R v AGIUS
[2007] SASC 412
•23 November 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AGIUS
[2007] SASC 412
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
23 November 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS
Appeal against conviction - appellant charged with multiple counts of rape arising from separate incidents involving five different women - counts with respect to one complainant not pursued - fresh information filed charging eight counts involving the four remaining complainants - joint trial of all eight counts - appellant convicted by jury verdict of six counts and acquitted of two - whether trial Judge should have severed the counts referrable to each complainant from the counts with respect to the other complainants - whether the evidence of each complainant was only admissible on the counts relating to that particular complainant.
Held, dismissing the appeal, by majority: at the time of the pre-trial ruling the rejection of the application for separate trials was an order well within the Judge’s discretion - at the time of summing up, notwithstanding the narrowing of issues, the evidence remained cross-admissible - the Judge’s directions were adequate in the circumstances.
By minority: having regard to the issues in the trial, the joint trial did not result in a miscarriage of justice - not necessary to consider the question of the correctness of the trial Judge's decision in the circumstances applying at the time when it was made - the Judge's directions were inadequate but no substantial miscarriage of justice has resulted.
Criminal Law Consolidation Act 1935 (SA) s 278, s 353, referred to.
R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Smith (1998) 71 SASR 543, applied.
Sutton v The Queen (1984) 152 CLR 528; Perry v The Queen (1982) 150 CLR 580; Hoch v The Queen (1988) 165 CLR 292; Phillips v The Queen (2006) 225 CLR 303; Pfennig v The Queen (1994) 182 CLR 461; De Jesus v R (1986) 61 ALJR 1; R v Liddy (2002) 81 SASR 22; R v Verma (1987) 30 A Crim R 441; R v El-Hayek (2004) 144 A Crim R 90; Weiss v The Queen (2005) 224 CLR 300, considered.
R v AGIUS
[2007] SASC 412Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY AND SULAN JJ:
This is an appeal against conviction.
Introduction
The appellant was charged with multiple counts of rape arising from separate incidents involving five different women. The information alleged two acts of rape by the appellant against each of the five complainants. After the appellant was arraigned in the District Court, he applied for severance of the counts in relation to each complainant. The trial Judge refused the application.
After the trial Judge determined to conduct a joint trial, the prosecutor advised the court that she was not proceeding with the counts relating to CH, one of the five complainants. A fresh information was filed charging eight counts involving the four remaining complainants. The appellant was convicted by jury verdict of six counts and acquitted of two. The two counts of which he was acquitted related to MB, one of the four remaining complainants.
This appeal raises the issue of whether there should have been separate trials in respect of each complainant. It also raises a question of cross-admissibility of evidence in the trial and the adequacy of the trial Judge’s directions to the jury.
The trial Judge determined the application for separate trials having regard to the complainants’ declarations. The evidence at trial of the four complainants, MH, AI, MB and KG, was consistent with their declarations. This evidence, and the declaration concerning the withdrawn complaints of CH, are summarised later in these reasons.
Counsel for the appellant conceded that the counts were properly joined.[1] However, it was submitted that the trial Judge should have severed the counts referrable to each complainant from the counts with respect to the other complainants, in order to avoid prejudice or embarrassment being occasioned to the defence. Counsel submitted that the evidence of each complainant was only admissible on the counts relating to that particular complainant.
[1] The counts were joined in a single information, pursuant to s 278(1) of the Criminal Law Consolidation Act 1935 (SA). Section 278(1) and (2) provides:
78 – Joinder of charges
1) Subject to the provisions of this Act, charges for two 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.
2) Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
The application for severance was conducted at a time when all matters with respect to all complaints, including the identity of the offender, were in issue. The fact that the Crown had DNA evidence from four complainants, said to match the appellant’s DNA, did not of itself lead to the conclusion that identity would not be an issue in the trial.
The trial Judge rejected the submission of defence counsel that the evidence only related to whether each complainant consented. The Judge considered that the evidence was relevant to both the identification of the appellant as the perpetrator of the crimes alleged and to establishing the commission of the offences in the manner each complainant alleged. He ruled that the evidence of each of the five complainants was cross-admissible in relation to all counts.
In respect of the manner in which the similarities were relevant to proving identity, the trial Judge referred to the DNA evidence:
… I agree with [counsel for the Crown] that the DNA evidence is circumstantial evidence of the identity of the alleged offender, which, when taken with the evidence of the various complainants, is very strongly probative of the fact that the accused was involved in these incidents.
There is no DNA evidence in relation to MB, however. If the jury is satisfied beyond reasonable doubt that the accused is the person who had sexual intercourse with the other four complainants, then, in my opinion, applying Mitchell J’s approach in Sutton, the evidence of the circumstances of the incidents involving MB is so similar to the others that it should be left to the jury to decide whether they are also satisfied that he must have been involved in MB’s case as well.
The trial Judge observed that there were similarities in respect of the alleged offences, including the manner in which each complainant was approached and offered a lift in the appellant’s vehicle. In each case the complainant was taken to a deserted area near the city. In each case the manner in which the offence was carried out was similar. There were other similarities to which the trial Judge referred.
The trial Judge concluded:
In my opinion, the evidence in relation to each count is cross‑admissible on the other counts because it is relevant to the issue of whether the accused committed the acts alleged by each of the five complainants.
…
I conclude that the similarities I set out above are strongly probative of the behaviour of the accused, because it is so highly improbable that the witnesses would give such similar accounts unless the incidents occurred as they described. I am satisfied, for the purposes of this ruling, that there is no reasonable view of the similar fact evidence which is consistent with innocence. For that reason, the probative value of the evidence is so strong that it, in the words of Brennan J in Perry v R (1982) 150 CLR 580 at 609, “clearly transcends its prejudicial effect”.
As earlier observed, prior to empanelling the jury, the Crown entered a nolle prosequi in relation to the counts involving CH. A new information, dated 31 January 2007, was filed concerning the remaining eight counts. The defence did not renew its application for severance.
The appellant was acquitted of both counts relating to MB.
He was convicted on all other counts.
The Trial
The Crown Case
CH stated that at approximately 11.30 pm on 9 August 1997, she was drinking with a male and a female friend at a car-park in St Kilda. She and her female friend needed to go to the toilet, so the male friend drove them to a nearby service station. CH said that she was quite drunk and unstable. She recalled getting out of the vehicle but did not remember going into the service station. Her next memory, after alighting from her friend’s vehicle, was being driven down the road by a man whom she had never seen before. Eventually the man stopped his vehicle on the side of the road in an isolated area. CH attempted to walk away. Her next memory was of standing in front of the car wearing only a t-shirt and brassiere. The man vaginally raped her and forced her to perform oral sex on him. She was then permitted to dress herself. At her direction, the offender drove her to a street near her home at which point he permitted her to leave the vehicle.
On 26 December 2003, MH had recently arrived in Adelaide from the Riverland. She was walking in the city to meet friends when a man in a vehicle, whom she mistakenly thought she recognised, beckoned her toward his vehicle. He offered to drive her to where she was to meet her friends. MH accepted the offer. The man did not stop where she indicated. He had centrally locked the vehicle doors and she was therefore unable to get out of the vehicle. He drove her to a deserted area near the city. He forced her out of the vehicle. He vaginally raped her and forced her to commit fellatio upon him. He took money from her handbag. When the opportunity arose, she ran away and contacted a friend who picked her up in Pirie Street in the city.
