JDK v R

[2009] NSWCCA 76

Reported Decision: 194 A Crim R 333

New South Wales

Court of Criminal Appeal

CITATION:	JDK v R R v JDK [2009] NSWCCA 76
HEARING DATE(S):	12 February 2009
JUDGMENT DATE:	27 March 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 60; Adams J at 61
DECISION:	Convictions quashed and new trial ordered.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - sexual assault - direction to jury - relationship evidence or context evidence - convictions quashed
LEGISLATION CITED:	Evidence Act 1995
CATEGORY:	Principal judgment
CASES CITED:	DJV v R [2008] NSWCCA 272 HML v R (2008) HCA 16; (2008) 245 ALR 204 MacKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 213 CLR 606 Norris v R [2007] NSWCCA 235; 176 A Crim R 42 Oldfield v The Queen 163 A Crim R 242 Qualtieri v The Queen 171 A Crim R 463 R v Markuleski (2001) 52 NSWLR 82
PARTIES:	On conviction appeal: JDK (Appellant) The Crown (Respondent) On Crown appeal: JDK (Respondent) The Crown (Appellant)
FILE NUMBER(S):	CCA 2007/13595
COUNSEL:	R P Greenhill SC (Appellant) N Noman (Crown)
SOLICITORS:	W G McNally Jones Staff (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0787
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	12 September 2008

2007/13595

McCLELLAN CJ at CL
JAMES J
ADAMS J

FRIDAY 27 MARCH 2009

R v JDK

JDK v R

Judgment

1 McCLELLAN CJ at CL: This is an application for leave to appeal against the conviction. Leave is required because the appeal is out of time. The Crown does not oppose the application and it is appropriate that leave to appeal should be granted. I will refer to the applicant as the appellant.

2 The appellant was tried on an indictment containing five counts. He was acquitted on the first three counts but convicted on counts four and five. Relevant parts of the indictment are as follows:

1. Count 1 between 1 January 2002 and 31 December 2002 did have sexual intercourse (fellatio) with a child under 10 years; in the alternative

2. Count 2 between 1 January 2002 and 31 December 2002 did have sexual intercourse (fellatio) with a child above 10 years and under 14 years;

3. Count 3 between 1 April 2002 and 31 December 2002 did assault the complainant and at that time did indecently assault her (kissing vagina) in circumstances of aggravation, she then being under 16 years;

4. Count 4 between 1 January 2003 and 31 December 2003 did assault the complainant and at that time did indecently assault her (kiss breasts) in circumstances of aggravation, she then being under 16 years;

5. Count 5 between 1 November 2003 and 31 December 2003 did have sexual intercourse (fellatio) with a child above 10 years and under 14 years.

3 Count 2 was pleaded because the complainant turned 10 years of age within the year of the alleged offence and her age determined the appropriate charge. Otherwise each of the counts allegedly arose from different factual circumstances.

4 The appellant was a very close friend of an older brother of the complainant. He often visited the complainant’s home and stayed overnight. He admitted in evidence at the trial that the complainant regularly sat on his lap. He also admitted to “open mouth kissing” with her. He believed this kissing started when the complainant was 9 years of age. He accepted that kissing occurred almost every time he visited. He said that he made sure it took place when no-one else was around and occurred mainly in the computer room.

5 The appellant lived with his mother. His parents were separated and he regularly stayed with his father on alternate weekends. The appellant was a keen competition tennis player who used to play tennis every Saturday morning, except during school holidays. The complainant said that the appellant stayed over on Friday nights and would go to tennis from her house on a Saturday morning. The appellant disputed this. He said that he never stayed at his friend’s house on a Friday night, except during school holiday periods, as he had to play tennis and was driven to the tennis match locations by either his mother or father from their respective homes. His mother and father both gave evidence confirming the appellant’s account.

6 The Crown alleged in relation to count 1 that on the relevant occasion the appellant asked the complainant to show him her bedroom which she did. It was alleged that when in the room she lay down on a mattress and the appellant kissed her, touched her breasts and asked her to perform oral sex upon him which she did. This is the act of sexual intercourse alleged in count 1.

7 The Crown alleged that this incident occurred when the complainant was in Year 5 at school which was in 2002. The factual circumstances relied upon for count 2 are the same as those in relation to count 1. The only difference being the alleged age of the complainant.

8 In relation to count 3 the Crown alleged that when in the bedroom the appellant touched the complainant’s stomach and hips, then knelt down and began to touch her vagina before kissing it.

9 In relation to count 4 the Crown alleged that while in the computer room in the house the complainant sat on the appellant’s lap and he kissed her neck and touched her breasts. It was alleged that the complainant left the room but returned and the appellant then sucked her chest.

10 In relation to count 5 the Crown alleged that this was the last time that any sexual assault by the appellant upon the complainant took place. The complainant was then in Year 6 at school. It was alleged that at the end of Year 6 the appellant asked the complainant to perform oral sex upon him which she did. They were in the complainant’s brother’s bedroom while he was having a shower. The appellant was then 17 years of age.

