ELD v Regina

The appellant Mr. D has stood trial on three separate occasions.

In November 2003 the appellant stood trial in the District Court upon an indictment containing two counts. Count 1 charged that between 1 January 2000 and 31 January 2000 the appellant had assaulted one ED., committing upon her at the time of such assault an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 10 years. Such an offence contravenes section 61M(2) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 10 years. Count 2 charged that on 29 January 2002 the appellant had assaulted ED, committing upon her at that time an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 16 years. Such an offence contravenes section 61M(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty of imprisonment for 7 years.

The trial took place between 3 and 13 November 2003. The jury returned a verdict of not guilty on each count.

In March 2004 the appellant stood trial in the District Court at East Maitland. He was so tried in two back-to-back trials, each of which was a jury trial over which her Honour Judge English presided.

The indictment which was presented in the first such trial charged that between 1 September 2001 and 31 December 2001 the appellant had assaulted one CW, committing upon her at that time an act of indecency, the offence being aggravated by the fact that CW, at the material time, had been aged less than 16 years. Section 61M(1) of the Crimes Act, previously noted herein, applied to this charge.

The trial commenced on 10 March 2004 and concluded on 15 March 2004 with the returning by the jury of a verdict of guilty. In November 2004 Judge English sentenced the appellant to imprisonment for a fixed term of 12 months commencing on 19 November 2004, the date of sentence and expiring on 18 November 2005.

The indictment which was presented in the second such trial contained three counts. Count 1 charged that between 9 July 1997 and 10 July 1999 the appellant had assaulted SAH, committing upon her at that time an act of indecency, she then being under the age of 10 years, namely 6 or 7 years of age. Section 61M(2) of the Crimes Act, previously noted herein, applied to this charge. Count 2 charged that the appellant, between 1 January 2001 and 1 March 2001 had assaulted SAH, committing upon her at that time an act of indecency, she then being aged less than 10 years, namely 9 years. Section 61M(2) of the Crimes Act, previously noted herein, applied to this charge. Count 3 charged that the appellant, between 1 January 2002 and 2 February 2002 had assaulted SAH, committing upon her at that time an act of indecency, she then being aged less than 16 years, namely 10 years. Section 61M(1) of the Crimes Act, previously noted herein, applied to this charge.

This trial commenced on 16 March 2004 and concluded on 18 March 2004. The jury found the appellant not guilty on Counts 1 and 2, but found him guilty on Count 3. On 19 November 2004 Judge English sentenced the appellant to imprisonment for 2 years commencing on 18 November 2004 and expiring on 17 November 2006, and set a non-parole period of 18 months to commence on 18 November 2004 and to expire on 17 May 2006.

The appellant challenges each of his convictions and applies for leave to appeal against each of his sentences.

In considering the various appeals and applications it will be convenient to speak of the first of the 2004 trials as "the first trial"; and the other of those trials as "the second trial".

The grounds are:

The grounds are:

All of the notified grounds of appeal touch in some way or other upon the decision of the learned trial Judge to admit as part of the Crown case the evidence of ED, the complainant in the trial, previously noted herein, at which the appellant was acquitted.

An extensive hearing on the voir dire was conducted in order to test the admissibility of ED's evidence. On the third day of the trial Judge English gave judgment ex tempore and ruled that the evidence was both admissible and such as ought to be admitted. In the course of that judgment her Honour gave a convenient summary of the Crown's allegations respecting the appellant's alleged conduct towards the complainant CW. Her Honour said:

Her Honour gave, similarly, the following summary of the evidence that the Crown was proposing to lead from ED:

By far the greater part of her Honour's judgment is taken up by a consideration of the important question whether the whole of the evidence in the voir dire hearing raised as a reasonable possibility that the proposed evidence of ED had been concocted between her and CW; or between her and some other person(s), in particular ED's parents; or had been contaminated in any other way by reason of ED's interaction with CW or with any other person(s).

