AW v REGINA

Court of Criminal Appeal (NSW)|2008-09-30|Before: Bell JA, Latham J, Fullerton J

JUDGMENT OF: Bell JA at 1; Latham J at 2; Fullerton J at 58

CATCHWORDS: CRIMINAL LAW - Appeal against conviction on child sexual assault offences - Whether error in Black direction - Whether error in the admission of tendency evidence - Adequacy of Longman direction - Suggestion to jury to approach counts in the indictment sequentially - appeal dismissed.

LEGISLATION CITED: Evidence Act 1995 Criminal Appeal Act 1912

PARTIES: AW - Appellant Regina - Respondent

COUNSEL: Peter Hamill SC - Appellant L Wells - Respondent

SOLICITORS: Nyman Gibson Stewart - Appellant S Kavanagh (Solicitor of Public Prosecutions) - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/06110010

BELL JA LATHAM J FULLERTON J

30 JANUARY 2009 AW v REGINA Judgment 1 BELL JA : I agree with Latham J. 2 LATHAM J : The appellant was convicted following trial on one count of indecent assault upon a child under the age of ten years, one count of commit an act of indecency towards a child under the age of ten years and two counts of sexual intercourse without consent upon a child under the age of 16 years. The complainant in each count was the daughter of the appellant's de facto partner between September 1998 and 7 December 2000. 3 The appeal against these convictions is based upon four grounds. There is no appeal against sentence. The nature of the grounds of appeal do not require a detailed account of the evidence at trial. Three of the grounds relate to the directions given by the trial judge and the fourth relates to the admissibility of tendency evidence. 4 The complainant was aged 9 when the appellant commenced living with her mother in Dubbo. Counts one and two on the indictment occurred on consecutive days between 26 December 1998 and 2 January 1999. The complainant gave evidence of the appellant putting his hands down her pants and touching her on the vagina while they were watching television in the evening. The next morning, the complainant saw the appellant, naked, sitting on the floor at the end of her bed, masturbating. These two incidents were associated with an overnight visit by a friend of the complainant's, AK. AK gave evidence in the trial confirming that she stayed the night. 5 The third count, between 1 January 1999 and 30 November 2000, coincided with an overnight visit by the appellant's daughter, J, who was then aged about 5 or 6 years. While the appellant, the complainant and J were playing a game, involving crawling through a tunnel made by their outstretched legs, the appellant licked the complainant's vagina. 6 The fourth count, in the same time frame as Count 3, occurred when the complainant was lying on her mother's bed. The appellant came into the room, ran his hand up the back of her thigh inside her underpants and put his finger inside her vagina. 7 The tendency evidence, according to the tendency notice served before trial, consisted of evidence from the complainant and her mother, MM, to the effect that the appellant accessed child pornography on the internet. According to the complainant's evidence, there was an occasion when the complainant and a friend were making pancakes while the appellant sat at the computer in the lounge-room. The appellant invited the complainant and her friend to look at the screen. The complainant said she saw an image of a girl aged 8 - 10 years, on the shoulders of a male, with the girl's vagina in close proximity to the male's face. Shortly after, the appellant became annoyed and left the house. This was but one of many occasions when, according to the complainant, the appellant accessed child pornography on the computer. 8 The complainant's friend, NH, gave evidence at trial. Her account of the pancake incident differed from that of the complainant in so far as it described images of young women, not children, on the computer and it maintained that the appellant had sent the two girls to bed. The Crown included the statement of this witness in the material it sought to introduce as tendency evidence, albeit it was not part of the tendency notice because the statement had only been obtained the day before the start of the trial. The statement included a reference to "pornography" on the appellant's computer. 9 MM gave evidence that on one occasion in October or November 2000, she saw the appellant using the computer in the dining room. The appellant quickly turned it off as soon as MM entered the room. MM turned the computer back on and saw the words "hardcore child pornography" and images of "underdeveloped children". The appellant said, "it just popped up." 10 The trial judge ruled at the beginning of the trial that all of the evidence relied upon by the Crown was admissible as tendency evidence and that its probative value substantially outweighed its prejudicial effect. However, after NH had given evidence, that ruling was re-visited. NH's evidence was not left to the jury as tendency evidence. No complaint is made about that decision or his Honour's directions to the jury.

