R v Richard Norman Mearns

Court of Criminal Appeal (NSW)|2005-12-08|Before: Buddin J, Latham J, McHugh J

R v Richard Norman Mearns [2005] NSWCCA 396 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Brownie AJA at 1; Buddin J at 2; Latham J at 3

DECISION: Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal dismissed.

BD (1997) 94 A Crim R 131 R v Whitmore [1999] NSWCCA 247 R v El-Kheir [2004] NSWCCA 461 R v Reardon [2002] NSWCCA 203 R v Selsby [2004] NSWCCA 381 R v Murray(1987) 11 NSWLR 12 R v Zafiris CCA (unrep) 14.9.98 R v Gust [1999] NSWCCA 265 R v V CCA (unrep) 16.4.98 R v Haeney CCA (unrep) 13.6.98 R v Abusafiah (1991) 24 NSWLR 531 R v Aziz [1982] 2 NSWLR 322 R v Pfitzner (1976) 15 SASR 171 R v LTP [2004] NSWCCA 109 R v Stringer (2000) 116 A Crim R 198 CASES CITED: R v Macdonald (1995) 84 A Crim R 508 R v Westerman (1991) 55 A Crim R 353 R v VHP CCA (unrep) 7.7.97 R v Beserick (1993) 30 NSWLR 510 BRS (1997) 191 CLR 275 ; (1997) 95 A Crim R 400 R v Harvey CCA (unrep) 11/12/96 R v AH (1997) 42 NSWLR 702 R v Greenham [1999] NSWCCA 8 R v Wickham CCA (UNREP) 17/12/91 Gipp v The Queen at 132 per McHugh J R v AN [2000] NSWCCA 372 R v MM [2000] NSWCCA 78; 112 A Crim R 519 R v ATM [2000] NSWCCA 475 R v TAB [2002] NSWCCA 274 KRM v The Queen (2001) 206 CLR 221 ; [2001] HCA 11 R v GS [2003] NSWCCA 73

Respondent - Crown PARTIES: Appellant - Richard Norman Mearns

Crown - Ms V Lydiard COUNSEL: Appellant - Ms A Francis

Crown - S Kavanagh SOLICITORS: Appellant - SE OConnor

IN THE COURT OF CRIMINAL APPEAL 738/2005

BROWNIE AJA BUDDIN J LATHAM J

1 BROWNIE AJA: I agree with Latham J 2 BUDDIN J: I agree with Latham J 3 LATHAM J: The appellant appeals against his conviction on 28 May 2004 at Parramatta District Court on four counts of aggravated indecent assault and one count of aggravated sexual intercourse without consent. The appellant also seeks leave to appeal against the sentences imposed by Sorby DCJ (the Judge) on 2 September 2004. 4 The appellant lived with the complainant's mother, LG, in a de facto relationship between 1991 and late 2000. The relationship commenced in about 1990 when the complainant was 3 years old and it continued until late 2002. During the periods when the appellant was not living at the home, he had unrestricted access to the home. 5 The complainant's evidence was that between 1999 and 2002, when she was between 11 and 15 years of age, the appellant touched her on the breasts and on the vagina, pushed his fingers into her vagina and exposed his penis to her on various occasions. The appellant's alleged practice of entering the complainant's bedroom on a regular basis early in the morning, pulling down the blankets, lifting her shirt to rub and kiss her breasts and placing his hand down her boxer shorts to feel her external genitalia was the subject of relationship evidence. A poem written by the complainant in 2002 was also admitted under s 108(3)(b) of the Evidence Act 1995, in anticipation of the cross-examination of the complainant alleging fabrication on her part. 6 The Grounds of Appeal assert error by the Judge in the following respects:-

(i) Inadequate and incorrect directions in respect of the relationship evidence;

(ii) Admission of the poem as evidence in the Crown case;

(iii) Inadequate Murray direction in respect of Counts 3, 4 and 5;

(iv) Failing to direct the jury that they must be satisfied beyond reasonable doubt that the incident, the subject of Count 3, occurred between 31 July 2002 and 1 January 2003. In addition, it was submitted that the complainant's evidence in support of Count 3 was incapable of supporting a verdict of guilty.

