R v KAN[2016] QCA 108

SUPREME COURT OF QUEENSLAND

1. [1]
   MARGARET McMURDO P:  The appellant, KAN, was convicted after a three day jury trial of maintaining a sexual relationship with a child under 16 between 30 April 2003 and 1 July 2008 (count 1); rape on a date unknown between 31 December 2002 and 1 July 2004 (count 2); and rape on a date unknown between 12 October 2006 and 1 July 2008 (count 3).  The complainant in each case was the appellant’s daughter.
2. [2]
   He has appealed against his convictions on the following grounds:

“A. A miscarriage of justice was caused by the failure of the learned trial Judge to properly direct the jury in relation to the evidence led in the trial of sexual offences, allegedly committed by the Appellant against the complainant in South Australia and Queensland, such offences not being the subject of the charges on the indictment.

B. A miscarriage of justice occurred due to the failure of the learned trial Judge to properly direct the jury against impermissible propensity reasoning when considering the evidence in relation to the separate counts on the indictment.

C. A miscarriage of justice was caused by the failure of the learned trial Judge to properly direct the jury in relation to the evidence of other discreditable conduct, namely physical beatings allegedly administered to the complainant by the Appellant.

D. A miscarriage of justice occurred due to the failure of the learned trial Judge to properly direct the jury in relation to the evidence of preliminary complaint given by the complainant and by the witnesses [MS] and [MY].

E. A miscarriage of justice occurred due to the failure of the learned trial Judge to direct the jury that they could only use a finding of guilt in relation to count 2 (rape) if they were satisfied beyond reasonable doubt that the rape occurred at [a specified town] and during the period alleged in Count 1 (maintaining a sexual relationship).

F. A miscarriage of justice occurred due to the failure of Defence Counsel to elicit evidence of prior inconsistent statements made by the complainant to police in an audio-visually recorded interview at the Mackay Police Station on 2 May 2008.

G. Fresh evidence not available at trial demonstrates that a miscarriage of justice has occurred.

H. The verdict was unsafe and unsatisfactory.”

3. [3]
   In respect of ground G, he applied for leave to himself give evidence, and to adduce fresh or new evidence from his lawyers at trial, his mother and Ms TC.  Ms TC was cross-examined by the respondent during the appeal hearing.
4. [4]
   The appellant conceded during the appeal hearing that his contention that the verdict was unsafe and unsatisfactory, that is, under s 668E(1) Criminal Code 1899 (Qld) it was unreasonable and against the weight of the evidence (ground H), was unsustainable without this Court also taking into account the further evidence he now wishes to adduce.  That concession was rightly made as s 668E(1) requires this Court to consider only the evidence before the jury in determining whether the verdict was unreasonable: M v The Queen.^[1]  For those reasons, the appellant abandoned ground H.^[2]  He also rightly conceded during the appeal hearing that if he succeeded in demonstrating a miscarriage of justice on any of grounds A to G, it would be unnecessary for this Court to consider his application for leave to adduce further evidence as the Court would allow the appeal and order a retrial, at which he could lead that evidence.^[3]
5. [5]
   For the reasons which follow, I consider this appeal must be allowed on ground A.  The primary judge’s directions to the jury, as to the complainant’s evidence that the appellant committed unlawful sexual acts against her which were not the subject of specific charges, were inadequate in some important respects.

Ground A:  the adequacy of the judge’s directions as to the evidence of sexual abuse in South Australia.

6. [6]
   Before directly discussing the parties’ contentions on this ground of appeal, I will summarise relevant aspects of the trial including the complainant’s evidence, counsel’s submissions and the judge’s directions to the jury.