Ground 1 - A Significant Departure from the "Black" Direction ? 11 The jury commenced their deliberations shortly before midday on the second day of the summing up (the fourth day of the trial). At 1pm the jury sent a note indicating that they would like to "re-visit" the complainant's evidence. Arrangements were made to supply the jury with two disks containing a recording of the complainant's evidence. The jury spent the balance of the day listening to that evidence, before sending a note shortly after 4:30pm which read "We're at a deadlock in the context of the case can you provide some direction on how we can/may move forward". 12 The trial judge gave the following direction :- Ladies and gentlemen, as is patently obvious to you, this is an important matter and important to the community and certainly important to the accused. It has been the experience of courts, criminal matters over many, many years that given sufficient time, in the vast majority of cases juries do agree. However, to reach agreement it is necessary that the jurors pay due heed to the opinions of those with whom they are currently in disagreement. You have each taken a solemn oath to determine this matter and I have not the slightest doubt that each and every one of you is doing his or her best to fulfil your obligations as jurors, consistent with your oath. However, I urge you to listen to the opinions of others. Speaking from my own part, and I'm not suggesting that any of you come into this category, I have stubbornly adhered to a view only to find subsequently that I was wrong and had I been a little more open to reason, a little less stubborn, a little less obdurate, I would have realised that. Now I am not suggesting that any of you are being unreasonable or obdurate or stubborn. But I do urge you to stand back, listen to the opinions of others and see whether you can in conscience alter your present stance. Now that does not mean that you change your view, change your mind simply to be agreeable, only do so if you can in conscience. Now what I'm going to do is I am going to send you home now and I'm going to ask you to be back here for a nine o'clock start tomorrow, …….. And I want you to resume your deliberations when all of you are here together. Listen, carefully consider and if possible reach unanimity. 13 The jury separated immediately after this direction at 4:53 pm. No objection was taken to the direction. The jury returned with its verdicts of guilty shortly before 10 am the following morning. 14 The appellant contends that the direction departed to a substantial extent from the direction commended by the joint judgment in Black v The Queen (1993) 179 CLR 44 at 51-52. In particular, it is submitted that the direction was deficient in three respects, namely, that it :- (i) did not advise the jury that the trial judge had the power to discharge them in the event of disagreement, (ii) did not refer in terms to the qualification that differences of opinion could only be resolved if that was consistent with the oath or affirmation of a juror, (iii) omitted to instruct the jury that " if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence " ( Black ),

