R v Taylor [2004] VSCA 98

16. The events which constituted count 3 on the presentment occurred before Easter of the year 2000. Between the events which had happened in September 1999 and the events which constituted count 3, it would seem that the complainant continued to choose the applicant as the one in whom she would confide. She said that, notwithstanding the events of September 1999, she continued to trust the applicant because he was the only adult in her life to whom she "could relate". She said that she still "trusted" the applicant because he had told her that he would not do "those things again". Nevertheless, she said that during a period of approximately a week before Christmas 1999, whilst she was staying with the applicant and his wife, he would make "little advances" towards her by rubbing her legs in the absence of his wife or other people. In re-examination, the complainant elaborated on these events, saying that he had touched her "high up" on the inner thigh. Between Christmas 1999 and March/April 2000, she said that the applicant would ring her to speak to her early in the morning and would do so at regular intervals; approximately three or more times per week. She said that she was having "a few problems at the time" and found it "really easy to talk to him". Her mother and stepfather would leave for work early in the morning and she was in the house by herself before going to school. From time to time the applicant would ask her if he could come over to her house in Cranbourne to talk with her; and it appears that upon some five or so occasions between the commencement of the year 2000 and Easter time he visited her in the absence of her parents. On the last of those occasions, which she described as being in March or April (but before Easter) he had arrived at about 7.30 a.m. whilst she was alone in the house. He was sitting on a stool in the dining room whilst she was washing the dishes. He called her over and he started to kiss her. She said that he kissed her "on the lips" and then he started to touch her breasts underneath her top and bra and he was "rubbing his groin against my stomach". He then lifted up her top and her bra and commenced to lick and suck her breasts. She said that she "tried to get away" and that she did not want him to do it and wished to forget it. After this had happened, she said that he asked her if, when she was 16, she would let him give her an orgasm. She said that she had no real understanding of what that meant. She put an end to these events, which were the allegations constituting count 3 on the presentment, by telling him that he had "better go"; and he then left and went to work. She said that that was the last occasion upon which the applicant had interfered with her because she had "put a stop to it" by making excuses and telling him that he could not come over.

19. The evidence demonstrates that the complainant did not complain about the events which she described until later in the year 2000. It would seem that her relations with her mother deteriorated to the point where she left school and travelled to Benalla where she lived with her uncle and aunt. She said that she did this because she could no longer get on with her mother and their relationship was such that she could no longer live with her. When her mother ultimately contacted her to ensure that she came home and went back to school, she then told her mother about the applicant's sexual molestation of her. It was put during the course of cross-examination that she had only raised this matter as a "ploy" to prevent her mother bringing her back to Cranbourne. She agreed that she was enjoying her "freedom" whilst staying with her relatives in Benalla. In the long run there were a number of concessions made during the cross-examination of the complainant which were capable of reflecting upon her credit and thus diminishing the quality of her evidence. Those matters included some discrepancies between the evidence which she was giving and the evidence which she had previously given at the committal hearing and statements she had made to the police. There was a letter written by her to the applicant in "glowing terms" which she first conceded was written by her "probably in or about December 1999"; a concession which she later retracted - saying that she did not know when she had written the letter.

22. The applicant did not give any evidence at the trial; but relied upon the statements which he had made in a record of interview with the police. In that record of interview he conceded that he had been very fond of the complainant; freely conceded that he frequently made short telephone calls to her in the morning from his truck whilst he was working; and further conceded that from time to time he would call upon her at her premises in Cranbourne. He said that he did this because he was aware that the complainant was getting little comfort or guidance from her mother; and that her relations with her stepfather were not good. He also knew that the complainant's natural father had taken no interest in her for some time. It was completely untrue, he said, to suggest these telephone calls to the complainant were anything more than checking up on how she was; and he pointed to the fact that they were all very brief. Likewise, he said, his few visits to the complainant in the morning were solely governed by the fact that he happened to be working in the location; and that those visits were, likewise, brief. His denials of sexual molestation of the complainant were quite emphatic. As his Honour told the jury:

"So there you have the accused with no hesitation or prevarication discussing the nature of the phone calls with the detectives. He further says: `Her mother, Julie, and myself knew that [the complainant] used to confide in me and she had someone to turn to and her mother was quite happy about that until [the complainant] ran away from home and the reason she ran away from home, her mother does not even know about.' "

