R v W G [2010] VSCA 34

1 The applicant was presented for trial in the County Court on two presentments preferring multiple counts of sexual offences and was tried separately on each presentment. Following trial on Presentment TO1598426.4 ('the first presentment'), he was convicted of seven counts of incest (Counts 1, 2, 4, 6 8 and 10) and three counts of gross indecency (Counts 3, 5 and 9). Following trial on the Presentment Number TO1598426.2 ('the second presentment'), he was convicted of one count of indecent act with a child (Count 1) and two counts of incest (Counts 2 and 3).

2 After hearing a plea in mitigation of penalty, on 31 July 2007 the judge sentenced the applicant on the counts the subject of the first presentment: on each of Counts 1, 2 and 10 to three years' imprisonment; on each of Counts 3, 5 and 9 to one year's imprisonment; on Count 4 to six years' imprisonment; and on each of Counts 6 and 8, to seven years' imprisonment, with one year of the each of the sentences imposed on Counts 4 and 10 to be served cumulatively on each other and on the sentence imposed on Count 6. That made for a total sentence for the counts the subject of the first trial of nine years' imprisonment.

3 On the same day the judge sentenced the applicant on the counts the subject of the second presentment: on Count 1 to one year's imprisonment and, on each of Counts 2 and 3 to two years' imprisonment, and ordered that six months of the sentence imposed on Count 1 be served cumulatively on the sentence imposed on Count 3. That made for a total sentence for the counts the subject of the second presentment of two years and six months' imprisonment. His Honour further ordered that the total sentence of two years and six months' imprisonment imposed on the counts the subject of the second presentment be served cumulatively on the total sentence imposed on the counts the subject of the first presentment, thereby making a total effective sentence of 11 years and six months' imprisonment, and set a non-parole period in respect of all sentences to be served of eight years and six months.

4 The applicant now seeks leave to appeal against conviction and sentence.

5 The first presentment offences were alleged to have been committed against the applicant's step-son, DB. He was born on 19 April 1968 to a woman whom the applicant married in 1983. DB gave evidence at trial that the offences were committed when he was aged between 14 and 18 when the family was living at an address at Seaford. At that time, the applicant was conducting a furniture carrying business and the complainant occasionally helped out on the truck as a 'jockey'.

6 The complainant's evidence in support of Count 1 was of an occasion between 19 April 1983 and 31 December 1983 when the applicant compelled him to suck the applicant's penis until the applicant ejaculated in the complainant's mouth.

7 The complainant's evidence as to Counts 2, 3 and 4 was that the offences comprised in those counts occurred on the following day. He swore that the applicant called him into the applicant's bedroom, undressed him and proceeded to suck his penis. He said that the applicant also inserted his finger into the complainant's anus and moved it around, and then put vaseline on his penis and penetrated the complainant's anus.

8 The complainant said that the events alleged in Counts 5 and 6 occurred on a later occasion, after the applicant threatened that, unless the complainant submitted to sexual activities, the applicant would harm the complainant's mother. The complainant said that he was compelled to go into the applicant's bedroom and put on bikini bathers, and that the applicant then took off his own dressing gown, revealing that he was completely naked, pushed the complainant's bikini bathers to one side and penetrated the complainant's anus with his penis. As he did so, he rubbed the complainant's penis.

9 The complainant said that the events the subject of Counts 8 and 9 occurred a week later, while he was travelling with the applicant in a furniture removal van to Bairnsdale.[1] The complainant stated that the applicant drove the van into a side road and threatened the complainant that, if he did not participate in sexual activities, he would kick the complainant out of the van and make him walk home. The complainant said that he and the applicant thus entered the back of the van, where both of them undressed, and there the applicant penetrated the complainant's anus with his penis and then took hold of the complainant's penis and masturbated the complainant to ejaculation.

10 The events the subject of Count 10 were alleged to have occurred some two or three days after that. In his evidence in chief, the complainant said that he was watching television with his step-sister until she went to her room. The applicant then called him into the applicant's bedroom and demanded that he suck the applicant's penis. He said that he went down on his knees and did what was demanded. At that point, however, he heard the door open and his step-sister walk in. He turned around and he and his step sister looked at each other. The complainant said that the applicant then told the step-sister to get out, which she did, and then told the complainant that, if his step-sister asked about the incident, he was to say that he had had a splinter in his leg and that the applicant was assisting him to get it out.

11 In cross-examination on Count 10, it was put to the complainant that he had had an abscess in the groin, which he did not want his mother to know about and for which he did not wish to seek medical attention, and that the applicant was treating him for the abscess. The complainant denied that and said that he had never had an abscess in the groin or elsewhere.

12 The complete statement of grounds advanced six grounds of appeal but, at the outset of argument, counsel for the applicant sought and was granted leave to advance a seventh ground - that the judge erred in answering a jury question concerning the standard of proof by failing to instruct the jury that the notion of beyond reasonable doubt could not be equated to plausibility.