In the early hours of the morning on 18 April 2004, AI was walking along Hindley Street attempting to hail a taxi to take her home. AI noticed a person in a vehicle motion towards her. AI stopped and the driver, who identified himself as a taxi driver, asked her if she was looking for a taxi. AI sat in the front passenger seat of the car and asked the driver to drive her to Daw Park. He drove to a deserted area near the city. He locked the doors of the vehicle, using central locking. The man threatened AI, forced her into the rear seat of the vehicle, performed cunnilingus on her and vaginally raped her. Eventually he permitted her to dress herself and, at her direction, he drove to Anzac Highway where he permitted her to get out of the vehicle.
On or about 6 July 2004, MB was walking along Torrens Road towards Port Adelaide when a vehicle pulled alongside her. The male driver offered her a lift, which she accepted. She advised the man where she wanted to be taken but he did not follow her instruction. Instead, he drove to a deserted area near the city. He forced her to engage in penile vaginal sexual intercourse. He drove her back to Torrens Road and let her out of the car.
On 14 November 2004, KG was at a nightclub at Hindley Street. KG intended to catch a taxi. As she was walking along Currie Street, a car pulled over. The driver asked if she needed a ride. He said he was a taxi. KG said she needed go to Parkside. She sat in the front passenger seat. KG directed the man to her house. When they arrived at her street she asked the man to drop her off but he did not stop. Instead, the man drove along Hutt Road and turned on to South Terrace. He stopped the car on a side road near the South Parklands. The man forced her to commit an act of fellatio on him. He then vaginally raped her. He eventually drove her to a street near her home, where he permitted her to get out of the vehicle.
DNA recovered from samples taken from each of CH, MH, AI and KG were a close match to the DNA of the appellant. This was strong circumstantial evidence that the appellant was the offender, with respect to those four complainants. MB refused to agree to forensic examination and as a result, no sample for DNA testing was available.
The Defence Case
The appellant gave evidence that each of the women was a prostitute, who willingly entered his vehicle, and who agreed to being driven to an isolated location and there engage in consensual sexual conduct. He said he paid for the sexual favours. In these respects the appellant’s account was markedly different from that of the complainants. The appellant denied having met the fourth complainant, MB. He denied any contact with her.
Relevant Legal Principles
The commencing point for a trial judge when determining cross-admissibility is to identify those facts in issue to which the proposed evidence may have relevance and probative value. As Dawson J observed in Sutton: [2]
If, however, the evidence which tends to prove the commission of other offences has a sufficient additional probative value beyond showing a disposition to commit crime or a particular type of crime, then the evidence is admissible for that reason and not because it may show a criminal propensity.
[2] Sutton v The Queen (1984) 152 CLR 528 at 562.
Dawson J then considered the test to be applied in determining whether similar fact evidence has sufficient probative value or relevance, other than to establish bad character or criminal disposition: [3]
The test favoured by Gibbs CJ in Perry v The Queen was that the evidence should not be only technically relevant (otherwise than is shown in propensity); it must be really material; it must have strong probative force. In the same case, Wilson J thought that to be admissible the evidence must have a sufficiently high degree of probative force to outweigh the inevitable prejudice flowing from the nature of the evidence. Similarly, Brennan J would admit similar fact evidence only where its probative force clearly transcends its merely prejudicial effect.
[3] Sutton v The Queen (1984) 152 CLR 528 at 563 (Dawson J); see also Perry v The Queen (1982) 150 CLR 580 at 605, 610.
Evidence of this nature is circumstantial evidence, but is a special kind of circumstantial evidence and, in determining whether it is admissible, the trial Judge must consider whether there is a rational view of that evidence which is consistent with the innocence of the accused. If a trial judge concludes that there is a rational view of the evidence consistent with the innocence of the accused, then it ought not to be admitted because it cannot be said to have a sufficiently strong probative force.[4]
[4] Sutton v The Queen (1984) 152 CLR 528 at 564 (Dawson J).
In Hoch,[5] Mason CJ, Wilson and Gaudron JJ expressed this principle as whether the evidence possesses a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. In particular they said:[6]
Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force. That strength lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises as a matter of commonsense and experience the objective improbability of some event having occurred other than as alleged by the prosecution.
[5] Hoch v The Queen (1988) 165 CLR 292 at 294.
[6] Hoch v The Queen (1988) 165 CLR 292 at 294-295.
It follows that where the occurrence of certain events is in issue, the evidence may be relevant to negative suggestions of innocent association or to prove the commission of the offence such as the circumstances in which the offending occurred. Its value lies in the improbability that several unrelated complainants would give accounts of such a similar nature that logic drives one to the conclusion that the happenings of which they speak occurred.
In Phillips,[7] the Court discussed the requirements for admissibility of similar fact evidence and reaffirmed the test of admissibility as stated in Pfennig[8] - that evidence of propensity is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused. In Phillips, the Court observed: [9]
[There is] the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence ... is exceptional and requires a strong degree of probative force”. It must have “a really material bearing on the issues to be decided”. It is only admissible where its probative force “clearly transcends its merely prejudicial effect”. “[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind” . The criterion of admissibility for similar fact evidence is “the strength of its probative force”. It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence. The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”. Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”.
...
On one view, the problems presented by the tender of similar fact evidence are merely problems of relevance. On another view, evidence tendered as similar fact evidence must first be assessed for relevance, and, if that hurdle is overcome, must satisfy some additional test based on probative force.
[7] Phillips v The Queen (2006) 225 CLR 303.
[8] Pfennig v The Queen (1994) 182 CLR 461.
[9] Phillips v The Queen (2006) 225 CLR 303 at [10].
Separate Trials
The appellant’s grounds of appeal challenge the trial Judge’s order refusing severance and require this Court to consider whether the evidence of each complainant was cross-admissible in respect of all counts on the information, for the purposes identified by the trial Judge.
Earlier in these reasons we have set out the Judge’s findings and conclusions with respect to the application for separate trials. We have also set out a summary of the evidence given by the complainants in the trial. At the time of the application before the Judge that evidence was yet to be given. The evidence given at trial accorded with the declarations provided by each complainant.
During the course of the trial the issues narrowed. During the appellant’s evidence in the defence case identity was admitted in respect of the charges concerning three of the four complainants. As a result, the appeal raises for consideration the adequacy of the trial Judge’s directions on the topic of cross-admissibility.
In cases where an accused is charged with a number of sexual offences against more than one complainant, if the charges are to be jointly tried, ordinarily, the evidence on each count should be admissible on the other counts.[10] Counsel for the Crown was correct to concede that, if the evidence of each complainant was not cross-admissible, separate trials should be ordered.
[10] De Jesus v R (1986) 61 ALJR 1 at 3; R v Liddy (2002) 81 SASR 22 at 53; Phillips v The Queen (2006) 225 CLR 303 at 307.
