D R v The Queen [2011] VSCA 440 (20 December 2011)

Last Updated: 20 December 2011

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0298

D R	Applicant
D R

v

THE QUEEN	Respondent
THE QUEEN

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JUDGES	NEAVE, HANSEN JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 October 2011
DATE OF JUDGMENT	20 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 440
JUDGMENT APPEALED FROM	DPP v [DR] (Unreported, County Court of Victoria, Judge Murphy, 4 August 2010)

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CRIMINAL LAW − Conviction − Incest − Indecent assault − Gross indecency − Indecent act with and in the presence of a person under the age of 16 − Two complainant stepdaughters

− Joinder − Whether substantial miscarriage of justice occasioned by trial of offences against both complainants in same proceeding − Evidence − Admissibility − Tendency and coincidence evidence − Jury directions − Whether trial judge adequately directed jury regarding use of charged and uncharged acts and elements of offences − Whether substantial miscarriage of justice occasioned by jury directions being given prior to charge.

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Appearances:	Counsel	Solicitors

For the Applicant	Mr P G Priest QC with Mr T Kassimatis	Pica Criminal Lawyers

For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

HANSEN JA:

BEACH AJA:

1 The applicant, DR, was presented on nine counts of sexual offences against his stepdaughter AR, and 29 counts of sexual offences against his stepdaughter ER.

2 A County Court jury found him guilty of three counts of indecent assault of AR (counts 1, 4 and 5); two counts of gross indecency against AR (counts 2 and 9); 7 counts of an indecent act with ER (counts 11, 13, 20, 32, 33, 35, 36); 10 counts of an indecent act in the presence of ER (counts 10, 12, 16, 19, 21, 22, 24, 25, 29 and 37) and five counts of incest involving penetration of ER (counts 18, 23, 28, 30 and 31). The Crown conceded that no evidence had been led in support of counts 3, 8, 14, 15, 17, 26 and 27 and the jury was directed to acquit the applicant of these counts.

3 The offences committed against AR arose out of four separate incidents when she was between nine and ten years old. Those against ER arose out of fourteen separate incidents, over several years, when she was between eight and fourteen years old.

4 After hearing a plea in mitigation of sentence, the applicant, who was between 37 and 45 years old at the time of offending and 56 at the date of sentence, was sentenced to a total effective sentence of eight years and nine months’ imprisonment, with a non-parole period of five years and nine months’ imprisonment.

5 The applicant now appeals against his conviction and the sentences imposed on him.

Background

6 The applicant was born and educated to the equivalent of Year 10 in England. In 1990, after having arrived in Australia from England, the applicant married the complainants’ mother, and moved into the complainants’ home.

7 The evidence relating to the offences of which the applicant was convicted and the sentences imposed can be summarised as follows:

Count	Offence	Complainant’s evidence	Sentence	Cumulation
1	Indecent Assault of AR	Applicant called complainant into his bedroom and asked her to lift up her nightie and pull her knickers up high above her hips, so that he could see her vaginal area ‘bulging out’. Touched complainant’s vagina with his fingers.	6 months	3 months
2	Gross Indecency with AR	Following count 1, told her to keep standing there with her knickers up high and masturbated in complainant’s presence while touching her. Asked the complainant ‘do you know what white stuff is?’	4 months	2 months
4	Indecent Assault of AR	Called complainant into bedroom while lying on bed with erect penis. Told complainant to lie on top of him, and complainant could feel erect penis rubbing over her stomach.	6 months	2 months
5	Indecent Assault of AR	Called complainant into bedroom, asked her to pull her knickers aside and touched complainant’s vagina.	4 months	1 month
9	Gross Indecency with AR	Called complainant into his bedroom and asked her to pull her knickers up to expose her vagina and touched her vagina over her knickers. Masturbated in complainant’s presence.	4 months	1 month
10	Indecent Act in the Presence of ER	Exposed and stroked penis in the kitchen in the presence of the complainant.	12 months
11	Indecent Act with ER	Following count 10, asked complainant to touch and hold his penis, which she did.	12 months	3 months
12	Indecent Act in the Presence of ER	Called complainant into his bedroom in the evening when the mother was at work, where he was lying on bed naked with erect penis.	12 months
13	Indecent Act with ER	Following count 12, asked complainant to stroke his penis., Put hand over complainant’s hand and masturbated by moving her hand up and down.	12 months	3 months
16	Indecent Act in the Presence of ER	Asked complainant to come into his bedroom, where she found him lying on bed naked with erect penis.	12 months
18	Incest with ER	Following count 16, asked complainant to suck his penis, telling her to suck his penis like she sucked her thumb, which she did.	4 years	6 months
19	Indecent Act in the Presence of ER	Called complainant into bathroom and locked the door. Got into bath and played with his penis in presence of complainant.	12 months
20	Indecent Act with ER	Following count 19, asked complainant to wash his penis, which she did.	12 months	3 months
21	Indecent Act in the Presence of ER	Called complainant into bathroom and asked if she had seen ‘white stuff’ before. Masturbated and ejaculated in presence of complainant.	12 months	3 months
22	Indecent Act in the Presence of ER	Called complainant into bedroom. He was lying on bed naked and was playing with his penis.	12 months
23	Incest with ER	Following count 22, instructed complainant to fellate him which she did.	4 years	Base
24	Indecent Act in the presence of ER	Complainant was asleep in her bedroom. Applicant lay naked across her bed, while playing with erect penis.	12 months	3 months
25	Indecent Act in the presence of ER	While in kitchen, applicant told complainant to pull her knickers to the side while exposed his penis. Touched complainant’s vagina with fingers.	12 months	3 months
28	Incest with ER	Sent other children outside and asked complainant to stay inside and put her nightie on and have her knickers off. Digital penetration of the complainant’s vagina.	4 months	4 months
29	Indecent Act in the Presence of ER	Following count 28, played pornographic video to complainant.	12 months
30	Incest with ER	Following counts 28 and 29, further digital penetration of complainant’s vagina.	4 months	4 months
31	Incest with ER	Following counts 28, 29 and 30, lingually penetrated the complainant.	4 months	4 months
32	Indecent Act with ER	Surreptitiously touched complainant’s vagina while she was watching television.	12 months	3 months
33	Indecent Act with a ER	While in lounge room, pulled complainant’s knickers to the side and rubbed her vagina.	12 months	3 months
35	Indecent Act with ER	While in family swimming pool, touched complainant’s vagina underneath her bathers before throwing her into the air.	12 months	3 months
36	Indecent Act with ER	While in family swimming pool, touched complainant’s vagina over her bathers while she was on his lap.	12 months
37	Indecent Act in the Presence of ER	While mother out and ER playing outside, called ER to window of bedroom, and exposed and touched his penis. Applicant told ER to touch his penis and she refused.	12 months	3 months

8 This amounted to a total effective sentence of eight years and nine months’ imprisonment and the judge fixed a non-parole period of five years and nine months.

9 In addition to their evidence about the offences, both AR and ER gave evidence of a number of uncharged acts. The evidence relating to these acts is summarised in the following tables.

Summary of AR’s Evidence on Uncharged Acts
1	On a hot night when her mother was out, the applicant suggested that she go ‘skinny dipping’ with him in the pool. When he told her this meant going naked in the pool she refused.
2	On a number of occasions, he asked her to pull her knickers up, exposing her vagina or making it bulge. He would masturbate at the same time.
3	When he was drunk, he came into her room naked and tried to get in her bed. He said ‘sorry I thought you were mum’ and got out of the bed and went back to his room.
4	He slapped her across the face when she tried to stand up to him and swore at him.
5	While the other children were outside, he locked the doors of the house. He let her in to go to the toilet and she saw him watching a pornographic video. He asked her to sit and watch it with him.

Summary of ER’s Evidence on Uncharged Acts
1	When the applicant was sitting in the kitchen, he made her grab his penis. He did so two or three times a week.
2	When the applicant was sitting at the kitchen table, he would attract ER’s attention and she would see his penis poking out of his shorts.
3	The applicant would come into complainant’s room and wake her and take her to the kitchen where he would touch her vagina over her knickers.
4	On another occasion, he called the complainant to the kitchen, touched her vagina and looked and stared at it and masturbated.
5	On several occasions in the lounge room, he put his hand under her knickers and touched her.
6	On a number of occasions, the complainant was required to masturbate the applicant when driving to the milk bar. He used to give her money.

10 AR said that the offending generally occurred when her mother was out at work or playing bingo. ER said the applicant would look after the children when her mother was working at night or went to bingo, and that a number of the counts occurred when her mother was out.

