KRM v The Queen

LEGISLATION CITED: Evidence Act 1995, ss.97, 100, 101, 137

B v. The Queen (1992) 175 CLR 599 Crampton v. The Queen (2000) 206 CLR 161 Doggett v. The Queen (2001) 75 ALJR 1290 Gipp v. The Queen (1998) 194 CLR 106 KRM v The Queen (2001) 206 CLR 221 Longman v. The Queen (1989) 168 CLR 79 M v. The Queen (1994) 181 CLR 487 CASES CITED: Mearns v R [2005] NSWCCA 396 Qualtieri v. The Queen [2006] NSWCCA 95 R v. AH (1997) 42 NSWLR 702 R v. Beserick (1993) 30 NSWLR 410 R v. BWT (2002) 54 NSWLR 241 R v. DBG [2002] NSWCCA 328 R v. Johnston (1998) 45 NSWLR 362 R v. WRC [2002] NSWCCA 210 Wilson v The Queen (1970) 123 CLR 334

PARTIES: Lance William LEONARD - appellant Regina - respondent

COUNSEL: Ms. J. Manuell for appellant Ms. V. Lydiard for respondent

SOLICITORS: Steve O'Connor for appellant S. Kavanagh, Solicitor for Public Prosecutions, for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 20 August 2004

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

IN THE COURT OF CRIMINAL APPEAL CCA 2006/26 DC 04/41/0011

HODGSON JA GROVE J ADAMS J

Thursday 31 August 2006 LEONARD, Lance William v. REGINA Judgment 1 HODGSON JA: On 2 June 2004, the appellant was indicted before his Honour Judge Garling at the Nowra District Court on the following charges: (1) That he between 31 May 1989 and 1 July 1990 at Nowra, in the State of New South Wales, did assault [the complainant] and at the time of the assault committed an act of indecency upon [the complainant], she, [the complainant] being under the age of 16 years and being under the authority of [the appellant]. (2) That he between 31 December 1991 and 1 January 1995 at Nowra, in the State of New South Wales, did assault [the complainant] and at the time of assault committed an act of indecency upon [the complainant], she, [the complainant] being under the age of 16 years and being under the authority of [the appellant]. (3) That he between 31 December 1991 and 1 January 1995 at Nowra, in the State of New South Wales, incited [the complainant], being a person under the age of 16 years, namely between 10 and 13 years, and who was under the authority of [the appellant], to commit an act of indecency with [the appellant]. (4) That he between 31 December 1991 and 1 January 1995 at Nowra, in the State of New South Wales, did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting, she [the complainant] being under the age of 16 years. (5) That he between 31 December 1991 and 1 January 1995 at Nowra, in the State of New South Wales, did assault [the complainant] and that at the time of that assault committed an act of indecency on [the complainant] she, [the complainant] being then under the age of 16 years and being under the authority of [the appellant]. (6) That he between 31 December 1991 and 1 January 1995 at Nowra, in the State of New South Wales, incited [the complainant], being a person under the age of 16 years and who was under the authority of [the appellant], to commit an act of indecency with [the appellant]. (7) That he between 31 December 1991 and 1 January 1995 at Nowra, in the State of New South Wales, did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting, she [the complainant] being under the age of 16 years. (8) On or about 13 July 1993 at Nowra, in the State of New South Wales, did assault [the complainant] and at the time of that assault committed an act of indecency on [the complainant], she, [the complainant] being then under the age of 16 years and being under the authority of [the appellant]. 2 The appellant pleaded not guilty to each count and was tried before his Honour and a jury of twelve. On 3 June 2004, verdicts by direction of not guilty were given in respect of counts (5) and (6). On 4 June 2004, the jury returned verdicts of guilty to counts (1), (2), (3), (4), (7) and (8). 3 On 20 August 2004, the appellant was sentenced as follows: on counts (1), (2) and (8), to a fixed term of imprisonment for two years to date from 4 June 2004 and to expire on 3 June 2006, all sentences to be served concurrently; on count (3) a fixed term of imprisonment for one year to date from 4 June 2004 and to expire on 3 June 2005; and on counts (4) and (7), imprisonment for 9 years to date from 4 June 2004 and to expire on 3 June 2013, with a non-parole period of 6 years to date from 4 June 2004 and to expire on 3 June 2010, all sentences to be served concurrently. 4 The appellant appeals against his conviction on those counts.

