R v V N [2006] VSCA 111

R v V N [2006] VSCA 111 - VSCA 2006 case summary — Zoe

[13]

3 The applicant was presented on nine counts alleging different sexual offences by the applicant against his daughter between 20 October 1972 and 30 April 1988. During that period the applicant's daughter was between the ages of 3 and 18 years. The applicant pleaded not guilty to all counts. Following the close of the Crown case, no case submissions were made after which verdicts of not guilty by direction were entered with respect to 5 of the counts. On 27 January 2005 the applicant was found guilty by the jury on two counts of incest and one count of indecent assault and not guilty on the remaining count of incest.

4 On 17 March 2005 the applicant was sentenced to four years' imprisonment on each count of incest (counts 5 and 8) and six months' imprisonment on the count of indecent assault (Count 7). It was ordered that two years of the sentence imposed on count 8 and the whole of the sentence imposed on count 7 be served cumulatively upon each other and upon the sentence imposed on count 5, making a total effective sentence of six years and six months. The trial judge ordered that the applicant serve a period of four years before becoming eligible for parole and declared that 50 days had been served by way of presentence detention. Pursuant to s.6F(1) of the Sentencing Act 1991 the applicant was declared a serious sexual offender on count 8. It was directed that he had been sentenced for a registrable offence under s. 7(1)(a) of the Sex Offenders Registration Act 2004.

5 The applicant appeals against his conviction and sentence. The grounds of

appeal relied upon by the applicant necessitate some description of the circumstances upon which the prosecution relied in relation to each of the nine counts on the presentment. It was the prosecution case that between 1972 and 1988 there was a continuous sexual relationship between the applicant and his daughter. In addition to the nine offences alleged on the presentment the prosecution relied upon multiple uncharged acts during that period.

Count 1: Indecent assault of girl under 16 between 20/10/72 and 19/10/73

6 The complainant, who was born on 20 October 1969, testified that when she was three years of age she shared a bedroom in the family home with her baby brother who was born on 23 March 1972. In substance the complainant said that the applicant entered her bedroom on numerous occasions and took her to his bedroom where he would put his hands down her pyjamas and insert his fingers into her vagina. She did not testify as to a specific incident and the prosecution did not nominate a particular incident as constituting the offence charged. By direction a verdict of not guilty was entered at the conclusion of the prosecution case. It will be necessary to refer to the circumstances which led to the entry of verdicts of not guilty later in these reasons.

Count 2: Indecent assault of girl under 16 between 20/10/73 and 19/10/74

7 The complainant testified that when she was four years of age the family moved house. She continued to share a bedroom with her younger brother. When she was four the applicant, on a number of occasions, took her from her bedroom to his bedroom and put his hands down her pyjamas and inserted his fingers into her vagina. She testified that the applicant would say to her "It's okay, don't tell your mum". She testified that such sexual misconduct occurred weekly. She did not testify as to a specific incident and the prosecution did not nominate a particular incident as constituting the offence charged. By direction a verdict of not guilty was entered at the conclusion of the prosecution case.

Count 3: Carnal knowledge of girl under 10 between 10/6/78 and 20/10/78

8 The complainant testified that when she was in Grade Two and about eight years of age the family again moved house and the nature of the sexual assaults upon her by the applicant worsened. She testified that as her mother worked morning shifts whilst at this address, her mother would routinely go to bed early in the evening. The complainant said that during the evenings between 7 and 8 pm the applicant would lie on the couch with a blanket and tell her to lie on the couch with him. Under the cover of the blanket the applicant would insert his penis into her anus causing her pain. She said that the applicant told her that if she did not cooperate he would make her life hell. The complainant testified that this form of sexual misconduct continued until she was about 14 years of age. The prosecutor informed her Honour just prior to formally closing the Crown case that count 3 should have been charged as buggery (s.68 of the Crimes Act was in existence prior to the amendments of 1 March 1981) and sought leave to amend the presentment accordingly. No amendment was made. Her Honour upheld a submission that there was "no case" to answer in respect of this count. By direction a verdict of not guilty was entered.

Count 4: Incest between 20/10/82 and 19/10/83

9 The complainant testified that when she started her "teens" she accompanied her father and brother to visit the applicant's cousin in Maryborough. On the way home she said she was sitting in the front seat, her brother was asleep in the back seat and the applicant was driving. The applicant told her that he wanted to have sex with her and pulled the vehicle over onto a gravel road behind some trees. She gave evidence that she was made to crouch on all fours with her head touching the passenger side window and the applicant inserted his penis into her vagina and had sexual intercourse with her before ejaculating. Count 4 on the presentment alleged that anal intercourse had taken place on this occasion. In cross-examination the complainant acknowledged that she had said to the police that this incident involved anal intercourse and then testified that it had been vaginal intercourse. The jury returned a verdict of not guilty in respect to this count.

Count 5: Incest between 10/10/84 and 19/10/85

10 The complainant gave evidence that she recalled the occasion when she first menstruated. She was then 15 years of age and it was getting close to summer time. She was cleaning inside the house and her mother was at work. Her brother was not in the house. Her father approached her and told her he wanted to have sex with her. She testified that she would always say "no" to his sexual advances. The applicant took her to the couch which had the blanket on it and inserted his penis into her vagina before ejaculating. The complainant said that she pulled her pants up and ran off to the toilet and then realised that she had had her first "period". The applicant was convicted on this count.

Count 6: Incest between 10/10/84 and 19/10/85

11 The complainant testified that her father had frequently inserted his penis into her anal passage while they were in the kitchen of their home. She did not testify as to a specific incident and the prosecution did not nominate a particular incident as constituting the offence charged. The complainant testified that this conduct first occurred approximately three to four months prior to her ninth birthday when the applicant told her that she would have to have sex with him if she wanted a pair of roller skates for her birthday. A verdict of not guilty by direction was entered at the end of the prosecution case.

Count 7: Indecent assault; Count 8 - incest - between 10/10/85 and 19/10/86

12 The complainant said in evidence that when she was 16 years of age she had a double bed in her room. She identified this as being at a time when she had braces on her teeth. She testified that she was at home on a week day with her father and nobody else was at home. She said the applicant entered her bedroom, removed his pants and got into her bed. The applicant laid on his back, told her to pull her pants down and "get on top of him". The complainant said that she would always say to him that she did not want to do it. The complainant sat on top of the applicant and after refusing his request for a kiss the applicant forced her to kiss him on the lips. Whilst this occurred the applicant's penis was inside her vagina. She said intercourse lasted for about five minutes before the applicant ejaculated on his stomach. The applicant was convicted on both of these counts.

Count 9: Incest between 1/3/88 and 30/4/88

13 The complainant testified that when she was 18 years of age she recalled during her first year of TAFE, possibly in September, that she missed the train home. When she arrived home later than usual the applicant became irritable and accused her of being with another boy. She denied the suggestion. The applicant slapped her face and called her a liar. He then told her that he wanted to have sex with her and forced her to pull her pants down and inserted his penis into her vagina and had sexual intercourse with her until he ejaculated. The count on the presentment alleged anal intercourse. By direction a verdict of not guilty was entered at the conclusion of the prosecution case.

Ground 1: Admission of evidence of complainant's brother

14 Ground one read as follows:

[15]

15 Prior to the empanelment of the jury, application was made to exclude the evidence of the complainant's brother that when he was 12 or 13 years of age he saw the applicant in bed with the complainant most weekends. He said he made these observations for a few years. The prosecution sought to adduce this evidence as relevant to the relationship between the applicant and the complainant. It was submitted by the defence that his evidence was not linked in time with any count on the presentment and that it was not anticipated that the complainant would testify that her brother ever observed her and her father together in bed. The trial judge ruled the evidence admissible as evidence of relationship, although the evidence was not referable to any particular count.

