Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Golding v R [2024] NSWCCA 129 Hearing dates: 7 June 2024 Date of orders: 17 July 2024 Decision date: 17 July 2024 Before: Basten AJA at [1]; N Adams J at [59]; Huggett J at [68] Decision: Pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, refuse the applicant leave to appeal on the ground contained in the proposed notice of appeal. Catchwords: CRIME – appeal against conviction – leave to appeal– challenge to jury directions – no objection taken at trial to proposed directions – no redirection or further direction sought – whether miscarriage of justice – application of Supreme Court (Criminal Appeal) Rules 2021, r 4.15 CRIME – miscarriage of justice – tendency evidence – context evidence – single count indictment – evidence of uncharged incident admitted as tendency and context evidence – jury directed to disregard evidence of uncharged incident if not satisfied it occurred – whether jury required to be directed that doubt as to uncharged incident should be considered in assessing complainant's evidence as to charge – inconsistency between Markuleski direction and proper consideration of tendency evidence and context evidence Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Procedure Act 1986 (NSW), ss 161A, 293A(2) Evidence Act 1995 (NSW), ss 97, 101 Jury Directions Act 2015 (Vic), ss 61, 62 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Astill v R [2024] NSWCCA 118 Day v Rex (No 2) [2023] NSWCCA 312 Greenhalgh v R [2017] NSWCCA 94 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Regina v GAR [2003] NSWCCA 224 Roos v R [2019] NSWCCA 67 R v Birks ((1990) 19 NSWLR 677 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Murray (1987) 11 NSWLR 12 RWC v R [2013] NSWCCA 58 Sita v R [2022] NSWCCA 90 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Zhou v R [2021] NSWCCA 278 Texts Cited: Criminal Trial Courts Bench Book (Judicial Commission of NSW) Category: Principal judgment Parties: Bruce Wayne Golding (Applicant) Rex (Respondent) Representation: Counsel: T Quilter (Applicant) G Wright SC (Respondent) Solicitors: Macquarie Law Group (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2021/184634 Publication restriction: Publication of any information that identifies the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 28 November 2023 Before: McHugh SC DCJ File Number(s): 2021/184634 JUDGMENT 1. BASTEN AJA: Following a trial by jury in the District Court, the applicant, Bruce Wayne Golding, was found guilty on one count of indecent assault on his step-grandchild (the complainant) who was then about six years of age. He was sentenced to a non-parole period of 18 months, to date from 6 October 2023, with a head sentence of three years. 2. At trial, the complainant gave evidence of a second incident involving the applicant which she said had occurred at his home in Queensland some two years after the incident in New South Wales. The sole issue on the proposed appeal concerned the trial judge's direction to the jury in relation to the Queensland incident. No objection as to the nature of the direction was taken by counsel for the accused at the trial, nor was any further direction sought. It was therefore necessary for the applicant to obtain a grant of leave to raise the ground, pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). 3. For the reasons which follow, the grant of leave required by pursuant to r 4.15 should be refused. Background circumstances Family residences chronology 1. The chronology of where the families lived at key times was agreed. The single charge on the indictment identified the indecent assault as having taken place between 6 April 2016 and 1 October 2017, at Cranebrook, a suburb of western Sydney just north of Penrith. Mr Golding lived with his wife Susan Golding in Seaton Crescent, Cranebrook, until they moved to Queensland in late June 2017. As the incident was said to have occurred in the Golding's house at Cranebrook, the latest date was June 2017. 2. The complainant lived with her mother, Stella Cook and her mother's partner, Shannon Cook (who is not the complainant's biological father). From early 2014, the Cooks, including the complainant, who did not go by that name, were living in Raceview, Queensland. It was an agreed fact that the family, by then including two other children, lived briefly in Penrith in January 2017 and then moved to Glenmore Park, a suburb close to but south of Penrith. The complainant's evidence was that the incident at Cranebrook occurred whilst she was living at Glenmore Park, to which the family moved on or about 6 March 2017. It followed that, despite the 18-month period identified in the indictment, the incident the subject of the charge must have occurred between March and June 2017. The complainant having been born in April 2011, turned six in April 2017. 3. About two or three months after the Goldings moved to Queensland in June 2017, the Cook family returned to Raceview, Queensland, a suburb of Ipswich, south-west of Brisbane and close to Yamanto, where the Goldings were living. In November 2017, the Goldings moved further west to Regency Downs. The later incident was to have occurred during a sleep-over involving the complainant at the Goldings' home in Regency Downs. In July or August 2019, the Cooks moved back to Sydney. 4. The first disclosure by the complainant occurred in March 2021. She was interviewed by an officer with the Joint Investigation and Response Team (JIRT) in April 2021, when the complainant was 10 years old. The complainant told the interviewing officers that the later (Queensland) incident had occurred two or three years earlier. She explained that as meaning that it did not occur "last year" (2020) but the year before that or the year before that. However, she was clear that she was living in Sydney at the time, which implied that it took place after the Cook family returned to Sydney in July or August 2019, when the Goldings were living in Regency Downs. Evidence of complaint 1. A school friend of the complainant gave a recorded police interview in March 2021 that she, another friend and the complainant were talking after a class "about abuse". She stated: [1] "Like she talks about something. She was like, 'I'm going to tell you something, something.' And then I was like, 'I'll tell my mum.' I thought it was a joke or something as she usually does. But then she was like acting all serious that I got in, you know, the last part. She said, 'I went to my grandparents' house' and she, she shooed me away a couple of times, but I just came