R v B, AM

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, AM
[2015] SASCFC 174
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Peek)
30 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - GENERALLY
This is an appeal against conviction. The appellant was convicted by jury of persistent exploitation of a child. The allegations were in relation to a single complainant, the appellant's daughter, allegedly occurring between 21 April 2011 and 19 November 2013.
The appellant was initially tried in November 2014. The Judge dismissed the jury after they were unable to reach a verdict, and a new trial was ordered. The re-trial was heard in May 2015 before a different District Court Judge and a jury. The complainant was not called as a witness at the re-trial. The Judge instead admitted an audio-visual record of the evidence given by the complainant at the November 2014 trial, pursuant to s 13D of the Evidence Act. This admission is the basis for the first ground of appeal. The appellant also submits, as the second ground of appeal, that the Judge erred in failing to direct the jury as to permissible and non-permissible uses of discreditable conduct evidence given by a witness SC. Thirdly, the appellant submits that the Judge erred in failing to adequately direct the jury in relation to the application of the standard and burden of proof as well as the need to scrutinise the complainant's evidence closely.
Held (Sulan J and Peek JJ, Kourakis CJ concurring):
1. The trial Judge wrongly exercised the discretion under s 13D by concluding that the section allowed a vulnerable witness to avoid giving evidence if they simply did not wish to do so. A witness's simple refusal is not a sufficient reason to enliven the discretion.
2. The Judge erred by failing to give a direction to the jury as to the permissible and impermissible uses of the evidence of the witness SC.
3. It is not necessary to deal with ground 3.
Held, allowing the appeal (Sulan and Peek JJ):
4. The appeal is allowed and the conviction is set aside. The Court does not order a re-trial. The appellant is entitled to a verdict of acquittal.
Per Kourakis CJ:
5. The appeal is allowed and the matter is remitted to the District Court for re-trial.

R v B, AM
[2015] SASCFC 174
Court of Criminal Appeal: Kourakis CJ, Sulan and Peek JJ

KOURAKIS CJ: I gratefully adopt the summary of the trial evidence and litigation history set out in the judgment of Sulan and Peek JJ.
I would hold that the Judge erred in the exercise of his discretion to admit the audio-visual record of the testimony given by MCF in the first trial (the official record) largely for the reasons given by Sulan and Peek JJ. In summary the exercise of the discretion miscarried because the Judge erred in finding that the “middle course of allowing further cross-examination on discrete matters is not available”.
It is not readily apparent from the Judge’s brief reasons why he came to that conclusion. If the Judge’s finding was based on a construction of s 13D of the Evidence Act 1929 (SA) (the Act) that limited the Judge’s discretion to admitting the official record or not, the construction was mistaken as a matter of law. A Judge exercising the discretion conferred by s 13D of the Act may admit an official record conditionally on the presentation of the witness for examination or cross-examination, at large, or on specified topics.
If the Judge’s conclusion reflected a finding of fact that there were good reasons to excuse MCF from giving further evidence on the limited topics identified by the appellant’s trial counsel, then it was mistaken because there was no evidential material on which that finding could be made. The information given by the prosecutor from the bar table that MCF had refused to testify was not evidentiary material. Evidence in admissible form from MCF, her family, medical practitioners or counsellors about the effect that testifying would have on MCF’s psychological or emotional wellbeing was required. The failure to address the question whether, and to what extent, MCF would be distressed by giving evidence, in itself, vitiated the exercise of the discretion.
The conviction must therefore be set aside. However, I respectfully differ from Sulan and Peek JJ on the most appropriate disposition of the appeal. I would remit the matter to the District Court for a retrial for the reasons which follow.
I acknowledge that this question requires an evaluative judgment which balances different, and incommensurable, elements of the public interest. On the one hand there is the strong public interest in the prosecution of serious crime. On the other hand there is the principle that the prosecution of a defendant should not be oppressive.
On the latter aspect of the public interest I acknowledge that a retrial will be the third trial faced by the appellant. I accept that the appellant will suffer much anxiety and that his life will be substantially disrupted whilst he awaits, and during, his trial. Of course the appellant may well be convicted again and that inconvenience found to be deserved, but, for present purposes, the possibility of his innocence must be kept in mind. However, it is not uncommon for defendants to face a third trial. The appellant is likely to be bailed pending a third trial. It is not submitted that his previous trials have left him without funds, or at least a capacity, to secure representation for his third trial.
