Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AC v R [2016] NSWCCA 21 Hearing dates: 21 October 2015 Decision date: 26 February 2016 Before: Hidden J at [1] Davies J at [2] Adamson J at [107] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appellant charged with multiple counts of sexual offences and assault offences against young children – evidence of uncharged acts not opposed – tendency evidence – whether evidence of significant probative value – whether probative value outweighed by prejudicial effect – whether inconsistent verdicts – whether verdicts unreasonable EVIDENCE - tendency evidence – whether acts relied on lacked similarity Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: BP v R; R v BP [2010] NSWCCA 303 Colby v R [1999] NSWCCA 261 Dungay v R [2010] NSWCCA 82 Hughes v R [2015] NSWCCA 330 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 60 O'Keefe v R [2009] NSWCCA 121 Osland v R [1998] HCA 75; (1998) 197 CLR 316 Potts v R [2012] NSWCCA 229 R v Ford [2009] NSWCCA 303; (2009) 201 A Crim R 451 R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 Saoud v R [2014] NSWCCA 136 Sokolwskyji v R [2014] NSWCCA 55 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: AC (Appellant) Crown (Respondent) Representation: Counsel: T Gartelmann & E Anderson (Appellant) M Cinque (Crown) Solicitors: Younes & Espiner Criminal Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/269337 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 March 2014 Before: Huggett DCJ File Number(s): 2012/269337 Judgment 1. HIDDEN J: I agree with Davies J. 2. DAVIES J: The Appellant stood trial before her Honour Judge Huggett and a jury of twelve on the following charges: Count 1: Sexual intercourse with a child under the age of ten years; Count 2: Sexual intercourse with a child under the age of ten years; Count 3: Common assault; Count 4: Aggravated indecent assault on a child under the age of ten years; Count 5: Common assault; Count 6: Assault occasioning actual bodily harm; Count 7: Assault occasioning actual bodily harm; Count 8: Sexual intercourse with a child under the age of ten years; In the alternative: Count 9: Aggravated indecent assault on a child under the age of 16 years; Count 10: Assault occasioning actual bodily harm; Count 11: Common assault. 1. Counts 1-7 involved the Appellant's step daughter TF and counts 8-11 involved the Appellant's daughter MC. 2. The Appellant was found guilty of counts 1-6 and 10. He was found not guilty of counts 7-9 and 11. 3. The Appellant was sentenced by Judge Huggett to an aggregate term of imprisonment for 22 years commencing 8 June 2014 and expiring 7 June 2036 with a non-parole period of 15 years expiring 7 June 2029. 4. The Appellant now appeals and seeks leave to appeal on the following grounds: Ground la: The judge erred in permitting use of evidence to prove tendency. Ground lb: The use of tendency evidence caused a miscarriage of justice. Ground 3: The verdicts in respect of counts 5 and 6 are unreasonable or cannot be supported having regard to the evidence and/or the verdict in respect of count 7. Ground 4: The verdict in respect of Count 10 is unreasonable or cannot be supported having regard to the evidence. 1. A further ground, Ground 2, appealing against the admission and/or use of context evidence causing a miscarriage of justice has been abandoned. There is no application for leave to appeal against the sentence imposed. The offences 1. Count 1 concerned an incident at Quakers Hill between 1 March 2005 and 1 April 2006 when TF was aged three or four years and the Appellant put his penis into TF's mouth and required her to perform fellatio on him. In the course of TF's interview with the police TF said that the Appellant had required her to perform fellatio on him on a number of occasions over a period of time. Count 1 was referable to the first time it was alleged this had happened. 2. Count 2 involved the Appellant requiring TF to insert a hair brush into the anus of her twin sister AF with the Appellant assisting TF to do so. The incident took place between 1 July 2004 and 8 February 2005 at Marayong. At that time AF was aged three years. 3. Count 3 was associated with count 2. For TF to insert the hairbrush into AF's anus the Appellant put his hand over TF's hand and forced her to insert the hairbrush. The touching of TF's hand by the Appellant was asserted to be the common assault. 4. Count 4 took place between 1 July 2005 and 15 June 2008 at Quakers Hill. It involved the Appellant holding a hairdryer to TF's bottom when she had no pants on at the time. The hairdryer was turned on very hot and TF said it was painful. It was the touching of the naked bottom which constituted the act of indecency. 5. Counts 5, 6 and 7 were of a similar nature. TF said that at various times and in various places the Appellant stood on or jumped on her stomach. This caused her pain and on two occasions it caused her to defecate in her pants. These counts all amount to assault and the pain and the defecation are said to amount to the actual bodily harm in respect of counts 6 and 7. 6. Count 8 was alleged to be the insertion by the Appellant of a hose into the anus of MC at Lane Cove between 29 September 2011 and 8 October 2011. At the time MC was aged three years and MC was under the Appellant's authority. 7. Count 9 was charged in the alternative to Count 8. If the jury was not satisfied that there was actual penetration of the anus by the hose the use of the hose near the naked bottom of MC would amount to assault with an act of indecency. 8. Count 10 concerned repeated hitting by the Appellant of MC because she had broken her brother's toy car. This offence was said to have occurred between 29 September and 8 October 2011. 9. Count 11 was said to be an assault by holding a cigarette lighter against MC's leg and burning her leg. This assault is said to have occurred within the same timeframe as count 10. Factual background 1. AF and her twin sister TF were born to their mother AKF on 1 July 2001. Subsequently in 2003 AKF met the Appellant through an internet chat room. AKF decided to relocate to Sydney in June 2004 to be near to the Appellant. However, although AKF and the girls spent most of the time at the Appellant's house, for a period of time they maintained two separate households with the Appellant living at Nairana Drive, Marayong and AKF living at Eastern Road, Quakers Hill. The Appellant had a daughter E from a previous relationship, and E stayed with the Appellant on alternate weeks. 2. On 9 February 2005 AF died aged three years and seven months. The cause of her death was determined to be peritonitis. The autopsy showed that AF had an anal laceration. 3. In March 2005 the Appellant, AKF and TF moved into a house together at Gwydir Avenue, Quakers Hill. Subsequently, the Appellant and AKF had three children, M born 28 March 2006, SC born in August 2007 and MC born 2 September 2008. 