Qualtieri v R - [2006] NSWCCA 95

No judgment structure available for this case.

Reported Decision:
171 A Crim R 463

New South Wales

Court of Criminal Appeal

CITATION: QUALTIERI v REGINA [2006] NSWCCA 95
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 January 2006

JUDGMENT DATE:
4 April 2006

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 111; Latham J at 124

DECISION: 1. Appeal allowed; 2. Convictions and sentences quashed; 3. Retrial ordered

CATCHWORDS: CRIMINAL LAW – appeal against conviction – sexual offences – person under the age of ten years – assault – acts of indecency – sexual intercourse – whether erroneous admission of evidence – whether miscarriage of justice occurred – probative value – unfair prejudice – erroneous directions – rule 4 – whether prejudice resulting from not being able to cross-examine – evidence of uncharged incidents – relationship evidence – context evidence – tendency evidence – propensity evidence – guilty passion – unreasonable verdicts – motive to lie – unreliability – inconsistency

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED: BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
R v AH (1997) 42 NSWLR 702
R v ATM [2000] NSWCCA 475
R v Dann [2000] NSWCCA 185
R v Fletcher [2005] NSWCCA 338
R v Fraser (NSWCCA unreported 10 August 1998)
R v Guildford (2004) 148 A Crim R 558
R v RTB [2002] NSWCCA 104
R v Skaf (2004) NSWCCA 74

PARTIES: Rocco Qualtieri (Appl)
The Crown

FILE NUMBER(S): CCA 2005/1859

COUNSEL: P Boulten SC ( Appl)
D Frearson SC (Crown)

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1177

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 26/01/2006

2005/1859

McCLELLAN CJ at CL
HOWIE J
LATHAM J
TUESDAY 4 APRIL 2006

QUALTIERI, Rocco v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was charged on 5 counts including offences of a sexual nature allegedly committed on BF. He pleaded not guilty and although acquitted on count one he was convicted on the other counts. He appeals his conviction. The counts were as follows:

Count One
That he, between 1 December 1997 and 31 December 1998, at Marrickville in the State of New South Wales, did incite BF, a person under the age of ten years, namely, either three years of age or four years of age to commit an act of indecency towards him. The offence was charged under s 61(O)(2) of the Crimes Act 1900 for which the maximum penalty is seven years imprisonment.

Count Two
That he, between 1 December 1997 and 19 May 1999, at Marrickville in the State of New South Wales, did assault BF, a person under the age of ten years, namely, either three years of age or four years of age, and at the time of such assault did commit an act of indecency on her. The offence was charged under s 61(M)(2) of the Crimes Act 1900 for which the maximum penalty is ten years imprisonment. This count was amended at the trial and the date 1 December 1997 was replaced with 1 August 1996 and the age of the victim was specified as “between the ages of two years and four years.”

Count Three
That he, between 1 December 1997 and 19 May 1999 at Marrickville in the State of New South Wales, did have sexual intercourse with BF a person under the age of ten years, namely, either three years of age or four years of age. The offence was charged under s 66A of the Crimes Act 1900 for which the maximum penalty is twenty years penal servitude. This count was also amended in the same manner as count two.

Count Four
That he, between 1 February 1999 and 31 December 2000 at Marrickville in the State of New South Wales, did assault BF, a person under the age of ten years, namely between the ages of four years and six years, and at the time of such assault did commit an act of indecency on her. This count was charged under s 61M(2) of the Crimes Act 1900 for which the maximum penalty is ten years imprisonment.

Count Five

Crimes Act

2 The appellant was sentenced as follows:

In relation to counts two and four: imprisonment for two years and six months commencing on 14 October 2004 and expiring on 13 April 2007, with a non-parole period of 18 months to expire on 13 April 2006.

In relation to counts three and five: imprisonment for five years commencing on 14 October 2004 and expiring on 13 October 2009, with a non-parole period of three years to expire on 13 October 2007.

The facts

Background

3 The complainant BF was born on 19 May 1994 and is the daughter of the appellant and CF (the mother). The appellant and the mother commenced a relationship in late 1989, the appellant having recently separated from a previous marriage. The appellant has a twenty-two year old daughter from that previous marriage.

4 Since at least 1989 the mother has lived with her mother, MF (the grandmother), her sister R, and R’s children. The house is divided into three flats. One is occupied by the grandmother, the other by R and her children, and the third is occupied by the mother and the complainant.

5 Up until when the complainant was about two years of age the arrangement between the mother and the appellant was that the appellant would stay at the mother’s flat most nights of the week. However, the appellant had a job at Flemington markets which required him to get up at about 3 am causing disruption to the family. Accordingly, arrangements were changed and from approximately 1996 until late 1999-2000 he visited about 3-4 nights per week. By late 1999-2000 the sexual relationship between the appellant and the mother was over. The arrangement from that time on was that the appellant visited on Monday evening, primarily to see his daughter.

6 The complainant’s schooling history was as follows:

7 In July 2001, the mother and a friend, the complainant and the appellant went on a holiday to Bali. The complainant had invited the appellant to join the holiday which apparently passed without incident.

8 On 20 October 2002 the appellant left Australia to visit the United States. On 27 October 2002 the complainant reported some of the matters in respect of which the appellant has been charged to her mother for the first time. The mother reported the complaints to DOCS. On 12 November 2002 the complainant gave a statement to the police which was video recorded. She gave a second statement to the police on 6 March 2003. By the time the appellant returned to Sydney an apprehended violence order had been taken out prohibiting him from seeing the complainant and he has not had contact with her since before he left for the United States.

9 At the time the complainant was first interviewed she was eight years of age. She started giving evidence at the trial on the day of her tenth birthday. Her evidence in chief was mainly comprised of the statements which had been video recorded although she gave some supplementary evidence and was cross-examined.

The complainant’s evidence

Count One

10 The complainant identified the time at which the first count allegedly occurred by reference to her pre-schooling. She said that “it started when I was at Shelley Bear pre school;” she said that the incident happened after pre-school that day. He said for me to touch my vagina, but I didn’t, and then he said, come here.” The complainant said that she did not touch her vagina because “I knew he was going to do something bad.” She said that the appellant said to her “you will feel good when you touch it … I didn’t do it … and he said come here and instead of moving two steps forward, I moved two steps back and then I just ran out the door. And then after that I slammed the door, then I went down to my mum.”

11 The complainant said that her mother was at the back of the house making baskets, which she did for a living. The complainant said she was wearing slacks and a mini dress. She said that she did not tell anyone about this incident until after the appellant had left for America because “I was really scared.” She said she was “scared to tell my mum because she might get angry with me … I was afraid at the time, so I didn’t tell her.” She also said “I knew he was going to touch me; I knew he was going to touch me … (because) he went like that for me to come to him.” She also said “I was going to come to him and then I knew … so then I didn’t come to him; I knew (he was going to touch me on my vagina) because he was leaning as if he wanted to, his expression, that’s how I knew straight away he was going to try.” She said his expression was like he wanted to touch me and she said that she had seen that expression a couple of times.

Counts two and three

12 These counts arise from the same alleged event. The complainant said that on one occasion the appellant walked into the toilet in the self-contained flat whilst the complainant was pulling up her pants and flushing the toilet. She says that the appellant knelt down on the floor in front of her grabbed her tightly and pulled her pants down and placed his penis next to the complainant’s vagina. She said he moved up and down and around until it was ”slimy, wet and oily.”

13 She said that the appellant’s “willy was fat” and “it was really fat, soft as well. Cause I remember one time I didn’t know what it was, I didn’t know cause I was like about three or something like that, I didn’t know what it was so I went and played with it, and started feeling it and it felt really soft. It was big, it was fat; it had a hole in the middle.”

14 When recounting that the appellant’s penis had slimy stuff on it the complainant said “it was all slimy and yukky – it was yuk I felt like vomiting it was all yukky, wet and oily and felt yukky where the hole was and around it.” The complainant said that after the appellant left she got into the sink and washed herself. She said she got into the base of the sink and started splashing and started washing.

15 The complainant also said at this time the appellant “put his finger (in my vagina).” She said this incident happened when she was about three years old. She said she could not remember what time of day it was but thought it was in the afternoon. She said “I was in nappies … I think I was wearing a dress … I was wearing pull ups.” She said she used to pull them down and I used to go to the toilet and then used to pull them back up. She said she finished wearing pull ups when she started at kindergarten but used to wear them when she was at Shelly Bear.

