Lyndon v R

Judgment 1BASTEN JA: On 26 December 2010 seven year old twin sisters, identified throughout these proceedings as TG and SG, were being cared for by their grandmother (in fact their mother's step-mother), who lived in a town in northern New South Wales. (Their home was in Queensland.) The grandmother, Ms D, had driven the girls from Queensland, arriving at her home on the afternoon of 26 December. On arrival, she discovered that her husband had left her. The applicant lived next door. On learning of Ms D's distress, he offered to look after the children at his house and to cook dinner for them. (The names of the girls and the witnesses related to them are not used in these reasons in order to minimise the risk of a publication identifying the girls, in breach of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).) 2The girls did not stay for dinner, but returned to their grandmother's house. The applicant later arrived with dinner. It was arranged that the applicant would take the girls to the shops the following day and buy them ice creams. However, before he arrived on the afternoon of 27 December, the girls told their grandmother that the applicant had removed SG's pants and underpants and licked her genitals. Later that day, Ms D took the girls to the local police station. 3On the basis of the complaints, the applicant was charged in relation to TG with two offences of assault involving an act of indecency, contrary to s 61M(2) of the Crimes Act 1900 (NSW), and in relation to SG, two offences of assault involving an act of indecency and a further offence of sexual intercourse with SG, then being under 10 years of age. He was found guilty by a jury on two counts against SG, but was acquitted of the other three charges. On 23 November 2012 he was sentenced to an effective term of six years, with a non-parole period of three years dating from 26 October 2012. The present application for leave to appeal is limited to the convictions: the notice of appeal was filed on 23 August 2013. 4The four grounds of appeal relied upon before this Court were: "1. A miscarriage of justice was occasioned as a result of the Crown Prosecutor's closing address to the jury. ... 3. The learned trial judge erred in failing to direct the jury that they could not use the evidence of acts alleged against one complainant as tendency evidence with respect to the acts against the other complainant. 4. The verdicts of the jury are unreasonable or cannot be supported by the evidence. 5. A miscarriage of justice was occasioned by the failure of the appellant's counsel to lead medical evidence supporting the appellant's evidence that he was unable to kneel at the time of the offences." 5Following a hearing in this Court, on 14 March 2014, the applicant sought to re-open the hearing for the purpose of tendering an audio recording of the prosecutor's closing address. The application was accompanied by an affidavit of the applicant's solicitor noting that counsel had instructed him to obtain the audio recording in August 2013, but that he had failed to take any steps until reminded by senior counsel three days before the hearing. (Nothing was said at the hearing of the intention to invite the Court to listen to the audio recording.) The applicant did not propose that there be a further oral hearing, but sought leave to file brief written submissions if the recording were admitted. It is convenient to deal with this application in the course of considering ground 1 of the proposed appeal, which alleged that the prosecutor's address had caused the trial to miscarry. 6Before addressing the specific grounds of appeal, it is convenient to provide some further factual background by reference to the evidence adduced at the trial.

Summary of evidence 7The principal lay witnesses for the prosecution were the girls, SG and TG, and their grandmother, Ms D. The girls' mother also gave evidence, confirming the arrangements made for her daughters to travel to New South Wales and the events which followed the complaints. The girls were returned the following day to their home in Queensland. On 30 December she had identified with the complainants the clothes worn by SG on the day of the alleged offences. Only SG was able to identify the pants which she had been wearing, for which DNA testing identified samples originating from more than one individual. That person was not positively identified as the applicant, but the applicant could not be ruled out as a contributor to the sample. 8In relation to the two offences committed on SG, for which the jury convicted, there was evidence of SG herself and evidence from TG, who witnessed the offences. With respect to the third offence (a touching of SG's chest), of which the applicant was acquitted, TG did not witness the conduct complained of. Further, with respect to the two offences allegedly committed on TG (of which the applicant was acquitted), TG had originally denied any assaults when the girls first spoke to their grandmother on 27 December. Further, her later complaints were not supported by SG, who did not see the conduct complained of taking place, beyond the applicant pulling down TG's pants. 9Counsel for the applicant accepted that there was a rational basis for the convictions and acquittals: the convictions relied upon the availability of supporting evidence from TG. However, because TG's evidence was not, apparently, sufficient to satisfy the jury as to the offences committed on her, the applicant submitted that her evidence should not have been accepted as a sufficient basis for the allegations made by SG. 10The evidence in chief of SG involved a video recording undertaken by New South Wales police, but based on interviews recorded in Queensland. 