11 There are four grounds of appeal. The first ground raises for consideration the acquittal by the jury in relation to counts 1, 2 and 3 but convictions on counts 4 and 5. It was expressed as follows:

Ground 1 – the verdicts of guilty on counts 4 and 5 of the indictment are unreasonable and cannot be supported having regard to the evidence and verdicts of not guilty on counts 1, 2 and 3 of the indictment.

12 The appellant submitted that the relevant verdicts are factually inconsistent with each other and “represent an unacceptable affront to logic and common sense and strongly suggest a compromise of the performance of the jury’s duty calling for the convictions to be quashed and verdicts of acquittal entered in relation to each count” – MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606.

13 The appellant acknowledged that the jury’s verdicts on counts 1 and 2 may be explained by uncertainty as to the time of the year 2002 when the relevant acts occurred. The complainant turned 10 during the year. Accordingly, the jury being uncertain when the act occurred, could not be satisfied beyond reasonable doubt that either of the pleaded offences had been committed.

14 Although this possible explanation of the jury’s verdict was acknowledged the appellant submitted that the jury’s verdicts can be more readily explained by accepting that the jury was not satisfied that the act alleged to have occurred in 2002 occurred at all. Because the complainant was emphatic that the act occurred in April 2002, being in the first school term of that year and that it occurred before her tenth birthday, it was submitted that the jury must have accepted her evidence as being unreliable in relation to the incident.

15 The appellant emphasised the fact that the trial judge did not instruct the jury that they could accept, or reject, the whole, or any part of the complainant’s evidence. Instead his Honour said:

“… if you come to the conclusion he did not have sexual intercourse with her or you have a reasonable doubt about that matter then he will be found not guilty of the first and not guilty of second …. If you consider that he just did have sexual intercourse with her and you are satisfied beyond reasonable doubt that this occurred at a time in 2002 after her tenth birthday then you would find him guilty of the second count.
If you are not sure one way or the other whether this act occurred in 2002 or at some other time you do not know whether it occurred if it occurred at all when she was nine or ten then you should find him not guilty of both charges.”

16 Later his Honour said:

“If you accept her evidence you accept that she is reliable and truthful you are entitled to convict the accused.
If you do not accept her evidence as being reliable and truthful you must acquit him, you must find him not guilty.”

17 Further, the jury was instructed:

“Her evidence is the most critical Crown evidence in the trial. Her evidence is of the utmost importance. I told you before if you decided her evidence is not credible and credible means believable, you do not believe her then you could not convict him. It was put to her the events did not occur. It follows that the accused counsel is suggesting she is not truthful and is not reliable. If you consider she is not reliable or she is not truthful in relation to any of those charges then you should not convict him of anything. There is no real way of distinguishing between the charges when it comes to examining that question. You cannot compromise on this sort of matter. If she is not telling the truth about one thing or you are doubtful about it or you do not think she is a reliable witness how could you convict him of anything if she is not a truthful and reliable witness?
If you have a reasonable doubt about one matter how could you convict in relation to the others? Leaving aside the alternate between one and two because you have to make a decision between count 1 and count 2 but leaving that decision aside which is a special one if you came to the conclusion that nothing happened in 2002 as claimed by her this did not occur, what basis could you come to the conclusion that something happened in later years. If however, you come to the conclusion something did happen and you are satisfied that count 1 or count 2 was proved beyond reasonable doubt then you have to anxiously look at each of the other charges. You do not just decide them on (sic) block so to speak, you must look at all of them. But you must not compromise.”

18 The appellant further submitted that by rejecting the Crown case with respect to count 3 the jury must be understood to have rejected the complainant as a reliable witness. It was submitted that if the jury was not satisfied of her reliability in relation to counts 1, 2 and 3 they could not be reasonably satisfied of her account of the events alleged in counts 4 and 5. Accordingly, it was submitted that the verdicts in relation to counts 4 and 5 were unreasonable.

19 There are some problems with these directions. In cases where multiple counts are pleaded the jury should be directed to consider each count separately. They should also be told that they may accept all or only part of a witness’s evidence, including the evidence of a complainant, where this is appropriate. Juries should also be told that they must be satisfied of each element of each of the pleaded offences beyond reasonable doubt. A lack of reliability in the evidence given as to one count may not indicate that a complainant’s evidence, for that reason, should not be accepted in relation to another count. Although a conclusion that a witness was not telling the truth in relation to one count may inform a view as to that person’s credit, and thus be of assistance in relation to the evidence given on another count, the evidence on the other count must nevertheless be evaluated. It is not the case that because the jury conclude that a witness should not be accepted in relation to one count, an accused person cannot be convicted on any other count relying upon that witness’ evidence: Oldfield v The Queen 163 A Crim R 242 at 245, 248.

20 In MFA Gleeson CJ, Hayne and Callinan JJ said at [34]:

“A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to the want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has shown otherwise to be more reliable about some parts of his or her evidence than about others.”

