Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: KSC v R [2012] NSWCCA 179
• Hearing dates: 22 March 2012
• Decision date: 23 August 2012
• Before: McClellan CJ at CL at [1]; Davies J at [140]; Fullerton J at [141]

Decision

1. Leave to appeal convictions in relation to Grounds 2, 3, 4, 5, 6, 7, 8, 9, and 10 is refused.

2. Appeal against conviction in relation to Ground 1 is dismissed.

3. Grant leave to appeal the sentence imposed with respect to the count of common assault being 2007/00016340-016 and the sentence imposed for that offence quashed. For that offence the applicant is sentenced to a fixed term of 3 months imprisonment commencing on 16 June 2012

• Catchwords: CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by evidence - whether verdicts inconsistent - where inconsistency explainable by evidence suggesting error in asserted date and location of offence - appeal dismissed.; CRIMINAL LAW - appeal - conviction - directions - whether trial judge made error in directions relating to delay in making of complaint - s 165B Evidence Act - leave to appeal refused.; CRIMINAL LAW - appeal - conviction - evidence - context evidence - whether trial judge erred in referring to "uncharged acts" - where trial judge used term "uncharged acts" on only one occasion - leave to appeal refused.; CRIMINAL LAW - appeal - conviction - evidence - tendency evidence - whether evidence of common assault properly admitted without tendency evidence notice - whether trial judge erred in failing to properly direct jury about manner in which evidence of common assault could be taken into account - where evidence admitted relied upon by applicant at trial - where no redirection sought by applicant at trial - leave to appeal refused.; CRIMINAL LAW - appeal - conviction - directions - whether trial judge erred in not cautioning the jury about use of evidence of uncharged acts as tendency evidence at time evidence given via DVD - where trial judge elected not to interrupt DVD of complainant's evidence - no objection made by trial counsel - direction of trial judge appropriate - leave to appeal refused.; CRIMINAL LAW - appeal - conviction - evidence - whether trial judge erred in admitting evidence of a protected confidence - where issues discussed with trial judge - whether trial judge erred in failing to require Crown Prosecutor to seek leave - no objection made by trial counsel - no miscarriage of justice - leave to appeal refused.; CRIMINAL LAW - appeal - conviction - directions - whether trial judge erred in failing to assist jury with meaning of "under authority" - whether trial judge gave binding direction of law to find that complainant "under authority" of applicant - where words of statute ordinary English words - where acceptance of evidence could only result in one conclusion - leave to appeal refused.; CRIMINAL LAW - appeal - sentence - whether sentence in relation to common assault manifestly excessive - sentence manifestly excessive - appeal upheld.
• Legislation Cited: Criminal Code (Cth); Criminal Appeal Rules; Criminal Appeal Act 1912; Evidence Act 1995; Criminal Procedure Act 1986
• Cases Cited: AE v R [2008] NSWCCA 52; Anderson v R [2010] VSCA 108; Chahine v R [2006] NSWCCA 179; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161; Darwiche & Ors v R [2011] NSWCCA 62; DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206; DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400; ES v R (No 1) [2010] NSWCCA 197; GG v R [2010] NSWCCA 230; (2010) 79 NSWLR 194; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187; Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439; MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; Moffitt v R [2002] NSWCCA 73; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; R v ATM (2000) NSWCCA 475; R v Bonat [2004] NSWCCA 240; R v Brownlow [2003] SASC 262; (2003) 86 SASR 114; R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241; R v Dao [2005] VSCA 196; (2005) 156 A Crim R 459; R v DH [2003] VSCA 220; R v Fry [2002] NSWCCA 127; R v Howes [2000] VSCA 159; (2000) 2 VR 141, 159; R v JJT (unreported, NSWCCA, 3 December 1997; R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82; R v Palmer [2005] NSWCCA 349; R v Parbery (2003) 141 A Crim R 43; R v Picken [2007] NSWCCA 319; R v Qin [2008] NSWCCA 189; R v RCC [2002] NSWCCA 347; (2002) 133 A Crim R 352; R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299; R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346; Rodden v R [2008] NSWCCA 164; (2008) 182 A Crim R 227; Rylands v R [2008] NSWCCA 106; (2008) 184 A Crim R 534; Sgardelis v R [2006] NSWCCA 338; Sheehan v R [2006] NSWCCA 233; (2006) 163 A Crim R 397; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; Taleb v R [2006] NSWCCA 119; TJ v R [2009] NSWCCA 257; (2009) 76 NSWLR 167; Toalepai v R [2009] NSWCCA 270
• Category: Principal judgment
• Parties: KSC (Applicant); Crown
• Representation: Counsel: P Lang (Applicant); M M Cinque (Crown); Solicitors: Martin Churchill Solicitors (Applicant); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2007/16340

Decision under appeal

• Date of Decision: 2009-11-06 00:00:00
• Before: Tupman DCJ
• File Number(s): 2007/16340

Judgment

1 McCLELLAN CJ at CL: The applicant was tried in the District Court with a jury in relation to 13 counts of sexual assault and one count of common assault that the Crown alleged had been committed between 1997 and 2003. The complainant was the niece of the applicant's wife who had come to live with them. The complainant was 12 years old in 1997 and 18 years old in 2003. The applicant was acquitted in relation to counts 2, 3, 12 and 14. The counts were pleaded as follows:

1. Between 30 October 1997 and 30 October 1998 at Elderslie in the State of New South Wales did assault the complainant in circumstances of aggravation, and at a time of the assault committed an act of indecency on the complainant;

2. Between 3 and 9 April 1998 at Yamba in the State of New South Wales did incite the complainant, being a person under the age of 16 years and who was under the authority of the applicant, to commit an act of indecency with the applicant;

3. Between 3 and 9 April 1998 at Yamba in the State of New South Wales did have sexual intercourse with the complainant a person aged 12 years, in circumstances of aggravation;

4. Between 27 January 1998 and 18 December 1998 at Elderslie in the State of New South Wales did have sexual intercourse with the complainant, a person between the ages of 12 to 13 years, in circumstances of aggravation;

5. Between 27 January 1998 and 18 December 1998 at Elderslie in the State of New South Wales committed an act of indecency towards the complainant, a person then under the age of 16 years, and who was under the authority of the applicant;

6. Between 1 January 1999 and 30 June 1999 at Elderslie in the State of New South Wales did have sexual intercourse with the complainant, a person aged 13 years in circumstances of aggravation;

7. Between 1 January 1999 and 30 June 1999 at Elderslie in the State of New South Wales did have sexual intercourse with the complainant, a person aged 13 years in circumstances of aggravation;

8. Between 7 December 1999 and 15 February 2000 at Elderslie in the State of New South Wales did attempt to have sexual intercourse with the complainant, a person aged 14 years, in circumstances of aggravation;

9. Between 7 December 1999 and 15 February 2000 at Elderslie in the State of New South Wales did attempt to have sexual intercourse with the complainant, a person aged 14 years, in circumstances of aggravation;

10. Between 7 December 1999 and 15 February 2000 at Elderslie in the State of New South Wales did have sexual intercourse with the complainant, a person aged 14 years, in circumstances of aggravation;

11. On or about 7 December 2001 at Elderslie in the State of New South Wales did assault the complainant;

12. Between 20 December 2002 and 29 December 2002 at Tuncurry in the State of New South Wales did have sexual intercourse with the complainant who was under the authority of the applicant, without the consent of the complainant and knowing she was not consenting;

13. On or about 13 December 2003 at Elderslie in the State of New South Wales did have sexual intercourse with the complainant, who was under the authority of the applicant, without the consent of the complainant and knowing she was not consenting; and

14. On 7 February 2004 at Elderslie in the State of New South Wales did have sexual intercourse with the complainant, who was under the authority of the applicant, without the consent of the complainant and knowing she was not consenting.

2 Count 1 carried a maximum sentence of 7 years imprisonment; counts 4, 6, 7, 8, 9 and 10 a maximum sentence of 10 years imprisonment; count 5 a maximum sentence of 5 years imprisonment; count 11 a maximum sentence of 2 years imprisonment; and count 13 a maximum sentence of 20 years imprisonment. Count 13 also carried a standard non-parole period of 10 years. The applicant was sentenced as follows:

• Count 1: a fixed term of imprisonment of 12 months, commencing on 16 October 2009 and ending on 15 October 2010;
• Count 4: a fixed term of imprisonment of 3 years, commencing 16 October 2010 and ending on 15 October 2013;
• Count 6 and 7: fixed terms of imprisonment of 3 years, commencing on 16 October 2011 and ending on 15 October 2014;
• Counts 8 and 9: fixed terms of imprisonment of 3 years, commencing on 16 October 2012 and ending on 15 October 2015;
• Count 10: fixed term of imprisonment of 4 years, commencing on 16 October 2012 and ending on 15 October 2016;
• Count 11: fixed term of imprisonment of 18 months, commencing on 16 October 2013 and ending on 15 April 2015;
• Count 13: imprisonment for 10 years, commencing on 16 October 2014 and expiring on 15 October 2024, with a non-parole period of 5 years, ending on 15 October 2019.

This resulted in an overall sentence of 15 years imprisonment with a non-parole period of 10 years. In sentencing the applicant for count 13, her Honour took into account one offence of accessing child pornography material via a computer, contrary to s 474.19 of the Criminal Code (Cth).

3 The appeal was brought out of time and accordingly the applicant seeks leave to overcome this issue. That application was opposed by the Crown, which submitted that the delay was not adequately explained and the lack of merit in the proposed grounds of appeal should lead to the application being refused.

4 The jury returned its verdicts on 20 March 2009. However, it was not until 6 November 2009 that the applicant was sentenced. A notice of intention to appeal was filed on 13 November 2009 and expired on 12 May 2010. A notice of application for extension of time to file a notice of appeal and notice of application for leave to appeal was filed 17 months later on 13 October 2011. The application was accompanied by an affidavit from the applicant's solicitor which details difficulties in retaining counsel, complications from another trial of the applicant and difficulties in obtaining a transcript as being responsible for the delays. Although the delay is well beyond that which was appropriate I would not, for that reason alone, deny leave to appeal. Accordingly, it is necessary to consider the merit of the proposed grounds of appeal.

