ES v R (No 1)

[2010] NSWCCA 197

New South Wales
Court of Criminal Appeal

CITATION:	ES v R (No.1) [2010] NSWCCA 197 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 July 2010
JUDGMENT DATE:	6 September 2010
JUDGMENT OF:	Hodgson JA at 1; Whealy J at 65; Buddin J at 66
DECISION:	(1) Leave to appeal granted. (2) Appeal allowed. (3) Convictions and sentences quashed. (4) Direct that there be a new trial.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted over objection – Requirements for admission as tendency evidence not satisfied – Whether evidence admissible as context evidence – Whether probative value outweighed by danger of unfair prejudice – Whether proviso should be applied.
LEGISLATION CITED:	Criminal Appeal Act 1912 ss 6, 8 Criminal Appeal Rules Rule 4 Evidence Act 1995 ss 97, 101, 110
CATEGORY:	Principal judgment
CASES CITED:	DJV v R [2008] NSWCCA 272 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333 Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 ST v R [2010] NSWCCA 5 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
PARTIES:	ES (appellant) The Crown
FILE NUMBER(S):	CCA 2008/2799
COUNSEL:	B RIGG (appellant) S DOWLING (Crown)
SOLICITORS:	Legal Aid Commission of NSW (appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2008/2799
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	8 May 2009

- 19 -

2008/2799

HODGSON JA
WHEALY J
BUDDIN J

6 SEPTEMBER 2010

ES v R (No. 1)

Judgment

1 HODGSON JA: On 2 March 2009, the appellant was arraigned before Nield DCJ on five counts of indecently assaulting the complainant, a female under the age of 16 years (counts 1 – 5), one count of committing an act of indecency towards the complainant, a girl under the age of 16 years (count 6), and one count of indecently assaulting the complainant (count 7). Counts 1 and 2 specified the place of each offence to be Busby NSW, and the date as between 1 June 1972 and 31 December 1972. Count 3 specified the place of the offence to be Busby NSW, and the date as between 1 January 1974 and 31 December 1974. Counts 4 and 5 specified the place of each offence to be Tuncurry NSW, and the date as between 1 January 1974 and 30 June 1974. Count 6 specified the place of the offence to be near Badgerys Creek NSW, and the date as between 23 October 1974 and 21 October 1975. Count 7 specified the place of the offence to be Busby NSW, and the date as between 1 May 1979 and 1 October 1979.

2 The appellant pleaded not guilty to all charges and was tried before the trial judge and a jury. The jury returned a verdict of guilty on counts 2, 4, 5 and 7, and not guilty on counts 1, 3 and 6. The trial judge sentenced the appellant to imprisonment for twelve months, with a non-parole period of six months, on counts 2, 4 and 7; and imprisonment for eighteen months, with a non-parole period of nine months, on count 5. The sentence on count 2 was to commence on 12 March 2009, that on counts 4 and 5 to commence on 12 April 2009, and that on count 7 to commence on 12 May 2009. Thus, the appellant’s last non-parole period expired on 11 January 2010, and the last sentence expires on 11 October 2010.

3 The appellant has appealed (and/or sought leave to appeal) against his conviction on counts 2, 4, 5 and 7.

Background facts

4 I will commence by setting out some background facts which can be accepted as not being in dispute.

5 The complainant was born in October 1962. She had an elder sister K born in September 1956, and a brother J born in about February 1965. Her father died in 1970. Her mother P formed a relationship with the appellant in about 1972, after which the appellant moved into the family home at Busby.

6 The family lived mainly in the house at Busby until 1980, although the family was in Tuncurry for a time in about 1974. The Busby house was sold in 1980, and about six months later the complainant went to live with her grandmother. The complainant did not have a great deal of contact with the appellant in the ensuing years, until 1999. The complainant married her first husband in June 1981, and the appellant gave her away at this wedding. In 1995 the appellant and P attended the christening of a son of the complainant, and the appellant and P also attended the wedding of the complainant to her second husband in 1997.

7 The complainant was diagnosed with cancer in 1999, and the appellant and P moved to a house in Wattle Grove next to the house occupied by the complainant and her husband. In 2001, the complainant and her family moved to Cowra, and a little later the appellant and P moved into the same house. After some months there was a dispute, and the complainant asked the appellant and P to leave, which they did. The appellant and P then moved to Young where they stayed about three years.

