DJV v R

[2008] NSWCCA 272

Reported Decision: 200 A Crim R 206

New South Wales

Court of Criminal Appeal

CITATION:	DJV v R [2008] NSWCCA 272
HEARING DATE(S):	29 July 2008
JUDGMENT DATE:	19 November 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hidden J at 58; Fullerton J at 59
DECISION:	1. Appeal upheld. 2. Conviction quashed. Remit the matter to the District Court for a new trial.
CATCHWORDS:	CRIMINAL LAW - evidence - where tendency evidence tendered for confined purpose as context or relationship evidence - admissibility - requirement that such evidence be relevant to an issue in the trial - improper admission of such evidence - miscarriage of justice - CRIMINAL LAW - appeal and new trial - misdirection by trial judge on permissible use of context or relationship evidence by jury - erroneous submissions by counsel - miscarriage of justice - STATUTES - Evidence Act 1995 ss 97, 101, 135, 137
LEGISLATION CITED:	Evidence Act 1995 Crime (Sexual Assault) Amendment Act 1981
CATEGORY:	Principal judgment
CASES CITED:	Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 HML v R [2008] HCA 16; (2008) 245 ALR 204 MM [2000] NSWCCA 78; (2000) 112 A Crim R 519 Pfennig [1995] HCA 7; (1995) 182 CLR 461 Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463 R v AH (1997) 42 NSWLR 702 R v Beserick (1993) 30 NSWLR 510 R v Ellis (2003) 58 NSWLR 700 R v Fraser (NSWCCA, unreported, 10 August 1998 R v Hagerty [2004] NSWCCA 89; (2004) 145 A Crim R 138 R v M, RB [2007] SASC 207; (2007) 172 A Crim R 73 R v RNM [2005] NSWCCA 396 R v TAB [2002] NSWCCA 274 Toki [2000] NSWSC 999; (2000) 116 A Crim R 536
TEXTS CITED:	S Odgers, Uniform Evidence Law, 7th ed, Thompson Lawbook Co
PARTIES:	DJV (Appellant) The Crown
FILE NUMBER(S):	CCA 2006/5263
COUNSEL:	C Davenport SC (Appellant) D Arnott SC (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/31/0021
LOWER COURT JUDICIAL OFFICER:	English DCJ
LOWER COURT DATE OF DECISION:	6 December 2006

2006/5263

McCLELLAN CJ at CL
HIDDEN J
FULLERTON J

WEDNESDAY 19 NOVEMBER 2008

DJV v R

Judgment

NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT OR ANY FACTS THAT MAY IDENTIFY HER, INCLUDING THE APPELLANT’S NAME

1 McCLELLAN CJ at CL: The appellant was convicted of 2 counts on an indictment. The first count was that between 14 March 2002 and 31 May 2003 he had sexual intercourse with LB, without her consent, knowing that she was not consenting, she then being under the age of 16 years. The second count was that between 2 November 2003 and 11 November 2003 the appellant assaulted LB and at the time of such assault committed an act of indecency upon her, she then being under the age of 16 years. He was sentenced on count 1 to imprisonment for 9 years, with a non-parole period of 6 years. On count 2, he was sentenced to a fixed term of 5 years, which would be concurrent with the sentence on count 1.

2 The complainant is the appellant’s daughter. She was 13 or 14 years of age at the time of the offences. The appellant and his wife separated in 1994/95 and from that time until the allegations were made in 2004 the appellant had regular contact with his children. It was during these periods of contact that the offences were alleged to have occurred.

3 In addition to the evidence of the complainant relating directly to the two counts the Crown led evidence from her alleging other sexual misconduct by the appellant. It was referred to as evidence of the “relationship” between the complainant and the appellant. The complainant said that the appellant had engaged in sexual misconduct with her from when she was aged five or six. She also alleged that in 2003, during a holiday in the Daintree, the appellant had sexually assaulted her in a tent. Apart from evidence of direct physical contact of a sexual nature the complainant also gave evidence that when she was staying with her father he would watch her through a window while she was in the shower. The Crown originally served tendency notices, as required by s 97 of the Evidence Act 1995, in relation to this evidence. However, it was ultimately proffered as “relationship” evidence. Although commonly referred to as “relationship” evidence having regard to the basis for its admissibility, it is more appropriately described as “context” evidence being evidence of the context within the relationship in which the charged act or acts occurred.

4 The offences with which the appellant was charged were alleged to have occurred in his home. The charge of aggravated sexual intercourse involved an allegation that the appellant forced his penis into the complainant’s mouth while she was lying on a lounge and covered by a blanket. The second offence was alleged to have occurred on a night when the complainant and her brother were staying with the appellant and his partner Y. The Crown alleged that the complainant and her brother shared a bed with the appellant. It was alleged that the appellant had placed his penis between her legs and rubbed himself to ejaculation.

5 The charges first came to trial in August 2005. On that occasion the appellant objected to the admission of the “relationship” evidence, and pre-trial rulings to admit the evidence were made. The trial aborted for reasons unrelated to the trial judge’s rulings on that issue. The re-trial was listed before another judge and further rulings were made. That trial also miscarried.

6 The trial which gives rise to this appeal took place in August 2006. Both the appellant and the Crown agreed to be bound by the evidentiary rulings which had previously been made.

7 The evidence of the complainant was in part given by playing the video recording of her interview with the police. She gave additional oral evidence and was cross-examined. The Crown also called evidence from the complainant’s mother and brother and a former partner of the appellant. The complainant’s brother, TB, gave evidence that on one occasion when he and his sister were visiting the appellant he had followed his father outside at a time when his sister was in the shower and had seen the appellant looking at her through the bathroom window. TB also gave evidence about the trip to the Daintree. He said that the complainant had shared a tent with the appellant when they were camping. He gave evidence that he had wanted to share the tent with his father but had been refused permission. Although the appellant’s case was that the siblings had been placed into separate tents because they were fighting, TB denied that this was the case. TB also gave evidence regarding the night that the second offence was alleged to have occurred. He said he had left the complainant and his father alone in the bed.

8 The appellant gave evidence at his trial. He denied the offences. However, he admitted that he had shared a tent with his daughter on the Daintree trip and that both his children had shared his bed on the night when the second charge was alleged to have occurred. There was evidence from the appellant’s partner confirming the appellant’s evidence of the events on the night of the second charge. A further witness gave evidence confirming the appellant’s account of the events on the camping trip.

The appeal

9 The original notice of appeal raised two grounds. It was firstly submitted that the verdicts were unreasonable and against the weight of the evidence. It was further submitted that the trial judge had misdirected the jury in relation to the number of persons present at the time of the commission of the offences. Subsequently the grounds of appeal were amended to include the following three grounds. It was these grounds which were ultimately pursued in argument.

