SSN v R

Ground 1: The trial judge erred in admitting into evidence in the trial the evidence of tendency set out in the Notice dated 27 September 2010 and given in evidence on the voir dire by IS and CLS ("the tendency evidence") in that:

a. he failed to analyse the nature of the tendency evidence;

b. he failed to assess the extent to which the tendency evidence could rationally affect the probability of a fact in issue;

c. he failed to assess whether the tendency evidence had significant probative value;

d. he erred in concluding the tendency evidence had significant probative value;

e. he failed to assess the prejudicial effect of the tendency evidence on the applicant;

f. he reversed the onus of proof in relation to the question of the "real chance" of concoction;

g. he failed to assess whether the Crown had negated the real chance of concoction;

h. he failed to give any reasons or any adequate reasons for his decision to admit the tendency evidence; and/or

i. the decision to admit the tendency evidence was unreasonable.

Ground 2: the trial judge erred in that he failed to direct the jury as to the limited and/or appropriate use of the context evidence.

Ground 3: The verdicts of guilty were unreasonable and not supported by the evidence.

Ground 1

1. After the jury had been empanelled a voir dire was conducted in relation to the Crown's application to admit tendency evidence pursuant to s 97 of the Evidence Act 1995. The notice under s 97 identified the relevant tendencies as:
2. a tendency to act in a particular way: namely to touch young children on the genitals; and
3. a tendency to expose his penis to young children; and
4. a tendency to have a particular state of mind, namely to have a sexual interest in young children.
5. The Crown made submissions at the trial consistent with the tendency notice. In his opening address the Crown Prosecutor said: "That evidence is put forward as a very specific type of evidence. Lawyers call it tendency evidence. And I'll have more to say about that at the end of the trial, and how you use it. Very simply at this stage, to try to put it in context for you, is this; is that if you were to be satisfied that those girls, what happened, happened, beyond reasonable doubt, you'd have to be satisfied that they were acceptable, relevant, credible witnesses, then you could take their evidence into account when you consider whether these events the Crown alleges on the indictment happened. Because the Crown would say that what that evidence displays is perhaps a state of mind, a sexual attraction to young children, a tendency to act on it by touching, by flashing, and so on. That's why that evidence is put there, but we'll say more about that at the end of the trial."
6. In his closing address, the Crown Prosecutor said: "What the Crown says with respect to that evidence is that when you consider it, what it establishes is a pattern of behaviour on the part of the accused. lt establishes a sexual interest in young kids and a willingness to act on that sexual interest, that sexual attraction."
7. Section 97 of the Evidence Act provides: "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions."
8. Section 101 (2) further limits the admission of tendency evidence against an accused by stating: "(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
9. Tendency evidence in sexual assault cases has provided difficulties for trial judges. They have been discussed, inter alia, in Gardiner v R [2006] NSWCCA 190, (2006) 162 A Crim R 233; R v Fletcher [2005] NSWCCA 338, (2005) 156 A Crim R 308; HML v The Queen [2008] HCA 16, (2008) 235 CLR 334; BBH v The Queen [2012] HCA 9, (2012) 86 ALJR 357.
10. The tendency notice (set out at [24]) identified the asserted tendency in a generalised manner and without discriminating between boys and girls. Although the identified acts were said to involve young children, they did not extend to all of the sexual acts which the complainant had alleged that the applicant had committed on him.
11. I have previously provided a general account of the evidence advanced as tendency evidence. The applicant provided a more detailed summary which I am satisfied is accurate and which I adopt.
12. The evidence of IS:
13. She was not related to the applicant.
14. She lived at the [location] Aboriginal Mission.
15. That at about the age of 7 or 8, although she cannot really remember what age, the applicant stayed at her home. The applicant stayed there with his girlfriend DA, who is the witness' cousin.
16. The witness remembers the applicant unzipping his jeans and showing the witness his penis. The first time this happened the applicant was standing in the hallway and when it occurred the witness ran to another part of the house.
17. The applicant showed his penis on an almost daily basis while the applicant was living there. She is not sure how long the applicant was living there.
18. CLS, her sister, was present on one occasion that it happened. The witness and her sister were in the first room in their house when the applicant came in with his penis hanging out. DA called out to him and he left the room.
19. At some stage, the witness was sitting on the lounge and the applicant sat down next to her. He then put his hands between her legs and started moving his hand. The witness tried to jump up but was grabbed by the applicant. She then quickly got away and ran into her room where her friends were playing.
20. On one occasion the applicant tried to kiss the witness on the lips but the witness kicked the applicant in the groin and DA said "Don't boot him there because he won't be able to have kids."
21. The witness didn't speak to her sister about these things but "every kid knew about him".
22. The witness is a first cousin of the complainant. She talked to the complainant about these matters before the police contacted her.
23. She said to the applicant's niece in about July 2009 that "I hate your uncle" and "He is nothing but a child molesting dog."
