RWC v R [2010] NSWCCA 332 | Case summary

RWC v R [2010] NSWCCA 332 | Case summary | Zoe

[13]

Overview 5 The complainant was born on 29 November 1993, to the appellant and his then wife, DC. An older sister, KC, was born on 11 March 1992. In about November of 1998 the appellant and DC separated, and the marriage was later dissolved. At the time of separation the family were living in a town called Wollongbar; after the separation, DC, the complainant, and KC moved to Ballina and the appellant remained in Wollongbar. DC established a relationship with another man, to whom it is only necessary to refer as "Tony". 6 DC and the appellant established a regime of shared parenting. It is unnecessary to go into the details of the arrangement; it is sufficient to say that, on a regular basis, the complainant and KC would go to the appellant's home and stay there for some nights. 7 During this time, the Crown alleged, the appellant displayed a sexual interest in the complainant. This included treating the complainant "like his wife", kissing her on the lips, holding her "like I was his wife", and making her sleep in his bed; he told her that he loved her, and touched her on the vagina and the breast. 8 The charges themselves related to the events of two separate occasions, both during the period identified in the indictment, which covered the period when the complainant was in Year 5 at school. The first of these occasions was "about three-quarters of the way through the year", before the complainant's birthday (in November) and near the appellant's birthday (at the end of September). The complainant was in the appellant's bed and he was "holding me really tight"; she thought he was "pretty drunk"; she wanted to call her mother, but he did not allow her to do so; he penetrated her vagina, initially with his hand, and then with his penis. He told the complainant that "it was right" but that she was not to tell anybody. The digital penetration of the vagina gave rise to the first count on the indictment; the penile penetration gave rise to the second count on the indictment. 9 The second occasion was about one month later, on or around the complainant's birthday. The complainant again was in bed with the appellant. He was not as intoxicated as on the previous occasion. He again digitally penetrated the complainant's vagina, and then masturbated to ejaculation. The digital penetration gave rise to the third count on the indictment; the masturbation in the presence of the complainant gave rise to the fourth count, of an act of indecency.

[15]

The evidence of the complainant 11 The evidence in chief of the complainant was given, in the first instance, via video recordings of two interviews in which she had participated, on 23 and 26 November 2007. That procedure is authorised by s 306S of the Criminal Procedure Act 1986. That evidence was supplemented by her giving oral evidence from a remote location, pursuant to s 294B of the Criminal Procedure Act. 12 The first interview took place on 23 November 2007, with Detective Senior Constable Rebecca Scott of the Joint Investigation Response Team ("JIRT"), a multi-disciplinary unit involving NSW Police and the NSW Department of Community Services. Also present was Ms Jan Williams, a caseworker with the Department of Community Services. It was just six days before the complainant's 14th birthday; the second interview, three days later, was three days before her 14th birthday. 13 Although the videotapes are probably available for viewing by this Court, I have, consistently with the position I adopted in SKA v R; R v SKA [2009] NSWCCA 186, not viewed them. Bearing in mind that the correctness or otherwise of that position is currently under review in the High Court (SKA v The Queen [2010] HCATrans 198), counsel were invited to put submissions to the contrary. No such submission was received, from either counsel. 14 In the first interview, the complainant gave an account of events substantially in accordance with the outline of the Crown case I have given above. (I note that she pinpointed the date of the break up of the marriage of the appellant and DC as when she was "about 2", which would be 1995-1996; DC said it was in November 1998, when the complainant would have been five years of age. I doubt that there is any significance in this discrepancy. Certainly it did not give rise to any cross-examination.) 15 It is, however, convenient to extract some of the more significant answers that the complainant gave. 16 At an early stage in the interview the complainant said that she had ceased contact with the appellant about two years previously, because she did not want to go back there. She said that was because she did not feel safe there; and that, in turn, was because "he didn't treat me fair", "he did stuff I didn't like". This was: "… he emotionally hurt me, and he touched me sometimes."