Judge English found that "… all of the witnesses called on the voir dire ... (were) ... credible", and accepted them as "… honest witnesses doing their best to tell the truth". In that connection it is relevant to note that the appellant neither gave nor called evidence on the voir dire.

I see no basis upon which this Court would be entitled to say that these findings of fact were not reasonably open to Judge English.

Once that point was reached, her Honour had to take into account two matters: one was the admissibility in principle, and the other was the actual admission at trial, of the evidence of ED.

The matter of principle can be posed in the form of this question: does the incontrovertibility of an acquittal of a person at his trial on a criminal charge entail that in a later trial of a different charge evidence is in principle inadmissible if it is evidence of the very conduct that was charged in the first trial at which there was an acquittal?

Her Honour did in fact consider this question and answered it in the negative. In my opinion she was correct to do so; and there is clear authority supporting that conclusion: The Queen v Carroll [2002] 213 CLR 635 per Gleeson CJ and Hayne J at 651(50); Reg v Z [2000] 2 A.0 483 per Lord Hope of Craighead at 487 B-C; per Lord Hutton at 490 G-H, where the questions actually certified for appeal to the House of Lords are stated, and 505A-B and 506E-G, where the stated questions are slightly amended and formally answered; and per Lord Hobhouse of Woodbrough at 508E-510E; R v Degnan [2001] 1 NZLR 280 per Tipping J, speaking for a five Judge Bench of the New Zealand Court of Appeal, at 292[37].

The paragraph last cited bears quotation because, with respect, it crystallises what I take to be the current law on the topic now being discussed:

As will appear later herein, the references in that quotation to a discretion to exclude the evidence need to be tempered in the New South Wales context by a regard to the particular requirements of sections 101(2) and 137 of the Evidence Act 1995 (NSW), but the general thrust of what is there said is, I apprehend, a reasonable overall summary of the current state of the relevant law.

Learned senior counsel for the appellant submits that the correct approach in principle is embodied in a particular passage of the judgment of Barwick CJ in Garrett v The Queen [1997] 139 CLR 437 at 445.

In Garrett a man was accused of having raped a particular prosecutrix in 1975. He was tried by jury and acquitted. He did not deny at his trial that the alleged intercourse had taken place. His defence was that it had been consensual.

He was subsequently brought to trial upon a charge of having raped the same prosecutrix in 1976. His stance was, once again, that the alleged intercourse had indeed occurred, but that it had been consensual.

At this second trial the Crown was permitted to lead over objection evidence of the prosecutrix that she had been raped in 1975 and that she had given evidence to that effect at the earlier trial. As Barwick CJ explains at 443-444:

It is against that background that Barwick CJ continues, in the passage upon which the present applicant particularly relies:

It is submitted that the joint observations of Gleeson CJ and Hayne J in Carroll are obiter dicta. I do not agree. The observations define a considered distinction between the inadmissibility of evidence that calls into question a previous conviction; and evidence that does not have that objective, but has rather the more limited objective of using evidence previously found insufficient to support, standing alone, a conviction upon a particular charge, not in order to re-open that earlier matter, but in order to use the evidence as similar fact evidence supportive of a different Crown case upon a different and unrelated particular charge.

It is submitted that, in any event, Garrett is applicable to the relevant circumstances of the present matter. I do not agree. Barwick CJ seems to me to make it explicit that his Honour is not dealing with the case before him as being in any way a similar fact evidence case.

Her Honour having decided correctly that ED's evidence was admissible in principle, she had then to consider the very different, and in this particular case the very difficult, question whether the evidence should actually be admitted. This question had to be resolved in a way that satisfied various relevant requirements of the Evidence Act 1995 (NSW). Two in particular of those provisions, sections 101(2) and 137, were especially important. Those sections provided, and indeed provide, relevantly:

In R v Ellis [2003] NSWCCA 319 Spigelman CJ, speaking for a specially convened five-Judge Bench, said of section 101(2) that: "it calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment rather than to exercise a discretion". The same is to be said, in my opinion, about the application in any particular case of section 137.