4. TF first made complaint to her great grandmother, BD, on 16 June 2008, the day she travelled to Darwin with her great grandparents. The day after they arrived she made statements to her grandmother, ST, and her grandmother's fiancé, Stephen, to the effect that the Appellant had made her say and do naughty things. ST contacted AKF who travelled to Darwin. Contact was made with the Northern Territory police and a number of recorded interviews with TF were made. Grounds 1a and 1b - Tendency evidence 1. On 12 November 2013 the Crown gave an amended tendency notice pursuant to s 97 of the Evidence Act 1995 (NSW). The tendencies sought to be proved in respect of the Appellant were tendencies to act in the following ways: (a) To insert objects into the anuses of very young children; (b) To inflict violence on very young children; (c) To burn very young children with a cigarette lighter; (d) To sexually assault very young children. ("the amended tendency notice") 1. The evidence intended to be adduced was identified as being in the following: (1) Recorded interview of [MC] dated 12 October 2011; (2) Recorded interview of [TF] dated 27 June 2008; (3) Recorded interview of [TF] dated 2 July 2008; (4) Recorded interview of [TF] dated 13 October 2011; (5) Recorded interview of [TF] dated 13 June 2012; (6) Statement of AKF dated 14 June 2012; (7) Statement of ST dated 13 June 2012; (8) Statement of Leanne Fraser 14 October 2013. In respect of each document the particular parts of the document were specified. 1. Each of the recorded interviews listed above and an additional interview with MC on 12 June 2012 was played at the trial. MC and TF were cross-examined. 2. It is necessary, first, to detail the course of events which culminated in the directions the Trial Judge gave to the jury in relation to tendency evidence. The course taken appears to have been been influenced by the concern of the Judge and the parties that the trial would not finish before Christmas. (a) The procedure followed 1. There was no opposition by defence counsel to all of the counts charged being heard in the one trial. Nor did he object to the Crown leading context evidence which consisted of uncharged acts. Nor did counsel for the defence object to the tendency evidence being led although not as tendency evidence. However, defence counsel said that he opposed the evidence being used as tendency evidence against each complainant and as between counts. 2. The Trial Judge suggested that it was not necessary to rule on the tendency evidence until after it was heard by the jury. A ruling could then be given and directions given to the jury. The Crown Prosecutor said that she could open in a limited way on the evidence and not make mention of tendency. Then, when the tendency evidence had been ruled upon by the Judge, and if it was allowed, she (the Prosecutor) could explain to the jury in her closing address how the tendency evidence was relied upon. Defence counsel agreed to that course. 3. The trial then took place. After the close of the defence case argument took place on 12 December on the Crown's amended tendency notice. The only matter raised by defence counsel was the issue of concoction and fabrication. Nothing was said on the matter of similarity of the acts relied upon or about the relationship between particular tendencies alleged and particular counts charged. During the course of that argument her Honour said that she would endeavour to complete the tendency direction "and perhaps the context direction" before the following morning, and perhaps try and email it to you, you both can see that before the addresses commence so that everyone is clear as to what the direction would be and the way the jury could use it and the way they cannot use it. So perhaps we can – if any of you wish to say anything when you see that. If it's not before your addresses, you will certainly see it before it's delivered in the summing-up so everyone will know and be in agreement as to what is being said. 1. That night, the Trial Judge provided to the parties a draft context and tendency direction by email. That document became MFI 14. The Crown Prosecutor told her Honour the following morning (Friday 13 December) before she commenced her address that she did not have it. The Trial Judge provided a hard copy of it at morning tea during the Crown's closing address but prior to the Crown dealing with the tendency issue. MFI 14 appeared to accept the four tendencies identified by the Crown in the amended tendency notice. 2. The Crown Prosecutor addressed the jury all that day. In the afternoon she dealt with the tendency evidence briefly. She referred to the four tendency areas contained in the amended tendency notice. 3. At 8.55am on Monday 16 December the Trial Judge emailed to counsel a further document headed "Tendency Direction". This document became MFI 16. The significant difference from MFI 14 was that the Judge reduced the four tendency areas to two. The first was roughly similar to paragraph (a) in the amended tendency notice. It was to assault young children sexually by inserting objects into or close to their anuses. The second was roughly similar to paragraph (b) which was refined to a tendency to assault young children physically by stepping or jumping on their stomach and by hitting them on the buttocks. At the start of proceedings on 16 December the Crown said that she had not received MFI 16 and defence counsel said that he had not looked at it in detail. The Judge did not inform counsel of the significant change made before defence counsel commenced his address. 4. After the morning tea adjournment, and when the jury had been sent home because a juror was unwell, the Trial Judge raised the change she had made in MFI 16. Shortly before the trial was adjourned on that day it was agreed that counsel should look at MFI 16 overnight and raise any matters with the trial judge the following day. 5. On the following day defence counsel said that the only thing that concerned him were references to count 11. That appears to have been satisfactorily explained and defence counsel said he had nothing further to say. Neither counsel appears to have given any consideration to the fact that the Crown had addressed on four areas of tendency. 6. Defence counsel completed his address but said nothing at all about tendency evidence. Her Honour then summed up to the jury. 7. In her summing up on 17 December the trial judge made clear to the jury that tendency evidence could be relied on in two areas only. The first was the tendency to assault young children sexually by inserting objects into or close to their anuses. Her Honour related that tendency evidence to counts 2, 4 and 8/9. The second tendency was one to assault young children physically by stepping or jumping on TF's stomach and by hitting MC or slapping or smacking or striking MC on her buttocks. This tendency evidence was related to counts 5, 6, 7, 10 and 11. The judge did not correct what the Crown had said in her closing address. Counsel for the Appellant sought no correction or redirection. 