R v Le - [2000] NSWCCA 49

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Vinh LE [2000] NSWCCA 49 revised - 14/07/2000

FILE NUMBER(S):
60556/98

HEARING DATE(S): 25/11/99

JUDGMENT DATE: 07/03/2000

PARTIES:
Regina
Vinh LE

JUDGMENT OF: Sully J Hulme J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 96/21/3351

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
R. Hulme - Crown
G. P. Craddock - Applicant

SOLICITORS:
S. E. O'Connor - Crown
T. A. Murphy - Applicant

CATCHWORDS:

LEGISLATION CITED:
Evidence Act 1995 (NSW)
Criminal Appeal Rules

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60556/98

SULLY J
HULME J
HIDDEN J

7 March 2000

REGINA v Vinh LE

JUDGMENT

SULLY J: On 12 August 1998 Mr. Vinh Le, [“the appellant”], was presented for trial, in the District Court at Campbelltown and before her Honour Judge Tupman, upon an indictment containing twelve counts. Counts 1, 2, 3, 4 and 5 alleged various offences against a common victim, a Mrs. HL. Counts 6, 7 and 10 alleged, similarly, offences committed against a common victim, namely Miss TP, the daughter of Mrs. HL. Counts 8, 9, 11 and 12, also, alleged various offences against a common victim, namely JP, the son of Mrs. HL.
The appellant pleaded not guilty to each count in the indictment. He was put, accordingly, upon his trial by her Honour and a jury. On 28 August 1998 the jury returned verdicts of not guilty to counts 4 and 5; and returned verdicts of guilty to each of the remaining eight counts in the indictment. On 11 December 1998 the appellant was sentenced to various terms of penal servitude. No present challenge is made to those sentences, and nothing more need now be said about them.
In order to consider properly certain in particular of the grounds of appeal, it is necessary to note the following details of the twelve counts in the indictment upon which the appellant was tried.

Count	Offence	Alleged Date	Alleged Victim
1	Sexual intercourse without consent and with knowledge of no consent	Between 1 February 1996 and 29 February 1996	HL
2	Assault	Between 1 February 1996 and 29 February 1996	HL
3	Assault	Between 1 April 1996 and 31 May 1996	HL
4	Assault	Between 1 May 1996 and 31 May 1996	HL
5	Assault	Between 1 June 1996 and 30 June 1996	HL
6	Assault with an act of indecency upon a person then under the age of 16 years, namely 12 years	Between 1 June 1996 and 30 June 1996	TP
7	Sexual intercourse without consent and with knowledge of no consent, the alleged victim being a person then under the age of 16 years, namely 12 years	Between 1 June 1996 and 31 July 1996	TP
8	Assault with an act of indecency upon a child then under the age of 10 years, namely 4 years.	Between 1 May 1996 and 30 June 1996	JP
9	Assault	Between 1 July 1996 and 31 July 1996	JP
10	Assault	Between 1 July 1996 and 31 July 1996	TP
11	Assault with an act of indecency upon a child then under the age of 10 years, namely 4 years	Between 1 August 1996 and 6 August 1996	JP
12	Sexual intercourse with knowledge that the intercourse was being had with a child then under the age of 10 years, namely 4 years.	Between 1 August 1996 and 6 August 1996	JP