Perhaps the strongest reason to refuse to order a retrial and to, instead, order an acquittal is the decision of the Director of Public Prosecutions (the Director) not to lead any evidence of MCF’s psychological or emotional health and instead present the Judge with a fait accompli. However, I am inclined to think that the Director’s decision was the product of an imperfect consideration of the matter by the prosecutor and was not a strategic attempt to force a favourable decision on the Judge. Seldom should the public interest in the proper prosecution of a serious crime be sacrificed by the honest mistake of a prosecutor.
Finally, there is the decision apparently made by MCF not to give evidence. I would not accord much weight to that decision. This Court cannot know MCF’s reasons for saying that she would not testify. MCF was just 15. It is notorious that victims of sexual abuse equivocate about giving evidence, let alone having to repeat the exercise. Some victims of sexual abuse take many years before they are prepared to testify, finding the strength to give evidence only after becoming adults. Even though the appellant’s guilt, and therefore MCF’s status as a victim, remains an open question by reason of the quashing of the conviction, the possibility that MCF is a victim of sexual abuse must be factored into the balance. I acknowledge that MCF may again refuse to testify. If that is the case, I would expect the Director to promptly discontinue the prosecution and the appellant will quickly be relieved of the burden of a third trial.
On the former aspect of the public interest, the public’s interest in the prosecution of serious crime, there is a prima facie case that the appellant has committed the offending. MCF was believed by the jury albeit without having been subjected to the additional cross-examination. For my part, the points on which defence counsel proposed to cross-examine do not appear to be momentous but I acknowledge that is for a jury to determine. Be that as it may, the statements which the appellant made to SC speak powerfully of the appellant’s guilt. The prosecution case is a strong one. My references to the possibilities of the appellant’s guilt or innocence and the possibilities that MCF was, or was not, a victim of sexual abuse must be understood against the strength of the prosecution case.
The public interest in the prosecution of crime is all the greater when there are victims of the crime and when the detection, prosecution and deterrence of crimes of the particular kind in question are important. The effects of sexual offending on child victims, their broader families and the community generally are well known. The difficulties experienced by victims in disclosing offenders, and participating in the prosecution of sexual offences, are also well known.
The balance in this case favours remitting the matter for retrial. I would so order.
I agree with the reasons of Sulan and Peek JJ on the other grounds.
SULAN AND PEEK JJ: The appellant, AMB, was convicted of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The alleged acts of sexual exploitation occurred between 21 April 2011 and 19 November 2013, at Nailsworth and Salisbury East.
He has appealed the conviction.
The appellant was tried by a Judge and jury in November 2014. After a trial lasting seven days, the jury advised the Judge that they were unable to reach a verdict. The jury was discharged and the Judge ordered a re‑trial. We shall refer to that trial as “the previous trial”. At the previous trial, MCF gave evidence and was examined and cross-examined by defence counsel.
The re-trial was heard in May 2015 before a different District Court Judge and jury. At the re-trial, MCF was not called as a witness. Her evidence, which had been video-recorded at the previous trial, was played to the jury and used as her evidence on the re-trial. The Judge ruled that, pursuant to s 13D of the Evidence Act 1929 (SA) (“the Act”), the audio-visual record of the evidence taken at the previous trial should be admitted and that MCF was relieved wholly from an obligation to give evidence in the proceeding. That ruling is the subject of the first ground of appeal.
Before dealing with the grounds of appeal, it is important to understand the factual background.
Background
MCF was born on 22 April 2000. The appellant and MCF’s mother, NY, met on line on the internet during a random chat. NY invited the appellant to her house and, on that occasion, they had sexual intercourse. This was a single occasion upon which the appellant and NY were involved. NY became pregnant resulting in the birth of MCF. The appellant discovered that he was the father of MCF when the appellant’s mother informed him that there had been a birth notice placed in the newspaper at about the time of MCF’s birth on 22 April 2000.