8. After the jury was sent out to consider its verdict on 19 December her Honour delivered her judgment on the tendency evidence. As the trial judge explained in her judgment, that was done to avoid a lengthy voir dire prior to the jury being empanelled and in circumstances where Christmas was fast approaching. (b) The tendency judgment 1. Consistently with her summing-up, the use of the evidence for tendency purposes was confined to the two areas referred to in MFI 16 ([30] above). The trial judge noted that there was no opposition to the Appellant being tried on all charges in the one trial and said that his counsel did not oppose evidence of "other acts" on the part of the accused which were not the subject of the tendency notice nor charged on the indictment. Further, defence counsel requested, and the trial judge acceded to the request, that no direction about tendency evidence be given at the time the evidence was led. 2. Her Honour considered first the submission that both the probative value of the tendency evidence and the possibility of prejudicial effect had been affected by the risk of concoction. It was the defence case that the allegations had all been made as a result of the fabrication and concoction by the complainants' mother AKF and/or their grandmother ST. 3. Her Honour first considered whether the evidence demonstrated that the risk of concoction and rehearsal as regards either complainant was reasonable and real or whether it fell into the category of speculative or conjectural risk (following Colby v R [1999] NSWCCA 261). 4. Her Honour considered the timing of the initial complaint by TF in relation to the circumstances of AKF (concerning her relationship at that time with the Appellant) and the location of her grandmother ST in Darwin together with the alleged motivation she had for bringing about the fabricated evidence, namely an allegation made against her husband Stephen by the Appellant, that Stephen had inappropriately touched TF. Her Honour also considered the age of MC and the timing of her visit to the doctor in relation to her access visit with the Appellant and what the doctor observed in terms of bruising on her. 5. Her Honour concluded from all this that the risk of concoction and rehearsal as regards both complainants was neither reasonable nor real but fell into the category of speculative or conjectural risk. 6. Her Honour considered that the evidence sought to be led as tendency evidence had significant probative value. When her Honour then considered each of the tendencies put forward she was of the view that tendencies (a) and (d) were really one and the same thing, that is, a tendency to assault young children sexually by the insertion of objects into their anuses. Further, her Honour thought that a tendency to act in the way asserted in (c) had not been established because there was only one allegation capable of proof beyond a reasonable doubt. That occasion formed the basis of count 11 and her Honour held that count 11 would fall within the tendency asserted in (b). 7. Her Honour concluded in relation s 101(2) that where there was no objection to a joint trial of all the counts the prejudicial effect of the evidence was slight or minimal. (c) Submissions 1. In this Court the Appellant submitted that, beyond the Sentencing Judge saying that "similarity is not required" although it "does assist in establishing significant probative value", her Honour did not otherwise address the questions of similarity in the acts or the circumstances in which they occurred in determining whether the evidence had significant probative value for the purposes of s 97(1) of the Evidence Act. This submission was directed to the second permitted tendency, namely to inflict violence on very young children. The Appellant accepted that the acts the judge permitted to be used to prove a tendency to assault very young children sexually (inserting objects in or near the anus) were relevantly similar, and that this first area of tendency evidence was properly allowed. 2. The Appellant submitted that the evidence of conduct permitted to prove a tendency to assault physically comprised such highly disparate acts as stepping or stomping on a child's stomach (counts 5, 6 and 7), smacking a child's bottom (count 10), and burning a child's leg with a lighter (count 11). The Appellant submitted further that it was not alleged that the conduct occurred in similar circumstances which otherwise established the probative value of the evidence. Reference was made to what was said by Hoeben CJ at CL (Adams & Hall JJ agreeing) in O'Keefe v R [2009] NSWCCA 121 at [60] and [63] about the generality of the tendency relied upon and how such generality would impact on the balancing exercise when having regard to prejudicial effect. 3. The Appellant submitted that when considering whether the tendency evidence was prejudicial, her Honour failed to consider the evidence of "other acts" which was admitted at the trial. The result was, it was submitted, that the jury was required to perform the highly artificial task of employing tendency reasoning confined so as to exclude extensive evidence of multiple other acts that were indistinguishable in nature from the acts in respect of which tendency reasoning was permitted. Counsel drew attention by way of comparison with what was said in Saoud v R [2014] NSWCCA 136, a case where there were no uncharged acts. 4. In relation to the second ground concerning the use made of the tendency evidence, the Appellant pointed to what the Crown said in her closing address: And the fourth tendency that the Crown relies on is that the accused has a tendency to sexually assault young children, namely to perform fellatio upon [TF], to force a broken hairbrush into [AF's] anus by holding the wrist of [TF] who was holding the hairbrush in her hand. And to place a hairdryer inside or around [TF's] anus and to place a hose inside or around [MC's] anus. (emphasis added) In addition the Appellant pointed to the fact that the Crown addressed on four tendencies whereas the Judge identified only two but did not correct the Crown's statements including the statement that the Appellant had a tendency to assault young children sexually comprising acts of fellatio. Accordingly, the Appellant submitted, the prospect that the jury may have employed tendency reasoning with respect to evidence of such acts in determining the counts relating to offences of sexual assault could not be excluded. 1. Whilst accepting that rule 4 applied because of the way defence counsel conducted the trial, the Appellant submitted that the use of the other evidence for tendency purposes caused a miscarriage of justice in that the Appellant may have lost a real chance of acquittal. 