Sutton (a pseudonym) v The Queen [2015] VSCA 251

EVIDENCE - Uncharged acts - Sexual interest in complainant - Gentry v The Queen [2014] VSCA 211 applied - Whether evidence should have been excluded as unreliable - Whether VARE contained leading questions.

CRIMINAL LAW - Procedure - Amendment of the indictment - Criminal Procedure Act 2009 s 165(1) - Stay ordered of previous indictment - Stay order withdrawn - Criminal Procedure Act 2009 s 412 - Whether court functus officio - Filing over of a new indictment - Criminal Procedure Act s 164(4) - R v Reid [2010] VSCA 234; (2010) 29 VR 446 followed.

CRIMINAL LAW - Appeal - Conviction - Incest - No case submission - Directed acquittals on certain charges - Crown application for discharge of jury - Application opposed by defence - Application refused - Whether trial on remaining charges prejudiced by evidence relevant only to acquittals - Rational forensic decision of defence counsel not to seek discharge - No miscarriage of justice - Dragojlovic v The Queen (2013) 40 VR 71 applied.

WORDS AND PHRASES - 'De facto spouse' - 'living together as if they were married'.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

**1 The defining feature of the crime of incest is the existence of a family relationship between the offender and the victim. The relevant relationships fall into two categories: kinship relationships and parental relationships. In the first category, the victim is the blood relation of the offender; in the second, the offender is in a parental relationship with the victim. Obviously, there is some overlap between the categories.

2 In Victoria, until 1991, the second category of incest was limited to cases where the victim was the offender's child or grandchild ('lineal descendant') or the offender's step-child. In the case of a lineal descendant, the relationship is both a kinship and a parental relationship; in the case of a step-child, it is a parental relationship only, which exists (only) when the person is legally married to the victim's parent.[2]

3 In 1991, this category was extended to cover the case where the victim was the child of the offender's 'de facto spouse'.[3] As with a step-parent, the relationship with the victim is parental only. There is no kinship. Unlike a step-parent, however, a de facto spouse is not legally married to the victim's parent.

4 Under s 35(1) of the Crimes Act 1958, 'de facto spouse' is defined for this purpose as**

a person who is living with a person of the opposite sex as if they were married although they are not.[4]

This appeal raises for consideration the proper construction of the phrase 'as if they were married'.

**5 The victims of the alleged incest offences in the present case were both children of the woman (AK) with whom the applicant was at different times living, and with whom he had a child. The offences occurred following the resumption of co-habitation after a separation.

6 The applicant's contention was that, at the times of the alleged offences, AK was simply his carer, not his 'de facto spouse'. For reasons which follow, we would reject that contention. In our view, it was open to the jury to conclude that, at the time the offending occurred, the applicant and AK were living together 'as if they were married'. As will appear, the evidence of the parental relationship which existed between the applicant and the children is an important part of the analysis which supports this conclusion.**

7 Following a trial by jury in the County Court, the applicant was convicted on nine charges of incest, six charges of indecent act with a child under 16 and two charges of rape. He was sentenced as follows:

• Forensic Sample Order.
• Registered as a sex offender with a reporting period of life.

**8 Prior to the jury returning a verdict, the trial judge upheld a no case submission with respect to a further eight charges. The applicant was found guilty of all charges before the jury.

9 The charges relate to sexual offending against three separate child complainants. The complainants CK and LK were respectively the daughter and son of AK. The third complainant, OG, was a female friend of CK. The applicant was born in 1960 and was between the ages of 44 and 50 at the time of the charged acts.

10 The applicant and AK met in early 2004 and commenced a de facto relationship. They had a child together in December 2007. Both parties regarded the relationship as terminated by at least June 2009. As already noted, however, the status of their relationship during the relevant period (May 2006 - June 2009) is in dispute.

11 There were 12 separate incidents giving rise to the charges of which the applicant was convicted. These incidents occurred between September 2004 and July 2010. At the time of the charged acts, CK was aged between four and 10 years, LK between five and 11 years, and OG between 10 and 11 years.**

**12 Under ground 2, the applicant submits that the verdicts of guilty on the incest charges (2, 5, 6, 7, 8, 9, 10, 19 and 20) are unreasonable and cannot be supported by the evidence. It was an element of each of these charges that AK was the applicant's 'de facto spouse' at the time of the alleged offences. He contends that there was insufficient evidence to establish that fact. Under ground 3, the applicant submits that there was a substantial miscarriage of justice due to the trial judge failing to direct the jury adequately as to the factors they were obliged to consider in determining whether AK was his de facto spouse.

13 These grounds of appeal are conveniently dealt with together, as they raise the issue of the status of the relationship between the applicant and AK, and between the applicant and CK and LK. As already noted, the question for the jury was whether, at the relevant time(s), the applicant was 'living with [AK] as if they were married'. We will first set out the competing arguments and then review the relevant authorities.

14 The relevant charges span the period from January 2007 to August 2009. AK's living arrangements from January 2006 to the close of the offending period were as follows:**

**_(a) AK lived in Town E with the applicant until January 2006 (having moved from Town A with him on 25 October 2005), before moving interstate with CK and LK. She returned to Melbourne in May 2006;

(b) upon her return to Melbourne, AK lived with the applicant at the same Town E address as previously until she and the applicant moved to a Town B address on 14 February 2008; and

(c) in June 2009, AK moved out of the Town B address, and into another Town B address, approximately 900 metres away. The applicant did not move with AK to this new Town B address. AK and her children then moved in with friends in Town C for three to six months, before moving to DHS housing in Town D in June 2010._**

15 The applicant relied upon the following evidence from AK in cross-examination:

What I'm suggesting is that after you came back to - you gave evidence you came back to [Town E] in May [2006]?---Yeah, end of May.

The summary in relation to your Centrelink matter in 2007, tends to suggest that when you came back in May, that you were still telling Centrelink that you were single?---Yes, I did.

By that you were telling him that you were not in a partnered or husband and wife type relationship?---It was far from a husband and wife relationship.

Because your relationship with [the applicant] was effectively one as a carer?---Yes.

**16 The applicant's written case contended that the subjective views of a party to a de facto relationship were determinative of the question of whether such a relationship existed at a particular time. Accordingly, it was said, AK's evidence compelled the conclusion that there was no such relationship after January 2006. The applicant relied upon AK's evidence that the relationship: at the relevant times was 'far from a husband and wife relationship'; that she was the applicant's carer and had received a Centrelink carer's allowance; and that she had informed Centrelink that she was single.

17 The applicant conceded that there was other evidence capable of bearing upon the existence of a de facto relationship, but submitted that once a party had unilaterally terminated the relationship, such other evidence ceased to be relevant. AK's view was said to be particularly salient because it showed that the relationship had definitively been terminated, with the parties physically separating, before AK's return for the limited purpose of providing care.

18 In oral argument, however, counsel for the applicant accepted that whether a marriage-like relationship existed was to be determined objectively. He also conceded that the following evidence was capable of supporting the existence of the requisite relationship in the present case:**

• statements by the complainants (CK and LK) in their recorded interviews, that they regarded the applicant as a parental figure;
• the fact of co-habitation; and
• other sharing of care arrangements for CK and LK between AK and the applicant.

**19 Counsel for the applicant also conceded that the caring of one person for another could be seen as an attribute of a marriage-like relationship. Accordingly, counsel accepted, AK's characterisation of her relationship with the applicant as that of carer did not necessarily preclude the existence of a de facto relationship. Counsel maintained, nevertheless, that in view of AK's evidence the jury could not have been satisfied beyond reasonable doubt that she was his de facto spouse at the time of the relevant conduct.

