R v B, DWL; R v B, CG
[2019] SASCFC 101
•16 August 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, DWL; R v B, CG
[2019] SASCFC 101
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
16 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF GENERAL CONDUCT OF TRIAL
Appeals against conviction.
The applicants CB and DB were tried by a jury and jointly convicted of six counts of unlawful sexual intercourse with a person under 14 years of age. The applicants were domestic partners. CB is the complainant’s biological mother. They lived together with CB’s four biological children; the complainant, and her three younger half-siblings a boy, AB, and two girls.
During trial, AB was subpoenaed to give evidence for the prosecution case. His statements were inconsistent, at least in part, with the complainant’s evidence that her mother, CB, was present and jointly participated with DB in the offending. AB however applied for an exemption from the requirement to give evidence pursuant to section 21 of the Evidence Act 1929 (SA), which was granted by the Judge.
Appeal points CB: (1)(a) whether the granting of AB’s application pursuant to section 21 of the Evidence Act deprived CB of a fair trial, resulting in a miscarriage of justice; (1)(b) alternatively, whether the Judge erred in not granting CB’s application for a mistrial following the section 21 ruling; (2)(a) whether the Judge erred as a matter of law in admitting parental relationship evidence; (2)(b) whether the Judge erred in the exercise of her Honour’s discretion in admitting parental relationship evidence; (2)(c) alternatively, whether the Judge erred in refusing permission pursuant to section 34L of the Evidence Act to cross-examine the complainant regarding earlier claims that she had been sexually abused by various other persons.
Held per Nicholson J (Kelly and Hinton JJ agreeing) allowing CB’s appeal:
1. CB was not precluded by the terms of section 21 of the Evidence Act from calling and, if necessary, subpoenaing AB to give evidence in her defence case. In the unusual circumstances of this case, the failure of the defence to call AB caused a miscarriage of justice. CB’s appeal is allowed on this basis and a retrial for CB ordered with respect to all six counts.
2. The parental relationship evidence was admissible and was properly admitted by the Judge.
3. The trial Judge was correct to have refused permission to cross-examine on the content of the alleged other sexual complaints. The fact that there was no cross-examination as to the fact of making the complaints, simpliciter, did not give rise to a miscarriage of justice.
Appeal points DB: (1) whether the Judge erred in failing to re-direct the jury as requested by defence counsel on the issue of motive to lie after her Honour addressed the jury on this topic in summing up; (2) whether the Judge erred in failing to grant the defence application for a mistrial after a witness said spontaneously in the course of her evidence that the complainant “was a good kid”; (3) whether the Judge erred in failing to grant defence counsel permission pursuant to section 34L of the Evidence Act to raise with the complainant the multiple complaints she had made against others of a sexual nature.
Held per Nicholson J (Kelly and Hinton JJ agreeing) not yet determining DB’s appeal:
1. The argument concerning motive for the complainant to lie was not withdrawn from the jury and remained available for it to consider; the Judge did not err in her Honour’s refusal to re-direct the jury on this topic.
2. The evidence given that the complainant was “a good kid” did not give rise to a miscarriage of justice and was sufficiently inconsequential to render any direction from the Judge on the evidence unnecessary.
3 The trial Judge was correct to have refused permission to cross-examine on the content of the alleged other sexual complaints. The fact that there was no cross-examination as to the fact of making the complaints, simpliciter, did not give rise to a miscarriage of justice.
Given the Court’s findings with respect to CB’s section 21 ground, DB’s appeal is not to be determined until both he and the respondent have had an opportunity to consider these reasons. An opportunity is to be given to DB to file any additional ground of appeal, if so advised, and within which DB and the respondent are to file a written submission addressing any such additional ground.
Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Procedure Act 1921 (SA) s 157; Evidence Act 1929 (SA) s 21, s 34L, s 34P, s 34R, referred to.
R v MJJ; R v CJN (2013) 117 SASR 81; R v Smiles (2018) 131 SASR 553; R v Sparks (2014) 121 SASR 132, applied.
Crofts v The Queen (1996) 186 CLR 427; Nudd v The Queen (2006) 80 ALJR 614; TKWJ v The Queen (2002) 212 CLR 124, discussed.
Maric v The Queen (1978) 52 ALJR 631; R v ALJ (2000) 117 A Crim R 370, considered.
R v B, DWL; R v B, CG
[2019] SASCFC 101Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ
KELLY J: I agree with Nicholson J for the reasons he has given.
NICHOLSON J.
Introduction
The applicants CB and DB were jointly charged with six counts of unlawful sexual intercourse with a person under 14 years of age.[1] Following a trial by jury each was convicted of all six counts. The complainant was CB’s biological daughter who was 13 years of age at the time of the offending. The two applicants were domestic partners. They lived together with CB’s four biological children; the complainant and her three younger half-siblings a boy, AB, and two girls, MB and EB.
[1] Contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).
Each of CB’s and DB’s applications for permission to appeal against their convictions was refused on all grounds by a single Judge on 14 December 2018. Each applicant has exercised their statutory right to have their applications reconsidered by the Court of Criminal Appeal. DB requires an extension of time with respect to his application for reconsideration by this Court.
I would extend the time by which DB is to file his Form 51 seeking reconsideration to 5 February 2019 being the date on which it was filed and I would grant permission to both CB and DB to appeal. For the reasons that follow, I would allow CB’s appeal but refrain from finalising DB’s appeal pending receipt of further submissions from DB and the prosecution.
Grounds of appeal
CB filed a notice of appeal against her conviction on 25 October 2018. After permission to appeal had been refused by the Judge, CB filed amended grounds of appeal on 16 January 2019 to the following effect.
1.That the verdict of the jury should be set aside on the ground that there was a miscarriage of justice.
Particulars
(a)That the granting of the application on the part of AB to exempt him from giving evidence deprived CB of a fair trial.
(b)In the alternative, the Judge erred in not granting CB’s application for a mistrial following the ruling exempting AB from giving evidence.
2.That the verdict of the jury should be set aside on the ground of a wrong decision on a question of law or that there was a miscarriage of justice.
Particulars
(a)The Judge erred as a matter of law in admitting evidence regarding violence, neglectful parenting, lack of food and lack of support regarding schooling referred to in paragraph 2 of CB’s Rule 49 Application dated 14 September 2018.
(b)The Judge erred in the exercise of her discretion in admitting evidence referred to in paragraph 2 of the CB’s Rule 49 Application dated 14 September 2018.
(c)In the alternative, the Judge erred in refusing permission to cross-examine the complainant regarding her claims that she had been sexually abused by or had had sexual relations with a man, LR, a cousin, JP, and her step-father, SG, and had complained to various persons that she had been sexually abused.
The grounds of appeal for DB filed 24 October 2018 are to the following effect:
1.The Judge failed to re-direct the jury as requested by defence counsel on the issue of motive to lie after her Honour had erroneously addressed the jury on this topic during the summing up.
2.The Judge erred in failing to accede to the defence application for a mistrial after a Department for Child Protection witness said spontaneously in the course of her evidence that the complainant “was a good kid”.
3.The Judge erred in initially failing to grant defence counsel permission pursuant to section 34L of the Evidence Act 1929 (SA) to raise with the complainant the multiple complaints she had made against others of a sexual nature. This failure was exacerbated by the Judge’s later failure to grant permission when asked by defence counsel to revisit the ruling.
Both CB and DB complain that the Judge erred in refusing permission to cross examine the complainant on alleged sexual complaints she had made against others.[2] CB’s other grounds of appeal concern AB’s exemption from the requirement to give evidence[3] and the admission of evidence regarding violence and neglectful parenting.[4] DB’s other grounds of appeal are directed to the Judge’s failure to redirect the jury on the issue of the complainant’s motive to lie[5] and the Judge’s failure to grant a mistrial following the reception of opinion evidence from a witness from the Department for Child Protection[6] (formerly Families SA), said to have been prejudicial. These various complaints will be considered in turn below.
[2] CB ground 2(c) and DB ground 3.
[3] CB grounds 1(a) and (b).
[4] CB grounds 2(a) and (b).
[5] DB ground 1.
[6] DB ground 2.
Background
The complainant has had little or no real contact with her birth father. In her early years she lived with her mother, CB, and her mother’s then partner, SG. SG is the father of the complainant’s three younger half-siblings and is the complainant’s step-father. CB and SG separated in about 2012 and DB commenced living with CB and her children sometime after that. Each of the six charged counts of unlawful sexual intercourse was particularised as having occurred between the 1 November 2014 and 31 January 2015 at Salisbury North when the complainant was 13 years old. All of the offending was alleged to have taken place on two occasions. The actus reus for each offence was committed by either CB or DB. However, the prosecution case was that all of the offending conduct by each applicant was committed in the course of a joint criminal enterprise.
First occasion
The house at Salisbury North had three bedrooms. The two applicants shared a bedroom, the complainant had her own bedroom, the two younger half-sisters, MB and EB, shared a bedroom and the younger half-brother, AB, slept on a mattress in the living area or “lounge room”.
Counts 1, 2 and 3 all relate to the first occasion described by the complainant. The complainant gave evidence that this occasion occurred at the start of the school holidays at the end of 2014. The complainant’s mother, CB, asked her to go into her younger sisters’ bedroom. There was a double mattress on the floor of the bedroom.[7] CB asked her daughter to get undressed. She did so because she was scared CB might bash her. The complainant said that once she had undressed herself CB brought DB into the room. CB pushed the double mattress on the floor up against the door of the bedroom. CB undressed herself and lay on the left-hand side of the complainant on the mattress. DB positioned himself on the right-hand side of the complainant. At this point CB inserted her fingers into the complainant’s vagina and moved them in and out (count 1). CB was touching her own vagina and DB was touching his penis at this time. DB then inserted two fingers inside the complainant’s vagina and moved them in and out (count 2). CB then told DB “to get on top of” the complainant, and DB engaged in penile/vaginal intercourse with the complainant (count 3). The complainant knew DB had ejaculated because she could see and feel “warm, gooey stuff running down [her] legs”. The complainant said that they all showered afterwards and that she showered first.