16 Following the complainant's evidence, the application to exclude the evidence of the complainant's brother was renewed. It was submitted that as he would say he was 12 or 13 when he made such observations, his evidence must relate to counts 7 and 8. As it was anticipated he would say he made these observations on the weekend and as the complainant had testified that the offences, the subject of counts 7 and 8, had occurred on a weekday when her brother was not at home, his evidence was irrelevant.

17 The prosecution submitted that the complainant's evidence disclosed that such conduct had occurred on numerous occasions and that the evidence went to the nature of the relationship between the applicant and the complainant. The trial judge again ruled the evidence relevant under the rubric of "relationship evidence" and referred to the decision of R. v. Salter[1] as permitting the admission of uncharged acts.

18 The complainant's brother then gave evidence that at the age of 12 or 13 he would find his father in bed with his sister in her room "pretty much every Saturday". He said that this continued on weekends until he started leaving the house early in the morning on the weekend when he was 13, 14 or 15.

19 In support of this ground counsel for the applicant contended that the evidence was irrelevant and inadmissible because it was not tied to any count and was not evidence of an uncharged act or proof of an illicit relationship.

20 Counts 5 to 8 span the period October 1984 to October 1986, being the period when the complainant was 15 and 16 years of age. The complainant testified as to both charged and uncharged acts committed by the applicant during this period. The evidence of her brother's observations, during the period he was 12 to 13 years old, covers much of the period specified in counts 5 to 8.

21 It was the complainant's testimony that she was 16 when the applicant got into her bed for the first time and vaginal intercourse occurred. There was some uncertainty in the complainant's testimony as to when during the week the incident occurred and where her brother was at that time. Assuming that the complainant's brother's observations did not include the incident constituting count 8 as described by the complainant, his observations were nonetheless closely linked in time and place with the act alleged in count 8. It was not evidence that was remote in time or place from the acts charged but it was evidence that during the very period, and in the very place alleged by the prosecution, the applicant was regularly observed with his daughter.

22 In the present case, the complainant's account that her father visited her bed and forced her to submit to vaginal intercourse was in issue, as was her claim that he used to enter her bed when she was between 15 and 16 years old. It was submitted on the applicant's behalf that the evidence of the applicant's regular visitations to his daughter's bed amounted to no more than evidence of opportunity. Whether or not the unusual circumstance of a father's regular presence in his 16 year old daughter's bed could found an inference of sexual impropriety, I consider that such conduct revealed a relevant intimate relationship of a continuing nature and was capable of supporting the complainant's account of the events which constituted count 8. This evidence permitted the inference that the applicant had a predilection towards the complainant and had the opportunity to engage in the conduct alleged by the complainant. [2]

23 It was submitted that the trial judge had erred in placing reliance upon a passage from the judgment of O'Bryan, A.J.A., in R. v. Salter[3], where His Honour referred to "inappropriate or improper conduct" which was not the subject of the particular charges, and stated that such evidence may be utilised in considering "the relationship of the parties and thus the probability or improbability of the charged acts having occurred in the manner that has been alleged".[4] Those observations, which are in accordance with well recognised principle,[5] were relevant to the issue her Honour was called upon to resolve.

24 In R. v. BJC,[6] Byrne AJA undertook a comprehensive and helpful examination of current authority dealing with uncharged sexual acts admitted as probative of an improper sexual relationship characterised by a guilty passion. An accepted basis for the admission of propensity evidence exists "where it served to show a guilty relationship and sexual passion held by the accused toward the complainant".[7] The expression "guilty passion" is intended to describe an attraction "of the kind and duration which would make it relevant to explain some other event or events which form the subject of the presentment and tend to make it more likely that one or more of them occurred".[8] Byrne AJA in BJC noted that evidence of this character is to be treated as propensity evidence, the admissibility of which, pursuant to s.398A of the Crimes Act 1958, depends upon whether the trial judge considers that "in all the circumstances it is just to admit it despite any prejudicial effect on the accused".[9] Where it is admitted, a propensity warning is required.

25 It was further argued on the appeal that the complainant's brother did not observe uncharged acts of sexual misconduct and therefore it was not relationship evidence in the true sense so that the principle had no application. I cannot agree that the principle is to be so confined.

26 Propensity evidence was not at common law limited to evidence which disclosed the commission of other crimes.[10] Evidence of conduct which is demonstrative of a particular relationship between the parties and bears upon the probability of the charged acts having occurred is relevant whether or not the conduct amounts to a criminal offence.[11] Where the evidence of relationship is capable of supporting an inference of impropriety or the commission of a crime on occasions which are not the subject of the particular charges, a propensity warning will be required. Where the relationship evidence is not of this character but is merely evidence supportive of the complainant's testimony, no such warning is called for.[12]

Application of s.398A of the Crimes Act

27 In the alternative it was contended that if the complainant's brother's evidence could support the inference of the existence of an "illicit sexual relationship" between the applicant and his daughter, the trial judge had failed to refer to and apply s.398A of the Crimes Act as the evidence would be "propensity" evidence. Secondly it was submitted that the trial judge had failed to balance the prejudice of the introduction of such evidence against its probative value.

28 It appears to have been accepted by the parties during the course of the application to exclude this evidence that the complainant's brother's observations were not referable to any count on the presentment. The prosecution characterised the anticipated testimony as "relationship evidence" which would demonstrate "a guilty passion or an illicit sexual desire for the complainant". The defence had submitted that as the evidence could not be linked to a count on the presentment or to any uncharged acts, the admission of the evidence was highly prejudicial.

29 The Crown did not dispute that this was propensity evidence and that the judge was required to assess the probative force of the evidence against its prejudicial effect.[13] The evidence was properly characterised as propensity evidence because it was capable of supporting the inference of some impropriety by the applicant on those occasions which were the subject of the charges.

30 Section 398A does not introduce a discretion to exclude evidence that is admissible but prescribes when propensity evidence becomes admissible.[14] The admissibility of propensity evidence under s. 398A is a question of law. The test set out in s. 398A(2) is not far removed from the common law test which was applied prior to its introduction. Section 398A does not do away with the common law requirement that the probative value of propensity evidence must exceed its prejudicial capacity if it is to be admitted.[15] The trial judge must determine whether it is "just" to admit the evidence despite its prejudicial effect. Section 398A is concerned with the prejudice that may flow from the impermissible use of evidence as part of the jury's process of reasoning. In this context the term "prejudice" carries the meaning explained by Gleeson CJ in Festa v. R.[16] The prejudice of which s. 398A speaks will "rarely be a prejudice which flows from evidence which is strongly probative".[17] Evidence which establishes a guilty passion, although propensity evidence, generally has a sufficiently high degree of relevance to justify its admission.[18] Legitimate evidence of relationship will usually be admitted because, if proper directions are given, the probative value of such evidence ordinarily will outweigh its prejudicial effect.[19]

31 The applicant's outline of submission suggests that her Honour did not follow s. 398A but exercised the "Christie" discretion. Defence counsel did not invite the trial judge to exclude evidence that was admissible. The trial judge's discretion was not invoked. It is evident that her Honour ruled upon the question of admissibility and was not exercising the Christie discretion even though no reference was made to s. 398A. In any event, nothing would turn on such an error. In R. v. PFD, the trial judge was not referred to s. 398A and was asked to exercise the Christie discretion and determine whether the probative value of the propensity evidence exceeded its prejudicial effect. R. v.. Memery[20] was another case in which propensity evidence had been ruled admissible without reference to s. 398A. The Court found there was no error as the trial judge had in substance made the determination that was called for by the section.[21]

32 In ruling the evidence was relevant to the nature of the relationship between the applicant and his daughter, her Honour undertook the task required by the section. The trial judge recognised that a propensity warning would be required in relation to such evidence. Her Honour was alive to the need to assess the probative value of that evidence and did so.

