R v Wackerow

[1996] QCA 269

IN THE COURT OF APPEAL	[1996] QCA 269
SUPREME COURT OF QUEENSLAND

C.A. No. 62 of 1996

Brisbane [R. v. W]

THE QUEEN

v.

W

(Applicant) Appellant

Macrossan CJ
Pincus JA

Byrne J

Judgment delivered 20/08/96

Separate Reasons for Judgment of each member of the Court, all concurring as to the

Orders made.

1.APPEAL AGAINST CONVICTION DISMISSED;
2.LEAVE TO APPEAL AGAINST SENTENCES GRANTED;
3.THE SENTENCES OF THREE YEARS IMPRISONMENT ARE SET ASIDE;

4.INSTEAD, THE APPELLANT IS SENTENCED TO TWO YEARS

IMPRISONMENT FOR EACH OFFENCE.

CATCHWORDS:  Criminal Law - Evidence - Similar Facts - Whether evidence of uncharged incidents of sexual abuse should be excluded -whether evidence tends to prove the offences charged or merely demonstrates a propensity to commit offences of their nature - R. v. Pfennig (1995) 182 CLR 641 considered.

Criminal Law - Evidence - Whether tape recording of conversation with complainant admissible - R. v. Swaffield CA 3 of 1996, 19/07/96 distinguished.

Criminal Law - sentence - relevance of uncharged incidents of sexual abuse to

sentence.

Counsel:	Mr A.J. Rafter for the appellant
Mr D.L. Bullock for the respondent
Solicitors:	H.W. Smith & Associates for the appellant
Director of Public Prosecutions for the respondent
Hearing Date:	1 May 1996

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

The relevant facts are set out in the reasons of Byrne J.
which I have had the advantage of reading and the issues arising
on the appeal are explained both there and in the reasons of
Pincus J.A. I am indebted to them for their statement of these
matters. I have arrived at the same conclusion as they have in
respect of the appeal against conviction and the application for
leave to appeal against sentence. In the circumstances I am
able to curtail what I would otherwise have found it necessary
to express.
In respect of the conviction appeal, I wish to add some
observations in respect of the evidence from the complainant of
the commission by the appellant of other offences consisting of
sexual transgressions against her which were not charged. On
the other grounds taken on the conviction appeal I express my
agreement with what has been said by Byrne J.
It appears that the recent High Court case of Pfennig
(1995) 182 CLR 461 should now be regarded as the governing
authority in all cases where issues arise concerning the
admission of similar fact or propensity evidence. The judgments
in Pfennig review the evolution of the relevant rule, whose
earlier origins are usually encompassed by a reference to
Makin's case [1894} A.C. 57, through such other leading
authorities as Boardman [1975] A.C. 421, DPP v P, [1991] 2 A.C.
447, and Hoch, (1988) 165 C.L.R. 292, up to the present time.
The rule has been concerned with the admissibility in criminal
trials of evidence tending to show that an accused person has
been guilty of criminal acts which are not charged. There is
obvious concern with the damage to justice which can result from
uncontrolled admission of such evidence.
In the early part of the period following Makin, it was
thought that evidence of the kind referred to was inadmissible
unless it fell into some exceptional category. In the more
recent period, effectively starting with Boardman, the basis of
admission has changed from one requiring identification of
special categories justifying admission to a different broader
principle which calls for a decision whether the probative force
of the evidence in question outweighs the prejudice to the
accused which the admission of it would involve.
The joint judgment in Pfennig appears to make it clear that
the single principle just mentioned applies to all cases when
evidence is tendered to prove the admission by the accused of
criminal offences not charged and it also establishes that the
principle is to be characterised as a rule of law which governs
admissibility and not as a rule of discretion. The reasons of
McHugh J. in Pfennig appear in this respect to be to the same
effect, and the reasons of Toohey J. appear to differ only by
retaining some part for the exercise of a parallel discretion.
The reference in the present context to prejudicial effect
is to the "undue impact, adverse to an accused, that the
evidence may have on the mind of the jury over and above the
impact that it might be expected to have if consideration were
confined to its probative force": Pfennig (supra) at 487-8. A
helpful comparison may be made with the observations of Lord
Cross in Boardman (supra) at 456 as quoted in Pfennig (supra) at
478. He said "that the general rule for exclusion of propensity
evidence is not for the reason that the law regards such
evidence as inherently irrelevant, but that it is believed that
if it were generally admitted jurors would in many cases think
that it was more relevant than it was, so that ... its
prejudicial effect would outweigh its probative value".
At the beginning of the joint judgment in Pfennig it is
noted that there is variability in the descriptions given to the
evidence falling into the broad class where this particular
problem of admissibility can arise. It may be called similar
fact evidence, relationship evidence, identity evidence, or
something else because "(t)hose categories are not exhaustive
and are not necessarily mutually exclusive". However, the joint
judgment accepts that the evidence is always embraced within a
class which can be described as "propensity" evidence. Judgment delivered 20/08/1996. single principle, calling for the balancing exercise which has been mentioned, it seems that its application may call for concentration on aspects that can vary depending on the circumstances involved. So much appears to be accepted by the quotation with apparent approval in the joint judgment in Pfennig (supra) at 479 from the judgment of the Lord Chancellor in Director of Public Prosecutions v. P. (supra) at 460. The Lord Chancellor, speaking of the high level of persuasion in the probative force which is the essential feature if the evidence is to be admitted, recognised that the probative force may be derived from striking similarities found in the evidence but added that "... restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it and is not justified in principle."

