R v Pidoto [2009] VSCA 166

1 The applicant was, on 18 July 2007, found guilty by a jury in the County Court on one count of buggery (count 8), one of rape by anal penetration (count 19), three of indecent assault on a male person under the age of 16 years (counts 5, 6 and 7), four of indecent assault (counts 11, 16, 20 and 22), one of committing an act of gross indecency (count 15), and one of assault occasioning actual bodily harm (count 10).[1] The charges involved four young males to whom we will refer as J, D, C and S.

2 He now seeks leave to appeal against his conviction on each count on the grounds that:

1. He suffered a procedural unfairness insofar as he was unfairly embarrassed by the impossibility of defending the allegations by J of offences that could not have occurred at the time that the complainant alleged.
2. His Honour Judge Howie erred in not discharging the jury in respect of counts 6, 7 and 8 after evidence was led that the offences alleged by J occurred in 1973 but that the Corpus Christi Seminary closed at the beginning of 1973.
3. Having regard to the evidence on Counts 6, 7 and 8 His Honour Judge Howie erred in directing the jury that it was not fatal to the prosecution case if the date (in the presentment) is incorrect.
4. His Honour Judge Howie erred in not ordering that the trial of all the counts on the presentment be permanently stayed.
5. The failure of the prosecution to make an adequate and timely disclosure of the mental state, diagnosis and treatment of the complainant S occasioned a miscarriage of justice.
6. Her Honour Judge Sexton erred in not ordering that:
   1. counts 6, 7 and 8 (relating to J) and/or
   2. counts 15, 16, 17, 18, 19, 20, 21 and 22 (relating to S)

1. His Honour Judge Howie erred in not ordering that:

a) counts 6, 7 and 8 (relating to J) and/or

b) counts 15, 16, 17, 18, 19, 20, 21 and 22 (relating to S)

be severed from the presentment herein.

1. His Honour Judge Howie erred in directing the jury in respect of each of the uncharged acts in that he did not instruct them that before they could use them in proof of guilt they must find them proven beyond reasonable doubt.
2. The convictions were unsafe and unsatisfactory.

3 At the hearing, application was made to amend the grounds by adding the following:

1. The failure of the prosecution to make an adequate and timely disclosure of the history of the complainant J occasioned a miscarriage of justice.

4 At the trial, the prosecutor asserted that the offences were committed when the applicant was a parish priest of the Roman Catholic Church and in three different time periods; against J, on a single occasion in 1972; against D and C in the late 1970s; and against S in about 1982, and later in about 1984 or 1985.

5 J was, at the relevant time, 13 years of age and from a family who were members of the parish at which the applicant was the assistant parish priest. The Crown alleged that the applicant befriended the boy and invited him to the presbytery on a number of occasions to talk and play music. One evening, with his parents' permission, and on the pretext of taking him to where 'they make priests', the applicant drove him to the Corpus Christi seminary at Glen Waverley. In a bedroom there, the boy was introduced to three young men, apparently seminarians, sitting on a bed in their underwear. Two others, similarly attired, came by. When J became apprehensive and uncomfortable in these circumstances and asked to be taken home, the applicant insisted that he should be shown around, and took him to the chapel, and then to the dining room where he grabbed J from behind, clutching at his penis (count 5). When J resisted, the applicant said something to the effect, 'Well, we're not going to go until we've done this.' After lowering the boy's trousers and underpants, he placed J's penis in his mouth, fondling it with his tongue (count 6). He then licked the boy's anus (count 7), and forcefully penetrated it with his penis, thrusting some seven or eight times (count 8). When he had finished, he said, 'Let's go', and they left the seminary. No further word was spoken between them as J was being driven home.

6 D also belonged to a Catholic family, that regularly attended their local church. On one occasion, in 1979, according to a witness, D, in the presence of local youth club members, referred to the applicant as a 'frigging faggot weirdo'. He was then struck a sharp blow to the solar plexus area from behind by the applicant (count 10).

7 C came from a family, associated the same parish as D. In the late 1970s, when he was 15 or 16 years of age, the applicant invited him into the presbytery, saying that he could assist him with his posture. Although C could not remember taking off the t-shirt and jeans that he was wearing, he recalled lying on the floor wearing only his underpants. The applicant, it was said, pulled them to his knees where, in response, C pulled them up again, the process was repeated. As the applicant attempted to pull them down a third time, C got up, dressed and left (count 11).

