ES v R (No 2) - [2010] NSWCCA 198

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
ES v R (No.2) [2010] NSWCCA 198
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2008/2799

HEARING DATE(S):
12 July 2010

JUDGMENT DATE:
6 September 2010

PARTIES:
ES (appellant)
The Crown

JUDGMENT OF:
Hodgson JA Whealy J Buddin J

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

COUNSEL:
B RIGG (appellant)
S DOWLING (Crown)

SOLICITORS:
Legal Aid Commission of NSW (appellant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault - Whether evidence of uncharged acts thereby made admissible.

LEGISLATION CITED:
Criminal Appeal Rules Rule 4
Evidence Act 1995 ss 97, 100, 101, 102, 110, 112, 135, 137, 192

CATEGORY:
Principal judgment

CASES CITED:
R v ATM [2000] NSWCCA 475
Browne v Dunn [1893] 6 R 67
BRS v R [1997] HCA 47; (1997) 191 CLR 275
Eastman v R (1997) 76 FCR 9
R v El-Kheir [2004] NSWCCA 461
ES v R (No 1) [2010] NSWCCA 197
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433
R v PKS (NSWCCA, 1 October 1998)
Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v Stalder (1981) 3 A Crim R 87
Toalepai v R [2009] NSWCCA 270
R v Zurita [2002] NSWCCA 22

TEXTS CITED:

DECISION:
(1) To the extent necessary, leave to appeal against conviction granted.
(2) Leave to rely on points not taken below refused, and appeal dismissed.

JUDGMENT:

- 28 -

IN THE COURT OF
CRIMINAL APPEAL

2008/2799
HODGSON JA
WHEALY J
BUDDIN J
6 SEPTEMBER 2010

ES v R (No. 2)

