R v R J R [2005] VSCA 315

1 In each of these applications I agree, for the reasons stated in the judgment to be delivered by Cummins, A.J.A., that they should be dismissed.

2 Only one matter has concerned me, namely, the misdirection as to the use of the victim's history as related to her doctor. It was wrong to say, in unqualified terms, that those parts of the history given to the doctor which were adopted by her as true becomes part of the evidence before the jury at the trial, without making clear that mere repetition by that form of adoption cannot be used to bolster the prosecution case. In other words the jury should have been told that mere adoption as true of what she had said to the doctor could not be used by the jury to confirm the account in her evidence of what took place. In the present case the jury were told clearly enough that the history given to the doctor could not in itself be used to support the prosecution case and the problem is only with the proper use of the material which in the course of evidence the victim adopted from that history as true and which thus became in the judge's terms "part of her evidence in this court to be evaluated by you in the same way as any other evidence". But the adoption, to the extent that there was any such adoption, did not come as part of examination-in-chief but by reason of cross-examination on behalf of the applicant. Thus the essence of what was being put by counsel for the applicant at that time was that the victim had made a number of inconsistent statements to the doctor and it was essentially the inconsistent parts of that story which counsel sought to have the witness adopt as true. To an extent counsel was successful. But the essence was that those parts conflicted to a greater or lesser extent with what she had said in her evidence-in-chief. The jury could have little doubt as to how counsel sought to use the inconsistencies and thus to use that part of the history adopted by the victim as true as a means of attacking her credit. That was the use to which counsel for the applicant at the trial sought to make of those parts of the evidence which the victim adopted and in practical terms the confirmatory aspects of the adopted portions of the history were minor. Any direction from the judge suggesting that the answers so given were not to be treated as part of the evidence would have been

counterproductive to counsel's conduct of the applicant's case below. I therefore think that there has been no miscarriage of justice by reason of any defect in the direction given by the judge.

3 I agree that, for the reasons advanced by Cummins, A.J.A, the applications for leave to appeal against conviction and sentence should be dismissed.

4 These are applications for leave to appeal against convictions and sentences from two trials each involving the applicant. The first trial ("the Bairnsdale trial") was held in the County Court sitting in Bairnsdale in November 2003 and in which the applicant was found guilty on one count of false imprisonment and two counts of rape and was found not guilty on five other counts on the eight count presentment. The victim was a 38 year old woman, M.E.O., with whom the applicant had been residing for ten years until a short time before the offences. The second trial ("the Sale trial") was held in the County Court sitting in Sale in February 2004 and in which the applicant was found guilty on one count of committing an indecent act with a child under 16 years and one count of making a threat to kill and was found not guilty on two other counts on the four count presentment. The victim in that case was a thirteen year old girl who was the daughter of the victim in the Bairnsdale trial and who was living with her and the applicant in the family home at the time of the offending. Both sets of offences occurred in the family home at Traralgon. At the time of the offences the applicant was 49 years of age.

5 The same Judge presided at each trial.

6 In March 2004 in Melbourne pleas on behalf of the applicant were heard by Her Honour. On 21 April 2004 Her Honour sentenced the applicant to an effective

sentence of 11 years' imprisonment for the Bairnsdale trial offences and 5 years' imprisonment for the Sale trial offences, to be served cumulatively, making a total effective sentence of 16 years 3 months' imprisonment. Her Honour ordered that the applicant serve a minimum term of imprisonment of 14 years before eligibility for parole. The particulars of the sentence appear in paragraphs 84 and 87 below.

7 An additional period of three months' imprisonment, making the total 16 years 3 months stated in the previous paragraph as forming the total effective sentence, derived from a third proceeding. That was a short jury trial held in November 2003 in Bairnsdale immediately following the Bairnsdale trial abovementioned, and in which the applicant was found guilty of theft of equipment from his employer in Sale in 2002. Her Honour in April 2004 sentenced the applicant to nine months' imprisonment for that offence and ordered that three months of that sentence be served cumulatively upon the other sentences imposed. Thus the three months upon the sixteen years. No application is made in respect of the theft conviction and sentence and I shall make little further reference to the theft matter.

8 I shall deal with the applications in respect of the Bairnsdale trial and the Sale trial in sequence.

9 At the Bairnsdale trial the applicant was presented on an eight count presentment being six counts of rape and two counts of false imprisonment. All counts related to the same victim, M.E.O., and related to events in the family home in Traralgon. Counts 1 to 4 were rape counts between 1 January 1993 and 31 December 1993. Count 5 was a count of aggravated burglary on 3 April 2002. Count 6 was a count of unlawful imprisonment on that date. Counts 7 and 8 were counts of digital rape on that date. The trial commenced on 5 November 2003. On 12 November 2003 verdicts were returned by the jury. The applicant was found guilty on Counts 6, 7 and 8 and not guilty on the other counts, the verdict on Count 5 being by direction on the basis that the applicant was a joint owner of the house.

10 The substituted grounds of the application for leave to appeal against conviction in the Bairnsdale trial are the following (Count 6 being false imprisonment and Counts 7 and 8 being rape, upon which three counts the applicant was found guilty):

" GROUNDS OF APPEAL AGAINST CONVICTION

1. The learned trial judge erred in her directions to the jury concerning the evidence of 'a complaint made by [the Complainant] to another':

PARTICULARS

(i) The learned trial judge erred in failing to direct the jury that there was no evidence of complaint with respect to the offences the subject of Counts 5, 6, 7 & 8 which bore upon the credibility of the Complainant.

(ii) The learned trial judge erred in failing to direct the jury that the evidence of complaint did not extend to, relate to or cover the digital rapes the subject of Counts 7 & 8.

(iii) The learned trial judge erred in failing to direct the jury that no evidence of complaint had been led before the jury with respect to the offences the subject of Counts 7 & 8.

2. The learned trial judge erred in failing to direct the jury that the evidence of Dr Willis-Sullivan as to what the Complainant had told her concerning the matters the subject of Counts 6, 7 & 8

(a) could not be used by the jury as evidence that those matters had actually occurred as described by the Complainant; and

(b) could only be used by the jury as evidence that those matters had been told by the Complainant to Dr Willis-Sullivan.

3. The verdict on Count 7 is unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.

PARTICULARS

(i) There was insufficient evidence upon which a jury, properly instructed and acting reasonably, could find beyond reasonable doubt that the Applicant's digital penetration of the Complainant's vagina was intentional.

(ii) The Crown had failed to exclude beyond reasonable doubt an hypothesis consistent with innocence, namely, the Applicant's digital penetration of the Complainant's vagina was not intentional but, instead, merely accidental.

4. There has been a substantial miscarriage of justice by reason of the combination or aggregation of the defects or errors in the trial of the Applicant which have been identified in Grounds 1 - 2 herein."

