Vaoalii TOALEPAI v R

R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 Fung v R [2007] NSWCCA 250; 174 A Crim R 169 CASES CITED : Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 DJV v R [2008] NSWCCA 272 Rodden v R [2008] NSWCCA 53; 182 A Crim R 227 TK v R [2009] NSWCCA 151

COUNSEL: S Dowling - Crown C Davenport - Appellant

SOLICITORS: S Kavanagh - Crown S O'Connor - Appellant

IN THE COURT OF CRIMINAL APPEAL 2007/10550

MACFARLAN JA HOWIE J HISLOP J

TUESDAY 3 NOVEMBER 2009 Vaoalii TOALEPAI v REGINA Judgment 1 MACFARLAN JA: I agree with Howie J. 2 HOWIE J: This is an appeal against conviction of five sexual assault offences committed against a child, TL, between August 1999 and October 2001 when the child was between the ages of 6 and 8 years. The offences comprised three counts of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act (counts 1, 3 and 5), a count of indecent assault of a child under 10 years contrary to s 61M(2) (count 2) and a count of inciting a child under 10 years to commit an indecent act contrary to s 61O(2) (count 4). The appellant was sentenced to an overall sentence of 6 years and 6 months with a non-parole period of 4 years. There is no application to appeal against sentence. 3 There are two grounds of appeal filed:

1. Her Honour erred in failing to give directions regarding the evidence of other acts of misconduct.

2. The verdicts were unsafe and unsatisfactory. 4 The facts can be briefly stated. The evidence to prove the charges was that of the complainant who was aged 15 at the time of the trial. There was no evidence in support of her account. There was medical evidence that was treated at the trial as being neutral. The appellant did not give evidence nor did he participate in an interview with investigating police. The defence at the trial was conducted on the basis that the complainant was unreliable. She had not disclosed the offences until May 2002. 5 In 1997 the complainant's mother commenced a relationship with the appellant. In 1999 the family commenced to live in Belmore. The appellant stayed at those premises most nights and would often baby-sit the complainant and her sister when the mother went to play Bingo or go shopping. The complainant alleged that on these occasions the appellant sexually interfered with her. The relationship was terminated in September 2001 and the complainant spoke to her aunt about the appellant's conduct in May 2002. Police interviewed the complainant on two occasions in July 2002. The appellant's whereabouts were unknown at that time and he was not arrested until 2007. 6 The complainant gave evidence by closed-circuit television. The evidence included the playing of the two interviews with police. During the course of the first interview the complainant became upset after general questions had been asked about the family and the appellant. She was given the opportunity to write down what had happened with the appellant. She wrote:

Every time my mum went shopping he would take all his clothes off and tell [L, (her sister)] to go and have a bath and stay in there for long, and my brother TJ would be at P.C.Y.C. And he would call me and tell me to put my tongue in his mouth, and I had to because he forced me to do it. And he took his undies off and told me to take mine off, and he forced me to do it, otherwise he would pretend he was going to hit me, and white stuff was coming out of his rude part, and when he took off his clothes he put his rude part into mine and move up and down, and when he heard my mum open the door he would get up and quickly run into the room and pretend he was getting changed, and told me to run into the toilet. 7 The complainant was then asked:

Q247 So, [T], you said here that every time when your mum went shopping, how many times did this happen?

A Every time. 8 The complainant later said that she had forgotten to write something down and said:

When I was asleep he was, took his clothes off and he started taking mine off and he put his thing, rude part into mine when I was asleep.

