Ritchie (a Pseudonym) v The Queen [2018] VSCA 31

1 This Court, on 22 December 2017, made orders granting the applicant leave to appeal against conviction and allowing her appeal. It ordered that there be a new trial on charges 5, 6, 7 and 10 of the Indictment (Indictment No: E11831906). It delivered a short statement explaining that it upheld proposed ground 2 of the grounds of appeal. It indicated that it would deliver reasons in due course. I have had the benefit of reading, in draft form, the judgment of Beale AJA. I agree with the reasons of his Honour in support of the orders made.

3 On 22 December 2017, this Court granted leave to appeal against conviction to the applicant, Leona Ritchie, and upheld her appeal. The Court quashed her convictions on four charges and ordered a new trial. The Court said it would provide its reasons in due course. These are my reasons for joining in those orders.

4 The applicant was found guilty by a jury of two charges of gross indecency and two charges of incest in respect of her stepson, David Ritchie. She was acquitted on the remaining seven charges of indecent assault and incest, which also concerned her stepson.

Gross Indecency [Crimes Act 1958 s 50(1)]

Incest [Crimes Act 1958 s 52(1)]

Sentenced on charges 7 and 10 as a serious sexual offender

Reporting pursuant to s 34 of the Sexual Offenders Registration Act 2004 for life

6 The applicant relied on five proposed grounds of appeal. [2] In my view, it was appropriate to grant leave to appeal only on proposed Ground 2 which asserted that the judge failed to give the jury appropriate directions as to the permissible and impermissible uses of an incident where Robert Ritchie, the applicant's husband and complainant's father, found the applicant and complainant on a lounge room couch in a 'compromising position' ('the couch incident'). The couch incident loomed large in the trial.

7 In short, it was appropriate to allow the appeal on Ground 2 for the following reasons. The learned trial judge invited the jury to use uncharged acts as evidence of the applicant's sexual attraction to the complainant. She gave no specific direction with respect to how the jury could use evidence of the couch incident. However, the couch incident was an uncharged act and, under the umbrella of her uncharged acts direction, the judge erroneously invited the jury to use the couch incident for tendency reasoning in circumstances where there was no tendency notice and no order under s 100 of the Evidence Act 2008 dispensing with the requirement of a notice. Although the judge gave the jury an anti-propensity direction about the couch incident (and other uncharged acts), this did not foreclose tendency reasoning, which could have been significant in the jury returning its four guilty verdicts.

8 The applicant married Robert Ritchie in May 1985 when the complainant was aged 13. The complainant and his two younger sisters Michelle and Louise would spend time with their father and the applicant on access visits.

9 On the prosecution case, it was during these access visits between May 1985 and February 1987 that the offending occurred. During this period, the complainant was aged between 13 and 15 years and the applicant was aged between 25 and 26 years.

10 Charge 5 (gross indecency) related to an incident between May 1985 and February 1987 when the complainant was aged between 13 and 15. On the prosecution's case, the applicant and the complainant were watching television alone in the lounge room when the applicant gave the complainant detailed instructions on how to give her oral sex. The applicant held open her labia and exposed her clitoris, telling the complainant to put his fingers on either side of her clitoris to expose it more. The applicant gave the complainant explicit instructions in relation to where he was to put his fingers on her clitoris, how to locate her G-spot; and introduced the 'lick the alphabet' game where the applicant instructed the complainant to lick a letter of the alphabet on her clitoris and the applicant had to guess what the letter was. The applicant then told the complainant that if he were to play the game with anyone else the applicant would tell the complainant's father that they were lovers. The applicant told the complainant that it was 'the breakfast of champions.'

11 Charges 6 and 7 relate to an incident between 5 and 7 October 1986, when the complainant was aged 14. On the prosecution case, the applicant had attended a Cyndi Lauper concert with the complainant and his sisters. After the concert the applicant and the children all returned home after which the complainant's sisters went to bed. The applicant and the complainant stayed up to watch television in the lounge room. The applicant and the complainant started kissing and the complainant gave the applicant oral sex (Charge 6 - gross indecency). The applicant then had vaginal/penile sex with the complainant (Charge 7 - incest).

12 Charge 10 relates to an incident between 8 October 1986 and 24 February 1987 when the complainant was aged between 14 and 15. On the prosecution case, the applicant gave the complainant's sisters money and directed them to go and buy fish and chips, leaving the complainant and the applicant alone at home. The applicant directed the complainant to lock the front door. The applicant then took the complainant's hand and led him to the spare room. The applicant directed the complainant to remove his clothing. After some kissing, the applicant told the complainant that they did not have much time and to lay down on a camp bed. The applicant took the complainant's penis in her hand and directed it into her vagina (Charge 10 - incest). The applicant and complainant had begun having penile/vaginal sex when they were interrupted by the return of the complainant's sisters from the fish and chip shop. The complainant unlocked the door and, according to the complainant, his sister Michelle queried why it had taken so long and said to the complainant 'I know youse are doing it.'

13 As for the couch incident, which occurred in about April or May 1988 when the complainant was 16, on the prosecution case the complainant's father Robert found the applicant and the complainant together on the couch in the lounge room in the early hours of the morning in a compromising position. According to the complainant, he and the applicant had been kissing and touching each other under a blanket with their pants down when Robert entered the room. Robert accused them of sexually improper behaviour and called the complainant's mother, Cathy McGee, to come and get the complainant. The couch incident led to a period of estrangement between the complainant and his father. The applicant also left the house for a period of weeks after this incident.

14 The defence case was that the offending did not occur, that the complainant was neither a credible nor a reliable witness and that his memory had been affected through sustained substance abuse and mental health issues.

the trial miscarried due to: (i) the prosecutor's reliance upon 'recent invention' in respect of the 'compromising position on the couch incident' in her final address, inviting incriminating conduct reasoning, and (ii) the absence of any direction as to how this 'lie' could or could not be used.

16 The evidence about the couch incident was summarised by the trial judge in her charge to the jury as follows:

Now I said I would move onto the evidence about [Robert] finding the complainant and accused in a compromising position on the couch. The prosecution case is that there are two vital pieces of evidence which support the complainant's allegations in this matter, and the prosecution case is that this is the evidence of [Robert] walking into the lounge room of the flat ... and finding the accused and the complainant in a compromising position on the couch, and the evidence of his ex-wife, [Cathy], with respect to a phone call he made to her about finding the accused and complainant in a compromising position. So I am going to briefly just remind you of the evidence that is relevant to the situation.

The complainant's evidence was that this incident occurred on a weekend when his sisters had gymkhana. He and the accused were sitting on the couch fooling around, kissing and touching each other. They were covered by a blanket and they both had their pants with the underpants down round their ankles. His evidence was that his father walked in on them and swore. He said he was going off to make a cup of coffee. He continued swearing at them and he came back in and pulled the blanket off them. At this stage, although the complainant had pulled up his pants, the accused still had her pants around her ankles, and [Robert] said to both of them, 'So who seduced who? Did you seduce my wife or did my wife seduce you?'... The complainant's evidence was that he was ashamed, he did not know what to do and he says that pretty much after that, his father opened the door and threw him out the front door and told him to 'fuck off' and not to come back. He said that after this, he did not have any contact with his father for about 12 months.

