New South Wales Court of Criminal Appeal CITATION: RWC v R [2010] NSWCCA 332 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 19 November 2010 JUDGMENT DATE: 22 December 2010 JUDGMENT OF: Simpson J at 1; Price J at 151; Garling J at 152 DECISION: (i) appeal against conviction allowed, convictions quashed. (ii) there be a new trial on all counts. CATCHWORDS: CRIMINAL LAW – aggravated sexual intercourse without consent – act of indecency – context evidence – test of admissibility – tendency evidence – test of admissibility – purpose of tender – test not applied – new trial ordered - CRIMINAL LAW – aggravated sexual intercourse without consent – proof of lack of consent – alternative verdict available - CRIMINAL LAW – sexual offences – unreasonable verdict – test of unreasonable verdict – verdict not unreasonable Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 CATEGORY: Principal judgment DJV v R [2008] NSWCCA 272 ES v R (No 1) [2010] NSWCCA 197 HML v The Queen [2008] HCA 16; 235 CLR 334 Leonard v R [2006] NSWCCA 267; 67 NSWLR 545 M v The Queen [1994] HCA 63; 181 CLR 487 CASES CITED : MFA v The Queen [2002] HCA 53; 213 CLR 606 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 RG v R [2010] NSWCCA 173 SKA v R; R v SKA [2009] NSWCCA 186 SKA v The Queen [2010] HCATrans 198 The Queen v Nguyen [2010] HCA 38 PARTIES: RWC (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2008/17646 COUNSEL: A Smith SC (Appellant) D Arnott SC (Respondent) SOLICITORS: MDR Lawyers (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/17646 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 4 December 2009 IN THE COURT OF CRIMINAL APPEAL 2008/17646 SIMPSON J PRICE J GARLING J 22 December 2010 RWC v R Judgment 1 SIMPSON J: This is an appeal against conviction. On 4 December 2009, following a jury trial, the appellant was convicted in the District Court at Lismore of three counts of aggravated sexual intercourse without consent. These charges were brought under s 61J of the Crimes Act 1900. Two circumstances of aggravation were relevant. They were that the complainant was under the age of 16 years, and that she was under the authority of the appellant (she was his daughter, aged nine, 10 or 11 at the time of the incidents giving rise to the charges). Additionally, the appellant was convicted of committing an act of indecency towards a person under the age of 16 years, in circumstances of aggravation, an offence against s 61O of the Crimes Act. In this case the single circumstance of aggravation was that the complainant was under the authority of the appellant (that she was under the age of 16 years is an element of the s 61O offence). All offences were alleged to have been committed against the same complainant, between 5 July 2003 and 10 December 2004. 2 An offence against s 61J carries a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 10 years is prescribed. An offence against s 61O carries a maximum penalty of imprisonment for 5 years. No standard non-parole period is prescribed. 3 On 12 May 2010 Black DCJ sentenced the appellant. On each s 61J count he imposed a sentence of 13 years and 4 months with a non-parole period of 10 years, commencing on 3 December 2009; on the act of indecency charge he imposed a sentence of a fixed term of 3 years, also commencing on 3 December 2009 and to be served concurrently. 4 The appellant now appeals against the convictions. He has abandoned an application for leave to appeal against the sentences. The Crown case Overview 5 The complainant was born on 29 November 1993, to the appellant and his then wife, DC. An older sister, KC, was born on 11 March 1992. In about November of 1998 the appellant and DC separated, and the marriage was later dissolved. At the time of separation the family were living in a town called Wollongbar; after the separation, DC, the complainant, and KC moved to Ballina and the appellant remained in Wollongbar. DC established a relationship with another man, to whom it is only necessary to refer as "Tony". 6 DC and the appellant established a regime of shared parenting. It is unnecessary to go into the details of the arrangement; it is sufficient to say that, on a regular basis, the complainant and KC would go to the appellant's home and stay there for some nights. 7 During this time, the Crown alleged, the appellant displayed a sexual interest in the complainant. This included treating the complainant "like his wife", kissing her on the lips, holding her "like I was his wife", and making her sleep in his bed; he told her that he loved her, and touched her on the vagina and the breast. 8 The charges themselves related to the events of two separate occasions, both during the period identified in the indictment, which covered the period when the complainant was in Year 5 at school. The first of these occasions was "about three-quarters of the way through the year", before the complainant's birthday (in November) and near the appellant's birthday (at the end of September). The complainant was in the appellant's bed and he was "holding me really tight"; she thought he was "pretty drunk"; she wanted to call her mother, but he did not allow her to do so; he penetrated her vagina, initially with his hand, and then with his penis. He told the complainant that "it was right" but that she was not to tell anybody. The digital penetration of the vagina gave rise to the first count on the indictment; the penile penetration gave rise to the second count on the indictment. 9 The second occasion was about one month later, on or around the complainant's birthday. The complainant again was in bed with the appellant. He was not as intoxicated as on the previous occasion. He again digitally penetrated the complainant's vagina, and then masturbated to ejaculation. The digital penetration gave rise to the third count on the indictment; the masturbation in the presence of the complainant gave rise to the fourth count, of an act of indecency. The defence case 10 The defence response was a denial of all allegations. It will be necessary to examine, in some detail, evidence upon which the appellant relied in support of his defence. The trial The evidence of the complainant 11 The evidence in chief of the complainant was given, in the first instance, via video recordings of two interviews in which she had participated, on 23 and 26 November 2007. That procedure is authorised by s 306S of the Criminal Procedure Act 1986. That evidence was supplemented by her giving oral evidence from a remote location, pursuant to s 294B of the Criminal Procedure Act. 12 The first interview took place on 23 November 2007, with Detective Senior Constable Rebecca Scott of the Joint Investigation Response Team ("JIRT"), a multi-disciplinary unit involving NSW Police and the NSW Department of Community Services. Also present was Ms Jan Williams, a caseworker with the Department of Community Services. It was just six days before the complainant's 14th birthday; the second interview, three days later, was three days before her 14th birthday. 13 Although the videotapes are probably available for viewing by this Court, I have, consistently with the position I adopted in SKA v R; R v SKA [2009] NSWCCA 186, not viewed them. Bearing in mind that the correctness or otherwise of that position is currently under review in the High Court (SKA v The Queen [2010] HCATrans 198), counsel were invited to put submissions to the contrary. No such submission was received, from either counsel. 14 In the first interview, the complainant gave an account of events substantially in accordance with the outline of the Crown case I have given above. (I note that she pinpointed the date of the break up of the marriage of the appellant and DC as when she was "about 2", which would be 1995-1996; DC said it was in November 1998, when the complainant would have been five years of age. I doubt that there is any significance in this discrepancy. Certainly it did not give rise to any cross-examination.) 15 It is, however, convenient to extract some of the more significant answers that the complainant gave. 16 At an early stage in the interview the complainant said that she had ceased contact with the appellant about two years previously, because she did not want to go back there. She said that was because she did not feel safe there; and that, in turn, was because "he didn't treat me fair", "he did stuff I didn't like". This was: "… he emotionally hurt me, and he touched me sometimes." At this stage in the interview it is clear (from the transcript) that the complainant became distressed. 17 When asked to explain, the complainant said: "He treated me like I was his wife almost, and he said I wasn't allowed to go or something, that I was going to stay … there with him." She repeated that: "He just didn't treat me fair." She said: "Like, he kissed me on the lip stuff, and he held me like I was his wife. And he made me sleep in his bed." She said this began when she was in Year 5, at the age of 10 or 11. 18 She contrasted the manner in which the appellant dealt with her with the way he treated her sister, KC, who slept in her own room. 19 The complainant said that she did not want to sleep in bed with the appellant but did so because: "I just didn't think I had a choice … it just seemed so much struggle." She said: "He'd tell me that I wasn't going to leave, and at that stage I …" Here she was cut off by the interviewer, who asked if the appellant said anything else, to which she replied: "He always told me that he loved me and that it was the right thing." 