13 After hearing argument, the court concluded that the contention was sound and on that basis ordered that that the convictions on the first presentment be quashed. What follows are the reasons for that conclusion.

14 After the jury retired to consider their verdict, they returned with two questions, of which the second was as follows:

If the jury believe [the complainant's] testimony, is it plausible, is that beyond reasonable doubt.

15 Without consulting counsel, the judge immediately answered the question, thus:

The second question I can't answer; it's a matter for you. You have to determine whether [the complainant's] testimony satisfies you beyond reasonable doubt bearing in mind all of the evidence in the case including the evidence of the accused. You are really asking me to answer that question and I can't do that.

16 No exception was taken but, in the course of argument before this court, counsel for the applicant submitted that, given the terms in which the question was posed, there was at least a perceptible risk that the jury was asking whether plausibility could be equated to proof beyond reasonable doubt. In counsel's submission, it was essential for the judge to disabuse the jury of that misconception, and it was apparent that his Honour failed to do so.

17 That submission should be accepted. Taken at face, the question strongly implied that the jury did not know, and therefore wanted guidance, as to whether it was sufficient to constitute proof beyond reasonable doubt that they believed the complainant's testimony to be plausible.

18 Admittedly, the judge had earlier directed the jury as to the onus of proof as follows:

the onus that the Crown bears is to prove every element of the charge you are considering to your satisfaction beyond reasonable doubt. Those words mean precisely what they say. We are not dealing with probabilities, we are dealing with proof beyond reasonable doubt.

19 Such a direction, however, was inadequate guidance for laypersons unaccustomed to the distinction between the law's conceptions of proof on the balance of probabilities and proof beyond reasonable doubt. What was required was a more conventional explanation which, in one form or another, conveyed that the criminal standard of proof beyond reasonable doubt is the highest standard of proof known to the law; that it is to contrasted with the lower standard of proof applicable in civil proceedings, of proof on the balance of probabilities; consequently, that, in a criminal case, it is not enough to establish guilt for the Crown to show that the offence charged might have been committed, or even that it is more likely than not to have been committed; but, rather, the Crown must satisfy the jury of each element of the offence charged beyond reasonable doubt.[2]

20 The jury's question showed that the judge's direction was productive of doubt. When they sought further guidance, the judge should have given them a more conventional direction along the lines just described. It might also have been of benefit to add that the answer to their question depended upon what they meant by 'plausible'; that, if they meant no more by it than merely appearing to be truthful,[3] or even more likely than not that to be truthful, that would not be enough to convict; and that, in order to convict, they had to be satisfied of the elements of the offence charged beyond reasonable doubt. As it was, however, his Honour's riposte, that he could not answer the jury's question, created a reasonable possibility of the jury being left with the impression that it was open to convict on a standard of proof no higher than plausibility.[4]

21 This court having so concluded, counsel for the respondent properly conceded that there could be no question of applying the proviso. Proof beyond reasonable doubt is a fundamental requirement of fair trial according to law. For the same reason, there was nothing to be gained by considering the remaining grounds of appeal. Counsel for the respondent, after discussion, properly conceded his Honour's response was an error.

22 Finally, although it is a long time since the offences are alleged to have been committed, and there was a lengthy delay in the appeal reaching this court,[5] it was not suggested that a fair trial is no longer possible. On that basis the court ordered that a new trial be had.

23 The offences the subject of the second presentment were alleged to have been committed between 1 January 2001 and 31 March 2003: the act of gross indecency against a child under the age of 16 (BM) between 1 May 2002 and 31 March 2003, and the offences of incest against the applicant's granddaughter (LM) between 1 January 2001 and 31 March 2003.

24 BM was born on 11 May 1995 and was seven when the offence of indecent act was alleged to have been committed. At that time, the applicant was living with his daughter and BM and LM. BM gave evidence of an occasion when the applicant pulled him into the applicant's bed and then placed his hand down the front of BM's pyjama pants and rubbed BM's penis for approximately two minutes.

25 LM was born on 25 October 1993 and was between seven and nine years of age when the offences of incest against her were alleged to have been committed. The first offence was said to have occurred when the applicant was living in his own home and LM was visiting. LM gave evidence of an occasion when she was watching television with the applicant in his bedroom and at some point nodded off to sleep. When she woke, she felt the applicant's hand under her jeans penetrating her vagina with his finger. The applicant told her not to tell anyone and, if she did, that she would be in serious trouble.

26 The second offence against LM was said to have occurred when the applicant was once more staying at his daughter's home. LM gave evidence that she was taking a shower and the applicant entered the bathroom and asked her if she needed help to get dressed. She declined the invitation but the towel which she was wearing slipped and the applicant began to rub her in the crotch area and penetrated her vagina with his hand.

