Anderson (a pseudonym) v The King

Case [2024] SASCA 36

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ANDERSON (A PSEUDONYM) v THE KING

[2024] SASCA 36

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

28 March 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS

CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS

The appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, his biological daughter, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The offending allegedly occurred when the complainant was between three and four years, and 10 years, across three locations commencing more than 20 years ago.

The complainant had difficulty identifying the dates and frequency of the offending.  Aspects of the complainant’s account were not mentioned until shortly before trial, and the complainant said that therapy caused her to have unblocked memories.  It was put to her that some of the offending could not have occurred at the times and places she described.

The prosecution called evidence from the appellant’s former wife who said that when the complainant was 21 she confronted the appellant about the allegations of sexual abuse in “the first telephone call” to which he said that he did not remember and he threatened suicide.  The prosecutor invited the jury to find that the appellant “backtracked” and minimised his opportunities for offending in his record of interview.  No directions were given about these “lies”.

The prosecution called three witnesses who gave “complaint” evidence pursuant to s 34M(3) of the Evidence Act 1929 (SA). Two of the complaints were made at least five and seven years after the first complaint. The complainant had forgotten about the first complaint, which was made when she was 13 or 14 years. The later complaints were made to different people and one was said to comprise an “elaboration” of the first complaint.

No objections were made and no directions were sought by counsel who appeared for the appellant at the trial.  The appellant sought permission to appeal on four grounds:

1.The verdict is unreasonable and/or is not supported by the evidence.

2.There was a miscarriage of justice by reason of the failure of the trial judge to adequately direct the jury as to the permissible use of certain evidence which it was contended were “lies”.

3.A miscarriage of justice occurred by reason of the admission of evidence of three distinct complaints in circumstances where the second and third complaints could not be viewed as part of the “initial complaint” or an elaboration of it.

4.A miscarriage of justice occurred because the jury was not directed that if they experienced a doubt about the complainant's evidence in relation to one or more of the sexual acts…

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Anderson (a pseudonym) v The King [2024] SASCA 36
Case
[2024] SASCA 36
Decision Date

CaseChat Overview and Summary

The appellant, Anderson (a pseudonym), appealed his conviction for a sexual offence. The appeal concerned the admissibility and use of complaint evidence, specifically an "initial complaint" made by the complainant to a school friend and an "elaboration" of that complaint made to a former domestic partner. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issues before the court were whether the "elaboration" of the complaint was admissible under section 34M of the *Evidence Act 1929* (SA), and if not, whether its admission, along with the judge's directions regarding complaint evidence, constituted a miscarriage of justice. The court also considered whether the trial judge's directions regarding statements made by the appellant to police and in a phone call, which might have been interpreted as lies indicating consciousness of guilt, were adequate.

The court reasoned that the evidence of the later complaint to the former domestic partner was not an admissible "elaboration" of the initial complaint under section 34M(6) of the *Evidence Act*. This was because the later statement, made significantly later and containing more detail, did not fit the statutory definition of an elaboration. The court noted that complaint evidence, even when admissible, can be prejudicial to a defendant by blurring the distinction between evidence of consistency and evidence of the truth of the allegations. The court found that the admission of this inadmissible evidence, coupled with the judge's instructions which did not adequately guard against its prejudicial effect, resulted in a miscarriage of justice.

Consequently, the court granted permission to appeal on grounds relating to the complaint evidence and allowed the appeal on those grounds. The conviction was quashed, and the matter was remitted to the District Court for a retrial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Again, whilst counsel for the appellant at the trial did not object to this evidence, that does not relieve this Court from the responsibility of determining whether there has been a miscarriage of justice. In this case, the jury was explicitly instructed that the evidence of these complaints could be used to enhance the credibility of the complainant.[61] Objectively, there was no forensic advantage to be gained for the defence by failing to seek rulings which excluded the later complaints, nor in remaining mute on the issue. The proper conclusion is that there has been a miscarriage of justice because the evidence was not only inadmissible but prejudicial to the appellant:[62]Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant. Indeed, the following passage has appeared in the Australian edition of Cross on Evidence for many years, and still appears in the loose-leaf edition at the time of writing:… In its conditions of contemporaneity and spontaneity it is reminiscent of, but does not fit within, the res gestae exception to the hearsay rule. It constitutes an exception to the general rule that a witness’s credit should not be bolstered by the party calling the witness, at least in advance of any attack. It is potentially prejudicial in putting before the jury a sometimes lurid account of the facts which the judge must then solemnly instruct the jury to be no evidence of them. It is illogical in supporting the witness’s testimony without itself being evidence of the facts it asserts. It is anomalous in applying only to a small and bizarre assortment of offences in some of which sexual relationship is disputed, in other of which violence is disputed is disputed, in some of which absence of consent is a necessary ingredient, and to some of which it is irrelevant. It creates resentment in applying to admit previous consistent statements made by one party to the proceedings when no such concession is made to the other.…The fact is that multiple statements of an alleged victim making complaint after complaint in relation to the defendant’s conduct is almost certain to have the effect of blurring the distinction between evidence going only to consistency of conduct of the complainant and evidence which appears to confirm the truth of the allegations made by the complainant. There is no reason to believe that there is a legislative intention to subject a defendant to an unfairly prejudicial effect of such multiple complaints…[61] Summing Up, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 27 September 2022), 10, cf Boyle (a pseudonym) v The Queen [2022] SASCA 50, [25], [31].[62] R v Maiolo (No 3) [2014] SASCFC 89, [77], [79] (Peek J with whom David and Stanley JJ agreed) (citations omitted).

