R v Van Doorn [2004] VSCA 65

5. On 10 December 2001 the trial judge, after entertaining a plea in mitigation on behalf of the applicant, sentenced him to nine months' imprisonment on each of counts 5, 13 and 23 (the offences of "indecent act") and one year on each of the other counts (the "sexual penetration" counts). After making orders for cumulation, the total effective sentence imposed by his Honour was five years and nine months; he fixed a non-parole period of three years and six months. His Honour declared that for the sentences imposed after counts 3 and 4, the applicant was being sentenced as a "serious sexual offender" within the meaning of the Sentencing Act 1991. He further declared pursuant to s.18 of that Act that the applicant had already served 52 days of the sentence imposed.

8. On 21 December 2001 the applicant, through his solicitor, filed and served a notice of application for leave to appeal against his conviction. That notice disclosed only one ground of appeal, namely:

"1. That the trial judge erred in admitting into evidence the "pretext" conversations recorded on 13 and 15 March 2000."

Thereafter a great deal of time appears to have been expended by the applicant in seeking legal aid. We were informed that legal aid was refused on 18 June 2003 and, by letter dated 25 August 2003, the applicant informed the Registrar that he was intending to represent himself. On 16 September 2003, this Court called the application on for hearing. The applicant appeared in person; Mr. Silbert appeared for the Director of Public Prosecutions. On that day the applicant told us that he wished to have his application further adjourned until the first week of December, stating that he proposed to file in the meantime additional grounds of appeal and submissions in writing. He informed the Court that he was representing himself, that he wished to make submissions in writing in support of the amended grounds which he proposed to file; and that he wished the Court to deal with his application on the written material because, as he told us, he did not wish to appear upon the hearing. The procedure which the applicant has adopted is authorised by s.572 of the Crimes Act which provides, inter alia, that:

"Such rules (i.e. the rules of court) shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the Court of Appeal."

Rules 2.28.1 and 2.28.2 of the Supreme Court (Criminal Procedure) Rules 1998 provide that the applicant is entitled to be present on the hearing of an appeal or application to the Court of Appeal unless the Court of Appeal directs otherwise; and provide that, if the appellant does not attend the Court on the hearing, the application may be heard and determined in his absence. Those rules further provide that the appellant may, if he so desires, present his case and argument in writing instead of by oral argument.

15. In accordance with the leave granted to him, the applicant forwarded to the Registry a letter dated 25 September 2003, which was received by the Registry on 30 September 2003. This contained nine grounds "additional" to the one ground of appeal which had originally been filed on the applicant's behalf by his solicitor on 21 December 2001. Thereafter, on 9 October 2003, he submitted arguments in writing in support of the amended grounds of appeal which he had filed. The additional grounds filed are as follows:

1. The convictions are unsafe and unsatisfactory in the light of the evidence, his Honour's charge, and the conduct of the defence counsel.

2. The jury and their verdicts were at best perverse in the light of the evidence put before them by both the Crown and the defence witnesses.

3. His Honour erred in failing to instruct the jury properly and adequately on the law regarding the charges, and [the use which] the jury could and could not make of the exhibits and what evidence could and could not be used as corroboration.

4. His Honour erred after hearing the evidence and instructing the jury that all three complainants' evidence could be used as similar facts evidence of all three complainants [which] did not pass the criteria required in criminal law for similar fact evidence.

5. His Honour erred after hearing the Crown cross-examination of the appellant, in failing to enquire of the defence counsel whether, in the light of the defence evidence, the [concession] by the defence that the defendant was aware at the time of the alleged offences that the three complainants were all under 16 years of age. [This enquiry was required] in fairness to the defendant and to protect the integrity of the individual system.

6. His Honour erred, after being made aware, that the defendant was partially deaf and had difficulty in understanding the English language, in failing to offer head phones and an interpreter so [that] the defendant could follow the evidence at the trial. Counsel never asked.

7. His Honour erred in allowing evidence of other alleged crimes in the presentment to be put to the jury [and] in doing so, a substantial miscarriage of justice occurred and the problem of duplicity was ignored by all.

8. His Honour erred, after the defence counsel asked him to instruct the jury on "propensity" [in failing] to do so.

9. His Honour erred in failing to give the jury a "Longman warning" in the light of the evidence and the credibility of the three complainants.

27. As these grounds suggest, the applicant had given evidence on oath at his trial and had called other evidence. The thrust of the evidence given, and called, by the applicant was both denial of misconduct and of an "alibi" nature. The latter evidence suggested that, because of other things which he was doing at the time of the alleged offences, he could not have been at the places alleged by the prosecution. A notice of "alibi", as required by s.399A of the Crimes Act, was tendered at the outset of the trial; well after the time limited by the Act for filing such a notice. The prosecutor, however, was content to allow the notice to be filed.

30. In order to put the grounds of appeal into proper context it is necessary to give a broad summary of the evidence which was led by the prosecution in support of the counts which were alleged on the presentment. Relevantly that evidence came from the three complainants and the police. More particularly, it came from K.B. and J.S. In general terms, their evidence was that in January and early

February 2000 the applicant had given them money and cigarettes (of the "Long Beach" variety) in return for sexual favours. Those sexual favours, so they said, had been given at the applicant's home in Moe; at a farmhouse in Traralgon which appears to have been the property of the Yallourn Power Station; in the applicant's car in a bush location outside the City of Morwell and in a "shallow ditch" in a pine plantation not far from the old Morwell tip. According to the complainants there were some five or six separate occasions upon which these acts occurred (there appear to have been either three or four trips to the "bush location"), and that on each occasion contact was made by J.S. and/or K.B. by telephone, usually from K.B.'s home. K.B. had been introduced to the applicant by J.S. who had been a school friend of the applicant's daughter. On most of the occasions upon which the offences were alleged to have occurred, the arrangement had been for the applicant to pick up the girls in Morwell at the intersection of two streets, which was not far from K.B.'s home in one of those streets. It was only on the final two occasions that K.B. and J.S. were joined by the third complainant, C.L. It was the evidence of K.B. that the applicant had engaged her at various times in oral sex and had penetrated her vagina both by finger and tongue. J.S. gave evidence that the applicant, on various occasions, had penile/ vaginal intercourse with her. C.L. said that on one of the two occasions upon which she had gone with the other girls in the applicant's car the applicant had turned towards her from the driver's seat and rubbed a packet of cigarettes across her breasts. She had replied that she did not smoke, to which the applicant had said:

"I wasn't going to give you the packet of cigarettes."