in a little bit. And she said, 'I went to my grandparents' house and my mum and dad left me alone and my sister wasn't there too. And my grand, I had to sleep with my grandfather, and he made me do this and gave the sign." 1. The school friend in fact spoke to her mother who in turn contacted the school, leading the school to contact the complainant's mother. The Cooks spoke to the complainant at home on 31 March 2021 and recorded the conversation. At first the complainant was reluctant to talk but eventually asked, "do I have to see the person?" On being told "no", she said "Poppy Bruce". [2] She then identified where she was in the following terms: [3] "Complainant: At Nana Sue's. Mother: Where was Nana Sue? Complainant: In her bedroom. Mother: And where were you? Complainant: In Poppy, bru, Bruce's bedroom. … Father: So, what happened …? It's OK to talk about it. Complainant: Do you already know? Father: I want to hear it from you. Complainant: I don't want to say it. … Complainant: He made me touch his rude parts. Father: Just the once? Complainant: Yes. Father: And what did he tell you to do? Complainant: Nothing. … Mother: Was there clothes on or off? Complainant: His shirt was off. But, his pants were still on. And then, and then in the middle of the night I went in Nana Sue's bed." 1. Her parents then offered to get her a diary in which she could write. The conversation continued: "Complainant: I think also Nana Sue's house in Queensland. And, um, the one that, the old one that she had in Sydney. … Father: So, what happened there? Complainant: I think it happened there as well. … That was more ages ago. I can't really remember. I can't really, rem---." 1. Her father then asked if her siblings were there and she said "no". The father rang his mother, Ms Golding, that evening and the parents immediately contacted the police, who came to their home at 11:30pm. The police did not speak to the complainant that night. 2. Before turning to the JIRT interview with the complainant, it is convenient to note that the girl who reported the conversation to her mother gave evidence at the trial, but was challenged on only one issue: [4] "Q. Amongst the things that you told your mother that you'd heard between [the complainant and a second girl] and yourself on that day, was it [the complainant] had said in your presence that her grandfather always touched her in her private part area? That's something you told your mum, is it not? A. No. Q. So you didn't tell your mother that? A. I told my mum that she indicated an area that … (not transcribable)." [5] 1. The JIRT interview took place on 15 April 2021. The officer who conducted the interview, Constable Tasioulas, confirmed in her evidence at the trial that officers had attended the Cooks' home on the night of the parents' interview with the complainant. The recording of the JIRT interview was played to the jury. After some introductory questions about the complainant's understanding as to telling the truth, the officer asked: "Q22 … Tell me, what have you come to talk to me about today? A About what my pop in Queensland did. Q23 When was this? A Um, I think it was two or three years ago. I think I was 7 or I was 8 years old. Q24 O.K. And you said 'what he did'. What do you mean by that? A Um, like, what he did do? Q25 Mmm. A He, I was having a sleepover and, at my nan and pop's. And my nan had her own bedroom and my, my pop had his own bedroom and my brother and sister were there. And, um, they had their own room, my brother and sister. They had single beds on each side and it was in a different room. And then my nan had her own bed and then my pop had his bed, like I said. Um and he wanted me to sleep with him. And, um, then I slept with him 'cause I didn't know what was going to happen. I just thought we're going to sleep. And then he grabbed my hand and put it on his, um, penis. And, um, squeezed it, and then, my hand. And then it happened for twenty minutes or ten minutes or fifteen, about that time. And, um, then when he stopped, he made me lean on his chest and then, um, and then he went to sleep and I went, and then I woke up and then I went on my nan's bed." 1. The complainant was asked (Q47) whether she was living in Queensland at the time this happened and said, "No. Sydney." The interview continued: "Q60 … So Pop has asked you to go and sleep with him. Where is everyone in the house when he's had this conversation with you? A What do you mean? Q61 So where are you, in, in nan and pop's house, where are you when pop's come up and said that to you? A Um, I think we were in the lounge room watching a movie and my brother and sister were in their bed and then Nanny Sue [sic] was, my nan was on the lounge as well watching the movie. And I was sitting next to him and then he asked me. … Q65 … Do you remember what Poppy said? A When he asked me to sleep with him? Q66 Mmm. A He was, like, 'would you like to sleep with me?' And I'm like okay. Q67 Was that something that he'd said before? A I think so. I think it happened in Sydney. I think it happened two times, that thing. I, 'cause they were in Sydney and then they moved to Queensland while we were in Queensland and then we left. Q68 So what makes you think it happened two times? A Because I remember in the old house that they had in Sydney, they, um, had, like, um, they had, like, like a hallway and they had bedrooms. And, um, I remember him asking me, 'cause I was walking down the hallway to another bedroom to sleep with my nan. Q69 Ah-hmm. A And my brother wasn't even born, I don't think. Q70 … Yeah. A Yeah, just my sister. Q71 O.K. A And then he just, 'cause I was walking in the hallway, I think he said to me, 'would you like to sleep with me' and I said, 'yeah, O.K.' And then that happened. And then I, and then when it happened in Queensland, I was, like, O.K. 'cause I didn't know if he would do it again." 1. Under careful questioning, the complainant confirmed details, including that her grandfather was wearing jeans, that he placed her hand on his penis "inside" his clothing and that she could not feel his clothes. She was asked about him having put her head on his chest after he had removed her hand (Q109), to which she said, "he kind of moved my hair onto it and then he went like this and then just started patting it". 