16 The complainant said she did not tell anyone about the incident at the time because she was scared. She said she told her father to stop it and she did not like it. She said that she was angry with her father about the matter and had stamped her feet. She said she knew that her father had put his finger inside her vagina because it hurt her. “It felt sore and it hurt me a lot.” She said that he put his finger and rubbed her vagina softly at first rubbing in circles and then up and down.” Then he rubbed it in and out and when he rubbed it in, like when he put his finger in it really hurt me.”

Count Four

17 The complainant’s evidence in relation to this matter was contained in her second statement. This statement was made after her grandmother had reported the event but was not offered by the complainant when first recounting the events.

18 The complainant said that this event happened when she was in her grandmother’s lounge room after dinner. Her father was present and told her to come and sit on his lap. The complainant said she did this and her father put a pillow on top of her. At this stage the complainant said her grandmother walked into the room and sat down. She said her father was sitting on the edge of the lounge and “he went in my pants and he started feeling my vagina. He started playing with it.” The complainant says that her grandmother then told the complainant to come to her. She said that the appellant then quickly took his hands out and made he was scratching his nose “but he actually smelt his hands.”

19 The complainant says that the appellant had warned her not to tell anyone about what had happened and that she was scared that if she did her father would smack her. She also gave evidence of fearing punishment from her mother if she found out.

Count Five

20 The complainant gave evidence that when she was in first grade (in Miss O’Neil’s class) one Monday she was sitting on the appellant’s lap when he put his hand inside her pants and started “moving his hand up and down and all around.” She said that the appellant put his finger inside her vagina which hurt a lot. She said the incident happened after school when she was wearing her school uniform and her mother was working at the back of the house. She said she tried to break free and whacked him on the hands. She said that he rubbed her vagina for about 10 to 15 minutes.

Other Evidence given by the complainant

21 Apart from the evidence specific to each individual charge the complainant gave evidence of a visit, (with her mother) to Dr Lydia Kovach when she had a sore throat in late 1999. She said that while she was there she refused to allow Dr Kovach to examine her genital area. The complainant said she did not want this to occur because her vagina was red and sore because the day before the appellant had rubbed “his willy around her vagina.” This was identified as relating to the alleged incident in the toilet. The complainant also gave evidence that she did not like having conditioner put through her hair because it reminded her of “Dad’s slime.”

22 In her evidence the complainant also expressed her feelings of animosity towards the appellant. She gave evidence that he used to “bite me and kiss me on the cheek and it really used to hurt because he squeezed me so tight I had the feeling he was going to kill me.”

23 The complainant also gave evidence of an incident when money was taken from her and she blamed her father for this occurring. She said “he just likes taking money from me. He is a big liar and he just likes money and he likes taking it from me cause he is always … he has never been a good father to me.” The complainant said that she believed that the appellant had never loved her or done anything for her. She said her mother had told her of an occasion when her mother had given the appellant $50 to buy nappies but instead of buying the nappies he went out to an hotel and bought himself a drink and never paid her mother. She says as a consequence she did not have a nappy to change into.

24 The complainant said that she believed that the appellant wanted to kill her giving evidence that “he used to have a very angry expression on him.” She said there was a chair he liked sitting in all the time and he just sat there and “had a very angry expression on, like, a very angry and mean expression on him like he wanted to kill me and I didn’t like that at all.”

25 When the complainant was cross-examined she agreed that a young boy who lived nearby used to bite her on the cheek which hurt her. She also indicated that when she gave her statements to the police she believed that her father had taken money from her bedroom cupboard. She accepted that she continued to believe this even after her mother had told her that her father had not taken it. She indicated that she believed that her father never cared for her or loved her and had done nothing for her. One of her reasons for believing this was that her father did not live with her and her mother.

26 The complainant also accepted that she had told the police that her father used to try to kill her but this was not true. She said although she told the police officer that her father used to try to stab her this was also an exaggeration. She said that although she had told the police officer that her father had stopped doing things to her since Ms O’Neill’s class (2001) she was still scared of her father in November 2002 because she thought he might do it again as she never knew what was going to happen next.

27 Dr Kovach gave evidence and confirmed that the complainant and her mother had attended her surgery on 16 December 1999 when the complainant was suffering from tonsillitis and a fever. She said that as a result of something which the mother had said to her she went to examine the complainant’s genital area but the complainant would not allow this to happen.

28 When cross-examined Dr Kovach agreed that there could be a number of reasons why a young girl, of about five-six years of age, may have a red, itchy vaginal area which could include poor hygiene, vaginal infection, irritation caused by soaps and creams or due to the child playing with herself. She also agreed that it was not unusual for children between the ages of three to six years to play with their genital area as this was part of their normal self-discovery process.

The evidence of the mother

29 The mother gave evidence. She confirmed that after the complainant was born there was an informal arrangement whereby the appellant would visit three to four times per week which by late 1999-2000 had become every Monday evening. She began her basket making business in December 1997. After that time the usual routine was that the appellant would visit from approximately 4 pm and spend a few hours with the complainant (whilst the mother was working at her basket making). They would have dinner together at approximately 6 pm and the appellant would stay for a few more hours and then go home. The mother confirmed that the complainant believed that the appellant had taken money from her bedroom although the mother had told her this was not the case. However, the mother said there was an incident involving the appellant taking a money box which had upset the complainant. She said that she had never said anything to the complainant which would have made her conclude that her father did not care for her or love her. She said, contradicting the complainant, that the appellant had never hit the complainant with a belt.

30 The mother also confirmed that the complainant had contracted nits in 2001 for which treatment had been applied to the complainant’s hair. She also confirmed that she had noticed that the complainant had a red vagina and that on the doctor’s advice had applied creams but the redness returned. She confirmed that the complainant had refused to let Dr Kovach examine her genital area.

31 The mother also confirmed that the reason the complainant gave for not liking conditioner being put through her hair was because it reminded her of “Daddy’s slime.” This was said to have been said by the complainant in December 2002. The mother said that she had never discussed with the complainant the reasons why she and the appellant were not living together. She said she believed the complainant understood the reasons and did not believe there was any need to explain the nature of the relationship to her.

The appellant’s case

32 The appellant gave evidence and denied all of the allegations. He said that he had never bitten the complainant on the cheek, nor anywhere else and he had never hit her with a belt. He said that the complainant had invited him to join the family on the trip to Bali in 2001. He said that the complainant had contracted nits at school and had told him that the reason she did not like having her mother putting conditioner through her hair was because it reminded her of the nits treatment.

33 The appellant said that he was completely unaware that the complainant did not like him or believed that he did not love her and that he became aware of this only when he read a transcript of her statements to the police. He said that he had explained to the complainant why he and her mother did not live together.

34 He also gave evidence of his observations of the bites which the boy had made to the cheek of the complainant which he observed to have left marks on her face for a few days.

35 The appellant also gave evidence of the good relationship which he had with his other daughter from his previous marriage. That daughter gave evidence. At the time of the trial she was twenty years of age and stated that she had a good relationship with her father with whom she had kept in regular contact since her parents’ separation. She said that she was shocked by the nature of the allegations which she had read and said that she did not believe that her father could have done such a thing. She said that he had never done anything of that nature with her. Other evidence was given of the appellant’s good character.

36 Evidence was also tendered of reports from the complainant’s schools. These reports indicated that during the relevant years the complainant was a happy, well adjusted, friendly child and there was no indication of any trauma or anxiety arising from sexual abuse or any other cause.

The appeal

37 There are two grounds of appeal although each ground has a number of limbs.

Ground One

38 Under this ground the appellant alleged there was a miscarriage of justice resulting from the trial judge’s erroneous admission of evidence, erroneous directions to the jury and an unbalanced summing up of the defence case. It was submitted that these errors related to significant issues in the trial which have resulted in the appellant having lost “a real chance of acquittal” causing a substantial miscarriage of justice, so that the proviso under s 6(1) should not be invoked.

39 Four matters are advanced. I shall deal with each matter in turn.

1. It is submitted that the evidence of Dr N Nathanson set out in the agreed facts and the evidence given by Dr L Kovach (in relation to her attempted examination of the complainant in December 1999) should not have been admitted into evidence. Such evidence was not only of very little probative value but was unfairly prejudicial to the accused and should have been excluded both under s 135 and 137 of the

Evidence Act

1995.