A review of the complainants’ accounts reveals similarities that can fairly be described as striking. Each complainant was spoken to by a male person who was seated in a vehicle and they were walking in a public place. Each was offered a lift and then taken to a different location than requested. Each was taken to an isolated location and attacked. Each was subjected to sexual assaults that had a material similarity about them. In the case of four of the complainants the attacker left DNA that closely matched the DNA of the appellant. Because of those striking similarities, the evidence of each complainant was cross-admissible with respect to the charges concerning the other complainants - on the issue of identity, the course of conduct followed by the appellant in enticing the complainants into his vehicle, the appellant’s conduct in selecting an isolated location and in the manner of his attack on each complainant.
By the end of the trial as earlier observed, identity was not in issue concerning three of the complainants. In respect of each of these three complainants there had been the close DNA match. Identity remained in issue in regard to the remaining complainant where there had been no DNA match.
With respect to the charges concerning the three complainants where identity was not in issue, there remained a dispute as to the appellant’s conduct. That dispute encompassed the appellant’s initial contact with the complainants, his later conduct in taking them against their wishes to an isolated location and the manner of the sexual conduct that occurred. It was in these circumstances that the trial Judge had to sum up on the topic of cross-admissibility.
Cross-Admissibility
In our view, the complainants’ evidence in the present case was strikingly similar in each of the respects earlier identified. The evidence of each was also relevant to rebut the accused’s claim that the three complainants had acted in a similar manner toward him. This was an unusual case in that not only was there a striking similarity in the complainants’ accounts, but there was a striking similarity in the appellant’s account, of what occurred with each complainant. This was a clear case for cross-admissibility.
In the present case, viewed in the context of the prosecution case, there was no reasonable view of the similar fact evidence consistent with the appellant’s innocence. The similar fact evidence had a strong degree of probative force. The similar fact evidence had a really material bearing on the issues to be decided. The probative force of the similar fact evidence clearly transcended its prejudicial effect. There was sufficient nexus between the primary evidence on a particular charge and the similar fact evidence from the other charges. The probative force of the similar fact evidence was sufficient to make it just to admit the evidence notwithstanding its prejudicial effect.
A review of earlier High Court authority and in particular the observations of members of the High Court in Sutton,[11] Hoch[12] and Pfennig[13] confirms the cross admissibility of the evidence in the present case. Each decision concerned the application of principle to differing facts and each by analogy supports cross-admissibility in the present case.
[11] Sutton v The Queen (1984) 152 CLR 528.
[12] Hoch v The Queen (1988) 165 CLR 292.
[13] Pfennig v The Queen (1995) 182 CLR 461.
In order for evidence of propensity to be admissible, the evidence must, accepting the Crown case, and not taking into account any defences available to the accused, bear no reasonable explanation other than the inculpation of the accused in the manner alleged. The probative value of the evidence will only exceed its prejudicial character if, on the Crown case, the evidence permits of no reasonable explanation other than that for which the Crown contends. For the evidence to be admitted, its cogency must be such that if accepted it bears no reasonable explanation other than that the accused was the person who committed the offence charged.
In the present case the evidence of each complainant as to the identity of the person who allegedly raped her and as to the manner in which the rapes were said to have occurred was relevant to facts in issue on all counts with respect to all complainants.
Counsel for the appellant submitted that there were no striking similarities between the accounts of each complainant that would imbue them with sufficient probative value to exceed their prejudicial character.
Counsel for the Crown submitted that the method adopted by the appellant in offering each complainant a lift in his vehicle, the conduct of the appellant in ignoring the request of each complainant to be let out of the vehicle at her designated destination, and the fact that the appellant then drove to a deserted area near the city were factors to which the Court could have regard in concluding that the evidence in respect of each complaint was cross-admissible. Additional factors included the application of the central locking system of the vehicle and that after the appellant had raped each victim, other than MH who ran away, he transported them to a place near their nominated destination.
The trial Judge was required to view this evidence in the context of the Crown case.[14] That case included DNA evidence closely matching the appellant found in samples taken from a number of the complainants after medical examination. This evidence alone was strong circumstantial evidence to establish that the same offender had committed all the alleged acts.
[14] Phillips v The Queen (2006) 225 CLR 303 at [63].
In Hoch, a case in which similar questions had arisen, Mason CJ, Wilson and Gaudron JJ said: [15]
In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue.
[15] Hoch v The Queen (1988) 165 CLR 292 at 296.
The trial Judge correctly ruled the evidence cross-admissible for the purpose of showing the improbability of events occurring other than as each complainant alleged. He was correct in concluding that the evidence was cross-admissible and that the counts were properly joined. He was correct in not exercising his discretion to order separate trials.
Adequacy of Directions
The trial Judge in the course of his summing up provided the following directions as to cross-admissibility:
The second way in which [similar fact evidence] may be used is in relation to the behaviour of the accused in cases in which it is known that he was involved, namely [MH] in counts 1 and 2, [AI] in counts 3 and 4 and [KG] in counts 7 and 8.
If you are satisfied beyond reasonable doubt, for example, of the evidence of [MH] – we will start with the first one – and if you are also satisfied that these striking similarities, underlying unity et cetera are present in the other counts, then you are entitled to use the evidence of [MH], if you deem it appropriate, to support the evidence of [AI] or [KG] or all of them in so deciding whether you are satisfied beyond reasonable doubt of those other counts.
As I said, the question is not whether, if two complainants did not consent, then the third and fourth complainants probably did not either.
Nor is it appropriate to reason that the accused must have committed these further crimes because he is that type of person; so-called propensity reasoning.
If a pattern or system has been demonstrated, if there is that underlying unity or striking similarity between the counts, you are entitled to consider the improbability of two or three, or four complainants who are not known to each other, giving independent accounts of the behaviour of the accused which is so consistent with each other, unless those counts are true.
[Counsel for the Crown] took you through the many common features which she points to in support of the prosecution cases. I will not repeat them all now. I am sure you remember her reference to the short time periods between each incidence, the similarity of the locations, the similarity of the approaches on the street, the representation of the taxi in at least two cases, the patterns of the sexual attacks, the choices between gentle and rough treatment in two cases, the taking of the money or purses or wallet in three cases, the use of central locking in two cases, the dropping them back afterwards in all four cases and such matters.
You must firstly be satisfied though, that there are these common features. You cannot refer, for example, to the money or the purse or the wallet in three cases if you are not satisfied that he in fact took the purse or the wallet, if there is a possibility that, you know, she left her purse in the phone box, or if she lost her purse in some other way, or the wallet. So you must be satisfied that these common features exist. You must be satisfied that there was talk of gentle and rough treatment, or that there was the use of the central locking. You must be satisfied those common features exist before you may use them in the way in which I have been describing.
[Defence counsel] is quite right to point out that you must not use this principle to build a structure on the basis of shifting sand. I know he did not use those words, they are my words. You must use this principle but only when you have a firm base, and that is one finding beyond reasonable doubt in relation to one of these incidents before you can start crossing to the other incidents. If you cannot start with one of which you are satisfied beyond reasonable doubt without this principle being used, if you cannot start there, if there was no count that satisfies you to that extent, then this principle is irrelevant and you should acquit him of all counts.
But if there is one count where you are satisfied beyond reasonable doubt, then you are entitled to find him guilty of that count, and you then may be able to take that conclusion, when viewed in the light of the pattern or the system, and consider whether that helps you draw an inference of guilt in the next incident, and, if so, each finding of guilt can be accumulated to the next one as you progress through the consideration of the rest of the counts.
