R v C, CN - [2013] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, CN
[2013] SASCFC 44
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice Peek and The Honourable Justice Blue)
23 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION
The applicant was charged with sexual offences against five children - a jury convicted him on the count of persistent sexual exploitation of the second child and on the count of indecent assault of the fourth - the applicant seeks permission to appeal against both convictions - he contends first that the verdicts were unreasonable, unsafe and unsatisfactory, and secondly that the Judge erred in admitting certain evidence of discreditable conduct (namely that he was accustomed to exposing his genitals) and, having admitted it, by giving inadequate directions concerning it use.
Held (granting permission to appeal and allowing the appeal):
Per White J, Peek and Blue JJ agreeing:
(1) Neither verdict was unsafe or unsatisfactory - some inconsistencies and discordances in the evidence were almost inevitable, and were matters for the jury (at [71]).
(2) Section 34P of the Evidence Act 1929 (SA) must be considered and applied separately in relation to each charge in respect of which an item of discreditable conduct evidence is said to be probative (at [29]).
Per White J, Peek J agreeing, Blue J declining to express a view:
(3) Section 34P required the trial Judge to be positively satisfied that the conditions for admissibility of each item of discreditable conduct evidence existed, and the objection by the applicant to only one item did not relieve the Judge from applying s 34P in respect of all the foreshadowed discreditable conduct evidence (at [32]).
Per White J, Peek and Blue JJ agreeing:
(4) The Judge erred in not identifying the particular use or uses for which the evidence regarding the applicant's previous genital exposure could be admitted (at [35]).
(5) The Judge was required to be satisfied that the probative value of the evidence for an admissible purpose substantially outweighed its prejudicial effect, and that any permissible uses of the evidence were, and could be kept, sufficiently separate and distinct so as to remove any appreciable risk of the evidence being used impermissibly - the Judge's reasons do not indicate that he considered these matters as required by s 34P (at [37]-[39]).
Per White J, Peek J agreeing:
(6) It is unnecessary to express a final view on the Director's submissions that the trial Judge applied the discretion to exclude evidence otherwise admissible on the ground that its probative value is outweighed by its prejudicial effect ("the Christie discretion"), rather than s 34P - if the Judge did determine the matter as an exercise of the Christie discretion, then he would have been in error (at [42]).
Per Blue J:
(7) The trial Judge was not purporting to exercise the Christie discretion (at [80]).
Per White J, Peek and Blue JJ agreeing:
(8) The Judge's directions to the jury with respect to the discreditable conduct evidence regarding the applicant's genital exposure did not comply with the requirements of s 34R - that evidence could not be used in relation to the third and fourth complainants, yet the Judge's directions positively permitted the jury to use that evidence in their consideration of the charges involving those two complainants (at [47]-[49]).
(9) The Court cannot be satisfied that there has been no substantial miscarriage of justice in the two convictions (at [54]).
Criminal Law Consolidation Act 1935 (SA) s 50, s 56, s 278, s 352, s 353; Evidence Act 1929 (SA) s 34O, s 34P, s 34Q, s 34R; District Court (Criminal and Miscellaneous) Rules 1992 (SA) r IV-32.01, r IV-32.02, r IV-32.03; District Court Criminal Rules 2013 (SA) r 16.01, r 16.02, referred to.
Harris v Director of Public Prosecutions [1952] AC 694; R v Cashion [2013] SASCFC 14; Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; R v Christie [1914] AC 545; R v Lobban (2000) 77 SASR 24; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; Pfennig v The Queen (1995) 182 CLR 461; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; M v The Queen (1994) 181 CLR 487; R v Nguyen (2010) 242 CLR 491; SKA v The Queen (2011) 243 CLR 400, considered.

R v C, CN
[2013] SASCFC 44
Court of Criminal Appeal: White, Peek and Blue JJ

WHITE J. The applicant was charged with sexual offences involving five children. The jury could not reach a verdict on a charge of persistent sexual exploitation of the first child, AMC. The applicant was found guilty by majority verdicts of persistent sexual exploitation of the second child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA)[1] and of indecent assault of the fourth child, contrary to s 56 of the CLCA. The jury acquitted him unanimously on a charge of indecent assault on the third child, and acquitted him by majority verdicts of a charge of persistent sexual exploitation of the fifth child, and of the charged alternative offence of unlawful sexual intercourse with that child.
[1] Section 50(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
The applicant seeks permission to appeal against both convictions contending, first, that the verdicts were unreasonable, unsafe and unsatisfactory and, secondly, that the District Court Judge erred in admitting certain evidence of discreditable conduct and, having admitted it, by giving inadequate directions concerning its use. He contends that the jury may have used the evidence impermissibly. Ground 2 raises an error of law for which permission to appeal is not required.[2]
[2] Criminal Law Consolidation Act 1935 (SA), s 352(1)(a)(i).
