REGINA v ELD

Court of Criminal Appeal (NSW)|2004-07-16|Before: Bell J, Howie J, Hislop J

CITATION : REGINA v ELD [2004] NSWCCA 219 HEARING DATE(S) : 2/6/04 JUDGMENT DATE : 16 July 2004

JUDGMENT OF : Bell J at 1; Howie J at 49; Hislop J at 50 DECISION : 1. Allow the appeal and set aside the Judge's ruling that the complainant may not give evidence of the presence of SW and SAH respectively on the occasions charged in the indictment; 2. Set aside that part of the Judge's ruling by which she rejected evidence of uncharged indecent assaults committed on the complainant as evidence of the relationship between the complainant and the respondent.

Crimes Act 1900 Crimes Legislation Further Amendment Act 2003 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 BRS v The Queen (1997) 191 CLR 275 Harriman v The Queen (1989) 167 CLR 590 R v AH (1997) 42 NSWLR 702 R v Basha (1989) 39 A Crim R 337 R v Dann [2000] NSWCCA 185 R v Edwards [1998] 2 VR 354 CASES CITED : R v GK [2001] NSWCCA 413; 53 NSWLR 317 R v JFP (unreported) Court of Criminal Appeal, 21 June 1996 R v L (unreported) Court of Criminal Appeal, 6 April 1992 R v Milakovic [2004] NSWCCA 199 R v NKS [204] NSWCCA 144 R v Quach [2002] NSWCCA 519 R v TAB [2002] NSWCCA 274 Rogers v the Queen (1994) 181 CLR 251 PARTIES : Regina (Appellant) ELD (Respondent) FILE NUMBER(S) : CCA 60126/04 COUNSEL : G Rowling (Crown) T Healey (Respondent) SOLICITORS : S Kavanagh SE O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0411 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60126/04

BELL J HOWIE J HISLOP J

Friday 16 July 2004 REGINA v E L D Judgment 1 BELL J: This is an appeal brought by the Director of Public Prosecutions (the Director) under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) (the CAA) against rulings made by English DCJ (the Judge) at the conclusion of a voir dire hearing by which she rejected evidence tendered by the Crown at the respondent's trial. 2 On 19 March 2004, the respondent was arraigned before the Judge in the District Court at East Maitland on an indictment that charged him with three counts of indecent assault in circumstances of aggravation contrary to s 61M of the Crimes Act 1900 (NSW) (aggravated indecent assault). Each offence was alleged to have been committed on the same complainant, CD. 3 It is the Crown case that between 1998 and 2001, CD, SW and SAH lived at Nelson Bay and were neighbours of the respondent. They were aged between 8 and 11 years. They used to visit the respondent at his home and accompany him on trips to the beach at Stockton and Bagnalls Beach. CD, SW, and SAH were also friendly with two other girls of their age, ED and CW. In February 2002 each of the girls made allegations that the respondent had indecently assaulted them. 4 The respondent was charged with the commission of sexual offences against ED, CW, SAH, CD and SW. On 24 March 2003 Herron ADCJ directed the separate trial of the charges relating to each of the complainants. 5 CD, SW and SAH each made allegations, in the course of video-recorded interviews with officers attached to the Newcastle Joint Investigation Response Team (JIRT), of having been indecently assaulted by the respondent at his home and on trips to the beach. 6 Count one charged the respondent with an aggravated indecent assault on CD at Nelson Bay between 11 August and 31 December 1998. CD was then aged 8 years. The offence is alleged to have taken place in a shed on the respondent's property. It is the Crown case that CD and her friend SW were making detergent "bombs" by mixing detergent and water. The respondent was outside washing his car. He came into the shed and he felt each of the girls on their breasts. CD told him to stop and when he did not she pushed him away. 7 Count two charged the respondent with an aggravated indecent assault on CD committed during 1998 at Anna Bay (which includes the beach at Stockton). The respondent drove CD, SW and two of his grandchildren to the beach at Stockton. He told the two grandchildren to go and collect pipis. He touched CD on the breast while she was seated on the front seat of the car between him and SW. She pushed him away and got out of the car and went to collect pipis. After this the group returned to Nelson Bay. CD and SW went to CD's home and played games on CD's computer; including a game in which an animated cat moved around the screen playing with a ball of yarn. This incident occurred when CD was aged 8 years. 8 Count three charged the respondent with an offence committed between 1 June and 31 July 2001 at Bagnalls Beach. CD was aged 10 years at the time. The respondent drove CD and SAH to Bagnalls Beach in his four-wheel drive vehicle. The two girls were seated in the back seat. On arrival they took turns at steering the car while seated on the respondent's lap. Afterwards, when both were again sitting in the back seat, he leaned across and touched each on the breast. He put his hand underneath CD's swimmers. She pushed him away, telling him to stop. She slapped him across the face. He tried to do the same thing to SAH. This offence occurred on a weekend close to SAH's birthday.

