Court of Appeal (WA)|2000-03-28|Before: Mr J, Pidgeon J, Wallwork J, Anderson J

Cook v The Queen [2000] WASCA 78 (28 March 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COOK -v- THE QUEEN [2000] WASCA 78

Criminal law - Sexual offences - Propensity evidence - Evidence of uncharged acts - Basis of admissibility - Distinction between propensity evidence and similar fact evidence - Directions to jury as to use of the evidence - Whether directions sufficient - Longman warning - Whether required - Evidence Act s 50, s106D

Criminal procedure - Trial - Severance of indictment - Separate but similar offences - Different victims - Whether evidence of one admissible in respect of the trial of the other - Evidentiary overlap - Whether separate trials should have been ordered - Whether Judge's direction to jury sufficient to overcome prejudice occasioned by joint trial involving two complainants

Criminal procedure - Delay in making complaint - Possibility of concoction - Jury - Direction regarding delay - When necessary to give directions that jury should consider delay in evaluating complainant's testimony - Evidence Act s 36BD

Criminal procedure - Determination of child's competency to give evidence - Whether jury should hear Judge's finding

Sentence - Appeal against - Aggregate sentence of 11 years for multiple acts of sexual penetration of two young girls not excessive - Criminal Code - s 320

Evidence Act s 36BD, s 50, s106B, s 106D

Application for leave to appeal against sentence refused

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20

Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998

Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105; 3 March 1994

Papakosmas v The Queen [1999] HCA 37

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v Hampshire [1995] 2 All ER 1019

R v Wickham, unreported; CCA SCt of NSW; 17 December 1991

Rex v Reynolds [1950] 1 KB 606

Robinson v The Queen [1999] HCA 42; (1999) 73 ALJR 1314

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

Von Porebski v R [1999] WASC 15

1 PIDGEON J: I have read the reasons to be published by Anderson J. I agree with those reasons and with the orders proposed.

2 WALLWORK J: The grounds of appeal highlight the complexity of the task which faced the learned trial Judge when he came to address the jury in this case. In my opinion, his Honour clearly and correctly set out for the jury the rules by which they had to judge the evidence.

3 I agree with Anderson J and, for the reasons given by him, that the appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be refused. There is nothing I could usefully add to his Honour's comprehensive reasons.

4 ANDERSON J: On 9 August 1999, the applicant was presented in the District Court at Port Hedland before Alton Jackson DCJ on an indictment containing seven counts of sexual misconduct involving two children. Four counts involved the complainant S. These offences were alleged to have been committed on four separate occasions between 1 September 1992 and 3 January 1998. The three offences against B were alleged to have been committed on three separate occasions between 1 January 1994 and 31 December 1995. The two children are not related. Both were born in 1989.

5 The Crown case was that the opportunity to commit the offences charged in counts 1 to 5 arose when the children were being cared for by the applicant's wife at the applicant's home. The applicant's wife acted as a paid child-carer, taking in several young children at a time while their parents worked. Although the applicant was himself in work, it was the Crown case that he was often at home when the children were there. The opportunity to commit the other two offences, which were offences against S, arose due to a friendship between the applicant and the natural father of S.

6 Count 1 on the indictment alleges that on a date unknown between 1 January 1994 and 31 December 1995 the applicant penetrated B's vagina with his penis. The Crown case was that B was present in the applicant's house, being cared for by the applicant's wife, along with her sister and the complainant S and the latter's sister. When the applicant's wife left the house to do some shopping, the applicant got B into a double-decker bus which belonged to the applicant and which was parked behind the house. There were beds in the lower level of the bus and it was the Crown case that B and S would take afternoon naps in the beds. With respect to this count, it was the Crown case that, having got B into the bus alone with the promise of lollies, the applicant committed the act charged in the first count and told B not to tell anyone.

7 Counts 2 and 3 refer to incidents which the Crown alleges happened at the one time on a date between 1 January 1994 and 31 December 1995, one offence involving the complainant B and the other offence involving the complainant S. The counts allege penetration of the vagina of each complainant by the applicant with his finger. These events are alleged to have occurred while the applicant was bathing the two girls in a tub on a grassed area in the backyard of the applicant's house. The Crown case was that both girls were in the tub unclothed and the applicant placed his hand beneath the water and inserted his finger first into the vagina of B and then into the vagina of S and told them not to tell anyone.

8 Counts 4 and 5 on the indictment charge offences alleged to have been committed on the one occasion between the same dates against the two complainants. The Crown case was that, while B and S were playing on the patio of the applicant's house, the applicant got the girls to sit on his lap and, while they were on his lap, the applicant put his finger first beneath S's clothing in the vicinity of her vagina and then put his finger into B's vagina.

9 The remaining counts 6 and 7 refer to the complainant S. It was the Crown case that the applicant was a close friend of S's natural father. It is alleged that on one occasion between 1 September 1992 and 3 January 1998, while the two men were together, S's father was piggybacking S's sister and the applicant was piggybacking S. It was the Crown case that, while the applicant was piggybacking S, he penetrated her vagina with a finger. The incident, the subject of count 7, is said to have occurred while S and the applicant were swimming in the swimming pool next door to the applicant's house. While the applicant and S were in the pool, it was alleged the applicant touched her inside the lips of her vagina.

10 Evidence was led from both complainants that there were other incidents of sexual misconduct involving oral, penile and digital penetration committed upon both complainants. B gave evidence that there were many such incidents involving both girls. The evidence of S did not include evidence of uncharged acts involving B. However, S did give evidence of several uncharged acts involving herself.

11 The applicant was convicted of six of the seven counts and sentenced to an aggregate of 11 years' imprisonment. The charge of which he was acquitted was the charge of digital vaginal penetration alleged to have been committed on the complainant S while she was in the tub with the complainant B. There were 13 grounds of appeal, but only 10 were argued. It is now necessary to go into the evidence in a little more detail before dealing with the grounds of appeal that were argued.

12 B was born in Port Hedland on 21 August 1989 and lived with her mother, Karina (the first name will do), her older brother and younger sister. Karina was in a relationship with B's natural father and in full employment. She was friendly with S's mother, Imelda, who was also in full employment. Both women used the applicant's wife Cora for babysitting services. Imelda had another daughter about the age of Karina's younger daughter and the two sets of girls were often cared for together by Cora at much the same time at the applicant's house. The applicant usually came home for lunch and finished work at about 5 pm. He had every second Friday off and for some months in 1995 he was off work altogether, due to what appears to have been an emotional or nervous condition. B commenced going to Cora at the age of four. S had been going to Cora since she was about six months old.

13 B gave evidence that the applicant told her that the double-decker bus was his "secret hide-out". She described the bus in some detail, accurately giving its external colour as blue and white and she gave evidence, also accurate, that in the bus at the back there were two beds in the downstairs section. She said she never went upstairs. She gave evidence that on one occasion the applicant took her and S for a ride in the bus and on that occasion she and S fell asleep on the beds or "mattresses", as she described them. When she woke, her pants and knickers were down around her ankles and her vagina felt wet and sore. She saw that S's pants and knickers were down around her knees. She said that the applicant was in the driver's seat of the bus "pretending to be lost". This incident is not the subject of any count in the indictment.

14 B gave evidence that on an occasion when she, S and their younger sisters were at the applicant's house, Cora went to "Chicken Treat" and whilst she was away the applicant promised to give B some lollies in the bus if she would go to the bus with him. They were then all watching television. Her evidence was that she did go to the bus and the applicant asked her to lie on her back and pull her pants and knickers down, which she did. According to B, the offence charged in count 1 of the indictment then occurred. Her evidence was that the applicant told her not to tell anyone and that, in fact, she did not tell anyone because she was "scared". This was the direct evidence in proof of count 1.

