IpsofactoJ.com: International Cases [2008] Part 7 Case 15 [HCA]


HIGH COURT OF AUSTRALIA

Coram

HML

- vs -

Australia

GLEESON CJ

CRENNAN J

GUMMOW J

HAYNE J

HEYDON J

KIEFEL J

KIRBY J

24 APRIL 2008


Judgment

Gleeson CJ

  1. These matters raise issues concerning the admissibility at a criminal trial of a certain kind of similar fact evidence, and the proper directions to be given to a jury in the event that such evidence is admitted. In each matter, the evidence was that of a complainant who, in addition to giving an account of specific acts the subject of the charge or charges in an indictment, testified that other such acts had taken place between the accused and the complainant. This was described in argument as evidence of uncharged acts. I am content, for the purpose of stating my reasons, to adopt the description used in argument, although I do not suggest that it would always, or even usually, be a helpful phrase in a trial judge's directions to a jury. Of course, evidence of uncharged acts might come from a source other than the complainant; and uncharged acts of the same kind as the charged acts are themselves a particular example of evidence that reveals criminal or discreditable conduct of an accused other than the conduct with which he or she is charged. There are wider issues involved.

  2. In cases of alleged child sexual abuse, it is not uncommon for a complainant to assert that the incidents the subject of charges against the accused were part of a pattern of behaviour that extended over a period of time, perhaps many years. There is nothing new about this kind of evidence, although in recent years the increase in reporting of, and prosecution for, child sexual abuse has drawn wider attention to some of the problems involved. In KRM v The Queen (2001) 206 CLR 221 at 230 [24], McHugh J pointed out that, in cases of sexual offences, evidence of uncharged acts between the accused and the complainant has long been admitted. He said that such evidence tended to explain the relationship of the parties or made it more probable that the charged acts occurred. In a footnote, he referred to a number of authorities, the first of which was R v Ball [1911] AC 47, a decision of the House of Lords in 1910. In that case, which concerned incest, the Lord Chancellor (at 71) referred to the law "which is daily applied in the Divorce Court .... to establish .... the existence of a sexual passion". His Lordship was referring to evidence of "guilty relations between the parties" in aid of proof of what was then the matrimonial offence of adultery. In R v Hartley [1941] 1 KB 5 at 6-7, the English Court of Criminal Appeal said, of a complainant in a case of a sexual offence, that "where a person alleges that an offence such as that with which we are concerned here has been committed against him and that the occasion was not an isolated one, he is entitled to give evidence that the offence was indulged in habitually." The reasons why, and the circumstances in which, that is so must be examined in order to decide the present matters.

  3. In some Australian jurisdictions, there are statutory provisions governing these questions. The matters before the Court (two appeals and an application for special leave to appeal) come, however, from South Australia, where it is the common law that must be applied - see, for example, R v Nieterink (1999) 76 SASR 56. Since there is a question of the admissibility of evidence, the logical starting point is relevance.

    RELEVANCE AND PROOF

  4. Evidence is information which, according to certain governing general principles and more detailed rules, will be received by a court for the purpose of deciding issues of fact that arise for its decision. The issues in civil cases are defined by the pleadings or other corresponding procedure. They are determined by the principles of substantive law that apply to the dispute, and by choices made by the parties within the boundaries set by those principles. In a criminal trial of an indictable offence, the indictment identifies the alleged offence. The prosecution sets out to prove the elements of the offence, that is to say, the specific offence alleged to have been committed by the accused. The jury will be directed, as a matter of law, that for a verdict of guilty it is necessary to be satisfied beyond reasonable doubt of those elements - see Shepherd v The Queen (1990) 170 CLR 573 at 579-580[1]. The elements of the offence, to the extent to which they are disputed, identify the facts in issue, which may be refined by particulars[2]. Depending upon the way in which the prosecution seeks to prove its case, or the way in which the defence is conducted, it may appear, as a matter of fact, that an element of the offence charged will not be established beyond reasonable doubt unless some subsidiary fact, relevant to a fact in issue, is proved to that standard. However, the legal requirement as to onus and standard of proof is related to the elements of the offence charged. In some cases, there may be only one available path to a conclusion of guilt, but often that is not so. Jurors are commonly instructed that they may be selective in their approach to the evidence, and even in their approach to different parts of the evidence of the one witness.

  5. The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible[3]. Evidence that is not relevant is inadmissible; there is then no occasion to consider any more particular rule of exclusion. Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings[4]. That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability. The prosecution may set out to establish that an accused had a motive to commit an offence charged. Motive may rationally affect the assessment of the probability of the existence of one or more of the elements of an offence. Evidence that tends to establish motive, therefore, may rationally affect such assessment. If so, it is relevant. When the prosecution sets out to establish motive, that is often a step in the prosecution case that is not indispensable. If it is established, motive may support (sometimes powerfully) the prosecution case, but juries are often told that failure to establish motive does not mean the case must fail. The legal necessity is to establish beyond reasonable doubt the elements of the offence. What that entails as a matter of fact may depend upon the circumstances of the particular case. Some of the statements made in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 could have been interpreted as abrogating the fundamental legal principle, but what was there said was subsequently clarified in Shepherd v The Queen.

  6. Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. An example is some evidence given in R v Wickham, Unreported, New South Wales Court of Criminal Appeal, 17 December 1991. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was 14 years old. She said that her father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no protest. She behaved as though this was a common occurrence. She said that, in fact, it was a common occurrence. If she had not been permitted to say that, her evidence could have appeared hard to believe. To have put her evidence forward as though she were describing an isolated incident would have been misleading, and, it might be added, unfair. Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In R v Boardman [1975] AC 421 at 456 in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method.

  7. Evidence of uncharged acts in child sexual abuse cases may also be relevant because of a matter mentioned above, that is, motive. As both Deane J (B v The Queen (1992) 175 CLR 599 at 610) and McHugh J (KRM v The Queen (2001) 206 CLR 221 at 230 [24]) have said, evidence which tends to show that a father has treated a daughter as an object of sexual gratification may tend to show a motive for committing the offence charged. If it appears that a parent has a sexual desire for a child, then that may make more credible the child's allegation that a particular alleged sexual incident occurred.

  8. There may be little difficulty in establishing the relevance of uncharged acts, although that is by no means the end of the question of admissibility. Specifying the nature of the relevance may bear both upon admissibility and upon the appropriate directions to a jury. Words such as "relationship" and "propensity" may cover both aspects of potential relevance already mentioned, but they may cover more, and may require closer definition before their application to the circumstances of a given case. Evidence of a sexual interest of a father in a child is evidence of a certain kind of propensity, a kind of propensity that jurors may regard as bearing upon the probability that the testimony of the child as to a particular act is true.

  9. As to the potential use of uncharged acts to evaluate a complainant's evidence by furnishing an explanation for apparent lack of surprise, or protest, Gaudron J said, in Gipp v The Queen (1998) 194 CLR 106 at 113 [12], that evidence of general sexual abuse is relevant and admissible on that basis, but only if the conduct of the defence case raises such considerations. I regret that I am unable to agree. Questions of admissibility of a complainant's evidence of uncharged acts usually arise for decision either before the trial or during the evidence-in-chief of the complainant. There may be no relevant conduct of the defence case by reference to which a decision can be made. Furthermore, the conduct of the defence case may not be a fixed point of reference. It is important not to overlook the legitimate opportunism that may be involved in the conduct of a defence under an accusatorial system of trial. It is one thing to require a prosecutor to give particulars. It is another thing to bind defence counsel to a certain line of argument. It should also be remembered that jurors, in assessing probabilities, are not bound by the conduct of defence counsel. When jurors evaluate the evidence of a complainant they are not limited to considering arguments advanced by the lawyers. If the complainant's evidence concerning a charge were given as though it were an account of an isolated event, then regardless of the line taken by the defence it might create a false impression, and that impression could colour the jury's assessment of the evidence. In some cases, the possibility is too obvious to be ignored, regardless of the line adopted in defence. An example is provided by the evidence, in the first of these three matters, concerning the method of persuasion that the complainant was required to use in order to obtain permission to go shopping. If she had described the conduct involved in that transaction as if it were an isolated incident it might have sounded like fantasy. Jurors bring their ideas of normal behaviour to the assessment of probabilities. Trial judges and advocates cannot ignore that fact, and the law of evidence must take account of it.

  10. It is the tendency of evidence that determines its relevance. The trial judge decides whether evidence could rationally affect the jury's assessment of the probability of the existence of a fact in issue. The ultimate effect of the evidence is a question of fact to be decided by the jury.

  11. The kind of similar fact evidence in question, that is, a complainant's evidence of uncharged acts, even when received and used as evidence of motive, is unlikely to compel, as a matter of logic, a conclusion that the charged offence or offences occurred. To prove that a person did something many times does not compel a conclusion that he did it again. However, it might make it more likely that sworn testimony that he did it again is true. People do not act in accordance with all their inclinations at every opportunity, but proof of a person's inclinations may provide strong support for direct testimony as to that person's conduct. Decisions as to the relevance of evidence are made by asking how, if accepted, it bears on the assessment of the probability of a fact in issue. Assessments of probability are rarely the subject of syllogistic reasoning.

    EXCLUSION

  12. Whatever the purpose for which similar fact evidence is adduced, it has an effect which the law regards as capable of providing a good reason for excluding it: if accepted, it shows a disposition or tendency to engage in crime or other discreditable conduct. If that is all it shows, and the prosecution adduces the evidence for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, then the law excludes such evidence as a matter of fundamental principle: Makin v Attorney-General for New South Wales [1894] AC 57 at 65. The purpose just described is often referred to as propensity, although that itself is ambiguous. The reason for the exclusion is not the irrelevance of propensity, but its prejudicial effect. In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be part of prejudicial effect. It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against.

  13. In addition to the possibility of prejudice just mentioned, which is common to most similar fact evidence, there is a further prejudicial effect of the kind of similar fact evidence with which we are presently concerned, that is, a complainant's evidence of uncharged acts. Typically, as in the present matters, the uncharged acts will be disputed, and sometimes the only evidence of them will be that of the complainant. The form in which the evidence emerges may create a serious risk of unfairness. It may range from a general assertion that conduct similar to that the subject of the charges had occurred on other occasions, perhaps over many years, to a detailed account of other specific acts. The accused is on trial for the charged offences. He may seek to deal with the charges by obtaining particulars, and testing the complainant's evidence by all available forensic methods. His capacity similarly to test the evidence of the uncharged acts may be limited. The adversarial process by which charges are laid, particularised, and contested may be ill-adapted to an investigation of these other allegations. This problem is not limited to a complainant's evidence of uncharged acts in sexual abuse cases. It may arise in other forms of similar fact evidence where the alleged facts are disputed. Questions of form, as well as content, need to be taken into account.

  14. The common law excludes evidence if its probative value is outweighed by its prejudicial effect. Examples of prejudicial effect are given above. The concept of probative value involves relevance and weight. The probative value of evidence must be considered by reference to the purpose or purposes for which it is used. In Pfennig v The Queen (1995) 182 CLR 461 at 528, McHugh J pointed out that prejudicial effect and probative value are incommensurables. So, it might be said, are many other forms of competing considerations that judges routinely "weigh". A great deal of judicial and other decision-making involves forming a judgment about where the balance is to be struck between competing considerations that are not amenable to any fixed standard of comparison.

  15. To require a judgment as to what is just by taking into account probative value and prejudicial effect is the way in which the common law in England, Canada and New Zealand still deals with propensity evidence. The authorities before 1995 were discussed by this Court in Pfennig at 476-480. In Pfennig, the High Court accepted the same general principle, but refined its application to similar fact evidence in an attempt to ensure that what is to be applied is a rule of law, not a discretion, and that the rule of law provides an adequate response to the danger of unfair prejudice. In Pfennig the issue was identity. The truth, as distinct from the admissibility, of the similar fact or propensity evidence was not in dispute. It was a murder case. The accused was charged with abducting and murdering a young boy. The evidence in question showed that he had admitted abducting and indecently interfering with another young boy on a separate, subsequent occasion. The evidence also established that the accused met the murder victim shortly before the victim disappeared. When the pattern of similarity, underlying unity or "signature" common to both incidents was taken into account, the later incident was cogent, circumstantial evidence pointing to the accused's guilt of murder of the first boy - see (1995) 182 CLR 461 at 488-489. The propensity revealed by the second incident was used as circumstantial evidence in relation to the first incident.

  16. The plurality judgment, of Mason CJ, Deane and Dawson JJ, accepted that the underlying necessity was to make a judgment about probative value and prejudicial effect. They quoted what was said by Lord Cross of Chelsea in Boardman at 457:

    The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it.

  17. They also quoted Lord Mackay of Clashfern LC who said, in Director of Public Prosecutions v P [1991] 2 AC 447 at 460:

    [T]he essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.

  18. However, accepting that underlying principle, the plurality judgment went on to formulate a more specific test, which had its origin in the use of circumstantial evidence to convict. It should be remembered that the case in Pfennig was entirely circumstantial, and the (undisputed) evidence of propensity formed part of the circumstances. It revealed a propensity to abduct young boys for sexual purposes, a propensity which, when added to the other circumstances, was held to be conclusive of guilt of murder. Without the circumstance of propensity, the other circumstances were inconclusive. As noted above, other evidence in the case showed that the accused met the victim at or about the time of his disappearance. The propensity evidence showed that the accused was a child molester. It was thought to be very unlikely that there were two child molesters in the particular area at the time, and that the other one also had met the victim. This, it may be noted, involves certain societal assumptions, not syllogistic reasoning.

  19. The refinement of the general principle advanced in the plurality judgment in Pfennig was encapsulated in the following passage (CLR 461 at 482-483 (reference omitted)):

    Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.

  20. Since they had earlier accepted Lord Cross of Chelsea's identification of the question as one concerning the value of the similar fact evidence taken together with the other evidence, their Honours must have been speaking of "the evidence" as the similar fact evidence taken together with the other evidence: Phillips v The Queen (2006) 225 CLR 303. That, indeed, is the way their reasoning in relation to the case before them proceeded. If there were any uncertainty as to what their Honours meant, the surest guide to their meaning is to be found in the way they applied it to the facts.

  21. An earlier passage in the plurality judgment stated - (1995) 182 CLR 461 at 481-482 (reference omitted):

    In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.

    The reference to "its having some innocent explanation" was elliptical. The question was whether, when the propensity evidence was taken into account, there was no reasonable view of the totality of the evidence other than as supporting, with the degree of strength described in other passages, an inference that the accused was guilty of murder.

  22. McHugh J criticised the reasoning in the plurality judgment, saying that the test propounded was impossible to relate to many well-known cases, including similar fact evidence in sexual offences. He distinguished between cases where the use of the evidence was for a reason other than the accused's propensity and cases where the prosecution relied on propensity reasoning. Cases in the first category, he said, such as cases where evidence of relationship simply explains other evidence that directly implicates the accused, could not be subject to the "no rational explanation" test. The correctness of that observation seems to have been assumed in Gipp v The Queen (1998) 194 CLR 106, as McHugh J pointed out in KRM v The Queen (2001) 206 CLR 221 at 228-233 [20]- [31]. In any event, there is no logical answer to this point. Pfennig was not a case about evidence that happened to reveal propensity; it was a case about the use of the fact of propensity as circumstantial evidence in proof of the offence charged. The use of propensity as circumstantial evidence was the key to the formulation of the refined test. What was said in Pfennig must be understood in its context.

  23. There are commonplace examples of admissible evidence that reveals a criminal tendency, or discreditable behaviour, but that is not tested by reference to what might be described as the Pfennig refinement of the general principle concerning probative value and prejudicial effect. The most obvious example is evidence of bad character that is received to contradict evidence of good character. There are also examples of admissible evidence of motive which reveals criminal acts but has nothing to do with propensity reasoning. Suppose D is charged with the murder of X. Suppose the prosecution sets out to prove motive, the alleged motive being that X was blackmailing D because X had became aware that D had engaged in criminal or other discreditable conduct. Evidence that D, to the knowledge of X, had engaged in such conduct would be relevant, as supporting the alleged motive, but the propensity revealed by such conduct may be completely irrelevant.

  24. The Pfennig refinement upon the general principle as stated, for example, in Boardman does not supplant the general principle in all cases of evidence which reveals the commission of criminal offences other than the charged offences. Where evidence of uncharged acts is introduced for the common, and acceptable, purpose of explaining that a complainant, in giving an account of conduct the subject of a charge, is not purporting to describe an isolated event, so that the account of the event may properly be evaluated by the jury, the test to be applied in determining admissibility is whether the probative value of the evidence outweighs its prejudicial effect. Evidence may have probative value in the assistance it gives in assessing other evidence. What is sometimes called "relationship evidence" may have value in this way. So also may evidence of what are sometimes called res gestae. The evidence that was held to be admissible in O'Leary v The King (1946) 73 CLR 566, of similar acts prior to and after the events charged, helped to explain or make intelligible the course of conduct pursued - see also Martin v Osborne (1936) 55 CLR 367 at 375.

  25. In a sexual abuse case, a complainant's evidence of uncharged acts, admitted only for the purpose of explaining or making intelligible her account of the charged acts, or to show that she was not purporting to describe an isolated event where otherwise her account may appear implausible, need not offend rules against investigation of collateral matters or impermissible attempts to bolster a witness's credit. It is, however, subject to the general principle concerning probative value and prejudicial effect, and the possible potential unfairness resulting from both form and content earlier discussed may affect its admissibility.

  26. Evidence of uncharged acts has another potential use as evidence of motive. The form of particular propensity involved in a sexual interest of a parent in a child could be regarded as providing a motive for conduct of the kind alleged in the charge. This form of propensity reasoning might not be relied on, in which case it may be necessary for a trial judge to warn a jury against employing it. Where, however, it is pursued, then the Pfennig reasoning, that is, reasoning about propensity as a circumstantial fact making more likely the offence charged, is in point.

