Uddin v R

1. [1]

   MEAGHER JA: On 14 May 2019, following a trial by jury in the District Court, the applicant was convicted of three counts of sexual intercourse with a child under the age of 10 years, and two counts of aggravated indecent assault (Crimes Act 1900 (NSW), ss 66A(1) and 61M(2)). Those offences were alleged to have been committed between 1 January 2015 and 30 December 2017 whilst the complainant, then aged between 2 and 5 years, attended a small day care facility operated by the applicant’s wife from their family home.

2. [2]

   The Crown case was that the applicant committed those five offences on four separate occasions. The offences of which he was convicted were touching the victim inside her genitals with his finger in the toy room (count 1), in the kitchen (count 2) and in the sleeping room (count 5); kissing the area on her chin and beneath her lips after she had used the toilet (count 6); and touching the complainant’s bottom on the outside of her clothing in the sleeping room (count 4, which was in the alternative to the rejected count 3, and alleged to have occurred at the same time as count 5). The references in each case are to rooms in the day care facility.

3. [3]

   The applicant seeks to appeal against those convictions on the following grounds:

   1. (1)

      Ground 1

   2. (2)

      The trial judge’s order rejecting his application for a voir dire regarding evidence relating to the complainant’s prior conduct with her brother and male cousins because such evidence was (a) irrelevant and, in the alternative, (b) inadmissible under s 293 of the Criminal Procedure Act 1986 (NSW), was erroneous and occasioned a miscarriage of justice.

   3. (3)

      Ground 2

   4. (4)

      The trial judge’s directions as to the use that could be made of evidence of the complainant’s conduct, being her interest in her genitals and her reluctance to attend the day care centre or be with the accused, in the period before her first complaint to her mother were inadequate and occasioned a miscarriage of justice.

4. [4]

   Criminal Procedure Act, s 293 (first enacted as Crimes Act, s 409B in 1981, and first enacted in the Criminal Procedure Act as s 105 by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)) makes inadmissible evidence that discloses or implies a complainant has or may have had sexual experience or taken part in any sexual activity, unless the evidence falls within one of the six exceptions in subs (4)(a) to (f). In this appeal, the potentially relevant exception is that in para (a).

5. [5]

   The evidence which is the subject of ground 1 was evidence of a conversation between the applicant’s wife and complainant’s mother as well as evidence which it was expected, based on what had been said in that conversation, that the complainant’s parents could give of their own observations. The applicant’s wife’s evidence was contained in a police statement but did not indicate when the relevant conversation had occurred. During the trial, the applicant’s counsel particularised that evidence in a document which became MFI 7, as follows:

6. [6]

   The conduct to which that evidence was said to be relevant was described by the Crown prosecutor in her opening to the jury as follows:

7. [7]

   The occasion referred to by the Crown was said to have occurred in the last “ten days or thereabouts” of December 2017, the complainant having first disclosed the applicant’s alleged conduct to her mother on 30 December 2017. This evidence, and evidence of the complainant’s parents that from about October 2017 she was reluctant and upset when attending the day care centre, is the subject of ground 2.

8. [8]

   In relation to ground 1, the Crown’s position at trial, maintained before this Court, was that the evidence of the complainant exploring her own vagina was not evidence that disclosed or implied she had or may have had “sexual experience” or taken part in any “sexual activity” within s 293(3) of the Criminal Procedure Act. At the same time it contended at trial and maintains before this Court that the evidence which the applicant sought to establish and lead as to the complainant’s conduct with her brother and two male cousins involving “experimental or explorative touching of genitals by children”, was evidence of sexual activity in which she had taken part or evidence that she had or may have had sexual experience. At trial, defence counsel accepted the correctness of the Crown’s characterisation of that “prospective” evidence for the purpose of applying the prohibition in s 293(3). Before this Court, the applicant’s position is that none of that conduct (as presently known and described in the applicant’s wife’s statement) involved the complainant taking part in sexual activity or her acquiring sexual experience.

9. [9]

   Those uncontested characterisations were adopted by the trial judge. Her Honour’s doing so meant that unless the exception in s 293(4)(a) was likely to be engaged, the applicant was prevented from seeking to establish and lead evidence said to provide an innocent explanation for why the complainant’s parents had observed her display an interest in her genitals.

10. [10]

    The applicant requires leave to appeal on each ground of appeal because neither involves a question of law alone: Criminal Appeal Act 1912 (NSW), s 5(1)(b). As no objection was taken at trial to the directions which are the subject of ground 2, the applicant also requires leave to rely on that ground under Criminal Appeal Rules, r 4.

Background

1. [11]

   The applicant was a taxi driver and registered assistant with his wife’s business, which operated seven days a week. As at December 2017, they had been married for 17 years and had two children. He drove a taxi almost every day of the week, usually on night shifts. The complainant attended the day care facility on most weekdays and on the weekend. Her older brother (X) was at school, but attended day care on the weekends. The complainant’s father’s brother and his wife and two male children (Z and Y) lived with the complainant’s family. Those children also attended the day care centre. In December 2017, the complainant was 5 years old. Her brother X was 6 years 9 months old, and cousins Z, 5 and a half years old, and Y, 3 years old.

2. [12]

   As the trial judge made clear to the jury in the summing up, the Crown case relied “essentially upon the evidence of the complainant”. That evidence included bare descriptions of the offending conduct, the room in which it happened, and references to persons who may have been present at the times it occurred. In cross-examination, as one might expect, the complainant did not, or was unable to, answer many questions making it very difficult for defence counsel to obtain evidence from her or challenge her account.

3. [13]

   Her first complaint was made to her mother on 30 December 2017. On the following day her parents recorded her account on an iPhone and reported the allegations to the police. The complainant was then interviewed by officers of the Child Abuse Unit on 3 January 2018. That record contained many unanswered questions, as well as leading ones. The applicant was also interviewed by police on 3 January 2018. He denied the complainant’s allegations.

4. [14]

   The Crown led evidence from the complainant’s parents that in the weeks preceding the disclosure to them they had noticed the complainant touching and trying to look at her vagina. In her statement to the police given on 3 January 2018, the complainant’s mother said that in the last two to three weeks of December 2017 she had noticed her daughter’s behaviour “changing with her sitting sometimes and touching her vagina”. She gave evidence of the occasion on which the complainant was exploring her genitalia in the car, and of having seen the complainant on earlier occasions in December “on the sofa, spreading the area of her vagina and looking inside and overall being very curious suddenly about her genitals”.

5. [15]

   Although the Crown case was opened on the basis that there was a short period between this behaviour and the complainant first raising the offending conduct, in their evidence her mother and father extended the period during which this behaviour back to October 2017 in the case of her father, and June or July in the case of her mother.

