McRoberts v The King

Case [2024] SASCA 92

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MCROBERTS v THE KING

[2024] SASCA 92

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)

1 August 2024

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS

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

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 - JOINDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

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

The appellant was charged with four counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) against three complainants, namely MS (count 1), SH (counts 2 and 3) and DD (count 4). The offences allegedly occurred between 26 November 1991 and 9 April 1997. At all relevant times, the appellant was a Scout Leader with Scouts South Australia (‘Scouts SA’). The appellant’s relationship with each complainant arose from his association with Scouts SA.

The appellant made an application for separate trials as between complainants. The prosecution submitted that the evidence of each complainant was cross-admissible for propensity reasoning and similarity of account reasoning. Each complainant gave an account of the appellant touching him or her on the genital area over the clothing when a prepubescent child and at a time when entrusted to his care and supervision. It was alleged at trial that similarities between the complainants’ accounts rendered the hypothesis that each complainant independently fabricated, imagined or were otherwise mistaken about the offending so improbable that the probative value of the evidence outweighed its prejudicial effect.

The trial Judge held the evidence was cross-admissible for similarity of account reasoning and refused the application for separate trials.

After a trial before a jury, the appellant was found guilty of counts 1 and 4 and not guilty of counts 2 and 3.

The grounds of appeal challenged the cross-admissibility of each complainant’s evidence on the basis of similarity of account reasoning and the trial Judge’s refusal to order separate trials; the admission of evidence of uncharged acts relating to MS and DD; and the adequacy of the trial Judge’s directions in relation to that evidence.

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

1.The trial Judge’s refusal to order separate trials did not occasion a miscarriage of justice. The evidence of each complainant was cross-admissible in proof of all charges on the basis of similarity of account reasoning.

2.The focus…

Continue reading McRoberts v The King

Sign in free to access the full text

Details
AGLC
McRoberts v The King [2024] SASCA 92
Case
[2024] SASCA 92
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against convictions for sexual offences. The appellant, McRoberts, was charged with multiple offences against different complainants. The central dispute revolved around the admissibility of evidence relating to each alleged offence in the joint trial of all charges. The appeal was heard by Kourakis CJ, Bleby and David JJ.

The legal issues before the court were whether the evidence of each complainant was admissible in relation to the charges concerning the other complainants, and consequently, whether the trial judge erred in exercising the discretion not to order separate trials. This involved an interpretation of section 102 of the Criminal Procedure Act 1921 (SA) concerning the joinder and separation of charges, and section 34P of the Evidence Act 1929 (SA) regarding the admissibility of discreditable conduct evidence.

The court reasoned that under section 102(6) of the Criminal Procedure Act, separate trials for sexual offences involving different alleged victims could only be ordered if the evidence relating to one count was not admissible in relation to the other counts. The evidence of each complainant constituted discreditable conduct evidence in respect of the charges relating to the other complainants, thus engaging section 34P of the Evidence Act. The court found that the evidence was admissible for a permissible use, specifically for similarity of account reasoning to prove the occurrence of the sexual acts, provided its probative value outweighed its prejudicial effect and it could be kept separate from impermissible propensity reasoning. The trial judge had found the evidence admissible on this basis.

The court concluded that the evidence was admissible under section 34P(2)(a) of the Evidence Act, and the trial judge's directions were adequate. Accordingly, the appeal was dismissed.

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

Section 34P relevantly provides:34P—Evidence of discreditable conduct(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a) 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(b) is inadmissible for that purpose (impermissible use); and(c) subject to subsection (2), is inadmissible for any other purpose.(2) 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 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.(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. In his reasons for ruling, the trial Judge held that the evidence was cross‑admissible for similarity of account reasoning but not for a propensity purpose. Thus, the question of cross-admissibility fell to be determined under s 34P(2)(a). In this case, the prosecution sought to rely on similarity of account reasoning to prove the occurrence of the sexual offending. While the identity of the offender was not conceded in respect of SH, the prosecution explicitly disavowed reliance on similarity of account reasoning in proof of this factual issue. By the conclusion of the trial, the issue of identity in relation to SH was only faintly pressed by defence counsel and the central issue in dispute was whether the sexual acts occurred as alleged by each complainant. Under s 34S of the Evidence Act, the exclusion of the possibility of collusion or concoction is not a pre-condition for admissibility of similarity of account evidence. In any event, there was no suggestion of any possibility of collusion or contamination between complainants. They were unknown to each other. Similarity of account reasoning The decision whether to order separate trials is discretionary and the principles in House v The King[2] apply. However, the admissibility of the evidence of discreditable conduct under s 34P(2)(a) is an evaluative question of law admitting of only one answer. The task for this Court is to evaluate whether the evidence was cross-admissible, rather than determining whether it was open for the trial Judge to find that it was. Whether or not each complainant’s evidence of the alleged offending is admissible under s 34P(2)(a) on all charges will usually, but not always, be determinative of whether the trial Judge erred in the exercise of the discretion not to order separate trials. [2] (1936) 55 CLR 499.

Decision

Reasons for decision

For those reasons, we are satisfied that the evidence was admissible under s 34P(2)(a) and the trials Judge’s directions were adequate and complied with s 34R. We reject Grounds 4 and 5. Conclusion 1. We grant permission to appeal on all grounds and dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Section 102 of the Criminal Procedure Act 1921 (SA) (‘the CPA’) governs the joinder and separation of charges on an Information. Relevantly, it provides: 102—Joinder and separation of charges(1) Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.……(5) A court may direct that—(a) charges contained in a single information be dealt with in separate proceedings; or(b) charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information).(6) Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:(a) subject to paragraph (b), those counts are to be tried together;(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim. It was common ground at trial, and on appeal, that the charges were properly joined. As the appellant was charged with multiple sexual offences against different alleged victims, pursuant to s 102(6) of the CPA, the power to order separate trials was enlivened only if the evidence relating to one count (and a particular complainant) was not admissible in relation to the other counts (and other complainants). The evidence of each complainant as to the indecent touching constituted evidence of discreditable conduct in respect of the charges relating to the other complainants. Consequently, s 34P of the Evidence Act 1929 (SA) ('the Evidence Act’) was engaged. Section 34P relevantly provides:34P—Evidence of discreditable conduct(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a) 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(b) is inadmissible for that purpose (impermissible use); and(c) subject to subsection (2), is inadmissible for any other purpose.(2) 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 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.(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.