24. The evidence of CLS:
25. The witness was about 6 years old when she was living with her family at the Aboriginal Mission, Walhollow.
26. At that time the applicant and his girlfriend DA stayed with her family. She does not know how long they stayed though it was probably a couple of weeks.
27. The witness and her sister, IS, shared the second room. They used to put the bunk bed up against the door to stop the applicant from coming in.
28. On only one occasion, that she can remember, the applicant stood near the corner of the bathroom hall and flashed her and her sister IS.
29. They were in their room and the applicant walked up the hallway. He then stood at the doorway to the bathroom and then he started flashing himself and laughing. They locked the door and put the bunks up against the door.
30. She is a first cousin of the complainant. Before she spoke to the police the complainant spoke to her about his allegation. She didn't tell anyone about what she said happened to her until she spoke to the police.
31. In Gardiner, Simpson J at [125] set out the steps required of a judge when considering whether to admit evidence tendered as tendency evidence. Her Honour said: "125 Where tendency evidence is tendered the judicial process involves: (i) determining whether the evidence has probative value; that is, determining whether it is capable rationally of affecting the assessment (by the tribunal of fact) of the probability of a fact in issue; (ii) if it is determined that the evidence is so capable (and therefore has probative value), determining whether that probative value is capable of being perceived by the tribunal of fact as significant (as explained in Lockyer); (iii) (in a criminal case) if it is determined that the evidence is capable of being so perceived, applying the s101(2) test, and determining whether the probative value of the evidence substantially outweighs any prejudicial effect upon the defendant. The first step in the process necessarily further involves the identification of the fact in issue the probability of the existence of which is said to be affected by the evidence tendered as tendency evidence."
32. In Fletcher, Simpson J again had occasion to discuss the process involved when considering the admission of tendency evidence. Her Honour said at [33]: "lt is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s97(1 ). Some precision in that analysis, also, is required. lt is necessary to bear in mind: (i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury); (ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s97(1 )(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence "to be adduced", and implicitly by the use of the subjunctive "would not" in s97(1)(b). (iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of "probative value" contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (i.e. is capable of rationally affecting) the probability of the existence of a fact in issue; (iv) the task that a trial judge undertakes under s97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, i.e. if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible."
33. As Simpson J emphasised, the probative value of the evidence needs to be assessed having regard to the fact or facts in issue in the trial the probability of which is said to be affected by the evidence under consideration: Fletcher at [34]. The trial judge must then determine whether the proffered evidence has significant probative value. The evidence must be "important" or of "consequence": R v Lockyer (1996) 89 A Cri m R 457 at 459 (Hunt CJ at CL). The tendency is a tendency to act in a particular way: R v Ford [2009] NSWCCA 306, (2009) 201 A Grim R 451 at [38].
34. If the trial judge assesses the evidence as having significant probative value, he or she must give consideration to the weight of any prejudicial effect arising from the evidence. The prejudicial effect is the danger of the improper use of the evidence: HML v The Queen at [12]. In O'Keefe v R [2009] NSWCCA 121 Howie J said at [60]: "But one of the difficulties in the present case is appreciating exactly what was the tendency being relied upon by the Crown as distinct from the general circumstances in which the tendency was displayed. As Simpson J noted in R v Nassif [2004] NSWCCA 433 at [51] "the more numerous the claims of tendency evidence, and the more specific, the stronger the probative value. And thus the more likely the admission of the evidence". But, of course, the converse is true. The more general the tendency relied upon, the less likely is it to have sufficient probative value to outweigh the prejudicial effect arising from propensity evidence generally."
35. lt is apparent that the more generalised the tendency' revealed by the proffered evidence, the less its probative value and the more significant its prejudicial effect.
36. When assessing the probative value of evidence the Court must be mindful of the possibility of concoction. However, the risk that the evidence has been concocted must be more than speculative: BP v R [201 0] NSWCCA 303 at [11 0].
