Reported Decision : [2000] 117 A Crim R 176 New South Wales Court of Criminal Appeal CITATION : R v A.N. [2000] NSWCCA 372 FILE NUMBER(S) : CCA 60230/99 HEARING DATE(S) : 14/09/2000 JUDGMENT DATE : 9 November 2000 PARTIES : Regina A.N. JUDGMENT OF : Priestley JA at 1; Greg James J at 2; Kirby J at 9 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/61/0127: 97/61/0152 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : W G Dawe QC (Crown) P R Boulten (Appl) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appl) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Relationship evidence - Limits on such evidence - Requirement for notice of tendency evidence Crimes Act, 1900 - s73; s76 LEGISLATION CITED : Evidence Act, 1995 - s97(1); s98; s99; s101(1) & (2); s135; s137; s190(2) NSW Evidence Regulations R v Wilson (1970-71) 123 CLR 334 R v Bond (1906) 2 KB 389 Harriman v The Queen (1989) 167 CLR 590 R v Beserick (1993) 30 NSWLR 510 CASES CITED: Gipp v The Queen (1998) 194 CLR 106 R v Bradley (1989) 41 A Crim R 297 R v MM [2000] NSWCCA 78 R v Lockyear (1989) 89 A Crim R 457 R v Fordham 90 A Crim R 359 DECISION : Appeals allowed IN THE COURT OF CRIMINAL APPEAL 60230/99 PRIESTLEY JA GREG JAMES J KIRBY J Thursday 9 November 2000 REGINA v A.N. JUDGMENT 1 PRIESTLEY JA: I agree that the orders proposed by Kirby J should be made, for the reasons he gives, subject to the same reservation as that stated by Greg James J, which does not bear upon the proposed orders. 2 GREG JAMES, J: Except in respect of one matter, I agree with the judgment of Kirby, J., which I have read in draft. 3 I am content the appeal be disposed of on the basis that, for the reasons his Honour gives, the tendency evidence was not properly admitted and the jury were not properly directed as to what evidence was available for what purpose on each count. In addition, I agree with his Honour's observations concerning the mis-statement of the evidence and the submission there was no evidence on count one. 4 The exception to which I have referred involves the question of the reception into evidence of the material of sexual activity extraneous to each particular charge as relationship evidence. 5 Whilst I consider his Honour's discussion of the questions involved most valuable, I find difficulty in accepting that in this case, if this material were to be admitted as relationship evidence and the jury to be directed to use it only as evidence of relationship in accordance with the direction required by application of the principles in Regina v. MM [2000] NSWCCA 78, they would be able in reality to act in accordance with that direction. 6 These considerations might merit reconsideration of the concepts of "relationship", "context", "guilty passion" and such like in the light of the provisions of the Evidence Act 1995 as they might apply to cases similar to this one but such considerations should await a suitable case. 7 In my view, it is not necessary to decide this appeal that the evidence be analysed to consider its possible use as relationship evidence. The appeal should be upheld on the limited basis I have indicated. 8 It is for those reasons I joined in the orders made. 9 KIRBY J: The appellant, AN, was charged with a number of sexual offences. They arose out of allegations made by his stepdaughter, and her daughter, that is, his step granddaughter. 10 The charges concerning the stepdaughter were heard in Dubbo before Gibson DCJ and a jury. On 17 December 1998, AN was convicted. He was remanded in custody. 11 The trial concerning AN's step granddaughter later proceeded before Gibson DCJ and another jury. AN was again convicted. On one count of carnal knowledge, involving his stepdaughter, the appellant was sentenced to nine years penal servitude, with a minimum term of seven years. Fixed terms, each of two years, were imposed in respect of the remaining counts. 12 An appeal was lodged against each conviction. Leave was sought to appeal against sentence. When the matter was argued on 14 September 2000, it was apparent that the appeals had to succeed. At the conclusion of argument, the appeals were allowed. The convictions in each case were quashed, and a new trial ordered. No judgment was given at that time. I now provide my reasons for joining in that order. The First Trial. 13 AN was charged with three offences. They may be summarised as follows: · First Count: That between January 1950 and December 1953, he indecently assaulted his stepdaughter, she then being less than 16 years (namely, approximately 9 years) (s76 Crimes Act, 1900). · Second Count: That between January 1955 and April 1956, AN did unlawfully carnally know his stepdaughter, she being above the age of 10 years and under the age of 17 years (s73 Crimes Act, 1900). · Third Count: The third count was in the same terms as the second count (s73 Crimes Act, 1900). 14 AN's stepdaughter was born in 1941. She had two brothers. AN was employed on a property as a station hand. The family was housed in the shearers' quarters, some distance from the homestead. 