20 The applicant also submits that the Crown could not particularise the date of the incidents underlying charges 8, 19, and 20. The Crown therefore could not prove beyond reasonable doubt that the incidents occurred at a time when the applicant was in a de facto relationship with the complainant's mother. In relation to charges 19 and 20, the applicant submits that the complainant's evidence indicated that the conduct occurred in either April or August 2009, although co-habitation between the applicant and AK had ceased in June 2009. In relation to charge 8, the applicant submits that no specific date or time range was provided for the commission of the offence.

21 In response, the Crown submits that little weight should be attached to AK's statement to Centrelink in May 2006 that she was single. She admitted having previously received Centrelink payments while her husband was working. Moreover, it was said, the cross-examination of AK did not explore what she meant by the expressions 'far from a husband and wife relationship' or 'carer'. In any event, the Crown said, AK's remarks in cross-examination were not the only evidence dealing with the nature of the relationship between AK and the applicant. The Crown also contends that the periods of time relevant to charges 8, 19 and 20 could be particularised sufficiently to show that the offences were committed while the applicant and AK were in a de facto relationship.**

22 As noted earlier, the 'parental relationship' category of incest was expanded in 1991 to include offending by de facto spouses. Introducing the Crimes (Sexual Offences) Bill, the then Attorney-General said:

Incest is an offence concerned with the exploitation of power within the family. For that reason it applies to step-parents as well as to natural parents. De facto marriages are now very common, and the power of a de facto spouse over a child may be no less than that of a natural or step-parent. The Bill therefore extends the offence of incest to de facto spouses.[8]

23 Established authority supports the Minister's characterisation of this form of the offence as one concerned with 'the exploitation of power within the family'. As long ago as 1914, in R v Frith,[9] the Full Court had to consider whether a man could be convicted of 'carnal knowledge' of his step-daughter if the step-daughter was illegitimate. The Court held that the legitimacy of the child was irrelevant. A'Beckett ACJ said:

I think that in answering this question we should consider the two evils contemplated by the Act - the abuse of authority incidental to parental or quasi parental relations, and the sexual intercourse of the same man with a mother and daughter. These evils would be present whether the daughter was legitimate or illegitimate.[10]

The evil of sexual intercourse is just as great, and the blood relationship in the case of a daughter or granddaughter just as strong, whether the girl was born in wedlock or not. With regard to the third class in that section - step-daughters - though there is no blood relationship between the man and the girl there is the same dominion, influence, and temptation, whatever the relationship of the girl's parents to one another and to the girl may be.[11]

**24 As these statements illustrate, the categories of incest overlap when the victim is the child of the offender. In such a case, there is both a kinship (blood) relationship and a parental relationship. As their Honours pointed out, however, the step-parent has no kinship relationship with the step-child. The relationship is parental only. The same is true for a de facto spouse.

25 Much more recently, in R v Sposito,[12] Marks J commented on the nature of incest in these terms:**

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim. An even more alarming revelation is the frequent failure in these cases of support for the victim from other members of the family. The child is so often without recourse to help from sources from which it might be expected to be forthcoming. Another feature is that the resolve of the victim to resist the demands of the offender is weakened by the natural affection which the child has for his or her parent, and by reason of other aspects of natural dependency.[13]

Incest is regarded by Parliament, the courts and the community as a very grave crime. Even in 1977 and 1978, when the present offences were committed, the maximum penalty for the crime was imprisonment for 20 years, whilst that for manslaughter was imprisonment for 15 years. It is an abhorrent offence, striking at the root of the family relationship and usually (as here) involving breach of trust and dereliction of protective duties in the pursuit of perverted gratification or the exercise of power. Accordingly, the offence usually merits condign punishment, since general deterrence and denunciation of the offender's conduct will usually be important for sentencing purposes. That is so even where the relationship between offender and victim is a step relationship, particularly when the victim is not adult and is under the offender's care and supervision.[15]

27 In R v J,[16] Toohey J (sitting as a member of the Full Federal Court) said:

The severity which the criminal law has traditionally visited upon the offence of incest derives from a number of considerations. It has been regarded as morally wrong and an offence against religion. It involves the genetic risk that certain diseases are more likely to occur. It is destructive of the family relationship. It involves a breach of the trust reposed in a parent to care for and protect his children. The cogency of these considerations has varied from time to time and from community to community.

...

The move away from the notion that law is the custodian of morals; the view that sexual conduct between consenting adults does not require the intervention of the criminal law; and an emphasis upon the importance of rehabilitating the family have all led to a climate of opinion that prison sentences may not be appropriate in some cases of incest. But the protection of young children from corruption and exploitation, especially by someone in a position of trust or authority, must remain an important and generally prevailing consideration.[17]

28 As these decisions make clear, the offence of incest when committed by a person who is in a parental relationship with the victim involves both:

**_(a) a breach of the trust reposed in the parent to care for and protect the child; and

(b) an exploitation of the power or authority which the parent has over the child._**

**29 As already noted, the question to be addressed under the extended definition of incest is whether the parent of the victim(s) was, at the relevant time, 'living with a person of the opposite sex as if they were married'. The legislature has thus identified the marriage relationship as the comparator, and has made the reasonable assumption that jurors will be quite familiar enough with such relationships to make the comparison.

30 Marriage relationships are, of course, infinitely varied. The only necessary condition is that a couple should have complied with the legal formalities to constitute their relationship a 'marriage'.[18] Thus a legally married couple may live apart - whether by choice or by necessity - while still regarding themselves, and being regarded, as 'married' rather than 'separated'. (We do not overlook the fact that living together is a requirement of the definition of 'de facto spouse' in s 35(1)).

31 Where there are children of a subsisting marriage, however, it will ordinarily be a characteristic of the marriage relationship that each adult assumes a responsibility to take proper care of the children and protect them from harm and - importantly - trusts the other adult unreservedly to do the same. Thus, when two persons who are legally married live together, there would ordinarily be little hesitation in describing them as 'married' even if their only reason for staying together was to care for the children of the marriage. In such a case, they would be 'living together as if they were married' even if:**

**(i) there had long since ceased to be any sexual relationship between them;

(ii) they slept in separate rooms, and rarely ate meals together; and

**32 Nor is it unknown for a married couple to separate and then - even after some considerable time - reunite because of the need of one spouse for care and support, and the readiness of the other to provide it. They would be, once again, living together as a married couple - and would be so regarded even if the condition of the ailing spouse were such that they were unable to communicate with each other.

33 This discussion serves to demonstrate that the phrase 'as if they were married' is capable of applying to a wide range of relationships and a wide variety of circumstances. More particularly, it highlights that a marriage relationship can exist even where its sole or primary purpose is to provide care and support for the children of the marriage, or to enable one adult to care for the other.