37. In the present case the trial judge's reasons for admitting the proffered tendency evidence were brief. I have set them out in full below: "The Crown seeks to adduce tendency evidence which is set out in as 97 tendency notice, the one amendment to that notice being that paragraphs 13 to 14 of the statement of [IS] are no longer relied upon. This is a matter where the evidence sought to be led is from other young persons who have an association with the accused complaining of acts done to them, when they were of a certain age, that have not been charged. The complainant in the trial is now aged fifteen plus and the events that he complains of occurred when he was about nine years younger, eight or nine years younger, and essentially, except in regard to some issues as to complaint which was late, is his evidence alone. I accept that applying the test that is required to be applied by virtue of s 97 and s 101 requires the court to do a balancing exercise based on the particular facts of the matter under review. This particular case it is an almost classic circumstance of alleged child sexual interference. The Crown submitted, and I accept, that there is no need for an assumption that all such evidence is likely to be highly prejudicial. All evidence that the Crown leads in any case, of course, is prejudicial to an accused, or can be prejudicial to an accused, but that is not the test. The test is whether or not there is the likelihood of a fair trial, or whether there is the risk of an unfair trial by virtue of the admission of the evidence. Now the question of whether a trial is fair or unfair involves consideration not just of the accused but of both the Crown and the accused. The evidence that is sought to be adduced, is adduced to prove that the accused has or had a tendency to act in a particular way or had a particular state of mind. lt is evidence that could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings, namely the events complained of by the young person and, in that regard, it is a question of the capacity of the tribunal of fact to be able to find what is alleged rather than whether or not they are likely to so find, because that ultimately will be a matter for them. The evidence clearly has significant probative value and I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, given the directions that will need to be given to the jury when the evidence is called and in summing-up. Further, having heard the evidence this morning in regard to the issue of concoction, I am not satisfied that there is any real chance that the evidence of those witnesses has been concocted. So, in short, I grant that application."
38. His Honour did say at the time he delivered these reasons that he was conscious that his reasons were brief and "if it becomes necessary I'll give full reasons later." No further reasons for the decision were given.
39. The applicant was critical of his Honour's reasons and submitted that they failed to address critical issues. In particular, it was submitted that the trial judge did not make any assessment of whether the tendency evidence could rationally affect the facts in issue and questioned whether it could affect the issues as to whether the applicant had performed fellatio on the complainant.
40. It was further submitted that the trial judge failed to make any assessment of whether the tendency evidence had significant probative value. In support of this submission it was submitted that the trial judge failed to make an assessment of the "number of claims of tendency evidence", the specific or general nature of the evidence, whether it demonstrated a pattern or modus operandi, or the number of occasions of the particular conduct or what were the similarities or differences. It was submitted that there was no assessment of whether the Crown's submission that "the evidence pattern as described by the complainant displays a similar pattern" to that described by the tendency witnesses.
41. The applicant further submitted to this Court that there was nothing in the complainant's evidence from which it could be said that the conduct started with the applicant exposing himself and progressing to touching. Furthermore, it was submitted that it could not be said that the pattern of events described by the complainant displayed a similar pattern to that described by the tendency witnesses. Accordingly, it was submitted that the trial judge failed to undertake the balancing act required by s 1 01 (2) of the Evidence Act.
42. lt was submitted that if the trial judge had conducted the appropriate assessment it would have been apparent that: "a. The tendency was very general in that: i. The sexual interest was in young children, not even specific to gender. And, in fact, the tendency was to have a sexual interest in young females. ii. The acts of exposing his penis and touching young children on the genitals shows no particular or peculiar tendency other than a tendency common to anyone with a tendency to sexually assault a child. b. The conduct between the allegations supporting the tendency and the allegations of the complainant had very little in common and a significant number of differences as follows:
43. The following comparative table was provided: Tendency Evidence Complainant's Evidence Related to young females Related to a young male Occurred in the home of the witnesses Occurred away from the home of the complainant Substantially related to exposing himself No evidence of exposing himself in the way described by the tendency witnesses First incident simply exposing himself First incident involved physical contact including masturbation of complainant and forcing complainant to masturbate accused Exposing himself with progression to touching No exposing himself with progression to touching, rather directly to physical contact of a significant nature, touching Only one incident of touching A couple of days a week for 4 years A one off incident of touching on the outside of the clothes Touching directly and of a significant nature over years. Did not force/coerce touching of accused by witness Forced/coerced masturbation of accused by complainant Nothing more than a single episode of touching by hand Forcing the complainant to perform fellatio on the accused In the house Under the house In various areas in the house Always in the same spot under the house Not any attempt to lure to isolated area Took the complainant under the house away from others Nothing offered to be involved in sexual activity Offered lollies and chocolates to go under house Seemingly opportunistic and ceased upon leaving the house Seemingly planned, and attending each day for the purpose No mention of telling the witnesses not to say anything Told the complainant not to say anything