[24]

He was just touching me and stuff and, with one hand, and the other hand he was holding my hands with. And then he put his penis in me." 24 She said that she was trying to roll away but that he would not allow her to do so; he was touching her, inside the vagina, with his hand; "it just really hurt". 25 He then put his penis in her vagina. He told her that it was "right", and that she was not supposed to tell anyone. She said that she was "pretty scared". 26 The complainant then answered questions about the second occasion. She said that she and the appellant were in bed. There is some apparent confusion in her answers about the time of day of this event. She said that it was daytime; that the appellant had made her sleep in his bed the night before and that they were still in bed and he would not let her go. She then said that it was midday. She thought that because a clock radio next to the bed had activated. In any event, she said that the appellant was rubbing his penis, that he held onto her and would not let her go; he used his fingers to penetrate her vagina, and then masturbated by rubbing his penis. She saw ejaculate coming from his penis and onto the sheets. 27 The second interview really did not cast any additional light upon these allegations. 28 After the jury had viewed the videos of the complainant's interviews, the trial advocate (for the Crown) asked some additional questions. He showed the complainant a series of cards and notes and letters that she had written. Although it will be necessary in due course to say a good deal more about these, it is sufficient, at this stage, to say that they consistently avowed the complainant's love of the appellant, and, sometimes, hatred of her mother. For present purposes, one will be sufficient to give the flavour. This is a document dated 13 September 2004, in which the complainant had written (I have retained the original spelling and punctuation): "I imagin all bad sorts of things happening to my lovely Daddy And I Love Dad so Much and I MISS so much I WOULD kill mum, I HATE MUM, I LOVE DAD. Dad said he might be able to pick me up on tuesday, but I rekon they wont let him. Im realy scared that Dad will think I Don't love him when he rings me early Tonight cause I wont be there, I'll be at the counceller or kung fu. Im really scared about that.

[28]

Two illustrations followed; the first of a stick figure of a female with the word "mum" above it, and a cross through the illustration; the second a drawing of a male figure and circled by three hearts, with the word "DAD" and circled by another heart. This document was signed by the complainant. 29 After she was shown these documents, sequentially, and had their contents read to her, the complainant was asked to explain the circumstances in which she had written them. She said: "It was because of the things he said to me, he'd say things like, 'If you don't come live with me, you don't love me.' 'You don't love me do you.' 'If you don't come live with me then I'm moving off to Western Australia and you'll never see me again.' And I was just young you know, I didn't know what to do." (AB 264) 30 The complainant was then shown a printed version of an SMS message she had sent to KC's boyfriend, MT, on 30 May 2007, and his reply. In her message to MT, the complainant wrote: "When I was about 10 I got serious depression. I would see things that weren't there and hear things that weren't happening. I stopped talking to everyone and never ate. Then for some reason I wanted to live fulltime with my dad … And I became really obsessive with staying there, spewing up my insides all the time, I cried everyday and was never happy at all, except when I was with my dad. I became to trust him and push my mum out my life. Then one day I was at his house and [KC] wasn't there. He told me to come to his room and lay in his bed. I did what I was told because I loved him so much and thought that it might make him happy if I did. I had no ide (sic) what would happen. Also he drank heavily everyday. Then when I laid down on his bed he pulled down my pants. I wanted to stop him but I couldn't move and then he raped me and nobody knew and I never told anyone. After that about one month later, I (I was about 11 then) realised that I hated my dad and I began to break free of my depression. I began to hate him a lot so much that I called him and told him I wouldn't see him again, which was a lot for me to do then. I have gone in and out of counselling many times. But they don't work, all they do is lockup the sadness inside you so that it can be released at the next vulnerable time." (AB 268-269)

[29]