40 The appellant says the first problem lies with the evidence of Dr Nathanson, a paediatric registrar at the Sydney Children’s Hospital Randwick. He examined the complainant on 5 December 2002 and expressed the following opinion: “genital examination is normal. The absence of any medical findings is not unexpected and cannot be taken as evidence that the assault did not take place.”

41 It is submitted that this evidence was at best “neutral” and for this reason should not have been admitted. It is further submitted that if it served any forensic purpose it had the effect of bolstering the complainant’s credibility and was inadmissible having regard to s 102 of the Evidence Act.

42 It is important to understand that the evidence of Dr Nathanson was incorporated into a document which set out facts which had been agreed by the parties pursuant to s 191 of the Evidence Act. Accordingly, not only was no objection taken to the tender of the material during the trial it was in fact the subject of a consensual tender.

43 Although the appellant asserted that rather than offering a neutral opinion the evidence bolstered the complainant’s credit resulting in an unfair trial, I do not believe this was the case. In support of this submission the appellant refers to decisions of this Court in R v Dann [2000] NSWCCA 185; R v RTB [2002] NSWCCA 104; R v Skaf [2004] NSWCCA 74; R v Guildford (2004) 148 A Crim R 558. However, in these cases the expert used the phrase “consistent with the complainant’s evidence” when expressing an opinion (see Skaf at [24], Guildford at [31] and Dann at [6]). This would clearly have the effect of bolstering the complainant’s evidence. However, in the present case the opinion is confined to an expression that the lack of any abnormality in the genitalia is not evidence that the assault did not take place. To my mind this is an entirely neutral expression.

44 It must also be remembered that the medical examination which took place occurred at least two years after the last alleged allegation of sexual assault. Accordingly, to my mind the evidence should not have been admitted – it lacked relevance. However, the jury would well have understood that it was of no evidentiary value and its tender occasioned no disadvantage to the appellant.

45 I would refuse leave under rule 4 in relation to this aspect of the matter.

46 In relation to Dr Kovach’s evidence the Crown case was that the complainant’s vagina was red and sore at the time because the appellant had sexually assaulted her as recently as the previous day. The evidence of the complainant was that she had refused to remove her underpants to allow Dr Kovach to inspect her vaginal area because “I was scared that she would pick up because I was very red and sore and scared she would pick up what happened so I was scared to tell her.” The complainant then related that the day before, her father had rubbed his penis around her vaginal area in the toilet.

47 Although no objection was taken to the evidence at the time it is submitted that it had very little probative value and was unfairly prejudicial to the appellant, particularly given the way in which it was relied upon in the Crown case. The Crown Prosecutor’s submission was that the evidence was consistent with or corroborative of sexual assault by the appellant but it is submitted that it was equally consistent with the competing inference relied upon in the defence case. That competing inference was that for reasons not associated with any actions of the appellant the complainant was embarrassed by her inflamed genitalia. It was submitted that this could have been caused by the complainant masturbating or some infection. It is submitted that accordingly there was an unfairness to the appellant because there was a real danger that the jury would give this evidence significance which it did not have. It was submitted that the tender of the material raised a dilemma for the appellant as to whether or not his counsel should question the complainant in relation to it. It was further submitted that the complainant may have, due to embarrassment as to her own actions, denied a suggestion that the cause of the inflammation of her vagina was due to something other than sexual interference by the appellant. It was submitted that it may also be that her embarrassment was due to the nature of her condition rather than the alleged cause of it.

48 The mother gave evidence that when her daughter was about 3½ to 4 years she had noticeable redness of her vagina and “would buy creams from the chemist” and raised it on odd occasions with Dr Kovach. She stated “it would go away and then it would come back again, and I just repeat doing the same thing.”

49 The significance of Dr Kovach’s evidence is confined to the fact that the complainant was not prepared to allow her vaginal area to be examined. She did not on this occasion observe the complainant’s vagina and accordingly, gave no evidence of it being red or inflamed. When cross-examined the doctor conceded that there were a number of reasons why young girls have red or sore vaginal areas including infection, irritation caused by soaps and creams or playing with their genital areas.

50 Having regard to the evidence that a redness of the vagina of a young girl may be explained by factors unrelated to sexual abuse the evidence of Dr Kovach required careful consideration before being admitted. However, having regard to the whole of the Crown case its significance was not great and the defence led evidence of innocent explanations for the redness. The matter was not agitated at the trial and leave is required. I would refuse leave.

2. The evidence contained in the complainant’s second statement dated 6 March 2003 should not have been admitted into evidence (and consequently, count 4 removed from the indictment). This was because of unfair prejudice to the accused in not being able to cross-examine the grandmother who on the Crown case was present when this incident occurred. Such evidence should have been excluded under s 137 of the

Evidence Act

1995.

51 The allegations of the complainant in relation to count 4 were not made until after the complainant’s grandmother had made a statement in which she identified her observations of the relevant events. That statement by the grandmother was given on 12 March 2003.

52 In her statement, the grandmother confirmed an occasion in about 1999/2000 after she sat down in her loungeroom when she saw the complainant lying across the accused’s lap. She said she saw the accused put a cushion over the complainant’s stomach area and put his hands under the cushion. She said that he did this for about 5-10 minutes and then pulled out one of his hands from under the cushion and smelt his fingers.

53 In her statement, the grandmother said that she was disturbed by the incident and asked her grand-daughter what she was doing. The grandmother knew her grand-daughter was upset and that she was angry with her. According to the grandmother about two months later she pulled her grand-daughter aside and said twice “I saw you doing something with Papa.” The grandmother said that although the complainant did not directly answer the question she begged her grandmother, who agreed, not to say anything to her mother for fear of the appellant harming her.

54 The complainant’s account of these events in her second interview was similar although not identical with that of the grandmother. The complainant said that her grandmother saw the incident and told her to “come here” in a tone which was “a bit angry but not that much.” Her grandmother asked her what happened and the complainant said “nothing.” One or two days later her grandmother demanded to know “what was that about, like, what happened?” She told her grandmother, “nothing. If I tell you I am going to get a big smack from my dad … if I tell you, don’t tell mummy.” Her grandmother did not mention anything to her mother.

55 At the time of the trial the grandmother was 80 years of age and had been diagnosed with “severe dementia.” Dr Kovach gave evidence that the dementia started to be noticeable in 2003.

56 Because of the grandmother’s condition she did not give evidence. The complainant’s second statement was also edited to delete any reference by the complainant to evidence which the grandmother might have given about this incident.

57 It is submitted by the appellant that although there were similarities between the accounts given by the complainant and her grandmother there were also some significant inconsistencies in their accounts. The timing of the statements is also emphasised. The fact that the complainant did not disclose this incident – which allegedly occurred within the same time span as the other previously disclosed incidents – until approximate to the time the grandmother made her statement, is submitted to be suggestive of collusion between the complainant and her grandmother with consequences in relation to the complainant’s overall credibility.

58 Because the grandmother was not called to give evidence in the Crown case it is submitted that the appellant was deprived of the opportunity of testing the complainant’s credibility in relation to this particular charge (by comparing her account to the grandmother’s) but more significantly, the accused was deprived of the opportunity of raising the strong possibility of collusion with the grandmother. It is submitted that such a possibility would not only have severely damaged the complainant’s credibility in relation to that charge, but also in relation to the other charges.

59 To my mind there is no substance in the appellant’s submission. The fact that the grandmother was not called and the editing out of references to the grandmother’s potential evidence from the complainant’s statement did not preclude the appellant from raising with the complainant the suggestion that she only gave an account of these events after the matter was raised by her grandmother. If it is the case that the complainant did not initially raise the matter, this fact could have been independently demonstrated and the coincidence of her grandmother raising the matter and her own reporting of it put before the jury.

60 The appellant argues that apart from the timing of the complaint, because the grandmother could not give evidence, he was denied the opportunity to emphasise the inconsistencies between the account of the grandmother and that of the complainant. I do not accept this submission. It was always open to the appellant to require the tender of the relevant material which would have enabled the comparison to be made. The fact that this did not happen was a conscious forensic decision and did not result in any unfair prejudice to the appellant.

61 The jury were of course aware of the absence of the grandmother and that she could not give evidence. For this reason the trial judge gave the following warning:

“… the absence in these hearings of the complainant’s grandmother through no fault of anybody’s, but her absence nonetheless, and the difficulties that that presents the accused challenging the complainant’s factual account of the fourth alleged events … are all warning signs you must recognise when considering the complainant’s testimony.”