26. In the course of his directions to the jury, his Honour said the following:

"Your evaluation of the credibility of the complainant in this case as a witness is, of course, a critical factor in this case ... . Are you satisfied she was truthful? Are you satisfied she was accurate? As a matter of commonsense, that will involve you in subjecting her evidence in relation to each count and generally to careful scrutiny. It will not have escaped your notice that in relation to the evidence of each count, there being no outside observer of what the complainant said occurred, it is in that regard the complainant's word against the accused's denials. It is only commonsense in such circumstances for you to consider whether there is any evidence in the case you are prepared to accept and act upon that in your view confirms and supports, in relation to a count, what the complainant said occurred. Now, the law does not say you must find such evidence that supports and confirms the complainant before a guilty verdict on a count can be returned. However, you may feel in its absence in relation to a count, faced with the accused's denials, it would be unsafe to convict on such count. However, let me repeat so there can be no misunderstanding: The law does not say you cannot convict on a complainant's evidence standing alone, even if you find no evidence that supports and confirms her, that is evidence other than that that comes from the complainant's own mouth. Naturally - and I think at least one of the counsel used the word `corroboration'; I use the phrase confirms and supports - naturally, you will examine her evidence with care, and even though you find no evidence that confirms and supports her, it is open to you in law to act upon her evidence alone and return a verdict of guilty where you are satisfied of guilt beyond reasonable doubt."

30. Towards the end of his Honour's charge, the prosecutor suggested to him that, if he was going to invite the jury to look for "confirming or supportive evidence", independent of that of the plaintiff, then he should further direct the jury whether there was any evidence capable of amounting to such "confirming or supportive evidence" or tell them that there was none. A lengthy discussion between his Honour and counsel followed, the details of which do not need to be rehearsed, but which illuminates the apparent difficulties which the changes in practice and procedure - now encapsulated in s.61 of the Crimes Act 1958 (Vic. ) - had caused to both judge and counsel. At the end of the discussion, his Honour agreed to redirect the jury in respect of this matter and then told counsel what he proposed to say. Counsel agreed with the form of redirection which his Honour proposed to give. When the jury were recalled to court, his Honour gave them the following direction:

"You will recall, when I was discussing the matter of the assessment of witnesses, I said to you you may feel, in the absence of evidence independent of the complainant that supports and confirms her evidence, it would be unsafe to convict the accused. Now, you have heard both counsel submit there is no such evidence in relation to counts 1 and 2. In relation to count 3, [the prosecutor] submitted the evidence of the telephone calls recorded in the Telstra records, that is exhibit A, and the visits by the accused to the complainant's home when her mother was absent, a fact the accused admits in his record of interview, thus coming from a source independent of the complainant, does confirm and support the complainant's evidence on count 3, in relation to what she says the accused did to her, and I will not repeat those arguments. You will recollect that [defence counsel] submitted such was not so and you should not draw such conclusions from that evidence and, once again, I shall not repeat the arguments he addressed to you in that regard. Now, can I, as the judge, indicate to you that such evidence is capable and I underline the word `capable', of confirming and supporting the complainant's evidence in relation to count 3. Now that is as far as I go. You decide the facts, not me. Consequently, it is for you to say whether you accept such evidence and are prepared to act thereon and whether such evidence, in your judgment, does or does not, in fact, confirm or support the complainant's evidence in relation to the acts relied upon by the Crown in relation to count 3. Even if you so find it does, that does not complete the matter, because you must, even taking that evidence into account, still be satisfied beyond reasonable doubt that the Crown has proved all elements and the guilt of the accused before a verdict of guilty can be returned. Now be on your guard lest you fall into the trap of saying: `Well, the judge said it is capable of confirming and supporting, therefore it must be so.' Now, that would be an entirely wrong approach and contrary to your oath. Merely because I say such evidence is capable does not mean it does in fact. Whether it does, in fact, confirm and support is for you to find. That is your finding exclusively, not mine, and you remember no one must usurp your function in this trial. It is not my function to find the fact, merely to point to a source of evidence that is capable. You will recollect counsel were agreed that there is no evidence in this case that is capable of confirming and supporting the complainant's evidence of the acts she alleges in counts 1 and 2. As the judge, I do inform you such is the case. There is no independent evidence in this trial capable of supporting the complainant's evidence in relation to the occurrence of the acts alleged in counts 1 and 2."