  27. Pfennig was a case about the legitimate use of propensity reasoning, and the probative value, in such a context, of the evidence of propensity. It expressed a test for deciding whether the evidence of propensity reached a certain level or standard of probative value. The concept of probative value is about assessment of probabilities, which includes the reasonableness of inferences. In deciding admissibility, the trial judge assesses the probative value of the evidence in question upon the assumption that it is accepted - Phillips v The Queen (2006) 225 CLR 303, and in the context of the other evidence. It is a test of admissibility of evidence, not a test of the reasonableness of a jury verdict. In the present matters, unlike Pfennig, there was direct testimony that the accused had engaged in the acts alleged in the charges. In each case, if the evidence of the complainant about the uncharged acts were accepted, when added to the other evidence, including the direct testimony, it would have eliminated any reasonable doubt that might be left by the other evidence. The observations of Hodgson JA in WRC (2002) 130 A Crim R 89 at 101-102 [26]- [29] are in point. The nature of the issues in each case was not such as to require a different conclusion. There may be cases in which the nature of the dispute about the complainant's testimony, considered as a whole, is such that acceptance of the evidence of the uncharged acts is inconclusive. These cases are not of that kind. In each case, the probative value of the evidence of uncharged acts would have satisfied the Pfennig standard. However, as will appear, the evidence was not left to the jury as evidence of motive, and warnings were given against propensity reasoning. In those circumstances, while the Pfennig refinement did not apply, it was still necessary to consider whether probative value was outweighed by prejudicial effect.

  28. One further observation should be made about prejudicial effect. The forms of prejudice earlier discussed are in some cases amenable to management by limiting the use to which evidence may be put, controlling the form in which it may be adduced, and giving suitable directions and warnings to juries. If a trial judge concludes that the risk of prejudice is such as to put it beyond reasonably effective management, then the evidence should be excluded. There may be cases in which fairness is best served by confining the evidence of uncharged acts to brief and general evidence that the occasion the subject of an alleged offence was not an isolated instance. In Gipp v The Queen (1998) 194 CLR 106 at 132 [75], McHugh and Hayne JJ referred to the possibility of a defence preference for evidence of sexual history that was given shortly and without detail. The circumstances of particular cases will vary, and the appropriate judicial response to the requirements of fairness cannot be anticipated by a general rule save that, as already mentioned, both form and content will require consideration.

    STANDARD OF PROOF

  29. It is the elements of the offence charged that, as a matter of law, must be proved beyond reasonable doubt. (I leave aside presently irrelevant cases where insanity or some other defence is raised.) If evidence of a fact relevant to a fact in issue is the only evidence of the fact in issue, or is an indispensable link in a chain of evidence necessary to prove guilt, then it will be necessary for a trial judge to direct a jury that the prosecution must establish the fact beyond reasonable doubt; generally, however, the law as to standard of proof applies to the elements of the offence, not particular facts. The decisions of this Court concerning corroboration in Doney v The Queen (1990) 171 CLR 207 at 211, and proof of lies as evidence of consciousness of guilt in Edwards v The Queen (1993) 178 CLR 193 at 210, illustrate the point. Trial judges commonly, and appropriately, direct juries in terms of their possible satisfaction of particular matters relied upon by the prosecution, without referring to a standard of proof in relation to each such matter. To do otherwise would risk error.

  30. Where evidence is adduced for the purpose of explaining a context or similarly assisting the evaluation of the evidence of a witness, no separate question of the standard of proof of such evidence arises. Thus, if a complainant, giving direct evidence of the facts which constitute the elements of the offence charged, says that it was not an isolated incident but part of a wider pattern of behaviour, and does so either generally or with specificity, no separate question of a standard of proof in relation to the latter evidence ordinarily would arise.

  31. There is no general principle that whenever, at a criminal trial, the prosecution sets out to prove, as a fact relevant to a fact in issue, that some criminal conduct occurred, that fact must be established beyond reasonable doubt. In the example earlier given, where certain behaviour by D is relied upon in support of an alleged motive on the part of D to murder X who was said to be blackmailing D, it would make no difference in principle whether the behaviour was criminal or whether it was otherwise discreditable. Unless it was indispensable in the sense earlier mentioned, it would not have to be proved beyond reasonable doubt. In the recent case of Washer v Western Australia (2007) 82 ALJR 33; 239 ALR 610, evidence was admitted to show that an accused, who was charged in connection with a certain drug importation, was in the business of drug dealing. This was circumstantial evidence relevant to the alleged intent to supply the drugs involved in the importation. It was not an indispensable fact; it was part of a web of circumstances. It did not have to be established beyond reasonable doubt, or at all.

  32. Where a complainant's evidence of uncharged acts is relied upon by the prosecution as evidence of motive in order to support the complainant's evidence of the charged acts, two considerations may arise. First, if that evidence is an indispensable step in reasoning towards guilt then it may be necessary and appropriate to give a direction about the standard of proof in respect of such evidence. Secondly, it may be unrealistic, in cases such as the present, to contemplate that any reasonable jury would differentiate between the reliability of the complainant's evidence as to the uncharged acts and the complainant's evidence as to the charged acts. That will not always be so. There may be cases where some parts of a complainant's evidence are corroborated and others are not, or where an accused's response to part of the evidence is different from the response to other parts. Generally speaking, however, the indispensable link case apart, it is ordinarily neither necessary nor appropriate for a trial judge to give separate directions about the standard of proof of uncharged acts.

  33. The views expressed by Doyle CJ in R v Nieterink (1999) 76 SASR 56, which were acted upon by the trial judges in these three matters, are consistent with what is said in the preceding paragraph.

    THE PRESENT MATTERS

  34. The facts and the issues in each matter are set out in the reasons of Hayne J and Heydon J.

  35. In HML v The Queen, the trial judge left the evidence of the uncharged acts to the jury, not as evidence of motive, but only as evidence of the context in which the complainant's evidence of the uncharged acts was to be evaluated. I have already referred to her evidence as to asking the accused for permission to go shopping and his response. The trial judge referred to the father's confidence to offend, and the complainant's lack of surprise or complaint. The judge gave warnings against the use of propensity reasoning. The evidence of the uncharged acts was admissible, and the directions were adequate. I agree, for the reasons given by Hayne J, that the action or inaction of the Victorian authorities in relation to the uncharged acts in Victoria was irrelevant: cf Washer v Western Australia (2007) 82 ALJR 33; 239 ALR 610.

  36. In SB v The Queen, the evidence in question was not the subject of objection at trial. Leave to amend the notice of appeal to raise the question of admissibility should be refused in accordance with the principles referred to in Crampton v The Queen (2000) 206 CLR 161. The trial judge told the jury that the evidence was potentially helpful in evaluating the complainant's evidence of the charged acts which "may otherwise appear to be unreal or not fully comprehensible." He directed the jury not to use propensity reasoning. The evidence was not received or used as evidence of motive. The directions involved no error or unfairness.

  37. In OAE v The Queen, the prosecution, as sometimes happens, charged the accused with the first and the last of a series of happenings. Presumably this is done because a complainant may have a clearer recollection of the first and the last such acts, unless there is something particularly memorable about the intervening occasions. Here again, the trial judge did not admit the evidence as evidence of motive, and warned the jury against propensity reasoning. The directions to the jury referred to the permissible use of the evidence only as establishing a context for the evidence of charged acts. The evidence was admissible, and the jury directions were sufficient. In particular, for the reasons given earlier, there was no occasion to tell the jury that they could not rely on the evidence in question unless they found it established beyond reasonable doubt.

    CONCLUSION

  38. In each of HML v The Queen and SB v The Queen the appeal should be dismissed. In OAE v The Queen, special leave to appeal should be granted but the appeal should be dismissed.

    Gummow J

  39. The appeals by HML and by SB were heard together and with the special leave application by OAE. Special leave should be granted and the appeal by OAE treated as having been heard instanter.

  40. All these appeals are brought from the South Australian Full Court sitting as the Court of Criminal Appeal. The issues of the law of evidence which have been argued in this Court turn upon the common law, with one qualification. This is the belated attempt, which should not succeed, made in oral argument on the appeal by HML to rely upon s 34I of the Evidence Act 1929 (SA).

  41. I agree with what is written by Hayne J respecting matters of general principle. In particular, I agree with what appears in his Honour's reasons under the heading "Pfennig v The Queen".

  42. I agree with the reasons given by Hayne J for the disposition of the appeals by SB and by OAE. With respect to the appeal by HML, my agreement has the reservation respecting the treatment of the laying of charges in Victoria which is developed by Kirby J in his reasons. I agree with what Kirby J has written on that aspect of the appeal by HML, including the application of the proviso. The upshot is that in this, as in the other appeals, I agree with the orders proposed by Hayne J.

    Kirby J

  43. Three proceedings are before this Court. Two are appeals, by special leave already granted, from orders of the Court of Criminal Appeal of South Australia: In R v H, ML [2006] SASC 240 and R v S, B [2006] SASC 319. The other is an application for special leave to appeal from orders of the same court: See R v O, AE (2007) 172 A Crim R 100. The application was directed to be heard with the appeals because of the similarity of some of the issues raised: OAE v The Queen [2007] HCATrans 473. I agree that special leave should be granted in the third matter.

  44. The appeals have been considered together because of uncertainties that have arisen in trial and intermediate courts in respect of evidence in criminal trials involving accusations of sexual offences committed against under-aged children, commonly by family members. In particular, the appeals present controversies relating to:

    1. The rulings to be made in such trials in respect of the relevance and admissibility of evidence of discreditable sexual conduct involving the accused, apart from that alleged in the specific charges brought by the prosecution; and

    2. The directions or warnings that should be given to a jury by a trial judge in such a trial, where such evidence is ruled admissible. Such directions or warnings might relate to:

      1. the potential uses of such evidence;

      2. the standard of proof to be applied by the jury in deciding whether or not they accept such evidence and whether they should use it in reasoning to their conclusion about the guilt of the accused of the offence(s) charged; and

      3. the dangers of propensity reasoning based upon such evidence.

  45. So much has been written about the foregoing questions in earlier decisions of this Court[5], and now in these proceedings, that I hesitate to add to the elaboration lest what I write ends up contributing to the uncertainties. Rulings on evidence of this type must often be made by trial judges on the run, in the course of the criminal trial. Of its nature, such a trial will often be fraught and emotional. In addition, trial judges face great burdens in framing their directions and warnings to juries in cases of the present kind. Such directions or warnings must be framed so as to be understood by a jury of ordinary Australian citizens who do not have the luxury of hours (still less months) of cogitation. Therefore, this is a case where, if at all possible, this Court should make a particular effort to speak with a clear voice.

  46. In so far as there are differences between the opinions expressed in the reasons of Gleeson CJ, Hayne J, Heydon J, Crennan J and Kiefel J, I prefer and endorse (as Gummow J does) the principles stated by Hayne J. I do so because I agree with Hayne J, for reasons that I will detail, about:

    1. the purposes for which, in trials of this character, evidence of "uncharged acts" may be admitted;

    2. the applicability to the admissibility of such evidence of the holding of this Court in Pfennig v The Queen (1995) 182 CLR 461; and

    3. the necessity, where such evidence is admitted, for the trial judge to instruct the jury that they must be satisfied beyond reasonable doubt about the truth of such evidence if they are to use it to reason towards guilt.

  47. In particular, I agree in what I take to be Hayne J's insistence upon conformity with what was said by this Court in Pfennig (observed, for example, in the approach of the Court of Appeal of Victoria in R v Vonarx [1999] 3 VR 618) in preference (where it is different) to the approach adopted by the Court of Criminal Appeal of South Australia in R v Nieterink (1999) 76 SASR 56 at 66 [48]-[49]. It was the reasoning in Nieterink that influenced the Court of Criminal Appeal of South Australia in deciding, in the ways that it did, the three appeals that are now before this Court.

  48. With one exception, I also agree with Hayne J about the proper application of the relevant principles to the present appeals. The exception relates to the exclusion, on grounds of relevance, of evidence that the appellant HML sought to tender concerning the then current state of criminal proceedings against him in Victoria. However, this error does not affect the outcome of that appeal. The "proviso" (Criminal Law Consolidation Act 1935 (SA), s 353(1)[6]) is applicable. HML's appeal should be dismissed.

  49. I will also offer some additional comments about the serious inadequacies in the directions given to the jury in the appeal of OAE, both as to the use that the jury in that case might make of "uncharged acts" as part of the "context" and as to the want, there, of a sufficiently clear indication that evidence of the uncharged acts had to be proved beyond reasonable doubt. I agree with Hayne J that the defect is not one to which the "proviso" applies. Alike with his Honour, I would allow OAE's appeal.

  50. In relation to the appeal of SB, I have nothing to add to what Hayne J has written. I agree with the reasons and conclusions of Hayne J (including on the application for leave to enlarge the grounds of appeal). It follows that that appeal should be dismissed.

  51. These reasons will therefore explain why:

    1. I agree with Hayne J as to the applicable general principles;

    2. I differ, in one respect, from Hayne J as to their application in the appeal of HML, but without dispositive consequences; and

    3. I agree with Hayne J as to the disposition of the appeal of OAE.

  52. The analysis in these reasons adopts the assumption, inherent in much appellate examination of jury decision-making, that members of a jury reach their conclusions by a process of deliberation from evidence to verdict by way of an accurate application of judicial directions on the law - cf Heydon J at [353], Kiefel J at [488]. Such empirical evidence as there is casts serious doubts upon such assumptions - see Zoneff v The Queen (2000) 200 CLR 234 at 260-261 [65]- [67]. See also Cush & Goodman-Delahunty, "The Influence of Limiting Instructions on Processing and Judgments of Emotionally Evocative Evidence", (2006) 13 Psychiatry, Psychology and Law 110 at 113. Indeed, psychological research applied to judicial or other decision-making, including investigations based on the cognitive reflection test, suggests the very large role played by intuition in such decisions. In such matters, the human brain has a tendency to make automatic, snap judgments - Guthrie, Rachlinski & Wistrich, "Blinking on the Bench: How Judges Decide Cases", (2007) 93 Cornell Law Review 1 at 19. However, in default of contrary argument, these reasons will continue to make the law's assumptions, however dubious they may be in scientific terms.

    THE FACTS AND LEGISLATION

    The facts

  53. The facts of each appeal are set out in considerable detail in other reasons. Those reasons disclose the relevant objections to, and rulings on, the evidence at trial, the grounds of appeal and dispositions in the Court of Criminal Appeal in each case, and the arguments advanced in this Court. It will be necessary for me to add a little more detail concerning the error in the trial of HML just mentioned. However, otherwise, I am content to rely on the detailed expositions by my colleagues.

    The legislation

  54. As Heydon J explains in a note to his reasons (at [288], fn 227), this Court's expression of the law in these appeals is substantially confined to those jurisdictions of Australia in which the common law rule stated in Pfennig survives. Other than in South Australia, the Northern Territory, and to some extent Queensland, the rule in Pfennig has been amended, either by the adoption of the Uniform Evidence Acts (see ss 97 and 98[7]) or by the enactment of particular State legislation[8]. Subject to any constitutionally protected principles of due process, it is competent for the Parliaments of Australia to regulate the substantive and evidentiary law that is in issue in these proceedings. No constitutional argument has been raised by any party.

  55. In several jurisdictions, including South Australia, an attempt has been made to address the issues arising in these proceedings by the creation of so-called "relationship crimes"[9] and by the enactment of special evidentiary rules for cases involving sexual offences. As explained in other reasons, none of these special legislative provisions is determinative of the present appeals.

    ADMISSIBILITY OF RELATIONSHIP EVIDENCE

    Factors favouring admission

  56. I accept that, as a matter of legal principle or policy, several considerations tend to support the reception of evidence by complainants of alleged acts of sexual abuse different from, and additional to, those identified in the charges preferred against the accused by the prosecution:

    1. Although criminal trials address specific charges alleged in an information or indictment, the experience of the courts shows that sexual abuse of young persons is often, or typically, manifested in multiple and repeated incidents over a period of time. It is commonly impracticable, or even impossible, to include them all among the formal charges. The repeated character of the events may render them individually unmemorable either to the complainant or to the accused. A court process directed to eliciting a truthful description of what has happened to a complainant will take account of such practical considerations;

    2. Where sexual assault cases are not prosecuted under the new provisions establishing "relationship crimes", a practice is often observed by prosecutors of charging the first, or earliest, alleged incident of a sexual offence remembered by the complainant and also the most recent incident that can be described - Gleeson CJ at [37]. Others may be included because of special features in the facts or surrounding circumstances which are said to trigger the memory of the complainant and to permit particularity. However, almost inevitably, and whatever the wishes and precautions of lawyers, evidence may emerge of other incidents not made the subject of charges. This may be due to factual links between such incidents and the matters charged (as was the case in the trial of HML; see Heydon J at [318]), or because such incidents are allegedly remembered whilst the complainant's evidence is being adduced. Alternatively, the complainant, unaware of (or impatient with) the conventions of the criminal trial, may assert that many other similar instances occurred, leaving it to the trial judge to deal with the admissibility of such evidence and with the directions that should then be given. Attempts to quarantine the charged acts may, in practice, be both artificial and futile;

    3. From the point of view of the complainant, and respecting his or her entitlement to provide a truthful version of what is recalled, it is important for legal procedure to facilitate, so far as basic principle permits, the giving of a "fair and coherent account" (White v The Queen [1999] 1 AC 210 at 217 cited Heydon J at [299]) of what has allegedly occurred resulting in the criminal prosecution (cf Crennan J at [474]-[475]);

    4. The law has an important obligation to protect truthful complainants about sexual abuse. It is an appreciation of the significance of this consideration that led Lord Hope of Craighead to observe in R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45 at 71 [55] that "the balance between the rights of the defendant and those of the complainant is in need of adjustment if [complainants] are to be given the protection under the law to which they are entitled against conduct which the law says is criminal conduct": See also DS v Her Majesty's Advocate [2007] UKPC D1 at [5]. This observation has particular force where the abuse has allegedly been suffered by children as a result of the conduct of family members who owe the child special duties of trust and protection;

    5. Self-evidently, sexual assault against children is a very serious crime both in terms of its incidence in our society and in its impact on the victim, the victim's family and the community. There is compelling evidence of historical "under-enforcement" in this area[10]. The increase in prosecutions for offences of the present kind observed by the courts in recent years is, in part, a reflection of changing community, police and prosecutorial attitudes. These developments ought not to be permitted to be frustrated by unjustifiably restrictive court procedures; and

    6. The retention of jury trial for most contested allegations of such offences in Australia suggests a continuing acceptance of the need to entrust decision-making in such cases to "the ordinary experiences of ordinary people": Doney v The Queen (1990) 171 CLR 207 at 214. Juries resolve disputed issues and distinguish false or unproved accusations from those which they consider to have been proved to the requisite standard by applying their collective experience of life and of their fellow human beings - cf R v Best [1998] 4 VR 603 at 611 per Callaway JA. In recent years, the House of Lords, in Director of Public Prosecutions v P [1991] 2 AC 447 and R v H [1995] 2 AC 596, has demonstrated a greater willingness to trust juries with sensitive evidence than, for example, was apparent in the earlier case of R v Boardman [1975] AC 421 (see Crennan J at [443]). Thus, Lord Griffiths, in the case of H at 613, suggested that a "less restrictive form" of the rules excluding relevant evidence was appropriate given today's "better educated and more literate juries". So far as the common law of Australia is concerned, the result may also be a greater willingness in this country to permit jury access to relevant but sensitive, and potentially prejudicial, evidence - cf Crennan J at [473]. The fact that potential prejudice may be susceptible of limitation through careful directions and warnings is an additional factor that tends to favour reposing greater trust in juries in cases such as the present.

