Ground 3
112During the trial the Crown was permitted to lead "context" evidence of continuous sexual contact at five locations in circumstances where the complainant was always a willing, and often initiating party.
113The Crown was also permitted to introduce into evidence a sound recording taken under police supervision from a listening device of a 40 minute "pretext" conversation between the appellant and the complainant, the complainant then being over 30 years of age. The "pretext" as provided by the complainant to the appellant was that she wanted to talk to him about past sexual contacts with a view to establishing whether it would be safe for her to visit the appellant in the company of her four young children.
114The trial judge described the contents of the pretext conversation as follows:
"The conversation shows that the complainant attended uninvited at the address of her stepfather and mother and that she then engaged in a conversation with the accused. The initial part of that conversation deals with completely unrelated matters or family matters and/or general conversation. But at some point during the interview the complainant commenced to make a number of allegations and to speak to the accused about those allegations. The accused from time to time in fact told her that he would not continue if she did not stop and listen and allow him to have his say and at the end he in fact terminated the conversation. There are no threats contained in the conversation from either side. The conversation appeared to be reasonably cordial. It certainly was not abusive and there is nothing to indicate to the contrary and everything to indicate that in fact the conversation was a conversation that this accused engaged in voluntarily." (T 3-4, 19 September 2012)
115This ground of appeal relates to his Honour allegedly erring in failing to:
(1)Warn the jury that the conversation could not be used as tendency evidence;
(2)Link all other sexual conduct references covered in the pretext conversation to context evidence, excluding the "frankfurt" episode, and that the jury had no reason to regard his directions in respect of context evidence as applying to historical sexual matters referenced in the conversation; and
(3)The pretext conversation was open to the jury to be used in an impermissible way, namely, as tendency evidence thereby exposing the accused to the impermissible use of evidence and thus tainting his trial.
116Parts of this conversation were admitted as Exhibit C on 19 September 2012 after the trial judge found the evidence had significant probative value that substantially outweighed the danger of unfair prejudice: p 4 of his Honour's judgment, 19 September 2012. The trial judge observed that:
"Clearly it would be for the jury to determine whether they accept that the document contains admissions or whether anything said by the defence in terms of any explanation for the things that are recorded as being said by the accused will ultimately be a matter for the jury. It will be for the jury to determine whether there is a direct admission, some of the answers are capable of that. It will be for the jury to determine whether there are implied admissions and the jury will be instructed in relation to the need for caution in drawing inferences and the fact that an inference can only be drawn it if is the only reasonable or rational inference." (p 3)
117His Honour then stated that the jury would be given directions in relation to use of the evidence: p 4 of his Honour's judgment, 19 September 2012.
118Part of the recording was played to the jury during the trial.
119As the complainant's cross-examination had concluded prior to the admission of Exhibit C, the Crown was granted leave on 19 September 2012 to re-open the complainant's examination in chief.
120On the morning of 20 September 2012, before the Court resumed hearing the complainant's evidence, the trial judge of his own motion gave further directions to the jury regarding the use of the pretext conversation in the following terms:
"HIS HONOUR: Good morning, ladies and gentlemen. Just before we resume with the evidence of [the complainant], I just wanted to say a couple of things in relation to the conversation that you heard yesterday. Obviously it's a matter for you to make of that conversation what you will in terms of whether you regard it as in any way supporting the Crown case, but if you feel that there is perhaps anything expressed within that which might, for instance, indicate potentially say a certain chauvinistic attitude, then the reality is you shouldn't let any conclusion you reach in regard to that influence the way you decide this case. In other words, it's neither here nor there whether a person who is the accused is chauvinistic or not chauvinistic.
The reality is the question here is whether the Crown has proved the essential elements of each of the charges, not whether the Crown has proved that a person has a particular mindset, for instance. So it is important that you understand that you not act in any prejudicial way. The reality is if someone for instance is a chauvinist they can be guilty or not guilty of an allegation. The fact that they are a chauvinist does not of itself prove that they are guilty of what is alleged against them. Now, I'm not necessarily saying that you would reach such a conclusion in terms of chauvinism. I am just saying that because there is a potential there for that, so far as I could see, I think it's important that you understand from the beginning the way in which you should use that conversation, and the way in which you should not use any assessment as to the accused in that area." (T 2:3-25, 20 September 2012)
121In cross-examination the appellant said that he believed the focus of that conversation was re-establishing a relationship between the complainant and her mother. He maintained that all he could recall were the three occasions of inappropriate behaviour between himself and the complainant: T 122, 21 September 2012. The appellant's notes in respect of this conversation were admitted as Exhibit D during the trial.
