R v B, RWK - [2004] SASC 331

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, RWK
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
26 October 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - retrial - appellant found guilty by jury of three counts of unlawful sexual intercourse - victim raised allegations of further uncharged acts of sexual intercourse not raised at previous trial - whether trial Judge's refusal to discharge jury resulted in a miscarriage of justice - whether trial Judge erred in directions to jury concerning delay - whether trial Judge erred in directions to jury concerning proof of uncharged acts - whether trial Judge erred in directions to jury relating to reaching a verdict - whether trial Judge erred in directions to jury concerning the cross-admissibility of evidence - appeal dismissed.
R v IK [2004] SASC 280; R v Clifford (2004) 233 LSJS 157, considered.

R v B, RWK
[2004] SASC 331
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: The appellant, RB, was tried before a jury in the District Court on an Information alleging three counts of unlawful sexual intercourse with his niece, C. She was twelve years of age at the time of counts one and two, and between twelve and fourteen years old at the time of count three.
The jury found him guilty on each count.
RB appeals by leave against the convictions. He complains of a failure by the Judge to discharge the jury after C gave evidence of offending by RB that she had not previously disclosed. There is a complaint about the manner in which the Judge dealt with the jury after the foreperson indicated that the jury might be deadlocked. RB complains also of the Judge’s directions in relation to the impact on the defence case of delay and of a lack of particularity in the allegations of offending conduct and of directions in relation to the standard of proof and in relation to cross-admissibility of evidence.
The trial
The trial was a retrial, guilty verdicts at an earlier trial having been set aside on appeal.
C was born in January 1987. She was seventeen years of age at trial. When the events in question happened, she was living with her mother and brothers and sisters. At trial her mother was 33 years of age. RB, her mother’s younger brother, was 27 years of age at trial.
From time to time RB lived with each of his three sisters and their families, including with C’s mother and her children. The prosecution case was that he interfered sexually with C on many occasions while he was living with the family or staying with them.
The conduct that C described began between 1991 and 1994, when C was between four years and six years of age. At that time RB was between fourteen and seventeen years of age.
Count one was alleged to have occurred between 1 August 1999 and 30 October 1999, when C was twelve years of age. The allegation was that RB inserted his finger into C’s vagina.
Count two was alleged to have occurred between 1 August 1999 and 30 October 1999, when C was twelve years of age. The allegation was that RB licked or sucked C’s vagina.
Count three was alleged to have occurred between 1 October 1999 and 18 November 2001, when C was between twelve years of age and fourteen years of age. It alleged that he inserted his finger into her vagina.
The prosecutor opened the case to the jury on the basis that they would be told of occasions of “sexual interference” in addition to those charged.
C’s mother was the first witness for the prosecution. She gave background evidence about where the family lived, about sleeping arrangements, and about RB staying with her, including evidence of occasions when he was the only adult in the house.
In cross-examination, counsel for RB raised for the first time an occasion when C’s mother telephoned RB, who at that time was at his mother’s house. Counsel put to C’s mother that she “told him that you knew what he had been doing to your girls”. Thus, he raised an allegation of interference with other children in the family, a matter that had not been raised by the prosecutor. C’s mother admitted that there had been a telephone conversation when she confronted RB, but denied saying what was put to her. Counsel for RB then put to C’s mother that during the telephone conversation C was somewhere near her mother, and that when C’s mother spoke to her mother (it was common ground that the telephone was handed to her mother), C was heard to say in the background, “No, not Uncle [R].” C’s mother denied that that happened.
C was the next witness. She gave lengthy evidence.
She said that her first memory of misconduct related to a time when she was five or six years of age. She said of RB that “he did play around with us. Then he started touching us. Then he’d get us to touch him.” This was in the context of C and her sister playing together, and so the jury would have understood this as an allegation of misconduct involving C’s sister as well.
C went on to give evidence of a number of acts constituting indecent assaults, involving RB touching C and getting her to touch his penis. She gave evidence also of occasions when he inserted his finger into her vagina, when he inserted his penis into her vagina, and of occasions when he licked or sucked her vagina. She gave evidence of a number of specific incidents, and also some more general evidence. The evidence of the incidents did not come out in chronological order, but most incidents were described in reasonable detail.
In directing the jury, the Judge arranged the incidents in roughly chronological order, by reference to the address at which the family was living at the time. So arranged, there were ten uncharged acts that she described, then the three charged acts, and then another two uncharged acts.
This evidence included evidence of two incidents of penile intercourse, neither of which was the subject of a charge.
Her evidence included some six or seven incidents that had not been referred to in statements made to the police, or in her evidence at the first trial. They included the two occasions of penile sexual intercourse.
C gave evidence that one day (she was not asked to say when) as a result of something her mother said to her, she decided “to tell her.” Until then she had not been planning to tell her mother, although she “was trying to give her hints.”