11 Each of the complainants gave evidence that they were frightened of the applicant, who assaulted their mother and abused them. AR said that the applicant would get drunk, punch her mother and throw heavy things at her mother. On one occasion when she tried to help her mother, he had backslapped her in the chest and she had gone flying across the kitchen. On another occasion when she had tried to stand up to him, he had punched her and slapped her face. AR also said that the applicant frequently verbally abused ER and that ER would become hysterical when AR’s mother took her (AR) to bingo, so that ER was left at home with the applicant. ER said she always wanted to go to bingo with her mother and AR because she did not want to be left at home with the applicant. She said she would beg her mother to take her with them.

12 ER said that she had observed the applicant verbally and physically abusing her mother, that he had verbally abused her and that she was frightened of him. On one occasion, she woke up and found him lying naked across her bed and she had threatened to tell her mother. He had told her that if she ever told her mother what he was doing ‘that she’d hate me and that she would hate him and that she would throw us out’.

Appeal against Conviction

Grounds 1A and 1B

13 These grounds were as follows:

1A. A substantial miscarriage of justice was occasioned by trials on:
(a) Charges 1, 2, 4, 5 and 9 (‘the [AR] charges’); and
(b) Charges 10-13, 16, 18-25, 28-33 and 35-37 (‘the [ER] charges’)
having been tried on the one indictment and in the same proceeding.
1B. Further and alternatively to Ground 1A, a substantial miscarried [sic] of justice was occasioned by:
(a) the late service upon the Defence, by the Prosecution, of the Tendency and Coincidence notices upon which it sought to rely;
(b) by reason of (a) the deferral of argument on the admissibility and proposed use of the alleged tendency and coincidence evidence until after the close of the Prosecution case.

The trial

14 The applicant was committed for trial on 24 March 2009, so that ss 371 and 372 of the Crimes Act 1958 (‘Crimes Act’) governed issues of joinder and separate trials.[1] Defence counsel did not apply under s 372(3) of the Crimes Act to have the counts relating to the two complainants tried separately.

15 The Crown had foreshadowed its intention to have the evidence of each complainant treated as cross-admissible at a directions hearing before the Chief Judge on 31 August 2009. This occurred before the commencement of ss 97 and 98 of the Evidence Act 2008 (‘Evidence Act’), which required the Crown to give the applicant reasonable notice in writing of the intention to adduce such evidence. The Crown served tendency and coincidence notices under ss 97 and 98 of the Evidence Act on Friday, 4 June 2010. The trial commenced on Monday, 7 June 2010.

16 Defence counsel did not seek an adjournment of the trial because of the late service of the tendency and coincidence notices. In preliminary discussion with the trial judge, defence counsel indicated that he would be prepared to ‘wait to hear what the evidence was before Your Honour had to make a decision’ about the cross-admissibility of the evidence led in support of the count against each of the complainants. His Honour said that he might wish to give the jury a short direction on these matters and defence counsel said that he did not yet know what the complainant ER was going to say.

17 Defence counsel then said that ‘[t]he cross-reference issue, Your Honour, in my submission, does not arise until we’ve actually heard the evidence itself’.

18 The prosecutor submitted that the judge was in a position to rule immediately on admissibility of the tendency and coincidence evidence but that he was ‘content to let the matter unfold’ as defence counsel proposed. He also sought leave to abridge the time for serving the tendency and coincidence notices.

Counsels’ submissions

19 On appeal, counsel for the applicant submitted that the judge should have ordered separate trials relating to the two complainants. He also submitted that there had been a miscarriage of justice because his Honour had permitted the Crown to rely on tendency and coincidence evidence despite the late service of the tendency and coincidence notices and because the judge had not ruled on the cross-admissibility of the evidence until after the complainants had testified.

20 Counsel for the Crown submitted that the applicant’s failure to seek severance of the AR and ER counts precluded him from arguing that this had resulted in a miscarriage of justice. Although the tendency and coincidence notices had been served only shortly before the trial commenced, this had not led to any miscarriage of justice because the applicant’s defence counsel did not apply to have the notices set aside or seek an adjournment of the trial and it had been foreshadowed for many months that the Crown would be relying on tendency and coincidence evidence at the trial.

Conclusion on grounds 1A and 1B

21 For the reasons given below, we consider that the evidence of the complainants as to the applicant’s charged and uncharged sexual acts against them was admissible as both tendency and coincidence evidence. However, even if we are wrong in that view, the applicant’s failure to seek separate trials of the offences relating to each complainant would be a significant barrier to his success on ground 1A.

22 Section 372 ( 3AA) and ( 3AB) of the Crimes Act provided as follows:

(3AA) Despite subsection (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together.
(3AB) The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.

23 Rule 2 of the Sixth Schedule to the Crimes Act further provided that:

Charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character.

24 Even if the evidence of one complainant was not cross-admissible as tendency and coincidence evidence in support of the counts against the other complainant, a jury direction that the evidence of one complainant could not be taken into account in deciding whether the applicant was guilty of the offences against the other complainant would have been sufficient to overcome any prejudice which might otherwise have occurred because the counts relating to AR and ER were tried at the same time. Such directions are often given in sexual offences cases involving multiple complainants and there is no reason to consider that they are not followed.[2] Accordingly, ground 1A fails.

25 We take the same view of ground 1B(a). Under s 100 of the Evidence Act, the court has power to dispense with the requirement that tendency and coincidence notices be served, as required by ss 97 and 98 of that Act.

26 In the discussion between his Honour and counsel at the beginning of the trial, the prosecutor conceded that the notices should have been served earlier but said he had advised the Court and defence counsel on 31 August in the preceding year that the Crown would be arguing that the evidence was cross-admissible. At that stage, there was no requirement to serve tendency and coincidence notices, because the Evidence Act was not yet in force. His Honour then stood the matter down for a little over an hour to give defence counsel time to consider his submissions on the matter. In his ruling on the cross-admissibility of the evidence, the judge also noted that the defence had been alerted at the committal that the Crown intended to argue that the evidence was cross-admissible.

27 There is no basis for concluding that the exercise of his Honour’s discretion to admit the evidence despite the late service of the notices resulted in any miscarriage of justice, in circumstances where the judge asked defence counsel how long he needed to consider the issue and defence counsel did not seek any adjournment.

28 Nor, in our opinion, did the postponement of the argument on the cross-admissibility of the complainants’ evidence until after completion of the Crown case give rise to any miscarriage of justice. Such a ruling is usually sought at the commencement of the trial, because this will shape the way the prosecutor runs his or her case. However, as Simpson JA noted in R v Fletcher,[3] a ruling on whether to admit tendency evidence (or coincidence evidence) must usually be made prospectively on the basis of statements that are likely to be made by the relevant witness, rather than after the witness has given his or her evidence. As a consequence, the trial judge’s decision to admit tendency or coincidence evidence may, with hindsight, result in a miscarriage of justice, because of the nature of the evidence which is subsequently given at the trial. It follows logically that the postponement of the ruling until after the complainants had given their evidence could not of itself amount to a miscarriage of justice.

29 In this case, the fact that the judge ruled on the admissibility of the evidence after the complainants had given their evidence enabled him to take account of their actual evidence, rather than the evidence which it was anticipated they would give.

30 The judge warned the jury at the commencement of the trial that the offences relating to the two different complainants were being tried together as a matter of convenience. He said he would ‘give you some more details about how to treat the evidence’ and that they had to consider each count separately and not treat the counts as a ‘job lot’. He then again said that in his final directions he would come back to the way that they should treat the evidence. There was therefore no risk that the jury would treat the evidence they heard before he gave his ruling as cross-admissible, until his Honour told the jury that they could do so.

31 For these reasons, ground 1B(b) must fail.

Grounds 1C and 1D

32 These grounds were as follows:

1C. Further again to Grounds 1A and 1B, and alternatively to Ground 1A, the trial Judge erred by ruling that all charged and uncharged acts the subject of each complainant were probative of the charges in respect of the other complainant by demonstrating on the part of the applicant a tendency to do something unusual, namely, to engage in sexual acts with two of his stepchildren.
1D. A substantial miscarriage of justice was occasioned by the trial judge’s directions with respect to the charged and uncharged acts relied upon by the prosecution as relationship, context, tendency and coincidence evidence; and in particular, the trial judge:
(a) incorrectly left to the jury the evidence as being capable of demonstrating “a similar modus operandi or similar pattern of behaviour”, or “a pattern of a tendency to act in a particular way” as between the two complainants;
(b) conflated his directions on tendency and coincidence with the directions which ought to have attached to the uncharged acts led in proof of relationship or context only; and
(c) expressly or tacitly invited the jury to engage in impermissible propensity reasoning or insufficiently guarded against propensity reasoning.^[4]

33 As the trial judge pointed out, the tendency notice and, to a lesser extent the coincidence notice, lacked specificity. The tendency notice said only that:

The tendency sough[t] to be proved is the tendency of [DR] to act in a particular way, namely to engage in sexual acts with two of his stepchildren [AR] and [ER].

