Adamson (a pseudonym) v The King

Case [2024] SASCA 91

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ADAMSON (A PSEUDONYM) v THE KING

[2024] SASCA 91

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby)

1 August 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS

Following a trial by judge alone, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).

The appellant appeals on two grounds, each of which challenges the trial judge’s directions in relation to evidence of discreditable conduct adduced at trial. The first ground relates to evidence as to the appellant’s domestic violence against the complainant’s mother (‘the domestic violence evidence’). The second ground relates to the complainant’s evidence that on two occasions, the appellant made sexual comments towards her (‘the sexual comments evidence’). The appellant contends that the trial judge failed to comply with his obligation under s 34R(1) of the Evidence Act 1929 (SA) to identify and explain the permissible and impermissible uses of that evidence.

Held, per the Court, granting permission to appeal in relation to Ground 2 and allowing the appeal on Grounds 1 and 2:

1.The trial judge failed to adequately identify and explain the impermissible use of the domestic violence evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA);

2.The trial judge failed to adequately identify and explain the permissible use of the sexual comments evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA); and

3.This is not an appropriate case to apply the proviso to the common form appeal provisions in s 158(2) of the Criminal Procedure Act 1921 (SA).

Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) ss 158(1)(b), 158(2); Evidence Act 1929 (SA) ss 13C, 34P(1), 34P(2), 34Q, 34R(1), referred to.
AK v Western Australia (2008) 232 CLR 438; Carr (a pseudonym) v The King [2024] SASCA 69; Collins v The Queen [2020] SASCFC 96; Filippou v The Queen (2015) 256 CLR 47; Hammer v The Queen [2022] SASCA 75; HCF v The Queen (2023) 97 ALJR 978; Hofer v The Queen (2021) 274 CLR 351; Huxley v The Queen (2023) 98 ALJR 62; JGS v The Queen [2020] SASCFC 48; Kalbasi v Western Australia (2018) 264 CLR 62; Kane (a pseudonym) v The King [2024] SASCA 70; Magro v The King [2022] SASCA 100; McPhillamy v The Queen (2018) 92 ALJR 1045; MDM v The Queen (2020) 136 SASR 360; R v MDP [2023] QCA 134; OKS…

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Adamson (a pseudonym) v The King [2024] SASCA 91
Case
[2024] SASCA 91
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the appellant against his conviction for maintaining an unlawful sexual relationship with a child. The prosecution alleged that between 1999 and 2003, the appellant engaged in numerous unlawful sexual acts with the complainant, SB, who was between 10 and 12 years of age at the time. The appellant's relationship with SB's mother, LK, ended when SB was approximately 12 years old. The appellant had been tried twice previously before a jury, with neither trial resulting in a verdict. The third trial proceeded before a judge alone, who convicted the appellant based on the evidence of SB, which was admitted via an audio-visual record from the second trial.

The appeal raised two grounds. The first ground challenged the trial judge's directions regarding the use of evidence of domestic violence perpetrated by the appellant against SB's mother, arguing that the judge failed to adequately explain the purposes for which this evidence could not be used, contrary to section 34R(1) of the *Evidence Act 1929* (SA). The second ground contended that the trial judge misdirected himself as to the permissible use of evidence concerning sexual remarks made by the appellant to SB. These grounds concerned the admissibility and use of discreditable conduct evidence under Division 3 of Part 3 of the *Evidence Act*.

The Full Court found that both grounds of appeal were made good. The Court explained that under section 34R(1) of the *Evidence Act*, a trial judge must identify and explain the purposes for which discreditable conduct evidence may and may not be used. The Court determined that the trial judge had failed to adequately discharge this obligation in relation to both the domestic violence evidence and the sexual comments evidence. Consequently, the Court concluded that the conviction was unsafe and that it was not a proper case to invoke the proviso to the common form appeal provisions.

