SUPREME COURT OF QUEENSLAND

1. McMURDO P : I agree generally with the reasons for judgment of Thomas JA and with the order he proposes.

2. THOMAS J A: The appellant was convicted of the murder of a three year old female child. This is his appeal against conviction.

3. The grounds of appeal are that the learned trial judge failed to direct the jury adequately as to the use that might be made of previous uncharged acts of violence by the appellant against the child; that her Honour erred in permitting evidence to be adduced of his violence towards the child’s mother; and that her Honour failed to direct that such evidence was entirely irrelevant to the question whether he had murdered the child.

Summary of evidence

4. The deceased girl whose first name was Brooke was born on 15 August 1995. At the material times she was a three year old who lived at the Gold Coast with her mother (MsHanley) and the appellant who was her mother’s de facto partner. That relationship had commenced about five months earlier and had been marked by some episodes of violence by the appellant towards both the mother and the child.

5. The child apparently died shortly before the arrival of an ambulance at the appellant’s address shortly after 2.00 am on 25 July 1999. The appellant was the only person then present with the child. The ambulance officer found no signs of life and noted dependent lividity in the lower part of the child’s body. Having noted multiple bruising to her abdominal area he asked the appellant how she came by those marks. His response was “a drunk bloke kicked her down the street”. The officer asked him if he had notified the police to which he replied “No”.

6. Post-mortem examination revealed that the child was substantially below average weight for her age. There were multiple injuries both external and internal. Specifically there was a severe and extensive tearing of the mesentery and lacerations of the liver – the “fatal injuries”. Other internal organs were also damaged. There was internal bleeding of such quantity that the child had lost approximately one half of her blood volume. In addition the following injuries were noted:

• Substantial bruising at the navel area;
• Substantial bruising of the left lower abdomen;
• Substantial bruising of the lower right abdomen (near the groin);
• Bruising to the left lower chest and three rib fractures;
• Blood in both chest cavities (the injuries causing that bleeding were thought to have occurred within 24 hours of death);
• Multiple bruising of both arms (with a particularly severe bruise to the right forearm);
• Multiple bruising of both legs especially to the left lower leg;
• Bruising and abrasions to the left upper forehead;
• Bruising to the right cheek and injury outside right eye;
• Various less significant bruises of indeterminate age.

7. Dr Naylor, who performed the post-mortem, considered that there must have been a number of impacts during a period between a number of hours and up to a day or two before death. He considered that the stomach bruising was caused by separate blows or trauma. DrCollins said that while it was possible that the stomach injuries all occurred at the same time from one blow which might have radiated through a number of folds and given the impression of multiple episodes of trauma, he considered that it would be an unusual injury for one episode of blunt force trauma to cause all that damage.

8. The injuries to the liver and mesentery required a degree of force similar to that involved in a motor vehicle accident, with the most likely cause having been punches, kicks or stamping, particularly with an unshod or softly shod foot. In Dr Naylor’s opinion once the injuries to the mesentery had been sustained the child could only have survived for a few hours. However DrCollins expressed a view that the fatal injuries could have been present for up to approximately 24 hours. The force necessary to produce the potentially fatal injuries was described by DrNaylor as “considerable force” and by DrCollins as “severe force”.

9. At material times Ms Hanley worked in a nightclub commencing work at 10.00pm. Accordingly the appellant had sole care of the child for substantial periods in the nights leading up to her death. In particular on the nights of Friday 23 July and Saturday 24 July (the night of the death) Ms Hanley left the child in the appellant’s care at about 9.00 pm. Ms Hanley’s evidence, which was not challenged in these respects, shows that no relevant harm came to the child in her presence. All the harmful episodes occurred when the appellant was with the child. On each occasion when harm befell the child the appellant quickly gave an account to MsHanley explaining the injuries. There is no doubt that he had the sole care of the child between 9.30 pm until 1.00 am on the Friday night, at around 8.15pm on Saturday night when he took her on an excursion to return a video, and between 9.30 pm and the time of death on the Saturday night. There is equally no doubt that the fatal injuries were inflicted on the child during one of those periods.

