(c) Failing adequately to warn the jury about the limitations of "context" evidence
47The Crown relied on evidence of "other acts" to provide a "realistic context" for the complainant's evidence in respect of particular instances of sexual misconduct. The evidence was not relied on, nor was it admitted, for a tendency purpose.
48The complainant gave evidence that sexual acts occurred, "[p]robably nearly every time" that she visited the appellant's daughter. She alleged that the appellant would "always want to do something" when she visited "every Friday". Evidence was led from other witnesses to support this aspect of the complainant's evidence. The complainant's mother gave evidence that the complainant "didn't know the exact dates, but she said that it happened on many occasions when she was over there". Detective Kelly said that the complainant told him that the sexual abuse "became a regular occurrence over the next five years", from the time of the first incident.
49The Crown addressed on the evidence as follows:
"Don't forget, after a while, the sexual abuse at the hands of the accused was hardly a shock to [the complainant]. She told you once it had begun, it happened many times. On many occasions when she went there, acts of a similar nature to the ones in the indictment took place. It became in a sense routine; a routine of ongoing sexual abuse in which with [sic] each episode little different from the past. Sure there was some variation as to those details, but the fact is being sexually abused by the accused was, at the time of most of those offences on the indictment, nothing new to [the complainant]. It was to her, you might well think, just a part of the price she believed she had to pay to keep her relationship with [the appellant's daughter] and to protect the safety of her family."
50The evidence was significant. The prosecution relied on the evidence to meet a challenge to the complainant's credibility on the basis of her acquiescence to the alleged acts of sexual abuse and her delay in complaining about it. Acquiescence and delay in complaint were live issues, particularly in view of evidence that the complainant regularly chose to stay with the appellant during the course of the alleged offending.
51General principles concerning "context" evidence were summarised and explained in DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206. McClellan CJ at CL said this at [13]-[14]:
"[13] It is common to find in cases involving allegations of sexual misconduct with a minor that the complainant alleges similar misconduct on other occasions. They have often been referred to as 'uncharged acts', although this label was criticised in HML [(2008) 245 ALR 204] by Hayne J at [129]; Crennan J at [399].
[14] I understand that it is common, at least in New South Wales, for the Crown to serve a tendency notice in relation to this class of evidence but when, as will almost always be the case, the defendant objects to its admission, the Crown alters course and confines the purpose of the tender to evidence which explains the context of the offences including the nature of the relationship between the accused and the complainant. Whatever be the purpose for which it is tendered the evidence will almost always occasion significant prejudice to an accused. Care must be exercised both as to its admission and, if admitted, the directions given to the jury as to its use. If admitted as 'context' evidence s 136, which requires directions to be given with respect to the limited use of the evidence, is engaged." (Emphasis added.)
52McClellan CJ at CL incorporated into the judgment (at [17]) a passage from his earlier judgment in Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 in which his Honour said:
"If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence." (Emphasis added.)
53Doubt was expressed at [18] as to the proposition that in order to explain a lack of complaint, evidence of other sexual activity will necessarily be relevant, or that its probative value with respect to the issue of lack of complaint will necessarily outweigh the obvious prejudicial value. It was recognised at [31] that instructing a jury against tendency use of the evidence was "contrary to ordinary human experience". For this reason it is incumbent upon a trial judge to ensure that the jury "must be left in no doubt that they cannot follow that line of reasoning."
54In the present case his Honour directed the jury on "other acts". Three aspects of that direction are the subject of complaint.
55First, no warning was given to the jury about the limited permissible use of the evidence at the time that the evidence was admitted. Contrary to the passage from Qualtieri, the warning was not given until the trial judge summed up the case.
56Secondly, the jury was not directed that it had to be satisfied that the "other acts" occurred before it could use the evidence against the appellant. In R v Vonarx [1999] 3 VR 618, a sexual offence case involving the admission of evidence of other sexual acts, the Victorian Court of Appeal said at [22]:
"...we believe that in a case such as the present, where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred".
57This requirement was applied in Healey v R [2006] NSWCCA 235 at [94]-[100] and Rodden v R [2008] NSWCCA 53; (2008) 182 A Crim R 227 at [112], [130]. The requirement was important in the appellant's trial, because the evidence about other acts was of questionable veracity: it was vague, given by a witness who was, on one view, prone to exaggeration, and whose evidence was, in important respects, implausible. The warning was also required in light of the Crown's expansive use of the evidence. No attention was given to particular matters that might have indicated that reduced weight should be given to the evidence.
58Thirdly, his Honour abridged part of the direction, which seeks to warn the jury against impermissible use of the evidence. The appellant submitted that this was critical and had the effect of removing the explanatory parts of the warning, which enable a jury properly to understand and give effect to the warning. The direction given by the trial judge was in the following terms:
"However, I must give you some important warnings with regard to this evidence of other acts. You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. You must not substitute the evidence of other acts for the evidence of specific offences contained in the indictment. You must not reason that because the accused may have done something wrong to the complainant on other occasions, he must have done it on the occasions referred to in the indictment."
59The suggested direction set out in the Criminal Trials Bench Book at 4-215 is in the following terms, with the portions omitted by the trial judge indicated in italics:
"However, I must give you some important warnings with regard to the use of this evidence of other acts.
Firstly, you must not use this evidence of other acts as establishing a tendency on the part of [the accused] to commit offences of the type charged. You cannot act on the basis that [the accused] is likely to have committed the offence(s) charged because [the complainant] made other allegations against [him/her]. This is not the reason that the Crown placed the evidence before you. The evidence has a very limited purpose as I have explained it to you, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.
Secondly, you must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct by [the accused] but has charged particular allegations arising in what [the complainant] says, was a course of sexual misconduct. You are concerned with the particular and precise occasion alleged in [the/each] charge.
You must not reason that, just because [the accused] may have done something wrong to [the complainant] on some or other occasion, [he/she] must have done so on the occasion(s) alleged in the indictment. You cannot punish [the accused] for other acts attributed to [him/her] by finding [the accused] guilty of the charge(s) in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.
[Note: attention should be directed to any particular matters that might affect the weight to be given to the evidence.]"
60The appellant acknowledged that suggested directions in the Bench Book cannot be relied upon as a complete and authoritative statement of the law or that departure from its precise terms will necessarily indicate legal error: Ith v R [2012] NSWCCA 70 at [48]. However, comparison with the model direction serves to demonstrate the extent to which the most important parts of the direction were abridged, to the detriment of the appellant's case. In the particular circumstances of the trial, it was necessary and appropriate for the trial judge to give a careful direction, which, applying the language in DJV v R, was apt to leave the jury in no doubt that it could not follow an impermissible line of reasoning to the guilt of the appellant. The appellant submitted that his Honour failed to do so.
61The jury was specifically directed that the evidence of uncharged acts was relevant to the credibility of the complainant. The jury was told that the evidence was admitted so that the complainant's evidence was not viewed as being "less credible" by virtue of any artificiality that might arise from the complainant giving evidence about isolated acts.