R v Sadler [2008] VSCA 198

Mr S Ward, Acting Solicitor for Public Prosecutions

1 The applicant was presented for trial in the County Court at Melbourne on two counts of rape (Counts 11 and 15), two counts of intentionally causing injury (Counts 1 and 3), two counts of causing injury recklessly (Counts 2 and 4), one count of intentionally causing serious injury (Count 17), two counts of false imprisonment (Counts 10 and 14), one count of causing serious injury recklessly (Count 18), six counts of threat to kill (Counts 8, 12, 16, 19, 20 and 21) and five counts of common law assault (Counts 5, 6, 7, 9 and 13), all of which except for Counts 20 and 21 were alleged to have been committed against the one victim. After a trial lasting eight days, the jury convicted him of one count of rape (Count 11), two counts of common law assault (Counts 5 and 6), six counts of make threat to kill (Counts 8, 12, 16, 19, 20 and 21), one count of intentionally causing injury (Count 1), one count of intentionally causing serious injury (Count 17) and one count of false imprisonment (Count 10). He now seeks leave to appeal against conviction on four grounds.

2 The applicant was born on 9 November 1978 and at the time of the offences was between 24 and 25 years of age. The complainant was born on 6 August 1969 and at the time of the offences was almost 10 years older than the applicant. He met her in 2000 or 2001 in South Australia where both of them were then living. She was or had been a prostitute, and was or had been addicted to heroin, but not long after meeting they entered into a relationship.

3 According to the Crown case at trial, the relationship deteriorated rapidly due to the fact that the applicant was possessive, controlling and violent towards the complainant. It was alleged that he had threatened her that if she ever left him he would do violence to her, her two children by her former partner, and her former partner, and that the complainant believed that the applicant would carry out his threats and was scared of him.

4 In 2003, the applicant was charged in South Australia with offences of failing to comply with bail, being unlawfully on premises and disorderly conduct and, while on bail, he and the complainant left Adelaide and travelled by train to Dimboola in Victoria. According to the complainant, she went with the applicant out of fear of what he would do if she did not go.

5 In late October of that year, while the applicant and the complainant were staying with friends in Dimboola, he told her that he wanted her to wear a wedding ring and, when she refused to do so, it was alleged that he had grabbed her ring finger and twisted it causing swelling and pain (Count 1, intentionally cause injury)[1] (found guilty).

6 Later that evening, when the lights were off, the applicant was alleged to have put his hands around her neck making it difficult for her to breathe and, feeling that she was about to lose consciousness, she drove her finger nails into his arm. She claimed that he then struck her on the nose with the heel of his hand causing her pain and her nose to bleed (Count 3, intentionally cause injury)[2] (found not guilty).

7 On 19 December 2003 the applicant and the complainant left Dimboola together and travelled by train to Melbourne and there took accommodation in a backpackers' hostel in St Kilda. Their accommodation consisted of an under and over double bunk in a dormitory of six double bunks shared with other people. They occupied the bottom bunk and stored their belongings on the top bunk, with a blanket hanging between the top and bottom bunks to afford them some privacy. They both did cleaning work in the hostel in return for free accommodation and, after a while, they both got jobs outside the hostel; the complainant as a kitchen hand at the Royal Melbourne Yacht Squadron.

8 On 14 January 2004, the complainant worked at the Yacht Squadron between 4.00pm and 12.15am and then walked back to the hostel. It was alleged that, when she entered the room, the applicant was verbally abusive towards her for failing to call him to come and walk her home, and that he then hit her with his fist to the upper back as he continued to shout abuse at her (Count 5, assault) (found guilty).

9 It was said that he stopped when other guests entered the room and at that point the complainant left the room and went to the balcony to join other guests for a glass of wine. Several minutes later, however, the applicant appeared on the balcony and told her that he wanted her to come inside so that he could talk to her and, when she said that she wished to stay to enjoy the wine, he grabbed her glass and threw the contents of it into the street below. He was verbally abusive to her and told the other guests not to give her alcohol, and with that the other guests left the balcony to enable the applicant and complainant to talk. Later they heard her scream as he was alleged to have punched her to the side of the head (Count 6, assault) (found guilty).

10 Later still, he and she went to their room to go to bed together. The complainant said that she then returned briefly to the balcony where other guests told her of a plan to help her escape. She said, however, that she then returned again to bed, after which the applicant punched her in the head causing her to cry (Count 7, assault) (found not guilty). She also claimed that she then got out of bed and went to the bathroom, and that he followed her in there and accused her of sleeping with one of the other guests, which she denied. She said that he told her that he knew that she intended to leave him and that if she did he would kill her former partner and her children (Count 8, threat to kill) (found guilty). She claimed that he then grabbed her woven hemp necklace and commenced to choke her with it (Count 9, assault) (found not guilty). She said that she defended herself by digging her fingernails into his arms and he released his hold.

11 The complainant further alleged that once back in bed when others in the dormitory appeared to be asleep, the applicant told her that they were going to the bathroom together again. She said that she did not want to go but that he said words to the effect of 'Bad luck, you're coming. We haven't had sex for three days. You must be sleeping with somebody else. Are you sleeping with Greg?' She said that she told him not to be ridiculous but that he then grabbed her by the hand, pulled her from the bed to another bathroom at the end of the hallway and forced her in against her will (Count 10, false imprisonment) (found guilty). The Crown contended that he then removed her skirt and underwear, pushed her back so that she ended up with her hands braced against the top of the toilet and forcibly penetrated her vagina with his penis from behind, calling her names such as 'dirty slut' as he did so. When she did not respond, he asked her why and she is said to have replied that it was because she did not want to be doing this. He was said then to have replied with words to the effect of, 'Bad luck. It's your duty as my wife' and continued to penetrate her until he ejaculated (Count 11, rape) (found guilty).

12 It was further alleged that throughout the following day he had continued to remind her of 'contracts' which he had taken out on the lives of her children and her former partner and of what would happen if she left him, so as in effect to repeat the threats to kill her and her children and former partner if she left him (Count 12, threat to kill) (found not guilty).

