RGM v R

[2012] NSWCCA 89

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	RGM v R [2012] NSWCCA 89
Hearing dates:	16/03/2012
Decision date:	15 May 2012
Before:	McClellan CJ at CL at [1] Johnson J at [2] Fullerton J at [3]
Decision:	Leave is granted to extend the time for bringing the appeal. Appeal against conviction allowed. Conviction on both counts on the indictment is quashed. Order a new trial.
Catchwords:	CRIMINAL LAW - appeal against conviction - aggravated sexual intercourse - whether trial judge erred in directions concerning use of relationship or context evidence - credibility of complainant - tendency evidence - whether trial judge failed to properly put defence case - whether trial judge erred in directions concerning assessment of evidence of child witnesses
Legislation Cited:	Crimes Act 1900 Criminal Appeal Rules Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	CMG v R [2011] VSCA 416 Crampton v R [2000] HCA 60; 206 CLR 161 Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 Germakian v R [2007] NSWCCA 373; 70 NSWLR 467 KTR v R [2010] NSWCCA 271 DJV v R [2008] NSWCCA 272; 200 A Crim R 206 Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397 NJB v R [2010] NTCCA 05 Peacock v R [2008] NSWCCA 264; 190 A Crim R 454 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 R v Barker [2010] EWCA Crim 4 R v Lawrence [1980] 1 NSWLR 122 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 Wong v R [2009] NSWCCA 101
Category:	Principal judgment
Parties:	RGM (Appellant) The Crown
Representation:	Counsel: S Corish (Appellant) N Noman (Crown) Solicitors: Michael Croke & Co (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/6957
Publication restriction:	Non-publication order on the name of the appellant and the name of the complainant
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-06-04 00:00:00 Before: Ellis DCJ File Number(s): 2009/6957

Judgment

1. McCLELLAN CJ at CL: I agree with Fullerton J.

1. JOHNSON J: I agree with Fullerton J.

1. FULLERTON J: On 4 June 2010 the appellant was convicted after trial of two counts of aggravated sexual intercourse with the complainant without her consent contrary to s 61J(1) of the Crimes Act 1900. The circumstance of aggravation was by reason of the complainant's age. She was 14 at the time of the offence charged in the first count and 14 or 15 at the time of the offence charged in the second count. He appeals his conviction on both counts.

1. On 29 June 2010 the appellant was sentenced to imprisonment for an effective term of 10 years with a non-parole period of 6 years. There is no application for leave to appeal against sentence.

The application for leave to appeal out of time

1. A notice of intention to appeal was filed personally by the appellant on 30 June 2010. That notice expired on 31 December 2010. An application for leave to appeal was filed on 26 September 2011 together with an application for an extension of time within which to bring the appeal. The Crown opposed leave being granted and relied upon its written submissions. The appellant did not file any written submissions in reply to the Crown's opposition to leave being granted.

1. The appellant relied upon an affidavit of Sophie Evans, a solicitor employed by the firm of solicitors to whom the matter was assigned by the Legal Aid Commission in October 2010, a time when the notice of intention to appeal was still current. Ms Evans took immediate steps to notify this Court of her receipt of instructions.

1. On 17 December 2010 she was supplied with the available transcript from the Reporting Sevices Branch together with their advice that there was no transcript available for the proceedings on 8 June 2010. She immediately thereafter briefed counsel with the transcript which was available. She then sought to obtain a copy of the transcript of the proceedings of 8 June 2010 in order to brief counsel with the complete transcript. The transcript was not made available until 22 August 2011. She also deposed to the fact that a copy of a jury note was missing from the trial papers as a further explanation for the delay in prosecuting the appeal. The jury note was made available on 13 September 2011.

1. The Crown relied upon R v Lawrence [1980] 1 NSWLR 122 at 148 as authority for the proposition that where there is any considerable delay in prosecuting an appeal exceptional circumstances will be required before the appeal is permitted to proceed. The Crown also emphasised the clear public interest in the avoidance of delay in bringing appeals to this Court and the powerful policy considerations underpinning the finality of judicial decisions (see Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [38]).

1. The Crown did not submit that the proposed grounds of appeal were so lacking in merit that leave should be refused for that reason. It relied upon what was said to be an inadequate explanation for the delay of 15 months from the date of sentence to filing of the application, in that it should have been apparent from the transcript of proceedings on 4 June and 25 June 2010, which was available to be briefed to counsel, that nothing of any significance would have occurred on 8 June (two days after verdict). The Crown also relied upon the fact that Ms Evans does not say when she realised the jury note was missing and what efforts were made to obtain a copy of it.

1. Although there is no evidence of any contact between Ms Evans and counsel as to to the potential significance of the missing day's transcript or the missing jury note there is nothing to suggest that Ms Evans was other than genuinely concerned to ensure that counsel was briefed with all appropriate materials. The jury note was ultimately relied upon in the filed submissions in support of Ground 3(b) of the appeal.

1. I am not persuaded that the delay of 15 months is inordinate, necessitating a finding of exceptional circumstances before leave will be granted or that the explanation for the delay is inadequate. Where the Crown does not submit that the appeal is without merit, I am satisfied that the interests of justice require that leave should be granted to extend the time for bringing the appeal. In coming to that view I have given consideration to the legitimate expectations of witnesses, victims and the family of victims that criminal proceedings are at an end where the time limit for bringing an appeal set by the Parliament has expired and, in this case, that a successful appeal against conviction may result in witnesses giving evidence a third time after an earlier trial did not proceed to verdict. In that regard I note that the complainant's evidence was received in the subject trial by the tender of an electronic record of her evidence at the first trial.

The appeal in summary

1. The appellant was the complainant's stepfather. He commenced a relationship with the complainant's mother when the complainant was 3 years of age and moved into the family home when she was 6. The appellant and the complainant's mother subsequently had two children who were aged 8 and 9 at the time of the offences.

1. The charges relate to two discrete incidents that occurred in the family home in February 2007 when the complainant was 14 and then again either just before or just after her 15th birthday in October 2007. She was 17 years of age when she gave evidence.

1. The incident the subject of the first count occurred in her parents' bedroom after the appellant got into bed with the complainant when she was watching television. The incident the subject of the second count occurred in the lounge room after she had fallen asleep while watching television and after her younger siblings had gone to bed. On both occasions the complainant believed her mother was somewhere in the house although she did not know where. There were no witnesses to either incident.

1. The way the trial judge suggested the jury should assess the complainant's evidence is the subject of the second ground of appeal. In summary, the appellant submitted that his Honour provided the jury with a discursive commentary on children, and the evidence of children, which exceeded the legitimate bounds of judicial comment and was liable to be understood by the jury as requiring them to view the complainant's evidence in a particular way, deflecting them from making their own assessment of her credibility and reliability.

1. The Crown also adduced evidence of other misconduct by the appellant, including two discrete occasions where he touched the complainant's genitals and breasts (one incident in 2006 before the sexual assault charged as Count 1 and a second occasion in 2008 after the sexual assault charged as Count 2); multiple occasions when he touched her on the breasts and the backside as she passed him in the hallway of the home and repeated instances when he would enter the bathroom whilst she was showering (on some occasions undressing and entering the shower cubicle with her) and then follow her into her bedroom whilst she was dressing. The Crown also adduced evidence from the complainant that the appellant commented upon her clothing, accessed her telephone to check on her contact with boys, was violent towards her and her brother and threatened to inflict violence on her and her mother. The trial judge's directions as to how the jury were permitted to use this evidence was the subject of the second ground of appeal.

