KJR v R

[2007] NSWCCA 165

Reported Decision: 173 A Crim R 226

New South Wales

Court of Criminal Appeal

CITATION:	KJR v REGINA [2007] NSWCCA 165 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 November 2006
JUDGMENT DATE:	29 June 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Rothman J at 13
DECISION:	(1) Conviction appeal dismissed; (2) Leave to appeal against sentence granted; (3) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – plea of not guilty – sexual offences – assault occasioning actual bodily harm – directions given by trial judge – tendency evidence - delay - SENTENCING - special circumstances - whether sentences manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
CASES CITED:	Chahine v R [2006] NSWCCA 179 Crampton v The Queen (2000) 206 CLR 161 DPP v Boardman [1975] AC 421 Doggett v The Queen (2001) 208 CLR 343 Hutchinson v RTA [2000] NSWCA 332 Longman v The Queen (1989) 168 CLR 79 R v BWT (2002) 54 NSWLR 241 R v DRE [2006] NSWCCA 280 R v Ellis (2003) 144 A Crim R 1 R v Fletcher [2005] NSWCCA 338 R v Gardiner [2006] NSWCCA 190 R v Ngatikaura [2006] NSWCCA 161 R v Tripodina (1988) 35 A Crim R 183 R v TWP [2006] NSWCCA 141 R v Williams (1990) 50 A Crim R 213 Weiss v R (2005) 224 CLR 300 Wright v R [2006] NSWCCA 122
PARTIES:	KJR (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/1734
COUNSEL:	A. Francis (Appellant) P. Barrett (Crown)
SOLICITORS:	S.E. O'Connor (LAC) S. Kavanagh (ODPP)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0314
LOWER COURT JUDICIAL OFFICER:	Karpin DCJ
LOWER COURT DATE OF DECISION:	19 October 2004

2006/1734

McCLELLAN CJ at CL
SIMPSON J
ROTHMAN J

29 JUNE 2007

KJR v REGINA

Judgment

NON-PUBLICATION ORDER MADE AND CONTINUED

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: I have read in draft the judgment of Rothman J. I agree that the appeal ought to be dismissed. I shall briefly state my own reasons.

Ground 1: tendency evidence direction

3 The relevant directions have been set out in the judgment of Rothman J. I agree with his Honour that there are some passages in the summing up that are couched in language more commonly associated with s 98 (coincidence) evidence than s 97 (tendency) evidence. An example of this is to be found in the passage first extracted under the heading “Ground 1” where there is a reference to “a striking similarity between two or more events”, giving rise to a conclusion that the offences in question were committed by the same person. Identifying the appellant as the person who committed one or more offences by reference to his having committed another, or others, and parallels in the manner of these being carried out, simply was not an issue in this case. But the language used was not inapt to the issues raised for a jury by tendency evidence. In R v Gardiner [2006] NSWCCA 190 I considered the purpose of s 97 of the Evidence Act 1995. At [124] I wrote:

“124 Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.”

4 Proof of a tendency, whether of conduct or a state of mind, is a stepping stone on the way to proof of an ultimate issue. If it is proven that two or more allegations made by a complainant are of conduct having a “striking similarity”, that “striking similarity” is also available to prove tendency to behave in a particular way. Proof that an accused person had a tendency to behave in a particular way, or to have a particular state of mind, is tendered for the purpose of proving that, on the particular occasion in question, that person behaved in the particular way alleged, or had the particular state of mind alleged. In this respect the direction given in this case was unduly favourable to the appellant. The trial judge said:

“The reason that such evidence is not usually introduced, is that it runs the risk that a jury may feel that if the accused has committed offences of a related kind, it could suggest that he committed the crime or crimes for which he is standing trial. That is [a] dangerous line of reasoning and one upon which you should not embark.”

5 Her Honour went on to say that the evidence was admitted only to show that the appellant had a tendency to behave sexually inappropriately towards his daughters.

6 S 97 imposes restrictions on the circumstances in which tendency evidence may be admitted. However, once the evidence has been admitted, then a jury may use it in its determination of whether the Crown has proved that the accused person committed the crime or crimes charged.

7 I do not think the directions given were erroneous. Nor do I think they could have misled the jury.

Ground 2: delay

8 By this ground the appellant complains of the directions given as to the effect of the delay on the part of the complainant in making her allegations. That such a direction must be given in cases of lengthy delay is established by the decision of the High Court in Longman v The Queen [1989] HCA 60; 168 CLR 79. Longman has been the subject of repeated judicial consideration, both by the High Court and by this court. Many of those decisions are referred to in R v DRE [2006] NSWCCA 280. In DRE Spigelman CJ considered submissions that a “warning” (in terms) is required, and rejected that proposition. I took the view that that appeal ought to be approached on the basis that a direction in accordance with Longman and the cases that followed Longman should be tailored to the factual circumstances of the individual case.

9 Rothman J has set out at length the passages in the summing up where reference was made to the delay. In that part of the summing up in which her Honour referred to the “warning” she added:

“Particularly is that so, where the passage of so many years makes it dangerous to convict the accused on the complainant’s evidence unless you are satisfied that [the complainant] … and [the second complainant] … has given truthful and essentially accurate evidence.”

This was a firm direction as to the caution the jury needed to exercise. Subsequently her Honour reinforced this direction by specific reference to fading memories, the difficulties of testing evidence, and the other matters set out in the judgment of Rothman J.

10 In my opinion these directions were adequate to remind the jury of the problems which exist when there has been a lengthy delay in the making of a complaint.