15 The appellant's stepdaughter gave evidence that, from time to time, the owners of the property went away. Her stepfather had access to the homestead. The incident said to give rise to the first count occurred at the homestead whilst the owners were away. There was a grapevine next to the house. AN and his stepchildren used to pick grapes and eat them. The stepdaughter described an occasion where the appellant inserted a grape in her vagina. He then retrieved it with his teeth. He did this a number of times, perhaps six times in all. The complainant's brother witnessed these events. He gave evidence broadly along the same lines. He, like his sister, was told to keep the episode secret from their mother. 16 The family later moved to another property. By the time of the move, the stepdaughter was about thirteen years old. They lived in a homestead, where the stepdaughter had her own room. She gave evidence that AN came to her room. He lay on the bed. Ultimately, intercourse took place. She was able to fix the time by reference to the death of a relative. A death certificate of that relative was tendered identifying the date as 23 October 1954. 17 The complainant described a further occasion when the appellant came to her bedroom. She had lost her school hat. Her mother had no money for a replacement. She said AN offered 7/6d, the cost of the hat. Once more he lay on top of her. Intercourse again took place. Grounds of Appeal 18 In respect of the first trial, there were ten grounds of appeal. The Court, having ordered a new trial, I need only deal with those grounds which gave rise to that order, and such other matters as may be of assistance in a new trial. 19 The grounds which require consideration may be grouped as follows: · First, the admission of evidence of conduct by the accused on occasions other than those charged. · Secondly, an alleged misdirection in respect of tendency evidence. The Admission of Evidence 20 After the jury had been empanelled, and before the Crown opened, a discussion took place in the absence of the jury. Counsel for the Crown sought a ruling on evidence. The evidence related to the conduct of AN towards his stepdaughter on occasions other than those charged. Counsel for AN objected to that evidence. The following exchange took place between the Crown and the trial Judge: (T.8) "CROWN PROSECUTOR: Your Honour, I'd seek to lead the evidence on two bases - firstly to show a tendency on behalf of the accused to act in the way that the complainant alleges that he acted on the three occasions isolated within the indictment, and secondly, your Honour, I'd seek to lead the evidence to establish … or to show the jury firstly the context in which those things occurred and the nature of the relationship that existed. HIS HONOUR: The relationship evidence, yes, that's admissible, but you're asking it to go further, you're asking it to be admitted under s97? CROWN PROSECUTOR: Yes, your Honour. HIS HONOUR: Have you given notice? CROWN PROSECUTOR: Notice was given, your Honour, yes. …" 21 The Notice was not produced during the course of this exchange. Counsel then appearing for AN made no reference to its terms, nor complaint that it was inadequate. I will come back to the Notice shortly. 22 The Crown then gave the trial Judge a broad description of the nature of the evidence which it proposed to call. His Honour repeated his preliminary view that the evidence was admissible to describe the relationship between AN and his stepdaughter. 23 Counsel for AN sought its exclusion, under s135 and s137 of the Evidence Act, 1995. After a brief discussion, his Honour ruled that he would admit the evidence upon both bases identified by the Crown. 24 Before evidence can be admitted as tendency evidence, the requirements of s97(1) and s101(2) must be satisfied. Those sections are in these terms: "S97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." … S101(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 25 His Honour did not advert to either section, nor the requirements of each section, apart from notice. Evidence Led by the Crown 26 The Crown led evidence concerning a number of specific incidents involving the complainant and her stepfather. There was an occasion which occurred at the first property. She and her brother made icing for a cake. AN was apparently in bed, naked. He pretended to be asleep. They painted his penis with the cake icing. He then pretended to wake up, and be angry. According to the complainant, he then placed icing in her vagina, and licked it off. 27 There was no attempt to fix the time of this episode, and its relationship to each of the incidents, which gave rise to the charges. 28 The complainant also gave evidence of visiting the homestead with AN, and her brother, when the owners were away. She said this: (T.39) "Q. … did you go into the bathroom on some occasions? A. Yes, we used to go in there and have a bath in the bath and we'd all be in there and we'd all have no clothes on." 29 Elsewhere she said: (T.40) "We just all used to be in the bath and we'd touch each other." 30 When cross examined, it emerged that only she and her brother were in the bath. However, the "touching" concerned her brother, her stepfather and herself (T.23). There was no elaboration. The nature of the touching was not described. 