8 In 2004, the appellant and P moved back to Cowra to a house owned by the complainant’s son D.

9 On 17 March 2007, the complainant went to the Cowra house where the appellant and P were living. The complainant asked the appellant, in the presence of P, to admit that he had molested or interfered with her. The complainant then went to the police. The police recorded an ERISP interview with the appellant on 3 September 2007, in which the appellant denied improper conduct towards the complainant.

Crown case

10 The complainant gave evidence that after the relationship between her mother and the appellant commenced, her bedroom door was removed and replaced with a curtain, and that this remained the position for about four years. She said that at first the appellant would cuddle her all the time and want to kiss her all the time. Then, within weeks he’d start patting her on the bottom and progressing to fondling her, and at other times he’d rub her breasts.

11 The complainant gave evidence that he would sit her on his lap and move her around on his lap, and his penis would become hard and she would feel it through her clothes. This first happened probably within a couple of weeks of him moving in (count 1).

12 The complainant gave evidence that some time later, the appellant came into her room, and the complainant woke up. The appellant said he was looking for a dog, and was crouching. The complainant could see his hands moving around in his lap, and with the benefit of hindsight she knew he was masturbating. The complainant said to the appellant that there was no dog in the room, and the appellant pushed her back down on the bed and put his hand over her mouth and grabbed her breast with his other hand. The complainant heard her mother outside, and the appellant left; and the complainant heard the appellant telling her mother he’d been in her room because she was calling out in her sleep. The complainant went and told her mother that the appellant had said he was looking for a dog and had been touching her. The mother said she was probably dreaming. There was no charge in respect of this episode.

13 The complainant gave evidence that later again she was home from school sick, and her mother was at work, when the appellant came in. He asked how she was, stroked her arm, then stroked down her side, rubbed her bottom, touched her breasts and rubbed her vagina through her pants (count 2). When her mother came home, the complainant told her what had happened. Her mother became angry and asked her when she was going to stop making up nonsense. She also said “it’s alright for you because one day you’re going to leave home and have a family but I’m not going to have anybody”.

14 In 1974 the family was in Tuncurry on a working holiday, staying in a caravan park. The complainant gave evidence that late one afternoon, she came back to the caravan from the amenities block in her nightdress. The appellant was in the caravan and came up behind her and held onto her breasts (count 4). She was trying to push him away, and he turned her around and tried to kiss her, then pushed her onto a fold up bed and came down on top of her, and rubbed her vagina on the bare skin (count 5). Her brother came back towards the caravan, and the appellant went to meet him. The complainant left the caravan crying, pushed past both of them, and came upon her mother. Her mother wanted to know why she was crying, the complainant told her, and her mother said to stop this nonsense.

15 The complainant gave evidence that, also in 1974, she was in the swimming pool at the Busby house with her brother and the appellant, wearing a bikini. Her brother left, and the appellant moved to the ladder to climb from the pool. The appellant grabbed the back of her bikini bottom and pulled it to her ankles and pulled her back into the water. The appellant had his hand between her legs, grabbed her vagina from behind and was moving his hand between her legs (count 3). The incident stopped when the complainant accidentally struck the appellant in the face with her elbow, as she was struggling to get away.

16 The complainant gave evidence that some time later, when she was 12 or 13, she was in the front passenger seat of a water truck driven by the appellant at Badgerys Creek. The appellant pulled out his flaccid penis and testicles from the leg of his shorts, and asked her to touch him and play with him (count 6).

17 The complainant gave evidence that not long after her sister’s wedding in August 1977, while her mother was at work, she was in bed and the appellant came in and lay down next to her and was fondling her breasts through her nightdress. He took her hand and put it under his pyjama pants and held it against his penis. He kept telling her he loved her, she was his favourite, and now she was older they should be able to do more things together. She cried and resisted, and the appellant left when there was noise of her mother returning. There was no charge in respect of this incident.

