Packard (a Pseudonym) v The Queen [2018] VSCA 45

CRIMINAL LAW - Appeal - Conviction - Incest - Prosecutor opened that the appellant had 'raped' the complainant - Repeated references to rape (and derivatives) by prosecutor and judge - Whether unfair trial resulted.

CRIMINAL LAW - Appeal - Conviction - Incest - Complainant's VARE (Video and audio recorded evidence) - Whether judge misdirected the jury on use - Whether judge's directions impermissibly bolstered complainant's credibility.

CRIMINAL LAW - Appeal - Conviction - Incest - Judge's intervention during cross-examination of complainant - Whether judge's intervention diminished availability of alibi - Whether unfair trial resulted.

1 On 9 March 2016, a jury empanelled in the County Court found the applicant guilty of five charges of incest (charges 1 to 5),[2] perpetrated against his step-daughter, 'IAC'.[3]

2 The applicant seeks leave to appeal against his conviction on four grounds, formulated as follows:

1. The following tendency evidence was wrongly admitted or directed on for that purpose or both:

1. The complainant's account of uncharged acts (C.5 on tendency notice); 2. The complainant's account of a conversation in which the she [sic.] alleged the accused wanted to rape her (B.6 on tendency notice);

1. The complainant's mother's account, and the complainant's account of the applicant's conduct towards the complainant in the applicant's bed (B.2 on tendency notice);

1. The dacking evidence [B.5 on tendency notice]; 2. The complainant's account of Charges 1-5 (C.1-4 on tendency notice).
2. The use of the word 'rape' persistently at key times in the trial by the Trial Judge and the Prosecutor created a prejudice to the Applicant which resulted in an unfair trial.
3. The judge's directions on the complainant's VARE unfairly bolstered her credibility.
4. By the trial judge entering the arena to direct defence counsel's cross-examination, the applicant was deprived of an alibi.

3 For the reasons that follow, grounds 1 and 2 should succeed. I would grant leave to appeal on those grounds, allow the appeal and make consequential orders.

4 The applicant commenced living with 'SG', the complainant's mother, in 2008. SG had two children from a previous relationship, IAC and RJC. RJC was younger than the complainant.[4] The applicant and SG had two children together, MS[5] and KS.[6] SG and the applicant married in late 2012.

5 It appears that the applicant's alleged offending came to light as a result of disclosures made by IAC to her friends, 'EG' and 'IT'. EG related that, during a reading class, IAC passed her a note which said, 'I'm not a virgin'. She then passed IAC's note to their mutual friend, IT. According to IT, IAC had written on a 'sticky note', 'I was raped'. On IT's version, in discussion with her and EG at lunchtime that same day, IAC said that 'she was raped by her stepdad', and 'she said she was raped once in her dad's bedroom and she said he touched her in her ... private parts'. The complainant also claimed that she had taken a pregnancy test and was pregnant, but that she was taking pills to terminate the pregnancy. Later that day, the complainant also told 'JG', another boy at school, that she had been 'sexually assaulted'. After the school holidays, IAC told her friends that she had lied. IT said that 'she told us that she was lying about a few things, and that she was only raped once in her dad's bedroom, and that she didn't take the pregnancy test and she didn't take the pills'.

6 Although IAC did not want the matter reported, two other children who had become apprised of the allegations reported them to the school. In turn, on 7 October 2014, the complainant's mother and police were notified.

7 As I have said, the applicant faced five charges of incest. In opening the case to the jury, however, the prosecutor - without demur from the trial judge or defence counsel - characterised each act of penetration as 'rape', and several times stated that the applicant had 'raped' the complainant.[7] Thus, towards the beginning of her opening she said:

[IAC] alleges that over the period of around nine months from December 2013 to September 2014 her stepfather, the accused, raped her five times; twice digitally and then raped her vaginally and anally. ...

8 It should be noted that the 'rape' theme had been flagged in the written Prosecution Opening - available in advance of the trial to defence counsel and judge alike - albeit that, unlike the oral opening, which suggested that the alleged digital penetrations also constituted rape, the written opening did not make clear whether the digital penetrations were to be so classified. Thus, the first sentence of the revised Prosecution Opening was:

The accused man is the step father of the complainant in this matter, who alleges that she was the [sic.] vaginally and anally raped by him over a period of time extending between August and September 2014.

9 IAC gave evidence at a special hearing.[8] Her evidence-in-chief consisted largely of two pre-recorded interviews with police - VAREs[9] - conducted on 7 October 2014 and 24 July 2015.[10] The prosecutor also took IAC through a number of text messages[11] passing between her and the applicant - whom she called 'Dad' - between 8 March 2014 and 29 September 2014.

10 IAC was aged 12 years when the alleged offending occurred.[12] Throughout the VAREs, IAC said that the applicant had 'raped' her. IAC described the incidents founding charge 3 (penile-vaginal penetration), and charges 4 and 5 (penile-anal and penile-vaginal penetration respectively), in the first VARE on 7 October 2014. The events founding charges 1 and 2 (both being digital-vaginal penetration) were described in the second VARE on 24 July 2015.

11 It is necessary to summarise IAC's description of the offending as set out in the two VAREs. Before doing so, however, in view of ground 2, it is convenient at this point to pause briefly so as to note some of the portions of IAC's two VAREs where she used the term 'raped' (or derivative expressions):

• ... I had this athletics day and it was 22nd of August and he - that's when he first - the first time he raped me and I've told him to stop and stuff.
• ... I was talking about school and then he - he stopped his game and he came over and - and, yeah, and he raped me. And then I was telling him - I didn't understand because that's never happened to me before and I don't know what it feels like.
• And so he locked my wrists together and I couldn't move because he squeezed really hard and then he pulled me towards him and he took all my clothes off and then he - he was lying on me. And then he - and then he - he was, like, he was - he started raping me.
• Q. O.K. You said that he was then raping you. What does that mean?

A. Forcing someone to have sex.

Q. O.K. And tell me how he did that.

1. He - well, he didn't really force me to because I couldn't do anything. He just locked me in a position where I couldn't move and then he - he just had - did, yeah.

Q. ... So you said that he was raping you. Tell me exactly how he did that?

1. He, like, put his hands around mine and he pushed me onto the bed so I had my arms up like this and my knees were spread apart. ... And then he - he was, like, on me but sort of not on me. ... And then he just started pushing me really hard and he was breathing very deeply.

Q. You said about sex. What sort of sex was that?

A. Vaginal.

...

1. O.K. And then what was next?
2. And then he - he went on his - on his knees I think. I don't know. He was, like, yeah, he was on his knees and he, yeah. ... He started raping me.

• Q. O.K. Is there any other times that he's made you feel uncomfortable about what he's said?
  1. That he sometimes if - sometimes that he really would rape me if he could, if he would be able to he would rape me.
  2. He would what?
  3. He would rape me. ... Or something like that. I can't remember what. He was like, 'You're so beautiful I could rape you', or something like that. ... And then he said - it was something like, 'And you're so beautiful I could rape you', or something like that.
• He calls me bunny because I was [sic.] these massive teeth and he says that I'm really cute and stuff like that. And I had this Little Bo Peep costume and it doesn't fit me any more but it - apparently I looked adorable in it and he said then that he - he could rape me then. He would rape me then if - and not to go out on the street like that 'cause other guys would kidnap me and rape me there'.

• Q. ... So can you tell me the last time he used his finger?
  1. The first time I got raped. So, like, when he first sexually assaulted me, that's, like, the last time he did it.

Charge 1: 1 December to 31 December 2013 - Digital penetration of the complainant's vagina (Second VARE: 24 July 2015)

12 In December 2013, 'around Christmas time', IAC entered the applicant's bedroom, where 'he was playing a game on his computer'. IAC was reading. The applicant sat down next to her and watched her read, then took the book from her. IAC asked the applicant to return the book. Once he did so, he asked IAC to read it aloud for him. The applicant then took the book from her again, and IAC 'started wrestling with him to get it back'. He then took IAC's clothes off, had one of his hands 'wrapped around [her] wrists' and 'locked [her] wrists together', 'started putting [her] knees apart' and 'started putting his finger up [her] vagina'. IAC told the applicant to stop and 'kept thrashing around' but the applicant was 'really strong'. After IAC 'gave up', the applicant asked, 'Why did you give up?', and said: 'I wanted you to tell me to stop. I was trying to get a reaction out of you'. The applicant also said: 'You shouldn't let people do that to you. That was just a test to see if you would tell me to stop or if you would keep fighting'.

Charge 2: 1 May to 31 May 2014 - Digital penetration of the complainant's vagina (Second VARE: 24 July 2015)

13 In May 2014, the applicant 'walked in on' IAC while she was getting changed in the bathroom. He washed his hands and then 'grabbed the towel off [her]'. She started yelling, and the applicant then 'put [her] down on the floor'. IAC tried to get up, but the applicant put his foot on her stomach holding her down, grabbed her knees and 'opened them up' and started 'putting his finger up [her] vagina'. She started kicking and trying to scratch the applicant, who then stopped. The applicant told IAC that 'he was proud of [her] for fighting him and he said he wouldn't do that again'.

Charge 3: 1 August to 31 August 2014 - Penile penetration of the complainant's vagina (First VARE: 7 October 2014)

14 On 22 August 2014, there was an athletics day at IAC's school. One afternoon, a 'few weeks before athletics day', IAC was sitting on the bed in the applicant's room watching him play a computer game. The applicant wrapped himself in a blanket, then 'started pulling off [her] clothes and stuff'. The applicant locked IAC's wrists together so that she could not move, took off all her clothes and 'was just lying on [her]'. IAC was on her back, with her 'arms up' and her knees 'spread apart'. The applicant then put his penis in her vagina, and 'he hurt [her] really badly'. IAC pulled the applicant's hair, and 'started scratching him and biting him' on his arms, causing a bruise from her bite and scratches to his arm near the elbow. After IAC 'wriggled free' and told the applicant to stop, he said, 'Okay, I will stop'. The applicant then told IAC to have a shower, and said, 'we shouldn't have done that ... Promise me you won't go in my room again'.

Charges 4 and 5: 1 September to 31 September 2013 - Penile penetration of the complainant's anus and vagina (First VARE: 7 October 2014)

15 One afternoon 'around September' 2014 - 'it would have been Sunday' - IAC was again in the applicant's bedroom sitting on the corner of the bed. The applicant 'just lay down beside [her]' and they were talking. He first 'started wrestling with [her]' and then 'started taking off [her] clothes'. The applicant pushed IAC fully naked over the head of a chair, with her knees on the bed, and was 'humping [her] from behind'. He pushed her shoulders down so that she could not move. The applicant's penis was going up the 'hole' in her 'bum cheeks' (charge 4). IAC was saying, 'stop, stop'. The applicant then stopped. He then laid IAC down on the bed on her back, 'pushed [her] knees apart' and 'put his penis inside [her] vagina' (charge 5). IAC 'was trying to kick him' and was 'thrashing [her] upper body around'. She yelled, 'stop, stop', and said, 'Stop, dad, I don't like it'.

16 IAC described other occasions - which were 'pretty much all the same' - when the applicant took off her clothes. It happened, she said, 'at least, like, 30 times'. She said the applicant would give her lots of kisses and start taking off her clothes whilst kissing her. There were no particular occasions that she recalled, but the applicant penetrated her with his finger at least 30 times.

17 As I have mentioned,[13] IAC complained to her friends, EG, IT and JG. I need not repeat that evidence.

18 SG, the complainant's mother, also gave evidence. She said that she had met the applicant in 2004. When they met, she had two children from a previous relationship, IAC and RJC. She and the applicant have since had two children together, MS and KS. She had seen IAC 'dacked' by the applicant on occasions: 'So he would pull her pants down and take them off and run off with them'. SG told the applicant that was 'not appropriate for that sort of play', because IAC 'was getting too old for that sort of stuff'. On another occasion, she heard the applicant say to IAC, 'You're sexy [IAC]'. SG then said, 'That's not an appropriate thing or appropriate way that a father talks to his daughter'. And there were other times, 'before [IAC] even developed', that the applicant would say that 'she would grow up to be very beautiful and very attractive and very sexy' and 'that sort of stuff'.

19 SG's evidence also related to something that the applicant had told her. She described it as follows:

... he said he freaked her out and I asked him what did he mean, and he then said that he made her feel uncomfortable. 'Well, what do you mean?' I go, 'What did you do?', and he said that he stripped her to her undies and then he tried to separate her knees - and, 'What did she do?' He said that she looked concerned and worried, and then ... he said he was trying to make her say, 'No', that she didn't like that, and that she felt uncomfortable, and then I said to him, 'Well did she say that?', and then he said, 'Yes, she did', and then he - I go, well, then, 'Don't do that again'. Yes, that kind of - that freaked me out as well.

[PROSECUTOR]: [SG], do you recall a specific time in early 2014 when [IAC] was in [the applicant's] bedroom and you went to the door?---Yes.

What did you see when you went in?---[IAC] was in between his legs and he was rubbing the side of her body up to her hands, and her hands were over her head.

...

Did they have clothes on?---Yes. Yes. There was clothes.

What did you say when you saw this?---I was - I didn't say anything straightaway. I just stood there and glared at them, like, I wanted to kill them.

...

[PROSECUTOR]: Sorry. Go on?---The door was opened and I stood there and watched what was going on before they noticed me.