13 Later that day, he was said to have become violent towards her when they were both in the bathroom attached to their dormitory, and to have struck her several times with his fists to her body and arms and to have kicked her legs and buttocks. He was also alleged to have choked her again with the woven hemp necklace and then told her that she was to remain in the dormitory during his absence and that she was not giving him enough sex (Count 13, assault) (found not guilty).

14 Later still, when they were alone in the dormitory, it was said that he had told her that he wanted to have sex again. The Crown case was that she refused and said that someone might come in but that he told her that they were going to the bathroom and, although she then said that she was tired, he said that she was coming. It was alleged that he pushed her down the hallway to the bathroom and forced her into the bathroom despite her resistance (Count 14, false imprisonment) (found not guilty). Then, while sitting on the toilet, he was said to have undone her skirt and removed it and her underwear and then pulled her to him so as to sit on him and thus he penetrated her vagina with his penis. It was claimed that he then stood up, turned her around and resumed penile vaginal sexual intercourse from behind, and that he continued until he ejaculated (Count 15, rape) (found not guilty).

15 After leaving the bathroom, they returned together to their dormitory where it was said that no one else was at the time. It was alleged that he then said to her that if she left him he would go straight to her children and her former partner and kill them as well as arranging to have her killed (Count 16, threat to kill) (found guilty). It was further alleged that he had then continued to abuse her verbally and that he again kicked her buttocks nearly causing her to lose her balance and that, as she was recovering her balance, he came up to her and punched her several times. Then, as she was recovering from the effects of those blows, it was alleged that he moved behind her and head-butted her in the back of her head, causing her to see spots and become disoriented (Count 17, intentionally causing serious injury)[3] (found guilty), after which she dragged herself back to bed.

16 The next morning, 16 January 2004, the complainant woke at about 5.30am. She claimed that she was in pain and stiff as a result of the assaults to which she had been subjected. She said that the applicant told her to make lunch for him to take to work and then asked her for her key card. She said that she told him that she did not know where it was and with that he became angry and repeated his threat to kill her (Count 19, threat to kill) (found guilty).

17 Once he had left for work, other guests assisted her to contact the Salvation Army Crisis Centre, and while waiting for arrangements to be put in place to go to the centre, she was said to have complained to one of the other guests that the applicant had raped her in the bathroom the previous night and the night before that. The Crisis Centre made arrangements for her to be examined by a female doctor, Dr Nguyen, at the Royal Melbourne Hospital. The doctor observed multiple bruises on the complainant's lower limbs, upper buttocks and abdomen. She also observed tenderness in the right upper quadrant and in the pubic area together with bruising in that area. She noted too that there was tenderness in the midline on the back of the complainant's neck together with a number of areas of tenderness on her head. The doctor assessed the injuries as soft tissue injuries consistent with assaults.

18 David Labrum was a manager at the Royal Melbourne Yacht Squadron who hired the complainant as a kitchen hand. He gave evidence that on several occasions he saw the complainant in a distressed condition with the applicant behaving aggressively towards her. On one occasion, he said, he received a telephone call from the applicant enquiring after the complainant and insisting that she was at the Yacht Squadron when she was not. He said that the applicant became abusive and told Mr Labrum that he was sending 'Asians' from the western suburbs to kill him and set fire to the premises (Count 20, threat to kill) (found guilty).

19 Deborah Taylor was the payroll officer at the Yacht Squadron. She gave evidence that, during January 2004, she received two calls from a man who the Crown alleged was the applicant. In the first call, he spoke politely to Ms Taylor but in the second he asked for the complainant's pay and said that he was coming to get it. When Ms Taylor explained that she could not give it to him, he became aggressive and said that he was coming to the Yacht Squadron to kill Ms Taylor unless he were given the money (Count 21, threat to kill) (found guilty).

Cross-examination on the complainant's drug use and whether she had continued to work as a prostitute when she came to Victoria

20 Before the jury was empanelled, defence counsel sought leave under s 37A of the Evidence Act 1958 to cross-examine the complainant as to whether she had continued to work as a prostitute in Melbourne at the time of the alleged offences. In the course of argument, defence counsel explained that on his instructions the complainant had a long history of being a heroin addict as well as being a prostitute in Tasmania, South Australia, and in Victoria at or around the time of the offences. He wished to explore her work as a prostitute because, he submitted, it may provide an explanation for some or all of the injuries which she had sustained. The judge observed that, although the complainant had admitted at the committal hearing to having been a prostitute in South Australia, she had denied that she had worked as a prostitute in Melbourne and, on that basis, he said that he was not prepared to allow counsel to put that she had worked as a prostitute in Melbourne unless counsel could point to some evidence to that effect. Counsel was unable to do so and thus leave was refused.[4]

21 Defence counsel, however, persisted that even if the judge would not grant leave to cross-examine the complainant as to her prostitution, he wished to cross-examine her on her drug addiction as something which went to her ability to recount events. He told the judge that:

It would be put to her that she was continuing to use heroin in St Kilda and that that may have an effect on her ability to recount events and give credible [testimony].

22 The judge asked whether counsel had some evidence that the complainant was taking heroin in Melbourne and counsel answered that he was acting on instructions and that 'depending on how the trial pans out the accused man may be giving that evidence himself ...' .

If you tell me that there's evidence that she took heroin I might look at it differently. I suspect it's just another thing you've pulled out the hat.

Counsel answered that the complainant had admitted (at the committal hearing) that she had been a heroin addict in Adelaide and been hospitalised there for an overdose and had admitted that she was on methadone while in Dimboola and had only four doses before going 'cold turkey'. He said that the questioning he proposed would be along the lines of:

Well, in that position you would be desperate to have your drug again and you did succumb and you did get back on your drug problems,

and that would lead to a line of submissions which he proposed to make to the jury that the complainant was not a credible witness because she may have been affected by substance abuse. Counsel added that the questioning which he proposed was outside s 37A because it was not about sexual issues.

24 The judge said that he agreed that the proposed questioning was not within s 37A but that he would not allow counsel to cross-examine as to whether she had continued to work as a prostitute.