The prosecution rely on the evidence of [Cathy] as being supportive of the complainant's evidence. Her evidence was that she got a phone call from her ex-husband, who said, 'You need to come and get your son.' When she asked him why, he said, 'I caught him and my wife in a compromising position on the couch last night and I don't want to talk about it any further.' Her evidence was that she went to collect her son and she was met at the door by [Robert]. He reiterated that he had found the complainant and the accused together in a compromising position on the couch. He also said - she wasn't sure of the exact words, but something to the effect of, 'I knew something had been going on for a while, that's why I came down to check on them.' She also remembered saying to her ex-husband, 'What do you mean as to something has been going on for a while?' But she said he would not talk about it anymore. [Cathy's] evidence was that right from the word go, the allegation was that the complainant had seduced the accused, that they had been drinking, he got her drunk and seduced her. She confirmed the complainant's evidence that it was a good 12 months before [Robert] resumed contact with his son.

The accused denied that she was engaged in any sexual activity with the complainant on this occasion. That is, when [Robert] found them on the couch. Her account was that she was giving the complainant Ventolin via a spacer, as he had had a bad asthma attack. She said that she and the complainant were both fully dressed and she had a blanket over the complainant because he was cold. When [Robert] came into the room, the complainant had calmed down. She was laying him back onto the pillow when all hell broke loose. She said, '[Robert] stormed into the lounge and accused her of kissing and seducing his son.' Her evidence was that she denied the allegation, slapped him across the face and called him a pervert and then she ran out of the house and did not come back for two weeks.

[Robert's] account of the incident was that he had been out that night and he had been drinking. He got home, he might have said something to the accused and complainant before going to bed. He went to bed. He got up to go to the toilet. When he came back from the toilet, he went into the lounge room. The light was on. He saw the complainant and the accused on the couch with a blanket over them. He said he did not actually see anything, he jumped to a conclusion and accused them of acting inappropriately or something of that nature. He had made up his mind that something had happened and he pulled the blanket off them. He said that he used to sit on a couch with a blanket over himself together with his ex-wife and sexual activity took place, and he said he thought that that is what the accused and complainant were doing. He said they were both dressed and they denied what he thought he saw, and they both left.

With respect to calling his [ex]-wife [Cathy], he agreed he called her and said something to the effect of having found his son in a compromising position and, 'You need to come and get him'. He denied that when she came to get the complainant he said to her that he thought something had been going on for a while. He said that it was not long after the incident that he spoke to his son.

17 The story about the asthma attack and the Ventolin was put to the complainant in cross examination and he responded:

No I'm sorry to laugh but that's just - no that's ridiculous, that did not happen.

18 In her closing address, the prosecutor described the applicant's story about the Ventolin in these terms:

It is ridiculous and it is something, importantly, that only emerged - first emerged in the course of this trial. Nothing was said about an asthma attack in police ... statements, nothing was said to [Cathy], 'By the way [Cathy], I've been speaking to my wife and all she was doing was actually saving our son and actually giving him Ventolin.' It only emerges as evidence in this trial.

19 The applicant submitted that the prosecutor invited the jury to find that the Ventolin story was a lie told to conceal the fact that there was a sexual relationship between her and the complainant. Accordingly the lie was of great significance and was capable of being viewed by the jury as incriminating conduct, that is, as a lie emanating from a belief by the applicant that she was guilty of the charged offences. It was submitted that the jury should have been given directions in accordance with s 23 of the Jury Directions Act 2015 ('the JD Act'), namely, that there are all sorts of reasons why a person might behave in a way that makes the person look guilty and that even if the jury thought the applicant lied about the Ventolin, it must not conclude from that lie that she was guilty of the offences charged. Although trial counsel had not requested such directions under s 12 of the JD Act, there were 'substantial and compelling reasons' for the judge to give them and so, under s 16 of the JD Act, she was obliged to give the directions.

20 The respondent submitted that the prosecutor did not invite the jury to use the alleged lie as incriminating conduct. Rather, the prosecutor used it to impugn the applicant's credit. Just prior to the commencement of her closing address the prosecutor told the judge that she would be alleging recent invention in relation to the Ventolin story. No objection was taken by defence counsel at that stage or at any subsequent stage in relation to the proposed or actual use made by the prosecutor of the alleged lie. The judge was prohibited by s 15 of the JD Act from giving directions which had not been requested unless, pursuant to s 16, the judge considered that there were substantial and compelling reasons for doing so. There were no substantial and compelling reasons requiring the judge to give directions reflecting the terms of s 23 of the JD Act.

21 The respondent's submissions should be accepted. The prosecutor's description of the Ventolin story as ridiculous and a recent invention was an attack on the complainant's credit, nothing more. At no stage did the prosecutor expressly or impliedly invite the jury to reason that the applicant lied about administering the Ventolin because she believed she was guilty of the charged offences. The fact that the couch incident was an uncharged act which occurred when the complainant was 16 and the charged acts occurred when the complainant was aged between 13 and 15 counted against the jury using the lie, if they found it to be a lie, as an implied admission of guilt of the charged offences. There was no real risk of the jury engaging in that line of reasoning and the fact that experienced trial defence counsel did not raise any concerns in that regard supports this conclusion.

22 Proposed Ground 2 asserted that the judge erred in her directions as to the use that could be made of the couch incident in that:

1. The Judge failed to give any specific direction as to how it could be used as 'supporting evidence';
2. The Judge did not specifically refer to the incident as an uncharged act and thus the jury did not have the benefit of the uncharged acts direction in respect of the matter;
3. There were compelling reasons to give a specific anti-tendency reasoning direction in respect of the matter;
4. The Judge failed to direct the jury that they should not have regard to the alleged opinion expressed by [Robert Ritchie] to [Cathy McGee] to the effect that he thought something of an illicit sexual nature had been going on for some time.

23 Early in the trial, the judge gave the jury directions regarding 'uncharged acts':

In this case you've just heard some evidence from the complainant about the alleged sexual offending by the accused and during the course of his evidence he referred to some sexual activity which he alleges occurred, which is not the subject of charges on the presentment ... For example, I think he referred at one stage to the accused asking him to suck her nipples or he sucked her nipples. Now this evidence of other sexual conduct is admitted for the limited purpose of proving the sexual attraction the accused had for the complainant; as well as context and setting in which the offences are alleged to have occurred. Even if you accept beyond reasonable doubt, all of that evidence or parts of that evidence, it does not prove the offences with which the accused is being charged. So the commission of the offences that she's being charged with on the indictment can only be proved by evidence which relates to those offences and not to evidence of other sexual behaviour which is not the subject matter of a charge and you must not reason that because the accused engaged in the alleged sexual behaviour, that she was the kind of person likely to have committed the specific charges on the indictment. You have to consider each charge against the accused in the light of the evidence in respect of the charge that you are then considering and at a later stage in this trial, you will be given directions with respect to the law regarding these charges and I will identify the evidence upon which the Crown relies on with respect to each charge. So things like sucking the nipple and we kissed passionately beforehand, those sort of matters are just to give you some context; they're not actual charges.

