"T" v The Queen [2000] WASCA 153

Court of Appeal (WA)|2000-06-02|Before: Mr J, Miller J, Pidgeon J, Wallwork J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : "T" -v- THE QUEEN [2000] WASCA 153

Criminal law - Sexual offences - Complaint - Not made at earliest opportunity - Led in evidence - Admissibility - Conduct of defence rendering evidence admissible - Propensity evidence - Evidence of uncharged acts - Adequacy of warnings to jury in relation to such evidence - warnings - Adequacy of

Evidence Act, s 36BD, s 50

Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996

Schuster v R, unreported; CCA SCt of WA; Library No 970180; 23 April 1997

Trescuri v R [1999] WASCA 172

R v Wright [1999] VSCA 145

1 PIDGEON J: I agree with the reasons of Miller J and the orders he proposes.

2 WALLWORK J: I agree with the reasons and conclusions of Miller J. There is nothing I wish to add.

3 MILLER J: The applicant was charged on an indictment dated 6 April 1998 with 11 counts alleging sexual offences. On 29 January 1999 in the District Court at Kalgoorlie he was convicted of one count of unlawfully and indecently dealing with a child under the age of 13 years and two counts of indecently dealing with a child aged between 13 and 16 years who was then under his care, supervision or authority. In relation to other counts on the indictment, there were three verdicts of not guilty, three counts in relation to which the jury was unable to reach agreement, and one in which there was a verdict of acquittal by direction. A fresh indictment was presented on 20 September 1999 in which the applicant was charged with two counts of sexually penetrating a child between the ages of 13 and 16 years who was then under his care, supervision or authority and one of sexually penetrating a child between the ages of 16 and 18 years who was then under his care, supervision or authority. These were the three counts on which the jury had been unable to agree at the first trial. The trial on the indictment of 20 September 1999 was held in the District Court at Kalgoorlie between 20 and 22 September 1999 and the applicant was convicted by the jury of each of the three counts he then faced.

4 The applicant seeks an extension of time within which to appeal the verdicts of 29 January 1999, his notice of appeal being dated 12 October 1999. The extension of time is sought on the ground that counsel preparing for the second trial on perusal of the transcript of proceedings of the first trial formed the view that evidence which had been allowed in the first trial in relation to "recent complaint" was prejudicial to his trial. The grounds of appeal against conviction are:

(1) the verdict of the jury was unsafe and unsatisfactory as inadmissible evidence of complaint by the complainant was adduced in evidence by the prosecution.

(2) the learned trial Judge erred in the exercise of his discretion in admitting the relationship evidence of uncharged sexual acts and, further, having done so, failed to adequately direct the jury on the use that could be made of such evidence.

5 In relation to the applicant's conviction on 22 September 1999 the applicant appeals to this Court on the following grounds:

"1. That the learned Trial Judge erred in law in that he:-

(i) inadequately instructed the jury in the terms of an appropriate Longman direction;

(ii) erred in admitting evidence of allegations of previous sexual misconduct between the parties while none of it was truly 'similar fact' evidence, but rather evidence of other offences on other occasions in the absence of any striking similarity.

(i) in that the direction by the learned Trial Judge to the jury was inadequate in the terms of an appropriate Longman direction;

(ii) because of the prejudicial effect of the vast amount of so-called 'relationship evidence' which was in effect propensity evidence;

(ii) in that the Appellant was wrongly cross-examined by the Prosecutor on a particular charge which was the subject of a previous acquittal;

(iv) in that the learned Trial Judge erred in admitting evidence of allegations of previous sexual misconduct between the parties while none of it was truly 'similar fact' evidence but rather evidence of other offences on other occasions in the absence of any striking similarity.

3. The learned Trial Judge erred in the exercise of his discretion in admitting the relationship evidence of uncharged sexual acts and, further, having done so, failed to adequately direct the jury on the use that could be made of such evidence."

The second appeal requires no extension of time as the notice was filed within the statutory period. The ground identified in par 2(iii) was not pursued on the hearing of the appeal.

6 An application for leave to appeal against the sentences imposed on the three counts of unlawful and indecent dealing of which the applicant was convicted at the first trial (CCA 44 of 1999) was abandoned.