CROWN CASE 5 The complainant gave evidence that the appellant was her stepfather. The complainant was born on 12 February 1982. Her natural father and mother separated in 1986, and her mother married the appellant in 1989. The complainant had a brother L who was two years younger than her living in the same house. The complainant gave evidence that there were two children born of the marriage between her mother and the appellant. 6 In support of count (1), the complainant gave evidence that one night in the period between the latter part of the year she was in Year 3 (1989) and the beginning of the following year, she wet her bed at home in Nowra. She said she was about to get up and change the sheets. She heard there was someone in the bathroom and so she waited in bed. A couple of minutes later she saw the appellant come in to her room and she pretended to be asleep. She said the appellant put his hands under her blanket and into the front of her underwear and on to her vagina. She said she was scared. 7 The complainant said the appellant did this same sort of thing once or twice a week to her, and that it became quite regular. She gave evidence of one occasion "where I was in my bedroom and sitting on the side of my bed and my stepfather had come into the room and my mother was out shopping and he put his hands into my pants and my brother had walked into the room and he startled us both and he (my stepfather) just pretended to look for something under the bed or near the bed". The complainant said there were occasions when the appellant put his hands into her pants or asked her to touch his penis. 8 In relation to counts (2), (3) and (4) (all related to the one set of incidents), the complainant said that when she was 10 to 12 years of age, her mother was out of the house one evening. She said she was reading a book on her bed when the appellant, who was wearing a dressing gown with nothing under it, came into the room. He said that the appellant placed his hand on her vagina and she rubbed his penis. She said that on this occasion the appellant lay on top of her and tried to push his penis into her vagina. She told the appellant that it hurt and she tried to move away from him, and that he got up and left the room. 9 In relation to count (7), the complainant gave evidence that about a month after that occasion, her mother was out doing shopping and she was in doing her brother's room. She said the appellant came into the room and removed his pants and her clothes. She said that he placed his penis on to her vagina and began to push. She said that he tried to penetrate her and she felt painful. She said it was not easy to move away from him. 10 The complainant gave evidence that there was an incident before Christmas Day 1994 when the appellant came over to her bed and began to pull the blankets away from her. The complainant said her mother saw it and asked the appellant "What the hell are you doing?". The complainant said that at that time the appellant was wearing his dressing gown which was open and she saw his penis. After the incident, her mother asked her how often this sort of thing had happened to her. The complainant said that after this incident, the appellant went to the caravan in the yard of the house and stayed there about five months, then went to a relative's place, and returned to live with her mother after about ten months. 11 In relation to count (8), this relating to an earlier incident from that just referred to, the complainant gave evidence that on an occasion when her mother was at the TAFE, she was sitting on the lounge watching television, and the appellant put his hand into the front of her underpants and fondled her vagina. However, suddenly there was screaming in the background and it turned out to be her stepsister. The appellant asked her to call an ambulance, and the appellant went with her stepsister to the hospital. 12 The complainant gave evidence that in about 2001 she received a phone call from the appellant in which the appellant said "that I wanted it and that I encouraged it and that I liked it, referring to the incidents of my childhood", to which she responded "no, and why would a child want their father doing things like that to them" and hung up. The appellant then called the complainant on her mobile phone and said "do you remember a time by the window" to which the complainant replied "no I don't" and terminated the second phone call. In cross-examination, it was put to the complainant that this occurred "out of the blue" to which the complainant replied: We were down at my parents' place the weekend before and I had decided to take the matter to the police, so I felt that I owed it to my mother to let her know exactly what had happened so I told her the full story and then she had spoken to [the appellant] about it and so that's why the conversation came about the weekend following. 13 The complainant gave evidence that she spoke to the police in April 2002 about what the appellant had done to her. 14 The complainant's mother gave evidence that she married the appellant in 1989, and that she bought a place in Nowra. There were three bedrooms in the house. The complainant and her brother shared one bedroom, and the two children of her marriage to the appellant shared another bedroom, and the she and the appellant shared the main bedroom. She said that later they moved to Sussex Inlet. 15 She gave evidence that there was an incident between Christmas and New Year 1994 when "I walked in on him kneeling down in front of [the complainant's] bed with his pants pulled down to his knees and I could see exposed from his waist down to his knees, and he was trying to remove the blankets off [the complainant's] bed", but she then asked him "What the hell are you doing?", and he said "I don't know". 16 The complainant's mother said she had words with the appellant after this incident and she had asked the complainant whether she wanted any counselling or to report the matters to the police, which she declined. The appellant stayed out in the caravan that night. She said the appellant apologised to her saying "It was the drinking that did it and that it hadn't happened before and wouldn't happen again". Later on, the appellant moved back into the house with her and their marriage continued. 17 The complainant's mother gave evidence that she attended TAFE in Nowra at that time and it was mainly on Tuesday. 18 She also gave evidence, over objection, that in about 2001, the complainant had told her "what had happened", that she then told the appellant what the complainant had told her, and that the appellant became angry and denied it; and that from that time the marriage was effectively over. 19 The complainant's brother gave evidence that one night while living in Nowra he walked into the complainant's room when his mother was not there. He saw the appellant kneeling next to the complainant with her pants down. He said the complainant was about 8 years old at that time. 20 Detective Fleming gave evidence that the appellant was arrested on 10 September 2003. He also gave evidence of an ambulance report confirming there was a call out to the appellant's home on 13 July 1993 relating to a child who was in an hysterical state.

APPELLANT'S CASE 21 The appellant gave evidence and was cross-examined. He denied that he had ever sexually assaulted the complainant. He denied there was any occasion when his wife came into a room when he was kneeling beside the complainant's bed with his pants down, and he said there was an occasion when he moved into the caravan for a few days, but said this was because of his own dissatisfaction with his situation. He said he did not have any conversation with his wife in the nature of an apology for a sexual act towards the complainant, and did not have any conversation with the complainant in about 2001 of the nature alleged by the complainant.

GROUNDS OF APPEAL 22 The appellant appeals on the following grounds: 1. The trial miscarried because the trial judge failed to give a strong and emphatic direction in the terms required by Longman v. The Queen (1989) 168 CLR 79 and subsequent authorities. 2. The trial miscarried because the trial judge incorrectly admitted evidence. 3. The verdicts were unsafe and/or incapable of being supported by the evidence. 23 The second ground relates to two distinct pieces of evidence: first, the evidence of the complainant's mother to the effect that she observed the appellant kneeling beside the complainant's bed, and the evidence of the complainant and her mother concerning the occasion in 2001 when the complainant told her mother "what had happened". 24 I will deal in turn with the issues raised by ground 1, the two issues raised by ground 2, and the issues raised by ground 3.

LONGMAN DIRECTION 25 In his summing up, the trial judge said the following: There are some matters I need to bring to your attention. These are matters of law. These are directions on matters of law which I give in every similar case...

The first relates to delay in making the complaint. I think it is agreed the first complaint we can identify would be the one she made to her mother in mid-2001 when one or other of them said and she told them everything. You have heard that evidence that is the complaint to her mother. You may think that delay by the complainant and making a complaint to a person who she might reasonably have expected to complain to is inconsistent with the conduct of a truthful person who has been sexually assaulted and therefore you have got to look carefully at the evidence. But this is necessarily a matter which you should consider and I must warn you that delay in making complaint does not necessarily indicate that the evidence of the complaint is false. It may indicate fabrication on the part of the complainant but does not necessarily do so. There may be good reasons why a person who has been sexually assaulted hesitates in making a complaint. It is important however, that I give you certain warnings. 26 He then referred to some evidence in relation to complaint, and said: Let me return to those directions of law I was giving to you. You will see from the indictment you have that it is alleged these offences occurred between 1989 and 1990, 1991 and 1995, and in 1993, and that the complaint was in the middle of 2001 and complaint to the police in [April 2002].

It is important that you appreciate fully the effects of delay and the ability of the accused to defend himself by testing prosecution evidence or adducing his own evidence in order to establish a reasonable doubt about his guilt. In this regard you have got to take into account those matters put to you by counsel, including that it was impossible to test a lot of these allegations. Some of the things which you may think about is the problems which may exist by the delay in instituting the prosecution, the possibility of distortion and human recollection, the nature of the allegations, the age of [the complainant] at the time and indeed the age of her brother, and any other sort of unusual features. One of those raised is the disadvantage that may be caused by nor being able to have witnesses available. If, of course, a complaint was made immediately, it was brought to the attention of the accused immediately, it may place the accused in a different position in defending such a case. By reason of these difficulties, additional care or caution is required in the way you approach the prosecution evidence. But, having carefully considered the matters to which I have referred and the warnings which I give to you, it is then a matter for you to determine what weight you should give to [the complainant's] evidence in the case. Because of the passing of so many years it would be dangerous to convict on [the complainant's] evidence alone unless you are satisfied of its truth and accuracy, having scrutinised the evidence with much care, considering the circumstances relevant to its evaluation and pay careful heed to this warning.

