Finally it was explicitly put to her:
"Q. Mrs [B], you understand what I'm saying to you, I'm saying that you fabricated the allegations against your father?
A. I have not".
23 It is appropriate to set out here the way in which the matter of "relationship evidence" was dealt with, not without a great deal of controversy, by the learned trial judge in his charge to the jury. The relevant part commences:
" You will recall, ladies and gentlemen, the learned Crown Prosecutor, in opening the Crown case to you, said that the complainant will tell you, in addition to the charges on the indictment, she will refer to similar things or other matters, not subject to any charge, happening on other occasions. This is what is commonly referred to by lawyers as relationship evidence. As I have made clear, before you can convict the accused in respect of any count in the indictment you must be satisfied beyond reasonable doubt that that particular offence has been proved to have been committed . Now, in addition to the evidence led by the Crown, specifically directed to the particular counts in the indictment, the Crown has led evidence of other acts of alleged misconduct by the accused towards the complainant. I shall, for the sake of convenience, refer to the other evidence as evidence of other acts". (emphasis added)
24 His Honour then proceeds to summarise the evidence and continues:
"The Crown, as I have said to you, must identify specific acts and occasions for the court and it must prove these 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 on 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 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. (emphasis added)
If a complainant gave evidence of isolated acts of that kind, you would be entitled to say to yourselves, as people of commonsense, 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 may 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 for the complainant, then the curious feature would disappear. It is for that reason that the law limits [sic; scil. "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 strong desire on the part of an accused person for another person. For one of 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 act charged and you must not reason on the basis, 'well, this accused must have done some wrong things on other occasions relating to this girl and therefore we will convict him on these two particular acts' or the number of particular acts. The Crown must prove those particular acts beyond reasonable doubt and those acts are the ones referred to in the indictment. You have the wider history merely to place her evidence in the context and, if you think it appropriate, to show the existence of a strong desire for her by the accused". (emphasis added)
25 In the absence of the jury the following exchanges took place:
"CROWN PROSECUTOR: Your Honour referred to the relationship evidence and used the words 'guilty passion' on, I think, three occasions.
HIS HONOUR: Yes, and then I corrected myself at the bottom there.
CROWN PROSECUTOR: I know, but could your Honour just make it clear - -
HIS HONOUR: And then I said - -
CROWN PROSECUTOR: Your Honour said all the right words but used that 'guilty passion' a couple of times.
HIS HONOUR: I will, and I think it's important. One of the reasons I stopped was because I did refer to it and I can't think of the name of the case, I think there is one recent one - anyway, it said that it wanted to get rid of the words 'guilty passion'. But the direction that I had had it in it.
CROWN PROSECUTOR: That's the..(not transcribable)..when it didn't matter.
HIS HONOUR: I certainly will correct that.
CROWN PROSECUTOR: The only other factual thing, and your Honour sort of said, "There is no evidence whether she ever screamed or did anything on the other occasions". I think her evidence clearly says, "On no occasion I ever said anything".
HIS HONOUR: And I think I said that again after.
CROWN PROSECUTOR: You did say that but your Honour said, "There is no evidence of it but…". So, that was the only thing.
SHORT ADJOURNMENT
RESUMPTION
IN THE PRESENCE OF THE JURY
HIS HONOUR: Before I continue on, if I can just go back to when I was giving you a direction with respect to relationship evidence and a term I used and I'm not sure how it came into my vocabulary but it should not have and I want to take that term out and have you expunge it from your minds altogether. I said this, in effect, I will not go through all of it, but I said, "If, however, the particular acts charged are placed in a wider context, that it is a context of an ongoing history and show or tend to show the existence of a "guilty passion." Now, the term "guilty passion" I should never have said and that is the term I want you to expunge from your minds completely. And, I should have said, "show or tend to show the existence of a strong desire". And, again, I said it on two occasions actually, and the other occasion was "the existence and continuation" and I used the term "guilty passion" again. I should not have said it there either . It should have been "the existence and continuation of a strong desire on the part of the accused person for another person". "Guilty passion" is out .
CROWN PROSECUTOR: Your Honour, should not use that term either. The Crown really led it only as relationship evidence to put it in the context. Your Honour has given the directions in relationship evidence but we didn't itemise - for us to lead it in the other way we have to go through and detail every one. We didn't do that so the Crown says that just falls within relationship evidence to put it within context, neither guilty passion or strong desire is not to be used that way.