11 I would reject this ground of appeal.

Application for leave to appeal against sentence

12 For the reasons given by Rothman J I would grant leave to appeal against the sentence but dismiss the appeal.

13 ROTHMAN J: The appellant (KJR) was convicted of five sexual offences and an assault occasioning actual bodily harm, the victim in which was his older daughter, V, who is the complainant. In relation to a seventh offence charged, being an offence allegedly committed against the younger of his two daughters, K, the jury was unable to reach a verdict.

14 The appellant challenges the convictions on the basis of the trial judge’s summing-up and seeks leave to appeal sentence, if the conviction appeal fails.

15 The offences for which the appellant was convicted were:

Count 1 : Carnal Knowledge, in contravention of section 67 of the Crimes Act 1900 (NSW) (since repealed), committed between 1 July 1979 and 29 January 1980
Maximum Penalty: life imprisonment

Count 2 : Indecent Assault, in contravention of section 61E of the Crimes Act , committed between 15 July 1981 and 30 January 1982.
Maximum Penalty: 4 years’ imprisonment

Count 3 : Carnal Knowledge of his daughter being between the ages of 10 and 16 years (inclusive) contrary to section 73 of the Crimes Act , committed between 14 July 1981 and 30 January 1982
Maximum Penalty: 14 years’ imprisonment

Count 4 : Carnal Knowledge of his daughter being between the ages of 10 and 16 years (inclusive) contrary to section 73 of the Crimes Act , committed between 1 August 1982 and 31 December 1983
Maximum Penalty: 14 years’ imprisonment

Count 5 : Carnal Knowledge of his daughter being between the ages of 10 and 16 years (inclusive) contrary to section 73 of the Crimes Act , committed between 1 August 1982 and 31 December 1983
Maximum Penalty: 14 years’ imprisonment

Count 6 : Assault occasioning actual bodily harm, in contravention of section 59 of the Crimes Act , committed between 1 November 1984 and 25 September 1985
Maximum Penalty: 5 years’ imprisonment

16 The victim in each of the above offences was his daughter, V. A further charge was preferred alleging that the appellant committed an act of indecency on his younger daughter, K, between 1 June 1980 and 13 July 1981. The appellant was not convicted of this offence.

17 The appellant was sentenced to an overall sentence term of twelve years’ imprisonment, made up of a nine-year non-parole term and a remainder of three years. The overall sentence comprised the following parts:

Count 1: 7½ years’ non-parole period with a remainder of 2½ years commencing 19 October 2004;
Count 2: fixed term of 3 years’ imprisonment commencing 19 October 2004;
Count 3: 5 years’ non-parole period and 3 years remainder, commencing 19 October 2008;
Count 4: 5 years’ non-parole period with 3 years remainder, also commencing on 19 October 2008;
Count 5: 5 years’ non-parole period with 3 years remainder, also commencing on 19 October 2008;


Count 6: 12 months’ fixed term commencing 19 October 2012.

The appellant’s overall sentence commenced on 19 October 2004 and he is first eligible for parole on 18 October 2013, with the total sentence expiring on 18 October 2016.

18 Because of the relationship between the complainant and the appellant, identification of the appellant would identify the complainant who was a child at the time of the offences. As such publication of the names of the appellant, his wife/partners, and his daughters is prohibited.

Grounds of Appeal

19 As earlier stated KJR appeals the conviction and seeks leave to appeal the sentence. The appellant raises the following grounds:

“1. The trial judge erred by giving inadequate and incorrect directions to the jury in respect of the tendency evidence;
2. The trial judge erred in failing to give a proper warning concerning the delay in complaint;
3. The sentencing judge erred by not considering the issue of special circumstances in respect of the overall sentence;
4. The sentence is manifestly excessive.”

Facts

20 The trial was heard over nine days, including two days of argument on the admissibility of tendency evidence, notice of which was given on 11 February 2004. It is unnecessary to repeat all of the evidence or indeed all of the evidence that was admitted under section 97 of the Evidence Act 1995 (NSW). It is sufficient to recount, in this regard, that evidence was adduced of the violent nature of the relationship between the appellant and his then wife (i.e. the mother of the complainant) and that the relationship involved separations and reconciliations over a period of time. The complainant’s mother and the appellant married in 1969. The complainant, V, was born on 30 January 1970 and her younger sister was born on 21 November 1973.

21 In 1977 the appellant and his wife divorced and the wife moved to Western Australia with the children. They were reconciled in 1979. It was after that reconciliation that the complainant was living at Coogee in New South Wales, the address at which the first offence occurred.

22 The daughter, V, was aged between 9 years and 13 years at the time of the offences.

23 Evidence was adduced by the Crown, through each of the daughters and the wife, relating to the violence in the relationship. Evidence was also adduced from the complainant of uncharged sexual contact. This evidence was admitted and went to the context in which the offences were said to have occurred. The uncharged sexual contact included “spooning”. This involved the appellant requiring the complainant to lie in bed with her back towards his front and the appellant rubbing himself against her back. The evidence also included reference to “goosing”: a practice which involved the grabbing of the victim on the vaginal and bottom area over her clothes.

24 On the issue of tendency evidence, her Honour Judge Karpin, in her judgment delivered on 29 September 2004, determined that the evidence was admissible, but it was, at that stage, unclear whether the evidence was tendency evidence or relationship evidence and such a determination should await the outcome of the giving of the evidence. On appeal, no complaint is made concerning that course. Nor could it be.

25 Likewise, on appeal, there is no complaint made concerning the admission of evidence of violence perpetrated by the appellant against the mother of his two daughters and other women with whom he lived. That evidence was admitted as evidence relevant to the delay in the complaint.

26 Otherwise it is sufficient to summarise the allegations against the appellant by reference to each of the charges preferred.