8 S gave evidence of three different episodes, two of which, he said, occurred between November 1982 and a family wedding, on 8 January 1983. He was 13 years of age at the time.

9 On the first occasion, the applicant drove him to a park where, inside the car, he masturbated in S's presence (count 15), and then masturbated him to ejaculation (count 16).

10 The second episode took place when the applicant had taken him for a drive in his car, in the course of which, he pulled off the highway on to a dirt track. The applicant committed sexual acts upon S, including the non consensual penetration of his anus with the applicant's penis (count 19), and the sucking of his toe (count 20).

11 The third episode occurred when S was 15 or 16, in 1984 or 1985. The evidence of his mother was that the applicant maintained contact with the family for three or four years, and regularly visited their home. On this occasion, it was said, he visited the family home, gave the boy a pair of Speedos, and, on the pretext of checking him in his bedroom, had him lie on the bed and touched him on the body in the area of his ribs and abdomen, his pubic area, and the base of his penis (count 22).

12 The applicant gave evidence in which he denied that he had engaged in any sexual offending whatever. He said that he had limited or no recollection at all of the various complainants and no memory of any of the specific occasions mentioned by them. He challenged aspects of the detail provided, asserting that their evidence could not be safely accepted as the conduct attributed to him was unlikely to have occurred at the times or in the locations claimed. He called other witnesses but much of their evidence was mainly concerned with the counts on which he was acquitted and need not be set out here.

13 Ground 1 was particularised in the applicant's Full Statement of Grounds as follows:

The combination of the extreme delay in prosecuting the offences, the imprecision on the time span alleged in the presentment and the evidence by the complainant as to the time of the occurrence of the offences unfairly prejudiced the applicant in his defence of the counts in which J was the complainant.

The combination of the age of each of the alleged offences, the medical condition of the applicant and the procedural unfairness in the counts constituted exceptional circumstances in which the trial should have been permanently stayed.

14 Over recent times, it has become quite common for complaints of sexual offending said to have occurred many years earlier to come before the courts. There are many reasons why this has happened, among them being an increased preparedness on the part of victims to come forward and an improved understanding within the community of the long term consequences of sexual abuse. That these matters are finally addressed, sometimes after years of extreme distress is very important. However it is obvious that cases which come before the courts long after the events are said to have occurred pose serious questions for a legal system that is largely based upon the notion that trials are to be conducted within a relatively short time after the events are said to have occurred. Recollections of dates, times and circumstances would in that situation, be relatively fresh and the evidence could be far more easily tested. In cases of the kind presently under consideration there is frequently a measure of uncertainty as to when the offending is alleged to have occurred and often difficulty for the defence to respond to a claim made many years later. Accordingly, the High Court has emphasised the need for trial judges to formulate directions to ensure that juries remain conscious of the particular issues that may arise in such matters and make clear to the jury the care that must be taken in consequence to avoid a miscarriage of justice.[2] It is for this reason that specific directions by the trial judge are ordinarily required, addressing the sources of possible forensic disadvantage, emphasising the risks presented in the particular circumstances and the burden and standard of proof. The judge gave appropriate directions on each of these matters.

15 In the present case, no request for greater particularisation of the counts involving J was sought by counsel at the trial and no complaint has been made in this Court concerning the correctness or adequacy of the judge's directions with respect to them. Although one of the matters relied upon in argument to support this ground was 'the medical condition' of the applicant, his state of health was raised at the outset of the trial and can be seen to have been appropriately addressed by his Honour. There has been nothing put before us that could reasonably justify any concern that the applicant's medical condition might have compromised the fairness of the trial. We will return to this aspect when dealing with ground 4. There was nothing inherently unfair or unreasonable in the conduct of the trial by reason of the passage of time or any procedural unfairness that has been brought to our attention or could be seen to be present in the circumstances.

17 These grounds are related and will be addressed together. In support of them, it was submitted:

The complainant said that the offences occurred in May of 1973 and placed the time of their occurrence by (inter alia) his arrival from Queensland, the delay in his visiting the Presbytery at Box Hill, his school year and his winter uniform. There was uncontested evidence that the Corpus Christi Seminary closed at the beginning of 1973. The prosecution then submitted that the complainant was mistaken as to the year the alleged offences occurred and that it must have been 1972. This had the effect of prejudicing the applicant's defence insofar as he had prepared his case to meet the allegations that the offences occurred in 1973. Evidence is available to rebut the suggestion that there was an opportunity to commit the offences at the seminary in 1972.

