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[2006] NSWCCA 95
Court of Criminal Appeal (NSW)
2006-01-25
McClellan CJ, Howie J, Latham J, Clellan CJ
Original judgment source is linked above.
CITATION: QUALTIERI v REGINA [2006] NSWCCA 95 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 111; Latham J at 124
DECISION: 1. Appeal allowed; 2. Convictions and sentences quashed; 3. Retrial ordered
CATCHWORDS: CRIMINAL LAW - appeal against conviction - sexual offences - person under the age of ten years - assault - acts of indecency - sexual intercourse - whether erroneous admission of evidence - whether miscarriage of justice occurred - probative value - unfair prejudice - erroneous directions - rule 4 - whether prejudice resulting from not being able to cross-examine - evidence of uncharged incidents - relationship evidence - context evidence - tendency evidence - propensity evidence - guilty passion - unreasonable verdicts - motive to lie - unreliability - inconsistency
LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995
BRS v The Queen (1997) 191 CLR 275 Gipp v The Queen (1998) 194 CLR 106 R v AH (1997) 42 NSWLR 702 R v ATM [2000] NSWCCA 475 CASES CITED: R v Dann [2000] NSWCCA 185 R v Fletcher [2005] NSWCCA 338 R v Fraser (NSWCCA unreported 10 August 1998) R v Guildford (2004) 148 A Crim R 558 R v RTB [2002] NSWCCA 104 R v Skaf (2004) NSWCCA 74
PARTIES: Rocco Qualtieri (Appl) The Crown
COUNSEL: P Boulten SC ( Appl) D Frearson SC (Crown)
SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
IN THE COURT OF CRIMINAL APPEAL 2005/1859
McCLELLAN CJ at CL HOWIE J LATHAM J
TUESDAY 4 APRIL 2006 QUALTIERI, Rocco v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant was charged on 5 counts including offences of a sexual nature allegedly committed on BF. He pleaded not guilty and although acquitted on count one he was convicted on the other counts. He appeals his conviction. The counts were as follows:
Count One That he, between 1 December 1997 and 31 December 1998, at Marrickville in the State of New South Wales, did incite BF, a person under the age of ten years, namely, either three years of age or four years of age to commit an act of indecency towards him. The offence was charged under s 61(O)(2) of the Crimes Act 1900 for which the maximum penalty is seven years imprisonment.
Count Two That he, between 1 December 1997 and 19 May 1999, at Marrickville in the State of New South Wales, did assault BF, a person under the age of ten years, namely, either three years of age or four years of age, and at the time of such assault did commit an act of indecency on her. The offence was charged under s 61(M)(2) of the Crimes Act 1900 for which the maximum penalty is ten years imprisonment. This count was amended at the trial and the date 1 December 1997 was replaced with 1 August 1996 and the age of the victim was specified as "between the ages of two years and four years."
Count Three That he, between 1 December 1997 and 19 May 1999 at Marrickville in the State of New South Wales, did have sexual intercourse with BF a person under the age of ten years, namely, either three years of age or four years of age. The offence was charged under s 66A of the Crimes Act 1900 for which the maximum penalty is twenty years penal servitude. This count was also amended in the same manner as count two.
Count Four That he, between 1 February 1999 and 31 December 2000 at Marrickville in the State of New South Wales, did assault BF, a person under the age of ten years, namely between the ages of four years and six years, and at the time of such assault did commit an act of indecency on her. This count was charged under s 61M(2) of the Crimes Act 1900 for which the maximum penalty is ten years imprisonment.
Count Five That he, between 1 February 1999 and 31 December 2000, at Marrickville in the State of New South Wales did have sexual intercourse with BF, a person under the age of ten years, namely between the ages of four and six years. This count was charged under s 66A of the Crimes Act 1900 for which the maximum penalty is twenty years imprisonment. 2 The appellant was sentenced as follows:
In relation to counts two and four: imprisonment for two years and six months commencing on 14 October 2004 and expiring on 13 April 2007, with a non-parole period of 18 months to expire on 13 April 2006.
In relation to counts three and five: imprisonment for five years commencing on 14 October 2004 and expiring on 13 October 2009, with a non-parole period of three years to expire on 13 October 2007.