In addition to that, there are a number of charges I should tell you that if you hold a reasonable doubt concerning the reliability or credibility of [the complainant's] evidence on one or more counts, whether by reference to her demeanour or any other reason, then you should take into account in assessing the reliability or credibility of her evidence in relation to the other counts. 27 In connection with the Longman submissions, Ms. Manuell for the appellant also referred to the complainant's vague memory, her brother's memory, and inconsistencies between their evidence; and the appellant made the submission that the trial judge did not give "strong and emphatic warning concerning the adverse effect of the passage of time on the memory of a young child". 28 The Crown in its address to the jury said this in relation to the evidence of the complainant's brother: His evidence you heard yesterday. It's pretty clear, he's got [the complainant] lying on the bed with her pyjama pants down, the accused kneeling next to the bed with his head coming up from [the complainant's] middle area. Nothing innocent about that, you might think. And importantly, it's more evidence which supports what [the complainant] says was happening to her, that she was being molested by her stepfather. And he has a pretty good memory of the incident, well he's only a little boy at the time, he's about 6, but I guess it would stick in your mind if you saw that. He was able to recall that she was lying on a sheet and the blankets were at the bottom and he denied that he wasn't telling the truth. The way it came out was that this had happened, not lies. There will no doubt a suggestion made well look, [the complainant's brother] talks about her lying on the bed, she talks about sitting on the bed, was it the same incident? Possibly it was. But what's important about her evidence, they're both clear it happened and again, if this had all been made up, if [the complainant's brother] and [the complainant] had made it all up, you may expect the accounts to be mirror images of each other, that's not the case. There's that healthy sign that the memories are different but what's important is that he's in there, he's kneeling down next to the bed and her clothing removed. 29 Defence Counsel in his address said: Then you turn to [the complainant's brother] and [the complainant's] version of when [the complainant's brother] walks in. She says she is sitting on the bed and the accused is supposed to have his hand down the front of her underpants. [The complainant's brother] has got nothing like that. He's got her laying on top of the bed clothes, not sitting, with her pants down around her ankles or between her ankles and her knees depending on which version it is, whether it's the one in the statements or the one he gave here. Not sitting, no pants to put the hands down. Again to accept that's the same incident that they're corroborating each other is to say black is white and white is black. 30 Defence Counsel did not refer to the issue of the age of the complainant's brother, but the trial judge gave usual directions with respect to the evidence of any witness, and in relation to delay he referred to: … the possibility of distortion and human recollection, the nature of the allegations, the age of [the complainant] at the time and indeed the age of her brother... By reason of these difficulties additional care or caution is required in the way you approach the prosecution evidence. But, having carefully considered the matters to which I have referred and the warnings which I give to you, it is then a matter for you to determine what weight you should give to [the complainant's] evidence in the case. Because of the passing of so many years it would be dangerous to convict on [the complainant's] evidence alone unless you are satisfied of its truth and accuracy, having scrutinised the evidence with much care, considering the circumstances relevant to its evaluation and pay careful heed to this warning.

Submissions 31 Ms. Manuell for the appellant submitted that the trial judge failed to give the direction required by Longman and other authorities by: (1) not telling the jury that the delay was not caused by the appellant; (2) not telling the jury that the appellant had suffered prejudice by reason of the delay; (3) not telling the jury that the delay meant the evidence could not be adequately tested; (4) inadequately stating the forensic disadvantages suffered by the appellant as a consequence of the delay; (5) not telling the jury in any systematic way, of the specific difficulties for the defence case that had clearly been caused by the delay; and (6) not making any references to the evidence in order to highlight specific forensic disadvantages caused by the delay. 32 Ms. Manuell referred to Longman; R v. Johnston (1998) 45 NSWLR 362 at 376; Crampton v. The Queen (2000) 206 CLR 161 at 181, 208; Doggett v. The Queen (2001) 75 ALJR 1290; R v. BWT (2002) 54 NSWLR 241; R v. WRC [2002] NSWCCA 210; and R v. DBG [2002] NSWCCA 328. 33 Ms. Manuell submitted that in this case, there was particular need for further directions because of the vagueness of the evidence of the complainant and her brother, and the inconsistencies between the evidence of the complainant and that of her brother and her mother. These matters should have been explicitly dealt with by the trial judge, and he should have pointed out that these matters indicated great disadvantages caused to the defence by delay because, on the one hand, the jury could think the vagueness and inconsistencies were explained and excused by delay, yet on the other hand, they made it impossible for the appellant effectively to test or answer the evidence. Further, in relation at least to count (1), there should have been reference to the possibility of fantasy by a half-asleep child: Longman at 101.

Decision 34 In my opinion, it was not an error of the trial judge not to tell the jury that the delay was not caused by the appellant: this was obvious. And the trial judge did refer to disadvantages to the appellant, including disadvantages concerning his ability to call witnesses and otherwise defend the case. 35 In my opinion also, there was no error in not adverting to the possibility of fantasy in relation to count (1): it may have been appropriate to do so, if count (1) had been the only count, but where there were other counts in respect of which there were no realistic possibility of this kind, and where no such direction was requested, I do not think it could be regarded as an error for the trial judge not to make this reference. 36 However, it would have been at least desirable for the trial judge to expand upon and explain the forensic disadvantages caused by delay, including the inability to effectively check for alibis and to effectively test the Crown evidence, and particularly disadvantages related to vagueness and inconsistencies in the evidence in this case. The question is whether these deficiencies amounted to errors by the trial judge, or suggested a miscarriage of justice. 37 No complaint was made on behalf of the appellant in relation to the directions, and in my opinion they cannot be regarded as so deficient as to indicate a miscarriage of justice, in circumstances where no complaint was made by Counsel fully familiar with what had happened at the trial. In any event, this is a case where r.4 would apply, and I would not have been minded to grant leave under r.4. 38 For those reasons, this ground of appeal fails.

EVIDENCE OF COMPLAINANT'S MOTHER CONCERNING THE KNEELING INCIDENT 39 This ground, as developed, was to the effect that this evidence was admitted and used as tendency evidence, in circumstances where the requirements of ss.97, 100, 101 and 137 of the Evidence Act 1995 were not satisfied. Those sections are as follows: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

100 Court may dispense with notice requirements (1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97. (2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98. (3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice. (4) In a civil proceeding, the party's application may be made without notice of it having been given to one or more of the other parties. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) may be given either at or before the hearing. (6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following: (a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party, (b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence, (c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 40 This evidence was referred to in the Crown's opening address as follows: You will also hear from [the complainant's mother]…

She will give evidence also of one night at the Sussex Inlet home of walking out into the lounge room, which is where you will hear…[the complainant] was sleeping in the house...