7 The Crown case against the applicant on the three counts of which he was convicted at the first trial was that in 1991 the complainant, who lived with his mother in Boulder, had joined a Kalgoorlie scout group where he met the applicant, who was a scout leader. He was befriended by the applicant and when his mother was on holidays he stayed at the applicant's house and ended up staying there permanently. Count 1 was an allegation that between 31 December 1991 and 14 November 1992 at Boulder, the applicant unlawfully and indecently dealt with the complainant by masturbating the complainant, he then being a 12-year-old schoolboy in year 8. He testified that he had been drinking with the applicant and smoking cannabis with him and was awoken by the applicant who was masturbating his penis and fondling his testicles. Count 3 on the indictment alleged an indecent dealing at the applicant's house at a different address in Boulder to which the applicant and complainant had moved. This was alleged to have occurred on a date unknown between 31 December 1992 and 1 January 1995 when the complainant was lying on his bed in his own room and was approached by the applicant, who touched his penis on the outside of his shorts by rubbing his hand up and down his penis. Count 4 on the indictment was an incident which allegedly occurred about three months after that the subject of count 3. It was alleged to have occurred on a date between 31 December 1992 and 1 January 1992 at Boulder and, in this instance, the complainant was in his room on his bed after having smoked cannabis with the applicant. The applicant walked into the bedroom, sat on the complainant's bed and started to touch the complainant's penis, reaching into his pants and handling it. Although the complainant tried to get away the applicant pulled him down and started to masturbate him.

8 In opening the case to the jury the Crown prosecutor informed the jury that they would hear evidence that in August 1997 the complainant had told a friend named Kelly Liddell that the applicant had been sexually molesting him. It was also said that in October 1997 the complainant had told his brother that the applicant had been molesting him and some days later the complainant had attended at the Kalgoorlie police station where a complaint was made to detectives. No objection was taken by counsel for the applicant to the prosecution opening in this way and when evidence of the complainant's complaint was led, there was again no objection. That evidence came from the complainant, who said he had not immediately told anybody about the offences committed by the applicant because he was too scared to do so, but on an evening in August 1997 when Kelly Liddell was at his house, he told her what had happened. He described what he had told her as being what "Peter had done". He also testified that on or about 30 September 1997 he had told his brother Casey in the backyard of his brother's house what "Peter had been doing to me". Shortly thereafter he told his mother and then rang his father in Adelaide to say what had happened.

9 Evidence was led from a number of witnesses about these complaints. Minter Williams gave evidence that she was present in the complainant's room in Moran Street, Boulder with Kelly Liddell when the complainant said that "Peter [T] or [T] was molesting him". She said that he was very upset "crying, shaking". Ms Liddell testified that she, Minter and the complainant were all taking when the complainant turned around and said that "Peter molested him when he was younger and he just became very upset and angry and started crying". Casey [T] testified that in the back laneway where the party was being held, the complainant got really upset and "came out with being tampered with and all that stuff ... (saying) he was molested by Peter [T]".

10 During the course of the trial counsel for the applicant cross-examined the complainant vigorously on the subject of complaint. It was put to him that there were policemen at camps where incidents had occurred and yet no complaint had been made; his mother was not told; various other named persons were not told; counsellors at school and the teacher at school were not told and he had not gone to a doctor. It was suggested to him that what he had described simply had not happened. He was asked why he had not told his mother and even when he eventually did tell his mother, why he had not told her the full story. The applicant testified that the complainant had warned him at some stage that he was "a child molester and I am going to tell everybody" and basically put forward a defence that the complainant had got upset with him, knew that he (the applicant) had been molested as a child, and had used this as a weapon against the applicant on a regular basis, telling him that unless he did what he wanted and unless he let him do what he (the complainant) wanted to do, he would "make his life difficult, saying 'you will pay' ".

11 The learned trial Judge dealt in his charge to the jury with the evidence of the complaints which the complainant had made. His Honour made it quite clear that no complaint had been made by the complainant immediately after the events which were the subject of the indictment. He gave a direction which explained how evidence of complaint might be used in those circumstances and also pointed out to the jury that lack of a complaint did not mean that the offence had not been committed. The standard direction in relation to the reasons why a complaint might not be made was given. His Honour then made specific reference to the manner in which the jury was to deal with the complaint evidence. He said:

"The evidence of the doctor and of various other family members and friends about complaints having been made is not evidence of the fact that the things complained about occurred. It is clearly second-hand evidence and it is not evidence that you can use as directly supporting the crown case."

His Honour's reference to evidence of the doctor was a reference to evidence of Dr Michael Civil, who testified that on 10 June 1997 he had examined the complainant at Kalgoorlie Regional Hospital in relation to a complaint of sexual assault. This evidence was relevant to the three counts of alleged sexual penetration in relation to which the jury was unable to agree at the first trial but of which the applicant was convicted at the second trial.