122Following the close of the defence case, defence counsel raised an issue in relation to the potential use of the pretext conversation. Mr Loomes noted that the Crown did not open on the listening device, and proceeded to cite Zoneff v R (2000) 200 CLR 234 and Edwards v R (1993) 178 CLR 193 as authorities for the proposition that special directions must be given if there is a suggestion that lies establish a consciousness of guilt. The trial judge indicated that he "was waiting to see what the Crown does with lies": T 210:8-30, 24 September 2012. The Crown Prosecutor then stated that "...the earlier rationale would be that the Crown is relying on just that it goes to credibility". Further, that the Crown would be:
"...asking the jury to consider the context of the conversations, what was actually said, and ultimately whether they believe that he understood what was being referred to during the course of that conversation, and then ultimately it will be a matter for them whether his reaction during the course of that conversation is consistent with a man who has been told or had certain allegations put to him." (T 211:14-19, 24 September 2012)
123In closing addresses, the Crown's submission in respect of the pretext conversation was put as follows:
"You might think that it was being made very plain to [the appellant] that this was what [the complainant] was talking about on that occasion on 23 September 2008.
And the reason that we went through that, painstakingly you might think, is because you will have to determine, that whether having gone through that process and watched the process that [the appellant] went through in cross-examination, did he understand what was being suggested to him plainly by [the complainant] during the course of that listening device conversation. Not only did he understand it but were these matters that would be in his personal knowledge, was she talking about something that only he could've known about. Well given that he was the person she was making the allegations against, well it did concern him.
If you're of the view that he did understand, that he did know what she was talking about, because of the way that she explained why she was there, at his house, why she was concerned about her little girls having dealings with him, on your understanding and your knowledge of human nature, do you think he reacted as someone who was innocent would. It's a matter for you. Look at the responses he makes.
What you're effectively being asked to do is to make an assessment of, it sounds very high noble, of human behaviour. Here you have two people, a man as he would say, being falsely accused of something, by his step-daughter. You as the jury will assess that conversation in that context and it's open to you, given your commonsense, your personal knowledge, having seen and heard the interaction in court, you may think that there has been a failure on his part to proclaim his innocence. You may think he didn't proclaim innocence, that that doesn't make him guilty, I'm not saying that, but it is something you may think, is inconsistent with someone who is innocent. You might think, that sounds like a typical lawyer talking. I will try and make it more simple.
Your worldly experience, given the scenario that you now understand to be the situation, having heard what was said by [the complainant], having heard the responses from the accused, do you believe that he understood what was being put to him. Did he appear to understand what the allegations were. If you think that he did understand those allegations, he did understand the nature of the allegations, was his behaviour or his responses consistent with someone who was protesting his innocence or not.
It's a matter for you as a jury whether you believe those inferences can be drawn. I am not able to suggest one way or the other, it's a matter for you. Look at the conversation, you look at the reaction." (T 9:8-50, 24 September 2012)
124The appellant submitted that only one indicted offence was capable of being identified in the course of the pretext conversation, namely, the "frankfurt" incident, in the context of the complainant's "first time" with the appellant. However, it is argued that "there is insufficient evidence in it to identify with certainty that it related to an episode of intercourse", although both parties are agreed there was only ever one allegation against the appellant involving a frankfurt: Appellant's Written Submissions at p 21. The appellant also raised concerns that the recorded conversation did not constitute sworn evidence: p 23.
125Accordingly, the appellant submitted that the Crown's address in respect of the appellant's "innocence" was not a legitimate use that could be made of the pretext conversation. Further, it was submitted that it stood contrary to a direction given by the trial judge in relation to context evidence, namely, that context evidence was not to be substituted for evidence of the specific facts required to be found before guilt of an offence would follow: Appellant's Written Submissions at pp 18-19. This also had the effect of reversing the onus of proof: p 21. Accordingly:
"Regardless of how adverse the accused's reaction to the matters raised by the complainant could be described, it is impossible to see, how they could be described as - inconsistent with innocence of Counts, 3 or 4, or 5, or 6, or 8, or 9, or 10, or 11 - each of which had to be considered separately in respect of the essential elements of each. The accused's conduct during the course of the 'pretext' conversation cannot be analogous to a conscientiousness of guilt situation in respect of the various indicted charges as may be frequently the case when prosecution are relying in the deliberate telling of lies - usually in respect of a single episode of criminal conduct." (p 21)
126Although there were no admissions as to the charged offences, Mr Nicholson acknowledged during the hearing of the appeal that the conversation "contained admissions of the context material": T 15:1-3, 29 April 2014. Mr Nicholson also conceded that on the context evidence it was open for the jury to conclude that it was speaking of a sexual relationship: T 19:4-7.
127However, in the course of summing up the trial judge reminded the jury "there are no confessions in that conversation", but that it could go towards whether the appellant was a witness of truth: T 41.