33 Were it to be concluded that the trial judge had not sufficiently considered the probative value of the evidence and whether it was "just" to admit it, this Court could evaluate for itself whether it was "just" to have the evidence admitted within the meaning of s. 398A(2).[22] In R. v. Mong this Court undertook its own evaluation of the propensity evidence to determine whether the test in s.398A had been satisfied.[23]

34 The evidence was, in my opinion, properly admitted as it was evidence tending to establish matters relevant to the relationship between the applicant and the complainant. The evidence had probative force as tending to make it more likely that the subject offences had been committed, placing the evidence of the complainant in a more realistic and complete context.[24] In addition to its use as "relationship evidence", it was also open to the jury to treat such evidence as referable to count 8. The impugned evidence was neither irrelevant nor lacking in probative value. It was not evidence that could merely be characterised as "background" or contextual evidence.[25] Where there is an ongoing relationship between the accused and the victim, "evidence of the nature of that relationship will frequently be relevant to the issues in dispute for the purposes of permitting logical inferences to be drawn bearing upon those issues".[26] The complainant's brother's evidence was relevant to uncharged acts referred to by the complainant which she said occurred in various places in the family home including her bedroom.

Uncharged acts subsequent in time to acts charged

35 It was also submitted that in balancing the prejudicial effect of this evidence against its probative value, the trial judge failed to give consideration to the fact that the multiple occasions of sexual abuse in the complainant's bedroom must have occurred after the charged act constituted by count 8. Reliance was placed upon a passage from the judgment of Hunt, C.J. at C.L. in R. v. Beserick[27] in support of the contention that subsequent conduct was too remote in time and that the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity. This passage from the judgment in Beserick was referred to with approval by Heydon, J.A. (as he then was) in R. v. Dann.[28]

36 Whether less weight should be afforded to subsequent sexual activity than to previous sexual activity was recently considered by this Court in R. v. GH.[29] In the joint judgment of Vincent, Nettle, JJ.A. and Osborn, A.J.A. this Court said:

[23]

"You have heard some evidence of sexual activity between the complainant and the accused, other than that which is the subject of the charges before you; for instance you have heard the complainant's evidence of what she says occurred when she was younger and you have heard her brother's evidence that he frequently saw his father in his sister's bed with her on Saturday mornings when her mother was at work. As a matter of law, that evidence is admissible as an exception to the general rule excluding such evidence. It is admissible in this case for two main reasons. The first reason is that you may, if you accept that evidence, use it to determine whether there was a sexual relationship in existence between the accused and the complainant. If you are satisfied that there was such a relationship in existence, you may use that to assist you in determining whether you accept the allegations of the complainant. The law recognises what is sometimes termed as the guilty passion of an adult for a child. If you find that to be established by the evidence here, you may use it as capable of making more credible the evidence of the complainant that the sexual activity which she alleges did take place on those particular occasions. The second reason is that it enables the evidence relating to the alleged offence to be placed in a more complete and realistic context. You may, if you accept that evidence, appreciate the significance of what may otherwise seem merely to be an isolated act occurring without any apparent reason. So it is for these reasons that this evidence is permitted to be given. You must understand that although this evidence may be received by you it is admissible for the two limited purposes which I have explained and only for those purposes. In the long run you must be satisfied of the guilt of the accused, of the actual charge or charges brought, before you may convict him. You may not substitute evidence of some other incident, not the subject of the charge, for the evidence in support of a charged incident. Above all, you must be careful and precise in your processes of reasoning. You may use the evidence of uncharged acts in considering the relationship of the parties and thus the probability or improbability of the charged acts having occurred. But it would be wrong, prejudicial and contrary to law for you to reason that because the accused had engaged in some improper conduct or in some other crime or crimes, he was the kind of person who was likely to have committed the crimes charged and to use such a conclusion as evidence that he had committed them or any of them. Whether you are satisfied beyond reasonable doubt of the guilt of the accused of the one count of committing an indecent act with the complainant and the counts of incest is something you must decide on the evidence which relates to each allegation. I will at a later stage give you further directions concerning other evidence which is before you and the use you may make of it. For the present it is sufficient that you understand how you may regard evidence of previous sexual activity between the accused and the complainant and the limited way in which that evidence may be used."

[26]

45 The directions given by her Honour were in accordance with those suggested in R. v. Grech.[37] Later in the charge her Honour warned the jury to scrutinise the complainant's evidence closely and in substance directed the jury that there was no corroboration of the complainant's testimony in relation to each count. This direction, which is not the subject of complaint on appeal (nor could it have been as it was, if anything, too favourable to the applicant), concluded with an instruction that the complainant's brother's evidence did not concern any of the alleged incidents that were the subject of each count.

46 As to grounds 2(a), (b) and (c) it was said that her Honour fell into error in instructing the jury that the impugned testimony was evidence of "sexual activity" between the applicant and his daughter, as the complainant's brother's evidence amounted to evidence of no more than opportunity. It was submitted that her Honour's later reference to taking the impugned evidence into account "in a more general way" was too vague and invited the jury to misuse the evidence. It was said that this direction did not comply with that suggested in Grech, and that the risk of misuse was increased because her Honour did not then give the jury the further explanation which she had promised. Complaint is made that by linking the impugned evidence with the complainant's evidence of uncharged acts, there was a risk that the jury would treat the complainant's brother's observations as disclosing sexual activity and as constituting uncharged acts.

47 No complaint is made about the directions which were given which explained the limited use which the jury could make of the evidence of uncharged acts. Whether or not the impugned evidence was evidence of "sexual activity", that evidence and the evidence of uncharged acts were admitted for the same purpose and were subject to the same limitations of use. The jury was given a conventional direction that such evidence permitted the charged acts to be placed in their proper context, that such evidence could be used in considering the relationship of the parties and that it could be taken into account in considering the likelihood of the charged acts as alleged by the complainant. Those directions were accompanied by the necessary warning that it was impermissible to engage in propensity reasoning.

48 The challenge to the complainant's brother's evidence was plain. It was put to him that he had never seen his father in his sister's bed. The applicant in his testimony rejected the suggestion put to him in cross-examination that he used to get into his daughter's bed. Her Honour subsequently summarised the testimony of the complainant's brother. No exception was taken to the trial judge's directions concerning uncharged acts or the evidence of the complainant's brother. While it was open to the jury to act upon the impugned evidence as tending to support the allegation that the applicant had a sexual relationship with his daughter, there was in my view no risk that the jury misunderstood the nature of the evidence or employed it to reason in an impermissible way. It was evidence which, if accepted by the jury, tended to support the complainant's allegation that there was an improper sexual relationship and a guilty passion which existed between the applicant and the victim, which tended to make it more likely that the offences alleged by the complainant had in fact been committed.[38]

49 I see no error in the trial judge's subsequent direction that the impugned evidence was not relevant to a specific count but that it could be used in the more general way to which the trial judge had already referred. This was a reference to the direction which I have set out and which conformed with the directions discussed in Grech and Best. Counsel for the applicant argued that a further direction was contemplated and required by the trial judge. It was said her Honour's subsequent references to the fact that the impugned evidence did not confirm the complainant's allegations as to specific incidents was not a sufficient explanation. I am unable to agree. The directions given by her Honour were sufficient and no further direction was called for.