35. I have referred to sufficient of the events which occurred at the trial to shed light on the main issues raised in these applications. The application for leave to appeal against conviction asserts that:

"The verdict was unsafe and unsatisfactory and that the learned judge erred in directing that there was corroboration."

The application for leave to appeal against sentence complains that:

"The sentence was manifestly excessive and that the learned sentencing judge failed to have regard to the principles of totality and ... erred in the application of the provisions relating to serious sexual offenders."

At the outset of the hearing of the application, Mr. Priest, who appeared with Mr. Croucher for the applicant, informed the Court that he would divide the ground specified in the "conviction application" into two separate grounds; namely:

2. That the learned judge erred in directing that there was corroboration.

He also applied for leave to add a further ground in the following form:

3. That the trial judge erred in the directions to the jury in that he failed to relate the directions as to uncharged acts and propensity to the evidence left as corroboration.

The Court permitted the applicant to address argument in relation to the proposed ground 3, but reserved to itself the decision whether it would grant leave to amend the grounds in the manner sought.

48. It was submitted, on behalf of the applicant, that the trial judge was in error in directing the jury that the evidence of repeated telephone calls from the applicant to the complainant in early 2000, together with periodic visits to the house whilst she was alone, was evidence capable of supporting the complainant's evidence. I have earlier referred to the nature of his Honour's directions in this respect at paragraph [8]. Counsel submitted that neither of these pieces of evidence was capable of amounting to "supportive evidence" because they do not show "that the story of the complainant that the applicant committed the crime is true". Reference was made to R. v. Baskerville[1] and Doney v. R.[2]. Counsel contended that, at best, the evidence so left to the jury as "supportive evidence" was "intractably neutral"; and did no more than arouse suspicion. Further, it was put that the evidence could not be regarded as "more consistent with guilt than with innocence" and that - if that was so - it was not capable of amounting to corroboration. Indeed, it was contended that the suggested impact of the so-called telephone conversations and the applicant's attendance at the house were in several respects inconsistent with the complainant's version of events generally. Rhetorically, it was asked "Why would the complainant allow these calls and visits during this period if she had been molested by the applicant on the two occasions in 1999, which constituted counts 1 and 2 on the presentment?" Furthermore, it was said that the complainant herself had given evidence that the telephone conversations did not involve any inappropriate detail. In the light of these circumstances it was submitted that the objection taken by trial counsel for the applicant was well founded; namely that the evidence was not capable of amounting to corroboration. Although it was submitted that trial counsel for the applicant had objected to the impugned evidence going to the jury as evidence capable of lending support to the complainant's testimony, it is not entirely clear that that assessment is correct. It is true that when the trial judge first asked the applicant's trial counsel whether such material was capable of supporting what the complainant said had occurred to her, counsel said:

"Well in my submission, no. No more than evidence for example, that [the complainant] used to stay at the accused's house in 1999 is evidence that is capable of amounting to corroboration."

His Honour said, and defence counsel agreed, that the Crown was contending that it was open to the jury to find that the applicant's behaviour was "strange behaviour in a grown man"; namely to be making contact with a child in the circumstances in which he did. Trial counsel rejoined that the telephone calls, on the complainant's own "say so", did not contain anything objectionable or improper and that the visits to the house were "invited visits". Following further submissions and discussions between counsel and judge, trial counsel submitted that the evidence could not corroborate or support the allegations of what were said to have occurred in September 1999 but that:

"It corroborates the fact that he was there in March or whatever - February/March in unusual circumstances, but it doesn't do anything of the sort in respect of the counts that relate back to September 1999."

Those exchanges were followed immediately by the judge saying to counsel:

"No, those circumstances don't exist in relation to the first two counts; is that what you say?" Counsel: "Yes, that's what I say, your Honour." His Honour: "But can be isolated to relate exclusively to the third count?" Counsel: "Yes, your Honour."

56. Following the exchanges to which I have referred in the preceding paragraph, his Honour ruled that, although the issue was not "free of difficulty" he was satisfied that the evidence of the telephone calls and the evidence of the attendances at the house preceding the events relating to the third count was evidence "that the jury could be told is capable of corroborating the complainant's evidence in relation to the third count", but that it fell into a "specific category of time and circumstance that relates exclusively to the third count". Such evidence was not capable, in his Honour's view, of corroborating the first or the second counts.

