JWM v R - [2014] NSWCCA 248

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JWM v R [2014] NSWCCA 248
Hearing dates: 29 April 2014
Decision date: 31 October 2014
Before: Hall J at [1];
R A Hulme J at [184];
Davies J at [185]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against conviction - appellant found guilty of four counts of indecent assault on a child under the age of 16 years and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years - complainant made a statement after the offences took place to the effect that she was a virgin - defence counsel intended to use that statement to demonstrate a prior inconsistent statement - whether trial judge erred in refusing to admit the evidence in accordance with s 293 of the Criminal Procedure Act 1986 - whether trial judge erred in not granting leave to the defence to cross-examine the complainant in relation to counselling consultations - whether trial judge erred in failing to warn the jury that the evidence of pretext relied upon by the complainant as a basis for initiating a recorded conversation with the accused could not be used by the jury as tendency evidence - whether the trial judge erred in linking all but one sexual reference in the recorded pretext conversation to context evidence - whether the pretext evidence was open to the jury to be used in an impermissible way, namely, as tendency evidence - whether the verdicts of guilty in respect of Counts 10 and 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances relating to those offences - application of rule 4 of the Criminal Appeal Rules - appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: BG v R [2010] NSWCCA 301
Bin Sulaeman v R [2013] NSWCCA 283
Christian v R [2012] NSWCCA 34
Clark v R [2008] NSWCCA 122
Doyle v R [2014] NSWCCA 4
Edwards v R (1993) 178 CLR 193
GEH v R [2012] NSWCCA 150
Gregory v R (1983) 151 CLR 566
NAR v PPC1 [2013] NSWCCA 25
R v GEH [2012] NSWCCA 150
R v ITA [2003] NSWCCA 174
R v M (1993) 67 A Crim R 549
R v Morgan (1993) 30 NSWLR 543
R v Picken [2007] NSWCCA 319
R v Poniris [2014] NSWCCA 100
R v White (1989) 18 NSWLR 332
Rolfe v R [2007] NSWCCA 155
Spratt v DPP [2010] NSWSC 355
Taylor v R [2009] NSWCCA 180
Toalepai v R [2009] NSWCCA 270
Wong v R [2009] NSWCCA 101
Zoneff v R (2000) 200 CLR 234
Category: Principal judgment
Parties: JWM (Appellant)
Regina (Respondent)
Representation: Counsel:
J Nicholson (Appellant)
S Dowling (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/312038
Decision under appeal

Date of Decision:

2013-03-06 00:00:00

Before:

Ellis DCJ

File Number(s):

2011/312038

Judgment

The appellant, JWM, stood for trial in the District Court of New South Wales before his Honour Judge Ellis and a jury of twelve. On 25 September 2012, following a seven-day trial, the appellant was found guilty of four counts of indecent assault on a child under the age of 16 years (s 61E(1) Crimes Act 1900) and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years (s 66(2) Crimes Act).

On 6 March 2013 the appellant was sentenced to an effective total head sentence of 5 years 8 months with a total effective non-parole period of 2 years 2 months. He is eligible for parole on 4 May 2015.

The appellant seeks to appeal his conviction. There is no application for leave to appeal in respect of the sentences imposed.

The appellant was arraigned upon indictment containing 11 counts of alleged criminal sexual offending - six counts of indecent assault, one of indecency towards the complainant and four counts of having sexual intercourse (one object/vaginal; 3 penile/vaginal). All charges alleged that the complainant (the appellant's step-daughter) was under the age of 16 years. The four sexual intercourse charges stipulated that the complainant had reached at least 10 years of age. The four charges of sexual intercourse also alleged a circumstance of aggravation, namely, that the complainant was under the authority of the appellant at the time of each alleged offence.

The 11 counts on the indictment, to which the appellant entered not guilty pleas, were as follows:

Counts 1-2: Between 1 February 1984 and 13 March 1985 at Korora in the State of New South Wales did assault the complainant and at that time of such assault did commit an act of indecency upon the complainant a person then under the age of 16 years, contrary to s 61E(1) of the Crimes Act 1900.

Counts 3-5: Between 1 February 1984 and 13 March 1985 at Coffs Harbour in the State of New South Wales did assault the complainant and at that time of such assault did commit an act of indecency upon the complainant a person then under the age of 16 years, contrary to s 61E(1) of the Crimes Act 1900.

Count 6: Between 1 February 1984 and 13 March 1985 at Coffs Harbour in the State of New South Wales did commit an act of indecency toward the complainant a person then under the age of 16 years, contrary to s 61E(2) of the Crimes Act 1900.

Count 7: Between 1 February 1984 and 13 March 1985 at Korora in the State of New South Wales did assault the complainant and at that time of such assault did commit an act of indecency upon the complainant a person then under the age of 16 years, contrary to s 61E(1) of the Crimes Act 1900.

Count 8: Between 1 December 1987 and 31 January 1988 at Korora in the State of New South Wales did have sexual intercourse with the complainant, a person then above the age of 10 years and under the age of 16 years, namely 12 or 13 years and at the time under the authority of JWM, contrary to s 66C(2) of the Crimes Act 1900.

Counts 9-10: Between 7 December 1987 and 21 November 1988 at Korora in the State of New South Wales did have sexual intercourse with the complainant, a person then above the age of 10 years and under the age of 16 years, namely 12 or 13 years and at the time under the authority of JWM, contrary to s 66C(2) of the Crimes Act 1900.

Count 11: Between 1 February 1988 and 31 December 1989 at Coffs Harbour in the State of New South Wales did have sexual intercourse with the complainant, a person then above the age of 10 years and under the age of 16 years, namely 13 or 14 years and at the time under the authority of JWM, contrary to s 66C(2) of the Crimes Act 1900.

At trial the appellant was represented by Mr Loomes of counsel.

The trial commenced on 17 September 2012 and concluded on 25 September 2012. The jury returned guilty verdicts in relation to Counts 3, 4, 5, 6, 8, 9, 10, and 11, and not guilty verdicts in relation to Counts 1, 2 and 7.

The appellant was sentenced on 6 March 2013. His Honour imposed an effective sentence of imprisonment for 5 years 8 months, comprising a non-parole period of 2 years 2 months commencing 5 March 2013 and expiring on 4 May 2015, with a balance of term of 3 years 6 months, commencing 5 May 2015 and expiring on 4 November 2018.

As noted above, the appellant appeals against his conviction only. On 18 October 2013, a Notice of Appeal together with Grounds of Appeal were filed.

Grounds of Appeal

The Grounds of Appeal as set out in the Notice of Appeal are in the following terms:

(1) The learned trial judge failed to provide a judgment finding the complainant's statement to KG (circa 1990-1) that she was [then] a virgin fell within subsection (4) of s 293 Criminal Procedure Act 1986 in circumstances where defence counsel was intending to use the complainant's claim of virginity to demonstrate a prior inconsistent statement thereby depriving the appellant of strong inconsistent evidence on the issue of sexual penetration in his favour and of evidence impeaching the complainant's credibility.

(2) (i) His Honour erred in failing to consider whether to grant leave to the defence to cross-examine the complainant in terms provided by s 299D and s 300 Criminal Procedure Act 1986 thereby depriving the appellant of an opportunity of cross-examining the complainant on weakness in her initial complaint.

(ii) His Honour failed to grant leave to cross-examine the complainant in respect of material contained in her statement 15/10/05 (Voir Dire Exhibit 2 paragraph 46) namely "When talking to Dr White I told her that I thought I had been sexually molested as a child. Dr White said, 'Are you sure, or do you think you were?' I was not happy with this, so I never went back to see her". Thereby depriving the appellant of strong inconsistent evidence in his favour and evidence impeaching the complainant's credibility.

(3) (i) His Honour erred in failing to warn the jury in specific terms that the evidence of "pretext" relied upon by the complainant as a basis for initiating conversation with the accused on 23 September 2008 about past complained of sexual assault (Exh C in the trial), namely her concern that the things that had happened to her (involving the accused) would not happen to her children; could not be used by the jury as tendency evidence. Thereby leaving it open for the prosecution and the jury to use the "pretext" as tendency evidence.

(ii) Excluding references to the frankfurt episode, his Honour failed to link all other sexual references covered in the pretext conversation to context evidence and the jury had no reason to regard his directions in respect of context evidence as applying to historical sexual matters referenced in the 'pretext' conversation.

(iii) That evidence originating from Exhibit C, namely "pretext" evidence was open to the jury to be used in an impermissible way, namely as tendency evidence thereby exposing the accused to the impermissible use of evidence thus tainting his trial.

(4) The verdict "of Guilty" in respect of Count 10 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances required to be proved by the Crown and there were being alleged by the Crown as constituting that offence.

(5) The verdict of "Guilty" in respect of Count 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances required to be proved by the Crown and there were being alleged by the Crown as constituting that offence.

On the hearing of the appeal in this Court, Mr J Nicholson SC appeared on behalf of the Appellant. The Court had the benefit of detailed written submissions on behalf of the appellant dated 17 October 2013 in support of the grounds of the appeal. Mr Nicholson developed his written arguments in relation to grounds 1, 2 and 3 in his oral submissions.

The Crown filed a document, "Crown Submissions- Summary of Trial" ("Summary of Trial") on 22 April 2014. The Crown also relied upon written submissions dated 19 April 2014.

Facts

I extract below the facts contained in the Crown's Summary of Trial relating to the counts on which the appellant was found guilty:

"COUNTS 3 & 4 - Indecent Assault, for which the appellant was found guilty.

When the complainant was aged about 8 to 10 years old they moved to...Coffs Harbour where she lived with her mother and the complainant for a short time. She transferred to the [school] and by that time she had taken the surname of the appellant. The Coffs Harbour Creek was nearby. On several occasions she accompanied the appellant to fish for yabbies in a spot in the creek opposite the porpoise pool. Sometimes her mother came but usually it was just her and the appellant. It was like a 'father and daughter thing' that they did together (T9-11).

On this particular occasion the complainant was wearing a blue two piece swimsuit that was joined with a tie at the sides. The appellant knelt down near the sandbank in the water and the complainant sat on his lap facing away from him. The water was up to her middle. He pulled the part of her swimsuit bottom which covered her vagina to the side. He touched her vagina for a while with his hand (Count 3) and then pulled out his penis and manoeuvred it against her vagina (Count 4) and slowly moved her hips. They were in a public area but in a secluded part and the complainant did not see anyone around at the time. The incident happened often but the complainant remembered that instance. The appellant was wearing shorts and a button up shirt and she was wearing her blue crop-top swimsuit. The incident took place during the day and they had walked there from home carrying a bucket with lines and sinkers. She could not recall if any words were spoken (T11-12).

COUNT 5 - Indecent Assault & COUNT 6 - Act of Indecency: for which counts the appellant was found guilty.

While they were still living at...Coffs Harbour the complainant was at home in the lounge-room with the appellant. She would have been about 9 or 10 years old at the time. The appellant went and fetched a mustard colour massager about 20 centimetres long. It had a white square head which vibrated. There was a single level step in the lounge-room near the big copper-coloured glass window. The complainant was lying on the floor with her head on the step. She was not wearing any underwear at the time (T17-19).

He put the massager on my vagina, I spread my legs open and he put the massager on my vagina, it was on a high speed so I said ouch and he turned the speed down a little bit (T19.37) (Count 5).

