Rodden v R

[2008] NSWCCA 53

Reported Decision: 182 A Crim R 227

New South Wales

Court of Criminal Appeal

CITATION:	RODDEN v REGINA [2008] NSWCCA 53
HEARING DATE(S):	Tuesday 4 September 2007, Wednesday 5 December 2007
JUDGMENT DATE:	20 March 2008
JUDGMENT OF:	Beazley JA at 1; Hall J at 2; Fullerton J at 138
DECISION:	(a) Appeal upheld. (b) Convictions entered on 13 November 2006 are set aside. (c) Pursuant to s.8(1) of the Criminal Appeal Act 1912, order that there be a new trial.
CATCHWORDS:	CRIMINAL LAW – Evidence – Admissibility – Tendency evidence – Relationship evidence – Inadequacy of directions by trial judge – Substantial miscarriage of justice
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	B v The Queen (1992) 175 CLR 599 BRS v The Queen (1997) 191 CLR 275 Carr v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 DRE v Regina [2006] NSWCCA 280 Eastman v Director of Public Prosecutions (ACT) (2003) 198 ALR 1 Foggin v Lacey (2003) 57 IPR 225 Gipp v The Queen (1998) 194 CLR 106 KBT v The Queen (1997) 191 CLR 417 Libke v The Queen (2007) 235 ALR 517 M v The Queen (1994) 181 CLR 487 Mraz v The Queen (1955) 93 CLR 493 Qualtieri v Regina [2006] NSWCCA 95 Regina v AH (1997) 42 NSWLR 702 Regina v Beserick (1993) 66 A Crim R 419 Regina v Ellis (2003) 58 NSWLR 700 Regina v Hagarty [2004] NSWCCA 89 Regina v Hartley [1941] 1 KB 5 Regina v Vonarx [1999] 3 VR 618 Regina v Wickham (NSWCCA, unreported 17 December 1991) Weiss v The Queen (2005) 224 CLR 300
PARTIES:	Mathew James RODDEN v REGINA
FILE NUMBER(S):	CCA 2006/5132
COUNSEL:	App: C Steirn SC/J Veloskey Crown: J Girdham
SOLICITORS:	App: McMillan Criminal Law Crown: S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/51/0098
LOWER COURT JUDICIAL OFFICER:	Black DCJ
LOWER COURT DATE OF DECISION:	16 March 2007

No 2006/5132

BEAZLEY JA
HALL J
FULLERTON J

THURSDAY 20 MARCH 2008

MATTHEW JAMES RODDEN v REGINA

Judgment

1 BEAZLEY JA: I agree with Hall J.

2 HALL J: The appellant was charged with five counts as follows:-

• Two counts of aggravated sexual intercourse with a child aged between the ages of 10 to 14 years: s.66C(2) of the Crimes Act 1900 (NSW) .

• Two counts of aggravated sexual intercourse with a child aged between the ages of 14 to 17 years: s.66C(4) of the Crimes Act 1900 (NSW) .

• One count of aggravated indecent assault with a child aged under 16 years: s.61M(1) of the Crimes Act 1900 (NSW) .

Primary facts

3 The appellant is presently aged 40 years (date of birth, 30 May 1967). He was arrested and charged on 21 September 2005.

4 The trial in respect of the five counts proceeded between 6 and 13 November 2006 inclusive before the Lismore District Court. On 16 March 2007, the appellant was sentenced to an aggregate term of eight years with a five year non-parole period. There is no application for leave to appeal against sentence.

5 The complainant was 15 years of age at the time of trial.

6 Her mother had formed a defacto relationship with the appellant and their cohabitation commenced in 1998 and continued until the appellant and the complainant’s mother separated in May 2005.

7 After the relationship ended, there was an exchange of text messages between the appellant and the complainant on about 13 or 14 August 2005. At that time, the complainant’s mother approached the complainant, on which occasion she told her of alleged past sexual interference by the appellant. The police were immediately alerted and they conducted an interview with the complainant on 17 August 2005. The audio tape of this interview was played to the jury as part of her evidence in chief. The remainder of her evidence, in particular, the cross-examination, was given via a CCTV.

8 On 13 September 2005, investigating police obtained authorisation for the use of a listening device. On 15 September 2005, a listening device was installed close to a telephone handset and operated so as to record a conversation between the complainant and the appellant. The conversation on that date and 15 September 2005 have been referred to as the pre-text conversations. Police arranged on those occasions for the complainant to speak to the appellant about the allegations she was making and the fact that she had been attending counselling.

9 Following the recorded conversations, the appellant was arrested and charged on 21 September 2005.

The counts in the indictment

10 The description of the factual circumstances in relation to each of the counts was accurately set out in the Crown’s written submissions and from which I reproduce below paragraphs [4] to [7] inclusive:-

“4. Count one (s.66C(2) Crimes Act 1900), the moving house incident; Part A paras 5-6
Between 12 April 2003 and 15 April 2003 when the complainant and her family were staying the night at a friend’s house … The complainant slept on a couch in the lounge room and the appellant and his wife, the complainant’s mother, slept on an inflatable mattress next to the couch. The complainant testified that the appellant pulled her down from the couch in the middle of the night and digitally penetrated her vagina. She could not remember for how long the penetration lasted.
5. Count two (s.66C(2) Crimes Act 1900), the iToy incident; Part 1 paras 7- 13
Between 31 May 2004 and 21 June 2004 at the home in which the complainant lived with her family … The complainant was in her bedroom with her sister …; the appellant entered the room and whilst [the complainant’s sister] was playing the game and had her back turned, the accused digitally penetrated the complainant’s vagina. The complainant estimated that this penetration lasted fro two minutes.
6. Count three (s.66C(4) Crimes Act 1900); the Kayak incident; Part 1 paras 14-18
Between 29 January 2005 and 13 February 2005 in a river that ran through the back of the complainants home … The appellant was swimming with the appellant and her school friend. After swimming for some time she became tired – as she rested against the appellant he digitally penetrated her vagina. She was unsure how long the penetration lasted.
7. Counts four (s.66C(2) Crimes Act 1900) and five (s.61M(1) Crimes Act 1900) arose from the same episode; the chess incident; see Part 1 paras 19-22
Between 1 January 2005 and 5 May 2005 at the complainant’s family home. The complainant was playing a game of chess with the appellant whilst her mother and siblings were shopping. He then slid his hands inside the complainant’s pants and digitally penetrated her vagina. The complainant tried to make the appellant stop and they ended up wrestling and rolling on the floor. The appellant pinned the complainant to the floor before flipping her onto his body and rubbing her up and down on his crotch.”

The pretext telephone conversations

11 The transcripts of the listening device-recorded conversations between the complainant and the appellant on 14 and 15 September 2005 were respectively marked Exhibits A and B in the proceedings.