Then at 462 he said:

"Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle."

The joint judgment in Pfennig at 482, in a context involving a reference to Hoch (supra), indicates that it should not be understood that an extra "striking similarity or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case." At 483 it is accepted that the probative value of evidence of the broad class under consideration varies "in relation to the circumstances of particular cases". McHugh J. at 529 accepts that "each case turns on its own facts". It appears that recognition of this does not involve any qualification of the fact that behind the consideration of details which may be necessary in particular cases, there is a single legal principle which in all the "propensity" cases governs admission.

It may assist clarity in treatment of the present case to specify more precisely the category with which we are concerned.

This case falls into the class of cases where a single complainant has alleged sexual transgressions against her by a single offender on a number of separate occasions of which, in the end, only some (here two, in fact) remain for consideration on the indictment, with the accused denying all of the instances whether charged or not.

The perspective called for in applying the admissibility test in such a case will differ in some respects from that adopted in Pfennig. In that case the evidence sought to be introduced consisted of an episode, not denied by the accused, where there were features which could be relied on to prove the identity of the offender who committed the different crime that had been charged. The extent to which there were common features between the two occasions relevant in that case obviously was of great importance in deciding on the level of support that the similar episode gave to the issue which had to be proved namely that the accused was the one who had committed the crime charged, the murder of the boy.

In the present case, in deciding on the probative force of the additional episodes alleged apart from those charged on the indictment, the trial judge and, after admission of the further evidence, the jury were not called upon to concentrate upon any search for striking similarity, underlying unity or signature shared by the two bodies of evidence. It would have been appreciated that proof of the Crown case charged, although assisted by some supplementary pieces of evidence, depended fundamentally upon acceptance of the complainant's word against the denials of the accused. In considering that issue, the judge and the jury not only had her description (and his denials) of two episodes, but also her allegations of additional occasions of sexual interference. The common experience of the courts (cf. McHugh J. in Pfennig at 523-525) has been that evidence of that kind is admitted in these circumstances. It is justified by a description of the class of evidence as going to show "guilty passion" or constituting "background" clarifying the relevant relationship between the two protagonists. Cases in this category should now, following Pfennig, be seen, not as ones where the additional evidence will routinely be admitted, but as ones where legal admissibility will need to be determined by resort to the single test stated in that case and referred to above. It can be expected that the form in which the test is stated in the joint judgment will enjoy particular authority.

Our attention was directed on the hearing of this appeal to a recent decision of this Court, R v. M (C.A. No. 72 of 1996, judgment 12 July 1996, unreported) but in deciding the issues there arising no examination was undertaken of the effect of Pfennig on earlier authorities. The observation may also be recorded that in other jurisdictions attention continues to be given in the post Pfennig era to the question of admissibility of "relationship" evidence which involves reference to episodes not charged: see R v. Vonarx (No. 181 of 1995, Court of Appeal Victoria, 15 November 1995, unreported), and R v. Ritter (No. 60485 of 1994, NSW Court of Appeal, 31 August 1995, unreported). Putting aside the change in circumstances introduced by the amendment to the Criminal Code to be found in s.229B enabling the Crown to charge "maintaining a sexual relationship", a question which will arise is why, if the Crown wishes to allege additional episodes, it has not charged them. There would be no legal impediment in cases of this kind to joining episodes as additional counts on a single indictment and no reason why, if charged together, they should not proceed to resolution in the course of a single trial. Policy considerations would support the justice of making available for determination in a single trial, all of the allegations made by the one complainant. Justice is served by providing the opportunity for a consistent approach to determination of multiple allegations of this kind and there is an obvious desirability in allowing a single jury to hear the full story before deciding upon the acceptability of a complainant's allegations.