She said that he told her to suck his rude part but she did not do it. 9 She said that the first time the appellant did rude things to her he told her to put a skirt on and come back to him when she had done it. He was telling her to put her tongue in his mouth and he pulled her skirt off and took off his pants. He put his rude part into hers. He then heard her sister getting out of the shower and he stopped, telling her to pretend she was drawing. This incident gave rise to the first count on the indictment. She said it occurred when she was aged 7 and on a Saturday because TJ was at the football. The appellant told her not to tell her mum or he would hit her. 10 The appellant told her to go to her mother's room and lie on the bed. He then got on top of her. He pulled her skirt up and pulled down her undies. He took off the sarong he was wearing and was naked. He put his rude part into her with his hand. She could feel him inside her and it hurt. This continued until her sister got out of the bath and she could hear the water going down the drain. As he was doing this he rubbed her boobs. This conduct gave rise to count 2. 11 In the second interview conducted two days after the first, the complainant said that the appellant stopped doing rude things to her before he went on holidays to Queensland but she could not say when that was. She could not say how many times the abuse took place but it happened every time her Mum went shopping every Monday and whenever she went to visit someone. 12 The complainant gave an account of an incident when she was sleeping in her bedroom. Her sister L was also in the room. It was night and she woke up because a light was in her eyes. She saw the appellant and he was putting his rude part into hers. This incident gave rise to count 3. He had come into the room and taken his boxer shorts and undies off. He did not say anything to her. He moved up and down and it hurt her. 13 On another occasion she was in bed doing her homework. He told her, "Suck my rude part". She pretended she was not listening. This incident gave rise to count 4. The appellant then told her sister to go and have a bath and he went into the lounge room. It was after school and the complainant was in her uniform. He lifted up her dress and took off her undies. He was wearing a sarong and took down his undies. He told her to put her homework away and then he put his rude part into hers. This complaint gave rise to count 5. 14 During the course of the complainant's evidence she said that there were only three occasions that something happened between the appellant and her. In cross-examination she agreed that in the interviews she said that something happened whenever her mother went out. She denied that she was lying in the interview but admitted that she was lying in her evidence because she was embarrassed. When asked why she lied in her evidence, she said. "Because I don't, like it happened more than three times, but like I don't know like when, it did happen every time I remember now, but like these are like the main story like you said". She confirmed that she had lied when she said that it only happened three times. She said that she was embarrassed and did not want to deal with it anymore. When asked why she lied to take away the embarrassment, she said, "Because that means I just have to come back to court for the other times too". 15 The complainant's aunt gave evidence that the complainant had told her that the appellant had done things to her as follows:

She said that she, told me that he made her put his thing in her mouth, that he licked her on her thing, he put it in her, in her thing, that's the word she used with me, he kissed her and stuck his tongue in her mouth, he rubbed white stuff on her over her chest under, like on her bare skin.

She asked the complainant how often it happened and she had replied whenever her mum went to Bingo or shopping, whenever she was left there and at night. 16 She gave evidence that the complainant said:

[The appellant] used to go in my room at night and he would try to get my undies off and sometimes he would put his finger in my thing.

The complainant also said that he "put his finger in my bum". 17 The complainant's mother gave evidence about her relationship with the appellant and the sleeping arrangements in the house. 18 The complainant's elder sister, CP, gave evidence about the sleeping arrangements and confirmed that the appellant looked after her sisters when she and her mother would go to Bingo or shopping. 19 Dr Norrie, a forensic physician, considered the notes of Dr Chan who had examined the complainant in August 2002. That examination revealed a normal hymen with no signs of trauma. There was a small notch or ridge on the hymen that Dr Norrie thought was a non-specific finding and could be either a normal variant or a previous transection, that is a tear or laceration to the hymeneal tissue, that had healed. She expressed the view that the findings were not necessarily inconsistent with the complainant's version depending upon how far the sexual organs had been penetrated. She stated that, if there were entries of a penis into the vagina once a week over a two-year period, it was unlikely that any damage would have healed. 20 The Crown opened to the jury. She outlined the facts upon which each of the counts in the indictment was based. She also said:

Now I expect you'll hear that from the time [the complainant] was living at the Belmore address until about September 2001, when her mother was no longer seeing the accused, that the accused would often have sexual intercourse with her when her mother would go out of the house. And I expect you will hear that given the passage of time, she is unable to detail every incident.