Background
In relation to the child AMC, the alleged persistent sexual exploitation was said to have occurred between 1 January 1983 and 31 December 1992 when she was aged between 6 and 15. It was said to have comprised the applicant requiring her to touch his erect penis outside his clothing; requiring her to rub his penis when they were watching television together; exposing his erect penis to her; touching her vagina, sometimes on the inside of her clothing and sometimes outside; and inserting his finger into her vagina. These incidents were alleged to have occurred numerous times, although AMC could identify only a limited number of particular occasions. In addition, the prosecution alleged that on some four occasions the applicant had penile‑vaginal sexual intercourse with AMC. As already noted, the jury could not reach a verdict in relation to the charge of persistent sexual exploitation of AMC.
The persistent sexual exploitation of the second child, NJC, of which the applicant was found guilty, was alleged to have occurred between 1 January 1987 and 31 December 1994 when she was aged between 5 and 12. The conduct comprised a series of indecent assaults: the applicant rubbing NJC’s vagina over her knickers, and touching and rubbing her breasts over her clothing.
The charge involving the third child, CIC, was one of indecent assault when CIC was aged 9 and 11. It was said to comprise the applicant rubbing her vagina over the top of her clothing. He was found not guilty by unanimous verdict of this charge.
The indecent assault on the fourth child, SAL, of which the applicant was found guilty, occurred in 1988 or 1989 when she was aged between 11 and 13.[3] The applicant touched her on her breasts and on the outside of her vagina, under her clothing.
[3] This complainant’s name was shown incorrectly on the Information. The initials “SAL” are her correct initials.
The final complainant was JSC, the applicant’s own daughter. The applicant’s persistent sexual exploitation of her was alleged to have occurred between 1 January 1988 and 31 December 1993 when JSC was 3 to 8 years old. It was alleged that when drying JSC after a bath, the applicant would perform acts of cunnilingus. He was acquitted by majority verdicts on this charge and on the alternative charge of indecent assault.
The Director’s Discreditable Conduct Notice
Prior to the trial, the Director of Public Prosecutions filed a Notice of Intention to Adduce Evidence of Discreditable Conduct with respect to 13 different kinds of discreditable conduct. Three of those forms of conduct were particularised in multiple ways. The effect was that the Director gave notice of an intention to adduce evidence of 25 different items of conduct. However, at the trial this reduced to 20 because the Director did not pursue the foreshadowed intention to lead five of those items.
The discreditable conduct evidence was to be led from nine separate witnesses and was said to have seven different uses in the trial.
Counsel for the applicant opposed the admission into evidence of only one of the foreshadowed items of discreditable conduct. That was the evidence identified in subpar 1(h) of the Director’s notice, namely:
(h)evidence that [the applicant] would wear short cut shorts with no underwear so that [his] penis and testicles were exposed to the complainants.
I will refer to this as the “genitals exposure evidence”.
The trial Judge overruled the applicant’s objection, giving the following reasons:
In my view, the evidence is both highly relevant and admissible. In my view, there is [substantial] probative value in this evidence particularly, but not exclusively, with respect to the proposed evidence of [AMC]. I, recognising that there is potential for improper use, nonetheless admit the evidence and decline to exercise my discretion to exclude it. I will give the jury appropriate directions about its proper use and warn them against its misuse in due course.
(Emphasis added)
It was common ground at trial and on appeal that all of the evidence foreshadowed by the Director’s notice was “discreditable conduct evidence” within the meaning of s 34P of the Evidence Act.
Section 34P of the Evidence Act 1929 (SA)
Section 34P, which applied to the applicant’s trial, provides:
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
By s 34O of the Evidence Act, Div 3 of Pt 3 of the Act (of which s 34P forms part) applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility to the extent of any inconsistency.
In general terms, the effect of Div 3 of Pt 3 is to provide statutory regulation of the circumstances in which any evidence of discreditable conduct, other than evidence of the conduct alleged to constitute the charged offence, may be admitted in a criminal trial. “Discreditable conduct” is not defined in the Evidence Act, but s 34P(1) indicates that it may include conduct which is not itself unlawful.
The structure of s 34P is to prohibit altogether the admission and use of evidence of discreditable conduct for the purpose of indicating that a defendant is likely to have committed the charged offence because he or she has engaged in the discreditable conduct (subs (1)), and to permit its admission and use for other purposes only if certain conditions are satisfied (subs (2)).