9 In her interview with the officers attached to the JIRT, SW gave an account of having been frequently indecently assaulted by the respondent in the shed on his property. These assaults occurred when SW and CD were playing a game in which the respondent pretended to be a doctor and one girl played being the patient while the other acted as the receptionist. The patient lay on a bunk bed and the doctor examined her. The receptionist waited in another part of the shed and was not able to see the patient during the examination. On the occasions when SW was the patient the respondent indecently assaulted her by touching her breasts and her vagina. In this respect SW described indecent assaults committed on her in the shed of a more serious character than the offence charged in count one. 10 SW said that on occasions the respondent had driven her and CD to the beach and that he had felt their breasts under their clothing. In this respect, again, she gave an account of indecent assaults of a more serious character than that charged in count two. 11 SAH said that the respondent had touched her on her breasts on occasions when he had driven her to the beach. She had regularly accompanied him to the beach with several of his grandchildren. In answer to Q. 537 she said that she had been in the car with CD "when ELD's been doing it to her as well". 12 Following the respondent's arraignment, but before the jury was empanelled, the Crown Prosecutor sought a ruling with respect to the admission of certain evidence. It was the Crown Prosecutor's submission that the evidence of CD, that the respondent had indecently assaulted SW on the occasion charged in count one and SAH on the occasion charged in count three, was admissible because it formed part of the res gestae. The Crown also sought to lead evidence from SW and SAH of occasions that were not the subject of charge when the respondent indecently assaulted CD and each of them. This was tendered on the basis that: "It's evidence of the true nature of the relationship between the accused and the complainant, that he would not only touch her but he would touch other children in her presence" (T 19/03/04 p 8.24 - 26).

13 In support of his application the Crown Prosecutor tendered the transcripts of the interviews conducted by the JIRT with CD, SW and SAH. Statements taken by the police from the mothers of SAH and CW were tendered on the respondent's behalf. These tended to establish that CD, SW and SAH had the opportunity to have concocted their accounts that the respondent had indecently assaulted them.