Defence counsel opened to the jury shortly and indicated that the defence case was "that the conduct alleged by [the complainant] did not happen". 21 At the request of the defence and at the conclusion of the evidence-in-chief of the complainant's aunt, the Judge stated:

Members of the jury, I should tell you that that evidence of the conversations between the complainant [TL] and [her aunt] is not before you as evidence of the truth of what was said by the complainant, but this evidence is led by the Crown in order to attempt to re-establish the credit of the complainant, that is [TL]. I'll give you further directions at the end of the trial about how you are to treat this evidence of these conversations which is called evidence of complaint in some circumstances, but here its to re-establish credit. 22 The summing up was appropriately brief having regard to the evidence before the jury and the way that the trial had been conducted by the parties. At the conclusion of the summing up her Honour was asked to redirect the jury on a number of matters and complied with the requests. After she had sent the jury out to consider its verdict the following occurred (my underlining):

Trial Advocate : Your Honour just as I sit here now thinking and I appreciate you've sent the jury out again, whether or not it is appropriate to give a direction in relation - I think your Honour has given a direction about the complaint evidence which referred to uncharged acts. There is no evidence of uncharged acts themselves but there is evidence in the complaint of "other acts". Now your Honour said that it is not to be evidence of the truth, I'm just wondering, to be prudent, that they are not to substitute or give a warning in relation to that and the only relevance of that evidence was to, well it actually went to her credibility but I suppose it also went to discredit her, it was used by the defence to discredit her.

Her Honour : Well I suppose I'll send a message in then not to - that there will be - I'm not going to do it now then. Mr Fernandez (defence counsel) I think I should send a message in not to - whether or not they deliberate or not is another thing, well they can't reach a final verdict, but that there will be a further direction after they've finished their lunch, say 10 past 2.

Her Honour : Could you just make sure they have that message, that they are not to reach a final verdict. There will be a further direction given after, say about 10 past two. 23 After the luncheon adjournment the following took place:

Her Honour : Just before we have the jury I think I will just clarify with the direction that you suggest Mr Fernandez. I thought I would use the context direction in the bench book but modify it just to refer to the [complainant's] evidence of other alleged acts -

Trial Advocate : It is not - see that is the thing it is not her evidence of other - it is only the events from [the aunt] that there is - so there is no evidence for them to find that there were uncharged acts because there is just evidence that was only led for the limited purpose of her credibility in relation to telling [her aunt] that he put it in her thing, that -

Her Honour : I see, but what about the fact that there are uncharged acts of - every Monday night or whatever that was, they are the other acts as well.

Her Honour : So that is evidence from her not going to the charges on the indictment -

Her Honour : - but there is evidence from the complainant that there were other -

Trial Advocate : Acts although they are unspecified yes.

HER HONOUR: I think those - but what she told [her aunt] is not evidence of those acts, right and then I would give the direction that you must not use this evidence of other acts as establishing - you must not substitute the evidence of the other acts for the evidence of the specific offences charged. Something as basic as that.

HER HONOUR: Yes. All right. I will have the jury then thank you. 24 When the jury returned to court her Honour directed them as follows:

………..As I have made it clear before you can convict the accused in respect of any count on the indictment, you must be satisfied beyond reasonable doubt that that particular offence has been proved to have been committed. Now in addition to the evidence led by the Crown specifically directed to those five counts, you have heard other evidence from the complainant, [TL], about other things that happened - on Monday nights or whenever her mother was out.

You have also heard from [her aunt] about other alleged acts, such (as) touching the complainant on other parts of the body et cetera, but that is not evidence of the truth of those acts alleged. I am directing you that that is not evidence of those acts, in any event.

In respect of the evidence from the complainant that other things happened, unspecified things - but other acts of assault, you cannot substitute the evidence of those other acts for the evidence of the specific offences charged. So, you are only dealing with the specific offences, not some general rolled up allegation of other unspecified acts. I hope that is understandable."

Neither counsel sought any further direction on this topic.

