R v TAB - [2002] NSWCCA 274

CITATION: R v TAB [2002] NSWCCA 274

FILE NUMBER(S): CCA 60837 of 2000

HEARING DATE(S): 5 & 7 December 2001, 1 March 2002

JUDGMENT DATE:
16 July 2002

PARTIES :

REGINA
v
TAB

JUDGMENT OF: Mason P at 1; Sully J at 2; Levine J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/0030

LOWER COURT JUDICIAL
OFFICER : Bellear DCJ

COUNSEL :
MC RAMAGE QC
(Appellant)
EA WILKINS
(Crown)

SOLICITORS:
DJ HUMPHREYS
(Appellant)
SE O'CONNOR
(Crown)

CATCHWORDS: Criminal law - sexual assaults - relationship evidence - complaint evidence - admissibility - evidence of prior good character - jury - verdict taken before question answered or further directions given - principles

LEGISLATION CITED: Crimes Act 1900
Criminal Records Act 1991
Evidence Act 1995

CASES CITED:
BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
Hoch v The Queen (1988) 165 CLR 292
KRM v The Queen (2001) 75 ALJR 550
Papakosmas v The Queen (1999) 196 CLR 297
Pearce v The Queen (1998) 194 CLR 610
R v Peake (1996) 67 SASR 297
R v R SCCRM-98-45, SCCRM-98-46 (17 June 1998)
Regina v AH (1997) 42 NSWLR 702
Regina v Beserick (1993) 30 NSWLR 510
Regina v CJ Knight (NSWCCA, unreported 18 December, 1990)
Regina v Cole (NSWCCA, unreported, 29 March 1994)
Regina v Dann [2000] NSWCCA 185
Regina v Hudson (NSWCCA, unreported, 30 July 1998)
Regina v JR Thompson (NSWCCA, unreported, 18 June 1996)
Regina v Marsh [2000] NSWCCA 370
Regina v McCormack (1995) 85 A Crim R 445
Regina v MJR [2002] NSWCCA 129
Regina v RM Fraser (NSWCCA ,unreported, 10 August 1998)
Regina v Robinson [2000] NSWCA 59
Regina v Salama [1999] NSWCCA 105
Regina v Todd (1982) 2 NSWLR 517
Regina v Wheeler (NSWCCA, unreported, 16 November 1989)
Ryan v The Queen [2001] HCA 21; (2001) 179 ALR 193
Saraswati v The Queen (1990 -91) 172 CLR 1
Wilson v The Queen (1970) 123 CLR 334

DECISION: Conviction appeal dismissed; sentence appeal - leave granted, appeal dismissed. See paragraph 118

- 64 -

60837 of 2000

MASON P
SULLY J
LEVINE J
16 July 2002

REGINA v TAB

Judgment

1 MASON P: I agree with Levine J.

2 SULLY J: I agree with Levine J.

3 LEVINE J: The appellant (born 29 January 1935) stood for trial in the District Court at Parramatta before his Honour Judge Bellear and a jury having pleaded not guilty to an indictment containing six counts. The counts were: counts 1,2 and 5, indecently assault female under the age of 16 years (s76 Crimes Act 1900, maximum penalty imprisonment for 6 years); count 3, carnal knowledge by father of female under the age of 17 years (s73, maximum penalty 14 years); count 4, buggery (s79, maximum penalty 14 years); and count 6, commit act of indecency on female under the age of 16 years (s61E (2), maximum penalty imprisonment for 2 years).

4 The appellant was found guilty on all counts and was sentenced on each of counts 1, 2 and 5 to a fixed term of imprisonment for 2 years from 11 August 2000; on count 3 to a fixed term of imprisonment for 4 years to commence on 11 August 2000; on count 4 a head sentence of 7 years was imposed to commence on 11 August 2000 and a non-parole period of 4 years was fixed commencing on that date to expire on 10 August 2004; on count 6, to imprisonment for 9 months by way of fixed term to commence on 11 August 2000.

5 The trial from the outcome of which the appellant appeals commenced before his Honour and the jury on 3 August 2000. It was the third trial, the earlier two having aborted on preceding days. The trial giving rise to the appeal was conducted with a remarkable lack of complication. The explanation for this lies in various matters which were raised before his Honour in the antecedent aborted second trial. The position of the parties was that “rulings” made by his Honour in connection with the second trial would apply to the third trial. It is, inter alia, those “rulings” which give rise to many of the grounds of appeal.

Course of trial - evidence

6 The Crown case was as follows (based upon its useful summary). The complainant, CPB, (born 7 February 1966) was the natural daughter of the appellant, TAB. In 1974 she moved to Numa Road, North Ryde, with her parents and her younger sister, SAB, (born on 15 February 1971).

Count 1

One day in 1977, before Easter, the appellant, while the complainant’s mother (PJA) was at work, put SAB outside to play and locked the door. He shut the curtains and pulled down the blinds. He sat on the lounge without any trousers or underpants and told the complainant to kneel in front of him. He guided her hands around his testicles and told her to rub his erect penis, which had Vaseline or baby oil on it. The appellant then told her to suck his penis and he put her hand around his testicles to rub there at the same time as she had her mouth over his penis. He told her she had to swallow, because it made a man feel good and feel like a real man.

The appellant told the complainant not to tell her mother because she would not like it and she would be upset with her. She did not know that it was wrong, just that she did not like it. The appellant did not intimate that it was wrong, but rather implied that her mother was snobbish and that she would not like it. Similar incidents occurred a number of other times in the same room, but not more than ten. They occurred about once every couple of weeks. The appellant always used Vaseline or baby oil and he always sent SAB into the yard or to the neighbours two doors down, the Robsons.

Counts 2, 3 and 4

At Easter time the complainant’s mother went away for the weekend to the Bathurst Motor Bike Races. SAB was sent outside and the Appellant closed the curtains in the lounge room and the bedroom. He told the complainant to get undressed and to lie on the bed on her back. He started sucking her breasts in turn and asked her which one was more sensitive. He said that women usually have one breast more sensitive than the other and then he started to rub her vagina with his hands and then his penis. Eventually she told him her left breast was more sensitive, not because it was, but to stop him from asking her. He got up to get the Vaseline from the bedside table and put some on his penis. He lay on top of her and put his penis in her vagina. This hurt her and she felt squashed under him and could not breathe properly. It seemed to go in about halfway. He then put his penis in her anus. After the appellant took his penis out of her anus she went to the toilet. When she wiped her vagina there was blood on the toilet paper. She thought she was having her first period but that did not occur until the following year. She did not wipe her anus.

Similar incidents happened on two or three other occasions prior to the appellant leaving the Numa Road home. Her parents’ relationship was deteriorating and the appellant told the complainant that her “mother wouldn’t go to bed with him anymore and that a man needed to have it and that he loved [her] very much, that’s why he was doing this to [her] and that…it was an educational thing…that he was teaching her how to please a man” .

After the appellant left the family home the complainant did not see him for a few months. In early 1979 she moved to Starkey Street, Forestville with her mother and sister. Her father then lived in a converted garage at Jersey Road, Wentworthville. It was about the size of a two-car garage, lengthwise. She visited him there from 1979 until sometime in 1982 when she convinced her mother that she had too much homework and that she would be better off staying at home to do her studies. She was supposed to go every second weekend but the appellant was unreliable so she went between 15 and 20 times a year, staying overnight every second or third visit. There was one double bed. The appellant slept on one side, SAB on the other side, and the complainant slept in the middle.

Count 5

At Wentworthville in 1979, after SAB was asleep, the appellant touched the complainant on the vagina. She had her pyjamas on when she got into bed and did not know how they were removed. The appellant rubbed her very lightly on the vagina at first and then firmer and faster until she had an orgasm. He then had her masturbate him until he had an orgasm.

Similar incidents of mutual masturbation occurred every time she stayed overnight until 1982 when she stopped visiting him in Wentworthville.

Count 6

Between late 1981 and very early in 1982 there was an incident where she put her hand on his penis and masturbated him. She did not recall anything else having occurred at the same time.

Sometime in 1981 the complainant spoke to her friend from church and school, Rosalyn Cole, telling her that her father had abused her and was still abusing her. She asked Rosalyn to keep it confidential but Rosalyn told her mother. The complainant also spoke to a friend of her sister’s, Jacqueline Pascoe.

On 15 January 1998 the complainant received a telephone call from her father. He said he had had a phone call from her mother the night before. The complainant asked why he was ringing her and he said, “Oh, I thought this was all swept under the carpet”. She said “I don’t want to talk to you” and he said, “I was young and silly then” . He said, “You wouldn’t cause me any trouble, would you?” and “Think of what you’d have to go through” .

Between 1982 and 1988 the complainant had contact with her father and his girlfriend, Wanda, at Christmas and perhaps one or two other times a year. The appellant would drop into her house about once or twice a year. The complainant liked Wanda so she and her husband would visit occasionally if they were invited. She said she continued to see her father and to send him cards because her family did not know about the abuse. If she cut off contact with him she would have had to explain herself, so she kept contact to a minimum. The appellant did not give her away at her wedding because she refused to let him; she did not know who took the video of her wedding. She agreed that she gave evidence in one of the earlier trials that she did not recall Wanda assisting her father by putting a bed on the floor for her and her sister when they stayed the night at Wentworthville. She did not agree that the bed at Wentworthville was a single bed.

In cross-examination the complainant said that she prepared a nine-page statement at Glebe Police Station on 5 February 1998. There was material that she volunteered to the police that was not put into the statement. She volunteered the material in the committal hearing. She provided an additional statement on 27 July 2000 which clarified some of the things she had said in her statement of 5 February 1998.

She said she was about 14 when she realised what her father was doing was wrong, but she already considered her relationship with her father to be vile, so realising it was wrong did not make any difference. She agreed that she spoke to him on the phone on various occasions and she and her husband attended barbecues with her father and his partner.

The complainant said she had had about ten discussions with Mrs Cole around 1981 – 1982 about the allegations against her father. She had said to Mrs Cole something to the effect: “things happen and I cannot control my body once it gets to that point” and that she, Mrs Cole, had understood what was meant. Rosalyn was not present at these discussions nor was Minister Cole, Rosalyn’s father. Mrs Cole suggested the complainant tell her mother.

The complainant agreed that four cards were addressed to her father. On one card were 18 kisses and 18 hugs, but she did not agree that they were under her name. She agreed that she and her husband sent a number of postcards to her father and his partner, Wanda, from overseas between 1991 and 1996. She agreed that her father took photographs of her between 1991 and 1997, some of them with her children after 1995. She agreed she went to dinner in Chinatown with her father on one occasion but she did not remember the date. She agreed her father provided her with a car when she worked at Qantas.

Jacqueline Pascoe met the complainant around 1980 to 1981. They began having private conversations around mid to late 1981. They spoke about ethical issues as teenage Christian girls. On one occasion when they were discussing sexual behaviour the complainant told Ms Pascoe that her father had raped her. Ms Pascoe asked her if it was more than once and she said “Yes, lots of times”. Ms Pascoe asked when it began and the complainant told her that she was about eight. She told Ms Pascoe that she thought that he had turned to her when his sexual relationship with her mother had broken down, and that they had sex whenever they were left alone in the house together and, after he had left the family home, whenever she had to go to his house on access visits.

Ms Pascoe and the complainant had many conversations over years, or at least over one year, about this issue. On one occasion the complainant told her that she was compelled to go to her father’s house and she was afraid that it would happen again and she would not be able to say no. When Ms Pascoe saw her again the complainant was upset and said that it had happened again, she couldn’t stop him. The complainant’s half-sister, SES, was eleven years older than the complainant. She gave evidence that she visited her father when he lived at Wentworthville a half dozen times. He had a double bed in the centre of the room. It was very cramped.