2. The Crown drew attention to the fact that the course adopted at the trial was agreed to in all respects by defence counsel. The Crown submitted that the real issue at the trial was the issue of concoction and fabrication particularly as a result of the intervention of the mother and grandmother of the complainant TF. The Crown submitted that counsel for the Appellant wanted the evidence of all the other acts which was led at the trial. His only concern was whether it was allowed to be relied on for tendency purposes as opposed to context. 3. The Crown pointed to r 4 and what was said in Zreika v R [2012] NSWCCA 44 at [80]-[82] and Potts v R [2012] NSWCCA 229 at [72] concerning attempts at an appeal to put forward matters not dealt with at the trial. 4. The Crown submitted that her Honour gave the jury clear directions about which counts the asserted tendencies could be used for. In relation to the first tendency her Honour had said it was only relevant to counts 2, 4 and 8/9. No complaint was made about the directions her Honour gave. The jury acquitted in relation to counts 8/9 and cannot, therefore, have taken into account the evidence on those counts to reach their verdicts on counts 2 and 4. 5. Similarly, in relation to the second tendency, her Honour confined it to counts 5, 6, 7, 10 and 11. The jury acquitted in relation to counts 7 and 11 and could not therefore have taken into account that evidence in respect of counts 5, 6 and 10. The Crown submitted that, if the second tendency should not have been permitted because it was at too high a level of generality, there was no miscarriage of justice particularly when the jury discriminated between the counts in their verdicts. (d) Consideration 1. It should first be said that the procedure adopted in relation to the tendency evidence was unsatisfactory. Although the parties seemingly knew by the time the Crown commenced her final address that the Judge was minded to permit the evidence that had already been led to be relied upon as tendency evidence the precise evidence that could be so used had not been identified. Indeed, the Crown had every reason to think from the contents of MFI 14 that the Judge was prepared to allow the four tendencies in the amended tendency notice. 2. The Crown addressed on the basis of the four tendencies set out in the amended tendency notice. The Judge only reduced the areas to two after the Crown had completed her address. When the Judge summed up to the jury she did not draw the jury's attention to the fact that, although the Crown had addressed in relation to four tendencies, her Honour had confined the evidence to two tendencies. Although the Judge's directions to the jury were clear, and there is no appeal in respect of them, jurors paying close attention to what had been said to them by the Crown and the Trial Judge might have wondered about the inconsistency in that regard. 3. Before saying anything further about the procedure followed (the complaint in Ground 1b), it must first be determined if her Honour wrongly allowed the evidence to be used as a tendency to assault young children physically. 4. As has been noted, the Judge spent most of her judgment on the issue of concoction and fabrication because that was the only matter seemingly argued by defence counsel. Nevertheless, where the use of the evidence as tendency evidence was opposed the Judge was required to determine whether the evidence had significant probative value and whether that probative value substantially outweighed any prejudicial effect. Although her Honour determined that the evidence had significant probative value she provided no reasons for that conclusion. She simply noted, when dealing with concoction and fabrication that the presence of similarity, whilst not required, assisted in establishing significant probative value. The difficulty was that, at those two points in her judgment, her Honour had not determined what tendencies she would allow. That tended to undercut her determination that the evidence had significant probative value as tendency evidence. 5. Moreover, her Honour's determination on the balancing exercise was also undertaken before identifying what tendencies were to be allowed. Prejudicial effect was dismissed on the basis that there was no objection to a joint trial on all counts, and on the basis that directions would be given during the summing up on how tendency evidence could be used. However, even if the matter of prejudice could be dealt with by directions, and in the ordinary case Sokolwskyji v R [2014] NSWCCA 55 suggests it cannot, the matter was compounded in the present case by the course of events I have earlier described, particularly the absence of any correction by the trial judge of what the Crown said in her address concerning four tendencies. 6. Whereas the first tendency relied upon had some specificity about it, inserting objects in or close to the anuses of young children, the second tendency had some measure of generality. It was described to the jury in the Judge's summing-up as a tendency to physically assault young children by stepping and/or jumping on [TF's] stomach and by hitting [MC], or slapping or smacking, striking [MC] on her buttocks as alleged in Counts 5,6,7,10 and 11, because of course Counts 5,6, and 7 relate to allegations by [TF] about the stepping or jumping on her stomach; Count 10 refers to an allegation of the assault of [MC] occasioning actual bodily harm, bruising to her buttocks area; and count 11 is an allegation alleging an assault upon [MC] involving a cigarette lighter and her leg. 1. It can be seen, therefore, that the physical assaults were (a) stepping and/or jumping on a child's stomach; (b) slapping, smacking or striking a child's buttocks; and (c) holding a cigarette lighter to a child's leg. Generally speaking, the closer and more particular the similarities are to the acts constituting the offence or offences charged, the more likely it is that the evidence will have significant probative value: O'Keefe v R [2009] NSWCCA 121 [60]; BP v R; R v BP [2010] NSWCCA 303 at [108]. However, that is not a necessary requirement: R v Ford [2009] NSWCCA 338; (2009) 201 A Crim R 451 at [38], [41], [44] and [125]. In Ford Campbell JA (Howie and Rothman JJ agreeing) said at [38] that one of the errors made by the trial judge in that case was: …the judge's apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to section 97(1), is 'a tendency to act in a particular way'. 1. In Hughes v R [2015] NSWCCA 330 the Court said: [182] Thus, in summary, the law in this State is that whether the Court thinks that evidence has significant probative value for the purposes of s 97 involves an assessment by the Court as to whether a jury could treat it of importance in supporting an inference of guilt of the accused on the count charged. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternate (sic) explanation consistent with innocence. [183] In making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which the person is charged. This was emphasised by the Court in Saoud where Basten JA observed, at [44], that "the nature of the similarities will depend very much on the circumstances of the case". 