REGINA v MARSH

COUNSEL : L Flannery (Appellant) D C Frearson (Crown) SOLICITORS : Taylor & Scott (Appellant) S E O'Connor (Crown) CATCHWORDS : EVIDENCE - criminal trial - physical and sexual assault - "relationship evidence" - evidence should not have been admitted - EVIDENCE - criminal trial - physical and sexual assault - exclusion of evidence - Evidence Act 1995, s108(3)(b) - CRIMINAL LAW - trial - role of counsel LEGISLATION CITED : Criminal Appeal Rules Evidence Act 1995 B v The Queen (1992) 175 CLR 599 BRS v The Queen (1997) 191 CLR 275 Gipp v The Queen (1998) 194 CLR 106 R v Abusafiah (1991) 24 NSWLR 531 R v Beserick (1993) 30 NSWLR 510 CASES CITED: R v Clarke (1995) 78 A Crim R 226 R v Fordham (1997) 98 A Crim R 359 R v Harvey (Supreme Court of NSW, Court of Criminal Appeal, 11 December 1996, unreported) R v Meier (Supreme Court of NSW, Court of Criminal Appeal, 21 May 1996, unreported) R v MM [2000] NSWCCA 78 R v Tripodina (1988) 35 A Crim R 183 DECISION : Leave to appeal granted; appeal allowed; convictions quashed; new trial ordered.

SPIGELMAN CJ NEWMAN J ADAMS J

Friday 15 September 2000 REGINA v Russell Alexander MARSH Facts The Appellant was convicted of 6 out of 8 counts which alleged sexual and physical abuse of a woman with whom he was having a relationship. The Appellant raised 9 grounds of appeal against the convictions. Among these were that the trial judge, Holt DCJ, erred in admitting evidence of assaults (both physical and sexual) that were not the subject of a count on the indictment, that his Honour did not give adequate directions concerning the use the jury could make of that evidence, that his Honour erred in admitting other evidence including two exhibits, R and S and that the trial miscarried by reason of the failure of trial counsel to object to evidence said to be inadmissible and by the failure of trial counsel to seek a discharge of the jury when that evidence was given.

Held (per Adams J, Spigelman CJ and Newman J agreeing) 1 Each count on the indictment occurred in its own factual setting which provided an adequate context in which to evaluate and understand the allegation charged. His Honour erred in admitting, as "context" evidence, evidence of assaults that were not the subject of any count on the indictment. The evidence was highly prejudicial and not probative of the allegations in any of the counts. R v Beserick (1993) 30 NSWLR 510, R v Fordham (1997) 98 A Crim R 359 discussed.

2 His Honour erred in not directing the jury that it could not use the "context" evidence as tendency or propensity. B v The Queen (1992) 175 CLR 599, BRS v The Queen (1997) 191 CLR 275 and Gipp v The Queen (1998) 194 CLR 106 discussed.

3 His Honour erred in admitting into evidence exhibits R and S.

4 His Honour erred in admitting other material, particularly evidence of the complainant, into evidence despite defence counsel's failure to object to some of that evidence. Discussion of the duty of prosecuting counsel to control his or her witnesses and to ensure that only admissible evidence is placed before the jury. Orders Leave to appeal granted; appeal allowed; convictions quashed and a new trial ordered.

SPIGELMAN CJ NEWMAN J ADAMS J

Friday 15 September 2000 REGINA v Russell Alexander MARSH JUDGMENT 1 SPIGELMAN CJ: I agree with Adams J. 2 NEWMAN J: I agree with the orders proposed by Adams J. 3 ADAMS J: On 17 September 1998, the appellant was convicted of a number of offences of violence, both sexual and non-sexual with one Fiona Field, following a trial lasting about five weeks. The counts in the indictment were as follows - " Count 1 That he between 31 August 1994 and 1 October 1994, at Merrylands, in the State of New South Wales, did have sexual intercourse with Fiona Field without the consent of the said Fiona Field knowing she was not consenting.

Count 2 Further that he on or about 2 July 1995, at Merrylands in the State of New South Wales, did assault Fiona Field. Count 3 Further that he on or about 4 December 1995, at Merrylands, in the State of New South Wales, did have sexual intercourse with Fiona Field without the consent of the said Fiona Field, knowing she was not consenting. Count 4 Further that he on 4 December 1995, at Merrylands, in the State of New South Wales, did have sexual intercourse with Fiona Field without the consent of the said Fiona Field, knowing she was not consenting. Count 5 Further that he on 4 December 1995, at Merrylands in the State of New South Wales, did assault Fiona Field. Count 6 Further that he between 31 January 1996 and 1 March 1996, at Belmont in the State of New South Wales did assault Fiona Field thereby occasioning to her actual bodily harm. Count 7 Further that he between 31 January 1996 land 1 March 1996 at Belmont, in the State of New South Wales did have sexual intercourse with Fiona Field without the consent of the said Fiona Field knowing she was not consenting. Count 8 Further that he between 31 January 1996 and 1 March 1996 at Belmont, in the State of New South Wales did have sexual intercourse with Fiona Field without the consent of the said Fiona Field, knowing she was not consenting." 4 The jury were unable to agree in respect of count 3 and acquitted the appellant in respect of count 6. Before coming to the grounds of appeal, it is useful to set out in summary the evidence at the trial, since the grounds require consideration of that evidence to a greater or lesser degree. I have set out much more than is conventional since, in a number of significant respects, no summary can adequately reflect the actual course of the trial, in which the prosecution case was largely hijacked by the chief Crown witness, the complainant. 5 The evidence of the complainant commenced with an account of her first meeting with the appellant when she was about sixteen years old in 1990 and had undertaken work experience at Flemington Police Station where the appellant was then stationed. She saw him several times during that week. The following year, she contacted Flemington Police Station because she was having problems with somebody, as she put it, and the appellant answered the telephone and in due course, it seems, both went to court in connection with the matter. The complainant did not meet the appellant again until shortly after June 1994 when he telephoned her and asked if the two of them could meet. She said that he told her that he had liked her ever since she was sixteen when she did her work experience and that he would drive around the school looking for her. Shortly after, they met in the city for coffee. She said that the appellant was behaving oddly and was touching and trying to cuddle her and she left. The appellant then started telephoning her, sending her cards in the mail and once sending a big teddy bear and flowers. The complainant said that he would come to the house where she was living whilst he was on duty and that, on a couple of occasions, she visited his premises. She said that, on one of these occasions, she went over because she felt sorry for him when he told her that he was going to hurt himself because of his unhappy relationship with his ex-girlfriend and his hatred for the police he worked with. She said that she kept telling the appellant that she only wanted to be a friend, that he was a lot older than she was and that she had no feelings of attraction for him. However, he was persistent.