25 Defence counsel persisted with a submission that he should be permitted to cross-examine as to her drug addiction and, after referring the judge to relevant passages from Cross on Evidence[5] as to the possible effects of a medical condition on a witness's credit and to Toohey v Metropolitan Police Commissioner,[6] submitted that:

But to shut me out sir, in my submission, would leave a very important part of the attack on that witness out of the arena and, in my submission, it's an essential part - - -

26 At that point, the judge cut across counsel and said that there was no point cross-examining on the matter, because it was to be presumed that the complainant would deny it, unless there were evidence to contradict her denial. His Honour then asked counsel what evidence there was with which to contradict her presumed denial, and defence counsel answered that as follows:

The evidence of in the recent past she was using heroin, then on the methadone then cold turkey. So that's a matter for the jury at the end. Given those other pieces of evidence, those other threads, the jury may infer that most probably she was still using to some degree, to the extent that it may affect her v[e]racity or reliability, sir.

27 The prosecutor, however, resisted the application. He submitted that:

The heroin addiction, there's not evidence of it, and in St Kilda [sic] and the attack on her credit is, the attack on her credit, besmirch her character no further and your Honour has power under s 37 of the Evidence Act to prevent cross-examination on credit [which] has little or nothing, no relevance to the issue in this case.

It will look good in front of the jury if [defence counsel] ask it firmly enough, your Honour. Then your Honour will have to explain to the jury, which your Honour does anyway. It's the answers that are the evidence, not the questions, but the damage may well have been done by that point of time.

28 The judge appears to have accepted the prosecutor's submission. His Honour ruled that he would not allow any questions relating to the complainant's work as a prostitute and would not allow any evidence of her drug taking as there was not "a scintilla of evidence" as to either. His Honour held that to permit the cross-examination would be to permit gratuitous injury to the complainant's character which offended s 37 of the Evidence Act 1958.[7] He further disallowed cross-examination as to the allegation that the complainant worked as a prostitute as it would offend s 37A of the Evidence Act.

29 Counsel for the applicant advanced three arguments in support of his contention that the judge was in error in prohibiting defence counsel from cross-examining the complainant on her heroin addiction. The first was that the judge was wrong to treat s 37 of the Evidence Act 1958 as applicable inasmuch as its operation is confined to cross-examination of which the only relevance is to injure the character of a witness. Defence counsel had made clear to the judge that his purpose in seeking to cross-examine as to the complainant's addiction was to establish that she lacked or was affected in her capacity to perceive or recall the alleged offences, hence s 37 had no application.

30 We accept that submission. Section 37 is in terms confined to questions in cross-examination which 'relates to a matter not relevant to the suit or proceeding except in so far as it affects the credit of the witness by injuring his character.' Apart from any effect that cross-examination as to the complainant's addiction might have had upon the jury's assessment of her character, the jury might have inferred that heroin addiction affected her capacity to perceive and recall events and thus the weight to be given to her evidence. As Brennan J put it in Bromley v the Queen:[8]

evidence showing that [a witness's] capacity to observe, to recollect, or to express is impaired by mental disorder may be called before the jury, for it is relevant to the weight to be given to [the witness's] evidence.

31 Secondly, counsel for the applicant submitted, the judge erred in concluding that, if the cross-examination as to addiction were otherwise permissible, there was nothing to be gained from the questions sought to be asked unless defence counsel could point to direct evidence that the complainant was still using heroin while she and the applicant were together in Melbourne.

32 In our view, that submission is also correct. Section 37 is concerned with whether the truth of the imputation conveyed by questions would seriously affect the opinion of the court as to the credibility of the witness on the matter to which the witness testifies. The discretion conferred under s 37 is to be exercised having regard to the questions. The trial wrongly focussed upon the possible answers that might have been given. If the questions satisfied the criteria set out in s 37(a) the judge was not entitled to prohibit the questions because of the anticipated answer. Nor was counsel obliged to indicate the nature and extent of the other evidence that might be called to establish the truth of the imputation.

33 His Honour appears to have reasoned that, because the complainant had previously denied using heroin while she was with the applicant in Melbourne, she would continue to deny it if asked about it at trial; and that, because there was no direct evidence with which to contradict her, it would be futile to allow counsel to ask her. But, with respect, it can hardly ever be a sufficient reason to deny defence counsel the chance to put questions relevant to the credit of a witness that the witness has previously denied what is proposed to be put. Often, there is no direct evidence with which to contradict a witness as to something said at committal. Yet not infrequently the witness says one thing at committal and then another at trial. Hence, it has been said, considerable latitude should be allowed within the confines of s 37, and care should be taken not to stop a cross-examination which, although it may at first appear possibly wide of the point, may subsequently prove to be of value. In accordance with the rule in Browne v Dunn,[9] counsel was obliged to put to the witness any conduct on her part that might ultimately be relied upon that would bear upon whether the witness's evidence should be accepted. This he was obliged to do in fairness to the witness and to the party who called her and to enable the jury to properly assess her reliability and accuracy.

34 If the circumstances were such that it was beyond dispute that any suggestion of drug addiction was totally baseless or implausible[10] the judge could have prohibited the questions. But that was not the case. As defence counsel pointed out to the judge more than once in the course of argument, the complainant had admitted at the committal hearing to being addicted to heroin when she was in Adelaide. It appeared that she was still addicted to heroin when she was in Dimboola. She had admitted to taking methadone in Dimboola in an attempt to overcome her addiction. She had admitted that she had had only four doses of methadone in her attempt while in Dimboola to free herself of her addiction. As counsel on the appeal submitted, there was only a short time between Adelaide and Dimboola and she had stayed only a short time in Dimboola. And then she and the applicant had gone to Melbourne where the offences were alleged to have occurred in the space of a couple of weeks. Given the short time span involved, in our view there was a sound basis to doubt that the complainant could have shaken the habit by the time of reaching Melbourne and, if that were put to her, there was some reason to suppose that she might have admitted that she was still using in Melbourne.

35 Although defence counsel was not obliged to disclose the evidence that he might call, it may have been more helpful in responding to the concerns of the trial judge as to the factual basis for the allegation if he had explained how he might have explored the question as to whether the witness was affected by heroin at any material time. Had he done so, the trial judge may have come to understand that the complainant's denial at committal, if repeated, was not necessarily an end of the matter.