The process of reasoning by means of which Judge English carried out the balancing exercises and made the consequential judgments, that were required of her Honour by sections 101(2) and 137, is exposed in the following passages of her Honour's judgment:

This reasoning, and in particular the concluding paragraph of the above quotation, seems to me to conflate the quite distinct exercises in balancing and in judgment that are mandated by sections 101(2) and 137.

Section 137 required her Honour to balance any probative value of the proposed evidence of ED against any danger of unfair prejudice to the appellant. It is, I apprehend, clear enough that her Honour at least adverted to this statutory requirement. It is, in my opinion, wholly unclear whether her Honour perceived any, and if so what, danger of unfair prejudice; and it is equally unclear how her Honour, insofar as she did perceive any such danger, reasoned to a conclusion that the danger did not outweigh the probative value as assessed by her Honour. On this basis alone I would be satisfied that her Honour's judgment that ED's evidence ought to be admitted is significantly flawed.

Section 101(2) propounds a test that has some superficial similarities to the section 137 test, but the two tests are by no means identical.

Section 101(2) required her Honour to balance the probative value of the evidence as assessed by her, against any prejudicial effect that evidence might have against the appellant. As the Chief Justice explained in Ellis:

In my opinion, Judge English, who clearly relied upon an unexplained view of what was entailed relevantly by the decision of the High Court of Australia in Pfennig v The Queen [1995] 182 CLR 461, fell into precisely the error identified in the foregoing citation from Ellis. That such is the case seems to me to be clear: first, from the striking disproportion between her Honour's constant references to her assessment of probative value, and the near total absence of any reasoned assessment of potential prejudice or of danger of unfair prejudice; and secondly, from the course of events in the aftermath of the handing down of her Honour's judgment.

As soon as the Crown Prosecutor announced his intention to call ED, counsel then appearing for the appellant, (not being senior counsel for the appellant in this Court), asked for the jury to be sent out and applied: "... that there should be some explanation to the jury at this point in time as to what use they can make of this evidence". After a short adjournment followed by a short discussion with both counsel, her Honour said this to the jury:

This instruction to the jury was in my respectful opinion wholly insufficient to deal with the two difficulties that the jury was inevitably going to face in considering ED's evidence. The inescapable fact is that ED's evidence had no probative value whatsoever save upon the premise that the jury found the evidence to be both honest and reliable; and to be therefore such evidence as could be relied upon safely in aid of a conviction in the then current trial. The further inescapable fact was that the jury at the earlier trial had not been prepared to accept and to act upon the evidence of ED. There are, so far as I can see, only three bases upon which that jury could have declined so to accept and to act upon the evidence of ED: first, that the jury thought that her evidence was dishonest, or at least suspect as to its honesty; secondly, that the jury thought that her evidence was honest but unreliable, or at least suspect as to its reliability; thirdly, that the jury thought that her evidence was both dishonest and unreliable, or at least suspect on both those counts.

None of these matters was so much as touched upon in the directions. The result was that the jury had no explanation of the absolute importance of their positively accepting ED's evidence before they acted upon it; and of the potential impact upon that judgment of the refusal of the earlier jury to accept and to act upon that evidence.

ED began, presently, her evidence in chief. There was played to the jury a video tape of an interview of ED by an investigating police officer. A diagram and map were then tendered, whereupon the appellant's counsel at trial asked her Honour "to give the jury a direction in accordance with section 192 as to the limited use they can make of this material". Her Honour asked what the application actually was; and counsel replied that he would address later, as he in fact did after a handful of further questions in chief had been asked. One of those question was this:

There is further brief discussion during the course of which her Honour said that in her understanding: “... the preferred view is that they be given a full direction in the summing up as to the use they can use (sic, but read Make') of (ED's evidence)”.