About late September 1994, the appellant moved to within walking distance from the complainant's residence and telephoned her to invite her to inspect his premises. For some time, according to the complainant, the appellant had said to her that he loved her, wanted to get her pregnant and wanted her to have his baby. On the occasion when she first visited him in his new unit, he repeated these statements. She said that she told him that she was sick of this sort of talk and wanted just to be friends, that she did not care for him. The complainant alleged that the appellant then pushed her onto the bed and pulled her shorts down, tearing them. She told him that she did not want to fall pregnant, that she was near the middle of her cycle, and that she did not want to have sex with him. She tried ineffectively to push him off her but he succeeded in effecting sexual intercourse. The complainant said the appellant was laughing and it was all a big joke to him. She said that she was very angry and upset. The appellant told her that this was the first time he had had sex in four years and either on this occasion or shortly after said that he was sorry when she asked him if he realised that he had raped her. The appellant said to her that she could go the police if she wanted to but he would go to gaol and asked if that is what she wanted. She said that at that stage she did not want him to go to gaol "but you know, and I just felt sorry for him and I just shut up about it and thought we'd just stay friends". The complainant said that she felt that probably nobody would believe her anyway, because "back then I had a lot of problems". 6 When the complainant went home after the assault, she told her flatmate, Janys Young, what happened. Ms Young was called to give evidence in the trial. She said that the complainant had gone to the appellant's house, in effect, one evening but had not come back until the following morning at about 6.30 or 7 o'clock when Ms Young was getting ready for work. Ms Young said that the complainant "sort of stumbled to the door looking extremely distressed and very disoriented...she looked like she could hardly walk...she was very pale, a little bit incoherent, I really couldn't get much out of her at all". She said that the complainant could not say much more, but told her "last night Russell assaulted me, I can't believe he would do it". Ms Young said that the complainant was still wearing shorts from the night before and pointed to a rip which she saw was along the front zipper. Over the next few days, Ms Young tried to encourage the complainant to tell her what had happened. 7 The account which emerged was that the complainant was exhausted and did not think she could manage to walk home. She had been trying to rest and had fallen asleep, or was close to falling asleep and that, whilst she was lying (semble, on the bed) she "sort of came to and Russell was on top of me trying to sort of force me into having sex with him". She said that she told him not to, to just go away and kept struggling but that the appellant "kept getting rough with me, in fact he was even trying to get my shorts off and he got so frustrated he started ripping them". This account, of course, differs significantly from that which the complainant had given in her evidence. The complainant said that the appellant had thrown her onto the bed following statements about loving her, wanting to get her pregnant and wanting her to have his child, and that the complainant had said that she did not wish to have a child, that she had problems of her own and would have a child only with someone whom she cared for and she did not care for him. She said that he had pushed her onto the bed, whereas she told Ms Young that she had been lying down and woke up to find him top of her. Ms Young said that she asked the complainant, "Did he rape you?" and that the complainant replied, "He assaulted me", and that the complainant did not like to use the word "rape" at first until Ms Field questioned her further, asking, "Did he sexually assault you, do you think it was rape?" to which the complainant replied, "How could a friend rape someone they love?" Ms Young then asked, "Did he force himself on you, would you consider that to be rape?" and said that "In the end she said, 'Yes, it is rape but I don't know what to say' and then just burst into tears". She said, "I am just so stunned, I can't believe he would do this to me". She went on to say to Ms Young, "What will I do if I am pregnant? I don't want a child and I definitely don't want a child to Russell". 8 The appellant's account was, essentially, that the complainant came to the flat that evening, they were talking and at about 10 o'clock, he asked her if she wanted to stay the night and she said that she did and then consensual sexual intercourse took place on the bed in the bedroom. About twenty minutes later she said to him, "We shouldn't have done that" and then got out of bed, got dressed and left. He denied saying that he wanted to get the complainant pregnant, that he wanted her to have his baby and that he loved her. 9 It was the sexual intercourse which occurred on this occasion which gave rise to the first count in the indictment. 10 His Honour undertook in his directions to the jury a somewhat curious course relating to the evidence of Janys Young. After briefly setting out the counts in the indictment and the occasions to which they referred, giving directions as to the onus and standard of proof and the elements of the offences, pointing out that the accused did not need to give evidence and that by doing so the onus of proof was not thereby changed, his Honour gave what he described as "the first set of directions [that] relate to the reliability of evidence" and then referred to a number of inconsistent statements made by several of the witnesses. He then said - "The following evidence of Janys Young that Fiona Field told her that the accused had 'sexually assaulted me, I'm really scared, I could be pregnant', may be unreliable, and I warn you of the need for caution in determining whether to accept the evidence and the weight to be given to it, because the complainant's evidence followed Ms Young asking her, 'did he rape you?' which, of course, was as you have heard elsewhere in this trial, a leading question." 11 This direction, with respect, was somewhat confused. It suggested that the evidence of Ms Young might be unreliable, whereas the real point was that the allegation of rape made by the complainant might be unreliable because it had been elicited after leading questions. Indeed, as I have pointed out, the evidence of Ms Young was substantially not that it took only one leading question to elicit the allegation of rape but that the complainant was reluctant to make the allegation at all. The significance of this evidence was that the jury needed to evaluate whether the complainant's allegations that she was raped were true in light of her reluctance to make the allegation to her flatmate. The point about evidence of this kind, of course, is that if the complaint is consistent with the evidence of the complainant, then the Crown is permitted to point to that fact as supportive of her credit. On the other hand, if there is a significant inconsistency, the jury must consider whether it regards the sworn testimony as reliable. In this respect, the learned trial Judge pointed out the first of these uses of the evidence when reading out the evidence of Ms Young which I have set out in summary above. His Honour did not at any stage explain to the jury the second use to which the evidence of Ms Young could be put. 12 The evidence of the complainant was that in the weeks following this act of intercourse, she discovered that she was pregnant and was unhappy as a result. Some months later, on Christmas Day, she told her father that she was pregnant by the appellant but that he "forced me and I fell pregnant". 13 The complainant told the jury that, as she was having the appellant's child, she thought that they "might as well try and work things out", adding, "he sort of gave me the impression that no one else would want me anyway so...I pretty much just stayed with him". The prosecutor asked the complainant what she meant by this evidence. The complainant, in effect, said that she stayed with him, despite his violence towards her including attempts to suffocate her by putting a pillow on her head, because she thought he would "change and maybe he'd be decent". 14 This evidence was objected to as not relevant to the counts in the indictment but no ruling is apparent on the transcript. Nevertheless, the learned trial judge permitted the evidence to be given since the Crown prosecutor went on to seek details of the appellant's behaviour. In brief, she said that at times the appellant would be nice but that at times he would be violent, bashing her head against the cupboard in his room, putting pillows on her head, strangling her, punching her in the stomach, even when she was pregnant, causing her to fall on the floor. This evidence, of course, was highly prejudicial. After it had been given, and carefully noted down by the trial judge, his Honour asked the prosecutor whether any of the matters related to any of the counts. The Crown prosecutor informed his Honour that they did not. The prosecutor submitted that the evidence was led to put the whole of the relationship of the complainant and the appellant before the jury to provide a context for the individual counts in the indictment. 15 In effect, the learned trial judge intimated that he would permit the evidence although there would be some limit because its prejudice could exceed its probative value. Defence counsel said that he "might leave it in the hands of the Crown at this stage" in the hope that, as the Crown had indicated, "it's about to come to an end". Regrettably, this was not only not the end, it was the beginning. His Honour invited defence counsel to raise a further objection at a later stage if he thought it necessary. I will deal at a later stage with defence counsel's explanation in this court for the passive role he appears to have adopted. 16 It is not easy to discern what was meant by "context" in this submission. The counts in the indictment each occurred in its own factual setting which (as is shown below) provided an adequate context in which to evaluate and understand the allegation charged. The learned trial judge referred to, and apparently relied on, the judgment of Hunt CJ at CL in R v Beserick (1993) 30 NSWLR 510 at 515, where his Honour, referring to evidence of sexual activity other than that charged, considered that it may be relevant as evidencing a "guilty passion" or "sexual relationship", or as necessary "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". However, in the next paragraph of the Chief Judge at Common Law's judgment, his Honour said (references omitted) - "Evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge is nevertheless frequently of a highly prejudicial nature, in that it tends to show a propensity on the part of the accused to commit crimes of the nature charged or crimes of a similar nature. Its admissibility has therefore always been subject to the well known discretion in criminal trials to exclude evidence where its probative value is outweighed by its prejudicial effect ...If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged."

