New South Wales Court of Criminal Appeal CITATION: DJS v R [2010] NSWCCA 200 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14 July 2010 JUDGMENT DATE: 8 September 2010 JUDGMENT OF: Hodgson JA at 1; Kirby J at 86; Whealy J at 87 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Sexual assaults – Tendency evidence – Trial judge does not direct jury that uncharged incidents suggesting sexual interest in the complainant must be proved beyond reasonable doubt – Whether a miscarriage of justice – Whether the proviso to s 6 of the Criminal Appeal Act 1912 should be applied. Criminal Appeal Act 1912 s 6 LEGISLATION CITED: Criminal Procedure Act 1986 s 294B Evidence Act 1995 s 97 CATEGORY: Principal judgment R v ATM [2000] NSWCCA 475 DJV v R [2008] NSWCCA 272 Gipp v The Queen [1998] HCA 21; 194 CLR 106 R v Haggerty [2004] NSWCCA 89; (2004) 145 A Crim R 138 HML v The Queen [2008] HCA 16; 235 CLR 334 CASES CITED : JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333 Rees v R [2010] NSWCCA 66 RWB v R [2010] NSWCCA 147 R v TAB [2002] NSWCCA 274 R v Toki (No. 3) [2000] NSWSC 999; (2000) 116 A Crim R 536 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 PARTIES: DJS (appellant) The Crown FILE NUMBER(S): CCA 2008/0657 COUNSEL: S BUCHEN (appellant) S DOWLING/ B KAPLAN (Crown) SOLICITORS: Legal Aid Commission of NSW (appellant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2008/657 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 3 October 2008 - 26 - IN THE COURT OF CRIMINAL APPEAL 2008/0657 HODGSON JA KIRBY J WHEALY J 8 SEPTEMBER 2010 DJS v R Judgment 1 HODGSON JA: On 11 August 2008, the appellant was arraigned before Blackmore DCJ on seven counts, charging him with various sex offences involving the complainant, his stepdaughter. 2 There were three counts alleging sexual intercourse with the complainant without her consent, knowing she was not consenting, when the complainant was under the age of 16 (counts 1, 4 and 6). There were alternative counts to each of these, alleging sexual intercourse with the complainant, a child above the age of 10 years and under the age of 14 years (in the case of count 2) or above the age of 14 years and under the age of 16 years (in the case of counts 5 and 7). There was one count of indecent assault on the complainant, a child under the age of 16 years (count 3). 3 Counts 1 and 2 were alleged to have occurred between 22 and 24 September 2005 at Thurgoona NSW. Count 3 was alleged to have occurred between 1 and 30 April 2007 at Albury NSW. Counts 4 – 7 were alleged to have occurred between 22 April and 9 May 2007 at Albury NSW. 4 The appellant pleaded not guilty to all counts and was tried before the trial judge and a jury. On 15 August 2008, the jury returned a verdict of guilty on counts 1, 3, 4 and 6; and it was not necessary for them to give a verdict on the alternative counts 2, 5 and 7. The appellant was sentenced to a total term of imprisonment of 10 years, with an effective non-parole period of six years six months, expiring on 11 December 2014. 5 The appellant appeals against his conviction. Background facts 6 I will begin by outlining some background facts that can be accepted as not being in dispute. 7 The complainant was born in September 1991 in Adelaide. While in Adelaide, the complainant's mother C had been friendly with the appellant's half-sister JE, and she also met the appellant there. 8 In about 2001, C moved to Albury with three of her five children, namely her eldest daughter J, her third daughter the complainant, and the complainant's younger brother. The complainant's elder brother joined them in Albury later. At the same time, the appellant's half-sister JE moved to Albury with her family, including her daughter NE (who had been born in October 1993). 9 In about 2002, C formed a relationship with the appellant, following which they lived together in the Albury district, and had two daughters. 10 In about 2003, C and the appellant were living together in a house at Thuroonga, a suburb of Albury. It appears that for at least some of that time, there were six children in the house, with the complainant sharing her bedroom with her older sister J. It appears that at some stage, J and the complainant's elder brother left this house. 11 In about 2005, C and the appellant and the four youngest children lived in a cabin in a caravan park for a couple of months. 12 In about 2005 or 2006, C and the appellant and the four youngest children moved to a house in East Albury, where the complainant had her own bedroom. 13 In Albury, C became friends with a lady CR, who had a daughter JR and a son RR. CR used to visit C at her house in Albury virtually every day. 14 The complainant was a close friend of the appellant's niece NE. NE would come to the East Albury house about a couple of times a week and often stay overnight, sleeping in the complainant's bedroom. JR was also a friend of the complainant, and sometimes she stayed overnight, also sleeping in the complainant's bedroom. The complainant also formed a girlfriend/boyfriend relationship with RR in about 2005. RR stayed overnight at the East Albury house on a small number of occasions, sleeping in the bedroom of the complainant's younger brother. 15 The complainant complained concerning the appellant's conduct towards her in May 2007, first to NE and then to her school principal. She was interviewed by the police on 8 May 2007. The appellant took part in an ERISP interview on 14 August 2007 in which he denied any sexual contact with the complainant. 