That concluded the complainant's examination in chief. She was then cross-examined. 31 To a large extent, it appears that the cross-examination was based upon quite extensive records and reports from a variety of individuals in the medical and counselling professions. This resulted in propositions being put to the complainant, apparently drawn from histories and notes taken by doctors (including a psychiatrist) psychologist and counsellors. The actual documentation that seems to have been the source of those propositions never found its way into evidence (with some exceptions, a psychiatric report, and progress notes of a psychologist). The complainant was repeatedly asked if she "accepted" the propositions put. To a large extent her answers were equivocal - frequently, she said that she could not remember, but that she "accepted" the propositions, or the possibility that what was being put had occurred. But later (AB 307) she said: "I don't understand what you mean by when you ask do I accept that, does that mean I agree with that?" 32 The cross-examination established that, during 2004, the complainant had received counselling from a number of people in various branches of those professions. These included her class teacher, Ms Ruskin; a school counsellor, Colleen Visser; a psychiatrist, Dr Michelle Fryer; and a psychologist (wrongly named in the transcript also as Dr Fryer, accurately Ms Claudia Valenzuela); a Paul Johnson (who the complainant thought was a "natural counsellor, psychologist or psychiatrist, in Ballina, I think"). 33 A report by Dr Fryer was tendered. There was then a discussion about whether the report ought to be read to the jury in the hearing of the complainant, the judge expressing some sensitivity, given the complainant's age and the nature of the contents of the report. Not unreasonably (and exhibiting a considerable degree of maturity) the complainant interjected: "With all due respect your Honour, how am I supposed to answer questions if I -" 34 After discussion, partly in the absence of the jury, his Honour told the jury that the report would not be read in full, but that defence counsel would read to the complainant those parts of it on which he intended to cross-examine. 35 The complainant agreed that, during 2004, she had seen Dr Fryer, and that when she did so, she had depressed mood, severe anxiety, and was in an obsessive compulsive frame of mind. She agreed that she had spoken of fears for the appellant, difficulties with her parents, and had said that she wanted to live with the appellant. She agreed that she had reported, up to six times a week, incidents of bullying at school. She agreed that from about the middle of 2004 she had begun losing weight, suffered from poor concentration, that her school performance deteriorated, that she was constantly talking to herself, and that it was about this time that she started seeing the school counsellor, Ms Visser. She saw Ms Visser on 8 December 2004. She agreed that, on that day, she drew a picture in which she placed the appellant very close to herself, as the most important person in her life. She agreed also that, a week earlier, on 1 December, she had told Ms Visser that she wanted more access with the appellant. She accepted that she had seen a general practitioner, Dr Traise (who had referred her to Dr Fryer) in early September 2004, and she had spoken to him of a possible two week trial period living with the appellant full-time, and that this "would show mum" and that she had told Dr Traise that when she was with the appellant she was happy. 36 She accepted (while expressly disclaiming any actual memory of it) that she had developed a practice, at home, of looking out of a window to see if her father was driving up and down the street. (No time frame was specified in the questions on this topic.) 37 The complainant was asked about an occasion, in October 2004, when she went on a school excursion to Brisbane (AB 313). The group stayed in a holiday park. She agreed that she had resisted going on the excursion because it would disrupt her routine of seeing the appellant. At her request she had stayed with the appellant the night before she left. She accepted (again while denying any memory of it) that she sat on the floor, at his feet, while he sat on an easy chair. 38 It was put to the complainant that she had found it difficult to settle that night, and that she had, on three occasions, left her room to go to the appellant's room, and that on each occasion the appellant had taken her back, holding her hand and reassuring her about the excursion. To each of these questions she replied that she could not remember; at times she accepted the possibility of what was put, but eventually diluted this by saying "anything's possible". To a suggestion made to her that, during that evening, she was becoming hysterical, she replied: "could be". The complainant did agree that, while on the excursion, she was upset because she wanted to be with the appellant, and that she had told her teacher that she wanted to go home. She denied a proposition that, at Dream World, she had smeared blood on her face. 39 She agreed that, during the latter part of 2004, she had told her teacher that the appellant came into her classroom, and told her that he loved her; that in the playground she saw him standing under trees; that he came to the door of the classroom and watched her; and that, at lunchtime, she sat in the front office because she could see the appellant come into the office each day; that she worried when doors were closed; that the appellant would knock on the door and say "[C], open the door, I can't get in", and that she would try to open the door for him; that she became very upset when the office staff told her to stop opening the doors. It was clearly implied in the questions, and, it seems, accepted by the complainant, that these assertions by her to Ms Visser were no more than imagination, even fantasy. 40 The complainant agreed that she had told Ms Visser that if she accidentally kicked the leg of a chair, she might think it was the appellant's leg; but she accepted only the possibility that she might also have said that she would rub the leg of the chair and "tell daddy how sorry [she] was". 41 She accepted the possibility that she might have said to Ms Visser: "Why doesn't anyone understand I just want to be with dad?" 42 It was put to the complainant that her evidence the previous day, in chief, that the appellant had told her that if she did not come to live with him he would go to Western Australia was incorrect; she maintained that he had said that. 43 Finally, it was put to the complainant explicitly that the appellant had never touched her vagina, and had never had penile sex with her, nor attempted to do so. She adhered to the account she had given in the interview. 44 Earlier in the cross-examination, a series of questions was put to the complainant, apparently designed to challenge her statement in the interview that, about 2 years previously, she had ceased contact with the appellant. The questions related to counselling discussions with Ms Visser in February 2005, in which, it was suggested, the complainant had told Ms Visser that she maintained weekly telephone contact with the appellant, and that the complainant had shown the appellant her school portfolio. She agreed with the former proposition, but did not accept that she had shown the appellant her school portfolio. 45 In re-examination, the complainant said that she had expressed fears for the appellant. Her fear was that the appellant would think that she did not love him, and that caused her anxiety. That was why she had said that she wanted to spend more time with him. She said that she had not in fact wanted to spend more time with the appellant, but that she had said so because of what he had said to her, including that he would leave and go to live in Western Australia. She said: "He'd say 'You don't love me, do you, if you don't come and live with me you don't love me, why don't you love me?' over and over again, he'd always say it." (AB 330)

