S W C v The Queen [2011] VSCA 264

Court of Appeal (Vic)|2011-09-13|Before: Hansen JA, Ashley JA

(Unreported, County Court of Victoria, Judge Chettle, 2 March 2010)

CRIMINAL LAW - Conviction - Sexual penetration of a child aged 16 or 17 under appellant's care, supervision or authority (Counts 1, 2 and 5 against niece) - Indecent act with child under 16 (Counts 3 and 4 against daughter) - Niece gave evidence of uncharged acts - Relevant to context - No objection by defence counsel who wanted evidence admitted to use in cross-examination of niece - Whether evidence received as tendency evidence - Whether judge required to direct jury of need to be satisfied beyond reasonable doubt of uncharged acts alleged by niece before relying on such acts in relation to counts 1, 2 and 5 - ; considered - Direction not required in the circumstances - Whether judge failed to tell jury it could not use niece's evidence of uncharged acts in relation to counts 3 and 4 - Appeal dismissed.

1 I agree with Hansen JA that this appeal against conviction should be dismissed. Respecting ground 1A, I have nothing to add to what his Honour has said. But I do wish to say something about ground 1.

2 This was an unsatisfactory case so far as the basis for admission of the evidence of complainant A with respect to uncharged acts was concerned. The case was also very unusual because of the use sought to be made of the uncharged acts evidence by the appellant. Each of those matters bears upon the disposition of ground 1.

3 The trial was relevantly governed by the provisions of the Evidence Act 2008 ('the Act'). In point were ss 97, 100 and 101 of that Act, not s 398A of the Crimes Act 1958.

4 No notice of intention to adduce evidence of uncharged acts as tendency evidence was given under s 97(1)(a) of the Act. In discussion with the judge, before the trial went into evidence, these things happened: (1) defence counsel told the judge that the uncharged acts[1] would 'come to the fore', if not in examination in chief of the complainant A, then in her cross-examination; (2) the prosecutor, acknowledging that no notices had been given, stated that the evidence was sought to be led as tendency evidence; (3) defence counsel stated that he had no objection to the judge 'abridging the requirement for notice'; (4) the judge stated, in effect, his understanding that the Crown was intending to put the evidence as going to 'context', and said that he would give a 'context only' direction; (5) the judge said -

...well I've (sic) give you leave - although you haven't served notice - leave is granted for up to that (indistinct) evidence to be led. Indeed it's requested by [counsel for the appellant].

He added that he would 'give the appropriate directions at the appropriate time'.

5 The burden of the remarks last cited suggests that the grant of leave probably related to the use of the evidence as tendency evidence. But that is not wholly clear.

6 If the judge did 'grant leave' to the Crown to adduce the evidence as tendency evidence, then in my opinion it is at least doubtful that he should have done so. That is because, in my view, evidence which was to be relied upon by the Crown only to provide 'context' would not satisfy s 97(1) of the Act.

7 Assuming that the grant of leave was nonetheless so intended, a question arises whether the judge in substance gave the Crown an opportunity to late deliver notice. If he did, the Crown did not take up the opportunity. But if his Honour meant to give a direction under s 100(1) of the Act which dispensed with the requirement to give notice, then in terms he did not do so - either then, or subsequently. Neither did he give overt consideration to the issue of probative value under either s 97(1)(b) or s 101(2) - presumably because of the clear statement by defence counsel that the evidence would get in, come what may.

8 But if, improbably, the grant of leave was intended to permit the Crown to adduce the uncharged acts evidence not in proof of tendency, but only as providing 'context' - which assumes that it is possible to quarantine, in reality as well as in theory, the concepts of context, relationship, and sexual interest in respect of evidence of uncharged sexual acts - then the evidence had to satisfy the threshold test of admissibility set by s 56 of the Act.[2] There was no such examination by counsel or the judge - again, no doubt, because defence counsel was insistent that the evidence would be got in, one way or another. Further, if the evidence was admitted for another purpose, it was not admissible in proof of tendency; and could not be used to prove that matter: see s 95 of the Act.

9 I turn now to the course of the pertinent evidence. The prosecutor led little evidence from A with respect to uncharged acts. Defence counsel, on the other hand, sought to highlight the particular evidence as a springboard for showing that A lacked all credibility, and should not be believed in her evidence concerning the charged acts. The particular cross-examination dovetailed with circumstantial evidence which cast doubt, it was claimed, on A's account that intercourse had taken place on a large number of occasions over a relatively short period. That evidence addressed the extent to which the appellant's late wife had been in the family home during the period when, according to A, the appellant often had intercourse with her; and the question who else had been in the home during that period.

10 The judge was very alive to the issue. In his charge, he said -

This is a comment of mine: you might think that this was a pretty traumatic time for everybody, when you have got the situation of a woman dying of cancer. When you look at the evidence of all of the witnesses in this case, there are great conflicts about who was where at a given stage.