This process is not automatic. You must look at each incident separately and decide whether the evidence of that complainant, if it is assisted by the evidence of another or others, satisfies you of the guilt of the accused on that particular count.
If there is a reasonable view of this evidence consistent with innocence at the end of the day, if these inferences are not strong enough to satisfy you beyond reasonable doubt you must acquit him.
Counsel for the appellant complained that the trial Judge’s directions were “confused and unhelpful”. Counsel submitted that it was an “artificial and impossible” exercise to draw a distinction between the “use of the evidence as to the reliability and truthfulness of a complainant’s version but not as to the reliability and truthfulness of their evidence about consent”. Counsel submitted that the direction was contrary to the decision in Phillips.
Phillips is authority for the proposition that one complainant’s evidence about lack of consent is not relevant, or probative, of another complainant’s evidence about lack of consent, even if both complainants may be regarded as having been assaulted in strikingly similar circumstances. However, the Court in Phillips limited the principle to the circumstances of that case. The Court considered that the points identified as similar in Phillips were not unusual. The Court then concluded:[16]
Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case.
[16] Phillips v The Queen (2006) 225 CLR 303 at 318.
The defence case in respect of MH, AI and KG was that their evidence of events leading up to each of them entering the vehicle and travelling to deserted areas around the inner Adelaide area was untrue and that their evidence about the events which then occurred when they each alleged that they were raped was untrue.
The similar fact evidence was cogent, probative and relevant to the issues in the trial. It would be an affront to commonsense if the evidence of the complainants of each alleged offence was not cross-admissible. It was admissible to refute the evidence of the appellant that each of the three complainants approached him and offered him sexual favours for money.
The descriptions of each complainant about the events were such that, if untrue, it would stretch coincidence to disbelief. The pattern of activity described by each complainant, if accepted, bore no reasonable explanation other than that one person adopted a modus operandi of inviting women into his car, then driving them to deserted areas near the city, threatening them and forcing them to engage in sexual intercourse, fellatio and cunnilingus. The improbability of four unrelated women giving similar descriptions of how events unfolded suggests that the events they described must have occurred.
The trial Judge’s directions with one exception were appropriate. It was necessary for the jury to decide whether the evidence of one complainant, if accepted, could assist with other evidence in arriving at a verdict with respect to a particular charge. The exception relates to the Judge’s reference to an “accumulation” of findings of guilt. This was an unfortunate expression. However, the view could be taken, that in context, the jury would not have been misled. In the paragraph following the reference to an accumulation of findings of guilt, a correct direction was given. We have concluded in the circumstances that the direction, when considered as a whole, was adequate and the jury would have understood that they should consider each count separately on the evidence relevant to that particular count. We do not consider that a risk of miscarriage of justice arose from the Judge’s direction.
Conclusion
At the time of the pre-trial ruling the rejection of the application for separate trials was an order well within the Judge’s discretion. At the time of summing up, notwithstanding the narrowing of issues, the evidence remained cross-admissible. The Judge’s directions were adequate in the circumstances. Having regard to the foregoing reasons, this appeal should be dismissed.
WHITE J: The appellant was originally charged on one information with 10 counts of rape arising from separate incidents involving five complainants. Two counts were laid in respect of each of the five complainants.
A District Court judge rejected an application for separate trials of each of the five sets of charges. After that decision, but before the empanelment of the jury, the Prosecution entered a nolle prosequi in respect of the two counts involving one of the complainants, CH. It then laid a fresh information alleging the eight counts concerning the remaining four complainants. The appellant did not make any further application for separate trials.
The appellant was convicted on three sets of charges (those involving the complainants MH, AI and KG), but acquitted on the fourth (involving the complainant MB). The following table gives the details of the charges and the verdicts concerning them:
Count
NoComplainant Date of Incident Manner of
IntercourseVerdict Manner of
Verdict1 MH 26-Dec-03 vaginal Guilty Majority 2 MH 26-Dec-03 fellatio Guilty Majority 3 AI 18-Apr-04 cunnilingus Guilty Unanimous 4 AI 18-Apr-04 vaginal Guilty Unanimous 5 MB between 28-Jun-04
and 7-Jul-04fellatio Not Guilty Majority 6 MB between 28-Jun-04
and 7-Jul-04vaginal Not Guilty Majority 7 KG 14/11/2004 fellatio Guilty Unanimous 8 KG 14/11/2004 vaginal Guilty Unanimous The Appeal
The appellant appeals against the convictions. He complains of the decision of the judge not to order separate trials and of the directions given to the jury concerning the use which could be made of each complainant’s evidence in relation to the other charges.
The amended Notice of Appeal is expressed in a way suggesting that the appeal is against the interlocutory order of the judge refusing separate trials. This led to some of the submissions on appeal focussing on the circumstances which existed at the time of the judge’s interlocutory order, and the correctness or otherwise of the judge’s order in that context. A characterisation of the appeal as an appeal against the judge’s interlocutory order is inappropriate. Rather, the appeal is against the six guilty verdicts. The appellant’s grounds of appeal should be understood as contending that the verdicts result in a miscarriage of justice,[17] with that miscarriage being said to arise, firstly, from the joint trial of the four sets of charges and, secondly, from the directions to the jury. The question of whether the joint trial gave rise to a miscarriage of justice is to be determined by reference to the whole of the circumstances which unfolded at trial. Those circumstances included the evidence given by the prosecution witnesses and, in this case, by the appellant himself.
[17] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 353(1).
The position is similar to that occurring when there is a joint trial of two or more co-accused. In relation to that circumstance, King CJ in R v Collie, Kranz and Lovegrove[18] said:
…[T]he critical question in the end is whether an injustice has been caused by the joint trial. It sometimes happens that a joint trial held in consequence of an entirely justified refusal of the trial judge to accede to an application for separate trials may be seen, when all the evidence is in, to have resulted in injustice. … The critical question on an appeal is not whether the exercise of the discretion of the trial judge miscarried on the material before him at the time when he made his decision, but whether the joint trial has produced a miscarriage of justice in the sense of depriving the appellant of a fair trial.[19]
Similarly, in R v Smith,[20] an appeal arising from the joint trial of several charges against the one accused, Perry J said:
The question of joint or several trials is a question for the discretion of the trial judge. It was within the discretion of the learned trial judge to reject the application for severance in this case.
In any event, the function of a court of appeal is different. On appeal, the manner of the exercise of the discretion is irrelevant. The only question on appeal is whether “by reason of the joint trial, there has been a miscarriage of justice”.[21] [Citations omitted]
[18] (1991) 56 SASR 302.
[19] Ibid at 310.
[20] (1998) 71 SASR 543.
[21] Ibid at 549. See also R v Verma (1987) 30 A Crim R 441 at 445; R v El-Hayek [2004] NSWCCA 25 at [28]; (2004) 144 A Crim R 90 at 96.
This means that it is not necessary to consider the correctness of the judge’s interlocutory order at the time, and in the circumstance applying, when it was made. The judge’s reasons are nevertheless relevant to the determination of the appellant’s complaint that a miscarriage of justice has occurred.