11 A summary of the evidence led at the trial is as follows.

12 M.E.O. (hereafter Ms O) gave evidence that at the time of the trial was aged 39. She had two children, C aged 15 and A aged 12. She was a manager by occupation. In 1991 Ms O. met the applicant. They subsequently commenced a relationship and in 1992 the applicant moved into a house in Traralgon with Ms O. and her children. In 1991 Ms O. had come out of a violent relationship with another man, who had made threats of violence towards her and her children. Ms O. obtained an intervention order against him on behalf of herself and her children. The applicant said he would protect her and the children if he showed up. Initially, Ms O. and the applicant got along very well.

13 One night in 1993 Ms O. and the applicant had an argument relating to the number of sexual partners each had previously been involved with. The argument became heated, and the applicant became very jealous. At some stage, Ms O. was lying on her back on the lounge room floor, and the applicant was pulling her clothes off and had his hand over her mouth so that she could not scream and had trouble breathing. Ms O. was trying to scream, and the applicant told her to be quiet so as not to wake the children. Ms O. struggled against the applicant, but he managed to get on top of her, force her legs open with his legs, and put his penis into her vagina (Count 1). The applicant got off Ms O. grabbed her hair and pulled her by her hair to the kitchen table. The applicant bent Ms O. forward onto the table, then put his penis into her vagina from the rear (Count 2). He withdrew his penis, then turned Ms O. around and pushed her onto the ground, so that her mouth was at the level of his penis, and told her to suck his penis. Ms O. did not want to do this, but did (Count 3). After a short while, the applicant pulled Ms O. off her knees, and lifted her back onto the kitchen table, this time lying her on her back. He pushed her legs apart and put his penis in her vagina again (Count 4). A short time later the applicant withdrew his penis and ejaculated on her stomach. The applicant did not wish to participate in any of these actions but was scared of the applicant and did not want her children to be harmed or to see what was happening. After the incident the applicant apologised to her. Their relationship continued, because the applicant was so apologetic, and they decided to "try and work through it".

14 In cross-examination Ms O. agreed that prior to 1993 she and the applicant engaged in quite a bit of spontaneous sex, but that after the events in 1993 she found that quite offensive. She could not recall the date, or even the month, on which the alleged rapes took place. The children were at home that evening, but did not wake. Ms O. experienced excruciating pain in her legs and a result of having them forced apart, but did not seek any medical treatment for the pain. At the end of the whole process, the applicant gently held and soothed Ms O., cuddled her to sleep and apologised profusely. He said he was sorry and did not know why he did what he had done. Neither of them used the word "rape" to describe what had occurred. It was put to Ms O. that the event consisted of one incident of vaginal intercourse that she was not happy with because it was "rougher than usual, not in keeping with your expectations", which suggestion Ms O. rejected. Ms O. agreed that within weeks, she and the applicant began communicating, and their relationship improved. She did not complain to anyone about it until April 2004, but had discussed it with the applicant and suggested they get counselling. Her sexual relationship with the applicant resumed, but it was not like it had been previously. She did not give the applicant oral sex for a long time after the incident, and he complained that she had "lost that loving feeling".

15 Ms O. gave evidence that on Saturday 9 March 2002, she decided to end her relationship with the applicant. (Although, correctly, the reason for the termination of the relationship was not led before the jury, the reason was the discovery by Ms O. of sexual and other misconduct by the applicant against her daughter, set out in paragraphs 65 and 66 below and which was the subject of the Sale trial in February 2004). When the applicant returned home that day, Ms O. was outside the house with his bags packed. The applicant was not happy, and wanted to go inside the house. Ms O. was standing between the applicant and the front door, to prevent the applicant entering the house, and the applicant got "really agitated" and punched Ms O. in the side of her head with a closed fist. Ms O. called to the children to call the police, and that is when he hit her. He punched her twice. Soon after, Ms O.'s girlfriend and the police arrived. By that time the applicant had calmed down, and he agreed to leave the premises.

16 As of 9 March 2002, Ms O. and the applicant jointly owned the Traralgon home, both were repaying the mortgage, and the applicant had several keys to the premises.

17 On Sunday 10 March 2002, the applicant telephoned Ms O. and asked whether he could come over. They agreed to have coffee outside the back of the house. On either Sunday or Monday, the applicant went into the house to collect some of his clothes. On either Sunday or Monday, Ms O. had a conversation with the applicant. He was very hurt and upset, and "couldn't understand how he could throw 10 years out the drain". The applicant also told Ms O. that he was contemplating suicide. Later that week the applicant contacted Ms O. again, and she agreed to meet him outside the Traralgon Police Station. The following Saturday, Ms O. went to a friend's house for dinner, and the following day the applicant telephoned her and asked why she had come home in a taxi the previous night.

18 The applicant continued regularly to telephone Ms O., and on about 24 March 2005 she agreed to meet him outside the Ice Creamery in Traralgon. They were siting outside having coffee and talking, when suddenly the applicant told Ms O. that he had taken out some personal protection, and that if anything happened to him then he would burn the house and she would come to harm. Ms O. jumped up from the table and ran to her car. The applicant came after her, held her hands and said, "Don't go". He calmed down and Ms O. spoke to the applicant a little longer, and asked him not to contact her for one month. The applicant agreed.

19 A further meeting took place outside the newsagent's on around 29 March 2005. The applicant was very remorseful and upset that day. The applicant had sent flowers to Ms O.'s work and telephoned her to arrange another meeting. Ms O. did not want him coming back to the house, and felt that if they were out in public there would be people around in case he became angry. Ms O. reminded the applicant that he had promised to leave her alone for one month. On 31 March, the applicant telephoned Ms O., asking whether A could play golf with him, and Ms O. refused.

20 On the evening of Wednesday 3 April 2002, Ms O. attended a meeting. Her children were out. After the meeting, Ms O. had one drink with a girlfriend, and returned home at around 11.30 pm. As she walked through her home, she noticed the back door slightly ajar, which was unusual, and she pushed the door closed. She walked to her bedroom and put her hand on the light switch, when the applicant jumped out from behind the bedroom door holding a metal bar above his head. Ms O. was startled, and went to turn around when the applicant grabbed her around the face and covered her mouth. His other hand was holding the bar, and Ms O. was trying to get the bar away from her as it was held against her neck. The applicant and Ms O. struggled, and the bar fell to the ground. The applicant still had his hand over her mouth, and Ms O. had trouble breathing. Ms O. was kicking and struggling, and they moved down the passageway and into the kitchen. Ms O. bit the applicant's hand hard, and he let go of her and she could breathe. She could not recall biting her lip at the same time. Ms O. asked the applicant, "Why are you doing this? What's going on?" The applicant calmed down, and they sat at the kitchen table. The applicant asked Ms O. where her engagement ring was, and she said she had moved it to her right finger. The applicant told Ms O. she did not deserve to have the ring any more, and asked her to take it off. Ms O. removed the ring and placed it in a glass platter on the table. The applicant also asked her to remove a necklace he had given her for their anniversary, so she removed it and also placed it on the platter.