128In the course of summing up the trial judge also gave directions to the jury in relation to the drawing of inferences generally (T 14-15) and lies and credibility (T 16-19). The trial judge noted: "So if you conclude that the accused did lie, has lied, then that is a matter that would go to his credibility or his believability, can you believe him, does he have any credit?": T 17. His Honour further stated:
"It is for you to make up your own mind about whether the accused has told lies and if he has whether he was doing so deliberately. Essentially that is a bit of double talk because the lie needs to be deliberate so it has to be something that is said that is not accurate and it is said in order to deceive, that is what makes it a lie, so it is a deliberate lie. It is for you to decide what significance any suggested lie or lies has in relation to the issues in the case but I should give you this warning, do not follow the process of reasoning that because a person is shown to have told a lie about something that that of itself is evidence that he is guilty. In other words it is not good enough for the Crown to prove that someone lied and therefore say well we proved he lies though so therefore that proves that he is guilty, it does not automatically flow." (Summing Up, at T 18)
129The appellant additionally submitted that no attempt was made by the trial judge to identify the pretext conversation as involving context material where it made reference to sexual matters, save and except when the complainant referred to the "frankfurt incident": T 19.
130The appellant noted that the pretext relied upon by the complainant for having the recorded conversation with the accused was her apparent belief that the appellant has a potential propensity to sexually misbehave with her children. During the conversation, the complainant said: "And one thing I want is to make sure that the thing that happened with me and you does not happen with my kids": Voir Dire Ex 6 at p 10. Mr Nicholson submitted that this raises an apprehension of propensity (T 15:50) which was subsequently endorsed by the Crown (T 16:12-14). However, at no point in the conversation did the complainant in fact suggest that the appellant ever did anything to her children or any other children.
131The pretext was raised in the Crown address in the following terms:
"If you're of the view that he did understand, that he did know what she was taking about, because of the way that she explained why she was there, at his house, why she was concerned about her little girls having dealings with him, on your understanding and your knowledge of human nature, do you think he reacted as someone who was innocent would. It's a matter for you. Look at the responses he makes" (T 9:21-26, 24 September 2012)
"...she's concerned about their safety. That's why she brings these allegations." (T 11:9-13, 24 September 2012)
132It was also addressed in his Honour's summing up:
"The reason [the complainant] may then have the conversation is quite a legitimate one, you might think that she might have been concerned about her children and their relationship leaving him [sic] with the father, she had the two young girls and commonsense would tell you that it might have been a motivation for her to want to do something about that in terms of ensuring their safety." (Summing Up, T 42)
133Additionally, in the course summing up, his Honour explained the relevance of context evidence (T 33) and gave a direction in respect of such evidence:
"It is important that I explain to you the relevance of the evidence of these other acts. It was admitted or the evidence of those acts were admitted for the purpose of placing the complainant's evidence of the particular acts relied on for these eleven counts, into what the Crown says is a realistic context, so that is the purpose, otherwise you might wonder about the likelihood of apparently isolated acts occurring suddenly and without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, you would be entitled to think it was very odd for them or for there to be such isolated acts between these persons. If you had not heard about the evidence of the other acts, you may have thought that the complainant's evidence was less credible in that every now and again once every six months alleging something was done, it does not have the context of well this is happening regularly and I am just pulling out eleven that I can specify.
So if the other acts of it the particular acts charged are placed into a wider context involving the other acts, that is a context of an ongoing history, then the curious feature of apparently isolated acts would disappear, it is for that reason the law permits a wider sexual history to be provided, it is to avoid artificiality or unreality in the presentation of the evidence. For one or two incidents to be artificially isolated and selected and for a witness to be confined to them, could make it very difficult for her to proceed intelligently with her evidence. To pick out, for example, two incidents separated by lengthy periods could leave you with a very strange and unrealistic account and make it very difficult for her to answer questions, therefore it is open to the Crown to lead evidence of other acts of a sexual nature between the accused and the complainant.
However I must give you some important warnings in relation to the evidence of other acts. (1) you must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the other type charged. (2) you must not substitute the evidence of the other acts for the evidence of the specific offences in the indictment." (Summing Up, at T 33-34) (emphasis added)
134The trial judge further noted that:
"You must not reason that because the accused may have done something wrong to the complainant on another or other occasions, that he must have done so on the occasions on the indictment. So the only relevance is a context relevance, it puts it in context." (Summing Up, at T 35)
135The appellant further submitted that the evidence as to the pretext of the conversation, namely, concerns for the safety of the complainant's children, is prohibited by s 97 of the Evidence Act 1995. The jury may very reasonably have come to a view that the pretext evidence was unrelated to the context evidence: Appellant's Written Submissions at p 23. Further, that:
"Neither the Crown, nor his Honour posed any question to the complainant as to whether she was sincere in the pretext she was relying upon - because such a question would have raised an inadmissible matter, namely tendency (and opinion), yet both relied upon her claimed pretext as being a finding of fact readily open to the jury to make." (p 24)
136Mr Nicholson submitted that the jury was not made aware by the trial judge or either counsel that the transcript of the conversation was not a sworn document, that it was a pretext, and that the pretext did not necessarily need to be a statement of fact: T 16:28-33, 29 April 2014.