1. Although the acts in the three categories identified above at [58] differ from one another, they are all examples of physical assaults of young children as the Crown alleged. Each is an act which the jury could treat of importance in supporting an inference of guilt on the counts to which that particular act was not otherwise referable. For the issues in relation to counts 5, 6, 7, 10 and 11 they were of significant probative value. 2. The balancing exercise in relation to prejudice was an easier one because the evidence of these matters, as well as the evidence of uncharged acts, was led without objection. The cross-examination by defence counsel suggested a forensic reason for not having objected to this evidence. Any prejudice could arise only from the jury being able to consider each such act as a tendency to act in a particular way on a count in respect of which that evidence had not been led. In that way, the Appellant's position was better protected by limiting the way the evidence could be used. In my opinion, there was no error in the Trial Judge's determination that the evidence could be relied upon as tendency evidence. 3. The present case can be distinguished from Sokolwskyji. The admissibility of the tendency evidence in that case was disputed. There was undoubted prejudice if it was led as is made clear at [48]. In the present case the evidence was led unopposed in relation to each count. It was only the use of the evidence for other counts that was the issue. As has been noted, it was not opposed as tendency evidence because of any lack of similarity of the acts to one another but only on the basis of concoction and fabrication. Defence counsel said nothing about the use of the evidence as tendency evidence in his address. The Judge gave clear directions as to its use, and those directions are not criticised nor challenged. 4. It is instructive to examine the verdicts on the counts to which this tendency is said to be relevant. The jury were told that it related to counts 5, 6, 7, 10 and 11. Mr Gartelmann for the Appellant said that it also applied to count 3 because that is an assault count also. Count 3 was a technical assault, that is, the touching of TF's hand while the Appellant assisted her to insert the hairbrush into AF's anus that constituted count 2. The jury convicted on count 3 consistently with the conviction on count 2. 5. Counts 5, 6 and 7 were the three counts involving the Appellant jumping on TF's stomach. The fact that the jury acquitted on count 7 but convicted on counts 5 and 6 points strongly to the fact that the jury did not misuse the tendency evidence. In any event, these three counts involved the same or a very similar act. As between those counts the evidence was of significant probative value which easily outweighed any prejudice from the inclusion of the two other categories of assault evidence. In any event, the jury acquitted on count 11 (the cigarette lighter count), with the result that this evidence could not have been used to convict on counts 5 and 6. 6. The remaining count was count 10. Determination of that matter involved a consideration of the evidence of MC, AKF, Dr Shaker, the Appellant and Dr Wearne (the paediatrician), together with the contemporaneous photographs. The detail of this is provided later when Ground 4 is considered. An issue on count 10 was the assertion by the Appellant that he only smacked MC once with her nappy on and his explanation for some of the bruising, namely, that she had a fall when she climbed out of her cot. When assessing those matters the jury may well have used the tendency evidence to reject the Appellant's explanation. 7. In my opinion, her Honour correctly determined that the second category of evidence was tendency evidence, the probative value of which substantially outweighed any prejudicial effect it may have had on the Appellant, and correctly instructed the jury on its use. For reasons which follow I do not, in any event, consider that a miscarriage of justice resulted from the use to which the evidence was put nor from the procedures followed at the trial. 8. The matters referred to in paragraphs [25], [26], [27], [32], [33] and [34] above concerning defence counsel's conduct at the trial, together with the acknowledgement by Mr Gartelmann at the hearing of this appeal, mean that in the first place r 4 applies. What is now complained of suggests a very different approach from that which was adopted at the trial. In that way, it can be understood why there was different emphasis in the judgment of the Trial Judge on the tendency evidence and why, to some extent at least, procedural matters unfolded in the way they did. The question is whether there has been a miscarriage of justice. 9. A number of matters, some mentioned already, point to there being no miscarriage of justice by reason of the tendency evidence. First, evidence of uncharged acts was led without objection as context evidence. In answer to a question from the Trial judge about whether the uncharged acts concerned other acts of fellatio, counsel for the defence responded: Yeah other acts of fellatio. The Crown will be leading, what I apprehend is, context evidence. Whilst we resist tendency, there is a broad array of allegations which pertain to - would come under the heading of cruelty to children such as trying to put the child in a bin or a garbage bag, locking two children in a boot. The exchange then continued: CROWN PROSECUTOR: …The child does make an allegation in one of the interviews that the father wrapped - this is {MC] "He wrapped her up"-- DENNIS: "In sticky tape, sticky tape all over my mouth, sticky tape all over me, tried to put me in the oven, flushed my head down the toilet". 1. The interviews with the complainants contained other material of physical assaults such as the Appellant kicking TF in the neck (Interview 2/7/08 A 43 and 67) and throwing MC in a hot shower and making it hotter and hotter while she was in it (Interview 12/6/12 A 123). It is not now contended that this evidence should not have been led or allowed. The evidence was not qualitatively different from the evidence of physical assaults relied on as tendency evidence. 2. Secondly, there was no opposition to all the counts being heard together. That necessarily resulted in all the evidence pertaining to each count being heard together. During argument Mr Gartelmann agreed with Adamson J, correctly in my opinion, that the giving of a tendency direction could, in the circumstances of the evidence being led, only have minimised the risk of the jury wrongly using all of the evidence as tendency evidence. Any prejudice to the Appellant by reason of the admission of all the evidence in a trial on multiple counts was thereby reduced. That was particularly so where there is no criticism of the Judge's directions. 3. Thirdly, as noted earlier, the jury's ability to distinguish between the counts in the verdicts it reached points strongly to the conclusion that the jury heeded the directions given to them and did not thereby misuse the evidence. The matter is demonstrated most clearly by the acquittal on count 7. 