31 Similar non-specific evidence was given about games played by AN with his stepchildren. Indeed, the matter was pursued at the suggestion of his Honour, he believing that it required clarification. The transcript included the following passage: (T.23) "CROWN PROSECUTOR: Q. … I just want to ask you a couple of further questions, you mentioned during the course of your evidence that yourself and your brother … and the Accused would from time to time play games? A. Yes. Q. You remember saying that? A. Yes. Q. And you said that often when you played these games you would have no clothes on? A. Yes. Q. Are you able to tell me firstly what were these games that you played? A. We used to just touch each other and I can't remember exactly what we used to do, we used to - it was just something we did sort of all the time." 32 His Honour then asked the following question, which was the subject of complaint in one of the grounds of appeal: (T.24/25) "Q. How old were you when you first started playing these games with your brother and your stepfather? A. I can't remember how old we were but when we lived in Guildford I remember we had secrets from my mum then but what happened -- Q. How old were you when you lived at Guildford? A. About five or six and I remember then that we had secrets from mum." 33 The Crown charged two acts of intercourse (counts 2 and 3). The appellant complained that evidence which suggested, or hinted, that there may have been other episodes, was admitted. The complainant, for instance, said this: (T.34) "Q. You've told us that this occurred on two occasions. Do you have a recollection of whether or not it occurred on any other occasion? A. I don't remember specifically but I remember after a while that I learned if I'd pretend to be asleep he wouldn't knock too hard on the door because he'd wake my mum up so I'd just pretend to be asleep." 34 The stepdaughter also gave evidence, which suggested an ongoing relationship with her stepfather. It was in these terms: (T.35) "Q. … do you recall at what age or approximately what age you were when you commenced to have your periods? A. I was about thirteen. I got them when I was at Mount Nanima." 35 It is necessary to consider the admissibility of this material on each of the bases accepted by his Honour, namely, as relationship evidence, and as tendency evidence (that is, evidence of "guilty passion"). Relationship Evidence 36 Evidence is admissible to prove the relationship between the complainant and the accused, where an understanding of that relationship is important to the determination of guilt. Such evidence serves two purposes. The first is to explain what happened, and why it happened. The second is to furnish the context within which the allegations against the accused may be examined. 37 Let me deal with each of these purposes in somewhat more detail. The first justification for the reception of relationship evidence is that it furnishes an explanation for the conduct of the accused. In R v Wilson (1970-71) 123 CLR 334, Barwick CJ endorsed the following passage in R v Bond (1906) 2 KB 389, taken from the judgment of Kennedy J: (at 338) "The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial." 38 In Harriman v The Queen (1989) 167 CLR 590, McHugh J explained the purpose of such evidence in these words: (at 630) "Evidence relating to the accused and the alleged victim ('the relationship cases'), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In 'the relationship cases', evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties." 39 The touchstone is logic. Barwick CJ in Wilson (supra) said this: (at 339) "It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn." 40 In the context of sexual offences, McHugh J made the following comment in Harriman v The Queen (supra): (at 631) "Likewise in sexual cases, evidence of previous acts of misconduct by the accused in relation to the complainant will usually be admissible because it tends to prove why or how on the occasion in question the offence occurred in the circumstances alleged. In Reg v Etherington ((1982) 32 SASR 230), evidence of previous acts of sexual intercourse and indecent assault by the accused on the complainant was rightly admitted because it served 'to explain why she continued to submit to him and why he was able to commit his indecent acts upon her on the occasion charged' ( Reg v Etherington (supra) at 235)." 41 The second purpose is to put the events in context. In R v Beserick (1993) 30 NSWLR 510, Hunt CJ at CL (with whom Finlay and Levine JJ agreed), said this: (at 515) "… the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. R v Wickham (CCA,17 December 1991, unreported) provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant." 42 McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106, dealt with that purpose in these words: (at 130/131) "Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described ( R v Etherington (1982) 32 SASR 230)." 