27 Count 1 was alleged to have occurred between 1 July 1979 and 29 January 1980. The family was living at Coogee and the appellant’s wife visited Canberra for a weekend while the younger daughter stayed with a friend. The complainant and the appellant were in the house by themselves. The complainant was then nine years old. She awoke to find the appellant in bed with her, holding her hands above her head and attempting to kiss her. She could smell alcohol on his breath. He removed her pants and inserted his penis into her vagina. The timing of the incident was recalled because it was shortly after the younger daughter’s sixth birthday. The complainant gave evidence of her father trying to kiss her and found that wet and horrible. She remembered that the penile penetration hurt. Evidence was given that the appellant ejaculated and the victim recalled bleeding having occurred. The appellant told his daughter not to tell her mother or he would kill her.

28 On or about 21 March 1980 the appellant and his wife separated again, following further repeated violence against the wife. The wife took the children to live in a women’s refuge and the children lived with one or other of the parents at varying addresses.

29 Count 2 was said to have occurred between 14 July 1981 and 30 January 1982. The victim was eleven and staying with her father at Balgowlah. The wife was, after reconciliation, at work and the younger sister was at after-school care. Again, the appellant, it was alleged, smelt of alcohol and the complainant gave evidence that she was, again, very frightened. The appellant is alleged to have said to the complainant: “Don’t forget I can kill you”.

30 There was evidence about the relationship between the complainant and her father including the refusal to accept presents from him. The appellant had a couple of girlfriends who had lived with him against each of whom, according to the evidence, he perpetrated significant violence. The 2nd Count occurred at a time when the appellant was not in a relationship with one or other of his women friends. The complainant remembered it being hot and she was in bed with her underpants on. She would hear the appellant coming home from work. She would lay there and pretend to be asleep. He would pick her up and carry her into his bedroom. She would hear him get undressed and get into the bed naked. He would pull her into him so that her back was against his chest and stomach. He would pull her legs into his and put his legs over hers so that she was right up against his body. She could feel his erection between his legs. The first time she recalled this she felt him pushing against her between her legs and moving backwards and forwards and those are the facts that gave rise to Count 2 – indecent assault. The appellant ejaculated.

31 On the second occasion that that kind of event occurred, the same events happened save that there was penile penetration of her vagina. Those facts gave rise to Count 3.

32 Evidence was also given of other sexual conduct, usually associated with alcohol.

33 The 4th Count occurred, again associated with the appellant’s consumption of alcohol, and occurred when they were staying at Miranda Hotel. After trying to kiss her, the appellant pulled the complainant’s pants off and put his fingers in her vagina. He unzipped his pants, penetrated her vagina with his penis and ejaculated.

34 Count 5 was similar in detail to Count 3. There was penile penetration of the vagina and ejaculation in circumstances where they were staying at the hotel in Miranda and “spooning” occurred.

35 Count 6 (the assault occasioning actual bodily harm) occurred when the complainant visited the appellant and his new wife at Oak Flats. There was an altercation during which the appellant grabbed the complainant around the throat until she became unconscious.

36 It is unnecessary to detail the allegations relating to Count 7, which was not proven against the appellant.

37 The appellant did not give evidence but relied upon the denials he had made during the record of interview. Independent evidence was adduced from one of the persons with whom the appellant had a relationship. She gave evidence that, from her observations, the appellant and his daughters had a good relationship. She also gave evidence relating the time that she could recall that the children stayed with them and that she did not recall either child staying for any length of time on any other occasion. During this relationship the appellant was living at Balgowlah, at which address it was said the conduct, which was alleged in Counts 2 and 3, occurred.

Ground 1: Inadequate and Incorrect Directions Relating to Tendency Evidence

38 Ms Francis, Counsel for the Appellant, at paragraph 5.3 and 5.4 of her Submissions, extracted the passages of her Honour’s summing up to which this ground relates. That extract is in the following terms:

“Part of the Crown case however, is that the accused harboured sexual feelings for his daughters that were demonstrated by his inappropriate conduct towards them. Both [V] and [K] told you of his habit of ‘goosing’. They describe that as pushing his hand between their legs with the fingers going into their vaginal and anal areas. They also said that he grabbed their breasts and I think pinched their nipples and made comments about their development that they found embarrassing, such as referring to their breasts as poached eggs.
Those allegations if you accept them as being truthful accounts of what the accused did, themselves actually constitute a form of sexual assault but he has not been charged with any offence in relation to those. How you may use that evidence is thus: If you accept that [V] and [K] told you the truth about their father’s behaviour in this regard, you can only use that evidence in the limited way because it is usually not permissible for the Crown to lead evidence of other offences committed by the accused and with which he has not been charged. The reason that such evidence is not usually introduced, is that it runs the risk that a jury may feel that if the accused has committed offences of a related kind, it could suggest that he committed the crime or crimes for which he is standing trial. That is [a] dangerous line of reasoning and one upon which you should not embark. The evidence is admitted on this limited basis. If you are satisfied beyond a reasonable doubt that the accused was in the habit of ‘goosing’ to use the term used by the girls, his daughters, as described, and on one occasion grabbing their breasts as they have described, you may use that evidence to show that he has a habit or tendency to behave sexually inappropriately towards his daughters.