62 I am satisfied, in the circumstances, that such a warning adequately addressed any possible prejudice. This ground of appeal fails.

3. The trial judge erred in the way in which he referred to and directed the jury as to the “relationship” evidence. The way in which this evidence was dealt with by the trial judge caused an injustice to the accused.

63 At the conclusion of the complainant’s evidence-in-chief, the trial judge referred the jury to a number of examples of uncharged sexual conduct referred to by the complainant in her statements, which his Honour referred to as “relationship evidence.” The trial judge then gave the jury a lengthy explanation as to its relevance in the Crown case and told the jury that they could use this evidence in two ways, firstly, to put the offences in context and secondly, as having some bearing on the complainant’s credibility. His Honour said (emphasis added):

“Now in respect of this material there’s another direction I want to give you in respect of material that appears in this first interview. Evidence is available from this first interview of what lawyers call ‘relationship evidence.’ Relationship evidence is comprised of a number of – there are a number of ingredients that go to relationship evidence on the Crown case here but particularly there is evidence of a number of uncharged sexual incidents, uncharged meaning they don’t appear on the indictment that you have got. Sexual incidents which on the Crown case, relying upon the evidence of the complainant, have occurred other than the five matters that are in the indictment.

If I can take you for example just so that you clearly understand the sort of material I’m speaking of to question 118. ‘The very first time, I tell you one thing he keeps trying, he still tries now and he used to put his hand, and he used to touch me on my rude part and he used to move it around, up and down. He used to put his finger in my hole and out again, and it really hurt.’ If I can take you to 134. ‘He used to take me to the toilet and when I used to go to the toilet he used to come in and he used to pull his pants down and take his willy out, and then he moved it up and down.’ And then she’s asked to focus on one of those issues. One of those instances you see in the next question.

I think 164 is another example of the material that I’m talking about. The question is ‘Did your dad ever put his willy in your vagina because you said he put his finger in there?’, and the answer is ‘No he never did.’ And then the questioner brings him back if you see on 166, ‘On this occasion that you’re telling me about right.’ So that the questioner is speaking generally and then brings him back to the specific one which I think you’ll find is probably the second or third count in the indictment.

What I am trying to do is to distinguish between the specific counts in the indictment and material in this record of interview which speaks generally of sexual incidents. 170 I think is another instance of it. ‘How many times has he done that?’ ‘Maybe about ten, something like that.’ And then she begins the countdown, or the count up. That’s another instance of uncharged allegations of sexual conduct. 173 I think is another instance of it. ‘Where was mum?’ ‘She was actually working down the back because everything that he’s done would be behind mum’s back.’ That’s speaking generally not about a specific charge.

Again at 275 – I’ll take you through more detail when I come to summing up, but I just want you to understand generally the proposition I want to advance to you in a minute. 275, ‘Sometimes he rubbed his penis there and other times he rubbed his finger there.’ 297 she repeats – well she’s asked directly, ‘You said that it happened about ten times’, and she repeats that. Question 303, she’s asked this question, ‘Can you remember another time it happened in the toilet?’ Answer ‘No, all the times that it would happen it would be the same except a bit shorter, like he wouldn’t put his finger in.’ They are uncharged allegations of sexual misconduct. 396 I think is another example of it. ‘I would always say ‘stop it I don’t like it’, so I’d want him to stop’, and at 399, ‘One time I whacked him.’ Question 402 is a question directed to the general, ‘How many times would you say your dad’s done something to you whether it be in the toilet or in the loungeroom. Her answer in 403 ‘I don’t know, a lot of times he’s done – like he might have done it all these times, I can’t even count them all, like he’s done them so many times, I don’t know.

There’s also an answer in the second interview too that I want to take you to, it’s an answer at 211. At 2.10 she’s being asked, ‘When he was rubbing your vagina what did it feel like?’ And she says, ‘Not nice.’ 211, ‘not nice, not very nice but then he would make it feel nice when it wasn’t nice.’ That also is relationship evidence and it will be a matter for you whether she’s speaking about a specific incident or about a general incident. That is so a specific incident which will be count 4 or just generally.

Now there’s other evidence which also relates to relationship evidence such as for instance the accused’s relationship to the complainant, he was the father. Evidence that when these events happened, if you accept that they did happen, they only happened with one exception, it would seem when the accused and the complainant were alone in the same room.

The evidence is capable of placing the five offences charged, which is really what your major consideration is, against the accused into what the Crown would argue is a true and realistic context. The better for you to evaluate what might otherwise have appeared as five unconnected isolated acts. Each of them occurring without any apparent reason.

The Crown says that if you take the global view of all of the acts, you would find as a fact, that within the accused there was sexual feeling or passion for the complainant, that he was prepared to satisfy

If you are satisfied that the accused harboured sexual feelings or passions for her, that fact may well make more credible or believable the complainant’s evidence of this specific five incidents that appear in the indictment. Whether it does so or not will be a matter for you to determine. But what you must understand is relationship evidence cannot amount to evidence which directly proves any of the fundamental ingredients of the five offences charged. It can be taken into account in the two ways in which I’ve indicated. That is, it can go to her believability and it can go to the true context on the Crown case in which these offences were committed. So that’s how you can use it. How you cannot use it is also important to tell you. You may not use relationship evidence to substitute for the evidence you’ve heard of non-charged sexual incidents.

There can be no blurring of the specific sexual act the Crown must prove beyond reasonable doubt

64 During the course of his directions (and before his Honour had summed up the Crown case), the trial judge told the jury that he was now going to explain more fully the evidence of uncharged sexual conduct which he had earlier referred to as “relationship evidence.” The trial judge then took the jury to a substantial number of questions and answers from the complainant’s first statement, which the Crown relied upon as “relationship evidence.” After traversing that evidence in some detail and then some other evidence – which it was submitted was wrongly referred to as also constituting “relationship” evidence – the trial judge finally directed the jury as to the “use” to which they could put this evidence. His Honour said:

“Speaking generally about assessing evidence and approaches to witnesses and approaches to evidence, I want to deal now with relationship evidence which I referred you to earlier and it may help if you have got that first interview available.

Evidence has been led in the trial which I have described to you as relationship evidence and I told you what lawyers meant by the term relationship evidence and I drew your attention to specific evidence the Crown relied upon earlier in the trial. There is evidence of uncharged sexual incidents, on the Crown case, having occurred other than the five specific matters which constitute charges in the indictment.

If I can take you particularly to question and answer 118. ‘I tell you one thing,’ is the answer:

‘he still tries now and he used to put his hand and he used to touch me in my rude part and he used to move it around, up and down and around.’

Just put an R next to that, that is relationship evidence.

If I bring you to 133 and 134, she is asked a question ‘If you remember the next time’ and she says:

‘He never done that again. He used to take me to the toilet a couple of times. He used to do that a lot, actually take me to the toilet;’

You can put an R next to that, that is not specific either.

‘He used to take me to the toilet,’ this is 134 I am into now, ‘When I used to go to the toilet he used to come and he used to pull his pants down’, that is relationship evidence. Put an R next to that.

One sixty-one, 162, there are three questions, 161,

Now that is not a specific count. That is general, so that gets an R, 162.

One sixty-four is again three questions; really, it is an interrupted question, but the answer there:

That is relationship.

One seventy:

That is relationship and there is another answer not dissimilar to that at 297 which is the answer Ms Salsone was referring to in her submissions to you yesterday where she said:

That is not the one, there is another one too where she speaks of three, four, five, six, seven, eight, nine times.

If you see question 227 – it is a general question in any event – ‘He would walk up to me’ – this is the answer to 227:

‘he’d grab me by the hand and he would just pull them down. He would pull them down, pull his willy out and rub it all round.’

All of that material from 227 to 242 is speaking generally and therefore is relationship evidence. Two seventy-three to 278.

I will come back to 271, but 271 is evidence of a specific offence and I will come back to that, but 273:

Two seventy:

You see, the question is general. ‘So sometimes’, that is relationship. Two seventy-five and then the answer:

A. When I used to, this is another time, it is like a separate time, not in the toilet, once he said for me to come and sit on his lap,’

276, ‘and I would sit there.’

Two seventy-seven is a sexual incident that is not charged; it is a relationship matter.

Question 303:

That is not an offence in the indictment, that is relationship, they are uncharged sexual offences, so it is relationship evidence.