Application for voir dire foreshadowed

1. [16]

   During the complainant’s cross-examination, the applicant’s counsel raised with the trial judge for the first time that she sought to lead evidence (in cross-examination) from the complainant’s mother and the applicant’s wife of conduct of the complainant and her two cousins and brother which included the “touching of private parts between them”. Counsel described the evidence as providing “another scenario or another event that could explain what the Crown had identified to the jury of the complainant’s behaviour observed by the mother in the weeks leading up to the arrest”. The police statements of the applicant’s wife dated 25 January 2018 and complainant’s mother dated 3 January 2018 were then marked for identification. The former included the following statement concerning a conversation with the complainant’s mother, the date of which was not specified:

2. [17]

   The latter included the genital exploration evidence referred to above.

3. [18]

   It is convenient at this point to set out the relevant provisions of s 293:

Ground 1

1. [19]

   Section 293(7) prevented defence counsel from cross-examining the complainant, her parents, or the applicant’s wife about the evidence in question without first obtaining the Court’s ruling as to the admissibility of that evidence, either as not within s 293(3) or within one of the exceptions in s 293(4); and that ruling was to be made “in the absence of the jury”.

2. [20]

   If the evidence was ruled admissible (under an exception in s 293(4)), the Court was required by s 293(8) to record or cause to be recorded in writing the nature and scope of the evidence that was ruled admissible and the reasons for that decision.

3. [21]

   As Campbell JA observed in Taylor v The Queen (2009) 78 NSWLR 198; [2009] NSWCCA 180 at [47], in that context, having regard to the structure of s 293, proposed evidence which was or might be within the prohibition in subs (3) “would need to be known in some detail before counsel or the judge was in a position to tell whether it fell within one or the other of paras (a)-(f) of subs (4), and whether the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.”

4. [22]

   That was the position which confronted defence counsel with respect to the leading of evidence as to any conduct of the complainant with her brother and cousins. It was necessary first to establish the time and any more detail of the applicant’s wife’s conversation, as well as what the complainant’s parent’s would say had occurred. Only then would the trial judge be in a position to rule on the admissibility of the evidence and record its nature and scope. From the applicant’s perspective, a voir dire examination, conducted in the absence of the jury, in which the witnesses examined included the complainant’s mother and father and applicant’s wife, was necessary. First, it would permit the accused to establish what the available evidence was (the purpose of a Basha (1989) 39 A Crim R 337 inquiry) and, secondly, it would enable the Court to determine its admissibility in the absence of the jury and in accordance with s 293.

5. [23]

   In exchanges with the trial judge during the complainant’s cross-examination, the applicant’s counsel proposed that course. The Crown indicated its position was that any evidence of the complainant and her brother and cousins touching each other’s “private parts” would be inadmissible unless within one of the exceptions in subs (4). Defence counsel then deferred the foreshadowed voir dire application until such time as she was able to reduce to writing the nature of the evidence she sought to lead.

6. [24]

   The application for the voir dire was renewed during the examination in chief of the complainant’s mother. In terms it was that there be a voir dire so that the relevant evidence could be established and ruled on. The proposed witnesses were identified as the complainant’s mother and father, and the applicant’s wife. There was no application to cross examine the complainant on the voir dire.

7. [25]

   Following short argument, the trial judge rejected the application to examine the witnesses on the voir dire for the following reasons:

8. [26]

   The applicant contends that the trial judge erred in three respects. They are: (1) in concluding that the prospective evidence was not or would not be relevant; (2) in concluding that the prospective evidence was or would be inadmissible as falling within s 293(3); and (3) in not concluding that the evidence was or would likely be within the exception in s 293(4)(a). The application of each of the exceptions in subs (4) is subject to the further condition that the Court be satisfied that “the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.” The trial judge did not consider whether this condition was or would have been satisfied.

9. [27]

   For the applicant it is submitted that the evidence sought to be established and led would have been relevant and otherwise admissible. A fact in issue at the trial was whether the complainant’s exploration of her genitals as observed by her parents was a consequence of the fact that she had been or was being sexually assaulted by the applicant. The evidence sought to be adduced provided an alternative and innocent explanation for the complainant displaying an interest in her genitals, namely a natural curiosity about her body parts.

10. [28]

    Accordingly, so it was submitted, the evidence was relevant, because it could rationally affect the assessment of the probability of the existence of a fact relevant to a fact in issue, namely that the complainant’s observed conduct in exploring her own genitalia was a consequence of her having been sexually assaulted by the applicant: Evidence Act 1995 (NSW), s 55; Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at [2] (Gleeson CJ). Any evidence of the complainant’s mother and father of their direct observations of such conduct would be admissible. And the applicant’s wife’s evidence of the statement made by the complainant’s mother would also be admissible under Evidence Act, s 66 as evidence of the truth of the complainant’s mother’s “previous representation”.

11. [29]

    The Crown’s position is that the trial judge did not rule on the relevance of the prospective evidence and that in the light of her Honour’s other conclusions there was no error in not doing so.

12. [30]

    In my view, the trial judge plainly did not rule on the question of relevance. It was conceded that the prospective evidence would be inadmissible unless within one of the exceptions. Her Honour’s conclusion that subs (4)(a) did not apply because the evidence was not part of a "connected set of circumstances” meant that its likely relevance and “temporal” connection to the alleged offending did not have to be determined in deciding whether there should be a voir dire examination.

13. [31]

    The question of the relevance of the proposed evidence nevertheless remains to be considered in addressing whether this first ground of appeal, if otherwise made out, gave rise to a “miscarriage of justice” for the purposes of Criminal Appeal Act, s 6(1).

14. [32]

    Evidence of mutual or one-way touching of “private parts” as between the complainant, her brother and two cousins would have been relevant for the reasons contended by the applicant. That evidence would otherwise have been admissible as direct evidence of that conduct, if given by the complainant’s parents, and as hearsay evidence of that conduct, if given by the applicant’s wife.

15. [33]

    Before this Court, the applicant contends that evidence of conduct engaged in by the children, none older than 7, who were cousins living in the same household, would not constitute or involve evidence of “sexual activity” or the “sexual experience” of the complainant.

16. [34]

    Section 293(3) makes inadmissible evidence that discloses or implies that the complainant has or may have had “sexual experience” or has or may have taken part in any “sexual activity”. Neither of those expressions is defined. Each as used is capable of being described by reference to its “general or specified nature” (s 293(6)).

17. [35]

    Taking part in “sexual activity” ordinarily describes participation in activity which derives from or relates to a desire for sexual pleasure, although that participation may not be consensual or involve any other person. The expression “sexual experience” is somewhat broader, and refers to the nature and extent of a person’s sexual experience.

18. [36]

    In HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, an argument that the earlier provision in Crimes Act, s 409B(3) applied only to prior consensual sexual activity was firmly rejected. In doing so, Gleeson CJ (at [30]-[31]) adopted the reasoning of Mason P for doing so (R v G (1997) 42 NSWLR 451 at 458) and added a further observation:

19. [37]

    However, not all activity which involves touching one’s own or another person’s sexual organs, or other body parts that attract sexual interest, is ordinarily described as or understood to be sexual activity or to constitute a sexual experience. Obvious examples are actions properly taken by a treating medical practitioner, or persons attending to their personal hygiene or that of their children or of others in their care.

