On appeal from the Supreme Court of South Australia
Representation
M E Shaw QC with B J Doyle for the appellant (instructed by Caldicott Lawyers)
I D Press SC with B Lodge for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Johnson v The Queen
Criminal law − Appeal against convictions − Where appellant convicted of five counts of sexual offending against single complainant being his sister − Where counts joined − Where s 34P of Evidence Act 1929 (SA) provided for admission of discreditable conduct evidence for permissible use − Where applications to have counts one and two tried separately and to prevent Crown from leading evidence of discreditable conduct against complainant dismissed − Where Crown relied upon evidence of appellant's other alleged sexual misconduct to rebut presumption of doli incapax and to show relationship between appellant and complainant − Where verdicts on counts one and three quashed on appeal − Whether evidence of appellant's other alleged sexual misconduct admissible on trial of each remaining count − Whether joinder occasioned miscarriage of justice.
Evidence − Criminal trial − Sexual offences − Propensity evidence − Admissibility − Where Crown relied on uncharged acts as relationship or context evidence − Where evidence of one uncharged act improperly admitted − Whether miscarriage of justice.
Words and phrases – "admissibility", "context evidence", "contextual use", "discreditable conduct evidence", "effluxion of time", "impermissible use", "non-propensity use", "other alleged sexual misconduct", "permissible use", "prejudicial effect", "probative value", "relationship evidence", "uncharged act".
KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ. This appeal is concerned with the admissibility of evidence under Div 3 of Pt 3 of the Evidence Act 1929 (SA) ("the Evidence Act") of the accused's sexual misconduct towards the complainant on occasions other than the occasion charged where the use of the evidence is confined to "contextual" purposes. In these reasons, the expression "the other sexual misconduct" is used to refer to evidence of sexual acts charged in counts in the Information other than the count under consideration and sexual acts for which the accused has not been charged.
An evident purpose of the introduction of Div 3 of Pt 3 into the Evidence Act[1] was to overcome uncertainty under the common law[2] as to the admissibility of evidence of the accused's discreditable conduct including other sexual misconduct where the use of the evidence is confined to "contextual" purposes[3]. Division 3 of Pt 3 provides for the admission of "discreditable conduct evidence" for permissible uses that rely on proof of the defendant's particular propensity as circumstantial evidence of a fact in issue and for permissible,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Johnson v The Queen [2018] HCA 48
Case
[2018] HCA 48
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by a convicted appellant against his convictions for five counts of sexual offending against his sister. The appellant had also faced applications to sever counts one and two for separate trials and to prevent the Crown from leading evidence of discreditable conduct against the complainant. The Crown sought to rely on evidence of the appellant's other alleged sexual misconduct to rebut the presumption of *doli incapax* and to establish the relationship between the appellant and the complainant.
The central legal issues before the High Court were whether the evidence of the appellant's other alleged sexual misconduct was admissible on the trial of each of the remaining counts, and whether the joinder of counts one and three had occasioned a miscarriage of justice. The Court also considered the application of s 34P of the *Evidence Act 1929* (SA), which governs the admission and use of discreditable conduct evidence, and whether the wrongful admission of certain evidence had led to a miscarriage of justice.
The High Court affirmed the decision of the Court of Criminal Appeal, holding that, with the exception of the earliest alleged act (the bath incident), the evidence of the appellant's other sexual misconduct was admissible on the trial of each of the remaining counts. The Court reasoned that this evidence was admissible for permissible uses, such as establishing the relationship between the appellant and the complainant, and that its probative value substantially outweighed any prejudicial effect. While acknowledging the wrongful admission of the evidence relating to the bath incident, the Court found that, given the overall course of the trial, this did not occasion a miscarriage of justice. Furthermore, the Court agreed with the Court of Criminal Appeal that the joinder of counts one or three had not resulted in a miscarriage of justice.
Consequently, the High Court dismissed the appeal.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
For the reasons to be given, with the exception of the earliest act, the bath incident, the Court of Criminal Appeal was right to hold that the whole of the evidence of the other sexual misconduct was admissible on the trial of each of the remaining counts. Given the course of the trial, the wrongful admission of the evidence of the bath incident did not occasion a miscarriage of justice. The Court of Criminal Appeal was also right to reject the contention that the joinder of count one or three occasioned a miscarriage of justice. It follows that the appeal must be dismissed.Discreditable conduct evidence Division 3 of Pt 3 of the Evidence Act governs the admission and use of evidence adduced on the trial of an offence that tends to suggest that the defendant has engaged in discreditable conduct, whether or not constituting an offence, other than the conduct constituting the offence charged ("discreditable conduct evidence")[12]. Division 3 of Pt 3 prevails over any relevant common law rule of admissibility to the extent of any inconsistency[13].[12]Evidence Act, s 34P(1).[13]Evidence Act, s 34O(1). Section 34P(1) provides that discreditable conduct evidence cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct and is inadmissible for that purpose ("impermissible use"). Subject to sub‑s (2), discreditable conduct evidence is inadmissible for any other purpose. Sub-section (2) provides:"Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if –(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue – the evidence has strong probative value having regard to the particular issue or issues arising at trial." Evidence that under Div 3 of Pt 3 is not admissible for one use must not be used in that way even if the evidence is relevant and admissible for another use[14]. In determining whether discreditable conduct evidence is admissible under sub‑s (2)(a), the judge must have regard to whether the permissible use of the evidence is, and can be kept, separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose[15]. The judge is required to identify and explain to the jury the purpose for which any discreditable conduct evidence may, and may not, be used[16]. Subject to a general dispensing power[17], a party seeking to adduce discreditable conduct evidence for a sub‑s (2)(b) use must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court[18].[14]Evidence Act, s 34Q.[15]Evidence Act, s 34P(3).[16]Evidence Act, s 34R(1).[17]Evidence Act, s 34P(5).[18]Evidence Act, s 34P(4).Pre-trial applications
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, NETTLE AND GORDON JJ