See also McHugh, Gummow and Kirby JJ at [97]; R v Markuleski (2001) 52 NSWLR 82 at [64]-[65]; [75] and [212]; [221]-[222]; [227]. I discussed these issues in Norris v R [2007] NSWCCA 235; 176 A Crim R 42.

21 In the present case the directions given by the trial judge were firm. The jury were told that if they did not believe the complainants’ evidence or found her to be unreliable in relation to any count they were to acquit the appellant on the other counts. The fact that they did not take this course suggests that there were other explanations for their verdicts.

22 During the trial judge’s summing up the jury sent a note in which they asked the following question:

“Could we please clarify paragraph D on page 2, document entitled ‘Directions of Law’, if we find the event proven and we found there is no clear evidence to indicate she was 9 or 10, must we therefore find [the accused] not guilty.”

23 The judge gave the jury the following directions in response to this note:

“Let me say this to you. The evidence she gave was that she was nine.
The claim is that it happened some time in 2002. If it happened in 2002, if it happened in 2002, she would have been nine if it was before her birthday, 19 May, she would have been ten if it was after. I (sic) you are satisfied that those events happened, and they happened in 2002, then you then have to look at the question are you satisfied of those things beyond reasonable doubt that it did happen in 2002. If it happened in 2002 she must have been nine or must have been ten. You then have to decide and you must be satisfied beyond reasonable doubt. Now if you cannot decide whether she was nine or she was ten, that must mean that you are not satisfied beyond reasonable doubt that this event, if it occurred, occurred in 2002. If you are not satisfied of that, you must find him not guilty. You must be satisfied of each of the elements and one of the elements for the first charge is nine, the one for the second is ten and you must determine on the evidence are you satisfied beyond reasonable doubt she was nine or are you satisfied beyond reasonable doubt she was ten. If you cannot be sure, then he must be found not guilty.”

24 It is apparent from the jury note that they were troubled about the date upon which the alleged events occurred and whether or not they could be satisfied beyond reasonable doubt of the essential elements of either count 1 or 2. The verdict in relation to counts 1 and 2 is readily explained as being the result of the jury’s uncertainty about these matters.

25 With respect to count 3 an examination of the complainant’s evidence suggests that she was uncertain about the critical elements of the alleged events. Evidence was given at the trial by a school friend of the complainant, Miss P. In her evidence she told the jury of allegations which the complainant had made to her of the appellant touching her breasts and vagina, kissing of her mouth and fellatio. However, there was no specific reference in her evidence to kissing of the vagina. The evidence of Miss P supported the sexual activity alleged in relation to counts 4 and 5 but did not provide independent support for the factual allegations in counts 3.

26 In these circumstances I am satisfied that there is also a rational explanation for count 3 which does not depend upon the jury having disbelieved the complainant. It is in my view probable that the jury, having regard to both the lack of clarity in the complainant’s evidence and the lack of any support from Miss P, concluded that they could not be satisfied beyond reasonable doubt of this count and accordingly returned a not guilty verdict.

27 I reject ground one of the appeal.

Ground 2: the learned trial judge misdirected the jury in his summing up in respect of the use which they could make of context evidence of other alleged sexual acts by the applicant whereby a miscarriage of justice occurred.

28 Evidence of other sexual acts alleged committed by the appellant on the complainant was tendered in evidence without objection. This evidence was to the effect that on a number of other occasions during the period of the pleaded counts the appellant sexually assaulted the complainant in a manner similar to that disclosed by the counts on the indictment. There was also a suggestion of digital penetration and penile/vaginal rubbing which was not involved in any of the counts. Although the evidence would be appropriately described as of a general nature rather than relating to specific incidents it was highly prejudicial to the appelllant.

29 At the time the evidence was given the trial judge warned the jury as to the limited use which could be made of it. His Honour said:

“The other thing I have to tell you is that you will have heard already in the evidence – that is the interview being played – the complainant telling the detective of some incidents that occurred between her and the accused which are not the subject of any charges. It may be that other such incidents are referred to. The purpose of the giving of that evidence is merely to show the nature of the relationship between her and the accused. He is not charged with committing numerous other offences and you cannot take into account those allegations and say he’s done them, so he’s done these. That would be quite wrong.
She is giving evidence of what the nature of the relationship between them was, otherwise it might seem very peculiar that there was just a series of separated incidents over a number of years with nothing in between.
So the purpose of this evidence is to show that the relationship between the parties over the years, to some extent, has been a sexual one with sexual acts occurring at various times. It hasn’t been a relationship where just something happened this time and then after a gap something else happened, and then something else happened.
You are required to look at that and decide whether in fact it does show the relationship. You have not heard the accused say anything about it, of course. This is merely done to show from her point of view what she says the relationship was between them.
But you still have to look at the charges, and you’ve got copies of them before you, as separate matters. You are required to decide whether he is guilty or not guilty of those matters, in those separate charges; not in any way are you required to consider, nor can you consider, whether he is guilty of other matters. He’s not charged with any other matter.
I will be saying something about this later in the proceedings. I thought I would just tell you that now, because you may wonder why it would be that he is charged with five matters and one alternate matter, and yet here is evidence about other things happening, why wasn’t he charged with them? Well, don’t speculate about why he wasn’t charged with them. What you’ve got to decide is what he has been charged with, and look at the others as bearing on relationship. But you suspend your judgment about that until you have heard all the evidence.

