RH v R - [2014] NSWCCA 71

Court of Criminal Appeal

New South Wales

Case Title: RH v R

Medium Neutral Citation: [2014] NSWCCA 71

Hearing Date(s): 12 December 2013

Decision Date: 09 May 2014

Before: Ward JA at [1];
Harrison J at [316];
RA Hulme J at [317]

Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law - evidence admitted of prior guilty plea and admissions of aggravated indecent assault in trial of other indecent assault charges where accused pleading not guilty

CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law -whether risk of contamination or concoction of evidence between complainants

CRIMINAL LAW - appeal and new trial - whether verdict unreasonable or insupportable having regard to evidence

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited: BP v R; R v BP [2010] NSWCCA 303
DJV v R [2008] NSWCA 272; (2008) 200 A Crim R 206
Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Hoch v The Queen [1998] HCA 50;(1988) 165 CLR 292
HML v R [2008] HCA 16; (2008) 235 CLR 334
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
R v AH (1997) 42 NSWLR 702; (1997) 98 A Crim R 71
R v Beserick (1993) 30 NSWLR 510
R v Dann [2000] NSWCCA 185
R v Fung [2002] NSWCCA 479; 136 A Crim R 95
R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
R v SK; SK v R [2011] NSWCCA 292
R v Thomas Douglas Watkins [2005] NSWCCA 164
Simpson v Robinson (1848) 12 QB 511; 116 ER 959
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
TWL v R [2012] NSWCCA 57

Category: Principal judgment

Parties: RH (Appellant)
Regina (Respondent)

Representation

- Counsel: Counsel:
R Steward (Appellant)
H Wilson SC (Respondent)

- Solicitors: Solicitors:
Prime Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/022334

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Lakatos DCJ

- Date of Decision: 19 December 2012

- Court File Number(s): 2010/00022334

Publication Restriction: Prohibition on publication of any matter identifying or likely to lead to identification of complainants pursuant to s 578A Crimes Act 1900

JUDGMENT

WARD JA: This is an appeal against the appellant's conviction for a number of child sexual assault offences. The offences were committed against two children that he and his wife had first fostered and then adopted. To preserve the anonymity of the complainants, I have referred to each of them (and to others by reference to whom their identity might be revealed) by use of pseudonyms.
Six of the seven counts on the indictment related to conduct over the period from September 1989 to 1993 against one foster daughter (Jane), when she was aged between 9 and 12 years.
The seventh count related to conduct in 2003 against another foster daughter (Kay), when she was 12-13 years' old. That count was added by way of amendment to the indictment as a consequence of evidence that Kay gave during a voir dire hearing before Finnane DCJ in advance of the trial.
The appellant was tried by a jury of twelve in a hearing before Lakatos DCJ. The appellant was found guilty on all but one of the counts relating to the conduct against Jane: three counts of sexual intercourse with a child under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW) (counts 1-3); one count of sexual intercourse with a child aged between 10 and 16 years, contrary to s 66C(1) of the Crimes Act (count 4); and one count of aggravated indecent assault on a child under 16 years, contrary to s 61M(1) of the Crimes Act (count 5).
The jury did not reach a verdict, and was discharged, on count 6. That was a further count of aggravated indecent assault on a child under 16 years but one which, unlike the others, was not alleged to have taken place during the night in Jane's bedroom; rather, it was alleged to have taken place while swimming at a beach.
The appellant was found guilty on the sole count relating to conduct against Kay, in 2003, a count of aggravated indecent assault on a child under 16 years contrary to s 61M(1) of the Crimes Act (count 7). That conduct, again, took place in the child's bedroom but occurred in the morning. Kay also gave evidence at the trial of two earlier uncharged incidents of similar abuse, on which the Crown relied as context and tendency evidence.
Relevant to some of the grounds on which the appellant now appeals against his convictions is the fact that he had pleaded guilty in 2010 to five counts of aggravated indecent assault involving a third foster daughter (Lisa). Those offences were committed between December 2005 and November 2006, when Lisa was 11 years' old. Evidence of the conduct that was the subject of those convictions was before the jury by way of an agreed statement of facts. Further, each of the appellant, his wife, Lisa and Kay gave evidence relating to the offences against Lisa and/or as to the circumstances surrounding Lisa's disclosure of the conduct to which the appellant had pleaded guilty.
The appellant was sentenced by Lakatos DCJ to an aggregate sentence comprised of a non-parole period of 5 years with a further period of imprisonment for two years from the expiry of the non-parole period. He is eligible to be considered for parole at the expiration of the non-parole period on 17 July 2017. There is no appeal from the sentence imposed by Lakatos DCJ. There was no suggestion in the reasons on sentence by the trial judge of any disquiet in respect of the convictions.

Background

Foster placements/occasions of alleged abuse

The appellant and his wife have 3 natural daughters, two of whom (to whom reference will be made in the course of these reasons) are Mary and Nora. The appellant and his wife had been involved, over a considerable period of time, in organisations that facilitated the placement of children in foster care and had provided foster care for many children; "dozens upon dozens" according to the appellant, at least 40, according to the appellant's wife. Most of those foster children had been fostered on temporary placements. The appellant's wife had, at least for some of the time, a business that involved the provision of childcare.
There was no dispute at trial as to the respective ages of each Jane, Kay and Lisa when they were placed in foster care with the appellant and his wife (nor, in the case of Jane and Kay, as to their age when they were adopted by the couple), those being agreed facts at the trial. It was also not disputed that all three of the children in question had been removed from troubled or disturbed households, though this was not part of the agreed facts. In the case of Jane, the Crown raised no objection to Counsel for the appellant referring to the fact that she had been removed from her biological mother's care because she had been subjected to abuse and neglect. Both the appellant and his wife referred in their evidence to Jane having been affected by her background when she arrived in their home (variously describing her as "tender", "agitated", "jumpy" and an "extremely damaged and extremely distressed" child.

Jane

Jane was placed in foster care with the appellant and his wife in June 1989, when she was almost 8¾ years' old. Prior to that, Jane had been in temporary foster care for approximately 18 months with another carer. She had been removed from the care of her biological mother when she was 7 years' old.
At the time Jane was placed in the care of the appellant and his wife, their three biological daughters were still living at their home and the appellant and his wife had already fostered, and adopted another daughter (the appellant referring to his three biological daughters and the first adopted foster daughter as "more or less [his] first family").
Jane was adopted by the appellant and his wife when she was 12 years' old. The appellant's evidence was that Jane had been "desperate" to be adopted "by hook or by crook".
The offences found to have taken place against Jane occurred both before and after her adoption. Jane's evidence was that after she came to live with the appellant and his wife the appellant engaged in "tickle fights" with her (conduct that the Crown characterised as "grooming behaviour"), which involved the appellant tickling various parts of her body but, she said, mainly touching her breasts and genital area. Jane's evidence was inconsistent as to when the tickle fights had commenced and for how long they had continued before the first occasion on which the conduct with which the appellant was charged, and found guilty, occurred.
Jane said that when she was "about" 9 years' old, the appellant started coming into her bedroom at night (identified as bedroom 2), touching her breasts, genital area and face; rubbing her vagina; and digitally penetrating her vagina. Jane's evidence was that the appellant's conduct "eased off" once she commenced menstruation at around 12 or 13 and that it had stopped altogether by the time she was 14 years' old. Jane left the appellant's home when she was about 16-17 years' old (i.e., around 1996/1997). The appellant described that as a "traumatic" time, being the first time that one of the family had left in unhappy circumstances.

Kay

Kay and her brother were placed in foster care with the appellant and his wife in July 1994. Kay was just under 4 years' old. At that time, Jane was nearly 14 years' old and the only child still living in the appellant and his wife's home. Kay and her brother were adopted by the appellant and his wife in 1997, after Jane had left the home and around the time that Lisa and her sister were placed with them.
Kay gave evidence of sexual abuse by the appellant occurring in 2003 (after Jane had left home). She had a specific recollection of three particular incidents, when she was around 12-13, when she said the appellant put his hand into her underwear and rubbed her vagina on the outside, although she said that the abuse had occurred on many times. Kay did not recall the appellant ever having touched her breasts. Only the third incident was the subject of a criminal charge (count 7).
The first specific incident which Kay recalled was placed by her as occurring when the appellant's wife was in hospital. Kay said that on that occasion, she had asked the appellant if she could sleep in his and his wife's bed and that when she was in their bed, the appellant had put his hand in her underwear and rubbed outside her vagina. Kay said that on that occasion the appellant had said to her "Do you like that?" (on the voir dire she had put this as "Do you not like that?" and "Do you not like this?"). Kay did not think that this was the first time that the appellant had touched her inappropriately, because she could remember feeling that it was a familiar thing to happen, but it was nevertheless the first incident that she was able specifically to recall. (From documents subpoenaed from two hospitals at which the appellant's wife had received treatment, the first such hospitalisation was in 2000. If so, this would place the first incident recalled by Kay as occurring in 2000. If so, she would have been around 10 years' old at that time.)
Kay placed the second incident as occurring shortly after the first, this time when she was in her own bed (identified by her, at the trial, as bedroom 2 but about which she was uncertain at the voir dire hearing - on that occasion she was not sure whether it was a different bedroom from that of the count 7 incident, but was sure that it was a different bed). At trial she also confirmed that it was a different bed. Kay said that the appellant had come home from a Lions Club meeting. Kay said that she had asked the appellant to tickle her back and that he did so but that he then put his hand down her pants and reached underneath and rubbed her vagina. The timing of this incident is of some significance, since the evidence of the appellant and his wife was that in 1997, when Lisa joined the household, Lisa occupied bedroom 2.
As noted, those two incidents were not the subject of any charges against the appellant but were relied on by the Crown at the trial as context and tendency evidence.
The third incident (which was the subject of count 7) was one that Kay recalled occurred in a different bedroom (identified as bedroom 5) and took place in the morning. Kay said that she was in bed and that the appellant came in, put his hand down her pants and rubbed her vagina; that she said to him, in what she described as "a joking manner" that she would scream; that she then said that she needed to go to the bathroom; took a mobile phone, went to the bathroom and called the appellant's wife, who she said was at work. Kay said that she then ran to a caravan at the side of the house and locked herself in; that she was very upset and was crying; that the appellant tried to open the caravan door; and that the appellant had said to her "Come out. We can talk about it" and had asked her if she had rung her mother. Kay said that this was the last time that the appellant had touched her (by which, in the context, I infer meant that this was the last time he had touched her inappropriately).
Kay's evidence was that she disclosed the appellant's conduct to the appellant's wife that same day, when the appellant's wife returned from work. (I refer to the circumstances and content of this disclosure in more detail later in these reasons.) Kay remained in the appellant's and his wife's home until early 2009 when she left to undergo vocational training.