The grounds of the appellant’s appeal were formally lodged on 9 July 1999. Nine separate grounds of appeal, as follows, were thus notified:
“1.Her Honour erred in admitting the evidence of Dr. Anh Lang Mach.
2.Her Honour erred in her directions concerning the use to which the evidence of Dr. Anh Lang Mach might be put by the jury.
3.Her Honour erred in admitting evidence of ‘complaint’ by Miss TP.
4.Her Honour erred in admitting evidence of ‘complaint’ by Mrs. HL.
5Her Honour erred in her directions to the jury as to the use the ‘complaint’ evidence of Miss TP and Mrs. HL could be put.
6.Her Honour erred in admitting ‘tendency’ evidence.
7.Her Honour erred in her directions as to the use to which evidence relating to criminal acts not charged in the indictment might be put by the jury.
8.Her Honour erred in relation to the use to which the evidence of Mr. Rudolf Weigner could be put by the jury.
9.The verdicts should be set aside on the grounds that the verdicts are unreasonable or cannot be supported by the evidence.”
At the hearing of the appeal, Ground 9, as thus notified, was abandoned.
The relevant factual background to the conduct charged against the appellant was, speaking very broadly, as follows.
Mrs. HL’s husband died in 1992. Thereafter, and in order to support herself and her two children, she took in to her home domestic boarders. In about August 1995 the appellant became such a boarder. He moved out towards the end of 1995, but thereafter kept in contact with Mrs. HL. That acquaintance between them developed to the point where, at some time in the early part of 1996, they entered into a sexual relationship. In February 1996 the appellant, Mrs. HL, and the two children all moved into rented premises at Lakemba. It is at those premises that the appellant is said to have engaged in a sustained course of conduct giving rise to all twelve of the charges upon which he was indicted. The Crown provided, in connection with the hearing of the appeal, a summary of the Crown case at trial. It will be helpful to set it out in full.
“Count 1:
Mrs. HL gave evidence that shortly after the move to Lakemba the Appellant, during a sexual encounter with her had hit her and inserted a carved wooden ornament in her vagina which had caused her pain. She told him that she could not bear it any longer and asked him to take it out. When she continued to complain of pain the Appellant withdrew the object. She said that she felt pain in her vagina for a while afterwards and went to see Dr. Anh Mach, complaining of bleeding more often than normal after this event.
Mr. Rudolf Weigner (forensic biologist) gave evidence that he had examined that wooden ornament and found there was DNA in it. He said that he had compared the finding to a blood sample taken from Mrs. HL. He said that DNA material was located from two separate sources on this ornament. He said that on comparative testing he could say that one of the separate DNA types found on the ornament could be that of Mrs. HL.
Dr. Mach gave evidence that she had examined Mrs. HL and had noticed that there was a blocked gland on her vaginal wall. It is the Crown case that such finding supported the evidence by Mrs. HL that she had noticed an increase in bleeding and as a result of which sought medical attention from Dr. Mach.
Count 2:
Mrs. HL gave evidence that during February 1996 the Appellant commenced to argue with her over a relationship he claimed had existed between TP, then aged 12, and a Mr. Tam who had also previously been a boarder in the other premises at Punchbowl. The Appellant kept insisting that this relationship existed and Mrs. HL kept denying that possibility. Eventually the Appellant punched her in the face during the course of this argument, causing her eye and nose to bleed. She said that this incident happened in the bedroom at Lakemba and believed that TP might have heard what was going on but did not see it.
Mr. Tam La, the person whom the Appellant alleged to have a relationship with TP, gave evidence and denied that he had any sexual relationship with her.
Dr. Mach gave evidence that Mrs. HL consulted her about bleeding in the vagina. She took some notes of what she (Mrs. HL) told her had been an accident (that) happened a few weeks ago in which Mrs. HL had hit something with her nose resulting in a nose bleed. Dr. Mach also noticed there was some dried blood on her nose and a small conjunctival haemorrhage in her eye, which she thought was an injury which could have been caused at the same time as the nose bleed.
Count 3:
Mrs. HL gave evidence that the Appellant at that time began to suggest to her that she should sleep in the same bedroom with TP. She said that she reluctantly agreed because of the violence and threat of further violence by the Appellant towards her. On a night in April or May 1996 the Appellant stood outside the door of TP’s bedroom where she was sleeping with her mother, came into the room and alleged to her and TP that he had heard noises that indicated to him that the two of them were engaged in some sort of sexual activity. She denied this as did her daughter, but the Appellant would not accept this denial. The Appellant then started hitting Mrs. HL all over her body repeatedly with a handle of a feather duster, until eventually she was forced to agree with his proposition that she had been engaged in some sort of sexual activity with her daughter in the bedroom.
TP gave evidence that when her mother denied having any sexual relationship with her the Appellant then hit her (Mrs. HL) on the leg with the thick end of a feather duster and her mother was crying.
Count 4:
The Appellant found some clothes on TP’s desk in her bedroom. He asked Mrs. HL why they were there and suggested to her that she had organised these clothes for TP so that she could take them to her school and then she would be taken out by someone after school. There was an argument between her and the Appellant during which time the Appellant hit her over the hand with the feather duster several times causing her pain. He told Mrs. HL that by allowing her daughter to do this she was sick. If TP felt unhappy, Mrs. HL should allow TP to have sex with him and she would feel happy and she (Mrs. HL) would not be sick any more.
Count 5:
Mrs. HL gave evidence that the Appellant had told her that she should let him have sex with TP so that she would be happy and would do her studies. He referred to Lebanese and Italian men who slept with their daughters. When she refused his request she was hit by the Appellant.
Count 6:
Mrs. HL gave evidence that by June 1996 the Appellant had succeeded in forcing her to a point where she was prepared to agree to her daughter sharing the bed with herself and the Appellant. She said that the Appellant required her and her daughter to remove their clothing in the bedroom on a night in June 1996 and for them to lie down on the bed. The Appellant also lay down on the bed with them. She was instructed by him to touch her daughter in her genital area and to place a carrot inside her vagina. Mrs. HL was prepared to do all these because of her fears of further physical assaults on herself and her fears for the safety of her daughter, based on her experience with the Appellant between February and June.
Mrs. HL said that on the instructions of the Appellant, she in fact did touch her daughter’s genital area and did pretend to place a carrot insider her vagina. She touched the genital area with the carrot but did not insert it into her vagina. She was able to convince the Appellant that she had done so, because there was not much light in the room at the time and she was able to an extent to shield her daughter from the Appellant because of the positions in which the Appellant and her (Mrs. HL) were on the bed at the same time.
Mrs. HL said that while she was doing this the Appellant was caressing TP’s breasts and kissing her nipples and also kissing her face. At the same time he had one arm under TP’s head and one leg over her body.
TP gave evidence that her mother, having been forced by the Appellant to do so, pretended to insert a carrot into her vagina.
Count 7:
On an evening in June or July 1996 the Appellant again had hit Mrs. HL and, as a result of being hit on this and earlier occasions, she agreed to have a carrot in the bedroom, to have her daughter in the bedroom and to behave in a way similar to what is set out in relation to Count 6. On this occasion Mrs. HL said that the Appellant paid closer attention to the activities and she was thus not able to pretend, she in fact penetrated her daughter’s vagina with a carrot at the direction of the Appellant.
TP gave evidence that her mother being forced by the Appellant and watched closely by the Appellant had inserted a carrot into her vagina.
Dr. Patricia Brennan gave evidence that her finding upon examination of TP was consistent with the allegation of the entry of a carrot into her vagina.
Count 8:
In May/June 1996 the Appellant commenced to turn his attention as well to Mrs. HL’s four year old son, JP. He insisted that Mrs. HL should touch JP in a sexual manner. Mrs. HL gave evidence that he had instructed her on an occasion in May/June 1996 to take off JP’s pants and to play with his penis. She obeyed the instructions given to her because of the fear of physical violence being perpetrated, as had occurred in the past. At that stage the Appellant was masturbating himself. She said that the Appellant directed her to suck her son’s penis, which she refused to do. The activity came to an end in due course without her being required to suck her son’s penis because at her suggestion JP asked to go to the toilet.
Count 9:
Mrs. HL gave evidence that during the school holidays in July 1996, the Appellant hit JP with a feather duster causing a cut to his face, as a result of which at the insistence of the Appellant JP was not allowed to go to pre-school for a number of days because of the consequences of the cut on his face.
TP gave evidence that during the school holidays she had seen the Appellant hit her brother with a feather duster and left a mark near his eye.
Count 10:
Mrs. HL gave evidence during the school holidays in July 1996, the Appellant asked TP to come to his room and she refused, the Appellant then hit her on the face with his fist, causing a bruise on her face.
TP gave evidence that she was slapped across her face by the Appellant.
Katrina Gemisi, Year 7 school teacher to TP gave evidence that she had seen bruising on her eye during the third school term in 1996.
Count 11:
Mrs. HL gave evidence that on an occasion between 1 and 6 August 1996 the Appellant instructed her to engage in sexual behaviour with her son, JP. She did that out of her fear of further assault at the hands of the Appellant. She brought her son into the bedroom and took off his clothes, as instructed by the Appellant. The Appellant instructed her to suck JP’s penis, which she did not do, but played with and fondled his penis at the instructions of the Appellant. At this stage the Appellant was kissing JP around the top of his body. That act of touching him on his penis by Mrs. HL at the direction of the Appellant constituted the facts in relation to this count.
Count 12
As a result of what happened in count 11, Mrs. HL gave evidence that she continued to refuse to suck her son’s penis, which led to the Appellant becoming dissatisfied. He stopped touching him (JP) on the top part of his body and moved his attention to his (JP’s) penis, which he began to suck.
A record of interview was conducted by Detective Sergeant Kimber with the Appellant on 15 August 1996 and he denied any involvement in any of the offences.
At the trial, Mrs. HL gave general evidence of her relationship with the Appellant. She said that the Appellant had on different occasions when having sex with her, inserted a fake penis, vibrator, hairbrush, bottle of Brut after shave, cotton reel, penis sheath into her vagina. She said that the Appellant had suggested to her that marbles be inserted into her vagina so that there would be new sensation during their sexual intercourse. She further said that the Appellant had made her and her daughter, TP, watch sex videos with him. The Appellant told her that she should let her daughter watch some sex movies so she would be able to learn how to do it whenever she (TP) was having sex with him. Mrs. HL also gave evidence that the Appellant had hit her with a rolling pin and the bottom of a lamp.”
The appellant gave sworn evidence at his trial. He was in the witness box for the better part of two days. It is, for the moment, sufficient to understand that the appellant denied the entirety of the allegations of misconduct made against him by Mrs. HL and her daughter, TP. The appellant claimed to have seen TP having sexual relations with a man named Tam Ngoc La. The appellant made a number of serious allegations concerning what he alleged to have been aberrant sexual conduct by Mrs. HL towards both her daughter and her son.
It is now possible to turn, in sequence, to the appellant’s notified grounds of appeal.
Ground 1: Her Honour erred in admitting the evidence of Dr. Anh Lang Mach
Ground 2: Her Honour erred in her directions concerning the use to which the evidence of Dr. Anh Lang Mach might be put to the jury
Dr. Mach gave evidence of having been consulted at her surgery by Mrs. HL on 30 April 1996. The doctor had not seen Mrs. HL, prior to that date, for some 5 years. Mrs. HL presented with complaints of something like a lump being in the opening of her vagina. She complained, also, of pre-menstrual tension; of lower abdominal pain; and of a generally tired and unwell feeling.
Dr. Mach examined Mrs. HL and discovered a blocked gland on the left side of the vaginal wall. The doctor could not say exactly what had caused the blocked gland. The only explanation that she could suggest was that such a thing “could happen like a cyst on a face or something like that, I don’t know what, or any other courses’”.
Dr. Mach said that she had spoken to Mrs. HL about the condition of her nose. It seems that Mrs. HL told the doctor that “a few weeks previously she accidentally hit her nose to something and she didn’t say anything so I didn’t put down what she hit her nose to and she had a nose bleed”. The doctor noticed some old blood in the nose and “a small conjunctival haemorrhage” to Mrs. HL’s right eye. The doctor thought that the conjunctival haemorrhage could have been caused by such an accident as Mrs. HL had described as having caused her to hit her nose with consequential nose bleeding.
The Crown relied at trial upon this evidence as giving some support to part of Mrs. HL’s own evidence in which she had alleged that the appellant had punched her in the face causing her nose to bleed and her eye to become swollen and bruised. According to Mrs. HL, that incident could not be dated better than by putting it in 1996 in “February”; or “some time around in February”, or “sometime in February”. Mrs. HL claimed that she had been thus assaulted by the appellant in connection with an argument that she and he had had concerning an allegation by him that TP had been sleeping with a former boarder, Tam Ngoc La. Mr. La himself gave evidence that would have put the dispute between the appellant and Mrs. HL at some time in late January or early February 1996. Mrs. HL claimed that the appellant had prevented her from seeking any medical attention at the time she suffered the injuries of which she was particularly complaining. Mrs. HL gave, also, evidence of a more general kind that there had been subsequent occasions upon which arguments between her and the appellant had given rise to her being assaulted by him.
The appellant now contends that this evidence should not have been led at all for the reason that it was not relevant in the sense required by s.55 of the Evidence Act. That section provides:
“55(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)      In particular, evidence is not taken to be irrelevant only because it relates only to:
(a)      the credibility of a witness; or
(b)      the admissibility of other evidence; or
(c)       a failure to adduce evidence.”
The first thing to be said about the submissions now made for the appellant is that no objection was taken at trial to the leading of any part of Dr. Mach’s evidence in chief.