    Factors favouring exclusion

  57. As against the foregoing considerations, a number of others need to be kept in mind:

    1. In general, criminal trials of serious offences in Australia observe an accusatorial form - see RPS v The Queen (2000) 199 CLR 620 at 632-633 [27]-[29], 653-654 [101]. See also Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24. As a matter of law, the accused is ordinarily entitled to put the prosecution to proof of its allegations. In the usual case, it is essential that an accused person should be informed in advance of the trial not just of the "legal nature of the offence with which he is charged but also of the particular act, manner or thing alleged as the foundation of the charge": Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J. In Australia, this has led to rules of law and practice requiring a high degree of specificity of accusations and of criminal charges - Walsh v Tattersall (1996) 188 CLR 77. See KBT (1997) 191 CLR 417 at 429. To the extent that uncharged accusations or generalised "relationship evidence" intrude upon such a trial, they have a tendency to impair the right of the accused to know in advance, and to prepare to test and to meet, the particular charges alleged. This, in turn, has the tendency to endanger a fundamental feature of the criminal trial;

    2. From the viewpoint of the accused, the foregoing elements of the criminal trial afford important protections. They permit the accused to prepare for the trial; to test the accusations; to assemble a defence; and (if so decided) to gather rebutting, alibi and other evidence. They also permit the accused to object to evidence as it is tendered where it is not relevant to the issues for trial, as those issues are defined by the information or the indictment, supplemented perhaps by particulars. To the extent that a complainant introduces other accusations and allegations that are not contained in the charges or particulars, serious prejudice may sometimes arise which it is difficult, or impossible, to cure on the run in the course of the trial;

    3. Although the foregoing features of the accusatorial trial are particularly important in common law countries, it is arguable that a clear delimitation of criminal accusations before the beginning of any trial is a universal requirement of international human rights law. Thus, Art 14 of the International Covenant on Civil and Political Rights states a number of basic rights by reference to the "determination of any criminal charge" against a person. The determination of a "criminal charge" apparently postulates a degree of particularity and notice to the person accused of the exact allegation that is made;

    4. Whilst proper attention must be addressed to the protection of complainants, so that they may place relevant testimony before the trial without artificial or irrational impediments, it is the accused, and not the complainant, who is on trial. Ordinarily, in cases involving allegations of repeated child sexual assault, the accused faces, if convicted, serious (commonly custodial) punishment. It is therefore the duty of courts, and of prosecutors, to ensure the fairness of the trial, especially so because accusations of criminal offences against children are specially likely to arouse feelings of prejudice and revulsion in the community which will normally be shared by jurors - cf De Jesus v The Queen (1986) 61 ALJR 1 at 3; 68 ALR 1 at 4-5;

    5. Uncontested evidence sometimes later proves that accusations earlier made to police about a sexual assault are false, resulting in the initial conviction of an innocent person - see R v Button [2001] QCA 133; Edwards, "Ten things about DNA contamination that lawyers should know", (2005) 29 Criminal Law Journal 71 at 73. Cases also arise where such accusations are withdrawn and disclaimed after the accused has been convicted - see eg W (1989) 44 A Crim R 363. It is not correct to assume that all such accusations are accurate and reliable; and

    6. Although criminal appeals are necessarily conducted on the assumption that the jury understand and observe directions given to them about the law (Gilbert v The Queen (2000) 201 CLR 414 at 420 [13]), there are risks, once certain evidence becomes known to the jury, that they may treat that evidence as disclosing a general disposition on the part of the accused to act as alleged in the charges. To the extent that the common law retreats from rules withholding particular evidence from the jury, and to the extent that the law permits the jury to receive and consider such evidence although not the subject of any charge, there may be a commensurate need to enlarge the judicial obligation to direct and warn the jury about the dangers of pure propensity reasoning.

    Conclusion on admissibility

  58. When all of the foregoing considerations of legal principle and policy are given their due weight, I am prepared to retreat from opinions that I earlier expressed in KBT v The Queen (1997) 191 CLR 417, Gipp v The Queen (1998) 194 CLR 106 and other cases as to the admissibility of propensity evidence, including "relationship evidence" and evidence of "uncharged acts".

  59. I defer to what Hayne J has written on these subjects at [102]-[133]. I do so because only Hayne J's approach in these appeals gives appropriate significance, in my view, to all of the considerations of principle and policy mentioned above. Thus, I agree that, in cases such as the present where sexual offences have been charged, "relationship evidence", including evidence about "uncharged acts", may be received as relevant to the charges against the accused provided such evidence meets the requirements of the test stated by this Court in Pfennig. Where that evidence relates to other offences, different from those that are the subject of the charges concerning the same accused and complainant, the Pfennig test will ordinarily apply to such a case.

  60. The wider foundations propounded for the admission of such evidence (such as to bolster the credibility of the complainant, or to provide evidence of the general "context") would not ordinarily meet the Pfennig standard. In my view, such evidence is not admissible simply to provide "background". If such a vague criterion were adopted, virtually any evidence of discreditable conduct, uncharged in the information or indictment, would arguably be relevant and admissible in such a trial, because every alleged crime has a "context". Such a rule would be destructive of the particularity of the accusatorial trial. It would potentially be most unfair to the accused. It would undermine the proper discipline required of prosecutors in framing accusations. It would be damaging to the jury's central function, namely to return verdicts on the specific charges presented rather than to condemn the accused as a "nasty" or "disreputable" person.

  61. Once the linchpin for admissibility of such evidence is accepted as being that stated in the test expressed in Pfennig, the foundation for the reception of "relationship evidence" and evidence of "uncharged acts" becomes clearer. Such evidence may only be admitted if relevant to a permitted step in reasoning towards the accused's guilt of the charges framed in the information or indictment. Once this is clear, the requirement for directions or warnings to the jury to apply the criminal standard of proof becomes plain. That course is justified whether one invokes a metaphor and classifies the "relationship evidence" or evidence of "uncharged acts" as "links in a chain" of reasoning to guilt of the charges brought (cf Shepherd v The Queen (1990) 170 CLR 573 at 579), or whether one views such evidence as "so intertwined with the charged acts" as to necessitate satisfaction to that standard (OAE (2007) 172 A Crim R 100 at 108 [38]). In any such case, "the trial judge must direct the jury that they must be satisfied that the uncharged acts have been proved beyond reasonable doubt": OAE (2007) 172 A Crim R 100 at 108 [38].

  62. Standing back from the mass of decisional authority mentioned in other reasons, much of it difficult to reconcile, the approach endorsed by Hayne J achieves, in my view, an appropriate adjustment of the competing considerations of legal principle and policy that I have identified. It departs, to some extent, from the strict particularity favoured by the accusatorial tradition. However, it acknowledges the need, where relevant, for a clear direction as to the standard of proof to be applied to uncharged acts in cases of this kind. As well, there will often be a need for a clear warning from the judge about the dangers of pure propensity reasoning, that is, reasoning from a conclusion that the accused is a bad type of person to the conclusion that he or she is guilty of the particular offences charged.

  63. In approaching the issues raised by these three appeals in jurisdictions where the common law applies unaffected by statutory modification, Australian judges should apply the principles expressed in the reasons of Hayne J. Specifically, for the reasons Hayne J has given, a trial judge should instruct a jury "that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt": See Hayne J at [247].

    APPLICATION OF PRINCIPLES IN HML v THE QUEEN: A QUESTION OF RELEVANCE

    A particular but relevant issue

  64. Questions of relevance can sometimes arise in cases involving accusations against the same accused of multiple sexual offences. An instance is Phillips v The Queen (2006) 225 CLR 303. There, this Court said at 311 [26] (footnote omitted):

    It is essential at the outset to identify the issues at the trial on which the similar fact evidence is tendered, for this is central to the identification of relevance, and to the assessment of probative force on which the admissibility of similar fact evidence depends.

  65. The decision in Phillips, and the way in which the issue of relevance arose in that case, have been criticised - Hamer, "Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious", (2007) 30 University of New South Wales Law Journal 609. It is neither necessary nor appropriate in these appeals to address the criticism. The circumstances in which the issues of relevance arose here were quite different. They were argued at trial in the case of HML. They were pressed on appeal, including in this Court. The particular point in issue is a small and discrete one. Because it is one upon which I depart from the conclusion of Hayne J, I will explain how it arises; why I disagree; and why the consequence is not ultimately determinative of the disposition.

    A point reserved at trial

  66. The prosecution case against HML was that, whilst the two charges contained in the information concerned sexual offences against his natural daughter that occurred in Adelaide in September/October 1999, other and different sexual misconduct had begun years earlier (and continued afterwards) during visits made by the complainant to her father, then living in Victoria - see Hayne J at [136]; Heydon J at [251].

  67. The prosecutor expressly opened to the jury with the fact that HML had been interviewed by Victoria Police "in relation to the allegations of what had been taking place in Victoria". The jury were told that they would "have an opportunity to see that interview played on a video player later in the trial". So indeed the jury did. On the prosecution case, the reference to the Victorian events was justified on the basis that they showed that the alleged offences in Adelaide:

    didn't just happen out of the blue; there had already been inappropriate behaviour toward her and indeed sexual offending continued afterward. Without knowing that, it might seem odd that the accused would suddenly commit the offences in a hotel in Adelaide. It puts the Adelaide offending into context .... [I]t demonstrates that the accused was someone who actually had a sexual interest in [the complainant]; he was sexually attracted to her. The evidence of the ongoing sexual conduct might explain the reasons for this offending. He offended against her because he found her sexually gratifying and that sexual interest in her continued over a number of years.

  68. Quite detailed evidence was then given in HML's trial, including by the complainant, about the sexual offences that allegedly occurred in Victoria. Those offences were said to have happened both before and after the charged (Adelaide) events. The only offences that were the subject of the trial in South Australia were those alleged to have happened in Adelaide.

  69. On an initial voir dire, counsel for HML had indicated that he wished to question Detective G J Beanland of Victoria Police, to be called in the prosecution case, as to "whether or not charges [had] been laid in Victoria". The prosecutor opposed this course on the basis that the answer would not be relevant to a fact in issue. In his submissions to the trial judge, counsel for HML explained:

    I would not be asking him as to why the charges didn't proceed. But if, as the prosecution's issues [suggest], the jury are going to be hearing about uncharged acts, then it should be very plain that that's exactly what they are, otherwise it would be unfair to the accused.

    In response, the prosecutor submitted that the admission of such evidence would encourage speculation, and open "a can of worms". The trial judge indicated that he was inclined to agree with the prosecutor, stating that " [t]here shouldn't be any questions to elicit the fact that nothing occurred in Victoria". However, the trial judge expressly left it open to counsel for HML to make further submissions on the issue.

  70. Thus it was that counsel for HML renewed his application to adduce the contested evidence when Detective Beanland was called to give evidence. However, following short argument, the trial judge refused the application. He stated what was, in effect, his conclusion on this point as follows:

    The fact that [HML] wasn't charged in Victoria is not probative of the fact that he was charged here or probative as to what the outcome of this proceeding might be. That's propensity reasoning at its worst .... I will be telling the jury that they are not to speculate and .... I am entitled to assume that they will do as I tell them.

  71. Thus, although Detective Beanland was permitted to give evidence that he had questioned HML in August 2003 at the Mount Gambier Police Station in South Australia, he was not allowed to tell the jury that, to the date of the trial in March 2006, no charges based on the alleged Victorian offending had been laid by police.

    Suggested irrelevance of evidence

  72. Other members of this Court have concluded that the trial judge's ruling was correct and that the evidence that trial counsel sought to adduce was rightly excluded as irrelevant - Gleeson CJ at [35]; Hayne J at [190]; Heydon J at [353]; Crennan J at [478]; Kiefel J at [515]. An identical conclusion was reached by the Court of Criminal Appeal - see HML at [12]-[13]. See Heydon J at [351]. With all respect to those of that view, I disagree.

    Reasons for relevance

  73. Evidence is relevant to an issue if the acceptance of it could bear on the demonstration of a matter in contention at the trial. It is not uncommon for courts to disagree over questions of relevance[11]. Judges must commonly reach and express their conclusions on contested questions of relevance quickly and intuitively. On this issue I certainly acknowledge the respect that is owed to the opinion of the trial judge, affirmed on appeal. However, for several reasons, I regard that conclusion as erroneous:

    1. Statements in the trial of HML about the Victorian allegations (and the serious criminal offences that those allegations suggested) were made in the prosecutor's opening to the jury. Evidence about those allegations was given in the complainant's testimony. The issue was revived in the prosecutor's closing address and in the judge's summing up. The allegations therefore constituted an important and repeated theme in the trial. They were deliberately introduced into the trial by the prosecution, allegedly to provide "context". Yet although (as this Court holds) evidence of them was receivable for that purpose, the ruling of the trial judge denied HML the opportunity that he sought to attempt to neutralise the Victorian allegations as best he could;

    2. The Victorian allegations related to alleged incidents both before and after the Adelaide visit. According to the complainant, HML, in Victoria, would place one or two fingers in her vagina in the morning, doing so "regularly", and would also kiss her goodnight, trying to insert his tongue into her mouth in an inappropriate and suggestive fashion. Allegedly, on at least one occasion after the Adelaide visit, HML penetrated his daughter's vagina with his penis and, separately, performed an act of cunnilingus upon her - Heydon J at [256]. Having regard to the time when these offences were alleged to have occurred in Victoria, the report about them to Victoria Police, the investigation of the complaints by those Police, the interview of HML by Detective Beanland at Mount Gambier (conducted in conjunction with South Australian Police), and the subsequent lapse of time, a jury would arguably have been entitled to assume that (in the ordinary course of events) a decision would have been made, one way or the other, on whether or not to prosecute the offences, or at least the most significant of them. From silence, the jury might conclude that HML had been charged, and perhaps was awaiting trial or had even been convicted upon them;

    3. The relevance of the alleged Victorian offences was clearly regarded as established. But if they were relevant, it was strongly arguable that the failure in the available time to prosecute such offences was also relevant. Fairness suggests that HML should have been afforded the chance to attempt (so far as he could) to deal with such potentially prejudicial, and effectively unanswerable, evidence and statements. The only means available to him to do so rested on the fact (undisputed in the absence of the jury) that no charges had been brought in Victoria. There was a distinct element of inequality in permitting the Victorian evidence to be led by the prosecution but precluding HML from establishing the current status of the accusations;

    4. The trial judge's direction to the jury that they should not "speculate" about the outcome of the Victorian allegations (which he incorrectly described in his charge as "offences") did not, in my view, neutralise the Victorian evidence. On the contrary, such a direction was almost bound to attract the jury's curiosity about the outcome, in consequence of the specific mention of it. Whilst it is true that a decision on the prosecution of HML in respect of the Victorian allegations depended on decisions by officials absent from the trial in South Australia, it would not have been difficult to frame a factual explanation to the jury to the effect that no Victorian charges had been brought; but that this did not prevent them being brought in the future; and that the jury should focus their attention strictly on the alleged Adelaide offences which were the only charges upon which the jury's verdicts were to be returned. When the "uncharged" Victorian acts were given such attention in the trial, they were clearly treated as relevant to the issues in some way. Basic fairness should then have led to acceptance of HML's submission and to permission to procure evidence on the issue from Detective Beanland. It is difficult to deny that HML's attempted response was relevant without accepting that the entire evidence of the Victorian allegations was irrelevant and should have been excluded on that basis. The one was an attempted qualification, albeit partial, of the other. Rejection of HML's application was, in my view, erroneous. The resulting error was only compounded by the direction that the judge then gave.

    Application of proviso

  74. It follows that I differ in my conclusion on this issue. The exclusion of the evidence which HML sought to tender on this issue amounted to a "miscarriage of justice". Prima facie it enlivens a right to have the jury's verdicts quashed and a retrial ordered.

  75. Nevertheless, under the "proviso" in South Australia it is necessary for a court, reaching such a conclusion, to proceed to consider for itself whether "no substantial miscarriage of justice" has "actually occurred". This familiar language (see Liberato (1985) 159 CLR 507 at 520 citing Mraz v The Queen (1955) 93 CLR 493 at 514; Weiss v The Queen (2005) 224 CLR 300) requires this Court either to express its own conclusion on the point or to remit the question to the Court of Criminal Appeal for its decision on the issue - cf Mahmood v Western Australia (2008) 82 ALJR 372 at 379 [31]; 241 ALR 606 at 614. Given the extensive consideration of the evidence by this Court, I consider that the decision on the application of the proviso can and should be made immediately.

  76. The submissions of HML at trial on this point could not have resulted in the complete exclusion of the evidence of the Victorian allegations from consideration by the jury. For the reasons already given, the jury properly had access to that evidence, being evidence of other offences admissible on the Pfennig test to demonstrate HML's sexual interest in the complainant.

  77. All that HML therefore lost by the incorrect ruling on the question his counsel propounded was the chance to present to the jury a factual integer indicating that no prosecutions had "yet" been brought in respect of any Victorian allegations. Had such evidence been adduced from Detective Beanland, it would have been necessary for the trial judge to qualify it by explaining to the jury that no one (including Detective Beanland) knew if, or whether, any such prosecution would, or would not, be brought by the Victorian prosecution authorities, not themselves members of the police force. The most that would have been added was a factual ingredient that would have made the instruction to the jury not to "speculate" appear more rational and understandable.

  78. Given the nature of the matters in issue in HML's trial, the absence of that integer is not a cause of a substantial miscarriage. Nor am I convinced that, in consequence of the omission, an actual miscarriage of justice has occurred. This issue could, and should, have been handled better. But in the context of the ultimate focus of the trial on the Adelaide offences, it is not necessary, on this ground, to set aside the convictions based on the jury's verdicts. Those convictions should stand.