14 The respondent had been tried on an indictment charging him with offences against SAH. He was acquitted of two counts and convicted of a third. None of the instances that were the subject of the allegations led by the Crown at that trial were said to have involved an indecent assault on SAH on the occasion that is the subject of count three. 15 The respondent has been committed for trial in respect of the allegations made by SW. As at 19 March 2004 he had not been tried in respect of these allegations. He was not committed for trial in respect of an indecent assault on SW on the occasion charged in count one. 16 The Judge determined to reject the evidence in the exercise of the discretion conferred by s 137 of the Evidence Act 1995 (the Act). In her judgment, that was delivered ex tempore on 19 March 2004, she said this: "Whilst I am persuaded that the evidence to be adduced is capable of being classified as corroborative evidence, I am, of course, required to consider, in the exercise of my discretion, whether the prejudicial effect outweighs its probative value. That requires me, of course, to consider a number of matters, such as whether the evidence is likely to divert the jury from the critical issue at trial, and that is whether the Crown has proved the charges against the accused. Would it be likely to induce the jury to believe that, if he had indecently assaulted the witnesses, he was the sort of person who would be likely to have indecently assaulted the complainant, would it be likely that the evidence would create undue suspicion against the accused and undermine the presumption of innocence and could it result in bias or prejudice against the accused? A. The answer to at least one of those questions must be yes. In those circumstances, I find that the probative value is outweighed by the danger of unfair prejudice to the accused and I therefore rule that the evidence is inadmissible." 17 Following this ruling the Crown Prosecutor queried the scope of it, stating: "I had a separate application about whether or not your Honour would permit, as part of the res gestae , and I understand that's objected to, the fact that the complainant says the other child was indecently assaulted in her presence. I really think that's a separate matter to whether or not … HER HONOUR: That's a separate matter. CROWN PROSECUTOR: … to the corroboration question. HER HONOUR: Yes. CROWN PROSECUTOR: Your Honour hasn't told me, or hasn't ruled on that at this stage. HER HONOUR: You didn't ask me to Mr Crown. CROWN PROSECUTOR: Oh I'm sorry, I thought I had, I apologise your Honour. HER HONOUR: I certainly didn't understand that was part of your application. CROWN PROSECUTOR: I have no doubt it was my fault your Honour, I'm frequently guilty of not being clear. Well that's an understatement really. HER HONOUR: So what do you say are the issues your still considering Mr Crown? CROWN PROSECUTOR: Well as I understand each of the incidents, it's in circumstances where the complainant is saying that she was touched and then the other child was touched and, on a plain understanding of what she says, it gives the distinct impression anyway that it's momentarily separated. I mean separated by a very short time. In fact in relation to the on the beach/in the car incident, as I recall it she says she changed position with whoever it was she was with and they were then touched. HER HONOUR: And then what was the other issue? CROWN PROSECUTOR: The question is whether that should be admitted as part of the res gestae from the complainant. HER HONOUR: And was there another point? CROWN PROSECUTOR: No your Honour, I think that was all. HER HONOUR: That was the only one. Mr Healey? HEALEY: Your Honour's ruling, in my understanding, encompasses not just the issue of corroboration but the issue of the res gestae as well … HER HONOUR: Indeed. HEALEY: … Because it doesn't overcome the problem … HER HONOUR: No it doesn't. HEALEY: … of reversing the onus. HER HONOUR: No Mr Crown, that evidence is also inadmissible. CROWN PROSECUTOR: May it please your Honour. HEALEY: Your Honour, so far as the ERISP, or perhaps I use that word wrongly, that the interviews concerned, that should not contain elements of the matters that upon which your Honour has ruled are inadmissible. Again it casts an onus on the accused to deal with those matters. Or, in the alternative, it might even require a Jones v Dunkel direction. HER HONOUR: Yes, but it then becomes a bit of a farce. HEALEY: It would be better to take it out, deal with it simplistically. HER HONOUR: Yes, any reference, to make it perfectly clear, any reference to the involvement of any other child either being touched by the accused in the presence of the complainant, or vice versa, should be excluded Mr Crown. CROWN PROSECUTOR: The presence of the other child should be excluded? HER Honour: Yes." 18 Immediately following this exchange the Crown Prosecutor asked the Judge to adjourn the trial until Monday 22 March 2004. The Judge agreed to this course; observing that an assessment could be made on that occasion as to whether the trial could proceed. The Notice of Appeal is dated 22 March 2004. In light of the decision to bring this appeal the trial was adjourned. 19 Section 5F(3A) was introduced into the CCA by the Crimes Legislation Further Amendment Act 2003 and commenced on 14 February 2004. It provides: "The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case."

20 The decision or ruling appealed against is stated in the Notice of Appeal to be: "Ruling that evidence of SW and SAH was not admissible as supporting evidence and that CD should make no reference in her evidence to the presence of either SW or SAH during the commission of offences by ELD." 21 The ground of appeal set out in the Notice of Appeal is: "On the ground that his Honour [sic] erred in refusing to admit evidence of SW and SAH and limiting the evidence of CD to exclude reference to SW being present during the commission of offences in counts 1 and 2 of the indictment and to exclude reference to SAH being present during the commission of offence in count 3 of the indictment."