In all cases in which the evidence of discreditable conduct may have a permissible use, it is to be admitted “if, and only if” the trial judge is satisfied that its probative value “substantially outweighs” any prejudicial effect (subs 2(a)). If the permissible use (or one of the permissible uses) for which the evidence is sought to be admitted relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue, the trial judge must in addition be satisfied that the evidence has “strong probative value” having regard to the particular issue or issues arising at trial (subs 2(b)). When determining whether the probative value of the proposed evidence outweighs any prejudicial effect, a trial judge “must have regard to” the extent to which the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any possibility of the evidence being used in that impermissible way (subs 3).
Section 34Q specifies that evidence which is not admissible for one use must not be used in that way even if it is relevant and admissible for another use.
The manner of expression of subs (2) indicates that a trial judge must be positively satisfied that the conditions for admissibility do exist: they are not matters for the parties’ agreement, nor are they matters which need not be addressed in the absence of formal objection by the opposing party. Section 34P(2) means what it says: the admission of discreditable conduct evidence is made expressly contingent on a trial judge’s satisfaction of the specified matters, and in forming the requisite satisfaction the judge must have regard to the matters specified in subs (3). A party’s consent, or an absence of objection, may assist a judge in reaching the requisite state of satisfaction, but they cannot be a substitute for that satisfaction. That does not preclude parties and the courts from adopting flexible procedures, eg, in a trial by judge alone, the parties may agree that the judge should hear the proposed evidence of discreditable conduct as part of the trial in order to facilitate a ruling on the admissibility of the evidence at the close of the prosecution case.
Section 34P(4) also contains an important procedural safeguard, in that it requires a party intending to adduce evidence of discreditable conduct to give reasonable notice in writing (in accordance with rules of court) to each other party to the proceedings. The purpose of the notice is obvious enough: to facilitate a determination of whether separate trials will be appropriate;[4] to ensure that the other parties to the proceedings and the court are put on notice that the admissibility of evidence of discreditable conduct will have to be addressed; and to facilitate the court dealing with the issue of admissibility in accordance with the preceding provisions of s 34P.
[4] See Criminal Law Consolidation Act 1935 (SA) s 278, in particular, s 278(2a).
Rules IV‑32.01 and IV‑32.02 of the former District Court (Criminal and Miscellaneous) Rules 1992 (SA), which applied to the applicant’s trial, required a notice by the Director to be in Form 25 and to be filed and served on all other parties to the proceedings no later than 21 days after the date on which the proceedings were listed for trial.[5]
[5] Now rr 16.01 and 16.02 of the District Court Criminal Rules 2013 (SA).
Rule IV‑32.03 also required a party intending to object to the admission of the proposed evidence of discreditable conduct to file and serve on all the other parties to the proceedings a written Notice of Objection using Form 27. No such Notice of Objection was filed in the present case.
The Application of s 34P in General
A number of issues arise as to the proper construction and application of s 34P, but it is not necessary to address them all for the disposition of the present appeal.
The application of s 34P requires a number of discrete steps and considerations by a trial judge. First, the judge must identify the use or uses for which the proposed evidence may be admitted. As was the case in the common law, there is no “closed list”[6] of the permissible uses of evidence of previous conduct of an accused, and s 34P does not purport to identify permissible uses. It does however contemplate that the intended use will be positively identified when the admissibility of the evidence is being considered. This is implicit in subs (2) and is, in any event, essential to the remaining steps. The Solicitor‑General, who appeared for the Director, acknowledged the necessity for a judge to identify at the commencement of the consideration of the admissibility of proposed discreditable conduct evidence the intended use or uses of the evidence.
[6] Harris v Director of Public Prosecutions [1952] AC 694 at 705.
Secondly, the judge must be positively satisfied that the probative value of the evidence for the permissible use or uses “substantially outweighs” any prejudicial effect it may have on the defendant (subs (2)(a)). In determining that issue, the judge “must have regard”, as required by subs (3), to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used impermissibly. The impermissible use to which subs (3) refers includes, at the least, use of the evidence to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct (subs (1)(a)).
Thirdly, if the identified permissible use or uses rely on a propensity or disposition of the defendant as circumstantial evidence of a fact in issue, the judge must be satisfied in addition that the evidence has “strong probative value” having regard to the particular issue or issues arising at trial (subs (2)(b)).
Finally, having admitted the evidence, a trial judge is required by s 34R(1) to identify and explain the purposes for which the evidence may, and may not, be used.
The sequential consideration just outlined may be applied most easily in those cases in which a defendant is charged with a single offence, although even in such cases, the consideration is required in relation to each allegation of discreditable conduct.

In the case of multiple charges, the process becomes more complex. In such cases, the Judge must make the assessment having regard to each count. Depending on the circumstances, this may require separate consideration of the proposed evidence in relation to each charge.