20 She then went to recount the physical conduct of the appellant. She said: "When he made me sleep in his bed … he'd, like, hold me really tight and, like, I wasn't allowed to go and … sometimes he'd touch me, and I didn't like it." 21 This prompted a question as to where the appellant touched her. She initially said: "Down there" and then: "My vagina and stuff." "Stuff" was "my boobs". 22 She said that he used his hands, but: "Sometimes he tried to, yeah, use his penis" which he put in her vagina. When asked about the penile penetration, the complainant said that she thought it happened twice. 23 The interviewer then dealt with the occasion on which the first two offences are alleged to have occurred. The complainant said: "I was in his bed and he was holding me really tight … and I was going to go call Mum … but he didn't let me … and I think he was pretty drunk … He was just touching me and stuff and, with one hand, and the other hand he was holding my hands with. And then he put his penis in me." 24 She said that she was trying to roll away but that he would not allow her to do so; he was touching her, inside the vagina, with his hand; "it just really hurt". 25 He then put his penis in her vagina. He told her that it was "right", and that she was not supposed to tell anyone. She said that she was "pretty scared". 26 The complainant then answered questions about the second occasion. She said that she and the appellant were in bed. There is some apparent confusion in her answers about the time of day of this event. She said that it was daytime; that the appellant had made her sleep in his bed the night before and that they were still in bed and he would not let her go. She then said that it was midday. She thought that because a clock radio next to the bed had activated. In any event, she said that the appellant was rubbing his penis, that he held onto her and would not let her go; he used his fingers to penetrate her vagina, and then masturbated by rubbing his penis. She saw ejaculate coming from his penis and onto the sheets. 27 The second interview really did not cast any additional light upon these allegations. 28 After the jury had viewed the videos of the complainant's interviews, the trial advocate (for the Crown) asked some additional questions. He showed the complainant a series of cards and notes and letters that she had written. Although it will be necessary in due course to say a good deal more about these, it is sufficient, at this stage, to say that they consistently avowed the complainant's love of the appellant, and, sometimes, hatred of her mother. For present purposes, one will be sufficient to give the flavour. This is a document dated 13 September 2004, in which the complainant had written (I have retained the original spelling and punctuation): "I imagin all bad sorts of things happening to my lovely Daddy And I Love Dad so Much and I MISS so much I WOULD kill mum, I HATE MUM, I LOVE DAD. Dad said he might be able to pick me up on tuesday, but I rekon they wont let him. Im realy scared that Dad will think I Don't love him when he rings me early Tonight cause I wont be there, I'll be at the counceller or kung fu. Im really scared about that. I MISS MY DAD I LOVE him so much Im scared he'll think I DONT LOVE him when he rings to night hes ringing early but I wont be home (at counceller or kung fu) I HATE MY MUM I never want to see her again I HATE her I Hate her. I LOVE MY DAD SO MUCH MUM WILL get ang When he rings I love my Dad so much he wants me to be happy 'but' I CANT UNLESS I LIVE with him fulltime Noone helps me and I want Dad to know not to ring until 7.30 Tonight I LOVE my dad so much. I HATE MY MUM I Never ever want to Live or see my F**kn mum again I want to Live with my Dad Full time." Two illustrations followed; the first of a stick figure of a female with the word "mum" above it, and a cross through the illustration; the second a drawing of a male figure and circled by three hearts, with the word "DAD" and circled by another heart. This document was signed by the complainant. 29 After she was shown these documents, sequentially, and had their contents read to her, the complainant was asked to explain the circumstances in which she had written them. She said: "It was because of the things he said to me, he'd say things like, 'If you don't come live with me, you don't love me.' 'You don't love me do you.' 'If you don't come live with me then I'm moving off to Western Australia and you'll never see me again.' And I was just young you know, I didn't know what to do." (AB 264) 30 The complainant was then shown a printed version of an SMS message she had sent to KC's boyfriend, MT, on 30 May 2007, and his reply. In her message to MT, the complainant wrote: "When I was about 10 I got serious depression. I would see things that weren't there and hear things that weren't happening. I stopped talking to everyone and never ate. Then for some reason I wanted to live fulltime with my dad … And I became really obsessive with staying there, spewing up my insides all the time, I cried everyday and was never happy at all, except when I was with my dad. I became to trust him and push my mum out my life. Then one day I was at his house and [KC] wasn't there. He told me to come to his room and lay in his bed. I did what I was told because I loved him so much and thought that it might make him happy if I did. I had no ide (sic) what would happen. Also he drank heavily everyday. Then when I laid down on his bed he pulled down my pants. I wanted to stop him but I couldn't move and then he raped me and nobody knew and I never told anyone. After that about one month later, I (I was about 11 then) realised that I hated my dad and I began to break free of my depression. I began to hate him a lot so much that I called him and told him I wouldn't see him again, which was a lot for me to do then. I have gone in and out of counselling many times. But they don't work, all they do is lockup the sadness inside you so that it can be released at the next vulnerable time." (AB 268-269) That concluded the complainant's examination in chief. She was then cross-examined. 31 To a large extent, it appears that the cross-examination was based upon quite extensive records and reports from a variety of individuals in the medical and counselling professions. This resulted in propositions being put to the complainant, apparently drawn from histories and notes taken by doctors (including a psychiatrist) psychologist and counsellors. The actual documentation that seems to have been the source of those propositions never found its way into evidence (with some exceptions, a psychiatric report, and progress notes of a psychologist). The complainant was repeatedly asked if she "accepted" the propositions put. To a large extent her answers were equivocal – frequently, she said that she could not remember, but that she "accepted" the propositions, or the possibility that what was being put had occurred. But later (AB 307) she said: "I don't understand what you mean by when you ask do I accept that, does that mean I agree with that?" 32 The cross-examination established that, during 2004, the complainant had received counselling from a number of people in various branches of those professions. These included her class teacher, Ms Ruskin; a school counsellor, Colleen Visser; a psychiatrist, Dr Michelle Fryer; and a psychologist (wrongly named in the transcript also as Dr Fryer, accurately Ms Claudia Valenzuela); a Paul Johnson (who the complainant thought was a "natural counsellor, psychologist or psychiatrist, in Ballina, I think"). 33 A report by Dr Fryer was tendered. There was then a discussion about whether the report ought to be read to the jury in the hearing of the complainant, the judge expressing some sensitivity, given the complainant's age and the nature of the contents of the report. Not unreasonably (and exhibiting a considerable degree of maturity) the complainant interjected: "With all due respect your Honour, how am I supposed to answer questions if I –" 34 After discussion, partly in the absence of the jury, his Honour told the jury that the report would not be read in full, but that defence counsel would read to the complainant those parts of it on which he intended to cross-examine. 35 The complainant agreed that, during 2004, she had seen Dr Fryer, and that when she did so, she had depressed mood, severe anxiety, and was in an obsessive compulsive frame of mind. She agreed that she had spoken of fears for the appellant, difficulties with her parents, and had said that she wanted to live with the appellant. She agreed that she had reported, up to six times a week, incidents of bullying at school. She agreed that from about the middle of 2004 she had begun losing weight, suffered from poor concentration, that her school performance deteriorated, that she was constantly talking to herself, and that it was about this time that she started seeing the school counsellor, Ms Visser. She saw Ms Visser on 8 December 2004. She agreed that, on that day, she drew a picture in which she placed the appellant very close to herself, as the most important person in her life. She agreed also that, a week earlier, on 1 December, she had told Ms Visser that she wanted more access with the appellant. She accepted that she had seen a general practitioner, Dr Traise (who had referred her to Dr Fryer) in early September 2004, and she had spoken to him of a possible two week trial period living with the appellant full-time, and that this "would show mum" and that she had told Dr Traise that when she was with the appellant she was happy. 36 She accepted (while expressly disclaiming any actual memory of it) that she had developed a practice, at home, of looking out of a window to see if her father was driving up and down the street. (No time frame was specified in the questions on this topic.) 