    APPLICATION OF PRINCIPLES IN OAE v THE QUEEN: DIRECTION ON STANDARD OF PROOF

    Standard of proof: general principles

  79. In his reasons, Hayne J concludes at [106] (as I also would) that whether or not evidence of "uncharged" acts is admissible 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.

  80. The mistake involved in this approach is that, if it were endorsed, it would effectively allow any relevant discreditable facts to be tendered against an accused simply because such evidence threw some light on the "context" of the offences. The risks of unfairness inherent in such an approach are obvious. The purpose of adopting the more stringent approach set out in Pfennig is to obviate, or at least minimise, such risks in cases of the present kind.

  81. It is because the Pfennig approach is correct that, in relation to any "uncharged" acts (at least in cases of sexual offending), the jury must be charged that they have to be satisfied beyond reasonable doubt that the prosecution has proved the "intermediate facts" propounded as constituting an indispensable step on the way to an inference of guilt of the offences charged - see Hayne J at [196].

  82. Other members of this Court have concluded that the directions given to the jury in the trial of OAE were adequate and conformed to law. However, they come to their conclusions by different ways. Thus, Gleeson CJ would hold that, because the relevant evidence was provided for the explicit purpose of explaining "context", and not as comprising an "indispensable link" in proof of the elements of an offence charged, no separate treatment of the standard of proof was warranted. Heydon J (at [339], [376], [395]-[396]) considers that it is unnecessary to decide whether the criminal standard of proof has a wider application in cases such as the present, because whatever the case, the judges' summing up in each of the three appeals included a direction incorporating the criminal standard. This is so, notwithstanding that the ostensible purpose of these appeals was to settle that issue with an authoritative statement by this Court. Crennan J at [477] endorses a principle similar to that stated by Gleeson CJ, although she ultimately (at [483]) relies on the conclusion of Heydon J that directions incorporating the criminal standard were in fact given in the trial of OAE. It is apparent from the analysis of Kiefel J at [512]-[513] that her Honour considers that, because the relevant evidence was relied upon for a purpose other than "disclosing [OAE's] sexual interest" in the complainant (at [517]), a direction as to the criminal standard of proof was not required.

  83. I support the conclusion of Hayne J. It is necessary and desirable for this Court to resolve the issue concerning directions to be given on the standard of proof applicable to evidence of "uncharged acts" for the guidance of trial judges and intermediate courts still observing the common law in this respect. I would hold that wherever such evidence has been admitted under the Pfennig test and is propounded as relevant to a step in reasoning towards the accused's guilt of an offence charged, the jury must be told that they are to be satisfied beyond reasonable doubt that such evidence has been proved before they reason that the accused is guilty on the basis of it - Hayne J at [132], [244]. This is the essential quid pro quo for allowing such evidence to be placed before the jury at all. It is mandated by considerations of law but also of basic fairness, considered in the context of an accusatorial trial that still observes rules of particularity as to the offences charged.

    Defective direction in OAE

  84. I agree with Hayne J that, taking their directions as a whole, the trial judges in the cases of HML and SB made it adequately clear that the jury were to apply a criminal standard of proof in deciding whether or not to accept and use the evidence of "uncharged acts" relied on by the prosecution. In each of those cases, this conclusion hinges upon recognising the effectiveness of a generalised definition statement (to the effect that where the trial judge spoke of "proof" he meant to the criminal standard) as colouring later directions specific to the contested evidence. The use of such a statement passes muster (although only just, in my view) in the context of the jury charges given in the trials of HML and SB.

  85. Nevertheless, like Debelle J in dissent in the Court of Criminal Appeal, and alike with Hayne J at [245] and Gummow J at [42], I am of the view that the direction given to the jury in the trial of OAE was inadequate.

  86. As Heydon J notes at [395], the trial judge in the case of OAE told the jury, towards the beginning of his summing up, that:

    If, in the course of my summing up, I speak of matters being proved or being established to your satisfaction, or if I use some other expression relating to proof of matters in issue, then you will understand that I shall always mean proof beyond reasonable doubt.

  87. However, when the trial judge later turned to address what he described as "the evidence of the uncharged acts", he did not use any of these terms, or any terms analogous, to indicate that satisfaction to the criminal standard, as earlier described, was a prerequisite to making positive use of that evidence. It is true that he warned the jury that "you cannot convict the accused of any count contained in the information simply because you are satisfied that he committed one or more of these uncharged acts". But this was in the context of a negative direction, properly given, against pure propensity reasoning. As Debelle J concluded, when subsequently describing the "permissible use to be made of the uncharged acts", the trial judge made "no reference of any kind to the standard of proof of [those] acts": O, AE (2007) 172 A Crim R 100 at 108-109 [39] (emphasis added).

    Contrasting directions in three trials

  88. A contrast may be drawn with what was said by the respective judges in the trials of HML and SB. In the trial of HML, the judge said "I direct you that you may not act upon the evidence of the uncharged acts unless and until you are satisfied as to it" (emphasis added). This expressly picked up an earlier direction to the effect that "if I use words like .... 'satisfied' .... what I always mean is proved beyond reasonable doubt". Similarly, in the case of SB, the trial judge gave instructions to the jury as to how they could use the "uncharged acts" evidence admitted in that case if they were "satisfied that it is proved, or .... satisfied any of the [uncharged] acts referred to in [the complainant's] evidence are proved". The condition thus placed on use of the evidence was clearly referable to the trial judge's earlier statement that "when I use those words ['proved' and 'satisfied'], I mean proof or satisfaction beyond reasonable doubt". No similar link can be drawn between different parts of the trial judge's directions in the case of OAE. I agree with Debelle J, for the reasons that his Honour gave, that subsequent remarks made by the trial judge in connection with a Longman warning - see Longman v The Queen (1989) 168 CLR 79 - were inadequate, and indeed inapplicable, to cure this defect - O, AE at 110 [41].

    General statements about standard of proof

  89. Heydon J (with whom Crennan J at [483] agrees on this issue) also relies on other general statements made by the trial judge as to the issue of the standard of proof elsewhere in his summing up at [395]:

    The trial judge directed the jury about the duty of the prosecution to 'prove the charge and every ingredient of the charge beyond a reasonable doubt'. He also said that an 'accused person cannot be convicted of a crime unless the jury is satisfied of his guilt beyond a reasonable doubt'.

  90. In my respectful opinion, it is not a safe assumption that the jury would have taken such generalised directions as those described by Heydon J as indicating anything in particular when it came to the task of evaluating the evidence of the "uncharged acts". The lack of clarity in the trial judge's directions in this connection was compounded by the extreme vagueness of his instruction that the "only legitimate use" of the "uncharged acts" evidence was to "put the charged offences .... in their proper context": cf O, AE (2007) 172 A Crim R 100 at 109 [40]. Who can say, for instance, whether or not the jury would have taken evidence said to be available for the sole purpose of providing "context" as comprising an "ingredient of [one of] the charge[s]" obliging proof to the criminal standard? If the trial judge intended his initial and general directions on the matter of proof to infuse his later and particular directions on the "uncharged acts", the links made between them were no more than implicit and extremely tenuous. At the very least, they should have been repeated, amplified and made explicit.

  91. Heydon J then notes at [395]:

    The trial judge also said: 'You cannot convict the accused unless you are satisfied beyond a reasonable doubt about the truth and accuracy of her evidence.' In this passage he did not limit the 'evidence' of the complainant to that relating to the incidents underlying the counts charged.

  92. This proposition, however, is also questionable given that, in the same paragraph of his summing up, the trial judge indicated that "you cannot find [the accused] guilty of a charge unless you are satisfied beyond reasonable doubt that [the complainant] gave a truthful account and an accurate account in respect of the incident upon which the charge is based" (emphasis added). This may or may not be regarded as a qualification to the passage quoted by Heydon J. At the very least, it is unclear whether that passage speaks, in any meaningful sense, to the standard of proof with regard to the "uncharged acts". It cannot be assumed that the jury would have discerned any intended connection. To attribute such sophisticated reasoning to a jury is to indulge in an unconvincing fiction. The indeterminacy of the trial judge's later direction on the use of the "uncharged acts" evidence is a further source of difficulty. It leaves entirely ambiguous the degree to which information providing "context" ought to be regarded as integral to "the incident upon which the charge is based" (and therefore subject to the same standard of proof as other facts founding that charge).

    Adequate reservation at OAE's trial

  93. Finally, Heydon J at [396] points to an exchange between trial counsel for OAE and the trial judge, which took place at the conclusion of the summing up, as establishing that counsel considered that a proper direction as to the standard of proof had been given. That exchange, which I will reproduce in full, is recorded in the transcript as follows:

    [COUNSEL]:

    [I]n relation to the uncharged acts I may have missed your Honour's direction as to the standard of proof with respect to those acts. I would submit that the jury would need to be satisfied of the totality of those very vague allegations beyond reasonable doubt before they can use them in any contextual sense.

    HIS HONOUR:

    I disagree.

  94. Heydon J would take counsel's request for a direction to the jury that they must be satisfied "of the totality" of the uncharged acts beyond reasonable doubt as indicating his satisfaction that the jury had already been instructed that they must be satisfied that the individual uncharged acts had been proved to that standard, if they were to use them. However, it is not at all clear that counsel intended those words to colour the entirety of his request. The reference to the "totality" appears to be a request that each and every element of the evidence comprising the "very vague allegations" of uncharged acts should be subject to an express instruction to apply the criminal standard of proof. The natural implication of counsel's statement that he "may have missed" the direction as to the standard of proof was that he had not perceived that such a direction had been given at all, or at least given clearly. Because there was no significant argument on this point, and because the trial judge did not elaborate his reasons for refusing counsel's request, it would be unwise to read too much into the exchange.

  95. At this stage, this Court is at risk of relying on trifles to rebuff a point that was adequately reserved before the trial judge. As this Court and intermediate courts know only too well, in the highly charged circumstances of criminal trials, the problem for accused persons is to secure counsel who are vigilant enough to detect a possible error and forward enough to raise it for a ruling by the trial judge. Trial counsel sufficiently did this in the trial of OAE. And in any case, the contestable subjective belief of counsel at the trial is not determinative of whether an error in fact occurred, demanding appellate intervention. Inescapably, the responsibility of deciding that question falls on appellate judges whose touchstones in criminal appeals are legal accuracy and the prevention of miscarriages of justice.

  96. Ensuring the application of the correct standard of proof is fundamental to the proper conduct of a criminal trial. This Court should not encourage directions that invoke that standard only through implicit or indirect formulae linked to generalised statements as to the nature of "proof". Where such formulae are employed, terminological precision is required to ensure, at the very least, that the points at which the generalised definition is being referred to during the course of the summing up are adequately clear. Juries cannot reasonably be expected on their own initiative to make the kind of logical leap that is postulated to redress deficiencies of the kind evident in the directions in the trial of OAE.

    Conclusion: a serious omission

  97. Once it is accepted that the jury, in a case of this kind, are to be instructed that relationship and "contextual" evidence and evidence of uncharged acts, where admitted, must be established to the jury's satisfaction beyond reasonable doubt if it is to be accepted, it is necessary that an appropriate direction be given with clarity. It is dangerous for the instruction to be wrapped up in a general definition of the meaning of "proof". Whilst, in the setting of the entire charge, with some hesitations on my part, that course suffices to save the directions given by the trial judges in the cases of HML and SB, it is not adequate to sustain the directions in the case of OAE. Counsel at trial was correct to perceive and reserve the point. The trial judge erred in failing to clarify his directions.

  98. Because what is involved in the directions to the jury concerning OAE is an instruction on the standard of proof to be applied to the evidence, a fundamental matter, this is not an instance, inadequacy of direction being found, in which the "proviso" (Criminal Law Consolidation Act 1935 (SA), s 353(1)) might be applied. The primary rule in criminal appeals therefore applies. The appeal must be allowed and a retrial of OAE ordered.

    ORDERS

  99. In all three appeals, I agree in the orders proposed by Hayne J.

    Hayne J

    THE ISSUES

  100. An accused is charged with sexual offences against a complainant. Absence of consent is not an element of the offences charged. The complainant can give evidence of other sexual acts directed at the complainant by the accused. First, is that evidence relevant and admissible? Second, if admitted, what directions should the trial judge give about that evidence?

  101. The appellants in the first two matters (HML and SB), and the applicant for special leave to appeal in the third matter (OAE), seek to raise both of the questions just identified. The appellants in the first two matters, HML and SB, require leave to amend their grounds of appeal to raise the first question about reception of evidence of other sexual conduct. That leave should be granted in the case of HML, but refused in the case of SB.

    RELEVANCE AND ADMISSIBILITY

  102. It is neither necessary nor desirable to consider questions of the relevance or admissibility of evidence of this kind in a case where the only offence being tried is one in which absence of consent is an issue. What is said in these reasons is directed only to cases in which absence of consent is not an element of an offence being tried.

  103. The evidence, in the cases of HML and OAE, of other sexual acts directed at the complainant by the accused, which were not acts the subject of the charges being tried, was relevant. 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.

  104. The question of admissibility of the evidence of other sexual acts directed at the complainant by the accused is to be resolved by first recognising that the evidence, if accepted, proves acts of the accused which are not the subject of a charge being tried but which are at least discreditable to the accused. In many cases the evidence, if accepted, would show not just discreditable conduct, it would show the commission of other offences.

  105. Because the evidence shows other discreditable conduct, or in many cases the commission of other offences, it is generally inadmissible. The prosecution cannot "adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried": Makin v Attorney-General for New South Wales [1894] AC 57 at 65. But that rule is not absolute.

  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 (1995) 182 CLR 461. 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 (Phillips v The Queen (2006) 225 CLR 303 at 323-324 [63]), 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 at 483, 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 - Sutton v The Queen (1984) 152 CLR 528 at 564 per Dawson J; R v Vonarx [1999] 3 VR 618 at 623 [17]. 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 at 483 to the remarks of Dawson J in Sutton v The Queen (1984) 152 CLR 528 at 564 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: See also 

    • Hoch v The Queen (1988) 165 CLR 292 at 296; 

    • Harriman v The Queen (1989) 167 CLR 590 at 602.

  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.

  110. If a comparison between probative value and prejudicial effect must be undertaken, the probative value of evidence tendered to establish other sexual conduct which would constitute an offence by the accused against the complainant would work a disadvantage to the accused. It would work a disadvantage to the accused because it could constitute a step in reasoning towards guilt. But its admission would work no prejudice to the accused over and above what the evidence establishes.

  111. Evidence of other conduct which did not constitute any offence, but which it is alleged demonstrated the accused's sexual interest in the complainant (as was the case with HML), may present more difficult issues. It may be harder to decide whether, in the context of the prosecution case, there would be no reasonable view of that evidence consistent with innocence. Deciding whether the evidence, if accepted, demonstrated the accused's sexual interest in the complainant will, in some cases, turn upon the construction put on the conduct in question. That conduct may be equivocal. If interpreting that conduct as showing sexual interest depends upon the prior acceptance of other evidence of separate events demonstrating that interest, evidence of the conduct would not be admissible.

    Pfennig v The Queen

  112. Because the admissibility of evidence of the kind in question in the present cases is to be determined by applying the test stated in Pfennig, it is as well to say something more about that decision and about its application.

  113. Pfennig establishes the rule that governs the admission of evidence that will reveal an accused person's commission of discreditable acts other than those that are the subject of the charges being tried. The rule takes as its premise that evidence of other discreditable acts of the accused is ordinarily inadmissible. The foundation for the rule excluding evidence of other discreditable acts of an accused is that, despite judicial instruction to the contrary, there is a risk that the evidence will be used by the jury in ways that give undue weight to the other acts that are proved. That is why the exception to that general rule of exclusion is drawn as narrowly as it is by Pfennig. It is why Pfennig requires that evidence of other acts may be admitted only if it supports the inference that the accused is guilty of the offence charged, and the evidence of those other acts is open to no other, innocent, explanation. But it also follows from the considerations that have just been mentioned that the exclusionary rule is not to be circumvented by admitting the evidence but directing the jury to confine its uses.

  114. There are several points to make about attempts to divide the uses to which evidence of other discreditable acts of an accused may be put. The division suggested may be variously expressed, but its general nature is captured by expressions like "propensity", "disposition", or "tendency" on the one hand, and "context", "explanation", or "intelligibility" on the other. There are at least two reasons not to attempt any such division.

  115. First, it may greatly be doubted that a division of uses expressed in those or similar terms will provide any useful guidance to jurors. The meaning and application of the expressions is anything but readily apparent, even to lawyers.

  116. Secondly, and more fundamentally, the foundation of the general exclusionary rule is that uses of the evidence cannot be segregated in the manner suggested. The very risk to which the general rule of exclusion is directed is the risk that the evidence will be misused. Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig, is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.

  117. If the evidence of other discreditable acts does not meet the Pfennig test, it is not to be admitted. It is unnecessary then to consider any division of uses to which the evidence may be put. And if the evidence of other acts does meet the Pfennig test, it is neither necessary nor desirable to attempt a division of uses of the kind described earlier.

  118. In deciding the question of admissibility presented by Pfennig, the trial judge is not called on to decide whether the evidence which the prosecution intends to adduce does or does not establish the accused's guilt. In most cases, perhaps all, that inquiry could not be undertaken. To ask whether evidence proves guilt would not be possible because the trial judge will usually be required to decide disputed questions of admissibility before any, or at least all, of the evidence to be called by the prosecution has been adduced. That is why, as the Court pointed out in Phillips v The Queen (2006) 225 CLR 303 at 323-324 [63],

    the test [in Pfennig] is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged [cf the remarks of the Supreme Court of Canada in R v Handy [2002] 2 SCR 908 at 945-946].

    [emphasis added]

    Rather, as the Court went on to say at 324 [63] in Phillips, Pfennig requires the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence. And as thus appears from what was said in Phillips, the trial judge is not called upon to make some separate or sequential assessment of evidence to be led at the trial in which it is necessary or relevant to ask whether the evidence, with or without the material whose admissibility is being considered, would support a verdict of guilt. Rather, the determinative question is whether there is a reasonable view of the similar fact evidence which is consistent with innocence. And as explained earlier, in cases of the kind now under consideration (in which absence of consent is not an issue) there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant which would do other than support an inference that the accused is guilty of the offence being tried.