Having regard to the 18 month time span alleged in the counts and that the prosecution had not alleged any other date this direction [that an incorrect date was not fatal] was unnecessary and had the capacity to mislead the jury in their deliberations. This was not a case where, on the evidence, the prosecution could nominate a date or dates on which the offences were alleged to have occurred. The jury should have been directed that the prosecution had to prove the times set out in the particulars (such as they were) that were provided to the Applicant.

18 J was pressed by counsel for the applicant in cross-examination in relation to the precise period in which he claimed that the assault upon him at the seminary was perpetrated. The applicant denied that he had ever taken J there and drew support from J's evidence that the visit had been made in May 1973, when it was clear that the building had been taken over by Victoria Police and used as a training academy at the end of 1972.

19 It would undoubtedly have been apparent to all involved in the trial and from its outset that J's stated recollection as to the precise time frame at which the events may have occurred could not be accepted. The defence had earlier filed a Notice of Alibi with respect to the 1973 time frame, pointing out that no offence in the circumstances alleged could have been committed at that time.

20 In response, the prosecution argued that, whilst J's recollection of the period in which the offending occurred could be seen to be faulty, that could not be reasonably regarded as detracting from the reliability of his evidence as to what occurred and the identity of the perpetrator, bearing in mind that the jury had to be satisfied that the offence was committed within the period designated in the presentment.

21 As the trial judge pointed out, in the course of discussion with counsel, this was not a case in which, save to the extent we have just mentioned, the prosecution had to identify the precise dates or period upon which it relied. Obviously, there had to be sufficient specificity for the applicant to be able to meet and, if possible, answer the allegations made against him. Here, as we have mentioned, he simply denied that he had ever taken the boy to the seminary. If, as is claimed in the submission to this count, there was evidence available to rebut the suggestion that there was an opportunity to commit the offences there in 1972, as well as 1973, it is remarkable that no endeavour was made to adduce it in the trial. We should add that there has been nothing presented to this Court to support the claim. As we have already observed, there has been no complaint concerning the adequacy of the trial judge's directions in the present case on these aspects and none can be seen to be warranted.

23 The argument presented in support of this ground was outlined in the written submissions provided to the Court by his counsel:

Application was made to his Honour at the outset of the trial to stay all the counts on the presentment. His Honour refused that application. As the trial progressed it became apparent that the applicant could not receive a fair trial for the following reasons:

a) the age of each of the alleged offences,

b) the medical condition of the applicant,

c) the procedural unfairness in the counts relating to J and S,

d) the evidence of S's mental illness.

The trial judge should have stayed the presentment at the time when all these matters became apparent.

24 It was not contended that the judge's initial refusal to stay permanently the trial of the applicant was erroneous, but that, as it progressed, its unfairness became apparent to the extent that his Honour was required to intervene. Counsel submitted that his failure to do so resulted in a miscarriage of justice. We do not agree. The age of the matter and the state of the applicant's health were, of course, taken into account by the trial judge when considering whether the proceeding should be permanently or temporarily stayed or adjourned. Nothing emerged in the trial that cast any different light on those matters or could give rise to a reasonable apprehension that their significance had been underestimated when the decision was made or could be seen to be of greater importance as more information became available.

25 With respect to the applicant's physical condition, the judge pointed out, when the matter was discussed at the commencement of the trial, there was nothing in the evidence that suggested that he was incapable of giving instructions or hearing or understanding the evidence. His Honour made clear that, if the applicant began to experience difficulties by reason of an inability to maintain concentration, he would make the appropriate arrangements. The trial proceeded on that basis. We will return to the complaint that there was procedural unfairness in the counts relating to J and S and sufficient to state, in the present context, that they are without substance. The final matter, which relates to evidence of the mental state of S, whether considered separately or in combination with those discussed above, did not require that a stay, whether partial or permanent, be ordered. The issues concerning the mental state of S will be discussed under ground 5.