Judgment

HODGSON JA: On 10 March 2009, the appellant was arraigned before Nield DCJ on four charges of indecently assaulting the complainant, a person under the age of 16 years (counts 1-4), and one charge of committing an act of indecency towards the complainant, a person under the age of 16 years (count 5). Counts 1, 2 and 3 specified the place of each alleged offence as Wattle Grove NSW, and the date as between 1 September 1999 and 31 January 2001; and counts 4 and 5 specified the place of each alleged offence as Cowra NSW, and the date as between 1 March 2001 and 31 March 2002.
The appellant pleaded not guilty to all charges, and was tried before the trial judge and a jury. The jury found a verdict of not guilty on counts 1 and 5, and guilty on counts 2, 3 and 4. The trial judge sentenced the appellant to imprisonment for 18 months, with a non-parole period of nine months, on each of the three counts on which the appellant was found guilty, the sentence for count 2 to commence on 12 June 2009, that for count 3 to commence on 12 July 2009, and that for count 4 to commence on 12 August 2009. Thus, the appellant’s last non-parole period expired on 11 May 2010.
The appellant has appealed (and/or sought leave to appeal) from his conviction on counts 2, 3 and 4.
Background facts
I will commence by outlining some background facts that are common ground.
The complainant was born in May 1988. Her mother A is the stepdaughter of the appellant. The complainant was one of seven children, including her brothers D and J. In 1999, the complainant’s family was living in two adjacent Defence Housing Authority houses at Wattle Grove: the parents and younger children lived in one of the houses, and the older children, including the complainant, lived next door.
In about October 1999, following A’s diagnosis with ovarian cancer, the appellant and A’s mother P came to live with the complainant’s family, residing in the house with the older children. In early 2001, the complainant’s family moved to a house in Cowra, and the appellant and P lived there also until March 2002, when the appellant and P moved out of that house and went to Young.
In late 2004, the appellant and P moved into a house at Cowra owned by the complainant’s brother D.
On 17 March 2007, the complainant complained to A about the appellant’s conduct towards her, and she made statements to the police on 10 April 2007 and 26 April 2007. The police conducted an ERISP interview with the appellant on 3 September 2007, in which the appellant denied any improper conduct towards the complainant.
Crown case
The complainant gave evidence that at the end of 1999, she went into the garage at the Wattle Grove property, and the appellant came in and starting grabbing her on the bottom and kissing her on the cheek (count 1). The complainant was shocked, and asked the appellant what he was doing; and he just smiled and didn’t say anything. The complainant did not say anything to her mother, because she was very sick at the time with chemotherapy. Also, the appellant told her afterwards that if she said anything to her mother, her mother would die.
The complainant gave evidence that, a couple of weeks later, she was lying on her bed when the appellant came into her room and started rubbing her legs up to the top of her thighs and towards her crotch (count 2). She asked him to get out, and he did, saying “don’t tell Nan [that is, P] about it”.
The complainant gave evidence that once she was passing the garage to get to the front door, and the appellant was in the garage and called her in. He had a lemon Ruski (an alcoholic drink) and chocolates for her. He grabbed her on the breast outside her clothing and touched her on the bottom.
The complainant gave evidence that on one occasion she was in her bedroom, and the appellant came in and was rubbing her legs. She asked him to get out but he wouldn’t leave. D was in his bedroom next to her room, and he came in when the appellant wouldn’t leave, and they had words outside.
The complainant gave evidence that on another occasion the appellant called her into his bedroom and said he needed cuddles. She went in and lay on his bed next to him and gave him a cuddle. He started to touch her breast and rub her legs (count 3). P was in the kitchen, and when they heard her coming towards the bedroom the appellant told her to hide on the floor. The complainant walked out and P saw her, following which P and the appellant had an argument.
The family moved to Cowra towards the end of 2000 and beginning of 2001. Downstairs in the Cowra house was a games-room with a pool table.
The complainant gave evidence that the appellant asked her to play pool; but as she went to take a shot the appellant grabbed the pool cue and put it between her legs and lifted it towards her crotch (count 4). Her brothers kept walking in, and the appellant asked her to come into the bathroom with him so they could talk. In the bathroom he asked her to lay down on the floor but she would not. There was a knock on the door and the complainant opened it and it was her brother J. She closed the door and told the appellant that J wanted to use the toilet. The appellant said “well we’ll have to wait until they go”. They later exited the bathroom together.
The complainant gave evidence that on one occasion when A had gone to a conference, J and the appellant were looking after them. The appellant came upstairs and wanted to stoke the fire in the fireplace. He was wearing nothing but a blue bathrobe. He called out her name, and when she turned to look at him his penis was exposed (count 5).
The complainant gave evidence that some time later in 2002 she was in the bath and heard her phone ring in her bedroom next door. She heard A say “it’s not [the complainant] it’s A”. A knocked on the bathroom door and said they needed to talk. The complainant heard A tell the appellant to get out of the house, and she saw A throw his clothes out of the door. A then asked the complainant what was going on, but the complainant denied anything was, because the appellant had kept telling her that if she stressed out A, A would get back her cancer and die.
The complainant gave evidence that the appellant would grab her breasts and kiss her three to four times a week, sometimes trying to stick his tongue in her mouth. It happened more at Wattle Grove than Cowra. The appellant called her his “custard tart” because she was sweet and his favourite. He used to give her a lot of money, so much that she was the richest kid in school. He also used to give her chocolates and lollies.
On 17 March 2007, A came to the complainant’s house and they had a conversation about the appellant; and the complainant made statements to the police on 10 April and 26 April 2007.
In cross-examination, the complainant said she didn’t know of nicknames given to her brothers and sisters; and that the appellant used to give them money, but not on a daily basis like she was getting. She didn’t deny she had a good relationship with the appellant until 2007, and agreed he had fixed her television and helped her move. The complainant denied she was in the bathroom with the appellant because they were hiding from J. She said she had told the police that when they were in the bathroom, the appellant said he wanted to jump out of the window, because he had said that.
The complainant agreed that one night in Cowra she had gone out late and arrived at the appellant’s house at 3 am, and stayed there the night. She agreed that on one occasion the appellant had come to her house when A was on holidays, to help her to get rid of a snake. She said she’d rung A and A had rung the appellant, on that occasion. She agreed she had asked the appellant to take her to her job at KFC when A couldn’t take her.
The complainant’s mother A gave evidence that she saw little of her own mother P and the appellant for about 20 years. A was diagnosed with ovarian cancer in October 1999, and then P and the appellant came to Wattle Grove to help out when she was having treatment.
A gave evidence that in 2001 her son J said to her “I think there’s something going on between [the complainant] and [the appellant]”. He said he had been walking through the poolroom downstairs when he saw the bathroom door open and the complainant was in there with the appellant standing behind her; and when they spotted him, they shut the door quickly and he felt it was unusual. He said he knocked on the door and he could hear them discussing things between themselves. After a period of time, the door opened and they both came out. He said the complainant appeared quite upset and had her head down and left quickly. He asked the appellant what was going on, but he said nothing. A then went down to see the complainant who was crying on her bed, and asked her what was wrong. The complainant kept crying but eventually said nothing was wrong. A then approached the appellant and asked him what was going on, and he replied nothing.
