Heng v The King

Case [2025] SASCA 57

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HENG v THE KING

[2025] SASCA 57

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Stanley)

29 May 2025

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

Appeal against conviction.

Following a trial by judge alone, the appellant was convicted of two counts of communicating with the intention of procuring a child for sexual activity contrary to section 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA).

The complainant was 14 years of age at the time of the offending. The prosecution case was that the appellant engaged the complainant in sexualised conversation whilst playing a game of basketball at her parents’ house with the intention of procuring her for sexual activity.

The appellant’s grounds relate to the treatment of the permissible and impermissible uses of the discreditable conduct evidence (Grounds 1, 2 and 5), the evidence of the complaint (Ground 6) and the evidence of the complainant’s behaviour after the offending (Ground 7).

Held, by the Court, granting permission to appeal, but dismissing the appeal:

1.Much of the evidence of uncharged discreditable conduct was sufficiently connected to the charged acts to comprise conduct constituting the offence and not attract the operation of s 34P of the Evidence Act 1929 (SA).

2.In any event, the judge adequately identified and explained the permissible and impermissible uses of the charged and uncharged discreditable conduct.

3.The judge adequately addressed the evidence of the complainant’s conduct immediately following the offending, including her complaint to her mother.

Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence Act 1929 (SA) ss 34M(4), 34M(4)(a)(i), 34M(4)(a)(ii), 34M(4)(b), 34M(4)(c), 34P, 34P(2)(a), 34P(2)(b), 34Q, 34R, referred to.
Adam v The Queen (1999) A Crim R 510; Adamson (a pseudonym) v The King [2024] SASCA 91; Alford v Magee (1952) 85 CLR 437; Carr (a pseudonym) v The King [2024] SASCA 69; Castle v The Queen (2016) 259 CLR 449; DL v The Queen (2018) 266 CLR 1; Fergusson v the King [2024] SASCA 63; Harriman v The Queen (1989) 167 CLR 590; HML v The Queen (2008) 235 CLR 334; Kane (a pseudonym) v The King [2024] SASCA 70; Liberato v The Queen (1985) 159 CLR 507; Miller v The King [2024] SASCA 152; O’Leary v The Queen (1946) 73 CLR 566; Perara-Cathcart v The Queen (2017) 260 CLR 595; Police v Rosales [2017] SASC 118; Rezaei v The King [2024] SASCA 150; R v Calides (1983) 34 SASR 355; R v Dhir (2019) 133 SASR 452; R v Fleming (2017) 129 SASR 27;

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AGLC
Heng v The King [2025] SASCA 57
Case
[2025] SASCA 57
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction for sexual offences, brought by the appellant, Heng, against The King. The appeal was heard by Livesey P, S Doyle and Stanley JJ. The central dispute revolved around the admissibility and treatment of certain evidence by the trial judge, particularly evidence of discreditable conduct and the complainant's subsequent actions.

The legal issues before the appellate court included whether the trial judge had adequately directed the jury regarding the use of evidence of discreditable conduct, specifically concerning the prohibition against "bad person" reasoning. The court was also required to determine if the trial judge had erred in his treatment of the complainant's conduct following the alleged offences, including her complaint to her mother, and whether any such errors amounted to a miscarriage of justice.

The court reasoned that the trial judge had adequately identified the discreditable conduct, its relevance, and its permissible and impermissible uses. It was noted that the judge had warned himself against "bad person" reasoning and had used the evidence of discreditable conduct in a manner consistent with permissible contextual uses, such as demonstrating a credible escalation of behaviours and highlighting the brazenness of the appellant's actions. The court also considered whether certain touching during a basketball game could be characterised as discreditable conduct, concluding that in the context of the age difference and the nature of the interactions, it could be. Furthermore, the court doubted whether much of the conduct relied upon as uncharged discreditable conduct could be meaningfully separated from the charged conduct to attract the operation of s 34P of the Evidence Act, referencing the reasoning in *Police v Rosales* where prior conduct was considered part of the *res gestae* of the charged offence.