15 Further, it was submitted that it was dangerous to use the terms "obdurate", "stubborn" and "unreasonable". The result of these faults, it is said, was a direction that pressured that juror or those jurors who disagreed with the majority to conform to the majority view. 16 The appellant acknowledges that mere departure from a direction, whether a "model" direction advanced by the High Court or one found in the Bench Book, does not constitute error : R v Forbes (2005) 160 A Crim R 1 ; [2005] NSWCCA 377. The only issue is whether this particular direction constituted an error of law in the circumstances of the trial. 17 I am not persuaded that it did. When the trial judge received the jury's note late on the first day of their deliberations, the jury had spent little more than one hour in discussion, after two days of evidence, before requesting a recording of the complainant's evidence. Clearly, the jury's acceptance of the complainant was the crucial issue. Whilst they indicated that they were "deadlocked", the note was essentially a request for assistance. 18 In my view, it would have been unrealistic and unhelpful at this early stage of the deliberations to tell the jury that the trial judge had the power to discharge them if there was no genuine prospect of agreement. I do not agree with the appellant's submission that the purpose of giving the jury that information is to allay any fear that the jury might have that they would be on verdict indefinitely until a result was obtained. The point of that instruction is to impress upon the jury that the power to discharge may only be exercised where the trial judge is "satisfied that there is no likelihood of genuine agreement being reached after further deliberation." It is the pre-condition to the exercise of the power that is pertinent. The Black direction goes on to explain the reluctance of trial judges to take that step because of their experience with juries and the benefits of further deliberations. The direction concludes with "for that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged." 19 In other words, the direction seeks to explain why the trial judge is requesting the jury to undertake further deliberations. In this case, that is precisely what the trial judge did, albeit in different words. The judge told the jury that "it has been the experience of the courts [in] criminal matters over many, many years that given sufficient time, [in] the vast majority of cases juries do agree." The omission of the information that the jury could be discharged did not constitute error. No doubt, the jury knew that they would be discharged at some stage but that was unlikely to occur after such a short time. 20 The alleged errors at (ii) and (iii) may be dealt with together. The appellant contends that there is a significant qualitative difference between a direction that instructs the jury to "see whether you can in conscience alter your present stance, [although] that does not mean that you change your view, change your mind simply to be agreeable, only do so if you can in conscience" and the "model" direction that speaks in terms of not joining in a verdict if, consistently with the oath or affirmation as a juror, a juror does not honestly and genuinely think that it is the correct one. To the extent that the formulation is different, I do not agree that it is a significant difference, particularly when account is taken of the preceding paragraph, namely, "you have each taken a solemn oath to determine this matter and I have not the slightest doubt that each and every one of you is doing his or her best to fulfil your obligations as jurors, consistent with your oath." These two aspects of the direction, when taken together, amply reflect the essential content of the Black direction, as summarised in R v Yuill (1994) 77 A Crim R 314 at 319. 21 The trial judge's references to "obdurate", "stubborn" and "unreasonable" were characteristics that he attributed to himself, by way of example to the jury of his own experience. The judge expressly disavowed any suggestion that individual members of the jury might be exhibiting those characteristics. If counsel for the appellant at trial had understood these comments as a veiled reference to the qualities of those members of the jury who were not persuaded of the complainant's credibility, an objection to the direction would have been taken, either that afternoon or the following morning. The fact that no objection was taken, despite vigorous objections to other aspects of the summing up, persuades me that it did not occur to counsel that there was anything sinister about the direction. 22 In order to justify a grant of leave to rely upon this aspect of ground one, the appellant must at least establish that he has lost a real chance of acquittal. As Mason P said in Picken v R [2007] NSWCCA 319 at [22], The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge. 23 I do not accept the appellant's argument that the jury necessarily understood these terms in the context of the direction as a suggestion that one or more members of the jury were being unreasonable or stubborn. It may perhaps be preferable to avoid such epithets, in order to minimise the risk that members of the jury feel an obligation to compromise. However, as I have already noted, that meaning was clearly not conveyed to counsel at trial, so it is unlikely to have been conveyed to any member of the jury. In those circumstances, the appellant has not demonstrated that he has lost a chance of acquittal that was fairly open to him.