21 The applicant stood up, and Ms O. saw that he had a knife in his hand. He held the knife above his head, pointed downwards towards her. Ms O. said, "What the hell are you doing, what's going on?". Ms O. said the applicant "wasn't calm any more it was - I didn't like the look in his face, it was scary". The applicant moved the knife down, in front of his stomach, pointed towards Ms O. and said that he did not trust her. He then walked behind Ms O. and gave her a cuddle. The applicant then produced a roll of grey duct tape, and told Ms O. he wanted to tie her hands up. Ms O. said, "Why the hell do you want to tie my hands up for? What have I done?". He said, "Tie them up", so Ms O. put her hands in front of her and placed tape around her wrists. Ms O. felt very scared.

22 In cross-examination it was put to Ms O. that the applicant's possession of the knife was linked to his suicidal intentions, but Ms O. denied that he said it was to cut himself. Ms O. described the knife as having a black handle and silver blade. The applicant produced it from a brand new black sheath which he was wearing on the side of his waist. She did not recognise the knife as being one from her kitchen.

23 Ms O. gave evidence that the applicant allowed Ms O. to remove her high heeled shoes, before taping her ankles as well. Ms O. crossed her ankles before they were taped, in the hope that this would give her more room to free them. The applicant told Ms O. that he did not trust her, and that he was going to die tonight. He said he had pills ready. Ms O. was scared, and tried to make out to him that their relationship was not over, and that with time they could work things out. Ms O. then pretended to be in pain from an ulcer, and the applicant cut the tape from her hands and ankles. The applicant told Ms O. he was going to try and have sex with her, and that they were going to have a shower. He took her clothes off. At first Ms O. resisted, but then she just let him remove her clothes, as she did not want him getting angry. Ms O. noticed the applicant had an erection, and asked him how he could have an erection when doing this to somebody he was supposed to love. The applicant told Ms O. she was "the beautifulest and sexiest woman he knew". The applicant led Ms O. to the bathroom, holding her hand. He turned the shower on, made Ms O. get in first, then undressed and got into the shower himself. The applicant washed Ms O.'s body, including her back, buttocks, breasts and vagina. Ms O. stated, "when he was rubbing the soap, his finger went inside of my vagina, around the clitoris area, and then just inside the vagina. It wasn't - he didn't put his finger all the way in, but I didn't even want him touching me" (Count 7). Ms O. flinched and tightened her buttocks to stop it going any further. The applicant then rinsed himself, told Ms O. to rinse her "moosh" (which is what he called her vagina) and turned the shower off. In cross-examination Ms O. agreed she was unable to dispute the possibility of accident, with the applicant lathering her legs and inner thighs.

24 After getting out of the shower, Ms O. got the applicant a towel and herself some tracksuit pants and a T-shirt. The applicant knocked the clothes out of her hands, and said she would not need them. He dried himself and said they were going to bed. Ms O. said, "I don't want to go to bed", but the applicant led her to the bedroom. They got into bed, under the doona. They were in bed for a little while. At one stage, Ms O. was lying on her back, and the applicant was lying on his side facing her. He ran his hand over Ms O.'s vagina, touched her clitoris then inserted a finger or fingers into her vagina (Count 8). Ms O. said she did not want to do this. The applicant lay on top of Ms O., then just stopped and said, "I'm not going to have sex with you" and told Ms O. that he did not want to rape her again to prove that he loved her and that she could trust him. In cross-examination, Ms O. said the applicant said he did not want to hurt her, not that he did not want to rape her.

25 Ms O. gave evidence that she got out of bed to get a drink. The applicant followed her. He then said they were going back to bed to cuddle. They returned to bed and the applicant cuddled into Ms O.'s back. He told her she should remember this time. At about 3.00 am he got up to go to work. Before leaving, the applicant offered to take his house keys off his key ring, so that Ms O. could feel safe that he would not return. He removed the keys and put them on the platter with the ring and necklace. He left soon afterwards, kissing Ms O. on the cheek on his way out. Ms O. started trembling and shaking, and was scared that he was nearby. After 5 or 10 minutes she telephoned her father, E.O., and then the police. The following evidence was given by Ms O.:

"What did you say to your father? --- I just told him that J. had been here, he'd been terrorising me and that he'd tied me up and he had a knife and - and I didn't know what I was supposed to do, was I supposed to ring the police or what. I just needed someone to tell me I was going to be all right. And Dad said to me, 'He can't get away with that'. And then he was breaking up, I couldn't hear him, and he handed the phone across to [B], who was working with him, and she's been a long-time family friend and works for my dad, and they were working together, and she told me that hang in there and they'd be there within the hour. So then I hung up.

What did you do then? --- It was really dark in the house and I just had the mobile phone still, so I used the light from that to find the numbers on the house phone and I dialled 000.

You rang the police then, did you? --- I dialled 000, yes, and I asked for the police."

26 Dr K Willis-Sullivan, a medical practitioner employed as the Registrar in Obstetrics and Gynaecology at Monash Medical Centre gave evidence that at 8.00 am on 4 April 2002, she examined Ms O. at the Latrobe Regional Hospital. She obtained a history from Ms O. and conducted a physical examination. Dr Willis-Sullivan stated the history given by Ms O. as follows:

"Ms O. stated to me that she'd been sexually assaulted by her ex partner, R.J.R., earlier that morning. She told me that she'd been out with friends and had returned home at approximately 11.30 on 3/4 and that when she entered her bedroom Mr R. stepped out from behind the door and threatened her with a metal bar or pipe - she couldn't quite describe it - and a knife. Ms O. stated that Mr R. grabbed her around the neck and placed a hand over her mouth and forced her down the hallway to the kitchen. She told me that they'd scuffled on the way to the kitchen and that he'd pushed her against the walls and pulled her hair. She said that his thumb had been in her mouth and that she'd bitten it and that he'd bled into her mouth. She told me that Mr R. then taped her hands together with duct tape and took her to the loungeroom, where he taped her ankles together. Later he removed the duct tape and then took off her clothing before removing his own clothes. Ms O. said he threatened her with a knife and forced her into the shower. She told me that as she stood in the corner of the shower he soaped her body and then penetrated her vagina with his fingers. He then took her back to the bedroom and made her lie on the bed. She stated that he lay on top of her, put his legs between her legs and kissed her on the breasts and abdomen and penetrated her vagina with his fingers. She stated to me that he had an erection but he did not penetrate her with his penis, and she was unsure as to whether or not he'd ejaculated."

27 Dr Willis-Sullivan noted the following injuries on Ms O.'s body: bruising on the lower lip, tenderness and swelling of the inner lip, bruising and haemorrhages inside the mucosa of the lip, and a shallow incised wound about 1 cm in length; a bruise 6 cm by 16 cm around the right side of Ms O.'s neck; irregularly shaped areas of patterned bruising on the middle back and right shoulder, each area measuring 8 by 8 cm; three small circular bruises on her left arm; seven very small marks associated with abrasion on the back of the left wrist; three bruises to the back of the left hand; four small red marks on the back of the right wrist and three small marks on the front of the right wrist. There were no injuries on the legs, ankles or feet, and no genital injuries.

