(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice Nicholson)
17 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The appellant was charged with thirty counts of sexual offending against three complainants; MG, SG and MA. On a trial of those charges before a jury, the appellant was convicted of five counts of indecent assault and twelve counts of unlawful sexual intercourse. The appellant appeals against those convictions.
The appellant appeals on a number of grounds. Primarily, the appellant contends that a fair trial miscarried as a result of the joint trial and that the judge failed to adequately direct the jury on the cross-admissibility of the evidence as between the counts relating to each of the complainants. The appellant also contends that the judge failed to: direct the jury with respect to the limited use to be made of the alleged admissions; direct the jury adequately in relation to the appellant’s good character; provide adequate directions in relation to the significant forensic disadvantage as a result of the delay; and, adequately present the defence case.
Held (allowing the appeal):
(1) In the absence of an objection, a trial judge does not have to consider the issue of the admissibility of evidence of discreditable conduct under s 34P of the Evidence Act 1929 (SA) (Kourakis CJ at [54], Anderson and Nicholson JJ agreeing).
(2) The Judge was right not to order a separate trial of the counts relating to MG from those relating to MA; the evidence was cross-admissible and a joint trial was necessary (Kourakis CJ at [54] and [89] Anderson and Nicholson JJ agreeing).
(3) The probative value of the evidence of SG in the trial of charges against MG and MA does not outweigh its prejudicial effect and, therefore, the evidence of SG is inadmissible in the trial of offences against MG and MA (Kourakis CJ at [55] and [88]-[89]), Anderson and Nicholson JJ agreeing).
(4) The probative value of the MG and MA discreditable conduct admitted for its permissible uses would not outweigh any prejudicial effect with respect to the case brought on behalf of SG. The MG and MA discreditable conduct evidence is not admissible in the case concerning SG (Nicholson J at [124] and [140], Kourakis CJ and Anderson J disagreeing).
(5) The directions as to the cross-admissibility of…
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
AGLC
R v C, CA [2013] SASCFC 137
Case
[2013] SASCFC 137
Decision Date
CaseChat Overview and Summary
The appeal concerned the convictions of an appellant for sexual offences against three complainants: MG, SG, and MA. The appellant argued that the trial judge made errors regarding the admissibility and directions concerning evidence, particularly propensity evidence and evidence relating to different complainants. The Court of Appeal considered whether the evidence of offending against one complainant was admissible in the trial of charges relating to other complainants, and whether the jury directions on character evidence were adequate.
The central legal issues before the Court of Appeal were whether the trial judge erred in admitting evidence of the offending against SG in the trial of charges relating to MG and MA, and whether the directions given to the jury regarding the cross-admissibility of evidence between the counts involving the different complainants were erroneous. Additionally, the court examined the adequacy of the directions given to the jury concerning the appellant's evidence of good character.
The Court of Appeal allowed the appeal, quashed the convictions, and remitted the matter for retrial. The court found that the directions on the cross-admissibility of evidence between the counts relating to the several complainants were erroneous. Furthermore, the evidence of the offending against SG was wrongly admitted in the trial of the charges alleging offending against MG and MA. The court also noted that the directions on character evidence, while not the primary basis for allowing the appeal, could have been more comprehensive in line with established principles regarding the use of such evidence to bolster an accused's credibility.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The basis on which the appeal was allowed were: (1) the directions on the cross-admissibility of evidence between the counts relating to the several complainants were erroneous; and, (2) the evidence of the offending against SG was wrongly admitted in the trial of the charges alleging offending against MG and MA. My reasons follow.Background The appellant’s sexual offending commenced in or about 2000 and ended in approximately 2007. The three victims became acquainted and spent a considerable amount of recreational time with the appellant because he was the father of their childhood friend, KC. MG and SG are twin brothers born on 22 September 1989. They were raised by their mother alone. It was in or about 1999 or 2000 that MG and SG first met the appellant. At that time the appellant was living at a house in Hackham with his wife, step-daughter and son, KC. The twin brothers attended the same primary school as the appellant’s step‑daughter and son. It was through the friendship with KC, that the appellant came to spend time with, and, on the prosecution case, offend against, MG and SG. MA was born on 31 July 1991. MA first encountered the appellant in or about 2001 at the States Park Equestrian Centre in Onkaparinga Hills (States Park) which the appellant and his wife operated.[9] MA’s mother and sister agisted their horses at States Park and tended to their horses on most weekdays after school. MA would accompany them because he was too young to stay at home unsupervised. MA had no interest in horses, but over a period of time he too became friends with the appellant’s son, KC. It was as a result of that friendship that the appellant had the ability to associate with, and offend against, MA.[9] The evidence of the appellant was that he and his family moved to Cabernet Drive, Hackham (the Hackham house) in 1999 (T 478). In or around June or July 2000, the appellant and his family moved to the States Park residence (T 478). In about June or July 2003, the appellant and his family returned to live at the Hackham house (T 481). Two years later, in 2005, the appellant and his family moved to live at a property in Meadows (T 481).The testimony of SG SG was twenty-three years of age when he gave evidence. He became acquainted with the appellant’s family after his twin brother, MG, started “dating” the appellant’s step-daughter. He testified that he started going to the appellant’s house when he was about nine or ten years old, where he would watch movies and play eight-ball. SG gave evidence of occasions when the appellant would put on an adult movie in their presence. He also described a “game” based on eight-ball which the appellant played with him and the other children at both the Hackham house and the States Park residence. The game involved SG and KC dropping their shorts and doing a lap of the eight-ball table if they lost a match to the appellant. SG testified that he was aged around ten or eleven years at that time. SG also gave evidence of a visit to Maslin Beach when he was about the same age. Whilst at the beach the appellant, KC and SG went swimming naked.[10] The appellant did not deny swimming naked. The appellant’s evidence was that it was KC’s idea to swim naked and that KC and SG went into the water first. The appellant watched from the beach, only entering the water after the KC and SG had got out. [10] This evidence is inconsistent with evidence given by MG, his twin brother. MG testified that he was at Maslin Beach with the appellant, KC and SG. I refer to [17]-[18] ] below.