A gave evidence that in March 2002, the complainant was in the shower and she heard the complainant’s phone ring. She picked it up and said “hello”, and heard the appellant say “what are you doing?” in a “really sleazy sort of way”. She said “what?” and he said “come downstairs and play with Poppy”. She then said “it’s A, not [the complainant]”, and the appellant hung up. A said she and the complainant sounded alike on the phone. A asked the complainant why would the appellant ring her, and the complainant said she didn’t know. A went and found the appellant sitting outside in his car drinking beer. The car was facing down the driveway, opposite the upstairs bathroom window where the complainant was having her shower. A confronted the appellant and he said he was just mucking around. A said he shouldn’t be ringing the complainant and saying those things to her, and they argued. P came out, and A told her she wanted the appellant to leave. P said that if the appellant went, she would have to go. A asked them both to leave, which they did.
A gave evidence that she had intermittent contact with the appellant and P over the next couple of years. In December 2004 the appellant and P moved to a house in Cowra. On 17 March 2007, A asked the complainant whether the appellant had ever done anything with her that she felt was inappropriate, and the complainant said he had touched her on numerous occasions. A confronted the appellant with this allegation, and then contacted the police.
In cross-examination, A denied that the appellant and P left the Cowra house because there was a blow-up because she thought they were talking about her behind her back. A said she didn’t contact the appellant about the snake in the complainant’s yard, and didn’t tell the complainant to contact the appellant.
The complainant’s brother D gave evidence that at Christmas 1999 he was sitting at his desk in his room at Wattle Grove when he heard an argument between the complainant and the appellant outside the complainant’s room. He asked what was happening, and the complainant said nothing but the appellant said “she’s a whinging bitch”. The appellant was a bit intoxicated. J came and stood between him and the appellant because they were getting a bit agitated. J telephoned A who came home from a party and calmed D down. D was not cross-examined.
The complainant’s brother J gave evidence that he recalled an argument between the complainant and the appellant, when the complainant was telling the appellant to leave her alone. D was also there. He heard the appellant call the complainant a little bitch or something like that. The appellant appeared to be intoxicated. The argument between the appellant and D got rather hostile, and he stood between them.
J also gave evidence that during the Christmas holidays in 2001 he was walking through the poolroom and saw the appellant and the complainant in the bathroom together. When they saw him they shut the door. J knocked on the door and asked them what was going on. The appellant replied that it was all good. J heard the complainant say “let’s just walk out”. J stood back and waited, and then the door opened and the complainant rushed out. The appellant told him to mind his own business. J talked to D, and they decided to tell A.
Detective Sergeant Sharwood conducted an ERISP with the appellant at Cowra Police Station on 3 September 2007. In the ERISP the appellant denied any improper conduct towards the complainant, and said that the first time he was aware of the allegations was in March 2007. He said he had always had a good relationship with his step-grandchildren, and treated them all the same, and had nicknames for all of them. As regards the incident in the bathroom, he said he and the complainant had been playing eight ball, and when they heard J coming they decided to hide from him. He denied saying he wanted to jump from the bathroom window, and said it was too small.
Detective Sergeant Sharwood took photographs of the bathroom window, and took measurements of the window and of the drop to the floor. He confirmed that the appellant had no convictions for sexual or violent offending.
Appellant’s case
The appellant gave evidence, specifically denying the allegations made against him by the complainant. He said he had a normal grandfather/granddaughter relationship with the complainant, and had nicknames for all his grandchildren.
The appellant denied that he had an argument with the complainant that her brothers had witnessed.
As regards the bathroom incident, he said he was playing a joke on J, and when he opened the door J had said “sprung ya”. He said to J nothing was going on. The complainant suggested he jump through the window, and he said “what for? I’ve done nothing wrong”.
The appellant gave evidence that the dispute between A and him and his wife P was about money, and the reason they left Cowra was because A accused him of talking behind her back.
The appellant gave evidence that the complainant had rung him about the snake, and had done so twice because the snake came back; that he and P helped the complainant move house with their box trailer; that he delivered a washing machine to the complainant at her flat; that he helped her with her driving lessons; and that he had on occasions taken her to her job at KFC.
In re-examination, he gave evidence that the dispute about money concerned money which he and P got from the sale of some land, which was used for the guarantee for A when A and her husband purchased the Cowra property.
Crown reply
In reply, A gave evidence that the appellant and P did not act as guarantors in relation to the purchase of the Cowra property. In cross-examination, A was shown a letter from the ANZ Bank showing a term deposit being used as security for her loan, and A said she was not aware of this; and she denied her dispute with the appellant was because there was a delay in clearing this.
Jury addresses
The Crown address to the jury included the following (as recorded in the transcript):
Usually in cases such as this it comes down to what the court sometimes call oath on oath, that is, you've got some young person saying, this happened to me, and some older maturer person saying, No I didn't do that. It’s a bit more in this case. There's the evidence of [J], the evidence of [D] and the evidence of [A] and I'll come to what each of them says to you about particular incidents.
First of all I'd like to take you to [D] and what he tells you about the event at Woolmer Crescent - Woolmer Court I should say at Wattle Grove late in 1999.
Now he heard a noise as he said to you on page 47, line 48, "I was sitting... was going on." Question, "It was the accused and your sister [the complainant]", line 16, page 48. No verbal reply. Question, "And what was... nothing's happening. I believe he said" - meaning the accused -"she's being a whingeing bitch." A bit of difference to custard tart you might think. "And I said", question, "And what did you say... did your brother [J] I said", line 46, page 48, "Again, how far were you... over a metre."
Top of line page 49, "[J] I said... where she was." Now I'd ask you to remember this too that there were no questions asked of that witness by Mr Walsh about the event but the accused in his evidence said it didn't happen, it never occurred.
The opportunity to ask the witness a bit of detail about it. No. You might just think that that's a bit strange isn't it. Here is a witness saying there's a heated protracted argument. He's accuses calling the complainant a whingeing little bitch. Never put to him as wrong, didn't happen, didn't occur. Nothing like that. No questions.
[J] again talking about events at the end of 1999 at Woolmer Court. Question, line 12, page 52, "What could you hear [the complainant] saying... a bit distraught." Question line 32, "Did you hear... diffuse the whole situation."
And again the pool room incident at p 53, line 24, "Do you recall what it was"? Answer, "I walked through.. mum what happened? Yes". And again in cross-examination by Mr Walsh, "In relation to the... don't recall that". There was no questions about the incident in the pool room. I'd remind you too of what [A] told you about the incident in the pool room, p 33, "Do you remember your son... [the complainant] was okay". And you'll remember she went down and saw [the complainant], she was crying but wouldn't say anything to her. She then I went down and saw the accused and he of course said "Nothing". "I just wanted... opinion on it". Remember this is a 13 year old girl, for his wife who's 7 years older than he is.
And you'll recall the evidence too about the bathroom incident, he was sitting downstairs in a car, [the complainant’s] in the shower, the phone rings and he said words to the effect "come downstairs and play with Poppy". Now think of the appropriateness of that when it's not a 3 or a 4 year old, it's a 13 year old, 12 year old, drunk or been drinking and saying in what [A] describes as a sleazy voice. And then the argument about what he was doing and [A] asked them to leave the house, nothing to do with money, everything to do with the way the accused was behaving.