36 Counsel for the applicant on appeal submitted that, in any event, the complainant's admitted addiction in South Australia and Dimboola was capable of bearing directly on her capacity to perceive and recall the significant number of uncharged acts which were alleged to have occurred in South Australia and Dimboola and on which the Crown relied heavily to establish a relationship of violence in the context of which the alleged offences were to be understood. That submission is in our view also correct. As will be seen, the Crown did rely heavily on uncharged acts of violence which were alleged to have occurred in South Australia and Dimboola and, although the complainant's testimony was by no means the only evidence of those acts, it was important.

37 Counsel in oral submissions also contended that the trial judge was wrong to prevent cross-examination as to the allegation that the complainant continued to work as a prostitute when she came to Victoria. He conceded that leave was required as the questions fell within s 37A(2)(a) as they would have been directed to the complainant's sexual activities. It was submitted that leave should have been granted pursuant to s 37A(3)(a), as such evidence as the complainant might have given would have had 'substantial relevance to facts in issue'. As the matters were relevant to a matter in issue it was also contended that the trial judge was in error in relying upon s 37 to prohibit cross-examination. In our view these submissions are also correct.

Ground 1(b)-(e) - Relationship evidence and uncharged acts (rape)

38 Under grounds 1(b) to (e), counsel for the applicant argued that the directions which the judge gave concerning relationship evidence were deficient in critical respects.

39 To put the argument in context, it is necessary first to recall that the Crown opened its case by reference to the relationship between the applicant and the complainant and alleged that the relationship had deteriorated quickly because of the applicant's alleged possessiveness, assertion of control and violence. The prosecutor told the jury that the applicant's behaviour towards the complainant continued to be volatile, possessive and controlling and was observed by a number of guests at the hostel at which they stayed. Some of those guests then gave evidence to that effect. Finally, in his closing address, the prosecutor told the jury inter alia that:

You've also heard evidence about other incidents of verbal abuse, threats of violence, acts of violence that are not the subject of charges. Now, those uncharged matters are relevant only to - like set the context, background, the scene in which you consider the charges.

The evidence of those [un]charged matters provide[s] you with a context in which the charges occurred. Set then in a realistic context. Now, it is a matter for your assessment, ladies and gentlemen, that I suggest to you that the evidence in relation to the charges and in relation to the uncharged matters, is compelling. The background between the accused and [the complainant], understand that was one in which the accused regularly, almost constantly, demanded and asserted possession and control over [the complainant].

It's a background in which the accused regularly verbally abused her, where he made threats to her of violence against her, her children and her ex partner, if she did not comply with his demands. And in particular to prevent her from leaving and there was a background of violence.

All the evidence is one way that there was a continued situation of [the complainant] in fear of the accused and you'll recall the evidence of a number of witnesses.

Now, it is a matter for you, ladies and gentlemen, to suggest that all the evidence points to [the complainant] in the time before she and the accused left Adelaide [and at] the time of all the offences, all points to [the complainant] having understandable and justified fear of the accused.

40 What the prosecutor said to the jury about the evidence of uncharged acts and the nature of the relationship must have left the jury with the impression that such evidence bore upon the probabilities that the applicant committed one or more of the offences charged.

41 In then charging the jury, the judge gave the following directions concerning that evidence:

The third heading that I have got for source or use of evidence relates to the evidence that goes to the underlying relationship between the parties. Of course this is not a matter that is by any means accepted by the defence. Indeed there are two versions of the relationship open, and the Crown puts one version to you and the defence puts a quite different version to you, and this is based on different approaches to the evidence that is before [you], and it a matter for you, of course, to decide what you accept.

This part is not an element. It does not have to be accepted by you beyond reasonable doubt, although I suppose it is a relatively important part of the case, the underlying relationship, and as an important part of the case you should be firmly satisfied about it before you use it against the accused, if that is what you end up doing, but it is not a legal requirement that this be proven beyond reasonable doubt.

...as a general rule in criminal cases bad behaviour or prior convictions or anything in the nature relating to an accused person, is not admissible before a jury. If it does not get in under some other principle it is certainly not gratuitously admitted.

Here it is admitted because it was sought - and in these sort[s] of cases it is sought generally - essential[ly] [so] that you understand the underlying context and relationship that existed between the parties. It would be unrealistic to present the 21 counts in a sterile environment divorced from the underlying relationship that existed between the parties, and so in order that you understand that relationship evidence of it pertaining to it, even though it involves allegations of wrongdoing by the accused, gets before you.

But it is only before you for the very specific purpose of allowing you to understand the context and relationship between the parties that led up to these events that are on the presentment. That is the only reason it is there. It is not there for you to either form any prejudice against the accused, which you must not do, nor is it there for you to reason, improperly as it would be, that because he has done wrong things on other occasions he is the sort of person more likely to have committed the offence that we are dealing with. That is improper reasoning. It is never allowed in our criminal legal system.

The criminal legal system never allows what is these days called propensity reasoning, and that is that because he has done something on some other occasion that is not on the presentment that he is the sort of person more likely to have done so on the occasion that you have got to deal with. That reasoning is never allowed, and you must not adopt it in this case, but you can form your view about the relationship.

Once you have formed your view about the relationship that view may assist you and it may be a guide to you as to the probability or improbability of the offences occurring, and you can use the relationship to help you form your view about whether these offences occurred or not in the way alleged, but you cannot use any view about the accused's propensity.

42 Notwithstanding the way in which the prosecution relied upon such evidence, subject to one matter with which we shall deal under the heading of Ground 1(a), the applicant makes no criticism of that part of his Honour's charge. But the judge then went on with the following further observations, about which the applicant does complain, in these terms:

This is not binding on you but my view, as I see it of the way the Crown would have you view the relationship as opposed to the way the defence would have you view the relationship is as follows...

You may feel that a lot of what you might accept if you accept essentially the Crown version of the relationship, a lot of it goes to violence and threats and assaults and I do not think there is any evidence in the relationship evidence - there might be some mention - it is a matter for you to consider how much you applied into the rape counts anyway, but use your own recollection of the relationship evidence and whether it pertains to sexual violence as well as ordinary violence. That will have to remain a matter for you. It might become more evident when I go through the summary [of] facts.

