_R v ON_

Judgment (120 paragraphs)

[1]

Director of Public Prosecutions (Qld) for the respondent

[2]

[1] HOLMES JA: The appellant appeals against his conviction on one count of indecent treatment (count 1), six counts of rape (counts 2 to 6 and 8), one count of maintaining an unlawful relationship (count 13), one count of assault occasioning bodily harm (count 7), and two counts of common assault (counts 9 and 12). He was acquitted of a further two counts, of assault occasioning bodily harm (count 10) and killing an unborn child (count 11). The complainant in respect of all counts was his step-daughter, B, and the offences were said to have been committed over a period from the end of May 1997, when she was 13 years old, to the beginning of February 2005, when she was 20 years old.

[3]

[2] The grounds of appeal are that the counts relating to offences of violence (counts 7, 9, 10, 11, and 12) should not have been joined with the remaining counts of sexual offences; that evidence of a recorded pretext telephone conversation should not have been admitted, or, alternatively, that the trial judge erred in directing the jury as to the use they could make of it; and that evidence of the appellant's violence towards B's brothers and of his excessive alcohol consumption should have been excluded, or, alternatively, that the trial judge had erred in directing the jury as to the use to be made of the evidence.

[4]

[3] B gave evidence that, when she was about 10 or 11 years old, her mother formed a relationship with the appellant which resulted in her taking B and B's two younger brothers to live with the appellant on a large grazing property owned by his family west of Emerald. (B's mother and the appellant later married). B said that the appellant disciplined the three children by flogging them with a belt; that happened to her approximately once a week, and to her brothers more frequently. B's grandmother gave evidence that in 1994 she had stayed at the property and had seen the appellant striking the two boys in front of B and verbally abusing them. The appellant's "favourite pastime", the grandmother said, was drinking rum. B also said that the appellant was given to drinking rum every evening; it made him angry and vocal. Another witness, TW, who was acquainted with the appellant from about 2000, gave evidence to similar effect.

[5]

[4] B said in evidence that in mid-1997, when she was 13, she and the appellant had gone to a particular paddock, which she identified, to check an area which had been burned off. On the way home the appellant stopped to urinate. After doing so, he showed her his penis (count 1), told her to have a good look at it, and said he would show her what it could do. A couple of weeks later, the appellant asked her to accompany him to his mother's house on the property, which was then unoccupied. In the lounge room, he raped her, penetrating her vagina with his penis (count 2). Afterwards he grabbed her by the arm, shook her hard, and said that if she told anyone he would do it again. B said she bled from her vagina after that event. She washed her underclothes and did not tell her mother what had happened because she was scared of the appellant.

[6]

[5] B gave evidence of two similar rapes by the appellant, not long after the first, in a bedroom at his mother's house. The earlier of the two (count 3) was just before the appellant's birthday on 8 October; B's mother and brothers were away shopping for items for a party. On that occasion the appellant told her to co-operate or she would "cop a flogging". The next rape (count 4) occurred on the appellant's birthday, while B's mother and brothers were away fishing with visiting friends. Again, B said she did not tell anyone of those rapes because she was scared of what the appellant would do. Once, she said, she was alone with her mother and was about to confide in her when the appellant came in and mouthed the word "no". As a result, she said nothing and did not repeat the attempt because she was afraid of the appellant.

[7]

[6] B said another rape occurred at the same property soon after. On this occasion, B had gone with the appellant to check a water trough. The appellant shook her and said that no one would believe her if she tried to tell anyone what had occurred, because she was "just a kid". Dismissing her objections, he proceeded to have sex with her over the tray of a utility (count 5). Similar events, B said, happened every few days, either at the appellant's mother's house or out in the paddocks.

[8]

[7] Towards the end of 1998, the family moved to a much smaller property. The appellant began working as a truck driver, and was away for days at a time. Despite his absences, B still made no complaint because, she said, she was afraid that she or others would be harmed. Towards the end of 1998 there was an occasion when B was alone with the appellant at home. He told her that she was his girl and no one else's. She said that she did not want him to have sex with her anymore. The appellant said she "had to", or he would "have to hurt" her. He then took her into the bedroom he shared with her mother and raped her once again (count 6). From that time, however, B said, the appellant changed his behaviour towards her, generally being pleasant and giving her money for cigarettes or compact discs. AW, a high school friend of B, said she could recall the appellant giving B cigarettes when she was about 16, and saying:

[9]

"One for a poke, two for a screw, imagine what a carton would do."