2. The complainant was asked if any other part of him touched her besides his hand on her head and she said "no". She described having woken up in the night and got out of the blanket and gone to her nan's room and slept on her bed for the rest of the night. She was asked about the following morning: "Q136 … And then the next day, did you see pop? A Yeah, I think so, but he, um, he had a sleep-in. And my nan was having a coffee. Q137 Yeah. A I didn't really want to tell her. Q138 Yeah. A And, and I was having breakfast. And then he woke up and then he, like, watering his garden, I think. Q139 O.K. A After he got dressed." 1. The officer then turned to the "incident in Sydney", and sought to clarify whether the complainant's four-year-old brother had been born. She was unable to remember. [6] Continuing in relation to the Sydney incident, the officer asked how old the complainant was and she said, "I think I was 5 or 6 I was that age but in Queensland, I think I was 6 or 7… or maybe 8". [7] She stated that the earlier incident occurred in her nan and pop's house in Cranebrook [8] and described the house. [9] When asked about the sleeping arrangements she said: "A Um, my nan was in her bedroom with my little sister in her bedroom that she had and I think my brother. And my pop has a room and he, I just, yeah, he came in the hallway when I was going to go there, um, he, he asked me if I wanted to sleep, so I said, 'yes, O.K." And then we yeah, that happened. … Q167 O.K. So what's happened after you said 'yes' when he's asked you? A Um, I just went in his bedroom and we, we laid in the bed and went to sleep and then, yeah, he did that technically he did the same thing as what he did in Queensland. Q168 … Do you know what you were wearing at the time? A Um, I think I was just wearing like a dress, a pyjama dress. Q169 And what was Poppy wearing? A He was just wearing a shirt and pants. He doesn't really wear shorts. Q170 … O.K. So you've gone into the bedroom and then what's happened next? A We went to sleep and then technically, he just quickly grabbed my hand and put it there. Q171 So were you asleep? A Um, no, I was half awake, half asleep 'cause I couldn't really go to sleep. Q172 Did he say anything? A No. Q173 And where did he grab your hand? A He, like kind of grabbed it on my wrist this time." Her demonstrations as she explained how he had taken her hand and put it on his penis and squeezed were described by the officer. 1. Again, she said that her hand was on his actual penis and she thought he had pulled his pants down. [10] The complainant described the feel of his penis as "very weird", "like, curved a bit" and "slippery". [11] She described her reaction as "very shocked … very weird and disgusted". [12] 2. Finally, she was asked if she had told anyone about this and said: "No. I did, I had to tell mum 'cause I told one of my friends and then one of my friends, um, told the, um, head of the stage and then she told my teacher and then we told the office ladies and they told my principal." [13] The complainant named the girl and the teachers. She was asked what happened when the principal had told her mum and stated: "A And then mum sat me down in the lounge one day and asked me what happened with Poppy Bruce and me. Q234 Yeah. A And I kind of got a bit scared and couldn't tell. Q235 Yeah. A And I didn't really want to tell. But then she just kept asking me, like, questions, so I had to tell little bits by bits." Deployment at trial 1. The evidence of the Queensland incident was relied on by the prosecution both as tendency evidence and as providing context to the charged offence. The evidence was objected to for tendency purposes but admitted in a pre-trial ruling, [14] which was not challenged on the appeal. Evidence at trial 1. Although there was no suggestion that the verdict was unsupportable or unreasonable, in order to address the claim of a miscarriage of justice resulting from the allegedly inadequate directions it is necessary to identify the essential evidence. 2. The complainant's JIRT interview was played to the jury. The cross-examination of the complainant dealt first with the Queensland incident. [15] She agreed that her family were living in Queensland (not NSW) at the time of the incident. It was suggested to her that there were only a "handful, up to five in the whole time" they lived there of sleepovers at her grandparents' house. She said, "probably a little more" and suggested "around nine or ten because we lived near that area". [16] 3. The cross-examiner clarified her evidence as to the sleeping arrangements in Queensland and she confirmed that her grandparents had their own bedrooms and described the bedroom closest to the room where she and her siblings slept as that of "Poppy Bruce". [17] It was then put to her that her grandparents did not occupy separate rooms and that they slept together "in his room which was closer to the room where you and your brother and sister slept". She asked for the question to be repeated which it was: [18] "Q What I'm suggesting to you is when you were in Queensland sleeping over, your grandparents would sleep in grandpa's or pop's bed together, not separately? A No, Nana Sue was like in a room at the front of the house. Q So you disagree with what I'm saying to you? A Yeah, they didn't sleep together." 1. The complainant was then challenged as to whether the incident occurred: [19] "Q His placing his hand on your hand in the way that you've described to this jury and causing your hand to come into contact with his penis, to grab his penis, did not happen? A That did happen. Q And you say it happened on one occasion in Queensland? A Yeah in Queensland. Q And for how long did it take or last? A Like 15 to 20 minutes." 1. The line of examination then turned to the request made in the lounge room whilst she and her grandparents were watching a movie. She confirmed that her brother and sister were not there; the questioning continued: [20] "Q According to your evidence, how far away from where you seated was your grandfather? A Well Nana Sue was on the other side of the couch, like they were like – I don't know how to explain it – like they were on like two different sides and Nana Sue was on one - - Q I'm sorry, how far apart? A I don't know like probably like a metre apart. Q Do you claim to be able to have heard your grandfather say - - A No he was sitting next to me. Q Yes, but you heard him say those words that you said he said to you? A Yes. Q And grandma was present, Nana Sue was present? A I think she was just watching TV. I don't think she really heard it. Q You've never suggested in your interview to the police that Nana Sue was watching TV and possibly didn't hear it, have you? A No because I didn't get asked. Q You were asked 'was nana present' by the police, correct? A Yeah, that was - - Q And you