In 2003 the appellant married BF, who knew about NY and communicated with NY on line. When BF found out that NY, who had been living out of Adelaide, was moving back to Adelaide, she encouraged the appellant to build a relationship with MCF, whom the appellant had met for the first time when MCF was three years of age. MCF regularly stayed with the appellant and BF. In 2007 NY, who had been involved in a motor vehicle accident, voluntarily surrendered custody of MCF to the appellant and BF, as she was unable to adequately care for MCF.
When MCF came to reside with the appellant and BF, there were two other children of their marriage. Two more children were born after 2007. The family lived together at Nailsworth and, later, at Salisbury East.
The prosecution case was that in about the middle of 2011 when MCF was 11 years of age, the appellant began to touch her in the area of her breasts. There were instances when the appellant entered the bathroom whilst MCF was showering. On occasions, he entered the shower and touched the lower part of her back with his erect penis.
Between 2011 and 2013 it is alleged that the sexual contact escalated. The prosecution case was that by 2013 the appellant committed acts of cunnilingus and digital vaginal penetration. In 2013 MCF told a school friend, NW. NW eventually informed one of the school teachers at their school. A report was made to police. On 19 November 2013 MCF made a statement to police which resulted in the appellant being charged.
At the trial, the prosecution called SC, who was a long-time friend of the appellant and was a groomsman at his wedding to BF. In February 2013 the appellant, during a conversation with SC, told him that MCF was developing into a woman, that he had feelings of attraction towards her and that he was struggling with those feelings. He told SC that he was afraid that at some point he would not be able to control his thoughts or his feelings, and he was scared that he would become a predator. The prosecution case was that this conversation took place at about the time the appellant escalated his sexual abuse of MCF.
The appeal
The grounds of appeal are:
1.That the trial had miscarried as a result of the tender of MCF’s evidence at the previous trial in circumstances where the trial Judge refused the defence application for MCF to be called.
2.The trial Judge erred in failing to direct the jury as to the permissible and impermissible use of the evidence of the witness SC.
3.That the learned trial Judge erred in failing to adequately direct the jury in relation to the proper application of the standard and burden of proof and the need to scrutinise MCF’s evidence carefully.
Ground 1: the proper use of s 13D of the Act
Section 13D provides:
13D—Court's power to admit evidence taken in earlier proceedings
(1)     If, on application by a party to civil or criminal proceedings before a court,             the court is satisfied that—
(a)    evidence given by a witness in earlier criminal proceedings is relevant         to the proceedings before the court; and
(b) the witness—
(i)    has died; or
(ii)     has become too ill or infirm to give evidence; or
(iii)     has not, after diligent search, been found; or
(iv)     is a vulnerable witness,
the court in the later proceedings has a discretion to admit an official record of the evidence.
(2)     An "official record" of evidence is a record made at the direction or with the         approval of the court before which the evidence was taken and, if an audio or          audio visual record of the evidence was taken at the direction or with the              approval of the court, in addition to a written transcript, the official record of         evidence includes the audio or audio visual record.
(3)    Before the court admits an official record into evidence in proceedings under         this section, the record must be edited—
(a)     as agreed between the parties to those proceedings so as to exclude                   material that is not relevant to those proceedings; and
(b)     so as to exclude evidence that is inadmissible in those proceedings for         any other reason.
(4)     If the court admits an official record into evidence under this section, it may          relieve the witness, wholly or in part, from an obligation to give evidence in            the later proceedings.
At the trial, the Director of Public Prosecutions (“the Director”) applied to have admitted the official record of the evidence of MCF taken in the previous trial. The Director sought an order that the Court relieve MCF wholly from an obligation to give evidence at the trial. The Director particularised the grounds for his application as being that MCF is a vulnerable witness and that her evidence in the previous trial was wholly relevant to the trial.
Counsel for the Director submitted that MCF was a vulnerable witness as she was 15 years of age at the time that the trial was due to proceed. He submitted there was an audio-visual recording available of her oral evidence from the previous trial, which evidence is an official record of her evidence. Further, he contended that the same counsel who had appeared for the appellant at the previous trial was counsel at the trial, that MCF had been cross-examined at length in the previous trial and that counsel had made forensic decisions in his cross-examination of MCF at the previous trial. He contended that any further cross‑examination would not elicit material of substantive probative value or material which would substantially reduce the credibility of MCF and the reliability of her evidence. Counsel for the Director advised the Judge that MCF was refusing to participate in the trial and did not wish to experience having to give evidence again.
