RH v R - [2014] NSWCCA 71 - NSWCCA 2013 case summary — Zoe

NSWNSWCCA

RH v R

[2014] NSWCCA 71

Court of Criminal Appeal (NSW)|2013-12-12|Before: Ward JA, Harrison J, Hulme J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2013-12-12

Before

Ward JA, Harrison J, Hulme J

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

Judgment 1WARD JA: This is an appeal against the appellant's conviction for a number of child sexual assault offences. The offences were committed against two children that he and his wife had first fostered and then adopted. To preserve the anonymity of the complainants, I have referred to each of them (and to others by reference to whom their identity might be revealed) by use of pseudonyms. 2Six of the seven counts on the indictment related to conduct over the period from September 1989 to 1993 against one foster daughter (Jane), when she was aged between 9 and 12 years. 3The seventh count related to conduct in 2003 against another foster daughter (Kay), when she was 12-13 years' old. That count was added by way of amendment to the indictment as a consequence of evidence that Kay gave during a voir dire hearing before Finnane DCJ in advance of the trial. 4The appellant was tried by a jury of twelve in a hearing before Lakatos DCJ. The appellant was found guilty on all but one of the counts relating to the conduct against Jane: three counts of sexual intercourse with a child under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW) (counts 1-3); one count of sexual intercourse with a child aged between 10 and 16 years, contrary to s 66C(1) of the Crimes Act (count 4); and one count of aggravated indecent assault on a child under 16 years, contrary to s 61M(1) of the Crimes Act (count 5). 5The jury did not reach a verdict, and was discharged, on count 6. That was a further count of aggravated indecent assault on a child under 16 years but one which, unlike the others, was not alleged to have taken place during the night in Jane's bedroom; rather, it was alleged to have taken place while swimming at a beach. 6The appellant was found guilty on the sole count relating to conduct against Kay, in 2003, a count of aggravated indecent assault on a child under 16 years contrary to s 61M(1) of the Crimes Act (count 7). That conduct, again, took place in the child's bedroom but occurred in the morning. Kay also gave evidence at the trial of two earlier uncharged incidents of similar abuse, on which the Crown relied as context and tendency evidence. 7Relevant to some of the grounds on which the appellant now appeals against his convictions is the fact that he had pleaded guilty in 2010 to five counts of aggravated indecent assault involving a third foster daughter (Lisa). Those offences were committed between December 2005 and November 2006, when Lisa was 11 years' old. Evidence of the conduct that was the subject of those convictions was before the jury by way of an agreed statement of facts. Further, each of the appellant, his wife, Lisa and Kay gave evidence relating to the offences against Lisa and/or as to the circumstances surrounding Lisa's disclosure of the conduct to which the appellant had pleaded guilty. 8The appellant was sentenced by Lakatos DCJ to an aggregate sentence comprised of a non-parole period of 5 years with a further period of imprisonment for two years from the expiry of the non-parole period. He is eligible to be considered for parole at the expiration of the non-parole period on 17 July 2017. There is no appeal from the sentence imposed by Lakatos DCJ. There was no suggestion in the reasons on sentence by the trial judge of any disquiet in respect of the convictions.

[3]

Jane 11Jane was placed in foster care with the appellant and his wife in June 1989, when she was almost 8¾ years' old. Prior to that, Jane had been in temporary foster care for approximately 18 months with another carer. She had been removed from the care of her biological mother when she was 7 years' old. 12At the time Jane was placed in the care of the appellant and his wife, their three biological daughters were still living at their home and the appellant and his wife had already fostered, and adopted another daughter (the appellant referring to his three biological daughters and the first adopted foster daughter as "more or less [his] first family"). 13Jane was adopted by the appellant and his wife when she was 12 years' old. The appellant's evidence was that Jane had been "desperate" to be adopted "by hook or by crook". 14The offences found to have taken place against Jane occurred both before and after her adoption. Jane's evidence was that after she came to live with the appellant and his wife the appellant engaged in "tickle fights" with her (conduct that the Crown characterised as "grooming behaviour"), which involved the appellant tickling various parts of her body but, she said, mainly touching her breasts and genital area. Jane's evidence was inconsistent as to when the tickle fights had commenced and for how long they had continued before the first occasion on which the conduct with which the appellant was charged, and found guilty, occurred. 15Jane said that when she was "about" 9 years' old, the appellant started coming into her bedroom at night (identified as bedroom 2), touching her breasts, genital area and face; rubbing her vagina; and digitally penetrating her vagina. Jane's evidence was that the appellant's conduct "eased off" once she commenced menstruation at around 12 or 13 and that it had stopped altogether by the time she was 14 years' old. Jane left the appellant's home when she was about 16-17 years' old (i.e., around 1996/1997). The appellant described that as a "traumatic" time, being the first time that one of the family had left in unhappy circumstances.

[4]

Kay 16Kay and her brother were placed in foster care with the appellant and his wife in July 1994. Kay was just under 4 years' old. At that time, Jane was nearly 14 years' old and the only child still living in the appellant and his wife's home. Kay and her brother were adopted by the appellant and his wife in 1997, after Jane had left the home and around the time that Lisa and her sister were placed with them. 17Kay gave evidence of sexual abuse by the appellant occurring in 2003 (after Jane had left home). She had a specific recollection of three particular incidents, when she was around 12-13, when she said the appellant put his hand into her underwear and rubbed her vagina on the outside, although she said that the abuse had occurred on many times. Kay did not recall the appellant ever having touched her breasts. Only the third incident was the subject of a criminal charge (count 7). 18The first specific incident which Kay recalled was placed by her as occurring when the appellant's wife was in hospital. Kay said that on that occasion, she had asked the appellant if she could sleep in his and his wife's bed and that when she was in their bed, the appellant had put his hand in her underwear and rubbed outside her vagina. Kay said that on that occasion the appellant had said to her "Do you like that?" (on the voir dire she had put this as "Do you not like that?" and "Do you not like this?"). Kay did not think that this was the first time that the appellant had touched her inappropriately, because she could remember feeling that it was a familiar thing to happen, but it was nevertheless the first incident that she was able specifically to recall. (From documents subpoenaed from two hospitals at which the appellant's wife had received treatment, the first such hospitalisation was in 2000. If so, this would place the first incident recalled by Kay as occurring in 2000. If so, she would have been around 10 years' old at that time.) 19Kay placed the second incident as occurring shortly after the first, this time when she was in her own bed (identified by her, at the trial, as bedroom 2 but about which she was uncertain at the voir dire hearing - on that occasion she was not sure whether it was a different bedroom from that of the count 7 incident, but was sure that it was a different bed). At trial she also confirmed that it was a different bed. Kay said that the appellant had come home from a Lions Club meeting. Kay said that she had asked the appellant to tickle her back and that he did so but that he then put his hand down her pants and reached underneath and rubbed her vagina. The timing of this incident is of some significance, since the evidence of the appellant and his wife was that in 1997, when Lisa joined the household, Lisa occupied bedroom 2. 20As noted, those two incidents were not the subject of any charges against the appellant but were relied on by the Crown at the trial as context and tendency evidence. 21The third incident (which was the subject of count 7) was one that Kay recalled occurred in a different bedroom (identified as bedroom 5) and took place in the morning. Kay said that she was in bed and that the appellant came in, put his hand down her pants and rubbed her vagina; that she said to him, in what she described as "a joking manner" that she would scream; that she then said that she needed to go to the bathroom; took a mobile phone, went to the bathroom and called the appellant's wife, who she said was at work. Kay said that she then ran to a caravan at the side of the house and locked herself in; that she was very upset and was crying; that the appellant tried to open the caravan door; and that the appellant had said to her "Come out. We can talk about it" and had asked her if she had rung her mother. Kay said that this was the last time that the appellant had touched her (by which, in the context, I infer meant that this was the last time he had touched her inappropriately). 22Kay's evidence was that she disclosed the appellant's conduct to the appellant's wife that same day, when the appellant's wife returned from work. (I refer to the circumstances and content of this disclosure in more detail later in these reasons.) Kay remained in the appellant's and his wife's home until early 2009 when she left to undergo vocational training.

[8]