34 It then set out the age of each of the complaints at the time of the offending behaviour, the various homes where the applicant had lived with the complainants and was said to have offended against them and described the evidence relating to the particular counts and uncharged acts against each child. The uncharged acts were said to be evidence of the applicant’s ‘attraction’ to the complainants.

35 The coincidence notice said that the evidence was sought to be adduced to prove that the applicant did the relevant acts, on the basis of ‘the improbability of these events occurring coincidentally in each case’. It said that it was ‘improbable that the two Complainants would give accounts of happenings having that degree of similarity unless those happenings occurred,’ and referred to ‘the improbability of different witnesses independently inventing or fantasising such similar allegations against the same person’.

36 The particulars of the coincidence notice referred to the following alleged facts.

Both the complainants were the applicant’s stepdaughters;
The complainants were of similar age and were female;
The offences occurred in the home;^[5]
The applicant was in a position of trust generally and while his wife was not at home;
The similarity in the nature of the offending, which included touching both the complainants’ vaginas, exposing his penis to both complainants, rubbing his penis on the complainant (AR only), requiring the child to touch or suck his penis (ER only) and digital penetration of ER.

37 The basis for the admission of the tendency and coincidence evidence was elaborated during the trial. The prosecutor relied mainly on the argument that the evidence was cross-admissible as coincidence evidence. He drew attention to similarities between the evidence given by each sister as to the applicant’s use of the term ‘white stuff’ to describe ejaculate, in the context of count 2 (AR) and count 21 (ER), the fact that the offences occurred in the family home where the applicant was able to control the complainants, the fact that the offending usually occurred when the complainants’ mother was at work or at bingo, and the fact that many of the actual offences were of a similar nature.

38 In relation to tendency, counsel submitted that there was a sufficient degree of underlying unity linking the applicant’s behaviour on different occasions for the evidence to be admissible to prove the relevant tendency. Each of the complainants had given evidence that they were frightened of the applicant because he had assaulted their mother and threatened or assaulted the particular complainant. The applicant had used fear to dominate them.[6]

39 Defence counsel submitted that the evidence was not cross-admissible as coincidence evidence. ER’s evidence was that she had resisted the applicant on some occasions. Thus, it could not be said that there was a common pattern of domination by the applicant. There was no striking similarity between the sexual acts or the circumstances in which they occurred and there was a substantial risk that each complainant had contaminated the evidence given by the other complainant.

40 The judge ruled that the evidence was admissible as both tendency and coincidence evidence and that the probative value of the evidence outweighed any prejudice to the accused. In his reasons, the judge noted that in argument the Crown had relied on the evidence of violence by the applicant against the complainants’ mother in their presence and the fact that the charged and uncharged acts occurred in a context where the accused was in a position to assert domination over the complainants showing a ‘prolonged course of conduct which even in the absence of any features of striking similarity made the evidence in relation to one complainant admissible in relation to the offences charged against another’. He then referred to similarities in the nature of the offending, and said the following:

In GBF^[7] the court had noted that sexual offending in a workplace was unusual. The evidence relied on by the Crown, which is the evidence relied on for each count on the presentment, and the relationship evidence and uncharged acts evidence set out in Ruling Exhibit A does, I am satisfied, establish a tendency to do something unusual by the accused, namely to engage in sexual acts with two of his stepchildren. That tendency can be gleaned from the accumulation of evidence which includes the intrafamily violence, the opportunistic exploitation of particular occurrences where the accused had physical control over the complainants, or was in a position to exercise domination over relatively young girls. In addition, there are certain specific events which have a high degree of similarity such as the “white stuff” incident, and the staring or observing the vaginal area, and the offer to watch a pornographic movie.
The reasoning in GBF supports the Crown case here in that sexual offending by a person exploiting the circumstances within his control in the workplace was regarded in that case as unusual and gave rise to a ruling that the evidence was crossadmissible. Similarly in NAM’s case^[8] the evidence was held to be crossadmissible.
In NAM at paragraph 20 the Court said:
The sentencing judge (sic) concluded that this was: a case where the circumstances surround (sic) the discrete acts of offending arise from a general scenario described by each complainant in terms that have the necessary underlying unity and linkage to provide the probative force required both as to admission generally of evidence of tendency and coincidence, and as to admission specifically in a criminal trial.
Maxwell P went on:
In my opinion her Honour was quite correct in that conclusion. This evidence has, for the reasons given, significant probative value so as to satisfy the gateway requirement in s.98(1) and 97(1). Moreover, it has such probative value, in my opinion, as substantially to outweigh the prejudicial effect of having the evidence of one complainant crossadmissible in relation to the counts referable to the other complainant.
[Maxwell P] went on to refer to Director of Public Prosecutions v P.^[9]
Here I am satisfied that the evidence that was sought to be led by the Crown as tendency evidence does have significant probative value, and pursuant to s.101 that significant probative value substantially outweighs any prejudicial effect to the accused.
The prejudicial effect is to be assessed on the basis that the jury may misconstrue the evidence and in Ford^[10] Campbell JA at paragraph 56 said:
The unfair prejudice referred to in s.137 is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case. If that were so, then the more powerful the evidence was in showing the guilt of the accused, the greater would be the difficulty of the Crown in putting the evidence before the jury. Rather, the unfair prejudice referred to in section 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.
There are some cases referred to and it goes on:
In Suteski^[11] ... Wood CJ at CL ... said that the prejudice referred to in section 137 meant “damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves”.
I am not satisfied in this case that a properly instructed jury would engage in that use of the evidence. Thus, I am satisfied that the requirements for its admissibility under s.101 are met.
For similar reasons I reach the same conclusions in relation to the evidence sought to be admitted pursuant to the coincidence notice filed by the Crown.
I therefore allow the evidence to go to the jury on that basis.

41 In his charge, the judge first told the jury how they could use AR’s evidence of uncharged acts in support of the counts relating to AR:

So what the Crown is saying, is that when you look at all the evidence of [AR] - in relation to [AR] - the counts, the events involving the counts and the events involving the other events, the uncharged acts - that shows, when you look at that, it shows a pattern of conduct, or what the Crown says it shows that he is a person who has a tendency to act in a particular way, namely to engage in sexual acts with [AR] and then when you look at the events involving [ER], the same pattern of conduct involving [ER].
The Crown wants to ask you to deal with the evidence in two ways. (1) They want to say that the evidence of the uncharged acts in relation to [AR] provide - when you are looking at the evidence associated with [AR], the counts, the particular counts, that allows you to put that evidence in a complete and realistic context so it puts the evidence, the uncharged acts show that he had a sexual interest in [AR] according to the Crown and so that is put by – you can use that evidence.
The fact that he had an interest in [AR], if you accept that evidence, to put the evidence in relation to the counts in a realistic context and setting and understand why she might not have resisted him or submitted to his conduct and also to show that the circumstances of the alleged, particular offences involving [AR] did not occur out of the blue.
The Crown says you can also use that evidence of the uncharged acts, as to show that he had a sexual interest in the complainant, the particular complainant [AR], so that is when you are considering the evidence and all the counts involving [AR].
The same applies in relation to the evidence of [ER]. So the other events that are not on the presentment show an interest, a sexual interest in [ER] and you can use that evidence to put the actual events in a proper context, a realistic setting.

42 His Honour then told the jury how they could use the evidence of uncharged acts and counts affecting AR in support of the counts involving ER and vice versa. He said:

The question you have got to ask is does the evidence establish that the accused had a sexual interest in the relevant complainant, [AR], and does it make it more likely that he would have committed the particular offence you are considering against [AR] and then does it make it more likely that he committed the particular offence you are considering against [ER] and vice versa?

43 The judge gave the jury a propensity warning in the terms set out below and then went on to direct the jury on use of the coincidence evidence:

Now I want to direct you how to consider the evidence in another way, the evidence that I have been referring to; the evidence in relation to the charges against [AR] and the uncharged events against [AR], the evidence of [ER] and the uncharged events against [ER], those two bodies of evidence. What Mr Heath put to you yesterday, he said when you look at that evidence, the evidence relating to [AR] and the evidence in relation to [ER], there is a similarity there, a strong similarity, and he points to a number of matters that show a similarity.