told them she was? A Yeah she was there, but she was watching TV. Q But you never suggested to the police in the JIRT interview, the interview that's been played to this jury, that nana was watching the TV and possibly didn't hear, did you? A No. Q And even if you're right, I'm not suggesting you are, at some point after that, you and your grandfather go to his room, she goes to her room, is that what happens? A No, she went to her room earlier. Q Is that what you said in your JIRT interview? A No. Q How much earlier did she go to her room? A I'm not sure. Q Because you can't remember or it simply didn't happen? A 'Cause I don't remember. … Q … Had the movie finished before your grandmother went to her bedroom? A No, it didn't finish I don't think. Q Not sure? A No, we were still watching the movie and she went to bed. Q Before or after the movie finished? A Like before the movie finished. Q How much before the movie finished? A I don't know. Q None of that's in your JIRT interview with police, is it? A No. Q Did nan say anything to you about you going to bed at that time? A No. … Q Your grandmother, I want to suggest to you, when you stopped over or slept over in Queensland, always insisted that you and your sister and your brother were in bed at the same time? A No." 1. The cross-examiner then turned to whether she had stayed in her grandfather's bedroom the whole of the night, which she denied, repeating her evidence that she went to her nan's bed. Finally, she was asked whether it was "your usual practice to sleep with your grandmother when you were staying over in Queensland" and she said, "no, not always". [21] She said that she had slept in her grandmother's bed "a couple of times". [22] She denied the suggestion that she had never slept in her grandmother's bedroom whilst sleeping over. 2. Two aspects of the cross-examination were supported by evidence given by Ms Golding, namely, first, that she always made sure on a sleepover that the children were in bed before she went to bed and, secondly, that the complainant never slept in her bed. However, Ms Golding described herself as the complainant's "best friend". [23] 3. If the jury were otherwise persuaded of the truth of the complainant's account of the Queensland incident in the JIRT interview, it is difficult to see any basis on which they would have taken a different view following the cross-examination: it was not suggested that there was any inconsistency in the various accounts she had given; there was no challenge based upon her reticence in her initial discussion with her parents; there was no suggested motive for lying about the events, nor basis suggested for confusion as to what had in fact taken place. To an extent, the additional evidence extracted in the cross-examination that was not in the JIRT interview, may well have been taken by the jury to confirm her evidence. 4. The cross-examiner dealt with the Sydney incident more briefly. The complainant agreed that when the family first came to Sydney they lived in Penrith and then later in Glenmore Park. She agreed that her nan and pop lived in Sydney before moving to Queensland and said that she thought it was "in Cranebrook somewhere", and when being asked if the name "Seaton Crescent" assisted her memory, she said that it did. (Seaton Crescent was the street in which the grandparents lived in Cranebrook.) She agreed that that was the house where she said the incident in Sydney took place. [24] The cross-examiner put to her that there had never been any sleepovers for her or her siblings at the Seaton Crescent premises, which she denied. The questioning continued: [25] "Q On occasion when you were living in Queensland with your family, you would come to Sydney and stay at the Seaton Crescent address, wouldn't you? A Wait, we'd like stay at their house? Q Yes? A Yeah, we used to go over a couple of times. Q I'm not suggesting go over, I'm suggesting coming from Queensland staying in the Seaton Crescent home, your family and your grandparents' family. Not just a sleepover, mum, dad, [your younger brother] you at pop's home? A No, we didn't stay there. Q Never? A We didn't - - Q As a family on holidays you stayed at your grandparents' house at Seaton Crescent as a family? A No." 1. Ms Golding gave evidence that during the period from January 2014 until January 2017 when the Cook family was living in Queensland, they would "on the odd occasion" travel to Sydney as a family and visit her and Mr Golding. [26] She was then asked, on those occasions when they came to Sydney, "would they stay with you and Mr Golding [at Seaton Crescent]" to which she replied "on the odd occasion they would". [27] 2. Ms Golding was asked in chief about the "bedroom arrangements" at Seaton Crescent and said that "there was three bedrooms". [28] However, she clarified that only two of the bedrooms "ran off the hallway" being the master bedroom and one other. [29] Her evidence continued: [30] "Q When you say, 'the one up the hallway', was that the bedroom where Mr Golding would sleep? A Yep. Q For the most part, you and your husband had your own bedrooms for sleeping? A Not all the time, no – like yeah we share a bed before I started CSSD. Q And that's the sterilisation role? A That's right. Q That you commenced in about 2013, 2014? A Yeah. Q But when you slept separately, the master bedroom was yours? A Yes. Q And he had the other bedroom that ran off the hallway? A That's correct." 1. Ms Golding's evidence about "stay overs" at Seaton Crescent was as follows: [31] "Q Did the three children of Stella and Shannon ever stay over at Seaton Crescent in the year 2017? A They did not. Q How can you say that with any certainty? A Because I was shift work and Stella had her mother to look after the kids, so I did not look after the kids at Seaton Crescent. Q Was there any reason that you recall not having the children at your premises on that occasion? A There were – my relationship with Stella was a bit strange, a bit strange. Q Was that throughout the course of its history or just in recent times, that is, around the 2017 year? A For the whole years that they were together. Q In 2017 when they returned to Sydney, what was the level of cordiality? Do you understand what I mean by that? Level of friendship and association between you and her? A Wasn't of friendly nature, no." 1. It is by no means clear that that evidence was supportive of the suggestion that the whole family of parents and three children stayed at Seaton Crescent on visits from Queensland "on the odd occasion", rather than supporting the complainant's denial of family visits. Further, Ms Golding gave evidence that the complainant did sleepover in 2017, not with her siblings but with another granddaughter. She said that they stayed for sleepovers in 2017, "not very, not very often". [32] 2. Ms Golding agreed she had read the brief of evidence, but denied she had tailored her evidence to assist her husband. [33] It was not suggested to her that she was self-interested in resisting any implication that she had failed to protect her granddaughter. 