Kay 29The next evidence of any complaint about the appellant's conduct occurred in 2003 at the time of the incident the subject of count 7. It is not disputed that Kay rang the appellant's wife at this time. Kay also locked herself in the caravan next to the house (I will refer to this incident of abuse as the caravan incident although there is no suggestion that it took place in the caravan.) There is no dispute that when the appellant's wife came home there was a disclosure of some kind made to the appellant's wife on this occasion, as to the appellant touching Kay. However, the versions given by Kay, on the one hand, and by the appellant and his wife differed markedly. 30At the voir dire hearing, when asked what she had told the appellant's wife on that occasion, Kay said "I don't remember. Just that Dad had touched me. Nothing other than that". At the trial, Kay said that she had told the appellant's wife that "dad had stuck his hand down my pants and had touched me"; that he had touched her vagina and that it was not the first time. 31Kay also said that, after that incident, there was a conversation with the appellant's wife as to whether Kay wanted the appellant to move out or if Kay wanted to move out and live with her older sister (Mary) and that the appellant's wife said that they could not tell anyone because the other foster children (by this stage, Kay's brother, Lisa and Lisa's sister) were too old to get new homes. The appellant's wife denied this. Kay also said that the appellant's wife promised her that it would never happen again to anyone and said "I'll make sure that it doesn't happen again ever". 32The version given by the appellant's wife, consistent with the version she gave to a psychiatrist later that year and with the version given by the appellant, was that Kay had said to her words to the effect that the appellant had taken a kitten out from underneath her shirt and had touched her breasts; that she was angry; and that she had questioned whether he had a right to do that. (That version of events was not wholly consistent with the version given later to the Department of Community Services (DOCS) caseworker to whom the incident was reported.) 33At trial, Kay denied that when this incident occurred she had had a cat or kitten down the front of her shirt; said that she did not think that she had had a cat or kitten in the room when the appellant came in; said that she did not like animals in her bed; said that she did not ever remember the appellant touching her breasts; and denied that she had told the appellant's wife that the appellant had touched her breasts as he was taking the cat away from her that she had down the front of her nightie. 34Later in 2003, the appellant and his wife took Kay to see a psychiatrist, Dr Rewais. The referral to Dr Rewais was provided by the appellant's doctor, Dr Smith. There was some doubt in the evidence as to how that referral had been procured. The appellant's wife, when giving evidence at the trial, was questioned by the Crown as to the circumstances in which that referral was made; in particular as to the answers given by the appellant's wife to the Court at a pre-trial hearing on 29 February 2012. The appellant's wife accepted, at trial, that at the pre-trial hearing she had said she was unable to recall the name of the "counsellor" and that she thought it was someone at Cronulla. It was not disputed that at all relevant times Dr Rewais' practice was based at Miranda. 35The appellant's wife denied that she had made the arrangements for Kay to see Dr Rewais, said that she was not aware who had; and said that she did not remember what she had told Kay and did not know at the time that her husband had been seeing Dr Smith in July and August 2003 (though she knew he was being treated by a doctor at that time. The appellant's wife also accepted that at the pre-trial hearing her evidence as to how she came to find the counsellor had been that she did not actually recall but that it could have been somebody whose name or information had been given during a DOCS meeting. 36According to Dr Rewais' notes, there were three consultations with him. The appellant's wife gave evidence, inconsistent (in this respect and others) with the psychiatrist's contemporaneous notes, that she had only attended in consultation with Kay once and that she had not spoken with Dr Rewais again until after he had concluded his discussions with Kay (though she said that Kay had attended Dr Rewais' office on a couple of other occasions). 37At the voir dire hearing, Kay said that when she saw the "counsellor" (Dr Rewais) she had "said not exactly what he had done to me, more like a watered down version, I guess to protect him" and that she had said "that he just touched my breasts, which weren't really breasts then". At trial, she admitted that she had given what she called a "watered down" version of the incident to the psychiatrist; said that what she had told Dr Rewais was a lie; and said that she had told him because that was what her mother had told her to do. Kay explained what she had meant by "watered down" was that she thought touching someone's breasts was less bad than touching someone's vagina. 38Dr Rewais' notes recorded that the appellant was present at that first consultation and that both the appellant and his wife became very upset and angry when he informed them that he would be obliged to make a formal notification of the incident to DOCS. 39Dr Rewais said that the appellant's wife had told him that she was "shattered"; that she felt betrayed; that she would not have sought help if she had known that this was going to happen; that it would rip the family apart; and that she had raised concerns as to her business (as a licensed childcare worker). Dr Rewais' notes recorded that Kay was very, very upset, scared and distressed and that she did not want to get the appellant and his wife into trouble; and that "Kay seemed to be under a great deal of pressure to minimise the significance of the alleged abuse". His recollection was that the appellant and his wife were pushing not to have the notification made and not to make "too much of an issue of that". He said in his evidence in court that Kay was already quite distressed before he had mentioned the notification to DOCS. 40Dr Rewais' impression at the time, from Kay's level of distress and how she was presenting, was that Kay did not feel that the incident was "an incidental situation". He was of the opinion that "something" had happened and he said that he had enough concern to make the notification to DOCS. 41Dr Rewais said that there was a suggestion at the time (he thought it would have been by the appellant's wife, as she had been doing most of the talking in the sessions) that the family would contact DOCS first and would then provide him with the contact details of someone at DOCS for the purposes of the notification; and that they did so. He later spoke with a DOCS caseworker (Ms McKenzie). He also wrote to the general practitioner who had referred Kay to him (Dr Smith) recording, inter alia, that the appellant had appeared "remorseful" at first but in subsequent appointments had become very angry. (The appellant denied having attended during the consultation for any of the subsequent appointments). 42At trial, the appellant's wife said that she did not recall telling Dr Rewais anything (his notes said that she said she was shattered); could not recall the conversation at all; did not recall that Dr Rewais had informed her and her husband that he would have to notify DOCS; denied that Dr Rewais had told them on the first visit that he would have to notify DOCS. Then, quite remarkably given the content of Dr Rewais' contemporaneous notes and the likely reaction that any such advice would be expected to cause, the appellant's wife said that at the final conversation Dr Rewais had said "I don't think that there is any particular problem here but I think that maybe we should speak with DOCS" and that perhaps she and Kay would like to go and speak to DOCS before he did. The version given by the appellant's wife is inconsistent with Dr Rewais' evidence that he considered that the disclosure gave rise to an obligation on his part to make the relevant notification. 43Significantly, when considering the credibility of the appellant's wife, she said at trial (inconsistently with Dr Rewais' contemporaneous notes) that she did not recall becoming quite angry in the consultation with Dr Rewais; did not recall raising her voice to him; did not recall that she had told him that she felt betrayed or that she would not have sought help if she had known that he was going to notify DOCS; did not tell him that it would rip the family apart; and did not express concerns about the ramifications for her business or about the other children in foster care with her at that time. She professed a complete lack of recollection about the conversation with Dr Rewais. She did not recall any meeting with Dr Rewais where her husband was present; did not recall being "very upset" though she did not deny that she "was upset at the suggestion that we should introduce DOCS into any procedure" and said that the reason for this was that "I just felt it didn't warrant what was suggested". 44The appellant's wife agreed at trial that she had contacted DOCS around that time and had made an appointment with somebody that she knew at DOCS. She said she could not recall who had suggested anything but added that her memory was that Dr Rewais had suggested that perhaps she should take Kay and have a talk with them. 45The DOCS caseworker to whom the appellant's wife spoke (Ms McKenzie) was at one stage a DOCS caseworker for Lisa (and someone with whom the appellant's wife said she had had previous dealings with other children who had been placed with her). The appellant's wife accepted that at the pre-trial hearing she had said that she and Kay had seen Dr Rewais in the morning and then had seen the DOCS person about lunchtime or early in the afternoon on the same day, but at trial she said that was not her recollection and she did not know when she had seen them. 46Kay's evidence was that the appellant's wife had written out on a piece of paper, in advance of the meeting, what she was to tell DOCS in relation to the incident (namely, "that Dad had touched my breasts and that he was just checking puberty-wise what was going on with my body and that I wasn't concerned about it at all; but that Dr Rewais had said that he had to report it" and that this was what she had said to the DOCS caseworker. The appellant's wife denied that she had written anything at all and the appellant denied having seen any such document. 47Ms McKenzie gave evidence of the interview with the appellant, his wife and Kay. Ms McKenzie thought that the appellant's wife had arranged the meeting but was not one hundred percent sure; other than that she knew that she had not arranged it herself. She thought that the appellant's wife had spoken first and said: She said something like [the appellant] had touched [Kay] on the breast and, like, and got a surprise and said, "Oh, boobs," like it was a surprise that she was developing ... my memory is that they almost made it sound like it was an accidental thing that happened. 48Ms McKenzie's recollection was that the appellant's wife had dominated the conversation. Ms McKenzie said that she then had a separate short interview with Kay and that Kay had said "it was a very minimal thing that happened ... she almost made it sound like it was an accidental thing. She was quite embarrassed". Ms McKenzie said that she asked Kay whether she was upset by it and that Kay said that she was not and that she asked Kay whether she wanted to take it any further and that Kay said she did not. Ms McKenzie spoke immediately with her supervisor and said that he had said that "from what [Kay] had told me that we really didn't have grounds to take it any further". Ms McKenzie could not recall any mention of a cat. 49Ms McKenzie was not aware of the fact that Kay had seen a psychiatrist in relation to this incident and was not informed that the appellant and his wife had obtained a referral from his doctor to take her to the psychiatrist in relation to the incident. 50Kay's evidence was that the first time that she communicated to anyone, other than the appellant's wife, what the appellant had done to her was in 2006 (on the same day that the appellant's wife witnessed the incident where the appellant had his hand on Lisa's breast). She said that this was a communication to Lisa that the appellant had "done the same thing" to her, but that she did not give Lisa any further details. 51As to what had occurred on that occasion, Kay recalled that one morning before school she had been told, by her brother and by Lisa's sister, that her parents were having a "massive fight". She said that the appellant's wife then took her aside and said "What happened to you happened to [Lisa]". Kay said that she "knew what that meant straightaway. She didn't have to explain to me at all". As it was not suggested that the appellant's wife had told Kay what she had actually witnessed, if this is the correct order of events this can only logically be understood as being that Kay made an assumption that what the appellant's wife was referring to as having happened to Lisa was touching of the kind that Kay alleges had happened to her (inappropriate touching or, to be more precise having regard to her evidence in connection with the trial, rubbing on the outside of her vagina). 52Kay said that she went to Lisa's room and said to her "The same thing happened to me" so that Lisa would know that she was not alone. Kay said that what she meant by that was that the appellant had abused her as well. She accepted that at that point she did not know specifically what had happened to Lisa. At some point later that day when she and Lisa were together, probably in a bedroom, Kay said that Lisa told her that the appellant had put his mouth on her breast and had asked if she liked it. 53Kay's evidence was that the appellant's wife told her that the appellant had said he was going to call the police but that she had asked him not to do so. The appellant's wife denied this. 54A few days after this, following an argument about an unrelated matter, Kay, Lisa and Lisa's sister went to Mary's place. Kay said that some of the foster children had decided to run away from home and she went with them. Kay's evidence was that when the appellant came to take them back home, she told Mary, in the presence of Lisa, that the appellant had molested both herself and Lisa. She said that she did not tell Mary the details and that Lisa said nothing. Mary in essence corroborated that evidence. So did Lisa, who said that this was the first time that she had heard the word "molested". The appellant said that he recalled an argument and that Kay had shouted something at him but could not recall what. 55Mary then asked two pastors from her church to come to the house but neither Kay nor Lisa made any disclosure to them about the alleged abuse. 56The children remained at Mary's place for a few days. There was a family meeting there, attended by the appellant, his wife, Mary, Paul, Nora, Kay and Lisa. I will refer in due course to the versions of what was said or discussed at this meeting. Relevantly, however, the appellant accepts that the topics for discussion included what was in the best interests of the children and that he had apologised for the matter having come to the stage of a family meeting. 57Among other things, Kay said that in the course of that meeting the appellant's wife said that if the children moved back home a big door would be put over a void in the staircase and locked at night so the appellant could not come up to the children's rooms in the evening. That evidence was consistent with the evidence given by Mary and Paul as to what occurred in the family meeting (i.e., the reference being made to locks being placed on the doors of the children's rooms) and by Lisa's evidence to the police, as well as the evidence of the appellant himself, to which I will refer shortly. The appellant's wife recalled some discussion about locks on doors but dismissed this as something that was not serious ("tongue in cheek"). 58Tellingly, the discussion about putting locks on doors was part of discussion as to a family agreement as to what was to take place if the children were to return to the appellant's and his wife's home. The appellant referred to this as a discussion about "protocols", although later correspondence to DOCS referred to these as "structures". Further, the appellant recalled that one of the protocols was that he was not to go to the children's rooms and that his wife was to know where he was at all times. Such a protocol is not consistent with the appellant's wife's denial that any offences had been committed and it supports a conclusion that the family members had no trust in the appellant's conduct. It also supports a conclusion that Kay was truthful in her evidence that the incidents with Lisa were not the first occasion when the appellant had engaged in sexual abuse of this kind. 59The only other occasion on which there was reference to any discussion between Lisa and Kay as to the appellant's conduct towards Lisa, prior to the trial, was in evidence given by Kay during the voir dire hearing that, at a country musical festival in Tamworth, she had had a conversation with Lisa about the appellant's conduct. However, Kay said that this was not about what had happened; rather that Lisa had said that she was upset about it. 60Kay left home in about February 2009 for vocational training. She gave evidence that in about June 2009, before a trip she was taking to America, she had a conversation with the appellant in which he said that he was worried about what Lisa might say or do; that he was sorry for what he had done; that he had asked for God's forgiveness and believed he had been forgiven; and then asked for Kay's forgiveness. The appellant denied this conversation. The reference to supplication to God for forgiveness is relevant in light of the evidence that Kay was a person with religious faith. Indeed, she explained the delay in making complaint of the appellant's conduct to her having forgiven him. Further, the existence of concern on the part of the appellant as to disclosure by Lisa (though denied by him) would be consistent with Lisa's evidence that she had on various occasions held the appellant's conduct over him.

[12]

Voir dire hearing 70As has been noted earlier, the appellant was initially charged only with the conduct relating to Jane. A pre-trial voir dire hearing was held in February 2012 before Finnane DCJ in the context of an issue that had arisen as to access to documents that had been sought under a Crown subpoena to DOCS, in circumstances where the Crown submitted that if certain of the subpoenaed materials did not fall within the category of protected communications then they might need to be tendered by the Crown as relevant to inculpation or exculpation. Ultimately, no such material was tendered in the trial and nothing turns on this. 71However, at the voir dire hearing, issues were also raised as to the admissibility of evidence the subject of two tendency notices that had been issued by the Crown pursuant to s 97 of the Evidence Act 1995 (NSW), the first in relation to tendency on the part of the appellant, the second in relation to tendency on the part of his wife. 72As to the appellant, the tendency sought to be proved included his tendency: 2(a) To have a sexual interest in girls aged between 8-13 (b) To sexually and indecently assault young girls who were in his care until they reached puberty (c) To use his position of authority as a foster father in order to gain access to young girl's [sic] for the purpose of sexually and indecently assaulting them 73As to the appellant's wife, the tendency sought to be proved by the Crown included a tendency to dissuade, discourage and deter young girls who were in her care, and who complained about sexual abuse by the appellant, from telling other persons about the abuse or reporting it to authorities. 74Evidence was called at the voir dire hearing from each of Jane and Kay, as well as from Lisa, Mary, Paul and the appellant's wife. The trial advocate explained to Finnane DCJ that this was in the context of testing the reasonable possibility of contamination and concoction between the complainants. 75Following the disclosure by Kay, in the course of that evidence, of details (hitherto unforthcoming) of the alleged sexual abuse by the appellant towards her, the Crown obtained leave to serve amended tendency notices and sought leave to present an amended indictment which contained the additional count of aggravated indecent assault on Kay. 76Finnane DCJ gave judgment on the admissibility of the tendency evidence on 2 May 2012. In summary, his Honour did not permit the Crown to call evidence directed to showing tendency as claimed on the part of the appellant's wife. However, his Honour did permit evidence to be adduced from each of Jane, Kay and Lisa as tendency evidence going to the tendency sought to be established on the part of the appellant. 77His Honour (at [27]-[30]) addressed the submission of Counsel for the appellant that there was evidence of concoction. His Honour expressed the opinion that it was now doubtful that the Hoch principle (derived from Hoch v The Queen [1998] HCA 50; (1988) 165 CLR 292) (that propensity evidence should be rejected if there is a reasonable possibility of concoction) still stood, having regard to ss 97, 98 and 101 of the Evidence Act. His Honour considered that it was not necessary to determine that issue, being content to follow the reasoning of Hodgson JA in BP v R; R v BP [2010] NSWCCA 303 (at [106]-[111]). 78His Honour concluded (at [31]) that there was no real chance of contamination of the evidence of the tendency witnesses, noting that most of the complaints were in vague terms and that the mere fact of complaints being made, afforded no basis for concluding that there was a real chance of concoction, as opposed to a merely speculative basis for concoction. Indeed, his Honour went further (at [32]) and expressed the opinion that there was nothing at all in the evidence that raised "even vaguely" the possibility of concoction. (In the present proceedings, the appellant contends for the opposite conclusion.) 79His Honour went on to note (at [32]) a submission by Counsel for the appellant that the tendency evidence should not be permitted because it lacked probative value and its prejudicial effect outweighed the probative value. His Honour stated (at [33]) that the correct application of the principles to which he had referred resulted in the admission of the evidence, concluding that it was "strong evidence of the tendency of the accused to commit sexual offences against girls under the age of 12" and that "in no way would it create impermissible prejudice against the accused, when correct explanations [sic] of the evidence is given by the trial judge" (my emphasis). 80While expressed briefly, there is nothing to suggest that his Honour did not have regard to and address the correct test for the admission of tendency evidence (as is implicit from his stated conclusions at [33]) and no complaint is now made as to the test applied by his Honour. 81Nor, on the present application, is any complaint made as to the content or adequacy of the directions ultimately given by the trial judge (Lakatos DCJ) at the trial as to the context or tendency evidence or as to the trial judge's refusal during the course of the trial to withdraw the tendency evidence from the jury. 82The agreed statement of facts as to how and when the appellant had committed the offences, which the Crown said constituted admissions by the appellant, was admitted by consent at the trial on the basis that Lisa was going to be called in any event. 83The appellant's complaint is as to the admission of the evidence in the first place, which it is contended caused irreparable prejudice to the appellant by making it "almost impossible" for the jury to regard him as a credible or reliable witness. In that regard, principal emphasis is placed on the evidence put to the jury of the appellant's plea of guilty to the offences against Lisa and the admission of the facts as to those offences.

[14]

Grounds 1-6: Tendency Evidence 86The basis on which it is contended that Finnane DCJ erred in the admission of the tendency evidence to prove each of the respective counts against the appellant is broadly the same and therefore it is convenient to deal with them together. For completeness, however, I note that the risk of contamination/concoction is particularly pressed in relation to ground 4 and that ground 6 focuses on the probative weight of the two earlier uncharged incidents of which Kay gave evidence. The five grounds of appeal pressed in relation to the tendency evidence are as follows: Ground 1: The tendency evidence of Lisa was improperly admitted to prove counts one to six on the indictment (relating to the offences against Jane) Ground 3: The tendency evidence of Kay was improperly admitted to prove counts one to six on the indictment (relating to the offences against Jane) Ground 4: The tendency evidence of Lisa was improperly admitted to prove count seven on the indictment (relating to the offence against Kay) Ground 5: The tendency evidence of Jane was improperly admitted to prove count seven on the indictment (relating to the offence against Kay) Ground 6: The evidence of Kay of the two earlier (uncharged) incidents involving allegations of indecent assaults by the appellant were of insufficient probative value to be relied upon as tendency evidence 87Broadly, the complaint by the appellant as to the admission of the tendency evidence is that his Honour erred in concluding that the probative value of that evidence substantially outweighed any prejudicial effect its admission might have on the appellant. It is submitted that the probative value of the evidence was diminished having regard, first, to the sequence of events (referred to as the temporal nature of the tendency) and, second, to the differences between the acts of which complaint was made. It is further submitted that the prejudicial nature of the evidence (particularly that the appellant had pleaded guilty to the offences against Lisa) was high.