Ground 1 Direction on uncharged acts 25 The concern raised by the prosecutor about "uncharged acts" related only to the evidence of complaint to the aunt. The prosecutor was not conscious that the evidence of the complainant herself raised "uncharged acts". But it is clear that her Honour was sensitive to the issue that there was evidence both from the complainant directly and through the aunt, of other sexual acts committed by the appellant against her. The evidence of other acts coming from the complainant's evidence was very general being merely an allegation that the appellant did things to her whenever her mother went out and he was left to baby-sit her and her sister. The allegations to the aunt were of other incidents specific in detail but unspecific as to when they occurred. 26 In relation to what the complainant said to her aunt, her Honour dealt with the issue by directing the jury that they were not to treat them as evidence of the truth of what the complainant said, but that they went to re-establish her credit. Counsel appearing for the appellant in this Court accepted that the present ground of appeal did not relate to reference in the aunt's evidence of "uncharged acts". 27 The complaint under this ground is that the trial judge should have given the jury a direction against using the evidence of the complainant as tendency evidence; that is her Honour should have warned the jury against reasoning that, because the complainant said that the appellant committed sexual acts against her whenever her mother went out, he was more likely to have committed the particular acts set out in the counts on the indictment. 28 As will be noted from the part of the transcript extracted above, it was the prosecution advocate who raised the issue of evidence of "other acts" and whether some direction should be given about them, but only in respect of the evidence of complaint to the aunt. After the luncheon adjournment her Honour brought to the attention of the parties that the evidence of the complainant referred to other acts and suggested that she might use the "context direction in the bench book". But her Honour was in effect deflected from taking that course by both counsel who expressed agreement with the proposal that the Judge merely direct the jury against substituting general evidence for the particular evidence led in respect of each of the counts on the indictment. 29 In light of what happened at the trial the appellant relied upon an affidavit of defence counsel at the trial to the effect that he overlooked seeking a direction in relation to the "use of the uncharged acts" and that this was a mistake rather than a tactical error. I indicated in R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 that such an affidavit would not necessarily overcome the effect of rule 4 where counsel failed to take a point at trial. With the concurrence of Giles JA and Carruthers AJ, I stated:

[58] It has been my experience, limited as it is, that counsel appearing for the appellant in this Court often consider that it is sufficient to justify the grant of leave under r4 that an affidavit is placed before the Court from trial counsel to the effect that, as best as counsel can recall, there was no tactical reason for the failure to take the point. Often trial counsel admits that he or she never thought to take the objection, or was unaware that a direction or warning, such as that raised on appeal, was required. Frequently the material simply indicates that counsel can no longer recall why he or she did not seek the direction or take the objection that is the subject of the ground of appeal.

[59] It seems timely to repeat again what Hunt J had to say in R v Abusafiah (1991) 24 NSWLR 531 at 536:

"The requirements of r4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or nondirection may without leave be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it and if counsel for the accused to whose detriment the error fails to comply with his or her duties to draw the judge's attention to that error, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial."

[60] It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial.

[61] Nor can bald assertions by trial counsel that there was no tactical reason for a failure to take the point always be taken at face value. This is not to suggest that trial counsel would seek to mislead this Court, but counsel cannot be expected, many months after the event, to recall accurately the atmosphere of the trial or the circumstances in which decisions were made during the course of it. Tactical choices are often made on the spur of the moment as the trial takes on a certain complexion, for example, because of a change in the evidence in the Crown case.

[62] Indeed, in light of the experience of this Court over the last ten years, of which the instant case is a good example, a real question arises as to whether the Court should any longer expect an appellant, seeking to overcome the impact of r4, to provide an explanation from trial counsel as to why the relevant objection was not taken or the relevant direction not sought. There may be rare occasions when real assistance can be derived from such material in amplification of the transcript. But generally speaking it seems to me to amount to no more than an imposition on trial counsel for little, or no, good purpose.

[63] At the end of the day the question, with which this Court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decisions, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the Court to take objections or seek re-directions where appropriate: R v Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: R v Birks (1990) 19 NSWLR 677 at 685. If leave is required under r4, then the applicant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A Crim R 183 at 191; R v Williamson and Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this Court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A Crim R 226.