c. The evidence did not display common patterns of behaviour, nor a modus operandi. There was no similar system, in fact the systems (if there be a system) were wholly dissimilar. There were not common threads, other than the complainant and the witnesses were young, the incidents happened at about the same time and they happened at a place the accused was visiting."

1. In response the Crown emphasised that if there were apparent deficiencies in his Honour's expressed reasons they were as a consequence of the judgment being given ex tempore, for which appropriate allowance should be made. Although it was accepted that his Honour spoke in general terms including identifying "the events complained of by the young person" it was submitted that this reference was sufficient to confirm that his Honour appropriately identified the task he was required to perform. The respondent referred the Court to the analysis of these issues in BP v Rat [106]-[120):
2. Notwithstanding the allowance which must be made for the fact that his Honour was giving ex tempore reasons, I am satisfied that this ground of appeal must succeed. Although his Honour referred to the "evidence that is sought to be adduced" and identified the relevant questions to be "whether the accused has or had a tendency to act in a particular way or had a particular state of mind", his Honour nowhere indicates his understanding of that evidence and the particular aspects of it which he was considering. Furthermore, he nowhere identifies the tendency to which he has directed his mind.
3. In the circumstances of this case these matters required careful identification and consideration. The tendency evidence was confined to acts of sexualised exhibitionism toward young girls and an occasion when the applicant allegedly assaulted one of them. The character of these acts, beyond a generalised notion of sexual interest in young children, was not probative of the acts alleged against the applicant involving masturbation and fellatio with the young male complainant, such acts being alleged to have occurred repeatedly over years and in a secluded location under EN's house.
4. As against the marginal probative value of the evidence, its prejudicial effect was quite obviously high. If accepted by the jury, it would inevitably have painted the applicant in an unfavourable light with the clear suggestion that he was prepared to engage in an inappropriate and offensive sexualised behaviour towards young children. Although of minimal probative value, the prejudicial effect was significant.
5. In the present case, the relationship between the complainant and the tendency witnesses raised a possibility that they may have concocted their stories. Although the trial judge considered this issue, he resolved it by concluding that he was not satisfied that there was "any real chance that the evidence of those witnesses had been concocted". This suggests that his Honour assumed an onus on the defence to persuade his Honour that the evidence, at the least, may have been concocted. This was not correct.
6. This issue was considered by Hodgson JA in BP at [11 0] where his Honour said "the onus is on the Crown to negate the 'real chance' of concoction: see also R v OGO (No 2) [2000] NSWCCA 404, (2000) 50 NSWLR 433 at 74; R v F (2002] NSWCCA 125, (2002) 129 A Crim R 126 at [48].
7. To my mind, the reasons that his Honour gave provide an inadequate foundation for the admission of the evidence. Having regard to the facts in issue at the trial, in my opinion the evidence should have been rejected. However, I do not express any concluded view about the admissibility of the tendency evidence at any future trial. lt will be a matter for consideration by the trial judge who will no doubt bear these reasons in mind.