[15]

Temporal nature of the tendency evidence 88As noted, the conduct admitted by the appellant against Lisa occurred in 2005 to 2006, whereas the conduct complained of by Kay was in 2003 and the conduct complained of by Jane was over the period between 1989 and 1993. 89The appellant accepts that, where acts are sequential and occur in a confined time period, evidence of tendency can be probative. The complaint made here, however, is that the acts in question did not occur within a confined time and, in particular, that the tendency evidence included acts subsequent to those that had been charged. Hence it is submitted that the probative weight of that evidence was less than if the acts relied on as tendency had been prior to that of the relevant counts. 90The appellant argues that, in the case of subsequent acts, there might be an explanation for conduct to manifest itself at a particular (later) time (such as, in his case, his depression in 2002/2003) such that it could not be reasoned from that particular behaviour, even if it revealed a tendency, that the tendency had been present or had been acted upon at an earlier time. 91Of course, on the count relating to conduct against Kay, part of the tendency evidence relied upon was of earlier conduct (being the conduct towards Jane and the earlier uncharged acts of which Kay gave evidence). Hence, the focus of the complaint as to admission of evidence of subsequent sexual conduct in relation to count 7 focuses largely on the evidence adduced in relation to the admitted conduct against Lisa. 92Principally, the argument put for the appellant was that the process of reasoning in which the jury was invited to engage, by the use of the tendency evidence relating to the admitted conduct in relation to Lisa, was impermissible, requiring it to assume the existence of the claimed tendency at an earlier time, so as then to conclude on the basis of assumed, not proven, facts that the appellant was guilty of the earlier offences as charged. 93The appellant argues that, when the question of admissibility of the tendency evidence was considered by Finnane DCJ, its sequential nature was not looked at. In this regard, the Crown accepts that the focus of the voir dire hearing was the issue of contamination or concoction of the tendency evidence but nevertheless submits that Finnane DCJ must also have had regard to the issue of contemporaneity in coming to the conclusion that the evidence was of strong probative value and that its prejudicial effect would be overcome by appropriate directions as to its use. Certainly, the cross-examination of the respective witnesses would have made clear to his Honour the chronological sequence of the events that were the subject of the tendency evidence. 94The Crown's case at trial was that the sequential nature of the assaults supported the conclusion that the appellant had a tendency sexually to exploit his relationship with young girls of a particular age range whose family circumstances were such that each was unsupported and vulnerable, and who had been placed in his foster care; that tendency being to use each in a sexual way at a particular stage of the girl's development. Hence it is submitted that the temporal gap did not weaken the probative value of the tendency evidence (referring to R v SK; SK v R [2011] NSWCCA 292). 95The appellant relies on R v Dann [2000] NSWCCA 185 and R v Thomas Douglas Watkins [2005] NSWCCA 164 as support for the proposition that conduct of the appellant at a later time could not be relied upon to reason that a tendency revealed by that conduct existed much earlier and hence had less probative value than evidence of earlier conduct would have had.

[17]

R v Beserick 98In Beserick, there were two separate trials involving two different complainants against the one appellant. The first trial was for one count of indecent assault but evidence was also led of three to four years of subsequent sexual activity of an increasingly serious nature. The second trial related to two particular incidents but evidence was also led as to at least ten subsequent occasions when sexual activity had occurred. Hunt CJ at CL said (at 523) that: ...In general, the weight to be afforded to subsequent sexual activity will be less than that afforded to previous sexual activity, hence the proper exercise of discretion will more readily favour the admission of evidence of the previous rather than the subsequent kind. (emphasis per original) 99At 525, his Honour said: It could not usually be said that the evidence of subsequent sexual activity is relevant in order to place in its proper context the evidence of the earlier activity upon which the offence charged is based. I am not prepared to say that it could never be relevant for that purpose, but the cases in which it would be relevant for that purpose must surely be unusual ones. (emphasis per original) 100His Honour also noted at 521-522 that remoteness of other sexual activity from the time of the offence charged went to the weight of the evidence and considered it to be a matter of commonsense that weight to be afforded to subsequent sexual activity would be less than that afforded to previous sexual activity. There, his Honour was addressing the admissibility of evidence going to the existence of a "guilty passion" or sexual feeling or desire between the appellant and the complainants. His Honour accepted that regard might be had to subsequent behaviour in order to indicate a state of mind existing at an earlier time (referring, inter alia, to Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 265; Simpson v Robinson (1848) 12 QB 511 at 513; 116 ER 959 at 960). 101In Dann, Heydon JA (as his Honour then was), with whom Spigelman CJ and James J concurred, concluded that the probative value of the evidence of the later uncharged acts was slight, noting what had been said in Beserick. There were, however, a number of factors to which his Honour referred (at [36]) in Dann as rendering of slight weight the probative value of the evidence, not just the fact that the incidents in question were later in time. His Honour noted that the evidence as to the later incidents was "vague in time and particularity in every respect" and that, so far as they were particular, the details were "conflicting and unconvincing to a degree". 102His Honour commented on the strange way in which the stepson's evidence of the first of the later incidents had ended (with a wholly non-responsive answer) and the bizarre character of the second incident; and compared the very brief way in which evidence of the later incidents had been given with the more detailed evidence of the incidents with which the appellant had been charged. His Honour also noted that the fact that the evidence was tendered only as giving a context or background meant that it had to meet less rigorous tests than those created by s 97 and that its probative value was correspondingly less. 103His Honour concluded, at [37], that the evidence ought to have been rejected, saying that: ... Its low probative value was exceeded by the unfairness caused by a multiplication of questionably established discreditable instances. Though the jury were warned not to use the evidence as tendency evidence, only as relationship evidence, the distinction is difficult to grasp at the best of times. The vagueness of the evidence, particularly as to date, made it prejudicial in the sense that it was difficult for the accused to respond to it except by a denial. (my emphasis) 104Here, the evidence of the admitted conduct against Lisa did not have the bizarre character of that in Dann, nor could it be said to be vague or unconvincing insofar as it comprised conduct admitted by the appellant himself. Criticism is made by the appellant of the reliability of both Jane and Kay's evidence (to which I refer in due course). Nevertheless, that evidence did not suffer from the same difficulties as the context evidence in Dann. Even though there was inconsistency in the evidence as to the time the conduct complained of by Jane and Kay took place, there was sufficient particularity as to the place of the conduct and other matters placing the conduct in a temporal context to make it possible for the appellant to respond to it otherwise than by a mere denial. 105Though the appellant had admitted his conduct against Lisa, it was still necessary for the jury to consider whether it was satisfied that such conduct established a tendency, as contended for by the Crown, and whether, if so, this was capable of establishing that one or both of Jane and Kay was truthful in her allegations; i.e., that the jury was satisfied beyond reasonable doubt that any such tendency existed at an earlier time and that the appellant had acted upon it as alleged. The Crown contended that it could, because of the high likelihood that such a sexual preference would manifest in similar circumstances between the various complainants and hence that, if the appellant behaved in a particular way with one girl, he was likely to have behaved earlier in the same way with the other girls. 106To the extent that this involves an assessment as to the likelihood that the conduct towards Lisa was an isolated instance (or set of incidents) or the first time that the appellant had acted on any tendency that the jury was satisfied was established by that conduct, the jury would be expected to approach this having regard to all of the other evidence before it, including any evidence that might suggest a particular explanation for the tendency only to have manifested itself at a late stage in the appellant's family life (such as the evidence that emerged of his treatment for depression in around 2002/2003). 107I note that the appellant's evidence was that he did not know why he had committed the acts against Lisa. His only explanation was that "[i]t was a lack of judgment at the time" and, later, that at the time he was "deeply depressed". This is despite the fact that the appellant accepted that in a statement dated 16 October 2009 which he had given to the police and to DOCS (in which he acknowledged that "about 3 years ago [he] inappropriately touched" Lisa) he had said: "[w]hen I examined my behaviour I believe that it was prompted by feelings of a need for closeness". At the trial, the appellant agreed that his feelings at the time were of closeness to Lisa. 108The jury was able to take that evidence into account as well as the explanations proffered by the appellant's wife for that conduct in her 2009 letter to DOCS, to which I will refer shortly, when determining whether a tendency had been established of the kind the Crown contended the appellant had.

[18]

R v Thomas Douglas Watkins 109In Watkins, the appellant was found guilty of offences relating to the deposit by him to the credit of his own bank account company cheques with intent to cheat and defraud the company. He was the financial administrator and accountant of the company, with responsibility for the preparation of cheques for the payment of creditors' accounts. He did not have authority to sign the cheques. The defence case was that the appellant had written the cheques in question with the approval of the company on the basis that he had been instructed to pay a single cheque into his own account and then disburse amounts from that account for the payment of individual creditors. 110The tendency evidence on which the Crown there relied included the appellant's conduct in earlier defrauding another company (by which he had been employed) by drawing cheques to cash. In that case, he was one authorised signatory and got the signature of the second authorised signatory by representing that the cheques were required urgently and the other signatory signed in good faith and the cheques were drawn by someone else using a printer and paid out to cash; whereas in the later case he was not an authorised signatory, the cheques were drawn to himself and handwritten by him. There was also a dissimilarity in the manner in which the proceeds of the stolen moneys had been used. The earlier frauds had occurred in 1983 and 1984; the later ones in 1999 to 2002. There was evidence of the appellant's reputation and good conduct in the intervening period. 111Barr J accepted (at [33]) that if a person is proved to have stolen money from one employer 37 times over a year, misleading other employees by his lies, he might be understood to have a tendency to cheat and defraud his employer and said that, no doubt, a person in whom such a tendency is established might be expected to retain that tendency for some time "especially if he continues to occupy a similar position ... and has similar duties". His Honour also noted that people do reform and considered that the fact that there was no dishonest act asserted between 1984 and 1999, coupled with the fact that the appellant had pleaded guilty and returned all the money stolen from the employer in 1983/4, "might have thrown doubt on the continuation of his tendency for a period as long as fifteen years". 112At [35], his Honour said that there was no logical connection between the events of 1983/4 and the later events; and that the only way in which the jury could have used tendency evidence was to reason that he was a cheat and a fraud and therefore more likely to have cheated and defrauded his later employer. At [36], Barr J noted that the jury could only so reason if the appellant had retained such tendency as was demonstrated by the earlier events and that critical to that question was the passage of fifteen years without asserted blemish. His Honour noted that the trial judge had failed to refer to the argument by Counsel for the accused that this affected the probative value of the evidence and that the failure to refer to this argument and to the passage of time suggested that those matters were overlooked. 113As to the balancing of probative value against prejudicial effect, Barr J noted at [49] that the difficulty about the evidence was the risk to which it gave rise that the jury would be overwhelmed by the knowledge that the appellant had been convicted of a series of frauds on a previous employer and would refuse to contemplate the appellant's defence to the similar charges before them. His Honour said at [50]: It seems to me that there was a real danger that the jury's recognition of the appellant's prior guilt was likely to divert them from a proper consideration of the evidence as bearing on the question of his intent in the charges before them. The difficulty of obviating that risk had to be taken into account in assessing the likely prejudicial effect of the evidence. 114Ultimately, his Honour concluded at [51] that the probative value of the evidence was bound to be heavily qualified and weighed that against the serious risk of prejudice and the difficulty of removing it by direction to the jury. His Honour considered that it was not open to the trial judge to conclude that the probative value of the evidence substantially outweighed any prejudicial effect on the appellant and that the evidence ought not to have been admitted. 115In the present case, there was a reasonable similarity in the circumstances of the respective acts in that they took place in the family home, when the complainants were in bed (either at night or in the morning) and the acts involved touching and feeling the complainants' breasts and/or genital area. Certainly, there were difference as between the particular sexual acts, to which I will refer shortly, but the conduct as a whole had greater similarity than the different acts relied upon in Watkins. 116It was not the case, as adverted to in Watkins, that there had been a 15 year period with no asserted misconduct. Rather, it was a case where the gap in time between asserted acts of misconduct was explicable having regard to the relative ages of the complainants and their sequential placement in the appellant's care. 117Thus the lack of misconduct in the intervening periods does not (as it did in Watkins) assist the appellant, given the absence of another foster daughter in the relevant age range during much of that 14 year period between the conduct against Jane and that against Kay.

[20]

R v SK 122Reliance was placed by the Crown on the approach in this Court in R v SK. There, Latham J, with whom Giles JA and Rothman J agreed (the latter expressing additional comments as to the distinction between tendency and coincidence evidence), considered that the lapse of time between the alleged assaults on the respective complainants in that case (occurring over a lengthy period between 1980 and 2003) was a powerful factor in reasoning towards the commission of the offences charged. The offences comprised sexual assaults by the complainants' uncle; the sexual activity occurred in the appellant's home during regular family gatherings; and the Crown case was that the appellant relied upon social visits to his home by members of his extended family in order to obtain access to young children. It was alleged that the appellant commenced assaulting each complainant at or about the age of 6 or 7 and ceased assaulting them about the age of 13, once the children reached an age when the appellant could no longer exercise influence over them or they commenced to assert themselves. 123At [26], her Honour concluded that "[f]ar from depriving the evidence of its capacity for probative value, the temporal gaps are an integral part of the appellant's underlying pattern of behaviour". So it is in the present case. 124The Crown case was, in effect, that the tendency evidence demonstrated a pattern of behaviour on the part of the appellant in relation to young girls in his care, whereby he abused them sequentially while they were in a particular age range and then either lost interest in them or events occurred that caused him to cease his abuse of them. While, in the case of Jane, it might be inferred that the appellant lost interest in her once she reached a particular stage of development; in the case of both Kay and Lisa, there seems to have been an obvious reason for the appellant to have ceased abuse (namely, the notification to DOCS in 2003 - in the case of Kay - notwithstanding that this did not result in further action at the time, and, in the case of Lisa, the witnessing by his wife of the last incident with Lisa and disclosure by Lisa, leading to the 2007 family meeting and subsequent notification by Lisa to DOCS).

[21]

Conclusion as to effect, on probative value of the tendency evidence, of temporal gap between the events 125As to the tendency evidence tendered in relation to the count involving Kay, in my opinion it was not an invitation to engage in an impermissible process of reasoning for the jury to be asked to conclude that, if the jury were satisfied that the admitted conduct towards Lisa in 2005-2006 established beyond reasonable doubt the tendency claimed by the Crown (a matter of which the trial judge made clear it was for the jury to be satisfied), then it was likely that the appellant had a similar tendency or state of mind a mere 2-3 years' earlier (when the incident of which Kay complained was said to have occurred) and hence that the jury should have the requisite level of satisfaction that Kay's complaint was made truthfully, taking into account for that purpose the other evidence relevant on that issue. 126As a matter of commonsense, when considering the import of the admitted conduct towards Lisa, there were at least two contradictory possibilities: that the conduct in 2005/2006 was the commencement of an isolated series of events precipitated by a particular attraction to Lisa (or some other factor) or that the conduct in 2005/2006 was the manifestation of a tendency that the appellant had at an earlier time (on which he may or may not have acted at that earlier time). 127If the jury were satisfied beyond reasonable doubt of the conduct against Jane, then that could also reasonably be taken into account in the jury's assessment of whether Kay's complaint was truthful, since it would provide evidence of a tendency (consistent with that evidenced by the conduct against Lisa) on which the appellant had been prepared to act at that earlier stage. 128As to the tendency evidence tendered in relation to the counts involving Jane, even accepting that the weight of the much later conduct admitted against Lisa was lessened by the passage of time between those events, the jury also had before it the evidence of conduct against Kay which (if the jury found beyond reasonable doubt was established) would strengthen the conclusion that Jane's complaints of similar conduct were established. 129The evidence of subsequent admitted conduct against Lisa was not something that could be dismissed as not having significant probative value. It did not suffer from the deficiencies of the evidence of subsequent sexual activity in Dann; nor was it so removed in a factual or temporal context from the earlier acts as in Watkins, particularly given that in the present case (whichever version of Kay's disclosure in 2003 were to be accepted) it could not be said that there had been no asserted acts of inappropriate sexual misconduct in the intervening period between the conduct against Jane and the conduct against Lisa. The same conclusions follow in relation to the tendency evidence of Kay. In relation to the evidence of Jane as tendency evidence in relation to the count involving Kay, the submission based on the temporal gap was, in effect, conceded to have less force, since this was prior sexual activity albeit not within a confined time period. 130Given that the gaps between the respective assaults were explicable if the tendency was, as the Crown contended, one that related to girls of a particular age range, having regard to the sequential placement of the girls into the appellant's care, this was precisely the kind of evidence that in SK the Court accepted could be relevant and of probative value.