[31]

The evidence of DC (the complainant's mother) 46 Evidence was then given by the complainant's mother, DC. Her evidence was largely directed to the behaviour of the complainant over the relevant period. She said that in Years 3 and 4 at school, the complainant was a happy child and was doing well at school. DC noticed changes during 2004, when the complainant was in Year 5. In August of that year the complainant became very anxious, started to lose a lot of weight, and she returned from visits to the appellant complaining that she had had stomach cramps and had been vomiting all weekend. She also complained of being bullied at school. As a result, DC arranged for the complainant to see the family general practitioner, and also to have counselling. That was when she saw Ms Visser. After discussion with Ms Visser, DC took the complainant to Dr Traise, the general practitioner, and to Paul Johnson, who was a school counsellor and who also did some freelance work with adolescents; and then to child psychologist Claudia Valenzuela. Arrangements were also made for the complainant to be assessed by Dr Fryer with whom she consulted three times, in September and October 2004. DC confirmed that the complainant was reluctant to go on the school excursion to Brisbane, because, the complainant said, she did not want to leave the appellant. But at about Christmas of 2004 the complainant said that she wanted to cease regular visits to the appellant. She then refused to spend half of the Christmas holidays with him, as was the previous practice. KC did spend some time with him. Although DC asked the complainant why she would not go to the appellant's, the complainant gave no explanation, merely repeating that she did not want to go. 47 It was not until mid-2007 that the complainant first told DC anything about the conduct now alleged against the appellant. DC first became aware of these allegations when she received a telephone call from KC, who was obviously distressed, and who asked DC to return home. DC did so, and had a conversation with the complainant. The terms of that conversation were not in evidence. 48 Cross-examination of DC established that, during the second half of 2004, she and Tony were arguing regularly, and that, at times, this distressed the complainant. DC agreed that, from August to the end of 2004, she was receiving "a clear message" from the complainant that she wanted to live with the appellant. DC said, however, that that was what the complainant was "implying", but that she was very emotional about it. 49 She said that, at times, she and the appellant met with Ms Valenzuela, the object of the exercise being to achieve some resolution of the problems the complainant was experiencing. She agreed that prior to Christmas 2004, the complainant was hostile to her (DC), but that after Christmas she wanted to spend time with DC and have only telephone contact with the appellant. She agreed that, in the second half of 2004, when the appellant returned the complainant and KC home after their spending time with him, the complainant "would hang onto to him almost for dear life", and would become hysterical, saying that she wanted to stay with him and not come home to DC. She agreed that she had been told about the complainant's fantasies about the presence of the appellant at her school, and that the complainant attempted to hurt herself, on at least one occasion deliberately crashing her bicycle so that she would injure herself. She agreed that all of this took place against the background of the complainant's expressed wish to be with the appellant.

[35]