At the trial, counsel for the appellant did not object to the playing of the whole of the evidence-in-chief and cross-examination of MCF from the previous trial. However, he opposed any order that would preclude him from cross‑examining MCF on further specified topics. He sought leave to cross-examine MCF on matters that had not been the subject of cross-examination at the previous trial, but upon which he now wished to cross-examine. He indicated that those matters related to lies told by MCF to the doctor in relation to her absence from home, the period over which the abuse took place and a number of prior inconsistent statements she had made that had not been put to her in cross-examination at the previous trial. There were further issues relating to MCF’s sister. Counsel submitted that he should be entitled to put matters to MCF which had not been the subject of cross‑examination at the previous trial.
Counsel submitted that the trial Judge should undertake an inquiry to ascertain the basis upon which MCF was refusing to give evidence. He sought a statement from the person to whom MCF had spoken about not giving evidence. He submitted that evidence was required providing detail of the reason for MCF not attending to give evidence. He submitted that until that statement was provided, the Judge should not grant the application.
The trial Judge gave short reasons for rejecting defence counsel’s submissions. He permitted the evidence of the audio-visual tape-recording to be admitted as MCF’s evidence. During the course of his reasons, the Judge observed:
There is no dispute that the object of the legislation is to prevent complainants in sexual cases who are vulnerable witnesses having to go through the experience of giving evidence again if they do not wish to do so. But, of course, it remains my duty to ensure that the accused receives a fair trial, albeit not a perfect trial. In exercising my discretion to admit the evidence and to relieve the complainant wholly from an obligation to give evidence, I have taken into account the matters which Mr Redford wishes to raise in further cross-examination. None of them is new in the sense that none of those matters is based on any information that was not available at the earlier trial. As far as I can tell, none of them is likely seriously to affect the complainant’s credibility further. She was cross‑examined at length on the previous trial. I have also taken into account that she is refusing to participate in the retrial at all. The “middle course” of allowing further cross‑examination on discrete matters is not available. In my view, the fact that the accused, through his counsel, will not be able to put some peripheral matters to the complainant on the retrial will not mean that that trial will not be a fair one. For those reasons, I decided to admit the record of the earlier proceedings and relieve the complainant wholly from any obligation to give evidence in these proceedings.
Discussion

Section 13D of the Act requires a judge to determine whether the witness whose evidence in a previous trial is sought to be used as evidence in the subsequent trial, has died or has become too ill or infirm or who has not, after diligent search, been found or, as in this case, is a vulnerable witness. Upon concluding that the witness is a vulnerable witness, and upon concluding that an official record exists, the court has a discretion to admit that official record into evidence in subsequent proceedings. “Official record” includes the record of the audio-visual link of the witness’s evidence given at an earlier trial. The court may relieve the witness, wholly or in part, from the obligation to give evidence in the later proceedings.
In considering the operation of s 13D, it is important to commence with the common law position that there is a fundamental right to test material which is to be used against an accused by cross‑examination. In R v Hodge, King CJ observed that it would be an affront to principles of natural justice upon which the legal procedures are based to deprive a defendant from the ability to cross‑examine witnesses at his trial. It is fundamental to a fair trial that a jury see and hear a witness in order to make an assessment of that witness’s evidence, it having been tested in cross-examination.
The legislature has enacted s 13D, amongst other provisions of the Act, which create in-roads into the fundamental right of a defendant to test evidence of witnesses for the prosecution at his or her trial. Section 13D provides, inter alia, that there are circumstances in respect of particular witnesses when the court can excuse that witness from the obligation to give evidence. The court has power to admit the witness’s evidence in an earlier trial to be used as evidence at the subsequent trial. Nevertheless, the discretion is to be exercised having regard to the fundamental rule that juries should be given the opportunity of seeing and hearing the witness’s evidence.