[22]

Difference in nature of the acts 131The second factor that is said by the appellant to have diminished the probative value of the tendency evidence is the difference in the particular acts relied on by the Crown to establish tendency. The appellant accepts that the Hoch test does not apply as a matter of strict exclusion but submits that the less similar the acts the less probative they are as tendency evidence. 132The differences to which the appellant points are the age at which the appellant commenced, and/or ceased, to act upon the alleged sexual interest in his foster daughters and the particular behaviour of which complaint was made. 133As to the first, namely, the differences in the age of the respective complainants at the time of the alleged offences, Jane's evidence (though inconsistent in parts) was that she was 9 years' old when the alleged offences commenced and that the conduct "eased off'' as she reached puberty, ceasing when she was 14 years' old; whereas the acts against Kay and Lisa did not commence until each was 11 or 12 years' old (by which time, at least in Lisa's case, she had then reached puberty). 134In the case of Kay, her recollection was that at the time of the first (uncharged) incident, the conduct felt "familiar" to her, which leaves open the possibility that the time of commencement of the abuse may have been at a younger age. In the case of Jane, if the appellant's criticism of the reliability of Jane's memory as to her age, at the time the alleged offences commenced has force, then she would have been much closer in age to the other complainants when the abuse commenced. There may not, therefore, be as marked a difference in the age of the complainants at the time of the alleged conduct as the appellant suggests. 135In any event, in the case of each of the complainants, the alleged (or in the case of Lisa, admitted) conduct either commenced or continued while she was around 11-12 years' old. By 11-12 years' old, each was at, or approaching, puberty. This is not a case where there is such a dissimilarity in the ages of the complainants, at the time the conduct commenced, as to deprive the evidence of significant probative value. Similarly, little can be drawn from the ages at which the conduct ceased, since there were commonsense explanations for the conduct against Kay and Lisa to have ceased when it did (and perhaps at a time earlier than might otherwise have been the case), there being in each case an incident that drew attention within the family to untoward conduct on the part of the appellant (and, in the case of Kay, a formal notification to DOCS), that might well be expected to have had an effect on curbing the appellant's behaviour in relation to each of the complainants at the respective times in question. 136As to the second matter raised, namely the type of behaviour alleged, the appellant raises three points of difference. 137Apart from the difference in the ages of the complainants at the time of the alleged offences, to which I have referred above, the appellant points to the absence of complaint as to grooming behaviour towards Lisa or Kay, unlike the "tickle fights" in relation to Jane. However, all three of the complainants at some point in their evidence made reference to tickling behaviour in connection with the abuse. In Lisa's police interview, she referred to the appellant tickling her, saying that "...he'd just tickle me. He'd just start tickling me or something and then he'd just put his hands under my shirt and just touch my breasts". Kay's evidence of the second (uncharged) incident was that it also commenced by tickling on the part of the appellant (albeit tickling of her back at her request). Therefore, tickling was an aspect about the appellant's conduct towards each of the complainants and the absence of evidence of "tickle fights" as grooming behaviour in advance of the commencement of the later abuse is not a significant difference. The appellant conceded that he had tickled children in the family, though denying that he had done so inappropriately. 138Further, the appellant points to the fact that Lisa and Kay (unlike Jane) did not claim to have been subjected to digital penetration and to the difference between the appellant's admitted conduct in relation to Lisa (touching and placing his mouth on Lisa's breasts) whereas Kay denied that he had ever touched her breasts. 139There were certainly differences in the particular acts of which the respective complainants gave evidence, the most marked of which was the lack of digital penetration of two of the three complainants and the fact that the appellant was not said to have placed his mouth on the breast (or any other part of the body) of two of the three complainants. What is common to all of the counts is that there was inappropriate touching of some kind of the body, in Jane's case her breasts and her vagina; in Kay's case her vagina, but not breasts; and in Lisa's case her breasts and vagina. (It should be noted that the appellant denied touching Lisa's vagina but in the agreed facts the appellant admitted to having placed his hand on top of her vagina and having kept his hand on her "pull-ups" for some time before removing it). 140Furthermore, other than the unproven count involving Jane, each of the acts took place in a bed (and, in all but the first uncharged incident involving Kay, in the child's own bed); most of the incidents happened at night; and both Kay and Lisa referred to incidents occurring on nights when the appellant came to their bedroom after returning from Lions Club meetings. 141The differences in question were clearly matters to be taken into account in the assessment of the complainants' evidence but in my opinion they did not significantly reduce the probative value of the tendency evidence in light of the overwhelming similarity in the circumstances in which the acts occurred. 142In R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75, Beazley JA, as her Honour then was (with whom Buddin J and Barr AJ agreed) said (at [79]) "[t]he authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour", there contrasting the position with coincidence evidence. In that case, the evidence sought to be relied upon, which her Honour accepted was capable of rationally affecting the assessment of the probability that the accused had engaged in the conduct alleged and had a sexual interest in so doing, was of conduct towards students who were boarders and who were vulnerable because they were homesick or did not fit in with the normal pattern of school life in various ways. Her Honour considered that the evidence had significant probative value in the determination of the question whether the individual allegations should be accepted. 143Similarly, in the present case, the tendency evidence (if accepted by the jury) would demonstrate that the appellant had a tendency sexually to abuse young girls who were vulnerable in the sense that they had been removed from troubled households and placed in his and his wife's foster care. The differences in the particular acts complained of by the respective complainants do not diminish the significant probative value of their evidence.

[23]

Contamination/concoction 144In relation to the admission of Lisa's evidence as tendency evidence to prove the conduct complained of by Kay, it is further submitted by the appellant that the probative value of that evidence was diminished because there was a real chance of concoction or contamination in relation to Kay's evidence, as a result of her communications and relationship with Lisa (a matter also relied upon in relation to the unreasonable verdict ground of appeal in relation to count 7). 145The appellant points to the following: that Kay and Lisa shared the same house from 1994 to 2008, which included a period of at least 2 years after the disclosure by Lisa; that Kay admitted having had conversations with Lisa at the time of the incident involving Lisa in 2007, when Kay said to Lisa, in effect, that she had also been abused and when Lisa (either at the same time or in a later conversation that day) disclosed some detail of the abuse that had occurred to her (namely, that the appellant "put his mouth on my boob and asked me if I liked it"); and that Kay also admitted having had a later conversation with Lisa about the conduct (although Kay said that they had not discussed what had happened but just that Lisa was upset about it). This is said not only to demonstrate the relationship between the complainants and opportunity for contamination or concoction of their evidence but also to provide evidence of the making of actual disclosures. 146The appellant contends that the inconsistencies in Kay's evidence as to what was in fact disclosed by her to Lisa point to a real risk of contamination of the evidence. 147First, the appellant places significance on the difference in the order in which Kay put the sequence of her statement to Lisa (that the appellant had done the same thing to her too) and Lisa's statement to her (that the appellant had put his mouth on her breast and asked if she liked it). At the voir dire hearing, Kay said that when the appellant's wife told her, in effect, that the appellant had done to Lisa what he had done to her she had immediately gone to Lisa and said "that happened to me too". That statement was not put as having been a response to Lisa's disclosure that the appellant had put his mouth on her breast. It was put to Kay in cross-examination that this was inconsistent with her police statement (where the "that happened to me too" statement followed Lisa's disclosure) and that Kay had reversed the sequence of those statements in order to avoid the inconsistency arising from her denial that the appellant had touched her breasts. 148The appellant also points to the inconsistency between Kay's statement that Lisa had told her the appellant "asked me if I liked it" and Lisa's evidence that she could not understand anything the appellant had said to her during his abuse of her. 149As to the 'reversal' of the order in which the disclosures were made between Kay and Lisa on that particular day in 2007, Kay was cross-examined at the trial as to the difference between the two versions. It is apparent from the transcript that she did not understand what was suggested to be the significance of the order of the statements, which dispels the notion that this was something done in order to overcome a recognition by Kay of inconsistency between her police statement and her later evidence. Moreover, there is no obvious reason for Kay to have concocted a version of events involving the touching of her vagina if what had occurred was a touching of her breasts. 150There is no incongruity in Kay's statement (that her father had done the same thing to her preceding a statement by Lisa as to what he had done to her) if, as Kay alleges, she had just been told by the appellant's wife that what had happened to her had also happened to Lisa. No doubt Kay would have concluded from that at the least that Lisa had been inappropriately touched. It is by no means apparent that she would necessarily have focussed on where on her body Lisa had been touched. Even if the order of the respective statements was as set out in the police statement version of events, a statement that "he did that to me too" could have been intended, and taken as, no more than a reference to inappropriate touching of the body. 151Indeed, the difference between the conduct admitted to having taken place against Lisa (involving touching her breasts) and the conduct complained of by Kay (involving touching only her vagina) tells against contamination or concoction of Kay's evidence by reference to any disclosure made by Lisa to her. Further, Kay's immediate reaction to this disclosure is consistent with Kay having been subjected in 2003 to more than an inadvertent contact by the appellant. 152As to the evidence by Lisa as to whether the appellant had said anything intelligible to her during the events in question, the significance of the inconsistency between this and Kay's account of the disclosure in 2007 relates to the fact that Kay's complaint as to the first specific incident she recalled was that her father had asked whether she liked what he was doing. 153While Lisa was unable to recall, in her police interview, what the appellant had said to her while committing the offences, she gave varying responses that indicated that her father had said things to her but that she did not know if she could understand what he had said or if she had just blocked it out and that his voice "just made me sick" and she referred to the appellant "crooning to me like he'd talk to a baby or something". This raises the possibility that, some years closer to the event and in a context where Lisa was not under the pressure of the later police interview, Lisa may have recalled at least that the appellant had said something of this kind to her and had told Kay this. There is also the possibility that Kay's recollection of the disclosure by Lisa to her was affected by Kay's memory of what the appellant had said during the earlier incident involving Kay. What it cannot suggest, if Lisa was in fact unable at any time to recall anything intelligible said to her by the appellant during the admitted conduct against her, is that Kay's recollection of the earlier event was contaminated by a disclosure that on this hypothesis Lisa could not have made. 154Kay's evidence, accepted by Finnane DCJ on the voir dire, was that she had not disclosed to Lisa the detail of the appellant's misconduct. This was consistent with Lisa's evidence. Both Lisa and Kay were cross-examined as to this issue in the voir dire hearing. Taken together with: first, the sparsity of the detail of abuse about which Kay was forthcoming when disclosing to Mary in 2007, in the presence of Lisa, that the appellant had molested both Lisa and herself; second, the silence of Lisa at the subsequent family meeting; and, third, the differences in the accounts given by each of Kay and Lisa as to what happened to them, the inconsistency to which the appellant points as to whether the appellant had said anything during the abuse of Lisa does not in my opinion demonstrate a real risk of contamination or concoction of Kay's evidence by reference to anything Lisa said to her. 155Third, the appellant points to Lisa's evidence that Kay had disclosed to her that the abuse to Kay had started in year seven and had happened "a couple of times" as well as her evidence that, on the day Kay found out (about the incident with Lisa) "she sat down with [the appellant's wife] and told her all the times it had happened and how many times" but that when Kay first told the appellant's wife she said it had only happened once. It is suggested that this demonstrates further communications between Kay and Lisa since Kay's evidence at trial was that she had only told Lisa that the same thing had happened to her too. 156From a review of the transcript of Lisa's interview with the police, it seems that the main thing that Lisa recalled of the disclosure to her (on the day of the 2006 incident involving Lisa) was that Kay had run into the caravan. Lisa's other answers as to what Kay had told the appellant's wife read as someone making assumptions as to what was said. They do not disclose a real risk of contamination of the evidence in this respect. It was not suggested that Lisa was present on those occasions and Kay herself was unable to recall more than three specific incidents at the time of trial. There is no suggestion by Kay that she had disclosed more incidents to the appellant's wife on the day she had locked herself in the "caravan". None of this points to any specific detail being exchanged by Kay and Lisa as to the acts that had occurred. 157In summary, the appellant submits that the matters referred to above demonstrate that there was not only a relationship between the complainants and the opportunity for contamination of their evidence but also that there were actual exchanges of information, such as to point to a real risk of concoction or contamination of Kay's evidence. The appellant further suggests that there was motive (presumably for concoction of the evidence by Kay) on the basis that Kay was estranged from the appellant at the time she gave her first particularised complaint on the voir dire before Finnane DCJ. It was not, however, put to Kay that her evidence had been motivated by animosity towards the appellant and, indeed, Kay's explanation for delay in making the complaint was that she had forgiven the appellant (and it was accepted by the appellant that Kay was a person of religious faith, which makes such an explanation more credible). 158There is no doubt that there was opportunity for contamination of evidence; however, both Kay and Lisa were adamant that no detail was exchanged between the two as to the particular conduct of which Kay later gave details. As already noted, when the disclosure was made to Mary in 2007, Mary's evidence was that Kay said no more than that the appellant had taken something from them and had "molested" them both (and that Lisa had said nothing at all on that occasion). As to the relationship between the two, Kay's evidence at the voir dire was that the two had not been that close and that the subsequent discussion at the music festival was as to how Lisa still was upset about the incident, not what had happened. 159The question of contamination or concoction of evidence was explored at length on the voir dire hearing. The inconsistencies to which the appellant now points in the evidence of Kay and Lisa as to the content of the disclosure(s) made by Kay and Lisa to each other were explored also in detail at the trial. There was not, in my opinion, shown to be such a risk of contamination or concoction of Kay's evidence, as to lessen its probative value to the degree that it could not be said to be significant.