16 Subsequently, the complainant tried to run away to South Australia with RR, and then did run away with him to Sydney and later to Melbourne. Crown case 17 The complainant gave evidence through a recorded interview that a few weeks after her 13th birthday, when the family was living at Thurgoona, she was in bed one night when she woke up and found the appellant in her bed. The appellant was moving his fingers around in her vagina (counts 1 and 2). This was the first time the appellant did something to her. The complainant did not remember whether she said anything, and she did not think the appellant said anything. The complainant had her eyes closed, she opened them for a minute but she closed them again. What the appellant did hurt and made her feel "yuk". 18 The complainant gave evidence that, about a week before the incident referred to in counts 4 – 7, the appellant came into her bedroom at the East Albury house, and made her give him "a hand job", holding her hand and moving it over his penis (count 3). It lasted about a minute or so, and the complainant kept trying to pull her hand away. 19 The complainant gave evidence that a matter of weeks before the recorded interview, the appellant came into her bedroom in the morning, lay down and started touching her. He had his hand down her pants and had his fingers inside her vagina (counts 4 and 5). He kissed her and then hopped on and had sex with her, this being penile and vaginal intercourse (counts 6 and 7). Her pants ended up around her ankles, she was lying on her back with her knees up and he had opened her legs. He removed his penis before ejaculating on her vagina, and cleaned up with some paper. The complainant thought this occurred on a Saturday, when she had a friend over. She first said this was NE, and later said she thought it was JR; and she did not know whether this friend was in the room. 20 The complainant gave evidence that sexual contact with the appellant had been occurring probably weekly; and earlier she had said "normally I'm half asleep when he comes in". The first sexual intercourse occurred in a cabin in a caravan park. She said she had not complained earlier, because she was scared of what was going to happen, as the appellant had told her he would go away for a long time and they were all going to struggle. 21 In cross-examination, the complainant agreed that, in relation to the alleged incidents in counts 3 – 7, anyone could have come into the room at any time. She agreed that the appellant was annoyed with her having a relationship with RR and had banned her from seeing him; and it was put to her (and denied) that having the appellant charged was a good way of getting him out of the way of her relationship with RR. She denied that there was an occasion when RR had kissed her on the breast, saying he had kissed her on the neck. 22 The complainant's mother C gave evidence that the appellant was very good with all her children. However, she was caused concern when, after the complainant had turned 13, the appellant used to enter the bathroom "all the time" when the complainant was taking a bath, sometimes staying in there a few minutes. C questioned the appellant about this, and he told her not to be stupid because he treated the complainant as though she was his own. 23 C also gave evidence that she would wake up in the morning and find the appellant in the complainant's bed, lying on the pillow next to the complainant. 24 She also gave evidence that the appellant expressed concern about the complainant's relationship with RR. 25 In cross-examination, C said the appellant undertook many duties caring for the children. In relation to finding the appellant in the complainant's bed, in her statement to the police C had said "he was always under his doona and she was under hers"; but in cross-examination, C said this was how the appellant described it to her, and was something she observed only on one occasion. In re-examination she said that on the rest of the occasions, there was just one doona on the bed. 26 The complainant's school principal gave evidence that on 7 May 2007, the complainant said to him that the appellant had been touching her on her breast and vagina. He reported the matter to DOCS. 27 The appellant's half-sister JE gave evidence that, a week or so after 7 May 2007, the appellant asked her if she could arrange for him to see the complainant, and JE said she couldn't. The appellant said to let the complainant know he was not angry at her, and that he loved her. 28 The appellant's niece NE gave evidence (through a recorded interview) that in May 2007 the complainant came up to her at school and told her the appellant had been forcing himself on her for the past three years; and that the complainant then looked like she was going to break down and cry. After that, the complainant came to live at NE's house for four to five weeks. 29 NE gave evidence that she used to stay over at C's house "a lot, like, three times a week"; and that she slept on a mattress in the complainant's room. NE said she'd wake up in the morning and the appellant would be lying next to the complainant, on his stomach with his arm over the top of her. NE said the complainant was under the blanket and the appellant was on top of it, but it looked like it had been moved because half of it was on the floor; and that the appellant was in his "boxers". In oral evidence in chief, NE said she woke up and saw the appellant on the complainant's bed about 80-90% of the time she stayed over. 30 In cross-examination, NE agreed that she had never seen the appellant do anything sexual towards the complainant, and that 7 May 2007 was the first time the complainant had complained to her about the appellant's conduct. 