34 Axiomatically, careful attention must be paid to the statutory context in which the phrase appears. In King v The Queen,[19] both Neave JA and Bongiorno JA drew attention to other statutory schemes in which the existence of a de facto relationship is relevant. Their Honours referred both to social security law and to statutory regimes for property adjustment. As Neave JA pointed out, these schemes**

are primarily concerned with the economic consequences of co-habitation. The criteria for a de facto relationship adopted by the courts in such cases include matters such as the extent of the parties' financial inter-dependence and any arrangements for support made by them, and the ownership, use and acquisition of their property. These factors pertain mainly to the parties' financial relationship.[20]

35 The present context is quite different. As Neave JA said in King, the purpose of the category of incest concerned with parental relationships is

to protect children from sexual exploitation within close family relationships. The factors which are most relevant to determining whether such exploitation has occurred include the duration of the couple's relationship and whether they are emotionally and socially committed to each other and to the children, step-children and grandchildren of both of them.[21]

36 It follows, in our view, that the determination of whether the parent of the victim(s) was living with the accused 'as if they were married' must include consideration of the relationship between the accused person and the partner's child(ren). This will require examination of evidence which sheds light on:

**_(a) the role played, and responsibility assumed, by the accused with respect to the child(ren);

(b) the authority exercised by the accused over the child(ren); and/or_**

(c) the view which the child(ren) and the accused respectively had of the nature of the relationship between them.

**37 In this statutory context, accordingly, evidence about the relationship between the accused and his partner's child(ren) is likely to carry more weight (relative to other factors) than it would under a statutory regime concerned with the division of property after the breakup of a de facto relationship. In the latter case, attention is principally directed at the nature of the relationship between the adults and, in particular, at their financial arrangements. (The considerations which bear on an assessment of the character of the relationship between the adults are helpfully set out by Powell J in D v McA.)[22]

38 Of course, if other evidence established that the adults were living together 'as if they were married', the fact that the accused had had nothing to do with the child(ren) before the offending occurred might be of little consequence. But where - as here - it is said that the relationship between the adults lacked many of the features ordinarily associated with marriage, the relationship between the accused and the child(ren) will be of obvious significance.

39 In the present case, when CK was asked who the applicant was, she replied: 'He's my step-dad'. LK referred to him in exactly the same terms. Surprisingly, these were the only references in the respondent's written case to evidence bearing on the relationship between the applicant and the victims. A review of their evidence reveals, however, a whole series of relevant responses to questions (in both the recorded interviews and in cross-examination at the special hearings).

40 That evidence shows clearly that the offending occurred in circumstances where**

**_(a) the applicant was responsible for the care and protection of the complainants (typically, when 'Mum was at work');

(b) the applicant was in a position of parental trust, that trust having been reposed in him by the children's mother (AK) and by the children themselves;

(c) the applicant exerted his authority over the children, repeatedly ordering them to engage in or submit to sexual activity with him or (in one instance) with another person; and

(d) the children were under his power and control, as demonstrated by their unquestioning compliance with his persistent sexual demands._**

**41 This was very significant evidence, for the reasons already given. It demonstrated clearly that the relationship between the applicant and the children was a parental one, and was so viewed by the children, and that the applicant's offending was made possible by the existence of that relationship. Importantly, the fact that the applicant assumed parental responsibility for the children, and that AK evidently had complete confidence in him as their carer, supported the conclusion that they were living together 'as if they were married'.

42 In addition, the Crown referred to AK's evidence-in-chief, in which she mentioned the existence of daily contact between the applicant and herself while she lived interstate and gave positive descriptions of the relationship at the start of 2008; the birth of their child in December 2007; and the applicant's record of interview, stating that he was in 'a de facto relationship' with AK in 2007 and that it was in around May 2009 that it got 'bad living with' AK. The applicant and AK's co-habitation in two different places, and the long-term nature of the relationship, are also consistent with the conclusion that the applicant and AK, along with AK's children, operated as a family unit. Taking into account that no single factor is dispositive, it was well open to the jury to find as it did on the whole of the evidence.

43 With respect to charges 19 and 20, it was open to the jury to find that the de facto relationship subsisted until June 2009. Only a portion of the period specified in charges 19 and 20 fell beyond that date. As the Crown submitted, the complainant CK in her VARE stated that the offences occurred in her room when they were living with the applicant. The jury was entitled to accept that, despite CK's uncertainty as to the actual date, the offences thus occurred in a period prior to the cessation of the relationship between the applicant and AK on 21 June 2009. The contention that there was no evidence to establish the commission of these offences whilst the de facto relationship subsisted must fail.

44 With respect to charge 8, the Crown notes in its written case that the context of CK's VARE remarks, in conjunction with the applicant's record of interview, identified the first Town B house to which they moved on 14 February 2008 as a marker for when the events took place. Evidence was therefore available to the jury suggesting that the offences occurred during the subsistence of the de facto relationship. The applicant's complaint on this basis is devoid of merit.**

45 We now turn to ground 3. The ground in its original form stated that a substantial miscarriage of justice arose from the trial judge's failure to direct the jury as to the ability of a party to terminate a relationship unilaterally. Although ground 3 now assumes a more general form, counsel for the applicant stated in oral argument that the trial judge ought to have made reference to the considerable weight that must be given to the views held by a party to a relationship. Relying upon the observations of Neave and Bongiorno JJA in King,[23] it was said that the direction should have referred to the need for a mutual emotional commitment and the ability of a party to terminate a de facto relationship unilaterally. In particular, the applicant sought to rely on Bongiorno JA's observation that:

In the context of criminal liability, where the existence of a de facto relationship is a necessary element of an offence, it may often be necessary for the jury to be instructed as to the difference between a de facto relationship and marriage, the factors it must consider in determining the existence of such a relationship and the lack of formality which may attend its commencement and termination. This may be particularly so where whether such a relationship has been terminated or the date upon which such

termination was effected is or may be a matter upon which guilt of a crime depends.[24]

**46 It bears noting that, at trial, counsel for the applicant did not request a direction regarding the indicia that a jury was bound to consider in determining whether a de facto relationship subsisted. The applicant only made a request for a direction as to the ability of a party to terminate a de facto relationship without formality. The trial judge refused that request, stating that there was nothing that she could tell the jury beyond the definition in the Crimes Act 1958. However, her Honour's ruling did not preclude a submission that a direction was required that identified relevant indicia of a de facto relationship. To the extent that the applicant complains of the absence of the direction now sought, counsel's failure to seek that direction or to take exception to the charge fell short of the relevant obligations under statute and common law.

47 In R v Wright,[25] this Court said of the obligation at common law to take exceptions that 'defence counsel who fail to take appropriate exceptions are in breach of their obligations both to their clients and the court'.[26] The failure of counsel to seek such a direction will often prove critical.[27]

48 Under the Jury Directions Act 2013, one of the express purposes of the statutory regime is to 'clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given.'[28] Section 8 repeats this purpose in introducing pt 3 of the Act, which concerns requests by counsel for directions.

49 Sections 10 and 11 require the legal practitioners to identify the matters in issue and the directions required in dealing with those issues and the evidence relevant to them. As this Court said in Xypolitos v The Queen,[29] the obligation to request a particular direction continues to subsist during the charge. A failure to give a necessary direction or any misdirection will enliven counsel's duty to request a further direction.[30]

50 In Xypolitos, this Court interpreted the obligation under s 15 in the following words:**

Now, before the obligation arises, the judge must be positively satisfied that the direction in question is necessary to avoid a substantial miscarriage of justice. It requires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial.[31]

**51 In order for the applicant to make out this ground, s 15 of the Juries Direction Act 2013 requires the applicant to demonstrate that the trial judge ought to have concluded that a failure to provide the direction was likely to occasion a substantial miscarriage of justice. For the reasons that follow, the need for a direction of the kind sought by the applicant did not arise.

52 In oral argument, the applicant reasoned by analogy from Wilson v The Queen[32] (in which the High Court discussed the need to clarify the concept of 'dangerous' when charging the jury) that the concept of 'de facto' similarly required judicial explication. In the context of manslaughter by an unlawful and dangerous act, 'dangerous' requires elucidation of its legal meaning.

