Rolfe v R - [2007] NSWCCA 155

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Rolfe v Regina [2007] NSWCCA 155
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/1726

HEARING DATE(S): 2 May 2007

JUDGMENT DATE: 14 June 2007

PARTIES:
Mark Alfred Rolfe - Appellant
The Crown - Respondent

JUDGMENT OF: Giles JA James J Harrison J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 03/41/0025

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

LOWER COURT DATE OF DECISION: 20 October 2004 (Sentence)

COUNSEL:
R Bonnici - Appellant
V Lydiard - Respondent

SOLICITORS:
Justin Lewis & Co - appellant
S Kavanagh - Crown

CATCHWORDS:
Criminal law - sexual misconduct towards child - whether evidence inadmissible under s 293 Criminal Procedure Act because relating to complainant's sexual experience - whether exception in s 293(6) available - accused conceded admissible - did not apply to cross-examine pursuant to s 293(6) - no miscarriage of justice - admissions by accused of sexual misconduct towards complainant - not specifically of misconduct charged - whether "relationship evidence" - had additional relevance as admission - no application to exclude evidence of admissions - no miscarriage of justice - no miscarriage of justice because on counsel's advice accused did not give evidence - open to jury to be satisfied of guilt beyond reasonable doubt.

LEGISLATION CITED:

CASES CITED:
Gipp v The Queen (1998) 194 CLR 106;
KRM v The Queen (2001) 206 CLR 221;
M v R (1993) 67 A Crim R 549;
MFA v The Queen (2002) 213 CLR 606;
Papakosmas v The Queen (1999) 196 CLR 297;
Qualtieri v R [2006] NSWCCA 95;
R v AH (1997) 42 NSWLR 702;
R v Bernthaler (CCA, 17 Dcember 1993, unreported);
R v Beserick (1993) 30 NSWLR 510;
R v Button [2002] NSWCCA 159;
R v BWT (2002) 54 NSWLR 241;
R v Centraco [2005] NSWCCA 11;
R v Fraser (10 August 1998, unreported)
R v Greenham [1999] NSWCCA 8;
R v Hagarty (2004) 145 A Crim R 138;
R v L (CCA, 6 April 1992, unreported)
R v McKeon (1986) 31 A Crim R 357;
R v Murray (1987) 11 NSWLR 12;
R v Wickham (CCA, 17 December 1991, unreported);
Seymour v R [2006] NSWCCA 206;
Tully v The Queen (2006) 81 ALJR 391.

DECISION:
Appeal against conviction dismissed. Application for leave to appeal against sentence granted. Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/1726
GILES JA
JAMES J
HARRISON J
Thursday 14 June 2007