You might, in the end, decide it doesn’t show the true relationship between them at all, but it is some evidence which goes to what that relationship was.”

30 When summing-up to the jury the trial judge returned to this evidence. He said:

“The other thing, the next thing I am going to tell you you may find hard to follow, it is called relationship evidence. Apart from evidence of the specific acts evidence was allowed to be given and it came about in her first interview with the police, an example of it at least, where she told the police when she was asked to say what had occurred of various acts that are not the subject of any charges here, touching the body with his penis, rubbing his hands up and down her legs, putting his pointer finger insider her vagina, kissing her vagina and doing a whole lot of other tings like that. He has not been charged with putting his finger in her vagina, he has been charged with these specific offences. She was allowed to give all this other evidence of various events that occurred over a period. The effect of her evidence you have got to consider very carefully, of course, both counsel have spoken to you about it but the effect of it is that he had many sexual acts with the complainant not necessarily sexual intercourse but touching her, putting his hands on her, licking her and so on.
You might think, ‘Well if he did all these things why wasn’t he charged with all these things? Why has he only been charged with these ones here?’ Well, the Crown have elected to charge the accused with five counts one of them in the alternative so in effect four separate acts.
The prosecution decide what will be charged. I have nothing to do with it, the courts have nothing to do with charges. However, to give you an understanding of the real relationship between the two young people over a period of time and the context in which these charged acts occurred the Crown is permitted to lead evidence of other acts of a similar type.
If it helps you to understand that the true relationship between them as being a sexual one it may help you to understand more easily how these acts would occur. Apart from the evidence of a complainant there is no other person who specifically speaks of the occurrence of any of these acts apart from the complaint evidence of [EP]. Her mother and her brothers have seen [C] on occasions sitting on the knee of the accused. The accused, himself, agrees that he used to kiss her, give her open mouth kisses but has denied any of the acts charged.
Evidence that she used to sit on his knee, evidence by him that he used to kiss her with an open mouth and this other evidence given by the complainant of the sexual activities occurring is all evidence that goes to what was the true relationship between them? You cannot use it directly to say, ‘Well he did those I’m satisfied he did that had that general sexual relationship so I’m satisfied he had that general sexual relationship therefore he did this.’ You must examine the evidence and see whether there is evidence of each of these offences. You also can’t decide whether he is the sort of person that has a propensity to commit sexual acts, that is, he does them again and again or a tendency to commit them. You can use his evidence only to help you understand the nature, the true nature of the relationship between them.
…
You have got to look at this evidence cautiously and decide whether the evidence of relationship is accepted. When you are looking at that I again say to you that the evidence of her mother and her brothers as to their observations of the close, apparently close relationship between the two of them is something you must consider because that also deals with their relationship. That evidence is not contradicted by the accused, he does not deny that she sat on his knee on occasions and he has said positively that he used to kiss her with an open mouth. That again, is part of a relationship.
You consider all of it, you do not just get a little bit without looking at all of it, you look at all of it when you are considering these things. Human beings are a mixture of all sorts of things and you have got to look at the whole picture.”

31 Relationship or context evidence has been the subject of considerable difficulty. I discussed these problems in Qualtieri v The Queen 171 A Crim R 463. They were discussed in a common law context by the High Court HML v R (2008) HCA 16; (2008) 245 ALR 204. It would seem that neither counsel nor the trial judge had in mind the problems which have previously been discussed when this issue was approached in this trial.

32 In DJV v R [2008] NSWCCA 272 I again considered these issues. That judgment cannot yet be reported by reason of the order of this Court that there be a new trial. However, the consideration given to the issue of “relationship evidence” in a trial for the sexual assault of a young person can be published without difficulty. In DJV I said:

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

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

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

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

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

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

Evidence of the “character, reputation, conduct or tendency” (s 97) of a person may be powerful evidence of that person’s predisposition or propensity to criminal activity, either of a particular kind, and/or, with respect to an identifiable victim. Where the charges are of sexual assault in whatever form, the tendency sought to be proved is appropriately described as the sexual interest of an accused in the complainant. If not tendered as tendency evidence, s 97 and s 101 will not be engaged. However, s 135 and s 137 will be. Notwithstanding the capacity of the trial judge to give the jury clear direction as to how the evidence may be used, or more importantly how it may not be used, the admission of evidence which may tend to prove a relevant tendency of the accused without it being identified as tendency evidence raises questions of considerable difficulty. When evidence is tendered as tendency evidence the protection provided by s 101 is available; but if tendered merely as relationship evidence s 137 provides the discretionary hurdle to its reception. Section 101 operates so that before the evidence can be admitted the probative value of the evidence must substantially outweigh the prejudicial effect. Section 137 is confined to consideration of the probative value as against any unfair prejudice. Evidence which would not pass the test in s 101 may nevertheless be admitted under s 137 notwithstanding its potential prejudicial effect. Protection from that prejudice materialising is then confined to the directions given by the trial judge.
The difficulties faced by a court when considering the admissibility of evidence which demonstrates a tendency but where the Crown disavows the tender for that purpose have been discussed in relation to the Evidence Act on a number of occasions. I considered them in Qualtieri where I said at ([80] and [82]):
‘80 To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be -