The facts Background 3 The complainant BF was born on 19 May 1994 and is the daughter of the appellant and CF (the mother). The appellant and the mother commenced a relationship in late 1989, the appellant having recently separated from a previous marriage. The appellant has a twenty-two year old daughter from that previous marriage. 4 Since at least 1989 the mother has lived with her mother, MF (the grandmother), her sister R, and R's children. The house is divided into three flats. One is occupied by the grandmother, the other by R and her children, and the third is occupied by the mother and the complainant. 5 Up until when the complainant was about two years of age the arrangement between the mother and the appellant was that the appellant would stay at the mother's flat most nights of the week. However, the appellant had a job at Flemington markets which required him to get up at about 3 am causing disruption to the family. Accordingly, arrangements were changed and from approximately 1996 until late 1999-2000 he visited about 3-4 nights per week. By late 1999-2000 the sexual relationship between the appellant and the mother was over. The arrangement from that time on was that the appellant visited on Monday evening, primarily to see his daughter. 6 The complainant's schooling history was as follows:
August 1996 to December 1998 - Shelley Bear pre-school, Marrickville 1999- St Bridgets Primary school - kindergarten Miss Rooney 2000 - St Bridgets Primary school Grade 1 - Miss O'Neill 2001 - St Bridgets Primary School Grade 2 - Miss Caruso 2002 - St Bridgets Primary School Grade 3 - Miss Carruthers. 7 In July 2001, the mother and a friend, the complainant and the appellant went on a holiday to Bali. The complainant had invited the appellant to join the holiday which apparently passed without incident. 8 On 20 October 2002 the appellant left Australia to visit the United States. On 27 October 2002 the complainant reported some of the matters in respect of which the appellant has been charged to her mother for the first time. The mother reported the complaints to DOCS. On 12 November 2002 the complainant gave a statement to the police which was video recorded. She gave a second statement to the police on 6 March 2003. By the time the appellant returned to Sydney an apprehended violence order had been taken out prohibiting him from seeing the complainant and he has not had contact with her since before he left for the United States. 9 At the time the complainant was first interviewed she was eight years of age. She started giving evidence at the trial on the day of her tenth birthday. Her evidence in chief was mainly comprised of the statements which had been video recorded although she gave some supplementary evidence and was cross-examined.
The complainant's evidence Count One 10 The complainant identified the time at which the first count allegedly occurred by reference to her pre-schooling. She said that "it started when I was at Shelley Bear pre school;" she said that the incident happened after pre-school that day. He said for me to touch my vagina, but I didn't, and then he said, come here." The complainant said that she did not touch her vagina because "I knew he was going to do something bad." She said that the appellant said to her "you will feel good when you touch it … I didn't do it … and he said come here and instead of moving two steps forward, I moved two steps back and then I just ran out the door. And then after that I slammed the door, then I went down to my mum." 11 The complainant said that her mother was at the back of the house making baskets, which she did for a living. The complainant said she was wearing slacks and a mini dress. She said that she did not tell anyone about this incident until after the appellant had left for America because "I was really scared." She said she was "scared to tell my mum because she might get angry with me … I was afraid at the time, so I didn't tell her." She also said "I knew he was going to touch me; I knew he was going to touch me … (because) he went like that for me to come to him." She also said "I was going to come to him and then I knew … so then I didn't come to him; I knew (he was going to touch me on my vagina) because he was leaning as if he wanted to, his expression, that's how I knew straight away he was going to try." She said his expression was like he wanted to touch me and she said that she had seen that expression a couple of times.
Counts two and three 12 These counts arise from the same alleged event. The complainant said that on one occasion the appellant walked into the toilet in the self-contained flat whilst the complainant was pulling up her pants and flushing the toilet. She says that the appellant knelt down on the floor in front of her grabbed her tightly and pulled her pants down and placed his penis next to the complainant's vagina. She said he moved up and down and around until it was "slimy, wet and oily." 13 She said that the appellant's "willy was fat" and "it was really fat, soft as well. Cause I remember one time I didn't know what it was, I didn't know cause I was like about three or something like that, I didn't know what it was so I went and played with it, and started feeling it and it felt really soft. It was big, it was fat; it had a hole in the middle." 14 When recounting that the appellant's penis had slimy stuff on it the complainant said "it was all slimy and yukky - it was yuk I felt like vomiting it was all yukky, wet and oily and felt yukky where the hole was and around it." The complainant said that after the appellant left she got into the sink and washed herself. She said she got into the base of the sink and started splashing and started washing. 15 The complainant also said at this time the appellant "put his finger (in my vagina)." She said this incident happened when she was about three years old. She said she could not remember what time of day it was but thought it was in the afternoon. She said "I was in nappies … I think I was wearing a dress … I was wearing pull ups." She said she used to pull them down and I used to go to the toilet and then used to pull them back up. She said she finished wearing pull ups when she started at kindergarten but used to wear them when she was at Shelly Bear. 16 The complainant said she did not tell anyone about the incident at the time because she was scared. She said she told her father to stop it and she did not like it. She said that she was angry with her father about the matter and had stamped her feet. She said she knew that her father had put his finger inside her vagina because it hurt her. "It felt sore and it hurt me a lot." She said that he put his finger and rubbed her vagina softly at first rubbing in circles and then up and down." Then he rubbed it in and out and when he rubbed it in, like when he put his finger in it really hurt me."
Count Four 17 The complainant's evidence in relation to this matter was contained in her second statement. This statement was made after her grandmother had reported the event but was not offered by the complainant when first recounting the events. 18 The complainant said that this event happened when she was in her grandmother's lounge room after dinner. Her father was present and told her to come and sit on his lap. The complainant said she did this and her father put a pillow on top of her. At this stage the complainant said her grandmother walked into the room and sat down. She said her father was sitting on the edge of the lounge and "he went in my pants and he started feeling my vagina. He started playing with it." The complainant says that her grandmother then told the complainant to come to her. She said that the appellant then quickly took his hands out and made he was scratching his nose "but he actually smelt his hands." 19 The complainant says that the appellant had warned her not to tell anyone about what had happened and that she was scared that if she did her father would smack her. She also gave evidence of fearing punishment from her mother if she found out.
