SUPREME COURT OF QUEENSLAND

1. McMURDO P: I agree with Muir JA that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused. 

The appeal against conviction

2. I will not repeat the facts, issues and contentious portions of the learned primary judge's directions to the jury set out by Muir JA.

3. The complainant gave evidence about sexual acts committed by the appellant upon her which were not the subject of specific charges. This evidence was admitted without objection. It was led by the prosecution on two bases. The first was that these acts were part of the charged offence of maintaining a sexual relationship with the complainant under s 229B Criminal Code 1899 (Qld).  In this respect, see especially s 229B(4).  The second basis for the admission of this evidence, as the prosecutor said in her closing jury address, was to show that the complainant's evidence of each of the charged acts (counts 2 to 6 inclusive) was "not inherently improbable … when it's her evidence that these [type of] things happened very frequently, and it was the nature of the relationship that existed between them."

4. The following legal principles relevant to the present appeal can be discerned from the recent High Court decision, HML v The Queen; SB v The Queen; OAE v The Queen.^[1]  Evidence of sexual acts between a complainant and an accused person not the subject of specific charges is admissible on the second basis relied on by the prosecution where it satisfies the test in Pfennig v The Queen,^[2] that is, where there is no reasonable view of that evidence consistent with the accused person's innocence.^[3]  Such evidence will usually satisfy that test because there will rarely be a reasonable view of it other than that it supports an inference that the accused person is guilty of the offence charged.^[4]  The jury should be told that:

"… if, on all the evidence, they are persuaded beyond reasonable doubt that some or all of the other acts did occur, that conclusion may help them in deciding whether the charge under consideration is established. It may help them because showing that the accused had acted in that sexual way towards the complainant on one or more other occasions may show that the accused had demonstrated that he had a sexual interest in the complainant and had been willing to give effect to that interest by doing those other acts. If persuaded of those facts, the jury may think that it is more likely that the accused did what is alleged in the charge under consideration."^[5]

All these issues are matters for the jury and even if the jury concludes the accused person committed the other sexual acts, it is not inevitable that he committed the charged offence or offences.  It is always a matter for the jury to decide on the evidence whether they are persuaded beyond reasonable doubt that a charge they are considering has been proved.^[6]

The primary judge's directions to the jury

5. The judge's directions to the jury included the following:

"Firstly, it is the law of Queensland that every person is presumed to be innocent until proved guilty. There is no obligation on an accused person to prove that he is not guilty. The prosecution brings the charges, the prosecution has the obligation to prove them.

Secondly, I direct you that the standard of proof which the prosecution much reach is proof beyond any reasonable doubt. I'm sure you've all heard that term before this trial. The phrase "beyond reasonable doubt" is not a term of art, it has no special legal definition.

You're expected to approach your task as jurors as reasonable people. Emphasis on the word "reasonable". In other words people of reason and commonsense. And, therefore, if, as reasonable people, you have a doubt about [the appellant's] guilt on any one or more of these charges and you think your doubt is a reasonable one then you have a reasonable doubt.

So, it follows from what I've said that if after you've given careful consideration to the whole of the evidence, if you are satisfied beyond reasonable doubt that [the appellant] is guilty of any one or more of the offences charged it is your duty to find him guilty and to return a verdict of guilty in relation to that charge or those charges. On the other hand, if you're not satisfied beyond reasonable doubt that he is guilty it is equally your duty to find him not guilty."

6. The judge told the jury that they must consider the evidence in respect of each of the counts charged and depending on their view of the evidence, decide whether the appellant was guilty or not guilty of each of those charges; they may find him guilty on all counts, not guilty on all counts or guilty on some and not others.

7. The judge reminded the jury that the fact that the appellant had not given evidence did not reverse the onus of proof which remained with the prosecution.

8. In discussing the elements of the charged offences, his Honour sometimes told the jury they must be "satisfied beyond reasonable doubt" of the element. At other times in his directions he used the expression "satisfied" without any reference to the standard of satisfaction required.

9. The judge explained the elements of the offence under s 229B of maintaining a sexual relationship with a child under 16 years (count 1). His Honour said that the complainant's evidence about the appellant's sexual conduct towards her during the period charged in count 1 but not the subject of counts 2 to 6 was, if accepted, relevant to the element of whether there was an ongoing sexual relationship between them within the charged period.