18 The complainant gave evidence that on the birth of K’s child in May 1979, her mother flew to Townsville. The complainant went into her room and pulled her desk across the doorway. The appellant tried to get in, pushed the door open, and they argued. The complainant started to leave the room, the appellant grabbed her, they fell on the bed and the appellant was touching her breasts (count 7). She went into her brother J’s room upset and crying, and asked J to sleep in his bed.

19 The complainant gave evidence that after the Busby house was sold they travelled in a caravan for a while and things got worse; and she then left home. She also gave evidence that she had seen the appellant’s penis numerous times, and noticed it was uncircumcised.

20 The complainant gave evidence of a confrontation with the appellant on 17 March 2007. The complainant went to the Cowra home where the appellant and P were living, and said to the appellant in the presence of P “I need you to for once be a man and admit that you’ve molested me”. The appellant at first demurred, but then said “alright I admit I’ve touched you”.

21 The complainant’s sister K gave evidence that after the appellant moved into the Busby house in about 1972, the complainant started coming to sleep with her, and persisted in doing so despite being told not to by her mother.

22 K gave evidence that one afternoon in 1973 or 1974, when their mother was not at home, she was looking for the complainant to play. She went to the master bedroom, the door of which was half closed, and she opened the door. She saw the complainant sitting on the edge of the bed with her legs open and her pants and shorts around one ankle, with the appellant in front of her. He was looking at her genital area, and sort of had his fingers in there. The appellant said the complainant had said she was sore there and he was checking to see if she had a rash. (This evidence had been objected to by the appellant’s counsel, on the basis that its prejudicial effect outweighed its probative value, but the trial judge allowed it.)

23 The appellant’s wife P gave evidence that she had been in a relationship with the appellant since 1972 and that this relationship was ongoing. They were separated for a short time after 17 March 2007, including the time when she made a statement to police. She was to turn 75 in June 2009 and her memory was not good. The trial judge permitted the Crown to cross-examine her on the basis of her statement to police.

24 P did not give oral evidence supporting complaints by the complainant in the 1970’s; but agreed that in her statement to police, she had said she recalled the complainant telling her back in the 1970’s that the appellant had been touching her, but she neglected to believe her.

25 As to the confrontation on 17 March 2007, P gave evidence that the complainant was screaming at the appellant “you did it, you did it”. In her statement to police she had said that the complainant said “you touched me”, and the complainant and the appellant had a yelling match, and the appellant said “Ok I touched you”. P confirmed her statement to police that the complainant then said to her “see mum he did touch me, I was telling you the truth all those years back”; and the appellant said “I’m sorry for that. I didn’t mean to hurt you”.

26 The Crown tendered the appellant’s ERISP. The appellant denied all specific allegations and denied any inappropriate touching of the complainant. He said the complainant’s mother never let her wear a bikini. He said he never wore stubby shorts driving a truck, and he wasn’t allowed passengers in the vehicle. As to the confrontation, he said it coincided with the theft of his motor vehicle and he was very upset. There was a lot of screaming, his wife was crying, and although he might have said that he touched the complainant, he was trying to get everything sorted and to calm his wife. He denied touching the complainant inappropriately.

Defence case

27 The appellant gave sworn evidence denying all offences, and denying any inappropriate conduct with the complainant. He said there was no ladder in the swimming pool at Busby. He said he was not allowed to take passengers in the truck that he drove, and never did so. He had conversed with the complainant in the presence of others about whether he was circumcised.

28 The appellant gave evidence of a high level of stress and volume in the confrontation on 17 March 2007, and agreed that in that setting he eventually said “yes OK OK I touched you”. He had repeatedly denied this, but he was sick and tired of the screaming, and after half to three-quarters of an hour he made that comment to shut the complainant up.

29 Evidence had been adduced through the officer in charge of the investigation that the appellant had no convictions for assault or sexual assault.

Jury addresses

30 In his address to the jury, the Crown Prosecutor said this:

When you’re evaluating the evidence in the case, please also consider the evidence from [the complainant’s] sister [K], not just the fact that she walked in and discovered the accused having a look at [the complainant’s] genitals and his response, the red, flustered face et cetera. But also the way in which [the complainant] started trying to sleep with her at night.

…..

