Consideration
19As the Crown submitted on appeal, evidence was admissible at the trial to support the complainant's evidence that he regularly spent time with the appellant, swimming and fishing, in a context that was likely to be enjoyable for a young boy. Such evidence was relevant to explain why the complainant continued to associate with the appellant. It therefore helped in the evaluation of the complainant's evidence and was thus admissible (Norman v R [2012] NSWCCA 230 at [23] - [35]).
20However in my view the evidence to which Ground 1 relates cannot wholly be characterised in this fashion. Its volume and content, and the way it was used in cross-examination and address, leave little doubt that, viewed objectively, the bulk of it was tendered and relied upon to demonstrate the sexual interest of the appellant in the complainant. This amounted to use of the evidence to show that because he had a sexual interest in the complainant the appellant was more likely to have committed the offences alleged. However unless the conditions specified in ss 97 and 101 of the Evidence Act 1995 for the admission of such tendency evidence are satisfied, the evidence may not be admitted or used for that purpose (Colquhoun v R (No 1) [2013] NSWCCA 190 at [22]). The Crown did not contend that these conditions were satisfied in the present case.
21The evidence to which the trial judge referred in the passages from the Summing-Up that I have quoted in [18] above went beyond the categories of evidence covered by Ground 1 to refer to evidence of the complainant that the trial judge thought the jury might consider indicated that the appellant had committed offences further to those charged, that is, "uncharged acts". However it was not permissible for the jury to use any of the evidence to which the trial judge there referred, as the trial judge said it could, to establish sexual desire or feeling of the appellant for the complainant. An invitation to the jury to use the evidence for impermissible tendency reasoning was thus made explicit in the Summing-Up, particularly in the portions of the quoted passages that I have highlighted (see [18] above).
22Furthermore, it was not permissible for the trial judge to indicate to the jury, without a more precise explanation, that the evidence was able to be used to "show the relationship between the accused and the complainant". Without identification of a permissible use, such as to put the complainant's evidence in context and render it explicable, this direction was liable to encourage the jury to use the evidence for the impermissible tendency purpose of suggesting that, because of an apparent sexual interest of the appellant in the complainant, the appellant was more likely to have committed the offences charged. As explained by McClellan CJ at CL in DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [29], evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context".
23Understandably the Crown conceded on appeal that the trial judge's directions concerning the use to which this evidence could be put by the jury were erroneous. It however submitted that the Court should nevertheless apply the proviso to s 6(1) of the Criminal Appeal Act 1912 and dismiss the appeal. To apply that proviso, the Court must be of the view that "no substantial miscarriage of justice has actually occurred". I do not consider that to be the situation here. The evidence in question, together with the submissions and directions to the jury concerning it, constituted a prominent aspect of the trial, with the potential to be regarded by the jury as of considerable significance to their deliberations.
24As the determination of the prosecution's case required the jury to form views as to the credit of the complainant, the appellant and Detective Harris, and the reliability of their evidence, this Court is not in a position to form, and give effect to, a view as to the appellant's guilt, at least as to Counts 1 and 4. This would be necessary for the Court to apply the proviso.
25Count 5 is arguably in a different position as the Crown relied heavily in relation to it upon the objective evidence of the DVD film taken by Detective Harris. However I am not satisfied that, when considered on its own, without the benefit of the complainant's evidence, the film demonstrates beyond reasonable doubt that, as the Crown alleges, the appellant placed his hand on the complainant's buttock, that his groin came into contact with the complainant's buttocks, and that the appellant "humped" the complainant (or that following his contact with the complainant, the appellant moved his hand "as though adjusting his penis"). The complainant's evidence cannot be taken into account by this Court because, first, its acceptance would require this Court to make a finding concerning the complainant's credit, which it is not in a position to make, and, secondly, regard cannot be had to the jury's obvious acceptance of the complainant's evidence due to the erroneous directions given to it.
26In these circumstances, the conclusion follows that the trial miscarried and the appellant's convictions must be quashed. The points the subject of Grounds of Appeal 1 and 2 were not taken at the hearing, but the appellant should not in my view be precluded by r 4 of the Criminal Appeal Rules from taking them on appeal as he has demonstrated that he has lost a not unrealistic chance of acquittal such that a miscarriage of justice has occurred (R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 (see [21])). I would accordingly grant leave to rely upon those two grounds.