Count Five 20 The complainant gave evidence that when she was in first grade (in Miss O'Neil's class) one Monday she was sitting on the appellant's lap when he put his hand inside her pants and started "moving his hand up and down and all around." She said that the appellant put his finger inside her vagina which hurt a lot. She said the incident happened after school when she was wearing her school uniform and her mother was working at the back of the house. She said she tried to break free and whacked him on the hands. She said that he rubbed her vagina for about 10 to 15 minutes.
Other Evidence given by the complainant 21 Apart from the evidence specific to each individual charge the complainant gave evidence of a visit, (with her mother) to Dr Lydia Kovach when she had a sore throat in late 1999. She said that while she was there she refused to allow Dr Kovach to examine her genital area. The complainant said she did not want this to occur because her vagina was red and sore because the day before the appellant had rubbed "his willy around her vagina." This was identified as relating to the alleged incident in the toilet. The complainant also gave evidence that she did not like having conditioner put through her hair because it reminded her of "Dad's slime." 22 In her evidence the complainant also expressed her feelings of animosity towards the appellant. She gave evidence that he used to "bite me and kiss me on the cheek and it really used to hurt because he squeezed me so tight I had the feeling he was going to kill me." 23 The complainant also gave evidence of an incident when money was taken from her and she blamed her father for this occurring. She said "he just likes taking money from me. He is a big liar and he just likes money and he likes taking it from me cause he is always … he has never been a good father to me." The complainant said that she believed that the appellant had never loved her or done anything for her. She said her mother had told her of an occasion when her mother had given the appellant $50 to buy nappies but instead of buying the nappies he went out to an hotel and bought himself a drink and never paid her mother. She says as a consequence she did not have a nappy to change into. 24 The complainant said that she believed that the appellant wanted to kill her giving evidence that "he used to have a very angry expression on him." She said there was a chair he liked sitting in all the time and he just sat there and "had a very angry expression on, like, a very angry and mean expression on him like he wanted to kill me and I didn't like that at all." 25 When the complainant was cross-examined she agreed that a young boy who lived nearby used to bite her on the cheek which hurt her. She also indicated that when she gave her statements to the police she believed that her father had taken money from her bedroom cupboard. She accepted that she continued to believe this even after her mother had told her that her father had not taken it. She indicated that she believed that her father never cared for her or loved her and had done nothing for her. One of her reasons for believing this was that her father did not live with her and her mother. 26 The complainant also accepted that she had told the police that her father used to try to kill her but this was not true. She said although she told the police officer that her father used to try to stab her this was also an exaggeration. She said that although she had told the police officer that her father had stopped doing things to her since Ms O'Neill's class (2001) she was still scared of her father in November 2002 because she thought he might do it again as she never knew what was going to happen next. 27 Dr Kovach gave evidence and confirmed that the complainant and her mother had attended her surgery on 16 December 1999 when the complainant was suffering from tonsillitis and a fever. She said that as a result of something which the mother had said to her she went to examine the complainant's genital area but the complainant would not allow this to happen. 28 When cross-examined Dr Kovach agreed that there could be a number of reasons why a young girl, of about five-six years of age, may have a red, itchy vaginal area which could include poor hygiene, vaginal infection, irritation caused by soaps and creams or due to the child playing with herself. She also agreed that it was not unusual for children between the ages of three to six years to play with their genital area as this was part of their normal self-discovery process.
The evidence of the mother 29 The mother gave evidence. She confirmed that after the complainant was born there was an informal arrangement whereby the appellant would visit three to four times per week which by late 1999-2000 had become every Monday evening. She began her basket making business in December 1997. After that time the usual routine was that the appellant would visit from approximately 4 pm and spend a few hours with the complainant (whilst the mother was working at her basket making). They would have dinner together at approximately 6 pm and the appellant would stay for a few more hours and then go home. The mother confirmed that the complainant believed that the appellant had taken money from her bedroom although the mother had told her this was not the case. However, the mother said there was an incident involving the appellant taking a money box which had upset the complainant. She said that she had never said anything to the complainant which would have made her conclude that her father did not care for her or love her. She said, contradicting the complainant, that the appellant had never hit the complainant with a belt. 30 The mother also confirmed that the complainant had contracted nits in 2001 for which treatment had been applied to the complainant's hair. She also confirmed that she had noticed that the complainant had a red vagina and that on the doctor's advice had applied creams but the redness returned. She confirmed that the complainant had refused to let Dr Kovach examine her genital area. 31 The mother also confirmed that the reason the complainant gave for not liking conditioner being put through her hair was because it reminded her of "Daddy's slime." This was said to have been said by the complainant in December 2002. The mother said that she had never discussed with the complainant the reasons why she and the appellant were not living together. She said she believed the complainant understood the reasons and did not believe there was any need to explain the nature of the relationship to her.