31 The complainant's friend RR gave evidence that on one occasion when he was visiting the complainant at her house, he, she and the appellant were lying on the trampoline. He saw the appellant's hand slip down to the complainant's behind, and after that RR went to put his hand on the complainant's leg and the appellant's hand was there. At another time, at a cousin's farm, people were sitting around a fire and he saw the complainant sitting on the appellant's lap, and the appellant wouldn't let the complainant move. When visiting the complainant at her house, RR noticed that the appellant would frequently take the complainant up to the complainant's room by himself for about 10 – 15 minutes and then the appellant would come out and RR would ask the complainant what was that about, and the complainant would say "nothing". The appellant hated the fact that RR was in a relationship with the complainant, and had tried on numerous occasions to break them up. 32 In cross-examination, RR agreed that on one occasion he had kissed the complainant on the breasts. 33 RR's mother CR gave evidence that she visited C's house very regularly. She said that on one occasion, when she left the lounge-room to go up to the toilet and walked down the hallway, the door to the complainant's bedroom was half open. CR saw the appellant standing beside the complainant's bed putting on a pair of boxers. His boxers were around his knees and CR could see his penis. The complainant was lying on the bed. When the appellant came out, CR said to him "this has got to stop" and the appellant said "nothing's happening". CR told the complainant's mother C that the appellant had been in the bedroom with no clothes on, and C said he quite often slept there. When the complainant came into the lounge-room, CR went to say something to her and she burst into tears; and she said nothing was happening. 34 Detective Melham gave evidence of taking an ERISP interview with the appellant, which was tendered and played to the jury. In this interview, the appellant denied each of the allegations in the counts, and denied any sexual contact with the complainant. When asked if anything had happened about the time of the complaints that may have led to the allegations, he said that he had been hard on the complainant, he was pretty strict, and there was a boy she was going out with and the appellant didn't like the idea of her going out with him and thought she should concentrate on her school certificate. The appellant said there was an occasion when the complainant and RR had been caught out on the bed, when RR was kissing her breasts; and when the appellant found out the complainant had been going out with RR "behind our back", he grounded her, yelled at her and probably smacked her. Appellant's case 35 The appellant gave evidence denying the allegations in the counts and denying sexual contact with the complainant. 36 He gave evidence that he would sometimes go into the complainant's bedroom at night only to say goodnight and not stay very long. He assisted her with her homework. He used to wake the complainant up in the morning by giving her a shake but only staying in the room a couple of minutes to make sure she woke up. He could have sat on the side of her bed, but never got into bed with her in the mornings. He did go into the bathroom when she was there, but only to take her towel in, and he did not stay and did not see her naked. He agreed that C had said to him this was not appropriate behaviour, and he had said "don't be stupid that's my daughter". 37 The appellant denied the incidents on the trampoline and round the fire alleged by RR; and denied being in the complainant's bedroom with boxers down to his knees, as alleged by CR. 38 The appellant gave evidence that he thought the complainant and RR had been too promiscuous for his liking; and after RR had been caught out kissing the complainant on the breasts, he had banned them from being in bedrooms together and from being boyfriend and girlfriend. Trial judge's summing up 39 In this case, notices under s 97 of the Evidence Act 1995 had been served; and before evidence was led before the jury, the trial judge had ruled that some matters specified in the notices could be relied on as tendency evidence, but that one matter in particular should not be given in evidence. 40 Conformably with those rulings, in his summing up the trial judge directed the jury that the Crown relied on certain evidence as supporting the complainant's account and as allowing the jury to conclude that the appellant had an unhealthy sexual interest in the complainant, so that it was more likely that the appellant acted out of that interest as the complainant had said in evidence (summing up p24); and that the jury could consider it in this way (summing up p28). 41 The trial judge identified this evidence (summing up pp24 – 28) as being: (1) Evidence of the complainant's mother C of finding the appellant in the complainant's bed on a number of occasions, and going into the bathroom when the complainant was bathing. (2) Evidence of the complainant's friend NE of observing the appellant on the bed with the complainant. (3) Evidence of the complainant's friend RR about the trampoline incident and about the complainant sitting on the appellant's lap. (4) Evidence of RR's mother CR about seeing the appellant in the complainant's room with his boxer shorts down. (5) Evidence of the appellant's half-sister JE about a message to the complainant that the appellant loved her. 42 The trial judge also told the jury that evidence from the complainant that she first had sexual intercourse with the appellant in the caravan park, and that sexual contact with the appellant was happening regularly, was led by the Crown to provide some context (summing up pp28 – 29). 43 The appellant's counsel had suggested to the trial judge that he direct that "the incidences" evidencing "guilty passion" would have to be proved beyond reasonable doubt (transcript 177); and the topic was later raised again (transcript 198), when the trial judge said he had decided not to give that direction. 