In the course of her evidence, she said that she had kept secret what was happening between her and RB because she was afraid her mother would “kill him.”
At the end of C’s evidence-in-chief, counsel for RB asked for time to obtain instructions on the incidents that had not previously been alleged. No application was made to the Judge to discharge the jury. The case was adjourned from mid-morning until the following morning to allow counsel to obtain instructions, and the Judge explained to the jury that “new allegations” had come out in the evidence. He mentioned that this would not have escaped the attention of the jury, so presumably in one way or another, as the evidence was given, it was apparent that new allegations were being made.
Counsel for RB cross-examined C for the whole of the next day. He suggested that C was making her evidence up. He cross-examined her about the telephone conversation, when C’s mother rang RB and also spoke to their mother. He put to C that she was close-by when her mother made the phone call, and that during the phone call she said “No, not Uncle [R].” C said that she did not remember saying this, but when asked if she “could have said those words”, she said “Maybe.” When asked what she meant by that, if she said it, she said “I don’t know.”
This was close to the end of the day. There was some discussion between the Judge and counsel in the absence of the jury. The Judge made it clear that in his opinion it had not been clear that the suggested comment by C was made in the context of a conversation about allegations against RB, and that this, in fairness, had to be made clear to C.
The Judge indicated that he would allow the prosecutor to re-examine on that matter if counsel for RB did not pursue it in cross-examination.
In the course of the discussion, counsel for the Director of Public Prosecutions indicated that he wished to re-examine C about allegations against RB of offences against other children in the family, to show that this might provide a reason for C not telling her mother of all the allegations against RB. The suggestion was that there was a more widespread family crisis, and that is why C’s allegations were not the only focus of attention. The Judge would not allow re-examination along these lines.
The following morning, after further submissions, counsel for the Director asked the Judge to discharge the jury. He did so on the basis that the Judge’s restrictions on re-examination meant that the prosecution could not properly present its case.
The Judge rejected the application.
Counsel for RB then resumed cross-examination, putting to C that she had said “No, not Uncle [R]” in the context of her having complained to her mother about conduct by RB. C said that if she said it, “I would have been talking about something else.” That was the end of the cross-examination, and counsel for the Director then re-examined.
After C completed her evidence, her sister M was called. She did not give evidence of any offences by RB, but did give evidence of him showing M a pornographic video. This tended to support some evidence given by C.
After she had completed her evidence, counsel for RB asked the Judge to discharge the jury. He told the Judge that he had limited the final part of his cross-examination to the clarification of C’s “background” comment or statement because the Judge had required him to limit it to that. The Judge said that was not so, and that all the Judge had said was that if counsel for RB did not clarify the context of the comment, he would allow counsel for the Director to re-examine to do so. He rejected the application and the case proceeded.
Other witnesses were called, including a doctor who examined C on 14 December 2001. Her findings on examination were neutral, in the sense that they provided no evidence of sexual interference, but as the doctor said, it is only rarely that in circumstances like this there would be signs of sexual interference. The examination was on 14 December 2001. A police officer gave evidence that he became aware of the allegations against RB in November 2001, and arrested RB about eight weeks later.
RB gave evidence denying the charges. His mother was called to give evidence of the telephone conversation referred to above, and of some other background matters of relevance having regard to evidence that had been given. She said that C’s mother said to her “I know what your son has done to my girls”, and in the background she heard C saying “No, not Uncle [R].”
In his address to the jury, counsel for RB made some point of the fact that in her evidence C had raised new allegations. Counsel for the Director had also referred to this in his address to the jury, and having regard to evidence that had been given was able to make the point that other allegations had been made against RB, although he was not in a position to go into any details.
The case was one in which everything depended upon what the jury made of C as a witness. There was no room for mistake in her evidence. Either she was truthful or not.
Ground 1 – application for discharge of jury
Mr MacFarlane, counsel for the appellant, submits that the Judge’s refusal to discharge the jury on the application by the prosecutor and on the application by defence counsel has resulted in a miscarriage of justice. He relies on the late disclosure by C of fresh allegations, submitting that this was productive of unfairness amounting to a miscarriage of justice.
He did not argue that the new material was not admissible. It was admissible as evidence of uncharged conduct by RB which could be used for the limited purposes for which the evidence of other uncharged conduct was admitted.
There was no unfairness in the circumstances. At trial, neither counsel sought a discharge of the jury because of embarrassment in dealing with the new material. The prosecutor sought a discharge of the jury because of restrictions on the presentation of the prosecution case, resulting from the Judge’s ruling as to the scope of permissible re-examination. Defence counsel sought the discharge of the jury because he had not cross-examined C on certain matters, thinking that the Judge had refused to allow that. That was cured by the Judge allowing C to be recalled for further cross-examination.
