ARS v R

Ground 1: The trial judge erred in admitting into evidence the tape recording that became exhibit Y 39This ground of appeal relates to the admission of a tape recording made by the complainant of a conversation between her and the appellant, which is said by the complainant to have taken place on 20 December 2007. The substance of what was said by the appellant as recorded on that tape was accurately summarised by the Crown in its submissions (at [72]) to the following effect: that he is sorry; that he would shoot himself if it would make things better for the complainant; that he cannot make up for the past; that he was aware that he could be sentenced to 20 years for what he had done; that he asked for forgiveness; that he did not know why he had done it and that he would never do it again; that he knew that what he was doing was wrong; that he knew what he was doing was child abuse. 40After a lengthy voir dire the trial judge in a judgment of 25 June 2009 held that the tape was admissible. 41In his judgment on this issue the trial judge noted that it was the Crown case that the conversation constituted a general admission by the appellant to the conduct asserted in the count of persistent sexual abuse of the complainant and along with other evidence could be regarded as encompassing the charged sexual conduct. His Honour noted that the complainant stated that it was a true recording and no part of the conversation had been deleted or otherwise modified. 42The trial judge commenced by considering how the evidence was obtained. Given that the recording was made by the complainant (and her mother) without the appellant's knowledge or consent, his Honour held that the recording of the conversation breached s 5(1)(b) of the Listening Devices Act 1984 (now repealed). 43Having concluded that the evidence was illegally obtained, his Honour proceeded to consider whether the evidence was admissible having regard to the provisions of s 138 of the Evidence Act 1995. His Honour accepted that it was necessary for the Crown to demonstrate that "the desirability of admitting the evidence outweighs the undesirability of admitting it" (interlocutory judgment 25 June 2009, at 14). 44Section 138 of the Evidence Act states: "Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 45In considering the issues raised by s 138, the trial judge first considered the integrity of the recording. His Honour reviewed expert evidence called by each party concerning the integrity of the recording and concluded that the damage to the tape recording identified by the expert called by the appellant, Mr Garde, occurred whilst the tape was in police custody. His Honour rejected the proposition that there was a reasonable possibility that the tape was edited (interlocutory judgment 25 June 2009, at 34). 46His Honour then concluded that contrary to the evidence of the complainant and her mother (GW), GW was likely to have assisted in the recording. However, he stated it did not follow that the recording was not authentic. He came to the view that there was no reasonable evidence of the editing of the recording (interlocutory judgment 25 June 2009, at 37). 47His Honour having concluded that the tape was not tampered with then considered the matters required to be taken into account under s 138(3) of the Evidence Act. He concluded that the evidence had strong probative value and that the evidence was important as it provided "clear and independent evidence of the detail, complexion and nature of a significant conversation touching upon the allegation of sexual assault and the nature of the relationship between the complainant and the accused" (interlocutory judgment 25 June 2009, at 41). He referred to R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 at [3] where it was held that the more serious the offence the more likely the public interest required the admission of the evidence. He concluded that the offences were of a serious kind. 48His Honour then proceeded to consider the matters referred to s 138(3)(d), namely, the gravity of the impropriety of the contravention. He found that although the complainant may have been aware that there might have been some impediment to the use of the recording in proceedings against the appellant, he could not conclude that she knew it was unlawful. 49His Honour noted that although GW stated that in some circumstances she would record a conversation even though it was illegal he could not be satisfied that at the time she participated in the recording she knew it was unlawful or was reckless as to that possibility (interlocutory judgment 25 June 2009, at 52) However, he recognised there were strong policy reasons why the law should be upheld, so as not to encourage conduct of the type in question where persons engage in unlawful investigation in circumstances where they are not then subject to the accountability afforded by the legislation. He stated that the breach was serious, noting that advanced technology enabled the alteration of this kind of evidence. He also noted that the investigation was in the hands of the police at the time of the recording and the means by which such a recording could be obtained by warrant were available upon proper application. 50So far as s 138(3)(e) was concerned, his Honour repeated his conclusion that he was not satisfied that the complainant or GW knew it was illegal to record the conversation or were reckless as to the possibility that the recording was unlawful. 51So far as s 138(3)(h) was concerned, his Honour described the fact that the police could have obtained a warrant, which would ensure the integrity of the evidence, as a significant factor in the balancing exercise. 52His Honour concluded that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way the evidence in question was obtained. He found there was no unfair prejudice to the appellant in the tender, noting that the trial involved serious criminal conduct. He noted that while there was an element of collusion between the complainant and GW in procuring the recording, the complainant was a principal party.

Ground 1: appellant's submissions 53In his written submissions the appellant accepted that the evidence had substantial probative value, though he argued that it was an overstatement to describe the evidence as a compelling admission. The appellant contended that the finding of the trial judge that he could not be satisfied that the breach by the complainant or GW occurred in circumstances where they either knew that what they were doing was illegal or were recklessly indifferent to it reversed the onus which was placed on the Crown under s 138(3)(d) and (e) and that no determination favourable to the Crown could be made under the provision. He submitted that when that finding is taken with the seriousness of the breach, the safeguards required to ensure the integrity of the evidence, and the ease with which a warrant could have be obtained, the Crown was unlikely to have satisfied the onus. 54The appellant also submitted that the trial judge failed to consider the complainant's evidence that she commenced to record the conversation on her mother's mobile phone. The evidence was that this was for less than a minute. He pointed to the fact that no recording was found on the phone, stating that this raised further issues as to the credibility of the complainant. He also submitted that this issue should have been raised in the directions to the jury. 55In oral submissions, senior counsel for the appellant properly accepted that the reasoning of the trial judge in concluding that the tape was not tainted was not amenable to challenge (T 10). However, he emphasised what he described as the incorrect reversal of the onus in considering s 138(d) and (e) and submitted that in determining what was a finely balanced decision, this factor should have lead to rejection of the evidence or that at least it indicated such uncertainty that this Court, not being in a position to assess the credibility of the complainant and GW, could not be satisfied that the trial judge acting properly would inevitably have admitted the record of interview. 56The appellant argued that this Court should be concerned that the complainant and GW had been found by the trial judge to have been dishonest about GW's involvement in the recording, suggesting that this undermined their credibility on all matters related to the recording, and particularly, undermined their statements as to whether they knew that the recording was illegally obtained.

Ground 1: Crown submissions 57The Crown submitted that the transcript was of very great importance, describing the admissions contained in it as "simply devastating" (written submissions at [71]). It submitted that consistent with what was said by Johnson J in Sepulveda v R [2006] NSWCCA 379; (2006) 167 A Crim R 108, the recording was correctly admitted. The Crown emphasised that the only requirement in s 138(d) and (e) was to take the matters in those subsections into account. It was further emphasised that it was open to the trial judge to accept part of the evidence of the complainant and GW to the effect that they did not believe the recording was unlawful, whilst rejecting the evidence that GW was not complicit in the recording. 58The Crown also emphasised that the complainant had a legal right to engage the appellant in conversation, to repeat the conversation and to give evidence about it. The Crown submitted it was not a case of unjustified bugging of a conversation between two people who were ignorant of the recording. 59The Crown submitted that the finding of the trial judge as to the integrity of the tape meant that the recording had to be regarded as an accurate representation and of great importance in what was described as a word-against-word case. It was submitted that the fact that the safeguards against impropriety were bypassed had less weight in the circumstances where there was a finding that the recording had not been compromised.

Ground 1: consideration 60In Sepulveda v R supra, this Court considered the application of s 138 of the Evidence Act to an illegally recorded conversation between the appellant in that case and a person he was alleged to have sexually assaulted. Although it was found in that case that the purpose of the recording was to assist the police in the investigation of the offence and not to blackmail the appellant, the evidence appeared to be silent as to whether or not the complainant knew that what he was doing was unlawful. 61In the course of his judgment Johnson J, with whom the other members of the Court agreed, made the following comments at [149]: "It is necessary to consider whether the recording was admissible under s 138 Evidence Act. The findings of fact of the trial judge concerning JD's purpose and motive in making the recording are relevant. At both trials, the contents of the recording were held to be highly probative and it was held that there was no unfair prejudice to the Appellant in the tender of the recording. The trials of the Appellant involved serious criminal charges. This was not a case where a covert recording was made by a third party of a conversation between two other parties. JD was a principal party to the recorded conversation. JD (a layman) undertook the recording of his own initiative and was not acting as an agent of the police. It was his evidence that he intended to take the recording to the police and, in due course, he did so. The evidence obtained was of high probative value and of great importance in the proceedings. If the trial judge had come to exercise the s 138 discretion and to have regard to the factors in s 138(3) of the Act, then, given his Honour's findings of fact, the Crown would have demonstrated that the recording ought be admitted under s 138. In my view, such a conclusion would have been reached even after full weight was given to the statutory purpose underlying s 5 Listening Devices Act 1984. The trial judge would have been satisfied that the desirability of admitting the evidence of the recording outweighed the undesirability of admitting evidence obtained in the way in which this evidence was obtained." 62In the present case it was not suggested on the appeal that the recording was made for any purpose other than to assist in the prosecution of the appellant: the complainant gave evidence that she recorded the conversation so that people would believe her accusations against the appellant. Although the material on the recording could not be said to be direct admissions of any of the charged or uncharged acts, the recording has considerable probative value for the reasons elaborated in my consideration of ground 2. Having regard to the findings of the trial judge that the integrity of the tape was not compromised, it seems to me consistent with the approach in Sepulveda supra that his Honour was correct in finding that the Crown had established that the desirability of admitting the evidence outweighed the undesirability of admitting it having regard to the way it was obtained. 63Nor do I think the trial judge's reasons were infected by the error of reversing the onus of proof in the manner contended for by the appellant. What is required by s 138(3) is that the matters referred to in it be taken into account. In the present case, his Honour expressly gave consideration to ss 138(3)(d) and (e). His statement to the effect that he could not conclude that either the complainant or GW knew the taping was unlawful or were recklessly indifferent to that consequence was made in the context of consideration of those subsections. 64Second, his Honour was conscious of who bore the onus of proof of establishing that the desirability of admitting the evidence outweighed the undesirability of admitting it. He expressly stated that the onus was borne by the Crown (see [43] above). What he said later must be considered in that context. It does not seem to me that his later remarks the subject of this ground of appeal meant that he reversed the onus or, in some way, placed an evidentiary burden on the appellant to establish any matters arising under s 138(3) which were in dispute. 65Third, and aligned with what I have said above, s 138(3), in my opinion, does not require a positive finding one way or another that the complainant or GW acted unlawfully or recklessly. If the trial judge was unable to reach a conclusion one way or another on this issue, he would be entitled to proceed on that basis in considering the matters raised in s 138(3)(d) or s 138(3)(e). It would result in the matter not being taken into account one way or the other in considering the gravity of the offence for the purpose of s 138(3)(d), and render s 138(3)(e) an essentially neutral factor in the evaluation process. 66Finally, even if contrary to the views I have expressed above, the trial judge erroneously proceeded on the basis that the appellant bore the onus of establishing that the complainant and/or GW acted unlawfully or recklessly, I am of the view that the ultimate decision to admit the evidence was correct. Even if the complainant and/or GW knew that recording the conversation was unlawful or were recklessly indifferent to that fact, in my opinion, it was still appropriate to admit the recording. The recording was of a conversation to which the complainant was a party, having regard to the nature of the case it was of significant probative value, the offence was a serious one and the evidence established to the satisfaction of the trial judge that the tape had not been tampered with. In those circumstances, it seems to me that irrespective of the knowledge or reckless indifference of the complainant and GW to the question of illegality, the recording was correctly admitted under s 138. 67It does not seem to me that this conclusion is affected by the failure of the trial judge to consider the complainant's evidence that she commenced to record the conversation on her mother's mobile phone. Whether or not it raised an issue as to the complainant's credibility having regard to the finding of the trial judge on the question of the authenticity of the tape, it does not seem to me to affect the question of admissibility. 68For these reasons, in my opinion, ground 1 has not been made out.