5 There are further difficulties before leave to appeal is granted. The applicant acknowledges that Rule 4 of the Criminal Appeal Rules applies to Grounds 2, 4, 5, 8, 9 and 10. The respondent submitted that it also applies to Grounds 3, 6 and 7.

6 The applicant must establish that the particular ground is arguable and that a miscarriage of justice has resulted in order for leave to be granted: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 319; R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [20]-[24]. In order to establish a miscarriage of justice the applicant must show that he has lost a real chance of acquittal: R v Picken [2007] NSWCCA 319.

7 In Chahine v R [2006] NSWCCA 179 Johnson J said at [65]:

"There is no case for the grant of leave under Rule 4 unless the Court of Criminal Appeal is satisfied that the Applicant has an arguable case that the trial judge has made an error of law or is satisfied that the Applicant's conviction is otherwise a miscarriage of justice: Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Villa [2005] NSWCCA 4 at paragraph 74. The requirements of Rule 4 do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance of counsel to which he or she is entitled in the increasingly difficult task of giving appropriate directions to the jury: R v Wilson (2005) 62 NSWLR 346 at 353 [24]. If a summing up contains an error which could easily have been cured once the judge's attention had been drawn to it, and if the error has caused no miscarriage of justice, it is not appropriate to permit an applicant to seek a new trial on the basis of that error in the hope that he may do better with a different jury. The right to a fair trial operates in favour of both the accused and the Crown which prosecutes on behalf of the whole community: R v Wilson at 353 [24]."

8 In Darwiche & Ors v R [2011] NSWCCA 62, with respect to a ground asserting that the trial judge should have stayed the trial of her own motion, the Court (Johnson J, McClellan CJ at CL and James J agreeing) commented upon the significance of Rule 4 and an application for leave at [169]-[170]:

"There are a number of fundamental difficulties with this ground of appeal. The Court of Criminal Appeal is a court of error. The Court determines grounds of appeal, whether relied upon as of right or by leave, in accordance with ss.5 and 6 Criminal Appeal Act 1912. Rule 4 Criminal Appeal Rules requires the leave of the Court for a ground of appeal to be taken with respect to a direction, omission to direct, or decision as to the admission or rejection of evidence unless objection was taken at the trial to the direction, omission, or decision by the party appealing.

The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted on the basis of 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: R v Abusafiah (1991) 24 NSWLR 531 at 536. This ground, and a number of other grounds relied upon by the appellant Darwiche, have the flavour of an 'armchair appeal', where counsel not involved in the trial has gone through the record of the trial in minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted: R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at 319-330 [40]-[45]; Ilioski v R [2006] NSWCCA 164 at [155]. The appellant Darwiche's first ground is a clear example of such an appeal."

The Crown case at trial

9 The evidence of the complainant was given via a DVD recording made of the evidence she gave at a previous trial.

10 The complainant was born on 30 October 1985. Her father passed away in 1987. Her mother changed her address on a number of occasions and developed a mental illness, to the point where she could no longer look after the complainant. At the age of 9 years, the complainant was placed into DOCS care, and on 10 February 1995 was placed with her father's sister, D, and her husband, the applicant, who lived at Elderslie.

11 The applicant and D had two sons, M and G and one daughter, K. The youngest of the applicant's children was 6 years older than the applicant. The complainant initially shared a room with K, but within six months, when M moved out of the family home, she moved into M's old bedroom. The complainant stayed in this room when M moved back into the house about 18 months after moving out. The applicant started at St Paul's Catholic Primary School in year 4, and in year 7 began at Elderslie High School.

12 The applicant's house was single storey. There was a hallway that began at the front door and extended down the length of the house. The hallway was divided in the middle by a door. To the left of the front door was a study, then the master bedroom with en suite. On the right was a large lounge/formal dining room. Past the middle door, on the left was the kitchen/dining area, then the rumpus room. On the right was K's bedroom, a bathroom, another bedroom, the complainant's bedroom and a laundry.

13 In general, the Crown case was that the applicant had engaged in systematic sexual abuse of the complainant. It was alleged that the applicant had begun to exhibit inappropriate behaviour towards the complainant shortly after the complainant had commenced to live with the applicant and D.

14 About a week after the complainant had moved in, the applicant began to tell the complainant to come and sit on his lap and give him a hug, and he would hug her as well. The complainant said that this made her feel special. On one occasion, when the applicant was reading at his desk in the study and the complainant was sitting on his lap, the applicant began to stroke her upper thigh and rub her vagina on the outside of her underwear. The complainant said that the applicant had a bulge in his jeans while he was touching the complainant and continued to have a normal conversation with her while this was going on. The applicant continued to touch the complainant in this manner at every opportunity. The complainant said that because the complainant enjoyed cuddling the applicant and craved his affection, she did not say anything to anyone about the touching.

15 The evidence indicated that the applicant would look at pornography when sitting at the desk with the complainant on his lap. The pornography was stored in the pigeonholes behind the seat. The complainant said that while looking at the pornography, the applicant would slide his hand under the complainant's underwear and rub the inner lips of her vagina. He would have an erection and look up at the sky with a glazed expression on his face. The incidents occurred at times when D was out of the house but also at times when D was home. The door in the middle of the hallway was often closed, making it possible to hear if someone was approaching the study.

16 The officer in charge, Detective Sergeant Gregory Lee, found pornographic magazines, including two entitled Velvet and Just 18, during a search of the applicant's premises. Pornographic videos, including one entitled Teenage Sex Wild Party, were also found.

17 The complainant would have her bath in the bathroom between the bedrooms. The applicant would often come in and wash the complainant, saying she did not know how to wash herself. When the applicant washed the complainant he would glide his hand along her vagina.

18 Some time after the complainant moved into the house, a spa was installed in the en suite bathroom. The complainant would sometimes use it with her friends. When the applicant wanted to use the spa by herself the applicant would go into the bathroom with her. The applicant would touch her vagina over and under her swimming costume. This happened a number of times until the spa broke down.

19 Every night the applicant would put the complainant to bed. Often he would put his hands up the complainant's boxer shorts and caress her vagina and insert his finger. The applicant continued to put the complainant to bed during her teenage years. On one occasion when the complainant was about 16, M and his partner, J, were at the house when the applicant was about to put the complainant to bed. J told the complainant that she was too old to be put to bed by the applicant. The complainant then told the applicant that she did not need to be put to bed any more and he replied, "Aren't I good enough any more", or "Too old to be put to bed" or "Don't need me anymore".

20 Evidence about the way in which the applicant's relationship with the complainant developed and early instances of inappropriate touching were relied upon by the Crown as evidence of the context within which the relationship had developed and the charged events occurred. Charges were not laid against the applicant in relation to these acts.

21 The Crown case in relation to the acts that constituted counts 1 - 14 may be summarised as follows:

(1) Count 1 (aggravated indecent assault): On one occasion, when the complainant was 11 or 12 years old, she walked past the master bedroom and the applicant told her to come inside the room. No-one else was home at the time. The applicant told the complainant to lie down and she lay down on the bed next to him. The applicant was watching a pornographic video. The video showed naked women frolicking around a house, and then one woman gave another woman oral sex on a lounge.

The applicant told the complainant to touch herself. The complainant replied the she did not want to. The applicant was stroking his penis. He said, "[D] loves women when I stick my fingers up her cunt". He then told her to enjoy it and to lay back and relax. The applicant touched her vagina. The complainant thought that the touching was above her clothing. She got up and left quickly.

The applicant was found guilty of count 1.

(2) Count 2 (aggravated incite act of indecency): During Easter of 1998 the complainant, the applicant and D went for a holiday to Yamba. The complainant was 12 years old. They stayed in a house opposite Pippi Beach. Late one afternoon, the applicant asked the complainant to go fishing with him. D encouraged the complainant to go. The complainant did not wish to go in case something happened, but went anyway. The applicant drove the complainant to a place that the applicant referred to as "the Point". The complainant was sitting in the front passenger seat.

The applicant pulled over to the side of the dirt road. He pulled down his pants, exposing his erect penis. He then said to the complainant "Go on, kiss it". The complainant said that she did not want to, and could they just go fishing. They then drove on and went rock fishing for about an hour.

The applicant was found not guilty of count 2.

(3) Count 3 (aggravated sexual assault of a child aged between 10 and 16): After the applicant and the complainant had been rock fishing for about an hour they began to drive back to the house. It was evening. As they were driving the applicant reached across and began to touch the complainant's vagina. He put his hand down her pants and inserted his finger into her vagina. The complainant began to cry and asked him to stop. The applicant told the complainant to stop crying.

The applicant then pulled into a pub where the applicant had a beer and the complainant had a cola. When they returned to the house at Yamba, D asked whether the complainant had been crying. She said no and went to her room.

The applicant was found not guilty of count 3.

(4) Count 4 (aggravated sexual assault of a child aged between 10 and 16): When the applicant was 12 years old and in year 7 at school, she had a phone conversation with her friend C. They were talking about a boy at school on whom the complainant had a crush. The complainant heard what sounded like someone picking up another extension of the phone. The complainant said that she wanted to impress the boy and that she would shave her legs and wear her hair out the following day.

The next morning the complainant was at the table in her summer school uniform. The applicant asked the complainant to sit on his lap. She told him that she did not want to. The applicant said "Come on, sit on my lap. You are making things harder for yourself". He also said " Come on, there you are trying to impress some bloke, got your hair out, shaved your legs". The applicant grabbed the complainant and sat her on his lap. She tried to get off. The applicant grabbed the complainant by the arm and dragged her into the hallway where he threw her against the wall. The complainant was upset and crying. She slid down the wall.

The applicant picked the complainant up and threw her onto her bed. The applicant pulled down the complainant's underwear and put his head between her legs. The applicant licked the complainant's vagina. The complainant was screaming, crying and slamming her knees against his head. The applicant told the complainant to "Shut the fuck up" and kept going.

The applicant was found guilty of count 4.

(5) Count 5 (aggravated act of indecency): The applicant then got up, went to a cupboard in the hallway and got a towel. He knelt by the bed and told the complainant to watch. The applicant masturbated and ejaculated into a towel. The applicant then threw the towel into the laundry

The applicant was found guilty of count 5.