15 B gave evidence that on another occasion the applicant gave B and S a bath in "a big red tub ... near the trees, in the shade near the patio". Both were in the tub unclothed. According to B, the applicant put some soap on his finger and put his finger in B's vagina and then he did the same to S. Her evidence was that both she and S told the applicant "not to" and that the applicant told them not to tell anyone and that if they told anyone, "he would do something much worse". This was the direct evidence in proof of counts 2 and 3.

16 B gave evidence that on another occasion when she, S and their two sisters were being looked after by Cora at the applicant's house, she and S went to the back patio. She said that the applicant told them both to sit on his lap, which they did, B on the right side and S on the left. In her evidence she described how the applicant placed his "pointer finger" first into S's vagina and then into hers. She gave evidence that she told the applicant "not to". This was the direct evidence in proof of counts 4 and 5.

17 She said that she did not tell anyone about either the bathtub incident or the patio incident because "I was scared I would get in trouble".

18 B gave evidence of a specific incident, which is not the subject of a count, which involved a note which she said was written by the applicant. Her evidence was that she and S went to sleep in the bus and when she woke her pants and knickers were down and her vagina felt wet and sore. She saw that S's pants and knickers were also down. She then saw "a note". The note was not produced in evidence, but B gave evidence that the note said, "Dear [S] and [B]. Don't tell anyone I done this. Love ?"

19 Her evidence was that on many occasions she and S would go to the bus to sleep during the day and when they awoke they would find their pants and knickers down. She was asked the question in examination-in-chief:

"Are you able to tell the court how many times this happened where you and [S] would have a sleep in the bus and you would wake up with your pants and knickers down around your ankles?"

Her answer was: "I would say more than 50 times." Her evidence was that she would tell the applicant to stop, but he did not. Asked why she did not tell her mother her answer was to the effect that she was afraid she would get into trouble.

20 There were some difficulties for the prosecution with respect to some of this evidence. In the first place, S gave no evidence confirming any of the incidents described by B. Concerning the bus incident, the subject of count 1, B was cross-examined as to the whereabouts of Cora on that occasion and her evidence was that Cora had driven to "Chicken Treat" in a red car. There was cogent evidence to the effect that Cora did not drive. Concerning the uncharged incident when, according to B, the applicant had driven B and S in the double-decker bus, there was evidence that the bus had not been driven for some time before B started going to the house. There were some other areas of B's evidence which the jury was entitled to conclude contained discrepancies.

21 On the other hand, the jury was entitled to think that B stood up well to a long cross-examination. She was cross-examined on the basis that none of the events described by her had happened at all, and that they were either a figment of her imagination or had been contrived at the instigation of the applicant's disaffected son, Donald. It would be fair to say that this line of cross-examination was not successful. So far as appears from the transcript, B's responses to the questions put to her in cross-examination were forthright, matter-of-fact and unembellished. She firmly denied all suggestions that she had made up her allegations and that she had been told what to say by Donald. Although she admitted having no recollection of many things that were put to her, that was not by any means always the case. For example, concerning the patio incident, the subject of counts 4 and 5, she had said in examination-in-chief that the applicant "was eating his lunch". Counsel for the applicant, Mr Nash, sought to test the veracity of that evidence by asking her about matters of detail, to which she readily responded. She said that the applicant had not come home for his lunch break that day and had his lunch in what she described as "the evening". Asked what the applicant was eating for his lunch, she said that "he was having the Saos, but I'm not sure what he had on them". She readily answered questions as to who else was at the house where they were at the time, what the applicant was wearing and as to matters of that kind. The jury was entitled to conclude that her evidence was, by and large and so far as it went, evidence of things actually recalled.

22 S was born on 6 November 1989. She gave evidence that she had lived at Huxtable Crescent in South Hedland with her mother, Imelda, her natural father, Barry (the first name will do) and her younger sister, although she was not living there now. Her evidence was that, when they lived at Huxtable Crescent, her mother and father worked and during the day she and her sister would be looked after by the applicant and his wife, Cora. She said that the applicant was a friend of her father's. Her evidence was that she and her sister would go to the applicant's house after school, on the weekends and during school holidays. She said that there would usually be other young children at the house, including B and B's younger sister. She gave evidence that there was a double-decker bus, coloured blue and white, parked behind the house. She gave a detailed and, so far as appears, an accurate description of the interior of the bus, including that in both the upstairs and downstairs levels there were beds. She said that, when she was upstairs on one of the beds, "Bert touched me". Her evidence was that the applicant touched her with "his tongue and his hands and his penis". Asked to be more specific, the effect of her evidence was that the touching was "inside the lip" of her vagina and, although she could not say how often this occurred, she was touched in those ways "on more than one occasion". This evidence was not the subject of any count on the indictment.

23 She gave evidence that on one occasion the applicant walked her home to Huxtable Crescent from the applicant's house. Walking ahead of them was her father, who was piggybacking her sister. She was being piggybacked by the applicant. Asked if anything happened to her, she said that "he touched me". When questioned further, she gave evidence to the effect that he touched her "inside" the "lip". By this she said she meant "my private lip". This was the direct evidence in proof of count 6.

24 Her evidence was that on one occasion the applicant and her father took her for a swim in the pool in the house next door to the applicant's house. She said that whilst she was in the pool with the applicant "he touched me". She said that he touched her with his "hands" and that the touching was "inside the lip of my private". This was the direct evidence in proof of count 7.

25 Asked about other incidents, she gave evidence that the applicant had once taken her to a beach, laid her on a towel, taken down her knickers and touched her "in the lip" with his tongue. Her evidence was that two teenage girls came on the scene and the applicant quickly pulled up her knickers. S also gave evidence that in one of the bedrooms in the applicant's house the applicant had touched her "in my private" with his penis, his hands and his tongue. She gave evidence that on a number of occasions, the applicant took her out in his car and touched her "on my private" with his hands whilst driving. On some of these occasions, her sister and father were also in the car in the back. She gave evidence that the applicant took her and her sister "on more than one occasion" to what she described as a "drinks place" where he touched her "private" with his tongue while her sister "played outside on the swings". The complainant described the drinks place and it turned out to be the premises of a social club to which the applicant belonged. There was evidence that although he did not carry the keys to the premises, he knew how to get hold of them.

26 S was extensively cross-examined, but remained firm in her evidence as to the happening of the events which she had related in examination-in-chief. The most that counsel was able to demonstrate was that S could not say when the incidents of sexual misconduct happened and was vague as to many surrounding details: for example, as to exactly who else was present on particular occasions, what clothes the applicant was wearing and the like. On the other side of that, however, cross-examination did produce some further details which the jury were entitled to consider had the ring of truth. S explained in cross-examination, in relation to the incident in the neighbour's pool, that they were able to use the pool because the neighbour was away and the applicant's youngest son, Hubert, was looking after the neighbour's house. That is something the jury was entitled to think would not have been made up on the spot by a 9-year-old. As to the pool incident itself, she was cross-examined as to what she was wearing and gave evidence that she was not wearing bathers, but "a big T-shirt and knickers" and after giving evidence as to the swimming pool furnishings, which there is no reason to think was inaccurate, she said that the incident happened "in the deep end".

27 As to the beach incident, S was cross-examined to suggest that she was referring to a family outing to a particular beach at "Finnucane". She readily admitted going on an outing to a beach at Finnucane with the applicant and other members of the family, but was firm that the incident which she had related did not happen on that occasion, but on an occasion when the applicant took her to a different beach.