3. The defence called another of Ms Golding's grandchildren, Kaitlyn Mears, who was some 13 years older than the complainant. She recalled having sleepovers at Seaton Crescent as a young girl and until she was about 13 years of age. She agreed that the sleepovers occurred "multiple times a year" usually for "one to two nights" at a time. [34] This evidence, combined with the evidence that the complainant had sleepovers at Regency Downs, and Ms Golding's own evidence that she was the complainant's "best friend", must have raised some doubt as to her categorical denial that the complainant and her siblings had ever had a sleepover at Seaton Crescent during 2017. 4. Mr Golding did not give evidence. The prosecutor called no evidence in reply. Directions to jury – issues on appeal 1. There was no complaint at trial about the directions to jury, including the tendency direction. Nor was there any challenge on appeal, other than with respect to the issues raised by the single ground of appeal, as follows: "A miscarriage of justice occurred because: (a) the trial judge failed to direct the jury that any doubt they may form with respect to the complainant's evidence about the Queensland incident ought to be considered by them when assessing the credibility and reliability of the complainant's evidence about the NSW incident; and (b) the trial judge effectively told the jury that if they were not satisfied that the Queensland incident occurred then the evidence relating to it 'should be put completely to one side' when considering whether or not the NSW incident occurred." 1. The first limb of the ground was, in substance, a complaint of failure to give a direction of the kind envisaged in R v Markuleski; [35] the second was a complaint that, at least in part, the directions actually given by the trial judge contradicted the thrust of a Markuleski direction. 2. The principle established in Markuleski (not formulated in terms of a precise direction) concerned a risk inherent in the standard (and essential) direction, that the jury should consider each count in a multiple-count indictment separately, that the jury might disregard an adverse view of the credibility of the complainant on one count when separately assessing her evidence on other counts. At least in some circumstances, it may be important for the jury to be told that "where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally". [36] Thus, it was described as "desirable that the traditional direction as to treating each count separately is supplemented in a word against word case". [37] 3. Two points of distinction should be noted. First, this was not a case where an accused was facing multiple counts: there was only one count on the indictment and therefore no need or place for a direction as to separate treatment. Secondly, "word against word" was intended to refer to a case where the complainant gave evidence of the offending, which was denied by the accused. In this case, the accused did not give evidence. Rather, his wife gave evidence which was inconsistent with aspects of the complainant's accounts, although on no view was she present when the alleged offending took place. Nevertheless, the issue relating to consistency in assessing a complainant's credibility and reliability is not necessarily limited to such cases. [38] 4. A more general problem is that the reasoning in Markuleski did not address the question of admissible tendency evidence. At least in current practice, where there are multiple counts of similar offending on one indictment, the prosecution will seek to treat the evidence on each count as admissible in respect of others, a process known as cross-admissibility. Because evidence of other offending is not otherwise admissible, cross-admissibility will depend upon satisfaction of the principles of admissibility governing tendency evidence in ss 97 and 101 of the Evidence Act 1995 (NSW). 5. In The Queen v Dennis Bauer (a pseudonym), [39] the High Court addressed "directions ordinarily to be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it" in the following terms (edited to identify the separate propositions numerically): "86 … Where evidence is admitted on that basis, (1) the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. (2) If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. (3) The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. (4) The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused's guilt of that offence beyond reasonable doubt. (5) Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt." (References omitted) The last proposition (5) is now addressed in s 161A of the Criminal Procedure Act 1986 (NSW), following the Jury Directions Act 2015 (Vic), ss 61, 62 (note 1). 1. Tendency evidence is not to be viewed in isolation from other evidence but is to be weighed together with other evidence: its purpose and legitimate effect is to provide support to the credibility or reliability of the complainant in respect of each charged offence: proposition (1). As now stated in s 161A of the Criminal Procedure Act, the jury must not be directed that tendency evidence "needs to be proved beyond reasonable doubt", unless "there is a significant possibility that a jury will rely on an act or omission adduced as tendency evidence as "essential" in reaching a finding of guilt. These two principles reflect the metaphor that evidence may either form a strand in a rope, or a link in a chain: not all strands must bear the weight of proof beyond reasonable doubt, but each link must. Accordingly, it would be wrong in relation to most tendency evidence to direct the jury in a way which assumes they will consider whether they entertain a reasonable doubt as to each element of tendency evidence. 2. The appropriateness of a particular direction was further complicated in the present case because the evidence was admitted also as "relationship" or context evidence, requiring a direction in accordance with proposition (2). 