59. In my opinion, his Honour was correct to leave the evidence of the telephone calls and visits during the three month period leading up to the events which constituted count 3 to the jury as evidence capable of supporting the complainant's accounts of what occurred in respect of those events. Corroborative or supportive evidence is not evidence which proves the complainant's account in respect of an offence to be true; the essence of such evidence is that it is evidence coming from a source, independent of the person to be supported, which renders that person's evidence, in a material particular, more probable in the sense that it tends to show not only that the crime charged was committed but that the accused was involved in its commission[3]. It is not evidence or material which should replicate the evidence to be corroborated. As Brooking, J.A. said in R. v. Rayner[4]:

"Corroboration does not require the corroborator to be a `fly on the wall' : what is needed is independent testimony which affects the accused by connecting or tending to connect him with the crime."

See also Doney v. The Queen[5]. The point was made recently by this Court in the case of R. v. Lindsay Martin[6] in the judgment of Vincent, J.A. at [36]. His Honour was dealing with evidence capable of corroborating an accomplice. Having referred to the well known statement of Lord Simon in R. v. Kilbourne[7] that:

"Corroboration is ... nothing other than evidence which `confirms' or `supports' or `strengthens' other evidence ... . It is, in short, evidence which renders other evidence more probable."

"Corroborative evidence may be circumstantial or direct. Its real force is not [only] derived from such considerations, ... but also from the fact that it comes from a source independent of the witness concerned. The value of the evidence is increased because there is support for its truth and reliability from a separate and more trustworthy source."

67. In evaluating the submissions of counsel on this application, it must be recognized that the trial judge is the person best equipped to determine whether certain evidence is capable of supporting or confirming the testimony of a witness whose evidence needs to be corroborated. The question whether a large number of phone calls made by an older man, within a limited period, to a young girl alone in her house, together with periodic visits to that girl whilst she was alone in that house, could support the evidence of that girl in respect of subsequent sexual molestation, is a matter best determined by an experienced trial judge familiar with the atmosphere of the trial. The applicant submits that the evidence which was left to the jury was "intractably neutral" in the sense that it could not be regarded as more consistent with guilt than with innocence. In those circumstances, it was submitted, it was incapable of amounting to supportive evidence. For my own part, I do not regard the evidence to be "intractably neutral" whatever that may mean. If it means evidence that can never be regarded by the jury as confirming the complainant's evidence, then I do not believe that this evidence falls into that category. The mere fact that it might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration. There can be no doubt that circumstantial facts can combine to provide evidence supportive of that of the person required to be corroborated, in as much as they may amount to circumstances leading to an inference that it was probable that advantage would be taken of an opportunity presented, or to show that the misconduct alleged was probable[8]. For example, evidence of distress, or injury to, or torn clothing of a girl complaining of having been raped is often left to juries as evidence capable of providing corroboration even though it is equivocal per se. That, of course, does not mean that the evidence is not capable of being corroborative; all it means is that it is a question for the jury to determine whether it is corroborative or not. That, as it seems to me, is the essence of this case. The evidence does not cease to be capable of being corroborative or confirmatory by reason only of the fact that it is not independent evidence "unequivocally referable" to the commission of the crime. As McPherson, J. said in the case of Berrill[9]:

"As a matter both of authority and principle it seems to me to be wrong to say that evidence is necessarily to be treated as without corroborative value simply because it's capable of giving rise to two or more inferences. Such evidence may, as was recognized by the court in Baskerville, be and often is circumstantial in form and a circumstance is rarely such as to point unequivocally in only one direction particularly as regards a state of mind like consent. If the item of corroborative evidence were to do so unequivocally and without reference to or reliance upon the testimony of the complainant, it would mean that her testimony would not be essential to the case, it would be merely confirmatory of other independent testimony. ... In the case of rape and in particular with respect to the element of absence of consent, the corroborative evidence, commonly proffered, of distress or injury to the person or clothing of the complainant, is almost invariably circumstantial and therefore frequently susceptible of more than one explanation. ... Whether it in fact bears the interpretation placed on it by the prosecution is a matter of inference, and as such, a matter of fact for the jury to whose decision it shall ordinarily be left, but with the appropriate warning. ... For the judge to withdraw it from the jury simply because some possible alternative inference is open, involves a usurpation of the jury's function and obscures a distinction which exists between evidence which is capable of affording corroboration and that which does so."

