R v TSR [2002] VSCA 87

100. On 3 October 1998, according to the applicant, he visited the complainant's house in connection with the fence that her father was building. He parked the car on the opposite side of the road, and briefly spoke to her father. He then spoke to her brother about sunglasses. He left shortly thereafter, drove straight home and did not see the complainant again that day. He denied that he had talked to her at the corner and that he had marijuana at his house. He also denied giving the drug to the complainant. The applicant said that, although he was shocked when the complainant asked him for the marijuana, he did not mention it either to his wife or to his mother-in-law because it would have got back to the complainant's parents (and she would have got into trouble for such behaviour).

104. I now turn to the first group of grounds argued by Mr. Holdenson - grounds 14, 15 and 16 - under cover of which he submitted that the jury's verdicts were invalid, because they were taken on the second presentment on which the applicant had never been arraigned.

107. Under cover of these three grounds, the applicant's case was that the trial had proceeded by reference to the second presentment: indeed the main plank of the argument was that the jury had returned their verdicts on the second presentment. But, said counsel, the applicant had been put in charge only on the first presentment, when he was arraigned; and as he had never been arraigned on the second presentment, issue had never been joined between him and the Crown on that presentment. Accordingly, the jury had no power or right to determine his guilt or innocence on the counts on the second presentment. Indeed, Mr. Holdenson went so far as to contend that, once the Crown elected to proceed on the second presentment, the jury could not have determined the applicant's guilt on the counts on that presentment even if he had been re-arraigned before them on the second presentment and even though the counts in that presentment were the same as those in the first presentment. That was because, counsel said, before the trial could properly have proceeded on the second presentment, the applicant must have been re-arraigned before a new jury panel and put in charge afresh. Put shortly, the claim was that the verdicts returned by the jury were a nullity.

110. The procedure by which the applicant can be arraigned is set out in s.391 and s.391A of the Crimes Act 1958 in the following terms.

"391 Plea of `Not Guilty' puts the accused on trial by jury; procedure where no evidence led If any person arraigned on any indictment or presentment pleads thereto `Not Guilty', he shall without further form be deemed to have put himself upon the country for trial; and subject to section 391A the jury for his trial shall in the usual manner be impanelled accordingly. Provided that where a person arraigned on any indictment or presentment pleads `Not Guilty' to any count in respect of which the prosecution proposes not to lead evidence the prosecution shall so inform the trial judge before a jury is impanelled and the trial judge shall thereupon direct that an entry of `Not Guilty' be made upon the record in respect of such count and every such entry shall have effect as if were the verdict of a jury upon the trial of the accused person on that count. 391A Judge may hear and determine question of law etc. before jury is impanelled Where an accused person is arraigned on indictment or presentment before the Supreme Court or the County Court the Court before which the arraignment takes place, if the Court thinks fit, may before the impanelling of a jury for the trial hear and determine any question with respect to the trial of the accused person which the Court considers necessary to ensure that the trial will be conducted fairly and expeditiously and the hearing and determination of any such question shall be conducted and have the same effect and consequences in all respects as such a hearing and determination would have had before the enactment of this section if the hearing and determination had occurred after the jury had been impanelled."

In support of his case, Mr. Holdenson relied, inter alia, on what was said by this Court in R. v. Talia, Centra and Maglitto[9] as to what constitutes an arraignment. Their Honours in that case recognised[10] that the arraignment procedure provided by ss.391 and 391A constitutes the "only procedure by means of which an accused charged with an indictable offence in this State can be `arraigned', that being the occasion upon which an accused is called upon to plead to the charge or charges preferred against him by the Crown." A little later, their Honours said[11], in the context of examining the history of arraignment,:

"The purpose of the procedure was to discover whether the accused disputed the matter of which he was accused and therefore whether the matter needed resolution by a trial."

116. In R. v. McNamara (No.2)[12], upon which counsel also placed reliance and which was decided by the same Court as that which had decided Talia eight months earlier, the applicant was first arraigned on 25 March 1992. After a number of aborted trials, he was arraigned on 12 May 1993 on the second presentment (which had been filed on 10 May 1993 and which charged him with the same offence with which he was charged on the first presentment). The amendment to the Evidence Act 1958 which abolished the right to give unsworn evidence came into force on 11 May 1993, but did not apply to trials that had commenced prior to that date. One of the questions before the Court was whether the applicant's trial could be said to have commenced on 25 March 1992, notwithstanding that he was arraigned on the second presentment on 12 May 1993. If so, he would have been entitled to give unsworn evidence at his trial. It was argued on his behalf that, on 25 March 1992 he joined issue on the offence with which he was charged on the first presentment; the form of the offence to which he pleaded not guilty on 25 March 1992 was the same as that preferred against him by way of the second presentment. Consequently, it was said, the amending legislation did not operate to preclude him from giving unsworn evidence. The Court emphasised[13], however, that the presentment is "not merely some relatively unimportant document, on the face of which is set out the offence, and on the back of which is endorsed the history and result of the proceedings." Earlier, their Honours quoted from Stephen, A History of the Criminal Law in England,[14], namely:

"The indictment is the foundation of the record in all criminal cases, and is indeed the only document connected with the trial which in all cases is in writing."

120. In McNamara the applicant had been re-arraigned on the second presentment and had pleaded to it and that is an important distinction between that and the present case. Because the applicant had pleaded guilty to the second presentment in McNamara, the Court saw no need to consider its status. But it did accept[15] that, if the applicant had not been called upon to plead to the second presentment, the trial would have been a nullity because he then would not have joined issue upon that presentment which was a condition precedent to a lawful trial upon that presentment. Their Honours said that it was that issue that the jury had been empowered to try and it mattered not that the applicant had earlier joined issue upon a previous presentment. By implication, their Honours rejected the argument that, since on 25 March 1992 the applicant had joined issue upon the offence with which he was charged and he was tried for that very offence (albeit on the second presentment to which he had pleaded), his trial started on 25 March 1992.

123. Mr. Holdenson argued, as I have said, that, because the first presentment was effectively abandoned by the Crown when it elected to have the applicant tried on the second presentment, and because the applicant was not re-arraigned on the second presentment, no issue was joined on the latter presentment. Consequently, it was said, the jury could not have lawfully tried the applicant on a second presentment. It follows, therefore, that in order to succeed in his argument, Mr. Holdenson had to establish that the applicant was tried, and that the jury returned their verdicts, on the second presentment.

126. In support of his case that the applicant was so tried, Mr. Holdenson first argued that, on 29 August 2000, the prosecutor "filed over" the second presentment with the intention that it replace the first presentment and so, he claimed, it did in fact replace it. In support of the contention, counsel relied on the following matters.

(a) At the outset of the trial the prosecutor "indicated an intention to file over" a second presentment and confirmed that intention at the end of the first day's proceeding.

(b) At the commencement of the hearing on 29 August 2000 the prosecutor told his Honour that he was filing over the second presentment and provided a copy of it to the judge.

(c) The back-sheet of the second presentment contains an endorsement to the effect that it was filed on 29 August 2000. A like endorsement is on the first presentment as is the notation to the effect that the court ordered that the original presentment be permanently stayed.

(d) The first sentence of the third paragraph of his Honour's report confirms that the second presentment was filed over.

132. Mr. Holdenson next contended that the trial below was in fact conducted on the second presentment and pointed to the following matters in support of this contention.

(a) The second presentment was amended, with leave of the Court on two occasions during the course of the trial, first on 1 September 2000 and then on 4 September 2000 by the addition on each occasion of the name of an additional witness that was to be called by the Crown. The amendments were noted (by the person who instructed the prosecutor at the trial) on the back-sheet of the second presentment ("the ribbon amendment") and not on the first presentment.

(b) The jury was charged by reference to counts 1 to 4 (as they were numbered on the second presentment) and not by reference to counts 1, 2, 4 and 5 (as the relevant counts were numbered on the first presentment).

(c) Verdicts were given in respect of counts 1, 2, 3 and 4 in accordance with their numbering on the second presentment and not on counts 1, 2, 4 and 5 as they were numbered on the first presentment.

(d) The record of the verdicts is noted on the back-sheet of the second presentment and not on the earlier presentment.

(e) The quadruplicate records the verdicts by reference to counts numbered 1 to 4.

(f) The submission of the prosecutor on the plea in mitigation was referable to the second presentment.

(g) His Honour imposed the sentences in respect of counts 1 to 4 and not in respect of counts 1, 2, 4 and 5.

(h) The final paragraph of his Honour's report, implies that the trial was conducted on the second presentment.