Lisa

Lisa and her sister were placed in foster care with the appellant and his wife in 1997. Lisa was around 2-3 years' old at the time; Kay was around 7 years' old.
Lisa's evidence was that between 2005 and 2006, i.e., when she was between 11-12 years' old (and, according to her police interview, just after she "hit puberty", the appellant came into her bedroom, touched her breast and twice put his mouth on her breast. That conduct was the subject of the charges to which the appellant pleaded guilty. In her police interview, Lisa said that the appellant "did it so many times", did it "anywhere, bedroom, loungeroom" and that he had touched her breasts and sometimes her vagina, though I note that touching her vagina was not part of the conduct to which the appellant pleaded guilty. Lisa also said that sometimes the appellant had pretended he was tickling her.
On the occasion the subject of the last such count, the appellant's wife walked into Lisa's bedroom and witnessed the appellant touching Lisa's breast. At the trial, the appellant's wife was adamant, notwithstanding the appellant's guilty plea, that the event she had witnessed, though inappropriate, was a "spontaneous act" and was not of a sexual nature. The appellant's wife was steadfast in her belief that the appellant had not committed the offences to which he had pleaded guilty.
From the above brief chronology it is apparent that: the admitted offences against Lisa occurred while Kay was still living in the appellant's home, some 2 or 3 years after the conduct involving Kay; and that the conduct of which Jane complained occurred some 14 years before the conduct involving Kay and some 16 years before the offences admitted to have taken place against Lisa. Much significance is placed by the appellant in the present proceedings on the temporal gaps between the respective incidents: from 1989-1993 (in the case of Jane); to 2003 (in the case of Kay); and then in 2005-2006 (in the case of Lisa).

Disclosure by respective complainants of appellant's conduct

Jane

Jane's evidence was that, after she was adopted (i.e., around 12 years' old), she told the appellant's wife that the appellant was touching her and doing things to her. The appellant's wife adamantly denied this. Jane said (and this was also denied by the appellant's wife) that when she made the disclosure that the appellant had been coming into her bedroom and touching her at night and what she said was happening at the beach, the appellant's wife physically attacked her; called her a liar, a tramp and a whore; and told her that she was throwing herself at him. Jane said that the appellant's wife told her that no-one would believe her if she told anyone; and told her that if it was not for them she would not have a family. Jane did not tell anyone else about the appellant's conduct at the time.
In about 2000 or 2001, according to Jane, though placed at around late 2002/2003 by Mary's husband, Paul (by which time Jane had been living away from the appellant's home for a few years), Jane disclosed to Paul that she had been sexually abused by the appellant. She says that she did not give Paul any detail of the abuse. Paul gave evidence in substance corroborating Jane's evidence as to this disclosure, though as noted he said it was in 2003 or late 2002/2003. Paul said that Jane had told him that the appellant had touched her inappropriately but had not given him any details. No disclosure was made by Jane to Mary at this time, though Paul thought that he would have said something to Mary about Jane's disclosure.

Kay

The next evidence of any complaint about the appellant's conduct occurred in 2003 at the time of the incident the subject of count 7. It is not disputed that Kay rang the appellant's wife at this time. Kay also locked herself in the caravan next to the house (I will refer to this incident of abuse as the caravan incident although there is no suggestion that it took place in the caravan.) There is no dispute that when the appellant's wife came home there was a disclosure of some kind made to the appellant's wife on this occasion, as to the appellant touching Kay. However, the versions given by Kay, on the one hand, and by the appellant and his wife differed markedly.
At the voir dire hearing, when asked what she had told the appellant's wife on that occasion, Kay said "I don't remember. Just that Dad had touched me. Nothing other than that". At the trial, Kay said that she had told the appellant's wife that "dad had stuck his hand down my pants and had touched me"; that he had touched her vagina and that it was not the first time.
Kay also said that, after that incident, there was a conversation with the appellant's wife as to whether Kay wanted the appellant to move out or if Kay wanted to move out and live with her older sister (Mary) and that the appellant's wife said that they could not tell anyone because the other foster children (by this stage, Kay's brother, Lisa and Lisa's sister) were too old to get new homes. The appellant's wife denied this. Kay also said that the appellant's wife promised her that it would never happen again to anyone and said "I'll make sure that it doesn't happen again ever".
The version given by the appellant's wife, consistent with the version she gave to a psychiatrist later that year and with the version given by the appellant, was that Kay had said to her words to the effect that the appellant had taken a kitten out from underneath her shirt and had touched her breasts; that she was angry; and that she had questioned whether he had a right to do that. (That version of events was not wholly consistent with the version given later to the Department of Community Services (DOCS) caseworker to whom the incident was reported.)
At trial, Kay denied that when this incident occurred she had had a cat or kitten down the front of her shirt; said that she did not think that she had had a cat or kitten in the room when the appellant came in; said that she did not like animals in her bed; said that she did not ever remember the appellant touching her breasts; and denied that she had told the appellant's wife that the appellant had touched her breasts as he was taking the cat away from her that she had down the front of her nightie.

Later in 2003, the appellant and his wife took Kay to see a psychiatrist, Dr Rewais. The referral to Dr Rewais was provided by the appellant's doctor, Dr Smith. There was some doubt in the evidence as to how that referral had been procured. The appellant's wife, when giving evidence at the trial, was questioned by the Crown as to the circumstances in which that referral was made; in particular as to the answers given by the appellant's wife to the Court at a pre-trial hearing on 29 February 2012. The appellant's wife accepted, at trial, that at the pre-trial hearing she had said she was unable to recall the name of the "counsellor" and that she thought it was someone at Cronulla. It was not disputed that at all relevant times Dr Rewais' practice was based at Miranda.
The appellant's wife denied that she had made the arrangements for Kay to see Dr Rewais, said that she was not aware who had; and said that she did not remember what she had told Kay and did not know at the time that her husband had been seeing Dr Smith in July and August 2003 (though she knew he was being treated by a doctor at that time. The appellant's wife also accepted that at the pre-trial hearing her evidence as to how she came to find the counsellor had been that she did not actually recall but that it could have been somebody whose name or information had been given during a DOCS meeting.
According to Dr Rewais' notes, there were three consultations with him. The appellant's wife gave evidence, inconsistent (in this respect and others) with the psychiatrist's contemporaneous notes, that she had only attended in consultation with Kay once and that she had not spoken with Dr Rewais again until after he had concluded his discussions with Kay (though she said that Kay had attended Dr Rewais' office on a couple of other occasions).
At the voir dire hearing, Kay said that when she saw the "counsellor" (Dr Rewais) she had "said not exactly what he had done to me, more like a watered down version, I guess to protect him" and that she had said "that he just touched my breasts, which weren't really breasts then". At trial, she admitted that she had given what she called a "watered down" version of the incident to the psychiatrist; said that what she had told Dr Rewais was a lie; and said that she had told him because that was what her mother had told her to do. Kay explained what she had meant by "watered down" was that she thought touching someone's breasts was less bad than touching someone's vagina.
Dr Rewais' notes recorded that the appellant was present at that first consultation and that both the appellant and his wife became very upset and angry when he informed them that he would be obliged to make a formal notification of the incident to DOCS.
Dr Rewais said that the appellant's wife had told him that she was "shattered"; that she felt betrayed; that she would not have sought help if she had known that this was going to happen; that it would rip the family apart; and that she had raised concerns as to her business (as a licensed childcare worker). Dr Rewais' notes recorded that Kay was very, very upset, scared and distressed and that she did not want to get the appellant and his wife into trouble; and that "Kay seemed to be under a great deal of pressure to minimise the significance of the alleged abuse". His recollection was that the appellant and his wife were pushing not to have the notification made and not to make "too much of an issue of that". He said in his evidence in court that Kay was already quite distressed before he had mentioned the notification to DOCS.
Dr Rewais' impression at the time, from Kay's level of distress and how she was presenting, was that Kay did not feel that the incident was "an incidental situation". He was of the opinion that "something" had happened and he said that he had enough concern to make the notification to DOCS.
Dr Rewais said that there was a suggestion at the time (he thought it would have been by the appellant's wife, as she had been doing most of the talking in the sessions) that the family would contact DOCS first and would then provide him with the contact details of someone at DOCS for the purposes of the notification; and that they did so. He later spoke with a DOCS caseworker (Ms McKenzie). He also wrote to the general practitioner who had referred Kay to him (Dr Smith) recording, inter alia, that the appellant had appeared "remorseful" at first but in subsequent appointments had become very angry. (The appellant denied having attended during the consultation for any of the subsequent appointments).
At trial, the appellant's wife said that she did not recall telling Dr Rewais anything (his notes said that she said she was shattered); could not recall the conversation at all; did not recall that Dr Rewais had informed her and her husband that he would have to notify DOCS; denied that Dr Rewais had told them on the first visit that he would have to notify DOCS. Then, quite remarkably given the content of Dr Rewais' contemporaneous notes and the likely reaction that any such advice would be expected to cause, the appellant's wife said that at the final conversation Dr Rewais had said "I don't think that there is any particular problem here but I think that maybe we should speak with DOCS" and that perhaps she and Kay would like to go and speak to DOCS before he did. The version given by the appellant's wife is inconsistent with Dr Rewais' evidence that he considered that the disclosure gave rise to an obligation on his part to make the relevant notification.
Significantly, when considering the credibility of the appellant's wife, she said at trial (inconsistently with Dr Rewais' contemporaneous notes) that she did not recall becoming quite angry in the consultation with Dr Rewais; did not recall raising her voice to him; did not recall that she had told him that she felt betrayed or that she would not have sought help if she had known that he was going to notify DOCS; did not tell him that it would rip the family apart; and did not express concerns about the ramifications for her business or about the other children in foster care with her at that time. She professed a complete lack of recollection about the conversation with Dr Rewais. She did not recall any meeting with Dr Rewais where her husband was present; did not recall being "very upset" though she did not deny that she "was upset at the suggestion that we should introduce DOCS into any procedure" and said that the reason for this was that "I just felt it didn't warrant what was suggested".
The appellant's wife agreed at trial that she had contacted DOCS around that time and had made an appointment with somebody that she knew at DOCS. She said she could not recall who had suggested anything but added that her memory was that Dr Rewais had suggested that perhaps she should take Kay and have a talk with them.
The DOCS caseworker to whom the appellant's wife spoke (Ms McKenzie) was at one stage a DOCS caseworker for Lisa (and someone with whom the appellant's wife said she had had previous dealings with other children who had been placed with her). The appellant's wife accepted that at the pre-trial hearing she had said that she and Kay had seen Dr Rewais in the morning and then had seen the DOCS person about lunchtime or early in the afternoon on the same day, but at trial she said that was not her recollection and she did not know when she had seen them.
Kay's evidence was that the appellant's wife had written out on a piece of paper, in advance of the meeting, what she was to tell DOCS in relation to the incident (namely, "that Dad had touched my breasts and that he was just checking puberty-wise what was going on with my body and that I wasn't concerned about it at all; but that Dr Rewais had said that he had to report it" and that this was what she had said to the DOCS caseworker. The appellant's wife denied that she had written anything at all and the appellant denied having seen any such document.
Ms McKenzie gave evidence of the interview with the appellant, his wife and Kay. Ms McKenzie thought that the appellant's wife had arranged the meeting but was not one hundred percent sure; other than that she knew that she had not arranged it herself. She thought that the appellant's wife had spoken first and said:
She said something like [the appellant] had touched [Kay] on the breast and, like, and got a surprise and said, "Oh, boobs," like it was a surprise that she was developing
...
my memory is that they almost made it sound like it was an accidental thing that happened.
Ms McKenzie's recollection was that the appellant's wife had dominated the conversation. Ms McKenzie said that she then had a separate short interview with Kay and that Kay had said "it was a very minimal thing that happened ... she almost made it sound like it was an accidental thing. She was quite embarrassed". Ms McKenzie said that she asked Kay whether she was upset by it and that Kay said that she was not and that she asked Kay whether she wanted to take it any further and that Kay said she did not. Ms McKenzie spoke immediately with her supervisor and said that he had said that "from what [Kay] had told me that we really didn't have grounds to take it any further". Ms McKenzie could not recall any mention of a cat.
Ms McKenzie was not aware of the fact that Kay had seen a psychiatrist in relation to this incident and was not informed that the appellant and his wife had obtained a referral from his doctor to take her to the psychiatrist in relation to the incident.
Kay's evidence was that the first time that she communicated to anyone, other than the appellant's wife, what the appellant had done to her was in 2006 (on the same day that the appellant's wife witnessed the incident where the appellant had his hand on Lisa's breast). She said that this was a communication to Lisa that the appellant had "done the same thing" to her, but that she did not give Lisa any further details.
As to what had occurred on that occasion, Kay recalled that one morning before school she had been told, by her brother and by Lisa's sister, that her parents were having a "massive fight". She said that the appellant's wife then took her aside and said "What happened to you happened to [Lisa]". Kay said that she "knew what that meant straightaway. She didn't have to explain to me at all". As it was not suggested that the appellant's wife had told Kay what she had actually witnessed, if this is the correct order of events this can only logically be understood as being that Kay made an assumption that what the appellant's wife was referring to as having happened to Lisa was touching of the kind that Kay alleges had happened to her (inappropriate touching or, to be more precise having regard to her evidence in connection with the trial, rubbing on the outside of her vagina).
Kay said that she went to Lisa's room and said to her "The same thing happened to me" so that Lisa would know that she was not alone. Kay said that what she meant by that was that the appellant had abused her as well. She accepted that at that point she did not know specifically what had happened to Lisa. At some point later that day when she and Lisa were together, probably in a bedroom, Kay said that Lisa told her that the appellant had put his mouth on her breast and had asked if she liked it.
Kay's evidence was that the appellant's wife told her that the appellant had said he was going to call the police but that she had asked him not to do so. The appellant's wife denied this.
A few days after this, following an argument about an unrelated matter, Kay, Lisa and Lisa's sister went to Mary's place. Kay said that some of the foster children had decided to run away from home and she went with them. Kay's evidence was that when the appellant came to take them back home, she told Mary, in the presence of Lisa, that the appellant had molested both herself and Lisa. She said that she did not tell Mary the details and that Lisa said nothing. Mary in essence corroborated that evidence. So did Lisa, who said that this was the first time that she had heard the word "molested". The appellant said that he recalled an argument and that Kay had shouted something at him but could not recall what.
Mary then asked two pastors from her church to come to the house but neither Kay nor Lisa made any disclosure to them about the alleged abuse.
The children remained at Mary's place for a few days. There was a family meeting there, attended by the appellant, his wife, Mary, Paul, Nora, Kay and Lisa. I will refer in due course to the versions of what was said or discussed at this meeting. Relevantly, however, the appellant accepts that the topics for discussion included what was in the best interests of the children and that he had apologised for the matter having come to the stage of a family meeting.
Among other things, Kay said that in the course of that meeting the appellant's wife said that if the children moved back home a big door would be put over a void in the staircase and locked at night so the appellant could not come up to the children's rooms in the evening. That evidence was consistent with the evidence given by Mary and Paul as to what occurred in the family meeting (i.e., the reference being made to locks being placed on the doors of the children's rooms) and by Lisa's evidence to the police, as well as the evidence of the appellant himself, to which I will refer shortly. The appellant's wife recalled some discussion about locks on doors but dismissed this as something that was not serious ("tongue in cheek").
Tellingly, the discussion about putting locks on doors was part of discussion as to a family agreement as to what was to take place if the children were to return to the appellant's and his wife's home. The appellant referred to this as a discussion about "protocols", although later correspondence to DOCS referred to these as "structures". Further, the appellant recalled that one of the protocols was that he was not to go to the children's rooms and that his wife was to know where he was at all times. Such a protocol is not consistent with the appellant's wife's denial that any offences had been committed and it supports a conclusion that the family members had no trust in the appellant's conduct. It also supports a conclusion that Kay was truthful in her evidence that the incidents with Lisa were not the first occasion when the appellant had engaged in sexual abuse of this kind.
The only other occasion on which there was reference to any discussion between Lisa and Kay as to the appellant's conduct towards Lisa, prior to the trial, was in evidence given by Kay during the voir dire hearing that, at a country musical festival in Tamworth, she had had a conversation with Lisa about the appellant's conduct. However, Kay said that this was not about what had happened; rather that Lisa had said that she was upset about it.
Kay left home in about February 2009 for vocational training. She gave evidence that in about June 2009, before a trip she was taking to America, she had a conversation with the appellant in which he said that he was worried about what Lisa might say or do; that he was sorry for what he had done; that he had asked for God's forgiveness and believed he had been forgiven; and then asked for Kay's forgiveness. The appellant denied this conversation. The reference to supplication to God for forgiveness is relevant in light of the evidence that Kay was a person with religious faith. Indeed, she explained the delay in making complaint of the appellant's conduct to her having forgiven him. Further, the existence of concern on the part of the appellant as to disclosure by Lisa (though denied by him) would be consistent with Lisa's evidence that she had on various occasions held the appellant's conduct over him.