12 Counsel for the applicant complains that the learned trial Judge erred in law in failing to tell the members of the jury that evidence of complaint (which his Honour did not detail) having been adduced, did not constitute "probative evidence". That complaint is not, in my view, made out. The learned trial Judge did identify what evidence it was that he was speaking of and impressed upon the members of the jury that it was "second hand" evidence and unable to be used as evidence in support of the Crown case. However, the real question which is raised in relation to the complaint evidence is whether it should have been admitted at all. The principles upon which evidence of complaint is admitted in sexual cases are well established. In Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, Barwick CJ (at 466 and 472) set out those principles as follows:

"... evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped: that is to say, it is admitted as matter going to her credit (see Reg v Lillyman, per Hawkins J; Sparks v The Queen.

The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence."

13 The complaint to be admissible must be made as speedily as could reasonably be expected. Such was established almost a century ago in R v Osborne [1905] 1 KB 551 where Ridley J said (at 561):

"We are, at the same time, not insensible of the great importance of carefully observing the proper limits within which such evidence should be given. It is only to cases of this kind that the authorities on which our judgment rests apply; and our judgment also is to them restricted. It applies only where there is a complaint not elicited by questions of a leading and inducing or intimidating character, and only when it is made at the first opportunity after the offence which reasonably offers itself."

14 Many cases have since been decided on the question of what constitutes a complaint made as speedily as can reasonably be expected. J D Heydon in Cross on Evidence, 5th Australian ed, at par 17270 rightly warns against the utility of perusing the cases too closely, saying:

"Lord Goddard CJ has stressed that this, too, is a matter concerning which the trial judge has a complete discretion provided the trial judge applies the principle that the complaint must be made as speedily as can reasonably be expected. A complaint made as long as a week after the event in question has been admitted and it is settled that the mere fact that the complaint might have been made to others before it was made to the witness who narrates it in court does not prevent it from being received in evidence.

Two or more complaints may be proved, and the fact that the prosecutrix only deposed to one does not prevent proof of the others by the persons to whom they were made, so long as each of the complaints can fairly be regarded as having been made at the first reasonable opportunity after the offence. But on occasion the requirement of complaint at the first reasonable opportunity will prevent proof of a complaint (at least as a complaint, as opposed to a statement rebutting invention, for example) subsequent to the first complaint.

Reasonableness is to be judged by reference to the sensitivities of the particular complainant and the circumstances in which the particular complainant was placed at the time."

15 In Suresh v R [1998] HCA 23; (1998) 153 ALR 145, the appellant was convicted of a number of sexual offences against the daughter of friends, those offences having occurred between December 1990 and March 1992 when the complainant was aged 8 and 9 years. There was evidence that in October 1992 she had told some of her school friends that she had been sexually abused by her uncle and evidence was given at trial by those friends confirming her account of the complaints. No objection was made to the admission of the evidence. Gaudron and Gummow JJ revisited the reasons for admissibility of evidence of complaint, saying (at [4]):

"Evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. It is admissible because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false. It follows that evidence of complaint is only admissible if it is evidence of early complaint or, as is usually said, of 'recent complaint'. And it is admitted not as evidence of the facts in issue, but as evidence of consistency which buttresses the credit of the complaint.

As Gaudron J explained in M v R, the assumption that the victim of a sexual offence will complain at the first reasonable opportunity is an assumption of doubtful validity, particularly in cases of child sexual assault. And it is an assumption that is now frequently called into question, including by directions to the effect that there may be good reason why a person would delay in making a complaint."

16 McHugh J was of the view that it was difficult to accept that the evidence admitted was properly admissible as evidence of recent complaint, having regard to the six month delay and the apparent existence of reasonable opportunities to make a complaint. His Honour pointed out, however, that counsel for the appellant had plainly wanted the evidence to be admitted. Kirby J confirmed that by authority of the High Court, whether a complaint is made at the earliest reasonable opportunity is an important consideration in determining its admissibility. His Honour did not consider the case to be a suitable one in which to explore further the point made by Gaudron J in M v R [1994] HCA 63; (1994) 181 CLR 487.

17 Where for tactical reasons counsel for an accused person has allowed evidence of complaint to be admitted, notwithstanding that it cannot be categorised as "recent complaint", different considerations will apply. In Suresh v R (supra), McHugh J (at [17]) put it this way:

"It is difficult to accept that the evidence was properly admissible as evidence of a recent complaint having regard to the six month delay and the apparent existence of reasonable opportunities to make a complaint. But counsel for the appellant plainly wanted the evidence to be admitted. The statements that the complainant made to her school friends provided a strong foundation for the appellant's claim that the complainant's evidence implicating him could not be accepted because she had made an earlier inconsistent statement implicating her 'uncle'. The appellant contended that he was not the person implicated. Even if the trial judge had rejected evidence of the complaint in the complainant's evidence-in-chief, counsel for the accused would have brought the statement out in cross-examination on the basis that the complainant had made a prior inconsistent statement concerning the offence."