With respect, I adopt his Honour's view in this regard, as did the Court of Crimimal Appeal in New South Wales in the case of Andrew Peter Kalajzich & Anor[10]. The Court said that the foregoing passage in the judgment of McPherson, J. in Berrill's case "exposes the fallacy of many of the arguments advanced in the present case which depend upon the submission that some of the matters left as capable of being corroboration could not have that character because they necessarily presuppose the truth of the evidence of the person whose testimony the Crown sought to have them corroborate". Their Honours also said that they were not prepared to accept the view of Bray, C.J. in the case of Lindsay[11] that "nothing consistent with both the case for the prosecution and the case for the accused can amount to corroboration". Indeed, as Jenkinson, J. pointed out in R. v. Nanette[12] :

"If in sexual cases the rule is that corroboration is required of an element of the charge which is in issue, it must be borne in mind that the rule does not extend to merely evidential issues. Evidence that the prosecutrix's clothing was torn after a period in the accused's company is not rendered incapable of affording corroboration by an accused's assertion that the garment was in that torn condition when he first met her, or that he tore it accidentally whilst disrobing her during consensual sexual interlude."

73. It is, in my view, a mistake to think that evidence which is "neutral", in the sense that it is consistent both with the case being made by the Crown and the case being made by the accused, loses its capacity to be corroborative evidence. As Thomas, J. (with the agreement of Connolly, J.) said in the case of R. v.McK[13]:

"I am unable to see why a party should be permitted to render evidence inadmissible or unusable by admitting it or part of it to be true. Such evidence may be consistent with both cases, but it is for the jury to say whether it regards the evidence as corroborating the complainant's evidence or not ... What is required is corroboration of the complainant's story in a material particular. ... What was needed having regard to the issues in the present case was evidence tending to show that the complainant's evidence was true ... Corroborative evidence does not itself need to prove the whole case or even a specific element. ... It was also submitted that such evidence should not go to the jury as evidence capable of corroboration if such evidence is as consistent with the defence case as it is with the prosecution case. There is not such a rule."

77. Thus, it seems to me to be clear from the authorities that it is not necessary that "supportive evidence" be consistent only with the prosecution case, or indeed be more consistent with that case than with the case for the defence - even if such a conclusion could be reached. R. v. Baskerville (supra) is itself a prime example of that, because the written note there relied upon was, arguably, as consistent with the case made by the accused as it was with the case made by the Crown. As is commonly said, circumstantial evidence usually does give rise to competing inferences[14].

80. It follows that, in the face of the authorities to which I have referred, I cannot agree with the submission made to this Court that the evidence of the persistent telephone calls and visits to the complainant's house made by the applicant in the period preceding the events alleged in count 3 (calls and visits made when the girl was alone) was incapable of confirming or supporting the evidence of the complainant in respect of those events. The jury was entitled to find that this evidence strengthened the evidence of the complainant by demonstrating that the applicant had a predilection towards the complainant and was taking advantage of her isolation and "setting up" an opportunity to engage in the predatory conduct which was the subject of the relevant count on the presentment. It was well open, in my view, for the jury to conclude that the applicant's conduct, in the circumstances revealed, went beyond mere suspicion and was supportive, in the relevant sense, of what the complainant said that the applicant had done to her. Nor can I agree that the impugned evidence was "intractably neutral" in the sense in which that term has been used in the authorities put before us[15]. It was, in my opinion, open to the jury to find that it tended to connect the applicant with the crime in that it was more consistent with the guilt of the applicant than the innocent interpretation which the applicant sought to put upon it in his record of interview with the police. If the evidence had the attributes, which I perceive the jury was entitled to find that it had, then it could not be described as "intractably neutral" as that term has been used in Kerim's case[16], and R. v. Pisano[17]. As I understand that term it means that the evidence is of such an equivocal character that it lacks the capacity to enable a reasonable jury to conclude that it connects or tends to connect the accused to the crime charged. Thus it was said by the majority judges in Kerim (supra) that the medical evidence, demonstrating that the 15 year old complainant had a ruptured hymen, could not, in the circumstances of that case, confirm the complainant's evidence that she had been raped by the accused. Its "intractable neutrality" thus derived from the fact that the evidence was incapable of being evaluated by the jury as evidence tending to connect the accused to the crime charged. However, evidence of such a character is to be distinguished from evidence of identifiable behaviour which, even though conceded by the defendant, can be assessed and evaluated by a reasonable jury as evidence which may, or may not, demonstrate a connection between the accused and the crime charged. It is this latter type of conduct which the jury was asked to assess in this case; and it was evidence which, as I have said, was capable of strengthening the complainant's evidence in respect of the events relating to count 3.