You will hear that on this particular night [the complainant's mother] walked out into the lounge room and she found her husband, the accused, kneeling on the floor next to [the complainant's] bed and he was naked from the waist down, his clothing was removed or down to his thighs and that he was lifting up [the complainant's] blankets when [the complainant's mother] confronted him. You will hear evidence that he...was made to go out and spend that night in a caravan which was on the property in the rear yard and he subsequently moved out of the house for many, many months. You will hear that the marriage continued on after that break but subsequently they did separate. 41 During the Crown Prosecutor's final address to the jury, he said this: What the evidence of [the complainant's mother] is is what the law or what lawyers would refer to as independent corroboration evidence, that is evidence which comes from another source other than [the complainant], which tends to show that [the complainant] is telling you the truth and that's the sort of thing you look for in a case. You see, it's not just [the complainant] saying these things, it's her mother who's come along and told you as well. I suggest you got the impression, from what [the complainant's mother] was telling you yesterday, she was telling you the truth, simply the truth. She sees him kneeling down over [the complainant] and lifting the blankets with his pants down and his lower part is naked and exposed. There is no innocent explanation for that behaviour, none whatsoever, and the accused denied it happened at all. But on the evidence of [the complainant's mother], you'd think well he was caught red handed and she says to him, "What the hell do you think you're doing?" and his answer is "I don't know". 42 In the course of submissions relating to another matter, the trial judge said this to the jury: There is evidence from both [the complainant] and her mother which if accepted by the jury would indicate [the appellant's] attitude towards [the complainant]. There is evidence that he was seen doing certain things which would back up what [the complainant] said happened … 43 In his summing up to the jury, the trial judge said this in relation to evidence concerning other acts of alleged misconduct by the appellant towards the complainant: The Crown led other evidence. That evidence does not relate to any charge in this case. It is important that I explain to you the relevance of this evidence that is evidence of what we call "other acts". In addition to the evidence led by the Crown directed to the particular counts in the indictment the Crown has led evidence of other acts of alleged misconduct by the accused towards [the complainant]. For the sake of convenience I will refer to it as evidence of other acts. I will come to that evidence in a moment, not in great detail but just to give you an example. It is important that I explain to you the relevance of this evidence of others acts. It was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to put the charges in the indictment into a true and realistic context. It is confined, in other words, to making the circumstances of the particular offences charged more intelligible. Otherwise a jury such as yourselves may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason.

If a complainant gave evidence of isolated acts of sexual misconduct the jury would be entitled to say to themselves as persons of commonsense, "Well, really it's very odd for there to be such isolated acts between people". Thus 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 certain important warnings with regard to this evidence of other acts which can be conveniently referred to as "context evidence".

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 and therefore it cannot be used as an element in the chain of proof of the offences charged. You must not substitute the evidence of the other acts for the evidence of the offences charged. You must not reason that because the accused may have done something wrong to [the complainant] on another occasion that he must have done so on the occasions charged. You must give careful consideration to the timeframe within which the other acts are alleged to have occurred. The more remote the other sexual activity is the less will be its weight. 44 Later in the summing up, the trial judge introduced his recounting of the evidence concerning the "kneeling incident" with the following words: There is another area I wish to go to now and that can be classed as evidence supporting the Crown case. Whether it is or it is not is a matter for you. That evidence comes from [the complainant's mother]. I have not gone into the background history of the relationship and all that, you will remember that, you have heard it time and time again and I do not think I need to take you through all that.

Submissions 45 In written submissions, Ms. Manuell submitted that there might have been an entirely innocent explanation for the behaviour which the complainant's mother said she observed, and in any event the evidence could not establish even on a prima facie basis that the appellant had committed a criminal offence: so that the only basis on which the evidence could have been admitted was to establish credibility. The written submissions went on to put that the evidence could not have been tendency evidence because it did not establish that the appellant had committed an offence or was engaged in improper sexual behaviour with the complainant. The submissions continued that the evidence had clear potential to prejudice the jury, in that they might have regarded it as backing up the complainant's evidence and bolstering her credibility. 46 In her oral submissions, Ms. Manuell put that the mother's evidence of the kneeling incident was not admitted as relationship evidence, and indeed could not have been so admitted. The only basis on which it might have been admitted was as tendency evidence, but it could not be admitted on that basis because the requirements of ss.97 and 101 were not satisfied. In support of these submissions, Ms. Manuell referred to R v. AH (1997) 42 NSWLR 702 and Qualtieri v. The Queen [2006] NSWCCA 95.