…
At some stage I mentioned to you the issue of tendency evidence, and I just want to deal with that now. Sometimes in a trial, there is evidence which discloses a striking similarity between two or more events, or two or more charges. It is possible in these circumstances that the jury may be satisfied beyond a reasonable doubt that the person who committed one offence, must have committed the other offence or offences but that can only happen where the manner in which the crime was carried out on each occasion, is so strikingly similar and obviously recognisable, that the jury could readily conclude that the accused committed all of the offences carried out in that particular way.
In this trial the Crown relies upon the evidence of [V] concerning the habit of the accused, she says, to place her with his back against her stomach, she referred to it as a spooning position, curled up and that thereafter, when he had her in that position, would commit sexual assaults upon her. You are aware that she referred to occasions some of which constitute some of the charges in the indictment and others are occasions in which she says, this happened but he is not charged with those. They are uncharged matters. Provided you are satisfied beyond a reasonable doubt in respect of the first count in which that allegation was made, that this was the manner in which she was placed by the accused. That was the method he adopted. You could use that finding to assist you to conclude that the accused must have committed the other offences in which similar practice was adopted because it shows a tendency on his part to carry out sexual assaults in a particular fashion. In a sense members of the jury, it is a fairly circuitous argument, because of course, it brings you back to the issue of being satisfied beyond a reasonable doubt on the evidence of [V] anyway. But it is [a] matter where, as I say, if you found on the first occasion that you have to consider that particular spooning position, that you are satisfied beyond reasonable doubt, that the offence occurred, you may use that as tendency evidence in considering other matters dealing with exactly the same method as it were. Not in relation to matters which did not involve that same method.
The other evidence which may be used as tendency is the evidence of goosing and grabbing and squeezing of the complainant’s breast. Now, if you are satisfied beyond a reasonable doubt, that the accused was in the habit of making these kinds of sexual assaults upon his young daughters, you may use that as tendency by the accused to treat his daughters in an overtly sexual fashion. It may persuade you that the accused has a tendency to see his daughters, not as a father figure might be expected to see them in relation to himself but as sexually attractive objects. That, in turn, may persuade you that it is more likely that the accused committed the offences with which he is charged. It is important however that you appreciate that in relation to the first direction I have just given you about tendency, which is the spooning position, that only applies to [V] and the offences relating to her. It does not apply and it cannot lead you into a view that there is a tendency on the part of the accused to behave in that way towards [K], so set that one aside entirely. In relation to the other matters of goosing and grabbing and squeezing of the complainant’s breast. That of course applies to both of the complainants.” (emphasis added).

39 The complaint of the appellant focuses on the words used by her Honour, namely:

“You could use that finding to assist you to conclude that the accused must have committed the other offences in which a similar practice was adopted.”

40 The appellant submits that the direction of her Honour in that regard was a direction on coincidence evidence under section 98 of the Evidence Act 1995 (NSW), not tendency evidence under section 97 of the Act. It is necessary to set out the relevant provisions:

“97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:
…
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
98(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
…
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:
(a) they are substantially and relevantly similar, and
(b) the circumstances in which they occurred are substantially similar.”

41 The provisions of section 97 (tendency) are the statutory equivalent of what, under the common law, and some of the analyses of the statutory provision, is referred to as propensity evidence. Section 98 is the statutory equivalent of similar fact evidence.

42 The common law may be used as a useful guide to an understanding of the provisions in both sections 97 and 98 but, ultimately, the terms of the statute prevail: R v Ngatikaura [2006] NSWCCA 161 (per Simpson J, with whom I agreed); R v Fletcher [2005] NSWCCA 338 (per Simpson J at [60], with whom McClellan CJ at CL agreed and per Rothman J at [157]); R v Ellis (2003) 144 A Crim R 1 (per Spigelman CJ, with whose reasoning the High Court agreed, see [2004] HCA Trans 488, page 40-41).

43 While there are similarities between the provisions of section 97 and 98 of the Evidence Act, there are distinctions and the purpose of each section is different.

44 The purpose of section 97 of the Evidence Act, dealing with tendency evidence, is to render impermissible a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced, as a matter of law, the evidence is not admissible: DPP v Boardman [1975] AC 421 at 453, per Lord Hailsham.

45 The chain of reasoning that is rendered impermissible by section 97 is that chain of reasoning which:

“… shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person to commit the crime charged. … It was also accepted that in order to be admissible, propensity evidence must possess ‘a strong degree of probative force’ or the probative force … must clearly transcend the prejudicial effect of mere criminality or propensity.” ( Pfennig v The Queen (1995) 182 CLR 461 at 480-481 per Mason CJ, Deane and Dawson JJ) (emphasis added).

46 Coincidence evidence, on the other hand, is evidence of the occurrence of one event that has a substantial similarity with another to prove that the latter event occurred. It is for that reason that the common law referred to it as ‘similar fact’ evidence. However, as previously stated, there is an overlap between the provisions of section 97 and section 98 of the Evidence Act. The evidence that was adduced in this case (earlier sexual conduct) is used, or sought to be used, to prove that the appellant has or had a tendency to act sexually towards his daughters. The difficulty is that part of the summing up by her Honour seems to have focused on the similarity of the conduct to show that the latter conduct occurred in the same manner. This is a direction more applicable to the provisions of section 98 than to section 97.

47 The appeal does not raise whether the evidence could be admitted. The evidence was tendency evidence and the appropriate notice was given. The appeal is that the summing up to the jury misdirected them as to the use that could be made of the evidence.

48 Often tendency evidence is adduced from persons other than the complainant as to events unrelated to the particular conduct that is before the Court. In this case the tendency evidence that is adduced is evidence by the complainant of conduct towards her by the appellant.

49 An appeal court should be extremely careful in combing through a trial judge’s summing up to find error, or to allow counsel, on behalf of an appellant, so to do. Ultimately, the summing up is an exercise in communication between the trial judge and jury.

50 The summing up on this question forms part of a much broader and more extensive summing up dealing with the factual issues and issues of law. In the particular circumstances of this summing up, her Honour paid, as was necessary, particular emphasis to the necessity for the jury to be convinced beyond a reasonable doubt of the conduct alleged. Further, in the second paragraph of the passage extracted at [38], her Honour directed the jury in classic “tendency” terms. No criticism could be made of that passage. On one view of the third paragraph of the summing up it is a summing up more appropriate for coincidence evidence than tendency evidence. In that regard her Honour may have been imposing a test more beneficial to the appellant than would otherwise be the case.