It may be because people are lying. The defence suggests that A has got to be lying, and she was not there at all. [The prosecutor] says that the defence are gilding the lily to try and take away any opportunity so they can say it could not have happened. But if you look at the evidence of the witnesses who did come, there are, you might think, remarkable contradictions in who was there at what time.

11 I should next mention counsel's final addresses - which, apparently, were not transcribed. The judge's charge implied that the prosecutor said nothing about the uncharged acts issue in his address. His summary of the address by defence counsel reveals the attack which was there made on A's credibility:

Now, [defence counsel] said that the hospital records show you when the appellant's wife was in hospital and when she was home, and it A's version just cannot be true, there just was not enough time for the offences that, she says, 28 separate occasions, or 27 in that house at that relevant time, to have taken place.

He said that there are seven pillars to A's evidence, and he said they all crumble. If one of them falls down, her evidence crumbles; but he says they all do. The seven pillars were that: whether she had any reason to be over there frequently; whether the appellant's wife was home at the time; whether [the appellant] always came home late; whether between late December and 7 February there was any opportunity for 27 sexual penetrations; why did she keep going back; her lack of self protection; why did she tell her mother, there is no sensible explanation for telling Mum that she was assaulted by [another person]; and there is no satisfactory explanation about her failure to complain until 2004 when she made her statement to the police.

12 Hansen JA has set out the relevant passages from the judge's directions concerning the uncharged acts. In terms, the judge confined the permissible use of those acts to 'context'. He used other language also when describing the use to which the evidence could be put. Whether or not all of it achieved its purpose, I think it is clear that the language was intended to be explicative of 'context': that the charged acts were not 'isolated examples', that they demonstrated 'relationship', 'an ongoing practice', that they set a 'background ... of extensive sexual contact over a period of time', and gave 'context to the totality of the relationship'.

13 Counsel for the appellant submitted in this Court that -

(1) The judge's directions created a real risk that the jury would use the evidence as indicative of the appellant having a strong sexual interest in A, thereby increasing the probability that he had offended in the manner and on the occasions alleged in the counts. That risk was underlined by the alleged frequency and proximity in time of the uncharged acts to the conduct the subject of counts 1 and 2. In the circumstances, a beyond reasonable doubt instruction must have been given: R v Sadler.[3]

(2) The judge's directions, assuming that by intention they confined the permissible use of the uncharged acts evidence to 'context', did not sufficiently explain what was meant by that word.

(3) A propensity warning given by the judge might have been understood as referring only to evidence given by the appellant's brother. The particular evidence, I interpolate, permitted an inference that the appellant had showered with his daughter soon after his wife's death.

(4) The judge's general instructions with respect to the drawing of inferences adverse to the accused did not remedy the problem. In a way, counsel argued, the instructions had been confined so as to implicitly exclude reference to the uncharged acts.

14 This appeal is governed by Division 1 of Part 6.3 of the Criminal Procedure Act 2009. It is for the appellant to satisfy the Court that a substantial miscarriage of justice occurred. For the following reasons, I am not so satisfied:

(1) Sadler was a case of propensity evidence admitted under s 398A of the Crimes Act 1958. HML v The Queen,[4] much discussed in Sadler, concerned the admissibility of propensity evidence in a common law jurisdiction (when Pfennig v The Queen[5] would have application); and the directions which should be given if such evidence was admitted. Neither Sadler nor HML had any direct application if, in the present case, the uncharged acts evidence was not received as tendency evidence under s 97 of the Act;[6] or if the evidence should not be regarded as having been so admitted, despite the judge's intention, because late notice was not given nor a required direction given.

(2) If the evidence was received for a non-tendency purpose, then it had the status of any other circumstantial evidence in the case. In those circumstances, in my opinion, the uncharged acts did not have to be proved to the criminal standard. Even on the most favourable view for the appellant, the evidence was not an indispensable link in a chain of reasoning to an inference of guilt.

(3) Further, if the evidence was received for a non-tendency purpose, then the judge had to give anti-propensity and anti-substitution warnings. Despite the appellant's criticism of what the judge said in respect of those matters, I agree with Hansen JA that the jury would have understood that the warnings which his Honour gave extended to the uncharged acts evidence.

(4) In the event, if the evidence was not received as tendency evidence, in my opinion there was no fault in the directions given.

(5) But let it be assumed that the evidence was properly admitted as tendency evidence. The judge directed the jury that it was relevant only to establish 'context'. Subject to there being some defect in the way that he explained that term, the charge itself should have carried no risk that the jury might think that it was permissible to reason that the evidence showed that the appellant had a (strong) sexual interest in A, this leading on to a finding of guilt on charged acts.