3. Consistently with those principles, the judge gave a standard form of direction in relation to tendency evidence, including the following passage: [40] "So you will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so you do not consider each of the acts in isolation. You should consider all the evidence and decide what conduct you are satisfied occurred. If you decide all or at least some of the conduct occurred, you then need to consider whether it enables the inference to be drawn [that] the accused had the tendency to have a sexual interest in his step-granddaughter and to act on that interest by getting the complainant to put her hand on his penis while they were staying in the same house and the accused had taken her into his bed." 1. The direction with respect to tendency evidence was lengthy, but ended with a passage entirely derived from the standard form, and consistent with proposition (3) in Bauer, in the following terms: [41] "Now, some of the evidence before you that is relied upon by the Crown to prove the tendency alleged concerns an incident that is not the subject of any charge in the indictment, that is the Queensland incident. If you are not satisfied that an incident that is not the subject of a charge occurred, then the evidence relating to it should be put completely to one side. There is no other issue in the case to which it is relevant." 1. After a warning in relation to maintaining an objective stance in respect of distasteful evidence, the judge turned to summarise the prosecution case. In doing so, he repeated his direction as to the manner in which the Queensland incident was relied upon as tendency evidence and the fact that "the Crown notes tendency evidence cannot be a substitute for proof of the essential elements of count 1". [42] However, as the Queensland incident had also been relied upon as "relationship evidence" the judge had to deal with it in that context, stating: [43] "In respect of the context evidence, Madam Crown said the Queensland incident also provides you with a full history of the accused's conduct towards the complainant, so it gives some further background as well. And the fact that it occurred later in time, indeed, it may be an explanation for why she spoke about it first, and used it to anchor the Sydney incident, which was count 1. I repeat, in directing you that tendency evidence cannot be used other than in the way I have described, part of what I am saying to you is that you must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon in the Crown [sic] to prove a particular charge, the assault charge here." 1. The judge then indicated that he would address the elements of the charge and adjourned briefly prior to taking that course. In the absence of the jury he appears to have asked counsel if there were any issues so far, counsel for the accused saying, "Nothing from my part, your Honour". [44] The prosecutor raised an issue as to whether a more complete direction on "context evidence" should be given, in accordance with the standard direction at [4-215] of the Criminal Trial Courts Bench Book. The judge noted that he had already directed the jury in the terms set out above at [46] (to which objection is now taken) which were reflected in the proposed further direction. He suggested that other aspects of the standard "context" direction were inappropriate, as clearly they were. For example, the standard direction contains the following passage: [45] "However, I must give you some important warnings with regard to the use of this evidence of other acts. Firstly, you must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged." 1. Self-evidently, where the prosecutor had relied upon the evidence (without objection) both as tendency and context evidence, such a direction would have been quite inappropriate. But the opportunity for the defence to object to the direction that had been given was not taken. Consideration Ground 1 – Markuleski direction 1. The requirement for leave under r 4.15 raises a significant obstacle in relation to the first limb of the ground. However, because the cases support the view that a significant, if not dispositive, consideration will be the possibility that the applicant has lost a real chance of acquittal, it is necessary to address the merits of the ground. [46] That is the test applied where a miscarriage has been established: for the reasons set out below, that test is not satisfied in the present case. However, it should not be assumed that leave should be granted in all cases where new counsel satisfies an appeal court that the case could have been better run at trial; the trial is not to be treated as a practice run. Generally, a legally represented accused will be bound by the conduct of the trial. [47] That is the starting point for consideration of the fairness of the trial. [48] It may also be necessary to consider the effects of delay and the interests of the complainant and other witnesses who may be subjected to the stresses of a second trial because of a point not raised at the first trial. 2. At the same time, the Court should be alert to the difficulty of assessing the merit in circumstances where the issue was not raised in the course of the trial and the Court can only speculate as to the precise formulation of a direction, had that discussion occurred. [49] For example, it was submitted on behalf of the applicant, that the Court should give limited weight to the way in which counsel for the accused addressed the jury, in circumstances where at least the thrust of the proposed directions to be given by the judge had already been settled. On the other hand, the fact that counsel had not suggested a different approach in the course of discussions as to the proposed directions, nor in the discussion which followed the direction now sought to be impugned, casts doubt on the submission that he might have addressed differently had different directions been proposed. 