Davies v The Queen

Case [2021] SASCA 26

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DAVIES v THE QUEEN

[2021] SASCA 26

Judgment of the Court of Appeal  

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

4 May 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

COMMUNICATIONS LAW - SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS - LISTENING DEVICES AND SURVEILLANCE DEVICES

Appeal against conviction.

The appellant was charged with sexually abusing his two stepdaughters when they were children. Count 1 alleged that the appellant maintained an unlawful sexual relationship with the complainant. Count 2 alleged that the appellant indecently assaulted the second complainant, TH.

The offending against both complainants was alleged to have occurred at night time, when the complainants were alone with the appellant in the lounge room and either watching television or engaging with a gaming console.

After a trial by jury, the appellant was convicted of count 1 and acquitted of count 2. At the trial, a pretext telephone conversation between the complainant and the appellant was played to the jury. On the prosecution case, the appellant acknowledged his sexual offending against the complainant and expressed remorse for the offending during this call.

The appellant appeals against his conviction on the basis that the trial Judge erred in admitting the pretext call into evidence and erred in his directions to the jury concerning the call. It was also contended that the Judge erred in finding that the evidence of the two complainants was cross-admissible for a similarity of account purpose and by failing to direct the jury as to whether the evidence was cross-admissible for a propensity purpose. Finally, it was argued that the Judge gave insufficient directions concerning the burden of proof.

Held per the Court, dismissing the appeal:

1.  The trial Judge was correct to conclude that the recording of the conversation was reasonably necessary for the protection of the complainant’s lawful interests. Those lawful interests included the right to vindication through the criminal justice system.

2.  Given the nature of the relationship between the appellant and the complainant, and the nature of the conversation that actually transpired, it was not unfair or improper in the circumstances to admit the pretext conversation into evidence.

3.  The trial Judge’s directions as to the pretext telephone conversation were accurate and correct. The Judge made it plain in his directions what the prosecution and defence case was in relation to the characterisation of the conversation and concluded his directions by telling the jury that it was a matter for them as to how they interpreted what the appellant was saying in the conversation.

3.  The common features in the evidence of the two complainants excluded the possibility of independent fabrication and therefore outweighed any prejudicial effect that the evidence had on the appellant.

4.  The evidence of the complainants was cross-admissible for…

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Davies v The Queen [2021] SASCA 26
Case
[2021] SASCA 26
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CaseChat Overview and Summary

The appeal concerned a conviction for maintaining an unlawful sexual relationship with a child. The appellant, Davies, was charged with sexually abusing his two stepdaughters, the complainant and TH. He was convicted on one count relating to the complainant but acquitted on the count relating to TH. The central dispute revolved around the admissibility and directions concerning a pretext telephone conversation recorded between the complainant and the appellant, and the cross-admissibility of the complainants' evidence. The matter was heard by the Court of Appeal.

The legal issues before the Court of Appeal included whether the trial judge erred in admitting a recorded pretext telephone conversation between the complainant and the appellant, particularly in light of the *Surveillance Devices Act 2016* (SA) and the exercise of judicial discretion regarding unfairness. Additionally, the court considered whether the trial judge's directions to the jury regarding the characterisation and use of this conversation were accurate and sufficient. The court also had to determine if the evidence of the two complainants was improperly admitted due to prejudicial effect outweighing probative value, or if it was correctly admitted for the purpose of demonstrating a lack of independent fabrication and for similarity of account. Finally, the court considered whether the jury was adequately directed on the burden of proof.

The Court of Appeal held that the trial judge was correct in admitting the pretext conversation. It reasoned that the recording was reasonably necessary for the protection of the complainant's lawful interests, including her right to vindication through the criminal justice system. Given the relationship and the nature of the conversation, admitting the recording was not unfair or improper. The judge's directions on the conversation were found to be accurate, clearly outlining the prosecution and defence cases and leaving the interpretation to the jury. The court also found that the common features in the complainants' evidence excluded the possibility of independent fabrication, thus outweighing any prejudicial effect, and that the evidence was cross-admissible for similarity of account, with the judge sufficiently clarifying its permissible use. The court concluded there was no reason to believe the jury misunderstood the prosecution's burden of proof.

The appeal was dismissed in respect of the admissibility of the pretext conversation and the directions concerning it, and in respect of the cross-admissibility of the complainants' evidence. Permission to appeal was granted on one ground but the appeal was dismissed.

Orders

Orders of the court

Held per the Court, dismissing the appeal:

1. The trial Judge was correct to conclude that the recording of the conversation was reasonably necessary for the protection of the complainant’s lawful interests. Those lawful interests included the right to vindication through the criminal justice system.

2. Given the nature of the relationship between the appellant and the complainant, and the nature of the conversation that actually transpired, it was not unfair or improper in the circumstances to admit the pretext conversation into evidence.

3. The trial Judge’s directions as to the pretext telephone conversation were accurate and correct. The Judge made it plain in his directions what the prosecution and defence case was in relation to the characterisation of the conversation and concluded his directions by telling the jury that it was a matter for them as to how they interpreted what the appellant was saying in the conversation.

3. The common features in the evidence of the two complainants excluded the possibility of independent fabrication and therefore outweighed any prejudicial effect that the evidence had on the appellant.

4. The evidence of the complainants was cross-admissible for a similarity of account purpose. The Judge made it sufficiently clear to the jury what the permissible use of the evidence was, as distinct from the impermissible use.