The Offences and the Evidence at Trial 7 Count 1 alleged an aggravated indecent assault between 31 December 1998 and 1 January 2000. The complainant gave evidence that, on an occasion in mid 1999, when she and the appellant were alone in the lounge room of the Baulkham Hills home watching television, the appellant pushed her down into a lying position on the lounge, placed his hand underneath her sports uniform and rubbed her breasts. The complainant was about 11 or 12 years of age. The appellant told the complainant not to tell her mother, that it was "our little secret". 8 Count 2 alleged an aggravated indecent assault between 31 December 1998 and 30 April 2000. According to the complainant, on an occasion when she and the appellant were alone in the lounge room watching television and she was about 12 years of age, the appellant kissed the complainant and placed his hand under her shirt and rubbed her breasts. The appellant removed his hand as LG came into the room. He then said "Promise me you won't tell anybody". The complainant promised to say nothing to anyone about these incidents at this time. 9 Count 3 alleged an aggravated indecent assault between 31 July 2002 and 1 January 2003. The complainant said that on an occasion when she believed she was in Year 8 at school (2001), she was lying on her bed late one night at about 11:30pm sending SMS messages on her mobile phone. The appellant came in and lay across the bed, lifted her shirt and kissed and touched her breasts. He then squeezed her breasts, before exposing his penis and placing her hand around it. Shortly thereafter, the appellant stopped and sat up on the complainant's bed. As he was sitting up, LG came in and said, "What the hell is going on?" The appellant replied that nothing was going on, then followed LG out of the room. The complainant stood at the door, adjacent to her mother's room and heard the appellant tell her mother that the complainant was planning to run away from home. The complainant did not have any such conversation with the appellant. 10 LG gave evidence of an occasion in early December 2002 when she awoke to find the door to the complainant's bedroom almost closed. On pushing the door open and turning on the light, she saw the appellant and the complainant lying across the bed. The appellant's arm was across the complainant's stomach. LG said, "What the hell's going on here?" to which the appellant replied "Nothing, we're just talking." LG returned to her room and was followed by the appellant. The appellant told LG that the complainant had spoken to him of running away from home and that he was attempting to dissuade her when LG entered. LG accepted this account at the time. 11 The appellant gave evidence at trial. On the subject of the allegation underlying Count 3, the appellant agreed that there was an occasion in late 2002 when he went into the complainant's room, sat on her bed and saw her sending SMS messages. The appellant claimed there had been a conversation with the complainant in the television room to the effect that the complainant wanted to run away to a nearby park to meet with a friend, SH. That conversation continued in the complainant's bedroom. He agreed that LG came into the room and asked "What's going on?" before returning to her own bedroom. He agreed he had then gone to LG's room and told her of the conversation with the complainant. In short, he denied any sexual impropriety, but every other aspect of the event described by the complainant and LG was in general terms not disputed. 12 Count 4 alleged an aggravated indecent assault between 31 May 2002 and 1 January 2003. The complainant's evidence was that one night, at a time when the appellant was staying at the house and she was almost 15 years of age (2002), she had gone to her mother's bedroom and asked if she might sleep in her bed. LG agreed. The appellant was downstairs watching television. At some later time, the appellant came into the room and got into bed. The complainant did not see the appellant get into the bed, but she maintained he was not wearing any clothes. The complainant was lying with her back to the appellant, facing towards her mother. The appellant's hand reached across the complainant and came to rest on LG. The complainant described feeling the appellant's erect penis against the back of her legs and in between her legs. She became upset, climbed over her mother and went to her own room. LG followed her to her room, where they both slept the remainder of the night. 13 LG also gave evidence of an occasion in December 2002 when the complainant came to her in bed. According to LG, the appellant came into the room, walked around the bed to the complainant's side and got into bed wearing a pair of silk shorts. LG said, "K's here". The appellant replied "I know. I'm only going to stay for a couple of minutes." Initially, both LG and the complainant were facing towards the appellant, however, after the appellant got into bed, the complainant turned to face LG. The appellant leant over the complainant and began touching LG's breasts. LG told the appellant to stop. The complainant then climbed over LG and shortly afterwards went to her own room. LG tried to leave the bed, but the appellant grabbed her wrists and placed her hand on his penis, which was erect at the time. LG went to the complainant's room and slept the night there. 14 The appellant's evidence was that there were occasions, up until the complainant was 15 years of age, when all three would sleep in LG's bed, but LG never permitted him to sleep next to the complainant. He denied that he had ever been next to the complainant in bed and denied any conduct of a sexual nature towards the complainant. 15 Count 5 alleged aggravated sexual intercourse without consent between 1 November 2002 and 1 January 2003. In late November or early December 2002, the complainant was at home at about 4:00pm, when the appellant entered the house, approached her and tackled her to the floor. The complainant interpreted this as playful behaviour on the appellant's part, he having been her judo coach until she was about 7 years of age. The complainant retaliated, but was again thrown to the floor. The appellant lay across the top of her body, leaning on his left side, facing her feet. He then put his hand under her dress, inside her underpants and pushed his fingers inside her vagina. While this was happening, the complainant was trying to push him away and telling him to stop. The appellant said nothing. After a short time, the appellant looked at his watch, got up and went to the bathroom. Approximately 10 to 15 minutes later, LG came home. 16 The appellant agreed that there were many times when he and the complainant would wrestle in a playful fashion. He denied that he had ever behaved in the manner alleged by the complainant on any of these occasions. 17 LG's evidence included an account of a conversation with the appellant approximately 2 weeks after the complainant's first statement to police. At the appellant's invitation they met at a café in Baulkham Hills, where the appellant referred to the complainant in derogatory terms and told LG that the complainant "could stop this anytime she wanted to, all she has to do is change her story". On 24 April 2003, the day the appellant was charged, the appellant came to LG's workplace and met LG in the carpark. On that occasion, the appellant urged LG to change her statement, otherwise he would "go to gaol". The appellant admitted that he spoke to LG on these occasions, although he denied that the second occasion was the day he was charged. However, he acknowledged that both meetings occurred after he became aware of the complainant's general allegations. The appellant denied that he had referred to the complainant at all or that he had urged anyone to change their statement.

The Complainant's Poem 18 Some brief reference to the conduct of the trial is necessary to place the evidence of the poem in context. The trial commenced on 17 May 2004. That day was wholly occupied with legal argument. A jury was empanelled on 18 May 2004, but was discharged the next day owing to a malfunction in the CCTV system and on the application of the appellant's counsel. A further jury was empanelled on 19 May 2004 and the trial commenced afresh without further legal discussion. 19 On 17 May 2004 the Crown foreshadowed an application to adduce evidence of the contents of a poem written by the complainant. The poem bore the title "Our Little Secret". A copy was provided to the Judge for the purposes of argument. It read:- Why does he make me do it? He knows I'm under age. It's not just that, he's family, If I say no he gets in a rage. I try to fight him off, I struggle, full of tears, He says it's our little secret; He's been doing this for years. The pain is unbearable, Sometimes I find it hard to walk, He even gives me bruises, If I am noisy or talk. I want to tell my mum, Maybe she can make him go, But then he will come after me, He says he needs me so. 20 The Crown indicated that it would not be pressing evidence of a complaint made by the complainant to SH on 25 November 2002 as relevantly "fresh in the memory" for the purposes of s 66 of the Evidence Act, but that it would seek to lead that evidence and evidence of the poem in order to rebut the anticipated suggestion to the complainant that she had fabricated the allegations (see s 108(3)(b) Evidence Act). At this stage of the proceedings, the Crown was only able to tell the Court that the poem was written when the complainant was about 14 or 15 years old, after the incidents the subject of Counts 1 and 2, but before the incidents the subject of Counts 3, 4 and 5. The appellant's counsel objected to the poem's admission, on the basis that the date of its creation was unknown, thereby depriving it of sufficient probative value. It was effectively conceded by the appellant's counsel that he would be suggesting fabrication. The Judge rule in the Crown's favour with respect to the poem (Tr 14/5/04 pp 3-8). Indeed, on 18 May 2004 and 19 May 2004, the appellant's counsel opened to both juries in these explicit terms The case for the accused is very simple and that is that the complainant, K, has fabricated her - made up the evidence in the case against, the allegations against, the accused. We will argue to you that once you've heard her evidence that you will find it unlikely and improbable. …… The accused case is very simple and that is that the complainant has fabricated her evidence and that we will argue that you would find her evidence unlikely and improbable in any event. (Tr 18/5/04 p 7: Tr 19/5/04 p 6)

