New South Wales Court of Criminal Appeal CITATION: KTR v R [2010] NSWCCA 271 HEARING DATE(S): 25 May 2010 JUDGMENT DATE: 3 December 2010 JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 132; Fullerton J at 151 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - whether the trial judge erred in admitting evidence of the violent behaviour of the offender over a period of time and failed to give the jury adequate instructions regarding this evidence in sexual assault cases - whether there was a miscarriage of justice in relation to the Crown Prosecutor's address - where violence by offender may explain the acquiescence and failure to complain by victims of sexual assault - application of rule 4 LEGISLATION CITED: Evidence Act 1995 CATEGORY: Principal judgment HML v R (2008) 235 CLR 334; [2008] HCA 16 Hoch v The Queen [1988] HCA 50; 165 CLR 292 House v The King (1936) 55 CLR 499 Leonard v R (2006) 164 A Crim R 374 R v DDR [1998] 3 VR 380; (1997) 99 A Crim R 327 CASES CITED : R v GAE (2000) 1 VR 198 R v JDK [2009] NSWCCA 76 R v Livermore (2006) 67 NSWLR 569 Smale v R (2007) NSWCCA 328 Tully v R (2006) 230 CLR 234 Wilson v The Queen (1970) 123 CLR 334 PARTIES: KTR (appellant) The Crown FILE NUMBER(S): CCA 2008/6655 COUNSEL: S Buchen (appellant) N Noman (Crown) SOLICITORS: Legal Aid Commission of NSW (appelant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/6655 LOWER COURT JUDICIAL OFFICER: R A Hulme LOWER COURT DATE OF DECISION: 12 December 2008 IN THE COURT OF CRIMINAL APPEAL 2008/6655 McCLELLAN CJ at CL SIMPSON J FULLERTON J FRIDAY 3 DECEMBER 2010 KTR v R Judgment 1 McCLELLAN CJ at CL: The appellant was convicted following a trial with a jury of 15 counts relating to various sexual offences allegedly committed against his two stepdaughters between 1979 and 1982. The evidence was received over 7 days. After deliberating for approximately 2 days the jury returned majority verdicts (being verdicts of 11 jurors to 1) of guilty in relation to all 15 counts. The appellant was sentenced to a total term of imprisonment of 11 years 6 months with an effective non-parole period of 7 years. 2 The first 12 counts on the indictment concerned alleged assaults committed upon the appellant's older stepdaughter KG. The remaining 3 counts concerned the appellant's youngest stepdaughter SK. Both complainants gave evidence at the trial and both were cross-examined. Their evidence was that the appellant engaged in a course of escalating sexual misconduct over a number of years with each of them, progressing from "cuddles" and "fondling" to digital and vaginal penetration and masturbation of the appellant's penis to more serious forms of sexual intercourse (in the case of KG: fellatio, cunnilingus and penile/vaginal intercourse; in the case of SK: penile/vaginal intercourse). The alleged behaviour of the appellant with each complainant had some marked similarities. 3 The indictment contained offences allegedly committed when KG was aged between 12 and 14 years and SK between 10 and 11 years. It was the Crown case that the counts in the indictment were representative being identifiable incidents during a course of offending conduct. Evidence of uncharged sexual acts was admitted as "relationship evidence" described as providing a realistic "context" to the evidence of the alleged offences. In part it was also relied on as evidence of tendency and coincidence. 4 The appellant does not complain about the admission of this evidence. However, evidence was admitted of violent behaviour by the appellant over a period of time. The appellant submitted that the trial judge erred when admitting this evidence and in addition failed to give the jury adequate instructions in relation to it. The evidence 5 Before considering the particular grounds of appeal it is necessary to understand the evidence tendered by the Crown to provide the context in which the evidence of violent behaviour by the appellant was admitted. 6 The appellant married MW in 1974. MW had three children from a previous marriage: KG who was aged 7 in 1974, SK who was aged 4 and SR who was aged 2 at the time of the marriage. MW also had an adopted son DR who was aged 7 at the time. The appellant developed a paternal relationship with MW's children and their surnames were changed to his by deed poll in 1978. The evidence of the complainant KG 7 KG gave evidence that the appellant used to lie on the lounge watching television in the lounge room. There was a kangaroo skin rug on the lounge. She regarded it as a treat to lie on the lounge with him under the rug; she was allowed to stay up and watch television with the appellant while on the lounge. In the first stages this was "cuddle time". After 6-12 months the appellant progressed to engaging in sexual activity. Initially he would touch her over her clothes but it progressed to touching underneath her clothing. She would be wearing a nightie and underpants. He touched her on the chest but more towards the bottom half of her body including her vagina. He also got her to touch his penis, initially over his clothing but it progressed to him undoing his fly and exposing his penis and having her touch it. He said that this was their "special time together" and she understood it was not to be discussed. She said she loved the attention at first, like any little girl would but she also felt it was wrong and she could not say or do anything about it. The appellant would give her 50 cents to come and give him a cuddle on the lounge. She did not tell anyone what the appellant was doing to her because she was too scared. 8 KG described the sexual touching on the lounge progressing to the point where the appellant was digitally penetrating her vagina. When these things were happening on the lounge it was when she and the appellant were alone; her mother was at work and the other children had been sent to bed. 9 KG gave evidence that the appellant was violent. She recalled getting beatings with a rod or cane for slight infractions. She was hit on the back of the legs and the backside. Sometimes she was hit on the hand with the rod. She saw him use a leather strap or the rod on her siblings. She did not recall her younger brother SR being hit but recalled the appellant regularly beating SK and said that DR got beatings all the time. The appellant drank alcohol every day, drinking long necks, stubbies and sometimes spirits. He was emotionally abusive to her mother, who consequently had no confidence. Her mother had a number of nervous breakdowns because of the emotional abuse and her mother was in hospital for a nervous breakdown when Counts 9 and 10 occurred. 10 The family went on a holiday to Sussex Inlet in late December 1979 to early January 1980 with family friends and stayed in a cabin. One day she was in Swan Lake with the appellant. The lake was fairly shallow for about 50 - 100 metres. The appellant swam to where she was in the lake and touched her over her swimwear and then under her swimwear with his fingers and moved his hands over her breasts, then he would throw her in the air or she would dive off his shoulders and when she was in the water again he would touch her again. 11 A couple of days after that, KG got badly sunburnt and had to stay indoors for the day while her mother and the other children went shopping. She was in their cabin reading a book and the appellant came in, shut and locked the door and closed the louvres. He laid a towel across the bed and asked her to lie on it. He removed the bikini bottoms she was wearing and then performed oral sex upon her. She said he sucked her vagina for some 4 to 5 minutes and also "used his fingers" on her (Count 1). He took some Vaseline from a jar near the bed and rubbed it on the outside and inside of her vagina, got her to get on her hands and knees and inserted his penis into her vagina from behind. He moved his penis in and out and ejaculated inside her (Count 2). 12 Around the middle of 1980, a few months before she had an operation on her hand, KG was off school for a day, she was not sure why, and it was just herself and the appellant at home in Lithgow. He told her to go into the main bedroom with him. He did not say why. He told her to undress and he helped her to undress. He then removed his own clothing and when he was naked she saw that he had an erection. He said that they were "going to try something different today". He got her to suck his penis and he held the back of her head so that she could not move away. She was scared, anxious, and afraid of what he would do if she refused. He then pushed her onto the bed and sucked on her vagina for 3 or 4 minutes. He then rubbed Vaseline - which was on the bedside table - on the inside and outside of her vagina and had penile/vaginal intercourse with her. She told him that she didn't want to do this but he did not stop. He continued for about 5 to 10 minutes before he removed his penis and ejaculated on her stomach. He said to her that this was their secret and she was not to tell anyone. KG said that she did not tell anyone about this because she was scared. (Count 3). 13 In early August 1980, KG accidentally sliced her finger and, after microsurgery, required physiotherapy which commenced immediately after her leaving hospital. The appellant took her to physiotherapy at Katoomba for the majority of her appointments, which were usually between 8am and 8:30am. Returning from the physiotherapy one day, the appellant pulled over and stopped on the side of the road at Blackheath near a fish and chips shop. He told her to take her underwear off. He removed a jar of Vaseline from the console and rubbed it on the inside and outside of her vagina. He also unzipped his pants and pulled his penis out. He inserted his fingers in her vagina (Count 4). He then had her rub his penis up and down with her hand until he ejaculated (Count 5). She said that the ejaculate went on his clothes and hand and he used an old coat that was in the car to wipe up. KG said she was then told to put her underwear back on and she was driven back to school. 14 In late September 1980, KG had a physiotherapy appointment later than usual and as a result she did not have to go to school afterwards. The appellant took her to the appointment and they then returned to the home. No-one else was home. About two weeks previously the appellant had bought her some lingerie, which was some panties that were two sizes too small. The appellant told her to go and get undressed and come into the main bedroom. He told her to put the panties on. She was wearing a training bra. She did not go into the bedroom but sat on her bed. She told him that she didn't want to do anything and he ignored her and said "you're coming into the bedroom". She went in because she was scared of him. 15 The appellant took photographs of her with a Polaroid camera with her panties on and also with them off. He then got on the bed and told her to perform oral sex on him by sucking his penis. She did that for 4 to 5 minutes (Count 6). The appellant then had her lie back down on the bed and he performed oral sex on her by sucking her vagina. He also used his fingers (Count 7). The appellant then proceeded to have penile/vaginal intercourse with her. She was on her back on the bed. He put a pillow under her pelvis and inserted his penis into her vagina. This went on for about 5 minutes. He then removed his penis and turned her around so she was on her hands and knees and he then inserted his penis from behind and had intercourse with her until he ejaculated inside her. (Count 8). 16 KG said that when this was happening she was scared, emotional and just did not want to be there. She said she was crying. The appellant threatened her that she was not to tell anyone. She had a shower and got dressed and by the time she got out of the shower he was not there. She looked for the photographs but could not find them. 17 In February or March 1982 MW was in hospital. KG said that every night while her mother was in hospital some form of sexual activity would take place in the lounge room but the main incident she recalled occurred in the bedroom. They had just come back from the hospital and the appellant sent everyone to bed. After about an hour he came and got her out of bed and took her into his bedroom. He took her nightie and underwear off. He then took photos of her again in various poses with his Polaroid camera. She said he was naked and his penis was erect. He then performed oral sex on her and had her perform oral sex on him. He then got the Vaseline and rubbed it on the inside and outside of her vagina and inserted his penis in her vagina from behind with her on her hands and knees. She was on the bed and he was standing beside it. (Count 9). After about 5 minutes he told her to lie on her back and he penetrated her vagina for another 4 to 5 minutes and then withdrew and ejaculated over her stomach (Count 10). KG was then told to put her clothes back on - she did not have an opportunity to shower or clean herself- and go back to bed. 18 The next morning KG got up very early; she had made a decision to tell her mother. She walked up to the hospital but by the time she got there she had talked herself out of it because she was scared of what the appellant would do to her. 19 Sometime in 1982 KG's brother DR ran away from home. DR had some friends who lived at the Vale of Clwyd and it was thought he might be there. The appellant told KG to get in the car because they were going to go looking for DR. They drove to an area near there but the appellant veered onto a dirt track and stopped the car in a sheltered area. 20 The appellant told KG to get into the back seat and to take her clothes off. The appellant told her to perform oral sex on him. She was sitting on the seat facing outwards and he was standing outside. She told him that she did not want to do anything but he said, "You're going to do it" and she did not believe she had a choice so she did it. When his penis was in her mouth he had his hands on her head to control her. This went on for about 5 minutes or a little less. She said she tasted pre-ejaculate and it made her feel sick (Count 11). 