Ground 2: The trial judge failed to deal adequately and erred in his direction in relation to the tape recorded conversations

Ground 2: appellant's submissions 69In his written submissions the appellant contended that both the Crown and the learned trial judge failed to properly consider that the evidence sought to be tendered was in fact tendency evidence or being used for a tendency purpose. He submitted first that to the extent that the material was being used as an admission, the jury should have been directed that they needed to be satisfied beyond reasonable doubt that the content of the recording amounted to an admission. Further, he submitted that the evidence was in fact being used as tendency evidence, namely, as demonstrating a sexual interest in or a propensity to sexual misconduct with the complainant and that the jury should have been directed that they needed to be satisfied beyond reasonable doubt that the conversation amounted to an admission of that tendency before they could use it. He emphasised that the need for a clear direction was particularly important given the nature of the charges, and that evidence of general misconduct over time was not evidence in support of count 1 or the subsequent alternative counts in the indictment. 70The appellant submitted that the jury should have been directed to the effect that the Crown asserted the evidence was an admission by the appellant that he had a tendency to act in a particular way, that is to engage in sexual misconduct with the complainant and to have a sexual interest in her. They should have been directed that they could only use the evidence for a tendency purpose if they were satisfied of the tendency beyond reasonable doubt. 71So far as the recording was concerned, the appellant submitted that the jury should have been directed that if they thought there was a reasonable possibility that the tape was not authentic they should not have regard to its contents. 72The appellant also submitted that the jury should have been directed as to the purpose of the legal framework of the Listening Devices Act and that failure to comply with that Act impacted on the appellant's ability to test the authenticity of the recording. He submitted that the trial judge was required to warn the jury that the appellant was placed at a forensic disadvantage. 73In his oral submissions, senior counsel for the Crown submitted that the trial judge's direction that the Crown argued that the recorded conversation amounted to a general admission of improper sexual conduct towards the appellant (SU 87) and his direction that if the jury found that the recording amounted to a general admission it could properly support the occurrence of the conduct (SU 88), were incorrect. He submitted that this demonstrated a misunderstanding of how the evidence would be used, namely, as tendency evidence. 74In relation to the direction concerning the authenticity of the tape recording, senior counsel for the appellant referred by way of analogy to what was said by this Court in R v Slattery [2002] NSWCCA 367 at [93]-[94], concerning the need to give a warning to the jury of the forensic disadvantage faced by the accused in that case as a result of his inability to examine a weapon for the purpose of rebutting certain ballistics evidence. He submitted that the jury should have been warned of the disadvantage to the appellant caused by the illicit way in which the recording was obtained, and that the safeguards provided for in the Listening Devices Act had not been complied with. In these circumstances, he said it was not sufficient simply to tell the jury that if they thought there was a real possibility that the evidence of Mr Garde (the expert called by the appellant) favouring the appellant, when taken in conjunction with other evidence, may be correct, they should proceed on that basis.

Ground 2: Crown submissions 75In its written submissions the Crown emphasised that the evidence was not tendered as tendency evidence and that the Evidence Act defines tendency evidence by reference to the purpose for which it is tendered (see Evidence Act dictionary; L'Estrange v R [2011] NSWCCA 89 at [59]). However, the Crown accepted that the fact that the evidence has not been admitted on a tendency basis does not avoid the risk it will be used by the jury for that purpose. 76Further, the Crown submitted that the prosecution did not seek to use the evidence for the purpose of tendency reasoning. The Crown submitted that the prosecution opened and closed the case on the basis that the evidence constituted a general admission and the trial judge summed up on this basis. The Crown submitted that this was consistent with the approach accepted as appropriate by this Court in Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168. 77The Crown also submitted that the trial judge clearly summed up on the basis that the finding in relation to the authenticity of the recorded conversation and whether it constituted a general admission were matters for the jury. It was also pointed out in its submission that whilst the trial judge did not do so on this specific occasion his Honour had pointed out on a number of occasions that the jury had to be satisfied of factual issues beyond reasonable doubt. 78In relation to the direction concerning the tape, the Crown pointed out that such directions were not sought by the appellant at the trial and consequently r 4 applied. The Crown also pointed out that no specific anti-tendency direction was sought at the trial. 79In oral submissions, the Crown identified the admission as being that there was an ongoing sexual relationship, which could be used in support of other evidence in relation to the charges.