The admission of the evidence of [TB] as “context” evidence resulted in a trial that was unfair.
The admission of the evidence of uncharged acts as “context” or “relationship” evidence resulted in a trial that was unfair.
Her Honour failed to direct the jury that, before they could use the evidence [of uncharged acts] as evidence of tendency, they must be satisfied of that evidence beyond reasonable doubt.

General matters

10 This case again raises the difficulties in relation to evidence of other allegedly criminal acts or inappropriate conduct by a person accused of a criminal offence. The problem usually arises in relation to allegations of sexual assault although it can create difficulties in other cases. The problems were most recently considered by the High Court in a common law context in HML v R [2008] HCA 16; (2008) 245 ALR 204. They were considered by this Court in Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463.

11 Section 97 of the Act provides the first step in the statutory control on the admission of tendency evidence. Evidence of “the character, reputation or conduct” or “tendency” of a person is not admissible unless notice is given or the court thinks that the evidence would “have significant probative value.”

12 Section 101 provides a further control upon tendency evidence in criminal proceedings. It provides that the evidence “cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.” These provisions were considered by this Court in R v Ellis (2003) 58 NSWLR 700 (see also Simpson J’s analysis in Fletcher).

13 It is common to find in cases involving allegations of sexual misconduct with a minor that the complainant alleges similar misconduct on other occasions. They have often been referred to as “uncharged acts”, although this label was criticised in HML by Hayne J at [129]; Crennan J at [399].

14 I understand that it is common, at least in New South Wales, for the Crown to serve a tendency notice in relation to this class of evidence but when, as will almost always be the case, the defendant objects to its admission, the Crown alters course and confines the purpose of the tender to evidence which explains the context of the offences including the nature of the relationship between the accused and the complainant. Whatever be the purpose for which it is tendered the evidence will almost always occasion significant prejudice to an accused. Care must be exercised both as to its admission and, if admitted, the directions given to the jury as to its use. If admitted as “context” evidence s 136, which requires directions to be given with respect to the limited use of the evidence, is engaged.

15 Section 97 has been described as a “purpose” or “use” rule (S Odgers, ‘Uniform Evidence Law’, 7^th ed, Thompson Lawbook Co, p 369). This reflects the definition of “tendency evidence” in the Act where such evidence is defined to mean “evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.” Accordingly, whether evidence is admitted as tendency evidence is dependent in a criminal trial, amongst other matters, on the Crown nominating that the purpose of the tender is to prove a “tendency” of the accused.

16 Evidence of the “character, reputation, conduct or tendency” (s 97) of a person may be powerful evidence of that person’s predisposition or propensity to criminal activity, either of a particular kind, and/or, with respect to an identifiable victim. Where the charges are of sexual assault in whatever form, the tendency sought to be proved is appropriately described as the sexual interest of an accused in the complainant. If not tendered as tendency evidence, s 97 and s 101 will not be engaged. However, s 135 and s 137 will be. Notwithstanding the capacity of the trial judge to give the jury clear direction as to how the evidence may be used, or more importantly how it may not be used, the admission of evidence which may tend to prove a relevant tendency of the accused without it being identified as tendency evidence raises questions of considerable difficulty. When evidence is tendered as tendency evidence the protection provided by s 101 is available; but if tendered merely as relationship evidence s 137 provides the discretionary hurdle to its reception. Section 101 operates so that before the evidence can be admitted the probative value of the evidence must substantially outweigh the prejudicial effect. Section 137 is confined to consideration of the probative value as against any unfair prejudice. Evidence which would not pass the test in s 101 may nevertheless be admitted under s 137 notwithstanding its potential prejudicial effect. Protection from that prejudice materialising is then confined to the directions given by the trial judge.

17 The difficulties faced by a court when considering the admissibility of evidence which demonstrates a tendency but where the Crown disavows the tender for that purpose have been discussed in relation to the Evidence Act on a number of occasions. I considered them in Qualtieri where I said at ([80] and [82]):

“80 To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be -

Identification of the evidence which the Crown seeks to tender and the purpose of its tender.
If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH [(1997) 42 NSWLR 702] at 709.
If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.
If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.”

18 I would make one change to this summary. In the third dot point it would have been more appropriate to refer to “whether there is an issue in the trial” allowing for the possibility of an issue not yet “raised” emerging at a later point in the trial process. I continued:

“82 In the present case, the evidence of which complaint is now made was not the subject of objection at the trial. Perhaps it should have been. At the very least counsel and his Honour should have clearly identified the basis of the tender which, so it now seems, was confined to evidence establishing the nature of the relationship. That evidence of the relationship was relevant to the jury is made plain by defence counsel’s criticism of the complainant’s evidence in her address to the jury where counsel emphasised the lack of evidence of the complainant reporting the appellant’s conduct to her mother or any other responsible adult. However, whether evidence of other sexual activity was necessary or relevant to explain this matter or merely the explanation that her lack of complaint was motivated by fear of the consequences need not be determined. I am not entirely comfortable with the proposition that in order to explain a lack of complaint, evidence of other sexual activity will necessarily be relevant or that its probative value going to the issue of lack of complaint, outweighs the obvious prejudicial value. These matters need not be resolved in this case although they may require attention in other matters when evidence of this character is sought to be tendered.”

19 As I have indicated these issues in the common law context were considered by the High Court in HML. In a decision notable for a lack of a common approach to the problems, Hayne J (with whom Gummow and Kirby JJ agreed) confined the admission of evidence demonstrating a tendency to the circumstance where it is probative of a fact in issue. In their opinion the test for admissibility is that provided in Pfennig [1995] HCA 7; (1995) 182 CLR 461. Their Honours were critical of the distinction commonly made between “tendency” evidence and “context” evidence.