21 The appellant withdrew his penis and told KG to get out of the car and lean over the boot. She was still naked. She leaned over the boot and he inserted his penis into her vagina from behind and had intercourse for about 5 minutes (Count 12). He then withdrew, told her to put her clothes back on and get back into the car. She got into the back seat and they drove straight home without looking for DR. KG did not tell anyone about the sexual abuse until she told her husband when her child was 18 months old. The child was born in October 1990. She never told him in detail. About 2 days after telling her husband she telephoned her mother and told her that she had been sexually abused by the appellant. She said she did not go to the police at that time because, although she wanted to, she was too emotional and did not think she could cope with going through the process. In April 2006 KG made a statement to police. She was working for the Federal Police, which had in place support systems such as confidential access to welfare officers and psychologists. KG did not at any time tell her sister SK the specific details of the sexual abuse by the appellant, including that it occurred on the lounge. 22 In cross-examination, KG said that she was aware that about a month after she told her mother, her mother had spoken to SK. SK then told KG that she had also been abused. They had never discussed the details of the sexual assaults upon either of them. KG said her mother had asked her for the details but she refused to give them to her and had no intention of ever telling her. She said neither SK nor MW had seen her statement. 23 In relation to Counts 4 and 5, KG said she was wearing her summer school uniform. The car had bucket seats. There was not normally a jar of Vaseline in the console of the car. They were parked 2 to 3 metres from the road, which was single lane at that point, and down a bit from the fish and chips shop. The car was a red Holden Commodore. 24 In relation to Counts 11 and 12, KG said that the appellant told her to take off her underwear as she was getting into the back seat. She was then naked from the waist down. When he penetrated her vagina with his penis he had sex with her until he ejaculated inside her. He had taken his penis out through the gap in his Y-front underpants and through the zipper of his pants so that he still had his clothing on. When he told her to get back in the car she stayed in the back seat. 25 In relation to the incident when she was in the lake prior to Counts 1 and 2, KG said that the water was chest deep on her; the water was not very deep for about 100 to 150 metres. There were family members on the beach and in the water at the same time. 26 In relation to Counts 6 and 7, KG said the bed was not a waterbed. She agreed there was a waterbed there at some time but not at that time. She did not remember how old she was when the waterbed was there. 27 She denied that the appellant administered corporal punishment to the boys only and not the girls and that it was her mother who used the cane on the girls. 28 She never saw her brother SR on or under the kangaroo rug. The conduct on the lounge under the rug did not continue after the Sussex Inlet incidents. They occurred for about four or five years, after which different kinds of sexual activity occurred until around mid-1983. She was between the ages of 7 and 10 when the appellant digitally penetrated her on the lounge under the mg. 29 KG said that the Vaseline was sometimes in a small container and sometimes came from a larger container. 30 As a general rule, when her mother was working, the children would be in bed by 8:00 to 8:30pm. On occasions the appellant would allow them to stay up until MW came home. 31 KG denied that she entered a writing competition at school on the topic "How good your father is", which she won, the prize being a voucher to a store in Lithgow. She denied that she gave the appellant the voucher and accompanied him to the store where he redeemed it for some clothing . 32 KG gave evidence that the appellant commenced sexual activity with her 6 to 12 months after the appellant's marriage to MW. She described the activity initially as "cuddle time", when the appellant would touch her over her clothes while they lay under a kangaroo skin rug on a lounge watching television. KG alleged that the touching progressed from outside the clothes to touching under her clothes and underwear including her chest, "bottom half" of her body and vagina culminating in digital penetration of her vagina. She said that the appellant occasionally gave her money (50 cents) and also gave her special gifts, including a Polaroid camera and a signet ring. She said that the sexual activity occurred in the evenings when her mother was at work. She said that she initially welcomed the attention but came to understand that "it was the sort of attention that felt wrong. I couldn't say or do anything about it". She said that these activities occurred at least weekly. 33 KG also gave evidence of specific events which constitute the individual counts in the indictment. They include touching of her during a family holiday at Sussex Inlet, penile/vaginal intercourse at home, cunnilingus, fellatio and penile/vaginal intercourse, the latter occurring at home and in other places. On occasions the appellant allegedly took pornographic photographs of KG including an occasion when she was required to perform fellatio on him. During the latter event KG said that she felt "scared, emotional – I just didn't want to be there". She said that the appellant "actually made the threat that it wasn't to be told to anyone." 34 On an occasion in February to March 1982 when MW was in hospital KG alleged that the appellant engaged nightly in sexual activity with her. She alleged that on one occasion the appellant undressed her, took pornographic photos of her, engaged in fellatio and cunnilingus and after applying Vaseline had penile/vaginal intercourse with her in different positions. 35 KG gave evidence that after this incident she "made a decision to tell mum" but then "talked myself out of it … I was scared of what he would do to me." 36 Count 11 charged the appellant with sexual intercourse without consent with a person under the age of 16 years. The allegation related to an occasion when in 1982 DR ran away from home. This occurred following an altercation which culminated in DR pushing MW to the ground. KG gave evidence that the appellant took her with him in his car to look for DR. She said that the appellant parked the car "in a protected area" off the road and demanded oral sex. She said "I told him again I didn't want to do anything" she said that the appellant replied, "You're going to do it." She said in her evidence that she "didn't believe I had a choice." She alleged that she was required to perform fellatio on the appellant following which the appellant had penile/vaginal intercourse with her from behind while she leaned over the boot of the car. The evidence of the complainant SK 37 SK said that she was sexually molested by the appellant on the lounge, always under the kangaroo skin rug. It started off with the appellant just being friendly. They would be laying on the lounge, both on their sides, with him behind her. At the start it was just friendly, a fun time. She was allowed to stay up late while all the other children were in bed. She was allowed to light his cigarette and also to open his beer and have a taste. Initially it was just cuddling but as time went on he started rubbing her chest outside her clothing and also touching her on the outside of her underpants. This happened many, many times. Then it became more sexual where he would feel under her nightie, on her skin and also down her underpants he would be feeling her and touching her vagina. It progressed to him rubbing her vagina and inserting his fingers. As they lay together with her back to him she could feel his erect penis pressing against her. She was terrified and always tense when this happened but she was not game to move or to say anything. He used to say things to her like, "Just relax, it's okay, it won't hurt, just lay still, " and other words to that effect. He told her that the times he let her stay up after he sent the other children to bed and allowed her a sip of his beer and to light his cigarettes, was their "special time" or words to the effect of "it's our time together as father and daughter." The cuddling and non-sexual contact went on for about a year and became more frequent as it progressed to sexual touching in 1978, when she was in third class. 38 At times the appellant would kiss her goodnight when she was under the rug in the lounge room. It was an adult, passionate kiss with an open mouth and with his tongue in her mouth. 39 She said the appellant initially was an okay father but as time went on he grew into a violent, lazy man. He was always off work, sick and did not do any work around the house. He was physically violent by hitting the children across the hands with a dowel from the dryer or used a thick, leather strap to belt them around the thighs and buttocks. SK was terrified of him and on one occasion when she had done something wrong she had hidden underneath her bed behind toys and boxes for two hours until her mother got home and had wet her pants because she was so terrified. She said the appellant flogged DR, sometimes for no reason, with the strap with extreme force so as to leave welts, while yelling at him. 40 In 1980 SK was dux of fifth class and MW and the appellant bought her a pair of jeans as a reward. Shortly before she was given the jeans, on a night in 1980, MW was at work and the rest of the children had been sent to bed. The appellant made her stay up and she was lying with him on the lounge under the kangaroo skin rug. SK said it seemed different this time in that the appellant seemed rushed. There wasn't the time of him being nice, by letting her change the channel on the TV, light his cigarette or other things and there wasn't as much fondling. She was wearing a nightie and underpants and lying with her back against his front. He took her underpants off and had pulled his own underpants down. He had an erection. He grabbed her hand and placed it on his penis and made her masturbate him (Count 14) with his hand over hers. When the appellant took his hand away she let go but he put it straight back on his penis, saying, "No, leave it there". 41 When this was happening she was lying more on her back and the appellant was on his side. He was using his other hand to touch and penetrate her vagina with his fingers going in and out (Count 13). She said this did not go on for very long because she was so tense; she said she was terrified, scared and tense. She did not know what to do or to say. The appellant said, "Relax, this won't hurt", or words to that effect and proceeded to get up and climb over her. She thought he was going to get off the lounge. He said, "Keep your legs open ". She was on her back at this stage and he was in a kneeling position over her. He had one leg down on the floor and the other on the lounge. He told her to keep her legs apart and said "Now just relax, it won 't hurt. He attempted to penetrate her vagina with his penis. He couldn't the first time and he tried again. She was saying, "Stop, it's hurting, it's hurting". He replied, "It'll be alright, just relax". He then tried again and succeeded in penetrating her (Count 15). She was yelling out, "Stop it, stop it, it hurts, stop it". His penis was inside her for a short time, moving in and out, and then all of a sudden he stopped, withdrew from her and said in a frustrated tone, "Go to bed now". She said her vagina was hurting and it was sore for at least all of the next day. 42 After that incident there were further occasions of sexual activity but the appellant reverted to touching with his hands and digitally penetrating her. It became less frequent because she deliberately became more active away from the home with sport, athletics, mountain climbing, and spending time with friends in order to avoid being at home. When she was home she started going to bed earlier, even if it was nearly daylight, to avoid being the one to be kept up. The sexual activity ceased when the appellant and her mother separated in 1983. 