Issues on Appeal
The appellant accepted that for the purposes of s 278(1) of the CLCA the offences had been appropriately joined in the one information. He did, however, rely upon s 278(2) of the CLCA which provides:
Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
Both at trial and on appeal it was common ground that unless the evidence relating to one pair of charges was cross-admissible on the other charges, separate trials should have been ordered.[22]
[22] De Jesus v The Queen (1986) 61 ALJR 1.
The issues on the appeal are:
1.Whether a miscarriage of justice occurred because all four sets of charges were tried simultaneously. The principal submission of the appellant was that the decision in Phillips v The Queen[23] meant that evidence concerning one complainant was not admissible in relation to the counts concerning the others.
2.Whether the judge’s directions to the jury concerning the use which could be made of the evidence of each complainant in relation to the other counts was appropriate.
The Circumstances of the Incidents
[23] [2006] HCA 4; (2006) 225 CLR 303.
MH – 26 December 2003
In December 2003 MH was aged 32 and married. Her evidence was that at about 6.00 pm on 26 December 2003, she was walking along Hindley Street in the City, towards the Berkeley Hotel. The driver of white Holden Commodore sedan called to her. MH initially thought that she recognised him and moved towards the car. The driver then engaged her in conversation and offered her a lift to the Berkeley Hotel. Although it was only a short distance away, MH got into the car. However, the driver did not stop at the Berkeley. Instead he drove to the deserted former North Adelaide Railway Station. He used the vehicle’s central locking to lock all its doors and moved his body over KH so as to restrain her. He kissed her lips and breasts. MH protested but her protests were ignored. The driver then said that he would take MH to the Casino. Instead he drove to an uncovered carpark in Ifould Street in the City. There, after some kissing of her mouth and breasts, the driver told MH to get out of the car and to bend over. While she was in that position he had vaginal sexual intercourse with her from behind. He then required MH to perform an act of fellatio. Both the driver and MH then got back into the car. He went through MH’s bag, taking money from her purse. Having retrieved her bag, MH then left the carpark on foot and telephoned friends whom she told about the rape.
The incident was reported to the police later the same night. MH gave a description of the male which corresponded generally with the appellant’s appearance. DNA extracted from a vaginal swab matched that of the appellant.
MH said that in December 2003 she and her husband were endeavouring for her to become pregnant.
AI – 18 April 2004
In April 2004, AI was 20 years old and had lived in Adelaide for one week. She had moved from a regional city to Adelaide for employment in an insurance office. AI said that at that time she was unfamiliar with the streets and features of Adelaide and its suburbs.
AI’s evidence was that, after a night out with friends commencing on the evening of 17 April 2004, she was walking along Hindley Street at about 4.30 am. She was looking for a taxi to take her to her home at Daw Park. A car pulled up alongside her and the driver asked if she was looking for a taxi. She asked if he was a taxi and was given an affirmative answer. AI was accustomed to unmarked cars being used as taxis from time to time in her home city. Thinking that the car was a cab, AI got in the front passenger seat and gave the driver directions as to her address. Instead of taking her to Daw Park, the driver took her to an isolated area on River Street, Hindmarsh and used the central locking to lock all the car doors.
The driver told AI that he was going to rape her. AI glimpsed a small saw-like object and felt it against her neck. She believed it to be a weapon. AI was manoeuvred into the back seat of the vehicle with the driver. He told her that he intended to have intercourse with her both vaginally and anally. He said that if AI complied he would be gentle, but that if she disobeyed his directions, he would be rough. AI protested but complied. The driver then engaged in an act of cunnilingus. Next he got out of the car, removed his jeans, and then had vaginal intercourse with AI on the back seat of the car. He then compelled AI to perform two separate acts of fellatio. After that, AI was forced to get out of the car and the driver performed a further act of cunnilingus as well as penetrating her vagina digitally. AI was then told to bend over the boot of the vehicle and the driver had vaginal intercourse with her from behind.
After completion of the intercourse, the driver wiped both AI and himself with a paper napkin and threw the napkin into the road gutter.
The driver then said that he would drive AI to a place where she could find her way home. AI checked her bag and found that her purse was missing. Although she searched for it, it could not be found. While they were driving, AI recognised Anzac Highway. She knew the address of a friend and asked to be dropped off near there.
AI reported the events to her friends and to the police later that same morning. She gave a description of the driver which was consistent with that of the appellant. DNA extracted from a vaginal swab taken on 18 April 2004 and from AI’s underpants matched that of the appellant.
Count 3 on the information alleged the act of cunnilingus and Count 4 the vaginal intercourse which occurred outside the vehicle.
MB – Early July 2004
In early July 2004, MB was a mother of three children and was 32 weeks pregnant with her fourth. She lived at Croydon.
MB’s evidence was that at about 6.15 pm one night in early July 2004, she was walking on Torrens Road, Croydon. The driver of a late model medium sized sedan (MB thought that it was a Toyota Camry) had stopped at the junction of Croydon Avenue with Torrens Road. He asked MB if she would like a lift. She initially declined but upon the driver repeating the offer, did enter the front passenger seat. MB gave the driver directions to her home. Instead of taking her home, the driver took her, against her protests, to River Street, Hindmarsh. While they were driving, he took her right hand with his left hand and slid it down his pants so that she held his penis. At River Street, the driver pushed MB’s head down onto his penis to perform an act of fellatio. He then penetrated MB’s vagina digitally. The driver then required MB to get into the back seat, where he had vaginal intercourse with her (without using a condom). On its completion, the driver wiped himself with some tissue taken from a packet on the console. He then drove MB to a place on Torrens Road where she indicated she wished to be dropped off.
MB’s description of the driver was generally consistent with the appellant’s appearance.
MB said that she was embarrassed and upset at what had happened. When she arrived home she had a bath and, after her children were in bed, told her partner what had happened. The incident was reported to the police a few days later. MB underwent a medical examination but not a full forensic procedure. She was more concerned about the health of her unborn baby. No vaginal swabs or other samples were taken for the purposes of DNA analysis.
KG – 14 November 2004
In November 2004 KG was 22 years old, working in a supermarket and living with a flatmate at Parkside.
KG’s evidence was that on the evening of 13 November 2004 she had been socialising with friends in the City. She acknowledged having consumed a considerable amount of alcohol (describing her level of intoxication as 7 or 8 on a scale of 10). At about 2.30 am on 14 November, she was walking east in Currie Street looking for a taxi to take her home. Between Morphett Street and King Williams Street, a sedan pulled alongside her and the driver asked if she needed a ride. KG asked if he was a taxi to which the driver said “Yes, of course”. KG then entered the front seat. She gave the driver directions to her home in Anglo Street, Parkside and he drove her to that street. However, the driver did not stop at her house, saying that he needed to get change. He then drove KG to a place near the junction of South Terrace and East Terrace in the City. He commenced kissing KG and manoeuvred her into the back seat. Against KG’s protests, he compelled her to perform an act of fellatio. He penetrated KG’s vagina digitally and then had vaginal intercourse with her.
When KG retrieved the contents of her bag which had spilled on the floor, she could not find her wallet. The driver then took her to Regent Street, Parkside. He told her not to tell anyone because he knew her address.
KG told her flatmate immediately of what had occurred. The incident was reported to the police the same day and a forensic examination was carried out. DNA obtained from a vaginal swab matched that of the appellant.
KG described the driver as of medium build, chubby and possibly of mixed racial origin.
