BM v The Queen

[2021] SASCA 35

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BM v THE QUEEN

[2021] SASCA 35

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)

18 May 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE

Appeal against conviction.

After a trial by Judge alone, the appellant was convicted of nine counts of sexual offending against four complainants. The complainants were under the age of 16 at the time of the offending and are relatives of the appellant.

At the trial, the complainants gave evidence of uncharged hugging acts and touching by the appellant. Their evidence was cross-admissible. Three of the complainants gave evidence that they observed the appellant touch his youngest daughter in an inappropriate manner on more than one occasion. The appellant’s youngest daughter denied that the appellant had ever touched her inappropriately or in the manner described by the complainants.

The appellant appeals against his convictions on the basis that the learned trial Judge erred by not properly considering the significant conflicting evidence between the daughter of the appellant and the complainants in relation to the appellant’s behaviour towards his daughter. It was contended that the conflicting evidence was central to the reliability and credibility of the complainants and was relevant to issues of collusion, contamination and cross-admissibility.

Held (by the Court), granting permission to appeal in respect of ground 1 and dismissing the appeal in respect of grounds 1 and 2:

1.      It is evident that, at its highest, the topic of the appellant’s behaviour with his daughter was only ever a collateral issue at the trial and relevant only to the credit of the complainants.

2.      The Judge did turn his mind to the inconsistency between the three complainants and the appellant’s daughter’s evidence. The Judge’s treatment and analysis of that evidence did not need to go further in circumstances where the evidence was only peripherally relevant.

3.      In the circumstances, the inconsistency between the evidence of the complainants and the appellant’s daughter had no relevance to the issues of collusion, contamination or cross-admissibility.

Evidence Act 1929 (SA) s 34P(2)(a), referred to.
R v BM [2020] SADC 136, considered.

BM v THE QUEEN
[2021] SASCA 35

Court of Appeal – Criminal:    Kelly P, Lovell and Bleby JJA

THE COURT:

Introduction

1. The appellant, BM, was charged with nine counts of sexual offending against four separate complainants. Each of the complainants were under the age of sixteen at the time of the offending and are relatives of the appellant. The offending was alleged to have occurred between 2011 and 2017. 

2. After a trial by Judge alone, the appellant was convicted of all nine counts of sexual offending on 8 October 2020. On the same date, the learned trial Judge provided written reasons for verdict.

3. The appellant appeals against all nine convictions. Two grounds of appeal were advanced in his Amended Notice of Appeal. The first ground contends that the verdicts of guilty to each count are unreasonable. The second ground is a complaint that the learned trial Judge erred by not properly considering significant conflicting evidence between the daughter of the appellant and four prosecution witnesses on the topic of inappropriate touching by the appellant of his daughter, DM.  Ground 2 was, in practical terms, particulars of ground 1.  On appeal, no independent argument was advanced in relation to ground 1.

4. In particular, it was contended that the conflicting evidence was central to the reliability and credibility of the complainants and was relevant to issues of collusion, contamination and cross-admissibility between the complainants. In the appellant’s submission, this factual dispute was important to the final conclusion of whether the appellant’s guilt had been established beyond all reasonable doubt.

5. On 8 February 2021, administrative orders were made by a Judge of this Court, granting the appellant permission to appeal on ground 2 and referring ground 1 to the Court of Appeal.

6. Before turning to the evidence relevant to the appeal, it is necessary to first provide some background to the complainants and each of the counts. A detailed account of these matters can be found in the trial Judge’s reasons,[1] however, a summary is set out below.

   [1]     R v BM [2020] SADC 136.

   Background

7. The appellant is aged 50. He and his wife, RK, have three children, a son, who is aged 26 and two daughters, TM and DM, aged 23 and 17 respectively. RK is of Aboriginal descent and is relatively senior in her family. The four complainants are the children of two of RK’s younger siblings and one of her step siblings. The complainants are KK, TK, TGC and LS. For simplicity, they can be described as nieces of the appellant.

8. KK and TK are sisters. KK is the complainant in respect of counts 1 and 2. Count 1 alleged an aggravated indecent assault whereby the appellant touched KK’s breasts and pressed his penis against her. Count 2 alleged that the appellant committed an act of gross indecency in the presence of KK, by masturbating near her.

9. KK’s younger sister, TK, is the complainant in respect of counts 6 and 7. Count 6 alleged that the appellant indecently assaulted TK by touching her breasts, and count 7 alleged that the appellant committed an act of gross indecency by masturbating in front of TK. Count 6 was an aggravated offence, as TK was alleged to be under the age of 14 years old at the time of the offence.

