R v ATM

[2000] NSWCCA 475

CITATION:	Regina v ATM [2000] NSWCCA 475 revised - 24/11/2000
FILE NUMBER(S):	CCA 060184/00
HEARING DATE(S):	20 November 2000
JUDGMENT DATE:	24 November 2000
PARTIES :	Regina v ATM
JUDGMENT OF:	Sully J at 1; Whealy J at 2; Howie J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/3116
LOWER COURT JUDICIAL OFFICER :	Mitchelmore ADCJ

COUNSEL :	R.J. Button (Appellant) W.G. Dawe QC (Crown)
SOLICITORS:	Kremmer Townsend (Appellant) S.E. O'Connor (Crown)
CATCHWORDS:	Appeal after convictions - convictions unreasonable and unable to be supported - Summing up - directions and warnings on relationship evidence
LEGISLATION CITED:	Evidence Act 1995 - ss 38, 97, 101
CASES CITED:	Jones v the Queen (1989) 166 CLR 409 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 R v Milat (SC(NSW) Hunt CJ at CL, unreported, 23/4/96) R v Adam (1999) 47 NSWLR 267 R v A.N. [2000] NSWCCA 372 Gipp v The Queen (1998) 194 CLR 106 R v A.H. (1997) 42 NSWLR 702 R v Beserick (1993) 30 NSWLR 510 R v Fraser (NSW Court of Criminal Appeal, unreported, 10/8/98) R v Greenham [1999] NSWCCA 8 BRS v The Queen (1997) 191 CLR 275 R v R.N.S. [1999] NSWCCA 122 R v Wickham (NSW Court of Criminal Appeal, unreported, 17/12/91) R v Tripodina (1988) 35 A Crim R 183 R v Marsh [2000] NSWCCA 370
DECISION:	Appeal allowed. Convictions quashed. Verdicts of acquittal entered on each count.

IN THE COURT OF
CRIMINAL APPEAL

060184/00

SULLY J

WHEALY J
HOWIE J

FRIDAY 24 November 2000

REGINA v A.T.M.


JUDGMENT

1    SULLY J: I agree with Howie J.

2    WHEALY J: I agree with the reasons of Howie J and the orders that he proposes.

3    HOWIE J: This is an appeal against conviction on two charges of child sexual assault after trial by jury in the District Court. There are two grounds of appeal. The first is that the verdicts are unreasonable and unable to be supported. The second is that the trial judge failed adequately to direct the jury with regard to relationship evidence.

4    Following his conviction, the appellant was sentenced in respect of each count on the indictment to a minimum term of 2 years imprisonment and an additional term of 2 years imprisonment. There is no appeal against sentence.

5 The appellant was arraigned on an indictment containing two counts of having sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act. The first charge alleged an offence committed between 1 February 1989 and 30 July 1989 at Cabramatta. The second charge alleged an offence committed between 24 February 1990 and 15 December 1990 at Carlton.

6    The complainant in respect of each charge was the same. She was the stepdaughter of the appellant. She was born on 10 October 1982 in The Philippines and was aged 17 years at the time of the trial. Her natural father died on 10 April 1984. The complainant’s mother married the appellant in The Philippines and the family immigrated to Australia on 20 March 1988.

The Crown case

7    The complainant gave evidence that on an occasion when the family was living in a townhouse in Cabramatta her mother went into hospital for day-surgery. She did not recall the year but she thought that she was in Year 1 at school. There was evidence that the complainant’s mother went into hospital twice in 1989, on 13 February and 22 March.

8    The complainant said that her father picked her up from school and took her home. She went to her bedroom but a short time later the appellant called her to come into her parent’s bedroom. When she went into the room, he produced a pornographic magazine and showed her photographs of a man and woman having sex in various positions. The appellant told her that this is what persons did and it was normal for everyone to do it.

9    At the time the complainant and the appellant were sitting on the bed. The appellant laid the complainant down and lowered her joggers and underpants. He kissed her on the vagina and then put his finger inside her. She said that at first his finger was on the outside of her vagina and he kept on going down and put it inside. He pushed his finger in and out. She told him that it hurt her and she tried to squeeze her legs together. The appellant did not leave his finger there long, because he then unzipped his pants, took out his penis and masturbated himself to ejaculation. The appellant then told the complainant to go back to her room and he left home to pick up her mother from the hospital. The act of digital penetration of the complainant’s vagina gave rise to the first count in the indictment.

10    The complainant gave evidence that this type of conduct occurred every few days after school. On one occasion her mother was downstairs in the kitchen.