In the present case the Crown has not charged all of the alleged episodes, but it does not follow that if the Crown does not charge the further episodes, it should not be permitted to give evidence of them. There can be practical reasons why a jury's task of matching a large number of separate allegations to an equally large number of charges should not be made unnecessarily difficult. There is the usual obligation of the Crown to particularise charges when demand is made and there may result some formal difficulty in responding when there are large numbers of charges and the details of recollections emerging in the evidence are imprecise. However, because there may be difficulties for the Crown in particularising or in separating the evidence relevant to a large number of charges does not mean that there may not be an injustice to the accused in the conduct of his defence if the Crown is allowed to introduce all of the allegations in an undifferentiated mass, whether charged or not.

In the end, the Crown will be concerned to charge a sufficient (not necessarily large) selection of available offences because, assuming that guilty verdicts result, when it comes to sentencing, the judge will not be able to take into account alleged offences not represented by the actual verdicts. The reasons for this are sufficiently set out in the reasons of Pincus JA and Byrne J with which I express my agreement.

In a case like the present when the Crown tenders evidence of additional offences not charged, the application of the relevant test will direct attention in a particular way to the balancing considerations involved. The answer on the question of admissibility will depend upon how many offences are charged and how many additional ones are sought to be referred to and the circumstances of each. Reference to additional offences supported by the testimony of a single complainant may, from one point of view, be productive of little or no prejudice, that is an undue adverse impact in the sense described above, because all will depend in the jury's mind on the credibility, overall, of the testimony of the single complainant whom they will have the advantage of seeing and hearing. In the circumstances, there will not be a particular danger of their returning verdicts which are other than essentially related to the acceptability of the complainant's testimony.

If many offences are charged and only an additional one or two are sought to be referred to, it might be said that the probative effect of the additional offences supported simply by the allegations of the single complainant envisaged in the example, will not be great but neither will be their prejudicial effect. The dimensions of the question for the jury will not be much changed. The question for their resolution will remain as before, namely whether they accept the complainant's word with little, if any, additional assistance being gained from her reference to another one or two instances when similar conduct may have occurred.

In cases in this general category, the probative effect of evidence of additional episodes may be considerable depending on the number of instances involved and their circumstances, because in filling out the complainant's story, the evidence may provide helpful insights into the relationship between the two persons involved and be far from constituting mere "make weight". The admissibility question will, however, present itself in the same ultimate form, calling for a balancing exercise with a particular cogency in the additional material being necessary to make it admissible.

It is probably desirable to say that the emphasis which this case has caused to be given to one category amongst the many examples of "propensity" evidence which might arise for consideration should not be permitted to obscure the fact that quite different aspects may be central to the resolution of the admissibility question in those other cases as, for example, in an identity case like Pfennig itself.

Having agreed with the conclusions reached by Pincus JA and Byrne J in respect of the appeal against sentence, I wish only to add some observations about D's case (1995) 80 A.Crim. R. 50.

In D, it is obvious that particular care was taken in the formulation of principles which it was hoped would provide guidance in sentencing. Without suggesting any modification of the principles in the form in which they there appear, I desire to express my understanding of how, in some circumstances, they can operate.

I take principle 1(b) and principle 1(c) to be concerned with the kind of situation referred to in D.P.P. v. Merriman [1973] A.C. 584 at 592-3, R v. Morrow and Flynn [1991] 2 Qd. R. 309 at 311-2, R v T [1993] 1 Qd. R. 454, R v. Condon C.A. No. 175 of 1993, unreported judgment 6/8/93 and R v. Harris (John) [1969] 1 W.L.R. 745.
In the course of what in commonsense would be regarded as a single continuous episode of assault, a number of separate blows might be struck but they would not require to be separately charged. Assuming that a conviction resulted, all of the constituent activity could then be regarded in deciding upon an appropriate penalty.