Rosalyn Davis (nee Cole) moved to Forestville in 1977. Her father was the local Anglican minister there. She became good friends with the complainant and also knew Jacqueline Pascoe. In mid to late 1981 the complainant told her, in effect, that her father had had sex with her a number of times from when she was little. Ms Davis asked if she had told her mother and the complainant said she had not, and swore her to secrecy. The second occasion they spoke about it was at a church youth camp in 1982. The complainant was upset about her parents divorcing, and Ms Davis was confused because she thought it would be a good thing for the complainant. The complainant was also upset because she wasn’t a virgin and she made it clear that this was because of her father.

They had another discussion later in 1982. The complainant was upset about having to go to stay with her father for a weekend. When she came back she told Ms Davis that he had tried to attack her again. The complainant wrote a note to Ms Davis in 1982 in which she referred to a discussion that they had had in Bible study which had upset her because she was concerned that she wasn’t acceptable to God because she was not a virgin and was not pure. Ms Davis was asked about the question in the note “Why?” and Ms Davis said, “Yes, she asks ‘Why did God let this happen to me?’ ” .

Pamela Cole was the mother of Rosalyn Davis and the wife of the Forestville Anglican Minister. The complainant was frequently in her home visiting Rosalyn. The complainant spoke to her one day in the church grounds, or in the house, and told her that she had to go to stay with her father for the weekends and that she did not want to go. She asked Mrs Cole to keep what she said to herself. The complainant told her that her mother insisted that she go and that the reason she didn’t want to go was that her father had insisted in the past that she sleep in a double bed with him. Mrs Cole told her she should tell her mother why she did not to want go but she said she would not tell her mother. They may have had other conversations about this but she did not recall. In cross-examination she agreed that, if the complainant had complained to her about a sexual assault by her father, she would have considered it very serious. She did not agree that she would have told her husband. She said that she considered the complainant “of an age to make a decision”. She would have respected her request.

The complainant’s mother (PJA) was married to the appellant in April 1974 after living with him in a de facto relationship. Shortly after they were married they moved to Numa Road, North Ryde. The appellant worked some of the period they lived there and she worked full-time, both during the day and at night. She employed a babysitter who came to the house some time after school and left around 6-6.30pm. There were occasions when the two girls were left alone with the appellant. In 1976-77 the marital relationship deteriorated badly. In 1977 she went to the Bathurst races for the Easter weekend. Some time in 1979 she and her two daughters moved to Forestville. After the appellant left the house in North Ryde in 1978, he did not see the two girls for about three or four months, and then he saw them periodically mainly on weekends. It was not more than six months until they saw him because there were financial matters relating to the separation that had to be dealt with. The girls often stayed overnight. PJA insisted that they see him because he was their father. They did not have a set arrangement; he saw them at different intervals such as after four weeks, six weeks, eight weeks. When the complainant was in Year 10 or 11 she refused to go. She said it was because she had so much study to do. When the complainant married she had insisted that her father not give her away. In cross-examination PJA agreed that the wedding ceremony had commenced with the wedding party standing in a line in a room at the complainant’s house.

SAB, the complainant’s younger sister, gave evidence that when she and the complainant stayed with their father at Wentworthville they slept in a double bed with him. In cross-examination he said that she remembered seeing Wanda Freeman at the Wentworthville address. She said neither her father nor Ms Freeman ever put bedding on the floor for her and the complainant.

7 The appellant’s case was that none of the incidents alleged ever occurred and that the complaints were fabricated. He sought to show that he had a good relationship with the complainant which had been ongoing. He gave evidence that he did not remember his wife going to the Bathurst races at Easter 1977. When he moved to Wentworthville in 1978 he took only a suitcase. The garage, which had been converted into a granny flat, contained one single bed. He did not see his daughters until the end of 1979. They did not have structured access, but he saw them as often as possible, every few weeks or every month, sometimes every couple of months. They only stayed overnight twice.

On the first occasion that the girls stayed overnight they slept in the single bed and he slept on the floor. Ms Freeman helped to make up a bed of blankets on the floor. Subsequently his landlady told him if they stayed again he could sleep in her front room in her house on the property. The second time they stayed he slept in the front room of his landlady’s house whilst the girls slept in his single bed. The complainant had stopped coming to visit him because of her need to study. They spoke on the telephone often. They had a very good relationship. After she left school and started work she started to come over and they would visit her. She asked his advice about which job to accept. He gave her an unregistered Toyota not long after she started work at Qantas and helped pay for the registration. He took a number of photographs of the complainant and her young family over the years. He photographed the complainant’s son in his backyard at Pendle Hill while Ms Freeman, the complainant and her husband were in the house.

The appellant had met Wanda Freeman in 1974 and was her business manager until 1983 when they commenced a personal relationship. There were a number of social occasions with the appellant and Ms Freeman, and the complainant and her husband. The appellant said he had received a telephone call from the complainant’s mother (PJA). She was screaming and she sounded as though she may have been intoxicated. On 15 January 1998 he spoke to the complainant on the phone. He spoke to her along the lines: “that I thought this was all over with your mother and don’t tell me she’s going to have another crack at me”, referring to financial matters.

In cross-examination he agreed that he was a keen photographer and he liked to take videos. He denied that he ever sent SAB out to play by herself. To his knowledge SAB never went down to the Robsons’ herself. He denied that he told the complainant that he was doing certain things because he loved her and was educating her. He said in cross-examination that the first time the girls stayed overnight at Wentworthville was in late 1979 or early 1980 and the second and last time was in early 1980. He said he was very sick during the whole of 1978 and could not work. He said the bed that he and Wanda made up on the floor was between the bed and the window. Later he said the bed on the floor was alongside the bed, which ran along the wall. The bottom of the bed was approximately 2’ 6” from the doorway. After the complainant stopped going to Wentworthville he saw her when she was available. She went on day trips with him and SAB on rare occasions because she had too much study. He did not know about school holidays. He agreed that he took photographs of the complainant’s son on three occasions over two years but he only took photographs on special occasions. He said that the reason he rang the complainant after her mother had rung him was because she was in contact with her mother all the time and she might know something. He denied that he said the words alleged by the complainant in that phone call. He said that he had more cards from the complainant but he had thrown them out and kept only a few as memorabilia. After viewing the wedding video, the appellant agreed that he was wrong that the wedding party had lined up. They had walked in. He did not agree that the person presiding over the wedding was a Minister of religion.

Wanda Freeman (Majchrzak) was an entertainer when she met the appellant in the mid 1970s. He became her business manager. She visited him when he lived at Numa Road, [North Ryde] and saw the two girls there once or twice. She gave evidence that there was a single bed there. She was there in around 1980 when the girls stayed overnight a couple of times. They slept on the bed and the appellant slept on the floor or at his landlady’s house on the property. She said they made a bed for the appellant near the kitchen. She did not sleep the night there but would come back the next morning.

After Ms Freeman and the appellant commenced a relationship and the complainant was married, there was social contact between the four of them. Between the wedding in 1991 and 1997 there were approximately ten or eleven occasions when the two couples saw each other socially. When the complainant married, the appellant and Ms Freeman received an invitation. She gave evidence that when the complainant started work at Qantas she asked the appellant to help her get a car and he gave her one of his.

In cross-examination she said the appellant was sick on and off during 1978. In 1979 Ms Freeman had a job singing six nights a week. She called in to see him during the day. The job finished at the New Year and did not go into 1980. She said that the appellant did not have the children overnight during that period. She said that when she said, “ I always made the bed up” she only meant the two occasions the girls slept over, which were within a couple of months of each other. After they had slept over the two occasions they told their father that it was not comfortable, they were squashed up, so it was better if they did not sleep there. She said it was the manner of her speech when she said “generally” or “the next morning” and did not indicate that the girls had slept over on more than the two occasions, or that the appellant had slept on the floor on more than one occasion. She agreed that when the police spoke to her on 23 March 1999 at Merrylands Road, Merrylands she told them that the appellant was not at home. She did not agree that she saw a police officer at the front of the house and at the back of the house when she told them she had to go out. She went to the Post Office and when she returned ten to fifteen minutes later the police knocked on the door again. She told them he was not at home and at the same time he called out “Who’s that?” She denied that he had come back in the time she was out. She said that the complainant came to visit right through until she finished school. She disagreed that from early in 1982 the complainant stopped coming to Wentworthville.

Grounds of appeal

8 The first ground of appeal is in general terms to the effect that the trial miscarried. The fourteenth ground of appeal is the notification of leave to appeal against sentence. The following are the substantive grounds of appeal:

(2) The trial judge erred in permitting the prosecution to present an indictment containing a sixth count alleging that between 14 July 1981 and 7 February 1982 the accused had committed an act of indecency upon the complainant, she being under the age of 16, to wit, 15 years.

(3) The trial judge erred in ruling on 31 July 2000 that if the appellant raised character the prosecution was entitled to cross-examine the accused in respect to other allegations.

(4) The trial judge erred in permitting the prosecution to call “relationship evidence”.

(5) The trial judge erred in failing to direct the jury in respect to the “relationship evidence” prior to, during or immediately after the giving of such evidence.

(6) The trial judge erred in his directions to the jury in respect of the “relationship evidence”.

(7) The trial judge erred in permitting the prosecution to lead evidence of “complaints” as prior consistent statements.

(8) The trial judge erred in his directions to the jury in respect of the “complaints”.

(9) The trial judge erred in rejecting the application of the accused for further directions on failure to complain.

(10) The trial judge erred in failing to direct the jury that evidence admissible on one count could not be used in respect to another count.

(11) The trial judge erred in admitting evidence of part of the contents of documents and opinion evidence.

(12) The trial judge incorrectly summed up the evidence of Rosalyn Davis.

(13) The trial judge erred in taking a verdict while a jury question remained unanswered.

As to ground (2) – act of indecency - 6th count

9 There were only five counts in the indictment when the appellant stood for what I gather to have been the first trial on 31 July 2000. The sixth count was included when the appellant was indicted on Wednesday 2 August 2000 and when further indicted on 3 August 2000 (the trial presently appealed from).

10 The sixth charge was that between 14 July 1982 and 7 February 1983 at Wentworthville in the state of New South Wales, he did commit an act of indecency with CPB, the said CPB then being under the age of 16 years, to wit, 15 years.

11 The evidence given by the complainant was:

“Q. During the period of time that you were visiting your father at Wentworthville, do you recall something happening between late 1981 and very early in 1982?

A. Yes, I can recall an incident where I put my hand on his penis and masturbated him.

Q. Do you know on that occasion if anything else occurred?

A. I can’t recall anything else having occurred”.

12 It was argued for the appellant that the act evidenced and relied upon to constitute the offence in the indictment was in fact one which amounted to an indecent assault and, subject to a statutory bar, should have been charged as such pursuant to the law in force at the time namely s76 Crimes Act as opposed to the section under which it was charged namely s61E (2). S78 of the Act, however, prevented any prosecution for such an offence where the complainant was over the age of 14 and under the age of 16 years after the expiration of 12 months from the time of the alleged commission of the offence. It was submitted that the offence here being an indecent assault, the charge of committing an act of indecency could not be brought under the present s61E(2) in an endeavour to avoid the statutory bar provided by s78. The decision of the High Court in Saraswati v The Queen (1990 –91) 172 CLR 1 was relied upon.

