R v MDO[2023] QCA 2

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  For the reasons given by Dalton JA, I joined in the making of the orders on 17 November 2022.
2. [2]
   DALTON JA:  The appellant was convicted after a trial of one count of maintaining a relationship with a child, five counts of indecent treatment of a child, and three counts of rape.  He appeals on the basis that a miscarriage of justice occurred because evidence was admitted of a general behavioural change exhibited by the complainant after the course of sexual offending is alleged to have begun and: (1) the complainant was never asked by the prosecution about this behavioural change, yet the jury was invited to speculate about the reasons for the behavioural change, and (2) the trial judge did not, in these circumstances, direct the jury to disregard the evidence of behavioural change.  At the beginning of the hearing before us the Crown conceded the second ground of appeal should succeed.  After hearing oral argument, this Court ordered that the appeal be allowed.  The convictions below were set aside and a new trial was ordered.  These are my reasons for joining in those orders.

Evidence in the Crown case

3. [3]
   As a young child the complainant loved animals, and horses in particular.  Her parents moved to a small rural block.  On a neighbouring block lived the appellant and his family.  The appellant was a good horseman, and his wife was a horse-riding instructor.  They had horses and other animals, and had a covered horse‑riding arena and other equipment.  These things made the property attractive to the complainant.  She began horse-riding lessons with the appellant’s wife at about the age of five.  At some stage the Crown case was that the appellant took over that horse-riding instruction, or at least began giving her horse-riding instruction as well as his wife.  As time went on the complainant spent more and more time at the appellant’s yards.  Once she was old enough, and had a horse of her own, she was able to ride her horse to the appellant’s yards independently of her parents.
4. [4]
   There were other attractions at the appellant’s property.  He and his wife had two children who were of similar ages to the complainant and her younger sister.  The four children got on well.  The complainant’s family and the appellant’s family became friendly over the years.  The appellant and the complainant’s father had shared interests and spent so much time at each other’s homes that they joked about having their own chairs in each other’s loungerooms.  The complainant’s home did not have internet; the appellant’s home did.  The complainant’s father worked as a fly‑in fly‑out worker, so that for three weeks at a time he would be absent from home.  Her mother worked as a nurse.  At least some of the time, this involved her working night‑shifts and sleeping through the day.  The result was that the complainant and her younger sister spent a great deal of time at the appellant’s property.
5. [5]
   Against this background the Crown case was that, from the time the complainant was in grade 5, the appellant began a course of sexual comments and small sexual assaults against the complainant.  Her evidence was that this became very frequent so that whenever the appellant had the chance, he would brush his hands against her breasts, or manoeuvre her hands so that they touched his genitals.  She said the occasions had “blurred together” in her mind.  This uncharged conduct was relevant to the maintaining count.  As well, the complainant identified two oral rapes and four indecent dealings which she said occurred before she went away to boarding school in the middle of her grade 7 year.  These were counts 2 to 7; they were relied upon by the Crown as evidence to support the maintaining count along with the uncharged acts.  The final two counts on the indictment (digital rape and indecent treatment) were alleged to have occurred after the complainant went to boarding school.  Because they did not form part of a continuous group of sexual offences, they were not relied upon in support of the maintaining charge.
6. [6]
   The offending was alleged to have occurred over a long period of time.  The complainant said it began when she was 11 years old and in grade 5.  The last offence is said to have occurred when she was 15.  Her evidence was that, at first, she did not really understand the significance of what was happening because she was so sexually naïve.
7. [7]
   The complainant said the first time she recalled anything definite happening was an occasion when she was about 11 or 12, and in grade 5 or grade 6.  She and her little sister were with the appellant, and other members of his family, cleaning his boat.  He commented about the size of her breasts.  She said that later on that afternoon she, her sister, the appellant’s two children, and the appellant went swimming in a local creek and “he pulled me over on to his lap basically and like hugged me and like just started feeling my boobs, my breasts and stuff like that under my shirt and bra”.  This was count 2 on the indictment.  She said the other children were too little to notice anything, and at the time of the offending, the water would have been up around her shoulder level.  She did not say anything.
8. [8]
   In the police interview the complainant finished describing that episode and was then asked to describe “the next major thing that you can remember”.  The complainant said that she did not know “how far along it was”, but then described an incident where the appellant “wanted me to give him head … I obviously said no and then he was like, um, if you don’t I’ll do the exact same stuff to your little sister. … so like threatening and I obviously didn’t want that to happen to her um, so I did that for him, I guess and that was in the lounge room of his house”.  This was the subject matter of count 3.  The complainant said that she and her sister were at the appellant’s house.  Her sister was playing with the appellant’s son outside; the appellant’s wife was dropping her daughter off to her grandparents’ house.  She said:

“He sat in his [lounge] chair, um, and leaned me down I guess so my head and, yeah, it started like that and I would have still only been in grade 5 or 6, … or halfway through grade 6 … ‘cause that’s when I remember going home [to mum] and telling her I wanted to go to boarding school. …”

9. [9]
   The complainant continued that the appellant asked her, “do you want to do something?”.  And then “he never actually said what to do, he was just very like more actions forcing me, me to, if that makes sense”.  She said that he sat down in his chair, grabbed her by the hair and pulled her down because she was standing up.  She said he pulled her down onto her knees “and like just forced my head down on to his dick basically.  And then I had my mouth closed but he like pried it open like I had some spasm thing in my jaw … so just like pushed like the joint of your jaw like that and it like opened then.”  After that she said that she sucked his penis and that he came in her mouth and she ran away and went home.
10. [10]
    While the Crown prosecutor put the case to the jury on the basis that the appellant groomed the complainant and at first performed more minor sexual assaults on her, the evidence of this violent oral rape does not fit in that characterisation of the chronology of the offending.  It was the second offence described by the complainant to police, and it was described as having taken place when she was in grade 5 or 6, a time when she said she was so sexually naïve she had not recognised more minor sexual offending for what it was.
11. [11]
    The next three indecent assaults and the next rape (counts 4-7) are all alleged to have occurred after the violent oral rape just described, on occasions when the complainant visited the appellant’s home, as part of the regular family friendship and horse-riding relationship described above.
12. [12]
    Count 4 is a count of indecent treatment where the complainant says that the appellant touched her breasts with his hands while she was riding a horse.  Count 5 is a count of indecent treatment which happened at or about the same time as count 4, where the appellant is alleged to have put the complainant’s hand on his penis outside his clothes.
13. [13]
    Counts 6 and 7 occurred at about the same time as each other.  The complainant says that she was at the appellant’s home.  His wife went out shopping in the car with her two children and the complainant’s little sister.  She went into the appellant’s son’s bedroom and lay down on the bed.  She says that the appellant came into the bedroom and locked the door.  The indecent assault consisted of him touching her breasts with his hands.  She said that after that he used his hands to choke her and then forcibly insert his penis into her mouth and proceeded to have oral sex with her until he ejaculated.
14. [14]
    In the second semester of her grade 7 year the complainant was sent to boarding school.  Her mother’s evidence was that she made the decision as a result of the complainant’s bad behaviour in the family home, not just to her younger sister (see below), but also toward her mother – t 3-13.  Also, her mother said her schoolwork was deteriorating – t 3-14.  The mother said that, had the complainant not agreed to go to boarding school, she would have been sent to live with her aunt or grandmother.  The complainant says that it was she who wanted to go to boarding school, to escape the continual sexual marauding of the appellant.
15. [15]
    In any case, the importance of the move to boarding school in the chronology of the offending is that counts 8 and 9 occurred after the complainant went to boarding school.  Her mother’s evidence was that when the complainant returned home from boarding school she frequented the appellant’s property.  Count 8 was alleged to have occurred when the complainant was home from boarding school and she and her little sister went to the appellant’s house and were playing with his children.  That afternoon the appellant drove them back to their house.  Her sister got out of the car first, and the complainant was still in the front passenger seat of the car.  She says the appellant locked the car doors and lent over her.  He put his hand down the front of her shorts and tried to put his fingers into her vagina.  The complainant protested, but the appellant said that if she did not submit, he would do it to her little sister.  He had trouble placing his fingers in her vagina, so he licked his fingers and then tried again, pushing his fingers into her vagina about five times.  He then unlocked the doors so that she could leave the car and she did so.
16. [16]
    Count 9 of the indictment was that when the complainant was 15 years old she had gone to a rodeo and was sitting at the bar with her friends when the appellant came up behind her and grabbed her in the breast area.
17. [17]
    On the Crown case, one question which must have arisen for the jury’s consideration, was why the complainant continued to return to the appellant’s house, particularly after the first violent oral rape, and particularly after she went away to boarding school (on her evidence to escape the appellant).  The attraction of horses, an arena, the internet and company might have been thought by the jury sufficient to overcome the complainant’s reluctance to visit the appellant’s premises if all that was occurring was relatively minor sexual assaults, particularly as the complainant described that she was so young that she “didn’t really know any different”.  The same considerations may also have been thought to explain her visits after the more serious, but still relatively minor, indecent treatment which formed the basis of count 2.
18. [18]
    However, the violent oral rape which is the subject of count 3 must have been very frightening to a naïve 11 or 12 year old girl.  After that, there was a very focussed question for the jury as to why the complainant would continue visiting the appellant’s premises frequently and regularly, including when she returned from boarding school for holidays.  There were the attractions of the appellant’s premises already described.  The two families were close.  But central to the Crown case was the idea that the complainant’s behaviour was at least in part due to what was expressly referred to as “threats” and “blackmail” from the appellant that if the complainant did not co-operate with him in his sexual offending, he would abuse her younger sister.  The prosecutor said at the very beginning of her address to the jury:

“MS GEORGOURAS ADDRESSED THE JURY:

The words of [the complainant] in her interview with – sorry, in her cross-examination when she was being asked questions by Mr Sheridan were this. ‘It was a lot more persuasive in my mind because I had had enough. I didn’t want it to continue’, and then he had said that stuff in relation to – about her sister and she said, ‘Obviously I was in a fight or flight mode, and I believe that in that instance, I did what any other big sister would do for my little sister’. He asked her, ‘So, were you protecting her?’ and [the complainant] told you ‘I believe so’. That is essentially what this entire case is about. It’s about [the complainant] protecting her little sister and that’s the reason why she went along with what [the appellant] was doing and she wasn’t complaining to her parents.

When you think about what you know about [the complainant], we know that she loved horses, we know that she loved her little sister and that she was always her protector. We know that they came from a home where their parents were working hard, that they weren’t around during the day. Her dad was flying-in and flying-out three weeks on, three weeks off, and her mum was sleeping during the day because she was working nightshift.

The defendant knew that the complainant loved horses. The defendant knew that the complainant loved her sister. And the defendant knew that her parents were not around to supervise her, and she clearly didn’t have that close relationship with them whilst they were away or sleeping. He was able to use that knowledge in order to manipulate the complainant and in order to form this relationship and this bond in order to offend against her. He relied upon her love of horses. He relied upon her willingness to protect her sister. And he relied upon her lack of family support. …”

19. [19]
    A little later in her address the prosecutor said:

“[The complainant] was complicit in the behaviour, there was the original threat against her sister, but in the end it just became a part of her life over those two and a-half years.

She also didn’t fight back or tell her parents or anyone because he had threatened to do it to her sister and clearly enough, if she was willing to perform oral sex on the defendant in his home while her sister played outside, and she was willing to protect her to that level, you would think that it made sense that she wouldn’t then go and tell someone about it if she really thought that he was going to do it to her sister.”

20. [20]
    The threats to sexually assault her little sister, which the complainant says were made on the occasion of the first oral rape (count 3) and the digital rape (count 8), were linked to a separate body of evidence concerning the complainant’s behaviour towards her little sister.  The complainant’s mother was called by the prosecution, and her younger sister gave a statement to police which was tendered.  What the prosecutor sought to make from part of their evidence is contained in the prosecutor’s address as follows:

“You’ve heard [the mother] came and gave evidence about [the complainant’s] childhood and her relationship with her little sister … She’s told you that [the little sister] was a tiny child, she was very petite, she was like a little doll and [the complainant] treated her in that way. She said that [the complainant] was like [the little sister’s] protector, and that in fact [the little sister] didn’t even speak until [the complainant] was old enough to go to school because she didn’t need to. [The complainant] would speak for her. She also told you that this continued until grade 6, and that’s a really important feature is that my learned friend makes mention teenage girls, sure, sometimes they fight with their sisters, but at the point that it changes, she is in grade 6, and this is exactly when the offending is in its height.