Before a judge exercises his or her discretion to permit evidence of an official record to be given at a trial, the judge must be satisfied that good reason exists, in the case of a vulnerable witness, to permit that witness’s evidence at a previous trial to be used as evidence at a subsequent trial. In order for the judge to exercise that discretion, evidence is required to support the application. Such evidence, in the case of a very young child, may be from a psychologist or psychiatrist or medical practitioner, or any other qualified person such as a social worker. That evidence ought to deal with the adverse effect that being examined and cross-examined may have on the child. It may be that, even in the case of a child of almost 16 years of age, as in this case, there is evidence supporting an application which concludes that the witness should not be required again to give evidence.
Although defence counsel sought further material to explain why MCF could not be called at the re-trial, no evidence was adduced. The Judge was simply informed by prosecuting counsel from the bar table that MCF was not prepared to give evidence again. No reason was provided and no explanation was provided. There was no evidence from the person to whom MCF had communicated her refusal to give evidence. The Judge acted upon counsel’s advice from the bar table, a course already opposed by defence counsel.
Counsel at the trial consented to the official record being tendered as MCF’s evidence, but only on the express condition that he would be permitted to ask MCF further questions, particulars of which he gave to the Judge.
The Solicitor-General, who appeared for the Crown on the appeal, conceded that there had been no disclosure about the circumstances in which MCF had indicated that she was not prepared to give evidence. He accepted that it would have been preferable if the prosecution had filed an affidavit in support of the application explaining why it was that MCF was refusing to give evidence at the trial.
In our view, not only would it have been preferable but it was necessary for the prosecution to support the application by sworn evidence, and to provide substituted reasons why the Court should exercise its discretion to admit the official record as evidence.
The Solicitor-General submitted that because counsel for the appellant had made the concession to which we have earlier referred, it was not necessary to support the application by evidence. As stated above, such a concession was only made conditionally upon MCF being made available to be cross-examined about matters not previously canvassed in cross-examination at the previous trial.
The trial Judge erred in not requiring evidence to be tendered in support of the application. Further, in our view, the discretion miscarried as the trial Judge was in error in concluding that the purpose of the section is to prevent complainants in sexual cases who are vulnerable witnesses having to go through the experience of giving evidence again if they do not wish to do so.
The Judge is required to consider the basis upon which the prosecution application is made. In our view, the Judge failed to, first, require evidence of the reasons for the application and, secondly, was in error in holding that the witness’s simple refusal to return to give evidence is a sufficient reason for excusing the witness from attendance to testify.
The appeal must be allowed on that ground alone.
Counsel for the prosecution at the trial advised the Judge that if the application were refused, then the prosecution could not proceed as the prosecution would not have sufficient evidence to support the prosecution case. In those circumstances, the appellant would have been entitled to an acquittal.
On the hearing of the appeal, the Solicitor-General was asked why there was no disclosure about the circumstances in which MCF had made the decision not to attend the trial to give evidence. After making enquiries, the Solicitor‑General informed the Court that the complainant had stated that she was not prepared to come to Court at all, even on the basis of giving evidence outside the courtroom, which we interpret to mean that she was not prepared to give evidence in person, by CCTV or video link. Her simple response, without further reason, was “I’m not coming”.
The Solicitor-General accepted that the concession had been made by the prosecution at the trial that if the Judge refused the application the prosecution could not proceed, as there would be no evidence to support the charge. When asked why this Court should allow the prosecution to re-visit the issue at a further trial, the Solicitor-General accepted that there is no material before this Court to support this course of action.
In our view, having regard to the Solicitor-General’s acceptance that there is no material before us to justify further consideration of the application, it is appropriate to consider the application on the material or, in this case, the lack of material before the trial Judge. The prosecution, having made a determination at the trial not to support the application by providing the Judge with evidence, and having conceded that if the Judge refused the application the prosecution must fail, should not now be permitted to re-visit the earlier decisions.
The question arises whether a re-trial should be ordered. There are various sets of circumstances in which appellate courts decline to order a re-trial.