The Full Court allowed the appeal, quashed the conviction, and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, both grounds have been made good and this is not a proper case in which to invoke the proviso to the common form appeal provisions in s 158(2) of the Criminal Procedure Act 1921 (SA). It follows that the appeal should be allowed, with an order for a retrial.Background In 2018, the appellant was charged with maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act. In summary, it was alleged that, between 1999 and 2003, while in a relationship with LK, the appellant engaged in numerous unlawful sexual acts with LK’s daughter, SB. Consistently with the particulars alleged in the information, SB gave evidence to the effect that the appellant:(a)frequently put his hand down her pants and touched her vagina; (b)inserted his penis into her vagina on more than one occasion, including an occasion while she was sleeping, and an occasion in a car while pulled over at a truck stop;(c)took her hand and placed it inside his track pants and onto his penis;(d)instructed her to take her clothes off and clean her brother’s room while he lay on a bed and watched; and(e)instructed her to sit on his bed and watch pornography. When the offending occurred, SB was aged between 10 and 12 years of age, and the appellant was aged between 35 and 37 years of age. The appellant’s relationship with LK ended when SB was about 12 years of age. The charge of maintaining an unlawful sexual relationship was first tried before a jury in 2020. SB gave evidence by audio-visual link. The jury was unable to reach a verdict. In 2021, there was a second trial, before a different judge, but again sitting with a jury. SB gave evidence by audio-visual link, and a record of her evidence was taken pursuant to s 13C of the Evidence Act. The jury was again unable to reach a verdict. In 2023, there was a third trial. This time the trial proceeded before a judge (‘the primary judge’) sitting without a jury. The third trial was essentially a trial ‘on the papers’. An audio-visual record of SB’s evidence from the second trial was received in evidence pursuant to s 13D of the Evidence Act. The transcript of the balance of the evidence from the second trial was tendered by consent, and closing addresses were made. In late 2023, the primary judge convicted the appellant of the offence charged, and published his reasons for verdict.[1][1] R v JMSA [2023] SADC 130 (‘Reasons’).The evidence at trial The prosecution case was based on the evidence of SB. SB first came in contact with the appellant when her mother, LK, commenced a relationship with the appellant. She was about three years of age at the time. At some point prior to SB commencing primary school (at the age of five), the appellant commenced to live with LK and SB. The appellant and LK had two children together, JA and DA. When SB was about 10 years of age, she and her family moved to Keith. On SB’s evidence, the appellant commenced to sexually abuse her while they were living in Keith.

Evidence

Evidence Before The Court

In late 2023, the primary judge convicted the appellant of the offence charged, and published his reasons for verdict.[1][1] R v JMSA [2023] SADC 130 (‘Reasons’).The evidence at trial The prosecution case was based on the evidence of SB. SB first came in contact with the appellant when her mother, LK, commenced a relationship with the appellant. She was about three years of age at the time. At some point prior to SB commencing primary school (at the age of five), the appellant commenced to live with LK and SB. The appellant and LK had two children together, JA and DA. When SB was about 10 years of age, she and her family moved to Keith. On SB’s evidence, the appellant commenced to sexually abuse her while they were living in Keith. SB gave evidence of frequent indecent assaults. She said that the appellant would get into her bed at night, put his hands down her pants and touch her vagina. She said that this touching happened frequently. She could not say how often, but estimated a couple of times per week, and said that it occurred more than 10 times. SB also described an occasion when she woke to ‘what felt like him pulling his penis out of my vagina’. SB gave evidence of an occasion at their Keith address when the appellant took her into JA’s bedroom and made her take her clothes off. The appellant lay on the bed, and watched SB as she cried. SB tried to put a blanket around herself, but the appellant took it away from her. There was a further occasion at that address when the appellant made SB watch pornography with him. There were also two occasions at that address when the appellant made sexual comments about SB in her presence. The first of these involved the appellant pointing to a picture of a woman and saying to SB that he ‘wanted [her] to come back with tits like that’. The second involved the appellant saying to SB ‘first I’m going to teach you how to work on cars and then I’m going to teach you how to have sex’. The appellant’s relationship with LK ended when SB was about 12 years of age. LK, SB and her two siblings (JA and DA) moved to an address in Murray Bridge. The appellant continued to live in Keith, but occasionally visited the Murray Bridge address. On one occasion when the appellant visited, he took SB, JA and DA on a road trip. At night, they pulled over into a truck stop. The appellant asked SB to pull her pants down and to get onto her hands and knees, like she was giving her siblings a horse ride. SB did as she was instructed, and the appellant inserted his penis into her vagina. In giving evidence about this ‘car trip incident’, SB said that the appellant threatened her by saying that he would beat her mother with an 8 ball cue that he had in the boot of the car if she did not do as he asked. SB said that she believed the appellant as she had seen what he had done to her mother in the past. This was consistent with SB’s evidence of the violence she had seen the appellant inflict upon LK. She described three instances of significant violence. One involved the appellant punching LK, resulting in her receiving a broken nose and being taken to hospital in an ambulance. The second involved the appellant dragging LK by the hair down some steps. The third involved the appellant punching LK with sufficient force to cause her to fall backwards and hit her head on the corner of the stove. SB described other occasions when she heard the appellant and her mother arguing, and other sounds (‘thuds’) and subsequent tears by her mother, consistent with further violence towards her mother. SB denied the suggestion put to her in cross-examination that each of LK and the appellant ‘gave as good as they got’; she said she had never seen her mother be violent towards the appellant.