Further, no re-directions were sought from the learned trial Judge in connection with her Honour’s directions to the jury concerning Dr. Mach’s evidence.
Her Honour dealt with Dr. Mach’s evidence at a point in her Honour’s summing up where her Honour was dealing with Count 2 in the indictment. The relevant directions are succinct and are as follows:
“The Crown also relies on some other evidence as supportive of Mrs. HL’s - that part of Mrs. HL’s evidence in which she claims she received a bleeding nose and some injury to her face as a result of this assault. The Crown relies in regard on the evidence of Doctor Mach who I have already referred to in relation to conducting the vaginal examination on 30 April 1996 but you might also remember her evidence that she took some notes of what Mrs. HL told her had been an accident a few weeks previously in which she hit her nose on something, which she did not explain, and had a nose bleed. Doctor Mach you will remember said that she could still see some dried blood in Mrs. HL’s nose on that occasion and also observed that she had a small conjunctival haemorrhage which she said was an obvious red blood mark in her eye which Doctor Mach thought was as a result of an injury.
You would be entitled to use this evidence as supportive of that part of Mrs. HL’s allegation claiming that she received a bloody nose and some injury to her eye and face as a result of being punched by the accused on this occasion. It alone of course could not convict the accused of this count because it does not link the accused to this count in the indictment.
You might on the other hand however think that the findings made by Dr. Mach on 30 April 1996 did not tend to support this part of Mrs. HL’s evidence in relation to this count because of the time that had elapsed between these allegations in the count being February 1996 and the examination on 30 April 1996.
You might also think that the explanation given by Mrs. HL to Doctor Mach that she had had an accident in which she hit her nose on something which caused it to bleed as tending to lessen the supportive value of this evidence of Mrs. HL. On the other hand you might think that this explanation by Mrs. HL to Doctor Mach is of little relevance in assisting you to determine whether or not these findings of Doctor Mach are supportive of Mrs. HL’s evidence given Mrs. HL’s other evidence that she was reluctant to discuss such issues relating to her private relationships with outsiders.” [Summing-up at 23,24]
In considering whether Dr. Mach’s evidence was admissible in terms of s.55 of the Evidence Act, it is in my opinion important to keep clearly in mind a distinction between the question whether a particular piece of evidence is probative, and therefore admissible at all; and the very different question of the weight fairly to be given to that evidence after it has been admitted properly.
It is to be observed that s.55 speaks of a rational effect that is brought about “directly or indirectly”. This is very broad language, and it suggests, in my opinion, a wide rather than a narrow focus to the inquiry whether a proffered piece of evidence has the rational potential which s.55 requires.
Approached in that spirit, I do not agree that Dr. Mach’s evidence was not probative in the sense required by s.55. The probative value of that evidence, and the competing views that were open to be taken concerning its weight as distinct from its probative value, are set out, in my respectful opinion, clearly, correctly and fairly in the quoted portions of her Honour’s summing-up.
In my opinion, these two grounds of appeal have not been established.
Ground 3 - Her Honour erred in admitting evidence of ‘complaint’ by TP
Ground 4 - Her Honour erred in admitting evidence of ‘complaint’ by Mrs. HL
Ground 5 - Her Honour erred in her directions to the jury as to the use the ‘complaint’ evidence of TP and Mrs. HL could be put
At the forefront of the submissions now put for the appellant is the proposition that the decision of the High Court of Australia in Graham v The Queen (1998) 157 CLR 404 entails that evidence of complaint was wrongly admitted at the appellant’s trial upon the erroneous assumption that such evidence satisfied the requirements of s.66 of the Evidence Act 1995 (NSW).
Section 59 of the Evidence Act establishes what is described as “the hearsay rule”. That rule is stated as follows:
“Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.”
Succeeding sections of the Act graft various exceptions onto that basic rule. Section 66 is one such provision. Section 66 applies “in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact”. It is then provided, relevantly, that:
“(2)     If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a)      that person; or
(b)      a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”
The decision in Graham concerns the proper construction of the phrase, contained in s.66(2), “fresh in the memory”.
Graham was decided by a Bench of five Justices. Two of them, - Callinan J, Gleeson CJ concurring, - deal as follows with the relevant question of construction:
“While it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise, will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the ‘quality’ of the memory and, in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s.66, but such cases will necessarily be rare and requiring of some special circumstance or feature. It is desirable that s.66 be given such a construction not only for certainty but also to avoid as much as possible the delay and expense of voir dire hearings to explore questions of vividness and the like, with their attendant opportunities for the rehearsal of cross-examination and evidence.” [157 ALR, 410 (20) - (30) ]
The remaining three Justices, - Gaudron, Gummow and Hayne JJ -, expressed the following view:
“The word ‘fresh’, in its context in s.66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’) but the core of the meaning intended is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.
There are several reasons for adopting this construction. First, the section applies only where the person who made the representation has been, or is to be, called to give evidence. To permit leading of evidence of out of court statements made by that person based upon some assessment of the vividness or quality of the recollection (as opposed to its being made very soon after the events) would be to distract attention from the quality of the evidence that the witness gives in court. Secondly, whatever a person may believe, and no matter how earnestly may try to be accurate, experience demonstrates that the memory of events does change as time passes. Thirdly, the exception created by s.66 should be limited in its application to those cases where the tender of the earlier statement is likely to add to the useful material before the court. If a witness claims to have a vivid recollection of events when called to give evidence, permitting the tender of some earlier statement made well after the events (but while they were, in the view of the witness or the court, still vivid) adds little useful to the material before the court. By contrast, to permit the tender of a statement made at the time of (or very soon after) events in question may well be useful. Such a statement may give the best available account of what the witness knows of the events.” [157 ALR ,405(20) - (45)]
The Crown called four witnesses, each of whom gave complaint evidence, the admissibility of which depended, at least in the first instance, upon s.66.
Mrs. Kathleen Hobson was a lady aged, at the time of the giving of her evidence, some 83 years of age. Mrs. Hobson gave evidence that on 6 August 1996 she had been living in a unit in the building in which the appellant, Mrs. HL and the latter’s two children were then living in a nearby unit.
Mrs. Hobson gave evidence that on 6 August 1996 she entered the unit occupied by the appellant and Mrs. HL. She did so in company with a plumber, and in order to repair a water leak which was causing water to penetrate into Mrs. Hobson’s own unit. Sometime later during that day Mrs. Hobson heard a door of the unit occupied by the appellant and Mrs. HL “bang against my wall, then I heard some screaming”. Another neighbour, a Mrs. Thao, called Mrs. Hobson out of her unit. When Mrs. Hobson emerged from her unit, she saw Mrs. HL and the two children. They were crying. Mrs. Hobson then gave this evidence:
“I asked them what was the matter and they said he was bashing them up and I said, ‘Why?’ and they said ‘He’s bad tempered’. And I said, ‘You don’t have to put up with it. You don’t have to go back inside. Call the police and they will give you refuge’, and they said they didn’t want the police and I said, ‘Have you got a relative that will come and take you away?’ and they said, ‘Yes’ and I said ‘Well, come in and use my phone to ring them up’ which they did. They came in and the gentleman came to the door a couple of times but I said he couldn’t come in and the lady sang out something to him in her language and he went away and then the lady’s cousin came and took them away. That’s the - that’s all I know.” [Trial Transcript: 285]
Mrs. Hobson added that she had noticed some blood on Mrs. HL’s hand.
Counsel appearing for the appellant at trial cross-examined Mrs. Hobson in some detail. It was not put to her that her recollections as she had recounted them in her evidence in chief were in any way at all inaccurate or unreliable. Mrs. Hobson was cross-examined in a way that drew from her evidence that she had previously seen the appellant in company with Mrs. HL and the children and that they had appeared to be a normal family group. Mrs. Hobson was cross-examined about her evidence-in-chief concerning blood on Mrs. HL’s hand; but the cross-examination did not attempt to establish anything more than that Mrs. Hobson had not noticed any other injury to Mrs. HL.
In my opinion, the application of s.66 to Mrs. Hobson’s evidence identifies Mrs. HL as the relevant “person who made a previous representation”. Mrs. HL was not only available to give evidence about the facts previously represented by her; but she was actually called to give evidence at the trial; so that s.66 became operative. That entailed, in turn, that the hearsay rule did not apply to evidence of the representations made by Mrs. HL, when that evidence was to be given by Mrs. Hobson, the person to whom the representation was actually made. The facts asserted by the previous representation made by Mrs. HL to Mrs. Hobson were that the appellant, in the time immediately preceding the making of the representation, had been “bashing them up”, the cause of the bashing being that the appellant was “bad tempered”.
In my opinion, the facts thus asserted by Mrs. HL to Mrs. Hobson, if they were actual as well as asserted facts, had occurred clearly at a time when their occurrence was “fresh in the memory of the person who made the representation”, namely Mrs. HL.
No objection was taken at trial to the admission of Mrs. Hobson’s evidence. It was in my opinion correctly admitted.
Miss Christina Thao was called immediately after Mrs. Hobson. Miss Thao gave evidence that on 6 August 1996 she was living in a unit close to the unit occupied by the appellant, Mrs. HL, and the two children. Miss Thao gave evidence that: “I heard two women rushing out from the door and the next thing I heard was my door bell ring………………..I would say about a few minutes continuously’.
Miss Thao opened her door, and saw there Mrs. HL and her daughter. The daughter was crying. Miss Thao had never met these people before, other than for a brief encounter a couple of days previously. Miss Thao thought that when she saw Mrs. HL and TP outside her door on 6 August, Mrs. HL “appeared to be frightened”, and to look “upset, angry”. TP gave the impression of being “very depressed and crying”.
According to Miss Thao, Mrs. HL said: “He hit me”. She added: “He always hit us”.
Miss Thao said that a little later she had seen the appellant, who denied having struck Mrs. HL, and who himself had a bump on his forehead with a small amount of surface blood.
Miss Thao was cross-examined, with particular reference to a statement which she had apparently given to the police on 19 September 1996. It seems that Miss Thao had said in that statement that it had been TP and not Mrs. HL who had made the complaint of beating. Miss Thao, taxed in cross-examination about the seeming discrepancy between her evidence in chief and the contents of her statement to the police, said: “I wasn’t questioned in that manner. I just stated what I was asked”.
What I have said previously concerning the application of s.66 to the evidence of Mrs. Hobson, I would repeat in connection with the evidence of Miss Thao. No objection was taken to the leading of her evidence at trial. In my opinion it was properly admitted.
Mrs. Thi Y Dao gave evidence that Mrs. HL is the cousin of Mrs. Dao’s husband. Mrs. Dao gave evidence that she had been telephoned at her home by Mrs. HL and on 6 August 1996: “Mrs. HL…………..asked me to come over to help her because she was hit by Mr. Vinh ………………. I heard her crying on the phone asking me to come over and drive her to my house with me”.
This call took place at about 6 or 7 pm on the evening of 6 August. Mrs. Dao made arrangements for Mrs. HL and her children to be brought to her, Mrs. Dao’s, home. Mrs. HL, upon arrival, “…………. looked tired and she had some bruises and a lump on her forehead and some swelling here on her lip”. TP “……………….. was crying and she looked sad and upset”.
Mrs. Dao’s evidence then continued as follows:
“Q.      Did you have a conversation with Mrs. HL about what had happened to her?
A.       Yes I did.
Q.       For how long were you talking to Mrs. HL about this subject?
A.       I asked her to have some dinner but she refused so we talked until about midnight or after that.
Q.       What did she tell you about what had been happening?
A.       She told me that Mr. Vinh had been hitting her and assaulting her and asking her to have sex with him and the way he wanted her to have sex with him.
Q.       When you say the way to have sex with her what do you mean?
A.       HL told me that Mr. Vinh wanted to have sex with TP.
Q.       Did she say anything else about what was occurring of a sexual nature?
A.       Yes.
Q,.      What did she say?
A.       She said that Mr. Vinh had some of those fake penises.
Q.       What did she say about him having fake penises?
A.       She told me that Mr. Vinh was making - had been making demands of her using those and for him to watch.
Q.       Did she say anything further in relation to what was occurring to TP, between TP and Mr. Le?
A.       Yes she did.
Q.       What did she say?
A.       She told me that there were occasions when he ask her to allow TP to sleep with him and HL told me that she loves her children and she didn’t want that to happen and Mr. Vinh hit her.
Q.       Was anything further said about her being hit by Mr. Vinh Le?
A.       Yes.
Q.       What was said?
A.       HL told me that when she did not agree for him to touch TP like that he hit her.
Q.       Mrs. Dao did Mrs. HL and her children stay that night at your home?
A.       Yes.
Q.       Did they leave the next day?
A.       Yes.
Q.       Did you later provide a statement to the police which was given in February of 1997?
A.       Yes.” [Trial transcript 317-318]
Mrs. Dao was cross-examined briefly. The cross-examiner concentrated upon the frequency of contact between Mrs. Dao and Mrs. HL, both before and after the events of 6 August 1996. In that context, Mrs. Dao gave the following evidence in cross-examination:
“Q.      During the trial last year where you gave evidence, I asked you the following question and the question is this “So is it the case that the frequency with your contact with Mrs. HL did not vary significantly both before and after they moved to Lakemba?” and your answer was “Yes”?
A.       There wasn’t a lot of visit.
Q.       I want to put the question to you now would you now agree with this proposition, the frequency of your contact with Mrs. HL did not vary significantly both before and after they moved to Lakemba?
A.       I agree but it was not very much.
Q.       You gave evidence in relation to Mrs. HL talking to you at your home about what had happened to her?
A.       Yes.
Q.       When you were having that conversation with her was there any mention of carrots?
A.       Yes.
Q.       What did Mrs. HL say about carrots?
A.       She said that Mr. Vinh ask her and also bought some carrots to use with her so that he can watch.
Q.       Is it the case that Mrs. HL told you that the carrots were bought in order to put into the vagina of HL?
A.       Yes.” [Trial transcript: 322-323]
In my opinion the application of s.66 to the evidence, and in particular the evidence-in-chief, of Mrs. Dao produces the same result as in the cases of Mrs. Hobson and Miss Thao. No objection appears to have been taken to the leading of Mrs. Dao’s evidence of what had been said to her by Mrs HL on the evening of 6 August 1996. In my opinion the evidence was correctly admitted.
Constable Rebecca Louise Sharp gave evidence that on Wednesday, 7 August 1996, she had attended a refuge at Greenacre. There she had seen Mrs. HL and the two children. They were in the company of “…………………another Asian lady and about two or three social workers”. At that time Mrs. HL “………. Was crying, her English wasn’t very good at all, so I didn’t know what she was saying”. TP, at that stage, “…………… was crying also. She was embarrassed at the sight of me………………………. She couldn’t look me in the eye when I first went in there. It took a while for her to speak to me”.
Constable Sharp said that she had originally gone to the refuge as “a victim support officer”. She was unable to get the assistance of the sexual assault police; and so she had, eventually, a conversation with TP in the presence of Mrs. HL, of the other Asian lady and of the other social workers. In this connection, Constable Sharp gave the following evidence:
“Q.      What did she tell you?
A.       She told me that a man had moved in with her and her mum and her brother, about six months prior to that date. He was living with them at first as a boarder. I believe her mother had put an ad in a paper of something, to have someone live there. He would touch her, he would touch - she would say in her private area. She said that he would touch the mother, he would touch the mother when TP was there, when JP was there. When TP was in the same bed as the mother. He would in her words “stick things up her private parts” and that of her mother while they were in the same bed. She also said that he would do bad things to her top and while she was in the same bed as the mother and then he would do bad things to her mother’s bottom at the same time. She said that he would make them watch pornographic videos. He would make them touch him while he was watching it and he would touch them also. This happened a lot with JP she said.
Q.       Is there any reference during this conversation to any type of physical violence?
A.       He would hit her, he would hit the mother a lot. I don’t recall him hitting JP, just that he used to touch JP and get JP to touch him. There was a lot of slapping and sort of hitting.
Q.       Now during this conversation as it was occurring had the crying that you had referred to earlier, had that ceased from TP?
A.       No, it hadn’t. I was holding TP’s hand during this and she kept squeezing my hand.
Q.       And to what extent was she crying, was it a large amount, was it a small amount, how would you describe it?
A.       It was enough to make her stop speaking and enough for me to make her stop and take some deep breaths and I would just let her start when she was able to.” [Trial transcript: 355-356]