The address of Mr Walsh, counsel for the appellant, included the following:
She then tells of another incident which is not one of the charges. This is where apparently there was some - "where [D] came in", she said, and pop and [D] had words and stuff outside. She said, a question was put to her by the Crown prosecutor in evidence-in-chief, "do you remember seeing anybody else at that stage?", she said, "no". She makes no mention of [J]. It would appear that her nan was somewhere in the house.
…..
Now what about this. Clearly, someone's lying. We don't know who is but someone must be lying when you look at this evidence. What about the significant differences between what [A] says – [A] and [the complainant]. The fixing of the TV. Remember she lives in the flat and I put it to her that her pop went down and fixed the TV. She says this, this is [the complainant], "I rang my mother. My mother organised for pop to come over". [A's] evidence, "did you ask the accused to do that?" Answer, "no". "Do you remember what I'm telling you about the television not working?" "No". Moving in to the flat.
[A] says, about the accused, "he did help but my mother and stepfather helped a lot more than he did", She agreed in cross-examination that the accused's box trailer was used, "but my stepfather", she said, "also had a box trailer so that was helping as well". The mother says, "no the accused didn't, he wasn't there. No, my husband and I moved her. He didn't help her move. He wasn't there." You see there's a litany. There's a litany of lies somewhere in the prosecution evidence. it goes on. It gets better. The snake. [the complainant] says, "I rang mum and mum rang pop to come and deal with it". Mum, she says, she never contacted the accused nor did she ask [the complainant] to contact him but of course, [the appellant] says he went up there. [the appellant] says he went up there. [the appellant] says he went up looking for a snake. [the complainant] says there was a snake there.
Summing up
In his summing up to the jury, in dealing with the question of credibility of witnesses, the trial judge said this:
In relation to [D], as learned counsel for the Crown pointed out to you, he gave evidence about an incident that he said had occurred involving the complainant and the accused which, to some part of it, involved him and then to a later part of it involved his brother [J].
Learned counsel for the accused did not cross-examine [D]. That means, members of the jury, that the accused did not challenge anything that [D] had said. In a court trial such as this where a party's legal representative does not challenge a witness as to what the witness has said, then the presumption is that everything that that witness has said is not challenged. However, in this trial, notwithstanding that [D] was not cross-examined by the accused counsel, the accused denied the incident about which [D] had given evidence.
Notwithstanding the accused's denial of it members of the jury, you are entitled to accept, if you wish to do so, the unchallenged evidence of [D] as to his hearing this dispute, if that is what it was, between the complainant and the accused and into which he later became involved and in which his brother [J] also later became involved.
In dealing with the complainant’s evidence, the trial judge said this:
Members of the jury, in a general sense this case is determined by your acceptance, or otherwise, of the evidence of the complainant. That would not surprise you and it should not surprise you, because in relation to the events about which the complainant has given evidence, except for peripheral detail, the only people present on what she has said, were her and the accused. Only two people, of all the people in the world, over six billion people, know what, if anything at all, happened on the occasions about which the complainant gave evidence, the complainant herself and the accused himself.
Because the Crown's case relies upon your acceptance of the complainant's evidence supported in some respects, as I will tell you shortly, I tell you members of the jury you must scrutinise her evidence with care and caution. There are reasons, members of the jury, I tell you to scrutinise the complainant's evidence with care and caution.
The first reason, I have mentioned it already, are that, except for peripheral things, the only people in the world who know whether something happened, and if it did what it was, are the complainant and the accused. The second reason is where, as here, there has been a delay in making a complaint, albeit that in relation to what the complainant says, as I have said already there is peripheral evidence, the accused or the person against whom the complaint is made or the person against whom the complaint is made, might suffer a disadvantage because of the lapse of time.
If something happened on a particular day to somebody and that person immediately complained about it to someone, then the person against whom the complaint is made might be able to say that did not happen or did not happen that way or someone else was there to see what had happened, so that the person against whom the complaint is made might be able to readily answer the complaint or readily prove the complaint to be wrong.
In this case the complaint is not specifically made against the accused until 17 March 2007 of events alleged to have occurred in relation to three counts of the indictment 1 September 1999 and 31 January 2001. And in relation to the other two counts of the indictment between 1 March 2001 and 31 March 2002. So members of the jury, when you are in the jury room, scrutinise the complainant's evidence with care and caution because of the delay that has occurred in the specific allegations being made.
The third reason you must scrutinise the complainant's evidence with care and caution is that - and it is something I have told you at the very beginning and I am going to repeat shortly - in a criminal trial it is for the Crown to prove the guilt of the accused and the accused does not have to prove anything. So in this trial members of the jury, because we are dealing - you are dealing, I am not dealing with anything, the twelve of you are dealing with the witnesses and the evidence - because you are dealing with allegations of indecent sexual activity involving two people, because you are dealing with those allegations made on 17 March 2007 of events some years earlier, and because this is a criminal trial in which the Crown bear the burden, onus or obligation to prove the guilt of the accused, you must scrutinise the complainant's evidence with care and caution.