37 The complainant was asked about an occasion, in October 2004, when she went on a school excursion to Brisbane (AB 313). The group stayed in a holiday park. She agreed that she had resisted going on the excursion because it would disrupt her routine of seeing the appellant. At her request she had stayed with the appellant the night before she left. She accepted (again while denying any memory of it) that she sat on the floor, at his feet, while he sat on an easy chair. 38 It was put to the complainant that she had found it difficult to settle that night, and that she had, on three occasions, left her room to go to the appellant's room, and that on each occasion the appellant had taken her back, holding her hand and reassuring her about the excursion. To each of these questions she replied that she could not remember; at times she accepted the possibility of what was put, but eventually diluted this by saying "anything's possible". To a suggestion made to her that, during that evening, she was becoming hysterical, she replied: "could be". The complainant did agree that, while on the excursion, she was upset because she wanted to be with the appellant, and that she had told her teacher that she wanted to go home. She denied a proposition that, at Dream World, she had smeared blood on her face. 39 She agreed that, during the latter part of 2004, she had told her teacher that the appellant came into her classroom, and told her that he loved her; that in the playground she saw him standing under trees; that he came to the door of the classroom and watched her; and that, at lunchtime, she sat in the front office because she could see the appellant come into the office each day; that she worried when doors were closed; that the appellant would knock on the door and say "[C], open the door, I can't get in", and that she would try to open the door for him; that she became very upset when the office staff told her to stop opening the doors. It was clearly implied in the questions, and, it seems, accepted by the complainant, that these assertions by her to Ms Visser were no more than imagination, even fantasy. 40 The complainant agreed that she had told Ms Visser that if she accidentally kicked the leg of a chair, she might think it was the appellant's leg; but she accepted only the possibility that she might also have said that she would rub the leg of the chair and "tell daddy how sorry [she] was". 41 She accepted the possibility that she might have said to Ms Visser: "Why doesn't anyone understand I just want to be with dad?" 42 It was put to the complainant that her evidence the previous day, in chief, that the appellant had told her that if she did not come to live with him he would go to Western Australia was incorrect; she maintained that he had said that. 43 Finally, it was put to the complainant explicitly that the appellant had never touched her vagina, and had never had penile sex with her, nor attempted to do so. She adhered to the account she had given in the interview. 44 Earlier in the cross-examination, a series of questions was put to the complainant, apparently designed to challenge her statement in the interview that, about 2 years previously, she had ceased contact with the appellant. The questions related to counselling discussions with Ms Visser in February 2005, in which, it was suggested, the complainant had told Ms Visser that she maintained weekly telephone contact with the appellant, and that the complainant had shown the appellant her school portfolio. She agreed with the former proposition, but did not accept that she had shown the appellant her school portfolio. 45 In re-examination, the complainant said that she had expressed fears for the appellant. Her fear was that the appellant would think that she did not love him, and that caused her anxiety. That was why she had said that she wanted to spend more time with him. She said that she had not in fact wanted to spend more time with the appellant, but that she had said so because of what he had said to her, including that he would leave and go to live in Western Australia. She said: "He'd say 'You don't love me, do you, if you don't come and live with me you don't love me, why don't you love me?' over and over again, he'd always say it." (AB 330) She said that at the time she did love the appellant. The evidence of DC (the complainant's mother) 46 Evidence was then given by the complainant's mother, DC. Her evidence was largely directed to the behaviour of the complainant over the relevant period. She said that in Years 3 and 4 at school, the complainant was a happy child and was doing well at school. DC noticed changes during 2004, when the complainant was in Year 5. In August of that year the complainant became very anxious, started to lose a lot of weight, and she returned from visits to the appellant complaining that she had had stomach cramps and had been vomiting all weekend. She also complained of being bullied at school. As a result, DC arranged for the complainant to see the family general practitioner, and also to have counselling. That was when she saw Ms Visser. After discussion with Ms Visser, DC took the complainant to Dr Traise, the general practitioner, and to Paul Johnson, who was a school counsellor and who also did some freelance work with adolescents; and then to child psychologist Claudia Valenzuela. Arrangements were also made for the complainant to be assessed by Dr Fryer with whom she consulted three times, in September and October 2004. DC confirmed that the complainant was reluctant to go on the school excursion to Brisbane, because, the complainant said, she did not want to leave the appellant. But at about Christmas of 2004 the complainant said that she wanted to cease regular visits to the appellant. She then refused to spend half of the Christmas holidays with him, as was the previous practice. KC did spend some time with him. Although DC asked the complainant why she would not go to the appellant's, the complainant gave no explanation, merely repeating that she did not want to go. 47 It was not until mid-2007 that the complainant first told DC anything about the conduct now alleged against the appellant. DC first became aware of these allegations when she received a telephone call from KC, who was obviously distressed, and who asked DC to return home. DC did so, and had a conversation with the complainant. The terms of that conversation were not in evidence. 48 Cross-examination of DC established that, during the second half of 2004, she and Tony were arguing regularly, and that, at times, this distressed the complainant. DC agreed that, from August to the end of 2004, she was receiving "a clear message" from the complainant that she wanted to live with the appellant. DC said, however, that that was what the complainant was "implying", but that she was very emotional about it. 49 She said that, at times, she and the appellant met with Ms Valenzuela, the object of the exercise being to achieve some resolution of the problems the complainant was experiencing. She agreed that prior to Christmas 2004, the complainant was hostile to her (DC), but that after Christmas she wanted to spend time with DC and have only telephone contact with the appellant. She agreed that, in the second half of 2004, when the appellant returned the complainant and KC home after their spending time with him, the complainant "would hang onto to him almost for dear life", and would become hysterical, saying that she wanted to stay with him and not come home to DC. She agreed that she had been told about the complainant's fantasies about the presence of the appellant at her school, and that the complainant attempted to hurt herself, on at least one occasion deliberately crashing her bicycle so that she would injure herself. She agreed that all of this took place against the background of the complainant's expressed wish to be with the appellant. The evidence of KC (the complainant's sister) 50 Also called as a witness was the complainant's sister KC. Her evidence was also given from a remote location pursuant to s 306S of the Criminal Procedure Act. 51 KC's evidence was given over objection. Immediately prior to her being called, argument took place as to the admissibility of the evidence it was anticipated she would give. I will return to this when considering the relevant grounds of appeal. Since KC's evidence is the subject of one of the grounds of appeal it is necessary to set it out in some detail. 52 Asked about anything different in the way the appellant interacted with her and with the complainant, KC said that the appellant "favourited" the complainant. When asked to be more specific, she said: "He would always make her be next to him, every – when we went out shopping they would, he would make sure they were always holding hands … He would always make her sit next to him and when driving in the car, she would always sit in the front seat and he would make sure that they held hands." (AB 387) 53 She said that if she (KC) ever sat in the front seat the appellant would get angry with her and say: "No this seat's for [the complainant], she sits in the front." She said that: "… when in the lounge room them two would be laying on the couch together and I would be sitting on another lounge by myself and them two would be laying down together and he would hug her and they would kiss each other on the lips." (AB 388) She said that the appellant never kissed her in that manner, and that she thought it was inappropriate and she told them to stop. 54 In more general terms, she said the appellant treated her and the complainant differently. The transcript records that she said: "… He would make her do things and he would put her into the position of a carer … [by way of example] He would tell her to go to the fridge and get him more beers, he would make her do tasks around the house. He would just make her two (sic – do) things that – and he never did that to me … he would pressure her to do those things." (AB 389) 55 The questioner then turned to occasions when the appellant and his daughters were visiting his mother in Lismore and to KC's assertion that the appellant favoured the complainant. KC said: "… they would exclude me and he would make sure that she would be sitting on his lap and he would place his hands on her thighs and he would still kiss her in front of my nan." (AB 389) She said that the appellant kissed the complainant on the lips while they were at his mother's house. 