20 The view of Hayne J was expressed in the following passage [113]-[116]:

“Pfennig establishes the rule that governs the admission of evidence that will reveal an accused person's commission of discreditable acts other than those that are the subject of the charges being tried. The rule takes as its premise that evidence of other discreditable acts of the accused is ordinarily inadmissible. The foundation for the rule excluding evidence of other discreditable acts of an accused is that, despite judicial instruction to the contrary, there is a risk that the evidence will be used by the jury in ways that give undue weight to the other acts that are proved. That is why the exception to that general rule of exclusion is drawn as narrowly as it is by Pfennig . It is why Pfennig requires that evidence of other acts may be admitted only if it supports the inference that the accused is guilty of the offence charged, and the evidence of those other acts is open to no other, innocent, explanation. But it also follows from the considerations that have just been mentioned that the exclusionary rule is not to be circumvented by admitting the evidence but directing the jury to confine its uses.
There are several points to make about attempts to divide the uses to which evidence of other discreditable acts of an accused may be put. The division suggested may be variously expressed, but its general nature is captured by expressions like "propensity", "disposition", or "tendency" on the one hand, and "context", "explanation", or "intelligibility" on the other. There are at least two reasons not to attempt any such division.
First, it may greatly be doubted that a division of uses expressed in those or similar terms will provide any useful guidance to jurors. The meaning and application of the expressions is anything but readily apparent, even to lawyers.
Secondly, and more fundamentally, the foundation of the general exclusionary rule is that uses of the evidence cannot be segregated in the manner suggested. The very risk to which the general rule of exclusion is directed is the risk that the evidence will be misused . Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig , is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.”

21 Three of the judges, the Chief Justice, Crennan and Kiefel JJ, in HML accepted that the evidence may be admissible to explain the “relationship”, although their reasons for its admission were not entirely consistent. Gleeson CJ said at [6]:

“Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. An example is some evidence given in R v Wickham. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was 14 years old. She said that her father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no protest. She behaved as though this was a common occurrence. She said that, in fact, it was a common occurrence. If she had not been permitted to say that, her evidence could have appeared hard to believe. To have put her evidence forward as though she were describing an isolated incident would have been misleading, and, it might be added, unfair. Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In R v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method.”

22 Later, at [24]-[25] the Chief Justice said, in contrast to the view of Hayne J:

“The Pfennig refinement upon the general principle as stated, for example, in Boardman does not supplant the general principle in all cases of evidence which reveals the commission of criminal offences other than the charged offences. Where evidence of uncharged acts is introduced for the common, and acceptable, purpose of explaining that a complainant, in giving an account of conduct the subject of a charge, is not purporting to describe an isolated event, so that the account of the event may properly be evaluated by the jury, the test to be applied in determining admissibility is whether the probative value of the evidence outweighs its prejudicial effect. Evidence may have probative value in the assistance it gives in assessing other evidence. What is sometimes called "relationship evidence" may have value in this way. So also may evidence of what are sometimes called res gestae . The evidence that was held to be admissible in O'Leary v R , of similar acts prior to and after the events charged, helped to explain or make intelligible the course of conduct pursued.

In a sexual abuse case, a complainant's evidence of uncharged acts, admitted only for the purpose of explaining or making intelligible her account of the charged acts, or to show that she was not purporting to describe an isolated event where otherwise her account may appear implausible, need not offend rules against investigation of collateral matters or impermissible attempts to bolster a witness's credit. It is, however, subject to the general principle concerning probative value and prejudicial effect, and the possible potential unfairness resulting from both form and content earlier discussed may affect its admissibility.”

23 Crennan J said at ([431]-[434]; [463]-[467]):

“As with evidence which is part of a connected series of events considered as one episode, the charges in these cases cannot truly be understood if isolated from the evidence of other sexual misconduct. Acts which are not part of the offences charged may nevertheless be "closely and inextricably mixed up with the history of the guilty act itself" or show "the continuing nature" of the conduct complained about so that the evidence explains the offences charged. If evidence is confined to the events, the subject of the charges in these cases, that evidence would be "unreal and not very intelligible". That gives the evidence of other sexual misconduct a high degree of relevance.

Commonly enough, it will not be feasible to include all incidents of continuing sexual abuse in the charges which are laid in respect of specific acts. Juries understand well enough that sexual abuse of children can involve systematic abuse when the child and the abuser are family members. Jurors would find it strange if such evidence were not put before them if it exists.

In these three matters the evidence of uncharged acts was relied on by the prosecution to establish the context in which the charges could be truly understood, so that the charges would not be considered in a vacuum. The context was a sexualised family relationship which was directly relevant to the proof of issues in the cases. In each case that evidence explained, and rendered intelligible, the offences charged. To exclude such evidence as irrelevant would occasion unfairness by requiring each complainant to give an incomplete account of her evidence.

Principal submissions
Relevance is a necessary but not sufficient condition for admitting evidence which discloses propensity.
…

As observed by McHugh J in KRM , numerous examples can be found where "relationship evidence" has been admitted which could not have satisfied the Pfennig test.

As already mentioned, evidence of a relationship of mutual antipathy between a husband and wife, respectively the accused and victim, was admitted in Wilson for the purposes of throwing light on the offence of murder with which the accused was charged and to negative a defence of accident.

More particularly, evidence of a relationship between an accused and a complainant has been admitted to prove sexual crimes against young people, including incest. It was thought by at least one writer that when the Makin approach to exclusion was employed there was a "less exacting test" for the admissibility of "relationship evidence" than there was for similar fact evidence strictu sensu. Whether or not that is correct, the differences between propensity evidence of the kind considered in Pfennig and the evidence of uncharged acts here are easily recognised.

Once a prosecutor demonstrates that the evidence of uncharged acts has a relevance beyond merely demonstrating propensity and disavows use of the evidence as propensity evidence, the test for admissibility is the basic criterion referred to in both Hoch and Pfennig . That basic criterion requires asking whether the probative value of the evidence outweighs its prejudicial effect, whether that is specifically grounded in Boardman , or more generally in R v Christie , a possibility recognised in Markby v R , which first adopted the Boardman test as part of the Australian common law.

The gloss on that basic criterion, imposing a higher standard of probative value, which arose out of the facts in Hoch and Pfennig , and the purposes for which the evidence was led in each of them, has no application to the purposes for which evidence of uncharged acts was led in these three matters.”

24 Kiefel J said at ([500]-[502]; [505]):

“In my view relationship evidence is relevant, but not in a general way and not by way of background or contextual evidence. It is relevant to answer questions which, in cases of the kind under consideration, may fairly be expected to arise in the minds of the jury were they limited to a consideration of evidence of the offences charged. So understood the basis for its admission is not to bolster the complainant's credit. It is relevant to answer questions and thereby rebut or negative an inference which might otherwise be drawn by the jury. In Gipp v R , McHugh and Hayne JJ accepted that general relationship evidence might be admitted for a limited purpose, one which did not rely upon the accused having a sexual interest in the complainant.