11    On an occasion when the family was living at Carlton the complainant’s mother went on a trip to The Philippines. The complainant could not say what year this was, how old she was, or in what season of the year it occurred. She said that, after she and her father returned from seeing her mother off at the airport, the appellant called her into his bedroom. When she entered the room, the appellant was watching a video of people having sex.

12    The appellant told her to sit on the bed and he removed her skirt, blouse and underpants. He then started kissing her vagina. He told her that his penis was called Mickey Mouse and the complainant’s vagina was called Minnie Mouse. The appellant said that he would try and put Mickey Mouse into Minnie Mouse. The appellant rubbed vaseline onto his penis and told the complainant that this was so it would not hurt as much. The appellant then got on top of her, put his legs between hers, and inserted his penis into her vagina. The complainant asked him to stop because it was hurting but he did not do so until he had finished. After he removed his penis he told her she was a good girl and she should have a shower. This was the first occasion that he penetrated her with his penis. This act of sexual intercourse gave rise to the second count in the indictment.

13    The complainant said that after this occasion the accused had sexual intercourse with her at least three times a week while her mother was overseas. When her mother returned, it continued but not with the same frequency.

14    The complaint was able to establish from school photographs that the incident which gave rise to the second count in the indictment occurred in 1990. She said that around the time of this incident the appellant gave her some blue ribbon that she used to wear in her hair. She was able to identify the ribbon in a school photograph for the year 1990. There was evidence that the complainant’s mother had flown out of Sydney on three occasions in 1990.

15    Evidence was given by the complainant of a history of sexual misconduct by the accused toward her commencing when she was aged four years and living in The Philippines and continuing until September 1992. She gave details of acts of digital penetration that took place in the appellant’s motor vehicle after the family first arrived in Australia.

16    In September 1992, when the complainant was having a bath, her mother became concerned at the appearance of the complainant’s genitalia. She believed that the clitoris appeared to be enlarged. She questioned the complainant about her concerns over the next few days and eventually the complainant told her that the appellant tried to place his penis in her vagina. The complainant said in evidence that she did not tell her mother that there was actual penetration because she was embarrassed.

17    On 12 September the complainant’s mother took her to see Dr Amin, a local general practitioner. She examined the complainant and found the hymen intact and no evidence of bruising. She advised the complainant’s mother to contact the Children’s Hospital and directed her to the Department of Community Services.

18    After returning home from seeing the doctor, the complainant’s mother confronted the appellant. She told him that she wanted to talk to him about the complainant and informed him that she had taken her to the doctor. The appellant immediately left the house without saying anything. A short time later he returned and there was an argument during which the complainant’s mother told the appellant that she was leaving.

19    The next day there was another argument between the two of them during which the appellant said, “Well (s)he’s not an angel. You think that I can do this by my own?” The appellant also said, “I admit that I only look at her Minnie Mouse”. When asked what he meant by that, the appellant said that he asked the complainant to lie down, took off her panties and he looked because he wanted to know if something was wrong.

20    The complainant and her mother moved out of the family home and went to stay with another daughter. There was contact with an officer from the Department of Community Services but it ceased when the complainant’s mother said that they were going to move to Melbourne. This was untrue and they remained in Sydney. The matter was not reported to the police.

21    The appellant and the complainant’s mother continued to maintain contact and in 1995 she returned with the complainant to live with him. The complainant’s mother gave evidence that the appellant apologised and promised to be a good father. She asked him whether he had sex with the complainant but he refused to discuss the matter.

22    In early 1998 there was an argument between the complainant and the appellant and as a result the police were contacted. The complainant then raised allegations of sexual misconduct by the appellant. The complainant initially told police that the incident, which gave rise to the second count in the indictment, occurred in 1992. However, on 3 February 2000, just two weeks before the commencement of the trial, the complainant made a statement in which she said that this incident took place in 1990.

23    On 15 May 1998 the appellant was charged with two offences of sexual assault. On advice of a solicitor, he exercised his right to silence. On 27 August 1998 the accused was arraigned in the District Court at Campbelltown and pleaded not guilty. A trial date was fixed for 9 December 1998. On 3 September 1998 the appellant flew out of Australia for The Philippines in breach of his bail conditions. A warrant was issued for his arrest, but on 28 August 1999 the appellant voluntarily returned to Australia. He was arrested on his arrival and remanded in custody to await his trial. The Crown relied upon his failure to appear at his trial as evidence of flight.

Defence case

24    The appellant gave evidence at the trial denying any sexual conduct by him with the complainant. He denied the conversations attributed to him by his wife before she left him in 1992. He also denied that he had ever apologised to her in 1995 before they were reunited.