10. The judge referred to the delay in making any complaint about the appellant's conduct; this may have made it more difficult for the appellant to answer the allegations, impairing the fairness of the trial. The judge warned the jury that it would be dangerous to convict on the complainant's evidence alone unless after scrutinising it carefully they were satisfied beyond reasonable doubt of its truth and accuracy. His Honour pointed out to the jury the evidence capable of supporting the complainant's evidence. The complainant's mother gave evidence of conversations with the appellant which, if accepted, were capable of amounting to an implied admission that he had improperly dealt sexually with the complainant. Before acting on that evidence, the jury would have to be satisfied that the complainant's mother was reliable and accurate about those conversations and that the only reasonable view of them was that the appellant was admitting that he had behaved in a sexual way towards the complainant. If so, the jury could treat that evidence as supporting the complainant's evidence about the appellant's conduct towards her; that it:

"… makes it more probable than not that [the complainant is] telling the truth about the individual occasions and the overall relationship.

That, of course, is not enough to find him guilty. The fact that you are satisfied that the conversations took place, the fact that you are satisfied it amounted to an admission or a concession that he'd been behaving sexually towards [the complainant] does not necessarily mean you find him guilty of the five offences.

You may never find him guilty unless you're satisfied beyond reasonable doubt that he is guilty. But, as I've said, if you're satisfied he said those things to [his wife], if you're satisfied that in doing so he was conceding or admitting that he had been having a sexual relationship or behaving sexually towards [the complainant] then you may take the view that that tends to support her truthfulness and support her evidence as to what she says he did on those five individual occasions and the overall relationship."

11. The judge explained that the complainant's evidence was also able to be supported by the conversation she had with the appellant in the first of the recorded telephone calls. His Honour said that the jury could only use that evidence as supporting the complainant's evidence if satisfied that the only reasonable view of it was that the appellant was admitting that he had sexually molested the complainant when she was younger. If so, the jury could conclude that the evidence supported the complainant's evidence about the appellant's sexual conduct towards her. His Honour added:

"But once again, of course, it is not sufficient to find him guilty that you'd be satisfied that she's more likely telling the truth. In order to find him guilty you must always be satisfied beyond reasonable doubt that he is guilty of the specific offence charged."

12. His Honour then commenced his directions to the jury about the complainant's evidence of the appellant's sexual conduct towards her that was not the subject of counts 2 to 6 in these terms. It was up to the jury to decide whether they accepted the complainant's evidence of these matters. If they did not accept this evidence, the jury could use this in considering whether or not she was truthful about counts 2 to 6. This was because if someone lies about one matter that is closely related to another matter, a jury would be disinclined to believe the person about the second matter. His Honour then gave the directions set out by Muir JA at para [35].

13. Shortly after the jury initially retired to consider their verdict, the judge gave the following redirections:

"I told you that if you disbelieve [the complainant] about that uncharged conduct then that may be relevant and you can use it in considering whether or not you believe her evidence in relation to the five specific charges.

It also follows that if you disbelieve her in relation to any one or more of the five specific charges, then that may detract from her credibility or believability in relation to other of the individual charges."

14. His Honour's redirection then continued in the terms set out by Muir JA at para [36].

Discussion

15. The jury directions given by the learned primary judge as to the use to be made of the complainant's evidence of the appellant's sexual conduct other than in counts 2 to 6 was not a perfect embodiment of the principles discerned from HML.^[7]  That is not surprising because these directions were given in January 2008, four months before HML was decided.  The primary judge did not state in terms that the jury must be "satisfied beyond reasonable doubt" that the sexual conduct not charged in counts 2 to 6 occurred.  But in the full context set out above, his Honour's use of "satisfied" in the criticised direction could only have conveyed to the jury that they must be  "satisfied beyond reasonable doubt" of the truth of her evidence of the uncharged sexual conduct before acting on it.  That is because, during the summing-up and redirection, his Honour interchangeably used the expressions "satisfied beyond reasonable doubt" (41 times) and "satisfied" (29 times).  Similarly, the jury must have understood from the criticised direction that before using that evidence they must be "satisfied beyond reasonable doubt" that the only reasonable inference to be drawn from that evidence was that the appellant had a sexual attraction to the complainant and that he was willing to put it into effect by behaving towards her in a sexual way. 

16. His Honour explained to the jury that the next step in the relevant reasoning process was that if they drew that inference then they "may be satisfied that it makes it more probable than not that [the complainant] is telling the truth about counts 2, 3, 4, 5 and 6, that it tends to support her and tends to make her more likely to be truthful when she described those five incidents." It is regrettable that the judge used the expression "more probable than not" instead of "likely" as suggested in HML.  The use of the words "more probable than not" risked confusing the jury about the standard of proof applicable in a criminal trial.  The ordinary meaning of "probable" is "likely".  In the full context of the judge's summing-up set out earlier in these reasons, despite that unadvised use of the phrase "more probable than not", the jury could have been in no doubt that the standard of proof applicable in this trial was beyond reasonable doubt. 