53 By contrast, in our view, it is undesirable to expand on the statutory definition of 'de facto spouse'. 'Living together as if they were married' is a concept which calls for the application of the jurors' experience and their common sense. A direction enumerating a list of factors relevant to whether the parties were living together as if they were married creates the risk that the jury would substitute the judge's view of the relevant factors for their own. The advantage of the jury system is to enable varied, and possibly conflicting, conceptions of a marriage-like relationship to be given due consideration.

54 In any event, the trial judge's direction was, in our view, perfectly adequate. Her Honour directed the jury in the following words:**

The issue is the question of the relationship and the nature of the relationship. Now a de facto spouse, according to the law that applies to this situation, is a person who is living with someone of the opposite sex as if they were married, although they are not. So you need to consider the nature of the relationship and whether it was a relationship as if they were married although they were not. They are obviously the opposite sex. No issue has been taken of that. Now there are two aspects of this. One is the time frame, that is, they have got to be living together. So there is evidence that [AK] moved out of the first [Town B] house. There seems to be no issue between the parties that by 21 June 2009 she had moved out, so after 21 June 2009, they were not living together, so you will need to consider when you are satisfied beyond reasonable doubt the incidents occurred. If you are not satisfied beyond reasonable doubt that it occurred before 21 June 2009 you cannot be satisfied beyond reasonable doubt that they were in a de facto relationship. So, that is why the date, why that is important. The second thing is that the defence says even if they were living together that does not mean that they were in a de facto relationship. Defence takes issue with that because they say [AK] when she came back from [interstate] in May 2006 did not regard herself as being in a de facto relationship and she was not in a de facto relationship. She told Centrelink she was single for a period of time, not for all of the time, but for a period of time and she said she was in a carer relationship. She said it was far from a husband and wife relationship. So, you need to think about that evidence carefully. You need to look at all of the evidence about what was going on in that household at the time and consider in relation to each of the charges if you are satisfied that the incident happened ... whether they were in a de facto relationship.

**55 The direction to the jury that they should look at the evidence of what was going on in that household sufficiently focused the jury's attention on the evidence relevant to whether they were together living 'as if they were married'. Her Honour highlighted the factor upon which the defence sought to rely, namely, AK's evidence as to the status of the relationship, but did not recite other counterbalancing factors relied on by the Crown as determinative of the nature of the relationship. To that extent, the direction was, if anything, unduly favourable. The applicant's complaint of a substantial miscarriage of justice lacks substance.

56 For the reasons stated above, it is not arguable that the trial judge in the present case ought to have regarded a direction setting out the indicia of a de facto relationship as necessary. Her Honour bore no such obligation under s 15.

57 We would refuse leave to appeal on grounds 2 and 3.**

**58 This ground concerns evidence given by FR in relation to uncharged acts that he observed. FR was a friend of LK and CK. He was 13 years old at the time of his VARE. The applicant submits that the trial judge should have excluded the evidence pursuant to s 101 of the Evidence Act 2008. For the reasons that follow, this ground must fail.

59 Relevantly, FR gave evidence that he witnessed two events involving the applicant. First, FR said that on one occasion he saw CK rub her hand up and down on the applicant's penis:**

Q14: All right. So tell me as much detail right from the start, right through the end what you want to tell me about.

A: Yeah. I was at [LK's] place and we were just playing a little game and I couldn't find him. So I walked inside see where he was [sic] and I walked in and I saw [CK] rubbing her hand up and down [the applicant's] penis. And then I closed the door like I didn't see anything and then he said, Come back in here, and he said, If you ever tell anyone about it I'm gunna put your dad away in gaol. And then I walked out trying to find [LK] and then I decided to just not, just not think about it anymore. And I didn't wanna tell anyone.

**60 FR said that CK was rubbing the applicant's penis inside the applicant's underpants. This incident was not the subject of a charge. It was led by the Crown to show that the applicant had a sexual interest in CK.

61 FR also gave evidence that he saw the applicant touching OG on her breasts, and said that this took place in a particular location. After describing how he went inside the house to get a drink of water, FR said:**

A: So I went inside to see where [OG] was 'cause she was meant to be outside playing and then I saw [the applicant] call [OG] in.

Q92: Yeah.

A: And then he just started touching her places.

Q93: Where, where was he touching her?

A: Breasts, on the breasts and in the private parts. And then, yeah, she went outside and she was looking really weird, like, and that would've been strange.

**62 FR said that the applicant was touching OG on the outside of her clothing. He clarified that 'private parts' meant OG's vagina. This incident was also not the subject of a charge. It was led by the Crown to show that the applicant had a sexual interest in OG.

63 The trial judge ruled that FR's evidence of the first incident was admissible to demonstrate that the applicant had a sexual interest in CK:**

In my view, there is sufficient similarity or nexus between the evidence of [FR] and the accusations that [CK] has made against the accused for this evidence to be probative of the accused having a relevant tendency.

There are aspects of [FR's] evidence which go to its reliability and which are matters which the jury ought to consider. I have taken those matters into account but I do not consider, on the material before me that the potential unreliability of [FR's] evidence is such that it diminishes the probative value of this evidence, to the extent that it is no longer of significant probative value.

**64 In light of that ruling, defence counsel conceded that FR's evidence of the second incident was admissible to demonstrate that the applicant had a sexual interest in OG.

65 At the time of the ruling, it was not possible to fix the date at which the events described by FR were said to have taken place. However, in its revised opening, the Crown said that the events that FR had observed had occurred after September 2010. It appears that that date was nominated because FR had said that he had witnessed the events when he was 12 years old, and his 12th birthday was in September 2010. The last instance of charged offending occurred in July 2010. After the date emerged, defence counsel requested that the judge reconsider her ruling in relation to the reliability of FR's evidence. Defence counsel did not seek to have the evidence excluded, but rather requested that the judge not give a tendency direction. The reason for the decision not to seek exclusion of the evidence appears to be that defence counsel sought to use the evidence to bolster an argument that FR had colluded with the complainants and could not be believed.

66 The judge ruled that the evidence remained admissible as tendency evidence notwithstanding the date inconsistency:**

First of all, I don't consider the potential unreliability of it is such that it doesn't meet the test in s 101. What I'm more concerned about is that according to [FR] it occurred after the allegations and incidents after can be tendency. It's fairly close in time. It's not very far after. If they accepted beyond reasonable doubt that it happened, I consider it would be probative to a degree, of a sexual interest in the - now, the jury may not accept that it happened but if they did accept beyond reasonable doubt that it happened, given the relative closeness in time, I consider it would be probative of a sexual interest in each but separately - in [OG] or [CK] such that it would be probative and admissible as tendency evidence.

...

So in respect of that I rule that it is admissible, it remains admissible as tendency evidence. That's [FR's] evidence about what he saw with the accused and [OG] and the accused and [CK] is admissible but the jury will be given directions about it, as tendency, sexual interest but separately in respect of each child.

**67 In her charge, the trial judge directed the jury as to the permissible uses of FR's evidence. Her Honour explained the basis upon which the Crown sought to rely on FR's evidence, to demonstrate that the applicant had a sexual interest in each of CK and OG, and emphasised that FR had said that the events had occurred after September 2010. She gave a standard propensity warning.

68 Before this Court, the applicant argued that the temporal gap between the charged acts and those observed by FR diminished the reliability of the evidence, diluting its probative value to the extent that it was outweighed by its prejudicial value. The applicant points out that there was no evidence that he was in the company of CK after September 2010. CK's mother gave evidence that she would not have allowed her children to be with the applicant after 21 July 2010, the date at which CK told her about the allegations. As a result, the applicant says, the evidence should have been excluded. We would reject this submission.