HIS HONOUR: It's not necessary at all.
CROWN PROSECUTOR: It is not to be used in that way, it's just to be used in the context of placing it in - not showing they were isolated events.
HIS HONOUR: Ladies and gentlemen, you have just heard Mr Crown correct me again, and Mr Crown is quite right, I should not have used that at all anyway. What the other acts complained of, and they are referred to as 'other acts', they are only to put it all in context, to show that there were not just these offences on the indictment had occurred by themselves. They were there, given to show how they were placed and the context in which they were put to make it a way for you to look at them in deciding these particular matters." (emphasis added)
26 In this context I turn to the appellant's submissions. It was argued that counsel at trial had submitted that the allegations were in the nature of general sexual misconduct and were insufficiently precise to enable them to be "dealt with". I do not understand what is meant by the expression "dealt with", in the light of the stance and structure of the defence "case". His Honour allowed the evidence and it was presented in the form set out above. It was submitted that the prosecution was actually introducing evidence in the nature of "tendency evidence". Thus, it is submitted that the effect of what was "proposed" and what then occurred was that incorrectly the prosecution avoided having to particularise acts, dates and places and was incorrectly permitted to lead evidence of general sexual allegations which ultimately could not be linked to specific counts in the indictment. Pausing there, when one considers the nature of the testimony given, the link between the acknowledged generality of the evidence is inexorably to specific incidents of which the complainant was giving testimony.
27 It was further argued that to have been admissible, the acts had to be precisely defined as to time, place and character. In the written submissions there is a reference to a decision of this Court in Regina v Marsh [2000] NSWCCA 370 and particular reference to paragraph [18] of the judgment of Adams J. What his Honour there said as to the requirement of precise definition must however be viewed in the context of the facts with which the Court there was concerned, and they were extraordinary in the context of sexual assaults. The other acts by reason of their character not subject to charge, in Marsh, were acts of violence and assaults in the context of testimony that covered both consensual and non-consensual sexual activity. There, there was a clear difficulty in relating evidence of the other acts to the sexual acts complained of. Understood in that context, his Honour's remarks are perfectly correct but they are not necessarily apposite to the situation in the present appeal.
28 The arguments in support of these grounds then proceeded to assume that it was the Crown's intention, and it was in fact the effect of the evidence, to prove "tendency" or "propensity". When one considers the evidence there is no sensible basis on which a view of it as "tendency" evidence can be formed. Such as it was, in my view, the evidence clearly was admissible as relationship evidence and nothing more. The Crown did not seek to rely on it as tendency evidence, it could not have that effect and further particularity was not required.
29 The submissions led to an examination of the decisions of the High Court in Gipp v The Queen (1998) 194 CLR 106 and KRM v The Queen (2001) 75 ALJR 550.
30 The judgment of the High Court in Gipp was delivered on 16 June 1998 and as shortly thereafter as 10 August 1998 in Regina v RM Fraser (NSWCCA unreported 10 August 1998, Mason P, Wood CJ at CL and Sperling J) it was held that unless the High Court otherwise decides (the decision in Gipp lacking a clear ratio), the law in relation to the admission of (relationship) evidence should be taken to be as declared in Regina v Beserick (1993) 30 NSWLR 510 and Regina v AH (1997) 42 NSWLR 702. Both these decisions received the consideration of this Court (Spigelman CJ, Heydon JA and James J) in Regina v Dann [2000] NSWCCA 185 in which it is to be observed that Heydon JA not inappropriately remarked with reference to both Gipp and Fraser that "the authorities in relation to these issues bristle with problems" at [34].
31 It may be thought that some degree of clarification as to the position of the High Court at least with respect to "relationship" evidence was achieved in its decision in KRM. Leaving to one side the fact that within KRM their Honours, particularly Kirby J, seem to dispute whether or not Gipp and the respective judgments therein constitute clear authority, McHugh J having (from paragraph [20]) examined the authorities in relation to propensity evidence and in due course having come to the judgment of Gaudron J in Gipp, concluded in paragraph [31] as follows:
"By reason of the divided reasoning of the majority in Gipp , it cannot yet be said that evidence of uncharged acts of sexual conduct is no longer admissible to prove the relationship between the parties. Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, 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".