28 Dr Willis-Sullivan gave evidence that in her opinion the bruising to the neck was consistent with Ms O.'s complaint of being held around the neck. The bruises to the arm were "gripping bruises" usually made by fingertips. The injuries to the lower arms appeared to be defensive injuries. The marks on Ms O.'s back were likely to have been caused by her skin being rubbed against the loose-knit jumper she was wearing. The injuries to her lip were consistent with her complaint of the applicant's hand being held over her mouth, and biting of his thumb. The abrasions on her wrists may have been caused by the tape being applied and ripped off, the more likely cause being the ripping off of the tape. The absence of such abrasions from her ankles was likely to be because the tape was applied to her ankles over clothing rather than to her skin. The absence of genital injuries did not preclude digital penetration from having occurred.

29 In cross-examination Dr Willis-Sullivan said that Ms O. told her that she was initially threatened by the applicant with both a knife and metal bar. She complained of a scuffle down the hallway and banging against the walls, which would have resulted in the little bruises on her back, caused by the application of force to the clothing she was wearing. She did not mention the metal bar being placed around her neck. Nor did she complain of being unable to breathe.

30 Mr E.H.O., the father of the complainant and a truck driver by occupation, gave evidence that at about 3.00 am on 4 April 2002, he received a telephone call from his daughter whilst he was driving his truck. The following evidence was given by Mr O:

"You, in fact, had been working all day and you had been driving trucks for the day; is that right? --- Yes.

In fact, you went on working through the night, and it was, as you say, around about three o'clock when you were in Korumburra, that your mobile phone rang and it was M on the phone; is that right? --- Yes, that is right.

How did she sound; what sort of manner did she seem to be in?

--- Well, she was - first of all I couldn't hear what she was saying, she was extremely distressed and crying, and - and I said, 'Well, I'll have to stop so everything's quiet so I can hear what you've got to tell me', and then she told me about what had happened.

Did you park the truck so you could hear what she was actually saying? --- Yes, I did.

Did she tell you that [the applicant] had come to her house around about 11 p.m. that night; that is, earlier that same night? --- She did.

Did she say that he'd only just left prior to her making the call to you? --- That's exactly right.

What did she then say to you about what had happened? --- She told me that - that she'd been tied up with, her hands and her legs with duct tape, and been threatened with a piece of pipe and a knife.

Did she also say to you that he had threatened her not to tell the police? --- She did.

And that if she did, he would burn down her house and ... the place that she worked at in Traralgon? --- That was - that's right.

Did she say all that in the phone call to you on that particular night? --- Yes, she did.

Did you tell her that you would come to her house but it would take you about an hour to get there? --- Yes, I did.

Did you in fact do that; you drove eventually --- ? --- Yes

--- to [her] house; and when you got there about an hour later, the police were already there; is that right? --- Yes, there was two policemen there.

How did she appear to be at that stage? --- She was - she was pretty distressed about the whole thing. She'd calmed down a little bit, but she wasn't in a real good state of mind about what had happened."

31 Detective Senior Constable Kahan of the Morwell Criminal Investigation Unit gave evidence that at 6.00 am on 4 April 2002 he attended at the Traralgon home. He took the photographs tendered as Exhibit A. When police arrived, the back door of the house was deadlocked. At 7.50 am, Mr Kahan conveyed Ms O. to the Latrobe Regional Hospital. At about midday on 4 April 2002, Detective Senior Constable Kahan conducted a tape recorded interview with the applicant. The applicant had been arrested shortly before at his workplace.

32 In the interview the applicant said that on the night of 3 April 2002 he went to the Traralgon home and let himself in with his own keys. He had an iron bar and hid until Ms O. arrived home at about 11.30 pm. He went there to talk to her about their relationship. When she got home, he jumped out, the iron bar fell to the ground and they wrestled. Things settled down and they talked. He had some duct tape with which he tied Ms O.s' hands in order to effect his escape or take his own life. He then freed her from the tape. He cut the tape with a knife from the kitchen. They had a cuddle, a shower together and went to bed - the cuddle, shower and going to bed all being with Ms O.'s consent. As to those activities the applicant said (Q 764):

" ... there was no intentions to get her aroused. All's I was trying to do was to get her sort of get - bring back memories, that's all it was. Just to sort of - probably what we're both missing out on."

The applicant repeatedly stated that "no sex at all took place". He went to work at about 3.30 am.

33 As to their having a shower together the applicant repeatedly stated that his fingers did not enter Ms O.'s vagina. He said that in the shower he washed her breasts, stomach and legs with her consent. He said:

"I didn't touch her vagina. I did not touch her - her vagina in any shape or form." (Q 766)

"No fingers went inside her at all." (Q 767)

"No, I never touched her fanny at all. And I was making sure I didn't." (Q 880)

There were other like answers. As to the question of consent, the following was stated as to the events in the shower (Qs 769-771):

"Do you think she would have consented to you putting your finger into her vagina at that stage?

--- I did not put my finger ...

I'm not saying that - do you think she would have consented to you --?

--- No, but I wouldn't have even tried.

Do you think that she would have consented to you ---?

--- No, she wouldn't have. But I didn't even try."

34 The applicant did not give evidence at trial and no other witnesses were called by the defence.

35 I turn to the grounds of application for leave to appeal from convictions in the Bairnsdale trial.

36 Grounds 1 and 2, set out in paragraph 7 above, relate to the non-direction by the learned trial Judge as to the proper use and limitation of complaint evidence. In essence it is put on behalf of the applicant that there was no sexual component in the complaint by Ms O. and thus there was no complaint with respect to the relevant counts. However, the submission continued, her Honour failed so to direct the jury and erroneously left the statements of Ms O. to her father set out in paragraphs 22 and 26 above as evidence of complaint.

37 Her Honour gave the jury conventional directions of law as to complaint, but related them only to Counts 1 to 4 (the 1993 counts and as to which the applicant was acquitted). She did not relate the directions to Counts 6 to 8 (the 2002 counts).

38 No exception was taken at trial to the Judge's directions and non-directions as to complaint. Nor was there any objection to the leading of that evidence.

39 In my view no error has been shown to have occurred at trial. To be admissible a complaint must express a grievance or accusation - R. v. Saragozza[1] - which this complaint did. In Saragozza the Court stated:

"It is unnecessary to consider whether complaints are admissible only if they are capable of being viewed as of a sexual nature."[2]

"The complaint of V was of conduct which formed an integral part of the commission of the sexual offence about which she deposed in evidence. To say that the complaint was capable of relating only to the threats themselves may be regarded as artificially isolating them from the sequence of events giving rise to the sexual offences."[4]

So too here. Although not expressed in sexual terms, the complaint in the present case was in a sexual matrix of facts. The issue was whether the conduct occurred and whether it was by consent. Both matters involved a sexual context. The complaint was admissible on the question of the credit of the complainant that the event occurred, was serious, and was without consent. The complaint being admissible in law, the question whether in the circumstances the complaint was of a sexual matter was one for the jury[5]. As I have said, the point was not taken below. In my view this ground fails.