17. In essence, his Honour's direction criticised by the appellant complied with the requirements of HML.^[8]  Other aspects of the direction were favourable to the appellant.  The judge told them that if they did not believe the complainant's evidence about the sexual conduct not the subject of counts 2 to 6, then that may affect her credibility about counts 2 to 6.^[9]  Importantly, the last points made in the judge's redirection before the jury ultimately retired to consider its verdict were balanced and ensured the jury focussed on the essential issues in the trial.  First, the judge warned against misusing the propensity evidence: that even if satisfied on the complainant's evidence that the appellant was having a sexual relationship with her, the jury must not reason that he was therefore guilty of counts 2 to 6.  Second, the judge directed the jury that even if they were satisfied that the only reasonable view of the complainant's evidence of the appellant's sexual conduct not the subject of counts 2 to 6 was that it was more likely the appellant did what was charged in counts 2 to 6, they may only find him "guilty of those offences if … satisfied beyond reasonable doubt not just that she's telling the truth about the relationship, but telling the truth in her evidence about each of those individual offences." 

18. It must also be kept in mind that the judge on many earlier occasions during the summing-up also made plain to the jury that the essential issue in respect of each of counts 2 to 6 was whether, having regard to all the evidence, they were persuaded beyond reasonable doubt of the appellant's guilt. His Honour made clear that different verdicts could be returned on different counts. Significantly, the jury did exactly that. They acquitted on counts 3 and 6 where there was independent evidence throwing some doubt on the time when those counts occurred. The complainant gave evidence that count 3 occurred in the appellant's white Toyota Lexcen. Other evidence established that the appellant did not own such a vehicle at the time when count 3 was said to have occurred. The complainant gave evidence that count 6 occurred when she was wearing her school uniform (inferentially on a school day) after she and the appellant had been to dinner at the home of family friends. One of these family friends gave evidence in the defence case that during the time-frame in which count 6 was said to have occurred, the appellant and the complainant did not come to their home for dinner on any day when their fish and chip shop was operating, namely, Monday to Saturday. The complainant's evidence on counts 2, 4 and 5 was not similarly undermined and it is not now submitted that the inconsistency of verdicts amount to a miscarriage of justice. The acquittals on counts 3 and 6 suggest that the jury did as the judge directed and looked at the evidence on each specific count in determining whether the appellant was guilty on each count.

19. The jury directions the subject of this appeal in my view sufficiently complied with the requirements of HML and did not amount to an error of law.  If I am wrong in that view, I am satisfied that no substantial miscarriage of justice has actually occurred in the guilty verdicts returned by the jury.^[10]  The case against the appellant was strong.  The complainant's evidence on these counts was supported by other compelling independent evidence.  The evidence properly admitted at trial proved beyond reasonable doubt the appellant's guilt on counts 1, 2, 4 and 5: Weiss v The Queen^[11] and Glennon v The Queen.^[12] 

Sentence

20. The judge generally accepted the complainant's evidence as to the frequency and nature of the abuse outlined by the complainant in so far as this was consistent with the jury verdicts. The applicant's offending encompassed in the offence of maintaining (count 1) occurred on at least a weekly basis over two and a quarter years when the complainant was a vulnerable teenager, 13 to 15 years old. The offences constituted a gross breach of trust. Their impact on the complainant has been significant and ongoing. The appellant has shown no remorse. In the light of these circumstances, the cases discussed by Muir JA demonstrate that the sentence of six years imprisonment was not manifestly excessive.

Orders:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

21. MUIR JA: The appellant was tried in the District Court in Cairns on the following counts: maintaining a sexual relationship with a child under the age of 16 with a circumstance of aggravation (Count 1); four counts of unlawfully and indecently dealing with a child under 16 years who, to the appellant’s knowledge, was his lineal descendant (Counts 2, 3, 4 and 6); and one count of attempting to have carnal knowledge (Count 5). 

22. An element of each offence was that the complainant was the daughter of the appellant. On 23 January 2008, the appellant was convicted of counts 1, 2, 4 and 5. He was sentenced to six years imprisonment for count 1 and a parole eligibility date was fixed at 23 January 2011. A two year term of imprisonment was imposed for each of counts 2 and 4 and a three year term was imposed for count 5. All terms were ordered to be served concurrently.

23. The complainant was born in early 1982 and was about 13 years of age when the appellant’s offending commenced. She was 25 years of age at the time of the trial. The appellant and the complainant’s mother separated in 1992 and thereafter the complainant lived with her sisters and the appellant. On alternate weekends the parents cared for all three girls.