12 By reason of the matters argued on appeal, it is only necessary here to reproduce the terms of the transcript of the conversation held on 14 September 2005:-

“Matthew RODDEN: Hello.
COMPLAINANT: Hey Dad, it’s me … You there?
RODDEN: Yea. Mmm
COMPLAINANT: Happy Fathers Day
RODDEN: Thank you.
COMPLAINANT: Did you have a good day?
RODDEN: Yes
COMPLAINANT: That’s good. Mum’s been putting me into counselling lately.
RODDEN: Ok. I’m sorry.
COMPLAINANT: Mmm and Um I just wanted to know why you did it?
RODDEN: I don’t really know darl. I’ve actually been seeing someone too. I think I just, I dunno, I just, I think I just loved you too much in some ways. I didn’t mean it
COMPLAINANT: Yep.
RODDEN: I didn’t mean to hurt ya.
COMPLAINANT: Yep.
RODDEN: How’d you get this number?
COMPLAINANT: Mum got it off someone the other day.
RODDEN: Ok
COMPLAINANT: You there?
RODDEN: Yea. Yep.
COMPLAINANT: So, the counsellor was talking to me and she wanted to know everything and everyone knows now and, and I’ve started to feel really upset lately.
RODDEN: Yep.
COMPLAINANT: So that’s why I’ve called you now.
RODDEN: Yep.
COMPLAINANT: Because you know how you said it’s like a disease that eats you out.
RODDEN: Yep.
COMPLAINANT: That’s how I feel now.
RODDEN: Ok.
COMPLAINANT: And I get really upset.
RODDEN: Yep.
COMPLAINANT: And I know that you’re upset right now. You there?
RODDEN: Yea.
COMPLAINANT: So what are you dong now?
RODDEN: Umm. Nothing really.
COMPLAINANT: Same.
RODDEN: Yep.
COMPLAINANT: What’s that?
RODDEN: Just the wind.
COMPLAINANT: Oh right. So how are you, been?
RODDEN: Alright.
COMPLAINANT: So …
RODDEN: Considering
COMPLAINANT: Hey?
RODDEN: Alright considering
COMPLAINANT: Considering what?
RODDEN: Oh Just, I dunno
COMPLAINANT: Oh right, I think … misses you.
RODDEN: … she say …
COMPLAINANT: Yea. She’s getting bigger.
RODDEN: Yep.
COMPLAINANT: You sound. Where are you? Hello.
RODDEN: Yes.
COMPLAINANT: God. It’s just really hard to hear you.
RODDEN: Yea
COMPLAINANT: So anyway, umm I’ve been thinking lately about what happened.
RODDEN: Yes.
COMPLAINANT: And like you did it with people in the room. Like when we were playing I-toy.
RODDEN: I dunno … I don’t understand mate.
COMPLAINANT: Remember when …
RODDEN: Nuh.
COMPLAINANT: … was in the room.
RODDEN: Can you ring me later? I’ve just got, I’ve just got a, someone here at the moment.
COMPLAINANT: A what?
RODDEN: I’ve got someone here at the moment.
COMPLAINANT: Who is it?
RODDEN: Me boss.
COMPLAINANT: Ohh. What time can I call you?
RODDEN: Um. Tonight.
COMPLAINANT: What time?
RODDEN: Anytime tonight after sevenish.
COMPLAINANT: Seven.
RODDEN: Yep.
COMPLAINANT: Ok.
RODDEN: Alright.
COMPLAINANT: Love you. Bye.
RODDEN: Alright darl.”

The grounds of appeal

13 There were only two grounds of appeal. Both grounds raised issues concerning the admission into evidence of the telephone conversations in Exhibits A and B. They were as follows:-

“1. The learned trial judge erred in admitting the evidence of the telephone conversations between the complainant and the appellant as evidence of ‘guilty passion’.
Further or in the alternative,
2. The learned trial judge failed to direct the jury in relation to the evidence of the appellant’s ‘guilty passion’ for the complaint:-
(a) at the time the evidence was adduced, and
(b) when summing up to the jury.”

Ground 1: Admission of the pre-text telephone conversations

14 The matters raised in relation to Ground 1 are best considered in context. I will, accordingly, address the admission of the evidence concerning the pretext conversations in light of the general conduct of the trial.

15 For the purposes of this appeal, a copy of the ERISP transcript based on the interview with the complainant on 17 August 2005 was made available. As stated earlier, the tape from which the transcript was taken was played to the jury.

16 The complainant, in giving evidence at the trial by CCTV, stated that the answers provided to the investigating officer, Detective Scott, were truthful. The transcript of the interview was then played to the jury and the complainant was able to hear the recording whilst it was played.

17 The complainant provided details in the course of the interview held on 17 August 2005 of the family members at the material times. She had a younger sister and a brother who was also younger then herself. They all lived in the same residence with the appellant and their mother.

18 The recorded telephone conversations of 14 and 15 September 2005, were also played to the Court and again the complainant was able to hear the recording. The complainant then was cross-examined at some length on 8 November 2006.

(a) The ERISP – relationship evidence

19 In the ERISP, question 410, the complainant was asked about each of the occasions on which she claimed to have been sexually assaulted by the appellant. Question 410 and the answer were in the following terms:-

“Q410 Well, you’ve told me about this one time that you remember happening. How many times do you think this has happened over the time that you (sic) know Matthew, you’ve known Matthew?
A. Mmm. Millions.”

20 Later in the interview, she was asked:-

“Q631 Okay. And how many times do you think this, this has happened where you’ve watched a movie and that your Dad has come in?
A. Hundreds
Q632 Okay. And when he’s come in, you said that he’s touched you while you’re under the blankets.
A. Yeah.”

(b) The defence case on the reliability of the complainant

21 The complainant was cross-examined concerning the general evidence of sexual misconduct in which she confirmed that the appellant had assaulted her “on millions of occasions”. The complainant confirmed that that had been the case. She was then asked:-

“Q That was true it happened all the time?
A. Yes.
Q. I think you also said that it happened lots of times when talking about the type of things that you say he was doing to you?
A. Yes.
Q. And it’s also the case that on your evidence you say that it was happening lots of times what you were suffering when your sister was in the room he was coming into the bedroom when you and your sister slept and he was touching you lots of times whilst your Mum was away at work in that room when your sister was in there?
A. Yes.”

22 On the basis of the evidence in chief and the cross-examination, the jury were addressed by counsel appearing for the appellant in relation to a number of aspects including:-

• Delay in complaint.

• The suggested unlikelihood that sexual assault would occur whilst others were present.

• The absence of any threat that could have dissuaded the complainant from reporting any misconduct.

• The absence of any circumstances which would have prevented her from reporting the offences.

• The unlikelihood that the incident involved in Count 4 could have occurred in circumstances where the complainant alleged the appellant forcibly took hold of her without inflicting some form of injury upon her.

• The failure by the complainant to request the appellant to stop the assaults alleged in the particular offences charges.

23 The complainant also gave evidence that she had a good relationship with her mother and could talk to her. However, she did not report the sexual offences or misconduct because, although she said she did not doubt that her mother would believe her, she did not do so for the reasons that her mother loved the appellant. The complainant also, in the course of the ERISP, provided the explanation of not having reported the appellant’s alleged conduct “… ‘cause I was ashamed of it” (Q.547).

(c) Evidence in the defence case

24 The accused gave evidence in which he denied the specific offences and denied the general evidence as to having sexually assaulted the complainant on numerous occasions. He also provided an explanation for his statements as recorded in the conversation on 14 September 2005 to which I will refer again below. He called supporting evidence from two neighbours whose home the appellant frequented with the complainant’s family and at which the complainant alleged sexual misconduct by the appellant towards her occurred.

25 Mr Stephen John Welch was called to give evidence in support of the appellant’s case. He said that as at the date of the trial he had known the appellant for four and a half years and that they were close friends. He stated that he recalled an occasion when the appellant, the complainant’s mother, the complainant and her sister had stayed the night at his and his partner’s house. Mr Welch stated that he had consumed “probably eight, nine stubbies maybe” of full strength beer over a period of four hours, but that his judgment that night was not impaired and that he had a clear recollection of the events of that night. He stated that the appellant had drunk “quite a few, a lot more than I had” and was “falling down drunk, probably totally inebriated…”, and that later in the night he “passed-out”.