40 The history given by Ms O to Dr Willis-Sullivan is the subject of Ground 2. Counsel for the applicant submitted that that evidence was hearsay and the jury should have been directed that the evidence was not evidence of the truth of its contents. Her Honour did not so direct the jury.

41 Again, no exception was taken at trial as to the Judge's directions and non-directions on this matter.

42 The evidence was admissible as part of the basis for the doctor's opinion. It was also relied upon by the defence as a prior inconsistent statement. Her Honour correctly directed the jury as to its possible use as a prior inconsistent statement. Her Honour correctly directed the jury as to opinion evidence. Her Honour should have directed the jury that the history was not evidence of the truth of its contents. Unfortunately her Honour conflated a direction on prior inconsistent statement with one as to opinion evidence, thereby erroneously directing the jury that if the complainant adopted in court the out-of-court statement it became evidence. The question is the consequence of that error. As to that, the history was led without objection by defence counsel. A forensic advantage was sought from that elicitation, namely its use as a prior inconsistent statement. There was admissible evidence of complaint to Mr O. There was clear evidence of the offences. In all the circumstances I do not consider that any substantial injustice occurred. This ground fails.

43 Ground 3 is that the verdict on Count 7 is unreasonable and is not supported by evidence in that there was insufficient evidence that the digital penetration of the complainant by the applicant was intentional; and that the prosecution had failed to exclude that it was accidental.[6]

44 There was one person in court who knew whether or not it was accidental: the applicant. He remained mute.

45 There was an amplitude of evidence to establish it was intentional. The applicant denied it occurred. He admitted in the record of interview there would be no consent. The complainant gave evidence of a violent and brutal experience. This ground fails.

46 Ground 4 is the aggregation of errors from Grounds 1 to 3 which have not been made out, the only error being that stated in paragraph 39 above, and thus Ground 4 fails.

47 I turn now to the Sale trial.

48 At the Sale trial the applicant was presented on a four-count presentment. In each instance the victim was C.S., the daughter of Ms O. the victim in the Bairnsdale trial. The offending occurred in the family home at Traralgon. At the time of the offences the victim was 13 years of age. Count 1 was incest between 11 and 15 February 2002; Counts 2 and 3, each of an indecent act with a child under the age of 16 years, Count 2 being between 11 and 15 February 2002 and Count 3 on or about 20 February 2002; and Count 4, a threat to kill between 11 February 2002 and 9 March 2002. The jury found the applicant guilty on Counts 2 and 4 and not guilty on Counts 1 and 3.

49 There had been a previous trial of the matter, held in Bairnsdale in November 2003 after the other two trials (of rape of Ms O. and of theft from the applicant's employer). The jury was unable to agree and was on 21 November 2003 discharged without verdict. The matter then was listed for hearing in the Sale court in February 2004.

50 The substituted grounds of application for leave to appeal against conviction are:

"1. The learned trial judge, in both directing the jury with respect to the elements of the offence of threat to kill (Count 4) and summarising the evidence relating to this offence in her Charge to the jury, erred in failing to direct the jury that the evidence of the Complainant with respect to 'what [she thought was] meant by [the statement alleged to be the threat]' was irrelevant and must not be used by the jury in its determination of whether or not the Applicant was guilty of this offence.

2. The verdict on Count 4 is unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.

PARTICULARS

(i) There was insufficient evidence upon which a jury, properly instructed and acting reasonably, could find beyond reasonable doubt that the Applicant had made a 'threat to kill'.

3. The learned trial judge erred in her Charge to the jury by making a number of comments to the jury within her summary of the defence case and, as a consequence, there has been a substantial miscarriage of justice.

4. The learned trial judge erred in the exercise of her discretion in refusing to discharge the jury without verdict consequent upon the application for same which was made by defence counsel at the conclusion of the Charge to the jury, the basis of the said application being that the learned trial judge had made a number of comments within her summary of the defence case and, as a consequence, there has been a substantial miscarriage of justice."

51 A summary of the evidence led at the trial is as follows.

52 The evidence in chief of C.S. (hereafter Miss S.) was given by way of an edited VATE tape, made on 17 April 2002 at the Morwell Sexual Offences and Child Abuse Unit.

53 Miss S gave evidence that at the time of the events she was 13 years old. She lived at the family home in Traralgon, with her mother, brother and the applicant who was her step-father.

54 On an occasion when her mother was in Sydney, Miss S was at home with the applicant. He was in bed, and Miss S went into his room to ask whether she could go to "Inferno", an underage disco. The applicant was in his dressing gown, and lying on the bed reading a newspaper. Miss S. sat half on the bed.

55 The applicant was lying down on the bed. He grabbed Miss S., tried to pull her over, then told her to "Move over", and she got onto the bed next to him. The applicant placed his hand over her mouth and Miss S. was panicking and could not breathe. The applicant took off Miss S.'s boxer shorts. He lay on top of her, and inserted his finger into her vagina (Count 1). Miss S. was crying, and the applicant was looking at her with a smirk on his face. The applicant told Miss S. to put her leg up and to relax. The applicant then ejaculated onto Miss S.'s stomach (Count 2). Miss S. said she initially did not know what the substance was, but described it as "white stuff".

56 Miss S. was screaming and carrying on, and the applicant got really angry, so she ran out to her bedroom. She closed the door and pushed her back against it. The applicant tried to get in and punched the door. The applicant told Miss S. to clean herself up and get some Panadol. Miss S. also heard the applicant tell her brother A to go back to bed. Miss S. stayed in her room until all the lights were off and the applicant had gone to bed, then cleaned herself and went to bed.

57 The next day, the applicant told Miss S. not to tell anyone. He said that if she told anyone, she would go to jail for perjury, and that her Mum would lose her job and he would go to jail and they would all live out in the street. The applicant threatened Miss S. not to tell about four times on the telephone. In the words of Miss S. in the VATE tape:

"And then perjury, he started cracking on about perjury, and I didn't know what he meant, but he said 'You'd go - you'll go to jail for it, because I'm the adult. They'll believe me, they won't believe you.'"

On the Wednesday following the events, when her mother was collecting her brother from cricket, the applicant said the following (in Miss S.'s words in the VATE tape):

"--- Yeah, he said if I went to jai -, if he went to jail, if I told and he went to jail, it'd be the last of me. That ---

Well?

--- He said that when I told him that - I go - I threatened him. I said that I'm gonna tell.

Yep.

--- 'I have to tell someone. You don't know what it's doing to me.' And he said, 'If I go to jail, it'll be the fucking last of ya.'

And what do you think he meant by that?

---He was gonna kill me, or he was gonna get someone to kill or hurt me."

That was the basis of Count 4.