20. [38]

    In the end, the question is whether the activity or experience is “sexual in nature” (BG v R [2010] NSWCCA 301; (2010) 208 A Crim R 34 at [79]). For the purpose of the application of s 293, there can be only one correct answer to that question. Arriving at that answer requires an evaluation of the activity or event, taking account of the circumstances likely to inform whether it was sexual in nature. Those circumstances are likely to include the purposes and desires of one or more of those involved. However, the characterisation of the activity or experience as sexual is not to be determined by reference to the attitudes or sensitivities of those persons or any particular individuals or groups, which in each case may differ.

21. [39]

    Rather, the question calls for an objectively appropriate characterisation by reference to what is reasonably considered to constitute sexual activity. Approached from the perspective of a “constructed proxy for the judge”, the reference point is that of the reasonable person. Adopting such a construct serves as a reminder that in assessing the nature of the activity or event the judge is to “put to one side subjective reactions which may be related to specific individual attitudes or sensitivities”: Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at [44] (French CJ).

22. [40]

    There is in the statutory context of s 293, and its purpose, support for adopting an objective standard for assessing the nature of an activity or experience as sexual. The section applies to evidence in proceedings in respect of “prescribed sexual offences” which by Criminal Procedure Act, s 3(1) include offences of “sexual touching” (Crimes Act, s 61KC) and carrying out a “sexual act” with or to a person (s 61KE). In relation to each of those offences, the character of the proscribed conduct as sexual depends on whether it occurs “in circumstances where a reasonable person would consider the [touching or act] to be sexual” (ss 61HB(1), 61HC(1)). The same language used in the related context of s 293 should, if possible, be given a consistent meaning. Doing so does not give the expressions “sexual experience” and “sexual activity” a narrower meaning than they have in ordinary language or undermine the purpose of s 293, which is to avoid distress, humiliation or embarrassment to a complainant in criminal proceedings as a result of the admission of evidence which is reasonably regarded as being about his or her prior “sexual” activity or experience.

23. [41]

    Accordingly, the question for the trial judge in determining the application for the voir dire was whether the prospective evidence was likely to be so characterised as sexual in nature. In making such an assessment the matters to be taken into account included the ages, maturity and relationships of those involved, and whether the activity derived from or related to any desire for sexual gratification.

24. [42]

    The Crown contends that the prospective evidence was of “experimental or explorative touching of genitals by children” and as such involved each of them taking part in sexual activity. In December 2017, the four children were aged between 3 and 6 years 9 months, were cousins, and were living in the same household. That their conduct might be understood or interpreted as “experimental or explorative touching” does not imply that it was of a sexual nature. On the face of the evidence sought to be established in the voir dire, there was no suggestion that the touching derived from or related to any purpose of sexual gratification. It follows in my view that the concession made by defence counsel and adopted by the trial judge as to the prospective evidence being inadmissible under s 293(3) was wrongly made.

25. [43]

    The trial judge considered this question, assuming that there was a temporal relationship between the events in question and the alleged offences. Here the offences were alleged to have been committed at the day care centre between January 2015 and December 2017. It follows that in considering the possible application of the exception in para (a), the trial judge treated the prospective evidence as directed to activities of the children occurring in and before December 2017, and in the same period that the complainant was showing interest in her genitals.

26. [44]

    Reference has already been made to the predecessor provision to s 293, Crimes Act, s 409B, which was enacted by the Crimes (Sexual Assault) Amendment Act 1981 (NSW). The exception in s 293(4)(a) is in relevantly the same terms as was the exception in s 409B(3)(a).

27. [45]

    The question raised by s 293(4)(a)(ii) was whether the prospective evidence of what allegedly took place between the children – the relevant “events” – formed part of “a connected set of circumstances in which the alleged prescribed sexual offence was committed”. As Gleeson CJ and Mahoney JA separately emphasised in R v Morgan (1993) 30 NSWLR 543 (which concerned the construction and application of s 409B(3)(a)(ii)), this exception permits the admission of evidence which is relevant and of probative value and does so by reference to a connection the sufficiency of which “is left at large by the statute” (Gleeson CJ at 544), and with “no indication of what is an acceptable connection” (Mahoney JA at 551). Gleeson CJ considered that since the “evidence in question is by hypothesis relevant and of probative value... no narrow approach should be taken to that part of the statutory provision which permits its reception” (at 544). His Honour also agreed with the statement to similar effect of Mahoney JA (at 551) that “established principles of construction and of justice require that the Court adopt a construction [of this exception] which favours the liberty of the accused”. See also R v Rahme [2004] NSWCCA 233 at [208] (James J, Hulme J agreeing); Taylor v The Queen (2009) 78 NSWLR 198; [2009] NSWCCA 180 at [36]; Adams v R [2018] NSWCCA 303 at [165] (Campbell J, Hoeben CJ at CL agreeing).

28. [46]

    For para (a)(ii) to be satisfied requires that there be “a connected set of circumstances”, that the set of circumstances include the commission of the alleged offence or offences, and that the evidence otherwise inadmissible by reason of s 293(3) be of events alleged to form part of that set of circumstances. Whilst the second use of “alleged” in para (a)(ii) refers to the prosecution case, the first may include events alleged by the defence to form part of a relevant “connected set of circumstances”. It follows that the expression “a connected set of circumstances” is not to be construed as being, or limited to, the “connected set of circumstances” propounded by the prosecutor. The use of the indefinite article confirms that this is so.

29. [47]

    The Crown contends that the proposed evidence did not form part of the “set of circumstances in which the alleged offence occurred” as described by the complainant. It is said that the only circumstance to which the prospective evidence was connected was the observed behaviour of the complainant’s genital exploration, which did not form part of the circumstances in which the alleged offences were committed. It was also said that the evidence did not reveal any event that was part of the narrative of events leading to the offences, or which provided “a piece of any jigsaw puzzle concerning the ‘set of circumstances’” in which the offences were committed, citing Beech-Jones J in GEH v R [2012] NSWCCA 150; (2012) 228 A Crim R 32 at [82].

30. [48]

    In R v Morgan, Gleeson CJ observed that a “connected set of circumstances” may be or include activities or conduct which “constituted the context in which the alleged offence was committed and against which the complainant’s evidence might reasonably be evaluated” (at 544). In that case, as in this, the evidence relied on was of an event that had relevance beyond what it might reveal about the complainant’s credit. The appellant was alleged to have had sexual intercourse with the complainant without her consent. The events of the evening in question included their drinking with others at a hotel, the complainant’s return, somewhat intoxicated, to her house, her falling asleep, her alleged assault by the appellant, her getting up and later meeting with her boyfriend when he returned from the hotel, her then going to bed with her boyfriend some hour or so after the alleged assault, and her complaint to her father on the following afternoon of the alleged intercourse without consent. The event relied on as forming part of a connected set of circumstances was the fact of the complainant having sexual intercourse with her boyfriend shortly after the alleged offence.