After this incident the complainant knew that she could not avoid the applicant any more. She believed that he would keep molesting her and that if she did not allow it to happen he would become violent.

(6) Count 6 (aggravated sexual assault of a child aged between 10 and 16): In 1999 the complainant began at a new school, St Patrick's. St Patrick's is an all-girls Catholic school. Often when the complainant returned home from school she and the applicant were the only people at home. One day, at the beginning of 1999, the applicant told the complainant to come to the formal lounge/dining room of the house. He told her to take her clothes off. The complainant was lying on the floor directly before the window at the front of the house. The window had drapes that enabled a person in the house to see out, but prevented someone outside the house from seeing in.

The applicant had his tongue between the complainant's legs and was licking her vagina. The complainant told him that she did not want him to do so but the applicant told her to relax.

The applicant was found guilty of count 6.

(7) Count 7 (aggravated sexual assault of a child aged between 10 and 16): The applicant stopped licking the complainant's vagina and asked the complainant to suck on his penis. He took off his pants. His penis was erect. He told her "I want you to gargle, gargle my sperm and show me that you enjoy it". The complainant performed oral sex on the applicant and he ejaculated into the complainant's mouth.

The applicant was found guilty of count 7.

(8) Count 8 (attempted aggravated sexual assault of a child aged between 10 and 16): On an occasion during the 1999/2000 Christmas Holidays the applicant offered the complainant a glass of wine, so as to relax her. She told the complainant that she did not want it. The applicant then told the complainant to come to his bedroom. They went into the bedroom and the applicant said "You're developed enough now...It won't hurt...just relax". The complainant took off her clothes and lay on the bed. She was upset, crying and repeated "I don't want to". The applicant lay on top of the complainant and attempted to put his erect penis inside of her. His attempts were unsuccessful. The applicant went to the en suite and obtained some lubricant. He lubricated his penis and the applicant's vagina. He then attempted to insert his penis into the complaint a second time. The second attempt was also unsuccessful. The complainant was crying and in pain. She squirmed back on the bed and said "This isn't working". She then got up, got her clothes and went back to her bedroom.

The applicant was found guilty of count 8.

(9) Count 9 (attempted aggravated sexual assault of a child aged between 10 and 16): On another occasion during the Christmas holidays the applicant asked the complainant to go to the front bedroom of the house and said "Let's try and have sex again". The applicant pulled a condom out of his pocket and put lubricant on his penis and the complainant's vagina. He unsuccessfully attempted to insert his penis into the complainant's vagina. The complainant was crying and told the applicant that it hurt and that she wanted him to stop. The applicant attempted to have intercourse with the complainant for approximately 10 minutes. When it was over she went to her bedroom.

The applicant was found guilty of count 9.

(10) Count 10 (aggravated sexual assault of a child aged between 10 and 16): Later during the 1999/2000 school holidays the applicant was successful in his attempts to penetrate the complainant. The applicant then had intercourse with the complainant until he ejaculated. It lasted for approximately 5 minutes. The complainant was crying and in pain.

The applicant was found guilty of count 10.

Following this event, the applicant would frequently have sexual intercourse with the complainant. Many of the instances of intercourse were not charged.

(11) Count 11 (assault): On 30 October 2001, the complainant turned 16 years old. On 6 December 2001 the applicant went to her year 10 formal with a boy, N. The applicant and D drove the complainant and N to the formal and picked them up afterwards. The complainant saw D and the applicant peering through the window at the formal venue while she was resting her arm on N's shoulder before she was picked up.

The following day the applicant was in a bad mood. Only the complainant and the applicant were at home. The complainant asked the applicant what was wrong. He said "You're a fucking liar. Piece of shit. You're a cunt. You said that - you said that that bloke was only your friend and I saw you with your arm around him". The complainant was scared by the applicant's aggressive behaviour. The complainant followed the applicant to the bathroom and tried to hug him to calm him down.

The applicant told her to get out and shut up. He kicked her down the hallway and into the rumpus room. The applicant then pulled the applicant to the floor and strangled her with his hands around her neck. The applicant said "I am going to kill you...Fucking liar". After about 30-60 seconds, the applicant released the complainant. The complainant went into the lounge room and was shaking and crying. The applicant said: "I am so sorry. I can't believe I did that to someone I love...You are my best friend...I am so sorry for hurting you, I will never do that again, I just went into a white rage". The complainant told the applicant that if he ever did that again she would leave.

The applicant was found guilty of count 11.

(12) Count 12 (aggravated sexual assault): During the Christmas Holidays in 2002 the complainant, the applicant and D went on holidays to Forster. They stayed in Tuncurry in an apartment. One afternoon during the trip the applicant told D to go for a walk because she needed to start exercising. D went out.

After D left the applicant tackled the complainant onto the bed in a playful manner. He said "Come on mate, let's have sex". The complainant said "No, I don't want to, I don't want to". The applicant said "Come on, come on, it won't take long". The applicant then had sex with the complainant. The complainant told the applicant to hurry up. The applicant was not crying. When the applicant had finished she went and had a shower.

The applicant was found not guilty of count 12.

(13) Count 13 (aggravated sexual assault): In December 2003 the complainant went to schoolies on the Gold Coast. She returned home at 8:30 pm on Saturday 13 December. No one was home when the complainant unpacked her bags. The applicant arrived home shortly after. The applicant asked the complainant how her trip was and if any men had come back to her room. The applicant smelt of beer. He said "You have changed. You have met some bloke up in Queensland. You are acting different towards me". He then said "Come on mate, come up to the front room" (the lounge/dining area). She said, "I don't want to. I hate you and you disgust me".

The complainant was crying. The applicant began to have sex with the complainant. The complainant was angry. She scratched the applicant's back and told the applicant that he was disgusting. She told him that he was an old man and that he made her feel sick. The applicant ceased having intercourse with the complainant and told the complainant that she was putting him off. The complainant called the applicant a disgusting paedophile.

The applicant was found guilty of count 13.

(14) Count 14 (aggravated sexual assault): On 7 February 2004 the complainant was preparing to attend a 21st birthday lunch with her boyfriend, B. The applicant said "Come on, let's have sex". No-one else was in the house. The complainant told the applicant that she did not want to. The applicant said "Come on mate come on". She said "I will give you head instead". The applicant replied "It's not the same". The complainant said "[BH] is coming to pick me up". The applicant and the complainant then went into the front room and the complainant performed oral sex on the applicant. The applicant ejaculated into the complainant's mouth. The complainant then got ready and left with BH.

The applicant was found not guilty of count 14.

22 The complainant gave evidence that on 20 March 2004, shortly after the events giving rise to count 14, the applicant "kicked" the complainant out of the house following an argument. During the course of the argument the applicant threw a bowl of ice cream at the complainant, grabbed her by the neck, pushed her into a corner and tried to strangle her. The complainant made a formal statement to the police about the physical assault. She later made another statement to the police saying that she did not wish proceedings against the applicant in relation to the physical assault to proceed because, though the assault had occurred, the applicant had always been good to her and had never physically abused her before. The complainant gave evidence that she made the later statement because she loved the applicant despite all that had happened, that she felt pressured by the family and that she wanted to move on with her life.

23 After leaving home the complainant told a number of people, in general terms, that the applicant had sexually abused her, however the complainant did not make a formal statement to the police about the sexual abuse until May of 2006.

24 There are 10 grounds of appeal against conviction and one ground of appeal against sentence.

Ground 1: The convictions of the [applicant] in relation to counts 1, 4-11 and 13 are unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912 and in light of the [applicant's] acquittal in respect of [counts] 2 and 3.

25 Section 6(1) of the Criminal Appeal Act 1912 provides that a verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence. The test to be considered when determining if a verdict is unreasonable was recently confirmed by the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11] - [14]:

"The task of the Court of Criminal Appeal

It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."

The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." (footnotes omitted)

26 The Crown case was founded on the evidence of the complainant. Although other witnesses were called, they provided limited evidence in relation to the surrounding circumstances. The Crown case was dependent upon the jury accepting the complainant's evidence. In the course of the directions given by the trial judge her Honour made plain that in order for the jury to return a verdict of guilty for any of the counts on the indictment they would have to be satisfied beyond reasonable doubt that the complainant's evidence was the truth.

27 The jury returned verdicts of guilty with respect to counts 1, 4-11 and 13 and verdicts of acquittal with respect to counts 2, 3, 12 and 14. It was submitted that, as a matter of "logic and reasonableness", the acquittals on counts 2 and 3 demonstrated that the jury approached its task in an unreasonable fashion and that, accordingly, the convictions on the remaining counts cannot stand: MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366-368 (Gaudron, Gummow and Kirby JJ); R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [6] (Spigelman CJ, Grove J, Carruthers AJ agreeing).

28 The applicant accepted that the not guilty verdicts for counts 12 and 14 can be reasonably explained on the basis that the jury was not satisfied beyond reasonable doubt that the complainant did not consent to the acts giving rise to those counts. In the course of their deliberations the jury sent a question to her Honour seeking elaboration about the legal definition of consent. At the time the events in counts 12, 13 and 14 took place the applicant was over the age of 16. Accordingly, consent was a significant issue in relation to those counts at trial. I am satisfied that the verdicts in relation to counts 12 and 14 can be explained by the fact that the jury were not satisfied in relation to the issue of consent. The verdicts of acquittal in relation to these counts do not form part of the applicant's argument under this ground of appeal.

29 The applicant submitted that there was no logical basis on which the verdicts of not guilty in relation to counts 2 and 3 could be reconciled with the guilty verdicts in relation to the other counts.

30 It was submitted that the complainant's evidence in relation to each count was detailed and that there was no apparent difference in the quality of her evidence on any particular count: AE v R [2008] NSWCCA 52 at [35] (Bell JA, Hulme and Latham JJ).

31 The applicant emphasised that he had given evidence denying any sexual interaction with the complainant. Furthermore, he had said that it would be physically impossible for him to digitally penetrate the complainant because of the fact that following an accident his right wrist had restricted movement and his left wrist does not actually have a wrist joint.