Ground 1 - Failure to direct in accordance with s 23(1D) of the Evidence Act 1958

27 At the time of the second trial, BM and LM were both under 18 years of age and so were children within the meaning of the Evidence Act 1958.[6]

28 At relevant times, s 23(1D) of that Act provided that, if a child is competent to give evidence the court must, before the evidence is given, explain to the child in the absence of the jury: (a) the importance of telling the truth and of not telling lies; (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should let the court know if this occurs; and (c) that he or she may be asked questions that make suggestions that are true or untrue and that he or she should agree with the statements that are true and should not feel pressured to agree with statements that he or she believes are untrue.

29 Under Ground 1, the applicant contended that the judge failed to give an adequate explanation of the kind required by s 23(1D)(a), and failed to give any explanation of the kind required by ss 23(1D)(b) and (c), and that his Honour's failures to do so were productive of a miscarriage of justice to which the proviso cannot be applied.

30 We accept that there were some shortcomings in the judge's directions for the purposes of s 23(1D), but we are not persuaded that they were productive of a miscarriage of justice to which the proviso cannot be applied.

31 Before the amendments to s 23 of the Evidence Act 1958 effected by s 25 of the Crimes (Sexual Offences) Act 2006, a child of any age was competent to give evidence if he or she understood the nature and consequences of the oath.[7]

32 With the passage of the amendments, s 23 took on a new form, as follows:

(1) Subject to this section, a child or a person with a cognitive impairment is competent and compellable to give evidence.

(1A) A child or a person with a cognitive impairment is competent to give sworn evidence only if he or she is capable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence.

(1B) Subject to subsection (1C), a child or a person with a cognitive impairment who is not competent to give sworn evidence is competent to give unsworn evidence only if he or she is capable of understanding, and of giving an answer that can be understood to, a question that is put to him or her.

(1C) If a child or a person with a cognitive impairment is not capable of understanding, and of giving an answer that can be understood to, a question that is put to him or her, that child or person is not competent to give evidence about the fact to which that question relates, but may be competent to give evidence about another fact that relates to a question which the child or person is capable of understanding and of giving to it an answer that can be understood.

(1D) If a child or a person with a cognitive impairment is competent to give evidence, the court must, before the evidence is given, explain to the child or person in the absence of the jury (if any) -

(a) the importance of telling the truth and of not telling lies; and

(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should let the court know if this occurs; and

(c) that he or she may be asked questions that make suggestions that are true or untrue and that he or she should agree with the statements that are true and should not feel pressured to agree with statements that he or she believes are untrue.

33 That new form was in part based on s 13 of the Uniform Evidence Act which, as it then appeared, provided that:

(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.

(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:

(a) the court is satisfied that the person understands the difference between the truth and a lie; and

(b) the court tells the person that it is important to tell the truth; and

(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.

(3) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit.

34 The effect of both provisions was twofold: first, to replace the common law conception of competency (of a belief in God and an accompanying acknowledgment that an oath taken in the name of God had a binding effect on the witness's conscience) with an apostatic test (of comprehension of being under an obligation to tell the truth);[8] and, secondly, to require that, before a child witness gave evidence, the court tell the witness specified things about what the process was likely to entail.

35 There was a significant difference, however, between the way in which each section was drafted. Sub-section 13(2) of the Uniform Evidence Act provided in terms that a witness was competent if the requirements of paragraphs 13(2)(a), (b) and (c) were met. That form of drafting signified that competence under s 13(2) was conditioned on compliance with the requirements of ss 13(2)(a), (b) and (c). Contrastingly, s 23(1D) of the Evidence Act 1958 was drafted in terms that, if a witness were competent by reason that he or she satisfied the requirements of s 23(1A), (1B) or (1C), the judge was required, before the witness gave evidence, to tell the witness the things specified in ss 23(1D)(a), (b) and (c). According to ordinary acceptation, that form of drafting implied that the condition of competence was compliance with s 23(1A), (1B) or (1C) and that compliance with the requirements of ss 23(1D) (a), (b) and (c) was a condition of admissibility.

36 In our view, the importance of that distinction is that, although compliance with a condition of competence is essential (in that the testimony of an incompetent witness is not evidence at all), and thus it has been held that failure to comply with the requirements of ss 13(2)(a), (b) and (c) of the Uniform Evidence Act is productive of a miscarriage of justice to which the proviso cannot be applied,[9] a condition of admissibility can ordinarily be waived[10] and, if so waived, failure to comply with the condition does not result in a miscarriage of justice or at least in a miscarriage to which the proviso cannot be applied.[11]

37 In this context, that implies that, provided a child satisfies the requirements of s 23(1A), the child is a competent witness. The admissibility of his or her testimony is then conditional on compliance with s 23(1D). But where compliance with s 23(1D) is waived, the child's testimony may stand as evidence notwithstanding the failure to comply with s 23(1D).