Lisa

Lisa moved out of home after Kay left and was for a time living in a refuge. She gave evidence of an occasion when she was staying at the refuge, and the appellant was driving her back to the refuge, when she said that the appellant told her he loved her; that God had forgiven him and that she had "better forgive him too". The appellant denied this.
Lisa notified DOCS of her complaints in around mid 2009. DOCS referred the matter to the police.
The appellant was then charged with five counts of aggravated indecent assault against Lisa. In about August 2009, Kay gave police a statement, in connection with the charges involving Lisa, in which she said that she had also been sexually abused by the appellant but that did not want to give details of the abuse. Accordingly, it was accepted by the appellant's Counsel in these proceedings that from August 2009 the fact that Kay had disclosed previous abuse was known. The appellant emphasises, however, that it was not until the voir dire hearing that Kay made known the details of the abuse of which she had earlier complained.

Disclosure by Jane in 2009

Sometime in about September 2009, after the appellant had been charged in relation to the assaults on Lisa, Mary and Paul told Jane that the appellant had been charged and that he had been hurting Kay and Lisa. Paul gave evidence that what he told Jane was that the appellant was in gaol "for inappropriately touching [Lisa] and [Kay]". Mary's evidence was to similar effect. Jane's evidence was that she then reminded Paul of her earlier disclosure to him. Again, this was broadly corroborated by the evidence of Paul and Mary.
Jane then gave police a statement in January 2010 as to the appellant's conduct towards her, which led to the charges the subject of the proceedings commenced against the appellant in 2011. She gave a second statement to the police in September 2011. At the trial she was cross-examined on those statements.

Plea of guilty regarding conduct towards Lisa

On 14 December 2010, the appellant admitted his guilt in relation to the five counts involving conduct against Lisa. He was given a 15 month suspended custodial sentence.
In the present proceedings, the Crown tendered in evidence a Statement of Agreed Facts signed by the appellant, in which the appellant agreed that, in pleading guilty to the offences against Lisa, he had admitted the facts there set out when the matter was dealt with by the Local Court.
Those admissions included a description of the conduct the subject of the five counts of aggravated indecent assault against Lisa: each of the first two counts included conduct (occurring on the same occasion) in which the appellant placed his mouth over one of Lisa's breasts while she was lying in her bedroom; the third count related to the appellant coming into her bedroom after a Lions Club meeting, lifting her body up and placing his hands under her clothing and onto her breasts; the fourth count was of sliding a hand down Lisa's stomach and onto the top of her vagina (under her pyjama pants and on top of her "pull ups"); and the fifth count was the occasion when the appellant's wife had walked into the bedroom and witnessed his hand on Lisa's breast.
As to that last count, the Statement of Agreed Facts stated that the appellant had come into Lisa's room to wake her up; that he had walked over to her bed and placed both his hands under her clothing and onto both her breasts; that his wife had opened the door and looked into the bedroom; that he had quickly removed his hands and left the room; that Lisa had started to cry and said to his wife "He touched me" and pointed to her breasts; and that, some time after Lisa had made that disclosure, his wife had arranged a family meeting attended by him, Lisa, Kay, two of their natural daughters (Mary and Nora) and his wife; and that he had said on numerous occasions "I am sorry for everything".

Voir dire hearing

As has been noted earlier, the appellant was initially charged only with the conduct relating to Jane. A pre-trial voir dire hearing was held in February 2012 before Finnane DCJ in the context of an issue that had arisen as to access to documents that had been sought under a Crown subpoena to DOCS, in circumstances where the Crown submitted that if certain of the subpoenaed materials did not fall within the category of protected communications then they might need to be tendered by the Crown as relevant to inculpation or exculpation. Ultimately, no such material was tendered in the trial and nothing turns on this.