138. In my view, however, the circumstances which pertain to the formulation of the second presentment and the context in which it came into existence and in which it came to be before the court, make it readily apparent that the applicant was tried and found guilty on the first presentment. The second document was, in effect, as Mr. McArdle submitted, akin to an extract of the earlier presentment or, to put it another way, was a convenient form of re**-**statement of the operative part of the first presentment. Importantly, it bore no new or distinguishing number. It had the same number as the first presentment, thereby emphasising that it was in substance no more than a re-numbering of the relevant charges that were in the earlier document and on which the applicant was being tried. It was obvious enough that the second document was to be read in conjunction with the first presentment: the endorsements which began on the first were continued on the second. If the jury called for the document that articulated the charges which they were obliged to try, they would be given the second presentment not the first, thereby concealing that the applicant had been charged with the rape of the complainant on the night in question, and I think it is clear that the procedure which is now attacked was put into effect for the benefit of the applicant and with the concurrence of his very experienced counsel. That this was the purpose behind the production of the second presentment appears from his Honour's very helpful report of 9 April 2002. Paragraph 3 of it, which assumes some relevance in light of the applicant's submissions to which reference will be made later, is in the following terms:

"My notes reveal that the next day - the 29th August 2000, just prior to the prosecutor opening his case to the jury, the prosecutor `filed a new Presentment over'. In fact this `new' Presentment was a copy of the Presentment to which the appellant had pleaded to the day before, save that the count of rape was omitted and the original counts 4 and 5 were re-numbered 3 and 4. I have no note that the appellant was re-arraigned on this further Presentment, and from memory this procedure of filing another Presentment which omitted the count of rape was done so that if and when the jury were given a copy of the Presentment they would not see the original count 3 of rape. My notes reveal that no objection was made to this procedure."

142. The other circumstances which demonstrate that the applicant was tried on the first presentment are these. First, the prosecutor did not say at the beginning of the trial, as Mr. Holdenson has put it, that he "intended" to "file over" and no more. Rather he said, as I have already mentioned, that it would be "desirable" to have the presentment "typed up" without count 3. This seems a clear indication that the motivating factor behind that proposal was to eliminate the risk of prejudice to the applicant, as I have mentioned, should the occasion arise that a document containing the relevant charges had to be given to the jury. It is true that, on the following morning, the prosecutor said that he had the new presentment and that he proposed to "file it over the previous presentment". Given the surrounding circumstances, it is apparent that he did not regard it as displacing the first presentment, and, as I have said, the second had the same number as the first. Ordinarily, when a subsequent presentment is filed over it is given an individual identifying mark to show that it follows (and is intended to replace) the earlier document. We were told by Mr. McArdle that that is the practice. I note that, in McNamara[16], for example, the first presentment was marked W1056 and the second, 1056A even though each presentment contained only the same charge and in identical form.

145. Secondly, in the third paragraph of the judge's report which I have already set out his Honour carefully put the significant words that appear in the first two sentences within quotation marks, thereby acknowledging that the second presentment was not "filed over" in the ordinary way. Moreover, although leave to file over a presentment is strictly not necessary as Mr. Holdenson pointed out, referring to R. v. Harris (No.2)[17] and R. v. Callaghan and Grant[18], ordinarily such leave is sought. According to the transcript, however, no such leave was sought and no order giving such leave was made and his Honour in his report does not suggest to the contrary. It is also ordinarily the case that, when a presentment is filed over, an order is made that proceedings on the first presentment be stayed, but again the transcript is silent in this regard (and so is his Honour's report).

148. To overcome this difficulty, counsel for the applicant submitted that the transcript was not a reliable guide as to what happened at the trial. To illustrate this, he pointed to the erroneous summary in the transcript of the charges on which the applicant was first arraigned and to the omission from the transcript of the re-arraignment of the applicant before the jury panel. It is not uncommon, of course, that errors occur in the transcript but usually they are corrected in the course of the proceeding. True it is that the transcript for 28 August 2000 omits to record that the applicant was re-arraigned, but that was no more than a failure to transcribe from the audio-tape the fact that the process of re-arraignment had taken place. In contrast, we were told from the Bar table that the proceeding on the following day was recorded by shorthand writers and it is almost inconceivable that they would have omitted to transcribe orders granting leave to file over the second presentment and staying the proceeding on the first, had such orders been made.

151. Finally, there was nothing said by the judge or counsel during the trial to suggest that the trial was being conducted on the second presentment and not the first. The trial judge, of course, had nothing to do with the notations on the back-sheet of the presentments; as it happened he had no reason to refer to either document during the course of the trial.

"Date 29/8/00 Leave granted this day to file fresh presentment **#**MO1225974B/RDP over this presentment. Order that proceedings on this presentment be permanently stayed. [Signature of the Associate] Tim Hoare Associate."

"Date: 29/8/00 Leave granted this day to file this presentment number MO1225974B/RDP filed 22/11/99. [Signature of Associate] Associate"

157. Such endorsements, however, do not constitute the formal record of the Court, but are only minutes or memoranda. This has been clearly laid down by the Full Court in R. v. Hodgkinson[19] which also recognised that such endorsements on the presentment can be corrected if they are wrong. Following the conclusion of argument, Mr. McArdle filed further written submissions concerning the legal effect of an Associate's endorsement on the presentment. Counsel helpfully referred us to the following cases which have followed Hodgkinson and have treated the endorsement on the presentment as merely an administrative memorandum and not as part of the record of the court - R. v. Hewitt ex parte Attorney-General[20]; Carroll v. Price[21] and R. v. Rapke ex parte Curtis[22]. R. v. Galvin (No.2)[23] were to the same effect. It should also be noted that, as Mr. McArdle submitted, Hodgkinson was referred to but not queried by the Full Court in R. v. Billington[24]. Notwithstanding a suggestion to the contrary, R. v. Saxon[25], does not overrule or cast a doubt on the essential decision in Hodgkinson. Saxon established, not inconsistently with Hodgkinson, that, once the particulars of the verdict and judgment which have been endorsed on the presentment are entered on the quadruplicate which is assigned and despatched, that becomes the record of the Court for relevant purposes and cannot be recalled for amendment otherwise than to correct a "slip". Saxon does not establish that endorsements on the presentment are, by themselves, a record of the Court.

160. That being the situation, this Court can disregard endorsements on the back-sheet of a presentment which it considers to be wrong. For the reasons that I have given, I am of the view that the two endorsements in question are wrong and can, therefore, be disregarded by us. They appear to be the consequence of a "frolic" of the Associate and are not reflected in the transcript. Furthermore, they are inconsistent with the stated and inferred aim and purpose of the second presentment in the applicant's trial. I mention for completeness that, if it is desired to regularise the notation on the two back-sheets, the corrections - by means of a note deleting the two endorsements - can be made in the County Court.

163. Mr. Holdenson also argued, as I have said, that the other notations on the back-sheets of the second presentment, such as the ribbon amendment and the recording of the verdicts, indicate that the Court treated the applicant as being tried on the second presentment. It seems clear enough that, putting aside the ribbon endorsement, the other notations were made by the Associate who obviously used the second presentment as a convenient place to record the relevant matters. He even transferred to the second presentment the notation "NG", which was placed on the first presentment opposite each count to record the applicant's plea of not guilty (probably at the first trial) - and he transferred the notation to the second presentment notwithstanding that the applicant had not been arraigned on it. In the circumstances of this case those endorsements do not demonstrate that the applicant was tried on the second presentment.

166. Similarly, the fact that the ribbon endorsement was placed on the second presentment does not assist the applicant It was put there by the prosecutor's instructor who was, no doubt, given the second presentment for that purpose by the Associate on the basis that it was the document which was being used by him to maintain a record of the relevant events. It should be borne in mind that so far as this amendment is concerned, the trial judge did not, in terms, order that "the second presentment" be amended by the addition of the names of the relevant witnesses, but rather that "the presentment" be amended to reflect the names of the additional witnesses that the Crown intended to call.

169. The fact that, as Mr. Holdenson pointed out, the second presentment was signed by a Crown Prosecutor who was not the prosecutor who signed the first presentment, does not go to establish, as counsel claimed, that the second presentment was intended to replace the earlier one. The identity and capacity of the person who signs the presentment may be relevant to the determination of its validity, but the effectiveness of an otherwise valid presentment, in the sense of empowering the Court to try the accused, depends, not on the signature by the Crown Prosecutor, but upon its being filed in Court. This occurs when a prosecutor or someone authorised by that person hands the presentment to the judge before arraignment (or delivers it to the Registry for delivery to the judge who will preside at the trial) - R. v. Parker[26]; McNamara (No.2)[27] and R. v. Holden[28].

172. It is not surprising that the jury were charged by reference to counts which were numbered 1 to 4. Mr. Holdenson relied on this fact to support his case that the applicant had been charged on the first presentment. Given the intention to avoid any reference to count 3, as endorsed on the first presentment, it would have been confusing to say the least if, during the trial, reference to the four counts was made by reference to counts 1, 2, 4 and 5. This would have defeated the purpose of the second presentment and the removal of the risk that the jury would learn of the rape charge. It follows, therefore, that the verdicts would be taken by reference to counts 1 to 4 and that the records on the presentment and the quadruplicate would show them as referring accordingly. On one view, it may have been more correct if the quadruplicate and possibly the first presentment had shown convictions against counts 1, 2, 4 and 5. On the other hand, bearing in mind that it was always intended that the two presentments be read together, it can be easily deduced from those documents that the counts referred to in the quadruplicate are referable to those on the first presentment. Consequently, the mere fact that verdicts were taken in relation to counts numbered 1 to 4 and were so reproduced on the back-sheet of the second presentment and in the quadruplicate does not support the argument that the applicant was tried on the second presentment. The same applies to Mr. Holdenson's claim that, because the prosecutor's submissions at the hearing of the plea in mitigation were referable to counts 1 to 4 and because the judge sentenced the applicant by reference to such numbered counts, he must have been tried on the second presentment. The fact is that all knew that, because of the introduction of the second presentment, the four counts in the first presentment were treated as being sequentially numbered. Those matters do not go to establish that the applicant was tried on the second presentment.