69 This Court has emphasised that evidence showing that an offender has a sexual interest in a particular victim has a special cogency. That is the category in which this evidence falls. As was said in Gentry v The Queen:[33]**

In cases involving a single complainant, generalised evidence of an accused's sexual interest in and sexual misbehaviour towards the complainant may have a highly probative value, and may legitimately contribute to an assessment of the probability of the charged acts having occurred. Such evidence is demonstrative of a specific tendency of the applicant to show a sexual interest in and commit sexual offending against a particular victim.[34]

**70 Dealing first with FR's evidence that he had seen CK masturbating the applicant, there were relevant similarities between FR's description and the charged acts. The general particularities were the same, involving the stimulation of the penis by the complainant in the privacy of home. Although CK mainly complained of oral and vaginal penetration, she also talked about touching the applicant's 'doodle'. In addition, the threat that the applicant made to FR to keep quiet was generally consistent with the tenor of CK's evidence of compulsion. FR's evidence was sufficiently similar to render it highly probative of the applicant's sexual interest in CK.

71 In respect of the timing issue, in the broad scope of the offending there was no significant gap. The offending against CK for which the applicant was charged was said to have taken place from 2004 or 2005 until July 2010. The events described by FR were said to have taken place after September 2010, although that date was fixed only as a result of FR saying that he was 12 years old at the time. The applicant's true argument is that, CK's mother having given evidence that she would not have allowed the applicant to see the children after July 2010, FR's evidence was fatally flawed and inherently unreliable. This overlooks the axiom that a jury is entitled to accept some parts of a witness's evidence and reject other parts; it would have been open to the jury to accept FR's evidence that the events occurred but to conclude that he was mistaken as to the date, which was not a critical part of his description. Moreover, this type of unreliability does not justify the exclusion of evidence. As was said in Gentry,[35] it is usually the jury's task to assess the reliability of evidence, and the frailties of child witnesses such as FR are no exception:**

The written submissions suggest that the inconsistencies with regard to the underwear in the complainant's VAREs, and which took place over a period of several years, render the content of the later VARE of no probative value. VAREs involving child complainants, which are conducted at intervals of years, will frequently contain such inconsistencies and the reasons for that may be many and various. These matters are ordinarily dealt with in the context of the trial. Issues of reliability remain predominantly within the province of the jury who are generally capable of evaluating the relevant issues with the benefit of correct judicial instruction. If the trial judge concludes that the complainant's reliability is of such an order or nature as to doubt the jury's ability to comprehend its infirmities despite proper judicial instruction, thereby creating an unfair prejudice that the evidence of the DNA may be given more weight than it should, then the evidence should be excluded.[36]

**72 As this Court said in Dupas v The Queen,[37] the reliability of evidence is relevant to assessing its probative value, but it is not necessarily a ground for exclusion. The temporal disconnection said by the applicant to render the evidence unreliable was easily explained to the jury, as the judge did in her charge.

73 Furthermore, defence counsel made a forensic decision not to seek the exclusion of FR's evidence when the time gap became known, for the sound reason that the applicant sought to rely on FR's evidence to say that the complainants were colluding.[38] The applicant cannot now complain that the evidence was not excluded as defence counsel made a rational forensic decision not to seek exclusion when the primary matter now relied on to justify exclusion emerged.[39]

74 In respect of the incident concerning OG, FR's descriptions were of the same kind as the allegations made by OG. OG alleged that the applicant touched her breasts and vagina. FR described seeing the same type of touching, albeit on a different occasion. The applicant points to OG's statement that there were only the two instances of offending, those leading to the charged acts. As FR described another occasion in his evidence, this evidence directly contradicts FR's account. Again, that contradiction, said to render FR's evidence unreliable, was relevant to the jury's assessment of his evidence and did not justify exclusion. FR's evidence was highly probative of the applicant having a sexual interest in OG.

75 Finally, although it was not the primary matter relied upon in this Court, the applicant argued before the trial judge that the possibility of collusion or collaboration between the complainants was another reason for exclusion of the evidence. This submission is without substance. As this Court said in Murdoch v The Queen,[40] there must be a 'reasonable possibility' of concoction or collusion. Mere speculation as to opportunity or possibility does not suffice.

76 Here, FR said that he had never spoken to CK, LK or OG about what he saw. FR repeated that in cross-examination at a special hearing, and further said that he had never heard CK, LK or OG talking about the allegations. CK did not nominate FR when asked who was present when she spoke about the allegations. OG was not asked whether she had spoken to FR. There was no evidence of any collusion or collaboration between FR and the complainants. There was no basis upon which the trial judge could have found that it occurred.

77 We would refuse leave to appeal on this ground.**

**78 Under ground 5, the applicant submits that a substantial miscarriage arose as a result of the trial judge admitting certain evidence given by CK in her VARE, said to be responses to a leading question. The evidence constituted the basis for charge 7. The applicant submits that, pursuant to s 37 of the Evidence Act 2008, the evidence should not have been permitted to be led. For the reasons that follow, there is no substance to this complaint.

79 The impugned evidence is contained in an exchange in CK's VARE. CK said that the applicant orally penetrated her each time the applicant touched her:**

Q240: Yeah. Tell me about those times that he made you suck his doodle.

A: Well, I'd just be, like, sitting in my room doing something and then he just told me to, he'd just pull off his underpants and make me suck his doodle.

Q241: When did that happen?

A: Well, every time, well, every time that he did it to me, like, every time he touched me he did.[41]

80 CK then gave evidence about an episode of vaginal penetration (the subject of charge 6) in response to the following question explicitly raising oral penetration:

Q244: [T]ell me about a time that we haven't talked about that he made you suck [his] doodle. You said there was a time you were in your room playing. And when was that and what room were you in?

81 The description that then followed was of a vaginal penetration. The exchange continued:

Q266: Is there anything else that you can remember about that time?

A: No.

Q267: Where was [LK] what that happened?

A: I, he, he went to work with mum, I think or ---

Q268: OK.

A: --- or he was at his friend's.

Q269: OK. So where did mum work then?

A: At [Town C], the Club Hotel.

Q270: And do you remember what day of the week that happened?

A: No.

[Question 271 was excluded.]

Q272: So, we just, just so, before we jump ahead, this time where you say he put his doodle in your vagina, did you have to suck his doodle on that time?

A: Yeah.

Q273: All right. So did that happen before or after?

A: After.

Q274: So you say it happened when, after he put his penis, sorry, his doodle into your vagina?

A: Yeah.

Q275: Yeah. So how did you have to suck his doodle then?

A: I just have to put my mouth in and out.

Q276: And how long did you do that for?

A: Two minutes.

Q277: And how did that stop that time?

A: Well, he just say, Stop, and pushed me ... and get his underpants and ...

Q278: OK, all right. ...

**82 The applicant objects to the admission of the answers to questions 272 to 277, saying that question 272 in particular was a leading question. The trial judge ruled that, in the context of the earlier questioning and allegations that the applicant had orally penetrated CK, the question was by way of clarification rather than suggestion. The applicant submits that CK had earlier said that she could not remember anything else, confirming the full extent of the episode. The applicant says that the question whether CK had had to perform oral sex upon the applicant was a leading question, and that CK's answer ('Yeah') was an affirmative answer to the suggestion contained therein.

