R v WO[2006] QCA 21

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Williams JA.  I agree with the orders proposed by His Honour, and with his reasons.

2. WILLIAMS JA:  The appellant went to trial in the District Court in Cairns on an indictment charging one count of maintaining an unlawful relationship of a sexual nature with circumstances of aggravation (the relationship involved carnal knowledge, the child was under his care, and the child was under 12 years of age), five counts of indecent treatment of a child under 16 years with circumstances of aggravation (the child was under his care and under 12 years of age), and two counts of unlawful carnal knowledge of a girl under 16 years with circumstances of aggravation (the child was under his care and under 12 years of age).  The learned trial judge directed a verdict of not guilty with respect to one of the charges of indecent treatment (count 4 - the incident associated with a music lesson) because of a "conflict in the evidence particularly about dates".  The jury returned verdicts of guilty on all the other counts. 

3. The complainant girl was the appellant's granddaughter who was aged about 11 when the offences commenced. The maintaining charge related to the period 30 July 2002 to the 11 September 2003. Complaint was made in September 2003.

4. The complainant's evidence was in the form of a written statement, a tape prepared pursuant to s 93A of the Evidence Act 1977, and pre-recorded evidence taken pursuant to Div 4A of that Act.  On the appeal against the convictions being called on in this court, senior counsel for the appellant abandoned the grounds of appeal as stated in the Notice of Appeal and leave was given to substitute a ground in the following terms:

"A miscarriage of justice was caused by the erroneous direction given and the failure of the trial judge to properly direct and warn the jury in relation to the evidence of uncharged acts."

5. The complainant's evidence recounted descriptions on at least four occasions of touching on the vagina and breasts, and two incidents of penile vaginal penetration. However, relevantly for present purposes, her evidence also included references to non-specific sexual misconduct by the appellant. The following are examples of such evidence:

"My granddad always - always look after us every time when Nan's not at home and granddad asks us to sleep with him . . . he [indistinct] come into me to have sex, touching me and that."

"Q.  And how was he touching your vagina this time? - A.  Mm um, well, um, he - he just kind of played around with it all the time and yeah."

"Q.  And what happens there?  - A.  Um, well anywhere I sleep he come - he comes in and all that and starts mm, starts to touch me and all that and mm, yeah . . .

Q.  Where is this at? - A.  Mm that's - it was always happens when we go camping and all . . ."

"Q.  And what you said to me before at - at the camping sites where your granddad [indistinct] his hand on your vagina is that where those - at the house or just [indistinct]? - A.  Yeah yeah he does the same thing at - at home and that. 

. . .

Q.  And what does he say to you? - A.  Mm, he - he just - he just tells me that if he can - if he can touch me and all that and um, I don't have to talk to him . . .

. . .

Q.  What he does he do? - A.  Mm he tries to - tries to er, um, he tries to ah, get [indistinct] so he can touch me.

. . .

Q.  No? Alright, so how many times has that happened at your house?  -  A.  About a - mm, a lot of time."

"Q.  So every Monday - does this happen every Monday?  - A.  Mm, it happens nearly every night. 

Q.  Nearly every night?  -  A.  Yeah.

. . .

Q.   Okay.  So from Easter, nearly every night or from Christmas nearly every night?  - A.  Mm, from Christmas to Easter and um yeah, nearly every night."

6. The learned trial judge commenced her summing up by accurately setting out the charges which the jury had to consider. The jury were told that the assessment of the credibility of all the witnesses, and in particular the complainant, would be critical to their decision. Reference was made to the lapse of time between when the alleged offences occurred and the trial and how that could affect the memory of a witness. The summing up also dealt with the support a witness may get from evidence given by another. The jury were fully and accurately directed on the burden of proof and on the fact that each of the charges had to be considered separately. The summing up then dealt with the elements of each of the offences.

7. In that regard it is important to note that the elements of the offence of maintaining a sexual relationship with a child (s 229B of the Criminal Code) was amended effective from 1 May 2003, a date falling within the period alleged in the indictment.  Without there being any formal argument or ruling on the point, both trial counsel and the learned trial judge proceeded on the basis that the former law applied to the charge against the appellant.  Consequently the jury was instructed that they had to be satisfied that three or more specific offences of a sexual nature occurred within the period.  Specifically the jury was instructed that to convict on the maintaining count they would have to be "satisfied beyond reasonable doubt" that on three occasions he committed an offence of sexual nature against her.  The jury were then instructed that the prosecution relied on the other seven counts on the indictment "as being the offences that you can rely on".  An express instruction was given that for purposes of the maintaining count the jury could rely upon evidence relevant to count 4. 