Ground 2: consideration 80In Rolfe v R supra, the appellant was charged with 10 sexual offences. Part of the evidence against the appellant consisted of letters written to the child's mother expressing remorse. The letters did not contain specific admissions of any of the charged offences. They were not tendered as tendency evidence. In the course of his judgment, Giles JA, with whom the other members of the Court agreed, made the following comments: "[62] 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 (unreported, Court of Criminal Appeal, NSW, No 60108 of 1990, 17 December 1991); R v Beserick (1993) 30 NSWLR 510 at 515; 66 A Crim R 419 at 422; R v AH (1997) 42 NSWLR 702 at 708; 98 A Crim R 71 at 77-78. ... [64] 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 708-709; 78; R v Greenham [1999] NSWCCA 8 at [23]; Qualtieri v The Queen (2006) 171 A Crim R 463 at [74]. ... [67] 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. [68] 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? [69] 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." 81In the present case the Crown adduced the evidence not on the basis of tendency evidence to which s 97 would apply but on the basis of a general admission. Thus in opening to the jury the Crown made the following remarks: "On 21 December [the complainant] taped a conversation that she had with the accused. She pretended during that conversation she hadn't yet told her mother what he had done to her. You will hear this tape members of the jury and you will hear what the Crown says are out of his own mouth admissions to sexual misconduct with his stepdaughter." (T 41) In closing the Crown made the following remarks: "The Crown says you can rely upon that tape as containing a confession by the accused to maintaining a sexual relationship with his stepdaughter, [the complainant]. It represents admissions to the offences in a general sense. He admits the sexual abuse on that tape, members of the jury, and that's the only meaning reasonably that you can attribute to it, the Crown submits. The content is consistent with only that. I mean there are other subjects touched upon, certainly, but the overarching meaning that you can derive from the words that are spoken is consistent only with him agreeing with [the complainant] or explaining, apologising essentially for a lot. His sexual abuse of her. ... The admissions in general, they don't prove any one particular count in the indictment, or any particular episode that's described by the complainant, but if you're satisfied that the accused is admitting to a sexual conduct and a relationship and a sexually abusive relationship with [the complainant], that evidence can properly support the occurrence of the conduct charged, and described in the indictment." (T 2577-2578) 82In his summing up the trial judge, after referring to the use the Crown submitted the jury should make of the recording, made the following comments (SU 88): "If you find that the recording amounts to a general admission by the accused of sexual conduct towards the complainant, whilst that may not refer to any particular episode, that evidence of admission could properly support the occurrence of the conduct charged and described in the indictment." 83The approach adopted by the Crown and by the trial judge in his summing up is consistent with what was approved in Rolfe v R supra. The evidence was not sought to be used as tendency evidence. The trial judge's direction as to the use to which the evidence could be put was therefore correct, in my opinion. 84There remains, of course, the risk that the evidence could be used as tendency evidence. This risk also affects evidence of uncharged acts. However, as I indicate subsequently in this judgment the trial judge made a general anti-tendency direction. 85The analysis above is not affected, in my opinion, by what was said in the High Court in HML v R [2008] HCA 16; (2008) 235 CLR 334, in considering the admissibility of uncharged acts. In that case, Hayne J, with whom Gummow and Kirby JJ agreed, made the following comments (at [156]): "Evidence that shows that the accused had a sexual interest in the complainant may also be important in assessing the credibility and coherence of the complainant's evidence generally and, in particular, the account of the events that constitute the offence as charged. But the relevance of the evidence of other sexual conduct or events lies in the proof of demonstrated sexual interest in the complainant. The relevance of such evidence in a particular case may or may not be sufficiently captured by describing it as evidence about the nature of the relationship between the complainant and the accused. To describe the evidence as 'relationship evidence' or evidence of 'guilty passion' is to assert the relevance of the evidence." 86In the present case the evidence was said to constitute an admission of past sexual conduct. Such evidence, in this case, would be relevant and important in assessing the complainant's credibility and providing evidence of the relationship in which the events occurred. It may be accepted that the fact that the admission was made and the fact they were admissions were matters to be proved beyond reasonable doubt (see HML supra). The direction of the trial judge accommodated this. In the passage of the summing up referred to at [82] above, the trial judge emphasised that the question of whether the recordings constituted admissions was a matter for the jury. In relation to the recording he made the following remarks in the context of the expert evidence called in respect of the tape (SU 91): "It is not a case of choosing between their evidence [that is, the evidence of the experts]. If you think that there is a reasonable possibility that the evidence of Mr Guard [sic] favouring the accused when taken in conjunction with all the other evidence may be correct you should proceed on that basis. In other words in determining whether the Crown has proved its case beyond reasonable doubt you are required to take into consideration the reasonable possibility that the evidence of Mr Guard [sic] when taken in conjunction with all the other evidence may be correct. If you think that there is no reasonable possibility of the evidence of Mr Guard [sic] being correct and that the evidence of Mr Ringrose is correct then you should proceed accordingly." 87His Honour had previously given a general direction that facts comprising the elements of the offence must be proved beyond reasonable doubt. 88The appellant criticised the direction concerning the expert evidence saying the jury was not given much guidance on what it meant. The appellant suggested that the jury should have been told that if there was a reasonable possibility the recording was not authentic they should reject the evidence. In my opinion, this adds very little to what the jury was in fact told. They could hardly have been in any doubt that the authenticity of the tape was a matter in issue and that the expert evidence was directed to that question. In those circumstances no further direction was required. 89Further, it does not seem to me any further direction was required as to the forensic disadvantage in which the appellant was placed by virtue of non-compliance with the provisions of the Listening Devices Act. Unlike the weapon in R v Slattery supra, the tape was available for examination and was in fact extensively examined. In these circumstances, there does not seem to be any realistic forensic disadvantage in respect of which a warning should have been given. 90Finally, none of the directions which the appellant says now should have been given were sought at the trial. In these circumstances, r 4 of the Criminal Appeal Rules applies. 91I deal with r 4 in more detail later in this judgment. However, to the extent that this ground of appeal relates to the need for further and different directions leave should not be granted as it does not seem to me that there is any miscarriage of justice. The directions seem to me to have adequately indicated to the jury the issue to which the evidence could be put and the matters of which the jury had to be satisfied before they made use of it. In this regard it must be remembered that the trial judge gave a general anti-tendency direction in the following terms (SU 63): "However, I must give you some important warnings with regard to this evidence of other acts. You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged or that he is the sort of person who would commit the types of crimes with which he is charged. You must not substitute the evidence of other acts for the evidence of the specific alternative counts or described offences on the indictment. You must not reason that because the accused may have done something wrong to [the complainant] on other occasions which are not the subject of any count he must have done so on the occasions on the indictment. You must keep in mind at all times the very limited basis that you, the jury, can take that evidence into account. You need to focus your attention on the evidence that bears on each specific charge in the indictment. Your decision as to whether the Crown has proved the elements of each offence beyond reasonable doubt must be made on the evidence that is led in relation to each of the counts separately." 92For these reasons ground 2 of the grounds of appeal has not been made out.

Ground 3: The trial miscarried because of the Crown submission, which was not corrected, to the effect that the appellant's evidence in relation to the recording being made on 11 December 2007 was evidence of deliberate manipulation of evidence for an ulterior purpose 93This ground relates to the following remarks made by the Crown in the course of his closing address: "Before going into the details of why the Crown submits to you that the conversation must have occurred on 20 December as [the complainant] described, another question you might be considering is why there has been this assertion of 11 December? The Crown says the reason you might think this assertion has been made by the accused is because the additional editing time, it would create in your mind. If it happened on 20 December, and I'll come to some evidence about this in a moment, and [GW] tells the police about it the very next day including some content of it, she's only got that evening period within which to do what, on the accused's version, is a very significant alteration of this conversation. So by placing it on 11 December, the Crown says the accused is trying to create incorrectly and something that you will be concerned about, a lengthier period during which editing could have occurred. So 10 days, rather than less than a day, if you accept that the conversation took place on the 20th. If you were to find that the recording took place on 11 December, then you would need to reject the evidence of [the complainant] and GW about this and of course that might lead you to question their credibility on other matters. That might be another reason why this suggestion has been made." (T 2586) 94The appellant submits that this comment invited the jury to reason that the only reason the appellant raised the issue of the call being made on 11 December 2007 was to create an opportunity for the editing of the tape. He said that the submission was akin to consciousness of guilt reasoning and would have been taken as a kind of perversion of the course of justice. 95In his oral submissions, senior counsel for the appellant accepted that a consciousness of guilt direction was given. He also accepted that the essence of his complaint was the absence of a direction correcting the impression the submission may have made. 96The Crown submitted that there was an issue as to whether the recorded conversation took place on 11 December 2007 or 20 December 2007, although the jury did not need to resolve this if they accepted the integrity of the tape. It was submitted that all the prosecutor was doing was making the point that the jury may have wondered why the date was important and the reason was that it would enhance the appellant's submission that there was more time for editing the tape. The Crown pointed out that the prosecutor told the jury that if the conversation took place on 11 December it would create credibility issues for the complainant and GW on other matters. 97The Crown also pointed out that the prosecutor did not say it was a lie as evidence of consciousness of guilt. 98Importantly, the Crown submitted that no issue was raised by experienced trial counsel concerning the conduct of the trial nor was any direction sought in respect of it. The Crown submitted that quite apart from r 4, the absence of complaint provides an indication that the comment did not have the effect now alleged.

Ground 3: consideration 99In my opinion, the remarks made by the prosecutor, taken in isolation, went beyond what would be expected in a fair and balanced address. The remarks did impute a motive to the appellant in seeking out an argument that there was more time to edit the tape and to impugn the integrity of the complainant and GW. 100That being said, I do not think that the remarks led to a miscarriage of justice. The prosecutor did not allege that the lie was evidence of consciousness of guilt, the trial judge gave a direction in terms suggested in Zoneff v R [2000] HCA 28; (2000) 200 CLR 234 (SU 123) and the fact that no objection to the direction was taken by counsel for the appellant would tend to indicate that the remarks may well not have had the effect contended for in the overall context of the address. 101It follows from what I have said that in circumstances where r 4 applies the appellant has not established that there was a miscarriage of justice and leave should not be given to raise this ground.

Grounds 4 & 5 102It is convenient to deal with these grounds together. They are as follows: "Ground 4: The trial was unfair due to the structure of the indictment and the trial judge erred in declining to quash it or make appropriate orders in relation thereto at the commencement of the trial. Ground 5: The trial and sentence proceedings miscarried because for [sic] the structure of the indictment and the combination of errors described in the following grounds."

Grounds 4 & 5: appellant's submissions 103The appellant submitted in relation to ground 4 that the structure of the indictment was unfair in that there was a procedural bias in favour of count 1. He submitted that the presence of 13 alternative counts and seven described offences had an accumulated prejudicial effect and invited compromise by the jury. 104The appellant acknowledged that in R v Fitzgerald [2004] NSWCCA 5; (2004) 59 NSWLR 493 at [13], Sully J saw no reason why the terms of s 66EA would prevent the charging of seven individual counts, but submitted that the present indictment was far more unwieldy. He submitted that the direction of the trial judge as to the forensic disadvantage in which the appellant was placed did not cure the prejudice. 105Further, the appellant submitted that the indictment required him to respond to 20 allegations occurring between 28 February 2002 and 3 October 2007. The appellant submitted that the defence case focused on attempting to exclude the possibility that any of the incidents could have occurred. However, that process was impossible by virtue of the breadth of the indictment. 106So far as ground 5 was concerned, the appellant submitted that the validity of a charge depends on drafting an indictment and providing particulars that comply with the requirements of s 66EA(5), and that the indictment in question failed to do so. Instead it denied the appellant a fair trial, the only possible defence being a bare denial. 107Orally, senior counsel for the appellant emphasised the difficulty which arises in determining the precise basis on which the jury found the offence proved. He referred to the difficulty this raised in sentencing and the difficulty this would raise on the appeal if it was found that the jury was not entitled to find a contravention of some but not all of the charges. 108Senior counsel accepted that the overall question in relation to each of these grounds was whether the appellant received a fair trial. 109He submitted that the section did not envisage an ambit claim where the jury could pick three offences over a five-year period. He submitted reasonable particularity could not encompass a period of five years. He submitted that s 66EA(8) provided some support for this proposition.