In the present appeal, the applicant contended, and the Solicitor‑General accepted, that s 34P had to be considered and applied separately in relation to each charge in respect of which the discreditable conduct evidence was said to be probative. There are a number of indications that this is correct.[7] It is implicit in the terms of s 34P(1) and in the underlying purpose of the section; the identification contemplated by subs (2) of the permissible uses implicitly requires separate consideration of each charge; the comparison of the probative value against prejudicial effect required by subs (2)(a) can be carried out only by a separate consideration of the charges against a defendant; and the effect of s 34Q[8] is to ensure that every use to be made of the discreditable conduct evidence satisfies the conditions for admissibility contained in s 34P.[9] This reflects the common law principle that, at least in general, courts are to reach their decisions on evidence which is legally admissible and to use evidence only for those purposes which the law allows.[10]
[7] As the second charge involving the complainant, JSC, was laid in the alternative, separate consideration of s 34P in relation to this count may not have been required.
[8] Section 34Q provides:
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
[9] R v Cashion [2013] SASCFC 14 at [31].
[10] Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 153.
The need for separate consideration in relation to each charge would apply with even greater force in a case (unlike the present) in which the prosecution relies on evidence of discreditable conduct as probative of propensity or disposition (subs (2)(b)).
Application of s 34P in the Applicant’s Trial
Once it is accepted that s 34P requires consideration of a series of matters, it becomes obvious that it was not applied properly in the present case.
First, the Judge’s ruling and the submissions which preceded it indicate that he considered s 34P only in relation to the genitals exposure evidence, and not at all in relation to the rest of the discreditable conduct evidence foreshadowed by the Director’s notice. The focus on the genitals exposure evidence is no doubt attributable to the fact that this was the only aspect of the foreshadowed evidence to which the applicant’s counsel made objection. However, as I have already indicated, the fact that the applicant objected only to the genitals exposure evidence did not relieve the Judge from applying s 34P in respect of the remaining evidence foreshadowed by the Director.
It is not necessary, for the disposition of this appeal, to address the consequence of evidence of some discreditable conduct having been admitted without objection.
Secondly, in relation to the genitals exposure evidence the Judge considered the various matters required by s 34P in part only.
The Judge did not identify, with respect to each count, the permissible use or uses of the genitals exposure evidence. In some respects, this was probably a consequence of the form of the Director’s s 34P notice and of counsel’s submissions. The Director’s notice was in effect a composite notice, as it did not particularise with respect to each count and each allegation of discreditable conduct the witness from whom the evidence was to be led and the use or uses of that evidence. Its composite form meant that it was not easy for the Judge to identify the particular uses in relation to each count for which the Director wished to lead the evidence.
The Judge did consider that the genitals exposure evidence had “substantial probative value” with respect to the anticipated evidence of AMC that, while sitting at the kitchen table with his penis exposed, the applicant would push her down under the table to perform an act of fellatio. The oral submissions of counsel for the Director at trial did identify a number of possible additional uses of the genitals exposure evidence. It was said that the applicant’s exposure could be “an aspect of [his] general relationship with the complainants”, or indicate that his conduct was “deliberate and conscious”, or could be assessed by the jury “as part of his sexual behaviour towards children”. The Judge himself suggested one possible further use. However, the Judge’s ruling did not identify the particular additional use or uses for which genitals exposure evidence could be admitted. This was, in my respectful opinion, an error.
In relation to the second step outlined earlier in these reasons, the Judge did not state his express satisfaction that the probative value of the genitals exposure evidence substantially outweighed its prejudicial effect. He did say that the evidence had “substantial probative value”, but this was at a level of generality as it did not involve an assessment in relation to each count. Had the Judge made that assessment, he would have had to conclude, at the least, that the evidence did not have any probative value at all in relation to the charges of indecent assault on CIC and SAL respectively. This is because the prosecutor did not propose to lead evidence that the appellant had exposed himself in this way in the presence of either of them, or that CIC and SAL were otherwise aware that he had done so.
In any event, satisfaction that the genitals exposure evidence had substantial probative value was only part of the necessary enquiry. The Judge was required to be satisfied that the probative value of the evidence for an admissible purpose, even if significant, substantially outweighed its prejudicial effect. That evaluation is distinct from the assessment of the strength of the probative effect of the evidence.
Again, there is no indication that the Judge considered, as required by s 34P(3), whether the permissible uses of any of the genitals exposure evidence were, and could be kept, sufficiently separate and distinct so as to remove any appreciable risk of the evidence being used impermissibly. The Judge’s brief reasons do indicate his recognition of the potential for improper use of the evidence, but not any consideration of whether the impermissible use could be kept sufficiently separate and distinct from permissible uses.
The Solicitor‑General acknowledged that the Judge had not applied s 34P as required. He submitted that the Judge had instead applied the R v Christie[11] discretion, ie, the discretion permitting a court to exclude evidence on the grounds that its probative value is outweighed by its prejudicial effect. This meant, he contended, that there had been no substantial miscarriage of justice, so that the proviso should be applied.