22 In her judgment the Judge referred to the Crown Prosecutor as having indicated that he had a "pre-trial application regarding the admissibility of evidence" (p 1.7). Section 130 of the Criminal Procedure Act 1986 confers jurisdiction on the court with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person arraigned upon it. The court may make any orders for the purposes of the trial prior to a jury being empanelled. The proceedings conducted prior to the jury being empanelled are part of the trial of the accused person: s 130(3). 23 The rulings made by the Judge were as to the admissibility of evidence at the trial before her. After announcing them she remanded the respondent for trial on a future date. When the respondent's trial comes on for hearing it may proceed before another judge. The ruling made by the Judge as to the admission of evidence has not become final as between the Crown and the respondent by the entry of a conviction or an acquittal: Rogers v The Queen (1994) 181 CLR 251; R v GK [2001] NSWCCA 413; 53 NSWLR 317; R v Edwards [1998] 2 VR 354. The judge presiding at the respondent's trial is not bound to adopt evidentiary rulings made at an earlier aborted trial: R v GK per Mason P at [4] and [5] and Sully J at [74]. It is to be noted that Sully J observed that a ruling excluding evidence under s 137 of the Act made at one trial should be followed at a subsequent trial if the earlier trial had resulted in a verdict that had not been set aside on appeal and if there was no proper basis for distinguishing it: at [77].

24 The operation of s 5F(3A) was considered by this Court in R v Milakovic [2004] NSWCCA 199. A question arose in that case as to whether a ruling refusing leave to question a Crown witness under s 38 of the Act was a ruling on the admissibility of evidence. It was held that it was not.

25 In Milakovic the trial judge discharged the jury after being informed that the Director proposed appealing against his ruling. Grove J said at [10]: "A second obstacle to the Crown contention is the requirement that it be demonstrated that the decision or ruling (assuming it is in a given situation on the admissibility of evidence) eliminates or substantially weakens the Crown case. There is no case being currently tried either at the stage of preliminary or full hearing. It is not known whether Mr Bajic will or will not adopt the same stance in the forthcoming trial, if he is called. It is not known what the circumstances will be in which the presiding judge at that trial may be asked to make a ruling if an application under s 38 of the Evidence Act is made. If these events occur, they will be dealt with by the presiding judge in accordance with whatever circumstances have arisen. The jurisdiction of this Court does not extend to an advisory opinion concerning something which may happen at a future trial. That does not undermine the jurisdiction which may be exercised where a trial is in progress for the purpose of pre-trial rulings specific to lis pendens ."

26 In R v NKS [2004] NSWCCA 144 it was contemplated that a pre-trial determination of the admissibility of evidence might be the subject of an appeal under s 5F(3A) (paragraph [18]). The trial in NKS was on foot at the time the appeal was determined.

