DES v The Queen
[2020] SASCFC 32
•5 May 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DES v THE QUEEN
[2020] SASCFC 32
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Doyle and The Honourable Justice Livesey)
5 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Following a trial by judge and jury, the appellant was found guilty of two counts (counts 1 and 2) of maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA), and acquitted of one count (count 3) of indecent assault in contravention of s 56 of that Act.
The three counts each related to separate complainants and alleged offending by the appellant ranging from the mid-1980s through to the early 1990s. The complainants in relation to counts 2 and 3 (referred to as SM and KA) are sisters; and the complainant in relation to count 1 (referred to as LW) is the cousin of SM and KA. The appellant is the uncle of all three complainants.
The maximum penalty for maintaining an unlawful sexual relationship with a child is life imprisonment. The appellant was sentenced to 12 years imprisonment for count 1 and six years imprisonment for count 2. The judge made three years of the second sentence concurrent with the first sentence, resulting in an overall sentence of 15 years imprisonment. Having found the appellant to be a serious repeat offender and hence subject to a minimum non-parole period of four-fifths of the head sentence, his Honour fixed a non-parole period of 12 years.
The appellant has appealed both his convictions and his sentence.
In the appeal against conviction, the appellant relies upon three grounds.
The first ground of appeal alleges that the trial judge erred by dismissing the appellant’s application for severance of count 1 from counts 2 and 3 made at the end of the prosecution case. In developing submissions on appeal, counsel for the appellant accepted that this ground turned upon the cross-admissibility of the evidence on the various counts.
The second and third grounds of appeal allege that the verdicts in relation to counts 1 and 2 were unreasonable and cannot be supported by the evidence. In essence, the appellant contends that the inconsistencies and discrepancies in the complainants’ evidence were such that a reasonable jury ought to have had a reasonable doubt about the appellant’s guilt on both counts.
In his application for permission to appeal against sentence the appellant relies upon a single ground of appeal, namely that the sentence imposed was manifestly excessive.
Held, per Doyle J (Kourakis CJ and Livesey J agreeing), granting permission to appeal in respect of ground 1 of the appeal against conviction however dismissing the appeal against conviction, and refusing permission to appeal against sentence:
1. As a matter of ordinary human experience, the similarities in the complainants’ allegations were sufficient to give rise to an improbability of the relevant aspects of the alleged abuse being independently fabricated, imagined or otherwise mistaken. The probative value substantially outweighed any prejudicial effect that might have been engendered by reason of the multiplicity of complainants and allegations. The trial judge was correct to accept that the evidence of the three complainants was cross-admissible under s 34P(2)(a) of the Evidence Act on a similarity of account basis; and thus correct to reject the application to sever count 1. Permission to appeal in respect of ground 1 of the appeal against conviction is granted, however the appeal is dismissed on this ground.
2. The challenges to the credibility and reliability of LW’s evidence were not sufficient to require that the jury have a reasonable doubt about the appellant’s guilt. The cumulative effect of the challenges was not such as to require that the jury have a reasonable doubt. It was reasonably open to the jury, based upon LW’s evidence (particularly when viewed in combination with the corroborative evidence of AW, the complaint evidence of TH and the cross-admissible evidence of SM) to find count 1 proved beyond reasonable doubt. Ground 2 of the appeal against conviction has not been made out.
3. The challenges to the evidence of SM, either individually or cumulatively, did not require that the jury entertain doubt as to the appellant’s guilt of count 2. To the contrary, it was reasonably open to the jury, on the evidence of SM, in combination with the cross-admissible evidence of LW, to be satisfied beyond reasonable doubt as to the appellant’s guilt of that count. Ground 3 of the appeal against conviction has not been made out.
4. The two head sentences identified by the judge were entirely appropriate, bearing in mind the sentencing standard in R v D. The judge’s decision to make the second sentence partially concurrent with the first sentence was entirely reasonable and well within his Honour’s sentencing discretion. The aggregate sentence imposed was not manifestly excessive. Permission to appeal against sentence is refused.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56; Criminal Procedure Act 1921 (SA) s 102(6); Evidence Act 1929 (SA) s 34P(2)(a); Sentencing Act 2017 (SA) ss 53, 68, referred to.
Douglass v The Queen (2012) 86 ALJR 1086; Fennell v The Queen [2019] HCA 37; Hili v The Queen (2010) 242 CLR 520; Hoch v The Queen (1988) 165 CLR 292; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen [2020] HCA 12; R v C, CA [2013] SASCFC 137; R v D (1997) 69 SASR 413; R v Morse (1979) 23 SASR 98, considered.
DES v THE QUEEN
[2020] SASCFC 32Court of Criminal Appeal: Kourakis CJ, Doyle and Livesey JJ
KOURAKIS CJ: I would grant permission to appeal on ground 1 of the appeal against conviction but would dismiss the appeal. I would refuse permission to appeal against the sentence. I agree with the reasons given by Doyle J.
I make this additional observation. It is often emphasised, most recently by the High Court in Pell v The Queen[1] (Pell), that acceptance of a complainant as a credible witness is not, in itself, sufficient to prove an offence to the ‘designedly exacting standard’[2] of proof beyond reasonable doubt. The complainant’s evidence of the offence charged must also be sufficiently reliable to satisfy the criminal onus. The prosecution may fail to prove the offence beyond reasonable doubt because there is other credible evidence, inconsistent with guilt, even though the jury accepts that the complainant is an honest witness.
[1] Pell v The Queen [2020] HCA 12 at [43]-[45]; see also Douglass v The Queen (2012) 86 ALJR 1086 at [46]-[48].
[2] Douglass v The Queen (2012) 86 ALJR 1086 at [48].
So, too, for inconsistencies in a complainant’s testimony. Inconsistencies in the testimony of a child on the timing, sequence, placement and detail of offending are commonly encountered in trials of offences of child sexual abuse. That is not surprising. The circumstances which strike children as significant, and, therefore, memorable, are not the same as those which are important from the perspective of adults. A jury, with the combined life experience of its members, is well equipped to decide whether or not there are explanations for the inconsistencies in the testimony of a child that do not detract from the reliability of his or her account of the offending.
The reasons given by Doyle J demonstrate that there are credible explanations for the inconsistencies in the testimony of LW and SM, which are consistent with the truth and reliability of their accounts. However, as the High Court observed in Pell, on an appeal on the unreasonable verdict ground an appellant need not establish that the inconsistencies necessarily render his or her account incredible or unreliable. An appellant need only show that the inconsistencies are such that, notwithstanding the acceptance of a complainant’s testimony as honest and credible, no reasonable jury could have taken the further step of being satisfied beyond reasonable doubt of the commission of the offence. For the reasons given by Doyle J, the appellant has failed to show that in this case.
DOYLE J: Following a trial by judge and jury, the appellant was found guilty of two counts (counts 1 and 2) of maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”), and acquitted of one count (count 3) of indecent assault in contravention of s 56 of the CLCA.
The three counts each related to separate complainants and alleged offending by the appellant ranging from the mid-1980s through to the early 1990s. The complainants in relation to counts 2 and 3 (referred to as SM and KA) are sisters; and the complainant in relation to count 1 (referred to as LW) is the cousin of SM and KA. The appellant is the uncle of all three complainants.
The maximum penalty for maintaining an unlawful sexual relationship with a child is life imprisonment. The appellant was sentenced to 12 years imprisonment for count 1 and six years imprisonment for count 2. The judge made three years of the second sentence concurrent with the first sentence, resulting in an overall sentence of 15 years imprisonment. Having found the appellant to be a serious repeat offender and hence subject to a minimum non-parole period of four-fifths of the head sentence, his Honour fixed a non-parole period of 12 years.
The appellant has appealed both his convictions and his sentence.
In the appeal against conviction, the appellant relies upon three grounds.
The first ground of appeal alleges that the trial judge erred by dismissing the appellant’s application for severance made at the end of the prosecution case. While the application sought severance of the counts in respect of each of the complainants, on appeal the appellant accepts that counts 2 and 3 could properly have proceeded as a joint trial, but contends that there ought to have been a separate trial of count 1. In developing submissions on appeal, counsel for the appellant accepted that this ground turned upon the cross-admissibility of the evidence on the various counts.