The complainant had seen the massager before. It was usually kept in the bottom drawer of the appellant's three-drawer bedside table. It was not battery operated and needed to be plugged in. When the appellant was holding the massager against her vagina she was lying down propped up by the step and he was kneeling in front of her. [He] then put the massager on himself. He put it on the tip of his penis (T20-21) (Count 6).

[H]e was putting it on him and then he ejaculated and he pulled out a hanky and it was a blue and white hanky and he put the hanky over the top of his penis and squeezed his penis and then did a chuckle when he was ejaculating, he would chuckle when he would ejaculate (T21.42).

The complainant's mother was not home when this incident occurred. Similar incidents did not happen all the time but were a 'regular occurrence' during the week - 'Yes he would get me to masturbate him, he would masturbate me, he would use the massager on me, he would get me to use the massager on him' (T22.23).

They lived at...Street for about six months and then they moved back to...Korora. In 1985 when the complainant was 10 years old her Aunty [M] and two of her children arrived in Australia and lived with them at [Korora] for three or four months. Aunty [M] brought [two children] with her and a third child ... arrived later. During the time that Aunty [M] and her children lived with them the sexual activity between the appellant and the complainant stopped. When Aunty [M] married [GH] in September 1985 she and the children moved into their own house. The complainant, her mother and the appellant continued to live at [Korora]. Another relative, Aunty [L], also came from the Philippines and stayed with them for a little bit during the time they lived at [Korora] (T23-25).

...

COUNT 8 - Sexual intercourse, person above 10 years and under 16 years, under authority, for which the appellant was found guilty.

The complainant started high school in 1988 at the...School. In 1988 her mother and the appellant started operating the takeaway food shop [at the Service Station]. The complainant would sometimes help out in the morning and the afternoons. She had a bluey grey uniform with her name on it. It looked like a nurses' outfit. It was a takeaway shop and was open early in the morning until late at night. The complainant would work there helping her mother, the appellant or Aunty [M] (T32-33).

Shortly before the complainant started high school in 1988 they were given a list of stationery to purchase. The complainant went and bought some pens, paper and some Clag glue. The bottle of glue had a red top with a little brush on a stick that went in and out of the glue (T33).

They were living at [Korora] at the time and one evening she and the appellant were watching a pornographic movie. For some reason the complainant went to her bedroom and got the glue and pulled the stick from the lid and wiped it with a tissue. She experimented by inserting the end of the red stick, opposite the little brush, in her vagina to see if she could do it. The movie the complainant and the appellant had been watching showed people having sexual intercourse. The complainant wanted to see if she could do it because she wanted to please the appellant by doing what they were doing on the video. She then came out of her bedroom and said to the appellant that she could do that - referring to the people on the video having sex. The appellant said, 'Are you sure?' and the complainant said, 'Yes' (T34-35).

We went to the kitchen and opened the fridge and he opened a packet of frankfurts and he pulled out the frankfurt and we then went to his bedroom with the frankfurt, I laid on the end of the bed the same way as last time near the pillows my bottom on -because I was - I was lying down with my bottom on the end of the bed. He then took the Vaseline from the top of his drawer, he put the Vaseline on the frankfurt and then he put it, inserted the frankfurt in me (Count 8) (T35.10).

This event occurred either at the end of 1987 or early 1988 as the complainant started high school at the end of January 1988. The complainant turned 13 years old on...January 1988. That incident was the only time a frankfurt or an item like that was used in that way (T35).

COUNT 9 - Sexual intercourse, person above 10 years and under 16 years, under authority, for which the appellant was found guilty.

Her parents bought a vacant piece of land...which was at the bottom corner of the street where they lived at...Korora. The vacant piece of land had a few plants and a Macadamia Tree on it (T35-36).

Yes, [the appellant] and I went to the property, there was some sandy clay delivery, there was a big mound of sand clay material, beside that there was a macadamia tree that was in season and ready for harvesting for the macadamia nuts, [the appellant] and I went to [the vacant land] and half filled the bucket of macadamia nuts. We then returned to [Korora] into [the appellant's office which is directly underneath the house kind of in front of the garage. We then opened the macadamia nuts with a vice that - I think it was like a clamp that held things together and we put the macadamia nuts in between it to crack it open. While we were doing that, [the appellant] was behind me and he bent me over so he was behind me and inserted his penis into my vagina and he said, "You have to be quiet, your mum is upstairs," and then when he did ejaculate he would then bring out a hanky out of his pocket, he would ejaculate into the hanky and he would chuckle, that same sound (Count 9) (T36.19).

That was not the first occasion the appellant placed his penis in her vagina. This incident was after the incident with the Clag glue stick and occurred when she was already at high school.

COUNT 10 - Sexual intercourse, person above 10 years and under 16 years, under authority, for which the appellant was found guilty.

The complainant remembered one incident of penile vaginal intercourse with the appellant when her mother came home unexpectedly.

Yes there was one evening when my mother was either at TAFE, most probably at the...Service Station, she wasn't expected home at that time, [the appellant] and I went to their bedroom, I was on the edge of the bed again, he would have sex with me and he would bounce the bed like that beside my hips and then he would pull out and ejaculate in a hanky and do the same chuckle (T37.35).

While the appellant had his penis in her vagina he would put his hands on the edge of the bed and bounce her so that her bottom would go up and down.

Yes I would be lying across the bed with my feet - I can't remember whether it was up or down but he would put his hands beside my hips and he would bounce himself - bounce me for the - he was going so he wasn't moving, I was only moving (T38.3).

The appellant had his penis in her vagina and he was bouncing the bed. The main bedroom was right above the garage and they had a Gemini car that was quite loud - 'I heard the car or we heard the car drive up the driveway, we then stopped in the middle of it, I went and got dressed, I ran to my bedroom and I pretended to be asleep when my mum came home'. As soon as the complainant heard the car she bolted to her bedroom and pretended to be asleep. That was the only time they nearly got caught (Count 10) (T38).

There were other occasions the appellant and the complainant had sexual intercourse but the complainant could not particularise the occasions. One morning in early 1988 she was at school and the teacher was giving a talk about what the classes would be like. They were in the school library and the class was sitting around all bunched up together. The complainant was sitting next to a boy by the name of Matthew...and he made a comment to his friend like, "something stinks" or "something smells". The complainant immediately felt very embarrassed and self-conscious because she had not showered after having vaginal sex with the appellant that morning and she smelled of sex. Her mother used to go to work at the [the Service Station] early in the morning so she and the appellant were alone early in the mornings. She was not able to recall any more particulars about the event (T39-40).

COUNT 11 - Sexual intercourse, person above 10 years and under 16 years, under authority, for which the appellant was found guilty.

The complainant would occasionally work at the [Service Station]. Sometimes it would be in the morning to help prepare for the day and sometimes it would be in the afternoon after school.

Q. Did something ever happen at the [Service Station]?

A. Yes, yes, [the appellant] and I were at the [Service Station], there was a room in the back where my mum could sleep if she needed to, there was a bed there as well, I remember I had my uniform on.

Q. Which uniform?

A. Sorry, my...Service Station uniform, I was on the edge of the bed so the foot of the bed and [the appellant] then proceeded to have sex with me, penile vaginal intercourse (Count 11) (T40.15).

Usually when she had her uniform on it was the weekend because otherwise she would be on her way to school. The uniform was a grey-bluey dress like a nurses' uniform with a zip all the way to the top. She did not take the uniform off to have intercourse with the appellant, it was just pulled up. No-one else was present or working at the time. The complainant was about 13 or 14 years old. She could not recall if any words were spoken when he placed his penis into her vagina (T40-41).

The complainant's mother and the appellant ran the takeaway shop for a couple of years and then her aunty took over the shop. She could not recall when that happened (T41). The complainant was 13 years old in 1988 and 14 years old in 1989. She had sexual intercourse with the appellant during 1988, 1989 and 1990. One night in 1990 she went to the movies with her girlfriend and met a boy called [KG]. From then onwards there was no further sexual contact between her and the appellant (T42).

The complainant left high school at the end of Year 10 and went to the Philippines for a while. When she returned she attended a business college for six months. Afterwards she got a job...at an eye surgery in Coffs Harbour and worked there for six months. At the end of that year she took the first bus out of Coffs Harbour which happened to be going to Sydney. She did not tell anyone about what had happened with the appellant because she was very ashamed of it and she did not want anyone to judge her. She told her husband about it when she was 30 years old (T43)."

It was the Crown's case at trial that the appellant committed the alleged offences between 1 February 1984 and 31 December 1989 during which period the complainant was aged between 9 and 14 years old. The appellant's case was that none of the charged incidents occurred.

Evidence at Trial

Both the appellant and the complainant gave evidence at the trial.

The complainant gave evidence that in February 2005 she attended a self-help program aimed at people wanting to succeed in life. She said that when the lecturer asked if anyone wanted to share something about his or her upbringing and past experiences, she said "I believe I was sexually assaulted, sexually abused as a child". The complainant gave evidence at trial and confirmed that when she said "I believe", she meant "I know": T 49.

Prior to this and her consultations with a psychiatrist, Dr White, the complainant had not made any complaint regarding the appellant. She said this was because she was embarrassed and ashamed: T 49-50. However, she later told her husband: T 50.

The complainant then made a statement to the police in late 2005.

In respect of three alleged occasions of inappropriate behaviour by the complainant after she turned 16 years old, she said in evidence that she could not recall two of those occasions. She was also adamant that no sexual conduct or activity occurred between her and the appellant after she started dating another school student, KG, in July 1990: T 59. She maintained that the acts that were the subject of all her other complaints did in fact occur: T 35-36.

The appellant gave evidence that he had a vasectomy in 1968, and that since then he had suffered difficulties with his sexual function. He was not able to obtain an erection without using medication: T 94; T 144-145. However, in an undated letter which was marked as MFI 13 during the trial, he wrote "Her approach had been of her own making...I had no need for more sexual gratification than I already had with [the complainant's mother]".

The appellant repeatedly denied all the charges against him and said that none of the allegations of sexual impropriety made against him were true: T 102-103.

Ground 1

The Crown observed that ground 1 of the appeal concerns an application to cross-examine the complainant, the application at trial having been made pursuant to s 293(6) of the Criminal Procedure Act 1986. However, on appeal, the appellant relied upon s 293(4) of that Act. The Crown observed in its written submissions at [4] that where an application is made at trial on one basis, and a different basis is advanced on appeal, the applicant (the appellant in the present case) requires leave pursuant to rule 4 of the Criminal Appeal Rules: Bin Sulaeman v R [2013] NSWCCA 283 at [121]-[132].

As to the other grounds of appeal, the Crown observed that they concerned matters that were not the subject of any application at trial. Accordingly the appellant requires leave to argue all grounds.

As earlier noted, Ground 1 is in the following terms:

"The learned trial judge failed to provide a judgment finding the complainant's statement to KG (circa 1990-1) that she was [then] a virgin fell within subsection (4) of s 293 Criminal Procedure Act 1986 in circumstances where defence counsel was intending to use the complainant's claim of virginity to demonstrate a prior inconsistent statement thereby depriving the appellant of strong inconsistent evidence on the issue of sexual penetration in his favour and of evidence impeaching the complainant's credibility."

By notice entitled "Notice of Defence Questions s 293 Criminal Procedure Act" dated 7 September 2012 the appellant sought leave to cross-examine the complainant on a number of matters. These were set out in paragraphs 1 to 4 of the Notice. Paragraph 2 related to specified matters concerning the relationship between the complainant and her high school boyfriend, KG, in about 1990. Specifically, that KG was her first experience of sexual intercourse and that she was a virgin prior to that, as well as the nature of her relationship with KG.