24. The complainant’s evidence in respect of counts 2 to 6 may be summarised as follows.

Count 2

25. One evening in 1995 after the complainant turned 13, the appellant entered the bathroom whilst the complainant was showering and began to “wash her all over”. She put a towel around herself, and at the appellant’s request went into the appellant’s bedroom and lay down on his bed. The appellant entered the room and undressed. The complainant observed that he had an erection. He undid her towel, lay beside her, rubbed her vagina, put his fingers in it, put her hand on his penis and made her masturbate him. He then knelt down and licked the complainant’s vagina and masturbated until ejaculation. This was not the first time on which such conduct had occurred.

Count 3

26. Travelling back to their home from a sporting event, the appellant’s car overheated. Whilst it was parked beside the road the appellant reached over to the complainant, put his hands under her shorts and underwear and attempted to rub her vaginal area. She wriggled about in an attempt to prevent him but did not succeed.

Count 4

27. At a time when the complainant was 14 he came into her bedroom, put his hand under the doona, fondled her vagina and put his fingers inside her for five to 10 minutes.

Count 5

28. At a time when the complainant was 14 or 15, the appellant entered the bathroom when the complainant was showering and started to wash her. He took her to the bedroom, had her lie on the bed and undress and lay down beside her. He fondled her vaginal area, penetrated her digitally, masturbated himself and got her to masturbate him. He again licked her vaginal area and attempted to penetrate her with his penis whilst lying on top of her. She prevented this by protesting orally and wriggling away from him. The appellant then lay down and masturbated until ejaculation.

Count 6

29. The appellant entered a bedroom to find a boy with his hand up the complainant’s skirt. She was then 15. The appellant told the complainant that they must leave. They drove to another residence where they had dinner. On the way, the appellant told the complainant that no-one, apart from the appellant, had the right to touch the complainant the way the boy had. When they got home that evening, the appellant told the complainant to undress, which she did. He then manipulated her vaginal area, digitally penetrated her, masturbated and had her masturbate him. He then masturbated to ejaculation.

Uncharged conduct

30. On average, about once or twice a week, the appellant would take the complainant into his bedroom, fondle her vaginal area and have her masturbate him. The conduct included digital penetration and, as the complainant matured and developed breasts, the appellant would fondle them. The conduct commenced when the complainant was aged about 13 and stopped when she was 15.

Admissions

31. In a recorded telephone conversation with the appellant on 17 February 2004 the following exchange occurred:

"COMPLAINANT:  You know how you said to me when I was in Tassie that I can just ring you up and talk to you about what happened in the past?

APPELLANT:  Yeah.

COMPLAINANT:  Can we talk about it please?

APPELLANT:  Yeah.

COMPLAINANT:  I don’t understand it.

APPELLANT:  What, love?

COMPLAINANT:  Oh what you did and when you [indistinct] you know did touch me and all that sort of thing.  I don’t understand why . . .

APPELLANT:  I’m having problems with it as well.  You’re not the only one.  I got sort of – I went through a phase in my life and I didn’t understand what I was doing and um I’m having a lot of problems myself with it as well so no matter what I did and what I shouldn’t have done and um I do, yeah.

. . .

COMPLAINANT:  Yeah, it’s just there’re like visions in my head lately and there like just stuck there . . . and this just the visions and that of you touching me

. . .

APPELLANT:  No, I don’t - . . .

COMPLAINANT: . . . It’s just every time I go to get into bed, I lay down and you’re on top of me or you know, just touching me, and I just can’t get them out of my head.

APPELLANT:   I don’t know what you’re going to do.  I’m here.  Do you want to come around? "

32. The complainant’s mother gave evidence of leaving a note on the appellant’s door stating, to the effect, that she knew what the appellant had done to the complainant and that the complainant wasn’t going to live with the appellant again. She said that the appellant telephoned her later that evening and in the course of the conversation she said to the appellant words to the effect, “. . . how could he hurt his daughter the way he had, that he was sick, that he needed help . . .” According to the witness, the appellant said, “Yes, he knew what he did was wrong, that he was sick, and . . . he would get some help . . . he said he was sorry and he never wanted to hurt [the complainant] and I’d never know how sorry he was.”

33. The complainant’s mother said that a couple of years later, after she had been given more detail by the complainant of the appellant’s abuse of her, she had another conversation with the appellant. Her evidence in this regard was that she went around to the appellant’s house “. . . and I just asked him again, why did he do it; why could he do such disgusting things – you know – she was our daughter; how could he do it. And he just – he was just laying back saying ‘Oh, I feel guilty. I’ll feel guilty for the rest of my life, but she won’t do anything about it. I’m sorry. I’m sorry I did it’, or something similar. And I – I just hit the roof and said, ‘I don’t think sorry is good enough’, and walked out.”

The ground of appeal against conviction

34. The appellant abandoned the ground of appeal in the notice of appeal and obtained leave to add the ground that, "a miscarriage of justice was caused by the erroneous direction given by the learned trial judge with respect to the evidence of uncharged acts."

