Jeffrey Malcolm Fix v R No. SCCRM 93/72, SCCRM 93/73 Judgment No. 4057 Number of Pages 7 Criminal Law and Procedure

[1993] SASC 4057

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - evidence - cross-examination as to prior convictions - whether evidence of accused amounted to assertion of good character - whether reputation on character of alleged victim of incest necessarily arose in presentation of defence (s.18(2) Evidence Act) - on trial for incest cross-examination allowed to elicit that accused had been convicted of attempted rape of alleged victim's sister although conviction subject to appeal - wrong exercise of discretion - obligation of complying with s.2l(5) Evidence Act notwithstanding that near relative witness a child.
Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - Necessity to warn against impermissible use of incidents in criminal course of conduct other than those charged; R v Dolan (1992) 58 SASR
501 referred to - caution as to child witness to be directed to youth of witness and not to be formulated in terms which are no longer acceptable in sexual cases; Question Reserved on Acquittal (No.1 of 1993) unreported delivered 20/4/93, Lonqman v R (1989) 168 CLR 79.

HRNG ADELAIDE, 21 July 1993 #DATE 21:7:1993
Counsel for appellant:     Mrs M E Shaw
Solicitors for appellant:    Caldicott and Co
Counsel for respondent:     Mr B J Jennings QC
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal, conviction should be set aside and that there should be a new trial on the information.

