REGINA v Wayne BALDWIN

REGINA v Wayne BALDWIN - [2004] NSWCCA 21 - NSWCCA 2004 case summary — Zoe

[7]

22 March 2004 REGINA v Wayne BALDWIN Judgment 1 LEVINE J: I agree with Bell J. 2 O'KEEFE J: I agree with Bell J. 3 BELL J: On 5 August 2002 the appellant was arraigned upon an indictment before his Honour Judge Shillington in the District Court (the Judge). The indictment contained twenty-six counts charging him with the commission of sexual assaults and common assaults against the same complainant, JL, in the period between 1 October 1981 and 2 March 1984. The appellant entered pleas of not guilty to each count and stood trial. 4 The appellant was acquitted by direction of five of the counts at the close of the evidence. On 12 August 2002 the jury returned verdicts of guilty with respect to each of the remaining twenty-one counts. 5 On 5 September 2002 the Judge sentenced the appellant to terms of imprisonment that in the aggregate amounted to twenty years with an effective non-parole period of fifteen years. 6 This is an appeal against conviction and an application for leave to appeal against the severity of the sentences that were imposed. 7 It was the Crown case that JL had been introduced to the appellant when he was aged fifteen years. JL was in the care of the Department of Community Services at the time and appears not to have had a permanent residence. He was taken by his friend to the appellant's flat in Kings Cross. There he consumed a quantity of alcohol and passed out. He woke to find that he was being anally penetrated by the appellant. Within a matter of weeks of their first meeting, JL came to live with the appellant and to believe that the appellant had been appointed as his guardian. Over the course of the years from 1982 to 1984 it was the Crown case that the appellant sexually and physically assaulted JL on a number of occasions. Ground 1 A miscarriage of justice was occasioned by reason of the failure of the Trial Judge to permanently stay the proceedings such that the trial constituted an abuse of process. 8 By a notice of motion dated 5 August 2002, the appellant claimed an order that the proceedings against him be permanently stayed. In support of the motion he relied on the affidavit of his solicitor Glenn Walsh that was sworn on the same date. A number of documents relating to earlier charges preferred against the appellant on the complaint of JL were annexed to that affidavit. 9 The grounds upon which the permanent stay was sought were set out in Mr Walsh's affidavit as follows: "The basis of the application for a stay of the proceedings against the accused is that, in summary: (a) The accused will not be able to obtain a fair trial given: (i) The age and history of the matters, (ii) the fact that the initial statement (or copy thereof) of the complainant dated 22 September 1986 is not available, (iii) the accused will be prejudiced in relation to the preparation for and conduct of his trial. (b) The proceedings are oppressive and unfair and should be stayed as an abuse of process given: (i) The trial against the accused was listed to commence on 15 August 1988 and the complainant refused to attend to give evidence without any or any good cause and as a result the accused is placed at a significant and incurable disadvantage in the conduct of his trial as a consequence of the unjustifiable conduct of the complainant, (ii) the delay in prosecuting the accused is unfair and unreasonable in the circumstances, (iii) it is oppressive for the Crown to continue the prosecution against the accused after proceedings were formally discontinued in 1988." 10 On 21 September 1986, JL made a complaint to police at the Wyong Police Station that the appellant had physically assaulted him. The following day JL made a statement to the police (the initial statement). On this occasion he alleged that the appellant had sexually assaulted him over a period of time while the two were living at Potts Point and later at Wyoming. The details of the allegations made by JL in the initial statement are not known because it has been lost. 11 On 22 September 1986 Detective Thomas and Constable Cy spoke with the appellant at The Entrance Police Station and put to him the allegation that over the period from when JL was aged fourteen years until February 1986 he had been having homosexual intercourse with him. The appellant was shown the statement that had been made by JL earlier that day. Detective Thomas put the following allegations to the appellant in the course of this interview: (i) that while the two were living at Potts Point the appellant had got JL drunk, attempted to insert his penis into JL's backside and when JL complained that this hurt, required JL to suck his penis; and (ii) while the two were living at Wyoming the appellant dragged JL upstairs, took his clothes off, striking him to the face when he resisted, and subjected JL to anal intercourse. It is not clear whether these two allegations were additional to those detailed in JL's initial statement. The appellant denied the allegations.