And when they noticed you, what did [the applicant] do?---[He] jumped up and [IAC] sat up and I said to them, I go, 'That's not right. That's not something that fatherly daughterly stuff. That's - no'.

Is that what you said?---Something along those lines, yes, and I got freaked out and I walked off.

21 Tendency evidence - that is, evidence of the character, reputation or conduct of the accused - is adduced in a criminal trial to prove to the jury that the accused has a tendency to act in a particular way or have a particular state of mind. A proven tendency may then be used by the tribunal of fact to predict - or 'postdict'[14] - the actions or state of mind of the accused on the occasion or occasions in issue in the trial. As Gageler J observed in Hughes:[15]

Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.

22 Tendency reasoning seems to be underpinned by the notion that human behaviour occurs in patterns, and contemplates that because a person has acted in a particular way (or had a particular state of mind) in the past, he or she on other occasions will act in a particular way (or possess a particular state of mind).[16]

The tendency notice and the evidence admitted at trial

23 Pursuant to s 97(1) of the Evidence Act 2008, the prosecution filed a notice that it intended to adduce tendency evidence. The tendency sought to be proven was that of the applicant 'to act in a particular way or have a particular state of mind towards [IAC]', namely 'to have a sexual interest in [IAC] a prepubescent female child' (the particulars of such evidence of sexual interest being set out in items B.1 to B.6 of Table B in the notice) and 'a willingness to act on that sexual interest in respect of [IAC]' (the particulars of such evidence of a willingness to act on that sexual interest being set out in items C.1 to C.5 in Table C of the notice).

24 Following the special hearing, the judge ruled that the items B.1, B.2 and B.4 in Table B were inadmissible, but that 'the evidence referred to in Table B, at B.3, B.5, B.6 and Table C at C.5 are admissible as tendency evidence reaching the threshold of significant probative value, in establishing the sexual interest of the accused in [IAC] and a willingness to act on that sexual interest in respect of [IAC], as alleged in Charges 1-5'. The evidence excluded was:

• first, B.1, 'Calendar entries from the [applicant's] phone which contain entries by him to "Stay away from [IAC]"';

• secondly, B.2, observations by SG of seeing the applicant sitting on IAC in his bedroom (although, as will be seen, this evidence was later admitted); and

• thirdly, B.4, observations by RJC that she often saw the applicant and IAC in the applicant's bedroom under a blanket, with IAC's legs sticking out from underneath him.

25 The first ground challenges the admissibility of various pieces of evidence admitted as tendency evidence. Thus:

• ground 1(a) impugns the admissibility of the uncharged acts in item C.5 of Table C;

• ground 1(b) relates to item B.6 in Table B, IAC's account of a conversation in which she alleged the applicant wanted to rape her;

• ground 1(c) refers to item B.2 in Table B - SG's observations of seeing the applicant sitting on IAC in his bedroom - which was initially ruled inadmissible (but which the judge later permitted the prosecution to rely upon);[17]

• ground 1(d) refers to item B.5 in Table B, referred to throughout the trial as the 'dacking evidence'; and

• ground 1(e) concerns items C.1 to C.4 of Table C, being the admissibility of IAC's account of each of the charged acts in proof one of the other.

26 With respect to the 'dacking evidence', ground 1(d), it is to be noted that, prior to the special hearing, there was a discussion between the judge and counsel concerning the admissibility of the tendency evidence set out in the notice. The judge expressed some doubts about the admissibility of the evidence in item B.5, which was to the effect that the applicant 'engaged in the practice of "dacking" in which he pulled down [IAC's] underwear'. Her Honour made no formal ruling at that juncture, but gave indications that the evidence would not be admitted. In her formal ruling, made after IAC's cross-examination on the special hearing, however, the judge expressed the view that although initially she had 'determined this evidence did not show a sexual interest' in IAC, by reason of his questioning of IAC on the special hearing, defence counsel had 're-enlivened' the issue of 'dacking'.

27 Under cover of ground 1(a), concerning item C.5, IAC's allegations that the applicant had taken her clothes off and kissed her, and digitally penetrated her on occasions other than those charged, the applicant's counsel submitted that none of these allegations were supported by external evidence, and none had any special feature. The evidence, therefore, did not possess 'significant probative value' and was thus not admissible to prove that the applicant had a sexual interest in the complainant upon which he was willing to act.

28 As to ground 1(b), item B.6, the tendency notice specified that the applicant 'would tell the complainant that she was sexy [and] also told her she looked so beautiful he could rape her'. Counsel submitted that the conversation was not supported by external evidence, and had no special feature. The evidence did not reach the threshold of 'significant probative value' and therefore was not admissible to prove that the applicant had a sexual interest in the complainant upon which he was willing to act.

29 Ground 1(c) relates to item B.2, SG's evidence of seeing the applicant sitting on IAC in his bedroom. Initially, the judge had ruled that these observations were inadmissible as tendency evidence on the basis that the evidence 'does not have significant probative value'. As a result, however, of certain cross-examination of the complainant - which, counsel submitted in this Court, had 'no conceivable forensic purpose' - the judge revised her ruling. Her Honour thus ruled that the evidence of both the complainant and SG concerning this event was now admissible as tendency evidence, although, so it was submitted, the judge did not articulate how SG's evidence became admissible as a result of the cross-examination.[18]

30 With respect to ground 1(d), relating to the 'dacking' evidence, item B.5, initially, as I have mentioned, the judge indicated that this evidence was inadmissible to show tendency, 'subject however to any cross-examination of [IAC] by [defence counsel]'. Notwithstanding the judge's implied warning, however, the applicant's trial counsel - who was not counsel in this Court - cross-examined IAC so as to 're-enliven' the issue. There was, counsel submitted in support of this ground, 'no conceivable forensic purpose in doing so'.[19]

31 Finally, ground 1(e), relating to items C.1 to C.4, concerned the judge's directions that it was open to the jury to reason from each of the charged incidents that the applicant had a sexual interest in the complainant upon which he was willing to act. It was submitted that the evidence was not admissible for tendency purposes. None of the charged allegations were supported by external evidence. It was submitted that the mere fact that the allegations were charged did not imbue the accounts with any special feature such that they have any more than limited, if any, capacity to rationally affect the probability that the complainant's other accounts are true. There was, so it was submitted, no other special feature in the charged allegations. Applying the principles in IMM[20] to this case, the prosecution ought not to have been allowed to rely on this material so as to support tendency reasoning.

The judge's directions concerning the use of the evidence

32 Before turning to issues of admissibility, it is convenient to set out some of the judge's directions, in which she identified the purported tendency evidence and instructed the jury on its use.

33 As earlier indicated, IAC gave evidence at a special hearing. Immediately after the playing of that pre-recorded evidence to the jury concluded, the trial judge gave directions to the jury[21] concerning evidence of 'sexual interest':[22]

Basically, part of the prosecution case in this trial is that [the applicant] has demonstrated a sexual interest in [IAC] and a willingness to act on that interest. Now, in this direction, I am referring to the evidence of [IAC] in which she said that the [applicant], on occasions other than those in charges 1 and 2, put his finger or fingers in her vagina and other occasions when he would undress and kiss her.[[23]] The prosecution also relies upon one occasion when the [applicant] dacked [IAC], two times on that occasion, removing her underwear in the dacking.[[24]]

The prosecution also relies upon what the prosecution submits involves talking to [IAC] in a sexualised manner and sending her messages showing sexual interest in her by the [applicant].[[25]] The prosecution argues that this evidence of the words and the conduct that I have just outlined of the [applicant] demonstrates that, as [IAC] approached puberty, the [applicant] had the tendency to think of [IAC] in a sexual manner and to treat her like a girlfriend, to act like a jealous boyfriend, that he expressed his attraction to her and he wanted to marry her and to rape her.

The prosecution argues that he acted on this sexual interest in repeating stripping and kissing her from age 11 and repeatedly penetrating her, digitally, finger. All right? The defence, in response to this argument or this line of reasoning that the prosecution urges, says that any sexual interest and any willingness to act on that sexual interest in [IAC] by the [applicant] is denied; that [the applicant], the defence say, never thought of [IAC] or treated her in a sexual manner.

The text messages, the defence say, were part of the normal day-to-day ongoing relationship in the family and does not reflect sexual interest. Further, on these points, the defence says that calling himself boyfriend or her girlfriend, or saying he wants to marry her was part of just ongoing normal conversation, or a joke.

The defence says he never said that he had a desire to rape her; that the dacking was something that happened in the family as a joke and that, even if her underwear came off, it was not any sexual interest in her. The defence position is that there was no repeated stripping of [IAC] or kissing her, and there is a denial that he repeatedly digitally penetrated her. The Crown relies on this; the defence position is as I have just outlined.

Now I am going to my direction of law on this particular point. If you find that [the applicant] had a sexual interest in [IAC] and was willing to act on that interest, then you can use that to find that it is more likely he committed the offences of incest in charges 1 through to 5 on the indictment. The prosecution also says that this evidence of these other things - not charges 1 to 5, they are specific allegations, but these other things that I have just described - the prosecution also says that that evidence of these other things sets the scene in which the alleged offences in charges 1 to 5 took place.

Without that evidence, there is a risk that [IAC's] evidence would be incomplete and may even be incomprehensible. It may help you to understand the circumstances of the alleged offending in charges 1 through to 5, such as to show that [IAC] does not say that those offences in 1 to 5 just happened out of the blue. You must keep this evidence in perspective. It is only one part of the prosecution case and, as I have told you, you must not decide the case on the basis of feelings, or prejudice, because of what you learn about the [applicant].

That evidence of these other acts, these sexualised - or that the Crown argue is part of this sexualised interest, or sexual interest - has been led for a limited purpose of helping you understand the circumstances surrounding the alleged offending in charges 1 to 5 and to show that the [applicant] had a sexual interest in [IAC] and a willingness to act on that interest and so is more likely to have committed the offences in charge 1 to 5 on the indictment. You must not use that evidence for any other purpose.

34 It will be noted from these directions that the judge directed the jury that they could use the following three aspects of evidence to reason that the applicant had a sexual interest in the complainant and a willingness to act on that interest:

• occasions other than those in charges 1 and 2, when the applicant put his finger or fingers into IAC's vagina, and other occasions when he would undress and kiss her;

• two occasions when the applicant 'dacked' the complainant, removing her underwear in the process; and

• occasions when the applicant talked to IAC in a sexualised manner and sent her text messages showing sexual interest in her.

The judge directed the jury that if they found that the applicant had a sexual interest in IAC and he was willing to act on that interest, then they could 'use that to find that it is more likely he committed the offences of incest in charges 1 through to 5 on the indictment'. But, in directions that are apt when evidence is introduced to provide context, and which were at odds with the main thrust of other parts of the directions, the judge also directed that they could use the evidence - other than the specific evidence relating to charges 1 to 5 - to '[set] the scene in which the alleged offences in charges 1 to 5 took place'. The trial judge instructed the jury that the 'evidence of these other acts' relating to sexual interest 'has been led for a limited purpose of helping you understand the circumstances surrounding the alleged offending in charges 1 to 5'. She directed the jury that the evidence might help them 'to understand the circumstances of the alleged offending in charges 1 through to 5, such as to show that [IAC] does not say that those offences in 1 to 5 just happened out of the blue'; and that, without the evidence, 'there is a risk that [IAC's] evidence would be incomplete and may even be incomprehensible'. The directions were thus an amalgam of those suitable with respect to evidence received as tendency evidence, and those suitable with respect to evidence admitted as context evidence.

35 The judge returned to the topic of 'sexual interest' in her charge to the jury:[26]

I will remind you of my earlier direction regarding that prosecution submission that the [applicant] has a sexual interest in [IAC] and a willingness to act upon it in a moment.

[Defence counsel] in brief says you cannot draw the inferences that the prosecution are urging upon you, and specifically, he says, regarding the alleged sexual interest in [IAC] the defence disputes the Crown assertions in that regard, denying there was any sexual offending as alleged in any of the charges 1 to 5 and no sexual interest.

At this point I am now going to remind you of the direction I gave you at the start on sexual interest, because this is a form of inferential reasoning relied upon by the prosecution and [defence counsel] says, no, you cannot do that. All right, now, so I am going to remind you of that direction, and this is the one that you effectively said can you have a copy of it, so I am going to remind you of it here and then I am, of course, willing to hear from you later on if you want, all right.

So as you know, part of the prosecution case is that [the applicant] has demonstrated a sexual interest in [IAC] and a willingness to act on that interest, and I am now referring to the evidence of [IAC], which I will briefly encompass in this summary at the moment, in which she said the [applicant] on occasions other than charges 1 and 2, put his finger or fingers in her vagina and her evidence that on other occasions he would undress her and kiss her.[[27]]

The prosecution also relies upon one occasion when the [applicant] dacked [IAC] two times on that occasion, removing her underwear in the dacking.[[28]] The prosecution also relies upon what the prosecution submits is him talking to [IAC] in a sexualised manner and sending her messages showing sexual interest in her by the [applicant]. The prosecution also relies upon the evidence of [SG], of her observation of the [applicant] and [IAC] in the [applicant's] bedroom when she was at the door.[[29]] Remember [SG] was at the door and saw him straddling [IAC], both were clothed she said and the [applicant] was rubbing [IAC's] torso up to her hands above her head. The prosecution also relies upon the conversation that the [applicant] had with [SG], in which he told her he had stripped [IAC] to her undies, tried to separate her knees, trying to make [IAC] say, no.[[30]]

The prosecution argues that this evidence singly and together of the words and the conduct of [the applicant] demonstrates that as [IAC] was approaching puberty he had a tendency to think of her in a sexual manner and to treat her like a girlfriend, to act like a jealous boyfriend, that he expressed his attraction to her, says the prosecution, wanting to marry her and to rape her.[[31]] That he acted on this sexual interest in repeatedly stripping and kissing her from age 11 and repeatedly penetrating her digitally, that means finger.[[32]] The prosecution submits that you can find on all the evidence that [the applicant] had a sexual interest in [IAC] and a willingness to act on that interest relevant to charges 1 to 5 on the indictment.