Relevant passages from the summing up

35. The passages from the trial judge’s summing-up on which the appellant’s argument are based are as follows:

"On the other hand, if you do believe [the complainant] about that uncharged conduct, you may use it in a limited way and I'll direct you as to how you may use it in that limited way. Firstly, as I've said, you can use it in relation to that continuity question in respect to count 1, the maintaining offence, and I won't go through that again. But you may use it also in relation to counts 2, 3, 4, 5 and 6 in a limited way.

If you are satisfied that she is telling the truth about that uncharged conduct, then you may take the view that you can be satisfied that [the accused] had a sexual attraction to his daughter and that he was willing to put it into effect by behaving towards her in a sexual way.

. . .

And you may only use it if you are satisfied that it proves that fact, that that is the only reasonable inference you can draw, and if you draw that inference then you may be satisfied that it makes it more probable than not that [the complainant] is telling the truth about counts 2, 3, 4, 5 and 6, that it tends to support her and tends to make her more likely to be truthful when she describes those five incidents.

So that is the only way you can use that evidence of uncharged conduct. If you are satisfied that the only reasonable conclusion to be drawn from that uncharged conduct, if it is true, is that [the complainant] is probably teling the truth about the five particular incidents covered by counts 2, 3, 4, 5 and 6. Unless you are satisfied that you can use it that way then, even if you believe it, you put it aside." (emphasis added)

36. The trial judge relevantly redirected the jury as follows:

"Also in relation to that uncharged conduct I directed you that you could use it, if you accept her evidence in that regard, you could use it if you were satisfied that the only reasonable view of it is that she's more probably than not telling the truth about the five individual charges, and you may only use it if you are satisfied that that is the only reasonable inference to be drawn.

It must follow therefore, ladies and gentlemen, that you cannot say to yourselves, for instance, "Well, we're satisfied he's having the sexual relationship with [the complainant]. We'll find him guilty of those five charges." You can't use the evidence that way.

You may use it if you are satisfied that the only reasonable view of her evidence, if you accept it, is that she's probably telling the truth about the five individual offences – counts 2 to 6, but you may only find [the accused] guilty of those offences if you are satisfied beyond reasonable doubt not just that she's telling the truth about the relationship, but telling the truth in her evidence about each of those individual offences." (emphasis added)

The appellant’s argument in respect of the alleged misdirection

37. Counsel for the appellant submitted that by the direction, the trial judge invited the jury to reason that because of the appellant’s misconduct disclosed by the uncharged acts he was more likely to be guilty of the specific charged acts of indecent dealing and attempted incest.

38. It is contended that the trial judge summed-up on the basis that the uncharged acts were admitted and relied on by the prosecution to prove that the appellant had a sexual interest in his daughter. That was not the prosecution case, however. Such evidence was admitted and relied on only in respect of the offence of maintaining a sexual relationship under s 229B(1) of the Criminal Code 1899 (Qld).  In those circumstances it was impermissible for the trial judge to invite the jury to use the evidence as a step towards proving the appellant’s guilt in respect of the other charges.

39. Had the prosecution led evidence of uncharged acts as proof of sexual attraction of the appellant for the complainant, a direction as to the limited use to which such evidence could be put was required.^[13]

The respondent’s argument in respect of the alleged misdirection

40. Counsel for the respondent conceded that the trial judge’s directions were inconsistent with the principles expressed in recent authority such as R v WO,^[14] B v The Queen,^[15] and KRM v The Queen.^[16]  It is accepted that, far from directing the jury that the evidence of the uncharged acts was only relevant to an understanding of the true nature of the relationship, the trial judge’s directions effectively permitted the jury to reason that, if satisfied that the appellant did the uncharged acts they could conclude that it was more likely that he committed the acts for which he was indicted.  It is submitted, however, that the directions given by the trial judge conform with the principles stated in HML by Hayne J with whose reasons Gummow and Kirby JJ relevantly agreed.  It is further submitted that in this case the combination of verdicts illustrates that the jury was able to determine the verdicts, perhaps, without relying on the similar fact evidence.

Consideration of HML v The Queen

41. In HML Hayne J, after referring to evidence of other sexual acts directed at the complainant by the accused, which were not the acts the subject of the charges being tried said^[17]:

"… If accepted, that evidence would show that the accused had a sexual interest in the complainant which he had demonstrated by those other acts. Proving that the accused not only had that sexual interest, but had given expression to that interest by those acts, made it more probable that he had committed the charged acts. Proof of the other acts would thus constitute an element in the circumstantial proof of the offences charged."