28 S was cross-examined as to the incident which she had described as having happened in one of the bedrooms in the applicant's house. Counsel for the applicant at trial endeavoured to test the veracity of that evidence by pressing S for detail, expecting she could give none. He asked, "Do you remember which bedroom it was?" She answered, "Yes." She was then asked, "Which bedroom was it?" She answered, "Bert's and Cora's bedroom."

29 It would be fair to say that the responses of both B and S to what was a searching and thorough cross-examination was such as to entitle the jury to conclude that either they were speaking of events of which they had a recollection or they were 9-year-olds of unusual poise, guile and presence of mind.

30 Still, it is a feature of the case which must not be lost sight of that the only direct evidence against the applicant in respect to the offences charged in counts 1 to 5 - which included two of the four offences alleged to have been committed against the complainant S - came from the complainant B. The complainant S gave no evidence in respect to the bathtub incident, nor in respect to the patio incident nor did she give any evidence which would tend to confirm B's evidence of numerous uncharged acts involving both girls. The complainant B was not present on the occasions in which it is alleged that the applicant assaulted S whilst piggybacking her and whilst swimming with her in the neighbour's swimming pool. The only direct evidence against the applicant in respect to those incidents - counts 6 and 7 - was the evidence of S.

31 There is another side to this, however. It is quite inconsistent with the idea that their respective stories were the product of a conspiracy to concoct evidence, an allegation which was a principal plank in the defence case.

32 The Crown called Dr J J Hogan, a specialist paediatrician, who gave evidence that she examined B on 7 January 1998 and S the next day. As to B, Dr Hogan's uncontradicted evidence was that the condition of B's hymen and vaginal area was consistent with allegations of repeated sexual assault involving trauma to the vaginal area with penetration of the vagina. This opinion was challenged, but Dr Hogan was not persuaded under cross-examination to change it or qualify it. As to S, her evidence was that there was no conclusive evidence of sexual assault.

Grounds 1.1 and 7: Should the indictment have been severed?

33 Prior to the commencement of the trial, an application was made by defence counsel to sever the indictment. In effect, the application was that counts 1 to 5 be tried separately from counts 6 and 7. This application was refused and, by the first and seventh grounds of appeal, it is pleaded that the application ought to have been granted.

34 Senior counsel for the applicant, Mr Holdenson QC, submitted that the only justification for trying counts 1 to 5 with counts 6 and 7 might be if the evidence to be given in proof of one group of charges was admissible under similar fact doctrines in proof of the other group of charges. If that submission is correct, the appeal must succeed because, as between the two groups of offences, it was not a similar fact case

35 In cases alleging multiple sexual offences against more than one complainant, there will nearly always be a severance of the trials involving the separate complainants if the evidence given in proof of the offences committed against one complainant is inadmissible in the trial of the offences alleged to have been committed against the other complainant. The risk of prejudice to the accused in a joinder of trials involving all complainants is just too great. In R v T (1996) 86 A Crim R 293, Southwell AJA said, at 299:

"To prove that a man is sexually attracted to young children is to show an unnatural propensity ... This, of course, is one of the reasons why in such cases one rarely sees a trial where more than one victim is involved; almost without exception, it is only where the similar fact doctrine applies that a trial will involve offences against more than one victim."

36 As to what is similar fact evidence, in Director of Public Prosecutions v Kilbourne [1973] AC 729 Lord Hailsham LC drew attention to a summing up to the jury by Lord Aitchison in the Scottish case of HM Advocate v AE (1937) JC 96 at 99, which he described as a "valuable direction to the jury" concerning similar fact evidence and I set it out here to illustrate the distinction between the case which we are considering and those cases which may properly be described as similar fact cases. Lord Aitchison told the jury:

"Now, it is a well-established rule in our criminal law that you do not prove one crime by proving another or by leading evidence tending to show that another crime has been committed. That is a good general rule. But then, when you are dealing with this class of crime there is some relaxation of the rule, otherwise you might never be able to bring the crime home at all. Let me give you an illustration that is not at all unfamiliar - there are many cases of it, especially in our large cities - you get a degraded man who finds some little girl in the street, and he gives her a penny, and gets her to go up a close, and there he does something immoral with her, and then he sends her away. Nobody sees what he has done; there is only the evidence of the child. And then the same thing happens with another child, and again nobody sees that; and then there is a third child, and the same thing happens again. Well, of course, if you had to have two witnesses to every one of these acts - they are all separate crimes - you would never prove anything at all. But that is not the law. The law is this, that, when you find the man doing the same kind of criminal thing in the same kind of way towards two or more people, you may be entitled to say that the man is pursuing a course of criminal conduct, and you may take the evidence on one charge as evidence on another. That is a very sound rule, because a great many scoundrels would get off altogether if we had not some such rule in our law. Now, I give you this direction in law. If the conduct which is the subject of these charges is similar in character and circumstances, and substantially coincident in time, and you believe the evidence of both these girls, then the evidence of the one may be taken as corroboration of the evidence of the other. This is in substance what was laid down in the High Court in the case of Moorov v HM Advocate (1930) JC 68. That was a case where an employer in a Glasgow warehouse used to take one girl employee at a time up to his private office, and there commit an act of indecency, and then she was put out of the door. Nobody saw the act of indecency committed. There was only the girl's word for it. And then he would get another girl to go up, and the same thing would happen. Again nobody else was there, and there was just the girl's word for it. Now, no doubt there were in that case a number of these criminal assaults committed upon separate girls, whereas in this case we are only dealing with two, but I do not hesitate to tell you - and I take the responsibility of telling you - that if you believe the evidence of these two girls whom you have seen in the witness-box, and accept it as the evidence of reliable witnesses, you may take the one as corroborating the other, and therefore, as against the accused on each charge."

37 In Director of Public Prosecutions v Kilbourne (supra) Lord Hailsham LC put it in the following way at 748 - 749:

"When a small boy relates a sexual incident implicating a given man he may be indulging in fantasy. If another small boy relates such an incident it may be a coincidence if the detail is insufficient. If a large number of small boys relate similar incidents in enough detail about the same person, if it is not conspiracy it may well be that the stories are true. Once there is a sufficient nexus it must be for the jury to say what weight is given to the combined testimony of a number of witnesses."

38 In Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 295, Mason CJ, Wilson and Gaudron JJ held that similar fact evidence is admitted because it is directly relevant to prove the commission of the disputed acts. They explained that the probative value of the evidence lies "in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred."

39 As to what is the "requisite" degree of similarity, Mason CJ, Wilson and Gaudron JJ said, at 294 - 295:

"Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution."

40 In this case, there is no special feature which gives the acts described by S in proof of counts 6 and 7 a striking resemblance to the acts upon which counts 1 to 5 are based, or which reveals an underlying unity, system or pattern in the applicant's conduct and there is no other basis upon which it is suggested that the evidence in support of counts 1 to 5 could qualify as similar fact evidence in support of counts 6 and 7. The offences charged against the applicant in counts 1 to 5 all happened at the applicant's house while the children were being cared for by the applicant and his wife. The offences charged against the applicant in counts 6 and 7 did not occur under those circumstances, but under very different circumstances. The only similarity between the two groups of offences is the character of the act, and that is not enough.

41 There is another factor which may be destructive of the probative force of similar fact evidence in a given case and that is the possibility of concoction. If the possibility of a conspiracy between the witnesses giving similar fact evidence cannot be excluded, the probative force of the evidence deriving from its similarities is removed and there is, therefore, no basis on which such evidence may be admitted: Hoch v The Queen (supra). In this case, it seems to have been conceded by the Crown prosecutor at trial that the circumstances (especially the association between the girls and the manner in which their disclosures came to be made) were such as to give rise to at least the possibility of concoction.