His Honour went on to say (30 NSWLR at 522) - "So far as concerns the...the discretion to reject the evidence upon the basis that its probative weight is outweighed by its prejudicial effect..., the stage will inevitably be reached where the evidence of other sexual activity between the complainant and the accused will no longer reasonably be required either to establish the guilty passion (or the sexual desire or feelings) of the accused for the complainant or to place the evidence of the offence charged into a true and realistic context, and it does little or no more than emphasise that the accused has a propensity for committing crimes of the nature charged or crimes of a similar nature. When that stage has been reached, trial judges should be firm in excluding the evidence tendered."

I set out the directions of the trial judge concerning this "context" evidence at a later stage. It is sufficient to point out here that there was no warning given by his Honour when the evidence was admitted, either at this stage or at any other stage during the trial, and the directions did not tell the jury that it must not use the evidence as "tendency" or "propensity". 17 In B v The Queen (1992) 175 CLR 599, Dawson and Gaudron JJ said at 619 - "Where, in a criminal case, [the trial judge] admits evidence admissible for one purpose but inadmissible for another - as he is ordinarily bound to do - he should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, particularly where the use of the evidence for that purpose would be adverse to the accused."

Reference might also be made to BRS v The Queen (1997) 191 CLR 275 at 295, 301 (where Gaudron J, citing the above passage from B , added, "Certainly, a direction of that kind must be given to avoid a perceptible risk of injustice"), 305, 321; Gipp v The Queen (1998) 194 CLR 106 at 155-6, 164. At 194 CLR 168, Callinan J said that he "would not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide 'part of the essential background' against which the other evidence is to be evaluated". See also R v MM [2000] NSWCCA 78, esp per Powell JA at [46]-[49]. 18 Where it is proposed to lead evidence of other offences as "context" it is essential that those offences be as precisely defined as possible as to time, place and character. The complainant should not be simply invited to make general allegations. The Crown prosecutor and, for that matter, the trial judge have a responsibility to ensure that all such evidence is elicited in such a way as will permit its true significance to be appropriately weighed in relation to the offences actually charged. The approach of the Crown prosecutor in this case was calculated to obscure, rather than clarify, the matters which were supposed to comprise context. Without precision and an appropriate measure of control, the task of assessing relevance and probative worth, which must be considered in relation to each substantial allegation of uncharged crimes, is impossible. It creates serious problems for the defence, both in making proper submissions on admissibility and responding with any evidence which might be available. It may be that more than the mere denial of the accused, which often sounds rather lame and inadequate, can be presented and, in fairness, ought to be adduced. This creates the real risk that the trial will be deflected from a consideration of the charges in the indictment to a substantial litigation about secondary issues. With respect, it seems to me that, rather than actually conducting this crucial assessment, the learned trial judge simply accepted the Crown prosecutor's blandishments about admissibility. I say this because the material upon which the submission was based was completely lacking in the precision necessary to enable adequate evaluation of its true significance and the consequences for the conduct of the trial of its admission. 19 I leave aside any suggestion that the prosecution selected the allegations charged on the basis that they were "representative" incidents. This was never at any stage the approach of the prosecutor either at trial or in this Court. Again, the scope of the proposed evidence would have needed a great deal more clarity. At all events, I doubt that such an approach would be appropriate where the essence of the charges is non consensual sexual intercourse between adults, especially where consensual acts had also occurred. 20 The evidence adduced was not that of other sexual activity but of assaults, although it shortly after expanded to include other sexual activity. These assaults were not relied on in the Crown case - or, indeed, at any stage - to explain why the complainant "stayed with" the appellant after the initial sexual assault. The complainant said that she stayed despite them because she hoped for the appellant's reformation. Not only was it highly prejudicial, but, in my opinion, it was not probative of the allegations in any of the counts in the indictment. There was no balance to be struck by the trial judge. The evidence was simply irrelevant. As the complainant herself conceded, there were a large number of consensual (though, she alleged, reluctant) acts of sexual intercourse between her and the appellant as well as, she alleged, a large number of assaults. This evidence might have described a social phenomenon but it made it virtually impossible, as it turned out, to focus the evidence on the charges alleged in the indictment, which occurred, essentially, only on four different occasions. This was not a case like that considered in R v Fordham (1997) 98 A Crim R 359, where the Crown case was that the fact that there had been no protest made by the complainant on the occasions when she was allegedly sexually assaulted by the accused was explained by the history of violence inflicted on her by him and that this also demonstrated that the accused knew that the complainant had not consented to the acts in question. The history of violence in that case that characterised the relationship between the complainant and the accused was therefore directly relevant to the issues in the trial. 21 Most of the "context" evidence (and I refer to more such material below) was duly read out to the jury in his Honour's summary of the Crown case. The only assistance that the jury received concerning it was at the commencement of the summing up - "I turn now to what was described by, at least the Crown I think, as relationship evidence, concerning events that were not the subject of the charges. Of course, the Crown must identify specific acts and occasions for each count in the indictment 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 history of the relationship between the complainant and the accused, if you find it proven.