[7] The complainant said that she had moved the mattress there from the lounge room when she was doing the house cleaning.
Last occasion (second occasion charged)
The complainant gave evidence that similar conduct occurred on approximately seven separate occasions across the school holidays. Counts 4, 5 and 6 all relate to the last occasion described by the complainant. This last occasion occurred in the night-time. The complainant’s mother, CB, came into the complainant’s bedroom and whispered to her that DB “can’t finish”. The complainant then followed CB into the bedroom occupied by CB and DB. A double mattress was again pushed up against the closed door. CB then directed the complainant to get undressed. CB inserted her fingers into the complainant’s vagina and moved them in and out whilst CB touched her own vagina and DB touched his penis (count 4). The complainant did not say anything because she was scared. DB then put his fingers in the complainant’s vagina and moved them in and out (count 5). CB then told DB to “get on top of” the complainant. DB did this and engaged in penile/vaginal intercourse with the complainant (count 6). The complainant described this last occasion as feeling “worser”, “harder” than on the first occasion. As to this last occasion, the complainant recalled bleeding from her vagina after DB had ejaculated and recalled seeing blood on DB’s penis. She experienced pain in her vagina for two days following this last occasion.
The complainant also gave evidence of neglect by her mother, CB, and of violence within the home. She described verbal and physical abuse towards her by CB and as to substandard living conditions in the home. Support for aspects of this latter evidence can be found in the evidence of two Department for Child Protection workers, TO and AR, called in the prosecution case.
DB did not give or call evidence; his defence was that the charged events as described did not take place. The complainant’s mother, CB, did give evidence. She maintained that the events described did not take place. Counsel for DB also asserted a motive on the part of the complainant to lie – it was submitted that she feared further abandonment by her mother, having been abandoned by her at an earlier time.
The Judge’s refusal to allow cross-examination concerning the making of complaints of sexual abuse (CB appeal ground 2(c) and DB appeal ground 3)
At the end of the complainant’s evidence in chief and before commencing cross-examination, counsel for CB and counsel for DB each applied, pursuant to subsection 34L(1)(b) of the Evidence Act, for permission to cross-examine the complainant on the topic of alleged complaints by her of sexual abuse by others. The Judge refused the applications. Section 34L is in these terms.
34L—Evidence in sexual cases generally
(1)In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted—
(a) as to the sexual reputation of the alleged victim of the offence; or
(b) except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2)In deciding whether permission should be granted under subsection (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a) is of substantial probative value; or
(b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
(3)Permission must not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
(4)An application for permission under subsection (1)(b) must be heard and determined in the absence of the jury (if any).
(5)In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
(6)Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated.
(7)In this section—
evidence includes an allegation or statement made by way of an unsworn statement;
sexual activities includes sexual experience or lack of sexual experience.
DB’s application
The alleged complaints, taken from the subpoenaed materials, on which counsel for DB addressed when arguing his application for permission to cross-examine the complainant were as follows.
(1)In Dr Hein’s medical notes of 12 February 2016 there is a record of the complainant disclosing that her mother “had sexually abused her when she was 3” and that her mum has “hated on me ever since”.
(2)A report prepared on 28 December 2016 by the Department for Child Protection recorded that “since being in care [a redacted name] has begun to disclose further abuse, including that possibly being perpetrated by associates of [SG]”.[8]
(3)A South Australian Police (SAPOL) email dated 2 February 2017 forming part of the Department for Child Protection records disclosed that the complainant had said that she had been raped by a man known as LR.[9]
(4)A Department for Child Protection case note made on 1 December 2015 records that the complainant had said that “about a year ago” she was “raped on several occasions” by “someone known to her”.[10] On 13 January 2016, a Department for Child Protection note records that SAPOL have information that the complainant was sexually assaulted in February 2015 by a “person known to her”.[11]
(5)According to a case note made on 13 January 2016 of a conversation between a Department for Child Protection social worker and the complainant’s carer,[12] the complainant had told her carer that she had been sexually abused by her mother’s partner, DB.
(6)According to a Department for Child Protection case note made on 12 February 2016, the complainant had disclosed to “Notifier 3” that she “has been sexually abused by [DB] since prior to her 12th birthday and that she was forced to have sex with him in front of her mother, repeatedly”.[13]
(7)Dr Hein’s medical notes of 12 February 2016 record a complaint that “cousins abused [the complainant] age 3-4”. In her statement given to police on 12 September 2018, the complainant said that she had been sexually abused between the ages of three and eight by a cousin known as JP.
[8] Department for Child Protection subpoenaed materials p 877.
[9] Department for Child Protection subpoenaed materials p 894.
[10] Department for Child Protection subpoenaed materials p 679.
[11] Department for Child Protection subpoenaed materials p 715.
[12] Department for Child Protection subpoenaed materials p 716.
[13] Department for Child Protection subpoenaed materials p 733.
CB’s application
Counsel for CB sought permission to cross-examine the complainant on complaint number (7) but also, in particular, with respect to the following paragraph in the complainant’s statement to the police dated 12 September 2018.[14]
Whilst I was living at my Nannas house in Esperance I was sexually abused by a cousin who I know as [JP]. This abuse happened the whole time that I was living with my Nanna. I was aged 3 years old when I moved in there and left when she passed aged 8. [JP] was living in and out of the house and whenever he was there he would abuse me. He was about 8 years older than me. I have memories of him making me suck his penis and he also tried to put his penis into my vagina and anus. He never penetrated my vagina or anus.
[14] Statement of the complainant, 12 September 2018, [23].
Counsel for CB also requested permission to cross-examine on the topic of the complainant having disclosed the alleged abuse by JP to her mother (complaint number (7A)). This conversation was said to have included an allegation by the complainant that JP had also abused his own sister and had abused the complainant in the sister’s presence. The sister was allegedly confronted by the complainant’s mother with this allegation but denied it.
Counsel for CB applied for permission to cross-examine on the topic of the complainant telling her mother of being sexually abused by her step-father, SG, and by her younger half-brother, AB (complaint number 8).
Consideration of CB appeal ground 2(c) and DB appeal ground 3
Section 34L modifies the common law.[15] Before granting permission to cross-examine under subsection 34L(1)(b), the Judge must be satisfied that the evidence in respect of which permission is sought is of substantive probative value; or would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim; and that its admission is required in the interests of justice.[16] The Judge must also give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in subsection 34L(1)(b).
[15] See generally, R v Sparks [2014] SASCFC 122; (2014) 121 SASR 132 at [46] (Vanstone J).
[16] R v Sparks [2014] SASCFC 122; (2014) 121 SASR 132 at [47] (Vanstone J, Parker J agreeing).
This Court has considered section 34L at some length in R v Sparks[17] and R v Smiles.[18] The following passages taken from the judgment of Vanstone J in Sparks sufficiently indicate the factual basis underpinning the application under section 34L in that case and her Honour’s approach.[19]
Determining an application to cross-examine in a given case involves an assessment of the potential relevance and probative force of the evidence, or its capacity to impact upon the alleged victim’s credibility. It is essentially a question of judgment about admissibility, to be considered in the framework set out by s 34L, which provides a threshold of admissibility pitched at a much more demanding level than at common law.
Before granting permission, the judge must be “satisfied” that either one of the criteria in s 34L(2)(a) or s 34L(2)(b) is met, and that the interests of justice require that the cross-examination be allowed.
Defence counsel was given permission to cross-examine the alleged victim on the basis of “at least some credible evidence” that he had been sexually abused by two other persons. This was allowed as it might explain both the abnormal clinical appearance of the complainant’s anus (as to which there was evidence) and an apparent knowledge of sexual matters which would not be expected at an early age.
However, permission was not given to cross-examine on an incident which was said to involve the complainant’s aunt, uncle and brother. There was material in the file to suggest that, during the period spanned by the information, the two boys reported that they were obliged by an aunt and uncle to watch the aunt and uncle having sexual intercourse, and then that the brother was told to have intercourse with his aunt. The judge was told this was relevant to show a disposition in the complainant to make false reports of sexual interference.
At the time of this alleged incident the complainant would have been about seven years of age. At the time of the trial he was 36 years of age. I am prepared to assume that a demonstrated disposition to concoct allegations of sexual interference could be of substantial probative value, or could materially impair confidence in a witness’s reliability. However, there was no evidence to refute the assertions in the file note that such an event occurred and this suggestion was not inherently unlikely. Moreover, the complainant’s age at the time and the time lapse between the allegation and the giving of evidence at trial, as well as the quite different nature of the suggested event, rendered the whole incident of, at best, marginal relevance.
Permission was also refused in relation to a large number of alleged incidents said to point to “highly sexualised behaviour” being exhibited by the complainant. For the most part these incidents occurred before or during the span of dates in the information. These were said to be relevant to show both an interest (although not an exclusive interest) in homosexual sex and also, such dysfunctional and disturbed behaviour by the complainant as to reflect on his reliability as a witness.
In my view this material, if admitted, could only have gone to the question of reliability. I agree with the judge that it was of very limited significance. If the complainant was indeed sexually abused by someone — as appears likely — then that would probably account for subsequent sexualised and dysfunctional behaviour. It is hard to see how the complainant’s acceptance or, conversely, denials of the various incidents would have affected the jury’s assessment of his reliability, let alone substantially. Whether the complainant had an interest in homosexual sex was not to the point. On the other hand, such cross-examination would very likely have been distressing to the complainant.
[17] [2014] SASCFC 122; (2014) 121 SASR 132.
[18] [2018] SASCFC 98; (2018) 131 SASR 553.
[19] Sparks at [48]-[54].
This Court’s decision in Smiles was delivered a day or so after the Judge delivered her ruling in the present case. It was drawn to the attention of the Judge shortly before the prosecution closed its case.[20] Her Honour took time to consider the authority of Smiles. The Judge reviewed the decision in Smiles and delivered a further ruling at a time part way through the cross-examination of CB. Her Honour refused DB’s application for the complainant to be recalled. In effect, the Judge affirmed her earlier ruling.