The appellant's case 32 The appellant gave evidence and denied all of the allegations. He said that he had never bitten the complainant on the cheek, nor anywhere else and he had never hit her with a belt. He said that the complainant had invited him to join the family on the trip to Bali in 2001. He said that the complainant had contracted nits at school and had told him that the reason she did not like having her mother putting conditioner through her hair was because it reminded her of the nits treatment. 33 The appellant said that he was completely unaware that the complainant did not like him or believed that he did not love her and that he became aware of this only when he read a transcript of her statements to the police. He said that he had explained to the complainant why he and her mother did not live together. 34 He also gave evidence of his observations of the bites which the boy had made to the cheek of the complainant which he observed to have left marks on her face for a few days. 35 The appellant also gave evidence of the good relationship which he had with his other daughter from his previous marriage. That daughter gave evidence. At the time of the trial she was twenty years of age and stated that she had a good relationship with her father with whom she had kept in regular contact since her parents' separation. She said that she was shocked by the nature of the allegations which she had read and said that she did not believe that her father could have done such a thing. She said that he had never done anything of that nature with her. Other evidence was given of the appellant's good character. 36 Evidence was also tendered of reports from the complainant's schools. These reports indicated that during the relevant years the complainant was a happy, well adjusted, friendly child and there was no indication of any trauma or anxiety arising from sexual abuse or any other cause.
The appeal 37 There are two grounds of appeal although each ground has a number of limbs.
Ground One 38 Under this ground the appellant alleged there was a miscarriage of justice resulting from the trial judge's erroneous admission of evidence, erroneous directions to the jury and an unbalanced summing up of the defence case. It was submitted that these errors related to significant issues in the trial which have resulted in the appellant having lost "a real chance of acquittal" causing a substantial miscarriage of justice, so that the proviso under s 6(1) should not be invoked. 39 Four matters are advanced. I shall deal with each matter in turn.
Appellant's submissions 67 It was submitted that by the end of the process undertaken by the trial judge, the jury would have been, at best, totally confused as to the significance and probative value of this "relationship evidence." At worst, it was submitted the jury would have been under the mistaken belief that its significance or probative value was the same as the evidence relied upon by the Crown to directly prove each charge. That is, its significance or relevance had been elevated to the very level it should not have been. It was submitted that there was no need for the trial judge to have referred to such evidence in the detail that he did. By this stage, the jury was already aware of the specific evidence relied upon by the Crown in relation to each charge - the Crown Prosecutor having gone through this evidence in the complainant's two statements in some detail in his closing address (when the jury had transcripts of the complainant's statements and oral evidence). Such detail and repetition from the trial judge would only have emphasised the significance of this extremely prejudicial evidence, instead of ensuring that the jury had a proper understanding of its legal significance. 68 It was also submitted that the trial judge erroneously categorised to the jury some evidence as being "relationship evidence". The following passages are referred to: "There is evidence that the complainant's mother appeared to be the sole carer, - this is more relationship evidence - that the accused was her natural father but resided in other premises, although would visit, at least towards the end, on Monday evening and some Sundays. There is evidence these events, with one exception, happened on occasions when only the accused and the complainant were in the same room. There is evidence which, while it does not amount to supporting evidence because it comes from the behaviour of the complainant and not from some source completely independent of the complainant, may also be relevant to the relationship evidence. You will recall the complainant's behaviour in conversation with her mother in respect of the application of hair conditioner during a shower at a friend's unit. The only use you can make of that particular evidence is that it is consistent with her other evidence of sexual activity by the accused with her. It is not evidence which otherwise contributes to the proof of any element of any of the five specific offences that have been charged." 69 It was submitted that this erroneous categorisation of what was really corroborative evidence as "relationship evidence" would have further confused the jury as to its nature and significance. More importantly, it would also have resulted in the jury using it for the very purpose they should not have. 70 It was also submitted that the trial judge misdirected the jury when he told them that the ways in which they could use such evidence was (1) to draw inferences (against the accused) and (2) as impacting upon the complainant's credibility when his Honour directed the jury that: "If you are satisfied that the accused did harbour sexual feelings or passions for the complainant, that fact may well make more credible the complainant's evidence that sexual activity took place on the occasion and in the circumstances of the particular charge you are considering." 71 It was submitted that this last direction clearly misstated the probative value of the "relationship evidence" and caused an injustice to the accused. Ironically, it was submitted such a direction would have led the jury to commit the very error the trial judge had warned them about when he told them (at para [115] of the summing up): "You cannot let any of the relationship evidence slip over and merge or blur the lines with the offences that you are dealing with."
Consideration of the problem 72 The admission of evidence of a sexual relationship between a complainant and an accused other than evidence of the particular acts charged has caused difficulties in many cases. The origin of those problems lies in the difficulty which is sometimes experienced in categorising the purpose for which the evidence is tendered. Is it evidence tendered only for the purpose of throwing light upon the relationship at the time of the events which led to the offence (ie relationship evidence) or is it admitted as evidence of the sexual desire or feeling of the accused for the complainant (ie tendency evidence)? It is necessary to clearly identify the purpose of the tender so that its admissibility can be properly considered and appropriate directions given. 73 Evidence of a sexual relationship beyond the matters charged may have a powerful influence on a jury's verdict. It will most likely reflect sexual desire in the accused for the complainant making it essential that the relevant provisions of the Evidence Act are identified and applied and appropriate directions are given in a manner which ensures there is no misunderstanding by the jury of the part the evidence can legitimately play. Because of its potential prejudice the risk of a trial miscarrying may be greater when the allegation relates to sexual acts involving children than sexual acts between adults. 74 In R v AH (1997) 42 NSWLR 702 this Court gave consideration to the relevant principles. Ireland J with whom Hunt CJ at CL expressed "complete concurrence" said at 708-9: "Prior to the Evidence Act 1995 , and in R v Beserick (1993) 30 NSWLR 510 at 515 , this Court held, on the basis of respectable authority, that evidence of conduct with a sexual connotation between the complainant and the accused other than that which is the subject of the offence or offences charged is relevant in two different ways:
(a) the relationship revealed may place the evidence of the events which give rise to a particular charge into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated: B v The Queen (1992) 175 CLR 599 at 610 (see also at 602-603); and
(b) the guilty passion of the accused revealed - or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant - is directly relevant to proving that the offence charged was committed: R v Ball [1911] AC 47 at 71 ; see also Pfennig v The Queen (1995) 182 CLR 461 at 526 .