43 Counsel for the applicant argued that those further observations in effect left the jury unassisted on matters about which they ought to have received unequivocal and binding direction, and otherwise misled them, so as to cause the trial on Count 11 to miscarry. As counsel put it:

• First, they were deficient in that they reduced what ought to have been a direction on law to mere comment, or at best left the jury uncertain about whether what followed was binding on them or not.

• Secondly, they misled the jury by suggesting that there might have been no evidence of previous uncharged sexual violence when in fact, he says, there was some.

• Thirdly, they left the jury at large and unassisted on the issue of how the relationship evidence pertaining to violence could be used in determining whether the complainant had been raped, and unassisted as to how the evidence of uncharged acts of a sexual nature could and should not be used.

44 We reject the first point. As has been seen, the judge directed the jury on relationship evidence in a fashion which was evidently concerned with all facets of the applicant's and complainant's relationship, both violent and sexual, and emphasised repeatedly that such evidence could only be used for the purposes of establishing the nature of the relationship and not as a basis from which to reason that, because the applicant was shown to have committed certain kinds of acts before, be they violent or sexual, he was the more likely to have committed any of the acts with which he was charged. Given that background, his Honour's suggestion that the bulk of the relationship evidence appeared to bear on the alleged violent offences not only would not have left the jury uncertain as to the manner in which they were permitted to use and not use the relationship evidence but is likely to have been of real assistance to the jury in pointing out correctly that the bulk of the relationship evidence was to do with violence as opposed to sexual proclivities.

No misdirection as to significance of uncharged acts

45 We also reject the second point. The judge did not tell the jury that there was no evidence as to the sexual aspects of the relationship. His Honour said that he thought there might be some and that it would become clearer when he summarised the evidence; and it did become clearer in the course of his summary of the evidence when his Honour expressly drew the jury's attention to the complainant's evidence that:

It [sexual intercourse] was never initiated by me, but there were occasions when it wasn't resisted for the sake of keeping the peace, but there were also occasions when it was forced on me.

The judge did direct the jury as to the permissible and impermissible uses of the evidence of uncharged acts

46 We are not persuaded by the third point either. The jury had the benefit of detailed directions on the way in which they could and could not use evidence of uncharged acts. The judge twice told them that, although such evidence could be used as a basis from which to infer the nature of the relationship, they could not reason that, because the accused was shown to have committed the uncharged acts, he was the sort of man who was likely to have committed the charged acts. Short of repeating that admonishment a third time, which in our view would not have been helpful, his Honour could not have done more.

47 Finally, counsel argued that the High Court's recent decision in R v HML[11] meant that the jury in this case should have been directed that they could not act upon evidence of uncharged acts unless satisfied beyond reasonable doubt of the existence of those acts.

Does HML does apply as to the admissibility of evidence of uncharged acts in Victoria?

48 Section 398A of the Crimes Act 1958 was enacted to overcome the High Court's decision in Pfennig v The Queen.[12] It adopted as the test of admissibility of propensity evidence relevant to a fact in issue, whether the court considers that it is just to admit it despite its prejudicial effect, and it expressly provides in s 398A(3) that the possibility of a reasonable explanation consistent with the innocence of the person charged with the offence is not relevant to admissibility. Consequently, prior to HML, the admissibility of uncharged acts evidence in Victoria was taken to be governed by the pre-Hoch[13] common law test of whether the probative value of the evidence sufficiently outweighs its prejudicial effect as to warrant its admission[14] and, therefore, subject to that test, evidence of uncharged acts was admissible in Victoria not only in circumstances in which it amounted to an essential or important step in the process of reasoning to guilt (as would probably be the case if it were evidence of a prior sexual interest in a complainant or of strikingly similar conduct to the charged act), but also in circumstances in which it was not an essential step in the process of reasoning to guilt (such as where it was adduced to make intelligible a complainant's account of the charged acts, or to show that a complainant is not purporting to describe an isolated event or where a complainant's account might otherwise appear implausible).

49 In HML a majority of the court held that, where an accused stands to be tried for a sexual offence in an Australian jurisdiction in which the admissibility of

49 propensity evidence is still governed by the common law,[15] and the Crown seeks to adduce evidence of uncharged sexual acts by the accused towards the complainant in order to show that the accused had a sexual interest in the complainant, the admissibility of the evidence is to be determined in accordance with the test in Pfennig; namely, that the evidence sought to be admitted must support the inference that the accused is guilty of the offence charged and it is open to no other, innocent, interpretation.

50 Three members of the majority (Gummow, Kirby and Hayne JJ) also held that, if evidence of uncharged acts of sexual conduct is admitted, then regardless of the purpose or purposes which the Crown relies upon for its admission, it is necessary to direct the jury that they are not to act on the basis of the uncharged acts unless satisfied that they are proved beyond reasonable doubt. It is convenient to refer to the reasons of Hayne J,[16] who delivered the principal majority judgment, and with whom Gummow J agreed, and the reasons of Kirby J and Heydon J who also rejected the notion that it is permissible to divide the uses to which evidence of uncharged sexual acts may be put.

In cases of the present kind, evidence of other sexual conduct which would constitute an offence by the accused against the complainant shows that the accused had then demonstrated a sexual interest in the complainant, and had been willing to give effect to that interest by doing those other acts. The strength of the connection between the offences being tried and the other acts will be affected by the temporal proximity of one to the other and the frequency of occurrence of the other acts. Generally speaking, however, there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.[17]

If the complainant's evidence of other sexual events and conduct was wholly accepted, it would show that the applicant had committed serious offences against her very many times. Those other offences were of the same kind as those for which the applicant was being tried. As explained earlier in these reasons, the frequency of commission of that other conduct would bear upon the likelihood of the applicant having committed the charged offences. Thus, if the complainant's evidence about other conduct was accepted, it could have constituted a step in reasoning towards guilt , there being no reasonable view of it which would be consistent with innocence. But it would be a step where it would be the probative value of the evidence that worked a disadvantage to the applicant. Its admission would work no prejudice to the applicant over and above what the evidence established."[18]