Paragraph 2 of the Notice was in the following terms:

"2. The relationship between [KG] referred to in the last 5 lines of paragraph 36 and associated matters in paragraphs 37 to 41 of the complainant's statement dated 1/12/05. The defence relies on s 293(6) in so far as the absence of the evidence would imply that all of the complainant's sexual experience was obtained at the hands of the accused and/or that her attempt to take her own life was caused by the accused's actions without any other cause. The defence have taken a brief statement from [KG] on the basis of which it is proposed to put to the complainant:

- they were both students; and

- that the relationship with [KG] lasted approximately 10 months; and

- the relationship was in Years 10 and 11 at High School;

- [KG] was told that it was her first sexual intercourse and specifically she told him she was a virgin; and

- their relationship during that period involved frequent acts of consensual intercourse; and

- it is untrue to suggest or imply that the complainant did not enjoy having sexual intercourse with [KG] as she has asserted;

- the intercourse between them culminated in a pregnancy; and

- this pregnancy caused a personal crisis for the complainant leading to a suicide attempt by the complainant;

- and the complainant asked the accused for money to travel to Queensland for a termination;

- it is proposed to call [KG] on the voir dire, and if permissible, on the hearing to depose to these matters."

On the first day of the trial the appellant argued he was entitled to a ruling under s 293(6) of the Criminal Procedure Act permitting cross-examination. Section 293(1), (2), (3), (4), (5) and (6) provides, so far as is relevant:

"(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

...

(5) A witness must not be asked:

(a) to give evidence that is inadmissible under subsection (2) or (3), or

(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6) If the court is satisfied:

(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:

(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified."

Submissions on the voir dire were made on this and other applications on the first day of the trial (17 September 2012).

On this appeal, as noted above, the appellant sought to rely upon the exception to s 293(3) of the Criminal Procedure Act, as contained in s 293(4). It was submitted on behalf of the appellant:

"...the jury was entitled to know of the inconsistency between her statement to [KG] that she was a virgin and her evidence before the jury of numerous instances of sexual penetration. That evidence could have been divorced from the sexual relationship evidence with [KG]." (Appellant's Written Submissions at p 8)

Accordingly, it was also submitted that:

"Questions establishing she had a conversation with [KG] circa 1990 in which she declared to him that she was a virgin and that such a statement was inconsistent with her present evidence should have been permitted. The probative value of such a question both as to the factual issues in the trial, and the credit of the complainant are pungent. Raised in the limited way indicated, such questions do not raise any issue of relationship with [KG]." (at p 8)

Further, the appellant submitted, such evidence could have been capable of being regarded by the jury as evidence relating to an absence of sexual relationship existing at the time of the commission of the offences.

However, the trial judge in the course of a voir dire stated:

"She is not entitled to tell the jury she's a virgin in any event. All that goes to what - to matters that are prohibited, and it's especially appropriate here because it doesn't matter what, if any, was her level of sexual activity outside of any allegation against your client. Because this is not a consensual situation. It's a question of fact here as to whether there was any sexual contact which can be sheeted home to your client...So the only issue is a factual issue about whether your client did the things alleged in that indictment or any of them." (T 10-11, 17 September 2012)

The following exchange also took place between defence counsel and the trial judge:

"LOOMES: Is your Honour tending towards ruling against the word 'virgin', telling [KG] that--

HIS HONOUR: Well it's the only, it's the problematic word because of the general implication. If it's kept specifically to this accused, then it isn't a problem. But as soon as you bring in the generality, you bring in experience..." (T 31:1-7, 17 September 2012)

Later that day defence counsel said "[KG's] gone so that's that and I understand you Honour's ruling, providing I don't use the V word": T 47:32-33, 17 September 2012.

Shortly thereafter the trial judge raised the possible use of this evidence for a non-hearsay purpose. At the conclusion of that day's proceedings, his Honour made a number of formal rulings, including the following:

"I formally rule that no evidence can be led from [KG] in relation to his relationship with the complainant...I'll leave as a reserve question the decision as to whether the conversation regarding her, whether she had had - whether she'd had any sexual intercourse before year 10 for instance/that she was a virgin at that time, I will leave that for further consideration." (T 49, 17 September 2012)

The next morning, 18 September 2012, the trial judge and counsel for both parties again returned to the matters relating to the voir dire on the previous day and the need to mark certain documents as voir dire exhibits. Counsel indicated that they had reached agreement on various outstanding matters. At that time, defence counsel said: "And I think you've made rulings on all the other things though": T 14:18, 18 September 2012. The application to cross-examine the complainant was not renewed.

The appellant submitted on this appeal that the question as to whether defence counsel was entitled to cross-examine the plaintiff on the matters outlined above was reserved. Further, that "it was a matter the defence was entitled to a decision upon, notwithstanding defence counsel's observation referred to above may have contributed to the trial judge's oversight of the question 'reserved'": Appellant's Written Submissions at p 10. The appellant noted that defence counsel thereafter proceeded to conduct the trial as though he was not entitled to raise the matter.

Additionally, it was submitted that the correct decision would have been to rule that the complainant's statement to KG as to her virginity fell within s 293(4) of the Criminal Procedure Act, and that defence counsel should have been allowed to cross-examine the complainant on her claim of virginity to demonstrate a prior inconsistent statement.

The appellant argued that the trial judge's failure to permit cross-examination in accordance with s 293(4):

"...denied the defence an opportunity to confront globally the allegations (via both contextual matters and indicted charges) being made by referring to the complainant's circa-1990-1 'virginity' claim, and to attack the credit of the complainant." (Appellant's Written Submissions at p 10)

In his oral submissions Mr Nicholson submitted that the "event" within the meaning of s 293(4) was "the absence of an event". The following exchange is recorded in the transcript of the appeal hearing in this Court:

"HULME J: It's got to be evidence of events that are part of a connected set of circumstances so are you saying the event is her being a virgin?

NICHOLSON: To the extent that an absence of sexual experience can be an event, it is the state of virginity." (T 8:42-46, 29 April 2014)

The oral submissions for the appellant therefore sought to take issue with the Crown as to what was the "event" (or, as discussed below, the "non-event", being the asserted stated of virginity) for the purposes of the second limb of s 293(4)(a)(ii), a matter discussed under "Consideration" below.

The Crown submitted that the threshold question is whether the complainant's statement disclosed sexual experience or lack thereof, and if it did, whether the prohibition in s 293(3) was enlivened. The statement by the complainant to KG that she was a virgin discloses an assertion of a lack of sexual experience on the part of the complainant: Crown's Written Submissions at [27]. Therefore, it is inadmissible in light of the prohibition contained in sub-section (3). The appellant's submission that the statement of virginity was relevant to the complainant's credibility was said by the Crown, in my view correctly, to have been inconsistent with those provisions: T 24: 8-24, 29 April 2014.

The Crown further observed that the remaining question was whether the complainant's statement to KG occurred at or about the time of the alleged prescribed sexual offences and "formed part of a connected set of circumstances". The Crown submitted that it did not. Rather, the relevant "events" for the purposes of s 293(4)(a) are the charged acts of sexual intercourse on the one hand, and the complainant's statement to KG on the other. Therefore:

"Whilst cross-examination of the complainant on her statement that she was a virgin might go to the credit of the complainant, it was not so connected to the commission of the offences alleged that it bore on the objective likelihood of their commission." (at [28])

Mr Nicholson submitted to the contrary that the events were connected, in the sense that any statement regarding never having sexual intercourse would be connected "all the way through to any time that there is an allegation that he had sexual intercourse with her" (T 7:44-50), to the extent that an absence of sexual experience can be considered an event (T 8:45-46).

Consideration

As the Crown observed, s 293 of the Criminal Procedure Act was introduced to limit the circumstances in which complainants in sexual assault cases have to endure having what might otherwise be personal and sensitive matters being made public knowledge: R v White (1989) 18 NSWLR 332 at 340. Accordingly, unless an exception to s 293 exists, evidence as to the complainant's sexual experience or lack thereof is inadmissible and there is no residual discretion in the trial judge to allow the admission of the evidence: R v M (1993) 67 A Crim R 549; Taylor v R [2009] NSWCCA 180 at [47]; R v GEH [2012] NSWCCA 150 at [60].

In Spratt v DPP [2010] NSWSC 355, the Court found that s 293 operated to render inadmissible a statement by a complainant that she was a virgin. In that case, Hidden J observed:

"Clearly, this material conveys that at the time of the alleged offences she was a virgin and that her sexual experience was limited to that which she described in her third statement. It would be evidence of sexual experience or the lack of it, coming within the terms of s 293 of the Criminal Procedure Act." (at [10])

The exception created by s 293(4) applies where the complainant's sexual experience is so intrinsically involved, both temporally and factually, in the circumstances of the offence that to exclude that evidence would lead to an unfair distortion of the facts. The High Court considered this matter in Gregoryv R (1983) 151 CLR 566 at 571:

"The statement that evidence that the complainant on a charge of rape consented to sexual intercourse with a man other than the accused is not relevant to the question whether she consented to intercourse with the accused, although correct in most cases, is not universally true. Usually, evidence as to the sexual experience of the complainant with other men could, at most, go to her credit, and if she has been cross-examined on the subject her answers must be accepted, in accordance with the general principle that a party may not impeach the credit of his opponent's witness by calling witnesses to contradict him or her on irrelevant matters. In some cases, however, the other acts of consensual intercourse may be so closely connected with the alleged rape, either in time and place, or by other circumstances, that evidence as to those other acts may be relevant to the issues at the trial; in those circumstances the evidence may not go solely to credit but may be probative of the fact that the complainant consented to have intercourse with the accused, or of the fact that the accused believed that the complainant was consenting. If evidence of this kind is relevant to an issue in the case, and not merely to credit, there is no rule of law that excludes it. The submission that there is some special rule of exclusion applicable to evidence of this kind is misconceived; the evidence of other sexual experience is excluded because, and only when, it is logically irrelevant to a fact in issue." (Emphasis added)

The two limbs to s 293(4)(a) are discussed later in this judgment.

The Crown submitted that relevance in this sense had not been demonstrated, by reason of the appellant having to establish in accordance with s 293(4) that the particular "event" (being the complainant's statement to KG) formed part of a set of connected circumstances "in which the sexual offence was committed". Although there had been no conclusive judicial pronouncement on the parameters of the "temporal requirement" under s 293(4), the Crown noted that in previous cases such a requirement had been limited to a matter of hours within the alleged offence occurring: R v Morgan (1993) 30 NSWLR 543; Clark v R [2008] NSWCCA 122.

In BG v R [2010] NSWCCA 301, James J (with whom Hislop and Price JJ agreed) found that events occurring about 18 months after the alleged offence could not properly be regarded as having happened "at or about the time" of the alleged offences:

"It is not possible, in my opinion, to regard matters occurring at any time within a period of a number of years as having occurred "at or about the time" of the alleged offences. Nor could the matters be said to have formed part of a connected set of circumstances in which the alleged offences by the appellant were committed. The only real connection was the involvement of the complainant in all of the matters and in the appellant's alleged offences." (at [82]-[83])

More recently, in Doyle v R [2014] NSWCCA 4 Bathurst CJ (with whom Price and Campbell JJ agreed) held that:

"For the exception to the prohibition in s 293(3) of the Criminal Procedure Act contained in s 293(4)(a) to apply, both limbs of the subsection must be satisfied...it does not seem to me that the sexual activity alleged against Mr Bonica took place at or about the time of the commission of the offences alleged by DL against the appellant.