43 They added: (at 131) "Knowing that this was not the first time that the complainant and the appellant had engaged in sexual activity helps to explain the complainant's apparent lack of surprise at being called into the bathroom to gratify the appellant's sexual desires and her matter of fact recounting of the incident. The regularity with which incidents such as this occurred also helps to explain her failure to mention the incident to her mother and the appellant's confidence …" Limits Upon the Admissibility of Relationship Evidence 44 Are there limits to the admissibility of such evidence? A number of limitations have been rejected. Barwick CJ, in Wilson (supra, at 339), rejected the suggestion that evidence of relationship is limited to evidence which establishes motive. Nor, in the context of sexual offences, can the prosecution be confined to offences of the same type. Hunt CJ at CL in Beserick (supra) said this: (at 527) "As Stable J said in R v Witham ((1989) Qld R 49, at 77), such a restriction would be 'quite unreal'. Different types of sexual activity are, as that judge said, 'all part of the same passion, the same sex urge'. When the other sexual activity has preceded that which is the subject of the charge, evidence of it will often be important in many cases to show how the nature of the accused's guilty passion grew from minor transgressions, which the victim was initially reluctant to accept, to grave infringements of the law which, though not welcomed by the victim, were ultimately accepted without further express protest." 45 Is proximity a requirement? Is it valid to enquire whether the events, which the Crown seeks to introduce, are too remote from the events which are the subject of the charge? A distinction needs to be made between events before and after the incident charged. It is hard to see how events after the offence can provide a context, although it is possible (if they are sufficiently proximate) that they may (cf Hunt CJ at CL in Beserick (supra) at 525). The relationship after the offence may, nonetheless, with the aid of the presumption of continuance, and if reasonably close in point of time, provide an explanation for certain conduct (cf R v Fordham 90 A Crim R 359, per Howie AJ). 46 Dealing with events before the offence, time, as such, appears not to be a limitation upon the reception of relationship evidence. The test is logic, and the capacity of the event to explain the conduct charged. Thus, McHugh J in Harriman v The Queen (supra) said this: (at 630) "In Reg v Garner ((1963) 81 WN (Pt1) (NSW) 120) on a charge of assault occasioning actual bodily harm, evidence of 'a long course of cruelty and continued ill-treatment' (p 122) by the accused to the complainant was rightly admitted because it showed the 'atmosphere of hostility' (p 129) which existed and made more probable than not that the assault in question had occurred." 47 However, the remoteness of conduct from the offence charged is important to the exercise of discretions under s135, s136 and s137 of the Evidence Act, 1995. Hunt CJ at CL in Beserick (supra), said this: (at 521/522) "As the authorities which I have cited show, remoteness of the other sexual activity from the time of the offence charged goes to the weight of that evidence. The more remote the other sexual activity is, the less will be its weight; and, in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity." 48 Further, some form of balance needs to be maintained between evidence relevant to the offence charged, and evidence introduced either as relationship evidence, or evidence of guilty passion (cf Hunt CJ at CL in Beserick (supra) at 522). In R v Bradley (1989) 41 A Crim R 297, Shepherdson J said this: (at 302) "It is in my view not necessary that in every case the whole history of sexual activity between an accused person and the complainant be admitted in evidence. In some cases a trial judge may have to take care to limit that history to what is sufficient to enable the jury to set in its proper perspective and to understand the acts alleged to constitute a particular offence. In other words, in some cases the 'full story' … may have to be limited … In a case such as the present where there are quite a large number of instances of carnal knowledge alleged against the appellant prior to the first of the acts of alleged indecent dealing the prejudice to an accused person may be so great that the sheer number and weight of those instances may well overbear the jury in its consideration of the evidence in each of the three charges and prevent the jury from considering that evidence impartially." 49 Finally, the generality of evidence concerning relationship, on one view, may render it inadmissible. In Gipp v The Queen (supra) Gaudron J said this: (at 112/113) "General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as 'similar fact' or 'propensity' evidence. And in this case, there was no feature of the kind present in R v Ball ([1911] AC 47) that made it directly relevant to the question whether the appellant was guilty of the offences charged. Thus, unless there was some subsidiary issue in the trial to which it was relevant, the evidence of general sexual abuse was not admissible." 