    JURY DIRECTIONS

  119. The directions that should be given where a complainant gives evidence of sexually improper conduct, other than the conduct which is the subject of the charges preferred against the accused, will vary from case to case. What follows in these reasons is not put forward as a model direction. It is not expressed in terms that are suitable to that purpose. Not all of the matters mentioned later as appropriate for consideration in framing suitable directions will find express reflection in what the jury are told. And, of course, there may be additional matters that should be reflected in the directions that are given.

  120. Further, and more fundamentally, any suggested forms of direction put forward as "standard" or "model" directions will very likely mislead if their content is not properly moulded to the particular issues that are presented by each particular case. Model directions are necessarily framed at a level of abstraction that divorces the model from the particular facts of, and issues in, any specific trial. That is why such directions must be moulded to take proper account of what has happened in the trial. That moulding will usually require either addition to or subtraction from the model, or both addition and subtraction.

  121. The fundamental propositions stated by the Court in Alford v Magee (1952) 85 CLR 437 at 466, which have since been referred to many times[12], must remain the guiding principles. 

    • First, the trial judge must decide what are the real issues in the particular case and tell the jury, in the light of the law, what those issues are.

    • Second, the trial judge must explain to the jury so much of the law as they need to know to decide the case and how it applies to the facts of the particular case.

  122. Neither purpose is adequately served by the bare recitation of forms of model directions. Not only are the real issues not identified for the jury, no sufficient explanation is given to the jury of how the relevant law applies to the facts of the particular case. But the particular facts and circumstances of these three cases reveal that it may be necessary for trial judges to consider at least the following matters in framing the directions to give to a jury about evidence of other sexual conduct of an accused directed at the complainant but which is not conduct the subject of charges being tried.

  123. First, framing appropriate directions self-evidently depends upon how the trial has proceeded. Accordingly, in most cases it will be desirable, before evidence is led, to ask the prosecutor to identify

    1. what evidence will be adduced which may demonstrate sexual conduct towards the complainant, other than the conduct founding the charges being tried, and

    2. how it is alleged the evidence is relevant.

    It will usually be necessary, and helpful, to have the prosecutor describe each step along the path (or paths) of reasoning from the intended proof of other sexual conduct which it is expected that the prosecutor will submit that the jury may follow. The evidence may be relevant for more than one reason.

  124. The kinds of use to which it is possible to put evidence of offences or other discreditable acts other than those being tried are indicated in r 404(b) of the United States Federal Rules of Evidence[13] with its reference to "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident". In 1994, the Federal Rules of Evidence were amended (Violent Crime Control and Law Enforcement Act of 1994) to make special provision (rr 413-415) governing evidence of similar crimes and similar acts in cases concerning sexual assault and child molestation. It is not necessary to examine those provisions. For the moment it is sufficient to confine attention to r 404(b) as indicating possible kinds of use of evidence of offences or other discreditable acts other than those being tried. It is as well to add, however, that it may be doubted that the list given in the rule is exhaustive (see, for example, Imwinkelried, Uncharged Misconduct Evidence, (1984)) and that, in any event, leading American commentators point out that the decision whether to admit the evidence "is not to be made simply by labeling the evidence": Wright & Graham, Federal Practice and Procedure, (1978), vol 22 at 538 5249.

  125. As the plurality reasons in Pfennig rightly pointed out (at 464-465 per Mason CJ, Deane and Dawson JJ):

    There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense.

    [emphasis added]

    It is because shorthand terms like "relationship evidence" are inexact, that the purpose or purposes for which it is sought to adduce the evidence will seldom be sufficiently expressed by simply using that or some other shorthand description. It is the identification of each step along the path of reasoning that is necessary and useful.

  126. Second, as is often the case in relation to disputed questions of admissibility of evidence at a criminal trial, comparisons between prejudicial effect and probative value may be invited when considering reception of the evidence of sexual conduct other than the offences being tried. In drawing such comparisons, the important consideration is what prejudice, distinct from what the evidence proves, the accused may suffer if the evidence is adduced. In this regard it is important to recall that in cases of the kinds now under consideration the other acts and events which it is sought to prove will seldom be of a kind or quality that is radically different from the conduct which is charged. Further, the evidence of other acts and events will often not have the specificity and particularity of evidence led about the charged acts. This lack of specificity will be unlikely to constitute prejudice to an accused of a kind that outweighs the probative value properly attributed to the evidence of other conduct.

  127. If it is submitted that a comparison must be made between the probative value and prejudicial effect of evidence of other conduct it would be rare that the comparison will be important in framing directions to the jury, but possible forms of prejudice that are identified, and are distinct from what the evidence proves, may inform consideration of what the jury should be told about use of the evidence.

  128. Third, if not by the end of the evidence, then certainly by the end of counsel's addresses, it will be apparent what use the parties have sought to make of the evidence of other sexual conduct. And in any event, the trial judge will then have to decide what are the real issues in the case and what is the law that the jury need to know to decide those issues. Both the relevance of the evidence of other events, as that relevance was identified at the outset of the trial, and any possible forms of prejudice that were said to follow from its admission, will very likely bear upon how the directions should be framed. And proper identification of the real issues in the case may mean that it is unnecessary to give any direction to the jury about some of the uses to which the evidence might be put (in particular its use in providing the context within which events the subject of charges are said to have occurred).

  129. Fourth, in framing directions to the jury about evidence of events of a sexual kind other than those that are the subject of charge it will seldom, if ever, be helpful to speak of "propensity" or "disposition". "Propensity" and "disposition" are words that jurors are not likely to find helpful. And as pointed out in Pfennig at 464-465, the evidence of other criminal acts or other discreditable conduct is propensity evidence. Further, it will usually be better not to describe the evidence of other events of a sexual kind as evidence of "uncharged acts". "Uncharged acts" suggests that what is described could have been the subject of charges. That may not be right. The conduct described may not be criminal; the description of the conduct may not be sufficiently specific to found a charge. Describing the events as "uncharged acts" may invite speculation about why no charges were laid.

  130. Fifth, the jury must be told to consider separately each charge preferred against the accused. The jury must be told to consider all of the evidence that is relevant to the charge under consideration. The jury must be told that they may find some evidence of a witness persuasive and other evidence not. And the jury must be told, therefore, that they must consider all of the evidence that the complainant gave and, if the accused gave evidence, all of his or her evidence, but that, like the evidence of every witness, they may accept or reject parts of the evidence each gave.

  131. Sixth, it may be appropriate, in some cases, to tell the jury that they do not have to decide whether the other sexual conduct occurred. That is, it may be appropriate to tell the jury that they may be persuaded of the accused's guilt of one or more charges even if they are unable to decide, or do not find it necessary to consider, whether any of that conduct occurred. Conversely, if they are persuaded that the other conduct did occur they may entertain a reasonable doubt of guilt in respect of any of the charges.

  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.

  133. But whether any of the other events happened, and if any did, whether their occurrence makes it more likely that, on a different occasion, the accused did what he is charged with doing, are matters for the jury. And even if the other events did happen, the conclusion that the accused did what is charged is not inevitable. The jury must always decide whether, having regard to all the evidence, they are persuaded beyond reasonable doubt that the charge they are considering has been proved.

    HML v The Queen

  134. HML was charged in the District Court of South Australia with two counts of unlawful sexual intercourse with a person under 12 years contrary to what was then s 49(1) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to have occurred between 27 September 1999 and 4 October 1999 at Adelaide and in the one case were said to be constituted by causing the complainant to perform an act of fellatio upon him and in the other by inserting his penis into her anus. At the time of the alleged offences the complainant was aged about nine. She was 15 at the time of the appellant's trial.

  135. The complainant was the appellant's daughter, but the relationship between complainant and appellant was not an element of the offences charged against him. The complainant's parents were separated from the time she was a baby. At the times material to the present matter the appellant lived in Victoria and the complainant lived in South Australia but visited the appellant from time to time. The offences were alleged to have taken place in an Adelaide hotel. The complainant had travelled to Adelaide with the appellant when the appellant went to Adelaide in connection with some surgery.

  136. On the prosecution case the offences charged were part of a long course of conduct by the appellant that started when the complainant was about seven years of age and finished when she was about 12. Many of the events which the complainant described in evidence occurred in Victoria and were not (and could not have been) the subject of prosecution in the courts of South Australia. Although Victoria Police investigated the complainant's allegations of offences committed in Victoria, charges were not brought against the appellant in that State.

  137. At trial, the appellant was convicted on both counts. By leave, he appealed to the Full Court of the Supreme Court of South Australia against the convictions. A number of grounds were advanced. The principal focus of his appeal to the Full Court was that, at trial, he should have been permitted to adduce evidence that he had not been charged with offences in Victoria. The Full Court (Nyland, Vanstone and White JJ: R v H, ML [2006] SASC 240) dismissed his appeal.

  138. By special leave, the appellant appealed to this Court. He maintained his contention that he should have been permitted to adduce evidence that no charges had been laid in Victoria and he alleged that the trial judge's directions given about police investigations into events in Victoria were inadequate. He further alleged that the Full Court should have held that the directions given by the trial judge "as to the use to which the jury could and could not use the uncharged acts were inadequate". In the course of the hearing of the appeal to this Court he sought leave to add additional grounds of appeal alleging that "the evidence of the uncharged acts" was inadmissible. The application for leave to amend was not opposed. It should be granted.

  139. It is convenient to deal first with the questions about admission of "the evidence of the uncharged acts" and to begin with the procedures that were followed in deciding its admissibility.

    EVIDENCE OF OTHER SEXUAL CONDUCT

  140. Section 285A of the Criminal Law Consolidation Act permits a court before which a person has been arraigned, if it thinks fit, to hear and determine "any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled". The relevant Rules of the District Court (District Court (Criminal and Miscellaneous) Rules 1992, r 9.01) required the giving of notice of objections to evidence that it was expected that the prosecution would lead and the appellant gave notice that he would object to evidence of uncharged acts.

  141. There was, therefore, argument before the jury was empanelled about the admissibility of evidence which the complainant's statements to police indicated she could give about other conduct of the appellant, of a sexual kind, directed towards her. There was no voir dire in relation to this evidence. Argument proceeded by reference only to the complainant's written statements to police.

  142. After hearing argument, the trial judge ruled that "the evidence can be led". No reasons were given for the ruling. It is necessary, therefore, to say something more about the parties' arguments.

  143. Trial counsel for the prosecution began her submissions by accepting that it was "difficult to follow" what the complainant was alleging had happened, and when it had happened. In part, perhaps in large part, this was because the complainant's statements appear to have exhibited uncertainty about when various events occurred. So, for example, one of her statements described an incident where the appellant got into the shower with her and rubbed his penis against her body, but the complainant said of that incident that she did not remember "when this was or how old I was". Yet it was plain that the complainant would, if permitted, give evidence to the effect that "most of the time" when she stayed with her father in Victoria "he would finger me, stick his tongue in my mouth, [and] sometimes when he was fingering me he would try and stick his penis in my bum".

    A SINGLE BODY OF MATERIAL?

  144. At the pre-trial hearing, the proposed evidence of other events was treated as a single body of material about "uncharged acts" which either was all to be admitted or was all to be rejected. This treatment of the matter leads to some difficulty in deciding the ambit of the objection. In particular, it is not clear whether the objection extended to evidence of all forms of sexual conduct allegedly directed at the complainant, regardless of whether that conduct would have constituted an offence. It will be necessary to return to this question.

  145. In other respects, treating the evidence of other conduct as a single body of material reflects the great practical difficulty that there may be in dividing that evidence into separate parts. The difficulty stems from the fact that the charged incidents necessarily take their place against a background formed by all of the sexual conduct of the accused towards the complainant. So, for example, in the present case, the complainant's evidence about the first count charged (the count alleging fellatio) was that she asked her father whether she could go shopping in Adelaide, that he had replied by saying that she could if she sucked his penis, and that she had complied. Her evidence about the second count (alleging anal penetration) was that the appellant had said immediately after the incident: "Why isn't it working? It's worked before." This evidence about the charged acts would probably have made little sense without reference to what had gone before. But it shows how difficult it may be to cut up an account of events of this kind and confine evidence to particular charged incidents.

  146. That difficulty was not explored in the courts below. The assumption which underpinned the pre-trial argument about admissibility was that the evidence of "uncharged acts" (as a whole) could be separated from the complainant's evidence about the matters charged.

    BASES FOR ADMISSION AT TRIAL

  147. Trial counsel for the prosecution submitted that there were several bases upon which the evidence of "uncharged acts" was relevant and admissible. Four were identified.

  148. First, it was said that the continuing course of conduct created the context in which the alleged offences occurred and that, without evidence of that context, "the jury would be left thinking what occurred in Adelaide just occurred out of the blue". The second basis was said to be that from the evidence the jury might conclude that the appellant was confident enough to offend against the complainant in the manner in which it was alleged he had in Adelaide and that it would explain why the complainant "simply .... submitted to that particular conduct". Thirdly, it was said that the evidence of uncharged acts before and after the events charged was capable of demonstrating that the appellant "was someone who had a sexual attraction for the complainant". Trial counsel for the prosecution submitted that this was different from "propensity-type reasoning" but that it did "tend to provide an explanation as to why it is that the offending in Adelaide may have occurred". Finally, trial counsel for the prosecution submitted that the evidence might explain why it was that the complainant did not make a complaint immediately about the offending which had taken place in Adelaide.

  149. Trial counsel for the appellant submitted that the evidence of other events was unnecessary for any of the purposes identified by trial counsel for the prosecution. But those submissions, though elaborated, did not distinctly deny the relevance of the evidence. Instead, emphasis was given to the imprecision of the proposed evidence.

  150. The course of argument about the admissibility of evidence about the appellant's other sexual conduct towards the complainant is explained by reference to what had been held by the Full Court of the Supreme Court of South Australia in R v Nieterink (1999) 76 SASR 56. In that case, Doyle CJ, with whose opinion the other members of the Court agreed, said at 72 [76] that the evidence of "uncharged acts" in issue in that case was admissible on a number of bases:

    First, it could explain how the first charged incident came about, because it showed what might be called a lead up to the first charged incident. It could also explain the lack of surprise on the part of [the complainant]. It could explain the confidence that the appellant might have had in repeating his conduct when committing each of the alleged offences. The submission of [the complainant] to him over a period of time would give him confidence that she would submit again. It might help to explain the fact that [the complainant] did not complain to her mother. The evidence could also establish a sexual attraction by the appellant towards [the complainant].

    It is evident that trial counsel for the prosecution in the present matter adopted the analysis reflected in this part of the reasons of Doyle CJ in Nieterink as founding admission of the disputed parts of the complainant's evidence. It will be necessary to return to that analysis.

    THE PROSECUTION CASE

  151. The evidence having been ruled admissible, trial counsel for the prosecution opened the case to the jury indicating that it was the prosecution case that "what happened in Adelaide was not just a one-off incident but that the [appellant] had in fact been engaged in a course of sexually inappropriate behaviour with respect to [the complainant] for a number of years, which took place both before and after that particular trip". Trial counsel for the prosecution concluded her opening by telling the jury what use she submitted could be made of the evidence of the other events of which the complainant would give evidence. As she had indicated in the course of the pre-trial hearing about admissibility of the evidence, four uses of the evidence were proposed: context, confidence to offend, sexual attraction, and explanation for delay in complaint.

  152. In examination-in-chief, the complainant was asked whether, before she went to Adelaide, and while staying with the appellant in Victoria, he had behaved in any inappropriate way towards her or in a way that made her feel uncomfortable. She gave evidence of his walking around the house naked, of his kissing her goodnight and trying to "stick his tongue in my mouth" and of his "regularly" getting into bed with her in the morning and digitally penetrating her vagina. She also gave evidence of his asking her to take her clothes off and do cartwheels while he filmed her.

  153. Counsel for the prosecution then asked the complainant some questions about g-string underwear. The complainant said that the appellant had bought her this underwear without her asking him to do so. In his evidence, the appellant did not dispute that he had bought the items, but he said that he had done so at the complainant's request. Both at trial and in this Court, a deal of emphasis was given to the complainant's evidence about these items. It was submitted that the evidence, if accepted by the jury, showed that the appellant had a sexual interest in his daughter. Giving these items to the complainant was not unlawful. It was not an "uncharged act" if that expression is understood as referring only to other conduct which, if proved, would constitute an offence.

  154. Argument in this Court proceeded on the premise that the pre-trial objection to evidence of uncharged acts extended to the evidence about underwear. Neither the transcript of the pre-trial argument nor the notice of objection to evidence made specific reference to this subject. Taken as a whole, the record of the proceedings at trial was consistent with the evidence having been adduced without objection. It is nonetheless useful to consider its relevance and admissibility in the course of considering those questions more generally.

    THE RELEVANCE OF OTHER SEXUAL CONDUCT

  155. It is essential to examine the question of relevance separately from the question of admissibility. Usually, the relevance of the evidence is readily demonstrated. Evidence showing that an accused had a sexual interest in the complainant is relevant at the trial of that accused for committing sexual offences against that complainant because it rationally affects the probability of the existence of a fact in issue (Martin v Osborne (1936) 55 CLR 367 at 375-376 per Dixon J; cf Evidence Act 1995 (Cth), s 55), namely, whether the charged acts occurred.

  156. Evidence that shows the accused had a sexual interest in the complainant may also be important in assessing the credibility and coherence of the complainant's evidence generally and, in particular, the account of the events that constitute the offences charged. But the relevance of the evidence of other sexual conduct or events lies in its proof of demonstrated sexual interest in the complainant. The relevance of such evidence in a particular case may or may not be sufficiently captured by describing it as evidence about the nature of the relationship between the complainant and the accused. To describe the evidence as "relationship evidence" or evidence of "guilty passion" is to assert the relevance of the evidence.

  157. Although the conclusion about relevance is a conclusion of fact, it is important to expose the steps in reasoning which show the relevance of the evidence. The other conduct described by the complainant in this matter might be divided into three - committing other sexual assaults on her, filming her, and buying the particular style of underwear. All these forms of conduct were tendered to show the expression of a sexual interest of the appellant in the complainant. That interest was said to have been demonstrated by translation of that interest into action, in some cases sexual acts of the kind which constituted the offences being tried.

  158. Demonstrating the appellant's sexual interest in the complainant would demonstrate his motive to act as the charges being tried alleged he had acted. Demonstrating that he had done acts of the kind charged on other occasions would make it more likely that he did the charged acts. The extent to which the conduct was repeated, and the temporal proximity of the other conduct to a charged act, would bear upon the probability of the occurrence of that charged act.