42 Therefore, if the basis for the decision not to sever the trials of counts 6 and 7 from the trials of counts 1 to 5 had been that the evidence on counts 1 to 5 was admissible on counts 6 and 7 under the similar fact doctrine, that decision could not have been supported. But that was not the basis of the decision that all counts be tried together. In fact, the Crown did not seek to lead the evidence in question as similar fact evidence and the Judge made it clear that the evidence could not be received as similar fact evidence, if only because of the possibility of a conspiracy between the girls. The question, therefore, is whether the decision not to sever the trials was correct on other grounds. In my opinion, it was.

43 Although there were two complainants which, as I have said, will nearly always result in a severance in cases of this kind there was a definite evidentiary overlap linking the counts. Dealing first with count 1 which arises out of the bus incident involving only B, the evidence given by B plainly was not evidence of any other offence. But the separate trial rule does not require that there be separate trials of sexual offences allegedly committed by an accused against the one child. Such a rule would place intolerable burdens on the system and has never been the practice in this State. Moreover, the evidence of each offence would usually be admissible in the trial of each other offence, as relationship evidence. The consequence of this is that separate trials would not improve the accused's prospects of acquittal. Therefore, it was entirely proper that counts 1, 2 and 4 (the counts alleging sexual offences by the applicant against B) be tried together.

44 Coming now to count 3, this count arises out of the bathtub incident, involving both B and S. In my opinion, B's evidence in proof of the offence charged in count 2 - the bathtub incident involving herself - was admissible against the applicant not only in proof of the offence charged in count 2, but also (a) as relationship evidence in respect to the other charges involving B, and (b) as part of the res gestae with respect to the same bathtub incident involving S and which is the subject of count 3. In this context, res gestae evidence simply means evidence of facts forming part of the criminal transaction: R v Makin (1893) 14 NSWLR (L) 1 at 18, cited with approval by McHugh J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 628. A good example in the context of sexual crime is R v O'Regan [1961] Qd R 78, also cited with approval by McHugh J in Harriman at 629. The accused was charged with incest with one of his two daughters. The Court of Criminal Appeal held that evidence to the effect that he had called both girls to his bedroom, sent them away and then called one back and had intercourse with her before calling the complainant into the room and having intercourse with her was correctly admitted.

45 In the case before this Court, the evidence given by B with respect to the bathtub incident involving both girls was evidence of one incident of deviant sexual behaviour or, as it was put in R v Fitzpatrick [1963] 1 WLR 7 by Lord Parker CJ at 9, "one episode of sexual excitement disclosing unnatural tendencies" on the part of the applicant. The jury would have been entitled to hear a full account of that incident, both at the trial of the applicant in respect to count 2 involving B and, as well, at the trial of the applicant in respect to count 3 involving S. That this is so is also made clear in R v Correia (1996) 15 WAR 95 at 102; O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566 at 577 per Dixon J; R v Etherington (1982) 32 SASR 230 at 235. It was, therefore, entirely proper that counts 2 and 3 be tried together. As it was also proper that counts 1 and 2 be tried together, it follows that it was proper that counts 1, 2 and 3 be tried together.

46 B's evidence in proof of count 3 (the bathtub incident involving S about which S gave no evidence) was also admissible as relationship evidence with respect to the other three counts of offences involving S; that is, counts 5, 6 and 7. On this ground, it was proper that count 3 be tried with counts 5, 6 and 7.

47 What I have said about the evidentiary position with respect to the two counts involving the separate complainants arising out of the single incident in the bathtub applies, mutatis mutandis, to the two counts, that is, counts 4 and 5, involving the separate complainants arising out of the single patio incident. In whatever combination the trials were arranged, the jury would have been entitled to hear B's full account of each single incident in the bathtub and on the patio involving both complainants.

48 B's evidence in proof of count 5 was also admissible at the trial of counts 3, 6 and 7 as evidence of the relationship between the applicant and S.

49 Mr Holdenson submitted that there would have been no inconvenience to the Crown in conducting a separate prosecution of counts 6 and 7 without calling any evidence from B. He said:

"The trial on counts 6 and 7 could proceed very readily, simply because only S gave evidence of counts 6 and 7 and there was a lot of relationship evidence which only came from S in respect of S."

50 His point was that the Crown would not have been deprived of relationship evidence in a separate trial of counts 6 and 7 if B was not called as a witness to give the evidence which she could give as to the relationship between the applicant and S, because S gave substantial evidence of that kind herself.

51 The answer to this is that, subject to the overriding discretion of the trial Judge to exclude prejudicial evidence, the Crown is entitled to call all the evidence that it has, generally speaking. If the trials in respect to counts 6 and 7 had proceeded separately from the trial of counts 1 to 5, the Crown would have been perfectly entitled to call B to give evidence of the applicant's conduct towards S, which was the basis of counts 3 and 5, as relationship evidence even though S was also able to give relationship evidence in the form of evidence of uncharged acts committed upon her by the applicant. The Crown was entitled to support the relationship evidence of S with relationship evidence given by B.

52 In summary, therefore, it is not the case that if counts 6 and 7 had been tried separately from counts 1 to 5, the jury would not have heard evidence from B. They would have heard the evidence of B on counts 3 and 5 as relationship or tendency or propensity evidence and they would have heard the evidence of B on counts 2 and 4 as res gestae evidence with respect to counts 3 and 5.

53 In my opinion, grounds 1.1 and 7 have not been made out. The decision not to order severance of the trials was correct.

The sufficiency of the "two complainants" direction

54 The next ground of appeal which was argued is ground 8 as follows:

"8. The learned trial judge erred in his directions to the jury in that he failed to direct the jury either sufficiently or at all that in considering any one count on the indictment the jury must not have any regard whatsoever to any allegation or evidence as to any sexual misconduct directed at or involving the other complainant."

55 As this was not a similar fact case, and there were multiple counts involving two complainants, there was a requirement to warn the jury not only that proof to their satisfaction of guilt upon one count must not lead them automatically to a guilty verdict on any other count but that the evidence led in proof of an offence against one complainant did not prove an offence against the other complainant.

56 The choice of words is a matter for the trial Judge, of course, but in whatever terms the direction is given, it must instruct the jury not only that they must draw a distinction between the evidence on each count and the evidence on every other count, but that they must not supplement the evidence on any particular count involving one complainant by looking at the evidence about the other complainant.

57 In this case, the direction given by the learned trial Judge was as follows:

"The first thing is that we have here an indictment which you have seen several times and there are seven counts on the indictment. That means that we are having seven separate trials, all wrapped up in one as a matter of convenience. Obviously we could have had seven separate trials, in which case there would have been a lot of duplication of evidence and a lot of waste of public money and the like, so the fact that they are all together is simply a matter of convenience. You must look at each count separately because each count is an entirely separate matter."

58 His Honour then addressed the jury on onus and standard of proof and said:

"It's very important that I again remind you that there are seven counts; there are seven separate matters to be decided. It doesn't follow that there will be the same verdict with respect to all of them at all. Each one of them must be looked at separately and considered entirely separately."

59 His Honour dealt with other matters and went on:

"You may only find that a particular count on the indictment happened if you are satisfied beyond reasonable doubt that it occurred, that the particular incident complained of occurred.

The evidence that an offence or offences was committed with respect to one of the complainants is not admissible as evidence that an offence was committed against the other. Even where the offences are alleged to be of a similar kind and to have been committed at the same time - for example, with respect to counts 2 and 3, and 4 and 5 - you must look at the evidence on each count separately ...

