R v Werry [2009] VSCA 94

2 I would make the following additional observation. The decision in R v Sadler[1] does not stand for the broad proposition that uncharged acts should be proved beyond reasonable doubt. It is only authority for the proposition that where the offences charged are of a sexual character and the prosecution seeks to rely on uncharged sexual acts involving the same complainant, those uncharged acts should be proved beyond reasonable doubt unless the trial judge considers there is no real risk of the jury using the evidence to support a conclusion that the accused had a sexual interest in the complainant. Sadler does not otherwise impinge upon existing principles concerning the standard of proof to be applied in relation to circumstantial evidence or alter the approach required to propensity evidence or to evidence which the judge perceives may be used by the jury as an important step in reasoning towards guilt.

3 On 17 November 2007, at the County Court in Melbourne, a jury found the applicant guilty of six counts of sexual penetration of a child under the age of 16 years, nine counts of committing an indecent act with or in the presence of a child under the age of 16 years and one count of making or producing child pornography.

4 The applicant was sentenced to a total effective sentence of two years and ten months' imprisonment with a non-parole period of 21 months.

5 The applicant seeks leave to appeal her conviction. Upon the application coming on for hearing, counsel for the applicant sought leave, which was granted, to abandon an application for leave to appeal against sentence.

6 The victim of the offences committed by the applicant and to whom I shall refer as 'RK', was born on 13 January 1992. She gave evidence that she was aged approximately 11 or 12 years when she first met the applicant. The applicant was born on 19 September 1983 and accordingly was more than eight years older than RK. RK was a child who had left home at a young age. At all material times she was in the care of the Department of Human Services ('DHS') and in fact although she was meant to be living in supervised accommodation provided by the DHS, she spent a considerable amount of time living in 'squats'. She gave evidence that she first met the applicant when she lived in a squat in Cranbourne Road Frankston. From time to time the applicant also spent nights at the squat.

7 RK gave evidence that approximately one year after she had met the applicant she and the applicant had sex together. She described the sexual activity as kissing and the touching and licking of her vagina by the applicant. She gave evidence of similar events having occurred over the following year at the squat in Frankston and at another location in Hastings.

8 These matters were the subject of counts 1 to 5 on the presentment which alleged five acts of sexual penetration of RK alleged to have been committed by the applicant between 13 January 2004 and 4 July 2005. The applicant was acquitted by the jury of counts 1 to 4 and by direction of the trial judge was acquitted of count 5. The counts of which she was convicted all relate to events which took place on 5 July 2004.

9 RK went to visit the applicant at a flat in Frankston which the applicant shared with her boyfriend and his mother. An argument broke out between the applicant and her next door neighbour and her boyfriend, following which the applicant telephoned one Jason Ryan and asked to be collected. RK had not met Ryan previously. The applicant told her that they were going to go to a party. Ryan, in company with another male, arrived in a motor car and took the applicant and RK to his house. There RK was supplied with alcohol and amphetamines and she became intoxicated. The applicant raised with RK the possibility of herself, Ryan and RK all having sex together. The applicant and RK had a shower together. The applicant dressed in what RK described as her 'stripping clothes' and RK dressed in a see through lace dress. The applicant and Ryan then set up a video camera. Two kitchen chairs were placed in front of the camera and RK was positioned on those chairs so that she was directly in front of the camera which was then turned on by Ryan. The video later came into the possession of police and was played to the jury. The duration of the video recording was more than just one hour. It depicted almost continuous sexual activity on the part of the applicant, RK and Ryan. There is no need here, to repeat in detail what the videotape revealed, other than to say that it is clear that each of the seven counts of sexual penetration of RK, and each of the eight counts of committing an indecent act with or in the presence of a child, of which the applicant was convicted, were the subject of the evidence revealed by the videotape.

10 The Crown case as to count 21, the making or producing child pornography, was that the applicant had knowingly assisted Jason Ryan in making the video by placing the kitchen chairs in front of the camera and performing the sexual acts with Ryan and RK with the knowledge that Ryan was filming the acts.

12 As stated above, the videotape later came into the possession of police who, on 12 October 2005, interviewed both Ryan and the applicant. Ryan later pleaded guilty to seven counts of sexual penetration and three counts of committing an indecent act with or in the presence of a child under the age of 16 years. He also pleaded guilty to one count of production of child pornography. On 29 August 2007 he made a further statement to police and upon his plea hearing he undertook to give evidence upon the trial of the applicant. On 6 September 2007 he was sentenced to a total effective sentence of 27 months' imprisonment with a non-parole period of 13 months being fixed.