50 Callinan J was of a similar view (at 168/169). However, McHugh and Hayne JJ saw such evidence as unexceptional, often reflecting choices made by the advocate appearing for the accused. They said this: (at 132) "The evidence tendered was general in its nature and, as the above passage, makes clear, was admitted for the limited purpose of making the circumstances of the specific offences more intelligible. It was admissible because it was evidence 'as to acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances ' ( R v Bond [1906] 2 KB 389 at 400; see Wilson v The Queen (1970) 123 CLR 334 at 338, 343). Counsel might have objected to the generality of the evidence and insisted that the complainant should recite in detail, so far as she could, the times, places and manner of these sexual interferences. But he preferred - what seems to us to have been the better forensic choice - that the evidence of the sexual history should be given shortly and without prejudicial detail." 51 Kirby J, on this aspect, did not express a concluded view (cf 73 ALJ 432 at 440-441). Powell JA, in R v MM [2000] NSWCCA 78, provided the following comment upon this decision: (at para 46) "Although in the course of their separate Judgments in Gipp v R (1998) 194 CLR 106 Gaudron J at 111-113 and Callinan J at 168-169 expressed the view that general evidence of sexual abuse on occasions other than those charged is, in the absence of conduct on the part of the defence which raises an issue to which prior abuse is relevant, not admissible unless it has a special probative value which renders it admissible as propensity evidence, that view does not appear yet to command a majority in the High Court." 52 Here, the only evidence which seems to me arguably inadmissible, is the evidence relating to touching in the bath, and games. The evidence is not simply general. It is ambiguous, and arguably, not sexual. The remaining evidence, including that which may suggest more frequent intercourse, appears to me to be admissible. It tends to prove how or why the conduct, which is the subject of the charges, arose. It makes it more probable that such conduct occurred (cf McHugh J in Harriman (supra) at 630). The Tendency Evidence 53 The same evidence was admitted at tendency evidence. Was it properly admitted? The Crown was obliged to pass through three gates before such evidence was admissible (quite apart from discretions which arise under s135 and s137 of the Evidence Act, 1995). · First, the Crown was obliged to give reasonable notice in writing of its intention to adduce tendency evidence (s97(1)(a)). The Court has the power, upon application, to dispense with notice (s100(1)). · Secondly, the Court must determine that the evidence, either by itself, or in combination with other evidence, has significant probative value (s97(1)(b)) (cf R v Lockyear (1989) 89 A Crim R 457). · Thirdly, in a criminal trial, the evidence cannot be used unless its probative value substantially outweighs any prejudicial effect it may have upon the defendant (s101(2)). 54 Here, the particular basis upon which the evidence was put forward was that it suggested that AN had a guilty passion for his stepdaughter, that is, an attraction or sexual desire for her. The relevance of such a passion was explained by Hunt CJ at CL in Beserick (supra) in these words: (at 515) "The 'guilty passion' of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J); Harriman v The Queen (1989) 167 CLR 590 at 631 (McHugh J); B v The Queen (at 602, 09, 610-611, 618)." 55 However, careful directions were required before episodes in the sexual history between the complainant and the accused may be used when determining guilt. McHugh J, in Gipp v The Queen (supra) said this: (at 132) "If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of a 'guilty passion' in support of the charges in the indictment ( R v Ball [1911] AC 47 at 71; O'Leary v The King (1946) 73 CLR 566 at 575, 577, 582; R v Hissey (1973) 6 SASR 280 at 288-289). In that event, it would have been necessary to direct the jury that these incidents as well as the charges had to be proved beyond reasonable doubt." 56 Here, there was no evidence of any relationship, much less a guilty passion, which predated count 1 (the episode relating to the grapes). That needed to be said to the jury. 57 Further, much of the general (and especially the vague) evidence concerning the relationship between AN and his stepdaughter (the touching and the games) was, in my view, incapable of satisfying the requirements of s97(1) and s101(2). 58 It emerged, moreover, in the course of argument on the appeal, that the Notice which the Crown had given to the accused was defective. The obligation upon the Crown was in these terms: "S99 Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section." 59 Regulation 6 of the New South Wales Evidence Regulations, relevantly, is in these terms: "6(2) A notice given under section 97(1) of the Act (relating to the tendency rule) must state: (a) the substance of the evidence of the kind referred to in that subsection that the party giving notice intends to adduce; and (b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of: (i) the date, time, place and circumstances at or in which the conduct occurred; and (ii) the names and addresses of each person who saw, heard or otherwise perceived the conduct, so far as they are known to the notifying party." 