The second and third grounds of appeal allege that the verdicts in relation to counts 1 and 2 were unreasonable and cannot be supported by the evidence. In essence, the appellant contends that the inconsistencies and discrepancies in the complainants’ evidence were such that a reasonable jury ought to have had a reasonable doubt about the appellant’s guilt on both counts.
A single judge granted permission to appeal on grounds 2 and 3, and referred the application for permission to appeal on ground 1 to this Court.
In his application for permission to appeal against sentence the appellant relies upon a single ground of appeal, namely that the sentence imposed was manifestly excessive.
Overview
The appellant was charged on Information with three counts of sexual offending.
Count 1 involved a charge of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA. The particulars of the charge were that between 19 April 1985 and 18 April 1990 at Davoren Park, the appellant maintained an unlawful sexual relationship with LW, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards LW, namely:
(a)touching LW’s vagina on more than one occasion;
(b)penetrating LW’s vagina with his finger on more than one occasion;
(c)rubbing his penis between LW’s thighs on more than one occasion;
(d)attempting to insert his penis into LW’s mouth;
(e)inserting his penis into LW’s vagina on more than one occasion;
(f)inserting his penis into LW’s anus; and
(g)performing an act of cunnilingus on more than one occasion.
Count 2 also involved an allegation that the appellant maintained an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA. The particulars of this count were that between 1 October 1988 and 30 September 1992 at Davoren Park the appellant maintained an unlawful sexual relationship with SM, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards SM, namely touching SM’s vagina on more than one occasion.
Count 3 involved an allegation of indecent assault, the particulars of which were that between 21 May 1985 and 21 May 1986 at Davoren Park, the appellant indecently assault KA, a person under the age of 12 years, by inserting his finger into her vagina.
In November 2018, an application for separate trials was made before Judge David. Her Honour found that there was a sufficient nexus between the three allegations for them to remain on the one Information. Her Honour was also satisfied that the evidence on the three counts was cross-admissible on a “similarity of account” basis, and that the probative value of the evidence substantially outweighed any prejudicial effect for the purposes of s 34P(2)(a) of the Evidence Act 1929 (SA). However, her Honour was not satisfied that the evidence was cross-admissible for a propensity purpose.
The trial commenced on 22 October 2019. The three complainants each gave evidence in the prosecution case. Their evidence may be summarised as follows.
The complainant LW’s evidence
LW was born on 19 April 1977. Her evidence was that she was repeatedly sexually abused by her uncle, the appellant, during a period that commenced when she was eight or nine years of age and concluded when she was 12 years of age (that is, a period of between about 1985 and 1989/1990).
LW said that her family moved to 23 Kilmington Road, Davoren Park when she was about five or six years of age (that is, in about 1982 or 1983). The first incident of sexual abuse occurred at night in the front room of her nanna’s[3] house at 21 Kilmington Road. She was staying the night at her nanna’s house with her sister and two friends on the night before she attended the appellant’s wedding to LL. They were all sleeping in the same room. LW woke to the feeling of something warm between her legs, which she came to realise was a penis being rubbed “back and forth” between her legs. She was shocked and initially thought it might have been one the boys sleeping in the room. But when she called that boy’s name, an adult hand was placed across her mouth. She smelt beer and heard the appellant say “shoosh”, and to “be quiet”. She recognised the appellant’s voice, although she did not see his face. The appellant stopped what he was doing and walked out of the room, and she went back to sleep.
[3] Her nanna was her maternal grandmother, and the mother of the appellant.
A week or two later the appellant, while babysitting LW and her sister (AW) at 23 Kilmington Road, was tickling LW. During the course of this, he placed his finger in her pants and touched her vagina. When he inserted his finger “just a little bit” she said to the appellant that it hurt and he stopped.
LW said that after this incident, the sexual abuse occurred “quite regularly”. Indeed, she said it occurred whenever her mother and her mother’s partner were out drinking, and her uncle was babysitting her, which she said was virtually every other weekend. She said that often her nanna was babysitting her but that her uncle, who was living next door with her nanna around this time, would come over with her and indeed sometimes tell her nanna that she could go back home while he babysat LW and her siblings.
LW described one occasion when the appellant got into her bed behind her and put his penis between her thighs. She said that she and AW slept in the same room in a bunk bed and that generally AW slept in the top bed while she slept in the bottom bed. However, on this night they had both been sleeping in the bottom bed together, with LW lying close to the wall and AW sleeping in front of her. She woke to find the appellant behind her, with his back up against the wall, and rubbing his penis between her thighs. She remembered her sister waking and running out to their mother (who she thought was in her bedroom at the time). She was not sure what AW said to their mother, but after a while (“a good eight to 10 minutes”) her mother came into the room and “pulled” or “dragged” the appellant out of her bed and told him to go home, or to “get the eff out”. LW said that the appellant was still behind her and had his pants down when her mother came into the room. He was really drunk and said something about thinking he was already home. LW could not recall anyone other than her sister, her mother and the appellant being present. She thought her nanna had been babysitting them but had already gone home by that stage.
LW also described another occasion at night time when the appellant was in her bed and he tried to put his penis into her anus. She said that it hurt her and she screamed, prompting the appellant to stop and leave the room. LW then went and washed her knickers which had a bit of blood on them. LW said AW had been in the room when this incident occurred, but by this time they had separated their bunk bed into two beds, and they were sleeping in those separate beds. She thought her sister had woken, but only after the appellant had stopped and so she did not think AW had seen what had occurred. LW said she might have been nine or 10 years of age at the time.
Another incident occurred when she was about 10 or 11 years of age on an occasion when they were having a bonfire in the backyard of her nanna’s house. She and her cousin JS (who was the appellant’s son and was a year or so younger than she was) had asked the appellant to make them a bonfire, which he did. She could not recall whether her grandparents were home that night, but said they might have been inside. She did not recall anyone else being there.
They had taken a mattress, together with a blanket and pillows out into the backyard. They were sitting on the mattress when the appellant told JS to go inside and get him a beer. When JS went inside, the appellant got on top of her. She pulled her pants down and the appellant penetrated her vagina with his penis. When it began to hurt her too much, he moved behind her and rubbed his penis between her thighs until he ejaculated on her.
When asked during cross-examination why she pulled her pants down when the appellant got on top of her, LW said “because it started becoming normal to me”.
LW said that JS returned to the backyard while the above incident was still occurring, although she said that the blanket was over her and the appellant. She could not say what JS was able to see. But at one point JS said something to the effect of “what are you doing?” and the appellant told him “don’t worry about it” and to “go and look after the bonfire”.
This was the first time the appellant had penile-vaginal intercourse with LW, but it occurred regularly thereafter. It generally occurred in her bed when her mother was out, and the appellant came into her bed.
LW described one incident that occurred when she was about 11 years of age and was babysitting at the house where the appellant was living with LL. She was babysitting two of LL’s children from a previous relationship, although she thought that the appellant and LL might also have had their first child together by then. LW said that she was asleep on LL’s bed when LL and the appellant came home. While LL was in the lounge room the appellant came into the bedroom and got into the bed behind her, pulled down his pants and started rubbing his penis between her legs. This did not last very long, and ended when LL called out that it was time for LW to go home. She said that LL could see her as she pulled her pants up in the bed before getting out of the bed and going home.
Other incidents of sexual abuse described by LW in her evidence included cunnilingus (generally as a prelude to vaginal intercourse), digital penetration on at least three occasions and an instance of attempted fellatio (although LW kept her mouth shut).
On LW’s evidence, the abuse ceased in 1989 when LW was about 12 or 12 and half years of age and went to live with her father in Sydney for six months. LW said that it was after her return from Sydney that she told TH (who was the mother of a friend of hers) what the appellant had been doing to her; not the full detail, but that he had been touching and molesting her.
The complainant SM’s evidence
SM was born on 1 October 1978. Her evidence was that she was sexually abused by the appellant and that this occurred while she was sleeping over at her grandparents’ house at 21 Kilmington Road. She was between 11 and 13 years of age, meaning that the abuse occurred between about 1989 and 1991.
SM used to live with her family in Davoren Park, only a short walking distance from where her grandparents and her auntie’s family lived. She regularly visited both her grandparents and her auntie’s family.