There is evidence that other acts occurred during the course of their relationship and other evidence that filled in gaps between the various counts during the period of their relationship. You do not substitute these other acts for those charged in the indictment. This evidence is admissible in this case to enable you, the jury, to assess and evaluate the evidence upon which the Crown relies within a realistic conceptual setting." 22 The final phrase may well have been misunderstood by the jury. It may have thought that the judge considered that the "relationship" evidence was itself "realistic", that is to say, likely to be reliable. However, in my view, it did not provide such a setting in the circumstances of the case. There was evidence of a large number of sexual and non sexual assaults, very few of which were the subject of charges. In summarising the evidence, the trial judge did not identify that evidence which was "relationship" and that which was evidence of the charges in the indictment. Consideration of the crucial question, whether the jury was satisfied beyond reasonable doubt that the assaults which were charged occurred, was not made any easier or more "realistic" by the evidence (if accepted) that many other offences were committed which were definitely not charged, unless the evidence was demonstrative of propensity, which could not be used in proof of the counts in the indictment. Indeed, even if the appellant did have a propensity to assault the complainant, that, of course, would not establish whether the assaults charged had actually occurred. The learned trial judge did not warn the jury, either at the stage of admission or when the jury were reminded of the evidence in the course of the trial judge's summing up, that the appellant's apparent propensity for violence and sexual assaults (if the complainant's evidence as to these matters be accepted) must not be used in proof of his guilt of the charges in the indictment. In my view, the direction that the evidence was evidence of the relationship between the complainant and the appellant without such a warning would almost inevitably have led the jury to suppose that it might be used to conclude that the offences were but examples of typically violent assaults, sexual and otherwise, which the appellant had a propensity for committing and to move from that conclusion to accepting more readily that he had committed the offences in the indictment. 23 On resumption, the complainant said that she had mentioned "the main things I remember...there's been so many he's done". She said that there were times when he had hurt her and she said to him that she thought she was going to die as a result. She said that although he hit her a lot whilst she was pregnant, the blow to the stomach which had caused her to fall to the ground (comprising count 2) occurred two weeks after she had given birth to their son, Stephen. The prosecutor then elicited evidence concerning the relationship between the appellant and the complainant in the ensuing period. She said that he was continuously violent towards her, slapping, punching, twisting her wrists, locking the door to his unit so she could not leave, and the like. She said, nevertheless, that she continued to visit him with Stephen because she "wanted him to be a part of my son's life at that time". She added, "I thought too, he raped me, he should help me to bring up this child, and I was really pretty much just trying to make a go of it. I wanted Stephen to know his Dad at that stage". She said that the appellant would apologise to her all the time, that they would argue all the time and that she was very angry with him. She said that they would see each other frequently, sometimes daily. She said that when he hit her, he would lock the door and not let her use the phone. She said that if he hit her, he would say to her that she could not leave until she stopped crying, "because people will know something is wrong". She said that she was reluctant to "take anything out" (I think this is a reference to an apprehended violence order (AVO)) because the appellant had guns and knives in his possession and she was frightened that "it would make things worse". 24 Although the fact that the complainant eventually took out an AVO may have been relevant, since a number of the offences occurred despite it and a number of relevant communications involved its imposition, the reason for not taking it out before she did so was of only marginal, if any relevance. The defence sought to make something of this delay but that was responsive to the evidence which had been elicited by the Crown in chief: see Gipp, 194 CLR at 113, per Gaudron J as to the Crown pre-empting the defence case. It is not appropriate to elicit evidence of this kind which is prima facie inadmissible and leave it to the defence to object to discover whether delay in taking particular steps is an issue. This places the defence in the position of suggesting to the jury that the accused is attempting to conceal evidence that the Crown prosecutor thinks should be before it. 25 In my view, there was no basis for permitting the evidence concerning guns and knives to be adduced, whether as relationship or context. Moreover, except for the evidence as to the assault alleged in the second count, the evidence as to other assaults was irrelevant. The appellant was not charged with them, the evidence was so general as to make it impossible to evaluate its contextual relevance and it did not make the assault charged more understandable. It was highly prejudicial. 26 The complainant said that the events forming the third, fourth and fifth counts arose in December 1995 when she went to speak with the appellant about taking out an AVO. She said that the appellant, in effect, wanted to attempt to restore their relationship but she told him it was impossible. She said that she had a dizzy spell and crouched on the floor, feeling sick, that the appellant came up behind her and was rubbing against her as if he wanted to have sex, but she told him to get away and she wasn't feeling well, that she went and lay on the bed in his bedroom for a while, that he came in, and started touching her, despite her protests that she was feeling sick and that at this time he put his fingers inside her vagina a couple of times, despite her telling him to stop. These acts comprised count 3 in the indictment. 27 The appellant then left the room, the complainant went to sleep for a little while. The appellant returned naked and started to undress the complainant as she woke up. Despite her protests, he had sex with her. Eventually she managed to push him off. This act comprised the fourth count. After this, the complainant rolled over to make it difficult for him to continue, but he again had sexual intercourse with her, threatening her as she struggled. She said - "When I got him off that time he said to me - I was struggling around and that and he said to me, 'If you don't stop it you'll get it up your backside', that's what he used to say. I didn't want it there so I just let it go..." 28 The complainant added that she screamed at him when he got off her, she hit him in the chest and was very angry with him. The appellant apologised. The telephone rang and it was answered by the appellant. Ms Young called and asked to speak to the complainant who said that she mentioned something about the AVO and said she was going home shortly. As the complainant got to the door, the appellant told her that "an AVO is not going to stop me" and hit her nose, causing it to bleed, although the complainant said that she did not think he meant it. This blow comprised the fifth count. 29 The complainant's comment about the threat of anal intercourse, that it was "what he used to say" was irrelevant and extremely prejudicial. It was not alleged that it was said in connection with any other charge. 30 The complainant drove from the appellant's premises to Granville Police Station but only mentioned the assault and did not refer to the sexual assault as she was somewhat embarrassed. The complainant also spoke to Ms Young, who said she noticed the blood on her nose and bruises on her thighs, and said the complainant had told her that the appellant had tried to force her to have sex with him adding, "I'm sick of this, he never gives up". This fell well short of an allegation of rape. The complainant said that she had told Ms Young that the appellant had hit her but did not recall if she said anything about the sexual assault because, "it was just embarrassing". Similarly, she rang her father to tell him about the blow to the nose but again not about the sexual assault. Since her evidence was that she was uncertain whether the appellant's striking her on the nose was intentional, the terms of the complaint to her flatmate and to her father might be thought to be somewhat surprising. The complainant said that she went to the medical centre and told a doctor that she had been hit and sexually assaulted and then made a police statement about what happened, describing both assaults. She was examined at Westmead Hospital where her nose and the bruises on her thighs were examined. 31 Following these events the appellant, according to the complainant, telephoned her frequently and she decided that she would go up to Belmont, near Newcastle. An interim AVO had been taken out on 5 December 1995, the day after the assaults. A further order was taken out the following week. The essence of the complainant's evidence as to what was happening at this time, is contained in the following - "Crown Prosecutor: Q And have you told us why you moved up there? A Yeah, I just - I had enough of all the phone calls, it was just - I was just so confused, I didn't know what was - he was ringing me, I'd see him and then we would talk and then I'd say to him, 'We shouldn't be talking.' And I just got sick of the whole thing and the phone was ringing, like I said, non-stop, I felt fearful you know, as I say he's - has firearms and things and he's told me that he could get access to them, I've seen them at his house anyway and that sort of frightened me. So we left." 32 No objection was taken to any of this evidence. 33 In early February, the complainant said she had been told by her father that the appellant had been ringing him and her flatmate and said that he knew where she was. She said that she panicked and travelled back to Sydney to stay with her family. The complainant said that she rang the appellant and asked him to stop harassing her family and friends and alleged that the appellant wanted her to come and see him, saying that he was going to kill himself if she did not, that he had a knife and was going to put it through his stomach. The complainant said that she did not want him to hurt himself and she decided to go to see him. In the circumstances, especially having regard to the allegations made by the complainant both before and after this evidence, this seems not a little odd. The complainant said that, although the appellant did have a knife, "he had no intention of putting it through his stomach". He seemed happy to see her and she and the appellant engaged in conversation and talked for much of the night. The complainant spent the night at the unit with the appellant sleeping in another bed. She said that this did not bother her. In the morning, however, the appellant locked the door so that she could not leave but, when he left to go to court, she did so. She also went to court and spoke to a police officer, saying that she had gone to his unit and knew that she should not have done so. 34 The complainant returned to Belmont. Whilst there, a number of telephone conversations occurred between her and the appellant concerning access to Stephen and possible adjustments to the AVO to enable this to occur. The appellant, shortly after, arrived at the complainant's Belmont premises. He stayed for several days before being ultimately arrested. It was during this time that the occasions giving rise to counts 6, 7 and 8 in the indictment allegedly occurred. Count 6 was an assault occasioned by the appellant head-butting the complainant whilst they were in bed, counts 7 and 8 comprised two occasions of vaginal intercourse. The complainant said that on the same occasion as count 8 the appellant committed anal intercourse with her which caused her to bleed, but this was not the subject of a separate count in the indictment. 35 The complainant was asked by the prosecutor why she did not tell the appellant to leave after he had first arrived and been at the unit for some hours. She said -

"How could I force him to leave? I mean just when you get - like if I have a go at him or that, he's just going to hit me like he has before. We'd just fight and my son was there and as I later found out, he had big knives in his bag, you know...I found that out after he left, like who knows what would have happened, so I was not going to mess with him."