In the course of committing a rape, when again what fundamentally would be regarded as a single continuous episode appears, there may have been actions carried out by the offender which, separately regarded, could be characterised as assaults or indecent assaults. These may have occurred, before, during or after the act of penetration central to the offence of rape charged. In commonsense and fairness, these additional acts could be regarded both from the point of view of admissibility and for the purpose of sentencing as simply part of the rape. On the other hand, I do not suggest that either in commonsense or fairness evidence of the central rape could be regarded if it were not charged and only the assaults of the kind envisaged in the example were charged. The rape would then fall within the proscription stated in D in principle 2(b).

I take 2(a) to refer to a case where part of the surrounding circumstances or attendant background may be significantly spaced in time and place from the acts constituting an offence charged. This additional activity, if referred to, may be capable of revealing the character or seriousness of the offence charged, and be persuasive that the offence has taken place. If this is so, the circumstances and background may be referred to both in proof of the offence and on sentencing unless they establish the commission of separate offences, in which case, unless they have been separately charged, they cannot be regarded on sentencing and if not separately charged, the admissibility of evidence concerning them in proof of the commission of the act charged will be controlled by the Pfennig rule.

I take 2(b) to cover the case where actions occur as part of a single continuous episode and, as in the examples above, they might be included within the charge of a single offence but this will not be so if they constitute a more serious offence or offences than the offences which have been charged. The reference in 2(b) will not be to offences which are other than part of a single continuous episode because they would then be excluded as "separate" under 2(a) without the need for recourse to the test of being "more serious" under 2(b).

In respect of the sentences in the present case, I agree with the order proposed by Byrne J.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 20/08/1996

The facts of this case and the arguments advanced are set out in detail in the reasons of Byrne J. and I gratefully adopt his Honour’s explanation of them; subject to what follows, I agree in those reasons. I have noted that his Honour, as to the taped conversation which took place at the instigation of the police, says that this case should be decided by reference to the decisions of this Court in O’Neill (1995) 81 A.CrimR. 458 and Davidson and Moyle (C.A. 511 of 1994, 8 September 1995); I agree. The outcome of the appeal, and that of the application for leave to appeal against sentence, appear to depend mainly on the effect to be given to two recent decisions, one of the High Court and one of this Court.

The most substantial point taken by Mr Rafter, for the appellant, related to the use below, both as relevant to conviction and as relevant to sentence, of evidence of uncharged incidents somewhat similar to the sexual offences charged. The test for admission of such evidence at trial appears to have been altered, if statements in the principal judgment in Pfennig (1995) 182 C.L.R. 641 are to be treated as authoritative as to circumstances of the present sort. In that case, Pfennig was convicted of the murder of a boy, partly on the basis of evidence that a year after the alleged murder, he abducted and raped another boy. The High Court affirmed the conviction, holding that, in the circumstances of the case (which I do not here set out), the later offences were properly proved as propensity evidence; the reasons of Mason C.J., Deane and Dawson JJ, begin as follows:

"This appeal raises questions as to the admissibility of what has been described as propensity or similar fact evidence and the use to which it can be put. There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence."

The broad category spoken of is "evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged"; that description includes evidence of the present kind, the relevance of which is to show sexual attraction towards the complainant: B (1992) 175 C.L.R. 599 at 618. In a passage quoted in Pfennig (at 500), Dawson and Gaudron JJ. in B noted that evidence of the kind in issue in B (being the same kind as that presently in issue) is:

" . . . evidence of propensity or disposition of a particular kind which in the circumstances has a degree of relevance justifying its admission". (618)

What the principal judgment in Pfennig does is to extend the reasoning in Hoch (1988) 165 C.L.R. 292, to propensity evidence generally; Hoch was a case concerning the admissibility, on a charge of sexual offences against one child, of evidence of similar offences committed against other children. In Hoch, the relevance of the evidence being discussed was said to consist "in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged" - see Pfennig at 481.

This might be thought to mean that there is no reasonable explanation other than that the accused is presumably guilty. But the passage in the principal Pfennig reasons which immediately follows proposes a test which is perhaps more favourable to admission:

" . . . the objective improbability of [the evidence] having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty . . . ". (emphasis added)

Support for an inference may be weak or strong, but other passages in the judgment make it clear that only strong support will do.