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12 On 5 June 1987, JL made a further statement to the police. He said that at the time of making the earlier statement he had not wanted to proceed with his complaint because he did not want his foster father and a friend named Kevin to know about the matter. He went on to say that he now had Kevin's support and that he was willing to give evidence in court about the appellant's sexual assaults upon him. 13 The statement made on 5 June 1987 referred in general terms to the allegation that the appellant had sexual relations with JL from a time when he was aged fourteen years and the two of them were living in Potts Point. He asserted that there had been sexual relations at Wyoming at a time when he, JL, was aged nineteen or twenty years. 14 While it appears that the allegations of sexual misconduct were put to the appellant in September 1986, he was not charged with any offence arising out of them until after JL made his further statement in July 1987. Thereafter the appellant was charged with five sexual offences arising out the complaint made by JL on 22 September 1986. One of these was the offence charged in count 1 of the present indictment. This count charged an offence of buggery contrary to s 79 of the Crimes Act 1900 (as it then stood). On the Crown case this was the first sexual assault committed by the appellant upon JL. The other charges preferred against the appellant in 1986 were not common to any of counts two to twenty-six in the present indictment. 15 A committal hearing of the charges preferred against the appellant in 1987 was held before the Wyong Local Court on 5 January 1988. JL gave evidence on that occasion and was cross-examined. At the conclusion of the hearing the appellant was committed for trial to the District Court at Gosford on charges of: (i) assault; (ii) indecent assault upon JL, a person under the age of sixteen years, namely, fourteen years; (iii) sexual intercourse with JL without JL's consent knowing that JL was not consenting thereto (2 counts); and (iv) buggery. 16 On 15 August 1988 an indictment signed by a Crown Prosecutor on behalf of the Director of Public Prosecutions charged the appellant with five counts in the following terms: "(i) On 21 September 1986 at Toowoon Bay in the State of New South Wales did assault, beat and otherwise ill treat JL, (ii) between 1 January 1981 and 1 June 1981 at Potts Point in the State of New South Wales did commit buggery with JL, (iii) between 1 January 1981 and 1 June 1981 at Potts Point was a party to the commission of an act of indecency with JL a male person, (iv) between 1 February 1986 and 21 September 1986 at Wyoming did have sexual intercourse with JL without the consent of JL knowing that JL was not consenting thereto, (v) between 1 February 1986 and 21 September 1986 at Wyoming did have sexual intercourse with JL without the consent of JL knowing that JL was not consenting thereto." 17 The proceedings were fixed for trial before the District Court at Gosford on 15 August 1988. On that date JL did not attend court and the trial was adjourned. 18 In a statement made on 15 August 1988 Detective Thomas said that he had informed JL of the date fixed for the trial. On the morning of the trial he spoke with JL by telephone. JL said, "I don't want to go to court … I've been thinking about it and I just don't want to go to court". 19 The Director of Public Prosecutions advised the appellant by letter dated 9 November 1988 that he had determined not to proceed further in respect of the charges upon which he had been committed for trial. 20 On 21 August 1999 JL spoke with police attached to the Child Protection Enforcement Agency. He provided a statement that bears the date 21 August 1999 and was signed on 23 August 1999 (the third statement) in which he set out allegations of a number of sexual and other assaults committed on him by the appellant. These allegations gave rise to the twenty-six counts in the present indictment. 21 In the third statement, JL referred to his earlier complaint. He said that he had been assaulted by the appellant when the two of them were living in a town house at Toowoon Bay. He had run from the town house with the appellant chasing him. He ran to The Entrance Police Station and spoke with a policeman. He was in an hysterical state. An ambulance was called and was given a shot of something to calm him down. During this period some detectives had arrived. He went on to state: "I told them about the assaults and what Wayne had done. The detectives took a statement. I told them mostly about the physical abuse and threats, I mentioned the sexual abuse but didn't tell them fully what had happened. They told me I was too upset to do too much that night. The statement I gave that night was mainly background stuff and stuff about the assault from that night." (Para [95]). 22 In the third statement, JL gave an explanation for his failure to attend the Court in August 1988 on the day fixed for the appellant's trial. He said that on the morning of the trial two big men who looked like bouncers had turned up at the house at which he was living with his friend Kevin. They had told him not to leave the home. They threatened him saying that if he did leave the house he would be sorry. He did not know either of the men. They were well dressed. They remained outside his house all that day. Neither JL nor Kevin was able to leave the house. Kevin tried to go out but "the big guys parked in front of him so he couldn't get out". JL telephoned the Detectives at The Entrance and left a message. Sometime in the afternoon one of the detectives telephoned JL and said that it was too late to go to court and that he would try to have the matter adjourned. JL had not heard from the police again about the matter. A couple of days after this incident the appellant called to JL's workplace and told him that he had been lucky not to attend court and that he should not interfere with his, the appellant's, life again.