[20] The Judge’s ruling was delivered on Wednesday 19 September 2018 and Smiles was handed down on Thursday 20 September 2018. The case was drawn to her Honour’s attention on Monday 24 September 2018, following which, the prosecution read a number of agreed facts on to the transcript before the jury and closed its case.
In Smiles, the appellant had been convicted after trial by jury of one count of indecent assault and three counts of unlawful sexual intercourse. The appellant had been the complainant’s high school teacher. The complainant gave evidence in chief that after the appellant had kissed her she said “not you too?”. This prompted a discussion about other teachers the complainant alleged had sexually assaulted her during which, according to the complainant’s evidence, the appellant commented “I heard about this in the staff room and I wanted to know if it was true”.[21]
[21] Smiles at [9]-[10].
The prosecution had been given permission pursuant to section 34L to lead this evidence from the complainant without objection by the defence. The prosecution case in this respect was that there had been sexual offending by other teachers, that the appellant had heard about this in the staff room and, thus emboldened, had resolved to commit the sexual offences as charged.
During cross-examination of the complainant, defence counsel sought permission to cross-examine the complainant on the conversation. Counsel submitted that the complainant’s evidence concerning what she told the appellant about others was “so broad and extensive as to beggar belief”. Counsel also wished to put to the complainant that the appellant had never said anything about hearing of such matters in the staff room.[22]
[22] Smiles at [24].
The prosecution opposed the application. The Judge refused permission to cross-examine on this topic on the basis that, if the application were to be allowed, the jury would be faced with determining collateral questions.[23]
[23] Smiles at [24].
Kelly J, with whom Kourakis CJ and Hughes J agreed, held that the appellant should have been permitted to cross-examine. It is necessary to set out her Honour’s reasoning in full.[24]
[24] Smiles at [27]-[35].
On a proper construction of s 34L, once permission is granted to a party to lead evidence which is substantially probative then the opposing party may cross-examine on it. The cross-examination on such subject matter will necessarily also elicit evidential material which is substantially probative.
Here the complainant herself testified that what she told the appellant was “what had happened”. It is because the complainant’s evidence was led, not only as a conversation which took place during the offending, but also as to its occurrence in fact that the prosecution was required to seek the permission of the Court to lead it pursuant to s 34L of the Evidence Act 1929 (SA).
The legislative purpose of s 34L in prohibiting questions, as well as evidence, is to ensure that its purpose is not undermined by counsel asking questions about and putting allegations of previous sexual conduct, even though the witness will not be required to answer them. Here, whether or not the other offending had occurred affected both the likelihood that the complainant would complain about it to the appellant and the likelihood that the appellant had heard of it quite independently of the complainant. If the jury accepted that the offending by the other teachers had actually occurred, the jury might then more readily accept that the complainant did tell the appellant about it after he attempted to kiss her, that the appellant had heard of it earlier and that he did respond to it in the way the complainant alleged.
The complainant gave detailed evidence about the previous abuse she had allegedly suffered, including the identity of the perpetrators and the circumstances which were said to have constituted the abuse. Her disclosures on the prosecution case took place over a number of minutes, perhaps up to seven minutes.
In my view, the judge’s concerns that to have permitted cross-examination on the topic would have offended the finality rule as to collateral evidence were misplaced.
The appellant was not seeking to call any evidence from the other alleged abusers but simply to raise a question as to the complainant’s truthfulness and reliability. That did not require the jury to determine, beyond reasonable doubt or to any standard of proof, whether the earlier allegations were true. All the jury would have to consider, had cross-examination been permitted, was whether the cross-examination raised any issue relevant to the complainant’s credit and reliability such that it ought to have been factored into its assessment of whether the prosecution had in fact proved its case beyond reasonable doubt.
The importance of cross-examination as a component in an adversarial system of justice has been repeatedly emphasised. In the absence of clear language, Parliament should not be taken to have intended to deny an accused person the right to test the evidence adduced against him or her by cross-examination. Section 34L therefore should not be construed in such a way as to require an opposing party to establish that its questions in cross-examination are likely to substantially add to, or undermine, the probative value of the evidence. Importantly, s 25 of the Evidence Act 1929 (SA) empowers the Court to disallow vexatious and inappropriate questions if the right to cross-examine is abused.
The purpose of s 34L(2)(b) is to allow, with leave, questions to be asked, or evidence to be adduced, which materially affects the credit of an alleged victim, even if the subject matter is not probative of a fact in issue. Again, if an accused is given permission to cross-examine a witness in that way, the prosecutor would not need the permission of the judge to re-examine on the subject matter in order to re-establish the complainant’s credit. Similarly if in an exceptional case collateral evidence undermining a witness’ credibility is allowed, the prosecutor could, without needing leave, cross-examine the witness from whom that evidence is adduced.
For these reasons it was an error not to permit the appellant’s counsel to cross-examine the complainant on whether the other teachers had sexually assaulted her or not. I consider that the error has led to the appellant being deprived of a legitimate forensic tool available to him to meet the charges. This was a particularly important right denied him in the context of this case, where the prosecution case was wholly based on the evidence of the complainant. In these circumstances, the appellant was denied the opportunity to fully cross-examine her with a view to exposing her as an untruthful and unreliable witness. In these circumstances I consider that the appellant was denied a fair trial and I would allow the appeal on this ground alone.
(footnote in the original omitted)
The Judge’s reasons for refusing the applications in the present case can be found in the transcript of the argument before her Honour and in the settled ruling delivered by her Honour on 19 September 2018. The applicants’ submissions before the Judge were essentially replicated before this Court on appeal. In general terms, it was contended as follows.
(i)That the making of the complaints (if established by the complainant’s evidence that she did in fact make them) would be probative of the fact that the complainant was a person accustomed to making complaints of a sexual nature.
(ii)That the cross-examination would seek to demonstrate that the various complaints were false allegations made to suit the complainant’s purposes and that she was a manipulative person in this respect.
(iii)That the complainant was either a very unfortunate person or accustomed to lying.
(iv)In the alternative, if the complaints made were true, such would be probative of and serve to explain how the complainant knew of sexual matters sufficient to be able to give the descriptions she gave in connection with her allegations against the applicants.
As the argument proceeded with respect to the individual complaints referred to by the applicants (as set out earlier), additional matters bearing on probative value were raised. At the outset it should be noted that the present case is very different from that which was before the court in Smiles. The fundamental issue in Smiles concerned the fact that the prosecution had led evidence from the complainant that fell within the constraints imposed by section 34L as part of its case. The prosecution having introduced the topic of prior sexual conduct involving the complainant and having adduced evidence of that prior sexual conduct in quite some detail, the case for permitting cross-examination on that material was very strong, if not unassailable for the reasons given by Kelly J. The present case is not one where evidence of previous sexual conduct involving the complainant had been adduced in the prosecution case against the applicants. I turn now to consider each of the complaints of sexual abuse alleged to have been made by the complainant about which the applicants sought permission to cross-examine.
Complaint number (1)
Counsel for DB contended that the terms of this complaint allegedly made by the complainant demonstrated an inconsistency with the evidence given by the complainant in examination in chief as to the “first occasion” when she experienced sexual abuse by her mother. As such, positive evidence adduced from the complainant of this complaint having been made would be likely materially to impair confidence in the reliability of the evidence of the complainant.[25] The Judge was not persuaded that there was any such inconsistency on the basis that the complainant “had been directed in this case to refer just to the allegations that are before the Court”. Her Honour in her ruling further reasoned that even if there were an inconsistency it was “negligible” and ruled as follows.
In my view, any inconsistency is not of substantial probative value, nor, in the circumstances, would it be likely to materially impair confidence in the reliability of the evidence of the complaint. I therefore do not allow cross-examination on that topic.
In my view, the Judge’s analysis was correct.
[25] Paragraph (b) of subsection 34L(2).
The reference in the complainant’s evidence in chief to a “first occasion” occurred as part of a question asked by prosecuting counsel to which the complainant responded. The response, when considered in context, was not an acknowledgement that this was the first act of sexual abuse by her mother that ever took place. The relevant exchange was as follows.
QYou said your mother would be violent towards you sometimes. Did she ever touch you in other ways.
AYes.
QIn what ways were those.
ASexually.
QDid that happen on one occasion or more than one occasion.
AMore than one.
QWhen did the first occasion occur.
AIn 2014 in Salisbury Downs when we were in … .
QWhat happened on that occasion.
AMy mother - like how did it happen?
QYes.
[Thereafter the complainant went on to describe the first particularised occasion; counts 1, 2 and 3].
The Judge and the jury had the benefit of having heard the conduct of the trial to this point, including the prosecution opening and the introductory evidence given by the complainant leading to this first critical topic. As I understand the Judge’s reasoning, it was to the effect that the complainant was not responding to, that is, directly adopting the prosecutor’s assertion of a “first occasion” of sexual touching or abuse. Rather, the prosecutor had used a “signpost” which the complainant recognised as directing her to the first occasion with respect to which she was expecting to give evidence concerning the particularised charges. I agree with the Judge’s conclusions concerning complaint number (1).
Complaint number (2)
In respect of complaint number (2), the Judge found that there was a paucity of information concerning this issue and no evidence to suggest that the complainant might have made it up. During argument, counsel for DB acknowledged that she did not have any more information about the matter. This is sufficient to justify the Judge’s refusal to permit cross-examination on this topic.[26]
[26] Cf; Vanstone J in R v Sparks [2014] SASCFC 122; (2014) 121 SASR 132 at [52].