38 A possible argument to the contrary is that the words 'subject to this section' at the beginning of s 23(1) are to be read as making the operation of s 23(1) subject to compliance with s 23(1D). But that argument is hardly persuasive. According to the plain and ordinary meaning s 23, the words 'subject to this section' are directed only at ss 23(1A), (1B) and (1C). That may be seen in the fact that s 23(1) is concerned with competence - it provides that 'subject to this section, a child ... is competent' - and in the fact that ss 23(1A), (1B) and (1C) are in terms the only other parts of s 23 which prescribe the criteria of competence. Contrastingly, s 23(1D) provides in terms that 'if a child ... is competent' - which, in our view, can only mean competent by reason of having satisfied the requirements of s 23(1A), (1B) or (1C) - the judge is bound to direct the child in accordance with s 23(1D).

39 A further possible argument to the contrary is that, although s 23(1D) is properly to be seen as a condition of admissibility (as opposed to a condition of competence), the requirement to direct a child witness in accordance with s 23(1D) should be understood as a 'safeguard, required by the statute, to ensure that the trial is fair'[12] and, therefore, as one with which it is essential to comply.[13] If so, as with a failure to comply with s 13(2) of the Uniform Evidence Act,[14] a failure to comply with s 23(1D) of the Evidence Act 1958 would be regarded as an irregularity giving rise to a miscarriage of justice to which the proviso cannot be applied.

40 In our view, however, that argument is not persuasive either. If Parliament had sought to achieve a similar result to s 13(2) of the Uniform Evidence Act, in the sense of making compliance with s 23(1D) essential, it would surely have structured s 23(1D) in the same form as, or in a form similar to, s 13(2). Instead, it adopted a form apparently calculated to distinguish between the essential conditions of competence prescribed by s 23(1A), (1B) and (1C) and the conditions of admissibility prescribed by s 23(1D).

41 A further indication that it was not intended that compliance with s 23(1D) be essential, as it was under s 13(2) of the Uniform Evidence Act, is that the two sections require different things. The steps set out in s 13(2) (a), (b) and (c) require a judge to establish whether a witness understands the meaning of truth and that he or she will be under an obligation when giving evidence to tell the truth. Contrastingly, s 23(1D) does not say anything about the steps by which the judge is to establish that a witness understands the meaning of truth or that he or she will be under an obligation when giving evidence to tell the truth. Section 23 leaves a judge at large to establish that a witness satisfies the requirements of s 23(1A), (1B) or (1C) and, only once that has been done (and the competence of the witness has been so established) does s 23(1D) require the judge to warn the witness against being overborne or seduced by tendentious questioning.

42 Admittedly, there is something of an overlap between the procedure prescribed by ss 13(2)(b) and (c) of the Uniform Evidence Act for establishing competence and the requirement in s 23(1D)(a) for the judge to tell a witness the importance of telling the truth and not telling lies. But even they are not the same. For merely to tell a witness that it is important to tell the truth and not to tell lies will not suffice to establish that the witness comprehends the difference between telling the truth and telling lies or that he or she will be under an obligation when giving evidence to tell the truth and not tell lies. That requires a further step of the kind prescribed by s 13(2)(c). The requirement in s 23(1D)(a), for the judge simply to tell the witness of the importance of telling the truth and not telling lies, assumes that the witness's comprehension of truth and the obligation to tell it has already been established. Paragraph 123(1D)(a) therefore serves a different purpose to 13(2)(b): in effect, of providing an emphatic contextual introduction to the warnings against being overborne or seduced by tendentious questioning to which ss 23(1D)(b) and (c) are directed.

43 So to say does not mean that it is unimportant for a judge to comply with s 23(1D) (a), (b) or (c). Plainly, Parliament regarded such warnings as so important as specifically to prescribe them. A judge is, therefore, bound to comply with that prescription and it is error to fail to do so. Nevertheless, given the differences between the form and content of s 13(2) of the Uniform Evidence Act and s 23(1D) of the Evidence Act 1958, it is very difficult to suppose that every failure to comply with s 23(1D)(a), (b) or (c) was intended to result in a miscarriage of justice, still less one to which the proviso cannot be applied. It is more logical to conclude that, as with most other forms of judicial error, the consequences of failing to comply with s 23(1D) were intended to depend on the circumstances.

44 Furthermore, such authority as there is on the point tends to bear that out. In R v BIC,[15] the court rejected the idea that nothing less that a formal incantation of the importance of telling the truth and not telling lies will suffice for compliance with s 23(1D(a). With respect, we agree. That view of the section accords with authority in other states[16] that a statutory obligation to tell a witness of the importance of telling the truth and not telling lies is to 'convey the information that it is important to tell the truth' and that there is 'no warrant for adding to the meaning a bringing to bear of authority or some instructive character'.[17]

45 In BIC the court also went on to hold that the trial judge in that case had adequately conveyed the information by means of a series of questions and answers, which included these:

HER HONOUR: When you tell us what you're going to tell us today, do you think it's important to tell the truth? --- Yes.

HER HONOUR: What do you think might happen if you didn't tell the truth? --- I would get into trouble.