[9]

23 On 24 February 2000 Detective Senior Constable Radmore spoke with the appellant and told him that JL had made a number of allegations against him. The appellant was arrested. He said that he had previously been to court in connection with the matter and that it had been thrown out. He was charged with a series of offences arising out of the allegations contained in JL's third statement. 24 The committal hearing was conducted before the Downing Centre Local Court commencing on 23 March 2001. JL was cross-examined concerning his failure to attend the District Court in August 1988. He gave the account that he had been told not to go to court by two men who sat outside his home during the course of the day. He said that when he telephoned the Entrance Police Station he had left his name and that he had explained that he was due to attend court that day but that he had been threatened. He asked for the detectives to ring him. He maintained he had been endeavouring to get a message to the police involved in the case that he was unable to leave the house because he had been threatened. On this occasion JL gave an account that he had gone down to the shops around lunchtime that day and that the two men had followed him. 25 JL said that he did not remember Detective Thomas speaking with him by telephone on the morning he was to attend the District Court. He maintained that had a police officer connected with the investigation spoken to him that morning he would have told him about the two men who had threatened him. 26 The committal proceedings were adjourned part heard until May 2001. On 11 May 2001 the appellant was committed for trial. 27 The twenty-six counts in the indictment involved allegations of sexual and physical assaults on fourteen occasions in the period between 1 October 1981 and 2 March 1984. It is convenient to describe the allegations by summarising the particulars of each offence as outlined by the Crown Prosecutor in her opening address: Count 1 charged an offence between 1 October 1981 and 31 May 1982 at Kings Cross, being one of buggery contrary to s 79 of the Crimes Act 1900 (the Act). This was the first occasion that JL met the appellant. He had been given some Coca Cola laced with alcohol. He passed out. He woke to find the appellant anally penetrating him.

[12]

Counts 6, 7, 8 and 9 concerned events on the second night that the two spent in the apartment at Potts Point. The appellant, JL and some others watched pornographic videos at the apartment and consumed alcohol. Count 6 charged an indecent assault. The appellant and JL were sharing a bed. The appellant rubbed JL's penis. Count 7 charged an offence of buggery. After rubbing JL's penis the appellant anally penetrated him. Count 8 charged a further offence of buggery. After the first act of anal intercourse the appellant applied lubricant to his penis and to JL's anus and again penetrated his anus. Count 9 charged the appellant with a further offence of buggery on the same occasion. The appellant gave JL a substance to inhale and again had anal intercourse with him. Counts 10, 11, 12, 13, 15 and 15 were related. They occurred after the appellant and JL moved to premises in Ashfield. Each count charged an offence on a date between 1 June 1983 and 31 May 1984. All five counts concerned events on the same day. Count 10 charged a common assault. A young man named GT called to the Ashfield premises to see the appellant and that left before the appellant came home from work. On learning of GT's visit the appellant punched and kicked JL for allowing GT to leave before the appellant got home. Count 11 charged an offence of buggery. That night an unidentified male was present at the Ashfield flat. The appellant invited JL into the bedroom and had anal intercourse with him in the presence of the third man. At the same time the third man put his penis into JL's mouth. This episode was charged as an offence of counselling or procuring an unknown male to have sexual intercourse with JL without the consent of JL contrary to s 61 D(1) and s 346 of the Act. After the first act of anal intercourse the appellant changed positions and subjected JL to a further act of anal intercourse while third person again placed his penis in JL's mouth. This incident was charged in counts 13, a count of buggery, and 14, a count of counselling and procuring an unknown male person to have sexual intercourse with JL without the consent of JL. Finally it was the Crown case that the appellant invited the third person to have anal intercourse with JL and he did so. This incident was charged in count 15, being a count of procuring an offence of buggery.