27 The complainant S, was at the time of the trial an involuntary patient in the acute psychiatric section of a public hospital. He was transported daily from there to the Court by the police informant. This information, counsel submitted, was important as the reliability of the evidence of S was central to the Crown case on those counts involving him. The failure to disclose the full circumstances under which his evidence was given, accordingly, resulted in a miscarriage of justice, he argued.[3]

28 That the defence were aware that S had received treatment for a psychiatric condition was beyond dispute as he had been subject to cross-examination regarding his mental state at the committal hearing. However, no attempt was made prior to trial to follow up this aspect by attempting to secure his medical records or history. At the trial, initially, the matter was not pursued by counsel for the applicant. This was hardly surprising as the first 'breakdown' of S had occurred when he was about 13 years of age and, it seems, was attributed by him to the applicant's conduct.

29 Later, however, in the context of other evidence and rulings being discussed, counsel sought to ask the informant about a further statement said to have been made by S to another police member. His Honour then said -

It does seem to me, [Counsel], that there are a number of matters that are relevant to the reliability of [S] as a witness and as a person who's given account of an alleged criminal offence committed on him_. One is his mental health._[4] I mean, my view is that that's a very relevant matter. The jury is being asked to consider offences that are said to have happened 20-odd years ago. Another is the fact that he has made all of these statements. There's been a process of statement-making and inconsistencies perhaps between them. I've not conducted any close analysis of them but it may be so.

Another matter is the one to which you've just referred me, that he appears to have reported a criminal offence - namely, an armed robbery involving himself - for which, in the valuation of Detective Sergeant Bock, there was no basis. They're all matters that significantly, I would have thought, affect his reliability, but they're not matters that have been raised with him. [the Prosecutor] will no doubt repeat his earlier advice to me that this is an adversarial procedure. What puzzles me is what you're proposing now as to how they be raised if they're to be raised. You say they're part of the investigation but there's steps that are taken in the course of an investigation. No doubt there are a great number of steps that are taken in an investigation but their relevance is directed solely, isn't it, to the reliability of [S] as a narrator of alleged events.

[COUNSEL FOR DEFENCE]: One of the problems obviously in cross-examining [S] is it leads right back to the lack of particularisation of the charges involving [S] in that [S] gave evidence-in-chief of only a small proportion of his allegations that are within those seven statements.

[HIS HONOUR]: That's right, and obviously you would be concerned to confine any further evidence that he gives, but as I've said before, that doesn't prevent you asking him expressly-worded questions either about his mental health or about the number of statements that he made and when he made them or about whether he had difficulty recollecting things and all of the issues that are related to his recollection and his need to make further statements or about this apparent reporting of something that on one view never happened, as indeed you ask him about going to a police station that on one view never existed. That's the dilemma as I see it. You persuade me that I'm wrong but - - -

[COUNSEL FOR DEFENCE]: One of his problems is his mental state precludes asking him about a variety of questions.

[HIS HONOUR]: Why does his mental state - he's a witness in a case.

[COUNSEL FOR DEFENCE]: He's a witness in a case but Your Honour can see from the number of statements and the responses within those statements that he's a witness that tends to blend occurrences.

30 After some discussion, the following exchange occurred -

[HIS HONOUR]: I'd be repeating what I said to you before I think, [Counsel]. I can see that these matters are relevant to the credit of the witness, [S], but for evidence about that to be led now, there would need to be a basis for it by these matters going to his credit being directed to him.

[COUNSEL FOR DEFENCE]: If Your Honour please. I seek that [S] be recalled in a limited capacity in relation to both the making of the statements and his mental state.

...

[COUNSEL FOR DEFENCE]: In my submission, the Crown isn't prejudiced. I am limiting the matters, and am quite willing to indicate what questions I would be asking of the witness. It's a situation that I wasn't aware that he was currently in a mental institution. In fact, I'm still not aware if he's currently in a mental institution. I was made aware that there were suicidal problems with [S], and I was concerned about that in asking him questions. The accused is concerned about that in asking questions. I didn't want to go into his mental state.

I was under the impression that his mental state would be obvious, so I simply asked the line of questions in relation to, 'You indicated yesterday you were using marijuana?---Yes.' 'Were you using other prescription drugs?---Yes, I was. It was after my nervous breakdown, so I'm sure they had me on some prescription medicine, but I don't know what it was.' Then I simply put, 'Do you say you've never had trouble distinguishing imagination from reality? That's not been an issue for you?' His simple answer was, 'No.'