Three-ten to 311:

‘I’ll pick one when I was small, like, very small,’

it is an incident she is referring to but it is not one that has been charged so it is relationship. On the Crown case that is an incident that occurred, but is not one that the Crown has chosen to put in the indictment.

Three twenty-seven to 337, she is speaking about always sitting on his right and he had put his right hand inside her underpants and he would move it around in circles, so, 327 to 337 on the Crown case are incidents that did occur but the Crown has not put them in the indictment, so they are relationship evidence.

Three seventy-six to 380 and the diagram then as a result that comes is relationship evidence:

‘I would always lie on the lounge, I love lying on the lounge, I’d by lying on the lounge, say, I’m here and dad’d be sitting there’

and then 380:

‘He’d come up from the back, put his hand in from the back into my pants into my underwear.’

On the Crown case, these are sexual incidents that did occur but they are not incidents that are charged in the indictment. So, they are what is called relationship evidence.

Three ninety-six:

‘I would always say ‘stop it, I don’t like it’ so I would want him to stop.’

That again is an aspect of evidence in relation to the relationship that existed between them.

On the Crown case you can begin to see the nature of the relationship. It was one where she was opposed but he would press on, so it goes to the nature of the relationship that answer, as well, 396.

Three ninety-nine:

‘I’d whack him because I didn’t like it, I’d get so furious I’d whack him when he moved his hands.’

That again is not evidence related to any specific charge in the indictment, it is relationship evidence and it establishes, if you like, understanding the word relationship, some of the tension, some of the issues that are passing between the parties.

Four-o-two to 404, clearly relationship evidence:

‘Q. How many times would you say your dad’s done something to you?’

and her answer, generally, is:

‘All these times, I don’t know, I can’t even count them, so many he’s done’,

that is 404. So, 402 to 404 is relationship evidence.

Four twenty-five to 429 picks up really where Case Worker Clark begins to ask – she is speaking about:

‘He’d settle in about an hour, sometimes mum would be working down the back, because she’d have to finish but I don’t mind because she needs to.

That relates, again, to relationship and the circumstances in which the offences were occurring and a reference to uncharged offences.

In the second interview there is also some relationship evidence, particularly at question 210 and 211. The question was asked in circumstances where they were really focusing on a specific event, so if you look at question 210:

‘Q. When he was rubbing your vagina what did that feel like?’

It would appear to have been interpreted in a different way through the eyes of the complainant, as I say, we see and hear things through our own eyes and she speaks generally:

‘A. Not very nice but then he would make it feel nice when it wasn’t nice.’

It may in-part have referred to this offence, but it seems to me that it is more safe to treat that as relationship evidence.

It is important to identify the relationship evidence because as you

will see

one of the things you must be careful about is distinguishing between the evidence that you are looking at for the offences and the relationship evidence and you cannot let any of the relationship evidence slip over and merge or blur the lines with the offences that you are dealing with. I will come to that in a minute.

There is other evidence which is also capable of constituting evidence of relationship. You will recall that at the conclusion of her account of the episode that the Crown charges as digital penetration of the complainant when her grandmother entered the room the complainant said to her grandmother, ‘If I tell you I am going to get a big smack from my dad’ and in the same conversation, ‘If I tell you don’t tell mummy.’

There is evidence the complainant did not tell her grandmother of the episode because she was scared that the accused would smack her, that he had given her a warning that if she told anyone she would get a big smack with his belt or he would tell her mother she had been naughty and the evidence for that is in question and answer 105 of the second interview, ‘I said ‘nothing’,’ and continuing in the conversation she was having with her grandmother. So, the ‘nothing’ is something that she actually said to the person to whom she was speaking, so it is in quotation marks.

‘My answer was ‘Nothing, if I tell you I’m going to get a big smack from my dad’ and she said’

and that she we think must be the grandmother we can infer – but it seems that the complainant then continues on with her own conversation:

‘If I tell you you’re going to – don’t tell mummy’ and she said ‘all right, all right’ but I ended up not telling her.’

There is evidence that the complainant’s mother appeared to be the sole carer, - this is more relationship evidence – that the accused was her natural father but resided in other premises, although would visit, at least towards the end, on Monday evening and some Sundays. There is evidence these events, with one exception, happened on occasions when only the accused and the complainant were in the same room.

Whether you accept any or all of these events occurred is a matter for you. My task is to explain the use that you can make of the relationship evidence if you accept it.”

65 Immediately after this direction, the trial judge again summed up the relevance and importance of this evidence in the Crown case and explained to the jury the ways in which they could and could not use the evidence. His Honour said:

“120. The relevance of the evidence is this, that relationship evidence is capable of placing the five offences charged against the accused into what is called a true and realistic context, from the Crown’s point of view – the better for you to evaluate what may otherwise appear as five isolated acts occurring without any apparent reason. On the Crown case the relationship evidence constitutes part of the essential background against which the evidence of the complainant and the version given by the accused can be evaluated.

121. The Crown argues the relationship evidence puts the five specific incidents into a realistic or a true context. The features of that context or background on the Crown case include what might be described as the presence in the accused of sexual feeling or passion for the complainant that he was prepared to satisfy and satisfy frequently, an absence of surprise or shock by the complainant at his sexual advances, the accused’s apparent confidence that the complainant would regard his sexual approaches to her at least sufficiently submissively for him to get his way and without complaint to another adult to allow him to persist in approaching her and would explain the complainant’s failure to draw these sexual incidents to the attention of anyone until November 2002, some couple of days or so after the accused had left for a visit to America. So, on the Crown case, the relationship evidence has this importance, that it gives you a texture or a feel to how it can be that five offences can occur over that span of time, but they are not isolated and there are these other issues, as it were, going on between the parties.”

66 His Honour then continued:

“122. There is evidence which, while it does not amount to supporting evidence because it comes from the behaviour of the complainant and not from some source completely independent of the complainant, may also be relevant to the relationship evidence. You will recall the complainant’s behaviour in conversation with her mother in respect of the application of hair conditioner during a shower at a friend’s unit. The only use you can make of that particular evidence is that it is consistent with her other evidence of sexual activity by the accused with her. It is not evidence which otherwise contributes to the proof of any element of any of the five specific offences that have been charged.

you would need to be satisfied there was no other inference available on the evidence before you.

124. The relationship evidence, if you accept it, may also be used as impacting upon the complainant’s credibility.

but relationship evidence of sexual offences cannot amount to evidence which directly proves any essential element of a charged offence. But, it may be a factor to be taken into account in the two ways I have indicated in assessing whether the Crown has proved the charge that you are considering beyond reasonable doubt.

You may not use relationship evidence to substitute or blur the evidence that you have heard of non-charged sexual incidents for those on the indictment

the Crown must prove beyond a reasonable doubt.

The fact that other incidents occurred that were like this one, if that should be your finding, would not itself amount to proof that the specific charge you are considering occurred.”

Appellant’s submissions

67 It was submitted that by the end of the process undertaken by the trial judge, the jury would have been, at best, totally confused as to the significance and probative value of this “relationship evidence.” At worst, it was submitted the jury would have been under the mistaken belief that its significance or probative value was the same as the evidence relied upon by the Crown to directly prove each charge. That is, its significance or relevance had been elevated to the very level it should not have been. It was submitted that there was no need for the trial judge to have referred to such evidence in the detail that he did. By this stage, the jury was already aware of the specific evidence relied upon by the Crown in relation to each charge – the Crown Prosecutor having gone through this evidence in the complainant’s two statements in some detail in his closing address (when the jury had transcripts of the complainant’s statements and oral evidence). Such detail and repetition from the trial judge would only have emphasised the significance of this extremely prejudicial evidence, instead of ensuring that the jury had a proper understanding of its legal significance.

68 It was also submitted that the trial judge erroneously categorised to the jury some evidence as being “relationship evidence”. The following passages are referred to:

“There is evidence that the complainant’s mother appeared to be the sole carer, - this is more relationship evidence – that the accused was her natural father but resided in other premises, although would visit, at least towards the end, on Monday evening and some Sundays. There is evidence these events, with one exception, happened on occasions when only the accused and the complainant were in the same room.

There is evidence which, while it does not amount to supporting evidence because it comes from the behaviour of the complainant and not from some source completely independent of the complainant, may also be relevant to the relationship evidence. You will recall the complainant’s behaviour in conversation with her mother in respect of the application of hair conditioner during a shower at a friend’s unit. The only use you can make of that particular evidence is that it is consistent with her other evidence of sexual activity by the accused with her. It is not evidence which otherwise contributes to the proof of any element of any of the five specific offences that have been charged.”

