Miller v The King

Case [2024] SASCA 152

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MILLER v THE KING

[2024] SASCA 152

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice McDonald and the Honourable Auxiliary Justice Hall)

20 December 2024

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

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

Appeal against conviction.

On 22 November 2023, a judge sitting alone found the appellant guilty of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that the appellant had engaged in various unlawful sexual acts with or towards the complainant between January 2000 and January 2006. At the start of the alleged offending, the complainant was 12 or 13 years old, and the appellant was around 28.

The appellant raised six grounds of appeal to this Court:

1.      whether the trial judge gave adequate reasons for verdict (Ground 1);

2.whether the trial judge’s reasoning to acceptance of the complainant’s evidence resulted in a miscarriage of justice (Ground 2);

3.whether the trial judge’s reasoning to rejection of the appellant’s evidence resulted in a miscarriage of justice (Ground 3);

4.whether the trial judge failed to direct himself adequately with respect to the forensic disadvantage suffered by the appellant due to the passage of time between the alleged offending and the trial (Ground 4);

5.whether the trial judge failed to direct himself adequately in accordance with his obligations under s 34R of the Evidence Act 1929 (SA) (‘Evidence Act’) (Ground 5); and

6.whether the trial judge should have disqualified himself because of a reasonable apprehension of bias (Ground 6).

The prosecution led evidence of the complainant’s mother encountering the appellant with the complainant in a campervan while they were all on a holiday together in Queensland. The complainant said that when her mother discovered them, the appellant had his hands down her pants and moved them away. The mother’s evidence was that they were lying on two mattresses with their hands touching and that they jumped apart when she walked in. She did not see the appellant’s hands down the complainant’s pants. The judge said that he was ‘satisfied that that incident occurred as the complainant and her mother say’, notwithstanding the difference in accounts.

The prosecution led various pieces of discreditable conduct evidence relevant to showing that the appellant had a sexual interest in the complainant.

Held (by the Court), allowing the appeal on Grounds 1 and 5, setting aside the conviction and remitting the matter for retrial:

1.The trial judge erred by purporting to accept both the complainant’s and her mother’s accounts of the mother encountering in the campervan without…

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Miller v The King [2024] SASCA 152
Case
[2024] SASCA 152
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CaseChat Overview and Summary

The appeal before the Supreme Court of South Australia, Criminal Division, concerned a conviction for sexual offences. The appellant, Miller, was accused by the complainant of engaging in a series of sexual acts when she was between the ages of 12 and 16. The prosecution relied heavily on the complainant's evidence, while the appellant denied the allegations, admitting only to visiting the complainant's bedroom window on three occasions for counselling purposes.

The legal issues before the court included whether the trial judge provided adequate reasons for accepting the complainant as a credible and reliable witness, and whether the judge properly directed himself regarding the use of evidence of discreditable conduct under sections 34P and 34R of the *Evidence Act 1929* (SA). Specifically, the appellant argued that the judge failed to adequately explain why he found the complainant credible, focusing on the judge's statement that her account was detailed. Furthermore, the appellant contended that the judge did not properly explain the permissible and impermissible uses of evidence relating to the appellant's alleged sexual interest in the complainant, such as the campervan incident, admissions to Church Elders, and the Maslins Beach visit.

The Court found that the trial judge's reasons for accepting the complainant as credible were insufficient, as the mere detail of her account did not, in itself, explain why it was found to be credible and reliable. More significantly, the Court determined that the trial judge failed to give himself adequate directions in accordance with section 34R(1) of the *Evidence Act*. This failure meant the appellate court could not ascertain whether evidence of the appellant's alleged sexual interest in the complainant was used impermissibly. The judge's inadequate treatment of the campervan evidence also prevented the court from understanding how a significant discrepancy in the evidence was resolved, which was crucial for assessing the complainant's credibility. Given the central role of credibility in the trial, these errors meant the appellate court could not be satisfied that the appellant's guilt was proven beyond reasonable doubt.