As I said to you, it’s not a question of the crown saying, well he’s not a witness you’d believe and that’s the end of the story. You must be persuaded on the account that [the complainant] gave you. But it’s not just a question of what’s called oath on oath, that is, one person saying A and the other person saying B. This is a situation where the accused himself admitted to what he did and is now trying to come back from it. It’s a situation where [K] sees him doing something, which with the wisdom of hindsight, was quite improper. Of course he denies it.

It’s not a case where you’d be thinking to you yourself, well 30 odd years ago, how could you remember? It’s a case where you would be satisfied, I’d suggest to you [the complainant’s] account, but you have the added benefit of the admission and you have the added benefit of the support to [the complainant’s] account by what her sister has told you.

Summing up

31 In the course of his summing up, the trial judge said this:

The complainant's sister gave evidence you will recall that on an occasion she when looking for the complainant for her to come and play with their brother [J] in the yard came upon the complainant and the accused in a bedroom where the complainant had her pants and underpants down around her ankles and the accused was between her legs and he said that he was examining her for her complaint of a rash. The complainant did not give evidence of that incident. The Crown relies upon that as corroborating as to the evidence of the complainant as to the conduct of the accused towards her. The complainant did not give evidence of that incident, she said when asked that there were more than fifty instances of what she terms misconduct and she was asked to tell the police about the incidents that had occurred she says to her which were strong in her memory or firm in her memory and that is why the Crown relied upon the seven specific instances that the complainant says was sexual misconduct by the accused.

…..

You heard from the complainant's older sister that on one occasion she observed circumstances which she said in hindsight appear to be different to the explanation that the accused gave.

You have heard the accused deny that he ever misconducted himself in a sexual way towards the complainant. These are my words, not his, but you known what I am saying. He has denied the complainant's allegations. He has denied the complainant's sister's allegation.

…..

In this particular criminal trial, let me tell you, the Crown does not need to prove the allegation made by the complainant's older sister of what she said she saw and which in hindsight she said she thought was now something different to what she was told then, and that is because that allegation although relevant, is not a charge the Director of Public Prosecutions, the Crown, has brought against the accused.

……

Now members of the jury, I do not propose to review the evidence of all of the witnesses. There are some things however that I propose to say about the evidence of all of the witnesses. The complainant has given evidence to you of seven instances that she can specifically remember in which she says, the accused sexually interfered with her. The Crown has relied upon five of those seven specific instances. In relation to the two, in respect of which the Crown does not present a charge, you are entitled to take it into account if you are satisfied beyond reasonable doubt that it occurred.

Equally, in relation to what the complainant's older sister has said about the specific occasion that she remembered, you are entitled to take it into account as corroboration, that is, something that supports the complainant's allegations, if you are satisfied beyond reasonable doubt that it occurred.

So what I am saying is, in relation to the complainant's evidence, in relation to the two instances in respect of which the Crown does not bring a specific charge, and in relation to the complainant's oldest sister's evidence of the incidents which she said she saw, you are entitled to take it into account in support of the complainant, if you wish to do so, but only if you are satisfied beyond reasonable doubt that the incidents occurred. If you are not satisfied beyond reasonable doubt that incidents occurred then you put them to one side.

32 There was no relevant objection to the summing up or request for further direction.

Issue on appeal

33 The appellant relies on the following grounds of appeal:

1. The trial judge erred in admitting the evidence of [K’s] observation of the appellant touching the complainant’s genitalia.

2. The trial judge failed to adequately direct the jury and/or misdirected the jury in relation to this evidence.

3. The trial of the appellant miscarried by virtue of the reception of inadmissible and prejudicial evidence, and the treatment of the same by the Crown Prosecutor and the trial judge.

34 I will consider in turn the following issues:

(1) Whether there was error in admitting the evidence of K (ground 1).

(2) Whether there was error in the directions to the jury (ground 2).

(3) Whether there was error in relation to other evidence (ground 3).

(4) Whether the appeal should be allowed having regard to the proviso.

Statutory provisions

35 The appeal requires some consideration of ss 97 and 101 of the Evidence Act 1995, which are as follows:

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:


(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(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.

(2) Subsection (1) (a) does not apply if:


(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Note . The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

36 It also involves some consideration of s 6(1) of the Criminal Appeal Act 1912, which is as follows:

6 Determination of appeals in ordinary cases

(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) …..