I allow that the judge, in attempting to explain 'context', used a few words which hinted at it being permissible for the jury to use the uncharged acts evidence as disclosing that the appellant had a sexual interest in A. But I am not persuaded that those few words in the charge, themselves somewhat opaque, created any real risk that the jury was diverted from the use to which the judge repeatedly told the jury it could put the evidence of uncharged acts. That is particularly so when it is borne in mind that the jurors were lay persons, not appellate counsel or judges.

(6) Maintaining the assumption that the uncharged acts evidence was received as tendency evidence, it is the fact, as I have already noted, that appellant's counsel highlighted the uncharged acts evidence in the course of attacking A's credibility. It is obvious that the course was forensically necessary. It might well have led to an acquittal - although acquittal was not mandated. But it created a big danger. It must have had the effect of emphasising the virtues of the particular evidence in the event that the jury rejected the credibility attack. That circumstance, together with the alleged frequency of the uncharged acts, and the temporal proximity between those acts and the charged acts, made it necessary for the judge to give a strong direction as to the permitted and prohibited uses of the evidence. For otherwise, in my opinion, there was a real risk (if the jury rejected the credibility attack) that the jury would conclude that the uncharged acts showed that the appellant had a sexual interest in A. The risk would follow that the jury would use that conclusion as a pathway to a finding of guilt. In that event, a beyond reasonable doubt direction should have been given.

The judge did give a strong direction. The criticisms which appellant's counsel made of it were not, I have concluded, of substance.

(7) Given the content of the charge, and what has been said by courts as to the assumption that a jury will act in accordance with instructions,[7] I do not agree, there being no active misdirection in the judge's description of the permitted use of the uncharged acts evidence, that his Honour was nonetheless obliged to direct the jury that it could not put the evidence to a different use unless satisfied of its reliability beyond reasonable doubt. Although, assuming that the evidence was received as tendency evidence, it was for the judge to consider whether there was a real risk that the jury would use the evidence in that different way, the fact that neither trial counsel took exception to the charge is not unimportant in considering whether there was such a risk. It should not be postulated that this Court's decision in Sadler was unknown to counsel.

In attaching significance to the fact that no exception was taken to the charge, I recognise that defence counsel may have refrained from taking such a course simply for a forensically explicable reason. Thus, in the passage in his charge cited by Hansen JA, the judge not only (almost entirely) confined the permissible use of the uncharged acts to context, but also interpolated the use which defence counsel sought to make of the evidence. The last thing that defence counsel would have wanted was a further direction that the jury was not to use the uncharged acts evidence as evidence of his client's sexual interest in A. Such a direction would have introduced a new way of looking at the evidence, which the juxtaposition of the competing arguments in the charge had in substance excluded.

Because there is an alternative explanation for defence counsel not having taken an exception, I have attached less weight to his omission to do so than would otherwise be the case.

15 In all, I consider that the better view is that the uncharged acts evidence, given the purpose for which the Crown relied upon it, was not tendency evidence at all, for which reason Sadler was not directly in point. I also consider that, whether or not the evidence was received as tendency evidence, a beyond reasonable doubt direction was not required. The challenge to the correctness of Sadler need not be considered.

16 Following a trial[8] in the County Court, on 2 March 2010 the appellant was convicted by a jury of three counts of sexual penetration of a child aged 16 or 17 under his care, supervision or authority, being his niece A (counts 1, 2 and 5), and two counts of committing an indecent act with a child under 16, being his daughter B (counts 3 and 4).

17 The appellant appeals against his convictions on counts 1, 2 and 5 on the basis that the judge erred in his directions to the jury as to the permissible use of A's evidence of uncharged sexual acts committed by the appellant (ground 1).

18 The appellant appeals against his convictions on counts 3 and 4 on the basis that the judge failed to direct the jury that it could not use A's evidence of uncharged sexual acts as evidence in support of the Crown case concerning the complainant B (ground 1A).

19 The trial was conducted on the basis that the evidence of each complainant was not cross-admissible.

20 The offending was alleged to have occurred between December 2001 and January 2003, when the appellant was aged 36 to 37. A was aged 16 at the time of the incidents the subject of counts 1 and 2, and was aged 17 at the time of the incident in count 5. B was aged 13 at the time of the incidents in counts 3 and 4.

21 The appellant lived with his wife and three children (including B) on a rural property owned by the appellant's parents, who also lived there in a separate dwelling. The appellant's brother and his wife also lived in a separate dwelling on the property with their three children (including A). The appellant's wife was diagnosed with cancer in 2001 and died on 7 February 2002.