She said that the appellant kissed the complainant on the lips while they were at his mother's house. 56 She said that, at Wollongbar, when the three were together watching television: "I would be sitting on a separate lounge watching the TV and them two would be on another lounge together. Normally they wouldn't be watching the TV but actually holding each other or he would be kissing her … They would be laying down on the couch, each other and like spooning each other … Laying down next to each other, against each other, holding each other." (AB 390) 57 She said that the appellant pressured both girls to return to his house and threatened that if they did not, he would hurt himself or go and crash his car. She said: "He said he would move away to Western Australia and we'd never see him again and we would never have a father." (AB 390-391) 58 She said that, in the Christmas holiday of 2004, the complainant decided not to visit the appellant any more, but that she herself continued to do so, for about another 2½ years. 59 Cross-examination was initially directed to challenging KC's evidence to the effect that the appellant favoured the complainant, and treated KC less favourably. She agreed that the appellant had generously helped her with school assignments and that, on one occasion, he had driven KC and six or seven of her friends to Brisbane for a concert in a minibus hired for the purpose. She agreed that he gave her money and birthday presents. 60 Despite a sustained challenge, KC maintained that she had observed the appellant kiss the complainant on the lips. 61 She agreed that she had liked spending time with the appellant, and that, in December 2005, she had sent an email to the appellant in the following terms: "Hey, hey dad, what's happening. Dad this weekend is the weekend mum and everyone is going to Auntie Doss's for her birthday party thingo. Dad I don't want to go, she's making me. Today she made me go to stupid [the complainant's] counsellor, I don't want to go. Do I have to go? Isn't it my weekend with you? We need to go Christmas shopping, do I have to go?" (AB 400) 62 The point of this, and much other cross-examination, was to call in question KC's evidence of the differential treatment she said was afforded by the appellant to her and the complainant. (If that attack were successful, it could have had either or both of two consequences. It could have reflected adversely on KC's credibility; more specifically, it could have shaken the Crown case that the appellant displayed an interest of a sexual nature in the complainant.) KC was also cross-examined to challenge her assertion that inappropriate conduct on the part of the appellant towards the complainant had taken place in the presence of the appellant's mother. 63 It was put to her that, until Christmas 2004, the complainant wanted to spend as much time as possible with the appellant. Her reply was guarded. She said: "I wouldn't say it in those words but she wanted to spend time with him yes." (AB 405) 64 Counsel persisted in putting to KC, firstly, that she had not at any time seen the appellant kiss the complainant on the lips; and secondly, that her evidence that she had told them to stop was incorrect. She said: "I got angry at them and I told them to stop." (AB 414) 65 The cross-examination concluded with the following series of questions and answers: "Q. … I suggest to you that you did not tell her to stop and desist in any behaviour with her father? A. I did.

[60]

He answered: "At the moment, yes, as a result of her illness." (AB 433) 80 He disagreed "totally" with KC's suggestion that he had favoured the complainant, and gave details of activities undertaken with both daughters, including helping KC with her schoolwork. 81 He denied kissing the complainant on the lips, and he denied putting his hands on her thighs. He denied threatening to leave to go to Western Australia if his daughters did not come to see him. He described as "complete nonsense" the suggestion that he tried to get the complainant to sleep in his bed. In this respect, he said that, initially (presumably immediately after the separation from DC) he had very little furniture, and he had to share a bed with them, but that that was when they were very little girls, and did not happen again. 82 He was asked about "the problems" that emerged with the complainant during 2004. He said that occurred, probably towards the middle of the year, and that there was a change in the complainant who was: "… obsessed with living with me. She was obsessed with staying with me and not going back to her mother." (AB 435) 83 He then gave evidence of being notified by the complainant's school that the complainant was isolating herself from her friends resulting in bullying, and also that the complainant was so obsessed with him and with living with him that at recess and lunchtime she would not play with her friends, but would wait at the administration building. The appellant surmised that the complainant associated the administration building of the school she attended with him, because he was a deputy principal of a primary school. 84 He gave evidence about attending the family counselling, and about the Brisbane excursion. 85 He denied each of the allegations the substance of the charges. 86 He said that when she returned from the Brisbane excursion, the complainant presented him with a number of gifts, for which she had used the entirety of the spending money she taken with her. The gifts included a ring which the complainant encouraged him to wear (although he did not). The appellant said that he felt sorry for KC because the complainant did not bring her back any gifts. 87 The appellant gave a very different account of the termination of the contact relationship between him and the complainant. He said: "I was in a very difficult situation where I - I love my daughters dearly but in this case we're particularly talking about [the complainant], I love [the complainant] and regardless of what's going on in the courtroom here at the moment I still love my daughter dearly. I had this - I love [the complainant] dearly but I was in the situation where I saw [the complainant] who was becoming ill. She had this unnatural obsession with me and living with me while at the same time I was encouraging a positive relationship with her mother and with me at the same time. I totally agree with joint parenting. So I was in the situation where I had a daughter that I loved. I saw my daughter becoming very, very ill and I had to make a very hard decision to do something about that and I had to not see [the complainant] as part of her treatment." (AB 444) 88 He described the complainant as "ill and suffering" and said that he had to "cooperate to do something about it" and one of the means was separation from the complainant for a time. He was seeking methods of maintaining contact with the complainant in appropriate ways, either by telephone or via the internet, so that she did not believe that her father had abandoned her. 89 He said that throughout 2005 he did not have "normal contact" with the complainant, and there developed "a pattern" when he did not see her at all but that, thereafter (although infrequently) the complainant would come to the door at her mother's place when he returned KC after a visit. He said that on a couple of occasions the complainant was excited to talk with him about her school portfolio, and another when she was excited because she had been to the optometrist and had new glasses. (This appears to be a further contradiction of the answers given in the interview, that he had not seen the complainant since Christmas Day 2004.) 90 The appellant was cross-examined at some length about his relationship with the complainant. The cross-examination focussed substantially upon the truth or otherwise of his statement in his interview that he and the complainant had "an outstanding father-daughter relationship", and upon the appellant's participation in the various counselling exercises. * * * 91 After the appellant's evidence, counsel addressed, the trial judge summed up and the jury retired to consider its verdict. After about two hours (which included the lunch adjournment) the jury sent a note asking a question, which his Honour read onto the transcript, as follows: "Is there a reason why [the appellant] did not have supporting witnesses, ie [the appellant's] mother, [the appellant's] brother?" 92 His Honour responded in the following way: "The first thing I say to you about that is I emphasise about the burden of proof. The accused does not have to produce anybody, prove anything to you at all and it is very important that you remember that." 93 He went on to refer to the report of Dr Fryer and to draw to the jury's attention a reference in that report to "a paternal uncle [of the complainant] with schizophrenia". He told the jury there was no other evidence about who that was and it was for them what they made of it. 94 He then read to the jury that part of the evidence of the appellant in which he referred to his brother, and to his mother as "somewhat infirm", the passage I have extracted above. Less than half an hour later the jury returned with the verdicts of guilty of all charges.