After this conversation, Constable Sharp asked the children to leave the room with one of the social workers; and she thereupon had a conversation with Mrs. HL with the assistance of the other Asian lady as interpreter. In this connection, Constable Sharp gave certain evidence. She was then asked the following questions and gave the following answers:
“Q.      Was there any reference in your conversation with TP about the subject of telling somebody?
A.       If she told anyone, if she told a teacher or a school friend, her mother and her brother would be killed.
Q.       Would be?
A.       They would be killed.
Q.       Now, at this time in the position you were in, were you taking any notes of this conversation with TP?
A.       No, all I was told to do was to listen to what they said and act as a victim support role.
Q.       The conversation that you had with TP did it all flow in one conversation, or did it take some time?
A.       It took some time, but only as I said before, when she got too upset I would stop her, or she would stop because I just couldn’t understand what she was saying. It probably, it would have went for half an hour. It went for a long time.” [Trial transcript: 356,357]
Constable Sharp was cross-examined briefly. The cross-examination concentrated upon the fact that she had not taken contemporaneous notes; although she had made a statement subsequently and on 31 August 1996. A suggestion was made in cross-examination that Constable Sharp had discussed with one of her senior police officers, and between the holding of the conversations on 7 August and the making of the statement on 31 August, the things that she had been told on 7 August.
The representations of fact made by TP to Constable Sharp amounted, as it seems to me, to representations about a course of conduct which had originated about six months prior to 7 August 1996, being the date of the making of the representations, and which had continued up to 7 August. If strict and literal effect is to be given to the view expressed in the passage earlier quoted from the joint judgment of Gaudron, Gummow and Hayne JJ to the effect that the occurrence of an asserted fact will be “fresh in the memory” of the person representing that fact only if that freshness “be measured in hours or days, not ……………………in years”, then, at the very least, the whole of the asserted facts as represented by TP to Constable Sharp on 7 August 1996 could not, on their face, satisfy so narrow a temporal test. The problem thus posed is not made any easier by the fact that the things said by TP are not related by her to any particular date or dates. It is, therefore, not possible to sever, as it were, and to disallow as impermissibly remote, some of the things; and to identify as not impermissibly remote the balance of her assertions.
The joint judgment of Gaudron, Gummow and Hayne JJ accepts, in terms, that a particular application of s.66 might well raise “questions of fact and degree”. In my opinion this is one such case. TP was describing a six-month continuum which was characterised by recurrent outbursts on the part of the appellant of physical violence and of grossly aberrant sexual conduct. The constant refreshing effect of the regular repetition of such behaviour seems to me to provide an additional special element of such a kind as warrants a departure from the narrowest and most literal construction of the expression “fresh in the memory”.
I have come, therefore, to the conclusion that the evidence of TP’s representations to Constable Sharp was not wrongly admitted by reason of the operation of s.66.
In my opinion, therefore, grounds 3, 4 and 5 have not been established.
Ground 6. Her Honour erred in admitting ‘tendency’ evidence
Ground 7 - Her Honour erred in her directions as to the use to which evidence relating to criminal acts not charge in the indictment might be put by the jury
The Crown led from both Mrs. HL and TP a great deal of evidence alleging conduct on the part of the appellant which involved either physical violence or the use of various objects for perverted sexual gratification. These alleged acts of the appellant were not the subject of particular counts in the indictment. That being so, the bases upon which the evidence of those uncharged acts might be properly admissible are established as follows by the judgment of this Court in Reg v AH (1997) 42 NSWLR 702:
“…………………..(E)vidence 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:………………..; 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: ………………..
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.
Where the Crown introduces the evidence for the former purpose, it is not tendency evidence, and the requirements of s.97 and s.101, [these are references to sections of the Evidence Act 1995], are irrelevant: ………………………….. Once admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had the guilty passion, he did the act in question unless it does comply(?????????) with those requirements (Evidence Act, s.95), and the judge should direct the jury that they may not use it in that way unless it does comply.
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: …………………. 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.
Section 101(2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person thinks that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of the particular case: ……………………….. As such evidence is circumstantial in nature, the Crown must establish that there is no reasonable view of the evidence available which is consistent with the innocence of the accused: ………………. .That is what is required by s.101(2): ……………………….. .” [42 NSWLR, 708D - 709E]
In the present case, the evidence which the Crown led at trial of acts not specifically charged against the appellant but having, nevertheless, sexual connotations similar to those acts that were so charged against the appellant, was led for both of the purposes to which reference is made in the passage quoted from the decision in AH. As the decision in AH makes clear, it thereupon became necessary for the learned trial Judge to direct the jury with particular care as to each of the bases upon which the particular evidence had been placed before them. Her Honour did this at pages 69, 70 and 71 of the summing up. Having read and considered that portion of her Honour’s charge to the jury, I am of the opinion that it complied with the requirements of the law as explained in the passages earlier quoted from AH.
The Crown led, also, evidence that there had been found in the appellant’s possession a collection of what might be described comprehensively as sex aids. The appellant contends that it cannot be said that the mere possession of such articles “…………has significant probative value in showing a tendency to use them in forced acts of sexual intercourse with unwilling females”. It is submitted, therefore, that evidence of that possession of those items could not satisfy the requisite tests for admission as tendency evidence. It is submitted that, in so far as the learned trial Judge left that evidence of possession to the jury as potential tendency evidence, her Honour misdirected the jury in law.
What her Honour in fact said to the jury was this:
“The Crown relies on the possession of the accused of these objects and the finding of them in the unit in the way the evidence discloses as also showing a tendency on the part of the accused to act in a particular way.
You would be entitled to take that evidence in regard as establishing that tendency but only if you were satisfied beyond reasonable doubt of the truth of the allegations that Mrs. HL made about these other items being used by the accused in the way she said and, further, only if you were satisfied that there was no other explanation consistent with the innocence of the accused for them being found.” [Summing up: 72]
Her Honour then went on to explain carefully and comprehensively the innocent explanation which the appellant had put forward in his own evidence.
The appellant did not dispute at trial his possession of the objects in question. Mrs. HL gave evidence that the appellant had used various of these objects on her person as a means of his obtaining sexual gratification. A jury which was prepared to find beyond reasonable doubt that those allegations of Mrs. HL were true; and, in addition, that there was no reasonable possibility of an innocent explanation for the accused’s possession of the objects; would have been plainly entitled, in my opinion, to find in those conclusions significant probative assistance in connection with the specific allegations upon which counts 1, 6 and 7 in the indictment were founded.
In my opinion Grounds 6 and 7 have not been made out.
Ground 8 - Her Honour erred in relation to the use to which the evidence of Mr. Rudolf Weigner could be put by the jury
The basis upon which this ground is put forward is explained with complete clarity in the following written submission put in for the appellant:
“28.     Her Honour’s directions in relation to the DNA evidence, at SU73-4 were apt to permit the jury to find support for Mrs. HL’s allegations. However, Mr. Weigner said no more than that the DNA found on two objects “could” be that of Mrs. HL. It could also have been one in every twenty-one thousand persons in the general population, one in eleven thousand Chinese persons, and one in seven thousand Koreans. It goes without saying that it might also have been that of a man. It could have come from any part of the human body save for red blood cells and some skin cells. It might have been there for years.
29.      There was no evidence as to precisely what Mrs. HL’s ethnicity was.
30.      Her Honour directed the jury that they were entitled to see that evidence as supportive of Mrs. HL’s evidence. The evidence had no probative value. It established no more than that somewhere, at some time, a person with a certain DNA profile, (of whom, especially in the Chinese case, if that is what she is, there must be millions), touched the objects. The jury ought to have been directed to pay no regard to the evidence.”
It is the case that her Honour, in the concluding passages of a long and very careful summing up, did advert to the DNA evidence now in question. What her Honour said, relevantly, was:
“The Crown submits to you that this DNA evidence in relation to the vibrator you would view as being supportive evidence of this evidence of Mrs. HL and particularly in circumstances where the accused denies having used it on Mrs. HL or at all. You would be entitled to regard it as supportive or confirmatory evidence of this evidence of Mrs. HL. On the other hand you might be of the view that the DNA evidence is inclusive or that there is some other explanation for the DNA evidence which could be that of Mrs. HL being on the vibrator which is consistent with the innocence of the accused.”
Much earlier in the summing up, - and at pages 18 and 19, - her Honour dealt in more detail with the relevant DNA evidence. Her Honour dealt in particular with that evidence as it touched upon a wooden ornament said to have been used by the appellant on the person of Mrs. HL and for the purpose of his obtaining perverted sexual gratification. On that earlier occasion, her Honour said, relevantly:
“You might think that the use to which you could put this evidence as supportive evidence would be restrictive, given the limitations that Mr. Weigner himself placed on it and also his evidence that on the data basis available to him, whilst the DNA material could be that of Mrs. HL, there was a one in twenty-one thousand chance that it would be her from the general population, a one in eleven thousand chance that it could be her in the Chinese population and a one in seven thousand chance that it could be her in the Korean population. Most importantly, this piece of evidence from Mr. Weigner, that is the DNA evidence, does not link the accused to this particular offence. You could use it as confirmatory of that part of Mrs. HL’s account in which she alleges that the object was inserted into her vagina, but taken by itself it would never be capable of convicting the accused on this count in the indictment.”
In my opinion no error has been demonstrated concerning her Honour’s directions as to the DNA evidence.
In my opinion Ground 8 has not been made good.
It should be noted that no re-directions were sought by counsel appearing at trial for the appellant. This entails that the appellant requires, strictly speaking, leave pursuant to Rule 4 of the Criminal Appeal Rules in order to take the points propounded in support of his present appeal. The fact of the matter is that the Court heard, as it normally does, full argument upon each of the grounds of appeal. In that event, I prefer to deal with the grounds of appeal on their merits rather than to go through what I regard as being, in substance, the artificial formality of refusing leave pursuant to Rule 4.
For the whole of the foregoing reasons, I have come to the conclusion that the appeal against conviction should be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

