The Queen v W[1998] QCA 90

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 476 of 1997

Brisbane

[R v. W]

THE QUEEN

v.

W

(Applicant) Appellant

Pincus JA

Thomas J

Dowsett J

Judgment delivered 12 May 1998

Separate reasons for judgment of each member of the Court;  Pincus JA and Thomas J concurring, Dowsett J dissenting on appeal against conviction.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: Criminal Law - Series of sexual offences over 8 years - Alleged incompetence of counsel - Refusal to discharge jury when counsel replaced during trial - R v Green [1997] 1 Qd R 584 followed - Fresh complaint evidence - Complaint “fresh” in relation to some and “late” in relation to others - Whether special directions necessary - Evidence of continuity of sexual relationship between charged acts - Basis of admissibility of such evidence - Whether directions on use of such evidence (e.g. not to use it as showing propensity) necessary in all cases - Sentence.

Counsel:  Mr A. Rafter for the applicant/appellant

Mr C. Chowdhury for the respondent

Solicitors:  Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:  24 March 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12 May 1998

I have had the advantage of reading the reasons of Thomas J. and those of Dowsett J.;  the nature of the evidence in the case is explained in the reasons of Thomas J. and I propose to deal with the issues using the categories adopted by Thomas J.

Refusal to discharge jury

In Green [1997] 1 Qd.R. 584 the treatment of allegations of incompetence of defence counsel is discussed in a way which I have, with respect, found helpful.  Here, the argument was that the defence counsel who began the trial (and who was ultimately dismissed) did not put the defence case properly to the witnesses for the prosecution.  In Green reference is made to Birks (1990) 19 N.S.W.L.R. 677, which gives some support to the view that incompetence must ordinarily be "flagrant" to make the trial a miscarriage of justice.  Birks is also referred to in the decision of the Victorian Court of Appeal in Miletic [1997] 1 V.L.R. 593 at 598.  After emphasising the difficulty of obtaining a new trial on the ground of allegedly ill-advised decisions taken by an accused’s counsel, the Victorian Court remarked:

"An appellate court will nevertheless intervene if it is satisfied that something occurred at the trial which has led to a miscarriage of justice.  It may be that the material before the court will demonstrate that there has been such a defect of judgment or neglect of duty on the part of trial counsel that the court, on appeal, is left with the view that justice has miscarried.  As Brooking J. said, in his dissenting judgment in R v. Sarek, at 987, there may be circumstances which make it appropriate for the court to ‘interfere to protect an accused man from his own counsel’."

There will be cases in which, flagrant incompetence not being established, the conduct of the defence might yet be such as to lead to the conclusion that there has been a miscarriage of justice.

But in the present case there is no miscarriage shown;  as Thomas J. points out, the allegation of incompetence could not be "properly determined without adequate investigation of the relationship and dealings between client and adviser".  I find it difficult to understand how this could ever occur, absent a waiver of privilege.

I agree with the conclusion of Thomas J. that the circumstances relied on under grounds 1 to 6 do not warrant the conclusion that the trial was unfair or that any miscarriage of justice occurred.

Violence towards the complainant’s mother;  fresh complaint evidence

With respect to the former topic, violence towards the complainant’s mother, I agree with the reasons and conclusion of Thomas J.

The question of fresh complaint raises a more difficult issue.  Thomas J. refers to the decision of this Court in W [1996] 1 Qd.R. 573, in which it was held that the admissibility of a complaint by a person accusing another of sexual offences could be tested by asking the question whether:

"having regard to the circumstances surrounding the complaint, including the time which has elapsed since the alleged commission of the offence, the complaint is capable of supporting the credibility of the complainant as a witness"? (575) 

That test was preferred to: 

was the complaint made "at the earliest reasonable opportunity?" (575)

This conclusion may be difficult to reconcile with what was said in Suresh [1998] H.C.A. 23 (3 April 1998).  The offences there charged were said to have been committed over a period ending in March 1992 and there was evidence that in about October 1992 the complainant told school friends that the appellant had interfered with her sexually.  The Supreme Court of Western Australia in Suresh (1996) 16 W.A.R. 23, held that evidence to be inadmissible but dismissed an appeal against conviction on the ground that there was no miscarriage of justice.  Rowland J. who dissented was "not convinced that the evidence . . . was not admissible".  Relying upon what was said by Gaudron J. in M (1994) 181 C.L.R. 487 at 515, the majority in the Supreme Court held the evidence inadmissible applying the "first reasonable opportunity" test:  see especially p. 35G.  When the case went to the High Court, Gaudron and Gummow JJ. said that (4):

". . . evidence of complaint is only admissible if it is evidence of early complaint or, as is usually said, of ‘recent complaint’ ".

McHugh J. said (17):

"It is difficult to accept that the evidence was properly admissible as evidence of a recent complaint having regard to the six month delay and the apparent existence of reasonable opportunities to make a complaint".

Kirby J. said (51, 52):

"By the authority of this Court, whether such complaint is made ‘at the earliest reasonable opportunity’ is an important consideration in determining its admissibility . . . I could not dissent from the view which Anderson J. ultimately reached in the court below that ‘[o]n any view of the facts, there was ample ‘reasonable’ opportunity for complaint to be made in this case shortly after each group of offences occurred’.  The fact that the omission to avail herself of such opportunities may have been understandable in the circumstances would not have removed the significant obstacle to the exceptional admission of the evidence of complaint, correctly expressed by the majority in the Court of Criminal Appeal".

It should be added that Kirby J. implied that he harboured some reservation with respect to the correctness of the decision below, on the admissibility point.

It would be imprudent to rely any longer on the assumption that W correctly states the law on this point.  It is of particular importance to note that the High Court in Suresh appeared to accept the way in which the case had been decided below;  there, as I have explained, the "earliest reasonable opportunity" test was applied against admission of the evidence, although Anderson J. with whom Franklyn J. agreed,  said of the complainant in Suresh (1996) 16 W.A.R. 23:

"It may be assumed that she was quite inexperienced in such matters and that [Suresh’s] behaviour bewildered her and left her in a state of not knowing what to do.  He told her that she must not say anything.  No doubt she was, at her age, accustomed to do what adults told her to do.  That she put up with his conduct for a time before making a disclosure and then that she made it to a school friend is not altogether surprising.  But whatever may have been the reason why this child said nothing to her mother or father or to her siblings, or indeed to any of her school friends for nearly two years until seven or eight months had elapsed after the last offence charged in the indictment, and however good and understandable her reasons may have been for keeping these events to herself, the rule under which this kind of evidence is exceptionally admitted still contains the requirement that the complaint must be made ‘. . . at the earliest reasonable opportunity’ ".  (35) 

Here, the offences were said to have been committed at times beginning in February 1989, the first complaint being some seven years later.  The difficulty is that the complaint was admitted with respect not only to recent offences, but also as to those which occurred years before.  Mr Rafter, who appeared for the appellant, did not press the argument that the evidence of complaint should not have been admitted;  it appears that he did so because there was no objection to it and because Suresh had not when we heard the appeal been decided by the High Court.  The difficulty about declining to give effect to the objection now is that the evidence may well have been admissible on the basis of W, which was followed in King (1995) 78 A.Crim.R. 53 at 60,61.  Since Suresh has I think adopted a view of the matter inconsistent with those two cases, it appears that we must give effect to the objection which might well, but for them, have been taken.

On that basis, I hold that the evidence of the complaint in October 1996 was admissible only with respect to recent offences and was not admissible with respect to offences committed in 1989 and 1991;  the appellant was found guilty of those offences.  I leave for the moment the question of the effect of that wrongful admission of evidence.

Mr Rafter’s real argument, on this aspect, was that the judge did not give adequate directions to the jury with respect to the relevance of complaints.  The judge told the jury in effect that the complainant had made a complaint of rape or attempted rape "some comparatively short time after she said the incident occurred".  That was capable of being regarded by the jury as a reference to the evidence of a number of witnesses:  G V Warren (135), J A Robertson (132) and R A Fraser (92).  Each of these people gave evidence of complaints made by the complainant, all fulfilling the description given to them by the judge.  His Honour went on to explain in effect that evidence of that sort was not in itself evidence that the offences had occurred.  His Honour said, "After all, it’s only what she said happened".  He went on:

"The purpose of that evidence is to show consistency of conduct.  It can only be used for this purpose."

His Honour then, as I understand the summing-up, illustrated this proposition by reference to evidence given by R.  The judge also explained the whole matter again - i.e. that the relevance of the evidence was as showing consistency of conduct.

The criticism made by Mr Rafter was that the judge’s explanation was confined to R’s evidence of fresh complaint.  Although it is capable of being read in that way, I should be surprised if the jury so understood it.  Counsel relied upon Jones (1997) 71 A.L.J.R. 538 in support of the view that, if the judge fails to tell the jury what is the relevance of evidence of fresh complaint, that may be a ground for a new trial.  The court said in Jones that fresh complaint:

". . . is not evidence of the facts complained of, but of the consistency of the conduct of the prosecutrix with her account in the witness box . . .".

It is my opinion that the judge made this clear to the jury and that there was no inadequacy in the judge’s directions on the point.

