[16] From the passage of the summing up quoted above it is apparent that this is precisely how the evidence was left to the jury. In particular, his Honour explained that it was relied upon by the Crown as a "general admission" in respect of the three charges, that it did not relate to any particular charge and that, of itself, it was incapable of proving any of them. Earlier in the summing up he had given an appropriate, indeed emphatic, direction about the need for separate consideration of each of the three counts. The statutory declaration was admissible for the reasons explained to the jury by his Honour and it does not appear to me that there was any danger of the jury using it impermissibly as tendency evidence."
70 In R v Hagarty (2004) 145 A Crim R 138 the complainant's father gave evidence that the accused admitted to sexual molestation of the complainant. This was treated as relationship evidence led not as tendency evidence, with approval of a direction that the admission could be used "as corroborating or backing up [the complainant's] evidence that there was an improper sexual relationship between herself and the accused". In my view, the label of relationship evidence is better avoided, and the evidence had independent relevance for the reasons last described.
71 In the present case the letters were relevant as evidence which, while not determinative of the particular aggravated indecent assault at Numbugga the subject of count 1 or specifically any other of the ten counts, could support the occurrence of the conduct charged in those counts. They were in a different position from evidence of sexual conduct on an occasion other than those charged, tendered to provide context and background or reveal sexual desire or feeling. They could have been tendered for one or other, or both, of those purposes. The appellant's admissions did more, and could be tendered as what Hidden J described as "a general admission" in respect of all the charges.
72 That appears to have been how the letters were tendered at the trial. The complainant's evidence of uncharged sexual conduct was tendered as providing context. The letters were tendered, in the Crown Prosecutor's words to the judge next set out, as "corroborative evidence of the complainant's testament". Since a similar question arises as to the Weerawardena evidence, for convenience in the following paragraphs I address the tender of both the letters and the Weerawardena evidence.
73 After the jury was empanelled the Crown Prosecutor informed the judge in their absence -
"CROWN PROSECUTOR: The Crown case involves two pieces of evidence in particular in addition to the complainant's interviews. They are, firstly, the evidence of the minister of the Christian Church by the name of Ian Weerawardena from Victoria. That evidence, in a nutshell your Honour, is of the person Mr Weerawardena having a meeting with the accused in June 2001 where he puts to him that he has been informed that [the mother's] child has been molested by the accused and he wants to know the truth of the matter, to which the accused nods his head in agreement when it is put to him did he molest the child.
The second area of evidence is a series of four letters that the accused wrote to the mother of [the complainant] in a period stretching from 11 June 2001, in fact starting prior to that but the ones of interest to the Crown are for 11 June 2001 till 1 April 2002. In those letters there are passages which the Crown says amounts to an acknowledgment of sexually improper behaviour and the complainant is referred to in at least one of those letters, or in fact in two of those letters, and the Crown says that that evidence is not admissible as to specific counts but, rather, it is corroborative evidence of the complainant's testament.
Again, your Honour, it has been indicated to me by my friend that there is no objection to that evidence and I indicate that on the record your Honour because I intend to open on it.
They are the matters that I indicate to your Honour at this stage."
74 In his opening address the Crown Prosecutor outlined evidence to be heard from Mr Weerawardena and read passages from the letters. He said that the evidence was important, but did not otherwise explain its relevance.
75 Later in his opening address the Crown Prosecutor said -
"The final thing I want to tell you about is this, and his Honour will have much more to say to you about it later, you'll hear when you listen to the tapes of the child's evidence, or the tapes of her interview with the police, you'll hear her talk about a number of other things that happened of a sexual nature between her and the accused which, if you look at the indictment, well they don't appear as charges on the indictment. The prosecution puts that evidence before you as what we call relationship or context, that is these weren't ten incidents that happened out of the blue, they happened in a context of a relationship in that sense between the accused and [the complainant] where this type of activity was happening very frequently. So it's lead for you to be able to understand the context in which these particular charges are before you and so you understand how they come about. But you can't use that evidence as proof if you find it happened, as proof of these individual charges. As I said his Honour will tell you much more and give you directions about that evidence at a later date.";
76 In this opening the letters and the Weerawardena evidence were treated differently from the complainant's evidence of uncharged sexual conduct. The latter was treated as relationship evidence; the letters and the Weerawardena evidence were not.
77 For such light as it sheds on the tender of the letters and the Weerawardena evidence, in his address to the jury after the conclusion of evidence the Crown Prosecutor also treated separately with the uncharged sexual conduct in the audio tapes and the letters.