I tell you members of the jury that you do not look at the complainant's evidence in isolation of all the other evidence, you have been asked to look at all the evidence. You are required, as the judge of the facts, to look at all of the evidence. You do not just consider the complainant's evidence about one allegation in isolation of everything else, you look at the complainant's allegations in relation to each count, admittedly separately and distinctly from the others, but taking into account all of the other evidence generally.
Later, the trial judge told the jury that they must consider the evidence in relation to each of the charged offences, and make a decision in relation to each of them as if it were the only one.
In dealing with evidence of uncharged acts, the trial judge said this:
I want now to comment upon some and I emphasise some of the evidentiary material. The complainant told you in answer to the Crown Prosecutor's question:
"Over the period that the accused [appellant] was living with you, either at Wattle Grove or at Cowra, did this type of behaviour happen other than the matters that you have told the court about?"
and she answered:
"Yes".
The Crown Prosecutor asked:
"How often?"
and she answered:
"Three, four times a week".
And the Crown Prosecutor asked:
"What did it consist of?"
and she answered:
"Him kissing me, like grabbing my breasts and stuff as well".
And the Crown Prosecutor asked:
"When you say he kissed you, how did he kiss you?"
and she answered
"Sometimes he'd kiss me on the cheek like if someone would kiss their normal granddaughter. Other times he'd be trying to stick his tongue into my mouth".
And the Crown Prosecutor asked:
"Do you have a recollection as to places or dates or times when these other events occurred?"
and she replied:
"They were pretty much at Woolmers Court in 6 Woolmers Court but I can't remember the dates and times."
and the Crown Prosecutor asked:
"Did they happen at Cowra as well?"
and she replied:
"Not so much in Cowra because I was older and I was hardly ever at home."
Members of the jury, that evidence led by the learned Crown Prosecutor is general evidence to put the allegations that the Crown Prosecutor specifically makes against the accused into context. I tell you this, you must not reason that because the accused might have done something on some other day, he might have done the specific allegations relied upon by the Crown. It would be quite improper to reason that because the complainant has said that there were all of these other instances that he must have committed the five specific allegations made by the Crown. You must not reason in that way. That evidence is merely to put into context the specific allegations made by the Crown and let me remind you that you are here concerned with the five specific allegations made by the Crown against the accused.
The second thing I want to say to you is that the Crown Prosecutor led from the complainant two specific events or instances which are not two of the five events or incidences specifically relied upon. The first incident was and I shall read the complainant's evidence to you:
"Do you remember another event happening at Woolmers Court in the garage?"
asked the Crown Prosecutor to which the complainant said:
"Yes, I just got home from a friend's house and I was walking because you had to walk past the garage to get to the front door and I was walking like through the door and [appellant] was in the garage and he called me in there and he had like a lemon ruski which is like an alcoholic drink and chocolates for me. I walked in there and he was grabbing my breast on the outside of my clothes."
That is not a specific incident relied upon by the Crown Prosecutor. Members of the jury, you can only rely upon that incident in support of what the complainant says about the five specific incidents relied upon by the Crown if you are satisfied beyond reasonable doubt that it happened. If you are not so satisfied, you cannot use it in support of the complainant's evidence.
The other incident was this. A question from the Crown Prosecutor:
"Do you remember another event happening some time like that?"
and the complainant answered:
"In my bedroom, once again at 6 Woolmers Court, he was once again like rubbing my legs and stuff and I asked him to get out and he wouldn't leave and [D] my older brother was in the room, like in his bedroom which is right next door to mine and because Pop wasn't leaving and stuff, [D] came in and they had words and stuff outside."
This is not one of the five specific incidents relied upon by the Crown. This is another separate and distinct incident not relied upon by the Crown. This is the incident the Crown Prosecutor submitted to you that was in part witnessed by [D] and [J]. In relation to this incident, the Crown Prosecutor asked the complainant:
“Do you remember seeing anyone else at that stage, that is when [D] came out and he, that is [D] and the accused had words?"
The complainant answered:
"No".
You will remember the evidence of [D]. That evidence was not challenged by way of cross-examination by learned counsel for the accused and he told you about an incident in which he heard arguing from his sister's room, he went to see what was happening, he fell into an argument with the accused, his brother [J] came upon the scene, his brother stepped between him and the accused and I am paraphrasing. He then took the complainant to the adjoining home and at some stage [J] said Nan, the accused's wife came upon the scene.
So you can see members of the jury that there is a difference between what the complainant says about whether or not anyone other than [D] was there and what the others say. Now, as with the other instance to which I have referred your attention, you can only take this into account in support of the complainant if you are satisfied beyond reasonable doubt that this event occurred.
The accused you will remember specifically denied either of these two events, the one in the garage and the one in the complainant's bedroom subsequently involving on [D] and [J’s] evidence them. He denied those specific events as he denied all the events had occurred.
In dealing with the appellant’s evidence, the trial judge said this:
Members of the jury the accused has said that not only did he not commit any of the specific instances relied upon by the Crown or the others mentioned by the complainant, one of which was mentioned by her brothers, that he was in every way what you would expect of a grandfather. …