11SG said that after arriving at her grandmother's house, she went next door with a man, whom she identified as "Nick", but who was accepted to be the applicant. The applicant's wife was not there. The applicant put on a DVD of a cartoon which the girls watched while sitting on the lounge. Initially, the applicant was in the kitchen. At one point, SG went back to her grandmother's home to get a drink. She said that the applicant and TG had been looking at a "temporary tattoo" which TG had on her belly. The applicant then came over to the lounge "pulled down our pants and our undies" and "started licking my nu-nu." She later said, "I told him to stop but he kept going." That occurred whilst she was sitting down. She said that the applicant was kneeling on the ground. After that occurred, she said that she and her sister pulled up their pants and went back to their grandmother's house. Although she said that he pulled TG's pants down, she denied that he otherwise touched TG. She added that after he had licked her "nu-nu" (identified on a sketch diagram as her genital area) she said that he licked her belly and her "boobies". 12The first assault charge with respect to SG related to the pulling down of her pants, the sexual intercourse charge related to the licking of her genitals and the second assault charge licking her chest and nipples. 13In cross-examining SG, counsel for the applicant took her through her evidence up to the complaints made to the grandmother the following day, without touching on the allegations of assault. He then obtained confirmation that it was TG who said to the grandmother words to the effect, "The man next door licked [SG]": Tcpt, 29/08/12, p 38(40). Upon the grandmother expressing doubt, both girls said, "It's true". SG was taken through her evidence of complaint with no suggestion that any aspect was untrue. 14Counsel then suggested to SG that her complaints about the applicant's conduct on the previous day were not true. The only specific points of challenge to SG's credibility were two matters which were already apparent. First, in her police interview, she had said that immediately after the assaults she and TG pulled up their pants and ran home, told their grandmother and locked up all the doors. She agreed that that was not true: Tcpt, p 43(45). Secondly, SG confirmed that at the time of the initial complaint TG had denied to her grandmother that the man had touched her (TG): Tcpt, p 39(5). Counsel obtained a concession from SG that when TG denied being touched, she believed that to be true: Tcpt, p 47(25)-(50). Nevertheless, she affirmed that the man did touch her sister: Tcpt, p 50(30). 15The cross-examiner also tried to elicit evidence that if the events complained of had actually happened, SG would have complained herself and would have complained immediately she returned to her grandmother's home. He suggested that her request to her grandmother not to tell her mother was because the complaints were untrue: she denied that. There was also a suggestion that the twins were very close to each other and that "sometimes things that happen to your sister you feel they happen to you", to which SG replied, "I'm not sure": Tcpt, p 50(15). (The question seemed to imply that TG had been assaulted, but that SG had not.) 16It is unlikely that the cross-examination would have significantly undermined SG's credibility as a witness. What was missing from the challenge to her evidence was any possible motive for lying to her grandmother (and maintaining the lie). On the contrary, the cross-examiner elicited that the girls had never met the applicant before the day of the assaults; that they had enjoyed playing hide and seek with him in their grandmother's home before they went to his home, and that they willingly went to his home and watched a DVD. 17While there was opportunity for the girls to have fabricated the story overnight, there was no express suggestion that they did that. Their failure to complain on the evening of the events was a matter for the jury to assess; the apparent trigger for the complaint by TG was that they were about to be taken by the applicant (albeit in company with his wife) away from their grandmother's home. 18The evidence that SG gave with respect to the assaults on her sister was less convincing. Not only did she agree with her sister's initial complaint that the applicant had touched her (SG) and not TG, but her account to the police of the assault on TG was merely that he had pulled her pants down at the same time he had pulled SG's pants down. Although he told TG not to pull them up, there was no suggestion that he touched her at any other point. After describing how he had licked her, SG said, "we pulled our pants up, after he went away we pulled our pants up and then we ran home": Tcpt of police interview (SG), Q137. 19TG's statement to the police alleged that the applicant had pulled her pants down while SG was at her grandmother's home. TG also gave evidence of the applicant licking SG's genitals and said that after he had done that, he licked his finger and "put it in, wiped my noo noo": Tcpt of police interview with TG, Q139. 20In her police interview, TG was confused as to the timing of various events. Her evidence as to what the applicant did to SG was consistent with SG's account. Her statement that the applicant pulled her pants down was also consistent with SG's account. However, she seemed to be saying that the applicant pulled her pants down on two separate occasions, the first being when SG was not in the room. Further, her account of the applicant touching her genitals, which apparently took place in the presence of SG, was not confirmed by SG. TG was cross-examined as to her account of the applicant's conduct with her sister, and confirmed that she had described what happened. However, when it was put to her that the applicant did not pull her pants down, she answered, "Not sure": Tcpt, p 121(30). The cross-examination concluded with the suggestion that "[t]he man next door didn't wipe his finger or lick his finger and touch your noo-noo did he?" TG replied, "I don't remember": Tcpt, p 123(20). 21TG gave no evidence of the applicant licking or touching SG's chest. 22On the basis of this evidence, it was unsurprising that the jury drew a clear distinction between the different charges, finding the applicant not guilty of both charges relating to TG and the last charge relating to touching SG's chest.