32 It was submitted by the applicant that the evidence in relation to the counts upon which he was convicted was of events that were not linked to a specific time or location, making it practically impossible for the applicant to adduce evidence to refute those allegations with any precision. However, it was submitted that when the complainant's evidence was referable to a specific time or event (as was the case with her evidence in relation to counts 2 and 3) and there was positive evidence refuting her evidence, the jury returned a not guilty verdict. This, it was submitted, raised concerns that the jury had improperly cast a burden of proof upon the applicant: R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 at [122] (Simpson J, McClellan CJ at CL and Latham J agreeing). It was submitted that once the jury were not satisfied beyond reasonable doubt of the veracity and accuracy of the complainant's evidence on counts 2 and 3, it must reasonably have harboured similar doubts in relation to the remaining counts.

33 The applicant submitted that it could not be said that the Crown case in relation to counts 1 and 4-10 was any stronger than in relation to counts 2 and 3. There was no additional evidence that was capable of corroborating the complainant's account: see Moffitt v R [2002] NSWCCA 73 at [11] (Stein JA). It was submitted that such additional evidence as there was went to peripheral matters. Accordingly, it was submitted that there was no evidential basis for distinguishing between the various counts. The applicant invited consideration of R v Fry [2002] NSWCCA 127 at [18]-[19] where Ipp AJA said:

"Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. There are a number of possibilities which may have led to the jury acquitting the appellant on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished his overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of his evidence concerning the incident, the subject of the second count.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first count. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that his evidence was more reliable in relation to the first count than it was in relation to the second count."

The applicant also referred to Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439 at 455 where Gaudron, McHugh and Gummow JJ said:

"[N]othing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory."

34 It was further submitted that the verdict could not be explained on the basis that the jury was unwilling to place reliance upon the complainant's memory of events related to counts 2 and 3 because her memory may have been distorted by the passage of time. The jury accepted the complainant's evidence in relation to count 1. The applicant submitted that the events giving rise to this count must have preceded the events giving rise to counts 2 and 3. This submission is not strictly correct. The events giving rise to count 1 were alleged to have occurred between the dates of 30 October 1997 and 30 October 1998. The events giving rise to counts 2 and 3 were alleged to have occurred at a time that fell within the time period specified for count 1, namely between 3 and 9 April 1998. However, regardless of the specific dates, it is plain that the events giving rise to each of the three counts were alleged to have taken place within a similar time frame. Accordingly, it was submitted that the jury must have been satisfied that the complainant was able to recollect events which dated back to the time when counts 2 and 3 were said to have occurred.

35 It was submitted that the apparent ability of the complainant to recollect events was borne out by the manner in which she gave evidence. The applicant referred to R v RCC [2002] NSWCCA 347; (2002) 133 A Crim R 352 at [7] where Sully J said:

"[The count] alleged, once again, an episode of violent conduct, the incidents of which were clear, uncomplicated and vivid. Once again, there was... no room for a supposition that the complainant was honestly mistaken in her recollection of, and in her recounting of, the incidents particular to the count."

36 The applicant emphasised that the evidence given by the complainant in relation to counts 2 and 3 was of a similar standard to the evidence the complainant gave in respect of the other counts: R v Qin [2008] NSWCCA 189; R v Markuleski (2001) 52 NSWLR 82, 101 Spigelman CJ, quoted with approval in R v Parbery (2003) 141 A Crim R 43, 55 at [42] per Buddin J:

"There are cases in which nothing at all appears to differentiate the complainant's evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case the MacKenzie test of "logic and reasonableness" is not satisfied."

37 Furthermore, it was submitted that it could not be said that there was any distinction in the way in which the various allegations were reported, or the complaints made. It has been accepted that consistency of the allegations made by a complainant in relation to one offence rather than another may explain why a jury convicts an accused in relation to the former, but acquits in relation to the latter: see R v JJT (unreported, NSWCCA, 3 December 1997) at 6 (Gleeson CJ). However, again it was submitted that in the applicant's case the various counts could not be distinguished on this basis.

38 It was further submitted that short of the positive evidence that the applicant was able to put forward in relation to counts 2 and 3, there was no distinction between the various counts. All counts involved sole reliance upon the complainant's account, which was flatly denied by the applicant. As Sully J said in Sgardelis v R [2006] NSWCCA 338 at [51]-[52]:

"[T]he trial was conducted both by the Crown and by the defence in completely clear and completely consistent terms respectively; and those competing cases were starkly and diametrically opposed. There were no shades of grey in either of the competing cases. One was a case of clear and consistent refusal of consent; the other was a case of clear and consistent consent; or, at the very least, a reasonable, clear and consistent perception of clear and consistent consent.

I acknowledge, of course, that the jury was not bound to accept either the whole of the complainant's evidence or the whole of the appellant's case at trial. I apprehend, however, that the triteness of that proposition ought not to be permitted to obscure the need for a jury when accepting part only of a particular body of evidence to discriminate upon the basis of reason rather than that of raw intuition."

39 It was submitted that it could not be said that "the jury may have formed the view that a verdict of guilty on the main count was sufficient to reflect the applicant's culpability": Rylands v R [2008] NSWCCA 106; (2008) 184 A Crim R 534 at [48] (Mason P) citing with approval R v Markuleski at [75]-[77] (Spigelman CJ), at [227]-[230] (Wood CJ at CL); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34] (Gleeson CJ, Hayne and Callinan JJ). It was submitted that counts 2 and 3 each related to one of numerous incidents alleged by the complainant and it could not be said that the conduct was encompassed in the remaining charges, particularly in the light of the fact that count 3 represented the first allegation of sexual intercourse. Given the age of the complainant, this was a particularly serious allegation. The applicant accepted that it was significantly more serious than the first count (which, by comparison, alleged a "mere touching") and of which the applicant was convicted. There would also be no reason why the jury would perceive counts 2 and 3 to be less serious than, for instance, counts 4 and 5. Similarly, nor could it be said that the particular acquittals were as a result of a compromise on the part of the jury: R v TK at [133]-[134] (Simpson J).

40 In conclusion, it was submitted that there is no "proper way by which" the acquittals on counts 2 and 3 can be reconciled with the convictions on the remaining counts: Mackenzie v The Queen at 366 (Gaudron, Gummow and Kirby JJ).

41 In arriving at this conclusion, it was submitted that it was appropriate to have regard to a number of other features of the case. In R v Bonat [2004] NSWCCA 240 Sperling J said at [116]:

"Having regard to the totality of relevant factors - the factually inconsistent verdicts, the complainant's evidence being wholly uncorroborated, the discrepancies in the complainant's evidence, the delay in complaint and the appellant's unshaken denials - the convictions do not stand the test of logic and reasonableness required by the authorities."

42 It was submitted that this case exhibits many of the same features as Bonat. In particular the applicant emphasised that on 20 March 2004, the complainant attended the police station, stating the applicant had assaulted her. When giving a statement two days later the complainant said "[the applicant] has always been good to me and has never physically abused me before". The applicant submitted that this statement is highly significant as the complainant had moved out of the applicant's house by the time the statement was made and would no longer have been under a compulsion to conceal the applicant's alleged wrong-doing. However, the allegations of sexual assault were only made some 2 years later, in May 2006.

43 Therefore, it was submitted that verdicts of acquittal should be entered in relation to each count of which the applicant was convicted.

Conclusion on Ground 1

44 It is not uncommon for juries to bring in different verdicts in relation to particular counts when a series of alleged sexual assaults are prosecuted. Where it is submitted that the inconsistency of verdict bespeaks a failure in the jury to properly discharge its obligations, it is important to appreciate that there is no general rule that where prosecution of several offences depends upon the testimony of the complainant, acquittal on one or more counts compels a conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts on which they have convicted: MFA v The Queen at [35] (Gleeson CJ, Hayne and Callinan JJ commenting on misconceptions arising from the judgment in Jones v The Queen). The circumstances of a particular case may justify different verdicts: McKenzie v The Queen at [397] (Gaudron, Gummow and Kirby JJ).

45 As I said in TK v R at [6]-[7]:

"It seems to me that there are problems in an appellate court concluding that because a jury does not convict on one or more counts any conclusion as to the general creditworthiness of a complainant can be drawn. As the judgments in Markuleski point out there may be many reasons why a jury does not convict on a particular count. The High Court has been careful to emphasise that an appellate court must allow for the advantage of the jury when considering questions arising under s 6(1) of the Criminal Appeal Act. The most significant advantage is assumed to be that of observing the witness as they give their evidence. It is a very significant step to conclude that the reason for the jury's decision to acquit on any count is that they were so unable to accept the complainant's evidence on that count that her evidence was not capable of founding a conviction on another count. The consequence of such a decision by an appellate court is that the jury has not been faithful to the fundamental directions from the trial judge, namely that the Crown must prove its case beyond reasonable doubt on each count. As the law presumes that the jury has been faithful to a trial judge's directions (HML v R [2008] HCA 16; (2008) 245 ALR 204 per Kirby J at [52]; Gilbert v R (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J), the starting point for any analysis must assume that this is so. The burden of satisfying the appellant court that there has been a miscarriage of justice rests upon the appellant.

It is important to remember when considering the problem of inconsistent verdicts that a jury does not have to be satisfied beyond reasonable doubt that all of a complainant's evidence is an accurate or even truthful account of all of the facts relevant to all of the counts. It may be, and in fact may often be the case, that a complainant's recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts. As Wood CJ at CL pointed out in Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events. It may be that, having been reminded of the problems of uncorroborated evidence by the trial judge, before a jury convicts on any count where the primary evidence is of the complainant, it will seek out matters in the surrounding evidence which are consistent with the complainant's account. It may also be that where the jury finds amongst the surrounding evidence that there are some inconsistencies with the complainant's evidence it will be unable to return a guilty verdict on a particular count."

46 Counts 2 and 3 were alleged to have occurred during the period from 3 April to 9 April 1998 at Yamba. This placed them in a short time frame and at a specific location. In his closing address defence counsel pointed out the "problems" with the complainants evidence in respect of these counts including that:

• the complainant said they went fishing to a place called the Point, but there was no place of that name at Yamba - only at Forster (where the applicant said they had been on holidays on another occasion);
• the complainant was unable to identify the road leading to the beach at Yamba from photographs and a DVD 'drive-thru" by police;
• the complainant thought the area shown in exhibit 4 looked like the area which she claimed was Yamba (whereas it was actually a photograph of Forster); and
• the applicant and D gave evidence that the complainant had not been fishing with the applicant during the trip to Yamba in April 1998.