43 Once the appellant was out of their lives, family life became normal. SK later told people that she had been abused as a child but did not go into detail. She thought she was strong enough to cope with it. She said she kept busy and pushed it to the back of her mind. In 1994 she received a phone call from her mother, who told her that she had received a phone call from KG telling her that she had been abused. MW asked her if the appellant had abused her and she told her yes and she had dealt with it. SK then rang KG and told her that the appellant had also abused her as a child. They did not discuss details. 44 After MW had learned of the abuse, SK telephoned Roslyn [Nolte], the appellant's then wife and told her that he was a child molester. She warned her never to let any of her nieces or female relations sleep there. On one occasion Ms Nolte said "Why should I believe you". 45 SK also phoned the home and the appellant answered the phone. She called him "a sick bastard" and "a child molester." She said she made many calls to him and verbally abused him then hung up. 46 SK made a statement to police on 17 July 2006. She had kept busy over the years but a friend had been going through a hard time, SK was depressed, and a sentence from one of her friends made it all come back to. KG phoned her at one stage and told her she had made a statement to police, SK said "that's weird because I've got an appointment with a detective to make a statement about the incidents the following week." 47 In cross-examination SK denied telling KG or their mother any details. She had not shown her statement to either of them. 48 She said she saw the kangaroo rug in other rooms, it was used as a sick blanket. It was in the lounge room on a lot of occasions. 49 She agreed that her mother and the appellant had a waterbed but did not remember when it came into the house. 50 She denied that her mother administered discipline to the girls and the appellant administered discipline to the boys. She recalled DK was often in trouble and ran away from home for two days on one occasion. She went with her mother to look for him that time. 51 She said that when she was five years old all the children helped the appellant and his family to paint the house belonging to an elderly relative of his. 52 SK vaguely remembered that the appellant had his leg in plaster for a period of time but did not know if the sexual abuse continued while he had his leg in plaster. 53 SK gave evidence which in general terms reflected a progression of sexual activity similar to the evidence given by KG. SK said that the appellant progressed from "cuddling her" under the kangaroo skin rug on the lounge to touching over and then under her night dress leading ultimately to digital penetration. She complained that the appellant had given her "adult" kisses and she said that she was also given a Polaroid camera and signet ring as gifts. 54 SK said that when she was in Year 3 at school the appellant digitally penetrated her vagina while they were lying under the kangaroo skin rug. When this happened she said the appellant said "Just relax. Do you like it? You'll enjoy it." SK said that she was terrified and did not know what to say – "So I never said anything." 55 SK gave evidence of other incidents including being required to masturbate the appellant, digital penetration and penile/vaginal intercourse. The judge rules the evidence of violence to be admissible 56 The issue of whether the prosecution's evidence of violence perpetrated by the appellant on the complainants and other members of the family was admissible was raised before the jury was empanelled. It was submitted that the evidence was not relevant, there being no suggestion that any of the sexual acts were committed in response to threats or actual violence on the part of the appellant. The Crown pressed the evidence on three bases: It was firstly submitted that it explained the complainants' acquiescence, secondly it explained the complainants' failure to complain to their mother in a timely manner and, thirdly, in relation to count 11, was relevant to prove a lack of consent with respect to KG. At the time the admissibility issue was being considered the Prosecutor indicated that it was expected that evidence would be given that the appellant threatened KG with violence if she did not comply with his demands in relation to a number of counts or, in relation to one count, if she told anyone about their "secret". 57 The trial judge in an ex tempore ruling determined that the evidence should be admitted. His Honour's reasons are captured in a portion of the transcript containing an exchange with the appellant's trial counsel: "HIS HONOUR: Well Mr Walsh it does seem to have that relevance in terms of both the evidence of the complainants in what they say as their acquiescence in this conduct they say the accused perpetrated upon them and I suppose implicitly their failure to complain about it that they were in fear of him because of violence perpetrated against them and violence they understood he was prepared to perpetrate against others. Is there anything further you want to say about the matter? WALSH: Well your Honour I mean I can understand for instance when the Crown raises the matter of 'don't tell anyone or I'll hurt you' that sort of thing I mean I can understand that being admitted because it's part of the scenario of don't tell anyone. But the other matters of violence they're not related and there's no evidence they're related to the sexual matters your Honour. HIS HONOUR: But to make a threat such as 'don't tell anyone or I'll hurt you' has added force if the complainant was aware that he had the capability of doing so and was prepared to do so. WALSH: Well that goes to her not telling anyone and - HIS HONOUR: Yes WALSH: --I understand that, that certainly does. But doesn't go to the commission of offences. HIS HONOUR: Well to the acquiescence particularly in relation to the s 61D count. WALSH: Yes. Your Honour I've raised it your Honour-- HIS HONOUR: Yes. WALSH: --and raise the objection it's a matter of course as always is for your Honour. HIS HONOUR: I concede it does have a potential for prejudice but I'm given to understand the nature of the Crown case I am of the view that that is the probative value of it does outweigh that prejudice so I'm against you Mr Walsh." 58 When opening to the jury the Crown Prosecutor raised the expected evidence of threats of violence by the appellant. He said: "You will also hear evidence that this accused was a violent man to his children and also to his wife. You will hear evidence that at times when these sexual activities took place he would threaten the children or the girls with violence. KG will tell you that the accused came into that cabin, locked the doors and secured the windows. He told her to take her bikini off and she did so. She, after initially resisting – he said, 'Do as you're told or you will be hurt.' He took her bikini off and then he performed oral sex on her vagina. That's count 1. The circumstances involving count 3 relate to her being at home. He penetrated her vagina with his penis and he threatened her if she told anyone he'd hurt her. They went out past the Vale of Clwydd. He told her to get into the back seat and to get undressed. She resisted. He threatened to hit her if she didn't. He forced her to suck his penis and that is count 11 on the indictment. … you will hear evidence from DR, the adopted brother who is now 41 or 42, as to the assaults that took place on him, that there was a use of a leather belt. The girls will tell you about the violence, that he used to belt them with a piece of dowelling which was part of an old drying cabinet … you will hear evidence that he would belt the girls as well as DR with that item." 59 As it happens the evidence anticipated by the Crown that the appellant had threatened violence if his demands were not complied with did not eventuate. The complainants did not say in their evidence that they were threatened with violence if they did not comply with the appellant's demands. Furthermore, the appellant's counsel did not challenge the complainants' credibility on the basis that they acquiesced in performing sexual acts or because they failed to complain to their mother at the time the offences were committed. However, the appellant's counsel did not complain that the trial had miscarried because the evidence did not follow the course anticipated in the Prosecutor's opening. No request for a particular direction was made and there was no application that for this reason the jury should be discharged. Evidence of violence given by KG 60 During the course of KG's evidence she referred to alleged violence by the appellant on a number of occasions. She said that the appellant was violent towards herself and DR, She said, "I recall seeing him hitting my sister. I don't recall in any detail about my younger brother S but certainly my sister would quite regularly get those same beatings." She said that the appellant "emotionally abused" her mother and "put her mother in a place where she had no confidence." 61 She was cross-examined about these allegations when the following exchange occurred: "Q: In relation to the discipline that was administered (the appellant) was strict with discipline wasn't he? A: Very strict. Q: And from time to time he might administer punishment to the boys by either a smack with his hand or with the belt on their backside or their legs? A: Not just the boys, there was us girls as well. Q: Well I put it to you he never administered corporal punishment to you or your sister? A: I'm telling you he did. Q: It was your mother who did that? A: No my mother never disciplined us. She disciplined us when it was required but she never belted us. Q: You gave some evidence about a rod or a cane? A: Yes I have. Q: (The appellant) never used a rod or cane to discipline anyone did he? A: Yes he did. Q: It was your mother who used the cane to do the disciplining? A: No she did not. Q: Well I put it to you that (the appellant) was not violent in the house as you would suggest? A: I put it to you that he was. Q: Sometimes he'd be cranky? A: He'd be more than cranky. Q: You see you treated him as your father is that right? A: Initially yes. Q: And right through the time that he was there? A: Towards the end definitely not. Q: You see the relationship between (the appellant) and your mother got nasty at the end didn't it? A: Yes it did. Q: Because (the appellant) went off with another woman didn't he? A: That was part of it yes. Q: And that woman was a friend of your mothers at that time? A: I believe so yes. Q: And there was a lot of bitterness at that time in relation to (the appellant) leaving your mother wasn't there? A: I don't know that's the true circumstance – yeah there – there was bitterness on a lot of part. Q: Yeah including your part? A: No I was happy to see him go. Q: You have retained a bitterness towards (the appellant) because of the fact that he walked out on your mother and went off with another woman? A: I retained bitterness for that man because of what he did to me as a child not because my mother kicked him out of the house." 62 During the course of her evidence she told of the occasion when the appellant broke her mother's nose. She said that on one occasion she saw blood in the bathroom and saw her mother's face which was red and her broken nose was starting to swell. At the point at which the matter was first raised his Honour queried whether it was relevant. KG did not say that she saw the event and her mother apparently told her that she had fallen over. Ultimately his Honour rejected this evidence and gave the jury firm instructions to ignore it. The instructions were, in my view, adequate in the circumstances. 