Brant v The King

Case [2023] SASCA 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BRANT v THE KING

[2023] SASCA 67

Judgment of the Court of Appeal  

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

15 June 2023

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

EVIDENCE - ADMISSIBILITY - EXCLUSIONS: DISCRETIONARY AND MANDATORY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE

This is an appeal against conviction.

Following a trial by jury, 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) (‘CLCA’). The particulars alleged that between 1 September 1981 and 8 April 1992, the appellant maintained an unlawful sexual relationship with the complainant when she was between the age of three and 13 by engaging in two or more unlawful sexual acts with or towards her. At the time of the charged offence, the appellant was the partner of the complainant’s mother.

The trial commenced on 1 June 2022, that being 30 to 40 years after the alleged offending occurred. The complainant was 44 years old when she gave evidence at the trial. The appellant did not give evidence nor call evidence.

The appellant now appeals against his conviction on the following grounds:

•The trial Judge erred in admitting the evidence of the complainant’s ex-husband, DB, that in 1997 or 1998 the appellant said to him, whilst watching adult pornography, that a blonde girl depicted in the film was the complainant (‘the pornography comment’) (Ground 1).

•In relation to the pornography comment, the trial Judge erred at law by failing to direct the jury in accordance with s 34R of the Evidence Act 1929 (SA) (‘the Evidence Act’) (Ground 2). 

•In the alternative to Ground 2, if the pornography comment was not discreditable conduct, the trial Judge erred by failing to instruct the jury as to its permissible and impermissible use (Ground 3).

•The trial Judge erred by not excluding as more prejudicial than probative, the complainant’s evidence that the appellant telephoned her and said, ‘What do you want to tell your Mum? Is it about what I did to you?” (‘the alleged phone call’) (Ground 4).

•The trial Judge erred in his directions to the jury concerning the use it could make of the complainant’s evidence of the alleged phone call, by directing the jury it was open for it to be satisfied that the question the appellant asked was an admission he maintained an unlawful sexual relationship with the complainant (Ground 5).

•The trial Judge erred by not adequately directing the jury in accordance with s 34CB of the Evidence Act about the nature of the significant forensic disadvantage suffered by the…

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AGLC
Brant v The King [2023] SASCA 67
Case
[2023] SASCA 67
Decision Date

CaseChat Overview and Summary

The appellant, Brant, appealed to the Supreme Court of South Australia against his conviction for sexual offences against his stepdaughter. The appeal concerned the admissibility of two pieces of evidence: a comment made by the appellant about a woman in a pornographic film being the complainant, and an alleged telephone call from the appellant to the complainant asking if her intended conversation with her mother was about what he had done to her.

The primary legal issues before the Court were whether the trial judge erred in admitting the evidence of the pornography comment and the alleged telephone call. Specifically, regarding the pornography comment, the Court had to determine if it constituted "discreditable conduct" under section 34P of the Evidence Act 1929 (SA) and, if so, whether its probative value outweighed its prejudicial effect. For the alleged telephone call, the Court considered its admissibility in the context of the appellant's right to silence and the potential for it to be unfairly prejudicial.

The Court found that the pornography comment was indeed evidence of discreditable conduct under section 34P of the Evidence Act. It reasoned that the context in which the comment was made – to the complainant's ex-husband while watching pornography, and concerning his partner's daughter – rendered it discreditable. Consequently, for the evidence to be admissible, the trial judge was required to be satisfied that its probative value, for a permissible use, outweighed any prejudicial effect. The Court concluded that the trial judge erred in admitting this evidence without adequately undertaking this balancing exercise. Similarly, the Court found that the alleged telephone call was also inadmissible, as it carried a significant risk of unfair prejudice and was not sufficiently probative to warrant its admission, particularly given the appellant's exercise of his right to silence.