The distinction between the relevance of the Pfennig evidence and that which is in issue here is that Pfennig’s later criminal acts showed a propensity to commit certain types of attacks on boys; here the propensity relied on does not relate to girls generally, but to a particular girl, and of course the acts which the propensity is alleged to lead to are of a rather different character from those relied on in Pfennig. Nevertheless, it is, as it seems to me, improbable that the principle stated in the main judgment in Pfennig was not intended to cover propensity cases of the present kind; I find it difficult to discern a convincing means of distinguishing the rule laid down in Pfennig so as to make it inapplicable to this appeal. I notice that in the reasons of the President in K (C.A. No. 82 of 1995, 29 August 1995) it is suggested (at 25) that evidence like that objected to here should be subject to the test for propensity evidence established in Hoch and Pfennig; but his Honour did not find it necessary finally to decide the point.

Applying, then, the principle that the evidence here in question was inadmissible unless there was no reasonable view of it "other than supporting an inference that the accused is guilty" (Pfennig at 481) and keeping in mind that the support must be strong or cogent, I have come to the conclusion that the evidence was properly admitted. If the jury believed the evidence about the uncharged occasions, it must have come to the conclusion that the appellant had a marked sexual interest in the complainant child and an inclination to manifest that interest physically; that conclusion, if accepted, must have made a guilty verdict on the offences charged one which a rational jury would much more readily reach.

I therefore agree with the conclusion of Byrne J. that the evidence in question was properly admitted.

As I have mentioned, an issue was also raised as to the relevance of the uncharged incidents to sentence; the principal authority is the decision of this Court in D (1995) 80 A.Crim.R. 50. In his reasons, Byrne J. adopts the view that the judge was in error insofar as he took into account the uncharged incidents.

His Honour relied on D, which sets out the relevant principles. Those which

have special bearing upon the present case are as follows:

"1.	Subject to the qualifications which follow:
. . .
(b) commonsense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes . . .; and
(c) an act, omission, matter or circumstance within (b) which
might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be

permissible otherwise to take into account may not be taken into
account if the circumstances would then establish:

(a) a separate offence which consisted of, or included,

conduct which did not form part of the offence of which the
person to be sentenced has been convicted;
. . . "

Subject to a difficulty about particularisation, which would I take it be irrelevant for present purposes, the applicant might have been charged with and convicted of the offences constituted by the uncharged incidents. Further, it would not seem possible to describe any of them as forming "part of" the offences of which the applicant has been convicted: see para. 2(a). If one had regard only to para. 1(b) and (c) without reading on, it might have seemed possible to treat the uncharged incidents as "attendant circumstances" and the fact that each would constitute a separate offence would not under 1(c), necessarily exclude them from consideration. But the introduction to para. 1 shows that it is subject to "the qualifications which follow" and they must include the content of para. 2.

Putting the matter more simply, it appears to me to follow from D that uncharged offences cannot be considered as "attendant circumstances" for sentencing purposes unless they are "part of" the offence of which the person in question has been convicted. I would take it that "part of" is not to be interpreted narrowly, so that (to take an example mentioned during the course of argument) it would be permissible on sentencing for rape to take into account an earlier assault by which the victim was subdued, to facilitate the rape; I assume that such an assault, although not in the legal sense forming part of the rape, could be considered on sentence as being part of a connected series of incidents of which the major element was the rape.

But even if the present matter is approached in a similar way, it seems to me clear that one could not, consistently with D, take into account on sentence uncharged sexual offences whose only connection with those charged is that they show that the offences charged were not isolated instances, or show that the offender had a propensity to engage in sexual acts with the complainant. I should add that in my view the approach to this question taken by the Court of Criminal Appeal in Cooksley [1982] Qd.R. 405, and in Jobson [1989] 2 Qd.R. 464 is irreconcilable with D. The same must be said of the principal judgment in K (C.A. No. 269 of 1993, 22 October 1993); see especially pp. 11 and 12 of the reasons of Davies J.A. and Thomas J. In Savvas (1995) 183 C.L.R. 1, where the convictions were for conspiring to import heroin and conspiring to supply it, there was no charge of importing or supplying heroin, but evidence was led that Savvas had both imported and supplied it, in large quantities. In the Court of Appeal, Kirby P. (as his Honour then was) pointed out with respect to conspiracy that the crime consisted in the agreement, not its execution, (58 A.Crim.R. 174 at 184) and would have held that Savvas had been punished for offences of which he had not been convicted; the High Court did not agree. The basis of his Honour’s view was that the sentence imposed had been augmented on account of acts of importation and distribution which the judge was satisfied had occurred (58 A.Crim.R. 174 at 175, 176). It had been said (in Hoar (1981) 148 C.L.R. 32 at 38) that:

" . . . where a court, imposing a penalty for conspiracy, takes into account the overt acts of conspiracy, it would be wrong to impose a further penalty in respect of those acts."