24 In her charge, in the context of an unreliable witness direction, the judge referred specifically to the couch incident and directed the jury that they could use evidence of the couch incident, and a conversation between Robert and Cathy about the couch incident, as independent evidence supporting the complainant:

I must warn you of the need for caution when considering the evidence of the complainant. I must give you this warning because the complainant's evidence may have been affected by his use of drugs at the time of the alleged offences or his subsequent history of drug use or his mental health at the time when he made the allegations in 2012 ... Considering the safety of relying on the complainant's evidence you should also have regard to any supporting evidence led in this trial that you accept. By supporting evidence I mean evidence from a source that is independent of the complainant and that tends to show the truth of the complainant's evidence of the accused's guilt. While there was no evidence in this trial that there was any witness to the alleged offending set out on the indictment the prosecution has relied on the evidence of [Robert] finding the accused and the complainant in a compromising position on the couch further down the track after the alleged offending, and also on the evidence of [Cathy], [Robert's] ex-wife, about a phone call that he made to her about their compromising position on the couch. I will return to this later in my charge.

25 A little further on in her charge, the judge revisited her 'uncharged acts' direction:

This is an appropriate moment to remind you also of another direction I gave you at the beginning of the trial. Remember I told you that the evidence of other sexual conduct alleged to have been committed by the accused, which is not the subject of charges on the indictment, was only admitted for the limited purpose of proving sexual attraction that the accused had for the complainant, and also to provide a context and setting. I remind you that even if you accept beyond reasonable doubt all of this other evidence or part of this other evidence, it does not prove the offences with which the accused has been charged. Commission of the offences on the indictment can only be proved by the evidence which relates to those alleged offences, not by evidence of sexual behaviour which is not subject of a matter on a charge. You also must not reason that because the accused engaged in this other alleged sexual behaviour, she was the type of person who would have been likely to have done so on the specific occasion with which she has been charged.

26 In written submissions, the applicant submitted that the couch incident was of central importance in the trial and the jury needed to be carefully directed as to how they could and could not use the relevant evidence. The couch incident amounted to 'an uncharged act or at the very least uncharged sexual misconduct' but the judge failed to identify it as such and the jury would not have appreciated that the directions on uncharged acts applied to it. Whilst, in the context of an unreliable witness direction, the jury were directed that they could use the evidence of the couch incident as supporting evidence for the complainant, they were not directed as to how it supported the complainant. The prosecutor in her closing address relied on the evidence of the couch incident as evidence of a sexual relationship, which invited tendency reasoning by the jury in circumstances where no tendency notice had been served. The jury should have been given the following directions about the couch incident: a limiting direction as to the use they could make of the couch incident[3] and an anti-propensity direction. Evidence of Robert's previous representation to Cathy that he knew something had been going on for some time should not have been admitted and compounded the dangers arising from the lack of guidance given to the jury regarding the couch incident. The judge should have directed the jury 'against accepting the implication of the evidence'. Notwithstanding defence counsel's failure to request specific directions regarding the couch incident and Robert's previous representation to Cathy, the judge was obliged to give the directions under s 16 of the JD Act because there were 'substantial and compelling reasons' for doing so.

27 In oral submissions, the applicant submitted that the couch incident was 'an unguided missile'. The jury should have been given the following directions: a direction that they could only use the couch incident as evidence of a sexual relationship at the time of the couch incident and that it did not necessarily mean there was a sexual relationship at the time of the earlier charged acts; a direction not to use the relevant evidence as direct evidence of the charged acts; and an anti-propensity direction.

28 In written submissions, the respondent highlighted that defence counsel did not take exception to the judge's comments regarding the couch incident and did not request any directions on tendency or opinion evidence. With regard to her directions on uncharged acts, the judge did not identify them, and was not asked to specifically refer to the couch incident, but it would have been clear to the jury that the couch incident involved an uncharged act, a point that was made by defence counsel in her closing address. The judge's directions on uncharged acts, which necessarily incorporated the couch incident, were adequate and appropriate. The judge told the jury, in the context of an unreliable witness direction, that they could use the couch incident as evidence supporting the complainant, which was also an appropriate and adequate direction. The respondent submitted that neither the prosecutor nor the judge invited the jury to engage in tendency reasoning and defence counsel did not seek a direction against tendency reasoning. Since the applicant was acquitted on a number of charges, the jury did not impermissibly reason from the couch incident to there having been a sexual relationship and the applicant must therefore be guilty of all the charged offences. As for Cathy's evidence that Robert said he knew something had been going on for a while, the evidence was relevant because it explained, first, why Robert kicked his son out and called Cathy to come and collect him and, second, it supported the complainant's account of what happened during the couch incident, and the prosecutor did not rely on it beyond that. Given that trial counsel did not request the directions which the applicant says should have been given, the onus was on the applicant to demonstrate that it was necessary for the trial judge to give those directions, which is not the case. There was no substantial miscarriage of justice.

29 In oral submissions, the respondent emphasised that pursuant to s 15 of the JD Act, the trial judge was prohibited from giving the directions for which the applicant contends unless there were substantial and compelling reasons for doing so. No such reasons existed, especially as the jury would have understood that the uncharged acts directions applied to the couch incident. The jury were instructed that they could use the evidence about other sexual misconduct for context and as evidence of sexual attraction. The respondent submitted that the direction to the effect that uncharged acts could be used as evidence of the applicant's sexual attraction to the complainant did not invite tendency reasoning: rather it invited motive reasoning. Tendency reasoning was foreclosed by the anti-propensity direction which was part of the uncharged acts direction. The evidence that Robert thought something had been going on for some time was not inadmissible opinion evidence: it was not relied on to prove the truth of what was asserted in the opinion, namely, that the applicant and complainant had been in a sexual relationship for some time. Rather, it was admissible context evidence. It helped explain why Robert kicked the complainant out of his home and the fact that the two were subsequently estranged for a lengthy period.

30 On the complainant's account, the couch incident clearly involved uncharged sexual misconduct by the applicant. Defence counsel in her closing address virtually conceded that the couch incident involved some sexual misconduct but stressed that the couch incident was not the subject of any charge. She said:

Now the couch, the couch incident, all right, well obviously something took place, obviously. Night in June 1988 somewhere around there, 28 years ago. All right. You've got several different versions of this event. You've got about what, four or five people who've given evidence about it and you've got something different from everybody. What I suggest to you is this and I remind you there's no charge in relation to this incident, it's not a - it's not a charged act as such. It's part of the narrative and Her Honour will give you some directions about how you can use it ...