Decision 47 As noted by McClellan CJ at CL in Qualtieri at [72], the admission of evidence of a sexual relationship between a complainant and an accused beyond the particular acts charged has caused difficulties, related to the difficulty of categorising the purpose for which the evidence is tendered. These difficulties are illustrated by the diversity of the views on the matter expressed by different judges of the High Court in Gipp v. The Queen (1998) 194 CLR 106. 48 In AH and Qualtieri, it is suggested that such evidence may be admitted for either of two purposes, and that if it is admitted for one purpose it is to be characterised as relationship evidence, while if it is admitted for the other purpose, it is to be characterised as tendency evidence so that the requirements of ss.97 and 101 of the Evidence Act have to be satisfied. 49 However, it does seem to me that, in some cases, it may be appropriate to draw further distinctions. It seems to me that, where a man is charged with particular sexual assaults against a complainant, evidence that he committed similar assaults against the complainant on other occasions could be relevant in at least three different ways, only one of which would be as tendency evidence: (1) It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant's account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on these particular occasions. (2) It may be relevant in supporting an inference that the accused was sexually attracted to the complainant, so that he had a motive to act in a sexual manner towards the complainant. (3) It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing sexual assaults. 50 Categories (1) and (2) depend entirely on the other sexual assaults being committed against the same person. Category (3) does not depend entirely on that, although generally evidence used for this purpose can have strong probative value only if the other assaults are against the same person. 51 In my opinion, use of the evidence for the purpose (1) is plainly use as relationship evidence. Use of the evidence for purpose (3) is use as tendency evidence. 52 In my opinion use of the evidence for purpose (2) is not use as tendency evidence: it is rather evidence supporting an inference that the accused had motivation to act as charged. Evidence of a similar kind could be provided by a letter from the accused declaring sexual attraction to the complainant, in the absence of evidence that the accused had actually done anything to or with the complainant. Evidence used in this way might be called relationship evidence or it might be called motivation evidence. 53 In my opinion tendency evidence against an accused is evidence to the effect that the accused is a person who by reason of his or her character is more likely than others to act in a particular way or have a particular state of mind. Evidence that an accused actually has an ordinary human motive to do something, such as sexual feelings towards someone else, is not as such that kind of evidence. I do not think it could be said that, because a married man feels sexually attracted towards a woman other than his wife, he therefore has a tendency to commit adultery with her, even if he never does so. 54 It is sometimes said that if the evidence is used only for purpose (1), that evidence does not support the guilt of the accused. In my opinion, evidence used in that way does support the guilt of the accused, by making the complainant's account of the assaults charged more believable. However, if this is the only relevance, questions can arise as to whether the way in which this evidence is given, and particularly the way, if any, it is corroborated, has a prejudicial effect outweighing its probative value. 55 If the evidence is of a generalised nature by the complainant alone, it would not in my opinion have such a prejudicial effect. It can easily be made clear to the jury that the evidence is only to show that the complainant's account of the assaults charged is not implausible because they would not have happened in that way if they were isolated incidents, and that there is no greater reason to accept the complainant's evidence that there were other incidents than to accept her evidence that the charged assaults occurred: the two generally stand or fall together. 56 However, if there is clear independent corroboration of another incident, then the prejudicial effect could well outweigh the probative value, if the only permissible probative value were to remove the implausibility that the complainant's account would have if were taken as an account of isolated incidents. The jury could well accept that the corroborated incident occurred because of the corroboration, and they could consider that this in turn gave corroboration that the charged assaults occurred, otherwise than through the only permissible use of the evidence. That is, they could use the evidence in an impermissible and thus prejudicial way. If the only permissible use of the evidence was for purpose (1), then the prejudicial effect of the corroboration could outweigh its probative value for purpose (1). 57 If the evidence of the corroborated incident is admitted not only for purpose (1) but also for purpose (2), its probative value may be stronger and thus more likely to outweigh its prejudicial effect. However, the danger that the jury might use the evidence for the impermissible purpose (3) might still mean that the probative value does not outweigh the prejudicial effect. Accordingly, it may be that the evidence would not properly be admitted unless it satisfied the requirements for admission as tendency evidence. 58 Further considerations arise if the accused gives evidence and denies the incident in respect of which there is corroboration. In that event, the credibility of the accused is inevitably put in issue as against the credibility of both the complainant and the corroborating witness. At that stage, the jury can legitimately have regard to these credibility considerations in order to decide whether the charges against the accused are proved. 59 With that background, I turn to consider the two previous unanimous Court of Criminal Appeal decisions in AH and Qualtieri. 60 AH was a case in which the appeal was upheld on the ground that the trial judge allowed the jury to consider the rhetorical question "Why should the complainant lie?". There was another ground of appeal, namely: That his Honour erred in allowing evidence of an event some two years after the alleged acts upon the complainant, which were the subject of counts 1, 2 and 3, to show the appellant's "guilty passion" for the complainant. The appellant submits that addition of this evidence was potentially highly prejudicial and compromised fairness of the trial. 61 That ground was not ruled on, but it was discussed to assist the conduct of the new trial. Ireland J, with whom Hunt CJ at CL and Levine J agreed, said this: A consideration of this ground will be of assistance in a later trial. Prior to the Evidence Act 1995, and in R v Beserick (1993) 30 NSWLR 510 at 515, this Court held, on the basis of respectable authority, that evidence of conduct with a sexual connotation between the complainant and the accused other than that which is the subject of the offence or offences charged is relevant in two different ways: (a) the relationship revealed may place the evidence of the events which give rise to a particular charge into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated: B v The Queen (1992) 175 CLR 599 at 610 (see also at 602-603); and (b) the guilty passion of the accused revealed - or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant - is directly relevant to proving that the offence charged was committed: R v Ball [1911] AC 47 at 71; see also Pfennig v The Queen (1995) 182 CLR 461 at 526.

The evidence - once admissible for either or both of those purposes - will also necessarily make the complainant's evidence more credible in relation to the events upon which the charges were based.

Where the Crown introduces the evidence for the former purpose, it is not tendency evidence, and the requirements of s 97 and s 101 are irrelevant: R v Harvey (Court of Criminal Appeal, 11 December 1996, unreported) at 5-6. Once admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had the guilty passion, he did the act in question unless it does comply with those requirements ( Evidence Act , s 95), and the judge should direct the jury that they may not use it in that way unless it does comply. The direction which the judge gave as to the use of this evidence in the present case failed to make that clear. The evidence was nevertheless admissible for the former purpose because it threw light upon the relationship at the time of the events which led to the last of the offences charged .

Where the Crown does wish to use the evidence of guilty passion as tending to show that the accused did do the act in question (and thus that the complainant's evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with s 97 and s 101 before it may be used for that purpose.

Section 97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence: R v Lockyer (1996) 89 A Crim R 457 at 459; R v Lock (1997) 91 A Crim R 356. In both Harriman v The Queen (1989) 167 CLR 590 at 597-599 and S v The Queen (1989) 168 CLR 266 at 275, Dawson J has said that evidence of guilty passion, although evidence of propensity (or tendency as the Evidence Act calls it), has a sufficiently high degree of relevance as to justify its admission: see also B v The Queen (at 618), per Dawson J and Gaudron J. If the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that it is of significant probative value.

Section 101(2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person thinks that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of the particular case: Pfennig v The Queen (at 488). As such evidence is circumstantial in nature, the Crown must establish that there is no reasonable view of the evidence available which is consistent with the innocence of the accused: Pfennig (at 483-484, 485). That is what is required by s 101(2): R v Lock (at 363); R v Foley (Court of Criminal Appeal, 5 June 1996, unreported) at 8.

As it is unclear just how the Crown sought to use the evidence in this case, and as a new trial has been ordered on another ground, it is unnecessary for this Court to determine whether the evidence at the first trial would have fulfilled the requirements of those two sections. 62 This discussion was not part of the ratio decidendi of the decision, and it did not address to the question whether relevance as indicating "guilty passion" referred to use of the evidence for purpose (2) or (3) or both. 63 Qualtieri was a case in which the trial judge gave long and confusing directions, during which he referred without demur to a Crown submission that "within the accused there was sexual feeling or passion for the complainant, that he was prepared to satisfy". McClellan CJ at CL, with whom Howie J and Latham J agreed, held the trial judge did leave the evidence to the jury as tendency evidence. He referred with apparent approval to AH, and later said this: 80 To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be - · Identification of the evidence which the Crown seeks to tender and the purpose of its tender. · If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH at 709. · If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial. · 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.