26 He stated that the sleeping arrangements for that night had involved the placement of an inflatable mattress on the living room floor for the appellant and the complainant’s mother to sleep on, and that the complainant slept on the lounge and her sister at the foot of the mattress. He stated that it was a double-size mattress and described the living room as a small room, so that the mattress was rubbing up against the couch. He stated in relation to the size of the mattress that if one person were to move, the other person on the mattress would feel it. Mr Welch stated that he was the one who turned off the light in the living room that night, and that at the time of switching off the light, he observed that the complainant’s sister was sleeping at the foot of the mattress, that the complainant was on the lounge under a doona and the appellant and the complainant’s mother were on the mattress on the floor. He stated that the complainant’s mother was on the side of the mattress closest to the lounge that the complainant slept on. In cross-examination, Mr Welch stated that he could not recall the date on which these events occurred. He conceded that after turning out the light and observing that the complainant’s mother was on the side of the mattress closest to the lounge, he did not know what happened after that.

27 Ms June Alison Archer also gave evidence in the case for the defence. She was in a relationship with Steve Welch and she had known the appellant for four years. She recalled the occasion on which the appellant, the complainant’s mother, the complainant and others had stayed the night at her and her partner’s house. She gave evidence that confirmed that the sleeping arrangements had been as stated by Mr Welch. She stated that she observed the appellant to be drunk that night and that “he passed out”.

(d) The question as to the admissibility of the pretext conversations

28 The Crown, prior to trial, served a notice of tendency evidence pursuant to s.97 of the Evidence Act 1995. The notice was dated 27 October 2006. It provided notice that the prosecution intended to adduce evidence of “tendency” pursuant to the last-mentioned provision. The notice advised that the appellant was the person whose “tendency” was the subject of the evidence sought to be adduced and it was particularised as “… the tendency of the accused to view (the complainant) as a sex object (that is, his ‘guilty passion’)”. The notice then provided details as to the evidence that would be relied upon.

29 At trial, counsel then appearing for the appellant (who did not appear on the hearing of the present appeal) following a hearing on the voir dire, submitted that the transcript of the pre-text telephone conversations held on 14 and 15 September 2005 were not admissible on the basis tendered, that is, that it was not admissible as tendency evidence under s.97 of the Evidence Act 1995 (NSW), having regard to the provisions of s.101(2) of the Evidence Act. In particular, it was submitted that, given the terms of the recorded conversation, it could not be said that the probative value of the evidence substantially outweighed any prejudicial effect the transcripts may have on the accused. The trial judge, however, ruled that the transcripts were admissible and, as noted earlier, they became Exhibits A and B in the proceedings.

30 In arguing against their admissibility on this basis, counsel contended that the imprecise nature of the question put to the appellant which employed the word “it” without elaboration meant that the appellant’s responses were open to more than one interpretation. In particular, when the complainant asked the appellant, “Mmm and um I just wanted to know why you did it?”, the recorded answer of the appellant as earlier set out in this judgment (paragraph [12]) :-

“I don’t really known darl. I’ve actually been seeing someone too. I think I just, I dunno, I just, I think I just loved you too much in some way. I didn’t mean it.
… I didn’t mean to hurt ya.”

31 Counsel for the appellant stated that the word “it”, on his instructions, referred to an entirely different subject matter, namely, to the breakdown of the family relationship.

32 The accused, when called to give evidence at the trial on 9 November 2006, gave evidence as follows:-

“Q. When you heard her ask you ‘I just want to know why you did it’, what did you think she was referring to?
A. The – the way the break-up when – when me and [the complainant’s mother] broke up at the end, I thought she was referring to the extent of how bad it got and how upset everyone was and it was – how the broke-up (sic) – how the break-up was.
Q. Is there any particular reason why you thought [the complainant] was referring – [the complainant] meant the relationship break-up when she asked you about it?
A. When [the complainant] rang me, and that phone call come though and she referred to that, I took it as [the complainant] took the relationship really bad like, the break-up really bad, she’d – it’d obviously – eight years with someone you’d be pretty distraught when you lose your father.
Q. What did you mean in your response where you said ‘I guess I loved you too much in some ways’, what did that mean?
A I should’ve left that relationship months before the end of it, I should have left the family unit at least two months before.”

33 During the course of the submissions of counsel on the admissibility of Exhibits A and B, it appears that the trial judge had taken the view that the abovementioned answers in Exhibit A could be tendered as admissions. The Crown Prosecutor, however, expressly stated that he was not tendering the telephone pre-text material on that basis. The trial judge is recorded at one point as saying “Yes, well, then why aren’t you putting it forwards as an admission, that’s what troubles me?”.

34 The Crown Prosecutor is recorded as saying, “I don’t think it goes that far, your Honour”.

35 There was a further exchange in which the Crown Prosecutor at first said he was happy to press it as an admission. The trial judge interrupted him and ultimately Exhibits A and B were tendered by the Crown on the stated basis that they constituted tendency evidence in that they displayed sexual interest by the appellant in the complainant or what was termed “sexual passion”. As the Crown in the Crown Reply to the Appellant’s Additional Submissions, stated at [10], the appellant’s response was not capable of establishing any particular count on the indictment. Accordingly, the purpose of the tender was as evidence capable of supporting the inference that the accused had revealed that he had a tendency – being a guilty passion – a sexual desire or feeling for the complainant.

36 Later in the course of the trial, counsel for the appellant argued that the evidence contained in Exhibits A and B having been admitted, and the accused having given his evidence which established that there was an alternative and innocent explanation for the appellant’s responses recorded in Exhibit A, the jury should have been discharged. The trial judge refused to discharge the jury. He gave short reasons in that respect. In his judgment on the application for a discharge of the jury he stated:-

“… I do not accept that I should withdraw it from the jury, but, of course, the jury will be directed as to how to approach questions of inference which is, after all, what these calls are all about. They will be given appropriate directions about the burden of proof.”

37 I have considered the submissions made on behalf of the appellant and the Crown based, in particular, upon the terms of s.97 and s.101(2) of the Evidence Act and the dicta of Spigelman CJ at Regina v Ellis (2003) 58 NSWLR 700. Depending upon how the questions and answers of the appellant as recorded in Exhibit A are interpreted, the evidence potentially had probative value as tendency evidence. Such value would, in my opinion, substantially outweigh any prejudicial effect it could have upon the appellant.

38 On the question of interpretation of the particular question put by the complainant and the appellant’s response, I have given specific consideration to the appellant’s explanation in evidence as to how he interpreted the question “I just wanted to know why you did it”. It is essential to examine both the question put by the complainant in its context and the terms of the response made by the appellant. In that respect, the following matters I consider to be relevant:-

(a) Prior to the complainant’s question to the appellant, she stated that her mother had been putting her into counselling ‘lately’ to which the offender responded “Okay. I’m sorry” .

(b) The complainant’s question reproduced in the preceding paragraph [38] itself by its terms contains the clear imputation that the offender had done something to the complainant and that the complainant was seeking an explanation as to why he had done “it” .

(c) The offender’s response was not to the effect that he had no idea what the complainant was referring to or that he had not done anything to her. His immediate response was that he had no explanation “I don’t really know, darl …” .

(d) The appellant then continued, following his reference to also “seeing someone too …” to offer as an explanation “… I think I just loved you too much in some ways. I didn’t mean it” . In this response, the offender conveys that he understands, not that it was being put to him that he had done something to hurt or, in some way injure the family by reason of the breakdown in the family relationship, but that the question was related to the complainant herself - his response or explanation to the proposition in the complainant’s question being “I just loved you too much …” (emphasis added).

(e) His further response “I didn’t mean it” and “I didn’t mean to hurt ya” confirms the appellant’s understanding, firstly, that the complainant, by her question, was referring to something that the offender had done to her and, secondly, that what he had done had “hurt” her.