42. His Honour then explained^[18]:

"[106]  Admissibility of evidence of other sexual acts directed at the complainant by the accused, which are not acts the subject of charges being tried, is to be determined by applying the test stated in Pfennig v The Queen. It is not to be determined by asking whether the evidence in question will put evidence about the charges being tried "in context", or by asking whether it describes or proves the "relationship" between complainant and accused.

[107] Evidence of other sexual conduct which would constitute an offence by the accused against the complainant will usually satisfy the test stated in Pfennig. It will usually satisfy that test because, in the context of the prosecution case, there will usually be no reasonable view of the evidence, if it is accepted, which would be consistent with innocence. That is, there will usually be no reasonable view of the evidence of other sexual conduct which would constitute an offence by the accused against the complainant other than as supporting an inference that the accused is guilty of the offence charged.

[108]  In Pfennig, the relevant question is stated as "whether there is a rational view of the evidence that is consistent with the innocence of the accused" (emphasis added). Elsewhere, the relevant question has been put negatively - whether there is a rational view of the evidence of other conduct that is inconsistent with the guilt of the accused. The test, no matter whether it is stated positively (consistent with innocence) or negatively (inconsistent with guilt), does not require that the evidence of other conduct, without more, prove guilt of the charged offence. Rather, as the reference made in Pfennig to the remarks of Dawson J in Sutton v The Queen demonstrates, the inquiry is whether the evidence in question supports an inference that the accused is guilty of the offence charged, and is open to no other, innocent, explanation.

[109]  In cases of the present kind, evidence of other sexual conduct which would constitute an offence by the accused against the complainant shows that the accused had then demonstrated a sexual interest in the complainant, and had been willing to give effect to that interest by doing those other acts. The strength of the connection between the offences being tried and the other acts will be affected by the temporal proximity of one to the other and the frequency of occurrence of the other acts. Generally speaking, however, there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried." (footnotes deleted) 

43. In the course of discussing considerations applicable to directions to give effect to the above principles, Hayne J said^[19]:

"[132]  Seventh, the directions about how the evidence may be used by the jury will reflect not only what uses the parties have sought to make of it in argument, but also the legal basis for its admission.  The evidence of other acts is admissible if it meets the test in Pfennig. That being so, it will be necessary to tell the jury that if, on all the evidence, they are persuaded beyond reasonable doubt that some or all of the other acts did occur, that conclusion may help them in deciding whether the charge under consideration is established. It may help them because showing that the accused had acted in that sexual way towards the complainant on one or more other occasions may show that the accused had demonstrated that he had a sexual interest in the complainant and had been willing to give effect to that interest by doing those other acts. If persuaded of those facts, the jury may think that it is more likely that the accused did what is alleged in the charge under consideration. " 

44. Hayne J concluded that evidence of uncharged acts was admissible only if capable of "establishing a step towards proof of the prosecution case".  That being so, his Honour’s view was that such evidence required proof beyond a reasonable doubt.^[20]  The view that proof beyond a reasonable doubt was required was shared by Kirby J^[21] and Kiefel J^[22].  Gummow J agreed "with what [was] written by Hayne J respecting matters of general principle" and "with what appears under the heading Pfennig v The Queen".^[23]  The necessity for proof beyond reasonable doubt of the evidence under consideration would appear to fall within the former description.

Consideration of the primary judge’s directions

45. The primary judge’s initial direction was to the following effect. If the jury was satisfied that the complainant was telling the truth about the uncharged acts they could reason from this that the appellant had a sexual attraction to his daughter and was willing to put it into effect by engaging in sexual conduct with her. But the jury could use the evidence of uncharged acts in this way only if the jury concluded that the only reasonable inference they could draw from the evidence was that the appellant had such a sexual attraction and was willing to put it to such effect.

46. If the jury reached this point, it was open to them to conclude, on the balance of probabilities, that the complainant was telling the truth about counts 2, 3, 4, 5, and 6 because, if the complainant is believed about the uncharged acts it is more likely that her evidence about the charged acts is truthful. His Honour then summarised as follows. Unless the jury were satisfied that the only reasonable conclusion to be drawn from the uncharged acts, if the complainant’s evidence was accepted, was that the complainant was probably telling the truth about the facts the subject of counts 2 to 6, the evidence of the uncharged acts, even if believed, could not be used by the jury.