83. For the reasons stated, I would reject ground 2. I would add only this : that in my view it was unnecessary for the trial judge to have given a warning of the type which he did in the circumstances of this case. It appears from the transcript that his Honour believed that it was necessary to give such a warning "in the interests of fairness" because this was a case, essentially, of "word against word". Although such a reason smacks of the reversion to the practice and procedure which preceded s.61 of the Crimes Act and its predecessors, his Honour took the view that the warning which he proposed to give was justified by sub-s.(2) of that section. As this Court said in R. v. Miletic[18]:

"If the circumstances of the particular case, other than the sexual character of the complaint, call for a warning, then the provisions of sub-s. (2) of the section enable such a warning to be given. The reference to `the interests of justice', the context and the legislative history show that `comment' in that sub-section includes a binding direction and is not confined to a comment on a par with counsels' addresses that the jury may accept or reject. ... Whether a warning is called for, and in what form, depends upon what the interests of justice require in the particular case."

87. In this case, the judge believed that the interests of justice required a warning in the form which he gave to the jury, a form which was to the advantage of the applicant and, indeed, embraced by his counsel. Although the form of warning to be given is very much a matter for the trial judge, it seems to me - and despite what was initially submitted by Mr. McArdle on behalf of the respondent - that where the judge has embarked upon the course of warning the jury, as was done here, that it would be unsafe to convict upon the unsupported or unconfirmed testimony of the complainant, it is necessary for him to further assist the jury by giving them instructions on the question whether there is - or is not - independent material capable of providing such support or confirmation. That is what the judge did in this case, and - as I have said - his directions were, in my view, appropriate.

Proposed Ground 3 - Error by the trial judge in failing to relate the directions as to uncharged acts and propensity to the evidence left as corroboration

91. In support of the proposed ground 3 , counsel submitted that the propensity warning which was given by the judge in respect of the complainant's evidence relating to uncharged sexual conduct did not go far enough and ought to have been adapted to include the evidence which his Honour said was supportive of the complainant's evidence; that is the material relating to the repetitive phone calls and visits to the complainant's house in the early months of 2000. It was put by counsel that this evidence, from the prosecution's perspective, demonstrated that the applicant had shown improper interest in the complainant on several occasions. It was conceded by counsel that no such submission had been put on behalf of the applicant at trial and no exception taken to the judge's charge on that account.

94. In the course of his directions to the jury, the trial judge referred them to the evidence given by the complainant in which she had said that the applicant, during the course of her stay at the applicant's house in December 1999, would rub her on the leg or thigh. His Honour went on to tell the jury that none of that conduct was the subject of any charge on the presentment, and that they could only use the evidence for the purposes of determining the nature of the relationship between the applicant and the complainant and of placing the alleged conduct, which was the subject of the charges, in a realistic context. He then warned the jury that they could not use that evidence in proof of the offences which were charged and, thus, had to be careful and precise in their process of reasoning. He told them that it would be "wrong, prejudicial and contrary to law" for them to reason that because the accused had engaged in that conduct he was the kind of person who was likely to have committed one of the crimes charged as specified on the presentment. His Honour said:

"It is impermissible to reason that the mere acceptance of the complainant's evidence of being touched on the leg would afford more reason to accept her evidence with respect to a charged act."

These directions were in accordance with the decisions in S.v.R.[19], B. v. R.[20] and R.v. Vonarx[21].

100. Mr. Priest contended that these directions should have been expanded to embrace the independent material of the telephone calls and visits which his Honour left to the jury as capable of supporting the complainant's evidence. The point being made, as I understand it, was that, because the prosecution were suggesting that the evidence demonstrated the fact that the applicant was showing an improper interest in the complainant, it was material that should have attracted a propensity direction.