Ground 2(d): Failure to give Edwards direction

50 The applicant in evidence directly contradicted the testimony of his son that he got into his daughter's bed. He said that was not true. It was submitted that, if the jury accepted the son's evidence and rejected the applicant's account, it was inevitable that they would conclude that the applicant had lied. Counsel for the applicant argued there was a substantial risk that the jury would conclude that such a lie was told in order to hide the applicant's involvement in something illicit, including the offences charged, and that it was incumbent on the trial judge to give a direction on lies and consciousness of guilt in accordance with Edwards v. The Queen[39] or, alternatively, in accordance with Zoneff v. The Queen.[40] Because the prosecution had invited the jury to rely upon the son's evidence as tending to prove a relationship between the applicant and his daughter, it was submitted that there was an increased risk that the jury would reason impermissibly if they concluded that the applicant had made a false denial in the course of his testimony.[41]

51 The prosecution did not invite the jury to draw an inference of a consciousness of guilt from any denial made by the applicant during his testimony. Neither in cross-examination or in his closing address did the prosecutor make such a suggestion. The trial judge perceived no need to give an Edwards direction and no exception was taken following her Honour's charge. Nevertheless it was submitted that an Edwards or Zoneff direction is necessary where the applicant in court not only denies the charges upon which he is presented but denies a fact which if accepted may lead to a conclusion of guilt.

52 Senior counsel for the Crown relied upon the following passage from the joint judgment of Gleeson, C.J. and Hayne, J. in Dhanhoa v. R.[42] in which their Honours said:

[28]

53 It was once thought that only a lie told out of Court could constitute an implied admission.[44] It is now recognised that there is no valid distinction to be drawn between lies told "in court" in the course of testimony in the trial and lies told "out of court".[45] There is no reason in principle why lies told by an accused in the course of his or her testimony may not amount to an implied admission of guilt which may require an Edwards direction_._ The judgment of Brennan J[46] in Edwards v R., in which reference is made to R. v. Perera,[47] and the joint judgment of Deane, Dawson and Gaudron, JJ.[48] make that clear. Where the evidence of the accused is capable of being construed as a deliberately false explanation told with a particular motive, the prosecution is entitled to rely upon the false explanation as an implied admission. The trial judge will then be required to give an Edwards direction. R. v. Nguyen[49] was such a case.

54 In R. v. Trinh[50] it was emphasised that "a simple denial by an accused of guilt of the offence charged can rarely, if ever, be used by the jury as a lie evidencing guilt because the lie could only be established by proof by the prosecution of the crime charged."[51] An accused's testimony may be construed as an implied admission where it involves a denial of facts asserted by prosecution witnesses or where the accused asserts facts or offers an explanation which the jury concludes is false and where it can be inferred that the motive for giving such evidence is a realisation that the truth as to those facts will implicate the accused in the crime with which he or she is charged.

55 But an Edwards direction is not called for merely because the jury may conclude the accused has given false testimony of this kind. There must be some circumstance which gives rise to a risk that, in the absence of an appropriate direction, the jury may use the evidence as constituting an implied admission. That risk will most commonly arise where the prosecution either directly or indirectly has suggested during the course of the trial that such an inference should be drawn from an accused's testimony. But the course adopted by the prosecution will not always be determinative. There will be occasions where the very nature of the accused's lies or conduct makes the inference a prominent one requiring such a direction.

56 In the present case no suggestions were made by the prosecution that such an inference should be drawn, nor was the lie one which would give rise to a risk that the jury would do so. An Edwards or Zoneff direction will not be called for simply because the accused gives evidence which directly contradicts the testimony of a prosecution witness. This ground is not made out.

Ground 3: Course of trial following directed acquittals

57 Ground three was in the following terms:

[30]

58 Counsel for the applicant abandoned ground 3(a) during the course of his submissions.

59 None of the counts which was the subject of an acquittal by direction stated a specific date upon which the offence was committed. Each count alleged the offence to have taken place between specified dates. Such a pleading is not uncommon, the date not being an essential part of the alleged offence.

60 The evidence of the complainant disclosed numerous indecent assaults within the period specified in counts 1 and 2, numerous acts of carnal knowledge in relation to count 3 and numerous acts of anal intercourse in relation to count 6. The Crown had anticipated that such evidence would be given. It opened its case to the jury on the basis that the applicant had sexually abused his daughter on a continual basis between 1972 and 1988. The jury was told that the complainant would give evidence that the type of conduct specified in each of these counts occurred on a regular basis during each period alleged and the complainant would be unable to identify a specific occasion within each period to distinguish it from all of the others. The jury was told that the complainant would give evidence that, in addition to the charged offences, there were frequent uncharged acts of penile penetration which occurred two to three times a week during the period that the complainant was aged seven to eighteen. Those acts were said to have occurred within the period of time specified in Counts 3 to 9.

Procedure where latent duplicity

61 No objection was taken to the form of the presentment by defence counsel after the opening and no application was made that the prosecution make an election as to one specific act as the offence charged within the period specified in the count. As many of the offences alleged by the complainant fell within the description of the offence in the relevant count there was, as described by Dixon J in Johnson v. Miller[52], a "latent ambiguity" which had to be redressed if the applicant was to have a trial according to law. Where a count charges one offence and the evidence called establishes more than one instance of such offending, there is what is sometimes called "latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown".[53] The "ambiguity" was known to counsel for both parties and the trial judge, before the complainant commenced to give her evidence. If there would be no injustice, the prosecution ought to have been required to make an election, as soon as the defect became apparent, indicating which of the acts, which would be revealed by the complainant's evidence, was the offence charged in each count.[54]

62 The prosecution may also discharge its duty, if no injustice would be caused, by amendment of the presentment, or by furnishing particulars which sufficiently identify which act within the period is relied upon. In DPP v. Lewis[55] the prosecution, relying upon many uncharged acts in the period specified in each count, provided particulars stating that it relied upon the first such act in each of the specified periods. Tadgell J.A., with whom Ormiston and Charles JJ.A. agreed, found that the technique of particularising the act that was the subject of the charge as the "first occasion" gave sufficient certainty to the count.

63 The Court in Lewis adverted to the difficulty in providing particulars of the offence charged when it was an incident within a series occurring over a period and there was "neither a known date nor any unique physical feature to distinguish the incidents from others in the series". Tadgell, J.A. later continued:

[32]

64 One of the reasons for requiring the prosecution to amend, provide particulars or make an election where a count is bad for duplicity is to avoid the uncertainty which is otherwise attendant upon a conviction or acquittal.

Whether plea of autrefois acquit available if Counts 1 and 2 were bad for latent duplicity

65 The complainant testified as to multiple sexual offences committed by the applicant against her during the period covered in counts one and two. The prosecution did not identify a specific occasion during the periods in count 1 and 2 as constituting the act specified in count one or two. It was not until the no case submission was made that the prosecutor relied upon the course which had been approved in DPP v. Lewis.[57]

66 This "election" was in response to defence counsel's no case submission that the prosecution had not attempted to identify a specific act from amongst the many acts to which the complainant had deposed. Defence counsel objected to the prosecution being permitted to make such an election at the conclusion of the prosecution case. Complaint was made that the prosecution had given no prior indication that it intended to rely upon the first act within the periods specified in each of counts 1 and 2. It was further submitted that there was insufficient evidence to identify the first occasion and separate it from the other acts alleged by the complainant within the same period. The failure by the prosecution "to fix it up before leaving it to this late stage" was said by defence counsel to mean that there was no case to answer on counts 1 and 2.

67 In her ruling the trial judge upheld the no case submissions but gave no reasons. The trial judge ruled there was no case to answer on counts 1, 2, 3, 6 and 9. The jury was then directed to acquit on those counts and did so. Whether or not the prosecutor's attempted "election" on counts 1, 2 and 6 should have been viewed as sufficiently specific and timely was not the subject of argument on this appeal.