Grounds 4 & 5: Crown submissions 110The Crown submitted that the reliance on alternative counts was completely in accordance with s 66EA(10). The Crown contended that the submission that there were too many alternatives did not amount to a defect on the face of the indictment and that no application for a stay based on abuse of process had been made. 111So far as the structure of the indictment was concerned, the Crown pointed out that the framing of the individual counts as alternatives was consistent with the structure of s 66EA, particularly s 66EA(8), s 66EA(9) and s 66EA(10). 112So far as ground 5 was concerned, the Crown submitted that it was the nature of sexual exploitation of children that the relationship continues over months and years leading to numerous cases of sexual acts. It submitted that in itself an indictment containing 10 to 20 counts is not confusing, complex or necessarily inviting compromise and that there is nothing in the legislation which required the Crown to artificially limit the number of actual acts relied upon. 113It submitted that the Crown led evidence in detail outlining the particular offences, the subject of the alternative counts, and designated incidents. It was pointed out that the appellant filed a lengthy alibi notice and both the complainant and GW were extensively cross-examined on the matters raised in it. 114In oral submissions the Crown pointed to the detailed particulars of the alternative charges which were given prior to the trial, describing the incidents by reference to the statement of the complainant and identifying the acts relied upon (Annexure C to the Affidavit of Steven Thomson, sworn on 30 August 2011).

Grounds 4 & 5: consideration 115I have set out s 66EA above and emphasised that the section itself can lead to an indictment which is inherently duplicitous and one which can place the accused in a position of significant forensic disadvantage. I indicated at [36] the need to direct the jury as to what is said to constitute each sexual offence relied upon in support of the allegations that the section was contravened. In R v Fitzgerald supra, Sully J, with whom the other members of the Court agreed, after considering the impact s 66EA had on the decision of the High Court in S v R [1989] HCA 66; (1989) 168 CLR 266, made the following comments [12]: "Leaving aside for the moment any relevant curial authority, it seems to me that the enactment of s 66EA if it really is intended to make fair by statute what the High Court held to be unfair in the absence of some such provision, entails these propositions: (1) Proof beyond reasonable doubt that a person has sexually abused a child on three or more occasions will constitute, without more, a contravention of s 66EA. (2) In particular, it is unnecessary to prove beyond reasonable doubt: (a) When, precisely, each foundational act of abuse occurred; but it must be proved beyond reasonable doubt that the dating and timing of each such act lies somewhere within a temporal span, the terminal dates of which have been laid with reasonable precision in the indictment; (b) 'The exact circumstances' of each such foundational act of abuse; but it must be proved beyond reasonable doubt that the nature of the alleged foundational act answers the description which is itself stated with reasonable precision in the indictment." 116In the present case it does not seem to me that the period during which the offences occurred was not specified with reasonable particularity. The start date and the end date for each offence were precisely stated. There does not seem to me to be a basis for limiting the period in respect of which the offences occurred if the nature and timing of the actual foundational offences are made known to the accused and ultimately to the jury. In the present case the nature of each separate offence was set out in the indictment and as the Crown submitted, particulars of the foundational offences were supplied by the Crown. So far as the complaint that the width of the indictment meant that the only defence available was a "bare denial", that must be considered in the context that the appellant evidently had sufficient detail to give an account of his movements at the time of the alleged offences and to extensively cross examine the complainant and GW on the allegations in fact made. It does not seem to me that in these circumstances the appellant was limited to a "bare denial". 117In those circumstances it does not seem to me that the structure of the indictment denied the appellant a fair trial. It follows that ground 4 of the grounds of appeal is not made out. 118What I have said above is not conclusive of ground 5 which deals with the question of whether the trial and sentence proceedings in fact miscarried because of the structure of the indictment. As the appellant submitted, the basal question on the issue is whether, as a result of the structure of the indictment, the appellant was denied a fair trial. 119The question must be considered in the context of s 66EA. The fact that the appellant was placed at a forensic disadvantage because of the structure of the section does not mean of itself that he was denied a fair trial. The trial judge recognised the existence of the forensic disadvantage and directed the jury to take that into account. He gave the following direction (SU 102): "In the circumstances I direct you that the accused is at some forensic disadvantage in the sense he may be unable to meet these allegations of sexual misconduct effectively as he might otherwise have done having regard to the ambit times in which the offences alleged to have been committed and the fact that the complainant has not been able to specify or specifically define by a particular date the occurrence of the alleged offences." 120In circumstances where detailed particulars of the indictment were provided it does not seem to me that the appellant was placed at any greater forensic disadvantage than would arise purely by virtue of the structure of s 66EA. In those circumstances, the trial did not miscarry merely because of the structure of the indictment. 121Although ground 5 of the Notice of Appeal, in its terms, incorporates the subsequent grounds it is more appropriate to deal with those grounds separately. 122The appellant's submissions also refer to the difficulties which would arise if the appeal was made out in relation to some but not all the grounds of appeal. It is more convenient to deal with this issue and the problems which arise on sentencing subsequently in this judgment. 123For these reasons, in my opinion, grounds 4 and 5 are not made out.

Ground 6: The trial judge erred in not requiring the jury to identify the three counts relied upon for count 1 or to give directions regarding clarity or certainty as to the direct counts or "described offences" about which the jury was satisfied 124In his written submissions, the appellant pointed out that once the jury had agreed on three separate offences there was no requirement for them to proceed further with their deliberations. He submitted that in those circumstances a failure to enquire meant there could be no certainty as to whether the elements of the offence were established. 125The appellant further submitted that if on appeal an error is identified in relation to any one of the alternative counts or described offences then subject to the proviso the verdict must be set aside. Even in relation to the proviso it was submitted that the Court cannot assume that the jury would have accepted other counts and cannot substitute alternative counts. 126The appellant also pointed to the difficulty in sentencing, submitting that the sentencing judge can only sentence him for that of the offences of which he was convicted and not for criminal acts in respect of which no jury determination may have taken place. 127The Crown submitted that no application of this nature was made at trial and r 4 applies. In written submissions the Crown pointed to the fact that there was no issue on the correctness of the direction by the trial judge to the jury as to the elements of s 66EA and that it should be assumed that the jury had entered a verdict consistent with those directions. 128The Crown also pointed out that generally speaking there would need to be special reasons or circumstances to make such enquiries and that in the context of the South Australian equivalent to s 66EA, the Full Court of the Supreme Court of South Australia described such enquiries as unwise and unnecessary: R v N, SH [2010] SASCFC 74 at [7]-[12].

Ground 6: consideration 129The statute does not require that the jury in delivering a verdict under s 66EA, specify the foundational offences on which the verdict was based. In these circumstances, it is difficult to see how the trial miscarried as a result of failure to question the jury on these issues. This is particularly so given that such enquiries were not sought by counsel for the appellant. Further, it does not seem to me that, assuming adequate directions on the issue, the Court was not entitled to assume that the jury had properly considered the elements of an offence under s 66EA. As I indicated there was no dispute as to the adequacy of these directions in this case. 130Further, seeking such information after the jury had delivered a verdict, although it may be of assistance on appeal or sentence (as to which, see below), could not affect the outcome of the trial. In these circumstances, the conviction arising from the verdict of the jury could not be set aside on this ground. 131Finally, the courts have consistently emphasised that generally speaking courts should be reluctant to enquire of juries on what basis they reached their verdict; R v Isaacs (1997) 41 NSWLR 374 at 379; R v N, SH supra. In the present case, for the enquiry to be of any real utility it would have to encompass not only the question of which foundational offences led the jury to convict but also which of the remainder they in fact considered and rejected. It does not seem to me desirable to make enquiries of the jury in this fashion. More relevantly, the trial judge did not err in failing to do so. 132It follows that ground 6 has not been made out.

Grounds 7 & 10 133As the matters relied on in relation to ground 10 are also relied on in relation to ground 7 it is convenient to deal with them together. 134Ground 7 is as follows: "Particularity, relationship evidence, context evidence and evidence of uncharged acts: (i) There was inadequate particularity in charged acts (ii) The trial judge erred by referring the jury to evidence of uncharged acts as evidence capable of supporting charged acts. (iii) There was a real risk that 'relationship evidence', 'context evidence' and 'evidence of uncharged acts' was misused." Ground 10 provided as follows: "The trial judge erred by directing the jury to consider uncharged acts and failed to particularize [sic] sufficiently the acts alleged in support of Count 9."

Grounds 7 & 10: appellant's submissions 135The appellant submitted that, given the evidence called in relation to the alternative counts and the described offences, the additional evidence of uncharged acts was unnecessary. The appellant further submitted that there was a real risk the jury would use the evidence of uncharged acts as evidence in support of the charged counts or as evidence of propensity. The appellant submitted that the evidence of the uncharged acts was entirely interwoven with the evidence of charged acts or described acts and unwittingly both the trial judge and the Crown referred to uncharged acts in support of charged offences. The appellant emphasised that it was not sufficient to demonstrate a general pattern of sexual misconduct, and the need to prove the actual commission of separate acts constituting sexual offences as required by s 66EA. 136In relation to count 9, the appellant referred to the fact that the evidence supporting it lacked particularity and the direction of the trial judge referred to other uncharged acts when describing the conduct in support of count 9. It was submitted that it was indicative of a level of confusion at the trial in relation to the use of charged and uncharged acts. 137In support of ground 10, it was submitted that the trial judge described multiple acts, any one of which could be considered to support a charge of assault with an act of indecency for count 9. The appellant submitted that the summing up provided no way of determining which acts were relied upon for the charged offence and which were tendered as context or similar fact evidence. 138It was submitted that the summing up described a series of acts collectively as "spooning", rather than describing single acts, and that the further conduct was described in a general manner. 139The appellant acknowledged that at the commencement of the summing up for count 9 there was an attempt to provide specificity, but stated it was not reflected in the balance of the summing up. He submitted that the summing up did not make it clear whether the incident relied upon for count 9 was or was not the first time lubricant was introduced. 140The appellant submitted that ultimately on count 9, the trial judge referred to a number of different incidents, any one of which could amount to a sexual offence. He submitted the basis on which the evidence was left to the jury allowed for the real possibility that different jurors may have had different incidents in mind when they agreed that a sexual offence had occurred for the purposes of s 66EA.