8. Having fully and accurately dealt with the elements of each of the counts on the indictment the learned trial judge went on in the summing up to say:

"Now the defence case, particularly with respect to the maintaining charge is that no sexual offences were committed at all and therefore there was no relationship of a sexual nature between [the appellant] and [the complainant].

[The appellant]'s case is that he did not have unlawful carnal knowledge of [the complainant], that he did not touch her indecently or inappropriately.  It is also his case that during the period from around July 2002 - sorry, from late 2002 - no, I think the evidence was from early 2002 until sometime late in 2002 [the complainant] wasn't even living with him.  So, the argument of the defence is that certainly on a day to day basis [the complainant] was not in his care during that period. 

Now, you have in heard in addition to the specific counts on the indictment, you have heard [the complainant’s] evidence with respect to what happened on the trip home from the music lesson.  You have also heard [the complainant] give evidence about other offences against her where she said, for instance, that the sexual behaviour had been happening a lot.  That was a phrase she used and that she said that on one occasion that the sexual offending had been happening nearly every day or nearly every night. 

Now, of course, [the complainant] was unable to give any specific details about other incidents and if you have a doubt about any of the specific offences then you should only convict [the appellant] on the basis of any uncharged acts which does include the music lesson incident.  If after carefully scrutinising [the complainant’s] evidence you are satisfied beyond reasonable doubt that [the appellant] did commit these other offences or these other acts during the period alleged on the indictment, that is 30 July 2002 to 11 July 2003. 

Now, if you have a reasonable doubt about - with respect to [the complainant’s] evidence on any specific count on the indictment then you should take that doubt into account when you consider your assessment of her credibility generally.  So if you have a doubt about any particular count on the indictment or [the complainant’s] evidence with respect to a particular count on the indictment then that is something you can take into account when considering her overall credibility.  But at the end of the day it is a matter for you as to what evidence you accept and what evidence you reject."

9. The learned trial judge then went on in the summing up to outline evidence given by the complainant with respect to particular counts on the indictment.

10. The balance of the summing up covered relevant issues with respect to the complainant's evidence, the medical evidence, the evidence as to the pretext telephone conversation between the complainant and the appellant, evidence of complaint, and the sworn testimony of the appellant denying the commission of any of the charges.

11. Senior counsel for the appellant's attack on the summing up concentrated on the fourth paragraph in the extract quoted above. It seems tolerably clear, and this was accepted in argument before this Court, that the reporters have erroneously punctuated that paragraph. Clearly there should be no full stop after the word "incident"; relevantly the passage should be read as saying: ". . . you should only convict [the appellant] on the basis of any uncharged acts, which does include the music lesson incident, if after carefully scrutinising [the complainant’s] evidence you are satisfied beyond reasonable doubt that [the appellant] did commit these other offences . . . " It was not disputed that on the charge of maintaining a sexual relationship general, non-specific evidence of regular conduct of a sexual nature throughout the relevant period was admissible. In consequence it was not submitted that the passages from the complainant's evidence quoted above were wrongly admitted.

12. In the extract quoted above from the summing up the reference by the learned trial judge to "other incidents" and "uncharged acts" were references to the complainant's evidence quoted above.

13. Clearly in the fourth paragraph of the extract the learned trial judge was telling the jury that they could have regard to that evidence for certain purposes when considering their verdict. The jury would clearly have understood the learned trial judge to be telling them that they "should only convict . . . on the basis of any uncharged acts . . . if after carefully scrutinising [the complainant’s] evidence [they were] satisfied beyond reasonable doubt that [the appellant] did commit these other offences." But what offence could they convict the appellant of by relying on their being satisfied beyond reasonable doubt that he committed the "uncharged acts"? Senior counsel for the Crown contended that the whole passage related only to the maintaining charge and the jury would clearly have understood that what they were being told was that if not satisfied of three of the "specific offences" they could convict on the maintaining charge if they were satisfied beyond reasonable doubt of one or more of the "uncharged acts" so as to make up the three necessary sexual offences.