68 The applicant gave evidence and denied any sexual abuse of his daughter. In the applicant's evidence in chief, defence counsel examined him about events which related to the period covered by the counts upon which there had been a directed acquittal. He was examined in chief about the entire period covered by the complainant's testimony. The applicant's wife also gave evidence and was similarly examined about events during the period the complainant was three to 18 years of age. In cross-examination the prosecutor put to the applicant the specific allegations in counts four, five, seven and eight. He further put to the applicant that the complainant's evidence during the trial was "all true and correct". The applicant denied this allegation. No objection was raised by either party to this evidence.

69 In the course of her charge the trial judge told the jury that it need not be concerned with the complainant's evidence in relation to the counts upon which the applicant had been acquitted but that the jury may use that evidence "to consider the relationship between the complainant and the accused in the limited way I have just explained to you". That was plainly a reference to the directions concerned with the evidence of uncharged acts and relationship which I have set out earlier.

70 It was submitted that it was wrong for her Honour to have directed the jury that they could use the evidence in support of those counts for any purpose adverse to the applicant when he had been acquitted of those counts as a "former acquittal could not be called in question by the Crown in the subsequent trial".[58] These propositions are said to be derived from the principle stated in Rogers v. R., [59] R. v. Storey;[60] and R. v. Young,[61] which speaks of the need for decisions of the Court, unless set aside or quashed, to be accepted as "incontrovertibly correct".

71 Implicit in this argument is the proposition that, had the applicant again been presented for the same offences as the offences upon which he had been acquitted, a plea of autrefois acquit would have been effective. The conclusive aspect of a plea of autrefois acquit upon which the applicant relies insists upon the "incontrovertible character" of judicial decisions. Neither party addressed argument as to the underlying question of whether the directed verdicts of acquittal on counts 1 and 2 could form the basis for a plea of autrefois acquit in relation to a count which was bad for latent duplicity.

72 Each of the judgments in S. v. R[62] adverts to the difficulty which a person would face if acquitted or convicted of an offence where the count is bad for duplicity. The absence of specificity as to the act constituting the offence will raise uncertainty as to what act was the subject of the offence upon which he was acquitted or convicted. [63]

73 In Parker v. Sutherland[64], Reading CJ said:

[38]

The English Court of Appeal in R. v. Dabhade[72] adopted the view of Lush J in Hayne v. Davis, stating that where a count is dismissed because it is bad for duplicity, "it cannot be properly said that the defendant had ever been in jeopardy of a conviction."[73]

77 In R. v. Trotter[74] the Court found a verdict uncertain that was based upon a count that was bad for duplicity, as the applicant could not demonstrate which act the jury had found to be the offence. The court asked rhetorically "Could the applicant have been able to raise a plea of autrefois acquit had he been subsequently presented on the same offence as the one upon which he had been convicted?" Subsequently in R. v. Senese[75] this Court has said that the answer to the question posed in Trotter - whether a plea of autrefois acquit would be open if a verdict was tainted by latent uncertainty - must be in the negative.

78 In the present case, in relation to counts one and two, the verdicts of acquittal were based upon the failure of the prosecution to identify which of the many acts of indecent assault that fell within the period specified in the count was the offence charged. The very basis upon which the applicant had sought and obtained an acquittal on those counts meant that no specific offence had been identified which was the subject of the verdict of acquittal. The plea of autrefois acquit could not be called in aid.

79 No application was made for the jury's discharge following the entries of acquittal. The argument that the trial judge should have discharged the jury following the entry of verdicts of acquittal was rightly abandoned by counsel for the applicant.[76] Though there can be no inflexible rule, the entry of verdicts of acquittal in a trial involving multiple counts on the presentment will not ordinarily require the discharge of the jury but the jury must be warned against the impermissible use of evidence that has been led on those counts and directed as to any limited use that can thereafter be made of such evidence.

Whether continued reliance upon the evidence relating to counts 1, 2, 3, 6 and 9 controverted the applicant's acquittal

80 As to grounds 3(b) (c) and (d), counsel for the applicant submitted that it was wrong for the prosecutor to have cross-examined the applicant upon the complainant's evidence in support of those counts on which he had been acquitted and that the prosecutor should not have been permitted to suggest to the complainant that those allegations were true. The argument of the applicant (who relies upon Garrett, Storey and Rogers), is in substance that the acquittals entered by direction are conclusive of the matters determined in his favour by virtue of those verdicts.

81 For the reasons already given, such an argument cannot be sustained in relation to counts 1 and 2 which were bad for latent duplicity. As to the other counts, it is necessary to determine whether the acquittals preclude the prosecution from relying upon evidence led in support of them.

82 The applicant relies heavily upon the decision of the Court of Appeal in R. v. Young. The vice in the Crown case in Young was that the prosecution called evidence seeking to establish that the applicant had been guilty of indecent assaults on three occasions in respect of which there had been final verdicts of acquittal. The Court said:

[40]

83 The Court concluded that the jury were invited to reach conclusions with respect to the accused's conduct which were directly inconsistent with the acquittal of the accused in relation to that same conduct on the prior trial and that such a course was impermissible and was an abuse of process.[78] It found it unnecessary to say anything as to the position "where verdicts are directed or entered by reason of want of jurisdiction or the like".[79]

84 The Court in Young referred to Kemp v The King,[80] in which a conviction was overturned where the prosecution, on a re-trial on a count of indecent assault, tendered evidence of similar acts of indecent assaults upon the complainant by the accused, which had been the subject of counts at the first trial and upon which the accused had been acquitted.

85 It was recognised in Young that there would be circumstances in which evidence, which may have established the offence the subject of an acquittal, may be admissible in subsequent proceedings. The court referred to R. v. Calcedo[81] in which evidence, which had been led on a count on which there was a directed acquittal, was led again in the course of a subsequent trial on a different count. As the evidence was not called "for the purpose of calling in question the previous acquittal",[82] the conviction was upheld. The judgment in Calcedo's case was also considered partly explicable by reason of the difficulty in determining precisely what had been resolved by the previous verdict of acquittal for the purpose of giving it its full effect. Similarly, in R. v. P,BR[83] it was held that the prosecution was not precluded from leading evidence at a second trial as to conduct of the applicant when he had been acquitted on counts alleging offences for the same conduct on the same evidence in the first trial. The court considered it of significance that it was not possible to determine what findings the jury may have made in the first trial.

86 In R. v. Storey, Stephen, Mason, Jacobs and Aicken JJ, in a joint judgment observed that an accused's acquittal did not preclude the admission of relevant evidence which tended to show the accused guilty of that offence if the jury can be and is directed not to interpret it in such a way as to deny the acquittal.[84] In R. v. Osborne,[85] Chernov J.A., with whom Phillips C.J. and Vincent J.A. agreed, observed in circumstances not dissimilar to the present, that the Crown was not precluded from relying upon evidence which had been introduced in relation to counts which were the subject of an acquittal by direction, in support of the remaining counts.[86] The joint judgment in the High Court in Phillips v. R[87] also illustrates that conduct relating to an offence of which an accused has been acquitted may be introduced by the prosecution in a subsequent trial in support of another offence. It can be seen that compliance with the principle that an acquittal must be recognised fully and without qualification for all purposes in criminal proceedings does not necessarily entail the exclusion at a later trial of relevant evidence led in the previous trial.