SM’s evidence was that she would regularly stay over at her grandparents when she was between the ages of 11 and 13 years. There was only one spare bed there, and so she and her sister (KA) used to alternate who would sleep over. SM used to stay over about once per month.
SM said that when she slept over at her grandparents, she often played with her cousins who lived next door. She recalled the appellant being present on these occasions, saying that he was usually on the lounge with her grandparents.
SM then described how she would sometimes wake up between about midnight and 2.00 am to find the appellant kneeling next to her, with his hand inside her underwear, stroking her vagina. He did not say anything to her. She would try and roll towards the wall and force his hand out of her pants. SM also said that she would climb out of the bed she was in and leave the room, in effect pretending the appellant was not there.
According to SM, abuse along these lines occurred on at least six occasions, and only stopped when she ceased going to sleepovers at her grandparents’ house.
SM’s evidence was that the appellant was living at 21 Kilmington Road throughout the period of the abuse (that is, from about 1989 to 1991). While she remembered the appellant at some point moving to 17 Kilmington Road and marrying LL, she thought this was later on. She recalled the appellant and LL at some point having a baby together, but thought it was after the period in which she was abused by the appellant.
The complainant KA’s evidence
KA is SM’s younger sister, and was born on 21 May 1980. She described spending a lot of time with her cousins (LW, AW and their brothers) when growing up. She would regularly visit both her cousins, and her grandparents, all of whom lived on Kilmington Road. She would often stay at her cousins’ house when their mothers went out together. Usually they were babysat by their grandmother when this occurred.
On these occasions she would often see the appellant, whom she described as going between the two houses. In particular, he would come over with a can of beer for her grandmother when her grandmother was babysitting them at 23 Kilmington Road. Sometimes he would stay and watch TV with her grandmother. KA said that the appellant was often very drunk; that he would stumble around the house making a lot of noise.
KA described one night when she was about 5 or 6 years of age (that is, in around 1985 or 1986) when she was asleep in a bed at her auntie’s house. She woke to find the appellant’s hand down her underwear. She felt something which she described as “wiggling” in her underwear. At first she did not know what it was. But when she rolled over, she saw the appellant standing there and realised it was his fingers. She said he was “playing around” with his fingers, and pushing his finger inside her vagina. When she looked at him, he stopped. This was about ten to 15 seconds after she had woken up. She could smell alcohol on him. KA said that her cousin AW was sleeping in the same room when this incident occurred, but that she slept through the incident. While this conduct was the subject of count 3, the appellant was found not guilty of this count.
KA did not remember ever sleeping over at her grandparents’ house. Further, on KA’s evidence, once her sister SM turned 11 years of age, she was able to babysit them and so they stopped going to their auntie’s house to be babysat. They continued to visit their cousins and grandparents, but she did not recall staying there for long periods.
Other prosecution evidence
In addition to the above evidence from the three complainants, the prosecution called evidence from LW’s sister (AW) and the complaint witness (TH).
AW was born on 3 April 1980, and gave evidence about an incident that she recalled occurring when they were living at 23 Kilmington Road and she was about eight years of age, or maybe younger. The appellant and her nanna had been babysitting her and LW because their mother was out with her friend (LG). While she usually slept in a top bunk with LW in the bottom bunk, they were together in the bottom bunk that night. She was closer to the door, with LW behind her and closer to the wall. She woke when something poked her leg. She could smell beer and got out of her bed to leave the room. As she did, she saw the appellant lying in the bed behind LW, with their heads close. She left and went into the lounge where her mother and LG had returned from their night out. She told her mother that the appellant was in LW’s bed. At first her mother brushed her off, and told her to go back to bed, but after LG intervened things “exploded”, with her mother and LG yelling at the appellant, and eventually kicking him out of the house.
The evidence of the complaint witness TH was that she met LW through her son when LW was about 15 years of age. She said that LW told her that her uncle Daryl (the appellant) had abused her; that he would come into her room when she was in bed, put his hand underneath the blanket and inside her pants, and touch her. She said that LW told her it would happen when the appellant babysat her, or when he came over while her nanna was babysitting her. She said that on occasions he would be drunk and smell of beer when it occurred. They had a number of conversations on the topic when LW was between 15 and 16 years of age, and LW told her that the incidents included not only digital penetration but also penile penetration.
Finally, the prosecution also led evidence from a Detective Wildins who described the attempts that she made to contact a number of people who might have been relevant witnesses as to aspects of the complainants’ evidence. In short, the attempts were unsuccessful in locating several of the potential witnesses and in obtaining statements from the other potential witnesses.
The defence case
The appellant gave evidence in which he denied the offending against his nieces.
The appellant’s evidence was that he moved back to Adelaide in about 1984 or 1985, and lived initially at Elizabeth South for about two years before moving to 21 Kilmington Road in 1987. He lived at 21 Kilmington Road with his mother and stepfather. His sister (KW) was living at 23 Kilmington Road with her then partner (AS) and her children (including LW and AW).
The appellant said that he commenced a relationship with LL (who already had two young children) soon after moving to 21 Kilmington Road. He began spending more time at her place (which was two houses down at 17 Kilmington Road), and by late 1988 or early 1989 he said that he was only spending about one night a month at 21 Kilmington Road. He and LL had a child together in November 1988, and ultimately got married on 26 October 1991. He had moved to 24 Kilmington Road about six months before the wedding.
The appellant said that at no stage did any of his nieces (that is, neither LW, AW, SM or KA) sleep over at 21 Kilmington Road while he was living there. He also said that he never babysat his sister’s children at 23 Kilmington Road in the evenings, although he occasionally did so (with his mother) during the day. He said that it was his mother who regularly babysat when LW’s mother went out in the evenings, but he denied going over to give his mother company on these occasions. He said that from 1988 onwards he spent very little time at 21 Kilmington Road, but never visited 23 Kilmington Road.
The appellant said that on the night before his wedding he was on his buck’s night, and walked home to 24 Kilmington Road (where he was living at the time) at about 8.00 am or 9.00 am the following morning. The appellant also denied any occasion when they had a bonfire in the backyard of the house at 21 Kilmington Road. He said that his son (JS), who lived in Victoria, had only visited once during the relevant period of time. He thought this was in 1989, when JS would have been about 11 years of age. JS stayed with him and LL at 17 Kilmington Road for about a year. The appellant later qualified this evidence by saying that JS had also visited for a few days soon after he had moved to 21 Kilmington Road. The appellant denied that LW ever babysat his or LL’s children for them at 17 Kilmington Road.
The trial judge’s summing up
As no complaint was made about the trial judge’s directions, it is not necessary for me to summarise them in any detail. It is sufficient to observe that the summing up included not only a relatively comprehensive summary of the evidence, and the prosecution and defence cases, but also several significant legal directions.
His Honour gave standard directions as to the approach to assessing the evidence of the various witnesses, including the appellant. He accompanied these directions with significant assistance as to the issues that arose in relation to the credibility and reliability of the complainants’ evidence, including the matters relied upon by the appellant in grounds of appeal 2 and 3. His Honour’s directions made it plain that the issue for the jury was not one of whose evidence was to be preferred, but rather whether the prosecution had proved the charged conduct beyond reasonable doubt.
As well as several other standard directions, the trial judge gave careful and accurate directions as to the permissible and impermissible uses of the complaint evidence, and the cross-admissible similarity of account evidence. His Honour gave a detailed forensic disadvantage direction.
Separate trials application
At the conclusion of the prosecution case, the appellant’s counsel sought the severance of count 1 from counts 2 and 3. While also contending that count 2 should be severed from count 3, counsel acknowledged that the “main thrust” of the application was the disparity in the evidence between count 1 and counts 2 and 3.
In his reasons for rejecting the application, the trial judge began by noting that the joinder and separation of counts on an Information was governed by s 102 of the Criminal Procedure Act 1921 (SA). Of particular relevance in the present case was s 102(6), which provides that where two or more counts charging sexual offences involving different alleged victims are joined on the same Information, they are to be tried together subject to the court directing a separate trial of a count relating to a particular alleged victim if, and only if, the “evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.”