Although the primary judge disclaimed any intention of imposing sentences which included extra time for the uncharged offences (183 C.L.R. at 7), that is what he did; his Honour plainly took the uncharged offences into account and equally plainly, not by way of mitigation. Savvas is authority for the view that on a charge of conspiracy to commit e.g. robbery, the Crown may if it gets a conviction for conspiracy ask the judge to find the offender guilty, also, of a robbery or robberies committed in consequence of the conspiracy and take them into account on sentencing for the conspiracy. Relating this to the D principles, it seems that the robberies would be treated as "part of" the conspiracy, because committed in implementation of it.

Of course, a conviction of maintaining an unlawful relationship, under s. 229B of the Code, leads to sentencing for the maintaining of the relationship, not merely for the identified acts which the Crown must prove to satisfy the requirement in the second paragraph of s. 229B(1).

The third principle set out in D makes it clear that in the present case the uncharged incidents, not falling within an exception recognised in the stated principles, could not be "considered for any purpose". I agree with the orders proposed by Byrne J.

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 20/08/96

At his trial in the Cairns District Court, the appellant was convicted on two charges of indecently dealing with a girl. He appeals against the convictions and seeks leave to appeal against the sentences of 3 years imprisonment.

In 1989 the complainant, then 10 years old, lived with her parents at Hammond Island, which lies not far from Thursday Island. The appellant, who managed a swimming pool on Thursday Island, used to visit Hammond on weekends to stay with relatives of the complainant. He met her there.

Towards the end of 1989 the complainant journeyed to Thursday Island with her mother, who was to play basketball. After the game, the complainant's mother returned home. The complainant was left to spend the night with the appellant at his house. The mother and the appellant were friendly.

According to the complainant, that night, while she and the appellant were lying side by side in a double bed, the appellant kissed her: first on the lips; then down the chest. The appellant next moved her legs apart and started licking her vagina, she testified. This incident was charged as the first count.

The complainant's parents separated early in January 1990. The girl stayed

The complainant occasionally travelled to Thursday Island, staying overnight
with her mother and the appellant. She slept between her mother and the appellant
in a double bed. On these nights, she testified, "the same sort of thing ... would
happen most times": the appellant tried to put his finger into her vagina. Typically
she reacted, she said, by rolling over and waking her mother up by bumping her.
Eventually, a single bed was procured for her and put into the room adjacent to the
bedroom of her mother and the appellant. The appellant's sexual interest in her
continued. Sometimes she woke up in bed to find him watching her. At other times,
she testified, he tried to put his finger inside her vagina when she appeared to be
asleep. She prevented penetration by rolling over or else covering herself with a
blanket. These incidents, which are not referred to in the indictment, were related to
the jury just before the complainant spoke of the episode charged as the second
offence.
One night, while she was in the single bed, the complainant felt someone
watching her. Then she had a "strange feeling" on her lips. She opened her eyes
sufficiently to see what was happening. The appellant was leaning over her. His
penis was on her lips. She told the jury that "he put it into my mouth and he was
moving it in and out" while making sounds of heavy breathing. She rolled over,
ending the encounter. The complainant returned to Hammond next day and told her
father about the incident. The father testified that this happened in April 1992. The
complainant was then 13.
After "a long time", when "about 14", she said, the complainant began visiting
her mother and the appellant again. One night in late 1994, at some unspecified time
after the visits had resumed, the complainant woke up sensing someone looking at
her. She opened her eyes to see the appellant beside the bed "playing with his penis".

with her father. Her mother went to live with the appellant on Thursday Island. second day of the trial, the prosecutor elected not to proceed on this charge because the evidence indicated that the appellant had thought the complainant to be asleep.