JUDGE1 KING CJ The appellant was tried in the District Court on an information alleging three counts of incest and one count of procuring an act of sexual intercourse. The alleged victim was the appellant's daughter. The appellant was found guilty on all counts, and he has appealed to this court against those convictions. 2. The case for the prosecution depended upon the evidence of the alleged victim. She was born on 30 April 1977. She was aged 13 at the time of the incidents alleged in the first three counts in the information, and 14 at the time of the incident alleged in the fourth count. 3. Her evidence was that from early in 1990 the appellant engaged in a course of sexual conduct with her which included penetration of her vagina with his penis. She identified three incidents which were the subject of the first three counts in the information. 4. She also gave evidence of an incident which is the subject of the fourth count in the information, during which, according to her version, the appellant forced her to have sexual intercourse with a boy with whom she had developed an association, and with whom she said she was in love. 5. There was no corroboration of the girl's version. The appellant gave evidence denying any sexual impropriety with the girl. 6. There are a number of grounds of appeal against the convictions. It is convenient to deal, first, with the fourth ground of appeal, which was that the learned trial judge erred in permitting the prosecutor to cross-examine the accused as to his prior convictions. 7. At the conclusion of the examination in chief of the appellant, counsel for the prosecution applied to the judge for leave to cross- examine the appellant as to prior convictions. He contended that such cross-examination was warranted by s.18 of the Evidence Act on two broad bases. The first was that the conduct of the defence had been such as to involve imputations on the character of the girl, and the second was that he had asserted his own good character. 8. The suggestion that the appellant had asserted his own good character was based upon certain answers which he gave as to his occupation. That became material because of evidence which was given as to a certain phone call which took place while in the course of that occupation. 9. In describing his occupation the appellant referred to certain fund raising activities for the Animal Welfare League, and of the difficulty in such activity in times of recession. This was construed by counsel as involving an assertion of good character, and as therefore justifying cross-examination as to character. The learned judge made no reference in his ruling to this alleged basis for allowing the cross-examination and I do not think that it would be a sound basis for allowing such cross-examination. There was no express assertion of good character. Any such assertion must be implied, if it is to be found at all, from the evidence which the appellant gave as to his fundraising activities. 10. There is always a difficulty where there is no express assertion of good character, but it is claimed that it is to be found by implication in other evidence which an accused person has given, in determining whether the accused has deprived himself of the protection of the section. 11. Where an accused person, by his description of himself or his activities, is, by clear implication, conveying to the jury that his character is such that he would not be likely to commit the offences charged against him, there is no doubt that the accused person loses the protection of the section. 12. I think that this was very much a borderline case. The appellant got very close to impliedly asserting his good character but I have reached the conclusion that he did not overstep the line. 13. The argument that the conduct of the appellant's defence involved imputations upon the character of the girl arose in two ways. The girl was cross-examined by counsel for the appellant as to certain activities by way of stealing in which she had been involved. She admitted to stealing on a number of occasions. The learned trial judge considered that this cross-examination was an imputation upon her character for the purpose of s.18. 14. S.18 sub-s.2 provides that: "A defendant forfeits the protection of the section if the imputations are not such as would necessarily arise from a proper presentation of the defence." 15. The question, therefore, arises as to whether the cross-examination of the girl as to her stealing activities necessarily arose from a proper presentation of the defence. 16. The girl had claimed in her evidence that she was threatened by the appellant that she would be sent to a girls' home. The cross-examination was designed to elicit from her that the threat that she might have to go to a girls' home did not relate to any sexual conduct but was made in response to her stealing activities, and in an effort to deter her from that conduct. 17. Moreover, it had, in my opinion, a bearing upon the issue in the case as to the motivation of the girl in making the allegations against the appellant. She admitted that, as a result of her stealing activities, she had been, as she described it, grounded; in other words, that disciplinary action had been taken against her on a number of occasions. 18. The general argument for the defence as to motivation was that the girl had been motivated to make these allegations by, among other things, her resentment against the appellant for the disciplinary action. 19. I think that in these circumstances the references to the girl's stealing activities were unavoidable and did arise necessarily from a proper presentation of the defence. The defence would have been unreasonably hampered if it were unable to explore fully the issues surrounding the disciplinary action against the girl, which was said to have been the motivation for the false allegations. 20. In my opinion, the learned trial judge was wrong in holding that the defence in that respect had involved imputations again the character of the girl which did not necessarily arise from a proper presentation of the defence. 21. His Honour based his ruling, in addition, upon some further evidence which was given by the appellant. During the course of his examination in chief he volunteered a statement which was not responsive to the question which his counsel had asked him. He made the following statement:
    "I wouldn't force Jodie to have sex with anybody. Me
    and my wife caught her having sex with other people in the
    lounge room. My wife kicked them out of the door - 18, 19,
    20 year olds, and it caused big problems with me and my
    wife. She partly sneaked down the passage -" 22. He was then cut off by a question by his counsel. S.34(i) of the Evidence Act precludes the giving of evidence relating to the sexual activities of a witness without the leave of the judge. Leave to adduce such evidence was not given in this case. It was, therefore, not permissible as part of the defence to give evidence of other sexual activities on the part of the girl. 23. It seems to me to be quite clear that the statement which the appellant made did involve an imputation upon the character of the girl, and in view of the fact that it was not permissible by virtue of s.34(i), it seems to me that it cannot be said that it arose from a proper presentation of the defence. I think the learned trial judge was, therefore, correct in ruling that that condition of the section had been complied with. 24. That being so, it was for the judge to exercise the general discretion of a trial judge in a criminal case as to the reception of evidence which is technically admissible, but which might have the effect of prejudicing the fair trial of the charges before the court. It must be said that in making his ruling his Honour gave no indication that he appreciated that such a discretion had to be exercised. The language in which his ruling was expressed conveys the strong sense that it was his Honour's view that if the conditions in s.18 of the Evidence Act were complied with, it would follow that the cross-examination was permissible. 25. The learned judge gave leave to counsel for the prosecution to cross-examine the appellant as to his prior convictions, and that cross-examination elicited admissions by the appellant that he had been convicted on a number of occasions. 