175. It follows that, in my view, the applicant's argument that he was tried on the second presentment must fail and consequently, his case that on that account the verdicts were a nullity must also be rejected.

Grounds 1, 2 and 17 - evidence of complainant

179. Under cover of these grounds the applicant claims that his Honour erred:

- in refusing to exclude the evidence of the complaint made by the complainant to Rebecca (ground 1)

- in failing to give proper directions to the jury as to how they would deal with the complaint (ground 2)

- in directing the jury that the impugned evidence could be used in respect of the count which alleged the drug offence (ground 17).

I turn to consider the arguments of counsel in relation to these grounds.

187. I have already mentioned that, at the outset of the proceeding before his Honour, Mr. Chettle, who appeared below for the applicant, sought to have the evidence of the complaint excluded on the ground that it was not made within a reasonable time of the alleged offending conduct. There was then no other criticism of that evidence. Before us, the complaint evidence was attacked on a different ground, namely, that it did not constitute a complaint and, therefore, should have been excluded.

190. In my view there is no substance in this point. Evidence of complaint is admissible as evidence of consistency - R. v. Saragozza[29] - for the purpose of buttressing the credit of the complainant as a witness - R. v. Freeman[30]. In order to be a complaint, the statement must be more than a recitation of the alleged offending conduct. Ordinarily it must be conveyed in the context of an expression of grievance or accusation: cf. Saragozza[31]. In my view, it was plainly open to the jury to find, on the evidence, that the complaint here was of that character. The complainant said in her evidence that she had told Rebecca "what had happened". There was no complaint at the trial that the evidence was insufficient in the sense that it lacked detail as to what had occurred and no objection was raised as to the admissibility of the evidence of Rebecca in this respect. She said in her evidence, as I have already mentioned, that the complainant told her that the applicant took her into her grandmother's bedroom and "he was feeling her and fingered her". She also gave evidence as to the complainant's unusual demeanour during that conversation. The complaint was consistent with the evidence that the complainant gave at her trial and it was open to the jury to find that what the complainant had told Rebecca as to what the applicant had done to her was not a mere recitation of his conduct towards her, but included a natural expression of grievance or accusation.

194. It was next claimed that his Honour failed to tell the jury:

(a) that it was for them to determine whether the statement in question was actually made;

(b) that if they found that it was made, then they were required to determine whether the statement of the complainant amounted to a "complaint";

(c) that if they found that the statement was made and that it constituted a "complaint" -

(i) that did not provide evidence of the facts stated in the complaint

(ii) that did not assist in proving the truth of the facts alleged to which must be proved by other evidence

(iii) if they were not satisfied of the guilt of the applicant by evidence independent of the evidence of the complainant, then the evidence of the complaint could not be relied upon to establish the offence.

I have already mentioned that in regard to the evidence of the complaint no exception was taken at the trial to his Honour's charge. Be that as it may, his Honour's charge, taken as a whole, deals adequately with the matters in respect of which the applicant now asserts error. In particular, his Honour dealt specifically with the attack summarised in paragraph (c) above. The learned judge told the jury :

"In considering the evidence of complaint, you should bear in mind that of course it springs from the same source as the evidence of the crime, that is [the complainant]. It may or may not demonstrate consistency but it is not to be regarded as evidence independent of the complainant giving additional support to the probability that the crime happened. I stress, its only effect is upon the credibility of her story."

There being no exception to the charge, it may fairly be assumed that the applicant's experienced counsel saw no alleged error in the charge and no prejudice to the applicant in what was being put to the jury. And that is my view too.

203. It was next argued for the applicant that his Honour's direction as to the use to which the jury might put the evidence of the complaint was not confined to the three alleged sexual offences and that the judge had positively misdirected the jury in leading them to believe that they could use that evidence for the purpose of resolving count 4, namely, the drug charge. It is unnecessary to set out here the relevant parts of his Honour's charge. It is sufficient to say that, fairly read, it is apparent that his Honour confined his directions as to the use of the complaint evidence to the three counts which alleged sexual offences and that those directions could not sensibly be taken to apply to the count concerning the applicant's supply of marijuana to the complainant.

206. I mention for completeness that, after his Honour charged the jury in the manner set out in para.[53] above, the applicant's counsel asked his Honour to make it clear to the jury that, given that the applicant's case was that the complainant and Rebecca had "cooked up" the evidence as to complaint, they had to be satisfied that the complainant in fact had made the complaint to Rebecca. Counsel said: "I don't ask for anything special to be said about that but in the course of dealing with any arguments I'd ask that you deal with it". It was contended before us that, not only did his Honour not re-direct the jury as requested, but on the contrary, his Honour's direction assumed that the complainant had made the complaint to Rebecca. In my view, however, in his charge, his Honour adequately dealt with the matter raised when he summarised the applicant's case and did not, in his charge, assume that the complaint had been in fact made. Rather, his Honour made it clear to the jury that it was something about which they had to be satisfied. Again, no exception was taken to his Honour's charge on that score.

209. It is convenient to say something briefly about the applicant's failure to raise by way of exception the various criticisms of his Honour's charge, which are now made for the first time as for example, under cover of ground 17. What is said here should be taken to apply equally to other grounds which raise complaints that could have been, but were not, made by way of exception or otherwise during the course of the trial. The failure to make such complaint at the trial suggests that the applicant's experienced counsel saw no error or injustice in what was done and, having regard to the nature of the criticism, nor should this Court - R. v. Clarke and Johnstone[32]; R. v. Wright[33]; R. v. Gallagher[34]; R. v. Williamson[35]; R. v. Pepe[36]. It is also pertinent to mention what this Court said in R. v. Osland[37]:

"... it is the obligation of counsel, if he or she thinks that a direction or omission to direct is significant in the context of the trial, to take exception and ask the judge to re-direct. If counsel does not, the failure to object is a significant obstacle in the path of an applicant for leave to appeal (R. v. Clarke and Johnstone), although not an insuperable one if the misdirection or non-direction has manifestly led to a miscarriage of justice: R. v. Clune (No.2)[38]."

In my view, the aspect of his Honour's charge about which the applicant now complains under ground 17 did not, in the circumstances, result in a miscarriage of justice.

215. Under cover of these grounds it is asserted that his Honour failed to direct the jury properly in relation to whether the complainant had a motive to lie. It was part of the applicant's case that the complainant's evidence as to the alleged offending was a tissue of lies. In his final address to the jury the prosecutor argued that the complainant had no motive to lie. In his charge, his Honour told the jury that there was no onus on the applicant to suggest or to provide a motive for the complainant to have lied and that even rejection of the motives offered by the defence did not mean that she was necessarily telling the truth. His Honour said:

"You may legitimately ask yourselves if [the complainant] had a motive to lie in assessing her credibility, but you may not assume that the accused has to prove that she did have a motive to lie. He does not have to prove anything. It is open to the defence to put forward a motive if it wants to, or if he wants to, but there is no obligation on him to do so. Now, here the defence have put forward various motives, as I have just outlined to you. However, if you reject these assertions by the accused, that does not mean that [the complainant] is necessarily telling the truth. You must still be satisfied beyond a reasonable doubt that she is telling the truth. The defence invites you - that is the direction I wanted to give you about that. To go on, the defence invites you to compare - this is again on this question of her credibility - [the complainant] and the accused as witnesses."

219. The applicant now contends, for the first time, that the direction was inadequate. In particular, it is said that his Honour failed to tell the jury that:

- it is not for the jury to speculate as to what reasons the complainant had (or might have had) to lie, or whether she had no reason to lie;

- the evidence of the complainant is not rendered more credible by reason of either the absence of a motive or reasons in the complainant to lie or the failure of the jury to make a finding that the complainant had a motive or reason to lie.

225. In my view, there is no substance in this complaint. It is difficult to see what purpose would have been served by telling the jury that there are many reasons why people might lie. Such a direction may be necessary where it is claimed that lies can demonstrate the accused's consciousness of guilt, but that issue did not arise here. Be that is it may, his Honour's direction accorded with what was sought by the applicant's counsel and no objection was taken to it at the trial. In the circumstances, the direction was adequate, particularly when considered in the context of the whole charge. In my view, no miscarriage of justice can be said to have arisen from it.

228. Consequently, the above two grounds must fail.

232. It was contended on behalf of the applicant under cover of this ground that his Honour failed to direct the jury as to the applicant's good character. Prior to his Honour giving his charge, counsel had asked his Honour to give such a direction, more particularly that his good character went to the likelihood of his not having committed the offence and to his credit. His Honour said[39] that, in his view, there was no reason to give such a direction. Mr. Holdenson submitted that his Honour erred in that regard.