44 The judge then referred to the submissions made by the prosecutor and defence counsel in the closing addresses and continued as follows:

The Crown says it is improbable that all these events occurred by coincidence, the events alleged by [AR], the events as alleged by [ER]. Instead, the prosecution wants you to use the unlikelihood of coincidence to infer that in fact the offences were committed and to infer that is reason that the two complainants have given truthful evidence. So that involves drawing an inference from the evidence. So you have got to be satisfied of the evidence beyond reasonable doubt and then draw an inference from it.
As I said to you before, when you are drawing an inference in a criminal trial you may only draw an inference as part of the prosecution case if it is the only reasonable inference to be drawn from the facts. You can only infer that the two complainants have given truthful evidence if you are satisfied beyond reasonable doubt that the complainant’s accounts are so similar that they cannot be explained by coincidence. In such a situation, you might infer that the only reasonable explanation for the similarities is that each of the complainants is telling the truth.
As I said, the defence suggested that the evidence is not independent, it is not true and I referred to what Mr Robertson put to you about their opportunities, the concession by [AR] that they had discussed it so that it is contaminated or there has been collusion or unconscious influence of each other. The prosecution, Mr Heath, said when you look at the evidence it was clear that on the day they actually made the complaint, [ER] said “I've been sexually abused”, [AR] said “I too”, the mother took them straight down to the police station and so there was not an opportunity for them to get together and discuss it.
It is for you to decide whether or not [AR] and [ER] were telling the truth. However, you may only draw an inference from the fact that they all gave similar accounts if you are satisfied beyond reasonable doubt that their accounts were not contaminated in any way. If you think that there is a possibility that they discussed it with each other, and so there has been crossfertilisation, then you may not draw that inference. ...
So the question for you, as I said, in relation to what I said about this evidence when you consider it as a pattern of conduct, the question for you is does this evidence establish that it is improbable that these similarities arose by coincidence and does this then make the evidence about the charges on the indictment more likely? So that is the question you have got to ask yourself.

45 In the part of his charge dealing with tendency and coincidence evidence, the judge twice warned the jury against impermissible propensity reasoning. He first told them that they must not use the evidence of a count which they were not considering or of an uncharged act:

to reason that if the accused man did the charged acts, that he must have committed the other offence, the offence that you are considering. It would be wrong to simply typecast him, as I say.
You must not do that. You must not conclude that if he did Count 1, then he must have committed Count 4 for example. You are not to do that. You are not to act in a prejudiced way against the accused. You must focus on the evidence on each individual count, Count 1 and Count 2 and not substitute the evidence of Count 4 to say “Look, we have got evidence on Count 4, lets forget about the particular evidence on Count 1.” You have got to not substitute the evidence of the other evidence that is being led in relation to other counts, for the evidence on the particular count you are considering.

46 The judge returned to that issue after directing the jury on the coincidence issue. He said:

I have got to tell you how cannot use [sic] [the evidence of the complainants] it, that is the way you can use it, but you cannot use it to typecast [DR], that because he has committed some offences against one complainant that he must have committed the offences against the other complainant or done it again. If you accept the evidence, you must not use it in a prejudicial way. You cannot use it, as I said, to typecast him or assume that he has committed all the acts. You have got to focus on each of the individual counts against him. You must not substitute this evidence for the evidence in relation to the specific charges. You can only convict him if you are satisfied of the counts on the indictment, each count considered separately, beyond reasonable doubt.

Counsel’s submissions on grounds 1C and 1D

47 Counsel for the applicant submitted that the judge had wrongly examined the question of whether the evidence of charged and uncharged acts was admissible as evidence of tendency or coincidence in a global way. Instead, he should have considered whether the evidence relating to a particular count against one of the children was tendency or coincidence evidence which could be relied upon in support of a count relating to the other child.

48 Counsel for the applicant argued that there were no distinctive features or marked similarities in the alleged sexual acts, such as existed in NAM v The Queen,[12] and that in the absence of such distinctive features, the evidence of each complainant about charged and uncharged acts was not admissible as coincidence evidence. Insofar as there were similarities between the various incidents, these were ‘for the most part, features which would characterise many or most cases of sexual offending against a young female’.

49 It was also submitted that the evidence was not cross-admissible as proof of tendency because it did not show a ‘pattern of conduct’ or ‘tendency to act in a particular way’. The alleged sexual acts were a commonplace feature of sexual offending. The applicant had been charged with oral and digital penetration of ER, but neither of these activities was the subject of any alleged offence against AR. There was said to be an absence of any ‘modus operandi or similar pattern of behaviour’, which was required before evidence could be admitted to prove tendency.

50 Under cover of ground 1D(b), the applicant argued that the trial judge’s directions about uncharged acts and similarity were ‘confusing overall, in parts inconsistent, and in other parts simply wrong’. In particular, the directions were said to have run together the use of uncharged acts as evidence of relationship and context with issues of tendency and coincidence.

51 Under cover of ground 1D(c), counsel submitted that the judge had failed to give the jury an adequate warning against propensity reasoning and that his direction that the evidence relating to particular counts could not be used to ‘typecast [the applicant] or assume that he has committed all the acts’ would not have been understood by the jury. His Honour should have given a firm direction that they must not reason that because the applicant had engaged in sexual conduct with one of his stepdaughters on a particular occasion, they should not reason that he was ‘the kind of person’ likely to do so on the other occasions charged.[13]

52 In response, counsel for the Crown submitted that the evidence was highly probative in relation to both coincidence and tendency. The applicant was the stepfather of both of the complainants. The offences took place in the family home, usually when the mother was absent and the complainants were both young girls of similar age when the offending commenced. The applicant took advantage of his ability to dominate the children in order to sexually abuse them. Although the applicant was alleged to have sexually penetrated ER (counts 18, 23, 28, 30 and 31) but not AR, there were similarities in relation to each of the other counts, which alleged the applicant had touched the relevant complainant’s vaginal area, exposed his penis and masturbated in the presence of the complainant. Each of the complainants gave evidence that they submitted because he had beaten their mother, and threatened them. There was a sufficient connection in the time and circumstances of the offending to render the evidence of one complainant admissible in support of the evidence of the other.[14]

53 So far as coincidence was concerned, there were said to be considerable similarities between the charged and uncharged acts alleged by each of the complainants. These included the applicant’s description of ejaculate as ‘white stuff’, the fact that each complainant gave evidence that he had told them to pull up their knickers so that he could look at their vaginal areas before touching them on a number of occasions, the applicant’s viewing of pornography in connection with an offence or an uncharged act and the general similarity between the sexual acts.

54 In relation to ground 1D(c), the respondent submitted that the judge’s instructions set out above satisfied the essential requirements of a Grech warning. Counsel also submitted that although each complainant had told the other that they had been sexually abused by their stepfather, each had also denied in cross-examination that they had discussed the details of the offending and the judge had warned the jury that if there was any possibility that the evidence of one complainant was ‘cross-fertilised’ by the evidence of the other, they could not treat it as evidence of the alleged coincidence or tendency.

Conclusion on grounds 1C and 1D

55 In our opinion, the judge’s ruling that the evidence of AR and ER relating to the charged offences was admissible as both tendency and coincidence evidence was correct. We also consider that, subject to the exception discussed below, the judge correctly ruled that the evidence of uncharged acts was cross-admissible for the same purposes.

56 Section 98 of the Evidence Act deals with the admission of the evidence as coincidence evidence. Sub-section (1) provides that:

Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless
...
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

57 Probative value is defined in the dictionary to the Evidence Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.

58 The criterion for determining whether the evidence is admissible is the similarity of the circumstances in which the offending occurred or of the offences themselves. Whether the evidence had significant probative value as coincidence evidence is a question of fact, which can only be determined by reference to the facts and circumstances of the particular case.[15] It follows that reference to other decisions on this issue is of limited assistance.

59 There was clearly considerable similarity between some of the counts and some of the uncharged acts alleged by the two complainants. The first of these similarities was apparent from the complainants’ evidence that on a number of occasions, the applicant stared at their genital areas without removing their pants, before or at the time that he touched their private parts or masturbated.

60 AR’s evidence in relation to counts 1 and 2 was as follows:

we were all in bed, and when he went to his room he called out my name. And so I would go to him and he was standing there, in his towel, and he would ask me to lift my nightie up and make me pull up my knickers up over my hips so that he could see my vagina, or, you know, um, bulging out, and then he would use his fingers to touch my vagina, and he did that most of the times.

61 AR gave similar evidence in relation to counts 5 and 9. She also gave evidence of an uncharged act occurring at their home in Langwarrin when the applicant:

masturbated again and he would always still do the touching my vagina over my knickers and make me put my knickers up high over my hips again.

62 AR said that the applicant made her pull her knickers up, to expose her vagina, or make her vagina bulge, on more than one occasion.