No complaint was made and no further directions were sought by the appellant’s counsel.
Issues on appeal
The appellant relies on a single ground of appeal:
1.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.
Five particulars of this ground have been given:
1)The generalised evidence of ongoing misconduct was inadmissible;
2)The evidence of the two specific uncharged acts and the circumstances surrounding them was inadmissible;
3)The evidence of the complainant and her mother relating to a phone call to the complainant’s mobile phone was inadmissible;
4)His Honour failed to provide any or any adequate direction, and misdirected the jury, on the use to which the evidence could be put;
5)The evidence had consequential problems beyond its own inherent prejudice, in that it raised issues distracting the jury’s attention, introduced the prejudicial issue of the appellant’s use of alcohol, and established a false framework for assessing the credibility of the complainant and appellant.
However, none of the evidence had been objected to at the trial. There are objections recorded at pp 35 – 36 of the transcript of 10 March 2009; but the first is to a conversation between A and P, and the second is to A’s expression of her attitude towards her mother. Neither objection was to any part of the evidence now the subject of complaint. As mentioned earlier, no issue was raised as to the trial judge’s directions.
Submissions for the appellant
It is convenient first to set out the submissions for the appellant on all issues.
Ms Rigg for the appellant submitted first that evidence was admitted for which there was no basis:
(1)Generalised evidence as to sexual misconduct against the complainant;
(2)Evidence as to the incident when the complainant was called into the garage by the appellant;
(3)Evidence as to the incident which led to some kind of argument involving the complainant’s brother D, and perhaps also J; and
(4)Evidence of the telephone call taken by the complainant’s mother.
Ms Rigg submitted that none of this evidence had probative value as context evidence; and that the requirements for its admission as tendency evidence under ss 97 and 101 of the Evidence Act 1995 had not been satisfied. Item (4) in particular was highly prejudicial.
Ms Rigg submitted there was no direction to the jury at the time of admission of this evidence as to how it was to be used; and although there was some direction given in the trial judge’s summing up, that direction was inadequate, in particular in that it failed to specify how the alleged context of the relationship was relevant. In fact, it was not relevant.
Ms Rigg submitted that the trial judge’s summing up failed to warn the jury of three matters from the standard Bench Book direction, approved in Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [81], and in Toalepai v R [2009] NSWCCA 270 at [31], namely:
(a)That they must not use evidence of other acts as establishing a tendency to commit offences of the type charged;
(b)That the evidence could not be used as an element in the chain of proof of the offences charged; and
(c)That they were not to substitute evidence of the other acts for the evidence of the offences charged.
On the contrary, Ms Rigg submitted, the trial judge directed the jury that if they found the uncharged incidents proved beyond reasonable doubt, they could use them in support of the complainant’s account.
Ms Rigg submitted that there was factual inaccuracy in the trial judge telling the jury of the Crown’s submission that the second of the uncharged acts was witnessed in part by D; and that the trial judge erred in telling the jury that because D was not cross-examined, the jury was entitled to accept his evidence as unchallenged. This was contrary to the authority of the High Court as to the very limited role for Browne v Dunn [1893] 6 R 67 in criminal trials; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [41] per Gummow, Kirby and Callinan JJ. The trial judge suggested to the jury that they consider whether the complainant’s evidence was supported by other witnesses, in such a way as to suggest her evidence was supported by D; but he did not refer to the fact that, contrary to the complainant’s evidence, neither brother observed any argument in the bedroom.
Ms Rigg submitted that the jury were not given any direction as to the use to be made of A’s evidence concerning the telephone call; that evidence concerning an alleged financial dispute was an irrelevant distraction; and that evidence concerning the appellant’s use of alcohol was also irrelevant.
Ms Rigg submitted that the appellant had lost a chance of acquittal fairly open to him, and that leave should be granted to rely on these points pursuant to rule 4 of the Criminal Appeal Rules. I note that before this Court, the appellant tendered a communication from the defence counsel at trial asserting 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.
Decision
In my opinion, leaving aside the corroborative effect that evidence of the complainant’s brothers and her mother A might have had, the evidence identified by Ms Rigg was admissible as context evidence.
To the extent that this evidence came from the complainant herself, in my opinion it did no more than fill out what was, on the complainant’s account, a rounded and realistic picture of the relevant relationship between herself and the appellant.
As put by the Crown, the evidence of generalised misconduct, together with evidence that the appellant gave the complainant money and lollies, and said that if the complainant told her mother then her mother’s cancer would return, was relevant as placing in a realistic context the evidence concerning the charged acts, inter alia explaining seeming lack of surprise and resistance, and also lack of complaint: see HML v R [2008] HCA 16; (2008) 235 CLR 334 at [9], [431], [449]. The other two uncharged acts are simply particular examples of this wider conduct; and again, leaving aside any question of corroboration, was relevant on the same basis.
In my opinion also, leaving aside any corroborative effect from the evidence of other witnesses, the probative value of this evidence as context evidence was not outweighed by any danger of unfair prejudice. The crucial question before the jury was whether they accepted beyond reasonable doubt the complainant’s evidence of the charged acts; and evidence by the complainant herself of the context in which the charged acts occurred would not in my opinion be considered as unfairly or unreasonably bolstering the credibility of the complainant, as against that of the appellant, in relation to the charged acts.