It may be, as I said a moment ago, that the verdicts will all be the same. It may be that they will not. A conviction or an acquittal on any count with respect to either of the complainants is not relevant to your verdict with respect to any count with respect to the other. In particular if you find the accused guilty on any one count, you should not therefore assume that he is a person likely to commit offences and therefore convict him of the other counts. Please look at each count separately and do not bring in a verdict of guilty with respect to any of the counts unless you are satisfied beyond reasonable doubt that it occurred."

60 In my opinion, that was a sufficient direction in this case. There was an adequate "separate counts/separate trial" direction and an adequate direction that the evidence led in support of a count involving B did not go in proof of any count involving S.

61 Mr Holdenson submitted that there was a fatal deficiency in the direction in that it did not contain an instruction to the effect that the evidence led in support of counts 1 to 5 did not, as he put it, "in any manner go in proof of counts 6 and 7 and that evidence led in support of counts 6 and 7 did not in any manner go in proof of counts 1 to 5". Mr Holdenson went so far as to submit that the jury should have been told that they must "disregard completely" the evidence led on one set of counts in considering the other set. In my opinion, that would have been a misdirection. The jury was entitled to make use of the evidence led in respect of counts 3, 5, 6 and 7 as relationship evidence in considering each of those counts separately. It would have been wrong and confusing to tell them that they could make use of evidence of uncharged acts involving S for that purpose, but that they must disregard completely the conduct comprising the other charged acts involving S. The use to which they could put the evidence of other charged acts involving S was the same as the use to which they could put the generalised evidence of uncharged acts involving S, provided, of course, they found the applicant guilty of those charged acts.

Grounds 5 and 9: The sufficiency of the direction on relationship evidence

63 These grounds raise for consideration, yet again, the sufficiency and correctness of directions as to the use that may and may not be made of relationship evidence, which, in this case, was the general evidence of uncharged sexual acts.

64 I use the expression "relationship evidence" only for convenience, recognising that in sexual cases it is an incomplete description of evidence of sexual molestation extraneous to the offences charged. As cases such as Gipp v The Queen (1998) 72 ALJR 1012 show, this kind of evidence is often called similar fact evidence, propensity evidence, guilty passion evidence, tendency evidence and background evidence: see especially per Kirby J at 1040 - 1041. See also R v S (1998) 103 A Crim R 101 per Thomas JA at 110.

65 The rule which excludes evidence showing nothing more than that the accused has a criminal disposition is fundamental: Thompson v Rex [1918] AC 221; R v Sims [1946] 1 KB 531; Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 116. Many cases have now laid it down, however, that if propensity or dispositional evidence has a function which goes beyond proof of mere bad disposition, it may be admitted. This is the basis on which relationship evidence is admitted. The evidence is regarded as actually probative of the disputed conduct. The particular way in which such evidence may be probative depends on the facts of the particular case. Of the very general relationship evidence in Gipp, McHugh and Hayne JJ said at 1026:

"It was admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant. Without evidence of the background and the continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed "unreal and unintelligible". Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described ... Neither on this or any other occasion did the complainant tell her mother what had happened. Knowing that this was not the first time that the complainant and the appellant had engaged in sexual activity helps to explain the complainant's apparent lack of surprise at being called into the bathroom to gratify the appellant's sexual desires and her matter of fact recounting of the incident. The regularity with which incidents such as this occurred also helps to explain her failure to mention the incident to her mother and the appellant's confidence - manifested by the omission of any threat or inducement - that the complainant would regard the incident as nothing unusual."

66 In this case, the generalised relationship evidence was admissible on several of these particular grounds. It revealed a continuing and strong sexual interest by the applicant in each complainant and showed the actual existence of a sexual relationship between the applicant and each complainant. Insofar as it revealed a process of seduction over a period of time, it helped to explain why there was no immediate complaint by B on the happening of any specific incident. In the case of S with respect to counts 6 and 7, the relationship evidence regarding the applicant and S helps to explain how it was that the applicant might think he would get away with acts of sexual molestation whilst piggybacking S in the presence of her father and whilst in the swimming pool with S. In the case of the bathtub incident, it tended to rule out innocent washing and accident. Likewise, in the case of the piggybacking incident, it tended to rule out accident. In summary, it was evidence which would enable the jury to "understand the context of the incidents that were the subject of the charges", if I might use the words of McHugh and Hayne JJ in Gipp at 1027.

67 The relationship evidence in this case was, therefore, plainly admissible and it is not now contended on behalf of the applicant that it ought not to have been admitted. But because the evidence was prejudicial and admitted for a limited purpose, it was necessary that the jury be instructed how to use it. The principle is clear and has been stated many times in many cases, some of the more recent of which are R v Grech [1997] 2 VR 609; R v J (No 2) [1998] 3 VR 602; R v Dolan [1992] SASC 3638; (1992) 58 SASR 501; R v Kemp [1997] 1 Qd R 383; R v W [1997] QCA 415; [1998] 2 Qd R 531; Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100; R v S (supra); Gipp v The Queen (supra); BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275.

68 What is perhaps not quite so easy to decide in any given case is what should be the content of the direction. I think this must largely be dictated by the facts of the case, although it is possible to formulate in general terms what may be described as the minimum requirements. What emerges from the cases is a broad consensus that the directions to the jury must leave them with an understanding of at least three things: (1) the jury may have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true; (2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light; and, (3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct the subject of the charge has been proved, they cannot use the evidence of uncharged conduct to convict the accused.

69 As McHugh J pointed out in BRS v The Queen (supra) at 305, in some cases the directions will have to be more specific. An obvious case would be if the Crown seeks to rely on the general behaviour evidence for a specific purpose such as, for example, corroboration. It will be for the Judge to direct the jury whether or not they may use it for that purpose and, perhaps, in what way they may do so. Then a direction such as that given by Lord Aitchison in HM Advocate v AE (supra) might be appropriate. Depending on the nature and volume of the relationship evidence, it may be important to give particular emphasis to how it may not be used. R v Grech (supra) seems to have been such a case. I gather this from the judgment of Callaway JA at 614, where his Honour said:

"The evidence of uncharged acts, and especially that relating to the incident in Sydney when the complainant was only 15 years old, was of real significance in the trial. There was more evidence about that incident than all the counts on the presentment put together. It was highly prejudicial and it was necessary for the jury to be expressly directed as to the ways in which it could not be used."

70 It is also at least most desirable, if not essential, that the warnings be given at an early stage, preferably immediately before but generally no later than immediately after the evidence in question; and that the jury be reminded of the warnings in the final charge: R v Beserick (1993) 30 NSWLR 510 at 516.

71 At the trial, the video of the evidence of S was played first, in proof of counts 6 and 7. Before any other evidence was given, the learned trial Judge instructed the jury in the following terms:

"Although I will speak to you in some detail at the end of the case when all the evidence is in, I thought it appropriate at this stage to mention one matter to you. [S] has given evidence of sexual matters other than those the subject of counts 6 and 7. I expect that [B], when her evidence is played to you, will also give evidence of a similar nature; that is, of sexual dealings other than those referred to in the indictment.

General evidence of a sexual nature relating to the accused and either of the two girls is not evidence that the particular offences the subject of the indictment occurred. It goes to the relationship between the accused and each of the girls. It puts in context the evidence the crown relies upon to prove each charge, but it is no more than that. Such evidence of a general nature does not prove that the charges the subject of the particular indictment have occurred."

72 He then indicated to the jury that he would explain this in a little more detail in his summing up at the end of the trial.

"As I said to you the other day, general evidence of a sexual nature relating to the accused and either of the two girls is not evidence that the particular offences the subject of the indictment occurred. It goes to the relationship between the accused and each complainant. It puts in context the evidence the crown relies upon to prove each charge but it does no more than that. You can only use evidence of relationship for that very limited purpose and you can only use it if you are satisfied beyond reasonable doubt that it occurred.