56 She said that, at Wollongbar, when the three were together watching television: "I would be sitting on a separate lounge watching the TV and them two would be on another lounge together. Normally they wouldn't be watching the TV but actually holding each other or he would be kissing her … They would be laying down on the couch, each other and like spooning each other … Laying down next to each other, against each other, holding each other." (AB 390) 57 She said that the appellant pressured both girls to return to his house and threatened that if they did not, he would hurt himself or go and crash his car. She said: "He said he would move away to Western Australia and we'd never see him again and we would never have a father." (AB 390-391) 58 She said that, in the Christmas holiday of 2004, the complainant decided not to visit the appellant any more, but that she herself continued to do so, for about another 2½ years. 59 Cross-examination was initially directed to challenging KC's evidence to the effect that the appellant favoured the complainant, and treated KC less favourably. She agreed that the appellant had generously helped her with school assignments and that, on one occasion, he had driven KC and six or seven of her friends to Brisbane for a concert in a minibus hired for the purpose. She agreed that he gave her money and birthday presents. 60 Despite a sustained challenge, KC maintained that she had observed the appellant kiss the complainant on the lips. 61 She agreed that she had liked spending time with the appellant, and that, in December 2005, she had sent an email to the appellant in the following terms: "Hey, hey dad, what's happening. Dad this weekend is the weekend mum and everyone is going to Auntie Doss's for her birthday party thingo. Dad I don't want to go, she's making me. Today she made me go to stupid [the complainant's] counsellor, I don't want to go. Do I have to go? Isn't it my weekend with you? We need to go Christmas shopping, do I have to go?" (AB 400) 62 The point of this, and much other cross-examination, was to call in question KC's evidence of the differential treatment she said was afforded by the appellant to her and the complainant. (If that attack were successful, it could have had either or both of two consequences. It could have reflected adversely on KC's credibility; more specifically, it could have shaken the Crown case that the appellant displayed an interest of a sexual nature in the complainant.) KC was also cross-examined to challenge her assertion that inappropriate conduct on the part of the appellant towards the complainant had taken place in the presence of the appellant's mother. 63 It was put to her that, until Christmas 2004, the complainant wanted to spend as much time as possible with the appellant. Her reply was guarded. She said: "I wouldn't say it in those words but she wanted to spend time with him yes." (AB 405) 64 Counsel persisted in putting to KC, firstly, that she had not at any time seen the appellant kiss the complainant on the lips; and secondly, that her evidence that she had told them to stop was incorrect. She said: "I got angry at them and I told them to stop." (AB 414) 65 The cross-examination concluded with the following series of questions and answers: "Q. … I suggest to you that you did not tell her to stop and desist in any behaviour with her father? A. I did. Q. Nor did she say to you it's none of your business? A. She did. Q. I suggest to you at no stage was anything other than normal requests made for getting of items from the fridge or anything like that? A. They weren't normal. Q. I suggest to you that at no stage did he sit, did [the complainant] sit in his lap at your nanna's place? A. She did. Q. That he did not put his hands inappropriately on her thighs? A. He did. Q. And did not kiss her in an inappropriate way in front of your nanna? A. He did. Q. Did you say anything to nanna about it? A. I did, I looked at her and I asked questioningly 'well?' and she didn't do anything. Q. Are you seriously suggesting that she would ignore, she a mature woman would ignore that? A. Well I'm not her, but she did ignore it. Q. I'm suggesting to you that you have completely made that up haven't you? A. No I haven't." (AB 416-417) Other evidence 66 Another witness, Danielle Teague, a short-term partner of the appellant, was interposed during KC's evidence, but, in the end, her evidence was immaterial. Detective Scott also gave evidence but, again, it is unnecessary to refer to it. 67 I turn now to deal with the various letters and notes that the complainant wrote during the course of 2004, and that formed part of the prosecution evidence. 68 The first of these was the two-page document dated 13 September 2004, to which I have already referred. The next is dated the following day, 14 September. The complainant wrote: "My sister is angry cause im sad and keep using the telephone to ring Daddy. I wish mum would let me keep a Photograph of my Daddy next to my bed. I hope my mum and Daddy dont have to get a lawyer to sort out my Bad problems when all I want is to live with my Dad full time or at least a bit more. Soon I will wrap a birthday Present for Daddy hopefully by then I will live with Daddy full time. I get enough sad allready that I hate my mum but she wont let me see him or ring him more or ring him more. all of my Daddys car tyres are good/Marvellous but mums tyres have hardly any tread on them when im with Daddy I feel like im flying through the air with my Daddy. I Love my Dad so much." (AB 59-60) There was another letter in similar vein dated 12 October 2004. 69 The next document is undated but appears to be a school assignment in which the complainant was required to write a letter to herself. She began: "I have a ok life, perfect Dad, Mum and Sister. But I need my Daddy more … (I need my (Daddy) DAD.) (NOW)." (AB 66-67) 70 The next document again is undated and appears to be a letter written by the complainant to her teacher. She began by saying: "IM ALLWAYS SAD AND CRYING I HATE MY LIFE." She went on to say: "I WANT TO LIVE WITH MY DAD FULLTIME … I love spending time with DAD … I love my DADDY so so much BUT I want to spend more time with him … when DAD rings me I only talk to him for 5 minutes mum purpusly keeps herself on the phone so DAD can't get through so I CAN'T TALK TO DAD I MISS DAD and worry that the girls dad sees (friends) hurt him. Dad is sad when has to drop us off on Saturday and sometimes (mostly) he cries but he tries to hide it, then I get more sad … I miss DADDY I WANT TO LIVE with him fulltime … sometimes I hert myself because I love/miss my DAD so much and I CAN'T WAIT to be with him …" (AB 70-72) It concluded: "I never want to see her again. I love my Dad. I want to live with him Full time. I ABSOLUTELY HATE MY MUM. I HATE her I LOVE DAD I HATE her I LOVE DAD I HATE her I LOVE DAD I HATE her I LOVE DAD So much So much." (AB 73) 71 On 1 November, the complainant wrote: "he gets lonely when were not with him he gets sad when we have to go and when were not with him theres noone else with him so he gets lonely. he 'sort of' says That he wants another girl friend so he is not lonely. when we have to go he 'some times' crys. When hes 'sad' he cries or has a worried look and when on thursday when we come to his home hes really happy that where here. Tony and Mum fight ' all ' the time about small things and Mum Gets up set and it goes on on for a while and MUM Gets Sad and tells TONY to 'Get OUT' of the house and they start fighting again. they fight ' all ' the time, NOT sometimes ' all ' of the time …" (AB 76-77) 72 However, at a time that cannot be precisely identified, the complainant turned half circle. Her notes and writing declared that she hated the appellant and begged not to be made to go back to him. In one document (17 January 2005) she wrote: "all he does is drink he has about 10 beers a night all we can do is watch TV he has termites and ants everywere he has a mouldy home …" (AB 88) 73 In another, dated 20 January 2005, she wrote: "I quit looking after DAD because - it was gross and stressfull and wore me out and I don't want to do it anymore." (AB 92) 74 In another of the dame date she wrote: "I saw him sad so I thought I should look after him ● cleaning up the house – 9/10 - he sometimes aksed me - Sometimes I thought I should - it was that messy I don't like it ● Getting beers he asked me to ● Cooking - he asked me to do it Worst thing are he allways asked me to do stuff with him and get beers … he was allways sad so I gave him a hug 3/7 times and I though ow I don't want to do this 'stop' I kept doing it but I didnt want to … I don't want to be neer him any more he was gross It's like he's a big ball of shit he was drunk even from beers he didn't show up stop it DAD stop it." (AB 93) 75 Also