The appeal was dismissed. The court found no inadequacy in the judge's directions or treatment of the evidence of discreditable conduct, nor any error of law or miscarriage of justice established in relation to the grounds concerning the complainant's conduct after the alleged offending.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Having rejected the complaint of inadequacy in the judge’s directions by reason of a failure to comply with s 34R of the Evidence Act, we also reject the balance of the appellant’s contentions in relation to the judge’s treatment of the evidence of discreditable conduct. For the reasons given, we consider that his Honour adequately identified this evidence, its relevance and its permissible and impermissible uses. The judge’s use of the evidence of discreditable conduct In summarising the prosecutor’s address, his Honour mentioned the prosecutor’s use of the evidence of discreditable conduct as supportive of the appellant ‘opportunistically and inappropriately being affectionate’ towards the complainant, with the intention of making her amenable to sexual activity.[41] [41] Reasons at [61]. Then, in setting out what we have described as his operative reasoning, the judge indicated his use of this evidence in a manner consistent with this permissible use. In the context of describing the complainant as an impressive witness, whom he found to be credible and reliable, his Honour summarised the discreditable conduct in connection with both counts, describing it as involving a ‘credible escalation of behaviours’, and hence in a way that neatly encapsulated the contextual relevance we described earlier.[42] [42] Reasons at [105]-[106]. In addition to this, when addressing the defence submission that relied upon the brazenness of the alleged suggestions by the appellant to the complainant that they have sex, the judge noted the equivalent brazenness of the appellant’s (undisputed) conduct in offering the complainant alcohol.[43][43] Reasons at [114]. Having identified and relied upon these permissible contextual uses of the evidence of discreditable conduct, the judge’s reasons provide no indication of any impermissible use of that evidence. Having earlier warned himself against bad person reasoning, there is no reason to think that there was any risk the judge might have slipped into such reasoning.Conclusion We dismiss grounds 1, 2 and 5. No inadequacy has been established in the judge’s directions in relation to, or treatment of, the evidence of discreditable conduct. No error of law or miscarriage of justice has been established.The complainant’s complaint and post offence conduct: grounds 6 and 7 In Grounds 6 and 7 the appellant challenges the judge’s treatment of the evidence of the complainant’s conduct after the alleged offending, including her complaint to her mother. In order to address these challenges it is first necessary to outline the judge’s treatment of these issues. When addressing the complainant’s evidence and the CCTV footage, the judge explained that, after leaving the house following their interaction in the complainant’s bedroom, the appellant and complainant returned to the basketball game for close to ten minutes. The complainant then went inside the house and did not emerge again. At some point in the 40 minutes which followed her returning inside, the complainant told her mother about the appellant’s behaviour. Her father was then told, and when he confronted the appellant, the appellant left the premises.[44][44] Reasons at [37].

Decision

Reasons for decision

The appellant explained that after he had gone to the toilet he noticed a light had been turned on in a room across the hallway. When he went to have a look in that room out of curiosity, he ended up at the door to the complainant’s bedroom. He stood at the door, but did not go inside her room, and merely commented to her about the neatness of her room. They both returned to the basketball game.The trial judge’s reasons for judgment After summarising the background and the parties’ cases in terms similar to the above, the judge provided a relatively detailed summary of the evidence, and the prosecution and defence addresses. The judge mentioned the admissibility of the charged and uncharged acts:Cross admissibility[85]It is not disputed that there is cross admissibility between the two counts. It is in my view permissible to reason that the allegations in one count make the other less unlikely. The allegations in respect of count 1 make it less improbable that the allegation in count 2 is isolated and has happened out of the blue. Likewise, vice versa. Each is brazen, if in slightly different ways. The probative weight of each outweighs the impermissible ‘bad person’ reasoning. The two can be kept sufficiently separate and distinct. The requirements of section 39P[2] of the Evidence Act have been met.[2] In context, this was plainly intended to be a reference to s 34P of the Evidence Act.Uncharged acts[86]It is not entirely clear what acts alleged to have been committed by the accused attract the description of uncharged discreditable conduct but I identify the following:-· The offer of alcohol· Questions about the complainant’s boyfriend and the whereabouts of the bedroom· Entering the complainant’s bedroom and locking the door· Touching the complainant while playing basketball[87]I have borne in mind the requirements of s 34P in relation to these allegations. I find that they meet the requirements of the section. The judge next considered the submission that the complainant might have had a motive to lie or exaggerate because she felt uncomfortable in the accused’s company.[3][3] Reasons at [88]. His Honour then turned to the topic of the initial complaint by the complainant to her mother.[4] Having earlier addressed the content of that evidence (see below), he noted that it was only admissible for the purposes set out in s 34M of the Evidence Act, and summarised the effect of s 34M(4).[4] Reasons at [89]-[92]. The judge also addressed some issues which had arisen in relation to prior inconsistent statements[5] and good character.[6][5] Reasons at [93]-[94].[6] Reasons at [95]-[101]. The judge commenced the operative section of his reasons by addressing the elements of the charges. He noted that each offence required both a communication with the complainant, and an intention to make her amenable to sexual activity. He reasoned that if the complainant’s evidence were accepted beyond reasonable doubt, then the elements of both charges would have been proved.[7] [7] Reasons at [102]-[104].