  159. The evidence was relevant. Was it admissible?

    ADMISSIBILITY

  160. The proposition for which Makin v Attorney-General for New South Wales [1894] AC 57 has so often been quoted, that evidence "merely" demonstrating disposition to crime is inadmissible, points strongly against the utility of argument about admissibility from a premise that has assigned one of the expressions "propensity" or "disposition" to the evidence in issue, without giving the closest attention to the meaning assigned to those words. In particular, as this Court's decision in Pfennig demonstrates, the use of these expressions must not be allowed to set up false dichotomies between evidence that establishes disposition or propensity and evidence that has some other use. Often evidence will not only reveal a disposition to commit criminal or other discreditable acts but also have other uses at trial. That is why, as Julius Stone pointed out 70 years ago (in "The Rule of Exclusion of Similar Fact Evidence: America", (1938) 51 Harvard Law Review 988, the relevant root principles are more likely to be found in comparisons of probative value and prejudicial effect than they are in the attribution of labels like "propensity" or "disposition": See also Stone, "The Rule of Exclusion of Similar Fact Evidence: England", (1933) 46 Harvard Law Review 954). But whether or not that is right, identifying evidence as showing "propensity" or "disposition" does not conclude an inquiry about the admissibility of that evidence.

  161. Understood as the expression of sexual interest in the complainant, all of the evidence of other conduct towards the complainant was discreditable to the appellant. Some of the acts that were not unlawful (such as buying the underwear) may or may not attract less opprobrium than conduct which would constitute an offence. But all of the conduct, whether it showed no more than the expression of sexual interest, or went further and demonstrated a willingness to use the complainant as the object of gratification of that interest, was evidence discreditable of the appellant. It was discreditable because of their relationship as parent and child.

  162. Because the evidence showed the commission of offences by the appellant or other discreditable acts on his part, its admissibility was to be determined by applying the test in Pfennig.

  163. Until now there may have remained some uncertainty about what test should be applied to decide the admissibility of evidence of other sexual acts or events directed by an accused to a complainant. The nature and extent of that uncertainty can be indicated by comparing the decision of the Full Court of the Supreme Court of South Australia in Nieterink with the decision of the Court of Appeal of Victoria in R v Vonarx [1999] 3 VR 618. The focus of debate in Nieterink was upon the several uses which have been identified earlier in these reasons as uses to which the evidence of other sexual conduct could be put: context, confidence to offend, sexual attraction, and explanation for delay in complaint. Because the evidence could be used in these various ways, it was held in Nieterink at 66 [48]-[49] that the evidence was admissible even if it did not meet the test stated in Pfennig.

  164. Three of the four uses identified in Nieterink as permissible uses of the evidence (context, confidence to offend, and explanation for delay in complaint) take their chief significance from their use in assessing the coherence and credibility of the complainant's evidence. If those were the only uses to which the evidence could be put, it may be doubted that it would be admissible. Each of these three uses, if they were the only uses to which the evidence could be put, might be said to deal only with collateral issues that should not be explored at trial - Attorney-General v Hitchcock (1847) 1 Ex 91 at 105-106 per Rolfe B [154 ER 38 at 44-45]. But as was recognised in Nieterink at 72-73 [83], the fourth identified use (proof of sexual attraction) could provide a step in reasoning towards guilt. And that is why, in Nieterink, it was held at 72-73 [83] that "to the extent that the evidence of uncharged acts were circumstantial evidence explaining [the complainant's] conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required" but that, if used as proof of sexual attraction, proof to that standard was required.

  165. By contrast, in Vonarx at 622 [13] it was held that the evidence of other sexual acts was led "for the purpose of proving an improper sexual relationship or guilty passion which existed between the accused and the victim, tending to make it more likely that the offence charged in the indictment was in fact committed" (emphasis added): See also

    • R v Pearce [1999] VSCA 221; [1999] 3 VR 287 at 297-298 [30];

    • R v Loguancio [2000] VSCA 33; (2000) 1 VR 235 at 239-240 [12];

    • R v BJC [2005] VSCA 154; (2005) 13 VR 407 at 415-418 [21]-[28].

    And admission of the evidence for this use was seen in Vonarx at 622-623 [11]-[17] as consistent with the proper application of the test in Pfennig.

  166. Subsequently, in KRM v The Queen (2001) 206 CLR 221 at 230-233 [24]- [31], McHugh J examined these issues in some detail and concluded (at 233 [31]) that "[u]ntil this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused".

  167. If there has been uncertainty about what test should be applied in determining whether evidence of other sexual conduct or events should be admitted, the uncertainty may have stemmed from a failure to differentiate sufficiently between questions of relevance and admissibility, and from using shorthand terms like "relationship", "guilty passion", "propensity" and "disposition" in ways that obscure more than they illuminate. It is not profitable, however, to examine further the extent or causes of that uncertainty.

  168. In considering questions of admissibility of the evidence of other conduct, it is important to recall that several counts of sexual offences against the one complainant may be joined in a single information or indictment and tried together. The charges are joined, and the information or indictment is not severed, because proof of the accused's commission of a sexual offence against the complainant on one occasion, may make it more likely that the accused committed another similar sexual offence against that complainant which is charged in the one information or indictment - Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1. Evidence of commission of one offence is relevant to and admissible in the trial of the other similar offence charged. Together, the offences charged constitute "a series of offences of the same or a similar character": Criminal Law Consolidation Act 1935 (SA), Sched 3, r 3.

  169. In the end, however, the admissibility of the evidence of sexual conduct other than that charged turns on the fact that the evidence shows conduct other than the charges being tried, that is illegal, or at least discreditable to the accused. It is because the evidence reveals illegal or discreditable conduct of the accused on occasions other than those giving rise to the charges, and is tendered, at least in part, as proof of a step in reasoning towards guilt, that the question of its admissibility is to be resolved by applying the test stated in Pfennig.

  170. As was noted in the reasons of the plurality in that case - (1995) 182 CLR 461 at 488 per Mason CJ, Deane and Dawson JJ:

    Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained.

    That is, evidence of criminal or discreditable conduct other than that charged may have an undue impact, adverse to the accused, on the minds of the jury over and above the impact that it may be expected to have if consideration were confined to its probative force - (1995) 182 CLR 461 at 487-488. And thus the plurality said (CLR at 485) that a trial judge, considering the admissibility of such evidence,

    must recognise that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence.

    [footnote omitted]

    But as pointed out in Phillips v The Queen (2006) 225 CLR 303 at 323-324 [63], due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case, and the test of admissibility of that evidence must be applied by the trial judge on certain assumptions. In particular, when considering admissibility, it must be assumed that the similar fact evidence would be accepted as true, and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.

    APPLYING PFENNIG

  171. When such a test is applied to evidence of sexual offences committed by an accused against the complainant (other than the offences being tried) the test stated in Pfennig will usually, if not invariably, be satisfied. Seldom, if ever, would evidence of the commission of generally similar sexual offences against the complainant other than those charged, when viewed in the context of the prosecution case, be consistent with innocence. Or, as the plurality reasons in Pfennig put the same point, "the objective improbability of its [the evidence in question] having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged" (at 481-482 by reference to Hoch v The Queen (1988) 165 CLR 292 at 294-295 per Mason CJ, Wilson and Gaudron JJ - emphasis added). If the language of propensity or disposition is to be adopted, it is "evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it" (Pfennig at 483 per Mason CJ, Deane and Dawson JJ) which is directly connected with the issues for decision in the instant case. It has that "specific connexion with or relation to the issues for decision in the subject case" (Pfennig at 483 per Mason CJ, Deane and Dawson JJ) because it shows the accused's willingness to use the complainant as the object of gratification of a sexual interest or attraction that is directed at the complainant.

  172. Applying the test stated in Pfennig to evidence of acts which do not constitute sexual offences, but are alleged to disclose the accused's sexual interest in the complainant, may be more difficult. The difficulty lies in deciding whether, and to what extent, the evidence does disclose sexual interest. The evidence tendered in this case about the appellant filming the complainant and buying a particular kind of underwear for her reveals at least some of the issues that will require examination in connection with evidence of that kind.

  173. Even if it is assumed that filming the complainant in the circumstances she described constituted no offence, the event, as the complainant described it, had such sexual overtones as to admit only of the conclusion that it demonstrated the appellant's sexual interest in her. By contrast, the evidence about the underwear was equivocal.

  174. At least in hindsight, the complainant saw the appellant's purchase of the underwear as demonstrating sexual interest in her. That view of the event was consistent with the complainant's account of the appellant's conduct generally. The evidence about the purchase of the underwear did not stand alone in the case. Its admissibility was to be judged in the context of the prosecution case and to be judged without knowing what explanation or answer the appellant would make to the evidence. The prosecution case was that the purchase was an objectively verifiable event which revealed sexual interest. (It was objectively verifiable in the sense that a photograph had been taken of two of the three items that were said to have been bought and the photograph was tendered in evidence.) In the context of the prosecution case, if the evidence bore the interpretation asserted, it was a step in proving that the appellant had committed the offences charged. But that step depended upon the interpretation given to the evidence of purchase and gift. And on the complainant's account of the event (an unsolicited gift following her inquiry about what the garments were) it would be open to the jury to interpret it as evidence of sexual interest.

  175. But that conclusion was not inevitable. It was not inevitable because the evidence revealed nothing more having been said about or done with the items. The evidence was, therefore, equivocal and the resolution of the equivocation necessarily depended upon proof of the other events described by the complainant. Evidence of the purchase of underwear, though relevant, was not admissible in proof of the appellant's sexual interest in the complainant.

  176. No objection having been made at trial to the reception of the evidence, presumably on the basis that it would provide a context for the complainant's account of events, there was no ruling about its admissibility. There was no wrong decision in this respect of a point of law at trial. In this appeal the question that then arises in relation to the evidence about the gift of underwear is confined to the sufficiency of the trial judge's directions about using this evidence and the other evidence of sexual conduct and events other than those charged.

    Gipp v The Queen

  177. The conclusions reached about the application of Pfennig to evidence of the kind in issue in this matter do not accord with the views expressed by Gaudron J in Gipp v The Queen (1998) 194 CLR 106 at 112-113 [11]- [12]; cf KRM v The Queen (2001) 206 CLR 221 at 231-233 [27]- [31] per McHugh J. In that case, Gaudron J concluded at 112 [11] that general evidence of sexual abuse of the complainant on occasions other than those charged did not have "that special probative value which renders evidence admissible as 'similar fact' or 'propensity' evidence" and suggested (at 113 [12]) that evidence of sexual abuse on other occasions to explain lack of surprise or failure to complain was admissible only if the defence made either an issue in the case. It is necessary to deal with each of these points.

  178. First, the "special probative value", which renders admissible the evidence of other sexual conduct which, if proved, would constitute one or more offences committed by the accused against the complainant, lies in the identity of parties. The central question in the trial is whether the accused committed the charged sexual act or acts. Questions of consent do not arise because absence of consent is not an element of the offence or offences. If accepted, the evidence of other sexual acts would show the commission of other generally similar offences. But if accepted, the evidence would demonstrate that this accused had used this complainant as the object of sexual gratification. It is the particularity of that conclusion which gives the evidence its "special probative value".

  179. Secondly, treating evidence of other sexual conduct or events as relating to a lack of surprise or failure to complain, and admissible only if the defence expressly raises such an issue, would inevitably lead to the fragmentation of a complainant's evidence. A complainant could give any evidence of other sexual conduct or events only after the accused had cross-examined in a way that raised the issue. Such fragmentation of the evidence would be very undesirable. But it is necessary to recognise and give due weight to more fundamental considerations about circumstantial proof.

    CONTEXT, COMPLETENESS, CIRCUMSTANTIAL PROOF

  180. A complainant's evidence of what happened on a particular occasion will often make little sense (or at least convey a very different picture) if evidence of the occasion in question is not set in its proper factual context. In cases where the complainant and accused are related by blood or marriage, it is not to be doubted that evidence of that relationship is relevant and admissible. It is relevant because it provides an important part of the context within which the events are said to have occurred, and without which the complainant's evidence would be incomplete. And at least in cases where the complainant alleges that the accused sexually assaulted the complainant before the events giving rise to the charges, the account of what happened on the charged occasions would be incomplete without relating what had gone before.

  181. But describing the evidence of other events as simply providing a factual "context" for, or "completing", the complainant's evidence about events that are charged may suggest that the evidence of other events lies only at the fringes of relevance, or that it is admitted as some exception to evidentiary rules that seek to limit the agitation of collateral issues - Attorney-General v Hitchcock (1847) 1 Ex 91 at 105-106 per Rolfe B [154 ER 38 at 44-45]. That is not right. The evidence of other conduct and events is tendered as circumstantial evidence of the kind described by Dixon J in Martin v Osborne (1936) 55 CLR 367 at 375. That is, "[t]he circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued": ibid at 375. And it is because it is circumstantial evidence of that kind that the test in Pfennig is to be applied. The evidence of other events and conduct is tendered in proof of the charged acts.

    CIRCULARITY

  182. The appellant submitted that to use the complainant's evidence of conduct, other than the conduct that was charged, as evidence of the appellant's sexual attraction towards the complainant would "inappropriately [elevate] one part of the complainant's testimony in support of an inference of guilt when that part has no higher status [than] the other evidence it seeks to prove true". There was, so it was submitted, "a circular reliability" in which the evidence of other acts "relies on itself for support, and on nothing else".

  183. It is right to observe that the evidence of the offences charged and the evidence of the appellant's other conduct all came from the complainant. It by no means follows, however, that the jury are invited to adopt circular reasoning. The jury must be told that they may accept parts of a witness's evidence and reject other parts. Some evidence of a witness may be found to be inaccurate because it is exaggerated; other evidence of the same witness may be found not to suffer from that or any other relevant defect.

  184. It was not essential for the jury to be persuaded of the complainant's account of other events before accepting her account of the events charged. It may well be that rejecting the account of other events would be regarded as putting in doubt the reliability of the account of the charged events. But that is a question for the jury to decide. Neither the existence of this possible differentiation between parts of the complainant's evidence nor the prosecution's invitation to accept the whole of her evidence bears upon either the relevance or admissibility of the evidence.

    A RELEVANT STATUTORY PROVISION?

  185. In the course of the oral argument of the appeal to this Court, reference was made to s 34I of the Evidence Act 1929 (SA). That section provided, so far as now relevant, that:

    (1)

    In proceedings in which a person is charged with a sexual offence, no question shall be asked or evidence admitted--

    ....

    (b)

    except with the leave of the judge, as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).

    (2)

    In deciding whether leave should be granted under subsection (1)(b), the judge shall give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection and shall not grant leave unless satisfied that the evidence in respect of which leave is sought--

    (a)

    is of substantial probative value;

    ....

    and that its admission is required in the interests of justice.

  186. No reference was made to this section in the proceedings at first instance, or on appeal to the Full Court. There having been no objection at trial to reception of the complainant's evidence of other sexual acts by the appellant, on the basis that this section was engaged, it is now too late to raise the matter as a ground of appeal and the appellant did not seek to do so.

  187. It is, therefore, not necessary to decide whether s 34I may be engaged in relation to evidence of the kind in issue in this appeal. It may be observed, however, that if that provision is engaged, satisfaction of the test in Pfennig would likely provide a basis for concluding that the evidence of other sexual acts "is of substantial probative value" (s 34I(2)(a)) and that to ask the complainant about those acts would not subject him or her to unnecessary distress, humiliation or embarrassment.

    NO CHARGES IN VICTORIA?

  188. For the reasons given earlier, apart from the evidence about the underwear, the complainant's evidence of other sexual conduct towards her was relevant and admissible in proof of the charged offences. Much of that evidence related to events in Victoria. And evidence was given at trial by a Detective Senior Constable of Victoria Police who had investigated those events of an interview he had conducted with the appellant.

  189. During the pre-trial hearing about admissibility of evidence, trial counsel for the appellant had submitted to the trial judge that he should be permitted to ask the Victoria Police officer whether charges had been laid in Victoria and elicit evidence that no charges had been laid. The trial judge ruled that that evidence, if given, would not be relevant and that to ask the question would encourage the jury to speculate. The appellant submitted, in this Court, that the trial judge's ruling was the wrong decision of a question of law.

  190. Evidence that no charges had been laid in Victoria was not relevant to any issue in the case. If given, that evidence made it neither more nor less probable that the Victorian events described by the complainant had occurred. As the trial judge's reference to speculation suggests, significance could be attached to the absence of charges only if it was known why charges had not been laid. A collateral inquiry of that kind was irrelevant.

    JURY DIRECTIONS

  191. The appellant's complaints in this Court about the directions given at trial centred upon two distinct aspects of the directions: first, what the jury were told about conduct in Victoria that had been investigated by Victoria Police; and, secondly, the directions given about the uses to which evidence of other sexual conduct could be put.

  192. The trial judge told the jury that the prosecution case depended entirely upon the evidence of the complainant and that there was no other evidence to support her evidence. Accordingly, he told the jury to "examine her evidence with careful scrutiny". Having described the evidence of "the sexual activity which is alleged by [the complainant], but which is not the subject of any separate counts on the information", the trial judge told the jury that all of those acts were said to have occurred in Victoria. His Honour went on to say that the jury knew "that these Victorian offences were investigated, but you do not know the outcome of that investigation" and that:

    You must not speculate about what that outcome may have been. Whatever may have occurred in Victoria, if, indeed, anything did, cannot in any way help you here. You must decide this matter on the evidence which you have heard and seen in this courtroom during this trial. Nothing from outside it may be used to decide if the onus of proof has been discharged. Any such information is not relevant, as it cannot be helpful to you in that task.

    The appellant contended, in this Court, that this direction was inadequate. That contention should be rejected. Once it was decided (correctly) that evidence showing that no charges had been laid in Victoria was irrelevant, there was nothing more that could be said to the jury than was said here.