25    He said that he went to The Philippines in breach of his bail after reading the full brief of evidence and learning of the extent of the allegations against him. He discussed it with his wife and she said that they should go back to The Philippines and start their life again. He travelled to The Philippines in company with his wife and they lived together while they were both in that country. He said that he returned to Australia to give himself up because he was not guilty.

26    Evidence was given by the police officer in the Crown case that the accused, who was aged 67 years, had no prior criminal convictions recorded against him.

Ground 1

27    This ground is that the verdicts of the jury are unreasonable and cannot be supported. If the appellant succeeded on this ground, he would be entitled to have the convictions quashed and verdicts of acquittal entered. Therefore, it is appropriate to determine this ground before considering the second ground which, if successful, would usually result in the quashing of the convictions but the ordering of a retrial: Jones v The Queen (1989) 166 CLR 409.

28    This ground of appeal requires the court to review and assess the evidence at the trial in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant, bearing in mind that the jury is the body entrusted with the primary responsibility to determine guilt and innocence, and the advantage of the jury in having seen and heard the witnesses give evidence before them: Jones v The Queen (1997) 191 CLR 439 at 451. This court is required to set aside a conviction if there is a significant possibility that an innocent person has been convicted: M v The Queen (1994) 181 CLR 487 at 508.

29    There are a number of, what are said to be, unsatisfactory aspects in the evidence in the Crown case that are relied upon to support this ground. It was conceded by counsel for the appellant on the hearing of the appeal that, if each of the matters were considered separately, this Court would be unlikely to uphold this ground of the appeal. However, it was argued that the combined effect of the issues raised would lead the Court to the conclusion that it was not open to the jury to convict the accused on either count in the indictment.

30    It should be noted that, although the trial judge warned the jury that “it is unsafe in the circumstances of this case to convict on the evidence of [the complainant] who stands alone as proof of the Crown case”, the complainant’s evidence was not unsupported as is so often the case in allegations of this nature. There was evidence, which it was open to the jury to accept, that the accused had made statements to his wife that acknowledged some impropriety on his part toward the complainant. These were both what he said to her when she first raised the allegation before they separated in 1992 and the apology that induced her to return with the complainant in 1995. Further the jury were entitled to consider the failure of the accused to attend his trial and travelling to The Philippines in breach of his bail.

31    The first aspect of the evidence relied upon is the change of the date of the second count. It will be recalled that in February 2000, shortly before the trial, the complainant made a statement to police indicating that the date of the incident on which she was first penetrated by the appellant’s penis was in 1990 rather than 1992 as she had maintained up until that time. As a result of this information, the Crown changed the date of the second count in the indictment before the appellant was arraigned.

32    Counsel for the appellant has stressed that this change was necessary because, had the date on the charge remained as 1992, the complainant could not have been telling the truth as to the circumstances giving rise to the second count on the indictment. The complainant maintained that the offence occurred after she and the appellant had farewelled her mother at the airport, yet on each of the overseas trips her mother undertook in 1992 she had been accompanied by the appellant. The complainant denied that she had been made aware of this fact before making her February 2000 statement. The police officer in charge of the investigation denied that the statement had come about by reason of any information that she had received about the appellant accompanying his wife overseas in 1992.

33    The complainant explained in her evidence that she had realised her mistake as to the year of this incident after seeing a photograph of herself taken at school in 1990. She said that she was wearing the ribbon her father gave her around about the time of the first act of penile penetration. She said that she did not wear the ribbon again because her hair was cut shorter in 1991. School photographs were placed before the jury for the years 1990, 1991 and 1992. The police officer gave evidence that the complainant’s mother had supplied these photographs to police in January 2000 as a result of a request from the prosecution solicitor.

34    Counsel for the appellant conceded that, if the only issue had been the change of date occurring in a statement made to police in 1998, six years after the incident, a jury would have been entitled to accept the explanation proffered by the complainant. But counsel relied upon the fact that the complaint made by the complainant in September 1992 to her mother and then, apparently, to an officer from the Department of Community Services indicated that the incident of sexual assault occurred in April or May of that year. It was submitted that the complainant must have known in 1992 whether the first act of penile penetration occurred earlier that year or some two and a half years before.

35    The evidence of what the complainant had said in September 1992 about any sexual assault upon her by the appellant was unsatisfactory in that it was confusing and conflicting. Her mother gave an account of what she was told by the complainant after she questioned her about the appearance of her genitals. That account did not mention when it was that any misconduct by the appellant had occurred or whether there was one or more acts of sexual misbehaviour.