13 The subject matter of this charge had been discussed on 31 July 2000 and 1 August 2000 – that is, antecedent to the trial appealed from. As far as one can understand it from the transcript of the former, there was some indication that the Crown Prosecutor was conscious of what I will describe as the Saraswati difficulty. This however appears to have been in the context of the discussion of complaint evidence in respect of which, apparently, on 1 August 2000 his Honour ruled that it was not “fresh in the memory” and would not allow evidence as to that which became the substance of the sixth charge as complaint evidence. As I understood the submissions for the appellant, a further component was that in some way the sixth charge otherwise made admissible complaint evidence which his Honour had previously excluded. This matter (which counsel for the appellant conceded was “perhaps the least of the prisoner’s problems”) was developed with the benefit of hindsight which incorporated not only the substantive trial appealed from but the antecedent proceedings and any “rulings” contained in them. The real issue was whether in the light of the evidence extracted above the appellant had been properly charged according to law.

14 The evidence was of an act which in my view at law did not constitute an indecent assault as there was no assault. This is not a case to which Saraswati applies. Relevantly the facts in Saraswati (leaving aside carnal knowledge) involved the touching of the complainant’s breasts, buttocks and vagina which were held to constitute an indecent assault. Thus the reasoning of the High Court was that the legislation introducing the offence of an act of indecency was designed to cover a gap in the law in which indecent behaviour short of an indecent assault was not an offence (see McHugh J at 24-25). It was not permissible to charge an act of indecency when the matter really was an indecent assault, a fortiori, to circumvent the time bars in s78.

15 The events the subject of the charge occurred between late 1981 and early 1982 when the complainant was 15 years of age, no issue of consent arose and constituted, in my view, an act of indecency for which, in 1974, the Crimes Act was amended (Crimes and Other Acts (Amendment)Act, 1974) to include s61E(2) to cover this very situation. The appellant was properly charged. There is no substance in this ground viewed discretely.

16 As to ground 3, the “character” ruling, this was the subject of subsequent evidence during the course of the appeal, and was a matter of substance. I will return to it in due course.

Grounds 4, 5 and 6 - the relationship evidence

17 On 31 July 2000 there is recorded over pages 11-29 discussion arising from an application clearly made by trial counsel for the accused to have “relationship” evidence excluded. His Honour had available to him a statement made by the complainant, which is amongst the material before this Court, namely that of 5 February 1998. By reference to that statement the Crown agreed to “focus”, as it were, the evidence of the complainant, thus leading his Honour to “rule”: “So what you are saying is that those matters that you have left unmarked [i.e. in the statement] are matters that the Crown quite properly could put towards relationship evidence and that’s the way I certainly rule”.

18 The grounds for appeal complain of the judge erring in permitting the prosecution to call “relationship evidence” (Ground 4); of the judge erring in failing to direct the jury in respect of the “relationship evidence” prior to, during or immediately after the giving of such evidence (Ground 5); and the trial judge erring in his directions to the jury in respect to the “relationship evidence”.

19 The “relationship evidence” ultimately admitted was that similar incidents to those described in Count 1 occurred in the lounge room at Numa Road North Ryde up to about ten times. Having given evidence of the occasion the subject of Count 1, the complainant gave this evidence:

“Q. Did anything else like that on similar occasions? (sic)

A. Yes.

Q. Are you able to say approximately how many times, I’m talking about the lounge room at Numa Road, North Ryde?

A. I don’t know how many other times.

Q. One other time or more than one?

A. More than one other time?

Q. Are you able to give a rough or a vague estimate?

A. A number of times, but not more than 10”.

20 Incidents similar to those the subject of Counts 2, 4 and 5 (touching of the breasts, vaginal and anal intercourse) are said to have occurred in the bedroom at North Ryde two or three times. The complainant’s evidence was:

“Q. The episode in the bedroom, did anything like that ever happen again?

A. Yes, it happened two or three more times.

Q. On these occasions, did they also happen in the bedroom or not?

A. Yes, also in the bedroom”.

21 In relation to count 5 (rubbing of vagina) the complainant recalled similar incidents occurring every time she stayed with the appellant at Wentworthville until she stopped visiting him in 1982. She said:

“Q. Did any similar incidents to that happen, other similar incidents when you were at Wentworthville visiting your father?

A. Yes.

Q. How often?

A. Every time we stayed overnight”.

22 It is desirable to observe at this stage one aspect of the structure of the trial appealed from. This aspect received no attention during the course of the argument of the appeal. From page 8 of the transcript of the first day of the trial it is apparent that counsel for the accused exercised his right to make an opening address to the jury after that of the Crown Prosecutor. The contents of that address have not been reproduced. Page 20 of the transcript of the proceedings on 3 August 2000 (wrongly dated 31 March 2000) points to one component of the opening being concerned with statements made by the complainant to the police. The forensic position taken by the appellant can be summarised: the complainant was cross-examined as to the various statements she made to the interviewing police officers and some alterations therein; the complainant who described her relationship with her father as “vile”, was cross-examined as to her relationship with him being evidenced in some way by the writing of greetings on birthday cards, Christmas cards, attendances at and after her wedding and photographs with her children. The purpose of this line of cross-examination is evident. The complainant was cross-examined to the effect that none of the incidents occurred. This she denied. Her evidence was:

“Q. And that he’s never done what you’ve alleged that he’s done?

A. Is that a question?

Q. Do you agree or disagree with that?

A. I beg your pardon.

Q. I said that he’s never done what you’ve said he’s done, do you agree or disagree with that?

A. He has done what I said he did”.

“Q. Mrs [B], you understand what I’m saying to you, I’m saying that you fabricated the allegations against your father?

A. I have not”.

23 It is appropriate to set out here the way in which the matter of “relationship evidence” was dealt with, not without a great deal of controversy, by the learned trial judge in his charge to the jury. The relevant part commences:

“ You will recall, ladies and gentlemen, the learned Crown Prosecutor, in opening the Crown case to you, said that the complainant will tell you, in addition to the charges on the indictment, she will refer to similar things or other matters, not subject to any charge, happening on other occasions. This is what is commonly referred to by lawyers as relationship evidence.

As I have made clear, before you can convict the accused in respect of any count in the indictment you must be satisfied beyond reasonable doubt that that particular offence has been proved to have been committed

. Now, in addition to the evidence led by the Crown, specifically directed to the particular counts in the indictment, the Crown has led evidence of other acts of alleged misconduct by the accused towards the complainant. I shall, for the sake of convenience, refer to the other evidence as evidence of other acts”.

24 His Honour then proceeds to summarise the evidence and continues:

“The Crown, as I have said to you, must identify specific acts and occasions for the court and it must prove these particular acts and not some other acts on other occasions. That is fundamental to this case. That does not, however, mean that you may not take into account some wider sexual history if it is proved; that is the evidence of other acts of a sexual nature between the accused and the complainant.

You do not do that in order to substitute those other acts on occasions for those charged

. The history of a wider series of sexual events is led for a different purpose altogether and it is important for you to understand what that purpose is. It is to place the evidence of the particular acts into a true and realistic context and, where appropriate, to show the

existence of guilty passion

on the part of the accused for the complainant. Otherwise, you see, a jury, such as yourselves, may wonder as to the likelihood of apparently isolated acts occurring suddenly, without any apparent reason, without being repeated.

If a complainant gave evidence of isolated acts of that kind, you would be entitled to say to yourselves, as people of commonsense, well really it is very odd for there to be such isolated acts between these persons which were not repeated or which had no precursor. For that reason you may have cause to entertain some doubt as to the likelihood or accuracy of the witness. If, however, the particular acts charged are placed in a wider context, that is a context of an ongoing history and show or tend to show the existence of

a guilty passion

on the part of the accused for the complainant, then the curious feature would disappear. It is for that reason that the law limits

a wider sexual history to be proved; it is to avoid artificiality or unreality in the presentation of the evidence and to demonstrate, where appropriate, the existence and continuation of a strong desire on the part of an accused person for another person. For one of two incidents to be artificially isolated and selected and for a witness to be confined to them could make it very difficult for her to proceed intelligently with her evidence. To pick out, for example, two incidents separated by lengthy periods could leave you with a very strange and unrealistic account. However, I emphasise to you again that you must not substitute evidence of other acts for the specific act charged and you must not reason on the basis, ‘well, this accused must have done some wrong things on other occasions relating to this girl and therefore we will convict him on these two particular acts’ or the number of particular acts. The Crown must prove those particular acts beyond reasonable doubt and those acts are the ones referred to in the indictment. You have the wider history merely to place her evidence in the context and, if you think it appropriate, to show the existence of a

strong desire

for her by the accused”.

25 In the absence of the jury the following exchanges took place:

“CROWN PROSECUTOR: Your Honour referred to the relationship evidence and used the words ‘guilty passion’ on, I think, three occasions.

HIS HONOUR: Yes, and then I corrected myself at the bottom there.

CROWN PROSECUTOR: I know, but could your Honour just make it clear - -

HIS HONOUR: And then I said - -

CROWN PROSECUTOR: Your Honour said all the right words but used that ‘guilty passion’ a couple of times.

HIS HONOUR: I will, and I think it’s important. One of the reasons I stopped was because I did refer to it and I can’t think of the name of the case, I think there is one recent one - anyway, it said that it wanted to get rid of the words ‘guilty passion’. But the direction that I had had it in it.

CROWN PROSECUTOR: That’s the..(not transcribable)..when it didn’t matter.

HIS HONOUR: I certainly will correct that.

CROWN PROSECUTOR: The only other factual thing, and your Honour sort of said, “There is no evidence whether she ever screamed or did anything on the other occasions”. I think her evidence clearly says, “On no occasion I ever said anything”.

HIS HONOUR: And I think I said that again after.

CROWN PROSECUTOR: You did say that but your Honour said, “There is no evidence of it but…”. So, that was the only thing.

SHORT ADJOURNMENT

RESUMPTION

IN THE PRESENCE OF THE JURY

HIS HONOUR: Before I continue on, if I can just go back to when I was giving you a direction with respect to relationship evidence and a term I used and I’m not sure how it came into my vocabulary but it should not have and I want to take that term out and have you expunge it from your minds altogether. I said this, in effect, I will not go through all of it, but I said, “If, however, the particular acts charged are placed in a wider context, that it is a context of an ongoing history and show or tend to show the existence of a “guilty passion.” Now, the term “guilty passion” I should never have said and that is the term I want you to expunge from your minds completely. And, I should have said, “show or tend to show the existence of a strong desire”. And, again, I said it on two occasions actually, and the other occasion was “the existence and continuation” and I used the term “guilty passion” again. I should not have said it there either

. It should have been “the existence and continuation of a strong desire on the part of the accused person for another person”. “Guilty passion” is out

CROWN PROSECUTOR: Your Honour, should not use that term either. The Crown really led it only as relationship evidence to put it in the context. Your Honour has given the directions in relationship evidence but we didn’t itemise – for us to lead it in the other way we have to go through and detail every one. We didn’t do that so the Crown says that just falls within relationship evidence to put it within context, neither guilty passion or strong desire is not to be used that way.

HIS HONOUR: It’s not necessary at all.

CROWN PROSECUTOR: It is not to be used in that way, it’s just to be used in the context of placing it in - not showing they were isolated events.

HIS HONOUR: Ladies and gentlemen, you have just heard Mr Crown correct me again, and Mr Crown is quite right, I should not have used that at all anyway. What the other acts complained of, and they are referred to as ‘other acts’, they are only to put it all in context, to show that there were not just these offences on the indictment had occurred by themselves. They were there, given to show how they were placed and the context in which they were put to make it a way for you to look at them in deciding these particular matters.”