10. Evidence was adduced of the appellant’s mistreatment of the child and her mother over the course of the relationship. Ms Hanley, without objection, gave evidence that she had commenced living with the appellant early in 1999 and had spent two months with him at her mother’s house at Woody Point. Towards the end of May they (and the child) moved to a unit at Back Street, Biggera Waters. Whilst living at Woody Point Ms Hanley had fallen pregnant, and after consultation with the appellant, terminated the pregnancy. After that, according to her, the relationship changed, particularly the appellant’s conduct towards the child. Ms Hanley gave evidence of an occasion at Woody Point when she tried to leave the appellant but he pursued her down the street, struck her on the arm and forced her to let go of her bag. Later when her mother was driving her to the train station the appellant pulled her hair and flicked her ears and alighted onto a different portion of the train. Some other occasions of domestic violence towards Ms Hanley, the details of which do not need restatement, occurred when the child was not present. On the account given by Ms Hanley the appellant’s conduct on these occasions was reprehensible, but the assaults described were not particularly serious.

11. MsHanley gave evidence of an occasion at Woody Point, whilst she was absent from the home searching for alternative accommodation. The appellant telephoned her saying that the child had fallen down the backstairs and that she had a really big bruise on her face. When she returned home she found that the child had a “massive bruise on her cheek”. Ms Hanley went on to describe a number of incidents of assault by the appellant upon the child. One of these was incidental to an assault when he pushed Ms Hanley who was holding the child. Another was described by MsHanley as bouncing the child excessively on a bed, and another as twisting the child’s ear. She described a further occasion when she had followed the appellant at a shopping centre carpark after he had told her to walk away and to meet him at the car. She saw him smack the child “very, very hard” on the bottom. When she asked him to explain his actions he said that there was a car there and that she was going to get hit by it. On another occasion the appellant took the child for a walk to collect a video. Whilst absent he called Ms Hanley on his mobile telephone and said that Brooke had fallen over and he could not believe how brave she was; that she had kept on walking after she had fallen over. On their return she noticed a bruise on the child’s forehead and a graze to her nose.

12. The events of the last fortnight of the child’s life deserve close attention. On 12July a local doctor, Dr Singh, examined her and sent her to hospital where she was admitted. She had been brought to him by Ms Hanley over a sore thumb. The doctor detected dehydration and also noticed three fingermark type bruises on the child’s stomach which Ms Hanley attributed to the appellant’s excessive bouncing of the child on the bed. She was admitted to hospital, but on the following morning MsHanley unilaterally took her home, and commenced to pack. A disagreement erupted between her and the appellant who then disappeared with the child. However they continued their relationship.

The 23rd and 24th July

13. Ms Hanley described the appellant’s conduct towards the child in the week commencing 19 July as “doting upon her”. On Friday 23 July Ms Hanley left for work at about 9.00 pm. By that time the child had been bathed and put to bed. At that stage she said that the child still had the fingermark bruises but no other marks. A little after midnight she was telephoned (at work) by the appellant. He told her that Brooke had “been kicked”. He told her that he had to take Brooke to the shops to get some milk; that a big guy who reeked of cigarettes and alcohol was walking towards them swearing; that Brooke had said “That man is saying naughty words” and the man had turned around and kicked Brooke in the stomach; that he thought he had a broken toe; and that he had bashed the other man “pretty badly”.

14. When Ms Hanley returned home she found that the child was suffering from a massive bruise on her stomach which was “coming up … in a purplish colour”. The appellant told her that he felt really bad about taking Brooke out but that he couldn’t leave her alone in the house. Ms Hanley said that he should call the police. He said he did not wish to do that because he did not think that the other man was moving and thought that he might have killed him. Ms Hanley suggested that they take Brooke to hospital but was dissuaded by the appellant’s statements that she was fine, that he had checked all her ribs and that she did not wince too badly. The appellant showed Ms Hanley his hands. She noticed scratch marks and swelling and that his shirt was torn. Explaining the bruise to the child’s face the appellant said that she had hit the concrete “pretty hard”. She later asked Brooke who had hit her and was told “the naughty man did it”.

15. Evidence was admitted, without objection, of a number of self‑serving statements of the appellant about that alleged incident. Some inconsistencies are apparent. MrMontague, a friend of the appellant, gave evidence to the effect that after midnight on that occasion he had received a call from the appellant for assistance. The appellant had told him that he had been in a fight with “two pissed cunts” and that Brooke had been kicked by one of them. MrsPickering recalled a similar statement. However, to Mr Waters, whose store he visited that night, the appellant mentioned an incident with one drunk man. When it was suggested to him at the store that the police be called he declined on the basis that he had beaten the drunk too badly, as he had kicked the man for five minutes. He left saying that he was going to take the child to hospital. He did not do so.