Admission of evidence

37 As noted earlier, K’s evidence about her observation of events in the master bedroom in 1973 or 1974 was objected to on the basis that its prejudicial effect outweighed its probative value. This objection occurred in circumstances where no notice had been given under s 97 of the Evidence Act, no direction under s 100 of that Act (concerning dispensation with notice) had been sought or given, and the Crown had stated prior to the empanelling of the jury that the Crown would not be leading tendency evidence.

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

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

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

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

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

40 Consistently with this, it is now well established that if evidence of uncharged acts is to be used in such cases in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272.

41 Accordingly, in this case the only basis on which the evidence in question could have been admitted was as context evidence. Context evidence can have probative value in various ways, such as to show that the alleged offences were not isolated incidents, and thus to explain lack of surprise or resistance or complaint by the complainant, or explain why the accused was confident enough to do the act.

42 In this case, when objection was taken to the evidence, there was no reference made to s 97 or s 101 of the Evidence Act, and these sections were not referred to by the trial judge. The trial judge addressed the question in terms of whether the evidence was relevant and if so whether its probative value was outweighed by its prejudicial effect. The trial judge held the evidence was relevant in that it corroborated the complainant, and that it was not unfairly prejudicial (Transcript 4/3/09, pp 3-4).

43 In my opinion, the evidence objected to potentially had considerable probative force, particularly because it was evidence that could be considered as corroborating the complainant; but it would have that force only as motive/tendency evidence. If it were considered as doing no more than enabling the charged acts to be seen in context, and as not supporting the complainant at all by way of motive/tendency reasoning, its probative value was at best extremely modest. However, since the evidence was not admissible in this case as motive/tendency evidence because of failure to comply with s 97, its considerable probative force in that character must be considered as being unfairly prejudicial. In my opinion, it is clear that accordingly the modest probative value as context evidence was plainly outweighed by the danger of unfair prejudice from its probative force as motive/tendency evidence (which, for the reasons I have given, must be considered as unfairly prejudicial).

44 In my opinion, the admission over objection of this significant piece of evidence was a miscarriage of justice within the first part of s 6(1) of the Criminal Appeal Act. As pointed out by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [18], this phrase has been treated as meaning any departure from trial according to law regardless of the nature or importance of that departure. Accordingly, in my opinion the appeal must be allowed in this case, unless the proviso to s 6(1) applies.

Directions to jury

45 It will have been seen from the extracts of the Crown Prosecutor’s address to the jury that the Crown Prosecutor invited the jury to treat K’s evidence as corroborating the complainant; and it will have been seen that in his summing up the primary judge referred to the Crown as relying on K’s evidence as corroborating the evidence of the complainant, referred to the appellant’s denial of K’s allegation, and said the jury was entitled to take it into account as corroboration supporting the complainant’s allegations, if satisfied beyond reasonable doubt that it occurred.

46 The requirement of satisfaction beyond reasonable doubt would only arise if K’s evidence of this incident had been admitted as tendency evidence, which it was not: DJV at [30], JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333 at [32]. In any event, the directions of the primary judge did nothing to combat the prejudicial effect of the wrongly admitted evidence, but on the contrary encouraged its use as corroboration of the complainant’s evidence, which it could not legitimately be.

Other evidence

47 The appellant also challenged the admission and/or treatment of other evidence:

(1) Generalised evidence of misconduct;

(2) Evidence of the incident when the appellant came into the complainant’s room supposedly looking for a dog;

(3) Evidence of the incident when the appellant came into the complainant’s room when the complainant’s mother was out; and

(4) Evidence concerning removal of the door of the complainant’s bedroom.

48 Ms Rigg for the appellant submitted that, while items (2) and (3) could possibly have had some probative value as context evidence, this could not have outweighed their prejudicial effect. She also submitted that the jury was not provided with appropriate guidance in relation to any of these items of evidence, and that the trial judge’s directions to the effect that it could use the two uncharged acts in support of the complainant if satisfied beyond reasonable doubt that they occurred, was apt to mislead the jury.

49 For the Crown it was submitted that item (2) was admissible to show complaint at the first opportunity; to enable the jury to understand the complainant’s evidence that, after a few complainants, she gave up complaining to her mother; and to explain why she stayed with the family so long, having been conditioned to this type of conduct. The Crown submitted that item (3) was admissible to explain the complainant’s conduct in barricading her door. It was submitted that the probative value in these respects was not outweighed by the danger of unfair prejudice.