26 In this context I turn to the appellant’s submissions. It was argued that counsel at trial had submitted that the allegations were in the nature of general sexual misconduct and were insufficiently precise to enable them to be “dealt with”. I do not understand what is meant by the expression “dealt with”, in the light of the stance and structure of the defence “case”. His Honour allowed the evidence and it was presented in the form set out above. It was submitted that the prosecution was actually introducing evidence in the nature of “tendency evidence”. Thus, it is submitted that the effect of what was “proposed” and what then occurred was that incorrectly the prosecution avoided having to particularise acts, dates and places and was incorrectly permitted to lead evidence of general sexual allegations which ultimately could not be linked to specific counts in the indictment. Pausing there, when one considers the nature of the testimony given, the link between the acknowledged generality of the evidence is inexorably to specific incidents of which the complainant was giving testimony.

27 It was further argued that to have been admissible, the acts had to be precisely defined as to time, place and character. In the written submissions there is a reference to a decision of this Court in Regina v Marsh [2000] NSWCCA 370 and particular reference to paragraph [18] of the judgment of Adams J. What his Honour there said as to the requirement of precise definition must however be viewed in the context of the facts with which the Court there was concerned, and they were extraordinary in the context of sexual assaults. The other acts by reason of their character not subject to charge, in Marsh, were acts of violence and assaults in the context of testimony that covered both consensual and non-consensual sexual activity. There, there was a clear difficulty in relating evidence of the other acts to the sexual acts complained of. Understood in that context, his Honour’s remarks are perfectly correct but they are not necessarily apposite to the situation in the present appeal.

28 The arguments in support of these grounds then proceeded to assume that it was the Crown’s intention, and it was in fact the effect of the evidence, to prove “tendency” or “propensity”. When one considers the evidence there is no sensible basis on which a view of it as “tendency” evidence can be formed. Such as it was, in my view, the evidence clearly was admissible as relationship evidence and nothing more. The Crown did not seek to rely on it as tendency evidence, it could not have that effect and further particularity was not required.

29 The submissions led to an examination of the decisions of the High Court in Gipp v The Queen (1998) 194 CLR 106 and KRM v The Queen (2001) 75 ALJR 550.

30 The judgment of the High Court in Gipp was delivered on 16 June 1998 and as shortly thereafter as 10 August 1998 in Regina v RM Fraser (NSWCCA unreported 10 August 1998, Mason P, Wood CJ at CL and Sperling J) it was held that unless the High Court otherwise decides (the decision in Gipp lacking a clear ratio), the law in relation to the admission of (relationship) evidence should be taken to be as declared in Regina v Beserick (1993) 30 NSWLR 510 and Regina v AH (1997) 42 NSWLR 702. Both these decisions received the consideration of this Court (Spigelman CJ, Heydon JA and James J) in Regina v Dann [2000] NSWCCA 185 in which it is to be observed that Heydon JA not inappropriately remarked with reference to both Gipp and Fraser that “the authorities in relation to these issues bristle with problems” at [34].

31 It may be thought that some degree of clarification as to the position of the High Court at least with respect to “relationship” evidence was achieved in its decision in KRM. Leaving to one side the fact that within KRM their Honours, particularly Kirby J, seem to dispute whether or not Gipp and the respective judgments therein constitute clear authority, McHugh J having (from paragraph [20]) examined the authorities in relation to propensity evidence and in due course having come to the judgment of Gaudron J in Gipp, concluded in paragraph [31] as follows:

“By reason of the divided reasoning of the majority in

Gipp

, it cannot yet be said that evidence of uncharged acts of sexual conduct is no longer admissible to prove the relationship between the parties. Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it”.

32 I do not understand that even there his Honour is saying that in every case in which “relationship” evidence of the present kind is inadmissible, or, if admitted, that a propensity warning is required. His Honour is merely pointing to the occasion that might arise where such a warning, in addition to a direction as to the use to be made of the “relationship” evidence would have to be given. Hayne J said (at [143]):

“ I …agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning”.

33 It seems to me that the only course this Court can take in this appeal, in relation to a state of law which is perhaps best described as “fluid”, is to adopt the approach in Fraser that the law in Beserick and AH is still that which applies. It seems to me that nothing said in KRM detracts from that proposition. In fact the High Court has recognised (notwithstanding some internal dispute as to that fact) that until the uncertainty arising from the decision in Gipp is resolved, the status quo referred to by both McHugh and Hayne JJ is applicable in this State.

34 Thus far I am of the view that his Honour did not err in admitting the evidence, and that there is no error in its characterisation by the Crown as being nothing more than “relationship” evidence and not being tendered as tendency/propensity evidence.

35 In relation to ground 5, failing to direct the jury in respect of “relationship” evidence prior to, during or immediately after the giving of such evidence, it is the fact that his Honour recognised that he should do so .His Honour did not do so at the time of its admission. Viewed discretely I am not persuaded that there was any miscarriage by this oversight. The evidence as has been set out above was very briefly and simply given and in the end, subject to their correctness, the directions at the end of the trial would otherwise be sufficient.

36 From the extracts from the summing up set out above it is, as was submitted for the appellant, clear that the expression “guilty passion” was inappropriately used by his Honour. I am not persuaded that this reflected confusion in the trial judge’s mind as to the basis upon which the fairly minimal “relationship” evidence was admitted, namely solely as relationship and not tendency/propensity evidence. It was an unfortunate slip. I am not persuaded further, as was submitted for the appellant, that the jury must have been confused to the point where they did that which his Honour in fact twice enjoined them not to do (notwithstanding his use of “guilty passion”), namely to take into account “some wider sexual history if it is proved; that is the evidence of other acts of a sexual nature between the accused and the complainant. You do not do that in order to substitute those other acts on occasions for those charged” and where, towards the end of the second extract above, his Honour emphasised once again how the jury must not use the “relationship evidence” and what its purpose was. I am not persuaded by the submissions by senior counsel for the appellant that this unfortunate inadvertence resulted in the outcome he submitted and thus a miscarriage.

37 There is one other matter that must be dealt with in my view. It is contended that his Honour gave the jury no real assistance as to how they were to use the “relationship evidence”. I disagree. He explained it in terms of its background nature and was repetitive in his direction to the jury that they do not use it as a substitute for finding each count in the indictment proved beyond reasonable doubt. A submission however was made for the appellant that a direction should have been given to the jury that it should have no regard to assertions of other sexual misconduct unless “satisfied beyond reasonable doubt” that the evidence proved the commission of these offences not charged. No New South Wales authority was cited in support of this proposition. Reference was made to two decisions of the Court of Criminal Appeal of South Australia: R v Peake (1996) 67 SASR 297 and R v R SCCRM-98-45, SCCRM-98-46 (17 June 1998). In the latter their Honours relied upon the decision in the former where, on reading it, it seems quite clear that such a direction would be required. Olsson J in Peake gave a lengthy, reasoned judgment making due reference to Pfennig v The Queen (1994) 182 CLR 461, Wilson v The Queen (1970) 123 CLR 334 and other decisions of the Supreme Court of South Australia in relation to propensity evidence and how the jury should be directed upon it. He nonetheless at [309.5] merely states that counsel was correct when he asserted before that court that it was essential that it be made clear to the jury that before it could rely on disputed evidence of prior conduct going to relationship it had first to be satisfied of its accuracy beyond reasonable doubt. If the decisions of the Supreme Court of South Australia can be understood as starkly asserting it to be the law that in a case where relationship evidence is given of the present kind (not tendency/propensity evidence), the jury, before it could make any use of it as “relationship” evidence and only for that purpose, it must be satisfied beyond reasonable doubt in respect of it, then I cannot accept that to be the law. An explanation is given to the jury as to why the evidence is there to set the “background” of the “relationship”. The jury is warned in clear terms that that evidence cannot be used in substitution for its finding beyond reasonable doubt that the Crown has proved on the evidence brought in relation to each count guilt on each count. I cannot see how in a case such as the present, any such standard of proof direction usefully, and safely could be given.

38 Our attention was drawn to the statement of Gaudron J in Gipp in a context where the whole of the judgment in that appeal discloses that the trial judge said no more than that there was no need for the jury to be satisfied beyond reasonable doubt of the background facts provided they accepted the complainant’s account that it occurred (see p 111, paragraph 8). Her Honour found in the circumstances of Gipp that the evidence in any event was inadmissible (page 113, paragraph 12). It having been admitted, however, her Honour said (at 115 paragraph 21):

“The bare direction to the jury that they had only to be satisfied with respect to that evidence

on the balance of probabilities

was erroneous and dangerously so. It left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving regular sexual abuse, that the appellant was guilty of the specific offences charged”.

39 Her Honour went so far as she did expressly to state the requirement of proof beyond reasonable doubt. It is interesting to note that her Honour did so apparently informed by her understanding that the trial judge had left it to the jury to be determined on the balance of probabilities. There is no indication that the trial judge in that case expressly did so. All that he did was say that there was no requirement to be proved beyond reasonable doubt. Nowhere in the High Court report is there any indication of the trial judge using the language of, or otherwise referring to, the civil standard of proof.

40 In their joint judgment McHugh and Hayne JJ, having set out the relevant passage from the summing-up of the trial judge in relation to there being no need for satisfaction beyond reasonable doubt, went on to say:

“[75] The trial judge did not direct the jury that, if they accepted that the appellant had sexually interfered with the complainant on occasions other than those charged, they could use that fact to infer that the appellant had committed the offences which were the subject of the five counts left to them. The evidence tendered was general in its nature and…was admitted for the limited purpose of making the circumstances of the specific offences more intelligible. It was admissible because it was evidence "as to acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances”…Counsel might have objected to the generality of the evidence and insisted that the complainant should recite in detail, so far as she could, the times, places and manner of these sexual interferences. But he preferred - what seems to us to have been the better forensic choice - that the evidence of the sexual history should be given shortly and without prejudicial detail.

[76] 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.

[77] No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts. But it was not tendered as propensity evidence. If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years (See, eg,

Pfennig v The Queen

(1995) 182 CLR 461). Moreover, as

BRS v The Queen

(1997) 191 CLR 275

shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence (

BRS

(1997) 191 CLR 275 at 305-306). In

BRS

(at 305) McHugh J pointed out:

"If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence."

[78]

In this case, the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges. No doubt, it would have been better if his Honour had gone further and expressly told the jury that, if they found that there was a previous or continuing history of incidents, they were not to use that finding to reason that the accused committed the offences charged. But his Honour's failure to take that further step does not mean that he necessarily misdirected the jury or that the verdict is unsafe or unsatisfactory or that there has been a miscarriage of justice

. Having regard to the conduct of the case and the rest of his Honour's summing up, there is no reason to suppose that the jury might have used the general behaviour evidence as propensity evidence. Neither counsel nor the judge suggested that course. Furthermore, the whole thrust of the summing up was that the jury had to be satisfied beyond reasonable doubt that the complainant's evidence in respect of each incident was reliable.

[79]

No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour's statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt

. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in

Shepherd v The Queen

((1990)170 CLR 573 at 579) where:

"the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any

be unnecessary or confusing to do so

That statement was made with respect to circumstantial evidence but is equally applicable to a case such as the present.

The evidence concerning the relationship of the parties in this case was not…an indispensable link in a chain of reasoning leading to an inference of guilt”.