51 In circumstances where the only “tendency” evidence adduced is evidence from the complainant about the appellant/accused, the requirement for the tendency to display the commission of an offence in a similar way is an additional burden that is unnecessary. Thus, tendency evidence would be admissible to prove that the appellant acted with an inappropriate “passion” towards his own daughters, without the necessity of finding that the appellant manifested that passion in a strikingly similar way.

52 Fundamentally, even though the submissions of the appellant are correct, and the summing up, in part, was more appropriate for coincidence evidence rather than tendency evidence, in the current circumstances the degree to which her Honour required and emphasised proof beyond a reasonable doubt negates any actual prejudice.

53 For the jury to have taken into account any of the matters raised by the complainant required the jury to believe the complainant. It also had to believe the complainant above the denials, otherwise contained in the record of interview, made by the appellant. If the direction had been more orthodox, namely, that the evidence may be used for the limited purposes of showing the tendency of the appellant to act with a “sexual passion” towards his daughters, rather than emphasising the similarity of the conduct, no different result could have eventuated.

54 The error, in this regard, if it be an error, was to the benefit of the appellant and imposed the additional requirement that there be a similarity in the conduct. Such similarity would otherwise have met the criteria established by section 98 of the Act. Further, such an error could not result in a substantial miscarriage of justice and, if otherwise necessary, it would be appropriate to invoke the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW). I will return, later in this judgment, to the proviso.

55 Further, her Honour’s summing up, particularly her Honour’s suggestion that the evidence suggested “fairly constant practice of this goosing and grabbing them on their breasts, but more particularly goosing and persistent overt sexual behaviour, which, if the jury accepted it, …falls much more within the tendency area …” was the subject of discussion at trial prior to summing up. After the summing up, no re-direction was sought by Counsel appearing for the appellant and absent a miscarriage of justice or the possibility of a miscarriage of justice, the issue ought not be allowed to be raised at this time. In my opinion there is no real possibility of a miscarriage of justice arising from this misdirection.

Ground 2: Appropriate Warning Concerning Delay

56 Again Counsel for the appellant has extracted those parts of the summing up about which complaint is made. This is done at paragraph 6.3 and 6.4 of Counsel’s submissions. Extracts of the summing up are in the following terms:

“In any trial that involves a lengthy delay between the alleged sexual assaults and complaint, there must be a warning about the dangers inherent in convicting an accused on the uncorroborated evidence of a complainant. Particularly is that so, where the passage of so many years makes it dangerous to convict the accused on the complainant’s evidence unless you are satisfied that [V], when you are considering the counts that relate to her and [K], in the count involving her, have given truthful and essentially accurate evidence. As I told you at the outset and I have probably said a number of times since, you can only find an offence or offences proved beyond a reasonable doubt, if you are satisfied that the evidence of [V] in relation to the counts involving her, and [K] in relation to the Counts involving her, is reliable. That is, that the evidence that particular complainant gave about the event involving them or the events involving them, was both truthful in the sense that you are satisfied she was doing her best to tell you the truth from her recollection and accurate. So that setting aside, setting aside an discrepancies or inaccuracies that in your opinion are minor and not relevant, you arrive at a view that what she told you was essentially an accurate and truthful account of the particular events under scrutiny. For that reason it is essentially that you scrutinise their evidence in considering each count with great care because it is only upon that evidence, that you can find the accused guilty.”

57 Essentially the trial judge summed up on the question of delay to the following effect:

(a) there must be a warning about dangers inherent in convicting an accused on the uncorroborated evidence of a complainant where the involves a lengthy delay between the alleged sexual assaults and the complaint;

(b) this is so particularly where the passage of so many years makes it dangerous to convict the accused on a complainant’s evidence;

(c) nevertheless you can convict if you are satisfied that the complainant, in relation to the counts that relate to her, has given truthful and essentially accurate evidence;

(d) it is essential that the jury scrutinise the complainant’s evidence in considering each count with great care because it is only upon that evidence that you can find the accused guilty;

(e) passage of years creates difficulties in testing evidence;

(f) memories become poorer as time passes, recollections may become distorted, witnesses may not be found who can give relevant evidence;

(g) the accused, particularly, may have experienced difficulty in the preparation of his defence;

(h) the suggestion that each complainant is making up these stories, or their recollection is faulty, which is the defence case, must be considered in the light of the warning as to dangers that arise in cases involving lengthy delay in complaint.

58 I reiterate that the summing up of the trial judge ought not be criticised on the basis of minute detail or combed through for the purpose of finding error that, in the context of the entirety of the summing up, unfairly represents the tenor of the comments by the trial judge: see, for example, R v Tripodina (1988) 35 A Crim R 183. It also must be seen in the context of the addresses of counsel: R v Williams (1990) 50 A Crim R 213. Indeed much criticism has been made of the overly technical nature of a summing up and the capacity of a jury to follow all of its intricacies.

59 In this case, there are some aspects of the summing up of this matter (and some aspects of the summing up in relation to tendency evidence) that are a cause for some concern. The use of the term “must” by her Honour may tend to give the impression that the warning is formal and not one that is accepted by the Court, as it was then constituted. The essence of a Longman direction (see Longman v The Queen (1989) 168 CLR 79) is that it bears the imprimatur of the Court. Regardless of the comments by Counsel, it is the Court’s authority that is used to give the warning. It is not intended to be some general requirement of the law or simply a rule laid down by either the legislature or judges, which the trial judge is required to give. The trial judge, who has been with the jury for the entirety of the trial, must give the imprimatur of the Court, as it is constituted during the trial, to the warning and not give the impression of the warning being perfunctory or not accepting or believing in its importance and validity.