However, there is a more fundamental difficulty with complaint number (2). When the case note at page 877 of the Department for Child Protection’s subpoenaed materials is examined in context it is apparent that the entry relied on by counsel for DB does not refer to the complainant but to someone else. When the whole of the case note is reviewed it can be seen that the complainant’s name is not redacted but the names of other people are. After particular observations concerning the complainant are made at page 875 to 876 under the heading of the complainant’s actual name, various other entries follow. In these entries the heading which, by inference, is the name of the person being referred to is redacted and the name of that person continues to be redacted throughout the content of the note insofar as it refers to that person. Thus on page 877, there is a heading comprised of an empty box indicative of a name having been redacted and thereafter every time one would expect a name to appear in the narrative there is an empty box, again indicative of that name having been redacted. Thus the “complaint” relied upon by counsel for DB is in these terms.
. . . .
Since being in care has begun to disclose further abuse, including that possibly being perpetrated by associates of Mr Gibson.
I have no doubt that the reference here is to some person other than the complainant.
The Judge was fully justified in finding that neither of the preconditions in subsection 34L(2)(a) and (b) were satisfied with respect to complaint number (2).
Complaint number (3)
On 10 August 2018, LR pleaded guilty to the offence of unlawful sexual intercourse with a child under 14 in relation to offending against the complainant.[27] For this reason, during argument before the Judge, counsel for DB did not press the point. And rightly so.
Complaint number (4)
[27] However, the plea was not accepted by the prosecution and LR is proceeding to trial on the charge of rape.
As earlier set out, complaint number (4) was in the following terms.
The Department for Child Protection case note made on 1 December 2015 records that the complainant had said that “about a year ago” she was “raped on several occasions” by “someone known to her”. On 13 January 2016, a Department for Child Protection note records that SAPOL had information that the complainant was sexually assaulted in February 2015 by a “person known to her”.
It would seem that the two notes refer to the same incident. The Judge rejected counsel’s submission that, because of the time frame, this must be a reference to someone other than the accused. Her Honour described the allegation in its terms to be “vague” and noted that the allegations against the applicants were, in fact, particularised as occurring in the period November 2014 to January 2015, which is broadly in line with those referred to in the complaint. I agree with the Judge that there is no basis to think that these notations were referable to anything other than or separate from the charged offending. As such, they would not fall within the section 34L proscription.
Complaint number (5)
During argument, the Judge indicated to counsel for DB that this complaint of having been sexually abused by her mother’s partner, DB, did not fall within the section 34L proscription and counsel accepted this.
Complaint number (6)
This complaint is entirely consistent with the charged acts as alleged apart from the fact that the complainant allegedly said in the recorded complaint that she had been sexually abused by DB “since prior to her 12th birthday”. This was said to be inconsistent because during the particularised dates of the charged offending the complainant was 13 years of age. The Judge in her ruling did not specifically address this contention other than through her general conclusion in these terms.
Looking at the totality of the topics, it is my view that they do not show that she is inclined to make allegations of sexual abuse when it suits her, nor that she is inclined to make up allegations of sexual abuse at all.
Consequently, I do not think any of them singularly or in combination are of substantial probative value or in the circumstances likely to materially impair confidence in the reliability of the evidence of the complainant.
Insofar as complaint number (6) is concerned, I agree with the Judge that neither of the criteria in subsection 34L(2)(a) and (b) has been satisfied. The mere fact that the complainant has been recorded as having referred to “prior to her 12th birthday” when her evidence at trial was directed to the particularised time frame during which she was 13 years of age, is not such as would, in all the circumstances, be likely materially to impair confidence in the reliability of her evidence.
Further, the person to whom this complaint was made (“Notifier 3”) would appear to have been Dr Hein. There is an entry in Dr Hein’s notes, also dated 12 February 2016 (the Department for Child Protection case note was made on that day at 3.28pm) in the terms “sexual abuse started at age 12 (for 2 ½ years)”. Counsel for DB cross-examined the complainant on this statement said to have been made to Dr Hein and the fact that it was inconsistent with her earlier evidence. An agreed fact was put before the jury in these terms.
On 12 February 2016 [the complainant] was admitted to the Women’s and Children’s hospital. She told Dr Hein, a psychiatrist, that she was “sexually abused by her mother and her mother’s partner for a period of two and a half years from the age of 12”.
As such, the inconsistency relied upon by the applicant was before the jury, even if not by reference to the Department for Child Protection case note. Indeed, the complainant was extensively cross-examined on a number of aspects of what she is said to have told Dr Hein, as recorded in Dr Hein’s notes, concerning the sexual abuse perpetrated on her by DB. A number of potentially significant inconsistencies were put before the jury for this consideration, together with the complainant’s responses.
Complaint number (7)
This referred to incidents of alleged abuse by the complainant’s cousins including JP and starting when the complainant was aged 3 and living in Esperance, Western Australia. The Judge in her ruling found there was no suggestion that the complainant had made up allegations of abuse against her cousin when she was aged three and older. I would add that this matter, like all of the other complaints, is one where there is no evidence available to the Court which might serve to refute such an allegation and the allegation itself is not one that can be described as inherently unlikely.[28] Further, the complainant was very young at the time of the alleged incident or incidents at Esperance, there had been a significant lapse of time between the occurrence of those events and the giving of evidence in the trial, and the events alleged to have occurred at Esperance are of a quite different nature. As such, the various considerations that persuaded Vanstone J in Sparks to the view that permission to cross-examine had been correctly refused would appear to have application here. Again, I am satisfied that the Judge came to the correct conclusion with respect to complaint number (7).
Complaint number (7A)
[28] Cf; Vanstone J in R v Sparks [2014] SASCFC 122; (2014) 121 SASR 132 at [52].
Counsel for CB wished to cross-examine about complaint number (7) and also, specifically, on the topic of the complainant having disclosed the alleged abuse by JP to her mother (in the terms which have been set out earlier). Counsel for CB wished to cross-examine on this topic in order to demonstrate that the complainant was inclined to make up allegations of sexual abuse. He told the Judge that he had instructions from his client that his client had spoken with JP’s sister who had denied the allegations. Even if CB were to give evidence, she would not be permitted to have given evidence of this hearsay nature. Again, I agree with the Judge in her finding that the evidence “in the form that it is suggested” would not have substantial probative value nor would it be likely to materially impair confidence in the reliability of the evidence of the complainant. There is nothing before the Court that would suggest that the complainant had made up these allegations and had deliberately lied.
Complaint number (8)
Counsel for CB was unable to give any details concerning these allegations or as to when they were said to have been made. Again, it was argued that the probative value of such evidence (if adduced) was that the complainant is inclined to make up allegations of sexual abuse. However, there was nothing in the available evidence that would lend any support to such a contention. The Judge ruled that the proposed cross-examination on this topic did not have substantial probative value, nor would it, in the circumstances, be likely to materially impair confidence in the reliability of the evidence of the complainant. Again, I agree with the position adopted by the Judge.
Counsel for CB had no evidence or other basis upon which he wanted to or could contend that the allegations (if affirmed by the complainant) were not true. As such, all that could be adduced from the complainant was whether she had made the allegations as recorded and, if so, whether they were true. There is nothing before the Court to suggest that the complainant would not affirm both propositions.
Counsel for CB appeared to contend that complaint number (8) did not fall within the section 34L proscription because he did not wish to cross-examine on the underlying allegations; only on the fact that a complaint against the step-father, SG, and the complainant’s younger brother, AB, had been made. It is correct, that section 34L does not prohibit cross-examination on the question of whether, as a matter of fact, a complaint about sexual abuse has been made but only prohibits evidence being adduced as to sexual reputation or (other than with the permission of the Judge) as to a complainant’s sexual activities apart from recent sexual activities with the accused. Whilst it was not clearly articulated, as I apprehend the primary submission put on behalf of CB, he wished to cross-examine as to the fact of complaints being made in order to demonstrate that the complainant was not averse to making complaints about sexual abuse.
The probative value of the mere fact of having complained was said to be by way of antidote to the prosecution contention that, because of the nature of the relationship between the complainant and her mother, CB, as demonstrated (on the Crown case) by the discreditable conduct evidence it wished to adduce, the complainant went along with the alleged sexual abuse by the applicants and did not resist or complain because she was fearful of and intimidated by her mother. This, as I understand it, is the crux of CB’s appeal ground 2(c), pleaded in the alternative to appeal grounds 2(a) and 2(b) which complain about the Judge’s decision to allow the discreditable conduct evidence.
The short answer to this contention, in my view, is that the mere making of such complaints would have had only very limited, if any, probative value in this connection. To have limited the cross-examination of the complainant simply to the fact that any of the complaints from (1) to (8) had been made would not be a matter that required permission under section 34L when regard is had to the terms of paragraphs (a) and (b) of subsection 34L.[29] However, unless the detail of the complaints were explored in the evidence of the complainant with a view to demonstrating the falsity of any such complaint, the evidence adduced of the fact of the complaint or complaints, simpliciter, would have had minimal probative value with respect to the issues in this case.
[29] See Lander J in R v ALJ [2000] SASC 357 at [95]-[104] (with whose reasons Prior J agreed, Debelle J dissenting, at [20]-[22]) and King CJ in R v Ugolini (1989) 51 SASR 303 at 307-308. R v ALJ and R v Ugolini both concerned section 34I earlier in force and which was in materially the same terms as section 34L with respect to this issue. See also, R v Smiles [2018] SASCFC 98; (2018) 131 SASR 553 at [28].
The fact that cross-examination raising the mere fact of the complaints does not require permission under section 34L was not clearly raised before the Judge except with respect to complaint number (8). As far as complaint number (8) is concerned, this was expressly limited in the way just identified and arguably should not have been dealt with as part of the section 34L ruling. Nevertheless, to the extent that either counsel saw themselves as precluded from raising the fact of any complaints, simpliciter, as a result of the section 34L ruling, I am not satisfied that a miscarriage of justice has occurred. The mere fact that some of these complaints may have been made by the complainant when considered in the context of the issues raised in the trial as a whole would have had very limited, if any, probative value.
To adapt the language of Kelly J in Smiles,[30] I do not consider that the failure by the applicants to cross-examine the complainant on any of the complaints number (1) to (8), as to the mere fact they were made or as to their content including the conduct of the complainant, has deprived either applicant of a legitimate forensic tool available to meet the charges. I would dismiss CB’s ground of appeal 2(c) and DB’s ground of appeal 3.
