DJ v The Queen

Case [2020] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

DJ v THE QUEEN

[2020] SASCFC 18

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)

17 March 2020

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

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

CRIMINAL LAW - EVIDENCE - COMPLAINTS

The appellant was convicted of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was his niece. The appellant contended that the primary judge erred in failing to give a direction as to the forensic disadvantage suffered by the appellant and further, he erred in failing to give appropriate directions about the complaint evidence.

Degree of consistency between complaint evidence and evidence overall – evaluative process – whether there was a risk the jury would have reasoned improperly due to the judge’s directions – delay between alleged offending and trial – whether a forensic disadvantage direction was required

Held, per Lovell J (Peek and Bampton JJ agreeing), allowing permission to appeal in respect of Ground 1, but dismissing the appeal:

1. The primary judge gave the appropriate direction about the complaint evidence.

2. There was no significant forensic disadvantage suffered and a direction was not required.

Evidence Act 1929 (SA) ss 34M, 34CB, referred to.
R v H, T (2010) 108 SASR 86; R v Cassebohm (2011) 109 SASR 465; R v Parry [2017] SASCFC 66; Crampton v The Queen (2000) 206 CLR 161; R v W, PK [2016] SASCFC 3, considered.

DJ v THE QUEEN
[2020] SASCFC 18

Court of Criminal Appeal:       Peek, Bampton and Lovell JJ

  1. PEEK J:   I would dismiss the appeal.  I agree with the reasons of Lovell J and the orders he proposes.

  2. BAMPTON J:     I would grant permission to appeal on ground 1 but dismiss the appeal for the reasons given by Lovell J.

    LOVELL J.

    Overview

  3. The appellant is the uncle of the complainant, K. K alleged that the appellant sexually abused her on multiple occasions commencing when she was five years old. It ceased when she was approximately 10 years of age. The alleged offending ceased in approximately October 2016. 

  4. The appellant was charged with maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant pleaded not guilty but the jury returned, by majority, a verdict of guilty.

    Issues on appeal

  5. There are two grounds of appeal. The appellant contended that the primary judge erred in failing to give appropriate directions about the complaint evidence of K (Ground 3) and further, he erred in failing to give a direction as to the forensic disadvantage suffered by the appellant (Ground 1). Ground 2 was not pursued.

  6. For…

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AGLC
DJ v The Queen [2020] SASCFC 18
Case
[2020] SASCFC 18
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for offences against a child, specifically maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant, who was between 18 and 23 years of age during the period of offending, appealed his conviction. The complainant, K, was between five years, 11 months and 10 years, 11 months old during the offending. The offending occurred on various occasions when K visited her paternal grandmother, with whom the appellant resided.

The central legal issue before the court was whether the primary judge’s directions to the jury regarding complaint evidence, pursuant to section 34M of the *Evidence Act 1929* (SA), were adequate. Specifically, the appellant argued that the judge failed to properly direct the jury on the "degree of consistency of conduct" of the alleged victim, as required by section 34M(4)(a)(ii) of the Act. The appellant contended that the absence of the precise phrase "degree of" meant the jury was not adequately instructed to engage in an evaluative process regarding the consistency of the complaints.

The court considered the wording of section 34M(4)(a)(ii) and acknowledged that while a particular form of words is not strictly required by section 34M(5), the legislative amendment to include "degree of" indicated Parliament's intention for juries to undertake an evaluative process. However, the court examined the primary judge's actual directions, which informed the jury that the complaint evidence was admitted to demonstrate consistency of conduct and asked them to judge whether the circumstances of the complaint appeared consistent with the alleged conduct. The court found that while the precise phrase "degree of" was not used, the judge's directions conveyed the necessary evaluative aspect, allowing the jury to determine the significance of the evidence in the circumstances.