Ratio Decidendi

Legal Principle Established

As to paragraph (iv), the touching referred to in the evidence occurred while playing basketball and was largely connected with, and an ordinary incident of, this game. Certainly the high-fives and fist-bumps, and perhaps also the celebratory hugs, might be characterised in this way. Touching the complainant on the back, particularly insofar as it was to prompt her that it was her turn to shoot, might also be characterised in this way. The touching was not so obvious or out-of-place as to have attracted the attention of others present at the time. However, the issue is whether the touching was discreditable in a context where it was by a 37 year old man who barely knew the 14 year old girl he was touching, and where it was said to have occurred with an unnecessary frequency, and to have been accompanied by periods of the appellant standing close to the complainant and engaging in increasingly sexualised conversations. Given this context, we consider it appropriate to proceed on the basis that the touching also had a discreditable aspect to it.Did the discreditable conduct attract the operation of s 34P? Even accepting, as the judge did, that each of paragraphs (i) to (iv) included at least some discreditable conduct, it is significant that s 34P of the Evidence Act only applies to evidence tending to suggest that a defendant has engaged in discreditable conduct ‘other than conduct constituting the offence’. In our view, it is doubtful whether much of the conduct relied upon as uncharged discreditable conduct can be meaningfully separated from the charged conduct so as to attract the operation of s 34P of the Evidence Act, and the consequential obligation to give directions under s 34R of that Act. The reasons of Peek J in Police v Rosales[26] contain an instructive consideration of this issue. The appellant in that case was charged with the indecent assault of a female workmate on the particularised basis that, on an occasion at their place of employment, he ‘grabbed [her] from behind … around her shoulders and slid his arms down and then caressed her breasts with his hands and said ‘they are firm’.’[26] Police v Rosales [2017] SASC 118. The complainant’s evidence in support of this charge included reference to the appellant, in the moments leading up to the charged act: entering a kitchenette where he and the complainant were alone and engaging her in conversation; demonstrating fascination with her hair, including by encouraging her to let down her hair and then stroking her hair; taking the complainant’s face in his hands and planting kisses (described as ‘pecks’) on her cheeks and forehead; and attempting to kiss the complainant on her lips. This evidence was led without objection at trial. However, on appeal the appellant argued that it should have been treated separately (or ‘hived off’) from the particulars of the charge itself and viewed as ‘discreditable conduct’ under s 34P of the Evidence Act, thereby attracting the obligation to give directions under s 34R of that Act. In rejecting this contention, Peek J reasoned:[27]… I consider that the “hived off evidence” is simply part and parcel of the relevant evidence led to directly prove the charge before the Court. The effect of the provision by the prosecution of the further particulars was to confirm that the prosecution undertook to prove the matters stated therein, but that does not affect the relevance or admissibility of the evidence of the immediately prior conduct by the appellant; the fundamental distinction between “particulars” and the evidence to be led to establish those particulars should not be forgotten.… [The complainant’s] evidence was that she wanted to show the appellant that she was “not interested” and it would seem that if the appellant had done nothing further, no charge would have eventuated. Be that as it may, on the evidence of [the complainant], the further particularised acts and words by the appellant did occur. To have led in evidence just those further acts and words, but not the appellant’s immediately prior acts and words upon entering the kitchenette, would have been artificial in the extreme. Wrenched from their immediate context, the evidence of the later acts and words taken alone would have been disjointed, and misleading. In that sense, the immediately preceding acts and words were in fact part of the res gestae, imprecise and overworked as that label may be on some other occasions.[27] Police v Rosales [2017] SASC 118 at [22]-[24] (Peek J).