The evidence - once admissible for either or both of those purposes - will also necessarily make the complainant's evidence more credible in relation to the events upon which the charges were based.
Where the Crown introduces the evidence for the former purpose, it is not tendency evidence, and the requirements of s 97 and s 101 are irrelevant: R v Harvey (Court of Criminal Appeal, 11 December 1996, unreported) at 5-6 .Once admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had the guilty passion, he did the act in question unless it does comply with those requirements ( Evidence Act , s 95 ), and the judge should direct the jury that they may not use it in that way unless it does comply. The direction which the judge gave as to the use of this evidence in the present case failed to make that clear. The evidence was nevertheless admissible for the former purpose because it threw light upon the relationship at the time of the events which led to the last of the offences charged. Where the Crown does wish to use the evidence of guilty passion as tending to show that the accused did do the act in question (and thus that the complainant's evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with s 97 and s 101 before it may be used for that purpose. Section 97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence: R v Lockyer (1996) 89 A Crim R 457 at 459 ; R v Lock (1997) 91 A Crim R 356 . In both Harriman v The Queen (1989) 167 CLR 590 at 597-599 and S v The Queen (1989) 168 CLR 266 at 275 , Dawson J has said that evidence of guilty passion, although evidence of propensity (or tendency as the Evidence Act calls it), has a sufficiently high degree of relevance as to justify its admission: see also B v The Queen (at 618), per Dawson J and Gaudron J . If the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that it is of significant probative value.
Section 101(2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person thinks that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of the particular case: Pfennig v The Queen (at 488) . As such evidence is circumstantial in nature, the Crown must establish that there is no reasonable view of the evidence available which is consistent with the innocence of the accused: Pfennig (at 483-484, 485) . That is what is required by s 101(2): R v Lock (at 363) ; R v Foley (Court of Criminal Appeal, 5 June 1996, unreported) at 8 ." 75 These general statements require careful consideration in the circumstances of a particular case and especially in sexual offence matters involving young children. In R v ATM [2000] NSWCCA 475 Howie J stressed the need for the trial judge to explain to the jury the purpose for which the evidence of uncharged acts was admitted and the use which the jury can make of it in its deliberations [75]. Howie J said at [76]-[77]: "Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v A.H, BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; R v R.N.S . [1999] NSWCCA 122. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as "guilty passion" or "sexual interest". Further, generally it will be necessary for the judge to give warnings that they should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment or reason that because the accused may have done something wrong to the complainant on some other occasion that he must have done so on an occasion which is the subject of any charge: R v Greenham , [1999] NSWCCA 8 at [28]-[29] approving the directions given in R v Beserick , (1993) 30 NSWLR 510, and R v Wickham (NSW Court of Criminal Appeal, unreported, 17 December 1991). 76 In Gipp v The Queen (1998) 194 CLR 106 the High Court considered the admissibility of evidence of sexual abuse by the appellant of the complainant other than the acts the subject of specific charges. Admitted as "relationship evidence" the jury had been instructed by the trial judge that there was no need for them to be satisfied beyond reasonable doubt of these background facts. 77 As it happens the High Court divided on the matter and the majority did not speak with a consistent voice. Accordingly, Gipp is not thought to provide a particularly useful discussion of the problem. The matter was addressed by this Court, comprising Mason P, Wood CJ at CL and Sperling J in R v Fraser (NSWCCA, unreported, 10 August 1998) when in a joint judgment, the Court said at [29]-[31]: "In Gipp, where the High Court split three to two, divergent views were expressed as to the circumstances in which relationship evidence might be received, and as to the use to which it might be put. As the three separate majority judgments by Gaudron J, Kirby J and Callinan J have little common ground, it is difficult, if not impossible, to extract any clear ratio from the case. Gaudron J, expressed the view (at 19) that "general evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders it admissible as similar fact or propensity evidence". In the absence of a feature of the kind present in Ball, that made it directly relevant to the question of guilt, then it was admissible only to meet some subsidiary issue arising in the trial to which it was relevant, arising from the way in which the defence case is conducted, for example to explain lack of surprise or failure to complain. Kirby J, who preferred to categorise relationship evidence as tendency evidence, accepted that it could be admitted upon a limited basis (ie, for a purpose other than proving a particular tendency), if its probative value outweighed its prejudicial effect (at 54). In quoting with approval a statement by the Victorian Court of Appeal in Vonarx (Court of Appeal Vic 15 November 1995, unreported at 12-13) that such evidence may be used to enable "the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting". His Honour appears to have accepted the correctness of the statements of Brennan and Deane JJ in B , and of this Court in Beserick, Wickham and AH . Callinan J, at 64, rejected the notion that, there was a "special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible)". His Honour expressly disagreed with the observations of Deane J in BL but made no reference to the parallel observations of Brennan J in that case, or to the classic statements by the High Court as to relationship evidence in Wilson (1970) 123 CLR 334, a decision which has stood unquestioned, and applied in innumerable trials since it was handed down. He may, however, be assumed to disagree at least with the observations of Brennan J, in B , in the light of his disagreement with Deane J in that case. His Honour concluded that if evidence of this kind was to be received, then "it must owe its admissibility to some quite