[22]

28 The Judge noted that the application had been argued on the basis that the delay in bringing the prosecution had deprived him of a fair trial and that he had suffered actual prejudice in that JL's initial statement was no longer available. The application for a permanent stay was refused. The Judge found: "This is not a case in which there is any real difference, in my view, in the accused's situation as it is at the moment, assuming that the proceedings in 2001 were the first initiation of the proceedings, if that were the situation it would not in my view be possible to submit on the part of the accused that there be a stay, and the proceedings would have eventuated between the Crown and the accused on the earlier times, deprived the accused of the opportunity of simply stating that because of the delay he is materially disadvantaged. It is important of course in a case such as this that the jury would have to be advised of the dangers of a verdict of guilty, bearing in mind the delay, and in the situation in which, as I understand it, it is a case which is dependant entirely upon the evidence of the complainant himself." 29 The appellant contends that the Judge erred in failing to stay the proceedings. In written submissions it was put this way: "It is submitted that no adequate explanation has ever been proffered as to why the complainant failed to attend to give evidence in respect of the earlier trial. Further, no adequate explanation has ever been proffered as to why the complainant failed to raise the present complaints (to the extent they do not overlap) on the earlier occasion, which was the appropriate time to do so. All this occurred in the context of the earlier charges being no-billed, not for further investigative reasons, where further proceedings may be expected, but on the basis of a 'change in evidence / loss of witness' (Annexure M). In such circumstances, it is submitted that the prosecution of the present constituted an abuse of process as being unfair and oppressive, particularly as all that since appears to have happened is that the complainant simply changed his mind about giving evidence. Additionally, the lost statement from the complainant and the missing Legal Aid file has contributed to such unfairness and oppressiveness." 30 The reference to the basis upon which the earlier proceedings had been no-billed as being "change in evidence / loss of witness" is a reference to a document that appears to be a pro forma prepared by an officer of the Director of Public Prosecutions office. A tick appears next to the column headed "Change in evidence / loss of witness" among a range of options listed as the reason for granting an application. 31 The appellant's written submissions included the assertion that the appellant's file created in relation to the earlier proceedings by the Legal Aid Commission was lost. This was said to be a further matter of actual prejudice. It is not apparent that there was evidence of this before the Judge. 32 This is an appeal brought pursuant to s 5 of the Criminal Appeal Act 1912 (the CAA) against the appellant's conviction. It does not seem to me that the Court is concerned to review the exercise of the Judge's discretion not to permanently stay the indictment so much as with whether the trial that followed that discretionary determination was unfair or an abuse of the process of the court: Maric v R (1978) 52 ALJR 631. The appellant's counsel submitted that the trial had been rendered unfair by reason of the lengthy delay and the loss of JL's initial statement and the Legal Aid Commission file. I will return to this aspect of the way in which ground 1 came to be argued in due course. 33 The principal way in which the ground was developed did not focus on considerations of unfairness. It was contended that the trial was an abuse of the process of the Court because the Director of Public Prosecutions had allowed the complainant to dictate the circumstances under which the appellant would face prosecution. The appellant contended that in November 1988 he had been entitled to consider that the proceedings brought against him had been discontinued and that absent some circumstance, such as the discovery of new evidence, he would not be exposed to a trial upon these or like allegations made by JL. He had ordered his affairs on that basis for the succeeding eleven years.

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39 The submission that the appellant had a legitimate expectation that he would not be prosecuted upon the complaint of JL should be rejected. A no bill does not operate in bar of proceedings being re-instituted. The question of whether it was appropriate to bring the proceedings after JL came forward in 1999 was a matter for the Director of Public Prosecutions to determine. There is nothing to suggest that his determination was affected by any consideration that would make the prosecution an abuse of the process of the court. 40 I turn now to the question of whether the appellant's trial was unfair by reason of the lengthy delay and the loss of both JL's initial statement and the Legal Aid Commission file. The appellant's counsel did not identify any feature of the trial that was said to have been productive of unfairness. He submitted that the vice was that one did not know what was contained in documents that were lost. A number of inferences can be drawn about the contents of the initial statement. The appellant was shown it. The allegations made by JL in the initial statement were in broad outline put to the appellant on 22 September 1986. Detective Thomas recorded the terms of his discussion with the appellant in this regard in a statement. JL was cross-examined on the initial statement by the appellant's legal representative at the committal hearing. As to the Legal Aid Commission file the appellant's counsel posited in the course of argument that the Legal Aid Commission might have retained some person to make inquiries of which the appellant was unaware. Any report of the outcome of these inquiries may have been valuable. This submission seemed to me to be a highly speculative one. 41 The fact that documents may be lost does not mean of itself that a later trial is unfair: R v Goldburg, Court of Criminal Appeal, unreported, 23 February 1993; R v Tolmie, Court of Criminal Appeal, unreported, 7 December 1994. 42 Trial counsel chose not to challenge JL upon the basis that the third statement contained allegations that he had not made in the course of his dealings with the police in 1986 and 1987. A forensic choice was made that no doubt involved weighing up the advantage of demonstrating the variations between the 1986 allegations and those made in 1999 and the disadvantage of placing before the jury evidence that JL had complained that the appellant had sexually assaulted him at a time much closer to the alleged events. In the event, the trial was conducted upon the footing that the events occurred between 1981 and 1984 and that it was not until August 1999 that any complaint was made. The tactical decision that trial counsel made was one not without forensic advantage to the appellant. 43 I do not consider that the appellant's trial was unfair by reason of the delay or the loss of the initial statement and the file. I do not consider that the prosecution of the proceedings involved an abuse of the process of the court. It follows that I do not consider that there has been a miscarriage of justice arising out of the Judge's determination not to permanently stay proceedings on the indictment. Ground one should be rejected.