[30] R v Smiles [2018] SASCFC 98; (2018) 131 SASR 553 at [35].
CB grounds of appeal 1(a) and 1(b) – the exemption of AB from giving evidence
AB is the biological son of CB and the complainant’s younger half-brother. He had been subpoenaed to give evidence in the prosecution case. However, during the trial, the Judge allowed an application, brought by AB pursuant to section 21 of the Evidence Act, to be exempted from the requirement to give evidence. CB contends on appeal that, as a result, CB was deprived of a fair trial leading to a miscarriage of justice. In the alternative, CB contends that the Judge erred in not granting her application for a mistrial made following the adverse ruling thus giving rise to a miscarriage of justice.
AB provided a statement to police on 9 April 2016[31] which contained the following.
Whilst living with mum and [the complainant], I remember one occasion when [DB] gave me a bud to go out into the lounge room and smoke. I went into the lounge room and smoked the bud through a bong. I remember that this left [the complainant], Mum and [DB] in the house by themselves. When I went back inside I remember that I tried to go into the girl’s [sic] bedroom but I was unable to open the door. I thought that the bed was up against the door. The bed is not normally up against the door but I just couldn’t open the door. I am pretty sure that [DB] and [the complainant] were in the room and that Mum was in the shower. The two other girls were out the back with me when I was smoking the bud. I then went and watched TV for a while and my mate then came and picked me up and we went to the skate park … .
[31] The statement was signed by AB on 11 April 2019.
A second statement given by AB on 14 September 2018 contained the following.
In my first statement, I talked about [DB] giving me a bud to smoke and then when I went back inside I could not get into the girls bedroom. It was like the bed was against the door stopping me from opening it. Before I went outside [the complainant], Mum and [DB] were inside. I was able to see Mum in the bathroom when I came back inside after smoking the bud but I looked around the house and could not see [DB] or [the complainant]. [MB] and [EB] were out the back, so I guessed that [the complainant] and [DB] were in the room together as it was the only one that I could not search for her.
This evidence, if given by AB, appeared to be inconsistent, at least in part, with the complainant’s account that her mother, CB, was present and jointly participated with DB in the first occasion offending.
Early in the morning of the fourth day of trial and whilst the prosecution was still presenting its case but after the evidence of the complainant had been completed, the prosecutor advised the Court that AB was no longer prepared to give evidence. Counsel for DB was not at all troubled by this turn of events and perhaps saw it as fortuitous from her client’s perspective. However, whilst the prosecution had not opened on calling AB, he was listed on the Information as a prosecution witness and counsel for CB had cross-examined the complainant on the basis of AB’s statement with a view to exposing inconsistencies were AB to give evidence (assuming he came up to proof).
The Judge explained to AB the nature of an application under section 21 and facilitated AB obtaining independent legal advice. Her Honour then proceeded with the balance of the prosecution case. A weekend intervened following which AB returned to the court after having obtained legal advice. He made an oral application for exemption. The Judge examined him with a view to determining whether or not the requirements of section 21 might be satisfied. At the end of the Judge’s examination of AB, counsel were asked if there were any other issues to be raised and all indicated that there were none. The Judge then heard submissions from all counsel before delivering her ex tempore ruling granting the application.
Section 21 relevantly provides as follows:
21—Competence and compellability of witnesses
(1)A close relative of a person charged with an offence is competent and compellable to give evidence for the defence and, subject to this section, is competent and compellable to give evidence for the prosecution.
(2)If a person is charged with an offence and a close relative of the accused is required by law (whether by subpoena or other process) to give evidence against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken), the prospective witness may apply to the court for an exemption from the requirement to give evidence against the accused in the proceedings.
(3)If, on an application under subsection (2), the court considers that—
(a) if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b) having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness (wholly or in part) from the requirement to give evidence against the accused in the proceedings before the court.
(4)…
(5)…
(6)…
(7)A decision or order of a court made under this section, or the failure of a court to make an inquiry under subsection (5), does not give rise to a ground of appeal under section 157(1)(a)(i) or (ii) of the Criminal Procedure Act 1921.
(8)This section does not operate to make a person who has been charged with an offence compellable to give evidence in proceedings related to that charge.
(9)In this section—
close relative of an accused person means a spouse, domestic partner, parent or child.
A number of collateral issues concerning the proper construction and application of section 21 were canvassed during the argument on appeal. For example, counsel for CB contended that section 21 had not been properly engaged because on, his analysis, the evidence expected from AB was not to be characterised as “evidence against the accused [CB]”. As such, the precondition to an entitlement to make an application, found in the opening words of subsection 21(2), had not been satisfied. Counsel also contended that for various reasons the Judge, in any event, erred in allowing the application. In my view, it is unnecessary to come to a final conclusion with respect to the latter contention. However, the former will need to be further considered in another context later in these reasons.
In this case, AB was a “close relative” of CB and, subject to section 21, was competent and compellable to give evidence for the prosecution. AB had been subpoenaed by the prosecution to give evidence and subject to section 21 was required to give evidence. He applied under section 21 and was exempted from the requirement to give evidence.
Subsection 21(7) restricts a convicted person’s right to appeal against a conviction otherwise provided for under subsection 157(1)(a)(i) and (ii) of the Criminal Procedure Act 1921 (SA) which is in these terms.
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
Subsection 21(7) provides as follows.
A decision or order of a court made under this section, or the failure of a court to make an inquiry under subsection (5), does not give rise to a ground of appeal under section 157(1)(a)(i) or (ii) of the Criminal Procedure Act 1921.
The respondent contends that CB’s appeal grounds 1(a) and 1(b) infringe this prohibition and that these grounds should be dismissed in limine. On one view, the appeal grounds accept the fact of the decision to exempt (rightly or wrongly arrived at) but assert that, nevertheless, a miscarriage of justice has eventuated. On appeal, the Court is faced with the position that AB did not give evidence for the prosecution and the Judge did not accede to CB’s application for a mistrial. As such, it might be argued that the question before the Court has become not whether the Judge erred in either respect but whether or not the continuation of the trial to verdict in these circumstances resulted in a miscarriage of justice. If this situation had arisen solely because of the Judge’s granting of the section 21 exemption, the proscription in subsection 21(7) might still apply. This would turn on the proper construction to be given to the phrase “does not give rise to a ground of appeal …”.
CB’s appeal grounds 1(a) and 1(b) are not in a form that expressly challenges the correctness of the Judge’s decision to grant the exemption. Nevertheless, it is arguable that on the proper construction of subsection 21(7) the giving of consideration to these grounds would result in a situation where the decision or order of the Judge has given rise to a ground of appeal under subsection 157(1)(a)(ii) of the Criminal Law Procedure Act and contrary to subsection 21(7).
However, it is not necessary that this construction issue be finally determined in this matter. For reasons that will be explained, I am of the view that AB could have been subpoenaed (if necessary) and called in the defence case for CB. For reasons to be canvassed, this did not occur. If there has been a miscarriage of justice caused by the absence of evidence from AB it arises from decisions made or not made by counsel for CB and not solely as a consequence of the Judge’s decision to exempt AB from giving evidence in the prosecution case.
I turn then to consider the question of whether AB was available to be called by CB notwithstanding that he was not available to be called by the prosecution.
A consideration of the statutory language in subsections 21(1), (2) and (3) suggests that the power of exemption from a requirement to give evidence does not enure to a close relative of an accused who is to be called in that accused’s defence case.
Subsection (1) states without qualification that a close relative (as defined) is competent and compellable to give evidence for the defence. However, the balance of the subsection, which declares that such a person is competent and compellable to give evidence for the prosecution, is qualified by the phrase “subject to this section”. Immediately, a distinction has been drawn between a close relative of a person charged with an offence who is competent and compellable to give evidence for the defence, without qualification, and a close relative of a person charged with an offence who is competent and compellable to give evidence for the prosecution save as qualified by the terms of (that is, subject to) section 21.
Subsection 21(2) then makes provision for a close relative to apply for the exemption available in accordance with the parameters set out in subsection 21(3). However, the right to apply in subsection 21(2) and the power to exempt in subsection 21(3) are expressly confined to a close relative who is required (whether by subpoena or other process) to give evidence against the accused. This language reinforces the primary distinction drawn in subsection 21(1) between a close relative being competent and compellable to give evidence for the defence which is unqualified and a close relative being competent and compellable to give evidence for the prosecution but only as qualified.
During the appeal, the Court heard argument from counsel for CB to the effect that AB, whilst he was to be called by the prosecution, would in fact give evidence favourable to the defence of CB, such that he was not to be characterised as required to give evidence against the accused. According to counsel for CB, section 21 was, for this reason, not engaged at all.
With respect, this argument is misconceived. It often will be the case that a prosecution witness will give evidence, some of which is inculpatory and some of which is exculpatory of an accused. Counsel for CB conceded that AB’s evidence might be seen as falling within this mixed category. It would be quite impractical and unworkable if the application of the limitation in subsections 21(2) and (3) required this type of analysis to be undertaken in advance of hearing the evidence both in chief and in cross-examination or at all. Furthermore, a real issue, and often a most important concern, for a close relative subpoenaed to give evidence will be one of perception. Whose side am I being required to support? Am I coming to court as part of a criminal case brought against, for example, my own parent or in support of the defence to a criminal case brought against, for example, my own parent?
In my view, the qualifying expression “is required … to give evidence against the accused” is directed at a close relative of the person charged (the accused) who is to be called as a witness in a case brought against that accused. Typically, a witness with the right to make an application for exemption will be a close relative of an accused to be called in the prosecution case (as in this matter) and whether or not (to the extent ascertainable) the evidence to be given is inculpatory, exculpatory or a combination of both. In cases where the evidence is wholly or substantially exculpatory an application under section 21 is unlikely to be made or, if made, such is likely to be a powerful factor bearing on the considerations in subsection 21(3)(a) and tending against allowing the application.