Mark Alfred ROLFE v REGINA

Judgment

GILES JA: The appellant was tried before J B Phelan DCJ and a jury on ten charges of sexual assault alleged to have occurred in the period August 1998 – April 2001. The complainant was aged from five and a half years to eight years at the time of the alleged offences. Seven charges were of aggravated indecent assault, the aggravation lying in the complainant’s age (Crimes Act 1900, s 61M(2)); two were of sexual intercourse with a person under ten (s 66A); and one was of aggravated indecency (s 61O(2)). The appellant was found guilty on all charges, and was sentenced to terms of imprisonment for an overall non-parole period of six years and an additional period of two years. He appealed against conviction and applied for leave to appeal against sentence.
The grounds of appeal against conviction as filed were -
“(A) Miscarriage of justice
The trial in this matter miscarried due to one, more or a combination of some or all of the following grounds:
Ground 1: “Complaint”
That all aspects of the issue of complaint including:
(a) The first statement made by the complainant;
(b)The initial denial of the complainant in relation to the appellant;
(c)The leading nature of the complaint arising from the mother of the complainant;
(d)And, ultimately, the retracting of same by the Trial Judge from the jury;
are erroneous and have unfairly prejudiced the appellant.
Ground 2: [abandoned]
Ground 3: “Admissions”
That the letters of the accused sent to the complainant’s mother, although designated as merely establishing the relationship between the complainant and the appellant, created such a prejudice to the appellant that it far outweighed any probative value it may have had.
Ground 4: “Confession”
That the so-called confession by the appellant to the Christian Minister, used to establish the said relationship, in reality must have been viewed as an ‘admission’ to the specific counts alleged, to which the appellant could not fairly defend himself.
Ground 5: “Silence”
That in the particular circumstances of this case and especially the above grounds, the failure to call evidence from the accused himself, plus the comments made thereon, caused the appellant to lose any chance of acquittal whatsoever.
(B) Verdicts Unreasonable
The 10 verdicts of the jury, based predominantly on the evidence and therefore credit of the complainant were unreasonable in that they were unsafe and unsatisfactory, for one or some or all of the following reasons:
Ground 6: “Inconsistencies of Opportunity”
That inconsistencies as to the opportunities for committing the offences were not properly considered; otherwise reasonable doubt as to guilt should have been made out and reflected in the verdicts.
Ground 7: “Lack of Corroboration”
The specific evidence of the complainant is so uncorroborated by any admissible and supporting evidence, that the jury should have been instructed that it must be dangerous, as distinct from ‘may’, to convict in such a situation.
Ground 8: “Lies of Complainant”
That the self-confessed lies and imaginary-type explanations in telling same by the complainant should have caused reasonable doubt as to her credit.
Ground 9: “Motives of Mother”
That the possible motives of the complainant’s mother in influencing the complainant should have created, if properly considered, sufficient apprehension as to cause reasonable doubt.
Ground 10: “Influence of Pornography”
That the uncontested existence of pornographic videos, and at least some viewing by the complainant, should have created reasonable apprehension as to the credit of the complainant and the reliability of the mother with regard to the sexual knowledge of the complainant in such matters.
Ground 11: “Whole of Evidence”
That the whole of the evidence as it unfolded and presented in the course and conduct of the trial and in the context of the verdicts delivered was such as it could not be open to a jury to find guilt beyond reasonable doubt.”
At the hearing there was added a ground of appeal, which I will call ground 11A, effectively as amplification of ground 5 -
“Due to counsel’s advice in the trial to the appellant that he should not give evidence and the acceptance of that advice by the appellant, the appellant was denied the opportunity of explaining matters without which explanation cost him the chance of an acquittal and caused a miscarriage of justice.”
The grounds of appeal against sentence as filed were -
“Ground 12: “Overall Sentence”
That the overall head sentence imposed of 8 years is manifestly excessive.
Ground 13: “Special Circumstances”
That in all the circumstances of this case, special circumstances do exist and should have been found to reduce the period of non-parole custody.”
The appeal and application were listed for hearing before this Court, differently constituted, in December 2006. When the appellant reached his submissions on ground 5, he applied for “leave … to explain why he didn’t give evidence”. In the result the hearing was adjourned, with a direction for filing of evidentiary material and any amended ground of appeal; hence ground 11A, although it was only added at the adjourned hearing. When the appeal was re-listed for hearing before the Court as presently constituted the appellant and the Crown agreed that it should not be treated as part-heard before the Court as originally constituted, but that regard should be had to the transcript of the partial hearing in December 2006.
Background
The complainant was born on 17 February 1993. A younger brother was born on 13 May 1995. Their mother and father separated. The mother commenced a relationship with the appellant in the latter part of 1997, and the mother and the appellant were married in January 1998.
In about June 1998 the mother and the appellant moved, with the two children, from Victoria to New South Wales. They lived for a short time in rented premises at Bega, then in a house on a dairy farm at Numbugga. In June 1999 the mother bought a property at Wolumla. At first the family stayed in a shed built on the Wolumla property, a double garage partitioned by furniture into sleeping and living areas with an adjoining tent as a bathing area, while their house was being built. They moved into the house in December 1999.
After their mother moved to New South Wales the children’s father saw them monthly (fortnightly for the first six months), and the children spent their school holidays with their father in Victoria.
The appellant suffered from a back complaint, and did not work in employment during this time. From December 1998 to June 1999 the mother worked in Bega four days a week from 10 am until 4 pm. She did manual work at the Wolumla property as the house was being built, and after completion of the house worked at night (8 pm – 12 pm) between April and July 2000. Over the whole period the appellant left, as a result of arguments with the mother, on five occasions each for some days or weeks. On 11 April 2001, following another argument, he left and did not return.
The complainant first told her mother of the appellant’s conduct on 17 May 2001. The mother then went to the police.
The Crown case
In chronological order, the charges against the appellant were in summary as follows.
Count 1:
At Numbugga, when the complainant was five or six years old, that the appellant took her hand while he was lying on his bed and used it to masturbate him (aggravated indecent assault).
Count 2:
On the same occasion, that after the complainant left the appellant caused her to return and the same occurred (aggravated indecent assault).
Count 3:
In the shed at Wolumla, when the complainant was six years old, that after the complainant had had a bath the appellant put her on the top bunk in the children’s sleeping area and licked her vagina (sexual intercourse).
Count 4:
In the shed at Wolumla, when the complainant was six years old, that the appellant took her onto the master bed and put his penis in her mouth (sexual intercourse).
Count 5:
In the house at Wolumla, when the complainant was six or seven years old, that the appellant took her into the master bedroom and made her rub his penis (aggravated indecent assault).
Count 6:
On the same occasion, that the appellant took the complainant’s clothes off and sat her on top of himself and rubbed his penis along the outside of her vagina (aggravated indecent assault).
Count 7:
On the same occasion, that the appellant masturbated himself in front of the complainant until he ejaculated (aggravated indecency).
Count 8:
In the house at Wolumla, when the complainant was eight years old, that on the couch in the lounge room the appellant took the complainant’s hand and used it to masturbate him (aggravated indecent assault).
Count 9:
In the house at Wolumla, when the complainant was eight years old, that in the kitchen the appellant made the complainant masturbate him until he ejaculated (aggravated indecent assault).
Count 10:
In the house at Wolumla, when the complainant was eight years old, that the appellant pulled the complainant from the floor onto the couch in the lounge room where he made her masturbate him (aggravated indecent assault).