16. Mr McKay, who heard the account given to Mr Waters, drove around the area looking for the alleged offender, but found no-one. Police also made extensive enquiries to find evidence that supported his account of an altercation with a drunk. No relevant telephone calls had been made to the police communications centre; hospitals were checked; a doorknock failed to reveal anyone who had witnessed any such incident; and the alleged scene failed to reveal any blood or other evidence.

17. When interviewed by the police at the hospital shortly after the death the appellant described the alleged incident. He said that he had woken the child at midnight. The purpose of his nocturnal excursion was not well explained. He claimed he was going to get “some milk and lemonade and stuff and some Aspro Clears”. He also said he had arranged to meet an acquaintance, MrMontague, at the 7‑11 store at around that time. He took the child from her sleep and in due course they were walking up a long street when two swearing drunks were walking in the opposite direction towards them. The child had said that he was a naughty man and that he was using bad words. Upon this, according to the appellant, “he turns around and boots her hard as he can in the stomach”. Brooke went flying “a good six feet” or “about eight feet” through the air. The appellant “started beating the shit out of him” and eventually knocked him out. He was a “pretty big bloke … around 110kilograms”. According to the appellant the man did not put up much of a fight - “he didn’t fight back at all. Absolute coward,” and the man’s companion had done nothing to back him up.

18. The appellant’s account to police continued that after beating the man senseless, he saw Brooke lying on her side on the footpath. She was not crying, but was “in a lot of pain” and said “I’m sore”. She lifted up her dressing gown and jacket and he saw that there was a bruise right in the centre of the stomach. He was closer to the 7‑11 than he was to home, so he thought he would go in and use the telephone. At that stage he was really scared because “I hurt this guy pretty bad and I wanted to get out or something so I grabbed her like a football and I was running with her”. He thought that she had got a bruise across the shoulder when he picked her up. He had carried her “through the legs and I had her draped over like that and I was running with her to the shop”. He agreed that the bruising round her lower abdomen and groin could have been caused when he grabbed her between the legs taking her to the 7‑11. He said “I didn’t give any second thoughts that you know being gentle with her, I just picked her up and I was running”.

19. His account continued that she had come out in bruises all over her the following morning and that she had not been able to keep food down. However “She didn’t start bleeding till tonight. Like late tonight. … Like only the last few hours. Three or four hours”. He had put her in the bath to clean her up and everything was fine. Then she started coughing up blood for about two hours and it was “like really dark blood”. She had brought it up three or four times but “she was just dribbling, she had nothing in her stomach to throw‑up”. He had telephoned MsHanley who had asked him to call a doctor. In between her calling him and his arranging to call a doctor a friend of his came over named Ramona. “She picked us up and Brooke … we went for a drive … to the petrol station … to pick up my phone. I left it in the back of Jamie’s car the night before.” A little later he said that this was earlier in the night, he had no idea what time he picked up his mobile phone. On the way back they had stopped at another petrol station where he purchased a box of Aspro Clear for his neck. Eventually he called for an ambulance and at someone’s suggestion had unsuccessfully attempted to administer CPR.

20. MsHanley gave evidence that although the child had vomited twice during the Saturday morning she had been given flat lemonade and “seemed fine” except for a “sore tummy”. They had pizzas for dinner. A call was then received from the local video store requiring the return of a video. The appellant left soon after in order to return the video, and took the child with him. When they returned in due course she noticed that the child was very ill. On this occasion she was seen by Ms Hanley to be vomiting a brownish liquid.

21. Unbeknown to Ms Hanley an independent witness Ms Colthup had observed at least part of the excursion on which the appellant had taken the child. At that time (about 8.15pm) MsColthup had seen the appellant pulling the child by the hand along the pavement. The child did not appear to be going where he wanted. Suddenly she saw the man boot her up in the air like a rag doll still holding onto her hand. She saw the child come back down onto the ground. She described the kick as a very, very hard kick to the bottom part of the child’s leg. The witness was sufficiently distressed by what she saw to follow the appellant, and telephone the police. Eventually she and her companion stopped near the appellant and the child and asked if the little girl was okay. The appellant asked “Why?” and was told “We’ve seen you kick her”. The appellant said “Have you got a badge?” Upon receiving a negative response the appellant told them to leave them alone, and picked up the child and walked off. She identified the appellant as the man in question. The identification is not challenged.