31. [49]

    As Mahoney JA recorded (at 551), the Crown called evidence to show what had occurred from a point in time before the alleged offence to when complaint was first made to the father on the following afternoon. The evidence of the complaint was relied on to show that the complainant’s conduct up to that time was “consistent” with the offence having occurred (see R v Lillyman [1896] 2 QB 167 at 170 (Hawkins J)). Thus, on the Crown case the connected set of circumstances included conduct subsequent to the offending which was consistent with the complainant’s evidence. The Court held that the complainant’s sexual intercourse with her boyfriend formed part of that “connected” set of circumstances, it being sufficiently proximate in time to the alleged offence to call into question whether it had occurred. Thus it was an event “making the occurrence of the offence less likely” (Mahoney JA at 551) and one “against which the complainant’s evidence might reasonably be evaluated” (Gleeson CJ at 544).

32. [50]

    In this case the Crown relied on the genital exploration evidence as conduct of the complainant “consistent” with the offences having been committed, that conduct occurring in the car on the way home from the day care centre about 10 days or so before the first complaint, as well as on earlier occasions during the period of the alleged offending. Here, on the Crown case, a connected set of circumstances included those in which the alleged offences were committed as described by the complainant, her first complaint on 30 December 2017, and her parents’ earlier observations of that conduct. They were “connected” because the making of the complaint, and the complainant’s earlier genital exploration, particularly that observed by her mother in the car in mid-December 2017, were said to be consistent with the charged conduct.

33. [51]

    The prospective evidence would provide an alternative and innocent explanation for why the complainant might have been observed displaying an interest in her genitals in and before December 2017. Unlike the position in R v Morgan, that evidence would not be directly “inconsistent” with the charged offences having occurred. However, it would indirectly bear on the jury’s assessment of that question because it was capable of explaining away evidence relied on as making it more likely that the offending occurred. On the defence case that evidence was part of the “connected” circumstances relied on by the Crown, and it was necessary to take them into account if those circumstances were to be fairly evaluated by the jury.

34. [52]

    This conclusion is consistent with the more general observations of Beech-Jones J in GEH v R at [83], which in turn refers to the earlier review of relevant authorities in the judgment of Harrison J (at [35]-[48]):

35. [53]

    Accordingly, in my view the trial judge erred in treating the prospective evidence as inadmissible or likely to be inadmissible when rejecting defence counsel’s voir dire application.

36. [54]

    In the course of oral argument the parties were given leave to make supplementary written submissions directed to “the operation of s 293 in relation to a voir dire”. The Crown submits that s 293(5)(b) prevents evidence that “is or may be admissible under subs (4)” being led from a witness on a voir dire hearing, unless the court has “previously decided that the evidence would, if given, be admissible” in the trial. As the applicant points out, if s 293(5) applies to a voir dire examination, the admissibility of such evidence in the trial would have to be determined by the court in the absence of the jury and by reference to written statements or summaries of the evidence of the prospective witnesses, but not, it would seem, in a hearing in which those statements or summaries were be tendered in evidence, if only for the purpose of identifying them. That would be a consequence of construing the exclusionary rules in ss 293 (2) and (3) as addressing the “admissibility” of evidence in proceedings other than those in which the issue whether the prescribed offence was committed is being tried.

37. [55]

    As well as describing the proceedings prosecuting the offence before a judge and jury, or judge alone, “proceedings in respect of a prescribed sexual offence” includes “committal proceedings” (see s 290(1)). Sections 293(2) and (3) make particular evidence “inadmissible”. To describe evidence as “inadmissible” is to say that it may not be taken into account by a fact-finder in determining questions of fact in proceedings. Sometimes questions of admissibility in turn require separate hearings to determine issues of fact on which the admissibility of particular evidence depends. Those hearings may be conducted before or during a trial.

38. [56]

    Sections 293(7) and (8) make clear that subs (2) and (3) are concerned with the admissibility of evidence in the substantive proceedings prosecuting the prescribed sexual offence, and that subs (5) and (6) are concerned with the application of those provisions to the giving of oral evidence in those proceedings. They (subs (7) and (8)) provide that on any trial for such an offence, questions as to the application of the exclusionary provisions in subs (2) and (3), or the exceptions to the latter in subs (4), are to be decided “in the absence of the jury”. Where such evidence is ruled to be admissible, subs (8) then requires that the nature and scope of that evidence be recorded before it is “given”. The procedure contemplated is a voir dire examination in which the relevant evidence will be identified and its admissibility ruled on. Once that has occurred the evidence will be “given” in the trial.

39. [57]

    The subject matter of subs (6) is the scope of the cross-examination of the complainant in the trial, which may extend to sexual experience or activity of the complainant “disclosed or implied in the case for the prosecution”. That so-called “right to cross-examine” under subs (6) is to be decided by the court in the absence of the jury. Finally, s 293(5)(b) permits evidence to be “given” at the trial, provided the court has previously decided under subs (7) and (8) that “the evidence would, if given, be admissible”.

40. [58]

    For these reasons, the exclusionary rules in ss 293(2) and (3) do not apply to the adducing of evidence in a voir dire held for the purpose of deciding its admissibility under ss 293(7) and (8).

41. [59]

    In the result, the trial judge’s ruling denied the applicant the opportunity to establish and lead evidence that if available and given would have been relevant as providing an innocent explanation for the genital exploration evidence. That prospective evidence, as then described, was not likely to be inadmissible under s 293(3) and, if inadmissible, was likely to fall within the exception in s 293(4)(a). In those circumstances the Crown does not suggest that the probative value of such evidence would not, for the reasons submitted by the applicant, have been likely to outweigh any distress, humiliation or embarrassment that the complainant might have suffered as a result of its admission. If available, that evidence would have been of innocent one-way or mutual explorative touching of genitals by her as a very young child, and was not likely to cause her distress, either at the time the evidence was led or subsequently.

42. [60]

    Where there was no direct evidence apart from that of the complainant to substantiate her allegations, the exclusion of the prospective evidence, if established, left the jury with an incomplete picture of the circumstances in which complainant’s behaviour was to be assessed and understood. For that reason, the trial judge’s decision not to permit the voir dire examination occasioned a miscarriage of justice. The Crown does not contend, that being the position, that this is a case in which “no substantial miscarriage of justice has actually occurred” so as to attract the operation of the proviso in Criminal Appeal Act, s 6(1).

43. [61]

    That miscarriage of justice is remedied by an order for a new trial rather than the entry of a verdict of acquittal: see Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104] (Gaudron, McHugh, Gummow and Hayne JJ); and Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [75]-[81] (French CJ, Bell, Gageler, Keane and Gordon JJ).

44. [62]

    Accordingly, leave to appeal on ground 1 should be granted and the appeal allowed. The applicant’s convictions on each of the charges should be quashed, and a new trial ordered.