The charges in counts 1-7 were not specific as to time, but were in the form of “between 1 August 1998 and 21 June 1999” (count 1). Count 8 charged an offence on or about 20 March 2001, identified from a television programme. Counts 9 and 10 charged offences between 1 and 11 April 2001, identified by proximity to the appellant’s final departure.
The Crown case essentially rested on the complainant’s evidence, together with the evidence of an examining doctor who took a sexual assault history and evidence found in letters written by the appellant to the mother and in communications between the appellant and a minister of religion, Mr Ian Weerawardena.
The complainant made two recorded interviews with police officers, one on 30 May 2001 and the other on 17 December 2002. At the time of the trial the complainant was aged eleven. The judge was satisfied that she understood the difference between the truth and a lie and her duty to tell the truth, and she gave evidence by closed circuit television (see Pt 4 of the Evidence (Children) Act 1997). The audio tapes of the recorded interviews were admitted and were played to the jury (see Pt 3 of the Evidence (Children) Act). The jury were provided with transcripts as aides memoire. One transcript was of 64 pages, in the form of 531 questions and answers; the other was of 27 pages, 208 questions and answers. There was no objection to any part of the audio tapes or the provision of the transcripts. In evidence in chief the complainant affirmed that, save as to two matters which she corrected, what was said in the recorded interviews was true. It is not necessary to detail the appellant’s conduct described in the recorded interviews; if accepted by the jury, the evidence thus given by the complainant amply made out the charges. Corrections made and particular aspects of the appellant’s conduct as described will, however, be considered later in these reasons.
The complainant was medically examined on 29 May 2001. The doctor gave evidence of taking a sexual assault history, which matched although without the detail the nature of the acts later described in the recorded interviews. It is not necessary to recount the history more fully; it was of the appellant making the complainant touch his penis, ejaculating, taking her clothes off and sitting her on top of his penis, and on one occasion licking her vagina. The evidence of the medical examination was essentially neutral; the doctor said that she did not expect, from the history, to see any signs of trauma. There was no objection to the doctor’s evidence.
The evidence through the letters was four letters written by the appellant to the complainant’s mother, dated 11, 13 and 17 June 2001 and 1 April 2002. There was no objection to the tender of the letters. In the light of ground 3 of the grounds of appeal, I set out the particularly relevant parts of the letters.
The letter of 11 June 2001 included -
“I am truly very ashamed for what has happened, I do not even have the right to ask you for your forgiveness. I have confessed all to Ian, he wanted to know the what’s but he wouldn’t hear the why’s, he was very angry with me that day.
…
I can only promise to you that things would be so very different and where [the complainant] is concerned all I can say is my promise to God that I have made (no more).”
“Ian” in this letter was Mr Weerawardena, and it will be seen later in these reasons that what was written is linked with his evidence.
The letter of 13 June 2001 included -
“Firstly, though I must again apologise for what has happened, I told you on the phone this morning how I tried for so long to stop and you only thought that I had something for [the complainant’s brother] when you saw me push [the complainant] away, how could I tell you! You know how she is she would be on your lap and start to gyrate herself; No! My love I’m not finding excuses nor saying [the complainant] is to blame for I alone am at fault in letting it happen and to say how ashamed I am seems such a small word as to how I feel. I am truly so very sorry.”
The letter of 17 June 2001 included -
“I know that by this letter I have broken all agreements, you have the ability to send me to prison if you want … I am ashamed of myself for what has happened, but do you not see how easy it is for this sort of thing to happen and me being me, I am so weak as anything sexual is a big thing for me! I could apologise to you all until the day I die and I know that it still will not be enough! I am so very, very sorry.”
The letter of 1 April 2002 referred more generally to “things have happened that I am deeply ashamed of”.
The appellant encountered Mr Weerawardena, a minister of the Assemblies of God Church, shortly after leaving on 11 April 2001. He became a member of Mr Weerawardena’s congregation and was baptised into his church. Mr Weerawardena had some discussions with the complainant’s mother and the appellant concerning the state of their marriage, and then on two occasions had conversations with the appellant on which the Crown relied. Again, in the light of ground 4 of the grounds of appeal I set out the particularly relevant evidence.
Mr Weerawardena gave the evidence without objection, which I will call the first Weerawardena evidence -
“CROWN PROSECUTOR: Q. She [the complainant’s mother] then rang you?
A. She rang me.
Q. She said something to you about her daughter?
A. Exactly, yeah.
Q. As a result of that telephone call did you contact Mr Rolfe?
A. Yes, that day we were having lunch and I had this phone call, I called Mark outside where we were having lunch and I asked him ‘Mark, I’ve just got to know that there’s more to your confessions. On the grounds of your confession we accepted you and as a minister we prayed and granted, you know, to that we could grant forgiveness, but before God, you know. But then new issues are coming out which you never confessed to me’, and I asked him that day ‘Have you committed such a thing?’
Q. Do you remember what words you actually said?
A. Yes, I asked him ‘Have you – according to the mother’, I’ve forgotten the name, [mother’s first name], she states that Mark here has abused her daughter, and I asked him ‘Mark, tell me the truth, why did you lie to me’, then he nodded his head.
Q. Sorry, in relation to what question did he nod his head?
A. That he has abused [mother’s first name’s] daughter.”
Mr Weerawardena then gave what I will call the second Weerawardena evidence, over the objection that it should be excluded for unfairness under s 90 of the Evidence Act 1995. He said that some months later the appellant came to his church and showed him a document to do with a police charge of child abuse, that in the ensuing conversation he said to the appellant that “all what you said to me I will tell the law”, and -
“Q. Did he say anything to you after you said that to him?
A. Yes, he said that, yes he said, ‘I did not penetrate’, that’s what he said, yeah. ‘I did not penetrate, it was’, yeah I mentioned yesterday it was all.
Q. Q. Just tell us, you said he said, ‘I did not penetrate’?
A. Yes.
Q. Did he refer to who or what?
A. The little girl, yes.
Q. Did he go on to say anything else concerning the girl?
A. You want me to say what I said yesterday?
Q. Yes, please just tell us what you recall, sir?
…
Q. What he actually said?
A. What he said, yes. The both of them were in bed together at times and the little girl would creep into the bed (a), and (b) is when sometimes mum goes to work and the girl used to stay around and then he had whatever sexual contact with her.”
The appeal against conviction
The transcript of the partial hearing in December 2006 reveals that the Court had difficulty in obtaining assistance in the exposition of the grounds of appeal. The difficulty continued at the hearing before the Court as presently constituted. The submissions were diffuse, and in what follows I have sought to encapsulate their substance as I understood it.
Ground 1: “Complaint”
The appellant submitted in his written submissions that the “handling of the aspects of complaint” at the trial was such as to have brought a miscarriage of justice. I first describe what occurred, and then go to the mis-handling for which the appellant contended.
The complainant’s recorded interview of 30 May 2001 included, after the complainant’s description of the events the subject of counts 1 and 2, that the appellant gave the complainant a lollipop and told her not to tell her mother because she would be angry with them both, and that the complainant had not told anyone “Because Mark’s been with us and if I told he would know”. It continued -
“Q223     So who is the first person you ever told about this?
A.           Mum
Q224      And do you remember when that was?
A            Two weeks ago in the bathroom.
Q225And how come, well, can you tell me what you first said to mum two weeks ago in the bathroom?
AWell, I was talking about something, I can’t remember what I said … I don’t know what I said. And Mum said, Has Mark ever tried to rape you? And I said, No. And I think it was really in … No, like that. And then she said, [complainant’s name], tell me. Mark’s gone. And then I started crying and told her that I did, that he did.”