    JURY DIRECTIONS - OTHER SEXUAL EVENTS - STANDARD OF PROOF

  193. The trial judge went on to discuss the evidence of other sexual events in a way which reflected what trial counsel for the prosecution had said to the jury about that subject when opening the case. And as pointed out earlier, that treatment of the subject owed much to what had been said in Nieterink at 72 [76]. Thus the trial judge told the jury that the evidence was led by the prosecution "so that you may have an understanding of what is said to have been the relationship between the accused and [the complainant] when the visit to Adelaide was undertaken"; that "[t]he further use of the evidence" was that it may show why it was that the appellant "was confident enough to ask for oral sex and then to penetrate [the complainant] in Adelaide"; that it may also show "why she acquiesced in Adelaide"; that it may also indicate that "both before and after the visit to Adelaide the [appellant] had an ongoing sexual attraction to [the complainant] and sought gratification for that attraction by his conduct"; and finally "that this inappropriate behaviour continued late into 2002 may go some way to explain why there was no earlier complaint". The trial judge then said:

    I direct you that you may not act upon the evidence of the uncharged acts unless and until you are satisfied as to it. Only then, if so satisfied of the truth of it, or of any part of it, may you use that evidence of which you are so satisfied when you consider the credibility of [the complainant] in relation to each count on the information and whether you are satisfied beyond reasonable doubt that either or both of them occurred.

    I must also tell you how you cannot use this evidence. You must not use this evidence, if you are satisfied about it, or any part of it, to reason that because of it the [appellant] is the type of person likely to have committed these offences. To so reason would be wrong and you must not do it. The fact that allegations are made about a number of occasions does not absolve you from the task of determining whether the charges themselves are made out.

    If you accept any of the evidence concerning the uncharged acts you may use that evidence when you consider [the complainant's] evidence as to the charges on the information and whether you are prepared to accept that evidence or any part of it.

  194. The appellant submitted that the directions just set out (the "other sexual conduct directions") were inadequate because the jury were not told what degree of satisfaction had to be reached. But at an earlier point in his directions the trial judge had said to the jury that:

    If, in what I am about to say to you, I speak of matters being proved to your satisfaction, or if I use words like 'proved' or 'satisfied' or 'established' or 'accepted' or any other sort of word, what I always mean is proved beyond reasonable doubt.

    Given that this particular instruction was given as part of the general directions given to the jury about burden and standard of proof there is no basis for thinking that what was said was not impressed on the minds of the jury. That being so the particular complaint made about the other sexual conduct directions, that the jury were not told not to act upon the evidence of other sexual conduct unless satisfied of it beyond reasonable doubt, was not made good.

  195. It is important, however, to go on to consider the respondent's submission that the direction was unduly favourable to the appellant because proof beyond reasonable doubt of other sexual conduct was not necessary. In this respect the respondent placed considerable emphasis upon what was said in Shepherd v The Queen (1990) 170 CLR 573 and the distinction drawn in that case (at 581 per Dawson J) between intermediate facts which are an indispensable step upon the way to an inference of guilt, and inferences drawn from a combination of facts, none of which viewed alone would support the inference.

  196. It was pointed out in Pfennig at 483 that the purpose of evidence of other discreditable or criminal conduct that is admitted at trial is to establish a step in the proof of the prosecution case; if the evidence is not capable of doing that, it is to be rejected as inadmissible. Because this is the basis for admitting the evidence (that the jury may use it as a step towards inferring guilt) the jury may use it in that way only if persuaded of its truth beyond reasonable doubt. The direction in this case about what standard of proof was to be applied was correct.

    JURY DIRECTIONS - THE USE OF EVIDENCE OF OTHER SEXUAL EVENTS

  197. It will be recalled that the trial judge concluded the other sexual conduct directions by speaking of the jury "act[ing] upon the evidence" of the other sexual events, and "us[ing] that evidence of which you are so satisfied when you consider the credibility of [the complainant] in relation to each count on the information". This direction picked up only some of the possible uses that the trial judge had told the jury that the prosecution sought to make of the evidence. It would have been understood as picking up those uses that were described earlier in these reasons as context, confidence to offend, and the absence of early complaint.

  198. The other sexual conduct directions did not refer, however, to the prosecution's contention that the other events demonstrated not only "an ongoing sexual attraction" to the complainant but also the willingness to give effect to that desire by conduct. Yet it is those conclusions that would found a step in the reasoning towards guilt of the charged offences and it was the availability of those conclusions that founded the admissibility of the evidence.

  199. Of course, the jury's assessment of the credibility of the complainant's evidence would have to take account of all of her testimony. The matters to which the judge pointed were arguments that were open to be made about the assessment of her credibility and they were arguments that had been made by the prosecution. But the central points to be addressed in the directions about other sexual events were how the evidence might and might not properly be used in determining whether the offences charged had been proved beyond reasonable doubt. This the directions did not do.

  200. As will be apparent from what has been said already, the directions about how the evidence of other sexual conduct and events might properly be used should have focused upon whether the evidence established, beyond reasonable doubt, that the appellant had a sexual interest in the complainant and had given effect to that desire by his actions. The manner of expressing that direction will, of course, depend upon the way the case has proceeded. In particular, the way in which the accused's sexual interest is described may depend upon the ways in which the parties have chosen to describe it. Words like "passion", "desire" or "attraction" have often been used to describe what moves the accused in a case like those now under consideration. Sometimes epithets like "guilty" or "illicit" or "unnatural" have been used to embellish the description. There is no one formula which must be used. As a general rule the use of embellishing epithets is neither helpful nor desirable. What is important is that the jury's attention is focused upon whether the evidence of other sexual conduct or events proves the accused had a sexual interest in the complainant and had carried that interest into effect.

    JURY DIRECTIONS - A MISCARRIAGE OF JUSTICE?

  201. In the particular context of this case, the failure to give the jury a direction about how the evidence might be used as a step towards reasoning to a guilty verdict did not establish the ground of appeal described in the common form criminal appeal provisions (Criminal Law Consolidation Act 1935 (SA), s 353(1)) as "on any ground there was a miscarriage of justice". The omission of this direction occasioned no miscarriage of justice for two reasons. 

    • First, the jury were directed that they might act upon the evidence of other sexual conduct and events only if satisfied of that evidence beyond reasonable doubt. 

    • Second, the jury were directed that "if so satisfied of the truth of it, or of any part of it" they were not "to reason that because of it the [appellant] is the type of person likely to have committed these offences". 

    This latter direction was evidently intended to guard against any form of propensity reasoning. As is apparent from what has been said earlier in these reasons, that was a direction that took away from the jury the consideration of that chain of reasoning identified in Pfennig as the basis for admission of evidence of this kind. But the chain of reasoning which the jury were forbidden to consider was reasoning towards guilt. That being so, the directions, taken as a whole, occasioned no miscarriage of justice.

  202. No ground of appeal being established, no question about the application of the proviso need be considered.

  203. The appeal should be dismissed.

    SB v The Queen

  204. SB was charged in the District Court of South Australia with three counts of indecent assault and two counts of incest. The offences were alleged to have occurred in 1983 and 1986. The first count, of indecent assault, identified the date of the offence as between 1 January 1983 and 31 December 1983. Two other counts of indecent assault, and one count of incest, were alleged to have occurred between 11 October 1983 and 17 October 1983. The last count, of incest, was alleged to have occurred between 1 October 1986 and 31 December 1986. The complainant was the appellant's daughter.

  205. The appellant pleaded not guilty to all counts but, after deliberating for about five hours, the jury, by majority, returned verdicts of guilty to all five counts. The appellant appealed to the Full Court of the Supreme Court of South Australia against his convictions. Six grounds of appeal were advanced, all relating to the judge's directions to the jury. The Full Court (Duggan, Sulan and David JJ - R v S, B [2006] SASC 319) dismissed the appeal.

  206. By special leave, the appellant appeals to this Court on the single ground that the Full Court erred "in not considering that the directions given by the trial Judge concerning the evidence of uncharged acts were inadequate".

  207. In the course of the hearing of the appeal to this Court, the appellant sought leave to amend his notice of appeal by adding grounds alleging that the Full Court erred in failing to find that "all or some of the evidence of the uncharged acts" was either inadmissible or "not admissible on any or all of the various bases adverted to by the Prosecutor". No objection was taken at trial to the reception of any of the evidence which it is now sought to say should not have been admitted. It is only in an exceptional case that this Court will give special leave to appeal from a decision of a Court of Criminal Appeal affirming a conviction when the point the applicant seeks to raise was not taken either at trial or in the Court of Criminal Appeal - Giannarelli v The Queen (1983) 154 CLR 212; Crampton v The Queen (2000) 206 CLR 161. This is not such a case.

    THE PROSECUTION CASE

  208. In opening the case to the jury, trial counsel for the prosecution told the jury that it was alleged that the appellant had "started to sexually abuse [the complainant], when she was in her first year at high school". Counsel said that the first incident that the complainant could recall was after dinner one night when the appellant exposed himself to her after he had had a shower. Counsel said that the appellant "did this to her on a number of occasions".

  209. Counsel went on to say that the appellant started to have the complainant help him at night on the rural property where they were living, going outside to check on the animals and put things away. Counsel continued:

    It was whilst they were doing the rounds around the house, that he first started to touch her and to kiss her. He started to kiss her on the lips and from there it progressed to touching, firstly on the outside of her clothing, and then underneath her clothing, in the area of her breasts and her vagina. The Crown alleges that he was, in fact, grooming her for what was to come later; that he was getting her ready for the sexual advances that he was to make to her at a later time.

    Counsel then told the jury what evidence it was expected that the complainant would give of the particular events giving rise to the charges against the appellant. In addition, however, trial counsel for the prosecution told the jury that the complainant would say that after the commission of the first offence charged (an offence of indecent assault) the appellant had given her a dildo and told her that "she should start to use it".

  210. It follows that in this case (like HML) the evidence of so-called "uncharged acts" was evidence of sexual conduct by the appellant directed at the complainant which in some respects was criminal, but others not. All of the evidence of the events other than those charged was, however, discreditable to the appellant.

    THE RELEVANCE ASSERTED AT TRIAL

  211. After the evidence in the case was complete, the trial judge asked trial counsel for the prosecution what she would say to the jury about the relevance of the complainant's evidence of other conduct of the appellant. Counsel said that the other events

    put the sexual activities in context; that they provide the starting point for the sexual contact that unfolds from there and without using the particular word of 'grooming' .... they are precursors to what comes later and put in context the behaviour that comes later.

    The trial judge responded by telling counsel that he would tell the jury that "they are not to rationalise from that evidence anything that would suggest that [the appellant is] guilty of the other offences, or that the [appellant] is the sort of person who would commit these offences" (emphasis added).

    JURY DIRECTIONS

  212. Ultimately, the trial judge directed the jury that the "evidence of other alleged criminal conduct" was "potentially helpful to you in evaluating [the complainant's] evidence". It might "better enable" the jury to assess her evidence. "The whole of the alleged course of events provides a context in which it is said that the charged acts occurred."

  213. The trial judge told the jury that the prosecution presented the evidence as "explaining the background against which the first offence charged came about" and the other offences which are alleged to have followed where the complainant's evidence "may otherwise appear to be unreal or not fully comprehensible". The trial judge concluded this section of the directions in the following terms:

    Now, those two discrete matters which I have mentioned are the only ways in which you are permitted to use the evidence of the uncharged acts which were stated by [the complainant] in her evidence. Having directed you on the permissible manner in which you may use the evidence, I now turn to direct you on how you cannot use the evidence.

    If you find proved that the [appellant] was involved in any of the uncharged acts I have already described, you must not reason that the [appellant] must have committed any of the sexual acts, the subject of the charges in the Information. That would be totally wrong. Such reasoning is not permissible.

    Furthermore, it would be wrong to conclude, if you find proved that the [appellant] engaged in any of the uncharged acts related by [the complainant] in her evidence, that the [appellant] is the sort of person who would be likely to commit the offences for which he is charged. Remember, it is the evidence presented in proof of each of the charges, which is the critical evidence in this Trial. The evidence of the uncharged acts has only been presented for the purpose of the permissible uses to which I have referred.

    Of course, the first step in the process is to determine whether you are satisfied that any of the uncharged acts have been proved before you can use any of them in the permitted ways I have described. I will, again, refer to this evidence, and what you should do in the course of evaluating it shortly.

    [emphasis added]

  214. As foreshadowed, the trial judge returned to the subject of "uncharged acts". He warned the jury of the need to scrutinise the complainant's evidence about these events with great care and that "it would be dangerous to act upon her evidence of any of the uncharged acts unless, bearing in mind the warning I have given you, you are satisfied of the truth and accuracy of the evidence". (At an earlier point in the directions, the trial judge had told the jury that when he spoke of the jury being "satisfied of something in respect of the Crown case" he meant "proof or satisfaction beyond reasonable doubt".)

  215. Taken as a whole, the trial judge's directions to the jury confined the jury's consideration of conduct and events other than those charged to using it for "evaluating" the complainant's evidence. The jury were directed that they could not use the evidence of other conduct and events to "reason that the [appellant] must have committed any of the sexual acts, the subject of the charges in the Information" or that he was "the sort of person who would be likely to commit the offences for which he is charged" (emphasis added).

    THE EFFECT OF THE DIRECTIONS

  216. By confining the jury's use of the evidence in this way, the trial judge denied the jury's use of it for purposes for which the evidence was both relevant and admissible in support of the prosecution case. In particular, the directions precluded the jury using the evidence of other conduct and events as circumstantial evidence which, if established beyond reasonable doubt, could be used as a step in the proof of commission of the charged acts.

  217. It may greatly be doubted that telling the jury that the evidence of other conduct and events might be helpful in "evaluating" the complainant's evidence provided any useful assistance or guidance to the jury. It neither identified any issue in the case nor told the jury what law they needed to know to resolve that issue.

  218. It may equally be doubted that telling the jury that the evidence explained the "background against which the first offence charged came about" told the jury anything that was not apparent from the evidence itself. But in assessing whether the directions occasioned any miscarriage of justice, chief weight must be given to the strength of the negative directions given by the trial judge.

  219. The directions about how the jury could not use the evidence require the conclusion that the uncertainties and ambiguities inherent in the directions about "evaluating" the complainant's evidence and providing "background" to the charged offences occasioned no miscarriage of justice.

  220. No ground of appeal being established, no question about the application of the proviso need be considered in this case.

  221. The appeal should be dismissed.

    OAE v The Queen

  222. OAE was charged in the District Court of South Australia with one count of indecent assault and one count of rape. A count of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act was charged as an alternative to the count of rape. The count of indecent assault was alleged to have occurred in 1999, when the complainant was aged 12. The count of rape, and the alternative count of unlawful sexual intercourse, alleged that the applicant had digitally penetrated the complainant when she was aged 16. The offence of digital penetration was alleged to have occurred between May and August 2003.

  223. At the time of the alleged offences, the complainant lived with her foster mother, a sister of the applicant. The complainant's foster mother and the applicant lived in separate houses on the same rural property. The applicant was a horse trainer and, at the times of the alleged offences, the complainant worked with the horses and around the stables.

    THE DISPUTED EVIDENCE

  224. The prosecution case at trial was that the charge of indecent assault was the first in a series of sexual assaults by the applicant on the complainant and that the alleged digital penetration in 2003 was the last of that series. Trial counsel for the applicant objected to the reception of any evidence of sexual conduct alleged to have occurred in the intervening period. Trial counsel for the prosecution submitted that, if the jury did not hear evidence of a history of sexual misconduct between the alleged indecent assault in 1999 and the incident of digital penetration in 2003, they would be left with the impression that the 2003 incident happened out of the blue.

  225. The trial judge ruled that the evidence was admissible holding first, that the evidence was more probative than prejudicial, secondly, that it was relevant to show the nature of the relationship between the applicant and the complainant, and thirdly, that it was relevant to show that the counts alleging events in 2003 "did not happen out of the blue". Whether, as trial counsel for the prosecution then urged, the evidence was also admissible for the purpose of showing "sexual attraction" or "sexual passion" was left for further debate in light of the complainant's evidence.

  226. The complainant's evidence of other sexual conduct was not precise. So, for example, when speaking about other occasions when the applicant had touched her, the complainant said "[i]t happened quite often and, yes, it all just kind of blurred into one". She said that the conduct she described occurred "[e]very couple of days" and that "[i]t basically continued, continued right up until I left when I was between 13 and 15". And although the complainant's evidence in relation to the events which were the subject of the charges against the applicant was more precise, her evidence of other sexual misconduct was given at a level of generality which could admit of no more precise answer than bare denial. So, for example, when asked whether the particular event of digital penetration which founded the alternative charges of rape or unlawful sexual intercourse "was the first time he'd ever done the act of inserting his fingers into your vagina", the complainant said that it was not the first time, that he had previously done it "[q]uite a few times", that she had "lost count" of the number of times he had done it, and that he may have done it "40, 50 times between from when I was 12 until I was 16".

    THE DECISION BELOW

  227. The jury returned a verdict of not guilty on count 1, the count of indecent assault, but a verdict of guilty on count 2, the count of rape.

  228. The applicant appealed to the Full Court of the Supreme Court of South Australia against his conviction. He submitted that the evidence of other sexual misconduct should not have been admitted and alleged that the trial judge should have directed the jury, but did not, that they could use the evidence of other sexual misconduct only if satisfied beyond reasonable doubt that those acts had occurred.

  229. By majority (Doyle CJ and Layton J; Debelle J dissenting - R v O, AE (2007) 172 A Crim R 100) the Full Court dismissed the appeal. All members of the Court agreed that the evidence of other sexual misconduct was admissible, but the Court divided about whether the directions to the jury would have been understood as requiring them to be satisfied of the occurrence of the other sexual misconduct beyond reasonable doubt before using that evidence. Further, Doyle CJ, with whose reasons Layton J agreed, said at ibid 108 [33] that "[i]t was not necessary for the Judge to direct the jury that they had to be satisfied beyond reasonable doubt of the course of conduct constituted by the uncharged acts". His Honour went on to say  at ibid 108 [34], however, that:

    It has been accepted in other cases that evidence of uncharged acts, evidence of the kind and quality led here, and for the purpose relied upon here, need not support a conclusion beyond reasonable doubt before it can be used. But the safer course is for the judge to tell the jury that they should be satisfied of the truth of the evidence, or something like that, even though that will suggest to the jury that this means satisfaction beyond reasonable doubt: see Nieterink at 72-73 [83], R v Kostaras (2002) 133 A Crim R 399 at 407 [51] and R v Sciberras (2003) 226 LSJS 473 at 482 [39]. That avoids introducing the complication of differing standards of proof.

  230. By contrast (at 108 [38]), Debelle J was of the view

    that where evidence of uncharged acts consists of allegations of repeated sexual misconduct which is so intertwined with the charged acts, the trial judge must direct the jury that they must be satisfied that the uncharged acts have been proved beyond reasonable doubt. In the particular circumstances of this case, it would have been sufficient if the jury was satisfied beyond reasonable doubt that the [applicant] had a sexual attraction for the complainant.