36    However, there was evidence of the account given by the complainant’s mother to Dr Amin when she examined the complainant. The clinical notes taken by the doctor record that she was told that a sexual approach had occurred by the appellant to the complainant in April of that year when the complainant’s mother was in The Philippines. The complainant’s mother, however, denied that she told Dr Amin that the incident complained of occurred in April of that year.

37    Records of an officer from the Department of Community Services of conversations in September 1992 with the complainant’s mother and the complainant, which were tendered before the jury and to which more detailed reference is made below, indicate that sexual misconduct by the appellant occurred in April or May of 1992. Both the complainant and her mother denied that the officer had been told that the incident occurred in that period of time.

38    Records in evidence showed that the complainant’s mother was absent from Australia between 1 February and 10 April 1992 and again between 28 July and 9 September 1992.

39    Although it is not clear that in September 1992 the complainant was asserting that the first and only time she had been sexually assaulted by the appellant was on an occasion in April 1992 when her mother was overseas, any version of the complaint made in 1992 sits uncomfortably with the evidence of the complainant at the trial that the accused first penetrated her with his penis in 1990 and that sexual misconduct of some form continued up to a date within days of the incident when her mother spoke to her while she was having a bath.

40    The next matter raised is what is asserted to be an inconsistency between what the complainant said in evidence about allegations of sexual conduct by the accused toward her shortly after the family had come to Australia to live and what she said about the same incidents in a statement to police in May 1998. This conduct was part of the evidence of uncharged acts relied upon to disclose the relationship between the complainant and the appellant. In evidence before the jury the complainant said that the appellant had inserted his finger into her vagina whereas in her statement to police she said that he rubbed his finger “around my vagina not in”.

41    The complainant explained what she had meant in her evidence and in the statement about where the appellant had touched her. Although on the face of it there might be some inconsistency in what she has said about these assaults upon her, the matter was peripheral to the charges before the jury. The complainant was recounting incidents said to have occurred in 1989 when she was aged 7 years. It does not seem to me to have been a matter of such significance that it ought to have led to the jury doubting her reliability whether taken by itself or in conjunction with the other matters raised under this ground of appeal.

42    The third matter relates to a record of the content of a conversation which occurred between the complainant and an officer from the Department of Community Services in September 1992 after the complainant had been examined by Dr Amin. The officer was not called to give evidence but records apparently made by her were tendered by consent. The material tendered appears to be part of the official records maintained by the officer in her function to receive and investigate notifications of child sexual assault.

43    The complainant said that she saw the officer on one occasion and, although the officer asked her questions about her father, the complainant did not want to talk about what happened. She said she remembered telling the officer “like when dad touched me” but denied giving her any details of the assault.

44    The notes purport to set out the content of a conversation between the officer and the complainant on 26 September 1992. It is as follows:

I then spoke with [the complainant], [the complainant’s mother] was present while the interview took place. After engaging with [the complainant] I asked her about the incident of abuse with her step-father.
[The complainant] then went on to tell me that the incident occurred while her mother was in the Philippines, this was back in April/May of this year. [The complainant] said that she often watched TV in her mum and dad’s room on their bed, one day she came out of the shower, she said that she only had a towel on and was lying on the bed. Her father came into the bedroom and lay on the bed then [the complainant] said that he kissed her ‘flower”, [the complainant] refers to her vagina as her flower. She said that he then put his finger inside her “flower”. [The complainant] said that he tried to put his “pilly willy” inside her, she was referring to his penis. But she said that it hurt and she got off the bed and ran away from him. [The complainant] said that he chased her around the house and said that he won’t hurt her, he’ll “only put the head in”. [The complainant] was not sure if he penetrated her completely. [The complainant] said that “when he was finished, he held his ‘pilly willy’ with a hanky and cream came out of the end of it”.

45    The complainant denied that she gave this version of events to the officer. She denied that she had ever used the terms contained in the report to refer to her vagina or the appellant’s penis. She also denied telling the officer that an incident occurred in April or May of that year.

46    The complainant’s mother maintained that she had given all information to the officer about the incident and that there was only brief general conversation between the officer and her daughter. She denied giving the officer the account set out above.

47    There was also in evidence a record made by the same officer of what she had been told on 14 September 1992 by the complainant’s mother about the complainant’s disclosure to her of sexual misconduct by the appellant. This material again appears to be part of the official record made of a notification of child sexual assault received by the officer from the complainant’s mother. The account is as follows:

Mother stated that [the complainant] disclosed that her step-father had sexually abused her earlier this year. Disclosure was promoted by the Hinch programme. Specifically [the complainant] said that on more than one occasion her step-father had put his penis in her vagina and ejaculated into a hankie after penetration. When child complained that it hurt her he replied that “he was only putting the head in”. Child told mother that he had “kissed her vagina and put his finger inside her”. He had also fondled her breasts.
Mother said that the incident occurred in April or May of this year.