Ground 2 - Inadequate Direction on the Forensic Disadvantages of Delay ? 25 The offences occurred between late 1998 and late 2000. The complainant made general complaints to a number of her peers in about 2000 and 2001. The complainant's interview with police on 17 August 2004 gave a detailed account of the offences, including the incident relating to the appellant's use of the computer to access child pornography (the pancake incident). However, the complainant did not wish to pursue court proceedings at that time. Nonetheless, as a result of bringing those matters to the attention of police, an apprehended violence order (AVO) was taken out against the appellant in that year. 26 In the course of the appellant's examination in chief, his counsel at trial asked "Were these charges first brought to your attention some time in about August or September of 2004?", to which the appellant replied "I cannot remember the dates at all." There followed a series of questions and answers that established that the appellant attended a Department of Community Services (DOCS) office in Dubbo as a result of the AVO proceedings. It is therefore reasonably clear from the evidence that the appellant was made aware of allegations of child sexual assault by virtue of the AVO proceedings. It remains unclear whether the appellant was also made aware of the allegations of access to child pornography. 27 In November 2005 the investigation into the allegations was revived. The complainant made a further statement on 31 January 2006, wherein she nominated the pancake incident relating to the appellant's access to child pornography as occurring on 17 April 2000. The complainant's mother provided a statement which indicated that she had seen the relevant images on the computer in October or November of 2000. 28 The appellant was charged on 13 March 2006. Thus, there was a period slightly in excess of 5 years between the last of the offences and the charging of the appellant, whereby the appellant became aware of the particulars of the charges and the particulars relating to his alleged access to child pornography. Given the consequences of the AVO proceedings, there was a period of approximately four years between the offences and the appellant's awareness of the general nature of the sexual assault allegations. 29 It was against this background that the trial judge initially directed the jury in the following terms :- The first improper act alleged occurred in late December 1998 and the last in about April 2000. The matter was not drawn to the attention of the accused until 2004. He was not charged until 2006. Some years passed before he had the opportunity to consider the allegations and possibly take some action to investigate, address or refute them. Bear these matters in mind ladies and gentlemen as I have already told you, you must carefully scrutinise the complainant's evidence in deciding as to whether you accept her as a reliable raconteur. 30 Before formally concluding the summing up, the trial judge asked counsel whether any further directions were required. The Crown Prosecutor indicated to his Honour in the absence of the jury that the above direction concerning delay was inadequate. A discussion of the authorities followed, during which the Crown Prosecutor said :- I don't know if [the accused's counsel] wants your Honour to point to any particular forensic disadvantage that his client faced in terms of being able to get witnesses or documents, but there is nothing referred to in [his] address as to any particular forensic disadvantage other than it was only able to make a general denial. 31 The trial judge accepted that there was delay but queried what he was supposed to do "when no claim has been made that he is under any such disadvantage." The Crown agreed with that suggestion, in so far as "the closing address … didn't point to any particular disadvantage". 32 The trial judge then asked counsel if he wanted to suggest any particular disadvantage "even at this stage". Some further discussion ensued on the subject of delay, before counsel specified the relevant disadvantages as an inability "to investigate and gather evidence which could be used to defend the allegation such as being able to find the witnesses who may have attended the premises at or on the occasions on which the allegations are alleged to have occurred". In addition, counsel pointed to the inability of the accused "to determine if there were any particular days, nights or periods when he was absent from the house when these allegations are alleged to have occurred [and an inability] to properly investigate any access records if such things are maintained as to Internet usage." 33 The trial judge queried what records were kept for Internet usage. Counsel responded "if there are records of Internet usage. Your Honour we don't know that there may be." A short time later, the trial judge noted that there was no evidence of any attempts being made to obtain such records, if any were kept. In those circumstances, the trial judge remarked that "it was incumbent upon [counsel] to point out the difficulties, not some theoretical difficulty."