...

I do not think the fact that the statement could be used in some way to test the credit of DL affects the position. Two alternatives were suggested by the appellant. He suggested that if the statement were true it would suggest that DL was transferring his anger against Mr Bonica to the appellant. Alternatively, if it were false, it could demonstrate that DL had a predilection for making false complaints. Either way the relevant event itself, being the alleged assault by Mr Bonica, did not form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed. Although the complaint against Mr Bonica might go to the credit of DL, it was not so connected to the commission of the offences alleged that it bore on the objective likelihood of their commission: see GEH v R supra at [81]-[82]." (at [235]-[237])

I have noted above Mr Nicholson's submission that cross-examination of the complainant on her statement to KG in which she declared that she was a virgin should have been permitted on the basis that the statement was said to have been inconsistent with her evidence: Appellant's Written Submissions at p 8; T 7-8, 29 April 2014.

For the exception to the prohibition in s 293(3) of the Criminal Procedure Act, contained in s 293(4), to apply, both limbs of that sub-section must be satisfied: see Doyle v R [2014] NSWCCA 4 at [235].

Before discussing the possible application of the latter provisions, I will address the purpose or object Mr Nicholson contended would have been served in cross-examining the complainant on her alleged 1990 statement to KG.

Mr Nicholson, as I understood his oral submissions, contended that the purpose of cross-examining the complainant on her statement was that it would go to the issue of whether the appellant committed the offences involving sexual intercourse with the complainant, they being the subject of counts 8, 9, 10 and 11. In other words, the complainant could be cross-examined to establish that before 1990 she had not previously had sexual intercourse in line with her statement to KG in 1990.

If leave had been granted to cross-examine the complainant on her statement, it would, in my assessment, having regard to her first written statement to police, be reasonable to assume that she would have given the same account as she volunteered in that statement, namely, that although she made the statement in question to KG, she had lied to him, that is to say, that the statement as to her virginity was a lie. If the jury accepted her in saying it was a lie, the evidence would have no bearing upon a fact in issue in the trial. For the jury to have concluded that what she told KG was the truth, the jury would have had to have rejected her evidence in relation to the offences the subject of counts 8, 9, 10 and 11.

However, the critical matter that would determine whether the exception contained in s 293(4) could apply is whether the appellant satisfied the two limbs of s 293(4)(a): first, the temporal element in s 293(4)(a)(i) and, second, the relationship or connection issue in s 293(4)(a)(ii) had been established (the relationship element) (the second limb). As to the first, incorporated within the phrase "at or about the time of the alleged offences", if the relevant "event" is the complainant's statement made in 1990 or 1991, then, on the basis of the caselaw to which I have earlier referred, the temporal element, in my opinion, would not be satisfied. As to the second, if the "event" were as Mr Nicholson argued, the fundamental difficulty facing the appellant's contention is the requirement that the event forms part of a connected set of circumstances in which the alleged prescribed sexual offences were committed.

In relation to the temporal requirement in s 293(4)(a)(i), the Crown referred in its written submissions to decisions of this Court that support an approach that points to the need for a restricted operation to the temporal requirement. The Crown submitted:

"18. There has been no conclusive judicial pronouncement on the parameters of the phrase "at or about the time of the alleged offences" as it is used in s 293(4)(a)(i).

19. Instances where s 293(4)(a)(i) has been considered have generally been limited to cases where the sexual activity has occurred within hours of the alleged offence: see for example R v Morgan (1993) 30 NSWLR 543 (1 hour, evidence admitted), Clark v R [2008] NSWCCA 122 (1 to 2 hours, evidence excluded because it did not satisfy s 293(4)(a)(ii)).

20. In R v Henning the Court noted that evidence that the accused and the complainant had had sexual intercourse about twenty times over a period of nine years leading up to the offences would "clearly" not satisfy the temporal requirements of s 409B(3)(a) (the predecessor to s 293(4)(a)(i)).

21. In R v Rahme [2004] NSWCCA 233 evidence of sexual experience that occurred weeks or possibly months before the offences was held not to satisfy the temporal requirement of s 293(4)(a)(i) by James and Hulme JJ, Sully J dissenting."

The provisions of s 293(4) were closely examined in GEH v R [2012] NSWCCA 150. In that case, the appellant had been convicted of two counts of aggravated sexual intercourse with a child between the ages of 10 and 16 years, namely, 15 years (April and October 1992).

The exclusion by the trial judge of evidence which might have disclosed or implied sexual activity (or lack thereof) on the part of the complainant on another occasion some 8 months later was challenged on appeal.

In relation to the second limb of s 293(4)(a), Basten JA observed:

"11. The second and cumulative requirement of s 293(4) is that the relevant "event", which must be taken to include a non-event, must form part of "a connected set of circumstances in which the alleged prescribed sexual offence was committed" (emphasis added). The focus of the requirement is the circumstances in which the alleged offence was committed. However broadly one identifies that concept, it defies the ordinary meaning of the words to suggest that an assertion to a school friend about another matter months later constituted part of the circumstances of either assault alleged against the accused. In this regard, the difference between eight months and 15 months is of little significance.

12. A number of common characteristics do not render two events which occurred eight months apart to be a connected set of circumstances. On the hypothesis that neither event occurred, the characteristics only obtain significance if it were shown that on the latter occasion she lied, which was not proposed to be done. Nor, accepting that the temporal element involves a degree of imprecision, can the events be described as being at "about" the same time.

13. Although the two limbs of the exception in paragraph (a) are differently worded and are cumulative, it may in some circumstances be helpful to read the temporal element ("at or about the time of") and the relationship element ("form part of a connected set of circumstances") together. Each phrase reflects elements of the other, particularly if the broader temporal element "about the time of" is the critical element. So much was implicit in the submissions for the appellant, which sought to identify certain characteristics (claim to be involved in a sexual relationship with a mature man in loco parentis in her home environment) said to be common to the elements of the alleged offence against the appellant and the inference to be drawn from the disputed assertion with respect to Mr Hastings. Although counsel for the accused was ambivalent as to whether the proffered evidence indicated a tendency to lie about such matters, the evidence could hardly have assisted the accused if that were not the forensic purpose." (emphasis added)

In GEH Basten JA also observed that an event that occurred (or did not occur) several months after the alleged offence could not properly be understood as within the sexual experience of the complainant at the time of either offence: at [14].

The following matters, in my opinion, are relevant in determining the scope and application of the second limb contained in s 293(4)(a):

(1) The legislative purpose behind s 293(3), as earlier discussed.

(2) The fact that the exceptions to s 293(3), including in particular s 293(4), are expressed in restrictive terms. In other words, they are not broadly expressed.

(3) The provisions of s 293(4)(a)(ii) require consideration of:

The full circumstances in which the alleged prescribed sexual offence or offences was/were committed must be identified;

The relevant "events" are those that "... form part of a connected set of circumstances" in which the alleged prescribed sexual offence was committed. Such "events" includes occurrences, and (on the approach of Basten JA in GEH) "non-events";

A "connected" set of circumstances includes a related set of circumstances, that is, that have a relationship or association with other circumstances.

As Basten JA observed in GEH, supra, there must exist a particular association between an "event" (which must be taken to include a non-event) and the specified circumstances in which the alleged prescribed sexual offence(s) was/were committed.

In paragraph [11] of his Honour's judgment in GEH (extracted in paragraph [61] above) it was observed that the focus of the requirement is the circumstance "in which" the alleged offence was committed. Whilst that may refer to a broad concept, in the present case the statement of the complainant to KG cannot, in my opinion, be considered as forming part of "a connected set of circumstances in which ..." the offences were committed.

A "connected" set of circumstances in which the offence was committed does not, in my opinion, include a general statement as made to KG months or years after the offences were committed. The statement was not a "connected" circumstance within s 293(4)(a)(ii). It was no more than a representation made orally to a third person, KG, and additionally was one that was not made "at or about the time of the commission of the alleged prescribed sexual offence".

The exception in s 293(4), as the Crown submitted, is directed at those cases as described by the High Court in Gregory v R (1983) 151 CLR 566 at 571 where the sexual activity or experience (or lack thereof) is so closely connected with the alleged offences in time and in place or other circumstances that evidence of those matters is relevant to the issues at trial.

As earlier noted, no reliance was placed by counsel for the appellant at trial upon the provisions of s 293(4) of the Criminal Procedure Act. Accordingly, no argument was presented as to the construction or application of those provisions and no contention made to the effect that they were engaged in the trial proceedings. The exception contained in s 293(4) was raised for the first time on this appeal, the application at trial having been based upon s 293(6) of the Criminal Procedure Act.

As a different basis was argued on appeal, leave is required under rule 4 of the Criminal Appeal Rules: Bin Sulaeman v R [2013] NSWCCA 283 at [121]-[122].

Rule 4 provides as follows:

"No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

The rule has the effect of imposing a duty on counsel to inform the trial judge of all points that arise from the summing up that could reasonably give rise to an appeal. Unless there is a good reason to the contrary, it will be inferred that decisions by counsel not to raise such matters with the trial judge are taken for sound forensic reasons: R v ITA [2003] NSWCCA 174 at [98]. Accordingly, the rule operates as a substantial obstacle to "armchair appeals": Bin Sulaeman v R [2013] NSWCCA 283 at [122].

In Bin Sulaeman v R, RA Hulme J observed at [139]-[140]:

"A trial judge is entitled to, and counsel are obliged to provide, a proper foundation on which to base a ruling when asked to exercise a discretionary power. Objections to evidence are not at-large contentions concerning admissibility; they are vehicles for the raising of specific issues. This is a related concept to the principle that it is for the parties to define the issues at trial and that respect must be accorded to the decisions of trial counsel as to what evidence is to be the subject of objection, and the basis for any such objection."

In R v Poniris [2014] NSWCCA 100, Macfarlan JA (with whom Adamson and Bellew JJ agreed) considered the application of rule 4 and determined that where an objection to evidence is made by trial counsel on a particular basis, leave must be granted under rule 4 to challenge the admissibility of that evidence on appeal on a different basis.

His Honour observed:

"In the present case, the objection to the four exhibits at trial was based on relevance, while the objection advanced on appeal is based upon s 137, the former having now been conceded (as noted at [29] above). In my view the objection as to relevance cannot suffice to allow objections on any basis to be advanced on appeal without first obtaining leave. To hold otherwise would be contrary to the purpose of r 4 and the discouragement of 'armchair appeals' which that provision seeks to achieve (see Darwiche v R [2011] NSWCCA 62; 209 a Crim R at [169]-[170]; Flanagan v R [2013] NSWCCA 320 at [69]-[72]). It would also undermine basic principles of appellate review and the efficient administration of justice. The decision in Bin Sulaeman, Vickers and Shepherd support this conclusion." (at [55]) (emphasis in original)

Accordingly, leave to rely on an error to which no objection had been taken at trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: R v Picken [2007] NSWCCA 319 at [20]-[21].