Ground 1: closing address for prosecution 23The first ground of appeal, which was dealt with at some length in submissions in this Court, alleged that the trial had miscarried because of statements made by the prosecutor in addressing the jury.

(a) general principles 24The principles governing the proper conduct of a prosecutor in a jury trial were explained in R v Livermore [2006] NSWCCA 334; 67 NSWLR 659 at [24]-[52] (McClellan CJ at CL, Johnson and Latham JJ). It is sufficient for present purposes to summarise the principles in two broad propositions, namely that: (a) although the prosecution case should be presented in the best light, with appropriate firmness, that should be done with fairness and professional detachment, eschewing intemperate or inflammatory language; (b) the case to be presented is that revealed by the evidence, with respect to which the personal opinions of the prosecutor are irrelevant and potentially distracting. 25These principles will operate differently depending upon the circumstances of the case. Where the offending is inherently likely to inspire feelings of distaste or even revulsion which may cloud an impartial assessment of the evidence, particular care should be taken not to play on possible prejudice or emotion. This case, involving allegations of sexual conduct with young children, although the circumstances were not the most serious of their kind, carried with it the risk of prejudice. However, that was not the focus of concern in the present appeal. Rather, the applicant relied upon a number of passages in which the prosecutor had expressed personal opinions about the evidence of young children, arguably implying a degree of expertise in assessing such evidence. Before dealing with that material, it must be noted that no complaint was made at any stage during the trial by counsel for the accused. By contrast, in Livermore, immediately after the prosecution addressed, counsel for the accused sought a discharge of the jury. 26There are two difficulties which commonly attend such challenges. First, while the court has an obligation to intervene where satisfied that a trial has substantially miscarried, in addressing a challenge to a conviction, the court is conscious of the limitations attending any attempt to assess the fairness of a trial on the basis of a transcript of what was said. Secondly, there are things that are not said: thus, the defence may make tactical decisions as to how a trial should be run which are not directly revealed in the transcript or any other record of the trial. 27The first difficulty may be lessened by inviting the court either to listen to an audio recording of what was said in the course of a trial or, if available, to view a video recording. The second difficulty may be overcome if the representatives of the accused (or the accused himself or herself) is allowed to present evidence of tactical decisions which were or were not made. 28There are problems attending the latter course, even when evidence is sought to be adduced from trial counsel as to why a particular course was taken. (In this case evidence was tendered from trial counsel, but not in relation to this point.) However, the underlying issue remains: counsel for the applicant took no objection at trial to any part of the prosecutor's address and did not seek either a discharge of the jury or directions from the judge to ameliorate the supposed prejudicial effect. Generally, an accused should not sit by and note errors occurring in the conduct of a trial for use in a subsequent appeal. On the contrary, if a potential flaw is foreseen, steps should be taken to avoid that occurring, or to ameliorate its effect once it has occurred. Consistently with this approach, the Criminal Appeal Rules (NSW) provide: 4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal. 29Rule 4 was said not to operate in the present case because no direction from the trial judge would have been adequate to overcome the effect of the prosecutor's address. However, that is not an adequate answer, for two reasons. First, if a direction had been thought necessary and had been sought and given, the appeal would then be concerned with an assessment of whether the steps taken by the trial judge were adequate in all the circumstances. The fact that no direction was sought explains the omission by the trial judge, but does not take the case outside the operation of r 4. Secondly, it should not be assumed that the principle underlying r 4 does not operate because the rule does not in terms deal with a discharge of the jury. The principle identified above imposes on both parties, as well as the court, obligations with respect to the running of a trial before a jury. If the circumstances appear to call for the jury to be discharged, such an order should be sought and its appropriateness debated by those at the trial.