63 At the end of her cross-examination KG was challenged and it was put to her that she had tried to paint the appellant as a serial sex offender. She responded "I haven't painted him as that. He has painted himself as that." 64 She was then asked about matters of violence: "Q: And you've tried to paint him as a violent man? A: He is a violent man. Q: And I put it to you that he never committed any sexual offences upon you or with you? A: He committed these offences. Q: And he was at never any stage violent toward you? A: He was." The trial judge intervenes 65 After KG's evidence was complete the trial judge took up the issue of the evidence of uncharged sexual acts and the appellant's violence, including the evidence of injury to MW's nose. His Honour said: "HIS HONOUR: Ladies and gentlemen, just before the Crown calls the next witness, there's something I want to say to you briefly and I'll be saying something more to you about it in my summing up at the end of the trial. The Crown has led evidence not only of specific sexual acts that it says make out the various charges so far relating to this particular witness but the Crown has also led evidence of other sexual acts that the Crown alleges occurred between the accused and this complainant so far. That evidence of other acts is placed before you for quite specific purposes. As I understand the Crown case, the Crown says that notwithstanding those other acts aren't the subject of charges that the accused faces, they go to establish on the Crown case a tendency that the accused had to act in a particular way, putting it briefly to have an unusual sexual interest in his stepdaughters. I'll be saying something quite precise to you about it in my summing up to you but I just want to say that to give you an indication of the relevance of the evidence of those other acts. It's also there to place in context the particular acts that are the subject of the charges. You might wonder if you heard just the evidence of the specific incidents that the Crown relies upon for the charges how they might be simply occurring out of the blue, seemingly. But if you take into account on the Crown case the evidence that this was an ongoing series of behaviour and what the Crown has charged the accused with are just the specific ones that can be identified, taking into account the overall evidence you can see the context in which those specific incidents occur. Now again I'll be saying something more about that in my summing up. Part of the Crown case also as I understand it is this, that so far the complainant – as we call the alleged victim in the matter, the complainant – KG as I understand the Crown case acquiesced with the accused in what he was doing to her and didn't complain about it at the time and so forth because she was in fear of him – in part, at least – and that therefore indicates the relevance of the accused being somewhat violent – I would take the Crown to put it – in terms of his disciplining of the children and so forth. If he was overbearing in the way he disciplined the children you might, I understand the Crown to be saying, more readily accept why the children would be afraid to complain and allow him to do the things that the Crown alleges. So that's the relevance of this evidence of him being a man who was – I suppose, to use one term – heavy handed in corporal punishment. You've also heard evidence that there was an occasion where there was an injury occasioned to MW's nose and I think KG said that was in around 1976. As the evidence has emerged, that's not relevant. She asked her mother about it after she saw blood in the bathroom and saw the injury to her mother's nose and her mother told her that the injury occurred when she slipped over or fell or tripped or something like that. So as far as KG was concerned at the time – at the time these alleged sexual events were going on – she didn't have any thought that the accused was responsible for that. Now, it would have relevance if she thought the accused was responsible for it because it would add to her perception of the accused being a man prone to violence, but that's not her evidence. Her evidence is that her mother gave her an explanation for it that had no mention of the accused being responsible for it and so she simply, it would appear, just accepted at the time what her mother told her. Her mother might have told her something else years later, but that doesn't matter. So that evidence about what happened to the mother's nose is, as it's turned out, is completely irrelevant so I must stress to you in the strongest possible terms to put it completely to one side. It's quite a discrete part of the evidence and I think it would be fairly easy for you simply to put that to one side, forget about it, it's not relevant. The other things I've spoken of that KG said the accused did in terms of disciplining the children and so forth, that's relevant and you can take that into account but that specific incident of something happening to the mother's nose is completely irrelevant, so I direct you to put it to one side and just forget about that." Evidence of violence given by SK 66 SK also gave evidence during which she said that the appellant was in the early days an "okay" father. However, she said "he grew into a violent, lazy man." She said that he was "always off work sick" and that her mother and the children would have to do all the work around the house. SK said that she had to make the appellant's lunch when he was "actually going" to work and because her mother was a shift worker she had to cook the evening meal. She said that while others did the housework the appellant "just lay around on the lounge." She was asked the question "what other aspect of his behaviour did you observe and the following exchange occurred: "A: That he was violent. Q: And what do you mean by that? A: He was violent even in his – the way he spoke to us. If anyone did anything wrong, any of us kids did anything wrong he would actually strike out at us – and violently abuse us as well. Q: When he was violent toward you was your mother there? A: No. Q: Did he ever be violent towards you when your mother was there? A: No. Q: When you say he was violent, what did he do? A: He would either cane us or hit us across our hands with a dowel from our dryer or use a thick, leather strap and belt us across our – or well actually wherever he could belt us, but usually around the thighs and buttocks. Q: What would you have done wrong to cause him to do that? A: Anything or nothing. There was a time where someone had done something, one of us kids, and he actually lined us up in the lounge room, told us that someone had to own up to. If one of us did not own up to it we would all get the cane. He stood there in front of us with the wooden dowel and he repeated that question again and no-one stepped forward so myself and my brother, my older brother DR, for some reason both of us stepped forward, not that I had done anything but just for the sake of stopping the – stopping the abuse that we were getting and DR and I both got the cane more than once and if you flinched, you got another strike of the wooden dowel. Q: In relation to the belt or the strap, where were you struck with it? A: Usually across the thighs, back of the thighs and buttocks, backside. Q: Did he ever raise his voice to you? A: Yes. Many times. Q: How would he do that? What tone would that be? A: In anger. Q: Sorry? A: In anger or-- Q: Was it loud or soft? A: Yes it was very loud. Q: How did you feel about it? A: I was terrified of him. Q: Do you remember a time when you had done something wrong and you went into your bedroom? A: Yes. Q: What did you do? A: I ran and hid underneath my bed in my bedroom, behind toys and boxes and I was there for two hours, until Mum got home but during that time I was so terrified that I had actually wet my underpants." 67 During the course of her evidence she was asked whether she had ever seen the appellant "belting D." She respondent "yes" and was then asked the following series of questions: "Q: What would be the nature of the belting? A: There would – would not be a reason at the time or he would be a little bit late and he would get into an argument with DR. And he flogged him with the strap. Q: What sort of force was used? A: Violently. Like I don't know how to describe it. With extreme force like-- Q: With extreme force? A: He left marks, welts. Q: Left welts, whereabouts did he leave the welts? A: On his legs. Q: Was he saying anything when he was belting him on the legs with all his force? A: I can't recall exact words but he did – he was always – he did say stuff to DR while he was doing it, that he was a-- Q: Was he yelling or talking quietly? A: Yelling." Further consideration of KG's evidence about MW's broken nose 68 In the course of KG's evidence the proceedings were interrupted and defence counsel raised with the trial judge the evidence of MW's broken nose. Counsel said that in light of the trial judge's previous ruling with respect to the evidence of KG relating to this issue he now anticipated that MW would not give evidence about it. His Honour responded that he thought that this would be the case. Counsel then asked that the jury be discharged. It was submitted that the nature of the evidence was so prejudicial to the appellant that, notwithstanding the warnings given by the trial judge, it would have an unfairly prejudicial effect on the minds of the jury. 69 His Honour rejected the application indicating that in his view the nose issue was a discrete body of evidence which could be appropriately dealt with by the directions which he had given. The evidence of MW 70 MW gave evidence. She was asked how she would describe the appellant's personality and she said he was a "very domineering person, a bully, a demoralising (sic), he demoralised all the time, he took my self esteem away and I was just living on, on adrenalin as I had nothing else to only for the children." 71 Later she was asked: "Q: You see [the appellant] wasn't a violent man was he? A: I beg your pardon. Q: [The appellant] was not a violent man? A: I still – I couldn't understand. Q: [The appellant] was not a violent man? A: Yes he was a violent man." 72 Somewhat surprisingly, defence counsel raised the issue of the appellant fracturing MW's nose. Counsel suggested to MW that the appellant never did that to which she replied, "That's not correct." The following exchange then occurred: "Q: I put it to you that he never struck you ever? A: Yes he did. Q: You only told the police about the instance where you say your nose was broken only last Friday didn't you? A: Yes. Q: You see [the appellant] was quite a strict disciplinarian in the house with the children wasn't he? A: Yes. Q: And he was sometimes cranky? A: Well most of the time yes. Q: But the administering of corporal punishment was such that it was you who administered the punishment to the girls? A: That is not true. Q: And it was [the appellant] who administered the punishment to the boys? A: Yes he did but – he did belt DR. Q: And he did use a strap or belt? A: Yes. Q: To administer discipline to the boys? A: Yes. Q: That was in the nature of using the belt around the backside or the back of the legs? A: (no verbal reply)." The evidence of MW's adopted son DR 73 DR also gave evidence. He was asked: "Q: What do you say about [the appellant's] personality and how did he treat you? A Not very good. Q: Can you tell us what he did? A: Got a lot of beltings when I was young. Q: How often would you get a belting? A: I can't recall. It was quite often though. Q: What sort of beltings – what would you have done to cause you to be belted? A: Maybe misbehaved, woke him up from his shift work or something like that. Q: These beltings could you describe what they were like? A: With a lot of force. Q: What was used? A: A leather belt. Q: Was it doubled over? A: Yes. Q: Where were you struck? A: Backside and the legs from what I recall. Q: What sort of force was used? A: Quite a bit, a lot of anger put behind it. Q: How was the belt raised? A: Well I guess behind your head. Q: So he had his hand you say level with your head you just indicated? A: Yeah. Q: Like that? A: Yeah. Q: Can you just show the jury how he-- A: He'd probably bring his arm way back. Q: And bring it down upon-- A: Yeah. Q: How was the belt, I think you said it was doubled? A: Yep. Q: The buckle part of it was where? A: He'd be holding that. Q: How wide was the leather belt? A: Probably about two-and-a-half inches wide. Q: Did it hurt? A: Oh my word. Q: Sorry? A: My word. Q: Leave any marks? A: Yes it would for a while yeah." 74 He was asked about the occasion when he ran away from home. He said this occurred when he had an argument with his mother during which he said the appellant "got out of bed and chased me up the road and I never went back home for quite a while." He said that he stayed at a friend's place for about 2 weeks. He was ultimately located by the police and returned to his home. The appellant's denial 75 The appellant gave evidence at his trial. He denied engaging in any sexual misconduct with his stepdaughters. He denied purchasing or possessing Vaseline, buying the complainants special gifts or any of the specific sexual acts which he was alleged to have committed. 