63 This was similar to ER’s evidence about count 25. ER said:

he used to come in my room and wake me up and take me out to the kitchen, and he would sit at his chair at the end of the table, and he, um, would make me stand there and he would grab his hand and he would touch my private parts over my knickers.
[This is your vaginal area?] Yeah. He did that – and then on another occasion, he called me out there and he – he would put his hands on my private parts and rub it while he had his hand on his penis.
[Rubbed your private parts while he had his hand on his penis, is that what you're saying?] Yeah. He'd just be looking not at me, at my private parts, he'd just be looking and staring, and then he would just let me go to bed.

64 A further similarity is apparent in the applicant’s question to each of the complainants about ‘white stuff.’ AR’s evidence about the events accompanying counts 1 and 2 was that:

[H]e said to me, “Do you know what white stuff is?” And I said, “No.” And he said to keep standing there with my knickers up high, and that’s when he started to masturbate, and he grabbed the towel and put it underneath his penis, and then he ejaculated into the towel as he was touching [my vagina], as well.

65 ER gave evidence in relation to count 21 that:

On another occasion I remember walking in; he’s called me in to the bathroom and he was standing near the basin and there was a towel on the toilet and he was playing with his penis and he asked me if I’d ever seen white stuff before and I didn’t know what that was and he made me stand there and watch him ejaculate into the basin and then he let me go.

66 A further similarity identified by the Crown was AR’s evidence of an uncharged act in which the applicant asked AR to watch a pornographic movie and the evidence given by ER in support of count 29. AR’s evidence was as follows:

there was one time. It was summer and all us kids were out in the pool, and I needed to go to the toilet, and I ‘member knocking on the doors and they were all locked, and when he answered the door I said it was me. He let me go to the toilet, and as I ran past the lounge room to go to the toilet, I seen a porno on the TV in the lounge room and he was standing there in his towel. I ran straight to the toilet, and as I came back out, he stopped me to ask me to sit and watch it with him. I got really scared and ran straight back outside.

67 ER’s evidence in relation to count 29 (as well as counts 28 and 30) was as follows:

He told me to go put a nightie on and with my knickers off.
[Did you do that?] So I went and did that, then he told me to sit on the lounge room couch. It was a three-seater and I was at the end, on the right side, and then he sat on the couch. And he sat down – and he used to lie on the couch with his legs drawn up so that I could fit behind it. And then he put his finger into my vagina and was moving it in and out – not all the way, just a little bit. He did that for a bit and it hurt. It was – pushing at it – it was really hard and it was stinging. And then he got up and he asked me if I wanted to watch a movie, and he got up and he went to his bedroom. And he came back and he put a video in the video player. And when it came on it was a porno.
[What did you see?] I saw a woman sucking on another man’s penis. And then he sat back on the couch. He was putting his finger in my vagina again – and out
[Put his finger in your vagina again?] Yep, and then I, sort of, like, crouched up, like, trying to get further away from – to the end of the couch. But it was an old couch, and the couches – they, sort of, sunk in, so the wall – like, the armchair of the couch couldn’t – I couldn’t go any further to my back, being little. I was, sort of, like, just stuck in the corner, and he was on the couch with his, sort of – his knee on the floor and one up on the couch, like, out – oh God – then he, um – he opened up my vagina with his hands, and then he put his tongue in my vagina and I remember he was putting it right in and it was really hurting, and it was stinging. And he kept doing that. He kept doing that and then he stopped. He got off. He turned off the porno – told me to go put some knickers on and to sit back on the couch, and he called my brother and my sister back inside. And then it was bed time so we had to go to bed.

68 There is also some similarity between ER and AR’s evidence that the applicant came into their bedrooms and that the applicant lay on a bed naked with an erection in front of the particular complainant, either in his own bed room or in the complainant’s room.

69 As to count 24, ER said:

[DR] used to come in the bedroom, on one incident he came in and I was asleep and I felt this heavy feeling across my legs and I woke up and he was lying naked across my bed and he was drunk and I was just so scared and I just quickly got up from the bed and I went right up to the top of the bed and I pulled my legs up and it was like this – and I said, “I don’t want – I’m going to tell mum, please, don’t,” and he got angry and he said, “Don’t you dare tell your mother,” and he said that she would hate me and that she would hate him and that she would throw us out and he got up and he left the room.
...So that’s me lying straight and that’s him lying with his head – because my bed was against the wall and his head was there and his legs were there hanging over the bed lying across my legs and he was naked.
[Did you notice anything about his penis?] It was erect.
[Was he doing anything with it?] He was playing with it.

70 She gave evidence of other uncharged acts which occurred after the applicant came into her bedroom and then took her to the kitchen.

71 AR said that:

he asked me to come in and give him a kiss goodnight and he was laying on his bed naked and I saw his penis erect again and he tried to make me lay on top of him and I kept falling to each side each time and he would put me to go – the top of me above him again and I could feel his erect penis rubbing over my tummy and then after that I just got out of the room and went straight back to bed.

72 Although this was not conceded by the applicant, these similarities would, at the very least, provided clear justification for:

AR’s evidence about the applicant looking at her vagina and her evidence of his reference to ‘white stuff’ (counts 1 and 2 and uncharged acts) to be admissible as coincidence evidence in relation to counts 21 and 25 (ER) and vice versa;
AR’s evidence of an uncharged act in which the applicant invited her to watch a pornographic movie with him to be admitted as coincidence evidence in support of count 29.

73 However, in our opinion, it would border on the metaphysical to treat the evidence as cross-admissible only in support of those counts.[16] In NAM v The Queen,[17] where one child gave evidence that the applicant had prevailed on her to insert a banana into his anus and the other child gave evidence that the applicant had himself put a banana into his own anus, the Court did not limit the cross-admissibility of the children’s evidence about the sexual offences committed against them to the particular counts relating to the use of a banana.

74 Further, as in NAM, there were other important similarities in the context of the offending. In NAM, Maxwell P observed that ‘the scope of relevant similarities...is not confined to the particular sex acts performed, or the manner in which they are performed’.[18] The similarities here included the fact that all of the charged offences and all except one of the uncharged acts occurred in the home of the applicant and the complainants, that the complainants were his stepdaughters, that both complainants were below the age of puberty when he began offending against them, and that the offences occurred in the context of violence and verbal abuse of the complainants’ mother and the two complainants. In the latter respect, the case is similar to DPP v P,[19] where the evidence that a father had committed sexual offences against one daughter was admitted as evidence that he had committed similar offences against another daughter, in a context where he had controlled and dominated each of them.

75 The main difference between the evidence of the complainants was that unlike ER, AR did not allege that she was subjected to digital penetration or forced to fellate the applicant. As we have said, this does not necessarily preclude the evidence being admitted as coincidence evidence. We note, however, that there were considerable similarities between many of the counts and all except one of the uncharged acts. All except the incest counts (18, 23, 28 30 and 31) involved the applicant touching the complainants’ private parts (usually while they kept their pants on), exposing himself, requiring them to touch or masturbate him, or masturbating in their presence. The only uncharged act against AR which has no counterpart in the offending against ER was the invitation to ‘skinny dip’.

76 The evidence of these similarities could not have been relied upon as coincidence evidence if there was a reasonable doubt about whether it was the product of collusion or if one complainant was unconsciously influenced by the other. Both complainants were cross-examined about whether they had discussed the offences against them and both denied that this was the case.

77 AR said that when she was 12 or 13, she had seen a television advertisement which had referred to standing up against sexual abuse. She thought that if she stood up, her mother (who was watching television with her) would notice, but her mother did not. She had then told her mother that she had been abused, but her mother had believed the applicant that this had not occurred. She had made a statement to the police in 2000, but had then withdrawn it on the basis that her sister was struggling to come to terms with the fact that she had also been abused and was not yet ready to come forward.

78 ER said she had told a woman with whom she was living about the sexual abuse and ‘[AR] sat there and she was crying and she said that it happened to her and that’s as far as it went’. At that stage, she was not ready to talk to the police.

79 In cross-examination, ER was asked whether she was ‘adamant’ that she spoke to nobody about any of the circumstances of the sexual abuse and she said ‘yes’. Leading Senior Constable Jacinta Lane gave evidence that she had spoken to ER after she had been contacted by her mother on 25 April 2000. ER had told her that the abuse had occurred, but that she wanted to seek counselling before coming forward to the police and would contact the police when she was ready.

80 In R v Shamouil,[20] the New South Wales Court of Criminal Appeal said that the credibility of evidence is not relevant when weighing up the probative value with the prejudicial effect of the evidence. In considering whether the evidence has significant probative value, the judge should presume that the evidence will be accepted by the jury. It is not appropriate to consider the weight that a jury might attach to the evidence.[21]

81 In our view, there was no evidentiary basis on which the judge could have concluded that the evidence should be excluded because of collusion or contamination. His Honour correctly took the view that it was for the jury to decide whether the complainants were credible and reliable witnesses. Further, the jury were correctly directed that they could only use the evidence as proof of tendency or coincidence if they were satisfied beyond reasonable doubt of the truth of their allegations.