44 The trial judge gave the following directions on onus of proof: The next direction of law which I must give you is probably the most important direction of law that I will give you during the course of the summing up. The direction relates to the onus, or the burden of proof. The burden of proof of the guilt of the accused is placed firmly on the Crown. That burden remains upon the Crown in relation to every element of the charge. There is no burden of proof on the accused at all. It is not for the accused to establish his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. It has always been a fundamental part of our system of justice that persons tried in these courts are presumed to be innocent of the crime or crimes alleged against them until a jury of their fellow citizens has been satisfied by the Crown beyond reasonable doubt that they are guilty of those crimes. The accused is entitled to the benefit of any reasonable doubt in your minds. You do not have to be satisfied that the accused is innocent before you should acquit him. You may be quite unable to decide whether he is involved in the particular charge or not. In those circumstances where the facts are left in an uncertain state for you, where you are unable to decide just what did happen you obviously cannot be satisfied beyond reasonable doubt that the accused is guilty and you must therefore acquit the accused even though you do not necessarily think that he is innocent. I should warn you in this context that suspicion is not a substitute for proof beyond reasonable doubt. On the other hand if you are satisfied beyond reasonable doubt that the Crown has discharged the onus upon it, you would in accordance with your oath return a verdict of guilty. I use the expression "beyond reasonable doubt". Those three words are just simple everyday words and in this legal context they have their simple everyday meaning. 45 The trial judge gave the following directions concerning tendency and context evidence. Before specifying the five categories of evidence referred to above, the trial judge said this: Obviously with this and the other allegations made in the Crown case you have to rely on the evidence of the complainant. It is on that evidence that the allegations are based. Whenever that is the case I need to give you a specific warning. The warning is designed to focus your attention on the fact that the Crown case relies on the evidence of one witness. The warning is that you need to scrutinise or you must scrutinise the evidence of the complainant with great care before finding beyond reasonable doubt that the allegations in the indictment are made out. In considering the complainant's evidence you will naturally want to look at what other evidence there is in the case, and in particular if there is any other evidence that might be said to support the complainant's account. The Crown submits that there is other evidence that supports her account. He says that this evidence will allow you to conclude that the accused had an unhealthy sexual interest in the complainant. The Crown submits that if you find that the accused had that interest you would find that it is more likely that he acted out that interest as the complainant has said in evidence by having improper sexual contact with her in the way she has alleged. Then, after specifying the five categories, he said this: What has been decided or what you decide in regard to that matter is entirely a matter for you, ladies and gentlemen. You have that evidence and you can consider it in that way. What is important however is that even if you conclude that the accused did have an unhealthy sexual interest in the complainant, that you not substitute that finding for a conclusion that the accused committed the offences. In other words, you do not simply say that well, he had this unhealthy interest in the complainant and therefore he must have committed the offences. You cannot use the evidence in that way. They do not directly prove the charges themselves. You must still be satisfied beyond reasonable doubt that the accused committed one or more of the charges beyond reasonable doubt before you can find him guilty of those charges, and in that regard the Crown relies on the evidence of the complainant. Finally, there is some other evidence that I wanted to refer to. Firstly, there is the evidence that I wrongly referred to earlier, and that was the occasion where the complainant said she first had sexual intercourse with the accused in the caravan. Now, that is not subject to any particular charge in the indictment. Secondly, there is evidence from the complainant that she said this sexual contact with the accused was happening very regularly and I think she referred to weekly. Now, this evidence was led, ladies and gentlemen, by the Crown to provide you with some context. In other words, if you did not know about these incidents you might have wondered how all of this started and why perhaps it is rather vague and why she is not able to provide more detail with respect to the incidents themselves. It explains from her perspective that it was an ongoing pattern, in effect, one occasion blending into the others. She also said that she had tried to block out the events. But again, it is important that if you accept the evidence that these other incidents took place, for example if you accept that it was a regular event, you still cannot substitute that finding for a finding that the accused is guilty of one or more of the charges in the indictment. In other words I keep emphasising for you, and I hope you understand, that you must concentrate on the fact of the particular charges themselves and decide whether or not those charges are made out beyond reasonable doubt. He did not say anything more concerning the standard to which these matters needed to be proved. 