22. When they returned later Ms Hanley noticed that they did so through the back door. Upon being asked why he did so he asked her for a description of the “social worker” people who had visited Ms Hanley after the earlier hospitalisation incident. He then told her that a woman had approached him and asked him what he was doing with Brooke and he had told her to “F off”.

23. Upon their return Ms Hanley noticed that Brooke was very ill and continued to vomit. A little later a male friend of Ms Hanley called in his motor vehicle to take MsHanley to work. Upon ascertaining that she was to be picked up by this man the appellant “flipped” and said “Well take your little bitch with you then”. He then handed the child to Ms Hanley. Initially she took the child with her down to the car but a little later realised that she could not take Brooke to work with her. So, according to MsHanley, she took the child back to the appellant who accepted her and said “I’ll see you in the morning”.

24. After arriving at work Ms Hanley received a number of phone calls from the appellant which his counsel described as “not entirely rational”. He said “I’ve got some good news and some bad news. The good news is I’m out of your life. The bad news is the police will come to take away Brooke”. Ms Hanley said that she was coming home and was told “No, no don’t worry, April fools”. Soon afterwards the appellant phoned back and said “It’s not April is it?” Ms Hanley told him that he was sick and not to call up again unless it was anything to do with Brooke. She hung up because her boss was watching. The appellant telephoned again a few minutes later and said “If you hang up again I’ll bring Brooke (to the nightclub) and throw her …”. MsHanley again said she was coming home and was told “Don’t bother because I’m not going to be here I’m taking her to the doctor’s now. It’s organised”. She asked him to keep her posted. He made another telephone call to her asking where the house keys were. He called her again and told her that he had given Brooke an aspirin and a vitamin but that she was throwing up blood and that he could not get any response from her. She told him to call an ambulance and that she was coming home. Eventually she did.

25. When she returned home ambulances were already there and the child was dead. She was allowed to nurse the body which she noticed was covered in bruises. She asked the appellant “How did she get all these?” and was told “It must have been the other guy the other night … who … layed into her while I got into the first guy that kicked her”. Ms Hanley stated however that there were more bruises on the child’s abdomen then there had been when she had last seen her.

26. The appellant did not give evidence.

Grounds of appeal

Directions concerning uncharged acts by appellant against the child

27. Evidence of the attitude revealed by the appellant towards the child and of his previous acts of violence towards her was relevant and admissible on a number of bases. Such evidence was described by the learned trial judge as “background facts”. Her Honour’s comments on this subject included:

“[Defence counsel] said to you that the picture the background evidence presents is one of Mr Self handling Brooke a bit rough and that is all. [Counsel for the Crown] said to you that the same evidence points to a different attitude that Mr Self had towards the child which is relied on by the Crown as part of its circumstantial case.”

The defence was that it was not proved that the appellant had caused the fatal injuries, and in particular that the Crown had not excluded the hypothesis that death was caused by the assault of an unidentified third party at about midnight on the Friday night. The evidence of other acts of aggression was explained by defence counsel as unexceptional violence by someone inexperienced with small children of a low and irrelevant order which had nothing to do with the death.

28. It was submitted that her Honour should expressly have told the jury that:

1. the only purpose for which evidence of his acts of violence to the child (including the assault described by MrsColthup) could be used was to allow the other evidence to be assessed and evaluated within a realistic contextual setting;

2. evidence of this other activity cannot be used to prove the offence charged;

3. they must not reason from it that the appellant was the kind of person likely to commit the offence charged (a propensity direction).

The authorities principally relied on for these submissions are BRS v The Queen,^[1] Gipp v The Queen,^[2] R v Vonarx^[3] and KRM v The Queen.^[4]The ensuing discussion will show that the first two propositions are incorrect, and that the need for a propensity direction is by no means universal. The extent to which such a direction is necessary will vary from case to case. Whether it was necessary here will now be considered.

29. In the present case, the starting point was the production of evidence of a victim who had been battered to death. Compendiously stated, the only issues in the case were:

1. Did the appellant cause the injuries that resulted in death?; and

2. Did he do so with the requisite intent to cause grievous bodily harm?

30. As to issue (1), apart from the appellant’s unproven assertion that while the child was in his care an unidentified third party injured her, there is nobody else who could have inflicted the very extensive and wide-ranging injuries that were found on the child’s body. Practically all of these injuries, and certainly the fatal injuries, were caused during the last 26hours of the child’s life at times when she was in the care of the appellant.