The complainant’s mother made a statement dated 30 May 2001. It included -
“6. On the 17th May, 2001 during the evening just after [the complainant] had a bath she told me something. We were in the bathroom and I was just putting her towel around her and she made an odd comment to [the complainant’s brother] who was there also. She said, ‘Daddy will rape you.’ She just said that out of the blue, it had nothing to do with whatever she was talking about at the time. I said, ‘[complainant’s name] you shouldn’t say things like that about your dad, you’ll put him in gaol if you say things like that. Your daddy loves you.’ It occurred to me that she wasn’t talking about her daddy, her real daddy [name of complainant’s father] her real dad who lives in Melbourne. She calls Mark, Mark. I said, ‘[complainant’s name] did Mark touch you?’ She said ‘Yes Mama.’ [The complainant] then started crying.”
The statement continued with what the complainant told her mother, on that occasion and on occasions on the following days, of what the appellant had done.
As I have said, the audio tape of the recorded interview was admitted without objection. I will refer to its questions and answers 223-225 as the interview complaint, and to the relevant part of the mother’s statement (which did not go into evidence) as the statement complaint.
Early in his cross-examination of the complainant counsel for the appellant obtained her agreement that she first told her mother what had happened to her on about 17 May 2001, in the bathroom in the evening. Plainly cross-examining from the statement complaint, he asked whether she said to her brother “Daddy will rape you”. The complainant said that she thought she said something like that sarcastically, but was not sure; further questions brought that she did not really remember saying it, she might have.
The cross-examination continued -
“Q. Didn’t your mum say to you, ‘[complainant’s name] you shouldn’t say things like that about your dad, you’ll put him in gaol if you say things like that. Your daddy loves you’. Didn’t your mum say that to you while you were in the bathroom with [the complainant’s brother]?
A. Actually I think yes she did say that, I think I might have said that to [the complainant’s brother], I wasn’t really sure.
Q. Do you remember your mum saying that to you?
A. Yes.
Q. Have you told anybody else that your dad had touched you in the genital area, do you know what I’m talking about in relation to the genital area?
A. My dad.
CROWN PROSECUTOR: Your Honour, this raises a matter that should be discussed in the absence of the jury.”
It became common ground before the judge (and remains common ground) that by “dad” was meant the complainant’s father, the appellant being known as Mark.
The Crown Prosecutor submitted to the judge that “this kind of questioning” was impermissible under s 293 of the Criminal Procedure Act 1986, in that it was “putting to this witness a sexual experience with another person other than the accused”. It is convenient at this point to set out s 293 so far as its terms might be material in the appeal -
“293      Admissibility of evidence relating to sexual experience
(1)This section applies to proceedings in respect of a prescribed sexual offence.
(2)Evidence relating to the sexual reputation of the complainant is inadmissible.
(3)Evidence that discloses or implies:
(a)that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b)has or may have taken part or not taken part in any sexual activity,
is inadmissible.
(4)          Subsection (3) does not apply:
(a)          if the evidence:
(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii)is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,
(b)if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,
…
(f)if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5)          A witness must not be asked:
(a)to give evidence that is inadmissible under subsection (2) or (3), or
(b)by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6)          If the court is satisfied:
(a)that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:
(i)had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii)had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b)the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
(7)On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8)If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.”
The Crown Prosecutor supported his submission with reference to M v R (1993) 67 A Crim R 549 and R v Bernthaler (CCA, 17 December 1993, unreported).
The judge called on counsel for the appellant, and -
“HOENIG: Your Honour, the Crown are going to lead evidence of what I put to the witness from the victim’s mother. It comes straight from her statement that is that the victim said to her brother ‘Daddy will rape you’ and that witness will say she told the victim that ‘You shouldn’t say things like that about your dad, you’ll put him in gaol if you say things like that. Your daddy loves you’, referring to the child’s natural father.
HIS HONOUR: Mr Crown, is that correct, is that evidence --
CROWN PROSECUTOR: No, I haven’t led that your Honour. I intended to lead evidence of complaint about the sexual assault by this accused but not that part of it because to do so would be in breach of the section myself and when I opened to the jury I was specifically careful in what I said in relation to that.
HOENIG: However, the conversation that comprises of the complaint is a series of conversation that commences with that. Because following from that, your Honour, following from that conversation the witness says in her statement,
‘It occurred to me that she wasn’t talking about her daddy, her real daddy [name of the complainant’s father], her real dad, who lives in Melbourne. She calls Mark, Mark. I said ‘[complainant’s name], did Mark touch you?’ She said, ‘Yes mama’. [The complainant] then started crying’.
Now that’s one transaction conversation that comprises of the complaint. If the Crown wasn’t going to lead all of it I certainly would have put the rest of it in in cross-examination because of the circumstances of that conversation. The child makes an observation that relates to her father. The mother knows that the child refers to her father as daddy and her husband as Mark, then puts a question directly to the child, “[complainant’s name], did Mark touch you?’. It’s one complaint and one series of acts and one series of complaints that would have been in my submission admissible.
HIS HONOUR: Are you saying that the complaint was not a spontaneous or voluntary one but in response to a leading question?
HOENIG: Yes, yes and the nature of complaint.
HIS HONOUR: Doesn’t that mean I can exclude it if that’s the case?
HOENIG: One could exclude the complaint?
HIS HONOUR: Yes, as not being a falling within the ground rules so to speak.
HOENIG: Yes, but I haven’t frankly objected to it because of the preceding part of it because that is --
HIS HONOUR: Mr Crown, don’t these cases really represent material that hasn’t [sic] got this ambiguity of being both potentially breaching the section but also forming the conversation that was the subject of the complaint.
CROWN PROSECUTOR: No, your Honour what I’d propose --
HIS HONOUR: You can’t very well have your cake and eat it too.
CROWN PROSECUTOR: Unfortunately your Honour, in fact this very point has been raised before the Court of Criminal Appeal before about this section and its equivalents before it was amended or before it became in the Criminal Procedure Act and the Court of Criminal Appeal’s made it plain that it may appear that sometimes the section works an injustice to the accused in the sense that it restricts their right to cross-examine what would otherwise be fertile and relevant grounds.
HIS HONOUR: That might be another matter but this is a particular refinement, is it not?
CROWN PROSECUTOR: Can I indicate to your Honour this? What I propose to do was to lead evidence from the mother that something was said, bearing in mind that the child herself in the interviews does not give evidence of what exactly was said in the complaint. She simply says that she told her mother something. I intended to lead from the mother that something was said and then you asked her a question and she responded to that.
I raised, your Honour the issue of complaint with my friend before the trial commenced because I wanted to know whether he objected to it and indeed the Crown concedes that had my friend objected to the complaint because it was followed from a leading question, your Honour would be entitled to exclude it but my friend said to me that he didn’t object to the complaint evidence. There was no indication from my friend at that time nor need he give me any indication as to the tactical reasons he wanted to have that but there was no indication, he simply said I don’t object to it. It was never my intention, your Honour to lead evidence of that part because it breaches the section.
HIS HONOUR: Subject to anything further you might have to say it is my view that it should be excluded.
CROWN PROSECUTOR: In that case, your Honour I would ask it all be excluded.
HIS HONOUR: That’s what I mean.
CROWN PROSECUTOR: Yes, but we’re left now with this difficulty, the question that my friend has already put to the witness. The Crown now, your Honour is in this somewhat invidious position that a question has been put, an answer has been given. That then is floating around in the jury’s mind as to what that might mean. Might it mean that the natural father had in fact touched this complainant and not this accused, and now the Crown is unable to lead any evidence from the mother as to the conversation where the child makes it plain that it is the accused.
HIS HONOUR: I’ll simply direct the jury that they should ignore it. Do you have anything further to put, Mr Hoenig?
HOENIG: Your Honour, I’m not sure. A conversation, I mean the first question is this. It is suggested that what I actually put from the mother’s statement to the child was inadmissible and is that to be excluded?
HIS HONOUR: Yes. It seems to me inadmissible on two grounds. Firstly, that it was not spontaneous and secondly it breaches the section but if you have a reasoned argument I’m prepared to listen to it.”
After further discussion the trial was adjourned to the next day, with counsel to undertake further researches.
On the next morning -
“HOENIG: Your Honour, an objection was taken yesterday afternoon by the learned Crown Prosecutor in relation to a question I asked the witness on the basis that it infringed the prescription [sic] contained within section 293 of the Criminal Procedure Act. The learned Crown Prosecutor relied on the decision of the Court of Criminal Appeal in M, reported at 67 ACR 549, and Bernthaler, an unreported decision of the Court of Criminal Appeal of 17 December 1993. In that case the Court comprised of his Honour the President, Kirby J, Badgery-Parker J and Ireland J.
The objection taken by the learned Crown on the basis of those authorities your Honour is well-founded, although in my submission the Court was in error in relation to section 293 of the Criminal Procedure Act in its interpretation. However, the decision of M is binding on your Honour and for that reason I withdraw the question.
HIS HONOUR: All right.
HOENIG: And arising from M, the question and answer given by the child in relation to what the child told her brother in the bath, that is, ‘Be careful, daddy will rape you’, that also offends in accordance with the principles of M, section 293, and it is our joint application that that evidence be excluded.
HIS HONOUR: Yes, I make that order. Perhaps that should be mentioned to the jury.”
After discussion of another matter -
“HIS HONOUR: What is it that has to be said to the jury?
HOENIG: In respect to the evidence that has already been given?
HIS HONOUR: Yes. Could we have the wording of that just to make sure there is no confusion.
HOENIG: Yes your Honour, just pardon me.
CROWN PROSECUTOR: As described in the statement of [the complainant’s mother] of 30 May 2001, emanating from the complainant the words, ‘Daddy will rape you”, said to [the complainant’s brother], and the mother of the complainant saying, “[complainant’s name], you shouldn’t say things like that about your dad, you’ll put him in gaol if you say things like that. Your daddy loves you’.
HIS HONOUR: Just start again, the mother said to [complainant’s name]?
CROWN PROSECUTOR. The mother replies to her, ‘[complainant’s name], you shouldn’t say things like that about your dad’.
HIS HONOUR: Yes.
CROWN PROSECUTOR: ‘You’ll put him in gaol if you say things like that. Your daddy loves you’. And then there was the question that my friend asked and I will leave that to my friend.
HOENIG: ‘Have you ever complained to anyone else about your dad touching your genitals?’ That was the question that was objected to and that’s the question I withdraw.
HIS HONOUR: About ‘your dad touching your genitals’?
HOENIG: Yes.
HIS HONOUR: So that is withdrawn as well, is it, that first?
HOENIG: That will require an order from your Honour to exclude that evidence.
HIS HONOUR: Yes.
CROWN PROSECUTOR: And indeed your Honour the response given too because the portion of the statement of the mother which my friend put to the complainant was in the form of a question, ‘Did you say something like that to your mum?’, and she replied I think, words to the effect of, ‘I think something like that’, or some words like that, or the answer that she gave to my friend in response to that would need to be excluded as well.
HOENIG: Yes your Honour.
HIS HONOUR: You mean the question?
CROWN PROSECUTOR: The question and the answer.
HIS HONOUR: We had better have it played back just to make sure we have got it right.
HOENIG: Yes your Honour.
PLAYBACK
HIS HONOUR: Rather than go through all of that it might be simpler if I simply say that the evidence on that subject is excluded and they must disregard it.
HOENIG: Yes your Honour.
CROWN PROSECUTOR: Yes your Honour.
HIS HONOUR: That is to say, reference to anything to do with, ‘Daddy will rape you’.
HOENIG: Yes your Honour.
HIS HONOUR: All right, we will do it that way.
CROWN PROSECUTOR: And any comment she might have made – the question relating to having told someone else.
HIS HONOUR: Sorry?
CROWN PROSECUTOR: The question relating to having told anyone else.
HIS HONOUR: But that was never replied.
CROWN PROSECUTOR: No, it wasn’t but still your Honour I would ask that that question be excluded as an improper question.
HOENIG: That’s a question that I withdraw and I will formally withdraw that when the jury come in.
HIS HONOUR: Yes, all right, do that and then I will exclude the other.
CROWN PROSECUTOR: Your Honour, just very briefly, your Honour made orders yesterday excluding any evidence of complaint and I will be making no reference or asking no question as to particulars of complaint made.”
When the jury returned -
“HIS HONOUR: Members of the jury, it must be puzzling to you, and to a degree frustrating, when you are asked to wait for some time while legal matters are considered. So I appreciate any frustration that you feel.
I understand Mr Hoenig that you wish to withdraw the last question.
HOENIG: Yes, the question I asked that’s objected to your Honour, I withdraw that question.
HIS HONOUR: And that question was?
HOENIG: The question was to the effect whether she had told anybody else that her dad had touched her in the genital area.
HIS HONOUR: As a matter of law I am striking from the record any reference to that conversation that emerged in the evidence about, ‘Daddy will rape you’, allegedly said by the witness to [the claimant’s brother]. That reference, all of that evidence is excluded and it must form no part of your considerations.”
Counsel for the appellant asked no further questions in cross-examination in relation to complaint. When the complainant’s mother was called to give evidence, the Crown Prosecutor relevantly elicited only that she had a conversation with the complainant on 17 May 2001 and as a result went to the police. Counsel for the appellant asked her no questions in cross-examination in relation to complaint.
Neither the Crown Prosecutor nor counsel for the appellant referred in his address to the jury to the interview complaint, or said anything in relation to complaint. In his summing-up, however, the judge gave directions concerning complaint as evidence of consistency and the need to consider whether there is good reason for delay in complaint, and in the course of doing so referred to the interview complaint -
“In this particular case you know from the evidence that these matters came to light in May, not long after the accused left the home for good in April 2001 and that you may remember that in her statement to you the complainant said two weeks before he statement at the end of May that, she was asked when was it she first said anything about these things and said, ‘Two weeks ago in the bathroom’. This is at question 224. Question, ‘How come, well can you tell me what you first said to Mum two weeks ago in the bathroom?’, and her mum asked her, ‘Has Mark ever tried to rape you?’, and she said, ‘No’, and then she said, ‘[the claimant], tell me, Mark’s gone’, and then I started crying and told her that he did’, and it was in the context that he had said to her when the first alleged offence occurred that he said,
‘Never tell Mamma that we did this because she’ll get angry at you.
Q. She’ll get angry at who?
A. Me and him’.
She then said,
‘I haven’t told anyone for three years.
Q. Can I ask you how come?
A. Answer, because Mark’s been with us and if I told he would know’.
… “
Neither the Crown Prosecutor nor counsel for the appellant responded to this by submitting to the judge that the evidence of the interview complaint was not before the jury, or asked for a correction or addition to the summing-up in relation to complaint.