50 The Crown accepted that the directions to the jury as to the use it could make of items (1) to (4) were inadequate. However, in relation to all these matters, the Crown submitted that the appellant had not demonstrated that there had been a miscarriage of justice which would justify the grant of leave under Rule 4 of the Criminal Appeal Rules.

51 As noted earlier, no objection was taken to any of this evidence, and no complaint made about the trial judge’s directions. In his address to the jury, the defence counsel used the uncharged acts among other matters, to discredit the complainant’s evidence, by suggesting her evidence was inconsistent with her continued contact with the appellant between 1980 and 2000.

52 Before this Court, the appellant tendered a communication from the defence counsel at trial asserting that he was not aware of the inadmissibility of the evidence of the uncharged acts or the lack of adequate directions, and that there was no tactical reason for not objecting to the evidence or complaining about the trial judge’s directions. In my opinion, this communication does not give substantial support to the appellant’s contention that a miscarriage of justice was shown.

53 But for the existence of grounds (1) and (2) concerning K’s evidence, I may have acceded to the Crown’s submissions based on Rule 4. But in relation to ground (1) and in relation to ground (2) insofar as it relates to the effect of evidence wrongly admitted, Rule 4 does not apply; so the appeal must be allowed unless the proviso to s 6(1) applies.

Proviso

54 It was submitted for the Crown that the proviso should be applied, because the Crown case was substantially supported by the admission of the appellant that he did touch the complainant when she was young.

55 In my opinion, this Court cannot be satisfied there was no substantial miscarriage of justice within the meaning of the proviso. It is true there was evidence of an admission by the appellant that he touched the complainant; but the appellant gave an explanation of this which the jury could rationally have accepted, if not persuaded by other evidence of the guilt of the appellant. The jury had before it the evidence of K concerning an uncharged incident, which should not have been admitted and which, particularly having regard to the directions concerning it, could have been very material in the jury’s deliberations.

56 I do note that the appellant raised good character in a particular respect, relevantly the absence of convictions for sexual assault. In those circumstances, it may well have been open to the Crown to lead the evidence of K to rebut this evidence of good character, without satisfying the requirements of s 97 and s 101: see s 110(3) of the Evidence Act. However, the evidence of good character was led after the evidence of K had been wrongly admitted; and the Crown concedes that, had that evidence been excluded, it is likely that defence counsel would have not led the evidence of good character. Accordingly, this consideration does not affect the question of miscarriage of justice.

57 For those reasons, I would not apply the proviso.

Conclusion

58 It would appear that leave to appeal is necessary, because the appeal is not a pure question of law. I would grant leave to appeal, allow the appeal and quash the convictions and sentences.

59 A question has arisen as to whether this Court should direct a verdict of acquittal or direct a new trial. The question is whether the Court considers that the miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order: see Criminal Appeal Act s 8, ST v R [2010] NSWCCA 5.

60 The last of the appellant’s non-parole periods expired on 11 January 2010, and the last of his sentences will expire on 11 October 2010. This is one factor weighing against ordering a new trial. Other factors are the significant lapse of time since the alleged offences were committed, and the stress and uncertainty that would be caused by such an order.

61 Factors in favour of ordering a new trial are that there was admissible evidence on which a jury, properly instructed, could convict (and it may be, if K’s evidence were to be admitted as tendency evidence in a new trial, that the Crown case could be considered very strong), the administration of justice favours resolution of the charges at a properly conducted trial, and the first trial was quite short.

62 A verdict of acquittal would tend to suggest that the appellant was innocent of the charges. If a new trial is ordered, the Director of Public Prosecutions may well decide not to put the appellant on trial, particularly because of the expiration of his non-parole periods.

63 On balance, I consider that the miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order.

64 For those reasons, I propose the following orders:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) Convictions and sentences quashed.

(4) Direct that there be a new trial.

65 WHEALY J: I agree with Hodgson JA.

I agree with Hodgson JA.

**********

08/09/2010 - To correct the names of Counsel - Paragraph(s) cover