48    Both the complainant and her mother denied that the complaint of sexual misconduct arose after watching a current affairs television programme. The complainant’s mother denied that she had told the officer that the complaint arose in this way or that she had told the officer that the appellant had fondled the complainant’s breasts. The complainant’s mother denied that she had told the officer that the incident occurred in April or May of that year. It should be noted that the officer also recorded that in a conversation with the complainant’s mother on 26 September 1992 the mother had confirmed that the disclosure by the complainant followed the screening of a Hinch programme on television.

49    A major difficulty with this area of the evidence is that the Crown did not call the officer at the trial and there is no suggestion in the trial transcript that the absence of the witness was explained in any way. On its face there is reliable evidence of statements made by the complainant and her mother in September 1992 which are inconsistent with accounts given by them at the trial. The material contained in the reports raises questions about the reliability of the complainant and the mother both generally and in respect of any complaint made in 1992 about sexual misconduct by the appellant.

50    The next issue raised in respect of this ground of appeal is the evidence concerning the medical examination of the complainant by Dr Amin on 12 September 1992. It will be recalled that the doctor examined the complainant’s genitalia but found no evidence of bruising and that the hymen was intact. It is submitted on behalf of the appellant that this evidence was inconsistent with the complainant’s account of repeated acts of digital or penile penetration over a period of 3 years immediately before the examination.

51    As would be expected, Dr Amin had no detailed recollection of the examination of the complainant and relied upon her clinical notes. She had taken a history indicating sexual conduct in April 1992 but that there was no penetration. The doctor indicated that her usual practice in conducting such an examination was to separate the labia and look at the hymen. Usually the patient would lie down with her knees drawn up, bent and separated. She said that she had experience in conducting gynaecological examinations. She had made a note that the vagina appeared normal.

52    The Crown called Dr Marks a medical practitioner with a post-graduate degree in paediatrics and who was employed in the Child Protection Unit at the Children’s Hospital at Westmead. She had not spoken to Dr Amin but had examined her notes and the various statements made by the complainant to police. Her evidence was to the effect that it was necessary that a medical practitioner should be specially trained in examining the genitalia of young children in order to conduct a reliable examination of the vaginal area and the hymen of a nine year old child.

53    Dr Marks also gave evidence that she had experienced cases where there had been a mistaken interpretation made of the state of a child’s hymen and explained how that might occur. She also gave evidence of studies where, although there were admissions made by an offender of penetration of a child’s vagina, a medical examination of the child revealed no abnormality. She explained that these findings may be a result of healing of the hymen. It was her opinion that the findings reported by Dr Amin were not necessarily inconsistent with the history given by the complainant of repeated penetration of her hymen.

54    One of the difficulties with this area of the evidence was that, because Dr Amin was called by the Crown and as the defence did not wish to undermine her evidence, her expertise and the reliability of her examination were never called into question except indirectly by the evidence of Dr Marks. Yet Dr Marks had never spoken to Dr Amin about her examination of the complainant or the course she normally followed when examining the genitalia of a young child. Nor was it ever suggested to Dr Amin during her evidence that she was inexperienced in examining the sexual organs of young children or that she may have been mistaken in what she thought was the complainant’s hymen, or that there may have been damage which she did not observe or note.

55    At the very least it seems to me to have been unfair to Dr Amin that the jury might have been left to consider her evidence on the basis that it may have been unreliable when this was never suggested to Dr Amin and she was never given the opportunity to answer the attack upon her evidence, which at least must have been implied by the Crown calling Dr Marks. There were no directions in the summing up as to how the jury should approach this evidence except by the judge summarising the submissions made by both counsel.

56 Perhaps the answer to what I consider to be the unsatisfactory nature of this part of the evidence was for the Crown to have sought leave to treat Dr Amin as an unfavourable witness and tested her evidence under s 38 of the Evidence Act. In R v Milat (SC(NSW) Hunt CJ at CL, unreported, 23 April 1996) it was held that the section could be applied where a witness was called by the Crown to permit cross-examination by the defence. Here the Crown was calling the evidence under its duty to put all relevant material before the jury. I note that the operation of the section is under consideration by the High Court which granted special leave to appeal from the decision of this Court in R v Adam (1999) 47 NSWLR 267.