Ground 2

1. Apart from difficulties in relation to tendency evidence, the Crown adduced evidence at the trial from the complainant in which he alleged many other occasions of abuse by the applicant. The receipt of the evidence was objected to by defence counsel but admitted by the trial judge.
2. In his opening address to the jury the Crown Prosecutor said: "There is three other forms of evidence that you will hear in this trial. And let me deal with what we might call context relationship first. Now, as you can see on this document that [you've] been given, there are three specific offences, and you might think to yourself, and rational, common sense people would, that, well, all out of the blue, a bit odd, very strange. Other evidence that you will hear from [the complainant] is that going under the house and sexual contact between he and this 32 year old man was not an isolated incident. lt was part of the context it all happened in, their relationship. Perhaps if I try to explain it like this. No matter how good a painter I might be, if I simply paint a tree on that wall, at the end of the day, that's what it is. It's a tree. But when I paint all the background, the mountains, the clouds, the rivers, the birds and all of that, then you get the picture. So you see what this boy alleges in the context in which it happens. And it's relevant to other factors, and I'll say more about that at the conclusion of the trial. For example, naturally you might think, well, gee, wouldn't you be a bit surprised by this? Or wouldn't you say something? But would you, if it became just a day to day event for you, at five? So it's put to you in that manner so that you understand, in effect, the context that these three offences happened in, and the relationship between the boy and the man."
3. During the course of his summing-up the trail judge said: "After lunch I am going to give you some directions in regard to the evidence that was given by CLS and IS, because that is special evidence and evidence that has to be considered differently to the other evidence in the trial." (emphasis added)
4. On the resumption his Honour said: "There are two areas of evidence that in a way sort of overlap a bit. You have heard evidence given by [the complainant] that things happened to him on a number of occasions each week over a period of time. Of course you have to look at the period of time that relates to the charge, which is, for the first two matters, 30 April 2000 and 1 May 2000 (sic 2001 ), and for the last matter 30 April 2003 to 1 May 2004. So it is obviously clear from this document that you have that the accused is charged with one offence when [the complainant] says a whole lot of things happen over a period of time. That is one reason why the Crown charges the behaviour over a period rather than on a particular date. The other is, of course, that in that particular timeframe the crown cannot be any more specific as to a date. Now, that is not unusual. The fact that the charge is framed in that way is not unusual for offences like this, for all sorts of offences. Fraud offences, things of that nature, you often get that spread of dates. The purpose of that evidence is that it is there solely for the purpose of making the circumstances of the offences that you are concerned about understandable in the scheme of things. It helps explain and make known the whole of the relationship that is alleged between the complainant and the accused so that the matter that you have to decide can be seen in that overall context. lt may well be that you would be thinking in your mind whether or not or why would someone just assault someone out of the blue on one particular occasion, as the crown said, and then wait some time and then commit another offence? And it also helps perhaps explain why the complainant behaved in the way he did in his acceptance of that method of acting over a period of time and why he did not make a complaint until, as the crown suggests to you, he got to be about nine years of age and realised that it was not appropriate and refused to go there any further. Of course, you have got to be satisfied beyond reasonable doubt and accept that that indeed was the case. The other evidence, of course, that you have heard is evidence from IS and CLS. Now, they have given evidence about certain things that they say happened to them. Before you can use that evidence in any way at all you have to be satisfied beyond reasonable doubt that you accept it. Again, you have to make an assessment of the witnesses in that regard, scrutinise their evidence very carefully and have regard to what has been said about all the circumstances of that in the defence case. So you have to be satisfied beyond reasonable doubt that he did expose himself, according to IS, on a daily basis in the house, DA's house. when they were staying there, that is he and DA, and that he touched IS in the way that she alleges and on the one occasion that CLS alleges that he showed himself. So, first of all, before you can do anything with that evidence you have got to be satisfied beyond reasonable doubt that it has been proved. If you are not satisfied beyond reasonable doubt that that evidence has been proved, just forget about it. The second thing that you have to be satisfied of beyond reasonable doubt is that it proves what the crown says it is supposed to prove and the crown referred to that in his submissions to you. That is, the crown says, that that evidence. if you accept it has been proved beyond reasonable doubt, establishes a pattern of behaviour and a sexual interest by [the applicant] towards children and, more than that. a willingness to act on that interest that he has. Now, that is what the crown says that behaviour establishes. You have to be satisfied beyond reasonable doubt that in fact it does establish that behaviour. So there are two things you have to be satisfied of beyond reasonable doubt; that the alleged behaviour occurred, and that it has the effect that the crown says it has. If you are satisfied beyond reasonable doubt of that, it goes towards the likelihood of him behaving in the way that [the complainant] says he behaved. Now, it is very important to remember the fact that someone behaves in a certain way on one occasion can never ever prove beyond reasonable doubt that they behaved in a way on another occasion. That is just a matter of common sense. I will give you a more simple example. Someone who is seen speeding down the New England Highway at Murrurundi doing 150 kilometres an hour or something like that, that cannot be used as evidence to prove that they were speeding at Scone or Singleton unless someone is there to observe that and give an estimate of the speed. You cannot say because someone sped here they must have been speeding here. The same thing applies in this particular situation. As I said, being satisfied beyond reasonable doubt that those matters that IS and CLS spoke about occurred and being satisfied