Relationship evidence tendered for this limited purpose does not depend, for relevance, upon a question being raised by the defence. Gaudron J in Gipp accepted that issues may arise as to the complainant's lack of surprise or failure to complain, but considered that they could only be raised by the defence. I must respectfully disagree. Gibbs ACJ in Markby v R did not consider that the admissibility of evidence, relevant otherwise than as to tendency or propensity, depended upon the line taken by the defence at trial, that is, whether the accused had raised or disclaimed a particular defence. The position of the defence may not be clearly exposed on cross-examination of the complainant. It may not be until addresses that reliance is placed upon gaps in the complainant's account. Even if the defence eschewed reliance upon what might be drawn from the absence of particular evidence from the complainant, it would not always be sufficient to settle a concern held by the jury. In any event, if it be accepted that the evidence is relevant to meet questions which may be fairly anticipated to occur to a jury, it cannot be seen as dependent upon the course taken by the defence.
Relationship evidence tendered for the purpose of providing answers to the jury, in the way explained, discloses the other misconduct. It does not, however, involve the use of any tendency of the accused, in the reasoning of the jury, so long as the jury are properly instructed. It will be necessary, where it is relied upon for this limited purpose, for the trial judge to carefully direct the jury as to the use they can make of the evidence. In BRS v R McHugh J acknowledged that a direction may be effective to overcome the potential for prejudice. To achieve that it will be necessary that the jury be told that they must use the evidence only to answer the questions, identified at an early point by the prosecution and accepted as relevant by the trial judge, which are considered likely to occur to them; but that they are not to use it to reason that the accused is likely to have committed the offences. In some cases a trial judge might fairly observe that the reference to other acts, which are likely to be of the same kind as those charged, does not logically prove the prosecution case or enhance the complainant's credit.
…
In Gipp , McHugh and Hayne JJ expressed the view that relationship evidence tendered for the limited purpose did not offend the policy of the law upon which the rule of exclusion is based. I respectfully agree. The direction to the jury prohibits its use as evidence of tendency and it is therefore to be distinguished from other similar fact evidence. In Pfennig it was said in the joint judgment that relationship evidence is a type of propensity evidence. I take their Honours to mean that this is so when it is used as propensity evidence. In that situation it belongs to a special class of circumstantial evidence which may attract the test there propounded. The test applied in Pfennig can have no application to the limited purpose here discussed. It has been assumed that the test did not apply. In Conway v R relationship evidence was considered to fall outside the special rules in Pfennig , because Pfennig dealt with the more difficult and dangerous category of similar fact evidence.”

25 It is of significance that Kiefel J rejected the proposition that relationship evidence was admissible to bolster the complainant’s credit (see to the contrary Howie J in Qualtieri at [119]) but held that it is admissible to rebut “an inference which might otherwise be drawn.”

26 Heydon J said at [271]:

“For a long time, with few exceptions, on a charge against an accused of committing a sexual crime against a particular victim, the courts have admitted evidence of uncharged sexual acts by the accused against that victim. Thus in 1861 in R v Jones evidence of uncharged rapes by a father of his daughter was admitted to establish a "reign of terror" causing the daughter not to resist. This idea is among those which have been employed more recently. Sometimes the evidence has been admitted independently of the principles regulating similar fact evidence. At other times the evidence is said to be admitted in conformity with those principles.”

27 His Honour did not find it necessary to determine whether the evidence could be admitted to explain the “relationship.”

28 Whatever be the position under the common law, the accepted position in New South Wales is that evidence of “relationship” may be admitted unless excluded after consideration has been given to s 135 or s 137 of the Evidence Act: Qualtieri; R v AH (1997) 42 NSWLR 702; R v Fraser (NSWCCA, unreported, 10 August 1998). However, it will only be admissible if it is relevant because it may assist in the evaluation of other evidence going to a fact in issue. In particular it may provide the “context” in which to understand a narrative in the sense suggested by Gleeson CJ and Heydon J in the passages above. Unless the other evidence in the trial and the issues which it raises make it relevant to prove the “context” in which the alleged offence or offences occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence. In most cases relevance will be occasioned by an apparent lack of complaint by a complainant whose will has been overborne from a young age or who has feared the consequences of making a complaint about a family member. Fear of not being believed or family breakdown may explain a lack of complaint when a charged act occurs. If the evidence is admitted the dangers of its misuse are significant and the judge’s directions to the jury must be clear so that the jurors understand the limited purpose for which they may consider that evidence.

29 In Qualteri at [112] this Court emphasised the necessity for a trial court to ensure that it critically analyses attempts by the prosecution to tender evidence otherwise than as tendency evidence. It must again be emphasised that it is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context.

30 The need for care in identifying the basis upon which the evidence is admitted, either tendency or context, must be emphasised. In HML, Gummow, Kirby, Hayne and Keifel JJ state (see Hayne J at [247]) that where evidence is tendered to prove a propensity, being the sexual interest of an accused in a complainant, the jury must be told that they must be satisfied of that interest beyond reasonable doubt (see also Howie J in Toki [2000] NSWSC 999; (2000) 116 A Crim R 536; R v Hagerty [2004] NSWCCA 89; (2004) 145 A Crim R 138; Gipp at [76]; R v TAB [2002] NSWCCA 274; R v RNM [2005] NSWCCA 396. In MM [2000] NSWCCA 78; (2000) 112 A Crim R 519, this Court divided on the question). The four members of the High Court who reached this conclusion may not be entirely consistent in their reasoning (see Kirby J at [61] and Keifel J at [505]-[506]) and HML was decided having regard to the common law. However, unless after full argument of the issue this Court or the High Court says otherwise, this Court should accept that in sexual assault cases the appropriate standard of proof of tendency evidence is beyond reasonable doubt.

31 Context evidence does not require a direction that it be proved beyond reasonable doubt. Where the evidence is of similar sexual misconduct but the jury are told it has only been admitted to explain aspects of the relationship and they may not use the evidence to reason toward guilt, the expectation that they will understand and remain faithful to the direction may not be on firm ground: see Kirby J in HML at [57]. To be told that the accused did the same thing on a number of other occasions but that you cannot use that evidence to reason that he did it on a particular occasion is contrary to ordinary human experience (see the discussion by Debelle J in R v M, RB [2007] SASC 207; (2007) 172 A Crim R 73 at [63] ff). The jury must be left in no doubt that they cannot follow that line of reasoning. The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted.