69 It was submitted that this erroneous categorisation of what was really corroborative evidence as “relationship evidence” would have further confused the jury as to its nature and significance. More importantly, it would also have resulted in the jury using it for the very purpose they should not have.

70 It was also submitted that the trial judge misdirected the jury when he told them that the ways in which they could use such evidence was (1) to draw inferences (against the accused) and (2) as impacting upon the complainant’s credibility when his Honour directed the jury that:

“If you are satisfied that the accused did harbour sexual feelings or passions for the complainant, that fact may well make more credible the complainant’s evidence that sexual activity took place on the occasion and in the circumstances of the particular charge you are considering.”

71 It was submitted that this last direction clearly misstated the probative value of the “relationship evidence” and caused an injustice to the accused. Ironically, it was submitted such a direction would have led the jury to commit the very error the trial judge had warned them about when he told them (at para [115] of the summing up):

“You cannot let any of the relationship evidence slip over and merge or blur the lines with the offences that you are dealing with.”

Consideration of the problem

72 The admission of evidence of a sexual relationship between a complainant and an accused other than evidence of the particular acts charged has caused difficulties in many cases. The origin of those problems lies in the difficulty which is sometimes experienced in categorising the purpose for which the evidence is tendered. Is it evidence tendered only for the purpose of throwing light upon the relationship at the time of the events which led to the offence (ie relationship evidence) or is it admitted as evidence of the sexual desire or feeling of the accused for the complainant (ie tendency evidence)? It is necessary to clearly identify the purpose of the tender so that its admissibility can be properly considered and appropriate directions given.

73 Evidence of a sexual relationship beyond the matters charged may have a powerful influence on a jury’s verdict. It will most likely reflect sexual desire in the accused for the complainant making it essential that the relevant provisions of the Evidence Act are identified and applied and appropriate directions are given in a manner which ensures there is no misunderstanding by the jury of the part the evidence can legitimately play. Because of its potential prejudice the risk of a trial miscarrying may be greater when the allegation relates to sexual acts involving children than sexual acts between adults.

74 In R v AH (1997) 42 NSWLR 702 this Court gave consideration to the relevant principles. Ireland J with whom Hunt CJ at CL expressed “complete concurrence” said at 708-9:

“Prior to the Evidence Act 1995 , and in R v Beserick (1993) 30 NSWLR 510 at 515 , this Court held, on the basis of respectable authority, that evidence of conduct with a sexual connotation between the complainant and the accused other than that which is the subject of the offence or offences charged is relevant in two different ways:

(a) the relationship revealed may place the evidence of the events which give rise to a particular charge into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated: B v The Queen (1992) 175 CLR 599 at 610 (see also at 602-603); and

(b) the guilty passion of the accused revealed — or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant — is directly relevant to proving that the offence charged was committed: R v Ball [1911] AC 47 at 71 ; see also Pfennig v The Queen (1995) 182 CLR 461 at 526 .

The evidence — once admissible for either or both of those purposes — will also necessarily make the complainant's evidence more credible in relation to the events upon which the charges were based.

R v Harvey

Evidence Act

Where the Crown does wish to use the evidence of guilty passion as tending to show that the accused did do the act in question (and thus that the complainant's evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with s 97 and s 101 before it may be used for that purpose.

Section 97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence: R v Lockyer (1996) 89 A Crim R 457 at 459 ; R v Lock (1997) 91 A Crim R 356 . In both Harriman v The Queen (1989) 167 CLR 590 at 597-599 and S v The Queen (1989) 168 CLR 266 at 275 , Dawson J has said that evidence of guilty passion, although evidence of propensity (or tendency as the Evidence Act calls it), has a sufficiently high degree of relevance as to justify its admission: see also B v The Queen (at 618), per Dawson J and Gaudron J . If the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that it is of significant probative value.

Pfennig

v The Queen

Pfennig

R v Lock

R v Foley

75 These general statements require careful consideration in the circumstances of a particular case and especially in sexual offence matters involving young children. In R v ATM [2000] NSWCCA 475 Howie J stressed the need for the trial judge to explain to the jury the purpose for which the evidence of uncharged acts was admitted and the use which the jury can make of it in its deliberations [75]. Howie J said at [76]-[77]:

.

R v Greenham

R v Beserick

R v Wickham

76 In Gipp v The Queen (1998) 194 CLR 106 the High Court considered the admissibility of evidence of sexual abuse by the appellant of the complainant other than the acts the subject of specific charges. Admitted as “relationship evidence” the jury had been instructed by the trial judge that there was no need for them to be satisfied beyond reasonable doubt of these background facts.

77 As it happens the High Court divided on the matter and the majority did not speak with a consistent voice. Accordingly, Gipp is not thought to provide a particularly useful discussion of the problem. The matter was addressed by this Court, comprising Mason P, Wood CJ at CL and Sperling J in R v Fraser (NSWCCA, unreported, 10 August 1998) when in a joint judgment, the Court said at [29]-[31]:

“In Gipp, where the High Court split three to two, divergent views were expressed as to the circumstances in which relationship evidence might be received, and as to the use to which it might be put. As the three separate majority judgments by Gaudron J, Kirby J and Callinan J have little common ground, it is difficult, if not impossible, to extract any clear ratio from the case. Gaudron J, expressed the view (at 19) that "general evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders it admissible as similar fact or propensity evidence". In the absence of a feature of the kind present in Ball, that made it directly relevant to the question of guilt, then it was admissible only to meet some subsidiary issue arising in the trial to which it was relevant, arising from the way in which the defence case is conducted, for example to explain lack of surprise or failure to complain.

Vonarx

B

Beserick, Wickham

AH

BL

Wilson

B

AH, Beserick

Wickham

B

78 As Callinan J said in Gipp there are the dangers in admitting evidence of criminal conduct not the subject of specific charges. His Honour said at 166 that:

“The dangers of admitting evidence of criminal conduct not the subject of specific charges are obvious. I am concerned also about the danger of admitting so called ‘background’ evidence. Its reception, and the need to explain its purpose and utility, have the tendency to introduce into a trial, particularly a criminal trial, undesirable complications, and the notion that there may be various lesser grades of evidence calling for different standards of satisfaction in the minds of the jurors.”

79 In BRS v The Queen (1997) 191 CLR 275 McHugh gave this warning (at 305):

Pfennig v The Queen

80 To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be -

· Identification of the evidence which the Crown seeks to tender and the purpose of its tender.

· If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH at 709.

· If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.

· If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.

81 The Supreme Court Bench Book contains a model direction with respect to relationship evidence which is to my mind the appropriate manner in which to instruct the jury. It states:

“It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into a true and realistic context. It is confined, in other words, to making the circumstances of the particular offences charged more intelligible.

Otherwise, a jury such as yourselves may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, a jury would be entitled to say to themselves, as persons of common sense, well, really, it is very odd for there to be such isolated acts between these persons.

the complainant

it is necessary, to explain this direction, by reference to the facts of the particular case].

However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as ‘context evidence.’

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

You must not substitute the evidence of the other acts for the evidence of the specific offences charged.

the complainant

he/she

this direction will require amplification

Where appropriate

the complainant

Evidence Act

see: s 165(2) Evidence Act

82 In the present case, the evidence of which complaint is now made was not the subject of objection at the trial. Perhaps it should have been. At the very least counsel and his Honour should have clearly identified the basis of the tender which, so it now seems, was confined to evidence establishing the nature of the relationship. That evidence of the relationship was relevant to the jury is made plain by defence counsel’s criticism of the complainant’s evidence in her address to the jury where counsel emphasised the lack of evidence of the complainant reporting the appellant’s conduct to her mother or any other responsible adult. However, whether evidence of other sexual activity was necessary or relevant to explain this matter or merely the explanation that her lack of complaint was motivated by fear of the consequences need not be determined. I am not entirely comfortable with the proposition that in order to explain a lack of complaint, evidence of other sexual activity will necessarily be relevant or that its probative value going to the issue of lack of complaint, outweighs the obvious prejudicial value. These matters need not be resolved in this case although they may require attention in other matters when evidence of this character is sought to be tendered.