beyond reasonable doubt that it establishes what the crown says it establishes cannot of itself prove beyond reasonable doubt the accused committed the offences against [the complainant]. You have to look at that evidence and [the complainant's] evidence about that and, as I said to you, scrutinise that evidence with a great deal of care because it is one person's word against another's, and be satisfied beyond reasonable doubt that what he says is true and correct. You still must look at the evidence of the offences themselves. Is that evidence together with the evidence of the accused's state of mind, sexual interest, pattern of behaviour, sufficient to prove each of these particular charges beyond reasonable doubt? Or any one of them? The fact that someone has a tendency to behave in a certain way or have a particular state of mind does not, without other evidence, prove the elements of the crown case beyond reasonable doubt So remember that in regard to the evidence of IS and CLS before you can rely upon that evidence in the way that I have indicated you have got to be satisfied beyond reasonable doubt that it has been established." (emphases added)
5. This ground of appeal is not concerned with the admission of the "context" evidence but is confined to a complaint about the directions of the trial judge.
6. The directions which the trial judge gave to the jury suffer from a number of difficulties. A jury is confined in the use which it may make of evidence of other sexual acts admitted as "context evidence." lt may be used to explain the background to a particular act which is the subject of a charge. More commonly, it will be relevant to explain a lack of complaint by a young person. However, there is always a significant risk that the evidence may be misused. This risk was recognised by this Court in R v Baldwin [2004] NSWCCA 21 where Bell J at [59]-[61] said: "No attention was directed at the use, if any, to be made of the relationship evidence or the evidence of particularised uncharged sexual assaults. In R v ATM [2000] NSWCCA 475 this Court considered the consequences of a failure by a trial judge to direct in these circumstances. Howie J with whose judgment the other members of the Court agreed) said at [75] - [78]: 'lt is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was placed before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence: R v Beserick (1993) 30 NSWLR 510 at 16; R v Fraser(NSW Court of Criminal Appeal , unreported, 10 August 1998) at 28; R v Greenham [1999] NSWCCA 8 at [28]. Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v AH, above; BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; R v RNS [1999] NSWCCA 122. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as 'guilty passion' or 'sexual interest'. Further, generally it will be necessary for the judge to give warnings that they should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment or reason that because the accused may have done something wrong to the complainant on some other occasion that he must have done so on an occasion which is the subject of any charge: R v Greenham, above, at [28]-[29] approving the directions given in R v Beserick, above, and R v Wickham (NSW Court of Criminal Appeal, unreported, 17 December 1991 ). I believe that the directions given by the trial judge fell well short of what was requi red in this case. The admission of evidence of this nature carries with it the real risk that the jury might misuse it. The limited purpose for which the evidence was placed before the jury and the limited use that could be made of it by them during their deliberations should have been brought home to the jury in unequivocal terms. The trial judge did not do so in this case during the summing up. Nor did he explain to the jury the basis of its admission when the evidence was first placed before them during the examination of the complainant: R v Beserick, above, at516.' In R v Dixon [2001] NSWCCA 39 this Court again emphasised that it is the duty of the trial judge to direct the jury as to the purpose for which evidence of uncharged acts of sexual misconduct has been led. In this case there existed a very real risk that the jury might reason that the appellant was guilty of one or more of the counts charged against him on the basis of an acceptance that he was a person given to sexually assaulting JL on a daily, or near daily, basis. The circumstance that the jury returned a verdict of guilty with respect to the offence charged in count 17, when it is common ground that JL gave no evidence in support, may be thought to underscore the point."
7. In JDK v R [2009} NSWCCA 76, (2009) 194 A Crim R 33 I emphasised the significance of the portion of the model direction on this issue provided by the Criminal Trial Bench Book which suggests that a trial judge should indicate to the jury: "You must not reason that, because the accused may have done something wrong to the complainant on another occasion, he must have done so on the occasions charged."
8. I said on that occasion that this was an important direction. This remains the case.
9. In the present case the trial judge did not give the jury a direction which confined the use which it could make of the "context evidence." There was no direction that it could not be used as tendency evidence. The jury were not told they could not substitute the evidence of other sexual activity for the specific activity which is the subject of the charge in the indictment. They were not told they could not reason that because the applicant may have done something wrong to the complainant on some other occasion that he must have done so on the occasion that is the subject of any of the charges.
10. In the circumstances of this case the failure to incorporate these directions has, in my opinion, led to a miscarriage of justice.
11. The necessity for a warning in relation to the use which could be made of context evidence was made more significant by the fact that his Honour gave the jury directions in relation to tendency evidence immediately following the directions in relation to context evidence. Furthermore, his Honour effectively combined the two areas in his summing-up, commencing by a reference to the fact that there were two areas of evidence that "in a way sought overlap a bit". There was a real possibility in approaching the matter in this way that the jury would have misused the context evidence as tendency evidence.
12. The directions that the trial judge was required to give should have identified for the jury that they were required to be satisfied of the count on the indictment and not substitute context evidence for evidence of the charged offence. The jury should have been informed that, although evidence of other acts was admitted it, could be not used as a substitute for the evidence of the acts actually charged.
13. In my opinion, Ground 2 must be upheld together with Ground 1. An order that there be a new trial should be made.