Even if you are satisfied that there was a sexual relationship such as described between the accused and either of the complainants, you must not assume that each of the offences occurred. You cannot move from a general finding to a particular finding."

74 He then went on to give the "separate counts/separate trials" direction, in terms which have already been set out.

75 As can be seen from the above passages taken from his Honour's charge, the jury was instructed that they may not use the generalised evidence of sexual behaviour unless "satisfied beyond a reasonable doubt that it occurred". I think that direction was overly favourable to the applicant. This kind of evidence - evidence of general behaviour not the subject of a charge - is circumstantial evidence (Harriman (supra) per McHugh J at 630; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 per Mason CJ, Deane and Dawson JJ at 482 - 483) and there is no requirement that individual items of circumstantial evidence be proved beyond reasonable doubt. It is not necessary to direct a jury in such terms: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, especially per Dawson J at 585. It is generally sufficient in this kind of case that the jury be told to the effect that, unless they find the evidence of extraneous conduct reliable and believe it to be true, they should disregard it: R v T (supra) at 300, citing with approval the unreported decision of the Court of Appeal of Victoria in R v Vornax, unreported; Court of Appeal Vic; 15 November 1995.

76 It can also be seen that the jury was correctly instructed as to the reason why the evidence was admitted and as to the use to which it could be put. The Judge also told them that they could not put it to any other use. Further, there was a clear direction that the generalised evidence of sexual conduct "relating to the accused and either of the girls is not evidence that the particular offences the subject of the indictment occurred". That instruction was repeated a few sentences later when his Honour said, "Such evidence of a general nature does not prove that the charges the subject of the particular indictment have occurred".

77 The applicant's main complaint is that directions in these terms do not go far enough. Mr Holdenson put it this way in argument:

"He has not said: 'And you must not reason that because [the applicant] engaged in that sexual conduct with girl B or girl S on one or more of the other occasions, he is the kind of person who is likely to have done so on those occasions which are set out in numbered form on the indictment' ... He has not said to them: 'Don't use the evidence in a propensity manner.' ... He hasn't said to them: 'The commission of the offences can be proved only by the evidence relating to them'."

78 Dealing with the last part of this submission first, in my opinion, there was an adequate instruction to the effect that "the commission of the offences can be proved only by the evidence relating to them". That instruction is contained in the separate counts/separate trials direction set out earlier in this judgment, coupled with the direction that the generalised direction "does not prove that the charges the subject of the particular indictment have occurred".

79 The first part of the submission raises the question whether the charge must not only direct the jury not to use the evidence of sexual misconduct that is not the subject of the charge to reason that the accused committed the charged offences, but must also expressly direct them not to reason that the accused committed the offence because he is the kind of person who is likely to have done so. The learned trial Judge's charge in this case did not contain a direction in such terms.

80 There are cases which say that the charge should contain a direction in terms of the italicised words. In R v Grech (supra) at 614 and in R v J (No 2) [1998] 3 VR 602 at 642, the Victorian Court of Appeal held that, in the circumstances of those cases, a direction should have been given to the following effect:

"(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and [the complainant] as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it -

(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and

(ii) they must not reason that, because the applicant engaged in sexual conduct with [the complainant] on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasion charged." [Italics added]

81 In Beserick, however, the New South Wales Court of Criminal Appeal held that the direction should be to the effect that the jury must not reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, "he must also have done so on the occasion which is the subject of the offence charged": see per Hunt CJ at CL at 515 - 516. This is not quite the same form of direction as is given in Victoria. It does not contain a specific reference to disposition or tendency. In R v Dolan (supra), King CJ considered it was sufficient for the jury to be told that it is not permissible to convict the accused on the basis that, although the conduct which has been identified as the subject of a charge has not been proved, at least some conduct alleged by the alleged victim has occurred: see at 503. It was not held that there was a requirement to instruct the jury in terms that they must not reason that the accused "was the kind of person who was likely to" have committed the offence charged. Mr Holdenson referred to and placed considerable reliance on the judgments in the Queensland case of R v Kemp (supra). In that case, at 398 Fitzgerald P held that it was "incumbent upon the trial judge to ensure that the jury fully understood that any process of propensity reasoning was totally wrong". With respect, this seems to go too far and does not seem to be in accordance with the more recent authorities. The undeniable fact is that relationship evidence is propensity evidence. To say that it is admissible because it has a function beyond that of showing the accused to be of a bad disposition, is not to deny its character as propensity evidence nor to deny that the jury may use it as propensity evidence in considering the cogency of the prosecution case. They may do so if the evidence has:

" ... a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it."

Pfennig v The Queen (supra) per Mason CJ, Deane and Dawson JJ at 485.

82 As Dawson and Gaudron JJ said in B v The Queen [1992] HCA 68; (1992) 175 CLR 599, at 618:

" ... if the evidence of other offences goes beyond showing a mere propensity or disposition to commit crime or a particular type of crime and points in some other way to the commission of the offences in question, then it will be admissible if its probative value for that purpose outweighs its prejudicial effect. That is not to say that it may not still be evidence of propensity or disposition, but it will then be evidence of propensity or disposition of a particular kind which in the circumstances has a degree of relevance justifying its admission."

83 In other words, propensity evidence in the nature of relationship evidence is admitted because it is relevant to the issue before the jury. It adds to the probabilities of the prosecution case. Perhaps it is better to say it lessens the improbability of the prosecution case. At the very least, the jury would be entitled to have regard to the evidence in considering the truthfulness of the complainant's evidence with respect to the charged offence. When all is said and done, the probative value of the evidence lies largely in proof of the accused's disposition, as Dawson J said in Harriman v The Queen (supra) at 600. In Pfennig v The Queen (supra), McHugh J said this, at 526:

"Since Ball, it has never been doubted that in a sexual offence case, evidence of the conduct of the parties is relevant to prove that the offence charged occurred, notwithstanding that the only reasoning process is propensity: see, eg R v Gellin (1913) 13 SR (NSW) 271 & Reg v Etherington (1982) 32 SASR 230.

Ball and the cases that follow it establish beyond dispute that the Anglo-Australian law of evidence does not prohibit reasoning from criminal propensity."

84 I think that what the Judge must do is head off impermissible propensity reasoning.

85 In Kemp (supra), Fitzgerald P went on to say at 399:

"Further, the trial judge was required to direct the jury in clear, unequivocal terms that the complainant's generalised evidence could not be used by them in their evaluation of her specific allegations against the appellant except that, if they did not believe, or had a doubt about the credibility or reliability of, her generalised evidence, that was a matter to be brought to account in favour of the appellant in their consideration of the complainant's specific allegations."

86 As Malcolm CJ observed in Kailis v The Queen (supra) at 128, this paragraph is inconsistent with the reasons supporting the admissibility of this kind of evidence which have been expressed in a number of authorities, including by the High Court in BRS v The Queen (supra) and Gipp v The Queen (supra).

87 In R v K [1997] SASC 6193; (1997) 68 SASR 405, the Court of Criminal Appeal of South Australia per Doyle CJ at 412 upheld the sufficiency of a relationship evidence direction which was in the following terms:

"You should concentrate on the accounts [B] says he does remember. That is these four counts. These are the only offences charged against the accused. Even if you were to be satisfied that these alleged, not charged, incidents of touching or holding of [B's] penis occurred, that does not mean the accused committed the offences charged, or any of them. Those other alleged incidents were led only to, as it were, set what the Crown says was an ongoing illicit relationship between [B] and the accused. In any event, you may think they lacked any real specificity. It is a matter for you and what assessment you make of [B's] evidence as a whole having regard to all the evidence you have heard."

