Brant v The King - [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 appellant (Ground 7).
•The prosecutor made comments in his closing address about the appellant’s failure to give evidence at trial which were prohibited by s 18(1)(b) of the Evidence Act, resulting in a miscarriage of justice (Ground 8)
•If the errors alleged in Grounds 1 to 8 did not individually cause a miscarriage of justice, they did so in combination (Ground 9).
Ground 6 was abandoned by the appellant.
The appellant was granted an extension of time to lodge his notice of appeal.

Permission to appeal was conceded by the respondent on Grounds 1, 2, 3 and 8. The question of permission to appeal on the remaining grounds was referred to this Court for consideration.
At the appeal hearing, the respondent conceded the error alleged in Ground 2 and that it was not appropriate for this Court to apply the proviso. The evidence of the pornography comment was evidence of discreditable conduct and compliance with s 34R of the Evidence Act was mandatory. This Court agreed with the respondent’s concessions and allowed the appeal.
For the purpose of any re-trial, the appellant sought to agitate Grounds 1 and 4, regarding the admissibility of both the pornography comment and the alleged telephone call. Both parties made submissions in relation to those grounds.
Held, per the Court, granting permission to appeal on Grounds 4, 5, 7 and 9, and allowing the appeal:
1.As to Grounds 1 and 2, the evidence of the pornography comment was not admissible under s 34P(2)(a) and the trial Judge’s decision not to exclude the evidence was an error of law. The trial Judge did not comply with s 34R by failing to give any directions as to the permissible and impermissible uses of the evidence.
2.As to Ground 4, the probative value of the evidence of the alleged phone call was outweighed by its prejudicial effect and the trial Judge erred in declining to exclude the evidence.
3.The appeal is allowed, the conviction is set aside, and the matter is remitted to the District Court of South Australia for re-trial.
4.The appellant is released on bail on the same conditions as previously applied, as set out in the bail agreement dated 17 December 2020.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34R, 34P, 34P(2)(a), referred to.
B v The Queen (1992) 175 CLR 599; Day v The Queen [2021] SASCA 38; R v Loader (2004) 89 SASR 204; R v Garner; R v Webb [2021] SASCA 68; R v W, CT [2019] SASCFC 18, considered.

BRANT v THE KING
[2023] SASCA 67
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: On 6 June 2022, following a trial by jury, the appellant was found guilty and convicted of one count 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 of the offence alleged that between 1 September 1981 and 8 April 1992, the appellant maintained an unlawful sexual relationship with the complainant, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
·touching her on the vagina on more than one occasion;
·inserting his finger into her vagina on more than one occasion;
·performing cunnilingus on the complainant on more than one occasion;
·kissing the complainant on the lips using his tongue on more than one occasion;
·causing the complainant to masturbate him on more than one occasion;
·placing his penis in the complainant’s mouth on more than one occasion;
·licking the complainant’s nipples;
·showing the complainant pornographic videos on more than one occasion; and
·rubbing his penis against the complainant’s vagina on more than one occasion.
The appellant is the former domestic partner of the complainant’s mother, AB. The complainant alleged that the appellant sexually abused her from the age of three until she was 13 years old, that being from 1981 to 1991. The trial commenced on 1 June 2022, being 30 to 40 years after the alleged offending. The complainant was 44 years old when she gave evidence at the trial.
The grounds of appeal, broadly summarised, relate to the following issues.
(a)The admissibility of 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); and whether 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); or, in the alternative to Ground 2, if the pornography comment was not discreditable conduct, by failing to instruct the jury as to its use (Ground 3).
(b)The admissibility of 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); and whether the trial Judge’s directions as to the use of the evidence were adequate (Ground 5).
(c)The absence of a direction as to significant forensic disadvantage suffered by the appellant (Ground 7); and comments made by the prosecutor about the appellant’s failure to give evidence (Ground 8).[1]
[1] Ground 6 was abandoned.
The appellant was granted an extension of time to lodge his notice of appeal.
The respondent conceded the error alleged in Ground 2 and accepted that it was not appropriate to apply the proviso. The trial Judge gave no directions at all as to the permissible and impermissible uses of the pornography comment in his charge to the jury. The evidence of the pornography comment was evidence of discreditable conduct, and compliance with s 34R of the Evidence Act was therefore mandatory. This Court agreed with the respondent’s concessions and allowed the appeal, set aside the conviction, and remitted the matter for re-trial in the District Court of South Australia.
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.
The appellant applied for the exclusion of the evidence during a voir dire hearing. The detail of DB’s account was provided in an affidavit. He said that on a night in 1997 or 1998, he and the complainant visited the home of her mother and the appellant. The complainant went to see her mother in the kitchen, and he went to see the appellant in the lounge room. DB said that the appellant had been drinking and he was watching pornography. DB said the appellant pointed to the video and said, ‘You see the blonde there? That’s [the complainant]’. DB said ‘okay’ and went and joined the complainant in the kitchen. His evidence was in broadly similar terms to his account in his affidavit, except he said the appellant pointed to one of the people in the video and said, ‘You see that blonde girl there, that’s [the complainant].’ In cross-examination, DB said the incident was probably in the first 12 months he was dating the complainant which placed it in 1995. There was no suggestion that the pornography was anything other than adult pornography or that it contained any child exploitation material.