14. I am not satisfied that a jury would have placed that limited construction on what was said by the learned trial judge. The context in the summing up in which the passage appears does not clearly relate it only to the maintaining charge. The paragraphs immediately before and after that in question appear to be dealing more generally with the charges faced by the appellant and in consequence a reasonable juror could well have concluded that what the learned trial judge was saying in the passage in question related to all or any of the counts on the indictment. A juror could well have concluded that a doubt with respect to all or any of the specific charges could be dispelled by reliance on the uncharged acts.

15. That such could be the interpretation placed by the jury on the passage in question is strengthened by the fact that no "propensity warning" was given in the course of the summing up. The jury was not told that the evidence as to "uncharged acts" was only relevant to the maintaining count, and they were not warned that it would be "quite wrong for you to reason because you are satisfied that he did such acts on other occasions, therefore it is likely that he committed a charged offence".

16. Once the jury were told that they could "convict . . . on the basis of any uncharged acts" it was incumbent on the learned trial judge to direct the jury as to the limits on the use they could make of such "uncharged acts" and as to the wrongfulness of propensity reasoning.

17. It may well be that, following KRM v R (2001) 206 CLR 221, there is no absolute rule that a judge must always warn the jury against propensity reasoning on a maintaining charge.  But where, as here, other specific counts are before the jury ordinarily such a warning would be called for particularly where the jury were told that they could use evidence as to uncharged acts for a limited purpose in concluding that a verdict of guilty should be returned.

18. In BRS v R (1997) 191 CLR 275 at 305 McHugh J said:

"If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence.  If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose.  In some cases, the judge may need to be more specific.  He or she may need to direct the jurors that they cannot use the evidence for an identified purpose.  If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence."

19. Further, in the same case Kirby J said at 329:

"One common thread can be seen in most, if not all, of the cases where propensity evidence has been admitted.  In such cases the trial judge will ordinarily, even "invariably" require the jury to consider very carefully the use which they can make of the evidence of similar facts and to bear in mind the dangers of reasoning from a suggested propensity and their obligation to try the accused upon the counts of the indictment not for other criminality or moral blemishes which those facts reveal."

20. Those passages, and other statements to like effect, have been regularly approved in appellate courts: see, for example, Gipp v R (1998) 194 CLR 106 at 132-3 and 156-7 and R v Huebner & Maher [2004] QCA 98.  Whilst the High Court recognised in KRM that there is no absolute rule that a judge must always given a propensity warning, fairness to an accused will ordinarily require such a warning to be given, particularly where the jury may make use of propensity evidence for limited purposes in the case before them.

21. The case against the appellant here could be regarded as a strong one, but nevertheless the error in the summing up could well have prejudiced his fair trial. In the circumstances this Court must quash the convictions and order a re-trial.

22. The orders of the Court should therefore be:

1. appeal allowed;

2. set aside the convictions on all counts;

3. order a re-trial on all counts on which the appellant was convicted.

23. KEANE JA:  On 8 August 2005, the appellant was convicted after a trial by jury of four counts of indecent treatment of a child under 16 years of age, two counts of unlawful carnal knowledge and one count of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years.  The learned trial judge directed a verdict of acquittal in relation to one count of indecent treatment.

24. The appellant originally applied for leave to appeal against both conviction and sentence, but the appellant's grounds of appeal relate only to the conviction. Those grounds of appeal were abandoned, and the appellant has, before this Court, sought to challenge the convictions on the basis of argument addressed only to one ground of appeal, which was not included in the original grounds of appeal but which the court allowed the appellant to raise by leave. That ground is as follows:

"A miscarriage of justice was caused by the erroneous direction given and the failure of the trial judge to properly direct and warn the jury in relation to the evidence of uncharged acts."

The Crown case

25. The complainant was born on 12 July 1991. The offences were alleged to have been committed between 30 July 2002 and 11 September 2003. The maintaining charge related to the period between 30 July 2002 and 11 September 2003. The counts of indecent treatment related to events which were alleged to have occurred between 30 July 2002 and 31 August 2002, 31 August 2002 and 1 October 2002, 30 July 2002 and 31 December 2002, 1 January 2003 and 11 September 2003, 1 August 2003 and 11 September 2003. The counts of unlawful carnal knowledge related to events which were alleged to have occurred between 30 June 2003 and 11 September 2003, and 1 January 2003 and 30 June 2003. The complainant first complained of the appellant's conduct in September 2003.