27 In NKS and Milakovic this Court observed that the right of appeal under s 5F(3A) is one that is to be exercised with restraint. The right of appeal allows recourse to this Court to test the correctness of an evidentiary ruling that substantially weakens the Crown case before verdict. The fact that the Director elects to exercise the right to bring an appeal under s 5F(3A) should not ordinarily be an occasion to abort the trial. It appears that it was the Parliament's intention in enacting s 5F(3A) that appeals under the provision be determined during the currency of the trial. In Milakovic a passage from the second reading speech introducing the amendment into the CAA is set out at paragraph [12]: "If an acquittal results from an erroneous evidentiary ruling the Crown has no avenue of appeal against the acquittal. The Crown should therefore be able to test the correctness of such a ruling made during the trial, so that an accused may not derive the benefit of an acquittal secured as the result of an erroneous evidentiary ruling. It is not desirable that criminal trials be unnecessarily disrupted for the purpose of appealing evidentiary rulings. It is therefore anticipated the Crown would exercise this new appeal power sparingly." (Hansard, 20 November 2003 pp 5427 - 5428) 28 Section 5F(5) provides that this Court may vacate a decision or ruling upon a successful appeal under subs (3A) and give or make some other decision or ruling instead of the one appealed against. Where the trial has been aborted and the accused remanded for trial on some future date new evidence may come to light that is relevant to the exercise of the discretion to refuse to admit the evidence that was the subject of appeal. It is undesirable for this Court to make rulings on the admission of evidence in advance of the trial. 29 No point was taken at the hearing either challenging the competence of the appeal or contending that the Judge's rulings did not operate to substantially weaken the Crown case. It is appropriate to deal with the appeal in the way it was argued. 30 At the trial the Crown Prosecutor sought to lead evidence of indecent assaults committed by the respondent on SW and SAH on the occasions that each described in her interview and on the occasions of the assaults on CD that are the subject of counts one and three. On the hearing of the appeal the Crown did not press this part of its challenge to the Judge's ruling. The Crown Prosecutor stated that the Crown would not seek to lead evidence of indecent assaults on either SW or SAH. This was an appropriate concession. Both SW and SAH described indecent assaults of a more aggravated character than the indecent assaults that are the subject of the charges. Each said that the respondent had touched her on the vagina. As noted, the evidence was tendered as evidence of the true nature of the relationship between the respondent and CD; that he would not only touch her but that he would touch other children in her presence. This does not impress me as evidence of the relationship between CD and the respondent but if it can be characterised in that way the probative value of it may readily be thought to be outweighed by the danger that its admission would occasion unfair prejudice to the respondent. I would not hold that the Judge erred in rejecting this evidence. 31 The Crown Prosecutor's concession on the hearing of the appeal (that it was not proposed to lead evidence of the indecent assaults upon SW and SAH) extended, as I understood it, to the evidence of CD that the respondent indecently assaulted SW and SAH on the occasions charged in counts one and three. (CD's interview, Exhibit AA, does not contain an assertion that the respondent indecently assaulted SW on the occasion charged in count two). Assuming for present purposes that the fact that the respondent indecently assaulted SW on the occasion charged in count one and that he indecently assaulted SAH on the occasion charged in count three could rationally affect the assessment of the probability of him having indecently assaulted CD on each of these occasions (other than by proving that he had a tendency to indecently assault young girls - a purpose disavowed by the Crown at the trial) the considerations favouring exclusion under s 137 would seem to have been strong. I would not find that the Judge erred in rejecting CD's evidence of the indecent assaults upon SW and SAH on the occasions charged in the indictment.