Ground 2

1. [63]

   The applicant contends that the trial judge’s directions as to the use that could be made of the evidence of the complainant’s conduct in the period before her first complaint were inadequate. That behaviour had two parts. First, in the period from about October to December 2017, the complainant was reluctant to go to day care, and on occasions was upset and cried when being dropped off. Oral evidence to this effect was given by the complainant’s parents, her mother accepting that there had been no reference to any such occasions in her statement to the police. The complainant’s father gave evidence that, from about October 2017, her behaviour had “suddenly” changed and that from that time she cried “like she doesn’t want to go”. The second was her conduct involving the “genital exploration” behaviour, the most significant being her behaviour in the car on the way home from the day care centre 10 days or so before the end of December 2017.

2. [64]

   The applicant submits that the trial judge “gave no directions about how the jury should consider this evidence or how the evidence could be used in furtherance of the prosecution case”. The following are the directions which it is contended should have been given:

3. [65]

   In its final address the Crown described this evidence, and the complainant’s disclosure of the charged conduct to her mother on 30 December 2017, as “complaint evidence” and as “three areas you can use as complaint”. The applicant does not suggest that the trial judge should have given any specific direction in relation to this wrong description of the evidence in question. However, that the Crown did so is to be taken into account in determining whether the jury was given adequate directions as to the possible use that could be made of that evidence.

4. [66]

   In closing submissions, the Crown identified the three areas of “complaint evidence” as follows. The first was “the sexual exploration that she was doing of her own vagina, and we heard that from her mother and father, that it started weeks before and obviously leading up to the disclosure that she made. So that’s the first evidence that you can use in support of what [the complainant] said.” The second was the evidence of complaint, namely the complainant’s mother’s evidence of the disclosures made by the complainant to her on 30 December 2017. The third “piece of evidence that the Crown says is complaint evidence” and “supports [her] complaint” was her “being upset when her father was dropping her off to the day care”.

5. [67]

   As to the use the jury could make of that evidence by the jury, the Crown said:

6. [68]

   Defence counsel did not take issue with the Crown’s description of all of this evidence as “complaint” evidence. Her response to it in final address included:

7. [69]

   In the summing up, the trial judge stressed the need for the jury to be satisfied beyond reasonable doubt that the complainant was a reliable witness and that unless the jury were so satisfied they could not find the accused guilty on any count. Her Honour continued:

8. [70]

   The trial judge used the description “complaint evidence” to refer only to the evidence of the complainant’s disclosure to her parents, and not to the other evidence about her conduct. Her Honour went on to give detailed directions with respect to the use that could be made of that “complaint evidence”. Those directions included:

9. [71]

   At the conclusion of her summing up, the trial judge referred to the arguments made in closing address in respect of the evidence that is the subject of this ground:

10. [72]

    In closing address, the jury was invited to use the conduct evidence “in support of” the complainant’s evidence and as evidence “of the truth” of what she said. When doing so, the Crown described that evidence, and the evidence of the complainant’s first complaint to her parents, collectively as “complaint evidence”. That description was wrong. However defence counsel did not request the trial judge to correct it, either before or after the summing up. Instead counsel addressed the Crown’s reliance on those two aspects of the so-called “complaint evidence” for what it was, namely “other evidence that might support the existence of such an assault”.

11. [73]

    In doing so, defence counsel highlighted the respects in which the evidence suggested there was no connection, or no necessary connection, between the complainant’s conduct and the alleged offending.

12. [74]

    In the case of the genital exploration evidence, counsel highlighted the period during which the conduct was said by the complainant’s parents to have occurred, posing the following questions as to be considered by the jury before the evidence might be used in support of the Crown case:

13. [75]

    With respect to the evidence as to the complainant’s “sadness or being upset” when attending the day care centre, counsel emphasised the applicant’s wife’s evidence, based in part on what she had been told by the complainant, which, it was suggested, explained why she was upset on the last day that she attended the centre. “Her explanation included that the brother had gone to the shopping and the young girl was there. No one else was there that day, unusually, and so she was sad.”

14. [76]

    In responding to the Crown’s reliance on the evidence of this conduct, defence counsel then exposed to the jury the reasoning which that reliance engaged:

15. [77]

    In answer to that reasoning, counsel pointed to the applicant’s wife’s evidence, which provided an innocent and plausible explanation for why the complainant may have been sad on that last day, as well as her evidence that she had not in the months preceding that incident observed the complainant to be sad or to have been crying every day she arrived at the centre, which was the effect of her father’s evidence.

16. [78]

    As appears earlier, in her summing up the trial judge dealt with these three aspects of the evidence separately, and gave the usual direction with respect to the use of the complaint evidence and significance of any delay in the making of complaint. Finally, in referring briefly to the arguments and submissions of the Crown and defence counsel, the trial judge referred to defence counsel’s submission that there was no “connection” or “link” between the conduct and the alleged offending.

17. [79]

    It is not obvious in my view that the jury required any further direction in relation to the Crown’s use of the evidence concerning these two aspects of the complainant’s conduct. The question was whether in either of those aspects the conduct supported the complainant’s account. In each case it could not do so unless the jury was satisfied that the conduct was a consequence of the fact that she was being or had been sexually assaulted at the day care centre. A question for the jury was whether, having regard to the relevant evidence concerning that conduct, when the offending was alleged to occurred, that was an inference that could rationally be drawn from the proved facts. Defence counsel’s arguments were substantially directed to that question, and whether that inference should be drawn.

18. [80]

    However, whether such an inference should be drawn was not to be considered separately or in isolation from the other evidence. In that respect the position is stated by Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535; [1984] HCA 7:

19. [81]

    In the first of these paragraphs Gibbs CJ and Mason J accept that the evidence in a trial may have a cumulative effect and point out that it is the “duty of the jury to consider all the facts together at the conclusion of the case”. The second explains how that principle applies in a case “depending on circumstantial evidence”. See Shepherd v The Queen (1990) 170 CLR 573 at 580; [1990] HCA 56 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing).

20. [82]

    The present case is not one in which circumstantial evidence is relied on to prove the elements of the charged offences or to establish an intermediate fact which is indispensable to the drawing of an inference as to one or more of those elements. As the trial judge’s summing up made clear, the Crown case depended on the jury’s acceptance of the complainant’s evidence as reliable and credible. The conduct evidence was circumstantial evidence relied on to support the complainant’s evidence in the sense that it was said to render that other evidence more probable: see Doney v The Queen (1990) 171 CLR 207 at 211; [1990] HCA 51 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).

21. [83]

    The task of the trial judge in relation to the giving of instructions was expounded upon by Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]-[42]:

22. [84]

    It is submitted that the jury required a direction as to what “inferences could be arrived at from the evidence” and a direction explaining that any suggested inference should not be drawn unless it is the or a rational inference to draw from the proved facts.

23. [85]

    Although the Crown wrongly described the conduct evidence as “complaint” evidence, the defence arguments addressing that evidence and the trial judge’s summing up distinguished between it and the complaint evidence and made clear to the jury that the question in relation to the former was whether the conduct was sufficiently linked or connected with the alleged offending to support the complainant’s evidence.