87 The Crown relied upon a number of recent persuasive authorities to the effect that finality of the verdict of acquittal is not controverted because evidence is introduced on a subsequent prosecution which shows or tends to show that the accused was in fact guilty of an offence of which he had earlier been acquitted. The House of Lords in R. v. Z[88] and the New Zealand Court of Appeal in R. v. Degnan[89] found that evidence of prior acts was admissible as similar fact evidence despite the fact that it might show or tend to show that the person was in fact guilty of a crime of which he/she had been acquitted. The Canadian Supreme Court has reached a contrary conclusion.[90] These cases were considered in R. v. Carroll[91] by Gleeson CJ and Hayne J who, in a passage of their joint judgment, observed:

[42]

88 Although these cases are concerned with similar fact evidence, the Crown submits, and I assume without deciding, that the principle referred to in these cases applies equally to "relationship evidence". It is also submitted by the Crown that the decision of this Court in R. v. Young is now attended by considerable doubt and may no longer be correct. I do not find it necessary to reach a concluded view as to these submissions.

89 Counsel for the applicant submitted in the alternative that if the evidence was admissible, the jury should have been instructed as to the legal consequences of the acquittals, and should have received directions as to how they could make use of the evidence. It was submitted that, at a minimum, the jury should have been directed as to the reasons for which each acquittal by direction had been entered, so that the benefit of that acquittal was not lost as a consequence of the direction that the jury might use the evidence in determining the nature of the relationship between the applicant and his daughter. No such request was made at the time and probably for good reason. Any analysis of the reasons underlying each directed acquittal was not likely to be advantageous to the applicant.

90 In Osborne there does not appear to have been any specific direction to the jury as to the evidence which related to the counts on which the accused had been acquitted. Like the present case, the trial judge explained to the jury that the prosecution relied upon the evidence of relationship as evidence which was relevant to the accused's subsequent conduct and gave the jury a conventional warning in relation to propensity evidence.

91 Evidence of conduct which was relied upon to establish an offence in an earlier trial may be admissible in subsequent proceedings notwithstanding that there was a verdict of acquittal in relation to that offence. If it be assumed in the applicant's favour that evidence of his conduct was not admissible if he had earlier been acquitted of the offence constituted by that conduct, it is necessary to examine the evidence that was led, in relation to counts 3, 6 and 9, to determine if it was evidence of conduct in relation to any offence of which the applicant had been acquitted.

Count 3

92 This was a count of unlawful carnal knowledge. The complainant gave evidence in apparent proof of this count of many acts of buggery by the applicant. The prosecution had stated in its opening address that it relied upon the first such act within the time specified in the count as the offence charged. The complainant's cross-examination revealed that these acts did not occur within the period alleged in the count. No application was made to amend the dates stated in the presentment. An acquittal by direction was entered, presumably for the reasons advanced by defence counsel, that the evidence was insufficient to establish that any such act occurred within the stated period and for the further reason that count 3 alleged an act of unlawful carnal knowledge and not buggery.

Count 6

93 The complainant gave evidence of numerous sexual offences committed against her by the applicant in support of this count. The prosecution did not identify and nominate one such act as being the offence specified in the count. Furthermore the acts to which the complainant had deposed all fell outside the time period specified in the count. At the conclusion of the prosecution case, the prosecutor sought to amend the dates specified in the count to cover an eight year period. This application was not the subject of a ruling but in acceding to the no case submission the trial judge proceeded on the basis that the dates had not been amended. There was no evidence sufficient to establish that any act occurred within the period stated in the count.

Count 9

94 This was a count of incest, the alleged act being anal intercourse. The complainant gave evidence that the act was one of vaginal intercourse on a date which fell outside the period in the count. The prosecutor again unsuccessfully applied to amend the dates in the count. There was no sufficient evidence to establish the offence alleged.

95 In my opinion the prosecution's continued reliance upon the evidence which had been led in support of these three counts did not controvert the verdicts of acquittal which had been entered. In relation to counts 3, 6 and 9 the acquittal by direction had been entered because the evidence which the complainant gave did not relate to a charged act. The complainant's testimony in relation to those counts was either of acts by the applicant which fell outside the period alleged in the count or involved an act which was not of the description alleged in the count. The trial judge rightly treated such evidence as further evidence of uncharged acts which could be used by the jury in the same limited manner as the other evidence of uncharged acts.

96 As the prosecution did not seek to rely upon evidence of the complainant as to conduct relating to any offence upon which the applicant had been acquitted and to which a plea of autrefois acquit could apply, the continued use of the evidence did not controvert the verdicts of acquittal. Ground 3 fails.

Ground 4: Cross-examination as to affirmation

[50]

102 The Evidence (Amendment) Act 1984 (Vict) introduced s.102 in its present form. In the Second Reading Speech the explanation given for the introduction of s.102 (b) was the dearth of religion-specific texts, rendering it problematic for people belonging to certain religious groups.[95]

103 Legislation permitting an affirmation has always required that it be given the "same force and effect" as the oath. The existence of satisfactory grounds upon which the witness wished to "affirm" have always been a legitimate matter for inquiry and until 1984 were a pre condition to making an affirmation.

104 In the present case, it was argued that the cross-examination by the prosecutor undermined the effect of the section and should not have been allowed. Counsel for the applicant submitted on this appeal that it was impermissible for the prosecutor to ask such questions unless there were exceptional circumstances which were not present. It was submitted that this error in the trial assumed particular importance as it was a case of "oath against oath" in circumstances where the complainant and her brother had taken the oath. It was submitted that the failure to seek a direction or take exception did not matter given the significance of the error in the context of the trial. It was further submitted that the judge should have directed the jury that the cross-examination was irrelevant and improper and that an affirmation was to be treated in the same way as the oath.

105 The questions asked by the prosecutor called upon the applicant to state the ground of his objection to taking the oath, which witnesses prior to 1984 were required to do. The prosecutor then challenged the applicant's explanation. In my view the cross-examination did not contravene the statutory provision. Although there is no longer a requirement for a witness to state grounds for their objection to taking an oath, cross-examining counsel is not precluded from asking why a witness objects to taking the oath. Such an inquiry is not in contravention of the statute. Such an inquiry does not involve any suggestion that evidence on affirmation is in some way inferior to evidence on oath. It is an inquiry as to the subjective reasons of a witness for making an affirmation.

106 Plainly, the fact that a witness has taken an oath or made an affirmation does not render the witness immune from cross-examination which suggests that the witness is not giving truthful evidence. Ever since Queen's case[96] it has been accepted that after a witness has taken the oath the witness may thereafter be asked whether the witness considers the oath to be binding upon their conscience. The witness may be asked whether they recognise the responsibility that is associated with either having taken an oath or made an affirmation. It may be suggested to the witness that the witness does not regard the taking of the oath or the making of an affirmation as binding upon their conscience.

107 The prosecutor was bound by the answers given by the witness. The trial judge gave the jury a conventional direction that the evidence in the trial was constituted by the answers given by each witness.

108 In any event it was clear from the evidence called by the defence that there were religious grounds for the course that the applicant had followed. The prosecutor made no further reference to this issue in his closing address. No exception was taken and no direction was sought. Whatever the forensic wisdom of such a line of cross-examination, there was no error of law or unfairness in the course that was followed.

Ground 5: Motive to lie

[54]

Her Honour then directed the jury to scrutinise the complainant's evidence "closely and with care". Her Honour directed the jury that they should only act upon the complainant's evidence if, after having closely and carefully scrutinised it, they were satisfied beyond reasonable doubt of its truth. The trial judge repeated this direction again before the jury retired to consider its verdict.

110 No issue had been raised during the course of the trial as to whether the complainant had a motive to lie. It was conceded on behalf of the respondent that the trial judge had given a gratuitous direction in that regard. Following this direction exception was taken and reference was made to Palmer v. R.[97] and other cases to which I need not refer. A redirection was then given in which the jury were instructed that it would be wrong to treat the absence of a motive to lie as enhancing the credibility of the complainant. The jury were directed that such an approach would wrongly reverse the onus of proof. Not surprisingly, no exception was taken to the redirection given by the trial judge as it was given in precisely the terms which defence counsel had sought. A general direction to the same effect was not regarded as erroneous in R. v. BJC.[98] On this appeal a further ground that the trial judge's redirection was inadequate was abandoned.