60 In a case, such as the present, that involves a denial of any conduct alleged in the charge, it is still essential that a warning of that kind be given. The necessary question before the jury is that the complainant is lying (or the appellant in the Police interview was lying) and the appellant is entitled to test that evidence. Testing that evidence, absent delay, would involve the appellant challenging the circumstances surrounding the allegations in question; the timing; the location; the absence of opportunity. Independent evidence that might challenge the veracity of the allegations is denied the appellant. A simple example would be independent evidence as to whether the appellant had been drinking on the night that his then wife went to Canberra; or independent evidence as to whether the complainant attended at the Hotel. There may have been evidence of phone calls made or not made and independent evidence of the appellant’s state of inebriation. Such evidence, if it existed, is denied an accused where there are significant delays between an allegation and the complaint.

61 Nevertheless, the trial judge did point out that there were disadvantages associated with the delay and warned that witnesses, who may be able to give relevant evidence, perhaps could not be found. As adumbrated above, a warning was given; the trial judge made it clear that the delay would make it dangerous to convict unless the jury was satisfied that the evidence of the complainant was truthful and essentially accurate; the trial judge warned of possible difficulties in the preparation of the defence; and admonished the jury that it must give careful thought to the possibility that the evidence is false or the result of faulty recollection in light of the warnings given as to the dangers involved in lengthy delay.

62 The passage in Longman, supra, requires repeating:

“But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them…. That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial. After more than 20 years, that opportunity was gone and the applicant’s recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay…. And it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning was satisfied or its truth and accuracy.” (per Brennan, Dawson and Toohey JJ at 91).

63 These comments have been reinforced by the High Court in Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343. They were summarised by Wood CJ at CL in R v BWT (2002) 54 NSWLR 241 in which his Honour said:

“That by reason of delay, it would be ‘unsafe or dangerous’ to convict on the uncorroborated evidence of the complainant alone, unless the jury scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.” (at paragraph [32]).

64 In Crampton, supra, as earlier stated, the High Court reiterated the necessity for a Longman warning. His Honour Chief Justice Gleeson agreed, in this respect with the joint judgment of Gaudron, Gummow and Callinan JJ and briefly stated his conclusion that the direction of the trial judge failed to comply with the requirements stated by the High Court in Longman. The joint judgment (Gaudron, Gummow and Callinan JJ) dealt with this point in the following way:

“[44] As the appellant submits, the first reference by the trial judge to delay was followed by an observation which could have diminished the effect of the caution — it did fall short of a warning — against acting on the evidence of the complainant of a complaint so long delayed. To say what her Honour did in the first passage from her summing up that we have quoted was to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case. The redirection, which we have also quoted, suffered from some of the same or similar deficiencies.

[45] The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman : the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.” (206 CLR 161 at 181-182, paragraphs [44]-[45]).

65 In Crampton the summing up by the trial judge did not involve the expression of a warning at all and did not deal with prejudice that is or may be suffered by the defence in the preparation of its case. The summing up in Crampton fell a long way short of that which occurred in this case.

66 Nevertheless, in my view, the summing up on the Longman warning should have been more emphatic and should have dealt with the prejudice on the accused in the preparation of his case in a manner which expressed the difficulties in a less qualified way.

67 Unlike the summing up on tendency/coincidence a failure to warn appropriately on the basis of delay (a Longman warning) has an insidious effect. Because the Longman warning affects the manner in which a jury deals with the credit of the complainant, the mere fact that the jury believed the complainant does not assist the Crown.

68 In my view, the failure to warn in a manner that was sufficiently emphatic is an error. Given the circumstances of this trial, it is an understandable error, but it is error, nevertheless.

Proviso

69 It is appropriate in those circumstances to consider the operation of the proviso. Section 6(1) of the Criminal Appeal Act is in the following terms:

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

70 The High Court (Weiss v R (2005) 224 CLR 300) has commented that, by hypothesis, the proviso falls for consideration only after the appellate court has decided there was some irregularity at trial. In so doing, the High Court is, it seems, suggesting that the words “might be decided in favour of the appellant” require the appellate court to determine that error has occurred and then, and only then, to examine the proviso. It would seem a more convenient, and more literal, interpretation if the occasion for the operation of the proviso were the existence of an arguable or strongly arguable point, rather than a decision that an irregularity has occurred.

71 A right to appeal against conviction is granted, in general cases including the present, by section 5(1) of the Criminal Appeal Act. Such a right is conferred but limited to “any ground which involves a question of law”.

72 Under section 6(1), an appeal shall be granted if the Court forms one of the following opinions:

(i) the verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence;

(ii) the judgment should be set aside on the grounds of a wrong decision on a question of law; or

(iii) on any ground whatsoever if there be a miscarriage of justice.

73 It is not difficult to envisage an error, including an error in the remarks on summing up to a jury, that satisfies none of the descriptions on (i), (ii) or (iii) above. A misdirection, on tendency evidence and/or in providing a Longman warning, may be an error of law without being a wrong decision on a question of law. Each would, unquestionably, be a wrong decision or a question of law if a judge were to refuse to correct any such misdirection when requested so to do. In Hutchinson v RTA [2000] NSWCA 332, admittedly in other than the context of a criminal appeal, the Court of Appeal said:

“33 Section 54 of the Act enables an appeal against any decision, whether final or interlocutory, which is a decision on a question of law, and is not limited to a final determination ( Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455). The word ‘decision’ is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based ( Clisdell v Commissioner of Police at 559; Commissioner of Police v Donlan (CA, 8 August 1995, unreported)), but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal ( Totalisator Agency Board of New South Wales v Casey at 359; Wijesuriya v The Director-General of Conservation and Land Management (1994) 54 IR 384 at 385). In Totalisator Agency Board of New South Wales v Casey Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law (see at 360: the other members of the Court did not think there had been a denial of procedural fairness).” (Per Giles JA, Meagher and Powell JJA agreeing).