36 In these directions, the judge told the jury that the evidence that the applicant had a sexual interest in the complainant and a willingness to act on it involved 'a form of inferential reasoning relied upon by the prosecution'. They could use the evidence that '[the applicant] had a sexual interest in [IAC] and a willingness to act on that interest relevant to charges 1 to 5 on the indictment'. And together with the three aspects of evidence that she had left to the jury when first directing them,[33] she left two further pieces of evidence to the jury as being capable of supporting the form of inferential reasoning relied upon by the prosecution, being:

• first, SG's observation of the applicant straddling IAC when he was rubbing IAC's torso with her hands above her head; and

• secondly, the conversation between SG and the applicant, in which the applicant told SG that he had stripped IAC to her underwear, and attempted to separate her knees whilst trying to make her say 'no'.

37 At the risk of traversing now well-trodden ground, s 55(1) of the Evidence Act 2008 ('the Act') provides that 'evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. Section 56(1) provides that, save as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible; and s 56(2) provides that evidence that is not relevant is not admissible. Although 'fact in issue' is not defined, in a criminal trial facts in issue in the proceeding will be those that bear on the existence of the elements of the offence (or offences), behind which will be facts relevant to those facts in issue.[34] In the present case, the principal fact in issue on each charge was whether the alleged sexual penetration had taken place. To be relevant and admissible, therefore, evidence in the case needed to be capable of rationally affecting the assessment of the probability of whether the charged sexual penetration had occurred.

38 As earlier mentioned, the prosecution sought to rely on the tendency evidence set out in its notice, the alleged tendency being 'to act in a particular way or have a particular state of mind towards [IAC]'. The admissibility of tendency evidence is governed by s 97(1) of the Act, which establishes the 'tendency rule'. Section 97(1) provides:[35]

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 unless -

...

(b) the court thinks that the evidence will, 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.

39 The Dictionary to the Act defines the probative value of evidence as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. To be admissible, however, it is not sufficient that tendency evidence merely have probative value, since s 97(1)(b) provides as a threshold to admissibility that tendency evidence must possess significant probative value.[36] That high threshold of admissibility is further emphasised by s 101(2) of the Act, which provides that in a criminal case tendency evidence adduced by the prosecution cannot be used against an accused person unless its probative value 'substantially outweighs any prejudicial effect it may have'.

40 In Hughes, Gageler J described tendency reasoning as 'inductive' reasoning. Although his Honour's was a minority judgment, I do not think his observations on this aspect are diminished by that fact. At the risk of some repetition,[37] his Honour observed:[38]

... [I]t is necessary to be clear about the problem to which the tendency rule is directed. The problem arises from the cognitive process necessarily involved in using tendency evidence to assess the probability of the existence of a fact in issue. The cognitive process is that mapped out in the statement of the tendency rule itself. Tendency evidence - be it of character or reputation or of conduct other than an occasion in issue in a proceeding - is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind. The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to 'postdict'[39] the action or state of mind of the person on the occasion or occasions in issue in the proceeding. Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.

Tendency reasoning, as courts have long recognised, is not deductive logic. It is a form of inferential or inductive reasoning. What it involves is 'admeasuring the probability or improbability of the fact ... in issue ... given the fact or facts sought to be adduced in evidence'.[40] ...

41 The important distinction between tendency evidence and other evidence of sexual misconduct ('context' or 'relationship' evidence) is that tendency evidence is received in proof of the commission of the offence charged. Context evidence, on the other hand, is relevant only to the credibility of the complainant, in that his or her account of a particular event which is the basis of a charge 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. Tendency evidence, if accepted by a jury, makes it more likely that the accused committed the charged offence, because it permits inductive (or, perhaps, deductive) reasoning. By way of contrast, context evidence does not make a complainant's account more reliable than it would otherwise be, save insofar as it may generally assist the complainant's credibility. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment. It supports credibility only in the sense that, without it, a complainant's account of sexual offending might be incomplete and incomprehensible, since the alleged offending might appear to have occurred 'out of the blue'.[41] Hence, context evidence may remove the implausibility that might otherwise attach to a complainant's account of sexual acts if those acts were permitted to be thought of as isolated incidents. Put shortly, context evidence is not admitted directly to prove guilt, but may have the effect of bolstering the credibility of the complainant.

42 In a criminal trial, the distinction between the use that may be made of tendency evidence on the one hand, and of context evidence on the other, will often require reflection in appropriate directions to the jury.[42] Thus, the authorities recognise that in cases where context evidence - which is not admissible as tendency evidence under s 97(1) and s 101(2) of the Act - has been introduced at trial, a trial judge is required to direct the jury not to use the evidence to draw an inference of sexual interest, that is, not to use it for a tendency purpose.[43] Furthermore, where the evidence is that an accused, prior to the alleged offence, had a sexual interest in a child complainant and acted upon that interest, if such evidence is admitted simply because it provides context - and is not admissible under s 97(1) and s 101(2) - the jury ordinarily must be directed not to use it to reason that because the accused has engaged in relevant conduct on a prior occasion he is more likely to have engaged in it on the occasion the subject of the charge.[44] Moreover, the judge is usually required to give the jury a 'propensity' direction, to the effect that they must not reason that, because the accused engaged in sexual conduct with a complainant on one or more earlier occasions, he (or she) was the kind of person who was likely to have done so on the occasions charged.[45]

43 As mentioned above, by ground 1(e) - to which I will later return[46] - the applicant challenged the admissibility of the evidence described in items C.1 to C.4 of the tendency notice. In effect, it was argued that the evidence of the charged incidents was not cross-admissible. Relying on IMM, counsel submitted that the mere fact that the allegations were charged did not imbue them with any special feature such that they had any more than limited capacity (if any) to rationally affect the probability that the complainant's other accounts are true. IMM dictated that the prosecution ought not have been allowed to rely on the charged acts to support tendency reasoning.

44 IMM involved convictions for two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. There was a single complainant, 'X'. She was the young daughter of the appellant's step-daughter. Tendency evidence was given by the complainant of a separate incident in which the appellant ran his hand up the complainant's leg. In analysing whether this tendency evidence had significant probative value for the purposes of s 97(1)(b), French CJ, Kiefel, Bell and Keane JJ said:[47]

The complainant gave evidence of an occasion which occurred shortly before the appellant and the complainant's grandmother separated. There is no suggestion that there was anything untoward about the activity being undertaken at the time. The complainant and a granddaughter of the appellant were giving the appellant a back massage, as he had requested. The appellant was lying face down on a bed. The complainant was standing next to the bed. The complainant said that the appellant 'ran his hand up my leg'. She was wearing shorts at the time, so his hand did not contact her skin. She said that she moved away.

It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value. In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

Evidence from a complainant adduced to show an [applicant's] sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.

For these reasons the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b).

45 Decided after IMM, Hughes was a tendency evidence case involving multiple complainants who were underage girls. Thus, the indictment charged the appellant with 11 counts of sexual offences against five underage girls aged between six and 15 years at the date of the offending. Prior to trial, the prosecution served a tendency notice. The acts charged in each count and the circumstances of their commission varied, and the notice particularised differing forms of sexual conduct with underage girls. Hence, the charged conduct included digital penetration of the vagina of a girl aged 14 or 15 years; procuring a girl aged between six and eight years to masturbate him; indecently rubbing his erect penis against a nine year old girl; encouraging a 15 year old girl to touch his penis; and indecently exposing himself to girls aged nine and 12 or 13 years. A particular and important feature of that diverse conduct, however, was its occurrence within the vicinity of other adults, in circumstances in which the appellant courted a real risk of detection by another adult. The prosecution also sought to adduce tendency evidence from three women who described occasions when they had been at the appellant's home as young girls and the appellant had either touched them in a sexual way or exposed his penis in their presence. Three women who had worked with the appellant described occasions, when they were aged in their late teens or early twenties, when the appellant had inappropriately sexually touched them or exposed himself to them.

46 Reduced to its essence, the question in Hughes was whether proof that a man of mature years has a sexual interest in female children aged under 16 years ('underage girls') and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value upon his trial for a sexual offence involving an underage girl.[48] The majority (Kiefel CJ, Bell, Keane and Edelman JJ) recognised that although a pattern of conduct or modus operandi may establish significant probative value, there are other ways in which significant probative value may be demonstrated. Thus, significant probative value may be established in a case of sexual offending which involves 'unusual interactions' pursued whilst displaying a 'disinhibited disregard to', and courting, a 'substantial risk of discovery'. The majority observed:[49]

An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a 'pattern of conduct' or a 'modus operandi' which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi - for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.

Given the complainants' ages, consent was not an issue in any of the counts. It was the defence case on each count that the complainant had fabricated her account. That the tendency evidence did more than prove a disposition to commit crimes of the kind in question, and was actually of significant value as proof of his guilt of the offences charged, can be illustrated by hypothesising separate trials in respect of each complainant with the only evidence against the appellant being the evidence of the complainant. In each such case, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults.

47 Importantly, given the previous understanding of the law in this State,[50] the majority in Hughes made plain that similarity of the conduct said to show tendency with the conduct in issue is not necessarily a condition for its admissibility:[51]

Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.

In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford:[52] 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself.[[53]] It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

48 In Bauer, this Court had cause to consider both IMM and Hughes. As to the statement of principle from IMM extracted above,[54] the Court said:[55]

French CJ, Kiefel, Bell and Keane JJ thus made clear that:

• first, in a case of this kind, the probative value of the evidence lies in its capacity to support the credibility of the complainant's account;
• secondly, where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met;
• thirdly, however, a complainant's unsupported evidence may meet the test of requisite probative value if there are some special features of a complainant's account of an uncharged incident which give it significant probative value (although, without more, a complainant's evidence of conduct of a sexual kind on an occasion other than the charged acts cannot be regarded as having the requisite degree of probative value); and
• fourthly, evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true, since it is difficult to see that one might reason rationally to conclude that a complainant's account of charged acts of sexual misconduct is truthful because the complainant gives an account that on another occasion the accused exhibited sexual interest in him or her.

In that context it is important to appreciate that French CJ, Kiefel, Bell and Keane JJ addressed the admissibility of the evidence by focussing on the nature of the fact in issue to which the supposed tendency evidence in that case was relevant; that is - as is common to the instant case - whether the complainant's account was truthful and reliable. In assessing the capacity of the tendency evidence to 'rationally affect the assessment of the probability of the existence of a fact in issue' - whether the complainant's account was credible - the fact that the complainant was the source of the tendency evidence was critical in determining whether the evidence had 'significant probative value'. The evidence lacked significant probative value in establishing that the complainant's account of the charged acts was true because it came from her; it was unsupported by an independent source; and it possessed no other feature which might have given it significant probative value.

49 So far as Hughes was concerned, the Court said:[56]

In our view, at least the following may be drawn from the reasons of the majority in Hughes:

• first, the probative value of tendency evidence will vary depending upon the issue that it is adduced to prove;
• secondly, the particularity of the tendency, and its capacity to affect the rational assessment of whether the prosecution case is proved, will depend upon a consideration of the circumstances of the case;
• thirdly, the admissibility of tendency evidence does not depend on the assessment of any operative features of similarity with the conduct in issue;
• fourthly, although there are dangers in focusing on labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi', nonetheless conduct of the kind embraced by those labels may have significant probative value;
• fifthly, however, significant probative value may be demonstrated in other ways;
• sixthly, tendency evidence is likely to possess a high degree of probative value where the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and the tendency strongly supports the proof of a fact that makes up the offence charged; and
• seventhly, in the circumstances of that case, it was the appellant's attraction to underage girls and his willingness brazenly to act on it with a disinhibited disregard of the evident risks of discovery when committing the offence in question, that imbued the evidence with significant probative value.

In essence, the tendency evidence in Hughes had significant probative value because it made probable that which would otherwise be regarded as improbable; that is, engaging in sexual conduct in circumstances in which the appellant ran a real risk of discovery by other adults. Had that singular feature been absent, it may be inferred that the evidence would not have been considered to possess the requisite degree of significant probative value.

The uncharged and the charged acts: grounds 1(a) and 1(e)

50 Ground 1(a) is concerned with the complainant's evidence that, on occasions other than those charged, the applicant had taken her clothes off, kissed her and digitally penetrated her vagina; and ground 1(e) is concerned with the activity founding each charge, including digital penetration of the vagina (charges 1 and 2), penile penetration of the vagina (charges 3 and 5) and penile penetration of the anus (charge 4).