46 So too, in this case, it is apparent from the questions and answers which the judge asked and the witnesses gave on the voir dire to establish their competence to give evidence under s 23(1A) that they understood the nature and consequences of the oath and so understood that it was important when giving evidence to tell the truth and not to tell lies.

47 The position in relation to compliance with ss 23(1D)(b) and (c) is more complex. In BIC the court held that, on the facts of that case:

Whilst neither the judge at the special hearing nor the judge presiding at the trial adverted directly to the possibility that she might feel under pressure to answer untruthfully, the combination of circumstances that were drawn to the child's attention and the emphasis placed on the provision of truthful evidence were, in our view, sufficient to cover the position.[18]

The provision [s 23(1D)(c)] in its terms is clearly directed to a potential problem that the possibility could arise that in the course of questioning in an adversarial court process and, specifically, that the child might be apprehensive about disagreeing with an adult. External pressures are addressed through the explanations concerning the giving of truthful evidence.[19]

...

In any event, it is apparent that on those occasions on which the judge formed the view that L may have felt that she was being subjected to pressure or when the questioning was inappropriate or possibly confusing to the child, her Honour intervened.

48 On one view of those observations, it would be enough to comply with the requirements of ss 23(1D) (b) and (c) for a judge to intervene only when and if it appears that a child witness may be attempting to give answers to questions on matters of which the child does not know or has forgotten or feels pressured to agree with propositions with which the child may not agree.

49 We do not share that view of the matter, however. As we see it, the requirement in s 23(1D) (b) and (c) is to convey the information before the child gives evidence, not to intervene when and if it is apparent that the child is floundering or otherwise under pressure.[20] And BIC should not be taken to gainsay that. The ratio was that the information which was conveyed to the child witness before she gave evidence was sufficient to comply with s 23(1D)(c). The rest of it was obiter.

50 Nevertheless, as counsel for the respondent submitted, it is plain from the transcript of the complainants' evidence, particularly the robust manner in which they answered questions and rejected propositions with which they did not agree, that they did understand the importance of telling the truth and not telling lies and that they were not pressured to agree or led by tendentious questioning to give answers to questions to which they may not have known the answers. In those circumstances, we are not persuaded there is a reasonable possibility that the complainant's testimony would have been any different if the section had been complied with. Thus the proviso should be applied.

51 Counsel for the applicant argued to the contrary that, regardless of the effect of the judge's failure to comply with ss 23(1D)(b) and (c), the lack of compliance was such as to deprive the applicant of a fair trial according to law and thus the kind of defect to which the High Court in the Queen v Weiss[21] intimated the proviso cannot be applied.

52 We reject that submission. Once it is accepted, as we do, that compliance with ss 23(1D) (b) and (c) is a condition of admissibility as opposed to a condition of competence, there is no reason to conceive of every failure to comply with those provisions as necessarily fundamental. For the reasons earlier stated, we consider that, so long as it can be seen that a competent child witness has understood the importance of telling the truth and not telling lies, and has not ventured answers to questions to which he or she does not know the answer or been overborne or seduced by tendentious questioning, the proviso may be invoked.

Grounds 2 and 6 - Failure to give a proper direction on penetration

54 The argument advanced under Grounds 2 and 6 was that the judge ought more clearly to have brought to the jury's attention the part of the VATE tape where the complainant demonstrated with her hand the manner in which she said the applicant penetrated her vagina, and that his Honour's failure to do so meant that the jury's verdict should be regarded as unsafe and unsatisfactory.

55 There does not appear to be anything in that point. The judge expressly directed the jury's attention to the relevant section of the VATE tape, as follows:

Well now what was the complainant's evidence about that and I am referring now to the VATE tape that you saw on the first day of the hearing.

She said she got into bed with her grand-father' and she said 'he must have got his hand underneath while I was asleep and I woke up and I felt his hand under my jeans and I jumped up and I did not go back into bed with him'. 'So when you woke up you felt his hands under your jeans, where were his hands exactly?' 'in the crotch bit'. 'OK, was his hand on the inside part of that, that part of your body or on the outside part?' 'On the inside'. 'Ok, so what part of his hand was on the inside?' 'His fingers'. 'Ok?' 'Well, not his fingers, there the palm, near there'. 'So can you show me on your hand how that part of his body was in that part of your body?' And you remember the child in the VATE tape did that demonstration but she maintained that on that occasion his fingers entered her vagina and she said that she did not say anything about that, she was too scared_._

...

'Now you showed me before your hand doing something like, yes, can you tell me, help me understand how Pop's hand was inside that part of your body?' And then she repeated the gesture that she indicated. What part of his hand was inside, what part of your body?' And she indicated the top right palm area to the fingers, from up there upwards.[22]

56 Counsel for the applicant submitted that, given the complainant's VATE tape demonstration of the manner in which she said the applicant placed his hand on her vulva, the jury should have had a reasonable doubt as to whether the applicant ever penetrated her vagina with his finger.