88 This was held to be adequate to make it clear to the jury in that particular case that they must not convict the accused on the basis that although the charged conduct had not been proved, some such conduct had occurred on other occasions. I should say that Doyle CJ did add that "it might have been better to say a little more" (412 - 413).

89 Unfortunately for trial Judges, it is a subject on which one can find a range of judicial pronouncements which are not easy to reconcile. The trial Judge's problem is, of course, to draw for the jury in language they will understand the fine distinction between impermissible use and permissible use of extraneous sexual conduct. In R v W (supra) at 534, the Queensland Court of Appeal thought there is some "artificiality" in a charge which, on the one hand, directs the jury that uncharged sexual acts may be used to show the existence of a sexual relationship between an accused and a complainant, but, on the other hand, instructs them not to reason from the evidence that the accused was likely to have committed the offences because he has a propensity to commit offences of that kind. The artificiality was not expatiated upon by the Court of Appeal, but it is easy to see. The jury might well be puzzled by a direction that, in considering whether the Crown has proved its case, they can use evidence of uncharged behaviour as revealing propensity arising from illicit passion for the complainant, but that they cannot use it insofar as it establishes "mere" propensity to behave in that manner. The distinction which such a direction tells the jury to draw is undoubtedly a real distinction, but was understandably described by Malcolm CJ in Kailis v The Queen (supra) at 126 as "narrow". As Thomas JA said in R v S (supra) at 111:

"The real danger to an accused lies in the evidence of specific acts, and if a jury does not accept a complainant's evidence about the specific acts it is very difficult to think that they are going to accept the allegation that 'he kept doing the same sort of thing'. It therefore seems to me that there will be many cases where the suggested warning about the evils of propensity evidence would be at best confusing, and at worst counterproductive."

90 In my opinion, it is not the law that, in every sexual assault case in which generalised relationship evidence is admitted, the jury must be expressly directed that they must not engage in any form of propensity reasoning; and must be directed that they must not reason that the accused was the kind of person who was likely to have done the act charged.

91 As the authorities presently stand, I think the best guidance for trial Judges is provided by King CJ in R v Dolan (supra). Having explained in standard terms the limited purpose of relationship evidence and that it cannot be used for any other purpose and that it cannot be used at all unless it is found to be credible, it will usually be sufficient to instruct the jury that they cannot convict the accused unless they find, on the evidence relating to each charge, that he is guilty of that charge; and, if they are not satisfied that the charge in question is proved, they cannot convict the accused on the basis of the evidence of the other conduct. Of course, there will be cases in which it will be necessary to act on the advice of Doyle CJ in R v K (loc cit) and say a little more.

92 In this case, the trial Judge's direction to the jury included a direction that the jury was not to use evidence of uncharged conduct to reason that the accused committed the offence charged. The direction is in his Honour's summation and is to the effect that the jury may only use the evidence of relationship for the "very limited purpose" of putting "in context the evidence the Crown relies upon to prove each charge" and in the direction that, even if the jury was satisfied that "there was a sexual relationship such as described between the accused and either of the complainants, you must not assume that each of the offences charged occurred. You cannot move from a general finding to a particular finding".

93 In my opinion, that was an adequate direction not to engage in impermissible propensity reasoning. It left the jury with the understanding that it was not permissible to convict the accused on the basis of the generalised evidence if they were not satisfied that the charged offences had occurred.

94 I would add that it is clear enough that the jury did not engage in impermissible reasoning in this case. The jury's verdict of not guilty on count 3 was quite inconsistent with such a manner of reasoning. It was consistent only with the jury having engaged in a separate consideration of the evidence relating to each of the charges.

Grounds 10 and 11: The directions on evidence of complaint

96 The grounds of appeal next argued were grounds 10 and 11 which are as follows:

"10. The learned trial judge erred in his directions to the jury concerning:

(a) the absence of timely complaints by the complainants;

(b) the complainants' failure to make timely complaints; and

(c) thereby, the manner in which the jury might approach, assess, test and/or scrutinise the evidence of the complainants.

11. The learned trial judge erred in failing to direct the jury sufficiently as to:

(a) the absence of timely complaints by the complainants;

(b) the complainants' failure to make timely complaints; and

(c) thereby, the manner in which the jury might approach, assess, test and/or scrutinise the evidence of the complainants."

97 The evidence was that the first complaints were made by both complainants at the same time to Imelda, the mother of the complainant S, and to Donald, the applicant's son who by then was living with Imelda. The complaints were not made until 3 January 1998 which, in the case of B, was some two years after the last date upon which it was alleged that any of the charged offences were committed upon her. In the case of S, the last date in the indictment is 3 January 1998, but the course of conduct is alleged to have started as early as September 1992 and it was not suggested at trial that the last offence charged was a recent offence.

98 Much was made at trial and before this Court by counsel for the applicant as to the circumstances under which the complaints came to be made. As has been noted, the applicant and Barry, the natural father of S, were good friends. In mid-1996, the applicant's son, Donald, came to Port Hedland to live and work. He had parted company with the family some years previously and gone away. When he came to Port Hedland, he lived at the applicant's address for some weeks, using the bus as his quarters. He got to know Barry's wife, Imelda, and a relationship developed between them. This angered the applicant. There was an argument and Donald moved out in September 1996. In November 1996, Imelda left Barry, taking S and the younger daughter with her. By early 1997, Donald and Imelda were cohabiting. Meanwhile, B and her siblings and mother, Karina, had moved to Wickham. Karina and Imelda remained friends and kept in contact. Shortly after Christmas in 1997, an arrangement was made for B and her siblings to return to South Hedland for a short holiday at their grandparents' home. It seems that during this visit, B and her sister renewed their acquaintance with Imelda's children. On 3 January 1998, B and her sister were visiting Donald and Imelda's home and Imelda was to take all the children to the municipal swimming pool. There was some discussion about a person who frequented the swimming pool who was either suspected of molesting children or was the brother of someone suspected of molesting children. There is evidence that Donald delivered a warning to the girls about this person, telling them to look out for him at the pool and to stay away from him. The evidence is that B became very distressed. The evidence of Imelda on the subject is as follows:

"Then [S] and [B] went out of the room just crying. [B] was the one who was crying when she went out of the room ... and then I just asked [B], 'Why are you crying, [B]?' Then my daughter [S] just said, 'Yeah, it's okay [B] you can tell Donald.'

Were you and Donald present while this was happening?---Yes.

Just continue; what happened next?---Then [B] was crying and shaking and told Donald that she's been raped by his dad and my child also answered that she's also included, she's also there ... "

99 There was evidence that Imelda and Donald then took the children to the home of Donald's older sister, Debra, and reported the disclosure to her and then to the home of Donald's younger brother, Michael, and reported the disclosure to him. The girls were taken to the police the next day.

100 Evidence of complaint was led by the prosecutor from B as follows:

27 December. And at some stage did you tell someone about what had happened?---Yes.

Do you recall when that was?---I told my brother Zac.

Do you recall when you told your brother Zac?---On 27 December.

... and if I can take you through to Saturday 3 January 1998, did you tell someone else about what Bert had been doing to you?---I told Imelda and Donald."

101 Evidence was then led from her to the effect that shortly after telling Imelda and Donald she told her mother, who had come to South Hedland to take B and her sister back to Wickham.

102 She was cross-examined as to what response she had received from her brother, Zac, to whom she had first complained a few days earlier and she gave evidence to the effect that her brother simply told her to tell "a parent" because, in effect, he did not wish to be involved. Asked why she did not then immediately tell her mother, she gave evidence to the effect that she did not want to spoil her mother's birthday by telling her "something bad". Asked why she did not tell her mother the next day, her evidence was that "she forgot about it". The jury might have thought that there was actually not much opportunity at this time to tell her mother. The evidence was that on her mother's birthday or on the next day, she and Zac and the younger sister were taken to South Hedland by their grandparents for a week. It was during that week that the disclosure was made to Imelda and Donald in the circumstances described.