In relation to the ground of appeal presently under consideration, the Crown submitted, correctly in my view, that the appellant failed to demonstrate the he lost a real chance of being acquitted and failed to discharge the onus he bears under rule 4, having regard to the following factors:

The complainant was a clear and cogent witness.
The Crown case was supported by listening device evidence being a recorded conversation between the complainant and the appellant.
The "self-serving" document written by the appellant notes of a conversation he had with the complainant - see [121] and supports the Crown case in that it details a sexual relationship between the appellant and the complainant. This document became Exhibit D.
The appellant's evidence concerning the listening device conversation was completely unconvincing.
The assertion that the appellant suffered erectile dysfunction was not supported by medical evidence and was contradicted by his claim in cross-examination (T 144-145) that he had no need for more sexual gratification than he already had with his wife.

Furthermore, the Crown submitted that there may have been a legitimate forensic reason as to why defence counsel did not raise the matters the subject of this appeal during the trial: T 29:17-20. There was no ground of appeal raised in relation to incompetence of counsel: T 4:23-28, 29 April 2014.

I do not consider, for the reasons stated above, that the appellant has established arguable error in relation to Ground 1 and accordingly no issue of a possible miscarriage of justice has been established in relation thereto.

Accordingly, in all the circumstances I am of the opinion that leave under rule 4 should be refused.

I am accordingly of the opinion that Ground 1 should be dismissed.

Ground 2

Ground 2 seeks to raise two separate issues in each of which the error is asserted as a failure by the trial judge in relation to the granting of leave to the defence to cross-examine the complainant upon information divulged in a medical consultation with Dr White. The full terms of Ground 2(i) and (ii) are set out in paragraph [10] above.

Before dealing with each of the matters raised it is desirable to provide the following matters by way of background.

The complainant made a statement to police dated 15 October 2005 in which she referred to the fact that she had received psychiatric counselling from a Dr Yvonne White in 2004 during which she disclosed abuse by the appellant (Exhibit VD2 at [46]). Following the consultation Dr White prepared a statement confirming the information provided by the complainant. In it Dr White referred to having made handwritten notes. Dr White's statement was not tendered but a portion of it was read onto the record: T 36, 17 September 2012. The appellant's solicitors had subpoenaed Dr White's notes but they had not been produced.

On the first day of the trial counsel for the appellant sought production of Dr White's subpoenaed counselling notes, something that had been foreshadowed in a Notice dated 7 September 2012.

After the matter was raised, the trial judge expressed the view that the notes were a "protected confidence" for the purpose of s 296 of the Criminal Procedure Act and they were not compellable pursuant to ss 298 and 299D.

The possibility of counsel for the appellant cross-examining the complainant on the counselling session was only raised during the course of argument by the trial judge and not by counsel for the appellant. The trial judge expressed the view that this would involve the disclosure of a protected confidence and it would require leave: T 42-43, 17 September 2012. At the end of the first hearing day the trial judge deferred consideration of "Dr White's evidence": T 49:40, 17 September 2012. On the following day, counsel for the appellant expressly abandoned the application: T 14:8-14, 18 September 2012.

Part 5 of the Criminal Procedure Act is entitled "Evidence in sexual offence proceedings". Division 2 of that Part includes the provisions found in ss 295-306 in relation to what is termed "Sexual assault communications privilege". These sections establish a regime pursuant to which sexual assault communications privilege are safeguarded. They include provisions requiring the leave of the court in respect of a "protected confidence" which is defined in s 296(1) as meaning "... a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence."

Section 298(1) makes provision that, except with the leave of the court:

"... a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings."

Section 298(2) provides that, except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings. Section 298(3) similarly provides that except with the leave of the court evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence.

In determining whether to grant leave under s 299D of the Act the court is required to be satisfied that the document or evidence has "substantial probative value": s 299D(1)(a). The court is additionally required to determine whether the public interest in preserving confidentiality of the communication is "substantially outweighed by the public interest in admitting" the material: s 299D(1)(c).

Finally, s 300 makes provision for the adducing of evidence with the consent of the confider. It provides that the consent is ineffective unless it is in writing: s 300(2)(a). That section expressly relates to the production or adducing in evidence of the privileged material: s 300(2)(b).

I turn to the terms of Ground 2 of the application for leave to appeal in light of the fact, as earlier stated, that no application was actually made to the trial judge for leave to cross-examine the complainant about her counselling session with Dr White. In addition, on the question of leave, the application for production of Dr White's notes was abandoned by defence counsel on the second day of the trial and no oral application for leave to cross-examine the complainant on that material was made.

The Crown's written submissions addressed the fact of the application for the doctor's notes having been abandoned and the failure by counsel for the appellant to make an application for a ruling on whether leave should be granted to cross-examine the complainant about the counselling session. These matters, it was submitted, plainly meant that rule 4 of the Criminal Appeal Rules was of real significance in the determination of this ground of appeal: Crown Written Submissions at [38]. The Crown further submitted:

"[39] Turning to the question of whether a miscarriage of justice has flowed from the trial the judge's failure to grant leave to an application that wasn't made, the respondent submits that had consideration been given to the requirements of s 299D on such an application, leave would not have been granted."

At the hearing in this Court, Mr Nicholson's attention was drawn to a problem with Ground 2 as formulated. It was expressed in terms of the trial judge failing to consider and grant leave to the defence to cross-examine when no application for such leave had been made: T 11:40-50, 29 April 2014.

Notwithstanding, Mr Nicholson in his oral submissions stated that he did not intend to amend the grounds (that is, Ground 2(i) and (ii)): T 13:41, 29 April 2014.

Before considering the question of the grant of leave required under rule 4 of the Criminal Appeal Rules in relation to Grounds 2(i) and (ii) I set out below the competing submissions relevant to the question as to whether, had an application been made to the trial judge, it would or would not have been granted.

Appellant's Submissions

The appellant submitted that the probative value of the material in Dr White's notes was substantial. The defence case thesis was that the allegations made by the complainant and referred to during the "pretext" conversation related to the events where the complainant allegedly made advances towards the appellant after attaining the age of 16.

The appellant additionally relied upon what was said to have been an ambivalence, or lack of definiteness in terms of the complaint made by the complainant to Dr White, in particular, that she "thought" she had been sexually molested. It was noted the complainant later told a forum that "I believe I was sexually assaulted", before later stating that she was sexually assaulted. Such ambivalence, it was submitted, gave the evidence significant probative value: Appellant's Written Submissions at p 14.

It was additionally argued that by making a police statement which stated the complainant would be prepared to give the evidence contained in that statement in court, she had consented to giving the evidence regarding her complaint to Dr White within the meaning of s 300 of the Criminal Procedure Act, and that this should have been taken into account when determining whether to grant leave to admit a protected confidence: s 299D(2). Furthermore, it was argued that the public interest in allowing the evidence, namely the "unwarranted convictions of the appellant", was not substantially outweighed by the public interest in preserving the confidentiality of the communication: Appellant's Written Submissions at p 14.

The appellant also submitted that "absent evidence of first complaint, supported by the evidence of 'virginity' the jury's acceptance of context evidence was more easily accomplished by the prosecution than should have been the case": Appellant's Written Submissions at p 14. Further:

"The complainant had already revealed the portion of the protected confidence that she had made - and her reaction to the questions raised by Dr White. Her reaction to those remarks is arguably not 'protected' and part of the probative value of the ambivalence sought to be relied upon. With respect his Honour did not give sufficient weight to those factors when giving the indication to defence counsel referred to above." (Appellant's Written Submissions at p 15)

The Crown Submissions

The Crown observed that in the defence notice dated 7 September 2012, which raised the issue concerning Dr White's notes, no reference was made in it to leave being sought to cross-examine the complainant about her counselling session with Dr White: Crown's Written Submissions at [33]. Additionally, that:

"...no application was ever made for leave to cross-examine the complainant about her counselling session with Dr White. The notice was...an application abandoned by defence counsel on the second day of the trial. And no oral application for leave to cross-examine the complainant on this material was made." (at [37])

The Crown also noted that the trial judge expressed the view that Dr White's notes were a protected confidence, and that accordingly, the defence would require leave to cross-examine the complainant on the counselling session. His Honour deferred consideration of Dr White's evidence. The following day, 18 September 2012, it was noted in the Crown's submissions that the defence seemingly abandoned the application:

"LOOMES: Your Honour, before I distract you, could I just tell you that we've - either in your presence or out of it resolved quite a lot of things, for example with the Dr White material, we understand that [the complainant] is maintaining her claim on privilege and our understanding of the legislation or on discussing it with the Crown is that that's pretty much an end to it and given the ruling that was made yesterday about the admissibility of what happened with Dr White that's the end of the matter as far as we're concerned at this stage." (T 14:8-14)

As a result, the Crown submitted that rule 4 applies, as the trial judge was never asked to rule on whether leave should be granted to cross-examine the complainant in respect of her sessions with Dr White.

The Crown argued that the appellant's submission regarding the significant probative value of the evidence by reference to the "ambivalence" submission should be rejected. The complainant was extensively cross-examined regarding her failure to complain earlier, and in respect of whether she "thought" or "believed" she had been molested, she responded forcefully that she "knew" she had been sexually assaulted: T 49:40, 18 September 2012. Accordingly, it was submitted that further cross-examination on the complaint in the terms expressed to Dr White would not have significant probative value. The disclosure to Dr White was consistent with the later complaint and the complainant's evidence at trial: at [42]. Further, the statements to Dr White were very close in time to the virtually identical statements the complainant made at the forum, and in this respect, "it certainly couldn't be said to have substantial probative value, given that there was another very similar piece of evidence before the jury": T 25:36-40, 29 April 2014. Therefore, it was not even open for the trial judge to progress to considering whether the public interest would be outweighed by the admission of the evidence: T 26:2-5.

It was additionally submitted that there was nothing in the disclosure to Dr White that warranted a conclusion that the public interest was substantially outweighed by the admission of the evidence, as required by s 299D(1)(c).

As to the contention that the complainant had consented to the disclosure of the protected confidence (as a result of referring to the consultation in the police statements), the Crown referred to this Court's judgment in NAR v PPC1 [2013] NSWCCA 25 in which it was held that an effective consent in accordance with s 300 must be in writing and it must expressly relate to the production of a document or the adducing of evidence:

"51. The evidentiary basis for the suggestion that the complainant provided her consent is said to be a paragraph in her second statement stating: "I give police permission to access and copy all of my medical records".

52. The question of what obligation would be imposed on the police if they were to receive copies of documents recording protected confidences is a large one. It is neither necessary nor appropriate to determine it on this application. For present purposes, all that need be noted is that this form of "consent" is not one that satisfies s 300(2)(b). Such a consent must expressly relate to material that is privileged under Division 2 of Part 5. In this case the complainant only agreed to disclose her "medical records" which are not necessarily the same as documents privileged under Division 2 of Part 5.

53. Further to satisfy s 300(2) any such consent must expressly relate to the "production of a document or adducing of evidence". This requires, inter alia, the provision of an express written consent to the production of documents at least to, and most probably via, the Court, or the adducing of the documents in evidence. The critical aspect of such a consent is that it is an agreement for both parties to view the material. It is not sufficient that, at the investigative stage, the complainant may have agreed to their production to and copying by only the prosecution or some other entity or organisation such as the police.

54. Further I note that no argument to this effect was raised before the trial judge."

It was additionally noted that Part 5 Div 1 of the Criminal Procedure Act does not include waiver provisions.

Consideration

I accept the Crown submission that had leave been sought, leave would not have been granted. Cross-examination of the complainant as to her use of the word "thought" or other "ambivalence" in her complaint would not have yielded evidence of substantial probative value such as to substantially outweigh the public interest in maintaining the confidentiality of the protected confidence: at [46]. Further, as no application was made to cross-examine the complainant in this respect, rule 4 applies and leave should be refused.