[10]

[8] The charge against the appellant of maintaining an unlawful sexual relationship with B, a child under 16 years, with aggravating circumstances that he had raped and indecently dealt with her (count 13), was based on the sexual assaults of B over the period from mid 1997 until February 2000, when she turned 16.

[11]

[9] B said that in 2001, when she was 17 and in her last year of school, a young man telephoned to ask her to accompany him to the school formal. The appellant answered the phone, and said that B was not interested. He became angry with B and accused her of "cheating on" him. He hit her on the side of her head with the back of his hand, making her fall to the floor (count 7). B's mother asked later how B got the bump on her head; B was afraid to tell her, and invented an explanation for the bump on her head. After B had bought a dress for the formal, the appellant told her to come with him on a four-wheeler bike to an area some distance from the house. He expressed his disapproval of the dress and then, using the bike for support, raped her once more (count 8).

[12]

[10] Similar incidents of intercourse occurred frequently, B said, either in the appellant's bedroom, or in the paddocks. In 2002, B's mother left the property with her two younger brothers, telling B that she was a "harlot" and that it was her fault she was leaving. B remained on the property with the appellant. She was now 18, working, and had her own car. From then, she said, it was as though she and the appellant were "sort of in a relationship".

[13]

[11] After the departure of B's mother, when B was about 19, her friend AW visited the property with her boyfriend TW. TW gave evidence that while they were at the property he had a conversation with the appellant, who divulged that he was "with [B] now", and had been since before she was 16 years old. He asked TW not to tell anyone. On the same occasion, B told AW that she was "with" the appellant. According to B, the appellant was angry that she had confided in AW. After the couple left, he pinned her up against a wall, yelled at her and smashed his hand into the wall beside her head (count 9).

[14]

[12] In 2003, the appellant bought a video store, which he and B ran together, in a small town near Rockhampton. B gave evidence that in the same year she became pregnant to the appellant. She said that during the course of an argument he assaulted her, throwing her from stairs so that she landed on her stomach on concrete, causing her to lose the baby. Counts 10 and 11 were based on these allegations. A doctor from the hospital in which B was treated said that she had presented there one evening with a history of pain and bleeding since midday. She did not make any complaint of assault or injury, and no abrasions, lacerations, bruising or other signs of injury were noted. The appellant was acquitted of both counts.

[15]

[13] Soon after that incident, the appellant and B moved to a house in the town where the video store was located. In early 2005, B said, the appellant found her diary, in which she expressed her desire to leave the relationship. He confronted her; she confirmed that she wanted to leave, and he assaulted her by picking her up and putting her head into the television (count 12). B contacted friends who came to get her, and the relationship ended there. B conceded in cross-examination, however, that she had travelled with the appellant to Sydney about a month later to see his daughters.

[16]

[14] In April 2006, B encountered the appellant in the small town where she was working. He followed her, and she heard him say that her problems were not because of him but because of the people she was "hanging out with." She went to the police station and, on TW's advice, arranged to see a particular officer. The following day she made the statement on which the charges against the appellant were ultimately based. Some six weeks later, at the suggestion of police, B telephoned the appellant in a call which was recorded by police; it will be discussed further elsewhere in these reasons.

[17]

[15] The appellant gave evidence in his own defence, as did his mother. The appellant said that he had never been violent to B, and had not used any physical discipline on her brothers. He had never exposed himself to her, nor had he had sexual intercourse with her until she was 20 or 21, when they were living in the house in town; then they had intercourse three or four times. He was not the father of the baby that B lost in 2003. He first became aware that she was pregnant when she complained of pain while working at the video shop and he drove her to the hospital. His separation from B's mother was due to a breakdown in their relationship, in part because B accused her mother of having an affair with a friend of the appellant. He had not made the statement attributed to him by TW; he had had a falling out with TW and AW which had left them on bad terms.