Identification of the evidence which the Crown seeks to tender and the purpose of its tender.
If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH [(1997) 42 NSWLR 702 at 709].
If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.
If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.’
I would make one change to this summary. In the third dotpoint it would have been more appropriate to refer to “whether there is an issue in the trial” allowing for the possibility of an issue not yet “raised” emerging at a later point in the trial process. I continued:
‘82 In the present case, the evidence of which complaint is now made was not the subject of objection at the trial. Perhaps it should have been. At the very least counsel and his Honour should have clearly identified the basis of the tender which, so it now seems, was confined to evidence establishing the nature of the relationship. That evidence of the relationship was relevant to the jury is made plain by defence counsel’s criticism of the complainant’s evidence in her address to the jury where counsel emphasised the lack of evidence of the complainant reporting the appellant’s conduct to her mother or any other responsible adult. However, whether evidence of other sexual activity was necessary or relevant to explain this matter or merely the explanation that her lack of complaint was motivated by fear of the consequences need not be determined. I am not entirely comfortable with the proposition that in order to explain a lack of complaint, evidence of other sexual activity will necessarily be relevant or that its probative value going to the issue of lack of complaint, outweighs the obvious prejudicial value. These matters need not be resolved in this case although they may require attention in other matters when evidence of this character is sought to be tendered.’

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

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

‘Pfennig establishes the rule that governs the admission of evidence that will reveal an accused person's commission of discreditable acts other than those that are the subject of the charges being tried. The rule takes as its premise that evidence of other discreditable acts of the accused is ordinarily inadmissible. The foundation for the rule excluding evidence of other discreditable acts of an accused is that, despite judicial instruction to the contrary, there is a risk that the evidence will be used by the jury in ways that give undue weight to the other acts that are proved. That is why the exception to that general rule of exclusion is drawn as narrowly as it is by Pfennig . It is why Pfennig requires that evidence of other acts may be admitted only if it supports the inference that the accused is guilty of the offence charged, and the evidence of those other acts is open to no other, innocent, explanation. But it also follows from the considerations that have just been mentioned that the exclusionary rule is not to be circumvented by admitting the evidence but directing the jury to confine its uses.

There are several points to make about attempts to divide the uses to which evidence of other discreditable acts of an accused may be put. The division suggested may be variously expressed, but its general nature is captured by expressions like "propensity", "disposition", or "tendency" on the one hand, and "context", "explanation", or "intelligibility" on the other. There are at least two reasons not to attempt any such division.

First, it may greatly be doubted that a division of uses expressed in those or similar terms will provide any useful guidance to jurors. The meaning and application of the expressions is anything but readily apparent, even to lawyers.

Secondly, and more fundamentally, the foundation of the general exclusionary rule is that uses of the evidence cannot be segregated in the manner suggested. The very risk to which the general rule of exclusion is directed is the risk that the evidence will be misused . Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig , is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.’

Three of the judges, the Chief Justice, Crennan and Kiefel JJ, in HML accepted that the evidence may be admissible to explain the “relationship”, although their reasons for its admission were not entirely consistent. Gleeson CJ said at [6]:
‘Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. An example is some evidence given in R v Wickham. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was 14 years old. She said that her father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no protest. She behaved as though this was a common occurrence. She said that, in fact, it was a common occurrence. If she had not been permitted to say that, her evidence could have appeared hard to believe. To have put her evidence forward as though she were describing an isolated incident would have been misleading, and, it might be added, unfair. Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In R v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method.’
Later, at [24]-[25] the Chief Justice said, in contrast to the view of Hayne J:

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

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

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

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

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

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

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

…

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

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

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

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

The gloss on that basic criterion, imposing a higher standard of probative value, which arose out of the facts in Hoch and Pfennig , and the purposes for which the evidence was led in each of them, has no application to the purposes for which evidence of uncharged acts was led in these three matters.’
Kiefel J said at ([500]-[502]; [505]):

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

Relationship evidence tendered for this limited purpose does not depend, for relevance, upon a question being raised by the defence. Gaudron J in Gipp accepted that issues may arise as to the complainant's lack of surprise or failure to complain, but considered that they could only be raised by the defence. I must respectfully disagree. Gibbs ACJ in Markby v R did not consider that the admissibility of evidence, relevant otherwise than as to tendency or propensity, depended upon the line taken by the defence at trial, that is, whether the accused had raised or disclaimed a particular defence. The position of the defence may not be clearly exposed on cross-examination of the complainant. It may not be until addresses that reliance is placed upon gaps in the complainant's account. Even if the defence eschewed reliance upon what might be drawn from the absence of particular evidence from the complainant, it would not always be sufficient to settle a concern held by the jury. In any event, if it be accepted that the evidence is relevant to meet questions which may be fairly anticipated to occur to a jury, it cannot be seen as dependent upon the course taken by the defence.