The disputed evidence

32 As I have indicated the disputed evidence was the subject of objection at an earlier trial. The judge at that trial described the evidence in the following terms:

“The first uncharged act the crown seeks to have admitted in evidence is alleged by the complainant to have occurred when she was aged five or six years. That is in the years 1994 or 1995. This event is described in the ERISP at question 241 and following.
In summary the incident occurred at the accused’s then house at Killarney Vale before she had moved with her mother and brother to Queensland. The event was described by the complainant in some detail. It occurred during the course of an access visit by the complainant and her brother. She said at bedtime the accused carried her young brother, who was then aged two or three, to the top bunk in what I understand was the children’s bedroom.
The complainant went to bed in the accused bed. She described in some detail an act of cunninglingus performed by the accused. She recalled his movements and her actions after the event including going to the toilet, getting a towel and wiping her vagina and changing her clothes. She said she returned to the bottom bunk in the children’s bedroom.
There is clearly a gap between this event and the first of the counts in the indictment, which is alleged to have occurred in 2002 or 2003. This leads to the second series of uncharged events upon which the crown seeks to rely. In respect of this period the crown seeks to adduce evidence contained in the ERISP at question 397 to 398 after the complainant had given her account of the incident when she was aged five or six.
The following exchange took place in the ERISP, and I quote:
‘Q397: Okay, all right, okay. So any other questions, Danielle? Okay, all right. [LB], so you’ve told me about the first time when you were 5 or 6 and you’ve told me about the last time which was in...last year 2003. So what about the times in between, were there times in between or something else?
A: Yeah, it happened every time that I’ve been with my dad at night-time, so I can’t remember every time, but I can remember he always used to watch me in the shower.
A: ...up the back and say, ‘When you have a shower, I’ll just go feed the dog.’ He used to look at in the bathroom window because it never really closed properly.
Q398: Mm-mm?
A: ...so he used to and the screen was gone, he used to be able to open it just enough so he could see me in the shower when the shower curtain was clear and it had see through dolphins or whales on it.’

I was informed by the learned crown prosecutor that the complainant’s brother [TB] would also give evidence concerning his observations of the accused when he saw him on tiptoe looking through the bathroom window, as described by the complainant.
At the time of these events the complainant said she was visiting her father every second weekend. At question 423 the following exchange took place:
‘Q: Okay, all right, so you said that something happened with dad every time you went there every second weekend?
A: Yeah.
Q424: And then you moved to..?
A: To Queensland, yeah.
Q426: Three or four years ago so up until the time you were 5 or 6 until 3 or 4 years ago when you went to Queensland you would see your dad every second weekend?
A: Yeah.’
At question 442 the following exchange took place:
‘...so you’ve told me that every time you’ve seen your - seen Dad like every second weekend and you’ve said that something would happen?
A: Yeah.
Q443: Is there within that time frame first of all of your visiting dad every second weekend, can you remember another specific time when something has happened?
A: Yeah, I can remember how he always used to come to my room before he started work and went to work on a Saturday because he’d start early. He used to come in and pretend he was hugging me and just rub his penis on my vagina.’
After the complainant, her brother and mother moved to Queensland she said that access occurred two or three times a year. On one of these occasions the accused travelled to Queensland for the purpose of access with a friend by the name of [DG].
The complainant said that the accused and [DG] took the complainant and [TB] camping to a place called Cape Kimberley. She placed this event in the September school holidays in 2003. This event is described in the ERISP at questions 554 to 669. She described in some detail an act of cunninglingus by the accused whilst she was alone in a tent with him.
I interpolate at this point the crown pointed out that it did not propose to lead evidence of the complaint pursuant to s 66 of the Evidence Act. However, if such issue arose she would seek to lead evidence of complaint made to her boyfriend under s 108. The events that occurred, to which reference has been made when camping with the accused, was one of the issues raised as an uncharged act which the crown seeks to rely upon.
Mr Nicol on behalf of the accused submitted that the evidence in relation to the occasion of cunninglingus when the complaint was five or six years of age was too remote from the counts in the indictment, being some eight years earlier to the first count in the indictment, and accordingly was of little probative value and unfairly prejudicial to the accused.”

33 The judge who made the evidentiary rulings acknowledged that the Crown did not rely on the “uncharged acts” as tendency evidence. Instead the Crown relied upon it as evidence of the “relationship” between the appellant and his daughter in the sense considered by the High Court in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 (see also R v Fraser). Because the Crown said that it did not tender the evidence as evidence of tendency consideration of its admissibility was confined to s 135 and s 137 of the Evidence Act. His Honour determined that although the events when the complainant was five or six years of age were remote from the charges on the indictment, when coupled with the evidence of continued misconduct there was “a continuity demonstrating a relationship”. His Honour then said:

“Although, of course, there is prejudice which would flow to the accused by the admission of such evidence, I am of the view that such prejudice can be minimised by a direction to the jury at the time of admission of such evidence of the limited use that can be made of the same. Also, of course, such direction will be reinforced during the final summing-up.”

34 With respect to the evidence of the camping trip in Queensland his Honour ruled that:

“Such evidence, not being remote in time in respect the second count, ought be admitted as relationship evidence, demonstrating a continuity of that relationship up until the events comprised in the second count in the indictment, and accordingly ought be admitted.”

35 In relation to the evidence of the appellant observing his daughter in the shower his Honour ruled:

“In my view this evidence also ought be admitted as contextual evidence and evidence of the continued relationship that existed between the complainant and the accused.”

36 The nature of the evidence and his Honour’s rulings reveals the difficulty that is often encountered by trial judges when evidence of uncharged acts are sought to be relied upon by the prosecution as probative of guilt. It is correct that each of the events if true forms part of the “relationship” between the appellant and the complainant. But that is not the touchstone for admissibility. There must be an issue in relation to the charged act or acts which justifies the admission of evidence of other events including other occasions of sexual abuse. Unless there is such an issue the evidence of other acts is likely to only be admissible, if at all, as tendency evidence. It is true that the evidence of the early incidents and the incident in the Daintree were evidence of events which had occurred in the relationship between the appellant and the complainant. However, only if that evidence assisted in explaining the context within the relationship in which the charged acts occurred could it have been relevant. So far as I understand the reasoning of the judge who admitted the evidence his Honour was content to accept that merely because the evidence told of events in the relationship, even if unrelated to the particular charges, it should be admitted. He did not ask, as he should have, “to what issue in the trial does the evidence go” and in light of the answer to that question determine its admissibility after also considering the probative value and any potential unfair prejudice (s 135 and s 137).

37 It will be obvious that to determine the probative value of any evidence the issue or issues of relevance must first be identified. The evidence of the sexual assault of the complainant at a young age was of events which allegedly occurred approximately eight years before the charged acts. The trial judge did not identify, beyond saying that it formed part of the “relationship”, why the evidence should be admitted. It may, if this was a significant issue in the trial, have been relevant to explain a lack of resistance by the complainant or her lack of complaint in relation to the charged acts. However, the possibility of the jury reasoning from this evidence to the guilt of the accused was high. Before the evidence could be admitted consideration of the issues arising under s 137 was required.