[18]

[16] The appellant's mother gave evidence that she was the owner of the large grazing property on which the appellant lived with B and her family. She said she was able to tell by reference to her 1996 diary that the paddock on which B said the appellant first exposed himself to her was burnt off at the end of November 1996 and then sown, and would not have been burned again in mid 1997. When she was away from her house on the property she locked off the bedrooms so that nobody but her had access. She was able to tell from waybills she had signed that mustering was occurring around the time of the appellant's birthday in October 2007. She was at the property and it was an extremely busy time; there would not have been a birthday party.

[19]

[17] The appellant's mother said she had frequent opportunities to observe the interaction between her son and B and never saw any sign that B was frightened of the appellant. In the year after B left school she was working in Rockhampton where the appellant's mother was then living, and visited her each weekday morning (as B herself confirmed in her evidence). She seemed cheerful, never apprehensive or afraid.

[20]

[18] The appellant argued that counts 7, 9, 10, 11 and 12 were wrongly joined with the other counts in the indictment, resulting in a miscarriage of justice. Section 567(2) of the Criminal Code creates the capacity to join charges in certain circumstances:

[21]

"Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose."

[22]

[19] Counsel for the appellant, Mr Henry SC, accepted that counts 1 to 6, 8 and 13 were joinable as forming part of a series of offences of the same or similar character. (For brevity's sake I shall refer to them as the "sex offences" and the remaining offences as the "offences of violence"). But the offences of violence, he submitted, were not properly joined with the sex offences: they were not founded on the same facts or committed in the prosecution of the same purpose. Count 7, assault occasioning bodily harm, was not connected with count 8, the rape occurring at about the same time; and counts 9, 10, 11 and 12 were removed in time and circumstance from the earlier sex offences.

[23]

[20] Counsel for the respondent Crown, Mr Copley SC, argued that the joinder of the counts was proper; there was a single purpose underlying all the alleged offences, which he identified as:

[24]

"a campaign of violence directed to subduing the complainant so that she would comply with his wishes."

[25]

I think the argument can be reasonably made that the assault of B occasioning her bodily harm (count 7) in the time leading up to her school formal was consistent with a desire to ensure her continued passivity in subsequent sexual assaults, including the rape (count 8), which followed soon after. But it is difficult to see how the "campaign of violence" thesis can be made out in respect of the remaining offences of violence, counts 9 to 12. In the period in which those offences were said to have been committed, B was an adult living in a consensual sexual relationship with the appellant; no complaint of sexual assault at that time was made. Those offences were not shown to have any consistent purpose, let alone one connected with the earlier sex offences.

[26]

[21] It follows that I do not consider counts 9 to 12 to have been properly joined with the other counts. It does not, however, follow that any miscarriage of justice occurred, particularly in the absence of any complaint by the defence. But Mr Henry, while conceding that no issue was raised at first instance about the propriety of the joinder, contended there was no forensic reason for failing to take the point: there was no advantage to the appellant in the charges proceeding together, and the jury's knowledge of the offences of violence must have prejudiced the appellant's defence on the sex offences. He proffered an affidavit from trial counsel which said, tersely, that the latter's failure to make any application or objection, or to seek redirections on matters relating to the three grounds of appeal, "was not for a tactical purpose."

[27]

[22] That form of words seems to have been derived from Gleeson CJ's observation, in Nudd v R[1], about evidence of the kind:

[28]

"More often than not, any such evidence is confined to a brief, unchallenged, assertion by trial counsel that the failure to object was not for a tactical purpose."

[29]

That statement was made apropos circumstances where r 4 of the Criminal Appeal Rules 1952 (NSW) applied: it required leave for a ground of appeal based on a direction or ruling as to admissibility of evidence to which no objection was taken at trial.