24. [86]

    At the outset of the summing up, the trial judge explained that the role of the jury was to determine the facts on the basis of the evidence and that, in determining the facts, they must act rationally. It was also pointed out that in doing so the jury was expected to use its common sense, experience and understanding of people and human affairs.

25. [87]

    The issue for the jury was sufficiently clear. In considering whether the conduct evidence supported the Crown case they were required to act rationally in deciding whether there was a sufficient link or connection between the alleged acts and that conduct for the latter to bear on the likelihood of the offence having been committed.

26. [88]

    In circumstances where defence counsel did not take objection to or raise an issue in relation to the trial judge’s summing up or the Crown’s description of the conduct evidence as “complaint evidence”, it should be inferred that in the atmosphere of the trial it was sufficiently clear how the jury was to understand and use the evidence in question. That being the position, leave under r 4 to rely on ground 2 should be refused.

Conclusion

1. [89]

   In my judgment the following orders should be made:

   1. (1)

      Grant leave to appeal on ground 1.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the appellant’s convictions on counts 1, 2, 4, 5 and 6.

   4. (4)

      Order that there be a new trial.

2. [90]

   FULLERTON AND WILSON JJ: With respect to ground 1, we agree with Meagher JA that the evidence the applicant sought to adduce in cross-examination of the complainant’s parents, and evidence to be adduced from the applicant’s wife (described in MFI 7), was relevant. In our view, assuming the complainant’s parents confirmed the information attributed to them by the applicant’s wife, the evidence had the capacity to rationally affect the jury’s assessment of whether the complainant’s exploration of her own genitalia was a consequence of having been sexually assaulted by the applicant on one or more of the occasions the subject of the six counts on the indictment, by providing an alternative and innocent explanation for that observed behaviour.

3. [91]

   It is also our view that the trial judge did not rule on the relevance of the proposed evidence, having been given to understand that the only matter in issue between the parties was whether an exception to the prohibition on admissibility in s 293(3) of the Criminal Procedure Act applied. Defence counsel had conceded that the evidence of mutual touching of the complainant and her cousins and brother attracted the prohibition on admissibility in ss 293(3)(a) or (b), since it disclosed or implied that she had taken part in sexual activity or she had had sexual experience.

4. [92]

   As Meagher JA notes at [33], the applicant contends on the appeal that mutual genital touching by children, none of whom were older than seven years and who were cousins living in the same household, would not (or could not) disclose or imply that the complainant had taken part in sexual activity or had sexual experience. The applicant submitted that for the trial judge to have at least impliedly held the evidence was inadmissible under s 293 was an error.

5. [93]

   On the appeal, the Crown maintained the position taken at trial that the evidence of mutual touching in which the complainant engaged with her brother and cousins was sufficiently different from the complainant’s exploration of her own genitalia for that conduct not to disclose or imply that she had taken part in sexual activity or that she had sexual experience, while mutual genital touching had that character. On the available evidence, we do not accept that there is a sufficient basis for the Crown to have made that distinction at trial or for the Crown to have maintained that distinction on the appeal.

6. [94]

   It is our view, consistent with the analysis of Meagher JA at [54]-[58] as to whether s 293(5) operated to prevent evidence being given on the voir dire, and with the conclusion reached by his Honour at [59]-[61], that the admissibility of the evidence could not, in the particular circumstances of this case, be determined in the absence of hearing the evidence of the three adult witnesses on the voir dire.

7. [95]

   The evidence in the applicant’s wife’s statement was not specific as to when the conduct encompassed by the concept of mutual genital touching by the children was reported to her, or what was observed by the complainant’s parents and with what frequency it occurred, or what, if anything, the children were heard to say at the time. These issues, at the very least, had a direct bearing on whether the Court was satisfied that the statutory prohibition in s 293 applied to the evidence. It also had a bearing on whether the exception in s 293(4) operated to allow for the evidence to be admitted.

8. [96]

   It is important to recognise that the only account of the evidence of the conduct in question was the hearsay account of the applicant’s wife. Because of the approach taken at trial, no direct evidence of the conduct in question was adduced from the complainant’s parents. There was no evidence either adduced at trial or on the appeal as to whether either of them in fact made the observations the applicant's wife attributes to them and, if so, when those observations were made relative to the alleged offences.

9. [97]

   In those circumstances, although we accept that the evidence from the applicant’s wife was relevant, we prefer to express no concluded view as to whether evidence of mutual genital touching by the complainant and her brother and cousins was admissible because it was not subject to the statutory prohibition in s 293, or whether, if excluded by the provision, the exception in s 293(4) applied. There is insufficient evidence to determine those questions, the contents of MFI 7 being inadequate for the purpose.

10. [98]

    We do agree with Meagher JA, however, that leave to appeal on ground one should be granted and the appeal allowed because of what we regard as a miscarriage of justice constituted by the failure of the trial judge to convene a voir dire, in order that an informed ruling on the admissibility of the proposed evidence might be made in accordance with law. We also agree that the applicant’s convictions should be quashed and a new trial ordered.

11. [99]

    We would, however, wish to make some additional observations about the construction of ss 293(3) and (6).

12. [100]

    As Meagher JA has observed at [34], neither the concept of a complainant having, or possibly having, sexual experience under s 293(3)(a), or the concept of a complainant having taken part in, or possibly having taken part in, any sexual activity under s 293(3)(b), is defined. In our view, however, the concept of sexual experience or sexual activity of a general or specified nature where it is used in s 293(6)(a)(i) or (ii) does not inform what is comprehended by either the concept of sexual experience or of sexual activity for the purposes of the prohibition on admissibility contained within s 293(3).

13. [101]

    The operation of subsection (6) has a very limited application. It is confined to the particular circumstance where the court is satisfied that it has been disclosed or implied in the Crown case that the complainant has or may have had sexual experience (or a lack of it) of either a general nature or a specified nature, or it has been disclosed or implied in the Crown case that the complainant has or might have taken part in sexual activity (or not) of a general or specified nature, in either case either during a specified period of time or without reference to any period of time. In those circumstances, and where the court is satisfied that there is a risk of unfair prejudice to the accused because of the prohibition on admissibility of evidence of a complainant’s sexual experience or participation in sexual activity in s 293(3), cross-examination of the complainant will be permitted but limited to the information disclosed or implied whether that be of a general or specified nature.

14. [102]

    We nonetheless agree that a sensible construction of what is comprehended by a complainant’s sexual experience or the lack of sexual experience and/or what is comprehended by a complainant’s participation or possible participation in sexual activity may include experience or sexual activity of either a general or a specific kind, or both.

15. [103]

    We also agree with Meagher JA at [35] that a person’s participation in sexual activity ordinarily describes participation in an activity which relates to that person’s desire for sexual pleasure or from which sexual pleasure is derived, irrespective of whether that activity involves another person either being physically present and engaging in the activity or engaging in the activity virtually. For example, a teenage complainant would seem to us to be properly regarded as having taken part in sexual activity by taking erotic or sexualised photographs of him or herself and posting the photographs to a public website, while very young children, involved in the mutual touching of each other’s genitalia that does not extend beyond playful curiosity might not.