Grounds 7 & 10: Crown submissions 141The Crown referred to the directions that were given to the jury in relation to the uncharged acts and submitted that no further direction was ever sought. It was submitted that r 4 applies. The Crown also noted that the appellant consistently sought to take advantage of the relationship evidence by cross-examining the complainant, suggesting that the evidence of the complainant as to the extent of the sexual relationship showed that she was unreliable. His counsel also addressed the jury on this basis. 142The Crown submitted that having regard to the manner in which the Crown had pleaded the charge in the indictment the relevant particulars were known to the appellant, namely, the offence had occurred at Bayview during a two-month period between December 2005 and January 2006. The Crown submitted that although the incident may have given rise to an argument that there was more than one indecent assault, in reality there was one continuous act. 143The Crown pointed out that the evidence given by the complainant on count 9 referred to a specific incident at Bayview and although the complainant's answers referred to a number of occasions where similar incidents occurred she gave evidence of a particular occasion. The Crown acknowledged that certain parts of the summing up of the trial judge crossed over into the allegations on count 10. However, it was submitted that no redirection was sought and that r 4 applied. 144The Crown made certain general submissions in relation to grounds 8 to 14. In particular, it was suggested that the approach the Court should take was that if any of the grounds of appeal were made out, the Court should consider how many offences were left and whether any of the successful grounds impacted on the credibility of the complainant. The Crown submitted that if they did not and there were more than three counts left then there was no miscarriage of justice. 145A similar approach was suggested in relation to the submissions of the appellant in respect of ground 12, which said that counts 7, 12 and 13 and described offences (b) and (g) were bad for latent duplicity.

Grounds 7 & 10: consideration - rule 4 146Because the Crown submitted that r 4 applied in relation to these grounds and the subsequent grounds in which it was submitted there was no evidence fit to go to the jury or that there was latent duplicity, it is convenient at this stage to deal with the scope of r 4. Rule 4 provides as follows: "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." 147The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [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 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 ... " 148Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]. 149The essence of grounds 7 and 10 is that the trial judge wrongly admitted relationship evidence and did not give adequate directions to the jury as to the use to which it could be put. In particular, the appellant submitted that the trial judge in his directions concerning ground 9 incorporated relationship evidence and evidence of uncharged acts along with evidence of the actual offence such that there was the possibility that the jury used the relationship evidence in reaching the conclusion that the alleged offence, the subject of ground 9, was established. These seem to be matters falling with the ambit of r 4. In those circumstances, in order to obtain leave to raise the matters the subject of grounds 7 and 10, the applicant would have to demonstrate that there was a miscarriage of justice. 150The position is different in respect of those grounds of appeal which contend there was no evidence to enable particular charges to be left to the jury (ground 11 relating to count 10 and ground 13 relating to described offence (e)). 151It does not seem to me that an error in leaving a particular count to a jury could be described as an omission to direct. In consequence, in my opinion, r 4 had no application to this complaint. 152The position is more difficult so far as it relates to the question of latent duplicity (ground 12 in relation to counts 7, 12 and 13 and described offences (b) and (g)). In R v Khouzame & Saliba [1999] NSWCCA 173; (1999) 108 A Crim R 170, a case of alleged latent duplicity, Kirby J, with whom the other members of the Court agreed, said at [35] that r 4 did not apply to issues of duplicity. In saying this his Honour relied on R v Locchi (1991) 22 NSWLR 309. By contrast, in R v DH [2000] NSWCCA 360, Stein JA, with whom the other members of the Court agreed, took the view (at [20]) that r 4 could apply in such circumstances. 153Although it seems to me that any problem arising from latent duplicity could be cured by either requiring the Crown to elect or by a clear direction, on the present state of authority and, in particular, where the point was not fully argued, the Court should proceed on the basis that r 4 does not apply. The only case which directly considered the application of the rule in a case of latent duplicity was R v Khouzame & Saliba supra. R v Locchi supra concerned duplicity on the face of an indictment whilst in R v DH supra Stein JA, while stating r 4 did apply, did not elaborate on the reasons for this and ultimately found that there was no latent duplicity. His opinion in those circumstances was obiter.

Grounds 7 & 10: consideration 154As indicated earlier, the relationship evidence was submitted without objection and there was extensive cross-examination on it. It is correct that the particular sexual offences relied on for the purpose of s 66EA have to be proved and that it is not sufficient to prove the offence by evidence of general sexual misconduct (see KBT v R [1997] HCA 54; (1997) 191 CLR 417 at 422, 423, 432, 433; KRM v R supra at [16]-[17]). Likewise, it is important that the question not be left to the jury in such a way that it would be possible to reason simply from the frequency of the alleged occurrences that the appellant committed the acts complained of (S v R supra at 287). However, in the present case the trial judge gave a specific direction as to the limited use to which evidence of uncharged acts could be put. At the start of the summing up he made the following comments: "The accused is entitled as is the Crown to a separate consideration of each of the offences charged. It would be quite wrong ladies and gentlemen to say simply because the Crown has proved one of the alleged offences that it follows that the accused must be guilty of another offence or the other offences. It follows that if you find that the accused is not guilty of one of the offences he must be not guilty of the other offences. Each offence alleged must be considered separately in the light of the evidence ..." (SU 2) 155Whilst he subsequently gave the following direction: "At the time the complainant commenced to give evidence of this kind, I gave you directions how the evidence could be used and how it could not be used. It is important that I again explain to you the relevance of the evidence of other acts. At the time, I directed you that the evidence of other acts was admitted for the purpose of placing the complainant's evidence of the particular acts relied upon by the Crown to prove the offences set out in the indictment into what the Crown says is a realistic context. The purpose of placing the complainant's evidence of other acts before you was so that the complainant's allegations and the evidence about how she responded to sexual activity with the accused at the times alleged in the indictment could be understood and evaluated. The Crown submits that this evidence of ongoing acts explains why the complainant firstly behaved in the way that she did when she submitted to the accused. Secondly why the complainant was compliant in relation to the sexual acts. Thirdly why the complainant did not rebuff the accused. Fourthly why the complainant did not show distress or resentment towards the accused. Fifthly the ongoing nature of the acts the Crown submits explains why [the complainant] did not complain or tell anyone about what the accused was doing to her for many years. Sixthly why the accused was confident that she would not complain." (SU 61) 156No objection was taken to these directions. The appellant, in my opinion, has not demonstrated that any miscarriage of justice occurred as a result of the admission of the relationship evidence or the general direction given by the trial judge in respect of it. It follows that leave should not be given under r 4 to raise ground 7 to the extent it relates to the use of relationship evidence. 157Ground 10 deals with a specific direction in relation to count 9. I have summarised earlier the evidence given by the complainant in relation to this count. However, in addition, she stated that an incident of the nature in question occurred at Pittwater Road, Bayview (T 112) and also gave the following additional evidence in examination in chief: "Q. ... on Friday you were giving some evidence about some events that happened when you lived at Bayview? A. Yeah. Q. Do you remember what year it was when you moved to Bayview? A. The end of 2005. Q. Which makes you at the end of 2005 14, is that right? A. Yes. Q. You told us that there was a day when [the appellant] spoke to you about what you could do if you fell pregnant and you said you were very scared and on that occasion you also described a bottle of lubricant, is that correct? A. Yes. Q. Whereabouts did that occur? A. In Mum and [the appellant]'s room at Bayview. Q. You told us that he rubbed the lubricant on you and he said he would do that from behind. What did he do from behind? A. Rub like pour the liquid on to my breasts and my tummy and rub it in when it turned warm in between my legs and on his penis. Q. What did the lubricant look like, the bottle? A. It was a clear white, white kind of bottle. It was clear liquid. Q. How large was it? A. About this big (indicated). CROWN PROSECUTOR: About 7 or 8 centimetres. HIS HONOUR: Yes. CROWN PROSECUTOR Q. After he rubbed the lubricant on you and it went warm, what did he do? A. Then he would put his penis between my legs. Q. On this particular occasion I think you said you were in his bed? A. Yes. Q. What did he do that time? A. When he rubbed his penis in between my legs and I would put my hand in between my legs to sort of hold on to it through there and he would rub backwards and forwards and sometimes he would with his hand point his penis up into my vagina but that would hurt so I would sort of squeeze my legs together. Q. You've just described the incident in your mother's bed with [the appellant] with the lubricant. Was there only one such occasion? A. No. Q. How many times did that kind of thing occur? A. I don't know, couldn't say. Q. Was the lubricant used more than once? A. Yes. Q. You told us that there was an occasion when [the appellant] got a condom out. Can I just clarify with you, where did that occur? A. Once I remember at Bayview and once at Kennedy Place Bayview as well. Q. The first incident when you said Bayview, which home was that? A. The Pittwater Road." (T 117-118) 158The complainant thus specifically identified the first occasion when an incident, the nature of that complained of, took place and that it took place at Pittwater Road, Bayview. 159In the opening address of the Crown in relation to this count, the following comments were made: "For alternative to count 9 that is a different charge to the ones we have looked at so far, it is a charge of indecent assault, and the allegation there is that the accused put some liquid on his and the complainant's body and he rubbed his penis on her genitals, and whether or not such an act is considered to be indecent is a question for you as members of the community. I expect the evidence will be ultimately the accused ejaculated on the complainant." (T 35-36) 160During closing addresses the Crown made the following remarks about count 9: "[The complainant]'s evidence about this incident was this - 'Well, at this stage it had been going on for a long time now so it became quite natural and I knew one time Mum was not in the house, we were alone, and [the appellant] touched me like the other times with his hands down my vagina and at this stage I remember the spooning started. So [the appellant] would be lying behind me and he would start by touching my breasts from behind me and then pull down my pants from behind and put his penis in between my legs from behind me and he would hold his penis in between my legs and get me to grab it from the other side of my legs. So I put my hand through the front of my legs and moved forwards and backwards.' She said that happened around the time of Pittwater Road, Bayview. She said: 'He sometimes ejaculated in between my legs and it always really upset me, but one day when that happened, [the complainant] said to me not to worry because if I fell pregnant he could arrange an abortion and it would just be a secret and that really scared me. I was really, really scared of that.' - [the complainant] said - 'Sometimes he would get this little bottle of lubricant out of his side drawer. It was just cold and gooey. He would rub it on my breasts and my tummy and in between my legs and in my vagina and on his penis and either do that from behind.' She said, 'Once he got on top of me and put his penis in between my legs and tried to push it into my vagina, but I would squirm away and that would hurt me.' I think that evidence actually relates to the next count, members of the jury and I'll come back to that." (T 2523) 161The written directions given by the trial judge to the jury under the heading "The occasion involving lubricant - Pittwater Rd Bayview" contained the same description as was given by the complainant. A general description was given of spooning, her rubbing his penis in between her legs, him rubbing lubricant over her body and his penis, him ejaculating between her legs. 162The written directions to the jury also contained evidence about the appellant trying to push his penis into her vagina. Thus, in common with the Crown, the written directions strayed into the evidence relating to count 10. 163The oral direction to the jury was to the following effect: "Now ladies and gentlemen the occasion has been described in the trial as the occasion involving lubricant at Pittwater Road, Bayview. The complainant gave evidence of an occasion that occurred in the bedroom occupied by her mother and the accused at Pittwater Road, Bayview. She said that this occurred at a time just after she had finished year nine at school. The complainant said that by this time the acts involved what she referred to as spooning. She said that the accused would be lying behind her and would start by touching her breasts from behind her. She said that the accused would pull down her pants from behind and put his penis in between her legs from behind her. She said that the accused would hold his penis in between her legs and get her to grab his penis. She said that she would put her hands through the front of her legs and move backwards and forwards. The complainant said that when she was at Pittwater Road the accused produced a bottle of lubricant. She said that the accused rubbed the lubricant on her breasts and in between her legs and in her vagina and on his penis. She said that the lubricant was cold and gooey, she said that after the first occasion he would produce the bottle from his side drawer. The complainant said that the accused sometimes ejaculated in between her legs and that really upset her. She said that on one day when that happened the accused told her not to worry because if she fell pregnant he could arrange an abortion and it would be just a secret. She said that that really scared her. The complainant said that on one occasion the accused got on top of her and put his penis in between her legs and tried to put his penis into her vagina with his hand. She said that she did not want the accused's penis to go inside her which she never let happen and the accused never forced that. She said that when the accused would ejaculate on her tummy and over her legs he would get a towel for her to wipe herself and she would have a shower because that would really scare her. She said she was really scared of getting pregnant." (SU 34-35) 164It is correct that both in relation to the written directions and the summing up, the trial judge went beyond the actual elements of count 9 and strayed into the evidence in relation to alternate count 10 and generalised evidence in relation to similar incidents. However, the evidence, the Crown's address and the summing up refer to the incident at Pittwater Road, Bayview, and what was said to have constituted the offence. In circumstances where the occasion of the offence and the elements of the offence were exposed to the jury, albeit in conjunction with other evidence, the appellant, in my opinion, has not established a miscarriage of justice. In these circumstances leave should not be given under r 4 to raise this ground. 165It follows that grounds 7 and 10 of the grounds of appeal should be dismissed.