47 In her summing up, the trial judge emphasised these issues and told the jury on five occasions that in order to convict the applicant of either count 2 or count 3 they had to be satisfied beyond reasonable doubt that each occurred between the dates 3 April to 9 April 1998 and at Yamba.

48 I am satisfied that the explanation for the acquittals on counts 2 and 3 is that the jury believed that the complainant had made a mistake as to the time and most likely the place where the alleged events occurred. The verdicts of not guilty do not mean that the jury concluded that the alleged events did not happen. Rather, I believe that the jury concluded that they may well have happened but at a different location or at a different time.

49 It follows that, although the jury acquitted in relation to counts 2 and 3, the verdicts on the other counts should not be set aside for this reason. There was evidence in relation to each of the other counts that the jury was entitled to accept. The jury had the advantage of seeing and hearing all of the evidence and it is plain from the verdicts that they gave close attention to their task. A reading of the transcript leaves me without any doubt that the jury were entitled to accept the complainant's account of each of the counts upon which the applicant was convicted.

50 I would reject Ground 1 of the appeal.

Ground 2: In directing the jury on the forensic disadvantage suffered by the [applicant], as a result of the delay in the making of the complaint, her Honour erred in that she framed the direction in the form of mere comment, rather than as a warning.

51 The trial that is the subject of this appeal was the applicant's second trial for the pleaded counts. It commenced on 23 February 2009. This Court has previously determined that when a trial commences after 1 January 2009 s 165B of the Evidence Act controls the directions that the trial judge must give in relation to delay: GG v R [2010] NSWCCA 230; (2010) 79 NSWLR 194 at (Beazley JA, Buddin J and Barr AJ agreeing).

52 Section 165B is in the following terms:

"165B Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section:

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable."

53 It follows that a trial judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of delay (sub-section 4) and must not give a direction otherwise than as provided for by the section (sub-section 5). However, if the court is satisfied that delay has occasioned a significant forensic disadvantage to an accused the court must inform the jury of the nature of the disadvantage and instruct them of the need to take that into account when considering the relevant evidence (sub-section 2).

54 Accordingly, any direction relating to a delay that has occasioned a significant forensic disadvantage to the applicant was required to be the subject of a direction pursuant to s 165B of the Evidence Act 1995.

55 At the trial the terms of an appropriate direction were discussed by the trial judge with counsel and the form of the direction to be given was ultimately agreed between them. The direction the trial judge gave was in the following terms:

"There is a further direction that I must give you relating to this issue of delay, the delay in complaint being made by the complainant. It is most important that you appreciate fully the effects of delay on the ability of the accused to defend himself in relation to some of these counts by testing the prosecution evidence or by bringing forward evidence in his own case to establish a reasonable doubt about his guilt."

56 Later in the course of her summing up the trial judge said:

"Because the accused has been put into this situation of significant disadvantage he has been prejudiced in the conduct of his defence. As a result you must give the prosecution case, for these counts that I have referred to, most careful scrutiny before you could consider returning any verdict of guilty. In carrying out that scrutiny you must bear in mind the matters that I have been speaking about. The fact that the complainant's evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence, or challenge it, or to support his own defence."

57 Notwithstanding the amendment introducing s 165B of the Evidence Act the submissions by the applicant in relation to this ground of appeal appear to have assumed that the trial was not to be conducted in accordance with that provision. The submissions emphasised the statements by this Court in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161; JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187. In each of these cases emphasis was placed on the need for a "warning" to be given and not simply a comment or caution. Spigelman CJ commented upon the strictures of this approach in DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400.

58 Before this Court it was submitted that although the word "warning" need not be used (TJ v R [2009] NSWCCA 257; (2009) 76 NSWLR 167), the need to "warn" was not properly satisfied by the trial judge telling the jury that evidence must be scrutinised with great care: Sheehan v R [2006] NSWCCA 233; (2006) 163 A Crim R 397 at [115]-[116] (Kirby J).

59 I reject the submissions of the applicant. In the present case the form of direction that the trial judge gave was appropriate and in accordance with a direction which trial counsel accepted as adequately responding to the situation. I am not persuaded there is any substance to this ground of appeal and would refuse leave to appeal under Rule 4.

Ground 3: when directing the jury on the manner in which it could take into account so called "context evidence" her Honour erred in referring to such acts as "uncharged acts".

60 The Crown led evidence of a number of acts alleged by the complainant that were not the subject of individual counts. The evidence was admitted as being necessary to establish the context in which the matters the subject of the charges were alleged to have occurred. In directing the jury in relation to the evidence of matters other than the matters alleged in the indictment the trial judge said:

"You cannot reasonably say 'look we are not satisfied beyond reasonable doubt about one or all of the specific charges brought by the Crown because we do not think the evidence proves them but we think he committed one of these uncharged other acts so we will convict him of one of the specific offences in substitution, even though we are not satisfied beyond reasonable doubt that the evidence actually establishes that he committed that specifically charged offence."

61 The applicant complained about the use of the word "uncharged". It was submitted that it was "ill chosen".

62 In HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [129] Hayne J remarked that it would usually "be better not to describe the evidence of other events of a sexual kind as evidence of 'uncharged acts'". His Honour said:

"Uncharged acts suggest that what is described could have been the subject of charges. That may not be right. The conduct described may not be criminal; the description of the conduct may not be sufficiently specific to found a charge. Describing the events as 'uncharged acts' may invited speculation about why no charges were laid."

63 Kiefel J said at [492] that:

"It may not be desirable for a trial judge to describe the acts as 'uncharged' to a jury since it may convey a view, on the part of the judge, that they were proper subject for charges."

64 It is clear from the remarks of Hayne and Kiefel JJ in HML that their Honours would prefer that expression "uncharged acts" was not used during a trial. However, the other judges in HML did not express that view and it would seem that there is no considered view that the use of the expression constitutes an error: see Gleeson CJ at [1] and Crennan J at [399]. For my own part, I believe it preferable not to use the expression. It carries with it the clear implication that the "other acts" could have been the subject of charges but were not, which may invite a jury to speculate as to why they were not charged and in this way distract them from considering the charges that were preferred.

65 In the present case the trial judge used the expression only once during the course of detailed directions about the manner in which the jury should approach evidence of the relationship between the complainant and the applicant. In the course of those directions, in contrast to the single reference to uncharged acts, the trial judge referred to "other acts" on 22 occasions.

66 As it happens, the jury acquitted the applicant of four of the counts. It must follow that the jury were not diverted from their task by the single reference to "uncharged acts".

67 Trial counsel perceived no problem in the directions given by her Honour. I would not grant leave pursuant to Rule 4 in relation to this ground of appeal.

Ground 4: Her Honour erred in permitting evidence of the assault of the complainant by the [applicant] on 20 March 2004 to be adduced even though:

(a) the prosecution failed to comply with the notice requirements set out in s 97(1)(a) Evidence Act 1995;

(b) the probative value of the evidence was outweighed by the danger of unproved prejudice to the [applicant]; or alternatively

(c) the probative value of the evidence did not substantially outweigh its prejudicial effect.

Ground 5: Her Honour erred in failing to direct the jury adequately, or at all, on the manner in which the evidence of the assault on 20 March 2004 could be taken into consideration by the jury.

68 It is appropriate to consider Ground 4 and Ground 5 together.

69 The first trial of the applicant ended without the jury being able to agree as to the appropriate verdict. In accordance with the procedures set out in s 306I of the Criminal Procedure Act 1986, a DVD of the complainant's evidence at the first trial was played in the course of the second trial. As part of her evidence the complainant recounted an alleged assault on her by the applicant on 20 March 2004.

70 The prosecution disclaimed any use of the evidence as tendency evidence. Instead it was relied upon to indicate the "context" in which the charges arose. It was submitted by the applicant that the evidence occasioned an injustice to the applicant because its relevance was never rigorously evaluated in accordance with the obligation of the trial judge as explained in DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206 at [29] (McClellan CJ at CL); Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [80] (McClellan CJ at CL); R v ATM (2000) NSWCCA 475 at [72] (Howie J).

71 It was further submitted that although the trial judge gave the jury directions in relation to other alleged incidents of sexual assault and the care with which the jury must approach those matters, similar directions were not given in relation to the evidence of the assault that allegedly occurred on 20 March 2004. It was submitted that the directions that were given did not extend to the use that could be made of the evidence of the assault.

72 It was submitted that the only basis upon which the evidence could have been admitted was that it provided evidence of the applicant displaying jealous behaviour when the complainant formed a relationship with a boy. In the course of his address to the jury, the Crown Prosecutor emphasised the jealousy that the applicant had demonstrated towards the complainant forming this relationship.

73 It was submitted that evidence of jealousy is tantamount to what has been referred to as "motive evidence" which was discussed by Hodgson JA in ES v R (No 1) [2010] NSWCCA 197 at [38]-[40]:

"Where a person is charged with one or more sexual offences against a child, evidence of uncharged inappropriate sexual contact between the accused and that child can have probative value. In my opinion, there are (at least theoretically) three broad ways in which it can do so:

(1) As context evidence (so that the charged acts are not seen unrealistically as being isolated);

(2) As motive evidence (disclosing a sexual interest in the complainant that could motivate the charged acts); and

(3) As tendency evidence (disclosing a tendency to have a particular state of mind and/or to act in a particular way, including a tendency to act on the sexual interest that the accused has).

However, although there is in my opinion a theoretical distinction between categories (2) and (3) (see Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [48]-[67], HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [155]-[158] per Hayne J, [273]-[279] per Heydon J), and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard at [68], [101].

Consistently with this, it is now well established that if evidence of uncharged acts is to be used in such cases in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272."