3. Nor did counsel for the applicant seek to engage with a proper formulation of the proposed direction. Some adjustment of the common form of direction in response to Markuleski will be necessary where, first, there is only one count on the indictment and, secondly, the other conduct is relied upon as demonstrating tendency and context. Thus, to direct a jury with respect to a circumstance "where they entertain a reasonable doubt" in relation to evidence which is relied upon as tendency evidence is to imply, wrongly, that the evidence should be rejected in such a case. All that could properly be said would be that if the jury were not satisfied as to the tendency relied upon, having regard to the totality of the complainant's evidence, they would disregard the tendency evidence and focus entirely upon the evidence concerning the Sydney incident. Such a direction necessarily departs from the principle addressed in Markuleski. Ground 2 – the disregard direction 1. The possible direction outlined in the last paragraph might have been appropriate, but the question is then whether it differed in substance from the directions in fact given. That was the subject of the second limb of the ground, to which it is appropriate to turn. 2. Although not set out in full, the judge's directions as to how the jury should deal with evidence as to the Queensland incident, both as demonstrating tendency, and as indicating a context within which the complaint in relation to the Sydney incident could be assessed, were extensive. It is true that the judge said to the jury that if they were not satisfied that "an incident that is not the subject of a charge occurred, then the evidence relating to it should be completely put to one side", but the preceding sentence had (correctly) identified that evidence as being "relied upon by the Crown to prove the tendency alleged", and was not the subject of any charge. Thus, the jury was directed that if they were satisfied as to the evidence of the Queensland incident, that was only relevant to establish a tendency on the part of the accused. They were told that the tendency was not sufficient in itself to demonstrate beyond reasonable doubt that the charged events occurred. However, if they were not satisfied as to the tendency, the evidence relating to the Queensland incident was to be set aside. 3. In dealing with tendency evidence, care must be taken not to suggest that the jury is required to adopt a staged approach in circumstances where that is unrealistic. The most important warnings should be directed to ensuring, as was necessary in the present case, that a conclusion that the Queensland incident did occur was not sufficient to convict the accused; it was still necessary to be satisfied beyond reasonable doubt that the Sydney incident occurred. The risk was that satisfaction as to the identified tendency would lead the jury to jump immediately to the conclusion that the Sydney incident occurred, or because they might decide that, whether or not the Sydney incident occurred, the accused should be punished. It was also necessary to warn them that just because there was complaint of two incidents, they should not be satisfied beyond reasonable doubt that the charged incident occurred without a process of self-reflection as to how they had addressed the evidence of the Queensland incident. In that context it is, of course, necessary to ensure that the directions are unequivocal as to the need for the jury to convict only if satisfied beyond reasonable doubt that the Sydney incident occurred. 4. The second limb of the ground is, like the first, based on the false assumption that the jury was required to be satisfied beyond reasonable doubt that the Queensland incident occurred before they could take the evidence of that incident into account. Reliance on the incident as tendency and context evidence rendered that assumption false. Further, reading the directions in relation to the Queensland incident and how the evidence of it could be used, each of the necessary elements identified above was adequately covered. The passage impugned by the second limb was in accord with the standard directions as to the limited use to be made of tendency and context evidence, and thus with Bauer proposition (3). Accordingly, the applicant has not established that by some error he has lost a real chance of acquittal. 5. In these circumstances, neither limb of the ground supports the conclusion that some other direction should have been given, absent which the applicant was deprived of a real chance of acquittal. Leave should be refused with respect to each. Orders 1. The Court should make the following order: Pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, refuse the applicant leave to appeal on the ground contained in the proposed notice of appeal. 1. N ADAMS J: I agree with the orders proposed by Basten AJA for the reasons provided by his Honour. As for ground 1, the decision in Markuleski [50] had no application in this case for the reasons provided by his Honour. As for ground 2, I wish to make the following additional observations. 2. First, what is required before a "third limb" miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) will be established was explained by Simpson AJA in Day v Rex (No 2) [2023] NSWCCA 312 at [75] as follows: "… where there is any departure from the entitlement of an accused person to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed, as a result of which the accused person has been deprived of chance that was fairly open to him (or her) of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 (Fullagar J) …; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] ..." 1. Similarly, Beech-Jones CJ at CL had earlier described third limb miscarriage in this way in Zhou v R [2021] NSWCCA 278 at [22]: "To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J) or 'realistically [could] have affected the verdict of guilt' (at [123] per Gageler J) or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial' (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Stewart JJ)." 1. I am not satisfied that there was any departure from the applicant's entitlement to have the relevant law correctly explained to the jury at his trial for the reasons explained by Basten AJA. The jury was directed that they were not obliged to accept the whole of the evidence of any witness and the fact that they did not accept a portion of a witness' evidence did not mean that they must necessarily reject the whole of their evidence. They were also given a Murray direction [51] including that they needed to be satisfied beyond reasonable doubt that the complainant was an honest and reliable witness, that they must consider the entirety of her evidence in light of the other evidence presented by the Crown, and to "assess any inconsistences where inconsistencies may raise a doubt as to the reliability of the Crown case…". They were again directed that they must be satisfied beyond reasonable doubt that the complainant had told the truth in the context of the absence of any apparent motive to lie. In the context of the s 293A direction [52] (which I have referred to in more detail below), the jury was directed that it was entirely a matter for them, as judges of the facts, to decide whether or not any differences in the complainant's account were important in assessing her truthfulness and reliability. 