As the trial judge observed, the application for severance thus turned upon the cross-admissibility of the evidence in respect of the counts involving each complainant.
His Honour noted Judge David’s earlier ruling on the issue, to the effect that the evidence of each complainant was not cross-admissible on a propensity basis (that is, on the basis that it revealed a particular propensity to engage in the sexual conduct alleged by the complainants); but that it was cross-admissible under s 34P(2)(a) of the Evidence Act on a “similarity of account” basis (that is, on the basis of a form of improbability reasoning). His Honour reasoned that, despite there having been no material change in the factual circumstances that existed when that ruling was made, he was nevertheless prepared to consider the application afresh now that the evidence had been given by the complainants.
The trial judge summarised the defence submissions to the effect that the evidence given by LW of the nature and length of sexual abuse – which progressed from surreptitious touching to conduct involving an act of anal sexual intercourse and regular acts of penile-vaginal sexual intercourse preceded by acts of cunnilingus, with some instances of sexual abuse occurring in front of her own mother, her cousin (the defendant’s son (JS)) and then the appellant’s wife – was so far removed from the accounts of sexual abuse by SM and KA – which involved the appellant touching SM on her vagina on a number of occasions and touching KA on her vagina and then inserting a finger into her vagina on only one occasion – that it could not be cross-admissible on a similarity of account basis.
In response to the defence submission that a single sexual act, as alleged by KA, could not add anything to the contended similarity of accounts, the trial judge noted that the issue was one that related to the degree of similarity between the allegations of abuse, which was not the same as the regularity of that abuse. His Honour added that just because something happened only once did not render it dissimilar to other more frequent allegations of sexual abuse made by another complainant.
After referring to the basis for the cross-admissibility of similarity of account evidence, and referring to several of the key authorities – including the reasons of Kourakis CJ in R v C, CA[4] – the trial judge reasoned as follows:
Each of the complainants in this case has given evidence that the defendant, who was their uncle, entered the bedroom in which they were sleeping and sexually abused them late at night. On those occasions, other persons were present in the house, for example, either LW's siblings, SM's grandparents and KA's cousins, as well as various adults from time to time. Both LW and KA also remember their uncle being intoxicated and smelling of alcohol.
There is little doubt on the evidence of each complainant that the alleged abuse was both opportunistic and brazen in nature, with the defendant taking advantage of his familial relationship, which provided him with access to each of his nieces, either while acting in the role of their babysitter or while they were sleeping at his home, such as SM said on the occasions she would stay at her grandparents' home (the defendant's parents) and sleep in the spare bedroom.
While the sexual abuse against LW progressed from touching of her vagina to frequent acts of penile-vaginal sexual intercourse, all complainants allege that they were touched on the vagina by the defendant.
While there are differences in the nature of the sexual abuse involving LW as against SM and KA and the frequency of the sexual abuse alleged, especially the single sexual act against KA, together with the overt brazenness of some of the sexual acts allegedly perpetrated by the defendant upon LW, which were witnessed by others, these factual disparities or differences in the evidence do not deprive the common features that do exist between the accounts of each complainant, taken as a whole, of the requisite underlying unity or pattern which emerges from their evidence.
I am satisfied that the similarities that exist between the accounts given by the complainants renders the evidence cross-admissible on each count, due to the improbability of the sexual acts having occurred other than as alleged by each complainant.
Having regard to the features of the defendant's conduct, each complainant's accounts are such as to raise the improbability, as a matter of common sense and human experience, that each of them has, independently of the other, made up a similar account of being sexually abused by their uncle.
I am satisfied that the permissible use of the similarity of account evidence substantially outweighs any prejudicial effect it may have on the defendant. In arriving at this view, I am satisfied that the permissible use of the evidence can be kept sufficiently separate and distinct from the impermissible use as mere propensity evidence, so as to remove any appreciable risk of the evidence being used by the jury in that way.
It follows that I reject the defendant's application for severance of each count and so the trial will continue before the jury.
[4] R v C, CA [2013] SASCFC 137 at [56]-[66].
Ground 1: severance of count 1
In contending that the trial judge erred in rejecting the defence application to sever count 1 from counts 2 and 3, the appellant’s counsel challenged the trial judge’s conclusion that the evidence of each complainant was cross-admissible on the basis it was similarity of account evidence that satisfied the criterion for the admissibility of discreditable conduct evidence under s 34P(2)(a) of the Evidence Act; namely, that the probative value of the evidence for a permissible use substantially outweighs any prejudicial effect.
In contending that the complainants’ evidence in this case did not possess the requisite probative value as evidence of similarity of accounts, the appellant’s counsel emphasised what he contended was the entirely different nature of the allegations of each complainant. He in effect repeated the defence submissions at trial, as summarised above.
The rationale for the admissibility of similarity of account evidence was explained by Kourakis CJ in R v C, CA:[5]
The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch).[6] It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail.
[5] R v C, CA [2013] SASCFC 137 at [57].
[6] Hoch v The Queen (1988) 165 CLR 292.
His Honour then gave the following guidance to the determination of the admissibility of such evidence:[7]
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
[7] R v C, CA [2013] SASCFC 137 at [61].
Kourakis CJ later added:[8]
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
[8] R v C, CA [2013] SASCFC 137 at [65].
While the issue was relatively finely balanced I am satisfied that the trial judge was correct to accept that the evidence of the three complainants was cross-admissible under s 34P(2)(a) of the Evidence Act on a similarity of account basis; and thus correct to reject the application to sever count 1. Further, I would adopt and endorse his Honour’s reasons (as set out above) for so holding.
As the trial judge explained, consistently with the reasons of Kourakis CJ in R v C, CA, the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Further, the focus must be upon similarity (or dissimilarity) that bears upon the improbability of fabrication, coincidence or collusion.
Here, there were several significant similarities between the allegations of the three complainants. The allegations each involved the appellant sexually abusing a young niece, and doing so by entering their bedroom late at night while they were asleep. The incidents often involved the appellant getting into bed with the relevant complainant and touching her vagina. On most occasions this occurred when the appellant was babysitting the relevant niece, or at least present while they were being babysat by their grandmother (his mother), and while smelling of beer or alcohol. The allegations were generally of both opportunistic and brazen offending. The offending was brazen in the sense that it occurred while there were others within close proximity (that is, with other children sleeping nearby or other adults within the house) and hence in circumstances involving a significant risk of detection.
It is true that the allegations of offending against KA occurred on only one occasion, and that the alleged offending against LW progressed well beyond vaginal touching to include regular instances of cunnilingus and penile-vaginal intercourse. However, not only did this additional abuse often occur in similar circumstances (that is, entering LW’s bed late at night and taking advantage of his familial relationship and role as a babysitter), but it also did not lessen the probative value of the similarities in the allegations of vaginal touching.
I am satisfied that, as a matter of ordinary human experience, the similarities in the complainants’ allegations were sufficient to give rise to an improbability of the relevant aspects of the alleged abuse being independently fabricated, imagined or otherwise mistaken. I am further satisfied for the purposes of s 34P(2)(a) of the Evidence Act that their probative value in this respect substantially outweighed any prejudicial effect that might have been engendered by reason of the multiplicity of complainants and allegations.
For these reasons, I would grant permission to appeal in respect of ground 1 of the appeal against conviction, but would dismiss the appeal on this ground.
Grounds 2 and 3: unreasonable verdicts
In grounds of appeal 2 and 3 the appellant contends that the jury’s verdicts of guilty on counts 1 and 2 respectively were unreasonable and cannot be supported having regard to the evidence. The appellant’s submission in relation to each count is that the convictions were almost entirely reliant upon the credibility and reliability of the evidence of complainants LW and SM, but that the inconsistencies and other frailties in their evidence were such that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the alleged offending.
The principles governing the consideration of these grounds are not in dispute. They were recently confirmed by the High Court in Pell v The Queen.[9]
[9] Pell v The Queen [2020] HCA 12 at [43]-[45].
The question is one of fact which this Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand; that is, whether there is a significant possibility that an innocent person has been convicted.[10]
[10] Pell v The Queen [2020] HCA 12 at [119].