39 The Crown, in its written submissions, contended, in my opinion correctly, that, although the appellant did not confess to any offence, his comments in the pre-text telephone calls were clearly capable of giving rise to the inference that he had had a guilty passion towards the complainant. Such evidence, it was submitted, was directly relevant to proof of the offences charged, in that it bolstered the complainant’s credibility insofar as her account was more likely to be true, given what was said to be the appellant’s sexual interest in her: Regina v Hartley [1941] 1 KB 5; Regina v AH (1997) 42 NSWLR 702; Qualtieri v Regina [2006] NSWCCA 95.

40 The appellant’ evidence in relation to the telephone call on 14 September 2005 was, as earlier indicated, that he believed that the complainant was referring to the breakdown of the family relationship. In reference to his statement “I guess I loved you too much in some ways”, the appellant’s evidence was that he said that what he meant was that he should have left the relationship earlier because he could see it deteriorating, but he did not do so because he loved them (the complainant’s family) too much. In relation to his further statement “I didn’t mean it”, the appellant’s evidence was that he was referring to the fact that he had not meant to drag out the end of the relationship for as long as he did and that he had not meant to hurt the children as a result of the break-up. It is not to be overlooked that the evidence established that it was in fact the complainant’s mother who left the appellant by leaving the house where they had formerly resided.

41 The appellant’s evidence also was that the reference by the complainant to seeing a counsellor, he took to mean that she was seeing a counsellor in relation to the break-up.

42 I have, as earlier indicated, had regard to the appellant’s evidence in determining what probative value could attach to the abovementioned pre-text telephone conversation, and in that respect, the extent to which it could be said to be open to any interpretation other than that as tendency evidence referable to a guilty passion.

43 I am of the opinion that it was open to the jury to conclude that the appellant’s responses recorded in the telephone conversation of 14 September 2005 contained an acknowledgement by him that he had in the past acted towards the complainant in a way that established that he had a “guilty passion” towards her. The jury were made aware of the fact that it was for it to resolve what interpretation should be placed on what was said and that the complainant’s reliability was fundamental in determining that question. It follows that the evidence, in my opinion, was admissible pursuant to s.97 of the Evidence Act to prove the relevant tendency as specified in the tendency notice and, in particular, that such evidence did have significant probative value.

44 In terms of s.101(2) of the Evidence Act, I have considered the balancing test required by that provision. On the basis that the jury plainly accepted that the evidence was probative of the relevant tendency, I am of the opinion that the probative value of the evidence substantially outweighed any prejudicial effect that it may have had upon the appellant.

45 I accordingly am of the opinion that the first ground of appeal is without substance.

Ground 2: The permitted use of tendency evidence

46 The issue raised by the second ground of appeal is directed to the directions provided by the trial judge in his summing up. The appellant contends that the directions given were inadequate in that they were neither clear nor precise as to the ways in which the tendency evidence could be used and the ways in which it could not be used.

47 The jury should, in my opinion, have been given directions on the following:-

• Firstly, that it was a matter of interpretation for the jury as to whether or not the appellant’s recorded responses constituted tendency evidence in the sense of establishing a sexual interest in the appellant of the complainant.

• Secondly, that if the jury did interpret Exhibit A in that way, the evidence could not be used against the appellant as evidence that established that he had committed one or more of the counts charged.

• Thirdly, the jury would, however, be entitled to use Exhibit A as tendency evidence, in the sense that it could be used as some evidence of “guilty passion” or sexual interest by the appellant in the complainant and as evidence that supported her account. The evidence in that sense could go to support her credibility in respect of her evidence as to the acts she claimed occurred and which constituted the counts charged.

48 The Crown, in its written submissions, with respect, correctly identified that the evidence of “guilty passion” may:-

• Establish a sexual relationship which makes the complainant’s allegations more likely to be true: Regina v Wickham (NSWCCA, unreported 17 December 1991) per Gleeson CJ at 7-8.

• Be capable of constituting evidence of motive, namely, sexual gratification and thus a form of corroboration of a complainant’s evidence: B v The Queen (1992) 175 CLR 599 at 610 per Deane J.

• Make it more likely that the offences charged were in fact committed: Regina v Beserick (1993) 66 A Crim R 419 at 422.

49 The directions given by the trial judge did not address any of the matters referred to in paragraphs [47] and [48] above. The directions given were quite inadequate to ensure that the jury understood the basis upon which the evidence was admitted and the use to which that evidence (Exhibit A) could be put and could not be put.

50 The trial judge, in stating that the question was whether the jury could draw an inference adverse to the accused from the words in the telephone call, did not identify what he meant by “an adverse inference to the accused”. He did not expressly refer in relation to the use of the tendency evidence to the fact that before any inference could be drawn the jury had, firstly, to determine, if at all possible, what interpretation was to be placed upon the words used. More importantly, the directions given did not, as indicated above, then make it clear that whatever adverse inference could be drawn, the words could not be used to draw an inference that the accused was guilty of one or more of the counts charged.

51 In the course of his summing up, the trial judge stated:-

“The next general matter of law is; you have been asked to draw certain conclusions from the context or the content of that first telephone conversation in September when [the complainant] phoned the accused and [sic] the various words have been debated before you by both counsel. I do not need to repeat that. But what I have to tell you is this; what you are being asked to do by the Crown is to draw an inference adverse to the accused from the words in that telephone call. He is asking you to say in the context of that call or surrounding the call there is only one way to look at it. Now, inferences, of course, are something you are entitled to draw when appropriate from any particular set of facts …”

52 The trial judge then proceeded to provide two hypothetical examples of factual situations which could be said to give rise to permitted inferences. It is true that, later in his summing up, the trial judge stated:-

“… I just say this to you, of course, what is in the telephone calls and the interpretation the Crown put upon them depends, of course, upon (the complainant) being accepted, because she is the one that says what ‘it’ was, although not in the phone call, as you will appreciate, so it is tied together in that way, and they say when you stand back and look at it all, then you can safely act on (the complainant).”

53 The position was then that the directions did not inform the jury as to the basis upon which the evidence was admitted - as tendency evidence and not as evidence by way of admissions or of guilt in relation to the counts on the indictment.

54 As the jury were left with the tendency evidence without such guidance, it is impossible to say that it did not use the evidence in either of those ways.

55 At the conclusion of his summing up, the trial judge asked as to whether any further directions were sought and counsel for both the Crown and the appellant stated that none were sought.

56 Accordingly, I am of the opinion that the direction given in respect of Exhibit A was a mis-direction by reason of the failure to address the matters to which I have referred. I should add in relation to what was put to the jury on this aspect, the question was not in truth one involving the drawing of an inference from Exhibit A so much as the jury determining the proper interpretation to be placed upon the actual words used in order that the meaning of the words attributed to the appellant could be ascertained. The trial judge seemed to be of the view that his general direction on the drawing of inferences from established facts was one that was appropriate and sufficient to deal with Exhibit A. It clearly was not.

57 Whilst counsel for the appellant strongly argued against the admission of Exhibits A and B into evidence, and later sought a discharge of the jury based upon the admission of pre-text telephone conversations, he did not, in terms, seek a direction as to how the evidence could be used should the jury construe the words as constituting tendency evidence. However, in the circumstances in which counsel had plainly indicated the basis upon which he contested the pre-text telephone evidence, I consider that it would be inappropriate in the circumstances to invoke the provisions of Rule 4 of the Criminal Appeal Rules. The Crown, however, did submit that, in the event that either ground of appeal was found in favour of the appellant, then in the context of the trial and the manner upon which it was fought, any error or absence of direction was not of such significance that this Court would conclude that the verdicts of the jury should be set aside. The submission was that the appeal should be dismissed: Criminal Appeal Act 1912 (NSW), s.6(1).