26. The complainant's evidence was in the form of a tape-recording made under s 93A of the Evidence Act 1977, a written statement made a week later and pre-recorded evidence.  The complainant's statement described four occasions when the appellant touched her breasts and vagina while they were on camping trips.  She also described two occasions of penile penetration while she and the appellant were at home. 

27. The appellant's evidence also contained general assertions of sexual misconduct by the appellant. In the s 93A tape she complained, for example that:

"Every time my Nan's not at home … it gets worse … every time when Nan's not at home and grandad asks us to sleep with him.

He just kind of played around with [my vagina] all the time …

It always happens when we go camping …

He does the same thing … at home … a lot of times …

It happens nearly every night … from Christmas to Easter … nearly every night."

28. The Crown also adduced evidence from the complainant's younger sisters, D and K, which provided some support for the complainant's evidence. There was also evidence of the appellant's response to a pretext phone call in which the appellant made statements which could have been regarded as admissions of sexual misconduct with the complainant.

29. On 1 May 2003, s 229B of the Criminal Code was amended to remove from the law the previous need for the Crown to prove three specific offences; but the learned trial judge directed the jury on the footing that the Crown was obliged to make out its case under the previous law.

The appellant's argument

30. The appellant's argument is that the complainant's evidence of general sexual misconduct on the appellant's part gave rise to the need for clear and explicit directions to the jury regarding the use which the jury might make of this evidence. On the appellant's behalf, it is argued that the learned trial judge should have directed the jury that the incidents the subject of general complaints were not the subject of charges, and that the only value of such evidence was to show the nature of the relationship between the parties and to put acts the subject of specific charges into context. It is argued that the jury should have been warned that the evidence of "uncharged acts" could be used only if the jury were satisfied that the incidents had occurred and it was not to be used as a basis for propensity evidence, and that if the jury did not accept the complainant's evidence in relation to the uncharged acts, that would be relevant in relation to her evidence in relation to the matters the subject of charges. Finally, it is said that the jury should have been directed that, before they might convict on the charged acts, they must be satisfied beyond reasonable doubt that these events had occurred. It is submitted that no such directions were given.

31. The appellant also complains of a direction given by her Honour in the following terms which, it is said, amounted to an invitation to the jury to convict the appellant on the basis of the "uncharged acts". The direction as recorded in the appeal record is in the following terms:

"Now, you have heard in addition to the specific counts on the indictment, you have heard [the complainant's] evidence with respect to what happened on the trip home from the music lesson.  You've also heard [the complainant] give evidence about other offences against her where she said, for instance, that the sexual behaviour had been happening a lot.  That was a phrase she used and that she said on one occasion that the sexual offending had been happening nearly every day or nearly every night.

     Now, of course, [the complainant] was unable to give any specific details about other incidents and if you have a doubt about any of the specific offences then you should only convict [the appellant] on the basis of any uncharged acts which does include the music lesson incident.  If after carefully scrutinising [the complainant's] evidence you're satisfied beyond reasonable doubt that [the appellant] did commit these other offences or these other acts during the period alleged on the indictment, that is the 30th of July 2002 to the 11th of September 2003.^[1]

     Now, if you have a reasonable doubt - with respect to [the complainant's] evidence on any specific count on the indictment then you should take that doubt into account when you consider your assessment of her credibility generally."

These observations, even when read in context, seem to have been directed to the use that can be made of the uncharged acts as tending to prove the counts which involved specific sexual offences as well as the relationship element of the maintaining charge.  It certainly cannot be said that they would not have been understood in this way by the jury.  Further, it is necessary to note that the learned judge's summing-up contained no warning at all against propensity reasoning.

The respondent's argument

32. The respondent argues that the generalised complaints of the complainant are evidence which goes directly to prove the charge of maintaining a sexual relationship with a child under the age of 16 years. It is contended that the decision of the High Court in KRM v The Queen^[2] makes it clear that directions of the kind for which the appellant contends are not essential to secure a fair trial in a case where a maintaining charge is brought.