13 On 18 September 2007 the trial of the applicant before a jury commenced. The jury was discharged without verdict on 21 September 2007 due to RK becoming ill. A further trial commenced before a jury on 12 November 2007. The jury returned their verdict on 16 November 2007.

14 Ground 1 Her Honour erred in not appropriately directing the jury in relation to the age of the complainant.

Ground 2 The learned trial judge erred in failing to direct the jury as to the requirement that the belief of the complainant's age need only be based on the balance of probabilities, as such, there arose a real possibility that the applicant was deprived of the opportunity of acquittal.

Ground 3 The learned trial judge erred in failing to adequately direct the jury on the standard of proof required in relation to uncharged acts used for the purpose of establishing a connection between sexual acts.

Ground 4 The trial judge erred by not giving adequate directions to the jury in relation to uncharged acts where the uncharged acts were led for the purpose of establishing sexual interest.

Ground 5 An aggregate of errors or defects caused the trial to miscarry.

15 It is convenient to deal jointly with grounds 1 and 2, they having been argued together by counsel for the applicant. They both raise the complaint that the trial judge failed to direct the jury adequately as to the issue of whether or not the applicant had a reasonable belief as to whether or not RK was aged 16 years or more.

16 The evidence before the jury was that RK was born on 13 January 1992. RK's evidence was that she was aged 11 or 12 years when she first met the applicant. In the course of cross-examination of RK, the following exchange took place between counsel for the applicant and RK:

Q: I suggest that, back at Jason's, that you told him you were 16 years' old.

A: I told him I was 17.

Q: Ok.

A: Because Aleisha said to tell him that.

Q: I suggest that she didn't tell you to say that, that, in fact, you simply told Jason that you were 16.

A: No.

Q: And that was ...

A: That's not right.

Q: ... that was said in the presence of Aleisha.

A: That's not right.

Q: You would agree though that on that night you had had some speed and some alcohol.

A: Yeah.

Q: So you wouldn't have a recollection of everything that you'd said on that night.

A: I know what I did say.

Q: But you wouldn't be able to remember everything would you?

A: No. I know I told him that I was 17 though because Aleisha said "don't tell him you're 13" or whatever.

It was not suggested to RK that she had never told the applicant her

age.

17 In re-examination the following evidence was given by RK:

Q: Do you recall telling [counsel for the applicant] that Aleisha told you, this is on the night of the video, not to tell Jason Ryan that you're 13.

A: Yeah.

Q: Did you ever mislead Aleisha Werry in relation to your age.

A: What do you mean?

Q: Did you ever convey to her that you were older than you were.

A: No I always told her how old I was.

No application was made to further cross-examine RK as to this

evidence.

18 Jason Ryan was called to give evidence. In the course of his evidence in chief he gave the following evidence:

Q: Prior to that night had you met [RK].

A: No.

Q: Had you seen her about at all?

A: No.

Q: Did you know anything of her prior to that night.

A: No.

Q: In relation to that night, did you have any discussions with anyone regarding her age, that is [RK'] age?

A: It was mentioned before the show that she was 16.

Q: Who mentioned that do you recall?

A: Aleisha.

Q: What view did you form as to her age?

A: I just believed it at the time.

Q: In what state were you at that stage?

A: I had been drinking and speeding pretty much all day which I did constantly at the time.

Q: Did you subsequently find out her age?

A: The next day.

Q: How did you find that out?

A: Freaked out.

Q: I may be not speaking up enough, I asked you how did you find out?

A: [RK] told me.

Q: You say that you found out from her that she was 13 after the video had taken place.

A: Shortly after, yeah, after we watched the video and then I found out.

Q: In relation to, prior to your knowledge of that fact, prior to her telling you that she was 13, there was nothing about her presentation to you that suggested that she was 13.

A: At the time I didn't take too much concern with it.

Q: Nothing about her behaviour, for example, suggested to you that she was ...

A: As I stated, I didn't take any notice of it.

Q: You must have been in her presence for a considerable amount of time?

A: Yeah.

Q: You said that you were performing sex acts.

A: Yeah.

Q: You were in close proximity to her.

A: Yeah.

Q: What I suggest to you is that nothing at that time suggested to you that she was 13 years of age.

A: No, I believed at the time that she was 16.