This is exactly when the defendant is making threats against [the little sister] and the complainant is having to perform sexual acts on him in order to protect her little sister. That’s really important. [The little sister] told you in relation to the complainant, in her 93A at pages 9 and 10, she said, ‘She just really wanted to like – she just went to boarding school. She tried hating me and I went what the hell, and then she just like went to boarding school. She went on to say she just like hated me. Like the definition of “hate”, she did that to me. It was rough. She said she used to be happy, and then she was just hating me.’ I went, ‘What the hell?’ and yeah, then she went to boarding school. So you can see that this behaviour’s increasing, it’s escalating. She’s taking it out on [the little sister] clearly because she has been doing this – these acts for the defendant in order to protect her little sister. That’s the reason that she was going along with it. She’s now metaphorically standing in front of her protecting her and of course, she’s angry at her little sister that this is what she’s having to go through. And this wasn’t just normal sisters fighting or a brother and sister fighting. You’ve heard [the mother’s] evidence that it was actually physical and that [the complainant] was physically violent towards her little sister who you’ve heard is small and dainty and very nice.”

21. [21]
    Before turning to the grounds of appeal, I wish to say something about the factual evidence which underlay the above submissions on the part of the prosecutor.  While it could not be said the prosecutor went beyond the evidence, it seems to me on reading that evidence that: (a) much of it was led, without objection, in inadmissible form, and (b) it raised many questions, and some significant inconsistencies, which were not clarified by the prosecutor, or the subject of cross-examination.
22. [22]
    The complainant’s mother gave evidence that the complainant and her little sister would interact in a “very loving” way.  She went on to say “she was very loving to a point and then that changed”. – t 2-36.  She elaborated:

“It was at the end of grade 5 going into grade 6 before I noticed it starting to change the attitude towards [the complainant] to [the sister].  It just started to deteriorate a bit.  Right into year 6, it was like a warzone at our house.  She’d gone from a loving sister to treating her sister really, really badly.  I – it just started off verbally.  As the years went on, it got physical, and I could never understand why, because she was so loving.

…

… no matter what [the sister had] done, like, she didn’t wash up right.  She didn’t put the clothes away right.  Horses, you know.  No matter what she’d done with the horse, it was always wrong.  [The sister] could never do anything right in [the complainant’s] eyes.  It was just negative and negative and negative all the time.  It was – I don’t know.  Just – on the outside world, you’d call it bullying …” – tt 3-11‑12.

23. [23]
    A lot of this evidence was inadmissible.  It consisted of statements of opinion and conclusory statements, but was very short on factual description of the complainant’s behaviour.  Unless the jury, as the trier of fact, could examine the behaviour (as opposed to the mother’s impression or opinion about the behaviour), it could not safely draw any conclusions about what might have caused it.
24. [24]
    The same criticisms apply even more strongly to the evidence which was before the jury from the complainant’s sister.  She said in her police interview:

“SCON CREA:  Yeah.  So tell me about [the complainant] going to boarding school.  What was going on at that time?

[COMPLAINANT’S SISTER]:  I don’t know, she was like just really wanted to like just went to boarding school and then like she tried hating me and I went what the hell and then she’s like went to boarding school kind of thing.

SCON CREA:  So when you say she was hating you---

[COMPLAINANT’S SISTER]:  Yeah.

SCON CREA:  Tell me about that?

[COMPLAINANT’S SISTER]:  She just like hated me like the definition of hate, she like did that to me kind of thing.  It was like rough.

SCON CREA:  And what were you like before that?

[COMPLAINANT’S SISTER]:  She used to be happy and then she was like hating me, what the hell.  And then, yeah, she went to boarding school.

SCON CREA:  Mmm.

[COMPLAINANT’S SISTER]:  Like we use to be close and now it’s like we’re not close anymore.