in evidence was a report of Dr Fryer of 20 December 2004. This was in the form of a letter to Dr Traise, who had referred the complainant to Dr Fryer. Although the report was dated 20 December 2004, Dr Fryer said that she had assessed the complainant in September and October of that year. She said that the complainant presented with: "depressed mood, severe anxiety and obsessive compulsive symptoms associated with her father. These had worsened over the prior 1 to 2 months and were significantly impacting on her school functioning and peer relationships." Later, Dr Fryer wrote: "She described bullying at school, fears for her father and difficulties with her parents; and wanted to live with her father." (AB 109) She assessed her as suffering from: "major depressive disorder with marked anxiety, obsessions and compulsions in the context of family discord and paternal stress." (AB 110) * * * 76 The appellant was interviewed by police on 5 December 2007. He said that he believed that the last time he had seen the complainant was on Christmas Day 2004. He believed that this was because the complainant had a breakdown, caused by the trauma she had suffered as a result of witnessing unfair treatment of him by his employer, the Department of Education. He denied any sexual impropriety with the complainant. He said he was "dumbfounded" by the allegations, and that, during the time the complainant was experiencing emotional difficulties, he had involved himself in the counselling. He believed that he and the complainant had "an outstanding father-daughter relationship". 77 In apparent contradiction of an earlier answer, he said that he had seen the complainant on Christmas Day 2006, when he returned KC home, and the complainant had given him a hug and told him she loved him. 78 He said that he had slept in the same bed as the complainant but only in about 2000 or 2001, when she was little girl and he had limited furniture. He definitely did not do so in 2004, "or anywhere near that time". The defence case The evidence of the appellant 79 The appellant gave evidence. He gave detailed evidence of a positive relationship with both of his daughters. One way in which he spent his time with them was to take them to Lismore, where his mother lived, and they would spend some time with her. He said that his brother was usually there also, as his mother had had a heart attack and he had moved in as her carer. Again having regard to the grounds of appeal, it is convenient to set out one of the answers given by the appellant. The transcript records that he was asked: "She is an elderly lady and somewhat in turn (sic – infirm), is she?" He answered: "At the moment, yes, as a result of her illness." (AB 433) 80 He disagreed "totally" with KC's suggestion that he had favoured the complainant, and gave details of activities undertaken with both daughters, including helping KC with her schoolwork. 81 He denied kissing the complainant on the lips, and he denied putting his hands on her thighs. He denied threatening to leave to go to Western Australia if his daughters did not come to see him. He described as "complete nonsense" the suggestion that he tried to get the complainant to sleep in his bed. In this respect, he said that, initially (presumably immediately after the separation from DC) he had very little furniture, and he had to share a bed with them, but that that was when they were very little girls, and did not happen again. 82 He was asked about "the problems" that emerged with the complainant during 2004. He said that occurred, probably towards the middle of the year, and that there was a change in the complainant who was: "… obsessed with living with me. She was obsessed with staying with me and not going back to her mother." (AB 435) 83 He then gave evidence of being notified by the complainant's school that the complainant was isolating herself from her friends resulting in bullying, and also that the complainant was so obsessed with him and with living with him that at recess and lunchtime she would not play with her friends, but would wait at the administration building. The appellant surmised that the complainant associated the administration building of the school she attended with him, because he was a deputy principal of a primary school. 84 He gave evidence about attending the family counselling, and about the Brisbane excursion. 85 He denied each of the allegations the substance of the charges. 86 He said that when she returned from the Brisbane excursion, the complainant presented him with a number of gifts, for which she had used the entirety of the spending money she taken with her. The gifts included a ring which the complainant encouraged him to wear (although he did not). The appellant said that he felt sorry for KC because the complainant did not bring her back any gifts. 87 The appellant gave a very different account of the termination of the contact relationship between him and the complainant. He said: "I was in a very difficult situation where I – I love my daughters dearly but in this case we're particularly talking about [the complainant], I love [the complainant] and regardless of what's going on in the courtroom here at the moment I still love my daughter dearly. I had this – I love [the complainant] dearly but I was in the situation where I saw [the complainant] who was becoming ill. She had this unnatural obsession with me and living with me while at the same time I was encouraging a positive relationship with her mother and with me at the same time. I totally agree with joint parenting. So I was in the situation where I had a daughter that I loved. I saw my daughter becoming very, very ill and I had to make a very hard decision to do something about that and I had to not see [the complainant] as part of her treatment." (AB 444) 88 He described the complainant as "ill and suffering" and said that he had to "cooperate to do something about it" and one of the means was separation from the complainant for a time. He was seeking methods of maintaining contact with the complainant in appropriate ways, either by telephone or via the internet, so that she did not believe that her father had abandoned her. 89 He said that throughout 2005 he did not have "normal contact" with the complainant, and there developed "a pattern" when he did not see her at all but that, thereafter (although infrequently) the complainant would come to the door at her mother's place when he returned KC after a visit. He said that on a couple of occasions the complainant was excited to talk with him about her school portfolio, and another when she was excited because she had been to the optometrist and had new glasses. (This appears to be a further contradiction of the answers given in the interview, that he had not seen the complainant since Christmas Day 2004.) 90 The appellant was cross-examined at some length about his relationship with the complainant. The cross-examination focussed substantially upon the truth or otherwise of his statement in his interview that he and the complainant had "an outstanding father-daughter relationship", and upon the appellant's participation in the various counselling exercises. * * * 91 After the appellant's evidence, counsel addressed, the trial judge summed up and the jury retired to consider its verdict. After about two hours (which included the lunch adjournment) the jury sent a note asking a question, which his Honour read onto the transcript, as follows: "Is there a reason why [the appellant] did not have supporting witnesses, ie [the appellant's] mother, [the appellant's] brother?" 92 His Honour responded in the following way: "The first thing I say to you about that is I emphasise about the burden of proof. The accused does not have to produce anybody, prove anything to you at all and it is very important that you remember that." 93 He went on to refer to the report of Dr Fryer and to draw to the jury's attention a reference in that report to "a paternal uncle [of the complainant] with schizophrenia". He told the jury there was no other evidence about who that was and it was for them what they made of it. 94 He then read to the jury that part of the evidence of the appellant in which he referred to his brother, and to his mother as "somewhat infirm", the passage I have extracted above. Less than half an hour later the jury returned with the verdicts of guilty of all charges. The appeal 95 The grounds of appeal are framed as follows: "1 The convictions were unsafe and unsatisfactory having regard to the evidence adduced at the trial. 2 The jury could not have been satisfied beyond reasonable doubt that the appellant was guilty of the offences having regard to the evidence that was adduced at the trial. 3 The learned trial judge erred in law by permitting the crown to lead evidence from [KC] in that:- (a) the evidence was irrelevant to any issue pertaining to the appellant's guilt of the offences; (b) the evidence was entirely prejudicial and lacked any or any proper probative value, and/or (c) the probative value of the evidence was clearly outweighed by its prejudicial effect. 4 The learned trial judge erred in law in failing to direct the jury on the use that could be made of the evidence of [KC] in determining the guilt of the appellant. 5 (Abandoned) 6(a) The trial judge failed to properly or at all direct the jury in respect to the issue of consent in regard to counts 1, 2 and 3 of the indictment. (b) In respect of counts 1, 2 and 3, the crown failed to establish beyond reasonable doubt that the complainant did not consent to the alleged acts of intercourse or that the appellant knew that she was not consenting." 