60 The Notice given by the Crown said this: "Notice is hereby given that the Crown will, subject to such order or orders that the Court may make, adduce tendency evidence at the trials of these matters as to the character, conduct and tendency of the accused. In the case in respect of each complainant the Crown will lead evidence of the charges in respect of each of the other complainants. In the case in respect of each complainant the Crown will lead evidence of all sexual activity engaged in by the accused with that complainant. The substance of that evidence and the particulars of the date, time, place and circumstances at or in which the conduct occurred has been disclosed in the brief of evidence and the evidence at committal, as have the names and addresses of each person who saw, heard or otherwise perceived the conduct so far as they are known to the Crown." 61 Plainly such a notice does not comply with the requirements of the Regulations. The Crown did not suggest otherwise. The Notice should have identified, in terms, the evidence to be called, and provided the other information required by the Regulations. 62 No complaint was made by the appellant concerning the Notice. However, that cannot be taken as a waiver. In criminal proceedings, in order for there to be a waiver of, inter alia, the provisions of Pt 3.6 of the Evidence Act (which includes the requirement for notice), a number of conditions must be satisfied. First, the accused must be apprised of his or her rights, and advised to waive those rights by his or her lawyer (s190(2)(a)). Secondly, the Court must be satisfied that the accused understands the consequences of giving consent (s190(2)(b)). The issue was simply not addressed. It is plain that nobody turned their minds to the question of waiver. Nor did the Crown make application to dispense with notice under s100. One is left, therefore, with a failure to provide notice, as required by s97(1)(a) of the Evidence Act. Objection was taken to the evidence by counsel for the appellant. Accordingly, the evidence was not properly admitted. Direction on Tendency Evidence 63 In the course of the summing up, his Honour dealt with the evidence concerning the appellant's conduct towards his stepdaughter on occasions other than those charged. He introduced his directions with these words: (S/U 11) "You may consider such evidence but only for the limited purposes that I now outline, and they are two in number." 64 His Honour then described the various episodes set out above (the icing incident, the games, the touching). He then referred to the first purpose, which was to put the charges in a realistic context; to make them intelligible. 65 His Honour thereafter dealt with the second purpose, which was concerned with the suggestion that AN harboured a "guilty passion" for his stepdaughter. His Honour said this: (S/U 13) "Similarly, the Crown suggests that the actions of the accused showed that he had developed a guilty passion towards the young girl, the complainant, that she was sexually attractive to him and that he had in effect trained her. If you are satisfied beyond reasonable doubt by the evidence that this was the situation then you can use that in determining whether, on the occasions alleged in the indictment, he gave way to that guilty passion and indulged in the conduct complained of." 66 His Honour added these words, which were the subject of a specific ground of appeal: (S/U 13) "In addition if you are satisfied to the degree required, that is beyond reasonable doubt, in relation to one of the charges you may use that fact to assist you in the same way in relation to the other charges." 67 His Honour concluded his directions on this aspect with the following comment, which appears to contradict the direction given immediately before: (S/U 13) "The evidence must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime or been guilty of one piece of misconduct he is therefore the sort of person who would be likely to offend again. You cannot substitute this evidence for the specific acts charged in the indictment. It is admitted on the basis that I have referred to only and can only be used in that way." 68 With respect, it is difficult to see how a finding of guilt on one charge can readily be used to assist in determining guilt on another. It is possible that the conduct found in one charge may be evidence of guilty passion, which may assist in determining another charge. However, careful directions would be required to deal with that circumstance. Determining count 3 (the last in the sequence), for instance, would not assist in determining the first charge (the grape incident). The Second Trial 69 Having been convicted in December 1998 as a consequence of the first trial, AN was tried again before the same Judge, and another jury, in March 1999. There were five charges which may be summarised as follows: · Count one charged that between December 1970 and December 1971 the appellant did unlawfully carnally know his step granddaughter, she then being under the age of 10 years, namely 4 years (s73 Crimes Act, 1900). · Counts two to five each alleged that AN had indecently assaulted his step granddaughter on various occasions when she was 6 years old (count two), 8 years (counts three and four), and between 10 and 11 years (count 5) (s76 Crimes Act, 1900). 