Later on, the complainant was asked by the Crown prosecutor why she let him stay in her unit at Belmont until his arrest. She answered - "It's not exactly let him stay, I mean as I say I can't - I wouldn't have been big enough to physically - I was slimmer then, I wouldn't have been big enough to physically force him out the door. As I said when he first came I did - I thought that he was wanting to work things out and I spoke to him about the AVO, I said I'd see a solicitor for him about giving him access to Stephen. Q. To give him access to Stephen? A. Yes. I always, all along I wanted that. Q. Why did you want him to have access to Stephen? A. Because I wanted my son to know his father... Crown Prosecutor: Q. You said you had these conversations with him where he wanted to work things out? A. Yes. Q What was that about, work what out? A. Just to make it amicable, like none of this - like as I say, he was driving me mad, that's why I left Sydney, I was a raving rat, I just couldn't take it any more, I was - I was going made from it all. Q. What was happening to you? A. Back in Sydney before I moved? Q. Yes. A. The things I said before, the assaults, the handcuffing, he had - I don't know if I mentioned he had handcuffs, he used to cuff me, my hands together or to the bed and he'd tell me that I enjoyed everything and a lot of times I wanted to go to the police and Russell would say to me 'Oh you better not do that.' And 'If you do I'll drag you down.' And he at that stage said to me that no one would believe and I believed it as well and he - there was also a time when my son was first born and Russell said that I was getting fat and I'd only just given birth and so I started starving and I became anorexic for a time there and had to get treatment. It was all just too much. And he took my son off me on one occasion. He went with another woman and they locked me out of the house and he refused to give my son back. Four days after my son was born. The only reason I got him back I was breastfeeding and I needed to get him and I rang the police and they came and went in and got my son. And I asked Russell why did he do that to me and he said he was sorry and he didn't know why he did it. I think on that night they were alleging that I was just mad and I shouldn't have a child and -- His Honour: I'm sorry, you can't tell us what other people thought? A. I'm sorry. Crown Prosecutor: Q When you say they did that include the accused? A. Russell and Liz - the lady that he went with. Q. What did the accused say to you on that night? A. Russell, all Russell said to me was he was really sorry that he did it and he didn't know why he - 'I don't know why I did it.' Q And how old was Stephen? A. Four days old, he was tiny. And so after that I went and got custody of him, I went straight and saw a chamber magistrate--

Q. Did you get custody of Stephen formally? A. Yes I did. Q. And did you have any arrangements with the accused, formal arrangements-- A. Yes.

Q. About having access to Stephen? A. I showed him the - Russell the paperwork-- Q. When was this? A. Not long after they took the baby from me. I was really angry and I thought well this isn't happening again so it was only - it would be a few days after that." 36 This evidence was followed by a large number of questions about the complainant's attempts to get her child back, concluding with the following - "Crown Prosecutor: Q. And when did you get Stephen back? A. That night. I went to the house and I knocked on the door and the lady there was going crazy, 'you're not having your son' and Russell stood inside with her and they locked the door on me and I remember it was really cold and I didn't know what to do. I was sitting out in the car freezing and I went bashing on neighbours doors trying to get someone that would let me in. People didn't want to sort of get involved and then one family let me in and I told them they won't give my baby back, so they let me ring the police. The police from Merrylands came down and they spoke to Russell and Liz Skinner and then they spoke to me and I was very annoyed and in the end they said to Russell 'you can't keep the baby, you know, give the baby back to her.' His Honour: Q. How old was the baby? A. Four days old."

This evidence had only the slightest, if any, relevance to any issues in the trial. It was highly prejudicial. I do not see how it could fairly be regarded as providing an essential context for any of the charges, let alone those that occurred at Belmont. Since the witness herself said that she was prepared to negotiate with the appellant concerning access to her son and for that purpose to negotiate some change to the terms of the AVO shortly before the offences which occurred in Belmont, the possible relevance of this material, that it demonstrated that she would be most unlikely to have invited the appellant to Belmont as he alleged, was removed. No objection was taken to it. Other prejudicial statements were made by the complainant, for example, immediately before the events giving rise to count 8, the complainant said, - "I was sitting on my bed and Russell came and like kneeled across me and he lifted up my singlet top and my cossie and he started like trying to suck my breasts. He said that he was - made a comment about trying to get me off, like when I was breastfeeding, cause when I was breastfeeding he always used to ask me could he do that I would say, 'Get lost.' And I pushed his head away and he kept trying to do it and I just kept pushing him and he pulled his pants down a little, he still had the same clothes on and he pulled his pants down a little and like I was fighting him off. Like I said he was heaps heavy then, he wasn't like - and yeah, and pulled my cossie bottoms down and -"

The comment of the complainant about the appellant's approaches when she was breastfeeding was immaterial. 37 During cross-examination, the complainant took a combative approach to the appellant's counsel. Thus, within the first few minutes the following appears - "Q. And its the case, isn't it, that after then, after you did your work experience you came in contact with Mr Marsh it seems by way of acquaintance that you, as it were, ran across him in the street, is that fair to say or not, after your work experience? A. I saw him in the streets a couple of times and then I rang the station and he answered on another matter. Q. You rang Flemington Station did you? A. Rang, or attended, yes, and Russell - I attended one time, Russell was there, he was drunk on duty and he - Q. He was? A. Drunk on duty." 38 Counsel compounded this problem, however, by asking the complainant how she could tell that the appellant was drunk and got the answer - "A. He told me, 'I was hitting the piss last night', he stunk of alcohol, he was putting his feet on the table, he was carrying on just stupid."

A few minutes further on the following appears - "Q. I'm suggesting to you from the outset that you were desirous of having a child and you let the accused know? A. That's definitely, definitely not true, no, I especially wouldn't choose him to father my child, no. Q. You wouldn't choose him to father your child? A. No, he was fat, overweight, alcoholic, he was mad back then, he had guns, he used to bash me, why would I want him?"

Of course, none of these alleged deficits, with the exception of the first three, had become apparent by the time of the first assault. Having regard to the complainant's evidence in chief that she "used to feel sorry for him" and "I had no attraction to him, he was a lot older than me", and that even after she had been raped she "just felt sorry for him...and then thought we'd just stay friends" together with the evidence that there were no assaults before September 1994, this answer was somewhat unexpected. When counsel, a few questions later, put it to the complainant that the appellant had never assaulted her and asked what was admittedly and, perhaps, foolishly, an open ended question, "What do you say about that?" the complainant responded with, "I disagree, he smashed me on the back of the head one time and I nearly passed out on the floor", an allegation which had not hitherto surfaced. The complainant's evidence was that sexual intercourse took place many times between her and the appellant and it was not the Crown case that each of these occasions either was, or involved, an assault. 39 In dealing, early in the cross-examination, with the complainant's telephone conversations with the appellant before the September 1994 incident, counsel asked - "Q. But you rang him, you've indicated, is that right? A. He rang my house every day he was ringing - I had to ring his inspector and ask him to stop calling me. Q. You rang Mr Marsh's inspector -- A. And they said he was mad, he was playing Russian roulette with his service revolver, they already knew, they had had to take it from him..."