235. At the trial, evidence was given by the applicant that he had no prior convictions, that he was married with a child and was a member of the Victoria Police of seven years' standing. Otherwise, however, no character evidence was led on his behalf. Mr. Holdenson emphasised that the evidence of the applicant's character was of some significance to his defence, particularly since he had given sworn evidence. Counsel submitted that, in the circumstances, his Honour had no discretion but to give a "full character direction" and his failure to do so constituted a material non-direction. Therefore, it was said, the conviction must be set aside.

238. Counsel relied in support of his submission on R. v. Arundel[40]; R. v. Warasta[41] and R. v. Melbourne[42]. In those cases evidence which was directed at establishing that the applicant was of good character was led from persons other than the accused and the trial judge gave direction as to how the jury were to use that evidence in their deliberations. As Phillips, J.A. observed in argument in this case, such a direction might be necessary to explain to the jury the relevance of the evidence, because otherwise they might be puzzled as to its relevance and how it could be properly used in their deliberations. But even in a case where character evidence from others is led, whether a direction in relation to it is to be given to the jury, as was said in Melbourne[43], is a matter of discretion for the trial judge. In that case evidence was adduced to establish that the accused had no previous convictions other than a conviction for drink driving in 1975 and was not "adversely known to the police". Various descriptions of his character and personality were given by those who knew him, such as:

(a) evidence that he was a "quiet man", a man who was "always gentle", and who, apart from this occasion, had "never" been "aggressive";

(b) evidence that the accused was "a very amiable sort of person" and

(c) evidence that the accused was "a very quiet, well behaved gentleman".

McHugh, J. was of the view that this evidence was not of such probative significance in relation to the accused's credibility as to require the trial judge to give a direction that the evidence bore favourably on his credibility.

244. Here, as Mr. McArdle submitted, the evidence of the applicant's good character was flimsy and was, in any event, part of the "story" which he had to tell as part of his defence. For example, his evidence of his inter-family relationship which was said to show that he was a "good family man" was relevant to his defence. At the trial there was no character evidence called from witnesses other than the applicant himself, in contrast, for example, to the case which was presented at the hearing of the plea in mitigation. The positive aspect of the applicant's character was highlighted to the jury in his counsel's final address in the course of which he claimed that the applicant had an "impeccable character".

247. In my opinion, his Honour made no error in declining to give the jury a direction based on the applicant's good character as sought by his counsel and no miscarriage of justice resulted from his Honour's decision.

Grounds 3-8: failure to disclose Ball statement, splitting the case, wrongful admission of evidence contrary to s.37A of the Evidence Act

251. On 12 October 1998 Detective Senior Sergeant Kenneth David Ball ("Ball") was visited by the applicant's superior officer and friend, Senior Sergeant Anderson ("Anderson"). Ball was then attached to the Complaints Investigation Division of the Ethics Standards Department of Victoria Police and was investigating the complaint against the applicant. He later became the informant in the case. Anderson told Ball that he had been approached by the applicant who had told him that he believed that he was under investigation for sexual molestation alleged against him by his niece. According to Anderson the applicant denied having done anything to the girl, and said that the girl was promiscuous, that she was a "cone head" (meaning, that she smoked cannabis), that she was virtually a street kid and did what she liked and that half the time her parents did not know what she was doing. Anderson asked Ball if the applicant was in fact being investigated and Ball said that he could not comment either way. Anderson said that he understood Ball's position. At the conclusion of their conversation Ball told Anderson that he would contact him. On the following day, Ball made a statement in writing ("the Ball statement") recording his conversation with Anderson. In that statement he said:

"It is also my opinion that if [the applicant] was prepared to admit, even the conversation about the victim that Anderson had already told me about, that it would have been valuable corroboration of the victim, and strengthened my case considerably".

At the first trial, Anderson was called for the applicant to produce certain records but, not surprisingly, he was not asked in chief about the conversation with the applicant which he had related to Ball. He was also not cross-examined on it by the Crown. It is fair to assume that the Crown was not confident that Anderson would agree with Ball's version of Anderson's recounting of his conversation with the applicant. Ball was also called at the first trial, inter alia, to produce documents. He was called again at the second trial, but Anderson was not then called to give evidence.

256. The applicant was cross-examined about his belief as to the complainant's promiscuity but at first he did not admit to holding any belief on that issue. A little later, however, when asked in general terms whether he had a conversation with Anderson, he admitted that he had, and eventually he agreed that, at the relevant time, he did believe that the complainant was promiscuous and had experimented with marijuana. The concession was of significance, given that the Crown sought to establish that the applicant was of the belief that the complainant was a "soft touch". Unbeknown to the applicant, this aspect of his cross-examination was conducted on the basis of the material contained in the Ball statement which the Crown had not made available to the defence, nor had it otherwise alerted the applicant's lawyers to the fact that it was in the possession of the Ball statement. It seems, however, that not long after the cross-examination of the applicant commenced in relation to this topic it became apparent to his counsel that the applicant was being cross-examined on this issue on the basis of a document. Counsel did not, however, object to this line of cross-examination until its completion. He then took objection to the evidence on the basis that the Crown had wrongfully failed to disclose to the defence a statement on which it cross-examined the applicant for the purpose of establishing that he believed that the complainant was a "soft touch"; and he also took objection on the alternative basis that the Crown had "split its case". The prosecutor, however, denied any impropriety. The applicant's counsel then claimed that the applicant was prejudiced by the Crown's conduct in relation to the Ball statement and eventually, the statement was produced to the defence with a disclaimer by the Crown.

259. The applicant's counsel then made two applications to his Honour to discharge the jury on the ground that the evidence so adduced had produced a miscarriage of justice. The first, shortly after the Ball statement was produced to him, was on the basis that the Crown had breached its duty of disclosure and further that it had wrongfully "split its case" both with consequential prejudice to the applicant. His Honour rejected that application. A little later, the applicant's counsel again applied to have the jury discharged on the basis that the Crown led inadmissible evidence contrary to s.37A of the Evidence Act 1958. This application was also rejected.

262. Thus, the applicant now claims that his Honour erred in failing to discharge the jury on any one of the three above grounds, namely:

(a) that the Crown's breach of its duty to disclose to the applicant the Ball statement or the information contained in it resulted in a miscarriage of justice;

(b) that by using the Ball statement as it did the Crown wrongfully split its case and that, too, resulted in a miscarriage of justice;

(c) that by such cross-examination the Crown adduced evidence as to the complainant's general reputation with respect to chastity which was inadmissible by reason of the operation of s.37A of the Evidence Act 1958. It was claimed that this also resulted in a miscarriage of justice.

(a) Duty to disclose

268. As I have said, it is claimed for the applicant that the trial miscarried because the prosecutor cross-examined the applicant by reference to the Ball statement without having first disclosed it, or its contents, to the defence. It was submitted that the Crown was under a positive duty to disclose any evidence which:

* shows that the applicant made admissions against self-interest, or

* might be relied on by the Crown to advance its case, or

* tended to confirm the evidence of the complainant.

274. It was claimed by the applicant's counsel that this obligation operates whether or not the Crown seeks to use the information. In support of this submission, Mr. Holdenson relied on R. v. Kane[44]; R. v. Chin[45]; R. v. Vonarx[46] and Clarkson v. Director of Public Prosecutions[47]. The applicant's counsel argued that, had the Ball statement been disclosed, the defence would have been afforded the opportunity to lead evidence, by cross-examination of Crown witnesses, so as to establish that the complainant was promiscuous or that she was generally believed to be so; or alternatively, the applicant would have objected to the cross-examination on the basis that the evidence that the applicant considered her promiscuous should have been tendered by the Crown through Anderson. In the further alternative, said counsel, had the material been available to the defence, the applicant could have been examined in chief so as to "take the sting" out of what he had said to Anderson about the complainant.

277. There is no doubt that it is the responsibility of the prosecutor to ensure that the Crown case is conducted with fairness - Richardson v. R.[48]. The learned Chief Justice, writing in his then capacity as the Director of Public Prosecutions on "The Responsibilities of the Prosecutor" in "Preparation of Criminal Trials in Victoria"[49], said:

"It is the duty of the prosecution, save in exceptional circumstances, to disclose to the accused and the accused's legal advisers - a reasonable time before trial - the admissible evidence which it is proposed to lead in furtherance of the prosecution. This does not mean the handing of the contents of the prosecution file to the accused's advisers in toto. Nor does it mean that details of every interesting irrelevancy should go to the defence. The whole basis of disclosure or discovery, as it is sometimes called, is to enable an accused person and his advisers to understand the basis of the case that is being made against him. This responsibility is honoured by the Crown when the evidence which will or may be admitted in court in furtherance of the prosecution is disclosed."