31. In my opinion the use of evidence of the appellant’s previous aggressive acts to the child was not limited to “background facts”. This evidence showed a recurring antipathy or animosity towards the child which might properly assist a jury to infer intent to cause grievous bodily harm. In offences of violence, and particularly in homicide cases, evidence of previous dealings between an offender and the victim and of his attitude toward the victim commonly assists in the drawing of such an inference. Sometimes evidence of previous acts of hostility to the victim is received as evidence of motive, sometimes under the more general guise of relationship between the parties, and sometimes as evidence of state of mind. An inference of intention to cause grievous bodily harm does not have to be derived solely from evidence of the nature and extent of the injuries or violence inflicted. In the present case the evidence of the fatal abdominal injuries was in any event adequate to justify an inference, absent accident, that whoever inflicted such injuries must have had an intention to cause grievous bodily harm to the child. Indeed, on the issue of intent, the summing‑up referred only to the physical force used, which the medical evidence described as “considerable” and the circumstance that such force was inflicted upon a child. But it was by no means necessary that her Honour should have confined her directions on that issue to the physical force used. The fact that her Honour chose not to refer to the evidence of hostility or animosity towards the child that might be inferred from his previous assaults was in my view an omission that favoured the appellant.

32. It also seems to me that such evidence could rightly be used to rebut accident or misadventure and as making the appellant’s unlikely exculpatory story more difficult to accept. In this respect, once again, the learned trial judge did not tell the jury that they could use the evidence for that purpose. But neither did her Honour warn the jury in terms suggested in BRS and Gipp. Ought such a direction have been given? A dilemma arises from superficial similarity between legitimate reasoning and illegitimate propensity reasoning of the kind that was in issue in BRS and Gipp. Specific animosity towards the victim can rightly aid the drawing of an inference that an accused person with opportunity to do so did assault the victim. It may make such an inference considerably more likely in a circumstantial case.^[5] In the context of such a case, a warning that such evidence should not be used to conclude that the accused was the kind of person likely to commit the offence has the capacity to confuse. For example a direction that “you can use this evidence to show antipathy but not propensity” might seem a little precious, and might be taken to contradict or obfuscate the legitimate use of the evidence. A good example of the legitimate use of relationship evidence in a homicide case is Wilson v The Queen:^[6]

“It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.”^[7]

33. Reasoning of this kind is not prohibited by BRS or Gipp. What those decisions essentially forbid is reasoning from stereotype^[8] and the use of prejudice based on a general character trait. That is to say a jury must not reason along the line that an accused person is likely to be guilty of a particular offence because he is shown to have a sexual propensity or because he is generally violent or as the case may be.

34. Counsel for the appellant raised no objection to the use of standard directions describing such evidence as “background” or “relationship” evidence of a kind that can assist the jury in better understanding the other evidence or in forming an integral part of a circumstantial case. The error which he submitted to have occurred was her Honour’s failure to tell the jury that they must not reason from such evidence that the appellant was the kind of person likely to commit the offence charged. The problem of identifying cases in which such warnings are necessary^[9] and those in which they are not^[10] has arisen with increasing frequency in recent times, particularly in sexual charges, but the problem that arises in the present case has not been directly addressed. I have found it very difficult to determine whether such a warning was necessary or even desirable in the present case.

35. Counsel for the Crown submitted that a distinction may be drawn between a homicide case where there is no doubt that a crime has been committed, and a sexual offence where the issue includes the question whether an offence has been committed at all. The danger in sexual offences of relationship evidence being used to prove in effect everything that needs to be proved, when the only justification for its reception is a limited purpose such as understanding the relationship, is easy to see. The danger is less apparent when the commission of a crime is clear and the evidence in question has a demonstrable capacity to assist in interpreting other evidence as more readily proving the necessary elements against the accused person. This said however, it must be acknowledged that in principle propensity evidence is capable of misuse in any situation, and the need for a propensity warning may arise in any category of case.