18 In the present case, counsel did cross-examine the complainant to the effect that he had not made complaints to persons at the earliest opportunity as would have been expected had the alleged offences occurred. The applicant himself testified that the complainant had warned him that unless he did what he (the complainant) wanted, he would tell everybody that he (the applicant) was a child molester. The relevant passage from the applicant's evidence is as follows:

"I would have the neighbours' kids across the road - Linda Axell, as he said, was his girlfriend, her brothers, Adrian Duxworth, Adam Cockburn and a number of other people and my house basically was - if I had have put a turnstile on the back door, I would have made money but - and I would say to Clinton, 'Look, I've asked you not to do this.' 'If you don't let me do what I want' - and then he would get upset because I would become emotional because I just couldn't cope with all these people. I needed just some time to me. He would make fun of it and then roar up and down the street with his mates and they would all be shouting and Clinton would be, 'Yeah, you're a child molester and I'm going to tell everybody,' and it became very stressing to me."

19 The cross-examination of the complainant and the testimony of the applicant suggests that it was part of the defence case that the complainant had made unfounded complaints that the applicant had interfered with him, and made them well after the time of the alleged events, doing so to "get back at" the applicant. Everything about the way in which the trial was conducted suggests to me that a conscious decision was made by counsel for the applicant to let in evidence which would ordinarily be inadmissible (although cf Suresh v R per Gaudron and Gummow JJ at [5]). In my view the applicant is bound by the way in which his counsel conducted the trial in this regard. I respectfully adopt what Kirby J said in Suresh v R at [54]:

"Given the adversarial nature of our legal system, it is ordinarily necessary to hold a litigant to the way in which the case is presented by that litigant's legal representatives. This is true of criminal as well as of civil litigation. In a criminal trial, a judge has a duty to put to a jury any basis upon which they might find for the accused, whether or not that basis has been raised by the accused's legal representatives. This duty lies in reserve. In a sense, it helps to ensure against oversight, mistake or unevenness in the quality of legal representation which is an unavoidable feature of any trial system. That notwithstanding, the general rule is that, particularly in a criminal trial, a judge must be extremely cautious before intervening. One reason for such restraint is that, while the trial is proceeding, the judge may have insufficient materials upon which to understand why a particular course has been adopted. Ordinarily, it will be presumed that legal representatives will decide upon trial tactics in the best interests of their client and, in important matters, upon express instructions. Out of an appreciation that serious mistakes can sometimes arise from incompetence, ignorance or inexperience, courts of criminal appeal have developed rules to safeguard accused persons from the risk of miscarriage of justice where serious default on the part of legal representation is shown. However, this does not mean that every tactical decision, considered with hindsight to have been misjudged, opens the door to a ground of challenge to the jury's verdict. Such a rule would be intolerable and unworkable. It would seriously undermine the finality of litigation which is important in criminal as it is in civil trials. All of this was said, in terms which I would accept, by the Full Court of the Supreme Court of Victoria in Re Ratten, and recently endorsed by the Court of Appeal of that State in R v Miletic:

Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and, if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice.

In conformity with this conception of fair trial, if an accused person can show that he has been prevent by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present ... then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice.

But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above.

I agree that the fundamental question remains whether a conviction 'involves or has brought about a miscarriage of justice'. Neither the proof that the accused was represented by competent legal representatives nor that a conscious forensic choice was made relieve the appellate court from considering the claim that a mistake has occurred which has produced a miscarriage of justice. But that conclusion will rarely be reached where the defence has been conducted competently. It will be even more rare when the conduct complained of involved a forensic choice, consciously elected with the prospect of perceived advantage, but the peril of risks to the accused."

20 In my view, the evidence of the complainant's complaints, although not strictly evidence of a complaint made at the first reasonable opportunity, having been admitted without objection and having been utilised by the defence as part of its case, no objection can now be made by the applicant in relation to it. I would therefore dismiss the ground of appeal in that regard.