However, at the voir dire hearing, issues were also raised as to the admissibility of evidence the subject of two tendency notices that had been issued by the Crown pursuant to s 97 of the Evidence Act 1995 (NSW), the first in relation to tendency on the part of the appellant, the second in relation to tendency on the part of his wife.
As to the appellant, the tendency sought to be proved included his tendency:
2(a) To have a sexual interest in girls aged between 8-13
(b) To sexually and indecently assault young girls who were in his care until they reached puberty
(c) To use his position of authority as a foster father in order to gain access to young girl's [sic] for the purpose of sexually and indecently assaulting them
As to the appellant's wife, the tendency sought to be proved by the Crown included a tendency to dissuade, discourage and deter young girls who were in her care, and who complained about sexual abuse by the appellant, from telling other persons about the abuse or reporting it to authorities.
Evidence was called at the voir dire hearing from each of Jane and Kay, as well as from Lisa, Mary, Paul and the appellant's wife. The trial advocate explained to Finnane DCJ that this was in the context of testing the reasonable possibility of contamination and concoction between the complainants.
Following the disclosure by Kay, in the course of that evidence, of details (hitherto unforthcoming) of the alleged sexual abuse by the appellant towards her, the Crown obtained leave to serve amended tendency notices and sought leave to present an amended indictment which contained the additional count of aggravated indecent assault on Kay.
Finnane DCJ gave judgment on the admissibility of the tendency evidence on 2 May 2012. In summary, his Honour did not permit the Crown to call evidence directed to showing tendency as claimed on the part of the appellant's wife. However, his Honour did permit evidence to be adduced from each of Jane, Kay and Lisa as tendency evidence going to the tendency sought to be established on the part of the appellant.
His Honour (at [27]-[30]) addressed the submission of Counsel for the appellant that there was evidence of concoction. His Honour expressed the opinion that it was now doubtful that the Hoch principle (derived from Hoch v The Queen [1998] HCA 50; (1988) 165 CLR 292) (that propensity evidence should be rejected if there is a reasonable possibility of concoction) still stood, having regard to ss 97, 98 and 101 of the Evidence Act. His Honour considered that it was not necessary to determine that issue, being content to follow the reasoning of Hodgson JA in BP v R; R v BP [2010] NSWCCA 303 (at [106]-[111]).
His Honour concluded (at [31]) that there was no real chance of contamination of the evidence of the tendency witnesses, noting that most of the complaints were in vague terms and that the mere fact of complaints being made, afforded no basis for concluding that there was a real chance of concoction, as opposed to a merely speculative basis for concoction. Indeed, his Honour went further (at [32]) and expressed the opinion that there was nothing at all in the evidence that raised "even vaguely" the possibility of concoction. (In the present proceedings, the appellant contends for the opposite conclusion.)
His Honour went on to note (at [32]) a submission by Counsel for the appellant that the tendency evidence should not be permitted because it lacked probative value and its prejudicial effect outweighed the probative value. His Honour stated (at [33]) that the correct application of the principles to which he had referred resulted in the admission of the evidence, concluding that it was "strong evidence of the tendency of the accused to commit sexual offences against girls under the age of 12" and that "in no way would it create impermissible prejudice against the accused, when correct explanations [sic] of the evidence is given by the trial judge" (my emphasis).
While expressed briefly, there is nothing to suggest that his Honour did not have regard to and address the correct test for the admission of tendency evidence (as is implicit from his stated conclusions at [33]) and no complaint is now made as to the test applied by his Honour.
Nor, on the present application, is any complaint made as to the content or adequacy of the directions ultimately given by the trial judge (Lakatos DCJ) at the trial as to the context or tendency evidence or as to the trial judge's refusal during the course of the trial to withdraw the tendency evidence from the jury.
The agreed statement of facts as to how and when the appellant had committed the offences, which the Crown said constituted admissions by the appellant, was admitted by consent at the trial on the basis that Lisa was going to be called in any event.
The appellant's complaint is as to the admission of the evidence in the first place, which it is contended caused irreparable prejudice to the appellant by making it "almost impossible" for the jury to regard him as a credible or reliable witness. In that regard, principal emphasis is placed on the evidence put to the jury of the appellant's plea of guilty to the offences against Lisa and the admission of the facts as to those offences.

Grounds of Appeal

Of the 9 grounds of appeal originally sought to be raised by the appellant, only 7 are now pressed, those being ground 1 and grounds 3-8.
In summary, ground 1 and grounds 3-6 relate to the admission by Finnane DCJ, prior to the hearing of the trial before Lakatos DCJ, of the tendency evidence of the complainants (Jane and Kay) and of Lisa; grounds 7 and 8 contend that the respective guilty verdicts were unreasonable and cannot be supported having regard to the evidence.

Grounds 1-6: Tendency Evidence

The basis on which it is contended that Finnane DCJ erred in the admission of the tendency evidence to prove each of the respective counts against the appellant is broadly the same and therefore it is convenient to deal with them together. For completeness, however, I note that the risk of contamination/concoction is particularly pressed in relation to ground 4 and that ground 6 focuses on the probative weight of the two earlier uncharged incidents of which Kay gave evidence. The five grounds of appeal pressed in relation to the tendency evidence are as follows:
Ground 1: The tendency evidence of Lisa was improperly admitted to prove counts one to six on the indictment (relating to the offences against Jane)
Ground 3: The tendency evidence of Kay was improperly admitted to prove counts one to six on the indictment (relating to the offences against Jane)
Ground 4: The tendency evidence of Lisa was improperly admitted to prove count seven on the indictment (relating to the offence against Kay)
Ground 5: The tendency evidence of Jane was improperly admitted to prove count seven on the indictment (relating to the offence against Kay)
Ground 6: The evidence of Kay of the two earlier (uncharged) incidents involving allegations of indecent assaults by the appellant were of insufficient probative value to be relied upon as tendency evidence
Broadly, the complaint by the appellant as to the admission of the tendency evidence is that his Honour erred in concluding that the probative value of that evidence substantially outweighed any prejudicial effect its admission might have on the appellant. It is submitted that the probative value of the evidence was diminished having regard, first, to the sequence of events (referred to as the temporal nature of the tendency) and, second, to the differences between the acts of which complaint was made. It is further submitted that the prejudicial nature of the evidence (particularly that the appellant had pleaded guilty to the offences against Lisa) was high.

Temporal nature of the tendency evidence

As noted, the conduct admitted by the appellant against Lisa occurred in 2005 to 2006, whereas the conduct complained of by Kay was in 2003 and the conduct complained of by Jane was over the period between 1989 and 1993.
The appellant accepts that, where acts are sequential and occur in a confined time period, evidence of tendency can be probative. The complaint made here, however, is that the acts in question did not occur within a confined time and, in particular, that the tendency evidence included acts subsequent to those that had been charged. Hence it is submitted that the probative weight of that evidence was less than if the acts relied on as tendency had been prior to that of the relevant counts.
The appellant argues that, in the case of subsequent acts, there might be an explanation for conduct to manifest itself at a particular (later) time (such as, in his case, his depression in 2002/2003) such that it could not be reasoned from that particular behaviour, even if it revealed a tendency, that the tendency had been present or had been acted upon at an earlier time.
Of course, on the count relating to conduct against Kay, part of the tendency evidence relied upon was of earlier conduct (being the conduct towards Jane and the earlier uncharged acts of which Kay gave evidence). Hence, the focus of the complaint as to admission of evidence of subsequent sexual conduct in relation to count 7 focuses largely on the evidence adduced in relation to the admitted conduct against Lisa.
Principally, the argument put for the appellant was that the process of reasoning in which the jury was invited to engage, by the use of the tendency evidence relating to the admitted conduct in relation to Lisa, was impermissible, requiring it to assume the existence of the claimed tendency at an earlier time, so as then to conclude on the basis of assumed, not proven, facts that the appellant was guilty of the earlier offences as charged.
The appellant argues that, when the question of admissibility of the tendency evidence was considered by Finnane DCJ, its sequential nature was not looked at. In this regard, the Crown accepts that the focus of the voir dire hearing was the issue of contamination or concoction of the tendency evidence but nevertheless submits that Finnane DCJ must also have had regard to the issue of contemporaneity in coming to the conclusion that the evidence was of strong probative value and that its prejudicial effect would be overcome by appropriate directions as to its use. Certainly, the cross-examination of the respective witnesses would have made clear to his Honour the chronological sequence of the events that were the subject of the tendency evidence.
The Crown's case at trial was that the sequential nature of the assaults supported the conclusion that the appellant had a tendency sexually to exploit his relationship with young girls of a particular age range whose family circumstances were such that each was unsupported and vulnerable, and who had been placed in his foster care; that tendency being to use each in a sexual way at a particular stage of the girl's development. Hence it is submitted that the temporal gap did not weaken the probative value of the tendency evidence (referring to R v SK; SK v R [2011] NSWCCA 292).
The appellant relies on R v Dann [2000] NSWCCA 185 and R v Thomas Douglas Watkins [2005] NSWCCA 164 as support for the proposition that conduct of the appellant at a later time could not be relied upon to reason that a tendency revealed by that conduct existed much earlier and hence had less probative value than evidence of earlier conduct would have had.

R v Dann

In Dann, this Court considered a conviction appeal by the appellant, who had been found guilty on two counts of homosexual intercourse with his 7 year old stepson. The stepson gave evidence of three other uncharged incidents occurring later in the same year as the conduct the subject of the indictment. The evidence of those subsequent acts was led by the Crown as context, not as tendency, evidence.
In Dann, this Court (Spigelman CJ, Heydon JA, and James J) was taken by the Crown prosecutor to the statement by Ireland J in R v AH (1997) 42 NSWLR 702 at 709; (1997) 98 A Crim R 71 at 78 that "[i]f the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that it is of significant probative value". Reference was also made to statements in R v Beserick (1993) 30 NSWLR 510 at 522, 523 and 525, to the effect that subsequent sexual activity is less weighty than previous sexual activity.

R v Beserick

In Beserick, there were two separate trials involving two different complainants against the one appellant. The first trial was for one count of indecent assault but evidence was also led of three to four years of subsequent sexual activity of an increasingly serious nature. The second trial related to two particular incidents but evidence was also led as to at least ten subsequent occasions when sexual activity had occurred. Hunt CJ at CL said (at 523) that:
...In general, the weight to be afforded to subsequent sexual activity will be less than that afforded to previous sexual activity, hence the proper exercise of discretion will more readily favour the admission of evidence of the previous rather than the subsequent kind. (emphasis per original)
At 525, his Honour said:
It could not usually be said that the evidence of subsequent sexual activity is relevant in order to place in its proper context the evidence of the earlier activity upon which the offence charged is based. I am not prepared to say that it could never be relevant for that purpose, but the cases in which it would be relevant for that purpose must surely be unusual ones. (emphasis per original)
His Honour also noted at 521-522 that remoteness of other sexual activity from the time of the offence charged went to the weight of the evidence and considered it to be a matter of commonsense that weight to be afforded to subsequent sexual activity would be less than that afforded to previous sexual activity. There, his Honour was addressing the admissibility of evidence going to the existence of a "guilty passion" or sexual feeling or desire between the appellant and the complainants. His Honour accepted that regard might be had to subsequent behaviour in order to indicate a state of mind existing at an earlier time (referring, inter alia, to Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 265; Simpson v Robinson (1848) 12 QB 511 at 513; 116 ER 959 at 960).
In Dann, Heydon JA (as his Honour then was), with whom Spigelman CJ and James J concurred, concluded that the probative value of the evidence of the later uncharged acts was slight, noting what had been said in Beserick. There were, however, a number of factors to which his Honour referred (at [36]) in Dann as rendering of slight weight the probative value of the evidence, not just the fact that the incidents in question were later in time. His Honour noted that the evidence as to the later incidents was "vague in time and particularity in every respect" and that, so far as they were particular, the details were "conflicting and unconvincing to a degree".
His Honour commented on the strange way in which the stepson's evidence of the first of the later incidents had ended (with a wholly non-responsive answer) and the bizarre character of the second incident; and compared the very brief way in which evidence of the later incidents had been given with the more detailed evidence of the incidents with which the appellant had been charged. His Honour also noted that the fact that the evidence was tendered only as giving a context or background meant that it had to meet less rigorous tests than those created by s 97 and that its probative value was correspondingly less.
His Honour concluded, at [37], that the evidence ought to have been rejected, saying that:
... Its low probative value was exceeded by the unfairness caused by a multiplication of questionably established discreditable instances. Though the jury were warned not to use the evidence as tendency evidence, only as relationship evidence, the distinction is difficult to grasp at the best of times. The vagueness of the evidence, particularly as to date, made it prejudicial in the sense that it was difficult for the accused to respond to it except by a denial. (my emphasis)
Here, the evidence of the admitted conduct against Lisa did not have the bizarre character of that in Dann, nor could it be said to be vague or unconvincing insofar as it comprised conduct admitted by the appellant himself. Criticism is made by the appellant of the reliability of both Jane and Kay's evidence (to which I refer in due course). Nevertheless, that evidence did not suffer from the same difficulties as the context evidence in Dann. Even though there was inconsistency in the evidence as to the time the conduct complained of by Jane and Kay took place, there was sufficient particularity as to the place of the conduct and other matters placing the conduct in a temporal context to make it possible for the appellant to respond to it otherwise than by a mere denial.
Though the appellant had admitted his conduct against Lisa, it was still necessary for the jury to consider whether it was satisfied that such conduct established a tendency, as contended for by the Crown, and whether, if so, this was capable of establishing that one or both of Jane and Kay was truthful in her allegations; i.e., that the jury was satisfied beyond reasonable doubt that any such tendency existed at an earlier time and that the appellant had acted upon it as alleged. The Crown contended that it could, because of the high likelihood that such a sexual preference would manifest in similar circumstances between the various complainants and hence that, if the appellant behaved in a particular way with one girl, he was likely to have behaved earlier in the same way with the other girls.
To the extent that this involves an assessment as to the likelihood that the conduct towards Lisa was an isolated instance (or set of incidents) or the first time that the appellant had acted on any tendency that the jury was satisfied was established by that conduct, the jury would be expected to approach this having regard to all of the other evidence before it, including any evidence that might suggest a particular explanation for the tendency only to have manifested itself at a late stage in the appellant's family life (such as the evidence that emerged of his treatment for depression in around 2002/2003).
I note that the appellant's evidence was that he did not know why he had committed the acts against Lisa. His only explanation was that "[i]t was a lack of judgment at the time" and, later, that at the time he was "deeply depressed". This is despite the fact that the appellant accepted that in a statement dated 16 October 2009 which he had given to the police and to DOCS (in which he acknowledged that "about 3 years ago [he] inappropriately touched" Lisa) he had said: "[w]hen I examined my behaviour I believe that it was prompted by feelings of a need for closeness". At the trial, the appellant agreed that his feelings at the time were of closeness to Lisa.
The jury was able to take that evidence into account as well as the explanations proffered by the appellant's wife for that conduct in her 2009 letter to DOCS, to which I will refer shortly, when determining whether a tendency had been established of the kind the Crown contended the appellant had.