C.L.'s evidence in respect of this matter, which was charged as count 11 on the presentment, was very vague and she no longer had an actual memory of it. On the second occasion that C.L. went in the car with the applicant, she said that he had indecently assaulted her by putting his hand up her dress; but that she had, in response, closed her legs and told him to stop; further telling him that she was "not interested". She said the applicant became angry and had verbally abused her.

36. The offending related by the three complainants came to a halt on 5 February 2000 after the incident in which the applicant was alleged to have indecently assaulted C.L. and was told to stop. On the evening of that day C.L. told her mother what had happened and the matter was then reported to the mothers of the other girls and, ultimately, to the police. The police commenced investigations and, on 10 March 2000, they attended at K.B.'s home and instructed K.B. and J.S. in the operation of a micro cassette recorder to record telephone conversations which it was agreed that the two girls would make to the applicant. On that day two telephone calls were made to the applicant's telephone number. The applicant was not home although messages were left for him on his answering machine. Further calls were made on 13 March 2000 which were answered by the applicant. The content of those conversations was recorded on the tapes provided; and thereafter those conversations were reduced to transcript form. The content of the "pretext conversations" of 13 March 2000 was highly incriminating. Inter alia, the applicant is recorded as saying such things as:

* "... so how are things going, because I've missed youse ... I hope you missed me too".

* "... so what are you doing for the rest of today". When K.B. replied "nothing", he said "So can I come and see you".

* When K.B. asked "Do you want to speak to `J.S.", the applicant said "Yes, alright", following which he said to J.S. "I missed you".

* When J.S. asked "Remember the last time we went to the bush I thought I was pregnant", to which the applicant replied "You thought you was". ....."Well who have you been rooting. Not me." To which J.S. replied "Bullshit". The applicant then said "Well I mean to say I don't come, so it couldn't be me. And what happened, you wasn't, you just thought you was." J.S. responded "Yeh I thought I was". In response to that, the applicant said "... No I wouldn't be that silly. You've got no worries about that. That's when you root young bucks, that's what happens because they can't control themselves but I make sure nothing happens, don't worry."

43. In the second "pretext conversation" J.S. rang the applicant. She told him that she and K.B. would be together on Wednesday and was wondering:

The applicant then told them that if they came over to his place on Wednesday that would be:

Later in the conversation the applicant said that he would:

"Put my car somewhere else so everybody thinks I'm not home, so nobody disturbs us."

"I'll think of something because if you want a whole carton and I'll give you a whole carton - especially if we're up here, because here I'm at peace and quiet, better than up the bush. Here I can enjoy it, you know what I mean."

"I don't know you ... you're very good at the proper root and she's very good at a head job. She's very good. But I love both of ya ... I love you both. Don't worry because you don't know how much I bloody missed youse. I was begging for youse to ring again yesterday because you rung Friday and I thought ... they'll ring Saturday or Sunday but you bloody didn't and I was waiting by the phone all day."

63. On 15 March 2000, the police went to the applicant's premises with a search warrant and then placed him under arrest. They found various items in the house including a carton of "Long Beach" cigarettes. They asked him where his car was and he said that his car was parked at his brother's place. When the car was searched they found a green sleeping bag in the back of it which contained dirt and pine needles. Thereafter they conveyed the applicant to the Morwell Police Station where they conducted a record of interview with him. In the course of the record of interview, the applicant told the police, inter alia:

* That he didn't smoke any longer; but that he had bought a carton of cigarettes that morning "for his daughter".

* That nothing had occurred of the type which K.B., J.S. or C.L. were alleging against him; and that they were lying.

* That he had never taken any of the complainants for a ride in his car; nor to his knowledge had the girls been in the car.

* He denied each and every allegation put to him based on the statements made by J.S., K.B. and C.L.

In the course of the record of interview between the police and the applicant, the applicant did not suggest that he had an alibi for the period of time over which the offences were alleged to have been committed.

71. The applicant had also denied to the police that he had ever driven his car to the bush location in Morwell identified by the complainants. In the course of their investigation, the police located, in that area, a "Ice Coffee Big M" (tendered in evidence) which, upon forensic testing, demonstrated biological material corresponding with samples obtained from both the applicant and J.S. J.S. gave evidence that she and the applicant had been drinking out of that carton on the last occasion they had driven to "the bush", and that she had thrown the carton out the window of the car.

74. At some stage during the course of the interview with the applicant, the police officers played to him the recorded telephone conversations with K.B. and J.S. of 13 March 2000 (the "pretext conversations"). The applicant identified the voices as those of K.B. and J.S., and identified the male voice as his own, Furthermore, during the cross-examination of the police officer by counsel for the applicant, the police officer confirmed that the charge records of telephone calls made by Telstra showed that between 1 January 2000 and 3 February 2000, 37 telephone calls had been made from K.B.'s home to the applicant's home telephone number. The records indicated that the first call made to the applicant's home was on 2 January 2000 at 12.06 p.m. Those telephone records were tendered.