31 As mentioned, early in the trial, and again in her charge, the judge directed the jury regarding the use they could and could not make of evidence of sexual misconduct which was not the subject of a charge. As a matter of logic and common sense, the jury would have understood that such directions encompassed the couch incident. To suggest otherwise insults the intelligence of the jury: 'Jurors are not stupid. The law should not treat them as though they were'.[4]

32 Consequently, the applicant had the benefit of an anti-substitution direction and an anti-propensity direction in relation to the couch incident and other uncharged acts.

33 Turning then to the directions given by the judge as to the permissible use of uncharged acts; as mentioned, she told the jury that they could use evidence of other sexual misconduct, first, as evidence of sexual attraction and, second, as context.

34 The respondent's submission that the first of these permissible use directions invited 'motive reasoning' not 'tendency reasoning' must be rejected based on the scope of the definition of tendency evidence, persuasive authority and the appropriateness of pt 3.6 of the Evidence Act 2008 regulating such evidence.

35 Tendency evidence, as defined in s 97 of the Evidence Act 2008, includes evidence of a tendency to have a state of mind. The scope of 'tendency evidence' is therefore, broad enough to encompass evidence of an adult's sexual interest in a child.

36 The weight of authority clearly favours the view that evidence of an adult accused's sexual interest in a child invites tendency reasoning and is to be treated as tendency evidence.

37 In ES v The Queen (No 1), Hodgson JA, with whom Wheally and Buddin JJ agreed, said:

Where a person is charged with one or more sexual offences against a child, evidence of uncharged inappropriate sexual contact between the accused and that child can have probative value. In my opinion, there are (at least theoretically) three broad ways in which it can do so:

(1) As context evidence (so that the charged acts are not seen unrealistically as being isolated);

(2) As motive evidence (disclosing a sexual interest in the complainant that could motivate the charged acts); and

(3) As tendency evidence (disclosing a tendency to have a particular state of mind and/or to act in a particular way, including a tendency to act on the sexual interest that the accused has).

However, although there is in my opinion a theoretical distinction between categories (2) and (3) (see Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [48]- [67], HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [155]- [158] per Hayne J, [273]-[279] per Heydon J), and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard at [68], [101].[5]

38 In Colquhoun v The Queen (No 1), Macfarlan JA, with whom Fullerton and Adamson JJ agreed, said:

The courts have ... treated evidence of an accused's sexual interest in, at least, a child complainant as being tendency evidence subject to the strictures of ss 97 and 101 of the Evidence Act even when the evidence does not suggest that the accused had previously committed an unlawful sexual act in relation to the child (R v AH (1999) 42 NSWLR 702 at 708 - 9; Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 462 at [87]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [30] and [39]; ES v R (No 1) [2010] NSWCCA 197 at [38] - [40]; ES v R (No 2) [2010] NSWCCA 198 at [67]; RWC v R [2010] NSWCCA 332 at [126] - [128]; BBH v R [2012] HCA 9; 245 CLR 499 at [152]; Steadman v R (No 1) [2013] NSWCCA 55 at [10]). Whilst I have some misgivings as to whether evidence which is in effect no more than evidence of motive (because it is simply evidence of a sexual interest of the accused in the complainant which has not been acted upon) should be treated as tendency evidence, the Court must accept the existing approach, at least where, as here, there has been no specific challenge to it.[6]

39 In WFS v The Queen,[7] this Court undertook a detailed consideration of the uses of relationship evidence. WFS supports the prevailing approach in New South Wales that evidence of an adult accused's sexual interest in a child complainant invites tendency reasoning. Robson AJA, with whom Buchanan JA and Whelan AJA agreed, said :

[T]he authorities ... establish the following:

(1) The relationship evidence must satisfy the admissibility tests under s 55 and s 56 of the Evidence Act 2008. It must be relevant to some issue in the case.

(2) Relationship evidence of conduct with a sexual connotation between the complainant and the accused, other than that which is the subject of the offence or offences charged, may be relevant in two different ways:

(a) the relationship revealed may place the events which give rise to a particular charge into their true context, as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated; and

(b) the guilty passion of the accused revealed - or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant - is directly relevant to proving that the offence charged was committed.

(3) The first category of evidence is usually described as context relationship evidence and the second as 'guilty passion' or tendency or propensity relationship evidence.

(4) The 'guilty passion' evidence, if admitted, may be used to establish that the accused is more likely to have committed the sexual acts he is charged with.

(5) The context relationship evidence must not be used to establish that the accused is more likely to have committed the sexual acts he is charged with.

(6) The context relationship evidence may be used to assess and evaluate the evidence of the complainant and the accused about each version of the alleged offences.

(7) The trial judge should identify the relationship evidence and must instruct the jury on the use to which the relationship evidence may and may not be used.

(8) Ordinarily, the trial judge must direct the jury that:

(a) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct (the substitution direction); and

(b) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged (the propensity direction).

(9) Simply because the evidence is said to disclose the relationship of the accused and the complainant, it does not necessarily follow that it is either relevant or has sufficient probative weight to justify its admission having regard to its potentiality to prejudice the fair trial of the accused.[8]

40 Finally, in the High Court decision of Hughes v The Queen, the plurality said:

[Section] 97(1) in terms provides for the admission of evidence of a person's tendency to have a particular state of mind. An adult's sexual interest in young children is a particular state of mind. On the trial of a sexual offence against a young child, proof of that particular state of mind may have the capacity to have significant probative value.[9]

41 In submitting that the evidence of 'other sexual misconduct' including the couch incident was evidence of motive which did not invite tendency reasoning, the respondent did not rely on any authorities to challenge the prevailing approach in New South Wales. Nor did the respondent deal with the practical difficulties which led Hodgson JA to forsake categorisation of such evidence as evidence of motive.

42 The New South Wales approach, which is consistent with the approach of this Court, strikes me as a sensible one. Certainly, I do not think it is plainly wrong and so, applying the principle of comity,[10] it should be followed in this case.

43 Practical considerations also favour the New South Wales approach. Evidence of child sexual abuse is particularly likely to trigger emotive responses in jurors. It is appropriate that the safeguards contained in pt 3.6 of the Evidence Act 2008 regulate the admissibility of such evidence.

44 As mentioned, the judge gave the jury an anti-propensity direction as part of her directions on uncharged acts: she told the jury that they 'must not reason that, because the accused engaged in this other alleged sexual behaviour, she was the type of person who would have been likely to have done so on the specific occasion with which she has been charged'. This direction, which was common before the reforms made by the JD Acts of 2013 and 2015,[11] guarded against what is sometimes labelled 'rank propensity reasoning' - 'rank' because it is so general and unreliable. But it did not foreclose more specific tendency reasoning. The jury could have given full effect to the anti-propensity direction and yet still have reasoned that the couch incident demonstrated the applicant's sexual interest in the complainant, making it more likely that she committed the charged acts.