57 That submission is not persuasive either. It was not suggested that the demonstration necessarily precluded acceptance of the complainant's oral testimony that there was digital penetration, and the judge specifically directed the jury as to the possibility of conflict, as follows:

And you remember the child in the VATE tape did that demonstration but she maintained that on that occasion his fingers entered her vagina and she said that she did not say anything about that , she was too scared.

58 Moving then to Ground 3, a principal aspect of the defence case advanced at trial was a contention that the complainants' father had put them up to make false allegations against the applicant because the applicant had sided with his daughter (the children's mother) during divorce proceedings with the children's father.

59 The judge gave the jury the following directions about that aspect of the defence:

But on this issue of prejudice, as [Defence counsel] has correctly emphasised in addressing argument to you that he has no onus. [Defence counsel] has proffered an explanation as to why these events have come to the court. He has argued on the basis of what the accused man told the police that these charges are the product of the malevolent mind of [MP], the father of the children.

Well now that is a matter of debate. Counsel have argued about that, that is a matter for you and that is a not a matter that has to be established by the Crown beyond reasonable doubt, that is not an issue, that is not an issue that has to be decided. The issues that have to be decided beyond reasonable doubt by you, are the ingredients of the charges of which I have directed you.

But this is an issue that has entered the case but I repeat, on this issue of prejudice, if after considering all of the evidence you are not persuaded that that is an accurate basis for these allegations. If you say no we do not believe that these children were put up to this by their father and that is a decision that as I say and it almost inevitably has to be made by you, because it has been raised. But if you say no we are not persuaded that that is why this has occurred, you then do not jump to the conclusion well, we do not think much of his explanation, therefore that is a pointer to his guilt, that would be wrong. If you are not persuaded that that explanation is one that appeals to you, put it to one side. You have got to come back to you assessment of the veracity of the evidence of the children.

60 Later, when dealing with evidence given by the children's father, in which he (like the children in their evidence) denied that he had put them up to make false allegations against the applicant, the judge also said this:

[Defence counsel] cross-examined [MP] and made an attack on his credit and suggested that these criminal convictions and I will not go over that and the other conduct which was alleged against him, you make what you will of that. But counsel are permitted to do that and not only to embarrass the witness but when there is a question of the witness's evidence which is called into question, counsel are able to say well do not believe him. But it is important to remember, counsel's questions are not evidence.

You have and I will come to the accused's account[23] shortly and [Defence counsel] was entitled to use that account of the accused to challenge the witness. What you make of it is a matter for you but the evidence that you have from the children. 'Did you make up the story?' 'No'. So that is their evidence. The evidence from [MP]. 'Did you put the children up to it?' 'No'. So that is their evidence.

There is only a theory which was proffered by the accused to the police, whether you accept that or not but there is certainly no direct evidence of the allegations that were put to [MP]. You are entitled to look at the way a witness responds to a question, that is part of your task but it is a long way short of that having been, perhaps I should not say that, no I withdraw that.

What you have is the accused man's theory that this is how it occurred but you understand what the state of the evidence is, the accused man's theory and the denials by the persons who were confronted with the allegation. It is a matter for you what you make of it.

61 Counsel for the applicant contended that his Honour's directions were deficient in failing to make clear to the jury that, if the jury thought it reasonably possible that the complainants had been put up to make their complaints, the applicant should be acquitted.

62 That contention is also rejected. The impugned directions sufficiently complied with the requirement adumbrated in R v Uhrig[24] and later approved in Palmer v The Queen[25] that, where it is suggested that a vital Crown witness has a motive to lie, it is:

appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth.[26]

63 Counsel for the applicant argued further that, whether or not the impugned directions sufficiently cautioned the jury against deciding the case on the basis of rejecting the suggested motive to lie, there were deficiencies in the direction: first, in the judge's reference to 'prejudice' as opposed to 'motive to lie'; secondly, in his Honour's instruction that 'that is a not a matter that has to be established by the Crown beyond reasonable doubt, that is not an issue, that is not an issue that has to be decided'; thirdly, in his Honour's instruction 'that is not an issue, that is not an issue that has to be decided'; fourthly, in the judge's suggestion that, before the jury could take the suggested motive to lie into account, they had to be persuaded of it in a positive sense, and thus beyond reasonable doubt; and finally in the distinction which his Honour drew between 'theory' and 'evidence'.

64 Taking those points in turn, there does not appear to be anything in the first of them, about the judge's reference to 'prejudice' rather than a 'motive to lie'. The defence case was that the children's father was prejudiced against the applicant, because the applicant had sided with his daughter during the divorce proceedings, and it was because of that prejudice that he had put the children up to make false allegations. His Honour's reference to 'prejudice', and then to 'malevolent mind', accorded with the dichotomy.

65 Arguably, there is more substance in the second point. Read alone, the direction that 'that is a not a matter that has to be established by the Crown beyond reasonable doubt, that is not an issue', could be taken to mean that the Crown did not have to negative beyond reasonable doubt the possibility that the children were making false allegations. Read as a whole, however, the clear purport of the direction is that the Crown did not have to negative the possibility that the father was prejudiced. What the Crown had to establish beyond reasonable doubt was that, whether or not the father was prejudiced towards the applicant, the children were telling the truth about the essential elements of the alleged offences.