22 Count 1 occurred between 1 December 2001 and 7 February 2002, that is before the appellant's wife died. A's evidence was that she stayed over regularly at the appellant's house in this period to assist her aunt (the appellant's wife) and cousins. During this period, A often slept in the matrimonial bed at her aunt's invitation, while her aunt slept in the lounge room on a sofa bed while she was ill. On one such occasion, when A was sleeping in the appellant's bed and her aunt was asleep in the lounge room, A was woken by the appellant touching her breasts. He penetrated her with his penis and ejaculated.

23 Count 2 occurred after count 1 but in the same period between 1 December 2001 and 7 February 2002. A's evidence was that she was at the appellant's house, sleeping in the lower bunk bed in her cousin's room, with her cousin on the top bunk. The appellant came into the room, hopped on top of A and penetrated her with his penis.

24 Count 5 occurred at the end of November or start of December 2002, after the appellant and his children had moved to a different location. A went to stay with them as she was soon to attend school in that location. A's evidence was that one evening, she went into the appellant's room. The appellant was in his underwear. He penetrated her vagina with his penis and it hurt. He was on top of her on the bed. He then left to check the dams or the irrigation channels, as it was raining.

25 Count 3 occurred in the week or so following the death of the appellant's wife. B gave evidence that one afternoon she had a shower with the appellant. While showering, the appellant fondled her breasts.

26 Count 4 occurred when the appellant and his children were living at a rented house some distance away, between March and May 2002. B stated that while watching television in the appellant's bedroom she fell asleep. She woke up early in the morning and the appellant was fondling her breasts.

27 In addition to each complainant's evidence as to the specific counts concerning her, there was evidence of uncharged acts as follows.

28 In evidence-in-chief, after describing the incidents in counts 1 and 2, A stated that apart from those incidents, 'it happened quite a few times'. Defence counsel cross-examined A about this matter at length, referring to her police statement where she said that the appellant had sex with her 28 times in total, and that she had counted. I interpolate that the 28 incidents comprised the incident in count 5, and 27 incidents (including counts 1 and 2) at the rural property between December 2001 and 7 February 2001. Of the 27 incidents at the rural property, 26 had occurred in the appellant's bed, the incident in count 2 being the only time it happened in another bed. A agreed in cross-examination that in nearly all of the 26 incidents in the appellant's bed, she was sleeping in the bed because her aunt told her that she could sleep there. Later in the night, the appellant would come in and have sex with her. She agreed with counsel that her aunt would have been in the house on those occasions. Counsel suggested that her aunt had actually been in hospital for much of this period, and thus could not have been at the house for more than a few days. Further, he suggested (and A denied) that A did not regularly stay over at the appellant's house at this time. Counsel also asked A why she continued sleeping in the appellant's bed night after night, if he was constantly coming into the room later in the night and raping her. A stated that she did not feel she had anywhere else to go and could not make a complaint in the circumstances. She denied counsel's suggestion that she was lying about these matters.

29 The other evidence of an uncharged act was given by the appellant's brother, to the effect that one day he walked into the appellant's house and heard two voices (that of the appellant and B) coming from the shower. He asked what they were doing and heard B say 'Hello uncle. Dad's washing my hair.' B was about 13 at the time. This incident was distinct from the incident the subject of count 3. The appellant said in evidence that his brother's evidence was a lie, and that he had stopped showering with B when she reached the age of seven.

30 A made a statement to the police in May 2004, and B did likewise in June 2004. The appellant was interviewed by the police in August 2004 and denied

30 all the allegations. At trial, the appellant called good character evidence from three witnesses, and gave evidence himself denying all of the allegations.

The learned trial judge erred in his directions to the jury concerning the use of evidence of uncharged acts, in particular:

(a) In failing to direct the jury that they had to be satisfied of the existence of uncharged acts of sexual intercourse to the standard of beyond reasonable doubt if they were to rely on these occurrences as part of the Crown's case.

(b) In failing to direct the jury adequately as to the permissible use they could and could not make of the uncharged acts of sexual intercourse, by explaining the relevance of this evidence as 'context' and 'relationship'.

1A. The learned trial judge erred because he failed to direct the jury that it could not use uncharged acts with respect to one complainant as evidence in support of the guilt of the appellant of offences concerning the other complainant.

32 As mentioned, this ground relates only to the offences committed against A.

33 The uncharged acts referred to in this ground are the 25 instances of sexual intercourse at the rural property alleged by A.

34 The starting point is to consider why A's evidence as to these uncharged acts was admitted and how it was sought to be used. The Crown did not seek to rely on the evidence as tendency evidence under the Evidence Act 2008. Nor was the evidence led to establish that the appellant had a sexual interest in the complainant. Rather, the evidence was adduced on the basis that it was relevant only to the context in which the acts forming the basis of the charged counts (1, 2 and 5) occurred. Defence counsel did not object to the evidence. Indeed, when the matter was raised in preliminary discussions, he told the judge that the evidence would 'come out regardless'. That was because counsel wanted the evidence before the jury in order to pursue the line of cross-examination described above. In effect, counsel sought to undermine A's credibility (and thereby the cogency of her evidence as to the charged counts) by suggesting that A had lied about the large number of uncharged sexual acts, indeed that by reference to other evidence suggesting that the appellant's wife was not at the property for much of the period in question, it was not possible that sexual acts had occurred as A alleged.