This statement has been applied by this Court on subsequent occasions; see for example Fung v R [2007] NSWCCA 250; 174 A Crim R 169. 30 With respect and appreciating that counsel was not required to give evidence in this Court, it is difficult to understand how defence counsel at the trial could overlook seeking a direction on the topic in light of her Honour's remarks and her suggestion that she give the "context direction in the bench book". This was obviously a reference to a direction contained in the Criminal Trial Courts Bench Book that is now widely available to members of the profession and the public generally. 31 It is perhaps significant to identify what her Honour would have said had she given the relevant direction from the Bench Book that she initially proposed. The Bench Book contains the following suggested direction on context evidence:

It is important that I explain to you the relevance of this evidence of other acts. It was admitted [ if appropriate: solely] for the purpose of placing the complainant's evidence of the particular acts relied upon by the Crown to prove the charges in the indictment into what the Crown says is a realistic context.

[Recite the Crown's submission of the issue(s) in the trial which justified the reception of context evidence.]

Otherwise, you may wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If a complainant gave evidence of isolated acts of sexual misconduct, you would be entitled to think it was very odd for there to be such isolated acts between these persons. If you had not heard about the evidence that I am talking about now, you may have thought the complainant's evidence was less credible.

[The following should be adapted to the circumstances of the case:]

If, however, the particular acts charged are placed in a wider context, that is a context of an ongoing history, then that curious feature would disappear. It is for that reason that the law permits a wider sexual history to be provided. It is to avoid artificiality or unreality in the presentation of the evidence. For one or two incidents to be artificially isolated and selected and for a witness to be confined to them could make it very difficult for [ him/her ] to proceed intelligently with [ his/her ] evidence. To pick out, for example, two incidents separated by lengthy periods could leave you with a very strange and unrealistic account.

Therefore, it is open to the Crown to lead evidence of other acts of a sexual nature between the accused and [ the complainant ] … [ explain by reference to the facts of the case ].

However, I must give you some important warnings with regard to this evidence of other acts [ optional: which we can conveniently refer to as "context evidence" ].

You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged.

You must not substitute the evidence of the other acts for the evidence of the specific offences on the indictment.

You must not reason that, because the accused may have done something wrong to [ the complainant ] on another occasion, [ he/she ] must have done so on the occasions on the indictment. 32 Had her Honour followed this direction she would have explained the relevance of the complainant's allegation that similar acts occurred on other occasions when her mother went out and given the warnings set out including a warning against tendency reasoning, the first of the warnings set out in the suggested direction. As it was, the only part of the direction she gave was the second of the warnings, against substitution of evidence. 33 The submissions on behalf of the appellant in support of this ground of appeal note that no consideration was given at the trial to the evidence of "uncharged acts" arising from the complainant's evidence, either as to its admissibility or what direction should be given about it until the trial advocate raised the matter after the jury had retired to consider its verdict. Reference was made to the Court's decision in Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 and in particular what was said by McClellan CJ at CL at [80] as to the importance of determining the basis of such evidence and whether it should be admitted in advance of the evidence being given. See also DJV v R [2008] NSWCCA 272. 34 It is clear in the present case that the evidence was considered to be context evidence, that is as indicating to the jury that the particular complaints that formed the charges in the indictment were not said by the complainant to be isolated incidents of indecent or sexual acts committed by the appellant. There is not the slightest suggestion in the addresses of either counsel that it was to be treated by the jury as other than part of the complainant's allegations of misconduct by the appellant toward her. This was no doubt because the evidence was so vague, not only as to when it occurred but as to its nature. As has been noted, there was more particularity in the complaints made to the aunt but these were dealt with in the way that I have indicated. 35 The argument of the accused is that, in any case where there is evidence of sexual misconduct falling outside the scope of the charges in the indictment, a full direction should be given explaining the nature of the evidence and warning the jury against tendency reasoning. It was submitted that such a direction must be given as a matter of law and the failure of defence counsel to seek such a direction does not permit the Court to apply rule 4. These submissions should in my view be rejected. 36 A similar situation as that which occurred in this trial was considered by this Court in Rodden v R [2008] NSWCCA 53; 182 A Crim R 227. The applicant, the defacto partner of the child's mother, was charged with four counts of aggravated sexual intercourse with a child and one count of aggravated indecent assault with a child. During the trial an interview was played to the jury during which the complainant gave evidence of uncharged acts. The complainant said this:

Q410 Well, you've told me about this one time that you remember happening. How many times do you think this has happened over the time that you (sic) know Matthew, you've known Matthew? A Mmm. Millions. Later in the interview she was asked:

Q631 Okay. And how many times do you think this, this has happened where you've watched a movie and that your Dad has come in? A Hundreds

Q632 Okay. And when he's come in, you said that he's touched you while you're under the blankets. A Yeah. 37 There was also in that case evidence of a telephone call between the appellant and the child that could have been used to prove a tendency in the applicant to have a sexual interest in the child. 38 The trial judge gave the following direction in respect of the evidence of the complainant set out above:

Now, you've heard pieces of evidence, particularly - well I think, entirely from [the complainant], that she says events such as the particular counts relate to, happened on many occasions. Now you heard that because it's part of the overall picture of which she speaks, to put the overall situation in context. You are not allowed to use that in any way to fill any gap that you may find in respect of any particular charge. You are not entitled to say, 'well, we're not altogether sure about that, because it was going on pretty regularly, so it doesn't matter'. You are not entitled to do that at all. Each of the charges has been put in a particular way, as I will come to, and you have to be satisfied about the relevant elements in respect of each of them. You cannot use general allegations to fill in gaps in specific charges.

No objection was taken to this direction at the trial and no further direction was sought on this topic. 39 There was no ground of appeal filed that raised any complaint about this direction. However, the Court, having raised the issue during the hearing of the appeal, permitted the appellant to file amended grounds of appeal raising a complaint about the adequacy of this direction and the parties filed written submissions. 40 In his judgment, with which the other members of the Court agreed, Hall J stated at [102]:

The nature of the relationship evidence as given by the complainant was, if the complainant was accepted as a reliable and truthful witness, extremely prejudicial to the appellant. In those circumstances, it was essential that proper directions be given to the jury as to how such evidence could be used and how it could not be used.