I return, then, to the problem created by the admission of evidence of fresh complaint with respect to offences which were years old.  I have indicated that in my opinion the absence of objection below is not necessarily a basis upon which the Crown can resist the appeal, as to this ground.  But I have come to the conclusion that if the judge had taken the course which Suresh appears to require and had confined the relevance of the evidence of complaint by telling the jury to consider it only with respect to the recent offences, it could not have made a difference to the outcome.  As is often emphasised, recent complaint goes to credit;  if the jury accepted the evidence of recent complaint, as generally boosting the complainant’s credit, it would have made little sense to confine the boost to the complainant’s evidence about the recent offences, the jury being no doubt told, if necessary, that evidence of complaints about old offences could not be admitted.  The result is that, while I am of the view that evidence of complaint to others should not have been admitted with respect to counts 1, 2 and 3, there was no substantial miscarriage of justice ensuing from the wrongful admission of evidence.

Motive for false accusation

The judge took the course of including in his summing-up a fairly elaborate discussion of the opposing submissions made by counsel, on the facts.  In discussing the Crown’s submission, his Honour invited the jury to ask themselves where there was an allegation that the complainant had made false accusation, "what motive would that person have for making such false allegations?".  His Honour went on to stress that sometimes false accusations are "made for reasons which are not apparent to the Court" and he elaborated on and emphasised that proposition.  Mr Rafter said that these directions were erroneous and that the jury should have been directed in accordance with statements in Uhrig (N.S.W. Court of Criminal Appeal, 24 October 1996) as referred to in Palmer (1998) 72 A.L.J.R. 254 at 258.

The discussion in the principal judgment in Palmer (that of Brennan CJ, Gaudron and Gummow JJ,) which included discussion of Uhrig, concerned the propriety of cross-examination by counsel for the prosecution, not that of judge’s directions.  What happened in Palmer was that, the accused being charged with sexual offences against a young girl, his counsel cross-examined the complainant suggesting a motive for lying.  Prompted by this, counsel for the prosecution cross‑examined the appellant on the basis that he could put forward no reason why the complainant should have made up the allegations against him.  That cross‑examination, the High Court held, should not have been allowed since:

". . . the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross‑examination might be inferred is generally irrelevant".  (257)

The Court recognised however that:

"a firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry".  (258)

In Palmer, however, the Court held that the directions relied on by the Crown as having neutralised the prejudicial effect of the cross-examination were not capable of doing so.  (259)

Although Palmer had to do with the propriety of a certain line of cross‑examination of the accused, it appeared to embrace a wider principle and to approve the decision of this Court in G [1994] 1 Qd.R. 540, holding that it is wrong for a judge to give a direction implying that, ordinarily, a young complainant in a sexual abuse case is unlikely to invent and adhere to the allegations (257).  In some context a judge who poses for the jury the question:  "Why should this complainant lie?" might be taken to imply that the judge thinks it improbable that the complainant would lie. 

Whether or not anyone turns the jury’s attention towards that topic, a jury may well give consideration to it and may ponder the problem of why a complainant in a sexual case, or indeed any other witness for either side, might invent his or her evidence.  There is nothing wrong with that approach;  what must be avoided, in my opinion, is a summing-up which suggests to the jury that unless they can think of a good reason why a person complaining of an offence might make up his or her story they must be inclined to believe it, or one which says in effect that there is in truth no good reason to think the complainant has a motive to lie.

In the present case, although it would have been better if the judge, and indeed the prosecutor in his address, had left the subject alone, it does not appear to me that what the judge said about the complainant’s motives to lie could have misled the jury.  His Honour’s emphasis upon the proposition that there could be unknown reasons why the complainant might lie was I think enough to put the jury on the right path.

I would reject this ground.

Directions about uncharged acts

This is another case in which the problem of the way in which allegations of repeated sexual interference over a period of time are to be treated in the courts is raised.  Section 229B of the Criminal Code was intended to be at least a partial answer;  but since the construction of it adopted in KBT (1997) 72 A.L.J.R. 116, the section may have little practical utility.

Left to itself, any jury would be more inclined to think that a complainant was indecently dealt with on a specific, charged occasion if satisfied (perhaps by an admission) that the accused often or habitually behaved in a similar fashion.  But Mr Rafter points out that the jury must be directed to avoid that approach and use the evidence of uncharged offences only as probative of the existence of a sexual relationship. 

All evidence in a criminal prosecution is admissible only if it throws light on the correctness of the Crown allegation;  so I take it that the evidence of the existence or non‑existence of a sexual relationship is admitted as relevant (directly or indirectly) to the question of guilt or innocence.

The distinction on which the appellant relies is in my opinion between these two propositions:

1. This evidence shows that the accused used do the sort of thing which is charged;  this may enhance the probability that he did it on the specific occasion charged.

2. This evidence of conduct of the same sort as is charged shows the existence of a sexual relationship between the parties;  this may enhance the probability that the accused is guilty of the specific offence charged.

At least in the present case, there does not appear to me to be any likelihood that the failure to make this distinction had any impact on the outcome of the trial.  Had the judge endeavoured to make it and the jury gained some understanding of it, I cannot think this could have helped the appellant.  If there was a failure on the part of the trial judge in this respect, then in my view the proviso should be applied to it.

Longman direction

On this aspect I agree with the reasons of Thomas J.

Sentence

I agree with the reasons of Thomas J.

I agree with Thomas J. that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 12 May 1998

The appellant was convicted by a jury in the District Court of Southport on 10 of the 14 counts on which he was indicted.  These consisted of offences committed upon his stepdaughter or arising out of his relationship with her.  Most of them were of a sexual nature.  The complainant was fifteen years old at the time of the first offence and twenty-three years old at the time of the last.

The details of the 14 counts and the verdicts are:

The complainant’s mother formed a relationship with the appellant, and moved with him to the Gold Coast when the complainant was twelve years old.  She left school at age fifteen and worked part-time for the appellant who at that time set up his own security companies.  She sometimes went out on patrols with him at night time.  This is when the sexual dealing is said to have commenced.  The appellant, who gave evidence, admitted that there was a sexual relationship between them, but said that this only started in 1991 when the complainant was aged seventeen years and two months.  On his account they, on joint initiative, started masturbating each other, and kept performing sexual acts on each other until 1997.  He says that they never had “penetrational sex” and that for the first two or three years after that first night, they did something similar to each other “every night”.  On his account from late 1994 they slept together, but their sexual relationship was confined to masturbation and oral sex.

By February 1997 the complainant (who was by this time twenty-three) had a relationship with another man (R).  This was resented by the appellant, who conceded that he “hated his guts”.  After an incident on the night of 13 February in the appellant’s car, the complainant complained to R and they went together to the police, and after some administrative delay, made a complaint leading in due course to the arrest of the appellant.

The Crown case, based on the complainant’s story may be briefly summarised.

Count 1

A few weeks after she left high-school in March 1989 she was in the appellant’s patrol vehicle when he drove to a dirt track.  He asked her to masturbate him.  She refused, and got out of the car, but was caught and taken back to the vehicle.  He placed her hand on his penis and directed her manipulation of him until he ejaculated.

Counts 2 and 3

When she was about sixteen and a half the appellant also asked her for “a head job”.  This was preceded by the appellant’s expression of suspicion or jealousy over the complainant having been to an Indy race with one J.  He inspected her clothes for stains and the like.  She was due to go out on a patrol with him, and he made her wear a mini-skirt without underwear.  When they were in the car he inserted his fingers in her vagina and asked for oral sex.  When she said she did not want to do so, he put a gun near her head (a .357 magnum).  He forced her head to his penis and ultimately ejaculated in her mouth.

According to the complainant acts of that kind continued for another six years until she left home in 1997.

Counts 4 and 5

These two counts (between October 1996 and January 1997) followed soon after she met a male friend, R.   Count 5 (attempted rape) reveals an incident where the appellant might be thought to have attempted to take the sexual relationship a stage further.  He got into bed with her (after her mother had gone to work) and asked her “to have sex” with him.  There was some physical contact in which he placed her in a position on top of him, but failed to penetrate.  His actions reveal only limited persistence after she indicated her unwillingness, and he was acquitted of the attempted rape count.  He seems to have diverted his attentions to oral sex which was insisted upon until it was effected.  That is the subject of Count 5, which alleged an act of gross indecency with a circumstance of aggravation (consent procured through fear or intimidation), of which he was convicted.

Count 6

From this time on the complainant made endeavours to leave the family home, but each time she did so the appellant found her.  From January 1997 she resided in a unit with R.  On the night of 30 January the appellant visited the unit under the influence of drink.  He asked the complainant if she loved him and was told “No, not the way you want me to anyway”.  He responded violently, grabbed her by the arms, threw her against the fridge and then into the pantry.  He ripped her pants in the crutch area, obtained a knife and stabbed his own wrist.  She suffered bruising to her arms which was depicted in photographs taken by R.

Counts 7 and 8

On 7 February 1997 there was an argument between the complainant and the appellant in the lunchroom at one of the security companies.  He grabbed her by the hair and slammed her against the wall, hit her in the breast, grabbed her in the vaginal area, attempted to rip a bracelet from her wrist and spat on her, calling her a slut.  Afterwards the appellant sat down at a table, put a gun to his head and said he was going to shoot himself.  He drove the complainant to hospital after work.  After this he took her to his home at Runaway Bay where he forced her to masturbate him.

Counts 9 to 11

On 12 February 1997 the complainant spoke to a detective at the Runaway Bay Police Station and made arrangements to see another detective at the Sexual Assault Investigation Unit the following morning.  On the following night the complainant was at R’s unit when she was telephoned by the appellant and asked to come downstairs.  The appellant was parked in the driveway.  She spoke to him through the open door and was pulled into the car.  The appellant locked the door and drove away.  He told her that he wanted to marry her and to have sex with her that night.  He removed his shorts and rubbed his penis against her vagina.  She said “he put it in, and then it went soft”.  When asked about the degree of penetration she said “not very far”.