58 The application of the proviso in s.6(1) is to be undertaken in accordance with observations of the High Court in that regard in Weiss v The Queen (2005) 224 CLR 300 and in Libke v The Queen (2007) 235 ALR 517.

59 In Weiss (supra), the Court (at 314) emphasised that the fundamental task committed to an appellate court by the common form of criminal appeal statute is to decide the appeal. Insofar as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury would or might do:-

“… rather, in applying the proviso, the task is to decide whether a ‘substantial miscarriage of justice has actually occurred’.”

60 The High Court also emphasised the following fundamental propositions:-

• The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred.

• The task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction.

61 Accordingly, in the present case, the Court is required to make its own independent assessment of the evidence and determine whether, making due allowance for the limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts of guilty (Weiss (supra) at 316).

62 In undertaking this task, it is, I consider, relevant to have specific regard to the ERISP conducted with the complainant on 17 August 2005. Her answers to the many questions therein recorded appear to be both responsive and rational and were given without any apparent difficulty or in a manner that would suggest any unreliability in the complainant. The jury, of course, had the benefit of seeing and hearing her, in particular, in cross-examination, in which again her answers have the appearance of being both responsive and frank and given without obfuscation or in a manner which would give rise to any particular concern as to either her veracity or reliability.

63 As the High Court observed in Weiss (supra) at 317, an appellate court’s task must be undertaken on the whole of the record of the trial, including the fact that the jury returned guilty verdicts. Further, as the Court there observed:-

“… but there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial judge. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial …” (at p.317)

64 The High Court in Weiss (supra) also stated that it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials and that the standard of proof is beyond reasonable doubt.

65 The High Court further emphasised in that case “… it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”.

66 In Libke (supra), the High Court referred to its observations in Weiss (supra) at [45] and added:-

“The foregoing statement must be read with the several others made in this Court which emphasised that, once it is shown, as it has been to all members of this Court, that irregularities disadvantageous to the appellant occurred at his trial, it is for the prosecution to satisfy the appellate court that such irregularities have caused no substantial miscarriage of justice.”

67 The application of the proviso to the present case is then to be made having regard to the evidence in the proceedings, the addresses of counsel and the directions given by the trial judge referred to earlier. It is also necessary to take into account the way in which counsel referred to the pre-text conversations in the course of final addresses. In that respect:-

(a) It was suggested that the offences occurred in the context of a relationship in which the complainant had been conditioned by the appellant’s actions over a long period of time. Reference was made to her evidence in which she said that “it happened millions of times” . The jury were addressed upon the basis that the history of the relationship would make more believable the five incidents that occurred in that context. The issue of “relationship evidence’ is dealt with separately below.

(b) In relation to the pre-text telephone calls, the Crown Prosecutor stated

“ … then you come to the accused and, specifically in relation to him, I’d ask you to consider the telephone calls. I’ve cross-examined him at length about them, you’ve heard them, you’ve had the transcript to look at. What do you make of those? ‘Mum’s been putting me into counselling lately, I just wanted to know why you did it’, now how can that possibly relate to the breakdown of the marriage? Maybe it was just feasible, marginally possible if he just got up one day and said ‘I’ve had this, I’m not coming back, I’m walking out’ and he just packed up and left. You may be able to say, well you did it, in fact, in the sense that you walked out. But that’s not the reality. It wasn’t a you did it break-up, it was a they did it break-up, so, in fact, Mum was the first one to move, she moved to Canberra …”


(c) The Crown Prosecutor submitted that there was no alternative plausible interpretation of the words given by the appellant supported by the evidence than that contended for in the Crown case.

(d) In addressing the jury in relation to the credibility of the complainant, the Crown Prosecutor stated:-

“… it may be said to you these allegations are so easy to make and so hard to disprove, but the corollary is just the same. These sorts of sexual assaults are so easy to commit and so hard to prove. But here you have, I suggest to you, independent support for [the complainant] from those two taped telephone calls. (Counsel for the defence) put to the police officer, ‘well you didn’t get a confession’. Well, that’s a matter for you , not a matter for the police officer. What she said was we used the second call because I wanted more, not because I didn’t have any confession , but I haven’t but I wanted more and that’s a legitimate reason, you might think, for the second phone call …” (emphasis added)

68 This last-mentioned extract from the Crown’s address has been considered in the context of the whole of the address in order to determine whether anything else was said that could have added emphasis or meaning to the words extracted above. Whilst tendency evidence can provide support for a complainant’s credibility, what was said in the passage extracted above by the Crown Prosecutor included his suggestion to the jury that the two taped telephone calls provided “independent support” for the complainant, this being said in the context of the complainant’s allegations concerning the counts charged. The reference to the two telephone calls, in my opinion, was capable of having been interpreted by the jury as being some form of admission in respect of the particular incidents (or some of them) the subject of the charges.

69 The Crown Prosecutor’s further statement extracted in paragraph [67(d)] that it was put to the police officer that he didn’t get a “confession” in the pre-text telephone calls and then by adding “well that’s a matter for you, not a matter for the police officer” reinforced the suggestion that the telephone responses of the appellant could be construed as a “confession” or an admission.

70 It is important not to analyse the final address by the Prosecution in minute terms as one might do the terms of a contract or other legal instrument. It is important, as I have stated, to examine what the Crown Prosecutor said in the whole context of the final address and the way in which the trial was conducted.

71 The question in the application of the proviso is whether or not the above quoted statement of the Crown Prosecutor which suggested that the pre-text conversations could be taken as corroboration of the complainant in relation to the counts charged in the sense suggested in the Crown’s address would, by itself constitute a use of the tendency evidence beyond its permitted use.

72 The last two sentences of the passage extracted above do suggest that the Crown Prosecutor was putting to the jury that they may well accept the appellant’s responses as recorded in the pre-text telephone calls as a confession or an admission, in particular, by saying, in effect, that it was a matter for the jury to determine whether the responses constituted a confession and that the second call was made because the complainant stated that she wanted more by way of response from the appellant “not because I didn’t have any confession”, again suggesting that the earlier responses on 14 September did constitute a confession.

73 I accept that the Crown Prosecutor did not set out to overstate the use of the tendency evidence, but that he inadvertently did so in suggesting that the responses of the appellant constituted an admission and this was put to the jury with some emphasis tantamount to an invitation to the jury to regard the appellant’s recorded responses on 14 September 2005 as, in fact, being a confession to the matters charged.

74 Those comments have to be assessed in light of the fact, as I have determined it, that there were no proper directions given to the jury as to how the evidence of the pre-text telephone conversations could be used and what would be impermissible use.

75 In the evaluation of this matter, there was evidence of a sexual relationship over many years to which I have earlier referred given by the complainant. That evidence was potentially very damaging to him. It must be given due consideration in relation to the question presently under consideration. I, accordingly, will express my conclusion in relation to Ground 2 and the application of the proviso after I have considered the relationship evidence adduced in the proceedings.

Relationship evidence

76 In the summing up, the trial judge made the following observations and gave the following direction at pp.5-6:-

“Now, you’ve heard pieces of evidence, particularly - well I think, entirely from [the complainant], that she says events such as the particular counts relate to, happened on many occasions. Now you heard that because it’s part of the overall picture of which she speaks, to put the overall situation in context. You are not allowed to use that in any way to fill any gap that you may find in respect of any particular charge.
You are not entitled to say, ‘well, we’re not altogether sure about that, because it was going on pretty regularly, so it doesn’t matter’. You are not entitled to do that at all. Each of the charges has been put in a particular way, as I will come to, and you have to be satisfied about the relevant elements in respect of each of them. You cannot use general allegations to fill in gaps in specific charges.”