26. It is unnecessary to refer to all the matters that were elicited by that cross-examination. The critical answer which was elicited was that the appellant had been convicted recently by a jury of a crime of attempted rape of the present alleged victim's sister. This answer was, of course, highly prejudicial to the appellant. At the time the answer was given at the trial the other conviction was subject to an appeal which had been lodged but not determined. As a matter of history it must be recounted that in due course, and after the conclusion of this trial, that appeal was upheld and the conviction set aside. I have reached a clear conclusion that a proper exercise of the discretion which vested in the trial judge would have required the exclusion at least of the question relating to that conviction. It may have required the exclusion of questions relating to the convictions, but it is unnecessary to express an opinion as to that. The disclosure to the jury that the appellant had been convicted of a sexual crime against another member of his family could only have had a devastating effect upon the defence and made a fair trial of the accused on the issues raised by these charges virtually impossible. 27. The learned judge was required, in exercising the discretion which vested in him, to balance the gravely prejudicial effect of the disclosure of this prior conviction against any legitimate bearing which the disclosure might be thought to have upon the credibility of the appellant as a witness. I think that that exercise could have only one result. It would be obvious that the disclosure would be so prejudicial to the fair trial of the action that any marginal bearing that it might have upon the credibility of the appellant as a witness would fade into insignificance. To my mind, therefore, the cross-examination as to that conviction ought not to have been allowed. I would have said that even if it had not been subject to appeal at the time of trial. But the fact that a conviction is the subject of a pending appeal is, itself, an overwhelming reason why a Crown prosecutor should not cross-examine upon it, and the judge should not permit such cross-examination. In my opinion therefore, ground four of the Grounds of Appeal is made out and that must inevitably lead to the setting aside of this conviction. 28. Before turning to the argument of Mrs Shaw, who appeared for the appellant, that the verdict was unsafe and unsatisfactory, and that this court should substitute for the convictions acquittals instead of ordering a new trial, I mention briefly certain other grounds of appeal which did not have to be fully explored on the hearing of this appeal in view of the course which the appeal has taken. 29. The alleged victim, as I have said, is the daughter of the appellant. The learned judge was therefore required by s.21 of the Evidence Act, sub-s.5, to satisfy himself that she was aware of her right to apply for an exemption, under that section, from giving evidence. He did not do that. It is unnecessary in this case to consider the legal effect of that failure. But the opportunity ought to be taken to remind trial judges of the importance of complying with that sub-section. There are undoubted difficulties in complying with it in the case of child witnesses, and particularly in the case of child witnesses of tender years. Nevertheless, some proper attempt must always be made to comply with it. The manner of compliance will depend upon the circumstances of the particular case and the age and degree of understanding of the particular witness. Much must, no doubt, be left to the good sense and discretion of the trial judge as to the manner of compliance with the sub-section. Nevertheless, a total failure to comply with it cannot be condoned. 30. I note also in this case that despite the evidence given by the alleged victim of a course of conduct involving sexual incidents other than those charged, his Honour did not direct the jury as to the use which they might legitimately make of evidence of incidents other than those charged, nor as to the impermissible use of those incidents. 31. It is not necessary to say any more on this subject other than to remind trial judges of the necessity of giving such a direction in such cases, and attention is drawn to the decision of this court in R v Dolan (1992) 58 SASR
501. 32. There is also ground for concern with respect to the direction which was given by the learned trial judge in relation to the youth of the witness. There was a requirement in this case that the judge give an appropriate caution as to the evidence of a child witness. That caution was required to be directed to the age of the child and to the possible infirmities of the evidence of child witnesses. It is important for trial judges to bear in mind the purposes of such a caution and to take care, in sexual cases, not to formulate the caution in terms which are no longer acceptable; Question of Law Reserved on Acquittal Pursuant to Section 351(1A) Criminal Law ConsolidationAct (No.1 of 1993) (unreported, delivered 20/4/93); Longman v R (1989) 168 CLR
79. 33. It is unnecessary to explore the question of the property and adequacy of the direction on this topic in this particular summing up in view of the course which this appeal has taken. It is sufficient to say that I would not wish this court to be taken as approving the directions which were given in the present case on this topic. 34. Mrs Shaw argued that there were infirmities in the evidence of the alleged victim of such a nature and degree as to make the convictions unsafe and unsatisfactory and to lead to the conclusion that there should be an acquittal. I am unable to agree with that submission. As that view would result in a new trial, I think it would be unwise for this court to discuss in detail the criticisms of the evidence of the girl as these will, of course, have to be assessed by a jury in the new trial. 35. It is sufficient to say that this court, as is its duty, has made an independent assessment of the evidence in the case, including the evidence of the alleged victim. I recognise the force of some of the criticisms which have been made by Mrs Shaw and they are undoubtedly matters which will have to be considered by the jury at a new trial. I have reached the conclusion however, that it is not possible to say that the jury, keeping in mind the advantage which it had in seeing and hearing the alleged victim and the accused, could not, as a reasonable jury, have properly reached a conclusion beyond reasonable doubt of the guilt of the appellant. The force of many of the criticisms made by Mrs Shaw would depend very much upon the jury's assessment of the demeanour and degree of maturity of the girl witness and of her personality and character. I think that an assessment of her evidence based upon the written transcript leads to the conclusion that a jury, taking full advantage of its opportunity of hearing and seeing the witnesses, could reasonably have concluded that the uncorroborated evidence of this girl was so convincing and the denials of the accused so unconvincing as to justify a conclusion of guilt beyond reasonable doubt. 36. Whether that is the proper conclusion which a jury, having seen the evidence, would arrive at, I cannot say. It would be wrong to attach importance to the conclusion which this jury arrived in a case in which such highly prejudicial material got before the jury, but I am unable to say on the material before us that it would be unreasonable for a jury at a future trial on properly admissible evidence to reach a conclusion of guilt beyond reasonable doubt. 37. In my opinion therefore, the ground that the verdict is unsafe and unsatisfactory fails. 38. I am of the opinion, for the reasons which I have given, that the appeal should be allowed, that the conviction should be set aside and that there should be a new trial on the information.

JUDGE2 DUGGAN J I agree with the order proposed by the learned Chief Justice, and I also agree with the reasons he has given.

JUDGE3 DEBELLE J I also agree with the reasons of the Chief Justice and the order he proposes.