[30]

[23] Mr Henry relied on Gleeson CJ's observation as suggesting the existence of two lines of High Court authority, one acknowledging, the other rejecting, the relevance of counsel's explanation for having taken a particular course. The latter approach is articulated in TKWJ v R[2] in the judgments of Gaudron J[3] and Hayne J[4], with both of whom Gummow J agreed[5]; in Ali v R[6] by Hayne J[7] (with whom McHugh J agreed[8]) and Callinan and Heydon JJ[9]; and in Nudd v R in the joint judgment of Gummow and Hayne JJ[10]. But a closer examination of the judgment of Gleeson CJ in Nudd[11] shows that he, too, considered that, in the ordinary course, the question of whether counsel's actions were forensically explicable was to be approached from an objective view point, although there might be exceptions:

[31]

"To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel."

[32]

[24] There is no feature of the present case which suggests that this Court should go beyond an objective consideration of whether counsel's actions were consistent with obtaining a forensic advantage in considering the ultimate question of whether there was any miscarriage of justice. Counsel's disavowal of tactical considerations may, consequently, be disregarded.

[33]

[25] Objectively speaking, there is, in my view, a discernible forensic reason for wishing the counts involving offences of violence to proceed with the others, particularly counts 10 and 11, which concern the allegation that the appellant threw B from stairs onto her stomach, causing her to miscarry. The advantage of proceeding with those counts at trial, rather than simply cross-examining B about them, was that because they formed part of the Crown case, medical evidence was called about B's hospitalisation, and the defence was able, through that evidence, to confirm the absence of any contemporaneous complaint or sign of injury. Similarly, in respect of count 12, which involved B's allegation that the appellant picked her up and drove her head into a television set (opened more vividly as the appellant's having pushed her head through a television, smashing it), the defence had the advantage of a lack of any prosecution evidence that the television was actually damaged.

[34]

[26] Counsel for the appellant at the trial could well have considered that there was a real prospect the jury would take an adverse view of B's credibility in relation to counts 10 and 11, and, to a lesser extent, 12, which might also affect their view of her in relation to other counts. He certainly addressed the jury to that effect, referring to the "domino effect" of a doubt about B's reliability; and a Markuleski[12] direction, to the effect that a doubt as to B's truthfulness and reliability on any particular count should be taken into account in assessing her evidence on the remaining counts, was given. It seems, indeed, that the jury was not satisfied beyond reasonable doubt of the complainant's account in relation to counts 10 and 11, but that doubt did not pervade their views on other counts. And, as it turned out, the jury accepted B's account on count 12. Those results, however, do not mean that counsel would have been wrong in contemplating the possibility that they would reject B's version on all three counts, and extend their disbelief to other charges.

[35]

[27] A tactical decision could reasonably have been made in this case to allow all charges to proceed together, in the hope that a doubt as to B's credit would build, in a cumulative effect. The forensic advantage of that course was not so "slight in comparison with the importance to be attached to the ... irregularity in question"[13] as to lead to a different conclusion. In the circumstances, I do not think any miscarriage of justice resulted from the joinder.

[36]

[28] On 14 May 2006, B telephoned the appellant. After some discussion about who owed an apology to whom, this conversation ensued:

[37]

"I don't know? -- [B], you know I - I don't know what to do.

[38]

I - I don't even know Nina?-- You went around there.

[39]

I went there with Mandy?-- Yeah, and told them that I was sexually harassing you for four years.

[40]

Larry, I was 13 - I was 13 year old. Don't you care about how that effected (sic) me?-- I care about you as a daughter.

[41]

But don't you care about what you had done to me?-- [B], I love you as a daughter, all right.

[42]

[29] Shortly after, the appellant asked whether B was taping him; she denied doing so. After some discussion about whether AW and TW were causing problems between them, the appellant reiterated that he wanted B to be his daughter. She expressed doubt:

[43]

"Because I have had to go through a lot of bloody counselling and everything with what you done when you were with Mum to me and it was really, really hard?-- With Mum?

[44]

How I was the - the other woman on the side. You know, that - that's really hard. And the fact that I don't have my Mum now because of that?-- You're not talking to your mother?

[45]

Why, what's she said now?-- Oh, she's going around - going around saying different things."

[46]

Because of what you done. You know, it was wrong?-- Everything's wrong, [B]. Life's hard.

[47]

Tell me about it?-- [indistinct] I know you're living [indistinct] I think you're living [indistinct]. But I don't - I'm not going to go looking for you. I'm not going to chase you up, if you want to talk to me you know where I am, you know. You know, I'm on my own again now.