Relevant events at the beginning of the trial

7. [7]
   At the commencement of the trial, whilst waiting for the jury panel to become available, the judge and counsel discussed issues likely to arise in the case.  The judge noted that although there were two specific charges of rape, the complainant’s evidence in her recorded statement to police on 4 May 2012^[4] was of four incidents of alleged rape: one in South Australia; the incident constituting count 2; the incident constituting count 3; and a later incident at a property near a dam.  The judge also raised the complainant’s evidence about physical abuse including welts on her bottom, observing that he assumed a strategic decision had been made to lead that evidence.  The prosecutor agreed and defence counsel did not dissent.^[5]  Defence counsel told the judge that the directions to the jury should include, “the direction with respect to discreditable conduct at 61 through to 66.9” of the Supreme and District Court’s Benchbook.^[6]
8. [8]
   During her opening address to the jury the prosecutor stated: 

“Count 1 covers all of the [appellant’s] sexual offending against [the complainant].  You will hear evidence from her in that regard like this: ‘He raped me every night.  He would do the same thing a lot of nights a week.  Sometimes every night.  Sometimes it was every few nights.’  You will hear her describing an occasion not long after her parents separated, which is how you will hear her describe the time that that happened.  She will describe the [appellant] comforting her because she couldn’t sleep.  He started rubbing her back.  Then he took her clothes off and raped her.  [The complainant] will give evidence that these things happened lots and often.

In a house they lived near [a dam], you will hear her described [sic] that he would take her into his room, cuddle her, take her clothes off, touch her, take his clothes off and then have sex with her.  You will hear that evidence, ladies and gentlemen, to prove the offence of maintaining, which is count 1, to reveal and to reflect the whole of the relationship the [appellant] had with [the complainant] over that period of time and to show you his sexual interest in his daughter.  You will hear [the complainant] say that she was too scared to do anything because she had a fear of physical punishment.  You will hear her describe not being able to sit down at school on occasions because she went to school with welts on her bottom, and a time that he struck her for dropping a glass of milk.”^[7]