46 The trial judge later referred to the Crown's submissions on tendency evidence: ….. The Crown went through the material that she said showed what she called guilty passion, I have said it was an unhealthy sexual interest, in the complainant and referred to the evidence to which I have just referred in that regard. The Crown submits that you would accept that evidence and that it supports the evidence of the complainant. The Crown particularly referred to the evidence of [CR] who saw the accused standing beside the bed of the complainant with his boxer shorts down. She confronted the accused at the time about that. The Crown submits that well, if you accepted that occurred then you would almost be compelled to accept that there was this sexual interest In the complainant. ….. 47 And the trial judge referred to submissions from the appellant concerning the evidence of CR: In respect of the evidence of [CR] it was submitted how likely is it that that event really took place? The accused denies it. Is it likely he would be standing where a doorway was open such that he could be seen standing part naked next to a bed? Is it not relevant also that the complainant makes no or gives no evidence in respect of that matter at all, and nobody seems to have taken any action about it at that time. Nobody reports that matter to DOCS or to the Police. Issues on appeal 48 The appellant relies on the following ground of appeal: 1. The learned trial judge erred by omitting to direct the jury that it had to be satisfied beyond reasonable doubt of the appellant's sexual interest in the complainant before it could use this evidence against him. 49 This raises two issues which I will consider in turn: (1) Did the trial judge err in his directions to the jury, and if so precisely in what respect? (2) Should the proviso to s 6(1) of the Criminal Appeal Act 1912 (the Act) be applied? 50 That subsection is in the following terms: 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Error by trial judge? 51 Mr Buchen of counsel for the appellant submitted that it was established that in sexual assault cases the appropriate standard of proof of tendency evidence was beyond reasonable doubt: DJV v R [2008] NSWCCA 272 at [30], quoted with approval in JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333 at [32]. These cases apparently also accepted that, where evidence was tendered to prove a tendency, being the sexual interest of an accused in a complainant, the jury must be told that they must be satisfied of that interest beyond reasonable doubt. This was supported by reference to HML v The Queen [2008] HCA 16; 235 CLR 334 at [247], Gipp v The Queen [1998] HCA 21; 194 CLR 106 at [76], R v Toki (No. 3) [2000] NSWSC 999; (2000) 116 A Crim R 536 at [75], R v TAB [2002] NSWCCA 274 at [39] – [44], R v Haggerty [2004] NSWCCA 89; (2004) 145 A Crim R 138 at [23] – [25]. 52 Mr Buchen submitted that the jury should be properly directed as to the standard of proof in relation to tendency evidence, and they should be directed to apply that standard to the tendency evidence, and only then to reason on the question of guilt. There was a real danger that tendency evidence might be accepted to a lesser standard, and then used impermissibly. Mr Buchen submitted that where there was a misdirection that could lead to impermissible use of tendency evidence, there was a potential to distort the jury's reasoning: see JDK at [56] – [57]. 53 The Crown accepted that the trial judge erred in failing to direct the jury that before they could use tendency evidence to support the Crown case, they must be satisfied of those matters beyond reasonable doubt. 54 I agree that the trial judge was in error: the jury was invited to use the five matters referred to by the trial judge as tendency evidence supporting a finding of sexual interest of the appellant in the complainant; and accordingly the jury should have then been given appropriate directions as to the standard of proof. 55 However, I think it is important to note that it would not have been sufficient for the trial judge to direct the jury that they must be satisfied beyond reasonable doubt of a sexual interest of the appellant in the complainant. In my opinion, where particular incidents are relied on in the Crown case of showing a sexual interest of an accused in a child complainant, the jury should be directed that they cannot treat those incidents as supporting a finding that the accused had a sexual interest in the complainant unless they are satisfied beyond reasonable doubt that those incidents occurred. This is supported by what was said in Gipp at [76] (reference omitted): [76] 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. 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. See also HML at [247] per Hayne J. 56 The distinction between the sexual interest, and the incidents relied on to prove that interest, is not unimportant. If it were merely the sexual interest of which the jury had to be satisfied beyond reasonable doubt, the jury could be satisfied beyond reasonable doubt of that interest by giving weight to evidence of many incidents of which (or at least, of all of which) they were not satisfied beyond reasonable doubt, including the evidence of the charged acts. Having been satisfied of that interest beyond reasonable doubt, the jury might then be assisted to reach satisfaction beyond reasonable doubt of the charged acts. 57 In deciding whether they are satisfied beyond reasonable doubt of any one of the incidents relied on, in my opinion the jury can have regard to the whole of the evidence in the case. It would not be necessary, and in my opinion it would be misleading, to direct the jury that, in deciding whether they are satisfied beyond reasonable doubt that each particular incident occurred, they must confine themselves to evidence going directly to that incident. 