SCON CREA:  And what, do you remember what year, how old you were when she went to boarding school?

[COMPLAINANT’S SISTER]:  Grade five.

SCON CREA:  You were grade five?

[COMPLAINANT’S SISTER]:  Yeah.

SCON CREA:  Do you remember, I know it might upset you a  bit so I’m, but when you said she started like hating on you, was there anything, like was there a time that you realised like that things changed?

[COMPLAINANT’S SISTER]:  No.  It was like it was like kind of easy but then she was just like boom and then she just like went to boarding school and like we just like lost our closeness.”

25. [25]
    As to the point I raise at [21](b) above, the mother’s evidence was not only that the complainant’s behaviour towards her sister deteriorated, but that her behaviour towards her mother deteriorated, and that her “schooling” deteriorated but no facts were given about this, only conclusions.  Further, her mother’s evidence was that up until the time the complainant left for boarding school, she and the sister slept in the same bed together, notwithstanding the sister had a bedroom of her own; this was apparently put forward by the mother as a sign of the sisters’ closeness.  This evidence certainly contradicted the idea that at about grade 6 the complainant’s love for her sister was replaced by hate.  As well, the evidence of the sister, extracted above, was that the closeness between the sisters ended soon before the complainant was sent to boarding school.  That was in the second half of her grade 7 year, not before, as her mother had said.
26. [26]
    Further, the sister’s statement to police was that she did not particularly like horses, and that after the complainant went to boarding school, she did not visit the appellant’s property.  This jars somewhat with the idea that the complainant was forced to continue seeing the appellant to protect her sister.  These matters were not explored in cross-examination, or the subject of evidence led from the appellant, or his wife.
27. [27]
    I turn to the grounds of appeal.
28. [28]
    The two grounds of appeal were very closely connected.  The first was that there had been a miscarriage of justice because the jury was invited to “speculatively draw an inference adverse to the accused” from the change in behaviour of the complainant towards her little sister when none of the factual matters underpinning the Crown submission had been led through the complainant by the prosecutor in examination‑in-chief.  The second ground of appeal was that, in these circumstances, the trial judge ought to have directed the jury to ignore the submission that they could draw an inference that the complainant’s change in behaviour corroborated the complainant’s evidence.
29. [29]
    The prosecutor led no evidence through the complainant herself as to: (a) her relationship with her little sister when they were young; (b) whether or not that relationship changed at any stage, and if so when, and (c) if the complainant was aware of a change in the relationship with her little sister, what she attributed the change to.  As explained above, the idea that the complainant’s relationship with her little sister changed was central to the Crown case.  In my view, as part of the prosecution’s obligation of fairness, it was necessary for the prosecution to lead evidence from the complainant as to these factual matters.  It could not be assumed that the complainant would have given factual evidence which supported the Crown’s theory about these matters.  Because of the importance of the matters to the Crown case, the failure to lead evidence about them from the complainant occasioned a miscarriage of justice in my opinion.
30. [30]
    Having said that, I have reservations about the idea that any evidence as to the change in behaviour of the complainant was admissible on this trial, so that while I do think the ground of appeal is made out, I do not want to appear to be encouraging the idea that the difficulties with this evidence could be solved simply by having the complainant give some more of it.
31. [31]
    Turning to the second ground of appeal, cases about the use of evidence as to general behavioural change as corroborative of sexual abuse of a child have been cautious and somewhat sceptical.  The New Zealand case of R v R^[1] is one of the few cases where evidence of change in behaviour was held to be admissible “as part of the context and relevant to the complainant’s credibility” in a sexual abuse case.  The court said:

25. “[44]
    The admissibility of this type of evidence has also been considered in other jurisdictions. It suffices for these purposes to note that the Australian, Canadian and the United Kingdom authorities, helpfully assembled by the respondent, indicate some caution towards the admissibility of this type of evidence but do not adopt a blanket rule against admissibility. Some of these cases are not easily reconciled, indicating the assessments made were fairly case-specific.