Relevant aspects of the evidence at trial

9. [9]
   The complainant gave evidence by way of her statement to police and her pre-recorded evidence on 22 May 2015.^[8]  She told police she was born in March 1998.  She lived with the appellant, her mother, her older half-brother, T, and her older brother, J, in Western Australia.  She thought her parents separated when the family was living in South Australia.  She and her brothers remained in the appellant’s care.  She said that after her mother left, the appellant raped her “nearly every night” from when she was “about four” until she was about 10 in grade five.^[9]  When asked the very first thing she could remember, she said that, one night, not long after her parents separated, she could not sleep and the appellant tried to comfort her.  He got into bed with her and rubbed her back, saying she would be alright.  She said he took her clothes off and “started to rape me…basically having sex with me…stuck his penis inside me.”^[10]  When asked “whereabouts insides [her]”, she said she did not know.  She agreed with the police suggestion that she was about five years old at this time.  She remembered they were staying at a caravan park.  The children were meant to stay in the tent and the appellant was in the caravan but when she could not sleep he would take her into the caravan.  Later she told police that she was “pretty sure” it happened on a “really long dirt road that goes through South Australia” and there was a caravan park.^[11]
10. [10]
    T gave evidence to the effect that he moved to Queensland with the appellant, the complainant and J in about 2000.  They first stayed with the appellant’s father in an outer suburb of Brisbane before moving to a medium sized town on the Fraser Coast.^[12]
11. [11]
    The effect of the complainant’s evidence, considered with other evidence at trial including that of T and the formal admissions,^[13] was that the family moved to Queensland before she turned three in March 2001.  It followed that her evidence of the South Australian sexual abuse must have occurred when she was two years old.
12. [12]
    During the complainant’s pre-recorded evidence on 22 May 2015 the prosecutor asked what she meant by “basically having sex with me.”  She said that the appellant lay on the bed and put his penis inside her.  She knew it was his penis because there was nothing else it could have been.  She was not sure why she knew it was his penis but there was nothing else there.  She was lying on her back on the bed and he was over the top of her.  His hands were usually on her face or touching her hair and his penis was touching her vagina.  She agreed these things happened “nearly every night”.  When asked what she meant by “nearly every night” she said the appellant “would do the same thing a lot of nights a week”, sometimes every night, sometimes every few nights.  She did not notice any pattern.  From what she could remember it only happened at night when everyone was in bed and it was dark.^[14]
13. [13]
    The family, she told police, moved to a house in a small town on the Fraser Coast when she was about to start grade one and about five years old, turning six.  She was in the appellant’s bed and he started doing it to her again, raping her.  Her ears started to ring and she asked him what the noise was.  He said, “what noise”.  She said, “that high-pitched noise”.  She was screaming out to him to stop.  She did not know how many times or how long it went on.  She said “he was sticking his penis into [her]” (count 2).  When asked whether other things happened at this house she responded, “Fuckin’ lots” but was unable to give specific details.^[15]
14. [14]
    The complainant told police that the family then moved to a rural property near a small provincial town in the Mackay region where the family lived in tents and a caravan.  Her father’s female friend, KE, moved in.  KE had just had a baby; the appellant was not the father.  The complainant said the family was, “always at the pub until late because that was basically our second home dad loved the pub and umm often we’d come back a little late and [KE] would go to bed…with the baby”^[16] and the complainant and her brothers would go to bed and the appellant would stay up in the “pergola thing” they used as their kitchen.  Once, when KE was not home, the appellant took her into the caravan and raped her.  She could not remember how long this went on.  She was yelling, telling him to get off and stop (count 3).  When asked how many times this sort of thing happened at this property, she replied “lots.”  She could not really remember any other specific occasion.^[17]
15. [15]
    She told police the family then moved to a house in the same area near a dam.  The appellant slept in the caravan while the children slept in the house.  Things happened at this house, she said, “lots of times but … [the appellant] must have knocked [her] out or something when he was doing it cause [she did not] really remember.”  She recalled “him like getting [her] from [her] bed a lot of the time…and taking [her] into his bed” but she did not “really remember too much after that in most cases.”^[18]  She said that she would go to school with welts on her “bum” because the appellant “flogged” her and she “wouldn’t be able to sit down on the chairs” and the teachers would always “get up” her.  When asked if one event stood out, she replied, “Lots of them stand out.”  She described an event which occurred in the house in the small Fraser Coast town: “One time when [she] dropped a cup, [it] was a glass cup…[and she] filled it up with milk…[and she] tripped…over [her] own feet or something and it landed on the floor and he belted [her] for ages about that.”^[19]  She also remembered the appellant hitting her when she didn’t eat her dinner.  When asked who would look after her when her father was away for weeks, she said that KE, who was staying on the property, sometimes came down to check on them but otherwise no-one looked after them.
16. [16]
    In her pre-recorded cross-examination she agreed that when she was at primary school in the small town near Mackay in 2008 she spoke to police for over an hour.  They asked her about what sorts of things she did with her Dad.  She told them that she and the appellant went shopping and had fun and he gave her money for tennis lessons.  She said nothing to the police about any sexual abuse, either then or over the next four years until her May 2012 interview.^[20]  The appellant’s counsel emphasised in cross-examination internal inconsistencies in her evidence, its lack of detail, its inconsistency with other evidence, and put to her that there had been no sexual impropriety with the appellant.  The complainant maintained her account.
17. [17]
    The appellant did not call or give evidence.

Relevant aspects of the parties’ closing addresses

18. [18]
    The prosecutor in her closing address encouraged the jury to accept the complainant as an honest and reliable witness.  The jury would understand why she did not complain to police in 2008.  She was more forthcoming when she spoke to them in 2012.  Her memories were of events which occurred when she was aged between five and 10.  The sexual abuse was always the same.  It became a regular occurrence in her life with one event indistinguishable from another, apart from count 2 where she heard the ringing noise in her ear, and count 3 which happened when KE was away.  She was obviously doing her best to give a truthful account.  The prosecutor emphasised that the complainant said the sexual abuse started when her Mum left and then happened nightly.^[21]  In discussing count 1, the prosecutor highlighted that this offence involved continual or habitual sexual abuse.  The complainant’s evidence, the prosecutor again reminded the jury, was that he raped her nearly every night and that “her parents separated when she was about five,”^[22] adding:

“She talked about an occasion not long after her parents separated he tried to comfort her in bed because she couldn’t sleep.  He started rubbing her back, then took her clothes off, and then he raped her.  She said these things happened lots and often.  He would take her into his room at the house [near the dam], cuddle her, take her clothes off, touch her, take his clothes off and then have sex with her.”^[23]

19. [19]
    The prosecution urged the jury to accept the complainant’s evidence as reliable beyond reasonable doubt.
20. [20]
    Defence counsel’s address suggested that the jury could not be satisfied of the reliability of the complainant’s evidence beyond reasonable doubt.  Defence counsel, too, referred to the complainant’s evidence that she was raped nearly every night,^[24] and that, in the house near the dam, the appellant would take her from her bed into his caravan and rape her.^[25]  Defence counsel emphasised the lack of any detail in or corroboration of the complainant’s evidence, as well as the lack of opportunity for the appellant to offend and their subsequently friendly relationship on social media.  Counsel submitted that it was dangerous to convict on the complainant’s evidence for these reasons.

Relevant aspects of the judge’s directions to the jury

21. [21]
    The primary judge provided draft jury directions to and discussed them with counsel prior to their closing addresses.^[26]  Neither then nor later after the summing up did defence counsel ask for directions of the kind now sought.  His Honour stated that it seemed impossible to comprehend that a jury could reach different verdicts on the different charges and that this was an all (guilty on everything) or nothing (not guilty on everything) case.  The prosecutor pointed out that the jury could convict on count 1 even if they acquitted on counts 2 and 3.  The judge agreed that, theoretically, different verdicts were open.^[27]  The prosecutor submitted that the complainant’s evidence about the appellant’s physical violence towards her was relevant to her lack of resistance and lack of complaint and defence counsel agreed.  The judge stated that he would give a direction about the smacking and remind the jury that it would be wrong to conclude that, because the circumstances of her upbringing were imperfect, this could be relevant to the appellant’s guilt.  That evidence was irrelevant, except insofar as it might provide a motive for complaint or an explanation for why she did not complain earlier.  Both counsel told the judge they were content with directions of that kind.^[28]
22. [22]
    The judge’s subsequent directions to the jury included the following.  As his Honour foreshadowed, he directed the jury that they could return different verdicts on different counts.  But, his Honour explained, in this case the prosecution relied entirely on persuading the jury that the complainant was both honest and reliable so that it might be difficult to return different verdicts on different charges.  This was, however, a matter for the jury.  If they had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.^[29]
23. [23]
    In discussing the elements of count 1 (maintaining a sexual relationship with a child) the judge stated:

“In this case, as well as relying on the specific sexual acts identified as counts 2 and 3 in the indictment, the prosecution relies also upon sexual acts about which the complainant has not been specific as to time or circumstance under which the acts occurred.  Those sexual acts include the initial incident in South Australia, although that’s only relevant to background, because it’s in South Australia and not here; the two charges of specific rape; a third…that she said occurred when they were moved from the initial [property in the Mackay region] to [another property in the Mackay region near a dam]; and then the repeated such acts that she said occurred consistently over the course of the years.

…If you have a doubt about the specific offences of rape in respect of counts 2               and 3, then you should only convict the [appellant] on the basis of the evidence of the other alleged acts if, after carefully scrutinising the evidence of the child, you’re satisfied beyond reasonable doubt that he did those acts during the period alleged in the indictment.  It’s, however, I say to you, difficult to imagine how you could in such circumstances, in this case, have a doubt about the rape and yet convict of the maintaining.  One would think, whilst it’s a matter for you, that if you had a reasonable doubt about her evidence of rape, it would be very difficult to then conclude beyond reasonable doubt, ‘However, I have no doubt that he did rape her,’…if you don’t accept his – her evidence about the particular episodes.  Reasonable doubt with respect to the complainant’s evidence on any specific count should be taken into account and considered by you in your assessment of the complainant’s credibility generally.  However it remains a matter for you as to what evidence you accept and what you don’t.”^[30]