58 On that day her mother had to collect her brother from cricket. Miss S. was crying and did not want her mother to go. After she had left, the applicant said to Miss S. "We've got to sort this out". The applicant grabbed Miss S. by the jacket, dragged her to his bedroom and pushed her onto the bed, telling her to get on her knees. Miss S. was really scared, and did what he said. The applicant unzipped his trousers and said, "You wanna give me head?". Miss S. got up and ran to her bedroom, and sat against her door. The applicant did not follow her. Later, but before her mother got home, the applicant said to her "If you ever told anyone, it'll be the last of you".

59 Miss S. complained to her mother on a Saturday. The applicant was going to golf, and tried to kiss her on the check. Miss S. told him to "fuck off" and walked away. Her mother told her off for speaking to her father like that, and Miss S. said, "Well, if you knew what he'd done to me, then maybe you'd understand". Her mother said, "You can't say that and not tell me". Miss S. then told her what had happened. Whilst the applicant was at golf, her mother packed his bags and put them at the door. Miss S said her mother kicked the applicant out that day. In cross-examination Miss S. said that she was not planning to tell her mother about what had happened. She said she was terrified and did not know who to turn to.

60 The next day, on Sunday, the applicant returned to the house and apologised for what he had done.

61 In cross-examination Miss S. stated that at the time she was in Year 8. The following year, she was kept down and repeated Year 8. During 2002 she got into trouble at school for various reasons and was given a number of detentions. During the 12 month period preceding the offending, Miss S.'s relationship with the applicant deteriorated, and they fought about issues such as television viewing and bad language. It was put to Miss S. that she walked into the applicant's bedroom and announced that she was going to the Inferno, which she denied. Miss S. denied saying to the applicant, "You're not my fucking Dad, you don't tell me what to do", and kicking the newspaper from his hands. It was put that to end the argument, the applicant picked Miss S. up and slammed her onto the bed, which Miss S. denied. It was put that during this argument, the applicant's forearm brushed against her vagina, which Miss S. denied. It was further put that the applicant immediately apologised, and said, "I'm sorry C, I didn't realise you didn't have underpants on", which Miss S. also denied. She denied threatening the applicant that if he didn't let her go to Inferno she would tell her mother than he put his fingers inside her vagina. She said she did not threaten to have him kicked out of the house.

62 Ms O., the mother of Miss S., gave evidence. She stated that she was living in a de facto relationship with the applicant for just over ten years, until they separated on 9 March 2002.

63 Ms O. gave evidence that between 11 and 15 February 2002, Ms O. was in Sydney on a business trip. The applicant was looking after her two children. Whilst in Sydney, she received a number of telephone calls from the applicant, during which he expressed his annoyance at her being away. Ms O. returned home on Friday 15 February 2002. During the next few days, Ms O. noticed her daughter was using bad language towards the applicant, telling him to "fuck off" and using the word "cunt". Ms O. was surprised because her daughter did not usually speak in this way, and was also surprised that the applicant did not react or discipline her daughter for using such language. Following her return from Sydney, Ms O. stated the relationship between the applicant and her daughter had changed, and they did not spend any time together.

64 During the last weekend in February, Ms O. asked her daughter and the applicant to sit down at the kitchen table with her, and tell her what was going on as she could not stand it any longer. Neither of them wanted to talk about it, and Miss S. just shrugged her shoulders and remained silent. The relationship between Miss S. and the applicant continued to deteriorate. They were not talking to each other very much, and when they did, it was short and angry.

65 On Saturday 9 March 2002 the applicant went out to play golf. Ms O. was angry at her daughter, and told her she needed to wake up to herself and pull her socks up. Miss S. said, "Mum, you don't understand, if you only knew", and Ms O. snapped back, "Well, how the hell can I help you if you don't tell me what's wrong". A couple of minutes later, Miss S. told her mother that the applicant "had touched her and that he had put his finger inside her and that she had white stuff all over her belly". She said that it happened when her mother was in Sydney. She said the applicant "told her not to tell anybody, and that if she did that he would kill her, I would lose my job and it would be all her fault". She also demonstrated to her mother how the applicant covered her mouth with his hand. Miss S. was crying and shaking whilst describing all of this.

66 That day, Ms O. decided to separate from the applicant. She packed his belongings whilst he was at golf, and was waiting outside with his bags when he returned home. When he got out of the car Ms O. threw the bag at the applicant, and confronted him about the allegations. The applicant threw his hands up and said, "I should not have done what I've done. I know I've done the wrong thing, but it's not what you think". He then said, "She came onto to me, she's not the little girl you think she is". The applicant kept saying "I've fucked up". The applicant wanted to speak to the children. A came outside, and the applicant said to him "I've hurt [Ms S.] and I've hurt Mum, and I've got to go". Miss S. then came outside, and the applicant said to her, "I'm sorry for what I've done to you. I hope that you can forgive me". The applicant then left. The following day the applicant returned to the house and had a further conversation with Ms O. and the children. He again apologised for what he had done.

67 Detective Senior Constable Kahan of the Morwell Criminal Investigation Unit attended the scene and took photographs of the door to Miss S.'s bedroom, tendered as Exhibit A. The door was not a solid wooden door. On 18 April 2002 he conducted a tape recorded interview with the applicant. A summary of it was stated in evidence as follows: the applicant told police he knew Miss S. was 13 years old and was his step daughter at the relevant time; Ms O. had travelled to Sydney around 13 February 2002; and the applicant denied the allegations made by Miss S. The interview was not tendered in evidence as it was substantially a no-comment interview.

68 The applicant did not give evidence at trial and no other witnesses were called by the defence.

69 I turn to the grounds of the application for leave to appeal against conviction in the Sale trial, set out in paragraph 46 above.

70 Grounds 1 and 2 relate to the evidence on Count 4 as to threat to kill. Ground 1 is that the evidence (cited in paragraph 53 above) of Miss S. as to her belief as to the meaning of the applicant's words was inadmissible. In support of the ground it was submitted that the belief of a complainant on a count of threat to kill contrary to s. 20 Crimes Act 1958 was irrelevant. R. v Cahill.[7] was cited in support of that submission. In my view the submission is erroneous. An offence under s. 20 is concerned with putting a person in fear that the threat will be carried out. Accordingly the belief of the person is relevant and admissible. R. v. Cahill is distinguishable in that there the question was the intent with which the offender broke into the house rather than the effect the words had on the victim. This ground fails.

71 Ground 2 is that the verdict on Count 4 cannot be supported on the evidence because a properly instructed jury could not find that the relevant words constituted a threat to kill. It was submitted that the words uttered did not necessarily convey an intention to kill as distinct from an intent to cause aggravation, upset or some other form of unpleasantness. I disagree. The meaning of the words was for the jury to determine according to proper principles of proof including the context of surrounding acts. The victim was a 13 year old girl. A serious sexual offence had occurred. The threat was made to prevent the victim having recourse to law. These were high stakes. It was abundantly open to the jury to find that the words were a threat to kill. This ground fails.