The issue

33. It appears that, unobserved by any of the participants at the trial, s 229B of the Criminal Code had been amended, with effect from 1 May 2003.  As a result of that amendment, the offence of maintaining an unlawful sexual relationship with a child could be established in a case of "a relationship that involves more than one sexual act over any period".^[3]  The learned trial judge's summing-up was appropriate to a charge of maintaining an unlawful sexual relationship under s 229B before its amendment.  Before that amendment it was an essential element of a charge of maintaining an unlawful sexual relationship that three sexual offences should have been committed within the relevant period.  It was also necessary that the jury be satisfied beyond reasonable doubt of the occurrence of the same three sexual offences.^[4] 

34. The learned trial judge's summing-up could be characterised as more favourable to the appellant than it should have been, bearing in mind that one or more sexual acts were charged against the appellant after 1 May 2003. However that may be, the issue which arises upon the appellant's submissions is whether the learned trial judge's directions to the jury in relation to the use which the jury might make of the non-specific evidence of uncharged acts were sufficient to ensure that the appellant was given a fair trial according to law.

35. In this regard, the jury might permissibly regard the evidence of uncharged acts as tending to show:

1. the sexual nature of the relationship between the appellant and the complainant which was being maintained; and

2. the actual maintenance of that relationship over the relevant period.

36. It was not, however, permissible for the jury to have regard to this evidence as indicating that, because the appellant was disposed to sexual misconduct towards the complainant, he committed the offences of which he was charged including the specific sexual offences of which he was convicted, one or more of which would have been an element of the maintenance charge.

37. The crucial question for present purposes is whether it was necessary for the jury to be given directions which clearly circumscribed the permissible use which might be made of this evidence. In Gipp v The Queen,^[5] Callinan J said:^[6]

"With respect to the direction by the trial judge here regarding the so-called 'background facts' (the evidence of prolonged abuse), the respondent argues, that although it was admittedly defective, it was cured by a direction in these terms:

'[y]ou must be entirely satisfied of the honesty and reliability of the complainant before you act on that evidence alone.'

I do not think this was adequate. The nature and significance of the evidence and the use to which it might be put were never explained to the jury. I think they should have been. Presumably the evidence was tendered as evidence of propensity. It may have had relevance on other bases, for example, as explaining an absence of earlier complaint to the extent that there was any issue in that regard. However it does not seem to have been put in either of these ways at the trial.

The need for care in receiving and explaining the significance of propensity evidence was emphasized by McHugh J in BRS v The Queen ((1997) 191 CLR 275 at 305):

'It is true, as I pointed out in Pfennig v The Queen ((1995) 182 CLR 461 at 523) that there are cases where the interests of justice require that evidence should be admitted even though it reveals that the accused has a criminal or reprehensible propensity. It is also true that in some cases evidence may be admitted even though the sole basis for its admission is that it reveals a criminal or reprehensible propensity on the part of the accused which the Crown will rely on to prove the guilt of the accused (Pfennig v The Queen (1995) 182 CLR 461 at 526 - 527, per McHugh J). Before evidence revealing such a propensity is admitted, however, the judge, according to numerous decisions of this Court (See, eg Perry v The Queen (1982) 150 CLR 580 at 604 per Wilson J; at 609, per Brennan J; Sutton v The Queen (1984) 152 CLR 528 at 547, per Brennan J; at 560, per Deane J; at 564, per Dawson J; Hoch v The Queen (1988) 165 CLR 292 at 300, per Brennan and Dawson JJ; Harriman v The Queen (1989) 167 CLR 590 at 598, per Dawson J; at 633, per McHugh J; Thompson v The Queen (1989) 169 CLR 1 at 16, per Mason CJ and Dawson J; B v The Queen (1992) 175 CLR 599 at 608, per Brennan J; at 618 per Dawson and Gaudron JJ), must be satisfied that the probative value of the evidence outweighs its prejudicial value.

If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.

In the present case, the trial judge was not asked to rule on the admissibility of W's evidence even though it disclosed criminal or reprehensible conduct on the part of the appellant. This was because it was conceded that it was relevant to rebut evidence that the appellant was a person of good character (The fact that the trial judge was not asked to rule on it also underlines the point that [McHugh J] made in Pfennig ((1995) 182 CLR 461 at 530) that not all evidence revealing criminal or reprehensible propensity must pass the no rational explanation consistent with innocent test to be admissible.). Some of it was also admissible, as I have said, because it corroborated the evidence of the complainant. Nevertheless, because the evidence of W did disclose criminal or reprehensible conduct on the part of the appellant, absent some countervailing circumstance of sufficient cogency, the trial judge was bound to direct the jurors as to how they could use the evidence of W."