[24]

Earlier uncharged acts 160As to ground 6, it is submitted that, in considering whether to admit the evidence of the two earlier incidents complained of by Kay for a tendency purpose, it was incumbent on the Court to consider whether those incidents had been proven beyond a reasonable doubt. As authority for this proposition, the appellant refers to DJV v R [2008] NSWCA 272; (2008) 200 A Crim R 206 at [30]. The appellant notes that this was not an issue argued before Finnane DCJ. 161In DJV, McClellan CJ at CL, with whom Hidden and Fullerton JJ agreed, considered an appeal from conviction on two counts of sexual offences relating to the appellant's daughter. The Crown had led evidence from the complainant of other sexual misconduct by her father. Although tendency notices were initially served, the evidence was ultimately led as relationship or context evidence. The appellant complained that the admission of that evidence resulted in an unfair trial and contended that the trial judge had misdirected the jury on the use to be made of the evidence. 162At [30], McClellan CJ at CL confirmed that in sexual assault cases the appropriate standard of proof of tendency evidence was the beyond reasonable doubt standard, saying: The need for care in identifying the basis upon which the evidence is admitted, either tendency or context, must be emphasised. In HML, Gummow, Kirby, Hayne and Kiefel JJ state (see Hayne at [247]) that where evidence is tendered to prove a propensity, being the sexual interest of an accused in a complainant, the jury must be told that they must be satisfied of that interest beyond reasonable doubt ... there referring to HML v R [2008] HCA 16; (2008) 235 CLR 334. 163The appellant submits that evidence of the earlier uncharged incidents should not have been admitted because they could not have occurred at the time that Kay says they did (the first being when the appellant's wife was in hospital and the second shortly after the first in bedroom 2). That is because, on the agreed statement of facts, the appellant's wife did not receive any treatment from any hospital until 2000 and, by then, Kay had not occupied the bedroom in which the second incident was said to have occurred for 2 or 3 years (having moved to bedroom 5 when Lisa arrived in 1997). 164The inconsistency between the time at which it was accepted that Kay occupied bedroom 2 (1994-1997) and the times at which she placed the earlier incidents (by reference to the hospitalisation of the appellant's wife, which was agreed was not until 2000) was not a matter explored at the time of the voir dire hearing. At that time, Kay stated that she was not sure which bedroom she occupied at the time of the earlier incidents, only that it was in a different bed to the bed in which count 7 occurred. 165The appellant's wife was unsure at exactly what age Kay had occupied bedroom 2. Moreover, the appellant said he had a "vague recollection" of Kay coming into his room one night, which gave some credence to Kay's recollection of the first uncharged incident occurring when she had gone to the appellant's bed. 166Uncertainty as to the dates on which the earlier incidents occurred was not something that necessarily raised sufficient doubt as to whether the incidents had occurred so as to preclude reliance on them as tendency evidence by a jury properly instructed as to the need for them to be satisfied beyond reasonable doubt as to those acts. It could have been explained by a mistake as to the timing of one or other of those incidents that did not reflect adversely on Kay's credit. 167There was in my opinion no error in a conclusion that the evidence of the uncharged earlier incidents was of significant probative value.

[25]

Prejudicial effect 168The above discussion has addressed whether the matters raised by the appellant demonstrate that the tendency evidence had diminished probative value. I have concluded that they do not and that, to the contrary, the tendency evidence had significant probative value. Its admission, therefore, depended on whether it substantially outweighed any prejudicial effect flowing therefrom. 169Clearly, there was a risk that the tendency evidence would have a prejudicial effect on the appellant. As noted by Latham J in R v SK, there is a generic prejudice inherent in tendency evidence, namely, that a jury will conclude that a person with an established tendency will yield to the tendency whenever the opportunity arises (at [28]) (see also R v AH, citing Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 488). There, however, her Honour also noted that it had not been suggested that the jury might use the tendency evidence in any way logically unconnected with the issue in the trial, as to whether the appellant had committed the assaults against each complainant. The same comment may be made in the present case. 170As earlier noted, the appellant submits that in this case, there was a particular prejudice to him because of the plea of guilty in relation to the offences against Lisa. It is submitted that this made it almost impossible for the appellant to be accepted as a credible, reliable person (because of the smear over his head arising from his admission of guilt in relation to those charges). The appellant submits that this is illustrated by the emphasis placed by the Crown in closing submissions on the plea of guilty in the context of the submission that he was not a credible witness, in saying: ... I suggested to him a number of times when I was cross-examining him that he was pretending not to remember very important conversations and that he was telling lies about certain things and I say that those lies and those things that he was pretending not to remember go to his credibility. You would disregard him as a witness without credibility. Why do I say that? Because at the very beginning of his evidence, I suggested he had the sexual interest in the children. He sexually and indecently abused girls in his care and he used his position of foster father in order to gain access to them. He denied those things, one, two three. He had to deny those things because if he admitted those things, you would think he had the sexual interest and therefore he committed the acts upon [Jane] and [Kay]. His problem was he has already admitted what he did to [Lisa]. The Crown then reminded the jury that at trial the appellant had admitted only to placing his mouth on one breast (inconsistently with the agreed facts) and had denied other matters admitted in the agreed facts. 171True it is that the admission of the appellant's guilt was there used to illustrate the lack of credibility of the accused. However, it was not the fact that the appellant had pleaded guilty to the particular offences against Lisa that the Crown was suggesting made him not a credible witness. Rather, the submission was that the appellant's denial (of having a sexual interest in children; having sexually and indecently abused girls in his care; and having used his position as a foster father to gain access to them) at the outset of the cross-examination was inconsistent with the admission that he had committed the acts upon Lisa to which he pleaded guilty (and hence that his denial of the alleged tendency was not credible). At least insofar as the appellant's conduct against Lisa established one or more of those propositions, then clearly the appellant's denial could not be credible. The appellant could, of course, have denied one or all of them as a general proposition, on the basis that the conduct against Lisa was an isolated act and perhaps denied a sexual interest in young girls, on the basis that there was some other explanation for his conduct against Lisa. However, that is not the point. What the Crown was there inviting the jury to conclude was that the appellant's denial of those (and other matters) was not credible, not that the guilty plea of itself meant that he had no credibility. 172Before tendency evidence can be relied upon at all, the jury must be satisfied beyond reasonable doubt that the acts in question did occur and that, taken with all the evidence, they established the relevant tendency. All that the evidence of the appellant's admissions as to his conduct towards Lisa did was to remove from the jury the need to consider whether they were satisfied beyond reasonable doubt that the particular events the subject of the offences involving Lisa had occurred (not whether they were satisfied beyond reasonable doubt that they established a tendency on the part of the appellant nor whether the existence of such a tendency in 2005/2006, taken into account with all the other evidence, enabled them to be satisfied beyond reasonable doubt that the allegations by one or both of Kay and Lisa had been proven). 173The evidence of the guilty plea in respect of Lisa was not, in my opinion, evidence the admission of which was potentially so prejudicial as substantially to outweigh its probative value. Therefore, there was no error in the admission of that evidence in the trial relating to the complaints by Kay and Lisa. 174The very differences in the conduct the subject of the various complaints and the temporal gap between the offences against Lisa (matters relied upon by the appellant to argue that the probative value of the evidence was diminished) are matters that tend against any conclusion that the plea of guilty would so smear the appellant as to deprive him of any credibility such that a properly directed jury could not be expected to be capable of properly assessing that tendency evidence. 175As I will discuss in the context of grounds 7-8, it seems likely that the real damage to the appellant's credibility came from the fact that, in the witness box, he appeared to resile from the admissions that he had made as to the conduct against Lisa. 176As Beazley JA said in R v PWD (at [90]), when considering whether the probative value of tendency evidence substantially outweighs its prejudicial effect, the Court is entitled to take into account that juries are to be properly directed as to the use to which such evidence is to be put. The admission as to conduct the subject of particular offences in 2005/2006 was not in my opinion such as to make it impossible for the appellant to be accepted as a credible witness in relation to other alleged offences involving different complainants at different times, particularly where there were differences (to which the appellant pointed) as to the precise nature and circumstances of the alleged conduct. 177In relation to the other evidence relied on as tendency evidence (i.e., evidence of Jane in relation to the count involving Kay and vice versa), the appellant conceded that the submission that was made as to the potential prejudicial effect of the plea of guilty could not be made with the same force. In my opinion, the strong probative value of that evidence substantially outweighed the potential prejudice having regard to the expectation that any prejudice arising from the nature of the tendency evidence could be adequately dealt with by appropriate directions from the trial judge.

[26]

Conclusion 178In summary, having regard to the reasons set out above, my conclusions as to the particular grounds of appeal in relation to the tendency evidence are as follows. 179As to grounds 1 and 4, his Honour did not err in concluding that the tendency evidence of Lisa was of significant probative value in the assessment of whether the appellant had committed the offences charged against each of Jane and Kay. There was no suggestion of any real risk of contamination of Jane's evidence by reference to the evidence of Lisa; and the evidence of Kay and Lisa did not support a conclusion that the evidence of Kay had been contaminated by the latter. The temporal gap between the respective offences, while much greater in the case of the complaint by Jane, did not weaken the probative value of Lisa's evidence to such an extent that its probative value did not substantially outweigh the prejudicial effect of that evidence. The prejudicial effect was not more than the ordinary prejudice that flows from the nature of tendency evidence and was capable of being addressed by an appropriate jury direction. Grounds 1 and 4 are not made out. 180As to ground 6, there was sufficient probative value in the evidence by Kay of the two earlier uncharged incidents for them to be capable of being relied upon as tendency evidence and hence ground 6 is not made out. As to ground 3, I reach the same conclusion as to the probative force of Kay's evidence substantially outweighing its prejudicial effect as that reached in relation to Lisa's evidence. I note that the temporal gap between the acts complained of by Kay and those complained of by Jane is somewhat less than the temporal gap between the acts relating to Lisa/Jane. Further, the arguments relied upon by the appellant as to the irreparable prejudice from the fact of the guilty plea do not apply to the tendency evidence of Kay. Grounds 3 and 6 are not made out. 181As to ground 5, the complaint as to reliance on subsequent activity does not apply in relation to this ground, since the evidence of Jane was in relation to acts prior to those complained of by Kay. Nor does the particular emphasis placed on the guilty plea in relation to Lisa have any application to this ground of appeal. I see no error by Finnane DCJ in concluding that the evidence of Jane had significant probative value in the determination of whether the appellant committed the offence charged in count 7 of the indictment and that its probative value substantially outweighed the ordinary prejudicial effect attendant upon admission of tendency evidence. Ground 5 is not made out. 182I am satisfied that the tendency evidence as a whole had significant probative value and that it substantially outweighed its potential prejudicial effect. There was no error established in the ruling by Finnane DCJ that that evidence was admissible.

[27]

Grounds 7-8 - unreasonable verdict grounds 183Turning to the unreasonable verdict grounds of appeal, the Crown made reference to the test set out in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493, as to whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; and to what was said in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at 623-624 [58] as to the application of that test in the context of s 6(1) of the Criminal Appeal Act 1912 (NSW). 184Section 6(1) of that Act provides that: The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 185In SKA v The Queen [2011] HCA 13, (2011) 243 CLR 400, the High Court (French CJ, Gummow and Kiefel JJ (Heydon and Crennan JJ dissenting)) confirmed that what is required in such a case, applying the test set down in M and restated in MFA, is that the Court make an independent assessment of the evidence both as to its sufficiency and quality ([14]) in order to determine "whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged" ([21]). 186Their Honours made it clear that it was necessary for the appellate court to make an independent assessment of the evidence, weighing the competing evidence, but that, having done so, the task that the appellate court was required to perform was that of concluding whether "it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant".

[29]