58 The Crown accepted that the error of the trial judge, in failing to direct the jury that they had to be satisfied beyond reasonable doubt of incidents relied on as evidence of tendency, was sufficient to show a "miscarriage of justice" within the first part of s 6(1) of the Act. As pointed out by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [18], this phrase has been treated as meaning any departure from trial according to law, regardless of the nature or importance of that departure; and the use of the words "substantial" and "actually occurred" in the proviso are not mere ornamentation, but rather are "intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure". See also Weiss at [26] –[27]. 59 Accordingly, it is appropriate to move to consideration of the application of the proviso to this case. Proviso 60 The application of the proviso has been authoritatively discussed in Weiss, particularly at pars [35] – [36], and [39] – [45]: [35] The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred". [36] By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso. In cases, like the present, where evidence that should not have been adduced has been placed before the jury, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the trial jury actually did with that evidence. In cases, like the present, where the evidence that has been wrongly admitted is evidence that is discreditable to the accused, it will almost always be possible to say that that evidence might have affected the jury's view of the accused, or the accused's evidence. And unless we are to return to the Exchequer rule (where any and every departure from trial according to law required a new trial) recognition of the possibility that the trial jury might have used wrongfully received evidence against the accused cannot be treated as conclusive of the question presented by the proviso. ….. [39] Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt. [40] Reference to inevitability of result (or the converse references to "fair" or "real chance of acquittal") are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to "the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record". But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, s 568(1) of the Crimes Act. It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred. The statutory task and the proviso [41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. [42] It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration. [43] There are, however, some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not "to speculate upon probable reconviction and decide according to how the speculation comes out". But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt. [44] Next, the permissive language of the proviso ("the Court … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal … ") is important. So, too, is the way in which the condition for the exercise of that power is expressed ("if it considers that no substantial miscarriage of justice has actually occurred"). No single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. [45] Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind. 61 Mr Buchen submitted that this was not a case where the error made at trial would, or at least should, have had no significance in determining the verdict returned by the jury. He submitted this was a case, like Rees v R [2010] NSWCCA 66, of oath against oath, so that the proviso was not available. 62 Mr Buchen referred to RWB v R [2010] NSWCCA 147, in which the Crown had conceded that in a certain respect a comment of the trial judge exceeded proper bounds; but the Court (Simpson J, with whom Johnson J and McCallum J concurred) considered it was a matter of "minimal significance" (at [114]) and was satisfied that the comment occasioned no miscarriage of justice. The judges went on to say that, if either ground of appeal had been decided in favour of the appellant, they would have applied the proviso, because they were satisfied that the appellant was proved beyond reasonable doubt to be guilty. Mr Buchen submitted that this was an unusual case, especially because it was not put to the complainant that the incidents she described did not occur, and the offence was rather that it was not the accused who had done them. 63 Mr Buchen also submitted that it was the responsibility of the Crown, if it wished to adduce evidence of this type, to ensure that its reception did not lead to a miscarriage of justice: R v ATM [2000] NSWCCA 475 at [86]. 64 Mr Buchen submitted that the quality of evidence in this case was such that this Court could not be satisfied that the appellant was proved beyond reasonable doubt to be guilty. 65 As regards the complainant's evidence, he submitted that this was uncorroborated, in that there were no witnesses to the incidents, no medical evidence, and no early complaint. He submitted that her evidence was vague and confused. He submitted that it was implausible in alleging offences in residences occupied by many people, where another person may have been in the room and there was always the possibility that other persons could come into the room. He submitted that the complainant had a motive to lie, because of the conflict with the appellant over her relationship with RR. This unsatisfactory evidence had to be weighed against the strong and consistent denials of the appellant. 