78. As I have already indicated, the applicant gave evidence in which he set up an alibi for the period between 1 January 2000 and 5 February 2000. He was engaged in building operations, he said, in company with a man named Lazenby at a house owned by people called Whitfield. They worked from early in the morning to late in the evening in the days between 1 January 2000 and 10 January 2000; and that thereafter he and Lazenby had worked at the applicant's own house for similar hours until well into February. The Whitfields and Lazenby gave evidence in support, although the evidence varied as to the extent of hours worked. The applicant said that in that period he had only seen J.S. and K.B. once at a local cinema, and - on one occasion only - had they been in his car. He said that the girls often telephoned him and his guess was that he spoke with them five, six or seven times during the period but had received dozens of messages from them on his answering machine. The girls, he said, were always wanting cigarettes and made all sorts of promises about sexual favours in return. The applicant said that he had constantly told the girls "no time, no time". He said he did not mind receiving the telephone calls at the beginning but it started to annoy him "because it never stopped". He said that in the recorded telephone calls of 13 March 2000, the girls talked in the same way as they had in previous calls that he had received from them. In his responses to them he was never being serious and "was just talking the way they talked". Never had he committed sexual acts with any of the complainants. In respect of the meeting at the cinema he said that he had received a telephone call from them between 8.15 and 9 p.m. They told him that they were short of $6 for the cinema tickets and they also wanted some cigarettes. He said that he decided to help them out and drove to the cinema. He said about three or four boys and three or four girls came up to his car and he gave them cigarettes and money. The next time that he had seen K.B. and J.S. was on 5 February 2000 when he had picked them up at a bus stop in Morwell. He said that he was asked to drive to a school to pick up a friend. He did so but that friend would not come. Whilst at that location they purchased "an ice coffee Big M" which they shared. He stated that whilst at the school, K.B. asked if she could have a drive of the car because she was going to apply for a learner's permit in April 2000. The applicant told them that they could not do that as they would get "picked up" for driving without a permit. He said that the girls suggested a location in "the bush" and directed him up a road (that he now knew to be Merrivale Road) to a place where K.B. had her first drive of the car. He thought that he may have had the sleeping bag on the back seat of the car, but that he'd put it in the boot to make room. Thereafter they returned to the school where they picked up the friend of the girls. This friend (presumably C.L.), the applicant said, was drunk and soaking wet, and they went to McDonalds or a Red Rooster shop. When there the girls wound down the car windows and yelled out to boys. This had made him angry because "you know young girls in the car with an older fellow, and nowadays people think straight away that something is bad". He then threw them out of the car and drove home. He conceded, in cross-examination, that his evidence at trial - particularly that which related to the girls having been in the car and being driven to the "bush location" - was at odds with what he had told police in the record of interview. In that respect, he conceded, his interview contained "lies", but that they had been told because he feared that, if he told the truth, the police would believe all that the girls had said about "sexual encounters", which were also "lies".

81. The applicant again explained the "pretext telephone calls" of 13 March as being an opportunity to tell the girls that he did not want to have any more telephone calls from them. He said that he arranged to meet them again for the purposes of "telling them off" and to tell them to stop making the calls. He "went along with" their conversations so as to ensure that he could meet them for the purposes of telling them that he wanted to hear no more from them; and that it was also for this purpose that he agreed to buy the carton of cigarettes for them.

84. It is tolerably clear from the jury's verdicts that they had rejected the evidence of the applicant and also that of his "alibi witnesses", or had at least taken the view that the alibi was not inconsistent with a conclusion that the offences, which they found proven, had occurred. Some of the offences charged were clearly not supported by the evidence and were, thus, the subject of directions for acquittal. It seems likely that the jury acquitted on counts 1 and 2 because the girls were adamant that these events had occurred on New Year's Day, whereas the telephone records suggested that the earliest calls made by the girls to the applicant's house were on 2 January 2000. Furthermore, those offences were said to have been committed against K.B. at the applicant's house in Moe and, as it seems to me, it was open to the jury to entertain a doubt - on the evidence - that K.B. had ever been in that house on the day alleged. Furthermore, there was no satisfactory evidence which supported ground 11, which was the first of the counts alleging the commission of an offence against C.L.

Applications made to the Judge on behalf of the applicant at the outset of the trial

88. At the outset of the trial counsel for the applicant applied to sever the presentment so that the counts alleging offences against each complainant would be tried individually and separately from the counts alleging offences against each of the other complainants.

91. Counsel for the applicant also applied, at the outset of the trial, to exclude what were described as the "pretext telephone conversations" of 13 March 2000. Counsel contended that those telephone conversations should be excluded in the exercise of the judge's discretion because J.S. and K.B. were "doing the bidding of the police" and "subverting the right to silence" of the applicant. The learned judge declined to exclude the evidence of those telephone calls; and also declined to "sever" the counts on the presentment. No ground of appeal asserts that the latter ruling was incorrect.

95. Against the background of the events which occurred at the trial, it is appropriate to consider the grounds of application relied upon by the applicant. Unsurprisingly, some of those grounds are expressed in terms which do not accurately or expressly incorporate the point which the applicant is seeking to make. So much can be gleaned from the lengthy written submissions in which arguments are advanced in respect of each of the grounds. It is, I think, appropriate to address the grounds in the following order:

Original Ground - Error in Admitting "Pretext Telephone Calls"

107. It is desirable to deal with this ground first because, if there is substance in it, there would have to be a new trial. The content of the telephone calls made to the applicant on 15 March 2001 was, as I have already indicated, strong evidence in support of the allegations made by the complainants. Accordingly, if such evidence was improperly admitted, it could scarcely be contended (and, indeed, it was not) that a miscarriage had not occurred.