This, again, was completely unresponsive. Counsel simply continued with his cross-examination. In dealing with the first incident, counsel asked - "Q. And is it the case that as soon as you arrived there, he's come out, as you've described, 'I want you to have my baby, I love you' -- A. Yes, yes. Q. As soon as you arrived there? A. He always used to say that, he was crazy with that, he was obsessed with - he likes women notches on his belt, I found out. Q. He didn't - I didn't hear the last part? A. I said he likes, it's a notch on his belt, another notch on his belt, that's all it was. Q. In respect of what? A. Getting me pregnant. Q. Getting you pregnant was a notch on his belt? A. Yes, I found out more about Mr Marsh since this and that's what it was, yes." 40 Shortly after this evidence, counsel questioned the complainant about when she complained to her father of the sexual assault as a result of which she became pregnant and elicited that he had said to her that he knew the appellant would be trouble and she should have an abortion. Counsel proceeded - "Q. And of course you did not have an abortion? A. That was three months, I was three months pregnant by that time -- Q. and the reality is -- Objection: Should be allowed to finish that answer. His Honour. Q. Yes, did you have anything to add? A. Yes your Honour. I was three months pregnant by that stage, I hadn't had anyone to confide in afterwards, and I don't have a mother around to go and say, well I am pregnant, you know, what do I do. By the time I old my father I was three months pregnant, they had already showed me the little ultra sound at Westmead, and I couldn't have an abortion. Russell put a lot of pressure on me not to have an abortion, he came around one night, I had to call the police, he was threatening with violence, he was drunk. Leybourne: Q When was that? A. I don't recall, Constable Jacobs came out. When I found out I was pregnant he was saying, 'Don't have an abortion Fee, I love you, I'll stand by you, I'll do everything for you, I'll support you.' Q. Why didn't you take a restraining order out then? A. I was stupid, I really was, I should have, I should have. Q. The reality is, isn't it Miss Field that Mr Marsh, was your partner as it were? A. No, he was not, he was an acquaintance. Look, if I'd started making more trouble he told me he had guns, I'd seen knives at his house, he used to steal scalpels when we were down at the hospital, he's weird. There was a fatal accident downstairs, he runs downstairs to take photos of the dead body. I mean - and you are telling me to take action against this man, I don't think so. I was fearful at that stage." Except for the reference to guns and knives, this material had not been elicited in chief either generally as "context" or as an explanation for the delay in seeking an AVO. 41 Shortly after this counsel asked when, after the September 1994 sexual assault, was the next time she was assaulted or harassed by the accused. The complainant's answer was - "A. He used to hit me a lot. When I was pregnant I grabbed the keys of the flat and I ran, and I got out, and I ran up Merrylands Road and he tackled me. I was pregnant and he dragged me to the ground and dragged me back up to his house. It was all a game to him, he did it a lot." 42 The complainant said that after she was pregnant for about five weeks, the appellant "was nice to me" but she just could not give an exact date of when he assaulted her again. Counsel attempted then to elicit what it was that occurred five weeks after the pregnancy when the appellant stopped being nice, but the complainant corrected him and said that she had meant that when, at five weeks, she found out that she was pregnant, the appellant was then being nice and she could not say "when he went nasty". Counsel then asked -

"Q. Well, to the stage where he stopped being nice, what did he do from then on? A. I'm just trying to think of the point where it did stop being nice. His Honour: Well just take your time. A. That you. Yeah, I think there wasn't an actual point, just throughout my pregnancy when we'd discuss marriage and things, I'd get annoyed because I didn't want to marry him, and I'd get a hit to the mouth or something like that, or if I didn't-- Q. What stage was that, you see I've got a note here and I've just got lost - 'when I knew I was pregnant he was being nice to me', now how long after that was it that an incident, if any occurred, did occur? A. He slapped me around a lot, I couldn't be specific until after my son was born, the ones I mentioned after my son was born that were a bit more serious, but throughout my pregnancy, yes. Q. What did he do? A. He used to hit me, he used to try and strangle, if I didn't do what he wanted, he used to twist my arm back, he used to be in the Army before the police and used to do this pressure point think on my hand, said that he knew how to hurt me and he, yes, and I forget exactly how he did it, but it used to really hurt." 43 Counsel attempted to explore the inconsistencies in the complainant's evidence concerning whether the appellant wished to marry her. The cross-examination took this form - "Q. I'd put to you that in conjunction with this engagement ring that was spoken of that a number of times prior, in the latter stages of pregnancy, that you indicated to Russell Marsh that you wanted to get married? A. No. I had every opportunity. After my son was born I did put it on him when things went bad I said, "Oh would you still marry me now?", you know things had gone bad and I realised at that point it had all just been a set-up, he'd never had any intention of anything. But as I say I have plenty of cards to prove that he wanted to marry me. If I wanted to I could have. I did not want to. Q. You said at some stage you could prove it was a set-up, is that right? A. No, I started feeling that it had all been a set-up after my son was born and things went really bad and I used to say things to him like, 'It was all bull wasn't it.' You know, "You never - this is just a set-up, you just set out to get me pregnant and you never had any intention of marriage or moving in, it was just to con me. ... Q. And the con was to get you pregnant? A. No, just being manipulative, trying to act the nice guy, marry me, marry me, I'll be there for you, I'll help you with the child-- Q. Stopping you there is I could, are you suggesting by a con or set-up that Mr Marsh was to gain a benefit from this? A. Oh he wanted a child, yes. I found out things, he loves making children with different people." 44 I might add that the complainant said that, in April and May 1995, in the latter stages of her pregnancy with Stephen, she considered that she and the appellant were friends. 45 Taking up some earlier evidence from the witness, counsel suggested to her that on her evidence there was a break in assaults from the time of Stephen's birth for approximately six weeks. This was objected to as not representing her evidence and the learned trial judge said to counsel that this was not what the witness had said but rather that the appellant had assaulted her a fortnight after the birth, to which the complainant added without any further question, "Yes, and raped me a fortnight after", an allegation made in evidence for the first time. The complainant's earlier evidence had certainly been that the next assault following the birth of her son occurred fourteen days later. Counsel put the following - "Q. When Stephen was born, I understand 25 or 26 June '95 -- A. Yes. Q. --that for the next 14 days thereabouts there was no violence, he did not assault you? A. Yes he did, two weeks after, he punched me in the stomach, he had sex with me two weeks later, he made me bleed. I was telling him it was painful on the lounge at Bennalong Street. I went to the doctor who said I had miscarriage, I was haemorrhaging and everything from him having sex with me so soon."

This was not responsive. Counsel had not suggested there was no violence, nor did he ask what had occurred.

The point of these questions perhaps was shown by counsel's next question - "Q. And of course it still remains the fact, doesn't it, putting aside what you've said, it's still early December of 1995 before you even seek a restraining order? A. That is true." 46 A conversation which occurred in late 1995 between the appellant and the complainant was tape recorded by him and part of that conversation was put to the complainant. The clear thrust of it was that she was berating the appellant for not marrying her. I pass over the apparent illogicality of her explanation for these statements, which certainly did not add to the complainant's credibility. Counsel asked - "Q. He'd pursued you wanting to get married? A Yes. Q. And then at what point did he not want to marry you? A. I don't know if he - I actually said to him, see there were many conversations - this is one of many, and he's picked out the most incriminating for me. Yeah, but he did want to marry me, yes. Q. It is incriminating, isn't it? A. We have - I have things that are in my favour too, there's a lot to come yet. Q. And I'd ask in respect to that matter, you'd agree wouldn't you that you wanted him to marry you -- A. No, no. No. There was a previous conversation where I'd put it on him, just bluffing him, 'I'll move in with you now. I'll marry you now'. Just trying to test him out, and he died, he was just like, oh no, and I realised then that he'd pursued me, got me pregnant and then I was worthless. I don't find this totally incriminating because you can see it's sheer frustration, if you can read between the lines, I'd just had enough."

Counsel quoted a comment by the complainant which suggested (rightly, in my opinion) that in fact she did wish to "become involved with him, but he's rejecting you, is that right?" "A. No. I don't know about this rejection, I said to him, 'I'll move in with you' and I was just bluffing you know, testing him and I realised as I said at that stage he'd never wanted - he just set me up to get me pregnant and I was furious. He destroyed my life, I said that in there, 'You've ruined my life, you wanted the baby'. A. And...he says, 'how many times have I tried - have I try and get you to move in'? A. Exactly, and I didn't want to. Q. And you said, 'Yeah, well I told you that that ain't good enough'. I'm suggesting to you, you wanted to marry him? A. No, I had plenty of opportunity had I wanted to marry this man. I started to find out things about him that were just unbelievable and I wouldn't want to be with a man like that. And I hate the fact that I even had a child to a man like that." 47 The complainant then said that the appellant had been threatening her and the following ensued - "Q. He did not threaten you, do you agree with that? A. Yes, he did, he said he'd bring me down if I said anything because there are things in my past that wouldn't sound too good, he said, 'I'll drag you down if you ever-- Q. And you were very-- OBJECTION HIS HONOUR: Do you have anything further on that? A. Just basically about he said he'd bring me down and he had firearms and then he could get access to them and I'd be best to keep my mouth shut."