281. It has also been recognised by the Court of Criminal Appeal[50] in R. v. Higgins[51] that the Crown has an obligation to disclose to the defence material which would tend to assist the defence case, but the application of this duty of disclosure to a given case will depend upon the facts of the case and the significance of the material in question in light of the issues in the particular case. In that context their Honours referred to R. v. Charlton[52] and Lawless v. R.[53]. A little later, their Honours referred[54] to Clarkson where Murphy, J.[55] spoke of the prosecutor's duty of fairness where there is a question of disclosing to the defence documentary material in the possession or power of the Crown Prosecutor which "would tend to assist the defence case". His Honour later said[56]:

"[W]hilst it would, generally speaking, be quite unfair for a prosecutor not voluntarily to produce to the accused material relevant to the trial and going to exculpate him, there is no rule which enables the accused to seek at the outset indiscriminately to see the relevant papers within the possession or control or power of the prosecution."

See also the valuable judgment of Ormiston, J.A. in R. v. Garofalo[57] where his Honour examines[58], in the context of the prosecutor's duty to inform the defence of the accused's prior convictions, the authorities and relevant principles which govern the prosecutor's duty of disclosure. See also R. v. Lewis-Hamilton[59].

286. It must be recognised, however, that it is for the prosecutor to determine whether a document is to be disclosed to the accused. His or her decision on that matter is discretionary and cannot be reviewed as if it were the exercise of a judicial discretion, although if it amounts to a miscarriage of justice, it may constitute a ground for setting aside the conviction. This was, in effect, recognised by Barwick C.J., McTiernan and Mason, JJ. in Richardson[60]. It is not surprising, therefore, that in R. v. Apostilides[61] the High Court described[62] the role of the prosecutor in deciding whether to call a witness as-

"... a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one."

The same observation applies, in my view, to the prosecutor's decision whether or not to hand over a document to the defence. In any event, as this Court[63] pointed out in Cannon & Rochford v. Tahche & Ors.[64] the prosecutor's duty of disclosure is one which is owed to the court and not to the accused.

291. The principles just mentioned were recognised in Kane and in Chin but it has not been suggested in Australia that, subject to the requirement to observe fairness, the accused cannot be cross-examined by the Crown for the purpose, inter alia, of adducing evidence in support of the prosecution case. In Kane, after the Crown case had closed, the prosecutor became aware of evidence of a conversation between a senior police officer and the accused during which the latter made admissions against interest. The conversation had been put down in writing by the police officer on the following day. The prosecutor did not tell the Court or the defence of this material and did not seek to lead it by endeavouring to recall the police officer who had given evidence towards the end of the Crown case. Instead, he put the conversation to the accused during cross-examination in the form of some 70 questions. The accused's counsel took no objection to the cross-examination although its source was obvious to him. At the end of the cross-examination, however, he applied to the trial judge to discharge the jury on the ground that the conversation, that was introduced at the late stage in the form of cross-examination, was an interrogation in breach of the Judges' Rules and that any admissions in it were the result of an inducement to the accused so that their introduction into evidence was objectionable. Thus, it was said, the evidence which was led through the cross-examination of the accused might have been inadmissible. The trial judge refused to discharge the jury because the accused's counsel had grounds for objecting to the cross-examination but refrained from doing so.

294. The Court of Criminal Appeal reached a contrary conclusion. It held[65] that evidence which is capable of forming part of an affirmative case for the prosecution should be tendered in the course of that case. Where it becomes available for the first time after the prosecution case has been closed, whether it can be tendered becomes a matter for the trial judge. In the present case, their Lordships said, the prosecutor should have provided the Court and defence counsel with a copy of the written note of the conversation. In their view, the failure by the accused's counsel to take a timely objection to the evidence did not preclude the discharge of the jury because what had occurred was an irregularity and whatever course the accused's counsel took (other than seeking to have the jury discharged) would have left his client's position damaged.

297. R. v. Chin was essentially concerned with the claim that the prosecution had wrongfully split its case by tendering in reply a document that could have been tendered in chief, thereby causing the trial to miscarry. In that case, the applicant Chin and his co-accused Choo were charged in relation to an unlawful importation of heroin. Both claimed that they had not previously known each other, contrary to the Crown case. After Chin's case closed, the Crown cross-examined Choo to elicit the fact that the telephone number recorded on his visa application form was that of Chin, as evidence that the two accused had previous association. No such questions had earlier been put to Chin when he gave evidence about his visa application form (which showed the same telephone number) or about the visa application of Choo. Chin was then recalled by the defence with regard to his telephone number and in cross-examination it was put to him that he knew that Choo had used his, Chin's, telephone number in Choo's visa application form. The trial judge allowed the Crown to tender Choo's visa application in reply (but only as evidence against Choo).

300. In their joint judgment, Gibbs, C.J. and Wilson, J. recognised[66] that the prosecutor may prove "by admission made by the accused under cross-examination, facts which were not proved in chief, whether because it was not possible to prove them, or simply because the Crown Prosecutor failed to advert to them." Their Honours said that generally, however, it would be unfair to raise in cross-examination "some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at the committal proceeding or in the prosecution's case in chief, unless the accused had been given prior notice of such matter." In that context, their Honours referred to that part of the judgment in Kane to which reference has already been made. Their Honours considered that, in the context of the case before them, the failure by the prosecution to give notice of its intention to adduce evidence of the document which it tendered in reply, constituted a breach of the above principles and caused the trial to miscarry. That having been the decision of the Court of Criminal Appeal, the appeal was to be dismissed.

303. Brennan, J. would have allowed the appeal. His Honour considered that there was nothing to suggest that the prosecution had the means of proving as against the applicant Chin that the co-accused Choo had signed the relevant document. It was only when Choo went into the witness box and exposed himself to cross-examination, that the prosecution was able to establish that Choo had signed the document containing the relevant telephone number.

306. So far as is relevant for present purposes, Dawson, J., with whom Mason, J. agreed, was also in favour of dismissing the appeal. Dawson, J. said[67] that the principle of fairness which underlies the general rule that the prosecution must lead the evidence, upon which it relies to establish its case, in the course of presenting it, also requires that, if in the course of cross-examination of the accused or his witnesses, the prosecution seeks to elicit evidence for the first time "which could and should have formed part of its evidence-in-chief, then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case: see Reg. v. Kane ..."

309. His Honour went on to say, however, that, subject to the rule of fairness, cross-examination "of an accused person by the prosecution may extend to all matters in issue, whether or not they were the subject of evidence-in-chief by the witness. Thus, ... there is no reason why it should not lead in cross-examination evidence which relates solely to its own case." A little later his Honour observed that it must be remembered that there may be matters peculiarly within the knowledge of an accused which the prosecution, although it is not able itself to call the accused as a witness, cannot be precluded from establishing in cross-examination if the accused goes into the witness box even though they may be matters which support the prosecution case. His Honour also said[68] that, subject to the question of fairness, there is no requirement that notice be given of evidence which the prosecution intends to attempt to elicit during cross-examination.

312. Dawson, J. concluded that the trial had miscarried because the Crown had split its case. His Honour considered[69] that the prosecution could (and should) have tendered in chief Chin's visa application form which showed the relevant telephone number as well as the co-accused's visa application form. By tendering the latter form in reply, the prosecution had split its case and caused the trial to miscarry.

315. The situation here, however, was relevantly different from that found in both Kane and Chin. First, the material in the Crown's hands, namely, the Ball statement which, in any event, was not part of the hand-up brief, could not have been tendered in chief. Moreover, given that there was a risk that Anderson would not have "sworn up" to the conversation in question, the Crown was not in a position to lead oral evidence from Anderson of that conversation as part of its case in chief. Next, whereas in Kane there was real doubt about the admissibility of the evidence in question, in the present case, provided the evidence of the Anderson conversation was led in admissible form, it would plainly have been admissible against the applicant as an admission. Furthermore, unlike the situations in Kane and Chin, in this case the topic to which cross-examination was directed, namely, the applicant's belief as to the promiscuity of the complainant was, as the learned Chief Justice observed during argument before us, opened up by the applicant's counsel's conduct of the case. The applicant's counsel cross-examined the complainant on various aspects of her life such as her change of school, the fact that she had older friends, that she engaged in experimentation with alcohol and marijuana and that she spoke about those matters to the applicant's wife and to her grandmother. Further, early in his evidence-in-chief the applicant gave evidence of his observations as to the change in the complainant's social behaviour, the complainant's friends (in particular, that they were older than the complainant and more socially active than she was) and of her discussions in his presence with her grandmother and his wife about her experimentation with alcohol and marijuana and her social life, etc. In other words, the applicant gave evidence-in-chief of his belief about the complainant's lifestyle. In cross-examination, he agreed that he knew that the complainant was prepared to say things about her social life in front of his wife which she would not say in front of her parents and that he was aware that the complainant was interested in the opposite sex. It was only then that his belief as to the applicant's promiscuity was raised. Thereafter, the impugned cross-examination followed.