Summary of the position

25. [45]
    To summarise, it is helpful to confirm that the admissibility of the evidence in issue is governed by the application of ss 7 and 8 of the Evidence Act 2006. In other words, the evidence will be admissible if it is relevant and its probative value is not outweighed by its unfairly prejudicial effect.
26. [46]
    As was said in Henderson and by the Court of Appeal in this case, evidence of the sort in issue in this case is admissible where sufficiently proximate in time to the offending ‘as evidence that something out of the ordinary was happening in the complainant’s life’. Evidence of this nature may also provide the other side of the coin to reliance by the defence on aspects of the complainant’s behaviour, for example, as a response to reliance on the absence of any apparent change in the complainant’s behaviour. This evidence may also be admissible as part of the context. For example, it may, as was said in R (CA129/2017) v R, anticipate ‘the inevitable attack’ on the content of earlier complaints made by a complainant, or arising from the retraction of a complaint, or from continued contact with the defendant after alleged offending. Further, it may provide a response to reliance on delay in complaint.
27. [47]
    We agree, as Mr Chisnall submits, that there is an inherent tension in the use of the evidence in issue here. That tension arises from the fact that this evidence inevitably has an element of self-boosting. As the respondent says, one of the reasons for leading the evidence is to show the something going on in the complainant’s life on the Crown case is the alleged offending. It is accordingly necessary to be cautious about claiming too much in reliance upon the evidence. For this reason also, the judge should consider the need to direct in relation to the proper use of the evidence and it will generally be important for the judge to direct the jury not to jump from the evidence of behavioural change to the conclusion that the offending must have occurred. That is particularly so in those cases where this type of evidence will be front and centre in the trial. In addition, the judge should also consider whether any tailored direction not to be influenced by matters of prejudice and sympathy should be given. We add that, as is implicit in our approach, evidence as to behavioural change within the ordinary experience and knowledge of lay people will not generally require expert evidence.”  (my underlining).

32. [32]
    In R v H^[2] Jones J, with whom McPherson JA agreed, said:

25. “[22]
    The question of changes in the behaviour of a child as constituting a corroborative circumstance was considered by the Court of Appeal in R v Link. In the joint judgment of Macrossan CJ and McPherson JA the following appears:-

‘Distress has been recognised as capable in law of constituting a corroborative circumstance fit for consideration by the jury. But it has also been acknowledged that, before it is capable of being so considered, there is an initial question to be determined. It is whether it is a reasonable inference from the evidence that a causal connection exists between the matter of the complaint alleged and the distressed condition: Flannery (1969) VR 586 at 591. If the circumstances are such that the causal connection or apparent relationship between the distressed condition and the matter of complaint is “tenuous or remote”, then the duty of the trial judge is to withdraw it from the jury as a circumstance capable of being considered as corroborative’.

25. [23]
    In this case although the mother’s observations of changed behaviour were contemporaneous with the alleged offence, the changes were not so significant as to cause her to bring them to the attention of any other members of the household, including the complainant’s father. There was, having regard to the mother’s reaction to the complainant’s disclosure, her reaction to the continued visits of the child to his aunt’s residence and her reaction when giving evidence, an obvious danger of over-elaboration in the description of the change of behaviour. Fundamentally there arose a question of whether the inference could reasonably be drawn of the [causal] connection between the matter of the complaint and the child’s condition. Without that inference the evidence had no relevance to the issue in the case and it was highly prejudicial to the accused.
26. [24]
    In my view, having regard to the circumstances and the lack of any expert evidence there is a serious doubt whether such an inference could reasonably be drawn.”  (my underlining).

33. [33]
    In R v Ambury^[3] Holmes JA said this on the topic:

25. “[38]
    In my view, it is far from established that evidence of general behavioural change of the kind relied on here is admissible to support a complainant’s account. Counsel for the respondent was able to point to only one relevant authority: R v H. In that case, evidence was led about changes in a five-year old complainant’s behaviour about the time of the alleged incident of indecent dealing; his mother said that he began to wet his pants, his eating habits altered and he was unresponsive to her questions about what was wrong. She had not, however, raised any of those issues with anyone else and there was no expert evidence to connect the child’s reaction with the alleged incident of sexual abuse. This court concluded that no inference could reasonably be drawn of a causal connection between the matter of the complainant and the child’s condition. It may be seen that the behavioural change alleged, unlike what was described here, was specific and limited. Nothing in that case suggests a broad view of what is available as corroborative evidence.
26. [39]
    However, it is unnecessary for present purposes to explore the limits of what may be led. The appellant’s contentions about the absence of a clear causal relationship must be accepted. The changes in behaviour which the Crown relied on were not linked to any specific incident of sexual abuse; there was considerable uncertainty about whether even a temporal connection between them and the commencement of the offending could be made; they reflected, at the highest, a worsening of an already present behavioural pattern; and there were inherent contradictions in what was said of F’s reluctance or otherwise to be in the appellant’s company. The relationship between F’s behaviour and the offending is correctly described as ‘tenuous or remote’. The evidence should not have been left to the jury as capable of corroborating F’s account.
27. [40]
    Counsel for the respondent here suggested that the trial judge’s direction which, in essence, told the jury that they could use the evidence only if they were, in any case, satisfied beyond a reasonable doubt that the offending had occurred, effectively neutralised the evidence. Although, in my assessment, the jury was entitled to accept and act on F’s evidence so as to make their verdict otherwise a reasonable one, this was, as counsel for the appellant said, a finely balanced case. There is a real risk that a miscarriage of justice occurred because the jury regarded the evidence as lending support to F’s account; and one could not derive any confidence that they reasoned otherwise from the fact that the trial judge’s direction was, with respect, somewhat circular and confusing.
28. [41]
    In my view, the appellant has made out this ground. The appeal should be allowed, the convictions quashed and a re-trial ordered.”  (my underlining).

34. [34]
    In this case, the conclusion which the Crown asked the jury to draw was not just that the complainant’s change in behaviour was connected to, and corroborative of, sexual abuse by the appellant.  The prosecutor advanced a more complicated chain of reasoning than that.  Its focus was a change in behaviour towards the sister (ignoring the evidence of other bad behaviour).  The jury was invited to reason that the complainant’s change in behaviour towards her sister corroborated that she was being sexually abused by the appellant.  Threats were made to her, about her younger sister, and because the complainant loved her sister so much she therefore endured continued abuse, and continued to visit the appellant frequently for years after violent abuse was perpetrated upon her.  The change in behaviour was the result of a complicated psychological process (whether conscious or unconscious) in which the complainant began persecuting her sister, because she was the cause of the complainant’s predicament.
35. [35]
    The judgments in R v H and R v Ambury both emphasise that before evidence of a change in behaviour can be in any way relevant, it must be behaviour which can be causally connected to the sexual abuse.  Where there was no expert evidence, I cannot think that the jury could be asked to accept the above chain of reasoning as probative of the appellant’s guilt.  I do not think this is the sort of case where the evidence as to the behavioural change relied upon by the Crown was within the ordinary experience and knowledge of lay people, to use the words from R v R, above.  The evidence, and associated submissions, were certainly significantly prejudicial to the appellant.  The appellant said that the trial judge should have directed the jury to ignore it.  I agree with that submission.  In fact, objection was taken to some of the evidence; it should not have been admitted.
36. [36]
    The contentious evidence, and the prosecutor’s psychological theorising about it, was central to the Crown case.  It went not just to the occurrence of the abuse, but to explain why the complainant continued to associate with the appellant after his offending against her began.  In terms of the grounds of appeal advanced, there was a miscarriage of justice caused by the fact that the Crown did not seek to lead evidence from the complainant about her behavioural change, and because the trial judge did not direct the jury to ignore the evidence.
37. [37]
    Because there may be a retrial, I would venture somewhat further to say that, even if the Crown: (a) led evidence of a change of behaviour in proper factual terms (rather than in terms of opinion or conclusion as was done at the trial); (b) led evidence from the complainant, and (c) led evidence from a psychiatrist, that evidence would still have to be carefully scrutinised to determine whether it had any probative value at all.  If the Crown were to attempt such an exercise in the future, consideration ought to be given to determining questions of admissibility on a s 590AA application where the relevant witnesses can be examined and cross-examined in the absence of a jury.
38. [38]
    FLANAGAN JA:  I agree with Dalton JA.