The appellant then forced the complainant to masturbate him.  He then drove her home.  She told R, and together they went to the Surfers Paradise Police Station and made a complaint.  He was acquitted on Counts 9 and 10, but convicted on Count 11 (procuring an act of gross indecency with a circumstance of aggravation).

Count 12

R remained at the police station until about 7 o’clock the following morning (14 February).  While driving back to his unit he was overtaken by the appellant who signalled him to pull over.  The appellant demanded to know where the complainant was, removed the keys from R’s car, pulled R from the car and punched him in the head causing injury.

Counts 13 and 14

After the appellant’s arrest he became an inmate at the Gold Coast Hospital.  On 17 February 1997 he received a visit from his sister-in-law who came back later with personal items for him.  The police officer guarding the appellant asked to see a letter written by the appellant during her visit.  It included “P.S.  The only way I’m getting out of this is she drops the charges.  Any costs I will pay so get everyone to get on to her or I’m gone for ten years” and “Get this bitch to drop charges so me and Val can go to Hervey Bay”.

Other Evidence

Corroborative evidence included–

1. recordings of telephone conversations between the complainant and the appellant on 14 February 1997, in the first of which the appellant apologised to the complainant, and in the second of which it may be inferred that the appellant became aware that the conversation was being recorded;

2. the complainant’s description of the events the subject of Count 11 included an ejaculation in which some of the ejaculate hit the ceiling of the car.  The police took samples from the car and it was proved by admission that spermatozoa had been located in the console area and on the ceiling of the appellant’s vehicle;

3. medical examination of the complainant on 14 February 1997 confirmed bruising of the arm and ankle approximately two weeks old, and a genital examination revealed mild tenderness;

4. the assault upon R was witnessed by the complainant’s mother.

Grounds of Appeal

Grounds 1 to 6 - Refusal to discharge jury

Grounds 1 to 6 allege that the trial miscarried by reason of a number of factors including alleged incompetence of defence counsel during the first two days followed by dismissal of that counsel, adjournment and his replacement by another counsel.  Counsel for the appellant (Mr Rafter) submitted that this “unfortunate sequence of events” had deprived the appellant of a fair trial. 

At the close of the prosecution case (during the second day) the appellant elected to give evidence and by the end of that day had given a substantial part of his evidence in chief.  At the end of the day, in the absence of the jury the Crown Prosecutor complained that a deal of evidence given by the appellant had not been put to the complainant in cross-examination.  He also asked for a better opening in respect of four witnesses whom defence counsel had mentioned his intention of calling.  The learned trial judge mentioned the possible consequence that the Crown Prosecutor could make certain comments, if he chose to do so, in the course of addresses.

The following morning, in the absence of the jury, defence counsel announced to the court that the appellant had withdrawn his instructions, and sought leave to withdraw.  He stated that his client wished the trial to be aborted.  He continued:

“He doesn’t feel that he can represent himself.  He wishes to have another barrister to take a different course of action in this trial which would not be available in light of the evidence to date.  He has said that he is willing to stay on a lengthy remand, if need be, to achieve that end.”

The appellant however wished to retain the services of the same solicitor, Ms Kerry Smith of Smith Whitehead Morewood and Payne.  Counsel was given leave to withdraw, and Ms Smith then appeared, and submitted that the trial had to be aborted.  She mentioned however that she had spoken to a Queens Counsel who was willing to take instructions but who would need time to read the material.  The learned trial judge refused the application for discharge of the jury but granted an adjournment of the trial until the following Monday.

When the matter resumed on the Monday, Ms Smith sought leave to withdraw, as legal aid had been granted and Mr Donaldson of counsel had accepted instructions from another firm, Ryan and Bosscher.  Mr Donaldson however did not at that stage have adequate instructions to enable him to proceed.  He asked for an adjournment until 2.30 p.m., which was granted.  In the afternoon he indicated that although he had some material there was no signed statement from the appellant, and at his request the matter was adjourned until the following day.

On the following day, Mr Donaldson, on the instructions of his client, made a further application for the trial to be aborted.  One of the main grounds raised was the potential prejudice from former counsel not having fully put the appellant’s version to the complainant.  On this issue the Crown Prosecutor indicated that if the interests of justice required it, the Crown would recall the complainant to enable these matters to be put to her.  In the event defence counsel was not prepared to agree to that course being followed.  It should also be noted that the Crown Prosecutor further intimated that the Crown would not make anything of the failure to put specific instructions to the complainant during address “unless my friend makes something of it in his address, and even then it wouldn’t go beyond suggestion that the witness just wasn’t given the opportunity to answer”.  In the event the Crown Prosecutor abided by those undertakings, going no further than he had indicated, and the learned trial judge, in adverting to that factor in his summing up, pointed out that the jury might consider the change in the appellant’s legal representation in relation to that submission and to difficulties resulting from the change.  In relation to the offer to recall the complainant, for a time there seems to have been some misunderstanding on defence counsel’s part that the Crown would treat any recall of the complainant as an aggravating feature in the event that the appellant were convicted, but that misunderstanding was dispelled.  As Mr Rafter conceded in argument on appeal, the offer was there, and the complainant could have been recalled but the second counsel chose not to take advantage of that, on what might be regarded as sound tactical reasons.

Another basis of the application for discharge of the jury without verdict was the submission that evidence had been improperly admitted.  This allegation is the subject of particular grounds of appeal which will be dealt with in due course.  Suffice it to say at this stage that in my view that objection was not well founded.

The present grounds were supported by an affidavit by a solicitor from the firm appointed by the Legal Aid Office to continue to conduct the trial on behalf of the appellant.  The affidavit contains no allegation that the new solicitor was unable to obtain proper instructions or that they were unable to offer a proper defence although some complaint is made of the inadequate state of the file inherited from the former solicitors.  It is of course always true that when representatives in the course of a trial withdraw, the replacement representatives have the difficulty of taking up where someone else has stopped and the disadvantage of reading transcript instead of having observed the witnesses and absorbed the atmosphere of the trial to that point.  Whilst such changes are not particularly common, they do from time to time occur, and whilst these difficulties need to be taken into account, they cannot without more be a sufficient basis for discharging a jury.  If they were, accused persons could abort trials at will whenever it seemed advantageous to do so.  The disadvantage of a changeover is quite obvious to a jury, and in the present case they were reminded of it by the learned trial judge.

In the present case, although the notice of appeal asserts “incompetence” on the part of initial counsel and solicitor, no evidence was presented which would enable that assertion to be tested, apart from the transcript of the actual proceedings.  Where, as here, one of the main particulars of incompetence is said to be counsel’s failure to put the defence case adequately to Crown witnesses, there can be several reasons for such a failure.  One is that the accused has not to that time given such a version to his lawyers;  another is that the accused has changed his story between the giving of instructions and the giving of evidence;  and another may be incompetence on the lawyer’s part in failing to take proper instructions, failing to read them or failing to put them.  In an issue such as this, I fail to see how the question of incompetence of counsel can be properly determined without adequate investigation of the relationship and dealings between client and adviser.  It is difficult to see how this can be done in the absence of a waiver (express or implied) of privilege by the client.  The appellant in the present case did not choose to do this, or to present any information for assessment by the court beyond the ordinary appeal record.

The difficulties confronting appeals based on complaints concerning the conduct of counsel at trial have been addressed recently in decisions including R v Green [1997] 1 Qd R 584.  Counsel must be allowed a wide latitude in conducting a trial even if this sometimes goes against the wishes even of the client or errors of judgment are involved.  The test suggested as necessary is “flagrant incompetence” (R v Birks (1990) 19 NSWLR 677).  A trial is a moving practical exercise which is very difficult to replicate so that criticisms by a disappointed litigant can be fairly assessed.  In the present case there is reason to think that the appellant considered that things were not going well by the end of the second day, by which time the trial was not far from completion of the evidence, and that he saw a retrial as the preferable tactical alternative.  It was he who dismissed his counsel at that stage and precipitated the ensuing difficulties. The justification for his dismissal of counsel has not been litigated, except in a very superficial way, and that again has been a matter within the appellant’s choice.  Although there were multiple counts, the Crown case had finished in a day and a half, and the transcript was not overwhelming.  Sufficient time seems to have been allowed by the learned trial judge to enable a proper change of representation to occur, despite the appellant’s preference for a declaration of mistrial.  In the end I do not understand grounds 1 to 6 to have been strongly pressed by counsel for the appellant, but the court has examined the grounds as closely as the litigation permits.  In the result I do not consider that the trial was unfair or that any miscarriage of justice has arisen from the sequence of events that has been recounted.

Remaining Grounds

Since preparing these reasons I have read the proposed reasons of Dowsett J.  It is desirable that the actual grounds on which the appeal has been brought be stated.  These were added to the original grounds upon Mr Rafter’s application during the appeal.

"8.(a)A miscarriage of justice occurred by reason of the admission of evidence of violence by the appellant towards the complainant’s mother; such evidence being highly prejudicial and having little, if any probative value.

2. Further, such evidence having been admitted, the Learned Trial Judge erred in failing to warn the jury about the possible misuse of the evidence.

9.(a)A miscarriage of justice occurred by reason of the admission of complaint evidence from the witnesses Warren, Craft, Stiles and Robertson when such complaints were not shown to have been made at the first reasonable opportunity.