96 It is convenient to begin with grounds 3 and 4. Grounds 3 and 4: the evidence of KC 97 It may be observed at the outset that ground 3 as framed lacks specificity. It fails to specify with precision that evidence of KC of which complaint is made. 98 KC's evidence may be said to fall into a number of categories, some of which overlap: ● evidence that the appellant favoured the complainant over KC, with specific instances given; ● evidence of what KC considered to be inappropriate physical conduct by the appellant towards the complainant, or between the appellant and the complainant; ● evidence that the appellant required the complainant to undertake a certain role; ● evidence of threats made by the appellant to move to Western Australia. 99 After KC was called but before she had given any evidence of substance, objection was taken to parts of the evidence proposed to be adduced (AB 376-382). Before the court for that purpose was the statement she had made. In paragraph 7 of that statement, KC referred to, and particularised, the differential treatment she said was given by the appellant to her and to the complainant. This was in very substantially the same terms as the evidence she ultimately gave, as set out above. Paragraphs 7 and 8 read: "7 Dad always treated [the complainant] different to me. The way he treated her differently to me included: - When we would drive in the car he would always make her sit next to him in the front and they would hold each others hand while driving. If I ever sat in the front dad would get angry at me and tell me to sit in the back. - If we all went shopping together dad would hold [the complainant's] hand. He would never hold mine. - [the complainant] and dad would often kiss each other on the lips and I didn't understand why as Mum never kissed like that and I never saw any other parents kissing there (sic) kids on the lips. I would often yell at [the complainant] and Dad to stop kissing each other. Dad never kissed me on the lips. - Dad put [the complainant] in the position of a wife in the way he treated her. He'd make her care for him. He would order her around to get him things. He would touch her in an affectionate way and he wouldn't touch me like that. - Dad would take [the complainant] and me to see his Mum who lived in Lismore. I remember Dad would sit [the complainant] on his lap and touch her thighs affectionately and they even kissed each other on the lips in front of his Mum. I always thought it was weird that his Mum never said anything to them about it. - When [the complainant] and I were at Dad's we would all watch TV and [the complainant] and Dad would like (sic – lie) on the couch together and he would cuddle her. He never cuddled me whilst watching TV and I would have to sit on a different couch. 8 When Dad would drop me and [the complainant] back at Mum's after we had visited him, he would blackmail us. He would say things like if we didn't come back to see him the following weekend he would hurt himself or he would move away and we would never see him again." 100 Objection was taken to paragraph 7 in its entirety. The bases of inadmissibility identified were, firstly, lack of relevance, secondly, if relevance were established, that the prejudicial effect of the evidence outweighed its probative value; finally, that that part of the paragraph in which KC stated that the appellant put the complainant in the position of a wife was opinion evidence. 101 After hearing argument (during which the trial advocate made some limited concessions) Black DCJ determined to admit the evidence, although with some excisions. An important excision was the reference to the appellant putting the complainant in the position of a wife. (It is to be noted that the complainant already given evidence to that effect, in those terms.) His Honour expressly held that, of those parts of the statement that survived his ruling, the probative value outweighed any prejudicial effect. He described the evidence as "background material". 102 Neither at the trial nor on appeal were the submissions advanced on behalf of the appellant clearly focussed. The objection, as argued at trial, was primarily directed towards paragraph 7 of KC's statement. 103 At the trial counsel made the following submissions: "The para (7) your Honour in its entirety I object to as first of all irrelevant to the case as presented and secondly, if it is relevant, it is – its prejudicial effect outweighs any probative value which might be derived from it. The most obvious points of inadmissibility if I may be so presumptuous as to say that, are though, would be the third dot point from the bottom. That is 'Dad put [the complainant] in a position of a wife'. That in my submission is just an opinion and the second sentence really is more of the same, although – sorry the second sentence is – really doesn't take it here nor there. The third sentence seemingly likewise. The last sentence of that dot point is lacking in some sort of particularity, but at the same time doesn't really take the case any further in my submission in so far as there is no suggestion of impropriety in that. This is, in my submission what is important here. So your Honour but overall, I mean if one takes perhaps from the top there, he would sit next, 'make her sit next to him in the car and holding hands and get angry at me'. This is more like inappropriate territory in a different jurisdiction than matters that should be considered as relevant in proving beyond reasonable doubt that he was – he had an unnatural passion for this girl and that he – that this was part of that unnatural passion for this girl. Really, the fact of whether or not they hold hands or whether he got angry or not and told [KC] to sit in the back doesn't take it anywhere at all in my submission there. The holding hands and going shopping, I mean she's a younger child, it does not take it anywhere in my submission. If anything, sibling rivalry could be about as high as one could put it. The kissing each other on the lips, your Honour again there's nothing specific about this in terms of date or time or much else as to when the offences occurred it would seem, were alleged to have occurred. But it's my submission that when one takes that third dot point in conjunction with the point about my client's mother, that is: 'Dad would take [the complainant] and me to see his mum who lived at Lismore, sit [the complainant] on his lap and touch her thighs affectionately and they even kissed each other in front of his mum.' Your Honour it there assumes the sort of relevance really that one is really thinking about here to the facts in issue, to a fact in issue. Namely, whether or not this was an example of unnatural passion or grooming or something of that nature and my submission is that the probative value does not at all assume such a height that it outweighs the prejudicial effect of such material, particularly as it's not related to a point in time. For example when one thinks about it, if [the complainant] (sic – KC) was to say well during September 2004 I noticed dad and [the complainant] going off into a room hugging and kissing and things of that nature, that would be a different matter perhaps, particularly if [the complainant] was saying something similar. That would be a different matter, but that's not what is put here your Honour. What is put here is the general sort of aspersion of something that may not be quite appropriate or perhaps, I mean I'm not sure that your Honour would necessarily say fathers don't kiss children on the lips occasionally. It depends on the extent I suppose, it's drawing the line. But it looks more like matters that, put at its highest, look like some inappropriate sort of parenting issues or perhaps marginally inappropriate parenting issues. Rather than any pattern of behaviour that could be said to demonstrate a guilty passion of some description that he possessed towards this child. It does have these components of sibling rivalry in there. Then if one even looks at that last dot point: 'watching TV …' It's really very, very marginal but it's prejudicial effect in my submission outweighs the probative value … so really that's what the defence is saying there." (AB 376-377, italics added) 104 Counsel then turned his attention to paragraph 8 of the statement and made the following submission: "There is in my submission nothing that could be derived from that that could be relevant to the allegation that on these occasions, these two occasions he was alleged to have done these things." (AB 377) 105 From these submissions it is not easy to identify the basis on which, or, indeed, the specific evidence of KC to which, objection was taken. No reference was made to any provision of the Evidence Act 1995, and no reference was made to any authority. 106 In response, the trial advocate made the following submission: "What the Crown says is that this is evidence from [KC] that is capable of being considered by the jury as consistent with evidence already given by [the complainant] and the Crown says it's evidence that is ultimately relevant to the disputed fact in issue. Namely, whether as part of this behaviour or treating his younger daughter more as a wife or a partner in a generalised sense, that that behaviour ultimately led to sexual abuse of her." (AB 380) 107 In these circumstances his Honour had a difficult task in determining the admissibility of the evidence. He gave a ruling, which does not need here to be reviewed. 108 The same lack of focus permeated the appeal. Ground 3 of the appeal, in the first instance, challenges the relevance of the evidence, but then proceeds to make complaint which may be seen to be framed in terms either of s 101(2) or s 137 of the Evidence Act. In written submissions, the evidence of KC was put into the category of "background or relationship evidence". 