318. It follows that the Ball statement could only have been used by the Crown as a source on which to base its cross-examination of the applicant going to his credit. If the applicant had denied telling Anderson that he thought the complainant was promiscuous, the Crown could not have taken the matter any further on the basis of the Ball statement. In all the circumstances, therefore, I doubt that the Crown breached the essential requirement of fairness. Having regard to what was said in Chin about the width of the Crown's right to cross-examine the accused, it is plain enough that it was open to it to cross-examine the applicant as it did. The only question is whether, in doing so without having first given the applicant advanced notice of the contents of the Ball statement, it did not act fairly. I doubt it, given the circumstances to which I have referred. It is difficult to see that, in the circumstances, fairness required that the Ball statement, which could only have been used by the Crown for cross-examination purposes, should have been made available to the applicant before the Crown embarked upon that course. In any event, given the forensic decision by the applicant's counsel not to object to the cross-examination after he had become aware that it was based on a document, it was too late for the applicant thereafter to seek to have the jury discharged on account of such cross-examination.

321. In the course of his submission to us, Mr. Holdenson did not claim that counsel at the trial was unaware of the basis on which the cross-examination was being conducted. Rather, he said that counsel's course of allowing the cross-examination to proceed and seeking, only at the end of it, to have the jury discharged, was taken because it was sanctioned in Kane. In that case, as I have said, the Court of Criminal Appeal held that the jury should have been discharged notwithstanding counsel's failure to object to the Crown eliciting evidence through cross-examination of the accused on a matter which it had not previously disclosed to the defence. This aspect of the decision in Kane, however, does not appear yet to have been approved in Australia. Rather, it seems that here it is only in extraordinary circumstances that a jury is discharged on the basis of the Crown's conduct of the case to which objection could have been, but was not, taken by the accused's counsel. In Kane, the Court of Criminal Appeal considered that the applicant's counsel could not have preserved the situation for his client even if he had objected to the cross-examination. That is not the case here. If the applicant is correct in his contention that the cross-examination was impermissible, then an objection to that course near the outset of it would have resulted in the impugned evidence not being reached. Counsel's forensic decision not to object to the evidence until after it had been led was binding on the applicant and he was therefore not entitled to have the jury discharged. The decision may have proved to be an error of judgment, but it did not amount to an egregious error or to a flagrant incompetence causing a miscarriage of justice warranting appellate intervention - R. v. Miletic[70]. The applicant was bound by his counsel's decision on that issue and his conviction cannot now be challenged properly on the basis that the evidence was inadmissible - Crampton v. The Queen[71]; Re Rattan[72]; R. v. Gay[73] and R. v. Arundell[74].

324. But even if my above conclusion is wrong, no miscarriage of justice occurred merely because the Ball statement had not been provided to the defence prior to the cross-examination of the applicant. It will be recalled that counsel contended that, had the document been available to the defence, it would have afforded the applicant the opportunity -

(a) to lead evidence, by cross-examining Crown witnesses, to establish that the complainant was promiscuous or that it was generally believed that that was the case,

(b) to have objected to the cross-examination on the basis that the evidence (that the applicant considered her promiscuous) should have been led by the Crown through Anderson,

(c) to have been examined in chief by his counsel so as to "take the sting" out of the conversation with Anderson.

330. It is difficult to accept that the applicant could or would have pursued any of those courses had he known of the Ball statement early in the proceeding. It would obviously have been against the applicant's interest to seek to establish that the complainant was promiscuous, or that the applicant thought her promiscuous. Equally, the applicant could not have objected to any cross-examination based on the Ball statement because the claimed basis for the taking of such an objection would not have been present. In the circumstances, it is not easy to see how the applicant could have been examined in chief, if the Ball statement had been available, so as to "take the sting" out of his conversation with Anderson.

333. It is important to note that it has not been suggested by Mr. Holdenson that, if the Ball statement had been earlier provided to the defence, the applicant would not have given evidence and thereby avoided the risk of being cross-examined as to his belief about the complainant's promiscuity. This is hardly surprising because, if the complainant's evidence had been left unanswered by the applicant, he could scarcely have hoped for acquittal.

336. Consequently, in my view, the applicant's argument that the conviction should be set aside because of the Crown's alleged breach of duty of disclosure, must be rejected.

340. Similarly, the applicant's claim that, by adducing the evidence in question through the cross-examination of the applicant the Crown wrongfully split its case, must also fail. This was not a case like that of Kane or Chin where the Crown could have led the relevant evidence in chief. It was assumed by Mr. Holdenson that the Crown could have led the relevant evidence through Anderson and on that basis, it was claimed that the Crown had improperly split its case. But, for reasons already given, it seems that the Crown decided not to call Anderson because there was a significant risk that he might not confirm the conversation with the applicant which Ball said that Anderson had recounted to him. Mr. Holdenson was unable to point to any error in the Crown's decision on that issue. In any event, for the reasons already given, no miscarriage of justice occurred by reason of the manner in which the relevant evidence was adduced.

(c) Inadmissible evidence contrary to s.37A of the Evidence Act

344. Assuming that this provision applies to the Crown, the short answer to the applicant's contention under this ground is that the cross-examination was directed to the applicant's belief as to the complainant's promiscuity and it was not sought to have him express any view as to what others thought of her sexual activities. It was the Crown case that the applicant's belief on this issue mattered, but it was irrelevant whether he was right or wrong about his views or whether they accorded with her general reputation.

Grounds 12 and 13 - unsafe and unsatisfactory verdicts on counts 1 and 2

351. The first two counts in the presentment allege that, contrary to s.47(1) of the Crimes Act 1958, the applicant "committed an indecent act with" the complainant. It was submitted for the applicant that s.47(1) requires the Crown to establish that the indecent act was committed with the participation (meaning the willing participation) or co-operation or consent of the complainant or in concert with her. Mr. Holdenson argued that, as there was no evidence that the relevant acts were committed with the participation or co-operation or consent of the complainant or in concert with her, the alleged conduct of the applicant was not capable of sustaining a conviction on either counts 1 or 2 and verdicts of acquittal must be entered on both counts. In my opinion the applicant's submissions should be rejected for the following reasons.

354. First, the fact that by s.47(2) consent is expressly made no defence except in certain limited circumstances (none of which was relevant here), itself suggests that otherwise consent is irrelevant. Consent, even in the limited circumstances allowed by s.47(2) would be a matter for defence; nothing suggests that the prosecution has to address, as part of its case, the question of consent. Certainly that would be the position if the indecent act was allegedly committed "in the presence of" a relevant child (also an offence under s.47(1)) and there is no reason for distinguishing that situation from one where it is alleged that the indecent act was committed "with" the child. The offence may thus be constituted by an indecent act committed in front of the child, and as well by an indecent act committed on the person of the child, and in neither case is it necessary to know whether the child was consenting or even approving. Indeed to hold to the contrary would seriously impinge upon what I conceive to have been the legislative intention.

357. Secondly, s.47, which was introduced in 1991, replaced in effect the earlier s.44 and s.50(1). Section 44(1) dealt generally with indecent assault, s.44(2) with indecent assault with aggravating circumstances, and s.44(3) with indecent assault, whether with or without aggravating circumstances, "upon a person under the age of 16 years". In this last case, sub-s.(3) went on to deny that consent was a defence except in certain limited circumstances (like those now found in s.47(2)). Section 50(1) proscribed the act of gross indecency "by, with or in the presence of" a relevant young person. In 1991, a new s.42 was enacted[75] which was soon replaced by a new s.39[76], both of them dealing generally with indecent assault (as did the former s.44(1)). At the same time as the new s.42 was enacted, a new s.47 was enacted[77] and then amended[78], to deal with indecent acts "with or in the presence of a child under the age of 16". Gross indecency was no longer dealt with separately. Obviously, s.47 was to stand in place of both the old s.44(3) and s.50(1), with this change in particular: s.47 made no reference to "assault" (as did s.44) or to the act of indecency having to be "gross" (as did s.50). To that extent at least it was wider than the earlier provisions and it seems to me obvious in context that s.47 was intended to deal fully with indecent acts involving children under the age of 16, where the question of consent was to be of limited relevance. That left the new s.42 (and its replacement, s.39) to deal with other cases, cases in which consent might of course be much more relevant. In short, s.47 is the particular provision when children under the age of 16 are involved while s.42 (and its successor, s.39) has the wider and more general application, and there is no basis for claiming that the provisions of the latter should be taken to restrict or circumscribe in some way what otherwise is the ambit of s.47.

360. Accordingly, I see nothing in the Act itself or in the history of the legislation to suggest that s.47 deals only with indecent acts against relevant children which do not constitute an assault on them. Nor do I see any reason to limit s.47 to indecent acts which, when committed "with" a relevant child, are committed with willing participation, consent, or co-operation.

363. To support the submission he made, Mr. Holdenson relied upon a number of cases, submitting that, according to these, there was no offence "with" the complainant when the indecent act was "merely" committed in the presence of, against, to or towards the complainant. It is of course fraught with difficulty to seek to derive the meaning of the words in a local statute by reference to what has been said in other cases about different expressions used elsewhere, and in my opinion that difficulty arises here. As will be seen, none of the cases upon which Mr. Holdenson relies has any bearing, in my opinion, upon the proper construction of the word "with" in s.47(1) of the Crimes Act.