57    By itself the evidence of Dr Amin was not decisive. It was open to the jury to consider the evidence of the findings of Dr Amin in light of the evidence of Dr Marks and conclude that the results of Dr Amin’s examination of the complainant were not so inconsistent with the complainant’s version that the complainant could not be telling the truth. But in light of the complainant’s evidence of repeated acts of penetration over a number of years leading up to the medical examination in September 1992, the evidence of Dr Amin hardly inspires confidence in the reliability of the complainant’s evidence.

58 The next issue was that the complainant had been shown to be untruthful because she admitted to having forged the signature of her mother and her father on notes excusing her attendance at school in 1998. In my opinion this material has such little probative value that, if objection had been taken by the Crown, it should have been rejected by the application of the credibility rule under s 102 of the Evidence Act. It does not have any bearing upon my consideration of whether it was open to the jury to convict the appellant.

59    The final matter raised in support of the ground was that the appellant could rely upon good character. While it is relevant it is, of course, not determinative of the outcome of this ground of appeal.

60    After anxious consideration, I am of the view that this ground has been made out. I am particularly concerned about the reliability of both the complainant and her mother in light of the records of the officer of the Department of Community Services. In the absence of the witness being called, there is no reason why the material should not be accepted as an honest and accurate account of what the officer was told by the complainant and her mother. If that is so, I can find no rational explanation to account for the inconsistency in the version of the complainant recorded by the officer and that given before the jury. None could be offered by senior counsel for the Crown on the hearing of the appeal. The summary of the submissions of the Crown at the trial contained in the judge’s summing up makes no reference to this material and it appears that the Crown simply ignored it.

61    While the evidence of the complainant’s mother might on its face have supported the evidence of the complainant in respect to statements attributed by her to the accused, her credibility was significantly undermined during the trial. Her account of contact with the officer from the Department of Community Services was inconsistent with the records of the Department. Her version of what she was told by the complainant was also inconsistent with the clinical notes of Dr Amin. The complainant’s mother was also unconvincing, to say the least, in her account of how the accused came to travel with her in an adjoining seat on the flight to The Philippines after he absconded on bail.

62    I believe there is merit in the submission made on behalf of the appellant that, when the late change in the date of the second count, the evidence of Dr Amin and the records of the Department of Community Service are considered in combination, a real doubt arises as to the reliability of the complainant and her mother. Notwithstanding the advantage of the jury in seeing these witnesses give evidence before them, I am satisfied that the jury ought to have had a reasonable doubt about the Crown’s case and should have acquitted the appellant on each count in the indictment.

63    In my opinion the first ground succeeds. The convictions should be quashed and verdict of acquittal entered on each count in the indictment.

Ground 2

64    In light of the appellant’s success on the first ground of appeal, it is strictly unnecessary to consider the second ground. However the matter raised by it is of sufficient general importance that the ground of appeal should be considered on its merits.

65    Complaint is made before this Court that the trial judge failed adequately to instruct the jury with regard to relationship evidence, that is evidence given by the complainant of other incidents of sexual misconduct committed against her by the accused in addition to the two particular incidents which gave rise to the charges in the indictment. No such complaint was raised by the experienced counsel who appeared for the appellant at the trial. Therefore, leave is required under Rule 4 for the appellant to rely upon this ground.

66    Evidence was given by the complainant, without objection, of other allegations of indecent acts committed upon her by the appellant. These further allegations were of both a general and specific nature. They related to incidents which the complainant said had occurred since she was aged four when she was in the Philippines before coming to Australia. The allegations included sexual misconduct occurring between the two occasions which gave rise to the charges in the indictment, and acts after the second of the charged sexual assaults. The complainant gave evidence that the appellant continued to have sexual intercourse with her up until days before the occasion in 1992 when she was having a bath and her mother spoke to her about the appearance of her vagina.

67    In opening the case to the jury the Crown Prosecutor said:

In this case you will see that apart from these two charges I’ve mentioned other particular matters, other allegations against this accused. Going back to the Philippines and when she was four. You should understand that they are not charges that are before the Court. They, you will hear, are generally non specific matters but they’re placed before you to put the relationship that existed between this particular complainant and the accused in some sort of context. They are placed before you, give you a better understanding of how it is these incidents were able to occur. That is the first one starting around between February and July of 1989, before you and the one between 24 February and 15 December 1990, which is the count two. So it’s to place those matters within some context.

68    After defence counsel had addressed the jury following the Crown’s opening, there was a brief discussion between the Crown Prosecutor and his Honour as follows:

HIS HONOUR: What is the situation going to be with this tendency evidence, what do you say this is?