I come then to the mis-handling for which the appellant contended. It was not said on appeal that the judge’s directions in relation to complaint were deficient. The appellant submitted that the trial had miscarried because there should have been before the jury either the whole of the material concerning complaint, the interview complaint in the Crown case together with the statement complaint elicited through cross-examination plus the cross-examination on which counsel for the appellant had embarked by his question about telling anyone else of touching by the complainant’s dad in the genital area, or none of it. Instead, according to the thrust of the submissions, the jury was left with the evidence of the interview complaint, to which the judge made specific reference in his summing up, but the appellant had been unable to seek to ameliorate the significance which the jury might have given to that evidence, or more positively to seek to turn the occasion into one on which the complainant was brought to make false allegations against the appellant by cross-examination founded on the statement complaint.
As I understand it, the appellant’s submissions came to include that there had been error in that, although the judge ruled that all evidence of complaint should be withdrawn from the jury, there was left before the jury the evidence of the interview complaint.
I do not think that is correct. While the judge indicated at one point that “it” should all be excluded, the subject-matter was the statement complaint and “it” was evidence to be led from the complainant’s mother in relation to complaint; not complaint evidence so far as found in the interview complaint. By exclusion of “it”, all that was meant that the Crown should not, as the Crown Prosecutor had proposed, lead evidence from the mother “that something was said and then you asked her a question and she responded to that”, with the response as evidence of complaint to the mother. Hence the Crown Prosecutor said, immediately before the jury returned, that because of exclusion of any evidence of complaint “I will be making no reference or asking no question as to particulars of complaint made”. He was speaking of the evidence to be led from the complainant’s mother.
That this is how the position was understood at the time is apparent from the agreement upon what was to be withdrawn from the jury, which was explicitly directed to the “Daddy will rape you” and subsequent matters found in the statement complaint. It would be remarkable if all concerned had overlooked that the evidence before the jury included the interview complaint, when the audio tapes had been played to the jury earlier the same day. Indeed, in the discussion at the time the Crown Prosecutor adverted to the evidence of the interview complaint when he said that “the child herself in the interviews does not give evidence of what exactly was said in the complaint”. It may not have been entirely accurate of the Crown Prosecutor then to say that the complainant “simply says that she told her mother something”, since the complainant told her mother that Mark did try to rape her, but it was correct that the interview complaint did not go into any detail of what the appellant had done. Counsel for the appellant can not have been unaware that evidence of the interview complaint was before the jury. That it was intended that that evidence should remain before the jury is powerfully confirmed by the judge’s reference to it in his summing-up, and the absence of comment or objection by the Crown or counsel for the appellant.
The appellant then submitted that, contrary to the position ultimately accepted at the trial, the cross-examination upon which his counsel embarked was not precluded by s 293 of the Criminal Procedure Act; or at least that, so far as it was prohibited by s 293(3), the exception in s 293(6) had been available to him. As has been seen, at the trial no application was made by counsel for the appellant for a ruling that he had a right to cross-examine under s 293(6).
In the consideration of this submission it should be noted that the cross-examination put distinct matters to the complainant, namely -
(a) that she had said to her brother “Daddy will rape you”;
(b)that her mother had said to her “You shouldn’t say things like that about your dad, you’ll put him in gaol if you say things like that”; and
(c)whether she had told anyone else that her dad had touched her in the genital area.
That (a) or (b) would fall within s 293(3) is debateable. The Crown Prosecutor considered that they would, hence he was not going to lead evidence of them from the complainant’s mother. Counsel for the appellant came to agree, specifically as to (a) but less clearly as to (b). It seems that counsel for the appellant considered that (a) implied touching of the complainant by her dad in the genital area – no other basis for counsel moving on to (c) is evident.
If it were necessary to decide, I do not think that (a) disclosed or implied that the complainant had or may have had sexual experience or a lack of sexual experience, or had or may have taken part or not taken part in any sexual activity. There was sexual knowledge of rape, and conceivably implication that daddy had raped someone, but the step to implication of rape of the complainant is a large one and I do not think it should be taken. M v R, which was followed in R v Bernthaler, does not in my view require taking the step. The evidence there in question was evidence that the complainant had told the accused that her father and brothers were having sexual intercourse with her. Counsel’s purpose in that case was to establish that the complainant was a “fantasiser”. It was held that the evidence was within the proscription of the then equivalent of s 293(3), and that even if the evidence as a whole would have shown fantasising it was proscribed because it disclosed or implied lack of sexual activity. The evidence in question was much more direct than (a) in the present case. As for (b), it followed on from (a) and did not independently infringe the proscription in s 293.
Although at first contending without discrimination that all of (a), (b) and (c) were not caught by s 293, the appellant eventually accepted in the appeal that (c) fell within s 293(3). It plainly did, and if (as may have been the case) counsel for the appellant had intended to suggest that the complainant was fantasising about sexual assault on the part of her father and also on the part of the appellant, it was not open to lay that foundation. But (a), and (b) as a follow-on, were at least arguably caught by s 293, on an available understanding of disclosure or implication, notwithstanding what I have said in the preceding paragraph. It was not irrational that counsel for the appellant came to accept that they were. The judge was not required to rule on the matter. He expressed a view, but he invited further argument from counsel for the appellant. Counsel for the appellant considered the matter and conceded the point; he and the Crown Prosecutor came to a common position and agreed upon its implementation, and there was no occasion for the judge to make a ruling either to establish the position or to impose some other position.
Nothing in this “handling of the aspects of complaint” prevented counsel for the appellant from putting to the complainant or in his address to the jury that the interview complaint was in response to a leading question; the interview complaint was no less so than the statement complaint. The further object of counsel for the appellant was not made clear at the time. It was submitted in the appeal that the prejudice to the appellant was inability to bring out how reference to getting the complainant’s dad into trouble might have caused the complainant to fabricate allegations against the appellant, in order to get him into trouble; that does not seem to have been counsel’s purpose, but if there was a basis for putting that the complainant disliked the appellant and wanted to get the appellant into trouble, or was influenced by her mother to want to do so, and so fabricated the allegations against the appellant, that was still open to counsel for the appellant. It may be noted, see later as to ground 9, that no such thing was put to the mother. Putting (c) to the complainant indicates a purpose of suggesting that the complainant fantasised about sexual activity on the part of her dad and did the same as to the allegations against the appellant, but this would effectively be precluded by s 293(3): M v R.
There was no miscarriage of justice in counsel for the appellant acting on the correct view that (c) was inadmissible. Where counsel for the appellant came to the view, which can not be regarded as irrational, that s 293 made (a) and (b) inadmissible, and acted on that view in the exclusion of the evidence his questions had brought out and in not pursuing his line of cross-examination, again I do not think that there was a basis for a miscarriage of justice. In the course of the trial it fell to counsel for the appellant to make many decisions, including deciding what matters he could and should object to or pursue in cross-examination of the complainant. He did so in relation to complaint. If fabrication in order to get the appellant into trouble was in his mind, he could have pursued it, but it is understandable that he decided not to pursue it, and decided (correctly) that pursuit of fantasising was effectively precluded, and so left complaint alone rather than highlight it in the jury’s minds.
As I have indicated, the appellant’s submissions included that the exception in s 293(6) had been available to him. It is improbable that counsel for the appellant failed to consider s 293(6) at the time. Perhaps counsel thought that the precondition in s 293(6)(a) would not be made out, satisfaction that it had been disclosed or implied in the case for the prosecution that the complainant had or may have had or not had sexual experience, or taken part or not taken part in sexual activity, within the meaning of the paragraph. Save so far as the interview complaint may have done so, in the evidence to the time of cross-examination of the complainant no such disclosure or implication is evident; it is not necessary to reach a final conclusion on whether “in the case for the prosecution” goes beyond the evidence led in the prosecution case, but it would be odd if it extended to (for example) material in statements such as the statement complaint which it came to be known the prosecution did not propose to lead. Perhaps counsel thought that the precondition in s 293(6)(b) would not be made out, satisfaction as to unfair prejudice to the complainant - and it may be noted that the prejudice must be from inability to cross-examine in relation to the disclosure or implication, perhaps indicating that the disclosure or implication was in material deployed in the prosecution case. This is not an occasion to explore the meaning and application of s 293(6), particularly when the appellant did little more than assert its availability. Whether or not to apply for a ruling that he had a right to cross-examine under s 293(6) was another of the decisions to be made by counsel for the appellant. It is understandable that he decided that application should not be made, and again there was not a basis for a miscarriage of justice.
Although not so put, the appellant’s submissions could more correctly have been to the effect that there was a miscarriage of justice because, within the principles more fully discussed when I come to grounds 5 and 11A, his counsel so conducted his defence in relation to complaint that a fairly open chance of acquittal was lost. If the submissions had been so put, counsel’s conduct would have lain in the ultimate acceptance that s 293 precluded the cross-examination on which he had embarked, in failure to invoke s 293(6), and permitting the situation of part of the material concerning complaint, rather than all or none of it, being before the jury.
Grounds 5 and 11A were confined to the conduct of counsel in relation to the appellant giving evidence. If ground 1 had been presented within the principles there discussed, I do not think there was a miscarriage of justice. The course taken by counsel for the appellant, given the undoubted inadmissibility of (c) and the debateable admissibility of (a) and (b), was on an objective assessment a rational course of avoiding highlighting complaint and concentrating, as counsel did, on inconsistencies and improbabilities in the evidence of a young girl, and I am not satisfied that it resulted in loss of a fairly open chance of acquittal.
Ground 2: “Admissions”
The appellant submitted that, although the letters were admitted only as relationship evidence, they would have been so prejudicial to him that no matter what directions were given, and without any explanation by him, he had no real chance of acquittal; in particular, it was said, the letters could have detracted from careful analysis of the complainant’s evidence of the specific occasions of sexual assault charged against the appellant. The submission was curious, in that an integer of the prejudice was the appellant’s failure to give evidence explaining the letters, which can hardly be a matter of which the judge could properly take account; however, that can be passed over. It was submitted that, although counsel for the appellant did not object to the letters or ask the judge to exercise an excluding discretion, the letters should have been excluded in the exercise of the discretion in s 138 of the Evidence Act, so identified but plainly enough meaning s 137, because their probative value was outweighed by the danger of unfair prejudice to the appellant.
Section 137 provides -
“137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
In contrast with s 135, which provides that a court may refuse to admit evidence if its probative value is substantially outweighed by the danger (inter alia) that the evidence might be unfairly prejudicial to a party, under s 137 the court must refuse to admit the evidence. In R v Blick [2000] NSWCCA 61 it was pointed out that s 137 did not involve the exercise of a discretion, but rather a weighing exercise as a matter of “opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge’s own trial experience”; although the judgment produced by the process was, for appellate review, analogous to the exercise of a judicial discretion (at [19]-[20]). If the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, however, there is no residual discretion (at [20]).
The appellant’s description of the letters as relationship evidence was not controverted, indeed was implicitly accepted, by the Crown. That is an imprecise label, and in order to address exclusion of the letters upon a s 137 judgment it is necessary better to understand the basis for their admission.
At common law evidence of uncharged sexual conduct between the accused and the complainant has long been admitted, as evidence relevant to place the offences alleged in their context and enable proper evaluation by the jury, and to show a “guilty passion” (better described as sexual desire or feeling of the accused for the complainant): R v Wickham (CCA, 17 December 1991, unreported); R v Beserick (1993) 30 NSWLR 510 at 515; R v AH (1997) 42 NSWLR 702 at 708.
Account must now be taken of the exclusionary rule in ss 97 and 101 of the Evidence Act. Tendency evidence, relevantly evidence of the conduct of a person tending to prove that the person had a tendency to act in a particular way, is (subject to some exceptions) not admissible to prove that tendency if requisite notice has not been given (s 97(1)(a)) or if “the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value” (s 97(1)(b)). In criminal proceedings, tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless -
“ … the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.” (s 101(2))
Evidence of a “guilty passion” has been regarded as tendency evidence, so that where the relationship evidence is not introduced only to provide context and background, but is directed to the accused’s sexual desire or feelings and through them the likelihood that the charged sexual conduct occurred, ss 97 and 101 of the Evidence Act come into play: R v AH at 708-9; R v Greenham [1999] NSWCCA 8 at [23]; Qualtieri v R [2006] NSWCCA 95 at [74].
There are difficulties in these bases for the admission of so-called relationship evidence, which has more recently come into question. The matter was discussed in Gipp v The Queen (1998) 194 CLR 106. In R v Fraser (10 August 1998, unreported) this Court (Mason P, Wood CJ at CL and Sperling J) analysed the views expressed in Gipp v The Queen, concluding at [29] that a clear ratio could not be extracted and that until the High Court decided otherwise the law as laid down in R v Wickham, R v Beserick and R v AH should continued to be applied. The matter has since arisen in the High Court, see KRM v The Queen (2001) 206 CLR 221 and Tully v The Queen (2006) 81 ALJR 391, but the High Court has not yet decided otherwise.
Evidence of uncharged sexual conduct may be given by the complainant. Possibly it could be given by a third party observer, or it could be by way of admission by the accused. In R v Wickham evidence of the accused’s admission to a police officer of earlier sexual activities with the complainant was held to be admissible “for the same reasons as” the complainant’s evidence of uncharged sexual conduct. The evidence will ordinarily be of sexual conduct on particular occasions, necessarily occasions other than those of the charged sexual conduct.
Where the evidence is by way of admission by the accused of sexual activities with the complainant, and is not attributed to particular occasions being occasions other than those of the charged sexual conduct, in my view an additional relevance can arise. Such an admission that the accused engaged in sexual conduct with the complainant, whilst non-specific as to the charged sexual conduct and not of itself sufficient to prove that conduct, is relevant not on the bases of context and background and of “guilty passion” earlier mentioned, but because when taken with other evidence the jury could regard it as relating to or at least encompassing the charged sexual conduct and supporting that the charged sexual conduct occurred. If accepted, it could rationally affect the assessment of the probability of the conduct charged against the accused (see Evidence Act, s 55). It will, of course, require an assessment of the admission, understood in its own context; for example, marked generality may mean that the admission can not properly be taken to encompass the charged conduct.
This can be illustrated from a case not involving sexual conduct, R v Centraco [2005] NSWCCA 11. Centraco was charged on three counts of obtaining money or a financial advantage by deception, by cashing cheques drawn on her employer’s bank account without authority and receiving payment of cheques drawn on the bank account and other payments deposited into her own bank account without authority. She acknowledged in a statutory declaration owing “approximately $150,000” to her employer, which was a little less than half the amount the subject of the charges, and undertook to pay it back. Was the statutory declaration admissible?