Kirby J in the same case made these observations (BRS (1997) 191 CLR 275 at 330 - 331):

'It is important to take into account the statutory authorisation for briefer directions to juries of which Judge Court availed himself in this case. It is also necessary to remind oneself that a judge's direction to a jury must be considered in the context of the entire trial and in the light of the issues litigated and the submissions made (R v Tripodina & Morabito (1988) 35 A Crim R 183 at 191 - 192, per Yeldham J; R v Lawrence (1996) 86 A Crim R 412 at 424 - 425 per Callaway JA). This Court should exercise restraint before adding to the catalogue of warnings required of judges conducting criminal trials. If overlooked, or considered unnecessary in a particular trial, they may simply give rise to unmeritorious appeals. But, in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice (Pemble v The Queen (1971) 124 CLR 107 at 116 - 118, per Barwick CJ). The risk must be a real, and not a fanciful one to attract the intervention of an appellate court (R v Johnson (unreported; Court of Appeal (Vict); 27 February 1997) at 17, per Callaway JA). It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. If directions on the jury's legal duties are incorrect or seriously inadequate a new trial will ordinarily be ordered unless the appellate court can affirmatively conclude that the error or omission was in favour of the appellant and that no jury could have failed to convict had they been properly instructed (Pfennig v The Queen (1995) 182 CLR 461 at 542, per McHugh J; R v Zorad (1990) 19 NSWLR 91 at 108 - 109, per Hunt, Enderby and Sharpe JJ; cf Odgers 'Case and Comment - Martin', Criminal Law Journal, vol 15 (1991) 57, at 59). This was the conclusion which the Court of Criminal Appeal reached. With respect, I disagree.'

The dangers of admitting evidence of criminal conduct not the subject of specific charges are obvious. I am concerned also about the danger of admitting so called 'background' evidence. Its reception, and the need to explain its purpose and utility, have the tendency to introduce into a trial, particularly a criminal trial, undesirable complications, and the notion that there may be various lesser grades of evidence calling for different standards of satisfaction in the minds of the jurors."

38. It must be acknowledged that, in Gipp v The Queen, Callinan J was one of a majority of three Justices who gave somewhat different reasons for their conclusion that the convictions in question should be quashed.  Further, as Mr Martin SC who appeared for the respondent before this Court observed, Gipp v The Queen was not a case which involved a maintaining charge.  Nevertheless, and contrary to the respondent's submission in this case, there are strong dicta in the judgments of members of the High Court in KRM v The Queen^[7] (a case which did involve a maintaining charge) which tend to support an affirmative answer to the crucial question.  In KRM v The Queen, Kirby J said:^[8]

"The specific dangers for the fair trial of an accused, presented by the relationship offence, include the additional risk that, without clear directions, the jury may confuse the evidence relevant to any particular charges with that relevant to the relationship offence; that they may impermissibly use evidence of uncharged acts tendered to support the relationship offence (cf R v Pearce [1999] 3 VR 287 at 296 - 297); or that they may reason that, because the accused is guilty of one or more of the specified offences, that therefore he or she is guilty of the relationship offence or from such proof might reason that he or she is the kind of person who would conduct the relationship the subject of the offence and therefore did so as charged."

39. In the same case, Hayne J said:^[9]

"As McHugh J points out in his reasons, the circumstances in which propensity evidence may be adduced are limited, and the use to which a jury may properly put propensity evidence is also limited. If evidence is led of misconduct by an accused which does not form the subject of a charge being tried, a warning against the danger of propensity reasoning will ordinarily be required. By contrast, the fact that there are multiple counts included in the one presentment does not necessarily give rise to a requirement that a propensity direction be given. Generally, the separate consideration direction is sufficient warning against misusing evidence of other charged acts.

     Evidence of uncharged acts, in cases about sexual offences, does present some particular difficulties. Often enough, if evidence of uncharged acts were not admitted, each of the several transactions constituting the charged acts could only be presented as an unreal and not very intelligible event (cf O'Leary v The King (1946) 73 CLR 566 at 577, per Dixon J). In particular, knowing that a complainant alleged that a particular act occurred as one in an otherwise undifferentiated course of offending by an accused may throw an altogether different light upon what otherwise may seem to be an inexplicable course of behaviour by the complainant in submitting, without protest, to what is alleged to have occurred. I therefore agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning."

40. It will be noted that Hayne J suggests that, in such a case, a warning against the dangers of propensity reasoning "will ordinarily be required" where evidence of uncharged acts is led. There was nothing in the circumstances of the present case which could be said to have taken the present case out of the "ordinary" run of cases in which a warning against propensity reasoning was required to ensure that the jury made use of the evidence of uncharged acts in the limited way in which it might lawfully be used.

