R v S L J [2010] VSCA 16

**1 After a trial in the County Court, the applicant was convicted on one count of maintaining a sexual relationship with a child under the age of 16 years, contrary to the provisions of s 47A of the Crimes Act 1958 (Vic) ('the Act').[1] He was sentenced to nine years' imprisonment with a non-parole period of six years.

2 The applicant sought leave to appeal against his conviction. At the conclusion of argument, we announced that the appeal would be allowed, the conviction set aside and the sentence quashed. We said that we would publish our reasons in due course. These are those reasons.**

**3 To prove the offence, the prosecution was required by s 47A(2) to establish that, on three separate 'occasions' during a particular period and while the child was under the age of 16 years, the accused 'did an act in relation to the child which would constitute an offence' against certain provisions of the Act.[2] The relevant offences included sexual penetration of a child under 16[3] and committing an indecent act with or in the presence of a child under 16.[4]

4 Subsection 47A(3) addresses the question of proof. It provides:**

It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).

**5 Initially it appeared that the issue on the appeal was whether the evidence had established with sufficient specificity three 'occasions' on which the applicant had done such an act. The written submission for the applicant conceded that it was open to the jury to find that there had been two such occasions, but argued that the evidence did not permit the identification of the necessary third occasion. The written submission for the Crown responded by pointing to three further instances of relevant offending, each of which was said to constitute a sufficiently-identified third 'occasion'.

6 In oral argument, however, the focus was not on whether sufficient qualifying occasions could be found in the evidence. Instead, senior counsel for the applicant drew attention to parts of the evidence given by the complainant which, he contended, were incapable of founding a conviction for this offence but which the judge had told the jury could be considered for that purpose. According to the submission, the relevant parts of the evidence**

simply described the repetitive doing of like acts throughout the period in question. The complainant did not (indeed, could not) distinguish any sexual act from any other sexual act. The complainant did not (indeed, could not) distinguish any occasion from any other occasion. Moreover, there was no other evidence adduced (for example, an item of circumstantial evidence) which would have permitted the jury to differentiate either any occasion from any other occasion or any sexual act from any other sexual act.

In other words, with respect to the sexual interference by the applicant of the complainant either in the applicant's home office in his garage or in the complainant's bedroom at and inside the complainant's house, the evidence given by the complainant was so 'general' that it was impossible for any jury ever to be satisfied as to the commission of any sexual act by the applicant which constituted the offence of sexual penetration of a child under the age of 16 or the offence of any indecent act with a child under the age of 16.[5]

**7 In response, senior counsel for the Crown conceded that this submission was correct and that the judge had erred in his directions to the jury concerning the use of the evidence in question. For reasons which follow, we were satisfied that the concession was properly made.

8 It is well established that evidence of 'a general course of sexual misconduct' or of 'a general pattern of sexual misbehaviour' is not, or not necessarily, evidence of 'an act ... which would constitute an offence' for the purposes of s 47A.[6] Although it is not necessary for the prosecution to prove the dates or 'exact circumstances' of the act(s) said to constitute the offence, the prosecution must nevertheless**

prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each 'occasion'. Reference to circumstances or occurrences happening at a particular time is the usual way of identifying or describing an 'occasion'.[7]

**9 Although s 47A(3) relieves the prosecution of the necessity to prove a relevant act with 'the same degree of specificity' as would be required if that act were alleged to constitute a substantive offence, there must nevertheless be 'some degree of specificity as to date, time, place, circumstances or occasion of each relevant act'.[8] This is so both as a matter of fairness to the accused and because of the necessity of the jury's being satisfied as to the commission of the same three acts.[9]

10 As noted by the High Court in KRM,[10] which concerned s 47A, provisions of this kind were intended to create an offence**

the component parts of which by their very nature may have occurred over a long period, in the past, and in circumstances in which precise recall of detail will not only be difficult for a complainant, but also may provide fertile ground for cross-examination of him or her on behalf of an accused.[11]

The modification (by s 47A(3)) of the degree of specificity required

was doubtless based upon the particular difficulty, even impossibility, in most cases of repeated sexual offences committed by an adult against a person when a child, for the victim of such offences to remember, and to be able to particularise, the dates or exact circumstances involved.[12]

11 The present case may be thought to be a good illustration of these very difficulties, and the generalised nature of the complainant's evidence to be characteristic of just such a case. The relevance (if any) of that evidence to the charge faced by the applicant had, however, to be determined in accordance with the principles to which we have referred.