34 The trial judge then gave this direction :- You are aware that full complaint was not made to the mother and to the police until 2004, and that accusations were not drawn to the accused's attention until that time. You are further aware that charges were not laid until 2006. The accused has contended that the delay in making a complaint is inconsistent with the conduct to be reasonably expected of a truthful child who has been sexually assaulted. Therefore the accused suggests that you would regard her account as false. This is a matter you should consider however, it does not follow that delay indicates fabrication, as there may well be good reasons for the delay in the child raising the complaint. Is important that you fully appreciate the effects of the delay in raising the complaint and commencing the proceedings on the accused's ability to defend himself and to test the Crown case, in particular it would be obvious that he would be hampered in his ability to account for his movements as to what activities he might have been engaged in at the relevant time and as to finding people who may have been able to say that they observed him on the days or at the time in question. You would also take into account the age of the complainant and the nature of the allegations and the fact that the Crown case is dependent upon the acceptance of her evidence. Bear in mind her attitude in not proceeding in 2004 and the reasons that she advanced for that, and in only raising the matter further in 2006 and the reasons she advanced in that regard. It would therefore be unsafe to convict on the complainant's evidence alone, unless you are satisfied as to its truth and accuracy after carefully scrutinising it, and having paid attention to this warning. 35 The appellant's submissions on this ground of the appeal focused upon the failure to direct the jury specifically with regard to the difficulty encountered by the appellant in undertaking investigations or enquiries to disprove the allegations of access to child pornography. It was submitted that "had the allegations of child pornography been known to the appellant's advisers at an early time, and with a degree of temporal specificity that the delay did not allow, it may have been possible to interrogate the records of the relevant Internet provider or telecommunications company to determine whether the Internet was in use at the relevant times." In conclusion, it was submitted that the warning and the directions given by the trial judge were inadequate, having regard to the authorities. 36 The first thing to note is that there was temporal specificity in the allegation made by the complainant concerning the appellant's internet access on the night she and her friend were making pancakes. The complainant's statement of 31 January 2006 formed part of the tendency notice that was served upon the appellant on 14 November 2006. In all likelihood, it was part of the prosecution brief served upon the appellant before that date. The second thing to note is that there was no evidence before the jury concerning the ownership of the computer, the identity of the internet provider, the account holder or who took possession of the computer after the complainant and her mother moved out of the premises they were sharing with the appellant. They were matters within the knowledge of the appellant. 37 In the light of the concession from counsel at trial that no enquiries had been made as to whether internet records relating to the relevant period existed at all, it is difficult to maintain that the opportunity to test the evidence in that regard had been lost. The appellant was not in a position to assert that such records existed, but had been destroyed before he was charged. Nor could the appellant refute the possibility that records were available, right up until the appellant's trial. The appellant's argument on this ground suggests that there is nothing untoward in the legal representatives of an accused refraining from making enquiries that might demonstrate no loss of opportunity to test relevant evidence, yet insisting upon a direction to the opposite effect. In my opinion, that is not the state of the law. 38 It is not necessary to review the many judgments of the High Court and this Court on the subject of the warning to be given in cases of delay between the commission of offences and the allegations coming to the notice of an accused for the first time : Longman v The Queen [1989] HCA 60; 168 CLR 79 ; Crampton v The Queen [2000] HCA 60; 206 CLR 161 ; Doggett v The Queen [2001] HCA 46; 208 CLR 343 ; R v Johnston (1998) 45 NSWLR 362; R v BWT [2002] NSWCCA 60; 54 NSWLR 241; R v Kesisyan [2003] NSWCCA 259; R v SY [2004] NSWCCA 297; and R v DRE [2004] NSWCCA 305 ; DPW v Regina [2006] NSWCCA 295 ; (2006) 164 A Crim R 583 ; KJR v Regina [2007] NSWCCA 165 ; (2007) 173 A Crim R 226 ; Perez v Regina [2008] NSWCCA 46. It is sufficient to repeat what Simpson J said in R v DRE (2006) 164 A Crim R 400 ; [2006] NSWCCA 280, namely, that "no definitive statement of the minimum requirements of a Longman direction has yet emerged." What is important is that the content of the direction meets the factual circumstances of the trial. 39 The critical aspect of the Longman warning is to identify for the jury the reasons why the warning is given : per Spigelman CJ in DRE (2006). In this case, the trial judge referred to the prejudice occasioned by the appellant's difficulty in accounting for his movements and his activities at the relevant time, and in identifying and locating people who may have been able to say that they observed him on the occasions in issue. These reasons reflected the reality of the appellant's position. 40 Spigelman CJ in DRE (2006) dealt with a similar submission as that advanced here, in the context of defence counsel giving specific examples of disadvantage to the jury :- In order to comply with the requirements of a Longman warning it is not necessary for the trial judge to identify every conceivable disadvantage that could have been suffered. It is sufficient to do what has happened in this case, namely to focus on specific examples of disadvantage, even hypothetical ones, and to indicate that there may have been other disadvantages. His Honour did so by reference to submissions that the jury had just heard. …………………………………………………………………………. It is not necessary for the trial judge to add the weight of a judicial adoption of submissions to every kind of disadvantage that was or may have been suffered in a particular case. It is, however, essential that judicial weight be brought to bear for the proposition that there were such disadvantages and that that was why it was necessary to give a warning of the character that was given. 41 For these reasons, the trial judge was not under an obligation to identify "every conceivable disadvantage that [the appellant] could have … suffered." Hypothetical examples of the disadvantages suffered by any accused faced with stale allegations of a general temporal nature were identified. The directions were adequate to meet the circumstances of the trial. This ground also fails.