51 In my view, in light of the reasoning in IMM, the impugned evidence was not admissible as tendency evidence for the purposes of s 97(1) and s 101(2) of the Evidence Act 2008. That is because the complainant is the sole source of the evidence of both the uncharged and the charged acts - it does not come from any source independent of the complainant - in circumstances where there is no 'special feature' of her account which gives it significant probative value. Thus, although the evidence might show sexual interest, it cannot be said to possess significant probative value. The complainant's evidence of conduct of a sexual kind on occasions other than those charged cannot be regarded as having the requisite degree of probative value, since it has limited (if any) capacity rationally to affect the probability that the complainant's account of the charged offences is true. Moreover, I think the same must be true of a charged act or acts vis-à-vis other charged acts. In so saying, I am conscious of the fact that in IMM, French CJ, Kiefel, Bell and Keane JJ were concerned with the admissibility of a complainant's account of uncharged activity with respect to charged activity. In my view, however, there is no valid reason to draw a distinction between a complainant's unsupported account of uncharged incidents, and a complainant's unsupported account of charged incidents.

52 Of course, IAC's evidence of both the uncharged and charged activity cannot be viewed in isolation. But evidence relied on as tendency evidence will only possess a significant degree of probative value where the evidence - either by itself or in combination with other evidence - strongly supports proof of a particular tendency, and that demonstrated tendency strongly supports the proof of a fact that makes up the offence charged. Evidence which merely supports a non-particular sexual interest generally will not have significant probative value, or probative value which substantially outweighs any prejudicial effect it may have on the accused.

53 Contrary to my conclusions, however, senior counsel for the respondent had contended that the impugned evidence was admissible properly to support tendency reasoning. In so doing, counsel placed a deal of reliance on this Court's judgment in Thu.[57] Thus, in the written case he contended that in Thu this Court 'effectively decided that the dicta relied upon from IMM by the applicant was to be understood as confined to the factual circumstances as they arose in IMM and was not to be understood as a blanket statement overturning years of earlier authority on this point', and that 'the Court in Thu hearkened back to its decision in JLS in this respect'. Further, the respondent relied specifically on the passages from Thu set out below,[58] and the Court's perceived endorsement of Gentry,[59] in order to contend that the tendency evidence in the present case was admissible.

54 In my view, however, properly understood, Thu does not support the admissibility of the tendency evidence in issue.

55 Thu involved the applicant's conviction for the penile-vaginal rape of 'AA', the 10 year old daughter of family friends. For the purposes of the trial, the prosecution had filed a tendency notice. The tendency sought to be proven was that of the applicant 'to act in a particular way' towards the complainant, namely 'to have a sexual interest in [AA] a prepubescent female child' and 'a willingness to act on that sexual interest in respect of [AA]'. AA's evidence was that there were many occasions before the alleged rape (and continuing thereafter), where the applicant would tell her that he loved her. The applicant would say things such as, 'I love you baby', and 'wanna have sex'. AA also gave evidence of the applicant's conduct, which included the applicant continually telling her to 'touch his dick and to have sex with him'. When AA got her first mobile phone at the age of 10, the next day the applicant sent her a text which read: 'I love you baby. I have to tell you something. I miss you'. After AA got a new phone, the applicant again sent her similar text messages. He also tried to call her, but she did not answer. Significantly, the informant gave evidence that AA's phone records showed that, in a period of a little over a month, the applicant rang AA's mobile telephone phone on 75 occasions, and that on every one of those occasions the call went unanswered.

56 The trial judge directed the jury that they could use the texts and telephone calls 'to show that [the applicant] had a sexual interest in [AA], and a willingness to act on that interest, and thereby to seek to demonstrate that he is more likely to have committed the offences charged in the indictment'. The judge told the jury that they 'must not use the evidence for any other purpose'.

57 Seeking leave to appeal against his conviction, the applicant submitted that that there was a substantial miscarriage of justice in admitting the evidence as tendency evidence. It was submitted, first, that the evidence demonstrated only a sexual interest, and not a willingness to act upon that interest; secondly, that the evidence did not have significant probative value because the evidence was not admitted to demonstrate a tendency to act in a particular way, but only to demonstrate a tendency to be attracted to AA; thirdly, that the evidence did not have significant probative value because it related to conduct that occurred approximately two and a half years after the day on which the rape was alleged to have occurred; and, fourthly, that the telephone calls did not possess significant probative value because, absent any content, they were not capable of demonstrating that the applicant possessed a sexual interest in AA (the making of unanswered telephone calls not having any overt or implicit sexual connotation). Counsel for the applicant relied on the observations of the plurality in IMM set out above.[60]

58 Refusing leave to appeal in Thu, the Court said:[61]

So far as IMM is concerned, we accept the Crown's submissions that what was said by the plurality in the passage relied upon by the applicant[62] does not mean that AA's evidence of multiple contacts and texts (some of which texts were proved independently of AA) were incapable of being used in the way they were used at trial. It is one thing to say that a complainant's evidence of one additional episode of misconduct might not generally be capable of rationally affecting the probability of that complainant's evidence about a series of other acts being true, it is another to say that evidence from a complainant of multiple dealings and contacts could not be significantly probative on the question whether evidence from the same complainant about a particular charged act should be accepted. In any event, the passage relied upon by the applicant in IMM is distinguishable from the present case because, unlike the facts in IMM, in the present case there was evidence external to the complainant, AA, that demonstrated the applicant's inappropriate sexual interest and willingness to act on that specific sexual interest (the captured text messages).

Finally, we accept the respondent's contentions concerning the principles set out in Gentry, to which we have already referred. The plurality in IMM did not suggest that s 97 departed from the long recognition of the common law of such evidence, as described in Gentry.[63] The evidence about which the applicant makes complaint was highly probative for the reasons given by Redlich JA in Gentry.[64] It was evidence of what was once called 'guilty passion'. It showed a specific tendency of the applicant to show a sexual interest in AA, upon which the applicant was prepared to act by dealing inappropriately with AA in whispered propositions and persistent phoning and texting.

59 It will be seen that, in the first paragraph from Thu extracted above, the Court was able to distinguish IMM on the facts, since, unlike in IMM, there was 'evidence external to the complainant' which was capable of supporting the relevant tendency.

60 Some caution is required, however, when considering the second paragraph from Thu above, since it is capable of being misunderstood. Contrary to the respondent's submissions, in my view that paragraph does not endorse the proposition that all evidence that the common law classifies as evidence of 'guilty passion' is admissible when the sole source of the evidence is the unsupported testimony of a complainant, let alone that such evidence will necessarily possess the high probative value necessary to satisfy the requirements of ss 97(1) and 101(2) of the Evidence Act 2008. In that regard it is important to recognise that the two paragraphs from Gentry[65] cited in Thu did not form part of the ratio of the case, but were obiter.

61 Thus, in Gentry the complainant was in possession of underwear given to her by the applicant. Three of the items of underwear contained seminal stains which, upon forensic examination, were found to contain the applicant's DNA, and two of the items also contained the DNA of the complainant. There was no suggested DNA of any other contributor on any of the underwear. (The complainant also gave evidence regarding two other pairs of underwear which were never located but were allegedly involved in some of the alleged offending.) The prosecution gave notice under s 97(1) that it relied upon the underwear evidence as tendency evidence to show that the applicant acted in a particular way toward the complainant, and had a sexual interest in her. The prosecution also sought to rely on the complainant's evidence as to the circumstances in which she came to possess the underwear and the presence of the applicant's DNA as evidence of context and circumstantial evidence. Hence, the decision in Gentry centrally turned on the probative value of the DNA on the underwear.

62 But even were I wrong about the ratio of Gentry, there are three matters that must be taken into account when considering its persuasive force. First, it is beyond argument that the Court in Gentry drew heavily upon Velkoski and JLS to support the notion that the unsupported evidence of a single complainant may be used to establish guilty passion. As to that, the High Court in Hughes held that Velkoski should not be followed, since it evinced an incorrect approach to tendency evidence for the purposes of the Evidence Act 2008.[66] Secondly, there is ample authority to support the proposition that not all evidence of guilty passion - the subject-matter of the relevant observations in Gentry - qualifies as tendency evidence for the purposes of s 97.[67] Thirdly, as to whether JLS was correctly decided, the Court observed in Bauer:[68]

In Murdoch,[69] in the course of discussing tendency evidence, Priest JA observed - citing JLS[70] - that '[t]his court has also expressed the view - one to which, with respect, I am not immediately attracted - that tendency evidence may be of significant probative value even though it is proved by only a single complainant'.[71] We similarly are unattracted to the view that tendency evidence may be said to possess significant probative value when its sole source is a single complainant. ...

63 As was observed in Murdoch,[72] New South Wales authorities have held that evidence that places relevant events in their true context as part of the essential background is not caught by the provisions of ss 97 and 101(2) of the Act.[73] Context evidence of this kind may be tendered to explain the circumstances of the offence charged, so that a complainant can give a full account, and so that his or her description of an alleged offender's conduct constituting the charged offence will not appear 'out of the blue' and inexplicable on that account.[74] (Some of the directions given by the judge in the present case were expressed in similar terms.)[75] Evidence of that kind may also assist in explaining the complainant's conduct - for example, why he or she did not complain in a timely manner about the offending - allowing the complainant and prosecution to meet a question which would naturally arise in the minds of the jury.[76]

64 Importantly, when evidence is tendered simply to demonstrate the sexual desire of an accused for the complainant, evidence has been classified as relationship evidence, and as not falling within the provisions of ss 97 and 101(2). Evidence showing sexual interest is not regarded as relationship evidence, but instead is regarded as tendency evidence for the purposes of ss 97 and 101(2), when it supports an inference that the accused not only had a sexual attraction for the complainant, but was prepared to act on it (the rationale for the distinction apparently being that the mere fact that the accused has a sexual attraction to a particular person does not reveal a tendency to gratify that attraction).

65 Thus, in Leonard,[77] Hodgson JA adverted to the fact that, in both AH[78] and Qualtieri,[79] evidence of a sexual relationship between a complainant and an accused beyond the particular acts charged had been admitted, first, for the purpose of placing 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; and, secondly, to demonstrate the sexual desire of the accused for the complainant, such evidence being directly relevant to proving that the offence charged was committed. His Honour then went on to observe:[80]

In R v 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 s 97 and s 101 of the Evidence Act have to be satisfied.

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.

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.

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.

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.

66 Quite apart from what was said in IMM, the position before that case was decided seems to have been that admissible tendency evidence would almost never be found in a complainant's account of his or her relationship with the accused, since the complainant's account of the relevant relationship would rarely have sufficient probative value to overcome the preconditions of admissibility for tendency evidence in ss 97(1) and 101(2). Howie J made so much clear in the following observations in Qualtieri:[81]

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] NSWCCA 377; (1999) 48 NSWLR 101.

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.

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'.

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.

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.

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.

67 For these reasons, in my view - and contrary to the central theme of the respondent's submissions on this point - Thu does not endorse the proposition that all evidence that the common law classifies as evidence of 'guilty passion' is admissible when the sole source of the evidence is the unsupported testimony of a complainant, let alone that such evidence will necessarily possess the high probative value necessary to satisfy the requirements of ss 97(1) and 101(2) of the Evidence Act 2008.

68 Grounds 1(a) and 1(e) are, for the reasons above, established.

The applicant saying that he wanted to rape the complainant: ground 1(b)

69 Ground 1(b), which concerns IAC's evidence that the applicant told the complainant that she looked so beautiful he could 'rape' her, should also be upheld.

70 Counsel for the applicant submitted that the conversation was not supported by external evidence, and possessed no special feature. He argued that the evidence did not reach the threshold of significant probative value and was therefore inadmissible to prove that the applicant had a sexual interest in IAC upon which he was willing to act.

72 In so doing, I have not ignored the text messages passing between the applicant and complainant, which include the applicant saying to IAC things such as:

• I still love you lots
• You will always be my friend [IAC], you don't have to marry me ok :-) you don't have to do anything for me to like you or love you
• Are you my girlfriend [?]
• ♥ Your pretty ♥ I could watch you all night
• I miss you your so beautiful
• You go on your date and I won't embarrass you...I thought I was your boyfriend. It's ok
• You not my girlfriend [IAC]! I get a new one

73 On one view, the messages are merely playful and cloyingly affectionate, and therefore somewhat anodyne. On another view, and assuming unwholesome motives, the messages might suggest a manipulative bent and a sexual interest. But whether they are properly interpreted as mawkish and effusive expressions of affection, or as expressions of a perverse desire for the complainant, they are incapable of showing a willingness to act on any sexual interest in the fashion alleged by the prosecution. Thus, in my view, whether taken alone or in combination with the other evidence in the trial, the evidence of the text messages cannot be said to have (significant) probative value which substantially outweighs the prejudicial effect that the evidence might have. The text messages lend little or no support to the complainant's evidence that the appellant told her that she looked so beautiful he could 'rape' her.

76 In well-known Australian slang, 'dacking' is the act of pulling another's pants down.

77 As I have mentioned, the tendency notice suggested a sexual interest in the complainant displayed by the applicant 'Dacking the complainant', the circumstances said to be that the applicant 'engaged in the practice of "dacking" in which he pulled down [IAC's] underwear'.

78 Prior to the special hearing, the judge had expressed some doubts about the admissibility of the evidence, and, although she made no formal ruling, gave indications that the evidence would not be admitted.

79 After IAC's evidence-in-chief had concluded, and immediately before he cross-examined, defence counsel raised the topic of 'dacking' with the trial judge in the following discussion:[82]

[DEFENCE COUNSEL]: ... I've just raised this matter with my learned friend - I will be asking her some questions about dacking. I thought I'd put the court on notice and inform Your Honour.