Ground 3

1. A verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence: section 6(1) of the Criminal Appeal Act 1912. Recently, in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11]- [14], the High Court set out the test to be applied when considering an appeal on the basis that a verdict was unreasonable: The task of the Court of Criminal Appeal lt is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is 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". This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. lt is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." (footnotes omitted)
2. The applicant submitted that there was a combination of factors which supported the conclusion that the verdicts were unsafe. They were identified in the following terms: a. The generic nature of the evidence of the individual charges:
3. The complainant's records of interview describe behaviour by the applicant over a period of time. The nature of the description of the acts that gave rise to the charge appear to be of a generic nature. ii That is, rather than being evidence of a particular act or acts, it is evidence of the type of acts the applicant used to undertake. iii. All that then occurs is that there is then questions and answers that link the first time that it occurred to some dates, and the first time that the oral sex occurred to some dates. iv. In fact, an attempt by the police officer to obtain evidence of particular incidents, did nothing more than obtain the generic evidence already described. v. In order to find the applicant guilty there needs to be evidence of a particular offence. While there is some evidence of the acts, the evidence is so vague as to lead to the conclusion that the jury should have experienced a doubt. b. The fact that the complainant could not say whether the applicant was circumcised: i. On the complainant's version, for a period of 4 years, and on one version a couple of days a week for 4 years, the applicant molested the complainant. ii. The applicant made the complainant masturbate the applicant, and then over a period of perhaps a year made the complainant perform fellatio on the applicant (the first time being when the complainant was 8 years and not stopping until the complainant was 9 years). iii. The complainant was aware of what circumcised means. iv. lt seems almost impossible to comprehend, even though the complainant was young, that the type of behaviour occurred as described by him, without him becoming aware of whether the applicant was circumcised. v. The answer to the police seems also to call into question the allegations he was making. He states, when asked whether the applicant is circumcised, "I don't know" .... "That's disgusting". vi. lt is very difficult to comprehend how he would not know, and when asked, having just given a statement of how he was forced to perform fellatio on the applicant, describe the question as "disgusting".
4. The evidence of the complainant about the circumstances and consistency of abuse: i. If the incidents were occurring as described, it is very difficult to conceive that no one noticed, or said anything. ii. This is beyond the usual argument that someone would have noticed child sexual abuse. The circumstances in which it is alleged that these incidents occurred, the regularity of the incidents, the length of time over which these incidents occurred make it highly unlikely no one noticed the unusual behaviour of the applicant and the complainant going under the house for a half an hour or so a couple of times a week for 4 years. iii. That is particularly so because the complainant indicates he used to go to the house to meet up with his friends. On his version the applicant would have taken him away from his friends. iv. In fact, when that was put to him he said: "The other kids told me to go under the house with him." v. That was something that the complainant never raised with the police, and seems, in the circumstances of this case, to be a complete fabrication. vi. Further his evidence was that he was enticed under the house with the promise of lollies and chocolate, however, at no time was he ever given these. That seems to fly in the face of him then continuing to go under the house with the applicant, perhaps on the promise of lollies and chocolates which, in 4 years, never eventuated. d. The lack of complaint: i. The complainant stated that the abuse stopped when/wouldn't go back up there again 'cause I realised what he was doing. ii. He further said he didn't say anything because he was too scared. That is even though there was no allegation of any threats by the applicant, simply a comment to the complainant not to say anything. iii. The complaint is made some 5 years after the last possible incident. iv. While there may be reasons for a late complaint, the complaint does not assist the complainant in consistency of conduct. e. The evidence of Constable Morrison: i. The complainant was shown a number of photos of the house and under the house. The first group of photos was exhibit 2 and tendered during the course of the complainant's evidence in chief. ii. The Crown asked questions about the area in which it was alleged these incidents occurred. The complainant stated that it was always in the same spot. iii. The complainant stated that the area where the assaults occurred was not shown in the first group of photos. iv. He then gave evidence that the assaults took place behind the bricks shown in photo 1 of exhibit 2· v. He gave evidence that the place was behind the bricks, and in fact, that there was another doorway there. vi. He was then asked to mark the photo showing the area, that is, the area behind the bricks. vii. The complainant was then shown the photos that were ultimately tendered through Constable Morrison and made exhibit 3. They were 1 0 photos of the underneath of the house. viii. The complainant gave evidence that the area where the assaults took place was not shown in any of those photos in exhibit 3. ix. Constable Morrison gave evidence about his investigation under the house. In particular he gave evidence that there was only one doorway to the space. He also described the photos that he had taken. He drew a map of the area underneath the house which was tendered and marked exhibit 4. He was then shown the photo marked by the complainant, with a cross on the wall, supposedly marking an area behind that wall that the incidents occurred. He believed that was depicted in photo 8 in exhibit 3. x. In cross-examination he was taken to the photo marked by the complainant. He gave evidence that he photographed all the areas under the house. He gave evidence that there were no hidden areas under the house· xi. The evidence of Constable Morrison confirms that the area under the house is a single area. There is not a further area behind the bricks. There is not a further door to a further area behind the bricks. The photographs showed the entire area under the house. xii. The description given by the complainant of where the incidents apparently took place was clearly wrong. In fact, so wrong, it lends to it being a fabrication, rather than simply reliability. xiii. The complainant gave evidence that for 4 years, twice a week, he was molested in the same spot under the house. The evidence comfortably pointed to the fact that he had very little knowledge of the area under the house, and no ability at all to point out the spot. xiv. That simply cannot be consistent with the evidence he gave in support of the allegations. lt is so fundamental as to raise a doubt about his evidence. f. The lack of support otherwise for the complainant's evidence.
5. lt was submitted that the combination of these matters raise some fundamental difficulties with the complainant's evidence, to the extent that the jury should have had a reasonable doubt about the counts on the indictment. The applicant emphasised that the complainant's evidence, apart from the tendency evidence, received very little support from the other evidence. lt was accepted that there was some limited support about the fact that children used to gather at the house at EN's house, although it was suggested that that fact in itself militates against the abuse having occurred.
6. lt was submitted that the complainant's evidence does little to support the complainant's version of the events, notwithstanding the Crown's submission that on eight occasions he gave a consistent account. The accounts were exceptionally generic, and came years after the alleged offences.
7. I have reviewed the entirety of the transcript of the trial. The submission that the evidence was of events which allegedly happened some years ago is, of course, correct. However, it is not unusual in these circumstances for the evidence to take on a generic character, particularly where the events were allegedly repetitious and when the complainant was a young child. The counts pleaded against the applicant were carefully identified by the prosecution as having occurred within a time frame of one year. They allegedly first occurred when the complainant was five years of age. Count 3 was also alleged to have occurred within a time frame of one year. This count was of particular significance, for it was alleged to be the first occasion on which the complainant was required to perform fellatio on the applicant.
