R v BASA

[2012] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BASA

[2012] SASCFC 35

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Anderson)

17 April 2012

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - JOINDER OF PERSONS OR COUNTS

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE - SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER

Appeal against conviction – the appellant was found guilty by jury verdicts of seven sexual offences committed upon four girls – the judge refused an application for a separate trial, ruling that the evidence of the first complainant was cross-admissible – whether the evidence of the first complainant was admissible in respect of the other three complainants – whether the judge failed to direct the jury as to how evidence of uncharged acts against one victim could be used in respect of the other victims.

Held: Appeal dismissed – the judge was correct in finding that the evidence of the first complainant was admissible in respect of the allegations made by the other complainants and vice versa – permission to appeal on ground 6 refused – the judge did direct on the permissible and impermissible uses of the uncharged acts.

Criminal Law Consolidation Act 1935 (SA) s 278(2a)(c), referred to.
R v M, BJ (2011) 110 SASR 1; Hoch v The Queen (1988) 165 CLR 292; Director of Public Prosecutions v Boardman [1975] AC 421; Roach v The Queen (2011) 242 CLR 610, discussed.

R v BASA
[2012] SASCFC 35

Court of Criminal Appeal:  Doyle CJ, Vanstone and Anderson JJ

1. DOYLE CJ:          I agree with Vanstone J that permission to appeal on ground 6 should be refused, and that the appeal against conviction should be dismissed.  There is nothing that I wish to add to her reasons.

2. VANSTONE J:     The appellant was found guilty by jury verdicts of seven sexual offences committed upon four girls.  He now appeals against those convictions.  The appeal turns on the question of whether the evidence of the first complainant was admissible in respect of the other three complainants.

   Background

3. The victim of counts 1 and 2 was the stepdaughter of the appellant.  I shall refer to her as “S1”.  Her mother and the appellant were married and living together in 2000 when those offences of indecent assault were said to have occurred.  It was her complaint about the appellant’s conduct which effectively ended the marriage.  Soon after being told to leave the house, the appellant formed a relationship and moved in with the mother of the complainant in count 3, persistent sexual exploitation of a child.  I shall refer to that victim as “S2”.  The dates of that charge spanned January 2002 to September 2009.  The particulars of the charge referred to both indecent assaults and offences involving penetration.

4. The other two victims, F1 and F2, were close friends of S2.  The conduct alleged by F1, represented by counts 4, 5 and 6, was extensive.  F2 was the complainant in count 7.  Counts 4 to 7 occurred within the dates spanned by count 3.  As well as the specific conduct charged as counts 1 and 2, and 4, 5 and 6, S1 and F1 also alleged similar conduct which was not the subject of a charge.

5. Both at trial and before this Court it was conceded that the evidence in support of counts 3 to 7 was cross-admissible.  At least in part, that was because the conduct often occurred in the presence of more than one girl.  In respect of the counts concerning S1, the judge refused an application for a separate trial, ruling that this evidence too was cross-admissible.  The judge said:

   But, again, in my view, the differences are apparent by virtue of the fact that [S1] rejected the advances of the accused.  On her allegations, the similarities in the patterns of his behaviour are so similar and the general circumstances again lead me to conclude that it was improbable that each of these victims would tell such similar stories about their experiences if they were not true.

   The only ground of appeal upon which permission to appeal has been granted complains that this decision was wrong and led to a miscarriage of justice.

6. The appellant also seeks to argue another ground, upon which a single judge of this Court refused permission.  That ground complains that the judge failed to direct the jury as to how it could use the evidence of uncharged acts of a complainant when evaluating the evidence of another complainant.

   Argument on cross-admissibility

7. Mr I L White, who appeared for the appellant before this Court, pointed to a number of differences in the conduct alleged in counts 3 to 7, as against that alleged by S1.  For example, he observed that while the offending described by S1 occurred when she was alone with the appellant in various areas of their home, the conduct involving S2, F1 and F2 all took place in S2’s bedroom, and often with F1 or F2 being present.  Then, with S1 the indecent assaults were less serious than the later conduct.  It involved only kissing, patting and touching near her breasts and groin.  The later conduct was far more invasive.  Next, Mr White pointed out that, although the judge found a parallel in the appellant being said to have used gifts or money to ingratiate himself with the girls, the only evidence of that tenor concerning S1 was an offer by the appellant to pay S1’s large mobile telephone bill, about which S1 was scared to tell her mother.

8. Mr White submitted that there were insufficient similarities in the evidence of S1 and the other girls to meet the high degree of probative force required of similar fact evidence.  In effect he argued that this evidence was incapable of showing any more than general disposition.

9. The principles concerning the admission of similar fact or propensity evidence in these circumstances are not in issue upon this appeal. Section 278(2a)(c) of the Criminal Law Consolidation Act 1935 (SA) has altered the test for admissibility. I addressed the impact of that subsection in R v M, BJ (2011) 110 SASR 1 at 12-13. In order to be admissible the evidence must raise, “as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”: Hoch v The Queen (1988) 165 CLR 292 at 295. The degree of probative force must be such that to exclude the evidence would be “an affront to common sense”: Director of Public Prosecutions v Boardman [1975] AC 421 at 456.