103 Debra and Michael both gave evidence for the defence, the object of which was to cast doubt on the genuineness of the complaints made by B and S. Debra said neither girl appeared to be at all disturbed or upset when Donald brought them to her house shortly after they had made their alleged disclosures to Donald and Imelda. Michael said that he overheard Donald telling the children, in effect, to sit down and make up matching stories before being interviewed by the police. Donald was cross-examined about that and adamantly denied it. B was cross-examined as to whether she had been told what to say by Donald and firmly denied it. She denied that there was any arrangement whereby she and S were to give the same story to the police. In fact, as has been related, the stories they did give were not the same. The jury was entitled to reject that part of the defence case which rested upon concoction.

104 The basis upon which the evidence of the girls' complaints was admitted is not clear. There seems to have been no debate as to whether the evidence qualified as evidence of prompt complaint on the principles discussed in Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 and Suresh v R [1998] HCA 23; (1998) 153 ALR 145. Mr Holdenson told us that that was not the basis upon which the evidence was admitted. He told us that the evidence was not objected to because the defence wished to rely on the absence of prior complaint and in particular the circumstances of the making of the complaints as tending to show that the complaints were the product of a preconcert. As has been observed, that, indeed, was the main thrust of the cross-examination of the complainants with respect to their complaint evidence.

105 Section 36BD of the Evidence Act is in the following terms:

"Where on the trial of a person for a sexual offence ... evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -

(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and

(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence."

106 The trial Judge gave the following direction to the jury:

"You have heard that neither complainant complained of the alleged offences until some time after they are said to have happened. The absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false. There may be many good reasons why a victim of an offence such as is alleged may hesitate in making or may refrain from making a complaint of such an offence.

Young children may not fully understand what is happening. They may be fearful of the consequences and there was evidence given by B, I think, that there was some threat if she told what occurred, so there are a number of reasons why people may delay in making complaints."

That direction complied with the requirements of s 36BD. The proposition underlying these grounds of appeal is that the trial Judge was bound not only to give a direction in terms of s 36BD, but to "balance" that direction by instructing the jury that the jury might use the delay in the making of complaints in assessing the credibility of each complainant.

107 Mr Holdenson referred us to R v Omarjee (1995) 79 A Crim R 355, R v Miletic [1997] 1 VR 593 and R v Davies (1985) 3 NSWLR 276, in which it was said that such a direction - that delay was a fact which the jury could take into account in evaluating the complainant's testimony - is a direction that should be given as a general rule. See also R v K (supra) at 409. It is usual in Western Australia to give the direction and it need hardly be said that it must be given whenever necessary in order to ensure fairness (or, as Dawson J put it in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 435 "when fairness demanded it"). However, failure to give the direction does not necessarily mean that the trial has miscarried and the verdict must be set aside: Kailis v The Queen (supra) at 131, 135.

108 Mere delay in making disclosure of sexual assault is not, of itself, regarded as a factor which has a special forensic significance which the jury may not appreciate. The problem is not that they will fail to pay regard to it on the question of whether the complainants' story is false or not, but that they may make too much of it on that question. The tendency to be suspicious of the truth of an allegation of sexual misconduct, about which nothing was said at the time, and the tendency to make an assumption against the complainant as to the truth of the allegation in those circumstances, would appear to be the very reason why s 36BD was enacted. One might say it is the s 36BD direction which, in truth, provides the balance, in the general run of such cases.

109 Furthermore, as Lee J pointed out in R v Murray (1987) 11 NSWLR 12 at 16, (a case which was decided after R v Davies (supra)) the words of the direction which the statute requires to be given, of themselves as a matter of ordinary English, raise for the jury's consideration the weight to be given to a delayed complaint. As Yeldham J said in the same case at 20:

"His Honour ... in obeying the provisions of [s 36BD] did make it apparent to the jury that absence of complaint might be, but is not necessarily, a ground for rejecting the evidence of the complainant."

110 In my opinion, the law is as it was stated by Gaudron J in M v The Queen [1994] HCA 63; (1994) 181 CLR 487at 514, where her Honour said:

"The presumption discussed in Hawkins' Pleas of the Crown [the presumption against a woman arising from failure to make prompt complaint] is not a presumption of law but an assumption of fact. And it is an assumption which has embedded in it a questionable suggestion, namely, that people are more likely to lie about sexual offences than about other matters. And of course - though this need hardly be said - there is no basis for thinking that females are less reliable in these matters than males. As well, the presumption is no longer generally seen as conclusive ... Even so, the assumption is still accorded considerable respect and it was held by the Court of Criminal Appeal of the Supreme Court of New South Wales in Reg v Davies that, notwithstanding s 405B(2) [of the Crimes Act] a trial judge should, at least as a general rule, direct the jury that absence of complaint or delay in complaining may be taken into account in evaluating the evidence of the complainant. However, that is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind. Reg v Preval [1984] 3 NSWLR 647; Reg v Murray (1987) 11 NSWLR 12."

111 In the cross-examination of the complainants in this case, nothing really was made or sought to be made of their failure to make timely complaint. B's evidence-in-chief that she did not tell anyone because she was "scared" and "scared of getting in trouble" was not the subject of cross-examination. S was asked no questions at all on the subject, either in examination-in-chief or cross-examination.

112 In defence counsel's final address, however, he invited the jury to use the evidence of absence of complaint both as reflecting on the complainants' credibility (although he had not cross-examined along those lines), and as confirming the positive evidence of Michael Cook that on 3 January 1998 he had overheard Donald telling the girls, in effect, to concoct a story implicating the applicant and to "make them the same". Defence counsel addressed the jury at length on the evidence relating to the circumstances under which the disclosures were made to Donald and Imelda and invited them to disbelieve that evidence and to conclude that it was invented at Donald's instigation. In support of that submission, he invited the jury to reason that if B's story was true, she would not have made her disclosure to Donald and Imelda, but to her mother. He put it as bluntly as this:

"You heard [B] say that she didn't tell anyone because she was scared of what Uncle Bert might do, and what I suggest to you in relation to that, ladies and gentlemen, is that it can't be accepted as true, because [B's] family moved to Wickham 2 years before she made the allegation and she was far and away from Bert. So there is no really good explanation for why [B] would all of a sudden make this disclosure 2 years down the track and, surprise, surprise, who to? Donald."

113 It was in this way made very clear to the jury how the defence wanted them to use the evidence that it was not until 3 January 1998 that either girl had made any disclosure of the alleged offending. In that context, a charge to the jury in terms of s 36BD that absence of complaint, or delay in complaining, does not "necessarily" indicate that the allegation that the offence was committed was false is all that fairness demanded. In the context of the trial as a whole, it must have been crystal clear to the jury that they were permitted to use the evidence of delay in complaining as relevant to the complainants' credibility. I am not persuaded that there was any perceptible risk of miscarriage of justice.

"3. The learned Trial Judge erred at law in not warning the jury that it would be unsafe, alternatively dangerous, to convict the Applicant:

3.2 in respect of counts 2 to 5 (inclusive) on the evidence of [B] alone, where on her evidence [S] was present when those offences were committed, but that [S] who was called by the Respondent to give evidence, did not give any evidence of the commission of the offences, the subject of counts 2 to 5 (inclusive); and

Cook v The Queen [2000] WASCA 78

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Judgment (253 paragraphs)

Cook v The Queen [2000] WASCA 78 (28 March 2000)

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Cases Cited (33)