The examination-in-chief was then closed and the following cross-examination took place:

At the close of this cross-examination the Crown Prosecutor raised in the absence of the jury this point:

This submission drew the following response from the appellant's then counsel:

The Crown Prosecutor retorted:

Her Honour then took a brief adjournment, following which the appellant's then counsel put further Browne v Dunn (1893) 6 R 67 submissions. They culminated thus:

Her Honour is recorded as having said at once:

I cannot see what her Honour could possibly have been meaning to convey other than that she accepted the soundness in principle of counsel's explanation of the course that he had taken as to the framing of his cross-examination. I am strengthened in that view by the consideration that almost immediately after her Honour had spoken, the jury was dismissed until the next sitting day; and, on the next sitting day, the first order of business was the closing of the case for the Crown and the opening of the case for the accused.

Immediately upon the opening of the case for the accused the appellant's trial counsel asked in the presence of the jury for a Crown concession, which was at once made by the Crown Prosecutor, that the appellant "…was acquitted by a jury at the Newcastle District Court on 11 November 2003 in respect to the complaint evidence brought by (ED)"

The appellant then gave sworn evidence. His examination-in-chief did not raise any matter about ED. The appellant simply and clearly stated that he was not guilty of any misconduct as alleged against CW.

In cross-examination the Crown Prosecutor put to the appellant that he “ … similarly touched (ED) on the breast, under her clothing while she was sitting on your knee driving the red four-wheel drive”. Defence counsel at once objected, upon the basis that the effect of what the Crown Prosecutor was doing was “to invite the jury to re-visit the issue of whether or not he is guilty or otherwise of that offence …”. Judge English overruled the objection, observing that the jury would be told “ … in no uncertain terms that we are not re-visiting that offence, that this evidence is in and in for one reason only”.

The Crown Prosecutor thereupon put distinctly to the appellant, in effect, that the appellant had indecently assaulted ED in January 2000 and in January 2002. The appellant denied simply and clearly every such allegation. The cross-examination concluded very shortly thereafter. Re­examination was brief and did not touch upon any allegation concerning ED. The case for the appellant was thereupon closed.

In the absence of the jury, the appellant's trial counsel had this exchange with her Honour:

In the course of the closing address of the Crown the jurors were told that Judge English would give them directions of law which they would need to keep carefully in mind; and the following submissions were put:

The closing defence address contains two brief references to the evidence of ED. The first reference is at p.36, 15/3/04; and the second reference is at p.43 of the same day.

The first reference was:

The second reference was:

The relevant directions given to the jury by her Honour were:

It will be observed that these directions nowhere bring clearly to the attention of the jury what I have described in paragraph 40 herein as inescapable facts. Further the repeated references to the civil standard of proof were, in my respectful opinion, inappropriate. It is unacceptably dangerous in any criminal trial to refer to the civil standard in a way apt to dilute whatever has been said correctly about the criminal standard as the measure of the onus of proof resting on the Crown; and in my view that unacceptable danger vitiates the quoted directions.

The whole of the foregoing canvass has brought me to these conclusions:

As to the appeal against conviction and the concurrent sentence application respecting the first trial, the Court should, in my opinion order:

The relevant facts are contained.

It was the appellant's case at trial that on the occasion on which the offence alleged in Count 3 allegedly occurred, the complainant, SAH, had used some strong swear-words; that the appellant had rebuked her for having done so in front of his grand-children who were then present; and that the appellant had told her that she would not be coming to the beach again.

These propositions were put to SAH in cross-examination and she denied them. The appellant, in his own sworn evidence, described the alleged incident. It is relevant to note in particular the following questions and answers:

In the course of his cross-examination, the appellant gave this evidence:

The Crown Prosecutor, upon the basis of the foregoing body of evidence, put some strong rhetorical submissions to the jury. The effect of the submissions was to invite the jury to disbelieve the appellant's version of the alleged swearing incident and to accept the version of the complainant. Part of that Crown submission was that: “Out of nowhere comes the words ‘fucking cunt’”. I do not believe that such a submission reflects fairly the evidence actually given by the appellant as noted above in the quotation from T 92, albeit that the present ground of appeal does not stand or fall upon that detail. In my opinion it is clear that the thrust of the Crown Prosecutor's argument was that were the jury to accept his submission, the appellant's credit must be diminished at least to some extent, and that the jury should, on that account, be the readier to accept the honesty and reliability overall of the complainant. The Crown Prosecutor concluded the relevant sections of his submissions by putting in terms: "The Crown submits to you that (SAH) was very obviously a witness of truth who you can accept to that high standard beyond reasonable doubt". (T 17, 18/3/04]

Defence counsel, towards the conclusion of his own submissions, touched upon the point, but very briefly and in a few bare lines of general submission.

The essence of the submission now advanced by the appellant is put as follows in paragraph 36 of the written submissions for the appellant:

When her Honour came, in the course of her charge to the jury, to canvass the trial evidence on Count 3, she noted that the appellant had given sworn evidence denying outright any indecent touching of SAH. Her Honour reminded the jury that the appellant had been under no obligation whatsoever to give sworn evidence. Her Honour then said this:

Apart from these directions, her Honour had emphasised repeatedly and, with respect, clearly the paramount requirement of the law that the Crown prove beyond reasonable doubt each and every essential element in any individual charge being considered. It is not, I think, necessary to extract all of those directions in their detail. I have read them, and I believe that there is no reasonable basis for any proposition that the directions to the jury were insufficient in what they instructed the jury about the onus and standard of proof. I do not see that a fair reading of the summing up gives any cause to fear a miscarriage of the kind suggested by Wood CJ at CL in paras 50 through 63 of his Honour's judgment in R v Smith [2000] NSWCCA 468, an authority upon which the appellant's submissions on Ground 1 rely heavily.

Not quite so cut and dried is the different potential problem that the appellant submits is present in this case, namely an alleged insufficiency of proper directions on the alleged motive of the complainant to lie about the indecent touching that she was alleging against the appellant.

This topic, also, is the subject of extensive analysis by Wood CJ at CL in Smith (supra): see paras 80 through 118 of his Honour's judgment.

It is clear enough that: "the posing of a question in the course of a closing address, that is designed as an invitation to the jury to consider why the complainant would be making her evidence up, is both imprudent and inadvisable, that is where the question of motive has not been ventilated in the evidence": per Wood CJ at CL at para 93. That, of course, is not this case. Here, a motive to lie was assigned in terms by the appellant to the complainant. In such a case the principles are stated as follows by Wood CJ at CL:

In the present case, I would not think that it could be contended reasonably that it would not have been "appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasis that the Crown must still satisfy them that the witness is telling the truth". The question is: was a substantial miscarriage of justice caused by the failure of the trial Judge to give such a direction?

An affirmative answer to that question should not be given lightly. Judge English was in a much better position than this Court is in now to assess the atmosphere and the forensic practicalities of the trial. It must be acknowledged that neither the Crown Prosecutor nor experienced defence counsel assisted her Honour by suggesting that there was authority supportive of the appropriateness in this case of a Uhrig warning. It is the consistent stance of the Court of Criminal Appeal that the failure of experienced counsel to seek at trial a particular direction affords a strong indication that no such direction was required: R v Its (2003) 139 A Crim R 340 per Ipp JA, (Buddin and Shaw JJ concurring), at paras 92 through 99.

It seems to me that to answer fairly the question now being considered, it is necessary to balance the following factors:

I have not found these factors easy to balance against, in particular, the Ita approach. For that reason alone I would grant the formal leave required by Rule 4 of the Criminal Appeal Rules. I have reached, however, the conclusion that the point ought not to be upheld. The summing up, read fairly as a whole, seems to me to have been very carefully crafted on the topic of the onus and standard of proof, and to have achieved by the time of its conclusion so clear and emphatic and so repeated an emphasis upon that topic as to warrant a view, strengthened in my opinion by the lack of any relevant application at trial, that the summing up, which effectively ignored the rhetoric of the Crown submission, sufficiently drew the sting of that submission.