I have said that an application under section 21 typically will arise with respect to a prosecution witness. However, there are other possibilities. For example, in a joint trial of two or more co-accuseds, one co-accused might be pursuing a so called “cut throat” defence against another co-accused and wish to call a close relative of that other in order to inculpate that other as a plank in the former’s defence to the prosecution case. I have not formed a concluded view as to whether, in such a case, the close relative would have the right to seek exemption under section 21, nor is it necessary to do so.
I am satisfied, sufficient for present purposes, that even though AB obtained an exemption under section 21 from being called in the prosecution case against his mother, CB, she was not precluded by the terms of section 21 from calling AB in her defence case and from compelling his attendance by subpoena if necessary. In such circumstances, AB would not be a close relative “required … to give evidence against the accused, [CB]” so as to enliven a right to make an application under subsection 21(2) to be exempted.
Following the Judge’s decision to exempt AB, counsel for CB made no attempt to call AB in CB’s case. AB was in youth detention at the time such that a gaol order to secure his attendance had been required. Further, as soon as the Judge had made her section 21 ruling, AB left the court and returned to detention. Counsel was of the view, in any event, that even if CB had subpoenaed AB, it was probable that another section 21 application would have been forthcoming and, if so, the Judge would have ruled in the same way.
During the argument on appeal, counsel for CB conceded, with the benefit of hindsight, that it may have been open to the defence to subpoena AB. In addition, it may have been possible to encourage AB to return to court and voluntarily give evidence as part of CB’s defence case. Counsel acknowledged that he may have been too timid and, by inference, had too readily accepted the futility of attempting to call AB as part of CB’s case.
The fact that a defence counsel has made a forensic decision not to call an available witness that could have been but was not presented in the prosecution case, ordinarily will be relevant to the question of whether there has been a miscarriage of justice caused by the failure of the prosecution to call that witness.[32] However, given the circumstances of the present matter, whilst the absence of AB’s evidence might ultimately have been a consequence of defence counsel’s timidity (we will never know) it was not the fault of CB herself and was not the result of a deliberate forensic decision by defence counsel.
[32] See, generally, the discussion by Hinton J in R v M, RS [2018] SASCFC 37, particularly at [81]-[84].
Decisions made or omitted to be made by an accused’s counsel can, in limited circumstances, provide the foundation for a finding that an accused has not received a fair trial and, as a consequence, has suffered a miscarriage of justice. In the circumstances, I am not prepared to label defence counsel’s conduct at trial concerning this issue as incompetent and certainly not “flagrantly” incompetent in the sense referred to in the authorities. Nevertheless, the authorities dealing with when defence counsel’s error might give rise to a miscarriage of justice are of assistance. In Nudd v The Queen,[33] Gleeson CJ explained the overarching context in which the conduct of counsel is to be evaluated.
[33] [2006] HCA 9; (2006) 80 ALJR 614 at [9].
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
(footnotes omitted)
Of more direct assistance in the present case are the observations of Gummow and Hayne JJ in Nudd.[34]
[34] At [24].
As four members of this Court explained in TKWJ v The Queen, describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Qld). “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
(footnotes omitted)
Further assistance can be gleaned from the statements of principle by McHugh J in TKWJ v The Queen.[35]
[35] [2002] HCA 46; (2002) 212 CLR 124 at [79], [81], [82] and [85].
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, “whether counsel has been negligent or otherwise remiss … remains relevant as an intermediate or subsidiary issue”. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, “it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence”. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
. . . .
But … an accused will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability… .
It will be even harder for the appellant to succeed where counsel has made the choice because of a perceived “forensic advantage”… .
. . . .
Furthermore, where the alleged error of counsel does not concern a forensic choice, the appellant will usually be in a better position to prove that a miscarriage of justice has occurred than in cases of forensic choice. If counsel omits to call a material witness because of a memory lapse or a breakdown in communication and there is a significant possibility that the omission affected the outcome, the appellant will usually establish that a miscarriage of justice has occurred. In R v Scott, the Court of Criminal Appeal of South Australia held that the failure to call two witnesses because of a misunderstanding between counsel and the accused had led to a miscarriage of justice. Doyle CJ said that he “might not have reached this conclusion if this point stood alone”, but the “treatment in the summing up of [another witness’] evidence was all the more damaging because there was no answer to her evidence”.
(footnotes omitted)
In my view, in the unusual circumstances of this case, it is appropriate that this Court consider whether the absence of AB’s evidence has caused a miscarriage of justice given that AB, on my view of section 21, was available to be called by the defence, but for reasons that in the heat of the trial were understandable, was not.
Nevertheless, the question remains whether the absence of AB in fact has caused a miscarriage of justice. If there has not been a miscarriage of justice as a result of CB being deprived of the evidence of AB, appeal grounds 1(a) and 1(b) should be dismissed whether or not the section 21 decision was correctly arrived at.
I turn then to consider the question of whether or not the absence of AB has given rise to a miscarriage of justice insofar as CB is concerned. It will be helpful to summarise in point form the complainant’s evidence both in chief and cross-examination concerning the “first occasion”.
(i)The complainant’s mother, CB, took the complainant into her sisters’ room where there was a double bed mattress on the floor.
(ii)The complainant had been cleaning the house and had moved the double mattress from the lounge room floor to an area of floor between the two single beds in the sisters’ bedroom.
(iii)After the complainant undressed and sat down on the mattress, CB brought DB into the room.
(iv)The door was shut and the mattress was pushed up against it.
(v)The alleged conduct took place.
(vi)CB and DB then “stood up and moved [the mattress] and then we [the complainant, CB and DB] walked out”. They all put clothes on before leaving the room.
(vii)The complainant’s “siblings” were outside playing; by “siblings” the complainant meant her two younger sisters.
(viii)They (that is, the complainant, CB and DB) all had a shower and the complainant showered first.
(ix)The complainant watched CB and DB separately walk into the bathroom.
(x)After the complainant came out of the bedroom and had a shower, she did not see anyone else in the house.
(xi)The complainant’s brother, AB, was not inside the house AB “was out at the shopping centre”.
(xii)There was never an occasion when only the complainant and DB were together in the sisters’ room.
(xiii)The only time the complainant was with DB in the sisters’ room, CB was also there.
(xiv)The complainant denied being with DB in the sisters’ room whilst CB was in the shower.
(xv)The complainant said there was never another occasion of offending when the three were in the sisters’ room.
The burden of the admissible evidence expected to have been given by AB according to his statements is as follows.
(i)AB remembers “an occasion” when he was in the “lounge room” smoking a “bud”[36] that DB had given him (it is to be noted that the plan of the house, exhibit P1, shows an open plan dining and living area but no “lounge room”).
(ii)When AB went into the lounge room “this left [the complainant], [CB] and [DB] in the house by themselves”.
(iii)The other two girls “were out the back with [AB] when [he] was smoking the bud”.
(iv)When AB went “back inside” he tried to go into the girls’ bedroom but was unable to open the door.
(v)“It was like the bed was against the door”.[37]
(vi)When AB came back “[AB] was able to see [CB] in the bathroom”. AB looked around and could not see DB or the complainant. The sisters’ room was the only room AB “could not search”.
[36] Cannabis.
[37] There may be debate over the admissibility of such an expression of opinion or inference drawn by AB in all the circumstances. However, even if the evidence in (v) were to be excluded, AB’s evidence would remain as in (ii), (iii), (iv) and (vi).
If the evidence from AB had been adduced in this form and accepted by the jury as a reasonable possibility, the following inferences would have been open to the jury.
(a)That someone, either DB or the complainant or both, were in the sisters’ inaccessible room when AB returned.
(b)That AB’s mother, CB, was not in the sisters’ room at the same time as whomever was in the sisters’ room at the time AB looked around for DB and the complainant.
(c)That AB was describing the same occasion as that described by the complainant as the “first occasion”.
If these inferences were adopted as a reasonable possibility then it would also follow as a reasonable possibility that the complainant’s account of the “first occasion” was unreliable, at least insofar as the allegations against CB were concerned. If so, it might further follow for the jury that the complainant’s other allegations concerning CB were also unreliable.
The following alternative possibilities would appear to arise.
(a)AB is mistaken in his recollections and is unreliable about whom he saw and when and where.
(b)AB and the complainant are speaking of the same occasion (that is, (c) above) in which case potential inferences (a) and (b) fall for consideration.
(c)AB and the complainant are speaking of different occasions such that on the occasion of which AB speaks, the complainant was not in the room although someone else may have been and may have been preventing the door from opening. Whilst AB may have seen the complainant, CB and DB in the house prior to him going away to smoke the bud, the complainant may not have entered the room but gone somewhere else before AB returned.
A difficulty with the third possibility is that, on the assumption that the complainant had gone elsewhere, DB is the only person in the house not accounted for. Why would DB be alone in the sisters’ room and preventing the door from being opened from the outside?
In my view, the question of admissibility in this case falls to be determined in accordance with the principles identified by Kourakis CJ in R v MJJ; R v CJN.[48] The following observations, in particular, are apposite to the circumstances of the present case.[49]
The evidence of the squalid conditions and lack of nutrition explained the failure of the children, who were the victims of the various charged offences, to complain. Children who are kept in abject living conditions are more likely to be so subjugated that they will not complain about the commission of offences, of the kind with which the appellants were charged, than children who are properly cared for. It was also relevant to the cases brought against both appellants because it showed that they were not bound to their children by the protective bonds which are the ordinary incident of parental relationships and which would otherwise found an inference that they did not commit the offences alleged against them. I elaborate on the relevance of the evidence that the appellants lacked the protective bonds which characterise parental relationships in the paragraphs which follow.