20 Later it was put to Ryan in cross-examination that on the first trial he had said 'I remember Aleisha turning around and saying something like "Not bad for 16 eh?"'. Ryan agreed that he had said that in the earlier trial and that it was true. He said that the applicant had said it in the presence of RK.

21 The recording of an interview of the applicant by police on 12 October 2005 was exhibited before the jury. In that interview the applicant stated that she had 'recently' been told by RK that she was 13 years of age. She said that she 'just assumed she was about 15, 16'. She said that she had never met RK prior to 4 July 2004, although she said she had seen her in the street. She asserted that Jason Ryan came to her flat in company with RK. A police officer put to the applicant that Ryan had told them that she, the applicant, had told him that RK was 17. The following exchange took place:

Q: Did you, at any stage, speak to Jason about how old [RK] was?

A: No.

Q: He tells me that you told him she was 17.

No: I never - I've never speculated because she was already with him so, I never speculated the age at all. I just assumed, like, how old she was myself, but he never asked me her age.

Q: I suggest to you Aleisha that she doesn't look 16.

A: Well, she sort of did, like, she was pretty dolled up and when she dresses up and that she can look quite older and ...

Q: You knew her before that night?

A: No.

Q: This is the first time you've met her.

A: Yeah. I had seen her, like, in the street and stuff, but not talked to her ...

Q: Mmm.

A: Recently like before the night, with like other streeties and stuff.

Q: Mmm.

A: Prior to the night, no. But she had always dressed up all the time and stuff like that. She wears makeup and all that kind of stuff.

Q: Did you - you - suggest that you had some idea that she was under 16?

A: No, not really. I wasn't thinking about ...

Q: Ok.

A: That at all.

Q: Prior to that?

A: No.

Q: You say at some stage ...

A: I assumed.

Q: You think 15?

A: I assumed.

Q: 16?

A: Yeah, assumed she was.

Q: Did you ever ask her?

A: No.

Q: Was there ever any mention of her name - of her age?

A: I, I thought I overheard her say to Jason that she was 16.

Q: I'd suggest to you that by doing this stuff with Aleisha (sic) that you have taken acts - you have taken part in acts of sexual penetration with a child under 16. What do you say to that?

A: I didn't know that was her age and I didn't want to do it and it was sort of - I didn't think that - I'm you know, I was forced like by Jason and her and like, they were both willing like and happy.

24 At the time of the offences, s 45(4) of the Crimes Act 1958 provided as follows:

Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 10 or older and -

(a) the accused believed on reasonable grounds that the child was aged 16 or older; or

(b) the accused was not more than 2 years older than the child; or

(c) the accused believed on reasonable grounds that he or she was married to the child.

25 Her Honour provided the following directions to the jury as to the issue of the age of RK

As to sexual penetration of a child under 16 years****:

The third element relates to the complainant. The prosecution must prove that she was under the age of 16 at the time the alleged acts of sexual penetration took place. In this case there is no dispute that [RK] was under 16 at the time of the alleged acts of sexual penetration, and you have obviously got her evidence, the evidence of her mother, but there is no dispute in relation to what her age was at the relevant time.

Now I need to say something further to you. Even if you find that the prosecution has proven all of these three elements of the offence, as I have just explained them to you, Aleisha Werry would not be necessarily guilty of any of these offences. This is because in certain circumstances consent will be a defence, and in this case there is no dispute that there was consent. It is not argued that [RK] was not consenting. The law says that consent will only be a defence relevant to this matter if the accused believed on reasonable grounds that the complainant was at least 16 years old at the time of the alleged penetration, and I pause to remind you that this does not place a burden on the accused to prove anything, rather the prosecution must prove beyond reasonable doubt either: that Aleisha Werry did not believe that [RK] was aged 16 or over at the time of the alleged penetration. (When I say that, I remind you again, each count separately, so as you go through the counts). Or that Aleisha Werry did not have reasonable grounds to believe that [RK] was aged 16 or over at the time of the alleged penetration. For there to be reasonable grounds for a belief, the belief must be based on facts which would have caused a reasonable person to believe the same thing. So the prosecution must prove that even if Aleisha Werry may have believed [RK] was 16 or over a reasonable person in her situation would not have reached that conclusion based on the facts ...