His Honour held [at 107] that the directions on relationship evidence given "were inadequate and did not convey the limitations upon its use". 41 Hall J ultimately concluded that the trial had not been conducted according to law. 42 On the face of it the decision might be taken to support the submission made on behalf of the appellant although neither party referred the Court to the decision. With respect to those that might have a different view, I cannot agree with the passage of Hall J's judgment in paragraph [102] if it refers only to the fact that the complainant said that the conduct occurred millions or hundreds of times. I cannot accept that such a vague, generalised and clearly exaggerated reference to other misconduct could suggest to a jury by itself that they might indulge in tendency reasoning such that the failure to give a warning against the use of that type of reasoning could result in a miscarriage of justice. If the evidence of the complainant stood alone, then I can see nothing wrong with the direction given by the trial judge. The absence of complaint would have given rise to the application of r 4 and for my part I would have been far from satisfied that a miscarriage of justice had occurred. However there were two aspects of the trial in Rodden that, with respect, clearly indicated that a miscarriage of justice may have occurred. 43 First, there was specific evidence before the jury that could have been used to prove a tendency on the part of the appellant to have a sexual interest in the child. The Court held that the trial judge failed to give adequate directions to the jury on the use to be made of this evidence. 44 In a case where the issue of tendency is raised for the jury's consideration by reason of some evidence that is placed before the jury for the purposes of proving a propensity on the part of the accused to commit sexual acts against the complainant, the failure to give a tendency warning in respect of other evidence not being used for a tendency purpose could amount to a serious defect in the summing up. The jury, having been alerted to the concept of tendency reasoning, should be directed as to when such reasoning was available and when it was not. The distinction should be drawn between evidence admitted to prove a propensity and evidence not admitted for that purpose. The jury should be directed in clear terms that, if they reject the tendency reasoning arising from the specific evidence, they could not use that reasoning in relation to other evidence that was not admitted for that purpose. 45 Further it was a relevant fact in Rodden that the Crown in addressing the jury referred to the evidence of the other acts of misconduct arising from the complainant's allegations that it happened "millions" of times and told the jury that this was evidence that the accused had been "conditioning" the child from an age when she was unable to understand the nature of the misconduct: see at [119] of the judgment. The Crown was referring to this evidence, not just to give context to the specific complaints of the child, but in terms that could be taken by the jury to indicate that it was a part of a course of conduct designed to make it easier for the appellant to commit the specific offences set out in the indictment because the child would be compliant and fail to complain. In effect this was tendency reasoning. This was a matter that the Court took into account in determining whether the direction given to the jury was adequate. 46 The Court in Rodden recognised that the risk of miscarriage arising from the failure to give the warning had to be real and not fanciful and that it was not sufficient that the warning or direction should simply have been desirable rather than necessary: see at [120]. The Court concluded in the circumstances of that case that a warning against tendency reasoning was necessary in relation to the general evidence of other acts of misconduct. 47 In my opinion Rodden is not authority for the proposition that the failure to give a tendency warning where there is any evidence of misconduct falling outside the scope of the charges in the indictment results in a fundamental defect in the trial. I do not believe that the law requires that such a warning must be given whenever the evidence of the complainant suggests that sexual misconduct occurred on more occasions than those contained in the charges in the indictment. It may be desirable to give a direction such as that recommended in the Bench Book and set out above, but it is not mandatory in every case, regardless of how vague and general the evidence of other acts might be. 48 Of course if there is anything said in the trial that might suggest a tendency on the part of the accused or the evidence is used in a way that might indicate a tendency, then a warning should be given. But if there is nothing in the evidence or its use by the Crown to indicate the real possibility of tendency reasoning on the part of the jury, then I do not believe that the Court is prevented from applying r 4 where there was a failure to request the warning. I am not convinced that in such a case a failure to give the warning results in a fundamental defect in the trial. 49 In other words, in my opinion each case should be considered on its own facts and an assessment of whether a tendency warning was required as a matter of law in the particular circumstances of the case will depend upon whether there was a significant risk that the jury might have embarked on impermissible tendency reasoning having regard to the evidence placed before it and the arguments of counsel. I accept that one of the considerations in determining whether such a direction is warranted is that the complainant's evidence is unsupported by other evidence but I do not believe that this fact can be decisive. 50 In the present case the trial advocate said this in her final address in relation to the evidence of other misconduct:

Members of the jury the Crown says that you would be satisfied that the accused had sexual intercourse with [the complainant] in respect of the three counts on the indictment. Remember members of the jury he is not charged with having sexual intercourse with [the complainant] every week for two years and you might think in relation to that evidence of [the complainant] when she told the police it was every time that that was the unintentional exaggeration of a nine year old who simply said that because it felt like every time her mother went out. She told you in evidence towards the end of her evidence that it was more than the three times she described in her interview and she told police that it was more times than the three times she described in her interview. 51 Defence counsel used the allegation that sexual acts had occurred every time her mother went out in criticism of the credibility of the complainant. He asked the jury not to find it was an "unintentional exaggeration" having regard to the number of times that she had made that or a similar allegation. He pointed to evidence in the trial to submit that such an allegation could not have been true. 52 The evidence that had the most potential to give rise to tendency reasoning was the complaints made to the aunt, simply because they were more specific as to the nature of the sexual conduct on the other occasions. But the jury were told they could not use what the complainant had said as evidence of the truth. Therefore, as counsel for the appellant accepted, that evidence could not have supported tendency reasoning. That evidence was seen at the trial as being relevant only to the credibility of the complainant. 53 It may have been preferable for her Honour to have given the recommended direction in the Bench Book as she proposed to do. At least no argument could then have been raised about the sufficiency of the directions. Counsel for the prosecution should not have been so cavalier in relation to the evidence of other acts in light of the care that this Court has insisted should be given to the admission of that evidence. But neither party saw the evidence as having any value other than going generally to the credit of the complainant and defence counsel used it to the appellant's advantage. 54 In the circumstances of this particular case the direction given by the judge was sufficient to address the real issues between the parties and there was in my view no real prospect of the jury misusing the evidence by embarking upon tendency reasoning. I am not persuaded that, in the absence of any request by defence counsel at the trial for any further direction, a miscarriage of justice has occurred. The ground of appeal should be rejected. Ground 2 Unreasonable verdict 55 It is unnecessary to set out the approach upon which this Court determines such a ground of appeal. In essence the Court is required to consider all the evidence at the trial and determine whether the jury should have had a reasonable doubt about the guilt of the accused notwithstanding its advantage in having seen the complainant give evidence: see the discussion in TK v R [2009] NSWCCA 151. 56 It must be said that this ground was argued somewhat faintly during oral argument. However, in written submissions the appellant relied upon the fact that the complainant had admitted telling lies during the course of her evidence and that there were "major inconsistencies between the version given to police and other witnesses". 57 As to the issue of the complainant admitting to having told lies, I have already referred to the fact that the complainant said to the Crown that the misconduct had occurred on only three occasions yet she agreed that she had told the police the truth. When in cross-examination it was pointed out to her that her evidence was contradictory as she had told the police that it had happened on more than three occasions, the complainant stated that what she had said to the police was true and what she had said in evidence was untrue. She explained this conduct on the basis that she was embarrassed and she became emotionally upset. When the cross-examiner returned to this topic, the complainant said that she feared having to go to court on another occasion to deal with the other allegations. 58 In my opinion it was well open to the jury to determine that the contradictory evidence and her explanation for it did not affect her general credit and the reliability of the particular complaints that gave rise to the charges in the indictment. They were in a far more advantageous position than this Court to evaluate the significance of that evidence in having seen her demeanour during this part of her testimony. 59 I appreciate that in many cases demeanour can be an unsafe guide to reliability or at least a tribunal of fact can give too much weight to demeanour. But in this case the jury had seen her demeanour at the time she made the interviews with the police and it would have been obvious from what is apparent in the transcript that she was reticent in telling the interviewer what she alleged the appellant had done to her. It will be recalled that the interviewer offered her the opportunity to write down her complaint because she was having difficulty in verbally answering questions. She was a teenager at the trial trying to tell a jury what happened to her at the age of 8 and became distressed at having to give evidence. Clearly the jury were willing to excuse her dishonesty about a matter that did not go to the heart of the charges because they understood why she had said what she did. I would take the same view even without having seen her giving the relevant evidence. 60 Similarly the jury would have understood why there was a discrepancy between what she told police and what she told her aunt. It would not be difficult for a jury to accept that a 10 year old child, who was reticent with the police over revelations that clearly embarrassed her, would be more forthcoming with her aunt. 61 The appellant also submitted that the medical evidence was not neutral, as it was categorised during the trial, but was inconsistent with the complainant's allegation as to the frequency of the conduct. In my opinion it was open to the jury to accept the prosecution argument that this was a case of "innocent exaggeration" by the complainant who was merely indicating that sexual misconduct of some form or other happened frequently when her mother was not at home. The jury could well determine that the complainant was not to be taken literally and certainly not to the extent of suggesting that on every occasion she was left alone with the appellant he indulged in penile penetration of her. 62 It was also argued that the complainant's evidence was unreliable because it was apparent that she could not recall the specific incidents upon which the prosecution case was based at the time of the trial. Reliance was placed upon the number of times that the complainant had answered questions asked in cross-examination with "I don't know" or "I don't remember". However, the question for the jury was principally whether her account given to the police seven years earlier was reliable. A relevant matter was the effect of cross-examination upon her, but it did not follow that the jury should have rejected her initial complaint made years earlier. 63 The appellant submits that the Crown case contained such discrepancies and was so inadequate that it was not open to the jury to be satisfied of the complainant's evidence beyond reasonable doubt. I do not agree. 64 Having considered the whole of the evidence, but taking into account that unlike the jury I have not seen the complainant give evidence, I am unpersuaded that the verdicts of the jury were unreasonable or that there is a significant possibility that an innocent man has been convicted. This ground should be rejected. 65 The appeal should be dismissed. 66 HISLOP J: I agree with Howie J. **********

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