R v Thomas Douglas Watkins

In Watkins, the appellant was found guilty of offences relating to the deposit by him to the credit of his own bank account company cheques with intent to cheat and defraud the company. He was the financial administrator and accountant of the company, with responsibility for the preparation of cheques for the payment of creditors' accounts. He did not have authority to sign the cheques. The defence case was that the appellant had written the cheques in question with the approval of the company on the basis that he had been instructed to pay a single cheque into his own account and then disburse amounts from that account for the payment of individual creditors.

The tendency evidence on which the Crown there relied included the appellant's conduct in earlier defrauding another company (by which he had been employed) by drawing cheques to cash. In that case, he was one authorised signatory and got the signature of the second authorised signatory by representing that the cheques were required urgently and the other signatory signed in good faith and the cheques were drawn by someone else using a printer and paid out to cash; whereas in the later case he was not an authorised signatory, the cheques were drawn to himself and handwritten by him. There was also a dissimilarity in the manner in which the proceeds of the stolen moneys had been used. The earlier frauds had occurred in 1983 and 1984; the later ones in 1999 to 2002. There was evidence of the appellant's reputation and good conduct in the intervening period.
Barr J accepted (at [33]) that if a person is proved to have stolen money from one employer 37 times over a year, misleading other employees by his lies, he might be understood to have a tendency to cheat and defraud his employer and said that, no doubt, a person in whom such a tendency is established might be expected to retain that tendency for some time "especially if he continues to occupy a similar position ... and has similar duties". His Honour also noted that people do reform and considered that the fact that there was no dishonest act asserted between 1984 and 1999, coupled with the fact that the appellant had pleaded guilty and returned all the money stolen from the employer in 1983/4, "might have thrown doubt on the continuation of his tendency for a period as long as fifteen years".
At [35], his Honour said that there was no logical connection between the events of 1983/4 and the later events; and that the only way in which the jury could have used tendency evidence was to reason that he was a cheat and a fraud and therefore more likely to have cheated and defrauded his later employer. At [36], Barr J noted that the jury could only so reason if the appellant had retained such tendency as was demonstrated by the earlier events and that critical to that question was the passage of fifteen years without asserted blemish. His Honour noted that the trial judge had failed to refer to the argument by Counsel for the accused that this affected the probative value of the evidence and that the failure to refer to this argument and to the passage of time suggested that those matters were overlooked.
As to the balancing of probative value against prejudicial effect, Barr J noted at [49] that the difficulty about the evidence was the risk to which it gave rise that the jury would be overwhelmed by the knowledge that the appellant had been convicted of a series of frauds on a previous employer and would refuse to contemplate the appellant's defence to the similar charges before them. His Honour said at [50]:
It seems to me that there was a real danger that the jury's recognition of the appellant's prior guilt was likely to divert them from a proper consideration of the evidence as bearing on the question of his intent in the charges before them. The difficulty of obviating that risk had to be taken into account in assessing the likely prejudicial effect of the evidence.
Ultimately, his Honour concluded at [51] that the probative value of the evidence was bound to be heavily qualified and weighed that against the serious risk of prejudice and the difficulty of removing it by direction to the jury. His Honour considered that it was not open to the trial judge to conclude that the probative value of the evidence substantially outweighed any prejudicial effect on the appellant and that the evidence ought not to have been admitted.
In the present case, there was a reasonable similarity in the circumstances of the respective acts in that they took place in the family home, when the complainants were in bed (either at night or in the morning) and the acts involved touching and feeling the complainants' breasts and/or genital area. Certainly, there were difference as between the particular sexual acts, to which I will refer shortly, but the conduct as a whole had greater similarity than the different acts relied upon in Watkins.
It was not the case, as adverted to in Watkins, that there had been a 15 year period with no asserted misconduct. Rather, it was a case where the gap in time between asserted acts of misconduct was explicable having regard to the relative ages of the complainants and their sequential placement in the appellant's care.
Thus the lack of misconduct in the intervening periods does not (as it did in Watkins) assist the appellant, given the absence of another foster daughter in the relevant age range during much of that 14 year period between the conduct against Jane and that against Kay.

Other authorities

Reliance was also placed by the appellant on R v Fung [2002] NSWCCA 479; 136 A Crim R 95 and TWL v R [2012] NSWCCA 57.
In Fung, Sully J, with whom Beazley JA, as her Honour then was, and RS Hulme J agreed, was unable to see how proof of illicit drug dealings some 4 months after the charged offence had any rational part to play in the drawing of an inference beyond reasonable doubt that the appellant had particular knowledge in connection with an earlier transaction. Relevantly, his Honour emphasised that this was even more the case when the evidence did not suggest in any way whatsoever any connection of the appellant with the later transactions (see at [49]).
In TWL, Macfarlan JA, with whom RA Hulme and Garling JJ agreed, considered that evidence of statements by the appellant in the week leading up to the charged incident (that he only went to the local show to get into fights and that Friday night was fight night), relied upon by the Crown as tendency evidence to suggest a tendency of the appellant to engage in violent behaviour, were not sufficiently proximate to the assault to be probative of the appellant's state of mind at the time of the offence.
As the appellant accepts, those cases do not take the matter any further than the authorities referred to earlier.

R v SK

Reliance was placed by the Crown on the approach in this Court in R v SK. There, Latham J, with whom Giles JA and Rothman J agreed (the latter expressing additional comments as to the distinction between tendency and coincidence evidence), considered that the lapse of time between the alleged assaults on the respective complainants in that case (occurring over a lengthy period between 1980 and 2003) was a powerful factor in reasoning towards the commission of the offences charged. The offences comprised sexual assaults by the complainants' uncle; the sexual activity occurred in the appellant's home during regular family gatherings; and the Crown case was that the appellant relied upon social visits to his home by members of his extended family in order to obtain access to young children. It was alleged that the appellant commenced assaulting each complainant at or about the age of 6 or 7 and ceased assaulting them about the age of 13, once the children reached an age when the appellant could no longer exercise influence over them or they commenced to assert themselves.
At [26], her Honour concluded that "[f]ar from depriving the evidence of its capacity for probative value, the temporal gaps are an integral part of the appellant's underlying pattern of behaviour". So it is in the present case.
The Crown case was, in effect, that the tendency evidence demonstrated a pattern of behaviour on the part of the appellant in relation to young girls in his care, whereby he abused them sequentially while they were in a particular age range and then either lost interest in them or events occurred that caused him to cease his abuse of them. While, in the case of Jane, it might be inferred that the appellant lost interest in her once she reached a particular stage of development; in the case of both Kay and Lisa, there seems to have been an obvious reason for the appellant to have ceased abuse (namely, the notification to DOCS in 2003 - in the case of Kay - notwithstanding that this did not result in further action at the time, and, in the case of Lisa, the witnessing by his wife of the last incident with Lisa and disclosure by Lisa, leading to the 2007 family meeting and subsequent notification by Lisa to DOCS).

Conclusion as to effect, on probative value of the tendency evidence, of temporal gap between the events

As to the tendency evidence tendered in relation to the count involving Kay, in my opinion it was not an invitation to engage in an impermissible process of reasoning for the jury to be asked to conclude that, if the jury were satisfied that the admitted conduct towards Lisa in 2005-2006 established beyond reasonable doubt the tendency claimed by the Crown (a matter of which the trial judge made clear it was for the jury to be satisfied), then it was likely that the appellant had a similar tendency or state of mind a mere 2-3 years' earlier (when the incident of which Kay complained was said to have occurred) and hence that the jury should have the requisite level of satisfaction that Kay's complaint was made truthfully, taking into account for that purpose the other evidence relevant on that issue.
As a matter of commonsense, when considering the import of the admitted conduct towards Lisa, there were at least two contradictory possibilities: that the conduct in 2005/2006 was the commencement of an isolated series of events precipitated by a particular attraction to Lisa (or some other factor) or that the conduct in 2005/2006 was the manifestation of a tendency that the appellant had at an earlier time (on which he may or may not have acted at that earlier time).
If the jury were satisfied beyond reasonable doubt of the conduct against Jane, then that could also reasonably be taken into account in the jury's assessment of whether Kay's complaint was truthful, since it would provide evidence of a tendency (consistent with that evidenced by the conduct against Lisa) on which the appellant had been prepared to act at that earlier stage.
As to the tendency evidence tendered in relation to the counts involving Jane, even accepting that the weight of the much later conduct admitted against Lisa was lessened by the passage of time between those events, the jury also had before it the evidence of conduct against Kay which (if the jury found beyond reasonable doubt was established) would strengthen the conclusion that Jane's complaints of similar conduct were established.
The evidence of subsequent admitted conduct against Lisa was not something that could be dismissed as not having significant probative value. It did not suffer from the deficiencies of the evidence of subsequent sexual activity in Dann; nor was it so removed in a factual or temporal context from the earlier acts as in Watkins, particularly given that in the present case (whichever version of Kay's disclosure in 2003 were to be accepted) it could not be said that there had been no asserted acts of inappropriate sexual misconduct in the intervening period between the conduct against Jane and the conduct against Lisa. The same conclusions follow in relation to the tendency evidence of Kay. In relation to the evidence of Jane as tendency evidence in relation to the count involving Kay, the submission based on the temporal gap was, in effect, conceded to have less force, since this was prior sexual activity albeit not within a confined time period.
Given that the gaps between the respective assaults were explicable if the tendency was, as the Crown contended, one that related to girls of a particular age range, having regard to the sequential placement of the girls into the appellant's care, this was precisely the kind of evidence that in SK the Court accepted could be relevant and of probative value.