66 Mr Buchen submitted that the other witnesses were all closely associated with the complainant. He submitted that CR's evidence of the "boxer shorts" incident was implausible, in that it was unlikely that such conduct would take place in a room with an open door when other people were in the house. There was some inconsistency between CR's original statement to the police and her evidence; and neither the complainant nor her mother C gave evidence about this incident. The evidence concerning the appellant's presence in the complainant's bed in the morning was not supported by the complainant, but was given only by the complainant's mother and the complainant's best friend, and there was inconsistency in the mother's evidence. There was no evidence from the complainant supporting the mother's evidence of the appellant's presence in the bathroom when the complainant was in there. The evidence of RR was of incidents of which the complainant gave no evidence, and RR had a motive to give evidence against the appellant, because of the appellant's opposition to his relationship with the complainant. 67 The Crown responded to these submissions as follows: 19. This is not a case in which the admissibility of the tendency evidence is challenged. Nor is it a case where no directions were given. On the contrary, the important operative parts of the tendency direction were given, namely not to use the evidence as a substitute for evidence on the charges, and not to reason that as the appellant had a sexual interest in the complainant he must have committed the offences. 68 The case for the prosecution did not, according to the Crown, rest solely upon the evidence of the complainant (cf Rees v Regina [2010] NSWCCA 66). Four witnesses provided the following evidence, described by the Crown as compelling support for the complainant, namely: 21(a) (CR) saw the appellant in the complainant's bedroom, pulling up his boxer shorts from around his knees while the complainant lay in bed in the appellant's house. (CR) confronted the appellant in the presence of the complainant's mother telling him that 'This has to stop', to which he said, 'Nothing's happening' (T 136-7) and after which the complainant burst out in tears (T 138); (b) the complainant's mother and NRE saw the appellant in or on the bed with the complainant on numerous occasions; (c) the complainant's mother saw the appellant go into the bathroom on numerous occasions when the complainant was bathing and confronted him about the inappropriateness of what he was doing; (d) the complainant's boyfriend noticed, indeed he felt the appellant's hand on the complainant's leg, as well as seeing him on two other occasions physically handling the complainant; he also gave evidence of the appellant closeting himself and the complainant in the complainant's bedroom: the appellant 'would frequently take her up into the room by himself for about 10 to 15 minutes' (T 129-30). 69 The Crown added: 22. The evidence of these witnesses is consistent with the complainant's evidence and with each other. There was no suggestion put to any of the tendency witnesses that they had colluded. The complainant also made a complaint to her friend NRE. 70 In my opinion, despite Mr Buchen's submissions, this was a very strong Crown case. 71 The headmaster of the school which the complainant attended gave the following evidence of complaint: (T 114) Q. And on 7 May 2007 did she come and see you? A. She did. Q. Do you have a recollection of what she said to you there in your office? A. She reported to me that her stepfather had been touching her and that she didn't like it and she wanted it to stop. Q. And you then explained to her about the fact that you had to make a notification to DOCS about that report? A. Yes. 72 DOCS then asked the headmaster to determine, more precisely, the nature of the touching. He spoke further with the complainant. His account of their conversation was as follows: (T 114) Q. And following that did you get (C) to come back into (your) office and told her that she had to give you more information? A. I told her that I'd been requested to get more information, yes. Q. And what did she say to you then? A. I told her that I'd (been) asked to find out where she'd been touched and she replied to me she'd been touched on her breasts and on her vagina. 73 The next day (8 May 2007), the complainant was interviewed by the police. 74 During the trial, the complainant's evidence was given by closed circuit television (Criminal Procedure Act 1986 (s 294B(3)(a)). The jury was appropriately warned (T 51). Her evidence in chief was little more than the interview conducted by the police (T 54). The Crown, having served a notice of its intention to rely upon tendency evidence, should have supplemented the complainant's evidence by asking her about each of the incidents which were the subject of the notice. Regrettably, it did not do so. 75 It was the complainant's evidence that the sexual assaults occurred on a weekly basis from the time she was 13 years old. They did not end until she complained to the headmaster on 7 May 2007. The incidents, the subject of charges, were no doubt selected because they could be associated with particular events, in one case the complainant's thirteenth birthday, and the others by reference to the date of her complaint to the headmaster, they being 'recent'. When cross-examined on certain matters of detail in respect of each charge, the complainant said she could not remember, adding: 'I just block it out'. 76 There appears to be no possibility of honest mistake by the complainant. Either her evidence was substantially true or deliberately false. Vagueness and confusion in her evidence did not necessarily support the view that it was deliberately false. Her confusion and vagueness would have been obvious to the jury and was a matter for them to assess. It may give rise to doubt, but it does not have to. For my part, in circumstances where one incident is said to be much like another, it is unsurprising that aspects of her evidence should be vague or confused. 