21 When the complainant came to give evidence before the second jury about the poem on 19 May 2004, she read it aloud and was asked, "How old were you when you wrote that?" She replied "I'm not sure. I was in Year 8 I believe." The complainant said she had written the first two verses in English at school and finished it at home on the computer. The poem became Ex 1. Later in cross-examination, the complainant said that she had shown the poem to her English teacher, Mr Herd, and that her mother had seen the poem at some stage. The complainant gave further details of a conversation with Mr Herd, wherein he had praised the poem and asked her if it was true. The complainant said she had told him she was just having a bad day. 22 Mr Ian Herd, the complainant's English teacher in 2002 (Year 9) gave evidence that he had never seen the poem or any part of it and that he had never praised the poem to the complainant. He said the complainant was a quiet student who did not enjoy attention focussed upon her. He was aware that in the course of 2002, the complainant was experiencing personal difficulties, arising out of the death of her grandfather and her father's heart condition. The school staff were accordingly making allowances for the complainant's tardiness in completing work. He remembered the complainant's quite significant absences from school in the latter half of 2002. 23 LG gave evidence that she first saw the poem between Christmas and New Year in 2002. She went to the complainant's room and retrieved the complainant's poetry book from the bookcase. LG gave a copy of the poem to the investigating police on 13 February 2003. LG also gave evidence of the complainant's absence from school towards the end of 2002 on the advice of a treating psychologist. 24 Detective Senior Constable Jones gave evidence on 24 May 2004 of a first interview with the complainant on 2 January 2003 and a further interview on 13 January 2004. Whilst some questions had been put to the complainant in that later interview about the poem, it would appear that as at 20 May 2004 nothing more precise was known than what the complainant had said in evidence. It may be inferred that Detective Jones was asked to make enquiries with respect to the origins of the poem, following suggestions by the appellant's counsel in cross-examination of the complainant on 20 May 2004, that she had composed the poem after she had made allegations against his client as a means of bolstering her account. Moreover, the complainant's knowledge of computers was explored in cross-examination on 20 May 2004, specifically in the following questions and answers:- Q: You know very well that when you create a document, the date of that document that's created is recorded in your computer, isn't it? A: Yes Q: You know very well that if you go in and change the document, that date changes? A: I believe so, yes. Q: That is the reason that you told police officers that you had updated the document, isn't it, that is the poem? A: They asked if I had saved it originally or made any changes to it and I told them, yes, I did. Q: Yes, because you knew that it would therefore be difficult to prove when it was first created, isn't that right? A: At the time I didn't know this was coming to Court, I didn't know that the poem would have been used when I first created it. Q: I'm talking about when you were talking to the police? A: I have made the changes before that. Q: Because you knew that after you made those changes, it would be difficult to determine when the poem was first written, that's why you told the police you made those changes? A: They asked me if I made them. Q: And that's why you told them, isn't it? A: I was being truthful, I told them yes, I did change the poem a bit. Q: So the fact is the poem didn't exist before you made allegations against the accused did it? A: Yes it did. 25 On Friday 21 May 2004, Detective Jones accessed the home computer used by the complainant and digitally photographed the computer screen displaying the date of the poem's creation as a document on that computer as 18 July 2002. A modification to the document was recorded as made on 18 September 2002. The digital photograph became Ex 2 in the trial. 26 The only other evidence in the trial touching on the subject of the poem came in the course of the case for the appellant. A Mr Rodney Stern, a computer programmer and proprietor of a computer network support and consulting company, gave evidence on 25 May 2004 of the means by which the date and time on a home computer might be changed. A copy of a computer's help screen indicating how to alter the date and time of the computer system was admitted as Ex A. Mr Stern's evidence was that to change the date on which a document had been created would require changing the computer's date settings, copying the document to create a new file as at the adjusted date, then deleting the old file. Ex A did not in fact assist in the performance of that particular task. 27 It is convenient to deal with the second ground of appeal before turning to the issue of the Judge's directions.

Admission of the Poem into Evidence 28 The appellant's written and oral submissions on this ground essentially focussed on the correctness of the Judge's ruling on 17 May 2004, devoid of any consideration of the conduct of the trial by the appellant's then counsel, including the forensic decisions which he made. The appellant contends that the Judge made no ruling that the poem was capable of rebutting an attack on the reliability of the complaint to SH on 25 November 2002. Then it is said that the admission of the poem occurred before counsel indicated an intention to elicit evidence of the complaint to SH. The simple answer to these submissions is that they misconstrue the Crown's application. The Judge was not asked, nor required to consider the interrelationship, if any, between the poem and the complaint evidence. The former was, on the basis of the information available to the Judge at the time of the application, a prior consistent statement; the latter was complaint evidence. A reading of the trial transcript of 17 May 2005 bears out the construction summarised at par 17 above, that is, the Crown was seeking to lead both the evidence of complaint to SH and the poem in rebuttal of fabrication. In fact, as the appellant acknowledges, the Judge was not satisfied of the specificity of the complaint to SH and therefore rejected that aspect of the Crown's application. The Judge had already determined to allow the evidence of the poem. When the Judge ruled against the Crown on the evidence of complaint to SH, counsel at trial volunteered:- "Depending how the trial develops I might do my friend a favour and I might introduce it myself" (Tr 17 May 2005 p 12) 29 That is precisely what occurred. On 20 May 2004, the complainant was asked in cross-examination:- Q: And do you agree with me that you told …. The police that the reason you didn't tell anybody at first about these assaults is because you'd made that promise and you didn't want to break the promise? A: Yes Q: And you kept that promise for quite a long time you say, don't you? A: Yes I did. Q: Is this right, SH was the first person you told about this? A: Yes

…. Q That was some time in late 2002, is that right? A: I believe so, yes. ( Tr p 63)

Counsel at trial further suggested to the complainant that her complaint to SH was a lie. SH was called in the Crown case on 24 May 2004. She fixed the date of the conversation with the complainant and was not cross-examined. (Tr p 265). 30 As the cross-examination of the complainant demonstrates, counsel at trial chose to conduct the appellant's defence in a particular way. A vigorous and explicit attack on the complainant's veracity was mounted. It was put to the complainant a number of times that she had first fabricated the allegations to SH in November 2002 in order to ingratiate herself with SH, a slightly older girl who had previously confided in the complainant that she had been sexually assaulted. It was then put that once the complainant had lied, she was caught in the lie and was forced to maintain and embroider it. Critical to this case theory was the proposition that the complainant had created the poem at some time after her complaint to SH to bolster her lies and that she had manipulated the computer date settings to falsify the date of the document. All this was put to the complainant in clear, unambiguous terms and was denied by her. 31 In the context of how the appellant's case was put at trial, the following direction by the Judge, of which the appellant now complains, was entirely appropriate:- (following a summary of Mr Stern's evidence) In short the accused says that K composed the poem to bolster her complaints and her case. It is to rebut this allegation by the accused that K fabricated the various events that the poem was tendered and the Crown says it was written as the computer file suggests in July 2002. If you find the poem was written by K before she told SH that she had been sexually assaulted, then you may use it in determining whether or not the complainant fabricated the complaint against the accused in the way it was put by counsel for the accused in cross-examination. If you find that K did not fabricate her complaint to SH, that does not necessarily mean that the complainant is telling you the truth. The onus is still on the Crown to prove the account given by K is true and to do so beyond a reasonable doubt. (SU p 30 ) 32 This Court does not entertain appeals against conviction on the basis that such forensic decisions prove to be unwise or unfortunate. No affidavit evidence by counsel at trial was provided to the Court suggesting a misunderstanding on counsel's part of the import of the discussion on 17 May 2004. In my view, the experienced trial counsel and the Judge understood perfectly the Crown's application. Specific reference was made to the terms of s 108(3)(b) of the Evidence Act and to the decision of BD (1997) 94 A Crim R 131. At a point during the discussion when the Judge was reading BD, the appellant's counsel said:- As I understand it, if we deal with - I'm just not sure, are we dealing both with the evidence of SH and the evidence of the poem or?