  231. The applicant now seeks special leave to appeal to this Court. The application for special leave was referred for argument as on appeal, at the same time as the argument of the appeals in HML and SB.

    ADMISSIBILITY

  232. The applicant's submission that the complainant's evidence of other sexual misconduct by the applicant in the period between the two events charged should not have been received should be rejected. As explained earlier in these reasons, evidence of other sexual misconduct was both relevant and admissible. Further, although the generality of the evidence to be given by the complainant was said, at first instance, to require close attention to whether the prejudicial effect of the evidence outweighed its probative value, it is not shown that the trial judge erred in rejecting the applicant's contention to that effect.

  233. An accused person faced with evidence of the generality which the complainant in this case gave about other sexual misconduct by the applicant is unable to meet the allegations with more than a bare denial. But when balancing probative value and prejudicial effect it is important to recognise the limits of the probative value of evidence when it is given at the level of generality of the evidence given by the complainant in this case. Her evidence was that the applicant had interfered with her sexually many times. She described what forms that interference took. She did not say that she could identify when these events occurred, and she did not say that she could give any accurate estimate of how often these events occurred. By contrast, she did give more particular evidence about the events that founded the charges preferred against the applicant.

  234. If the complainant's evidence of other sexual events and conduct was wholly accepted, it would show that the applicant had committed serious offences against her very many times. Those other offences were of the same kind as those for which the applicant was being tried. As explained earlier in these reasons, the frequency of commission of that other conduct would bear upon the likelihood of the applicant having committed the charged offences. Thus, if the complainant's evidence about other conduct was accepted, it could have constituted a step in reasoning towards guilt, there being no reasonable view of it which would be consistent with innocence. But it would be a step where it would be the probative value of the evidence that worked a disadvantage to the applicant. Its admission would work no prejudice to the applicant over and above what the evidence established.

  235. But in this case, these considerations must be put aside because of the directions the trial judge gave the jury.

    THE IMPUGNED DIRECTIONS

  236. The trial judge told the jury that it would be wrong to use the evidence of other sexual misconduct "as establishing a propensity or tendency on the part of the [applicant] to commit the charged offences". He went on to say:

    That does not mean that the evidence of the uncharged acts is irrelevant. The evidence is relevant. On the prosecution case, the uncharged acts show the nature of the relationship which existed between the [applicant] and [the complainant] during the four years leading up to the feed shed incident, which is the subject of the second and third counts.

    Without that evidence - without the evidence relating to the uncharged acts - the circumstances of the feed shed incident might appear quite artificial or unrealistic. It would have appeared that after committing the first offence the [applicant] - on the Crown case - did not sexually interfere with [the complainant] for another four years, though she attended his home on a daily basis.

    Putting it another way, it would have looked as if the feed shed incident had happened out of the blue, so to speak.

    So that is the permissible use to be made of the uncharged acts, ladies and gentlemen. The evidence is relevant to put the charged offences, and in particular counts 2 and 3, in their proper context, but that is the only legitimate use to be made of this evidence.

    I repeat, it would be wrong for you to reason - and you must not reason - that the [applicant] must be guilty of the charged acts simply because you happen to be satisfied that he committed one or more of the uncharged acts.

  237. The trial judge had, at an earlier stage in his directions, told the jury that if, in the course of the summing-up, he spoke of matters being "proved or being established to your satisfaction" then the jury were to understand that he always meant proof beyond reasonable doubt. But as Debelle J at 109 [39] rightly pointed out in the Full Court, "[t]his part of the direction contained no reference of any kind to the standard of proof of the uncharged acts". Rather, the trial judge told the jury that they could not reason in a particular way if satisfied that the applicant had committed "one or more of the uncharged acts"; the trial judge nowhere told the jury that the use he had identified as permitted was a use that could be made only if the jury were satisfied beyond reasonable doubt of some conclusion drawn from that evidence.

  238. It will be recalled that the trial judge told the jury that there was only one permissible use to which "the evidence relating to the uncharged acts" could be put - "to put the charged offences, and in particular counts 2 and 3, in their proper context". All other uses of the evidence were prohibited. In particular, the jury were told not to reason "that the [applicant] must be guilty of the charged acts simply because you happen to be satisfied that he committed one or more of the uncharged acts".

  239. In the particular circumstance of this case, it was not appropriate to deal with the complainant's evidence of other sexual misconduct on the footing that it disclosed the commission of identified, separate, acts. It did not. References to "one or more of the uncharged acts" were, therefore, inappropriate.

  240. Although use of the evidence of other sexual misconduct as showing sexual interest or attraction was mentioned after the pre-trial ruling about admissibility the point was not further agitated at the trial. Rather, as the passages quoted earlier from the trial judge's directions reveal, the evidence of other sexual misconduct was treated as going only to put the charged offences "in context".

  241. To say that the evidence of other conduct may be used to put the charged offences "in context" masks a fundamental ambiguity. The ambiguity is revealed by considering how a direction about the standard of proof of that other conduct would be framed.

  242. The generality of the complainant's evidence of other sexual misconduct made it difficult to frame a direction about the standard of proof. To speak, in only general terms, of the evidence that the complainant had given about other conduct would not specify sufficiently what conclusion the jury were being invited to consider. But the "context" that the other conduct could provide was to provide evidence of the applicant's sexual interest in the complainant and his willingness to give effect to that interest by doing one or more of the acts described by the complainant. And if that was the way the evidence of other conduct was to be used, the jury had to be satisfied beyond reasonable doubt that the evidence of the other conduct proved the applicant's sexual interest in the complainant and his willingness to give effect to it in the ways described by the complainant.

  243. That is why, in his reasons, Debelle J correctly spoke (at 108 [38]) of the allegations of other sexual misconduct as being so "intertwined" with the charged acts as to require a direction that the jury not act on the evidence of other sexual misconduct unless satisfied of it beyond reasonable doubt.

  244. As appears from what has been said earlier in these reasons, evidence of sexual conduct other than the offences charged is a form of circumstantial evidence. Because its relevance lies in the identity of the parties concerned in both the charged and the other conduct, it is inevitable that all of the evidence is "intertwined", at least to that extent. But evidence of other sexual conduct is not to be divided into categories according to the nature or extent of that intertwining. The evidence may not be admitted unless it meets the test in Pfennig. If it meets the test in Pfennig, it may, but need not, be used by the jury as a step in reasoning towards guilt. If it is used by the jury as a step in reasoning towards guilt, the jury must be satisfied beyond reasonable doubt of the premise for that chain of reasoning. As explained earlier, the premise for such reasoning will usually have to be spelled out in terms of demonstrated sexual interest and demonstrated desire or willingness to use the complainant as the object of gratification of that interest.

  245. The directions given in this case were deficient. It is not possible to say by reference only to the written record of the trial that the deficiency caused no substantial miscarriage of justice. Without seeing and hearing the witnesses it is not possible for an appellate court to conclude that the evidence adduced at the applicant's trial proved his guilt of the offences charged beyond reasonable doubt - Weiss v The Queen (2005) 224 CLR 300.

  246. The application for special leave should be granted, and the appeal treated as instituted and heard instanter and allowed. The orders of the Full Court of the Supreme Court of South Australia should be set aside and in their place there should be orders that 

    1. the appeal to that Court is allowed,

    2. the convictions quashed and

    3. a new trial had.

    CONCLUSION

  247. Although all members of the Court agree that evidence of other sexual conduct that has taken place between an accused and the complainant is relevant, the Court is divided in opinion about further questions that I consider then arise. The reasons of each member of the Court must be read as a whole. It is not appropriate for me to attempt to summarise the effect of the Court's reasons. It is important to recognise, however, that at least a majority of the Court - Gummow J at [41], Kirby J at [63], Kiefel J at [506] and these reasons at [132] - is of the opinion that "[i]n 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".

    Heydon J

  248. Before the Court are two appeals and an application for special leave to appeal. They relate to a field of controversy marked out by the overlap between two non-identical areas: "evidence of uncharged acts" and "relationship evidence"[14]. Each of the accused persons was a mature man who was convicted of sexual crimes against a young female relative after a jury trial in the District Court of South Australia. Each challenges an order of the Court of Criminal Appeal of South Australia dismissing his appeal against conviction. Counsel for each of the accused persons exposed some difficulties in the reasoning of the courts below. However, while special leave should be granted, the appeals must be dismissed for the following reasons.

    HML v THE QUEEN: THE BACKGROUND

  249. HML and his wife had a daughter on 21 July 1990, but separated while the daughter was still a baby. HML and his daughter then lost contact. The mother and daughter lived in Mount Gambier, South Australia. After some years, HML came to live in Drik Drik, Victoria, which can be reached from Mount Gambier by car in about 45 minutes. From time to time the daughter visited HML at Drik Drik on access visits.

    HML v THE QUEEN: THE TRIAL

  250. HML was charged with two counts of unlawful sexual intercourse with his daughter, a person under the age of 12 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA). Each offence was alleged to have occurred between 27 September and 4 October 1999. The daughter was then aged nine. The offences were alleged to have occurred during a visit HML was undertaking to Adelaide for the purpose of eye surgery. The first count charged fellatio and the second anal intercourse. The daughter alleged that on the morning on which the eye surgery was to take place, HML and his daughter were in their shared bedroom after breakfast. She said she wanted to have a look around and go shopping. He said that he would comply with her wishes if she carried out fellatio on him. She complied briefly, twice. On the morning of the following day, he had anal intercourse with her briefly. He then said: "Why isn't it working? It's worked before." She testified that she knew what he meant by that, because he had done it to her before.

  251. During 2003 the daughter's allegations came to the attention of the police. On 21 August 2003, HML was questioned at Mount Gambier by a Victorian detective and a South Australian detective about those allegations. Later that day the Victorian detective questioned him about other sexual incidents which allegedly took place in Victoria, some before and some after the alleged offences in Adelaide. HML has never been charged in relation to the conduct alleged in Victoria, and it will be described as "the uncharged acts".

  252. On 22 March 2006, after a trial presided over by Judge Anderson, a jury convicted HML on both counts. The daughter was then aged 15. An objection to her evidence about the uncharged acts was rejected by the trial judge.

    HML v THE QUEEN: THE COURT OF CRIMINAL APPEAL

  253. An appeal by HML to the Court of Criminal Appeal (Nyland, Vanstone and White JJ) was dismissed - R v H, ML [2006] SASC 240. HML took no point about the admissibility of the uncharged acts. He did complain that the trial judge erred in rejecting evidence that no charges had been laid in Victoria about the uncharged acts, leaving open the possibility that HML had been convicted of the uncharged acts. He also complained that the judge failed to direct the jury that they should not find that the uncharged acts had been committed unless satisfied beyond reasonable doubt.

    HML v THE QUEEN: THE APPEAL TO THIS COURT

  254. In this Court HML contended, in addition, that the jury had been inadequately directed about the uses to which the evidence of uncharged acts could be put. He also sought leave to amend the notice of appeal to challenge the admissibility of the uncharged acts. It is logical to begin with the last question.

    HML v THE QUEEN: ADMISSIBILITY OF THE UNCHARGED ACTS: THEIR NATURE

  255. Before the trial commenced counsel for HML applied for an order excluding evidence of the uncharged acts. Those uncharged acts were described in three statements by the daughter (dated 31 July 2003, 28 February 2006 and 10 March 2006), a statement by a female friend of the daughter (dated 30 August 2003) and a statement by a male friend of the daughter (dated 3 September 2003). The daughter had made complaints about her father's conduct to each of these friends. The debate about admissibility before the trial judge was conducted on the assumption that the daughter's evidence would correspond with the statements. The evidence she actually gave was somewhat more specific. Indeed HML submitted in this Court that even if the evidence were otherwise admissible, it had been given in unnecessary detail.

  256. The uncharged acts were of eight kinds.

    1. At least before the Adelaide visit, HML would walk around his house naked for the majority of each day unless he was going outside to work.

    2. Both before and after the Adelaide visit, HML, on kissing his daughter goodnight, would try to insert his tongue into her mouth.

    3. Both before and after the Adelaide visit, HML placed one or two fingers in his daughter's vagina "regularly", "most mornings", "some mornings" and "more than once".

    4. On one occasion, the time of which is not clear, HML offered his daughter a small toy to perform acrobatics and cartwheels naked, and filmed her doing this.

    5. Before the Adelaide visit, and once or perhaps twice after it, HML had anal intercourse with his daughter.

    6. On one occasion after the Adelaide visit, HML penetrated his daughter's vagina with his penis.

    7. After the Adelaide visit, HML performed an act of cunnilingus on his daughter.

    8. Either before or after the Adelaide visit, HML offered to buy for his daughter items of "the type of underwear known as G-strings", bought three of them and gave them to her.

  257. To call all of this conduct "uncharged acts" could be a misnomer, because HML contended that incidents (a), (d) and (h) were not necessarily crimes.

  258. HML gave evidence. Although this does not affect the admissibility of the uncharged acts evidence, he denied all of it, save that he admitted he occasionally went from his bedroom to the bathroom naked, and said that although he bought G-string underwear for his daughter, he did so at her request.

    HML v THE QUEEN: ADMISSIBILITY OF THE UNCHARGED ACTS: THE PROBLEM

  259. Where a child complains of a long course of sexual abuse, and the authorities decide to prosecute, difficulties can arise. It may be impossible to draft charges covering all the abuse - Johnson v Miller (1937) 59 CLR 467 at 489-490 per Dixon J:

    [A] defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence

    The complainant may be incapable of differentiating each incident sufficiently to satisfy this test. [See S v The Queen (1989) 168 CLR 266.] Even if it is possible to draft charges covering all the abuse, it may be undesirable to do so. It is therefore common to select only a relatively small number of incidents as the subject of charges. What is the status of those parts of the complainant's story which are not made the subject of charges? Are they admissible? If so, to establish what? How should the jury be directed? What is the standard of proof in relation to the uncharged acts? This appeal throws up difficulties of these kinds. They are difficulties which can be reduced where the legislature has created an offence of maintaining a sexual relationship with a child. Thus s 74 of the Criminal Law Consolidation Act 1935 (SA) provides in part[15]:

    (1)

    A person may be charged with and convicted of the offence of persistent sexual abuse of a child.

    (2)

    Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).

    (3)

    A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days.

    However, this provision was not employed in relation to the complaints of the daughter in this case: there were only two acts which could be charged since the uncharged acts were not alleged to have taken place in South Australia.

    HML v THE QUEEN: ADMISSIBILITY OF THE UNCHARGED ACTS: PRE-TRIAL PROCEEDINGS

  260. Counsel for HML objected to the uncharged acts evidence on the ground of irrelevance: that it did not legitimately explain any aspect of the evidence given about the Adelaide incidents. Counsel for the prosecution supported her tender of the uncharged acts evidence on the following grounds and in the following order.

  261. First, events occurring before the Adelaide incidents provided a "context" for those incidents. Without that context the unrealistic impression would be left that they "just occurred out of the blue".

  262. Secondly, events occurring before Adelaide explained why HML was "confident enough to .... offend" in Adelaide in the manner alleged.

  263. Thirdly, events occurring before Adelaide explained why the daughter "acquiesced" in HML's conduct in Adelaide. This was said to be the "flipside" of the second point, although strictly speaking it is not exactly so.

  264. Fourthly, the uncharged acts, both before and after Adelaide, were capable of demonstrating that HML had a "sexual attraction" for his daughter, and that this tended "to provide an explanation as to why it is that the offending in Adelaide may have occurred"[16].

  265. Fifthly, counsel for the prosecution argued that the offending after Adelaide explained why the daughter did not make immediate complaint about the occurrence of the charged acts in Adelaide.

  266. Sixthly, counsel for the prosecution submitted that the extent and duration of the conduct might explain any inability in the complainant to remember the dates and order of events.

  267. Counsel for HML dealt with the first five points by denying that there was anything which the uncharged acts could cast light on. He said of the sixth point that the uncertainties in the daughter's evidence related only to the uncharged acts, not the charged ones. This argument succeeded in the sense that neither prosecution counsel nor the trial judge thereafter said that the evidence could be used in the manner described in the sixth point. Counsel for HML also complained about the fact that the daughter's third statement, made in March 2006 just before the admissibility argument, had suddenly become more specific, to which the trial judge responded that that did not affect admissibility.

  268. The trial judge then held the evidence admissible. Apart from his interventions in argument, he gave no reasons for that conclusion. Although he was not asked to give reasons, it would have been desirable to do so if he thought that the evidence was admissible on some bases but not others, for that conclusion could have affected the conduct by counsel of the trial. But the trial judge's failure to give reasons is not advanced as a ground of appeal. And the trial appears to have been conducted largely (see n 194 above) on the assumption that the uncharged acts were admissible for the first five purposes described by prosecution counsel in opposing the objection. Those five purposes were described by prosecution counsel in her opening and closing addresses to the jury, and by the judge in summing up. Despite all this, as counsel for HML submitted in this Court, and as can commonly happen, the failure of the trial judge to give reasons may have caused him to fail properly to analyse the grounds for admitting or rejecting the evidence.

    HML v THE QUEEN: ADMISSIBILITY OF THE UNCHARGED ACTS: AMENDMENT APPLICATION

  269. In this Court HML sought leave to amend his notice of appeal by adding a ground contending that the Court of Criminal Appeal erred in:

    failing to find that the evidence of all or some of the uncharged acts was:

    2.5.1

    inadmissible;

    2.5.2

    in the alternative, not admissible on all of the various bases advanced by the prosecutor in her submissions on admissibility.

    Although the points underlying this ground were not taken in the Court of Criminal Appeal, the leave sought should be granted. The case does not fall within the area where an appeal will only exceptionally be entertained, namely where the points were not taken either at the trial or in the intermediate court of appeal (see Crampton v The Queen (2000) 206 CLR 161): the evidence which HML now says is inadmissible was objected to at trial, although most of the arguments now relied on were not put at that time.

    HML v THE QUEEN: ADMISSIBILITY OF THE UNCHARGED ACTS: THE ISSUES

  270. In assessing the admissibility of uncharged acts evidence, two primary issues arise. First, was the evidence relevant? Secondly, did any rule operate to render it inadmissible? A third issue which could arise is whether the evidence ought to have been excluded in the discretion of the court.

    HML v THE QUEEN: ADMISSIBILITY OF THE UNCHARGED ACTS