[28]

Grounds 2 and 3(a) 2. A miscarriage of justice was occasioned by reason of the failure of the Trial Judge to direct the jury as to the purpose for which the relationship evidence of uncharged acts was led from the complainant and the use the jury was to make of that evidence in the course of their deliberations. 3(a) A miscarriage of justice was occasioned by reason of the failure of the Trial Judge to direct the jury as to the use it was to make of the complainant's evidence involving alleged sexual activity between the appellant and SI in the course of their deliberations. 44 JL gave evidence in chief and in cross-examination of sexual acts committed on him by the appellant that were not charged in any of the counts in the indictment. In the course of cross-examination trial counsel adduced evidence that JL had seen the appellant having sexual intercourse with his half-brother, SI. It was not clear to JL whether this sex was consensual. SI did not appear to be fighting and it looked more like rough sex. Trial counsel put to JL that his account of sexual relations between the appellant and SI was false. JL denied that it was. It appears that trial counsel may have entertained an expectation that SI would give evidence and deny any sexual activity with JL. This did not happen. 45 No objection was taken to the evidence of sexual activity between the appellant and JL that was not the subject of any charge. The evidence of the sexual activity between the appellant and SI was elicited by the appellant's counsel. No request was made to the Judge for any direction concerning the use that the jury might make of this evidence. No direction was given. It is convenient to consider ground two and ground three (a) together since they raise some common issues. 46 Evidence that the relationship between the appellant and JL was one characterised by frequent sexual assaults upon JL was volunteered as the Crown Prosecutor was seeking to direct JL's attention to the incident charged in count six. This count charged the appellant with an indecent assault on JL at Potts Point between 1 April and 31 May 1982. This was opened as an occasion on which the appellant got into bed with JL and put his hand on JL's penis and rubbed it up and down. This count was associated with count 7, which charged the appellant with buggery, it being alleged that immediately after the indecent assault he had anal intercourse with JL. The Crown Prosecutor asked JL: "Q. Did the guests finally leave after the … A. Yes. Q. …. Gathering? What happened then with the accused, if anything? A. Mr Baldwin tried to have sex with me again. Q. What did he say to you, if anything? A. I can't remember at this present moment. Q. Do you remember what type of sex he tried to have? A. Oral sex. He had tried at one stage to have anal sex as well, because there was - it got to a stage of like a daily event, and if he couldn't have anal sex, he would want oral sex, either way of relief to him." (T 22.33 - 47) 47 Further evidence of sexual misconduct not charged in the indictment was volunteered by JL in chief when the Crown Prosecutor sought to lead evidence of the incidents charged in counts 16 and following. JL had given evidence of the incident at the Ashfield premises involving assaults upon him committed by the appellant and a third man. These incidents were charged in counts 11 to 15. The Crown Prosecutor then asked: "Q. Do you remember something happening when you were seventeen at Ashfield? A. Of specifically - at what time because this was more of a daily event it became to me." (T 32.24-27) 48 There was more evidence in this vein when the Crown Prosecutor endeavoured to lead evidence in support of count 24: Q. Now, about a month after the incident at Liz' Place, did something happen with Mr Baldwin when you were at home and he returned home from work? You were at home sitting there in the lounge room? A. I don't know what you are - a lot did go on, and it felt like it was happening on a daily basis. So when you say a month later, it seems like it could have been two months, but a month later something had happened, and unless you are more …" (T41.49-58). 49 The Crown Prosecutor sought to adduce evidence of the offences in chronological order. As he was being taken through his account in this way JL gave no evidence of the incidents the subject of counts 16 to 18. The Crown Prosecutor returned to this later in the course of JL's evidence in chief: "Q. Just preceding then Mr L at Ashfield do you remember any other incidents that you haven't told us about? A. Well, which one because this was a regular event what I did. Q. How regular was it at Ashfield? A. Sometimes it was daily, sometimes it would be every second day, sometimes it would go - I remember once it was three times. Q. Three people in what? A. In one day. HIS HONOUR: Q. What are we talking about now is this sucking is it or sexual acts? A. Sexual acts." (T 69.2-19) 50 There was further evidence of uncharged acts in the course of JL's cross-examination. Thus, he was asked by trial counsel: "Q. So he didn't try to have anal sex, he did? A. He did, but he was trying, and then finally got to that. Q. And you said that it became a daily event, is that right? A. Up to a daily, sometimes might be a day where it wouldn't happen, and the following day it might happen a couple of times. (T 128.16-24). Q. That was just an exaggeration wasn't it, Mr L? A. Well, over the years and what's happened, I would put it down to a daily event because sometimes they've even got up to five times in one day. (T 129.1-5). Q. As I understand your evidence up until this point there is daily sexual assaults by Mr Baldwin? A. Up to daily, yes. (T 130.28-30). Q. Was this at a time when the daily sexual assaults by Mr Baldwin were continuing upon you? A. Yes." (T 133.35-37). 51 In addition to these generalised assertions that he was the subject of regular sexual assaults, JL gave evidence of specific episodes of anal intercourse at the Ashfield premises that were not the subject of any count in the indictment. The appellant contends that JL gave evidence of three such incidents. The Crown submitted that upon a proper analysis of JL's evidence he had described only two acts of buggery that were not charged. The Crown submitted that one of the episodes of anal intercourse on which the appellant relied in support of this ground was the offence charged in count 18. That on the hearing of the appeal counsel were not able to agree as to whether JL's evidence of one act of anal intercourse was the offence charged in count 18 tends to illustrate one of the problems of which the appellant complains. 52 It is necessary to set out JL's evidence of the three episodes of anal intercourse that are relied upon by the appellant in support of this ground. This evidence is also relevant to ground 4, which contends that the verdicts of guilty on counts 17 and 18 are unreasonable and cannot be supported by the evidence. The evidence in contention was as follows:

[54]

Q. Where were you hit? A. Across the face. It was like he was behind, he grabbed me hair and I started to - screaming, and then I remember him hitting me. I stopped; I started to cry. I remember a few minutes later, he started to verbally abuse me, saying that I was worthless. He was still penetrating me at the time. A couple of minutes later, I remember him ejaculating inside me. I remember him getting up, saying to me that I was worthless and stop fighting. I remember him stating, why do I always fight, why do I want to fight it. If I let it go and let him do what he wants to me, it would be easier. I had made as near as possible with - to him, and every time that I didn't want him to do what he did to me, I asked him to stop. He didn't. Every time I asked him to stop or I would fight, fight him, push him away, he would get more aggressive …" 53 At trial the Crown Prosecutor opened counts 16, 17 and 18 in these terms: "In late '83 or early '84, the accused came into JL's room in the middle of the night. He pulled his shorts down and penetrated his anus. JL said, 'why are you doing this to me,' and the accused said to him, 'you are a useless root. You have to be more cooperative. This is the way it works.' Jason sat up in bed. Then the accused slapped him across the face and said, 'if you want to get smart, I'll get rid of you, you will be easy to replace.' So that incident there forms the basis counts 16 and 17. … About a week after that, the accused again awoke Jason by penetrating his anus with his penis. Jason tried to tell him to stop, but his head was being pushed hard into his pillow and he was unable to speak. The accused ejaculated and got up and left, and that is count 18, another count of buggery" (T 6.49-7.10). 54 JL gave no evidence of the incident charged in count 16 and the Judge directed a verdict of acquittal. The Crown concedes that JL gave no evidence of the incident charged in count 17. This count was nonetheless left to the jury and a verdict of guilty returned on it. In her closing address to the jury the Crown Prosecutor said: "JL told you about count 17, a count of assault at page 74 of his evidence. I'm sorry I know you don't have a transcript although you may have one later. When I make those references to pages it is so my learned friend can follow me and check that I am relating the evidence correctly. He said that he was in the lounge room and had been watching a movie. There was a sheepskin rug between the lounge. 'I was in what they call a cradle position, my pants, my boxer shorts were down, he was trying to penetrate me. I remember his hand on my hair pulling me by the hair. I screamed. I remember being hit.' He was hit across the face. 'It was like he was behind. He grabbed my hair. I started to cry. I remember a few minutes later he started to verbally abuse me saying that I was worthless. He was still penetrating me at the time. A couple of minutes later I remember him ejaculating inside me. I remember him getting up saying to me that I was worthless and stop fighting. I remember him stating why do I always fight, why do I want to fight it. If I let it go and let him do what he wants to me it would be easier.' So that was the account, ladies and gentlemen, of an assault and of a count of buggery which followed it. Count 19 was earlier in the evidence about the time just before he turned seventeen …"(T 12.08/02 14.24-48). 55 It is to be observed that having opened count 18 on the basis set out at paragraph [51] above, the Crown Prosecutor in closing, invited the jury to convict the appellant of this count on JL's evidence of episode three. She, wrongly, referred to the offence charged in count 17 as being the hit across the face that took place during the act of anal intercourse on the sheepskin rug in the lounge room. 56 On the hearing of the appeal another Crown Prosecutor submitted that the evidence given by JL that I have described as episode two was evidence of the offence charged in count 18. In written submissions the Crown contended: "However, the complainant did give evidence of the events opened as count 18. That offence was opened as an offence where the complainant awoke to find himself being anally penetrated by the complainant. His head was being pushed into his pillow and he was unable to speak. (p 7, from line 5 of the Crown opening). The complainant initially omitted this count in his evidence. However he eventually gave the evidence. (T 73, from line 18). The Crown in closing address referred to a similar incident that occurred in the lounge room, and a related assault to that incident. (T 14 from line 24). Neither the trial judge nor defence counsel referred in detail to the location of the incident the subject of count 18. However the evidence given about it was consistent with the opening address and in these circumstances the verdict on count 18 was not unreasonable and was supported by the evidence."