Difference in nature of the acts

The second factor that is said by the appellant to have diminished the probative value of the tendency evidence is the difference in the particular acts relied on by the Crown to establish tendency. The appellant accepts that the Hoch test does not apply as a matter of strict exclusion but submits that the less similar the acts the less probative they are as tendency evidence.
The differences to which the appellant points are the age at which the appellant commenced, and/or ceased, to act upon the alleged sexual interest in his foster daughters and the particular behaviour of which complaint was made.
As to the first, namely, the differences in the age of the respective complainants at the time of the alleged offences, Jane's evidence (though inconsistent in parts) was that she was 9 years' old when the alleged offences commenced and that the conduct "eased off'' as she reached puberty, ceasing when she was 14 years' old; whereas the acts against Kay and Lisa did not commence until each was 11 or 12 years' old (by which time, at least in Lisa's case, she had then reached puberty).
In the case of Kay, her recollection was that at the time of the first (uncharged) incident, the conduct felt "familiar" to her, which leaves open the possibility that the time of commencement of the abuse may have been at a younger age. In the case of Jane, if the appellant's criticism of the reliability of Jane's memory as to her age, at the time the alleged offences commenced has force, then she would have been much closer in age to the other complainants when the abuse commenced. There may not, therefore, be as marked a difference in the age of the complainants at the time of the alleged conduct as the appellant suggests.
In any event, in the case of each of the complainants, the alleged (or in the case of Lisa, admitted) conduct either commenced or continued while she was around 11-12 years' old. By 11-12 years' old, each was at, or approaching, puberty. This is not a case where there is such a dissimilarity in the ages of the complainants, at the time the conduct commenced, as to deprive the evidence of significant probative value. Similarly, little can be drawn from the ages at which the conduct ceased, since there were commonsense explanations for the conduct against Kay and Lisa to have ceased when it did (and perhaps at a time earlier than might otherwise have been the case), there being in each case an incident that drew attention within the family to untoward conduct on the part of the appellant (and, in the case of Kay, a formal notification to DOCS), that might well be expected to have had an effect on curbing the appellant's behaviour in relation to each of the complainants at the respective times in question.
As to the second matter raised, namely the type of behaviour alleged, the appellant raises three points of difference.
Apart from the difference in the ages of the complainants at the time of the alleged offences, to which I have referred above, the appellant points to the absence of complaint as to grooming behaviour towards Lisa or Kay, unlike the "tickle fights" in relation to Jane. However, all three of the complainants at some point in their evidence made reference to tickling behaviour in connection with the abuse. In Lisa's police interview, she referred to the appellant tickling her, saying that "...he'd just tickle me. He'd just start tickling me or something and then he'd just put his hands under my shirt and just touch my breasts". Kay's evidence of the second (uncharged) incident was that it also commenced by tickling on the part of the appellant (albeit tickling of her back at her request). Therefore, tickling was an aspect about the appellant's conduct towards each of the complainants and the absence of evidence of "tickle fights" as grooming behaviour in advance of the commencement of the later abuse is not a significant difference. The appellant conceded that he had tickled children in the family, though denying that he had done so inappropriately.
Further, the appellant points to the fact that Lisa and Kay (unlike Jane) did not claim to have been subjected to digital penetration and to the difference between the appellant's admitted conduct in relation to Lisa (touching and placing his mouth on Lisa's breasts) whereas Kay denied that he had ever touched her breasts.
There were certainly differences in the particular acts of which the respective complainants gave evidence, the most marked of which was the lack of digital penetration of two of the three complainants and the fact that the appellant was not said to have placed his mouth on the breast (or any other part of the body) of two of the three complainants. What is common to all of the counts is that there was inappropriate touching of some kind of the body, in Jane's case her breasts and her vagina; in Kay's case her vagina, but not breasts; and in Lisa's case her breasts and vagina. (It should be noted that the appellant denied touching Lisa's vagina but in the agreed facts the appellant admitted to having placed his hand on top of her vagina and having kept his hand on her "pull-ups" for some time before removing it).
Furthermore, other than the unproven count involving Jane, each of the acts took place in a bed (and, in all but the first uncharged incident involving Kay, in the child's own bed); most of the incidents happened at night; and both Kay and Lisa referred to incidents occurring on nights when the appellant came to their bedroom after returning from Lions Club meetings.
The differences in question were clearly matters to be taken into account in the assessment of the complainants' evidence but in my opinion they did not significantly reduce the probative value of the tendency evidence in light of the overwhelming similarity in the circumstances in which the acts occurred.
In R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75, Beazley JA, as her Honour then was (with whom Buddin J and Barr AJ agreed) said (at [79]) "[t]he authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour", there contrasting the position with coincidence evidence. In that case, the evidence sought to be relied upon, which her Honour accepted was capable of rationally affecting the assessment of the probability that the accused had engaged in the conduct alleged and had a sexual interest in so doing, was of conduct towards students who were boarders and who were vulnerable because they were homesick or did not fit in with the normal pattern of school life in various ways. Her Honour considered that the evidence had significant probative value in the determination of the question whether the individual allegations should be accepted.
Similarly, in the present case, the tendency evidence (if accepted by the jury) would demonstrate that the appellant had a tendency sexually to abuse young girls who were vulnerable in the sense that they had been removed from troubled households and placed in his and his wife's foster care. The differences in the particular acts complained of by the respective complainants do not diminish the significant probative value of their evidence.

Contamination/concoction

In relation to the admission of Lisa's evidence as tendency evidence to prove the conduct complained of by Kay, it is further submitted by the appellant that the probative value of that evidence was diminished because there was a real chance of concoction or contamination in relation to Kay's evidence, as a result of her communications and relationship with Lisa (a matter also relied upon in relation to the unreasonable verdict ground of appeal in relation to count 7).
The appellant points to the following: that Kay and Lisa shared the same house from 1994 to 2008, which included a period of at least 2 years after the disclosure by Lisa; that Kay admitted having had conversations with Lisa at the time of the incident involving Lisa in 2007, when Kay said to Lisa, in effect, that she had also been abused and when Lisa (either at the same time or in a later conversation that day) disclosed some detail of the abuse that had occurred to her (namely, that the appellant "put his mouth on my boob and asked me if I liked it"); and that Kay also admitted having had a later conversation with Lisa about the conduct (although Kay said that they had not discussed what had happened but just that Lisa was upset about it). This is said not only to demonstrate the relationship between the complainants and opportunity for contamination or concoction of their evidence but also to provide evidence of the making of actual disclosures.

What appears to be suggested was that on the chronology that the tickle fights started about a year after she had arrived and the first count was after that then the first count could not have occurred when she was under 10. However, as the trial judge noted, Jane's evidence started with the statement that she was "about" 9 when the tickle fights were being played; it was put to her that they started "when [she] was nine, at least nine" (which was not what she had said; though she agreed with that proposition). It was later put to her that she had said the tickle fights started about a year later but she had said they started "within a year", which is not the same proposition.
Jane appears to have been clearly confused as to whether she was being asked to admit to what she had said earlier in her evidence or as to what had occurred:
Didn't you just say you suggested that to me? You're confusing - you're completely confusing me. You're not going to be able to get out of me, because I'm not sure what you're asking me.
The line of questioning continued and led to what seems to have been complete confusion on Jane's part as to what she was being asked and what she was told she had agreed to or accepted earlier in the evidence.
Jane's evidence was that the conduct occurred when her night light was still on (the night light being while she was 9-10 or 11, Jane saying that it had ceased at 11). The appellant and his wife gave evidence that she was being trained not to have a night light on over an 18 month period between the ages of 9 and 11.
The appellant did not recall ever being involved in tickle fights with Jane. He said:
Not that I can recall, no. I'd say never in tickle fights. I used to - we used - certainly not in the first 18 months. She was too tender, if you like, for that. She was too agitated. We were not hands off, but very careful, very wary about her actions at that stage so no I wouldn't have tickled her. I have tickled kids on occasions but inappropriately, no.
He said in his examination in chief that he did not think he would ever have gone into Jane's bedroom in the first 18 months or 2 years that Jane was with the family because he said Jane was "too jumpy for [him] to do much". On cross-examination, when it was put to him that his wife had said there may have been occasions when her husband checked on Jane during the night, although it was usually she who did so, the appellant said "I've never said I wasn't ever in [Jane's room]. I just cannot remember doing it, and I would have no reason to be in her room".
What the appellant there emphasised was that he had not engaged in tickle fights with Jane in the first 18 months to 2 years ("certainly not in the first 18 months"). It reads on paper as leaving open the possibility that he had engaged in tickle fights with Jane but at a later time than she had recalled. Again, in cross-examination what he said was that he could not remember having played tickle fights with her.
There is a contrast between the appellant's inability to recall tickle fights with Jane and his adamant denial of: touching or dealing with her in a sexual way, the allegations the subject of the charged counts, ever having taken Jane surf skiing with him (the conduct the subject of count 6) and his description in cross-examination of certain of Jane's allegations as "hallucinatory".
In all, the question whether the tickle fights took place and at what age depended on whose version of events (that of Jane and that of the appellant) was to be preferred. In circumstances where the appellant's evidence was somewhat equivocal on the topic (as compared to other of his evidence) and there was a common theme across the complainants' evidence of "tickling", it cannot be said that there was not evidence reasonably open to the jury to conclude that Jane should be believed on this aspect of the matter.
As to the age at which the tickle fights, and the subsequent offences, took place, the appellant's submission was that Jane had no independent recollection (given the inconsistencies in her evidence on that point and the fact that she had sought to have regard to her statements to assist her recollection).
There is no doubt, from a review of the transcript, that Jane was confused in the course of cross-examination on this aspect of the matter. Where she was consistent was that the abuse the subject of count 1 had occurred when she was about or roughly 9. The process of recollection by which she arrived at that age was not made clear - it was tested in cross-examination by reference to the time that had elapsed between her arrival and the start of the tickle fights; the duration of those fights; and whether there was an overlap between the tickle fights and the abuse. It was a matter for the jury to assess the credibility of Jane's evidence on that point and the reliability of her recollection, having regard to the matters to which their attention was drawn by Counsel for the appellant and having regard to their assessment of the credibility of the appellant in his assertion (among other things) that he had not entered Jane's bedroom at all in the first 18 months of her stay in the house.
It was reasonably open to the jury, having regard to all of the evidence, to accept Jane's evidence (confused as she was in the course of cross-examination) that the tickle fights commenced within months of her arrival and that the abuse started no later than a year after her arrival when she was about 9. On that basis it was reasonably open to the jury to be satisfied of the age element essential to counts 1-3.