45 Service of a tendency notice is a precondition for the admissibility of tendency evidence[12] unless the court dispenses with that requirement under s 100 of the Evidence Act 2008 or the tendency evidence is adduced in response to tendency evidence adduced by the accused.[13] No order was made under s 100 in this case and the tendency evidence was not responsive evidence. Even if the couch incident was properly admitted for a non-tendency purpose (for example, context) , s 95 of the Act prohibited its use for a tendency purpose.

46 Hence, the jury were erroneously invited to use the couch incident for tendency reasoning.

47 Whether that error amounted to a 'substantial miscarriage of justice' under s 276 of the Criminal Procedure Act 2009 is to be determined by the application of the principles enunciated by the majority of the High Court in Baini v The Queen,[14] which were analysed by this Court in Andelman v The Queen.[15]

48 In Andelman, a case where the prosecutor and the trial judge invited the jury to engage in coincidence reasoning despite the absence of a coincidence notice and a dispensation order under s 100, this Court said:[16]

The following salient points affecting the disposition of this appeal emerge from the majority's analysis [in Baini] :

• Section 276 is not to be interpreted solely by reference to the interpretation given to the common form criminal appeal proviso in Weiss v The Queen.[17] Comparing 'a statute with its legislative predecessor ... is only a useful exercise if doing so illuminates the actual text of the new provision'.[18]
• There is no 'single universally applicable' definition of a 'substantial miscarriage of justice'. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are 'too numerous and too different to permit prescription of a singular test'.[19]
• With respect to ss 276(1)(b) and (c) ... the types of substantial miscarriage of justice include cases where 'there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial'.[20]
• Those paragraphs also cover cases where 'there has been a serious departure from the prescribed processes for trial'.[21]
• A 'substantial miscarriage of justice' may occur where there has been a 'departure from process' even if the 'verdict was open or it is not possible to conclude whether the verdict was open'.[22]
• The question whether there has been a 'substantial miscarriage of justice' 'may be affected by the strength of the prosecution case'. In such cases, however, the Court of Appeal must be aware of the 'natural limitations that attend the appellate task'.[23]
• A finding that the conviction was 'inevitable' is merely 'relevant' to the Court's determination of whether there has been a substantial miscarriage of justice. It does not conclude the issue.[24]
• If it is submitted that the verdict was inevitable, the appellant need show 'no more than that, had there been no error, the jury may have entertained a doubt'.[25]
• In assessing 'inevitability', the Court of Appeal must 'decide that question on the written record of the trial'.[26]
• In cases such as Baini where evidence has been wrongly admitted or excluded, the Court cannot determine that there has been no substantial miscarriage of justice 'unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made'.[27]

49 The use of the evidence of the couch incident for tendency reasoning could have been significant in the fact finding process. The evidence provided independent support for the allegation that the applicant had an inappropriate sexual interest in the complainant when he was 16. If she had such an interest at that time, this could have been viewed by the jury as significantly affecting the probabilities that she had such an interest in him during the charged period, even if he may have been as young as 13 at the time of the earliest charged conduct.

50 The fact that the jury acquitted the applicant on a number of charges does not mean that any tendency reasoning in which the jury engaged was unimportant. The acquittals on charges 1 to 4 were probably due to medical records adduced by the defence that supported the applicant's claim that she was on crutches at the relevant time, which contradicted the complainant's account and, in the circumstances, made it less likely that she would have been engaging in the sexual conduct alleged. As submitted by the applicant, the acquittals on charges 8 and 11 could have been due to inconsistencies between the way the case was opened by the prosecution and the evidence actually adduced on those charges. As for charge 9, the complainant gave no evidence in support of that charge.

51 To summarise in relation to proposed Ground 2, the judge's directions regarding uncharged acts are likely to have been understood by the jury as encompassing the couch incident. In directing the jury that they could use evidence of uncharged acts as evidence of the applicant's sexual attraction to the complainant, the jury were invited to engage in tendency reasoning even though the evidence was inadmissible for that purpose given the absence of a tendency notice. The admission of the evidence for a tendency purpose is likely to have been significant in the jury's determination of whether the applicant committed the offences of which she was convicted. There was consequently a substantial miscarriage of justice, justifying a grant of leave to appeal on proposed Ground 2 and the upholding of the appeal on that ground.

the trial miscarried due to the admission into evidence of the hearsay statements attributed to [Michelle Ritchie] and [Robert Ritchie] concerning their suspicions of a sexual relationship, or in the alternative a failure to give directions to the jury limiting the use that could be made of the statements.

53 As regards the evidence of Michelle's previous representation, the complainant said in examination in chief that when his sisters returned from buying fish and chips, and he took a long time to let them in the front door, Michelle said to him 'I know youse are doing it and I'm telling Dad.' In cross examination, he said he was not 100 per cent certain that that was what she said but it was 'something along those lines, what's going on here, what's happenin (sic).'

54 When Michelle gave evidence, she made no mention, in examination in chief, of making any such comment. In cross examination, she said she could not recall saying to the complainant that she knew what he and the applicant were up to.

55 As regards the evidence of Robert's previous representation, Cathy gave evidence that Robert called her to come and collect the complainant after the couch incident. Upon arriving at the house to collect her son, Cathy spoke to Robert. In examination in chief, she gave the following account of that conversation:

Then what happened?---I got to the door and [Robert] met me at the door and was very upset and crying and we hugged and I asked him again what had happened and he reiterated that he'd found [David] and [Leona] together in a compromising position on the couch.

Yes?---And followed that statement with - I'm not sure of the exact words, but something to the effect of, 'I knew something had been going on for a while, that's why I came down to check on them.'

That's what [Robert] said?---Yes.

So, did you say anything further to him?---I can't really recall what I said in the exact words, but I do remember saying, 'What do you mean as to something had been going on for a while?' And then he wouldn't talk about it anymore.

56 In written submissions, the applicant submitted that the evidence of Michelle and Robert's previous representations was irrelevant. Evidence of their belief did not make the ultimate fact in issue - whether the charged conduct occurred - more probable. The trial judge should have directed the jury that the evidence was irrelevant, unreliable[28] and could not be used for the truth of the asserted facts.

57 The respondent submitted that no objection was taken to the admissibility of these previous representations and no directions were sought regarding them by trial counsel. The fact that Michelle and Robert did not agree that they had made these previous representations lessened their significance in the trial, as did the fact that in her closing address the prosecutor did not rely on either of these previous representations as supporting evidence.

58 I will firstly deal with the evidence of Michelle's previous representation. It is difficult to see how it passes the test of relevance in s 55 of the Evidence Act 2008. Assuming that the previous representation was made, the foundation for the assertion 'I know youse are doing it' was purely a matter of speculation. Whether the foundation was sound or unsound was a mystery. In those circumstances, how could the jury find that the asserted fact in the previous representation rationally affected the assessment of the probability of the existence of a fact in issue in the proceeding?

