MDM v The Queen

Case [2020] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

MDM v THE QUEEN

[2020] SASCFC 80

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)

3 September 2020

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

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

Appeal against conviction and sentence.

The appellant, MDM, was charged with two counts of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA), as to two complainants, KMA and RAM (Counts 1 and 3), and one count of indecent assault contrary to s 56 of the CLCA (Count 2). The alleged offending occurred between 1990 and 1999 when both KMA and RAM were persons under the age of 17 years.

On 19 November 2019, after a trial by Judge alone in the District Court, MDM was acquitted of Count 2 and convicted on Counts 1 and 3. He now appeals on the following grounds:

1.  The Judge erred in using the complainants’ evidence for propensity purposes when the evidence was not tendered for that purpose, and in so doing failed to afford the appellant procedural fairness.

2.  The Judge erred in finding the evidence of each complainant cross-admissible against the other (Counts 1 and 3).

3.  The Judge erred in finding that there was a “relationship” between the defendant and the complainant, and the Judge misdirected himself as to what was required to establish a relationship, and as to what was required to establish that, or alternatively failed to find that, the defendant maintained such a relationship.

4.  The Judge erred in law by failing to give reasons for verdict that adequately explained the process of reasoning to guilt and, in the alternative, the reasoning was inadequate so as to give rise to a miscarriage of justice.

Held per Kourakis CJ (Kelly J agreeing) granting permission to appeal, allowing the appeal and ordering a re-trial:

1.  The trial Judge denied the appellant an opportunity to make submissions against the admission, and on the weight, of the testimony of KMA and RAM as to the offending against each of them as propensity evidence in the prosecution case against the other, after the prosecution had eschewed reliance on any such use.

2. It is not strictly necessary to decide whether the evidence of each of the complainants was admissible under s 34P(2)(b) of the Evidence Act 1929 (SA).

3.  To be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence does not necessarily require a greater degree of similarity than is required for propensity evidence.

4.  There is no doubt that the appellant maintained a de facto familial, and a residential, relationship with KMA and RAM.

5.  The…

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MDM v The Queen [2020] SASCFC 80
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[2020] SASCFC 80
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CaseChat Overview and Summary

The appellant, MDM, appealed his conviction for sexual offences against two complainants, KMA and RAM, in the Supreme Court of South Australia. The appeal concerned the admissibility of tendency evidence and the proper application of provisions relating to the joinder and severance of charges involving multiple complainants in sexual offence proceedings.

The legal issues before the court included whether the trial judge erred in admitting tendency evidence under section 97A of the Evidence Act 1929 (SA), which governs the admissibility of tendency evidence in proceedings involving child sexual offences. The court also considered the application of section 102(6) of the Criminal Procedure Act 1921 (SA), which dictates that counts involving different alleged victims in sexual offence proceedings should generally be tried separately unless the evidence relating to one count is admissible in relation to the other. The appellant also raised grounds concerning procedural fairness and the adequacy of the trial judge's reasons.

The court analysed the principles established in a trilogy of High Court cases (Hughes, Bauer, and McPhillamy) concerning the admissibility and probative value of tendency evidence in sexual offence cases. It reiterated that for tendency evidence to have significant probative value, it must not only support the tendency alleged but also make the facts constituting the charged offence more likely. The court emphasised the importance of considering the extent to which the evidence supports the tendency and the extent to which the tendency makes the offence more probable, particularly when the issue is whether the offence was committed rather than the identity of the offender. The court also confirmed that the general rule under section 102(6) of the Criminal Procedure Act 1921 (SA) is that charges involving different complainants should not be tried together if the evidence on one count is not admissible on another, a principle that remains applicable even with recent legislative changes.