[48]

Maybe you should have just not have had a sexual relationship with me and you should have stayed with Mum. You might have been better off?-- I don't know. I don't know, [B]. What - you know, what did this - you know, I can't help you [B] unless you help me. You know, unless you let me help you.

[49]

How are you supposed to help me? What are you supposed to just give me a hug and say "I'm sorry, [B], and that everything is going to be all right."? -- I don't know, what [indistinct]. I don't know.

[50]

You know it's taken me a lot of guts to call you, hey? -- I know. I know.

[51]

Because you're - you're a scary man?-- I'm not scary."

[52]

[31] The appellant followed with some benign remarks, before B returned to the real point of the call:

[53]

Having a sexual relationship with me, come on? I just - I just need to know. Did you know it was wrong, or was I wrong, or - I just want to know what I done to sort of get - cop that?-- I don't know what you're talking - what you're talking about, [B]. If you need to go - you need to go and get help, all right.

[54]

Yeah, but you know what I'm talking about and you're making me out to be a bloody liar?-- I will talk to you - if you want to talk to me you come and talk to me. Okay?

[55]

Yeah, I don't think I can do that?-- Because I can tell you some things about your mother [indistinct]. But anyway I don't know [indistinct] else what I could do.

[56]

I just want you to say you're bloody sorry, that's all. I want you to know, you know, what had happened was wrong. I want you to be sorry for that?-- What, are you sorry for what you did to me?"

[57]

[32] The question of the appellant's drinking was raised:

[58]

"You still drink, though, don't you?-- No, I haven't had a drink, no. I don't drink no more. I smoke but I don't drink. No, I give up drinking 'cause, you know, ah -----

[59]

Because you were a pretty - you were ---- ? -- [indistinct] go to Church. I'm starting to go to Church and sort my life out.

[60]

Yeah, because you were pretty freaky on the rum?-- I know. I -----

[61]

You don't - you didn't even know half the shit you were doing half the time?-- Yeah, you're probably right. But, you know, um, I'm sorting my life out, [B]. And this here was a sort of a kick in the guts but, you know."

[62]

[33] Some discussion ensued about B's conversations with other people, with the appellant maintaining that she should have spoken to him first. B responded:

[63]

"Well I'm doing that now and you don't bloody want to talk to me. I thought - you don't want to talk to me, I thought you wanted to talk to me?-- I do want to talk to you to see how you're going in your life.

[64]

Yeah, right, all up to shit after what you done?-- [indistinct] [B]. [indistinct].

[65]

Yeah?-- [indistinct] and where - [indistinct] stay around or are you going to leave.

[66]

I don't know what the future holds for me yet. I'll reach that crossroad when I get there?-- Mmm. Well, [B], it's up to you [indistinct] father be there for you [indistinct] if you don't I can't do nothing about it, [B], I really can't. All right. [indistinct] I don't know what to do.

[67]

So what are you saying, what's in the past is in the past just leave it at that?-- Do what you like, [B] [indistinct].

[68]

How can I get on with my life when I'm still bloody coping with shit that you done to me?-- Look, [B], I've got a lot of shit going on in my life to, hey.

[69]

Yeah, I bet - no doubt you would. You know, you probably got a real guilty conscious [sic] after doing what you done to me, hey?-- Do you want me to come around and talk?

[70]

No, I'd prefer to do it this way 'cause that way then I know your little mates aren't going to be waiting around the corner for me?-- [indistinct] nobody.

[71]

Yeah?-- [B], if you wanted to talk to me [indistinct] and there'd be nobody there.

[72]

What do you want to talk in private for?-- Well it's up to you. You want to talk to me.

[73]

I do want to talk to you?-- Face to face - we will talk face to face just you and me. It's up to you.

[74]

No, I won't do that. I won't do that?-- Well, you know, [B], I love you as a daughter and I always will now.

[75]

From now on?-- No, I always did love you as a daughter.

[76]

Considering - considering I was a bed buddy?-- Are you at home or at you at [indistinct]."