16. [104]

    In our view, however, it is not meaningful to speak of a complainant, particularly a very young child, having acquired sexual experience (that is, having had an experience of a sexual encounter) where the child has no awareness or memory of having engaged in sexual activity, passively or actively, from which it is said their sexual experience has been derived. Neither is it meaningful, in our view, to speak of a young child complainant having taken part in a sexual activity with another young child without a comprehension or awareness that the activity in which they engaged was sexual.

17. [105]

    We accept that a person, including a child, may acquire sexual experience for the purposes of the statutory prohibition on admissibility in s 293(3)(a) where the sexual activity from which the sexual experience was derived was either without the consent of that person or, if the person is a child, where consent is irrelevant. We also accept, consistently with the authorities, that a person will or might possibly take part in sexual activity, again for the purposes of the statutory prohibition on admissibility in s 293(3)(b), where the sexual activity in which they are said to have taken part occurred in the course of the perpetration of a sexual assault or an indecent touching.

18. [106]

    In either case, however, it is not meaningful, in our view, to describe a complainant’s acquisition of sexual experience, or his or her participation in sexual activity, as necessarily deriving from or relating to a desire for sexual pleasure or motivated by sexual desire of another person including, in particular, a sexual assailant. A sexual assault, indecent assault, or indecent touching may have nothing whatsoever to do with the pursuit of sexual desire or pleasure, as those concepts are ordinarily understood, but instead constitute a deviant desire for physical control of another person, or the gratuitous infliction of sexual violence upon that person.

19. [107]

    Finally, while we agree with Meagher JA at [38] that there can be only one correct answer to whether particular evidence discloses or implies that the complainant has or may have had sexual experience or has or may have taken part in sexual activity, we are of the view that there is no need to appeal to what a reasonable person would consider to be evidence of that kind, or that a reasonable person test is open on the construction of s 293(3), having regard to the statutory language and the statutory context in which the question of admissibility arises. We prefer to treat the question with which s 292(3) is concerned as a question of admissibility to be resolved according to ordinary evidential principles, informed by the language of the section in which the question of admissibility arises, difficult questions of construction notwithstanding.

20. [108]

    In this case, the question of whether the evidence of mutual touching by the complainant and her young brother and cousins was admissible and, if not, whether the exception in s 293(4) applied, required consideration of the evidence after it had been appropriately adduced and tested on the voir dire, including, were the parties to consider it appropriate, by adducing evidence from a child psychologist or other relevant expert.

21. [109]

    By this ground the applicant contends that the trial judge’s directions to the jury with respect to two aspects of the evidence led by the Crown, purportedly as a species of complaint evidence, were inadequate. That evidence involved the complainant’s conduct in examining her genital area, something that she had not been observed to do prior to sometime in 2017 (whether that be as early as October 2017 in accordance with the complainant's father's evidence, or June of that year in accordance with her mother’s evidence); and a newly exhibited reluctance to attend the day care centre at the applicant’s home in the days or weeks prior to 30 December 2017, when she first complained to her mother that the applicant had been touching her.

22. [110]

    Although it is difficult to see how this evidence could amount to evidence of complaint, as that concept is generally understood in trials involving allegations of sexual or indecent assault, the Crown opened its case describing it as evidence of complaint. Counsel for the applicant at trial raised no objection to that approach.

23. [111]

    As Meagher JA observed at [14] the evidence of the complainant touching or exploring her genitalia was given by both of the complainant’s parents. The complainant’s mother gave evidence that, on an occasion when they were driving home from day care, prior to the disclosure made to her on 30 December 2017, she noticed her daughter

24. [112]

    In cross-examination the complainant’s mother clarified that the complainant had pulled her underpants down to her knees prior to touching her vagina.

25. [113]

    She told the complainant not to touch herself. The child responded, “I want to see”.

26. [114]

    The complainant’s mother thought that she observed this conduct in the car about one week to ten days before 30 December 2017. She said a similar thing occurred when the complainant was at home seated on a sofa, and there were as many as five other occasions when she saw her daughter behave in this way prior to the complainant telling her about the applicant touching her. Although she thought this conduct occurred over a period of about six weeks prior to the disclosure, she later clarified that it could have been in June, July, or August 2017 that she first observed her daughter touching herself.

27. [115]

    The complainant’s father gave evidence of a similar nature, deposing that, in around October, November, or December 2017 he noticed the complainant sitting alone touching her vagina on a couple of occasions. He did not have any other daughters and did not know whether such behaviour was normal or not, but did not understand it. It was soon after he made these observations that his wife told him of the complaint that their daughter had made to her concerning the applicant.

28. [116]

    The second species of “complaint evidence” relevant to this ground is evidence of the complainant’s unwillingness to attend day care in the period before the complaint was made, and her distress when attending.

29. [117]

    The complainant’s mother said that the applicant was frequently the person who was present when she dropped her daughter at day care, with his wife being away shopping or attending to some other task. In cross-examination she added that, on those occasions when the applicant opened the door, “my daughter’s sometimes crying not to go”. When asked whether that information had been included in the statement she had earlier made to police, she said,

30. [118]

    Having conceded that this information might not have been recorded in her statement, the complainant’s mother maintained that,

31. [119]

    She denied that she was endeavouring to portray the applicant in a poor light in deposing to matters not recorded in her police statement.

32. [120]

    The complainant’s father told the jury that, from early 2016, he regularly dropped his daughter off at day-care, leaving her with the applicant on average, once weekly. He thought that amounted to about fifty occasions on which he left his daughter in the applicant’s care, rather than in the care of the applicant’s wife.

33. [121]

    In the period about October to December 2017 he noticed that his daughter’s behaviour on being dropped off at day care “suddenly” changed. He said,

34. [122]

    The complainant’s father said that he had not at the time known why his daughter cried during the drive to day care and, when he asked her why, she simply said that she didn’t want to go.

35. [123]

    In addressing the jury at the close of the evidence, the Crown Prosecutor referred the jury to “three areas [of evidence] that you can use as complaint”. She said,

36. [124]

    There was no issue taken by the applicant’s counsel either prior to the admission of the evidence, or after the Crown’s closing address, as to the capacity of the evidence of genital exploration and/or the evidence of distress on attending day care to “go to the truth” of what the complainant alleged against the applicant.

37. [125]

    Although the trial judge summarised this evidence during the course of the summing up, no direction was given as to how it should be approached by the jury in the context of the single issue at trial, namely whether the evidence of the complainant could satisfy the jury beyond reasonable doubt of the applicant's guilt on some or all of the six counts on the indictment. Importantly, in the directions given about complaint evidence, the trial judge did differentiate between the capacity of the complainant’s verbal disclosure to her parents to support her credibility and reliability, and what were said to be changes in her behaviour as having that same capacity. The trial judge did not, however, correct the Crown Prosecutor’s erroneous statement that the evidence of changes in behaviour went to the truth of the allegations.