Other Evidence
The respective friends and partners of the complainants confirmed the reports of rape which had been made to them (although in the case of MH there was one person who could not be found and one person who did not wish to give evidence). In the case of MH, AI and KG, the police officers confirmed the reports of rape which had been made to them.
Medical examination of MH on 26 December 2003 revealed a petechial (“love bite”) bruise to her right neck and bruising to both breasts. The doctor who examined AI on 18 April 2004 saw multiple split type abrasions at the bottom of her vagina consistent with having been caused by sexual intercourse within the previous 24 hours. Medical examination of KG on 14 November 2004 revealed a small linear abrasion above her left eyelid as well as two bruises of uncertain age.
The complainants denied any contact with, or knowledge of each other. There was no suggestion that their evidence could be explained by some form of contact or collusion.
Following the arrest of the appellant, MB was shown a photograph array of a number of persons including the appellant. She did not identify the appellant’s photograph.
The Appellant’s Evidence
The appellant was 35 at trial. His evidence was that he had picked up MH in Hindley Street on 26 December 2003. MH had attracted his attention. They struck up a conversation in which she said she was “a working girl” and offered “thirty bucks for head and $60 for sex”. He then drove to War Memorial Drive in the Parklands and parked near some tennis courts. He gave MH $60 and they had consensual vaginal intercourse in the back seat of his car. He did not use a condom because MH said “you don’t need one, just don’t come in me”. There was no act of fellatio or other sexual intercourse. At the end he used tissues to clean himself. He then dropped MH off, at her request, at the end of Rundle Mall in the city.
In relation to AI, the appellant said that as he was moving his car away from a parked position in Hindley Street he was stopped by AI. She told him that she was “working” and told him it was $30 for “head” and $60 or $70 for “sex”. He told her to hop into the car. She asked him if he was an “undercover cop”. He then drove, at AI’s direction, to River Street, Hindmarsh and pulled over at a place which she indicated. He gave her $60. AI then suggested they get into the back seat, took her clothes off and suggested he use a condom. They then had consensual vaginal intercourse but not fellatio. No other sexual activity took place. AI then cleaned herself with a tissue which she took from her own bag. At AI’s request he then dropped her off near the Queen Elizabeth Hospital at Woodville.
The appellant denied any contact with MB at all.
In relation to KG, the appellant said that his car was stationary in a line of traffic in Hindley Street in the early hours of 14 November 2004. He was approached by KG who asked him if he was looking for a girl. When he said yes, she got into the car and told him the prices (the same prices as had been given to him on the earlier occasions by the other complainants). At KG’s direction, he drove to a dead end road off South Terrace. They both got into the back seat and, after he had paid her the money, had consensual vaginal intercourse. He then drove KG, at her request, to the KFC outlet on Glen Osmond Road and dropped her off.
Did a Miscarriage of Justice Result from the Joint Trials?
As noted earlier, it was common ground that separate trials should have been ordered if the evidence on each count was not admissible on the others.
Relevant Principles as to Cross-admissibility
Evidence which is directly and logically linked to the issues and has a specific connection with the commission of the crime charged may be admissible if it lends a high degree of cogency to the prosecution case, notwithstanding that it also discloses criminal conduct on the part of the accused.
In Pfennig v The Queen[24] the majority judgment of Mason CJ, Deane and Dawson JJ indicated that similar fact evidence is admissible if there is no reasonable view of the evidence consistent with the innocence of the accused.[25] This follows from the fact that similar fact evidence is circumstantial evidence. When there is no reasonable view of the evidence consistent with the innocence of the accused, it can be said that the prejudicial effect of the evidence is outweighed by its probative value. The statement in Pfennig to this effect was confirmed in the joint judgment in Phillips v The Queen.[26]
[24] (1995) 182 CLR 461.
[25] Ibid at 483-84.
[26] [2006] HCA 4 at [9]; (2006) 225 CLR 303 at 308.
It is the strong probative value of the evidence which makes it admissible.[27] The strong degree of probative force must clearly transcend the prejudicial value of the evidence.[28] That probative strength will often be found to lie in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.[29] However, such features may not be necessary in all cases. In Pfennig v The Queen Mason CJ and Deane and Dawson JJ said:
[S]triking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.[30]
[27] Hoch v The Queen (1988) 165 CLR 292 per Mason CJ, Wilson and Gaudron JJ at 294-95. See also Phillips v The Queen [2006] HCA 4 at [54]; (2006) 225 CLR 303 at 320-21.
[28] Phillips v The Queen Ibid.
[29] Hoch v The Queen (1988) 165 CLR 292 at 294-95.
[30] (1995) 182 CLR 461 at 484. See also Phillips v The Queen [2006] HCA 4 at [54]; (2006) 225 CLR 303 at 321.
When, as in this case, the commission of the acts charged must be proved, the probative value of the evidence may lie in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events alleged did in fact occur.[31] Different questions may arise when the issue is the identity of the offender.
[31] Hoch v The Queen (1988) 165 CLR 292 at 295 per Mason CJ, Wilson and Gaudron JJ; Pfennig v The Queen (1995) 182 CLR 461 at 482 per Mason CJ, Deane and Dawson JJ.
The Issues to which the Evidence was said to be Cross-Admissible
The first issue to which the evidence of MH, AI and KG was said to be relevant was the prosecution allegation that the person responsible for each of the incidents (including that involving MB) was the appellant. Contrary to the appellant’s submissions, the fact that DNA matching that of the appellant was extracted from the vaginal swab taken from three complainants did not mean that the identification of the appellant as the male involved in the incidents with those complainants was no longer an issue. The DNA evidence was no more than circumstantial evidence (admittedly strong circumstantial evidence) that the appellant was the male involved in each case. The identification of the appellant as the male involved was the first basis upon which the judge ruled the evidence to be relevant.
In relation to MH, AI and KG, the appellant admitted in his evidence to having had vaginal intercourse with them, after picking them up in his car. Those admissions resolved the issue of identity in relation to the counts involving them. As the appellant was acquitted of the counts involving MB, no question of miscarriage of justice can arise in relation to Counts 5 and 6. It is not necessary therefore to consider further the relevance of the evidence of each complainant to the issue of identity.
The second issue to which the evidence of each of the complainants was said to be relevant was the conduct of the appellant alleged by the prosecution. On the prosecution case, that conduct comprised vaginal intercourse with each complainant, fellatio with three of them, and cunnilingus with one (albeit in circumstances in which acts of fellatio had also occurred). Proof of the appellant’s conduct in relation to each complainant was the second basis upon which the trial judge ruled the evidence to be cross-admissible.
Given the appellant’s evidence, there was ultimately no issue about the vaginal intercourse in relation to MH, AI and KG. The issue became refined to that of whether the acts of non-vaginal intercourse with these complainants and the conduct involving MB had occurred. Because of the acquittal on Counts 5 and 6, the conduct alleged by MB can, for present purposes, be ignored. For the purpose of considering whether a miscarriage of justice has occurred, the issue can be taken to be the prosecution allegation that the appellant had engaged in the relevant acts of non-vaginal intercourse involving MH, AI and KG which were the subject of Counts 2, 3 and 7.
It was not suggested at trial or on appeal that the evidence was cross‑admissible to negative a belief by the appellant that the complainants were consenting to his sexual activity with them.