81 The Supreme Court Bench Book contains a model direction with respect to relationship evidence which is to my mind the appropriate manner in which to instruct the jury. It states: "It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into a true and realistic context. It is confined, in other words, to making the circumstances of the particular offences charged more intelligible.

Otherwise, a jury such as yourselves may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, a jury would be entitled to say to themselves, as persons of common sense, well, really, it is very odd for there to be such isolated acts between these persons.

Thus, it is open to the Crown to lead evidence of other acts of sexual nature between the accused and [ the complainant ] … [ it is necessary, to explain this direction, by reference to the facts of the particular case].

However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as 'context evidence.'

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, and, therefore, it cannot be used as an element in the chain of proof of the offences charged.

You must not substitute the evidence of the other acts for the evidence of the specific offences charged.

You must not reason that, because the accused may have done something wrong to [ the complainant ] on another occasion, [ he/she ] must have done so on the occasions charged.

You must give careful consideration to the time frame within which the other acts are alleged to have occurred. The more remote the other sexual activity is, the less will be its weight … [ this direction will require amplification ].

[ Where appropriate If [ the complainant ] was of a young age at the relevant times, this would normally attract a warning under s 165(1)(c) of the Evidence Act 1995 (NSW), where requested … [ see: s 165(2) Evidence Act 1995 (NSW)].]"

82 In the present case, the evidence of which complaint is now made was not the subject of objection at the trial. Perhaps it should have been. At the very least counsel and his Honour should have clearly identified the basis of the tender which, so it now seems, was confined to evidence establishing the nature of the relationship. That evidence of the relationship was relevant to the jury is made plain by defence counsel's criticism of the complainant's evidence in her address to the jury where counsel emphasised the lack of evidence of the complainant reporting the appellant's conduct to her mother or any other responsible adult. However, whether evidence of other sexual activity was necessary or relevant to explain this matter or merely the explanation that her lack of complaint was motivated by fear of the consequences need not be determined. I am not entirely comfortable with 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 going to the issue of lack of complaint, outweighs the obvious prejudicial value. These matters need not be resolved in this case although they may require attention in other matters when evidence of this character is sought to be tendered.

83 The question which arises in this case is whether, having regard to the fact that the evidence was tendered merely for the purpose of providing the jury with the context in which the charged acts occurred and which would assist them in weighing her evidence, the directions given by the trial judge gave the jury clear guidance as to the appropriate principles. In my opinion they did not.

84 As I have indicated, at the conclusion of the complainant's evidence the trial judge gave the jury directions in which he described the relevant evidence as "what lawyers call relationship evidence" referring to the uncharged sexual acts. His Honour then takes the jury to specific questions and the answers given by the complainant.

85 Problems then emerge as his Honour tells the jury that the evidence is capable of placing "the five offences charged … (in) a true and realistic context." Although this statement is itself unexceptional particularly if there was an issue making the context relevant his Honour then says: "The Crown says that if you take the global view of all the acts, you would find as a fact, that within the accused there was sexual feeling or passion for the complainant, that he was prepared to satisfy."

86 Later, his Honour says: "If you are satisfied that the accused harboured sexual feelings or passions for her, that fact may well make more credible or believable the complainant's evidence of this specific five incidents that appear in the indictment."

87 In both these statements his Honour raised the question of the appellant's sexual desire for the complainant. By so doing his Honour has crossed the line between evidence of the context of the charged acts and evidence raising for consideration the propensity of the appellant to commit those acts. Before this was appropriate, the admission of the evidence as tendency evidence would have to be considered and appropriate and clear instructions given as to its use. 64 Howie J, with whom Latham J also agreed, said this in his further remarks: 114 Relationship evidence in its traditional sense is evidence that places the acts of the accused in context. So in Wilson v The Queen (1970) 123 CLR 334 the relationship between the accused and his wife was a relevant matter in determining whether the husband shot the wife or whether the weapon accidentally discharged. As Barwick CJ wrote at 337: It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.

The evidence of the relationship between the two persons was admissible to explain the acts giving rise to the discharge of the weapon. The evidence of the acrimonious relationship between the accused and his wife was admissible to put the shooting of the wife into context. As Menzies J pointed out at 344, to exclude the evidence would be to require the jury to decide the issue "as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife".

115 Relationship evidence which is relevant in this way is admissible under the Evidence Act and is not subject to the operation of the tendency rule because the evidence is not being admitted to prove a propensity or tendency on the part of the accused to do the act charged: R v Serratore (1999) 48 NSWLR 101.

116 So in child sexual assault cases evidence of the relationship between the accused and the complainant is admissible to give context to the particular allegations made by the complainant that form the basis of the charges in the indictment. Of course in cases of child sexual assault the evidence will be of a different character than might be the case in other types of offences. This is because of the secretive nature of child sexual assault offences and because they are frequently part of a continuing course of conduct by the accused toward the complainant. But in principle there is no difference between the purpose for which the evidence is admitted in child sexual offence trials and trials of other offences where the relationship between the accused and some other person is a relevant matter. It is admitted not to prove that the accused had any particular propensity or disposition towards the complainant but to put the particular allegations in the context of the whole of the relationship as described by the complainant.

117 Context evidence in child sexual assault offences will normally come from the complainant because it is part of the narrative or the history of events surrounding the particular allegations in the counts set out in the indictment. Its relevance will only be found in the extent to which it does provide an understanding of the particular allegations before the jury. Where the complainant is alleging a history of assaults upon him or her by the accused, the evidence, or some of it, may need to be admitted because it would be impossible for the complainant to give an account of the particular allegations without referring to uncharged allegations that proceed or surround them. It would often be unrealistic for the complainant to be expected to give an account of the particular allegations as if they happened "in a vacuum".

118 On the other hand evidence of the relationship between the accused and the complainant that is admitted for the purposes of showing that the accused had a tendency or propensity to have sexual relations with the complainant will almost never be found in the complainant's account of his or her relationship with the accused. That is because the complainant's account of the relationship would rarely have sufficient probative value to overcome the precondition of admissibility for tendency evidence in s 97 and s 101. It is presumably the lack of sufficient probative value of the complainant's evidence to prove a tendency on the part of the accused that led McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106 at [76] to require that evidence of the complainant to be used for this purpose to be proved beyond reasonable doubt. Tendency evidence generally does not have to be proved to that standard. Evidence of the accused's sexual interest in the complainant will usually be found outside of the complainant's evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally.