[89]

It's really very, very marginal but it's prejudicial effect in my submission outweighs the probative value … so really that's what the defence is saying there." (AB 376-377, italics added) 104 Counsel then turned his attention to paragraph 8 of the statement and made the following submission: "There is in my submission nothing that could be derived from that that could be relevant to the allegation that on these occasions, these two occasions he was alleged to have done these things." (AB 377) 105 From these submissions it is not easy to identify the basis on which, or, indeed, the specific evidence of KC to which, objection was taken. No reference was made to any provision of the Evidence Act 1995, and no reference was made to any authority. 106 In response, the trial advocate made the following submission: "What the Crown says is that this is evidence from [KC] that is capable of being considered by the jury as consistent with evidence already given by [the complainant] and the Crown says it's evidence that is ultimately relevant to the disputed fact in issue. Namely, whether as part of this behaviour or treating his younger daughter more as a wife or a partner in a generalised sense, that that behaviour ultimately led to sexual abuse of her." (AB 380) 107 In these circumstances his Honour had a difficult task in determining the admissibility of the evidence. He gave a ruling, which does not need here to be reviewed. 108 The same lack of focus permeated the appeal. Ground 3 of the appeal, in the first instance, challenges the relevance of the evidence, but then proceeds to make complaint which may be seen to be framed in terms either of s 101(2) or s 137 of the Evidence Act. In written submissions, the evidence of KC was put into the category of "background or relationship evidence". 109 Prior to that, however, submissions such as the following were made: "[KC] spoke of an occasion when the kissing occurred in front of the appellant's mother and brother and raising it with the grandmother (not that it provoked any reaction from them.) None of this was of sufficient moment at the time for her to report it to the mother or to CV although she said she mentioned it to some person 'Thea' a purported counsellor who does not become relevant in the case. These alleged actions did not prevent [KC] from continuing to spend time with the father between 2005 and 2007 up until the disclosures being made."

[91]

73 Evidence of a sexual relationship beyond the matters charged may have a powerful influence on a jury's verdict. It will most likely reflect sexual desire in the accused for the complainant making it essential that the relevant provisions of the Evidence Act are identified and applied and appropriate directions are given in a manner which ensures there is no misunderstanding by the jury of the part the evidence can legitimately play . Because of its potential prejudice the risk of a trial miscarrying may be greater when the allegation relates to sexual acts involving children than sexual acts between adults." (italics added) 112 In these passages McClellan CJ at CL identified a distinction that has developed in NSW (particularly as a result of the specific provisions of the Evidence Act) between two classes of evidence that might broadly be called evidence of criminal or discreditable conduct on the part of an accused person (towards the alleged victim) other than conduct the subject of the charge or charges. One category is commonly referred to as "relationship" or "context" evidence (the former term having fallen somewhat into disfavour and the latter assuming supremacy). The other category is "tendency" evidence. 113 In ES v R (No 1) [2010] NSWCCA 197 Hodgson JA identified a third category that he called "motive" evidence, but he found little to distinguish this from tendency evidence, at least in cases involving allegations of sexual misconduct by an adult towards a child: at [38]. 114 The distinction is of real importance in jurisdictions (of which NSW is one) which operate under the evidentiary regime of what was once hoped and intended would be uniform evidence legislation. 115 In those jurisdictions, the evidence legislation (eg Evidence Act 1995, NSW) makes express provision with respect to the admissibility of tendency evidence. Admission of evidence that is not tendency evidence is regulated by the general provisions of the Evidence Act. That is why McClellan CJ at CL, in Qualtieri, emphasised the necessity to identify the purpose of any such evidence. Where the evidence is properly characterised as tendency evidence, the relevant regulation of its admission is to be found in s 97 and s 101 of the Evidence Act (subject, of course, to its relevance having been established: s 56). Where the evidence is not tendency evidence, its admission is regulated, in the first instance, by relevance (s 56), and then, in a criminal proceeding, by s 137. The tests to be applied are not identical, although the differences might be said to have some subtlety. 116 The starting point in respect to the admission of any evidence is its relevance to the issues in the proceedings. Once relevance is established, where the evidence is properly seen as tendency evidence, it is not admissible if:

[94]

There was no evidence that notice in writing had been given by the Crown of the intention to adduce tendency evidence. That is unsurprising since neither the Crown nor the defence appear to have turned their minds to that question. However, by s 100, the court is empowered to dispense with notice requirements. Moreover, by s 101, in a criminal proceeding, tendency evidence may not be used against a defendant unless the probative value of the evidence substantially outweighs its prejudicial effect. 117 Evidence that is not tendency evidence remains subject to the initial relevance test. Where it is relevant, there remains the further control imposed by s 137. By that provision, applicable to a criminal proceeding only, the court must refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice. (Since s 137 is specific to criminal proceedings, s 135, which is of general application, can be put to one side.) 118 The tests imposed by the two sections, while having considerable overlap, are different. It is not possible to discern, from the submissions made at trial, whether the test contained in s 137 or that contained in s 101, was being addressed. 119 The first step in the consideration of this ground of appeal, therefore, is to identify the category into which the disputed evidence falls. That explains the criticism made earlier that objection was taken to the whole of KC's statement, without any attempt to isolate any parts of it that were admissible, or to categorise any parts of it in terms of use and admissibility. 120 I am prepared to work on the assumption that what was objected to was paragraph 7, particularising what KC said was the appellant's preferential treatment of the complainant, that the appellant put the complainant "in the position of a wife", that he kissed her on the lips (in a way that KC considered to be inappropriate), and that, while watching television, he cuddled her (in a way that he did not cuddle KC). 121 Categorisation of the evidence depends upon an analysis of the purpose for which it was tendered. 122 Evidence that is called context evidence is not tendered as going directly to the guilt of the accused person. It is tendered to explain the relationship between the complainant and the accused (hence the term "relationship" evidence) or to explain what may otherwise be unexplained, or raise questions in the minds of the jury concerning the behaviour of the complainant in response (or non-response) to the conduct of the accused the subject of the charge or charges. Commonly, evidence of a history of sexual abuse or misconduct is tendered to explain why a complainant passively yields to the abuse, shows no surprise, or makes no complaint: see HML v The Queen [2008] HCA 16; 235 CLR 334. 123 Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges. 124 As I have noted above, the written submissions filed on behalf of the appellant asserted categorically that the evidence of KC "surely was" background or relationship evidence. If that were correct, the admissibility test is that contained in s 137, to which no reference was made. Senior counsel for the Crown agreed. Senior counsel for the Crown was driven to take this position. If the evidence was properly categorised as tendency evidence, then it is clear that the appropriate steps (for example notice) had not been taken, and the appropriate tests (s 97, s 101) had not been applied. 125 Notwithstanding the united front of counsel, the contention is untenable. In DJV v R [2008] NSWCCA 272 the accused was charged with two counts, one of sexual intercourse without consent on a person under the age of 16, the second of indecent assault. In each case, the alleged victim was the daughter of the accused. In addition to evidence of the offences, the Crown led evidence from the complainant, and from her brother, that the accused watched the complainant through the bathroom window when she was in the shower. 126 Initially, the Crown recognised that this was tendency evidence and served the appropriate notices under s 97; however, ultimately, it tendered the evidence as "relationship" evidence. Of this, McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) said: "39 The evidence of the appellant viewing the complainant in the shower could never have been described as 'relationship' or 'context' evidence … It was evidence which would previously have been described as 'evidence of a guilty passion.' It was undoubtedly tendency evidence. Because there was no issue which justified the admission of the evidence as relationship evidence and it was not proffered as tendency evidence it should have been rejected." 127 ES is a case with significant similarities to the present. The accused was charged with a number of sexual offences against the complainant, his stepdaughter. The complainant gave evidence of these incidents. Her older sister, K, gave evidence of having observed an incident (not the subject of a charge), in which the complainant was sitting on a bed, partially undressed, with the accused in front of her, his fingers in her genital area. 128 It was in considering a ground of appeal related to this evidence that Hodgson JA identified the three categories of evidence to which I have referred above (context, motive, tendency) but effectively collapsed the second and third. In that respect, his Honour said: "39 However, although there is in my opinion a theoretical distinction between categories (2) and (3) … and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard [ v R [2006] NSWCCA 267; 67 NSWLR 545] at [68], [101]]."