I didn't want to push the matter any further. I really don't know what his mental state is, because I've been provided nothing from the Crown. I'm not sure if they're required to do so; they're probably not. But I have not been provided anything in relation to the fact that he is currently in a mental institution or his mental history. All I had to go on was the fact that there are six or seven statements that tend to gloss over reality. I don't want to go there. I thought I would be able to, through his mother, indicate that there's been a long history of either drug and marijuana problems or mental history, or through the officer who's taken a large number of statements from him either at her instigation or his.

I suppose I did take a decision not to challenge the alleged victim on his mental state but I'm now in a position that I seem to have no alternate but to do so, despite personal misgivings about doing that, not professional misgivings but personal misgivings because of concern for the witness, which perhaps I shouldn't have let restrain me. The accused would be prejudiced if that recalling were not allowed, Your Honour.

31 Although counsel appears to have appreciated that S was or may have been in a psychiatric hospital and probably because he considered 'S's mental state was obvious', he did not seek any clarification of the position or attempt to secure access to S's medical history, records or current situation.

32 His Honour then permitted S to be recalled. When further examined in-chief, he was asked -

[COUNSEL FOR DEFENCE]: You wrote another handwritten statement on 26 June this year. Is that right?---Yes.

You faxed that to Fiona Bock?---Yes.

Where were you when you sent that to her?---Austin Acute Psychiatric Unit.

What sort of unit is that?---It's a psychiatric unit.

Have you been there for a period of time?---Since 20 April.

Are you still there?---Yes.

[HIS HONOUR]: 20 April of what year?---This year.

[COUNSEL FOR DEFENCE]: Your mum said that you had a breakdown in April and May 1983. Do you agree with that?---Yes.

You were in hospital then?---Yes.

Have you been having treatment since that time, of one type or another?---Yes.

Has that been drug treatment or psychiatric treatment or both?

[HIS HONOUR]: When you say 'drug treatment', you mean treatment by medication?

[COUNSEL FOR DEFENCE]: Medication since that time?---Only for a short while after the nervous breakdown.

You've had other treatment in psychiatric hospitals?---Yes.

Is that because you have any problems distinguishing between fantasy and reality?---No.

You don't believe that you do?---No.

Do you have nightmares?---Yes.

Do you have problems working out if the nightmares are reality or something that's actually occurred?---No.

Do you have problems, part of your problems being that you have difficulty remembering things clearly?---No.

...

33 Had counsel for the applicant wished to pursue the matter, he clearly had ample opportunity to do so and from a very early stage. The fact that S was an involuntary patient was of itself of no or limited importance. That was, in effect, only a description of his status although it clearly raised questions about his capacity to give reliable evidence. What was important was that his mental state could be seen to cast doubt upon his reliability as a witness. The jury were well aware that he had significant ongoing mental health problems and the assumption can reasonably be made would have taken account of his mental state in their deliberations particularly when assessing whether or not they could act upon what he said.

35 An application was made before Judge Sexton, who presided at the directions hearing prior to trial, for the severance of the counts relating to J, D, and S. After hearing submissions, her Honour in a reserved ruling stated-

It is presumed that the sex offences counts on the presentment are triable together, (s.372(3AA) Crimes Act 1958). It is for the defence to rebut that presumption, R v. TJB [1998] 4 V.R. 621 at 630-631. The presumption is not rebutted merely because the evidence is not cross-admissible (s.372(3AB) Crimes Act 1958). All counts on the presentment are properly joined if they form part of a series of offences of a similar character (Sixth schedule of the Presentment Rules).

Although the onus rests on the accused to rebut the presumption of joinder of sexual offences, cross-admissibility is a powerful factor in determining such an application, although not conclusive, and it is for the prosecution to show, first, relevance and, secondly, cross-admissibility, if that be relied upon. Here the prosecution argues that evidence of all counts, both the sex offences and non sex offences, is relevant and cross-admissible. That is, evidence of one count and of one complainant may be led in proof of another count in respect of that, or another, complainant.

The purpose for which the evidence is sought to be admitted provides the basis for admission, as well as the directions later to be given to the jury. However, as this evidence is in the nature of propensity evidence, its admissibility is also to be determined by reference to s.398A of the Crimes Act. Propensity evidence is defined as evidence which is received, notwithstanding that it discloses the commission of offences other than those with which the accused is charged, or other discreditable conduct. (See R v. Best [1998] 4 VR 603.)