Now relevant however to counts 6, 7, 8, 9, 11, 13 and 16, if the prosecution has proven beyond reasonable doubt that Aleisha Werry did not believe on reasonable grounds that [RK] was at least 16 years old at the time of the alleged penetration, then consent would not be a defence and will not be relevant to your determination of her guilt. If, however, you find that this has not been proven then consent is a defence in relation to these counts, and here it is not an issue that [RK] consented to the sexual acts, so you do not need to trouble yourselves in relation as to whether there was consent. That is conceded.

26 Her Honour then summarised the elements of sexual penetration of a child under the age of 16 years and went on to say further:

And if you decide that these elements have been proven beyond reasonable doubt, you must then decide if the prosecution has proven to the same standard beyond reasonable doubt that Aleisha Werry did not believe that [RK] was aged 16 or older at the relevant time, or that Aleisha Werry had no reasonable grounds to believe that [RK] was aged 16 or older at the relevant time.

Now again even if you find that the prosecution has proven all six elements of these offences, or whichever one you were considering at a relevant time, Aleisha Werry will not necessarily be guilty of one or any of these offences because, again, in certain circumstances, consent will be a defence. The prosecution must prove either that Aleisha Werry did not believe that [RK] was aged 16 or over at the relevant time, or, that Aleisha Werry had no reasonable ground to believe that [RK] was aged 16 or older at the relevant time. If the prosecution do not prove either of these matters, then consent is the defence, and there, again, is no dispute that [RK] was consenting. So it is the same situation as in relation to sexual penetration, child under 16, even if the elements are made out, you need to move to consider whether, in the circumstances of this case, consent becomes the defence because the prosecution have not proved that Aleisha Werry did not believe that [RK] was aged 16 or over at the relevant time, or that Aleisha Werry had no reasonable grounds to believe that [RK] was aged 16 or older at the relevant time. And, I again remind you, you have got to be careful because it sounds like it is something that is within the accused's knowledge, but it is not something an accused has to prove. The accused does not have to prove anything; to ask yourself a question that asks "Has the accused satisfied me?" would be to reverse the onus of proof. You must not do that. You must always ask yourselves "Have the prosecution satisfied me?" A defendant in a criminal trial does not have to prove anything, and I know I keep reiterating it, and I'm sorry if I have said it too many times, but it is a really really important concept, and it is something that you absolutely must keep in mind.

Having summarised the elements relevant to an offence of committing or being a party to the commission of an indecent act with a child under 16, her Honour then proceeded to say:

And if you decide that these elements have been proven beyond reasonable doubt, you must then decide if the prosecution have also proven to the same standard, beyond reasonable doubt, that Aleisha Werry did not believe that [RK] was aged 16 or older at the relevant time or that Aleisha Werry had no reasonable grounds to believe that [RK] was aged 16 or older at the relevant time.

In addition her Honour provided a very detailed summary of the evidence given by RK and Ryan and of the statements made to police by the applicant in the course of her interview by them.

27 No exception was taken as to her Honour's directions on these matters.

28 Her Honour provided the following summaries of the way in which each side put its case about the age of RK in respect to counts 6 to 21 which related to the events of 5 July 2004

In relation to age in the video counts, the prosecution urges you to take the view that [RK] had met the accused at Frankston squats when she was 11 or 12 and that about a year after the first meeting had sex for the first time, that she was thus aware of the complainant's appearance and sexual development and the prosecution also urge you to accept that [RK] said in relation to the accused telling her on the night of the video not to tell Jason she was 13. The prosecution say you should be satisfied that the accused woman did not believe that the complainant was 16 or over and even if she thought that she did believe it, that it was certainly not reasonable. The prosecution say you should not accept the evidence of the accused in relation to the issue of age and when she first met the complainant. The prosecution say to you that you should take the view that she has lied and that in coming to that view you should take into account interactions that you can view on the video [RK's] evidence, the evidence of Jason Ryan in relation to who made the introductions and that you should have no difficulty in coming to that view.

In relation to age and belief in age she took you to her client's interview and said 15, 16 [RK]. She took you to other parts of the interview where her client has said [RK] was pretty much saying she was 16, she only met her on the video night, nothing suggested to her that she was 13 and she said that she did not know she was 13. She said that she did not know she was 13. She said you need to take into account that she was associating with older people, lots of makeup, would have been "all dolled up", heavy makeup even if her client had seen her in the street.