[57]

"It is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was placed before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence: R v Beserick (1993) 30 NSWLR 510 at 16; R v Fraser (NSW Court of Criminal Appeal, unreported, 10 August 1998) at 28; R v Greenham [1999] NSWCCA 8 at [28]. Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v AH , above; BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; R v RNS [1999] NSWCCA 122. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as 'guilty passion' or 'sexual interest'. Further, generally it will be necessary for the judge to give warnings that they should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment or reason that because the accused may have done something wrong to the complainant on some other occasion that he must have done so on an occasion which is the subject of any charge: R v Greenham , above, at [28]-[29] approving the directions given in R v Beserick , above, and R v Wickham (NSW Court of Criminal Appeal, unreported, 17 December 1991). I believe that the directions given by the trial judge fell well short of what was required in this case. The admission of evidence of this nature carries with it the real risk that the jury might misuse it. The limited purpose for which the evidence was placed before the jury and the limited use that could be made of it by them during their deliberations should have been brought home to the jury in unequivocal terms. The trial judge did not do so in this case during the summing up. Nor did he explain to the jury the basis of its admission when the evidence was first placed before them during the examination of the complainant: R v Beserick , above, at 516." 60 In R v Dixon [2001] NSWCCA 39 this Court again emphasised that it is the duty of the trial judge to direct the jury as to the purpose for which evidence of uncharged acts of sexual misconduct has been led. 61 In this case there existed a very real risk that the jury might reason that the appellant was guilty of one or more of the counts charged against him on the basis of an acceptance that he was a person given to sexually assaulting JL on a daily, or near daily, basis. The circumstance that the jury returned a verdict of guilty with respect to the offence charged in count 17, when it is common ground that JL gave no evidence in support, may be thought to underscore the point. 62 As to the detailed evidence given by JL of the episodes of anal intercourse in the premises at Ashfield that were not charged in the indictment, it is sufficient to note that JL did not give evidence of an incident consistent with that particularised in the Crown Prosecutor's opening address in support of the offence charged in count 18. The Judge did not refer to the evidence in any detailed way in the course of the summing-up. His only reference to the offence charged in count 18 appears to be a passage at SU 7: "The last act (referring to the counts charging the appellant with the offence of buggery) is alleged to have occurred at the second house at Ashfield. The complainant says that he was awoken and that he was told that he was worthless, he was struck about the face. He said it was just before he turned eighteen. That again was an act of buggery." 63 Count 18 appears to have been left upon the basis of the evidence of episode three given at T 74.11-75.1. On the hearing of the appeal, the Crown sought to defend the conviction by reliance on the evidence given by JL of episode two. That it was necessary for careful directions to have been given to the jury, including that it was not open to convict the accused on any given count by reference to evidence of uncharged acts, may be thought to be reinforced by the circumstance that the Crown Prosecutor invited the jury to do just that and neither trial counsel nor the Judge appear to have noted it. No doubt this was a reflection of the difficulty of conducting a trial with so many counts charged in the indictment. 64 No direction was given concerning the use that might be made of the evidence that JL had seen the appellant having rough sex with his half-brother. The Crown submits that the absence of a direction occasioned no prejudice to the appellant because the sexual activity involving SI was consensual. Further, in the Crown's submission the allegations in counts eleven to fifteen involved the appellant and a third man having sexual relations with JL at the same time. There were also allegations that formed part of the Crown case that the appellant arranged for JL to have sexual relations with other men. In these circumstances the Crown submitted that the evidence of sexual contact between the appellant and SI was of little consequence and did not occasion any real prejudice to the appellant. In the Crown's submission it was not significant that his counsel did not seek a direction. It was suggested that a direction would have only served to give the evidence greater prominence. I do not agree. There was a real risk that the jury might use the evidence that the appellant had sexual relations with SI to reason that he was guilty of the offences charged in the indictment because he was a person with a disposition to have sexual intercourse with young men: BRS v The Queen (1997) 191 CLR 275. 65 The appellant requires leave to rely upon grounds 2 and 3(a). It is regrettable that the Judge did not receive greater assistance from counsel. However, notwithstanding the failure of counsel for the appellant to seek the direction the subject of the complaint in grounds 2 and 3(a), I consider that the appellant should be allowed to rely on these grounds. The absence of any direction as to the use that the jury might make of the substantial body of evidence of the appellant's sexual misconduct with JL on occasions not charged in the indictment and of his sexual relations with SI gives rise to a substantial risk of a miscarriage of justice. In my opinion, grounds 2 and 3(a) have been made good and the appeal should be allowed. 66 It is not necessary to consider grounds 3(b) or 5 since, even if successful, neither would require that verdicts of acquittal be substituted.