83 The question which arises in this case is whether, having regard to the fact that the evidence was tendered merely for the purpose of providing the jury with the context in which the charged acts occurred and which would assist them in weighing her evidence, the directions given by the trial judge gave the jury clear guidance as to the appropriate principles. In my opinion they did not.

84 As I have indicated, at the conclusion of the complainant’s evidence the trial judge gave the jury directions in which he described the relevant evidence as “what lawyers call relationship evidence” referring to the uncharged sexual acts. His Honour then takes the jury to specific questions and the answers given by the complainant.

85 Problems then emerge as his Honour tells the jury that the evidence is capable of placing “the five offences charged … (in) a true and realistic context.” Although this statement is itself unexceptional particularly if there was an issue making the context relevant his Honour then says:

“The Crown says that if you take the global view of all the acts, you would find as a fact, that within the accused there was sexual feeling or passion for the complainant, that he was prepared to satisfy.”

86 Later, his Honour says:

“If you are satisfied that the accused harboured sexual feelings or passions for her, that fact may well make more credible or believable the complainant’s evidence of this specific five incidents that appear in the indictment.”

87 In both these statements his Honour raised the question of the appellant’s sexual desire for the complainant. By so doing his Honour has crossed the line between evidence of the context of the charged acts and evidence raising for consideration the propensity of the appellant to commit those acts. Before this was appropriate, the admission of the evidence as tendency evidence would have to be considered and appropriate and clear instructions given as to its use.

88 It is true that his Honour almost immediately proceeds to give the jury directions which confine the approach which the jury could take to the evidence in a manner consistent with authority. However, to my mind the damage has been done and although it may perhaps have been curable by withdrawal of the problem direction and giving of new directions this was not done.

89 The problem was exacerbated by the direction which the trial judge gave, without further explanation, that relationship evidence may be used to draw inferences (paragraph 123). He then tells the jury that relationship evidence may also be used to impact upon the complainant’s credibility (paragraph 124). Provided this is understood as relating to issues which might affect her credibility, lack of complaint, surprise or protest, which should be explained to the jury this statement is unexceptional. However, his Honour then directs the jury’s attention to the question of whether the appellant harboured “sexual feelings or passions for the complainant saying “that fact may well make more credible the complainant’s evidence that sexual activity took place on the occasion and in the circumstances of the particular charge that you are considering.”

90 As with his Honour’s earlier remarks by directing attention to the appellant and whether or not he harboured sexual feelings or passions for the complainant his Honour has crossed the line and invited the jury to consider the “relationship evidence” in coming to a conclusion as to the propensity of the appellant to commit the offence.

91 The difficulties are compounded in paragraph 125 where his Honour says that although relationship evidence cannot amount to evidence which directly proves an essential element of the offence it may be “taken into account in the two ways I have indicated.”

92 To my mind the problems in the series of directions are such that the convictions must be quashed.

4. The trial judge did not give a balanced summing up of the defence case and evidence which caused an injustice to the accused.

93 Having regard to my conclusion in relation to the trial judge’s directions with respect to “relationship” evidence it is unnecessary to consider further the appellant’s criticism of his Honour’s summing up.

Ground Two – The verdicts on counts two, three, four and five are unreasonable and cannot be supported.

1. The verdicts on counts two, three, four and five cannot be reconciled with the verdict on count one.

94 Count one charged that the appellant incited the complainant to commit an act of indecency towards him. That act was to touch her vagina. In fact the complainant never touched her vagina and says that “I knew he was going to do something bad” and she ran to the door and went to her mother. This count is of quite a different character to the other counts all of which involve physical contact between the appellant and the complainant.

95 Before the jury could convict the appellant on count one they would have to have been satisfied beyond reasonable doubt that the complainant had correctly interpreted the appellant’s actions and words. Both her immaturity and the fact that the act which he allegedly incited did not occur can rationally explain the jury’s acquittal of the appellant on this count.

96 With respect to counts two and three the appellant argued that because the complainant said that she was wearing “pull ups” at the time rather than underpants her recollection was incompatible with the fact that her mother said that she had stopped wearing “pull ups” in about mid 1997.

97 The offences were alleged to have been committed after December 1997. Accepting the inconsistency I am not persuaded that, as a consequence, the jury could not convict the appellant. A mistaken recollection as to the time at which the complainant ceased wearing “pull ups” would not preclude the jury from being satisfied, having regard to the complainant’s evidence, of the appellant’s guilt. In any event the evidence of the complainant’s mother was expressed in terms of estimates and the mother expressly indicated that she could not be definite about the timing of the toilet training of the complainant and her discarding “pull ups” for underpants.

98 In relation to count four the appellant argued that there are a number of problems associated with the evidence in relation to this count. It was submitted that the complainant’s evidence that the appellant continued to fondle the complainant’s vagina, notwithstanding the fact the grandmother was present, is inherently unlikely. Secondly, it is asserted that the complainant’s utterance to her father to “stop it” in a low voice could not sit comfortably with her claim to be fearful of him. Furthermore, it was submitted that the failure of the complainant to take the opportunity to complain to her grandmother does not sit comfortably with the allegation of sexual abuse.

99 Although these matters required careful consideration it fell for the jury to consider them together with the complainant’s evidence. As the Crown points out, the evidence was that the appellant used the cushion to disguise his actions from the complainant’s grandmother. Furthermore, there are reasons why a young child may be fearful of complaining about the actions of her father fearing repercussions within the family even though she is troubled by her father’s actions.

100 The appellant also criticises the complainant’s evidence in relation to count five, in particular her evidence that she watched the clock and was interfered with for twenty minutes. Again, this was a matter for the jury to evaluate.

101 Finally, it is submitted that there was no logical reason for her to wait until the appellant was overseas before she complained. For my part I do not find this surprising. A small child, afraid of complaining, may well identify the appellant’s absence from the country as an opportunity to raise matters about which she had been seriously troubled believing that she had less to fear from the appellant because of his absence overseas.

2. The very strong evidence showing the complainant’s motive to lie.

102 The appellant emphasised the evidence, both in chief and in cross-examination, of the complainant revealing her negative feelings towards the appellant. It is submitted that although the complainant denied that she made up the allegations because she wanted to punish her father (for being a bad father), this conclusion was not only clearly available from the evidence, but it is submitted it was the only rational conclusion particularly given her own evidence as to the reasons for these feelings. It is submitted that this conclusion is supported by the evidence from both the mother and the appellant as to the nature of their relationship and the lack of explanation by the mother to the complainant of the reasons for the child’s parents separating.

103 In the course of her cross-examination it was suggested to the complainant that she had fabricated her evidence. The exchange was as follows:

“Q. What I want to suggest to you B is that you made these things up, didn’t you?

A. No.

Q. What I want to suggest to you B is that you made these things up because you wanted to punish your dad didn’t you?

A. No, I love my dad, all I ever wanted was a dad.

Q. But you thought that you dad hadn’t been a good father to you didn’t you?

A. Yes, that was when I got a little bit older but before that I thought like he had been a good father to me. It was only when I got older and realised all of this stuff that – then I realised it.”

104 It was for the jury to evaluate the complainant’s evidence. Although it is conceivable that the complainant was determined to punish the appellant because she believed he was an inadequate father this was a matter for the jury.

3. The demonstrated unreliability of the complainant’s evidence in relation to significant matters

105 The appellant’s submission is that the complainant’s evidence was unreliable in several significant matters. This included her initial insistence that it was the appellant that used to bite her on the cheek which then became a concession that it was both the boy and the appellant who used to bite her. This, it is submitted was inconsistent with both the mother’s and the appellant’s evidence. It is submitted that the complainant’s insistence that her father did bite her was even more implausible given her evidence that she did not know (because she never checked) whether his bites had left marks, whereas the boy’s had left marks for days, and that she never told her mother about her father’s biting because he used to threaten her about other matters.

106 The appellant also identified the complainant’s insistence that the accused had an angry expression on his face most of the time as being very implausible. There were a number of other matters including the fact that the complainant’s evidence-in-chief was that the reason she did not like conditioner being put through her hair was because it reminded her of “dad’s slime.” However it is submitted that she agreed, under cross-examination, that the reason she did not like this, was because it reminded her of the nits treatment put through her hair by her mother in 2001.

107 To my mind these were all matters for evaluation by the jury. Neither alone or collectively could they justify a conclusion that the jury’s verdict was unreasonable.

4 The evidence inconsistent with any sexual assault of the complainant by the accused eg the complainant inviting the accused to Bali; the complainant’s demeanour as seen on her video statements; the strong evidence of the appellant’s good character.