The existence of sexual activity between the appellant and the complainant

The father testified to fresh complaint. In April 1992, he said, his daughter
put her arms around him and started to cry. He asked her what was the matter. She
said, "I've got something terrible that I want to tell you." He could not remember her
exact words, although "it was something to do with the fact that things of a sexual
nature had occurred" with the appellant. About 4 days later, at a meeting arranged
by the mother, the father confronted the appellant. He told him that the girl had said
that the appellant had done things to her and that he wanted to find out the truth.
His complaint was of "some sort of sexual acts". According to the father, the
appellant's response was "yes", adding by way of explanation that the girl had been
"sexually aggressive". The father spoke of going to the police and suggested to the
appellant that he leave the island.
In February 1995 the complainant telephoned the appellant. The conversation
was tape-recorded. She said, "I just wanted to know why you took advantage of me
when I stayed at mum's place like you touch me or ...". The appellant interrupted,
"What are you talking about?" The complainant said: "You know the time when you
made me give you a head job and all that sort of stuff". "Lie T", the appellant replied.
She continued, "I'm not lying W". He responded, "it's stuff you wanted to do lovey".
The first ground of appeal relates to uncharged incidents between the first
and second offences. It is said that the evidence of them should have been excluded.
The complainant's testimony concerning the uncharged incidents showed the
appellant in a discreditable light, depicting him as someone likely to commit offences
of a sexual nature against her. Risks to the fairness of a trial commonly associated
with such evidence are that the jury might (i) convict largely because of the
propensity; or (ii) seek to punish for misconduct other than that charged; or (iii) being
distracted from the real purpose of its deliberations, substitute a conviction for other
misconduct for a verdict on the charged incidents: see R.v. B. (F.F.) [1993] 1 SCR 697,
708, 734. If the evidence were relevant solely because it tended to demonstrate such a
propensity, its prejudicial potential necessarily transcended its probative effect, and
the testimony should not have been received.
Evidence proving uncharged sexual offences has often been admitted as
tending to prove the specific crimes charged, not just a propensity to commit offences
of their nature. Accordingly, "sufficiently probative evidence of other acts of indecent
dealing ... may be admissible on a charge of indecent dealing": R. v. M [1995] 1 Qd R
213, 220. Such evidence may suggest a sexual attraction "sufficiently relevant to
justify its admission to prove the commission of the offences ... charged,
notwithstanding the inevitable prejudice ... ": B. v. The Queen (1992) 175 CLR 599,
per Dawson and Gaudron JJ at 618; cf. per Brennan J at 608 and Deane J at 610;
Pfennig v. The Queen (1995) 182 CLR 461, 500-501 per Toohey J. Sometimes the
testimony can be vital to an intelligible presentation of the case; or it might set a
context essential to a proper evaluation of the controversy. Relationship evidence
may matter for several reasons: R. v. Dolan (1992) 58 SASR 501, 503; R. v. Beserick
(1993) 30 NSWLR 510, 515; R. v. Sakail [1993] 1 Qd R 312, 316; R. v. M, CA 72 of 1996,
12/07/1996. Yet evidence of other sexual activity between a complainant and an
accused is not always admissible. For example, the events may be so distant from
those charged as to lack probative effect: cf. Petty v. The Queen (1994) 13 WAR 372.
More generally, as Fitzgerald P said in R. v. K, CA 82 of 1995, 29/08/95, at 26,
sometimes "relationship evidence does not logically add to or detract from the
probability that disputed critical matters occurred". If, however, the testimony
matters beyond predisposition, and its probative value plainly outweighs its
inherently prejudicial potential, the evidence is admissible.
In this case, the risk of prejudice to a fair trial was slight. The evidence
objected to was that of the complainant herself, and it related to sexual activity no
more serious than that charged. The additional evidence was in narrow compass and
presented no appreciable risk that it might lead to confusion or distract the jury from
its proper functions. All considered, the testimony concerning the uncharged
incidents was most unlikely to lead the jury to convict without being convinced that
the evidence about the offences charged was truthful: cf. R. v. Accused (CA 247/91)
[1992] 2 NZLR 187, 192. On the other hand, her testimony about the other incidents
had probative worth beyond its tendency to prove a relevant propensity. It may
have helped to persuade the jury of the accuracy of her account of the two charged
offences for a reason other than that it portrayed the appellant as someone disposed
to deal indecently with her. The other sexual activity indicated an ongoing sexual
attraction. It could have resolved any doubts concerning the reliability of her account
of the two incidents charged that might otherwise have arisen from restricting the
evidence to telling of isolated acts occurring some time apart. In that interval, there