110. The applicant has submitted that the recorded telephone calls should have been excluded, in the exercise of the judge's discretion, on the grounds that the circumstances in which the material was obtained was unfair to the applicant and contrary to public policy. It is contended by the applicant that K.B. and J.S. were being "used" by the police to "trick" him into making incriminating statements by use of leading and manipulative questions. The technique, it was contended, was the equivalent of using the two girls as "police agents" for the purpose of subverting the applicant's free choice to speak or remain silent. The mere fact that it was necessary to make two `phone calls, so it was said, was itself an indication that the police were using the girls to induce the applicant into making statements against his interest; and were not interested in simply facilitating conversation with him.

113. In my view, there is nothing in this ground. The judge was correct in the exercise of his discretion to admit these telephone calls. The calls were part of a legitimate investigative technique employed by the police in seeking to determine whether serious indictable offences had been committed. The use of such "pretext conversations" between alleged victims and suspected offenders are, and have long been, a common investigative tool used by police in investigating alleged sexual offences committed against young people. These conversations were recorded before the applicant was taken into custody or questioned by police. There is, and was, no suggestion that they were recorded unlawfully[1]; nor were they recorded in circumstances in which it could be said that the applicant's "rights to silence" were circumvented[2]. The trial judge was entitled to conclude that this was simply one more occasion where K.B. and J.S. were engaging in a conversation with the applicant to "set up" an arrangement where they could obtain from him money and/or cigarettes in exchange for sexual favours. It was the girls' claim that there had been many similar previous exchanges. This was not a case where the applicant was in police custody and/or had made it clear to authorities that he was exercising or proposing to exercise his right to silence[3]. There was no infringement here of the rights conferred by s.454A Crimes Act 1958 (Vic.). The events were simply a necessary part of the police investigations to establish whether the stories being told by the girls could be confirmed. The making of such calls, and the recording of them, in those circumstances was neither unfair, nor unlawful. As Brennan, C.J. said in Pavic (supra at 185-6):

"Clancy [the person recruited by police] was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity `to invent plausible falsehoods'." (footnotes omitted.)

119. These grounds assert that the convictions recorded are "unsafe and unsatisfactory" (ground 1); and that the verdicts were perverse (ground 2). There is no basis, as I see it, for suggesting that the convictions were "unsafe" in the sense that there was no evidence upon which a reasonable jury, properly instructed, could convict[4]; or were "perverse" in the sense that the verdicts were inconsistent. Indeed, a perusal of the transcript reveals that this jury was particularly careful in its task; to the point of requesting to have transcript re-read to them on three occasions during their retirement; and of recording verdicts of acquittal in respect of counts 1, 2 and 11 where there was evident reason for entertaining a doubt. However, reference to the applicant's written submissions reveal that his contention is that the verdicts are unsafe because of errors in the judge's instructions and the lack of weight and consistency in the evidence of the complainants; and are "perverse" because they are inconsistent and reveal an unreasonable failure to accord appropriate weight to the "alibi evidence".

122. There was, indeed, ample evidence in this case upon which the jury's verdicts were properly founded. The primary evidence was, of course, that of the complainants K.B., J.S. and C.L. But, contrary to the submissions of the applicant, there was much independent evidence to support it. The applicant submits that this was a case of "oath against oath" without corroborating evidence or evidence of "recent complaint". In truth, there was - as I have said - a substantial body of evidence to support the evidence of the complainants. In the light of the way in which the issues developed in the trial (the applicant said that the only time he had been with K.B. and J.S. in his car was on 5 February 2000), the evidence of each of the complainants gave support to the evidence of the others. Furthermore, the recorded telephone conversations also gave considerable support to the evidence of the complainants, as did the forensic evidence in relation to the drink container found on the "bush track", and the admitted "lies" which the applicant had told the police during his record of interview. As a matter of law, there was no requirement that the evidence of the complainants should be corroborated; but the judge instructed the jury on the basis that they should, none the less, look for corroboration. I can see no error in the manner in which such instructions were given; nor - after re-directions - did either counsel who appeared at the trial. The applicant submits that, because he ultimately had given evidence that he had had two of the complainants in his car in the "bush location" where the drink container had been found, that "put paid" to any evidentiary value which might otherwise have attached to the existence of that container. However, that submission pays no regard to the fact that the applicant's evidence was itself in issue, particularly in the light of his previous statements to the contrary of the evidence which he ultimately gave.

125. In support of his submissions made in respect of these grounds, the applicant placed much store in what he called the "absence of recent complaint". It is true that neither K.B. nor J.S. made any complaint to anyone about the activities of the applicant, until those activities were exposed by C.L. to her mother on 5 February 2000. Even then, for a time, the two girls insisted to their parents that they had "done nothing wrong". This was, of course, a matter which was relied upon by the applicant's counsel at trial as going to the credit of both J.S. and K.B. However, it is not a matter which, in the long run, must render the verdicts unsafe or unsatisfactory, as the applicant's submissions suggest. Nor, in my view, are the verdicts rendered unsafe by reason of other matters which arose during the course of the trial (and upon which the applicant's submissions rely); namely the fact that the sleeping bag taken from the applicant's car failed to test positive for biological material; and the fact that J.S. had previously made a complaint of sexual assault against her grandfather. Further, the applicant contends that the evidence of the complainants was, in certain respects, internally inconsistent and inconsistent as between themselves. This, it was contended, demonstrated an overall lack of credibility. All of these matters were canvassed exhaustively at trial, but none of them, either alone or collectively, renders the verdicts of the jury unsafe or unsatisfactory in the relevant sense.