Ground 3 - Error in the Admission of Tendency Evidence ? 42 The appellant's complaint on this ground is that the evidence admitted as tendency evidence lacked the degree of probative force that was capable of substantially outweighing any prejudicial effect upon the appellant. In other words, the appellant submits that the evidence failed to meet the threshold established by ss 97(1)(b) and 101(2) of the Evidence Act 1995. 43 No issue was taken with the characterisation of the evidence as tendency evidence. Rather, counsel mounted the attack on the admission of the tendency evidence on two bases. The first was that, although NH's evidence was not left to the jury as tendency evidence, it was part of the material upon which the judge relied to conclude that the evidence met the test under s 101(2). Hence, it was submitted that a re-appraisal of the tendency evidence that was ultimately left to the jury would lead to a rejection of the evidence under s 101(2). Secondly, the appellant sought to draw a number of distinctions between the present case and that of R v MM [2004] NSWCCA 364, in order to demonstrate the relative lack of probative value of the evidence in the appellant's trial. A number of features of MM were relied upon, namely, that the accused in MM had made admissions in respect of downloading child pornography, that he had been convicted of possessing child pornography, that he had made significant admissions to a probation officer in relation to sexual fantasies about children and sexual activity while watching child pornography, and the significant detail in the observations of the computer sites made by the mother of the complainant in that case. By way of contrast, the appellant maintains that the complainant's evidence and her mother's evidence on this topic in his trial lacked sufficient detail and was unsupported by objective evidence. 44 MM was a decision of this Court following a Crown appeal pursuant to s 5F(3A) of the Criminal Appeal Act 1912. The Court determined that the trial judge erred in failing to consider evidence of the accused's access to and storage of child pornography as tendency evidence, whilst noting that the trial judge had not undertaken the exercises required by ss 97(1) or 101(2). The Court therefore declined to make a ruling in relation to the admissibility of that evidence. In those circumstances, the decision is of limited value in the determination of this ground. 45 In order to succeed on this ground, the appellant must demonstrate that it was not open to the trial judge to find that the tests under ss 97(1) and 101(2) were satisfied : R v Milton [2004] NSWCCA 195 ; R v Fletcher [2005] NSWCCA 338 ; (2005) 156 A Crim R 308. In the course of Simpson J's judgment in Fletcher (with which McClellan CJ at CL agreed) and in Milton, it was noted that the exercise under both provisions is an evaluative one or one involving a degree of value judgment, about which reasonable minds might differ. 46 It is also pertinent to note that the focus of the enquiry when such a ruling is impugned is the extent and nature of the material before the judge at the time the determination is made. If that material should change during the course of the trial, a trial judge may be obliged to re-visit the ruling. Where the ruling is re-visited and confirmed, the question for this Court is whether the test under s 97(1) and s 101(2) remains satisfied and whether the admission of the evidence has given rise to a miscarriage of justice.

47 The appellant's submissions on the issue of probative value ignore the qualifying term prescribed by s 97(1). The evidence must have significant probative value, that is, it must be evidence that is meaningful in the context of the issues at trial. The provision is concerned with the qualitative aspects of the evidence, not quantitative ones. The extent to which such evidence is objectively proved, as in MM, has less to do with s 97(1) than it has to do with s 101(2). It must be more than merely relevant, but may be less than substantially so : R v Lockyer (1996) 89 A Crim R 457. The question for the trial judge was whether the evidence was important in establishing the facts in issue, namely whether the appellant committed the charged sexual offences against the complainant.