2. Given that I am not satisfied that the impugned passage was in fact a misdirection, there is no need to consider whether there was a real chance that it affected the jury's verdict. 3. Secondly, the applicant's reliance on the decisions in Sita v R [53] and RWC v R [54] did not assist him. In Sita v R, the jury returned mixed verdicts. It was apparent that the jury acquitted on all counts save for one of the two counts of which both complainants gave evidence. The Markuleski direction prevented the jury from using any doubts it held about the complainant KK's evidence on the counts concerning her in assessing that part of her evidence which supported the evidence of the other complainant, JU, on the counts concerning her. That is far removed from the present appeal. Similarly, the error in RWC v R was a failure to give a Markuleski direction in relation to an indictment containing four counts in which there were two acquittals and two convictions. 4. Thirdly, the applicant accepted that it was appropriate that the trial judge gave a s 293A(2) direction in these terms: "… I am obliged to tell you that experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people different and may affect how they recall events, that sometimes there are differences in an account of a sexual offence and both truthful and untruthful accounts of an event, including a sexual offence, may contain differences. It is your job, and entirely a matter for you, members of the jury, as judges of the facts, to decide whether or not any differences in a complainant's account are important in assessing her truthfulness and reliability." 1. Given the necessity of the s 293A(2) direction, any additional direction as now contended for by the applicant would have increased the complexity of the jury's task, especially having regard to the other directions given about their assessment of the complainant's credibility: see Astill v R. [55] 2. Finally, the fact that there was no complaint at trial about the impugned direction further supports a conclusion that there was no miscarriage of justice. As Bell CJ (with whom Stern JA and Button J agreed) observed in Astill v R: "[62] …. the absence of any objection to the form or terms of the trial judge's summing up to the jury tended against any conclusion that there was a 'real chance' that the failure to give the direction now sought as part of the tendency directions given 'affected the jury's verdict' or deprived the Applicant of a real chance of acquittal on those counts upon which he was convicted …. In Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54], Kiefel CJ, Keane and Steward JJ observed that: 'Within our system of justice, save for exceptional cases, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue". While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v The Queen: "[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice", their Honours went on to say: "The absence of an application for a direction may ... tend against finding that that risk was present." See also De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35]; CV v The King [2022] NSWCCA 264 at [49]; Greenhalgh at [42]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]. [63] Certainly, the failure to raise an objection by defence counsel is a 'cogent consideration' in the context of assessing whether a miscarriage of justice has been established: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37] (Dookheea). Thus, to Beech-Jones CJ at CL's observation in Cox v R [2022] NSWCCA 66 at [48] that 'the matters raised by counsel for an accused at the trial … are often a sure guide to the true potential prejudice that the relevant event might have caused' may also be added 'and the matters not raised', at least where no question of competency of trial counsel is relied on: see Dookheea at [37]. No submission was made going to the competency of trial counsel in the present case." 1. HUGGETT J: I agree with the reasons and orders proposed by Basten AJA. I also agree with the additional observations of N Adams J. ********* Endnotes 1. Ex C, MFI 8, Q52. 2. Ex C, MFI 11, p 6; the parties to the conversation have been inserted here. 3. The transcript referred in numerous places to "Nanny Sue"; a list of errata (which appear to have been agreed) corrected that generically to "Nana Sue". 4. Tcpt, 28/09/23, p 56(17). 5. Although there were Errata to the transcript recorded, there was no change to the last "not transcribable" entry. 6. Interview, Q141-144. 7. Interview, Q160-161. 8. Interview, Q148-149. 9. Interview, Q163-166. 10. Interview, Q191-196. 11. Interview, Q201-212. 12. Interview, Q216. 13. Interview, Q220. 14. Tcpt, 27/09/23, p 5(40)-(50). 15. Tcpt, 28/09/23, p 29(40). 16. Tcpt, p 30(15)-(25). 17. Tcpt, p 32(10)-(26). 18. Tcpt, p 32(40). 19. Tcpt, p 33(7). 20. Tcpt, p 33(30). 21. Tcpt, p 36(48). 22. Tcpt, p 37(10). 23. Tcpt, 03/10/23, p 222(2). 24. Tcpt, p 38(50). 25. Tcpt, p 39(6). 26. Tcpt, 03/10/23, p 204(50). 27. Tcpt, p 205(10)-(18). 28. Tcpt, p 207(15). 29. Tcpt, p 220(32)-(48). 30. Tcpt, p 220(50)-221(18). 31. Tcpt, p 208(23). 32. Tcpt, p 208(44)-209(6). 33. Tcpt, p 227(44)-228(7). 34. Tcpt, p 237(1)-(30), 238(5), (25)-(38). 35. (2001) 52 NSWLR 82; [2001] NSWCCA 290. 36. Markuleski at [188]. 37. Markuleski at [186]. 38. Regina v GAR [2003] NSWCCA 224 at [34] (Miles AJ; Spigelman CJ and Bell J agreeing). 39. (2018) 266 CLR 56; [2018] HCA 40. 40. Summing up, 04/10/23, p 20. 41. Summing up, p 22. 42. Summing up, p 23. 43. Ibid. 44. Summing up, p 24. 45. Criminal Trial Courts Bench Book, p 633. 46. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24] (Bathurst CJ; Leeming JA, RA Hulme, Hamill, and N Adams JJ agreeing) (albeit quoting Greenhalgh v R [2017] NSWCCA 94 as stating that the exercise of the discretion cannot be "proscribed", rather than that "it is not possible to be prescriptive", which arguably left a wider scope for the exercise of the discretion not to grant leave. 47. Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [9] (Gleeson CJ). 48. R v Birks ((1990) 19 NSWLR 677, pp 683G, 684E-G, 685E, 688B (Gleeson CJ). 49. Roos v R [2019] NSWCCA 67 at [99]-[101] (Gleeson JA, Harrison and Davies JJ agreeing). 50. Regina v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. 51. R v Murray (1987) 11 NSWLR 12. 52. Criminal Procedure Act 1986 (NSW) s 293A(2). 53. [2022] NSWCCA 90. 54. [2013] NSWCCA 58. 55. [2024] NSWCCA 118. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2024