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.