47. The instruction that if the jury inferred the existence of a guilty passion and willingness to put it into effect they could be satisfied, on the balance of probabilities, that the complainant was truthful about counts 2 to 6 had the potential to confuse the jury about the correct standard of proof. It also sanctioned a process of reasoning against which many authorities have warned^[24]:  namely, to argue that because a person has engaged in prior sexual misconduct similar in nature to that charged, it may be concluded that the person was likely to have engaged in the charged conduct.  By this observation I do not mean to suggest that it would have been inappropriate for the primary judge to have directed the jury that if they accepted beyond reasonable doubt that the acts of sexual misconduct which were not the subject of counts 2 to 6 occurred they could consider this evidence as supporting the complainant’s evidence about counts 2 to 6.  HML would sanction such a direction as the test in Pfennig v The Queen^[25]was plainly satisfied.^[26]  It would, in fact, have sanctioned a direction in this case along the lines that if the jury were satisfied beyond reasonable doubt that the acts of sexual misconduct which were not the subject of the charges, or many of them, had occurred as the complainant swore, they may conclude that this behaviour demonstrated that the accused had regularly during the period covered by counts 2 to 6 given physical expression to a sexual interest which he had in the complainant.  If they were satisfied of this, they may reason that it increased the likelihood that the accused did the acts the subject of counts 2 to 6.

48. The direction suffered from the absence of an explanation that before the jury could use such evidence of regular sexual behaviour, they would need to be satisfied beyond reasonable doubt that such behaviour occurred.

49. Also, the evidence of the uncharged acts was but part of the evidence in the case. In determining guilt or innocence, each charge had to be considered separately having regard to the evidence which related specifically to that charge and to the general body of evidence which was relevant to that and other charges. A reminder to the jury to that effect would have been desirable.^[27]

50. In the redirection, the primary judge directed, in effect, that the jury could use the evidence of uncharged acts only if the jury accepted the complainant’s evidence about the uncharged acts and if the jury was satisfied that the only reasonable inference to be drawn from such evidence was that the complainant was probably telling the truth about counts 2 to 6. The primary judge thus introduced an unnecessary standard of proof and risked confusing the jury as to the application of the standard of proof beyond reasonable doubt. He continued also to sanction a reasoning process which focussed on the evidence of the uncharged acts to the exclusion of all other evidence. The direction, however, finished with a warning that the appellant could be found guilty only if the jury was “satisfied beyond reasonable doubt”, not merely that the complainant was “telling the truth about the relationship”, but that she was telling the truth in her evidence about each of counts 2 to 6.

51. What his Honour may have been attempting to convey was that if the jury believed the complainant on the balance of probabilities about the counts on the indictment they may use her evidence about the uncharged acts to reach a state of satisfaction beyond reasonable doubt about those counts. But that is a restrictive and artificial approach to the consideration of evidence and is not the obvious meaning of the words used.

52. What the direction contemplates is that the evidence of uncharged acts may be used to enable the jury to be satisfied that the complainant is probably telling the truth about counts 2 to 6 "if satisfied that that is the only reasonable inference to be drawn."  The jury was not informed as to how they may move from this point to being satisfied beyond reasonable doubt in respect of counts 2 to 6.  And the underlying premise of the direction was flawed.  If the jury accepted the complainant’s evidence about the uncharged acts and drew the inference that the appellant had a sexual attraction to his daughter which he was willing to put into effect, the jury was entitled to reason that this supported the complainant’s evidence in relation to the charges on the indictment.  The extent to which the latter evidence was supported by the former was a matter for the jury to decide by reference to all relevant evidence.  The focus of this part of the summing-up was too narrow as it treated the evidence of uncharged acts as divorced from the other evidence in the case.

53. On the facts under consideration, if the jury accepted the complainant’s evidence about the uncharged acts, one would think it highly likely that the jury would have concluded also that the evidence of the uncharged acts offered strong support for her evidence in respect of the counts on the indictment. After all, the acts the subject of counts 2 to 6 were but particularised instances of the conduct which the complainant swore was engaged in by the appellant at least once a week on average.

54. The redirection, like the original direction, gave rise to a risk of confusion in relation to the standard of proof. It must have been puzzling for the jury to be told that they could use the evidence of the uncharged acts only if they were satisfied that the only reasonable view of that evidence was that the complainant was probably telling the truth about counts 2 to 6 and then to be directed that they had to be satisfied beyond reasonable doubt about the evidence of both the uncharged acts and of the evidence in respect of counts 2 to 6. If satisfied of the evidence specifically relating to counts 2 to 6 beyond reasonable doubt there was no need for the jury to go through the step by step process contemplated by the direction.

55. The directions, undesirably, treat truthfulness of a witness as embodying accuracy as well. They also attempt, impermissibly, to confine the jury’s reasoning to the step by step process discussed above. There is no reminder to the jury that separate consideration must be given to each charge but the primary judge had been at pains to emphasise this necessity earlier in his summing-up and it is unlikely that the jury would have overlooked his careful directions in that regard.