24. [24]
    The judge directed the jury consistent with Longman v The Queen^[31] as to the effect of delay and warned the jury to scrutinise the complainant’s evidence with great care before convicting.  Other reasons for scrutinising her evidence with great care, his Honour directed, included that she could recall only four specific incidents of sexual conduct, despite what she said was their habitual nature; her age; and the circumstances of her upbringing.^[32]
25. [25]
    His Honour reminded the jury that this was:

“a court of law, and it’s not your role to make a determination based on any view you might have about the appropriateness of the upbringing of the complainant and other children by the [appellant].  You should put those sorts of prejudices aside.  It would be wholly wrong to conclude because, for example, he was bringing the children up in a tent or something of that nature, that that somehow meant that he was more likely to commit an offence of this sort.”^[33]

26. [26]
    The jury retired for the evening at 3.47 pm.  At 10.41 am the next morning, in the absence of the jury, the judge raised with counsel his intended directions as to motive.  Defence counsel expressed no objection to the proposed direction but asked the judge not to include a reference to the appellant attending the pub or “potential neglectful matters” as this would unnecessarily draw the jury’s attention to the complainant’s brief comments on these issues in her police interview.  Counsel emphasised, however, that it was important “to say something about motive and to mention the smacking…but not the other matters.”^[34]
27. [27]
    When the jury returned, the judge summarised his earlier directions and dealt with preliminary complaint evidence, inconsistencies in the complainant’s evidence, the appellant’s alleged smacking of the complainant, and motive.^[35]   There is no complaint about these directions.
28. [28]
    His Honour next set out, in directions recorded in over two pages of transcript, the complainant’s evidence of the first episode of alleged sexual abuse in South Australia.^[36]  After reminding the jury of the complainant’s evidence as to count 2, his Honour referred to her evidence that there were, “Fucking lots” of other incidents in the house where count 2 occurred.^[37]  His Honour read the complainant’s evidence constituting count 3^[38] before dealing with the complainant’s evidence as to the appellant sexually abusing her at the house near the dam, adding:

“And this isn’t specific charged acts, so this allegation in the house is relevant only to maintaining, if you find that it occurred beyond reasonable doubt.” ^[39]

His Honour reminded the jury of the complainant’s evidence that it happened lots of times but she did not remember much about most incidents.^[40]

29. [29]
    After dealing with other aspects of the complainant’s evidence not relevant to this ground of appeal, the judge referred to the prosecutor’s submission that the events about which the complainant gave evidence had occurred at least four years earlier and may have become “normalised to her because she said that it’d happened so frequently and that that might explain in the same way as some-one [sic] might not be able to remember episodes of washing up, why [she] couldn’t remember details of this regular abuse.”^[41]
30. [30]
    In summarising the defence case, the judge referred to the submission as to the lack of detail of the regular, almost daily, but certainly several times each week, rapes over a five year period.  The judge reminded the jury that defence counsel:

“submitted that the evidence of a young girl between five and 10 being raped almost every night, at least every night when the [appellant] was sleeping in proximity, is implausible at best…”^[42]

31. [31]
    His Honour also referred to the submission by defence counsel that in May 2012 the complainant said that she had been raped almost every night over a number of years but this was inconsistent with the complainant’s relationship with the appellant on social media.^[43]