It is clear that the complainant's discussions with Dr White were protected confidences within the meaning of s 296 of the Act, they being communications made in confidence to a psychiatrist by a victim of a sexual offence assault.

The argument advanced on behalf of the appellant that the complainant's statement to police constituted a "consent" for the purposes of s 300 of the Criminal Procedure Act, in my opinion, must fail. An effective consent is one given in accordance with s 300, that is to say, in writing and expressly relating to the production of a document or the adducing of evidence: NAR v PPC 1 [2013] NSWCCA 25 at [52].

I do not consider that ground 2 raises any point of merit. Leave under rule 4 in my opinion should be refused. Accordingly, Ground 2 should be dismissed.

Ground 3

During the trial the Crown was permitted to lead "context" evidence of continuous sexual contact at five locations in circumstances where the complainant was always a willing, and often initiating party.

The Crown was also permitted to introduce into evidence a sound recording taken under police supervision from a listening device of a 40 minute "pretext" conversation between the appellant and the complainant, the complainant then being over 30 years of age. The "pretext" as provided by the complainant to the appellant was that she wanted to talk to him about past sexual contacts with a view to establishing whether it would be safe for her to visit the appellant in the company of her four young children.

The trial judge described the contents of the pretext conversation as follows:

"The conversation shows that the complainant attended uninvited at the address of her stepfather and mother and that she then engaged in a conversation with the accused. The initial part of that conversation deals with completely unrelated matters or family matters and/or general conversation. But at some point during the interview the complainant commenced to make a number of allegations and to speak to the accused about those allegations. The accused from time to time in fact told her that he would not continue if she did not stop and listen and allow him to have his say and at the end he in fact terminated the conversation. There are no threats contained in the conversation from either side. The conversation appeared to be reasonably cordial. It certainly was not abusive and there is nothing to indicate to the contrary and everything to indicate that in fact the conversation was a conversation that this accused engaged in voluntarily." (T 3-4, 19 September 2012)

This ground of appeal relates to his Honour allegedly erring in failing to:

(1) Warn the jury that the conversation could not be used as tendency evidence;

(2) Link all other sexual conduct references covered in the pretext conversation to context evidence, excluding the "frankfurt" episode, and that the jury had no reason to regard his directions in respect of context evidence as applying to historical sexual matters referenced in the conversation; and

(3) The pretext conversation was open to the jury to be used in an impermissible way, namely, as tendency evidence thereby exposing the accused to the impermissible use of evidence and thus tainting his trial.

Parts of this conversation were admitted as Exhibit C on 19 September 2012 after the trial judge found the evidence had significant probative value that substantially outweighed the danger of unfair prejudice: p 4 of his Honour's judgment, 19 September 2012. The trial judge observed that:

"Clearly it would be for the jury to determine whether they accept that the document contains admissions or whether anything said by the defence in terms of any explanation for the things that are recorded as being said by the accused will ultimately be a matter for the jury. It will be for the jury to determine whether there is a direct admission, some of the answers are capable of that. It will be for the jury to determine whether there are implied admissions and the jury will be instructed in relation to the need for caution in drawing inferences and the fact that an inference can only be drawn it if is the only reasonable or rational inference." (p 3)

His Honour then stated that the jury would be given directions in relation to use of the evidence: p 4 of his Honour's judgment, 19 September 2012.

Part of the recording was played to the jury during the trial.

As the complainant's cross-examination had concluded prior to the admission of Exhibit C, the Crown was granted leave on 19 September 2012 to re-open the complainant's examination in chief.

On the morning of 20 September 2012, before the Court resumed hearing the complainant's evidence, the trial judge of his own motion gave further directions to the jury regarding the use of the pretext conversation in the following terms:

"HIS HONOUR: Good morning, ladies and gentlemen. Just before we resume with the evidence of [the complainant], I just wanted to say a couple of things in relation to the conversation that you heard yesterday. Obviously it's a matter for you to make of that conversation what you will in terms of whether you regard it as in any way supporting the Crown case, but if you feel that there is perhaps anything expressed within that which might, for instance, indicate potentially say a certain chauvinistic attitude, then the reality is you shouldn't let any conclusion you reach in regard to that influence the way you decide this case. In other words, it's neither here nor there whether a person who is the accused is chauvinistic or not chauvinistic.

The reality is the question here is whether the Crown has proved the essential elements of each of the charges, not whether the Crown has proved that a person has a particular mindset, for instance. So it is important that you understand that you not act in any prejudicial way. The reality is if someone for instance is a chauvinist they can be guilty or not guilty of an allegation. The fact that they are a chauvinist does not of itself prove that they are guilty of what is alleged against them. Now, I'm not necessarily saying that you would reach such a conclusion in terms of chauvinism. I am just saying that because there is a potential there for that, so far as I could see, I think it's important that you understand from the beginning the way in which you should use that conversation, and the way in which you should not use any assessment as to the accused in that area." (T 2:3-25, 20 September 2012)

In cross-examination the appellant said that he believed the focus of that conversation was re-establishing a relationship between the complainant and her mother. He maintained that all he could recall were the three occasions of inappropriate behaviour between himself and the complainant: T 122, 21 September 2012. The appellant's notes in respect of this conversation were admitted as Exhibit D during the trial.

Following the close of the defence case, defence counsel raised an issue in relation to the potential use of the pretext conversation. Mr Loomes noted that the Crown did not open on the listening device, and proceeded to cite Zoneff v R (2000) 200 CLR 234 and Edwards v R (1993) 178 CLR 193 as authorities for the proposition that special directions must be given if there is a suggestion that lies establish a consciousness of guilt. The trial judge indicated that he "was waiting to see what the Crown does with lies": T 210:8-30, 24 September 2012. The Crown Prosecutor then stated that "...the earlier rationale would be that the Crown is relying on just that it goes to credibility". Further, that the Crown would be:

"...asking the jury to consider the context of the conversations, what was actually said, and ultimately whether they believe that he understood what was being referred to during the course of that conversation, and then ultimately it will be a matter for them whether his reaction during the course of that conversation is consistent with a man who has been told or had certain allegations put to him." (T 211:14-19, 24 September 2012)

In closing addresses, the Crown's submission in respect of the pretext conversation was put as follows:

"You might think that it was being made very plain to [the appellant] that this was what [the complainant] was talking about on that occasion on 23 September 2008.

And the reason that we went through that, painstakingly you might think, is because you will have to determine, that whether having gone through that process and watched the process that [the appellant] went through in cross-examination, did he understand what was being suggested to him plainly by [the complainant] during the course of that listening device conversation. Not only did he understand it but were these matters that would be in his personal knowledge, was she talking about something that only he could've known about. Well given that he was the person she was making the allegations against, well it did concern him.

If you're of the view that he did understand, that he did know what she was talking about, because of the way that she explained why she was there, at his house, why she was concerned about her little girls having dealings with him, on your understanding and your knowledge of human nature, do you think he reacted as someone who was innocent would. It's a matter for you. Look at the responses he makes.

What you're effectively being asked to do is to make an assessment of, it sounds very high noble, of human behaviour. Here you have two people, a man as he would say, being falsely accused of something, by his step-daughter. You as the jury will assess that conversation in that context and it's open to you, given your commonsense, your personal knowledge, having seen and heard the interaction in court, you may think that there has been a failure on his part to proclaim his innocence. You may think he didn't proclaim innocence, that that doesn't make him guilty, I'm not saying that, but it is something you may think, is inconsistent with someone who is innocent. You might think, that sounds like a typical lawyer talking. I will try and make it more simple.

Your worldly experience, given the scenario that you now understand to be the situation, having heard what was said by [the complainant], having heard the responses from the accused, do you believe that he understood what was being put to him. Did he appear to understand what the allegations were. If you think that he did understand those allegations, he did understand the nature of the allegations, was his behaviour or his responses consistent with someone who was protesting his innocence or not.

It's a matter for you as a jury whether you believe those inferences can be drawn. I am not able to suggest one way or the other, it's a matter for you. Look at the conversation, you look at the reaction." (T 9:8-50, 24 September 2012)

The appellant submitted that only one indicted offence was capable of being identified in the course of the pretext conversation, namely, the "frankfurt" incident, in the context of the complainant's "first time" with the appellant. However, it is argued that "there is insufficient evidence in it to identify with certainty that it related to an episode of intercourse", although both parties are agreed there was only ever one allegation against the appellant involving a frankfurt: Appellant's Written Submissions at p 21. The appellant also raised concerns that the recorded conversation did not constitute sworn evidence: p 23.

Accordingly, the appellant submitted that the Crown's address in respect of the appellant's "innocence" was not a legitimate use that could be made of the pretext conversation. Further, it was submitted that it stood contrary to a direction given by the trial judge in relation to context evidence, namely, that context evidence was not to be substituted for evidence of the specific facts required to be found before guilt of an offence would follow: Appellant's Written Submissions at pp 18-19. This also had the effect of reversing the onus of proof: p 21. Accordingly:

"Regardless of how adverse the accused's reaction to the matters raised by the complainant could be described, it is impossible to see, how they could be described as - inconsistent with innocence of Counts, 3 or 4, or 5, or 6, or 8, or 9, or 10, or 11 - each of which had to be considered separately in respect of the essential elements of each. The accused's conduct during the course of the 'pretext' conversation cannot be analogous to a conscientiousness of guilt situation in respect of the various indicted charges as may be frequently the case when prosecution are relying in the deliberate telling of lies - usually in respect of a single episode of criminal conduct." (p 21)

Although there were no admissions as to the charged offences, Mr Nicholson acknowledged during the hearing of the appeal that the conversation "contained admissions of the context material": T 15:1-3, 29 April 2014. Mr Nicholson also conceded that on the context evidence it was open for the jury to conclude that it was speaking of a sexual relationship: T 19:4-7.

However, in the course of summing up the trial judge reminded the jury "there are no confessions in that conversation", but that it could go towards whether the appellant was a witness of truth: T 41.

In the course of summing up the trial judge also gave directions to the jury in relation to the drawing of inferences generally (T 14-15) and lies and credibility (T 16-19). The trial judge noted: "So if you conclude that the accused did lie, has lied, then that is a matter that would go to his credibility or his believability, can you believe him, does he have any credit?": T 17. His Honour further stated:

"It is for you to make up your own mind about whether the accused has told lies and if he has whether he was doing so deliberately. Essentially that is a bit of double talk because the lie needs to be deliberate so it has to be something that is said that is not accurate and it is said in order to deceive, that is what makes it a lie, so it is a deliberate lie. It is for you to decide what significance any suggested lie or lies has in relation to the issues in the case but I should give you this warning, do not follow the process of reasoning that because a person is shown to have told a lie about something that that of itself is evidence that he is guilty. In other words it is not good enough for the Crown to prove that someone lied and therefore say well we proved he lies though so therefore that proves that he is guilty, it does not automatically flow." (Summing Up, at T 18)

The appellant additionally submitted that no attempt was made by the trial judge to identify the pretext conversation as involving context material where it made reference to sexual matters, save and except when the complainant referred to the "frankfurt incident": T 19.

The appellant noted that the pretext relied upon by the complainant for having the recorded conversation with the accused was her apparent belief that the appellant has a potential propensity to sexually misbehave with her children. During the conversation, the complainant said: "And one thing I want is to make sure that the thing that happened with me and you does not happen with my kids": Voir Dire Ex 6 at p 10. Mr Nicholson submitted that this raises an apprehension of propensity (T 15:50) which was subsequently endorsed by the Crown (T 16:12-14). However, at no point in the conversation did the complainant in fact suggest that the appellant ever did anything to her children or any other children.