(b) tender of audio recording 30The applicant did seek to address the first difficulty noted above, namely the limitations of acting on a transcript. He invited the Court, belatedly, to listen to an audio recording of the prosecutor's address. That course was opposed by the Director. There are four reasons why the invitation should not be accepted. 31First, the substance of the complaint is not inflammatory or intemperate language, but the expression of irrelevant opinions. It will be necessary to turn to those opinions shortly, but their combined effect was summarised by the applicant in the following terms: "When viewed as a whole the Crown prosecutor's address risked giving the jury the impression that the prosecutor had a particular expertise with respect to children. Various parts of the address conveyed to the jury that aspects of the complainant's [sic] evidence and the manner in which it was tested, were such that the evidence had a particular veracity, based on the prosecutor's particular expertise." There would be a stronger case for inviting this Court to listen to an audio recording if the complaint were of inflammatory language or, indeed, language which did not appear to be inflammatory on its face, but was delivered in an inflammatory manner, a characteristic which might be revealed by an audio recording. 32Secondly, the applicant submitted that the limited role of the prosecutor's address meant that the recording could be listened to satisfactorily in isolation from other aspects of the trial. That exercise would not involve the potential for misleading which might attend listening to (or even viewing) the evidence of one witness only (such as a video recording of a complainant's evidence), giving it an immediacy which is not replicated with respect to other witnesses. That factor may be accepted, but it does not address the broader issue as to the function of the appellate court. 33The increasingly common circumstance that the Court is asked to review the whole of the evidence in order to assess a challenge that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence, imposes a significant practical burden on the operation of the Court. The additional burden of listening to parts of the trial (let alone the whole trial) or, as the availability of video recording increases, viewing the whole of the trial, raises a serious question as to the proper function of the Court and the allocation of public resources to allow it to carry out that function. That is not to say that, in a proper case where good reason is shown, the Court will not listen to an audio recording or a video recording of a trial. Rather, it is to say that good reason for taking such a course must be established: that was not revealed in the present case. See, with respect to a request that the Court listen to an audio recording of the judge's summing up, Versi v R [2013] NSWCCA 206 at [5]-[9]. 34Thirdly, there is the fact that no objection was taken to the prosecutor's manner of addressing the jury, either during the address or thereafter. If counsel for the applicant had been concerned that the prosecutor was exceeding the proper bounds of his position, that complaint should have been raised at the first reasonably available opportunity. Interruption of the address is to be discouraged, but objection can be raised at a convenient break in proceedings. That was not done. 35Fourthly, there is the fact that the audio recording was proffered only after the hearing of the appeal had been completed. It may be accepted that counsel for the applicant had considered the possibility of inviting the Court to listen to the audio recording more than a year before the hearing, but that the solicitor (according to his own affidavit) had failed, without any apparent reason other than forgetfulness, to take the necessary steps to obtain the audio recording. It may further be assumed that until the recording was obtained counsel had no firm basis for knowing whether the Court should be invited to listen to it: were that not so, one would have expected that the Court would have been warned during the hearing that the audio recording was being sought and would be tendered when it became available. That did not happen. The solicitor's affidavit stated that counsel had since listened to the recording and formed the view that "the Court may be assisted by listening to the recording." No basis for that view was provided. 36Mistakes can be made in the preparation for a hearing. Where a mistake is made by a legal representative which has potentially prejudiced the position of his or her client, the court will, so far as practicable, seek to deal with the matter in a way which diminishes any perceived prejudice to the party who is not individually at fault. 37The Court sought clarification from senior counsel as to whether the applicant sought to reopen the hearing and was advised that that was not sought; rather it was proposed to file a brief written submission, but noting that the impact of the address "is ultimately based on impression." 38The application should be refused for three reasons. First, the unsatisfactory procedural errors cannot be entirely disregarded. If the audio recording has some (as yet) unidentified significance, both parties should be given an opportunity to address the issue. Secondly, it should not be left to the Court to identify that issue. Thirdly, although the application relates to an address, rather than evidence or the summing up, there is still a difficulty in placing it in the context of the trial and in knowing how it would have been perceived by those present.