No: 60556/98
SULLY J
HULME J
HIDDEN J
7 March 2000

REGINA -v- LE
JUDGMENT

HULME J:

In this matter, I have had the advantage of reading in draft form the Reasons of Sully J. Accordingly, I can be briefer than otherwise might have been required.
Ground 1 - Her Honour erred in admitting the evidence of Dr Anh Lang Mach.
Ground 2 - Her Honour erred in her directions concerning the use to which the evidence of Dr Anh Lang Mach might be put by the jury.
The evidence of Dr Mach, if relevant at all, bore on the first and second counts. The evidence encompassed a number of matters and it is convenient to list those of significance:-
(i) that Mrs HL consulted him, for the first time in some 5 years, on 30 April 1996;
(ii) that she complained of
(a) something like a lump in the opening of her vagina,
(b) that she was suffering from pre-menstrual tension, lower abdominal pain and that she was feeling tired and unwell;
(c) that she had vaginal bleeding on 28 April, although her last period had been on 10 April
(iii) that he observed a blocked gland on one of the vaginal walls;
(iv) that a blocked gland “could happen like a cyst on a face or something like that, I don’t know what, or any other causes”
(v) that he observed old blood in Mrs HL’s nose and a small conjunctival haemorrhage; and
(vi) that Mrs HL said that she had accidentally hit her nose on something a few weeks previously.
So far as the first count is concerned, Mrs HL had given evidence that after the Appellant removed the wooden object he had inserted in her vagina, she had to go and see a doctor because she was bleeding. A little later she said that the reason she went to the doctor was because she was bleeding twice a month instead of the usual menstruation period. She could not remember how long after the incident the visit to the doctor was.
Unusual vaginal bleeding provides some evidence that something untoward had occurred in or about that area of a woman’s body. Thus Mrs HLs’ evidence in this respect, and which was given in terms which suggests that the bleeding and visit to the doctor occurred soon after the alleged incident with the wooden ornament, was admissible. Because of the history to which Dr Mach deposed and the passage of time between the suggested offence and the visit to him, had his evidence stood alone, I doubt if it was admissible. However, against the background of that given by the Plaintiff it was. Notwithstanding the differences, in part what Dr Mach said was confirmatory of the evidence Mrs HL had given and in any event there is much to be said for the view that the Crown was under an obligation to call Dr Mach to ensure there was before the jury evidence contradictory of that given by Mrs HL suggesting that the incident with the ornament had necessitated almost immediate medical treatment.
I would incline to the view that, nevertheless, some of the evidence given by Dr Mach concerning his vaginal examination was inadmissible. Given there was nothing by way of evidence or common experience to link up the blocked gland to which Dr Mach referred with any actions said to have been performed by the Appellant, Dr Mach’s evidence concerning the gland probably fell into this category. This becomes clearer once one has regard to Dr Mach’s explanation that a blocked gland “could happen like a cyst on a face or something like that, I don’t know what, or any other causes”. However, none of the evidence which might fall into this inadmissible category was significantly prejudicial and, not having been the subject of objection to its admissibility, the Court should either apply rule 4 so as to preclude the Appellant relying on the point or apply the proviso to s6 of the Criminal Appeal Act.
For similar reasons, Judge Tupman’s directions do not take the Appellant’s claim for relief on this ground further. After pointing out that the Crown advanced Dr Mach’s evidence in this regard as supportive of Mrs HL’s evidence, Her Honour went on to suggest that the jury might regard Dr Mach’s evidence as of matters too long after the event the subject of the first count to have any connection with it and that there might well be some other explanation for Mrs HL’s gynaecological symptoms.
So far as the second count is concerned, Mrs HL gave evidence to the effect that on an occasion in February 1996 the Appellant punched her once in the face causing her to bleed in her nose and her eye to be swollen and bruised. Later she seemed to suggest there had been 2 punches. Thereafter every time she and the Appellant had an argument - there being a few days or weeks in between - there were similar incidents.
In her directions to the jury, the trial judge said that the jury could use the evidence of Dr Mach of observing old blood in Mrs HL’s nose and a conjunctival haemorrhage as supportive of that part of Mrs HL’s allegation claiming that she had received a bloody nose and some injury to her eye and face as a result of being punched by the Appellant on the occasion the subject of the second count. However her Honour also went on to say that on the other hand the jury might think that because of the time that had elapsed between February and the examination on 30 April, Dr Mach’s evidence did not tend to support the complaint.