41. As I have said, the crucial issue is not whether the evidence of the uncharged acts was admissible - it plainly was for the reasons I have mentioned. The issue is whether the jury appreciated the limitations on the legitimate use of that evidence. It is to this issue that the observations of Callinan, Kirby and Hayne JJ, to which I have referred, are directed. While judicial interference in the fact finding function of the jury should be limited to directions necessary to ensure a fair trial according to law, in the present state of the law in Australia, considerations of fairness and rationality require that the potential prejudice to an accused of highly prejudicial but non-specific evidence of uncharged criminal acts be addressed by directions of the kind suggested by their Honours.

42. It must be reiterated that the propensity warning is necessary to guard against the danger that generalised evidence of misconduct might be used improperly by a jury to reason that because an accused has a propensity to criminal misconduct of the type in question he is, therefore, likely to be guilty of the particular misconduct charged against him: "to conclude the particular from the general".^[10]  The warning will not be necessary where the sole purpose for which the evidence of uncharged offences is adduced is to show that a sexual relationship was maintained between the accused and the complainant because that will inevitably involve showing that the accused has "a predilection on the part of the accused to commit indecent acts on his victim".^[11]

43. In this case, the direction set out at paragraph [31] above may well have been taken as an invitation to reason "from the general to the particular": that because of the appellant's predilection manifest in the misconduct disclosed by the uncharged acts, he was likely to be guilty of the specific charged acts of indecent treatment and unlawful carnal knowledge. As Fitzgerald P said in R v Kemp:^[12]

"… there are obvious problems associated with evidence of the relationship between a complainant and an accused which alleges the commission of other offences by the accused and hence, because of his criminal conduct or character, his propensity to offend, leading in turn to an inference that he committed the offence or offences with which he is charged. As a matter of principle, it is difficult to perceive why the admissibility of such evidence should not be subject to the test for propensity evidence established in Hoch v R (1988) 165 CLR 292 and Pfennig v R (1995) 182 CLR 461; however, that need not be decided in this case, which is primarily, at least, concerned with the adequacy of the trial judge's summing-up.

     In my opinion, it was incumbent on the trial judge to ensure that the jury fully understood that any process of propensity reasoning was totally wrong.

     Further, the trial judge was required to direct the jury in clear, unequivocal terms that the complainant's generalised evidence could not be used by them in their evaluation of her specific allegations against the appellant except that, if they did not believe, or had a doubt about the credibility or reliability of, her generalised evidence, that was a matter to be brought to account in favour of the appellant in their consideration of the complainant's specific allegations.

     It was also necessary for the jury to be told that disbelief or doubt concerning all or any of her specific allegations was a matter to be considered, in favour of the appellant, when evaluating the complainant's generalised evidence."

44. In the present case, the learned trial judge's summing-up fell distinctly short of these requirements.

45. Useful guidance is provided in the Queensland Supreme and District Courts Benchbook which, if adapted to the circumstances of this case, would have obviated the present problem. The relevant passage is in the following terms:

"You should have regard to the evidence of the incidents not the subject of charges only if you find it reliable.  If you accept it, you must not use it to conclude that the defendant is someone who has a tendency to commit the type of offence with which he is charged, so it would be quite wrong for you to reason you are satisfied he did those acts on other occasions, therefore it is likely that he committed a charged offence or offences."

46. The guideline direction also contemplates that the specific limited purpose or purposes for which the evidence comes before the jury should be identified to the jury as a precursor to this direction, and that the jury be warned that they may use the evidence only within these limitations. This is not to say that the guidelines in the Benchbook must be followed slavishly. Indeed, they would probably have required some "customising" in the present case.

Conclusions and orders

47. The extract from the learned trial judge's directions to the jury set out at [31] above is not, on any view, adequate to ensure that the appellant was protected against impermissible use of the evidence in question. The jury may well have been left with the impression that they could rely upon the evidence of uncharged acts to resolve in favour of the Crown doubts which the jury may have entertained in relation to specific charged acts (other than the maintaining charge), one or more of which was also an essential element of the maintaining charge.

48. In these circumstances, the appellant's submission must be upheld. I would allow the appeal against the convictions and order that the convictions be quashed and a new trial ordered.