32 I do not understand that even there his Honour is saying that in every case in which "relationship" evidence of the present kind is inadmissible, or, if admitted, that a propensity warning is required. His Honour is merely pointing to the occasion that might arise where such a warning, in addition to a direction as to the use to be made of the "relationship" evidence would have to be given. Hayne J said (at [143]):
" I …agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning".
33 It seems to me that the only course this Court can take in this appeal, in relation to a state of law which is perhaps best described as "fluid", is to adopt the approach in Fraser that the law in Beserick and AH is still that which applies. It seems to me that nothing said in KRM detracts from that proposition. In fact the High Court has recognised (notwithstanding some internal dispute as to that fact) that until the uncertainty arising from the decision in Gipp is resolved, the status quo referred to by both McHugh and Hayne JJ is applicable in this State.
34 Thus far I am of the view that his Honour did not err in admitting the evidence, and that there is no error in its characterisation by the Crown as being nothing more than "relationship" evidence and not being tendered as tendency/propensity evidence.
35 In relation to ground 5, failing to direct the jury in respect of "relationship" evidence prior to, during or immediately after the giving of such evidence, it is the fact that his Honour recognised that he should do so .His Honour did not do so at the time of its admission. Viewed discretely I am not persuaded that there was any miscarriage by this oversight. The evidence as has been set out above was very briefly and simply given and in the end, subject to their correctness, the directions at the end of the trial would otherwise be sufficient.
36 From the extracts from the summing up set out above it is, as was submitted for the appellant, clear that the expression "guilty passion" was inappropriately used by his Honour. 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.
37 There is one other matter that must be dealt with in my view. It is contended that his Honour gave the jury no real assistance as to how they were to use the "relationship evidence". I disagree. He explained it in terms of its background nature and was repetitive in his direction to the jury that they do not use it as a substitute for finding each count in the indictment proved beyond reasonable doubt. A submission however was made for the appellant that a direction should have been given to the jury that it should have no regard to assertions of other sexual misconduct unless "satisfied beyond reasonable doubt" that the evidence proved the commission of these offences not charged. No New South Wales authority was cited in support of this proposition. Reference was made to two decisions of the Court of Criminal Appeal of South Australia: R v Peake (1996) 67 SASR 297 and R v R SCCRM-98-45, SCCRM-98-46 (17 June 1998). In the latter their Honours relied upon the decision in the former where, on reading it, it seems quite clear that such a direction would be required. Olsson J in Peake gave a lengthy, reasoned judgment making due reference to Pfennig v The Queen (1994) 182 CLR 461, Wilson v The Queen (1970) 123 CLR 334 and other decisions of the Supreme Court of South Australia in relation to propensity evidence and how the jury should be directed upon it. He nonetheless at [309.5] merely states that counsel was correct when he asserted before that court that it was essential that it be made clear to the jury that before it could rely on disputed evidence of prior conduct going to relationship it had first to be satisfied of its accuracy beyond reasonable doubt. If the decisions of the Supreme Court of South Australia can be understood as starkly asserting it to be the law that in a case where relationship evidence is given of the present kind (not tendency/propensity evidence), the jury, before it could make any use of it as "relationship" evidence and only for that purpose, it must be satisfied beyond reasonable doubt in respect of it, then I cannot accept that to be the law. An explanation is given to the jury as to why the evidence is there to set the "background" of the "relationship". The jury is warned in clear terms that that evidence cannot be used in substitution for its finding beyond reasonable doubt that the Crown has proved on the evidence brought in relation to each count guilt on each count. I cannot see how in a case such as the present, any such standard of proof direction usefully, and safely could be given.
38 Our attention was drawn to the statement of Gaudron J in Gipp in a context where the whole of the judgment in that appeal discloses that the trial judge said no more than that there was no need for the jury to be satisfied beyond reasonable doubt of the background facts provided they accepted the complainant's account that it occurred (see p 111, paragraph 8). Her Honour found in the circumstances of Gipp that the evidence in any event was inadmissible (page 113, paragraph 12). It having been admitted, however, her Honour said (at 115 paragraph 21):
"The bare direction to the jury that they had only to be satisfied with respect to that evidence on the balance of probabilities was erroneous and dangerously so. It left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving regular sexual abuse, that the appellant was guilty of the specific offences charged". (emphasis added)