21 The second ground of appeal from the first trial relates to the learned trial Judge's directions on which is termed "antecedent relationship evidence". During the course of the complainant's testimony, he gave evidence of a number of incidents of sexual assaults additional to those contained within the indictment. When asked how often the applicant had masturbated him whilst he was in the Burt Street property, he said it was "twice or three times a week". When asked how often he was anally penetrated by the applicant's penis, he answered "twice or three times a week" over a period of a year. He also testified that he had performed sexual acts on the applicant at the Burt Street property. The learned trial Judge dealt with this evidence in his charge to the jury in the following way:

"You have heard evidence of a course of conduct, what is called a relationship - a course of conduct of sexual dealings between the accused and the complainant over a period of 4 or 5 years. If you are satisfied beyond reasonable doubt that there was such a course of conduct, then you can use that evidence of that course of conduct to understand the relationship between the accused and the complainant, but you must not then assume that the offences the subject of the specific counts on the indictment were committed. You don't move from general evidence which you accept to proof of the specific events that have occurred.

The crown must prove beyond reasonable doubt that each count considered separately was committed. If in any or all of the counts it has failed to do so, then the proper verdict on each such count is not guilty, even if you are satisfied that there was a general sexual relationship between the accused and the complainant - "

22 The adequacy of directions given on "relationship evidence" has been the subject of numerous recent decisions in this Court. In Cook v The Queen [2000] WASCA 78, Anderson J (at [63]) summarised the present state of authority as follows:

"63 These grounds raise for consideration, yet again, the sufficiency and correctness of directions as to the use that may and may not be made of relationship evidence, which, in this case, was the general evidence of uncharged sexual acts.

64 I use the expression "relationship evidence" only for convenience, recognising that in sexual cases it is an incomplete description of evidence of sexual molestation extraneous to the offences charged. As cases such as Gipp v The Queen (1998) 72 ALJR 1012 show, this kind of evidence is often called similar fact evidence, propensity evidence, guilty passion evidence, tendency evidence and background evidence: see especially per Kirby J at 1040 - 1041. See also R v S (1998) 103 A Crim R 101 per Thomas JA at 110.

65 The rule which excludes evidence showing nothing more than that the accused has a criminal disposition is fundamental: Thompson v Rex [1918] AC 221; R v Sims [1946] 1 KB 531; Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 116. Many cases have now laid it down, however, that if propensity or dispositional evidence has a function which goes beyond proof of mere bad disposition, it may be admitted. This is the basis on which relationship evidence is admitted. The evidence is regarded as actually probative of the disputed conduct. The particular way in which such evidence may be probative depends on the facts of the particular case. Of the very general relationship evidence in Gipp, McHugh and Hayne JJ said at 1026:

'It was admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant. Without evidence of the background and the continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed "unreal and unintelligible". Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described ... Neither on this or any other occasion did the complainant tell her mother what had happened. Knowing that this was not the first time that the complainant and the appellant had engaged in sexual activity helps to explain the complainant's apparent lack of surprise at being called into the bathroom to gratify the appellant's sexual desires and her matter of fact recounting of the incident. The regularity with which incidents such as this occurred also helps to explain her failure to mention the incident to her mother and the appellant's confidence - manifested by the omission of any threat or inducement - that the complainant would regard the incident as nothing unusual.' "

23 In the present case it is my view that the generalised relationship evidence was admissible. Whilst counsel for the applicant argued that it was inadmissible because there were already several instances of sexual misconduct alleged in the indictment, and not isolated events, there is no authority that suggests that the mere number of counts in the indictment will govern the admissibility of relationship evidence. Counsel for the applicant relied upon the dissenting judgment of Ipp J in Kailis v R [1999] WASCA 29; (1999) 21 WAR 100 where, at [199], his Honour expressed the view that where an accused faces a single or relatively few counts, extraneous evidence of guilty passion is likely to be relevant, but where there are several counts charged the true context of the acts (and the relationship between accused and complainant) will often be manifest from the whole of the evidence required to be led to prove them.

24 I would see the present state of the law as contained in the statement of principle expressed by Anderson J in that case (at [214]):

"Ground 11 in the appeal challenges the sufficiency of the direction which is required to be given to the jury when the jury has before it evidence of sexual acts other than those the subject of the charge or charges upon which the acts other than those the subject of the charge or charges upon which the accused is being tried. The evidence which falls into that category is adumbrated in the judgments of the Chief Justice and Ipp J and I do not repeat it. There was quite a lot of it and it was evidence of serious sexual misconduct on the part of the appellant with the female complainant over an extended period. There was no objection to the admissibility of the evidence and, in my opinion, the evidence was plainly admissible for the reasons explained by the Chief Justice in his judgment in this case and for the reasons I tried to explain in Hardingham v The Queen (unreported, Court of Criminal Appeal, WA, Full Court, Library No 940105, 3 March 1994) at 3-7 to which the Chief Justice has referred. In my opinion, it should be taken to be settled that, in relationship cases, evidence of uncharged sexual misconduct by the accused with the complainant is admissible unless it has no worthwhile probative value in the particular case; that is, unless (to use the words of Fitzgerald P in R v Kemp [1977] 1 Qd R 383 at 398) '... the relationship evidence does not logically add to or detract from the probability that disputed critical matters occurred'. I think that would not very often be so in cases of intra-family sexual offences involving young children. Of course, the trial judge has an overriding discretion to exclude the evidence, even if strictly admissible, on the ground that its probative value was outweighed by its prejudicial effect: see B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 602, per Mason CJ."