83 Section 37 provides that a leading question must not be put to a witness in examination-in-chief. 'Leading question' is defined in the Dictionary to the Evidence Act 2008 as follows:**

leading question means a question asked of a witness that

(a) directly or indirectly suggests a particular answer to the question; or

(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked; ...

84 It is important to bear in mind the circumstances of the evidence given in this and similar cases. The witness was a child and was in an undoubtedly stressful situation, discussing highly personal events. It will be necessary for a questioner to amplify answers given. In Martin v The Queen,[42] Redlich JA emphasised the questioner's role in the elicitation of evidence:

Once a complainant's allegations have been voluntarily made, the investigator will usually need to identify and substantiate the allegations with more particularity. Direct questioning that reminds a child of an allegation already made voluntarily does not constitute a leading question. In that context it is to be expected that the nature of the questioning will at some points take on a more direct approach, particularly in seeking to amplify allegations to which the child has already adverted. Thus in SLJ v The Queen, further evidence of certain allegations was elicited at the prompting of the police interviewer during the VATE. No criticism could validly be made of those questions, where the allegations had already been voluntarily made by the complainant and the interviewer was seeking clarification of the nature and circumstances of the allegation.[43]

**85 The impugned questions here were not leading. The topic of oral penetration had previously arisen. CK had previously said that oral penetration occurred every time the applicant touched her. That prior evidence would be sufficient to prompt a clarifying question to determine whether it had occurred on the particular occasion that the applicant was describing. Indeed, the question itself was not particularly suggestive. It was certainly open to CK to say that oral penetration had not occurred on this occasion. But, in addition to the general context of the questioning, the allegedly leading question came after CK gave evidence in response to a question asking her to recount what happened in an incident in which the applicant had penetrated her mouth. It was not leading to raise that point again after she gave an account that appeared incomplete.

86 Given that s 37 does not provide for the exclusion of evidence obtained in breach of that provision, the trial judge appeared to consider the exclusion of the evidence on a s 137 analysis. The applicant's written submissions, emphasising the allegedly low probative value of and unfair prejudice flowing from the evidence, followed suit. In oral argument, the applicant submitted in the alternative that the evidence should have been excluded pursuant to the general unfairness discretion described by this Court in Haddara v The Queen.[44]

87 The possibility of exclusion on the ground of general unfairness did not arise in the present circumstances. The reason for excluding answers to leading questions under s 137 is to protect against the risk that the evidence is unreliable, and will be given more weight than it deserves. The question of the admission of an answer to a leading question is properly to be approached by reference to s 137. Here, even if the question had been leading, the nature of the answer was such as to dispel any doubt about the reliability of the evidence. CK described not only that the applicant orally penetrated her but described how he did so, in a manner that went beyond any suggestion contained in the impugned questions. No unfair prejudice would have arisen from the admission of the evidence even if the questions had been leading.

88 We would refuse leave to appeal on this ground.**

**89 Under ground 6, the applicant complains that he suffered a substantial miscarriage of justice as a result of the trial judge allowing an amendment of the indictment. The day before the hearing of this appeal, the applicant sought leave to add a particular to the ground, to the effect that he suffered a substantial miscarriage of justice as a result of the trial judge reversing her order to stay a previous indictment so as to permit the Crown to amend the current indictment. Both limbs of this ground must fail.

90 The applicant was arraigned for the purpose of this trial on Indictment C10170864A.2 on 16 July 2013 ('current indictment'). Also on 16 July 2013, the trial judge made an order to permanently stay Indictment C10170864 ('original indictment'). Charges 4 and 13 on the current indictment are charges of compelled rape under s 38(1) and (3) of the Crimes Act 1958. Each charge as amended alleged that the applicant compelled LK to penetrate CK while CK was not consenting. LK is named as the victim. Prior to the amendments to the current indictment, CK was named as the victim in each charge. The original indictment included charges which were identical to charges 4 and 13 on the current indictment, as well as two charges arising from the same event naming LK as the victim. When the indictment was filed over for the purposes of this trial, those charges from the original indictment naming LK as the victim were not included.

91 Charges 4 and 13 on the current indictment were incorrectly drawn. Section 38(3) states that the victim of the rape is the person who is compelled to penetrate the other person. In this case the victim of the compelled rapes was LK. On 17 July 2013, the Crown sought to amend charges 4 and 13 in the current indictment to nominate as the victim of those offences. The applicant objected to this course on a number of grounds which included that the amendment would result in the reinstatement of the two charges on the original indictment which had been permanently stayed.

92 In a ruling that day, the trial judge withdrew the order to permanently stay the original indictment pursuant to s 412 of the Criminal Procedure Act 2009 and allowed the amendment to the current indictment pursuant to s 165 of the Act. In respect of the amendment, the judge ruled:**

It has been clear from the very beginning of these proceedings which commenced some many months ago, up to and including the opening address and defence response, that what the prosecution was alleging was that the accused compelled [LK] to sexually penetrate his sister [CK] and that that gave rise to a count of rape. It appears that the decision by the prosecution to decide to proceed on Charges 4 and 13 as currently worded was an error. It is my view that the only way that allegation can be properly put on any indictment in a charge given the facts alleged and the state of the provisions is to make the amendment sought. Those amendments are in my view necessary to accurately convey the allegation that the prosecution seeks to make. The question then remains whether that amendment can be made without injustice to the accused.

The question of injustice to the accused has to be considered in the light of the issue of there being a fair trial of charges on which the accused is properly and lawfully presented. The accused at all times has understood what the allegations are about. The accused has denied robustly that he committed any of these offences. I accept that making the amendments sought will place the accused at a disadvantage in that if the appropriate facts are proved beyond reasonable doubt he may be found guilty of this charge when he could not have been found guilty of the charges as they are currently framed. I do not consider that that type of disadvantage constitutes an injustice to the accused.

I do not consider it constitutes an injustice to the accused to allow the correction of this error given that this matter has occurred at this stage of the trial.

93 Section 165(1) of the Criminal Procedure Act 2009 provides as follows:

Order for amendment of indictment

(1) The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

**94 The applicant submits that the amendments caused injustice to the applicant. The applicant says that the Crown made a considered decision to proceed with the charges as drawn, and argues that 'real injustice' flowed from the amendment in that there was a probability of acquittal on the charges if the amendment was not made. We do not accept this submission.

95 The applicant has not identified any relevant injustice flowing from the amendments. The application to amend was made before any evidence was called. The factual case against the applicant was always understood. The applicant's suggestion - that he was more likely to be acquitted had the amendments not been permitted - misunderstands the relevant injustice to which a court must direct its attention. It is not productive of injustice that the applicant was more likely to be convicted of the charges as a result of the amendments. That will frequently, and entirely properly, be the purpose of amendments sought under s 165.

