Eddy (a pseudonym) v The King

Case [2024] SASCA 115

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

EDDY (A PSEUDONYM) v THE KING

[2024] SASCA 115

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice B Doyle)

26 September 2024

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

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE -ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY

EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - SIMILAR FACT EVIDENCE

The appellant was convicted by a judge sitting alone of three counts of maintaining an unlawful sexual relationship with three children (AK-E, CK-E and BS). He was acquitted of two counts of aggravated indecent assault against a fourth child (SS).

Pursuant to s 34P(2)(b) of the Evidence Act 1929 (SA), the trial judge found the accounts of the four complainants cross-admissible to demonstrate a propensity on the part of the appellant to opportunistically and brazenly assault younger relatives notwithstanding a substantial risk of detection. The trial judge also found the evidence was cross-admissible pursuant to s 34P(2)(a) to reason that it was improbable that the complainants’ accounts were independently fabricated or imagined, or that the complainants had otherwise been mistaken.

The appellant appeals against his convictions on the sole ground that the accounts of CK-E and BS were insufficiently similar to the account of AK-E, such that the evidence was not cross-admissible having regard to the requirements of s 34P.

Held (per Curiam) dismissing the appeal:

1.The evidence of AK-E, CK-E and BS admitted for the propensity use had strong probative value in relation to proof of the offending against each complainant having regard to the particular issues arising at trial, and the probative value of the evidence outweighed any prejudicial effect it might have.

2.The probative value of the evidence of AK-E, CK-E and BS admitted for the improbability use in relation to proof of the offending against each complainant outweighed any prejudicial effect it might have.

3.The trial judge appropriately directed herself against engaging in the impermissible use reasoning identified in s 34P(1) and kept that use distinct from the propensity and improbability uses.

Criminal Law Consolidation Act 1935 (SA) ss 50, 56; Criminal Procedure Act 1921 (SA) s 158(1); Evidence Act 1929 (SA) ss 34P, 34R; Statues Amendment (Child Sexual Abuse) Act 2021 (SA) s 17, referred to.

R v C, CA [2013] SASCFC 137; R v March [2014] SASCFC 54, applied.

CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486; Collins v The Queen [2020] SASCFC 96; Dempsey (a pseudonym) v The Queen [2019] VSCA 224; DES v The Queen [2020] SASCFC 32; Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293; Douglass v The Queen (2012) 290 ALR 699; DPP v Roder (a pseudonym) (2024) 98 ALJR 644; DR v R [2011] VSCA 440; R v…

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Eddy (a pseudonym) v The King [2024] SASCA 115
Case
[2024] SASCA 115
Decision Date

CaseChat Overview and Summary

The case of Eddy (a pseudonym) v The King involved a defendant accused of multiple sexual offences against children. The appeal centred on the admissibility of evidence from four complainants, who all alleged sexual abuse by the defendant, a family member. The primary legal issue was whether the similarity in the complainants' accounts could be used to demonstrate the defendant's propensity for such offences, and if this was permissible under the Evidence Act. The court also needed to determine if the evidence could negate the possibility that the complainants had independently fabricated their accounts.

The court held that the evidence from the complainants had strong probative value and exhibited similarities that were unlikely to have arisen from independent fabrications. The court found that the evidence could be used to demonstrate the defendant's propensity for committing such offences, particularly given the opportunistic nature of the abuse. The court considered whether the probative value of the evidence outweighed the prejudicial effect, noting that appropriate directions could mitigate any risk of prejudice. The court concluded that the evidence was admissible for both the propensity use and to negate the possibility of independent fabrication, as the similarities in the accounts provided significant probative value.