It is a fundamental human instinct of parents to protect and nurture their children. If the evidence on a charge of assault brought against a parent with respect to his or her child was limited to the direct evidence of the assault itself, the tribunal of fact would be entitled to weigh that evidence against the improbability, drawn from an understanding of the human characteristic to which I have just referred, that a parent would so act. If a complainant were to give evidence of a protracted course of offending, that evidence would call into question the validity of so reasoning, even though the human drive to nurture children would remain a reason to doubt that the course of violence was inflicted. Obviously, items of independent evidence of conduct which is inconsistent with that parental characteristic may have an important bearing on the final resolution of the issue.
. . . .
The authorities referred to in [37]-[38] above show that the probative weight of what is sometimes referred to as “relationship evidence” has long been held to outweigh the prejudicial effect of the discreditable conduct it reveals. It does so because the evidence is specific to the relationship and patterns of conduct of the accused to the victim, and not to people generally. Evidence of the kind received in Hissey, Wilson, and Roach has strong probative value, because it is a matter of human experience that when abusive behaviours develop in close personal relationships, they generally persist. In this case, the relationship evidence extends to all members of the appellants’ family. It is also a matter of common experience that abusive conduct can affect a family as a whole and result in general dysfunction. Greater caution must be exercised when the discreditable conduct extends beyond the accused’s relationship with a single victim. However, the evidence in this case discloses close connections between the forms of abuse practised by the appellants against each of their children. It discloses such a deep-rooted breakdown of their sense of parental duty that it can be relied upon as showing the true terms on which the appellants and all of their children were living. If the evidence were accepted by the jury, it would cause them to give less, or no, weight to the parental relationship as a reason for thinking the offences improbable.
[48] [2013] SASCFC 51; (2013) 117 SASR 81 at [34]-[44].
[49] R v MJJ; R v CJN [2013] SASCFC 51; (2013) 117 SASR 81 at [34]-[35] and [44].
I accept the respondent’s submission that the impugned evidence was specific to the relationship between CB and the complainant and dealt with patterns of conduct of CB towards the complainant. As such, it went to the nature of their relationship and was properly adduced for the two purposes identified in the Judge’s summing up. The impugned evidence was probative for the purposes identified by the Judge and its probative value in these respects substantially outweighed any prejudicial effect it may have had particularly when regard is had to the detailed and strong directions given by the Judge as to permissible and impermissible uses.
Further, the permissible and impermissible uses were capable of being kept sufficiently separate and distinct as demonstrated by the directions in fact given by the Judge in compliance with section 34R(1) of the Evidence Act. As such, I am satisfied that there was no appreciable risk that the jury might have used this evidence improperly as part of its process of reasoning to guilt.
In essence, the applicant, CB, raised two complaints. First, counsel sought to distinguish the present matter from R v MJJ; R v CJN on the facts. The two cases, as would be expected, involved disparate factual situations. Nevertheless, the observations by Kourakis CJ in R v MJJ; R v CJN are of general application and remain relevant. For the reasons given, the impugned evidence was admissible and was properly admitted. Of course, the jury in the present case had a different factual matrix before them. However, the weight to be accorded the two permissible uses of the parental relationship evidence by the jury, following its analysis of the whole of the evidence before it, was always a matter for the jury.
The second main complaint by CB was that if the parental relationship evidence was properly admitted, she should have been permitted to cross-examine the complainant with respect to other complaints of a sexual nature made by the complainant in other contexts with a view to using such cross-examination as an antidote to the prosecution’s subjugation argument.
This issue has already been dealt with. But in any event, the prosecution case is that the complainant was subjugated because of her mother’s conduct such that during the three month period of the alleged offending conduct she acquiesced in the demands made on her by CB and DB and did not complain during that period about her mother’s sexual behaviour. The fact that the complainant may have made complaints about past sexual offending at a much later time and in quite different contexts would not detract materially from the prosecution’s argument that, given the nature of the relationship evidence, the complainant was subjugated (to comply with the applicants’ wishes) at the time of the offending.
I have found that the failure of CB to cross-examine on the fact of other complaints was not productive of a miscarriage of justice. The fact that CB did not do so or was prevented from doing so is not a reason that would justify the exclusion of the parental relationship evidence found to be admissible pursuant to section 34P. I would dismiss this ground of appeal.
The Judge’s refusal to redirect the jury on the issue of the complainant’s motive to lie (DB appeal ground 1)
Counsel for DB argued on appeal that the trial Judge’s failure to correct an erroneous direction given to the jury on the issue of the complainant’s motive to lie gave rise to a miscarriage of justice. It was part of the defence case for DB that the complainant was afraid that her mother was planning to move interstate with DB and abandon the complainant and her siblings. The complainant had been abandoned on earlier occasions and the fear that this was to happen again caused her to fabricate the allegations of sexual abuse.
During the trial, counsel for DB cross-examined the complainant on her knowledge of her mother’s plans to move interstate. Before the Judge and on appeal, counsel for DB contended that the complainant had acknowledged that she was aware of a plan by her mother to move interstate with DB. It was argued that an available inference arising from this acknowledgement, when considered in the context of the complainant’s history of having been abandoned, was that the complainant was upset with both her mother and DB over their plans to move away and, therefore, had a motive to lie by making false allegations of sexual abuse. Counsel in her address to the jury articulated a submission that the evidence disclosed a motive for the complainant to lie. In so doing, counsel reminded the jury at length of her cross-examination of the complainant on this topic.
In the Judge’s summing up to the jury, her Honour gave the following directions on the question of whether or not the complainant may have had a motive to lie.
Further in relation to your assessment of her evidence, can I direct you upon the issue of motive to lie. In this case it has been suggested, particularly by [counsel for DB] on behalf of [DB], that there is evidence from which you might infer that [the complainant] has a motive to make false allegations against the accused. It was put to you that there is a motive to lie arising from perceived further abandonment. It was said that [the complainant] was abandoned by her biological father, she was then abandoned by her grandmother who passed away after a lengthy time of caring for her, she was abandoned at times by [her step-father, SG] who had been like a father-figure to her and then after spending some time with her mother her mother left to go to Queensland for eight months with [DB]. She said in her evidence that she felt abandoned, angry and upset about that.
In this respect [counsel for DB] referred to the evidence which is the subject of an agreed fact that on 20 February 2015 [CB] advised a Families SA worker that she was giving up the housing property at Salisbury Plains and moving interstate next week. [Counsel for DB] suggested to [the complainant] in cross-examination that in the face of yet another abandonment situation [the complainant] became incensed, very angry and blamed her mother who was choosing [DB] over her and the kids. It is suggested that this gave [the complainant] a motive to make up false allegations against her mother and [DB].
Those suggestions were made to [the complainant] in cross-examination. [The complainant] denied having any knowledge at that time that her mother was intending to move interstate or leave them. The questions are not evidence, the answers are the evidence. On the basis of the evidence, there is no evidence that [the complainant] had any knowledge that her mother was intending to move interstate or leave them in February 2015. You will need to consider that in determining whether there is that motive on the part of [the complainant] to make up false allegations.
A motive to lie is obviously relevant to the credibility of any complainant. However, even if you reject the alleged motive here put forward it does not follow, of course, that [the complainant] is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is entirely neutral. Lies can, of course, be told for no apparent reason.
Crucially you must understand it is not for the accused to provide a motive for any complainant to lie. You must not approach the case on the basis of 'Well, why would she lie? Why would she make these allegations up?', that question in itself places an onus upon an accused person to provide a motive. An accused person has no such onus at all.
You, of course, need to give consideration to the motive put forward by [counsel for DB] on behalf of [DB] but at all times remember it is the prosecution which bears the onus of proof beyond reasonable doubt, the prosecution must satisfy you beyond reasonable doubt that [the complainant] was telling the truth.
At the conclusion of the trial Judge’s summing up, counsel for DB asked the Judge to redirect the jury on this topic on the basis that, contrary to the position as put by the Judge in the third paragraph of the directions just set out, there was evidence to support a submission that the complainant had conceded, at least in part, that she knew her mother and DB had plans to travel away together. The Judge refused to redirect the jury on this topic and gave the following reason.
I considered that transcript, those pages in its entirety and I recall the evidence of [the complainant] and it was clear to me that when she is saying 'Yes' on a couple of occasions, she is following what your question is and she makes it abundantly clear in the totality of that evidence that she did not know as of February 2015 her mother planned to leave her. That is my decision and that is why I directed it in the way, so I am not going to redirect the jury.
Unfortunately, in order to understand and address counsel’s complaint, it will be necessary to set out the very lengthy passage of cross-examination dealing with this issue and relied upon by counsel for DB.
QSo at what point in time did you find out that [DB] was going to go away with your mum, was that in 2015.
ASorry, can you say that again?
QYes. In late 2014, I should be clear, did you learn that - so before, I suggest, these allegations of sexual behaviour occurred.
AYes.
QDid you find out that there was a plan of your mum and [DB] to go interstate.
ANo.
QDid you understand them to be planning to go to New South Wales.
ANo.
QYou were aware, weren't you, that [DB’s] mother lived in New South Wales.
ANo.
QOr that she'd moved there.
ANo.
QIn Wagga Wagga.
AYes, actually.
QSorry, I've been using the words 'New South Wales' -
AYeah, I don't know where it is, that's why.
QSo just to be clear, if I start back at the beginning of those questions, when I'm talking about New South Wales I'm talking about the State.
AYes.
QBut what I'm suggesting is that [DB’s] mum moved over - or you found this out -
AYep.
Q- from what you were told, moved over to Wagga Wagga in New South Wales.
AYes.
QAnd that's because his sister, so [DB’s] sister, was living there; is that right.
AI wasn't aware of that.
QBut you were aware from conversations that -
AHis mother was over there.
QThe mother was going there.
AYes.
QI suggest that what happened as a result of that was that you were told that your mum and [DB] were going to move to Wagga Wagga.
AI didn't get told that.
QI suggest to you that you became very upset at that, learning that news.
AI didn't know about it.
QI suggest to you that you pleaded to go with them.
ANo.
QYou disagree with that.
AYes.
QIf I was to suggest to you that your birthday was around that time, I think you said your birthday was in May; is that right.