109 Prior to that, however, submissions such as the following were made: "[KC] spoke of an occasion when the kissing occurred in front of the appellant's mother and brother and raising it with the grandmother (not that it provoked any reaction from them.) None of this was of sufficient moment at the time for her to report it to the mother or to CV although she said she mentioned it to some person 'Thea' a purported counsellor who does not become relevant in the case. These alleged actions did not prevent [KC] from continuing to spend time with the father between 2005 and 2007 up until the disclosures being made." Submissions such as this can only be taken as an attack upon the credibility of KC. They do not go to the admissibility of the evidence. 110 Evidence of the general kind given by KC has occupied much judicial time and energy, in this, and other, jurisdictions. The principle that applies in jurisdictions in which admissibility of evidence is governed by uniform evidence legislation (see below), as is NSW, are not necessarily identical with those that apply in jurisdictions in which issues of this kind are governed by common law principles. 111 In Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 McClellan CJ at CL, with whom Howie and Latham JJ (Howie J with additional observations) agreed, said: "72 The admission of evidence of a sexual relationship between a complainant and an accused other than evidence of the particular acts charged has caused difficulties in many cases. The origin of those problems lies in the difficulty which is sometimes experienced in categorising the purpose for which the evidence is tendered. Is it evidence tendered only for the purpose of throwing light upon the relationship at the time of the events which led to the offence (ie relationship evidence) or is it admitted as evidence of the sexual desire or feeling of the accused for the complainant (ie tendency evidence)? It is necessary to clearly identify the purpose of the tender so that its admissibility can be properly considered and appropriate directions given . 73 Evidence of a sexual relationship beyond the matters charged may have a powerful influence on a jury's verdict. It will most likely reflect sexual desire in the accused for the complainant making it essential that the relevant provisions of the Evidence Act are identified and applied and appropriate directions are given in a manner which ensures there is no misunderstanding by the jury of the part the evidence can legitimately play . Because of its potential prejudice the risk of a trial miscarrying may be greater when the allegation relates to sexual acts involving children than sexual acts between adults." (italics added) 112 In these passages McClellan CJ at CL identified a distinction that has developed in NSW (particularly as a result of the specific provisions of the Evidence Act) between two classes of evidence that might broadly be called evidence of criminal or discreditable conduct on the part of an accused person (towards the alleged victim) other than conduct the subject of the charge or charges. One category is commonly referred to as "relationship" or "context" evidence (the former term having fallen somewhat into disfavour and the latter assuming supremacy). The other category is "tendency" evidence. 113 In ES v R (No 1) [2010] NSWCCA 197 Hodgson JA identified a third category that he called "motive" evidence, but he found little to distinguish this from tendency evidence, at least in cases involving allegations of sexual misconduct by an adult towards a child: at [38]. 114 The distinction is of real importance in jurisdictions (of which NSW is one) which operate under the evidentiary regime of what was once hoped and intended would be uniform evidence legislation. 115 In those jurisdictions, the evidence legislation (eg Evidence Act 1995, NSW) makes express provision with respect to the admissibility of tendency evidence. Admission of evidence that is not tendency evidence is regulated by the general provisions of the Evidence Act. That is why McClellan CJ at CL, in Qualtieri, emphasised the necessity to identify the purpose of any such evidence. Where the evidence is properly characterised as tendency evidence, the relevant regulation of its admission is to be found in s 97 and s 101 of the Evidence Act (subject, of course, to its relevance having been established: s 56). Where the evidence is not tendency evidence, its admission is regulated, in the first instance, by relevance (s 56), and then, in a criminal proceeding, by s 137. The tests to be applied are not identical, although the differences might be said to have some subtlety. 116 The starting point in respect to the admission of any evidence is its relevance to the issues in the proceedings. Once relevance is established, where the evidence is properly seen as tendency evidence, it is not admissible if: (i) reasonable notice in writing has not been given to the party against whom it is tendered of the intention to adduce the evidence; (ii) 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. There was no evidence that notice in writing had been given by the Crown of the intention to adduce tendency evidence. That is unsurprising since neither the Crown nor the defence appear to have turned their minds to that question. However, by s 100, the court is empowered to dispense with notice requirements. Moreover, by s 101, in a criminal proceeding, tendency evidence may not be used against a defendant unless the probative value of the evidence substantially outweighs its prejudicial effect. 117 Evidence that is not tendency evidence remains subject to the initial relevance test. Where it is relevant, there remains the further control imposed by s 137. By that provision, applicable to a criminal proceeding only, the court must refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice. (Since s 137 is specific to criminal proceedings, s 135, which is of general application, can be put to one side.) 118 The tests imposed by the two sections, while having considerable overlap, are different. It is not possible to discern, from the submissions made at trial, whether the test contained in s 137 or that contained in s 101, was being addressed. 119 The first step in the consideration of this ground of appeal, therefore, is to identify the category into which the disputed evidence falls. That explains the criticism made earlier that objection was taken to the whole of KC's statement, without any attempt to isolate any parts of it that were admissible, or to categorise any parts of it in terms of use and admissibility. 120 I am prepared to work on the assumption that what was objected to was paragraph 7, particularising what KC said was the appellant's preferential treatment of the complainant, that the appellant put the complainant "in the position of a wife", that he kissed her on the lips (in a way that KC considered to be inappropriate), and that, while watching television, he cuddled her (in a way that he did not cuddle KC). 121 Categorisation of the evidence depends upon an analysis of the purpose for which it was tendered. 122 Evidence that is called context evidence is not tendered as going directly to the guilt of the accused person. It is tendered to explain the relationship between the complainant and the accused (hence the term "relationship" evidence) or to explain what may otherwise be unexplained, or raise questions in the minds of the jury concerning the behaviour of the complainant in response (or non-response) to the conduct of the accused the subject of the charge or charges. Commonly, evidence of a history of sexual abuse or misconduct is tendered to explain why a complainant passively yields to the abuse, shows no surprise, or makes no complaint: see HML v The Queen [2008] HCA 16; 235 CLR 334. 123 Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges. 124 As I have noted above, the written submissions filed on behalf of the appellant asserted categorically that the evidence of KC "surely was" background or relationship evidence. If that were correct, the admissibility test is that contained in s 137, to which no reference was made. Senior counsel for the Crown agreed. Senior counsel for the Crown was driven to take this position. If the evidence was properly categorised as tendency evidence, then it is clear that the appropriate steps (for example notice) had not been taken, and the appropriate tests (s 97, s 101) had not been applied. 125 Notwithstanding the united front of counsel, the contention is untenable. In DJV v R [2008] NSWCCA 272 the accused was charged with two counts, one of sexual intercourse without consent on a person under the age of 16, the second of indecent assault. In each case, the alleged victim was the daughter of the accused. In addition to evidence of the offences, the Crown led evidence from the complainant, and from her brother, that the accused watched the complainant through the bathroom window when she was in the shower. 126 Initially, the Crown recognised that this was tendency evidence and served the appropriate notices under s 97; however, ultimately, it tendered the evidence as "relationship" evidence. Of this, McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) said: "39 The evidence of the appellant viewing the complainant in the shower could never have been described as 'relationship' or 'context' evidence … It was evidence which would previously have been described as 'evidence of a guilty passion.' It was undoubtedly tendency evidence. Because there was no issue which justified the admission of the evidence as relationship evidence and it was not proffered as tendency evidence it should have been rejected." 