The court ultimately found that the evidence of each complainant was admissible for demonstrating a particular propensity or disposition relevant to the charges. The court rejected the defendant's argument that the evidence concerning one complainant could not be used in proof of offences against another. The similarities in the accounts, when considered together, provided strong evidence of the defendant's propensity for such offences. The court found that the probative value of the evidence outweighed any prejudicial effect, particularly given the appropriate directions that could be given to the jury.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Against that background it is necessary to describe in greater detail the accounts of the four complainants of the offending against them. The evidence of AK-E AK-E gave evidence that he and the appellant had a shared interest in playing computer games. He first engaged in gaming with the appellant in a shed at the Salisbury East residence. He described sitting on the appellant’s lap whilst gaming, with the appellant shifting around, moving his lower body. Those circumstances did not form part of the charged offending. The first charged unlawful sexual act about which AK-E gave evidence occurred when he and the appellant were gaming in the appellant’s bedroom at the Salisbury East residence. AK-E said he was six or seven years old at the time. His memory was that he wanted to play a particular game (Halo 3: ODST) and the appellant said he could only do so if AK-E did something for him. The appellant got him to stand up and pull down his pants and sit back down. AK-E continued playing the game, and the appellant began touching AK-E’s penis while touching himself. After a time the appellant lent in closer and began sucking AK-E’s penis. AK-E stood up shortly thereafter and tried to pull his pants back up, and the appellant put his hand on his shoulder and guided him back to his seat. The appellant said if AK-E told anyone he would kill them. In cross-examination AK‑E was asked who else was in the home at the time of this occurrence, and he answered that he did not know. AK-E described another time in the appellant’s bedroom when he wanted to play a different game (Call of Duty Modern Warfare 2). The appellant asked him to stand up and remove his pants and sit back down. AK-E felt a sharp pain which was the appellant’s penis in his anus. He played the game for a little while before getting up and trying to leave, but sat back down when the appellant put his arm across his chest. When asked whether anyone else was at the home at that time, AK-E said that no-one was at the house as his grandparents were away on that particular weekend. He could not say where they were, he said he just knew the house was quiet. AK-E’s memory was not clear but he said he was six or seven at the time of the incident. In cross-examination he said that he thought that his grandparents had gone away just for a day. In re-examination he said his father KE was not staying at the residence on that occasion. AK-E described a further occasion involving similar conduct that occurred when the appellant had wanted to play another game, the precise name of which he could not recall. He was initially unsure if this occasion was before or after the occasion just described, but a subsequent answer suggested it was later in time. It involved a similar allegation of anal sex, AK-E getting up to leave almost immediately, and the appellant pulling his shoulder towards the seat. AK-E also described an occasion in the appellant’s bedroom when he was not actively playing a game and the appellant took AK-E’s hand and guided it towards the appellant’s penis. The appellant effectively made him hold his penis and move it in an up and down motion, before getting AK-E to come closer and suck on his penis. AK-E said that this ceased when someone was ‘at the door’ and the appellant pushed him back and pulled up his pants. In cross-examination AK- E said he did not know who was at the house at the time, he just knew that someone was.

Decision

Reasons for decision

That is to say, there are features of the accounts of each complainant that exhibit similarities that are greater than one would expect to see in the accounts of four children were they each, for reasons individual to them, to have fabricated or imagined sexual offending against them by the same person.Conclusion on admissibility and use Having reached the view that the evidence in question had ‘strong probative value’ in demonstrating a particular propensity or disposition relevant to proof of each allegation, and that the similarities between the accounts were such as to give the evidence of the complainants real probative value in negating the possibility of independent concoction by the complainants, it remains to be considered whether the use of the evidence in those ways was permissible having regard to the requirements of s 34P(2)(a), informed by the consideration in s 34P(3). A question arises whether, for the purposes of comparing the probative value of the evidence with the prejudicial effect it may have, the probative value associated with each of the two uses under consideration is to be cumulated.[90] The issue was not ventilated in this appeal. [90] See R v C, CA [2013] SASC 137 at [137] (Nicholson J). Adopting an approach which is favourable to the appellant, we will consider whether the probative value of the evidence sought to be admitted in respect of each use outweighs the prejudicial effect it may have, while recognising that the risk of prejudice (and the inquiry mandated by s 34P(3)) requires a consideration of the directions that may be given or required to be given if the evidence is admitted for multiple uses (and any difficulties that may be created if the directions relating to the different uses could lead to confusion or contradiction). The approach taken by Kourakis CJ in R v C, CA[91] to the question of prejudice illustrates that the risk of prejudice may need to be considered in the broader context of the directions that may be required in respect of other items of evidence.[92] [91] R v C, CA [2013] SASCFC 137 (Anderson J agreeing).[92] Kourakis CJ considered that the evidence of SG might, on a stand alone basis, have demonstrated a similarity with the accounts of MA and MG, such as to give it strong probative value in the case of the charges against MA and MG. He considered that although, generally speaking, the nature of the reasoning associated with similar account use is anterior to, and can therefore be kept separate from, propensity reasoning, there was a difficulty arising from the fact that, in that case, the evidence of MA and MG was admissible as demonstrating a particular propensity or disposition relevant to proof of the offending against SG. In these circumstances, a direction that the impermissible use must be avoided when using the evidence of SG in proof of the offences against MA and MG, would be of questionable efficacy: R v C, CA [2013] SASCFC 137 at [83]-[88]. The particular difficulty that was presented in that case is not applicable here,[93] but a more general concern is whether, when a trier of fact is considering engaging in both forms of reasoning, the difficulty in avoiding the simplistic and forbidden form of impermissible general propensity reasoning, or the risk of other potential sources of prejudice, is enhanced. [93] Given the conclusion provisionally reached that no differential approach should be taken as between the complainants to the question of whether the evidence of a complainant should be admitted for a particular propensity or disposition use (as distinct from an improbability of similar account use).