77 Evidence of the complainant's mother C and of the complainant's friend NE about seeing the appellant in or on the bed with the complainant in the morning, especially combined with the appellant's denial that he did any more than sit on the edge of the bed, was in my opinion highly probative; and again, this was evidence in respect of which there was little if any question of honest mistake. Although the complainant did not explicitly address this issue, her evidence did generally support this evidence, especially in that the last incident of which she gave evidence occurred in the morning, and the complainant also said "normally I'm half asleep when he comes in". 78 Further strong support to the Crown case was provided by C's evidence of the appellant spending time in the bathroom when the complainant was in there, and by the evidence of CR. Again, in relation to the latter particularly, there could be no question of honest mistake. 79 The issue then is, do I consider that "no substantial miscarriage of justice has actually occurred"; and it raises for decision the question of whether, on my own assessment of the evidence, making due allowance for the natural limitations of proceeding on the record, the appellant was proved beyond reasonable doubt to be guilty of the offences: Weiss at [41]. That task is to be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict: Weiss at [43]. However, it must also be taken into account that the verdict was returned after a summing up which was erroneous in the respect identified above. One question which is relevant to this task is whether the error in question would, or at least should, have had no significance in determining the verdict that was returned by the jury: Weiss at [43]. 80 In my opinion it is clear that, in respect of at least most of the matters relied on as tendency evidence, the failure of the trial judge to give the required directions had no significance. 81 In my opinion, there is no possibility that, in finding the appellant guilty of the offences charged, the jury were not also satisfied beyond reasonable doubt that the appellant was on many occasions seen in or on the bed with the complainant in the morning, as described by the complainant's mother C and her friend NE: the nature of the incidents described by them so closely conforms to the complainant's evidence, including her evidence of counts 4 – 7, that I see no possibility that the jury would have been satisfied beyond reasonable doubt of the offences charged yet not satisfied beyond reasonable doubt of the incidents described by C and NE. And if the jury were satisfied beyond reasonable doubt of those incidents, in my opinion there is no possibility that they were not also satisfied beyond reasonable doubt that the appellant spent time in the bathroom when the complainant was there, this also being evidence given by the complainant's mother, whose evidence concerning the appellant being in the bed with the complainant they have accepted beyond reasonable doubt. 82 In comparison with these matters, in my opinion RR's evidence concerning the trampoline incident and the complainant sitting on the appellant's lap, and JE's evidence about the message from the appellant, were of minimal significance: the latter two at least were highly equivocal, and in my opinion there is no possibility that some credence, short of satisfaction beyond reasonable doubt, given to these pieces of evidence would have contributed to the finding beyond reasonable doubt of the guilt of the appellant. 83 The one piece of evidence in respect of which there is a remote possibility that the jury may have given weight to it, without being satisfied of it beyond reasonable doubt, is the evidence of CR concerning the boxer shorts incident. This was evidence which, if accepted, was highly probative; and particularly where neither the complainant nor her mother gave evidence about it, it is remotely possible that the jury may not have been satisfied beyond reasonable doubt of its occurrence, yet given some credence to it that contributed to their satisfaction beyond reasonable doubt of the commission of the charged offences. However, in my opinion this possibility is too remote to support the view that the trial judge's error had any significance in determining the jury's verdict. This again was a piece of evidence with no possibility of honest mistake. In cross-examination, CR accepted that she was a friend of C and of the complainant; and it was suggested to her (and denied) that she was making the statement in order to try to assist the complainant. However, the plausibility of this suggestion was not further supported. The possibility that the jury gave some credence to this evidence, falling short of satisfaction beyond reasonable doubt, and nevertheless used such credence to support their finding beyond reasonable doubt of the commission of the offences, is in my opinion remote in the extreme. 84 In my opinion this is a case where it can and should be concluded that the trial judge's error had no significance in determining the verdict. Also, having independently assessed the evidence, and taking account of the jury verdict, my determination is that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdict; and I am satisfied that no substantial miscarriage of justice actually occurred. Nor, in context, was the misdirection so fundamental that the appellant was deprived of a trial according to law. Conclusion 85 I propose that the appeal be dismissed. 86 KIRBY J: I agree with Hodgson JA. 87 WHEALY J: I agree with Hodgson JA. ********** 03/12/2010 - spelling of counsel's name corrected. - Paragraph(s) 51, 52, 61, 62, 63, 64, 66, 70 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.