Relationship evidence tendered for the purpose of providing answers to the jury, in the way explained, discloses the other misconduct. It does not, however, involve the use of any tendency of the accused, in the reasoning of the jury, so long as the jury are properly instructed. It will be necessary, where it is relied upon for this limited purpose, for the trial judge to carefully direct the jury as to the use they can make of the evidence. In BRS v R McHugh J acknowledged that a direction may be effective to overcome the potential for prejudice. To achieve that it will be necessary that the jury be told that they must use the evidence only to answer the questions, identified at an early point by the prosecution and accepted as relevant by the trial judge, which are considered likely to occur to them; but that they are not to use it to reason that the accused is likely to have committed the offences. In some cases a trial judge might fairly observe that the reference to other acts, which are likely to be of the same kind as those charged, does not logically prove the prosecution case or enhance the complainant's credit.

…

In Gipp , McHugh and Hayne JJ expressed the view that relationship evidence tendered for the limited purpose did not offend the policy of the law upon which the rule of exclusion is based. I respectfully agree. The direction to the jury prohibits its use as evidence of tendency and it is therefore to be distinguished from other similar fact evidence. In Pfennig it was said in the joint judgment that relationship evidence is a type of propensity evidence. I take their Honours to mean that this is so when it is used as propensity evidence. In that situation it belongs to a special class of circumstantial evidence which may attract the test there propounded. The test applied in Pfennig can have no application to the limited purpose here discussed. It has been assumed that the test did not apply. In Conway v R relationship evidence was considered to fall outside the special rules in Pfennig , because Pfennig dealt with the more difficult and dangerous category of similar fact evidence.’

It is of significance that Kiefel J rejected the proposition that relationship evidence was admissible to bolster the complainant’s credit (see to the contrary Howie J in Qualtieri at [119]) but held that it is admissible to rebut “an inference which might otherwise be drawn.”
Heydon J said at [271]:
‘For a long time, with few exceptions, on a charge against an accused of committing a sexual crime against a particular victim, the courts have admitted evidence of uncharged sexual acts by the accused against that victim. Thus in 1861 in R v Jones evidence of uncharged rapes by a father of his daughter was admitted to establish a "reign of terror" causing the daughter not to resist. This idea is among those which have been employed more recently. Sometimes the evidence has been admitted independently of the principles regulating similar fact evidence. At other times the evidence is said to be admitted in conformity with those principles.’

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

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

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

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

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

33 In the present case no objection was taken to the tender of the evidence. Accordingly, no attention was given to the question of the issue or issues which justified its admission notwithstanding its potential prejudicial effect. Counsel candidly indicated to this Court that he made a tactical decision not to object in the belief that the lack of detail and potential contradictions in the evidence would benefit the appellant. Because a relevant issue had not been identified the trial judge gave generalised directions speaking of “relationship” where no issue requiring explanation by an understanding of the “relationship” had been raised.

34 Although no objection was made to the admission of the evidence, at the trial counsel requested the judge to give a direction in or to the effect of the model direction contained in the Supreme Court Criminal Trial Bench Book at [5-1620] which I referred to with approval in Qualtieri. His Honour did not take that course. Particular complaint is made that his Honour did not give a direction in the following terms:

“You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged, and, therefore, it cannot be used as an element in the chain of proof of the offences charged.”

35 Apart from the oral directions to which I have referred his Honour also provided the jury with written directions dealing with this issue. Those directions included the following:

“(b) You can consider this evidence and use it to assist you in understanding what was the true relationship between the parties on these occasions. The relationship evidence consists of evidence of the complainant that the accused committed acts of the type alleged in the five charges before you many times.
(c) You must consider this evidence very carefully, You can use it to enable you to understand the true nature of the relationship between them, which on the Crown case was a sexual one from an early time, to assist you in determining whether you are satisfied beyond reasonable doubt that the Crown has proved beyond reasonable doubt that the accused committed the offences with which he has been charged.
(d) You cannot use this evidence to reason that it shows in him a propensity or tendency to commit sexual offences.