CROWN PROSECUTOR: Not tendency, letters (sic), relationship evidence.

HIS HONOUR: Just guilty, by what –

CROWN PROSECUTOR: No well guilty passion is tendency evidence, it comes in under the Evidence Act –

HIS HONOUR: But that what it refers to, what –

CROWN PROSECUTOR: Well it is relationship evidence so it does not come in under the Evidence Act, it just come(s) in on the basis of relationship and it places it in context.

HIS HONOUR: I understand that, but basically it is what’s known historically, albeit inaccurately is(sic) guilty passion?

CROWN PROSECUTOR: That’s right.

HIS HONOUR: I mean I use that term sort of loosely, I am well aware of it, Mr Justice Hunt said on a number of occasions it was an inappropriate term to use, but nevertheless it has been used for many, many years, but I just wanted to work out what that was about.

CROWN PROSECUTOR: Yes, your Honour.

69    In directing the jury as to the use that they might make of the other allegations of sexual misconduct made by the complainant, the trial judge said:

You have heard from [the complainant]. There are two counts set out in the indictment. [The complainant] gave evidence there were other occasions when the accused molested her. It is important I tell you what can be made of that evidence. Firstly, it is a matter entirely for you whether you accept that evidence or not. You are the judges of the facts. It is for you to evaluate the evidence. It is then for you to determine what weight to give to it.

The events alleged by [the complainant] against the accused extended over a considerable period. Evidence of other events in that period are relevant. They enable you, the jury to deliberate on the matters before you with knowledge of all the relevant issues.

In the event of you accepting [the complainant’s] evidence that there were other acts of sexual molestation there are severe limitations on the use you can make of that evidence. Certainly it would be wrong and improper of you to say, “Look, there is so many allegations made against him, some of them must be true.” You must evaluate the evidence relating to each count in the indictment separately and separate verdicts will be required.

The Crown say that you should accept the evidence of [the complainant] about molestation on other occasions. It can be used by you, I tell you, in the following manner. I tell you that the evidence can be used by you in your assessment of the background of the relationship between the accused and his stepdaughter. As I said, it would be wrong to say that because there are so many allegations some of them must be true. Such a quantitative approach would be wrong. That evidence is placed before you so you can understand the relationship between the accused and his stepdaughter over the relevant period. It can be used by you, subject to evaluation by you of its credibility, in your assessment of the relationship between the accused and his stepdaughter and the evaluation may assist you in determining whether he is guilty or not guilty of any or both of the charges before you.

70    A little later in the summing up, when the trial judge was summarising the arguments put by the Crown Prosecutor in his address to the jury, his Honour said:

The Crown says there is proof of two specific instances. There was other touching. You were told about that to put the evidence in context. The Crown says that it is a matter for you as to what assessment you make of [the complainant].

71    It has been submitted on behalf of the appellant that the directions, taken as a whole, failed adequately to explain to the jury the use that they could make of the evidence of other allegations of sexual misconduct and, in particular, that the trial judge failed to warn the jury about using the evidence as proof of a tendency on the part of the appellant to sexually assault the complainant.

72    There is a substantial body of authority that evidence of uncharged acts of sexual misconduct by an accused toward a complainant may be admitted as evidence of the relationship between the complainant and the accused at the time of the commission of the offence or offences alleged in the indictment, where that relationship is relevant to the issues before the jury. The admissibility of this type of evidence has most recently been considered by this Court in the judgment of Kirby J in R v A.N. [2000] NSWCCA 372. As no objection was taken to the evidence at the trial, it is unnecessary for the purpose of considering the ground raised on appeal to refer in detail to the principles that apply in respect of the admission of evidence of this nature.

73    However, it should be noted that evidence of allegations of uncharged misconduct by the accused is only admissible if it has sufficient relevance to the issues raised in the trial: Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at [11]-[12], per Callinan J at [182]. Simply because the evidence is said to disclose the relationship of the accused and the complainant, it does not necessary follow that it is either relevant or has sufficient probative weight to justify its admission having regard to its potentiality to prejudice the fair trial of the accused.

74    Further, the admissibility of the evidence of relationship will depend upon the purpose for which it is admitted. As was made clear in R v A.H. (1997) 42 NSWLR 702 at 708-709, the evidence can be relevant in two different ways: (a) as evidence relevant to place the events giving rise to any charge in the indictment into context and to explain the conduct of the complainant and the accused upon the particular occasion to which a charge relates; and (b) as evidence of tendency on the part of the accused to act in a particular way toward the complainant, sometimes described as evidence of guilty passion.