72 Grounds 3 and 4 of the application for leave to appeal against conviction are, in essence, that there was a miscarriage of justice by reason of comments made by the trial Judge during the charge to the jury which comments were adverse to the defence case. As counsel before us (who was not counsel below) put it, the charge was a "step by step demolition" of the defence case.

73 In order to consider Grounds 3 and 4 I have read the transcript of defence counsel's final address and have listened in full to a recording of it. I apply the criteria stated in Mule v. The Queen[8], RPS v. The Queen[9], R. v. Mathe[10] and R. v. Soldo[11] as to the need for care and restraint in judicial comment and the imperative of balance and fairness.

74 A measure of the tone of defence counsel's final address is that defence counsel referred to the complainant as "a conniving little bitch" - expression by counsel which is wholly unacceptable. A measure of the analysis is that defence counsel described the standard of proof by reference to an extended Australian Rules football metaphor and which was inapt. Another instance is the repeated assertion by defence counsel that "allegations are easily made" - a hallmark I would have thought of a bygone age and as erroneous then as it is now. Although the applicant did not give evidence and no witnesses were called to lay an evidentiary basis for the assertions, counsel's final address was peppered with the factual assertions "It didn't happen", "It was not said" and like assertions with no qualification that the assertions were arguments or analysis. More troubling still is the circumstance that counsel advanced from the Bar Table when the applicant remained mute explanations for the applicant's answers for which there was no basis in evidence. One instance suffices. The applicant said to Ms O. "I've done the wrong thing". He also said "I know I've done the wrong thing". There was no explanation in evidence as to what the applicant meant. Counsel proffered the following analysis to the jury:

"What does he mean, then? 'I know I've done the wrong thing'. Is it his treatment of the girl in terms of the disciplinary issues, letting her get away with, 'Don't fucking tell me what to do', that sort of thing, letting her get away with her behaviour? Getting himself into any situation where the possible allegation could be made. I mean, clearly in these days of sexual political correctness no man should go within a bull's roar of any young person because you just leave yourself wide open to the slightest allegation. I mean, there are such things as accidental touchings of genitalia, believe it or not. We know it happens. I mean, for God's sake, you've only got to be bathing your three-year old daughter or your four-year old son in the bath, you dry him, you rub up accidentally - you're purposeful, you're trying to dry the genitalia. These things happen You give someone a hug. You might inadvertently press up against the breast. If [Miss S.] was in the room and saw that, she'd say, 'I saw [counsel named himself] touch that person on the tit'. It's not reliable. You know there are accidental touchings of genitalia and private parts. It does happen. The defence case is that's what happened on this occasion, but we don't expect the defence to prove it. Allegations are easily made. Allegations are terribly difficult to disprove and as my friend many times told you, we don't carry any burden of proof, the Crown carries it.

'I've fucked up, I've fucked up'. That's in the same category as 'I know I've done the wrong thing. I know I've allowed this whole situation to get out of hand', that sort of context. Or even possibly, again in these days of political correctness, he, a non-lawyer, may even think he has done the wrong thing because there has been this accidental touching of the vagina. As a non-lawyer he may very well be thinking, 'That is a crime, for all I know'. But that is not a guilty mind of the crime with which he is being charged, intentionally penetrating the girl. That's not that sort of guilty mind, that's a mistaken guilty mind, if it was a guilty mind when he said 'I've done the wrong thing'."

75 An extravagant and erroneous final address cannot justify a trial Judge giving an unbalanced or unfair charge. The solution is to guide and if necessary control counsel. The duty remains upon the trial Judge to give a balanced and fair charge. The complaint here is that the Judge failed to do so.

76 It would have been better for the learned trial Judge to have eschewed comment. Juries are well able to assess counsel's arguments. However the question is whether the learned Judge's comments were such in character or cumulation as to constitute a miscarriage of justice. I consider they were not, for the following reasons.

77 First, the Judge on a number of occasions correctly directed the jury that any comment she made did not bind the jury in any way. She correctly distinguished directions of law from comment on fact. Of course, directions as to the non-binding of comment can become a parody if the comment is unjudicial in content or extent; but I do not consider that arose here. Second, the quantity of comment by the Judge was not substantial. She reviewed the defence address over 131/2 pages. The first comment of a balancing nature occurred after four pages. At the outset of her summary, the Judge clearly and fully put the defence case, shorn of its forensic excesses, and in no respect impugned the defence case. The Judge rehearsed 28 arguments of defence counsel and made balancing comment as to four of those arguments. Of course a merely quantitative assessment is a crude measure. As to the character of the Judge's comments, they were in my view justified and measured in each instance. The sum of course can be greater than the parts; but I do not consider that the overall effect was unbalanced, unfair, or likely to prejudice the applicant's fair trial or to deflect the jury from its function as the sole judges of the facts. The jury found the applicant not guilty on two counts on the presentment.

78 As to the specific comments made by the Judge, her comment as to the football analogy was humorous and not harmful to the defence. Her comment as to vaginal discharge was as to a minor matter. Her extended comment as to the timing of complaint was wholly justified in view of counsel's final address which repeatedly asserted in the most simplistic way that "victims of crime complain at the first opportunity". Her comment as to the argument of defence counsel as to the difference between the complainant's demeanour on the VATE tape and in cross-examination was justified. Given the demeanour and tone of counsel in cross-examining the complainant I consider that such comment as Her Honour did make on that matter was restrained.

79 As to the structure of the charge in rehearsing the defence case, at its outset Her Honour clearly and comprehensively put the defence case, and with no adverse or balancing comment. At its conclusion she correctly and firmly directed the jury that rejecting defence arguments was inadequate to constitute proof of the crimes charged. She correctly directed the jury as to the onus and standard of proof.

80 The Judge's charge was much briefer (5 pages) in rehearsing the prosecution final address and contained no comment, favourable or otherwise, as to fact or argument. That does not involve that the Judge was evidently preferring the prosecution case to that of the defence. Rather it involves the different character and content of the two addresses. The prosecution final address (a recording of which I have listened to) was within proper limits.

81 In my view the Judge's charge was not unfair or unbalanced in the existing circumstances of the trial. Certainly the character and content of the charge do not warrant setting aside the convictions. The Judge was entitled to go some distance in comment in view of defence counsel's address, so long as the charge remained balanced and fair. I conclude that it was not unbalanced or unfair.

82 In my view Grounds 3 and 4 fail.

83 I would dismiss the applications for leave to appeal against conviction in the Bairnsdale trial in which Ms O. was the victim and in the Sale trial in which Miss S. was the victim.

84 At the outset I mentioned briefly that there was a theft trial, held in Bairnsdale immediately after the trial concerning Ms O. The applicant was charged with the theft from his employer, a transport company, of equipment worth $1,700 including chains, bolts, scraps and binders. Although the applicant did not give evidence in the trial concerning Ms O. or in the trial concerning Miss S., he did give evidence in the trial on the count of theft from his employer. He said that he had temporarily borrowed the equipment alleged to have been stolen in order to colour-code it and then return it to his employer. Plainly the jury did not believe him. There is no application for leave to appeal against conviction or sentence in that matter.