111 Counsel for the applicant did not press the argument that the direction constituted a miscarriage of justice but submitted that the direction given by the trial judge was a factor which this Court should consider in dealing with the ground of appeal that the jury's verdict was unsafe.

112 The trial judge had on a number of occasions during her charge emphasised that it was for the prosecution to satisfy the jury beyond reasonable doubt as to the truthfulness and reliability of the complainant. The impugned passage is to be found amongst a number of directions cautioning the jury to scrutinise the complainant's evidence with care. That direction, in conjunction with the general directions which her Honour gave with respect to the onus and standard of proof, could not in my opinion have led the jury to any impermissible form of reasoning. This ground cannot be sustained.

Ground 6: Directions on indecent assault

[57]

113 I have summarised the complainant's testimony as to the specific occasion on which the applicant had vaginal intercourse with her in her bed when she was 16 years of age. (Count 8). The complainant said the applicant made her kiss him on the lips. (Count 7). She said that at the time the kiss occurred the applicant's penis was inside her and he was thrusting up against her having sexual intercourse. It went on for about five minutes and the applicant then told her to get off and he ejaculated on his stomach. In cross-examination the complainant was asked to confirm that the specific incident to which she had testified occurred on a week day and that her brother was not at home at that time. There was no other cross-examination directed to this incident. The only challenge that was made to any of the complainant's testimony came at the very conclusion of her cross-examination when it was suggested to her that all of the allegations that she had made against her father were false. The complainant denied that that was so.

114 During the course of the complainant's evidence she testified on a number of occasions that she had objected to the applicant committing sexual acts upon her. She said that, on the numerous occasions that the applicant had anal intercourse with her when she was made to lie on the couch with the applicant, she told the applicant she did not want to do that and would cry. She said that the applicant would insist that she comply and that he would make life unbearable for her if she did not cooperate. She testified as to other specific occasions on which she objected to the applicant having sex with her. She testified that, on the many occasions that the applicant had sexual intercourse with her in the kitchen of their home, she had always told the applicant she did not want to do it. The complainant described another incident which was the subject of Count 9 in which the applicant had struck her and forced her to have sex with him.

115 The applicant gave evidence and denied any sexual abuse of his daughter. He specifically denied that he ever went to his daughter's bed or that the incident that she described had occurred.

116 This is another ground of appeal in relation to alleged misdirections which were not the subject of exception at the trial. Counsel for the applicant on this appeal submitted that the trial judge had failed to give any direction as to the meaning of consent. In the course of directing the jury as to the elements of the offence her Honour had told the jury that if the complainant had consented to the act it would not be an assault. Her Honour then related this direction to the complainant's evidence which the Crown relied upon as demonstrating that she did not consent.

117 The direction on indecent assault was also said to be deficient because no reference was made to the mens rea required for indecent assault. It was not disputed that the complainant had given evidence of her lack of consent but it was said that, having regard to her testimony that she had submitted to sexual abuse over a long period of time, it was necessary for the jury to be instructed that they must be satisfied that the applicant knew that the complainant was not consenting or might not be consenting to the act of kissing. It was argued that as this act was alleged to have occurred during the act of intercourse the jury may not have been satisfied of lack of consent or that the applicant had the necessary mens rea.

118 A trial judge is obliged to give a jury an explanation of only so much of the law as is necessary to enable the resolution of the issues in the case. It is timely to again refer to Sir Leo Cussen's "great guiding rule" (which was referred to in Alford v. Magee)[99] that:

[59]

119 Despite the regular reaffirmation of this principle[100] it is frequently overlooked when juries are directed as to the law. Though a plea of not guilty puts in issue all of the elements of the offence charged, that is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element.[101] In R. v. Zilm,[102] Eames, J.A., referring to R. v. Chai,[103] observed "that it is not the function of the judge to expound the law as to principles which the jurors do not need to know in order to resolve the issues that arise for decision in the case."

120 Though the course taken by the defence at the trial will contribute substantially to the form and content of the charge, the course taken by the defence is not determinative of the extent of the directions as to law and fact which the trial judge would be bound to give a jury. A direction will only be adequate if it addresses the law and the possible use of relevant facts upon which the jury, on the evidence open to them, could base a verdict.[104] Thus the extent of the necessary directions is to be determined by consideration of what findings may be open to the jury on all of the evidence which has been placed before them. This obligation arises because, in order for the prosecution to prove every element of the offence beyond reasonable doubt, it must also prove that any defence open upon the evidence should be rejected by the jury.[105]

121 The only evidence that was before the jury was evidence that the complainant had not consented to the act constituting the indecent assault, by conveying her objection to the applicant before it occurred. The applicant's defence was a bare denial of both the act of intercourse and kissing. A similar question arose in R. v. Aden & Toulle[106] whether the evidence in the trial required a direction as to the element of consent and mens rea. In that case the applicants had been convicted of rape. The applicants' defence was that the act of intercourse constituting the offence had not occurred. No case of consent or absence of mens rea had been raised by either applicant. The trial judge in his directions to the jury had informed them that the absence of consent and the existence of mens rea were not issues in respect of the acts charged. On appeal complaint was made that the jury had not been directed that the elements of the offence included the absence of consent by the complainant and a belief by each applicant that the complainant was not consenting or might not be consenting. As in the present case, defence counsel did not ask the judge to direct the jury that those matters were live issues and like the present case, no objection was taken to the directions given to the jury. Batt J.A. with whom Phillips and Vincent, JJ.A. agreed said:

[61]

122 Those observations apply with full force to the present circumstances, and are sufficient to dispose of this ground of appeal. There was in my view no evidentiary basis which left open the issues of consent or whether the applicant had the necessary mens rea. The absence of consent was established by the complainant's testimony. No evidence to the contrary emerged during the trial. The conclusion that the applicant had the necessary mens rea was the only reasonable inference that was open, on the basis of the complainant's unchallenged evidence.[108] There was no reasonable possibility open on the evidence that the applicant believed the complainant was consenting.

123 No directions as to these elements was called for. This ground must fail.

Ground 7: The learned trial judge erred in failing to summarise the addresses of counsel in her charge.

124 Counsel for the applicant only faintly pursued this ground as a discrete error which could give rise to a miscarriage of justice. He submitted that this was one of the deficiencies in the trial judge's directions which should be considered amongst the aggregate of errors which caused the trial to miscarry.

125 In the charge, the trial judge gave a brief summary of the complainant's evidence, including her cross-examination. Her Honour succinctly summarised the defence case, in which she identified the principal grounds upon which the complainant's reliability had been challenged. Her Honour did not summarise counsel's final addresses. It was submitted on the applicant's behalf that this was a material omission because, as a result, her Honour had insufficiently related the evidence to the issues in the case or to the defence case that had been advanced.

126 The identification of the factual issues in the case will often be achieved in a charge in the course of summarising the respective cases of the parties. As this Court has observed on many occasions,[109] that would focus the jury's attention on the real issues. The failure of a trial judge to summarise the arguments of the parties, or to otherwise identify the factual issues in the case, creates a substantial risk that the accused will not have received a fair trial. The importance to a jury of a summary of the evidence which relates to the issues in the case and a summary of counsel's arguments should not be underestimated.[110] By some means or other, the attention of the jury must be drawn to the issues and the evidence upon which the defence relies.[111]

127 It was not suggested on this appeal that there was an imbalance in the manner in which her Honour had dealt with the prosecution and defence cases. The closing arguments of both parties were very brief. The closing address of defence counsel was largely directed to argument concerning Count 9 upon which the jury acquitted the applicant. Although it would have been preferable for her Honour to summarise the arguments of the parties, her Honour during the course of her charge sufficiently identified the issues and reminded the jury of the principal features of the defence case when summarising the evidence and in the course of directing the jury as to how they should approach the evidence of the complainant. In particular, her Honour, in giving the jury various warnings, reinforced the primary grounds upon which the defence sought to challenge the testimony of the complainant and her brother.