366. In Crampton v. The Queen[79], the appellant was convicted of committing an act of indecency "with" another male, the complainant, contrary to the Crimes Act 1900, s.81A, as it stood in 1978. (Section 81A was repealed in 1994 when homosexuality was decriminalised in New South Wales.) According to the High Court, s.81A was concerned only with acts of indecency with another male person when both were participating in those acts or the acts were done in concert. A contrast was drawn between s.81A, as it stood in 1978, and the form of s.78Q which, after amendment in 1992, referred to acts of gross indecency "with or towards" a male person under the age of 18 years. In the context that s.81A was directed to homosexual acts irrespective of the age of the participants, it is scarcely surprising that the High Court ruled that s.81A was concerned with consensual participatory acts, or acts done in concert.

369. Much the same can be said of R. v. Preece[80], in which the Court of Appeal in England held that s.13 of the Sexual Offences Act 1956, under which it was an offence for a man to commit an act of gross indecency "with" another man in public, did not embrace an act of gross indecency with another if the indecency was directed towards the other without his consent. To hold otherwise (observed Lord Scarman, speaking for the court) would be productive of "embarrassment and distress" for the otherwise innocent witness of the indecency. His Lordship said[81]:-

"'With' involves the participation of two men - two men making a public exhibition of themselves as Lord Goddard C.J. graphically put it in Hunt [[1950] 2 All E.R. 291] at p.291."

Again, such considerations are foreign to s.47 of the Crimes Act. Moreover, it is apparent from what was said in Preece that their Lordships were concerned with cases of gross indecency "not involving physical contact"[82].

374. In R. v. Orsos[83] the question was one of duplicity. Section 61N of the Crimes (Amendment) Act 1989 (N.S.W.) made it an offence to commit an act of indecency "with or towards a person under the age of 16 years" and in Orsos it was held that an information charging an offence "with or towards" such a person was duplicitous. There is nothing in that case bearing on this, unless perhaps in the dissenting judgment of Hulme, J. His Honour pointed out[84] that the purpose behind s.61N and its predecessors was to overcome the difficulty identified in Fairclough v. Whipp[85] and D.P.P. v. Rogers[86] "in which it had been held that a person could not be convicted of indecent assault by merely inducing a child to touch or masturbate his penis". If the indecency with a girl under the age of 16 years did not amount to an assault upon her, there was need (it was thought at the time) for the creation of a new offence, focussing simply on the act of indecency - and hence the introduction of the predecessor to s.61N. Such a legislative history, if applicable at all in Victoria, points to the intention of s.47 to deal with cases not amounting to assault; but I see no reason to suppose that on that account s.47 was to deal only with cases not involving an assault. The language is not so limited: and for the reasons I have given, there is no cause to restrict the language by reference to s.42.

377. Finally, counsel for the respondent referred to Saraswati v. R.[87] and, in his oral reply, Mr. Holdenson suggested that he too gained comfort from that case. Again, that case has nothing to do with the present. The High Court was concerned with two successive provisions of s.61E of the Crimes Act 1900, sub-s.(1) with indecent assault "upon or in the presence of" another and sub-s.(2) dealing with "an act of indecency with or towards a person under the age of 16 years". It was held that a charge of committing an act of indecency with or towards a person under the age of 16 years could not be brought under s.61E(2) when the conduct relied upon was an indecent assault for the purpose of s.61E(1) or an act of unlawful carnal knowledge for the purpose of s.71 of the same statute. That was not, however, because of the language of s.61E itself, but rather because of the time limit specifically imposed by Parliament on prosecuting an offence under s.61E(1) or s.71. The time limit, which was found in s.78, was not to be circumvented, it was held, by using the provisions of s.61E(2). Rather than telling in favour of Mr. Holdenson's submission, the Saraswati case seems to me to reinforce its rejection.

380. Accordingly, grounds 12 and 13 must fail. The offences charged, if committed as alleged by the Crown, were committed by the applicant "with" the complainant and they were properly charged under s.47.

Grounds 12 and 13 - verdicts on the four counts are unsafe and unsatisfactory

384. It was submitted for the applicant that the verdicts were unsafe and unsatisfactory in the sense explained by M v. R[88]. Mr. Chettle, who by leave argued this point for the applicant, contended that the complainant's evidence was so unreliable that the jury, acting reasonably, could not have accepted it. It was contended that the complainant's evidence was critical to the Crown case with the result that this Court should conclude that the verdicts were unsafe in the relevant sense.

387. It was further argued by Mr. Chettle that, on the evidence, the applicant lacked the opportunity to commit the offences in question within the period postulated by the Crown. Hence, it was said, for that reason also, the verdicts were unsafe and unsatisfactory. It is convenient to dispose of this point first.

390. Counsel submitted that the evidence showed that on the evening of 21 September 1998 the applicant was "on call" and was in possession of a Victoria Police van, used by the Special Operations Group to convey anti-bomb equipment, high powered weapons and ammunition. That vehicle was the only one available to the applicant during the period in question because his wife had taken his car for the purpose of making the hospital visit. The applicant lived some 5.6 kilometres from the grandmother's home and, according to counsel, the evidence was that it took seven to ten minutes to drive there. Mr. Chettle claimed that it was unlikely that the applicant would have taken the van to the grandmother's home or that he would have gone there in any event, given that he knew that his wife would return from visiting a friend in hospital in half or three-quarters of an hour. Moreover, it was said, on the complainant's version of the time that the applicant was supposed to have spent with her at the grandmother's home, that it was most unlikely that he could have committed the offences and returned home by the time his wife and daughter came back, which (according to his wife) was not long after 7.30 p.m. Counsel also pointed to the fact that the complainant first claimed that the applicant was with her in the bedroom for approximately ten minutes, then said that he was in the house for some 20 minutes and then in cross-examination, extended this to approximately 30 minutes. This simply could not be, it was said; the applicant could not have offended as alleged in the time span between approximately 7 p.m. and shortly after 7.30 p.m.

393. This argument, like the other matters covered by these grounds, was put to the jury and was obviously rejected by them - and clearly, in my view, that was open to them. There is no reason why the jury should not have concluded that the applicant would not use the van for the purpose of driving to the grandmother's home, notwithstanding that it was a police vehicle containing weapons and ammunition. The fact that the van contained such equipment did not deter the applicant from parking it in the street outside his own home and so there was no reason why he would not have used it to drive himself to the grandmother's home. Moreover, there was evidence that 19 kilometres on the odometer of the van were not accounted for by the applicant as having been travelled for police purposes. The return distance to the grandmother's home was approximately 12 kilometres which could well have been part of that unaccounted 19 kilometres. Further, the evidence showed that it took between five and seven minutes to travel between the two houses (and not seven to ten minutes as contended for by Mr. Chettle). In the circumstances, it was plainly open to the jury to conclude that the applicant had the opportunity to get himself to the grandmother's home, commit the offences alleged against him in the first three counts and return home within the period between the two relevant telephone calls that were made by him from his house to the grandmother's home that evening, at 6.57 p.m. and 7.49 p.m. respectively. It was open to the jury not to accept the evidence of the applicant's wife that she returned from the hospital visit shortly after 7.30 p.m. and to conclude that she might well have returned a little later, even if it was before the applicant's 7.49 p.m. telephone call.

396. Turning to the applicant's principal argument in support of these grounds, Mr. Chettle urged that, given the illogicality of much of the complainant's evidence and the numerous contradictions and inconsistencies in her testimony, and having regard to the other evidence which threw doubt on her credibility and reliability as a witness, the jury, acting reasonably, were bound to entertain a reasonable doubt as to her evidence[89]. Amongst the apparent contradictions and inconsistencies that were highlighted by Mr. Chettle, were these.

(a) In cross-examination, as I have already mentioned, the complainant first said that she rang Rebecca that evening after the alleged offending. The telephone records, however, show that the first telephone call made from the grandmother's house to Rebecca was made at 6.26 p.m. which meant, counsel argued, that the offending must have taken place before the time claimed by the Crown. But the complainant agreed when she was shown the telephone records that one of the telephone calls that she made to Rebecca was made before the applicant's offending conduct. And, as I have said, she maintained that she spoke with Rebecca after the alleged offending and told her what the applicant had done to her.

(b) The complainant first asserted that she had called her friend Lisa after she was assaulted by the applicant. She was non-specific as to time. The telephone records, however, show that that telephone call took place at 6.39 p.m. on the evening in question, which meant, said Mr. Chettle, that the offence must have occurred earlier than was now alleged by the Crown. Once the records were shown to the complainant, however, she agreed that she made the telephone call in question before the applicant had assaulted her, not after.

(c) The complainant denied in her evidence that, on the evening in question, she had spoken to her mother by telephone. The telephone records, however, showed that a call was made from the grandmother's house to the complainant's home during the relevant period. When these records were produced to the complainant during her cross-examination, she said that she had telephoned her mother on that evening but changed her mind about speaking to her and hung up.

(d) The complainant did not complain to her mother or to her grandmother that evening of the applicant's alleged behaviour towards her. Her only explanation was that the applicant had told her not to relate what had occurred because that would wreck the family.

(e) James, the complainant's former boyfriend, gave evidence that the complainant had told him in August 1998 that she had been raped by the applicant when she was young and that the applicant had told her thereafter not to tell anyone because it would cause fights in the family. In her cross-examination the complainant agreed that she had not been raped by her uncle when she was young, but she denied making the statement to James as alleged by him.