103. The point, in my view, has no substance to it. The evidence, and the purpose for which it was being used, was totally unrelated to the evidence of "uncharged conduct". The latter type of evidence has a peculiar prejudice because it is evidence given by the complainant herself of conduct by the accused, uncharged in the presentment, which is discreditable and, thus, capable of being misused by the jury as evidence of propensity. Evidence, independent of the complainant's testimony, which is left to the jury, as it was in this case, as evidence capable of confirming the complainant's evidence is of a different kind and used for a different purpose. It is, as I have said, evidence which is quite independent of the complainant's own testimony , but which is capable of strengthening that testimony, in the sense that it connects or tends to connect the applicant with the crime charged. The fact that it is capable of being used by the jury to reinforce the complainant's testimony does not make it evidence of propensity. Indeed, it would, in my view. be a nonsense for the jury to be told that such independent evidence could be used by them for the purposes of confirming the complainant's evidence that the applicant had indecently assaulted her; but then to be told that they could not use the same evidence to demonstrate that he was the kind of man who would indecently assault her. It has never been suggested before, so far as I am aware, that evidence, independent of the testimony of a complainant, which is said to be capable of corroborating her testimony must be the subject of a "propensity warning". Mr. Priest was inclined to suggest that that was because the law "has advanced". However, I think not. It seems to me that a warning such as that proposed by counsel would be a contradiction in terms. I am, accordingly, of the view that this proposed ground cannot be made good and that leave should not be given to amend the application to include it. In the circumstances the verdict of the jury was not unsafe or unsatisfactory and the application for leave to appeal against conviction should be refused.

Application for leave to appeal against sentence

107. The primary point taken by Mr. Priest in relation to the sentences imposed was that his Honour was in error in wholly cumulating the sentences leading to a total effective sentence of five years and nine months; which sentence, he submits, is manifestly excessive. It was further contended that the individual sentences imposed on count 2 and count 3 were far too high given the nature of the offending.

110. In my view, I think the sentences are disproportionate to the gravity of the offending, notwithstanding the fact that - in respect of the sentences on counts 2 and 3 - the applicant fell to be sentenced as a "serious sexual offender". The prior offending of the applicant, although entitling the judge to be "worried" about it, was well over 20 years old and could scarcely be described as serious examples of their kind. It is true that, in accordance with s.6D of the Sentencing Act, the judge was sentencing the applicant, for the offences comprised in counts 2 and 3, as a serious sexual offender and, for that purpose, was bound to regard the protection of the community from the offender as the principal purpose for which the sentence was being imposed. Furthermore, his Honour was also required by s.6E of the Sentencing Act to order the various sentences imposed to be served cumulatively unless he otherwise directed. Nevertheless, as it seems to me, the judge was not entitled in this case to impose sentences disproportionate to the gravity of the offending and to wholly cumulate those sentences without giving some explicit reason as to why it was necessary to do so. Although s.6D of the Sentencing Act requires a Court, in determining the length of a sentence to be imposed upon a serious sexual offender, to regard the protection of the community from the offender as the principal purpose for which the sentence is imposed, that does not mean that the judge is required to ignore principles of proportionality in imposing sentence. Imposing sentences which are proportionate to the crime is an entrenched principle of sentencing[22]. Although the power is given to the judge by s.6D(b) of the Sentencing Act, in sentencing a serious sexual offender, to impose a sentence longer than that which is proportionate to the gravity of the offence for the purposes of protecting the community from the offender, the judge should provide adequate reasons for doing so[23]. In this case it is clear that the judge regarded the "protection of the community" as the principal purpose of sentencing - as he was required to do - but it also seems clear from the length of the sentences imposed on counts 2 and 3, and the total cumulation of all sentences, that his Honour was imposing sentences disproportionate to the gravity of the offending. No reasons were given by his Honour for imposing sentence in this way, and to that extent I think he erred. That reopens the sentencing discretion. Although, in my view, the offending - particularly in respect of counts 2 and 3 - was clandestine and predatory, I do not regard it as calling for sentences of the length which his Honour imposed; nor do I think that it calls for the total cumulation which his Honour ordered. In my view, the appropriate sentencing on each of the counts should be as follows:

I would cumulate nine months of the sentence imposed on count 2 upon the sentence imposed upon count 3. The total effective sentence will, therefore, be one of three years three months' imprisonment. I would direct that the applicant serve a period of two years and three months of that sentence before becoming eligible for parole.

119. Having read the judgment of the learned President, I agree, for the reasons he has stated, that the application for leave to appeal against conviction should be dismissed but that the application for leave to appeal against sentence should be granted, the appeal allowed and the appellant re-sentenced in the manner proposed therein.

123. For the reasons advanced by Winneke, P., I agree that the application for leave to appeal against conviction should be refused, the application for leave to appeal against sentence allowed and the applicant re-sentenced as proposed by him.

126. I wish to add a few remarks of my own concerning the notion of corroboration of a witness's evidence in those cases in which it is considered to be required. However, I do not propose to repeat what I said concerning this subject in Martin[24].