The competing contentions in this appeal

32. [32]
    The appellant contended in this appeal that, whilst the complainant’s evidence of sexual acts involving the appellant outside the period charged in count 1 was relevant and admissible, consistent with HML v The Queen, it was highly prejudicial.^[44]  The judge should have given the jury careful directions about the limited purpose for which it was admitted and the standard of proof applicable to its use.^[45]  The judge invited the jury in a general way to have regard to this aspect of the complainant’s evidence in determining their verdict on the maintaining charge (count 1).  The jury should have been clearly directed as to the restricted use to be made of the evidence and warned against impermissible general propensity reasoning: R v WO^[46] and R v Khaled.^[47]  These inadequacies in the judge’s directions to the jury, the appellant submitted, have caused a miscarriage of justice.  The fact that the defence did not request any such redirection did not relieve the trial judge from his lawful obligations.
33. [33]
    The respondent emphasised that the directions which the appellant now says should have been given were not sought at trial.  It was therefore necessary for the appellant to demonstrate, not only that the directions should have been given, but that it was reasonably possible that the failure to give those directions may have affected the jury’s verdict: Dhanhoa v The Queen.^[48]  The directions given were favourable to the appellant.  Defence counsel was given a copy of the proposed directions and was satisfied with them.  Defence counsel’s failure to object was a rational tactical decision so that there was no unfairness: Patel v The Queen.^[49]  There was no realistic prospect that the jury engaged in illegitimate propensity reasoning.
34. [34]
    His Honour, emphasised, stated that the first incident occurred in South Australia so that it could not be used to support the maintaining charge (count 1) and was relevant only to background.  But as the complainant was only two years old at this time, the respondent submitted, there was a real possibility she was mistaken both as to location and timing.  Another possibility was that this first episode actually occurred later and in Queensland and was therefore relevant to count 1.  The judge also told the jury, the respondent emphasised, that they had to be satisfied beyond reasonable doubt that the uncharged acts occurred during the period alleged in the indictment before they could use them as proof on the maintaining charge, count 1.
35. [35]
    The judge directed the jury, the respondent submitted, that if they had a reasonable doubt about the complainant’s evidence on one rape this would be likely to cause them to have a reasonable doubt on the complainant’s evidence of the other rapes.  This was unnecessarily favourable to the appellant.  Defence counsel, the respondent submitted, had every opportunity to request directions of the kind now sought but did not.  In light of the judge’s favourable directions to the appellant, the evidence of acts that may have occurred outside the dates charged (between 30 April 2003 and 1 July 2008) could not have affected the jury verdict or founded an argument for illegitimate propensity reasoning.  A propensity direction, the respondent submitted, would have called unnecessary attention to these aspects of the complainant’s evidence and given it unwarranted importance in the jury’s eyes.  The judge’s directions, the respondent argued, diminished the significance of the evidence of the uncharged acts, particularly the first incident in South Australia and those preceding the period charged in count 1.  The respondent submitted that the directions given strengthened defence counsel’s arguments as to the complainant’s unreliability, particularly as they encouraged the jury, if not satisfied of her reliability about the South Australia incident, to acquit the appellant on all counts.  The directions which the appellant now seeks would have been distinctly less advantageous than the directions already given.  They would have highlighted another means of supporting the complainant’s evidence about counts 1, 2 and 3.  Instead, the jury was told they could use the evidence of the South Australian incident only as background.  The respondent contended the jury would have understood this to mean they could not use the evidence to establish any of the charged counts.  This direction was overly favourable to the defence and the advantage gained by the directions given would have been lost if the directions now sought were also given.  As there was a rational forensic decision not to ask for a redirection, the respondent argued that this ground of appeal must fail: R v GAP.^[50]
36. [36]
    The respondent also contended that a propensity warning is not necessary where the evidence was only utilised to show that a sexual relationship was maintained between the accused and the complainant: WO.^[51]
37. [37]
    For all these reasons the respondent contended that the appellant has not demonstrated a miscarriage of justice arising from ground A.