The Court allowed the appeal on these grounds, quashed the conviction, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

The appellant sought to agitate Grounds 1 and 4, regarding the admissibility of both the pornography comment and the alleged telephone call, for the purpose of any re-trial. This Court heard submissions by both parties on those grounds. We are satisfied that the trial Judge erred in not excluding both the evidence of the pornography comment and the alleged phone call. Our reasons follow. Background The complainant was born on 8 April 1978. In 1981, the appellant commenced a relationship with the complainant’s mother, AB. Later that year, the appellant moved into AB’s home where she lived with her two children: the complainant, and her younger son. The appellant and AB married in 1989. They continued to live together until they separated in 2019. The complainant gave evidence that she was sexually abused by the appellant between the age of three and 13 years old, that is, between 1981 and 1991. For the purposes of these reasons, it is not necessary to detail the complainant’s evidence of the particularised unlawful sexual acts except to say that they occurred in various rooms in her home on a weekly basis. The sexual abuse ceased when the complainant was about 13 years of age, after the appellant’s son moved into the house. The complainant gave evidence that in early 2019 she decided to tell her mother about what had happened with the appellant. She sent her mother a text message asking her to come and see her because she needed to speak to her. The complainant said that after she sent the text message to her mother, she received a phone call from her mother’s phone. She answered it and it was the appellant who asked her, ‘What do you want to tell your mum? Is it about what I did to you?’ She said she responded by hanging up. This evidence is the subject of Grounds 4 and 5 of this appeal. The complainant’s ex-husband, DB, gave evidence that the appellant made a comment to him in 1997 or 1998, whilst at the appellant’s home, that a woman in an adult pornographic film that was showing in front of them was the complainant. The evidence of the pornography comment was the subject of Grounds 1, 2 and 3 of this appeal. DB also gave evidence that at an unspecified time, the appellant had told him he abused the complainant and made her do things in the shower. It was put to DB in cross-examination that the appellant had not said that to him. In February 2019, the complainant reported the allegations to police. Police conducted a record of interview with the appellant on 18 August 2019. During that interview, the appellant denied that he was living at the complainant’s mother’s house at the time of the alleged offending. Outside of that denial, the appellant exercised his right to remain silent. The appellant did not give or call evidence at the trial. The defence case, as put to the prosecution witnesses, was that he had never touched the complainant in a sexual manner. Ground 1– Admissibility of the pornography comment The appellant complains that the trial Judge erred in admitting the evidence of the pornography comment on the basis it was evidence of discreditable conduct and not admissible pursuant to s 34P of the Evidence Act; or, in the alternative, if the evidence was not evidence of discreditable conduct, it was more prejudicial than probative, and his Honour erred by declining to exclude it in the exercise of his discretion.

Evidence

Evidence Before The Court

In considering this ground of appeal, the first question to determine is whether the terms of s 34P were engaged. Section 34P of the Evidence Act relevantly provides:Section 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) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.… It was common ground between the parties at trial, and on the appeal hearing, that the pornography comment constituted evidence of ‘discreditable conduct.’ In determining whether s 34P was engaged, the context in which the pornography comment was made is relevant. We are satisfied that the circumstances in which the appellant made the comment, it being about his partner’s daughter, and the fact it was said to her boyfriend whilst watching adult pornography, rendered the pornography comment evidence of discreditable conduct. That is to be contrasted, for example, with the viewing of adult pornography by a person, in his or her own lounge room, or viewing adult pornography with other adults but without any commentary. Accordingly, s 34P was engaged and the evidence of the pornography comment was not admissible unless the trial Judge was satisfied that the probative value of the evidence, admitted for a permissible use, outweighed any prejudicial effect it may have on the appellant. The initial questions in determining the probative value of evidence for the purposes of s 34P(2)(a) are: first, for what purpose is the evidence being tendered; and second, what fact in issue does the evidence prove (or disprove)?[2] The focus of that inquiry is upon the probative capacity of the evidence and involves a consideration of what is rationally open for the jury to conclude from the evidence, rather than what they are likely to conclude.[3][2] R v Garner; R v Webb [2021] SASCA 68 at [24] per Kelly P, Lovell and Bleby JJA citing R v W, CT [2019] SASCFC 18 at [30] per Lovell J (with whom Kourakis CJ and Stanley J agreed). [3] R v Garner; R v Webb [2021] SASCA 68 at [27] per Kelly P, Lovell and Bleby JJA.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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