Ground 8: The trial judge erred by directing the jury to consider uncharged acts and failed to particularise sufficiently the acts alleged in respect of count 4 166The appellant submitted that the directions given by the trial judge in respect of count 4 did not direct the jury to the particular evidence in support of that offence but rather invited the jury to accept generalised evidence of sexual acts instead of a specific act. 167He submitted that the evidence of the complainant was also in generalised form and did not describe a specific act capable of amounting to sexual intercourse. He submitted that the evidence of digital penetration was general and not necessarily linked to the incident. He stated the first incident in which the complainant gave evidence of the appellant making her touch his penis made no reference to sexual intercourse and that subsequent evidence she gave did not relate to a specific incident. The appellant also tentatively suggested there was insufficient evidence for this offence to be left to the jury, but this did not form part of the grounds of appeal. 168The Crown submitted that the effect of the complainant's evidence was that she recalled the first time that she touched the appellant's penis and gave an account that on this first time he also placed his fingers inside her vagina. It was submitted that this was consistent with the opening by the Crown Prosecutor. 169The Crown acknowledged that the direction of the trial judge contained aspects of ongoing relationship evidence but submitted that having regard to the directions he made in relation to the use to which that evidence could be put, his references to relationship evidence did not give rise to problems of the nature identified in S v R supra. 170The Crown also referred to the fact that no objection was taken to the direction of the trial judge at the trial and submitted that in those circumstances r 4 applied.

Ground 8: consideration 171Because of the nature of the submission it is necessary to set out the evidence of the complainant on this count in full: "Q. What happened when the touching changed? I think you said it progressed. What did it progress to? A. After a while when - the first time I remember this happening was in mum and [the appellant]'s bed at [the farm] and [the appellant] was touching me like before and he moved my hand on to his penis, on the outside of his pants, and at that time I remember moving it away, just being caught unaware, not liking that, and then eventually that became normal and it became a part of it as well. Q. This first time that you recall that happening, do you know how old you were, how long after the touching it first started happening? A. Seven or eight months to a year maybe. Q. Do you know whether you were still in year 6 or whether you had gone into year 7? A. I think it was around the time of year 7. Q. You said that he touched you like he did before. I need to ask you what it was that he did when he touched you on the first occasion when he had you touch his penis? A. It would start with his hand on my knee moving up my thigh, usually touching on the outside of my underwear, at first on my vagina and then underneath my pants, touching on and in, stroking with his fingers. Q. Did you ever feel pain when he touched you in your vagina on any of these occasions? A. After a while as it became more normal he started to put his finger further in my vagina and sometimes that would hurt, the first couple of times that really hurt and I would squirm away and it would stop and, yeah, that became more normal as well. Q. Do you know where your mum was when [the appellant] made you touch his penis that first time? A. No. Q. She wasn't- A. She wasn't there. Q. What did his penis feel like, can you remember? A. Well, the very first bit was on the outside, and then after a couple of times he would take his pants down and say to me, 'Touch my cock,' and would move my hand to his penis where my hand would be wrapped around his penis and it just felt like skin. Q. How did you feel? A. Uncomfortable at that. Q. Did you say anything to him about feeling uncomfortable? A. I remember pulling my hand away the first couple of times and sort of mumbling, 'No,' but I've never spoke." (T 94-95) 172The questions and answers, particularly the first and fourth, seem to make it clear that what the complainant was saying was that on the first occasion the appellant made her touch his penis, digital penetration also occurred. It is in that context that the address by the prosecution and the summing up by the trial judge needs to be considered. 173In opening the Crown made the following remarks: "For number 4, an alternative to count 1, the act relied upon is digital penetration again. On that occasion I expect the evidence will be that the accused also placed the complainant's hands on his penis and had her manipulate it." (T 35-36) 174In the closing address, the Crown made the following remarks: "The evidence in relation to count 4 which is an alternative to count 1 is a charge of sexual intercourse with a person between ten and 16 who is under authority. ... She said, 'It would start with his hand on my knee, moving up my thigh, usually touching on the outside of my underwear, at first on my vagina and then underneath my pants, touching on and in, stroking with this fingers.' And it's penetration that the Crown relies upon for this count." (T 2516-2517) 175In his summing up, the trial judge referred to the incident as involving digital penetration as well as the complainant touching the appellant's penis. In his written directions headed "The occasion when the accused made her touch his penis at [the farm]" he stated the complainant described a particular occasion when she said that the appellant made her touch his penis. He said that the complainant stated this was around seven months to one year after the first incident at the farm and was around the time she was in year 7. He referred to the evidence in these terms: "The complainant said that from that time the touching of his penis 'became part of it as well'. She said that the accused would start with his hand on her knee moving up her thigh usually touching her vagina on the outside of her underwear and then underneath, touching on and in her vagina stroking with his fingers." (Written Directions 7) 176In my opinion, taking into account the evidence of the complainant, the opening and closing of the Crown and the direction by the trial judge, the nature of the offence (digital penetration) and the occasion on which it occurred were identified in sufficient detail to the jury. It was appropriate to describe the touching of the penis because it was part of the circumstances in which the offence occurred and helped to distinguish this incident of digital penetration from the other incidents occurring on different occasions. To that extent, in my opinion, the direction was adequate. 177It is correct that the trial judge, in giving the direction, went beyond the circumstances going to the commission of the offence and straight into evidence of uncharged acts. However, having regard to the specific directions given to the jury as to the use that could be made of relationship evidence and evidence of uncharged acts, it does not seem to me that there was any miscarriage of justice. In these circumstances, leave should not be given under r 4 to raise this ground. 178It follows that ground 8 of the grounds of appeal should be dismissed.