32 In my view the Judge was in error in excluding the evidence of CD that SW was present on the occasions charged in counts one and two and that SAH was present on the occasion charged in count three. It is CD's evidence that on these occasions there was a witness to the assaults on her. It is relevant to prove that fact. No question of unfair prejudice to the accused arises. In my view there was no basis for excluding CD's evidence in these respects. Mr Healey, who appeared on the respondent's behalf, did not contend otherwise on the hearing of the appeal. 33 There was no evidence as to what SW would say about the occasions charged in counts one and two nor of what SAH would say about the occasion charged in count three. The video-recorded interviews with SW and SAH were not conducted with a view to obtaining a proof of evidence for use at the trial of the allegations made by CD. The investigators in each case were obtaining the girl's account of the commission of offences by the respondent upon her. 34 It would seem that no one has asked SW if she has any recall of the incident described by CD charged in count one. She described frequent indecent assaults committed by the respondent on her in the shed but these took place in a different context. 35 CD gives some detail with respect to the events that form the basis of counts two and three. No one has directed SW's or SAH's attention to the specific incidents described by CD that are charged in these counts. SW gave an account of occasions when the respondent had driven her and CD to the beach at Stockton and that he had indecently touched CD. SAH referred in a general way to having seen the respondent doing things to CD on occasions when they were in his car. 36 The Crown would be expected to call SW and SAH at the trial. The respondent is entitled to know the evidence that each would give about the events that are the subject of the charges. 37 It will be necessary for the Crown to obtain a proof of evidence from each girl. Bearing in mind the nature of the allegations and the ages of the girls it may be appropriate to obtain this evidence by the conduct of a further video-recorded interview or at a hearing in the absence of the jury: R v Basha (1989) 39 A Crim R 337. 38 The Crown submitted that the Judge erred in rejecting the evidence of SW and SAH of occasions when each had seen the respondent indecently assaulting CD. It was said to be admissible as evidence of the relationship between the respondent and CD: R v L (unreported) Court of Criminal Appeal, 6 April 1992 per Allen J at 5-6 and Harriman v The Queen (1989) 167 CLR 590 per McHugh J at 630-31. 39 The evidence was not tendered as evidence of tendency or coincidence pursuant to ss 97 and 98 of the Act and accordingly the test posed by s 101(2) of the Act did not apply: R v Quach [2002] NSWCCA 519 per Spigelman CJ at [22]-[45], Sully J at [62]-[73]. 40 On the hearing before the Judge and on the hearing of the appeal the Crown placed weight on the observations of Allen J in R v L. In that case the complainant's two cousins gave evidence of occasions when they had witnessed the appellant behaving in an indecent fashion towards the complainant. The incidents described by the cousins were not charged in the indictment. Allen J (in a judgment with which Hunt CJ at CL and Badgery-Parker J agreed) said at p 5: "I accept, despite contrary argument for the appellant, that the evidence of each of the cousins was admissible because, if believed, it demonstrated a manifested sexual passion of the appellant in relation to Joanne. It made more credible her evidence that he manifested that passion by committing also the particular offences against her with which he was charged. The evidence had probative force in respect of those offences notwithstanding that it related to other incidents ( Wickham , CCA, (unreported) 17 December 1991; Zappala , CCA, (unreported) 4 November 1991; Gee , CCA, (unreported) 25 March 1991; Chamilos , CCA, (unreported) 24 October 1985; Witham , (1962) QR 49; Harriman v The Queen (1989) 167 CLR 590; S v The Queen (1989) 168 CLR 266). Commonly evidence of manifested passion comes from the person who is the object of it but it cannot make any difference to the admissibility of the evidence that it comes from someone else who was present when the manifestation occurred. What matters to relevance is the existence of the passion, not the identity of the witness to it. ( Dawson , Court of Criminal Appeal, (unreported) 13 September 1988; McKeon (1986) 31 ACR 357; Marsh (1949) Cr. App. R 185; K v Federal Court of Australia (unreported) 18 February 1992; McLeay , Court of Criminal Appeal, (unreported) 7 June 1991). Such evidence is admitted because its high probative value outweighs its prejudicial effect." 41 This passage from the judgment in R v L was cited with approval in R v JFP (unreported) Court of Criminal Appeal, 21 June 1996 by Studdert J (in a judgment with which Gleeson CJ and Dunford J agreed). In that case the appellant was tried on an indictment charging him in 12 counts with sexual offences committed upon three brothers. At p 5 Studdert J observed: "The Crown led evidence of alleged sexual activity between the appellant and each of the children apart from that which was the subject of specific counts in the indictment. The appellant submits that the learned judge was in error in permitting the introduction of this evidence, at least without satisfying himself that there was no 'real chance' of conspiracy between the children in making these allegations. It was submitted that such inquiry was required of the judge consistently with the application of the principles to be found in Hoch v The Queen ((1988) 165 CLR 292). It is, of course, well settled that evidence of sexual activity other than that charged in the indictment but occurring between an accused person and a complainant is admissible to show a guilty passion on the part of the accused and to rebut any suggestion or inference of innocent association; see R v Ball ([1911] AC 47); R v Shellaker ([1914] 1 KB 414); R v Chamilos (unreported) Court of Criminal Appeal, 24 October 1985) and B v The Queen (175 CLR 599). The various sexual episodes between the appellant and G other than those the subject of specific charges but of which evidence was led were relevant to the case the appellant had to meet concerning the charges involving G; likewise evidence of the sexual activity between the appellant and S other than the subject of the specific charges was relevant to the case against the appellant concerning S. Ordinarily the Crown would be entitled to lead evidence of such relevant activity, not only from the complainant involved but also from others who may have observed such activity: R v L ((unreported), Court of Criminal Appeal, 6 April 1992). 42 Decisions dealing with the admission of evidence of uncharged sexual offences at common law do not always distinguish between evidence tendered to place the relationship in its true context and evidence tendered to establish that the relationship was one characterised by sexual desire on the part of the accused for the complainant. Under the Act it is necessary to do so. Evidence of the accused's sexual desire for the complainant is tendency evidence and its admission is subject to the requirements of s 101(2): R v AH (1997) 42 NSWLR 702. The probative value of tendency evidence must substantially outweigh any prejudicial effect that it may have on the accused. 43 Evidence of the relationship between the accused and the complainant led to place the evidence of the complainant in its true context is not evidence of tendency and the requirements of s 101(2) of the Act are accordingly irrelevant. Such evidence is still subject to exclusion should its probative value be outweighed by the danger of unfair prejudice to the accused: s 137 of the Act. In this respect the observations of Heydon JA (as he then was) in R v Dann [2000] NSWCCA 185 at paragraph [37] as to the difficulty of grasping the distinction between evidence of relationship and evidence of tendency are to be borne in mind.