To be admissible, such evidence must first be relevant to the facts in issue but, even then, cannot be admitted unless it is just to do so despite its prejudicial effect (Section 398A(2)). The determining factor is to ensure the fair trial of the accused (R v. Papamitrou [2004] VSCA 12; (2004) 7 VR 375 at [27]. The likely issue between the accused and the prosecution in respect of each complainant is whether the events occurred as alleged. The purpose for which the evidence is sought to be admitted in this case is to make each of the alleged acts more probable. The probative value lies in the improbability of different witnesses fabricating similar lies. Pfennig v. R [1995] HCA 7; (1995) 182 CLR 461 at 482.

It is well settled that the material sought to be led does not need to display striking similarities with the other counts on the presentment where the identity of the perpetrator is not in issue, which is the case here. Factors to consider include the relationship said to exist between the accused and the complainants, the ages of the complainants at the time of the alleged offences, the general nature of the allegations, including any common features, the number of complainants, and whether there is any underlying unity, system or pattern.

In order to analyse these factors it is necessary to turn to the way the prosecution puts its case in respect of each complainant. I will do so in summary form, on the basis of all of the depositional material, which I have read.

36 Her Honour then turned to the prosecution case in respect of each complainant and the submissions advanced by counsel then appearing for the applicant. After a careful analysis of the relevant considerations and the evidence sought to be adduced, she concluded:

Because of the high degree of cogency of the cross-admissible evidence which I have found, I am satisfied that it would be just to admit the evidence of each complainant in the case against each other complainant, despite the prejudicial effect of such evidence. I am satisfied that with appropriate directions, to which I refer below, a fair trial can be ensured. It follows that the accused has not rebutted the presumption of joinder and that the presentment will not be severed.

Proposed directions.

It is highly likely, and in this case advisable, that directions will be required to guard against propensity reasoning between counts, between complainants, and as to uncharged acts. Suitable warnings should therefore be given. It may well be simpler to provide one strong propensity warning, combining that with a separate consideration direction and the direction as to uncharged acts, which combination should guard against the impermissible reasoning in respect of all of these aspects.

As to which uncharged acts would ultimately be led in evidence, that may well need to be revisited, bearing in mind that that was not canvassed in argument here, but I have expressed views herein as I have analysed the available material, and specific directions may be required, depending on the subject matter of such uncharged acts as are ultimately admitted, and the trial judge would necessarily be assisted by counsel's submissions in all of those respects.

That task will ultimately fall to the trial judge in the light of these reasons which I have given and the task of directing a jury will ultimately also be for the trial judge in the light of the evidence as it has unfolded and in conjunction with submissions made by trial counsel. (R v. DCC [2004] VCA 230 in respect of directions.)

37 The question was revisited at the commencement of the trial, with essentially the same arguments being advanced. Judge Howie ruled:

S.12 sub-s.2 of the Crimes (Criminal Trials) Act (1999) provides:

'Any ruling made by a judge at a directions hearing, who is not the trial judge, is binding on the trial judge unless, in the opinion of the trial judge, it would not be in the interests of justice for the ruling to be binding.'

It has, therefore, been necessary for me to read the transcript of the submissions by [Counsel for the applicant] and by [the Prosecutor] for the Crown, and to consider whether it would not be in the interests of justice for the ruling made by Her Honour Judge Sexton to be binding

If I may say so with respect Her Honour has made a comprehensive analysis of the relevant factual circumstances, and of the applicable law, and of the submissions made. Nothing further has been put to me. There is no basis upon which I am able to form an opinion that it would not be in the interests of justice for the ruling made by Her Honour Judge Sexton to be binding.

38 In this court, the arguments have been repeated with little variation.

39 The circumstances, under which the possibility of unfairness actually resulting from the refusal to sever falls to be considered, have altered in that the applicant has been acquitted on the counts involving three of the complainants. When the evidence relating to the various complainants and counts is analysed, it is apparent that the jury did deal with each complainant and each count separately and in accordance with the directions of law given to them by the judge. There is not only nothing that could be seen to suggest that the failure to sever may have resulted in a miscarriage of justice by reason of the prejudicial effect of a single trial, but rather that the decision was reasonable at the outset and, in the event, appropriate.

41 Counsel acknowledged that the trial judge gave careful directions as to what the prosecution was required to prove beyond reasonable doubt in respect of the elements of each charge, and the need to address each complainant and each count separately. However, he argued, when his Honour came to deal with the evidence of the various uncharged acts, he did not instruct them that insofar as they were used in proof of an element of a charged act, that they must be satisfied of the occurrence of the uncharged acts beyond reasonable doubt,[5] and thereby fell into error.