1. The appellant gave evidence denying any sexual interest in the complainant. He also denied inflicting violence or threatening violence or indecently touching the complainant or having sexual intercourse with her. He gave evidence that his relationship with the complainant was stable until mid way through 2008 when heated exchanges erupted over the time she would take to shower in the mornings when he needed access to the bathroom before work, and her use of the bathroom in the afternoons when he wanted to shower after exercise. He gave evidence that he was so frustrated by her defiance that on occasions he used a knife to open the bathroom door and would demand that she finish showering, and that on occasions he would take off his clothes and go into the bathroom to force her out. He claimed that the complainant acted in defiance of his efforts to discipline her in other respects, in particular by limiting her use of the mobile phone. The first ground of appeal complains that the trial judge did not remind the jury of the appellant's evidence concerning these issues and that a summary of defence counsel's submissions was not sufficient to enable the jury to appreciate the defence case.

1. The appellant acknowledges that Rule 4 of the Criminal Appeal Rules applies to each of the grounds of appeal. As this Court has said on repeated occasions the Rules do not operate as a mere technicality which may simply be brushed aside at the hearing of the appeal. In Germakian v R [2007] NSWCCA 373; 70 NSWLR 467 at [11]-[12] the Court said:

[11] In R v Tripodina (1988) 35 A Crim R 183 at 191 this court held:

"...it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously."

[12] A failure by counsel to perform this duty may be explicable because:

(a) he overlooked the point or was unaware of the law on the subject;

(b) he deliberately said nothing hoping to gain a tactical advantage at a later stage; or

(c) he took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done - Tripodina (at 193 and 191).

1. In addition, an appellant for leave is obliged under Rule 4 to establish that the particular ground of appeal under consideration is arguable and that a miscarriage of justice has resulted from either the trial judge's misdirection or the failure to direct the jury in accordance with law, in the sense that a real chance fairly open of acquittal has been lost (see R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at [20]-[24]). In this case no explanation was proffered to explain counsel's failure to seek redirections, or in the case of Grounds 2 and 3(a), to invite the trial judge to withdraw some aspects of his summing up. The Court was informed it was the last case counsel appeared in but took the matter no further. The absence of any explanation usually counts against leave being granted under Rule 4 (see Wong v R [2009] NSWCCA 101 at [145]).

The evidence of complaint

1. Complaint was first made in November 2008 to a school friend and then to a teacher. The complainant agreed in cross-examination that she was selective at that time about what she revealed of the sexual assaults because she did not want the police to be involved. In particular, she agreed that she did disclose to the teacher that she had been "raped", by which she meant full penile/vaginal penetration. The complaint to the teacher was of being sexually assaulted "... about five times over the last two years [but] it hasn't happened in a while", and that while the assaults "sometimes happened on the lounge room, most of the time it happened in [her] bedroom".

1. She was first interviewed by police on 17 November 2008 after the allegations were reported to them in accordance with the teacher's disclosure obligations. The audiotape of that interview was accidentally wiped necessitating that she be re-interviewed some weeks later. The content of the first interview was given in evidence by the interviewing officer, inclusive of the complaint that the appellant had "raped her". The police officer also gave evidence that the complainant variously said she did not remember it; it was a long while ago; that it happened at her home but she did not know where; that it happened "a year and a bit ago" and it only happened once. She also told police that she had been "molested" and that the last incident had occurred in her parents' bedroom some months earlier. The police officer gave evidence that the complainant expressed fears about the impact of her disclosures on her mother and other members of her family, and that she said "I don't want mum and [the appellant] to know I told you. I don't want the family to break up". She also told police she had never been hit or chastised by the appellant.

1. In the course of a further police interview on 2 December 2008 the complainant was uncertain as to the dates upon which the incidents occurred or anything by which they might be referenced. On that occasion she said that the appellant touched her on the "boobs or the bum" as he walked past in the hallway and that he would come into the bathroom whilst she was showering. She again expressed uncertainty as to when the penetrative sexual assaults had occurred and where in the house they were perpetrated.

1. In a telephone conversation with investigating police on 15 December 2008 she provided details of the time frames within which various incidents occurred by which Counts 1 and 2 were then framed. On 16 December 2008 proceedings were commenced against the appellant by way of the service of a court attendance notice.

1. On 6 July 2009 and 26 October 2010 the complainant gave further statements in which further details of the assaults and other acts of misconduct were provided.

1. The investigating police officer agreed with defence counsel that the complainant's account emerged over a lengthy period of time.

The complainant's evidence of the offences on the indictment

Count 1

1. The complainant said on an occasion in February 2007 she was in her parents' bedroom watching a DVD on the television while lying on her mother's side of the double bed. Although she had informed police in December 2008 that the appellant had had sex with her "about a year and a half ago" in December 2008 (which would have dated the incident in the middle of 2007) by the time she gave her evidence she was able to appoint February as the month in which the assault occurred by reference to having played competitive sport in Wollongong where she stayed at a local hotel with her mother and sister. This was proved to be in February 2007 by other evidence.

1. She said that it was not unusual for her to watch a DVD in her parents' room while other family members watched cable television in the lounge room. She said the appellant came into the bedroom, got undressed and got into bed on his side. She said she was unable to recall what she was wearing but later in her evidence she said that she had been wearing long pants and underwear which she put back on when she got out of bed (the inference being that the appellant had removed them although she gave no evidence of that occurring). She said she was lying on her back when the appellant rolled on top of her put one arm underneath her, pushed her legs open and put his penis into her vagina. She said he moved it for about two minutes which caused her pain. She said his forearm was across her chest. She said she did not make any noise but tried to struggle free of his grip which she ultimately succeeded in doing enabling her to get out of the bed. She said she thought the bedroom door was closed. She went from her parents' bedroom to her bedroom. She said she did not see her mother and did not know where she was at that time.

1. She said in cross-examination that she did not complain to her mother about the assault because she was afraid her mother would not believe her or that her mother would confront the appellant and he would hurt them. When it was put to her that she informed police in her first statement that the appellant had never hit or chastised her she said that he had in fact threatened her and had thrown things at her but agreed she did not tell police about that.

Count 2

1. The complainant appointed the time of the second incident by reference to having transferred high schools halfway through 2007 and that the incident occurred in either the middle of third term or the commencement of the fourth term at the new school. She said that on this occasion the entire family were watching cable television in the lounge room and that she had fallen asleep. She said that when she woke up the television was still on, she was lying on her back, the appellant was sitting next to her on her right side touching her vagina, including with his hands "inside her vagina". She said she was probably wearing boxer shorts and a singlet. She said this continued for less than a minute after she had woken up. She said she told the appellant to stop and that she managed to struggle free after which she went to her bedroom.

1. She was asked whether there were other occasions when she was touched by the appellant in a similar way. She said there were but she was unable to recount them because they were so numerous.

The complainant's evidence of other acts of misconduct

1. The complainant gave evidence that her relationship with the appellant changed when she was about 13 or 14 when he began to touch her on the breasts and on the backside. She said this happened three to four times a week. She said while he was walking past her in the hallway he would "grope" her or "smack on the bum for no reason". In his opening address the Crown told the jury that this evidence was relied upon by the Crown to enable the jury to understand the charges on the indictment in the sense that they were committed "in the context of inappropriate touching".

1. The complainant also said that although she was unable to recall the first time that the appellant touched her on the breast she did recall a particular incident where (while touching her) he found what he believed was a cyst on her breast which he reported to her mother with the suggestion that she be taken to a doctor. A doctor's visit was subsequently arranged. The lump was benign.

1. The complainant said the first occasion that the appellant touched her vagina was just after her 14th birthday in October 2006. She said this occurred in her bedroom. She said her younger brother and sister were watching a television quiz show and had fallen asleep. She said she was on her bed as was the appellant. She said she was falling asleep and rolled over on her side to face the wall and as she was dozing off to sleep she felt the appellant touching her breasts and her vagina with his hands. She said he started by touching on the outside of her clothing and then he moved his hand inside her underwear. She said this lasted about five to ten minutes and it stopped when she pretended to wake up. She said that the next morning, the appellant apologised and that she queried what he was apologising for because she wanted to pretend that she was unaware that he had assaulted her.