[77]

[34] Later in the conversation, the appellant asked B what she wanted. She answered:

[78]

"I just want you to - to apologise for everything that happened. For me getting pregnant and then bloody your violent acts when you were drunk and what you used to do to me in the bedroom, down the bloody paddock. You reckon I fucked your life, Jesus Christ you fucked mine up pretty good?-- [indistinct], you know. I move on, you move on we all go our separate ways if that's what you want.

[79]

So just forget everything, that it ever happened?-- What happened? What are you talking about now?

[80]

You said, oh, you - you just said to me, "You move on and I'll move on and we'll just call it even" so I'm just supposed to forget about everything that you'd done to me?-- I don't know, [B], what you're going to do and what I'm going to do, we've got to move on."

[81]

[35] The appellant reiterated that he was trying to get on with his life. B returned to the intended theme of her questioning:

[82]

"So you've stopped picking on little girls?-- What?

[83]

So you've stopped picking on little girls? -- I never picked on little girls.

[84]

Don't deny it, you know it was true. How the hell was a 13 year old girl supposed to know what to do?-- I don't know what you're talking about now.

[85]

Oh, yeah. You're lying?-- I don't know what you're talking about.

[86]

You don't, hey?-- Because the reason is, [B], I was [indistinct] cause your mother had a lot to do with [indistinct].

[87]

So, what, how the hell did Mum have anything to do with this?

[88]

What, she said, "Here, here's [B], go take her."?-- [indistinct].

[89]

Righto. I seriously don't see how Mum could have done that?-- [B], you need to get on with your life."

[90]

[36] Subsequently, the appellant asked again what B wanted. She answered:

[91]

"I want to move on, I want to stop having this bloody fear all the time?-- Well you got no fear of me.

[92]

Yeah, righto?-- Because - why would you have fear in me for, you never had fear of me when you were a kid or any time [indistinct].

[93]

It's because I ----- ? -- [indistinct] fear of me before in your life.

[94]

It's because - that's because I realised what you'd done to me was wrong?-- [B], you had never had fear of me in your life and you turn up here and [TW] and [AW] [indistinct] here and now you've got fear in me."

[95]

[37] At trial, the prosecutor did not identify any part of the conversation which was said to constitute an admission. Instead, he opened and addressed on the evidence as manifesting the appellant's "guilty knowledge" of the offences. Here, Mr Copley SC, with his customary straight-forwardness, conceded that the tape contained nothing admissible, because B did not put to the appellant that he had had sex with her while she was under age, or that any sex was non-consensual. On the other hand, Mr Copley pointed out, no objection had been taken to its admission, and it could be seen as favourable to the appellant. I think that submission is correct. The tape contained denials, although their impact was diminished by the appellant's apparent realisation that he might be taped. Nonetheless, the decision to allow the tape to be tendered without objection can be explained in light of the fact that the tape did contain those denials by the appellant in circumstances where, because he had declined to be interviewed, there were no other out of court denials.

[96]

[38] The second limb of the appellant's complaint concerning this evidence was that the trial judge had not directed the jury in accordance with Barca v R[14] that they could:

[97]

"only use the statements as evidence of the truth of what was stated if they [were] satisfied that the accused has by his speech, silence or conduct admitted their truth."

[98]

Instead the learned judge made these remarks about the tape recording :

[99]

"In that tape, [B] clearly accused the defendant of sexual misconduct towards her. Nowhere in that conversation did he admit her allegations but neither, as I understood it, did he deny them.

[100]

You may think that he appeared to be somewhat suspicious of her motive for ringing him because he asked her on more than one occasion if she was recording the conversation. You will make of this evidence what you will. The prosecution argues that his responses, when accused of sexual misconduct towards [B], show that he had a consciousness of guilt. It is argued that if he maintained that he had not committed any sexual offences towards [B], he would have made his position clear."

[101]

[39] Later, in reprising defence counsel's submissions, the learned judge again added some comments:

[102]

"[Counsel] reminded you that in the pretext telephone call, the defendant made no admissions whatever. He urged you to consider that different people might react in different ways when confronted with allegations in the way he was, in the pretext telephone call.

[103]

Well, that is so, but you may well think that if the allegations were untrue, he would have clearly denied all knowledge of any such contact, particularly in the course of such a lengthy phone call. It is a matter for you.