25 In the present case the learned trial Judge was not asked to exclude the relationship evidence on the ground that its probative value was outweighed by its prejudicial effect. In any event it was in my view admissible evidence. The complainant contended that he had been sexually assaulted over a period of approximately four years, and it was, in my view, open to the prosecution to establish to the jury that not only did the matters complained of in the indictment occur, but other incidents as well. As Anderson J put it in Cook v The Queen (supra) (at [66]), it revealed a continuing and strong sexual interest by the applicant in the complainant and showed the actual existence of that relationship over a long period of time. It was evidence which would enable the jury to understand the context of the incidents that were the subject of the charges.

26 The evidence being admissible, the question which then arises is whether the learned trial Judge adequately instructed the jury as to how to use it. In Cook v The Queen (at [68]), Anderson J set out what in general terms may be described as the minimum requirements of a direction on relationship evidence. His Honour said:

"68 ... What emerges from the cases is a broad consensus that the directions to the jury must leave them with an understanding of at least three things: (1) the jury may have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true; (2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light; and, (3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct the subject of the charge has been proved, they cannot use the evidence of uncharged conduct to convict the accused.

69 As McHugh J pointed out in BRS v The Queen (supra) at 305, in some cases the directions will have to be more specific. An obvious case would be if the Crown seeks to rely on the general behaviour evidence for a specific purpose such as, for example, corroboration. It will be for the Judge to direct the jury whether or not they may use it for that purpose and, perhaps, in what way they may do so."

27 His Honour added that it is desirable, if not essential, that the warnings be given at an early stage, preferably immediately before but generally no later than immediately after the evidence in question and that the jury be reminded of the warnings in the final charge: R v Beserick (1993) 30 NSWLR 510 at 516. This latter case was cited with approval by Malcolm CJ in Kailis v The Queen (supra) (at [89] - [90]). In R v Beserick (supra), Hunt CJ at CL said (at 515):

"Evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge is nevertheless frequently of a highly prejudicial nature, in that it tends to show a propensity on the part of the accused to commit crimes of the nature charged or crimes of a similar nature. It's admissibility has therefore always been subject to the well-known discretion in criminal trials to exclude the evidence of such sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions he must also have done so on the occasion which is the subject of the offence charged."

28 Looking carefully at the directions given to the jury by the learned trial Judge in this case, it would appear that his Honour did incorporate the three things listed by Anderson J in Cook v The Queen. His Honour told the jury

(1) that they had to be satisfied beyond reasonable doubt that there was a course of (extraneous) conduct between the complainant and the applicant;

(2) they could use that evidence to understand the relationship between the accused and the complainant;

(3) they must not, however, assume that the offences the subject of the specific counts on the indictment were committed by moving from general evidence which they accepted to proof of the specific events which were alleged.

29 The only thing missing, it seems to me, is the statement that the relationship evidence is led to place the evidence which is the subject of the charge "in a real light". The direction may not go as far as that suggested by Hunt CJ at CL in R v Beserick, but it would seem to me to satisfy the test propounded by Anderson J in Cook v The Queen. It is true that the learned trial Judge did not give any direction to the jury about the evidence when it was led, but close analysis of the words of Hunt CJ at CL in R v Beserick suggests that it is at least required that either when the evidence is led or later when directing the jury (and preferably both), such a direction should be given. In my view, the mere absence of the direction at the time the evidence was led does not mean that there has been an error of law on the part of the learned trial Judge and/or any miscarriage of justice. I consider that the learned trial Judge's directions to the jury, although bare, were adequate. In my view, the second ground of appeal cannot be made out, and I would accordingly refuse the application for extension of time within which to appeal.

30 The grounds of appeal in relation to the second trial relate to the adequacy of the so-called Longman direction given by the learned trial Judge and the admissibility of "relationship evidence" coupled with the direction given by the learned trial Judge in relation to that evidence.