127 ES is a case with significant similarities to the present. The accused was charged with a number of sexual offences against the complainant, his stepdaughter. The complainant gave evidence of these incidents. Her older sister, K, gave evidence of having observed an incident (not the subject of a charge), in which the complainant was sitting on a bed, partially undressed, with the accused in front of her, his fingers in her genital area. 128 It was in considering a ground of appeal related to this evidence that Hodgson JA identified the three categories of evidence to which I have referred above (context, motive, tendency) but effectively collapsed the second and third. In that respect, his Honour said: "39 However, although there is in my opinion a theoretical distinction between categories (2) and (3) … and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard [ v R [2006] NSWCCA 267; 67 NSWLR 545] at [68], [101]]." In that case his Honour did not attempt to analyse the purpose for which the evidence was tendered (something considered important by McClellan CJ at CL in DJV . That was because no s 97 notices had been served, and the evidence was therefore not admissible for a tendency purpose (even if, had notices been served, it may have been so admissible)). 129 I recognise that tendency evidence is defined, in the Dictionary to the Evidence Act as: "… evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection." ie to prove tendency. I have already referred to the Crown submissions at trial, which did not identify the purpose for which the evidence was tendered. Indeed, from that submission, it is difficult to divine just what the Crown had in mind. On a liberal construction of the definition, whether evidence is or is not classified as tendency evidence depends upon what is in the mind of the party (or the legal representative of the party) who tenders the evidence. That cannot be so. 130 In many (one would hope most) cases, the purpose of the tender identified by the Crown will be sufficient to determine whether the evidence is, or is not, tendency evidence within the Dictionary definition. But that will not always be so. Neither a first instance court, nor this Court, is bound by the Crown's identification of the purpose of the tender. The task is to identify, in reality, whether the evidence is tendered for a tendency purpose or is not: RG v R [2010] NSWCCA 173. In this case, particularly having regard to DJV and ES, I am satisfied that it was tendered as tendency evidence, and that is the only relevance it could have had. 131 It follows that, there having been no notice given (and no application for dispensation), and the tests provided in s 97 and s 101 not having been applied, the evidence ought not to have been admitted. Ground 3 of the appeal must succeed, as, axiomatically, must Ground 4. 132 I would add that these reasons ought not to be seen as any criticism of the trial judge. His Honour was denied the assistance, from both counsel, that he was entitled to receive. Neither made any attempt properly to identify the nature of the evidence, nor the appropriate tests to apply with respect to its admission. Ground 6 133 Having regard to my conclusion above, I can deal briefly with ground 6. 134 In ground 6(a), the appellant complains of the directions given to the jury in respect to the issue of consent, relevant to each of the three counts of sexual intercourse without consent; by ground 6(b), the appellant asserts that the Crown failed to establish beyond reasonable doubt that the complainant did not consent to the sexual intercourse. 135 The ground is available by reason of the nature of the sexual intercourse without consent counts. The appellant was charged under s 61J of the Crimes Act, which provides: "61J(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years." 136 Subsection (2) lists the circumstances which amount to "circumstances of aggravation". These include: "(d) the alleged victim is under the age of 16 years, or (e) the alleged victim is … under the authority of the alleged offender …" Absence of consent is an essential element of a charge under s 61J. 137 Section 66C(2) provides: "(2) Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years." Absence of consent is not an element of a charge under s 66C(2). The circumstances of aggravation specified in sub-s (5) include that the alleged victim is under the authority of the alleged offender. 138 Section 66A(2) provides: "(2) Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence." Again, the specified circumstances of aggravation (sub-s (3)) include that the alleged victim is under the authority of the alleged offender. Absence of consent is not an element. 139 Section 7(2) of the Criminal Appeal Act 1912 provides: "(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity." 140 The dates specified in the indictment as the dates between which the offences were committed were 5 July 2003 and 10 December 2004. The complainant was born on 29 November 1993. On 5 July 2003 she was nine years of age; by 10 December 2004 she was 11 years of age. 141 Given the dates specified on the indictment, it might be thought that it has not been established that the offence undoubtedly found by the jury to have been committed was an offence against s 66C(2) or s 66A(2). However, the evidence was unequivocal: that the events in question occurred at the end of 2004, probably between September and the end of November. At that time the complainant was over the age of 10 years and under the age of 16 years, and the offence came within s 66C(2). 142 Had I otherwise found that this ground of appeal ought to be upheld, and had I not considered that, by reason of the matters dealt with under grounds 3 and 4, the appellant is entitled to a new trial, I would have proposed exercising the power of the court under s 7(2) of the Criminal Appeal Act. Indeed, during the course of argument, this was put to counsel for the appellant, who acknowledged that he could not argue against that course being taken. Grounds 1 and 2: unreasonable verdict 143 Despite being framed as two separate grounds, these two grounds raise precisely the same issues. 144 I would have preferred to express my views in relation to these grounds more fully. However, having regard to my conclusion that there should be a new trial, to my satisfaction that these grounds should not succeed, to the time of the year, to the possibility that the appellant may be advised to seek bail, and to the indications I have received from the other members of the bench that they agree with the result I propose, it seems to me that the interests of justice are better served by a less than comprehensive explanation for that satisfaction than by delaying judgment for the purpose of polishing that explanation. 145 The test to be applied when such a ground is raised is that stated in M v The Queen [1994] HCA 63; 181 CLR 487 and MFA v The Queen [2002] HCA 53; 213 CLR 606. The former was re-stated by the High Court in The Queen v Nguyen [2010] HCA 38, as recently as 3 November 2010. While paying full regard to the role of the jury in the determination of questions of guilt or innocence, this Court is to ask itself: "… whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 146 In particular, and with specific relevance for the present case, this Court must examine the possible impact of any "discrepancies, … inadequacies … or lack of probative force …" in the evidence. 147 The most significant complicating feature in the present case is the evidence concerning the emotional state of the complainant during the 12 months or so leading up to the dates of the events that gave rise to the charges. Undoubtedly, the complainant was a troubled, even disturbed, child. Both her evidence and that of KC (if properly admitted) established the existence of a deeply worrying family dynamic. 148 These circumstances do not amount to discrepancies or inadequacies in the evidence given at trial. The complainant's troubled history was in the open, and fully available to the jury. In my opinion it was fully open to the jury to reach the conclusion that it did. 149 Moreover, to the extent that it is relevant, I am affirmatively satisfied that the verdicts were correct. The evidence of the complainant's history is, in my view, entirely consistent with the outcome. She plainly had a dysfunctional relationship with the appellant, and with her mother; what might appear to be an unnatural dependence upon the appellant came to a dramatic and sudden end, at about (or just after) the time when she alleged the offences took place. Her affection for the appellant (together with the evidence of his use of alcohol) might well explain the two occasions of his conduct; that conduct explains her sudden loss of affection for him. I would reject these grounds of appeal. 150 The orders I propose are: (i) appeal against conviction allowed, convictions quashed. (ii) there be a new trial on all counts. 151 PRICE J: I agree with Simpson J. 152 GARLING J: I agree with the orders proposed by Simpson J. 153 I agree with her Honour's reasons except for the matters to which her Honour refers in [149] of her judgment. Since those matters are not essential to the decision in this case, I would prefer to refrain from expressing any view about them. ********** 07/07/2011 - Restriction of judgment no longer required - judgment published. - Paragraph(s) Not applicable 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.