In fact there was no evidence that the blood and conjunctival haemorrhage of which Doctor Mach spoke could have been a result of an assault as long as 2 to 3 months previously and again common experience is not such as to fill the gap. Certainly the jury could be expected to have some experience of blood in a nose but that experience would be that blood in that area does not remain for 8 weeks. On the same grounds the jury could not conclude that the conjunctival haemorrhage seen on 30 April could have been caused in February.
It follows that the trial Judge should not have told the jury that they were “entitled to use this evidence as supportive of that part of Mrs HL’s allegation claiming that she received a bloody nose and some injury to her eye and face as a result of being punched by the accused on this occasion” - i.e. that the subject of the second count. However, her Honour’s later direction, echoing the ground upon which in my view the evidence was inadmissible, make it likely, perhaps very likely, that the jury would not have regarded Dr Mach’s evidence in this regard as significant as indicative of the assault the subject of the second count.
In any event, there was before the jury the evidence of Mrs HL of later blows by the Appellant, similar to that which was the subject of the second count. The admission of this evidence was not the subject of appeal. Given that there was a clear issue at the trial why no complaint had been made earlier than the evidence indicated, this evidence was clearly admissible. Dr Mach’s evidence tended to support Mrs HL’s evidence concerning these blows and once her evidence as to these was admissible, error by her Honour as to the particular incident which Dr Mach’s evidence supported can not reasonably be thought to have prejudiced the Appellant.
Ground 3 - Her Honour erred in admitting the evidence of “complaint” by TP
The foundation for this ground was said to be a failure of the evidence to satisfy the requirement in s66(2) of the Evidence Act that, for evidence of a representation to be admissible under that sub-section, the occurrence of the asserted fact must have been “fresh in the memory” of the person who made the representation.
The evidence the subject of this ground was given by a Constable Sharp. On 7 August 1996 she had attended a refuge as “a victim support officer” and there had conversation with TP. That conversation was, according to Constable Sharp in the following terms:
“Q What did she tell you?
AShe told me that a man had moved in with her and her mum and her brother, about 6 months prior to that date. He was living with them at first as a boarder. I believe her mother had put an ad. in a paper or something, to have someone live there. He would touch her, he would touch - she would say in her private area. She said that he would touch the mother, he would touch the mother when TP was there, when JP was there. When TP was in the same bed as the mother. He would in her words, “stick things up her private parts” and that of her mother while they were in the same bed. She also said that he would do bad things to her top and while she was in the same bed as the mother and then he would do bad things to her mother’s bottom at the same time. She said that he would make them watch pornographic videos. He would make them touch him while he was watching it and he would touch them also. This happened a lot with JP she said.
QIs there any reference during this conversation to any type of physical violence?
AHe would hit her. He would hit the mother a lot. I don’t recall him hitting JP, just that he used to touch JP and get JP to touch him. There was a lot of slapping and sort of hitting.”
There are a number of matters of complaint in this evidence. Those referred to in the first answer, of incidents when Mrs HL and TP were in bed with the Appellant - as I would infer was the location of all of the matters referred to except those in the last 3 sentences of the answer - commenced, according to evidence given by Mrs HL, in June 1996, i.e. about 2 months previously. Although such a period is, of course, significantly longer than the “hours or days” referred to by the majority in Graham v R (1998) 157 CLR 404 in the passage quoted by Sully J, particularly when regard is had to the nature of those complaints, I would draw the inference that those asserted representations were fresh in the memory of TP at the time of her conversation with Constable Sharp.
Mrs HL gave evidence that the watching of pornographic videos, at least by TP commenced after the latter had been involved in bedroom activities. I would thus reach the same conclusion in respect of representations concerning these as I did in the immediately preceding paragraph.
It is clear from other evidence in the case that the hitting of Mrs HL, referred to in the second answer quoted, went back further than May - possibly to February 1996, a period of 6 months. Certainly there is nothing in the quoted statement or other evidence in the case to suggest that TP was speaking of a more limited period. Uninstructed by the remarks of the majority in Graham v R, and in particular in light of the repetition of hitting which the evidence suggests, I would again incline to the view that, in the circumstances of the case, the requirement of s66(2) of the Evidence Act that “the occurrence of the asserted fact was fresh in the memory of the person who made the representation” was met. However, with respect to those who think otherwise, I do not feel able to reconcile that view with what was said by Gaudron, Gummow and Hayne JJ in Graham v R. The statement is not susceptible of being broken up so as to limit it to more recent events and in my view, insofar as the second answer refers to hitting Mrs HL, it was inadmissible.
I take the same view in relation to the other parts of that answer. Although the evidence is not as clear as it might be, activities involving JP which were the subject of charges seem to have commenced in May. However the direct evidence concerning these was of Mrs HL, at the requirement of the Appellant, touching JP in one way or another, not of touching between JP and the Appellant. There is nothing to indicate that the touching referred to in the second answer was limited to a period where it was likely to have been “fresh in the memory” of TP.
Of course, that answer might have become admissible in consequence of the actions of defence counsel in the presentation of the Appellant’s case but, given that defence counsel’s attitude was probably influenced by what evidence the trial judge decided to let in, it seems to me unproductive to pursue that topic. In any event, the conclusions at which I have arrived and recorded in the next paragraph make it unnecessary to do so.
In terms of importance, by far the largest part of the evidence of complaint given by Constable Sharp was admissible as truth of the matters complained of. That which was not fell within a relatively small compass and, compared with the other evidence in the case, or indeed only that given by TP, must have been inconsequential. It is impossible to believe that the jury’s acceptance of the evidence of TP and her mother can have been influenced by such of the complaint evidence given by Constable Sharp as was inadmissible as truth of the facts asserted
Ground 4 - Her Honour erred in admitting evidence of “complaint” by Mrs HL.
Again, what was relied on was a suggested failure to satisfy the requirement that the occurrence of an asserted fact must have been “fresh in the memory” of the person who made representations.
The complaints by Mrs HL were to three witnesses, Mrs Hobson, Miss Thao and Mrs Thi Y Dao. The terms and circumstances of these are set out in the Reasons of Sully J. His Honour’s account of the representations made by Mrs HL to Mrs Hobson make it clear that the representations to her were, within s66(2) of the Evidence Act “fresh in the memory”. So far as the complaint to Mrs Hobson is concerned, the ground fails.
The same may be said in the case of the representation “He hit me” made to Miss Thao. The further statement, “He always hit us.” is not as readily dealt with.
One may accept that the expression “always” does not mean continuously but it must mean regularly and over some period, in the context here, extending to the time of the statement. It seems to me that the statement was a representation that regularly throughout that period the Appellant hit TP and one or both of her mother and brother. The “always” word does not, of itself, indicate how far back the period being spoken about extended but clearly embraces some, and I would infer, some appreciable period. In the context of the relationship between Mrs HL and the Appellant the period being referred to may again have extended as far back as February 1996, which was the time referred to in the first count. I have already indicated my view that, in terms of what the majority of the High Court said in Graham v R, an event six months before cannot be said to be “fresh in the memory” and I am unable to see how, without more, one can conclude that the start date of the period implicit in the statement was “fresh in the memory” of the maker of the statement.
In light of that conclusion, and the terms of s66, the statement “he always hit us” was inadmissible.
The third witness whose evidence of complaint by Mrs HL was admitted was Mrs Dao. Again there is a lack of definition of the time when the events recited were said to have occurred although there is not the statement that the events happened “always”. Other evidence as to the timing of events which involved TP, would indicate these had happened but about 2 months earlier and I have indicated that I regard statements within this period as sufficiently fresh. Although Mrs HL’s evidence indicated that some hitting, and the use of fake penises may have, extended as far back as February, the terms of the conversation with Mrs Dao suggest to me that in that conversation, Mrs HL was talking of events which were fresh in her memory. I regard evidence as to the conversation with Mrs Dao as admissible.
Ground 5 - Her Honour erred in her directions to the jury as to the use the “complaint” evidence of TP and Mrs HL could be put.
In this connection, Her Honour firstly drew to the jury’s attention the evidence of Mrs Hobson, Mrs Dao and Constable Sharp, but not that of Mrs Thao to which I have referred and told the jury that they could use this evidence, together with their failure to complain earlier, in assessing the credibility of Mrs HL and TP. Secondly, her Honour told the jury that they were entitled to take the evidence of complaint into account as evidence of the truth of what was complained of. Her Honour had earlier directed the jury that the complaint evidence could not be used as corroboration of the evidence of Mrs HL and TP because “a person cannot corroborate themselves” (sic).
To the extent to which the evidence of complaint was admissible, there is no error in these directions. However in light of my conclusion that not all of the evidence of complaint should have been before the jury her Honour’s directions meant that the jury were invited to use inadmissible evidence as evidence of the truth of matters asserted in it. There was therefore error.
No objection to the summing-up in this regard was taken. More important for present purposes however is the significance of the error. Firstly, it had not been suggested to any of the 3 witnesses mentioned, that the statements of Mrs HL and TP about which they gave evidence had not been made. Secondly, demonstrably the worth of the statements depended on the truthfulness of Mrs HL and TP. Thirdly, and again, demonstrably, the jury could not convict the Appellant unless satisfied of the truthfulness and reliability of Mrs HL and, to a lesser extent, TP. So far as Mrs HL was concerned, Her Honour had indeed made this clear to the jury on numerous occasions both when dealing with individual counts and after dealing with the Appellant’s evidence. At that stage her Honour told the jury that “you would not be entitled to convict the accused unless you were satisfied of the truth of HL’s evidence beyond reasonable doubt as it relates to every count in the indictment”. Her Honour tended to treat TP’s evidence as, if anything, corroborative of that given by her mother rather than as possibly determinative in its own right.
When regard is had to all of the matters to which I have referred, and the weight of the direct evidence of Mrs HL and TP which was before the jury, the error in the admission of some of the pre-trial statements of these two witnesses and the use to which her Honour said that these statements could be put pales into insignificance.
Grounds 6 - Her Honour erred in admitting tendency evidence
Ground 7 - Her Honour erred in her directions as to the use to which evidence relating to criminal acts not charged in the indictment might be put by the jury.
The evidence the subject of these grounds of appeal is referred to in her Honour’s directions to which exception is taken. It is, I think, necessary to quote what her Honour said:-
“The second basis on which the evidence of sexual contact on other occasions between the accused and Mrs HL and TP involving the use of objects, either sex aids, various household items or carrots, is led is to show other conduct on the part of the accused or a tendency to act in a particular way on other occasions from which you are invited by the Crown to come to the conclusion that the accused committed the relevant specific offences contained in the indictment and for this purpose those relevant specific counts are count 1, count 6, count 7. You are entitled to take this evidence into account in this way, that is evidence that shows other conduct on the part of the accused, or a tendency to act in a particular way, that is involving the use of objects, and you are entitled to come to the conclusion, by taking that other evidence into account, that he in fact committed the offences charged in counts 1, 6 and 7 but there are some specific matters of which I must warn you.
First of all you would only be entitled to use the evidence in that way if you are satisfied beyond reasonable doubt of the truth of the general allegations made by Mrs HL.
Second, because the evidence is of a circumstantial nature you would not only have to be satisfied beyond reasonable doubt that the evidence is true but also that there is no explanation for this behaviour which is consistent with the innocence of the accused of those three specific charges in the indictment.
In relation to this tendency the Crown also relies on the presence of those objects found in the flat by the police as tending to show that the accused had a tendency to act in a particular way on other occasions. You will remember, in this regard, that the police officers attended at the home unit on 15 August. They gained access to the red toolbox and in that red toolbox they discovered the various items that have been referred to as sex aids, vibrators, penis sheath, false penis and one other item and they also, in the flat, took possession of the Brut bottle, the wooden statue, the bobbin or cotton reel item and those other items that have been referred to by Mrs HL as having been used by the accused on more general occasions, excluding the wooden statue, to insert into her vagina. The Crown relies on the possession of the accused of these objects and the finding of them in the unit in the way the evidence discloses as also showing a tendency on the part of the accused to act in a particular way.
You would be entitled to take that evidence in regard as establishing that tendency but only if you were satisfied beyond reasonable doubt of the truth of the allegations that Mrs HL made about these other items being used by the accused in the way she said and, further, only if you were satisfied that there was no other explanation consistent with the innocence of the accused for them being found.
In relation to this later aspect you will remember that the evidence of the accused was that he agreed that the sex aids were his and that he had owned them for some two to three years before 15 August. He maintains that they were never used at all and certainly not used whilst he was living with Mrs HL at Lakemba. His evidence in relation to having those objects was that on an earlier occasion, some time previously, he had had a joke with a female acquaintance and bought her a vibrator, at her request, for her birthday as a bit of a joke and as I understand his evidence that thereafter he bought these other objects, the vibrators, for similar purposes.
Further, in relation to these sex aids, the Crown submits that you would regard, as supportive of Mrs HL’s contention, in general terms that these objects were used on her to penetrate her vagina.”
Her Honour then made reference to some evidence concerning findings of DNA and the significance of these and continued:-
“On the other hand you might be of the view that the DNA evidence is inclusive or that there is some other explanation for the DNA material which could be that of Mrs HL being on the vibrator which is consistent with the innocence of the accused.
As I have said, in order for you to use the more general sexual evidence and the evidence on the finding of the sex aids and the other household items which Mrs HL claims were used on her in sexual manner, as evidence of a tendency on the part of the accused to act in a particular way, you could only do that if you were satisfied beyond reasonable doubt of the truth of Mrs HL’s allegations and, further, if you were satisfied that there was no explanation consistent with the innocence of the accused for his use of these implements.
The Crown relies on the possession of the accused of these objects and the finding of them in the unit in the way the evidence discloses as also showing a tendency on the part of the accused to act in a particular way.
You would be entitled to take that evidence in regard to establishing that tendency but only if you were satisfied beyond reasonable doubt of the truth of the allegations that Mrs HL made about these other items being used by the accused in the way she said and, further, only if you were satisfied that there was no other explanation consistent with the innocence of the accused for them being found.”
The DNA evidence was to the effect that DNA which may have been that of Mrs HL was found on the wooden ornament and one of the vibrators. Both objects also contained some DNA which was not hers. So far as the tests which were done went, the DNA which might have been hers, according to the evidence, is found in one person in 21,000 of the general Australian population, one in 11,000 of persons of Chinese origin and one in 7,000 of persons of Korean origin. Figures for persons of Vietnamese origin were not available. Mrs HL referred to herself as Vietnamese.
Her Honour had earlier also told the jury that they could use the evidence referred to in the passages quoted and other evidence as indicating the general relationship between the Appellant and members of his household and no exception is taken to that direction or to the admissibility of the evidence referred to in that context. In effect the complaint is that expressed in ground 7.
To place the remarks of her Honour in context it is convenient to refer to the details of the case a little more fully. The first count of the indictment was concerned with an incident in which Mrs HL contended that the Appellant had inserted in her vagina the wooden ornament referred to by her Honour. Count 7 was concerned with an incident in which Mrs HL claimed that, at the instigation of the Appellant, a carrot had been inserted in TP’s vagina. Count 6 was concerned with an attempt by the Appellant to achieve a similar result. Mrs HL had given evidence to the effect that the Appellant had inserted in her vagina on occasions not the subject of charges the remaining objects referred to by her Honour and others of a similar nature. The Crown obtained from Mrs HL evidence that she did not want the Appellant to use them but that “he persuaded me and he explained to me that they were used to give me some new sensations and if I resisted or refused he would hit me”.