119 Both context evidence and tendency evidence can bolster the credibility of the complainant but they do so in different ways. Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant's version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable. But other than generally assisting the complainant's credibility in this way, context evidence does not make the complainant's account more reliable than it would be in the absence of that evidence. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment.

120 Tendency evidence on the other hand is direct evidence relevant to the commission of the offence charged. If accepted by the jury, it makes it more likely that the offence charged was committed by the accused. It bolsters the complainant's credibility because her version is more likely to be true if the accused has a tendency to behave in the way she alleges he did on specific occasions. 65 Howie J's reference to the way relationship evidence was used in the case of Wilson v. The Queen seems to indicate that Howie J would not consider evidence used for purpose (2) to be tendency evidence: I cannot see any relevant difference between evidence of hatred and enmity referred to in Wilson, and evidence of sexual attraction: both are ordinary motivational factors. 66 The trial judge's reference in Qualtieri to the accused's passion for the complainant "that he was prepared to satisfy" meant in my opinion that the trial judge in that case did countenance use of the evidence in question as evidence led for purpose (3), so on my approach he did allow it to be used as tendency evidence. The result of the decision in Qualtieri was therefore consistent with my analysis. McClellan CJ at CL's discussion could be considered contrary to my analysis, essentially because he does not distinguish my purpose (2), the purpose of relying on ordinary human motivation, from purpose (3). On the other hand, Howie J seems to accept that evidence of ordinary human motivation may be provided by relationship evidence, though he does not apply this view to a history of sexual encounters. 67 In all these circumstances, I do not think that either AH or Qualtieri contain a sufficiently clear ratio decidendi on the point to require a conclusion that my analysis is precluded by authority. I would add that the distinction between motivation and tendency seems to be supported in pre-Evidence Act cases: B v. The Queen (1992) 175 CLR 599 at 601-2; R v. Beserick (1993) 30 NSWLR 410 at 515-6. 68 However, I would accept that, even if there are theoretical distinctions between purposes (2) and (3), they may be considered of little practical significance where the complainant is a young child: sexual feelings of adult males towards young children are considered abnormal, and the ordinary motivational force of sexual feelings referred to in (2) cannot easily be kept distinct from a perception that a person having such feelings towards a young child is a particular kind of person who is likely to act on these feelings (engaging purpose (3)). Thus, evidence in such cases is not like evidence that a person charged with stealing (say) a rare stamp has a keen interest in such stamps, which would not be considered tendency evidence: it is unrealistic to liken evidence linking the ordinary human motivation of sexual feelings to a particular child, to evidence linking the ordinary human motivation of avarice to a particular kind of object such as a rare stamp, because as soon as one suggests that an adult male has sexual feelings towards a young child, one almost inevitably suggests that the person in question is the kind of person who is likely to assault the child. 69 Accordingly, I think that if, in a case where sexual assault against a child is charged, the Crown intends to call independent evidence of sexual activity towards the child on an occasion that is not the subject of a charge, it would be desirable, even if the Crown might otherwise be content for the evidence to be used for purposes (1) and (2) only, for the Crown to give notice that it is to be relied on as tendency evidence. Then the judge can decide whether it passes the s.101 test; and if it does not, the question can then be squarely addressed whether use of the evidence for purpose (2) passes the s.137 test, and if so, what directions should be given with a view to ensuring it is not used impermissibly. If the decision is that the evidence could only be used for purpose (1), then the question of probative value for that purpose, as compared with its prejudicial effect, can also be squarely addressed. 70 Indeed, I would suggest that the same approach should be taken where several assaults are charged, and there is corroborative evidence in relation to one of them and not others; because in such a case, there is a danger that such evidence would be used as tendency evidence. 71 In the present case, none of these issues were addressed at the trial; and in my opinion the appropriate course for this Court is to consider whether this caused a miscarriage of justice. 72 In the present case, the following features appear: (1) There was no explicit suggestion by the Crown or the judge that the corroborating evidence suggested that the appellant had a tendency to commit acts of the kind charged, or that he had a "guilty passion" for the complainant; although the Crown's submission that "there is no innocent explanation for that behaviour" and that the appellant "was caught red-handed", and the judge's comment that the appellant "was seen doing certain things which would back up what the complainant said happened", could be taken as implying a tendency. (2) No objection was raised to the evidence, or the Crown's submission, or to the way the evidence was dealt with by the trial judge. (3) The jury was warned against using evidence of other incidents as tendency evidence. (4) By the time of the final Crown address and the summing up, the accused had squarely denied the incident in respect of which there was corroboration, and so had pitted his credibility against that of both the complainant and her mother; and in that sense at least, the mother's evidence did "back up" the evidence of the complainant and supported the Crown case, quite independently of any possible effect as tendency evidence. 73 Further, in my opinion the probative value of the corroborating evidence for purposes (1) and (2) of the three purposes I identified did "back up what the complainant said happened". To the extent that the Crown's submissions about "no innocent explanation" and "caught red-handed" suggested tendency, that was not objected to, not supported by the judge, tempered by the judges' directions about tendency, and, having regard to the legitimate probative value of the evidence, not suggestive of a miscarriage of justice. 74 If the point about tendency evidence had been taken, an application could have been made under s.100, and issues under ss.100, 101 and 137 could have been addressed. In my opinion, the probable result, in the absence of any suggestion that the accused was taken by surprise by this evidence, would have been dispensation with notice; and in my opinion, the probative value of the mother's evidence of the kneeling incident as tendency evidence substantially outweighed its prejudicial effect, so long as proper directions were given, so that it passed the s.101 test and (if relevant) the s.137 test. If this evidence had been admitted for that purpose, the overall effect would have been unfavourable to the appellant, as compared with what actually happened. 75 For these reasons, I do not think any error has been shown in the judge admitting the evidence. I do not think any error has been established in the directions, and in any event I do not think any miscarriage of justice has been shown. I would not be satisfied that this is a case where it would be appropriate to give leave under r.4. Accordingly, this ground of appeal fails.

EVIDENCE OF 2001 COMPLAINT Submissions 76 In the original written submissions, Ms. Manuell submitted that the evidence from the complainant and her mother that in 2001 the complainant told her mother "the full story" was inadmissible hearsay which should have been excluded pursuant to s.59 of the Evidence Act. 77 In further written submissions, Ms. Manuell submitted that the matter was exacerbated by the Crown Prosecutor's closing address which pointed to the allegations against the appellant having been around since mid-2001 when the complainant told her mother, so that the complainant had been maintaining the allegations for three years. 78 In addition, in the further written submissions, it was put that the trial judge misdirected the jury as to complaint evidence, in particular in referring to the complainant's evidence that after the kneeling incident she had said to her mother there were just two occasions, namely that occasion and when her brother had walked in on them; and the trial judge did not refer to the fact that the complainant's mother had said that the complainant did not complain to her on that night.