[11] [1914] AC 545 at 560.
The Solicitor may well be correct in contending that the Judge dealt with the matter as though it was an application of the Christie discretion. The Judge’s reference to a “discretion to exclude” is an indication that this is so.
In the view I take of the matter, it is not necessary to express a final view on this submission. It is appropriate to say however that, if the Judge did determine the applicant’s objection to the genitals exposure evidence as an exercise of the Christie discretion, then he would have been in error. Section 34P does not establish a statutory discretion to exclude evidence. Instead, it establishes the conditions for admissibility of evidence. Once those conditions are established, the evidence should be admitted, subject to the availability of any remaining judicial discretions of the kind discussed in R v Lobban.[12]
[12] [2000] SASC 48; (2000) 77 SASR 24.
Under the common law, the determination of the admissibility of evidence of previous conduct of an accused was separate and distinct from a determination of its discretionary exclusion. A judge was required to determine as a matter of law whether the evidence was admissible, not to exercise a discretion. This required a determination that the proposed evidence had a sufficiently high degree of probative value to outweigh the (probably) inevitable prejudice which would result from its admission. This was not a matter of discretion, although there were no doubt elements of discretionary judgment involved. It was only after a determination of admissibility had been made that issues of exclusion on discretionary grounds could arise. See Markby v The Queen;[13] Perry v The Queen;[14] Sutton v The Queen;[15] Pfennig v The Queen.[16]
[13] (1978) 140 CLR 108 at 117.
[14] (1982) 150 CLR 580 at 585, 604.
[15] (1984) 152 CLR 528 at 534, 547-8.
[16] (1995) 182 CLR 461 at 514-5.
Section 34P does not alter that position. On the contrary, subs (2)(a) makes it plain that a judge’s satisfaction that the probative value of the proposed evidence substantially outweighs any prejudicial effect is a condition of admissibility. This means that it is for the party seeking to adduce the evidence to satisfy the Court of the circumstances of its admission, and not for the resisting party to persuade the Court that exclusion on discretionary grounds is appropriate. To equate the assessment required by s 34P with discretionary exclusion would be to invert the process.
Further, given the terms of s 34P(2)(a), there will seldom (if ever) be any scope for the application of the Christie discretion once a judge is satisfied, in accordance with subs (2)(a), that the probative value of the evidence substantially outweighs its prejudicial effect.[17] That is because the probative value versus prejudicial effect assessment is made when a judge is considering whether the statutory conditions for admission are established, and not when considering whether otherwise admissible evidence should be excluded.
[17] Cf Pfennig v The Queen (1995) 182 CLR 461 at 515.
There is a further reason why the judgment required by subs (2)(a) cannot be equated with discretionary exclusion at common law. Section 34P requires a judge to have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used impermissibly. This is not the only matter which may bear on a judge’s assessment under subs (2)(a), but the expression “must have regard to” indicates that the ability to keep the permissible and impermissible uses separate and distinct must be a fundamental consideration in a judge’s decision; that is, it is a matter to which a judge must advert specifically.[18]
[18] R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.
Finally, the Judge’s directions to the jury with respect to the genitals exposure evidence did not comply with s 34R. That provision required him to explain to the jury the purpose for which the evidence may and may not be used. The Judge gave the following direction:
One of the themes of this case ... relates ... to the accused allowing his genitals to be exposed from time to time in the presence of not only adults but children. That has a very limited relevance to this case. On the prosecution case it is relevant to the accused grooming the complainants for sexual activity. It is on the prosecution case a desensitising of them or a conditioning of them to literally have exposure to his genitals. That is the only potential relevance of that evidence. If you find that it does not or if you think it does not have that effect, that it is not evidence of grooming of the complainants for sexual activity or desensitising or conditioning them, then it is irrelevant to the case and you must ignore it.
The effect of this direction was to inform the jury that the genitals exposure evidence could be regarded as evidence of the applicant’s “grooming the complainants” for sexual activity, or as desensitising them, or as a conditioning of them to exposure to his genitals, and that it could not be used for any other purpose.
Given the absence of specific evidence that the applicant had ever exposed his genitals in the presence of the complainants CIC and SAL, or that either of them was otherwise aware that he did at times expose his genitals, the evidence could not be used to indicate grooming, desensitising or conditioning of them. Yet not only did the Judge’s direction not make this plain to the jury, it positively permitted the jury to consider that the evidence could be used in this way in their consideration of the charges involving those complainants. In this way, the direction did not comply with the requirements of s 34R.