HER HONOUR: That's up to you, but it's just not it being admitted - - -

[DEFENCE COUNSEL]: That's correct.

HER HONOUR: You were aware of this, Ms Mandie, then?

[PROSECUTOR]: I am and I agree with Your Honour.

80 In the result, there was the following cross-examination of IAC on the special hearing by defence counsel:

[DEFENCE COUNSEL]: One thing he also used to do was dack everyone. Is that correct?---Yes.

He used to dack [MS]?---Yes.

He used to dack [KS]?---No, not really [KS].

Did he used to dack [RJC]?---No.

Did he ever dack [RJC]?---Yeah.

How many times? Can you recall?---No.

He used to dack you as well, didn't he?---Yes.

This dacking used to happen in the lounge room, in front of everyone?---Not always.

Where was it at other times?

HER HONOUR: What's dacking, first? Ask her what does she mean by dacking. What do you mean by dacking?---It's like when you pull down someone's pants. Yeah.

Your question, [defence counsel], was?

[DEFENCE COUNSEL]: Most of the time, it was in the lounge room. That's correct?---Yes.

When it was in the lounge room, it'd be in front of everyone. That's correct?---Not always.

Were there other people present?---Yes.

There'll be a different combination of people present. That's correct?---Yes.

It could be your mum?---He didn't really usually do it in front of her, because she didn't agree with it, but yes.

When you say she'd never agree with it, you heard her tell him off once for doing that. Is that correct?---More than once, yes.

Can you recall how many times she told him off?---No.

She was aware that that had happened?---Yes.

Was it also the fact that when he was playing with [MS and KS], he will get them all excited and he'll get them to try to dack you as well?---Yes.

HER HONOUR: There are two questions there. When he was playing, did he get [MS and KS] excited?---Yes.

Did they then dack you?---Yes.

[DEFENCE COUNSEL]: Everyone used to laugh. Is that correct?---Yes.

When I say everyone, [the applicant] used to laugh?---Yes.

[MS and KS] used to laugh?---Yes.

Did you laugh as well?---No.

You didn't like it?---No.

You found it embarrassing. Is that right?---Yes.

You found it embarrassing that everyone was laughing at you?---Yes.

When he used to dack you - i.e. pull your pants down - - -?---Yes.

- - - your underwear was still on, wasn't it?---Not always. There was this one time in front of [RJC] when that didn't happen.

HER HONOUR: What do you mean that - - -

[DEFENCE COUNSEL]: When was that?---He took my underwear off as well.

Can you tell me a little bit about that happen?---In the lounge room. It was when we were watching the Olympics - the Olympics thingies, the - like at the start of the Olympics. And we were watching it and he dacked me and - - -

I'll just stop you there just a moment. When you said at the Olympics, at the start of it - - -

HER HONOUR: Let the witness finish the question (indistinct) then you can go back. What do you say?---He was - we were sitting on the couch watching it, and then I stood up to get a drink of water and he pulled my pants down as well as my underwear, and then him and [RJC] were laughing about it. And then I pulled my pants up and went to get a drink of water, and then I came back and he did it again.

[DEFENCE COUNSEL]: He did it twice that time?---Yes.

Was it twice that your underwear came off?---Yes.

You're 100 per cent sure about that?---Yes.

81 I am not sure why the judge thought, as she did, that the cross-examination 're-enlivened' the issue of 'dacking', and permitted the evidence to be used as tendency evidence. Be that as it may, it is difficult to see that, despite IAC's underwear coming down twice in the course of one episode, the applicant's puerile practice of dacking the children - a practice that they too apparently indulged in - was capable of being interpreted as anything other than an innocent, infantile game. In my view, it is something of a stretch to suggest that the evidence was capable of showing a sexual interest in the complainant. Certainly, the dacking evidence did not have significant probative value, either alone or in combination with other evidence.

82 The dacking evidence was wrongly admitted as tendency evidence. Ground 1(d) should succeed.

The applicant and the complainant in the bedroom: ground 1(c)

83 Ground 1(c), which is concerned with SG's evidence of witnessing the interaction between the applicant and IAC in the bedroom,[83] presents more difficulty than does the other evidence which is the subject of ground 1.

84 SG, it will be remembered, described a specific incident in early 2014, when she went to the door of the applicant's bedroom, and saw the complainant in between the applicant's legs. She said that the applicant was rubbing the side of IAC's body up to her hands, and her hands were over her head. Both, SG said, were clothed. No better description was given of the incident, although by her reaction, it seems clear that SG disapproved of what she saw.

85 In my view, SG's evidence of what she observed in the bedroom was far too vague and unspecific to possess significant probative value. For the sake of argument, however, I am prepared to assume that, depending on how the jury interpreted that evidence, it had the capacity to show that the applicant had a generalised sexual interest in the complainant.

86 It does not follow, however, that beyond being capable of showing a generalised sexual interest in IAC (and, for the sake of argument, a willingness to act on it in a way that did not resemble or approximate either the charged or uncharged sexual activity), this piece of evidence demonstrated a tendency to act in a particular way or to have a particular state of mind, thereby supporting the specific allegations made by the complainant with respect to the uncharged and charged activity.

87 In Hughes, it was observed that s 97(1) in terms provides for the admission of evidence of a person's tendency to have a particular state of mind, an adult's sexual interest in young children being a particular state of mind. Thus, on the trial of a sexual offence against a young child, 'proof of that particular state of mind may have the capacity to have significant probative value'.[84]

88 Those observations must, however, be read in the context of what the Court ultimately held. Thus, although the High Court made plain in Hughes that the admissibility of tendency evidence does not depend on the assessment of any operative features of similarity with the conduct in issue, the majority also made clear that it was the appellant's attraction to underage girls, and his willingness brazenly to act upon that attraction with a disinhibited disregard for the evident risks of discovery when committing the offence in question, that imbued the evidence with significant probative value. Evidence relied on as tendency evidence will only possess a significant degree of probative value where the evidence, by itself or together with other evidence, strongly supports proof of a particular tendency, and the tendency strongly supports the proof of a fact that makes up the offence charged.

89 As has been mentioned,[85] the Court in Hughes disapproved of the previous approach to tendency evidence in this State exemplified by Velkoski; and, as is plain from the passage from Hughes set out above,[86] with perhaps a small qualification, approved of the approach adopted in New South Wales, exemplified in Ford.[87] In Ford, it was held that in deciding the question of whether evidence has significant probative value for the purposes of s 97(1)(b):[88]

... there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged.

90 Ford was a case where the trial judge decided that the evidence of three complainants in a series of trials for sexual offences could not be admitted as tendency evidence. The tendency described in the tendency notice was:

... a tendency to act in a particular way, namely to sexually molest young women who (1) have stayed over at his house after attending a party, (2) have consumed a significant amount of alcohol, (3) are asleep, (4) where there is a risk of being discovered by others in the house.

91 Finding that the judge had wrongly excluded the evidence relied on in proof of tendency, Campbell JA observed:[89]

The second flaw is the judge's apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to s 97(1), is 'a tendency to act in a particular way'.

Of course, before any question can arise of s 97 being applicable to evidence that a person has some particular tendency, whether that person has such a tendency must itself be relevant to a fact that is in issue concerning the particular crime that is charged. This was recognised in R v Cittadini (2008) 189 A Crim R 492; [2008] NSWCCA 256, when Simpson J (with whom McClellan CJ at CL agreed) said (at [22]-[23]):

[22] Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.

[23] Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).

Similarly in R v Harker [2004] NSWCCA 427 at [57] (Harker), Howie J (with whom Santow JA and Bell J agreed) said:

[57] ... tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion.

92 In my view, taken at its highest, and in the context of the evidence as a whole, SG's evidence of what she saw did not make more likely, to a significant extent, the facts that make up the elements of the offences charged. At its best, the evidence could have shown no more than that the applicant might have had a generalised sexual interest in the complainant.

94 For the reasons discussed above, each part of ground 1 is made out.

95 Without the wrongly admitted tendency evidence, the prosecution case was not so strong as to make conviction inevitable. To a large extent, the case turned on the credibility of the complainant. The inadmissible evidence not only impermissibly bolstered IAC's credit, but it allowed the jury impermissibly to use it to indulge in tendency reasoning. There has, therefore, been a substantial miscarriage of justice.

Ground 2 - Repeated use of the expression 'rape'

97 Self-evidently, had the prosecution desired to prove that the applicant's sexual penetration had occurred without IAC's consent,[90] an indictment charging rape could have been laid. Instead, the prosecution chose to lay charges of incest. Undoubtedly, that was done so as to avoid the necessity to prove IAC's non-consent to sexual penetration, lack of consent not being an element of the offence of incest,[91] and consent being no defence thereto.[92]

98 IAC seems to have used 'rape' and its variants as a compendious term for sexual penetration, both in her VAREs[93] and her complaint to IT.[94] (Whether she employed the term to embrace digital penetration is not clear to me, but certainly she used it to describe penile-vaginal and penile-anal penetration.)[95]

99 As I have previously mentioned,[96] notwithstanding that the indictment did not charge rape, in opening to the jury the prosecutor characterised each act of penetration - digital and penile - as 'rape', and repeated a number of times that the applicant had 'raped' the complainant. In those circumstances, it is surprising that defence counsel was not moved immediately to seek a discharge of the jury, or, at the very least, seek a remedial direction from the trial judge. It is also surprising that the trial judge did not herself intervene to protect the integrity of the trial. But neither of those things happened.

100 In this Court, counsel for the applicant submitted that in her opening address, the prosecutor described the applicant's conduct as 'rape' on nine occasions, and in her final address she used the word 'rape' on 31 occasions. Further, in her charge, the judge used the expression 'rape' on 76 occasions. Counsel for the applicant submitted that 'rape' has a technical legal meaning, and a colloquial meaning. In colloquial terms, which, counsel submitted, 'is all the jury had to go on', it is 'a very derogatory term denoting the use of violence to engage in sexual acts with another person'. The use of the term 'is likely to lead to even greater disdain towards a person accused of the offence' if the other person is a child. Its use had 'a great capacity to engender sympathy for the victim and disdain and prejudice' towards the applicant.

101 Counsel for the applicant submitted that rape was 'a compendious term used by the complainant to describe what she had alleged happened to her in the complaint evidence and also in the VARE'. It was submitted that, had the situation been that the evidence of the complaint and the VARE continued to be in its original form, and had the judge given firm directions, first, that this was not a case of rape; and secondly, that the jury should consider only the charges before them; and, following those directions, a neutral term such as 'incident' or 'sexual assault' was used; it may have been possible to craft a direction sufficient to ameliorate the otherwise unacceptable prejudice. But that was not the case.

102 The respondent's counsel submitted that there would be nothing wrong in a case such as the present in the prosecutor and trial judge stating correctly the prosecution case but making faithful reference to the evidence led in support of that case. A prophylactic direction might be sought if defence counsel thought that the evidence in its terms was somehow prejudicial. But none was sought.

103 Counsel for the respondent submitted that, in circumstances where IAC defined 'rape' in her first VARE to mean 'forcing someone to have sex', and where she went on to describe forcible penetrative sexual encounters, it might be understood why a direction was not sought. Those submissions having been advanced, however, counsel for the respondent conceded in written submissions that 'it would - of course - have been in error for the prosecutor or the trial judge to have stated expressly, or to have implied, that the Crown case was one of rape when in fact this was not the case, even if the offence of rape was never defined for the jury and certainly - it might be thought - if it was'. Orally, counsel for the respondent initially conceded that there 'should have been greater accuracy of reference'; although he later submitted that, 'on reflection, I don't concede there was inaccuracy'.[97]

104 The respondent's counsel contended that it is unlikely that the jury would, on balance, have thought that the Crown case was really one of rape rather than incest when the impugned references are read in their full context. But even if the jury might have taken references by the prosecutor and the trial judge to the term 'rape' to be some form of endorsement of that offence over and above simply a reference to evidence, there can have been no real prejudice to the applicant. The term featured liberally in the evidence, in both the relevant VARE and the tendency evidence, and it was a tool employed by the defence in aid of a suggestion of a 'vivid imagination' on IAC's part. Counsel submitted that it is 'not the quantity of the term's usage in the hands of either the prosecutor or the trial judge, but rather the usage's quality'. No substantial miscarriage of justice arose as a result of the use of the term.

105 It is important to note that, following the hearing in this Court, senior counsel for the respondent provided further written submissions, directed to re-instating a concession that he had withdrawn in the course of oral argument. Hence, having initially conceded in debate that there should have been 'greater accuracy of reference', senior counsel withdrew that concession when confronted with a suggestion from a member of the Court that a reference to 'rape' in the trial was inevitable. After the hearing had concluded, however, senior counsel for the respondent came to the view that he was wrong to have withdrawn the concession. With perspicuous fairness, senior counsel for the respondent therefore provided a written 'note' to the Court. In it, senior counsel stated that, since the hearing, he had 'given anxious consideration to whether he was correct to withdraw the concession, or, at least do so without qualification'. He said that, on reflection, and with the benefit of having further regard to transcript references in the respondent's written case, 'it is difficult to escape the conclusion that there was as a matter of strict analysis some looseness or inaccuracy of language above and beyond any necessity or inevitability of reference'. Senior counsel said that, 'Thus, to this extent, it was wrong of the respondent's counsel to withdraw, at least without this qualification, the concession that had earlier been made'. He added, however, that 'for the reasons already articulated both in writing and orally, any concession as to inaccuracy now adhered to should not be taken to extend to a concession as to the existence of "an error or an irregularity in, or in relation to, the trial" or one that has resulted in "a substantial miscarriage of justice"'.