Evidence
Evidence Before The Court
Finally, contrary to the direction in paragraph 6, there was evidence of collusion to be found in the denials of the appellant, the support of his evidence by family members, and in the very similarity of accounts on which the prosecution relied. The Judge no doubt meant that there was no direct evidence that the complainants had got together to fabricate their accounts. However, the jury may well have taken the direction to mean that the possibility of collusion could be put aside because of the absence of any direct evidence of it.Character evidence The appellant gave evidence that he had not been arrested for any serious criminal offence. That evidence did put his character in issue for the purposes of s 18(1)(d) of the Evidence Act, but it was not character evidence strictly so called. However, he also called evidence from a number of witnesses who testified that he was held in high esteem in the community and was regarded as creditable. The Judge gave the jury the following direction on that evidence.Ladies and gentlemen, evidence has been placed before you as to the previous good character of [the appellant]. There was evidence from the accused himself that he has not been arrested for any other serious criminal offences. There was evidence from [GE], [MT], [TE] and [TL]. You should take this evidence into account when deliberating on your verdicts. It is true of course that persons of previous good character do commit crimes; nevertheless, an accused person’s previous good character has an undoubted bearing upon the probability or improbability of his having committed the crimes with which he is charged. The appellant makes two complaints about that direction. First, it is contended that the Judge erred in omitting any reference to the use of the character evidence to bolster the credibility of the appellant’s testimony. Secondly, it is argued that the inclusion of the word “probability” in the last sentence suggested that the character evidence was capable of showing that the appellant more probably committed the offences charged when the evidence could only be used in the appellant’s favour. The proper directions to be given when an accused adduces evidence of good character were considered in R v Trimboli.[59] In that case King CJ laid down the following propositions.1.It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.2.No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.3.The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.[59] (1979) 21 SASR 577.
Decision
Reasons for decision
KOURAKIS CJ
Whether or not the failure to do so in this case resulted in a miscarriage of justice is finely balanced. There is little to be gained by coming to a final conclusion on these grounds because there must be a new trial in any event. Hopefully the observations I have made will provide some assistance to the Judge presiding over the retrial in discharging his or her responsibility to sum up the defence case on the evidence and issues as they are presented at that hearing.Conclusion For the above reasons, the orders of the Court were previously made:1. Appeal allowed.2. The convictions on all counts are quashed.3. Remit the matter to the District Court. ANDERSON J: I agree that the appeal should be allowed for the reasons given by the Chief Justice. I agree with the orders proposed. NICHOLSON J: On 1 November 2013, I joined in the orders of the Court allowing the appeal and remitting the matter to the District Court for retrial. I agree in substance with the reasons of the Chief Justice subject to the following qualifications. I also gratefully adopt his Honour’s analysis of the evidence. I agree that the single count of indecent assault as alleged by SG (count 1) should have been tried separately from the other counts, all of which concerned either MG or MA. However, and where I depart from the position taken by Kourakis CJ, is that, in my view, the evidence of the complainants MG and MA is inadmissible in the Crown case concerning SG. A separate trial concerning count 1 (SG) should take place for this reason as well. As his Honour has pointed out, the question of whether or not separate trials should be conducted in a sexual offence case with multiple complainants is to be determined by reference to the question of cross-admissibility of evidence, as required by s278(2a)(b) of the Criminal Law Consolidation Act 1935. 278 – Joinder of Charges (1)Subject to the provisions of this Act, charges for two or more offences should be joined in the same information if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence on the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.(2a) Despite sub-section (2) and any rule of law to the contrary, if in accordance with this Act, two or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:(a) subject to paragraph (b), those counts are to be tried together;(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.(3)…(4)…The term sexual offence is defined in sub-section (4) for the purpose of sub-section (2a) in terms which capture all of the offences alleged in the information upon which the appellant was tried in this matter.