[104]

Bear in mind also that he apparently had some forewarning that allegations had been made by [B] to Terry O'Keefe, and these caused him to have some problems with Nina, his present wife."

[105]

[40] Mr Copley's submission was that, since the tape contained no incriminating statements, no direction was necessary. However, the learned judge's comments, in my respectful view, mis-stated the content of the telephone conversation. At its highest, it contained some equivocal responses to B's assertions of the appellant's unsatisfactory conduct in the course of a sexual relationship. There was nothing "clear" about B's accusations of sexual misconduct; she did not identify what period of her life she was referring to; and there were denials by the appellant, at least of knowing what B was referring to when she accused him of "picking on" her as a 13 year old, or of having a sexual relationship with her when she was "young". Even if that were not so, it was incumbent on the learned judge to tell the jury that they should act on those responses only if satisfied that they amounted to acceptance of the truth of what was asserted. That in turn, of course, required identification of precisely what allegations were the subject of admissions.

[106]

[41] And once the prosecutor invited the jury to conclude that the conversation demonstrated a consciousness of guilt, upon which it could act, it was incumbent on the trial judge[15] to give a direction of the Edwards[16] type, with the jury being cautioned that it should consider whether there might be other reasons than consciousness of guilt for the appellant's responses, and that the relevant consciousness of guilt must be in relation to the offences charged, not some other misconduct. No such direction was given. The comments the learned judge did make compounded the error by suggesting that there was some relevant failure to deny allegations and that the jury might infer guilt from the tenor of the conversation.

[107]

[42] The result, in my view, is a risk that the jury regarded the tape as, in some unspecified way, indicative of guilt. Counsel at trial did not seek any re-direction; nonetheless, a miscarriage of justice has occurred, in the failure to give proper directions to the jury about how it should approach the telephone conversation. This is not a case for the application of the proviso. The convictions must be set aside and a retrial ordered.

[108]

The appellant's drinking and violence to B's brothers

[109]

[43] Having reached that conclusion, it is not strictly necessary for me to address the last of the grounds of appeal, that evidence of the appellant's use of alcohol and violence to B's siblings should not have been admitted. However, it may be of assistance in the conduct of a new trial to make these brief observations. Mr Copley conceded frankly that the evidence of B's grandmother as to the appellant's conduct towards the boys in her presence was inadmissible, because she gave evidence only in relation to a period three years before any offence was said to have occurred; and the evidence of the appellant's drinking habits from both B, her grandmother, and TW was irrelevant, because it was not suggested that his drinking had any connection with any of the offences. I think those concessions were properly made.

[110]

[44] I think also that there is force in Mr Copley's further point that violence towards B's brothers actually witnessed by her fell into a different category. B had made clear that she was compliant and did not tell anyone what had happened to her because she feared physical harm from the appellant. She did not say in so many words that his conduct to her brothers contributed to her fear, but in light of all the evidence it seems to me an inference open to the jury. If the evidence were to be left to the jury on that basis, however, a direction as to the limited purpose for which it could to be used would be appropriate.

[111]

[45] For the reasons given, the appeal against conviction should be allowed, the convictions set aside, and the appellant retried on counts 1 to 9, and 12 to 13. I do not consider it appropriate to make any order as to separate trials; any argument about severance can more appropriately be made in the court below.

[112]

[46] MUIR JA: I agree with the reasons of Holmes JA and with the orders she proposes.

[113]

[47] FRASER JA: I have had the advantage of reading the reasons for judgment prepared by Holmes JA. I agree with those reasons and with the orders proposed by her Honour.

[114]

[1] [2006] HCA 9; (2006) 225 ALR 161 at 165.

[115]

[2] [2002] HCA 46; (2002) 212 CLR 124.

[116]

[6] [2005] HCA 8; (2005) 214 ALR 1.

[117]

[12] R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290.

[118]

[14] [1975] HCA 42; (1975) 133 CLR 82 at 107.

[119]

[15] R v SBB [2007] QCA 173; (2007) 175 A Crim R 449 at pp 451, 459; [2007] QCA 173.