2. Alternatively, if the evidence was admissible as fresh complaint evidence, the Learned Trial Judge erred in failing to direct the jury in relation to the use of such evidence.

10. The Learned Trial Judge erred in directing the jury that they could consider the question ‘. . . if these allegations are false why would (the complainant) make the allegations?’

11. The Learned Trial Judge erred in failing to direct the jury that evidence of uncharged sexual acts and acts of violence was admitted for the limited purpose of establishing the nature of the relationship between the complainant and the appellant.

12. The Learned Trial Judge failed to adequately warn the jury of the need to scrutinise the complainant’s evidence carefully, particularly in view of the absence of any complaint until 1996.”

I shall now deal with each of these in turn.  However I do not propose to deal with grounds that were neither pleaded nor argued.

Ground 8 - Evidence of violence towards the complainant’s mother

Ground 9 - Admissibility of fresh complaint evidence and adequacy of directions thereon

These issues are directly related.  Issues of fresh complaint and of late complaint were plainly raised in this case.  The defence, throughout the trial, attempted to make something of the complainant’s failure to confide in her mother, and of her failure to complain to anyone until about October 1996.

In cross-examination of the complainant, she said that she did not tell her mother because she did not think her mother would believe her, that she and her mother were not particularly close and that her mother was just as scared of the appellant as she was.  She had seen what he used to do to her mother when she was growing up.  In re-examination some particulars of this were elicited, namely “He used to beat her up.  He used to accuse her of having sex with every guy she looked at.  Sometimes her whole face would be black and swollen right out.  She’d have two black eyes, her jaw would be just huge, her whole face would be black.”

When the mother was called to give evidence, she was asked “How was your relationship with the accused . . . from about 1989 onwards?”  She replied “Well, it was non-existent.  It was very violent”.  The subject matter of that reply was not pursued and there was no objection taken.  The complainant’s mother gave further evidence describing the dominant position in the household that was assumed by the appellant and the general obedience of herself and the complainant.  She confirmed that she had seen the accused being violent towards the complainant and that she had seen the complainant with marks on her arms and face.

The present case concerns a household of three people.  Some knowledge of their relationships inter se would be necessary in order to assess the merits of the argument that adverse inferences should be drawn from the complainant’s failure to complain sooner than she did.  Certainly the evidence referred to under grounds 8 and 9 is relevant in the present case to the understanding of the issue of fresh or late complaint.

At various stages in her evidence the complainant said that she was scared of the appellant and frightened that he might hurt her.  On the Crown case she submitted to the sexual advances of the appellant because she was frightened of him.  On a number of the sexual charges the major issue was consent, and it was necessary for the Crown to prove that the complainant’s consent was obtained by threats, intimidation or fear of bodily harm.  In this regard previous acts of violence towards her were plainly relevant on the important issue of consent, and I understand Mr Rafter to have conceded this during argument.

Evidence of violence against the complainant was also relevant to her absence of complaint.  The evidence of violence against the mother was also relevant to the question of the failure of the complainant to complain to the mother.  Evidence of the latter kind was elicited by defence counsel from the complainant during cross-examination.  Whether that placed the question of violence to the mother into issue is a difficult question.  It will be noted that the only further evidence adduced of this kind was the mother’s brief but double-barrelled answer to the “relationship” question mentioned above.  There is a reference in the learned trial judge’s summing up to the mother’s confirmation of violence of the appellant towards the complainant, and for reasons given above there can be no objection to that reference.  However, so far as can be seen the question of violence to the mother was a non-issue during addresses and no mention of it is made in the summing up.

   Mr Rafter submitted that the jury should have been specially instructed that violence to the mother should not be taken by them to mean that he was violent to the complainant;  and not to reason that because he had a violent disposition he was therefore more likely to commit violent offences.  There will be cases where directions of that kind will be useful and even necessary, and there will be others where the emphasis that is focussed on such evidence by such directions is undesirable and more prone to confuse than enlighten.  The subject of directions against the incriminatory use of propensity evidence is dealt with in greater detail under the discussion of ground 11.  Here there was no request for any direction or redirection of this kind.  I do not consider that any material error occurred in relation to these matters.  If the inadvertent reception of the mother’s general statement constituted an error, it could not have had any material bearing upon the result.

I turn to the evidence of fresh complaint.  It was submitted that evidence of conversations when the complainant first spoke with others about her sexual problems involving the appellant was not properly receivable as “fresh complaint” evidence.  Five persons to whom the complainant made statements of this kind were spoken to between October and December 1996.  It would seem this occurred at about the time of the conduct the subject of Counts 4 and 5.  Some though not necessarily all of these conversations occurred fairly soon after those events.  The incident the subject of those counts reveals a new dimension to the sexual approach of the appellant and there can be no doubt that the evidence was properly receivable with respect to the sexual acts by the appellant committed upon her at that time.  When the complainant saw fit to confide in someone on such matters, it would be highly likely that she would mention not only the recent occurrences, but would go on to mention that he had been doing that sort of thing for a long time.  It is highly artificial, indeed, practically impossible, to put such a disclosure into two separate legal categories by admitting her complaint of the recent occurrences as fresh complaint and excluding her mention of the older ones on the basis that they are too stale.  Such evidence simply describes a situation as it was, and would have permitted counsel for both sides to make what they could of it.  That is to say, it was open to the defence to criticise the lateness of complaint concerning early allegations and for the prosecution to affirm the recency of the complaints concerning the new ones.  In this case the question of late complaint and recent complaint were obviously in issue from the outset.  The objection that some of the complaints were not shown to have been made at the earliest reasonable opportunity and should therefore have been excluded, notwithstanding the absence of objection, is not sustainable (R v W [1996] 1 Qd R 573;  King (1995) 78 A Crim R 53).  Since preparing these reasons I have read the reasons of Pincus JA.  I agree that if there was any error in the reception of any of this evidence it could not have led to any miscarriage of justice.

It was further submitted that although the judge gave directions with respect to the complaint made by the complainant to R, no directions were given in relation to the evidence of complaints to other persons.  However no redirections were sought, and the direction concerning the complaint to R was appropriate and orthodox.  Further, the learned trial judge underlined the countervailing argument of the defence–

“This is an important point from the defence point of view - why did not the complainant make any complaint earlier?  After all, the effect of her allegations is there had been sexual offences committed on her for a number of years before she complained.  Why did she not complain earlier?”

His Honour went on to emphasise that this could create doubts about whether or not she was a consenting party, and the suggestion that complaints were really only made after a new man came into her life and there were some changes in the business arrangement.  I do not consider that any error occurred in the trial of the kinds suggested under Ground 9.

Ground 10 - Directions on evidence of motive for a false accusation

Objection was taken to the following passage in the summing up:

“Now, where you are considering the credibility of a person, particularly where it is alleged that that person, which is the complainant, has made false accusations against someone, you are quite entitled to ask yourselves, well, what motive would that person have for making such false allegations?  Now, having said that I will also stress, and this is also important, but it may be, on some occasions that false accusations are made for reasons which are not apparent to the Court.  There is no evidence to explain why such allegations are made and why such false allegations are being made.  So you must not approach it on this basis that, well, we cannot find any reason why she would make these false allegations, therefore they must be correct.  Conceivably there may be reasons which are not apparent from the evidence, that no one knows about as to why false allegations may be made. ”

There is nothing objectionable in that direction, particularly in the context of defence counsel having suggested during address certain motives for making a false complaint, that complaints were only made after a new man came on the scene, and that there was conflict between them over the accused threatening to “put him in” to the police about drugs.  The above direction merely covers the contingency that such suggestions did not find favour, and that the jury found themselves in the position of not being able to discern any motive for making a false complaint.  The summing up was appropriately protective of the defence in that event.  His Honour also directed that false complaints are sometimes made for no apparent reason, and that for that reason the jury must scrutinise the evidence of the complainant very carefully.  Counsel for the appellant referred to Palmer v R (1998) 72 ALJR 254 which concerned cross-examination of an accused person about whether he could suggest any reason why the complainant would lie.  There is nothing in Palmer which suggests any error in his Honour’s summing up in this particular case.  There is no merit in this ground.

Ground 11 - Failure to direct the jury as to the permissible use of evidence of uncharged acts

The evidence to which reference is made is evidence of the general continuity of the sexual relationship once it commenced.  For example the complainant said that contact of a similar kind occurred “just about every time I went out on the patrols with him which was every night” and that once the oral sex commenced, “I used to have to give him oral sex.  Usually it was only like a Friday or a Saturday or a Sunday night, whatever nights my mum worked.”  Such evidence did not add to evidence of specific acts, and is simply evidence that the sexual relationship, once it commenced, was a continuous rather than a sporadic one.  Such evidence enabled the complainant’s evidence to be seen in proper context, and was “the key to an assessment of the relationship between(the appellant and the complainant) and, as such, constituted part of the essential background against which both (the complainant’s and the appellant’s) evidence of the alleged offences necessarily fell to be evaluated” (B v The Queen (1992) 175 CLR 599, 610 per Deane J;  cf. Brennan CJ at 604-5).

   There is no doubt that in the present case the nature of the sexual relationship between the complainant and the appellant was a relevant issue.  That it was a sexual relationship was confirmed at least from 1991 onwards, by the appellant’s evidence, but its true nature remained very much in issue, including the issue of consent through intimidation.  Evidence of the relationship of the parties in the household in which they lived was relevant if these issues were to be properly considered.  Indeed it would be a most unsatisfactory exercise if these matters were to be appraised in vacuo. 