29 Upon appeal it is now argued that her Honour's directions were inadequate. In argument before us, counsel for the applicant after some hesitation, conceded, as he was bound to do, that no exception could be taken to the directions given by the trial judge as to the burden of proof and that the complaint raised by ground 2 is misconceived. Nevertheless he maintains his argument that the trial judge had not directed the jury appropriately as to the evidence relating to the age of RK and the evidence before the jury which went to the issue of whether or not the accused believed on reasonable grounds that RK was aged 16 years or older. In particular he submits that the trial judge should have directed the jury that there was no corroboration of the evidence of RK that she had told the applicant that she was aged 13 years.

30 In my view the trial judge provided careful directions as to the issue of whether the prosecution had proved beyond reasonable doubt that either the applicant did not believe that RK was aged 16 years or older or that she did not have reasonable grounds for such a belief. No complaint can be made of the directions in this regard. Furthermore her Honour complied with her obligations to explain to the jury how the law applies to the facts of the case. There was no requirement for her Honour to direct the jury that the evidence of RK as to what she told the applicant as to her age required corroboration. There is no substance in either ground 1 or ground 2.

31 It is convenient to consider jointly grounds 3 and 4 which contend that the trial judge's directions in relation to uncharged acts was inadequate.

32 As stated above, RK gave evidence that she had met the applicant when she was aged 11 or 12 years. She gave evidence of having engaged in sexual activity with the applicant in Frankston and in Hastings. In the course of giving that evidence she referred to sexual activity in which she engaged with the applicant which activity was not the subject of counts 1 to 5 in the presentment. The trial judge referred to this evidence and gave the following direction to the jury:

I tell you that that evidence is admitted solely to establish the sexual relationship alleged to exist between the accused and the complainant as part of the context and setting in which the offences which are charged are alleged to have occurred. That is the purpose of that evidence and the only way you can use it, if you accept it. Further, even if you do not accept that evidence or part of it, you cannot use it in proof of any of the counts charged. The commission of the offences charged can only be proved by evidence relating to those counts or charges and not by evidence relating to conduct which is not the subject of the counts, and further, if you do accept that evidence or part of it, you must not reason that because the accused engaged in that other sexual conduct, she is the kind of person who is likely to have done so on the occasions charged. So there is a very limited way in which you can use evidence of uncharged sexual acts. You must be rigorous and you must be careful how you use that evidence.

33 It is submitted on behalf of the applicant that her Honour's directions were deficient in that they failed to instruct the jury that they had to be satisfied beyond reasonable doubt that such acts had occurred. In this regard reliance was had upon R v Sadler[2], which decision was handed down well after the trial of the applicant. In particular, reliance is placed upon the following passage of the Court's judgment in Sadler[3]:

... a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.

34 Her Honour did not direct the jury in accordance with the above requirements, but presumably her Honour directed the jury in accordance with R v Loguancio[4]. In the circumstances of this case no miscarriage of justice arises. The issue of whether, as a circumstantial fact, the appellant had a sexual relationship with or interest in RK was a matter of relevance in relation only to counts 1 to 5, of which the applicant was acquitted. In relation to counts 6 to 20 the only live issues before the jury were whether sexual penetration had occurred, and/or whether indecent acts with or in the presence of RK had been committed by the applicant, and whether or not the applicant had a reasonable belief that the applicant was aged 16 years or older. As to count 21 the issues were whether or not the applicant made or produced a videotape, and whether or not the videotape depicted a person engaging in sexual activity, whether or not the person depicted in the videotape was under the age of 18 years and whether or not at the time of making the videotape the applicant knew that it contained child pornography, or was aware that this was likely.

35 The evidence of uncharged acts was irrelevant to each of the above issues on the counts on which the applicant was convicted. The question of whether or not an inference could be drawn that the applicant had a sexual relationship with or interest in RK was of no relevance in circumstances where the objective evidence, namely the videotape, established a sexual relationship with the victim. A sexual interest in RK was not in issue for the purpose of the offences the subject of counts 6 to 21.

36 However, counsel for the applicant, whilst conceding that the evidence of uncharged acts was irrelevant to the issue of establishing a sexual relationship or interest in RK, nevertheless contends that the evidence in question was relevant in another manner. It will be recalled that in her interview with police, the applicant had stated that she had never met RK prior to the night of 5 July 2004. The evidence of RK was that she had met the applicant some years earlier and indeed had had a sexual relationship with her over a period of time leading up to 5 July 2004. The evidence of this earlier relationship which included evidence of both uncharged and charged acts was thus relevant to establishing evidence of the basis upon which the applicant had knowledge of the true age of RK. It will be further recalled that in summarising the prosecution's argument as to whether the applicant had reasonable belief that RK was aged 16 years or older, her Honour had referred to the evidence that the applicant had met RK when she was ' ... 11 or 12 and then after about a year of after her first meeting had sex for the first time, that she was thus aware of the complainant's appearance and sexual development ... '. Accordingly the nature of the relationship between RK and the applicant was of relevance to the issue of proof by the prosecution that the applicant had no reasonable belief that RK was aged under 16 years.