Conclusion on this ground of appeal

38. [38]
    My summation of the evidence and of the way the trial was conducted makes clear that the complainant’s allegation that the appellant first sexually abused her in South Australia and then raped her on a nightly basis was a significant, indeed, critical part of the prosecution case.  For that reason it also featured in the defence closing address and in the judge’s directions to the jury.  A real difficulty for the Crown, apparently not appreciated by trial counsel or the judge, was that, the prosecution case established the complainant’s family moved to Queensland before she turned three years old, that is before March 2001 and probably in late 2000.  This meant that her evidence, that the appellant first raped her in South Australia and that he subsequently raped her almost nightly, related to events when she was still two years old.  Unfortunately, when police interviewed the complainant in May 2012, she accepted the police suggestion that the initial South Australian incident occurred when she was five years old.  This error was repeated by the prosecutor at trial and was never corrected by either defence counsel or the judge.  The result was that the jury’s attention was not focused on the improbability of the complainant being able to accurately recall events which occurred when she was but two years old.  This was a worrying omission where the complainant’s evidence was general and non-specific; unsupported by other evidence; and her complaint was made years after the alleged offending, even though she had an opportunity to complain during a police interview in 2008.
39. [39]
    As I have noted, the offence of maintaining a sexual relationship with a child (count 1) was charged as occurring between 30 April 2003 (when the complainant was five years old) and 1 July 2008 (when the complainant was 10 years old).  Her evidence of the appellant’s sexual abuse during that time, whether or not it was the subject of specific charges, was admissible to establish that the appellant maintained an unlawful sexual relationship with her during that period: s 229B(3) Criminal Code.  But the complainant’s evidence insofar as it alleged that the appellant first raped her in South Australia and that he committed other regular rapes preceding 30 April 2003 was also relevant and admissible: see HML.^[52]  Careful jury directions were necessary, however, as to its use.  As Hayne J observed with the concurrence of the majority in HML:

“[in] the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt.”^[53]

