Ground 2
108 As I have previously indicated the trial judge addressed the evidence of the appellant's violence during the course of the trial. At the conclusion of the evidence of KG his Honour spoke to the jury about the relevance of the evidence of the appellant's violence and the assault of KB. I have set out his Honour's direction at [115].
109 The Prosecutor then raised the issue of violence in his final address. A lengthy submission was made in the following terms:
"Then comes the other aspect of his behaviour with these children. The question of his violence and his anger. Can you imagine how confused and bewildered these girls would be. Here he is coming into the household as a family figure, changing their names by deed poll, playing, giving them treats and then there's this violence. This violence that every member of the family, every child is a recipient of.
KB told you that he'd belt you with a leather strap for the slightest indiscretion. If you answered back or drop a plate being an example, Back of the legs, backside with - and also on the hand. She tells you that she saw it, the beltings of D and she told you that it was not so much on S. And you recall the strap hanging over the coathanger in exhibit C, the photograph of the bedroom. Even the accused said yes that looks like and possibly was one of the belts that he used. And we all - it's common knowledge or commonly accepted that D ran away because he was terrified. He was terrified and he hid. You recall what D told you about Sussex Inlet when S dobbed him in for smoking. He was confined to his room for a week. And D also recalls that the accused use to lie on the lounge with K.
You see D demonstrated by showing you how he was belted with this strap. The accused had it doubled over. He had his hand around the buckle and he raised his arm above his head.
And you recall S came along. He demonstrated you might think how, exactly how the accused demonstrated how he was belted but S went a bit further than that. Immediately after and without any prompting and without question about it immediately after he said, 'But it wasn't above his head'. So it's a matter for you what weight you put on S's evidence as to that. It might well be that S was still trying to be his favourite.
You see both D and S gave evidence of a falling out with their mother and their sisters. And the difference being is that S thinks the accused was a normal father and everybody else in the family knows the truth about it.
In cross-examination the accused was asked this, words to this effect, 'Where would you go to get a belt to discipline them? Where would you go to get a belt to discipline them?' His answer was, 'If there was a belt it could've been on the lounge or hanging on a door knob. If no belt used his hand.' Well there's two other witnesses to say that it was readily available on this door knob. M and K.
K tells you that he was always cranky, shouting, throwing things around, driving off in a temper she described as a hoon. She tells you how her mother was treated and her words are that 'She was treated like a doormat.' Had to do what he told her. She had no confidence. This is K telling you how her mother was treated. She had no confidence. She had several breakdowns.
And M told you this, MW, he is very domineering, demoralising. She had mental stress, breakdowns, periods in hospital. 'He took, my self esteem away.' And she was asked in cross-examination words to the effect, 'Did you ever ask K about these special gifts?' and her response was this, 'I wouldn't in a frame of mind to do that. Downgraded, abused, drained of self respect. I was just an empty shell. I would get abused if asked him about the special gifts', so she said that if she questioned him about those special gifts he was of such a nature and such a character that he would abuse her.
S says regarding the violence, 'He would strike out at us when mother's not there. He'd cane us with the dowel' and recall the doweling coming from that old drier that you hang your clothes on. Apparently there's a fan that blows hot air up through the clothes.
She recalled one time that they were all lined up. He accused them of doing something and she and D stepped forward at the same time and they both got caned. And if you flinched you'd get another one.
She tells you that she - this is S - was terrified of him. She recalls on one occasion that she ran into her bedroom, got under the bed, hid behind some toy boxes for two hours waiting for her mother to come home. She wet her panties. This accused instilled fear into these children. He broke their spirit and how could they cope with this in their minds. That is the conclusion about the niceness, the violence and then at a later time the acts, essential acts are also acts of violence. Exhibit B, this group photo, S is about five. There's S. And K was about seven or eight. It wasn't until a year or so later before S started to get abused but at this time the accused was penetrating the vagina of this girl K with his fingers.
M says that he used to - she seen him discipline D. He'd belt him if he back chatted. She told you about the force. That it was a hard force via the belt or the doweling rod. She told you that the belt was kept on the door handle going into the lounge room and the accused, as I've read out to you what he said in relation to it that it could've been on the door handle ready there as an intimidating threat on these children."
110 Later he said:
"And you recall that K gave evidence that she was going to tell her mum who was in hospital. She got up that morning and made her way to the hospital area and she said - she tells you that she talked herself out of it and why did she talk herself out of it? Because she was scared and she did not know what he would do to her.