4. Finally, whilst acknowledging that the way the trial proceeded was unfortunate and unsatisfactory, the fact that the Judge did not refer to what the Crown had said regarding tendency evidence had the considerable advantage of not reminding the jury some four days later of the conflict in what was said. In addition, the jury was told in that summing-up that they must apply the law as her Honour directed them. If the jury remembered that the Crown had said things about tendency evidence inconsistent with what the Judge directed them, no note was sent to the Judge about the matter. All of that suggests that the way the trial proceeded did not disadvantage the Appellant. 5. I would reject Grounds 1a and 1b. Ground 3: Unreasonableness of the verdicts for counts 5 and 6 1. Counts 5, 6 and 7 each related to an alleged act of stepping/jumping on TF's abdomen. The jury returned verdicts of guilty in respect of counts 5 and 6, and a verdict of not guilty in respect of count 7. Counts 6 and 7 charged assault occasioning actual bodily harm because on the occasions that constituted those counts the complainant said in substance that she defecated as a result of the Appellant's acts. 2. Count 5 was alleged to have occurred after 1 April 2006 when TF began sharing a room with E following MC's birth and before 15 June 2008 when TF went to Darwin. The evidence was to be found in TF's 13 June 2012 interview. The offence is said to have occurred when TF was sleeping in the bottom bunk and the Appellant would stand on her tummy whilst he kissed E (in the upper bunk) good night. 3. Count 6 was alleged to have occurred after 5 March 2005 when the family had moved into Quakers Hill with a playroom and before 1 April 2006 when MC was born. The evidence was contained in TF's interview of 2 July 2008. It was alleged that the Appellant pushed TF on the floor in the playroom when it was her room and stepped on her belly causing her to defecate. 4. Count 7 was alleged to have occurred after 1 July 2007 and before 15 June 2008 when TF went to Darwin. The evidence was contained in TF's 13 October 2011 interview. TF said she was in her room but the Appellant grabbed her by the arm and took her into the hallway where he put her on the ground and stood on her tummy. 5. TF was interviewed on 27 June 2008, 2 July 2008, 13 October 2011 and 13 June 2012. 6. The Appellant drew particular attention to the time of reporting each of the incidents and to the lack of supporting evidence from ATF or ST after the complaint. In the Appellant's written submissions it was said that the jury did not accept TF's evidence in relation to what occurred that constituted count 7 because they found the Appellant not guilty of both the offence charged and the alternative of common assault. However, at the hearing of the appeal, the Appellant accepted that the complainant's evidence of this event was vague as the Crown asserted. For example, the complainant had difficulty isolating the last time the Appellant jumped on her – that was how this count was particularised. 7. The principles in relation to unreasonable verdicts have been comprehensively analysed in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 especially at [23] and [34]. Subsequently, in R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 Simpson J (with whom McClellan CJ at CL and Latham J agreed) said: [135] …But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open "upon the whole of the evidence". It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury's thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the Complainant's veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris). [136] In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: … 1. In Dungay v R [2010] NSWCCA 82 Giles JA (RS Hulme and Latham JJ agreeing) said: [9] Gleeson CJ and Hayne and Callinan JJ said in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34], in relation to asserted inconsistency of verdicts, that "[t]he ultimate question concerns the reasonableness of the jury's decision". Unreasonableness is determined according to the test in the joint judgment of Mason CJ and Deane, Dawson and Toohey JJ in M v The Queen (1997) 191 CLR 439 at 493, namely, whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Their Honours said in MFA v The Queen at [35] that this test "must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence". [10] In TK v R [2009] NSWCCA 151 it was pointed out that M v The Queen also recognised that a verdict must be set aside if on any other ground there was a miscarriage of justice. It was suggested that where the unreasonableness is because of asserted inconsistency of verdicts there is a "new dimension added to the conventional M test", going beyond the quality of the evidence and extending to the significance for the guilty verdict of the verdict of acquittal: see at [119]-[135] per Simpson J, Latham J agreeing at [204]. The wider inquiry "include[s] matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals": at [128]. [11] It is not necessary to explore whether there is truly an addendum to the test derived from M v The Queen, or only an additional dimension within that test. Consistency or inconsistency of verdicts will always come down to what was open to the jury upon the whole of the evidence. Examination of the evidence, with an appreciation of how it was presented and left to the jury, will reveal whether there is a rational explanation for a verdict of guilty on one count and a verdict of not guilty on another count. In MFA v The Queen, for example, it was held at [36] that there was an explanation in the evidence of the differences between the verdicts, and that it was therefore open to the jury to be satisfied beyond reasonable doubt of guilt on two counts notwithstanding unwillingness to convict on the other counts. [12] If a rational explanation cannot be discerned, it can be said that it was not open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt in coming to the guilty verdict, or it can be said that there was otherwise a miscarriage of justice. The formulation will rarely be of moment, and is not in the present case. Ultimately, as Wood CJ at CL pointed out in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [237], on reviewing the entirety of the case the court may maintain a comfortable satisfaction as to the guilty verdict upon the evidence separately considered concerning it. 1. In Osland v R [1998] HCA 75; (1998) 197 CLR 316 McHugh J said: [120] When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory. 1. Although the three incidents in these counts involved similar behaviour on the part of the Appellant they were similar incidents at different locations and at different times. Count 5 occurred when TF slept in the bottom bunk and E slept in the top bunk. Count 6 occurred in the playroom at Quakers Hill