56. The initial direction and the redirection are thus unsatisfactory in a number of respects. The overall effect of the directions though was favourable to the appellant. The directions set an erroneously high threshold for the jury’s ability to make use of the evidence of uncharged acts as support for the evidence in respect of counts 2 to 6. In addition, and critically, at the conclusion of the re-direction, the jury was instructed that they must be satisfied beyond reasonable doubt of the correctness of the evidence about the uncharged acts and also the correctness of the evidence concerning the counts on the indictment. The jury was also told in the redirection that if they were satisfied that the appellant was having a sexual relationship with the complainant they could not conclude from that that the appellant was guilty of counts 2 to 6. Consequently, although the subject direction and redirection were unsatisfactory, they did not have the potential to disadvantage the appellant or to prevent a fair trial according to law.

The use of the uncharged acts as evidence to support the complainant’s evidence in respect of Counts 2 to 6

57. There is no substance in this point. The proof of count 1 depended in part on the jury being satisfied, beyond reasonable doubt, that the appellant was guilty of at least three of counts 2 to 6. The evidence in respect of count 1 on the one hand and counts 2 to 6 on the other was thus necessarily interrelated. The evidence in relation to the uncharged acts was admitted without objection and used by the learned Crown prosecutor as support for the complainant’s evidence in respect of counts 2 to 6 in the course of her address where she said:

"It’s not inherently probable (sic) that the father would have done these things to her, particularly when it’s her evidence that these things happen very frequently and it was the nature of the relationship that existed between them."

58. The primary judge also raised the question of relationship evidence with counsel prior to his summing-up. After the initial direction, defence counsel requested a redirection to the effect that the jury should also have been given a direction along the lines of that recommended in R v Markuleski.^[28]  Defence counsel made no submissions after the redirection and it is reasonable to conclude that he was satisfied with it.  He may well have considered it favourable to his client.  On balance, it was.

Conclusion in respect of the appeal against convictions

59. For the above reasons I would order that the appeal be dismissed.

Application for leave to appeal against sentence

60. The appellant seeks leave to appeal against the six year term of imprisonment on the grounds that it was manifestly excessive. In support of the application, the appellant’s counsel relies on R v GY.^[29]  In that case, the applicant was convicted after a trial on one count of maintaining a sexual relationship with a child under 16 and four counts of indecent treatment of the child.  His application for leave to appeal against the sentence of four years imprisonment was refused.  The relationship commenced when the complainant was aged six and ceased when she was aged 14.  The conduct alleged was the rubbing by the appellant of his penis against the complainant’s vulva sometimes to the stage of ejaculation.  Apart from the four counts of indecent treatment charged, the evidence of other indecent acts was vague.  There appeared to have been no evidence of frequency or regularity.  Although the conduct here was for a much shorter period, it was much more invasive in nature.  The character of the offending was also exacerbated in this case by the relationship between the complainant and the appellant. 

61. Counsel for the appellant also referred to the discussion by Williams J in R v GY of R v C,^[30] R v S^[31] and R v R.^[32]  In R v C a sentence of five years for touching, digital penetration and fellatio of the complainant aged between six and 11 was not disturbed on appeal.  A sentence of six years with a recommendation for parole after two years was reduced to four and a half years with a recommendation of 18 months in R v S.  The offender in that case voluntarily disclosed his offending to police.  It involved touching the complainant’s breasts and genitals, having her rub his penis until ejaculation and rubbing his penis against her body.  The voluntary disclosure was instrumental in securing the decrease in sentence.  In R v R, the applicant was convicted after a trial of maintaining a sexual relationship with his stepdaughter over a three year period.  The offending involved the complainant masturbating the offender and rubbing his penis against her genitals without penetration.  A sentence of four years imprisonment was not disturbed but a recommendation for parole after 15 months was added.  There are obvious points of distinction between the subject offending and the offending in those cases.  Not the least is the intensity and intrusive nature of the sexual acts, fellatio, digital penetration and masturbation.

62. Reference was made by counsel for the respondent to the Queen v Ryan^[33] in which the applicant was convicted after a trial of maintaining a sexual relationship with a child under 12 in his care.  He was also convicted of three offences of aggravated indecent treatment.  The offending took place over a 20 month period when the complainant was aged between nine and 10 and suffering from cerebral palsy.  The conduct involved frequent fondling of breasts, vaginal digital penetration and the procurement of the complainant to masturbate the applicant.  On more than one occasion the applicant had threatened to kill the complainant if she reported conduct.  A sentence of 10 years was reduced to eight years on appeal.  The complainant in Ryan was younger than the complainant in this case and the threats to her by the applicant were factors aggravating the seriousness of his offending.  However, there was no familial relationship between the offender and his victim.

63. It does not appear to me that having regard to the authorities discussed above, that the sentence was manifestly excessive. I would dismiss the application for leave to appeal against sentence.

64. CULLINANE J: I have read the draft reasons of Muir J in this matter and agree with those reasons and the orders he proposes.