128 Although her Honour ought not to have departed from the important requirement of summarising counsel's closing addresses, the issues were uncomplicated and were made plain to the jury during the course of the charge. The way in which the defence put its case was adequately explained to the jury. Defence counsel was best placed to consider whether any omission from the charge prejudiced the applicant in any way. Counsel who appeared for the applicant in the trial was extremely experienced. The fact that no exception was taken to her Honour's charge provides a strong indication that there was no unfairness in the manner in which her Honour had directed the jury.

129 This ground has not been made out.

Ground 9: Unsafe verdicts

[70]

130 Counsel for the applicant did not seek to amplify this ground in oral argument but was content to rely upon the particulars set out within the ground. He conceded that it had been accepted at the conclusion of the prosecution case that there was a case for the applicant to answer in relation to Counts 5, 7 and 8. He contended that once the defence evidence, particularised in sub-paragraphs (i) to (l) of the ground was taken into account, it was not open to a properly instructed jury, acting reasonably, to find the applicant guilty on Counts 5, 7 and 8.

131 The long delay in the making of a complaint, the lack of particularity as to many of the offences and the inconsistency in some aspects of the complainant's account provided reasons why the applicant's accuracy or memory might be doubted. The jury were adequately reminded by her Honour that each of these matters bore upon her reliability.

132 No suggestion is made that there was any inconsistency between the applicant's acquittal by direction on Counts 1, 2, 3, 6 and 9, his acquittal by the jury on Count 4 and his conviction on the remaining counts. Those counts upon which an acquittal was entered by direction did not, for the reasons examined when dealing with Ground 3, necessarily reflect adversely upon the complainant's credibility. The applicant's acquittal on Count 4 is likely to have turned upon a conflict between the complainant's testimony that she was subjected to vaginal intercourse and the allegation in the count that it was anal intercourse.

133 In the context of what was alleged to be a 15 year period of sexual abuse involving frequent occasions of vaginal or anal intercourse, I would not regard any inconsistency or lack of particularity as to the alleged offences as necessarily affecting the truthfulness of the complainant's account.[112] It was plainly open to the jury to accept the complainant's account, though her evidence sometimes lacked particularity as to time or place or the nature of the offending. The wide variety of circumstances which may explain such deficiencies in a complainant's testimony was the subject of extensive consideration in R. v. Markuleski.[113]

134 The complainant was resolute in her claim that she had been the victim of 15 years of sexual abuse. As I have already observed, it was put to the complainant at the conclusion of her cross-examination that all of the allegations made by her were utterly false. The complainant responded in these terms:

[74]

137 In support of this ground, the applicant relied in particular upon the fact that each count was a discrete offence rather than a representative or rolled up count, that the complainant was 15 or 16 at the time of the offences, that the applicant had no prior or subsequent convictions and was otherwise of good character. It was submitted that, as the offences had occurred some 20 years earlier, there was no more than a remote likelihood of any re-offending and that specific deterrence was thus of no significance. It was submitted that the total effective sentence and the non-parole period were manifestly excessive and that the order for cumulation of two years of the second count of incest was excessive.

138 The offence of incest is a very serious one involving "breach of trust and dereliction of protective duties in the pursuit of perverted gratification or the exercise of power".[118] Its seriousness is reflected by the maximum term of imprisonment of 25 years prescribed by Parliament. The offence "merits condign punishment",[119] as general deterrence and denunciation are important sentencing considerations. The applicant has shown no remorse for his conduct. As it invariably does, such crimes result in long term detrimental consequences for the victim. The complainant has suffered from post traumatic stress disorder and bouts of depression. At the time of sentence the complainant was still taking medication and undergoing counselling. The applicant's conduct has severely affected the applicant's emotional well-being and her capacity to develop and maintain intimate relationships as an adult.

139 Although the sentences imposed in other cases can be of only limited assistance they provide some guidance as to the range of penalties that may be open.[120] In R. v. Z the Court rejected a submission that head sentences of five years' imprisonment and seven years' imprisonment on two counts of incest by a father on his step-daughter between the ages of 15 and 17 were excessive. The same submission was made, and rejected, in relation to the order for cumulation of three years of the second count on the first count, making a total effective sentence of eight years' imprisonment. In that case the sentencing judge took into account the complainant's evidence of uncharged acts to conclude that the two offences were not isolated acts. In the present case, the applicant was fortunate that her Honour did not appear to take into account the complainant's evidence of uncharged conduct. Her Honour thought such conduct irrelevant to the counts upon which the applicant was to be sentenced. It was open to the sentencing judge to consider the charged offence in the context of the uncharged acts for the purpose of excluding the possibility that the charged offence was an isolated offence which, once committed, was regretted.[121]

140 The question which this Court must ask is whether the sentence imposed is within the range of sentences properly available to the sentencing judge. The individual sentences imposed on Counts 5 and 8 and the orders for cumulation and the resulting total effective sentence cannot, in my opinion, be said to be manifestly excessive. Neither the individual sentences or the extent of the orders for cumulation on Counts 5 and 8 calls for intervention by this Court.

Ground 2

[77]

141 The indecent assault the subject of Count 7 occurred in the course of the act of incest the subject of Count 8. Counsel for the applicant submits that a term of imprisonment of 6 months for the indecent assault of kissing the complainant was excessive and was coloured by the attendant circumstances in which the kiss took place.

142 The indecent assault (which was probably one of a number of acts which could be so characterised) occurred in the course of the conduct constituting Count 8. In my view there is an element of double punishment in the sentence imposed by her Honour. The sentence is manifestly excessive.

143 I also agree with the submission of Mr Croucher, that as the indecent assault occurred at the very same time as the conduct the subject of Count 8 and was subsumed by the gravity of the latter offence, it was inappropriate to make any order for cumulation.

144 In the recent decision of R. v. Flavall[122] this Court had occasion to refer again to the approach required when making an order for cumulation. Ordinarily cumulation is ordered to reflect separate events, episodes or transactions.[123] That is not to say that an order for cumulation cannot be supported when there are two consequences of a single event.[124] When an offence arises out of substantially the same act, circumstance or series of occurrences, the presumption at common law was that concurrency should run its course.[125] Such a principle is in harmony with s. 16 of the Sentencing Act 1991, which establishes a prima facie rule that any terms of imprisonment imposed on a person ought be concurrent.[126] Total cumulation is not the normal rule at common law even between different episodes.[127]

145 The offence of rape or incest will invariably also involve one or more offences of indecent assault. It is uncommon for such lesser offences to be charged in conjunction with the more serious offence. In the present case there is no reason why the presumption of concurrency should not prevail, as the lesser offence arises out of the same facts and is closely connected to the more serious offence charged on the presentment.

146 The order for total cumulation of the sentence on Count 7 also offended the principle of totality having regard to the length of the sentences imposed on Count 5 and Count 8 and the substantial order for cumulation between those sentences.

147 The errors to which I have referred will open the sentencing discretion in relation to Count 7. I would impose a term of imprisonment of one month on Count 7. I would make no order for cumulation making a total effective sentence of six years. I would order that the applicant serve a minimum of three years and 10 months' imprisonment before being eligible for parole.

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Judgment (78 paragraphs)

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