1. By reference to a sketch plan drawn in the witness box she nominated the bathroom in which she customarily showered both before she went to school and before she went to bed. She said the bathroom had a pushbutton locking mechanism which could be opened from the outside by inserting a knife. She said the appellant either opened the bathroom door or unlocked it by means of a knife and then came into the bedroom every time she took a shower. Later in her evidence she said this happened on average three to four times a week. She said she would turn and face the wall inside the shower to cover her nakedness. She said when she asked the appellant why he had come into the bathroom he would "make up an excuse every time ... [such as] I need to get my toothbrush". She said on occasions he would get into the shower with her, effectively blocking her from getting out and causing her to move around the wall of the shower to get out after which she would grab a towel around herself and go to her bedroom. She said the appellant would invariably then follow her into her bedroom making up another excuse for being there. She said when she challenged him by asking what he wanted he would simply stand there and "ask a stupid question". She did not give any evidence of being assaulted either in the shower or in her bedroom on these occasions. In opening the Crown also told the jury that this conduct was "part of the background of what was happening in the household to put the charged acts into context".

1. The complainant also gave evidence of an occasion a few months before she first made complaint in November 2008 of going into her parents' bedroom to give the appellant a hug and to say goodnight when he took the opportunity of putting his hands down her boxer shorts and touching her on the outside of her vagina. She said she told him to stop it but that he continued after which she struggled free and ran out of the bedroom and into her bedroom.

1. Other evidence was led of the appellant making comments upon the complainant's clothing being too revealing, repeated enquiry as to where she was going and who she was going out with and constant attempts to regulate her use of her mobile telephone.

Cross-examination of the complainant

1. Defence counsel put to the complainant that she had originally lied to her friend about being sexually assaulted by the appellant to attract attention to herself without appreciating that she would inform her teacher, and that the authorities would necessarily become involved and that she then became committed to the lie and was unable to extricate herself from it. It was put to her that her developing account to police about the appellant's mistreatment (including the fact that the incident in the lounge room in October 2006 was not reported until October 2009) was because she had lied from the outset and that she was making up the story to improve on the initial lie, knowing that the case was to be prosecuted in a court. She rejected that suggestion. She said her memory had improved with the help of counsellors, her family and her boyfriend.

1. Counsel cross-examined her the following way:

Q: You relate a number of incidents about which you've given evidence in this court. With the exception of the first incident, none of them occurred in your bedroom. Is that right?

A: Some things happened in the bedroom, yes.

Q: It wouldn't be that by October of 2009 you felt the need to have something happening in your bedroom, because that's what you'd said to [your teacher] initially, would it?

A: I don't remember.

Q: It wouldn't be that's the reason why your memory improved so dramatically to be able to highly specifically describe something that happened in your bedroom, would it?

A: I remembered over time that first incident because now it is so clear in my mind but other incidents that happened in the bedroom because all this happened over such a long time and it happened so often I can't remember every single detail of every single time that he's come into my room and done things.

Q: In relation to the incident you've described as penile vaginal intercourse, as when [RGM] you say raped you, that too is something which emerged over time, your narrative about it emerged over time, got more comprehensive as time went on?

A: I remembered [it] over time.

1. Defence counsel cross-examined the complainant about her failure to report any incidents of sexual misconduct, in particular the conduct comprehended by the first count on the indictment which, according to the complainant, occurred in her parents' bedroom whilst her mother was close by in the house. It was also put to her that claiming that she was fearful of being hurt by the appellant were she to complain to her mother because the appellant had "threatened [her] thousand times and threw things at [her]....[and] that he had threatened her many many, many times", was also something that she had made up as her narrative developed and that it was inconsistent with what she told police when they spoke with her in 2008.

1. She agreed that one of the reasons for the friction developing between her and the appellant was her use of the shower in the main bathroom and her use of the mobile telephone. She agreed that the arguments about it were well known to her mother but disagreed that the appellant only ever entered the bathroom to hurry her along. She rejected the proposition that he did not get into the shower with her.

1. In so far as the mobile telephone was concerned, she gave the following evidence in cross-examination:

Q: Once again there was no secret about this, there were arguments between you and he about the topic of mobile phones?

A: Yes.

Q: Throughout 2008?

A: Yes.

Q: More particularly from about July 2008?

A: Pardon?

Q: More particularly from about June or July of 2008?

A: I don't know.

Q: The arguments got more constant?

A: I don't know.

Q: You see what he was doing was attempting to police your use of the mobile phone?

A: Okay.

Q: That's something you took exception to?

A: What's exception mean?

Q: You disagreed with it?

A: Yes well it's my phone, I bought it.

Q: Exactly, and you weren't going to take it?

A: Well he's not --

Q: [The appellant] attempting to police your use of the mobile phone, you weren't going to wear it?

A: No.

Q: You had argued with him about it just as you would argue with him about being in the shower?

A: He was arguing with me, he started it, yeah.

Q: You'd stand up and have toe to toe arguments with him about it?

A: What do normal teenagers do?

Q: You say --

A: We don't bow.

Evidence from the complainant's mother

1. The complainant's mother gave evidence that there were occasions when the appellant watched television in their bedroom with the appellant but without her. In so far as the incident concerning the suspected lumps on the complainant's breasts, she confirmed that there was an occasion when the complainant was about 12 years of age when the appellant lifted up her shirt and pointed out some lumps, or suspected lumps on her breast. Nothing was said at that time by either the appellant or the complainant about how the lump was detected and she did not inquire. She agreed that the complainant was taken to the doctor at the appellant's urging and that the lumps proved to be benign.

1. The Crown also led evidence from the complainant's mother that there were frequent and heated arguments between herself and the appellant and occasions when he would sleep elsewhere in the house - sometimes in the complainant's bedroom. She gave evidence of one occasion on Halloween in 2008 when, without her knowledge, the appellant had slept in the complainant's room. She said when she saw him emerging from the complainant's bedroom:

... he came out and looked - he had his head down and I said to him "what's wrong, what's happened" and he just looked down and didn't answer me.

1. The Crown also led evidence from her that the appellant would lose his temper with the children. She gave evidence of a particular incident when the appellant used a skipping rope to hit his son on the leg. She claimed that this was an unprovoked act of violence on the part of the appellant and that on another occasion the appellant had hurt his hand chastising his son. She also gave evidence that the appellant threatened to kill her and the complainant if there was a custody dispute involving the younger children.

1. In so far as the shower incidents were concerned the complainant's mother confirmed in cross-examination that the complainant showered twice a day and that it was frequently the case that she would leave for school at the time the appellant would leave for work. She also confirmed that there were occasions when the complainant was in the shower when the appellant would unlock the bathroom door with a knife and walk in, and that on occasions he would take his clothes off outside the bathroom door and enter the bathroom naked. She said this happened several times, which prompted her to tell her daughter to get out of the shower to allow the appellant to use it. She agreed in cross-examination that she attributed this to the appellant's impatience in wanting to use the bathroom. She agreed that on occasions the appellant would get the complainant's brother to slip open the locked door to get her out of the shower. She said that this occurred quite openly and that her daughter would then get out of the shower. She agreed that there were occasions when the appellant went into the complainant's bedroom after she left the bathroom. She said she did not know why and her daughter did not complain to her that anything untoward had occurred.

1. The Crown also led evidence from the complainant's mother that while she did not have any concern about her daughter's use of her mobile phone the appellant did not approve of her receiving text messages from boys and that there were continual arguments between her daughter and the appellant about the mobile phone. She said the appellant discussed this with her and he imposed a rule (that was not strictly enforced) that the mobile phone remain in the kitchen overnight. She also said that the appellant would make repeated and continual complaints about the clothes the complainant was wearing and that she was seen talking to boys.

The appellant's evidence

1. The appellant denied sexually assaulting the complainant or misconducting himself sexually toward her in any way. He said that there was an occasion when the complainant said that she had a sore breast which she pointed out to him and that he felt a lump on the outside of her school uniform. He said he raised it with the complainant's mother but did not lift up her shirt.