Of course, this opened up the question of guns, which simply went from bad to worse - "Leybourne: Q. It is the fact, isn't it that when Mr Marsh was a serving police officer that in mid, approximately mid-1995 that he displaced himself of his guns, he gave his guns away, don't you agree with that? A. All I know about the firearms is the police took them from him, he came to my home very drunk one night threatening, begging me not to have an abortion, Granville police took his firearms from him, there was a ton of them in the back of the car, we went and got them back, that was the last I heard he had them, I don't know what happened from there on. Q. I am trying to put a time perspective on this because this conversation October/November and you get your restraining order or interim order in early December. I'm suggesting as far back as June/July 1995 that he didn't have his guns? OBJECTION. A. There were firearms in the home.

HIS HONOUR: Just one moment. Just rephrase the question if you would.

LEYBOURNE: Q. You have heard - I suggest to you it was mid-1995 that he did not have his guns, what do you say about that? A. Mid-1995? As I said the last I saw of them he took them back to his home, I have no knowledge if he had them but he used to tell me that he could get them, he had a friend watching them on the phone conversations...I don't know what happened from there on." 48 The prosecution tendered by consent a statement from a Senior Constable of police which established that, on his arrest, the appellant had in his possession what is described as a dingo rescue knife and a black bear classic knife. Although this evidence was tendered by consent, its relevance to the issues in the trial was slight, since there was no suggestion that the complainant was aware of their presence or that the appellant threatened to use a knife. It simply underscored the complainant's evidence that she was frightened of him and that this fear was justified by what was later found in the appellant's possession. The complainant's evidence about this matter was not admissible when it was given and its prejudicial nature was inappropriately emphasised by the tender of the officer's statement which, of course, was with the jury during its deliberations. 49 The prosecutor called evidence without objection from Detective Senior Constable Martinsons of the allegations made by the complainant concerning the events of 4 December 1995. As I understand it, this evidence was admitted as evidence of complaint. The prosecutor also tendered, without objection, a statement in virtually identical terms as that of Constable Martinsons made by his offsider. I cannot see how this added to the case, except to give emphasis to an out of court statement by the complainant. There was no proper basis for its tender, the result of which was, of course, to give the jury access to it in the course of their deliberations. The police arranged for the complainant to be examined by a doctor. The doctor gave evidence without objection of the complaint and the written history tendered without objection together with the sexual assault kit. 50 Also tendered by the Crown was a hand written note made by the complainant concerning the appellant's behaviour not only on the occasion on which she got pregnant, but subsequently. This note was left at the Granville Police Station on 1 December 1995. Parts were objected to. The note as tendered is set out below, with those parts admitted over objection (the actual extent of which, however, is not completely clear) in italics. The transcript does not reveal the basis for its tender or the rulings made by the learned trial judge. 51 Exhibit R -

• always bashing me during pregnancy * raped and got pregnant - torn clothes * punched in the stomach 2 weeks after Stephen was born.. * knocked on the back of the head - slight concussion * keys - tried to set me up * tape recording me * masturbating in front of Stephen * refused to leave my home * tried to force me into sex Wed night - bit me - again last night * threatens to kill himself & me * drinking again * manipulated me and others * He said if I take an AVO he will hide his guns and get me * took the baby from me - 5 days old * tried to get me to kill myself in the car - he rigged it up * I didn't get him charged with anything because he always said no one would believe me over him because of my past and I believed him * misuses police computer to check on my personal business and has done favours for my dad * no financial support * tells me I'm fat and disgusting - no-one will want me * got angry when I refused to marry him, said he'll get me * always threatens me but say I'm threatening him - makes people believe he's the good guy 52 The mere fact that there was or may have been some dispute between the appellant and the complainant as to the matters referred to in the note should not have led to its admission under s 108(3)(b) of the Evidence Act 1995 (as submitted in this Court by the Crown prosecutor) since the note was not in any real sense probative the matter in issue, let alone any issue of relevance in the trial, whilst its prejudicial effect was overwhelming. Although some of these matters were referred to by the complainant in cross examination (a matter to which I will return), this was not true of all the allegations. As to the others, I do not see how that provided a proper basis for its admission. In order to admit a prior consistent statement under s 108(3)(b) of the Evidence Act 1995, leave is necessary. No leave appears to have been sought, nor is the requirement adverted to by the trial judge, let alone the matters required by s 192 of the Act to be considered before leave is granted. In my view, with the possible exception of the complaints concerning counts 1 and 2, the material in the note was entirely inadmissible. The other allegations were extremely prejudicial and the mere fact that the complainant had made them in writing was scarcely, if at all, probative. Moreover, they were either irrelevant or so peripheral to the issues in the trial as to substantially deflect the proper course of the trial from an appropriate consideration of the charges in the indictment if their resolution was thought by the jury to be important. The fact that the note was itself an exhibit gave these questions completely inappropriate prominence. In my opinion, the proper application of s 192 of the Evidence Act 1995 would have required exclusion of the note. 53 Exhibit S comprised the notebook entries made by Senior Constable Clapham on 1 December 1995. These reflected the following allegations made by the complainant: that she was raped by the appellant, as a result of which she fell pregnant; that she had been assaulted on several occasions on which at least two she required medical treatment; that she had twice observed him masturbating in front of Stephen; that he tape recorded conversations with her which he edited, threatened to hide his guns and "get" the complainant if she took out an AVO, frequently told the complainant that no one would believe her claims because of her past, frequently demanded sex and tried to force her to comply, bit her on the neck so that people would think it was a love bite, was drinking alcohol more and used to have a drinking problem and punched the complainant in the stomach two weeks after Stephen was born; that she feared that the welfare authorities would try to take Stephen "from them" if they knew of the situation or if an AVO was taken out; and that, if she moved, the appellant would access the police computer to get information to locate her, saying (however) that she didn't think Stephen was in danger from the appellant and wanted the baby to be able to see his father. The note concluded with the complainant saying that she would return on 4 December with her father to make a statement with a view to applying for an AVO. 54 Defence counsel indicated that, subject to the rulings made as to the handwritten notes, Exhibit R, he had no objection to the tender of the entirety of the notebook. It is somewhat uncertain what counsel intended to convey by this concession but I think that, his objections to the contents of the note having been largely overruled, he was merely acknowledging that, by parity of reasoning, the same matters in the note book would be admitted. There was certainly no indication that he had withdrawn his objections to the admission of the matters earlier specified. I gather from an exchange between counsel and the learned trial judge that the basis for admission was whether the matter "came into evidence". I cannot see how this provided an adequate ground for admitting documentary allegations of an extremely prejudicial kind and having only the most marginal, if any, relevance to the issues in the trial. Even if relevant and adequately probative, consideration should have been given to the appropriateness tendering the notes as distinct from reading them to the jury. For the same reasons as should have led to the rejection of the note, Exhibit R, the evidence in these notes should have been excluded and, certainly, the notebook should not have become an exhibit. 55 Also part of Exhibit S was another note made by Const Clapham on 4 December 1995, stating she had received a telephone call from the complainant to say that the complainant did not wish to make a statement because the appellant was very angry and she feared what he would do to her and the baby if an AVO was taken out and that she believed that he would shoot her. Const Clapham noted that the complainant sounded very distressed. She noted that the complainant said her flatmate was going away for three weeks and that she was scared of what might happen while she was be alone with Stephen. Tender of this part of the notebook was not objected to, but the basis of its admission was not articulated, at least in the transcript. I infer that it was tendered because evidence to the same effect had been given by the complainant. Again, I cannot see a proper basis for its tender. 56 The notebook also contained an account of an interview between the appellant and Inspector Teen on 10 January 1996 (following his arrest in Belmont) relating to an alleged breach of his AVO. There was discussion concerning the possession of firearms by the appellant including the appellant's statements that he had given his firearms to a named police officer. I find it difficult to see how any of these notebook entries could be property admitted, although some were consented to; nor does there appear to be any relevance in the discussions concerning the firearms. Also tendered was a miscellaneous property receipt, showing that a large number of firearms was seized from the appellant on 8 November 1994 and returned to him on 10 September 1995. All this material was admitted without objection of counsel for the appellant. 57 The complainant was cross examined by defence counsel concerning certain conversations with a Ms Ainsworth with whom her father had a brief relationship. When counsel told the complainant that he proposed to ask her questions about a conversation with Ms Ainsworth, the complainant responded that it was all lies, that she had a falling out with her father, and that she "actually lived with a convicted serial rapist". Undeterred, counsel suggested to her that she told Ms Ainsworth that the appellant did not rape her and that the allegations she had made against the appellant were "a setup" agreed between her and her father. The complainant denied this, saying that she had told Ms Ainsworth "everything he'd done to me, how he had abused me". Counsel put it to the complainant that she told Ms Ainsworth that she had invited the appellant to Belmont, inveigled him into having sexual intercourse with her, started a fight and then alleged rape. This allegation was emphatically denied. The prosecutor, in re examination, elicited from the complainant, not only that she had told Ms Ainsworth of the events giving rise to the allegations in the indictment, but of a large number of other allegations, including that "he was a weirdo", that he had attempted to get her to commit suicide, that, when she went into labour at the hospital he started to get an erection and said "he was turned on seeing me in so much pain", that she "used to say thank God I never had a daughter, I wouldn't let him near a little girl". The suicide allegation had already been elicited by the Crown in re examination concerning a remark made by the complainant during a taped telephone conversation with the appellant - "Q. How did you feel about the accused at the time of this conversation, Miss Field? A. Very angry.