Further, in my respectful opinion, the Judge’s use of the word “grooming”, without any explanation of its meaning, was unfortunate. That is because it may have been understood by the jury as indicating conduct by the accused for the purpose of facilitating future sexual activity, rather than conduct which, although not engaged in for that purpose, nevertheless had the effect of conditioning the complainant to exposure to the applicant’s sexual organs. The fact that the Judge differentiated grooming conduct, on the one hand, from desensitising and conditioning conduct, on the other, may have added to the jury’s misunderstanding.
I conclude that the Judge did not comply with s 34P in a number of significant respects. I add, in fairness to the Judge, that counsel at trial did not draw his attention to a number of the matters discussed in these reasons. It is unfortunate that this is so. However, the applicant was entitled to a trial conducted according to law. It is apparent that he did not receive such a trial.
Before leaving this discussion of s 34P, I mention one further matter. As already seen, the principal reason for the Judge’s admission of the genitals exposure evidence was its potential probative value in relation to AMC’s claim that the applicant would push her under the table to perform an act of fellatio. As it happened, AMC, who was the first of the complainants to give evidence, did not mention any such incident or incidents. In that circumstance, it would have been appropriate for the Judge to have reviewed his admissibility ruling at the conclusion of AMC’s evidence. However, he was not asked to do so, and two of the other complainants, NJC and JSC, then gave evidence of the applicant’s behaviour in exposing his genitals.
The Proviso
The Solicitor‑General submitted that, despite the Judge’s failure to apply s 34P correctly, this Court could be satisfied that no substantial miscarriage of justice had occurred and accordingly that the proviso could be applied at least in relation to Count 2. The Solicitor acknowledged that the proviso could not be applied to the conviction on Count 4 involving SAL, because the jury had been permitted incorrectly to regard the genitals exposure evidence as probative of that charge.
In my opinion, the shortcomings identified in the above reasons mean that this Court cannot be satisfied that there has been no substantial miscarriage of justice in the conviction of the applicant on the count involving NJC. That is because, had s 34P been applied properly, the genitals exposure evidence may have been excluded altogether.
This means that, subject to consideration of Ground 1, the appeal should be allowed and a retrial on Counts 2 and 4 ordered.
Unsafe and Unsatisfactory
The principles upon which this Court acts when considering whether a jury verdict is unreasonable or unsafe and unsatisfactory are well settled: see M v The Queen;[19] R v Nguyen;[20] and SKA v The Queen.[21] It is not necessary to review those principles in these reasons.
[19] (1994) 181 CLR 487 at 492.
[20] [2010] HCA 38 at [33]; (2010) 242 CLR 491 at 499-500.
[21] [2011] HCA 13 at [11]-[14]; (2011) 243 CLR 400 at 405-6.
Count 2
The applicant claimed that there were inconsistencies and discordances in the evidence of NJC which made his conviction on Count 2 unsafe and unsatisfactory. Counsel referred to the following matters:
(1)NJC said that after one incident in which the applicant had touched her on her vagina, she had tried to tell her mother, RC. RC had been dismissive and she (NJC) had then used a cigarette lighter to light a fire in RC’s bedroom causing considerable damage. RC did not give any evidence at all concerning a fire in her bedroom.
(2)The evidence concerning NJC’s complaints about the applicant’s conduct was said to be “unclear and inconsistent”. NJC said that she and AMC had told a police officer, on the day of her 10^th birthday, that the applicant was touching them inappropriately. She said that she could not recall telling RC about his conduct before that occasion, and thought that the police had attended at her home because of a report made by her uncle. RC said that the police attended because she had called them following a complaint made by AMC to her. She could not recall whether NJC had also complained at that time. When the police attended, each of AMC and NJC had hidden in a bedroom and had refused to speak to them. Accordingly, the report and investigation did not go any further at that time. RC also described a complaint made by NJC in the 1980s, but could not recall whether it was the same or a different occasion from when the police were called.
(3)NJC could not be precise as to when the incidents of inappropriate conduct by the applicant had occurred. She said that his conduct had commenced when she was about five years old and had continued until she was 19 years. She said that it occurred “pretty much every time I was on my own with him” and “more than two times” when she was travelling in the front seat of his car.
(4)A witness, SLC, said in cross‑examination that when NJC was an adult, she had told her that she had gone into a caravan at the applicant’s home and had had sex with him until they were interrupted by the applicant’s son. NJC, on the other hand, could not recall any such conversation with SLC and denied ever having sex with the applicant in the caravan.
In my opinion, these matters, whether considered individually or in combination, do not indicate that the conviction of the applicant on the charge involving NJC is unsafe and unsatisfactory.
As to the first matter, RC was not asked any questions at all about NJC lighting a fire in her bedroom. There is accordingly no inconsistency, and it is quite possible that RC has never been alerted to a possible link between the lighting of the fire, on the one hand, and NJC’s attempt to tell her of the applicant’s conduct, on the other.