His Honour replied: Both it seems to me Tr 17.5.04 p4 33 Any uncertainty which existed as to the date the poem was written was capable of being clarified by a Voir Dire hearing at any time between 17 May 2004 and lunchtime on 19 May 2004. The complainant did not give evidence of the poem until some time after the luncheon adjournment on 19 May 2004. The appellant's counsel did not ask for a Voir Dire, nor did he seek to otherwise renew his objection to the poem. No doubt that was because in so far as the complainant had nominated in chief that Year 8 (2001) was the time of the poem's creation, it was after Counts 1 and 2, and relevantly prior to her complaint to SH and her allegations to police in January 2003. 34 The significant probative value of the poem was noted by the Judge in the course of the Crown's application and, in my view, correctly so. The appellant maintains that in so far as the poem generally described sexual conduct, it would not have assisted the jury in determining whether the complainant's allegations were worthy of belief. That submission must be rejected. The title of the poem corresponds to the appellant's alleged instruction to the complainant not to tell her mother after the conduct the subject of Count 1. It was relevant to the jury's assessment of the complainant's credit, in the same way as the defence proposition that the complainant had refrained from telling anyone of the appellant's conduct up until November 2002 was relevant to an assessment of the complainant's credit. 35 This case is a far cry from the circumstances considered by Simpson J in R v Whitmore [1999] NSWCCA 247, upon which the appellant relies. Whitmore was concerned with a "denial of the events alleged without more" [39]. Whilst a ruling on the admissibility of evidence, in anticipation of the issues at trial, may subsequently be shown to be wrong, the unfolding of the evidence in the appellant's trial entirely vindicated the Judge's decision to grant leave under s 108(3)(b). As I have already demonstrated, that was due in no small measure to the nature and scope of the attack on the complainant's credit. 36 The appellant further submits that the Judge erred in that he did not consider the terms of s 192 of the Evidence Act in deciding to grant leave under s 108. No reference was made to s 192 by either counsel. Section 192 requires a court to take into account a number of matters when considering the grant of leave, such as that contemplated by s 108(3)(b). Those matters relate to the effect of the grant of leave on the length of the hearing, the question of unfairness to a party or a witness, the importance of the evidence sought to be adduced, the nature of the proceedings and the power of the court to adjourn, make orders or give directions. In the present context, I would reject the appellant's submission that the admission of the poem unduly added to the length of the trial. The Crown asked seven questions in chief relating to the poem. The complainant was cross-examined over approximately six pages of transcript on the subject of the poem and her knowledge of computers, out of a total of 78 pages of the transcript relating to her cross-examination. Detective Senior Constable Jones, Mr Herd and the defence expert, Mr Stern, gave evidence relating to the poem over a total of 43 pages of the transcript. The trial transcript amounted to approximately 380 pages. To the extent that the duration of the proceedings was marginally affected by the admission of the poem, it was a necessary consequence of the matters in dispute between the parties. Hence, It could not be said to have unduly lengthened the trial. I fail to see how the admission of the poem was unfair to the appellant; rather, I am inclined to the view that any other course would have been unfair to the Crown, in view of the way in which the trial developed. It is often overlooked that references in the Evidence Act to "a party" are equally capable of application to the prosecution; see R v El-Kheir [2004] NSWCCA 461 at [63]. The poem was an important piece of evidence in the context of the issues at trial and the appellant's counsel was given every opportunity to meet it. He did so in the appellant's case. 37 Even if the Judge had directed his attention to s 192, the grant of leave was well justified under the terms of the provision. Absence of express reference to s 192 does not necessarily amount to error : R v Reardon [2002] NSWCCA 203; R v Selsby [2004] NSWCCA 381. I am persuaded that it did not constitute an error in this case and that there has been no miscarriage of justice in these circumstances. Ground 2 fails.