specific, other purpose, including, for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive" (at 64). In their joint minority judgment, McHugh and Hayne JJ, at 35-36, accepted the correctness of the admission of the evidence at first instance in the case under appeal, not as propensity (tendency) evidence but "for the limited purpose of making the circumstances of the specific offences more intelligible", ie, so that the jury "could understand the context of the incidents that were the subject of the charges. Although their judgment makes no reference to the observations of Brennan and Deane JJ in B , it is entirely consistent with those observations, and with the approach which has been hitherto regarded as settled by this Court. In the result, three members of the Court (albeit that two members were in the minority) accepted the admissibility of relationship evidence to set the offences alleged in their context, and to enable the jury to properly evaluate the evidence concerning them. In those circumstances, we are of the view that until the High Court decides otherwise, the law as laid down in AH, Beserick and Wickham , and as declared by Brennan and Deane JJ in B should continue to be applied in this State." 78 As Callinan J said in Gipp there are the dangers in admitting evidence of criminal conduct not the subject of specific charges. His Honour said at 166 that: "The dangers of admitting evidence of criminal conduct not the subject of specific charges are obvious. I am concerned also about the danger of admitting so called 'background' evidence. Its reception, and the need to explain its purpose and utility, have the tendency to introduce into a trial, particularly a criminal trial, undesirable complications, and the notion that there may be various lesser grades of evidence calling for different standards of satisfaction in the minds of the jurors." 79 In BRS v The Queen (1997) 191 CLR 275 McHugh gave this warning (at 305): "It is true, as I pointed out in Pfennig v The Queen (1995) 182 CLR 461 at 523, that there are cases where the interests of justice require that evidence should be admitted even though it reveals that the accused has a criminal or reprehensible propensity. It is also true that in some cases evidence may be admitted even though the sole basis for its admission is that it reveals a criminal or reprehensible propensity on the part of the accused at [526-527] which the Crown will rely on to prove the guilt of the accused. Before evidence revealing such a propensity is admitted, however, the judge, according to numerous decisions of this Court, must be satisfied that the probative value of the evidence outweighs its prejudicial value." 80 To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be - · Identification of the evidence which the Crown seeks to tender and the purpose of its tender. · If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH at 709. · If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial. · If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence. 81 The Supreme Court Bench Book contains a model direction with respect to relationship evidence which is to my mind the appropriate manner in which to instruct the jury. It states: "It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into a true and realistic context. It is confined, in other words, to making the circumstances of the particular offences charged more intelligible. Otherwise, a jury such as yourselves may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, a jury would be entitled to say to themselves, as persons of common sense, well, really, it is very odd for there to be such isolated acts between these persons. Thus, it is open to the Crown to lead evidence of other acts of sexual nature between the accused and [ the complainant ] … [ it is necessary, to explain this direction, by reference to the facts of the particular case]. However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as 'context evidence.' You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged, and, therefore, it cannot be used as an element in the chain of proof of the offences charged. You must not substitute the evidence of the other acts for the evidence of the specific offences charged. You must not reason that, because the accused may have done something wrong to [ the complainant ] on another occasion, [ he/she ] must have done so on the occasions charged. You must give careful consideration to the time frame within which the other acts are alleged to have occurred. The more remote the other sexual activity is, the less will be its weight … [ this direction will require amplification ]. [ Where appropriate If [ the complainant ] was of a young age at the relevant times, this would normally attract a warning under s 165(1)(c) of the Evidence Act 1995 (NSW), where requested … [ see: s 165(2) Evidence Act 1995 (NSW)].]" 82 In the present case, the evidence of which complaint is now made was not the subject of objection at the trial. Perhaps it should have been. At the very least counsel and his Honour should have clearly identified the basis of the tender which, so it now seems, was confined to evidence establishing the nature of the relationship. That evidence of the relationship was relevant to the jury is made plain by defence counsel's criticism of the complainant's evidence in her address to the jury where counsel emphasised the lack of evidence of the complainant reporting the appellant's conduct to her mother or any other responsible adult. However, whether evidence of other sexual activity was necessary or relevant to explain this matter or merely the explanation that her lack of complaint was motivated by fear of the consequences need not be determined. I am not entirely comfortable with the proposition that in order to explain a lack of complaint, evidence of other sexual activity will necessarily be relevant or that its probative value going to the issue of lack of complaint, outweighs the obvious prejudicial value. These matters need not be resolved in this case although they may require attention in other matters when evidence of this character is sought to be tendered. 83 The question which arises in this case is whether, having regard to the fact that the evidence was tendered merely for the purpose of providing the jury with the context in which the charged acts occurred and which would assist them in weighing her evidence, the directions given by the trial judge gave the jury clear guidance as to the appropriate principles. In my opinion they did not. 84 As I have indicated, at the conclusion of the complainant's evidence the trial judge gave the jury directions in which he described the relevant evidence as "what lawyers call relationship evidence" referring to the uncharged sexual acts. His Honour then takes the jury to specific questions and the answers given by the complainant. 