70 The step granddaughter was born on 7 March 1966. She gave evidence in relation to counts two to five inclusive, in which she said that she had a recollection. She had no recollection of the episode giving rise to the first count (involving the allegation of carnal knowledge). Her older brother gave evidence concerning that episode, which I will deal with separately below. 71 Returning to the counts alleging indecent assault, the second count arose out of an incident when the stepdaughter was six years old. She alleged that AN gave her a piggyback, and placed his fingers under her shorts, and on her vagina. 72 The third and fourth counts arose out of the same incident. The complainant was then eight years old. She used to visit her grandparents at their property in the country. She said that she went to a shed with her brother. AN came to the shed. He persuaded the brother to keep a watch. AN then removed the complainant's red shorts. He placed his tongue upon her vagina (count three). Later her brother did the same, after which AN once more placed his tongue on his granddaughter's vagina (count four). 73 Count five arose out of a later visit to the property. According to the complainant, AN encouraged her to "have sex" with a neighbouring boy. In the course of a conversation soon after, "something came up" about the complainant falling pregnant. It was alleged that AN, in these circumstances, obtained his wife's contraceptive device, an applicator, which he then filled with cream, and inserted in the complainant's vagina. 74 Returning to the count alleging carnal knowledge at a time when the complainant was four years old (count one), the complainant's brother gave the following evidence: (T.38) "Q. And when you did that, what happened, what did you observe about …? A. Very scared, we all were. Q. And what did you see in relation to him and …? A. He was trying to put his penis inside her. Q. And what did you in fact see? A. One of us was standing at the end of the table, my brother was facing him and … and I was at the end of the table, I saw everything. Q. And what did you in fact see? A. His penis trying go inside my sister." 75 In cross examination, the complainant's brother said this: (T.40) "Q. What was … wearing? A. Nothing. Q. How long had … been wearing nothing for? A. About ten minutes. Q. And you lifted … up with no clothes on at all, is that right? A. That's correct. Q. And you placed her on top of his body? A. On his penis. Q. On his penis? A. Yes. Q. And then what happened? A. He tried to thrust her. Q. He tried to thrust her? A. Mm hmm but she was too young for him so she screamed stop. Q. She was too young for him she screamed stop and you and … were there whilst this was occurring, is that right? A. Yes it was, yes. Q. How did that incident stop? A. … screamed so we took - I took her off it. I just took her and we run." The Grounds of Appeal 76 As with the first trial, during the course of argument on the appeal, it was apparent that a new trial was necessary in respect of the second trial. First, the Crown relied upon the same defective Notice under s97(1) in respect of tendency evidence. 77 Secondly, his Honour gave the same direction as set out in para 66 above in the second trial. I believe, with respect, this was a misdirection justifying a new trial. 78 Thirdly, there was a misstatement of the evidence in the course of the summing up. His Honour did not have the advantage of a daily transcript. He was obliged to rely upon his notes. As it happens, his note of the evidence on one aspect was inaccurate. The summing up on this aspect was rather more adverse to the accused than the evidence justified. Application for Acquittal 79 The appellant did not seek, except upon one count, a verdict of acquittal. With that exception, it was acknowledged by the appellant, that the appropriate order was for a new trial on each count. 80 The exception was count one in the second trial (the count alleging carnal knowledge). It was asserted that there was no evidence upon which a jury, properly instructed, could infer beyond reasonable doubt, that the appellant penetrated, in the least degree, his step granddaughter. 81 I disagree. The purpose of the appellant, according to the complainant's brother, was to "go inside (his) sister". He was described as having "tried to thrust her" while she lay naked on top of him. She was described as screaming. I believe this charge, as with the remaining charges, should be the subject of a new trial, should the Director of Public Prosecutions so determine. Order 82 The order made by the Court on 14 September 2000, which I supported, was as follows: 1. That in respect of each count in both trials, the appeals are allowed. 2. The convictions in each case are quashed, and the sentence set aside. 3. There should be a new trial. ********** 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. 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