Conduct the subject of the alleged offences

Apart from the inconsistency as to Jane's age at the time of the alleged offences, the appellant points to inconsistencies in relation to particular aspects of Jane's evidence in relation to each of counts 1-3.
In relation to first count, the appellant points to the fact that Jane gave evidence in chief as to the appellant rubbing his penis against the bed as he was touching her but, when asked to describe the incident in cross-examination, made no mention of this and could not exactly describe the position of the appellant at the time. I have already referred to the confusion that attended the commencement of Jane's cross-examination. There seems to have been some apparent defensiveness on the part of Jane in her answers to later questions. Insofar as Jane did not refer to the fondling when asked to recall again, in cross-examination, the first incident, the Crown points out that Jane's 2010 police statement had also included reference to the appellant rubbing his penis against the bed.
Little weight would in my view be attached to the fact that, under the stress of cross-examination, Jane did not refer to that aspect of the incident.
In relation to the second count, the appellant similarly points to the fact that, in cross-examination, Jane did not refer to the appellant fondling himself during the encounter. It is also noted that Jane agreed that her initial police statement did not refer to the appellant touching her breasts, fondling himself during the incident, and panting or grunting. The appellant points to contradictory answers on this aspect and as to which of her police statement or her evidence in court was the more accurate.
As I read the transcript, and bearing in mind the natural limitations of a review of evidence by reference to the transcript alone, Jane's evidence in cross-examination was characterised by confusion as to the questions asked of her and defensiveness on her part. The jury was able to weigh the inconsistencies to which the appellant points and it was reasonably open to the jury to conclude that not much weight should be drawn from this other than that Jane was an obviously stressed witness. That is the conclusion I would draw from the transcript.
In relation to the third count, the appellant points to inconsistent evidence as to whether the appellant was standing or kneeling while digitally penetrating her and fondling his penis. That might well be explicable by the fact that Jane was giving evidence as to what occurred when she was young and when her perception of the position of the appellant may have been influenced by his height relative to the bed.
The appellant said that it was physically impossible for him to have done what Jane said he did. One might well think that little weight could be placed on that protestation since the appellant also maintained at one point in his cross-examination that it was impossible for him to have lifted and moved Lisa as he had earlier admitted he had done in respect of count 3 of the charges to which he pleaded guilty. Again, this is a matter on which it was reasonably open to the jury to accept Jane's account of events.

Counts 4 and 5

The issue as to the age element of these alleged offences does not arise in relation to these counts since Jane's own evidence was that the appellant had ceased to abuse her by the time she reached puberty (at 14), although the appellant notes that there were inconsistencies between Jane's evidence and her police statement as to the age at which the incident giving rise to the fourth and fifth counts occurred that it is submitted indicated that she did not have any independent recollection of that incident.
In relation to the fourth and fifth counts, the appellant places weight on the fact that, in cross-examination, after Jane was asked questions about the third alleged incident, and was then asked whether there were any other incidents, Jane did not make reference to the incident giving rise to the fourth and fifth counts but instead said that "These things occurred ...previously to that, three or four times a week". Jane then accepted the proposition put to her by the cross-examiner that the specific incidents that she had just described (i.e., the first three incidents) were the only specific ones that she could remember.
The appellant submits that it can be concluded that Jane did not have any independent recollection of the incident giving rise to the fourth and fifth counts. The observations already made as to Jane's evidence are equally applicable here. It was reasonably open to the jury to conclude that the failure of Jane in cross-examination to recount the incident the subject of these counts was not indicative of unreliability of her evidence in chief in relation to that incident. That is the conclusion I would draw from my review of the course of the questioning and answers recorded in the transcript. Jane's recollection that the night-light was not on during this incident is consistent with the incident occurring at the age as charged.

Matters relating to each of counts 1-5

The appellant submits that the jury's failure to reach a verdict on the sixth count can be taken into account as something that adversely affects Jane's credit, noting that Jane's friend had given contradictory evidence to that of Jane and that Jane's evidence at trial as to this incident varied from the account she had given earlier. I have not referred in detail to the evidence given by Jane's friend (or Jane's friend's mother), as to the count 6 incident. I have reviewed that evidence and it does not change my opinion that it was reasonably open to the jury to find Jane a credible witness. I am not satisfied that the discharge of the jury on this count is something from which it can be inferred that Jane was not a credible witness in relation to the other counts. There were significant differences in the conduct the subject of this count and the others involving Jane (in particular, that it was said to have occurred on a swimming trip, rather than at night in her bedroom). Hence the conclusions drawn by the jury from the tendency evidence may not have had as much impact in relation to this count.
The appellant also challenged Jane's reliability as a witness by reference to alleged inconsistencies in her evidence as to the making of her disclosures of the appellant's conduct: first as to the alleged disclosure to the appellant's wife when she was about 12 years' old, then to the disclosure to Paul in about 2003; and finally, the disclosure in 2009 to Paul and Mary, including her explanation for the delay in making the disclosures.
First, the appellant submits that the explanation given by Jane for the delay in the making of her complaint was either wrong or fanciful (insofar as Jane had referred to rejection by other families and thought, or said she had been told by DOCS, that this was her last chance to have a family) and points to inconsistent evidence given by Jane as to the attitude of the appellant's wife. However, both the appellant and the appellant's wife gave evidence that Jane was "desperate" to be adopted. The perception by Jane as to the rejection by other families is not inconsistent with the matching process that the appellant and his wife confirmed was undertaken by the relevant placement organisation at the time Jane was in temporary foster care.
Therefore, the fact that Jane's explanation for the delay in complaint was her desperation to be adopted does not raise doubt as to Jane's credibility. Nor does her evidence as to the attitude of the appellant's wife towards her do so, since there was consistency in the evidence of Kay and Lisa, as well as the evidence of what was said in the family meeting by the wife (which I refer to shortly) that supports a conclusion that the appellant's wife was not supportive of complaints about the conduct of her husband and may have had anger management problems and the appellant's wife in her evidence suggested that there were difficulties in managing the respective children.
As to the initial disclosure to Paul, there was uncertainty (as between Paul and Jane) as to when this disclosure occurred, but the accounts given by Paul and Jane were broadly consistent. The appellant points to the difference between Jane's evidence that she said no more than that the appellant and his wife abused her in that house and Paul's evidence that she said she had been touched inappropriately by the appellant. That difference is not in my view material. On Jane's evidence at trial, there was abuse by the appellant's wife at the time of the disclosure. Moreover, reading the transcript of Paul's evidence on paper, it can be seen that Paul was uncomfortable in being given any unpleasant detail of the allegations and his summary recollection of the disclosure is consistent with that.
The appellant also notes that Paul had conceded that the 2003 disclosure did not cause him any undue concern and that he was not concerned about leaving his children alone unsupervised with the appellant. However, Paul's explanation for this was that his daughter was young at the time (she was much younger than the age at which the alleged assaults had occurred) and that it was a complaint by one person. His evidence was that he became concerned once he heard the complaints of Kay and Lisa.
The appellant points to inconsistencies in the versions given by Jane to the police and later in her evidence in court as to her alleged disclosure to the appellant's wife (namely, as to the age she was when the incident occurred; how it started and what happened; and what happened at the end of the incident). The appellant contrasts this with the emphatic denial of the incident by the appellant's wife. Again, it is difficult to place a great deal of weight on inconsistency in the actual circumstances of the disclosure, when Jane's evidence was broadly consistent as to what had happened.
Insofar as the appellant places weight on the emphatic denials of his wife, this suffers from the lack of credibility the appellant's wife has when her evidence is reviewed as a whole. Her evidence was marked by an almost complete inability to recall conversations relating to the events in question, including many which must, on any view of the matter, have been deeply concerning (such as what followed her witnessing the incident with Lisa and the discussion at the family meeting in 2007).
The denial by the appellant's wife and her inability to recall matters recorded in Dr Rewais' contemporaneous notes (such as her angry reaction to the foreshadowed DOCS notification) and the alternative version she gave in relation to the foreshadowed DOCS notification was telling; as was her emphatic refusal to accept that the appellant had committed any of the offences against Lisa to which he had earlier pleaded guilty and which were agreed facts at the trial.
Finally, as to the disclosure by Jane to Mary in 2009, the appellant points to inconsistency in Jane's evidence as to whether Jane had recalled the details of the abuse at that stage or whether the memories had not come back to her until after her first statement to the police. As adverted to earlier, Jane was cross-examined as to matters contained in her 2011 police statement that were not referred to in her earlier police statement - the description of the tickle fights and additional detail as to the second alleged incident (such as the reference to the appellant touching her breasts on that occasion, panting and grunting, and fondling his penis after he had placed his fingers in her vagina). Jane's explanation for the additional information was that memories had come back to her.
The appellant points to Jane's evidence at trial that when she disclosed the abuse to Mary in 2009 she was "clear" about all of the incidents. It is submitted that this is in direct contradiction to her statement that memories had come back to her after the first (January 2010) police statement. However, the fact that additional details were included of the second incident in the later police statement is not inconsistent with Jane having had a memory of the incident in 2009 and later remembering further details of the incident. As to the later remembrance of the tickle fights, it is by no means clear that Jane's evidence about all of the incidents being clear in her mind at 2009 included these, since the tickle fights were not the subject of any charge.
Reference is also made by the appellant to Mary's evidence to the effect that she had a clear recollection of Jane referring to the surf incident (the subject of the unproven count 6). It is submitted that if that was Jane's clearest memory in 2009 then it follows that she must have been even less clear at that point in time on the incidents that ultimately resulted in convictions. However, what Mary was referring to in the relevant passage of her cross-examination, was her recollection that Jane had said she had started to feel that the dreams she had been having were true. In that context, Mary said that Jane had not hesitated on the surf incident but that she had discussed that some of the other ones she had been repressing. None of that is inconsistent with Jane's evidence that they had not discussed in detail the alleged abuse on that occasion. Mary's evidence was that her own memory of that discussion was mainly as to why Jane had not confided in her before. Little can be drawn from this as to the reliability of Jane's memory of those incidents that she did not discuss in detail with Mary in 2009.
Having considered the criticisms made of Jane's evidence as to her age when she was placed in the home and the age at which offences were committed (going to counts 1-3) and the additional matters relied upon for the appellant's submission that Jane's evidence was inherently unreliable and that she lied in her evidence, I am nevertheless of the view that it was reasonably open to the jury to accept that Jane's evidence was credible. The confusion apparent from the transcript on the part of Jane when giving her evidence and the matters to which the appellant has referred do not lead me to conclude that there was no reliable evidence to support a verdict of guilty beyond reasonable doubt as to counts 1-5 in relation to the conduct alleged towards Jane. In my opinion, Jane's confusion was understandable given the line of questioning on issues such as the issue of age. The jury heard her evidence and heard the denials of the appellant on the counts in question. It was reasonably open for them to prefer Jane's evidence to that of the appellant having regard to all of the other evidence before them.

