant to third persons for a period exceeding three years after the first charged incident of rape. Her principal excuse for not doing so seems, again, to be that she feared that if she reported the applicant he would arrange for her to be returned to the Centre; and perhaps she entertained an expectation that she would not be believed. It is obvious enough that the complainant had ample opportunity to make telling complaint of his conduct. These excuses are patently feeble. The records show that she had a wide variety of professional people - quite apart from any non-professionals - to whom to complain about the applicant from November 1994, when Kay Symes became her case manager, until April, 1995. Then, in April 1995, the applicant again became the complainant's case manager. So far as appears, he maintained that role until January 1996, without apparent demur from the complainant. When, in October 1996, Lorri Russell replaced him and became so much of a friend as to be recruited as a potential godmother, the complainant still made no complaint to her about the applicant. She consulted her general practitioner, Dr Luscombe eight times in 1994 to 1996, and was regularly seeing consulting psychiatrists, none of whom could reasonably be expected to have ignored a complaint from her about the applicant. Plainly, the applicant had at no time authority to order or arrange for her return to the Centre; and it is in any event fanciful to suppose that he could have done so after November 1994 when he ceased to be her case manager. There appears to have been no explanation of the circumstances, if there were any, in which the complainant was moved ultimately to make her complaints about him.

134. For the respondent it was observed that allegations of rape and other sexual abuse will often, by reason of their very nature, be uncorroborated. It was said to follow that if a court were to view psychiatric patients as an unreliable class of witness, and were to conclude that a verdict was unsafe or unsatisfactory because of some sort of inherent unreliability in their evidence, convictions for sexual offences would effectively be impossible to obtain where the complainant was a psychiatric patient and uncorroborated. All of that may be readily accepted, and my decision in this case should not be seen as depending on any notion of the complainant's inherent unreliability on account of her psychiatric condition. There is much more to it than that. It is worth noting, in any event, that no effort seems to have been made to discover the complainant's mental state at the time of the trial. No present estimate can be made of her reliability as a witness at the trial by reference to her psychiatric condition at that time, for there was, so far as I can see, no medical or other evidence touching upon it. So far as appears, the medical records produced at the trial did not extend beyond 1997. Of course, the complainant's admitted psychotic condition throughout the period over which the applicant's alleged offences occurred cannot be overlooked: indeed, her impaired mental functioning was an ingredient of the crimes charged as counts 2, 4, 6 and 8. The evidence as a whole, however, regarded in the light of the defects of the trial, did not in my opinion entitle to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

137. I refer again to the records. They reveal on their face two features of importance in the context of the trial, which would, I think, immediately present themselves to any interested and reasonably intelligent reader. The first is an apparently normal professional, caring relationship between the complainant and the applicant and others who were at relevant times responsible for her psychiatric care and management. The relationship existed before, during and after the time of the applicant's alleged criminal conduct. The second feature is a pattern of the complainant's disturbed and erratic conduct, manifesting obsessional sexual ideation and accounts of sexual assault. The records were, it seems, not relied on in proof of the Crown case. Defence counsel however, who had called for their production, did apparently rely on them and was entitled to have them treated as evidence of their content. Unaccountably, he did not tender them and the judge did not require their tender, as undoubtedly he should have done. The significance of the failure to tender the records was demonstrated by the jury's question to which I have already referred in [22] above. By their question the jury, or at least one of their number, showed an understandable interest in an important matter as to the actual content of the records, a reference to which could and should have given a conclusive answer of obvious significance. Instead of a conclusive answer the jury, most unfortunately, received a response that was at best incomplete and at least potentially misleading. The jury were of course entitled to know, and it was vital in the interests of the applicant that they should have known, what the records showed his home visits to have been in April, May and June. In fact, the records showed that there had been no home visit at all after 3 May 1994, whereas the Crown case was that there had actually been many, and at least two on which charged offences had allegedly been committed. Of course the records could not prove that the applicant had not been to the complainant's home at Newstead after 3 May, but the jury, having disclosed an interest in the matter, should at least have been told what the records said about it. They should, indeed, have been allowed to peruse the records. The jury should, moreover, have been told that they were entitled to treat the records as evidence of their content, but they were not so told.

140. Reference by the jury to the records, which they should have been at liberty to make in the course of their deliberations - and it will be recalled that they deliberated upon their verdicts for nearly two days - would have enabled them to consider, in the context of the recorded narrative, a number of other features of the complainant's evidence and conduct that should, in my opinion, have left them with a reasonable doubt of the applicant's guilt. These included her admittedly false accusation against her father of sexual abuse; her obvious persecutory delusions and other delusional thoughts about sexual and other matters, as evidenced by bizarre statements as recorded, including those in the diary entries of five pages in her own hand; her failure until July 1997 to complain to anyone of, or even to remark to anyone upon, the applicant's conduct towards her in 1994; her failure to refer in her 1997 complaint to the alleged rapes in July and October 1994 or to complain of them until August 1998; her continuing acceptance of the applicant as her case manager, and her attendance upon him in that capacity until November 1994, after his alleged sexual violation of her twice in May, once in July and once in October 1994, as well as on various other unspecified occasions in May, June or July; and her acceptance of his re-appointment as her case manager in April 1995, after her return to Newstead from Bendigo, and her continuing to consult him as such until January 1996. This is not a complete catalogue of the inconsistencies and other shortcomings in the Crown case on which the applicant relied in this court, but it is sufficient for present purposes.

143. The jury of course had the benefit of seeing and hearing all the witnesses give their evidence; and the learned judge gave an appropriate warning of the danger of acting on the complainant's uncorroborated evidence. One must pay full regard to those matters and to the further consideration that the jury, and no other tribunal, has the primary responsibility of determining guilt or innocence. The evidence of the applicant appears, upon a reading of it, to have been untarnished by cross-examination, but it is no doubt to be assumed that the jury disbelieved him and believed the complainant. That assumption, however, is to be made on the footing that the jury were deprived of the benefit, which they ought to have had, and which this court has had, of perusing the records as part of the material on which the determination of guilt or innocence properly fell to be made. In the circumstances, there having been no corroboration of the complainant's allegations, it would in my opinion be wrong to conclude that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. I am fortified in that conclusion by the report of the learned judge to this court, in which he said that he was very surprised by the verdict, even though he found the complainant to be a compelling witness and the applicant an unimpressive witness. It is to be recalled, too, that the verdict was not unanimous.

146. It would in my view be unsafe and unsatisfactory to allow the verdicts to stand. I would therefore grant leave to appeal, direct that the appeal be treated as instituted and heard instanter and allowed, and order that the verdicts be quashed and that judgments and verdicts of acquittal be entered.

151. I agree that the application for leave to appeal against conviction should be granted for the reasons stated by Tadgell, J.A. and I agree with the orders his Honour proposes.