In the course of the trial the Judge granted an adjournment to allow defence counsel to obtain instructions on the new material. No request was made for a further adjournment.
It is also relevant that the jury were told several times that C had raised new material for the first time in the course of her evidence.
No miscarriage of justice arose from the raising of the new material.
Ground 3 – The Judge’s warning to the jury about C’s evidence
The Judge told the jury that there had been “considerable delay” from the time of the conduct first alleged against RB until trial. He directed the jury about how delay by C in complaining about the conduct might affect their assessment of her. He then told the jury how a delayed complaint might make it difficult for an accused person to test the allegations against him. He then gave the jury the following warning:
“I warn you that it would be dangerous to rely upon the evidence of [C] and convict the accused on the basis of her evidence unless, after scrutinising her evidence with great care and paying heed to this warning, you are nonetheless satisfied about its truth and accuracy.”
In the course of his directions leading up to this warning, referring to the impact of delay on the ability of the accused to test the allegations against him, the Judge said “Certainly, he has not raised anything about this in his defence. His defence is a denial of any offending charged or uncharged.” In relation to the particular incidents the subject of the three charges, he said that the accused was “probably not disadvantaged” because the occasion and circumstances of these three incidents were “identified with considerable particularity”, which he outlined.
It would have been better if these comments were not made. As to the former comment, it is difficult if not impossible for an accused to show precisely how the presentation of his defence has been prejudiced by delay. The warning is given because there is a risk of prejudice to the defence that cannot be ignored. The first of the Judge’s comments might have suggested that the failure of the accused to point to prejudice meant there was none. The second comment had some basis on the facts, for the reasons the Judge gave. But there remained a risk of delay causing prejudice.
As a result of a question by the jury, the Judge later returned to his warning. He repeated it for them. He covered all the main points, referring again to delay and to possible prejudice to the presentation of the defence case. He did not repeat the first comment referred to above. This was just before the jury retired for the last time.
Taken as a whole the directions were adequate. The jury could have been in no doubt that they had to consider potential prejudice to the defence attributable to the delay. The comments made by the Judge, to which I have referred, were not such as to deprive the accused of the benefit of the directions that the Judge gave, even though it would have been better if they were not made.
If the delay in making allegations against an accused has resulted in prejudice to the presentation of the defence case, or gives rise to a real risk of prejudice, an appropriate direction should be given to the jury about that. The direction might or might not involve a warning to the jury. That would depend on the circumstances of the case. But if the occasion arises to give the jury a direction about the impact of delay, it is desirable not to say anything that might suggest that it is for the accused to demonstrate actual prejudice.
I do not accept that there has been a miscarriage of justice on this ground.
Ground 4 – Proof of the uncharged conduct
The Judge directed the jury with some care about how the uncharged conduct could and could not be used. The directions were appropriate. In the course of his directions the Judge said:
“You do not need to be satisfied as to each and every separate incident recounted by [C] but, rather, you need to be satisfied that it has been established, and established beyond reasonable doubt, that there was in place a continuing course of sexual misconduct.
Now, if you are not satisfied to that degree, members of the jury, you simply disregard that other conduct as unhelpful.”
In answering a question from the jury the Judge returned to this topic. Among other things he said:
“I made the point in relation to the uncharged conduct that the Crown are obliged to establish beyond reasonable doubt that course of uncharged sexual misconduct. Of course they are all those incidents that I recounted to you from the evidence. They are really a combination of incidents.
……
… You do not have to examine each particular incident. You need only to take into account all that evidence and ask yourselves whether that does constitute a course of sexual misconduct, and you are content about that beyond reasonable doubt.
Members of the jury, as a matter of common sense if … you get to a stage in looking at them all where you are unconfident about the establishment of a number of them, you might come to the view that overall that history of sexual misconduct has not been established to your situation [presumably satisfaction] beyond reasonable doubt.”
It is not necessary to consider whether it was necessary or appropriate for the Judge to direct the jury that they had to be satisfied of the uncharged conduct beyond reasonable doubt before they could take it into account. This is a matter that was considered by this Court in R v IK [2004] SASC 280 at [78]-[87] Doyle CJ, [120]-[133] Perry J and [147]-[160] Vanstone J. In this case submissions were not directed to that point.
In his submissions Mr MacFarlane suggested that the reference to the uncharged acts as a course of conduct or as a “combination of incidents” was undesirable. He argued that the jury should have been directed that the prosecution had to establish each separate uncharged act beyond reasonable doubt.
I agree that the Judge’s approach had the potential to cause some confusion. To tell the jury that they need not be satisfied of each incident, but merely that the overall course of misconduct had been established, raises the question of identifying the point at which the course of conduct is not established. However, in the Judge’s redirection to the jury he put to them, in a general way, what in my opinion is the main point. That is, lack of satisfaction about a number of the incidents might cause the jury not to accept the evidence as a whole.