59 But in my view the impugned evidence was likely to have been of little, if any, consequence in the trial. Whilst, in examination in chief, the complainant claimed Michelle said 'I know youse are doing it', he backed away from that in cross examination, saying merely that it was 'something along those lines, what's going on here, what's happenin (sic).' In those circumstances, it is unlikely that the jury would have found that Michelle actually asserted that she 'knew' they were 'doing it'. This conclusion is reinforced by the fact that Michelle gave evidence that she could not recall making any such comment and did not give evidence that she saw or heard any sexual activity between the complainant and the applicant at any time.

60 As mentioned, no objection was taken to the evidence. No directions were sought by experienced defence counsel about it. The prosecutor did not rely on the previous representation in her closing address. All of these things support the view that the impugned evidence was likely to have been insignificant in the scheme of things. Consequently, there were no substantial and compelling reasons for the trial judge to give the directions for which the applicant now contends. In the absence of a request from trial counsel, the trial judge was prohibited by s 15 of the JD Act from giving the direction unless she considered that there were substantial and compelling reasons for doing so. I would add, for the sake of completeness, that trial counsel may well have thought that directions about the evidence of Michelle's previous representation would unhelpfully elevate the evidence in the jurors' minds.

61 I am not satisfied that the admission of the impugned evidence resulted in a substantial miscarriage of justice.

62 Turning to the evidence of Robert's previous representation ('I knew something had been going on for a while'), the foundation of the assertion was also a matter of pure speculation. No evidence was adduced that Robert had previously seen or heard something which could provide a proper foundation for the asserted 'knowledge.' The evidence fails the rationality test in the Evidence Act's definition of relevance.

63 But the evidence of Robert's previous representation was a vague statement which did not specify any particular misconduct, let alone the charged conduct. Whilst the prosecutor cross examined Robert about it, and mentioned it in passing in her closing address, it was not given prominence by the prosecutor. The fact that experienced defence counsel did not ask for directions about the evidence is explicable as a reasonable forensic decision. If the trial judge had given directions about it, that may well have elevated its significance in the jurors' minds. There were no substantial and compelling reasons for the trial judge to give the directions for which the applicant now contends.

64 I am not satisfied that the admission of the evidence resulted in a substantial miscarriage of justice.

The trial miscarried due to the prosecutor introducing the [applicant's] Hepatitis C infection and liver damage at a late stage of the trial in circumstances where the prosecution had been on notice that the source of her infection and disease was not related to intravenous drug use or alcohol abuse.

66 It was during the cross examination of the applicant's character witness, WK, that the prosecutor introduced the impugned evidence:

[So] you've been good friends with her, you would have known that she's had Hep C and liver problems? ---Yes.

67 Trial counsel immediately objected and the jury were sent out. Trial counsel was concerned that the jury might wrongly infer that the applicant had contracted these health problems as a result of illicit drug use and alcohol consumption. The applicant had given evidence that she did not drink or use illicit drugs. Leave was given for trial counsel to recall the applicant to explain that she contracted Hepatitis C through being bitten by a resident at her workplace and that the Hepatitis C led to the liver problems. Her evidence in that regard was not disputed.

68 The applicant submitted that trial counsel made a high risk forensic decision to adduce evidence during cross examination of the complainant of the complainant's allegation that the applicant introduced him to intravenous drug use.[29] The basis for this decision was, from the defence perspective, the implausibility of the allegation. The introduction of evidence that the applicant had Hepatitis C and liver disease falsely suggested that the applicant may have been an intravenous drug user. The introduction of this evidence was also unfair because the prosecutor knew the applicant had contracted the diseases through someone biting her. The recalling of the applicant to give unchallenged evidence as to how she contracted Hepatitis C would not have undone the damage of the prosecutor adducing the evidence.

69 In written submissions, the respondent submitted that the prosecutor questioned WK about whether she knew the applicant had Hepatitis C and liver disease by way of testing how close WK was to the applicant, whom she claimed to know very well. The applicant was subsequently recalled and evidence was adduced from her, and not disputed, that she contracted Hepatitis C when she was bitten by a resident at her workplace, which cured any unfair prejudice to the applicant. The fact that the applicant had Hepatitis C was not raised by the prosecutor in her closing address. Defence counsel raised the matter in her closing address, saying it carried with it a connotation which was false. The only reason that the introduction of the evidence of Hepatitis C carried any connotation was because defence counsel had adduced evidence of the complainant's allegation that the applicant introduced him to intravenous drug use.

70 In oral submissions, the respondent's counsel, who did not draft the written case, said he could not identify a legitimate forensic purpose for the prosecutor having introduced the topic of the applicant's Hepatitis C and that the prosecutor was aware when she did so of the manner in which the applicant had contracted the disease. But, he submitted, any unfair prejudice was cured by the unchallenged evidence that was given by the applicant when she was recalled.

71 The respondent's oral submissions should be accepted. Any negative connotation from the introduction of the evidence that the applicant had Hepatitis C was dealt with appropriately by the recall of the applicant who gave a clear and convincing account of how she contracted Hepatitis C and developed liver problems. It would have been conspicuous to the jury that no challenge was made by the prosecutor to that account. Defence counsel did not make any request for directions about the issue, which confirms that the issue was put to rest and could not have caused the trial to miscarry.

72 Proposed Ground 5 asserts that the guilty verdicts were 'unreasonable or cannot be supported having regard to the evidence'.

73 I have already mentioned some of the evidence given by certain witnesses for the prosecution, namely the complainant, his mother Cathy and his sister Michelle. I will not repeat that evidence although, in discussing proposed Ground 5, I will mention some further evidence given by those witnesses by way of background to the submissions and my analysis. I will also briefly refer to some evidence given by the other witnesses called by the prosecution, namely, two childhood friends of the complainant, JC and JG, and the Informant.

74 The complainant said that the applicant always favoured him over his sisters. She was constantly holding his hand and would make his sisters move so that the complainant could sit next to her. On the day the applicant married the complainant's father, the applicant told him, just before she was about to enter the church, that she should have been marrying him and that they were soul mates. He was standing with his sisters at the time but they did not hear what the applicant said to him. In cross examination there was the following exchange:

I suggest to you that [Leona] never said anything like that she was wanting to be married to you on that day? What do you say to that?---You weren't there, so how would you know?

Well, I'm putting it to you that - - -?---And I put it back to you that no, I'm adamant that that what was said to me.

I never said to you - - -?---It's burned into my brain as a child. I didn't even know what soul mate was, yeah.

Yes?---It confused me. Why you getting married to my dad then?