(f) Evidence that contradicted the complainant's version of events included that of her grandmother that the bed in question did not appear to have been disturbed when she went to bed on the evening in question; that the complainant's demeanour was normal when she returned home from bingo; and that no complaint was made to her, notwithstanding that ordinarily the complainant confided in her. Counsel also pointed to the father's evidence that the complainant left home on 3 October with the dog before the applicant arrived there; and the evidence of the applicant's wife, that she did not see the complainant at her home on 3 October which she would have done, had she been there. Counsel relied also on the applicant's own evidence and the records of his movements on 3 October 1998 which, it was said, contradicted the complainant's claim that she received marijuana from him on that day.

(g) The complainant gave contradictory evidence as to the applicant's attitude to her when she and her brother went to his home to collect show bags.

(h) The complainant gave significantly different versions as to the circumstances in which the offences were said to have been committed.

402. All these alleged inconsistencies in the complainant's evidence and the evidence that contradicted her version of events were, as I have said, put to the jury with some force by the applicant's counsel. Ultimately, it was for the jury to determine whether to accept the thrust of the complainant's evidence about the offending conduct. In their deliberations they may well have had regard to the following matters in assessing whether the inconsistencies and apparent contradictions were such that the complainant's critical evidence should have been disbelieved or attended by reasonable doubt as was urged on them by the applicant's counsel.

(a) The complainant was called to give evidence on a number of occasions. The jury would have known, for example, that she was interviewed by way of two VATE tapes and had given evidence at the committal proceeding and the first trial, which might have accounted for some of the contradictions in her evidence.

(b) The complainant was young. She was aged 14 years at the time of the offending and 16 when she gave her evidence.

(c) The complainant was subjected to lengthy cross-examination. She was cross-examined for some two and a half days (243 pages of transcript) so that it was well open to the jury to consider that she was or may have been stressed when answering a number of the questions.

(d) Further, the jury might also have taken the view that some of the matters about which the complainant gave inconsistent evidence were matters not of great significance and so matters which would not have remained in her memory in detail.

(e) The complainant's credit was bolstered by the fact that she made complaint to Rebecca not long after the offending conduct took place.

(f) The complainant's explanation as to why she did not complain about the applicant's conduct to her mother or grandmother may have been accepted by the jury.

(g) The complainant's evidence as to her alleged telephone conversation with the applicant on 29 September 1998 was to some extent corroborated by an independent adult witness who said that on the occasion when she visited the complainant's home during the Longford gas crisis (and although she could not remember the date, she believed it was around 29 September 1998) she heard the complainant speaking on the telephone in a quiet and secretive voice before concluding her conversation by saying that she would take Charlotte to the park. The complainant's evidence was that she did take Charlotte to the park later that day.

408. In my view, notwithstanding the arguments of Mr. Chettle that the complainant's evidence was so unreliable that the jury was bound to disbelieve her, I am not persuaded that the verdicts were unsafe and unsatisfactory in the sense that, properly instructed, the jury were bound to entertain a reasonable doubt in respect of the offences with which the applicant was charged. In particular, the question, whether the complainant's evidence should have been accepted notwithstanding the criticism levelled by the applicant's counsel, was one within the jury's constitutional province to resolve. Although on the face of the transcript there were inconsistencies in the complainant's evidence and it could be said that some of it was illogical, the evidence as a whole was not of a nature and quality, nor were there inconsistencies and contradictions of such magnitude, that a reasonable jury was bound to reject it. The jury were entitled to weigh the criticisms of the complainant's evidence against the matters to which I have referred and to have regard to her demeanour in the witness box - and in the end, to accept the thrust of her complaint notwithstanding that they may have considered that some of her evidence was unreliable. As Charles, J.A. pointed out in R. v. Arundell[90], it is this Court's duty to assess the evidence for itself, but it is equally incumbent upon the Court to remember that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that they have the benefit of seeing the complainant and the other witnesses give their evidence.

414. It follows that I would dismiss the application for leave to appeal.

[1] (1928) 20 Cr.App.R. 163 at 164, followed in R. v. Landy [1943] VicLawRp 14; [1943] V.L.R. 73.

[2] [1977] VicRp 3; [1977] V.R. 22 especially at 29 per Young, C.J.

[3] [1954] VicLawRp 23; [1954] V.L.R. 140

[6] [1980] VicRp 58; [1980] V.R. 625

[7] [1998] 1 V.R. 503

[8] Mr. McArdle considered that, if the transcript had recorded the event, it would have been so recorded at p.87 of the transcript.

[9] [1996] VicRp 33; [1996] 1 V.R. 462.

[12] [1997] 1 V.R. 257.

[14] Burt Franklin, New York, (1983) at 274.

[17] [1990] VicRp 27; [1990] V.R. 305.

[18] Unreported, Court of Appeal, 12 December 1996.

[19] [1954] VicLawRp 23; [1954] V.L.R. 140 at 145 per Gavan Duffy, Barry and Dean, JJ..

[20] [1973] VicRp 48; [1973] V.R. 484 at 488 per Pape, J.

[21] [1960] VicRp 101; [1960] V.R. 651 at 661 per O'Bryan, Dean and Monahan, JJ.

[22] [1975] VicRp 62; [1975] V.R. 641 at 644 and 645 per Young, C.J., Lush and Dunn, JJ.

[23] [1961] VicRp 114; [1961] V.R. 740 at 741 per O'Bryan, Dean and Hudson, JJ.

[24] [1980] VicRp 58; [1980] V.R. 625 at 631 per Young, C.J., Kaye and Jenkinson, JJ.

[25] [1998] 1 V.R. 503.

[26] [1977] VicRp 3; [1977] V.R. 22 at 23-24.

[28] [2001] VSCA 63 at [4] per Ormiston, J.A.

[29] [1984] VicRp 15; [1984] V.R. 187 at 199.

[30] [1980] VicRp 1; [1980] 1 V.R. 1 at 5, 6.

[32] [1986] VicRp 64; [1986] V.R. 643 at 662.

[33] [1999] VSCA 145; [1999] 3 V.R. 355 at 356, 360-361.

[34] [1998] 2 V.R. 671 at 681 per Brooking, J.A.

[35] [2000] VSCA 5 at [76-77].

[36] [2000] VSCA 208 at [41] per Charles, J.A.

[37] [1988] 2 V.R. 636 at 652 per Winneke, P., Hayne and Charles, JJ.A.

[38] [1996] VicRp 1; [1996] 1 V.R. 1.

[40] [1998] VSCA 102; [1999] 2 V.R. 228 at 250 [57].

[41] (1991) 54 A.Crim.R. 351 at 354.3 and 356.4.

[42] [1999] HCA 32; (1999) 198 C.L.R. 1.

[43] At [30] - [31] per McHugh, J. and by Gummow, J. at [77] and Hayne, J. at [157].

[44] (1977) 65 Cr.App.R. 270.

[45] [1985] HCA 35; (1985) 157 C.L.R. 671.

[46] [1999] 3 V.R. 618.

[47] [1990] VicRp 65; [1990] V.R. 745.

[48] [1974] HCA 19; (1974) 131 C.L.R. 116 at 119.

[52] [1972] VicRp 90; [1972] V.R. 758.

[53] [1979] HCA 49; (1979) 142 C.L.R. 659 at 666-7 per Barwick, C.J., at 673-4 per Stephen, J. and at 678 per Mason, J.

[59] [1998] 1 V.R. 630.

[61] [1984] HCA 38; (1984) 154 C.L.R. 563.

[63] Winneke, P., Charles and Chernov, JJ.A.

[64] [2002] VSCA 84.

[65] (1977) 65 Cr App Rep 270 at 274.

[70] [1997] 1 V.R. 593 at 597-600 per Winneke P., Charles and Callaway, JJ.A.

[71] (2000) A.L.J.R. 133 at [14-19] per Gleeson, C.J., at [159] per Hayne, J.

[72] [1974] VicRp 26; [1974] V.R. 201 at 214 per Smith, Pape and Adam, JJ.

[73] [1976] VicRp 59; [1976] V.R. 577.

[74] [1998] VSCA 102; [1999] 2 V.R. 228 at 249 per Callaway, J.A.

[75] By s.3 of the Crimes (Sexual Offences) Act 1991 (Act No. 8 of 1991).

[76] By s. 3 of the Crimes (Rape) Act 1991 Act (Act No.81 of 1991).

[77] Also by s.3 of the Crimes (Sexual Offences) Act 1991.

[80] [1977] 1 Q.B. 370.

[83] (1997) 95 A.Crim.R. 457.

[85] (1951) 35 Cr.App.R. 138.

[86] [1953] 1 W.L.R. 1017.

[87] [1991] HCA 21; (1991) 172 C.L.R. 1.

[88] [1994] HCA 63; (1994) 181 C.L.R. 487 at 494-5.

[89] R. v. NRC [1999] VSCA 184; [1999] 3 V.R. 537 at 555 per Winneke, P.

[90] [1998] VSCA 102; [1999] 2 V.R. 228 at 254.