36. In KRM,^[11] the most recent and relevant decision of the High Court upon the use of propensity evidence and warnings thereon, the submission that there is a universal need for a warning was expressly rejected. KRM was concerned with multiple counts of sexual offences accompanied by a count of “maintaining a sexual relationship”. With respect to evidence of other uncharged sexual misconduct McHugh J (with whom Hayne J was substantially in agreement on points here relevant) thought that “sometimes, perhaps often” trial judges would need to warn juries of the limited use that could be made of such evidence and to give a propensity warning.^[12] His Honour also recognised that in some cases the giving of such a warning may excite the very prejudice that it purports to eliminate.^[13]

37. Gummow and Callinan JJ considered that in a case of the kind there in issue there would not always be a need to give a propensity direction, and similarly recognised that in some circumstances such a direction might be prejudicial to the accused and distract a jury from focussing upon more relevant matters.^[14] Their Honours also considered that, “it will often be right for a trial judge in a case of multiple sexual offences" to give a warning.^[15] Kirby J likewise rejected the submission that there is a universal need for such a direction in such cases, and acknowledged that in some cases the risks of propensity reasoning may be minimal.^[16] His Honour also acknowledged the risks that attend multiplying obligatory judicial directions. On the other hand His Honour considered that a propensity warning should have been given in that particular case, and that there were some types of cases in which it would ordinarily be “proper” to give such a warning. The proper cases identified by his Honour were those where there was more than one complainant; and (possibly) those where the acts constituting the crime were not discreet and clearly identified; or those where general evidence was given that lacked specificity. His Honour continued:

“Whether it would be needed in cases of multiple counts involving specific offences (such as murder, armed robbery or other crimes of violence) would depend on the circumstances. But where the offences charged invite, and permit, evidence of a continuing association, or evidence of a more general character (for example, crimes such as drug trafficking or the relationship offence in question here) there should be a greater judicial willingness to provide the warning against propensity reasoning than elsewhere.”^[17] (Citation omitted)

38. The reference to multiple counts of murder suggests to me that his Honour did not regard a single count of murder where the evidence is reasonably specific (as it is in the specific case) as a case where it would ordinarily be proper that such a warning be given. Whether or not I am mistaken in this, I may say, with respect, that this accords with my own view that in summing-up in a circumstantial case of the present kind an excursion into the subject of propensity reasoning tends to cut across the legitimate reasoning that occurs in determining the combined effect of circumstantial evidence.^[18]

39. My hesitation in reaching a conclusion on this important point is added to by the fact that a propensity warning could have been given, that the evidence in question includes some relationship evidence, by the perceived need for such directions in cases such as ,BRS^[19] Gipp^[20] and Vonarx,^[21] and by the notion that when in doubt it is safer to give a direction. However I do not think that those factors are sufficiently cogent to require a conclusion that the learned trial judge erred in failing to give such a direction here, or that such directions are ordinarily necessary in such cases.

40. In a case where the legitimate effect of the evidence is plainly incriminatory, there are dangers in insisting upon directions that unduly dissect the jury’s reasoning process. There are also dangers in appeal courts exponentially prescribing warnings that must be given by trial judges upon penalty of re-trial. I also think, consistently with the reasoning of McHughJ in KRM,^[22] that any risk of prejudice in the present case arises not so much from propensity reasoning as from the danger that common assumptions about probability or improbability of sequences are often wrong. It might therefore be thought that if there was a need to warn the jury about the use of this evidence it would have been preferable to warn against too readily making such an assumption rather than to give a propensity warning. But once again I fail to see that the desirability of a direction of either kind in the present case was sufficiently marked to regard its absence as an error. It is a subject about which different minds might well take different views, and lies very much in the domain of the jury. The need for a judicial warning only arises when there is a real risk that the jury will resort to unfair prejudicial reasoning.

41. I have therefore concluded that her Honour’s failure to give directions of the kind now suggested should not be regarded as an error.

42. It may be noted that no request was made at trial that any such directions be given.

Violence towards Ms Hanley

43. The evidence of the appellant’s prior relationship with the child might well include evidence of violence towards Ms Hanley in the presence of the child. It is open to think that in such a household (mother, young child and fairly recent de facto husband) it would be difficult if not impossible to understand the “relationship”^[23] between the husband and the child without knowing the nature of his relationship with the mother. However while evidence of violent conduct towards MsHanley on occasions when the child was not present might be of some relevance in understanding the relationship between the appellant and the child, if objection had been taken to evidence of this kind it would no doubt have been upheld.