35 The judge told counsel that he would direct the jury that the evidence went to context only, and would give an anti-substitution warning. No objections were raised and the trial commenced.

36 It is unnecessary to refer to the course of the evidence, as the evidence as to uncharged acts was in short compass and is adequately set out above.

37 Closing addresses were not transcribed, but there was no suggestion on the appeal that the prosecutor invited the jury to use A's evidence to establish that the appellant had a sexual interest in A, thus making it more probable that he committed the charged offences in pursuance of that interest.

38 The judge directed the jury about the evidence of uncharged acts as follows:

But what you did hear in this case was evidence from A that there were other occasions on which the accused man had sex with her. You remember and, indeed, [defence counsel] embraced that, cross-examined about it at length and the evidence was that there were 28 in total, I think she said in one of her statements, and she said that is right.

Now, there is no such thing in our system of law as being a bad person, or an immoral person, or a sexual predator, or an enemy of the State as the Communists would have it. Our system of law works around the basis that every particular charge must be an identified particular occasion. Leave this case alone, but if a girl walked into the police station and said: my father always has sex with me. He has been having sex with me for two years. But I cannot tell you when, where or how. I cannot give you any precise details. It has happened so many times I cannot identify any. There would be no charges, you could not charge an individual offence because you cannot identify the individual occasion. That is the law.

So in this case you understand that A gives evidence of three defined occasions she was able to specifically recall and specifically say occurred. The first time it happened to her, once in the bunk room; and the last time it happened to her, when she was up at the orientation week at school. But in order to put that evidence in proper context, that they were not isolated examples, and to demonstrate what might be called 'relationship', that there was an ongoing practice against which these individual acts occurred, the Crown were able to lead that very short piece of evidence that was led in the course of her evidence when she said: he did it to me a lot of times; on other occasions, as well. That is where that was left.

[Defence counsel] amplified that and took you to what she said in her statement where she said: from the first to the last occasion, were a total of 28 different occasions of sexual penetration because she counted them. Now, [defence counsel] relied upon that to go to the improbability of what she says as being true, the more acts there were and the less time there was for them to have occurred, therefore, they did not happen, she is not telling the truth. You will understand the logic of the defence argument.

But there are some things I must tell you about what this uncharged-act evidence is. You can only use that for putting the acts in context. Whether or not the three occasions where she says she remembered, you can see them against a background of what she says was extensive sexual contact over a period of time.

Why is that relevant? Let us say, because the law requires specificity of an event. If someone came before you and said: look, I was living with my Uncle Charlie for 10 years, and on my 7th birthday he took me into the back of the shed and sexually penetrated me. You might think to yourself: well, gee, that is unlikely to have happened on one isolated occasion.

But if you were told: I was living with my Uncle Charlie for 10 years and he often sexually assaulted me throughout the course of the time, but the only one I can remember is my 8th birthday, when he took me out to the - specifically remembered. So it is the putting what we call context to the totality of the relationship at the time, and you can use it for that purpose and no other purpose whatsoever. You follow?

You cannot substitute evidence of improper behaviour on another occasion as proof of guilt. Now, it does not happen here, that is not likely in this case, because it is either what [defence counsel] is saying, it is all made up, the whole allegation of 28 penetrations did not happen, and you remember I said to you the Crown do not have to prove 28; the ones they are concerned with are the three on the presentment.

But this warning is particularly relevant, you might think, when you consider the evidence of [the appellant's brother]. If you accept [the appellant's brother's] evidence that he sprung, as it were, his brother and his niece in the shower together shortly after [the appellant's wife] died, you must not use that evidence in substitution of guilt for any other offence. It does not prove Count 3; it does not prove that on the occasion that B talks about that she was touched on the breasts. All it does is prove that it is relevant to prove the practice that was existing at the time.