Decision

Reasons for decision

The trial judge concluded his reasons with the following:[10][10] Reasons at [200]-[207] (citations omitted).ConclusionTo state what must be obvious, the task involved in considering the evidence and determining the charges, is to ultimately consider the evidence and make a finding as to whether or not the prosecution has proved each element of a charged offence beyond reasonable doubt.As I have said, I accept the complainant as a truthful and reliable witness. I accept her account of events beyond reasonable doubt.I find that the accused committed two or more, indeed many more, acts of indecent assault by getting into bed with the complainant late at night, and touching her vagina.I find that the accused committed both acts of gross indecency in the circumstances deposed to by the complainant. Her account of each was detailed and compelling.As to the first act of unlawful sexual intercourse, I am unable to find beyond reasonable doubt on the evidence of the complainant that the accused penetrated the complainant’s vagina with his penis on that occasion. I find however that the accused had at least inserted his penis between the complainant’s legs, after pulling her clothing down below her buttocks. I find beyond reasonable doubt that in doing so he committed another indecent assault.I find beyond reasonable doubt that on the car trip to Adelaide the accused penetrated the complainant’s vagina with his penis, albeit briefly, and that he thereby committed an act of unlawful sexual intercourse.I find beyond reasonable doubt that the accused committed an indecent assault during the mattress incident by taking the complainant’s hand and placing it on his penis.It follows that I find the charged offence proven beyond reasonable doubt and must therefore return a verdict of guilty.Grounds of appeal As mentioned, the appellant relies upon two grounds of appeal, the first challenging the trial judge’s directions in relation to the domestic violence evidence, and the second challenging his directions in relation to the sexual comments evidence:1. The learned trial judge erred in law by failing to identify and explain the purposes for which the evidence of the appellant’s violence may not be used, contrary to s 34R(1) of the Evidence Act 1929 (SA) (see [179] of the Reasons).2. The learned trial judge erred in law by misdirecting himself as to the use that could be made of the evidence that the appellant had made remarks of a sexual nature to the complainant (see [180] of the Reasons). Before addressing these grounds more directly, it is appropriate to make some general observations about a trial judge’s obligations under s 34R(1) of the Evidence Act.A trial judge’s obligations under s 34R(1) of the Evidence Act Division 3 of Part 3 of the Evidence Act contains various provisions relating to the admissibility and use of discreditable conduct evidence. Of particular significance in the present case are ss 34P, 34Q and 34R. They relevantly provide as follows:34P—Evidence of discreditable conduct(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and(b) is inadmissible for that purpose (impermissible use); and(c) subject to subsection (2), is inadmissible for any other purpose.(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.(3) …(4) … (5) … 34Q—Use of evidence for other purposesEvidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.34R—Trial directions(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.(2) …

Ratio Decidendi

Legal Principle Established

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