10. TGC is the complainant in respect of three counts of aggravated indecent assault,[2] which all occurred when she was under the age of 14 years. Counts 3 and 4 alleged that the appellant pressed his penis against TGC’s groin area on separate occasions. Count 5 alleged that the appellant indecently assaulted TGC by touching her buttocks.

    [2]     Counts 3, 4 and 5.

11. LS is the step-daughter of one of RK’s step siblings. She was the complainant in respect of two counts of indecent assault, being counts 8 and 9. Count 8 alleged that the appellant touched LS’ breasts and pressed his penis against her buttocks. Count 9 alleged an indecent assault whereby the appellant caused LS to touch his penis.

12. A number of these instances of offending occurred when the appellant was teaching the complainants how to drive or when he was driving them to various locations. The evidence at trial was that the appellant assumed the responsibility of teaching the children in the extended family how to drive.

13. In addition to the charged acts, the complainants also gave evidence of uncharged acts by the appellant. All four complainants gave similar, though not identical, accounts that the appellant hugged them in a sexual manner on multiple occasions. This could take place in the presence of other people.

14. For the purposes of this appeal, we do not consider it necessary to set out the factual background and the evidence led in relation to each count. These matters are comprehensively set out at [21]-[82] of the trial Judge’s reasons.[3] However, it is appropriate to address the evidence in relation to allegations that the appellant had grabbed or slapped his daughter’s bottom, as those allegations, and the inconsistencies between accounts, are central to this appeal.     

    [3]     R v BM [2020] SADC 136 at [21]-[82].

    Evidence as to the appellant’s behaviour towards his daughter, DM

15. Four prosecution witnesses gave evidence that they observed the appellant behave in an inappropriate manner towards his youngest daughter, DM. Three of these witnesses were the complainants, KK, TK and LS. The other complainant, TGC, was not asked in examination-in-chief or cross-examination about allegations concerning DM.

16. While the appellant was not on trial for offending against his daughter, it is the appellant’s submission that the conflicting evidence on this topic was relevant to the possibility of collusion or contamination between the evidence of the complainants. This possibility was said to be an important aspect of the defence case.

17. We now turn to summarise the evidence of each witness on this topic.

    Evidence of KK

18. In both examination-in-chief and cross-examination, the first complainant, KK, gave evidence of uncharged hugging acts by the appellant. She alleged that the appellant hugged her in such a way that he would touch and squeeze her breasts and would press his penis against her bottom. In this context, KK was asked in cross-examination whether she had seen the appellant hug anyone else in the family in the same way. She replied with, ‘Yes, his daughter’. She went on to state that she had witnessed the appellant, on a couple of occasions, slap his daughter ‘on the bum’ and squeeze her breasts and bottom. This evidence was not adduced in examination-in-chief, and KK did not explicitly refer to DM in her evidence. 

    Evidence of TK

19. KK’s younger sister, TK, gave evidence that the appellant would put his hand on her bottom and poke her around her breasts when he gave her hugs. In cross-examination, she was asked whether she had ever seen the appellant grab another child’s bottom. TK stated that she had seen the appellant grab his daughter, DM, on her bottom. Again, this evidence was not adduced in examination-in-chief.

20. During cross-examination, TK was also asked whether she had discussed the appellant’s behaviour towards his daughter with the other witnesses, KK, LS and/or TGC.  She denied having done so. She further denied having ever heard or witnessed any discussions about these allegations. 

    Evidence of LS

21. LS gave evidence in examination-in-chief that the appellant would poke her under her breasts when he hugged her.

22. In cross-examination, she was asked whether there was anything unusual about the appellant’s behaviour towards his daughter, DM. LS recalled that the appellant would sometimes ‘slap her on the arse’. She could not recall the appellant having engaged in any other inappropriate behaviour with or towards his daughter.

    Evidence of TS

23. Subsequent to the evidence of the three complainants named above, the prosecution led evidence from another witness, TS, as to her observations of the appellant and his daughter. TS is a younger step-sister to the complainant, LS.

24. In examination-in-chief, TS was asked whether she had seen the appellant do anything to DM that made her feel uncomfortable. She stated that the appellant would ‘slap her around the arse, like, then grab and that’. She further stated that the appellant would hug his daughter, then push himself up against her and grab her bottom for ‘a second or two’. When asked how often she saw this, TS stated that she saw the appellant slap and grab DM’s bottom once and that she had witnessed him ‘slap her arse and walk away a few times’.