I hope you realise that you can only convict the accused man on the evidence that relates to the counts on the presentment, and not any other evidence. You must not substitute the evidence of improper behaviour on another occasion for any evidence relating to a count, and you must not think ever that he is the sort of man who would commit the offence when you are considering that evidence. You should not allow it to lead you to the line of logic that says: well, I accept that he did it then, therefore, he is the sort of bloke who would touch his daughter up in the shower, therefore, I will convict him. That sort of logic is impermissible and you must not enter it. Again, I think I have said that to you now three times, and you will understand why. [emphasis added]

39 Defence counsel took no exception to these directions.

40 The appellant's counsel, who did not appear at the trial, contends that the judge's directions did not confine the jury to using A's evidence of uncharged acts to establish context, but rather created a real risk that the jury would use the evidence as reflecting a 'strong sexual interest' by the appellant in A, thereby increasing the probability that he had committed the charged acts. In developing this submission, counsel noted that the judge referred to the uncharged acts as being relevant to 'relationship' and an 'ongoing practice' in the context of which the charged acts occurred. Counsel also noted the extensive number of uncharged acts, and their proximity in time and place and similar nature to the charged acts, particularly those underlying counts 1 and 2. He submitted that the combination of these matters, and the judge's language, created the risk that the jury would use the evidence to establish that the appellant had a sexual interest in A. As such, the jury ought to have been directed of the need to be satisfied of the existence of the uncharged acts beyond reasonable doubt. Counsel relied particularly on the following passage from R v Sadler:[9]

Pending further guidance from the High Court, 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.

41 It was common ground that the judge did not tell the jury they had to be satisfied beyond reasonable doubt of A's evidence of uncharged acts. Indeed, the judge said earlier in his charge that 'you do not have to determine whether there were, for example, 28 separate acts of sexual penetration involving [A].' Later in the

41 charge, in the passage set out above, the judge reiterated that 'the Crown do not have to prove 28; the ones they are concerned with are the three on the presentment.'

42 Further, counsel submitted that while the judge's directions left it open to the jury to use the uncharged acts as establishing the appellant's sexual interest in A, the directions never spelt out precisely how the evidence of uncharged acts was to be used. If the evidence was not to be relied on to establish tendency reasoning, the jury ought to have been told not to use the evidence in that way.

43 Counsel for the respondent submitted that there was no real risk of the jury using the uncharged acts as an essential step in their reasoning process, nor as establishing the appellant's sexual interest in his niece, hence there was no need for a direction that the uncharged acts needed to be established beyond reasonable doubt. Counsel advanced 14 reasons (many of which overlap) why the directions now sought by the appellant were not required in the circumstances of the trial:

(1) The Crown relied on the evidence of uncharged acts only to provide context, and did not seek to use the evidence to establish any relevant tendency or sexual interest.

(2) The evidence was largely introduced by the defence for the legitimate forensic purpose of challenging A's credibility.

(3) The judge directed the jury that the evidence went to context and 'no other purpose whatsoever'. Counsel submitted that the effect of s 95 of the Evidence Act 2008 was that since the evidence had not been admitted for a tendency purpose under s 97, it could not have been used for such a purpose even if admitted for some other purpose. Further, the judge gave anti-substitution and propensity warnings.

(4) A's evidence as to uncharged acts was of a very general nature, not being directed to specific incidents not the subject of charges. Counsel referred to the statement by McHugh and Hayne JJ in Gipp v The Queen[10] (a case also concerning uncharged act evidence of a very general nature) that if the evidence in that case had been directed to specific incidents, the judge would have been entitled to direct the jury that they could use the evidence to establish a 'guilty passion' in support of the charged offences, and that in such event the judge would have needed to direct the jury that the uncharged acts had to be proved beyond reasonable doubt. Counsel submitted that in the present case, by contrast, the judge never alluded to 'guilty passion' or 'sexual interest' or 'tendency' in terms or by implication.

(5) The judge gave a strong direction that the evidence was not to be used other than to provide context.

(6) The judge gave a strong separate counts direction.

(7) The judge gave an anti-substitution direction.

(8) The judge gave a propensity direction. Read in context, that direction related to all uncharged acts and all counts.

(9) It is generally to be assumed that a jury follows the judge's directions.

(10) The direction now sought by the appellant would have suggested a process of reasoning not used in the trial, and thereby undermined the forensic advantage defence counsel sought to achieve by cross-examining A on the evidence.

(11) Nobody at the trial, including the judge, saw the need for the direction now sought. Given that Sadler had been decided some 18 months earlier, it can be assumed that counsel and the judge were aware of it.

(12) The appellant's submission thus assumes an extraordinary oversight by experienced defence counsel.

(13) As the alleged direction was a prudential direction, the need to give it depended on the purpose for which the evidence was introduced and used in the trial. In this regard, counsel referred to R v AJS[11] for the proposition that the directions required depend on the issues raised and the conduct of the particular trial.

(14) Where the judge and experienced counsel have not seen the need for the direction now sought, the Court ought be slow to infer that a miscarriage of justice has occurred.

44 In the alternative, counsel submitted that even if A's evidence made it more likely that a charged act occurred, the evidence fell short of being essential to the jury's reasoning process. In effect, the evidence was not an 'indispensable link' in the chain of reasoning such as would require proof beyond reasonable doubt.