In accordance with the reasons of the plurality in M v The Queen,[11] the Court must ask itself whether it thinks that upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[12]
[11] M v The Queen (1994) 181 CLR 487 at 493; Pell v The Queen [2020] HCA 12 at [43], [45].
[12] Libke v The Queen (2007) 230 CLR 559 at [113]; Pell v The Queen [2020] HCA 12 at [44]-[45].
In M v The Queen, the plurality said the following by way of elaboration upon the Court’s task:[13]
But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
… To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[13] M v The Queen (1994) 181 CLR 487 at 493-495.
It may thus be accepted that in determining whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the Court must not disregard or discount either that the jury is the body entrusted with primary responsibility for determining whether the prosecution has established the accused’s guilt, or that the jury had the advantage of having seen and heard the witnesses in the context of the evidence as a whole at trial. However, it does not follow that a jury’s apparent acceptance of the credibility and reliability of a complainant, or other witness, will be determinative.
As the High Court recently explained in Fennell v The Queen:[14]
At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.
[14] Fennell v The Queen [2019] HCA 37 at [81] (footnotes omitted).
The Court’s recent observations in Pell v The Queen are also apposite:[15]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[15] Pell v The Queen [2020] HCA 12 at [39] (footnotes omitted).
Finally, as the Court in Pell v The Queen also emphasised, in considering the significance of inconsistencies and discrepancies in the evidence, it is important not to lose sight of the fact that the ultimate question is not whether it was nevertheless possible that the alleged offending did occur as alleged by the complainant; rather, the focus must be upon whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that there was a reasonable doubt as to the defendant’s guilt.[16] The ultimate issue remains whether, despite the inconsistencies and discrepancies, it was reasonably open to the jury to find it proven beyond reasonable doubt that the defendant committed the charged offence.
[16] Pell v The Queen [2020] HCA 12 at [46].
Challenges to the evidence of complainant LW
The challenges made to the evidence of complainant LW in support of count 1 may be summarised or grouped as follows:
1. inconsistencies in the evidence as to the timing of the abuse;
2. the inherent implausibility of some of LW’s allegations;
3. inconsistencies or differences between the evidence of LW and AW as to the incident AW gave evidence about; and
4. LW’s false allegations about abuse by her stepfather (AS).
The appellant contends that in light of these difficulties or frailties in LW’s evidence, at least when considered cumulatively, it was not reasonably open to the jury to be satisfied beyond reasonable doubt as to the appellant’s guilt of count 1. It is convenient to address each of the contended difficulties or frailties individually before then considering their cumulative effect.
Inconsistencies in the evidence as to timing
LW anchored the commencement of the abuse she suffered in an occasion that occurred when she was eight or nine years of age whilst she was staying at her grandparents’ house on the night before the appellant’s wedding to LL. She said that the abuse concluded when she was about 12 years of age when she moved to Sydney for six months to live with her father.
Given that LW was born on 19 April 1977, her evidence as to her age at the time of the abuse placed the abuse during a time period commencing in about 1985 or 1986, and ending in about 1989. Further, as summarised earlier, the effect of LW’s evidence was that most of the incidents of abuse occurred either when she was staying over at her grandparents’ home at 21 Kilmington Road or being babysat in her own home at 23 Kilmington Road.
A difficulty with LW’s evidence is that while she said the first incident occurred the night before the appellant’s wedding to LL, the appellant’s evidence, confirmed by a marriage certificate received into evidence, was that he and LL got married on 26 October 1991. While the appellant denied being at 21 Kilmington Road the night before the wedding, more importantly, this date would have the abuse commencing when the appellant was about 14 and a half years of age and so about six years after the age when LW said she was first abused by the appellant.
While the jury was required to consider this discrepancy in the evidence as to timing, the issue was not quite as stark or significant as the appellant’s submissions at first blush suggest. There were other aspects of the evidence that may quite reasonably have led the jury to consider that LW must have been mistaken in her reference to the appellant’s wedding without otherwise undermining her credibility and reliability as to the abuse she described.
It is true that in her evidence in chief, LW seemed fairly confident that the first incident occurred the night before the appellant’s wedding. That said, the focus of LW’s recollection and evidence was more on the dress she wore the day following the first incident of abuse rather than the wedding itself. Having said that she was eight or nine years of age at the time, and staying over at her nanna’s, she said that she remembered that the following day she wore “a pretty pink dress”. While she initially said she wore the dress to the appellant’s wedding, she later clarified that she did not recall in fact going to the wedding. She only remembered getting ready for the wedding and “putting my beautiful dress on”.
Further, when later confronted with the suggestion that the appellant did not marry LL until 26 October 1991, when LW would have been 14 and a half years of age, she accepted this must be so, but added “I just remember going to a wedding”, which “as far as I remember” was the wedding of the appellant and LL. LW said that even if she was wrong about the date, the abuse happened as she described.
Significantly, even on her own evidence, LW not only said the abuse ended when she moved to Sydney, but also gave the timing of this move as about 1989 (which she said was while she was in year 8 at school and 12 and a half years of age). Thus, on the logic of this aspect of her evidence, the abuse occurred in the three or four years preceding this date, and hence during the time period suggested by the age range she gave for when the abuse occurred.
In my view, the jury were reasonably entitled to have resolved this discrepancy by proceeding on the basis that LW was mistaken in connecting the first incident she described with the appellant’s wedding. It is not as though her evidence as to the incident of abuse was in any way factually connected to the wedding itself. Her linking of the timing of the abuse to the wedding was only by virtue of the dress she recalled wearing the day after the abuse, and which she thought she recalled wearing to the wedding. Not only was the detail about the dress peripheral to the abuse itself, but also her evidence left it open to the jury to conclude that she was mistaken as to whose wedding, or indeed what function, she wore the dress to. The jury were entitled to proceed on the basis of the balance of LW’s evidence, which was to the effect that the abuse occurred during the period from about 1985 to 1989.
However, as the appellant’s counsel points out, there were also potential difficulties even with this suggested timeframe for the abuse.
On the appellant’s evidence, he moved back to Adelaide in about 1984 or 1985, but initially lived at Elizabeth South for about two years. On his evidence, he did not move to 21 Kilmington Road until 1987. Further, by some point in 1988 he had met his future wife LL and had begun spending much of his time at her place (at 17 Kilmington Road).
If the appellant’s evidence as to timeframes were accepted by the jury then this suggested a window of opportunity within which the abuse might have occurred that commenced about a year after LW had suggested, and which somewhat narrowed in terms of opportunities for the abuse to have occurred from 1988 onwards.
But I do not accept that the jury was required to take too rigid a view of the timeframes or opportunities suggested by the appellant’s evidence. While the appellant was not significantly challenged as to the evidence he gave about the timing of his move to 21 Kilmington Road, and the limited time he spent at that address in the years that followed, his evidence was expressed in terms of a general recollection rather than anything more precise. In my view, while there was a degree of inconsistency or discordance between the evidence of LW and the evidence of the appellant as to the timeframe and opportunities within which any abuse must have occurred, it was not so stark or significant as to require doubt as to the credibility or reliability of the critical aspects of LW’s evidence. Indeed, the jury would have been entitled to bring a degree of scepticism to the appellant’s evidence on the basis that he appeared to downplay the extent of his presence at both 21 and 23 Kilmington Road during the relevant period.
Of course, the appellant not only gave the above evidence that narrowed the timeframe or opportunity for the alleged abuse, but also denied that he ever babysat LW during the relevant period. While this aspect of the appellant’s evidence was in direct collision with LW’s evidence, I consider that the jury was nevertheless entitled to accept LW’s evidence on this issue. Her evidence in this respect received some support from the evidence of AW.
A final aspect of the issues that arose in relation to timing concerned the complaint evidence of TH. LW’s evidence was that she told TH about the abuse when she returned from Sydney. On LW’s evidence she would have been about 13 years of age at the time. On the other hand, TH’s evidence was that the series of conversations in which LW informed her that she had been abused by the appellant occurred when LW was about 15 years of age.