76 He accepted that he "administered the discipline" to the boys but denied that he ever administered it to the girls. He said "I've never hit them girls in my life." 77 He said that it was the function of MW to discipline the girls although he was responsible for disciplining the boys. 78 With respect to the boys he said that he used the hand or the strap on the backside. The evidence of SR 79 Evidence was also given by SR who was called by the appellant. He said that when the children were in trouble punishment was administered by both MW and the appellant. He said that the appellant used a "leather strap on us" and his mother used an implement which was "like curtain rod out of a tall clothes dryer, the old clothes dryers that had curtain rods hanging in them to hang the clothes on." 80 He said that he never saw the appellant using the rod and did not remember either his mother or the appellant hitting the girls with the rod or the belt. He said that the appellant would use a belt and hit him on "the bum or back of the legs." He gave a detailed account of how the appellant would use the belt. 81 The appellant initially filed two grounds of appeal. During the hearing the court granted leave to the appellant to file a third ground. The grounds of appeal are accordingly as follows: 1. The trial judge erred by admitting evidence of violence on the part of the appellant. 2. The directions concerning evidence of violence on the part of the appellant was inadequate. 3. The trial miscarried because the Crown Prosecutor's address invited the jury to use the evidence of violence for impermissible purposes. Ground 1 82 As I have previously discussed, the appellant objected to the tender of evidence concerning the violent behaviour of the appellant. The issue was raised before the jury was empanelled. When the appellant emphasised that the evidence did not suggest that any of the sexual acts were committed in response to threats or actual violence on the part of the appellant, the Crown submitted that it should nevertheless be admitted because it explained the complainants' acquiescence and failure to complain to their mother. Furthermore, it was submitted that it was relevant to the issue of lack of consent, an essential element in count 11. The trial judge effectively accepted the Crown's submission. 83 The appellant contends that it was erroneous to admit the evidence which has occasioned a miscarriage of justice. The submission on appeal was far more sophisticated than the argument put to the trial judge. Furthermore, contrary to the expectation of the Prosecutor, the complainants did not give evidence that they had acquiesced in the alleged sexual acts because of the appellant's violence or threats of violence. They did say that the appellant was a violent man and gave a detailed account of some of his actions. The image portrayed by them and other Crown witnesses was of a man given to anger, flogging the children with a strap and belting them, leaving welts on their legs. He was portrayed as a lazy man and a heavy drinker. SK said she was terrified of him. 84 Counsel for the appellant emphasised that the complainants did not give evidence that they were threatened with violence if they did not comply with the appellant's demands. Furthermore, defence counsel at the trial did not challenge the credibility of the complainants to suggest that they acquiesced in performing sexual acts or because they failed to complain to their mother at the time the offences were allegedly committed. 85 The appellant submitted that the evidence of the appellant's alleged violence was inadmissible because it offended the credibility rule and did not fall within the exception to that rule of re-establishing credibility (s 102 and s 108 of the Evidence Act). It was further submitted that by reason of its lack of probative value and unfair prejudice it should have been excluded pursuant to s 137 of the Act. 86 Unless otherwise excluded, evidence that is relevant is admissible in a criminal trial (s 56 of the Evidence Act). Evidence that is relevant is evidence which could rationally affect, directly or indirectly the assessment of the probability of a fact in issue (s 55(1)). Evidence is not irrelevant only because it relates to the credibility of a witness (s 51(2)). 87 In the present case, proof of each of the counts required the Crown to establish a discrete set of facts relating to the conduct of the appellant concerning his sexual relations with the complainants. The evidence indicated that in relation to some of the counts, the appellant was physically overbearing or put the complainant in fear although this was not so in relation to each count. 88 Evidence which has the effect of explaining the actions or lack of action of a complainant who is confronted by another person intent upon some form of sexual assault has been admitted in trials, although not without controversy and difficulty. As the different judgments in HML v R [2008] HCA 16; (2008) 235 CLR 334 made plain, the controversies have proved difficult to resolve and guiding principles difficult to develop. When the evidence is tendered for the purpose of establishing the context in which the charged acts occurred, it is necessary to consider whether the evidence bears upon the assessment of the probability of a fact in issue, whether it is relevant only to the credit of a witness, or whether, although otherwise admissible, it should be excluded because of the danger of unfair prejudice. Each of these questions can occasion difficulty in a particular case. 89 In many cases the issue of concern will be whether evidence of other sexual misconduct by an offender should be admitted at his trial for particular offences. In HML Gummow, Kirby and Hayne JJ remarked that such evidence may be admissible for the purpose of showing that an accused had a sexual interest in a complainant or that an accused was disposed to carrying out sexual assaults against a complainant (per Hayne J at [109], [234]). 90 Evidence of the physical events which are said to constitute an alleged crime will always be admissible in evidence. Where a sexual assault is alleged, evidence of the relevant physical events will be admissible. In most cases, that evidence will be confined to evidence given by the complainants where the allegation might otherwise appear to come "out of the blue" (R v GAE (2000) 1 VR 198 at 206; Tully v R (2006) 230 CLR 234 at 278). Where the complainant's credit is attacked for failing to make a contemporaneous complaint, evidence of a pre-existing relationship, including evidence of previous sexual relations between the accused and the complainant is, subject to discretionary issues, admissible as evidence relevant to an issue in the trial. Such evidence may also be relevant where it is accepted that the relevant physical act occurred but the issue is whether the complainant consented. It will provide a context in which the complainant's evidence can be appropriately evaluated. It may be the case that the evidence supports the complainant's credit, it may achieve the contrary, or it may assist the finder of fact to conclude that the disputed event did or did not happen. 91 In HML, Heydon J at [272] drew upon the writings of the Roman-Dutch scholar Matthaeus who described a presumption of fact as "nothing other than an inference of common sense, based upon what usually happens or is presumed to happen." In many cases, in order to reach a conclusion about whether a particular act happened, the context in which that act is said to have occurred will be of assistance to the decision maker. Accordingly, if there is a history of sexual misconduct by an accused with the complainant, common sense would suggest that it is more likely that a particular event, even if not precisely recalled by a complainant, will have occurred. Where in a trial for murder the issue was whether the accused discharged the gun by accident, evidence of a pre-existing enmity between the parties would, as a matter of common sense, suggest that the shooting was deliberate rather than an accident. This was the situation in Wilson v The Queen (1970) 123 CLR 334. 92 The admissibility of tendency evidence is controlled by s 97 of the Act. The evidence will be relevant to prove that an accused had a tendency to act in a particular way or have a particular state of mind. It may be that there is evidence that an accused had previously sexually assaulted the complainant or, in similar circumstances to the act charged, has assaulted another person. The former may contribute to an understanding of the context in which the charged act occurred. The latter, of course, will not. If tendered as evidence of the context it is admissible because it enables the finder of fact to better appreciate the true relationship between the parties allowing the complainant's and/or the accused's evidence to be seen in context. It does not, in the same manner as tendency evidence would do, directly inform a judgment as to whether the offence with which an accused has been charged actually occurred. 93 In the present case, both complainants gave evidence of repeated sexual acts committed on them by the appellant. On occasion their evidence indicated that they were "scared or terrified." On occasion their evidence indicated that they did not want to engage in sexual activity but being scared of the appellant felt unable to resist. KG said that on one occasion she decided to report the events to her mother but out of a concern as to any response from the appellant decided to remain silent. 94 In September 1980 the appellant again took KG to a physiotherapy appointment. They returned home at about 11.30 am. The appellant allegedly told KG to undress and to put on lingerie. KG told the appellant, "I didn't want to do anything." The appellant said, "Come you're going into the bedroom." KG said that she complied because she was scared of the appellant. The appellant allegedly took pornographic photos of KG, including photos of KG performing fellatio on him for four to five minutes (count six). The appellant allegedly applied Vaseline to KG's vagina and had penile-vaginal intercourse with her from behind and ejaculated inside her (count eight). He also performed cunnilingus on KG (count seven). KG said that she felt "scared, emotional – I just didn't want to be there." KG gave evidence that the appellant "actually made the threat that it wasn't to be told to anyone." 95 In February to March 1982, while KG's mother was in hospital, the appellant allegedly engaged in nightly sexual activity with the complainant. On one occasion the appellant allegedly undressed KG, took pornographic photos of her, engaged in fellatio and cunnilingus, applied Vaseline and had penile-vaginal intercourse with KG from behind (count nine) and then from on top while KG lay on her back (count ten). The appellant allegedly withdrew his penis and ejaculated over KG's stomach. KG gave evidence that after this incident she "made a decision to tell mum" but then "talked myself out of it … I was scared of what he would do to me." 96 Count eleven was the only offence that required proof of absence of consent. DR ran away from home sometime in 1982. This occurred following an altercation which culminated in DR pushing MW to the ground. KG gave evidence that the appellant took her with him in the car to look for DR in the area known as the Vale of Clwydd. The appellant parked the car in a "protected area" off the road. He allegedly asked for oral sex. "I told him again I didn't want to do anything." The appellant replied, "You're going to do it." KG said in evidence, "I didn't believe I had a choice." KG performed fellatio on the appellant until she tasted "pre-ejaculate" (count eleven). The appellant then allegedly had penile-vaginal intercourse with KG from behind while she leaned over the boot of the car (count twelve). 97 SK gave evidence of a similar progression from "cuddling" under the kangaroo skin rug on the lounge to touching over and then under her nightdress and underpants to digital penetration. SK also complained that the appellant gave her "adult kisses." She recalled receiving a Polaroid camera and signet ring as special gifts. 98 While SK was in year three at school, the appellant allegedly digitally penetrated SK's vagina while they were lying on the lounge under the kangaroo rug. When this happened, the appellant said, "Just relax. Do you like it? You'll enjoy it." SK gave evidence that she was "terrified" and didn't know what to say – "So I never said anything." 99 To my mind, evidence of violence perpetrated by the appellant against the complainants was relevant because it provided a realistic context in which to understand the complainants' evidence. Evidence that a complainant did not resist the appellant or report the assaults to her mother because she believed it to be pointless to resist or was scared or terrified of the appellant's possible response demands an understanding of the context of the prior relationship between the complainant and the appellant. If the relationship is one where the appellant has been violent to the complainant or, to the knowledge of the complainant by his dealings with others, has demonstrated a preparedness to use violence or put others in fear, that event, which places the alleged offences in a realistic context, must be admissible when given by a complainant. However, it may be otherwise if given by a third party. 