85 Problems then emerge as his Honour tells the jury that the evidence is capable of placing "the five offences charged … (in) a true and realistic context." Although this statement is itself unexceptional particularly if there was an issue making the context relevant his Honour then says: "The Crown says that if you take the global view of all the acts, you would find as a fact, that within the accused there was sexual feeling or passion for the complainant, that he was prepared to satisfy." 86 Later, his Honour says: "If you are satisfied that the accused harboured sexual feelings or passions for her, that fact may well make more credible or believable the complainant's evidence of this specific five incidents that appear in the indictment." 87 In both these statements his Honour raised the question of the appellant's sexual desire for the complainant. By so doing his Honour has crossed the line between evidence of the context of the charged acts and evidence raising for consideration the propensity of the appellant to commit those acts. Before this was appropriate, the admission of the evidence as tendency evidence would have to be considered and appropriate and clear instructions given as to its use. 88 It is true that his Honour almost immediately proceeds to give the jury directions which confine the approach which the jury could take to the evidence in a manner consistent with authority. However, to my mind the damage has been done and although it may perhaps have been curable by withdrawal of the problem direction and giving of new directions this was not done. 89 The problem was exacerbated by the direction which the trial judge gave, without further explanation, that relationship evidence may be used to draw inferences (paragraph 123). He then tells the jury that relationship evidence may also be used to impact upon the complainant's credibility (paragraph 124). Provided this is understood as relating to issues which might affect her credibility, lack of complaint, surprise or protest, which should be explained to the jury this statement is unexceptional. However, his Honour then directs the jury's attention to the question of whether the appellant harboured "sexual feelings or passions for the complainant saying "that fact may well make more credible the complainant's evidence that sexual activity took place on the occasion and in the circumstances of the particular charge that you are considering." 90 As with his Honour's earlier remarks by directing attention to the appellant and whether or not he harboured sexual feelings or passions for the complainant his Honour has crossed the line and invited the jury to consider the "relationship evidence" in coming to a conclusion as to the propensity of the appellant to commit the offence. 91 The difficulties are compounded in paragraph 125 where his Honour says that although relationship evidence cannot amount to evidence which directly proves an essential element of the offence it may be "taken into account in the two ways I have indicated." 92 To my mind the problems in the series of directions are such that the convictions must be quashed.
Ground Two - The verdicts on counts two, three, four and five are unreasonable and cannot be supported.
4 The evidence inconsistent with any sexual assault of the complainant by the accused eg the complainant inviting the accused to Bali; the complainant's demeanour as seen on her video statements; the strong evidence of the appellant's good character. 108 Under this ground the appellant emphasised that the inconsistency between the complainant's evidence and other Crown evidence needs to be considered with other evidence allegedly inconsistent with any sexual misconduct by the accused. This included the complainant's conduct in inviting the accused on the trip to Bali in July 2001 during which trip there was no suggestion of untoward conduct by the appellant, the giving of a gift list by the complainant to the appellant before he went to the United States in late 2002 and a lack of any indication of difficulties in the complainant's school reports. The appellant also draws attention to the continued failure to complain to the mother and grandmother and the evidence from the appellant's other daughter that the appellant had never behaved improperly with her. 109 As with the other matters these questions were all matters for consideration by the jury. Neither alone nor together do they provide any foundation for a finding that the jury's verdict was unreasonable.
Orders 110 I propose that the appeal be allowed, the convictions and sentences quashed and that there be a retrial. 111 HOWIE J: I have had the benefit of reading the judgment of the Chief Judge in draft. I agree with the orders he proposes for the reasons given by him. I wish to make some brief observations in respect of Ground 3 that deals with the directions on relationship evidence. 112 It seems to me that one of the problems that arises in respect of "relationship evidence", particularly in child sexual assault cases, is that there is never a clear understanding of what that term means in any given case. As I sought to explain in R v ATM [2000] NSWCCA 475, evidence does not necessarily become admissible merely because it is said to disclose the relationship of the accused and the complainant: it must also be relevant and must not be unfairly prejudicial. Unless the relevance of the evidence is understood at the outset and kept in mind throughout the trial, and particularly during the summing up, there is a real risk that the jury will be misdirected as to how they are to use the evidence. 113 In the present case, with respect, the directions were confusing not the least because the Judge used the term "relationship evidence" to cover a number of aspects of the evidence. For example, at one stage he referred to the fact that the complainant's mother was her sole carer as being relationship evidence. He also described what the complainant said about the hair conditioner as being relationship evidence. 114 Relationship evidence in its traditional sense is evidence that places the acts of the accused in context. So in Wilson v The Queen (1970) 123 CLR 334 the relationship between the accused and his wife was a relevant matter in determining whether the husband shot the wife or whether the weapon accidentally discharged. As Barwick CJ wrote at 337:
It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.