(c) impugned statements of prosecutor 39Returning to the primary submission, it is necessary to refer to the passages relied upon by the applicant as demonstrating that a miscarriage had occurred. 40The complaints about the prosecutor's address ranged across a number of different issues. The primary complaint, however, was that the prosecutor purported to tell the jury, on the basis of his experience and expertise, that children, generally, can be relied upon to tell the truth. Thus he said at Tcpt, 03/09/12, p 4(10): "A great many people would have difficulty accepting a child's word over an adult saying that they are wrong. No[w] there is no evidence in the trial and as far as the Crown knows, no evidence at all that children are any more or less likely to tell lies on their oath in a court. [SG] and [TG] are nine. Some people would say well, kids fantasise. The Crown says to you that you know, you know, from your own childhood from your children or grandchildren, that kids know the difference between their fantasies and what happened to them in real life." 41Subsequently, in dealing with the police interviews with the complainants, the prosecutor noted that some questions were repeated and asserted that "it is dangerous to repeatedly ask little kids the same question because they get the impression they've given you the wrong answer and will change it": Tcpt, p 12(25). In fact, SG did not change her answers: this, the prosecutor said, indicated that SG "was a very honest witness": Tcpt, p 12(40). 42Referring to the apparent consistency of her answers in cross-examination the prosecutor submitted, at some length, that SG came through "unscathed" which was "a difficult thing", given the length of the questioning: Tcpt, p 13(35)-(45). The prosecutor further stated (Tcpt, p 13(20)): "In the Crown's respectful submission to you it would be within your knowledge of children that well and truly exceeded her attention span, which is about 20 or 30 seconds. But in any event she said there, she did her best, she listened [to] those questions and she agreed with them because there isn't any dispute." 43These passages may be assessed together. Given the relative brevity of the trial, the prosecutor's address was somewhat prolix and, to an extent, argumentative. There is no doubt that the prosecutor was entitled to identify circumstances which tended to demonstrate the reliability and credibility of the complainants; that included a consideration of the statements made in the police interviews and the effectiveness or otherwise of the cross-examination. However, it was not appropriate for the prosecutor to purport to call in aid his own experience with children giving evidence in court to suggest that children were or were not generally truthful. Such statements were inappropriate for two reasons: first, the task of the jury was to consider, against their general experience, whether these particular complainants were telling the truth and were reliable in the evidence they gave for the purpose of the proceedings. The prosecutor's opinions were an irrelevant distraction. Secondly, and more significantly, by calling in aid the authority of his office, the first statement at least had a tendency to suggest that there was particular information, not within the knowledge or experience of the jury, suggesting that these complainants should be believed. To that extent, the remarks had a prejudicial tendency. 44As counsel for the applicant accepted, the early remarks by the prosecutor with respect to the credibility of children generally probably involved an attempt, inept, unnecessary and inappropriate, to reflect the policy underlying s 165A of the Evidence Act 1995 (NSW) which prohibits a judge from warning the jury that "children as a class are unreliable witnesses" or that the evidence of children as a class is "inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults". For a prosecutor to wander into this territory without careful forethought risks putting the trial judge in the awkward position of needing to correct any inappropriate or distracting statement, without contravening s 165A(1). 45Further, in commenting on the police interviewing technique and upon the cross-examination, he was implying that the "system" was unfair to child witnesses and the fact that their evidence was apparently unshaken was a stronger indication of their truthfulness and reliability than might otherwise have been the case. Again, it may be accepted that these statements had a prejudicial tendency, but it is difficult to treat them as significant. Whether the jury would have made anything at all of the proposition that the attention span of a nine year old was about "20 or 30 seconds" may be doubted. 46Two other passages were the subject of challenge, but on a rather different basis. Thus, the prosecutor spent several sentences noting that children, because of their youth and lack of experience, were naïve. This passage culminated with the proposition that "[g]ood children who believe what we tell them need to be watched and protected because they are so vulnerable, because they are so naïve, because of their inexperience": Tcpt, p 4(30). 47On one view, this was an irrelevant flourish and an example of ill-discipline. As counsel for the applicant correctly submitted, "there was no issue that children should be cared for and not be sexually abused." He went further, however, suggesting that the remarks "had a tendency to arouse prejudice on the part of the jury and deflect them from their true task." Again, it may be accepted that the potential for such an effect was present; it was unrealistic, however, to think that, in the course of days of evidence and directions, this irrelevancy could have had any material effect. That is not to condone the impropriety of the remarks. 