were opportunities for the gtg appellant to have indulged his inclinations were he
attracted to the girl. She revealed to the jury that he had exploited these moments, as
might have been expected if her story about the charged incidents were true. Her
evidence about the uncharged incidents was distinctly capable of bolstering the
credibility of her account in relation to the offences. The judge was right to admit it.
Next, it is said that the recording should not have been received. One
contention is that the appellant had difficulty in understanding what was said to him.
But his responses related sensibly to the complainant's questions and assertions; so
the significance to be accorded to his words was a jury matter. Then it is said that the
utterance "it's stuff you wanted to do lovey" was equivocal. Plainly, this statement
was capable of being regarded as an admission of sexual activity between them.
Accordingly, its significance also fell to be assessed by the jury. Then there is a
complaint that the appellant's assertion that the sexual activity was consensual was
inconsistent with the complainant's testimony, "allowing the jury to speculate on
evidence which was prejudicial without being probative". It is true that the claim
that the indecent dealing was consensual was opposed to the complainant's account,
but that is scarcely a basis for withholding the conversation from the jury's
consideration.
Since the appeal was argued, R v. Swaffield, CA 3 of 1996, 19/07/1996, has
been decided. As the tape-recorded conversation took place at the instigation of the
police with the object of securing incriminating statements from the appellant, Mr
Rafter has asked that the ground relating to the reception of the recorded
conversation be reconsidered in the light of that case.
It is unnecessary to consider Swaffield at length. There a majority of the
Court concluded that a secretly recorded conversation involving an undercover
police officer should have been excluded as unfairly obtained. There had been an
investigation by the police of an offence of arson. When the police tried to discuss the
matter with the accused, he declined to be interviewed. After that, he was charged
with the offence. Later on, the undercover agent met him during an investigation of
drug offences. In their conversations, the accused was "interrogated", as Helman J
put it, by the undercover agent about the arson for the purpose of obtaining
admissions. The deception practised by a police officer was regarded as a significant
transgression upon the accused's previously asserted claim to silence. The peculiar
features in Swaffield are not present in this case, which falls instead to be decided by
reference to R v. O'Neill (1995) 81 A Crim R 458 and R v. Davidson and Moyle, ex
parte The Attorney-General, CA 511 of 1994, 08/09/1995. Consistently with the
reasoning in those cases, it cannot be concluded that the judge's discretion miscarried
when he declined to exclude the conversation from the jury's consideration.
The notice of appeal complains of incorrect directions on corroboration. This
ground was not pursued. No other complaint was made about the summing-up, and
it was not suggested that the reception of the evidence of the episode in late 1994
mattered. There was a submission that the verdicts are unsafe. No particulars of this
contention were provided, and there is no substance in the point. The appellant
testified, denying the charged incidents. Some of his testimony had a measure of
support from the complainant's mother. There were, however, no discrepancies in
the complainant's account at the trial; nor was there any inconsistency with
statements made by her previously. Only the testimony adduced in the defence case
was capable of raising a reasonable doubt, and it did not require such a conclusion.

received support from her father and a tape-recorded conversation. although he did contradict all the material allegations in the complainant's testimony. He claimed that the complainant had been sexually aggressive towards him. The jury was entitled to act on her version and, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt.

Leave is sought to appeal against the sentence.

In his sentencing remarks, the judge said that he took into account the uncharged incidents as "relevant" in showing that the two offences were not "isolated instances". This was a material error. As this Court said in R. v. D [1996] 1 Qd R 363, 404:

"To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences. A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted."

The appellant was born in 1958. He was married with two small children.

The two offences, especially the second, were serious and, as might have been
expected, they had a deleterious effect on the complainant. There was no sign of
remorse. Even so, cases such as D, Solway, C.A. 164 of 1995, 22/08/1995, Brown,
C.A. 289 of 1995, 23/10/1995, and Pham, C.A. 435 of 1995, 06/02/96, indicate that the
sentences were manifestly excessive.

He was a first offender. allowed. The sentences of three years' imprisonment should be set aside. Instead of them, the appellant should be sentenced to two years' imprisonment for each offence.

The appeal against conviction should be dismissed.