1. He said his relationship with the complainant was stable until midway through 2008 when, as he described it, "we started to have the heated battles" in particular over the shower and the mobile phone. He gave evidence that he was concerned about her behaviour and that he took her mobile phone to seek advice from a doctor about the content of her text messaging. He said that these arguments erupted every couple of days or so. He also accepted that the complainant resisted the steps he took to monitor her use of her mobile telephone in response to text messages which he considered inappropriate and that whilst he raised the matter with his wife she did not intervene.

1. He agreed that he used a knife to unlock the door to the shower, as did his son following his example. He said he only went into the bathroom after unlocking the door on two or three occasions to move the complainant along and on each occasion he waited until she left the bathroom before he entered.

1. The Crown also put to the appellant that he regarded the complainant's behaviour as deliberately defying his need to use the shower and it made him so angry that he was prepared to get into the shower with her to force her out. He denied that this was the case. The Crown cross-examined the appellant the following way:

Q: And it made you angry. You had to yell for 20 or 30 minutes. She wasn't coming out. It made you angry?

A: Yeah.

Q: To the extent where you'd get a knife or some implement, slip the lock and go into the shower, into the bathroom I should say?

A: That was on two or three occasions.

Q: Only two or three occasions?

A: Correct.

Q: And she would be naked, still in the shower?

A: I gather so, yeah.

Q: Well you went in --

A: It was fogged up.

Q: Surely you saw what she was doing?

A: Well I raised the girl since she was three. I didn't raise her since she was 16.

Q: I understand that sir but the question simply is was she naked in the shower when you went in?

A: I'd say she would've been, yeah.

Q: Well why do you say "I say she would have been". You're in the bathroom with her. You would see her, surely. Did you see her when you went into the bathroom?

A: I would've seen her yeah but.

HIS HONOUR

Q: And if she was in the shower she wouldn't have had any clothes on one assumes?

A: Yeah.

Q: And she was no longer three?

A: Yes.

TRIAL ADVOCATE

Q: She was 16?

A: Yes.

Q: She was fully developed by then wasn't she in a physical sense?

A. Yes.

Q: Why didn't you pick up your shaving gear then and simply go to the other bathroom to shave?

A: At the time it was, that was the, there was just set rules. The other one was the tiny little bath tub, tiny little shower and that was just set out to be mine and [my wife's] bathroom, the big bathroom.

Q: You weren't very flexible in how you approached that particular issue were you?

A: Well I think she wasn't.

1. The cross-examination continued for some pages before the following questions were put:

Q: When did [the complainant] reach puberty?

A: I could not tell you.

Q: In 2008 she had fully developed breasts?

A: I'd say so, I don't know what the developed nature ... (not transcribable)

Q: All right, from the age of her turning, say 14, did you ever walk into her bedroom and discover her naked?

A: Not that I recall.

Q: Would you agree with the proposition that most fathers would be cautious about going into their daughter's bedroom if she were undressed and they knew that. Would you agree with that?

A: Yes.

Q: Would you agree with the proposition that most fathers would not be prepared to get into a shower with their daughter if she was 14 or 15 or 16 years of age?

A: (No verbal reply)

Q: Would you agree with that?

A: Yes.

Q: It would not be appropriate behaviour would you agree?

A: I think not.

Q: Whether or not there was any sexual interest it would be beyond the normal boundaries. Would you agree with that?

A: Yes.

Q: I put it to you that you did get into the shower with [the complainant] when she was 14, 15 or 16 years of age and when she was naked. Do you deny that?

A: Did not happen.

Q: I put it to you that you are saying it did not happen because you understand it was improper. Do you agree with that?

A: No.

1. The appellant denied ever sleeping in the complainant's bedroom or indeed sleeping in any other room of the house irrespective of the arguments with his wife. When asked to comment upon his wife's evidence concerning his behaviour upon leaving the complainant's bedroom around Halloween 2008 he said that was more than likely because he was carrying one of the younger children into their bedroom. He agreed that he criticised the complainant for wearing clothing which he regarded as too revealing.

1. The appellant denied making any threats of violence, whether towards the complainant or her mother. In particular, he denied threatening to harm his wife or kill her if she prevented him from seeing the children in the event that there was a marital separation. He agreed that he hit his son with a skipping rope but said this was to punish him for swearing at his mother. He denied there was any occasion when he hurt his hand chastising his son.

1. The Crown cross-examined the appellant at length about the incident involving the lumps on the complainant's chest. He also cross-examined him, again at some length, about hitting his son with the skipping rope, returning to the issue more than once apparently to seek to expose the appellant as a person with an uncontrolled temper. The appellant insisted it was to punish his son and that it was justified.

Ground 3(a): The trial judge erred in the directions concerning the use that could be made of the relationship or context evidence

1. I propose to deal with this ground of appeal first since I am satisfied that the potential for this evidence to have been misused by the jury, and the failure of the trial judge to protect against it, necessitates that the appeal be upheld and a new trial ordered.

1. As is obvious from the summary of the complainant's evidence and the evidence of her mother, in addition to the specific evidence in proof of the offences the subject of indictment, a great deal of evidence reflecting adversely on the appellant was adduced by the Crown, none of which was the subject of objection. This evidence might be grouped loosely into three categories; other acts of overt sexual misconduct involving the complainant; other generalised misconduct also involving the complainant; and unacceptable behaviour in the appellant's dealings with the complainant, the complainant's mother and his own son.

The use to which the Crown prosecutor put the context evidence

1. Evidence in the first category (that is, other sexual misconduct) was relied upon by the Crown in his closing address for three express purposes. The first so that the jury could "understand that [the complainant's] evidence fully" (from which I understand him to mean that the evidence was relied upon to explain the context in which the subject offences occurred in some relevant respect as required by Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 and DJV v R [2008] NSWCCA 272; 200 A Crim R 206 despite his failure to articulate the relevance of the evidence with any clarity); secondly as evidence they might take into account as an explanation for why the complainant was confused about the dates and times the subject offences were committed thereby explaining the need for her to give a revised series of statements to police from November 2008 to October 2009; and thirdly to explain the delay in complaint.

1. The second and third categories (evidence not amounting to sexual misconduct in the physical sense) included the appellant invading the complainant's privacy while showering and dressing; criticising her style of dress; restricting her access to her mobile phone and his generalised bad character as evidenced by what the Crown submitted was his loss of temper and by his threats of violence and excessive physical violence when disciplining his son. Although the incident involving the suspected lumps on the complainant's breasts, and the shower incidents and walking into the complainant's bedroom whilst she was changing carried with them an unmistakable sexual connotation, in his closing address the Crown expressly limited his reliance upon this evidence to show a pattern of behaviour on the appellant's part which extended beyond the legitimate boundaries of parental control and the appellant's inability to control his temper when confronted with issues that frustrated him. This in turn was said by the Crown to expose what he described as the "true situation" in the household and, in that way, to account for her delay in complaint because of what he submitted was the complainant's perception of the appellant's capacity to hurt her in circumstances where her mother was not sufficiently protective or supportive.

1. Just as defence counsel did not object to any of this evidence despite the very considerable prejudice capable of being generated by it, neither did he raise any objection to the focus that was given to the evidence in the way the Crown led its case, in the way the appellant was cross-examined and the way it was left to the jury. In my view, legitimate objection could have been taken (and should have been taken) to much of this evidence as being simply irrelevant to any issue in the trial. For example, I am simply unable to see any basis for the admission of evidence of the appellant hitting his son with a skipping rope on an isolated occasion (and even less for it to become the subject of such focus in cross-examination over many pages of the transcript and then attracting a lengthy submission from the Crown in closing address), irrespective of whether the appellant hit the child as a result of a momentary loss of temper or to punish him for swearing or a combination of both.