In MRW,[1] one ground of appeal was that prosecuting counsel’s address had been inappropriate in that the prosecutor had asserted that the appellant and his daughter, who gave evidence, had agreed to present joint lies in evidence. The allegation was never put to the witnesses. On appeal, counsel for the Crown did not seek to defend the prosecutor’s address. Greg James J, with whom Beazley JA and Newman J agreed, described the address as indefensible. He considered that the address was so unfair that it resulted in the trial being fundamentally flawed. The Court determined that a new trial should not be ordered. Greg James J observed that, particularly because the Crown prosecutor’s conduct at trial lay at the foot of the miscarriage of justice, he was of the view that no new trial should be ordered.
[1] (1999) 113 A Crim R 308.
In Siebel & Waterman v The Queen,[2] relatively serious charges of assault occasioning actual bodily harm were involved and the case for the prosecution was considered to be strong. During his address, counsel for the prosecution commented on the failure of the accused to give evidence. He submitted to the jury that, in assessing the weight to be attached to the evidence of the various Crown witnesses, the jury could take into account the fact that that evidence was uncontradicted. The prosecutor said to the jury that a failure on the part of an accused to contradict or explain evidence led by the prosecution can lead the jury to more readily draw inferences that the accused were not acting in self‑defence, that being the issue in the trial.
[2] (1992) 57 SASR 558.
The Evidence Act 1929 (SA) prohibited any comment being made by the prosecution upon the failure of any person charged with an offence to give evidence. The prosecutor had infringed that statutory provision. Counsel for the Crown on the appeal did not contend otherwise.
King CJ, with whom Bollen and Prior JJ agreed, stated:[3]
The evidence in the case is quite strong enough to justify a new trial. There are, however, other considerations. Any new trial will occur almost three years after the incident in question. The matter has been a cloud over the heads of the accused persons for all that time. There were moreover strong indications at the trial that the lapse of time since the incident had affected the memory of crucial witnesses. The further lapse of time will intensify that problem. The delay has been due entirely to actions or omissions on the part of the authorities. There was considerable initial delay in pursuing the investigations. There was further delay in initiating the prosecution. The further delay as a result of the mistrial is the consequence of an error on the part of counsel for the prosecution. In these circumstances, I have reached the conclusion that the interests of justice would not be served by requiring the appellants to stand trial again.
[3] (1992) 57 SASR 558 at 564; see also R v Anderson (1991) 53 A Crim R 421 per Gleeson CJ.
It would be unfair to permit the Director to obtain a third trial in order to provide evidence in support of the s 13D application to a third trial Judge, which evidence should have been available to the Director at the time of the initial application, or at least on the appeal. In our view, this Court should consider s 13D, having regard to the material before the trial Judge. The application of the Director at trial should have been refused, as there was no evidence to support the s 13D application. That remains the position on this appeal since, accepting the prosecution position, the decision of MCF to refuse to give evidence was a final decision. There being no sustainable case against the appellant, he is entitled to an acquittal.
We would allow the appeal. We would set aside the conviction, decline to order a re-trial, and enter a verdict of acquittal.
Ground 2
The second ground of appeal is that the trial Judge failed to give any direction to the jury as to the permissible and impermissible use of SC’s evidence. SC gave evidence that he met the appellant through a Salvation Army youth group when the two were aged in their early 20s. He gave evidence that in February 2013 he had a conversation with the appellant. They discussed the topic of MCF having a Facebook page and the fact that the appellant was not comfortable with that situation. The appellant told SC that inappropriate things had happened to him when he was a young person, and that he had read a media report about a young girl who was offended against, or harmed in some way, via one of her Facebook pages. SC gave the following evidence:
QAnd did [the accused] say anything further about [M].
AYeah, he went – I guess he went on to say that he’d noticed that [M] was maturing and developing as a young girl and that he had some feelings and some thoughts about her, and was concerned that at some point he may not be able to contain or control those thoughts and feelings.
QWhen you said he said he had some feelings and thoughts towards her, did he expand on that.
AIt wasn’t detailed but it was said in the context of observing and noticing that she was developing as a young girl, and as were her friends.
QCan you recall exactly what he did say about his feelings.
AJust that they were toward her, and the thing that stood out the most to me is that he said that he was ‘scared of becoming a predator’.