and did not involve E. Count 7 took place in the hallway where the Appellant had placed her. 2. I have read the interviews and the cross-examination. It was clearly open to the jury to convict on any one or more of the counts. There was no particular reason why the jury should necessarily be satisfied beyond reasonable doubt of all or any of the counts. None was connected to the others except that the Appellant performed a similar act on her stomach. Certainly TF was less certain about the events that comprised count 7 in her interview. She was firm in her evidence in cross-examination regarding the events comprising counts 5 and 6, and she was definite that neither her mother nor her grandmother told her to tell the interviewer about these matters. The jury had the advantage of seeing the interviews and observing TF when she was cross-examined. The jury also had evidence from Dr Marks who provided a medical explanation for the defecation and for the fact that even a man of the Appellant's size and weight would not necessarily leave external bruising on the child's stomach. 3. Mr Gartelmann said that the issue was not one of credibility but of whether the evidence was sufficient to establish the events beyond reasonable doubt. But credibility and reliability are both significant as the jury was told by the Trial Judge. If the jury were satisfied TF was both credible and reliable her account of what happened on those two occasions was capable of proving the matters beyond reasonable doubt. 4. The delay by TF in reporting these incidents was a matter for comment by defence counsel in his final address. He pointed out to the jury that the events that make up count 5 were not raised by TF until her fourth interview, and the events making counts 6 and 7 were only raised in her second interview. They were matters that might have affected the credit of TF. Nevertheless, they were not determinative matters at least for counts 5 and 6. A late complaint, even for an adult, is only one matter to be taken into account. 5. There is no legal or technical inconsistency by reason of convictions on counts 5 and 6 on the one hand and an acquittal on count 7 on the other hand. That acquittal does not make the verdicts on counts 5 and 6 unreasonable. It is enough to note the uncertainty in TF's evidence about the events of what was supposed to be the last occasion on which the Appellant stood on her stomach to understand why the jury may not have been persuaded beyond reasonable doubt on that count. 6. I would reject this ground. Ground 4: The verdict in respect of count 10 was unreasonable 1. This count concerned an allegation by MC in her interview of 12 October 2011 that the Appellant put her on a change table where he took off her nappy and smacked her "bum" (as she said). He did this because she broke her brother's toy car. 2. The complainant's mother gave evidence that the day after MC returned from her access visit with the Appellant on 7 October 2011 she was covered in bruises which were half way down her back, all over her bottom, on her hips and on her belly. The complainant's mother and the police took photos of the bruising on 8 October 2011. 3. In cross-examination MC agreed that during the access visit she had fallen down after climbing onto some chest of drawers and got a big scrape to her back as a result of the fall. She agreed that some of the bruises her mother photographed had come from that. 4. The paediatrician who examined her on 13 October 2011 gave evidence of faded bruises to the back and buttocks. Collectively "they were far in excess" of what would normally be expected from usual childhood activity. They could have been caused accidently or non-accidentally or a combination but on balance it was more likely non-accidental. The bruises to the back were consistent with a fall from a chest of drawers. 5. The Appellant gave evidence that he smacked MC once on the bottom whilst she was wearing a nappy and it was not very hard. He denied it caused any bruising. He said she had fallen of the chest of drawers. 6. From this evidence the Appellant submitted it was not proved beyond reasonable doubt that the Appellant's act of smacking MC occasioned any injury constituting actual bodily harm. The Appellant submitted that it would be necessary to establish that a particular bruise was caused by the act of smacking on the bottom. The Appellant submitted that an examination of the whole of the circumstances gave rise to a reasonable doubt as to his guilt in respect of Count 10. 7. The Crown case in respect of this count was that when MC was staying with the Appellant in September/October 2011 he punished her for breaking her brother's car. He put her on the change table, took off her nappy and repeatedly hit her (Crown opening T 79). MC had spoken of the incident in her first interview of 12 October 2011 where she described the Appellant smacking "my bum" (A 111). In her second interview of 12 June 2012 MC demonstrated the hitting by the Appellant by hitting herself, and when asked where he hit her she said "Everywhere on me" (A197). 8. MC's mother, AKF, gave evidence that the day after she picked MC up from the airport following the visit to the Appellant, when she was bathing her, she saw that she was covered in bruises half way down her back, all over her bottom, on her hips and on her belly. They were dark and blotchy and there were multiple bruises. She took photos which became Exhibit 6. She asked MC about the bruises and MC said that "My daddy just smacked me" with his hand because she was naughty. AKF said the bruising was not there when AKF handed MC to the Appellant. She took MC to be examined by a doctor at Bendigo (Dr Issa Shaker) and took her to the police station where more photos were taken. 9. In cross-examination MC said: 1. She didn't remember her brother's car breaking nor being told by the Appellant that she was naughty for breaking it; 2. She didn't get smacked after her brother's car broke; 3. She remembered when she went home her mother took some photos of some bruises on her; 4. She did not remember falling off drawers at her father's house nor at her mother's house and she did not remember getting bruises from jumping off drawers at her mother's house; 5. Sometimes she would climb out of the cot and down some drawers at her father's house; 6. She got a big scrape on her back from falling down after climbing out of the cot and that was where "some of the bruises" came from that were photographed by her mother; 7. She remembered telling the policeman that the last time she stayed with her father he smacked her on the arm; 8. Her father did not make the bruises anywhere on her; 9. She fell off the slide at her father's house and that caused "one bruise" about the size of 20 cents;. 