There does not seem to be any necessary inconsistency between the evidence of NJC and RC as to whether NJC had made a complaint about the applicant’s conduct before the police attendance on NJC’s 10^th birthday. All each of them said was that they could not recall such a complaint being made.
There is, however, some inconsistency in the evidence about a complaint by NJC to the police on the occasion of her 10^th birthday. A police officer who attended at the home of RC, AMC and NJC in the late 1980s and early 1990s for various matters did not recall any allegations of sexual abuse being made, and the police patrol logs made at the time could not be located. This gave rise to the possibility that NJC may have been mistaken in saying that she did make a complaint on the occasion of her 10^th birthday and that RC may be mistaken in thinking that she had called the police following a complaint by AMC.
However, these were matters for the jury to consider along with the other evidence. The jury did not have to accept all of NJC’s evidence. If the jury did accept the police officer’s evidence and the inferences arising from it, it may well have considered that she was mistaken in her memory of reporting the applicant’s conduct to the police at that time, but that in other respects her evidence was reliable.

As to the third matter identified by counsel, it is not unusual for a complainant to be unable to recall the occasions or incidents in which particular acts occurred. In fact, this circumstance is contemplated by s 50(4) of the CLCA.[22] Further, NJC did identify one occasion upon which the applicant’s conduct had occurred (when AMC was on holidays in Mintabie); and did identify particular places at which it had occurred, even though she could not link these to particular occasions.
[22] Section 50(4) provides:
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)     subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)     the alleged conduct comprising the acts of sexual exploitation;
(b)    the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)     the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
However, generally there is some force in the applicant’s submission that, having regard to the large number of incidents described by NJC, the lack of identification of particular occasions is surprising. In this respect, it is necessary to keep in mind that the incidents described by NJC occurred, for the most part, when she was very young; aged between 4 and 12. Some lack of memory is therefore understandable. NJC did say that some conduct continued until she was 19. However, it is apparent that she was then describing an occasion when the applicant importuned her for sex in her own home at a time when she was five and a half months pregnant. She was not describing a course of continuing conduct by the applicant until she was 19 years old and therefore occurring at a time when she could have been expected to have a better memory.
In my opinion, the inability generally of NJC to identify particular incidents or occasions was a matter for the jury’s consideration, but not a matter which precluded the applicant’s conviction on Count 2.
The inconsistency between the evidence of NJC and SLC was also a matter for the jury’s consideration. The existence of the inconsistency did not mean that it was not open to the jury to find the charge involving NJC proved. The jury’s attention was drawn to the inconsistency and they may well have considered that it was SLC whose evidence was unreliable.
Finally, it is to be noted that AMC’s evidence provided some corroboration for that of NJC.
Count 4
The applicant contended that the verdict on Count 4 was unsafe and unsatisfactory because, on SAL’s evidence, the indecent assault could not have occurred when she said it had. SAL said that the indecent assault occurred when she was 12-13 years old, sometime between 1988 and 1990, and after she had heard of the applicant’s inappropriate touching of AMC. However, the evidence of AMC and of another witness, SC, suggested that SAL could not have learnt of the applicant’s conduct involving AMC until much later, ie, in the second half of 1991.
In my opinion, this “disconnect” as counsel described it, does not make the verdict unsafe or unsatisfactory. In the first place, it was open to the jury to accept the evidence of SAL on the topic and not that of AMC and SC.
Secondly, the applicant’s counsel drew the attention of the jury to the “disconnect” in his final address, and it is open to infer that, despite the criticism, the jury accepted SAL’s account of both what had occurred and when it had occurred as reliable. Alternatively, the jury may have accepted SAL’s account of the incident as reliable but considered that she was mistaken as to the timing of its occurrence. The date and time on which the offence was said to have occurred was not a material particular which had to be established beyond reasonable doubt.
In my opinion, neither verdict should be described as unsafe or unsatisfactory on these bases. On the contrary, the fact that the jury returned different verdicts on several of the counts indicates that it gave close attention to the evidence and to its task. The nature of the charges, the young ages of the complainants at the time of the applicant’s alleged conduct, and the time which elapsed between the alleged conduct and the trial, made it almost inevitable that there would be some inconsistencies and discordances in the evidence. These were matters for the jury’s consideration and, in the circumstances of this case, do not make the jury’s verdicts unsafe or unsatisfactory.
Conclusion
I would allow the appeal and set aside the convictions on Counts 2 and 4. I would direct a retrial on those counts, leaving it for the District Court to determine whether there should be separate trials.
PEEK J: I agree with the orders proposed by White J and with his reasons.
BLUE J: I agree with White J, subject to one reservation and one additional matter.