48Finally, the applicant complained of a passage directed not so much to the evidence of the complainants, as that of the applicant. However, the remarks were made in the context of the unqualified evidence of the complainants that when he licked SG's genitals, he was kneeling. The prosecutor stated (Tcpt, p 10(25)): "The accused said why he couldn't kneel. It is a matter for you. Can't get down on his knees for his own sexual gratification when on the Crown case he has a few wines, it is a matter for you. Whether that helps him or not because it is a worry when people and [sic] come and say things are impossible when you might not be at all convinced that they are impossible. It is a matter for you what you make of that." 49This passage involved a digression in the course of the prosecutor's address: at no point did he return to the specific evidence of the accused that his back injury prevented him from kneeling. The passage is inarticulate: what it was intended to convey is unclear. The applicant submitted that the jury was being invited to convict on the basis of a lie told by the applicant and indeed to use it as an admission without being satisfied that it was a lie, but rather if not satisfied that the statement was true. That approach, it was submitted, would have been inconsistent with the correct approach to the use of lies by an accused person, as discussed in Edwards v The Queen [1993] HCA 63; 178 CLR 193. 50It would undoubtedly have been better if this confusing passage had been left out of the prosecutor's address. Nevertheless, this was not the judge's direction to the jury and it is by no means clear that the jury would have understood it in the way proposed by counsel for the applicant. No doubt it was capable of being misunderstood, but that would be insufficient to demonstrate a miscarriage of justice. 51The first and last passages complained of provided the strongest basis for an allegation of miscarriage based upon the prosecutor's address. However, when the address is read as a whole, in the context of the trial as a whole, it is not possible to conclude that there was any realistic possibility of prejudice arising from these statements. It was not insignificant that the trial judge did stop the prosecutor at one stage, when he rambled too far from the facts of the case, although in a context which, as the applicant conceded, was not prejudicial. Further, counsel for the applicant at trial made no complaint of the prosecutor's address in respect of any of the passages referred to in this Court. In these circumstances, the challenge based on the prosecutor's address must be rejected.

Failure of counsel for the accused to lead medical evidence 52It is convenient to deal at this stage with the additional ground (ground 5) which contended that there had been a miscarriage resulting from the absence of available medical evidence to support the accused's statement that his back injury prevented him from kneeling, in the fashion described by the complainants. 53In support of this ground, the applicant sought to read an affidavit of his instructing solicitor and an affidavit of trial counsel, Mr Roser. The solicitor's affidavit may be dealt with briefly. In October 2013 (after the trial), he obtained an opinion from Dr Patrick, general and vascular surgeon, as to the applicant's disabilities arising from disc deterioration in his lumbar spine. Dr Patrick did not examine the applicant, but was provided with X-ray and CT images, and radiologists' reports. He noted that for two years prior to October 2012 the applicant "was suffering from a number of conditions including chronic low back pain (for which he was medically retired due to a L3 (actually L4/5 - WP) disc prolapse)": Report, 16 October 2013, p 3.9. He also suffered from other conditions, including osteoarthritis of the knees and hips and morbid obesity. Dr Patrick's opinion was, relevantly, as follows: "Following perusal of all this material, I am not in a position to make dogmatic comment, but I do believe that on balance of probability it is likely that at the time of the alleged offenses (December 2010) that Mr Christopher Lyndon would have found it difficult at the least to get into a kneeling position on the floor at the front of a large couch. Getting himself into such a position cannot I believe be said to have been impossible for him but it is likely that such movements would not have been able to be carried out readily or quickly, and it is likely that he would have needed to be able to use his arms as well to support himself either on some part of the couch or adjacent stable furniture in order to lower himself to the floor. As well as his significant back problem with sciatica he apparently was also suffering from significant osteoarthritic change at hips and knees. It is likely that he would have had difficulty maintaining such position for more than a brief period." 54Counsel's affidavit acknowledged that he was aware that the applicant suffered a serious back problem prior to trial, that he had discussed with his solicitor the possibility of obtaining medical evidence and concluded that it was not readily available. He said that he did not consider engaging a suitable expert to provide medical evidence at trial as he believed that the jury would have realised from the applicant's appearance that he was physically incapacitated. Finally, he stated that he "did not make a deliberate forensic decision that it was in the appellant's best interests to not call evidence of this kind at the trial." Such statements are intended to deflect the criticism that an appeal is brought on a basis deliberately eschewed at trial. 55The admissibility of such evidence may be doubted: as stated by Gaudron J (Gummow and Hayne JJ agreeing) in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [27] in considering whether decisions taken by counsel might contribute to a miscarriage of justice: "One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis." 56On this authority, counsel's affidavit was inadmissible, because irrelevant. To the extent that it might be considered relevant, it confirmed that which could readily be identified from a general understanding of the case, namely that medical evidence was considered but not called on an entirely rational basis, namely that it was unnecessary: see TKWJ at [16] (Gleeson CJ). Indeed, had counsel had available to him at trial Dr Patrick's later report, it is by no means certain that he would have sought to rely upon it. The report did not support the applicant's evidence that it would have been "impossible" for him to kneel, merely stating that he would probably have "found it difficult" to get into a kneeling position. The opinions were highly qualified. 57This material provides no adequate basis for considering that the trial miscarried through the incompetence of counsel in failing to call medical evidence with respect to the applicant's back condition. Ground 5 must be rejected.