10. The bruises she had were not made by her mother, her grandmother or her mother's boyfriend Michael, and none of those persons smacked her. 1. A statement by Dr Issa Shaker was read. Dr Shaker had examined MC on 8 October 2011 and noted bruising on both arms, both hips, both buttocks, abdomen and marked bruises on lower back. 2. Dr Wearne, a paediatrician, examined MC on 13 October 2011. He observed faded bruises on her back and buttocks. He was shown photos taken by AKF and the police on 8 October. His evidence was this: Q. The bruising shown in the photographs reported to have been taken on 8 October 2011 you state could either be accidental or non-accidental in origin, is that correct? A. That is correct. Q. You go on to say or it could be a combination of the two? A. Yes. Q. Some accidental, some non-accidental, is that correct? A. That's correct. Q. You go on to say however the extent of the bruising suggests to you that on balance it's more likely to be of a non-accidental origin or in other words child physical abuse, is that correct? A. That is correct. Q. Can you explain, please, how you come to that conclusion, Dr Wearne? A. If each bruise is taken separately I could not say if this was accidental or non accidental. However in total, from the number of bruises in this child and their extensiveness and their number, I would have to say that knowing children's bruises from normal childhood activities this was far in excess of what I would normally expect even in a very active, healthy three year old. 1. In cross-examination he gave this evidence: Q. Photograph 4 is a photo of the child from the back including an image of the child's buttocks and lower back, is that correct? A. That is correct. Q. Sir, if I could ask you to look immediately above the right buttock. A. Yes. Q. Sir, do you see any linear bruises in that region? A. Not well in this view. They're a series of irregular bruises and I wouldn't describe that as a linear bruise, no. Q. Do you see anything of a linear nature above the left buttock? A. There is - if you take about the midpoint between the buttock crease and the left side of the child's body there is a bruise with a more or less straight upper edge, I see that. Q. Are you able to comment whether or not that is consistent with a child impacting with the hard edge of a blunt surface, such as a chest of drawers or part of a chest of drawers? HER HONOUR: That particular one on-- DENNIS: Yes. WITNESS: Bruises arises as a result of blunt trauma and it's conceivable if the child went against a straight object that could be of accidental origin, yes. DENNIS Q. In the lower back region above the buttocks there is a number of bruises, correct? A. Yes, yes. Q. Are any of those bruises consistent with this scenario, that the child falls from a chest of drawers that are perhaps as tall as 1 or 1.2 metres and lands on a hard object such as a toy? A. I mean that is possible, yes. Q. Could I ask you this, in terms of the shapes of all of the bruises that you've seen is there anything that - over and above what you have already told us is there anything about the shapes of the bruising that gives any indication how they were inflicted or how they were suffered? A. No. In this series of bruises in films one to 11 I could find no particular imprint that would allow me to make any comment about the nature of the blunt force which had been applied. Q. So for example there is nothing about the bruises themselves that tells you that this must have been produced by a smack from an adult male hand? A. No. But what I said before is that I find the number and the extent of the bruises make it unlikely, in my opinion, to be totally explained by accidental injury. 1. The Appellant gave evidence that he smacked MC once with her nappy on because she broke her brother's car. He denied that he had smacked MC "all over". He also gave evidence that she had a fall when she climbed out of her cot and slide down the front of a chest of drawers. From that fall he said (T 544): She had a bruise on her from that - on her back. Q. You noticed something on her back did you? A. Yes I did. Q. What did you notice? A. She had some small scrapes where I'd assume she slipped down, down the front of the drawers or down the drawer. … Q. Sir, just before the break, I was asking you about - or you were telling us about [MC's] fall and you told us something about some marks on her back? A. Yes that's right. Q. Did you notice anything else? A. She had a bruise as well from sliding down the drawers I assume, probably. HER HONOUR: Well perhaps if you could DENNIS: I don't press that part. Q. Just what you saw not what you assume. What did you see? A. Yeah just a small bruise. 1. It may be accepted that the evidence given by MC in cross-examination tended to weaken the effect of the material in the two interviews that formed the evidence in chief. If there had been nothing else, it would not be difficult to conclude that the verdict on that count was unreasonable because of the requirement for proof beyond reasonable doubt. However, the evidence went much further. The extensive bruising was observed and photographed very shortly after MC was returned to her mother. She was examined by a doctor that day who made similar observations to those MC's mother gave evidence about. The paediatrician concluded that all of the bruising could not have come from accidental causes and that conclusion remained even if the jury accepted from his evidence in cross-examination that some of the bruising could have come from a fall. Similarly, even if the Appellant's evidence was accepted about MC falling from the cot and scraping her back on the chest of drawers, that explanation did not account for much of the bruising that was observed. 2. The jury were entitled to use the tendency evidence in the second category when assessing the Appellant's evidence that he smacked MC once with her nappy on. The jury were entitled to accept the mother's evidence, despite her credibility problems highlighted in cross-examination concerning her lies to the police at the time of AF's death, that MC did not have the bruising when she was handed over to the Appellant. Acceptance of such evidence was made easier by the evidence of MC that neither her mother, her grandmother nor her mother's boyfriend Michael had smacked her, by the mother's immediate reporting of the matter and by the absence of any evidence to explain all of the bruising. The jury saw the interviews with MC and observed her cross-examination. 3. I am comfortably satisfied from reading all of the material that it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of count 10. 4. I would reject this ground. Conclusion 1. I propose the following orders. 1. Leave to appeal granted. 2. Appeal dismissed. 1. ADAMSON J: I agree with the orders proposed by Davies J, for the reasons given by his Honour. In respect of grounds 3 and 4, I am satisfied, in all of the circumstances, that the verdicts of guilty in respect of counts 5, 6 and 10 were open to the jury. I am satisfied that the evidence established beyond reasonable doubt the appellant's guilt of these offences. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2016