Hidden J, with whom Howie and Hislop JJ agreed, said -
“[15] In exchanges with the Bench in the course of argument, several possible bases of admission of the statutory declaration were canvassed. However, in my view, the simple answer to the problem is that argued by the Crown Prosecutor in this Court. In every trial of an accused on a number of counts it is necessary that each count be considered separately, but it is likely that there will be some evidence which is common to some or all of them. In the present case evidence that the appellant acknowledged indebtedness to her employer in the circumstances alleged by the Crown was relevant to all three counts. Particularly was this so given that the Crown case alleged a pattern of dishonesty over an extended period of time, the three counts merely representing the different methods employed. The evidence was available as an admission of a fact relevant to each of the counts although, of course, it could not have been determinative of any of them. Whether the amount of the acknowledged indebtedness corresponded with the amounts the subject of any one or more of the counts is not to the point. In that regard, it should be remembered that, even on the Crown case, the statutory declaration was made out before the appellant's alleged defalcations had been formally investigated, at a time when the full extent of them might not have been known.
[16] From the passage of the summing up quoted above it is apparent that this is precisely how the evidence was left to the jury. In particular, his Honour explained that it was relied upon by the Crown as a "general admission" in respect of the three charges, that it did not relate to any particular charge and that, of itself, it was incapable of proving any of them. Earlier in the summing up he had given an appropriate, indeed emphatic, direction about the need for separate consideration of each of the three counts. The statutory declaration was admissible for the reasons explained to the jury by his Honour and it does not appear to me that there was any danger of the jury using it impermissibly as tendency evidence.”
In R v Hagarty (2004) 145 A Crim R 138 the complainant’s father gave evidence that the accused admitted to sexual molestation of the complainant. This was treated as relationship evidence led not as tendency evidence, with approval of a direction that the admission could be used “as corroborating or backing up [the complainant’s] evidence that there was an improper sexual relationship between herself and the accused”. In my view, the label of relationship evidence is better avoided, and the evidence had independent relevance for the reasons last described.
In the present case the letters were relevant as evidence which, while not determinative of the particular aggravated indecent assault at Numbugga the subject of count 1 or specifically any other of the ten counts, could support the occurrence of the conduct charged in those counts. They were in a different position from evidence of sexual conduct on an occasion other than those charged, tendered to provide context and background or reveal sexual desire or feeling. They could have been tendered for one or other, or both, of those purposes. The appellant’s admissions did more, and could be tendered as what Hidden J described as “a general admission” in respect of all the charges.
That appears to have been how the letters were tendered at the trial. The complainant’s evidence of uncharged sexual conduct was tendered as providing context. The letters were tendered, in the Crown Prosecutor’s words to the judge next set out, as “corroborative evidence of the complainant’s testament”. Since a similar question arises as to the Weerawardena evidence, for convenience in the following paragraphs I address the tender of both the letters and the Weerawardena evidence.
After the jury was empanelled the Crown Prosecutor informed the judge in their absence -
“CROWN PROSECUTOR: The Crown case involves two pieces of evidence in particular in addition to the complainant’s interviews. They are, firstly, the evidence of the minister of the Christian Church by the name of Ian Weerawardena from Victoria. That evidence, in a nutshell your Honour, is of the person Mr Weerawardena having a meeting with the accused in June 2001 where he puts to him that he has been informed that [the mother’s] child has been molested by the accused and he wants to know the truth of the matter, to which the accused nods his head in agreement when it is put to him did he molest the child.
The second area of evidence is a series of four letters that the accused wrote to the mother of [the complainant] in a period stretching from 11 June 2001, in fact starting prior to that but the ones of interest to the Crown are for 11 June 2001 till 1 April 2002. In those letters there are passages which the Crown says amounts to an acknowledgment of sexually improper behaviour and the complainant is referred to in at least one of those letters, or in fact in two of those letters, and the Crown says that that evidence is not admissible as to specific counts but, rather, it is corroborative evidence of the complainant’s testament.
Again, your Honour, it has been indicated to me by my friend that there is no objection to that evidence and I indicate that on the record your Honour because I intend to open on it.
They are the matters that I indicate to your Honour at this stage.”
In his opening address the Crown Prosecutor outlined evidence to be heard from Mr Weerawardena and read passages from the letters. He said that the evidence was important, but did not otherwise explain its relevance.
Later in his opening address the Crown Prosecutor said -
“The final thing I want to tell you about is this, and his Honour will have much more to say to you about it later, you’ll hear when you listen to the tapes of the child’s evidence, or the tapes of her interview with the police, you’ll hear her talk about a number of other things that happened of a sexual nature between her and the accused which, if you look at the indictment, well they don’t appear as charges on the indictment. The prosecution puts that evidence before you as what we call relationship or context, that is these weren’t ten incidents that happened out of the blue, they happened in a context of a relationship in that sense between the accused and [the complainant] where this type of activity was happening very frequently. So it’s lead for you to be able to understand the context in which these particular charges are before you and so you understand how they come about. But you can’t use that evidence as proof if you find it happened, as proof of these individual charges. As I said his Honour will tell you much more and give you directions about that evidence at a later date.”;
In this opening the letters and the Weerawardena evidence were treated differently from the complainant’s evidence of uncharged sexual conduct. The latter was treated as relationship evidence; the letters and the Weerawardena evidence were not.
For such light as it sheds on the tender of the letters and the Weerawardena evidence, in his address to the jury after the conclusion of evidence the Crown Prosecutor also treated separately with the uncharged sexual conduct in the audio tapes and the letters.
At an early point the Crown Prosecutor said -
“Ladies and gentlemen you also heard evidence on those interviews that lots of other things happened. You remember there was touching with the hand alleged. There were many more times according to [the complainant] when incidents such as forcing her to masturbate him occurred, and you remember I said to you at the beginning of this trial about that evidence, it doesn’t relate to any of the charges, and you can’t use, even if you’re satisfied that those other things occurred, you can’t use that material to prove or to be satisfied that he committed these counts on the indictment. What that evidence there is ladies and gentlemen is to show the context in which all of these counts in the indictment happened.
Let’s suppose ladies and gentlemen that there are only two counts in the indictment and not 10, and this young girl were to say to you that her stepfather had licked her vagina on one occasion and put his penis in her mouth on another occasion. You might be entitled to think my goodness, out of the blue where did this come from? It would seem to you perhaps very odd that these isolated incidents happened. But what this other evidence goes to show ladies and gentlemen is to put into context the 10 charges and to say well look this isn’t all that [the complainant] says happened. They weren’t just 10 isolated incidents that happened, it was a whole context of a whole relationship between them involving numerous episodes of this type of sexual impropriety, and that’s the basis on which that evidence is put before you.”
Later in his address the Crown Prosecutor said that the complainant’s evidence “doesn’t stand alone”, and a little later that “the real reason in my submission or the real strength in my submission to you that you can accept what [the complainant] says happened comes with Reverend Weerawardena and with the letters, and I now turn to look at those”.
The Crown Prosecutor addressed on the Weerawardena evidence, describing it as admissions not of specific charges on the indictment or specific counts but of sexual impropriety with the complainant. He then addressed on the letters, asking the jury to “look carefully at these letters and focus on what the accused particularly says about [the complainant]”, and said -
“Ladies and gentlemen, in the accused’s own words he admits to [the claimant’s mother] and to you that he’s been engaged in sexual impropriety. If you put what he said to Mr Weerawardena together with what he said in the letters there can be no doubt ladies and gentlemen that he was engaged in a sexual relationship with [the complainant] and had committed sexual impropriety. But that does not prove each of those counts on the indictment. The effect of that evidence ladies and gentlemen is to corroborate or to strengthen, to support the credibility of [the complainant] when she talks to you about there being this context or this relationship of sexual impropriety going on, and in my submission to you helps you in terms of her credit, that is how much you believe her, helps you to assess her as being credible when she talks to you about those individual things that happened as described in the indictment.”
The appellant did not submit that the letters were irrelevant, or that they were inadmissible apart from exclusion by reason of a s 137 judgment. Nor was it submitted that the judge had erred in his directions to the jury as to the proper use which could be made of the letters, or had failed appropriately to direct the jury that each of the specific occasions of sexual assault had to be proved beyond reasonable doubt. The appellant did not raise an exclusionary rule for tendency evidence, relying only on exclusion under s 137 of the Evidence Act. The Crown’s written submissions expressly asserted that the letters were “not tendered as tendency evidence and therefore did not have to meet the tests of s 97 and s 101 of the Evidence Act”. The appellant did not contend to the contrary.
The question under ground 2 was whether there was a miscarriage of justice because the letters were not excluded by reason of a s 137 judgment. In answering the question, relevance as “guilty passion” evidence did not arise at the trial. The letters were admissible because relevant not only to provide context, so far as they did so. They were admissible for their independent relevance as admissions of sexual conduct with the complainant.
Rule 4 of the Criminal Appeal Rules provides -
“4. No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”
As I have noted, counsel for the appellant did not ask the judge to exclude the letters, and leave is required.
In R v Button [2002] NSWCCA 159 (reported but not as to this at (2002) 54 NSWLR 455) Heydon JA, with whom Greg James and Kirby JJ agreed, said -
“32 In R v Abusafiah (1991) 24 NSWLR 531 at 536 Hunt CJ at CL said:
‘The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge’s attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge’s attention to that error (R v Knight, Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice.’
33 In R v Sanderson (CCA, 18 July 1994, unreported, pages 7-8) Gleeson CJ said:
‘This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of rule 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration, then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.’
34 In R v DH [2000] NSWCCA 360 at [115] Stein JA (Smart and Ireland AJJ concurring) referred with approval to what Mahoney JA said in R v Jeffrey (CCA, 16 December 1993). At pages 6-7, Mahoney JA said of the principle embodied in r 4:
‘In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing-up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … But it is important that, if a citizen is to be tried, he be tried once and for all. The evil both of objections ‘held in reserve’ and raised only on appeal and of second and subsequent trials is great.
Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4. In the end, the court must exercise the power given to it by r 4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which r 4 performs in the criminal trial process’.”
Heydon JA then cited part of para [72] from the judgment of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at 319. A more full citation is -
“[72] There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant.
[73] Whatever else may be said about this case, it is not reasonably arguable that the trial judge must have exercised his discretion in favour of limiting the evidence and that the failure to do so has probably resulted in the appellant being wrongly convicted. That being so, the Court of Criminal Appeal should have refused to give leave to argue the point.”
Accordingly it must be asked whether, although the judge was not asked to exclude the letters pursuant to s 137, this Court is satisfied that the judge must have excluded them if asked; and if that is so, there is a second question, whether the failure to exclude them probably resulted in the appellant being wrongly convicted.
It is well recognised that so-called relationship evidence carries the danger of misuse as propensity evidence, or now tendency evidence, and that evidence of a sexual relationship beyond the charged conduct may considerably influence the jury’s verdict. So the purpose of the tender of such evidence should be identified, and ss 97 and 101 of the Evidence Act and any exclusionary rule or discretion may arise. If the evidence is admitted, the jury must be carefully directed as to the use which they may make of the evidence: see recently Qualtieri v R at [72]-[81] per McClellan CJ at CL, with whom Howie and Latham JJ agreed. There was a like danger in the tender of the letters, but in weighing probative value and the danger of unfair prejudice to the appellant the probative value of the letters went beyond providing context in the manner ascribed to relationship evidence.
In my opinion, the answer to the first question is no. The letters had significant probative value, going well beyond perhaps limited probative value if only tendered to provide context or background. The judge could well have considered that, with proper directions to the jury as to the use they could make of the letters and directions that the jury had to be satisfied beyond reasonable doubt that the complainant’s evidence of the particular conduct charged against the appellant should be accepted, their probative value was not outweighed by the danger of unfair prejudice to the appellant. Indeed, in my opinion the prospect of the judge excluding the letters upon a s 137 judgment was remote; that could well be why counsel for the appellant, responsibly addressing the conduct of the defence, did not object to the letters or ask the judge to exclude them.
Ground 3: “Confession”