In ex-tempore reasons, the trial Judge ruled that the evidence was relevant and admissible and declined to exercise his discretion to exclude it. In his published reasons, his Honour said:
The evidence of [DB] is that while watching pornography on the television, the accused said ‘See that blonde there? That’s [the complainant]’. The accused’s statement amounts to what is often described as an implied admission. In R v W, CT, Lovell J (Kourakis CJ and Stanley J agreeing) said that evidence of sexual attraction may support, and in some circumstances strongly support, allegations of specific acts. Choosing to associate the complainant with a person seen in a pornographic video demonstrates a sexual interest in the complainant which is capable of corroborating or at least supporting her account of the alleged offending. This is the case despite there being no evidence that the accused referred to a sexual interest in the complainant as a child or that it was child exploitation material that was being viewed by the accused. The evidence of [the] accused saying ‘See that blonde there? That’s [the complainant]’ at the least amounts to an implied admission and is therefore relevant and admissible.
(citations omitted)
It is evident that the trial Judge admitted the evidence as demonstrating a sexual interest in the complainant (which did not go so far as to demonstrate a propensity to act upon that sexual interest) capable of corroborating, or at least supporting, her account of the alleged offending. His Honour concluded that the alleged comment, ‘You see that blonde there? That’s [the complainant]’ amounted to an implied admission (as to his sexual attraction to the complainant) and was therefore relevant and admissible in proof of the offence.
In closing addresses, both parties referred to the evidence of the pornography comment. The prosecutor submitted that the evidence ‘shows an expression to someone, other than the complainant, which informs you of a sexual interest in the complainant.’ Defence counsel submitted that it was highly unlikely that the appellant made the comment at all.
The appellant contends that the trial Judge erred in admitting the evidence.
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.
The respondent submits that the pornography comment was evidence of a sexual interest in the complainant but did not go so far as to demonstrate a propensity to act upon that sexual interest. As such, it was not evidence that relied on demonstrating a particular propensity or disposition. Rather, it was said to be admissible under s 34P(2)(a) as a piece of circumstantial evidence which supported the prosecution case that the appellant had committed two or more unlawful sexual acts with the complainant. The respondent submits that the fact the appellant chose to make a comment about the complainant in association with a pornographic video watched for sexual gratification, demonstrated a sexual interest in her. This was in turn relevant in proof of the appellant having committed two or more unlawful sexual acts against the complainant.

It is to be accepted that evidence of a defendant’s sexual attraction to a child complainant may support allegations of specific sexual offences committed against the child complainant.[4]
[4] See B v The Queen (1992) 175 CLR 599; R v W, CT [2019] SASCFC 18 at [41] per Lovell J (with whom Kourakis CJ and Stanley J agreed); Day v The Queen [2021] SASCA 38.
However, in the present case, the evidence of the pornography comment which was made when the complainant was an adult was said to be relevant to prove the appellant’s sexual attraction to the complainant when she was a child (aged three to 13). The pornography comment was made in about 1996, when the complainant was aged 18 to 20 years. Unless it was open to the jury to infer from the evidence that the appellant had a sexual attraction to the complainant whilst she was a child it had no probative value.
The pornography comment was a bald comment which was not expanded upon in anyway. For example, there was no elaboration as to the actions of the female in the video to which he pointed when he made the comment. Without more, it did not necessarily reveal a sexual attraction to the complainant at all. It may have simply been a reference to the actress in the video looking like the complainant; and thus, a comment that, whilst not to his credit, did not reveal a sexual attraction.
Furthermore, there was no suggestion that the person the appellant pointed to, and referred to as the complainant, was a child or even looked like a child. Even if it was open to the jury to conclude that the evidence was capable of establishing that the appellant had a sexual attraction to the complainant as an adult, that fact was of little probative value in establishing that he had a sexual attraction to her when she was a child aged three to 13, that is five to 15 years earlier. Even less so, when at least five years had elapsed since the alleged offending. There is a stark qualitative difference between an attraction to a person as an adult, as opposed to when that person was a child aged three to 13.
For those reasons, we are satisfied that the evidence of the pornography comment had little or no probative value. It was also highly prejudicial to the appellant. There was a danger that the jury would misuse the evidence of the pornography comment as revealing his bad character by reason of him having made an inappropriate comment about the complainant to her boyfriend and, from that comment, reason that he was more likely to have committed the offence. Consequently, we are satisfied the evidence was inadmissible for a non-propensity purpose under s 34P(2)(a) and was wrongly admitted.
We would allow this ground of appeal.