Tendency evidence: failure to give direction 58Ground 3 alleged that the trial judge should have directed the jury that they could not use the evidence of acts alleged against one complainant as "tendency evidence" with respect to the acts against the other complainant. The principle underlying this proposition was that such evidence must constitute "tendency evidence", that is that such conduct indicated that the applicant had a tendency to act in a particular way, from which it may be inferred that he did act as the complainant alleged. The tendency rule requires that the prosecution give notice to the accused of its intention to adduce such evidence and that the Court be satisfied that the evidence has significant probative value: Evidence Act, s 97(1). As explained by Anderson, Williams and Clegg, The New Law of Evidence (LexisNexis, 2nd ed, 2009) at 361: "The inferential reasoning processes for tendency and coincidence evidence are dangerous because they permit a person to be judged by his or her conduct on other occasions rather than by evidence directly or indirectly focused on the subject event." 59The prosecution did not seek to rely upon the conduct of the applicant with respect to SG to establish the offences committed against TG, or vice versa. However, relying upon a passage from the judgment of McHugh J in KRM v The Queen [2001] HCA 11; 206 CLR 221 at [38], the applicant submitted that where multiple counts involving similar offences, but different victims, were heard together, "a propensity warning will almost certainly be required." 60This remark is of little assistance in the present case. First, KRM involved a particular statutory charge of "maintaining a sexual relationship with a child under the age of 16" and separate counts relating to specific offences, albeit with the same victim. Secondly, the proposition should be read in context. The passage at [38] commenced, "[i]n some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts". Further, at [39] McHugh J stated: "In some cases, giving the warning may excite the very prejudice that it purports to eliminate. And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required." 61Thirdly, other members of the Court expressed views as to the need for a "warning" in different language. Fourthly, the Court was dealing not only with a statutory offence under Victorian legislation, but with the common law, absent the Evidence Act. 62As explained by RA Hulme J in Jiang v R [2010] NSWCCA 277 at [33], there are "three types of warnings often given to juries in relation to uncharged acts in a sexual assault trial (substitution of evidence of other acts for evidence of the offences charged, that the accused had a tendency to commit offences of the type charged, and reasoning that because the accused committed the uncharged act he/she committed the offence(s) charged)." 63Jiang shared with the present case the characteristic that the offences charged all occurred within a matter of minutes. (The allegations involved three acts which occurred during the course of a massage and overstepped the legitimate boundaries, thus constituting sexual assaults.) The Court in Jiang accepted that the need for a warning depended upon "whether there was a significant risk that the jury might have embarked on impermissible tendency reasoning having regard to the evidence placed before it and the arguments of counsel": Toalepai v R [2009] NSWCCA 270 at [49] (Howie J); Jiang at [44]. 64The reason why, in the present case, the absence of a warning was said to have led to a miscarriage was that had the evidence of one complainant been capable of use as tendency evidence in respect of the other, the jury should have been told that they could not so use evidence as to the conduct on one count as supporting the allegations with respect to another count unless they were satisfied beyond reasonable doubt as to the evidence on the first count. 65This was not a case in which the jury was likely to reason impermissibly on the basis of a tendency to act in a particular way. The important warning, which was given on more than one occasion, was that each offence should be considered separately and the jury be satisfied beyond reasonable doubt as to the allegation in each case. That this was how the evidence was presented, and how counsel dealt with the evidence in their addresses, as well as the manner in which the trial judge dealt with it in summing up, is confirmed by the verdicts. It may be inferred that TG's original denial that the applicant had done anything bad to her, together with the absence of evidence from SG that she saw any untoward conduct with respect to TG, formed the rational basis for rejecting the counts with respect to TG. Similarly, the absence of suggestion by TG that the applicant had touched SG on the chest provided a rational basis for rejecting that count with respect to SG. By contrast, with respect to allegations as to the applicant's conduct against SG on which the jury convicted, there was support in the evidence of both SG and TG. 66No objection was raised to the failure to give a warning as to tendency evidence at any stage in the course of the trial. Accordingly, the ground cannot be relied upon without leave: Criminal Appeal Rules, r 4. The failure to request such a warning is consistent with the inference drawn above, namely that no party in the course of the trial thought that such a warning was necessary. Leave to rely upon ground 3 should be refused.