This is the man that has demonstrated violence to the girls and to D in front of them. See he flogged D to such an extent that he'd run and hide down at his friends at the Vale of Clwydd and these acts, sexual acts they were also violence penetrated upon a fourteen year old girl."
111 Later, when summarising the sequence of events the Prosecutor referred to "the beltings. The introduction of violence into it. These girls would've been so bewildered and confused, scared and threatened. He eventually broke their spirits …"
112 Defence counsel also addressed the issue with the jury. He said:
"Let's just have a look at this, there's something mysterious about this case isn't there. There's something mysterious about the main prosecution witnesses. Are those prosecution witnesses K, S, M, D are they so truthful that on their evidence you could be satisfied beyond reasonable doubt of the guilt of the accused. They paint a picture of this man as a lazy, a heavy drinker, person who wouldn't work, violent, cruel, child sexual molester, that's the picture they paint in one way or another. And then how do you reconcile that evidence with the evidence of SR, SGS, and RN. You see someone's not telling the truth, And it's interesting that the people SR, SGS and RN don't have the bitterness or the resentment towards this man, that those other witnesses have. You see isn't the situation that the evidence and the attitude of K, S, M and D is poisoned with bitterness towards the accused. How impartially and fairly have they given their evidence."
113 Later when speaking of the evidence of SK he said:
"What about S, well one thing that might stand out from your commonsense and experience of life that despite the sexual misconduct by the accused towards her she still manages to become dux of the class. You might expect in the normal course of things with something like this, that her school performance would deteriorate. And what about the things that she says, she's a great exaggerator S, if you examine her evidence she is a great exaggerator. For instance, 'I always used to try and put myself to bed before it was even dark to avoid it' imagine that, imagine that. This is this young girl, 'I always used to try and put myself to bed before it was even dark to avoid it' no one else says it. And she was asked a question by the prosecutor, if you did something wrong - it was about when she went into the bedroom and this is what her answer was 'I ran to the room, I hid underneath the bed behind the toys and boxes was there for two hours until mum got home that terrified that I wet myself.' If you analyse her evidence it's melodramatic, and it's riddled exaggeration.
Look at the words she used in the witness box. She talked about K being quite a nice bloke in the beginning, then she says he grew into a violent, lazy man, he was always off work us kids would have to do a lot of work around the house, we would have to do the housework, he would just lay around usually all the time, the kangaroo rug was there, he would strike out, violently abuse us, belt us whenever he could, if you flinched you got another strike of the wooden dowel. She used the words anger, terrified, flogged D. She was asked in relation to the flogging of DR, With what force? This is what she said 'Violently extreme force left welts.' She talked about a passionate kiss, the breaking of the lamp at Sussex Inlet, 'I went running back to the cabin to mum terrified because I knew I would get into really big trouble' but there's no evidence she got into any big trouble. Look at her evidence melodramatic, exaggerated, over the top. Yet the prosecution says be satisfied beyond reasonable doubt of her evidence about the guilt of the accused."
114 Defence counsel also reminded the jury of the evidence favourable to the appellant. This included SR's evidence that the appellant used a leather strap to discipline the boys; that it was MW who used the cane; that he never saw the appellant hitting the girls; that the appellant was employed and did the housework; that the appellant rarely drank alcohol in the house; and that he could not recall the girls receiving special gifts. SR denied that the appellant was violent, cruel or lazy.
115 In his summing-up, the trial judge gave the jury directions relating to the delay in complaint. His Honour said:
"Now the Crown case is that you would accept that both KG and Ms K made no immediate complaint about what she said the accused was doing to her because she was in fear of the accused. You have heard a lot of evidence in the Crown case abut the type of discipline the accused administered within the family and you have also heard some evidence how the accused behaved towards the child's mother.
The Crown says the complainants thus had a perception of the accused as a man who was easily angered and who would be violent and this is why they felt they could not do anything to stop what he was doing or to complain about it.
A specific example the Crown Prosecutor referred to was the evidence given by KG that the morning after the accused committed the acts that are relied upon for counts nine and ten she got up early, made the decision to tell her mother and walked to the hospital but by the time she got there she had talked herself out of it because she was scared of what the accused would do to her.