Ratio Decidendi

Legal Principle Established

Conversely, however, there may be cases where the complainants’ narrative descriptions bear no similarity on their face, but when considered together, reveal so strong or unusual a disposition that the evidence is cross-admissible for that reason. Consideration We turn now to consider the appellant’s submissions with respect to the two uses of the evidence relied upon by the trial judge. Probative value in demonstrating a particular propensity or disposition As has been noted, the trial judge considered the evidence of each of the four complainants was admissible on the basis that the evidence of each complainant could be used to demonstrate a propensity on the part of the appellant to sexually assault relatives even when there was a substantial risk of detection. When using the evidence for that purpose, the judge also pointed to the opportunistic nature of the offending described by each of them. The appellant contends that AK-E’s evidence of the offending against him did not support the finding of a propensity to act in an opportunistic or brazen fashion. In particular, the appellant emphasises that in the case of CK-E and BS, the appellant was alleged to have suddenly and forcibly removed them from common areas of the home by covering their mouths before taking them into a secluded area so that he could abuse them. It is submitted that this is in marked contrast with the circumstances surrounding the offending alleged against AK-E, with whom it is said the appellant had fostered a relationship through a mutual interest in video game playing over several years. The appellant emphasises that there was an element of grooming in the case of AK-E, such that the offending could not be seen as exhibiting the feature of opportunism or brazenness associated with the conduct alleged in respect of CK-E and BS. Accordingly, the appellant submits that the conduct involving AK-E did not support a particular disposition or propensity of the kind that the judge considered assisted in proof of the offending against each of the other complainants, and that the evidence of the conduct against CK-E and BS admitted to establish a disposition or propensity of that kind was not of sufficient probative value to justify its use in proof of the allegations concerning AK-E. The appellant is correct to submit that there were material differences between the accounts given by CK-E and BS, on the one hand, and the account given by AK-E, on the other. The offending against AK-E was undertaken in circumstances where there was an independent reason for AK-E’s presence in the appellant’s bedroom. In three of the four instances described by AK-E, the offending by the appellant was undertaken after AK-E had requested to play a particular video game. There was, to that extent, an element of bargaining, as the appellant submitted on appeal. But the significance of this feature of the offending against AK-E should not be overstated. The evidence suggested that the appellant had an interest in gaming. That a young boy would share that interest is not surprising. There was little in the evidence to suggest that the opportunity which the shared interest in gaming presented to the appellant to offend against AK-E was cultivated for that purpose. The shared interest in gaming presented the appellant with an opportunity to offend against AK-E in the appellant’s bedroom without the need for the appellant to take steps physically to isolate AK-E or manoeuvre him into his bedroom. But that does not mean that the offending against AK-E did not involve an element of opportunism.