129. Perhaps the most notable feature of the arguments addressed in the various authorities to which the President referred and which can be seen to underpin contentions regularly presented in this Court is the remarkable persistence of the misconception that in order to be corroborative or supportive of the evidence of a Crown witness, the evidence relied upon for this purpose must itself be probative of guilt.

132. Such arguments fail to have regard to the repeated statements by the courts concerning the nature and function of corroborative or supportive evidence. As Lord Simon stated in D.P.P. v. Kilbourne[25]:

"Corroboration is ... nothing other than evidence which 'confirms' or 'supports' or 'strengthens' other evidence (Lord Morris of Borth-y-Gest; Lord Pearson; Lord Diplock). It is, in short, evidence which renders other evidence more probable. If so, there is no essential difference between, on the one hand, corroboration and, on the other, 'supporting evidence' or 'evidence which helps to determine the truth of the matter.' Each is evidence which makes other evidence more probable."

Considered in isolation, evidence which is capable of providing support for other evidence may be quite innocuous as far as proof of guilt is concerned. Yet it may, by enhancing the reliability or credibility of other evidence, become extremely important in the determination of the facts by a jury.

137. The prosecution case in the present matter rested upon the acceptance by the jury of the version of events given by the complainant. Bluntly put, the jury had to determine whether they were satisfied beyond reasonable doubt that her evidence was, in its essential features, truthful and accurate. They were invited by the prosecutor to find support for her version with respect to count 3 in the conduct of the applicant himself.

140. The making of a telephone call or a visit to a person's home can, according to the circumstances in which it takes place, be regarded as insignificant, clearly innocent, a little or deeply suspicious, or highly incriminating. Without reference to the background against which the call or visit is made, acts of this ordinarily normal kind would seldom possess any character at all.

143. Here, the calls and visits were made by a 48 year-old man to a 13 year old girl in the absence of and without the knowledge of her parents. The jury, employing their experience of human affairs, would be entitled to regard such conduct as at least somewhat unusual, reject the applicant's explanation for it and view the evidence of the calls and visits as rendering more likely to be truthful the complainant's version of what happened on the last occasion that he called at her home under such circumstances.

[1] [1916] 2 K.B. 658.

[2] [1990] HCA 51; (1990) 171 C.L.R. 207 at 211.

[3] R. v. Baskerville [1916] 2 K.B. 658 at 667 per Lord Reading, C.J.; BRS v. R. [1997] HCA 47; (1997) 191 C.L.R. 275 at 297, per Gaudron, J.

[4] [1998] 4 V.R. 818 at 851.

[6] [2003] VSCA 80.

[7] [1973] A.C. 729 at 758.

[8] Cf. R. v. Colless (1964) 84 W.N. (Pt.1) (N.S.W.) 55 at 57-58 (C.C.A.(N.S.W.)); Ridley v. Whipp [1916] HCA 76; (1916) 22 C.L.R. 381 at 387, per Griffith, C.J.

[9] (1982) Qld.R. 508 at 526.

[10] (1989) 39 A.Crim.R. 414.

[11] (1977) 18 S.A.S.R. 103, at 107-108.

[12] [1982] VicRp 8; [1982] V.R. 81 at 88.

[13] [1986] 1 Qd.R. 476 at 480, 483-4.

[14] cf. R. v. Kerim [1983] 1 Qd R. 426 at 455 per McPherson, J.

[15] cf. R. v. Kerim [1983] 1 Qd.R. 426 at 447 per Macrossan, J.; but note the strong dissenting view of McPherson, J. at 460-1.

[17] [1997] 2 V.R. 342 at 351.

[18] [1997] 1 V.R. 593 at 603.

[19] [1989] HCA 66; (1979) 168 C.L.R. 266.

[20] [1992] HCA 68; (1992) 175 C.L.R. 599 at 610 per Deane, J.

[21] [1999] 3 V.R. 618 at 621-3.

[22] Veen v. R. (No.1) [1979] HCA 7; (1979) 143 C.L.R. 458; Veen v. R. (No.2) [1988] HCA 14; (1988) 164 C.L.R. 465.

[23] Cf. R. v. Connell [1996] VicRp 30; [1996] 1 V.R. 436 at 443 per Charles, J.A.

[24] R v. Martin [2003] VSCA 80.

[25] [1973] A.C. 729 at 758.