100 In Wilson, evidence of the relationship between the accused and the deceased was admissible to inform the issue of accident. As is obvious, that evidence could come from third parties. However, it was not evidence of a tendency or propensity of the accused to shoot people; it merely provided a realistic context within which to understand the charged act. In the present case, evidence of the appellant's propensity to inflict violence upon third parties ie persons other than the complainants was only relevant if it provided evidence of the context in which the appellant allegedly acted and the response of the complainants to his actions. Whether or not the appellant was otherwise a person given to violence was not relevant. 101 The appellant submitted that because the evidence originally anticipated by the Prosecutor did not eventuate, the trial miscarried. His counsel emphasised the fact that the defence did not challenge the credibility of the complainants because of their acquiescence or failure to complain. To my mind these submissions cannot be accepted. Although this evidence or the suggested challenge was not forthcoming, it was nevertheless relevant for the jury to appreciate the nature of the "relationship" between the complainants and the appellant. It would be obvious that any person would question why the complainants did not resist or complain about the appellant's actions. That issue was capable of being informed by a knowledge of the appellant's propensity for violence directed at the complainants. As my discussion of their evidence indicates the circumstances of various of the offences were inextricably bound up with acts of violence, or at least, the threat of violence by the appellant. 102 Subject to discretionary issues, this analysis makes admissible the evidence of the appellant's violent conduct given by the complainants. However, I believe that it was otherwise with respect to the evidence of MW or DR, of acts of violence committed on them when the complainants were not present. This evidence confirmed a tendency for violence on the part of the appellant but to my mind was not admissible as evidence of the context in which the alleged offences occurred. Exclusion under s 137 103 The appellant submitted that the evidence of violence should have been excluded pursuant to s 137. It was submitted that because no challenge was made by the defence on the basis of the complainants' failure to complain or their acquiescence, the evidence was of only slight probative value. 104 The unfair prejudice occasioned to the appellant was described as grave. A number of aspects were identified. The appellant was presented as a persistent and brutal child and wife beater. This irremediably blackened his character. Secondly, it was submitted that it created a false issue requiring the appellant to defend his character against ill-defined and non-specific allegations. It was further submitted that the appellant was presented with the difficulty of the opening remarks by the Prosecutor suggesting evidence of threats of violence by the appellant towards the complainants and evidence relating to MW's broken nose. The appellant submitted that the admission of the evidence of violence introduced the very real danger of its misuse by the jury. Reference was made to the observation by Gleeson CJ in HML at [12] that "the risk that evidence of propensity will be taken by the jury to prove too much." The risk was said to be that the jury would impermissibly reason that the appellant's disposition or tendency to engage in violent or discreditable conduct meant that it was likely, or more likely, that the appellant committed the offences for which he was being tried. It was submitted that the Prosecutor's closing address which characterised the charged sexual acts as a continuation or progression of the acts of violence effectively invited the jury to engage in this mode of reasoning. 105 Finally, it was submitted that a discrete form of unfairness arose because the evidence of violence given by the complainants was corroborated by other prosecution witnesses. This created the possibility that the jury would erroneously consider corroboration of the appellant's violence as corroboration of the charged acts (see Hodgson JA in Leonard v R (2006) 164 A Crim R 374 at 388 [54]-[58]). It was said that this gave the prosecution case a persuasive force which it did not have. For these reasons it was submitted that the trial judge's discretion to admit the evidence miscarried: House v The King (1936) 55 CLR 499; Smale v R (2007) NSWCCA 328 at [32]. 106 It was further submitted that even if admitted, it may have been possible for his Honour to have limited the use to which the evidence could be put, thereby ameliorating any prejudice. In particular it was suggested that the evidence could have been limited to identifying the fears the complainants held (not the basis for the fears) and it could have been required to be given in general rather than specific terms. 107 As I have previously indicated, in my view, the evidence of the appellant's violence given by MW and DR should have been rejected. However, the situation is otherwise with respect to the evidence of the complainants. Given the nature of the charges, involving, as at least some counts did, the appellant imposing his will on the complainants, a real appreciation of the circumstances of each offence required an understanding of the appellant's general behaviour relating to the complainants. It was never suggested and of course could not have been suggested that because the appellant was a person given to violence he was necessarily a person given to sexual assaults. This was not a case as was recognised in HML when similar fact evidence could distort or overwhelm a jury's consideration of the facts relevant to the elements of each of the counts. There was no difficulty for the appellant in challenging the evidence of violence which he did, both by his own evidence and through the evidence of others. Although the evidence was obviously prejudicial to the appellant that prejudice was not unfair in the relevant sense. Section 137 did not require the exclusion of the evidence of the complainants with respect to the appellant's violent behaviour toward them. Ground 2 108 As I have previously indicated the trial judge addressed the evidence of the appellant's violence during the course of the trial. At the conclusion of the evidence of KG his Honour spoke to the jury about the relevance of the evidence of the appellant's violence and the assault of KB. I have set out his Honour's direction at [115]. 109 The Prosecutor then raised the issue of violence in his final address. A lengthy submission was made in the following terms: "Then comes the other aspect of his behaviour with these children. The question of his violence and his anger. Can you imagine how confused and bewildered these girls would be. Here he is coming into the household as a family figure, changing their names by deed poll, playing, giving them treats and then there's this violence. This violence that every member of the family, every child is a recipient of. KB told you that he'd belt you with a leather strap for the slightest indiscretion. If you answered back or drop a plate being an example, Back of the legs, backside with – and also on the hand. She tells you that she saw it, the beltings of D and she told you that it was not so much on S. And you recall the strap hanging over the coathanger in exhibit C, the photograph of the bedroom. Even the accused said yes that looks like and possibly was one of the belts that he used. And we all – it's common knowledge or commonly accepted that D ran away because he was terrified. He was terrified and he hid. You recall what D told you about Sussex Inlet when S dobbed him in for smoking. He was confined to his room for a week. And D also recalls that the accused use to lie on the lounge with K. You see D demonstrated by showing you how he was belted with this strap. The accused had it doubled over. He had his hand around the buckle and he raised his arm above his head. And you recall S came along. He demonstrated you might think how, exactly how the accused demonstrated how he was belted but S went a bit further than that. Immediately after and without any prompting and without question about it immediately after he said, 'But it wasn't above his head'. So it's a matter for you what weight you put on S's evidence as to that. It might well be that S was still trying to be his favourite. You see both D and S gave evidence of a falling out with their mother and their sisters. And the difference being is that S thinks the accused was a normal father and everybody else in the family knows the truth about it. In cross-examination the accused was asked this, words to this effect, 'Where would you go to get a belt to discipline them? Where would you go to get a belt to discipline them?' His answer was, 'If there was a belt it could've been on the lounge or hanging on a door knob. If no belt used his hand.' Well there's two other witnesses to say that it was readily available on this door knob. M and K. K tells you that he was always cranky, shouting, throwing things around, driving off in a temper she described as a hoon. She tells you how her mother was treated and her words are that 'She was treated like a doormat.' Had to do what he told her. She had no confidence. This is K telling you how her mother was treated. She had no confidence. She had several breakdowns. And M told you this, MW, he is very domineering, demoralising. She had mental stress, breakdowns, periods in hospital. 'He took, my self esteem away.' And she was asked in cross-examination words to the effect, 'Did you ever ask K about these special gifts?' and her response was this, 'I wouldn't in a frame of mind to do that. Downgraded, abused, drained of self respect. I was just an empty shell. I would get abused if asked him about the special gifts', so she said that if she questioned him about those special gifts he was of such a nature and such a character that he would abuse her. S says regarding the violence, 'He would strike out at us when mother's not there. He'd cane us with the dowel' and recall the doweling coming from that old drier that you hang your clothes on. Apparently there's a fan that blows hot air up through the clothes. She recalled one time that they were all lined up. He accused them of doing something and she and D stepped forward at the same time and they both got caned. And if you flinched you'd get another one. She tells you that she – this is S – was terrified of him. She recalls on one occasion that she ran into her bedroom, got under the bed, hid behind some toy boxes for two hours waiting for her mother to come home. She wet her panties. This accused instilled fear into these children. He broke their spirit and how could they cope with this in their minds. That is the conclusion about the niceness, the violence and then at a later time the acts, essential acts are also acts of violence. Exhibit B, this group photo, S is about five. There's S. And K was about seven or eight. It wasn't until a year or so later before S started to get abused but at this time the accused was penetrating the vagina of this girl K with his fingers. M says that he used to – she seen him discipline D. He'd belt him if he back chatted. She told you about the force. That it was a hard force via the belt or the doweling rod. She told you that the belt was kept on the door handle going into the lounge room and the accused, as I've read out to you what he said in relation to it that it could've been on the door handle ready there as an intimidating threat on these children." 110 Later he said: "And you recall that K gave evidence that she was going to tell her mum who was in hospital. She got up that morning and made her way to the hospital area and she said – she tells you that she talked herself out of it and why did she talk herself out of it? Because she was scared and she did not know what he would do to her. This is the man that has demonstrated violence to the girls and to D in front of them. See he flogged D to such an extent that he'd run and hide down at his friends at the Vale of Clwydd and these acts, sexual acts they were also violence penetrated upon a fourteen year old girl." 111 Later, when summarising the sequence of events the Prosecutor referred to "the beltings. The introduction of violence into it. These girls would've been so bewildered and confused, scared and threatened. He eventually broke their spirits …" 112 Defence counsel also addressed the issue with the jury. He said: "Let's just have a look at this, there's something mysterious about this case isn't there. There's something mysterious about the main prosecution witnesses. Are those prosecution witnesses K, S, M, D are they so truthful that on their evidence you could be satisfied beyond reasonable doubt of the guilt of the accused. They paint a picture of this man as a lazy, a heavy drinker, person who wouldn't work, violent, cruel, child sexual molester, that's the picture they paint in one way or another. And then how do you reconcile that evidence with the evidence of SR, SGS, and RN. You see someone's not telling the truth, And it's interesting that the people SR, SGS and RN don't have the bitterness or the resentment towards this man, that those other witnesses have. You see isn't the situation that the evidence and the attitude of K, S, M and D is poisoned with bitterness towards the accused. How impartially and fairly have they given their evidence." 