75 The complainant gave evidence that he had had a drug problem from a young age, that it had had been 'a huge issue' for him and he agreed that his drug problem was out of control by the 1990s. He said he was introduced to intravenous drug use by the applicant. He agreed that, when he was minding his father's home at one time, he had virtually cleared out the belongings to fund his drug habit. He had seen a counsellor and had spent time in a psychiatric unit. He had flashbacks about being sexually abused by his former male school principal - and believed that his own mother might have facilitated that abuse by driving him to the school principal's place - but he was not sure whether the flashbacks were real. Defence counsel put to the complainant that, when he talked to his counsellor about flashbacks, and his uncertainty regarding those flashbacks, he was speaking about flashbacks concerning sexual abuse by both the applicant and the school principal:

I suggest that what you're talking about there was both in relation to the school principal and in relation to [Leona]?---No, not ever. Anything I ever referred to in flashback or um, things like that are nothing to do with [Leona]. That is more clear in my mind than ever.

76 The complainant said he spoke to two of his friends JC and JG about his sexual relationship with the applicant. He was about 17 or 18 when he told JC. They were in JC's bedroom talking about JC's relationship with an older woman and he, the complainant, blurted out that his step-mum could hardly stop ripping his clothes off when she saw him and that they had been having sex for a while. He said JC asked if he could fuck her too and accused him of being gay when he said he really did not want to be in a sexual relationship with her. As for JG, he said JG once saw the applicant kissing him with an open mouth after a football match and said to him something like 'I know you are fuckin her' or 'I know youse are doin it'.

77 The complainant's mother Cathy gave evidence that in 2012, when the complainant went to the police about the sexual abuse by the applicant, he was also alleging that he had been sexually abused by his former school principal and was accusing Cathy of having facilitated that abuse. He wanted her to speak to the police about it. She spoke to the police who advised her to take out an intervention order against the complainant, which she did.

78 The complainant's sister Michelle gave evidence that the applicant used to favour the complainant over her and her sister. She said:

Like if we were in the lounge room, they'd be sitting on the couch and maybe giggling and talking and it was like we were always left out of whatever they were talking about and it always made me extremely jealous. So, I do remember these occasions um and I used to think to myself, you know, she favours him so much and yeah. It used to make me feel very jealous.

79 She remembered an occasion when the applicant gave her money to go and buy fish and chips with her sister and that, upon their return, the front door was locked and that it took longer than it should have for someone to answer the door.

80 JC gave evidence that he was best friends with the complainant throughout the period of the alleged offending. He recalled the complainant telling him about sleeping with the applicant:

Now, do you recall having any conversation with [David] concerning his step-mother?---Just the one time. Um, we were in - at, I remember, it must have been his father's garage ... it was just the two of us in his garage and he said to me, 'I've slept with my step-mother.' And from that whole conversation, that's really all I could remember because it was so shocking and unexpected, and even the tone that he used was so different to anything that, you know, he'd used around me before anyway.

So, what sort of tone was it, please,...?---Um, a shocked tone. It was almost like he was, um, you know, coming out to me with a secret.

JC said that when the complainant told him this, he definitely did not ask whether he could fuck her too. He was asked about their ages when they had this conversation:

And in terms of the conversation, if I suggested to you that in your statement you actually said, look I reckon it was when I was around 14 or 15 that we had this conversation, would that be right?---Um I wouldn't argue with it.

And if I said to you that it certainly wasn't when you were 18 or thereabouts, it was certainly earlier than that wasn't it?---By my memory but as I said it's 28 years ago and I wouldn't be shocked to find out that, that was correct.

81 JG gave evidence that the complainant may have told him about sexual abuse but he could not recall as he was going through a difficult stage at that time with his father's bankruptcy, a car accident and his sister's death. Under cross examination, he said he did not recall saying to the complainant 'Oh youse two are fucking' or 'Youse two are doing it', as had been alleged by the complainant. If he had said that, he would have remembered it.

82 The Informant gave evidence that in 2013, when the applicant attended on police by appointment, Robert accompanied her. He did not make a formal statement. Defence counsel adduced evidence from the Informant that Robert spoke to police about the couch incident and that the police made notes of the conversation.

83 Defence counsel adduced the following evidence about that conversation:

And when you spoke with Mr [Ritchie], he was responsive in that he spoke to you about what he knew about - or what he - he was responsive, he gave you a version of events, didn't he?---He gave an account of the incident where he did, um, catch them on the couch and his reactions to that, and he gave brief circumstances as to what happened directly after that.

...

So he told you that - and you'd asked him, 'Wife and [David] something going on?' So I assume that that was a question he was asked?---Um, I believe he - it was his thought that he believed that something was going on, he woke up in the middle of the night, suffers clinical - - -

Sorry, if you just stop there. So, if you just say woke up in the middle of the night and then when - sorry, well, 'Suffers clinical depression,' did he clarify who suffers clinical depression?---No, was - sorry, and I can't read that word, 'Woke up and went to the toilet.' Sorry, do you want me to - I don't know if you want me to read further.

If I put it to you. So, 'Woke up and went to the toilet,' is that right?---Yep.

'Don't remember dates'?---Yep.

'I was drinking'?---Yep.

'Went to toilet past lounge'?---Yep.

'Lounge light on, walked in'?---Yep.

'Didn't see anything'?---Yep.

'At time led to conclusion there was kissing and cuddling'?

---Yes.

'Blanket over them'?---Yes.

'[David's] mother and I used to kiss and cuddle under blanket'?

---Yep.

'I concluded from that - - - '?---After rant and rave.

'And then after rant and rave, they tried to protest, I think [David] or [D] left'?---Yes.

'Rant and rave, [Leona] left I think following day for a few days, [Leona] - not we - no discussion'?---No discussion, she denied.

'Because I didn't see anything - have to believe you' is what he said?---Yep.

'Never spoke to [David] about it again'?---Yes.

And then that's all there was in relation to that incident involving the couch, is that correct?---Yes.

84 The Informant also gave evidence that the applicant had no prior convictions.

85 Turning to the witnesses called by the defence, there was the applicant, her husband Robert and a character witness WK. I have already referred to some of the evidence given by the applicant and her husband.

86 The applicant denied telling the complainant on her wedding day that she should have been marrying him and that he was her soul mate. She denied ever sexually abusing him. She said that at the time she was alleged to have committed the offences the subject of charges 1 to 4, which according to the complainant was around the time that Robert purchased a new red Barina, she was on crutches. Medical records supporting that claim were tendered. She denied ever drinking alcohol or using illicit drugs or introducing the complainant to intravenous drugs, as he had alleged.

87 Robert gave evidence that he had never known the applicant to use illicit drugs. In relation to the couch incident, Robert said he did not recall seeing any Ventolin on the coffee table but, under cross examination, he said the applicant told him at the time that the complainant had had an asthma attack:

So, how long after the ranting and the raving where you were called stupid did she leave?---How long after? I have no idea. It was quickly, though.

But she was doing something that was lovely on the couch, wasn't she? Why would she have left?---Because I was ranting and raving, as you said.