74 There is a significant distinction between the issues with which Hodgson JA was concerned and the present controversy. The acts which Hodgson JA referred to as "uncharged acts" were of sexual activity which his Honour concluded will generally have manifested a tendency for an accused to act on a sexual interest towards the complainant. As a consequence, although it may be described as motive evidence, it is in reality tendency evidence, which his Honour concluded necessarily had to be dealt with in accordance with the "rules" in respect of such evidence.

75 The evidence in the present case was of a physical assault devoid of sexual activity. As it happens, defence counsel sought to use this evidence to his advantage. No objection was taken to it and it is plain that he took this course because he wished to draw attention to the circumstances in which the complainant first approached the police about the applicant. In his opening defence counsel said:

"As the Crown said it is not in dispute that the complainant never alleged any sort of sexual misconduct against the accused until well after the March 2004 event which I will speak to you of in a moment. It is not in dispute that she was given an opportunity, you will hear evidence that she spoke to a number of people, that she spoke to a school counsellor, that she spoke to someone at Camden Hospital, pay particular attention to what she said to them and what she didn't say to them. It is not in dispute that she spoke to a doctor. All these opportunities were there and even on the Crown case there was no suggestion at that particular stage."

76 Later, in his opening remarks defence counsel said of the evidence:

"The Crown I suggest made reference to that because they know that it is a significant piece of evidence that you will need to consider because it stands in stark contradiction to her later allegations which don't arise until after this."

77 The Crown Prosecutor did link the assault to alleged jealousy by the applicant of the relationship that the complainant was forming with her boyfriend. When the applicant was challenged about this, his response to the Crown Prosecutor's question was: "I was upset about [the complainant's boyfriend] sneaking into my house; that's all".

78 The Crown Prosecutor argued that the circumstances of the alleged assault in March 2004 bore a remarkable similarity to the incident which constituted count 11 in the indictment. The Crown Prosecutor linked the assault to the proposition that the applicant had a controlling and jealous attitude towards the complainant. It was said that this was generated by the fact that the applicant was having sexual intercourse with the complainant on an ongoing basis over a long period of time.

79 It was submitted that the similarities between the events which allegedly occurred on 20 March 2004 and count 11 created a considerable risk of prejudice to the applicant. Photographs of the complainant's injuries were tendered, which, it was submitted, were likely to increase the risk of prejudice.

80 The applicant also complained to this Court that the Crown had inappropriately cross examined the applicant and suggested to him that he was a violent person prone to rage in relation to the complainant. It was submitted that, as a consequence, there was a risk that the jury would have employed propensity reasoning in that it may have concluded that the applicant was prepared to use violence. It was submitted that this reasoning may have led to a conclusion that the applicant was prepared to employ violence in order to procure the complainant to perform sexual acts against her will. Accordingly, it was submitted that the probative value of the evidence was outweighed by the risk of unfair prejudice. It was further submitted that, although the jury were warned against the use of other sexual acts as tendency evidence, it was not warned that it could not use the evidence of the assault on 20 March 2004 in this manner.

81 To my mind, the events of 20 March 2004 and the complaint to the police that followed were an integral part of the context of the various charges.

82 It is plain that rather than object to the tender of the evidence defence counsel sought to turn it to the applicant's advantage. It may be that the evidence reflected jealousy toward the complainant's boyfriend. However, it was also capable of significantly influencing the jury's attitude toward the complainant and the veracity of her evidence. Given the tactical need for material with which to damage the complainant's credit, this evidence provided the applicant with a significant forensic opportunity. So much is plain from the directions of the trial judge which included the following:

"It was also put to you on behalf of the accused that further, there did not seem to be any evidence of those who were members of the household, noticing any injuries sustained by the complainant at the time, which you might have thought would have been seen if the events as described by her, which it is argued, were described to be fairly violent episode towards her, if such events had occurred as alleged. For all of more general reasons about your assessment of the complainant, it is argued that you would not accept her as a witness of truth in relation to that event, at the very least you would have a reasonable doubt and a sense of unease.

You are also reminded of course, and I have taken you to this already, that when she did leave the home after the events of 20 March 2004, which was in fact an admitted episode of physical violence by the accused towards her and went to the police two days later and made the complainant that she did about that episode of physical violence, that she subsequently, having asked the police not to proceed with the charge against him, said in her statement, I have already put this to you, 'that [the applicant] has always been good to me and has never physically hurt me before.' You are reminded that that, at the very least, is a significantly inconsistent statement compared with what is said to be this fairly major episode of violence occurring on 7 December 2001."

83 The applicant's counsel did not seek any redirection in relation to this issue. This is not surprising. The events of 20 March 2004 were not challenged by the applicant who sought the advantage that he had by distinguishing those events from the alleged sexual assault. Furthermore, that event was followed by the complainant making a report to police before later requesting that the police withdraw the charge on the basis that the applicant had not hurt her previously.

84 In the circumstances, I am not persuaded that there is substance to either Ground 4 or Ground 5. I would refuse leave pursuant to Rule 4 to raise either ground of appeal.

Ground 6: Her Honour erred in failing to caution the jury, at or about the time at which DVDs of the complainant's evidence were played, against using evidence of uncharged, sexual acts as tendency evidence.

85 As I have previously indicated, the complainant's evidence was given by the playing of a DVD of the evidence she had previously given. That DVD contains the directions given by the previous trial judge including warnings with respect to the impermissible use of evidence as tendency evidence. Defence counsel drew this to her Honour's attention before the DVD was played and indicated that he personally did not "particularly like those sort of directions but it's a direction which was appropriate and was given with the (imprimatur) of previous trial counsel".

86 Her Honour responded that she was not inclined to interrupt the DVD to give further directions as she was of the view that the evidence needed to flow. Her Honour acknowledged that there were difficulties about evidence being given in this way and, in particular, that if the equipment was turned off there would be a 30 second delay in turning it on. The matter was not again raised by defence counsel and the evidence was played.

87 Later, her Honour addressed the jury at length about the use they could make of "the evidence of other acts". Counsel for the applicant in this Court conceded that her Honour's directions were unobjectionable, but it was submitted they were not capable of remedying the failure to give appropriate directions at the time the evidence was given.

88 It is plain that the trial judge faced practical difficulties with the playing of the DVD and the efficient and effective management of the trial. The course that her Honour took ensured that the jury were aware of the care with which the evidence should be approached having regard to the directions given by the previous trial judge. Her Honour discussed this issue with counsel and there was no complaint made as to the course that her Honour proposed to take and which ultimately she followed.

89 Although not ideal, the direction that her Honour ultimately gave adequately emphasised the directions that the jury were already aware from viewing the DVD. In the absence of complaint at the trial, I am not satisfied that any miscarriage of justice was occasioned by the course taken. I would dismiss this ground of appeal. It is not necessary to consider whether Rule 4 applies.

Ground 7: Her Honour erred in failing to direct the jury adequately that evidence of prior, uncharged sexual acts could be used only to demonstrate that the charged acts were not isolated incidents and not as evidence of a tendency by the [applicant] to groom the complainant.

90 The need to warn the jury in clear terms that they cannot apply tendency reasoning to context evidence has been addressed by this court on a number of occasions; Qualteri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206. In DJV I said at [29]-[31]:

"In Qualteri at [112] this Court emphasised the necessity for a trial court to ensure that it critically analyses attempts by the prosecution to tender evidence otherwise than as tendency evidence. It must again be emphasised that it is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context.

The need for care in identifying the basis upon which the evidence is admitted, either tendency or context, must be emphasised. In HML, Gummow, Kirby, Hayne and Keifel JJ state (see Hayne J at [247]) that where evidence is tendered to prove a propensity, being the sexual interest of an accused in a complainant, the jury must be told that they must be satisfied of that interest beyond reasonable doubt (see also Howie J in Toki [2000] NSWSC 999; (2000) 116 A Crim R 536; R v Hagerty [2004] NSWCCA 89; (2004) 145 A Crim R 138; Gipp at [76]; R v TAB [2002] NSWCCA 274; R v RNM [2005] NSWCCA 396. In MM [2000] NSWCCA 78; (2000) 112 A Crim R 519, this Court divided on the question). The four members of the High Court who reached this conclusion may not be entirely consistent in their reasoning (see Kirby J at [61] and Keifel J at [505]-[506]) and HML was decided having regard to the common law. However, unless after full argument of the issue this Court or the High Court says otherwise, this Court should accept that in sexual assault cases the appropriate standard of proof of tendency evidence is beyond reasonable doubt.

Context evidence does not require a direction that it be proved beyond reasonable doubt. Where the evidence is of similar sexual misconduct but the jury are told it has only been admitted to explain aspects of the relationship and they may not use the evidence to reason toward guilt, the expectation that they will understand and remain faithful to the direction may not be on firm ground: see Kirby J in HML at [57]. To be told that the accused did the same thing on a number of other occasions but that you cannot use that evidence to reason that he did it on a particular occasion is contrary to ordinary human experience (see the discussion by Debelle J in R v M, RB [2007] SASC 207; (2007) 172 A Crim R 73 at [63] ff). The jury must be left in no doubt that they cannot follow that line of reasoning. The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted."

91 The applicant submitted that the warning that her Honour gave against using the evidence of other acts as tendency evidence failed to limit the use of the evidence in that way. In support of this submission the applicant drew attention to part of the summing up which was in the following terms:

"It is important that I explain to you the relevance of this evidence of other acts. It was admitted solely for the purpose of placing the complainant's evidence of the particular acts charged against the accused by the Crown, to put the charges in the indictment into what the Crown says is a realistic context. That context, the Crown argued to you, was one of increasing sexual contact initiated by the accused towards the complainant from shortly after she came to live with them right up until the time of the first specific counts in the indictment, count 1, in circumstances where he was persuading her that such behaviour was normal, desensitising her to sexualised behaviour and, on the Crown argument, grooming her so that she would engage in that behaviour with him."

92 Although the applicant did not refer to it, in the portion of the summing up which immediately followed her Honour both developed the direction and provided the jury with appropriate warnings in relation to the use of the evidence. Her Honour said:

"On behalf of the accused it is argued that, far from seeing this evidence of other acts as providing some sort of realistic context in which to understand the evidence of specific counts, you would find the complainant's account of these other acts as generally being quite unrealistic as evidence seeking to establish the context which has been referred to on behalf of the accused as being either unreal or surreal.