31 In this instance the Longman direction given by the learned trial Judge was given against a background that the complainant had failed to complain immediately after the alleged sexual incidents had taken place and the delay in making any complaint had been some five to six years after the first of the offences alleged in the indictment and some two years after the last of the three offences alleged. Complaints had then been made to police. The complainant, when asked why he had not complained earlier about the alleged assaults, said that he had been simply too ashamed to tell anybody what had happened to him over the prolonged period of time in question. The learned trial Judge directed the jury that a complaint may be delayed or not made at all through fear, feelings of guilt etc and gave a clear direction that the absence of an immediate complaint or a delay in complaining does not necessarily mean that the allegations made are false. That direction (and further aspects of it) was entirely in accordance with the requirements of s 36BD of the Evidence Act. His Honour, clearly having decided that the provisions of s 50 of the Evidence Act did not require a "corroboration warning", no such warning was given. It is not argued that any such warning should have been given. What the learned trial Judge did do was give what has been termed a Longman direction. In Cook v The Queen, Anderson J (at [118]) summarised the effect of the decision in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79:

"118 ... That case laid down that, notwithstanding that there is no legal requirement to give a corroboration warning, it is proper to give a warning where the particular circumstances provide justification to do so. And it was held that the circumstances may provide justification for a very strong warning indeed. In Longman, there was a delay of some 20 years before complaint was made. The fairness of the trial had necessarily been impaired by the long delay. There were no means left to the applicant to test the complainant's allegations. The alleged events had so long passed into history that there was really nothing left for the accused to do than offer a bare denial. In those circumstances, the High Court held (per Brennan, Dawson and Toohey JJ at 91) that the jury:

'... should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.' "

32 In the present case the learned trial Judge directed the jury as follows:

"I have already given you examples of why a complaint may be delayed and I have already drawn your attention to the complainant's explanation for the delay in this case. In some circumstances, however, the delay may be so long, so inexplicable or so unexplained that a jury could properly take it into account in concluding that in that particular case the allegation made was false. In the light of this direction, you must decide what effect, if any, the delay in the complainant telling anyone what had happened has upon the accuracy and reliability of his evidence as a whole.

I now propose to give you a general direction as to the approach you should take in evaluating the evidence of the complainant. Before doing so, I want to emphasise that what I say in this regard should not be construed as criticism of his evidence or as suggesting what view I have of his testimony or credibility as a witness. It is your task to evaluate the evidence of the complainant. I am simply required to draw your attention to certain circumstances which you must take into account in carrying out that task.

You will of course appreciate that the only evidence in relation to the commission of the alleged offences comes from the complainant himself and no-one else. The crown case in effect stands or falls on your evaluation of the evidence of the complainant. That of course is by no means unusual in a sexual trial.

In relation to the alleged acts of sexual penetration, there is no evidence independent of the complainant which goes to confirm in some material particular that the offence has been committed and that the accused was the person who committed it.

Even though the evidence of the complainant stands on its own, as it does in many sexual cases, you may act on his evidence alone if after scrutinising it with great care and exercising caution you are satisfied beyond reasonable doubt as to its truth, reliability and accuracy.

There is one further matter you should take into account. As I have said, some 7 years or so elapsed between the first of the offences alleged in the indictment and the date upon which a report was made to the police. To be more accurate, the time lapse between the first alleged offences and the date upon which the report was made to the police was in the region of 5 to 6 years.

The complainant at that stage was aged 12 and is now aged I believe 18. With the years that have gone by, the accused may have been deprived of the opportunity of investigating the circumstances in which those two initial offences are alleged to have taken place. He may have lost the means of testing the complainant's allegations that he might otherwise have had if the prosecution had been brought earlier. His opportunity to investigate the complainant's allegations and perhaps call evidence to rebut his own story and reinforce his own denial may have been lost or at least substantially reduced. You must or should take that factor into account in considering whether or not the crown has proved the accused's guilt in relation to the first two charges."

33 There are substantial differences between the facts in Longman v The Queen (supra) and the facts in the present case. Here the complaints were made some five to six years after the first of the alleged offences and some two years after the last of the alleged offences. That is a great difference from the 20 year period which was under consideration in Longman v The Queen. Counsel for the applicant argued that a number of the matters referred to in Longman v The Queen by McHugh J (at 107) should have been put by the learned trial Judge to the jury. The oft quoted passage of McHugh J at 107 is in the following terms:

"The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine. Hunter, Memory, rev ed (1964) pp 269-270.

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred."

