R v B, DWL; R v B, CG - [2019] SASCFC 101

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] SASCFC 101
Decision Date: 16 August 2019

CaseChat Overview and Summary

This case concerned appeals by two accused, CB and DB, against their convictions for unlawful sexual intercourse. The complainant alleged that both CB and DB committed six counts of unlawful sexual intercourse against her between November 2014 and January 2015, when she was 13 years old. The prosecution's case was that the offending conduct by each applicant was committed in the course of a joint criminal enterprise.

The primary legal issue before the court was whether the trial judge erred in refusing permission to cross-examine the complainant on alleged prior sexual complaints she had made against others, pursuant to section 34L of the Evidence Act. CB also raised grounds concerning the exemption of a witness from giving evidence and the admission of evidence regarding violence and neglectful parenting. DB contended that the judge failed to redirect the jury on the complainant's motive to lie and erred in not granting a mistrial following the admission of prejudicial opinion evidence.

The court analysed section 34L of the Evidence Act, which governs the admissibility of evidence concerning the sexual activities of an alleged victim in sexual offence proceedings. The section requires the judge to be satisfied that such evidence has substantial probative value, or would materially impair confidence in the reliability of the victim's evidence, and that its admission is required in the interests of justice. The judge must also consider the principle of avoiding unnecessary distress to the alleged victim. Applying these principles, the court found that the trial judge had not erred in refusing permission to cross-examine on certain alleged prior complaints, as they lacked substantial probative value or were of marginal relevance and likely to cause distress. However, the court considered that the refusal to allow cross-examination on other alleged complaints, particularly those involving DB, may have been an error.

Ultimately, the court allowed CB's appeal, quashed the convictions, and ordered a retrial. For DB, the court extended the time for filing an appeal and granted permission to appeal, but deferred final determination pending further submissions on a supplementary ground of appeal related to the absence of a witness.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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)

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

NICHOLSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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].