Decision 79 As regards the 2001 complaint, evidence about that was given after it was put to the complainant in cross-examination that the 2001 telephone call from the appellant, when the appellant allegedly said words to the effect that the complainant had "wanted it", "came out of the blue", this plainly being directed to discrediting the complainant's account of that telephone call. In those circumstances, in my opinion, evidence became admissible to explain the origin of that telephone call; and the only satisfactory way in which that explanation could be given was for the complainant to give evidence that she had shortly before the call told her mother about the alleged assaults, and then combining this with evidence from the mother that, having been told this, she asked the appellant about it. 80 Accordingly, the evidence was admitted for a purpose other than the purpose of proving the truth of the representation, namely the purpose of explaining the origin of a telephone call, the happening of which had been challenged on the basis that it "came out of the blue". There was no contravention of the hearsay rule. 81 As regards the other matters, in my opinion no error by the trial judge or miscarriage of justice is suggested by what the Crown Prosecutor said about the 2001 complaint in his address; and no material error and no miscarriage of justice is suggested by what the judge said about the complainant's statement to her mother after the kneeling incident: on any view, that statement was not a complaint about the incidents charged, and indeed involved a denial of the incidents charged, thus counting in favour of the appellant.

UNREASONABLE VERDICT Submissions 82 Ms. Manuell referred to M v. The Queen (1994) 181 CLR 487 at 494. 83 She submitted that the lack of specificity in the complainant's evidence was so pervasive that it was unsafe to convict the appellant on the basis of her evidence alone. Her brother's evidence was inconsistent with hers, so as to have no corroboratory value, and the "corroborative" evidence of the complainant's mother should not have been admitted. On the whole of the evidence, it was submitted it was not open to a properly instructed jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Decision 84 For the reasons I have given, in my opinion the "corroborative" evidence of the complainant's mother was admissible, and no material error or miscarriage of justice has been shown in connection with its admission. 85 When one has regard to the effect of that evidence both as to the credibility of the complainant's evidence and the credibility of the appellant's denials, in my opinion it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

ORDERS 86 For those reasons, in my opinion the appeal should be dismissed. 87 GROVE J: I have had the advantage of reading the judgment of Hodgson JA in draft and I gratefully adopt his summary of the evidence at trial, which led to the conviction of the appellant, and his sketch of other background facts. 88 In relation to Ground 1, I wish to only to make a few observations concerning some of the appellant's arguments. Not only was it obvious that the delay referred to by the trial judge in his charge to the jury was not caused by the appellant, but it was equally self-evident that the purpose of the cautions which he was directing to be exercised was to counteract any prejudice to the appellant. It was not necessary to incant warning in the terms now submitted. 89 The complaint that his Honour did not tell the jury that delay meant that the evidence would not be adequately tested can be seen to be without substance by attending to what was said, including: In this regard (the effects of delay) you have got to take into account those matters put to you by counsel, including that it was impossible to test a lot of these allegations. (The emphasis is added). 90 The plain theme of these instructions was the avoidance of prejudice to the appellant by reason of forensic disadvantage. There were express references to the unavailability of possible witnesses and that the appellant may have been placed in a "different position". In the absence of some specific factor being identified by the appellant, the warnings were adequate to the circumstances. It should not be overlooked that the essential circumstance was that the trial involved a central issue of proof of sexual molestation as asserted by the complainant against a denial by the appellant that anything of the sort happened at all. 91 In connection with Ground 2, Hodgson JA has engaged in a detailed analysis of evidence categorization with particular attention to evidence of relationship, tendency or motive. 92 It is to be observed that Ground 2 complains of "incorrectly admitted evidence" and the focus of challenge was upon acts and conduct of the appellant which was not the subject of charge in the indictment. 93 In KRM v The Queen (2001) 206 CLR 221, McHugh J said (at 233): Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of the century.

Hayne J (at 264) made a similar statement. 94 Both of their Honours added that it would sometimes, perhaps often, be necessary to give to a jury a warning about propensity and the limit upon use of evidence of this type. 95 Of course, in New South Wales, the Evidence Act 1995 has provisions about tendency (propensity) evidence, relevant extracts being set out in the judgment of Hodgson JA. However, in my view, the critical matter in the present instance is that the jury were unequivocally directed against the use of the challenged evidence in an impermissible way. Garling DCJ charged the jury: "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 and therefore it cannot be used as an element in the chain of proof of the offences charged."

The full context in which this extract appears is set out in the judgment of Hodgson JA and I will not repeat it. 96 Once the use of the challenged material was excluded from establishing tendency on the part of the appellant, the restrictions, in particular those in s.97 of the Evidence Act, became irrelevant: Mearns v R [2005] NSWCCA 396. 97 The evidence was admissible, as KRM makes clear, and I am of the view that Ground 2 should be therefore rejected. I do not find it necessary to join in the analysis undertaken by Hodgson JA and I would, respectfully refrain from expressing any opinion about the matters which he has canvassed. 98 I share and do not need to add to his Honour's reasons for not sustaining Ground 3. 99 I agree that the appeal should be dismissed. 100 ADAMS J: I also have had the advantage of reading in draft the judgment of Hodgson JA and also gratefully accept his Honour's summary of the relevant facts. I agree that the first ground of appeal should be rejected for the reasons given by Hodgson JA and supplemented by Grove J. I also agree that Ground 3 should be rejected, for the reasons given by Hodgson JA. 101 As to Ground 2, I agree that it should be rejected, in substance, for the reasons given by Grove J. If I may respectfully say so, the analysis undertaken by Hodgson JA is logically attractive. However, the increased precision at its heart is, I fear, more apparent than real and will likely make it more rather than less difficult for judges to direct juries where tendency and/or relationship evidence is a significant part of the prosecution case to ensure that unfair prejudice does not mar the trial. It should also be remembered that there are formidable forensic difficulties faced by an accused who wishes to challenge -- as he or she is fully entitled to do -- generalised relationship evidence, which is made not much easier where particular occasions are embedded in that evidence that are not the subject of a charge. 102 I would join with his Honour's opinion that it is essential that the Crown prosecutor should indicate at the very outset of the trial the evidence that it is proposed to adduce which is capable of being regarded as either tendency or relationship evidence so that issues of admissibility and, if admitted, appropriate directions can be addressed at an early stage. 103 Accordingly, I agree that the appeal must be dismissed. **********

31/08/2006 - "riot" changed to "not" - Paragraph(s) par.98

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