Consent Not the Sole Issue
The appellant submitted that none of the evidence of MH, AI or KG could be used in relation to the counts concerning the others. His acknowledgement of intercourse with each meant, he submitted, that the only issue remaining was whether that intercourse had been consensual. A lack of consent by one complainant could not be probative of an absence of consent by another. Extensive reference was made to Phillips v The Queen,[32] in which the High Court held (amongst other things) that evidence that one complainant had not consented to intercourse was of no probative value in determining whether an unrelated complainant, on a separate occasion, had, or had not, consented to intercourse with the accused.
[32] [2006] HCA 4; (2006) 225 CLR 303.
However, for the reasons already given, the appellant’s evidence that he had engaged in vaginal intercourse with MH, AI and KG did not mean that the only issue remaining in the trial was that of consent. The appellant denied that the conduct involving fellatio in the case of MH and KG, and cunnilingus in the case of AI took place. As already noted, the prosecution had to prove that that conduct had occurred. It also had to prove that that conduct had been non-consensual. The prosecution did not assert that the evidence of each complainant was cross-admissible on the issue of consent. It sought to rely upon the evidence of each complainant to establish the conduct which had not been admitted by the appellant.
In Phillips, the defendant had been convicted after a single trial of multiple sexual offences including three offences of rape. Those offences arose from separate incidents involving separate victims. The appellant had admitted to the conduct relied upon for some of the offences, but claimed that it had been consensual. In other cases, he admitted contact with the victims, but denied that the acts of intercourse alleged by them had occurred at all. In relation to those charges in which the issue was consent, the High Court held that the evidence of one complainant was not cross‑admissible. This was because evidence that one complainant had not consented to intercourse was of no probative value on the issue of whether another complainant, on a separate occasion, had not consented. Evidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not consent.[33] The evidence did not satisfy the first requirement for admissibility, namely, that of relevance.
[33] Ibid at [50], 319.
The High Court did not hold that evidence from one complainant could never be relevant to proof of an absence of consent and, in my respectful opinion, it would be wrong to construe its reasons as having that effect. The joint judgment said:
Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case.[34]
It remains to be determined whether similar fact evidence may be admissible, for example, to prove the existence of circumstances making it highly unlikely that sexual activity of any kind had been consensual. Those circumstances may include the way in which the complainant and the accused came to be in the company of each other. There may be several accounts of strikingly similar conduct of a kind which is the very antithesis of a prelude to consensual sexual activity. However, for the purposes of the determination of this appeal, it is not necessary to explore these issues. As already noted, the prosecution did not contend either at trial or on appeal that the similar fact evidence was admissible to prove the absence of consent, or of any circumstance from which such an absence could be inferred.
[34] Ibid at [47], 318.
The High Court in Phillips also considered whether the evidence of one or more complainants was admissible to prove any other issue in the case and, specifically, the prosecution allegations concerning the conduct of the accused which had not been admitted by him.[35] The Court held that the evidence was not admissible for this purpose. That conclusion turned, however, on the facts of Phillips. The Court considered that in the circumstances alleged by the prosecution in that case there was no striking similarity in the evidence, and no other specific connection between the evidence relating to one count and the issues to be proved in another.[36] As I have said, this was a conclusion based on the facts of Phillips. It is not a conclusion that similar fact evidence may never be admissible to prove conduct by an accused. Earlier decisions make it plain that in an appropriate case, evidence may be cross-admissible for this purpose.
[35] Ibid at [51]–[58], 319-22.
[36] Ibid at [54]-[56], 320-21.
The question on this appeal is whether there was a sufficient connection between the conduct of the appellant reported by the complainants to make their evidence cross-admissible for the purpose of proving that conduct.
The Similarities in the Evidence of the Complainants MH, AI and KG
The prosecution pointed to the following similarities in the respective accounts of MH, AI and KG. Each was spoken to while travelling on foot on a City street. On each occasion, the male was driving or parked in a “newish” sedan. The driver created circumstances, by a pretext, in which each trusted him sufficiently to get into the front seat of the car. In two cases that pretext was that he was driving a taxi. Each was driven to an isolated area in or near the City at which the rapes took place without risk of interruption or detection. In two cases, the central locking of the car was used. Each complainant was subjected to vaginal and oral intercourse (two cases of fellatio and one of cunnilingus, but the latter occasion also involved incidents of fellatio). The sexual intercourse took place either in the vehicle itself, or immediately outside it. In two cases the male wiped himself clean with tissues. Each complainant was then driven to a place nominated by her which was not the place of the original pick-up. In one case, the rapist took money from the complainant’s purse, and in the other two cases, the complainants could not find their purse or wallet. The descriptions of the rapist, although somewhat general, were consistent with that of the appellant. The presence of semen in each complainant’s vagina provided strong circumstantial evidence that the rapist had, in each case, ejaculated during the vaginal intercourse.
Some of these features have more significance than others. For example, it may not be remarkable that someone intending to have casual sexual intercourse with a woman picked up off the street, whether consensual or non-consensual, would go to a place where it could occur unobserved and uninterrupted. It may also not be uncommon for the intercourse in circumstances such as these to be both vaginal and oral. But overall, when considered in combination, the similarities are, in my opinion, quite marked.
I have excluded a comparison with MB’s evidence from the above review. The basis for the acquittals in her case is of course not known, but the principal feature which distinguished the evidence relating to the counts involving her from the evidence of the others is the absence of any DNA evidence. It is reasonable to infer that the jury was not satisfied beyond reasonable doubt that it had been proved that the appellant was the male involved in her case. This means that the jury must have entertained as a reasonable possibility that there was another person with a similar system also active on the streets of Adelaide in 2004. If the issue to which the evidence was said to be cross-admissible was that of identity, this would be a cause for concern. However, as I have said, the issue is instead that of whether the non-vaginal intercourse alleged by each of MH, AI and KG did take place in addition to the vaginal intercourse which was acknowledged by the appellant. If MB’s evidence is included in the comparison, then (apart from the fact that she was picked up on a main suburban road and not in the City) the similarities are even more marked.
When one considers the improbability that each of MH, AI and KG could, immediately after separating from the appellant, give to friends and then to the police a remarkably similar account of the appellant’s conduct, the inference that their respective accounts are truthful and accurate is very strong. That improbability is so strong that it can be said, in my opinion, that the threshold for cross-admissibility of the evidence was satisfied.
Further, the fact that the appellant had engaged in both vaginal and oral intercourse with one of the complainants having induced her into his car in the way alleged (if the jury was satisfied of that fact) was probative of him having engaged in the same, or very similar conduct, with another complainant picked up in the same (or very similar) circumstances. It is highly improbable that three females, not known to each other, who came into the appellant’s company in the circumstances which they described, would, so soon after separating from the appellant, give remarkably similar accounts of the appellant’s sexual activity with them.
Accordingly, in my opinion, the appellant has not established that the joint trial of the eight counts has resulted in a miscarriage of justice.
The Directions to the Jury
The appellant made three criticisms of the judge’s directions to the jury. First, it was said that the directions were unhelpful and confusing in that they did not assist the jury to distinguish between permissible and impermissible uses of the cross-admissible evidence. Secondly, it was submitted that confusion arose from the directions concerning the issue of identification in the case of MB. Thirdly, it was said that the directions permitted the jury to consider that they could “accumulate” the evidence of all complainants so as to reach a finding of guilt.