Appellant's evidence 188As a general observation, the appellant's evidence can be characterised as a mixture of blanket denials and an inability to recall events or conversations. While it is not surprising that the appellant could not remember the exact dates when people came and went, it is surprising that when it came to critical matters, such as what was said at the 2007 family meeting (at which he accepts there was discussion as to what was in the best interests of the children) and what was said at the consultation with Dr Rewais in 2003, he was unable to recall almost anything. 189For example, the appellant could not remember whether there was a discussion with his wife about the incident with Kay on the day Kay locked herself in the caravan but thought there probably was; he could not remember how long after the incident the decision was made to take Kay to see a psychiatrist; he thought he probably discussed it with his own psychiatrist, but could not remember what was discussed. 190As to Kay's consultations with Dr Rewais, the appellant admitted that on the first occasion he attended and went in with Kay, but could not remember any detail of the conversation; could not remember anything about the visits. He could not remember when there was "mention" that Dr Rewais was going to make a notification to DOCS but said that there was mention of that and that he was not happy and that was not the reason that they had taken Kay along to that particular psychiatrist. 191It beggars belief that such events would not have left an imprint on his memory, since they followed from disclosure of conduct that in Lisa's case involved him touching her naked breast and in Kay's case involved a formal notification to DOCS of conduct that involved, on his own admission, reaching under Kay's clothes and touching (though he says inadvertently) her breast. 192Similarly, the appellant could not recall anything said at the time in 2007 that he went to Mary's house to pick up Kay and Lisa after they had run away to Mary's house, just that "there was words going backwards and forwards". He said that the girls had decided to stay at Mary's for 3 or 4 days. He could not remember the discussion at the subsequent family meeting, but remembered being there. When asked the topics discussed, he said: I think locks on doors was discussed. I don't know whether that was of any great import. We certainly didn't carry through with that. I'm just trying to remember. There was lots of toings and froings about how the family would be affected in one way or another but I honestly can't remember ... Well, we were trying to work out what was in the best interests of the children. 193The appellant's explanation for his inability to recall events or conversations was put variously as being that there had been many dramas in his time as a foster father (and hence the events in question were just another day in the life of this foster family) and that he suffered from depression and that had caused memory lapses. 194Second, the appellant's evidence is remarkable for the fact that he could give no explanation for his admitted conduct against Lisa, though denying that he had a sexual interest in young girls. He did not suggest, as his wife maintained, that the incident she witnessed was one of inadvertent touching or of covering up an exposed breast. The admission that he had placed his mouth on Lisa's breast (even once, though in the agreed facts he admitted doing it twice) defies explanation as anything other than a sexual act and one that the appellant must have known was highly inappropriate and serious misconduct. 195Third, the appellant's responses in cross-examination reveal a tendency to become confrontational with the cross-examiner, which may have been a result of stress or frustration with the cross-examination. So, for example, the appellant said that he was telling the truth "and you don't like to hear it"; on one occasion he informed the trial judge that he was "having difficulty with how much never ever this lady [the trial advocate] understands"; and said that the questions "are getting so far weird, to be quite honest". 196The appellant took issue in cross-examination when answers that he had given in chief were put to him again, for example, as to his statement that Jane had wanted desperately to be adopted ("by hook or by crook"). In cross-examination, he said he did not know how desperate she was and then when his earlier answer was put to him said "Well, if that's what I said, yes" and "if you've got the transcript there, yes, probably true". 197More significant, is the appellant's attempt to resile from the admitted facts of his conduct towards Lisa. The circumstances in which this occurred were that, as noted earlier, at the commencement of his cross-examination, the appellant denied a sexual interest in girls between 8 and 13 and that he was willing to act on that attraction; denied that he sexually and indecently assaulted young girls in his care and denied that he used his position of authority as a foster father to gain access to young girls for that purpose. A global denial to that effect was inconsistent with his admission as to the conduct committed against Lisa. It might be that the appellant could argue that he had not committed those acts because of a sexual interest in young girls in general (i.e., that he had only had such an interest in Lisa), but that is not what the appellant said. 198Insofar as the appellant was there denying a sexual interest or attraction to Lisa, that is not credible having regard to the nature of his admitted conduct towards Lisa. Not surprisingly, therefore, the appellant was immediately confronted with his admissions in relation to the conduct against Lisa. His response to those questions seriously diminished his credibility in my opinion. 199The appellant said that he had admitted the indecent assault against Lisa to minimise the damage to his family so that they did not have to come to court. When asked why he had indecently assaulted Lisa, the appellant's response was that he did not know. When asked what he had done to her he said: A. I touched her breasts, according to my statement of admissions (my emphasis) 200When asked what he meant by that answer, he gave the following evidence: A. You drafted it. I signed it and when the trial advocate pointed out that she had not drafted it, he said: A. Well one of your fellow henchmen in the DPP drafted it 201That bespeaks little contrition or recognition on the part of the appellant as to the seriousness of the offences to which he had already pleaded guilty. More than once, when asked whether he admitted the facts set out in his signed document, the appellant said words to the effect that they were the facts he had admitted, or "well, whatever it says" or "that's what it says here". This can only fairly be read as an attempt by the appellant to distance himself from that conduct. That became apparent when the appellant was questioned as to the second time he had put his mouth on Lisa's breast: Q. After some time you removed your mouth from that breast and then you again placed your mouth on her breast, didn't you? A. That's what it says here. Q. That's what you did, isn't it? A. That's what I admitted on this statement but, no, it didn't happen; but I can't go beyond what's written here. If I've got to tell his Honour exactly what happened, that's what happened. Q. What happened? A. Nothing. The second time. ... A. I did it once; not twice. 202The appellant conceded that he had signed the document and that the document said that he had twice put his mouth on Lisa's breast. Asked if that was what he had admitted to the magistrate, the appellant said he did not know "without seeing the transcript". 203The appellant said that he could not remember any incident when he went into Lisa's bedroom after he came home from a Lions Club meeting, lifted her body up and placed his hands under her clothing and onto her breasts (though this was precisely the conduct described in the third of the counts to which he had pleaded guilty) and said: A. I know what it says. I'm not superhuman. How can I lift a person of 11 years of age up like it says? But I did sign the paper. Yes, I did. The appellant said more than once that he had signed the document but that he could not remember the incident; and then said he did not do anything and did not do what the signed agreement said he had done. 204The appellant's attempt to resile from what he had agreed in the statement is relevant for a number of reasons. Apart from the glaring inconsistency with his admission that he had signed the document and that he had admitted to having done those things, his assertion that he could not recall an incident that he had previously (in such a serious context as the plea of guilty to the charges then before him) admitted suggests that caution should be exercised before placing reliance on other instances where he said at the trial that he was unable to recall things. 205The suggestion that it was physically impossible for him to have done what he had earlier admitted doing to Lisa, is echoed in his assertion at the trial that it was physically impossible for him to have done what Jane said he had done (fondling his penis while kneeling or standing against her bed) and casts doubt on how much weight can be placed on that assertion. Similarly, the evidence given by him as to the particular penile condition from which he suffered over the period (and which he appeared to rely upon in support of his denial that he had been fondling his penis or pleasuring himself while engaged in the conduct towards Jane - i.e., his evidence that he tried not to have an erection because it was very painful might be seen as another attempt to suggest physical impossibility as a way of denying the offences). 206His evidence (supported by his wife) that he was having sexual relations with his wife during the time of the events in question and his evidence that he was capable of becoming aroused and achieving an erection in that time sits at odds with the suggestion that it was unlikely for him to have fondled himself while engaging in the conduct of which Jane complained. (The evidence of continuing sexual relations with his wife is also inconsistent with Paul's evidence that during the family meeting, the appellant's wife said that they could not blame the appellant as he had not had sexual relations for some time.) 207There was also evidence to suggest that at least in 2009, the appellant had attempted to blame Lisa for his conduct. The appellant at trial said that the person who had prepared the report before he was dealt with by the magistrate (for sentencing on the Lisa offences) had "grabbed the wrong end of the stick" and that he had been "flabbergasted" when whatever it was had suddenly "came out as fact", though there was no suggestion that he had corrected this at the time. He also admitted that he had told the person preparing the pre-sentencing report that Lisa had done something that had influenced his behaviour at the time of the offence but refused to say what that was because he said that he had been misrepresented and had "got caned for it" and that it was unfair to Lisa. He denied that he had been trying to cast blame on Lisa and said: I was asked to be honest. I could have said lots of other things and, in retrospect, maybe I should have. Being honest doesn't get you anywhere, in this Court or any other. 208The appellant remembered that Kay had locked herself in the caravan; could not remember trying to get into the caravan; remembered speaking to her; did not think that he had asked if she had called his wife; then said he could not recall what had happened that day; denied that it was a day that led to him seeing a psychiatrist; did not recall having said anything about it to Dr Rewais. His recollection of the incident was vague as to what Kay was wearing or anything further than that she was lying in her bed to one side. He could not remember exactly what he said to his wife; he said that day was "one more day in the life - if you've ever been a foster-father - and that's unlikely [presumably because the trial advocate was female] ... you have many traumas over many days, you can't recall them all. I do not recall what went on that day in full". 209He agreed that he would have discussed the incident with his wife at the time. He could not recall what had been said to him by his wife. He had a vague recollection of going to see Dr Rewais but could not remember what the conversation was or much about the visit and did not recall being angry or the conversation as to Dr Rewais having to notify DOCS. He suggested that his memory had gone because he suffered from depression. He did not recall his wife being angry "but I guess she would have been". 210The appellant said that Kay needed counselling because "she was upset and she wasn't doing what she should have been doing". He had a vague recollection that Dr Rewais said that Kay should receive further counselling but agreed that he had not organised for any further counselling. 211The appellant said it was his wife who said she was going to speak to Ms McKenzie but that he did not attend the meeting with DOCS. He said that he was not particularly interested to know what had gone on there and that it had never entered his mind that DOCS would investigate and report his conduct or that there would be a police investigation. 212As to the incident when his wife witnessed him with Lisa, the appellant said his recollection was pretty hazy; he agreed that his wife was "not happy"; he could not recall if there was an argument or words passing between he and his wife on the day; he said that Lisa was not crying; and kept saying that he did not recall what had happened on the day. He accepted it was "a significant day" but said it was one of "many, many, many, that we've had in our family". He could not recall if he had given his wife any reasons as to why he indecently assaulted Lisa. 213As to the meeting with Kay and Lisa where Kay said that she said what about what you've taken from us, he could not recall her saying that although he recalled her shouting something as he went out the door. He could not recall being exceptionally concerned. He referred to "the saga of looking after these four difficult children". 214As to the family meeting, again he had little recollection of the conversations but said that it was to work out what was in the best interests of the children. He did not remember much of the conversations; he recalled that the children wanted locks on their doors. He remembered being "sorry that it had come to a meeting where everybody was involved" but apart from that he could not remember. 215The appellant agreed that there was a discussion with his wife about putting structures or process in place, and that: I recall there was discussions about how we could continue with the children being happy to live there, yes, as far as I understand, but what particular structures or what particular things, I can't recall 216Taken to what his wife had written in the letter she prepared for DOCS: Because we realised that the children would be removed from our care and that no good for the children could ever come out of reporting the matter, we as a family decided that we could manage the behaviour ourselves by putting a lot of structures in place to ensure that nothing of this nature could ever happen again the appellant said that he would call them "protocols" but he did not recall discussions with his wife about not reporting the matter to the authorities "in particular detail", just that "the authorities" was one of the things mentioned at the family meeting "and the ramifications on the children". 217In his letter to DOCS, the appellant agreed that he had referred to the family meeting and had said that: It was decided that the interests of [Lisa and her sister], and our other children who were minors at the time, would be best protected by not making a disclosure to the police or DOCS at that time, as we knew all the children would be removed from the family. ... Her [the appellant's wife's] only motive was to ensure and preserve the ongoing family structure and security for our family and the children in it, and put structures in place to ensure the safety of the children [by which the appellant said he meant "So that they could feel safe in our house"] 218The appellant said that the whole family at the family meeting had decided this but that he did not remember taking part in the conversations. The letter was written at the time of the disclosure by Lisa to the police. The appellant said that he could not remember all of the "protocols" but that one was not to go into the children's rooms and the other was for his wife to know where he was at all times. 219The appellant accepted that there was concern that the children would be removed from his and his wife's care if DOCS was involved but could not recall whether his wife had talked to him about it. 220The appellant said that a document had been prepared (he believed by Mary and Lisa or Lisa and Kay) that was a contract agreed upon between he, his wife and the girls that included things about him not going into their rooms and things about the girls' behaviour but he could not recall details of any other things. 221The conclusion that it was reasonably open to the jury to draw (and that I would draw from a review of the appellant's evidence as a whole), is that the appellant was having difficulty recognising, or acknowledging, the seriousness of his behaviour against Lisa; that he was not prepared to accept responsibility for his actions against her; and that this cast doubt on the credibility of the denials/inability to recall matters relevant to whether the earlier offences had been committed. I deal later with the particular aspects of his evidence on the topics on which the appellant asserts that Jane and/or Kay's evidence was unreliable.

[30]

Evidence of the appellant's wife 222As a general comment on the evidence of the appellant's wife, she maintained adamantly that her husband had committed no offences; she appeared consistently to have made excuses for him and to have minimised or failed to appreciate the seriousness of conduct witnessed by her and to which he had admitted; and there were numerous matters as to which she professed to have no recollection. The appellant's wife said on at least two occasions that she had no idea about dates or that dates did not mean anything to her. 223It was open to the jury to infer (and on the evidence I would infer) that the appellant's wife was attempting to protect her husband from the consequences of his actions. Clearly, this was the view reached by the trial judge. 224For example, the appellant's wife supported his evidence that she had always waited up for him and was awake when he returned from Lions Club meetings and that this was the case every fortnight for 21 years. However, when pressed, the appellant's wife said that she would not guarantee that there were not occasions when she might have fallen asleep in her bed waiting for her husband to come home but that "when I heard him come in that front door I would have been awake". 225The appellant's wife, denying Jane's account of the disclosure, said that she had an "average temper" and that she could be "verbally angry; verbally outspoken" but did not think she had a particularly high anger problem. She said that she did not recall ever being angry with Jane (but did recall being angry with Lisa). 226More significant in my opinion is the inconsistency between the version of events given by the appellant's wife in relation to the consultation with Dr Rewais and that of the psychiatrist himself (who had the benefit of contemporaneous notes). 227The appellant's wife said that she had not made the arrangements for Kay to see Dr Rewais and that she only attended with her once. She denied having misled the Court at the pre-trial hearing as to the identity or location of the psychiatrist and said that she did not recall how the appointment was made. She did not recall her husband actually being in the meeting on 30 July with Dr Rewais. She insisted that she did not recall the conversation and did not recall Kay being upset and crying or that she was concerned. She did not recall that Dr Rewais had said at the first meeting that he would have to notify DOCS. 228She did not deny being upset at the suggestion that DOCS should be introduced into any procedure but said that was because she felt it did not warrant what was suggested. She did not recall that Dr Rewais had strongly suggested more counselling, then said that she believed that Kay had counselling at school but was unable to give any details about this and it is clear that this was no more than an assumption. She denied that she had taken Kay to see Dr Rewais because she thought she needed counselling but said that she had "issues that needed to be dealt with" (namely her husband taking the cat away and touching Kay's breasts). 229In my opinion, the most significant evidence demonstrating the attitude of the appellant's wife was her attempt to downplay the incident when she walked into Lisa's room and saw her husband with his hand on her breast. Her account as to this was that: ... he was waking [Lisa] and he - I walked in on him and he had put his hand on her breast ... [Lisa] was going to a sports venue that day and I had said to my husband, "Will you go and wake her." It was in the morning and she needed to get up ... I was still in bed and he was ready for work and he went - left my bedroom and went to wake her up. I remembered something I needed to tell him on that day and I got up and followed him into that bedroom and I saw him open the Venetian blinds and he walked to her bed. He sat bedside her on the bed. She was asleep. She was laying face down looking at the window - facing towards the window with her arms above her head under her pillow and her left breast was exposed and he sat bedside her on the bed to wake her, put his hands on her back, put his hands on either side of her back and proceeded to put his left hand under her left breast and I said, "What is going on here?" [Lisa] turned over and said to me, "Hi mum," and I said, "What's going on," and she said, "He touched my breast... ... I considered it to be inappropriate. I considered it to be - what I witnessed and what I saw was an incident of - her left breast was showing underneath his - underneath her arm and he appeared to me to be covering that breast but I didn't consider it to be a particular sexual assault in as much as [Lisa] showed no particular indication of distress or the fact that it didn't seem to be an actual sexual incident. It seemed to be an incident where he covered her breast and he pushed her breast back underneath her when she was asleep. (my emphasis) ... I didn't believe it to have any sexual connotations. I believed it to be somebody who was covering something that shouldn't have been exposed 230The appellant's wife accepted that her husband had admitted his guilt in relation to Lisa but cryptically insisted that she knew a bit more about the circumstances and did not believe he had ever committed those offences. She also said she had not discussed with her husband in specific detail the offences that he had admitted. 231At the trial, it was put to the appellant's wife (and she denied) that she regarded what her husband had done to Lisa as being done out of love or that he was only trying to comfort her or that there was any "particular emotional situation attributed to that". She said that she believed it was a "spontaneous act". That was inconsistent with her handwritten letter to DOCS (to which she was then taken) in September 2009 in which she had written words to the effect that it "was done out of love, not hate. He was trying to comfort her". At first, the appellant's wife said that this was taken out of context and then sought to explain it, as a very general statement but she ultimately accepted that she had made the comments. She also said she believed her husband was under extreme stress at the time whereas in the letter to DOCS she accepted she had written that "I realised that [the appellant] was in fact sick" (at the trial she said that by that she meant he was suffering stress). 232The appellant's wife was adamant that she did not believe that there was any incident with Jane; did not believe that the incident with Kay was as Kay described; and did not believe the incident with Lisa was a sexually motivated incident. 233The appellant's wife did not recall the specifics of the discussion at the family meeting, though she said that she did not recall being the one who spoke much at all. She "categorically" denied that she had said words to the effect that her husband could not be blamed, as they had not had sexual relations for a long time but then accepted that there might have been something mentioned about her sexual relations with her husband, but said she had no recollection of what was said except that it was not that. She denied that she had said the girls had flirted with him; or that she had said that he would go to gaol for a long time or that she would kill herself. Paul's evidence was to the contrary on those matters. Paul gave evidence that the appellant's wife was making excuses and was defensive; that she said that they had not had a sexual relationship for a long time; that the girls had led him on; that she would probably kill herself if it came out; that he would be locked away; and that it was going to tear the family apart. An expression of the last concern is consistent with what Dr Rewais recalled the appellant's wife as having said and with the text of the letters to DOCS explaining why no disclosure had been made at that stage. It is also consistent with Kay's evidence that the appellant's wife had told her that the other children were too old to be placed elsewhere (by way of discouraging disclosure by her). 234The appellant's wife remembered a discussion about a number of different options, such as separating and dividing the house but she said that the suggestion that there be locks on the doors was tongue in cheek. 235The appellant's wife recalled that her husband had apologised for what he had done to the girls and said that it was an apology to both Kay and Lisa but in Kay's case she did not accept that this was an apology of anything other than the inadvertent touching on the appellant's version of events. 236In summary, both the appellant and his wife professed a singular lack of recollection of events that must have had a significant impact on them at the time. That must have cast serious doubt on their credibility.