41 It is clear that so far as their Honours were referring to any requirement for proof beyond reasonable doubt, it was not in the case of “relationship” evidence of the kind with which we are here concerned but rather, when the uncharged sexual offences can properly be defined as “propensity/tendency evidence” or otherwise constitute the “indispensable” facts to which their Honours refer.

42 This in my respectful view also accords with the reasoning of Kirby J:

“[139] Before this Court, the Crown properly conceded that the reference by the primary judge to the standard of proof relating to the evidence of prior molestation was "undesirable and should not have been made". It was "unfortunate". I entirely agree with these epithets. Where such facts may constitute "indispensable links in a chain of reasoning towards an inference of guilt"…it may be appropriate (and would have been appropriate in this case) to warn the jury that each "link" must be proved beyond a reasonable doubt.

[140] Additionally, where evidence of the kind admitted in this trial is received, special care must be exercised in the use to which it is put because of its significant potential to cause prejudice to the accused. This type of evidence has been classified in various ways. It has been called "dispositional", "background", "tendency" (See s97 of both The Evidence Act 1995 (Cth) and the Evidence Act 1995 (New South Wales) which provides that such evidence is inadmissible unless it would have significant probative value and s101, which provides that it may not be adduced by the prosecution in a criminal trial unless its probative value substantially outweighs any prejudicial effect it may have on the defendant…Analogous rules apply to “coincidence” evidence: ss 98, 101

"propensity"…"relationship"…or in some circumstances, "similar fact” (

Hoch v The Queen

(1988) 165 CLR 292 at 294) evidence. Although each of these terms has its own drawbacks, and whilst each has been used differently, in my view, all are apposite to the present case.

My own preference, on the basis that it is harmonious with the wording of the Uniform Evidence Acts (being the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Whilst these Acts do not, of course, apply in this case, it is useful to consider how they have expressed the relevant test:

R v Swaffield

(1998) 192 CLR 159 at 208)

, is to use the term "tendency" evidence.

[141] Evidence of this kind is only admissible if its probative value outweighs its prejudicial effect…This Court has repeatedly warned of the dangers of allowing such evidence to be admitted, of permitting it to be received without immediate warnings as to the limited basis upon which it may be considered and then of the need to direct the jury, in the concluding charge, on the way in which, if at all, they should use such evidence…I accept what was recently said in this regard by the Court of Appeal of Victoria in

R v Vonarx

(Unreported, Court of Appeal of Victoria, 15 November 1995 at 12-13 per Winneke P, Callaway JA and Southwell AJA):

"[W]here evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.

The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him ... only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred".

[142] In the present trial it is doubtful that the probative value of the evidence of the complainant concerning alleged events outside the offences charged outweighed the substantial prejudicial effect of such evidence. However, assuming that it did, and that the evidence was therefore admissible as tendency evidence, far from giving the stringent warnings required by law at the point that the evidence was received and at the point at which the concluding instruction was given to the jury, the primary judge gave absolutely no warnings about the dangers of the use of such evidence. On the contrary, he instructed the jury that they could be satisfied on the evidence otherwise than beyond reasonable doubt. Read in context, such instruction was a most serious misdirection…It is perfectly possible that, in this case, the jury reasoned to the appellant's guilt of the offences charged from satisfaction that the appellant did have an ongoing sexual relationship with the complainant, going back, as she had stated in her evidence, years before the times alleged in the counts of the indictment. It is equally possible that the jury, conforming to the judge's directions, reached their satisfaction on a link in the chain of their reasoning other than according to the criminal standard of proof”.

43 Arguably Kirby J’s reasoning can be said to have been affected by his Honour’s choice of, and preference for, the term “tendency” evidence as he indicated in paragraph [140] cited above.

44 My understanding of the judgments of the High Court, and indeed of the Supreme Court of South Australia, lead me to the view that at best the requirement of proof beyond reasonable doubt applies when a clear case of “tendency” evidence is tendered by the Crown or, (which is certainly not the case here), the effect of “relationship” evidence is to establish a tendency. Otherwise, the observations of McHugh and Hayne JJ at paragraph [79] as to the trial judge more desirably having made no mention of the standard of proof are applicable. I would add that it could be understood that there were those sound forensic reasons for not exploring in detail the generalised allegations referred to by their Honours at the end of paragraph [75] in the present trial, the more so when the position of the defence was that nothing had occurred and that the complainant’s evidence was a fabrication.

45 As to grounds 4, 5 and 6 I am not persuaded that any miscarriage of justice occurred, notwithstanding what in the end was the unfortunate inadvertence, but one satisfactorily cured by his Honour in the course of his summing-up.

Grounds 7, 8 and 9

46 These grounds relate to the trial judge having erred in permitting the prosecution to lead evidence of complaints as prior consistent statements (ground 7); in his directions to the jury in respect of complaints (ground 8) and in rejecting the application of the accused for further directions on failure to complain (ground 9).

47 On 1 August 2000 his Honour ruled in favour of the accused by rejecting evidence of complaint as being inadmissible under s66(2)(b) of the Evidence Act 1995 as being not sufficiently “fresh”. Counsel for the accused appropriately informed his Honour that the accused’s position would be that the complainant’s evidence was fabricated. His Honour thereupon granted leave to the Crown to lead evidence pursuant to s108(3) of the Evidence Act. One may fairly assume that the indication given to his Honour on 1 August 2000 as to fabrication was no doubt covered by the appellant’s trial counsel in his opening address to the jury to which I have referred above.

48 The evidence was thus admitted as prior consistent statements by the complainant to rebut the evidence of fabrication. That evidence is set out in the summary of trial above and was given by witnesses Pascoe, Davis and Cole. The complainant’s evidence as to her making complaints referred to a period towards the end of the time when her father was engaged in a sexual relationship with her and during the currency of the offences. There was a general coincidence as to the timing of the complainant raising the matters with the respective complaint witnesses however the following observations can be made: the complainant’s statements were not “offence specific”; the complainant’s evidence in particular did not coincide in detail with that of Mrs Cole. Mrs Cole was unable to recall in her evidence any statement by the complainant in relation to the accused masturbating her to orgasm.

49 In his summing-up to the jury his Honour said:

“ I give you, ladies and gentlemen, the following direction as to complaint. The Crown has led evidence of that complaint in order to meet the suggestion made by the accused that the complainant has not told you the truth in her evidence here in court. The Crown argues that the time at which the complaint was made, together with the circumstances in which it was made, demonstrate that her version has always been consistent. In other words, the evidence is relevant to the credit of the complainant as a witness, in that it may increase the weight which you give to her evidence as to the alleged sexual assault with which the accused is charged. However, it is not evidence as to what actually happened between the complainant and the accused, as the person to whom the complaint witness made was not present and did not see what happened between them.”

50 After giving this direction his Honour set out the defence position in relation to the account given to Mrs Cole and the different account given by the complainant. His Honour referred to submissions made by counsel for the accused conformably with the evidence in the trial that the complainant made no mention of any of these events to her mother – she kept her silence and had been told by her father not to mention it to her mother, and that she had sworn her confidants to secrecy.

51 I add that his Honour’s summing-up then thoroughly, in detail and in my view favourably reviewed the defence position in this trial. Having done so his Honour said:

“It is here, ladies and gentlemen, that I warn you that you may find the evidence of the complainant as unreliable. You are to scrutinise her evidence with great care and caution. I further warn you of the need for caution in determining whether to accept the evidence and the weight to be given to it”.

“relationship”

52 It is to be noted in relation to his Honour’s direction on complaint that there is no express reference to delay in complaint or any reasons there for.

53 At what his Honour anticipated to be the conclusion of his summing-up the Crown raised the matter of delay, but principally in the context of his Honour not giving directions as to that there may have been reasons for the absence of complaint. Needless to say defence counsel was content to let the matter there rest.

54 Setting to one side the Crown’s application for further directions which play no part in this appeal, it cannot be said that it is easy to identify with precision what in fact counsel for the accused was seeking by way of further directions in relation to complaint. It can, however, upon my reading of the transcript, be stated that no application was made to his Honour to direct or further direct or redirect the jury in terms that the jury must consider the evidence in relation to each charge separately. A reason for that of course is that in addition to the emphasis placed upon those parts of the summing-up dealing with “relationship” evidence, extracted above, his Honour had made it clear from the opening of his summing-up that the jury needed to consider each charge separately. He reminded the jury again of this obligation when he dealt with the elements of the charges.

55 It seems to me that what defence counsel was seeking was an unreliability direction under s106(1) of the Evidence Act; a direction that there was nothing in the evidence as to complaints that can be linked with each charge, and a direction as to there having been no complaint until 1998 about the offence of buggery. It is to be noted that not surprisingly the complainant was not cross-examined as to this detail.

56 His Honour gave further directions as follows:

“Thank-you, ladies and gentlemen. First of all it was sought that I give a further direction with respect to one of the directions I gave you and that was regarding delay. You may recall I made reference to delay from the time of the first incident about 1977 through to when the witness first apprehended and it was bought to his notice some twenty-two years hence. What I failed to say to you was that the delay was – from the time of the first offence through to when the complaint was made, it is another direction that I need to give you and I propose to give it to you. You may recall that in the factual situation given by the complainant that the first offence occurred in 1977 and it was not until I think 1981 that the complaint was made and some years apart before she complained.

Throughout her evidence she said that she told no one and you may recall that. It was not until she had spoken with her friends that the complaint was first made. This is a direction I propose to give you.

You have heard evidence that on or about 1981 the complainant made a complaint to those persons, that is Jackie and Rosalyn Cole and Mrs Cole. Without going through it again, I have already highlighted it in my summing-up to you, the accused has argued that the delay by the complainant in making a complaint to a person whom she might reasonably have been expected to complain is inconsistent with the conduct of a truthful person who has been sexually assaulted. He says that you should therefore regard the complainant’s evidence that he sexually assaulted her in the way outlined as false. This is necessarily a matter which you should consider but I must warn you that the delay in making a complaint does not necessarily indicate that the evidence of the complaint is false. It may indicate fabrication on the part of the complainant but does not necessarily do so. There may be good reasons why a person who has been sexually assaulted hesitates in making a complaint.

It is important, however, that I give you certain warnings. It is most important that you appreciate fully the effects of the delay on the inability of the accused to defend himself by testing prosecution evidence or adducing evidence in his own case to establish a reasonable doubt about his guilt. In this regard I refer to the following specific difficulties that may be encountered by the accused in testing his evidence of the prosecution and they may include that the accused’s opportunity to obtain evidence refuting the circumstances of each alleged act was significantly impeded, as if he were unaware of dates, times and where he was, there may have been another way in which he could have run this case, that is if he was not there and he was aware of these allegations that there may have been an alibi defence. Next it also may have impeded the ability of the accused to adequately test the complainant’s evidence by the difficulty in recalling dates, times and where he may have been on those occasions. As a result of that delay in the complainant complaining, I must warn you that the evidence of the complainant is unsafe and that you must scrutinise her evidence with great care.

Having carefully considered the matters to which I have referred you and the warnings which I have given you, it is then a matter for you to determine what weight you should give to the complainant’s evidence.

Crown Prosecutor:

Your Honour used the word “is unsafe”, “it may be unsafe”, it is a matter for the jury.

HIS HONOUR: I am sorry is – may be unsafe and Mr Crown is perfectly right, it may be unsafe and that is entirely a matter for you to determine”.