She never mentioned that, 'I was trying to save your son,' did she?---She never used the word save, no.

She never said, 'Listen, you, I've been doing you a big favour because this poor kid has just had an asthma attack,' did she?---She said he had an asthma attack, yes she did. Yes she did. I cannot remember the specific words to whether or not she said, 'I've been saving, I've been doing what,' but I do know that she said he's been having - he's having an asthma attack, we might have to take him - - -

88 WK gave evidence that she had known the applicant for 30 years and that she was a caring and honest person who did not use illicit drugs.

89 In written submissions, the applicant relied on the following matters:

• the implausibility of various allegations made by the complainant, including that the applicant began grooming him when he was 10, confessed her feelings for him on the day she married Robert and introduced him to intravenous drug use at the age of 11 or 12;
• the implausibility of the applicant offending in circumstances where there was a high risk of detection;
• evidence casting doubt on the complainant's credibility, including evidence of the complainants dishonesty (eg, stealing a large amount of property from his father's house when he was looking after the house);
• evidence casting doubt on the complainant's reliability, including evidence about his lengthy history of drug abuse, his mental health issues, his time spent in a psychiatric hospital in 2012 not long after he went to the police about the alleged abuse, his flashbacks that he may have been sexually abused by his school principal and that his own mother was complicit in that offending, his disclosure to a counsellor that he was confused as to whether his flashbacks were real or a dream, a lack of detail in his allegations, objective evidence contradicting his account (particularly in relation to charges 1 to 4 where there was medical evidence that the applicant was on crutches at the time) and the delay of around 30 years between the alleged offences and the trial;
• The fact that the complainant was the subject of an 'unreliable evidence warning';
• The forensic disadvantages due to delay;
• The applicant's sworn denials and the evidence of her good character.

90 The applicant further submitted that support for the complainant's allegations was minimal. The couch incident occurred between 1 and 3 years after the alleged offences. The evidence of the complainant's sister only provided weak support for Charge 10. The complaint evidence of the complainant's childhood friend JC was inconsistent with the complainant's evidence of complaint with respect to their ages when the complaint was made and the circumstances of the complaint.

91 In oral submissions, the applicant added that the complainant had a motive to lie about his father's wife because of his falling out with his father over the couch incident (his father sided with his wife, not him) and the fact that his father reported the theft of property from his home when the complainant had been housesitting it: the complainant was prosecuted for the thefts and went to prison for 12 months.

92 In written submissions, the respondent submitted that the guilty verdicts were open to the jury. The complainant's accounts of the offences which were found proven were clear, detailed and consistent, refuting the defence assertion that he was an unreliable historian. The complainant may have been uncertain as to whether he had been sexually abused by his former school principal - and about his mother facilitating that abuse - but he was certain about having been abused by the applicant. In her closing address, defence counsel conceded that something happened during the couch incident ('Now the couch, the couch incident, all right, well obviously something took place, obviously')[30] and the complainant's account of that incident was supported by undisputed evidence that Robert told Cathy on the phone and in person that he had caught the applicant and the complainant in a 'compromising position.' The applicant's claim that she had been giving the complainant Ventolin, which she placed on the coffee table, was unsupported; Robert gave evidence that he did not recollect seeing any Ventolin on the table. While there were inconsistencies between the complainant and JC regarding the evidence of complaint, the making of the complaint was what mattered. The jury were discriminating; they acquitted on some charges and convicted on others. It is not the case that the jury must have entertained a reasonable doubt on all counts.

93 In oral submissions, the respondent said the complainant was extensively cross examined but maintained that the applicant committed the offences. The jury had the considerable advantage of seeing the complainant give his evidence. The jury gave the applicant the benefit of the doubt where there was some objective evidence that raised a doubt, for example, in relation to Charges 1 to 4. The jury also gave her the benefit of doubt where there was variation between the way the case had been opened by the prosecutor and the way the evidence panned out (Charges 8 and 11).

94 In R v Klamo[31] Maxwell P, with whom Vincent JA agreed, said:

The approach required of appellate courts in considering the 'unsafe and unsatisfactory' ground involves the following steps:

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

A guilty verdict can only be said to have been 'reasonably open' to the jury if there was no aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion. In Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the 'unsafe and unsatisfactory' ground:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

In other words, the question posed in M v The Queen, namely:

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?

requires the court of criminal appeal to decide:

... whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt' or whether, instead, the 'path to a conviction was open'.[32]

95 In R v Bayden-Clay,[33] the High Court said:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'[34]

96 Applying these principles to the present case, I was not persuaded that the jury must have entertained a reasonable doubt regarding charges 5, 6, 7 and 10. Contrary to the applicant's submissions, the complainant's account of those offences was quite detailed, and it was plausible. The complainant acknowledged his drug history, mental health issues and uncertainties regarding sexual abuse by his former school principal but did not waiver in relation to his account of the proven offences. Having regard to the matters raised by the applicant, both individually and in combination, a jury might have entertained a reasonable doubt on all charges but it was not obliged to do so.

[1] To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms throughout.

[2] I identify, and deal with, each of the five proposed grounds of appeal below.

[3] In the applicant's written case, it was not specified what this limiting direction should have been.

[4] Mark Weinberg 'The Criminal Law - A "Mildly Vituperative" Critique' [2011] MelbULawRw 39; (2011) 35(3) Melbourne University Law Review 1177, 1193.

[5] [2010] NSWCCA 197 [38]-[39].

[6] [2013] NSWCCA 190 [22].

[7] [2011] VSCA 347; (2011) 33 VR 406.

[9] [2017] HCA 20; (2017) 344 ALR 187, 197 [32].

[10] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492.

[11] See R v Gretch [1997] 2 VR 609, 614.

[12] Evidence Act 2008 s 97(1)(a).

[13] Evidence Act 2008 s 97(2).

[14] [2012] HCA 59; (2012) 246 CLR 469 ('Baini').

[15] [2013] VSCA 25; (2013) 38 VR 659.

[17] [2005] HCA 81; (2005) 224 CLR 300.

[18] Baini [2012] HCA 59; (2012) 246 CLR 469, 478 [20].

[27] Ibid (emphasis in original) (citations omitted).

[28] Presumably because neither Michelle nor Robert confirmed the making of the previous representations attributed to them.

[29] In discussion with the trial judge, the prosecutor raised the complainant's allegation about the applicant introducing him to intravenous drug use and said she would not be adducing that evidence unless defence counsel opened up the issue in cross examination of the complainant.

[30] As mentioned, defence counsel went on to stress that the couch incident was not a 'charged act' and that only the complainant said the applicant's pants were down.

[31] [2008] VSCA 75; (2008) 18 VR 644.

[32] Ibid 653-4 [38]-[40] (citations omitted).

[33] [2016] HCA 35; (2016) 258 CLR 308.

[34] Ibid 329-30 [65]-[66] (citations omitted).