137However, defence counsel did not draw to his Honour's attention the matters covered under this ground of appeal. Although he objected to the tendering of the pretext conversation, the nature of the pretext and its potential harm were not raised. Accordingly, the Crown submits that rule 4 applies and leave must be sought. This was not disputed by Mr Nicholson: T 13:50, 29 April 2014.
138On 20 September 2012 the trial judge gave a context direction:
"Now, there are a couple of things that you can't do with it. The first is that you can't say, "We're satisfied that he did those other acts, therefore we're going to find him guilty of all the counts on the indictment." You have to go to each count and consider the evidence that is available on each count and determine whether that evidence convinces you, for instance, that he's guilty or not.
The fact that you accept other occasions took place only means that it gives it a context. You can't jump from, "I accept that it happened on other occasions, therefore I'm going to convict him without any further consideration of the individual allegations in the indictment," and you think that's probably a matter of logic because you have to be satisfied beyond reasonable doubt as to what she alleges in relation to each of the counts contained in the indictment. The second thing is that you can't use a tendency type argument. You can't say, "Well, look, I accept these other acts, and that shows that he had a tendency to do these things, so therefore, because I find he had a tendency to do these things, I'm going to find him guilty of those other acts"." (T 61:42-T 62:8, 20 September 2012)
139Following this, the trial judge asked if counsel sought any further direction. Defence counsel indicated no redirection was sought: T 62:23-25, 20 September 2012. As noted earlier, defence counsel also did not seek any redirection after the summing up.
140The Crown submitted that a miscarriage of justice will not be found in circumstances where a warning or direction would have been merely desirable rather than necessary: Crown's Written Submissions at [51].
141The Crown also contended that the trial judge did not give a propensity warning because there was no real danger of the jury misusing that evidence as propensity evidence, given the two effective context directions given during the trial and summing up (see [133] and [138] above) which were in conventional and appropriate terms: Crown's Written Submissions at [52]. Further, "it would have been patently clear to [the jury] that none of the counts on the indictment were referred to specifically in the listening device conversation": T 26:26-28, 29 April 2014.
142In respect of the pretext conversation, the Crown argued that at no point in the recorded conversation did the complainant suggest the appellant had done anything untoward to her children. Further, the Crown did not seek to use the pretext as evidence that the appellant had a broader tendency to sexually abuse children:
"The Crown submission in closing was that, contrary to his evidence at trial, the applicant well understood what the complainant was talking about (ie his sexual misconduct toward her when she was a child) because the complainant contextualised the conversation by telling him that she didn't want the same thing to happen to her children. This was not an invitation to the jury to use the conversation as evidence that the applicant had a particular tendency, or to substitute that evidence for evidence in support of the indicted counts." (Crown's Written Submissions at [52])
143However, Mr Nicholson argued that "it doesn't matter much what the Crown, what purpose it led it for, it's what capacity the evidence had to do damage": T 19: 46-47, 29 April 2014.
144However, the Crown submitted "there was no real risk of their using the pretext conversation impermissibly and no further warning was required". Further, given the generality of the allegations of sexual misconduct in the recorded conversation, the general context direction was adequate to alert the jury to the danger of tendency reasoning. It would have been quite clear to the jury that the charged offences were required to be determined on the direct evidence, not on the context material: at [16]. At the hearing of this appeal, the Crown expressed this submission in the following terms:
"...the combination of the obviousness of the contextual quality of the conversation and the context direction that was given means that the jury were adequately directed as required by the circumstances of this particular case and that there was no appreciable or real risk that they would misuse that evidence." (T 27:5-10, 29 April 2014)
145Finally, in respect of the trial judge's alleged failure to link references in the pretext conversation to context evidence, the Crown submitted that other than the "frankfurt episode", other references in the pretext conversation to sexual matters were in general terms and were properly available to be used by the jury as evidence of general admission (Rolfe v R [2007] NSWCCA 155 at [67]) and as consistent with the complainant's evidence and so supportive of her credibility. The Crown also noted that unlike in Christian v R [2012] NSWCCA 34, the appellant gave evidence about the conversation, in which he offered an explanation for his responses to the complainant's questions.