Directions Relating to Counts 3, 4 and 5 and the Basis of the Verdict on Count 3 38 Grounds 3 and 4 are to be considered in the light of the evidence which was available to the jury in support of Counts 3, 4 and 5, and the approach adopted by counsel in response to the issues which emerged in the trial. It was against that background, that the Judge formulated his directions to the jury. An assessment of the adequacy of those directions must have regard to that context. 39 The appellant's complaint in respect of Ground 3 is that the Judge omitted to say that the evidence of the complainant "must be scrutinised with great care", according to the judgment of Lee J in R v Murray(1987) 11 NSWLR 12 at 19. The appellant further argues that a Longman direction given in relation to Counts 1 and 2, whilst not erroneous, compounded the inadequacy of the Murray direction. It is asserted that the inclusion of the phrase "you must scrutinise her evidence with great care" in the Longman direction only served to highlight its absence from the Murray direction. 40 The full direction given by the Judge was:- It is not the law that the complainant's evidence must be supported by the evidence of witnesses who confirm her account. Here the Crown case essentially depends on the evidence of K. It is therefore important that you examine her version of events to determine whether she has given you a reliable account. In doing so you will remember her evidence and her demeanour on the CCTV. If after considering the question of reliability you find that she has given you an essentially truthful version of events, you should rely on her in determining the question of whether the Crown has proved the five charges beyond a reasonable doubt. On the other hand if you are not persuaded that she had given you a reliable version of events, then you would not be satisfied of the guilt of the accused beyond reasonable doubt and he must be acquitted. Now members of the jury you have heard evidence that K first complained or told anybody about what she says the accused had done to her when she told her friend SH in late 2002. She did not go to the police until January 2003. ….[There followed a direction on the delay in complaint] I draw all these matters to your attention so that you will give them due consideration when scrutinising the evidence of the complainant. Nothing I have said means that you cannot find, after considering the warnings that I have directed you to take into account, that the complainant's evidence was both truthful and reliable, such as you can accept it beyond reasonable doubt. Whether you do is a matter for you. …. I should also remind you that the accused does not have to call evidence nor does he have to prove anything. It is for the Crown to prove these charges against the accused and to prove each one beyond reasonable doubt. Members of the jury I want to give you a specific warning about the delay and its possible consequences for the accused as far as counts one and two on the indictment are concerned. It is alleged these offences occurred in 1999 and 2000. Complaint was first made to SH in November 2002 and the police in January 2003, some years later. I therefore direct you in relation to these two counts that it would be unsafe to convict the accused based on the evidence of K and you must scrutinise her evidence with great care before you can rely on it to prove the first two charges on the indictment. 41 It is important to place the impugned direction in the context of the summing up as a whole, and in the context of the evidence at trial. This was not a case of "word against word", where the evidence of the complainant was wholly unsupported by other evidence tending to confirm her account of the appellant's sexual conduct towards her. In respect of all counts, the Crown relied upon the appellant's conversations with LG in early 2003 as capable of amounting to admissions. Whether they were so regarded by the jury was the subject of appropriate directions by the Judge, about which no complaint is made. LG's evidence of the nature of those conversations, if accepted by the jury, constituted powerful evidence in support of the complainant's allegations. In addition, LG's evidence of the occasion the subject of the fourth count tended to confirm the complainant's evidence in respect of the appellant's presence in the bed next to the complainant, despite, on the appellant's own account, the existence of a "rule" prohibiting that contact. 42 The direction of which Lee J spoke in Murray as "customary" (not mandatory) was, in any event, in response to the abolition of the common law rule requiring an "unsafe to convict" direction where a complainant's evidence was uncorroborated. Lee J commented that the abolition of that rule did not mean that a judge could not or should not "as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case." (Emphasis added) (19D-E). The distinction between cases falling into that category and those where evidence supportive of the complainant is available to a jury has been recognised: R v Zafiris CCA (unrep) 14.9.98; R v Gust NSWCCA 265. In the latter circumstances, a direction of the type referred to in Murray is not required, although there may be cases where such a direction should be given, for example, R v V CCA (unrep) 16.4.98. As Hidden J observed in Gust, "the matter should not be approached with rigid preconceptions about when a direction might be required. The evidence in each case must be assessed with an eye to ensuring a fair trial." [60] 43 In the light of the totality of the evidence and the absence of any request from counsel at trial for a further direction, I would conclude that "in the context of the atmosphere as it existed at the trial, and in the contemporary awareness of the manner in which the summing up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing up" : R v Haeney CCA (unrep) 13.6.98. See also R v Abusafiah (1991) 24 NSWLR 531 and R v Aziz [1982] 2 NSWLR 322. Slavish adherence to a direction including "scrutinise with great care" was not required in the circumstances of the case. I would not uphold Ground 3. 44 Ground 4 concerns the third count, that is, the incident fixed by the complainant as an occasion when the appellant entered her bedroom as she was using her mobile phone and lay on the bed next to her. The alleged indecent assault took place shortly prior to LG entering the room, and inquiring what was "going on"; thereafter the complainant overheard the appellant speaking to LG of the complainant's plan to run away from home. 45 The appellant relies upon the Crown's opening to the effect that Count 3 was committed in 2002 and the range of dates pleaded in the indictment (31 July 2002 to 1 January 2003). Next, the appellant submits that, because the complainant's evidence was that this event occurred in 2001, her evidence was incapable of supporting a verdict of guilty on Count 3. 46 Whilst the appellant concedes that LG's evidence referred to an occasion in December 2002 when LG entered the complainant's bedroom and saw her daughter and the appellant lying across the bed, it is submitted that, because of certain discrepancies between the evidence of the complainant and LG, the jury could not have been satisfied that both witnesses were describing the same incident. 47 Once again, the submissions fail to have regard to the conduct of the trial. The appellant at no stage disputed that an incident meeting the description given by the complainant and LG did in fact occur, but for the sexual activity alleged by the complainant. It is instructive to note the following passages from the appellant's examination in chief and cross-examination: Examination in Chief Q: You've also heard evidence of a time when K says she was in bed sometimes towards the end of 2002 and she was texting somebody on the telephone and you came into her bedroom, do you recall hearing that? A: Yes, I recall hearing that. Q: Do you remember that incident? A: Yes. Q: Are you able to say what was happening that night - well first of all do you remember what time it was? A: No, I don't know what time it was. Q: Was it in the evening? A: It was at - like, at night, like, say past 8:30. Q: Do you remember where L was at that time? A: Yes, in her bedroom. Q: And where had you been before you came and saw K in the room? A: I was watching tv. Q: And are you able to say what happened, did you go into the room? A: Uh hm, yes I did. Q: And what happened then? A: She was texting, I don't know who she was texting or what, and then we talked, discussed earlier when we were downstairs that she wanted to run away, not actually run away from home, but run away down to a park to meet S and --- Q: Okay, so she was just talking about running out of the home that night? A: Yes, that's right. Q: And was there a conversation - so there was a conversation between yourself and K, is that right? A: That's right, yes. Q: And then at some point did - I withdraw that. And at any time did you touch K's breasts? A: No. Q: Sorry, what was that? A: No. Never. Q: Did you touch any part of her body? A: No. Q: Did you take her hand and try and put your - her hand on your penis? A: No, never. Q: Do you remember if L came into the room at all during that time? A: Yes I do. Q: Do you remember what she said? A: Yes. Q: What was that? A: She said "What's going on?" Q: What was she angry or aggressive, or what was her mood? A: No, I think she was just normal, I think she just heard us talking and she wanted to know what was going on. Q: And then what happened? A: Then I got - L went back to her room and I went in to explain to L what was happening with K, because if K ever told me anything I always told L, so L would always know what was going on as well. Q: So you told L what was going on? A: That's right. Q: And then what happened after that? A: And L said she would talk to K in a roundabout way, that she wouldn't betray the trust between us, that she would just talk to her and find out in a different way. …. Cross Examination Q: There was a time when you say that you went into K's room at night? A: Yes. Q: When on that night and there was a conversation about running away, right, that's what I'm talking about? A: Yes. Q: When was this first raised? A: That she wanted to run away? Q: Yes? A: In the tv room. Q: In the tv room? A: Uh hm. Q: Where did she want to go to? A: Where did she tell me she wanted to run away to? Q: Yes? A: Down the park to meet S. Q: Well what did she say to you? A: She said she wanted to go down there and meet S -- Q: She wanted to go down there -- A: ---and she didn't want her mum to -- …. Q: Well what did you say to her? A: I said, "Why do you want to do that?" Q: Were you talking her out of it? A: I was trying to. Q: And what did she do then? A: L came in. Q: I see but the conversation started in which room of the house? A: In the tv room. Q: In the tv room, well what happened after that, after being in the tv -- A: I tried to talk her out of it, then she went up, then we stopped talking about it, then I went up into the room, and asked if she was all right, and she said she still wanted to go down to the park and meet S and then it started from there, again. Q: What, you didn't go to see her mother and say, look, she wants to go down the park? A: No I told her mother after. 48 The appellant's attention was specifically directed by his counsel to an incident "towards the end of 2002". He remembered that incident. It was never suggested to the jury that the complainant, LG and the appellant were each recounting a different event. No application was made for a verdict by direction on this count. By way of contrast, the dates relating to Counts 2 and 5 were amended by consent at the close of the Crown case. It is abundantly clear that no issue was taken with the way in which Count 3 was framed. The appellant's counsel at trial made this submission to the jury in his closing address:- Well, depending on whose time line you use, I suppose, because you remember Mum has said this happened in, she recalls her side of the incident that it happens in around about December 2002". Ts 26.5.04 p 36 .