38 The offences with which the appellant was charged allegedly occurred in 2002 and 2003. The events in the Daintree allegedly occurred at about the same time. Those alleged events made no relevant contribution to the context of the charged events. The complainant did complain about the alleged assaults to her boyfriend in February 2004 and participated in an ERISP in July 2004. The Daintree evidence was merely evidence of another occasion on which an assault occurred. There was no issue at the trial justifying its admission.

39 The evidence of the appellant viewing the complainant in the shower could never have been described as “relationship” or “context” evidence. This was effectively conceded by the Crown at the original voir dire hearing. It was evidence which would previously have been described as “evidence of a guilty passion.” It was undoubtedly tendency evidence. Because there was no issue which justified the admission of the evidence as relationship evidence and it was not proffered as tendency evidence it should have been rejected.

40 The difficulties which the admission of the evidence gave rise to is confirmed by the subsequent course of the trial.

41 After the jury had heard the recording of the complainant’s interview the trial judge gave them the following warning which is in conventional terms:

“Members of the jury, during the playing of that recorded interview you heard evidence of alleged misconduct by the accused on other occasions other than the two counts on the indictment. Now ordinarily it is not permissible to lead evidence of other alleged acts of misconduct. In the present case, that evidence was admitted to put the alleged acts relied upon by the Crown in context. It is admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into a true and realistic context. Otherwise you might wonder about the likelihood of apparently isolated acts occurring suddenly and without apparent reason.
You must not use the evidence of those other alleged acts of misconduct as establishing a tendency on the part of the accused to commit the offences of the type charged. It cannot be used as an element in the chain of proof of the alleged offences charged. You must not substitute the evidence of those other alleged acts of misconduct for the evidence of the specific offences charged. You must not reason that because the accused may have done something wrong to the complainant on another occasion, that he must have done something wrong on the occasions that are charged.
Before you can convict the accused in respect of either count on the indictment, you must be satisfied beyond reasonable doubt that those particular offences have been proved to be committed. Now, can we have the complainant brought back in please?”

42 The address to the jury of both the prosecutor and counsel for the appellant were relatively brief. The prosecutor told the jury that the Crown case depended very much on the evidence of the complainant. Early in his address he reminded the jury that the Crown does not have to prove every piece of evidence to the high standard of beyond reasonable doubt. He said:

“So the Crown doesn’t have to prove to you beyond reasonable doubt that [the complainant] was sexually interfered with when she was five and six, that she was interfered with every Saturday morning. That she was interfered with on the camping trip. That she was watched by her father in the shower.”

43 Later, in his address he said:

“The other support, and it depends on whether you’re prepared to give the evidence or not, comes of course from [TB]. Specifically he gives evidence of his father standing outside the window while [the complainant was] in the shower and that supports what [the complainant] says happened on many many occasions.
Again you may be prepared to make some allowance for [TB]. Remember again he was 14 giving evidence. He’s going back to events when he was aged only about 11. He’s a bit confused. I can’t reconcile the differences in his evidence. You wouldn’t be able to either. Confused about when things happened, he thought things happened on the first night whereas everybody seems to be saying it happened on the last night. He thought the championship went for four weeks, it went for only about half that. He thought there were a couple of dogs out there, there would seem maybe only one. Lots of things that you may not be able to accept so far as [TB’s] evidence is concerned. The major thing of course is that he initially told the police when he was talking about what happened, and bear in mind that this is some 12 months after when the police first speak to him, that his father was standing on tippy toes and then when he was asked questions about that he said he was actually standing on a white chair. It’s a matter for you, you might say ‘Well we just can’t accept [TB], can’t accept any of his evidence.’ Again, as I said, matter for you but if you get to that stage ‘No we can’t accept [TB] at all’ then that’s not favourable to your acceptance of the evidence of [the complainant]. Maybe dad was standing on his tippy toes, maybe dad was on a chair. [The complainant’s] evidence was that the shower screen wasn’t up, shower curtain, I should say, wasn’t up the whole time, that it changed and at different stages there were shower curtains that you couldn’t necessarily see through.
It may be, and maybe I’m drawing too long a bow and you may not be prepared to accept this theory at all but it may be that the accused was getting himself up to a height where he could look down over the shower curtain but as I said, what you make of [TB’s] evidence is entirely a matter for you. If you do accept that dad was out there when [the complainant] was in the shower, then that’s supportive of [the complainant].
The one thing that I would suggest to you is very supportive of [the complainant] and it may well determine how you’d come back with your verdicts, is what you make of the camping trip. Now the evidence of the camping trip and the Saturday mornings and what happened when she was five and six and the shower is all led as contextual evidence so that you’re not asked to consider the two charges on the indictment in a vacuum and asked to accept that just out of the blue one night when they were in the lounge room, the accused has tried to put his penis in her mouth, you would find it very difficult to accept that that just happened out of the blue or that in bed one night he rubbed his penis in and out between her legs. So it’s put before you so you can understand these two charges against the background of what [the complainant] says was a sexual type relationship that went on between her father and herself over a period of years and her Honour has given you some warnings about what you can make of that and what you can’t do with that particular evidence and she’ll reiterate that for you in the course of giving you the directions at law. But you are entitled to look very carefully at the camping trip and you’re entitled to make up your minds about what happened on that camping trip. Bearing in mind that the Crown doesn’t have an onus to prove beyond reasonable doubt but if you’re satisfied and accept what [the complainant] says happened on the camping trip, then that would make the rest of her evidence more credible and conversely, I would suggest to you, it would totally undermine the credibility of the accused and make it very difficult for you to believe his evidence.”

44 At a later point he referred to the evidence about the trip to the Daintree. He said:

“As I said, if you accept what [the complainant] says in relation to the camping trip, then converse to finding her credibility bolstered is that you have grave difficulty accepting what the accused had to say. It totally undermines his credibility, I would suggest to you.
At some stage when I was asking questions you recall he had difficulty remembering the ages of his children and yet he can tell you in great detail what happened each day of the holidays.
Only a small thing and what you make of it, it’s a matter for you of course but he originally said in his evidence that apparently [Y] was the one that suggested that the children come and get into bed with him. He maintained that when I first started asking questions in cross-examination, then he was saying he actually heard what was said, changed his tack. He said he heard it because it was coming from the lounge room. [Y] doesn’t support him, she says that she had a conversation with the children in the bedroom where they were.
His version is that on that camping trip, [TB] was scared of the Cassowaries and the noises in the bush. He’s supported in that by [DG]. It was put to [the complainant], she didn’t accept it all, she didn’t say that he slept in the vehicle.
The one person who it wasn’t put to, you might remember, is [TB]. [TB] wasn’t asked in cross-examination whether he was scared of the Cassowaries. He also wasn’t asked whether he slept in the vehicle.
At the end of the day, I would suggest to you, that you would reject the evidence of the accused. You have difficulty with the fact that both he and [Y] seemed to mirror image the evidence that they give. It’s almost like they were working off a script, they could both remember pretty much exactly the same things. That’s not something that will concern you so far as [the complainant] and [TB] is concerned, you wouldn’t think for one minute that they’ve got their heads together but it would cause you some concern when you assess the credibility and the evidence that’s given to you by the accused and [Y].”