106 Save to say that the respondent's counsel was plainly correct to concede - at the very least - that there was 'some looseness or inaccuracy of language above and beyond any necessity or inevitability of reference', I do not accept the respondent's submissions. In particular, I cannot accept that in the circumstances there has been no substantial miscarriage of justice.

107 Plainly, the word 'rape' is loaded. Among lay persons, its meaning often is imprecise.[98] Colloquially, it may be understood to mean forcing another to have sex, accompanied by violence. Certainly, it is a pejorative term, subtly evocative. Its persistent use was calculated to arouse prejudice in the jury, that prejudice being insidious.

108 The prejudice engendered by the prosecutor's repeated use of the term 'rape' in opening the case was compounded by the judge's failure immediately to give a direction emphasising that the present was not a case of rape, and that the jury should not be distracted by its use. True it is that counsel did not seek a direction, but the judge should have been astute to ensure that the fairness of the trial was not compromised by its enthusiastic and pointed repetition.[99] Indeed, what the judge did eventually tell the jury amplified the prejudice introduced into the trial by the prosecutor's repeated use of the term.

109 Hence, when commencing her directions on the elements of the crime of incest, the judge said:[100]

In order - this is for - the charges are incest. That is the charge. I know [IAC] refers to rape and so on but incest is the official charge, all right? She is still alleging penetration ...

110 With respect, the judge should never have told the jury that incest was 'the official charge'. It was the charge. The judge's direction that incest was the 'official' charge buttressed the clear insinuation that the unofficial or actual charges were rape.

111 Another unfortunate example of the judge's reference to rape in her charge is to be found in her directions concerning complaint. She said:[101]

The second way you can use [IAC's] complaint if you find that she did complain about the rapes in Charges - alleged rapes in Charges 3, 4 and 5 - that is what she terms incest is an offence of penetration, rape if you like - you can use it when assessing her credibility.

112 An accused person has a right not to be tried unfairly.[102] Although judicial measures cannot always secure perfect justice, an accused person is entitled to a trial as fair as the courts can make it.[103] Having observed that an accused has 'an immunity against conviction otherwise than after a fair trial', in Jago, Deane J went on to say:[104]

The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. ...

113 The principal duty of a judge in a criminal jury trial is to ensure a fair trial according to law. A fundamental aspect of that duty is to ensure, so far as it is within the judge's power to do so, that the accused is not tried unfairly. Put another way, the cardinal role of the judge is to ensure the propriety and fairness of the trial. As Barwick CJ said in Ratten, when discussing the essentials of a criminal trial:[105]

It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not.

114 In Birks,[106] Lusher AJ described the judge's duty as follows:

... A trial judge in a criminal trial carries a heavy burden. He must see that the accused has a fair trial. He has an obligation to see the trial is conducted fairly and in accordance with law. He must exclude evidence which is not shown to be admissible. In short, the principle is that an accused should not be convicted on any but legal evidence (R v Gibson (1887) 18 QBD 537 at 543 per Wills J), further, and per the same judge: '... If a mistake had been made by counsel, that would not relieve the Judge from the duty to see that proper evidence only was before the jury'. In Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365 at 381, the joint judgment said plainly that the prosecution must take responsibility for leading inadmissible evidence and the failure of the prisoner's counsel to object did not make it admissible. Similarly, in Stirland v Director of Public Prosecutions [1944] AC 315, it was said an improper question should be disallowed even though no objection be taken, the basis being that justice is to be done as far as possible according to law: see per Viscount Simon (at 327-328) speaking for their Lordships. In the light of these principles it is not to the point to say the accused or his counsel may have sought some tactical or other advantage from the questions being considered by not objecting.

115 Moreover, as was recognised in RPS,[107] part of the 'fundamental task of a trial judge ... to ensure a fair trial of the accused' will 'require the judge to warn the jury about how they should not reason'. Part of that fundamental task will necessitate a judge giving to the jury any warning 'necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'.[108]

116 Even in these days of the Jury Directions Act 2015 - which broadens counsel's duty to the court with respect to seeking necessary jury directions[109] - the trial judge's essential duty to maintain the propriety and fairness of a trial fundamentally remains unchanged. Sometimes, notwithstanding the essentially adversarial nature of a criminal trial, that fundamental duty will require the judge to intervene to prevent the accused being tried unfairly, notwithstanding the inaction of counsel.

117 This Court has a duty to intervene if persuaded that there has been a substantial miscarriage of justice. Perhaps more often than not, the choices taken by counsel at trial will be determinative of whether an apparent miscarriage of justice can be regarded as substantial. That is because, as the authorities recognise, generally speaking the parties to criminal litigation are bound by the conduct of their counsel. Trial counsel exercise a wide discretion in deciding what issues to contest, and the manner in which they are to be contested.[110] Hence, an applicant will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability.[111] In my view, this is not such a case.

118 I do not accept that defence counsel's failure to object to the persistent and pervasive use of the expression 'rape' was borne of rational forensic decision-making. There was no conceivable benefit to the defence case in it continually being repeated that the applicant's alleged crime was rape. In my view, no counsel experienced in the criminal law, exercising competent forensic judgment, could sensibly have concluded in the present case that there was no unacceptable prejudice flowing to his client by the repeated allusion to rape (the apparently unofficial charge). Moreover, having closely read defence counsel's final address to the jury, it wholly eludes me how it could be suggested that he sought to take forensic advantage of the use of the word 'rape'.

119 As I have said, counsel for the applicant submitted that the prosecutor in opening described the applicant's conduct as 'rape' on nine occasions, and in her final address used the word 'rape' on 31 occasions. Furthermore, the judge used the expression 'rape' on 76 occasions in the course of the charge. There is no magic, however, in the number of times the expression 'rape' was used. What is decisive, is the overall impression gleaned from a complete and contextual reading of the record of the trial. Having carried out that exercise, I am of the view that the essential complaint in ground 2 - that 'the use of the word 'rape' persistently at key times in the trial by the Trial Judge and the Prosecutor created a prejudice to the Applicant which resulted in an unfair trial' - is made out.

120 My very clear impression is that the unjustified, unnecessary and continual allusion to rape created such prejudice to the applicant that an unfair trial resulted. If deemed impractical for the purposes of the trial to quarantine IAC's references to rape (and its derivatives) then a specific, tailored direction to the jury was necessary, to confront directly the potential for prejudice arising from IAC's use of the descriptive term 'rape'. Had the matter been approached that way, there would have been no warrant for the prosecutor or judge continually to intimate that the case was one of rape. The pervasive theme that the present was a case of rape was calculated, in my view, to have influenced the jury's perceptions in an unconscious manner. It must be remembered that, notwithstanding all of the strengths of the system of trial by jury which may otherwise be acknowledged, the average juror does not enjoy the same training in decision-making as does the ordinary judge.[112] Neither is the average juror a logician.[113] Had the matter been confronted directly, so that the jury had at the forefront of their collective mind the need to avoid any unconscious bias from the use of that term, the fairness of the trial might not have been, as it was, irredeemably impaired.

121 For these reasons, there has been a substantial miscarriage of justice. It cannot be said, in my view, that the repeated insinuation that the present was a case of rape was a mere blemish that could not have affected the outcome of the trial. IAC's credit was pivotal. Had the trial not been infused with the prejudice to which I have adverted, it could not be said that conviction was in any event inevitable.

Ground 3 - Directions on VARE bolstering credibility

123 Ground 3, which impugns directions given to the jury prior to the VAREs and recorded evidence from the special hearing being played, is without merit.

124 At the time of the applicant's trial, s 375 of the Criminal Procedure Act 2009 provided:[114]

375 Jury warning as to recording of special hearing

If a recording of a special hearing is admitted into evidence under section 374, the trial judge must warn the jury -

(a) that it is routine practice for the evidence of a complainant who is under the age of 18 years or has a cognitive impairment to be recorded at a special hearing before the trial; and

(b) that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(c) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

125 Prior to the VAREs being played to the jury, the judge gave directions to the jury which included the following:[115]

... Over the years, I guess since the late 1990s, there's been a lot of changes as to the way that complainants in sexual assault cases or people making sexual assault allegations give their evidence. In particular, lots of changes in relation to children and the giving of evidence of children under the age of 18 or witnesses who are cognitively impaired, and that's not the case here. Here, [IAC] is under 18. The law has changed so many times that the bottom line is this - to make them feel more at ease when they give their evidence, all those things to do with children, that it's a bit scary to come in here and look at 12 faces and talk about these things - so the law's changed enormously over the years, to the point where evidence or a statement of a child - a person under 18, the definition of a child - who's giving evidence of a sexual allegation, the evidence is pre-recorded at the earliest opportunity.

What that means is the child goes to the police station and consistent with this new system - it's not new, 1990s - with the latest system of taking the evidence (indistinct) the police don't wear their uniform when they're asking questions. They've got their civies on and they sit in a comfortable chair and it's not like interviewing in an interview room. It's a very different child friendly environment, which I think you could probably understand the reason for that. Over the years, there's been this huge change in relation to the giving of evidence that way. You're going to see [IAC's] statement to police, the first one she made, over there on the screen. You don't actually see [IAC] in the flesh over here in the room, but it's part of the court - when it is, it's part of the court. You have to determine your verdicts based on the evidence you hear in the courtroom. That is part of the courtroom.

I need to tell you a few things about these VAREs. VARE, video audio recorded evidence. It's been around so long they used to be called VATEs, video audio taped evidence, when you used to have the little tape recorder. They've been around a long time and that's just the way it's done. ...

I need to say something about the fact that these are recorded. First of all, you must give that evidence no greater or lesser weight than whether if [IAC] or any of the other witnesses came in and stood over there. You must treat it exactly the same way as if she walked in the door there and stood over there. No greater or lesser weight given to that form of giving evidence. Very important also, you must not draw any adverse inference to [the applicant] because the evidence is given that way, because that is how it is done. Obviously, you can't draw an adverse inference against him because it's given that way, because the law says it has to be given that way. It's very important you understand that.

...

126 The judge gave further directions to the jury prior to the recording of the special hearing being played to them, including the following:

... The law says that a complainant in a sexual case - this is the way it must be done. You will not see [IAC] come in here, stand over there, and be cross examined, because as you could imagine if you thought about it, it's all part of this making the courts more user-friendly. She's a child coming in here talking about sexual matters to a whole lot of people she doesn't know, a whole lot of adults she doesn't know. It's freighting [scil, frightening] seeing us dressed up in this sort of gear. It's just not the right environment. The way it is done with children under the age of 18 or cognitively impaired - that's not the case here - but children under the age of 18, their cross examination takes place with us in the courtroom, counsel and myself and then solicitors and [tipstaff], but [IAC] is in another room. We call it the remote witness room. It's in a building in Melbourne in this general area. I won't need to tell you where it is, but that's where [IAC] will be.

At the start of this hearing, I'll tell you a bit about the process. You'll hear me, because I was the judge that just happened to have been the one presiding over it, and you'll hear me tell you a bit about the system and that'll explain it all to you. What we're going to do now is it's very important that again as I've said - and I'm not going to sound like a broken record, I won't keep repeating it. I won't insult your intelligence, but you've got to be extra careful no adverse inference to [the applicant] because she's on a recorded pre-recorded evidence, because that's the way it's done, and no greater or lesser weight given to the evidence given that way. It's just the way it's done. There's no choice, this is the way it's done. ...

127 No oral argument was advanced in support of the present ground. It was submitted in the written case, however, that the directions diverted the jury from its task, focusing their attention on how 'scary' it was for the complainant to be cross-examined. Hence, the directions went well beyond directing the jury that the mode of testimony is irrelevant to their determination of the issues. In circumstances in which the complainant had been subject to very lengthy cross-examination, so it was submitted, the directions had a real tendency to create resentment in the jury towards defence counsel, and, by extension, the applicant. The directions were unbalanced and unnecessary, and, particularly 'in light of the context of ground 2', the applicant suffered such prejudice that he has not had a fair trial according to law.

128 In my view, although the judge did not recite in terms 'that it is routine practice for the evidence of a complainant who is under the age of 18 years ... to be recorded at a special hearing before the trial', the judge sufficiently conveyed the essence of what s 375(a) contemplates in what she did say. Moreover, her directions clearly conformed to the requirements of ss 375(b) and (c).

129 With respect to the judge's other observations about the process, they were unnecessary. Indeed, it would have been preferable if the trial judge had confined herself to the wording of the statute. In the circumstances, however, I cannot see that there has been any substantial miscarriage of justice.[116]

130 Having read the directions a number of times, I have been unable to detect any comment that was apt to inflame sympathy for the complainant, or resentment towards defence counsel or the applicant. With respect, to inform the jury in effect that the curial process was frightening for a child was to state something that would have been blindingly obvious to any juror with a modicum of common sense and experience of life.