1. The evidence that the appellant verbally threatened to kill his wife if she sought custody of the children on one occasion in the course of what it appears were many heated marital arguments is also of doubtful relevance as context evidence particularly since there was no allegation that any of the acts of sexual misconduct involving the complainant were accompanied by violence, or threats of violence, and that the complainant acquiesced in the sexual assaults for that reason. In KTR v R [2010] NSWCCA 271 at [99] McClellan CJ at CL said:

To my mind, evidence of violence perpetrated by the appellant against the complainants was relevant because it provided a realistic context in which to understand the complainants' evidence. Evidence that a complainant did not resist the appellant or report the assaults to her mother because she believed it to be pointless to resist or was scared or terrified of the appellant's possible response demands an understanding of the context of the prior relationship between the complainant and the appellant. If the relationship is one where the appellant has been violent to the complainant or, to the knowledge of the complainant by his dealings with others, has demonstrated a preparedness to use violence or put others in fear, that event, which places the alleged offences in a realistic context, must be admissible when given by a complainant. However, it may be otherwise if given by a third party.

1. Even were some of the evidence admissible as context evidence, some or all of it might nevertheless have been excluded under s 137 of the Evidence Act 1995, were application made to the trial judge.

1. Whether or not defence counsel deliberately refrained from objecting to the evidence in order to ground the submission that the complainant was a disgruntled teenager who had manufactured a case of sexual abuse against her stepfather in retaliation at his attempts to discipline or control her, when evidence of other acts of sexual misconduct by an accused is led by the Crown on the untested assumption that the conduct is relevant to an issue in the trial, there is a very real potential for the evidence to be misused by a jury as evidence tending to proof of the offences charged. That risk increases where there is insufficient guidance from the trial judge as to its legitimate use or, as has occurred in this case, where the trial judge suggested, or appeared to suggest, that aspects of the context evidence was probative of the appellant's salacious interest in the complainant, and available to support the Crown case that he was guilty of the offences charged on the indictment.

1. Irrespective of what might have been the forensic approach of trial counsel, in order to ensure that the evidence was not misused by the jury the Crown should have been invited by the trial judge to identify the issue to which each aspect of the three categories of so-called context evidence was said to be relevant, and before the evidence was to be led, in order that he might direct the jury at the time of the admission of the evidence as to the limited use to which the jury might put the evidence. This is the approach that McClellan CJ at CL in Qualtieri at [80] regarded as essential to minimise the risk of prejudice. The fact that the Crown prosecutor opened his case to the jury and identified the limited use to which some of the evidence was to be put did not absolve the trial judge of the need to carefully direct the jury of the confined use of the evidence at the time the evidence was led. Because that did not happen in this case, there was a very real risk, perhaps elevated in this case to a near certainty, that some of the evidence, in particular the shower incidents, and the considerable focus it attracted had by the end of the trial, created an air of prejudice which judicial direction could not cure.

The trial judge's directions on context evidence

1. In order to appreciate the way the trial miscarried it is necessary to set out the relevant passages of the summing up concerning the context evidence in full:

... Now in addition to the evidence that the Crown led directly to support the allegation pertaining to each of the two counts the Crown has led evidence of other acts of alleged misconduct by the accused of a sexual nature towards the complainant. For the sake of convenience I will simply refer to that evidence as being other acts. Just as a phrase. Those other acts include perving on her when she was naked in the bathroom, and her bedroom and touching her on various parts of her body; breasts, bottom, vagina.

(Neither counsel had used this expression in dealing with the shower and bedroom incidents. Although the Crown prosecutor was at pains in his address to the jury to make it plain that the incidents were not to be used to show any sexual inclination, the cross-examination at [51] suggests otherwise.)

1. While the use of the term "perving" in the above extract might have been an idiomatic slip of the tongue, given the way the trial judge questioned the appellant about his insistence on using the shower in the passage extracted at [50] above, and his summary of the Crown submissions concerning this evidence in the following extracts (again contrary to the way in which the Crown sought to use the evidence), the jury would have been left in no doubt that in the judge's view the evidence was supportive of the appellant's guilt and that they could use it that way if they were satisfied that the appellant's behaviour towards the complainant was unacceptable or inappropriate.

1. His Honour went on to say:

It is important that I explain to you the relevance of that evidence of other acts. It is admitted solely for the purpose of placing the complainant's evidence regarding the two acts relied on for counts 1 and 2 into what the Crown says is a realistic context, now you have heard some submissions in relation to this from the Crown. The reality is that without that material, you may wonder about the likelihood of two apparently isolated events, namely count 1 and count 2, occurring suddenly and without apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct you would be entitled to think it very odd for there to have been two such isolated acts if a person was touching her that way would it only happen twice and some time apart. So if you had not heard evidence of the other acts, you may have thought the complainant's evidence was less credible.

...

Now if however, the particular acts relied on for counts 1 and 2 are placed into the wider context, that is into the context of an ongoing history then that curious feature of two isolated acts would disappear. It is for that reason that the law permits a wider sexual history to be provided, it is to avoid artificiality or unreality in the presentation of evidence. For one or 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. Therefore it is open to the Crown to lead evidence of other acts of a sexual nature between the accused and the complainant as I have identified.

However, I must give you some important warnings in relation to this evidence of other acts. You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of this type. You must not substitute the evidence of other acts for the evidence of the specific offences on the indictment. So you cannot say well he put his finger in her vagina on some other occasion but I do not think he actually did it in count 2, but because I find he did it on another occasion and notwithstanding I do not think he did it in this one, I am going to find him guilty any way. If he is to be found guilty of count 2 it has to be that you are satisfied beyond reasonable doubt that what is alleged on count 2 is what took place, not in relation to some other incident. So no substitution. You must not reason that because the accused may have done something wrong to the complainant on another occasion he must have done so on the occasions alleged in the indictment.

1. It was common ground on the appeal that this direction was in accordance with the Bench Book. However, when his Honour dealt with the issue of the complainant's credibility and the reliability of her account, that direction was undermined:

The Crown says, while there is no support for the complainant in terms of what actually happened in relation to count 1 and count 2 in the sense that nobody saw it, there is support for other material that you might have expected that there should be support for. For instance, there is support for her version about him coming into the shower, support that he indeed unlocked the door and came into the shower, support that he was getting into the shower with her, support that he would come into her bedroom and support for her when she made reference to the issue with the lump and how he just lifted up her shirt to expose her breasts and support for her in terms of the skipping rope incident. So the Crown says you look to the evidence of the mother and it supports her in those areas where you would expect that she would be supported and while it does not support her in relation to count 1 and count 2, all of that material provides a background against which you can see what is happening within that home. It is perhaps the case of a man using excuses such as, "I need to have a shower", "I've got to go to work" or "I'm in a hurry", or "you're taking too long". Using that type of excuse to get into the bathroom to see this young lady in a naked condition. That he used other things such as impatience to cover up the underlying sexual issues that he was having in relation to this young girl.

1. His Honour went on to say:

The issue with the controlling of her behaviour. Well he seems to be at odds with the mother in the sense that the mother was not too fussed by whatever was occurring with the mobile phone, her daughter or even the manner of dress. The Crown says, when you look at what his attitude in going into the bathroom, that to go into the bathroom even for impatience when it is a sixteen or fifteen or fourteen year old girl who is naked in there, who has locked the door obviously wanting to keep people out, that there has to be some awareness that it is an inappropriate thing to be doing. And the Crown says when you look at what he says about that, and his controlling behaviour, how it is one thing for him to lift up her shirt and expose her breasts but apparently then he is critical of her wearing a top that is too revealing when she goes out. He is concerned about her contact with boys. Well you know that is probably the concern of most fathers or stepfathers through teen years. But then there is concern and there is concern. Look at the length to which he will go to take the mobile phone from her and then to take that mobile phone to a doctor, talk to a doctor about it. The Crown says you would look at all of that; you would look at the way in which he gave his evidence and the Crown says you would not accept what he says about it, you would not accept his denials, you would accept the complainant because the Crown says she is a witness of truth and where it is possible for her to be supported by her mother.