25. TS gave further evidence that she had seen the appellant hug her other female cousin, MS, and push his private part into the front of her as he did so.

26. In cross-examination, TS denied ever having discussed the appellant’s behaviour towards DM with any other witness, including KK, TK and LS.

    Evidence of defence witnesses

27. Three defence witnesses gave evidence on this topic at the trial.

28. The appellant’s youngest daughter, DM, was asked about the allegations in the course of her evidence. She was aged 17 at the time of the trial. During examination-in-chief, she stated that her father never slapped or grabbed her bottom and that she would not tolerate that. The allegation was again denied by her during cross-examination.

29. The appellant’s wife and DM’s mother, RK, denied ever witnessing the appellant slap or grab DM’s bottom or do anything that made her concerned about DM’s wellbeing. She was not asked about the topic by the prosecution during cross-examination. 

30. Finally, the appellant chose to give evidence at trial. He stated that he had never touched or grabbed his daughter’s breasts or bottom, or engaged in any indecent touching with her of any kind.

31. In defence counsel’s closing address, the following was put to the trial Judge:

    …if your Honour did accept those allegations [of the appellant grabbing and slapping his daughter’s bottom] were not true, they certainly couldn’t be used as part of any propensity reasoning, but more importantly, if, as defence urge you to do, your Honour accepts those allegations by [the complainants KK, TK and LS] are untrue, that they witnessed DM being abused, that would be a matter of significance that your Honour should take into account in assessing the evidence of the complainants.

    The trial Judge’s findings as to cross-admissibility and collusion

32. The trial Judge concluded that the evidence of inappropriate hugging by the appellant towards the complainants was admissible for similarity of account purposes pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA). The evidence was also found to be cross-admissible, noting that there was no submission by the defence that the allegations made by the complainants were not cross-admissible. Evidence as to uncharged hugging acts were not used for a propensity purpose.

33. As to the possibility of collusion, the trial Judge found that the similarities and dissimilarities between the complaints and the accounts of how they were made to police negates any collusion or contamination between the complainants. His Honour was satisfied beyond reasonable doubt that there was no collusion or contamination. 

    Grounds of appeal

34. After making the above findings, the trial Judge did, in his reasons, identify DM’s denial in relation to the appellant’s behaviour towards her, and the inconsistency between this and the evidence of the complainants.

35. The complaints advanced on appeal, in essence, arise out of the Judge’s observations at [311] of his reasons:

    There is no basis upon which I could reject DM’s denial.  On the other hand, I do not on that account doubt the evidence of those three complainants as it relates to the charged and uncharged incidents which involve them.

36. The appellant submitted that the conflict between the evidence of the three complainants, who were asked about their observations of the appellant’s behaviour towards DM, and the denials of DM herself, represented a significant factual dispute, the resolution of which constituted an essential step towards reasoning to the guilt of the appellant.  The appellant submitted that the Judge’s failure to adequately explain his conclusion on that significant factual dispute was therefore inadequate. It was further submitted that the same error has an effect on the trial Judge’s ruling that the evidence of each of the complainants was cross-admissible, as it effectively meant that the Judge had failed to rule out collusion and contamination as a reasonable possibility before finding that their evidence was cross-admissible.  In these circumstances, it was contended that the convictions should be quashed and a retrial should be ordered. 

37. The appellant’s submissions need to be evaluated in light of the way this evidence arose during the trial and what use the parties invited the trial Judge to make of it. 

38. The topic of the appellant’s behaviour in relation to his daughter DM first arose in cross-examination of the three complainants, KK, TK and LS. 

39. It was only after that, that the prosecutor asked the witness, TS, as to what she observed of the appellant’s behaviour towards DM and another young woman, MS. 

40. Significantly, only one complainant, TK, was ever asked in cross-examination if she had discussed how the appellant behaved towards DM with anyone else.  She denied that she had.  The only other prosecution witness to be questioned about this was TS.  In cross-examination, she also denied that she had ever discussed it. 

41. Significantly, KK and LS were never asked about any discussion they had with any other witness concerning the appellant’s behaviour towards DM. 

42. When it came to the defence case, the appellant denied that he had ever touched his daughter inappropriately.  The extent of his evidence on this topic is also relevant to note.  At the conclusion of examination-in-chief, the appellant was asked:

    Q.You’ve heard a number of witnesses talk about you grabbing your daughter’s bottom and slapping your daughter’s bottom; you’ve heard that evidence.