As appears from what has been said earlier in these reasons, evidence of sexual conduct other than the offences charged is a form of circumstantial evidence. Because its relevance lies in the identity of the parties concerned in both the charged and the other conduct, it is inevitable that all of the evidence is 'intertwined', at least to that extent. But evidence of other sexual conduct is not to be divided into categories according to the nature or extent of that intertwining. The evidence may not be admitted unless it meets the test in Pfennig. If it meets the test in Pfennig, it may, but need not, be used by the jury as a step in reasoning towards guilt . If it is used by the jury as a step in reasoning towards guilt, the jury must be satisfied beyond reasonable doubt of the premise for that chain of reasoning. As explained earlier, the premise for such reasoning will usually have to be spelled out in terms of demonstrated sexual interest and demonstrated desire or willingness to use the complainant as the object of gratification of that interest.[19]

52 Hayne J thus considered that the notion of propensity (or disposition or tendency as his Honour observed it is sometimes called) is in effect so intertwined with the conception of context (or of providing explanations or rendering evidence intelligible) as to make it impractical to give useful jury directions as to the division of uses (or, presumably, as to the application of different standards of proof according to use).[20] Hence, in effect, such evidence must always be approached on the basis that it is propounded for the purpose of establishing propensity (or, more precisely, for establishing that the accused had a sexual interest in the complainant which made it more likely that the accused committed the offence alleged) and, since such evidence must always be approached on that basis, its admissibility must always be determined in accordance with the Pfennig test. Further, his Honour reasoned, since, in order to meet the Pfenning test, evidence sought to be admitted must support the inference that the accused is guilty of the offence charged and be open to no other, innocent, interpretation, it is necessary to direct the jury that they may only use the evidence of other uncharged sexual acts if persuaded of its truth beyond reasonable doubt.[21]

53 Kirby J said that he deferred to what Hayne J had written, but added that, whether one regards the use of uncharged sexual acts as an essential step in the chain of reasoning leading to a conclusion of guilt or alternatively as so intertwined with the charged acts as to necessitate satisfaction to the standard of beyond reasonable doubt, the jury must be directed that they cannot act on evidence of uncharged sexual acts unless they are satisfied of it beyond reasonable doubt.[22] His Honour rejected any broader basis upon which such evidence should be received :

The wider foundations propounded for the admission of such evidence (such as to bolster the credibility of the complainant, or to provide evidence of the general 'context') would not ordinarily meet the Pfennig standard. In my view, such evidence is not admissible simply to provide 'background'. If such a vague criterion were adopted, virtually any evidence of discreditable conduct, uncharged in the information or indictment, would arguably be relevant and admissible in such a trial, because every alleged crime has a 'context'. Such a rule would be destructive of the particularity of the accusatorial trial. It would potentially be most unfair to the accused. It would undermine the proper discipline required of prosecutors in framing accusations. It would be damaging to the jury's central function, namely to return verdicts on the specific charges presented rather than to condemn the accused as a 'nasty' or 'disreputable' person.[23]

Standard of proof: general principles: In his reasons, Hayne J concludes (as I also would) that whether or not evidence of 'uncharged' acts is admissible is not to be determined:

'by asking whether the evidence in question will put evidence about the charges being tried 'in context', or by asking whether it describes or proves the 'relationship' between complainant and accused.'

The mistake involved in this approach is that, if it were endorsed, it would effectively allow any relevant discreditable facts to be tendered against an accused simply because such evidence threw some light on the 'context' of the offences. The risks of unfairness inherent in such an approach are obvious. The purpose of adopting the more stringent approach set out in Pfennig is to obviate, or at least minimise, such risks in cases of the present kind.[24]

54 Heydon J, although in the majority, expressly declined to determine whether the Pfennig test did apply or whether the jury had to be directed that the standard of proof applicable to evidence of uncharged sexual acts was proof beyond reasonable doubt.[25] But he expressed the emphatic view that such evidence should not be received on a broader basis:

In Phillips v The Queen, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said of the Pfennig test:

'[T]he test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.'[26]

The need to assume that the similar fact evidence will be accepted is supported by the following passage in Hoch v The Queen:

'The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged'.[27]

55 His Honour observed in passing that there was much to be said for the argument that evidence of uncharged sexual acts was not admissible if tendered for the sole purposed of explaining a failure to complain;[28] that, whether or not evidence of uncharged sexual acts is tendered for the purpose of establishing the accused's disposition, it will very often have that effect.[29] In the following passage Heydon J also emphasised the likelihood that evidence introduced on the limited basis of 'context' or as going to the 'plausibility' of the complainant's account, will be used as part of the process of probability reasoning:

But the uncharged acts evidence relied on to give background or context would be irrelevant and hence inadmissible unless the evidence rendered probable the existence of the charged act, or a fact relevant to a charged act. If the daughter's evidence of the charged acts in Adelaide stood alone, her account might be highly incredible. But it is less incredible when considered against the background of her father's past behaviour towards her. Background evidence 'does support the guilt of the accused, by making the complainant's account of the assaults charged more believable'. Hence the jury are asked to make findings about whether the uncharged acts occurred. The question is not whether the daughter believed or imagined they occurred. The evidence about the uncharged acts is pointless unless it tends to establish that they actually did occur. The question can be expressed by asking whether the Adelaide incidents happened 'out of the blue': if prior sexual conduct by HML took place, they did not happen out of the blue; if it did not take place, they did happen out of the blue. To use the language of the proposed directions, the uncharged acts would not provide 'context', nor assist in assessing the daughter's evidence as plausible or implausible or as hanging together, unless it was thought that they had taken place. There would be no point in debating the standard of proof applying to the uncharged acts (and it is another part of HML's argument that the standard of proof is satisfaction beyond reasonable doubt) unless the prosecution were trying to prove the uncharged acts, and the defence trying to disprove them or cast doubt on them.[30]