40. [40]
    The judge’s directions in this case did not follow that ordinary course.^[54]  The judge said that the complainant’s evidence of the initial alleged rape and subsequent rapes in South Australia were “only relevant to background.”  As his Honour did not explain what he meant by “background,” this was of limited assistance.  The complainant’s evidence of the initial South Australian rape and of subsequent rapes preceding 30 April 2003 wherever they occurred was admissible to explain, render intelligible and put in context the complainant’s account of the acts consisting counts 1 to 3.  It was capable of showing that she was not describing isolated events which might otherwise seem implausible.  HML makes clear that such evidence is admissible as proof of background or relationship only if it met the requirements discussed in Pfennig v The Queen.^[55]  This meant that, before the jury could use the evidence of those earlier acts to show the appellant had a sexual interest in the complainant so that it was more likely he did what she alleged in counts 1 to 3, they must be persuaded beyond reasonable doubt that he did all or some of those earlier acts.  Whilst his Honour directed the jury that they must be satisfied beyond reasonable doubt of the complainant’s evidence of any of the acts upon which they relied to establish count 1, he did not make clear what standard of proof was applicable before they used the complainant’s evidence of the first of rape in South Australia and the subsequent rapes pre-dating 30 April 2003 as “background.”  Nor did his Honour point out to the jury the very salient fact that the complainant was but two years old when she complained that the appellant first raped her in South Australia.
41. [41]
    The respondent rightly contended that, it is not necessary to give directions of this kind in every case and directions need to be framed to meet the particular case, as was recognised in HML and more recently by this Court in WO.^[56]  Those directions, however, should be given in the ordinary course.  This was not a case like Khaled^[57] where the impugned directions gave sufficient guidance to the jury as to the limited use to be made of the evidence of the uncharged acts and made clear that the jury could not act on that evidence unless they accepted it as reliable beyond reasonable doubt.  Unlike in Khaled, the directions in this case were not appropriately framed to meet the case.
42. [42]
    The respondent also rightly pointed out that the directions now sought were not requested by defence counsel at trial.  But that did not relieve the trial judge of his obligation to properly direct the jury as to the applicable law where the failure to do so may have affected the jury verdict: Dhanhoa.^[58]  I am not persuaded by the respondent’s contention that defence counsel’s omission to ask for directions of the kind now sought was a deliberate forensic decision.  Defence counsel, like the prosecutor and the judge, failed to appreciate that, although the complainant had accepted a suggestion put to her by police that the first time the appellant sexually abused her in South Australia was when she was five, the evidence and admissions at trial established that, if this happened, it happened when she was but two years old.  The reliability of her memory of incidents from such a young age must be questionable.  In light of that concerning slip, it seems more probable that defence counsel’s omission to pursue an application for redirections of the kind now sought and as initially foreshadowed at the commencement of the trial^[59] was an unfortunate oversight.  The respondent’s theory that the complainant may have been mistaken as to when and where the first act of sexual abuse occurred, so that it may have occurred within the charged period in count 1, and in Queensland rather than South Australia, was not an inference reasonably open on the evidence.  Unlike in R v GAP,^[60] the subject matter of these impugned directions was a critical part of the prosecution case demanding clear and careful jury directions to ensure the evidence was not misused.
43. [43]
    The respondent contended that the judge’s directions were more favourable to the appellant than the directions now sought; his Honour directed that if the jury had a doubt about the complainant’s evidence of one rape, including the initial South Australian rape, then the jury should acquit on all counts.  I did not apprehend that was the effect of the directions.  Rather, his Honour appeared to direct that if the jury had a doubt about any of the specific offences of rape charged as count 2 and 3 then they would also likely have a doubt about count 1.^[61]  The direction would remain apposite even if the direction now sought by the appellant was given.
44. [44]
    It is clear the judge endeavoured to give the jury a balanced summation of the issues at trial.  But his Honour should have separately identified for the jury the complainant’s evidence about the initial alleged rape in South Australia and the subsequent rapes which she said then occurred nearly every night, up until 30 April 2003 (the commencement of the maintaining charge, count 1).  His Honour should have explained that at this time the complainant was aged between two and five years old and invited them to consider whether she could give reliable evidence about events occurring when she was as young as two.  If the jury accepted her evidence about these episodes of sexual abuse beyond reasonable doubt, they could consider whether this demonstrated he had a sexual interest in her and was willing to give effect to that interest so that it was more likely he committed counts 1, 2 or 3.  If the jury were not so satisfied they could not use that part of the complainant’s evidence as proof of counts 1 to 3.  Even if they were satisfied that the appellant committed some or all of the alleged sexual acts preceding 30 April 2003, they should not reason that, because the appellant had done these things, or some of them, he was therefore guilty of counts 1, 2 and/or 3.  The jury must independently decide whether, having regard to the whole of the evidence, the elements of each offence charged as counts 1, 2 and 3 were established to their satisfaction beyond reasonable doubt.
45. [45]
    As to the last proposed direction concerning propensity, as the respondent contended, Keane JA in WO^[62] observed that such a direction is not necessary in a case such as this.  The other members of the court did not join in those observations.  Even accepting Keane JA was correct, the shortcomings in the directions in this case went well beyond propensity, so that those observations do not undermine the strength of the appellant’s submissions on this ground.
46. [46]
    The judge’s failure to give those directions left open the real possibility that the jury may have used the complainant’s evidence of the appellant’s sexual abuse pre-dating 30 April 2003 when count 1 commenced, to strengthen the prosecution case, on counts 1, 2 and 3, without being satisfied beyond reasonable doubt of the reliability of the evidence of events pre-dating 30 April 2003.  It follows that the inadequacies in the directions to the jury identified in this ground of appeal may well have affected the verdict.
47. [47]
    For those reasons the appeal against conviction must be allowed, the guilty verdicts set aside and a new trial ordered.  It is unnecessary to deal with the remaining grounds of appeal or the application to adduce further evidence which the appellant will be free to now adduce at any retrial.

Orders

1. The appeal against conviction is allowed.

2. The verdicts of guilty are set aside.

3. A retrial is ordered.

48. [48]
    PHILIPPIDES JA:  I agree that the appeal should be allowed, the verdicts of guilty be set aside and a re-trial ordered for the reasons given by the President.
49. [49]
    BURNS J:  I agree with the reasons of, and the orders proposed by, the President.