74 If an error of law were not a wrong decision on a question of law, then for an appeal to be successful the error must result either in an unreasonable or unsupportable verdict on the evidence or in a miscarriage of justice.

75 On the view I take of the provisions of section 6(1) of the Criminal Appeal Act, error, of itself, does not entitle an appellant to success. However, it is unnecessary to deal finally with this issue. On the view expressed on the points raised by the appellant there has been “some irregularity” (Weiss, supra, at [36]).

76 The question that then arises is whether the proviso applies. In Weiss, the High Court dealt with the task before an appellate court in applying the proviso:

“[39] Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
[40] Reference to inevitability of result (or the converse references to ‘fair’ or ‘real chance of acquittal’) are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to ‘the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record’. But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, s 568(1) of the Crimes Act. It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred.
[41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
[42] It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.

77 On the basis of the above, it is impermissible in applying the proviso, to deal with the effect of each point raised, considered separately, on the question of whether there has been no substantial miscarriage of justice. It is however useful to deal with the effect of each point before dealing with the entirety of the trial.

78 On the question of the effect of the misdirection on tendency, the jury was required, in order to find guilt, to believe the complainant. The verdict necessarily reflects that belief. The evidence in the proceedings, once the complainant is believed, overwhelmingly establishes the guilt of the appellant. In the context of a summing up of the kind provided by her Honour, any error disclosed by the confusion between tendency and coincidence evidence had no effect on the trial.

79 On the irregularity in the Longman direction, and notwithstanding the criticism of her Honour’s summing up in this regard, the evidence of the complainant, when read in its entirety, is compelling. A warning that left no doubt as to the difficulties faced by the appellant in the preparation of his trial, and that made no qualification as to the warning in relation to the delay in complaint and the uncorroborated nature of the evidence, would have made no difference to the outcome of this trial and no difference to the acceptance of the evidence of the complainant.

80 I am of the opinion, without any qualification, that any error of her Honour in the strength of her expression of the warning required by Longman was not such as to occasion any substantial miscarriage of justice because, even though, as earlier expressed, the lack of an appropriate Longman warning has an effect on the credit and acceptance of the evidence of the complainant, in the context of this trial and the compelling nature of the complainant’s evidence, no miscarriage has occurred. In my opinion the evidence in these proceedings and the impressiveness of the complainant forces me to the view that the appeal must be dismissed because no substantial miscarriage of justice has actually occurred as a result of any error.

81 I bear in mind that a miscarriage of justice, in my view, occurs unless the court can be satisfied, beyond reasonable doubt, of the guilt of the appellant (see Darkan v R (2006) 80 ALJR 1250, per the majority at 1267,1268,1269,1271 [84], [85], [94]-[96], [109] and per Kirby J, dissenting, at 1272 [112]) and that, given that I have not seen or heard the complainant give evidence I do not have the same advantage as a jury or the trial judge.

82 The High Court determined (Darkan, supra) that the issue should be determined in the same way that the question is decided in cases involving an appeal on the basis of the unreasonableness of the verdict. The approach must be the same.

83 The issue is one which depends upon the proper application of s.6(1) of the Criminal Appeal Act 1912 which was considered by the High Court in M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606. The joint judgment of Gleeson CJ, Hayne and Callinan JJ states that when the issue is whether the verdict of a jury is unreasonable or cannot be supported, the test to be applied is that stated by the majority (Mason CJ, Deane, Dawson and Toohey JJ) in M in the following terms:

“Where, notwithstanding that as a matter of law, there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” ( M v The Queen at 493 cited with approval in MFA at 615)

84 The other joint judgment in MFA (McHugh, Gummow and Kirby JJ) also adopted the test in M describing it in the following terms:

“[55] Nevertheless, in M , the majority of this Court favoured what might be termed a ‘broader’ test for unreasonableness or un-supportability of a verdict. Instead of asking whether a jury ‘must’ or were ‘bound to’ have a reasonable doubt about the accused’s guilt, the majority posed the question whether it was ‘open to the jury’ to be satisfied of the accused’s guilt applying the criminal standard of proof beyond reasonable doubt acting as a reasonable jury and reaching their verdict ‘upon the whole of the evidence’.”

85 Where, as here, the conviction depends solely on uncorroborated evidence of the plaintiff, the court must be extremely careful to ensure that it does not too readily make orders that deny the appellant the perception of a fair hearing by closing off an opportunity of acquittal by a trier of fact that has seen and heard him. However, here, the record of the evidence, in its entirety, is sufficient to satisfy me that, even with the disadvantages that the appellant’s case has suffered from the delay, the evidence proves the guilt of the appellant beyond a reasonable doubt and no miscarriage of justice has occurred.

Sentence Appeal

86 The two grounds on sentence (special circumstances and manifest excess) were, understandably because of the necessary level of overlap between them, advanced as one submission.

87 Counsel raises five fundamental points in relation to the need for special circumstances to give rise to a shorter non-parole period than the statutory ratio prescribed by section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those factors that are said to justify a variation to the statutory ratio are:

(a) this is the applicant’s first time in fulltime custody at the age of 57 years of age;

(b) the impact of the accumulation of sentences;

(c) the medical evidence establishing that the applicant suffered from inflammatory arthritis causing pain to the joints, chronic pain to the back and neck; and oesophageal disorder affecting dietary intake and swallowing; and depression and possible alcohol abuse;

(d) that the custody would be of a restrictive kind, namely, in protective custody;

(e) the need for a rehabilitation regime upon release to deal with alcohol dependency and significant relationship difficulties. It further relied upon the report of Doctor Taylor that the applicant had “unstable personality functioning” and “inadequate impulse control”.