    A.Yes.

    Q.Is that something that you’ve ever done.

    A.No.

    Q.Have you ever touched your daughter’s breasts.

    A.No.

    Q.Have you ever engaged in any indecent touching with your daughter of any kind.

    A.No.

43. In similar vein, at the conclusion of the appellant’s cross-examination, the prosecutor asked:

    Q.You would slap your daughter on the bottom.

    A.No.

    Q.Never.

    A.Never ever slap my daughters - daughter or daughters - on the bottom.

    Q.You grabbed their bottom.

    A.No.

44. When DM was called to give evidence briefly, she denied that she had ever been touched inappropriately by her father.  The examination-in-chief of DM merited 10 lines:

    Q.How about your father, has he ever slapped your bottom.

    A.No. He would never do that.

    Q.Has he ever grabbed your bottom.

    A.No.

    Q.Given that he's your father, would that be the right thing or the wrong thing for him to do.

    A.That would be the wrong thing.

    Q.Is that something you'd tell someone about if it had happened.

    A.Of course. I wouldn't want someone around me like that, I wouldn't want anyone around me like that.

45. At the conclusion of her cross-examination, the prosecutor asked one question:

    Q.I suggest to you, and you can agree or disagree, that your dad did smack you on the bottom, or slap you on the bottom, and grab your bottom sometimes.

    A.No.

46. It was not suggested by either counsel that evidence of the complainants’ observations of the appellant in relation to his daughter DM was relevant to the issue of collusion, contamination and cross-admissibility. 

47. In fact, only two witnesses were ever asked if they had discussed it and they both denied it.  Thus, there was no evidence at the trial that any prosecution witness ever discussed the topic with any other witness. 

48. The manner in which the evidence was produced at trial does not support the appellant’s submission that the evidence was relevant to the issue of collusion or contamination.  It is evident that, at its highest, the topic of the appellant’s behaviour with DM was only ever a collateral issue at the trial and relevant only to the credit of the complainants.  That is exactly how the Judge was invited to deal with it and that is how he did.

49. It seems plain enough that what the Judge was really saying in [311] of his reasons is that whether or not DM was telling the truth had no impact on his assessment of the credibility of the complainants.  What is important about that paragraph is that it demonstrates that the Judge did turn his mind to the inconsistency between the three complainants and DM’s evidence.  He did not find it necessary to make any positive finding about that evidence one way or another.  It is highly significant that the Judge did not accept or reject the evidence of DM.  He simply made a statement that he was unable to reject it.  In light of the somewhat peremptory way in which both parties dealt with that evidence, it is not surprising that he took that course. 

50. Earlier passages in the Judge’s reasons made it plain that he understood the relevant legal principles as to cross-admissibility and carefully examined the evidence in relation to that issue before concluding that the evidence was cross-admissible. 

1. The Judge’s treatment and analysis of the evidence concerning the factual dispute did not need to go any further in circumstances where, at its highest, this evidence was only peripherally relevant. 

2. In addition, where the evidence about the touching of DM was of such a general nature that the prosecutor invited the Judge not to use it at all if not satisfied, beyond reasonable doubt, that the behaviour observed by the complainants was in fact sexual, it is unsurprising that neither party sought to make anything further of it. 

3. In these circumstances, we accept the respondent’s submission that the Judge’s approach to, and consideration of, that evidence was appropriate and adequate. 

4. Once the Judge had decided not to use the evidence in the way the prosecution submitted (i.e. for a propensity purpose), there was no need to go into any further detailed analysis of that evidence and in particular, in relation to the issues of collusion, contamination and cross-admissibility that the appellant now complains about. There was no objection to the cross-admissibility of the evidence of the complainants based upon similarity of account reasoning.

5. As we observed earlier, there was no evidence of any discussions between any of the prosecution witnesses as to how the appellant behaved towards DM.  Unsurprisingly, the appellant’s counsel made no submissions during her closing address about this topic insofar as it had any relevance to the specific issues of collusion, contamination or cross-admissibility.  In truth, in these circumstances, it had no relevance to the issues of collusion, contamination or cross-admissibility.  We would accept the respondent’s submissions in respect of that issue.  We would dismiss the second ground of appeal.  

6. For these reasons, we would grant permission to appeal in respect of ground 1, but dismiss the appeal on both grounds.