Her Honour’s direction that the jury could take into account the Appellant’s possession of the objects to which she referred as showing a tendency on the part of the Appellant to act in a particular way only if the jury was satisfied that there was no other explanation consistent with the innocence of the Appellant for them being found strikes me as pointless. The jury could not possibly have been satisfied that there was no explanation consistent with innocence for the presence in a domestic household of a bottle of after-shave lotion and a cotton-reel. Indeed Mrs HL seems to have said that the after-shave lotion was for the Appellant, as distinct from herself, to use. Similar comments may be made in relation to the sex aids. Such objects are available through some retail outlets or responses to advertisements in magazines and there could be no justification for the jury concluding that possession of them demonstrated participation in forced or criminal sexual activities and was inconsistent with innocence.
The same remarks may be made concerning her Honour’s directions in relation to Mrs HL’s evidence to the effect that the Appellant had used such objects. Of course, if the jury accepted Mrs HL’s evidence that the wooden ornament had been used on the occasion the subject of the first charge, then there was no need to resort to her evidence as to the use of these objects on other occasions, at least so far as that charge was concerned. But, assuming the jury accepted Mrs HL’s evidence as to that use on occasions not the subject of the charges, they could not possibly “be satisfied beyond reasonable doubt that … there is no explanation for this behaviour which is consistent with the innocence of the accused on those three specific charges in the indictment”. To consider but the identity of the participants, there is a radical difference between the situation of a man and woman living as husband and wife and that of the man and a daughter, particularly a young daughter of that “wife”. Explanations for conduct with Mrs HL consistent with the Appellants’ innocence in respect of the charges involving TP is that Mrs HL was living as his wife and TP was not and that TP was young and Mrs HL’s daughter. And use of such objects on some occasions is perfectly consistent with the incident the subject of the first count never having happened or, as it seems to have been the first such occasion, Mrs HL being persuaded, however reluctantly, to consent on that occasion.
The evidence concerning the objects and their use in sexual activities other than those the subject of charges should not have been left to the jury in the terms that it was. Indeed if the law required her Honour to direct the jury in the terms she did, the issue of tendency arising from the evidence referred to in the passages I have quoted should not have been left to the jury at all.
There can be no doubt that the evidence to the effect that the Appellant inserted the various objects in Mrs HL from time to time tended to show that the Appellant had a tendency to act in a particular way, viz. insert inanimate objects in her vagina and, it may be inferred, vaginas generally or, at least, those available to him. Counts 1, 6 and 7 involved that sort of activity and the evidence was therefore relevant and, if not excluded by, or pursuant to other sections of the Evidence Act 1995, admissible - s56. In that activity of that nature might not be thought to be common, such evidence also had significant probative value and was thus not rendered inadmissible by s97 of the Act or unavailable for use as tendency evidence - see s95. (It was accepted that the notice requirements of s97 had been met.)
However, s101 imposes a further requirement which had to be satisfied. So far as is presently relevant, that section provides that in criminal proceedings:-
“(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against a defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.”
The operation of that provision has been the subject of consideration on a number of occasions, one of which was the decision of this Court in R v AH (1997) 42 NSWLR 702. At p 709, Ireland J, with the concurrence of the other members of the Court said:-
“Section 101(2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person thinks that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of the particular case: Pfennig v The Queen (1995) 182 CLR 461 at 488. As such evidence is circumstantial in nature, the Crown must establish that there is no reasonable view of the evidence available which is consistent with the innocence of the accused: Pfennig (at 483-484, 485): that is what is required by S101(2): R v Lock (1997) 91 A Crim R 356 at 363; R v Foley (CCA, 5 June 1996, unreported) at 8.”
In Pfennig v R (at 482-4) Mason CJ, Deane and Dawson JJ said (omitting references):-
“Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect and, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.
… that evidence as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out … that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed.”
In Hoch v R (1988) 165 CLR 292 at 296, Mason CJ, Wilson and Gaudron JJ had taken a similar view in respect of similar fact evidence:-
“In Sutton (1984) 152 CLR 528 at 564 Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.”
In Gipp v R (1998) 194 CLR 106 at [76], McHugh and Hayne JJ seem to have accepted this view (I again omit references):-
“If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of a “guilty passion” in support of the charges in the indictment. In that event, it would have been necessary to direct the jury that these incidents as well as the charges had to be proved beyond reasonable doubt.”
These cases in the High Court were, of course, decided in terms of the common law and, although the terminology used in sub-section 101(2) is virtually identical to that employed in the High Court cases from which I have quoted, I must confess it does not seem to me that one should too readily transfer statements made in that context to the terms of the sub-section or substitute the tests adopted at common law for the terms of the Evidence Act.
In the first place, the scheme of the Evidence Act in making logically probative evidence admissible unless excluded, apparent in the terms of ss55, 56 and, for example, ss97 and 101, is arguably different from that taken by the common law in relation to the admission of similar fact or propensity evidence. - see the discussion of the topic in Pfennig v R (supra) at 475-9 and 512. Secondly, the concept of probative value outweighing or substantially outweighing the prejudicial effect of evidence is to be found not only in s101(2) but also in sections 135 and 137. The rationale of the majority in Pfennig v R to the effect that
“Only if there is no (rational view of the evidence that is consistent with the innocence of the accused) can one safely conclude that the probative force of the evidence outweighs its prejudicial effect and, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.”
even if otherwise correct, is not easy to apply in the case of s 135 which clearly does involve the exercise of a discretion, and may have far reaching consequences in the application of s137. The terms of these sections were not before the High Court in Pfennig v R and neither were they considered in R v AH. At least on first impression, their similarity and wording is relevant to the interpretation or operation which should be given to S102(2).
Thirdly, in those High Court cases and indeed most wherein there has been discussion outside the context of the Evidence Act of evidence of tendency, propensity, similar facts or coincidence, the discussion has been against a background where the evidence under consideration has revealed the commission by an accused of other criminal activity, either serious in its own right or serious relative to the charge - Gipp v R (1998) 194 CLR 106, Pfennig v R (1994-5) 182 CLR 461, Hoch v R (1988) 165 CLR 292. Sutton v R (1983-4) 152 CLR 528, Markby v R (1978) 140 CLR 108, DPP v Boardman (1975) AC 421, Harris v DPP (1952) AC 694, Makin v AG (NSW) (1894) AC 57 are examples. Of course I do not suggest that has been the universal situation - see e.g. Martin v Osborne (1936) 55 CLR 367.
Commonly that other criminal activity has been regarded as greatly prejudicial and many of the statements in the cases have to be considered with that background in mind. Sub-section 101(2) applies to situations where the conduct sought to be tendered is non-criminal, criminal but only slightly prejudicial, and criminal and gravely prejudicial. The conduct may be slightly or strongly probative. Against that background, the reference in the sub-section to probative value substantially outweighing prejudicial effect seems to me to require a judgement or weighing exercise quite different from the approach taken in the terms of the High Court cases from which I have quoted.
I confess also to sharing the difficulty McHugh J had in Pfennig v R in understanding the logic behind the principle. At least as expressed in R v AH it seems to say that admissibility depends upon the circumstantial evidence of similar facts, of itself, demonstrating guilt. If the common direction that a jury may not convict in reliance upon circumstantial evidence unless guilt is the only rational inference in the circumstances is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt - Shepherd v R (1990) 170 CLR 573 at 578 - and it is only essential ingredients of each element of an offence that must be proved to that standard - Shepherd v R at pp 575, 580 & 594, Gipp v R (1998) 194 CLR 106 at [79], per McHugh and Hayne JJ, R v Pantoja (unreported CCA, 5 November 1998) at p 31-33, R v Merritt [1999] NSWCCA 29 at [70] R v Kotzmann [1992] 2 VR 123, c.f. Penney v R (1998) 72 ALJR 1316 at [26] - it seems somewhat illogical to say that evidence of subsidiary facts, albeit involving criminality - as propensity, tendency or similar fact evidence is both often and in this case - may only be given if there is no reasonable view of that evidence consistent with innocence.
Here perhaps the first, but more particularly the sixth and seventh counts, were of conduct which might fairly be described as bizarre. Evidence of the sex aids and other objects and of their use may reasonably be regarded as indicative of an unusual interest in the Appellant in the insertion of inanimate objects in vaginas. The evidence had, within s 101(2) of the Evidence Act, substantial probative value. But Mrs HL’s evidence of the use of these items was accompanied by evidence (as in practical terms it had to be if the Crown case was to stand up) that she was forced to endure them. The evidence concerning the items and their use was thus prejudicial. It was no more prejudicial than the evidence of Mrs HL and TP as to the incidents the subject of a number of the charges but it was prejudicial.
If I felt entitled to apply s101(2) in accordance with its terms, I would regard the probative value of this evidence as substantially outweighing the prejudicial effect. However, as I have indicated, I by no means regard the evidence as so strong that “there is no reasonable view of (it) consistent with the innocence of the accused”.
In this case, the correctness of the remarks in R v AH was not the subject of challenge and in these circumstances, I do not feel entitled to depart from them and to apply s101(2) in accordance with what seems to me to be its terms. Applying those remarks, my conclusion is that s 101(2) precluded the evidence of the sex aids and their use being used as tendency evidence.
The question then arises whether, having regard to the terms in which her Honour directed the jury in relation to the tendency evidence, the fact of it being left to the jury matters. In my view it does not. There is no reason to think that the jury would not have applied her Honour’s remarks in the terms they were expressed. Had they done so, for reasons set forth above, they would not have used the evidence of the sex aids and Mrs HL’s evidence as to their use as indicating tendency on the part of the Appellant. The evidence was properly before them on another basis so there is no legitimate complaint that its mere presence was sufficient to invalidate the verdict. These ground of appeal are not made out.
Ground 8
Her Honour erred in relation to the use to which the evidence of Mr Rudolf Weigner could be put by the jury
On this ground, I agree with Sully J.
The Result of the Appeal
Although there were, in my view, errors in the conduct of the trial, both in terms of the admission of evidence and in her Honour’s instructions to the jury, when considered against the weight of the evidence and the directions which were given, the case seems to me to be a clear one for the application of the proviso to s 6 of the Criminal Appeal Act. Accordingly, I agree with the order proposed by Sully J.