Unreasonable verdict: ground 4 67Finally, the applicant relied upon there being a miscarriage on the basis that the verdicts were unreasonable and could not be supported by the evidence. The applicant accepted that there was a logical basis (discussed above) on which the verdicts of guilt and acquittal could be explained. However, the applicant maintained that the consistency between the verdicts involved the proposition that neither SG's evidence alone, nor that of TG alone, was sufficient to support satisfaction beyond reasonable doubt. That proposition may be accepted: however, the further proposition that the evidence of each was "so unreliable" as not to provide support for the counts to which it related is not maintainable. As explained in the joint reasons of Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [34], failure to accept the evidence of the complainant, in the face of denial by the accused, without other supporting evidence, may involve neither rejection of the complainant's evidence nor acceptance of the accused's evidence. 68In apparent support of the claim that the evidence of SG, which was essential to a finding of guilt, was "highly unreliable", reference was made to the fact that no complaint was made until the following day and that, in the interval, the complainants were together and "there was clearly opportunity for concoction." 69There were, however, two difficulties with that submission. First, the possibility of concoction was not raised when it should have been, in cross-examining the complainants. Inevitably in that circumstance, it was not put to the jury. The second difficulty, of which the first is a reflection, is that the defence had no plausible explanation as to why the girls would have concocted the complaints. They had never met the applicant before the afternoon in question; he was clearly supportive of their grandmother for whom they had undisputed affection; they were happy playing hide and seek with him at their grandmother's home shortly before the events which formed the charges and, although there was delay in complaining, the first complaint was made when it was suggested that the girls go out with the applicant again, on the following afternoon. 70A consideration of the evidence of each complainant and the applicant was a matter for the jury. The significance of the evidence has been sufficiently discussed above to demonstrate that the prosecution case provided a basis for conviction, at least with respect to the counts upon which the jury convicted. The verdicts were neither unreasonable nor unsupportable on the evidence. Ground 4 has not been made out.

Conclusion 71In these circumstances, leave to appeal should be refused with respect to ground 3, pursuant to the Criminal Appeal Rules, r 4. Ground 2 was abandoned. Leave to appeal should be granted pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of grounds 1, 4 and 5. The appeal should be dismissed. 72BUTTON J: I agree with Basten JA. On my own assessment of the evidence, the verdicts are not unreasonable or unable to be supported. 73RS HULME AJ: I agree with the orders proposed by Basten JA and, subject to one matter with his Honour's reasons. 74I do not go as far as his Honour in concluding that "it is not possible to conclude that there was any realistic possibility of prejudice arising from" the Prosecutor's statements that were the subject of the First Ground of the Appeal. 75The statements were grossly improper. They were calculated to put before the jury what in practical terms amounted to further evidence and the irrelevant and inadmissible Prosecutor's opinion. See also KNP v Regina [2006] NSWCCA 213; (2006) 67 NSWLR 227. 76And there were further inappropriate remarks by the prosecutor that are not the subject of appeal. Time after time the Crown prosecutor addressed the jury in terms, "The Crown says ...", an expression significantly stronger in its import than the language of submission or suggestion which is the appropriate form an address should take. 77However, that exception was not taken at the trial by counsel then appearing for the Applicant tends to suggest that in the overall context of the Prosecutor's address the statements did not loom large. Consideration of the printed transcript confirms that conclusion. In the result despite my view as to the possibility of prejudice, I am satisfied that in fact there was no miscarriage of justice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2014