1. The appellant submitted that despite the Crown expressly limiting its reliance upon the acts of sexual misconduct which were not the subject of either count on the indictment, and limiting the use to which it put other aspects of the appellant's inappropriate behaviour, not only did the trial judge wrongly attribute to the Crown a submission that the appellant's behaviour in entering the bathroom was inappropriate because she was naked, he also wrongly attributed to the Crown a submission that where the complainant's evidence was corroborated by her mother, it could be used to support the complainant's credibility generally. The appellant submitted that for the trial judge to leave this evidence to the jury as capable of supporting the complainant's reliability and truthfulness was in breach of the credibility rule in s 102 of the Evidence Act.

1. The appellant further submitted that even if the credibility rule was not breached, the judge's error in attributing to the Crown reliance on the evidence for an implicit tendency purpose was compounded when, of his own volition, he suggested the shower incident revealed a sexualised or obsessive attitude toward her thereby effectively suggesting a tendency on the part of the appellant to commit the offences with which he was charged.

Was it permissible for the trial judge to invite the jury to use the evidence to bolster the complainant's credibility?

1. The credibility rule in s 102 of the Evidence Act operates to exclude evidence that is relevant solely to a witness' (or a person's) credibility. Evidence is not irrelevant only because it relates to the credibility of a witness (s 51(2)). Evidence that is relevant for another purpose is not excluded although it may be subject to exclusion by reason of its lack of probative value and unfair prejudice pursuant to s 137 of the Evidence Act.

1. In Peacock v R [2008] NSWCCA 264; 190 A Crim R 454 Simpson J, in discussing the operation of the credibility rule emphasised the distinction that needs to be drawn between evidence going to the credibility of a witness and evidence going to the credibility of the evidence given by that witness or, as her Honour more accurately described it, evidence going to the reliability of the evidence given by a witness.

1. At [57] her Honour said:

...Section 102 prohibits evidence going only to the former: it does not prohibit evidence going only to the latter of which an obvious example is evidence contradicting facts asserted by a witness. The reliability of evidence given by a witness might be challenged by evidence contradicting all, or part, of that witness's evidence. That contradictory evidence is not rendered inadmissible by s 102.

1. In the present case, of course, the evidence from the complainant's mother when she detailed the shower incidents, the skipping rope incident and the occasion when lumps were detected on her breasts (the evidence the appellant submitted was left to the jury in breach of the credibility rule), was not evidence contradicting the facts asserted by the complainant, evidence which would, on any view, have been properly admitted to undermine the reliability of her evidence concerning these incidents, it was evidence having the contrary effect, namely evidence generally consistent with the complainant's evidence about those incidents thereby supporting the reliability of her evidence. It was precisely in that way that the trial judge suggested that the evidence given by the complainant of those incidents was supported where, by way of contrast, there was no support for her evidence of being sexually assaulted. I am not persuaded that this direction breached the credibility rule.

1. I am also not persuaded that the jury's use of the context evidence to support the complainant's credibility as a witness was impermissible. In Qualtieri at [119] Howie J recognised the legitimate use to which context evidence might be put in bolstering the credibility of a complainant (views with which Latham J expressly agreed):

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

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

1. However, by attributing to the Crown the submission that the jury would find that the complainant's version of how she was mistreated by the appellant more likely to be true, referable to what the trial judge suggested was the appellant's underlying sexual interest in the complainant (which the jury might find he attempted to "cover up" with a series of excuses and by the unnecessary lengths that he went to control her) he has invited the jury to use that evidence for an impermissible tendency purpose. In addition, when he commented in the extract at [68] above, "But there is concern and there is concern" he could only be taken to be inviting the jury to question the appellant's stated concern being that of a supervising parent as distinct from a parent with a prurient sexual interest in his stepdaughter. In that way, and despite his Honour's directions that the evidence provided a background for what was happening in the home, and despite the directions as to the limited use of the context evidence he had given earlier in the summing up and which displayed no error, at the conclusion of the summing up the jury were being effectively invited to use the context evidence to show a propensity or characteristic of the accused, a use to which it can never be legitimately put.

1. It is perhaps unsurprising that error of this kind infected the summing up given the failure on the part of both counsel and the trial judge to adopt the disciplined approach to the Crown's intention to lead context evidence that this Court, in Qualtieri and cases since then, has repeatedly stipulated is the proper approach being designed to ensure that context evidence is used for the legitimate purpose of enabling the jury to appreciate that the charged offences were not committed in a vacuum, or otherwise as relevant to proof of a fact in issue, and not for an illegitimate tendency purpose.

1. Given the very real potential for this evidence, and the way it was dealt with in the context of the trial generally, to have been productive of a miscarriage of justice, I am satisfied that although trial counsel failed to seek redirections, leave should be granted under Rule 4 to permit the ground to be argued and the appeal allowed.

Ground 3(b): The trial judge erred in failing to give a direction concerning the limited use of the evidence of the complainant's mother concerning the appellant's demeanour on the occasion he was seen by her to leave the complainant's bedroom

1. This ground of appeal concerns evidence led from the complainant's mother of an occasion on Halloween in 2008 when, without her knowledge, the appellant had slept in the complainant's room and when, as she described it, he came out of her room one morning with:

... his head down and I said to him "what's wrong, what's happened" and he just looked down and didn't answer me.

1. No objection was taken to the evidence on the grounds of relevance or, if relevant, because its probative value was outweighed by unfair prejudice. This is difficult to understand since neither of the offences charged on the indictment concerned conduct on or around Halloween in 2008, and the complainant did not give evidence that the appellant had slept overnight in her room at or about that time, much less that he had slept overnight and sexually assaulted her. Whilst she said in cross-examination that many other assaultive incidents she claimed to be victim to had happened in her bedroom, and that she was unable to remember the detail of any of those occasions, she did not give evidence that any occurred within a month of her making complaint in November 2008. Her evidence concerning the appellant's conduct in or around October 2008 was limited to the occasion when the appellant opportunistically assaulted her when she was in her parents' bedroom to say goodnight. In addition, when she gave evidence that the appellant entered the bathroom three or four times a week it was not clear whether she was alleging that he followed her into her bedroom with that degree of frequency. In any event, the evidence from the complainant's mother was clearly referable to an occasion when she understood the appellant to be leaving the complainant's bedroom after he had slept in the bedroom overnight, not leaving the bedroom after having followed her there after she had taken her morning shower.

1. Neither counsel referred to this aspect of the evidence in their closing addresses and the trial judge did not refer to it in his summing up. It only came into focus when the jury sent a note after retiring to consider their verdicts. In somewhat oblique terms, the note read:

Transcript on entry to [the complainant's] room. Ever.

1. In discussion with counsel, the note was interpreted to mean that the jury were seeking guidance as to the source of evidence generally on the topic of the occasions when the appellant entered the complainant's bedroom. Thereafter, the various references in the evidence to that general topic were extracted and the jury reminded of them, including the evidence from the complainant's mother about the "Halloween incident". The trial judge also reminded the jury of the appellant's evidence denying that he had ever entered complainant's bedroom when she was naked, and his explanation that the "Halloween incident" (which he could not recall) was likely to be an occasion when he may have been carrying his other daughter from the complainant's bedroom.

1. No directions were sought at that time, or at any earlier time, as to the limited use the jury could put this evidence. The trial judge did not refer to it as part of the context evidence in the summing up although that was the only conceivable basis upon which it might have been admitted. The appellant now complains that the trial judge should have told the jury that they could not use the evidence as evidencing a consciousness of guilt on the part of the appellant, or be used by them to reason to proof of guilt, and that the failure to do so constitutes a miscarriage of justice.