42 There was, of course, only one uncharged act claimed to have been perpetrated against any of the four complainants, an incident of massaging S in a garage. That evidence could hardly be seen to possess any importance in the context of the trial generally or the allegations with respect to S, in particular. The applicant was acquitted on the counts involving the other complainants, where there were several uncharged acts alleged.

43 The instructions on uncharged acts given by the trial judge were expressed in a form frequently employed prior to the judgments of the High Court in R v HML. By reason of the different approaches adopted by members of the Court in that case, this Court in R v Sadler[6] indicated that what might be described a very cautious approach to the directions to be given with respect to uncharged acts should be followed by trial judges in Victoria.

A judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.[7]

44 The Court made clear that it did not follow, however, that in every case where there was evidence of uncharged acts, an instruction had to be given that the commission of these acts had to be established beyond reasonable doubt.[8] Whether or not it was required was ultimately dependent upon the perception of a risk that the jury might, apply an inappropriate standard of proof to a matter of importance in their reasoning. The present case is not one, in our view, in which there is any realistic possibility that the jury might have reasoned that the commission of the charged acts was more likely because the applicant had demonstrated a guilty passion through his commission of the single uncharged act.

45 As a practical proposition this appears to have been accepted by counsel for the applicant in a further written submission provided at the request of the Court.

While it is to be noted that the applicant has not abandoned the proposition that the uncharged act (the massage incident in the garage) of which the complainant S gave evidence admits no other rational view other than that of a demonstration of guilty passion, it is the jury's use of the 'uncharged acts' (ie the evidence of the other complainants in respect of the counts relevant to the other counts on the presentment) that was a major plank of the case for the prosecution in the jury's separate consideration of each of the counts.

46 Counsel submitted, in this Court, that, although the jury was not satisfied beyond reasonable doubt of the guilt of the applicant on the counts involving other complainants, they may nevertheless have accepted the truth of their allegations on the balance of probabilities and then used the evidence in proof of the elements in the cases of the four remaining complainants. This scenario is, in our view, quite unrealistic in the circumstances. The jury were instructed correctly concerning the need to consider the case with regard to each complainant and count separately. There has been no challenge at this level. Their verdicts indicate that they were aware of their obligations in this regard, that they did not act on the basis of prejudice and, specifically, did not infer that because the applicant had been found by them to have offended against one individual, that they were entitled to conclude that he was guilty of offending against another. What evidence may have been used in the manner suggested by counsel, or how it could have impacted upon the jury's reasoning with respect to any of the counts on which the applicant was convicted, never emerged in his submissions. There is no reason to suspect that the jury may have reasoned in the fashion attributed to them or did other than address each count separately, applying the standard of proof beyond reasonable doubt to each element as directed by the trial judge.

48 The particulars provided under this proposed ground assert:

Particulars

In his Victim Impact Statement and in the proceedings, which resulted from [J's] application for compensation pursuant to s.85B of the Sentencing Act, it was disclosed to the applicant for the first time that [J] had made a separate complaint that [Q] of the Jesuit Order had molested him while he was attending Xavier College. The assault was alleged to have taken place after the matters for which the applicant was convicted.

It was also disclosed that [J] had a mistrust of Priests occasioned by:

1. being assaulted every day with a strap by the Christian Brothers whilst at primary school in Queensland; and
2. having a fear of being molested by [B], a Priest who had protected him from being bullied at Xavier College, after having been informed by one of his peers that [B] was a 'poofter'.

Had these matters been disclosed to the applicant prior to the commencement of the trial they would have been admissible;

a) to establish that [J] was biased,

1. to disprove [J's] evidence in respect of the time at which he claimed that the offences herein took place; and

c) as to [J's] credit generally.

To the extent that it could be claimed that the incident with [Q] represented a previous sexual experience of the complainant, the Applicant was deprived of the right to make application to the learned trial Judge to adduce the evidence pursuant to s.37A of the Evidence Act 1958.[9]

49 Counsel quickly conceded that, as the victim impact statement of J was not made until after the conviction of the applicant, the prosecution could not be reasonably accused of failing to make adequate and timely disclosure of its contents and that, if this history was to be considered at all by the Court, it would have to be treated as fresh evidence. At its heart, the contention was advanced that as J had indicated that he had developed mistrust of priests and, presumably, Christian Brothers by reason of his experiences with them, his evidence against the applicant might be reasonably perceived by the jury as motivated by bias and unreliable. Had the defence been aware of these matters at the time of the trial, the evidence could have been used to challenge the credit of J generally, the argument proceeded.