37 Counsel for the applicant suggested that in such circumstances the trial judge should have directed the jury that they had to be satisfied beyond reasonable doubt of the uncharged acts before they could conclude that the relationship between RK and the applicant was a relevant factor in determining the question whether as at 5 July 2004 the applicant had a reasonable belief that RK was aged 16 years or older.

38 In my view no such direction was required. In R v Sadler the Court gave consideration to the nature of a direction to be given in circumstances where evidence of uncharged sexual acts was before a jury. Having given detailed consideration of the High Court's recent decision in R v HML[5], the Court in its joint judgment said:[6]

In face of the competing views expressed in HML, we respectfully understand the ratio of the decision to be limited to this: that where evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig[7] and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in the complainant unless satisfied of that beyond reasonable doubt.

With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts.

39 Accordingly, in the case before us the evidence of uncharged acts, so far as they related to counts 6 to 21, was not admitted for the purpose of establishing a propensity to commit acts of the kind charged. Indeed the evidence was not admitted for that purpose in relation to counts 1 to 5 of which the applicant was acquitted. The evidence was admitted, as the trial judge directed the jury to 'establish the sexual relationship alleged to exist between the accused and the complainant as part of the context and setting in which the offences which are charged are alleged to have occurred'. Certainly, in relation to counts 6 to 21 the evidence was not tendered for the purpose of establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that sexual interest. Such a sexual interest was graphically established by reason of the videotape of the whole of the relevant offending. The context and setting in which evidence of uncharged acts was admitted in relation to counts 6 to 21 was part of the circumstantial matrix of facts, none of which required proof to any particular standard, which established that the applicant did not have a reasonable belief that RK was aged 16 years and over. There was a considerable body of circumstantial evidence which supported that contention as well as the direct evidence of RK that she had told the applicant her age, and that the applicant had told her to tell Ryan that she was 17 years of age, and was not to tell Ryan she was 13 years of age. There was evidence of Ryan to the effect that he had known the applicant for less than six months prior to 5 July 2004. His evidence was that he went to meet the applicant at her boyfriend's house on that date pursuant to a telephone conversation with her. The arrangement made during the telephone conversation was that the applicant and RK would go back to his house for a 'lesbian sex show'. His evidence was that when he arrived there RK was asleep on the couch and that she was woken up and came with the applicant to his house where they had a shower together before 'starting the show'. His evidence was that he had not met RK prior to that day. It was open to the jury to reject the statement made by the applicant to police that she did not know RK prior to 5 July 2004, having only seen her in the street. It was in those circumstances that the evidence of prior relationship including the evidence of uncharged sexual acts was relevant. In these circumstances, there was no real risk of the jury using evidence of the uncharged sexual acts as a sufficiently important step in their reasoning process so as to require a direction from the trial judge that they should be satisfied of those facts beyond reasonable doubt. In my view there was no basis upon which the judge should have perceived that the jury were likely to use the evidence of uncharged acts as propensity reasoning. Nor was it realistic to contemplate that any reasonable juror would be unable to differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts. In my view no sensible complaint can be made about the directions given by the trial judge as to the uncharged acts in the particular circumstances of this case. In the circumstances of this case, the decision of R v Sadler did not require the trial judge to give separate directions that such uncharged acts were required to be proved beyond reasonable doubt.

40 Counsel for the applicant did not advance any oral argument in support of ground 5. In my view there is no substance in this ground.

41 For the above reasons I would refuse the application for leave to appeal conviction.

42 I agree with Kellam JA that the appeal should be dismissed for the reasons he gives.

[1] [2008] VSCA 198, [65].

[2] [2008] VSCA 198.

[4] [2000] VSCA 33; (2000) 1 VR 235, [9].

[5] [2008] HCA 16; (2008) 245 ALR 204.

[6] [2008] VSCA 198 [59].

[7] [1995] HCA 7; (1995) 182 CLR 461, the common law test being namely, that the evidence sought to be admitted supports the inference that the accused is guilty of the offence charged, and the evidence sought to be admitted is open to no other, innocent, interpretation.