Over the years many terms have been used to describe the secondary type of evidence which is admitted to make primary evidence more comprehensible, and to enable it to be viewed in its proper context.  These include “background”, “relationship”,  “connective series of events”, “history” and “completeness”.  The authorities vary widely in characterising the basis of its reception, ranging from res gestae through to circumstantial evidence.   Those categories do not comfortably accommodate such evidence, though sometimes the evidence may have features which satisfy one or more of them.  In truth it would seem to be a recognised separate category of evidence which allows the enhancement of a party’s case through the presentation of a larger picture, when confinement to the facts directly in issue would present a truncated or unrealistic view. 

The following description of such evidence by King CJ (in R v Dolan (1992) 58 SASR 501, 503) fairly characterises the nature of such evidence–

“I assume that it was admitted as indicating the relationship between the appellant and the alleged victim and as establishing the true context and setting in which the offences were alleged to have occurred.  I consider that it was properly admissible on that basis.  It would not be possible to properly appreciate and evaluate the evidence of the alleged victim as to the incidents forming the subject of the counts without the knowledge that they occurred in the setting of a course of sexual conduct occurring over a period of time.  The occurrence of the course of conduct was a necessary part of the alleged victim’s story and her account of the incidents which were the subject of the charges, could only be evaluated in that context.”

For convenience evidence of this kind will be referred to as evidence of continuity of relationship.

I would also adopt with respect the following statement of de Jersey J in R v W CA 349 of 1997, 21 November 1997–

“  It appears to me that notwithstanding Pfennig (1995) 182 CLR 461, evidence of past sexual impropriety between the appellant and his stepdaughter, which if accepted would amount to criminal conduct, was admissible as showing ‘the relationship between the two persons involved in the commission of the offence, or the guilty passion between them’ (S v The Queen (1989) 168 CLR 266, 275 per Dawson J, 279 per Toohey J, and Harriman v The Queen (1989) 167 CLR 590, 631 per McHugh J), provided it had ‘a sufficiently high degree of relevance ... to justify its admission’ (S, 275 per Dawson J), or its probative value raised ‘the objective improbability of some event having occurred other than as alleged by the prosecution’ (S, 287 per Gaudron and McHugh JJ).  I put it this way because if applicable to this species of evidence, then as I read Pfennig, strictly applied, it would almost certainly always lead to its exclusion.  The statements in S and Harriman seem to place this sort of evidence into a category of its own, so that the approach previously taken in this Court, as illustrated for example by R v Witham [1962] Qd R 49, 73-4, 77, 82-3 per Stable J, continues to be appropriate.  I note also what Toohey J said in Pfennig (p 506-7).”

It seems to me that Mr Rafter’s description of this evidence as “evidence of uncharged acts” somewhat overstates its effect.  It does not actually describe any further acts or occasions, and its effect is an allegation of continuity in contrast to the occurrence of a few sporadic instances.  Mr Rafter however referred to BRS v R (1997) 148 ALR 101;  (1997) 71 ALJR 1512;  R v Grech [1997] 2 VR 609;  and R v W CA 349 of 1997, 21 November 1997.  His submission was that a specific direction was required to the effect that evidence of this kind could only be used to establish the existence of sexual relationship and that it did not show that the appellant had a propensity to commit such offences.  It is true that the above cases recognise the need for directions along those lines when there is evidence capable of showing propensity to commit such an offence or capable of persuading a jury that an accused is guilty of such an offence.  It is easy to see why such a direction was considered necessary in BRS above.  However the evidence in the present case is a far cry from evidence of the kind that was considered in BRS and in Grech.  If it is propensity evidence at all (which it can be only in the most theoretical sense) it is not evidence that might lead a jury to convict in reliance upon any illegitimate reasoning based on propensity. 

The vice of the evidence in question in BRS was its capacity to suggest a predilection of the accused for the company of male youths such that he had a propensity to commit the offence with which he was charged (homosexual intercourse with a pupil under 18).  In the circumstances of that case the evidence was properly receivable on other discrete issues (rebuttal of good character which had been placed in issue by the accused, and corroboration of a material particular in the complainant’s evidence).  But its capacity to damage the accused on the wider and dangerous ground of propensity was considerable.  In such circumstances the majority of the High Court (Toohey, Gaudron, McHugh and Kirby JJ) identified a responsibility upon the trial judge to give a specific direction as to the use that they might make of the evidence and as to the use that was not to be made of the evidence.  The potential danger of the evidence in that case was identified respectively in the following passages–

“In this case there was a clear risk that, unless instructed otherwise, the jury would make improper use of W’s evidence, treating it ‘as indicative of a disposition to [sexual impropriety with young boys]’ and using it as evidence of the appellant’s guilt.” (Per Gaudron J, ibid at 1525)

and

“A miscarriage of justice has occurred if there is a real chance that the jury may have convicted the accused by a chain of ‘forbidden reasoning’.”  (Per McHugh J, ibid at 1528)

The reasons of Kirby J demonstrate very clearly why there was a danger in that case that the jury might reason from the “predilection” revealed by the evidence in question.  His Honour identified the “very great” dangers of propensity evidence and considered that a warning should “invariably” be given about such dangers and the way to avoid them (ibid p 1543).

In the present case I do not consider that the evidence of continuity of the relationship was evidence of the kind which leads to the fallacious reasoning that courts must persuade juries to avoid.

It will often be desirable for a trial judge to mention to the jury that evidence of continuity of relationship has been received only to show what the complainant says is the true context and setting in which the actual offences are alleged to have occurred, and that it has no other purpose or use.  However in the case of general unparticularised evidence of continuity of relationship (as in the present case) I hesitate to suggest that a judge should be obliged to go on to direct the jury against succumbing to the evils of propensity evidence.  If a jury does not accept a complainant’s evidence about the specific act the subject of a charge, it is unthinkable that general evidence based on that specific incident (“he kept doing the same sort of thing”) could be treated by any jury  as evidence showing the necessary propensity to induce them to accept the evidence of the specific act.  There are of course cases where evidence of continuity of relationship descends to particular incidents which may have the ring of truth about them, and in such a case the dangers of reasoning from similar facts or from propensity is alive, and an anti-propensity direction would be necessary.  There will also be cases where the borderline between evidence of the uncharged acts and evidence of the charged acts is indistinct, and there is a risk of conviction on the basis that at least some illegal conduct alleged by the alleged victim has occurred.  R v Dolan (above) and R v W (above) are instances of such situations, and in each instance the Court of Appeal set aside the verdict on the ground of absence of appropriate directions from the trial judge in relation to use of the evidence of uncharged acts.

In R v Dolan above, King CJ (with whom Mullighan J agreed) said:

“In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is incumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.”

and

“The reason for allowing evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them.” (Ibid at p 503)

These remarks were cited with approval by Kirby J in BRS above.  In my view the reference to “all but the most exceptional cases” perhaps overstates the ambit of cases in which such directions are necessary, as the nature of continuity of relationship evidence varies considerably from case to case.  The administration of the criminal law would be poorer if trial judges are encouraged to assume that directions that are appropriate in one case are always necessary in another which appears to have a broad similarity.  If it were necessary to regard King CJ’s view as binding, I would be prepared to identify the present case as an exceptional one.  The true principle would seem to be that in cases where there is a risk that a jury may regard evidence (which is properly admitted on a limited basis) as revealing a propensity on the part of the accused, and there is a risk that the jury might use it in an incriminatory way, then there is a clear need for appropriate directions.  However in a case where the continuity of relationship evidence does not descend to particularity or contain the risk of being used to supplement defective evidence of a charged act or there is some other feature that might invite misuse of it, a special direction is not as a matter of law required.

Accordingly the absence of a direction on this point did not constitute an error.  If it did, the absence of such a direction was not something that could have caused this appellant to lose a real chance of being acquitted, and in the circumstances of this case the proviso should be applied.

Ground 12 - Failure to give a Longman direction

Section 632 of the Code, which applied at the time of the trial, provides that in the absence of express provision to the contrary a person may be convicted of an offence on the uncorroborated testimony of one witness.  It further provides, inter alia, that the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses.  The appellant’s submission on this point is that a special warning should have been given because of the complainant’s delay in making a complaint in relation to Counts 1 to 3.  It may be noted that the subjects of late complaint or early complaint as affecting the credibility of the complainant were separately and appropriately addressed.  Mr Rafter cited Young (1996) 90 A Crim R 80 where the Victorian Court of Appeal held that a delay of more than five years without a complaint was a matter which might well have justified the giving of a Longman direction.

In the present case the learned trial judge specifically directed the jury that “False complaints are sometimes made and sometimes for no apparent reason.  For that reason you must scrutinise the evidence of the complainant girl very carefully.”  He also on a number of occasions mentioned the care that must be exercised in looking at the complainant’s evidence and told them of the possibility of false allegations.  He also told the jury–

“When you’re considering the evidence of the complainants in those cases you don’t look at it in isolation, you look at it together with all of the other evidence that’s been adduced.  You try to ascertain whether that other evidence tends to support the evidence of the complainant or doesn’t support it.  Obviously if you’re considering the evidence of the complainant such as M in this case you may think if there is no other independent evidence to support her evidence that you may have some doubts about it.  I’m not suggesting you would.  That’s entirely a matter for you.”

In the light of s. 632 of the Code, as interpreted in R v Robinson (CA 314 of 1997, 20 March 1998) the evidence in the present case was not such as to require any further warning on the part of the learned trial judge.

For the above reasons the appeal against conviction should be dismissed.