44 It is only when it is known what SW and SAH have to say concerning the offences charged in the indictment that the trial judge may make a meaningful evaluation of the probative value of the evidence of the uncharged indecent assaults on CD as against the danger of unfair prejudice to the respondent. CD describes three incidents in which the respondent indecently assaulted her in the presence of either SW or SAH. On each occasion she says that she rebuffed the assaults. The allegations that CD makes may not necessarily require evidence of the history of earlier indecent assaults on her in order to put them in their true context. In this sense this case is to be distinguished from a case such as Wickham in which the complainant's evidence of the circumstances of the commission of the offence would have seemed extraordinary were it not known that she was accustomed to her father having sexual intercourse with her regularly. 45 It is not known whether SW or SAH recalls the particular incidents the subject of counts two and three. CD's account of the two incidents does not include a great deal in the way of detail to distinguish these events from other occasions on which she asserts that she was indecently assaulted by the respondent in his four-wheel drive vehicle in the presence of either SW or SAH. There is no reason to consider that SW and SAH would recall the particular incidents that are the subject of counts two and three. The Crown would be obliged to call each nonetheless because CD says that each was present on the occasion of one of the assaults charged. The circumstance that either SW or SAH or both did not remember the incident the subject of the charge might assume an unwarranted significance if it were not known that CD, SW and SAH say that CD was from time to time indecently assaulted by the respondent in his vehicle. (Count one raises somewhat different considerations. SW says that indecent assaults on her in the shed were common and she infers that they were also commonly committed on CD. However, she did not see any assault on CD.)

46 I propose that those parts of the rulings made by the Judge that excluded the complainant's evidence of the presence of SW and SAH on the occasions the subject of the counts in the indictment be vacated. I also propose that the Judge's ruling rejecting the evidence of uncharged indecent assaults committed by the respondent on CD be vacated. For the reasons earlier given I am not of the opinion that this is an appropriate case in which to make rulings instead of those that are the subject of the appeal.

47 It will be necessary for the trial judge to determine whether to admit evidence of uncharged indecent assaults on CD as evidence of the relationship between CD and the respondent. If evidence of this description is admitted it will be necessary for the trial judge to give the jury directions that serve to make clear the limited basis upon which it is received: BRS v The Queen (1997) 191 CLR 275 at 305-6; R v AH; R v Dann; and R v TAB [2002] NSWCCA 274.

48 For these reasons the orders that I propose are as follows: 1. Allow the appeal and set aside the Judge's ruling that the complainant may not give evidence of the presence of SW and SAH respectively on the occasions charged in the indictment, 2. Set aside that part of the Judge's ruling by which she rejected evidence of uncharged indecent assaults committed on the complainant as evidence of the relationship between the complainant and the respondent. 49 HOWIE J: I agree with Bell J. 50 HISLOP J: I agree with Bell J. **********

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