133 IAC's evidence was that the conduct founding charge 3 was on an afternoon a 'few weeks before athletics day' on 22 August 2014. When cross-examining EG, defence counsel desired to elicit from her that IAC had told her that the conduct occurred on 22 August 2014 itself. In an endeavour to do so, counsel sought to put to EG an answer she had given to a question on the topic in the committal proceedings. The prosecutor objected on the basis that 'the lead-up questions make the context of this question a bit unclear'.

134 In the course of discussion concerning the objection in the absence of the jury, the judge came to the view - so far as I can see, quite properly - that the answer that counsel sought to draw out needed to be put into context. Thus, if counsel wanted to pursue the answer, a substantial part of EG's evidence leading up to the critical answer needed to be put to her.

135 Counsel for the applicant addressed no oral argument to support ground 4. It was submitted in the written case, however, that by adopting the course that she did, the judge somehow entered the arena. That submission is without substance. EG was 15 years of age. Fairness to her, and to the prosecution, demanded that the cherry-picked answer be put into proper context. By insisting that counsel put the relevant answer into proper context, the judge was doing no more (nor less) than her duty.

136 Additionally, counsel for the applicant in essence complained that the judge had also interrupted trial counsel's cross-examination of IAC on the special hearing concerning the critical date. During the VARE conducted on 7 October 2014, IAC had at one point given an answer to a question by interviewing police perhaps capable of suggesting that the events founding charge 3 occurred on 22 August 2014, not 'a few weeks before'. The trial judge interrupted the cross-examination, observing that to take the witness to one question 'in isolation' is 'not the way to do

it', given that 'you're talking here to a 14-year-old girl who, seven questions later on made that very point' (that is, that the events had occurred a few weeks before athletics day).

137 In my view, the judge's intervention was entirely appropriate so as to preserve the fairness of the trial process. The criticism levelled at the judge lacks substance.

139 Leave to appeal should be granted on grounds 1 and 2, the appeal allowed and the convictions set aside. A new trial should be ordered.

140 We have had the considerable advantage of reading a draft of the reasons for judgment of Priest JA. We gratefully adopt his Honour's account of the relevant facts and circumstances and of the issues which fall for determination. We agree with his Honour that, for the reasons given by him, leave to appeal in respect of grounds 3 and 4 should be refused. In Priest JA's view, leave should be granted on grounds 1 and 2 and the appeal allowed on those grounds. While we would grant leave to appeal on grounds 1 and 2, for the reasons which follow, we would dismiss the appeal.

Ground 1: whether tendency evidence was wrongly admitted

141 The tendency notice filed by the Crown identified the fact in issue to which the tendency evidence related in respect of each of the charges the applicant was facing as being 'whether the accused sexually penetrated the complainant'.

142 The tendency that the Crown sought to establish was a tendency of the applicant 'to act in a particular way or have a particular state of mind towards [IAC]', namely 'to have a sexual interest in [IAC] a pre-pubescent female child' and 'a willingness to act on that sexual interest in respect of [IAC]'. The tendency notice contained two tables (Table B and Table C) which contained relevant particulars. In Table B, particulars B.1-B.6 were provided in relation to the applicant's tendency to have a sexual interest in IAC. In Table C, particulars C.1-C.5 were given of the applicant's tendency to have a willingness to act on his sexual interest in respect of IAC.

143 Ultimately, the judge admitted, as tendency evidence, the evidence referred to in particulars B.2, B.3, B.5, B.6 and C.1-C.5. The judge excluded the evidence referred to in particulars B.1 and B.4, and nothing further need be said about them. While objection was taken on behalf of the applicant at trial to the evidence referred to in particular B.3, no complaint is now made about the admission of that evidence by the judge as tendency evidence. The evidence referred to in B.3 was described in the tendency notice in the following terms:

The evidence of a conversation between the accused and [SG] when her father was sick regarding an occasion where the accused admitted that he had stripped the complainant to her undies, held her knees apart to spread her legs so that the complainant could speak up and tell her no and that the complainant did not feel comfortable.

144 While complaint is now made about the admission, as tendency evidence, of the complainant's account of the circumstances giving rise to each charge (C.1-C.4), it does not appear that the applicant's trial counsel[117] made any submission to the trial judge in opposition to the receipt of this evidence as tendency evidence.

145 The remaining items of evidence about which there was dispute at trial and about which complaint is made in ground 1 were described in the tendency notice as follows:[118]

The observations of the complainant's mother [SG] regarding her observations of the accused and complainant.

She recalls looking into [the accused's] room with him sitting on the bed. [IAC] was wrapped up in the black blanket with her legs up to her head.

She recalls a further occasion in the lounge room trying to tidy toys. She went into [the accused's] room. She observed [the accused] on top of [IAC] who was on her back with [the accused] kneeling over her legs and there was a blanket behind [the accused] and she could see [IAC's] feet out the back of the blanket. [IAC] had her arms above her head and [the accused] was leaning forward rubbing her from the sides right up to her hands. [IAC] had clothes on and her eyes closed. She told the accused this is not appropriate. He jumped up straight away. She told [IAC] to get out and she did not want this happening anymore. He said he would tell [IAC] that she was not allowed to go in the room anymore.

The accused engaged in the practice of 'dacking' in which he pulled down her underwear.

According to [IAC's] VARE, the accused would tell the complainant that she was sexy. He also told her she looked so beautiful he could rape her and asked whether they were going to run away and get married.

The prosecution will also produce photographs of text messages from the accused's I-phone, for example:

A: You love [UC] more than me ... It's okay I guess. I still love you lots.

A: You will always be my friend [IAC] - you don't have to marry me ok - ) you don't have to do anything for me to like you or love you.

A: Send me some pictures of you doing duck face lol

[love heart] Your pretty [love heart] I could watch you all night.

['Daddy I've been invited from a groupd of people to go to the movies...]

A: You go on your date and I won't embarrass you...I thought I was your boyfriend. It's ok.

A: You not my girlfriend [IAC]! I get a new one. You no my girlfriend [IAC].

It's okay. I just wanted to see you, your beautiful. I'm sorry I mess with your head but I love you more then anything and I think your gorgeous.

I messed with your head to much and now you like [ik] more than me. Sorry sweet cheeks.

Rather talk to a boy you hate then meeee and I love youuuu.

Its all good. I'll take [RJC] to the movies instead.

A: You don't talk to me, she does. And you don't wanna marry me anymore. I test your love and you fail! QQ

Further to the evidence from the complainant and text messages, according to [SG], the accused told [IAC] that she was beautiful and he knew what boys were like in terms of how they were thinking about sex. He was trying to give her advice about not being so trusting with boys.

The complainant also described other occasions [the accused] took her clothes off at other times and [that] 'they were very much all the same'. He would give her lots of kisses and then he would just start taking her clothes off. He took her clothes off. There are no particular occasions that she recalls numerous occasions (sic). He digitally penetrated her. She describes a further occasion where she woke up completely naked and was really wet. She asked why she was naked and he said he was checking if she was asleep. This occurred in January 2014 around his birthday.

146 In her charge to the jury, the judge conveniently summarised the tendency evidence that was admitted at trial as follows:

So as you know, part of the prosecution case is that [the accused] has demonstrated the sexual interest in [IAC] and a willingness to act on that interest, and I am now referring to the evidence of [IAC], which I will briefly encompass in this summary at the moment, in which she said the accused on occasions other than charges 1 and 2, put his finger or fingers in her vagina and her evidence that on other occasions he would undress her and kiss her.

The prosecution also relies on one occasion when the accused dacked [IAC] two times on that occasion, removing her underwear in the dacking. The prosecution also relies upon what the prosecution submits is him talking to [IAC] in a sexualised manner and sending her messages showing sexual interest in her by the accused. The prosecution also relies upon the evidence of [SG], of her observation of the accused and [IAC] in the accused's bedroom when she was at the door. Remember [SG] was at the door and saw him straddling [IAC], both were clothed she said and the accused was rubbing [IAC's] torso up to her hands above her head. The prosecution also relies upon the conversation that the accused had with [SG], in which he told her he had stripped [IAC] to her undies, tried to separate her knees, trying to make [IAC] say, no.

The prosecution argues that this evidence singly and together of the words (sic) and the conduct of [the accused] demonstrates that as [IAC] was approaching puberty he had a tendency to think of her in a sexual manner and to treat her like a girlfriend, to act like a jealous boyfriend, that he expressed his attraction to her, says the prosecution, wanting to marry her and to rape her. That he acted on this sexual interest in repeatedly stripping and kissing her from age 11 and repeatedly penetrating her digitally, that means finger. The prosecution submits that you can find on all the evidence that [the accused] had a sexual interest in [IAC] and a willingness to act on that interest relevant to charges 1 to 5 on the indictment.

147 As to the uncharged acts the subject of particular C.5 of the tendency notice, IAC's evidence was that the applicant put his fingers in her vagina between 15 and 30 times. There was, however, no evidence at trial about these specific episodes that was from a source independent of the complainant.[119]

148 As to the issue of the applicant 'dacking' the complainant, SG gave evidence of an occasion when she saw the applicant pull down the complainant's pants and run off with them. She also gave evidence of an occasion when RJC told her that the applicant had pulled down the complainant's pants and underwear. SG gave evidence that, after RJC told her this, SG told the applicant not to do this anymore and that she said to the applicant 'she [IAC] was getting too old for that sort of stuff, she's going through changes and you don't do that and I didn't want him to do that'.

149 Putting notice requirements to one side,[120] the admissibility of tendency evidence is governed by ss 97(1) and 101(2) of the Evidence Act. Section 97(1) relevantly provides:

(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 unless -

(b) the court thinks that the evidence will, 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.

150 Section 101(2) of the Evidence Act provides that tendency evidence about an accused, that is adduced by the prosecution, cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

151 As was observed in Thrussell v The Queen,[121] in IMM, the High Court held that, in assessing the probative value of tendency evidence, a trial judge should proceed on the assumption that the jury would accept the evidence.[122] In IMM, French CJ, Kiefel, Bell and Keane JJ said:

The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words 'if it were accepted', which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.[123]

152 In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ said:

Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. ...

In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[124]

153 The judge ruled admissible, as tendency evidence, the evidence given by SG of her conversation with the applicant in which the applicant was alleged to have told SG that he had stripped the complainant to her undies and held her knees apart to spread her legs so that the complainant could speak up and 'tell her no' (particular B.3).[125] In her reasons for admitting this evidence as tendency evidence, the judge said:

The accused, the prosecution submits, admitted to [SG] he stripped [IAC] to her undies, spread her legs and had the conversation described by [SG] ...

[Defence counsel] submitted there was no admission by the accused to penetration of [IAC] in that conversation and that conversation was also denied by the accused.

In my opinion, [defence counsel's] submission that this proposed evidence was not capable of being admitted as tendency evidence due to a lack of specific reference to penetration is misconceived.[126]

154 The judge then dealt with submissions about the possibility of collusion between IAC and SG, concluding that, on the chronology of statements and VARES, 'the possibility of collusion/concoction or innocent infection' was not raised.[127] The judge concluded:

In my opinion, this evidence is relevant to a fact in issue in this trial.

Further, in my opinion, this proposed tendency evidence has significant probative value and is capable of showing a sexual interest in [IAC] by the accused. This proposed evidence is also independent of [IAC] - ie, comes from another source - precedes any allegations made by [IAC] in her second VARE of such acts/conversations between she and the accused. Despite [IAC] admitting to friends she lied about some of her allegations, there is other evidence that is reliable. The proposed evidence is reliable.

This evidence, in my opinion, also substantially outweighs any prejudicial effect it may have on the accused. Directions will be given to the jury to ensure that there is not impermissible reasoning by them in relation to that evidence.[128]

155 The applicant did not make any complaint in this Court about the admission of this evidence as tendency evidence in respect of all five charges. For the sake of completeness, we should say that we see no error in the judge concluding that SG's evidence of her conversation with the applicant (if accepted) strongly supported proof of the tendency alleged against the applicant (sexual interest in respect of IAC and willingness to act upon it).[129]

156 While evidence from a complainant showing an accused's sexual interest can generally have limited (if any) capacity to rationally affect the probability that the complainant's account of charged offences is true,[130] an inclination on the part of a mature adult to engage in sexual conduct with an under aged girl and a willingness to act on that inclination is unusual as a matter of ordinary human experience.[131] In the present case, there was a substantial body of evidence (in the form of evidence from IAC, SG and the various electronic communications tendered at trial from the accused to the complainant) that supported the tendency alleged by the Crown - namely, a tendency for the applicant to have a sexual interest in the complainant and a willingness for him to act on that interest. Moreover, IAC's evidence of the applicant's tendency was supported by SG's evidence, and also by the tendered electronic communications. Additionally, and contrary to the applicant's submissions, it was not necessary that each discrete piece of IAC's evidence be supported from a source independent from IAC before it could be admitted as tendency evidence.[132]

157 SG's evidence about her conversation with the applicant (particular B.3) and the other evidence about which complaint was made in this Court (if accepted) made it significantly more likely that the applicant committed the acts of sexual penetration with which he was charged. As we have already said, that evidence established the tendency upon which the Crown relied, and that tendency strongly supported the proof of the penetrations that were the disputed elements of the charges for which the applicant was tried.