Ground 9: the trial judge erred by directing the jury to consider uncharged acts and failed to particularise sufficiently the acts alleged in support of count 6 179In relation to this count the appellant submitted first that the evidence in support of it lacked sufficient particularity. He submitted that the complainant appeared to be referring to a number of incidents and there was nothing distinctive about the evidence of the alleged offence from the other uncharged acts involving "oral intercourse" alleged to have occurred during this period. In this regard he placed reliance on what was said in S v R supra at 271. 180He submitted that the manner in which the offence was put to the jury provided no particularity and clearly referred to multiple incidents and multiple locations. He stated that the evidence of the complainant was sufficiently general that it was not possible for the jury to distinguish between an alleged course of conduct involving cunnilingus and a specific offence. 181The Crown by contrast submitted that the evidence made clear the place where the offence was alleged to have occurred, the farm, and the time frame, namely when the complainant was 13. 182The Crown submitted that the complainant in fact gave evidence that she recalled the particular incident the subject of count 6, namely, the incident on the bed at the farm. It was submitted that whilst some aspects of her evidence drifted into the generalised relationship it would have been clear to the jury she was being asked about an occasion at the farm being the first occasion the appellant placed his mouth upon her vagina. 183The Crown pointed out that the written directions of the trial judge under the heading, "Occasion of oral sexual intercourse at [the farm]", did not suggest the offence in count 6 could be established as having occurred anywhere else and focused on the particular incident which took place. 184The Crown also submitted that this was another instance in which r 4 applied.

Ground 9: consideration 185I summarised the evidence in relation to count 6 earlier in the judgment. That summary shows that the time, place and nature of the offence were referred to. However, because of the submissions made by the appellant, the complainant's evidence should be set out in detail: "Q. Did the touching with [the appellant] progress; you told us that it started with him touching and then he had you touch him. Did something else happen? A. Yes. Q. What was that? A. He began to put his mouth on my vagina. Q. Can you remember the first time that he did that? A. I'm not quite sure. I think it might be in my statement. I can't remember at the moment. Q. How old were you when that sort of touching first happened? A. It was quite a while after it all first started. Maybe the end of year 7, year 8, around that time. Q. Was anything said? A. Yes. He would say to me, 'Do you want me to suck your pussy?' Q. Did you understand as a 12 or 13 year old child what that meant? A. I knew that pussy was my vagina. Q. Did you say anything to him in response when he said that to you? A. I could never, ever speak verbally. I just couldn't ever speak when all those things were said, so it would just be me letting him do that, but I guess it was me saying 'yes' or 'no', but I never said anything. Q. Why wouldn't you speak? A. I'm not sure. I just sort of got really tight. At this stage it had become normal, but there was still something not quite right about it for me in my naivety, I guess. Q. Would you tell us what he did when I think your words were that he put his mouth on your vagina. What did he do? A. He would start just by touching, and then after that he would say, 'Do you want me to suck your pussy?' And then he would get down on his knees between my legs on the bed, pull my pants down to my knees and one leg of mine would bend up so my legs would open, he would lay between my legs and hold my legs apart and put his mouth on my vagina. Q. What would he do with his mouth on your vagina? A. Lick it with the tongue. Q. Whereabouts? A. In my vagina. Q. When you say you were on the bed, are you recalling a particular incident on the bed? A. Their bed at [the farm], the boat bed and after that we moved on." (T 97-98) 186It can be seen from this evidence that the complainant identified the first time that such an incident occurred was when she was in year 7 or 8. The subsequent questions seem to me to be asked by reference to that evidence. She described what she said occurred and said one instance was on the bed at [the farm]. 187The Crown's closing address summarised the evidence to which I have referred above and included the following comments: "She described him licking in her vagina with her [sic] tongue, and it's the connection between the accused's mouth and the complainant's genitals that's relied upon by the Crown for this count." (T 2518) 188The trial judge gave written directions under the heading, "Occasion of oral sexual intercourse at [the farm]". The direction was as follows: "The complainant said that at about the time when she was 13 and still living at [the farm] the accused began putting his mouth on her vagina. She said that she was in year seven or year eight. She said that the accused would ask her 'do you want me to suck your pussy'. She said she knew the term 'pussy' was a reference to her vagina. The complainant said that the accused would commence by touching her and then after he would say, 'do you want me to suck your pussy'. He would then get down on his knees between her legs and pull her pants down to her knees. She said that her knee would be bent so her legs would be open. She said the accused would lay between her legs and put his mouth on her vagina. The complainant said the accused would lick in her vagina with his tongue." (Written Directions 9) 189Having regard to the complainant's evidence, the closing address to the jury, and importantly the direction given by the trial judge, the time, place and nature of this offence were explained to the jury in a manner sufficient for s 66EA. In these circumstances it does not seem to me that in relation to this count the problems identified in S v R supra arise. 190It follows that this ground of appeal should also be dismissed.

Grounds 11 & 13 191Ground 11 is as follows: "Having regard to the evidence there was insufficient evidence for Count 10 to have been left to the jury." Whilst ground 13 is as follows: "Described offence 'e' - Having regard to the evidence there was insufficient evidence for the described offence to have been left with the jury." 192Because these grounds raise similar issues it is convenient that they be dealt with together. 193I have set out the evidence in relation to alternative count 10 and described offence (e). The appellant stated that described offence (e) was similar to the incident the subject of count 10. 194The appellant submitted in relation to each count that there was no evidence of sexual intercourse. The evidence was that the appellant tried to put his penis in her vagina but she squirmed away because it hurt and she did not want to have sex. 195The Crown referred to the fact that part of the evidence given by the complainant in relation to alternative count 10 was that the appellant's penis touched her vagina. It was submitted that s 61H of the Crimes Act described sexual intercourse as penetration of the genitalia to any extent. The Crown submitted that in those circumstances there was evidence fit to go to the jury. Similar submissions were made in relation to described offence (e).

Grounds 11 & 13: consideration 196The trial judge would only be entitled to direct a verdict of acquittal if he concluded that there was no evidence on which a jury could properly convict: R v R (1989) 18 NSWLR 74 at 81, 83. In so doing he would have to determine all inferences favourable to the Crown: R v JMR (1991) 57 A Crim R 39. 197In my opinion having regard to the evidence of the complainant, particularly the fact that she said the appellant pointed his penis at her vagina and she squirmed away, there was not evidence fit to go to the jury on this count. Put shortly, the complainant gave no evidence of penetration whatsoever. 198To that extent ground 11 and ground 13 are made out. 199However, it must be remembered that in relation to each of count 10 and described offence (e) the trial judge directed the jury that it would be open to them to return a verdict of attempted sexual intercourse without consent. No objection was taken to this direction. For the purposes of s 66EA, an attempt to commit a sexual offence is sufficient to constitute one of the three offences necessary for a conviction under that provision.

Ground 12: counts 7, 12 and 13 and described offences (b) and (g) are bad for latent duplicity 200It is convenient to deal with each of the counts the subject of this ground of appeal separately.

Ground 12: count 7 201The appellant submits correctly that the written direction on this count said that the evidence of the complainant was that the appellant touched her breast and pulled off her pants and put his finger into her vagina. The trial judge directed the jury that the complainant had said that the appellant also put his mouth on her vagina. That direction was consistent with the evidence given by the complainant as summarised above (at [15]). The appellant also submitted that the Crown's address, referring to both digital penetration and cunnilingus, did not direct the jury to the particular act in support of the charge and stated it was these acts that the Crown relied on for sexual intercourse on that particular count. 202The Crown did not dispute these matters but said r 4 applied. The Crown further submitted that the argument was logically flawed as it would be impossible for the jury to be satisfied beyond reasonable doubt that digital penetration occurred but not cunnilingus and vice versa. 203As I indicated earlier (at [153]), in my opinion r 4 does not have any application to a ground relying upon latent duplicity. Further, it was not submitted by the Crown that the two acts encapsulated in the evidence and the directions fell within the exception to the rule against latent duplicity, which arises when the offences were constituted by continuous activity: see Walsh v Tattersall (1986) 188 CLR 77 at 91, 107. 204That conclusion is not affected by the Crown's submission that it would be "illogical" for the jury to be satisfied beyond reasonable doubt of one but not the other of the two acts said to constitute the offence. That submission, however, does have relevance in relation to the proviso which I will deal with shortly. 205It follows that the ground of appeal so far as it relates to count 7 is made out.

Ground 12: count 12 206An identical problem arose in relation to count 12. The evidence of the complainant in relation to this count is summarised in [20] above. The Crown in both opening and closing described the offence as an allegation of digital penetration and cunnilingus. The trial judge in his directions described it in similar terms. 207Similar submissions were made by each party in relation to this count. For the same reasons I have given in relation to count 7, the submissions of the Crown should be rejected. It follows that this ground of appeal so far as it relates to count 12 is made out.

Ground 12: count 13 208As with count 12 the complainant's description of the offence (see [21]), the opening and closing by the Crown and the direction by the trial judge referred to two acts which would constitute a sexual offence, digital penetration and cunnilingus. 209Similar problems thus arise as with count 12, and for the reasons given in relation to counts 7 and 12, this ground of appeal is made out so far as it relates to count 13.

Ground 12: described offence (b) 210An identical situation arose in respect to described offence (b). The evidence referred to in relation to described offence (b) described acts of both digital penetration and cunnilingus (see [24] above). The Crown Prosecutor's address and the summing up of the trial judge relating to the incident described both acts without specifying which one was the subject of the particular described offence. In these circumstances, for the reasons given in relation to count 7, this ground of appeal is made out so far as it relates to this described offence.

Ground 12: described offence (g) 211The evidence in relation to described offence (g) (see [30] above), referred again to both digital penetration and cunnilingus. The Crown Prosecutor in his address and the trial judge in his directions referred to both acts without specifying which one constituted the described offence. In these circumstances, for the same reason as given in relation to the other counts the subject of this ground of appeal, this ground of appeal is made out.

Grounds 14 & 15 212These grounds of appeal were not pressed.