96 Section 165 is a broad provision. This is illustrated by two recent decisions of this Court in which the exercise of the amendment power was approved. In OAA v The Queen,[45] this Court allowed an amendment to be made on appeal to distinguish between two counts which were identical on the indictment, though it was understood that they referred to separate acts. The applicant had pleaded guilty to both charges and his counsel had acknowledged in oral argument that there had been no prejudice. The applicant nonetheless sought to have his conviction on the first count quashed. The Court (Maxwell P and Weinberg JA) allowed the amendment, saying:**

The appellant knew full well what the allegations against him were, and he nonetheless elected to plead guilty. It would be elevating form over substance to now pretend that there was some latent uncertainty in the case he had to meet, and that his conviction on one of the counts in question should be quashed.[46]

97 In R v Reid,[47] the accused was charged with the offence of recklessly causing injury as an alternative to a charge of intentionally causing injury. When the jury informed the judge that they were unable to reach a verdict on the charge of intentionally causing injury, the judge ordered that the presentment be amended to substitute the charge of recklessly causing injury for the charge of intentionally causing injury. The accused was subsequently convicted of that charge. The Court of Appeal refused his appeal, observing:

The presentment in this case was defective because it failed to include a count of recklessly causing injury which was disclosed by the depositions and which was in effect agitated throughout the trial. The result of the defect, had it not been cured, was that the jury would have been prevented from returning a verdict on the count of recklessly causing injury, even though they were plainly persuaded that the applicant was guilty of that offence, and would have been subjected to the dilemma of either convicting the applicant of the more serious count of intentionally causing injury (about which it appears they were intractably disagreed) or acquitting him altogether. To have left the presentment in that state, in those circumstances, would have been 'discreditable'. The right course was to allow the amendment ...[48]

**98 As in OAA, the present applicant was never under any illusion as to the case against him. The acts the subject of the impugned charges were not attended by any uncertainty. As in Reid, evidence of those acts was always intended to be led at trial. If the trial judge had refused to allow the amendment of the defective charges in the indictment, a resultant acquittal purely on the basis that the Crown had incorrectly framed the charges would have been undesirable. The trial judge was correct to allow the amendment of the charges pursuant to s 165.

99 The applicant further argues under this ground that the judge erred in reversing her permanent stay of the original indictment. On the day of the arraignment, 16 July 2015, the judge both certified the current indictment for filing and, when requested by defence counsel, granted a permanent stay of the original indictment. It occurred in these circumstances:**

[DEFENCE COUNSEL]: You can now stay the original indictment because the entirety of the charge - - -

HER HONOUR: ... That's right. Yes, thank you. So I also grant a permanent stay in relation to Indictment C10170864.

100 In her ruling of 17 July 2015, the judge withdrew her order staying the original indictment:

The defence objects to the amendments on a number of bases. One basis of objection was that I had made, yesterday, order permanently staying the

original indictment, which was Indictment C10170864. I announced that order although it has not been recorded in the formal orders of the court yet.

After hearing submissions and on reflection, I consider that that order was made in error. Given the current provisions of the Criminal Procedure Act 2009, which in s 164, provides for the effect of the filing over a new indictment, it is no longer necessary, if it ever was, to order a stay in respect of a previous indictment.

No application for a stay was actually made, although defence counsel prompted the making of the order by referring me to an earlier comment that I had made that I would make such an order. There was no argument on it and it was not a stay made on the basis of any form of injustice or any such matter, but was rather made in order to make the record clear.

In those circumstances I consider the making of the stay order that I made, in respect of that indictment, was made in error and ought not to have been made. And pursuant to s 412 of the Criminal Procedure Act 2009 I withdraw that order.

**101 The applicant now says that the judge had no power to reverse the stay pursuant to s 412, arguing that the judge was functus officio. This submission is based on a false premise. As senior counsel for the Crown submitted in oral argument, the order for a stay had not been entered into the record. The judge was therefore not functus officio, and did not need to rely on s 412. Until the order was entered into the record, she was at liberty to withdraw it.

102 We also note that, as the judge correctly said in her ruling, there was no need for any order staying the original indictment. The judge was only wishing to discontinue the original indictment. The filing over of a new indictment is governed by ss 163 to 165 of the Criminal Procedure Act 2009. Section 164(4) provides:**

On the filing of a fresh indictment against an accused, proceedings in relation to a charge for the same offence or a related offence in an indictment previously filed in court against that accused are discontinued.

**103 The effect of the original order that was pronounced would have been to permanently stay all of the charges in the original indictment. If the judge had entered the order into the record, then (subject to s 412) the Crown would not have been entitled to prosecute any of the charges that were carried over from the original indictment to the current indictment. That was plainly not the outcome sought to be effected by the filing over of the current indictment.

104 We would refuse leave to appeal on this ground.**

**105 At the conclusion of the Crown's case, defence counsel made a no case submission in respect of five charges of incest, on the basis that there was no evidence that the applicant had been in a de facto relationship with the complainants' mother at the time of the charged acts. The prosecutor applied to amend the charges to sexual penetration of a child under the age of 16. Defence counsel opposed the application. The trial judge refused the Crown's application to amend and ordered that directed acquittals be entered in respect of the charges. For the purpose of determining this ground, it is unnecessary to consider whether that ruling was correct.

106 The Crown then applied for a discharge of the jury in respect of the balance of the charges. Defence counsel opposed the application, arguing that a direction would be sufficient to protect against unfairness to the applicant as a result of the admission of evidence led in support of the charges upon which directed acquittals were entered:**

A discharge is not sought by defence. This situation, in our submission, is different to the cases where it was a subsequent trial, where an acquittal has been achieved and it's in effect a re-trial, where in that situation it may be appropriate to sanitise out evidence if it's not admissible. In our submission, in this case, [the applicant] can achieve a full effect of an acquittal in relation to those charges by an appropriate direction from Your Honour as to how they can or can't use the evidence that relates to those charges.

107 The judge refused the discharge application:

I consider that in view of the nature of the allegations as a whole in this matter and the evidence as a whole included in the Crown case that the situation has not reached the high degree of necessity that would be required for the discharge of the jury.

It is of particular importance that the defence, on behalf of the accused, wishes the trial in respect of the remaining charges to go ahead. I consider appropriate, clear and strong directions can be given to the jury. Accordingly the prosecution submission for the application for the discharge of the jury is refused.

**108 Under this ground, the applicant says that the judge should have ordered that the jury be discharged, notwithstanding defence counsel's opposition to that course. The applicant argues that defence counsel's decision to oppose the application was not a 'sound exercise of forensic judgment'. The applicant says that the trial judge was obliged to discharge the jury as a result of the substantial amount of evidence admitted in respect of the charges which were ultimately the subject of a directed acquittal, some of which he says was highly prejudicial. For the following reasons, we do not accept these submissions.

109 The applicant faces the substantial impediment that defence counsel made a considered forensic decision not to seek the discharge of the jury. As this Court explained in Dragojlovic v The Queen,[49] an appellate court attaches particular significance to the forensic decisions of counsel when the issue is whether the jury should be discharged:**

The decision whether or not to seek a discharge of the jury when something has gone wrong during the course of a trial, is, necessarily, one that is best taken by the accused, on the advice of his or her legal representatives. It is they who grasp the atmosphere of the trial. It is they who are in the best position to assess whether, as a result of what has occurred, serious prejudice has been done to the accused's prospects.

For this Court to second-guess a considered decision not to seek a discharge, repeatedly reiterated, would, in our view, be both highly unusual, and a significant departure from the approach ordinarily taken in relation to such matters. It would effectively convey to any accused that he or she need not worry about seeking a discharge if something has occurred which warrants it, because this Court will step in, and quash any conviction irrespective of what course was adopted at trial. In effect the accused would be given a 'free kick': a chance at acquittal before the jury, and a retrial should there be a finding of guilt.[50]

110 Here, defence counsel clearly perceived a forensic advantage in proceeding with the trial on the remaining charges. Discussion between the prosecutor and the judge at the time of the application suggested that the Crown applied for the discharge in order to 'fix' the Crown case:

HER HONOUR: Why should not it be the case that a verdict of acquittal be entered and that those charges be taken away from the jury?

[PROSECUTOR]: Because these are serious matters which it's respectfully submitted in circumstances of this particular case, factual circumstances of this case, without going into the previous discussions and argument, in the circumstances to serve justice such a situation would be applicable.