The court allowed the appeal, quashed the convictions, and ordered a new trial. This outcome was primarily due to the misdirection regarding the admissibility and use of tendency evidence, and the failure to properly apply the severance provisions of the Criminal Procedure Act 1921 (SA).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Since the trial was by Judge alone, there is a deal of overlap and intertwining as between Grounds 1, 2 and 4 but it is not necessary to deal with all of the alternative strands put forward by the appellant. This judgment is structured as follows: Part A: Background and overview of the evidencePart B: Division 3 of the Evidence Act 1929 (SA)Part C: A trilogy of High Court cases (Hughes, Bauer and McPhillamy)Part D: Ground 1 of appeal – Procedural fairnessPart E: Ground 2 of appeal – Cross-admissibility of evidencePart F: Ground 4 of appeal – Failure to give adequate reasonsPart G: Ground 3 of appeal – “Maintaining a relationship”PART A: BACKGROUND AND OVERVIEW OF THE EVIDENCE MDM was born on 18 April 1964 and is a son of Mr HHM (HHM) who has had several children from more than one marriage. He is related to each complainant in the ways that appear below. Count 1 relates to the first complainant (KMA) who was born on 16 October 1982 and was the daughter of Ms JDM (JDM). JDM later commenced a relationship with MDM and they commenced living together in 1983; they were married on 6 December 1986. Later, they had a male child (DM). They lived in a house in Kilburn (the Kilburn property) until purchasing a house in Pinery (the Pinery property) on 12 July 1990. The offending in Count 1 is alleged to have occurred between 1 June 1990 and 30 November 1992 at the Pinery property. Evidence was given that KMA complained to JDM about that alleged conduct in April 1992. In November 1992, JDM and KMA left the Pinery property. MDM and JDM separated, and later divorced, when KMA was 13 or 14 years old. In April 1994, JDM, KMA and DM moved to Tasmania. Count 2 (of which MDM was acquitted) also concerned KMA. Sometime after KMA complained to JDM in April 1992, MDM moved from the Pinery property to live with Mr IR (IR) who resided in Mansfield Park, and when KMA was about 12 years old she visited IR and MDM there. In Count 2, it is alleged that during that visit MDM put his hand down the back of KMA’s pants and underwear and touched her on the bottom. Dealing very briefly with Count 2, there were inconsistencies between the accounts of KMA and IR, including whether KMA was standing or sitting on MDM’s lap at the time. Indeed, IR stated that he saw nothing like KMA alleged occurred but only that KMA started to panic and run around, telling MDM to get away from her, and request to be taken to her grandmother’s house. During the car ride, KMA told IR that MDM touched her between her legs. It is unclear exactly what she meant, but IR interpreted this as meaning MDM touched KMA on her vagina. The trial Judge accepted IR to be a witness of truth, and that on the evidence before him there was doubt that the act charged occurred. His Honour was not satisfied that there was an assault committed as charged in Count 2 and MDM was therefore acquitted of Count 2. Count 3 concerns the second complainant (RAM) who was born on 15 December 1987 and is the daughter of HHM and Ms DB (DB). (Since MDM is a son of HHM, it follows that RAM and MDM are half-siblings). The family relocated from Victoria to South Australia when RAM was about five years old. When RAM was seven years old, HHM and DB separated. Later, MDM and DB commenced a relationship and MDM moved in with DB and her daughter RAM at DB’s house in Enfield (the Enfield property). The offending in Count 3 is alleged to have occurred between 15 December 1996 and 9 August 1999 at the Enfield property. Evidence was given that in 1999 RAM complained about that alleged conduct to DB and that DB evicted MDM from the property. DB and RAM then relocated to a house in Blair Athol (the Blair Athol property). The relationship between MDM and DB later resumed but it ended in final separation when RAM was about 15 years old. In 2007, MDM married his current wife Ms RMM (RMM); KMA attended the wedding.

Evidence

Evidence Before The Court

Section 97A was recently inserted by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) (the Tendency and Coincidence Amendment Act), which was assented to on 10 June 2020 and commenced on 1 July 2020. Section 97A provides:97AAdmissibility of tendency evidence in proceedings involving child sexual offences(1)This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2)—(a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest),(b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally.(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.(5)The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account—(a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act),(b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred,(c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act,(d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act,(e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act,(f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features,(g) the level of generality of the tendency to which the tendency evidence relates.(6)In this section—child means a person under 18 years of age.child sexual offence means each of the following offences (however described and regardless of when it occurred)—(a) an offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence, or(b) an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence, or(c) an offence against, or arising under, a law of the Commonwealth, another State, a Territory or a foreign country that, if committed in this State, would have been an offence of a kind referred to in paragraph (a) or (b),but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.