57 The first point advanced on the appeal in relation to the complaint evidence is that, notwithstanding that no objection was taken to it otherwise than on the freshness basis, his Honour should not have admitted it because it rationally could not affect the issue of the complainant’s credit, inter alia, because it was non-specific in nature. In my opinion on the face of the express statement that it would be alleged against the complainant that the whole of her testimony as to the events was a fabrication, the evidence as given, non-specific though it was vis-à-vis any particular offence, was rationally available for the jury’s consideration on the issue of the complainant’s credit. Further, in the light of the directions given during the course of the summing-up generally, and after the applications made by both sides, it could be said that the emphasis of his Honour’s summing-up as a whole was favourable to the appellant. Insofar as Rule 4 might apply to this ground of appeal, I would refuse leave, but if leave were granted, I would not be persuaded in the light of the structure of the trial and the summing-up as a whole that there had been any miscarriage of justice.

58 The remaining submissions in relation to this aspect are unhelpful and strike me as being word-processed consequent upon a microscopic examination of the whole of the transcript without regard to the macroscopic view that this Court is entitled to take when considering the questions of miscarriage of justice in the context of a given trial. Reference is made in the written submissions to the decision of the High Court in Papakosmas v The Queen (1999) 196 CLR 297. Without more it is unhelpful.

59 In relation to ground 8 as to the directions in fact given, no application was made to correct them in a way that conforms with the written submissions on this subject. I have made my view clear as to the overall effect of his Honour’s submissions. If Rule 4 applies I would refuse leave but otherwise I would not be persuaded that any miscarriage of justice occurred.

60 As to ground 9, his Honour did not give specific directions in relation to the apparent failure of the complainant to make any complaint about buggery until 1998. His Honour’s protest at defence counsel leaving it to the end of the trial to raise some issue in this regard is understandable. I do not know what, if anything, was said on this issue during the course of closing addresses. What is quite clear is that the references to the evidence by his Honour on the subject of complaint and the thrust of his summing-up generally could only be regarded as favourable. True it is that in the evidence such as it was as to complaint, it being non-specific, and especially in relation to Mrs Cole, there is not a word about buggery. What precisely his Honour was required to tell the jury is unclear. His Honour had explained to the jury as set out above the complaint evidence itself and what use could be made of it. The cross-examination of the interviewing Police Constable, Antaw, was concerned with the failure of there being any reference to a complaint to Mrs Cole and particularly the vaginal touching. Otherwise there is no specific reference, as I read the record of the proceedings, to a complaint about buggery being delayed until 1998. What there is however is the evidence of the complainant in relation to the event (the single incident) that gave rise to charges 3, 4 and 5 – indecent assault, carnal knowledge and buggery. What there was before the jury was the evidence also in relation to counts 1 and 2 (indecent assault) and count 6, the last count, the act of indecency. There was no evidence of the fact that the complainant had not complained about buggery until 1998. Was his Honour to tell the jury that? Again, I am of the view that the further directions given both before and after the applications for the directions were sufficient and indeed favourable to the accused. I cannot see any basis upon which the specific direction in relation to the late complaint of buggery in 1998 could on the evidence have been given. The subject of complaint and delay was adequately covered by his Honour as a whole by the time his summing-up concluded.

HIS HONOUR: That’s the standard, isn’t it? I can’t allow the cross-examination unless leave’s sought?

WATSON: That’s correct. All I’m asking - the application is that the informant would be asked about the accused’s antecedents. He would say that there are no antecedents - -

HIS HONOUR: just tell me, first of all, where under the Evidence Act that I can do that and where in these cases say that I can do that - that is allowed - -

WATSON: You’ve got a discretion - -

HIS HONOUR: --that character evidence – limited character evidence to be given without the Crown being able to call those witnesses he seeks to. Just take me to it. I understand what your application is. What I’m after is you show me the authorities that say you can do what you want to do.

WATSON: You have a discretion under – it’s s137 and 137. Leave an be refused for the Crown to cross-examine under s122. While the authorities provided to you - -

HIS HONOUR: Just take me straight to the point that you want to rely on.

WATSON: PKS , your Honour. If I can take you to page 4, where you will see the paragraph, ground 1, and it says: “…pursuant to s110 of the Evidence Act ….other children including his own.”

HIS HONOUR: The piece you just read, how does that fit in?

WATSON: Well, that’s in the case your Honour. The thing that affected the appellant in PKS was that he had offences for theft. Now, the thing is, certainly there are allegations and the application here is that while –certainly there are allegations, my submission is that there’s a limited use of his good character only to the point that what would be coming before the court is that as at the time he was charged he was a different person without any criminal record. So it is a different situation to PKS certainly and the distinction - -

HIS HONOUR: I understood limited good character, and I might be completely wrong, but my understanding of it is this, that if someone is charged with sexual offences, let’s use that charge, and if he has a record which includes say theft matters, now the limited part is you can show, you can say to the jury, “Well, look his record indicates these theft matters but his record with respect to sexual assault matters, or sexual offences, is none. He’s got no prior history of it.” But what you’re trying to do here, isn’t it, it’s something a little different in that you say, “Well, look his record’s clear”, but how does that stop the Crown from raising or calling witnesses to say “He’s done this to me in the past and this has happened”, these are all sexual - -

WATSON: Firstly, the Crown consented to separate trials and that in effect would be running all the material through the issue of character if the Crown wished to do it that way.

HIS HONOUR: No, I can’t understand that. Whether the Crown consented to separate trials or not, the Crown’s still, aren’t they, entitled to say, “this is what’s gone on in the past”. And the Crown’s saying to you, “if you don’t raise good character, then we don’t pursue the other issue”. I’m not really - maybe I’m missing the point here.

WATSON: The distinction between these cases is that there were convictions, whereas what the current accused is facing are allegations.

Crown Prosecutor: That’s not quite right what my friend says, these cases. If your Honour goes to - in relation to the other case, Robinson , if your Honour goes to paragraph 42 and 43, it’s really in a nutshell there.

HIS HONOUR: Yes, that’s right, and I’ve marked there that as well, and it was already marked but I marked it again.

Crown Prosecutor: They’re outstanding trials, outstanding complaints, same situation.

HIS HONOUR: What’s your view of that, Mr Watson?

WATSON: Only this, your Honour, the application is only this, that it’s not a proposal to have Mr [B]’s character put forward as good in general or good in any respect to – as it says in paragraph 43, “put forward good character in general or in the particular sexual respect”, its only that the – the only area that this application concerns is that prior to the charges, this man had no criminal record; its as simple as that.

Crown Prosecutor : What does it go to?

HIS HONOUR: I think that’s a pertinent question, what does it go to?

WATSON: It goes to the history prior to the date of the charge as far as the authority - the police is concerned.

CROWN PROSECUTOR: I don’t understand - is my friend then going to say he’s entitled to the twofold direction on character which he’s unlikely to commit a sexual assault offence; unlikely to commit this offence? As I understand the basis of the limited way which your Honour has described, which they refer to in the other cases where they were - quite obviously they were larceny matters, when he was eighteen, nineteen or twenty which he got bonds for, quite obviously because they’re talking about the limitation, the fifteen year limitation, so I don’t – perhaps if my friend could indicate what he seeks – what direction he seeks from your Honour - -

HIS HONOUR: If this were to be raised. Yes, what are you seeking that I should say to the jury?

WATSON: It would only be this, that prior to the accused being charge with this matter, he had not come to the attention of the authorities.

Crown Prosecutor: In what way can they use it?

WATSON: They’re my submissions, your Honour.

Crown Prosecutor : Your Honour, in relation to that, the normal thing means that your Honour would have to give a direction (a) whether he’s going to be believed. The question then, unlikely to commit this type of offence. My friend just says, “no, I just want this evidence” and doesn’t formulate any direction what he wants.

HIS HONOUR: Mr Crown, you don’t need to say anything further. I rule against you, I’m against your application, Mr Watson, and I won’t allow it, as it has been put to me. So it is up to you to decide whether you want to still pursue it and the Crown is entitled to call the evidence he wishes to.

WATSON: No, I’ve heard your Honour and the application sought to indicate to your Honour that the application was only on a slim point and I’ve heard your Honour.

HIS HONOUR: I could understand, as I’ve said earlier, I could understand if he had some convictions on his record, but not the ones that he’s being pursued in Court. I could say something with respect to that. That’s not the situation here; it’s nowhere - nothing like it”. (emphasis added)

77 The issue is whether or not his Honour conclusively ruled against the accused on his counsel’s application, whether his Honour was in error in doing so and, if so, whether there was a miscarriage.

78 When the matter was relisted before this Court on 1 March 2002 affidavits by trial counsel, Christopher John Watson, sworn 21 February 2002 and of the Crown, Bruce Kelly, sworn 8 February 2002, were read.

79 In his affidavit Mr Watson said that he had indicated to the Crown in pre-trial discussion a proposal that limited character could be adduced on the appellant’s behalf that prior to the appellant being charged concerning the present complainant he had been a person of good character. He recalled that on 31 July he made an application for a ruling concerning the use of character evidence in this fashion. He swears to “making a definite application” to the trial Judge for his ruling on whether character evidence of a limited nature could be raised in the trial without the Crown being able to bring evidence in rebuttal or to cross-examine the appellant. Mr Watson confirms in his affidavit that which is disclosed by the transcript - that he had referred the trial Judge to the decision of this Court in Regina v PKS (NSWCCA, unreported 1 October 1998) and Regina v Robinson [2000] NSWCCA 59. Mr Watson accepted the ruling set out above as the trial Judge’s final ruling on the question and that his Honour had rejected the application.

80 The Crown Prosecutor deposes as to his recollection of a conversation with trial counsel prior to what is described as the “first aborted trial” the effect of which was that in response to any raising of good character by the accused the Crown would seek to call two other complainants. Annexed to Mr Kelly’s affidavit are statements of the present complainant and the two other complainants. In relation to the two other complainants there is some uncertainty as to whether one of the statements was in fact tendered on what clearly was the voir dire his Honour was conducting.

81 The affidavits referred to were directed to be filed upon the Crown suggesting that the defence counsel for tactical reasons had decided not to pursue further what was available to be understood as an interim ruling only on the part of the trial Judge.

82 It seems quite clear to me, from the text of the transcript set out above and emphasised, that his Honour did conclusively rule against the accused and I accept that thereafter defence counsel reasonably understood the ruling to be final.

83 I am reinforced in my view as to the finality of the “ruling” by an incident that occurred during the trial appealed from but which was not subject of reference during the course of the hearing of the appeal. On 8 August 2000 the defence counsel was cross-examining the accused’s witness Ms Freeman. The following exchange took place:

“Q. What’s your opinion of the type of quality of the relationship that existed between [C] - -

OBJECTION.

IN THE ABSENCE OF THE JURY

OBJECTION CONTINUED: (Crown indicated that counsel was raising character. His Honour indicated that he would let the evidence continue, but indicated to Mr Watson to be very mindful of that; that he, Mr Watson, was right on the borderline with respect to character and may have in fact gone over the line.

Mr Watson asked that the witness wait outside during discussion. Crown indicated that the witness needed to stay to hear what she cannot say. Discussion ensued.)

HIS HONOUR: I am going to allow you to continue your questioning, but if you go anywhere near asking a question that looks like breaching it, and Mr Crown objects to it, I will just rule it straight out and I will not even let her answer it. We will do it that way”.

84 Thus the question of its correctness and, if incorrect, whether there has been a miscarriage of justice must now be considered.