   Analysis

10. In my opinion the learned trial judge was correct in finding that the evidence of S1 was admissible in respect of the allegations made by the other girls, and vice versa.

11. Dealing first with S1 and S2, there were important similarities in the way the appellant attached himself to a single woman with one or more female children and quickly established himself as a person trusted not only by that woman, but also by the girls S1 and S2 themselves.  To that could be added the way in which he quickly engendered in the girls their affection for him.  Then, in each case, he began his activity by touching that might be seen as merely affectionate, graduating to more overt sexually motivated touching.

12. The difference in the locale of the offences referred to by Mr White is accountable on the basis that S1 shared a bedroom with her two younger sisters, so that the appellant was unlikely to be alone with her in that room.  In terms of the nature of the acts, it is instructive that S1 was not receptive to the appellant’s activities.  His dealings with S1 were never allowed to progress in the way they did with the other girls, because S1 told her mother on about the third occasion of being touched, and that led to a complaint to police – not at that time pursued – and the break up of the marriage of the appellant and S1’s mother.

13. When the appellant’s conduct with S2 began, less than a year after count 2, S2 was younger than S1.  Again the touching was rather ambiguous at first.  But the younger girl did not seemingly object and that led to a progression in the level of intimacy.

14. The same sort of progression was described in the evidence of F1, who was about the same age as S2 and a close school friend of hers.  They were in Years 5 and 6 together.  They remained friends when S2 went to another school.  F1 continued to stay overnight with S2 occasionally until early in their tenth year of school.  In relation to F1 and F2, the same pattern of ingratiating himself by means of compliments, play and the giving of presents could be seen.  In their case the conduct always occurred in the bedroom of S2, which each shared with S2 when staying overnight.

15. In my view the parallels between the evidence of all the girls, and particularly between the evidence of S1 and S2, were such as to render the evidence of each girl admissible in relation to the other charges.

16. There is a further matter to be considered.  When S2, F1 and F2 gave their evidence, it was put to them that they had concocted the allegations between themselves.  It became apparent that the appellant’s defence to the charges, so far as these three girls were concerned, was that they had conspired together to falsely incriminate him.  In those circumstances the evidence of S1 became even more probative.  The complainant S1 was not known to any of the other complainants.  At the cessation of her mother’s marriage with the appellant there was no more contact with the appellant.  She had never met the other complainants.  It could not be, and was not, suggested that she was involved in any concoction with those girls.  In those circumstances her evidence, presenting as it did the parallels I have mentioned, became even more probative of the appellant’s guilt of all the charges.  In my view, even if the evidence of S1 had been found in pre-trial argument not to be admissible on the other charges, the cross-examination of S2, F1 and F2 would have had the effect of enhancing its probative value in such a way as to undermine the original ruling and call for reversal of it.  In other words, even if it were not admissible prior to the trial, once the appellant’s defence was known, it would have become so.

17. However, as I said earlier, I consider to be correct the judge’s ruling at the outset of the trial that the evidence was all cross-admissible.

18. This ground of appeal must fail.

    Argument on jury directions

19. The second ground of appeal which the appellant seeks to agitate (ground 6) is a complaint that the judge failed to direct the jury as to how evidence of uncharged acts against one victim could be used in respect of the other victims. 

20. Evidence of uncharged acts was given by S1 and F1.  As well, S2 gave evidence of incidents beyond the particulars of the persistent sexual exploitation charge, but in the nature of that charge they were encompassed by it. 

21. Contrary to the thrust of the proposed appeal ground, the judge did direct on the permissible and impermissible uses of the uncharged acts.  In doing so he confined the use of that evidence to issues relevant to the complainant who gave the evidence.  The permissible uses were said to be to help in assessing the reliability of that complainant’s evidence by providing evidence of the entirety of the relationship and the context in which the charges occurred.  It was said that the material might also explain why the complainant under consideration showed no shock or distress at the appellant’s conduct and failed to protest about it, as well as why the appellant expected her cooperation.  The jury was told it could also explain a complainant’s inability to be precise about the dates or occasions of abuse.  The jury was told that such uses were the only proper uses of the evidence.

22. The jury was also directed on impermissible uses of the evidence.  The judge warned that satisfaction of any uncharged acts did not take the place of satisfaction of the charges.  He also specifically warned against reasoning from any uncharged act that the appellant was the sort of person who would likely commit these sorts of offences. 

23. The judge instructed the jury that it should not make use of any uncharged act unless satisfied beyond reasonable doubt of it.  Having regard to the High Court’s decision in Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 at [49] that direction would seem to have been unnecessary and indeed too favourable to the appellant.

24. There is no merit in this proposed ground. 

    Conclusion

25. For the foregoing reasons I would make the following orders:

    1.Permission to appeal on ground 6 is refused,

    2.The appeal is dismissed.

26. ANDERSON J:     I agree with Vanstone J that in relation to the application for permission to appeal on ground 6 it should be refused. I also agree that the appeal against conviction should be dismissed for the reasons given by Vanstone J.