50 Forensically, it is difficult to see of itself, how the credit of J or the reliability of his evidence would have been adversely affected by his complaint that he had been the victim of physical or sexual assault by others.[10] When pressed by the Court to expand on his argument as to how the evidence could be used to assist his client, counsel submitted, in effect, that the jury would have had to exclude the reasonable possibility that J, motivated by malice or anger against members of Roman Catholic religious orders generally had attributed to an innocent person, conduct in which he had never engaged. There is such an air of unreality about this argument that it can, we consider, be put to one side. The fact that J had made a broad complaint about his treatment by Christian Brothers in primary school and that his confidence in a priest who had helped him was lost, when it was claimed by one of his peers that the priest was 'a poofter', could hardly be seen to detract from the reliability of his evidence concerning the conduct of the applicant on the basis that he may have been motivated by bias and anger. Nor of itself, could the fact that he claimed that he had been sexually assaulted by some other member of the clergy at some time after the events under consideration be so regarded. At most, the evidence could have been used in a collateral attack upon his credit.

51 We would add that, in the course of discussion concerning counsel's argument on this aspect, the Court sought assistance with respect to the particular problems that could arise in the application of the approach adopted in Sadler where there was, as in the present case, cross admissibility of evidence of a number of complainants. The use to which evidence of acts committed against other complainants in those circumstances was considered by the High Court in Hoch v R where it was said:

In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent with both the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.[11]

52 We have now had the benefit of further written submissions from both counsel on this aspect. Whilst, in view of the decisions at which we have arrived, it is not necessary to decide this question, we consider that there can be cases in which the kind of risk asserted by counsel to have arisen here would need to be addressed by the trial judge, and no reason in principle why, if evidence of charged or uncharged acts against other persons is to be used in the assessment of the probability of the commission of the charged act against a particular complainant that the standard of proof beyond reasonable doubt would not apply.

53 Obviously, in a situation where the risk that the commission of the uncharged acts might be used in the jury's assessment of the probability that the charged acts were committed could not be seen to arise, no such instruction would be required. However, as Nettle JA pointed out in Sadler, ordinarily it would be safer for a trial judge to remove any possible misunderstanding or misuse by the provision of the instruction.

54 Treating the ground as one seeking leave to adduce fresh evidence, when regard is had to the peripheral character of the proposed evidence and the absence of any significant probative value, the application is refused.

55 In his written submissions provided to the Court on behalf of the applicant, counsel argued that the convictions were unsafe and unsatisfactory by reason of a combination of:-

a) the age of each of the alleged offences;

b) the medical condition of the applicant;

c) the procedural unfairness in the counts relating to [J] and [S];

d) the evidence of [S's] mental illness; and

e) the direction in respect of the uncharged acts.

...

56 Each of these matters has been addressed in this judgment. Individually considered, none would justify the intervention of this Court and taken together, we are far from persuaded that any of the verdicts could be regarded as unreasonable. There was sufficient evidence upon which the jury was entitled to rely to support each of the convictions. The instructions given by the trial judge with respect to each of the counts and complainants were appropriate in the particular circumstances. There was no inconsistency between the verdicts and no basis for suspecting that the jury may have approached their task on the basis of impermissible reasoning.

57 It follows that the application for leave to appeal against conviction is refused.

[1] He was acquitted on counts 1, 2, 3, 4, 9, 12 and 14 which related to allegations of a generally similar character involving another three other persons between December 1972 and September 1981.

On each of counts 17, 18 and 21 the applicant was acquitted upon the direction of the trial judge following a successful submission by the applicant's counsel that there was no case to answer.

[2] Longman v R [1989] HCA 60; (1986) 168 CLR 79.

[3] See R v Lawless [1974] VicRp 49; [1974] VR 398.

[5] HML v R; SB v R; OAE v R [2008] HCA 16; (2008) 235 CLR 334.

[6] [2008] VSCA 198.

[10] The Court has no information concerning whether the allegations contained in the Victim Impact Statement were properly based.

[11] [1988] HCA 50; (1988) 165 CLR 292, 296 (Mason CJ, Wilson and Gaudron JJ).