77 A question has been raised belatedly in this appeal as to whether the trial judge failed to properly direct the jury on the “relationship” evidence.

78 In the Supplementary submissions on behalf of the appellant, it was submitted the Crown case was not a strong one and was dependent solely upon the evidence of the complainant. It was observed that there was no supporting evidence other than the material contained in the telephone calls. It was also observed that the five separate counts on the indictment alleged to have occurred between 12 April 2003 and 5 May 2005 were not the subject of complaint until after the appellant and the complainant’s mother separated in May 2005. It was also noted that the complaint came only when the mother intercepted certain text messages between the complainant and the appellant in August 2005 and that this was not a case in which there was medical evidence to support the complainant’s version.

79 There was no ground of appeal raised in relation to the trial judge’s directions in relation to such evidence. That question was raised by the Court during the course of the hearing of the present appeal at transcript of 4 September 2007, at p.8, lines 32-44. Senior counsel for the appellant was later asked whether or not he was seeking to amend the grounds of appeal or not. In response, he first indicated that he did make application to amend. He was requested to specify precisely what amendment he proposed. A little later, he added, “I don’t really seek to amend, I just seek to supplement my previous (sic) to cover the matters raised by your Honours” (transcript, 4 September 2007, p.21).

80 On 6 September 2007, Written Supplementary Submissions on behalf of the appellant were received by the Court. At p.15 and following of those submissions under the sub-title “Directions – the difference between tendency and relationship evidence” – submissions were made on the question of “relationship evidence” and what was asserted to be an absence of directions by the trial judge in relation to evidence of relationship between the appellant and the complainant. Extensive passages were quoted from this Court’s judgment in Regina v Hagarty [2004] NSWCCA 89 at [23]. In paragraph [28] of the Supplementary Submissions, it was contended for the appellant:-

“28. It follows that assuming the evidence was restricted to relationship evidence in the present appeal (although it is not clear on what basis it was admitted), at the very least a warning and direction as set out in Hagarty should have been given. We submit the very opposite occurred in the present case and the matter was left open ended for the jury to make of it what they wanted without the assistance of directions. This was a ‘significant error in the conduct of the trial’: see Regina v Veitch [1999] NSWCCA 185 at [46].”

81 It is clear that in the Supplementary Submissions counsel for the appellant sought to establish an additional error in the conduct of the trial by reason of what is put as an absence of directions in relation to relationship evidence.

82 I have earlier observed that there were only two grounds of appeal (see paragraph [13] above) and that whilst senior counsel for the appellant was asked, if he wished to apply to amend the notice of appeal, to identify the terms of any proposed amendment, he did not do so.

83 It is most unsatisfactory that, without formulating any additional ground of appeal, the supplementary submissions lodged after the hearing in fact raised and addressed the issue of claimed inadequacies in the directions concerning “relationship evidence”. Those submissions raised a separate point to those that had been raised by Grounds 1 and 2 of the notice of appeal. It is unsatisfactory because submissions in relation to directions on that matter have been made, firstly, without a formal application for leave to amend being made and, secondly, without any specification as to precisely what additional ground of appeal concerning the relationship evidence is in fact relied upon. There had additionally been no submissions from the Crown on the new point sought to be raised in the written submissions.

84 The Crown in its reply submissions dated 11 September 2007 (paragraph 4), stated:-

“4. To the extent that the submissions now filed extend beyond these areas [26] – [28] and re-agitate matters which have previously been the subject of submission and argument [2] – [27], the Crown objects to leave being granted to the appellant to rely on the supplementary submissions filed. As stated by Mason J in Carr v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 at 258, ‘ the hearing is the time and place to present argument’.”

85 The Crown, in the absence of an application to amend the grounds of appeal which formulated the additional ground proposed to be relied upon, was, in my opinion, entitled to take the position it did as expressed in paragraph 4 of its reply submissions set out above.

86 In Eastman v Director of Public Prosecutions (ACT) (2003) 198 ALR 1, McHugh J, in a postscript to the joint judgment in that case, stated:-

“29. Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing – ordinarily 7 to 14 days. But a party has no legal right to continue to put submissions to the Court after the hearing. Insofar as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
30. This is not the first time that this Court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corp of Australia Ltd (No 1) 246 at 258, Mason J said:-
‘The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, the parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say that once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.’

87 In Foggin v Lacey (2003) 57 IPR 225, Moore and Bennett JJ observed that, at the conclusion of the hearing in those proceedings, the parties were granted leave to make supplementary written submissions but only in relation to specific issues. In due course, the appellant, without having sought leave to amend the notice of appeal to raise a particular issue after the hearing, lodged submissions which dealt with that issue. It had not been the intention that the appellant could provide the supplementary written submissions on that aspect. Consequently, after citing the dicta of Mason J in Carr v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 at 258 their honours stated that no regard was given to the appellant’s written submissions on that issue (the issue being the time to test infringement).

88 The hearing and determination of an application to amend the notice of appeal, and providing an opportunity for the Crown to consider the proposed new ground and to place such submissions as it wished to make in relation to it, meant that the final determination of the appeal would necessarily be delayed.

89 By s.6(1) of the Criminal Appeal Act 1912, this Court may, on an appeal against conviction, allow the appeal if it is of the opinion “… that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice …” (emphasis added).

90 In circumstances in which an appeal is brought and it becomes apparent to an appellate court, whether or not a particular ground of appeal has been raised, that a serious miscarriage of justice has occurred, then, of course, such a court must intervene: Gippv The Queen (1998) 194 CLR 106 at 153. As Kirby J in that case, at 154, stated:-

“Defensive of the liberty … and other rights of those convicted of criminal offences, courts of criminal appeal in Australia have always been ready, more so than in civil matters, to take a lenient view of procedural failures where that course is deemed appropriate and just. In exceptional cases, where serious error is brought to light, such courts regularly allow a ground to be raised belatedly which concerns a ‘manifest miscarriage of justice’ …
Rigidities of pleading or procedure do not prevent evaluation of substantial arguments that a manifest miscarriage of justice has occurred, particularly, but not only, where such miscarriage has resulted in a custodial sentence.”

91 As Kirby J there observed, provisions such as those to be found in s.6(1) of the Criminal Appeal Act require that, in criminal appeals, all courts should be vigilant as to miscarriages of justice brought to their notice. His Honour added, “… when a manifest miscarriage can be shown, Australian courts, unless forbidden by statute, do not turn a blind eye” (at 154).

92 In the interests of ensuring the proper and just disposal of this appeal, the Court determined that it would adopt the unusual course, with all its attendant delay, of providing the parties with an opportunity of being heard on the issue as to relationship evidence.

93 The appellant was, accordingly, directed to lodge an application to amend the notice of appeal setting out the proposed amendment. The proposed amendment was in the following terms:-

“The learned trial judge failed to properly direct or to direct the jury at all in relation to the evidence of relationship between the applicant and the complainant.
The learned judge failed to properly warn or to warn at all in relation to the evidence of relationship between the applicant and the complainant.
In all the circumstances the trial of the applicant constituted a miscarriage of justice.”

94 The Crown, in accordance with directions given, lodged written submissions dated 4 December 2007 and the proceedings were listed for further hearing on 5 December 2007 for the purposes of determining:-

(a) Whether leave to amend the ground of the notice of appeal should be granted.

(b) In the event that leave were granted, to receive any submissions from the parties on the proposed additional grounds of appeal.