It is difficult to regard that submission as anything other than an acknowledgment that, to the extent that there was a disparity in the evidence about the date of the incident, it was available to the jury to accept LG's evidence as to the approximate date, rather than the complainant's evidence in that respect. 49 It is hardly surprising therefore, that the Judge was not asked to, and did not treat the dates nominated in the indictment in respect of Count 3 as vital to proof of that charge. The Judge was not required to direct the jury that they must be satisfied beyond reasonable doubt that the offence the subject of Count 3 occurred between 31 July 2002 and 1 January 2003. That obligation would only have arisen if the dates specified in the indictment had been made the essence of the offence. 50 This case fell within the circumstances described by Bray CJ in R v Pfitzner (1976) 15 SASR 171 at 185:- Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it ." (Emphasis added).

See also R v LTP [2004] NSWCCA 109. None of the four categories identified by Grove J in R v Stringer (2000) 116 A Crim R 198 at 202 apply in this case, so as to render the dates of the essence of the offence. No alibi or lack of opportunity was raised by the appellant in respect of Count 3, so that the time of the offence might have assumed critical importance : see R v Macdonald (1995) 84 A Crim R 508; R v Westerman (1991) 55 A Crim R 353; R v VHP CCA (unrep) 7.7.97. 51 In my view, it was open to the jury to accept LG's evidence as to the time of the incident underlying Count 3, as was suggested by counsel at trial. In any event, the complainant's evidence of the appellant's behaviour was capable of supporting a verdict of guilty. This ground also fails.

Directions in respect of Relationship Evidence 52 The Judge gave the following direction, after summarising the evidence of the complainant relating to the appellant's almost daily visits to her room early in the morning, when uncharged acts of indecent assault took place:- The Crown must identify specific acts and occasions for each count on the indictment and your only concern is deciding whether or not the Crown has satisfied you beyond a reasonable doubt that the accused Mr Mearns did in fact do the things alleged and set out in the five charges. You are not concerned with what he may have done on other occasions. That does not mean that you may not take into account some other wider sexual context history if it is proved. You do not do that in order to substitute those other acts for the ones that are charged against the accused. This evidence is led for an entirely different purpose and it is important that you understand the reason why it is done. The reason is to put the particular acts that are alleged in the indictment into a context and if appropriate to show the existence of a relationship between the accused Mr Mearns and the complainant K. Otherwise, you might consider or wonder as to why these apparently isolated and random acts occurred suddenly without reason. For that reason the law does permit evidence of a wider sexual history to be proved to avoid artificiality or unreality in the presentation of the evidence and to demonstrate, where appropriate, the existence and continuation of that relationship on the part of the accused and his feelings of passion towards K. If you had just heard about isolated incidents you would get an unreal picture. I emphasis to you that you must not substitute what you have heard about other sexual acts for the specific acts charged in the indictment. You must not reason on the basis well the accused might have done something wrong on other occasions relating to this girl and therefore we will convict him. You cannot and must not do that. You are concerned with the five offences set out in the indictment and the Crown has to prove each of those to your satisfaction beyond a reasonable doubt. You have heard the wider evidence and its purpose is to simply put the other matters that are alleged on the indictment into context. 53 No request for a re-direction was made at trial. The appellant now takes issue with this direction in a number of respects. It is submitted that the evidence of uncharged acts was effectively left to the jury as both relationship evidence and tendency evidence, despite the introduction and use of the evidence by the Crown as relationship evidence only. This was said to arise from the reference in the direction to "the existence and continuation of the relationship on the part of the accused [and] his feelings of passion towards K", in combination with a discrete portion of the Crown's closing address. It is then said that the direction fell short of what was required in order to prevent the jury from using the evidence on a tendency basis, that is, for a purpose other than that for which it was before them. Specifically, the appellant complains that there is a significant omission in the direction, namely a prohibition on the use of the evidence to reason that the appellant had a propensity to commit such offences and on the use of the evidence of uncharged acts toward proof of the counts in the indictment.