IN THE COURT OF
CRIMINAL APPEAL

60556/98

SULLY J
HULME J
HIDDEN J
7 March 2000

Regina v Vinh LE

Judgment

HIDDEN J: I have had the benefit of reading the judgment of Sully J. I agree with the order which his Honour proposes and with his reasons. I wish to add a comment of my own about the grounds relating to the evidence of complaint.
On the Crown case, the three victims had been subjected to a pattern of abuse over a period of about six months. Particularly is this so of Mrs HL and TP. What Mrs HL said to Mrs Dao (pars 45 to 46 of the judgment of Sully J), and what TP said to Constable Sharp (pars 49 to 50), amounted in each case to a complaint about that pattern. That is commonly the form of complaint in cases such as this, and the victims do not usually recount specific incidents.
It is for this reason that s66 of the Evidence Act does not always sit easily with evidence of complaint in sexual cases. Nevertheless, it would be absurd if the section could never apply to complaint of a pattern of behaviour when that pattern has continued up to, or near to, the time at which the complaint was made. Whether the evidence would be admissible under the section might depend upon the terms of the complaint and the length of time over which the abuse is said to have occurred. Obviously, each case must be judged according to its own facts.
It is sufficient to say that the evidence in the present case was properly admitted under the section, even though it encompassed events which had occurred some months prior to the complaint. It follows that her Honour’s directions about the evidence were appropriate.
I have also had the benefit of reading the judgment of Hulme J. I agree with his Honour that, in an appropriate case, this Court may need to re-examine the extent to which the common law principles enunciated in Pfenning are applicable to s101(2) of the Evidence Act. However, this is not that case.
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LAST UPDATED: 19/07/2000