75    It is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was place before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence: R v Beserick (1993) 30 NSWLR 510 at 16; R v Fraser (NSW Court of Criminal Appeal, unreported, 10 August 1998) at 28; R v Greenham [1999] NSWCCA 8 at [28].

76    Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v A.H, above; BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; R v R.N.S. [1999] NSWCCA 122. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as “guilty passion” or “sexual interest”.

77    Further, generally it will be necessary for the judge to give warnings that they should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment or reason that because the accused may have done something wrong to the complainant on some other occasion that he must have done so on an occasion which is the subject of any charge: R v Greenham, above, at [28]-[29] approving the directions given in R v Beserick, above, and R v Wickham (NSW Court of Criminal Appeal, unreported, 17 December 1991).

78    I believe that the directions given by the trial judge fell well short of what was required in this case. The admission of evidence of this nature carries with it the real risk that the jury might misuse it. The limited purpose for which the evidence was placed before the jury and the limited use that could be made of it by them during their deliberations should have been brought home to the jury in unequivocal terms. The trial judge did not do so in this case during the summing up. Nor did he explain to the jury the basis of its admission when the evidence was first placed before them during the examination of the complainant: R v Beserick, above, at 516.

79    To tell the jury that the evidence of other misconduct could be used “in your assessment of the background of the relationship between the accused and his stepdaughter” and that the evidence was placed before them “so you can understand the relationship between the accused and his stepdaughter over the relevant period” would not have enlightened the jury as to the use to be made of the relationship between the accused and the complainant once they understood it. To inform the jury that their assessment and evaluation of their relationship “may assist you in determining whether he is guilty or not guilty of any or both of the charges before you” was merely to state that the evidence was relevant without indicating what its relevance was.

80    Although his Honour later referred to the fact that the jury had been told about the “other touching” to put “the evidence in context”, this statement would hardly have advanced the jury’s understanding of how they might use the further allegations made by the complainant. The evidence of uncharged sexual misconduct by the accused was not confined to touching. It included allegations of repeated acts of sexual intercourse as that term is generally understood. If this statement were meant to refer the jury back to the Crown Prosecutor’s opening three days earlier, it was not an appropriate or adequate way of ensuring that the jury understood the purpose for which evidence was placed before them.

81    Nor was the admonition against what the trial judge termed “a quantitative approach” adequate to convey to the jury the limited use that they could make of the evidence. It did not direct the jury against the particular line of reasoning which might arise from the admission of such evidence: that the jury might use it as the basis of inferring a propensity or tendency by the accused to act in a particular way toward the complainant and, therefore, find it more likely that he committed the particular acts relied upon as the basis for the charges in the indictment.

82    Nor did it warn the jury against substitution of the evidence for the specific allegations which made up the charges on the indictment. On the facts of this case such a warning was particularly important. In cases where the evidence of other misconduct is vague and unspecific, an omission to give such a warning may have little real impact upon the way the jury would approach the use of such evidence. The likelihood of substitution might be non-existent and the direction a mere empty formality. But in this case there was evidence of some particularity and detail about where and when some of the other acts of sexual misconduct occurred. There was a real risk that the jury may have found the facts and circumstances surrounding one of these other acts to be more plausible than one of the particular allegations giving rise to the charges on the indictment. Therefore, the jury should have been warned about substituting one allegation for another to prove either charge in the indictment.

83    In my view the trial judge to a very significant degree failed to adequately direct and warn the jury as to the approach they should take to the evidence of relationship during the course of their deliberations. Because of the real risk of misuse which attends the admission of such evidence, the inadequacy of the summing up in this case led to the possibility of a miscarriage of justice. Therefore, it is appropriate to grant leave to the appellant to argue this ground: R v Tripodina (1988) 35 A Crim R 183 at 191-195.

84    The ground has been made good.

85    Before leaving this matter, it should be noted that once again trial counsel have failed in their duty to the trial court in not bringing this deficiency in the summing up to the notice of the trial judge. The authorities of this Court, to which I have referred above and which relate to the directions to be given in respect of relationship evidence, were all decided well before the trial of the appellant took place. There is no doubt at all that, had either counsel brought this matter to attention, his Honour would have given appropriate directions.

86    In particular, if the Crown wishes to adduce this type of evidence, it has a particular duty to ensure that its reception does not lead to a miscarriage of justice: see R v Marsh [2000] NSWCCA 370. This duty extends to ensuring that the jury is fully and appropriately directed upon the evidence in accordance with the purpose for which it was introduced.

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