1. Were the trial judge's directions concerning context evidence otherwise free of error, the failure to give any specific direction about this aspect of the evidence, particularly where there was no challenge to its admission or application for redirection, would not, in my view, have attracted a grant of leave under Rule 4 to permit the ground of appeal to be argued.

Ground 1: The trial judge failed to properly put the defence case

1. It was submitted that the trial judge's summary of the defence case by reference only to counsel's arguments and not the appellant's evidence in circumstances where it is said that the Crown case and the complainant's evidence were referred to at some length, resulted in a summing up that lacked balance, thereby depriving the appellant of a fair trial.

1. The obligation of a trial judge is to ensure that the respective cases of the prosecution and the accused are fairly and accurately put, consistent with the ultimate objective of ensuring that the jury has a sufficient appreciation of the evidence, and the arguments for or against acceptance of the evidence, to enable them to discharge their duty of returning a verdict in accordance with the evidence.

1. In some trials, in particular those that involve a single count or where only one of a number of elements of a particular charge is in dispute, a summary of the arguments of counsel is often sufficient to ensure the jury understand the defence case in answer to the case brought by the Crown. Section 161 of the Criminal Procedure Act 1986 expressly provides that the extent to which the trial judge needs to summarise the evidence depends upon an assessment of the circumstances of the particular trial. While in an appropriate case the section relieves the trial judge of summarising the evidence it does not relieve the judge of the obligation to put the accused's case to the jury (see Wong at [141]).

1. The assessment as to whether, and to what extent, the evidence needs to be summarised depends not only upon the particular charge or charges on the indictment, but also on the length of the trial and the matters that remain in dispute when the cases for the prosecution and accused have closed. Where it is the intention of the trial judge to summarise only select aspects of the evidence, it is prudent to seek counsel's views as to whether any other aspects of the evidence should also be referred to or extracted. Where counsel considers that the evidence generally or in a particular respect has been underemphasised, or that the summing up otherwise lacks balance by an overemphasis of some evidence or argument about it at the expense of other evidence, there is an obligation to seek further directions at that time. The failure to do so signifies to an appeal Court (or might signify in the absence of explanation) that in counsel's assessment, in the immediacy of the atmosphere of the trial, the summing up was sufficient to bring to the jury's attention the evidence in the accused's case (or evidence in the Crown case favouring the accused's case) and the arguments put by counsel about it.

1. When there is a complaint on appeal that a trial judge either failed to properly put the defence case or that the summing up lacked balance resulting in an unfair trial, the attention given to the Crown and defence cases by reference to a crude page count in the summing up is neither helpful nor definitive. To the extent that this ground of appeal depends upon the appellant's submission that the defence case occupied "over two and a half pages in a 25 page summing up", it is not made out. It is not infrequently the case that additional time is taken in a summing up to deal with the evidence in the Crown case, if for no other reason than to discharge the trial judge's duty to identify the elements of the offence or offences and the available evidence to prove them. Less frequently will there be the need to spend unequal time on the arguments of counsel, although that will also depend upon the nature of the trial and the issues that are left for the jury to resolve in considering their verdict.

1. It was essential that the trial judge in this case identify the constituent elements of the offences and the complainant's evidence going to proof of those elements, including the issue of consent. He did this economically without referring to the complainant's evidence in any great detail and without quoting her evidence at all. At repeated points in that exercise he reminded the jury of the accused's evidence denying the assaults. He also emphasised the Crown's obligation to prove its case and that it was not for the accused to prove he did not assault the complainant or for the jury to choose between the competing versions.

1. Despite there being no evidence supporting the complainant's version, and in this sense it was a case of word on word, I am not persuaded that it was necessary for the trial judge to quote the accused's denials as counsel on the appeal contended. The jury could have been in no doubt that he denied the allegations of sexual assault and other sexual misconduct. While it would have been open and perhaps preferable to remind the jury of the cross-examination of the complainant where she was tested about the delay in complaint, her various and inconsistent accounts to police, and the fact that they each occurred in a family home, the trial judge's summary of counsel's submissions about these issues was sufficient to remind the jury of the appellant's case.

1. Where the summing up lacked adequate balance was in the treatment his Honour gave to the appellant's evidence in answer to aspects of the context evidence. Although the trial judge summarised counsel's arguments directed to challenging the credibility of the complainant's evidence about the other allegations of misconduct by reference to her feisty demeanour and her attitude to being disciplined by the appellant, he dealt with the appellant's evidence concerning these incidents in a most cursory way.

1. Because I am satisfied that the appeal should be upheld because of the trial judge's directions when dealing with the context evidence, it is not strictly necessary to decide whether leave under Rule 4 would have been granted and the appeal allowed on this ground alone.

Ground 2: The trial judge erred in his directions to the jury concerning the way in which the evidence of juveniles should be assessed

1. In that part of the summing up where his Honour alerted the jury in conventional terms to the need to consider the reliability of witnesses, including their truthfulness, accuracy and demeanour, he dealt at length with the evidence of children:

All witnesses have markedly different levels - especially children - of intellectual sophistication and that can impact upon their ability to give evidence and handle cross-examination. Young people often have different thought processes. They have a different sense of logic. What they think might be a very logical thing to do but may not be what you as an adult think of as a very logical thing to do.

I have heard children give evidence and say things and you are thinking - your adult mind is thinking, "Well that doesn't make any sense", and then you get an answer and you think, "Aah, that's why they said that, that's how they were thinking that through. It's a process different to the one I'm applying". I mean you know it yourselves when someone says something and you think, "Hang on a sec, I never thought of it like that", it's just another example of that, that not every mind works in the same way or follows the same process of logic and thought and especially with children, and then again it very much might depend upon their level of maturity.

I mean some girls, for instance, at fifteen might be as physically mature as they are ever going to be, but they might be fifteen going on thirty-five one minute and fifteen going on about ten the next. Boys would be even worse. They are very rarely fifteen going on thirty, they are usually fifteen, if they are lucky, going on fifteen, or fifteen going on about three. It does not change much until they get to about twenty-five, I think, but it just emphasises the fact that, as between children there is a huge range of abilities and even with the same child.

From one moment it can be a mature moment to a completely immature moment a little bit later. So level of maturity, level of understanding, they have a lower ability to focus and concentrate. They are often more easily distracted. They have different levels of knowledge, for instance, different levels of understanding, for instance, of sexual matters, especially. They can be very naïve to very worldly wise. They have significantly greater language issues.

I mean it is bad enough when the lawyers tend to use words within a courtroom that we understand or everyone who is regularly here understands because you hear them all the time, but it is probably like going to a government meeting, unless you know what the A, B, C and the J, Y, K and the L, M, B and half the time you cannot understand the language because they give these acronyms to every single thing. You go to some other work site and they will use terminology generic to that work site. If you are not familiar with it you will not understand it, and a court room is the same. Even though we attempt, I think, on most occasions to try and get rid of that jargon, it still occurs.

So young people have a bigger problem in that their vocabulary has not yet developed, it is not as large as it will be when they are adults, so they are unfamiliar with words that perhaps are not even peculiar to a court, but more used perhaps among the adult population than the juvenile population. I mean sometimes there is just a complete breakdown. If I talk about someone being sick it means something completely different to what a fifteen year old boy from Bankstown thinks "sick" means. For that kid you can even be "fully sick".

So language can produce difficulties and you need to bear it in mind, difficulties in terms of understanding, difficulties in terms of being able to express themselves and often they are a little too embarrassed to put their hand up and say, "No, I didn't quite understand that". So, again, that is the background against which you make the assessment. Puberty can be a very big thing.

Puberty can often lead to emotions and tensions, for instance, especially within families. Most witnesses and especially children have trouble handling the ambiguous or double barrelled question or as we heard one, the double negative. I think that was an adult witness who had trouble with that double negative, "not infrequently", I think it was, from memory, and lawyers do tend to use those double negatives, not infrequently. So you need again to be careful, take that into account.