128. It was then submitted by the applicant that the fact that the jury had acquitted on counts 1, 2 and 11 demonstrated that the verdicts on the other counts were inconsistent. This submission, however, cannot succeed because, as I have previously indicated, there were particular deficiencies in the evidence relating to these counts which warranted the jury's verdicts in respect of them. Further, the applicant contended that the jury "must have reversed the onus of proof" because they had "chosen to reject the applicant's alibi evidence". There is no basis, however, for accepting this submission. The judge gave adequate instructions to the jury as to the manner in which they should approach that evidence. As I have said, they either rejected it, or found that it was not inconsistent with the offences, upon which they convicted, having occurred.

Additional ground 3 - Failure to properly instruct the jury on the law relating to the charges, and the use to which the jury could, and could not, make of the exhibits and what evidence could be used as corroboration

136. The substance of this ground overlaps some of the arguments which have been made by the applicant in support of additional grounds 1 and 2. In his written submissions, the applicant contended that the judge failed to instruct the jury properly upon the law. In particular he submitted that it was wrong to have told the jury that they could "use the tape recordings, the "Big M" container, the sleeping bag and the carton of cigarettes found in his possession when investigated", as supportive of the evidence of the complainants. Once again, I see no error in his Honour's directions in respect of these matters. His Honour gave what appear to me to be adequate directions as to the elements of each of the offences which the jury had to consider and directed their attention to the relevant evidence which they should consider in determining whether the Crown had proved those elements. He also told the jury that they should look for corroboration and referred them to the evidence which, in his view, was capable of amounting to such. In response to an exception taken by counsel, he repeated those instructions. Those further instructions were again the subject of a request for clarification, and ultimately a direction was given which, whilst not perfect, I think satisfactorily explained the division of responsibility between judge and jury in respect of corroborative or supporting evidence. It was not contended that any of the matters which his Honour left to the jury was incapable of amounting to corroboration. In my view, each of the matters so left was capable of confirming or corroborating the evidence of the complainants having regard to the matters in issue at the trial. As I have said, the "pretext conversation" was capable of strongly supporting the complainants' evidence; and the finding of the "big M" container in the "bush location", the recovery of the carton of "Long Beach cigarettes" in the applicant's possession and the possession by the applicant of the sleeping bag were all capable of supporting the girls' evidence. Under cover of this ground, it was again submitted by the applicant that the judge had "reversed the onus of proof" in respect of the defence evidence. Insofar as this was a repetition of the argument raised under additional grounds 1 and 2, I again say that I cannot accept it. The judge told the jury that, at all times, the onus was on the Crown to prove the charges beyond reasonable doubt; and that if they considered that the evidence of the applicant and his witnesses raised a reasonable doubt that the offences had occurred at the time and place which the complainants alleged, then they should acquit. Indeed, it seems to me that those directions may well have played a part in the jury's verdicts on counts 1 and 2.

139. Under cover of this ground, it was next argued by the applicant that the judge was in error "in failing to inquire" about certain concessions which had been made in respect of the ages of the complainants. This appears to be addressed to the element in each of the offences that the victim was, at the relevant time, a person "under the age of 16 years". The judge had told the jury that this was a matter which had been conceded by counsel for the applicant; and the transcript reveals that such was the case. I will need to return to this matter hereafter, because the applicant has specifically raised it in another ground of appeal.

142. Further, under cover of this ground, the applicant submitted that his Honour had erred in instructing the jury that they could use the evidence of one complainant, if they accepted it was truthful and accurate, as "similar fact" evidence which could support the evidence of the other complainants. It is true that his Honour had instructed the jury that they could use the evidence of one complainant to support the evidence of the others, or another, if they were satisfied that the acts being deposed to by the respective complainants were so strikingly similar as to lead to the conclusion, when judged by experience and common sense, that they had - in the absence of collusion, coincidence or other cause - been committed by the same person. His Honour went on to direct the jury that, if they could not conclude that there was such "striking similarity" then they should put the evidence of the complainant being considered to one side. He further told them that, even if they were of the view that there was "striking similarity" between the acts deposed to, they would still need to consider whether there was any explanation inconsistent with guilt, such as "deliberate concoction" or innocent infection.

145. It would appear from the transcript that this direction was in accordance with the way in which counsel had left the issues to the jury in their final addresses. The direction is in a form which itself is "strikingly similar" to the form of direction contained in the "Extension Charge Book" (No.8) provided to County Court Judges. Far from producing any miscarriage, it seems to me that the directions so given were unduly favourable to the applicant in the context of this case. That no doubt is the reason why no exception was taken to them by counsel for the applicant at trial. This was a case where the evidence of the complainants, if accepted as true and reliable, was directly relevant to many of the issues that the jury had to determine. The complainants were in each other's company on the occasions when it was alleged that the various offences occurred. The three of them spoke of travelling in the car to "the bush" on at least two occasions, and K.B. and J.S. said that they went with the applicant to "the bush" on at least three occasions. K.B. and J.S. said that, on the two occasions when C.L. was in the car, they saw the applicant sexually assault C.L. K.B. gave evidence of going to the applicant's house in Moe, and of being assaulted by him there. J.S, gave evidence that she was there with K.B. and saw the applicant sexually interfering with K.B. The two of them said that, on the next occasion they were with the applicant, he took them to the Traralgon farmhouse. All of these matters were denied by the applicant, and in issue at the trial. It was not necessary for the jury to be satisfied of "striking similarity" before the evidence of the respective complainants could be used in the determination of those issues. Their evidence was "relevant", otherwise, to facts in issue within the meaning of s.398A of the Crimes Act. Indeed this was not a case where the jury was required to be satisfied of a "striking similarity" before they could use the evidence of assaults upon one of the complainants to support the evidence of assaults upon the others. This was not a case where the identity of the alleged offender was in issue; rather the issue was whether the applicant had committed the offences which each of the complainants was alleging he had[5].