However, what ever you might make of both of those arguments from the Crown and from the accused, that is the basis upon which the evidence is before you, that is to prove, or to establish, context and that is the only basis on which the evidence of other acts has been admitted. Otherwise you may wonder about the likelihood of apparent isolated acts over 9 years occurring suddenly without any apparent reason. If the complainant gave evidence of isolated acts of sexual misconduct you might be entitled to think that it was very odd for there to be such isolated acts between those persons. If you had not heard the allegations that I am talking about, you may have thought that the complainant's evidence was less credible. Of course it goes without saying for it to have that flavour and for it to be used in that way, you would have to accept the complainant's evidence of these acts as being truthful and reliable.

If, however, the particular acts charged are placed in what is said to be the wider context, ie the context of what is alleged to be an ongoing history, then that 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. Therefore it is open to the Crown to lead evidence of other alleged acts of a sexual nature between the accused and the complainant, even though they are not the subject of specific charges.

However, I must give you some important warnings with regard to this evidence of other acts which are admitted into evidence, as they are here only to prove a context. 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. In other words you must not reason or say to yourself, well if he did all these other things that the complainant alleges then he must be the sort of person who behaves in this way so he must have committed the specific charges alleged in the indictment. You must not substitute the evidence of these other acts for the evidence required to establish the specific offences in the indictment. In other words you cannot reason or say, 'look we are not satisfied beyond reasonable doubt about one or all of the specific charges brought by the Crown because we do not think the evidence proves them but we think he committed one of these uncharged other acts so we will convict him of one of the specific offences in substitution, even though we are not satisfied beyond reasonable doubt that the evidence actually establishes that he committed the specifically charged offence.' You must not reason that because the accused may have done something wrong to the complainant on another occasion, he must have done so on the occasions in the indictment."

93 Her Honour did, on more than one occasion, emphasise to the jury that they could only use this evidence if they believed that the complainant's account was "true".

94 The essence of the applicant's complaint is that in the course of his closing address the Crown Prosecutor submitted that the applicant had, over a period of time, seduced the complainant. He submitted that "the Crown case is that the sexualised behaviour was in effect a kind of progressive seduction - a grooming process if you will and you see the Crown case is and this is [the complainant's] evidence ..." It was submitted that by putting the matter in this way the Crown Prosecutor invited the jury to engage in tendency reasoning.

95 In the course of the summing up her Honour referred to the Crown Prosecutor's argument. However, she did so having explained to the jury that it was important to explain the relevance of the evidence of other acts and that it was:

"admitted solely for the purpose of placing the complainant's evidence of the particular acts charged against the accused by the Crown, to put the charges in the indictment into what the Crown says is a realistic context. That context, the Crown argued to you, was one of increasing sexual conduct initiated by the accused towards the complainant from shortly after she came to live with them right until the time of the first specific counts in the indictment, count one in circumstances where he was persuading her that such behaviour was normal desensitising her to sexualised behaviour and, on the Crown argument, grooming her so that she would engage in that behaviour with him."

96 The applicant sought to utilise the remarks by Howie J in Toalepai v R [2009] NSWCCA 270 at [45] to support his submission. In that case Howie J discussed the decision of this Court in Rodden v R [2008] NSWCCA 164; (2008) 182 A Crim R 227.

97 In Rodden the Crown in addressing the jury had referred to the evidence of 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. Howie J said:

"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 failed 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."

98 Howie J went on to indicate that in a case where tendency is raised for the jury's consideration by reason of some evidence that is placed before it for the purpose of proving a propensity on the part of the accused, 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". This was because once a jury had been alerted to the concept of tendency reasoning it should be directed when such reasoning was available and when it was not. His Honour said at [44]:

"The distinction should be drawn between evidence admitted to prove a propensity and evidence not admitted for that purpose. Juries should be directed in clear terms, that if they reject the tendency reasoning arising from specific evidence they could not use that reasoning in relation to other evidence that was admitted for that purpose."

99 At issue in Toalepai and Rodden was the consequence of the fact that the trial judge had not given a warning against tendency reasoning.

100 In the present case, although the Crown did suggest that the evidence of other acts disclosed a process of grooming of the complainant, her Honour was careful to direct the jury that it must confine the relevance of that evidence to the issue of context. Her Honour gave a comprehensive warning to the jury that it must not use the evidence as establishing a tendency on the part of the applicant to commit the offences charged. I am satisfied that the directions which her Honour gave were adequate and appropriate. No complaint was made by trial counsel and I would refuse leave under Rule 4 to raise this ground of appeal.

Ground 8: Her Honour erred in permitting the Crown to adduce evidence of a protected confidence, contrary to the prohibition found in s 298 Criminal Procedure Act 1986.

101 During the trial evidence was given by Ms Versace, a social worker, which included the following conversation between herself and the complainant:

"Q: What was that she said was causing her fear and anxiety?

A: She told me she was afraid of her home situation, at that time she was living with her uncle, she said she'd been there since the age of 9 living with her aunt and uncle because her father had passed away and her mother was unwell and that her uncle had increasingly become more demanding and threatened to kill [the complainant] and her boyfriend if they didn't comply with his demands and his rules that he had put in place."

102 The applicant submitted that this evidence was of a protected confidence as defined by s 296(1) Criminal Procedure Act 1986 and for that reason was inadmissible.

103 Section 296(1) of the Criminal Procedure Act 1986 provides that a protected confidence means "a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence". Subsection 4(a) in turn defines a "counselling communication" as being "a communication ... made in confidence by a person ("counselled person") to another person ("the counsellor") who is counselling the person in relation to any harm the person may have suffered ...".

104 Subsection 5 provides that a person "counsels" another person if:

"a. The person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and

b. The person:

(i) listens to and gives verbal or other support or encouragement to the other person, or

(ii) advises, gives therapy to or treats the other person,

whether or not for fee or reward."

105 Ms Versace was trained as a social worker and was employed in that role at Camden Hospital at the relevant time. Part of her duties included the assistance of persons who came to the hospital in times of crisis. She met the complainant in her professional capacity and in that role gave her advice.

106 Section 296(2)(b) of the Act provides that a counselling communication is a protected confidence even if it was not made in connection with a sexual assault offence. Although the counselling communication of Ms Versace to the complainant was not made in the context of the present charges it is nevertheless a protected confidence within the meaning of the section.

107 Section 298(3) provides that evidence is not to be adduced in a criminal proceeding if it would disclose:

"a. a protected confidence, or

b. the contents of a document recording a protected confidence,

unless the court gives leave to adduce the evidence."

108 It was submitted that in the present case although the issue was discussed the trial judge was not asked to and did not give leave for Ms Versace to give the relevant evidence. It was submitted that the error by her Honour was the failure to require the Crown Prosecutor to seek leave to ask the question. This purported error was similar to that identified in R v Brownlow [2003] SASC 262; (2003) 86 SASR 114 at [43]. Although s 300(1) of the Act provides that the complainant could have consented to the use of the material, it was submitted there was no relevant consent. Section 300(2) requires that the consent be in writing.

109 This issue was not raised at the trial and accordingly leave pursuant to Rule 4 is required.

110 To my mind the applicant's submission is entirely without merit. The issue was discussed between the trial judge and defence counsel during the first trial when the latter indicated that he was content for the evidence to go in "provided your Honour is happy the preconditions are met".

111 In the present trial the issue of evidence of privileged communications being given was again discussed. Although there is confusion in the transcript as to which witness is being referred to, it is apparent that the complainant had no objection to the privileged evidence being given. However, it is also clear that the terms of the legislation were not complied with. They should have been.

112 Notwithstanding, the question for this Court is whether, in the absence of the statute being complied with there has been a miscarriage of justice.

113 It is plain that defence counsel wanted the evidence of Ms Versace before the jury. In the course of his address to the jury he emphasised that although the complainant had consulted Ms Versace she had not complained about being sexually abused. This was obviously a matter of significance and, accordingly, the evidence of Ms Versace was evidence favouring the applicant. The privilege provided by the statute is a privilege that belonged to the complainant. I am satisfied that she had no objection to the evidence being given. I am further satisfied that the giving of the evidence in circumstances where the statute had not been complied with did not give rise to a miscarriage of justice. Leave to argue this ground of appeal should be refused.

Ground 9: In relation to count 13, her Honour erred in failing to assist the jury with the meaning of the expression "under authority" as employed by s 61J(2)(e) Crimes Act 1900.

Ground 10: In relation to count 13, her Honour improperly usurped the jury's function, by giving it what would have been understood as a binding direction of law, to find the aggravating circumstances of "being under the authority" of the applicant to have been proven beyond reasonable doubt, if accepted the evidence of the complainant.

114 At the trial defence counsel applied for a directed verdict of not guilty in relation to counts 13 and 14. The application was based upon two grounds. One ground was that there was no evidence capable of proving that the complainant was "under the authority" of the applicant. The application was dismissed.

115 One of the arguments which the trial judge rejected was that because the complainant was 18 years old by the time that counts 13 and 14 were alleged to have occurred she could not, as a matter of law, be under the authority of the applicant.

116 In the course of her summing up the trial judge provided the jury with some written directions which her Honour discussed with them. In relation to this issue she said:

"So I am going to give you some directions now about what that means. First of all the definition which I have read out to you and that is a person is under the authority of another person if the person is in the care or under the supervision or authority of that other person. That is the legal definition of this concept relevant to this trial. You might immediately notice that it is a very wide definition."

117 Later her Honour returned to counts 12, 13 and 14 and said this:

"Now for each of those charges as brought, the Crown must also prove beyond reasonable doubt, that is 12, 13 and 14, that the complainant was under the authority of the accused. I went through that with you in relation to the earlier counts for which that is relevant, that is one to ten inclusive and I gave you the definition that a person is under the authority of another person if the person is in the care or under the supervision or authority of the other person and I said to you that you might think there was not any dispute that up until the time the complainant turned sixteen the Crown would be in a position to prove that she was under the authority of the accused and for that matter the accused and his wife. That was because of the orders made in the Children's Court which lasted until she was sixteen. But you also know that for counts 12, 13 and 14, she was over sixteen and that Children's Court order no longer had any effect and particularly so for counts 13 and 14 you know that not only was there no Children's Court order in place but by that stage she was eighteen and legally an adult capable of voting and doing all those things that come with legal adulthood, or legal majority.