The pretext was raised in the Crown address in the following terms:

"If you're of the view that he did understand, that he did know what she was taking about, because of the way that she explained why she was there, at his house, why she was concerned about her little girls having dealings with him, on your understanding and your knowledge of human nature, do you think he reacted as someone who was innocent would. It's a matter for you. Look at the responses he makes" (T 9:21-26, 24 September 2012)

"...she's concerned about their safety. That's why she brings these allegations." (T 11:9-13, 24 September 2012)

It was also addressed in his Honour's summing up:

"The reason [the complainant] may then have the conversation is quite a legitimate one, you might think that she might have been concerned about her children and their relationship leaving him [sic] with the father, she had the two young girls and commonsense would tell you that it might have been a motivation for her to want to do something about that in terms of ensuring their safety." (Summing Up, T 42)

Additionally, in the course summing up, his Honour explained the relevance of context evidence (T 33) and gave a direction in respect of such evidence:

"It is important that I explain to you the relevance of the evidence of these other acts. It was admitted or the evidence of those acts were admitted for the purpose of placing the complainant's evidence of the particular acts relied on for these eleven counts, into what the Crown says is a realistic context, so that is the purpose, otherwise you might wonder about the likelihood of apparently isolated acts occurring suddenly and without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, you would be entitled to think it was very odd for them or for there to be such isolated acts between these persons. If you had not heard about the evidence of the other acts, you may have thought that the complainant's evidence was less credible in that every now and again once every six months alleging something was done, it does not have the context of well this is happening regularly and I am just pulling out eleven that I can specify.

So if the other acts of it the particular acts charged are placed into a wider context involving the other acts, that is a context of an ongoing history, then the curious feature of apparently isolated acts would disappear, it is for that reason the law permits a wider sexual history to be provided, it is to avoid artificiality or unreality in the presentation of the evidence. For one or two incidents to be artificially isolated and selected and for a witness to be confined to them, could make it very difficult for her to proceed intelligently with her evidence. To pick out, for example, two incidents separated by lengthy periods could leave you with a very strange and unrealistic account and make it very difficult for her to answer questions, therefore it is open to the Crown to lead evidence of other acts of a sexual nature between the accused and the complainant.

However I must give you some important warnings in relation to the evidence of other acts. (1) you must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the other type charged. (2) you must not substitute the evidence of the other acts for the evidence of the specific offences in the indictment." (Summing Up, at T 33-34) (emphasis added)

The trial judge further noted that:

"You must not reason that because the accused may have done something wrong to the complainant on another or other occasions, that he must have done so on the occasions on the indictment. So the only relevance is a context relevance, it puts it in context." (Summing Up, at T 35)

The appellant further submitted that the evidence as to the pretext of the conversation, namely, concerns for the safety of the complainant's children, is prohibited by s 97 of the Evidence Act 1995. The jury may very reasonably have come to a view that the pretext evidence was unrelated to the context evidence: Appellant's Written Submissions at p 23. Further, that:

"Neither the Crown, nor his Honour posed any question to the complainant as to whether she was sincere in the pretext she was relying upon - because such a question would have raised an inadmissible matter, namely tendency (and opinion), yet both relied upon her claimed pretext as being a finding of fact readily open to the jury to make." (p 24)

Mr Nicholson submitted that the jury was not made aware by the trial judge or either counsel that the transcript of the conversation was not a sworn document, that it was a pretext, and that the pretext did not necessarily need to be a statement of fact: T 16:28-33, 29 April 2014.

However, defence counsel did not draw to his Honour's attention the matters covered under this ground of appeal. Although he objected to the tendering of the pretext conversation, the nature of the pretext and its potential harm were not raised. Accordingly, the Crown submits that rule 4 applies and leave must be sought. This was not disputed by Mr Nicholson: T 13:50, 29 April 2014.

On 20 September 2012 the trial judge gave a context direction:

"Now, there are a couple of things that you can't do with it. The first is that you can't say, "We're satisfied that he did those other acts, therefore we're going to find him guilty of all the counts on the indictment." You have to go to each count and consider the evidence that is available on each count and determine whether that evidence convinces you, for instance, that he's guilty or not.

The fact that you accept other occasions took place only means that it gives it a context. You can't jump from, "I accept that it happened on other occasions, therefore I'm going to convict him without any further consideration of the individual allegations in the indictment," and you think that's probably a matter of logic because you have to be satisfied beyond reasonable doubt as to what she alleges in relation to each of the counts contained in the indictment. The second thing is that you can't use a tendency type argument. You can't say, "Well, look, I accept these other acts, and that shows that he had a tendency to do these things, so therefore, because I find he had a tendency to do these things, I'm going to find him guilty of those other acts"." (T 61:42-T 62:8, 20 September 2012)

Following this, the trial judge asked if counsel sought any further direction. Defence counsel indicated no redirection was sought: T 62:23-25, 20 September 2012. As noted earlier, defence counsel also did not seek any redirection after the summing up.

The Crown submitted that a miscarriage of justice will not be found in circumstances where a warning or direction would have been merely desirable rather than necessary: Crown's Written Submissions at [51].

The Crown also contended that the trial judge did not give a propensity warning because there was no real danger of the jury misusing that evidence as propensity evidence, given the two effective context directions given during the trial and summing up (see [133] and [138] above) which were in conventional and appropriate terms: Crown's Written Submissions at [52]. Further, "it would have been patently clear to [the jury] that none of the counts on the indictment were referred to specifically in the listening device conversation": T 26:26-28, 29 April 2014.

In respect of the pretext conversation, the Crown argued that at no point in the recorded conversation did the complainant suggest the appellant had done anything untoward to her children. Further, the Crown did not seek to use the pretext as evidence that the appellant had a broader tendency to sexually abuse children:

"The Crown submission in closing was that, contrary to his evidence at trial, the applicant well understood what the complainant was talking about (ie his sexual misconduct toward her when she was a child) because the complainant contextualised the conversation by telling him that she didn't want the same thing to happen to her children. This was not an invitation to the jury to use the conversation as evidence that the applicant had a particular tendency, or to substitute that evidence for evidence in support of the indicted counts." (Crown's Written Submissions at [52])

However, Mr Nicholson argued that "it doesn't matter much what the Crown, what purpose it led it for, it's what capacity the evidence had to do damage": T 19: 46-47, 29 April 2014.

However, the Crown submitted "there was no real risk of their using the pretext conversation impermissibly and no further warning was required". Further, given the generality of the allegations of sexual misconduct in the recorded conversation, the general context direction was adequate to alert the jury to the danger of tendency reasoning. It would have been quite clear to the jury that the charged offences were required to be determined on the direct evidence, not on the context material: at [16]. At the hearing of this appeal, the Crown expressed this submission in the following terms:

"...the combination of the obviousness of the contextual quality of the conversation and the context direction that was given means that the jury were adequately directed as required by the circumstances of this particular case and that there was no appreciable or real risk that they would misuse that evidence." (T 27:5-10, 29 April 2014)

Finally, in respect of the trial judge's alleged failure to link references in the pretext conversation to context evidence, the Crown submitted that other than the "frankfurt episode", other references in the pretext conversation to sexual matters were in general terms and were properly available to be used by the jury as evidence of general admission (Rolfe v R [2007] NSWCCA 155 at [67]) and as consistent with the complainant's evidence and so supportive of her credibility. The Crown also noted that unlike in Christian v R [2012] NSWCCA 34, the appellant gave evidence about the conversation, in which he offered an explanation for his responses to the complainant's questions.

Consideration

As noted earlier, defence counsel did not seek a redirection on the matters that are the subject of this ground.

A tendency warning will be required as a matter of law where there is a significant risk that the jury might embark on impermissible tendency reasoning having regard to the evidence placed before it and the arguments of counsel.

In the present case, as noted above, the appellant's contention was that the complainant's conversation with the appellant in which she said that she wanted "to make sure that the thing that happened with me and you does not happen with my kids", could have given rise to impermissible tendency reasoning by the jury, namely, it may have misused that evidence as evidence that the appellant had a broader tendency to sexually abuse children.

Where a tendency warning is merely desirable, rather than necessary, a miscarriage of justice will not be found. In Toalepai v R [2009] NSWCCA 270, Howie J held:

"47 ...I do not believe that the law requires that such a [tendency] warning must be given whenever the evidence of the complainant suggests that sexual misconduct occurred on more occasions than those contained in the charges in the indictment. It may be desirable to give a direction such as that recommended in the Bench Book and set out above, but it is not mandatory in every case, regardless of how vague and general the evidence of other acts might be.

48 Of course if there is anything said in the trial that might suggest a tendency on the part of the accused or the evidence is used in a way that might indicate a tendency, then a warning should be given. But if there is nothing in the evidence or its use by the Crown to indicate the real possibility of tendency reasoning on the part of the jury, then I do not believe that the Court is prevented from applying r 4 where there was a failure to request the warning. I am not convinced that in such a case a failure to give the warning results in a fundamental defect in the trial.

49 In other words, in my opinion each case should be considered on its own facts and an assessment of whether a tendency warning was required as a matter of law in the particular circumstances of the case will depend upon whether there was a significant risk that the jury might have embarked on impermissible tendency reasoning having regard to the evidence placed before it and the arguments of counsel. I accept that one of the considerations in determining whether such a direction is warranted is that the complainant's evidence is unsupported by other evidence but I do not believe that this fact can be decisive."

At no point during the conversation did the complainant suggest that the appellant had done anything untoward to her children. During the course of summing up the trial judge referred to the complainant's concerns about the safety of her children, and that this might be a "legitimate" reason to have the conversation with the appellant (Summing Up at T 42).

It is clear from the transcript that the Crown primarily sought to use the content of the conversation not to raise allegations of untoward actions against the complainant's children, but rather to demonstrate that the appellant knew what the complainant was taking about, and to subsequently use this on the issue of his credit.

In my opinion, there was no real possibility that the jury might have used the recorded conversation as manifesting a tendency of the appellant to sexually abuse children. Further, I am not satisfied that anything indicated the real possibility of tendency reasoning by the jury.

In any event, I consider that the warnings given by the trial judge during the trial and in the course of summing up, extracted at [133] and [138] above, as to the use of the conversation and evidence of other acts, were adequate and appropriate, and therefore do not give rise to a miscarriage of justice. In particular, I note his Honour specifically warned the jury in the course of summing up that "you must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the other type charged" (T 34). Although his Honour did not specifically refer to the pretext conversation in giving those warnings, this does not render the warnings and directions given by his Honour any less adequate or appropriate. Further, I do not accept as valid the appellant's argument that his Honour "appears to endorse as a legitimate argument the use made of tendency by the prosecutor": Appellant's Written Submissions at p 24.

In all the circumstances, and having regard to defence counsel's failure to seek a redirection, I am of the opinion that leave under rule 4 should be refused.

I am also of the opinion that Ground 3 should be dismissed.