The evidence of the relationship between the two persons was admissible to explain the acts giving rise to the discharge of the weapon. The evidence of the acrimonious relationship between the accused and his wife was admissible to put the shooting of the wife into context. As Menzies J pointed out at 344, to exclude the evidence would be to require the jury to decide the issue "as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife". 115 Relationship evidence which is relevant in this way is admissible under the Evidence Act and is not subject to the operation of the tendency rule because the evidence is not being admitted to prove a propensity or tendency on the part of the accused to do the act charged: R v Serratore (1999) 48 NSWLR 101. 116 So in child sexual assault cases evidence of the relationship between the accused and the complainant is admissible to give context to the particular allegations made by the complainant that form the basis of the charges in the indictment. Of course in cases of child sexual assault the evidence will be of a different character than might be the case in other types of offences. This is because of the secretive nature of child sexual assault offences and because they are frequently part of a continuing course of conduct by the accused toward the complainant. But in principle there is no difference between the purpose for which the evidence is admitted in child sexual offence trials and trials of other offences where the relationship between the accused and some other person is a relevant matter. It is admitted not to prove that the accused had any particular propensity or disposition towards the complainant but to put the particular allegations in the context of the whole of the relationship as described by the complainant. 117 Context evidence in child sexual assault offences will normally come from the complainant because it is part of the narrative or the history of events surrounding the particular allegations in the counts set out in the indictment. Its relevance will only be found in the extent to which it does provide an understanding of the particular allegations before the jury. Where the complainant is alleging a history of assaults upon him or her by the accused, the evidence, or some of it, may need to be admitted because it would be impossible for the complainant to give an account of the particular allegations without referring to uncharged allegations that proceed or surround them. It would often be unrealistic for the complainant to be expected to give an account of the particular allegations as if they happened "in a vacuum". 118 On the other hand evidence of the relationship between the accused and the complainant that is admitted for the purposes of showing that the accused had a tendency or propensity to have sexual relations with the complainant will almost never be found in the complainant's account of his or her relationship with the accused. That is because the complainant's account of the relationship would rarely have sufficient probative value to overcome the precondition of admissibility for tendency evidence in s 97 and s 101. It is presumably the lack of sufficient probative value of the complainant's evidence to prove a tendency on the part of the accused that led McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106 at [76] to require that evidence of the complainant to be used for this purpose to be proved beyond reasonable doubt. Tendency evidence generally does not have to be proved to that standard. Evidence of the accused's sexual interest in the complainant will usually be found outside of the complainant's evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally. 119 Both context evidence and tendency evidence can bolster the credibility of the complainant but they do so in different ways. Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant's version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable. But other than generally assisting the complainant's credibility in this way, context evidence does not make the complainant's account more reliable than it would be in the absence of that evidence. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment. 120 Tendency evidence on the other hand is direct evidence relevant to the commission of the offence charged. If accepted by the jury, it makes it more likely that the offence charged was committed by the accused. It bolsters the complainant's credibility because her version is more likely to be true if the accused has a tendency to behave in the way she alleges he did on specific occasions. 121 It is clear that the trial Judge in the present case confused the relevance of context evidence with tendency evidence when he directed the jury that they could find that the relationship evidence showed that "within the accused there was sexual feeling or passion for the complainant that he was prepared to satisfy". As I have noted, context evidence says nothing about the accused at all. It is not led to prove anything, let alone a propensity or characteristic of the accused. Similarly the Judge was in error in directing the jury that they could draw inferences from the relationship evidence. Context evidence may allow the jury to infer some aspect of the complainant's conduct but it does not give rise to any inference about the accused's conduct. 122 The Judge should have made it clear to the jury the limited role that the relationship evidence had to play. I believe that it is preferable to refer to this type of evidence as "context evidence" during the summing up as the direction in the Bench Book does and not refer to it as relationship evidence. Rather than tell the jury that the evidence could show that the accused had a sexual feeling or passion for the complainant, the Judge should have warned them against drawing such an inference. He should have directed them that the evidence could not be used to show that it was more likely that the accused committed the offences charged against him. 123 The directions on relationship evidence by introducing the issue of the accused's sexual interest in the complainant resulted in miscarriage of justice. It is most unfortunate that neither counsel raised this matter with the Judge as the directions were so obviously erroneous. 124 LATHAM J: I agree with McClellan CJ at CL and I agree with the observations of Howie J. **********
06/03/2008 - address of complainant - Paragraph(s) 4
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QUALTIERI
REGINA
(1997) 191 CLR 275
(1998) 194 CLR 106
(1997) 42 NSWLR 702
(1993) 30 NSWLR 510
(1992) 175 CLR 599
(1995) 182 CLR 461
(1989) 167 CLR 590
(1989) 168 CLR 266
(1970) 123 CLR 334
(1999) 48 NSWLR 101