No application for such a direction was made by counsel for the appellant.
In the submissions about appropriate directions the Crown Prosecutor suggested to the judge that “although there is corroborative evidence … the Crown case is that the only witness that asserted the commission of the offence is the complainant and therefore a Murray type direction would be appropriate”. In R v Murray (1987) 11 NSWLR 12 this Court said that although it was not required that the jury be warned that it was unsafe to convict on the uncorroborated evidence of the person upon whom a prescribed sexual offence was alleged to have been committed -
“ … this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable.”
In R v BWT (2002) 54 NSWLR 241 at [32] Wood CJ at CL, in identifying directions falling for consideration for the summing-up in a sexual assault case, referred to the Murray direction “to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness ‘must be scrutinised with great care’ before a conclusion is arrived at that a verdict of guilty should be brought in”.
Returning to the present case, after discussion of other directions to be given counsel for the appellant made his submissions, which included -
“HIS HONOUR: I’d be giving them the warning in any event that the case depends on their fundamental acceptance of her evidence beyond a reasonable doubt and therefore it ought to be scrutinised for that reason alone with great care.
HOENIG: That’s the Murray direction. I would ask that your Honour direct that if they find because her evidence in respect of the individual counts is, and the word these days is ‘unsupported’, then it may be dangerous to convict on her evidence alone and the reason why.”
The judge said that he would “ponder that and get back to you if I have any further difficulties about it”. In the result, the judge’s summing-up included -
“There are some other directions which I have to give you. In this case the Crown has indicated that it relies upon the evidence of the complainant in order to establish each case against the accused, that she was the only witness to what was occurring and in cases where the Crown relies upon one witness the Court is bound to inform the jury that the evidence of that witness must be scrutinised with great care. In other words, before that evidence can be accepted beyond a reasonable doubt bearing in mind that it is a single person who is giving the evidence in the absence of other confirmatory evidence suggesting that some other person witnessed or heard something, then that evidence requires the jury to approach its task with great care, in other words, prepared to accept the evidence of that one witness beyond a reasonable doubt so as to conclude that the offence has taken place.”
Thus the application for a direction was explicitly for a may be dangerous direction, not a was dangerous direction. In contrast, counsel for the appellant had asked for a must be dangerous direction in relation to delay in making complaint, then agreeing on a may be dangerous direction on that matter. The corroboration direction given was that the complainant’s evidence should be scrutinised with great care.
It was not necessary that the complainant’s evidence be corroborated (Evidence Act, s 164), and the judge was prohibited from giving a general warning to the jury of the danger of convicting on the uncorroborated evidence of any child witness (s 165A(2)). Whether the complainant’s evidence was properly to be regarded as uncorroborated need not be decided: it has been said that relationship evidence, at least of the guilty passion kind, can be corroborative (R v McKeon (1986) 31 A Crim R 357; R v L (CCA, 6 April 1992, unreported)), and if what I have said about the letters and the Weerawardena evidence as general admissions be correct it could readily be seen as corroborative evidence.
However that be, in my opinion the direction given was adequate to the situation that the complainant was the only witness to give evidence of the acts charged against the appellant. Certainly a was dangerous direction was not required; that must have been the assessment of counsel for the appellant, and in my opinion it was correct. In Robinson v R [2006] 162 A Crim R 88 Spigelman CJ said at [19] that the formulation “dangerous to convict” was best avoided save in exceptional circumstances, because it was a powerful direction capable of being understood and frequently understood as in effect a direction to acquit. That would apply with force to a direction that it was dangerous to convict. Such a direction in the present case would have been excessive.
Taking into account that the evidence of the complainant was uncorroborated, in the sense that she was the only person to give direct evidence of the conduct charged against the appellant, in my opinion it remained open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. This did not, alone or in combination with the matters earlier considered, make the verdicts unreasonable.
Ground 5: “Silence”
Ground 11A: Due to counsel’s advice in the trial to the appellant that he should not give evidence and the acceptance of that advice by the appellant, the appellant was denied the opportunity of explaining matters without which explanation cost him the chance of an acquittal and caused a miscarriage of justice.
In the appellant’s written submissions was submitted under ground 5 that “with all the above-stated grounds being in play” (now meaning grounds 1, 3 and 4) and the appellant not giving evidence or explaining any of the allegations, any chance of an acquittal was realistically denied to the appellant; and that there had thereby been a miscarriage of justice.
The relevant principles have recently been summarised by Hunt AJA, with the agreement of Simpson and Rothman JJ, in Seymour v R [2006] NSWCCA 206 -
“[19] It is now accepted that a trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted his defence: TKWJ v R (2002) 212 CLR 124 at [25], [28], [31], [75], [97], [101], [103]; Ali v R (2005) 214 ALR 1 at [9], [99]; Nudd v R (2006) 225 ALR 161 at [2], [12]–[15], [24]–[25], [62], [81], [151]. These three cases may conveniently be referred to collectively as the recent High Court trilogy (as did Kirby J in Nudd v R at [40]).
[20] It is, however, important to note that such a ground of appeal neither requires nor permits an inquiry into the competence of the counsel in question; what must be established is the objective fact that there was a miscarriage of justice as a result of counsel’s conduct, in the sense that there has been a loss of a chance of acquittal which was fairly open to the accused: TKWJ v R at [13], [16]–[17], [79], [83], [107]; Ali v R at [7], [12], [18], [38], [100]; Nudd v R at [2], [8]–[12], [24]–[25], [62], [64]–[68], [81], [151], [157]. An appellant carries a heavy burden: R v Miletic [1977] 1 VR 593 at 597 (cited by McHugh J in TKWJ v R at [74]).
[21] Relevant to the existence of a miscarriage of justice in the particular trial are the issues of whether the conduct of counsel represented a legitimate choice a competent counsel could fairly make in the circumstances of that trial and whether, viewed objectively, it was a rational tactical decision in the particular forensic situation in which it was made. When that situation is examined, issues such as the forensic advantage which may have been sought and possible prejudice which may have been caused by counsel’s conduct are relevant but not necessarily decisive considerations: TKWJ v R at [16]–[17], [24]–[28], [31], [33], [81]–[85], [95], [97], [106]–[112]; Ali v R at [9], [12], [24]–[25], [98]–[99]; Nudd v R at [9]–[10], [55], [157]–[158]
[22] In TKWJ v R , Gleeson CJ said (at [16]):
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.
In Ali v R , Hayne J (with whom Gummow J agreed) said (at [25]):
An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence. That is why, in TKWJ, I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way. That kind of inquiry cannot be made. Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows that the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred. [Citations omitted]
In Nudd v R , Gummow & Hayne JJ adopted that statement of Hayne J in TKWJ v R , in saying (at [27]):
For the reasons given in TKWJ, the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about. [Citation omitted]
See also Callinan & Heydon JJ in Nudd v R at [157].
[23] Earlier, in R v Birks (1990) 19 NSWLR 677 at 685, Gleeson CJ summarised the principles relevant to a miscarriage of justice based on the conduct of counsel:
A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
…
[26] What must therefore be examined in this case is what counsel who appeared for the appellant at the trial did, and whether there could be a rational (or reasonable) basis for what he did.”
Flagrant incompetence as a qualitative investigation of counsel’s conduct is no longer a test, if it ever was. The test is the objective test described by Hunt AJA. Despite the objectivity of the inquiry emphasised in the High Court trilogy, there was evidence put before this Court which went in part to why counsel for the appellant advised the appellant not to give evidence and why the appellant did not give evidence.
Two affidavits of the appellant were read.
One affidavit purported to “outline the evidence I would have provided at my trial if I were given the opportunity to do so”. Much of the affidavit was not of that nature, but in the nature of commentary or submission on events at and evidence given at the trial; there was some evidence which the appellant might have wished to give at the trial. Only in a few limited areas did the affidavit touch upon whether counsel for the appellant was instructed as to the matters of which the appellant said he would have given evidence (as to one matter, it was said that counsel was not told of it).
In the other affidavit the appellant said that he believed that he made it clear to his lawyers that he wanted and intended to give evidence, but did not do so “at the insistence of” his counsel. He said that he told his counsel that he wanted to give evidence and had nothing to hide, and -
“18. Mr Hoenig responded to me by saying words to the following effect:
‘No you talk too much, the Crown Prosecutor will be all over you!’
‘Take my advice, don’t give evidence!’
19. I also remember having a discussion with Mr Hoenig after the case closed and before the Jury returned its verdict. During that discussion, Mr Hoenig said to me words to the following effect:
‘I still think that I made the right decision with you not giving evidence’
20. I remember being adamant about wanting to give evidence at the beginning and feel that Mr Hoenig wore me down after we had discussed the issue on a number of occasions.”
The Crown read an affidavit of Mr Ron Hoenig, the appellant’s counsel at the trial. It included -
“4. In relation to the appellant’s three page affidavit, I state that I gave the appellant very strong advice not to give evidence in this trial, but I left the decision to him. I told him that it was his trial and that I would do what he instructed me to do. He did want to give evidence, but he made the final decision not to do this just prior to the complainant being cross-examined, as this was when I needed to know what he would do.
…
6. The decision that it was best not to call the appellant was a tactical one; it was not a decision based on any of the trial judge’s ruling in the trial as I recall.
7. It was my view that the appellant would have been a poor witness. I was concerned by his instructions that it was the complainant that initiated sexual contact, and his tendency to blame everyone else for his predicament. I was concerned about that coming out before the jury.
8. Whether or not the appellant gave evidence was always a matter of flexibility depending on how the trial proceeded. Nothing eventuated that caused me to change my mind. Looking at the trial with the benefit of hindsight, shortly after the verdict, I believed the tactical decision was correct.
9. My recollection of the trial is that the complainant was inconsistent about the counts and that my view was that if she were not corroborated the appellant would probably be acquitted. The appellant’s wife was helpful to his case; she gave evidence of the complainant seeing them engaged in a sexual act, and of the complainant watching a pornographic video; and a number of other matters which assisted the appellant’s case. The Minister of Religion also went poorly in cross-examination. There were also inconsistencies, which I felt helped our case. I asked the jury to concentrate on the counts on indictment and thought that they could have acquitted the appellant on some of the counts.
10. At the end of the day it was the appellant signed letters going into evidence coupled with the Minister’s evidence, which were the core problems and how the appellant could possibly explain them away without doing more damage to his case. If he’d given evidence it would have required cross-examination of the complainant on areas that I believed would work against the appellant’s chances of an acquittal.
11. The appellant’s instructions to me were always that he had not committed any of the offences contained in the indictment, and that the only sexual contact he’d had was one occasion when his penis had rubbed against the complainant’s vagina, which he said she had initiated. It was my view that if the jury were to hear that assertion, they would not accept this, and this was a further factor in my advice to him that he should not give evidence.”
Neither the appellant nor Mr Hoenig was cross-examined.
For two interlocked reasons, in my opinion there is no substance to these grounds of appeal.
First, even without regard to the affidavit evidence there was plainly a rational basis for Mr Hoenig advising the appellant not to give evidence, which advice the appellant accepted despite his initial wish to give evidence. The letters and the Weerawardena evidence called for explanation, and even if not dealt with in the appellant’s evidence in chief were an obvious focus of cross-examination. That the appellant was likely to suffer from poor or incredible explanation, or from cross-examination legitimately moving from the generality of admitted sexual activity, attraction and weakness to particular conduct as charged against him, was of itself apparent good reason to advise that he should not give evidence. Regard to the affidavits brings the same conclusion. The conduct the subject of the appellant’s instructions in para 11 of Mr Hoenig’s affidavit, could well have come out if he gave evidence, and would have been very detrimental to him. At risk to objectivity of the inquiry, Mr Hoenig’s assessment was in accordance with the rational basis earlier mentioned, and his advice was given with the accompanying view that there were matters as referred to in his para 9 which might cause the jury to acquit the appellant on some of the counts. It was not a situation that giving evidence was the appellant’s only hope.
Secondly, the affidavit concerning evidence the appellant might have wished to give at the trial, so far as it disclosed that evidence, did not have substantial content. The matters raised were often otherwise within the evidence, or could have been brought out without evidence from the appellant, or were to varying degrees peripheral. For example, there was much description of the tent and bathing arrangements and the proximity of the roller door of the shed, leading to the assertion that the conduct the subject of count 3 could not have occurred because the complainant’s mother “would have been with [the complainant’s brother], or at least right behind him to fetch more hot water from the kitchen area … “. The facts for this inconsistency of opportunity submission were already in the evidence, and counsel for the appellant made the point, see the passage from his address to the jury earlier set out. The affidavit did not provide any real explanation of the letters, saying that when they were written “I had no idea of what I had been accused of by [the complainant]” and that they all “concerned the one issue and that was that I had allowed [the complainant] to gyrate herself on me”; the attempt so to explain them would have been damaging, and was belied by the instructions in para 11 of Mr Hoenig’s affidavit. The first Weerawardena evidence was not denied; the second Weerawardena evidence was explained as denial of a question whether the appellant had penetrated the complainant. This had not been put to Mr Weerawardena, but if it had been part of the appellant’s instructions and had been said by him in evidence it is unlikely to have assisted the appellant in the jurys’ eyes.