Sentence

The applicant is forty-two years old and has no prior convictions.  He was convicted of one count of indecent assault, two further counts of indecent assault with a circumstance of aggravation, three counts of procuring an act of gross indecency with a circumstance of aggravation, three counts of assault occasioning bodily harm and one count of attempting to pervert justice.  He was sentenced to five years imprisonment on the five sexual counts containing circumstances of aggravation, to lesser sentences on the other offences against the complainant and R, and to one years imprisonment (cumulative) on the charge of attempting to pervert justice.  The combined effect of all the sentences is six years imprisonment.  294 days in pre-sentence custody was declared as time already served under the sentence.

The maximum penalty for the offences of indecent assault (with circumstance of aggravation) and procuring an act of gross indecency (with circumstance of aggravation) is fourteen years imprisonment, and for attempting to pervert the course of justice, two years.

The present series of offences occurred over a lengthy period, commencing when the complainant was fifteen and terminating when she was twenty-three.  The applicant’s conduct involved violence, threats and intimidation and included the holding of a gun to her head as a form of persuasion to perform sexual acts.  Although the offences of which he was convicted were non-penetrational, except perhaps manually, the acts amounted to alternative forms of sexual intercourse including oral sex.  The appellant abused his position of trust and authority as a step-parent in order to have his way.  The circumstances in the present case are therefore relatively serious and were persisted in over a long period.  Indeed, they are characterised by a desire to control and dominate her, with anger and jealousy when she made attempts to relate to other males.  The complainant made many attempts to break free of his domination, but was pursued, and with increasing anger and violence towards the end when she found another man.

This Court has examined sentences for indecent assault and similar offences in cases such as R.C. White CA 473 of 1997, 24 April 1998;  Y CA 23 of 1997, 18 April 1997;  and Bennetto CA 367 of 1997, 2 December 1997. It may be said that sentences of six years are usually found in the more serious examples of such offences, or where there are aggravating features such as multiplicity of offences, multiplicity of complainants, prior criminal history, violent conduct and the like, while sentences of two to four years are relatively common for what might be called offences of medium severity.  The present case falls somewhere between these descriptions.

Having regard to the relative seriousness of the applicant’s conduct, the absence of remorse and the suffering occasioned to the complainant, a substantial penalty was called for.  The only matters in his favour were his previous good record which includes commendations for courage and community service.  It cannot be said that a sentence of five years imprisonment on the sexual assault related charges was beyond the range.  It was also appropriate that the sentence for attempting to pervert the course of justice should be made cumulative upon the other sentences, and overall the combined effect of the sentences cannot be regarded as manifestly excessive.

The application with respect to sentence should be refused.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 12 May 1998

The facts of this matter appear from the reasons prepared by Thomas J. As I am otherwise in agreement with his Honour’s reasons, it is necessary that I say something about only two aspects. They concern the admissibility of the evidence from the complainant’s mother as to violence by the appellant against her (the mother) and the directions concerning evidence of uncharged criminal conduct. I should say that references to the “complainant” in these reasons are to the complainant on counts 1 to 11.

THE MOTHER’S EVIDENCE OF VIOLENCE

In cross-examination, the complainant said that she had not complained to her mother about the appellant’s conduct towards her because he had also been violent towards her (the mother) and that she (the complainant) did not think that such a complaint would do any good.  It was taken a little further in re-examination. The Crown then called the mother to give supportive evidence. If that evidence had been relevant only to explain absence of recent complaint, I would very much doubt its admissibility. Evidence of recent complaint was admissible to demonstrate that the complainant’s contemporaneous conduct was consistent with her allegations, but evidence of circumstances said to explain absence of such complaint would not, in any sense, prove such allegations. It would go to a collateral issue and would not be admissible. The policy reason is obvious - to avoid the artificial multiplication of issues, unnecessarily complicating the jury’s task and extending the length of the trial. It may sometimes be a subtle matter of judgment whether evidence proves the offence charged or goes merely to a  collateral issue, but this was a clear case.               

However, as Thomas J. demonstrates, the history of the appellant’s conduct in the household (including conduct towards the complainant’s mother) was also directly relevant to the issue of consent on a number of charges and therefore admissible.  Although this evidence may not have been admissible had it gone only to explain the absence of recent complaint, once it was received for another purpose, it was permissible for the jury to so use it for both purposes.  Its receipt may, however, have posed other problems which appear from what follows.

DIRECTIONS AS TO “UNCHARGED CRIMINAL CONDUCT”

In recent years, this question has taken up substantial amounts of time in the High Court and in other criminal appellate courts, especially where the evidence in question is of misconduct similar to that charged. See, for example, Pfennig v The Queen (1995) 182 CLR 461. This, undoubtedly,  has been as a result of the enthusiasm with which the Crown seeks to lead such evidence and the trenchant stubbornness with which  its reception is resisted by the defence.  Experienced lawyers perceive substantial dangers to the accused in evidence of this kind, especially in jury trials. One danger is that the jury may assume bad character or “propensity” and infer guilt from such assumption. It may also create a more generalized prejudice against the accused. These possible consequences are related, but distinct.  Such evidence may be led in certain circumstances, but appropriate directions must be given as to its use and possible abuse. The following passage from the judgment of King CJ in R v Dolan (1992) 58 SASR 501 at p. 503 reflects my understanding of the position:-

“In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is incumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.  ... The reason for allowing evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them.”

In light of the attention given by the courts to this issue, it may be confidently inferred that the Crown seeks to lead such evidence only where it is perceived to be of  forensic benefit. Trial and appellate courts must ensure that this benefit is not derived at an unacceptable cost to the defence.

Recent cases have concentrated on so-called “similar fact” evidence. This is evidence of uncharged conduct similar to that charged which is admitted because the similarity is so striking as to render it strongly probative of the charge.   However the requirement for an appropriate direction as prescribed by King CJ extends to all evidence of uncharged criminal conduct.  The word “uncharged” may be misleading. Whilst the problems in question often arise where evidence is led of conduct which is not the subject of a charge, they may also arise when counts are joined on an indictment. This situation was considered by the High Court in De Jesus v The Queen (1986) 61 ALJR 1.

The decision of the High Court  in Donnini v The Queen (1972) 128 CLR 114 demonstrates the policy considerations relevant to the resolution of these problems. That was a case in which the trial Judge had permitted the Crown to cross-examine the accused as to prior convictions. He was charged with armed robbery. In his evidence he said that he had used an assumed name because he had failed to disclose income for tax purposes. Under cross-examination he conceded that he had done so primarily for other reasons. He also volunteered that he had convictions for shop-breaking and other minor offences. The trial Judge directed the jury that they were not entitled to draw  inferences against the accused by reason from such evidence.                The High Court was mainly concerned with whether leave to cross-examine should have been given, but two members of the court also considered the question of  appropriate directions where evidence of bad character is received. At p. 123 Barwick CJ said:-

“However, the question of public importance which, in my opinion, is raised in this case is the existence and extent of the duty of a trial Judge to assist a jury as to the use they may make of evidence of prior convictions having no other relevance in the case than the character and credibility of the accused. It is the settled policy of the law that, in general, evidence of the propensity to commit a crime or of a propensity to commit a particular type of crime is not admitted for the consideration of the jury. But evidence of bad character, particularly where it serves no other purpose in a case than the exposure of that character where the accused’s credit is involved, is susceptible of use by a jury as indicating a propensity for criminal behaviour. Where the ground for granting the permission ... is an attempt by the accused to establish his own good character as a matter to be considered on the question of his guilt or innocence, the purpose of the section is to deny the accused the benefit of a false claim to good character. It does not intend to place bad character before the jury as a fact upon which they may conclude the guilt or innocence of the accused. It seems to me, however, that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused. To so use the fact of prior conviction is to cut across the deeply entrenched policy of the law. Therefore, the not unnatural tendency of the juryman and the importance of that policy seem to me to require that the trial Judge, when evidence of prior conviction is properly before the jury for the sole purpose of combatting a suggestion of good character or to weaken or destroy an accused’s credibility, must assist the jury by expressly and with emphasis telling them that they may not use the fact of prior conviction as tending to the guilt of the accused. In my opinion, in such a case, he should tell them quite clearly that the fact that prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with the witnesses for the Crown, or as to exculpatory facts or claims which he makes. Where the evidence of prior convictions or of bad character or tendencies is properly admitted for other purposes, it may be that a clear statement of the use to be made of the evidence for those purposes may suffice.”

At p. 126 his Honour continued:-

“For my part, ... it would, in my opinion, however, be a more satisfactory course ... for the trial Judge to take some care to ensure by his directions that the evidence tendered for a specific purpose, but capable of being used or rather misused by a jury as evidence of propensity towards the crime with which the accused is charged, is only used by the jury for the purpose for which it was admitted.”

Menzies J. said at p. 134:-

“However, until the problem arises for decision in ascertained circumstances, I would not go beyond the generalization that, in a case, where evidence has been admitted which does not tend to prove the guilt of the accused, but the jury might, without some explanation, regard it as doing so, the direction should explain the significance of the evidence, and warn against its misuse.”

Walsh J. disposed of the appeal upon the basis that leave to cross-examine ought not  have been given, making only limited reference to the question of directions.   Mason J., as his Honour then was, also disposed of the matter on that basis. McTiernan J. did not refer to this aspect. The law appears to be that where evidence of other criminal misconduct or bad character is received in evidence for any reason, a trial Judge ought give an appropriate direction as to the permissible use of that evidence if there is a risk that it may be misused by the jury.