More problematic is the evidence of the complainant’s brothers concerning the argument said to have occurred after one of the uncharged acts, and the evidence of the complainant’s mother concerning the telephone call from the appellant.
As regards the evidence of the brothers, if this is regarded as corroborating the complainant’s evidence of an uncharged act, and therefore supporting her credibility against that of the appellant, in my opinion this should, if objected to, have been rejected.
To the extent that this evidence went to credibility alone, it was inadmissible: Evidence Act s 102. Its admissibility must thus depend on its relevance as support to the complainant’s evidence of the occurrence of the uncharged acts; and in circumstances where there this evidence was not admitted as tendency evidence, I would have considered there was a danger of unfair prejudice outweighing its probative value: see ES v R (No 1) [2010] NSWCCA 197 at [38] to [43].
However, in this case the evidence was not objected to; and the appellant’s counsel at the trial used the improbability of improper behaviour by the appellant when the complainant’s brothers were around to support the appellant’s defence, and he also adverted to conflict between the evidence of the complainant and that of her brothers (concerning whether J became involved). Although the trial counsel has asserted there was no tactical reason for failing to object, I do not regard this assertion as providing substantial support to a contention that there was a miscarriage of justice. Having regard to the way the trial was conducted, I would not grant leave under rule 4 to the appellant to rely on the admission of this evidence.
As regards the evidence of the mother, in my opinion this evidence was relevant as again tending to fill out a realistic picture of the relationship between the complainant and the appellant (in the same sort of way as the evidence of gifts of lollies and money). However, to the extent that it could be considered as providing corroboration to the evidence of the complainant, it would be as evidence of a sexual interest of the appellant in the complainant, which would normally be admissible only as tendency evidence: ES (No 1) at [38] – [43].
On the other hand, it is arguable that its relevance as context evidence is stronger than that of other context evidence in this case. The evidence led to a specific enquiry by A of the complainant as to why the appellant would be ringing her on the phone, and the complainant saying she didn’t know (or as the complainant herself said in evidence, A asking her what was going on and the complainant denying anything was). That exchange could be considered as confirming a continuing degree of inhibition in the complainant from talking even about telephone calls, arising from concern about her mother’s health, contributing to the explanation for acceptance of the appellant’s conduct and lack of early complaint. The evidence was also part of the history of the family relationships, explaining why the appellant left the complainant’s home. Its relevance in this regard was accepted by the appellant’s counsel, in that an alternative explanation in terms of alleged financial dispute was offered. That is, the appellant’s counsel at trial not only did not object to this evidence, but sought to advance the appellant’s case by leading evidence of a contrary explanation.
Thus, while it may be that if this evidence had been objected to it should have been rejected, the evidence was not objected to, and the appellant took issue with it and sought to support his defence by claiming that the explanation offered for his leaving the house was false. Again, I do not think that the admission of this evidence, in the light of the way the trial was conducted, gave rise to a miscarriage of justice justifying leave under rule 4.
As regards the evidence of alcohol, this was raised in the appellant’s ERISP, and the appellant gave evidence that he stopped drinking in 1994 and 1995. In my opinion, the evidence of D and J that they observed the appellant to be intoxicated during the 1999 incident was a legitimate part of their account of it; and cross-examination of the appellant on his alcohol use was also legitimate.
As regards the directions by the trial judge, I accept that, subject to what I say later about character evidence, the trial judge should have explicitly directed the jury to the effect that they could not use evidence of uncharged acts as evidence of a tendency to commit offences of the type charged, and that the evidence of uncharged acts could not be used as an element in the chain of proof of the offences charged. However, the trial judge did direct the jury that they must consider the evidence in relation to each of the charged acts and make a decision in relation to each as if it were the only one; and he did say (in relation to the generalised evidence of uncharged acts) that they must not reason that because the accused might have done something on some other day, he might have done the specific allegations relied on by the Crown. In the absence of any request for a further direction, I would not find a miscarriage of justice justifying leave under rule 4 on this point.
On the question of directions concerning the two specific uncharged acts, the trial judge directed the jury that they could not use them in support of the five charged acts unless they were satisfied of them beyond reasonable doubt. This was an error, in that this requirement would apply only if the uncharged acts were admitted as tendency evidence. More importantly, this direction did suggest that if the jury were so satisfied, they could use the two uncharged acts in support of the five charges, this in turn suggesting they could use them by way of tendency reasoning.
No objection was taken to this direction and no further direction was sought. In the application of this direction to the evidence of the uncharged incidents given by the complainant herself, in my opinion this could give rise to no miscarriage of justice. There was no reason why the jury would use this to give more credibility to the complainant in relation to the conflict between her evidence and that of the appellant.
In my opinion, the most significant difficulty of the summing up concerns the direction as regards the uncharged act about which there was some evidence given by D and J. The jury were in effect told that they could have regard to the unchallenged evidence of D, and take account of this incident in support of the complainant if satisfied beyond reasonable doubt that it occurred. This can be understood as an invitation to tendency reasoning, with the added vice that the jury could use unchallenged evidence of a witness other than the complainant in support of this reasoning. However, it must be remembered that the appellant’s counsel did not object to the evidence of D and of J, and used this evidence to argue for the improbability of improper conduct when D and J were around, and also adverted to the conflict between their evidence and the evidence of the complainant. In those circumstances, it would have been quite appropriate for the jury to consider, on the question of the respective credibility of the complainant and the appellant, whether they accepted the evidence of D and J that some such incident occurred, or the evidence of the appellant that it did not occur. If the jury preferred the evidence of D and J on this point, this would support the complainant’s case not by way of tendency reasoning but by way of credibility reasoning, on an issue taken up by the appellant at the trial. In my opinion, the failure by the trial judge to draw the jury’s attention to a conflict between the complainant’s evidence suggesting an argument occurring in her bedroom with that of her brothers could not be an appealable error.