108 Under this ground the appellant emphasised that the inconsistency between the complainant’s evidence and other Crown evidence needs to be considered with other evidence allegedly inconsistent with any sexual misconduct by the accused. This included the complainant’s conduct in inviting the accused on the trip to Bali in July 2001 during which trip there was no suggestion of untoward conduct by the appellant, the giving of a gift list by the complainant to the appellant before he went to the United States in late 2002 and a lack of any indication of difficulties in the complainant’s school reports. The appellant also draws attention to the continued failure to complain to the mother and grandmother and the evidence from the appellant’s other daughter that the appellant had never behaved improperly with her.

109 As with the other matters these questions were all matters for consideration by the jury. Neither alone nor together do they provide any foundation for a finding that the jury’s verdict was unreasonable.

Orders

110 I propose that the appeal be allowed, the convictions and sentences quashed and that there be a retrial.

111 HOWIE J: I have had the benefit of reading the judgment of the Chief Judge in draft. I agree with the orders he proposes for the reasons given by him. I wish to make some brief observations in respect of Ground 3 that deals with the directions on relationship evidence.

112 It seems to me that one of the problems that arises in respect of “relationship evidence”, particularly in child sexual assault cases, is that there is never a clear understanding of what that term means in any given case. As I sought to explain in R v ATM [2000] NSWCCA 475, evidence does not necessarily become admissible merely because it is said to disclose the relationship of the accused and the complainant: it must also be relevant and must not be unfairly prejudicial. Unless the relevance of the evidence is understood at the outset and kept in mind throughout the trial, and particularly during the summing up, there is a real risk that the jury will be misdirected as to how they are to use the evidence.

113 In the present case, with respect, the directions were confusing not the least because the Judge used the term “relationship evidence” to cover a number of aspects of the evidence. For example, at one stage he referred to the fact that the complainant’s mother was her sole carer as being relationship evidence. He also described what the complainant said about the hair conditioner as being relationship evidence.

114 Relationship evidence in its traditional sense is evidence that places the acts of the accused in context. So in Wilson v The Queen (1970) 123 CLR 334 the relationship between the accused and his wife was a relevant matter in determining whether the husband shot the wife or whether the weapon accidentally discharged. As Barwick CJ wrote at 337:

115 Relationship evidence which is relevant in this way is admissible under the Evidence Act and is not subject to the operation of the tendency rule because the evidence is not being admitted to prove a propensity or tendency on the part of the accused to do the act charged: R v Serratore (1999) 48 NSWLR 101.

116 So in child sexual assault cases evidence of the relationship between the accused and the complainant is admissible to give context to the particular allegations made by the complainant that form the basis of the charges in the indictment. Of course in cases of child sexual assault the evidence will be of a different character than might be the case in other types of offences. This is because of the secretive nature of child sexual assault offences and because they are frequently part of a continuing course of conduct by the accused toward the complainant. But in principle there is no difference between the purpose for which the evidence is admitted in child sexual offence trials and trials of other offences where the relationship between the accused and some other person is a relevant matter. It is admitted not to prove that the accused had any particular propensity or disposition towards the complainant but to put the particular allegations in the context of the whole of the relationship as described by the complainant.

117 Context evidence in child sexual assault offences will normally come from the complainant because it is part of the narrative or the history of events surrounding the particular allegations in the counts set out in the indictment. Its relevance will only be found in the extent to which it does provide an understanding of the particular allegations before the jury. Where the complainant is alleging a history of assaults upon him or her by the accused, the evidence, or some of it, may need to be admitted because it would be impossible for the complainant to give an account of the particular allegations without referring to uncharged allegations that proceed or surround them. It would often be unrealistic for the complainant to be expected to give an account of the particular allegations as if they happened “in a vacuum”.

118 On the other hand evidence of the relationship between the accused and the complainant that is admitted for the purposes of showing that the accused had a tendency or propensity to have sexual relations with the complainant will almost never be found in the complainant’s account of his or her relationship with the accused. That is because the complainant’s account of the relationship would rarely have sufficient probative value to overcome the precondition of admissibility for tendency evidence in s 97 and s 101. It is presumably the lack of sufficient probative value of the complainant’s evidence to prove a tendency on the part of the accused that led McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106 at [76] to require that evidence of the complainant to be used for this purpose to be proved beyond reasonable doubt. Tendency evidence generally does not have to be proved to that standard. Evidence of the accused’s sexual interest in the complainant will usually be found outside of the complainant’s evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally.

119 Both context evidence and tendency evidence can bolster the credibility of the complainant but they do so in different ways. Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant’s version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable. But other than generally assisting the complainant’s credibility in this way, context evidence does not make the complainant’s account more reliable than it would be in the absence of that evidence. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment.

120 Tendency evidence on the other hand is direct evidence relevant to the commission of the offence charged. If accepted by the jury, it makes it more likely that the offence charged was committed by the accused. It bolsters the complainant’s credibility because her version is more likely to be true if the accused has a tendency to behave in the way she alleges he did on specific occasions.

121 It is clear that the trial Judge in the present case confused the relevance of context evidence with tendency evidence when he directed the jury that they could find that the relationship evidence showed that “within the accused there was sexual feeling or passion for the complainant that he was prepared to satisfy”. As I have noted, context evidence says nothing about the accused at all. It is not led to prove anything, let alone a propensity or characteristic of the accused. Similarly the Judge was in error in directing the jury that they could draw inferences from the relationship evidence. Context evidence may allow the jury to infer some aspect of the complainant’s conduct but it does not give rise to any inference about the accused’s conduct.

122 The Judge should have made it clear to the jury the limited role that the relationship evidence had to play. I believe that it is preferable to refer to this type of evidence as “context evidence” during the summing up as the direction in the Bench Book does and not refer to it as relationship evidence. Rather than tell the jury that the evidence could show that the accused had a sexual feeling or passion for the complainant, the Judge should have warned them against drawing such an inference. He should have directed them that the evidence could not be used to show that it was more likely that the accused committed the offences charged against him.

123 The directions on relationship evidence by introducing the issue of the accused’s sexual interest in the complainant resulted in miscarriage of justice. It is most unfortunate that neither counsel raised this matter with the Judge as the directions were so obviously erroneous.

124 LATHAM J: I agree with McClellan CJ at CL and I agree with the observations of Howie J.

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06/03/2008 - address of complainant - Paragraph(s) 4

Citations

Qualtieri v R [2006] NSWCCA 95

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Cases Citing This Decision

69

Tully v The Queen [2006] HCATrans 343

MM v The Queen [2012] ACTCA 44

Cases Cited

17

Statutory Material Cited

2

R v Dann [2000] NSWCCA 185

R v RTB [2002] NSWCCA 104

R v Skaf [2004] NSWCCA 74

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CITATION:	QUALTIERI v REGINA [2006] NSWCCA 95 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 January 2006
JUDGMENT DATE:	4 April 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Howie J at 111; Latham J at 124
DECISION:	1. Appeal allowed; 2. Convictions and sentences quashed; 3. Retrial ordered
CATCHWORDS:	CRIMINAL LAW – appeal against conviction – sexual offences – person under the age of ten years – assault – acts of indecency – sexual intercourse – whether erroneous admission of evidence – whether miscarriage of justice occurred – probative value – unfair prejudice – erroneous directions – rule 4 – whether prejudice resulting from not being able to cross-examine – evidence of uncharged incidents – relationship evidence – context evidence – tendency evidence – propensity evidence – guilty passion – unreasonable verdicts – motive to lie – unreliability – inconsistency
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	BRS v The Queen (1997) 191 CLR 275 Gipp v The Queen (1998) 194 CLR 106 R v AH (1997) 42 NSWLR 702 R v ATM [2000] NSWCCA 475 R v Dann [2000] NSWCCA 185 R v Fletcher [2005] NSWCCA 338 R v Fraser (NSWCCA unreported 10 August 1998) R v Guildford (2004) 148 A Crim R 558 R v RTB [2002] NSWCCA 104 R v Skaf (2004) NSWCCA 74
PARTIES:	Rocco Qualtieri (Appl) The Crown
FILE NUMBER(S):	CCA 2005/1859
COUNSEL:	P Boulten SC ( Appl) D Frearson SC (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1177
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ
LOWER COURT DATE OF DECISION:	26/01/2006