113 Later when speaking of the evidence of SK he said: "What about S, well one thing that might stand out from your commonsense and experience of life that despite the sexual misconduct by the accused towards her she still manages to become dux of the class. You might expect in the normal course of things with something like this, that her school performance would deteriorate. And what about the things that she says, she's a great exaggerator S, if you examine her evidence she is a great exaggerator. For instance, 'I always used to try and put myself to bed before it was even dark to avoid it' imagine that, imagine that. This is this young girl, 'I always used to try and put myself to bed before it was even dark to avoid it' no one else says it. And she was asked a question by the prosecutor, if you did something wrong – it was about when she went into the bedroom and this is what her answer was 'I ran to the room, I hid underneath the bed behind the toys and boxes was there for two hours until mum got home that terrified that I wet myself.' If you analyse her evidence it's melodramatic, and it's riddled exaggeration. Look at the words she used in the witness box. She talked about K being quite a nice bloke in the beginning, then she says he grew into a violent, lazy man, he was always off work us kids would have to do a lot of work around the house, we would have to do the housework, he would just lay around usually all the time, the kangaroo rug was there, he would strike out, violently abuse us, belt us whenever he could, if you flinched you got another strike of the wooden dowel. She used the words anger, terrified, flogged D. She was asked in relation to the flogging of DR, With what force? This is what she said 'Violently extreme force left welts.' She talked about a passionate kiss, the breaking of the lamp at Sussex Inlet, 'I went running back to the cabin to mum terrified because I knew I would get into really big trouble' but there's no evidence she got into any big trouble. Look at her evidence melodramatic, exaggerated, over the top. Yet the prosecution says be satisfied beyond reasonable doubt of her evidence about the guilt of the accused." 114 Defence counsel also reminded the jury of the evidence favourable to the appellant. This included SR's evidence that the appellant used a leather strap to discipline the boys; that it was MW who used the cane; that he never saw the appellant hitting the girls; that the appellant was employed and did the housework; that the appellant rarely drank alcohol in the house; and that he could not recall the girls receiving special gifts. SR denied that the appellant was violent, cruel or lazy. 115 In his summing-up, the trial judge gave the jury directions relating to the delay in complaint. His Honour said: "Now the Crown case is that you would accept that both KG and Ms K made no immediate complaint about what she said the accused was doing to her because she was in fear of the accused. You have heard a lot of evidence in the Crown case abut the type of discipline the accused administered within the family and you have also heard some evidence how the accused behaved towards the child's mother. The Crown says the complainants thus had a perception of the accused as a man who was easily angered and who would be violent and this is why they felt they could not do anything to stop what he was doing or to complain about it. A specific example the Crown Prosecutor referred to was the evidence given by KG that the morning after the accused committed the acts that are relied upon for counts nine and ten she got up early, made the decision to tell her mother and walked to the hospital but by the time she got there she had talked herself out of it because she was scared of what the accused would do to her. Now the defence case has presented an alternative version of events. The accused denied that he was any way overly angry let alone violent with anyone. The discipline he said he administered was moderate and only when called for and only in relation to the boys. Ms RN, his former wife, said he was not an angry or violent man. SS, his sister, described him in the same way. SR said the accused was not violent or cruel and he, S, described the manner in which the accused used the belt and I have referred to the demonstrations that were given to you." 116 Early in the summing-up his Honour reminded the jury of the evidence of the appellant's character. His Honour reminded the jury that there was evidence of the appellant's propensity for violence but said that he would not go into the detail. His Honour said: "The next direction I must give you concerns some evidence about the character of the accused. There was evidence from Detective Sinton when he was being cross-examined by Mr Walsh that the accused has no criminal convictions for assault or sexual assault. Then there was evidence from Ms SS, the former sister in law of the accused, that in the period of time in which her family had contact with the accused and his wife, RN, she had no concerns about the accused in relation to her daughters of a sexual nature. It is a matter for you what you make of that broad statement. She was not asked about the type of contact he had with those daughters except that it was on occasions when the families visited each other's home when adults were present. Ms N, who was called by the Crown, said that the accused was not a violent man; he was not lazy, he was not a heavy drinker of alcohol. She said he was always happy go lucky and did not easily get angry. She saw him in the company of the children in her family and she said he related well to them. Despite the fact that she lived in Lithgow and the accused had for some time lived in Ballina, she said that they had retained their friendship and she was supportive of him in relation to the allegations that are subject of this trial. SR described the accused as easy going. He said he was not a bad person, he said 'He was always good to us, Mum and the four children.' He said the accused was not violent or cruel. Mr Walsh has argued that you would take this evidence into account as establishing those specific aspects of the character of the accused. In the Crown case, however, there is evidence that conflicts with the evidence I have just been referring to. I do not propose to go through the detail of it but I am referring to the evidence by the two complainants, Ms G and Ms K and MW and DR about the accused they say being a violent and domineering type of person who had them living in fear. Now it is a matter for you whether you accept the evidence in the defence version of it about the character of the accused. If you do, then the law is that the accused is entitled to have you take this evidence into account in a particular way and that is that the fact that he is a man of that type of character entitles you to consider the improbability of him having committed the offences alleged. In other words, you are entitled to take this aspect of the character of the accused into account on the question of his guilt. This does not mean of course that this provides him with some kind of a defence; it is only one of the many factors that you must take into account in determining whether you are satisfied beyond reasonable doubt of his guilt." 117 The appellant submitted that the trial judge's directions were inadequate. It was submitted, relying upon R v JDK [2009] NSWCCA 76 that the jury should have been directed both at the time the evidence was given and in the summing up of the confined use which could be made of the evidence. This meant that the jury should have been told in clear terms that the evidence was tendered in order to provide background to the relationship so that the evidence of the complainant and her response to the alleged acts of the accused could be evaluated with a complete understanding of that alleged relationship. It was further submitted that the jury should have been told that they could not use the evidence as tendency evidence. 118 The appellant's submission reflects a misunderstanding of my remarks in JDK which was concerned with other actions by an accused of a sexual nature involving the complainant, referred to in HML as "uncharged acts." The appellant refers to uncharged acts or discreditable conduct, presumably a reference to Hayne J in HML. 119 Although violence is plainly discreditable, it is not the kind of evidence or conduct which Hayne J had in mind. The purpose of its tender was to put the allegation in context but it provided evidence of quite a different character to the substantive allegations. 120 In the present case, although the evidence of the appellant's violence provided the jury with information about the context in which the crimes allegedly occurred, its primary relevance was to explain the complainants' apparent acquiescence and failure to report the events when they happened. Although his Honour directed the jury as to the purpose of the evidence at the conclusion of KG's evidence, he did not otherwise refer to the issue until the summing up. Although he could have done so, I do not believe it was necessary. Having had the purpose of the evidence explained to them after KG's evidence I am in no doubt that the jury would have readily understood the purpose for which similar evidence from the other witnesses was admitted. 121 I have set out above the directions which the trial judge gave in his summing up. They were consistent with the purpose for which the evidence was admitted and did not elevate the evidence beyond its appropriate significance in the trial. Trial counsel raised no issue with respect to the directions and rule 4 applies. There being no arguable error I would decline leave to raise this ground. Ground 3 122 Under this ground the appellant's primary submission was that the Crown Prosecutor sought to "collapse the boundaries between the appellant's violent conduct and the charged sexual acts" and invited the jury to engage in impermissible tendency reasoning. It was submitted that in his address to the jury the Prosecutor invited the jury to reason that because the appellant had a tendency to behave violently towards the step children, it was inherently more likely that he had engaged in the culpable sexual acts which were merely another form of violent conduct. 123 I have previously extracted the relevant passages from the Prosecutor's address. There is no doubt that the Prosecutor emphasised the evidence of the appellant's violent actions and emphasised the role that the violence would have played in subduing the children and putting them in fear. Although the language the Prosecutor used was strong, it was not inappropriate having regard to the evidence which had been admitted. The evidence justified a submission that the children were, because of the appellant's use of violence, afraid of him, providing the context in which they became compliant of, and did not complain to others about, his sexual activities. 124 There are some difficulties created by the references to the manner in which the appellant treated MW. I have already indicated that in my opinion that evidence should have been excluded. It was not of direct relevance to the manner in which he treated the complainants nor did it explain their response to him. However, having regard to the force of the admissible evidence and the clear picture which it presented of the nature of the appellant's treatment of the children I do not believe the evidence of his mistreatment of MW to have been significant to the jury's verdict. It had the effect of reinforcing the jury's image of the appellant as bad tempered, domineering, abusive and at times violent. However, that image was firmly established by the complainants' evidence. I refer to this matter below. 125 The appellant emphasised that during discussion with the trial judge about the admissibility of the evidence of the breaking of MW's nose his Honour pointed out that the Crown's tendency notice did not include a tendency in the appellant to be violent. The tendency notice identified sexual intent but not violence. Accordingly, by associating the appellant's alleged sexual acts with violence (effectively characterising them as acts of violence) it was submitted that the Prosecutor invited the jury to reason directly from the appellant's violence to his guilt in relation to the sexual offences. 