While this discrepancy in timing was again a matter that the jury was required to consider when assessing LW’s evidence, I do not think it was a matter of much moment. While TH proffered an estimate of LW’s age at the time of the complaint to her, the jury were entitled to approach her evidence on the basis that not only was she not purporting to be definite or precise as to timing, but also that it would be entirely understandable given the time that had passed when she came to give evidence if she (or indeed LW) were out by a year or two as to the timing of their conversations. In my view, this discrepancy as to timing did little to affect the significance of the complaint evidence to LW’s credibility, let alone to undermine LW’s credit and reliability more generally.
Implausibility of allegations
The next matter emphasised by the appellant’s counsel is the contended inherent implausibility of some aspects of LW’s evidence. He relied in particular upon LW’s evidence that the accused engaged in penile-vaginal intercourse with LW within the apparent view of the appellant’s son, the appellant’s wife and LW’s mother respectively.
I have earlier summarised LW’s evidence as to the three incidents. There is no doubt that, on LW’s evidence, the appellant’s offending on these occasions was particularly brazen and accompanied by a significant risk of detection. However, insofar as the implausibility is said to arise from the lack of reaction to the abuse that LW said occurred, it is significant that on a close reading of LW’s evidence of those occasions, it is not clear precisely what others would have in fact seen or appreciated.
In the case of the incident on the occasion of the bonfire, the appellant did tell his son to go inside, but must have anticipated that he might shortly return, as indeed he did. Whilst his son must have noticed something was occurring between the appellant and LW, and indeed made a comment reflecting this, the precise nature of what was occurring was likely to have been obscured by the blanket that LW said was over the top of her and the appellant. And, of course, as JS was only about 10 or 11 years of age, he may not have appreciated the significance of whatever he was able to observe.
In relation to the other two incidents, on LW’s evidence both her mother and the appellant’s wife (LL) saw her and the appellant in bed together. However, it does not follow that either of them realised, let alone saw, that sexual activity had occurred.
In the case of the former, it would appear LW’s mother saw the appellant in bed with LW, and may have seen that the appellant had his pants down. While she may not have appreciated the full extent of what (on LW’s evidence) had occurred, it is plain that she appreciated the inappropriateness of the appellant being in LW’s bed. LW described her mother, who was the appellant’s sister, yelling and swearing at the appellant to go home, and indeed dragging him out of LW’s bed. LW also described the appellant as being very drunk and saying (or offering as an excuse) that he thought he was already at home.
In the case of the incident while LW was babysitting for the appellant and LL, LL appears to have seen LW and the appellant in the same bed, and to have thereafter told LW that it was time for her to go home. While LW said she had to pull up her pants when LL told her to leave, her evidence was that she did so while still in the bed. It is not entirely clear on LW’s evidence what LL saw and hence the extent to which she would have realised what her husband was doing to LW.
In summary, each of these three incidents was particularly brazen, and involved a high risk of detection. While the likelihood of the appellant engaging in such behaviour was a matter the jury needed to bear in mind, this fell to be considered in the context of what was in almost all respects a very brazen course of conduct by the appellant towards LW. Generally, and hence not just in respect of these three incidents, the appellant appears to have had little regard to the risk of detection. On several occasions he made either no, or only the most rudimentary, efforts to conceal his behaviour. While his brazenness was a relevant consideration, and might have led the jury to at least question the plausibility of LW’s evidence, I do not think that it required doubt on the part of the jury as to the credibility or reliability of LW’s evidence.
To the extent that the contended implausibility of the above three incidents was said to stem from the limited reactions of the appellant’s son, LW’s mother and the appellant’s wife, I have explained that in each case the evidence did not make plain the precise extent of what these people saw or appreciated. And, in any event, in each case there was at least some form of reaction to what they observed.
Inconsistencies or differences between the evidence of LW and AW
In challenging the credibility and reliability of LW’s evidence, the appellant’s counsel also relied upon the inconsistencies, or at least differences, between the evidence of LW and AW as to the incident that the latter described in her evidence.
I have earlier summarised the evidence of both LW and AW in relation to the incident. Significantly, both described an incident in which AW was sleeping in LW’s bed (being the bottom bed of their bunk bed in their home at 23 Kilmington Road) when the appellant got into the bed, resulting in AW waking up and going and speaking to their mother. Both were consistent with their description of how the three of them were positioned in the bed, with the appellant closest to the wall, then LW and then AW. They both mentioned the appellant smelling of beer. They were both also consistent in their evidence to the extent that they described the incident as culminating in the mother of LW and AW yelling at the appellant and effectively kicking him out of the house.
It is true that there was an inconsistency, or at least difference, between their evidence in that AW said that in addition to their mother, their mother’s friend LG was also present, and indeed was involved in yelling at the appellant (after AW had woken) and telling him to leave. While LW did not make any reference to LG’s presence or involvement in the incident, I do not regard this as particularly significant. It is perhaps not unnatural that she focussed upon, and only remembered, her own mother’s reaction and intervention. LW’s inability to recall her mother’s friend’s involvement is also unsurprising given the time that had passed between the incident and when LW came to give evidence.
The appellant’s counsel also contended that there was an inconsistency between the evidence of LW and AW as to the timing of this incident. The submission in this respect was that AW said that she was born in April 1980 and that the incident occurred when she was about 8 years of age, whereas on LW’s evidence it did not occur until some date after the appellant’s wedding (which other evidence revealed was in October 1991). However, accepting my earlier reasoning to the effect that the jury was reasonably entitled to conclude that LW was mistaken in anchoring the commencement of the abuse she suffered by reference to the appellant’s wedding, then this asserted inconsistency as to timing evaporates.
In summary, I regard the substantial degree of consistency between the two accounts of LW and AW as to the incident described by the latter as more significant than the inconsistencies or differences relied upon by the appellant’s counsel. Certainly I do not think that the inconsistencies or differences, such as they were, were sufficient to require doubt as to LW’s evidence as to this incident, let alone more generally.
False allegations of abuse by stepfather
Finally, the appellant’s counsel contended that LW’s admission in her evidence that she falsely accused her stepfather (AS) of sexually abusing her ought to have caused the jury to have had concerns about LW’s credibility in relation to the allegations against the appellant.
It was an agreed fact that in May 1986, and so when LW was nine years of age, she was examined at the sexual assault referral centre at the Queen Elizabeth Hospital. In her evidence, LW acknowledged that this related to a false accusation by her that she had been sexually abused by her stepfather.
While it was, of course, a significant matter that LW was prepared to lie about a matter as serious as sexual assault on another occasion, I do not think this was a necessarily fatal blow to the credibility of LW’s allegations against the appellant, or otherwise required the jury to entertain a doubt as to those allegations. Rather, the weight to be attached to this consideration, like the assessment of her credibility and reliability, remained a matter for the jury. In that respect, it was of some relevance that the fact of this past false allegation – which was made on a serious occasion, albeit not on oath – was essentially volunteered by LW. Certainly, it was not something she tried to hide or deny when confronted with it in her evidence.
Further, when closely examined, LW’s evidence on this topic was problematic for the appellant. Her evidence relevantly included the following:
Q.In May 1986, when you were about nine years of age, you told someone at the Queen Elizabeth Hospital that [AS] had been sexually molesting you.
A. Yes.
Q.I won’t go into all the details but that was at a time when [AS] was still living with your mum.
A.Yes, but my mum wanted him out of our life. He used to beat us up, beat my mum up.
Q.But, in fact, your mother, at the time, didn’t want you to tell the hospital or the doctors about any of this, did she.
A. No, she didn’t. My nan didn’t want me to tell anybody. My mum told me to lie.
Q.Are you sure about that. Are you sure your mum wasn’t the person saying ‘Well, don’t tell the doctors about what he’s been doing to you.’
A. No. She told me to lie and say it was somebody else.
Q.So you say that you recovered from your mum asking you to lie, went to the Queen Elizabeth Hospital and lied about someone sexually abusing you.
A. Yes.
…
Q. The things you alleged against [AS] –
A. He never touched me –
Q. – about him sexually abusing you were not true.
A.No, it wasn’t. It wasn’t him, it was my uncle Daryl [the appellant] touched me but my mum made me lie.
The problematic aspect of this evidence from the appellant’s perspective is that LW’s evidence was not that she falsely accused her stepfather of sexual abuse that had not occurred at all. Rather, the effect of her evidence was that she had in fact been abused by someone (and she named the appellant), but that her mother told her to lie and blame it on her stepfather, apparently because her mother wanted him out of their lives.