Ground 4

In respect of Count 10, the trial judge directed the jury as follows:

"Then in relation to count 10 she recalled it because it was an incident on the bed and that he had a hand on each side of her as she was lying with her legs off the side of the bed, body on the bed and then he was pushing the bed, effectively meaning that she would be moving, her vagina would be moving on his penis and that she recalled that particular occasion by reason of the fact that she was then later on she had not showered, she was then later on with the person Matthew and some others and Matthew made the comment that she stunk or that someone stunk, I do not think he said she stunk but that someone stunk and she said well it was the sex smell still on me, I was embarrassed, I had not had a shower. So that is that she is able to remember that particular incident." (Summing Up, T 39) (emphasis added)

As observed in the written submissions for the appellant, on the Crown case Count 10 related to an offence that occurred at an address in Korora. The circumstances of the offence were described in the Crown's Summary of Trial in the following terms:

"While the complainant's mother was away from the family home the [appellant] and the complainant were in the [appellant's] bedroom. She was lying on her back across the bed with her bottom positioned towards the edge. Her legs were parted and the [appellant] inserted his penis into her vagina and bounced the bed which moved the complainant's body up and down. The complainant's mother arrived home and the complainant ran to her bedroom and pretended to be asleep. [See Crown submissions on sentence - written outline of facts relating to the various counts]."

As Mr Nicholson properly conceded in his written submissions:

"The Crown in her address [T. 24/09/12 p 7/16-33] set out in clear detail its case against the appellant in respect of Count 10. No [complaint] can be made of the detail she gave the jury in respect of that count.

Thus his Honour in his directions has telescoped two incident[s] together - one that occurred and was interrupted when her mother came home at night ... - the complainant fled to her own bedroom and pretended to be asleep; the other occurred at the same address, early in the morning on a school day morning, but while the mother was at the Take Away but there was no interruption reported. After the morning episode of intercourse the complainant left her house and thereafter attended school." (Appellant's Written Submissions at p 26)

The appellant submitted that in his directions, the trial judge in describing the offence, attached as part of the circumstances of that act of sexual intercourse, matters that are related to an uncharged allegation of sexual intercourse that occurred on another occasion and in different circumstances. Moreover, it was contended that error lies in his Honour directing the jury that the complainant was able to recall the events in relation to Count 10 as a result of the reference to an uncharged allegation and context matter (see emphasised words at [156] above): T 21:32-37, 29 April 2014.

The uncharged allegation related to a complaint in relation to sexual intercourse that occurred on the morning of the comment being made about the complainant smelling, that is, a context matter. However, Count 10, on the Crown's case, related to sexual intercourse that occurred one evening, which was interrupted by the complainant's mother (see extracts from Crown's Summary of Trial, above). There was no allegation of interruption in respect of the morning allegation.

The error, in the appellant's submission, is that the trial judge "telescoped" two incidents together. It was contended, "that the jury were invited to consider a scenario of a charge that was a false scenario": T 21:1-6, 29 April 2014.

At the conclusion of the summing up the trial judge invited both counsel to raise any matter: Summing Up, T 49-50. Neither counsel raised any matter related to the misstating of the facts and circumstances of Count 10.

However, Mr Nicholson's submission was that:

"...when a mistake as serious as this occurs if defence counsel hasn't picked it up, there's an obligation on the Crown to assist his Honour to avoid appealable error and if the Crown didn't either nudge defence counsel it would seem or jump up yourself and while I'm not often critical of Crowns it seems to me that that was an oversight that really should not have happened on the part of the Crown." (T 21:25-30, 29 April 2014)

The Crown noted that in the closing address the Crown set out this count accurately: Crown's Written Submissions at [59]. Moreover, the appellant did not make any complaint in respect of the Crown's address to the jury in respect of Count 10: Appellant's Written Submissions at p 26.

Although the Crown conceded that the trial judge's directions included a misstatement of the evidence, it was the Crown's submission that it was not a matter that caused or would have caused a miscarriage of justice: T 27:25-30. The Crown submitted that when one views the trial judge's misstatement against the backdrop of the evidence as a whole, including the proper description of the evidence by the Crown, one could not conclude that there had been a miscarriage of justice: T 29:1-5. The different verdicts returned, it was contended, indicate that the jury were careful to scrutinise the Crown's case with care: T 27:30-31.

The Crown submitted that as no redirection was sought, rule 4 of the Criminal Appeal Rules applies. Mr Nicholson accepted that the rule applied (T 21:24-25) but submitted in that respect, "all of those matters go to fundamental issues and go to the question of losing a real chance": T 3-5, 29 April 2014. In this respect, the appellant relied upon this Court's judgment in Wong v R [2009] NSWCCA 101.

Consideration

In determining whether the trial judge's misdescription of the evidence concerning the factual circumstances of the offence the subject of Ground 4 occasioned a miscarriage of justice, it is necessary to undertake a realistic appraisal of the trial context in which the misdescription occurred.

Firstly, the circumstances of the offence the subject of Count 10 distinguished it from other charged and uncharged acts. The particular distinguishing features of it are relevant to both the reliability of the complainant's evidence and the jury's assessment of her account.

Secondly, the complainant's evidence in relation to Count 10 provided a detailed account of the offence, including in particular the fact that whilst the offence was taking place she heard the family car drive up the driveway, and that she ran to her bedroom as her mother arrived and pretended to be asleep: T 37-38, 18 September 2012.

Thirdly, the Crown Prosecutor correctly summarised the evidence in relation to Count 10 at T 7, 24 September 2012. In describing the relevant events the Crown Prosecutor referred to "the unusual feature of this particular offence" and summarised the particular activities described by the complainant as having occurred along with the fact of her mother coming home earlier than expected and of the complainant running into her bedroom.

Fourthly, I accept the Crown's submission to the effect that the complainant's account in relation to Count 10 was not shaken in cross-examination.

Fifthly, the misdescription of events by the trial judge in relation to Count 10, rather than being seen in a vacuum, is to be evaluated for any significance it could have in terms of a possible miscarriage of justice, in light of the specific evidence the jury heard, the accurate Crown submissions made in relation to it and the fact that the particular verdicts entered by the jury support the conclusion that its members were discerning in analysing the evidence.

I have concluded that the trial judge's misdescription was not sufficient to give rise to or constitute a miscarriage of justice. Leave should not, in my opinion, be granted under rule 4. Ground 4 should be dismissed.

Ground 5

In respect of Count 11, the subject of appeal Ground 5, the trial judge directed the jury as follows:

"Then count 11 was the...Service Station on the bed, I mean there seemed to be some suggestion that there was no bed there, she was cross-examined about that but at the end of the day [the complainant's mother] said there was a bed there and [the complainant's mother] said it was a bed she had slept on so you know be it a storeroom, whatever may have been in there, it seems that there was a bed in there and the incident in relation to count 11 is recalled because it is something that occurred in that storeroom on that bed at the back of the...Service Station." (Summing Up, T 39)

On the previous day the Crown had set out the factual circumstances relied upon in respect of Count 11. Notwithstanding this, the appellant argued that, contrary to the trial judge's direction, there was nothing which distinguished this event from any other sexual intercourse event that may have taken place at the Service Station. There was no evidence that the sexual encounter relied upon by the Crown was the sole episode of sexual intercourse that occurred at the Service Station: Appellant's Written Submissions at p 27. The absence of any description was a pertinent matter in Mr Nicholson's submission: T 21:42-46, 29 April 2014.

However, there was no charge made in relation to any other sexual assault at the Service Station, other than Count 11. The complainant was only directed to that matter and was cross-examined only on that matter: T 22:16-17, 29 April 2014. No other evidence was given by the complainant about other sexual activities at the Service Station, and there was no suggestion in chief or in cross-examination that there were other acts of sexual intercourse that occurred at the Service Station: T 23:17-36, 29 April 2014.

The appellant submitted that the trial judge had an obligation to ensure that the jury understood the facts and circumstances relied upon by the Crown to establish each specific individual charge in a multiple count indictment, particularly in relation to historical sexual assault charges and where evidence arising from context offences and pretext conversations establishes other uncharged sexual activity.

It was argued that in respect of the directions for Count 11 (as with Count 10), the trial judge failed to ensure the requisite understanding among the jury: Appellant's Written Submissions at p 26.

The Crown in response emphasised that there was only one episode of penile-vaginal intercourse alleged to have occurred at the Service Station. Accordingly, it was submitted, the summing up was entirely adequate to remind the jury of the evidence on that count, and leave to appeal should be refused: Crown's Written Submissions at [61]-[63].

Consideration

This ground is based upon a misconception, namely, that the evidence established that sexual intercourse between the complainant and the appellant took place at the Ampol Service Station, in the storeroom on more than one occasion: Appellant's Written Submissions at pp 26-27.

The summing up was consistent with the Crown address on Count 11. There was, on the evidence, only one episode of penile vaginal intercourse at the Ampol Service Station. The summing up was a sufficient summation of the evidence in relation to Count 11. No redirection was sought in relation to it.

I have concluded that leave to rely upon Ground 5 as a ground of appeal should be refused.

Conclusion and Orders

I have concluded that each of the grounds relied upon is without merit. I accordingly propose an order that the appeal be dismissed.

R A HULME J: I agree with Hall J.

DAVIES J: I agree with Hall J.

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Decision last updated: 18 November 2014

Medium Neutral Citation:	JWM v R [2014] NSWCCA 248
Hearing dates:	29 April 2014
Decision date:	31 October 2014
Before:	Hall J at [1]; R A Hulme J at [184]; Davies J at [185]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - appeal against conviction - appellant found guilty of four counts of indecent assault on a child under the age of 16 years and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years - complainant made a statement after the offences took place to the effect that she was a virgin - defence counsel intended to use that statement to demonstrate a prior inconsistent statement - whether trial judge erred in refusing to admit the evidence in accordance with s 293 of the Criminal Procedure Act 1986 - whether trial judge erred in not granting leave to the defence to cross-examine the complainant in relation to counselling consultations - whether trial judge erred in failing to warn the jury that the evidence of pretext relied upon by the complainant as a basis for initiating a recorded conversation with the accused could not be used by the jury as tendency evidence - whether the trial judge erred in linking all but one sexual reference in the recorded pretext conversation to context evidence - whether the pretext evidence was open to the jury to be used in an impermissible way, namely, as tendency evidence - whether the verdicts of guilty in respect of Counts 10 and 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances relating to those offences - application of rule 4 of the Criminal Appeal Rules - appeal dismissed
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	BG v R [2010] NSWCCA 301 Bin Sulaeman v R [2013] NSWCCA 283 Christian v R [2012] NSWCCA 34 Clark v R [2008] NSWCCA 122 Doyle v R [2014] NSWCCA 4 Edwards v R (1993) 178 CLR 193 GEH v R [2012] NSWCCA 150 Gregory v R (1983) 151 CLR 566 NAR v PPC1 [2013] NSWCCA 25 R v GEH [2012] NSWCCA 150 R v ITA [2003] NSWCCA 174 R v M (1993) 67 A Crim R 549 R v Morgan (1993) 30 NSWLR 543 R v Picken [2007] NSWCCA 319 R v Poniris [2014] NSWCCA 100 R v White (1989) 18 NSWLR 332 Rolfe v R [2007] NSWCCA 155 Spratt v DPP [2010] NSWSC 355 Taylor v R [2009] NSWCCA 180 Toalepai v R [2009] NSWCCA 270 Wong v R [2009] NSWCCA 101 Zoneff v R (2000) 200 CLR 234
Category:	Principal judgment
Parties:	JWM (Appellant) Regina (Respondent)
Representation:	Counsel: J Nicholson (Appellant) S Dowling (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/312038
Decision under appeal	Date of Decision: 2013-03-06 00:00:00 Before: Ellis DCJ File Number(s): 2011/312038