148. Nevertheless, as I have said, the direction which the applicant now seeks to impugn could not conceivably have led to a miscarriage because it was more favourable to him than it should have been. However, it again points up the desirability of judges taking care to ensure that their directions are, at all times, related to the issues which have been raised in the trial before them; and to also ensure that any direction taken from the "hand book" is appropriately tailored to meet those issues. In this respect, I repeat the comments which I made in R. v. Anderson[6]. The lack of care taken to do so in this case has led to a further complaint by the applicant - namely the reference by his Honour, in the course of his directions, to "the evidence of the boy". This reference was the consequence of carelessness bred by following the "directions handbook" to the letter. It was, however, an immaterial error which could not possibly have misled the jury.

151. Again, in support of ground 3, the applicant submitted that the judge misdirected the jury by failing to give a proper "propensity direction". However that submission also fails. Exception was taken by the applicant's trial counsel following the completion of his Honour's charge to the failure by his Honour to give such a direction. His Honour then recalled the jury and gave them (at Tx. 476) what appears to me an adequate "propensity warning" that they must not reason that the applicant, because they were satisfied that he had sexually assaulted one complainant, was the kind of person likely to have committed the offences alleged by the other complainants. Again, I have the suspicion that his Honour was not entirely sure of the difference between a "propensity warning" and what he described as a "separate consideration of counts" warning. Nevertheless, it seems to me that his Honour's final instruction was sufficiently clear to make it apparent to the jury that they were not to engage in an impermissible train of propensity reasoning. I am confirmed in that view by the apparent satisfaction of defence counsel with the re-direction which was given.

154. It was further submitted by the applicant, under cover of this ground, that his Honour's directions had "reversed the onus of proof". This would appear to be a submission differing from that which was made under grounds 1 and 2, with which I have already dealt. However, there is nothing in the passages of his Honour's charge which were referred to in support of this submission which would invalidate it.

157. Finally, it was submitted in support of ground 3 that his Honour should have withdrawn from the jury the charge of "indecent act", alleged to have been committed against K.B., in count 13. However, it is apparent that this count had nothing to do with "ejaculation in the presence of K.B.", as the submission suggests, but was directed to K.B.'s evidence that the applicant had committed an indecent act "with" her by fondling her breasts. Her evidence about ejaculation in her presence was unrelated to the facts alleged in count 13; and it is clear from the lack of any exception taken by counsel that the charge in this respect was unexceptionable.

161. These grounds assert error on the part of the judge in instructing the jury that the evidence of each of the complainants could be used as "similar fact evidence" when such evidence did not pass the criteria required for similar fact evidence. Further they assert that his Honour allowed evidence of other crimes alleged in the presentment to be put to the jury and, in doing so, caused a substantial miscarriage of justice by creating a "problem of duplicity". Under cover of these grounds the applicant submitted that the complainants had lied to the police, to their parents and to the Court and that it was a criterion of "similar fact evidence" that - before it could be used as such - the evidence had to be "credible". It was put that, on analysis, the evidence of the complainants did not have "striking similarities"; that it demonstrated that they were "liars" and that - when they first made their allegations - they were "drunk" and had been ejected by the applicant from his car. Their evidence could be seen to be "a concoction". Such evidence, it was said, could not amount to "S.F.E." (which I assume means "similar fact evidence"). The error, it was submitted, was compounded by the fact that his Honour should have told the jury, but did not, that the evidence of "alibi witnesses" was also able to be used by them as "similar fact evidence", particularly in the light of his Honour's directions that - according to the alibi witnesses - the applicant was at another place. Again it was asserted that his Honour had not given a "propensity direction" as requested by defence counsel and that a "separate consideration" direction was not the same thing as a "propensity direction". It was further submitted that his Honour was in error in failing to instruct the jury on what the action was that the Crown relied to prove counts 3 and 12. He also submitted that his Honour gave two "separate actions" to support count 2, and three "separate actions" to support count 11, which demonstrated that the convictions were bad for duplicity, were perverse and unsafe.

164. I cannot accept the arguments which the applicant mounts in support of these grounds. I have already dealt with the contention that his Honour erred in leaving the complainants' evidence to the jury as "similar fact evidence", and the proposition that the complainants' evidence did not possess such characteristics as to suggest that the evidence of one of them bore "striking similarities" to the evidence of the others. These directions, as I have said, were - if anything - favourable to the applicant, and were not the subject of any exception taken to his Honour's charge. Whether the complainants were "liars", or were "credible" or otherwise, were matters for the jury and were, no doubt, the subject of submissions made to the jury by counsel. This Court has not been favoured with a transcript of addresses, but I have no doubt that if his Honour's charge had not accurately reflected the submissions of counsel, exception would have been taken. Furthermore, his Honour gave full and accurate directions to the jury as to the use which they could make of the defendant's alibi evidence. Again, I have previously addressed this ground of complaint. This evidence was not "similar fact evidence", as the applicant's submissions assert. It was evidence, as his Honour told the jury, available to be used by them as casting doubt on the reliability of the complainants' evidence. Nor do I accept the assertion, made by the applicant under cover of these grounds, that no "propensity direction or warning" was given by his Honour; a matter which I have addressed in dealing with ground 3. Furthermore, the submission that his Honour failed to instruct the jury on "what the action was that the Crown relied upon to prove counts 3 and 12", and the further submission that he gave to the jury "multiple actions" to support grounds 2 and 11, are submissions which, in my view, are without substance. The jury returned verdicts of not guilty in respect of the latter counts and did so upon directions which, as it seems to me were appropriate to bring home to them the relevant evidence which they should consider. So far as counts 3 and 12 are concerned, and assuming that the applicant, in using the word "action" means evidence, his Honour - on my reading of his charge - gave full and adequate directions as to the evidence upon which the Crown relied to prove that the applicant had penetrated the complainant K.B. with his tongue at the "Traralgon farmhouse" (count 3), and, likewise, gave adequate directions to bring the jury's mind to the evidence relied upon by the Crown to prove the penile/vaginal penetration of K.B. on one of the occasions upon which he had taken the complainants to the bush.