Verdict on count 7 - Kay

The principal basis on which the appellant challenges the verdict on count 7 arises from Kay's evidence that the first two incidents occurred when she was occupying bedroom 2 and that both occurred either when the appellant's wife had been in hospital or shortly after. (Bedroom 5 was the scene of the last incident and had a different layout and furniture from bedroom 2.)
The agreed facts included that the appellant's wife was treated in hospital on a number of occasions, the first being in October 2000. Kay occupied bedroom 2 from 1994 to 1997 and moved to bedroom 5 when Lisa arrived.
The first incident (that Kay placed as being when the appellant's wife was in hospital) was said to have occurred in the appellant and his wife's bed. There is no inconsistency arising at this point from the different bedrooms occupied by Kay because it is clear on her version that the event happened in the appellant's bed. Therefore, all that might be inferred from the hospital records is the possibility that the incident occurred some 3 years earlier than Kay had recalled (which would place the incident at a time when Kay was younger and make the objective seriousness of the incident greater).
Kay placed the second incident as occurring shortly after the first. In 2000, Kay did not occupy the bedroom where she said the second incident occurred. This is relied upon as suggesting contamination of the evidence, because bedroom 2 is where the incidents involving Lisa took place.
Kay's evidence of the last incident (count 7) showed some continuing confusion as to the bedrooms occupied by her at different times - though she was adamant that the last incident was in a different bed. Therefore, it may be that what was revealed by this was no more than an unreliable memory as to the bedroom in which the second (and last) incidents occurred. The appellant submits by reference to the above that reliance on the first two incidents was unreliable.
As to the evidence relating to count 7, it is submitted that of the two competing versions of the incident, Kay's was improbable (both as to the setting for the alleged abuse - a morning when other children were in the house at the time and the door was "probably open" - and as to what is said to have been the "sudden and inexplicable change in the emotional state" of Kay during the incident - a reference to the "joking manner" that Kay said she made the statement "I'll scream").
It is submitted that the appellant's version (that he had chastised her for having a cat in her room; that she put the cat down her pyjama top, he reached for the cat and accidentally touched her breasts; and that she reacted angrily to the intrusion of her privacy and the discipline of the appellant) was the more probable. The appellant recalled that Kay was very upset and had said he had touched her breasts; he remembered that she went to the caravan and said that he was outside working on the car.
As to the incident with Kay, the appellant's wife agreed that Kay had telephoned her at work and that she was angry; she said that it was she, not Kay that had suggested she come home and gave details of what she said and of what she was doing at that time (preparing a meal for 24 children). She said that in the life of the family this was not a particularly big day and that they had had many dramas over kittens and animals being in the bedroom. She also said that there had been a conversation about the incident in the lounge room but she did not recall the exact conversation (other than it being about whether the appellant had a right to put his hand under her shirt to take the kitten out).
As to which of the versions of the incident is inherently more probable, the difficulty for the appellant in arguing that the timing or setting for Kay's account is improbable is that the appellant had engaged in similar (though not identical) conduct towards a child in her bed in the morning while others were in the house when he committed the last of the counts charged against Lisa, to which he pleaded guilty. As to Kay's description of the comment being made "in a joking manner", that could well have been in an attempt to deflect or discourage the appellant without causing a scene. Kay's account of the earlier incidents, in saying that she needed to go to the bathroom, is consistent with such behaviour (and, indeed, Kay went to the bathroom on that occasion). Kay's explanation for making the disclosure to the appellant's wife at that stage (that she had learnt in sex education classes that this behaviour was wrong) has the ring of truth.
Moreover, an incident of the inadvertent kind that the appellant and his wife described (as being a hostile reaction by Kay to a disciplinary incident) seems unlikely, as a matter of commonsense, to have provoked such distress that it would cause the appellant's wife to arrange for Kay to see a counsellor some months later or, indeed, the high level of distress that Dr Rewais observed during that consultation or the pressure he considered she was under to minimise the incident.
It is submitted that the only consistent assertion in the evidence was that there was an incident with a cat and an inadvertent touching of the breasts of Kay at the time. The appellant points to the evidence of what Kay had told Dr Rewais and submits that there is no explanation available other than that what Kay told the psychiatrist (as recalled by the psychiatrist) was the truth. It is noted that this was consistent with the appellant's version. However, Dr Rewais was of the opinion that Kay was under great pressure to minimise the incident and was very distressed, which is not consistent with the explanation given by the appellant and his wife about the incident.
As to the complaint to DOCS, the appellant submits that the version of Kay is unreliable and false, since it is not credible to suggest that a disclosure of a parent deliberately touching a 12 year old's breasts would not invite more investigation from DOCS. Ms McKenzie said that Kay had made it sound like it was an accidental thing and was quite embarrassed; that she did not want to take the matter any further and that her supervisor had said "from what [Kay] had told me that we really didn't have grounds to take it any further". Given the direction Ms McKenzie says she received from her superior, nothing adverse to the probability of Kay's being the correct version of events can be drawn from the fact that DOCS took no action.
Ms McKenzie could not recall mention of a cat but recalled that there was mention that the appellant "had touched her boobs and was surprised that she was developing". At least to the extent that there was no reference to a cat, that is inconsistent with the account given by the appellant and his wife (and, for that matter, Kay) to Dr Rewais. Ms McKenzie also recalled that the appellant's wife had dominated the conversation, lending credence to Kay's evidence that it was the appellant's wife who had told her what to say. This is consistent with Dr Rewais' observation that Kay was under pressure to minimise the incident and was afraid that the appellant would get into trouble over it.
The appellant also points to the different versions of the evidence given by Kay as to what she told the appellant's wife on the day that count 7 occurred: at the voir dire hearing before Finnane DCJ ("Dad had touched me, nothing other than that"; at the trial (her acceptance of the proposition put to her by Counsel that she had told the appellant's wife that he had stuck his hand down her pants and rubbed her vagina and it was not the first time he had done it).
Kay accepted in cross-examination that her memory had improved since she gave her earlier evidence in the voir dire hearing (when cross-examined as to the differences in her evidence as to the content of her disclosure to the appellant's wife). She attributed this to the earlier hearing having been the first time she had "ever started to remember anything" and having had some time since then to think about it. Whether or not Kay told her that the appellant touched her on the vagina or simply that he touched her inappropriately, it is clear that there was a disclosure of touching at the relevant time.

Contamination/concoction

In relation to both grounds 7 and 8, reliance is again placed on the risk of contamination or concoction of the evidence based on the evidence of actual exchanges of information that it is said demonstrate a real risk of concoction or contamination and the familial relationship between Kay and Lisa who lived in the same house during the relevant period and for about two years thereafter. It is submitted that the appellant was in the difficult position of being unable to test conversations that had actually occurred or to respond to complaint evidence which may have been corrupted by a relationship or dealings between complainants before the trial.
It is submitted that there must have been some awareness, around the middle of 2003, that something had happened because of the disruption in the household following the incident involving Kay and therefore there must have been a very real risk that exchanges of information about the appellant and his conduct could have occurred as early as the middle of 2003. Both Kay and Lisa, however, denied the exchange of details of the offences (and this argument does not in any event suggest any risk of contamination of Jane's evidence).

Conclusion as to unreasonable verdict grounds

Having the above in mind, I have reviewed carefully the transcript both of the voir dire hearing (to which reference was made, together with reference to various of the witnesses' earlier police statements in the course of cross-examination at the trial) and of the trial itself. Obviously, the jury had the benefit of having seen and heard the witnesses (SKA at [13]), an advantage of particular relevance having regard to the emphasis the appellant places on inconsistencies in the evidence of Jane and Kay and the manner in which they explained or addressed those inconsistencies in cross-examination.
Jane and Kay's evidence was not, of course, the whole of the evidence before the jury. In particular, the jury had the benefit of the evidence of Mary and Paul (as to the disclosures made by each of Jane and Kay) and of the appellant and his wife.
Evidence of the family meeting in 2007 and of the consultation with Dr Rewais in 2003, for example, is significant in that it shed light on the family circumstances and the manner in which the appellant and his wife responded to the issues that were undoubtedly raised as a result of the incident involving Lisa that the appellant's wife witnessed and the incident that formed the subject of count 7.
The account given by the appellant's wife of the consultations with the psychiatrist and her reaction to the foreshadowed notification of DOCS was contradicted by him, an objective observer with the benefit of contemporaneous file notes. The reaction of the appellant's wife to the foreshadowed notification to DOCS and at the family meeting is consistent with the reaction that the complainants say they received from the appellant's wife when they disclosed the appellant's conduct to her and with Paul's description of her response at the family meeting.
The letters written by the appellant and by his wife to DOCS in 2009 are not consistent with their apparent inability to recall critical matters in the witness box and suggest an ongoing attempt by them in their evidence to minimise the concerns that had arisen at the time of Lisa's disclosure. Even if the family meeting, and the apologies made by the appellant at that meeting, related only to conduct that had occurred in relation to Lisa, the attempt to downplay the seriousness of what had occurred does not reflect well on their credibility.
The dismissal by the appellant's wife of the suggestion that locks be put on the doors, and the appellant's insistence that there was discussion of "procedures" but inability to recall anything about those is not plausible.
The complaints by Jane to Paul were made at a time before she was aware of any complaints by Kay and Lisa. The evidence of the 2007 family meeting is consistent with Kay and Lisa's account and not that of the appellant and his wife.
The evidence of the appellant and his wife, and in particular his attempt to resile from admissions as to his conduct with Lisa and his wife's refusal to acknowledge any sexual connotation to that conduct, did not reflect well on their credit or reliability as witnesses.
Having reviewed the transcript I am not of the opinion that it was not open to the jury to reach the verdicts the jury did on counts 1-5 and count 7. Grounds 7 and 8 are not made out.

Disposition of the present proceedings

For the reasons set out above I would dismiss the appeal.
HARRISON J: I agree with Ward JA.
R A HULME J: I agree with Ward JA.
**********

Case Title:	RH v R
Medium Neutral Citation:	[2014] NSWCCA 71
Hearing Date(s):	12 December 2013
Decision Date:	09 May 2014
Before:	Ward JA at [1]; Harrison J at [316]; RA Hulme J at [317]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law - evidence admitted of prior guilty plea and admissions of aggravated indecent assault in trial of other indecent assault charges where accused pleading not guilty CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law -whether risk of contamination or concoction of evidence between complainants CRIMINAL LAW - appeal and new trial - whether verdict unreasonable or insupportable having regard to evidence
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995
Cases Cited:	BP v R; R v BP [2010] NSWCCA 303 DJV v R [2008] NSWCA 272; (2008) 200 A Crim R 206 Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 Hoch v The Queen [1998] HCA 50;(1988) 165 CLR 292 HML v R [2008] HCA 16; (2008) 235 CLR 334 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 R v AH (1997) 42 NSWLR 702; (1997) 98 A Crim R 71 R v Beserick (1993) 30 NSWLR 510 R v Dann [2000] NSWCCA 185 R v Fung [2002] NSWCCA 479; 136 A Crim R 95 R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 R v SK; SK v R [2011] NSWCCA 292 R v Thomas Douglas Watkins [2005] NSWCCA 164 Simpson v Robinson (1848) 12 QB 511; 116 ER 959 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 TWL v R [2012] NSWCCA 57
Category:	Principal judgment
Parties:	RH (Appellant) Regina (Respondent)
Representation
- Counsel:	Counsel: R Steward (Appellant) H Wilson SC (Respondent)
- Solicitors:	Solicitors: Prime Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/022334
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Lakatos DCJ
- Date of Decision:	19 December 2012
- Court File Number(s):	2010/00022334
Publication Restriction:	Prohibition on publication of any matter identifying or likely to lead to identification of complainants pursuant to s 578A Crimes Act 1900