Not only was it significant that she named the appellant as the true perpetrator of the sexual abuse, but also that the agreed fact was that the abuse was reported in May 1986, which fits with LW’s evidence that the appellant’s abuse of her had commenced by the time she was nine years of age.
It was perhaps also significant that it was implicit in LW’s evidence as to the false allegation that she was encouraged to make, that her mother (and also, it would seem, her nanna) were aware of the abuse by the appellant but were apparently not concerned enough to ensure that he was identified as the perpetrator. This apparent attitude by LW’s mother (and perhaps also her nanna) might be seen as consistent with the appellant’s apparent lack of concern about being observed by them abusing LW.
Conclusion
For the reasons set out, I do not consider that any of the above challenges to the credibility and reliability of LW’s evidence were sufficient to require that the jury have a reasonable doubt about the appellant’s guilt. Nor do I consider that the cumulative effect of those challenges was such as to require that the jury have a reasonable doubt. In my view, it was reasonably open to the jury, based upon LW’s evidence (particularly when viewed in combination with the corroborative evidence of AW, the complaint evidence of TH and the cross-admissible evidence of SM) to find count 1 proved beyond reasonable doubt.
It follows that ground 2 of the appeal against conviction has not been made out.
Challenges to the evidence of complainant SM
The challenges made to the complainant SM’s evidence in support of count 2 may be summarised or grouped as follows:
1. inconsistencies between her evidence as to the timing of the abuse and the appellant’s evidence about when he lived at 21 Kilmington Road; and
2. inconsistencies between her evidence and that of KA.
As to the first of these, on SM’s evidence she was abused on various occasion between the ages of 11 and 13 (that is, between about 1989 and 1991), and this abuse occurred at her grandparents’ house at 21 Kilmington Road, and during a period while the appellant was living at that address. However, on the appellant’s evidence, he had ceased living at that address by that point in time. He was living a few houses down the road with LL, and was only spending about one night a month at 21 Kilmington Road.
On the face of it, there is a tension between the evidence of SM and the appellant. While it is true that the appellant’s evidence as to his living arrangements was not significantly challenged, as I explained earlier, his evidence in this respect was relatively general. The complainant SM’s evidence was similarly general in its terms. Indeed, given the time that had passed it was entirely to be expected that the evidence as to such matters would not be precise. In my view, it was reasonably open to the jury to conclude either or both SM and the appellant were slightly out in the time frames they gave, or that even after he had moved in with LL, the appellant continued to stay at 21 Kilmington Road more frequently than the approximately once a month estimate that he gave. I do not consider that the tension between the evidence of SM and the appellant as to timing and opportunity was of such a nature as to require a reasonable doubt on the part of the jury as to count 2.
Turning to the contended inconsistencies between the evidence of SM and her sister KA, it will be recalled that SM’s evidence was that she was abused at least six times when she was between the ages of 11 and 13 (that is, between about 1989 and 1991). She said that each such occasion of abuse occurred when she was staying at her grandparents’ house at 21 Kilmington Road; and that she and KA used to take turns in staying over at their grandparents’ house regularly during this period. However, on KA’s evidence, she did not recall ever staying the night at their grandparents’ house. And while they did regularly spend evenings at their auntie’s house at 23 Kilmington Road, KA said that even this ceased once SM turned 11 years of age and so was old enough to babysit them at their own house.
There is once again a tension in the evidence, this time between the evidence of SM and KA as to timeframe within which any abuse might have occurred and the opportunities for the appellant to have committed the abuse. Again, this was a matter the jury needed to take account of, but I do not think necessarily required doubt as to SM’s evidence in relation to count 2. I consider that the jury were entitled to resolve this tension by accepting that either or both of SM and KA must have been incorrect in relation to the timeframes they gave for their sleepovers at 23 Kilmington Road, and further that despite KA’s evidence, SM did in fact sleep over at their grandparents’ house (rather than, or as well as, their auntie’s house) during the relevant period.
In summary, I am not satisfied that the challenges to the evidence of SM, either individually or cumulatively, required that the jury entertain doubt as to the appellant’s guilt of count 2. To the contrary, I am satisfied that it was reasonably open to the jury, on the evidence of SM, in combination with the cross-admissible evidence of LW, to be satisfied beyond reasonable doubt as to the appellant’s guilt of that count.
It follows that ground 3 of the appeal against conviction has not been made out.
Appeal against sentence
Following the jury finding him guilty of two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA, the appellant fell to be sentenced by the trial judge. The maximum penalty for each count was life imprisonment. The judge started with sentences of 12 years imprisonment for count 1 (involving the complainant LW), and six years imprisonment for count 2 (involving the complainant SM). His Honour made three years of the second sentence concurrent with the first sentence, resulting in an overall sentence of 15 years imprisonment. Having found the appellant to be a serious repeat offender, and hence subject to a minimum non-parole period of four-fifths of the head sentence, the judge fixed a non-parole period of 12 years.
In his application for permission to appeal against sentence, the appellant’s sole ground of appeal is that the sentence was manifestly excessive.
Before addressing the matters advanced by the appellant in support of his contention of manifest excess, it is appropriate to summarise the matters relevant to the judge’s exercise of the sentencing discretion. It is convenient to do so by way of summary of the matters addressed by the judge in his sentencing remarks.
The sentencing remarks
The judge summarised the appellant’s offending in the following terms:
The offending occurred during the 1980s and early 1990s, when [LW] was aged between about eight and 12 years and [SM] aged between about 11 and 13 years. [LW] and [SM] were cousins and the daughters of your sisters.
The sexual abuse of [LW] was much more extensive and serious than against [SM], and included sexual acts of indecent assault by touching her on the vagina and rubbing your penis on her vagina, as well as sexual acts of unlawful sexual intercourse involving digital penetration of her vagina and penile-vaginal and anal sexual intercourse and cunnilingus. There was also one sexual act of you attempting to place your penis into her mouth.
The sexual abuse of [SM] involved you touching her on the vagina.
You were often drunk when you sexually abused your nieces. [LW] was principally abused by you when you were babysitting her at your sister’s home, while [SM] was abused at your parents’ home when she stayed there on weekends.
The judge next mentioned that the appellant has not accepted the jury’s verdicts, and maintains that he did not abuse his nieces.
In their victim impact statements, both LW and SM described the significant impact the sexual abuse has had upon them. LW described living her life feeling ashamed and disgusted. She said she did not feel comfortable in her own skin. She has instilled a fear of men in her own daughter because of the appellant’s abuse. SM also described experiencing issues in trusting men, and over her own body image, which she attributed to the appellant’s abuse of her.
Turning to the appellant’s personal circumstances, he is 62 years of age. He has a criminal record, mainly involving motor vehicle offences and in particular drink driving offences. However, he has also received two suspended sentences of imprisonment in 2005 and 2018 for defrauding the Commonwealth, being for offending that the judge described as ‘Centrelink fraud’.
The appellant’s parents separated when he was three years of age. He was thereafter raised by his grandparents until he left school at 14 years of age to join the workforce. At 17 years of age, he joined the army where he served for six years. During that time, he married and had two children. When that marriage ended, he returned to South Australia, while his children remained living with their mother in Victoria.
As set out in the summary of the appellant’s evidence in my reasons on the appeal against conviction, when he returned to South Australia, the appellant moved in with his mother and stepfather, living initially at Elizabeth South before moving to Davoren Park. Despite being aged in his 20s, he was both physically and sexually abused by his stepfather.
After moving to Davoren Park, the appellant became involved with a woman (LL) whom he eventually married. They had a daughter together in November 1988, married in October 1991 and subsequently had a further child together. The marriage to LL eventually ended, and the appellant formed another relationship and married for a third time in 2011. The judge was informed that this third marriage is still strong.
The appellant has had long-term issues with heavy drinking, which not only featured in his offending in the present case but also affected his employment. He also took to gambling. It seems that the need to fund his gambling and alcohol addictions contributed to his decision to defraud the Commonwealth. The appellant has also experienced some mental health difficulties. Following the break-down of his second marriage (to LL), he developed depression and became suicidal, resulting in his admission to Glenside Hospital.