171. This ground, which asserts that his Honour erred, in failing to give a "propensity warning" after being requested to do so, cannot be accepted for reasons which I have already given.

175. Again, under cover of this ground, the applicant submits that the judge erred - after hearing the prosecutor's cross-examination of the applicant - in failing to make inquiries as to the appropriateness of the defence concession that the three complainants were under the age of 16. There was, however, no such error. The concessions were, no doubt, made to avoid the need to call, as extra witnesses, the mothers of the complainants to prove the dates of birth of the girls. The submissions of the applicant proceed on the basis of what he "thought" were the ages of one or more of the complainants; a matter irrelevant to the proof of the elements of the offence; and, thus, to the purpose of the concession made. In support of his submissions made in respect of this ground, the applicant has attached a "copy" of what he contends is a letter sent by him to his trial counsel dated 6 September 2003, some two years after the trial. The letter requests his former counsel to confirm the fact that before the trial:

"You asked me whether or not it was true that I let one of the complainants (K.B.) drive my car ... and that I replied `Yes' as she had told me [as did J.S.] that she had been taking driving lessons and was going for a ... test ... This statement led me to believe that both girls must be over 16 ears of age ..."

The letter also suggests that the applicant was under the misconception that the concession made by counsel was that "the defendant knew that all girls were under the age of 16 years". Although the letter called for a response, we have not been favoured with any such letter of response; although the applicant has told us, in his written submissions, that on 30 September 2003, he received a reply from Mr. Backwell in which he (the applicant) was informed that "the issue that you believed the complainants were under 16 was not agreed to ...", but that:

"His Honour told the jury that you were not married to the girls and that there was no contest that the girls were under 16 at the relevant time";

"(b)oth these matters were conceded before the Jury, based on your instructions."

In the light of this material, it is apparent that the applicant has misconceived the relevant element of the offences with which he was charged; in the sense that he believes it was "his knowledge of" the girls' ages which was relevant, as distinct from the "fact of age". There was, therefore, no error on the judge's part in failing to "query" the concessions as a result of the applicant's own evidence that he believed that one or more of the girls were "15 or 16 years of age". This ground of the application is rejected.

185. This ground asserts that the trial became unfair because his Honour was aware that the applicant was "partially deaf" and had "difficulty in understanding the English language"; and that he should have been offered headphones and an interpreter. This ground appears to me to be totally devoid of merit. The applicant gave evidence at the trial, and appears to have had little or no difficulty in answering questions put to him. His examination-in-chief, cross-examination and re-examination covers almost 100 pages of transcript. His answers are responsive to questions asked and reveal no difficulty of hearing or understanding. No request for assistance was made; nor was there any complaint of difficulty in comprehension. At the time of trial, he had been living in this country for more than 50 years, since he arrived as an 18 year old immigrant from Holland. There is no substance in the ground, and I would reject it.

189. Under cover of this ground, it is submitted that the judge was in error in failing to give a "Longman" direction[7]. The applicant contends that the judge knew from the evidence of the three complainants that they had a motive to make false allegations arising from "spite"; and that they had lied to their parents, to the police and to the court. It is contended that the failure to give a warning to the jury that it would be "dangerous to convict" on the unsupported testimony of such witnesses exposed the applicant to a substantial miscarriage of justice.

192. This was not a case in which a "Longman warning" was required. The offences were alleged to have been committed over a short period of time at the beginning of the year 2000, were investigated by the end of June 2000 and were tried in October 2001. No disadvantage accrued to the accused through lengthy delays of the type referred to in Longman. On the contrary, the accused was able to call evidence to demonstrate where he was and what he was doing during the relevant dates. There may be circumstances where the evidence of a critical witness, or witnesses, can be seen to be so unreliable that the judge, in the exercise of his duty to ensure a fair trial, will give a warning in the nature of the one referred to in Longman. That will be a decision based on the judge's observations at trial. The giving of any such warning is very much a matter for the trial judge who is familiar with the atmosphere of the trial[8]. Counsel did not ask for any such warning; and in any event it would probably have been unproductive for the applicant because it would have focussed additional attention on the corroborative aspects of the evidence. I would accordingly reject this ground.

195. The application for leave to appeal against conviction is therefore dismissed. I would add only this; that the reasons which I have given are lengthy, largely because the applicant is unrepresented and is entitled to be appropriately informed why his arguments cannot succeed. Although it would have been open to the Court to have rejected the applicant's additional grounds of appeal as being out of time, it would - in this case - have been inappropriate to do so in the light of his apparent belief that his trial had been rendered unfair because of the matters which he raised. In most cases where the applicant is unrepresented and bereft of sound legal advice, it will be appropriate for the Court to extend procedural latitude to the applicant, and endeavour to respond to the "heart" of his grievance, provided that the grievance has a tenable basis[9]. However, that does not mean that the appellate court needs to dwell at length on grounds of appeal which are, on their face, untenable or clearly without merit[10].

201. I agree that this application for leave to appeal against conviction should be dismissed. I do so for the reasons advanced by Winneke, P.

206. A reading of the transcript of the charge delivered to the jury by the judge in this case suggests that the way in which it was structured and presented was at times somewhat confusing. However, the written word does not always adequately convey the extent to which effective communication between judge and jury has been achieved and in this case, save with respect to the issue of corroboration, no exception was taken to the charge by defence counsel on the basis that it was unclear. Grounds 1 and 3 do complain as to the adequacy of the directions but the written submissions of the applicant demonstrate that, save for matters discussed below and in the judgment of Winneke, P., which I have read in draft, the issues raised therein concern aspects of the charge other than clarity. Given, however, that the applicant was unrepresented for the appeal and presented his argument by way of written submissions I have considered his arguments concerning all of the grounds of appeal against the backdrop of my own assessment that - although I finally concluded that it was adequate - this was not a model charge.