36 The written direction told the jury that they could not use the evidence as showing a tendency in the appellant to commit sexual offences. However, the jury were not told that they could not use the evidence when considering whether elements of the relevant offences had been proved. To the contrary they were told that the evidence enabled them to understand the “true relationship” which was “a sexual one” and could be used to assist them in determining the particular charges. This is propensity reasoning. When he gave the oral direction his Honour confirmed his written direction in relation to propensity but by confirming that the jury could use the evidence to understand the “true nature of the relationship” between the complainant and the appellant a difficulty arose. When, as the law presently allows, evidence has been admitted going to an issue which can be explained by an understanding of the relationship between relevant persons, but that evidence has not been admitted as evidence of tendency a direction explaining the appropriate use of the evidence should be given. It may be, and this is often the justification for the admission of the evidence, that a failure to complain of an alleged criminal act at the time when it is said to have occurred may be explained by an understanding of the relationship between the complainant and an accused person. However, when it is said that the evidence is admissible so that the jury may understand the “true nature of the relationship”, without defining the issue which is informed by this understanding, the jury are being invited to use the evidence to reason towards the guilt of the appellant. It was these difficulties which I apprehend Hayne J had in mind when he discussed the admissibility of evidence of similar acts in HML.

37 The problem is evident in paragraph (c) of the written directions. His Honour’s direction that the evidence could be used to understand “the true nature of the relationship between them, which on the Crown case was a sexual one from an early time” to assist in determining whether the Crown had proved its case invites the jury to reason that the evidence of other acts was evidence which proved a propensity in the appellant to commit the acts with which he was charged. This was not permissible. The problem stemmed from a failure to identify the issue which justified the admission of the evidence.

38 The situation was exacerbated by further remarks which his Honour made. During the course of his summing up he said:

“You cannot use it directly to say ‘Well he did those I’m satisfied he did that had that general sexual relationship so I’m satisfied he had that general sexual relationship therefore he did this.’ You must examine the evidence and see whether there is evidence of each of these offences.”

39 Although lacking clarity a direction in these terms but for one matter may not have caused a difficulty. However, the use of the word “directly” provides a significant complication. If the jury had understood the direction it must have concluded that, although the evidence could not be used “directly” it could be used “indirectly,” and, thus, the jury would have understood that the evidence could be used, at least to that extent, to reason towards the guilt of the appellant.

40 The bench book contains two further suggested directions of particular significance in a case such as the present. The first matter is a direction in the following terms:

“You must not reason that, because the accused may have done something wrong to the complainant on another occasion, he must have done so on the occasions charged.”

41 In the context of the present case this was an important direction. Depending upon how it was introduced into the directions which his Honour gave it may have operated to remove some of the problems to which I have referred. Although his Honour was asked to give this direction he declined to do so.

42 Further complaint is made by the appellant that his Honour did not give the jury a direction in relation to the time frame in which the “other acts” were alleged to have occurred. Because those acts were reasonably contemporaneous to at least the earlier counts I am satisfied that its omission was not a problem in the present matter.

43 The trial judge’s written directions including the following:

I must tell you to consider carefully that the complainant was aged between 9 and 11 years when the alleged events occurred. She has given evidence of events occurring some years ago. Her evidence because of this in some respects lacks precision. There is also a possibility of distortion of events because of the time gap. You must exercise caution in determining whether this evidence is acceptable.”

44 This direction was not inappropriate. The problem is with the directions which his Honour had already given.

45 To my mind ground 2 of the appeal is made out.

Ground 3: the learned trial judge failed to give any adequate warning to the jury as to the potential unreliability of the complainant’s evidence under s 165 of the Evidence Act 1995 when requested to do so, whereby a miscarriage of justice occurred.

46 At the trial defence counsel asked his Honour to give a warning to the jury pursuant to s 165 of the Evidence Act in the following terms:

“I warn you that the evidence of [the complainant] may be unreliable for the following reasons:
(1) There was delay in the disclosure by her of her allegations; while she apparently disclosed some matters to her friend [EP] in 2002, she did not disclose the matters to any adult until 2006.
(2) Her memory may have deteriorated and may have become contaminated especially in view of the circumstances that the witness was a young person at the time in a case in which emotion, prejudice or suggestion may operate to distort her recollection.
(3) The witness was the subject of three interviews by police in which she was asked a repetition of questions during which she at times became confused. Also the period of about seven months separated the 2 ^nd and 3 ^rd interviews.
(4) The police interviews may have given her opportunity of rehearsal for the giving of her evidence in the trial.
I warn you that, by reason of the above matters, there is a need for caution in determining whether to accept evidence and the weight to be given to it. You should scrutinise her evidence very carefully before you decide to act upon it. In considering her evidence you must bear in mind my warning at all times.”

47 Section 165 of the Evidence Act requires a warning to be given in a variety of defined circumstances. A warning must be given in relation to evidence “that may be unreliable” where a party requests the judge to give it. Section 165(2). In the present case the judge responded to the request of defence counsel in the following terms:

“But it’s going to be – I’ll tell you what I’m going to say. I must tell you to consider carefully. The complainant was aged between nine and eleven years when the alleged events occurred. She has given evidence of events occurring some years ago. Her evidence because of this in some respects lacks precision. There is also a possibility of distortion of events because of the time gap. You must exercise caution in determining whether this evidence is acceptable. That’s as far as I’m prepared to go.”