85 I turn to the applications for leave to appeal against sentence.

86 The grounds of the applications in both cases - the Bairnsdale trial involving the victim Ms O. and the Sale trial involving the victim Miss S. - essentially are the same. They are that the individual sentences are manifestly excessive, the cumulation is excessive, and the differential between the total effective sentence and the minimum term is too small thereby constituting error. No discrete error in the learned Judge's reasoning is asserted.

87 The sentences imposed were as follows. In relation to the victim Ms O., on Count 6, false imprisonment, the applicant was sentenced to four years' imprisonment. On Count 7, rape, the applicant was sentenced to eight years' imprisonment. On Count 8, rape, the applicant was sentenced to eight years' imprisonment. Her Honour directed that one year of the sentence on Count 6 and two years of the sentence on Count 8 be served cumulatively upon the sentence imposed on Count 7 and upon each other, making a total effective sentence on that presentment of eleven years' imprisonment.

88 On the theft presentment, the applicant was sentenced to nine months' imprisonment.

89 In relation to the victim Miss S., on Count 2, committing an indecent act with a child under 16 years, the applicant was sentenced to three years' imprisonment. On Count 4, threat to kill, the applicant was sentenced to three years' imprisonment. Her Honour directed that two years of the sentence imposed upon on Count 4 be served cumulatively upon the sentence imposed on Count 2, making a total effective sentence on that presentment of five years' imprisonment.

90 As to the interface between the Bairnsdale and Sale presentments, the learned Judge directed that three months of the sentence on the theft count be served cumulatively upon the total effective sentence on the Bairnsdale presentment as to Ms O. She further directed that the effective sentence on the Sale presentment be served cumulatively upon the Bairnsdale presentment. In the result the learned sentencing Judge sentenced the applicant to a total effective sentence on the three presentments of imprisonment for 16 years 3 months. Her Honour directed that the applicant serve a minimum term of imprisonment of 14 years before becoming eligible for parole.

91 Her Honour sensibly stood over the hearing of the pleas and imposition of sentences for a little time after the conclusion of the Sale trial. The pleas were heard on 17 March 2004 and the sentences imposed on 21 April 2004. Both hearings were held in Melbourne.

92 The applicant at the time of sentence was 52 years of age. He had an extensive history of criminality and of violence. In particular in March 1984 at the Magistrates' Court at Stawell he was convicted on two charges of assault with a weapon, one charge of being a convicted felon in possession of a firearm, and one charge of indecent assault. For those offences the applicant was sentenced to serve two years' probation with conditions to undergo psychiatric treatment. Those offences arose from the circumstances of separation from the applicant's then wife, who had left the applicant ten days previously. The victim had returned to her parents' home. The applicant went there, armed with a gun, and forced her to return to the marital home where he tied her hands and feet to the bedposts of their bed. He then undressed her and in the process indecently assaulted her. Two years later, soon after his period of parole expired, the applicant in 1986 committed the offences of rape with aggravating circumstances, aggravated assault and theft of a motor vehicle. The applicant pleaded guilty in the County Court to those offences and was sentenced to a total term of ten years' imprisonment with a minimum term of seven years' imprisonment (equating after remissions then applicable to approximately seven years' imprisonment with a minimum term of four years' imprisonment). An application for leave to appeal against the sentences was dismissed. The offences again were in the context of separation and the victim (a friend of the applicant's partner) was subjected to a terrible experience with a gun to her head.

93 A psychological report of Mr M. Crewdson was tendered in this case in which it was stated that the applicant was "an individual who is generally fairly tightly controlled and who cannot cope with issues that threaten that sense of control". There was no evidence that the applicant suffered from a psychiatric illness.

94 The applicant was correctly sentenced as a serious sexual offender pursuant to s.6B Sentencing Act 1991.

95 There is no error demonstrated in Her Honour's reasons for sentence.

96 Her Honour perceptively observed:

"Thus, [Mr R.], for the third time in your life you stand before a court to be sentenced for sexually abusing and terrifying women in the aftermath of a failed relationship, and this is quite apart from the offences involving [Miss S.]. Each incident of sexual abuse in that context was a response by you to the ending of a relationship against your wishes, that is there is a clear pattern to your offending. Your offending against [Miss S.] occurred at a time when you had appeared to suspect her mother of infidelity towards you whilst she was in Sydney."

Her Honour correctly stated that the applicant's sexual offending pattern was "to dominate and re-assert power you felt you had lost".

97 The offences in relation to Ms O. were brutal, frightening and humiliating. The offences in relation to Miss S. were a gross breach of trust by a man who had been treated as a father for ten years by the victim. The threat to kill was especially manipulative and abusive in that context, and was designed to prevent the victim's access to law. The applicant showed not a shred of remorse.

98 In my view the sentences in relation to both victims were justified.

99 I would dismiss both applications for leave to appeal against sentence.

[1] [1984] VicRp 15; (1984) V.R. 187 at 198-199. Compare R. v. Knigge [2003] VSCA 94; (2003) 6 V.R. 181 where at 190 Winneke P described the 'complaint' as being "in the nature of general discourse between the complainant and the witness about events of day to day activities".

[2] At 199.

[3] (1992) 78 A. Crim. R. 388.

[4] At 394. See also The Queen v. GG [2004] V.S.C.A. 238 at [33] per Eames J.A. and in whose judgment Warren C.J. and Batt J.A. agreed; R. v. Maple [1999] V.S.C.A. 52 at [11] per Tadgell J.A. and in whose judgment Ormiston and Chernov JJ.A. agreed; Reppas v. The Queen (1998) 20 W.A.R. 178 at 185-186 per Murray J (in whose judgment Wallwork J. agreed); and R. v. Blayney and Blayney [2001] S.A.S.C. 211 at [25]- [27] per Bleby J.

[5] Daniels v. The Queen (1990) 1 W.A.R. 435 at 442 per Kennedy J., in whose judgment Malcolm, C.J. and Seaman, J. agreed, and R. v. Mainwaring (1983) 2 N.S.W.L.R. 82 at 90 per Miles J.

[6] This ground does not involve a holistic review of the evidence as contemplated by M. v. The Queen (1994) 181 C.L.R. and like authority, but rather a discrete consideration of the evidence on the issue of the intentional act.

[7] (1998) 4 V.R. 1.

[8] (2005) 79 A.L.J.R.1573 at [6] per curiam.

[9] [2000] HCA 3; (2000) 199 C.L.R. 620 at 637 [42] per Gaudron, A.C.J. and Gummow, Kirby and Hayne, JJ.

[10] [2003] V.S.C.A 165 at [75] per Eames, J.A.

[11] [2005] V.S.C.A. 136 at [83] - [86] per Eames, J.A. in whose reasons Batt and Nettle, JJ.A. agreed. See also R. v. Ivanovic [2005] VSCA 238 at [33]- [39] per Eames, J.A. in whose reasons Nettle, J.A. and Hollingworth, A.J.A. agreed.