85 Notwithstanding the availability of the view that finality attended his Honour’s “ruling”, there is difficulty identifying the “context” in which it was made. So much as this can be understood: that counsel for the accused was seeking something in relation to his client being of good character – no convictions – up until the time the charges were laid. Further, it can be understood, by reason of counsel’s citing to his Honour the cases referred to above, that there was an understanding of the availability to the Crown of the other complainant’s evidence to rebut good character. Further it can be understood that his Honour had the statements of the other complainants and was sensitive to what he perceived to be the right of the Crown to call such evidence and no doubt the risk to the accused if it were to be called. Otherwise, there was lack of clarity in whatever it was that defence counsel was seeking to articulate. Further, it is clear that his Honour was sensitive to the requirement that he would have to tell the jury something in the light of what can be understood as his Honour’s understanding of what was being put to him, but no assistance was forthcoming from counsel.

86 In this general context, as I perceive it, complaint is made that his Honour failed to consider the possibility of concoction on the part of the complainant and her sisters; failed to consider what is said to be the lack of cogency in the evidence of the sisters’ potential evidence; failed to consider whether cross-examination in respect of the other allegations would amount to seeking to establish propensity; failed to consider the discretionary bases for the exclusion of such evidence pursuant to ss135 and 137 of the Evidence Act; failed to consider the requirements for leave under s112 of the Evidence Act and the accompanying provisions in s 192. His Honour was dealing with whatever application it was that defence counsel was making in the context of a voir dire - statements of the other complainants had been tendered. This Court has the benefit of all the statements and an extract from the committal proceedings with a view to determining whether any miscarriage took place. Further, this Court has the advantage from its perspective of knowing (contrary to the understanding of counsel at trial) that the vulnerability of the accused was affected by the fact that he did have prior convictions for dishonesty many years previously, and the availability of the evidence of the other complaints.

87 His Honour was rightly concerned as to what he was supposed to tell the jury on the assumption that the accused had come under no notice prior to the making of the complaints the subject of the trial. The matter achieved, upon any reading of the transcript set out above, a degree of circularity. That quality of the submissions being made to the trial Judge in the end of course brought it about that his Honour had no occasion to consider the question of leave to the Crown under s112 and the considerations affecting the grant of such leave as provided for by s192 of the Evidence Act. (It is to be noted that there is no reference in the written submissions to s110).

88 In paragraph 7 of his affidavit Mr Watson states: “I was making a definite application to the Judge for his ruling on whether character evidence of a limited nature could be raised without the Crown being permitted to bring evidence in rebuttal or to cross-examine the appellant”.

89 The decision in Robinson had been referred to by defence counsel and defence counsel stated to his Honour: “The application is only this, that it is not a proposal to have [TAB’s] character put forward as good in general, or in any respect to - as it says in paragraph 43 ‘put forward good character in general or in the particular sexual respect’, it’s only that the only area this application concerns is that prior to the charges, this man had no criminal record; it’s a simple as that”.

90 With respect, Mr Watson’s affidavit does not really clarify the nature of the application he made “in that limited way”. No doubt defence counsel was conscious of what Barr J has said in his judgment in Robinson: paragraphs 42 and 43.

“ If defence counsel had put forward a properly formulated proposal to raise good character in general or in the particular respect, for example that the appellant was not guilty of sexual misconduct against young children, and the Crown had been required to make available or make known what material it would wish to bring forward, the trial judge would have been obliged to indicate what evidence if any the Crown might be permitted to adduce. That stage was never reached and the trial judge was not in error.
It would appear from what this Court has been told that at the time of trial a number of allegations of sexual assaults upon other complainants were outstanding against the appellant. It seems highly probable, therefore, that if the appellant had put forward good character in general or in the particular sexual respect I have mentioned, the Crown would have been permitted to prove his sexual assaults on other children. To have conducted this trial otherwise would have allowed the appellant to be presented to the jury falsely as a man of unblemished character in the relevant respect”.

91 It seems clear that in response to submissions by the Crown and the question put by the trial Judge as to the relevance of the proposed evidence of lack of any prior convictions if it did not relate to general or specific character, counsel for the accused said: “It goes to the history prior to the date of the charges as far as the authority – the police - is concerned [sic]”. As mentioned above, his Honour specifically asked counsel, in relation to the evidence, what was to be told to the jury about it. Defence counsel responded as indicated above that “prior to the accused being charged with this matter, he had not come to the attention of the authorities.”

92 The Crown Prosecutor then said the words attributed to him as set out above whereupon his Honour made the “ruling”.

93 The record of the pre-trial voir dire discloses use by the acccused’s counsel of phrases such as: “limited good character of the accused”; “a limited use of his good character only to the extent that what would be coming before the court is as at the time he was charged he was a person without any criminal record”; “ on a slim point”. Nothing in the affidavit filed by Mr Watson amplifies this aspect.

94 S110 of the Evidence Act makes no reference to “limited” evidence of good character. S110(1) refers to evidence that the defendant is “either generally, or in a particular respect, a person of good character”. Ss(2) refers to “evidence adduced to prove (directly or by implication) that the defendant is generally a person of good character”; ss(3) refers to “evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect”. As the Crown submitted in this appeal, evidence that an accused person has no previous convictions commonly forms part of a defence case that the accused is generally a person of good character. Evidence that a person had no convictions for the particular type of offence in respect of which he is on trial generally forms part of a defence case that he is a person of good character “in a particular respect”. Whilst defence counsel did initially put to the trial Judge that the application was being made pursuant to s110 of the Evidence Act “concerning the accused’s character”. It appears however to me that that application so framed (whatever it meant) was resiled from when Mr Watson said: “The application is only this, that it is not a proposal to have [TAB]’s character put forward as good in general, or in any respect to – as it says in paragraph 3 - ‘put forward good character in general or in the particular sexual respect’ (from Robinson) it is only that the only area that this application concerns is that prior to the charges this man had no criminal record; its as simple as that”.

95 This as I have already said points to, at the very least, circularity and in the end points to there being no occasion on which his Honour was invited by a specifically articulated application for directions as to whether the appellant was a person of good character either generally or in relation to his behaviour in a particular respect and thus the occasion did not arise for the trial Judge to make any rulings as to the admissibility of the appellant’s sexual misconduct with other complainants. This the Crown argued on appeal and as for myself I am persuaded by it.

96 As I have intimated above, it is my view that to make the “application” was a tactical decision on the part of defence counsel. Confused and circular as the application appears to have been, I am persuaded that defence counsel, in the light of his Honour’s remarks both on 31 July and on the second occasion to which I have referred, could well have formed the view that the matter was closed. Thus no question arises as to a subsequent “tactical” decision taken by counsel but rather one focussed on whether there was any miscarriage of justice in the extraordinary and unfortunate circumstances in which his Honour made the “ruling”.

97 Insofar as the original application made by defence counsel at trial related to the appellant, prior to the charges being laid, having come under no adverse or authority notice, it can be now seen that that application was misconceived. It is quite clear that at the time neither the Crown nor the defence were aware of two old convictions in Queensland. Both trial counsel were mistaken as to the true position regarding the appellant’s antecedents. From paragraph 4 of Mr Watson’s affidavit it is clear that even had he known he would have made the application. He would have done so because the matters were “old”.

98 Pursuant to the Criminal Records Act 1991 the appellant’s Queensland convictions were spent convictions by reason of more than 10 years having elapsed since their date (s9). That Act (s6) applies to offences, convictions and courts outside of New South Wales as well as to matters occurring within the jurisdiction. S12 of the Act provides that spent convictions need not be disclosed in a number of circumstances. However s16(1) states: “s12 does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentence)”. The situation is not dissimilar to that in PKS where the joint judgment recognised that the defence would not have been able to elicit evidence of general good character in the Crown case by cross-examining the police officer as to lack of previous convictions merely because the appellant had old convictions.

99 The fact of the matter is that in the present case, as it was conducted, the jury received no such evidence. Had an officer been asked the questions defence counsel wished to ask and have given a negative response (that is, no convictions) the evidence would have been false and misleading. As it turns out it would be impossible on any retrial for that kind of evidence to be led by cross-examining the police officer.

100 The curious situation therefore is reached whereby the appellant is complaining about being precluded from leading evidence the true nature of which was unknown to both sides and in circumstances where on any notional new trial (or indeed, had it been known, at the original trial) the evidence could not be elicited for the stated purpose. It is to be further observed that had any notional inquiry been embarked upon as to the status of the old convictions, evidence of them could have been given under s16 of the Criminal Records Act. The administration of justice cannot permit a clear deception of a jury as to the facts (see PKS at p 10). In these circumstances, in my view, there can be no miscarriage of justice when such an end was obviated by what in fact occurred and which clearly could not be achieved on any notional new trial.

101 The second curious aspect of the appellant’s complaint about what occurred in relation to the application as to character evidence, is that in the end, of course, that which was otherwise be sought to be excluded (namely the evidence of the other complainants) in fact was not heard during the course of the trial.

102 The Crown submitted that it is doubtful since the decision of the High Court in BRS v The Queen (1997) 191 CLR 275 whether the decision in Hoch v The Queen (1988) 165 CLR 292 makes evidence tendered to rebut good character inadmissible because of a reasonable possibility of collusion. The Crown further argues that to the extent that the decision of this Court in Regina v Wheeler (unreported, NSWCCA, 16 November 1989) decides otherwise, it is wrongly decided. The Crown nonetheless acknowledges that the discretion available, according to the Crown pursuant to s135 of the Evidence Act, would of course still apply. This last mentioned proposition was considered by this Court in R v OGD [No 2] (2000) 50 NSWLR 433. In OGD it was stated that Hoch enunciated a rule that similar fact evidence is inadmissible unless (the onus being upon the Crown) the trial Judge is satisfied that there is no real possibility of concoction after embarking upon a genuine fact-finding exercise in which evidence, if considered necessary or appropriate, can be adduced from the witness from whom the Crown seeks to adduce the similar fact evidence, and in which the focus of inquiry is on the factual (as distinct from theoretical) possibility of concoction (see OGD at 441-2 per Simpson J). It was further held in OGD that where there is evidence capable of disclosing a tendency on behalf on an accused person (whether or not it is tendered for that purpose) and the Crown fails to exclude the reasonable possibility of concoction on the part of the witness or witnesses, that evidence must be excluded, not because of the rule in Hoch but because of the statutory requirement to weigh the probative value of such evidence against its prejudicial effect set out, in the case of evidence to show tendency, in s101(2) of the Evidence Act 1995 and in the case of evidence not tendered for that purpose (that is, as I understand it, evidence tendered to rebut good character) set out in ss135 and 137 of that Act. All that Hoch does is provide guidance for the exercise of the discretion to exclude evidence covered by s135(a) of the Evidence Act and the evaluative process which may lead to the obligation to exclude evidence set out in s137 of the Evidence Act because of the requirement to weigh probative value against prejudicial effect (see Simpson J at 445-448). As Simpson J observed in OGD (paragraph [75] at 447) it may now no longer be necessary to decide whether Wheeler represents the correct approach.