The judge told the jury that before they could use the evidence of each complainant in relation to their consideration of the counts concerning the other complainants, they had first to be satisfied that the evidence revealed a striking similarity, pattern or system. He also emphasised that there were two ways in which the cross-admissible evidence could not be used. The first was on the issue of consent. The jury was told twice that even if they were satisfied that some complainants had not consented, they could not reason that this made it more likely that the others had not consented either. The judge also told the jury that the evidence of each complainant could not be used for any form of propensity reasoning.
The judge identified for the jury two permissible uses of the cross-admissible evidence. The first was in their consideration of the identity of the male involved in the conduct with MB. The judge said that only the evidence of AI could be used for this purpose (presumably because both AI and MB said that their rapes occurred in River Street, Hindmarsh). The jury was told that it was only if they were satisfied that Counts 3 and 4 involving AI had been established, and only if they considered that there was a striking similarity or underlying unity in the evidence of AI and MB, that they could use the appellant’s admitted involvement with AI to conclude that he was also the male responsible for the conduct alleged by MB. It is not necessary to recite the judge’s directions on this topic in full. They were, in my opinion, clear and, in any event, the jury acquitted the appellant of the counts involving MB.
The whole of the judge’s directions as to the second way in which the cross-admissible evidence could be used is set out in the reasons of Gray and Sulan JJ. The directions as to the particular purpose for which that evidence could be used appear in five paragraphs. I set out those paragraphs below (which I have numbered for ease of reference).
1.The second way in which [the cross-admissible evidence] may be used is in relation to the behaviour of the accused in cases in which it is known that he was involved, namely [MH] in Counts 1 and 2, [AI] in 3 and 4 and [KG] in 7 and 8.
2.If you are satisfied beyond reasonable doubt, for example, of the evidence of [MH] – we will start with the first one – and if you are also satisfied that these striking similarities, underlying unity et cetera are present in the other counts, then you are entitled to use the evidence of [MH], if you deem it appropriate, to support the evidence of [AI] or [KG] or all of them in so deciding whether you are satisfied beyond reasonable doubt of those other counts.
…
3.If a pattern or system has been demonstrated, if there is that underlying unity or striking similarity between the counts, you are entitled to consider the improbability of two or three or four complainants who are not known to each other, giving independent accounts of the behaviour of the accused which is so consistent with each other, unless those counts are true.
…
4.But if there is one count where you are satisfied beyond reasonable doubt, then you are entitled to find him guilty of that count, and you then may be able to take that conclusion, when viewed in the light of the pattern or the system, and consider whether that helps you draw an inference of guilt in the next incident, and, if so, each finding of guilt can be accumulated to the next one as you progress through the consideration of the rest of the counts.
5.This process is not automatic. You must look at each incident separately and decide whether the evidence of that complainant, if it is assisted by the evidence of another or others, satisfies you of the guilt of the accused on that particular count. [Emphasis added]
It can be seen that in the paragraphs numbered 1 and 3 the jury was told simply that the cross-admissible evidence could be used in relation to “the behaviour of the accused”. The judge did not elaborate on what he meant by that expression. The jury may have understood the judge to be referring to the overall behaviour of the appellant (ie, his actions in picking up the complainants, and taking them to an isolated or deserted area, engaging in sexual intercourse and his actions thereafter), or to his actions at each location (ie, oral as well as vaginal intercourse), or to the character of the appellant’s behaviour as alleged by the complainants (engagement in non-consensual acts of intercourse).
The second of these possibilities was a permissible purpose, the third an impermissible purpose, and the first had within it the possibility that the jury could use the cross-admissible evidence to satisfy themselves of facts from which an inference could be drawn that the incidents of intercourse with each complainant had been non-consensual. The direction in the paragraph numbered 2 does not clarify the matter. It simply identifies the ultimate use to which the evidence may be put, without instructing the jury as to the particular way in which the cross-admissible evidence could “support” a finding of guilt. The direction in the paragraph numbered 4 was also, in my opinion, not helpful. It did not tell the jury how the findings of guilt could be “accumulated”. Moreover, it left open the possibility of an accumulation of findings of guilt by a process of propensity reasoning.
It is true that the jury was told that the cross-admissible evidence could not be used in relation to the issue of consent. That counts against them having understood the judge to be referring to the behaviour of the accused in the third of the senses identified above. It is also true that in addition to the reference to an accumulation of guilt, the jury was told that each count had to be considered separately and without any form of propensity reasoning. The fact that verdicts of not guilty were given on Counts 5 and 6 and the fact that the verdicts on Counts 1 and 2 were majority verdicts suggest that the jury gave effect to this direction. Nevertheless, in my respectful opinion, the directions were inadequate. They did not in terms make it clear to the jury that the only aspect of the appellant’s behaviour which the cross-admissible evidence could assist in establishing was the prosecution allegation that he had engaged in a form of oral intercourse with each of the complainants. Nor did the directions make clear the way in which the evidence of one complainant could be used “to support” or to “assist” the evidence of another.
I conclude therefore that the jury was not adequately instructed.
The Proviso: No Substantial Miscarriage of Justice
The inadequacy of the judge’s directions does not mean that the appeal must be allowed. This Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.[37] The Court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellant was proved beyond reasonable doubt to be guilty of the offences upon which the jury returned guilty verdicts.[38]
[37] CLCA s 353(1).
[38] Weiss v The Queen [2005] HCA 81 at [41], (2005) 224 CLR 300 at 316.
For this purpose, I have reviewed the entire record of the trial. That review leads me to the conclusion that no substantial miscarriage of justice has occurred in this case. The prosecution case was strong. The cross-admissible evidence had, in each case, strong probative value. It was admissible, ie, able to be used on each count, because there was no reasonable view of the evidence consistent with the innocence of the appellant. I have referred earlier to the improbability of three separate women, with no knowledge of each other or of the circumstances alleged by the others, each reporting almost immediately after being separated from the appellant, that he had raped them both vaginally and orally. That improbability is heightened by the close similarity in the accounts of the circumstances by which each complainant came to be in the appellant’s vehicle. I repeat that this is not a case in which the identity of the appellant is an issue. If that had been the case, different issues may have arisen.
Further, even without the cross-admissible evidence, the prosecution case was very strong. For example, the prospect that each of AI and KG would have been willing to prostitute themselves for $60 by engaging in unprotected sexual intercourse with a complete stranger who picked them up off the street at the end of a night’s socialising with friends and while they were on their way home is so remote that, in my opinion, it can be disregarded. Save that MH was not on her way home at the time, the same can be said of her case. AI had been in Adelaide for only one week. The possibility that she would have known the way to a small, secluded street in Hindmarsh is remote. Similar points can be made with respect to the other complainants.
Finally, the verdicts of guilty on the counts concerning vaginal intercourse indicate that the evidence of the three complainants that they were not consenting to that intercourse must have been accepted. It is improbable that the jury would not also have accepted the evidence of these three complainants about the acts of oral intercourse.
I am satisfied that, despite the inadequacies in the judge’s directions, no substantial miscarriage of justice has occurred. Accordingly, I would dismiss the appeal.
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