Decision

Reasons for decision

The test for admissibility of tendency evidence under s 97(1)(b) of the Evidence Act 1995 (NSW) was whether the evidence “could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent”.[32] As noted elsewhere herein, this is a significantly lower bar to admissibility than that in Division 3 of the Act. However, as to the strength of the evidence in the case of Hughes itself, the majority observed:[33][41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[32] Ibid 348 [16]. See IMM v The Queen (2016) 257 CLR 300, 314 [46] (French CJ, Kiefel, Bell and Keane JJ).[33] (2017) 263 CLR 338, 356-357. See further at pages 371-372 [90]-[93]. This assessment as to probative value was later applied and endorsed by the High Court in McPhillamy (2018) 92 ALJR 1045, 1051 [32].The decision of the High Court in McPhillamy v The Queen The recent decision of the High Court in McPhillamy (the third of the trilogy) confirms that the facts in Hughes had been very important. In McPhillamy the facts were as follows. The appellant was tried in the District Court of New South Wales on six counts of sexual offences against A alleged to have occurred on two separate occasions between 1 November 1995 and 31 March 1996 in the public toilets of the St Michael and St John’s Cathedral, Bathurst; at the time, A was an 11-year-old altar boy under the supervision of the appellant, an acolyte. The appellant denied the allegations. At issue was the admissibility of the evidence of B and C that a decade before the alleged offending against A, the appellant had committed acts of sexual misconduct with them (which facts were undisputed by the appellant) and was received as tendency evidence (over the objection of the appellant). The plurality summarised the evidence thus:[34] [6] “B” and “C” each gave evidence that he was a boarder at St Stanislaus’ College, Bathurst (“the College”) in 1985. Each had turned 13 in that year. At the time, the appellant was an assistant housemaster at the College. “B” said that on an occasion when he was homesick and upset he had gone to the appellant’s bedroom. The appellant cuddled him and this progressed to him rubbing “B”’s genitals. On a second occasion, the appellant approached “B” as “B” stood naked by his locker after showering. The appellant “grabbed both my arse cheeks and tried to, you know, separate them so to speak”. This did not last long because “B” “gave him a mouthful”. “B” later received a caning for swearing at the appellant.[7] “C” gave evidence of an occasion when he too had been homesick and upset and had visited the appellant in the appellant’s room. The appellant massaged “C”’s shoulders and back. The massage progressed to the groin area and in the course of it, the appellant touched “C”’s genitals. On a subsequent occasion, the appellant massaged “C”, who was again feeling homesick. On this occasion “C” fell asleep on the appellant’s bed and woke to find the appellant kneeling beside him with his head near “C”’s groin. “C” felt a sensation of wetness around his penis. He got up and left the room. About a week later, the appellant apologised, saying that he had done the wrong thing and that he could be in a lot of trouble for it.[34] McPhillamy (2018) 92 ALJR 1045 (Kiefel CJ, Bell, Keane and Nettle JJ).

Ratio Decidendi

Legal Principle Established

The joinder of sexual charges is presently governed by s 102(6) of the Criminal Procedure Act 1921 (SA). Section 102 relevantly 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. …(9) In this section— sexual offence means— (a) an offence against section 48, 48A, 49, 50, 56, 58, 63B or 72 of the Criminal Law Consolidation Act 1935; or (b) an attempt to commit, or an assault with intent to commit, any of those offences; or (c) a substantially similar offence against a corresponding previous enactment; or (d) an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph. If, as here, there are only two complainants and their evidence is not cross-admissible, a defendant is very likely to be successful in an application for severance in accordance with s 102(6). Thus in Maiolo it was stated:[26][126] A number of decisions of the High Court, originating with the decision in Sutton, clearly decide that where a number of sexual offences are charged on the one Information in relation to different complainants, the general rule is that they should not be tried together if the evidence on one count is not admissible on another count. Thus, Gibbs CJ in Sutton stated:Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v Boardman [1975] AC 421, at pp 442, 447, 459 and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Director of Public Prosecutions v Boardman [1975] AC 421, at p 459, to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar facts.[127] De Jesus v The Queen and Hoch are later decisions of the High Court to the same effect. It is the position, as both the prosecutor at trial and the judge accepted, that the above approach to severance remains applicable and that will be so at any re-trial conducted under the new provisions of the Evidence Act. [Footnotes omitted][26] (2013) 117 SASR 1, 42-43. The observations of logic and fairness in the decisions of the High Court in Sutton v The Queen (1984) 152 CLR 528, 540-541 (Brennan J), 561-563 (Dawson J) and De Jesus v The Queen (1986) 61 ALJR 1, 8-10 (Dawson J) still have force and lead to severance of charges against different complainants when cross-admissibility is not established in accordance with s 102(6)(b) of the Criminal Procedure Act 1921 (SA).