158 The applicant's argument that the impugned evidence should not be admitted as tendency evidence was limited to an argument about compliance with s 97(1)(b) of the Evidence Act. No argument was advanced that if the evidence had significant probative value within the meaning of s 97(1), then it should not be admitted because its probative value had not been shown to substantially outweigh any prejudicial effect it may have on the accused.[133] The judge gave detailed directions, instructing the jury that each charge was required to be considered separately, how the tendency evidence could be used and that the tendency evidence could not be used for any purpose other than that identified by her Honour. No issue was taken below or in this Court about those directions. As we have already said, the tendency evidence strongly supported the proof of the disputed sexual penetrations by the applicant. For the sake of completeness, we should record our conclusion that the evidence also substantially outweighed any prejudicial effect on the accused - the risk of unfair prejudice having been dealt with by the judge in her directions to the jury.

159 While we would accept the respondent's concession that ground 1 is sufficiently arguable to justify a grant of leave, for the reasons given above, we would reject ground 1.

Ground 2: whether the repeated use of the word 'rape' made the trial unfair

160 The charges the applicant faced at trial were charges of incest. On the complainant's account, the applicant engaged in acts of sexual penetration without her consent and in the face of her physical resistance. In respect of charges 3, 4 and 5, the complainant described each of the charged acts as a 'rape' - a word she defined as meaning 'forcing someone to have sex'.

161 In the prosecutor's opening, the prosecutor opened the case as a case involving five charges of incest, before saying:

[IAC] alleges that over the period of time of around nine months from December 2013 to September 2014 her stepfather, the accused, raped her five times; twice digitally and then raped her vaginally and anally.

162 Immediately, it may be observed that while the complainant described charges 3, 4 and 5 (which were penile penetrations) as rapes, she did not do so with respect to the digital penetrations constituting charges 1 and 2.

163 In her opening, the prosecutor did not make any express statement that the case was not a rape case, or that 'rape' was merely a word used by the complainant to describe what had happened to her in relation to particular charges. No complaint was made about the use of the word 'rape' by defence counsel. The judge was not asked to give, and did not give, any direction about the matter. Indeed, as Priest JA has noted, the trial proceeded with the word rape being used on many occasions by both the prosecutor, defence counsel and the judge, culminating in the statements made by the judge in her charge that are referred to in Priest JA's reasons for judgment.

164 While it would have been preferable if, at trial, closer attention had been paid to the use of language appropriate and relevant to the charges the applicant faced, and while the judge's reference in her charge to incest being 'the official charge' and her Honour's reference to 'alleged rapes in charges 3, 4 and 5' were not ideal, in the absence of any objection by trial counsel for the applicant (who was immersed in the atmosphere of the trial) and in the absence of the applicant's trial counsel seeking a clarifying or corrective direction, we are not persuaded that the references to 'rape' about which the applicant now complains gave rise to an error or an irregularity in, or in relation to, the trial, or that there has been any resultant miscarriage of justice.[134]

165 It may be that the applicant's trial counsel took no steps to limit the use of the word 'rape' at trial because he saw no point in doing so having regard to the fact that, on the complainant's evidence, each occasion on which the applicant penetrated the complainant was a rape and, in the circumstances, nothing of moment was to be gained from taking an objection or in highlighting the fact that the complainant actively resisted the applicant. Equally, it may be that the applicant's trial counsel perceived there was some advantage in the repetition of the complainant's version that she had been raped.

166 In final address, the applicant's counsel referred to the complainant's evidence about 'excuses and reasons for not telling' various people various matters. Counsel said:

Now, you will also note that her reasons change at each point - for different people she has different excuses. She has excuses when she gets things out of order. She has reasons for not mentioning events and she mentioned them for the first time in cross-examination. Then she gives reasons that she thought this may be normal activity with her father considering, bearing in mind that's one of the reasons she gives why she didn't tell anyone, because in her mind she thinks that this is what fathers do. She talks to her friends. She tells them about other things like wrestling, dacking about what happened to her in [primary school]. Surely, members of the jury, she cannot be thinking that this is just something fathers do. She knows about the term 'rape'. She knows it from her experiences in [primary school].

167 Counsel's argument was that the complainant's account of rapes which she did not tell others about because she thought that 'this is what father's do' was not credible and should not be believed. This may explain why no objection or corrective direction was sought at trial by the applicant's trial counsel. Moreover, while different minds might cavil with the course taken by trial counsel, it cannot be said that such a thought process was irrational to the point of producing a substantial miscarriage of justice.

168 In the result, we accept that ground 2 is sufficiently arguable to justify a grant of leave. Greater care should have been taken at trial to ensure that there was no capacity for the jury to be prejudiced by the unnecessary use of the word 'rape'. In a perfect trial, the trial judge would not have referred to incest as being 'the official charge' or to 'alleged rapes' in any of the charges. As has been said before, however, parties are entitled to a fair trial - not a perfect trial. While, as we have said, there should be a grant of leave on ground 2, ultimately we would reject this ground.

• leave to appeal should be refused on grounds 3 and 4; and
• while leave to appeal should be granted on grounds 1 and 2, the appeal should be dismissed.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Crimes Act 1958, s 44(1).

[3] Following his conviction by the jury, on 6 April 2016 the applicant pleaded guilty to two further charges on a separate Indictment of possessing child pornography. On 11 November 2016, the judge imposed individual sentences of six years' imprisonment on charges 3 and 4, five years' imprisonment on charges 1, 2 and 5, and 60 days' imprisonment on the two child pornography charges. With orders for cumulation, the judge arrived at a total effective sentence of 10 years, 4 months and 28 days' imprisonment. A non-parole period of 7 years was fixed.

[7] As will become clear, in her final address the prosecutor also repeatedly asserted that the applicant had 'raped' the complainant, a description that was adopted by the judge in her charge to the jury.

[8] See Criminal Procedure Act 2009, s 370.

[9] Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.

[10] Exhibits A and B (for identification). The events founding charges 1 and 2 were described in the VARE conducted on 24 July 2015 (Exhibit B), and those founding charges 3, 4 and 5 were described in the VARE of 7 October 2014 (Exhibit A).

[14] Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187, 206 [70] (Gageler J) ('Hughes').

[15] Ibid. See also [40] below.

[16] Murdoch (a Pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451, 471 [81] (Priest JA) ('Murdoch'). See also Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323, 398 [359]-[360] (Bathurst CJ, Hoeben CJ at CL and Simpson J).

[17] See [29] below.

[18] See [20] above.

[19] Counsel cited Knowles (a Pseudonym) v The Queen [2015] VSCA 141.

[20] IMM v The Queen (2016) 257 CLR 300 ('IMM').

[21] As to the directions necessary with respect to other misconduct evidence, see Division 2 of Part 4 (ss 25 to 30) of the Jury Directions Act 2015.

[23] Tendency Notice, item C.5, ground 1(a).

[24] Tendency Notice, item B.5, ground 1(d).

[25] Tendency Notice, item B.6, ground 1(b).

[27] Tendency Notice, item C.5, ground 1(a).

[28] Tendency Notice, item B.5, ground 1(d).

[29] Tendency Notice, item B.2, ground 1(c).

[30] Tendency Notice, item B.3. The admissibility of this evidence is not challenged.

[31] Tendency Notice, item B.6, ground 1(b).

[32] Tendency Notice, item C.5, ground 1(a).

[33] See [34] above.

[34] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[36] See Semaan v The Queen [2013] VSCA 134; (2013) 39 VR 503, 510-11 [36]-[38] (Priest JA). Compare JLS v The Queen (2010) 28 VR 328, 333 [18] (Redlich JA) ('JLS').

[37] See [21] above.

[38] Hughes, 206 [70]-[71] (emphasis added). See also Bauer (a pseudonym) (No 2) v The Queen [2017] VSCA 176, [53] (Priest, Kyrou and Kaye JJA) ('Bauer').

[39] Saks and Spellman, The Psychological Foundations of Evidence Law, (2016) at 151.

[40] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 385; [1936] HCA 23, quoted in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294; [1988] HCA 50; 81 ALR 225 at 227.

[41] See R v GAE [2000] VSCA 18; (2000) 1 VR 198, 206 [21]-[22]; R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, 503; R v Vonarx [1999] 3 VR 618, 625; R v Loguancio [2000] VSCA 33; (2000) 1 VR 235, 239-41 [12]-[14].

[42] See Jury Directions Act 2015, s 27.

[43] Colquhoun v The Queen (No 1) [2013] NSWCCA 190, [20]-[21] ('Colquhoun'). See also, Evidence Act 2008, s 95; Jury Directions Act 2015, s 29.

[44] Colquhoun, [21]; WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406, 412 [38](5) ('WFS'). See Jury Directions Act 2015, s 27. See also Ritchie v The Queen [2018] VSCA 31, [39] ('Ritchie').

[45] WFS, 412 [38](8)(b). See Jury Directions Act 2015, s 27; Ritchie, [39].

[46] See [50] below.

[47] Ibid, 317-8 [60]-[64] (emphasis added).

[48] Hughes, 190 [2] (Kiefel CJ, Bell, Keane and Edelman JJ).

[49] Ibid 203 [57]-[58] (emphasis added to this and following passages).

[50] See Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680 ('Velkoski').

[52] [2009] NSWCCA 306; (2009) 201 A Crim R 451 at 485 [125] [(2009) [2009] NSWCCA 306; 273 ALR 286, 316 [125]].

[53] These words emphasised in original.

[57] Thu v The Queen [2017] VSCA 28 (Redlich, Beach and McLeish JJA) ('Thu').

[59] Gentry v The Queen (2014) 244 A Crim R 106 ('Gentry').

[61] Thu, [38]-[39] (emphasis added).

[66] See Hughes, 192 [12], 197 [32], 198 [34], 198 [37], 199 [39], 200 [42].

[67] Murdoch, 473 [88] (Priest JA).

[69] Murdoch (a Pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451.

[70] JLS v The Queen (2010) 28 VR 328 (Redlich, Mandie and Bongiorno JJA) ('JLS').

[73] For example, see R v AH (1997) 42 NSWLR 702, 708-9; R v Lock (1997) 91 A Crim R 356; R v Fordham (1997) 98 A Crim R 359, 367; Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, 233 [97]; R v Toki (No 3) [2000] NSWSC 999; (2000) 116 A Crim R 536, 540-1 [24]-[26].

[74] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610, 624 [42].

[76] For example, see Steadman v The Queen (No 1) [2013] NSWCCA 55, [10]; Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463, 487 [80].

[77] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545 ('Leonard').

[78] R v AH (1997) 42 NSWLR 702.

[79] Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463 ('Qualtieri').

[80] Leonard, 556 [48]-[52] (emphasis added).

[81] Qualtieri, 493-4 [115]-[120] (emphasis added).

[83] See [20] above.

[84] Hughes, 197 [32]. See also Ritchie, [40].

[85] At [62] above.

[86] See [47] above.

[87] R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286 ('Ford').

[88] Ibid, 316 [125] (Campbell JA, Howie and Rothman JJ agreeing).

[90] See Crimes Act 1958, s 38(2), as in force between 1 December 2013 and 30 September 2014.

[91] Crimes Act 1958, s 44(1).

[92] Crimes Act 1958, s 44(5).

[93] See [11] above.

[94] See [5] above.

[95] See [11] above.

[97] See [105] below.

[98] For example, see [11] above.

[99] Cf Jury Directions Act 2015, s 16.

[102] Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 57 (Deane J) ('Jago').

[105] Ratten v The Queen (1974) 131 CLR 510, 517.

[106] R v Birks (1990) 19 NSWLR 677, 703-4.

[107] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 637 (Gaudron ACJ, Gummow, Kirby and Hayne JJ).

[108] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson and Toohey JJ); Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330 (Brennan J).

[109] Xypolitos v The Queen [2014] VSCA 339; (2014) 44 VR 423, 428 [25].

[110] Allen (a pseudonym) v The Queen [2016] VSCA 59, [74] (Maxwell P, Redlich and Priest JJA).

[111] Ibid, [77]. See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 151 [81] (McHugh J).

[112] In a different context, see R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408, 410-11 [4] (Ormiston JA).

[113] See R v Grech [1997] 2 VR 609, 612 (Callaway JA).

[114] Section 375 was repealed by s 13(1) of the Jury Directions and Other Acts Amendment Act 2017 (No 37 of 2017).

[115] Emphasis added to this and the following passage.

[116] See Clarke v The Queen [2013] VSCA 206.

[117] Not counsel who appeared in this Court.

[118] While the tendency notice also contained columns headed 'Time', 'Place' and 'Witness(es)', it is not necessary to repeat the material in those columns in these reason.

[119] Cf IMM v The Queen (2016) 257 CLR 300, 318 [62] ('IMM').

[120] See ss 97(1)(a), 99 and 100 of the Evidence Act 2008.

[121] [2017] VSCA 386 ('Thrussell').

[123] IMM v The Queen (2016) 257 CLR 300, 312 [39].

[124] Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187, 199 [39]-[41] ('Hughes').

[125] DPP v [Packard] (Unreported, County Court of Victoria, Judge Pullen, 18 February 2016) ('Ruling').

[129] Hughes [2017] HCA 20; (2017) 344 ALR 187, 199 [41].

[130] IMM (2016) 257 CLR 300, 318 [63].

[131] Hughes [2017] HCA 20; (2017) 344 ALR 187, 203 [57] (although the plurality in Hughes referred to 'under aged girls' in the plural, the same must be true of the singular).

[132] Hughes [2017] HCA 20; (2017) 344 ALR 187, 199 [40]; Thu [2017] VSCA 28 [38].

[133] Evidence Act 2008, s 101(2).

[134] Criminal Procedure Act 2009, s 276(1)(b).