I would not, therefore, uphold Ground 1.

The basic question to be decided is whether the appellant's conviction on Count 3 of the indictment is reasonably sustainable upon the basis of the whole of the relevant evidence led at trial upon that count. The relevant principles in that respect are those established by the High Court of Australia in M v The Queen (1994) 181 CLR 487. The principles thus established are well known, and it is not necessary to repeat their fine detail.

Whenever, as in the present particular case, it is contended that a particular conviction cannot be sustained reasonably upon the relevant evidence led at trial, and the true gravamen of the challenge is that the questioned verdict of guilty is inconsistent with cognate verdicts of not guilty, then certain additional matters need to be kept in mind. It is sufficient, for the present, to cite the following brief passage from the judgment of Spigelman CJ in R v Markuleski [2001] 52 NSWLR 82 at para 125.

Markulesid was a judgment of a specially convened five-Judge Bench of this Court, the members of the Court in addition to the Chief Justice being Wood CJ at CL, Grove and Simpson JJ and Carruthers A-JA. No member of the Court dissented from that part of the Chief Justice's reasoning which is expressed in the cited portion from paragraph 125 of his Honour's judgment.

In M.F.A v The Queen [2002] 213 CLR 606 a submission was put to the High Court of Australia that Markuleski had been wrongly decided. The Bench was constituted by Gleeson CJ with McHugh, Gummow, Kirby, Hayne and Callinan JJ. Gleeson CJ, Hayne and Callinan JJ, in a joint judgment, expressly rejected that submission. The other three Justices, also in a joint judgment, did no more than to remark in their footnote (68) that it was not necessary to decide the submission.

It is, I think, useful for present purposes to note the detail of paragraph 34 in the joint judgment of Gleeson CJ, Hayne and Callinan JJ:

I take from the foregoing statements of principle the proposition that this Court should proceed in the present case with a proper circumspection before concluding that the jury verdict on Count 3 is, on a properly principled view, unsustainable on the evidence and that it should therefore be set aside. It does not seem to me to dilute in any way the substance of the stated proposition to add to the proposition the observations made in paragraph 86 of the joint judgment of McHugh, Gummow and Kirby JJ:

Judge English, in her Honour's charge to the jury, and no doubt bearing in mind some advice given in Markuleski, instructed the jury as follows:

During the cross-examination of the complainant the appellant's counsel at trial cross-examined in connection with the first of the three alleged incidents. The jury was then sent out while Her Honour considered certain legal argument, the detail of which is not now important. During the adjournment the jury sent to her Honour a note reading: "Could we find out off [the complainant] why did she keep going back in the 4 WD to the beach”?

After some very brief discussion between her Honour and both counsel as to ways in which the note might best be treated, counsel then appearing for the appellant said that he would himself put the jury question to the complainant at some appropriate point during the remainder of the cross-examination.

After the cross-examination had resumed, counsel cross-examined in connection with the second of the three alleged incidents, and in the course of that part of the cross-examination asked these questions and received these answers:

Applying the whole of the foregoing statements of principle to the given facts of this particular case, the features of the case which strike me as being, in combination, determinative of the present appeal are these:

It is clear from the question asked by the jury that the members of the jury were interested to know why the complainant had continued to go out with the appellant in the aftermath of the first of the three alleged incidents. It was, of course, open to the jury to accept the explanation given by the complainant: namely, that she had, in effect, no choice, because for her not to continue going out with the appellant would have caused questions to be asked, and that would have entailed in its turn her having complained about impropriety on the part of the appellant, something that she was at that time too frightened to contemplate. My difficulty is that I could well understand why a jury, accepting that explanation, would have thought it safer than it might otherwise have been to find the appellant guilty; but I cannot see quite so readily why the jury would have accepted the complainant's explanation for the absence of relevant complaint evidence, and then have acquitted the appellant on Count 1.