82 In R v PJO,[22] Buchanan JA said that:

The trial judge concluded that there were sufficient common elements in the evidence of the complainants to render the evidence of each complainant “strongly supportive of the truth” of the evidence of the other complainants. The common elements included the relationship of each complainant to the applicant, the opportunity given to the applicant by each complainant living in the applicant’s house, the fact that the assault against each complainant in the applicant’s house occurred when the applicant’s wife was asleep or absent and the youth of most of the complainants when the offences occurred. In my opinion no error has been shown in the trial judge's determination that the probative effect of the evidence rendered it just to admit it despite its prejudicial effect. The evidence disclosed a pattern of conduct on the part of the applicant. He systematically exploited his young sisters-in-law when they came within his sphere of influence...
In the present case the question was whether a crime had been committed, not the identity of the person who had committed an undoubted crime, and in my view, with appropriate directions from the trial judge, it was not unjust to admit the evidence. The improbability of coincidence, from which the evidence derived its probative force, was sufficient to render it just to admit the evidence notwithstanding its prejudicial effect.^[23]

83 In our opinion, the judge correctly ruled that the similarities in the complainants’ evidence of the charged and uncharged acts was such that it was improbable that the witnesses would give such evidence unless the alleged events had actually occurred. For that reason, the evidence (apart from that involving the skinny dipping incident) had such significant probative value that it crossed the threshold requirement in s 98 of the Evidence Act. We also consider that the judge correctly concluded that the probative value of the evidence substantially outweighed its prejudicial effect for the purposes of s 101(2) of the Act.

84 Although the evidence of the skinny dipping incident in relation to AR should not have been admitted in support of the counts against ER, no miscarriage of justice occurred as the result of that admission. Such evidence could have played little or no part in the jury’s deliberations, when considered in the context of the other evidence which was correctly held to be cross-admissible.

85 Having regard to our conclusion on the admissibility of the coincidence evidence in relation to both complainants, we can deal briefly with the submission that the evidence was inadmissible as proof of the applicant’s tendency to sexually assault young girls in his family.

86 Section 97(1)(b) of the Evidence Act provides that evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is only admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind if:

the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

87 Unfortunately, sexual offenders often abuse more than one family member. Perhaps for this reason, courts have historically regarded evidence of ‘common place’ sexual offending as mere evidence of propensity, which does not have significant probative value in establishing a tendency to commit sexual offences. Alternatively, the evidence has been excluded because it has been held that its probative value is outweighed by its prejudicial character.

88 It does not seem to us that the sexual abuse of a child, step child or grand child by their parent, step parent or grandparent is such a common occurrence that it should be regarded as having limited probative value in relation to an allegation that the applicant has abused another child, step child or grandchild.[24] As Hodgson JA said in BP v R, ‘it is unusual for a parent or grandparent to do acts of the kind described by each witness’.[25] We would therefore be inclined to hold that evidence that a person had committed sexual offences against a child, stepchild or grandchild has significant probative value as evidence of a tendency to offend against other children in the family.[26] But in the circumstances of this case, it is not necessary to go so far.

89 As we have said, the evidence in this case went well beyond general evidence of sexual offending. In addition to the matters discussed above, there were other unusual features of the offending, including the complainants’ similar age when the offending began, the context and features of the offences and uncharged acts, and the applicant’s use of fear to make the complainants keep the offending secret. For these reasons, we consider that the judge correctly ruled that the evidence had significant probative value in demonstrating that the applicant had a tendency to act on his sexual attraction to his stepdaughters. The probative value of the evidence outweighed its prejudicial effect.

90 We turn now to the complaint in ground 1D(b) that his Honour’s jury direction conflated tendency and coincidence evidence with the use of evidence of uncharged acts to prove the context in which the particular offences occurred or the relationship between the applicant and the particular complainant. We accept that in his jury charge, the judge first dealt with the use of evidence of uncharged acts to show that the applicant had a sexual interest in the particular complainant and to put the counts ‘in a proper context, a realistic setting’ and then told the jury that they could treat the evidence as cross-admissible to prove tendency and coincidence.

91 Strictly speaking, these matters should have been dealt with separately. The fact that an accused has a particular relationship with one complainant or that the acts against that complainant occurred in a particular context will often be irrelevant to his or her relationship with, or the context in which sexual acts were committed against, another complainant. In such circumstances, the jury would have to be told that the evidence of context or relationship relevant to the alleged offences against one complainant cannot be taken into account in considering the offences against another complainant.

92 We consider that relationship or context evidence specifically relating to one child will sometimes be relevant in showing the relationship between the person accused of sexual acts and/or the context of the sexual acts allegedly committed against another child in the same family. The fact that violence is directed against some family members of which other children in the family are aware may well affect the way they respond to sexual acts directed at them. Similarly, sexual grooming activities of which one child is a particular target may also familiarise other children in the family with inappropriate behaviour, which subsequently makes it easier for the perpetrator to sexually abuse other children as well.

93 In this case, however, it is unnecessary to rely on such reasoning, because the evidence was correctly admitted as tendency and coincidence evidence. Thus, any intermingling in the judge’s charge between the uses which could be made of the evidence of charged and uncharged acts was not productive of any miscarriage of justice. Nor were there other errors in the judge’s directions about the use of the coincidence and tendency evidence, except in relation to the ‘skinny dipping incident’. For the reasons already given, that matter was inconsequential.

94 In our opinion, the direction set out above, in which the jury was told that they should not typecast the applicant, sufficiently warned them against reasoning that if the applicant had committed a particular offence, he was the type or kind of person who must also have committed the other offences.

95 For these reasons, grounds 1C and 1D are not made out.

Grounds 3A and 3B

96 At the hearing of the appeal, the applicant was granted leave to add the following additional grounds of appeal.

3A. A substantial miscarriage of justice was occasioned by the trial judge’s having given directions on the elements of the offences separately from the Charge to the jury.
3B. A substantial miscarriage of justice was occasioned by the trial judge’s having failed adequately or properly to direct the jury on the elements of the offences of which the applicant was found guilty; and in particular, by:
(a) failing altogether to direct the jury on the elements of the offences on the presentment during his charge;
(b) directing the jury on gross indecency in terms which were inadequate or insufficient to arm the jury with so much of the law as was necessary to perform their task;
(c) directing the jury on indecent assault in terms which were inadequate and materially deficient.

97 The judge directed the jury on the elements of the offences in the following manner. On 17 June 2010, before counsel delivered their respective final addresses, his Honour told the jury that they would be given a ‘Jury Assistance Sheet’ and also a document containing transcript references. The latter document guided the jury to the evidence given by each complainant pertaining to each count and indicated that the particular complainant had not given evidence in support of some counts. The document also provided the jury with transcript references to the evidence of each complainant on uncharged acts relied upon by the Crown as evidence of the applicant’s relationship with, or sexual interest in, that complainant.

98 The judge told the jury that the applicant claimed that none of the offences had been committed and that the issue for them was whether the relevant events occurred. His Honour then continued as follows:

So the elements of Counts 1, 4, 5, and 7, which are indecent assault – in order to prove this crime, the Crown must prove three things: one, that the accused assaulted the complainant, [AR] – that means, touched the complainant unlawfully, which means without her consent – second, that the touching or assault occurred in circumstances of indecency, and the third element is that the complainant was, at the time of the assault, under the age of 16. Now, the issue in dispute here is, really, whether the assault occurred – whether the touching that’s alleged in Counts 1, 4, 5, and 7 occurred.
Now, Counts 2, 6 and 9, because it’s not – Mr Robertson is not going to put to you, and hasn’t put to the witnesses, “Look, he might have touched her, but he didn’t touch her on the vagina.” There’s no issue that, if he did touch her, it was indecent – touching a girl’s genital area, or whatever the particular item is.
The second type of count is gross indecency with a person under 16 – Counts 2, 6, and 9, all involving [AR] again. The elements that the Crown must prove beyond reasonable doubt – that he committed the act of gross indecency, committed it with [AR], and that she was, at the time, under the age of 16. So the indecent act here involves masturbation in her presence, or exposing his erect penis.
The third type of offence is an indecent act with or in the presence of a child under 16. They’re counts involving [ER]. Some of them involve an indecent act with [ER]. Some of them involve an indecent act in the presence of [ER]. So committing an indecent act with or in the presence of a child under the age of 16 is a crime. In order to find the accused guilty of this offence, there are six elements, all of which the prosecution must prove beyond reasonable doubt.
The first element relates to what the accused did; the prosecution must prove that the accused committed the alleged act, whether it be touching – having her touch his penis, or masturbating in her presence, whatever the relevant act is – must prove the act. Second, the prosecution must prove it occurred in indecent circumstances. Third, the prosecution must prove it was done with or in the presence of the complainant. She has got to either be touched or be present, there, when he exposes himself, or whatever is alleged. The fourth element the prosecution must prove is that the complainant was under the age of 16. There’s no dispute about that. The fifth element relates to the accused person’s state of mind. The prosecution must prove that the act – the accused wilfully committed the alleged act. Now, “wilful” means intentional, not an accidental act. The sixth element that the prosecution must prove is that the accused was not married to the complainant at the time the alleged act took place.
But before you can find [DR] guilty of committing an indecent act with or in the presence of a child under the age of 16, you must be satisfied that all six of these elements have been proved. The issue in the case is the physical acts: whether she touched him, or he asked her to touch him, or put her hand on his penis, or masturbated in her presence, or exposed his penis...
The final type of offence that’s alleged against the accused is incest – Counts 18, 23, 28, 30, and 31. Incest is a crime. In order to find the accused guilty of incest, there are four elements, all of which the prosecution must prove beyond reasonable doubt. The first element the prosecution must prove – the accused took part in an act of sexual penetration with the complainant. The second element relates to the Accused’s state of mind. The prosecution must prove that the accused intended to take part in the act of sexual penetration. The third element the prosecution must prove is that the complainant, [ER], is the daughter of the accused spouse... The fourth element relates to what the accused knew. The prosecution must prove that the accused knew that the complainant was the daughter of his spouse.
Before you can find [DR] guilty of incest, you must be satisfied that all four of these elements have been proved beyond reasonable doubt. Now, the element in dispute here is whether the offences occurred – taking part in an act of penetration. The first element relates to what the accused did. The accused must have taken part in an act of sexual penetration with the complainant.
The law defines sexual penetration as the introduction of a person’s penis or other body part, including a tongue or a finger, into someone’s vagina. It also includes putting a penis into another person’s mouth. So for this first element to be satisfied, the prosecution must prove that [DR] took part in one of those acts. The law says that both the person who is sexually penetrating and the person who is penetrated are regarded as taking part in sexual penetration.
In this case, the prosecution is alleging [DR] took part in a relevant act of sexual penetration when he committed the acts alleged in relation to the five separate incidents. Counts 18 and 23 are penis in the mouth – separate incidents. Count 28, it’s alleged that he put his finger into her vagina. Again, Count 30 – soon after, again, he put his finger in. Count 31, it’s then alleged that he put his tongue – and licked her vagina after they had watched the video. So the prosecution must prove to you beyond reasonable doubt that those events occurred, and if you find that those events occurred it would be open to you to bring in verdicts of guilty in relation to the incest counts and in relation to the other counts.

99 The written sheets handed to the jury recapitulated the elements to which his Honour had orally referred.

100 The following day, after counsel had given their final addresses, his Honour returned to his jury charge and reiterated the need for the jury to be satisfied of the elements of each offence and reminded the jury that the defence had claimed that none of the offences occurred. He referred to the passages of cross-examination of ER or AR in which it was put to them they had a motive to make false allegations and that they had colluded in accusing the applicant of sexually abusing them.

101 Finally, his Honour discussed each complainant’s evidence in chief relating to each count and took the jury to matters raised in cross-examination. He also referred to the evidence of other witnesses and to the applicant’s answers in his record of interview.

Counsel’s submissions on grounds 3A and 3B

102 Counsel for the applicant submitted that the judge should not have directed the jury on the elements of the offence separately from the main part of his charge. He also contended that his Honour had not adequately directed the jury on the elements of the offences. In particular, he contended that the oral directions relating to the offence of gross indecency and the Jury Assistance Sheet were inadequate, because the jury was not directed on the meaning of ‘gross’ or the meaning of ‘indecency’. The directions relating to indecent assault were also said to be inadequate because the judge did not give a direction as to the meaning of ‘assault’ or tell the jury that any touching must be the product of a conscious, voluntary and deliberate act.

103 Counsel for the Crown submitted that although it may have been unconventional for the jury to be directed on the elements of the offences prior to final addresses, his Honour’s charge had adequately equipped the jury to understand the elements of the offences, the issues in the trial and the application of law to the facts. His Honour had foreshadowed that he would be giving the jury written directions and neither counsel had taken exception.

104 Although his Honour might have directed the jury in more detail on the elements of the offences of gross indecency and indecent assault, his Honour’s direction was sufficient because it had been assumed at the trial that if the relevant acts had occurred they amounted to gross indecency or indecent assault.

Conclusion on grounds 3A and 3B

105 In R v AJS,[27] this Court said the following:

In any given trial, the scope of the direction on these topics will be defined ― and limited ― by the trial judge’s identification of the matters in issue.
Axiomatically, it is the responsibility of the trial judge in every jury trial:
(a) to decide what are the real issues in the case;
(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c) to tell the jury, in the light of the law, what those issues are;
(d) to explain to the jury how the law applies to the facts of the case; and
(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.^[28]

106 The central issue in that case was whether the alleged sexual acts occurred. When considered as a whole, the judge’s charge adequately explained to the jury the issue in the case and summarised the evidence to the extent that it was relevant to that issue. The judge clearly set out the elements of each offence, gave the jury a document referring to those elements, explained the defence case, and adequately summarised the evidence relating to each count.

107 Although his Honour did not explain what was meant by ‘gross’ or ‘indecency’, there was no dispute that if the jury were satisfied that the applicant masturbated in the presence of AR (counts 2 and 9), this amounted to an act of gross indecency.

108 The same can be said of the complaint that the jury were not adequately directed on the elements of the offence of indecent assault. During discussion with counsel before counsel’s final addresses, the judge foreshadowed the approach he would take in addressing the jury. Defence counsel argued that the jury should not be provided with the transcript of evidence, but said that in his final address he would not be saying that the acts were not indecent because ‘that’s just nonsense, Your Honour and I don’t think it’s necessary’. He said that the judge could say ‘[i]f you believe this happened then you would be comforted in the notion that there’s no contest in relation to it being indecent’.

109 The applicant’s case was not that he had touched the relevant complainant accidentally or that he had performed some sexual act which did not involve touching. It was simply that neither complainants’ evidence should be believed. It was not necessary for his Honour to direct the jury on issues which did not arise in the trial, such as whether masturbation in the presence of a complainant was an act of ‘gross indecency’.

110 The circumstances of this case are substantially different from those which arose in R v Thompson,[29] where neither the written directions given to the jury or the oral charge adequately explained the Crown or defence cases or referred in any detail to the applicant’s evidence or the victim’s account of the alleged events.[30] In that case, Neave JA expressed some reservations about a passage in Redlich JA’s reasons which said that the inclusion of material in written directions ‘cannot take the place of the oral directions which the law requires’.[31] However, assuming that view is correct, in this case, his Honour’s charge satisfied the requirements in R v AJS.

111 Nor is there any substance in the complaint that the judge gave the jury a direction on the elements of the offences prior to counsels’ final addresses to the jury. The practice of giving the jury some directions of law at the beginning of the trial is becoming increasingly common. The New Zealand Law Commission has found that jurors find this practice very helpful, because it provides a framework within which jurors can interpret what they hear.[32] In its Report on Juries in Criminal Trials, it suggested that general instructions could be given on a number of matters, including the elements of offences.[33] Given that some judges are already following the practice of giving the jury preliminary directions at the commencement of a trial which are then reinforced in the final charge, we see no reason why the jury cannot be given similar assistance prior to counsels’ final addresses. This appears consistent with the Crimes (Criminal Trials) Act 1999, which applied at the time of the trial, and permitted the trial judge to address the jury on the issues in the trial at any time the judge deemed appropriate.[34]

112 Counsel for the applicant also referred to a passage in his Honour’s reasons which suggested that rulings on questions of law might have been provided to the jury. Because this matter could not be clarified by either counsel on appeal, a judge’s report was provided on this matter. This report made it clear that in referring to ‘rulings’, the judge was simply alluding to matters on which he gave the jury directions during his charge. These directions were provided in writing as well as orally.

113 Accordingly, grounds 3A and 3B must fail.

Ground 2

114 Ground 2 alleged that ‘a substantial miscarriage of justice was occasioned by a cumulation or the aggregate of some or all of the matters set out in Grounds 1A to 1C’.

115 Because the earlier grounds are not made out, this ground also fails.

116 For these reasons, we would refuse the application for leave to appeal against conviction.

Appeal against Sentence

117 The applicant appeals against his sentence on the following ground:

The learned sentencing judge erred by declining to consider the implications for sentence, of the applicant’s impaired mental functioning, despite:
(a) there being cogent evidence thereof; and
(b) its being consistent with the evidence at trial and the jury’s verdicts
solely because the applicant maintains his innocence and does “not accept the verdict”.