The court determined that permission to appeal should be granted on the first ground, but ultimately dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would dismiss the appeal.Background During the period of offending, K was aged between five years, 11 months and 10 years, 11 months. The appellant was between 18 and 23 years of age. At the time of the offending, the appellant lived with his mother, K’s paternal grandmother. The offending occurred on various occasions when K and her siblings visited her grandmother and the appellant. The offending The complainant was interviewed by police on two occasions: 29 July 2017 and 9 April 2017. The prosecution tendered both interviews at trial and they were admitted into evidence pursuant to s 13BA of the Evidence Act 1929 (SA).[1] The prosecution led no further evidence from K but she was cross-examined by defence counsel. [1] Exhibit P1; Exhibit MFIP1A and Exhibit P2; Exhibit MFIP2A. In the first interview, K said the first occasion of touching occurred when she was “quite young”[2], maybe around eight or nine, as she was “pretty sure it was before or just when [her] sister was born”[3]. She said the appellant told her to sit down on his bed and watch a movie. The appellant put his hands in her pants and told her to stay there which she did as she didn’t know what else to do. She said he put his finger “right in the middle”[4] of her vagina and described that it “hurt”[5] and was “pretty uncomfortable”[6]. K said the appellant pulled down his pants and exposed his penis.[7] K stated that she bit him and had to use all her strength to get away.[8][2] Exhibit MFIP1A line 110.[3] Exhibit MFIP1A lines 130 and 132.[4] Exhibit MFIP1A line 136.[5] Exhibit MFIP1A line 144.[6] Exhibit MFIP1A line 142.[7] Exhibit MFIP1A lines 120, 146 and 148.[8] Exhibit MFIP1A line 154. K said that the touching occurred on numerous occasions. She said the appellant “pulled his pants down more than three times” and on one occasion forced her to take her pants off.[9] There were also times when her grandmother walked into the room but they had a blanket over them so she didn’t see the touching.[10][9] Exhibit MFIP1A line 162.[10] Exhibit MFIP1A lines 166-170. In the first interview, K also described the last occasion when touching occurred. She stated that she had been in the loungeroom when the appellant asked her into his room to watch television. He then put his hands inside her pants. K stated that he “touched the area”, meaning her vagina, “right in the middle”. She said that she slapped him and told him to “get off” but he didn’t listen. At one point, K’s grandmother walked in, causing the appellant to stop momentarily, before resuming the touching after the grandmother left. K said she then hurt him and threatened to tell someone, at which point the appellant stopped and K left the room, returning to watch Foxtel with her sister.[11] [11] Exhibit MFIP1A lines 41-108.Complaint evidence In the interviews, K referred to the complaints made to her mother and then to her grandmother. In her first interview, she said that on an occasion when she and her mother were watching a television program that dealt with issues of sexual abuse, she told her mother the reason she doesn’t like the appellant is “because he does it to me” and “he’s touching me in places and it felt really uncomfortable cos I don’t, it hurt”[12].[12] Exhibit MFIP1A line 311.

Evidence

Evidence Before The Court

Complaint evidence is governed by s 34M of the Evidence Act 1929 (SA) (‘the Act’) which relevantly provides:34M—Evidence relating to complaint in sexual cases(1)…(2)…(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—· when the complaint was made and to whom;· the content of the complaint;· how the complaint was solicited;· why the complaint was made to a particular person at a particular time;· why the alleged victim did not make the complaint at an earlier time.(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a)it is admitted—(i)to inform the jury as to how the allegation first came to light; and(ii)as evidence of the degree of consistency of conduct of the alleged victim; and(b)it is not admitted as evidence of the truth of what was alleged; and(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).(6)…(Emphasis added) Section 34M(4)(a)(ii) of the Act requires a judge to direct the jury on the degree of consistency of conduct of the alleged victim. Mr Mead SC, counsel for the appellant, correctly noted that the primary judge, in his direction, did not use the precise words contained in the section; he did not use the expression “degree of”. Mr Mead SC, contended that the absence of the words “degree of” in the primary judge’s directions is significant. What is required, he submitted, is that the jury are made aware that they are to engage in an evaluative process. That is, it’s not just a matter of demonstrating consistency, the direction must indicate that there may be degrees of consistency in the sense that some complaints might be very consistent, others less so. Mr Mead SC accepted that s 34M(5) of the Act makes plain that a particular form of words is not required when directing the jury on matters set out in s 34M(4) of the Act. However, Mr Mead SC contended that the direction to the jury had to indicate the evaluative process. To support his argument, Mr Mead SC drew attention to the legislative amendment to s 34M of the Act which added the phrase “degree of” to the wording of s 34M(4)(a)(ii) of the Act. This, he submitted, indicated that Parliament intended the direction on complaint evidence to emphasise the need for the jury to undertake an evaluative process. It is necessary to consider the appellant’s submissions in the context of what the primary judge actually said. In summing up to the jury, the primary judge said the following in relation to the complaint evidence:[44]It is important, ladies and gentlemen, that you understand how you may and may not use that evidence of [K’s] complaints to her mother and grandmother. The evidence of those complaints is before you for a number of reasons.[45]First, the evidence is before you to inform you how [K’s] allegation first came to light. It gives you a more complete picture of [K’s] account of what she says happened between her and the accused.[46]Secondly, the evidence of what [K] said when she complained to her mother and grandmother is before you so that you may judge whether [K’s] making her complaints demonstrates consistency of conduct on [K’s] part. Do the circumstances of her complaining to her mother and grandmother appear to you to be consistent with the occurrence of the sexual conduct which she says occurred between her and the accused?[47]Thirdly, the evidence of [K’s] initial complaint to her mother and her brief elaboration of it shortly afterwards to her grandmother is not before you to demonstrate the truth of what [K] said to them. You must have regard to what you heard in [K’s] interviews with the police and her evidence in court for that purpose but the evidence of what [K] said to her mother and her grandmother is before you for the purpose I have just mentioned; namely, to demonstrate consistency of conduct on [K’s] part.[48]It will, of course, be for you to determine the significance, if any, of the evidence you have heard about [K’s] complaints.[49]Ladies and gentlemen, there may be many reasons why [K] delayed in making a complaint to anybody but you must bear in mind that her delay in making her complaint does not necessarily mean that [K] has made false allegations. We do not know why she chose to complain at the time she did although, as I reminded you, her mother’s use of the word ‘touch’ in the context of the television program seems to have triggered the complaint but that, ladies and gentlemen, is a matter for you.(Emphasis added)

Decision

Reasons for decision

LOVELL J (dissent)
I would allow permission to appeal on Ground 1 but I would dismiss the appeal. Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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