54 Before dealing with the distinction between the direction given and the requirements of the law, the Crown Prosecutor's closing address deserves attention. The appellant's submission is that by saying to the jury "people are creatures of habit", the Crown Prosecutor had introduced the notion of tendency to the jury's deliberations, and that the Judge's directions compounded that error. If one has regard to the portion of the address containing those words, it does not bear out that conclusion. The Crown Prosecutor's comment in this regard comes in the course of a general submission to the jury concerning the credibility of the complainant, and the similarity of the conduct alleged in counts 1 and 2. Following a reference to the promise extracted by the appellant from the complainant not to tell her mother, the Crown said: "The second occasion you might think is a result of an ability now on behalf of the accused person to continue what he's done, to be assured of the little secret, to take advantage of the fact that the mother went to bed earlier than he did …. If you think about it, the similarity between the first two counts simply shows a person who did things in a similar way. It would not be surprising to find out that he did more of the same thing the second time and in fact more or less the same thing on a number of occasions. People are creatures of habit. He may well have known how far he could get away with things, how far the promise and the little secret extended." 55 Read in its proper context, the Crown Prosecutor was referring to the protection from discovery afforded by the complainant's promise of secrecy, and by LG's practice or habit of retiring to bed at an earlier time than the complainant and the appellant. The submission went no further than inviting the jury to consider the almost identical assaults in the loungeroom, as consistent with repeated exploitation of opportunities offered by the circumstances. 56 Clearly, the appellant's counsel heard nothing in the course of the address that suggested to him that tendency had been raised. Nothing was said in the course of his closing address that was critical of the Crown's submission, nor was the matter raised with the Judge. 57 In order to appreciate the appellant's criticisms of the Judge's direction, it is relevant to the determination of this issue to briefly review the authorities which have examined directions of this nature. It should be remembered that prior to the Evidence Act these authorities discussed the admissibility and use of evidence of uncharged acts of sexual assault against the complainant under two broad headings, namely "guilty passion" and contextual evidence. The following dicta from Hunt CJ at CL in R v Beserick (1993) 30 NSWLR 510 is illustrative :- The true bases for the admissibility of evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge were analysed in some detail most recently by this Court in Regina v Sydney Wickham (17 December 1991, unreported). The evidence is admissible, first, in order to establish a sexual relationship which makes the complainant's allegation more likely to be true. The "guilty passion" of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge . In other words, it makes it more likely that the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J); Harriman v The Queen (1989) 167 CLR 590 at 631 (McHugh J); B v The Queen (at 2, 9, 10, 19 ). Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason . Wickham's Case provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant. Such evidence provides the key to an assessment of the relationship between them and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated: B v The Queen (at 439; see also at 433, 435). (emphasis not in original) 58 Wickham was a case where the evidence of uncharged acts was admitted for both purposes, hence this Court's endorsement of the direction given at trial. That direction was :- The Crown, as I have said, must identify specific acts and occasions for each count and it must prove those particular acts and not some other acts on other occasions; that is, fundamental to this case. That does not, however, mean that you may not take into account some wider sexual history if it is proved; that is the evidence of other acts of a sexual nature between the accused and the complainant. You do not do that in order to substitute those other acts or occasions for those charged. The history of a wider series of sexual events is led for a different purpose altogether and it is important for you to understand what that purpose is. It is to place the evidence of the particular acts into a true and realistic context and, where appropriate, to show the existence of a guilty passion on the part of the accused for the complainant . Otherwise, you see, a jury such as yourselves may wonder as to the likelihood of apparently isolated acts occurring suddenly without any apparent reason, without being repeated. If a complainant gave evidence of isolated acts of that kind, you would be entitled to say to yourselves as people of common sense: well, really, it is very odd for there to be such isolated acts between these persons which were not repeated or which had no precursor. For that reason, you might have cause to entertain some doubt as to the likelihood or accuracy of the witness. If, however, the particular acts charged are placed in a wider context, that is a context of an ongoing history and show or tend to show the existence of a guilty passion on the part of the accused or the complainant, then that curious feature would disappear. It is for that reason that the law permits a wider sexual history to be proved. It is to avoid artificiality or unreality in the presentation of the evidence and to demonstrate, where appropriate, the existence and continuation of a guilty passion on the part of an accused person for another person . For one or two incidents to be artificially isolated and selected and for a witness to be confined to them could make it very difficult for her to proceed intelligently with her evidence. To pick out, for example, two incidents separated by lengthy periods could leave you with a very strange and unrealistic account. …

However, I emphasise to you again that you must not substitute evidence of other acts for the specific acts charged and you must not reason on the basis : well, this accused may have done some wrong things on other occasions relating to this girl and therefore, we will convict him on these two particular acts. The Crown must prove those particular acts beyond reasonable doubt. You have the wider history merely to place her evidence into context and, if you think it appropriate, to show the existence of a strong and guilty passion for her by the accused." 59 The High Court in BRS (1997) 191 CLR 275 ; (1997) 95 A Crim R 400 was also concerned with the admissibility of evidence of uncharged acts in a pre Evidence Act trial. In BRS, evidence of a similar fact or propensity nature had been led, without objection, from a witness other than the complainant, in rebuttal of evidence of good character raised by the accused. No directions at all were given at trial addressing the dangers of propensity reasoning. The following passage from McHugh J's judgment in BRS is of general significance :- "If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence." (at 305)

60 Following the introduction of the Evidence Act, it was made clear in R v Harvey CCA (unrep) 11/12/96 and R v AH (1997) 42 NSWLR 702 that reliance upon evidence of uncharged acts as demonstrative of "guilty passion" required compliance with those provisions in the Act regulating tendency evidence. Where evidence of uncharged acts was relied upon solely for the purposes of placing the charges in their true and realistic context, the tendency provisions were not enlivened. However, the content of the directions to the jury as to the permitted use of such evidence varies in a critical respect according to the basis of its introduction. In R v Greenham [1999] NSWCCA 8, the direction given by Wood J in Wickham was recommended where evidence was admissible on both contextual and tendency grounds. The last paragraph of the Wickham direction set out above was singled out by the Court for approval. Clearly, the critical distinction (for present purposes) between the direction given in Wickham and the direction appropriate to evidence solely of a contextual nature is the absence of any warning against propensity reasoning in the former. Provided the jury is satisfied beyond reasonable doubt of the specific uncharged acts relied upon to show a "guilty passion", they are available to be used as evidence of the accused's tendency to engage in sexual activity with the complainant and therefore towards proof of the counts in the indictment : Gipp v The Queen at 132 per McHugh J ; R v AN [2000] NSWCCA 372; R v MM [2000] NSWCCA 78; 112 A Crim R 519. 61 The content of a direction in circumstances where uncharged acts were relied upon solely to provide a context for the charged acts was addressed in Gipp v The Queen by McHugh and Hayne JJ at 133 as follows :- "In this case, the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges. No doubt, it would have been better if his Honour had gone further and expressly told the jury that, if they found that there was a previous or continuing history of incidents, they were not to use that finding to reason that the accused committed the offences charged. But his Honour's failure to take that further step does not mean that he necessarily misdirected the jury or that the verdict is unsafe or unsatisfactory or that there has been a miscarriage of justice." 62 Similarly, in R v ATM [2000] NSWCCA 475 Howie J said:- "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 AH , above; BRS v The Queen (1997) 191 CLR 275 at 305 per McHughJ: R v RNS [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 , above, at [28] - [29] approving the directions given in R v Beserick , above, and R v Wickham (NSW Court of Criminal Appeal, unreported, 17 December 1991). (Emphasis Added )

63 I pause to observe that Howie J appears to be using the term "relationship evidence" to encompass both contextual and tendency evidence, consistent with the use of the term "sexual relationship" by Hunt CJ at CL in Beserick. Since then however, the term "relationship evidence" has been used by counsel at trial, by trial judges and occasionally by this Court to signify contextual evidence only. I venture to suggest that this terminology may be productive of confusion ; indeed, one aspect of the appellant's complaint is that references to the relationship between the appellant and the complainant by the Judge raised the spectre of tendency. I return to this aspect of the appellant's argument below. I note further that Howie J observes a distinction between the propensity warning, that is a direction concerning the limitation on the use to be made of the evidence, and the further warnings contained in the second of the paragraphs set out above.