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Verdicts on counts 1-6 (involving conduct against Jane) 237The appellant submits that a review of Jane's evidence shows that it was unreliable and that she lied. 238In particular, it is submitted that the unreliability of Jane's memory is demonstrated by: the assertion (said by the appellant not to accord with common experience) by Jane that her memory had been repressed and that she had recovered some memories in the period since her initial police statement in 2010 (such as the swimming incident); her comment to Mary in 2009 that she had thought that she might be dreaming; and Jane's reliance, when giving evidence at the trial, on her earlier statements to support her memory. 239As to the doubt cast on the reliability of Jane's memory, the explanation given by Jane for the fact that further matters were raised by her after she gave her initial police statement is one that on its face is not so implausible as to have been incapable of acceptance by the jury. 240Similarly, little weight can be placed on Jane's comment to Mary in 2009 that she had thought she might be dreaming, since that could be understood as indicating that she had had certain recollections that she had dismissed on the basis that she must have been dreaming but now appreciated were actual memories. It does not suggest that Jane's memory was so unreliable that her evidence could not support the findings made by the jury. 241As to the reliance by Jane, when giving evidence, on what she had said in her earlier statements to support her memory, a review of the transcript of Jane's evidence (bearing in mind the recognised limitations on any review of the record of the trial), reveals that Jane expressed considerable confusion throughout her cross-examination as to what she was being asked and she did give inconsistent answers on points of detail, particularly when pressed as to matters where it was put to her that her earlier statements were inconsistent with agreed facts (such as the date at which she had been placed in the appellant's foster care) or where she was challenged as to the completeness of evidence given by her or inconsistency between her evidence in chief and her evidence in cross-examination (such as the cross-examination in which it was pointed out that she had said, after giving evidence of the third incident, that that was all she recalled and it was put to her that she had previously given evidence as to two other incidents - the fourth and fifth incidents). 242The impression I gained from reading the transcript of her evidence at the trial was that her responses in cross-examination were at times defensive and emotional. However, this is again a matter where there is a natural limitation when reviewing the transcript, since the jury had the advantage of seeing her give evidence and hence forming an assessment as to whether that was due to her nervousness or stress or was an indication that she was dishonest or unreliable in the giving of her evidence. 243With those general observations in mind, I turn to the particular aspects of the evidence that the appellant relies upon as demonstrating that the verdicts were unreasonable and not supported by the evidence.

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Age at which offences occurred 244An essential element of the first three counts was the age at which the offences occurred (i.e., under 10). 245At the trial, Jane was cross-examined on the inconsistency between her first statement to police (in which she said that at least two years had passed between commencing living with the appellant's family and the first incident of sexual abuse comprising count 1) and the allegation that she was 9 years' old when the offence occurred, since it was an agreed fact that Jane was 8¾ years' old when she commenced living with the appellant and his wife. In that first statement, Jane had said that she was 7 years' old when she commenced living with the appellant and his wife. 246The appellant submits that, taking into account Jane's evidence that the tickle fights preceded the sexual abuse, and her evidence as to when the tickle fights commenced, Jane cannot have been 9 years' old (but must have been 11¾ years' old) at the time she said that the conduct the subject of counts 1-3 occurred. 247The appellant points to Jane's agreement that she could not recall how old she was at the time when the abuse commenced without checking her police statement and that she could not be sure how old she was when she was in bedroom 2, where the conduct alleged in counts 1-5 occurred. 248Jane's evidence was that she moved into bedroom 2 some time after she arrived at the appellant's house. The appellant and his wife each gave evidence that this was some time around 3, 4 or 5 months after she arrived in the household (the appellant said that Jane was in bedroom 4 for "3 or 4 maybe 5 months" after she arrived and then was in bedroom 2). Bedroom 2 was next to that of the appellant and his wife. There was some difference as between Jane and the appellant/appellant's wife as to whether there were two pink bunk beds or a single bed there when Jane first moved into that bedroom. 249Having regard to the agreed fact as to her age when she arrived at the house, Jane must have been around 9 years' old when she first occupied bedroom 2. That means that there was a period of at least 8 months and perhaps as long as 11 months when, on Jane's account of the occurrence of the incidents, she was under 10 years' old. 250Jane's evidence at the hearing, when first asked, was that she could not recall "this moment" how old she was when the tickle fights began; she said that she was "roughly nine" when something happened to her in bedroom 2 but was not 100% sure of her age for that bedroom". On cross-examination, she said that she was about 9 years' old when they were playing the tickle fight game and that it continued for a period of time but she could not give an answer as to how long. She said that it had been "months at least" after her arrival at the appellant's house that the game had started; and she was not positive as to whether the tickle fights had ended before the appellant started coming into her room. 251Jane was then taken to what she had said in her initial police statement, namely that she had gone into the appellant and his wife's care when she was 7 in 1987 and that the appellant did not interfere with her with respect to count 1 until she was 9 years' old. The age there given for her placement in the household was accepted as being incorrect. 252It was put to her that what she had indicated in her statement was that it was at least two years between the time that she went to live with the appellant and the commencement of the abuse. If her evidence as to her age when the charged abuse started is measured from the erroneous belief that she was 7 when she came to the appellant's house, and it started two years after the foster care commenced then it follows logically that Jane would have been somewhere around 10¾ when the incident the subject of count 1 began. Jane said at the trial that she did not believe it was as long as two years that had passed before the first count and said that it was a maximum of a year between going to live with the appellant and his wife and the first occasion of abuse. 253Jane accepted that in her initial police statement there was no mention about the tickle fights and that she had told the police about those in her statement in September 2011. In that statement, she said that the tickle fights began between the ages of 8 and 9. At trial, she said that they began within a year of being placed there. A series of questions was then put to her based on different assumptions as to what age she was and when the tickle fights had begun. With no disrespect to Counsel conducting the cross-examination, it is understandable that the witness was confused in circumstances where some of the questioning was as to whether she had given particular answers the previous day and the questions moved from answers that were as to conduct occurring "within a year" or at a maximum of one year after arrival at the house and conduct at "about" or "roughly" nine to conduct "after" nine. 254What appears to be suggested was that on the chronology that the tickle fights started about a year after she had arrived and the first count was after that then the first count could not have occurred when she was under 10. However, as the trial judge noted, Jane's evidence started with the statement that she was "about" 9 when the tickle fights were being played; it was put to her that they started "when [she] was nine, at least nine" (which was not what she had said; though she agreed with that proposition). It was later put to her that she had said the tickle fights started about a year later but she had said they started "within a year", which is not the same proposition. 255Jane appears to have been clearly confused as to whether she was being asked to admit to what she had said earlier in her evidence or as to what had occurred: Didn't you just say you suggested that to me? You're confusing - you're completely confusing me. You're not going to be able to get out of me, because I'm not sure what you're asking me. 256The line of questioning continued and led to what seems to have been complete confusion on Jane's part as to what she was being asked and what she was told she had agreed to or accepted earlier in the evidence. 257Jane's evidence was that the conduct occurred when her night light was still on (the night light being while she was 9-10 or 11, Jane saying that it had ceased at 11). The appellant and his wife gave evidence that she was being trained not to have a night light on over an 18 month period between the ages of 9 and 11. 258The appellant did not recall ever being involved in tickle fights with Jane. He said: Not that I can recall, no. I'd say never in tickle fights. I used to - we used - certainly not in the first 18 months. She was too tender, if you like, for that. She was too agitated. We were not hands off, but very careful, very wary about her actions at that stage so no I wouldn't have tickled her. I have tickled kids on occasions but inappropriately, no. 259He said in his examination in chief that he did not think he would ever have gone into Jane's bedroom in the first 18 months or 2 years that Jane was with the family because he said Jane was "too jumpy for [him] to do much". On cross-examination, when it was put to him that his wife had said there may have been occasions when her husband checked on Jane during the night, although it was usually she who did so, the appellant said "I've never said I wasn't ever in [Jane's room]. I just cannot remember doing it, and I would have no reason to be in her room". 260What the appellant there emphasised was that he had not engaged in tickle fights with Jane in the first 18 months to 2 years ("certainly not in the first 18 months"). It reads on paper as leaving open the possibility that he had engaged in tickle fights with Jane but at a later time than she had recalled. Again, in cross-examination what he said was that he could not remember having played tickle fights with her. 261There is a contrast between the appellant's inability to recall tickle fights with Jane and his adamant denial of: touching or dealing with her in a sexual way, the allegations the subject of the charged counts, ever having taken Jane surf skiing with him (the conduct the subject of count 6) and his description in cross-examination of certain of Jane's allegations as "hallucinatory". 262In all, the question whether the tickle fights took place and at what age depended on whose version of events (that of Jane and that of the appellant) was to be preferred. In circumstances where the appellant's evidence was somewhat equivocal on the topic (as compared to other of his evidence) and there was a common theme across the complainants' evidence of "tickling", it cannot be said that there was not evidence reasonably open to the jury to conclude that Jane should be believed on this aspect of the matter. 263As to the age at which the tickle fights, and the subsequent offences, took place, the appellant's submission was that Jane had no independent recollection (given the inconsistencies in her evidence on that point and the fact that she had sought to have regard to her statements to assist her recollection). 264There is no doubt, from a review of the transcript, that Jane was confused in the course of cross-examination on this aspect of the matter. Where she was consistent was that the abuse the subject of count 1 had occurred when she was about or roughly 9. The process of recollection by which she arrived at that age was not made clear - it was tested in cross-examination by reference to the time that had elapsed between her arrival and the start of the tickle fights; the duration of those fights; and whether there was an overlap between the tickle fights and the abuse. It was a matter for the jury to assess the credibility of Jane's evidence on that point and the reliability of her recollection, having regard to the matters to which their attention was drawn by Counsel for the appellant and having regard to their assessment of the credibility of the appellant in his assertion (among other things) that he had not entered Jane's bedroom at all in the first 18 months of her stay in the house. 265It was reasonably open to the jury, having regard to all of the evidence, to accept Jane's evidence (confused as she was in the course of cross-examination) that the tickle fights commenced within months of her arrival and that the abuse started no later than a year after her arrival when she was about 9. On that basis it was reasonably open to the jury to be satisfied of the age element essential to counts 1-3.

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Conduct the subject of the alleged offences 266Apart from the inconsistency as to Jane's age at the time of the alleged offences, the appellant points to inconsistencies in relation to particular aspects of Jane's evidence in relation to each of counts 1-3. 267In relation to first count, the appellant points to the fact that Jane gave evidence in chief as to the appellant rubbing his penis against the bed as he was touching her but, when asked to describe the incident in cross-examination, made no mention of this and could not exactly describe the position of the appellant at the time. I have already referred to the confusion that attended the commencement of Jane's cross-examination. There seems to have been some apparent defensiveness on the part of Jane in her answers to later questions. Insofar as Jane did not refer to the fondling when asked to recall again, in cross-examination, the first incident, the Crown points out that Jane's 2010 police statement had also included reference to the appellant rubbing his penis against the bed. 268Little weight would in my view be attached to the fact that, under the stress of cross-examination, Jane did not refer to that aspect of the incident. 269In relation to the second count, the appellant similarly points to the fact that, in cross-examination, Jane did not refer to the appellant fondling himself during the encounter. It is also noted that Jane agreed that her initial police statement did not refer to the appellant touching her breasts, fondling himself during the incident, and panting or grunting. The appellant points to contradictory answers on this aspect and as to which of her police statement or her evidence in court was the more accurate. 270As I read the transcript, and bearing in mind the natural limitations of a review of evidence by reference to the transcript alone, Jane's evidence in cross-examination was characterised by confusion as to the questions asked of her and defensiveness on her part. The jury was able to weigh the inconsistencies to which the appellant points and it was reasonably open to the jury to conclude that not much weight should be drawn from this other than that Jane was an obviously stressed witness. That is the conclusion I would draw from the transcript. 271In relation to the third count, the appellant points to inconsistent evidence as to whether the appellant was standing or kneeling while digitally penetrating her and fondling his penis. That might well be explicable by the fact that Jane was giving evidence as to what occurred when she was young and when her perception of the position of the appellant may have been influenced by his height relative to the bed. 272The appellant said that it was physically impossible for him to have done what Jane said he did. One might well think that little weight could be placed on that protestation since the appellant also maintained at one point in his cross-examination that it was impossible for him to have lifted and moved Lisa as he had earlier admitted he had done in respect of count 3 of the charges to which he pleaded guilty. Again, this is a matter on which it was reasonably open to the jury to accept Jane's account of events.