The reservation relates to the question whether the trial Judge erroneously failed to apply section 34P by not addressing in his ruling proposed discreditable conduct evidence to which no objection was taken by the defendant (“Unchallenged Evidence”). The only objection taken at trial was to the genitals exposure evidence the subject of paragraph 1(h) of the Discreditable Conduct Notice. Ground 2 of the Notice of Appeal was confined to paragraph 1(h). No contention was made by the appellant on the hearing of the appeal that the trial Judge erred in relation to any other evidence of discreditable conduct. It was not identified on appeal what other discreditable conduct evidence was ultimately adduced at trial. The Court did not have the assistance of argument on this question.
If the applicant had argued on appeal that the trial Judge erred in admitting Unchallenged Evidence, the first question to arise would be whether on the proper construction of section 34P(2) a trial judge is required to exclude evidence falling within the definition of discreditable conduct evidence when no objection is taken to its admission unless the judge is affirmatively and objectively satisfied after full consideration that the criteria are satisfied. There are numerous sections of the Evidence Act 1929 (SA) which are also expressed in mandatory language.[23] It is arguable that some or all of these provisions proceed on the assumption that objection is taken to admission of the evidence. If such provisions were construed so as to require the trial judge to be affirmatively and objectively satisfied that the criteria for admission of evidence are satisfied notwithstanding no objection is taken to it, various consequences would follow. Most of those provisions do not require advance notice to be given of intention to adduce the evidence. Even where advance notice is required (as is the case under section 34P(4)), there is a possibility that the notice will not come to the attention of the trial judge or that evidence will be adduced without notice having been given. A trial judge would need to be constantly astute to detect questions which might result in the adducing of discreditable conduct evidence (or any other evidence governed by other provisions of the Act requiring mandatory satisfaction of the trial judge before admissibility) and then intervene before the witness answers notwithstanding no objection is taken to the question. In the presence of a jury, this may introduce additional complications. Ultimately, the conclusion might be reached that the mandatory terms of the Act require a trial judge to be objectively and affirmatively satisfied of the criteria notwithstanding that there is no objection, but I consider it is preferable that full argument be heard on the question before deciding the point.
[23] See, for example, ss 13D(1), 18(1)(d), 30, 34C, 34CA, 34J(3), 34K(1), 34KA(1), 45B(2), 45C, 47(2), 59B(2).
The second question which would arise would be whether admission of discreditable conduct evidence in the absence of objection without the trial judge being objectively affirmatively satisfied of the matters set out in section 34P(2) is a wrong decision on a question of law within the meaning of section 353(1) of the Criminal Law Consolidation Act 1935 (SA) (leading to a setting aside of a verdict unless the proviso is applied) or alternatively comprises a potential miscarriage of justice to be assessed in all of the circumstances of the case.
The third question which would arise, depending on the answer to the first two questions, would be whether the applicant’s counsel made a forensic decision not to object to the Unchallenged Evidence and, if so, whether in all of the circumstances the applicant ought to be held to that forensic decision.
For the above reasons, I prefer to express no opinion on the question whether the trial Judge erred by not considering the application of section 34P to the Unchallenged Evidence.
The additional observation relates to the Solicitor‑General’s contention that, when the trial Judge said “[I] decline to exercise my discretion to exclude it”, he was not turning his mind to section 34P but rather was considering whether or not to exercise the general residual discretion to exclude evidence otherwise admissible on the ground that its probative value is outweighed by its prejudicial effect (the Christie discretion[24]). I reject the Solicitor‑General’s contention. In argument before the trial Judge, counsel for the appellant expressly referred to section 34P, quoted from subsection 34P(2)(a) and submitted that the proposed evidence had no probative value and had significant potential prejudicial effect. Counsel for the Director in argument identified the probative value of the evidence and effectively argued that any potential prejudice would be minimised by a direction along the lines of section 34P(1)(a) that the jury should not use the evidence to conclude that the appellant had committed offences merely because he had engaged in the discreditable conduct.
[24] R v Christie [1914] AC 545.
Against this background, in referring in his ruling to the evidence being “highly relevant” and having “substantive probative value”, the trial Judge was referring to the first element to be weighed in the scales under section 34P(2)(a). In referring to the “potential for improper use”, the trial Judge was referring to the second element to be weighed in that process. In referring to declining to exercise his discretion to exclude it, the trial Judge was erroneously reversing the burden of persuasion required for admissibility by section 34P(2)(a). The trial Judge failed to carry out the balancing exercise in the manner required by that subsection and assess whether the probative value (which required identification of the permissible uses, their relevance and probative value) “substantially outweigh[ed]” any prejudicial effect (which required identification of the potential prejudicial effect and its seriousness). However, he was not purporting to exercise the general residual (Christie) discretion.