My view is that in a case like this it is better not to introduce the concept of a course of conduct, separate from the incidents on which it is based. But, in the circumstances of this case, I do not consider that the Judge’s approach has given rise to a miscarriage of justice, or to a risk that one occurred.

A direction that each separate incident had to be established beyond reasonable doubt would have been, in the circumstances, unduly favourable to the defence. It may be that the direction actually given was unduly favourable to the defence, but as the issues canvassed in IK were not canvassed here, it is not necessary to decide that. It suffices to say that in the circumstances the Judge adequately brought to the jury’s attention the need to consider the evidence of uncharged conduct and the possibility, if they were not persuaded to accept the substance of C’s evidence, that it could and should be put to one side.
The Judge’s reference to proof beyond reasonable doubt brought into play his general direction as to the meaning of proof beyond reasonable doubt. In the course of his general directions on that, he said to the jury:
“A reasonable doubt is a doubt entertained by you, as reasonable members of the community.”
After saying the same thing in another way, he then said:
“If, at the end of the case, you are left with a reasonable doubt as to the guilt of the accused, a doubt which arises reasonably from the evidence, then you must give him the benefit of that doubt and find him not guilty.”
Mr MacFarlane criticised the reference to a doubt that arose reasonably from the evidence. He submitted that this was an impermissible expansion and explanation of the appropriate directions to the meaning of “reasonable doubt”, which direction the Judge initially gave.
I do not agree. I consider that in this respect the Judge was doing no more than explaining the one concept in different ways. The comment was unnecessary, but seen in the context could not have misled the jury.
Ground 5 – Direction to the jury about reaching a verdict
The jury retired about 1.20 pm. About 5.30 pm the Judge brought them back in. He raised with them the alternatives of separating for the night and resuming next morning, or continuing their deliberations.
The foreperson then said that the jury were “having a problem reaching a verdict”, and that they had “been deadlocked for approximately about an hour.” The Judge asked the jury to retire, and heard short submissions from counsel. He then recalled the jury. He referred to the fact that it was a retrial, to the importance of coming to a conclusion and said that he was inclined to release the jury overnight and invite them to resume their deliberations next morning, if they thought it was worthwhile doing that. The foreperson then volunteered that the jury had had a discussion, and “would like to come back in the morning and resume their deliberations”. The Judge then adjourned the court and released the jury overnight.
I cannot find anything wrong with what the Judge did. Mr MacFarlane argued that the Judge should not have referred to the fact that it was a retrial, and seemed to suggest that the Judge’s comments put inappropriate pressure on the jury. But they were the briefest of comments, and it appears from the transcript that the jury had decided in any event that they wished to continue their deliberations. There is no substance in the complaint that what the Judge said put inappropriate pressure on the jury to compromise their views.
Ground 6 – Cross-admissibility of evidence
The Judge directed the jury that each charge must be considered separately and independently. As I have already said, he gave them an appropriate direction about how the evidence of uncharged conduct could be used and could not be used. He told the jury that if they were satisfied beyond reasonable doubt as to count 1, the evidence on that count could be used in relation to the other two counts in the same way as they could use the evidence of uncharged conduct. He gave a like direction in relation to count 2.
In the circumstances that direction was appropriate.
There is no substance in this ground of appeal.
Ground 7 – Miscarriage of justice
Mr MacFarlane did not submit that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
The submission under this ground is that having regard to the evidence given by C of previously undisclosed offending conduct, the trial had resulted in a miscarriage of justice. As I understand the submission, it is the same submission as was put in relation to ground 1. Accordingly, it suffices to say that there is no substance in the submission.
Conclusion
For those reasons I would dismiss the appeal against the convictions.
BLEBY J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice. I merely wish to add one further comment concerning Ground 4 and the direction that the jury needed to be satisfied that there was a continuing course of sexual misconduct. I agree that the direction given had the potential to cause confusion in a case where the complainant had given evidence of a great many specific incidents. Even though they could not be given a date, they were incidents which she said took place on a particular occasion associated with some other act or event and at a particular place. Generally speaking, it is unwise to rely on proof only of a course of conduct where the evidence is given in that manner.
The evidence in R v Clifford (2004) 233 LSJS 157, on which the Judge seems to have modelled his direction, was of a very different character. It was lacking in particularity and involved a course of conduct over a long period of time, on many occasions and of a repetitive nature. Indeed, one of the complaints in that case was of the lack of particularity.
What may be an appropriate direction in one case is not necessarily so for another. Notwithstanding that, in the circumstances of this case I do not think that the direction gave rise to a risk of a miscarriage of justice.
GRAY J: This appeal should be dismissed. I agree with the reasons of Doyle CJ.