[100]

Again, the specified circumstances of aggravation (sub-s (3)) include that the alleged victim is under the authority of the alleged offender. Absence of consent is not an element. 139 Section 7(2) of the Criminal Appeal Act 1912 provides: "(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity." 140 The dates specified in the indictment as the dates between which the offences were committed were 5 July 2003 and 10 December 2004. The complainant was born on 29 November 1993. On 5 July 2003 she was nine years of age; by 10 December 2004 she was 11 years of age. 141 Given the dates specified on the indictment, it might be thought that it has not been established that the offence undoubtedly found by the jury to have been committed was an offence against s 66C(2) or s 66A(2). However, the evidence was unequivocal: that the events in question occurred at the end of 2004, probably between September and the end of November. At that time the complainant was over the age of 10 years and under the age of 16 years, and the offence came within s 66C(2). 142 Had I otherwise found that this ground of appeal ought to be upheld, and had I not considered that, by reason of the matters dealt with under grounds 3 and 4, the appellant is entitled to a new trial, I would have proposed exercising the power of the court under s 7(2) of the Criminal Appeal Act. Indeed, during the course of argument, this was put to counsel for the appellant, who acknowledged that he could not argue against that course being taken.

[101]

Grounds 1 and 2: unreasonable verdict 143 Despite being framed as two separate grounds, these two grounds raise precisely the same issues. 144 I would have preferred to express my views in relation to these grounds more fully. However, having regard to my conclusion that there should be a new trial, to my satisfaction that these grounds should not succeed, to the time of the year, to the possibility that the appellant may be advised to seek bail, and to the indications I have received from the other members of the bench that they agree with the result I propose, it seems to me that the interests of justice are better served by a less than comprehensive explanation for that satisfaction than by delaying judgment for the purpose of polishing that explanation. 145 The test to be applied when such a ground is raised is that stated in M v The Queen [1994] HCA 63; 181 CLR 487 and MFA v The Queen [2002] HCA 53; 213 CLR 606. The former was re-stated by the High Court in The Queen v Nguyen [2010] HCA 38, as recently as 3 November 2010. While paying full regard to the role of the jury in the determination of questions of guilt or innocence, this Court is to ask itself: "… whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 146 In particular, and with specific relevance for the present case, this Court must examine the possible impact of any "discrepancies, … inadequacies … or lack of probative force …" in the evidence. 147 The most significant complicating feature in the present case is the evidence concerning the emotional state of the complainant during the 12 months or so leading up to the dates of the events that gave rise to the charges. Undoubtedly, the complainant was a troubled, even disturbed, child. Both her evidence and that of KC (if properly admitted) established the existence of a deeply worrying family dynamic. 148 These circumstances do not amount to discrepancies or inadequacies in the evidence given at trial. The complainant's troubled history was in the open, and fully available to the jury. In my opinion it was fully open to the jury to reach the conclusion that it did. 149 Moreover, to the extent that it is relevant, I am affirmatively satisfied that the verdicts were correct. The evidence of the complainant's history is, in my view, entirely consistent with the outcome. She plainly had a dysfunctional relationship with the appellant, and with her mother; what might appear to be an unnatural dependence upon the appellant came to a dramatic and sudden end, at about (or just after) the time when she alleged the offences took place. Her affection for the appellant (together with the evidence of his use of alcohol) might well explain the two occasions of his conduct; that conduct explains her sudden loss of affection for him. I would reject these grounds of appeal. 150 The orders I propose are:

RWC v R

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Judgment (105 paragraphs)

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Cases Cited (11)

Cited By (4)