The Proviso 213It follows from what I have written above, that the appellant has been successful in making out his challenges to count 10 of the indictment (ground 11), described offence (e) of the indictment (ground 13) and counts 7, 12 and 13 of the indictment and described offences (b) and (g) (ground 12). None of these findings, which are favourable to the appellant, in any way impeach the veracity of the complainant which the jury must have accepted in relation to at least three of the charged or described offences and also do not in any way impeach the remaining nine alternative counts and four described offences. 214In these circumstances it is necessary to consider whether the proviso to s 6(1) of the Criminal Appeal Act applies and whether the appeal should be dismissed on the ground that no substantial miscarriage of justice has actually occurred. 215There will have been a substantial miscarriage of justice if the appellant has lost the chance of an acquittal that was fairly open to him or, put another way, a real chance of acquittal. Unless it can be said that a jury acting reasonably on evidence properly before it and applying the correct standard of proof would inevitably have convicted, the verdict must be set aside: see Wilde v R [1988] HCA 6; (1988) 164 CLR 365 at 372. As was said in Glennon v R [1994] HCA 7; (1994) 179 CLR 1 at 8-9, to apply the proviso the court must be satisfied that in the absence of the misdirection the jury would inevitably have reached the same verdict. That is so even if the case against the appellant is otherwise a strong one. (See also Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at [41]-[47], and Carney v R; Cambey v R [2011] NSWCCA 223 at [72]-[92].) 216In the present case there is no way of knowing which counts the jury considered and relied upon in convicting the appellant under s 66EA. The Crown submitted that the proviso should be applied if, following consideration of the grounds of appeal, there were more than three counts or described offences remaining and the successful grounds did not affect the credibility of the complainant. This was based on the proposition that the jury in entering a verdict under s 66EA must have accepted the complainant's evidence and, therefore, either found or would have found some of the other alternative counts or described offences established beyond reasonable doubt even if the jury's verdict was based on one of the counts suffering from latent duplicity. 217I do not think that this broad proposition is necessarily correct. Although the case was undoubtedly a strong one, having regard to the admission by the appellant on the telephone recording and the evidence of the complainant, it does not seem to me that it would inevitably follow that the jury would have convicted in reliance on other counts. This does not mean however the proviso cannot operate in circumstances where, if the jury had been properly directed on the counts in question, they would inevitably have convicted. 218It follows that I also do not accept the appellant's submission that if one or more grounds of appeal are made out then the proviso has no operation because the jury may have convicted on one or more of the counts which were the subject of a successful appeal, and thus could not have properly determined that the requisite three offences to constitute a contravention of s 66EA had occurred. 219In those circumstances it is necessary, in my opinion, to have regard to each of the successfully challenged counts in question to see if there was a substantial miscarriage of justice in the sense which I have described. 220In relation to count 10 and described offence (e), although I have found that there was insufficient evidence to establish sexual intercourse, in each case the trial judge properly left the alternative of attempted sexual intercourse to the jury. The evidence of the complainant, whilst not establishing sexual intercourse, clearly establishes attempted sexual intercourse. In those circumstances, assuming that the jury in fact convicted in reliance on count 10 and described offence (e), if they had been directed that they could only consider attempted sexual intercourse for the purpose of these incidents, in my view the jury inevitably would have so convicted given that the jury clearly accepted the complainant's evidence. 221It follows, so far as this count and described offence are concerned, that there was no substantial miscarriage of justice. 222So far as counts 7, 12, 13 and described offences (b) and (g) are concerned, there are three alternatives. First, no reliance was placed on them by the jury in reaching their verdict. In these circumstances the error will not occasion any substantial miscarriage of justice. Second, the jury rejected the complainant's evidence on some or all of these counts and described offences. In those circumstances once again there would be no substantial miscarriage of justice as it would follow that the jury relied on other counts and described offences in reaching their conclusion. 223The third alternative is that the jury relied on one or more of these counts and described offences in reaching their conclusion but some members relied on the act of digital penetration and others on the act of oral intercourse. Although at first glance this may seem problematic, reliance on these counts or described offences would inevitably mean that the jury accepted the evidence of the complainant as to what occurred in relation to these acts. It follows, in my opinion, that had the jury been properly directed that they could only take account of one of the two single acts, they would inevitably have reached the same conclusion. There was no cross-examination in relation to these counts to the effect that only one of the two impugned acts occurred. Nor was such a proposition suggested to the jury by counsel for the defence. Further, although I have concluded that r 4 does not apply, I am fortified in the view that I have reached by the fact that counsel for the defence took no issue at trial as to the manner in which these counts were left to the jury. 224In those circumstances, in my opinion, the errors to which I have referred did not lead to a substantial miscarriage of justice. 225It follows that the appeal against conviction should be dismissed.

The appeal against sentence 226In sentencing the appellant, the trial judge adopted the Crown submission that the sentencing should proceed on the basis that each of the foundational sexual offences referred to as alternative counts or described offences, occurred. He acknowledged that in proceeding to sentence on the count for which the offender was convicted (namely the offence under s 66EA), before he took into account any foundational offence he must be satisfied that each occurred within the date set out in the indictment, and satisfied as to the nature of each offence. He proceeded on that basis, finding that all of the foundational offences, except the one of penile penetration the subject of count 10, had been proved beyond reasonable doubt. He acknowledged that the uncharged offences could not be used to increase the penalty provided under s 66EA, and that the fact that the foundational offences may be representative of a broader course of conduct could not be taken into account as an aggravating feature (Remarks on Sentence 28). 227The appellant submits that the trial judge erred by taking into account on sentence offences for which the offender was not convicted. The appellant submits that he should have been sentenced on the basis that he committed only three offences. 228In support of this submission the appellant placed particular reliance on what was said by Spigelman CJ in R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466 where his Honour (at [74]) cited with approval what was said by Lord Bingham CJ in R v Kidd [1998] 1 WLR 604: "A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Anderson [1978] AC 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. It is said that the trial judge, in the light of the jury's verdict can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in Hutchison [1972] 1 WLR 398 at 400; [1972] 1 All ER 936 at 937; (1972) 56 Cr App R 307 at 309 is to 'deprive the appellant of his right to trial by jury in respect of the other alleged offences'. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle." 229The appellant submitted that in the present case to sentence on the basis that more than three foundational offences occurred would involve the appellant being sentenced for more offences than those for which he was convicted. It is submitted that in these circumstances the trial judge fell into error in his approach to sentencing. He submitted that a sentence for more than three offences was inconsistent with the jury's verdict: see R v Isaacs supra at 378. 230The difficulty with the appellant's submission is that he was not being sentenced for the commission of three offences or, for that matter, for the commission of three representative offences. He was sentenced for a contravention of s 66EA(1), which related to the commission of three or more sexual offences on three or more separate occasions during a period. If the jury entered a verdict on this offence and, as will generally be the case, do no more than this, it is not inappropriate in my opinion for the trial judge to consider which of the foundational offences were established beyond reasonable doubt so as to sentence in accordance with the verdict of the jury. Although the question does not appear to have been considered in this State (the remarks of Sully J in R v Fitzgerald supra were made in the context of a plea of guilty for an indictment under s 66EA relying on seven foundational offences), what I have said appears to me to be consistent with the approach taken by the Full Court of the Supreme Court of Tasmania in Emery v R supra. In that case Slicer J made the following remarks (at [32]): "Two examples can be given of the effect of these competing considerations. The first is that the verdict of the jury might reflect satisfaction only as to one period of the relationship or as to a limited number of occurrences, yet the sentence might reflect the whole of the charge or all of the particulars charged. In the circumstances, the jury might not have been satisfied beyond reasonable doubt that there had been an act of rape." Whilst Evans J made the following remarks (at [44]): "The learned trial judge expressly sentenced the accused on the basis that one of the unlawful sexual acts upon which his conviction was founded was the rape which occurred on the fifth occasion. In my respectful view, his Honour was quite correct in sentencing the accused on this basis. His Honour was obliged to determine the factual basis for the sentence. In doing so, he was obliged to adopt a view of the facts which was consistent with the verdict. He was not entitled to proceed on any view of the facts necessarily negatived by the jury's verdict. Authorities in which these principles have been recognised in this jurisdiction include: Prokopiec [1982] Tas R 170; (1982) 7 A Crim R 116, Gill (unreported, Supreme Court, Tas, No 134 of 1989, 10 October 1989), Bresnehan (1992) 1 Tas R 234, Parker (unreported, Court of Criminal Appeal, Tas, No 81 of 1993, 21 July 1994) and McKenzie [1999] TASSC 54." 231The approach was also consistent with what was said by the Full Court of the Supreme Court of South Australia in R v D (1997) 69 SASR 413 where the Court considered the appropriate method of sentencing under the South Australian equivalent to s 66EA. In that case Doyle CJ made the following remarks (at 420): "In my opinion, the approach to be taken under s 74, in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of twelve years, that attracts a maximum punishment of seven years imprisonment, and indecent assault on a child above the age of 12 years, that attracts a maximum punishment of eight years imprisonment. It is not necessary to identify the number of offences committed with any precision, although if that can be done readily, there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision, would simply reintroduce the very problem at which s 74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences, as distinct from under s 74, and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct. In this way, the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima." [emphasis added] 232The approach referred to in R v D supra was recently followed by another decision of the Full Court of the Supreme Court of South Australia in R v Fleming [2011] SASCFC 75 at [19]-[23]. 233Such an approach does not, in my opinion, involve sentencing in a manner inconsistent with a verdict of the jury and is consistent with the duty of the judge to determine the facts relevant to the exercise of his or her discretion on sentencing: see R v Isaacs supra at 378; Cheung v R [2001] HCA 67; (2001) 209 CLR 1 at [4]-[8], [161]-[166]. 234It follows that the ground of appeal in relation to sentence is not made out. 235In these circumstances leave to appeal against sentence should be allowed but the appeal dismissed. 236JAMES J: I agree with Bathurst CJ. 237JOHNSON J: I agree with Bathurst CJ.

Amendments 11 October 2013 - Judgment anonymised further Amended paragraphs: 6, 13, 14, 171, 175, 181, 183, 185, 186, 188 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2013