[59]

69 There was evidence of an act of anal intercourse that was consistent with the incident that had been particularised as the offence charged in count 18. This was the evidence identified by the Crown on the hearing of the appeal at T 73 line 18 and following. It is true that the evidence did not establish that this incident occurred within the time frame limited by the indictment. However, in the way the trial was run, time does not appear to have been a material element: see the discussion in R v RNS [1999] NSWCCA 122 at [79]. 70 In some cases where the conduct of the Crown has caused the trial to miscarry the Court may determine that it should not be given a further opportunity to patch up its case against an accused: R v Anderson (1991) 53 A Crim R 421 per Gleeson CJ (with whom the other members of the Court agreed) at 453. However, this does not seem to me to be such a case. Count 18 was one of a number of counts. The trial miscarried because neither counsel nor the Judge gave attention to the need for directions as to the use to be made of the considerable body of evidence of uncharged sexual misconduct involving the appellant. I am not of the opinion that the proper consequential order with respect to count 18 is for this Court to substitute a verdict of acquittal. Count 18 should stand or fall, in terms of the consequential order, upon considerations that relate to each of the counts, save count 17, upon which the appellant was convicted. 71 The appellant submitted that in the event his appeal succeeded the proper order of the Court would be that there be no new trial. In this respect, emphasis was placed on the matters that had been urged upon us in support of ground 1. Particular emphasis was placed upon the fact that the events are said to have occurred many years ago. The appellant has been put at risk of conviction for a very large number of offences in no small measure as the consequence of JL's conduct in electing not to give evidence at the trial that was fixed for hearing in August 1988. Had he stood trial on that occasion on the five counts alleged against him he would not have been at risk of prosecution for a large number of offences that JL had chosen not to disclose in a timely way. 72 I have concluded that the proper order is to direct a new trial. The allegations that JL makes involve the commission of serious criminal offences. Generally, there is a public interest in the prosecution of persons accused of serious offences and in having a jury determine the question of whether guilt has been proved. It is a matter within the discretion of the Director of Public Prosecutions to determine whether it is appropriate to proceed in respect of an indictment that charges the appellant with so many counts. It may be thought that a number of the difficulties that attended this trial were brought about as a result of the decision to proceed on an indictment containing so many counts.

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