66 With respect, the direction could have been more felicitously expressed, and it should have been. But this was a short trial, in which the issues were clear, and no exception was taken. It would be unrealistic to suppose that the judge's use of only slightly ambiguous language, in but one line among the many which comprised the direction, created a reasonable possibility of doubt.

67 The same applies to the third point. The question for decision was whether the children were making false allegations, and the judge had already instructed the jury that the burden was on the Crown to satisfy them of the truth of the children's allegations beyond reasonable doubt. The point of his Honour's later instruction that 'that is not an issue, that is not an issue that has to be decided', was apparently to elucidate that it was not necessary for the Crown to negative beyond reasonable doubt the possibility that the father was prejudiced against the applicant. There was nothing wrong with that.

68 There is nothing in the fourth point. The judge did not suggest that the applicant had a positive burden to establish the existence of a motive to lie or that the jury had to be satisfied of its existence beyond reasonable doubt. To the contrary, his Honour prefaced the impugned direction with a firm reminder that the applicant bore no onus, and his Honour completed the direction with a clear instruction that, whatever the jury made of the suggested motive to lie, in the end they had to decide the case on the basis of their assessment of the veracity of the children.

69 There is, too, nothing in the fifth point. The applicant's record of interview, once tendered, became evidence both for and against the applicant.[27] But non constat that the theory of motive to lie which he advanced in the record of interview became evidence that the children had that motive to lie. As such, the evidence went no further than that the applicant had advanced the theory, and as the judge appropriately reminded the jury, that theory stood to be compared to the evidence of the children that they were not lying. Of course, it would have been wrong for the judge to instruct the jury that they were to give less weight to one part of the record of interview than another.[28] But the judge made clear that it was up to the jury to decide what weight should be given to the applicant's theory. His Honour's instruction that it was a 'theory' as opposed to 'evidence' did no more than was necessary to equip them to make that assessment.

70 The argument advanced under Ground 4 was that the judge erred in the directions which he gave concerning the lack of timely complaint, by including the following passage:

But in considering the evidence of complaint, I am repeating myself here, you should bear in mind that it springs from the same source as the allegation. It may or may not demonstrate consistency.

71 That submission is not persuasive. Possibly, if the passage were taken in isolation, it could be understood as conveying a false impression that, despite the absence of timely complaint, it was open to take later complaint as demonstrative of consistency. But as may be seen from the context set out in what follows, the clear purport of the direction was that the absence of timely complaint was something which had the capacity to be indicative of inconsistency of conduct, and so as throwing doubt on the complainant's allegations.

There has been complaint here from [defence counsel], which is a legitimate complaint, that no complaint was made at the time or shortly after any alleged incident. That may or may not have significance. It is a matter for you.

73 His Honour then proceeded to an explanation of the relevant principles, as follows:

Let me deal with the principle applicable, what is called, evidence of complaint. It is part of the law that if a recent complaint is made in a sexual case evidence of that complaint is admissible. The purpose of being admitted is to demonstrate consistency with the evidence being given about the incident or incidents by the complainant. In this case there is no evidence of any complaint that can be described as a recent complaint.

Delay in making a complaint may be used to suggest inconsistency of conduct. Delay in complaining does not necessarily indicated [sic] that the allegation is false. There may be good reason why a complainant who alleges sexual abuse delays in making a complaint. Obviously, there are cases in which the relationship of the parties or the personality or situation of the complainant, make it less likely or more likely that a complaint would have been made or would be delayed. The complainant in this case said he did not complain at the time because of the threats that he said were uttered to him. Then, ultimately, he said that he did not complain because, 'No-one would believe me'.

In this particular case it is open to you to take the delay in making a complaint into consideration. If you felt the delay in making a complaint was so long, so inexplicable, or so unexplained, you could take such a finding into account in determining whether the particular allegation you are considering was false. It is for you to say whether, in all the circumstance, the absence of a timely complaint does constitute behaviour consistent, or inconsistent, with the allegations made.

74 The effect of the direction to that point was to draw a clear and unexceptionable distinction between recent complaint on the one hand, and delay in making complaint on the other; explain that, while recent complaint could be used as evidence of consistency, in this case there was no recent complaint; and explain that the absence of timely complaint was capable of evidencing inconsistency, and that it was open to the jury to take that into account in assessing whether the complainant's evidence was false.

75 The judge then added the impugned passage which, admittedly, was incongruous. It was as if the judge mistakenly omitted to excise a passage which would be relevant in a case where there was recent complaint. But given the preceding sections of the direction, it is hardly likely that the jury would have taken the added impugned passage to mean that that an absence of timely complaint was capable of demonstrating consistency.