**12 The complainant was the daughter of the girlfriend of the applicant. The complainant's family, consisting of the complainant, her mother and three siblings, lived near the applicant. The applicant introduced the complainant to tennis at a club to which he belonged. The applicant paid for her tennis lessons and took her to and from the lessons. In this way the applicant had ready access to the complainant.

13 It was alleged that the offence was committed between 1 January 2005 and 31 March 2008, when the applicant was between 56 and 59 years old and the complainant was aged between 10 and 13 years.

14 The principal Crown witness was the complainant. She gave evidence by means of a VATE tape and in Court. The applicant gave evidence at the trial. He denied the complainant's allegations of sexual misconduct and gave detailed evidence of the circumstances attending his relationship with her.

15 On the appeal, senior counsel for the applicant identified five parts of the judge's charge in which, he contended, the trial judge invited the jury to find individual 'occasions' in quite generalised evidence. For example, his Honour recounted the following evidence given by the complainant:**

He gave me koala hugs with my clothes on. We were sitting on the couch together, me on top of him, legs on either side and him pushing my butt up and down and him rubbing his hard penis against my vagina like we were having sex and he would push me and push his tongue down my throat, so that I couldn't really breathe ... also he would pull my top down and suck my breast like a baby does and lick it and I would hug him and I would just look behind him and I'd just find something to counter or something to look at that would entertain me so that I wouldn't have to think about it.

His Honour then gave the jury the following direction as to the use of that evidence:

So that again, subject to what evidence you accept, there are three relevant qualifying offences. The first is an indecent act with a child under 16. The relevant act would be that rubbing of a hard penis against her vagina, pushing her backside up and down in a simulated sex move. ... The second offence would be another offence of an indecent act with a child under 16. In this case the relevant act would be tongue kissing her. ... [T]he other indecent act, which would be open to you, would be pulling down her top and sucking her breast.

**16 With respect, the critical question was not whether the evidence disclosed 'qualifying offences', that is, whether acts of the kind alleged would, if proved to have occurred, constitute one or more relevant sexual offences. Rather, the question was whether the evidence in question was capable of supporting a conclusion, beyond reasonable doubt, that the applicant had on an occasion - identified with 'some specificity' - done an act which constituted a relevant sexual offence.

17 In our view - and as senior counsel for the Crown conceded - this evidence was not capable of supporting such a conclusion. As is apparent from the complainant's repeated references to what the accused 'would' do to her, she was describing a course of conduct. She was giving an account of what typically or routinely or generally occurred. There was nothing which distinguished one offending act from another.

18 It is unnecessary to multiply examples. The concession by the Crown extended - rightly, in our view - to the other four passages in the charge said to manifest the same error. In a similar fashion, his Honour, in those parts of his charge, instructed the jury that they could find qualifying offences in undifferentiated descriptions of offences repeatedly committed over time. (The complainant's evidence was expressed in language of the following kind: 'the normal routine was ...' and 'he would always ...'). Accordingly, there is every likelihood that the jury will have found a qualifying offence or offences in evidence which simply did not permit such a finding to be made, and on that basis found the applicant guilty.

19 We note that, very soon after giving the impugned directions, his Honour enquired of both counsel whether there were any exceptions to the charge. None was raised. It is both surprising and regrettable, in our view, that neither counsel identified the point on which this appeal has succeeded, especially given that the High Court's decision in KRM[13] concerned this very provision.**

**20 Senior counsel for the respondent conceded that the trial judge's charge did permit the jury to find that the offence had been established by evidence which did not disclose the commission of individual offences. He sought, however, to save the conviction by invoking the proviso to s 568(1) of the Act.