118 At the plea hearing, the applicant relied on a report prepared by Dr Cunningham. Dr Cunningham said that:

[DR] is a fifty-six-year-old male charged with sexual offending. Results of the mental state assessment indicated a diagnosis of Adjustment Disorder with Depression and Anxiety. Psychometric testing indicated cognitive functioning within the average range, a low-risk of violent reoffending and a low-risk of sexually violent reoffending. He does not present as a pedophile [sic]. There were indicators of childhood sexual abuse.
At the time of the offences, it appears that [DR] was experiencing an Adjustment Disorder with Depression and Anxiety and associated problematic use of alcohol. At the time of this Adjustment Disorder, [DR] reported experiencing hopelessness, depression, insomnia, difficulty thinking and concentrating and panic attacks. It appears that his alcohol abuse was an attempt to cope with these symptoms. However, it appears that this alcohol abuse impaired his ability to control his anxiety and depression leading to increased impairment in his mental state. It appears that the combination of Adjustment disorder and alcohol abuse impaired his ability to exercise appropriate judgment whilst increasing his disinhibition.
It appears that [DR] recovered from this Adjustment Disorder and alcohol abuse after ending his relationship with [the complainants’ mother] and moving in with [DR’s current partner]. At the time of the assessment, it appeared that the stress of incarceration and court had caused a reoccurrence of an Adjustment Disorder with Depression and Anxiety.
In summary, [DR’s] risk factors appear to relate to his Adjustment Disorder with Depression and Anxiety and alcohol abuse. At present, he is experiencing an Adjustment Disorder due to being incarcerated. He has ceased problematic use of alcohol since 1997. He presents as a low-risk of violent and sexually violent reoffending. To treat his Adjustment Disorder, [DR] would benefit from accessing clinical services during his incarceration. The absence of offending history and risk factors indicates that [DR] may present with a positive prognosis for rehabilitation.

119 His Honour asked defence counsel about the relevance of Dr Cunningham’s medical report and counsel said that the applicant would ‘do his time harder’ because of his adjustment disorder and depression, and that any time he spent in gaol would be served with ‘more disability because of these matters’. His Honour asked counsel if he was submitting that the applicant’s moral culpability was reduced because of his adjustment disorder and counsel replied that he was not and ‘[t]here is no suggestion that had anything to do with the commission of the offences’.

120 In response to a query from his Honour about whether the applicant’s anxiety and depression were due to the charges or had pre-dated them, counsel said that:

There’s nothing in the report that would have, that in any way is suggestive, Your Honour, of these matters being directly related to any of the matters for which he’s been convicted.

121 Counsel for the Crown drew the judge’s attention to Dr Cunningham’s opinion that the accused man’s drinking to deal with his adjustment disorder had disinhibited him.

122 In his sentencing remarks, the learned trial judge considered the medical report prepared and stated as follows:

Dr Cunningham reported that during the latter part of your relationship with [the complainants’ mother] you were using alcohol to excess. There was reference during the trial to some of the offending against [ER] occurring when you were sitting in the kitchen drinking.
Dr Cunningham opines that the use of alcohol, in circumstances where you were suffering from an adjustment disorder with depression and anxiety, may have impaired your ability to exercise appropriate judgment while increasing disinhibition.
Your counsel expressly disavowed any reliance on this opinion or on alcohol as relevant. In circumstances where you do not accept the verdict, I accept the submission of your counsel.

123 The applicant argues that the judge erred by finding that he had waived an entitlement which he may otherwise have had to rely on his history of mental illness by refusing to acknowledge the correctness of the jury’s verdict.

124 In response, the respondent claims that the judge’s remarks were directed at the concessions made by the applicant’s counsel, rather than to any waiver of entitlement because he had pleaded not guilty. The respondent submitted that the applicant was unable to show that any mental impairment caused or contributed to his offending.

125 At first sight, it appears surprising that the applicant’s counsel did not rely on Dr Cunningham’s report to argue that the applicant’s moral culpability was somewhat reduced by his adjustment disorder. However, this may be explained by the fact that, according to Dr Cunningham, the symptoms of the disorder were manifested towards the end of the relationship between the applicant and the complainants’ mother and the offending began well before that. In making the above comment, the judge may have incorrectly run together the question of whether the applicant’s moral culpability was reduced because of his adjustment disorder with the unrelated question of whether he was remorseful for his offending. However, even if his Honour was mistaken in doing so, the applicant’s adjustment disorder could have had only a marginal effect on the sentence imposed by his Honour.

126 The applicant committed serious offences against his two stepdaughters over a considerable period. The complainants’ victim impact statements show that they continue to experience serious psychological effects from the abuse. These effects are described in the trial judge’s reasons for sentence. DR continued to abuse ER after AR had tried to tell her mother that the applicant had been assaulting her and he had denied it. His offending escalated from indecent assaults and masturbation in the presence of one or other of the complainants to penetration of ER when she was a young adolescent. The applicant fell to be sentenced as a serious sexual offender on all except counts 1 and 2.

127 Despite the mitigating features to which his Honour referred, we consider the individual sentences and total effective sentence imposed by his Honour were lenient, having regard to the seriousness and sustained nature of the offending and the applicant’s lack of remorse. Thus, even if we were persuaded that his Honour had erred in the manner described above, we do not consider that any different sentences should be passed.

128 For these reasons, we would refuse the application for leave to appeal against sentence.

^[1] Criminal Procedure Act 2009 sch 4 cl 8; the current provisions are found in Criminal Procedure Act 2009, ss170, 193 and 194.

^[2] See, eg, R v Christou [1997] AC 117, 129, cited in MRO v The Queen [2010] VSCA 240, [39] (Nettle JA).

^[3] [2005] NSWCCA 338; (2005) 156 A Crim R 308, 317−8.

^[4] At the hearing of the appeal, the applicant was granted leave to add this ground of appeal.

^[5] There were counts relating to offending against ER on the way to the milkbar. The applicant was not convicted on these counts.

^[6] The prosecutor relied on DPP v P [1991] 2 AC 447 and R v NAM [2010] VSCA 95 in support of these submissions.

^[7] GBF v the Queen [2010] VSCA 135.

^[8] NAM v the Queen [2010] VSCA 95.

^[9] [1991] 2 AC 447.

^[10] R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286.

^[11] R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182.

^[12] [2010] VSCA 95.

^[13] R v Grech [1997] 2 VR 609.

^[14] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375.

^[15] KRI v R [2011] VSCA 127, [57] (Hansen JA); RHB v The Queen [2011] VSCA 295, [18] (Nettle JA).

^[16] Compare similar comments of this Court in GBF v the Queen [2010] VSCA 135, [54] made in relation to a jury direction which would have to be given.

^[17] [2010] VSCA 95.

^[18] Ibid [15].

^[19] [1991] 2 AC 447.

^[20] [2006] NSWCCA 112; (2006) 66 NSWLR 228.

^[21] See also RHB v The Queen [2011] VSCA 295, [27].

^[22] [2001] VSCA 213 (that case involved the application of s 398A of the Crimes Act 1958).

^[23] Ibid [16]−[17]; see also R v HJS [2000] NSWCCA 205 where Ireland J (Spigelman CJ and Simpson J agreeing) considered that the evidence of four daughters that their father had sexually abused them was capable of being admitted as evidence of a tendency ‘to treat all of his female children in a sexually abusive manner’: [41].

^[24] Compare the comments of Heydon J in Stubley v State of Western Australia [2011] HCA 7; (2011) 242 CLR 374, 417, in a case where similar fact evidence related to the behaviour of a psychiatrist who allegedly had intercourse with more than one patient.

^[25] BP v R [2010] NSWCCA 303, [112].

^[26] For a case in which the evidence of previous offending against a daughter was held admissible as tendency evidence in relation to an alleged offence against a granddaughter, see RHB v The Queen [2011] VSCA 295.

^[27] [2005] VSCA 288; (2005) 12 VR 563.

^[28] Ibid 577.

^[29] [2008] VSCA 144; (2008) 21 VR 135.

^[30] Ibid 154.

^[31] Ibid.

^[32] Law Commission, Juries in Criminal Trials, Report No 69 (2001) [304].

^[33] Ibid [306].

^[34] Crimes (Criminal Trials) Act 1999, s 14. Section 19 of that Act set out the documents which could be given to the jury for the purpose of helping it understand the issues at trial. The Crimes (Criminal Trials) Act 1999 was repealed by the Criminal Procedure Act 2009 (which contains similar provisions: ss 222−3) but continued to apply to the applicant’s trial under clause 8 of Schedule 4 to the Criminal Procedure Act 2009.

Authorities Cited22

Referred to (22)