48 The complainant's evidence and her mother's evidence on this topic, foreshadowed by the tendency notice, fixed the pancake incident and the access to "hardcore child pornography" in the year 2000, coinciding generally with counts 3 and 4 in the indictment. It was also significant that count 3 alleged an act of cunnilingus, consistent with the type of activity that the complainant said was depicted on the computer screen during the pancake incident. Contrary to the appellant's submissions, there was a degree of particularity and contemporaneity in the tendency evidence that allowed the trial judge to reach the conclusion that it was significantly probative. The removal of NH's evidence from consideration as tendency evidence did not affect the significance of the remaining tendency evidence. 49 Accepting that the evidence was prejudicial, in the sense that the jury might reason that because the appellant was inclined to view child pornography, he was therefore guilty of the offences, was it open to the trial judge to conclude that the probative value of the evidence substantially outweighed its prejudicial effect ? In my view, the answer to that question is yes. The mother's evidence, although lacking the graphic description of the relevant images given by the complainant, included a reference to images of underdeveloped children and the words "hardcore child pornography". That was either the name of the internet site or a description of the material contained on the site. It constituted powerful tendency evidence, independently of the evidence of NH and of the complainant. 50 Had the complainant's evidence stood alone, one would less readily conclude that s 101(2) was satisfied, since the complainant's evidence of the sexual assaults committed upon her by the appellant was unsupported and the overarching question for the jury was whether they accepted the complainant as an honest and reliable witness. In those circumstances, the complainant's evidence of the pancake incident would add nothing to the probative value of her evidence generally. However, that was not the position at trial, nor did trial counsel raise the possibility of concoction or contamination between the complainant and her mother, for the purposes of impugning the probative value of the evidence. 51 Following a review of the tendency evidence and the directions to the jury on this subject, I can discern no miscarriage of justice arising out of its admission in the trial. It follows that this ground of the appeal fails.

Ground 4 - Error in Suggesting to the Jury that the Counts be Approached Sequentially ? 52 At an early stage in the summing up, the trial judge said :- What I suggest that you do, ladies and gentlemen, is go to the first count. Consider it and arrive at your verdict. Then proceed to the second count, consider the evidence in relation to it and arrive at your verdict, and so on. If you have a reasonable doubt about the complainant's reliability on one charge you should take that doubt into account when considering the others. 53 Counsel at trial took issue with this aspect of the summing up and referred his Honour to the decision of Norris v Regina [2007] NSWCCA 235 ; (2007) 176 A Crim R 42. The trial judge refused to withdraw the comment. 54 The appellant relies upon the following passage from Howie J's judgement in Norris :- Generally it is no business of the trial judge to direct the jury as to how they are to embark upon their consideration of the counts before them. In particular there was no reason in logic or in law in the present case why the jury should have commenced their deliberations by considering the first count and moving sequentially throughout the other counts on the indictment. Such a direction might lead the jury to understand that it should determine the first two counts without considering any of the findings on the third and fourth counts as to the credibility or reliability of the complainant. There was no indication that the jury might revise any determination it made of the first two counts as a consequence of any findings it made on the third and fourth counts. 55 It is pertinent to observe that Norris was concerned with inconsistent verdicts in respect of four counts of sexual assault, proof of which were wholly dependent on acceptance of the complainant's evidence. The jury convicted the accused on counts one and two of the indictment, but acquitted on counts three and four. The trial judge's directions to the jury on their approach to each of the four counts were of particular significance to the argument in respect of inconsistency. The grounds of appeal in Norris make it clear that the trial judge directed the jury that it was required to approach the counts on the indictment in a sequential manner. The remarks of Howie J set out above ought to be understood in that context. 56 That is far from the case here. The trial judge did no more than suggest that the jury might approach the charges in a sequential fashion. That was said in the context of an immediately preceding direction that the jury was required to consider the counts separately, and that a particular verdict on one count did not necessarily dictate the verdict on another count. In my view, such a direction does not disclose error of the type discussed in Norris. 57 For these reasons, this ground of appeal also fails. I would dismiss the appeal. 58 FULLERTON J : I agree with Latham J. **********

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