45 It is apparent from these remarks that although the Crown Prosecutor had tendered the relevant evidence as “relationship” evidence, rather than confine its significance to providing a context for the complainant’s evidence in respect of which it was not suggested that there was a relevant issue, he told the jury that it could use that evidence to undermine the appellant’s credibility generally. Although, if there was an issue which justified such an approach, it may have been permissible to seek to persuade the jury that the evidence of other sexual activity placed the charged acts in context, making the complainant’s evidence in the absence of complaint more credible, the reality was that the prosecutor sought to persuade the jury that it could use the evidence of sexual activity on other occasions to be confident of the appellant’s guilt of the acts with which he had been charged. This is tendency reasoning: Qualtieri [120].

46 The position was not assisted by the submissions of defence counsel. Although he accepted that evidence of the earlier acts could be confined to evidence of the “relationship”, it was otherwise in relation to the Daintree incident. With respect to that matter although he argued that the jury should find that the event did not occur, he accepted that it was so closely related in time to the charged acts that the jury would be entitled to reason that if they accepted the Daintree incident did occur the appellant was more likely to be guilty of the charged acts. This also is tendency reasoning. Counsel said to the jury:

“Now then you’ve got a number of counts which the Crown says are relationship or contextual evidence and her Honour will give you directions that you don’t decide those counts, they’re there to put his relationship with his daughter in context and so you don’t come to a determination her Honour will say, in respect of those counts. It’s only the counts on the indictment.
But if I could take you to the Queensland and the last count. The Queensland incident. In my submission to you that they are so intertwined, they’re so close in time that if you don’t accept the evidence of one you wouldn’t accept the evidence of the other because you see, the Crown asked you to, this is what the Crown asked you to accept that [the complainant] went on holidays with her father and [DG] to Cape Kimberley, and remember my questions in cross-examination, I said to her, ‘Look your allegations are that there’d been a, up until this stage, and this is, I think September 2003, there’d been a history of sexual molestation yes and you suspected that something would occur while you were on holidays with him?’ ‘Yes.’ And in fact your allegations are it did occur and she said ‘Yes’ but, and then despite that you have the evidence of the video. ‘This is the best holiday I’ve ever been on.’ Now the Crown says ‘Well what she did through the day was great and she had a lot of fun but it was at night.’ Would you accept that. This young lady gave evidence that she was sexually molested every night at the camp site in the Kimberley. Not just one occasion but every night, that’s seven days, I’m sorry, seven nights. That’s her evidence, up there for seven nights. Every night. On the last night is the night, she says this, the last night she had consumed some alcohol. Now if the father was a sexual predator and wanted to get her drunk and all the rest, had his way with her, why wouldn’t he do that the first night, the second night, the third night, the fourth night, the fifth night, the sixth night and the seventh night. No, there’s no evidence of that, no alcohol consumed until the last night but she says ‘On that night I was drunk and I was sick and I went to bed early and she gives specific vivid, horrendous detail of what she said occurred but when she was asked what occurred on the earlier nights, ‘I was just sexually assaulted, he just assaulted me.’ ‘What did he do’? ‘Just assaulted me.’

There’s no detail of those nights but the very night she’s intoxicated, so intoxicated, she’s had so much to drink she vomits. But she gives all this specific detail and yet the detail of the other nights and it was open for the Crown to call all that and she was asked about it and she gave no detail, other than the fact, ‘Oh yeah he just assaulted me.’ It just doesn’t ring true. You probably all had a few to drinks or you’ve seen someone who over imbibed. The next night, or the next day you ask them questions or people ask you questions what happened and then just some things you just can’t remember but she remembers this in vivid detail. She says ‘Look I went over to my father’. There’s no disagreement of that ‘And we lay head to toe and he pulled me up on top of his body’ and he’s put to a position where her vagina was in his mouth and she stayed there for half an hour with not one word of protest. Just use your commonsense about that. Not one word. She didn’t even try and wriggle off or anything. For half an hour, about half an hour she said but it’s the very next day in the morning before they leave, she turns the video recorder on herself and says ‘It’s the best holiday I ever had’. I just ask you to use your commonsense. After this horrendous night, this horrendous seven nights, she’s turned the video on herself and said ‘It’s the best holiday I’ve ever had’. The Crown tries to say ‘Well gosh almighty, before she’s only had a day here and a couple of days here at Dreamworld, not bad, Dreamworld and some other place and this was long holiday that she’s had but what as she has described could never be in anyone’s wildest imagination be described as the best holiday anybody ever had yet these are the words that she used when she videoed herself in the presence of [DG] and her father. The best holiday, I’d hate to see the worst. But that’s what she says and that’s not forced upon her. There’s no evidence that that was forced, they were standing over her Say that on the video, that’s her spontaneous reaction. The day after this horrendous assault. But you see that’s only part and parcel of it. Then her father takes her home and there’s not a word said to the mother or [K] but we find out that within three weeks [the complainant] has come to the Central Coast and if you accept the accused’s evidence and [Y’s] evidence, she rings the father. She goes then, the father and [Y] go and pick up her up and [TB]. Just think about it. The young lady is 14 at the time. What would be the last thing you’d want after that holiday in the Daintree, Cape Kimberley. You wouldn’t want to see it again. You would recoil from the very very thought of this particular man but no we don’t have that. She goes and she stays with him and we learn one version, it’s the first night, on the other version it’s Sunday night and the other version it’s a Monday night. It’s for you to satisfy yourself which night it is but all the evidence is that four went into bed together. ..(not transcribable).. it was of the invitation apparently of [Y] but it doesn’t matter whose invitation it was, they were all there together. Now after what had happened in Queensland, the last place in the world you would be would be jumping into the same bed as your father, wouldn’t you? Why would you get in with him but in any case if you did get in and you feared the worst, because remember she said ‘He started to cuddle me before [Y] got out’ and I think she said ‘I started to go to sleep’ but then [Y] gets out and says ‘It’s too squashy’. Wouldn’t commonsense dictate that if [Y] got out you’d be using the same excuse. Why would you want to be, why would you want to remain beside the man who’s committed these horrible things upon you in the Daintree?”