45 Further, counsel submitted that the above statement in Sadler was wrong in law:

(a) to the extent that it is said to stand for the proposition, stated in R v Osborne,[12] that 'when a jury is directed as to the use that they can make of uncharged acts, they must be told that they should not act upon such evidence unless satisfied beyond reasonable doubt that those acts occurred'; and

(b) to the extent that it stands for the proposition that where there is 'a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step [as opposed to an indispensable link] in their process of reasoning to guilt ... 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.'

46 In inviting the Court to consider the correctness of Sadler, counsel contended, in essence, that the statements of principle in Sadler were the result of an incorrect interpretation of the decision of the High Court in HML v The Queen,[13] indeed that such an interpretation was inconsistent with the High Court's decisions in Shepherd v The Queen,[14] R v Gipp,[15] and R v Roach.[16] He also referred to several decisions of interstate appellate courts.

47 Finally, counsel submitted that even if the judge erred as alleged, the proviso ought be applied.

48 The first thing to note is that in Sadler, the appeal was allowed and a re-trial ordered on the ground that the trial judge erred by preventing defence counsel from cross-examining the complainant about her drug addiction. Nevertheless, the Court went on to consider a ground of appeal which raised the question of the appropriate direction as to the standard of proof for uncharged acts. On the facts of the case, given that the uncharged acts were virtually all acts of violence rather than non-consensual sex (in a case where consent was in issue), and the jury was not likely to have used the evidence as an essential step in its reasoning process, the Court concluded that it was neither necessary nor desirable for the judge to direct the jury that it had to be satisfied beyond reasonable doubt that the uncharged acts had occurred. In the result, the ground of appeal failed. It follows that the passages in Sadler relied on by the appellant were obiter.

49 Assuming, however, the correctness of those passages, it is to be noted that the statement in Sadler at [65] is not cast in absolute terms. The use of the word ordinarily makes that plain.

50 The real question is whether, given the conduct of the present case, the judge was bound to assume that there was 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.'

51 In my view, there are several reasons why the judge was correct not to make such an assumption.

52 The Crown relied on A's evidence of uncharged acts solely to provide context. The Crown did not seek to use the evidence to establish any relevant tendency or sexual interest on the part of the appellant. And while there may often be a fine line between 'context' on the one hand, and 'propensity' on the other, leading to a risk that context evidence may be impermissibly used for propensity reasoning (as observed in HML and Sadler), I am not persuaded that such a risk existed in the present case.

53 It is significant that the evidence was effectively led at the request of the defence for the purpose of challenging A's credibility. That explains why the evidence was led in such a non-specific way. The evidence was inherently vague and incapable of bolstering A's evidence as to the charged counts. Indeed, it can be said that the evidence was of very limited value even to establish context.

54 In this regard, the judge directed the jury that they could use the evidence to put 'what we call context to the totality of the relationship at the time, and you can use it for that purpose and no other purpose whatsoever.' The judge also described the relevance of the evidence as being to put the charged acts in their 'proper context', 'that they were not isolated examples', and 'to demonstrate what might be called 'relationship', and that there was an 'ongoing practice against which these individual acts occurred'. Further, the judge gave the analogy of a child complaining about a sexual assault by his uncle, where it might be thought unlikely to have happened on an isolated occasion, whereas if he said that there had been ongoing sexual assaults, his account of a single charged occasion would be placed in its proper context. The judge also gave the anti-substitution and propensity directions contained in the parts of the charge set out above, in addition to an earlier separate consideration direction.

55 As to the propensity direction, I do not accept the appellant's contention that the judge's emphasis on the uncharged acts in the shower created the risk that the jury would regard the propensity direction as not applying to A's evidence. It is true that the judge effectively told the jury that A's evidence was not particularly relevant to the Crown case, in circumstances where the defence alleged that the evidence was untrue, and the Crown sought only to prove the three charged counts against A rather than the 28 acts. In that sense, it can be seen that the propensity direction was more relevant to the shower incident than A's evidence. But that is because the manner in which the case was conducted, and the judge's directions overall, made it clear that A's evidence was only to be used to establish context. The jury would have understood that they were not entitled to reason that if the appellant had committed any of the uncharged acts against A, he was more likely to have committed the charged acts. Further, on its terms, the propensity direction related to all uncharged acts and all counts.

56 Further, although it is not determinative, in the circumstances of the present case the fact that defence counsel did not object to the judge's directions is a strong indication that there was no real risk that the jury would engage in the type of propensity reasoning cautioned against in Sadler. Indeed, it may be asked rhetorically how the judge could have directed in the way now contended for by the appellant without effectively inviting the jury to engage in the very type of propensity reasoning sought to be avoided. In circumstances where the Crown had not invited the jury to engage in such reasoning, and it was plain that the real relevance of the evidence was to the defence's attack on A's credit, the directions now sought would have been inappropriate as potentially expanding the Crown case unfavourably to the appellant. In this regard, R v AJS[17] is particularly apposite, requiring as it does that the judge decide what the real issues in the trial are and direct the jury accordingly.