In more recent times the appellant has begun to address his gambling and alcohol addictions through counselling. This enabled him to re-enter the workforce, and to undertake a period of regular employment. The judge accepted that, leading up to the trial of these proceedings, the appellant had been in as good a place psychologically as he had been for many years.
Two years ago, the appellant was diagnosed with prostate cancer, which the judge noted would obviously require monitoring through the Prison Health Service.
The judge noted that the appellant was to be sentenced on the basis he was a serious repeat offender for the purposes of s 53 of the Sentencing Act 2017 (SA), with the consequence both that the Court was not bound to impose a sentence that was proportionate to the offending, and that the non-parole period must be at least four-fifths of the sentence. However, the judge determined that in the appellant’s case it was not necessary to impose a disproportionate sentence in order to achieve the objectives of sentencing.
The judge then explained the sentence that he determined to impose in the following terms:
The persistent sexual abuse of children by persons in a position of trust, as you were, is viewed as an extremely serious offence warranting the imposition of a substantial sentence of imprisonment to protect children from being sexually abused; to mark the community’s abhorrence at such behaviour and to punish you and deter others from engaging in such shameful and harmful behaviour towards children.
The Parliament has adopted the sentencing standards enunciated in R v D (1997) 69 SASR 413 as being a consideration to which the court must have regard when sentencing for offences of this nature.
Taking into account those sentencing standards, I sentence you to imprisonment for 12 years for the offence you committed against [LW], there being no reason to depart from the sentencing standard.
In relation to the offence against [SM], I sentence you to six years imprisonment, which is less than the standard because the nature and frequency of that sexual offending was nowhere near as extensive and protracted as with [LW], nor did it involve any penetrative sexual acts.
Ordinarily, it would be appropriate to accumulate the sentences, however, in my view, that would produce a final sentence which would be disproportionate to the totality of your offending behaviour and would produce a crushing outcome for you. As such, I will order that three years of the sentence involving [SM] be served concurrently with the sentence imposed in relation to [LW], resulting in a sentence of 15 years imprisonment.
In accordance with the legislation declaring you a serious repeat offender, I fix a non-parole period of 12 years, which is four-fifths of the sentence.
Manifest excess
In considering the appellant’s contention that the sentence imposed by the judge was manifestly excessive, I bear in mind the approach to the identification of manifest excess required by the High Court in Hili v The Queen.[17] This requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[18] In the context of sentencing for multiple offences, regard must also be had to the need to ensure proportionality in the overall sentence. But ultimately, manifest excess is a conclusion that may not admit of lengthy exposition.[19]
[17] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
[18] R v Morse (1979) 23 SASR 98 at 99.
[19] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
The appellant accepted in his written submissions that the offending was serious and attracted a starting point reflecting the standard in R v D.[20] A submission was tentatively advanced that a lower penalty might be appropriate in circumstances where the offender was a serious repeat offender, and hence attracted a mandatory non-parole period of four-fifths of the head sentence. It was submitted that this would be appropriate in circumstances where that standard was set in a sentencing environment that did not include the legislative overlay of mandatory minimum non-parole periods for serious repeat offenders.
[20] R v D (1997) 69 SASR 413.
To the extent this submission was pressed, it must be rejected for two reasons. The first is that even though the standard in R v D was devised prior to the introduction of the legislative overlay in respect of serious repeat offenders, that standard has nevertheless become legislatively enshrined by reason of s 68 of the Sentencing Act 2017 (SA). The second is that I do not think that consideration of the non-parole period that might be imposed in respect of a particular offender should affect the head sentence that it is appropriate to impose in respect of that offender. To allow it to do so would, in my view, involve impermissible backwards reasoning.
Other matters emphasised by the appellant’s counsel in support of the submission of manifest excess were (i) the fact that while the appellant had offended since the abuse of LW and SM, he had not committed any offences of a similar nature; (ii) there was evidence of some form of rehabilitation at least in respect of offending of the present type; and (iii) the aggregate head sentence of 15 years was crushing for a person of the appellant’s age (62 years).
The first two matters raise the same consideration. While it was relevant that the appellant had not engaged in similar offending during the significant period of time since the subject offending, I do not think it was a matter of great significance in the scheme of things. I do not think that it is a basis for contending manifest excess in the sentences imposed.
As to the third matter, I do not consider that the aggregate head sentence of 15 years was crushing, or lacking in proportionality, even having regard to the appellant’s age.
The offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA is a particularly serious offence, as reinforced by specification of a maximum penalty of imprisonment for life. As reflected in the sentencing standard in R v D, it generally calls for the imposition of a substantial period of imprisonment so as to protect children from abuse, to punish the defendant, to mark the community’s abhorrence of such offending, and to deter the defendant and others from engaging in such offending.
In the present case, both counts were serious instances of the offence of maintaining an unlawful sexual relationship with a child, involving as they did repeated sexual offending over a relatively extended period of time against two of the appellant’s young nieces. The offending against LW was particularly egregious, given the number and seriousness of the incidents of abuse that it entailed. It included a number of instances of penetrative sexual abuse. Both offences also involved gross breaches of trust on the part of the appellant given that he was their uncle and that the offending occurred in circumstances where he was babysitting his nieces. And, unsurprisingly, the victim impact statements made it plain that the offending had had significant and long-term consequences for the two victims.
The judge summarised the personal circumstances of the appellant, including his own history of being physically and sexually abused, difficulties with alcohol and gambling addiction, and his current health concerns. While of course relevant to the sentencing discretion, they provided little scope for mitigation or leniency – particularly in circumstances where, as I have said, the appellant has not demonstrated any contrition or remorse and indeed continues to deny his offending.
In my view, the two head sentences identified by the judge were entirely appropriate, bearing in mind the sentencing standard in R v D. Given that the two counts involved quite separate offending against two different victims, it might have been open to the judge to make those sentences cumulative. However, in my view, given the similarity in the nature of the offending and closeness in the timing of their commission, there was some overlap in terms of what was necessary to achieve the objectives of the sentencing exercise in respect of each of the offences. Having regard to this, and the need to ensure that the aggregate sentence was not only proportionate to the offending but also the circumstances of the offender (particularly having regard to his age and poor health), I consider that it was appropriate that the judge make some allowance for these considerations. The judge’s decision to do so by making the second sentence partially concurrent with the first was, in my view, entirely reasonable and well within his sentencing discretion. I do not accept that the aggregate sentence imposed was manifestly excessive.
Conclusion and orders
For the reasons set out, I would grant permission to appeal in respect of ground 1 of the appeal against conviction. However, I would dismiss the appeal against conviction.
I would refuse permission to appeal against the appellant’s sentence.
LIVESEY J: I agree with Doyle J. On the question of severance (ground 1), which turned on the question of cross admissibility on a “similarity of account” basis pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA), I agree that the issue was “finely balanced”. As it was put by counsel for the appellant, on one view the problem was that the evidence of the complainants “was no more than the evidence which would almost always present itself when a male is accused of sexually abusing a female”.[21]
[21] T32.25-27.
Whilst that may be a relevant consideration when determining admissibility, it is ultimately resolved by a decision by the trial Judge about the extent to which the degrees of similarity of account bear on the improbability of independent fabrication or coincidence. This, together with whether the permissible and impermissible uses can be kept sufficiently separate and distinct so as to remove the risk of impermissible use, will determine cross admissibility.[22]
[22] Whatever the complexities associated with the application of s 34P, any attempt to admit propensity evidence “more readily” carries with it the risk of undue complexity and inefficiency, see the recent observations made about the model provisions developed following the Royal Commission into Institutional Responses to Child Sexual Abuse; François Kunc, ‘The Case for Principled and Practical Propensity Evidence Reform’ 94 Australian Law Journal 239, 239-240.
As Doyle J has demonstrated, the “several significant similarities” he has outlined across the accounts of the complainants, together with the trial Judge’s ruling and careful directions to the jury, all combined to show that the evidence had a strong probative value which substantially outweighed any prejudicial effect, and any appreciable risk of the evidence being used impermissibly could be, and ultimately was, removed. Whilst it was not beyond argument, the evidence in this case was not merely that which “would always present itself” in cases of sexual abuse by a male of a female.
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