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Matters relating to each of counts 1-5 276The appellant submits that the jury's failure to reach a verdict on the sixth count can be taken into account as something that adversely affects Jane's credit, noting that Jane's friend had given contradictory evidence to that of Jane and that Jane's evidence at trial as to this incident varied from the account she had given earlier. I have not referred in detail to the evidence given by Jane's friend (or Jane's friend's mother), as to the count 6 incident. I have reviewed that evidence and it does not change my opinion that it was reasonably open to the jury to find Jane a credible witness. I am not satisfied that the discharge of the jury on this count is something from which it can be inferred that Jane was not a credible witness in relation to the other counts. There were significant differences in the conduct the subject of this count and the others involving Jane (in particular, that it was said to have occurred on a swimming trip, rather than at night in her bedroom). Hence the conclusions drawn by the jury from the tendency evidence may not have had as much impact in relation to this count. 277The appellant also challenged Jane's reliability as a witness by reference to alleged inconsistencies in her evidence as to the making of her disclosures of the appellant's conduct: first as to the alleged disclosure to the appellant's wife when she was about 12 years' old, then to the disclosure to Paul in about 2003; and finally, the disclosure in 2009 to Paul and Mary, including her explanation for the delay in making the disclosures. 278First, the appellant submits that the explanation given by Jane for the delay in the making of her complaint was either wrong or fanciful (insofar as Jane had referred to rejection by other families and thought, or said she had been told by DOCS, that this was her last chance to have a family) and points to inconsistent evidence given by Jane as to the attitude of the appellant's wife. However, both the appellant and the appellant's wife gave evidence that Jane was "desperate" to be adopted. The perception by Jane as to the rejection by other families is not inconsistent with the matching process that the appellant and his wife confirmed was undertaken by the relevant placement organisation at the time Jane was in temporary foster care. 279Therefore, the fact that Jane's explanation for the delay in complaint was her desperation to be adopted does not raise doubt as to Jane's credibility. Nor does her evidence as to the attitude of the appellant's wife towards her do so, since there was consistency in the evidence of Kay and Lisa, as well as the evidence of what was said in the family meeting by the wife (which I refer to shortly) that supports a conclusion that the appellant's wife was not supportive of complaints about the conduct of her husband and may have had anger management problems and the appellant's wife in her evidence suggested that there were difficulties in managing the respective children. 280As to the initial disclosure to Paul, there was uncertainty (as between Paul and Jane) as to when this disclosure occurred, but the accounts given by Paul and Jane were broadly consistent. The appellant points to the difference between Jane's evidence that she said no more than that the appellant and his wife abused her in that house and Paul's evidence that she said she had been touched inappropriately by the appellant. That difference is not in my view material. On Jane's evidence at trial, there was abuse by the appellant's wife at the time of the disclosure. Moreover, reading the transcript of Paul's evidence on paper, it can be seen that Paul was uncomfortable in being given any unpleasant detail of the allegations and his summary recollection of the disclosure is consistent with that. 281The appellant also notes that Paul had conceded that the 2003 disclosure did not cause him any undue concern and that he was not concerned about leaving his children alone unsupervised with the appellant. However, Paul's explanation for this was that his daughter was young at the time (she was much younger than the age at which the alleged assaults had occurred) and that it was a complaint by one person. His evidence was that he became concerned once he heard the complaints of Kay and Lisa. 282The appellant points to inconsistencies in the versions given by Jane to the police and later in her evidence in court as to her alleged disclosure to the appellant's wife (namely, as to the age she was when the incident occurred; how it started and what happened; and what happened at the end of the incident). The appellant contrasts this with the emphatic denial of the incident by the appellant's wife. Again, it is difficult to place a great deal of weight on inconsistency in the actual circumstances of the disclosure, when Jane's evidence was broadly consistent as to what had happened. 283Insofar as the appellant places weight on the emphatic denials of his wife, this suffers from the lack of credibility the appellant's wife has when her evidence is reviewed as a whole. Her evidence was marked by an almost complete inability to recall conversations relating to the events in question, including many which must, on any view of the matter, have been deeply concerning (such as what followed her witnessing the incident with Lisa and the discussion at the family meeting in 2007). 284The denial by the appellant's wife and her inability to recall matters recorded in Dr Rewais' contemporaneous notes (such as her angry reaction to the foreshadowed DOCS notification) and the alternative version she gave in relation to the foreshadowed DOCS notification was telling; as was her emphatic refusal to accept that the appellant had committed any of the offences against Lisa to which he had earlier pleaded guilty and which were agreed facts at the trial. 285Finally, as to the disclosure by Jane to Mary in 2009, the appellant points to inconsistency in Jane's evidence as to whether Jane had recalled the details of the abuse at that stage or whether the memories had not come back to her until after her first statement to the police. As adverted to earlier, Jane was cross-examined as to matters contained in her 2011 police statement that were not referred to in her earlier police statement - the description of the tickle fights and additional detail as to the second alleged incident (such as the reference to the appellant touching her breasts on that occasion, panting and grunting, and fondling his penis after he had placed his fingers in her vagina). Jane's explanation for the additional information was that memories had come back to her. 286The appellant points to Jane's evidence at trial that when she disclosed the abuse to Mary in 2009 she was "clear" about all of the incidents. It is submitted that this is in direct contradiction to her statement that memories had come back to her after the first (January 2010) police statement. However, the fact that additional details were included of the second incident in the later police statement is not inconsistent with Jane having had a memory of the incident in 2009 and later remembering further details of the incident. As to the later remembrance of the tickle fights, it is by no means clear that Jane's evidence about all of the incidents being clear in her mind at 2009 included these, since the tickle fights were not the subject of any charge. 287Reference is also made by the appellant to Mary's evidence to the effect that she had a clear recollection of Jane referring to the surf incident (the subject of the unproven count 6). It is submitted that if that was Jane's clearest memory in 2009 then it follows that she must have been even less clear at that point in time on the incidents that ultimately resulted in convictions. However, what Mary was referring to in the relevant passage of her cross-examination, was her recollection that Jane had said she had started to feel that the dreams she had been having were true. In that context, Mary said that Jane had not hesitated on the surf incident but that she had discussed that some of the other ones she had been repressing. None of that is inconsistent with Jane's evidence that they had not discussed in detail the alleged abuse on that occasion. Mary's evidence was that her own memory of that discussion was mainly as to why Jane had not confided in her before. Little can be drawn from this as to the reliability of Jane's memory of those incidents that she did not discuss in detail with Mary in 2009. 288Having considered the criticisms made of Jane's evidence as to her age when she was placed in the home and the age at which offences were committed (going to counts 1-3) and the additional matters relied upon for the appellant's submission that Jane's evidence was inherently unreliable and that she lied in her evidence, I am nevertheless of the view that it was reasonably open to the jury to accept that Jane's evidence was credible. The confusion apparent from the transcript on the part of Jane when giving her evidence and the matters to which the appellant has referred do not lead me to conclude that there was no reliable evidence to support a verdict of guilty beyond reasonable doubt as to counts 1-5 in relation to the conduct alleged towards Jane. In my opinion, Jane's confusion was understandable given the line of questioning on issues such as the issue of age. The jury heard her evidence and heard the denials of the appellant on the counts in question. It was reasonably open for them to prefer Jane's evidence to that of the appellant having regard to all of the other evidence before them.

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Verdict on count 7 - Kay 289The principal basis on which the appellant challenges the verdict on count 7 arises from Kay's evidence that the first two incidents occurred when she was occupying bedroom 2 and that both occurred either when the appellant's wife had been in hospital or shortly after. (Bedroom 5 was the scene of the last incident and had a different layout and furniture from bedroom 2.) 290The agreed facts included that the appellant's wife was treated in hospital on a number of occasions, the first being in October 2000. Kay occupied bedroom 2 from 1994 to 1997 and moved to bedroom 5 when Lisa arrived. 291The first incident (that Kay placed as being when the appellant's wife was in hospital) was said to have occurred in the appellant and his wife's bed. There is no inconsistency arising at this point from the different bedrooms occupied by Kay because it is clear on her version that the event happened in the appellant's bed. Therefore, all that might be inferred from the hospital records is the possibility that the incident occurred some 3 years earlier than Kay had recalled (which would place the incident at a time when Kay was younger and make the objective seriousness of the incident greater). 292Kay placed the second incident as occurring shortly after the first. In 2000, Kay did not occupy the bedroom where she said the second incident occurred. This is relied upon as suggesting contamination of the evidence, because bedroom 2 is where the incidents involving Lisa took place. 293Kay's evidence of the last incident (count 7) showed some continuing confusion as to the bedrooms occupied by her at different times - though she was adamant that the last incident was in a different bed. Therefore, it may be that what was revealed by this was no more than an unreliable memory as to the bedroom in which the second (and last) incidents occurred. The appellant submits by reference to the above that reliance on the first two incidents was unreliable. 294As to the evidence relating to count 7, it is submitted that of the two competing versions of the incident, Kay's was improbable (both as to the setting for the alleged abuse - a morning when other children were in the house at the time and the door was "probably open" - and as to what is said to have been the "sudden and inexplicable change in the emotional state" of Kay during the incident - a reference to the "joking manner" that Kay said she made the statement "I'll scream"). 295It is submitted that the appellant's version (that he had chastised her for having a cat in her room; that she put the cat down her pyjama top, he reached for the cat and accidentally touched her breasts; and that she reacted angrily to the intrusion of her privacy and the discipline of the appellant) was the more probable. The appellant recalled that Kay was very upset and had said he had touched her breasts; he remembered that she went to the caravan and said that he was outside working on the car. 296As to the incident with Kay, the appellant's wife agreed that Kay had telephoned her at work and that she was angry; she said that it was she, not Kay that had suggested she come home and gave details of what she said and of what she was doing at that time (preparing a meal for 24 children). She said that in the life of the family this was not a particularly big day and that they had had many dramas over kittens and animals being in the bedroom. She also said that there had been a conversation about the incident in the lounge room but she did not recall the exact conversation (other than it being about whether the appellant had a right to put his hand under her shirt to take the kitten out). 297As to which of the versions of the incident is inherently more probable, the difficulty for the appellant in arguing that the timing or setting for Kay's account is improbable is that the appellant had engaged in similar (though not identical) conduct towards a child in her bed in the morning while others were in the house when he committed the last of the counts charged against Lisa, to which he pleaded guilty. As to Kay's description of the comment being made "in a joking manner", that could well have been in an attempt to deflect or discourage the appellant without causing a scene. Kay's account of the earlier incidents, in saying that she needed to go to the bathroom, is consistent with such behaviour (and, indeed, Kay went to the bathroom on that occasion). Kay's explanation for making the disclosure to the appellant's wife at that stage (that she had learnt in sex education classes that this behaviour was wrong) has the ring of truth. 298Moreover, an incident of the inadvertent kind that the appellant and his wife described (as being a hostile reaction by Kay to a disciplinary incident) seems unlikely, as a matter of commonsense, to have provoked such distress that it would cause the appellant's wife to arrange for Kay to see a counsellor some months later or, indeed, the high level of distress that Dr Rewais observed during that consultation or the pressure he considered she was under to minimise the incident. 299It is submitted that the only consistent assertion in the evidence was that there was an incident with a cat and an inadvertent touching of the breasts of Kay at the time. The appellant points to the evidence of what Kay had told Dr Rewais and submits that there is no explanation available other than that what Kay told the psychiatrist (as recalled by the psychiatrist) was the truth. It is noted that this was consistent with the appellant's version. However, Dr Rewais was of the opinion that Kay was under great pressure to minimise the incident and was very distressed, which is not consistent with the explanation given by the appellant and his wife about the incident. 300As to the complaint to DOCS, the appellant submits that the version of Kay is unreliable and false, since it is not credible to suggest that a disclosure of a parent deliberately touching a 12 year old's breasts would not invite more investigation from DOCS. Ms McKenzie said that Kay had made it sound like it was an accidental thing and was quite embarrassed; that she did not want to take the matter any further and that her supervisor had said "from what [Kay] had told me that we really didn't have grounds to take it any further". Given the direction Ms McKenzie says she received from her superior, nothing adverse to the probability of Kay's being the correct version of events can be drawn from the fact that DOCS took no action. 301Ms McKenzie could not recall mention of a cat but recalled that there was mention that the appellant "had touched her boobs and was surprised that she was developing". At least to the extent that there was no reference to a cat, that is inconsistent with the account given by the appellant and his wife (and, for that matter, Kay) to Dr Rewais. Ms McKenzie also recalled that the appellant's wife had dominated the conversation, lending credence to Kay's evidence that it was the appellant's wife who had told her what to say. This is consistent with Dr Rewais' observation that Kay was under pressure to minimise the incident and was afraid that the appellant would get into trouble over it. 302The appellant also points to the different versions of the evidence given by Kay as to what she told the appellant's wife on the day that count 7 occurred: at the voir dire hearing before Finnane DCJ ("Dad had touched me, nothing other than that"; at the trial (her acceptance of the proposition put to her by Counsel that she had told the appellant's wife that he had stuck his hand down her pants and rubbed her vagina and it was not the first time he had done it). 303Kay accepted in cross-examination that her memory had improved since she gave her earlier evidence in the voir dire hearing (when cross-examined as to the differences in her evidence as to the content of her disclosure to the appellant's wife). She attributed this to the earlier hearing having been the first time she had "ever started to remember anything" and having had some time since then to think about it. Whether or not Kay told her that the appellant touched her on the vagina or simply that he touched her inappropriately, it is clear that there was a disclosure of touching at the relevant time.

[38]

Conclusion as to unreasonable verdict grounds 306Having the above in mind, I have reviewed carefully the transcript both of the voir dire hearing (to which reference was made, together with reference to various of the witnesses' earlier police statements in the course of cross-examination at the trial) and of the trial itself. Obviously, the jury had the benefit of having seen and heard the witnesses (SKA at [13]), an advantage of particular relevance having regard to the emphasis the appellant places on inconsistencies in the evidence of Jane and Kay and the manner in which they explained or addressed those inconsistencies in cross-examination. 307Jane and Kay's evidence was not, of course, the whole of the evidence before the jury. In particular, the jury had the benefit of the evidence of Mary and Paul (as to the disclosures made by each of Jane and Kay) and of the appellant and his wife. 308Evidence of the family meeting in 2007 and of the consultation with Dr Rewais in 2003, for example, is significant in that it shed light on the family circumstances and the manner in which the appellant and his wife responded to the issues that were undoubtedly raised as a result of the incident involving Lisa that the appellant's wife witnessed and the incident that formed the subject of count 7. 309The account given by the appellant's wife of the consultations with the psychiatrist and her reaction to the foreshadowed notification of DOCS was contradicted by him, an objective observer with the benefit of contemporaneous file notes. The reaction of the appellant's wife to the foreshadowed notification to DOCS and at the family meeting is consistent with the reaction that the complainants say they received from the appellant's wife when they disclosed the appellant's conduct to her and with Paul's description of her response at the family meeting. 310The letters written by the appellant and by his wife to DOCS in 2009 are not consistent with their apparent inability to recall critical matters in the witness box and suggest an ongoing attempt by them in their evidence to minimise the concerns that had arisen at the time of Lisa's disclosure. Even if the family meeting, and the apologies made by the appellant at that meeting, related only to conduct that had occurred in relation to Lisa, the attempt to downplay the seriousness of what had occurred does not reflect well on their credibility. 311The dismissal by the appellant's wife of the suggestion that locks be put on the doors, and the appellant's insistence that there was discussion of "procedures" but inability to recall anything about those is not plausible. 312The complaints by Jane to Paul were made at a time before she was aware of any complaints by Kay and Lisa. The evidence of the 2007 family meeting is consistent with Kay and Lisa's account and not that of the appellant and his wife. 313The evidence of the appellant and his wife, and in particular his attempt to resile from admissions as to his conduct with Lisa and his wife's refusal to acknowledge any sexual connotation to that conduct, did not reflect well on their credit or reliability as witnesses. 314Having reviewed the transcript I am not of the opinion that it was not open to the jury to reach the verdicts the jury did on counts 1-5 and count 7. Grounds 7 and 8 are not made out.

RH v R

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Judgment (40 paragraphs)

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Cases Cited (23)

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