78 At an early point the Crown Prosecutor said -
"Ladies and gentlemen you also heard evidence on those interviews that lots of other things happened. You remember there was touching with the hand alleged. There were many more times according to [the complainant] when incidents such as forcing her to masturbate him occurred, and you remember I said to you at the beginning of this trial about that evidence, it doesn't relate to any of the charges, and you can't use, even if you're satisfied that those other things occurred, you can't use that material to prove or to be satisfied that he committed these counts on the indictment. What that evidence there is ladies and gentlemen is to show the context in which all of these counts in the indictment happened.
Let's suppose ladies and gentlemen that there are only two counts in the indictment and not 10, and this young girl were to say to you that her stepfather had licked her vagina on one occasion and put his penis in her mouth on another occasion. You might be entitled to think my goodness, out of the blue where did this come from? It would seem to you perhaps very odd that these isolated incidents happened. But what this other evidence goes to show ladies and gentlemen is to put into context the 10 charges and to say well look this isn't all that [the complainant] says happened. They weren't just 10 isolated incidents that happened, it was a whole context of a whole relationship between them involving numerous episodes of this type of sexual impropriety, and that's the basis on which that evidence is put before you."
79 Later in his address the Crown Prosecutor said that the complainant's evidence "doesn't stand alone", and a little later that "the real reason in my submission or the real strength in my submission to you that you can accept what [the complainant] says happened comes with Reverend Weerawardena and with the letters, and I now turn to look at those".
80 The Crown Prosecutor addressed on the Weerawardena evidence, describing it as admissions not of specific charges on the indictment or specific counts but of sexual impropriety with the complainant. He then addressed on the letters, asking the jury to "look carefully at these letters and focus on what the accused particularly says about [the complainant]", and said -
"Ladies and gentlemen, in the accused's own words he admits to [the claimant's mother] and to you that he's been engaged in sexual impropriety. If you put what he said to Mr Weerawardena together with what he said in the letters there can be no doubt ladies and gentlemen that he was engaged in a sexual relationship with [the complainant] and had committed sexual impropriety. But that does not prove each of those counts on the indictment. The effect of that evidence ladies and gentlemen is to corroborate or to strengthen, to support the credibility of [the complainant] when she talks to you about there being this context or this relationship of sexual impropriety going on, and in my submission to you helps you in terms of her credit, that is how much you believe her, helps you to assess her as being credible when she talks to you about those individual things that happened as described in the indictment."
81 The appellant did not submit that the letters were irrelevant, or that they were inadmissible apart from exclusion by reason of a s 137 judgment. Nor was it submitted that the judge had erred in his directions to the jury as to the proper use which could be made of the letters, or had failed appropriately to direct the jury that each of the specific occasions of sexual assault had to be proved beyond reasonable doubt. The appellant did not raise an exclusionary rule for tendency evidence, relying only on exclusion under s 137 of the Evidence Act. The Crown's written submissions expressly asserted that the letters were "not tendered as tendency evidence and therefore did not have to meet the tests of s 97 and s 101 of the Evidence Act". The appellant did not contend to the contrary.
82 The question under ground 2 was whether there was a miscarriage of justice because the letters were not excluded by reason of a s 137 judgment. In answering the question, relevance as "guilty passion" evidence did not arise at the trial. The letters were admissible because relevant not only to provide context, so far as they did so. They were admissible for their independent relevance as admissions of sexual conduct with the complainant.
83 Rule 4 of the Criminal Appeal Rules provides -
"4. No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
84 As I have noted, counsel for the appellant did not ask the judge to exclude the letters, and leave is required.
85 In R v Button [2002] NSWCCA 159 (reported but not as to this at (2002) 54 NSWLR 455) Heydon JA, with whom Greg James and Kirby JJ agreed, said -
"32 In R v Abusafiah (1991) 24 NSWLR 531 at 536 Hunt CJ at CL said:
'The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ( R v Knight , Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice.'
33 In R v Sanderson (CCA, 18 July 1994, unreported, pages 7-8) Gleeson CJ said:
'This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of rule 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration, then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.'
34 In R v DH [2000] NSWCCA 360 at [115] Stein JA (Smart and Ireland AJJ concurring) referred with approval to what Mahoney JA said in R v Jeffrey (CCA, 16 December 1993). At pages 6-7, Mahoney JA said of the principle embodied in r 4:
'In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing-up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … But it is important that, if a citizen is to be tried, he be tried once and for all. The evil both of objections 'held in reserve' and raised only on appeal and of second and subsequent trials is great.