ANo, in June.
QSo if I suggested to you that when you - you disagree with this, but I suggest that you learned about this plan and that that's what ultimately happened, wasn't it -
ANo.
Q- mum and [DB] left to go to New South Wales -
AYeah.
Q- to Wagga Wagga.
AI didn't know about that, though.
QBut you knew that you and the kids were left with [SG] again.
AYes.
QAnd so you knew that for some reason, even if you say you didn't know exactly why, mum and [DB] were going off together.
AYes.
QAnd potentially leaving you again for another however many months.
AWhen - what year is this, sorry? After - when we went into care of [SG]?
QBefore you made these allegations, I suggest, so before you say these things happened -
AYes.
Q- which we're here about in court, I suggest that that's what happened.
ANo.
QBecause what I suggest is that you became distressed, distraught, overwhelmed by the thought that your mum was leaving you -
ANo.
Q- again with [DB].
ANo.
QYou disagree with that.
AYeah.
QIf I suggested to you that you rang your mum lots of times and asked her if you could come up with them, that is move over to Wagga Wagga with them, you disagree.
AYes.
QIf I suggested that mum sent you about $100 for your birthday and you rang up pleading at that time to come, you disagree.
AI disagree.
HH:[Counsel for DB], are you able to put a time frame on this?
[COUNSEL]:No, I might have to be try to do that but at this point it's just obviously before the allegations were made that the plan -
HH:Before she reported it to the police or before the allegations are supposed to have happened?
[COUNSEL]:Before the - I have to be careful now. It's before the allegations are supposed to have happened.
HH:So before November 2014?
[COUNSEL]:Yes, I think that's the best - I will have to see if I can find something else to put it to.
XXN
QWhat I suggest is that in the face of yet another abandonment situation, rejection situation you have become incensed, if you like, very, very angry and blaming mum for that.
ANo.
QThat is, because mum's choosing him over you and the kids.
ANo.
QI suggest that as a result of that you have made up an of [sic] sexual offending by both mum and [DB] out of anger -
AI disagree with that.
Q- at that scenario.
AI disagree.
QI suggest to you that you knew that the best way to get to mum was to implicate [DB] because mum was obviously close to him and that's what you were so upset about, that the two of them would go off and leave you and the kids.
ANo, I disagree.
(emphasis supplied)
Some of the questions and some of the answers in this passage of cross-examination contain ambiguities. Also, the complainant appears to have been confused by the questioner at times. Nevertheless, the clear burden of the complainant’s evidence in the above passages can be summarised thus.
(i)She was aware that DB’s mother lived in New South Wales.
(ii)However, she was not told and did not know as at February 2015 that CB and DB were planning to move to Wagga Wagga.
(iii)At some (indeterminate) time, CB and DB left to go to New South Wales.
There are some “yes” answers by the complainant that might be read as acceding to the proposition that the complainant knew in advance of a plan by CB to go interstate but these answers are more sensibly read (in context) as merely acknowledging the question being asked or acknowledging a timing clarification embedded in the question. In addition and importantly, the Judge had the advantage (as did the jury) of being present and being able to watch the complainant and hear the complainant give her evidence as it was given. With this advantage, the Judge formed a clear view that the complainant’s evidence was to the effect that she did not know CB planned to leave her. Given that the jury had the same advantage, it is highly likely that they would have understood this evidence in the same way.
In any event, on my reading of the whole of the passage of cross-examination relating to this topic, I have no doubt that the complainant made no concession material to the defence case. In addition, there was no positive evidence adduced through any other witness, including during the cross-examination of CB by counsel for DB, in support of this aspect of the defence case.
It might be said that the question of whether or not there was any evidence to support counsel’s submission that the complainant was aware of plans by her mother to abandon her should have been left as a matter for the jury to assess. However, and if so, I am not satisfied that the Judge’s direction on this point has caused a miscarriage of justice. As already indicated, I have little doubt that the jury would have taken the same view of the evidence as both the Judge and I have taken. Overall, the complainant’s evidence was clear that she did not fear abandonment at the time and whether or not for the reason as pressed by the cross-examiner. In the face of the complainant’s evidence considered in its entirety, the argument that there was a fear of further abandonment and that this operated to provide a motive was tenuous and, as I have indicated, there was no other evidence in support of such a proposition.
DB’s argument concerning motive was not withdrawn from the jury and remained available for it to consider. Notwithstanding the Judge’s direction concerning the state of the evidence as to the complainant’s knowledge of any plan to move interstate, the jury had before it the extensive submission put by counsel for DB on this topic. If anything, the Judge’s direction leaving the question of motive before the jury, in the form it was given, was advantageous to the defence.
I would dismiss this ground of appeal.
Failure to order a mistrial following receipt of prejudicial opinion evidence (DB ground 2)
Counsel for DB argued that the trial Judge erred in failing to accede to an application for a mistrial after a Department for Child Protection witness commented during her evidence that the complainant “was a good kid”. Strictly, when a trial Judge has refused an application to discharge a jury in such circumstances and the accused has been convicted, the appeal is not against the failure to discharge the jury but against the conviction.[50] In the present case, there is no real dispute that the impugned evidence was given inadvertently in the sense that it was not deliberately given by the witness with a view to assisting the prosecution. Furthermore, the Judge was not called upon to rule on its admissibility, so no question of an error of law arises. The question before the appeal court is whether the evidence, as given, was inadmissible and, if so, whether its reception before the jury has given rise to a miscarriage of justice.
[50] Maric v The Queen (1978) 52 ALJR 631 at 634.
TO, who worked at the Department for Child Protection, gave evidence for the prosecution concerning her role as the financial counsellor in the Financial Counselling Wellbeing Team in assisting CB. She described her monthly visits to the household where the complainant, CB and DB resided with the complainant’s three younger half-siblings. Her evidence included her observations of what took place and the state of the house during these visits. The impugned evidence emerged during the examination in chief.
QDid you make any observations in the course of your attendances at the home about [the complainant’s] role in the house.
AYes. On some occasions, on a couple of occasions, I would go pick up the kids for school, on a couple, and she was getting them ready, brushing their hair, getting their lunches and getting them ready. She was a good kid.
This evidence was given late in an afternoon. Counsel for DB did not object to the answer at the time nor raise any concern with the Judge at the evening adjournment once the jury had retired. However, the following morning, and before the cross-examination of the witness by counsel for CB resumed, counsel for DB made an application for a mistrial, based on the comment that the complainant “was a good kid”. The Judge refused the application in these terms.
My view is that on the witness’s evidence what she was referring to was that she is a good kid because she helps around the house and that’s the prosecution case, that she took up a lot of the slack of what her mother should have been doing and it’s no more and no less than that, so I’m against you on the application.
On appeal, counsel for DB complained that the statement “she was a good kid” was inadmissible opinion evidence and prejudicial to her client’s case. The case as pressed by the applicants throughout the trial had focussed on attacking the complainant’s credibility. The inadmissible opinion expressed by the witness, likely to be accepted by the jury as reliable, was positive evidence that went directly to the complainant’s credibility. DB argued that for these reasons the application for a mistrial should have been granted.
The respondent argued that the comment was confined to the witness’s observations of the complainant’s role in the house and, further, that the trial Judge was correct not to give a specific direction on this evidence in her Honour’s summing up. To do so might highlight the evidence and risk suggesting a process of reasoning that otherwise would not have been apparent to the jury.
The issue falls to be considered in accordance with the principles outlined by the plurality in Crofts v The Queen.[51]
…No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact…much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
[51] [1996] HCA 22; (1996) 186 CLR 427 at 440-441.
The impugned evidence in this case was a brief, almost throwaway, line the meaning or content of which was governed, indeed confined, by its context. The answer was directed to the complainant’s “role” in the house as observed from time to time during periodic visits by the witness. The witness explained what she saw – the complainant getting the younger children ready for school and how she did so. The concluding observation – “she was a good kid” – was no more than a summary of or conclusion drawn directly with respect to those observations. It was the sort of conclusion anyone, including jury members, might make on the basis of the observational evidence. Its effect was to convey no more than that which had already been conveyed by the observational evidence of the witness concerning what the complainant had done in terms of looking after the younger children. This was a legitimate aspect of the prosecution case. The statement did not purport to be and no reasonable juror would take it to be a more general good character or credit reference.
The witness, being a periodic visitor, had no basis on which to provide a more general good character reference let alone a credit reference and this would have been apparent to the jury. Furthermore, the Judge had the advantage of seeing and hearing the evidence as it unfolded and it caused her Honour no concern. In my view, this was an example of that to which the plurality referred in Crofts when they observed:[52]
… much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
[52] [1996] HCA 22; (1996) 186 CLR 427 at 440-441.
The impugned words uttered by the witness did not give rise to a miscarriage of justice. The essential task for the jury throughout the trial was to assess the credibility and reliability of the complainant’s account of sexual offending. I am not satisfied that there was any appreciable risk that the impugned observation, when considered in the context of the trial as a whole, diverted the jury from this task or influenced it in a manner detrimental to CB when reaching their conclusion.
The Judge was not asked either before the application for a mistrial was made or after it was refused to give the jury a direction to ignore this aspect of the witness’s evidence. In my view, the evidence was sufficiently inconsequential to render such a direction unnecessary. Furthermore, the giving of such a direction would have risked giving the evidence unwarranted significance in the minds of the jury. I would dismiss this ground of appeal.
Conclusion
In the appeal by CB, I would grant permission to appeal, allow the appeal, set aside the six convictions and order a retrial on all six charges.
In the appeal by DB, I would extend the time for filing of the Form 51 to 5 February 2019 and grant permission to appeal. However, before finally determining DB’s appeal I would allow a short period of time within which DB is to file any supplementary ground of appeal arising from my findings in paragraphs [91-[92] concerning the absence from the trial of AB, as DB may be so advised, and within which DB and the respondent are to file written submissions addressing any such further ground.
HINTON J: I agree with the orders proposed by Nicholson J for the reasons he has given.
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