44. The evidence however was not objected to by experienced and competent counsel who appeared for the appellant at trial. Further, in his address defence counsel suggested that the appellant’s conduct had been “a bit rough” and that is all. It may have been defence counsel’s aim to present Ms Hanley in a poor light and that in order to do so it was considered worth the risk to deal with details of the relationship beyond those directly affecting the child. More pertinently, there was a risk that exclusion of the appellant’s aggressive acts towards MsHanley might be detrimental to the defence in that it would tend to bring into sharper focus the appellant’s specific aggressive attitude towards the child. Having regard to the conduct of the trial it seems to me that the reception of evidence of the wider domestic picture was a deliberate choice. It would of course have been preferable had the learned trial judge queried counsel as to why objection was not taken to the evidence of MsHanley’s domestic relationship with the appellant. But in the context of the trial, including the addresses, defence counsel can be seen to have embraced the broader domestic picture. He painted a picture of an uneducated young fellow who was a “bit too rough” who also doted on the child and on a number of occasions invited the jury to take the wider picture of a man who “just doesn’t know any better”. I would infer that the reception of the evidence without objection was a deliberate forensic choice.

45. The learned trial judge made no reference in her summing‑up to this particular facet of the evidence. Indeed, in the context of the trial, such evidence would seem to have been inconsequential. However whilst it is sometimes virtually impossible for a trial judge to exclude all forms of inadmissible evidence without proper assistance from trial counsel, the fact that such evidence was received might be regarded as an error. Whilst I have reservations about this, consideration will now be given, on the assumption that the adduction of such evidence was an error, to the question whether the proviso should be applied.

Application of the proviso

46. The Crown case was very strong. The injuries could only have been inflicted at a time when the child was in the appellant’s sole care. They were of such severity that they could only have been inflicted with an intention to cause grievous bodily harm or worse. The appellant’s only escape is through a doubt arising from his unproven and on its face extraordinary assertion of mishap at the hands of an unidentified third party.

47. If one were initially tempted to think that the appellant’s Friday night story was entitled to credence or might raise a reasonable doubt in his favour, it must surely be dispelled by the observed conduct of his cavalier kicking of the child on the following night, at a time when he would surely be nurturing and protecting the child who had so unluckily been the victim of a frightful attack so recently when in his care.

48. Even if, contrary to my view, a propensity warning ought to have been given, I would dismiss the appeal because no miscarriage of justice could have been occasioned by its omission in the circumstances of the case.^[24] Omission to give a propensity warning when one ought to have been given, particularly in trials of sexual offences, is ordinarily fatal to a conviction,^[25] but this does not follow if upon a review of the evidence the appellate court is satisfied that the error could not have affected the result. Even on the assumption that a propensity warning should have been given Ido not think that such an omission, when considered along with the error that has been identified in relation to evidence concerning dealings with Ms Hanley, could have deprived the appellant of any chance of acquittal that was fairly open.^[26]

49. In expressing this opinion I have taken into account the conduct of the defence, and the failure to raise any question at trial on either of the points that are now raised. Ialso take into account the fact that her Honour’s summing‑up did not underline the strength of the Crown case, and indeed in my view erred more against the Crown than against the accused in failing to say things that might have been said about the evidence in question. I also note that in KRM (above) three members of the court (Hayne and CallinanJJ), and possibly Kirby J, would apparently have been prepared to apply the proviso if that had been necessary.^[27] However decisions on application of the proviso are so much the product of the totality of the evidence and conduct of the particular case that reference to precedent (as distinct from principle) is of little value. In the present case there was one victim and the evidence was confined to specific events. The conclusion that the appellant was the person who inflicted the fatal injuries was virtually irresistible as was the inference that he did so with intention to cause grievous bodily harm. If the additional domestic relationship evidence concerning the mother had been excluded and if the suggested additional directions had been given, the jury, acting reasonably upon the evidence properly before them and applying the correct onus and standard of proof would inevitably have convicted the appellant. To my mind on the evidence there is not the slightest risk that an innocent person has been convicted or that the errors to which I have referred could have made any difference to the result.

50. I consider that no miscarriage of justice has actually occurred^[28] and that the appeal should be dismissed.

51. PHILIPPIDES J: I agree with the reasons for judgment of Thomas JA, and with the order proposed that the appeal be dismissed.