Evidence

Evidence Before The Court

The prosecution called evidence from two other witnesses regarding “complaint” evidence which the prosecution contended was admissible because it came within s 34M(3) of the Evidence Act 1929 (SA) (the Evidence Act). Evidence of an “initial complaint” was given by AR, who was at school with the complainant. When they were both aged around 14 or 15 years, apparently in 2007 or 2008, AR said that she noticed “self-harming scars” on the complainant’s legs. In response to her questioning about that scarring, the complainant told AR that “her dad had been touching her” and implied that “it was of a sexual nature”.[1] [1] Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 160. LP’s evidence was that she had not recalled making this complaint until she was later reminded about it. Evidence of what was contended to be an “elaboration” of the initial complaint was called from BW, a former domestic partner of the complainant, who said he was born on 29 October 1990. His evidence was that the complainant spoke to him about sexual abuse involving her father about “a year, 12 months” after they started dating.[2] They had started dating when he was “late 22, 23” years.[3] This timing suggests a conversation in late 2013, 2014, around five to seven years after the initial complaint. BW said that the complainant was crying when she told him that sexual “things had happened between her and her father”.[4] [2] Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 165.[3] Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 164.[4] Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 165. LP’s evidence was that she recalled making this complaint to BW, adding that she told him that the sexual abuse included “oral”.[5] [5] Transcript of Proceedings, R v Anderson (A Pseudonym) (District Court of Adelaide, DCCRM-19-1316, Schammer DCJ, 21 September 2022), 41. The appellant maintained that this last conversation could not properly be regarded as an “elaboration” of the “initial complaint” within the meaning of s 34M(6) of the Evidence Act and that it was therefore inadmissible. No objection was taken to the admission of this evidence at the trial. The prosecution put the record of interview between police and the appellant before the jury. The appellant denied the offending in his record of interview and, according to the prosecution, effectively minimised the time he had spent with the children in his cabin at Virginia. The appellant contended that the trial judge failed to give directions about the statements made by the appellant in the first phone call to AM, as well as to police, which may have been treated by the jury as lies, told out of a consciousness of guilt. Again, at the trial no objection was made and no direction was sought concerning these matters.

Decision

Reasons for decision

Whilst there were undoubtedly a number of difficulties with the evidence of the complainant, this is not a case in which the jury must, as distinct from might, have entertained doubt about the appellant’s guilt.[168][168] Libke v The Queen (2007) 230 CLR 559, [113] (Heydon J), followed in Pell v The Queen (2020) 268 CLR 123, [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).Conclusion The appellant should be granted permission to appeal on all grounds of appeal, and the appeal should be allowed on appeal grounds 2 and 3. Appeal grounds 1 and 4 should be dismissed. In consequence, there should be orders quashing the appellant’s conviction and remitting the matter to the District Court for retrial.

Ratio Decidendi

Legal Principle Established

The appellant should be granted permission to appeal on appeal ground 2 and the appeal should be allowed. Appeal ground 3: Miscarriage of justice concerning complaint “elaboration” As there is to be an order that the matter is to be remitted it is appropriate to address appeal ground 3, concerning the complaint evidence. In R v Usher Kourakis CJ (with whom Peek J agreed) said:[46]Section 34M of the Evidence Act abolished the common law with respect to recent complaint evidence in sexual cases and replaced it with a statutory regime. Section 34M expands the circumstances in which complaints are admissible, beyond the contemporaneity required by the common law, and leaves to the jury the evaluation of the significance (if any) of the evidence, subject to prescribed mandatory directions. [46] R v Usher (2014) 119 SASR 22, [48]. Section 34M of the Evidence Act is in the following terms:34M—Evidence relating to complaint in sexual cases(1) This section abolishes the common law relating to recent complaint in sexual cases.Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct.(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—· when the complaint was made and to whom;· the content of the complaint;· how the complaint was solicited;· why the complaint was made to a particular person at a particular time;· why the alleged victim did not make the complaint at an earlier time.(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a) it is admitted—(i) to inform the jury as to how the allegation first came to light; and(ii)as evidence of the degree of consistency of conduct of the alleged victim; and(b) it is not admitted as evidence of the truth of what was alleged; and(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).(6) In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).