Now the defence case has presented an alternative version of events. The accused denied that he was any way overly angry let alone violent with anyone. The discipline he said he administered was moderate and only when called for and only in relation to the boys. Ms RN, his former wife, said he was not an angry or violent man. SS, his sister, described him in the same way. SR said the accused was not violent or cruel and he, S, described the manner in which the accused used the belt and I have referred to the demonstrations that were given to you."
116 Early in the summing-up his Honour reminded the jury of the evidence of the appellant's character. His Honour reminded the jury that there was evidence of the appellant's propensity for violence but said that he would not go into the detail. His Honour said:
"The next direction I must give you concerns some evidence about the character of the accused. There was evidence from Detective Sinton when he was being cross-examined by Mr Walsh that the accused has no criminal convictions for assault or sexual assault. Then there was evidence from Ms SS, the former sister in law of the accused, that in the period of time in which her family had contact with the accused and his wife, RN, she had no concerns about the accused in relation to her daughters of a sexual nature. It is a matter for you what you make of that broad statement. She was not asked about the type of contact he had with those daughters except that it was on occasions when the families visited each other's home when adults were present. Ms N, who was called by the Crown, said that the accused was not a violent man; he was not lazy, he was not a heavy drinker of alcohol. She said he was always happy go lucky and did not easily get angry. She saw him in the company of the children in her family and she said he related well to them. Despite the fact that she lived in Lithgow and the accused had for some time lived in Ballina, she said that they had retained their friendship and she was supportive of him in relation to the allegations that are subject of this trial. SR described the accused as easy going. He said he was not a bad person, he said 'He was always good to us, Mum and the four children.' He said the accused was not violent or cruel.
Mr Walsh has argued that you would take this evidence into account as establishing those specific aspects of the character of the accused. In the Crown case, however, there is evidence that conflicts with the evidence I have just been referring to. I do not propose to go through the detail of it but I am referring to the evidence by the two complainants, Ms G and Ms K and MW and DR about the accused they say being a violent and domineering type of person who had them living in fear. Now it is a matter for you whether you accept the evidence in the defence version of it about the character of the accused. If you do, then the law is that the accused is entitled to have you take this evidence into account in a particular way and that is that the fact that he is a man of that type of character entitles you to consider the improbability of him having committed the offences alleged. In other words, you are entitled to take this aspect of the character of the accused into account on the question of his guilt. This does not mean of course that this provides him with some kind of a defence; it is only one of the many factors that you must take into account in determining whether you are satisfied beyond reasonable doubt of his guilt."
117 The appellant submitted that the trial judge's directions were inadequate. It was submitted, relying upon R v JDK [2009] NSWCCA 76 that the jury should have been directed both at the time the evidence was given and in the summing up of the confined use which could be made of the evidence. This meant that the jury should have been told in clear terms that the evidence was tendered in order to provide background to the relationship so that the evidence of the complainant and her response to the alleged acts of the accused could be evaluated with a complete understanding of that alleged relationship. It was further submitted that the jury should have been told that they could not use the evidence as tendency evidence.
118 The appellant's submission reflects a misunderstanding of my remarks in JDK which was concerned with other actions by an accused of a sexual nature involving the complainant, referred to in HML as "uncharged acts." The appellant refers to uncharged acts or discreditable conduct, presumably a reference to Hayne J in HML.
119 Although violence is plainly discreditable, it is not the kind of evidence or conduct which Hayne J had in mind. The purpose of its tender was to put the allegation in context but it provided evidence of quite a different character to the substantive allegations.
120 In the present case, although the evidence of the appellant's violence provided the jury with information about the context in which the crimes allegedly occurred, its primary relevance was to explain the complainants' apparent acquiescence and failure to report the events when they happened. Although his Honour directed the jury as to the purpose of the evidence at the conclusion of KG's evidence, he did not otherwise refer to the issue until the summing up. Although he could have done so, I do not believe it was necessary. Having had the purpose of the evidence explained to them after KG's evidence I am in no doubt that the jury would have readily understood the purpose for which similar evidence from the other witnesses was admitted.
121 I have set out above the directions which the trial judge gave in his summing up. They were consistent with the purpose for which the evidence was admitted and did not elevate the evidence beyond its appropriate significance in the trial. Trial counsel raised no issue with respect to the directions and rule 4 applies. There being no arguable error I would decline leave to raise this ground.