The Crown, on the evidence, must prove to you for the way those charges have been brought 12, 13 and 14, that for each of these offences even if all of these other things you are satisfied of beyond reasonable doubt, that she was under his authority, that is the circumstance of aggravation that they rely on. To do so the Crown relies on a variety of pieces of evidence. Part of it is the same sort of evidence relied on in relation to some of the consent issues namely that the nature of the relationship between the accused and the complainant was one in which he had groomed her to go along with him, one in which he was dominant over her, and that you would accept that he was a domineering person, that you would accept on the evidence that he was a person who was fairly strict in his controls in the household. What is more the evidence relied on is that you would accept that she was still a member of that household, albeit for the last two as a legal adult, that for count 12 she was still a schoolgirl, reliant on the complainant and his wife and also it is put that you would accept the evidence of the complainant that even up until the time of the event that led to her leaving the household on 20 March 2004, she was asking for permission to go and see a soccer match and at that stage she was eighteen.

If you accept all of that evidence then you would be entitled to find that she was under the authority of the accused. On behalf of the accused of course you know the evidence is from him and from his wife. He denies that degree of control. You might think he was saying that he accepted that he was a fairly tough disciplinarian in the household. You might also think that he was saying to you that he thought he was doing what was best for her, trying to insist that she concentrate on her schoolwork and not go out with boys and the like. You know that he denied that she asked permission to go to the soccer match or that she should have felt it necessary to ask for that permission when she was eighteen.

You know he said that she had lots of friends, that she went out a lot, that some of those were boys during the earlier years, that you might think he was saying he did not much like [the complainant's boyfriend] and that there were others of her male friends who he did quite like in the past and you also know the evidence of course is that she did go to Schoolies for a week, although you also know evidence that he made a phone call during that which you may or may not think supports the Crown's contention of his control. In any event that is all of the evidence that you are entitled to take into account, to look at whether or not you accept beyond reasonable doubt that in fact she was under his authority and namely a person who is either in the care of or under the supervision or authority of the other person and the argument of course on behalf of the accused is not only would you not accept that some of this evidence was not correct or that some of what are said to be the glosses put on it are not correct, but that in fact in particular for the last two counts when she was eighteen you simply would not accept that as an adult it would be appropriate to find beyond reasonable doubt that she was under the authority of the accused. That would be a matter for you to decide."

118 The applicant submitted that in giving these directions the trial judge had failed to define the legal principles necessary for the determination of these counts: R v Dao [2005] VSCA 196; (2005) 156 A Crim R 459 at [21] (Buchanan, Vincent JJA and Byrne J). Although accepting that the trial judge's direction was "plainly correct" it was submitted that it was of no assistance to the jury. It was submitted that to state that a person is under the authority of another person if the person is under the authority of the other person is not helpful. Furthermore, it was submitted that the additional words "care" and "supervision" do not assist in determining the meaning of the expression "under authority".

119 It was submitted that her Honour should have provided the jury with more assistance and could have provided them with a dictionary definition of the terms appearing in s 61H(2) Crimes Act 1900. This was the procedure approved by Brooking JA in R v Howes [2000] VSCA 159; (2000) 2 VR 141, 159 at [57] and is consistent with the approach taken by the trial judge in R v DH [2003] VSCA 220.

120 It was submitted the error was compounded by her Honour's recitation of the evidence. It was submitted that "in practical terms her Honour's comments ... would have been understood by the jury to be a direction of law to the effect that they should find the element proven so long as the jury accepted the complainant's evidence". It was submitted that there was a need for the judge to be careful that in expressing a view about evidence the jury were not overawed: Taleb v R [2006] NSWCCA 119 at [76] (Simpson J).

121 It was submitted that without having been provided with a definition of the term "under authority" the jury was left with only one test to apply, namely whether it believed the complainant's account. It was submitted that it is plain that not every form of control constitutes "authority" for the purposes of s 61H(2). In Anderson v R [2010] VSCA 108 at [94] Weinberg J held that the applicant's control over the television remote and choice of movies did not mean that the complainant was under the authority of the applicant.

122 The issue was not raised by trial counsel and Rule 4 applies.

123 It is apparent that the issue of "under the authority of" was a vital issue at the trial. This is confirmed by the unsuccessful application for a directed verdict.

124 The applicant does not complain that her Honour erred in the directions she gave beyond a submission that the jury should have been given further assistance. Although in many cases a dictionary may prove useful, where the words of the section are clear there may be little to gain from resort to a dictionary. The words of a dictionary cannot be substituted for the words of the Act. In some circumstances reference to the words of a dictionary may constitute error.

125 I accept that by referring in terms to "authority" the definition in s 61H(2) is circular. However, the additional components of care or supervision make plain the nature of the relationship to which the section is directed. I see no reason why her Honour should have provided further assistance to the jury. Each of the words "care", "supervision" and "authority" are ordinary English words which the jury would have had no difficulty in understanding.

126 Her Honour was careful to provide the jury with assistance as to the evidentiary matters relevant to this issue. No complaint is made about the accuracy of her Honour's reference to the factual material. It is plain that if the jury accepted that evidence there could be only one conclusion in relation to this issue.

127 I would refuse leave to raise this ground of appeal.

Ground 11: the sentence imposed on the applicant by Goldring DCJ in respect of the assault on 20 March 2004 was manifestly excessive.

128 The applicant was tried and convicted for offences relating to other complainants before Goldring DCJ and a jury. At that time he also pleaded guilty to a charge of common assault of the present complainant. That incident, as discussed in relation to Grounds 4 and 5, occurred on 20 March 2004.

129 Goldring DCJ sentenced the applicant for those other charges, imposing a sentence of 5 years imprisonment commencing 16 June 2008 with a non-parole period of 3 years expiring 15 June 2011. His Honour imposed a sentence of 18 months with a non-parole period of 9 months for the assault of the present complainant. That sentence was ordered to commence on 16 January 2011 with the non-parole period to expire on 15 October 2011 and the total term to expire on 15 July 2012. The maximum penalty for the offence was 2 years imprisonment. The resulting sentence was concurrent with the sentence for the other charges for a period of 5 months.

130 The applicant successfully appealed his conviction in relation to the other charges. He also appealed the sentence for the assault of the present complainant. This Court determined that it would not grant leave to appeal that sentence. The majority said it should be reconsidered with the sentence for the present counts. As it happens, that sentence is wholly concurrent with the sentences imposed for those other counts.

131 The facts concerning the assault on which the applicant was sentenced was the subject of findings by Goldring DCJ. In summary it entailed throwing a bowl at the complainant, grabbing her throat and pushing her against a door whilst yelling at her. The sentencing judge concluded that it was "a violent and serious assault" and an "extremely serious type of domestic violence" committed by a person in the "position of the father" of the victim. His Honour found that the applicant's reaction was "violent and frenzied".

132 The plea was entered at a late stage and for that reason the sentencing judge found that only a "relatively small discount should be applied". His Honour noted that the matter could have been dealt with in the Local Court and accordingly the principles discussed by Hall J in R v Palmer [2005] NSWCCA 349 were relevant.

133 There was also evidence of a mental disorder that the sentencing judge took into consideration to ameliorate the sentence.

134 The sentencing exercise required of Golding DCJ was complex. His Honour was sentencing for sexual assaults of persons other than the present complainant but sentencing for common assault of the present complainant. As a consequence his Honour no doubt approached that sentencing exercise confined by the facts relating to the assault without a knowledge or appreciation of all of the offences involving the complainant with which the applicant was to be charged and ultimately convicted. Viewed in isolation the findings made by Golding DCJ were clearly open. However, as Schmidt J said when the application for leave to appeal was first considered "the assault was arguably one incident in a lengthy history of abuse of the victim ... . Such a conclusion would have a significant impact on whether one should conclude that the sentence for the assault was manifestly excessive".

135 The applicant does not challenge the sentences that were imposed on him by Tupman DCJ. This resulted in an overall sentence of 15 years imprisonment with a non-parole period of 10 years.

136 Although the common assault was serious and committed by the applicant in the context of a history of serious sexual abuse over many years, I am satisfied that the sentence which Goldring DCJ imposed was manifestly excessive. Although a bowl was thrown at the complainant and she was grabbed at the throat she did not suffer physical injuries. The bowl was thrown at the feet of the complainant and, although she suffered distress, her evidence to the sentencing judge indicated that she accepted that he reacted as he did when trying to gain her attention.

137 The sentencing judge accepted that the applicant was suffering from "quite severe mental problems". He had been identified as suffering from "chronic adjustment disorder, with depressed and anxious mood" and had features common to persons suffering from post-traumatic stress disorder. The applicant had previously been referred by the police service, with whom he was employed, for anxiety/depression management and had been diagnosed by a psychologist suffering from a mental disorder. He was sentenced at a time when he had no prior convictions although his Honour recognised that his conduct was part of a sequence of serious offending in relation to the complainant. In these circumstances it is plain, as the sentencing judge accepted, that although his condition did not absolve him from responsibility it lessened the degree to which general deterrence was relevant to the sentence to be imposed.

138 To my mind the appropriate sentence for the assault offence was a fixed term of 3 months imprisonment commencing on 16 January 2011. The sentence is wholly concurrent with the sentences that were otherwise imposed in relation to the applicant. In the circumstances I am satisfied that this is appropriate.

139 In my judgment the following orders should be made:

(1) Leave to appeal convictions in relation to Grounds 2, 3, 4, 5, 6, 7, 8, 9, and 10 is refused.

(2) Appeal against conviction in relation to Ground 1 is dismissed.

(3) Grant leave to appeal the sentence imposed with respect to the count of common assault being 2007/00016340-016 and the sentence imposed for that offence quashed. For that offence the applicant is sentenced to a fixed term of 3 months imprisonment commencing on 16 June 2012

140 DAVIES J: I agree with McClellan CJ at CL.

141 FULLERTON J: I agree with McClellan CJ at CL.

Decision last updated: 29 January 2013