95 The Crown opposed the granting of leave to the appellant to rely upon the additional proposed grounds. Reliance was placed on s.25 of the Criminal Appeal Rules. It was submitted that it is not apparent that an extension can be given retrospective application so as to accommodate leave being granted after the hearing of the appeal and following the delivery of submissions filed with leave.

96 I am of the opinion that this Court has adequate power to permit leave to the appellant to amend his grounds of appeal, even at this late stage. In that respect, I consider the observation of Gaudron J in Gipp is apposite where her Honour stated at [23]:-

“… I would, nonetheless, grant leave to the appellant to amend his grounds of appeal and allow the appeal. In this respect, it is sufficient to note that, when an appeal is lodged, the entire matter is before the Court to which the appeal is brought and, unless there is some statutory provision to the contrary, that Court ‘can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous’: Ah Yick v Lehmert (1905) 2 CLR 593 at 601 per Griffith CJ.”

97 The Crown referred in oral submissions to the judgment of Spigelman CJ in DRE v Regina [2006] NSWCCA 280 in which the Chief Justice stated that, in the particular circumstances of that case, leave under Rule 4 of the Criminal Appeal Rules should be refused. However, an examination of the circumstances which led the Chief Justice to that conclusion do not, in my opinion, assist in resolving the question as to whether or not leave in the present case should be granted.

98 The Crown contended that the trial judge’s directions to the jury on the “relationship evidence” were sufficient to convey the limits on the use of that evidence. The directions, taken as a whole were said to have left the jury with an understanding of at least three things:-

(a) To convict, the jury had to be satisfied of the truth of (the complainant’s) evidence.

(b) That her evidence of uncharged acts was relevant only to show the overall picture and place the offences into a context of sexual impropriety.

(c) The evidence was not direct evidence of the offences charged so that, if the jury was not satisfied that the conduct the subject of the charge has been proved, they could not use the evidence of uncharged conduct to convict the accused.

99 The Crown set out in its helpful additional submissions (paragraph 18) the particular matters upon which the jury were instructed. However, the jury were not instructed (with respect as suggested in (c) above) that they were not permitted to use the relationship evidence to reason that the appellant was guilty of the offences charged.

100 The Crown, alternatively submitted that if a miscarriage was established, then an objective and independent assessment by this Court of the evidence on the whole of the record was such that it would resolve that the accused is guilty and that no substantial miscarriage of justice had actually occurred.

101 There was a significant amount of evidence on the relationship that had existed between the appellant and the complainant. The evidence was contained in the answers of the complainant during the ERISP (Q.410, 434, 436, 444, 589 to 604, 631, 745, 779 to 780, 881 to 882). The issue of the relationship was also raised in the course of cross-examination on a number of occasions: transcript, 8 November 2006, p.66, lines 22 to 49, p.104, lines 49 to 57, p.105, line 1, p.106, lines 35 to 49 and p.150, lines 31 to 40.

102 The nature of the relationship evidence as given by the complainant was, if the complainant was accepted as a reliable and truthful witness, extremely prejudicial to the appellant. In those circumstances, it was essential that proper directions be given to the jury as to how such evidence could be used and how it could not be used.

103 In considering the new ground of appeal in relation to the relationship evidence, it is necessary to consider, in the context of the whole trial, in particular, the evidence and the directions given in determining whether the jury may have impermissibly used the relationship evidence as either propensity evidence or as evidence of the appellant’s guilt in relation to the specific counts charged. In assessing this question, it is appropriate to have regard to the fact that neither counsel or the judge suggested that the jury were entitled to use the evidence in this way and to the fact that the trial judge did emphasise the importance of assessing the complainant’s credibility In relation to each count.

General principles

104 It is a general rule that “every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed”: Mraz v The Queen (1955) 93 CLR 493 at 514; KBT v The Queen (1997) 191 CLR 417 at 423-424.

105 A mis-direction by a trial judge can occasion a miscarriage of justice where such mis-direction means that the accused has not had a fair trial according to law or where the relevant law has not been correctly explained to the jury. Where the accused has thereby lost a chance, which was fairly open, of being acquitted, such failures are, in the eye of the law, a miscarriage of justice: Gipp (supra) per Kirby J at 158.

106 A conviction will be set aside whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the Court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner that it has been reached, the jury may have been mistaken or misled: M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.

107 The directions given by the trial judge in relation to relationship evidence are extracted in paragraph [76] above. I am of the opinion that the directions given were inadequate and did not convey the limitations upon its use.

The restrictions on relationship evidence

108 In Gipp (supra), a case involving a very short trial, the prosecutor adduced evidence of a general history of alleged sexual molestation extending beyond the specific incidents, the subject of the counts. The trial judge’s summing up on the approach which the jury was to take to that evidence was considered unsatisfactory. The direction given in this respect was:-

“There is also overall evidence of ongoing conduct by the accused over many years … That evidence of general behaviour is led to show the nature of the relationship between the complainant and the accused, rather than present a picture of isolated events from time to time. There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant’s account that it occurred.”

109 Gaudron, Kirby and Callinan JJ (McHugh and Hayne JJ dissenting) held that each verdict was unsafe and unsatisfactory and that the accused was entitled to a new trial on the five charges.

110 The emboldened portion of the summing extracted above was held to be a mis-direction. The deficiency otherwise in the direction led to the conclusion that each verdict was unsafe and unsatisfactory. The direction given on the standard of proof in the emphasised portion in the above extract was one fact taken into account. That, of course, is not a factor in the present case.

111 In relation to the general history of molestation, Kirby J at p.155 stated:-

“Additionally, where evidence of the kind admitted in this trial is received, special care must be exercised in the use to which it is put because of its significant potential to cause prejudice to the accused. This type of evidence has been classified in various ways. It has been called ‘dispositional’, ‘background’, ‘tendency’, ‘propensity’, ‘relationship’, or in some circumstances, ‘similar fact’ evidence …”

112 Kirby J cited, with approval, what was stated by the Court of Appeal of Victoria in Regina v Vonarx [1999] 3 VR 618 per Winneke P, Callaway JA and Southwell AJA:-

“[W]here evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.
The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against them … only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred.”

113 Kirby J concluded in Gipp (at 157) that, far from giving “the stringent warnings required by law”, at the point where the evidence was received and at the point at which the concluding instruction was given to the jury, “… the primary judge gave absolutely no warnings about the dangers of the use of such evidence”.

114 There are some similarities on the facts of the present case to those in Gipp (supra). In that case, the appellant had been charged with four counts of unlawful and indecent assault and three counts of rape of his step-daughter. The complainant’s evidence was uncorroborated. She gave evidence of a general nature concerning sexual abuse over a long period before the alleged offences occurred. There were two particular matters which distinguished that case from the present, but they do not bear upon the question presently at hand.

115 Although McHugh and Hayne JJ dissented in Gipp, their Honours re-affirmed the principle in BRS v The Queen (1997) 191 CLR 275, namely, that if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct a jury as to the use they can make of the evidence. Their Honours had close regard to the directions that were given in Gipp and, whilst noting that it “… would have been better”, if the trial judge had gone further and expressly told the jury that they were not to use a finding of previous or continuing history of incidents to reason to the accused’s guilt on the offences charged, the directions that were in fact given were considered to be sufficient.

116 It is of some importance to observe that McHugh and Hayne JJ in Gipp identified a number of matters that indicated that the “general behaviour evidence” did not unfairly or improperly affect the trial. One such matter was said to be that little emphasis had been placed on it during the trial and that, in particular, the Crown did not refer to or rely on it during its address to the jury (at p.138).