There is no point in attempting to record in these reasons all that might be found in the affidavit; I have considered it all. In my opinion, that the appellant did not give evidence did not bring loss of a chance of acquittal which was fairly open to the appellant.
The application for leave to appeal against sentence
The appellant made no written submissions in support of grounds 12 and 13. In oral submissions the appellant accepted that the offences were serious and “[o]ne would say eight years I suppose is within range”, and nothing was put in support of ground 12. At to ground 13, it was orally submitted that there were special circumstances, but it was not made clear what they might have been; my best understanding is that it was contended that the sorrow in the letters warranted a lesser non-parole period.
No basis has been shown for displacing the sentences for a total period of 8 years, which in my opinion were well open to the judge. At the appellant’s sentencing his counsel submitted that the need for adjustment upon release into the community and for psychiatric assistance constituted special circumstances, but the judge expressly declined to find special circumstances. I am unable to see error in the judge’s assessment.
The result
The appeal against conviction should be dismissed. Notwithstanding the exiguous support for an appeal against sentence, the application for leave to appeal should be granted in order that it may be put to rest. The appeal against sentence should be dismissed.
JAMES J: I agree with Giles JA.
HARRISON J: I agree with Giles JA
**********

AMENDMENTS:

20/06/2007 - typo in CA number in judgment - Paragraph(s) -

22/08/2007 - Citation correction - Paragraph(s) 70

LAST UPDATED: 22 August 2007