47 In the course of her summing-up the trial judge indicated that she would not summarise all of the evidence. The trial was relatively short and her Honour was of the opinion, correctly in my view, that the evidence would be fresh in the jury’s mind.

48 Her Honour proceeded to warn the jury that because only two persons were present on the occasions of the alleged offences they may be tempted to regard their task as choosing between their competing versions. Her Honour told the jury that they should be mindful that their task was to determine whether the Crown had proved each element of each charge beyond reasonable doubt.

49 With respect to the “relationship” evidence her Honour said:

“As I told you during the trial, in addition to the evidence led by the crown, specifically directed to the particular counts in the indictment, the crown has led evidence of other acts of alleged misconduct by the accused towards the complainant.
They were incidents which are said to have occurred when the complainant was five or six at …., in the early hours of Saturday mornings at …. when the accused was working overtime, and he would go into [the complainant’s] bed and rub his penis between her legs, instances of watching her whilst she was showering at …, and the incidents which are said to have occurred on the camping trip.
I shall refer for the sake of convenience to those matters as evidence of the other alleged acts.
It is important that I remind you of the warning I gave you during the trial, and to once again explain the relevance of the evidence of those alleged other acts.
That evidence was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the crown to put the charges in the indictment in a true and realistic context. It is confined in other words to making the circumstances of the particular offences charged more intelligible.
As I told you, otherwise, you may [wonder] about the likelihood of apparently isolated acts occurring suddenly without any apparent reason.
If a complainant gave evidence of isolated acts of sexual misconduct a jury would be entitled to say to themselves, as persons of commonsense, well really it is very odd for there to be such isolated acts between these two persons, thus it is open to the crown to lead evidence of other alleged acts of a sexual nature between the accused and the complainant, and I have already referred you to the relevant evidence given in this case, in that regard.
However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as context evidence.
You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. Therefore, it cannot be used as an element in the chain of proof of the offences charged. You must not substitute the evidence of other acts for the evidence of the specific offences charged. You must not reason that because the accused may have done something wrong to the complainant on other occasions, he must have done so on the occasions charged.”

50 After giving these directions her Honour proceeded to further discuss the “other acts.” Although she told the jury that the evidence could not be used as establishing a “tendency” or as “an element in the chain of proof” she proceeded to give the jury directions as to the weight to be given to this evidence. Her Honour said:

“You must give careful consideration to the time frame in which the other acts are alleged to have occurred. The more remote the alleged sexual activity is, the less weight it is given. When you are considering the weight to be given to the evidence of the complainant about the … incident when she was five or six, you must remember, that at the time of that alleged misconduct, she was aged between five and six. And that is something which may affect the reliability of her evidence about that incident.”

51 In giving this direction her Honour was following the guidance given by the model direction in the Bench Book which I approved in Qualtieri (at [81]). The emphasis in the Bench Book on the care required when allegations of sexual misconduct at a time remote to the charged acts is made was probably included as a consequence of the remarks of Hunt CJ at CL in R v Beserick (1993) 30 NSWLR 510 (see 521-522). His Honour was writing in the context of the common law and the impact of the Crime (Sexual Assault) Amendment Act 1981. His Honour used the expression “relationship evidence” to describe evidence of “sexual desire” as well as evidence which placed a charged incident into its “true and realistic context.” It was in relation particularly to the former which Hunt CJ at CL directed his remarks about remoteness and the diminishing weight of the evidence.

52 Although the Bench Book has maintained this as an appropriate direction in relation to context evidence it has a capacity to mislead trial judges. It remains the case that the more remote in time from the offence charged less significance will attach to evidence of other sexual acts. If admitted as tendency evidence a caution as to the reliability of evidence remote to the acts charged is necessary. However, if the evidence is tendered only for the purpose of proving the context in which the offence occurred, if a caution was thought to be necessary the almost inevitable result will be that the risk of prejudice occasioned by the jury misusing the evidence would outweigh its probative value. In this event having regard to s 137 the evidence should be rejected. There may be cases where the evidence is properly admitted as “context evidence” and a caution is required. However, they will be rare.

53 It may be that because of the real risk that judges will be deflected from a proper consideration of the admissibility of evidence pursuant to s 135, the Bench Book direction should exclude reference to the caution. In the unlikely event that evidence remote in time is admitted, careful attention must be given, as with any case, to the appropriate directions.

54 The trial judge continued:

“Her evidence of what she says took place in more recent times however, does not attract such a warning, except for her evidence as to what took place on the last night of the camping trip. You have heard evidence that she was intoxicated. On her evidence she consumed four Vodka Cruisers, and six Dark and Stormy rum drinks. On the evidence of the accused, and DG she consumed four Vodka Cruisers and perhaps one Dark and Stormy rum drink.
The fact that she was so intoxicated that evening to the point where, on all of the evidence, she was vomiting, that may be something which affects the reliability of her evidence about that incident, and once again you need to scrutinize her evidence with great care before you rely on it, because of that circumstance.”

55 Although objection was originally taken to the admissibility of the evidence no difficulty was raised with the address by the prosecutor and no complaint was made following the judge’s summing-up. For the reasons I have indicated it should have been.

56 Although her Honour told the jury that the evidence was admitted solely for the purpose of placing the evidence of the particular act relied upon in a true and realistic context it did much more. The jury was told that they might otherwise view the charged acts as isolated and occurring without any reason but it is not apparent that this was an issue in the trial.

The proviso

57 It follows that the evidence to which objection was taken should not have been admitted at trial. Furthermore, the submissions of counsel and the directions of the trial judge demonstrate the error in admitting the evidence. This Court has an obligation to ensure that if a person is convicted he or she has been tried fairly and according to law. The appellant is entitled to be tried in relation to evidence which was properly admitted and dealt with in accordance with the Act. This did not occur. This is a case where it would be inappropriate to consider whether the conviction should remain undisturbed without the disputed evidence (see AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [23], [54] and CTM v The Queen [2008] HCA 25 at [120] ff where Kirby J who dissented in the result discussed the relevant principles). That evidence would plainly have been of considerable significance to the jury when determining whether to accept the complainant’s account of the circumstances relating to the offences charged and reject the appellant’s evidence. The convictions must be quashed. A new trial should be ordered.

ORDERS
1. Appeal upheld.
2. Conviction quashed. Remit the matter to the District Court for a new trial.

58 HIDDEN J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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