64 In R v TAB [2002] NSWCCA 274, Levine J, with whom Mason P and Sully J agreed, dismissed an appeal, one ground of which was substantially the same as the present ground. The prosecution relied upon evidence of uncharged acts as contextual evidence only, yet the trial judge gave a direction in identical terms to that given in Wickham and approved in Greenham. The Crown Prosecutor sought a re-direction to the extent that the terms "guilty passion" and "strong desire" should be withdrawn. That was done, but nothing was said to the jury specifically to warn them against propensity or tendency reasoning. Referring to the use of the term "guilty passion", Levine J said :- "I am not persuaded that this reflected confusion in the trial judge's mind as to the basis upon which the fairly minimal "relationship" evidence was admitted, namely solely as relationship and not tendency/propensity evidence. It was an unfortunate slip. I am not persuaded further, as was submitted for the appellant, that the jury must have been confused to the point where they did that which his Honour in fact twice enjoined them not to do (notwithstanding his use of "guilty passion"), namely to take into account "some wider sexual history if it is proved: that is the evidence of other acts of a sexual nature between the accused and the complainant. You do not do that in order to substitute those other acts on occasions for those charged" and where, towards the end of the second extract above, his Honour emphasised once again how the jury must not use the "relationship evidence" and what its purpose was. I am not persuaded by the submissions by senior counsel for the appellant that this unfortunate inadvertence resulted in the outcome he submitted and thus a miscarriage." 65 His Honour was influenced in reaching this conclusion by the judgments of McHugh J and Hayne J in KRM v The Queen (2001) 206 CLR 221 ; [2001] HCA 11, both of which indicated that, whenever evidence of uncharged acts is admissible to explain the nature of the relationship between the complainant and the accused, trial judges "will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it" (per McHugh J at 233). Nothing in those judgments, or in the passages set out from Gipp ,BRS and ATM, supports the contention that a propensity warning is required in every such case, although the judgments express a strong preference for that course. 66 Returning to the direction given by the Judge, I am of the view that the appellant's contention that it inadvertently introduced notions of "guilty passion" (and therefore tendency) is not without foundation. A direct comparison between the Judge's direction and the direction given in Wickham leads me to the conclusion that the Judge relied substantially on the latter direction, whilst overlooking the critical distinction between that case and the appellant's trial. In particular, there is a symmetry between the respective passages in italics set out above (at par. 50 and 56). The only difference is that the Judge refers to "the existence of a relationship between [the appellant] and the complainant" instead of "the existence of a guilty passion on the part of the accused for the complainant". However, a link is then made between that relationship and the appellant's passion towards the complainant in the latter part of the direction. I note that the Judge refrained from any further reference to "guilty passion" or "passion", restricting the final paragraph to considerations of context. The direction included the "further warnings" articulated by Howie J in ATM, but did not include a warning against using the evidence to establish a propensity on the appellant's part.

67 It remains to determine whether the direction and the omission of a specific anti-propensity warning gave rise to "a real risk that the jury improperly used the 'general behaviour' evidence to convict the [appellant]" : Gipp per McHugh and Hayne JJ at 139. The answer to that question lies in the conduct of the trial and the remainder of the summing up. 68 At the time the complainant gave the evidence of the uncharged acts, it occupied one page of the lengthy trial transcript and did not feature again. The cross-examination of the complainant consisted largely of blanket propositions that the complaint was lying, interlaced with questions going to alleged detailed inconsistencies between her first and second statement to police. The poem and LG's evidence assumed considerable importance, to the extent that it might be said that the evidence of uncharged acts faded into the background. 69 The only reference made to the evidence of uncharged acts by the Crown Prosecutor in the closing address was in the following terms:- You'll appreciate that from K's perspective that what was happening was not just five separate, specific instances, two in 1991 or going over to early 2000 and there in 2002. Specific, neatly drawn incidents you can start at the beginning and move to another incident. I mean for a start she had her own life, obviously she went to school, she had friends, she had other activities, she lived for some time in her father's house, there were other things that were occurring in her life. Secondly, there were other offences occurring to her in a pattern more often that not it would seem in the morning when she was in her bed before the accused went off to work. In considering any type of lack of accuracy on her part as to what occurred I would ask you to take into account the fact that these are not isolated occurrences. Obviously the Crown has to prove its case and prove it by evidence that is satisfactory both in accuracy and reliability and I don't detract from that. 70 The appellant's counsel at trial made no reference to it in his closing address and the only time it surfaced in the summing up was in the direction set out above. The remainder of the summing-up addressed the need for the Crown to prove the charges against the appellant beyond reasonable doubt and the Crown's reliance on the evidence of the complainant. An extensive direction was given on the issue of delay in complaint, including the difficulties faced by the appellant in meeting allegations extending over a number of years. The Judge then directed the jury to take all these matters into account "when scrutinising the evidence of the complainant." The jury was directed that the complainant's evidence must be found to be truthful and reliable, "such as you can accept it beyond reasonable doubt". 71 Finally, and more importantly, the whole of the direction under consideration, but for the two sentences which obliquely raised aspects of tendency evidence, was entirely in conformity with restricting the use of the evidence to understanding the broader sexual history or context within which the charged acts occurred. I do not accept that those two sentences, in the course of a lengthy summing-up, would have alerted the jury to a "forbidden chain of reasoning". The appellant's counsel at trial, a person who is attuned to the discernment of potentially prejudicial directions, did not interpret those sentences in that way. Still less would a number of lay persons divine such a meaning from these unfortunate words. 72 The absence of any direction to the jury at the time the evidence of uncharged acts was given does nothing to detract from the force of that consideration. In TAB and in R v GS [2003] NSWCCA 73, this Court held that the practice suggested by Hunt CJ at CL in Beserick should ordinarily be followed, but that a failure to do so does not inevitably cause a trial to miscarry. In the result, the appellant has not persuaded me that there has been a miscarriage of justice and Rule 4 applies.

Appeal Against Sentence 73 The appeal against sentence does not assert any error on the part of the Judge in the exercise of his sentencing discretion. The sole ground is that the sentence is manifestly excessive. 74 The appellant was sentenced on 2 September 2004 in the following terms:-

Counts 1 and 2: On each count, 12 months' imprisonment, fixed term, to date from 4 June 2004, expiring 3 June 2005.

Counts 3 and 4: On each count, 12 months' imprisonment, fixed term, to date from 4 December 2004, expiring 3 December 2005.

Count 5: Non-parole period two and a half years to date from 4 December 2005, expiring 3 June 2008; balance of term two years, expiring 3 June 2010. 75 An effective sentence of six years, with an effective non-parole period of four years does not strike me as manifestly excessive in circumstances where the appellant repeatedly sexually exploited a young girl in his care, over an extended period. His subjective circumstances may have been favourable, but they could not be permitted to outweigh the need to mark the objective gravity of the offences. 76 The Judge accepted that the offences were towards the lower end of the scale for matters of this type and sentenced accordingly. The Judicial Commission statistics reveal that the sentences imposed for each of the offences conformed with that assessment. I can see no basis for the interference of the Court and I would dismiss the sentence appeal. 77 The orders I propose are:-

Leave to appeal against sentence granted; Appeal dismissed. **********

13/12/2005 - - Paragraph(s) 13/12/2005 - - Paragraph(s)

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