When SC was asked whether he made a report about the conversation, he said he was of the opinion that what had been discussed was something that had not been acted on or carried out. He said some ten months later he made a report about the conversation when he heard that MCF had not returned home from school.
In cross-examination, SC confirmed that he had had a lengthy discussion with the appellant about the appellant having been sexually abused as a teenager. It was suggested to SC that it was in the context of the accused being concerned about him being over protective of MCF that the conversation had taken place.
The appellant gave the following evidence:
ASorry. I said something along the lines of ‘I’m concerned about [M] with the Facebook account. She knew that she wasn’t allowed to have it. Her mum set it up anyway.’ [SC] asked me wether I’d talked to her about it. I said ‘Yes, I’d talked to her about it’. He asked me along the lines of ‘How did that go?’. I explained to him that I had spoken to her some years ago there was an incident with a girl named Carly Ryan, this incident that I just spoke about with a girl in the UK, and that I was concerned for her safety, that predators like that are out there and they use social media to prey on young girls like her. He asked me more about why I felt like that and I told him ‘Well, as you know, I was abused when I was her age and I just don’t want things like that to happen to her’. In the course of the conversation, I do not recall exactly how, but the conversation evolved from that specific point to me talking about that abuse and I went on to tell him that even I was noticing things about my daughter and I’d seen at a recent birthday party actually that a much older male was following her around, every room she went into he would follow her around, and she was 12 years old. So I was noticing that other males were noticing her and I was noticing that I was noticing she was developing, and went on to say that I wondered, or I was concerned actually, whether that was a normal thing for a father, or whether that was me noticing something about her as a result of the abuse that I suffered at her age.
QDid you say anything about having any sexual attraction to her.
ANo.
QWas there any statement about being ‘that guy’.
AYes, my apologies. So that conversation I was talking about, when we were speaking, I was talking to him about me noticing that she was developing and she was developing much faster than I would have expected, I didn’t think I was ready for that, but I didn’t know if me noticing that was normal for a father, or if that was me noticing something because of what had happened to me, so I was talking to [SC] about that because I considered him one of my closest friends – I still do – and I felt that I could talk to him about whether that was normal or not and whether it was something I should be concerned about, or whether it might be a potential sign that one day I might become a predator because I was preyed upon, if that makes sense? He asked me if I’ve spoken to [B], my wife, and I said no, that I hadn’t, I didn’t want to concern her unnecessarily, but I was talking to him because I was – if memory serves, the words that I used were I was ‘scared shitless of becoming that guy’ and I’ve never wanted to be that guy.
In cross-examination, the appellant was asked:
QI want to suggest to you that the conversation you had with [SC] was you expressing sexual desires towards [M].
ANo.
QThat you expressed the gear that you would act upon those desires.
AI had no such desires.
QAnd that that expression of that fear coincided roughly with when your offending against [M] progressed to cunnilingus and the inserting of your fingers into her vagina.
AOnce again, that did not happen.
The trial Judge gave the following direction to the jury:
I turn now to the evidence of [SC]. [SC] is a good friend of the accused’s; [Mr C] was a groomsmen [sic] at the accused’s wedding. In February of 2013, [Mr C] and the accused were at Moonta tidying up after a birthday party for [Mr C’s] young son. The two of them got into conversation about [M] having a Facebook page and the accused and his wife not being comfortable about that. The fact that the accused had himself been sexually abused was mentioned and, later in the conversation, the accused told [Mr C] that he, the accused, had noticed that [M] was growing up and developing, that the accused had feelings of attraction and that he was afraid that he would not be able to control those thought or feelings and that he was “scared of becoming a predator”. He said that he was “scared shitless of becoming a predator”.
In cross-examination, [Mr C] agreed that he had this conversation with the accused during a difficult time in [Mr C’s] life. He was under pressure at work, he was looking after children while his wife was away living in Adelaide with newborn children, one of whom had health problems.
]Mr C] did not agree in cross-examination that he had misconstrued the conversation with the accused; that is, he did not agree that he had “got the wrong end of the stick”, if I can put it that way. It was not [Mr C’s] memory of the conversation that the accused gave the impression that he, the accused, was being overly protective towards [M]. [Mr C] said this and I quote his evidence: “[The accused] said that he was aware of feelings towards [M] and that he was scared that at some point he wouldn’t be able to contain or control those feelings and that he was scared shitless of becoming a predator.”