In this case, the evidence against the appellant covered a wide range of social and criminal misconduct, including sexual misconduct with a young girl, use of a firearm, acts of extreme violence towards a young girl, violence towards other persons and an attempt to pervert the course of justice. Such a litany of alleged misconduct could easily create an impression of bad character and lead to an inference as to propensity to offend. It was necessary that there be a careful explanation of the relevance of each aspect of the evidence on each charge and of the impermissible uses to which such evidence might be put by an uninstructed jury.

In considering the appropriate directions in this case, it will assist if I discuss the evidence in various general categories.   There is no point in distinguishing between charged and uncharged conduct. It is more appropriate to seek to categorize the evidence by reference to its subject matter as follows:-

1. evidence of sexual misconduct with the complainant;

2. evidence of violence towards the complainant;

3. evidence of violence towards the complainant’s mother;

4. evidence of violence towards the witness R;

5. evidence of the use of firearms;

6. evidence of an attempt to pervert the course of justice.

Evidence of sexual misconduct with the complainant

Apart from evidence going to  specific counts,  the complainant’s evidence of uncharged sexual misconduct was quite vague. It is outlined in the reasons prepared by Thomas J. As no directions were given as to the use of this evidence, it is difficult to know the basis for its admission.  I assume that it was admitted for purposes similar to those outlined by King CJ. in Dolan (supra) at p. 503:-

“I assume that it was admitted as indicating the relationship between the appellant and the alleged victim and as establishing the true context and setting in which the offences were alleged to have occurred. I consider that it was properly admissible on that basis. It would not be possible to properly appreciate and evaluate the evidence of the alleged victim as to the incidents forming the subject of the counts without the knowledge that they occurred in the setting of a course of sexual conduct occurring over a period of time. The occurrence of the course of conduct was a necessary part of the alleged victim’s story and her account of the incidents which were the subject of the charges, could only be evaluated in that context.”

Such purpose ought to have been explained to the jury, and they ought to have been warned against acting on prejudice and against drawing inferences based on apparent propensity. A warning would not only deter jurors from conscious prejudice and conscious “propensity reasoning” but also alert them to the need to guard against the sub-conscious effects of such evidence.  The jury should also have been told to distinguish between evidence going directly to each offence charged and other evidence of charged and uncharged sexual conduct. They should  have been told to which of the different charges the various aspects of this evidence related.

The evidence of uncharged sexual acts came only from the complainant.  Where, as in BRS v The Queen (1997) 71 A.L.J.R. 1512, the evidence is of misconduct with another witness, the risk of “propensity reasoning” is greatly increased. Further, in the present case, the acts charged were clearly particularized so that there were few risks of the kind discussed by the High Court in S v The Queen (1989) 168  C.L.R. 266. The complainant’s evidence as to  uncharged sexual misconduct was in very general terms, and it had no particular persuasive value of its own which might have bolstered the complainant’s evidence concerning the offences charged. By itself, it may have had little influence on the jury.

However the jury had also heard evidence of numerous incidents of charged sexual misconduct.  Such evidence on each count was  arguably admissible on the other sexual counts, but that question was never addressed.  Unlike the evidence of uncharged sexual misconduct, this evidence was explicit and detailed. It is most unlikely that the jury simply disregarded it. The decision of the High Court in De Jesus demonstrates that on charges of alleged sexual offences, unless the evidence on each count is admissible on the other  counts, the counts ought not  be joined on one indictment. If one assumes that the charges were correctly joined because the other  evidence of charged sexual misconduct was relevant to each of  the sexual charges, there should have been an appropriate direction as to the need to examine each charge separately and warnings against “propensity reasoning” and against prejudice. As to the relevance of all of this evidence on the non-sexual charges, it may be that it was admissible to explain the overall context in which the non-sexual offences allegedly  occurred but again, that should have been explained and the jury warned against using it for other purposes.

Evidence of violence towards the complainant

There was evidence of a course of abusive and threatening behaviour towards the complainant, and of two specific uncharged assaults of a quite serious nature. She alleged that on one occasion, the appellant attacked her in his car, slapping her around the head and making her nose bleed, apparently because he thought she had, or was going to complain to the police about him. The other incident involved his putting her head through a glass window. There were also the two counts of “non-sexual” assault and the count of deprivation of liberty. The complainant’s mother gave evidence of the incident in which the appellant put the complainant’s head through a window. The highly inflammatory nature of some of this evidence is obvious as is the need for clear directions as to its proper use on each count in the indictment. 

Evidence of violence towards the complainant’s mother

The complainant said that the appellant’s history of violence towards her mother led her to believe that there was no point in complaining to her about his misconduct. The mother confirmed the allegation. There were no charges arising out of this conduct.   I have previously discussed its relevance. It had an obvious capacity for creating an impression of propensity to violence.

Evidence of violence towards R

Count 12 was of a quite serious assault on the complainant’s boyfriend, R. He and the complainant’s mother gave evidence of this. Such evidence could only have added to the perception of the appellant as having a propensity to violence.

Evidence of the use of firearms

A firearm was involved in count 3, which was a charge of indecent assault. The complainant alleged that whilst she and the appellant were sitting in a motor vehicle in bushland, he made sexual advances towards her. When she indicated that she did not wish to participate, he produced a gun from between the seats, held it to her head and forced her to engage in oral sex. 

Another  incident involving a firearm occurred on 7 February 1997 at the appellant’s  place of business where the complainant also worked. She complained that he assaulted her in the lunch room (count 7) and then held a gun to his own head, threatening to kill himself. Subsequently, he took the complainant to  hospital for treatment of the injuries which she had suffered in the earlier assault. Later that night, he committed an act of indecency upon her (Count 8). 

If evidence of the involvement of a firearm stood by itself as admissible evidence in respect of one count on a multiple-count indictment, one would expect some attempt to address the dangers of prejudice on the other counts. It is, after all, by no means a common experience that a man should possess and be willing to use a firearm.   The appellant’s possession of a firearm was explained by the fact that he was in the security industry, thus excluding the possibility that it was indicative of some unexplained criminal involvement, but nonetheless, the evidence was likely to have an inflammatory effect, and steps should have been taken to address that aspect.

Evidence of an attempt to pervert the course of justice

Counts 13 and 14 arose out of a document, ex. 13, handed by the appellant to his sister-in-law. The Crown alleged that it constituted an attempt by the appellant to cause the complainant to withdraw her evidence. It was capable of being so construed.  This evidence had a real potential for creating prejudice against the accused on other counts. Indeed, the Crown asserted that it might demonstrate knowledge of guilt and was admissible on those counts.  For my part, I would think it equally consistent with the response in panic of an innocent man, and this explanation was fairly put to the jury by the learned trial Judge. However, even if it did disclose a guilty mind, it was necessary to decide to which offence or offences that guilt related. It could hardly be asserted that it necessarily indicated guilt on all charges. If this evidence was to be used on the other counts, it was necessary to consider its relevance to each charge. In no circumstances could it demonstrate guilt on the charge of assault on R.

The charge

I turn now to his Honour’s charge to the jury.  I will set out a number of passages in order to convey the flavour of the directions given as to the matters which I have been discussing.

At 327 his Honour said:-

“There are a number of charges, 14 in all. Each one of those charges must be considered separately to this extent, that you can return a verdict of guilty or not guilty in respect of any of those charges. You can convict of all, find the accused not guilty of all of them, or you can convict of some and not others. It is entirely a matter for your, but that is what I mean when I say each charge must be considered individually.”

Although that passage may have been strictly correct, it was somewhat elliptical.  It might be argued that in indicating that different verdicts were available on different counts, his Honour was implying that each count was to be decided upon the evidence admissible on that count.  I consider, however, that an express direction to that effect was necessary. His Honour said only that the jury was at liberty to return different verdicts on different counts.  At p. 342 and 343 the learned trial Judge invited the jury to look at all of the evidence in assessing the credibility of the various witnesses. No exception can be taken to that direction. However that highlighted the need for a clear direction that they should act only upon the relevant evidence in determining the verdict on each count, as opposed to considering issues of credibility.

At p. 343 his Honour gave a direction to the effect that no adverse inference should be drawn against the appellant because he had been in custody since his arrest. That was, of course, an appropriate direction. However its presence tended to highlight the fact that no warning was given with respect to other matters. Logically, from the jury’s point of view, if they were told not to draw adverse inferences from one particular aspect of the case, it might well have  seemed that it was permissible to draw adverse inferences from other aspects in respect of which no such caveat was  given. 

At p. 345 his Honour said:-

“You must act on the evidence. The Crown invites you to act on the evidence and to apply your common sense to that evidence. The Crown says that if you accept the evidence of the prosecution witnesses, in particular the complainants, both M and R, you could convict the accused of each of the charges.”

Again, as a general statement that may not be open to challenge, but it ought only to have been part of an appropriate direction. His Honour should, at some stage, have made it clear that he was not inviting the jury to make a decision as to whether or not they were generally willing  to act upon the evidence of one or more Crown witnesses and to infer guilt in respect of all counts based upon that general acceptance.              The jury returned four verdicts of “not guilty”. This might be thought to indicate that they did not take that course. However a close examination of those verdicts indicates that such an inference cannot be drawn from them. The appellant was acquitted of count 4 (attempted rape), but the evidence indicates that this incident and count 5 (of which he was convicted) were alleged to have occurred in substantially one transaction. It seems likely that the jury were not willing to infer an intention to penetrate from the complainant’s evidence, rather than that they rejected any substantial aspect of it.