117 In the present proceedings, that was not the case. On a number of occasions, the Crown in its final address referred to the relationship evidence on a number of occasions emphasising, in particular, that the complainant had been “conditioned” to accept sexual molestation. In one such reference, the Crown put to the jury:-

“… now as you heard her interview, she says it happened millions of times. Well you take that as you take it in terms of a young girl talking about incidents that have occurred, as she says, basically from the time the accused moved into the family home, say from the age of six to 14, eight years of conditioning her, starting at an age when she doesn’t understand what’s happening to her and once she doesn’t complain, what is she to do?” (at transcript p, 272)

118 The Crown later referred to the fact that the jury had heard that sexual molestation had been “just ongoing” (transcript p.273). See also transcript p.274, lines 25 to 35.

119 The emphasis given by the Crown in the final address to the relationship evidence, in my opinion, highlights not only the desirability but the necessity for the trial judge to have directed the jury in terms similar to those given in Hegarty (supra). Without such direction, I do not believe it is possible to reach a conclusion that the general behaviour evidence did not unfairly or improperly affect a trial. There was, in my opinion, a real risk that the jury would improperly use the evidence to convict the appellant unless properly directed.

120 It is, of course, necessary to acknowledge that in determining whether there is a perceptible risk of a miscarriage of justice, the risk must be real and not a fanciful one to attract such intervention: see BRS v The Queen (1997) 191 CLR 275 per Kirby J at 168. In particular, as his Honour there observed, it is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice: BRS (supra) at 168.

121 It is clear from what was stated by McHugh and Hayne JJ in Gipp that, whilst, in relation to evidence as to a history of sexual molestation, it would be desirable for the jury to be told that they were not to use the evidence to reason that the accused committed the offences charged, the failure to do so does not necessarily constitute a mis-direction.

122 It is clear from what was stated in that case that much will depend upon the conduct of the case and the rest of the trial judge’s summing up in determining whether the jury may have misused the general behaviour evidence.

123 As Gaudron J in Gipp observed (at 112), general evidence of sexual abuse on occasions other than those charged does not have “… that special probative value which renders evidence admissible as ‘similar fact’ or ‘propensity’ evidence”. Additionally, her Honour observed that, in that case (as in the present), there was no feature that made it directly relevant to the question whether the appellant was guilty of the offences charged. However, evidence of prior sexual abuse may explain lack of surprise or failure to complain and evidence of general sexual conduct may be relevant and admissible in those respects.

124 The principal concern in a case such as the present is that directions given are framed adequately to ensure that a jury does not reason from a finding that there was a relationship involving past misconduct by the appellant to the conclusion that the appellant was guilty of the specific offences charged. Hence, the observation by Kirby J in Gipp that where evidence of the kind that was admitted in this trial is received “special care” must be exercised in the use to which it is put by reason of its significant potential to cause prejudice to the accused. It was by reason of that prejudicial effect, Kirby J observed (at 156) that the High Court had repeatedly warned of the dangers of allowing such evidence to be admitted, of permitting it to be received without immediate warnings as to the limited basis upon which it may be considered and then of the need to direct the jury, in the concluding charge, on the way in which, if at all, they should use evidence of that kind.

125 In circumstances of this case, there ought, in my opinion, to have been directions given by the trial judge that addressed the following:-

• That, if the members of the jury accepted the complainant’s evidence in relation to the alleged prior conduct, then they could see such evidence as providing background to the alleged offences, as showing the nature of the relationship between the appellant and the complainant at the time of the alleged offences, so that the complainant’s allegations could be placed in a realistic context in that the alleged offences were not isolated incidents which occurred, as it were, out of the blue.

• If the jury accepted that there was a background of other incidents of sexual impropriety occurring, that background could not be relied upon as tending to establish that any of the particular offences in fact occurred.

• That they could not use any such evidence as tending to show that, at the time of the alleged offences, the appellant had wrongful sexual feelings towards the complainant and, therefore, it was more likely that he committed the offences in question.

126 Directions along these lines would be consistent with Gipp (supra) per McHugh and Hayne JJ (dissenting) at [77] and [78] considered desirable but in the context of that case not considered by their Honours to have been essential.

127 The directions given by the trial judge as extracted in paragraph [76] did emphasise that the general evidence as to past alleged conduct was admitted:-

(a) Because it was part of the “overall picture” and to put “the overall situation in context” .

(b) That the jury were not allowed to use it “in any way to fill any gap” in respect of any particular charge.

(c) They were not entitled to use the evidence where they were not sure of a matter “because it was going on pretty regularly” .

(d) The jury had to be “satisfied” about the relevant elements in respect of each charge as general allegations could not be used to fill in the gaps in specific charges.

128 The question arising from the new ground of appeal is whether or not such directions were adequate, in the circumstances in this particular trial, to ensure that the jury did not reason in an impermissible way from the relationship evidence to their conclusion that the appellant was guilty of each of the counts.

129 In relation to the form of directions to be given concerning relationship evidence, I have had regard to what this Court stated in Regina v Hagarty [2004] NSWCCA 89. Whilst directions that comply with what their Honour’s stated in Gipp (supra) at [77] and [78] will not always be required, their omission in some cases may well constitute a misdirection and could lead to a miscarriage of justice.

130 It is apparent that, whilst the trial judge did give directions as referred to in paragraph [127], they did not carry with them the caution and the required warning as to the use to which the evidence could be used and not used as discussed by the Court of Appeal in Victoria in Regina v Vonarx (supra). The directions did not address the matters referred on in paragraph [125].

131 Given the inadequacies in the directions in relation to the alleged past sexual relationship, it is quite possible that, in the present case, the jury reasoned to the appellant’s guilt of the offences charged by reason of their satisfaction that he did have an ongoing sexual relationship with the complainant, as she claimed. This was the same possibility identified by Kirby J in Gipp (at 157).

Conclusion

132 This was a trial in which the evidence of the complainant was unsupported other than the evidence in the form of the pretext telephone conversation on 14 September 2005. It was the sort of case in which it was, in my opinion, essential that appropriate directions be given to the jury as to the function and use of propensity evidence and of relationship evidence.

133 In my opinion, for the reasons and in the respects outlined earlier, I have concluded that there were material omissions in the directions in relation to both the pretext telephone conversation of 14 September 2005 as propensity evidence and, additionally, and in relation to the relationship evidence.

134 There was, in my opinion, a significant risk of prejudice to the appellant if the propensity and the relationship evidence was not made subject of proper direction. The nature and particulars of the relationship evidence is potentially very prejudicial to the appellant and, for that reason, it was important for the jury to be provided with the necessary guidance and instruction as to how such evidence was to be used and the limitations on its use.

135 There was a failure by counsel, who appeared on behalf of the appellant at the trial, to seek further directions in relation to both the propensity evidence and the relationship evidence. In those circumstances, the application of the proviso, in particular, in relation to the new ground concerning relationship evidence, is a matter requiring close consideration by this Court. I do not consider that this is a case in which it is possible to conclude that error or errors made at trial would or should have had no significance in determining the verdict returned.

136 In those circumstances, it is, in my opinion, impossible to avoid the conclusion that the trial was not conducted according to law and that there has been substantial miscarriage of justice. In those circumstances, leave should be granted to permit the appellant to rely upon the additional grounds as to relationship evidence. By reason of the misdirection in relation to Ground 1 and the misdirection on the relationship evidence, the conviction should be set aside and a new trial ordered.

Orders

137 I propose the following orders:-

(a) Appeal upheld.

(b) Convictions entered on 13 November 2006 are set aside.

(c) Pursuant to s.8(1) of the Criminal Appeal Act 1912 , order that there be a new trial.

138 FULLERTON J: I agree with Hall J.

**********