Ground 1(b) Failure properly to direct the jury regarding the recorded conversation
68The second limb of the sole ground of appeal relates to the adequacy of the direction given to the jury as to the recorded conversation.
69The trial judge, in summing up to the jury, noted that the Crown case depended largely on the evidence of the complainant and directed the jury that it must exercise caution before it could convict the accused "because the Crown case largely depends upon you accepting the reliability of the evidence of a single witness". The trial judge emphasised this again in what was accepted by the appellant to be a standard Murray direction (R v Murray (1987) 11 NSWLR 12).
70His Honour addressed the jury on the relevance of evidence of other uncharged acts (evidence of the complainant that the accused would regularly make her show him her body, touch her breasts and make her pose for pictures for him, other than the matters charged in the indictment; and evidence from the sister and friend that they observed conduct other than that with which the accused was charged), namely, as matters placing in a wider context the particular acts with which the appellant was charged.
71His Honour then went on to give what the appellant accepts was an appropriate general anti-tendency direction. The evidence to which his Honour referred in the course of that general anti-tendency direction included the evidence that the appellant would repeatedly make the complainant pose for photographs for him.
72The trial judge then went on to address the tendency evidence. In his summing up, the trial judge clearly distinguished the tendency evidence from the context evidence the subject of the previous general anti-tendency direction.
73The tendency evidence to which his Honour referred was the evidence of child pornography found on the computer seized in Western Australia, the images found on the computer seized from the appellant's home in New South Wales and the evidence in the complainant's interview that he had previously touched her on the vagina; made her shave her vagina; and repeatedly took photographs of her when naked. There was no reference by his Honour in this context to the recorded conversation (nor had it been the subject of a tendency notice by the Crown). Counsel for the appellant points out, however, that the content of the recorded conversation went to the repeated taking of photographs of the complainant.
74The trial judge gave the jury a direction that this evidence (i.e., the tendency evidence) could only be used if the jury was first satisfied of the evidence beyond reasonable doubt and then only for the limited purpose of showing that the accused had the tendency claimed by the Crown: namely, the tendency to act in a particular way, which the trial judge described as being "indecently [to] assault his daughter, store child pornography on his computer or flash drive; and [incite] her to commit acts of indecency".
75Insofar as Counsel for the appellant, in submissions on the appeal, queried what were the counts to which evidence of the complainant's police interview could be taken into account as tendency, the direction of the trial judge had thus indicated that the interview could be relied upon as tendency in relation to each of the counts involving conduct against the complainant.
76The first reference to the recorded conversation was in the trial judge's summing up in relation to counts 6-15 (which related to the pornographic images of the complainant). The trial judge said:
The Crown puts particular emphasis in its submission to you on the recorded conversations [sic] between the complainant and the accused which is exhibit G.
The Crown says in effect that you can draw the inference that it was the accused and not the complainant who was making the request for photographs and for the complainant to show the accused her breasts.
The Crown says to you that you would not accept the accused's evidence that he was the victim of a conspiracy set up by his wife and daughter and his brother or the inference that it was his son ...or friend ... or any of the other persons that came to the house as being responsible for taking the clearly pornographic photographs of the complainant.
77The appellant contends that the general anti-tendency direction given by the trial judge was not sufficient where the evidence to which his Honour had there referred was capable of being construed as a general admission of all counts (submissions T 9.26), including the counts that did not involve the taking of photographs. More particularly, it was submitted that where there was a risk that the recorded conversation could be relied upon as tendency evidence the jury should have been given a specific anti-tendency direction in relation to this evidence.
78The Crown contends that the evidence of the recorded conversation was not sought to be, and was not, used as evidence of tendency and that the jury was not invited to engage in tendency reasoning in relation to that evidence.
79In ARS, the scope of the direction required to be given to the jury in relation to evidence similar to that in the present case was considered. There, it was noted that the Crown had adduced the evidence of the taped conversation not on the basis of tendency evidence but on the basis of a general admission. The trial judge directed the jury that if it found that the recording amounted to a general admission by the accused of sexual conduct towards the complainant then whilst that might not refer to any particular episode that evidence of admission could properly support the occurrence of the conduct charged and described in the indictment. There was no error found in the approach adopted by the trial judge in that regard.
80As to the risk that the evidence could be used as tendency evidence, the Court found that the trial judge's anti-tendency direction adequately indicated to the jury the issue to which the evidence could be put and the matters of which they had to be satisfied before they made use of it.
81The appellant relies, however, upon what was said in Christian v R [2012] NSWCCA 34; 223 A Crim R 370, where more than a general anti-tendency direction was required. In Christian, McClellan CJ at CL, with whom Latham and Harrison JJ agreed, considered the directions that should have been given as to the use that could be made of recorded conversations (referred to as the pretext conversations) which the prosecution submitted were capable of being admissions of guilt by assent or concurrence in what the complainant had put to the accused in the course of that conversation. There, the accused had admitted to a sexual relationship with the complainant but denied that this had occurred when the complainant was a child. The accused had denied in a police interview ever having had oral or anal sex with the complainant.
82McClellan CJ at CL held that the trial judge was required to approach the issue as to the use of the evidence in the manner endorsed in R v MMJ [2006] VSCA 226, 166 A Crim R 501. This required the trial judge to give directions which identified the particular aspects of the pretext conversations that were relied upon by the Crown as constituting "admission of guilt" of any of the counts; which directed the jury to consider those particular parts of the conversation in the context of the whole conversation; and which reminded the jury of available alternative explanations for the accused's answers and to consider whether or not those responses were in the context of a mature relationship rather than one in breach of the law and, accordingly, whether they supported the complainant's evidence with respect to any particular alleged offence (at [83]).