The appellant was acquitted of counts 9 and 10 but convicted of count 11. These three counts arose out of one incident in which he was said to have abducted her, raped her, (achieving only minimal penetration), and then compelled her to masturbate him. The defence on the abduction count appears to have been that she could have escaped from the car had she wished. It is probable that the jury was left in some doubt on this issue.   On the rape count, the allegation was of minimal penetration. The jury was probably not satisfied on that issue, nor as to intention to penetrate. They must, however, have accepted her evidence generally as to the incident in order to convict on count 11.  He was acquitted on count 13 but convicted on count 14. They were alternative counts and in any event, did not involve evidence from the complainant. The verdicts were quite consistent with a general acceptance of the complainant’s evidence of a lengthy period of sexual abuse  as opposed to the appellant’s assertion of a consensual relationship.

At p. 346, his Honour said:-

“The Crown then summarized briefly the complainant’s evidence in relation to each of the charges and I will not repeat that. I think I have done that adequately to you already.”

His Honour had, in giving directions as to the law applicable to the various counts, referred to the evidence of the complainant and R in order to identify the charges. Subsequently, he summarized the appellant’s response to each charge. It may be that his Honour’s directions in this regard were adequate in the circumstances of this case, given that virtually all of the evidence as to each count (other than costs 13 and 14) came from the relevant complainants. However I consider that it would have been better had his Honour clearly identified, in an exhaustive manner, the evidence on each count, making it clear that he was doing  so and why he was doing so, highlighting the need for separate consideration of each count.

At p. 347 his Honour said:-

“Well, the Crown says that clearly if you accept M’s evidence as truthful and reliable then the Crown has proved each of these offences, the offences in which she is involved. Well why should you not accept her?”

His Honour then discussed motives for lying and continued:-

“Therefore it gets back really to a question of credibility”.

There was then a further discussion of her credibility and at the bottom of p. 349 this passage appears:-

“The Crown says further that her evidence is supported by other independent evidence. As I said to you before, you must consider her evidence not on its own in isolation, but in the light of other evidence which may support or not support her evidence.   Reference were made by the Crown to observations of other persons about the relationship between the accused and M, that he was possessive, would change his personality when she was present. ....

Secondly, the Crown says you have the evidence of the mother. I will not go into that. There are a number of aspects of the mother’s evidence that were referred to which you may think would tend to support the evidence of the complainant, M, evidence of violence used towards her, evidence as to what happened on 14 February, and that is not only consistent with, or supports M’s evidence, but also R’s evidence to some extent is corroborative of what M said happened in some respects on 14 February.”

Again, the emphasis was upon the overall assessment of the complainant’s evidence. Other than in respect of events occurring on 13 and 14 February, there was no attempt to identify the extent to which the other witnesses may have supported her on individual counts as opposed to globally.

At p. 354 his Honour said:-

“The defence, quite properly, pointed out to you that you must not be influenced in any way in this case by prejudice caused because of the nature of the allegations that have been made against him. Again you must not be prejudiced against him as a result of any sympathy you may have for the complainant M. You must look at the facts coldly, dispassionately and decide them objectively without emotional sympathy. Look at the cold hard facts.

The defence agrees that the major issue was one of consent so far as the majority offences are concerned, the evidence or credibility of M on the one hand and the accused on the other. It was pointed out to you, again quite correctly, that this is not a court of morals. You do not make moral judgment. You may strongly disapprove of the accused’s conduct, of his relationship with this girl, even if was consensual, as he suggests. You may strongly disapprove of it. You do not convict him on that. If you are satisfied that her evidence is correct and honest and reliable you convict. You do not say, well we strongly disapprove of this conduct.  We are not quite sure as to whether to believe the girl or not, but whatever happened we disapprove of this conduct, therefore we’ll find him guilty. That would be incorrect. That would be setting yourself up as judges of morals. You only convict if you are satisfied that her evidence is correct, satisfied beyond all reasonable doubt that her evidence is correct.”

This passage certainly dealt with one possible root of prejudice. However it did not deal with the issues of violence and the attempt to pervert the course of justice, nor with “propensity reasoning”.  

As to the question of  firearms, his Honour said at p. 357:-

“So far as the gun is concerned, well, obviously when you are considering M’s evidence that a gun was held at her head that is perhaps different from another situation where a gun is used. Guns were clearly the stock of trade of the accused. He had it in the car quite lawfully in respect of his business and perhaps you should not interpret that, the fact it did happen that way, the way you would if he was a person who was not entitled to have a gun in his possession. I am not suggesting that in any way justifies his conduct, if he did use the gun as M suggested, but, as I understand it, the defence invites you to look at it in that context.

It also points out to you why would he need to use a gun to threaten her having regard to the circumstances. It was suggested that he would not have any need to do that, so therefore you may well conclude that her evidence in that regard is unreliable.”

This passage dealt with one issue which causes me concern, namely the tendency to associate the possession of firearms with unlawful conduct. However his Honour  should also have stressed that a firearm was only directly involved in one count and that any perceived propensity  to misuse firearms ought not be the basis of inferences against the appellant, save perhaps on the issue of consent.

At p. 365 his Honour said in the final part of his charge:-

“I will just say this in conclusion, ladies and gentlemen: that the case really does depend to a large extent on the question of credibility; so far as the charges involving M are concerned, her credibility as opposed to the accused; so far as the charge involving R is concerned, his credibility as opposed to that of the accused; insofar as counts 13 and 14 are concerned, how you interpret that document exhibit 13.

Bear in mind, again, that before you can convict of any of these charges you must be satisfied that the evidence of the prosecution witnesses, whether it’s the complainant M or R, as the case may be, is both honest and reliable insofar as the elements of the offence are concerned. Don’t look at that in isolation. Consider it in the light of other evidence from other witnesses to see whether it supports or contradicts that and, of course, consider it in the light of the sworn evidence given by the accused.

If you are not satisfied as to the truthfulness of those witnesses so far as those matters are concerned or if as a result of hearing the accused’s evidence you are left with a reasonable doubt, well, then, of course, you must find him not guilty of those charges.”

To my mind, this passage was likely to have been understood by the jury as encouraging a global approach to the charges, at least where they involved the complainant.

Conclusions

As is disclosed in the reasons prepared by Thomas J, this trial took an unusual course. Defence counsel’s instructions were withdrawn whilst the appellant was giving evidence. It is not difficult to infer from the record that the appellant was following a course designed to avoid his trial. That possibility  should be kept in mind in assessing the conduct of the trial to ensure that the present appeal is not simply an extension of the same elaborate plan. I do not imply any misconduct by the appellant’s legal advisers.

It seems, however, that little thought was given in advance of the trial to the problems inherent in it.   There was no apparent consideration of  the admissibility of evidence of uncharged criminal conduct or of the relevance of the evidence on each charge to the others.  I am surprised that no application was made at the outset to sever counts 13 and 14. When this matter was raised at a later stage, the Crown suggested that the alleged conduct could, in some way, be seen as an admission of guilt of the “substantive” charges. I have previously discussed this matter.  I doubt whether the probative effect of the evidence in that context was, in any event,  very great, and its prejudicial effect was obviously substantial.  It is possible that the failure to take these points at an early stage was part of the appellant’s plan, but I doubt it.  Many of the points which now cause me concern were raised when new counsel appeared. However, even at that stage, no attention seems to have been given to the question of the relevance of evidence on any one count to the other counts, except in connection with counts 13 and 14.

I consider that the trial was fatally flawed because:-

1. There was no direction that the jury consider each count separately on the evidence relevant to it. Rather, the charge encouraged a global approach to all charges.

2. There was no direction as to the proper use on each count of evidence of charged and uncharged criminal conduct.

3. There was no direction against acting on prejudice based on the appellant’s  history of violence or on the allegation of an attempt to pervert the course of justice. To some extent, this failure was emphasized by directions against prejudice based on the fact that the appellant was in custody and on his admitted relationship with the complainant.

4. There was no direction against “propensity reasoning”.

As I have said , I distinguish between prejudice and “propensity reasoning”. I understand the former to imply an approach to the question of guilt which does not start from an impartial base, whilst the latter implies a line of reasoning which infers guilt of a particular offence from a perceived propensity to so act.  The concepts are related, but not identical.

It might be thought that I have taken wider exception to the conduct of the trial than was taken by counsel in arguing the appeal.  However the point of the appeal was always the absence of directions as to evidence of other criminal conduct. It is not possible to consider that aspect in isolation from the issues to which I have referred.  The conduct of the trial must be considered as a whole. This trial always posed substantial difficulties. It required sustained and rational thought about the relevance or otherwise of the whole body of evidence to each count on the indictment and about the possible misuse of that evidence.  Had there been  detailed directions as to the relevance of the various aspects of the evidence to the respective counts, identifying appropriate uses and warning against possible abuses, it would be possible to say that the system had done all that it could to ensure that the verdicts were reached in accordance with law, notwithstand the inevitable difficulties of such a trial.   However the jury was given inadequate directions as to the quite complex issues involved in the use of this evidence. It is quite likely that the evidence was misused. The appellant has not had a fair trial, and he did not cause that outcome.   In the circumstances, I would quash all convictions and sentences and order  new trials on counts 1, 2, 3, 5, 6, 7, 8, 11, 12 and 14. 

Save for the matters to which I have specifically referred, I am in general agreement with the reasons prepared by Thomas J.  In particular, if the convictions are to stand, the application for leave to appeal against sentence should be dismissed.