Consequently, the appeal was allowed, the conviction was quashed, and the matter was remitted for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

It is not necessary to address every ground of appeal. For the following reasons, the appellant has established error as particularised in parts of Grounds 1 and 5. This is not a case for application of the proviso. The appeal must be allowed, the conviction set aside, and the matter remitted for retrial.Background When the complainant was around three years old, her parents separated. At about that time, the complainant’s mother became a member of the Woodside congregation of the Jehovah’s Witnesses. The complainant and her brother were later baptised into that faith. The appellant was brought up as a member of the Jehovah’s Witnesses. It was in that community that he became associated with the complainant and her family. He became close friends with the complainant’s mother. He began to spend more time with the complainant’s family after the complainant’s father passed away, when the complainant was about ten. The prosecution case, relying primarily on the complainant’s evidence, was that when the complainant was around 12 or 13 years old and going through puberty, her relationship with the appellant became sexual. The change in that relationship began with inappropriate flirtatious remarks and escalated to inappropriate touching and a series of sexual acts including penile/vaginal sexual intercourse. The offending occurred in several locations, including the complainant’s bedroom, in respect of which the appellant would call at the complainant’s bedroom window at night. The prosecution alleged that the offending did not stop until the occasion of a confrontation at the complainant’s family home, when the complainant was 16. The prosecution also alleged that the appellant made partial, implied admissions to the Elders of the church. The appellant gave evidence denying the offending. It is not necessary, other than in the context of consideration of the grounds of appeal, to traverse where issue was joined. The appellant admitted to going to the complainant’s bedroom window on three occasions but gave evidence that this was for the purposes of counselling the complainant.Whether the trial judge gave adequate reasons for verdict (Ground 1) This ground was particularised by several complaints of deficiency in the trial judge’s reasons. It is convenient to start with the complaints that the trial judge did not give adequate reasons for accepting the complainant as a credible and reliable witness (Particulars 1.1, 1.2 and 1.4). The judge expressly found the complainant to be a credible and reliable witness. The overarching complaint is that he failed to explain why and how he reached this conclusion. The appellant focused on what he described as the only apparent expressed reason for this finding, being that the account was detailed. The judge said:[1]Despite legitimate criticisms of her evidence, I found the complainant’s account of material facts credible and reliable. At 34 she was giving evidence of events when she was aged between 13 and 16, although she had given a detailed statement of her allegations in 2016 when she was 27. …The strength of the complainant’s evidence on material matters lies in its detail, often evidence of the surrounding circumstances.[1] R v Miller [2023] SADC 159 at [182]-[184].

Evidence

Evidence Before The Court

Sections 34P and 34R respectively provide, relevantly: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.…34R—Trial directions(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. The appellant submitted that in a number of instances, the trial judge failed to give himself a direction in accordance with s 34R(1) as to the impermissible use of evidence of the appellant having a sexual interest in the complainant. The first of these concerned the evidence of the campervan incident in Queensland. The trial judge had, as identified above, expressly identified the relevance of this evidence, being to show that the appellant had a sexual attraction to the complainant. Relevant to his obligation under s 34R(1), he then said only this:[12]To be used for such a purpose, it must be proved beyond reasonable doubt. The accused denied the allegation. I bear in mind that the prosecution evidence on this topic must comply with s 34P. I find that it does.[12] [2023] SADC 159 at [217]. Next, there was evidence that the appellant had admitted to Church Elders that he had touched the complainant’s breasts. This was in the context of the Elders determining whether to reinstate him to the church, in 2006. Relevantly, in respect of this evidence, the judge said:[13]It is true, as the defence submits, that the touching of the breasts is not a charged act. However, the evidence is capable of demonstrating a sexual interest the accused had for the complainant. I find that this evidence complies with s 34P of the Evidence Act.[13] [2023] SADC 159 at [256]. Third, the complainant gave evidence of a trip to Maslins Beach. She said that the appellant had ‘bathing G-strings’ for her and asked her to shave her pubic hair in preparation. The judge said in respect of that evidence:[14]That visit to Maslins Beach is uncharged, but it is evidence capable of showing a sexual interest in the complainant. To be admissible it would have to be proved beyond reasonable doubt. I bear in mind the impermissible uses of uncharged acts. I am satisfied of the truth of the complainant’s evidence on this topic.[14] [2023] SADC 159 at [192].

Decision

Reasons for decision

In the present case, the failure of the judge to direct himself in accordance with s 34R(1) leaves this Court in a position of not knowing whether he used that evidence impermissibly. In addition, the judge’s failure to explain his treatment of the campervan evidence adequately meant, first of all, that the appellant could not know how the judge resolved a significant discrepancy in the evidence. That discrepancy was itself important to the assessment of the complainant’s credibility. In those circumstances, this Court cannot place weight on the verdicts. Having regard to the contest of credibility at the heart of the trial, the Court is not in a position to conclude that the appellant’s guilt was established beyond reasonable doubt.Conclusion We allow the appeal, quash the conviction and remit the matter for retrial.

Ratio Decidendi

Legal Principle Established

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