The evidence of a young person should be assessed against the background that if the allegations are true, which is ultimately the question for you, but if they are true then it is necessary for that child or young person to effectively relive what they say occurred to them. That may well mean opening up old wounds, and you have to have it in the context that if these things did happen there may be degrees of wanting to forget it and put it behind you and move on. Obviously if it is lies, you do not have such a problem. If you are telling lies you are not being quite so personal about what you are discussing. So while ultimately it is for you at the end of the day to determine whether the allegations are true, you need to bear in mind that if in fact they are that may well have an impact on the way the evidence is given because it could involve, as I say, the opening of old wounds or of memories that have been avoided, I guess, not wanting to think about that sort of thing. So emotions or the demonstration of emotions are an important factor for you to look at, but again not everybody reacts emotionally the same way.

Here I think the reality is that [the complainant] was quite controlled. She was generally in control of her emotions when she gave her evidence, and you might recall when I read to you the statement of [the school teacher] that in that statement the school teacher ... says that, "She's always known [the complainant] to be a child that didn't really show a lot of emotion". So again that goes into the mix.

1. The complaint is not that his Honour's remarks breached the prohibition in s 165A of the Evidence Act although parts of the extract above are, in my view, capable of such a reading. That section operates to prohibit a trial judge from warning a jury that children as a class, or by reason of their immaturity, are unreliable witnesses, or that their evidence is less credible or reliable or that it requires more careful scrutiny than the evidence of adults. The complaint is that the trial judge's commentary had the potential to deflect the jury from their task of assessing the complainant's credibility.

1. In my view that complaint is well founded. Despite defence counsel's failure to ask his Honour to make clear to the jury that his views about child witnesses were by way of comment only and that they were not obliged to assess the complainant's evidence by reference to them, the extent of his Honour's commentary and its content, coupled with the real risk that the jury might have been inclined to a view adverse to the accused because of it, satisfies me that leave should be granted to permit this ground of appeal to be argued.

1. A trial judge has a wide discretion to offer guidance to a jury as to how to approach the evidence of a child witness which should be tailored to meet the particular circumstances of the case and the issues that the jury are likely to encounter in their deliberations. Save only where a trial judge is satisfied that the evidence of a particular child may be unreliable in a particular respect, and that there is a need for the jury to exercise caution in assessing the evidence thereby invoking the exception in s 165A(2) of the Evidence Act, it is important that a trial judge refrain from suggesting an approach to the assessment of a child's evidence in such a way that it has the appearance of a direction of law.

1. In NJB v R [2010] NTCCA 05 a conviction was overturned where the trial judge had said the following:

First, I am going to talk to you, in a general sense, about the weight which may be given to the evidence of children. Courts now recognise the following factors in relation to the evidence of children:

1. While children generally do not experience full cognitive development until about the age of 14 years, children, even children of tender years, can give reliable evidence if questions are tailored to their cognitive development.

2. From about the age of six onwards children do not have a less accurate memory than adults. However, recall is more likely to decline with time for children than for adults and children are likely to recount, when describing past events, in much less detail than adults.

3. Children do have the ability to distinguish fact and fantasy and the danger of children fabricating allegations without the encouragement of older persons is no different to that of adults. However, children are suggestible and on occasion like everyone else they do tell lies.

4. With younger children recall is less likely to be organised because of the level of their cognitive development and because of underdevelopment of concepts such as time, space and distance. The spontaneous collating and organisation of recall is a learned skill which improves as language skills, vocabulary and cognitive development improve.

5. Children may experience difficulty in supplying information at a particular time, or in a particular place, or in an unusual or formal situation. Stress and anxiety may inhibit the capacity of a child to supply information at a particular point in time.

So far as courts are concerned, the days when children were considered to be incapable of giving reliable evidence are long gone.

1. The Court held that the critical question is how the jury would have understood the remarks. They went on to say:

[11] ... If it is possible that the jury would have understood that they were required to assess the evidence of the children in accordance with what the trial Judge had said, the trial Judge would have impinged impermissibly upon the function of the jury as the sole arbiters of the facts.

[12] The remarks in question were given at the outset of the summing up. They were expressed in firm and direct terms. Notwithstanding that his Honour told the jury that he was going to talk to the jury "in a general sense about the weight which may be given to the evidence of children", and notwithstanding later directions that the weight to be given to the evidence of the children was a matter for the jury and the jury alone, the remarks presented the five numbered propositions as the incontrovertible view of the court. The presentation of this view was not hedged with any qualification. Nor was it hedged with a direct or indirect statement or implication that it was a matter for the jury whether the jury agreed or disagreed with the five propositions. There was no hint given that it was within the province of the jury to reject any or all of the propositions as the jury saw fit.

1. In CMG v R [2011] VSCA 416 the Court had occasion to consider how a trial judge might legitimately deal with counsel's submissions which were directed to suggesting that the jury should consider particular aspects of a child's evidence unreliable or unworthy of weight in light of the different cognitive functioning of a child, their susceptibility to suggestion and desire to appease adults and their tendency to confuse reality and fantasy. At [10] the Court confirmed that the trial judge was entitled to conclude that the jury needed to be told that counsel's views, while properly presented as arguments, were not evidence, and that the jury needed to be presented with a somewhat nuanced picture from the trial judge including that it is the collective experience of the courts that the age of a witness is not determinative of his or her ability to give truthful and accurate evidence. However, in so doing, the Court determined that the trial judge cast her remarks as directions of law, some of which she claimed were informed by academic study and research, and in that way she exceeded her judicial function and entered the arena. In the result the conviction was overturned. The Court referred to the following extract from R v Barker [2010] EWCA Crim 4, a judgment of the English Court of Appeal, with approval:

Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children, carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child ... In a trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence.

1. While their Honours did not endorse the extract as a template, they observed that had the trial judge responded to counsel's address by the inclusion of the substance of what the Court of Appeal in Barker observed, no complaint could have been made.

1. While in the present case his Honour's observations about children speaking and thinking differently from adults might have been classed as legitimate comment, I am satisfied they were overtaken by other observations sourcing from his Honour's personal experience and personal views about children such that there was a blurring of the essential distinction between a judicial direction and a comment. Some of his Honour's remarks could only have been understood as directions given the imperative language in which they were expressed. The most serious of these being the requirement that the jury were to assess the complainant's evidence against the background that if she was being truthful she might find difficulty giving her evidence because she was reliving the assaultive experience in the process. This direction had the effect of inviting the jury to find that defence counsel's submissions about her demeanour in the witness box were of no weight in undermining her credibility. Other observations were nothing more than his Honour's personal views about the complainant but which were again cast in terms that would have signalled to the jury in unmistakeable terms that his Honour regarded her as a reliable witness. To describe her as someone who was in fact in control of her emotions while giving evidence (in effect despite her inner turmoil as a victim of the assaults) far exceeded the bounds of permissible comment in a case where the credibility of the complainant was a significant and contentious issue. In Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397 the importance of maintaining the distinction between comment and direction was emphasised at [16]:

The distinction between a direction and a comment by a trial judge is referred to in Azzopardi v R. It reflects the fundamental division of functions in a criminal trial between the judge and the jury. The distinction is important. Telling a jury that they may attach particular significance to a fact, or in this case suggesting that other evidence may be considered of greater weight, is comment. Because it is comment it may be ignored by the jury, a matter about which the jury should be told. A direction, on the other hand, may contain warnings about the care needed in assessing some evidence or the use to which it may be put. A direction is something which the law requires the trial judge to give to the jury and which they must heed.

(See also Crampton v R [2000] HCA 60; 206 CLR 161.)

Orders

1. The orders I propose are:

1. Leave is granted to extend the time for bringing the appeal.

2. Appeal against conviction allowed.

3. Conviction on both counts on the indictment is quashed.

4. Order a new trial.

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Decision last updated: 03 March 2015