57 Finally, I note that in R v DWB,[18] after referring to Sadler and HML, the Court observed that:

None of this is terribly satisfactory. The law on uncharged acts is now in a state of considerable uncertainty. What is plain, however, is that in the present case, the Crown specifically eschewed any reliance upon uncharged acts by way of propensity. The trial judge directed the jury in the clearest of terms that they could not use the evidence relating to uncharged acts as going to anything other than context. There was no real risk that the jury would misunderstand that direction. In accordance with the reasoning in Sadler, therefore, there was no obligation on the part of the trial judge to give a separate direction about the standard of proof applicable to uncharged acts.

58 In my view, the same may be said of the present case. That is, on the facts, the judge was not obliged to give the type of direction referred to in Sadler.

59 In these circumstances, it is neither necessary nor desirable to deal with the Crown's argument as to the correctness of Sadler. Anything said would be obiter and unlikely to provide assistance in what is already a difficult enough area.

61 The appellant submitted that although the judge gave a separate consideration warning and a propensity warning, such warnings were prefaced by reference to charged acts rather than uncharged acts. And the judge did not specifically refer to A's evidence about the 25 times the appellant had sex with her. He submitted that given the potential prejudice of that evidence, the judge should have specifically directed the jury that they could not use that evidence in relation to counts 3 and 4.

62 There is no substance in this ground. The judge directed the jury that:

... you must not use the evidence of what A says happened to her in determining whether the Crown have satisfied you what B says happened to her occurred, and vice versa ...

You must not think that if the accused man did something to one complainant, he is the sort of person who would commit the type of offence alleged to another complainant. That sort of logic is not logic; it is improper thinking and you must not indulge in it. B's evidence that A stayed regularly over at B's place in relation to considering ... counts 1, 2 and 5, obviously, would be relevant to those counts because it is not evidence about sexual offending, it is just her evidence generally who was at the house. But you must not use the evidence of any sexual activity by one complainant in determining the case involving the other. [emphasis added]

63 This direction made plain that the jury was not to use A's evidence as to any sexual activity when reaching their verdicts on counts 3 and 4. The appellant's submission is based on the premise that the jury would have understood the judge's reference to 'any sexual activity' as being limited to the sexual activity charged in counts 1, 2 and 5, thereby leaving them free to use A's evidence of the uncharged sexual acts in the case against the appellant on counts 3 and 4. There is no basis for the premise. The judge's directions plainly covered all sexual activity alleged by A and the jury would have understood the directions in that way. Ground 1A is not made out.

65 I agree that the appeal should be dismissed for the reasons set out by Hansen JA.

66 I also agree with Ashley JA's observation that there was confusion in the interchange between the trial judge and counsel when the evidence of uncharged acts was discussed in the absence of the jury immediately after empanelment.

67 On my reading of the transcript, if any application was made, it was an application for dispensation under s 100 of the Evidence Act 2008 and was made by counsel for the appellant.

68 It was, eventually, clear that the evidence was only to be led as context, which prompted the trial judge to say:

So I'll give the standard directions to the jury about, they can't use those uncharged acts any other way than to put in context what she says. They can't be used in substitute - (indistinct).

69 In response to which counsel for the appellant said:

Yes, Your Honour. And if there needs to be application by the Crown or by myself, I make that application for dispensation.

70 I think this reveals that the basis for admission of the evidence was context, but, perhaps with the concept of propensity under the old s 398A of the Crimes Act 1958 in mind, there was a misconception that leave or dispensation was necessary. The trial judge then made the confusing statement about 'leave' to which Ashley JA refers. No 'leave' was necessary in the circumstances.

71 In the end, nothing turns on the confusion as it was clear that the evidence was to be relied upon as context only, and the directions given were accordingly the appropriate ones.

[1] By which he meant allegations by A that the appellant had repeatedly had intercourse with her in late 2001 and early 2002. There was another piece of evidence that was treated as an uncharged act - evidence given by the appellant's brother from which it might have been inferred that the appellant and his daughter had showered together soon after the death of the appellant's wife. It is A's evidence of uncharged acts to which later reference in these reasons to uncharged acts will refer.

[2] And survive examination under s 137 of the Act, and as well ss 135-136.

[6] Which, as I have said earlier, is a possible, though improbable, interpretation of what occurred.

[8] This was the appellant's third trial for these offences.

[9] [2008] VSCA 198; (2008) 20 VR 69, 89 [65] (Nettle, Redlich and Dodds-Streeton JJA).

[18] [2008] VSCA 223; (2008) 20 VR 112, 125 [74] (Vincent and Weinberg JJA and Mandie AJA).

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