8. In the course of his evidence the complainant was reminded of the fact that he had said that the applicant kept touching him and was asked "can you tell me when was the first time this occurred." His answer was "when I was five." He gave evidence that the touching was to his penis.
9. Shortly thereafter he said that the applicant used to "wank me" he also referred to it as "fricking." He said that the applicant did it to him and "he'll make me do it for him". He also said that the applicant "made me suck his dick".
10. The complainant said that he first was made to "frick him off' when he was five, being "the first time he started it." He said that the first time the applicant made him perform fellatio was when he was eight years of age, at which time the applicant would also "make [the complainant] frick him".
11. This evidence provides the foundation for each of the counts. The act of indecency in count 1 was requiring the complainant to touch the applicant's penis, the assault in count 2 was constituted by the applicant touching the complainant's penis. The third count was constituted by an act of fellatio.
12. All of this evidence was capable of being accepted. The complainant's evidence reveals that he was an immature and not particularly articulate individual by the time he gave his evidence. However, he was firm in maintaining under cross-examination that the relevant events occurred within the identified time frame. At no stage did he concede that his recollection was faulty or proffer any answer which would suggest that his evidence was not capable of being accepted. The jury had the benefit of seeing him give evidence and also seeing the applicant give evidence. The fact that the evidence was at times given in a generic fashion does not diminish its force having regard to the nature of the charges.
13. As the applicant emphasised during the course of his cross-examination, the complainant was asked whether he knew what to be circumcised means. He responded saying "the foreskin on your cock's like cut off'. He was then asked whether the applicant is circumcised, to which he responded "I don't know". When the questioner said "All right", the complainant said "that's disgusting". The latter response is difficult to interpret. It may have been a reference to being asked the question about the applicant's penis or perhaps a reference to the acts which he alleged the applicant had required him to participate in.
14. Given that the complainant indicated that he was aware of the nature of circumcision and his allegation that the various sexual acts occurred many times over a lengthy period it may be expected that he would have been aware whether the applicant had been circumcised. However, it is relevant that he was being asked these questions some years after the events occurred, by which time he was aware of the nature of circumcision. It would be unlikely that he would have been aware of it at the time that the offences allegedly occurred.
15. This issue was not explored beyond the exchange to which I have already referred. The jury were aware of this evidence and it did not cause them to have a relevant doubt as to the veracity of the complainant's evidence in respect of particular counts.
16. The evidence makes plain that the complainant had learning difficulties and struggled with his schooling. It is also apparent that he was bullied. Although described by his father as "a very quiet mannered child", it would seem likely that his intellectual capacity and personality made him a potential target for a person seeking sexual involvement with a young child.
17. The overall impression from the evidence is that at the relevant time after school a number of kids played at EN's house without much adult supervision. It was in this context that the complainant said that he had been told by the other children to go under the house with the applicant. It was part of a sequence of responses in which the complainant made plain that the other children tended to "bully" him.
18. With respect to the "lollies and chocolates" evidence the jury would, in my opinion be entitled to put this to one side. Although he said that this was the means by which he was enticed by the applicant he freely admitted that no lollies or chocolates were ever provided. This portion of his evidence reads with a compelling frankness and no doubt as an older person the complainant is embarrassed at admitting that he had been enticed there by the applicant.
19. With respect to the submission concerning lack of complaint, it is a notorious fact that young children do not complain of sexual assault until significantly later in their lives. The complainant proffered the reason for his reticence being that he was concerned that his father may impose extreme violence on the applicant if he was aware of the circumstances. The jury were given careful instructions in relation to this aspect of the matter and, in my opinion, there is no reason to doubt the complainant's credit because of his failure to complain at the time that the events occurred.
20. With respect to the location where the complainant said the relevant events occurred, the evidentiary sequence was that the complainant marked with an "x" the brick wall behind which he said it was possible to access the area in which there was a door where he would go through to get to the area where the assaults occurred. Constable Morrison said that one of the photographs (photograph 8 in exhibit 3) showed the area behind the brick wall marked by the complainant. On the relevant photograph an opening can be seen which, when considered with the diagram prepared of the area, appears to lead to another area depicted in photograph 9. The photographs were taken with the benefit of artificial lighting which was not present when the alleged assaults occurred.
21. Although Constable Morrison gave evidence that the area under the house was a single area it is apparent from the photographs that as one fi rst goes under the house a wall extends out from the exterior wall of the building under the premises that would give the appearance of separating the spaces underneath the house. Once a person is under the house there are pillars which support the floor joists and which of themselves could in dim lighting give the appearance of providing door openings. lt is a common human experience that when a child is asked to recollect the physical surroundings he or she encountered at a young age it is almost inevitable that the appreciation of the physical arrangements will be different from the reality. lt is common experience to perceive areas to be larger and objects also of quite a different size to what they are in fact. This is the inevitable consequence of the small stature of a child compared with their actual physical surroundings.
22. The complainant was shown a series of photographs underneath the house which appear to provide a continuous view through the foundation pillars from the outside. His evidence was that the sexual assaults occurred behind a wall underneath the house which blocked the view from the outside. lt is conceivable that the complainant would have perceived this to be a separate space or room when he was a young child. I do not believe his evidence in this respect impacts upon his credibility or reliability.
23. The applicant submitted that there was a lack of support for the complainant's evidence which should have led the jury to refuse to accept his complaints. However there was abundant evidence of the usual routine of the children and their frequent gatherings at EN's house after school had finished. There was also significant evidence from various witnesses that the applicant was present at the premises and lived there at times. The applicant rejected this evidence and said that he had never lived at the premises and rarely went there. There was evidence from his sister and niece to the effect that he never lived at the premises and rarely visited them and then only at lunchtimes but never in the afternoon when the children were around playing. Given the substantial body of evidence to the contrary, in my opinion the jury were quite entitled to reject this evidence. The evidence supporting the applicant's position may well have been viewed by the jury as fabricated.
24. I have reviewed the entirety of the evidence and given particular consideration to the submissions that the applicant has made. Even if after reviewing the evidence I had a doubt as to whether the charges had been proved beyond reasonable doubt, the jury had the benefit of seeing the complainant, other witnesses and the applicant give evidence. Any doubt which I may have had would for this reason be capable of resolution. This ground of appeal should be dismissed.

Orders

1. I would make the following orders:
2. Leave to appeal granted and appeal allowed.
3. Verdicts of conviction quashed.
4. Order a new trial.
5. HIDDEN J: I agree with McClellan CJ at CL.
6. HISLOP J: I agree with McClellan CJ at CL.

Amendments 02 December 2016 - publication restriction removed - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2016