83At [84], his Honour went on to refer to the separate risk that the jury would engage in tendency reasoning, noting that it was not in dispute that there had been sexual activity, although the precise nature of that activity and the occasions on which it occurred were disputed, and that what the jury had to decide was whether the activity alleged had taken place before the complainant turned 10, or 16, years. His Honour noted that the nature of the assertions and the significance of the response and its relationship to any of the particular charges was not considered.
84As to whether the Crown was seeking to rely on the recorded conversation as tendency evidence, the appellant points to the submission made by the prosecutor at the time of the voir dire to the effect that the recorded conversation demonstrated that the appellant was doing exactly what the complainant said that he was doing. That indicates that reliance was sought to be placed on the conversation as corroboration of the complainant's evidence.
85The references made by the prosecutor to the recorded conversation in closing address were consistent with this.
86The Crown noted that what was said in the recorded conversation ("show me these regularly over the next week or so without me asking you okay") was in keeping with the evidence of the complainant's sister as to what the complainant told her the appellant had said (that the complainant should have known that he wanted to look at her breasts and that things were going to change).
87The Crown referred to the statement in the recorded conversation to the effect that "you have to be coming to me okay if you want extra things and you want money okay; I'm not going to be constantly harassing you to come and show me, all right" and said:
What's the explanation for that - there is only one, the complainant says, "I recorded that to show as an example of what it was that he would repeatedly require of me". What does he say, "I don't remember it".
Ladies and gentlemen, I suggest that that alone is extremely damning but the accused has given a version.
88Pausing there, on my reading of the address what the prosecutor suggested was extremely damning was the statement by the appellant that he was not going to be constantly harassing the complainant for her to come to him to show him (her breasts) and that if she wanted extra things or money she had to come to him - statements inconsistent with the defence case that his daughter was the one requesting the photographs be taken and demanding or extorting money from him (not the appellant's professed inability to remember the conversation).
89After an adjournment, the prosecutor continued as follows:
Ladies and gentlemen, we got to the stage where I had just suggested to you that some of the reasons why you'd believe that the complainant was telling you the truth because the accused did take photos of her naked on his own admission; that he did used to look at her very often naked; that [the sister] in fact observed count 4 take place as well as other things; that [the friend] observed him possibly hundreds of times touching her breasts but perhaps the most damning thing is that phone message - that phone recording of the complainant, "photos need to get done. I want you to show me these regularly over the next week without me asking you and you have to be coming to me, okay, if you want extra things and you want money, okay. I am not going to be continually harassing you".
There's another part of that too that I neglected to points [sic] out to you that he is also reported as saying, "All right and things are going to change, okay". Now, you'll remember repeated references by the complainant that the accused considered her to have a bad attitude and things were going to change there ladies and gentlemen is a recording of him doing just that.
90Finally, when referring to Count 5, the prosecutor referred to the complainant's evidence that when the appellant said "do you want to show me your boobs?" and she asked him why the appellant had said "[b]ecause we've got to get rid of your attitude", the prosecutor said:
... exactly in keeping I suggest with the recording that she made - that's a different incident but it is exactly in accordance with the recording that she made on her phone.
Those are the reasons I suggest you would believe the complainant. All of the corroborated stuff ...
91The appellant submits that in the present case the jury was actively encouraged by the Crown to engage in tendency reasoning and there was an absence of directions as to how this evidence could be used by the jury and for which particular offence or offences. The Crown submits that the recorded conversation was relied upon as a general admission and as corroboration, not as tendency evidence, and that there was not a real risk that the jury would engage in tendency reasoning in relation to this evidence.
92It is submitted by the Crown that the context direction given earlier on the same topic (the appellant's request to see the complainant's breasts) sufficiently alerted the jury to the danger of impermissible tendency reasoning in relation to evidence on that topic such that no tendency warning was required in relation to it (referring to Toalepai v R [2009] NSWCCA 270 at [47]).
93It is clear from the transcript that the use sought to be made by the Crown of the recorded conversation was primarily to corroborate the evidence given by the complainant as to the circumstances in which the appellant had taken photos of her breasts and had required her to show him her breasts. This was in the context that the appellant did not deny having taken photos of his daughter's breasts (though he did deny taking the photographs of more erotic poses by his daughter) and did not deny having seen her naked. The recorded conversation was thus not relevant to the fact that he had done those things on repeated occasions; its significance was that it was inconsistent with the appellant's assertion that he was doing so at the complainant's request and that she was extorting money from him as a result.
94There was not a real possibility that the jury might use the recorded conversation as manifesting a tendency of the appellant to touch his daughter's breasts (the subject of counts 2 and 5); nor could it have realistically been used as conduct that was relevant to the possession of child pornography charge relating to images of other children (count 16). The conduct of taking photographs and viewing his daughter's breasts was, relevantly, admitted. The recorded conversation went relevantly to the question of at whose instigation the admitted conduct was engaged in. Insofar as the recorded conversation related to showing the appellant the complainant's breasts, it did not go to any tendency of the appellant to take other pornographic photographs of the complainant and this was not suggested by the Crown.
95I am not satisfied that there was a real risk in the present case that the jury would misuse the recorded conversation. Its significance was in contradicting the appellant's version as to why the photographs were taken. The general anti-tendency direction was in my opinion adequate in the present case.
96It is also submitted by the appellant that the jury should have been specifically directed that if there was a reasonable possibility that the recording did not involve the appellant they should not have regard to its contents. As to this, no such direction was sought at trial and the Crown submits that rule 4 of the Criminal Appeal Rules applies. I consider that below.