103 In BRS the High Court was concerned with a trial in which the evidence of another complainant was admitted without objection by the defence on the basis that it was perceived as being admissible on the question of character only which had clearly been raised during the course of the trial. In the end, however, the evidence was relied upon by the Crown, not merely to rebut evidence of good character, but as corroborative of the evidence of the particular complainant. In that context it is interesting to note that Gaudron J (at 298) commenced a substantial portion of her judgment: “Leaving aside the situation in which character is in issue, evidence that an accused person has on other occasions committed other offences is admissible only in strictly limited circumstances…” which her Honour then identifies and discusses. At 300 her Honour notes one other matter. “It is axiomatic that, in cases such as the present, where evidence of conduct on other occasions is tendered in proof of the objective improbability of concoction, that evidence is not admissible unless the possibility of concoction has been excluded. That possibility must be explored before the evidence is admitted – by means of a voir dire, if necessary. That course was not adopted in this case, doubtless because the view was taken that W’s evidence was admissible to counter the character evidence to be called in the defence case. … Assuming W’s evidence otherwise possessed the requisite probative force or cogency, the possibility of concoction should have been explored by the trial Judge in the absence of the jury if it was to be left to the jury as direct evidence of the appellant’s guilt” that is, as I understand her Honour, as evidence of the guilt of the appellant, as evidence corroborative of it, in addition to being evidence to rebut character. Thus it is that her Honour said (at 302): “ In the circumstances of this case the jury should have been instructed that W’s evidence could only be used to counter evidence of the appellant’s good character, to weaken his credibility and to corroborate the account given by H…” (emphasis added)

104 The factual basis of BRS was further referred to by McHugh J (at 303):

“It was common ground at the trial that

W’s evidence was admissible because it rebutted evidence that the appellant was a person of good character

. In his summing up, the learned trial Judge referred to the evidence of good character called on behalf of the appellant. His Honour instructed the jurors that they must take that evidence into account on the question of guilt and in assessing the reliability of the appellant’s denials of the offences. However, the learned Judge made no reference at any stage of his summing-up to the evidence of W”.

BRS

105 The Crown usefully, in written submissions in reply, summarised the evidence available to it from the other complainants, to argue that there was no possibility of concoction. There is no need to further elaborate, as the exercise is academic.

106 The conclusion to which I have come may be summarised thus: first, Rule 4 does not apply. I accept the position of the appellant that his Honour did give a final ruling binding upon the appellant and no tactical considerations entered into his counsel taking no further step in relation to the “character” evidence. Second, insofar as the appellant sought to adduce evidence that prior to the present charges he was not known to the authorities, as is now known, that evidence simply would not have been available (and will not be available in any notional retrial) and the situation whereby a jury might have been misled was thereby obviated. Third, insofar as the appellant contends that he was, at trial, by reason of his Honour’s ruling, precluded from testing on a more expanded voir dire than that which in fact took place, the evidence of the other complainants, and testing it with a view to having that evidence excluded, the evidence was not in any event given. Taking into account the peculiar matter of the antecedents, this ground of appeal boils down to no more than the appellant complaining of being deprived of the opportunity to have excluded evidence which was not in fact called.

107 Assuming that the due formality of a full voir dire was required (as per Gaudron J in BRS in respect to which I have some reservations as to its application here) his Honour did not conduct such a voir dire. It must be added of course that none appears to have been sought in the sense of the other complainants being required for cross-examination, and further, that must be viewed in the context of the shifting of position and other unsatisfactory general forensic state of affairs, which attended the making of the application on 31 July. As I have said, his Honour did not conduct a voir dire; the point was not reached where leave was required; the point was not reached where his Honour was clearly directed to be concerned with s110 of the Evidence Act; or with s112 and s192; and the point was not reached where his Honour may have been called upon to exercise his discretion under s137. The furthest I am prepared to go in this area as to the trial Judge being in error is to say that the circumstances in which his Honour in fact ruled were unusual and indeed undesirable. It is the outcome however which is critical: in the end the jury did not hear the dangerous evidence of the two other complainants. In the end, that which defence counsel sought to have established, namely the absence of “antecedents” was, as a matter of fact, not available. In those circumstances I cannot see any basis for concluding that the accused was in some way deprived of a basis for acquittal or that there was any miscarriage of justice.

108 Ground 3 fails.

Leave to appeal against sentence

109 With respect to Counts 1, 2 and 5 (indecent assault) his Honour imposed a fixed term of imprisonment for two years to date from 11 August 2000. In respect of Count 3 (carnal knowledge) his Honour imposed a fixed term of imprisonment for 4 years to commence on 11 August 2000. With respect to Count 4 (buggery) his Honour imposed a sentence of imprisonment for seven years to commence on 11 August 2000 and fixed a non-parole period of four years (to expire on 10 August 2004). In respect of count 6 (act of indecency) his Honour imposed a fixed term of nine months to commence on 11 August 2000. The appellant applies for leave to appeal against the asserted severity of the total sentences and particularly the sentence for buggery which is contended to have been unduly harsh and severe.

110 It is submitted that his Honour fell into error in accepting as a basis for imposing a lengthy sentence the contention of the Crown that the community’s concerns over sexual molestation of children by adults has been acknowledged in legislation by providing increased penalties when the victims are under the age of 16 years. It is further submitted that the offender was entitled to be sentenced in accordance with the law at the time the offences were committed in terms of the statutes and penalties imposed. The submissions go on further to state that “anecdotal” evidence would suggest that the penalties would have been outside the range at the time the offences were said to have been committed (see now, Regina v MJR [2002] NSWCCA 129). Without additional submissions or material from counsel as to sentence range and/or in relation to either repealed or other relevant statutory provisions as to statutory maximums, it seems to me that this submission cannot succeed. In relation to counts 1, 2 and 5 they were laid under s76 of the Crimes Act which provided a maximum of six years as his Honour stated; both the carnal knowledge charge and the buggery charge laid under the then relevant s73 and s79 of the Crimes Act carried maximum penalties of fourteen years. Count 6 laid under s 61E(2) carried a maximum penalty of two years. I see no error therefore in this approach by his Honour.

111 It is next contended that his Honour failed to take into account the “staleness” of the offences. Reference was of course made to the decision of this Court in Regina v Todd (1982) 2 NSWLR 517. In sexual cases it is impossible to lay down any general principle as to the operation of leniency arising from delay as I said in Regina v JR Thompson (unreported, NSWCCA 18 June 1996) where I discussed relevant authorities. I think it appropriate that great caution be exercised in applying the word “stale” to offences of this kind, the more so in a context where there was evidence of a complaint made in general terms about the conduct at the time of the course of the offences and notwithstanding a late formal complaint to the authorities. These are extremely sensitive matters to which the word “stale” in my view is not appropriate. That does not mean of course that a Court should not, in sentencing, or in reviewing a sentence, take into account, if it is appropriate to be taken into account, evidence of “substantial rehabilitation” as mitigating: Regina v JR Thompson (unreported, NSWCCA 18 June 1996).

112 His Honour’s remarks on sentence are thorough, detailed, and well structured. His Honour paid particular regard, as he must, to the objective gravity of the offences, the course of time over which they were committed and the relationship between father and daughter. His Honour expressly had regard to the requirement of general deterrence in circumstances such as this, relying on what was said by Sully and Ireland JJ in Regina v Hudson (NSWCCA, unreported, 30 July 1998).

113 With respect to his Honour’s findings as to the facts and the objective gravity of the offences for which the applicant stood for sentence, I can find no basis for reasonable complaint as to his Honour’s approach.

114 It is argued that his Honour gave insufficient weight to the plaintiff’s age, health, good character and the fact that this was the first time that the applicant would be serving a custodial sentence. The last mentioned proposition is implicit in his Honour sentencing the applicant on the basis of a person of prior good character (ignoring the old offences for dishonesty). His Honour had particular regard to the applicant’s age. He did have regard to and gave him the benefit of his prior good character. He did so in a way that afforded that component of the subjective case appropriate weight. Nothing that the High Court have said in Ryan v The Queen [2001] HCA 21; (2001) 179 ALR 193 inclines me to the view that his Honour was in any way in error in this regard. His Honour took account of the prisoner’s subjective circumstances in terms of his personal relationships. His Honour paid particular regard to the medical evidence placed before him in relation to the applicant’s health, accepting that the 65 year old offender did have a medical condition but nonetheless coming to a view, clearly open to him, that the correctional health service was able to maintain and treat that condition. His Honour appropriately distinguished the case on which counsel for the applicant relied, namely Regina v Cole (NSWCCA, unreported, 29 March 1994), where the clear evidence of depressive suicidal tendencies in the applicant was taken into account in circumstances where that applicant had pleaded guilty. The learned sentencing Judge here was conscious of the circumstances in which this applicant would be serving his sentence, namely to a great extent under protection.

115 As the Crown has submitted, the appellant engaged in sexual offences against his daughter over a number of years. The penalty for the anal sex in my view was not manifestly excessive given the maximum available and the fact that the appellant had by that time committed sexual offences against his daughter on a number of previous occasions. His Honour rightly found the objective gravity of the offences was extremely serious, the appellant being in a position of trust. His daughter was young when the offences commenced and was under his control.

116 It is to be noted also that his Honour found special circumstances, reduced the relationship between the non-parole period and the head sentence in relation to the buggery offence and gave the benefit to the applicant of all sentences commencing from the same date. It would have been open to his Honour to give consideration to questions of cumulation and totality in accordance with the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 624.

117 The applicant has failed to persuade me that there was any error on the part of the learned sentencing Judge in approach, principle and thus outcome. Whilst I would be prepared to grant leave to appeal I would dismiss the appeal.

118 Thus I propose these orders:

(a) Appeal against conviction is dismissed.

(b) Leave to appeal against sentence is granted.

(c) Appeal against sentence is dismissed.

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CITATION:	R v TAB [2002] NSWCCA 274
FILE NUMBER(S):	CCA 60837 of 2000
HEARING DATE(S):	5 & 7 December 2001, 1 March 2002
JUDGMENT DATE:	16 July 2002
PARTIES :	REGINA v TAB
JUDGMENT OF:	Mason P at 1; Sully J at 2; Levine J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/0030
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

COUNSEL :	MC RAMAGE QC (Appellant) EA WILKINS (Crown)
SOLICITORS:	DJ HUMPHREYS (Appellant) SE O'CONNOR (Crown)
CATCHWORDS:	Criminal law - sexual assaults - relationship evidence - complaint evidence - admissibility - evidence of prior good character - jury - verdict taken before question answered or further directions given - principles
LEGISLATION CITED:	Crimes Act 1900 Criminal Records Act 1991 Evidence Act 1995
CASES CITED:	BRS v The Queen (1997) 191 CLR 275 Gipp v The Queen (1998) 194 CLR 106 Hoch v The Queen (1988) 165 CLR 292 KRM v The Queen (2001) 75 ALJR 550 Papakosmas v The Queen (1999) 196 CLR 297 Pearce v The Queen (1998) 194 CLR 610 R v Peake (1996) 67 SASR 297 R v R SCCRM-98-45, SCCRM-98-46 (17 June 1998) Regina v AH (1997) 42 NSWLR 702 Regina v Beserick (1993) 30 NSWLR 510 Regina v CJ Knight (NSWCCA, unreported 18 December, 1990) Regina v Cole (NSWCCA, unreported, 29 March 1994) Regina v Dann [2000] NSWCCA 185 Regina v Hudson (NSWCCA, unreported, 30 July 1998) Regina v JR Thompson (NSWCCA, unreported, 18 June 1996) Regina v Marsh [2000] NSWCCA 370 Regina v McCormack (1995) 85 A Crim R 445 Regina v MJR [2002] NSWCCA 129 Regina v RM Fraser (NSWCCA ,unreported, 10 August 1998) Regina v Robinson [2000] NSWCA 59 Regina v Salama [1999] NSWCCA 105 Regina v Todd (1982) 2 NSWLR 517 Regina v Wheeler (NSWCCA, unreported, 16 November 1989) Ryan v The Queen [2001] HCA 21; (2001) 179 ALR 193 Saraswati v The Queen (1990 -91) 172 CLR 1 Wilson v The Queen (1970) 123 CLR 334
DECISION:	Conviction appeal dismissed; sentence appeal - leave granted, appeal dismissed. See paragraph 118