Q. And I think you told us the reasons why you were very angry? A. Yes, I mean I wanted him to help with the baby and everything, but sometimes he'd come around and just start treating me bad so I would say just go, and I'd just say to him, 'why can't you treat me decent?', I always used to say that.

HIS HONOUR: Q. You say he came around and what? A. He used to come around like I wanted him to help with the baby and everything, but he'd just start treating me bad or you know, like one day trying to convince me to gas myself in my flatmate's car, and I'd just say to him, 'just go, you know, until you can treat me decent'."

Following objection by defence counsel, the trial judge struck out the evidence concerning the car. When the allegation was repeated, in greater detail (the complainant adding that the appellant had actually attached a hose from the vacuum cleaner to the exhaust and into the car window, inviting her to "get in the car and kill myself"), defence counsel neither objected nor sought a discharge of the jury. The rest was new. None of this was admissible, despite defence counsel's failure to object. It may have been proper to re examine the complainant about what she had told Ms Ainsworth concerning the matters put by defence counsel and, perhaps, the offences charged. This was just open slather. It could serve only to inflame the jury against the appellant. The trial had long since stopped being a trial of the issues posed by the indictment for determination. 58 The appellant tendered in this Court an affidavit by his counsel at trial. Amongst other the things, counsel said - "The complainant quite often had a rapid fire type answer and she said things that were quite new to me and not responsive to the question. I realise now that I should have objected to, or had struck out, these answers or parts of answers, as they were prejudicial to the appellant, but at the time I thought that she was doing damage to herself." 59 Counsel is placed in a difficult position when a witness makes an objectionable and prejudicial answer, whether to other counsel or him or herself. Objections may be perceived by the jury as attempts to conceal serious wrongdoing behind legal technicalities. Where the Crown prosecutor elicits such objectionable evidence, he or she should not leave it to defence counsel to object but has an independent duty to ensure that only admissible material is placed before the jury. Moreover, it is the duty of the Crown prosecutor to control the witness and ask questions directed to ensure, so far as is possible, that only such evidence is adduced. It will be seen from a number of the examples set out above that evidence was elicited from the complainant by the prosecutor that could not sensibly have been regarded as admissible. It is difficult to avoid the suspicion that the prosecutor was prepared to take forensic advantage of that material and, as a matter of tactics, place defence counsel in the position of attracting the obloquy of objecting. In this case the effect was the forensic equivalent of forcing him to drink from a fire hose. I read the passage in counsel's affidavit as little more than reflecting the need to make a virtue out of necessity. However, he undoubtedly made things worse by himself asking open ended questions in cross-examination. 60 In order to raise here grounds of appeal depending on answers to questions not objected to, leave must be obtained: Rule 4 of the Criminal Appeal Rules: see R v Meier (unreported, NSW Court of Criminal Appeal, 21 May 1996) per Gleeson CJ at 10. Leave will only be granted "where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings" (R v Tripodina (1988) 35 A Crim R 183) or "it is necessary to grant leave in order to avoid a miscarriage of justice"(R v Clarke (1995) 78 A Crim R 226 per Hunt CJ at CL at 230); see also R v Abusafiah (1991) 24 NSWLR 531 at 536. 61 In R v Harvey (unreported, NSWCCA, 11 December 1996), Beazley JA, with whom the other members of the Court agreed, said - "The 'essential requirement of the law' relevant here is the requirement which is at the very heart of the criminal justice system, namely, that an accused person 'have a fair trial according to law': R v Pemble (1971) 124 CCR 107 per Barwick CJ at 117. See also Stirland v DPP [1944] AC 315 at 327. That requirement operates, where necessary, even in the face of deliberate decisions taken at trial: see Meier per Gleeson CJ at 19-20. This case could not be described as a strong Crown case. It depended very much on the jury's acceptance of the children's evidence. It is not apparent whether counsel's failure to object to this evidence was deliberate. It may have been that counsel, having been overruled on the objection taken earlier, felt constrained not to object further. It may be that he considered it was preferable to be as 'low-key' as possible on any questions that went to this issue, for fear of emphasising evidence which was adverse to his client. However, it is neither necessary to speculate as to the reason for counsel's failure nor to excuse him for the failure. The point at issue is different. It is whether the admission of the evidence was such as to amount to a miscarriage of justice such that, first, leave to raise the ground of appeal should be granted and, secondly, the ground should be upheld."

I would not go so far as saying that the Crown case here was not strong, although it was certainly far from overwhelming. As has been pointed out, counsel for the defence, at all events, did object to certain extremely prejudicial parts of the evidence which, in my opinion, should have been excluded. 62 The grounds of appeal included the following - "1. His Honour erred in admitting evidence of incidents of sexual assault that was not the subject of a count on the indictment.

2. His Honour erred in not giving adequate directions about the use the jury could make of this evidence. 3. His Honour erred in admitting exhibits R and S. 4. The trial miscarried by reason of the failure of trial counsel to object to inadmissible and prejudicial evidence and/or by his failure to seek a discharge of the jury when such evidence was given." 63 For the reasons I have given, I consider that these grounds should be upheld and, in so far as it is necessary to grant leave to do so, I propose that leave be granted. The consequence is that the convictions should be quashed and a new trial of all counts be ordered. In the circumstances, it is unnecessary to consider the other grounds of appeal. **********

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