Having regard to all these considerations, I would not grant leave under rule 4 in relation to this complaint.
In my opinion, the direction of the trial judge concerning the non cross-examination of D did tend to suggest that, because of this, the appellant’s denial of the incident should not be accepted; and understood in that way, it would be inconsistent with MJW. However, the trial judge had told the jury that they must reject any opinion expressed by him on questions of fact unless it happened to correspond with an opinion they had formed independently; and again, in the absence of any objection to this direction or request for further direction, I would not grant leave under rule 4.
I have given my views on the major objections taken by the appellant individually. Now, considering the cumulative effect of all the objections, I would still not grant leave under rule 4. In my opinion, it was a strong Crown case. The complainant’s evidence did in my opinion have legitimate corroboration from evidence of the sequelae of the poolroom incident (count 4), which were part of the res gestae of that incident. In my opinion, the evidence of the complainant’s brother and mother of what then happened gave strong support to the complainant’s account, and in my opinion, the appellant’s attempted explanations were implausible. In my opinion, this appeal can fairly be considered as an attempt to obtain a result on a basis different from that on which the trial was competently conducted at first instance.
For those reasons, while I would grant leave to appeal to the extent that this was necessary, I would not grant leave under rule 4 to the appellant to rely on any of the points raised.
Character evidence
After conclusion of the hearing in this case, the Court sent a memorandum to the appellant’s counsel and to the Crown raising the question whether, since the appellant had raised good character in a particular respect (no conviction for sexual assault), this meant that sexual misconduct apart from the charged acts was admissible on character, without satisfying the requirements of ss 97, 100 and 101 of the Evidence Act, subject to ss 135 and 137. That question arose from the provisions of s 110 of the Evidence Act, which is as follows:
110 Evidence about character of accused persons
(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2)If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3)If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
Note. The Commonwealth Act includes an additional subsection relating to unsworn statements.
Counsel were asked to provide submissions as to whether this consideration would be relevant in deciding whether the appellant can satisfy the Court that there has been a miscarriage of justice, so as to overcome rule 4.
In the Crown’s submissions, it was put that, since the evidence of good character was relevantly limited to whether the appellant had prior convictions for sexual assault, it was unlikely that evidence of sexual misconduct other than that which has resulted in a conviction would have been admissible to negate good character: R v Zurita [2002] NSWCCA 22 at [19], R v PKS (NSWCCA, 1 October 1998) at pages 8 – 10.
Ms Rigg for the appellant provided detailed submissions, in which she conceded that s 110 was another possible basis of admissibility of evidence of uncharged acts, but submitted:
(1)the evidence in question should not have been admitted on this basis;
(2)the Crown did not put the evidence forward on this basis, which would have required first leave to cross-examine under s 112, and then rebuttal evidence; and
(3)the use to which this evidence could have been put was limited.
Ms Rigg pointed out that in Qualtieri and in R v ATM [2000] NSWCCA 475 there had been evidence at trial of the appellant’s good character, but there was no mention of this on appeal as a possible basis for evidence of uncharged acts or as being relevant to the adequacy of directions to the jury.
Ms Rigg submitted that the brothers’ evidence of the argument following the bedroom incident, and the mother’s evidence of the phone call, would have had insufficient probative value to justify leave to cross-examine the appellant under s 112 (having regard to s 192 of the Evidence Act), or to justify its admission in rebuttal of the appellant’s evidence of good character.
Ms Rigg submitted that, even if the evidence had been admitted on that basis, it would have required directions as to strict limitations on its use (R v Stalder (1981) 3 A Crim R 87 at 96, BRS v R [1997] HCA 47; (1997) 191 CLR 275); that is, only to negate good character and not to provide evidence of guilt. This limitation is still the case under the Evidence Act: R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at [63], R v El-Kheir [2004] NSWCCA 461 at [68] – [93] (although there are dicta suggesting the contrary in Eastman v R (1997) 76 FCR 9 at [57] – [58]).
Having regard to the conclusion I have already reached, it is not necessary for me to determine this question. However, I think it is appropriate for me to express some tentative views on it.
I am inclined to the view that, notwithstanding the Crown’s concession, evidence supporting a tendency in the appellant to commit sexual assaults would have been admissible under s 110, provided leave to cross-examine had first been obtained under s 112. I think this evidence would have been sufficiently related to the particular respect as to which the appellant led evidence of good character. However, I accept there is a real question whether leave to cross-examine would have been granted.
Further, in the absence of challenge by the Crown to what was said in OGD (No 2) and El-Kheir, I would proceed on the basis that evidence admitted under s 110 can only be used to rebut the accused’s evidence of good character, and not otherwise to support the Crown case for the guilt of the accused.
In all these circumstances, I would not think that the possibility of admissibility of uncharged acts as going to the character of the appellant was in this case material to the question whether leave should be granted under rule 4.
Conclusion
For the reasons previously given, I propose the following orders:
(1)To the extent necessary, leave to appeal against conviction granted.
(2)Leave to rely on points not taken below refused, and appeal dismissed.
WHEALY and BUDDIN JJ: We agree with the orders proposed by Hodgson JA and generally with his Honour's reasons. We prefer however to express no opinion about the issue which his Honour addresses [at paras 79-88] concerning the appellant's character.
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AMENDMENTS:

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

LAST UPDATED:
8 September 2010