76 Perhaps one cannot exclude that as a theoretical possibility. But as McHugh and Gummow JJ said in Dhanoha v The Queen,[29] in order to succeed in an appeal on the basis of error an applicant must establish that it is reasonably possible that the error 'may have affected the verdict'. In this case, the distinction between timely complaint and an absence of timely complaint and its consequences had been far too clearly drawn in what had gone before to be overturned by the judge's subsequent enigmatic reference to 'the evidence of making the complaint'.

77 The applicant has not shown it to be reasonably possible that the error complained about may have affected the verdict.[30]

78 Under Ground 5 it was contended that if none of the grounds of appeal was in itself sufficient reason to allow the appeal, the combined effect of the errors alleged was a miscarriage of justice.

79 We do not accept that contention. The only error of any significance as we perceive it was the judge's failure to comply with s 23(1D)(b) and (c), and for the reasons earlier expressed, we think it one to which the proviso should be applied.

Conclusion and orders concerning the second trial

80 For the reasons stated, the application for leave to appeal against the convictions entered in second trial should be refused.

81 Given that the convictions entered in the first trial have been set aside, the sentencing discretion in relation to the offences the subject of the second presentment is re-opened. We shall hear counsel as to the way in which the applicant should be re-sentenced.

[1] There was no evidence as to Count 7, of which the jury were directed to acquit the applicant.

[2] R v Cavkic, Athanasi and Clarke (No 2) [2009] VSCA 43, [61]; cf. R v MJA [2007] VSCA 105, [20]-[22]; and, for an appropriate form of the conventional direction, see the Judicial College of Victoria, Victorian Criminal Charge Book, [1.7.2].

[3] See Oxford English Dictionary - 'plausible', meaning 3.a.

[4] See and compare R v Cavkic [2005] VSCA 182; (2005) 12 VR 136, 143 [228] (Vincent JA).

[5] In large part, the fault of the applicant: the application for leave to appeal was deemed dismissed because of the applicant's failure to file a full statement of grounds by 7 March 2008, and it was not until April 2009 that Vincent JA allowed an application for reinstatement.

[6] Evidence Act 1958, s 3(1).

[7] As at common law: R v Brasier [1730] EngR 38; (1779) 1 Leach 199, 168 ER 202 (KB); J D Heydon, Cross on Evidence, [13050].

[8] R v BBR [2009] QCA 178, [23] (Chesterman JA).

[9] R v Brooks (1998) 44 NSWLR 121, 125; R v BBR [2009] QCA 178, [25].

[10] R v Clark [2005] VSCA 294; (2005) 13 VR 75, 80 [19] - [27] (Maxwell P) and 82 [54] (Charles JA); R v Dunrobin [2008] QCA 116, [64] (Muir JA).

[11] Weinberg, The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases [1978] MelbULawRw 5; (1978) 11 MULR 408, 424-426; Heydon, Cross on Evidence, Australian Ed, [1675].

[12] R v BBR [2009] QCA 178, [38] (Chesterman JA).

[13] R v Brooks (1998) 44 NSWLR 121, 125; R v BBR [2009] QCA 178, [25].

[14] R v Brooks, ibid; Lau v R (1991) 58 A Crim R 390, 395; R v Starrett (2002) SASR 115, 120-121; R v Cooper [2007] ACTSC 74; 175 A Crim R 94, 108 [53]-[63]; Odgers, The Uniform Evidence Act 8th Ed, [1.2.160].

[15] [2009] VSCA 155.

[16] Concerning the comparable requirements in s 13(2) of the Uniform Evidence Act.

[17] R v Brooks (1998) 44 NSWLR 121, 126.

[18] R v BIC [2009] VSCA 155, [24].

[20] Although, of course, a judge might also do the latter in the exercise of discretion.

[21] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 317 [45]; R v BBR [2009] QCA 178, [57].

[24] Unreported, NSW Court of Criminal Appeal, Hunt CJ at CL, Newman and Ireland JJ, 24 October 1996.

[25] [1998] HCA 2; (1998) 193 CLR 1, 9-10[9]-[10] (Brennan CJ and Gaudron and Gummow JJ).

[26] See also R v SAB [2008] VSCA 150; (2008) 20 VR 55, 64 [31].

[27] Jack v Smail [1905] HCA 25; (1905) 2 CLR 684, 695; R v Lovett [1972] VicRp 46; [1972] VR 413, 418; R v Wogandt (1988) 33 A Crim R 31, 39-40; R v Harrington [1998] 3 VR 531, 540; R v Hartwick, Hartwick and Clayton [2005] VSCA 264; (2005) 14 VR 125, 152 [61]; R v Berry [2007] VSCA 202; (2007) 17 VR 153, 178 [79].

[28] Mule v R [2005] HCA 49; (2005) 221 ALR 85, 94 [24]; R v Berry [2007] VSCA 202; (2007) 17 VR 153, 179 [87]-[88].

[29] [2003] HCA 40; (2003) 217 CLR 1, 18 [60].

[30] Citing Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 332.