126 By making the submission which he did, it was submitted that the Prosecutor exceeded the boundaries permitted to a prosecutor, ie he made submissions based on material which was not in evidence and was guilty of intemperate or inflammatory comments tending to arouse prejudice or emotion in the jury: see R v Livermore (2006) 67 NSWLR 569 at [32]. Reliance was also placed on the approach of the Court of Appeal in Victoria in R v DDR [1998] 3 VR 380; (1997) 99 A Crim R 327 which set aside a conviction because accusations made by a prosecutor were said to have "been designed only to create prejudice in the jury against (the accused)" rather than provide a logical argument to support the prosecution case. 127 I am not persuaded that the submission should be accepted. It is not without significance that no application was made by trial counsel either for the discharge of the jury or requesting a direction from the trial judge to deal with the situation. This would suggest that the adverse impact now suggested to arise from the Prosecutor's remarks may not have been the experience of those in the Court. 128 I have no hesitation in rejecting the submission that the Prosecutor's remarks were not based upon the evidence. The submissions which were made were clearly open. The evidence disclosed a pattern of abuse commencing when the children were quite young and continuing as they grew older, ultimately extending to penile penetration. As the children grew older any inclination they had to resist or complain was understandably influenced by the appellant's behaviour including the fear he created by reason of his violence towards them. The proviso 129 The ultimate question is whether the admission of the evidence of the appellant's threats or actual acts of violence perpetrated on other than the complainants and his allegedly abusive conduct in the family situation has occasioned a miscarriage of justice. I do not believe it has. 130 I have carefully reviewed the transcript of the evidence at the trial. Leaving aside the evidence which in my opinion should not have been admitted the evidence of the complainants and in particular their account of the relevant events is entirely convincing. Although the evidence of the appellant's violent conduct towards others, particularly MW, would no doubt have adversely coloured the jury's view of the appellant, I do not believe it would have caused the trial to miscarry or occasioned the appellant the loss of a chance of an acquittal. 131 In my judgment the appeal should be dismissed. 132 SIMPSON J: I have read in draft the judgment of McClellan CJ at CL. I agree with the orders his Honour proposes, and, for the most part, with his reasons. I depart from the reasoning of his Honour in only the following limited respect. I do not share his Honour's view that the evidence of violence on the part of the appellant given by the complainants' mother, MW, and brother, DR, ought not to have been admitted. That requires some analysis of the course of the trial and the evidence. 133 The Crown served upon the solicitor for the appellant notices under s 97 and s 98 of the Evidence Act 1995, signalling its intention to call tendency and coincidence evidence. To the notices it annexed copies of statements of each complainant, and of MW and DR. The "tendency" identified in the s 97 notice was: "The tendency [of the appellant] sought to be proved is his/her (sic) tendency to have a particular state of mind, namely an unusual sexual interest in his step-daughters who were of a young age and under his care, as evidenced by his acts." The notice went on to particularise facts and circumstances upon which the Crown relied. 134 One of these was: "e. Both complainants allege that the accused made threats and was violent towards them. [KG] said that the accused told her not to tell anyone as it was their special time together. She also said that on one occasion the accused threatened to hit her if she did not submit to sexual intercourse with him. She was also afraid of what the accused would do to her if she told anyone what was happening. [SK] said that the accused would belt the kids all the time for very little reason when their mother was at work. She was extremely scared of the accused due to the violence and anger he would show towards her. On one occasions (sic) she hid from the accused under her bed for 2 hours until her mother came home. The accused would use a strap and flog the children regularly for almost anything. The accused's act of penile/vaginal intercourse with her caused her to be absolutely petrified of him." In my opinion this reflects an imperfect appreciation of the nature of tendency evidence. It is difficult to see how evidence of violence of the kind referred to is capable of establishing "an unusual sexual interest" in the complainants. 135 The appellant's legal representative filed a Notice of Motion seeking separate trials in respect of the allegations made by each complainant. This was supported by an affidavit affirmed by the appellant's solicitor. 136 Before his Honour on that application were additional statements of the complainants, and the statements of the complainants' mother and brother, and SK's husband. The basis of the application was acknowledged to be "a real possibility of concoction" (AB 139). This was a reference to the decision of the High Court in Hoch v The Queen [1988] HCA 50; 165 CLR 292. Counsel for the appellant agreed that his "sole complaint" was "under s 101(2)" of the Evidence Act. A voir dire was conducted, in which each complainant, MW and DR gave evidence. Both MW and DR gave evidence of violence. 137 After hearing the evidence and argument, the trial judge rejected the appellant's application for separate trials. He held that, as the evidence of each complainant would be admissible in the trial concerning the allegations of the other, there was no reason to order separate trials. In this judgment, and in the argument that preceded it, there was no reference to the evidence of violence. It is clear enough that the evidence of violence was not treated as tendency evidence. Defence counsel expressly acknowledged that the evidence did not support the contention that the evidence of either complainant was contaminated by concoction. 138 It was then that the issue of the evidence of violence was raised. Just what evidence was here under consideration was never stated with precision. The transcript records the following: "CROWN PROSECUTOR: Just a question of contextual evidence your Honour I don't think your Honour needs to make a formal ruling giving (sic) that -- HIS HONOUR: No. [COUNSEL FOR THE APPELLANT]: Well your Honour I'll make a formal objection to the contextual relationship evidence, I'm aware what the law is -- … Your Honour makes the ruling." 139 His Honour then indicated that the "contextual evidence" would be admitted. Before he finished his remarks, counsel for the appellant said: "The other matter, one matter that I wish to raise your Honour is this its, I'm seeking for the Crown not to lead evidence in relation to violence and I do so on this basis, that there is no suggestion that any of the sexual acts were committed in response to threats or violence and the violence that has been described in the court relates obviously to disciplinary sorts of matters and I object to the Crown leading evidence of violence." 140 In response to an inquiry from his Honour, the transcript records that the Crown prosecutor said: "Well at the time of the offences in particular count 1 and 2 that's the Sussex Inlet matters, [KG], he said to her 'do as you're told or I will hurt you'. In count 3, at paragraphs 2 and page 3 to the end of paragraph 3 page 4, he said to her 'don't tell anyone it's our secret' threaten to hurt her if she did. Similarly, the incidents counts 11 and 12 … he did again threaten to hit her if she didn't comply with what he wanted … and your Honour's (sic) [SK] evidence that she was terrified or petrified of him to such an extent that she hid under the bed and wet her panties. There's also the evidence of [KG] who observed that the violence towards – the result of the violence towards her mother blood all over, well blood in the bathroom and injuries to her face. So those episodes of violence are intertwined with the niceness, the grooming and it's significant in the sense that these, will be alleged that these children at the time eight, nine, 10 were afraid of him and were confused as to the periods of niceness, the grooming if we could put in that aspect and didn't tell anyone because of his violence within the family and there is evidence that they were aware of his violence towards [DR], causing [DR] to go away, run away …" 141 At no time was there any attempt to differentiate between evidence of violence towards the complainants, or violence towards others in their presence, or to their knowledge, and evidence of violence otherwise. 142 It is important to note that the evidence now under consideration, that is evidence of violence unrelated to sexual molestation of either complainant, although the subject of the tendency notice, is not, and was not tendered as, tendency evidence. The appellation given to it was "context evidence" or "contextual evidence", appellations commonly used and understood. It was not evidence of the kind the subject of the seven separate judgments in HML v The Queen [2008] HCA 16; 235 CLR 334. That evidence, as outlined by Heydon J, was evidence of sexual misconduct of a kind similar to that the subject of the charges, or evidence signifying a sexual interest in the complainants: see Heydon J at [256], [356]. Gleeson CJ opened his judgment by saying: "[1] These matters raise issues concerning the admissibility at a criminal trial of a certain kind of similar fact evidence …" 143 It is necessary properly to characterise the evidence of violence towards MW and DR, in the absence of the complainants. In part, it fits within the description "context" evidence: it helps to depict the context in which the conduct the subject of the charges took place. 144 But it did more than that. A recurring theme throughout the evidence of the two complainants was that they did not disclose the appellant's conduct to their mother, or to anybody else, because they were in fear of the appellant. KG said that, on one occasion, she had resolved to tell her mother (who was at that time in hospital) but that, by the time she arrived at the hospital "I'd talked myself out of it". This was because "I was scared of what he would do to me". She also said, in respect of one of the incidents (AB 226) that she told the appellant that she did not want to engage in oral sex, which he was demanding, but that he ordered her to do so, and "I didn't believe I had a choice". 145 In HML, Gleeson CJ pointed out: "Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life." 146 Trial and appellate judges are distressingly familiar with evidence of this kind. But it may be supposed (and hoped) that many, if not most, members of juries will not have been exposed to conduct of the kind here in question. It is, it may be supposed, entirely alien to, and well outside the "experience of life" of the vast majority of members of the community who are required to serve on juries. It may be difficult for those individuals to understand that two young sisters, repeatedly sexually molested by their step-father, did not feel able to tell their mother of that conduct, and continued, however unwillingly, to acquiesce in it. 147 The evidence of the appellant's violence was powerful evidence in support of what may otherwise have seemed to a jury to be unlikely. It explains what may otherwise not be apparent to a jury. That was the approach taken by Gleeson CJ to what he called "similar fact evidence" in HML. 148 I agree with McClellan CJ at CL that the evidence of violence towards the complainants was admissible, as was evidence of violence to others committed in their presence. 149 I see no reason to treat the evidence of violence towards MW or DR differently to evidence of violence towards the complainants. I am not attracted by the proposition that, unless the complainants were aware of the specific instances the subject of the evidence of MW and DR, it should not have been admitted. The issue was whether, as they said, the complainants either acquiesced, or did not complain, because of their fear of the appellant, stemming from his violence. The fact of his violence, even if some instances of it were unknown to the complainants, was a relevant strand in establishing that part of the Crown case. 150 With those reservations, I agree with McClellan CJ at CL. 151 FULLERTON J: I agree with McClellan CJ at CL. ********** 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.