5. There is no reason to suggest that the jury would not have understood that the prosecution bore the burden of proving each element of each offence beyond reasonable doubt.

Background

Background to the litigation

On 24 December 2020, a Judge of this Court granted permission to appeal on ground 1, and referred the application for permission to appeal on grounds 2, 3 and 4 to the Court of Appeal. An extension of time was also granted to file the Notice of Appeal. Background The appellant was charged with sexually abusing his two stepdaughters, the complainant and the second complainant, TH. Count 1 related to the accounts given by the complainant, while count 2 related to the accounts given by TH. The appellant was convicted only of count 1, with the jury unanimously finding the appellant not guilty of count 2. Count 1, the offence of maintaining an unlawful sexual relationship with a child, was particularised in the following way. It was alleged that the appellant on more than one occasion:1.caused the complainant to perform fellatio on him; 2.caused the complainant to touch or suck his testicles;3.caused the complainant to masturbate his penis. 4.ejaculated onto the complainant; 5.inserted his fingers into the complainant’s vagina;6.touched and rubbed the complainant’s vagina with his hand and penis; 7.attempted to insert his penis into the complainant’s vagina;8.masturbated in the presence of the complainant; and 9.caused or incited the complainant to touch her breasts and nipples in his presence. At the time of the offending, the complainant and TH were children. They were living under the same roof as the appellant with their mother and later, their younger brother. Their mother commenced a relationship with the appellant in December 1995 and their relationship ended in 2010. In relation to count 1, the prosecution case was that the appellant maintained an unlawful sexual relationship with the complainant between 1 January 1997 and 31 December 2008. The offending ceased when the complainant moved out of the family home and into a caravan at the age of 16. In relation to count 2, it was alleged that between August 2006 and August 2008, the appellant indecently assaulted TH by touching her breast. The evidence at trial At trial, the complainant gave evidence of the sexual acts that were committed against her. The sexual acts included unlawful sexual intercourse, acts of gross indecency and indecent assaults. There is some inconsistency as to when the sexual offending began. In her first interview with police, on 23 October 2018, the complainant stated that it began when the television show ‘Big Brother’ started in 2000 or 2001, when she was around eight or nine years of age. This was consistent with the evidence she gave at trial. However, in her second interview, on 21 August 2019, she stated that it began when she was aged between five and seven. The complainant stated that the offending by the appellant occurred frequently and that it usually occurred in the lounge room at night time. The appellant would allow the complainant to stay up at night watching television and gave her cigarettes in exchange for the sexual acts he was committing. The complainant would sell some of those cigarettes at school.

Evidence

Evidence Before The Court

In 2018, some 10 years after the offending ceased, the complainant told her mother that the appellant had touched her sexually. On 22 October 2018, the complainant attended a country police station and reported the matter to police.The appellant’s evidence The appellant gave evidence at trial. He denied sexual offending against either of the complainants. He stated that the complainant would come into the lounge room at night but that he would only let her watch movies or television that she wanted to watch. He denied giving her cigarettes in exchange for sexual compliance. Furthermore, he stated that the complainant’s mother was the more violent one in the relationship and that she had seriously injured him on approximately three occasions. Despite this, he did admit that he was apt to get angry and jealous during the relationship. The appellant suggested that the two complainants had conspired with their mother to make false allegations against him. The alleged motive behind this was to prevent him from having access to his son. The pretext conversation On 17 October 2019, shortly before the appellant’s arrest, the complainant engaged the appellant in a pretext telephone call. The call lasted about 30 minutes and occurred while the complainant was at a country police station. An audio recording of the call was played to the jury and they were provided with the transcript. The admissibility of, and directions concerning, this call are the subject of grounds 1 and 2 of this appeal. Whilst the appellant did not explicitly admit to the offending during the call, the prosecution case was that, in effect, he acknowledged his sexual offending against the complainant and expressed remorse for the offending. The appellant denied that he was referring to sexual offending during the conversation. In his evidence, he stated that he was merely acknowledging the anger, jealousy and drug taking that he exposed the complainant to, which made her upbringing difficult.Grounds 1 and 2 – The pretext conversation The first and second grounds of appeal concern the admissibility of the pretext conversation between the appellant and the complainant, and the directions concerning that conversation given by the Judge to the jury. In an application for directions, the appellant sought exclusion of the telephone conversation on two bases. First, it was argued that the conversation was recorded in breach of the Surveillance Devices Act 2016 (SA) (‘Surveillance Devices Act’). Second, it was contended that the recording was in breach of an internal policy of the Police Special Crimes Investigation Branch concerning pretext conversations. On 9 October 2020, the Judge ruled that the evidence was admissible. The appellant now contends the Judge was wrong to conclude that the pretext call was not in breach of the Surveillance Devices Act and it should therefore have been excluded in the exercise of either the public policy discretion or the unfairness discretion. Furthermore, irrespective of whether the conversation was in breach of the Surveillance Devices Act, the appellant contends that it should have nevertheless been excluded by the exercise of the unfairness discretion on the ground that the complainant had, in effect, acted as an agent of the police in circumstances where had the police made the call, they would have been obliged to caution the appellant that he had the right to remain silent.

Decision

Reasons for decision

In these circumstances, there is no reason to suggest that the jury would not have understood that the prosecution bore the burden of proving each element of each offence beyond reasonable doubt. We would refuse permission in respect of this ground. Conclusion We would dismiss the appeal in respect of ground 1 and refuse permission to appeal in respect of grounds 2 and 4. We would grant permission to appeal in respect of ground 3, but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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