88 As her Honour pointed out, an offence of this kind committed by a father on his daughter is an appalling breach of trust in circumstances where the victim is particularly vulnerable. While the appellant had no other criminal record, the offences in question occurred over a significant period of time in which the appellant had the opportunity to reflect upon his conduct and the damage that he was occasioning.

89 Further, unlike some offences of this kind that involve an abuse of a power position without actual or necessary violence, these offences involved actual violence, at least on some occasions, and a forced sexual contact in circumstances of expressed lack of consent from a very young child.

90 Offences of this kind require an appropriate recognition of the need for general and specific deterrence: see R v TWP [2006] NSWCCA 141.

91 Each of these matters was a matter taken into account by Karpin DCJ at sentencing. The submission is, however, that her Honour did not find special circumstances as were warranted by the factors set out above and arrived at a manifestly excessive sentence.

92 The determination of special circumstances is not, of itself, sufficient. The Act (section 44(2) of the Crimes (Sentencing Procedure) Act) requires a statutory ratio unless “the court decides there are special circumstances for [the ratio between non-parole period and a balance of term] being more”, in which case the sentencing judge must give reasons for that decision. It is, as has been made clear on a number of occasions, an exercise in the judgment of the sentencing judge to determine whether, assuming there are special circumstances, it is necessary to give effect to a statutory ratio of less than 3:1.

93 In the current circumstances, Karpin DCJ addressed each of the issues to which the appellant points on this appeal. Her Honour decided upon an overall sentence that precisely reflects the statutory ratio of 3:1. In order to overturn that determination this Court would require evidence that the discretionary exercise miscarried (i.e. there was an error of principle or manifest error), which, on the facts before us, is not warranted: see Chahine v R [2006] NSWCCA 179.

94 The appellant points to the fact that the sentences imposed for individual offences (Counts 3, 4 and 5) imposed a ratio on the basis of a finding by her Honour of special circumstances, which special circumstances are not reflected in the overall sentence. However, it is obvious from the remarks on sentence and the structure of the sentence imposed by her Honour that the special circumstances to which her Honour referred, and which required a variation of the statutory ratio, were the circumstances of the partial accumulation of the sentences being imposed. The fact that there is an accumulation of sentences would itself, in ordinary circumstances, justify the finding of special circumstances to give effect to the statutory ratio on the overall sentence. This is the task upon which her Honour embarked and this is the effect of the finding of special circumstance in relation to Counts 3, 4 and 5: see Wright v R [2006] NSWCCA 122.

95 Notwithstanding the cogent submissions of Counsel for the appellant, the existence of the facts agitated on his behalf do not require a finding of special circumstance nor a non-parole period shorter than is required by the implementation, for the overall sentence, of the statutory ratio prescribed in sub-section 44(2) of the Crimes (Sentencing Procedure) Act. The sentence is not otherwise manifestly excessive and does not disclose error.

96 For the above reasons I propose that the Court make the following orders:

(a) conviction appeal dismissed;

(b) leave to appeal the sentence imposed by Karpin DCJ on 24 June 2005 be granted;

(c) the appeal against sentence be dismissed.

97 Since writing the above, I have had the advantage of reading in draft the reasons of Simpson J. Because there is no disagreement as to the outcome, it is unnecessary to deal in detail with the areas of disagreement. However, I feel it is necessary, at least, to state my position on same.

98 In relation to the issue of the direction on “coincidence”, I have sought to explain that any misdirection is not, absent a request for a correction, a decision on a question of law. It could not, therefore, be a wrong decision on such a question. Moreover, in the context of the whole summing up, it is doubtful that there has been, by this direction alone, a miscarriage of justice or any detriment suffered by the appellant.

99 However, I do not accept that evidence adduced for a particular purpose that does not include coincidence may be addressed by the Crown or summed up by a judge on the basis of its use as coincidence evidence. In order so to do, the preconditions established by section 98 of the Evidence Act would need to be satisfied; so too would the conditions in section 101(2). These have not been addressed by her Honour below. Nor had the appellant been heard on these issues: see Regina v Ngatikaura [2006] NSWCCA 161.

100 The earlier part of these reasons refers to the inappropriate sexual passion of the appellant to his daughters and this is the tendency basis upon which it has been admitted and for which it may be used. By “passion”, I do refer to the expression used in earlier cases. Sexual abuse, like rape, rarely has anything to do with passion; it concerns power and the abuse of it. It is generally perpetrated by those who illegitimately assert power when they consider their’s undermined or consider themselves powerless.

101 Studies have shown that the greatest fear of women victims of abuse is that they will not be believed. The greatest fear of men is that they will be falsely accused. The two fears are not necessarily inconsistent. Whether either one of them is supported statistically, nevertheless each fear may be real.

102 A Longman direction deals with both. It ameliorates the former much used practice of obtaining a permanent stay of “stale” prosecutions, but requires a trial judge to inform the jury of the problems in defending delayed prosecutions. Almost every legal practitioner involved in litigation, and every judge has seen the credibility of otherwise believable witnesses destroyed by a telephone record or a record of accommodation or other independent material. The direction merely requires the jury to be told that and to scrutinize the evidence with that in mind. The common sense of juries will allow that to be given appropriate weight. I do not understand the reasons of Simpson J to be to the contrary. We differ, it seems, on our interpretation of the comments of Karpin DCJ.

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03/07/2007 - Typographical - Paragraph(s) 98, 101