Those are [Mr C’s] words.
Counsel for the appellant submitted that the relevance of SC’s evidence was for the purpose of establishing sexual attraction. In the circumstance, it is submitted that the Judge failed to give a direction to the jury both as to the permissible and impermissible use that they could make of the evidence.
The evidence of SC is relevant as evidence of the accused’s state of mind. It is capable of supporting the evidence of the complainant that the accused, having formed and expressed his sexual attraction toward the complainant, then acted upon it.
On the assumption that the conversation with SC took place, it was necessary for the Judge to direct the jury how that evidence may be used. The jury should have been directed that, if they accept SC’s evidence, it was for the jury to decide whether AMB’s statements to SC were an expression of his sexual attraction towards MCF. If they concluded the statements had been made because the appellant was genuinely concerned about possible abuse of MCF by others and because of his experience with having been abused himself as a child, then they might not regard the conversation as any more than an expression of concern. On the other hand, if they concluded that he was expressing a personal sexual attraction towards MCF, then that expression could be treated as an admission that he might act upon his thoughts. It was for the jury to decide whether SC’s evidence supported the evidence of MCF. The Judge was required to give directions, not only as to the way the evidence could be used, but also that the jury must not reason that if they concluded that AMB did have a personal attraction towards MCF, it did not follow that he is, therefore, guilty of the charge.

The prosecution case, as stated by the prosecution at the trial, was:
It shows that the accused had a perverse and abnormal sexual attraction toward his own daughter and he was feeling guilty about it, so guilty that he needed to confide in his friend about these feelings he had towards his daughter and his concerns that he would act on those feelings and become a predator.
But this was more than just a perverse attraction he was feeling toward his daughter. You have heard the reliable and credible evidence of [M] that by early 2013, the accused had already given physical expression to that attraction, he had already been touching her breasts and vagina over and under her clothing. And you have heard that in early 2013, around the same time this conversation occurred, that the accused’s conduct became even worse in that he started licking his own daughter’s vagina and putting his fingers inside of her.
Even after the accused had expressed his concerns about his feelings towards his own daughter to this friend [SC], this did not deter him, deter his sexual conduct towards his daughter which escalated to even worse sexual acts which he perpetrated upon her until he was finally arrested.
It is clear from the prosecutor’s address that the purpose of leading the evidence was to establish that the appellant had a sexual attraction towards his daughter.
Counsel submitted that SC’s evidence was evidence of discreditable conduct and, therefore, s 34P of the Act applies. Section 34P(1) of the Act provides:
(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.
Section 34P is predicated upon there being prior discreditable conduct of the accused, whether or not constituting an offence. Conduct in the context of the section means behaviour. Behaviour requires a physical act. The statement by an accused to another of his thoughts or concerns cannot amount to conduct. It may amount to an admission. It may be a statement against interest from which inferences or conclusions can be drawn about past conduct or future conduct. It is not conduct which constitutes an offence or other improper conduct which might be considered discreditable conduct. For example, it would be discreditable conduct if a person walked around his home and exposed his erect penis to his daughter. If a person showed pornographic films to his young daughter, that would be discreditable conduct. However, evidence that an accused had expressed an intention or desire to have sexual relations with a young child is not evidence of discreditable conduct. It may be admissible as an admission or a statement of future intention from which it might be inferred that the accused did that which he is accused of doing. In considering evidence about an accused’s expression to another of his thoughts, the Court must, first, determine whether the evidence is relevant and probative. The Court must determine the purpose for which the prosecution require the evidence to be led. If the evidence is relevant and probative, the Court must determine whether to admit the evidence, having regard to the prejudicial effect and its probative value.
The Judge gave no directions to the jury. His failure to do so amounted to an error.
It is not necessary to deal with ground 3.
The appeal is allowed and the conviction is set aside. For the reasons we have expressed, we would not order a re-trial. The appellant is, therefore, entitled to a verdict of acquittal.

[2015] SASCFC 174

30 November 2015

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Sentencing

Statutory Construction