56 The three members of the minority (Gleeson CJ and Crennan and Kiefel JJ) were, however, all opposed to that view. Gleeson CJ approached the matter on a conventional basis and, consistently with existing authority, concluded that there is no general principle that whenever at a criminal trial the prosecutor sets out to prove as a fact relevant to a fact in issue that some criminal conduct occurred, that fact must be established beyond reasonable doubt. Generally speaking, his Honour said, it is ordinarily neither necessary nor appropriate for a trial judge to give separate directions about the standard of proof of uncharged acts unless the evidence is an indispensable link in reasoning towards guilt or where it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant's evidence as to uncharged acts and as to charged acts.[31]

57 Crennan J, considered that the Pfennig test does not apply to evidence of a relationship put forward as the context which explains the charged offences or makes them intelligible. Consequently, as her Honour reasoned, once a prosecutor demonstrates that the evidence of uncharged acts has a relevance beyond merely demonstrating propensity and disavows use of the evidence as propensity evidence, the test for admissibility is the basic criterion referred to in Hoch and Pfennig, which requires asking whether the probative value of the evidence outweighs its prejudicial effect, whether that is specifically grounded in Boardman[32] or more generally in R v Christie.[33] It followed her Honour held that, unless proof of uncharged acts is an essential link in a chain of reasoning to guilt, it is not necessary nor appropriate to direct a jury that they must be satisfied of uncharged acts beyond reasonable doubt.

58 Kiefel J also approached the matter on a conventional basis and, consistently with previous authority, held that relationship evidence propounded for the purpose of providing answers to a jury to questions which might fairly be expected to arise in the minds of the jury (for example, as to why the complainant did not rebuff the accused or showed no signs of distress or resentment) does not involve the use of any tendency of the accused in the reasoning of the jury. In such circumstances, her Honour said, it would be admissible without satisfying the Pfennig test provided its probative value outweighed its prejudicial effect. Similarly, provided the jury is directed as to the limited use which they can make of the evidence, it is ordinarily neither necessary nor desirable to direct them specifically as to the standard of proof which applies to that evidence. On the other hand, where evidence of previous uncharged sexual acts is propounded to establish propensity, the Pfennig test applies to its admissibility[34] and the jury must be directed that they may only find that the accused had a sexual interest in the complainant if that is proved to their satisfaction beyond reasonable doubt.[35]

59 In face of the competing views expressed in HML, we respectfully understand the ratio of the decision to be limited to this: that where evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig,[36] and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in the complainant unless satisfied of that beyond reasonable doubt.

60 Despite the strength of the judgments of Kirby and Hayne JJ (and thus of Gummow J) and the observations of Heydon J, as to the need for uncharged sexual acts to be proved beyond reasonable doubt in jurisdictions where Pfennig provides the criteria for admissibility, the majority of judges in HML did not express any clear view as to whether uncharged sexual acts must always be proved beyond reasonable doubt.

61 We further observe that two members of the majority (Kirby and Heydon JJ) expressly limited the decision in HML to jurisdictions in which Pfennig is still the law and, on one view of Hayne J's reasoning, his Honour's conclusion was similarly limited.[37] If we may say so with respect, it appears more likely that his Honour's reasoning was intended to apply to all Australian jurisdictions. But even if that is so, as a matter of stare decisis we consider that the ratio of the decision must still be understood as limited to Pfennig jurisdictions.[38]

62 With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts.[39]

63 If so, it follows that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish a propensity to commit acts of the kind which are charged or merely for contextual and explicative purposes of the kind adumbrated by Crennan and Kiefel JJ in HML.

64 Prior to HML, the position under the pre-Hoch test which applies in Victoria was that:

1. The Crown was not to be permitted to rely on evidence of uncharged acts as establishing a propensity to commit acts of the kind charged unless the uncharged acts were strikingly similar to the charged acts or it was otherwise possible to discern such an underlying unity between the uncharged acts and the charged acts as to make coincidence an affront to common sense.[40]

2. If the Crown satisfied that test and was thus permitted to rely upon evidence of uncharged acts as evidence of propensity to commit offences of the kind charged, the jury had to be directed that the uncharged acts as well as the charged acts must be proved beyond reasonable doubt.[41]

3. The Crown was permitted to rely on evidence of uncharged acts for a purpose other than establishing propensity to commit offences of the kind charged (for example, to make intelligible a complainant's account of the charged acts, or to show that a complainant was not purporting to describe an isolated event or where a complainant's account might otherwise appear implausible) if the probative value of the evidence for that purpose so much outweighed its prejudicial effect as to make the receipt of the evidence just.[42]

4. If the Crown satisfied that test, and was thus permitted to rely on evidence of uncharged acts for such a purpose only, but not for the purpose of establishing a propensity to commit offences of the kind charged or as making it more likely that the accused committed the crime (probability reasoning):

a) the judge would ordinarily have directed the jury that they may only use the evidence for the purpose for which it has been admitted and for no other purpose; that the offences charged can only be proved by the evidence relating to those charges and not by evidence relating to the uncharged acts; and that they are not to reason from the evidence of the uncharged acts that the accused is the sort of man who is likely to have committed the offence charged;[43] and

b) in this circumstance, the judge was not required to give separate directions about the standard of proof applicable to that evidence.[44]

65 Now because of the limited ratio of HML, it appears that the position in Victoria remains largely the same. But having regard to what was said by Kirby, Hayne (and thus Gummow) and Heydon JJ, as to the likelihood of a jury treating uncharged sexual acts as evidence of propensity (regardless of the purpose for which it is tendered or the directions which may be given as to its use), we consider that there is one critical difference. Pending further guidance from the High Court, 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.

66 We do not consider that the same applies to uncharged acts of a non-sexual nature. Apart from jurisdictions in which Pfennig still applies, nothing which was said in HML appears to us to question existing law as to the purposes for which evidence of uncharged acts of a non-sexual nature may be tendered, or as to the directions which a trial judge should give to the jury concerning the use which may be made of such evidence and the standard to which such uncharged acts must be proved.

67 It follows in our view that, until and unless the High Court says otherwise, in the case of uncharged non-sexual acts a judge is not required to give a separate direction about the standard of proof applicable to that evidence unless the judge perceives that there is a real risk of the jury using that evidence as an important step in their process of reasoning to guilt. In that event, the jury should be directed that they should not rely on the evidence for that purpose unless satisfied of its truth beyond reasonable doubt. Where no such risk is perceived, no such direction about the standard of proof of the uncharged non-sexual acts need be given.