21 The jury's verdict is one of the matters to be taken into account by an intermediate appellate court in determining whether or not the guilt of the accused was established beyond reasonable doubt. In Weiss v The Queen[14] the High Court drew attention to the importance of the role of the jury and the likely effect of the vitiating error in determining the verdict which the jury returned. The Court said:**

the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The Court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial.[15]

**22 The High Court in Weiss v The Queen[16] said that the application of the proviso was to be undertaken 'in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence'.[17] The High Court in M v The Queen,[18] dealing with the ground of unreasonableness, said that the Court was to make its own independent assessment of all the evidence. At the same time, the Court was to pay full regard to two matters. The first was that the jury was the body entrusted with the primary responsibility of determining guilt or innocence. The second was that the jury had the benefit of having seen and heard the witnesses.[19] It is only by giving full weight to the role of the jury that 'substituting trial by a court of appeal for trial by jury'[20] can be avoided.

23 As a consequence of what we consider was a fundamental flaw in the charge, the jury's verdict in the present case is opaque. Nothing can been discerned of the view of the facts taken by the jury, other than that they must have accepted at least some of the evidence given by the complainant and rejected the applicant's blanket denial of wrongdoing. In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence.[21] In the present case, however, the nature of the misdirection does not permit such a conclusion. No weight can be placed upon the fact that the jury returned a verdict of guilty.

24 Further, the nature of the error made by the trial judge deprived the applicant of a trial according to law, that is, the jury's resolution of questions of fact by the application of the applicable law correctly explained to them by the trial judge. This was not a case in which it is 'possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury.'[22] It cannot be said that the trial judge's error 'could not reasonably be supposed to have influenced the result'.[23] Nor was this a case where the nature of the allegations made against the applicant were such that the appellate court is as well placed as the jury to make its own evaluation of the evidence and a determination of the guilt of the applicant, which may be so where the prosecution relies principally upon circumstantial evidence.[24]

25 In our view, the position of this Court in determining the question of the applicant's guilt would have been essentially indistinguishable from that of a jury. It would have been necessary to identify three qualifying occasions on which relevant offences were alleged to have been committed; determine whether the complainant's evidence as to those offences should be accepted; and decide whether, to the extent that the applicant gave inconsistent evidence, his evidence should be rejected. In our opinion, it was not possible for this Court to determine what were the primary facts of the case without usurping the role of the jury.

26 For the foregoing reasons, we concluded that the proviso was inapplicable. Having quashed the conviction, we directed that the appellant be retried, since we were of the view that it would be open to a jury to find at least three qualifying occasions on which relevant offences were committed. As noted earlier, the applicant conceded on the appeal that there were two. As to the third, it is neither necessary nor appropriate in the circumstances to say more than that we agree with the Crown's submission that there were three other instances where the evidence was capable of establishing, with sufficient specificity, the commission of a relevant act.

[1] The name of the offence was changed by the Crimes (Sexual Offences) Act 2006 (Vic). It is now 'persistent sexual abuse of a child under the age of 16'.

[6] KBT v The Queen (1997) 191 CLR 417, 423 ('KBT').

[7] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 227 (McHugh J) ('KRM').

[8] Ibid 245-6 (Gummow and Callinan JJ).

[10] [2001] HCA 11; (2001) 206 CLR 221.

[11] Ibid 245 (Gummow and Callinan JJ).

[13] [2001] HCA 11; (2001) 206 CLR 221.

[14] [2005] HCA 81; (2005) 224 CLR 300.

[17] Ibid 316. See also Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373, 399.

[18] [1994] HCA 63; (1994) 181 CLR 487.

[21] See Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358, 395 (Hayne, Crennan and Kiefel JJ).

[22] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 317.

[23] Stokes v The Queen [1960] HCA 95; (1960) 105 CLR 279, 284-5 (Dixon CJ, Fullagar and Kitto JJ).

[24] R v KDY [2008] VSCA 104; (2008) 185 A Crim R 270, 282.