209. Ground 3 complains generally about the directions and specifically about the directions concerning corroboration. During the course of his charge, at an opportune time when the judge had completed his directions on law and was about to turn to the summary of the evidence, his Honour invited counsel to raise any matters which they had already identified as requiring further direction concerning the law. At that time defence counsel requested that the judge give the jury a "propensity direction". I will discuss that direction later. Concern as to the question of corroboration was not raised until the conclusion of the whole charge, and at that

time the prosecutor requested that the judge give "a clearer direction" to the jury in relation to corroboration. Defence counsel also contended that further directions were required as to corroboration and his Honour agreed to give further directions "so there's no confusion". After giving a further direction defence counsel again complained about its content and his Honour further directed the jury. No further complaint was then made about the corroboration direction. For the reasons given by Winneke, P., I agree that the directions as to corroboration were ultimately adequate and that the complaint in ground 3 concerning that issue has not been made out.

213. Ground 8 complains that the judge failed to give a propensity direction, at all, after being requested to do so, but in his written submissions concerning ground 3 the applicant again makes complaint concerning the issue of propensity, contending that the judge failed to explain propensity to the jury. I turn to those complaints.

216. As I have said, defence counsel sought a propensity direction during the course of the charge and his Honour then agreed to give one. The redirection actually given at that time, however, was a separate consideration direction, not a propensity direction. It is to be noted, however, that when counsel first asked the judge for a "propensity" direction he described it in terms that "if they find Mr Van Doorn has committed one particular offence, he's not the type of person . . ." The sentence finished at that point. His Honour then read to counsel (in the absence of the jury) the terms of the direction he had already given on similar facts, and when he completed that reading counsel said that the direction he had in mind was that the jury should be told that they "ought not reason that because they find him guilty of one, he is therefore guilty of the other". A direction in those terms is not a propensity direction but a separate consideration direction, and his Honour seems to have been confused as to what was being sought.

219. At the conclusion of the charge defence counsel again requested that his Honour give a propensity direction, and said it needed to be in terms discussed by Callaway, J.A. in R. v. Best[11]. Counsel said that "Your Honour needs to warn the jury against reasoning that if the accused committed a sexual assault on one of the complainants, he was the kind of person who was likely to have assaulted the others and of course that type of reasoning or system of reasoning is impermissible". His Honour agreed that he would give a warning in such terms and did so, that being almost the last message the jury received in the charge[12]. There was no further complaint by counsel as to the terms of the direction and I agree with Winneke, P. that the terms of the direction then given were adequate in the circumstances of this case.

222. The written submissions of the applicant under ground 3 also complain, generally, that the judge did not properly instruct the jury as to the law and that the charge was unbalanced against the accused. One specific complaint made in the applicant's submissions is that, he says, the judge told the jury that they could use the "documents and things" given to them when deciding their verdicts. A reading of the transcript shows, however, that all his Honour was there doing was explaining to the jury that the evidence before them was not just the oral evidence of witnesses, but included any items that were tendered in evidence.

225. The terms of ground 3 might support a complaint of lack of clarity, in addition to the other matters raised in the written submissions and dealt with by Winneke, P. in his judgment, notwithstanding the fact that that issue was not expressly raised in the written submissions. As I have discussed, above, defence counsel was alert to take exception to the charge, but save for the matters discussed did not otherwise complain about its terms. That suggests to me that quite apart from there being no validity in the complaints made as to substance of the directions on fact and law given by the judge, any apparent inelegance in its delivery did not reflect that there had been a failure to direct the jury in sufficiently clear terms. On two occasions the jury asked for evidence to be read to them of particular witnesses, but otherwise did not indicate that they were troubled as to any of the directions of law that had been given to them.

228. For the reasons he has given, I agree with the learned President that none of the grounds of appeal have been made out and the complaints made by the applicant in his written submissions have not been sustained. The application for leave to appeal against conviction should be dismissed.

[1] cf. R. v. Juric [2002] 4 V.R. 411 at 446-8.

[2] cf. Pavic v. R. [1998] HCA 1; (1998) 192 C.L.R. 159.

[3] cf. R. v. Pfennig (No.1) (1992) 57 S.A.S.R. 507; R. v. Roba [2000] VSC 96; (2000) 110 A.Crim.R. 245.

[4] cf. M. v. The Queen [1994] HCA 63; (1984) 181 C.L.R. 487.

[5] cf. Director of Public Prosecutions v. P. [1991] 2 A.C. 447, at 462 per Lord Mackay of Clothfern, L.C.; R. v. Tektonopoulas [1999] VSCA 93; [1999] 2 V.R. 412 at 418; R. v.Papamitrou [2004] VSCA 12.

[6] [1996] VICSC 17; [1996] 2 V.R. 663 at 666.

[7] Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79.

[8] cf. Longman, supra, at 108-9 per McHugh, J.; R. v. Olivar [2004] VSCA 41 at [7].

[9] cf. R. v. Doherty [2003] VSCA 158; [2003] 6 V.R. 393 at 406.

[10] Jones v. R. [1989] HCA 16; (1989) 166 C.L.R. 409 at 411; Sinanovic v. R. (1998) 75 A.L.J.R. 1050 at 1050, para [1].

[11] (1998) 4 V.R. 603.

[12] After delivering these redirections further exception was taken as to another matter and the judge once again, redirected the jury, very briefly, before they finally retired to consider their verdicts.