68 In this case the Crown did not seek to rely on any of the evidence of uncharged acts as demonstrating a propensity to commit acts of the kind which were charged. The purpose of the tender was confined to making intelligible the complainant's account of the charged acts and to show that the complainant was not purporting to describe an isolated event. The judge was persuaded that the probative value of the evidence for that purpose sufficiently outweighed the prejudicial effect of the evidence as to make its receipt just, and no criticism is made of that decision. His Honour gave a clear separate counts direction and, for the reasons which we have given, we consider that his Honour gave an adequate warning that the jury were not to treat the uncharged acts as evidence of propensity to commit the charged acts.

69 In our view, this was not a case in which it appeared that the jury were likely to use the evidence of uncharged acts as an essential step in a process of reasoning leading to a conclusion of guilt. As has been seen, there was barely a passing reference to the possibility of previous non-consensual sexual intercourse, and this was a case in which consent was in issue. Virtually all of the evidence of uncharged acts was of previous acts of violence and the whole tenor of the Crown case was one in which the charged offences were to be seen against a background of violent behaviour. In such a context, it does not seem to us at all unrealistic to conclude that the jury would differentiate between the complainant's evidence as to the uncharged acts and her evidence as to the charged acts, in the way they were directed to do.

70 It follows in our view that in this case it was neither necessary nor desirable for the judge to warn the jury that they were not to act on the evidence of uncharged acts unless satisfied of the commission of the uncharged acts beyond reasonable doubt.

71 As has been seen, the judge in fact directed the jury that they did not have to be satisfied of the uncharged acts beyond reasonable doubt. In our view, it would have been better if his Honour had not done so and it is not a practice which should be repeated. But it has not been suggested that it was productive of any problem and in any event it was not a misdirection. Subject to what has been said about HML, it is the offence which is charged and not the surrounding facts which must be proved beyond reasonable doubt,[45] and the judge was clear in his directions that each element of the charged offences had to be so proved.

73 For the reasons we have given, we consider that the judge erred in refusing to allow defence counsel to cross-examine the complainant on her heroin addiction in Dimboola and Melbourne. We consider that the judge also erred in refusing to permit cross-examination as to whether the complainant was working as a prostitute during periods to which the counts on the presentment related. In our view, the answers which the complainant may have given if examined about those matters could have made a difference to the jury's decision.[46] This is not a case in which it would be appropriate to apply the proviso, since the assessment of the complainant's reliability as a witness was critical to the jury's verdict and without the questions about her addiction or work as a prostitute being asked and answered, it is impossible to say what the effect would be. Accordingly, we would set aside the convictions and order that a new trial be had.

[1] Count 2 was an alternative count of recklessly causing injury.

[2] Count 4 was an alternative count of recklessly causing injury.

[3] Count 18 was an alternative count of recklessly causing serious injury.

[4] As the application for leave to appeal was originally constituted, it was contended that the judge had erred in that ruling. That contention was abandoned before the hearing of the application but was revived during oral argument .

[5] Heydon, Cross on Evidence [17950].

[6] [1965] AC 595.

[7] Section 37 of the Evidence Act 1958 provides that:

If any question put to a witness upon cross-examination relates to a matter not relevant to the suit or proceeding except in so far as it affects the credit of the witness by injuring his character it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may if it thinks fit warn the witness that he is not obliged to answer it. In exercising this discretion the court shall have regard to the following considerations -

(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(b) such questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree only the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness' character and the importance of his evidence.

[8] [1986] HCA 49; (1986) 161 CLR 315, 322.

[10] Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213, 220-1 (Windeyer J); R v Slack [2003] NSWCCA 93; (2003) 139 A Crim R 314, 323 [31] (Sheller JA).

[11] [2008] HCA 16; (2008) 245 ALR 204.

[12] [1995] HCA 7; (1995) 182 CLR 461.

[13] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292.

[14] R v Best [1998] 4 VR 603, 607, 611; R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 416 [18]-[21]; R v Dupas (No 2) [2005] VSCA 212; (2005) 12 VR 601, 605 [10] and 625 [78].

[15] [2008] HCA 16, [54] (Kirby J), [106], [112], [113] and [132] (Hayne J), and [288] and fn 227 (Heydon J).

[32] Boardman v DPP [1975] AC 421.

[33] Christie v R (1914) 10 Cr App R 141.

[36] Namely, that the evidence sought to be admitted supports the inference that the accused is guilty of the offence charged, and the evidence sought to be admitted is open to no other, innocent, interpretation.

[37] [2008] HCA 16, [54] (Kirby J), [106], [112], [113] and [132] (Hayne J), and [288] and fn 227 (Heydon J).

[38] Great Western Railway Company v Owners of SS Mostyn [1923] AC 57, 73 and 74; Victoria v The Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 382; Federation Insurance Ltd v Watson & Ors [1987] HCA 34; (1987) 163 CLR 303, 314; Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18, 37.

[39] [2008] HCA 16, [32] (Gleeson CJ).

[40] BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 283; R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 418 [25].

[41] Gipp v The Queen (1998) 194 CLR 106, 132 [76] (McHugh and Hayne JJ) ; R v HML [2008] HCA 16 [506] (Kiefel J).

[42] R v Vonarx [1999] 3 VR 618, 622 [13]; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 233 [31] (McHugh J); R v HML [2008] HCA 16, [505] (Kiefel J).

[43] R v Grech [1997] 2 VR 609, 614 (Callaway JA); R v DCC [2004] VSCA 230; (2004) 11 VR 129, 131 [2] (Callaway JA); cf KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235 [39] (McHugh J).

[44] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 584-585 (Dawson J); Gipp v The Queen (1998) 194 CLR 106, 132 [79] (McHugh and Hayne JJ); R v HML [2008] [31]-[32] (Gleeson CJ, in diss); [477] (Crennan J, in diss).

[45] Gipp v The Queen (1998) 194 CLR 106, 133 [79] (McHugh and Hayne JJ).

[46] R v Rajakaruna [2006] VSCA 277; (2006) 15 VR 592, 608-9, [52]-[55].