38. [126]

    Grouping that evidence with the evidence of the verbal complaints made on 30 and 31 December 2017, her Honour said,

39. [127]

    Her Honour then dealt with the evidence of the verbal disclosure made to the complainant’s mother on 30 December 2017, and to both of her parents the following day. She directed the jury in conventional terms that if the jury was satisfied that complaint had been made with reasonable immediacy to the alleged offences, it was “evidence of the truth of what the complainant alleged”, and evidence which could support the credibility of her account of events, in that it was conduct consistent with what might be expected of a person who had been assaulted in the way complained of.

40. [128]

    There was no request from the applicant’s counsel for anything different, or anything more, to be said to the jury by the trial judge about the evidence of genital exploration or the evidence of distress and how that evidence might be used by the jurors, were they to be satisfied of the events described.

41. [129]

    In this Court, the applicant complains that the trial judge's directions were inadequate, and that a miscarriage of justice has resulted. He submits that it was incumbent upon the trial judge to direct the jury as to the use the jury might make of what were, properly characterised, two pieces of circumstantial evidence in reasoning to verdicts, including by directing the jury as to how to approach the drawing of inferences and the need for caution before doing so, and by cautioning that the evidence of changes to the complainant's behaviour was only relevant if the jury could be satisfied that it could be directly linked to the alleged offences, in the sense that there was no other explanation for it other than as a non-verbal complaint.

42. [130]

    Rule 4 of the Criminal Appeal Rules applies to this ground of appeal.

43. [131]

    The Crown argues that, taking the summing up as a whole, the jury was adequately directed that it needed to be satisfied beyond reasonable doubt of the complainant’s evidence before returning a verdict or verdicts of guilty, and of the need to examine her evidence carefully to determine whether it could be accepted beyond reasonable doubt. The Crown points to the failure of trial counsel to seek any redirection on these two aspects of the evidence, or to seek re-directions on the issue of evidence of complaint, as supportive of the submission that the trial judge’s directions did not give rise to a miscarriage of justice.

44. [132]

    In our view, it was not open to the Crown to lead the evidence of genital exploration and the evidence of distress as “complaint evidence”, and by that characterisation to rely upon it in the same way as it was entitled to rely upon the evidence of recent (verbal) complaint adduced through the complainant's parents.

45. [133]

    Evidence of a complaint made when the events complained of are “fresh in the memory” is capable of being used as evidence probative of the truth of the fact or facts asserted, pursuant to s 66 of the Evidence Act 1995 (NSW). In our view, in the absence of appropriate expert evidence, the admission of evidence of observed behavioural changes in a child cannot equate to complaint made when the subject of complaint was fresh in the mind. Behaviour is not in any comprehensible sense “fresh in the memory”; it is not something remembered, but rather something manifested, in this instance by distress and by genital exploration.

46. [134]

    That said, we note that trial counsel took no objection to the evidence being adduced for that purpose, and did not at any stage dispute the Crown’s characterisation or use of the evidence, or seek re-directions from the trial judge.

47. [135]

    It is essential to the administration of criminal justice that the basis upon which evidence is admitted in a criminal trial, and the use to which it may be legitimately put by the jury, together with any limits on its use, are appropriately identified, to the parties in the course of the litigation, and to the jury in its deliberations. Counsel have a particular responsibility in this regard.

48. [136]

    Counsel for the Crown should be able to clearly articulate how the evidence to be led in its case is admissible, and to what use it is to be put. Counsel for an accused person is expected to be aware of the evidence to be adduced by the Crown, and to take a considered and timely objection to any evidence which requires an evidential ruling, whether as to its admissibility, or any limitations on use, including the purpose or purposes for which the evidence is led in the context of the issues that have crystallised. That should be done prior to closing addresses, but it must be done before the trial judge’s summing up commences. Those considerations inform the trial judge’s summation to the jury. Counsel should also be in a position to assist the trial judge in ensuring that all necessary directions are given to the jury. The trial judge did not receive that assistance at the applicant’s trial.

49. [137]

    The evidence of genital exploration, and of the complainant’s distress at attending day care, should not have been used by the Crown or left to the jury, as evidence going to the truth of the allegations made by the complainant, in the absence of careful directions by the trial judge as to how the jury should approach an assessment of that evidence in the light of the issues that had to be determined.

50. [138]

    It is not that the evidence was wholly inadmissible. The applicant under this ground of appeal does not seek to make that case. We accept that were the jury satisfied, on the whole of the evidence, and after having heard submissions from counsel and under direction from the trial judge, that observed changes in the complainant's behaviour did, in fact, support the reliability of the complainant’s evidence, then that evidence was capable of being evidence probative of guilt. However, where the Crown Prosecutor indiscriminately grouped the evidence of observable changes in the complainant's behaviour, with evidence of actual (verbal) complaint, and suggested to the jury that each piece of evidence supported the truth of the allegations, and where this was not corrected or qualified by the trial judge, Rule 4 should not stand in the way of the verdicts being quashed.

51. [139]

    It was necessary, having regard to the issues at trial, for the trial judge to highlight the cautious approach that the jury was required to adopt in drawing inferences about the evidence, particularly in circumstances where the Crown had placed some degree of emphasis on the importance of the evidence in supporting its case. In each instance, the evidence was only capable of supporting the reliability of the complainant’s evidence of having been sexually abused or indecently assaulted by the applicant if the jury were able to infer that the conduct occurred as a consequence of the abuse alleged, and that there was no reasonable or innocent explanation for it.

52. [140]

    It was essential in our view for the trial judge to draw the jury's attention to the width of the timeframe averred in each of the charges on the indictment, being between 1 January 2015 to 30 December 2017, since the breadth of that timeframe might have undermined the capacity of the evidence of observable changes in the child’s conduct or behaviour to support the Crown case. To put it more directly, it was incumbent upon the trial judge to have directed the jury of the need to carefully consider the probative value of evidence of changes in the complainant’s behaviour in proof of the applicant’s guilt of some or any of the charges, beyond reasonable doubt.

53. [141]

    The jury should have been directed as to the care needed in considering whether that inference was rational and capable of being safely drawn.

54. [142]

    In the particular circumstances of this trial, and where the applicant had been denied the possibility of fully exploring the meaning and significance of the evidence of genital exploration, and adduced by the Crown for a specific purpose, the absence of what we considered to be essential directions by the trial judge resulted in an unfairness to the applicant, which could have led to a miscarriage of justice.

55. [143]

    Although Rule 4 applies to this ground we would nevertheless grant leave to advance it. This ground of appeal is also made out.

56. [144]

    We would grant leave to advance both ground 1 and ground 2. We otherwise agree with the orders proposed by Meagher JA, that the applicant’s conviction on each of the charges should be quashed, and a new trial ordered.