I could accept, similarly, that the jury, having seen and heard the complainant, might well have been prepared to take the view that the absence of any relevant complaint evidence in respect of the second count was capable of being explained away as in Count 1. It seems, however, odd to me to think that the jury would have accepted the complainant's evidence as essentially honest and reliable; would have accepted that there was an understandable explanation for the absence of consistent complaint evidence; but nevertheless would have acquitted the appellant.

In respect of Count 3, I cannot see how it would have been permissible for the jury to have reasoned that the complainant's evidence was uncorroborated and unassisted by sufficiently exact evidence of relevant complaint; but that it might nevertheless be accepted that the alleged incident did in fact occur simply because the complainant had not gone out again in the appellant's company after having finally decided to say whatever it was she did in fact say to her mother. I certainly do not think that it would have been permissible for the jury to have taken the view that the mere subsequent involvement of the police necessarily entailed that the offending incident had in fact occurred; or to have inferred that whatever it was the complainant had said about the detail of that alleged incident was consistent with her description of the incident during the course of her evidence at trial.

In the end, and after considering carefully the guiding principles to which I referred in the opening paragraphs of this section of the present judgment, I find myself with an invincible conviction that there is something wrong with the finding of guilt returned on Count 3. I cannot see any persuasive, let alone convincing, foundation in logic and common sense for an acquittal of the appellant on Counts 1 and 2, and a simultaneous conviction on Count 3.

In all of those circumstances it seems to me that the present case is one in which it would be proper to quash the appellant's conviction and sentence and to direct an acquittal.

For the whole of the foregoing reasons, I am of the opinion that the Court should make the following orders:

HULME J: In this matter, I have had the advantage of reading the reasons for judgment of Sully J .and I can accordingly be brief. I shall adopt his Honour's references to the First and Second Trials.

I agree with the orders his Honour proposes in respect of the appeal against the conviction resulting from this trial. However, I prefer to express my own reasons for that conclusion.

If the evidence of ED was admissible, its accuracy was a relevant issue and thus also relevant was the credibility and reliability of ED. Counsel chose not to canvass these matters fully in the cross-examination of ED and in other circumstances there would be much to be said for the view that Rule 4 of the Criminal Appeal Rules should preclude those acting for the Appellant in the appeal from raising that issue in this Court. However, as Sully J has concluded, and at a time when things could have been changed, the trial judge indicated her concurrence in the approach adopted by counsel at the trial. Then, in the extract from her summing-up which Sully J has quoted, her Honour raised for the jury's consideration the truth of what ED had said. That inconsistency of approach of her Honour was unfair and, of itself, created a miscarriage of justice.

Counsel for the Appellant at the trial did not seek any redirection in that regard but the matter was of such significance that it could not have been adequately dealt with at that stage of the trial. Hence, there is no adequate reason for the application of Rule 4 in relation to it.

This conclusion makes it unnecessary for me to embark on a consideration of the other matters to which Sully J has referred in arriving at his conclusion as to the disposition of the appeal from the first trial. However, there are a few matters to which I would refer.

I agree that her Honour's directions to the jury as to the way in which they could use the evidence of ED were inadequate. I do not, as does Sully J, find error in her Honour's mention of the balance of probabilities: The evidence of ED was but one of the factors the jury were asked to take into account as indicating guilt: It was not an essential link in the Crown's case and thus, if admissible, proof of it on the balance of probabilities was sufficient to justify the jury weighing it in the scales — see my discussion of this topic in R v Vinh Le [2000] NSWCCA 49 at 116.

If admissible the evidence of ED was of a nature as to require her Honour to explain how, and the limits of how, it could be used. Clearly, once ED's evidence was admitted, the evidence of both girls could be used to prove that the Appellant's touching of the complainant's breast was deliberate and not accidental, or was indecent and not innocent. However Her Honour seems not to have been conscious of the distinction in s98 between "events" on the one hand and "act" or "state of mind" on the other. The effect of what her Honour said seems to have been that the jury could use the evidence of indecent assaults on ED and the complainant to prove that, because of the improbability of the events occurring coincidentally, the Appellant committed the indecent assault on the complainant. That is to equate the "events" referred to in s98 with the different concept reflected in the section by the word "act".