Grounds 4 – evidence of the alleged phone call
The appellant complains that the trial Judge erred by not excluding the evidence of the alleged phone call in the exercise of his discretion as being more prejudicial than probative. The complainant said in her affidavit, and later in evidence, that in January 2019 when she was texting her mother that she needed to speak to her about something, she received a phone call on her mobile phone from her mother’s mobile phone. She answered the call and recognised the appellant’s voice who “asked me what I needed to talk to my Mum about and also said something like, ‘Is it about what I did to you?’” The complainant said that she did not respond and hung up.
The appellant did not challenge nor apply for the exclusion of the evidence of the alleged phone call. However, the trial Judge raised the issue of the admissibility of the evidence. In response, the prosecutor submitted that the appellant’s question ‘Is it about what I did to you?’ was an admission by the appellant of his past wrongdoing to the complainant thus supporting her account of the sexual allegations and the offence. In support of that submission as to admissibility, the prosecutor relied on subsequent conversations between the appellant and AB, from which it was said it could be inferred that the appellant’s question, ‘Is it about what I did to you?’ was a reference to acts of a sexual nature.
Defence counsel then challenged the admissibility of the evidence and submitted it was vague and did not amount to an admission.
The trial Judge in an ex-tempore ruling declined to exclude the evidence stating: ‘My view, subject again to anything that you might say once the evidence is concluded, is that that could be seen to be an implied admission but you can lead that.’However, the trial Judge did exclude the evidence of the appellant’s later discussions with AB (from which the phone call was said to draw its context) leaving the evidence of the alleged phone call standing alone.
In declining to exclude the evidence of the alleged phone call, it is apparent that the trial Judge considered that its probative force outweighed its prejudicial effect. His Honour provided no further explanation for his decision (in his ex-tempore ruling or in his published reasons) for declining to exclude the evidence in the exercise of his discretion.
After the evidence was adduced, the trial Judge again raised the topic of the alleged phone call and said that he now considered the evidence was a piece circumstantial evidence of post offence conduct and referred to the authority of R v Loader.[5] Presumably, his Honour considered the evidence of the alleged phone call to form part of a body of evidence (including the complainant’s evidence) from which the jury were entitled to draw an inference of guilt. The relevance was not restricted to mere credibility but rather the alleged phone call could be used (with other evidence) to establish positive evidence of guilt.
[5] (2004) 89 SASR 204.
The prosecutor, in his final address, referred to the complainant’s evidence of the alleged phone call and said that if the jury accepted it to be true it might use the evidence as a piece of circumstantial evidence.
The trial Judge ultimately directed the jury they could use the evidence of the alleged phone call as: first, evidence that the appellant admitted he had maintained an unlawful sexual relationship with the complainant; and secondly, as a piece of circumstantial evidence as to the existence of a sexual relationship ‘at some undetermined time and take that into account when assessing the credibility and reliability of the complainant.’
The evidence of the alleged phone call was relevant if it was capable of rationally affecting, directly or indirectly, an assessment of the probability of a fact in issue; in this case, whether the appellant committed two or more unlawful sexual acts with the complainant. The evidence was also relevant if it was necessary to provide context to the complainant’s narrative or explain other matters.
There is a beguiling simplicity about evidence such as this. When viewed from the perspective that the appellant is guilty it appears unanswerable. When viewed from the perspective that the appellant may be innocent the perfectly ambiguous nature of the comment becomes clearer. In the present case, the probative force of the evidence of the alleged phone call was very limited. Upon the trial Judge excluding the evidence of the subsequent conversations between the appellant and AB, there was no context from which the jury could infer what it was the appellant admitted he had done to the complainant. The text message by the complainant to her mother which precipitated the phone call was in general terms, that she needed to speak with her about ‘something.’ There was nothing in the text message from which the subsequent alleged phone call could draw its context. There was no independent evidence of the fact of the phone call, nor its contents, outside of the complainant’s evidence. In those circumstances, the alleged phone call could have little or no proper effect on any rational assessment of any fact in issue. Nor did the evidence provide any context for the complainant’s narrative; it was not necessary to explain other matters.
The prejudice to the appellant in admitting the evidence was that the jury were left to speculate about what the appellant was referring to. There was the potential for the evidence to be misused by the jury in speculating what it was the appellant was referring to in the absence of any clear context from which the subject matter could be properly drawn. There was also the potential for circular reasoning, that is, for the jury to first decide the appellant was guilty and then reason from there that he was referring to conduct of a sexual nature.
We are satisfied that the evidence of the alleged phone call was, in effect, a self‑serving statement and its low probative value was outweighed by its prejudicial effect. The trial Judge’s decision not to exclude the evidence was an error of law. The respondent having conceded the appeal on Ground 2, it is not necessary to decide whether this error was productive of a substantial miscarriage of justice. Nor is it necessary to consider the remaining grounds of appeal which do not relate to the admissibility of evidence.
Orders
The orders of the Court were as follows.
1.Permission to appeal with respect to Grounds 4, 5, 7 and 9 is granted.
2.The appeal is allowed.
3.The conviction is set aside, and the appellant is to be remanded for re‑trial in the District Court of South Australia.
4.The appellant is released on bail on the same conditions as previously applied, as set out in the bail agreement dated 17 December 2020.