In my view, the observations of McHugh J were primarily related to the facts of Longman v The Queen. They are certainly far from the facts of the present case and in my view inapplicable. I am of the opinion that the learned trial Judge gave the jury proper guidance as to how delay in the making of complaints by the complainant had disadvantaged the accused person and otherwise correctly directed the jury in every respect as to the care and caution with which the testimony of the complainant should be approached. The jury was rightly told that the only evidence in relation to the commission of the alleged offences came from the complainant himself and from no-one else and correctly told that they could take into account the fact that some five to six years or so had elapsed between the first of the alleged offences and the date upon which a report was made to police. Although it is contended that the learned trial Judge's directions fell "far short of what is required", I am of the view that the warning given by the learned trial Judge to the jury in Longman terms was more than adequate.

34 The next attack on the learned trial Judge's direction relates to the admissibility of and the directions given on relationship evidence. It is unnecessary for me to repeat what I have said about the general principles which are applicable to relationship evidence and the directions that should be given to the jury on the subject. I have referred to them in detail in relation to the appeal on the first trial. The relationship evidence which was adduced by the Crown at the second trial was that after the first incident of anal penetration, over the next few weeks the applicant had kept on pestering the applicant "trying to let him fuck me - have sex with me ... he wanted to root me ... he would be touching me on either my penis or my legs or playing with my balls." According to the complainant this went on for about three to four months. When the complainant was asked whether anything had happened after the first act of anal penetration he said that "... Peter and myself had sex for a numerous amount of months ... through the mouth oral sex ... he also penetrated my anus with his penis ... two to three times a week."

35 In my view, the relationship evidence was plainly admissible at the second trial. There were only three counts on the indictment and the relationship evidence was admissible to show the relationship which existed between the parties. Without it, the background and the continuing nature of the conduct alleged may have made the evidence of the complainant in relation to the three matters charged in the indictment "unreal and unintelligible". Without knowing the course of the relationship the jury may have had great difficulty in accepting that the incidents alleged could have occurred in the way in which the complainant described: Gipp v The Queen (1998) 72 ALJR 1012 per McHugh and Hayne JJ at 1026.

36 The learned trial Judge's directions to the jury on relationship evidence were brief. His Honour said:

"In this case you have heard evidence of sexual acts that are alleged to have taken place between the accused and [the complainant] other than those charged. I do not propose to go in detail into those alleged sexual acts. You will recall the complainant's description as to how when he lived in the house in Stewart Street he woke up one night to find that his pants had been pulled down and the accused was fondling his penis. The accused told him the following morning not to tell anyone what had happened.

The complainant then went on to describe how he eventually succumbed and allowed the accused to have anal intercourse with him. He told you that anal intercourse and oral sex then became a regular feature of his life during the time that he lived with the accused. Intercourse and oral sex took place on between one and three occasions a week.

I direct you that evidence of sexual conduct other than that charged was admitted in this trial solely to establish the relationship between the accused and the complainant as part of the context and setting in which the three offences charged are alleged to have occurred. If you accept the evidence of the other sexual acts - that is to say, the sexual acts other than those charged - or even part of that evidence, you must remember that the commission of the three offences charged in the indictment cannot be proved by the evidence relating to that extraneous sexual conduct. The three charges in the indictment can only be proved by the evidence relating in particular to those three charges.

I direct you that you must not reason that because the accused engaged in sexual conduct with the complainant on one or more earlier or later occasions, he was the kind of person who was likely to have done so on the three occasions charged."

37 I have previously set out what Anderson J terms the "broad consensus" of directions which must be given to the jury in relation to relationship evidence (Cook v The Queen at 68). The three essential things the jury must be told are

(1) the jury are to have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true.

(2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light.

(3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct the subject of the charge has been proved, they cannot use the evidence of uncharged conduct to convict the accused.

38 In the present case the learned trial judge directed the jury that the relationship evidence was adduced solely to establish the relationship between the accused and the complainant as part of the context and setting in which the three offences charged were alleged to have occurred. That satisfied the second of Anderson J's tests. His Honour then directed the jury that if they accepted the evidence of the "other sexual acts", they must remember that the commission of the three offences charged in the indictment could not be proved by the evidence relating to that extraneous sexual conduct. That satisfied the first of Anderson J's tests. His Honour then directed the jury that they must not reason that because the accused had engaged in sexual conduct with the complainant on earlier occasions he was the kind of person who was likely to have done so on the occasions charged. That satisfied the third of Anderson J's tests and (incidentally) satisfied the test as formulated by Hunt CJ at CL in R v Beserick at 515, which was specifically approved by the Chief Justice in Kailis v The Queen (at [90]).

39 I can find no basis upon which it can be argued that the directions given by the learned trial Judge in relation to relationship evidence adduced at the second trial were in any way at fault. The appeal in this regard must therefore be dismissed.

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