Indeed, there is much to be said for the view that, so far as coincidence is concerned, the evidence of assaults on ED had no relevance to the charges of assault on the complainant except on issues such as accident of indecency.

I would also observe that, while acknowledging the authority of Sully J's references to The Queen v Carroll [2002] 213 CLR 635, Reg v Z [2002] 2 AC 483 and R v Degnan [2001] 1 NZLR 280, regard should also be had to the references by Gaudron and Gummow JJ at [92] and by McHugh J at [137] to R v Storey (1978) 140 CLR 364 and to the need for a jury to be directed that a previous acquittal cannot be challenged and the evidence must not be taken as proving guilt on the earlier charge. That is a stronger direction than occurred in this case. Such a direction would be calculated to weaken significantly the probative weight which could be given to ED's evidence and to the prospect that it would be admitted after the balancing exercises required pursuant to ss101(2) and 137 of the Evidence Act 1995 (NSW).

So far as this trial is concerned, I agree with Sully J that the first ground of appeal fails.

However, I disagree with his Honour on the topic of the second ground and as to the result of the appeal. The appeal against conviction in this second trial should be dismissed.

I do not regard the Appellant's acquittal on counts 1 and 2 as requiring or justifying the conclusion that the guilty verdict on count 3 should be set aside. There was, within the context of a jury trial, sufficient difference in the evidence relating to, on the one hand, the first 2 counts and, on the other hand, the third.

Although the evidence did not reveal the details of what was said by the complainant to her mother when they spoke about the matter some 3 weeks after the events the subject of the third count, or indeed which of them initiated the discussion, it is clear that the Appellant's conduct was the subject of discussion at that time, that the complainant spoke to the police about it on 21 February 2002 in the course of a recorded interview and that it was common ground that, with the possible exception of one occasion, the complainant did not again join the Appellant in his car.

On the other hand the complainant agreed that, despite saying she objected to the Appellant touching her when it occurred and believed that his conduct was wrong, after the events the subject of the first and second counts she repeatedly accepted invitations to accompany him. As is apparent from the jury's note which asked, "Could we find out off (the complainant) why did she keep going back in the 4 WD to the beach?", the jury were clearly interested in the apparent inconsistency between her attitude as evidenced by her testimony and her conduct.

It must be accepted that the jury's acquittal of the Appellant on counts 1 and 2 is an indication that, either they were unwilling to accept to the requisite standard the complainant's evidence as to the occurrence of the offences the subject of those counts and the complainant's explanation as to why she continued to accompany the Appellant or, accepting that evidence, were unwilling to convict the Appellant on those counts. It must also be accepted that, if the latter is the explanation, the jury did not adhere to their oaths or affirmations to decide the case according to the evidence.

However the courts, including the High Court, have recognised that such occurrences are an inherent part of the jury system — see Markuleski (2001) 125 A Crim R 186 at 201-2 and Mackenzie v R (1996) 190 CLR 348 at 367-8 where Gaudron, Gummow and Kirby JJ agreed with the following observations of King CJ in R v Kirkham (1987) 44 SASR 591 at 593:-

When the acquittal of the Appellant is explicable on the bases of this understanding of the jury system and what, if I may say so, is a very sensible attention to the apparent inconsistency between the complainant's words and conduct, the difference in the verdicts does not, to adapt some further words of the majority in Mackenzie v R (at 368), "rise to the point that I consider that intervention is necessarily required to prevent a possible injustice".

So far as the appeal against the conviction resulting from First Trial is concerned, I agree with the orders Sully J proposes.

I would dismiss the appeal against the Appellant's conviction in the second trial.

As Sully J states, the Appellant has also sought leave to appeal against sentence. As I am in a minority on the topic of conviction, it becomes unnecessary for me to consider this.

LATHAM J: I agree with Sully J.