HER HONOUR: Why?

[PROSECUTOR]: Your Honour, for the reason that the very nature of the acts and the conduct of the defence - and I'm not suggesting that there is any responsibility for the defence to prove anything - but the very nature of the conduct of the defence in the circumstances is such that it would be unjust to simply deliver or direct a verdict of not guilty.

HER HONOUR: The element of proving a de facto relationship is an element that has been there all the time. I'm not sure what my decision is on the amendment or the alternative direction. But if I were against you on both of those things what you're asking is that I discharge the jury so that the Crown can have another go at the whole thing just to let the Crown fix its case up when the Crown has already had months to organise this trial.

The accused has been waiting for a long time for his trial. Both the Crown and the accused have waited for a long time, in part because of the listing difficulties of the court. The prosecution has run its case and closed its evidence, and now there's a no case, and then your suggestion is that if I agree that there's a no case effectively then what ought to happen is either that you be allowed to fix it up by amendment or that I discharge this jury so that you can have another go at it at another trial.

That is the effect, isn't it, of what you're asking?

[PROSECUTOR]: Seemingly so, but in the circumstances - and I use the word 'seemingly' advisedly - - -

HER HONOUR: Anyway you consider that, as you say, a discharge of the jury would be appropriate in the interests of justice?

[PROSECUTOR]: In the interests of justice because of the very nature of the offending, the extensive period of offending.

**111 It is apparent that it was at least a live possibility that the purpose of the discharge application was to enable the Crown to reframe or add charges against the applicant to secure a greater chance of conviction at another trial. Whether the applicant was better placed to confront the charges against him at the ongoing trial or at a new trial was a matter for defence counsel to evaluate. As was said in Dragojlovic, this Court will not lightly permit an accused person to have a re-trial merely because the outcome of the first was adverse.

112 It was the trial judge's - and defence counsel's - view that appropriate directions to the jury were sufficient to prevent injustice to the accused as a result of the evidence relating to the charges upon which an acquittal was entered being before the jury. A trial judge will only be required to discharge a jury where the discharge is necessary to prevent a miscarriage of justice.

113 As Dawson J explained in Crofts v The Queen,[51] the trial judge is in the best position to make that assessment and to determine whether a direction to the jury would suffice to avoid any prejudice:**

Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that 'a high degree of need for such discharge' must appear before a discharge will be ordered. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.[52]

114 Here, the trial judge did so determine. In the event, the judge told the jury that the evidence relating to those charges was irrelevant and not to be considered:

Those charges and the factual allegations in those charges are now removed from your consideration in this trial. That means that you must completely put aside and ignore the evidence of [LK] about the incidents which are the subject matter of those charges when you are considering the remaining charges.

Any evidence about the charges which have been removed from your consideration is absolutely irrelevant to your consideration of the remaining charges. Whatever you might have been thinking about those incidents must be entirely put aside and disregarded. You will be addressed by prosecution and defence about the evidence which they say is relevant to the remaining charges.

...

If during your deliberations you are unsure whether a particular piece of evidence relates to the removed charges, please identify the particular piece of evidence and ask me to clarify the situation. I repeat, that in considering the remaining charges you must completely and utterly put aside and ignore the evidence as to the alleged incidents which the removed charges were about. You must consider the facts in relation to each of the remaining charges only the basis of the evidence which applies to that charge.

**115 This direction went too far and was unduly favourable to the applicant. The law is clear that, where a directed acquittal occurs on a joint indictment, ordinarily there is nothing to preclude the jury using the evidence led on those counts upon which an acquittal was entered if that evidence is relevant to other charges on the indictment, so long as the verdict of acquittal is not controverted.[53] Moreover, the applicant can have no complaint about the directions made in respect of the impugned evidence. Even if the evidence could not have been used by the jury, there is no reason to think that those directions were insufficient to overcome any prejudice flowing from the admission of that evidence. There was no miscarriage of justice.

116 We would refuse leave to appeal on this ground.**

**117 The applicant having failed to make out any error in respect of the other grounds of appeal, these grounds also fail.

118 We will order that the application for leave to appeal be refused.**

[1] To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the persons mentioned herein.

[2] Wilkinson v Joughin (1866) LR 2 Eq 319.

[3] Crimes (Sexual Offences) Act 1991 s 3.

[5] Crimes Act 1958 s 47(1).

[6] Ibid s 44(2).

[7] Ibid s 38(3).

[8] Victoria, Parliamentary Debates, 10 October 1990, 689 (Jim Kennan) (emphasis added).

[9] [1914] VicLawRp 97; (1914) VLR 658.

[12] Unreported, Supreme Court of Victoria, Full Court, Marks, Hampel and McDonald JJ, 8 June 1993.

[13] Emphasis added. See also Reid v The Queen [2014] VSCA 145, [83].

[14] [1998] VSCA 32; (1998) 7 VR 693.

[15] Ibid 699 [19] (citations omitted) (emphasis added).

[16] (1982) 45 ALR 331.

[18] Marriage Act 1961 (Cth) s 5(1).

[19] (2011) 34 VR 106 ('King').

[22] (1986) 11 Fam LR 214, 227, quoted in King (2011) 34 VR 106, 112 [27] (Bongiorno JA).

[23] (2011) 34 VR 106, 108-9 [9], 114 [32].

[25] [1999] VSCA 145; [1999] 3 VR 355.

[26] Ibid 356 [2]. See also R v Caine (1990) 48 A Crim R 464, 475; R v Roberts [2001] NSWCCA 163; (2001) 53 NSWLR 138.

[27] Murrell v The Queen [2014] VSCA 334.

[28] Section 1(d).

[29] [2014] VSCA 339 ('Xypolitos').

[31] Ibid [44] (emphasis in original).

[32] [1992] HCA 31; (1992) 174 CLR 313.

[33] [2014] VSCA 211 ('Gentry').

[34] Ibid [29] (Redlich JA, Tate and Priest JJA agreeing). See also Lancaster v The Queen [2014] VSCA 333, [84]-[87]; Velkoski v The Queen [2014] VSCA 121.

[35] [2014] VSCA 211.

[36] Ibid [41] (Redlich JA, Tate and Priest JJA agreeing) (citations omitted).

[37] [2012] VSCA 328; (2012) 40 VR 182.

[38] See Nabole v The Queen [2014] VSCA 297, [43] (Redlich JA, Weinberg and Priest JJA agreeing); Velkoski v The Queen [2014] VSCA 121, [4] (Redlich, Weinberg and Coghlan JJA); Ulutui v The Queen [2014] VSCA 110, [27]-[31] (Redlich JA, Neave and Tate JJA agreeing).

[39] James v The Queen [2013] VSCA 55, [4]-[13]; Pate v The Queen [2015] VSCA 110, [139]-[140] (citations omitted).

[40] [2013] VSCA 272, [7], [85].

[42] [2013] VSCA 377.

[43] Ibid [37] (Redlich JA, with whom Maxwell P and Neave JA agreed) (citations omitted). See also Tukuafu v The Queen [2014] VSCA 345, [34].

[44] [2014] VSCA 100.

[45] [2010] VSCA 155 ('OAA').

[47] [2010] VSCA 234; (2010) 29 VR 446 ('Reid').

[48] Ibid 452 [26] (citation omitted).

[49] (2013) 40 VR 71 ('Dragojlovic').

[51] [1996] HCA 22; (1996) 186 CLR 427.

[53] R v VN [2006] VSCA 111; (2006) 15 VR 113, 134-8; JRW v The Queen [2013] VSCA 255.