48 To my mind the warning requested by trial counsel was not necessary. Although there may have been a delay in complaint to an adult the complainant did not delay in her complaint to EP. His Honour reminded the jury of the delay in reporting to adults and indicated, correctly in my opinion, that it was a matter for the jury as to whether they considered this impacted upon the complainant’s reliability. His Honour was also careful to remind the jury that because the evidence of complaint was given by young people about events which happened some time ago there was always the possibility that there could be a distortion or confusion in relation to the events. With respect to the suggestion that his Honour should tell the jury that her evidence may be distorted by emotion, prejudice or suggestion, a warning was not necessary. A submission along those lines could be made by counsel when discussing the credibility or reliability of the young person.

49 To my mind his Honour was correct in rejecting the suggestion that a warning should be given because of multiple interviews conducted by the police. In many cases, including sexual assault cases, the proper conduct of the investigation will require multiple interviews. I am not persuaded that for that reason it could be said that the evidence may be unreliable. I am also satisfied that it was not necessary for his Honour to remind the jury of an opportunity for rehearsal. There was no suggestion that this had occurred and any direction in these terms would have been speculative.

50 I reject ground 3.

Ground 4: The learned trial judge failed to give any adequate warning to the jury as to the potential unreliability of the evidence of EP under s 165 of the Evidence Act 1995 when requested to do so by the accused, whereby a miscarriage of justice occurred.

51 Miss P gave evidence of complaint made to her by the complainant. At the trial defence counsel requested that a direction be given in the following terms:

“I would ask your Honour to tell the jury that in relation to the evidence of complaint to [Miss P] that your Honour say as this evidence relates to statements allegedly made to [Miss P] in the past and outside the courtroom it is referred to in law as hearsay evidence. The witness has merely repeated in court what she says the complainant said to her about the alleged incident. She was not present to observe what actually occurred between the complainant and the accused. Accordingly, she could not give direct evidence of that. You’ll therefore approach her evidence with caution. However, bearing in mind this warning if you accept that complaint was made to the witness then you may take it into consideration and some evidence to (sic) the fact of the assault alleged.”

52 His Honour did not give the direction in the precise terms requested. Instead his Honour said to the jury:

“However, what was said to [Miss P] is hearsay, that is, it is something said to someone who is not involved at all in what occurred. [Miss P] was never present. So this is a statement made by [the complainant] to someone who was not there and [Miss P] was repeating what she had been told. You have always got to look carefully when people report things occurring as opposed to you seeing those things occur.
But you are entitled to take those complaints into account in deciding that the complainant was sexually assaulted as she alleges. There are two bases on which you look at it. One if defending (sic) on the view you take of both [the complainant] and [Miss P] you may take the view that this evidence adds to [the complainant’s] credibility. Secondly, you can take into account into account (sic) in deciding, yes, it helps me to accept that indeed she was sexually assaulted as she said and I come to that conclusion after I examine carefully the fact that [Miss P] was not there, she is not an eye witness, she is merely reporting what is said.”

53 It was submitted by the appellant that the direction which his Honour gave was not an adequate warning. It was submitted that his Honour should have brought home to the mind of the jury that his Honour was “warning them with his authority that they had to approach her evidence with caution and to keep the warning in their minds at all time when considering her evidence.”

54 The debate before the trial judge occurred in circumstances where there had been no challenge to Miss P’s evidence. She was not asked any questions in cross-examination. Accordingly, there was no issue as to whether or not she was a reliable or truthful reporter of what the complainant had told her. The only issue for the jury was whether or not the complainant’s evidence should be accepted.

55 In these circumstances the warning which his Honour gave could not be criticised. Section 165 does not require a trial judge to adopt any particular form of words (ss (4)) and in the circumstances the caution which his Honour gave was adequate to ensure that the jury considered Miss P’s evidence in an appropriate manner.

The proviso

56 As I have indicated I am satisfied that the appellant has made out ground 2. The consequence must be that the jury, in returning a guilty verdict in relation to counts 4 and 5 accepted the complainant’s account of the events. In so doing they must be assumed to have had regard to the evidence of the “relationship” between the appellant and the complainant in the manner directed by the trial judge. Although the appellant’s counsel at the trial did not object to the tender of the evidence the directions which the trial judge gave in relation to it were inappropriate. This Court has an obligation to ensure that if a person is convicted he or she has been tried fairly according to law.

57 Although counsel did not object to its tender the significance of the evidence in this trial cannot be underestimated. Without appropriate directions it had a capacity to distort the jury’s reasoning in an unacceptable manner. Although the evidence of the complainant, supported as it was by the evidence of complaint to Miss P, may justify a conviction the question of whether the complainant’s evidence should be accepted must have been influenced by the other evidence described as evidence of the “relationship.”

58 In my judgment the convictions must be quashed and a new trial ordered.

Sentence

59 In these circumstances it would not be appropriate to consider the application for leave to appeal against the sentence.

60 JAMES J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.