R v C, CN

Case [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…

Continue reading R v C, CN

Sign in free to access the full text

Details
AGLC
R v C, CN [2013] SASCFC 44
Case
[2013] SASCFC 44
Decision Date

CaseChat Overview and Summary

The applicant, R v C, CN, sought permission to appeal against convictions for persistent sexual exploitation of one child and indecent assault of another. The applicant contended that the jury's verdicts were unreasonable, unsafe, and unsatisfactory. Additionally, the applicant argued that the trial judge erred in admitting evidence of discreditable conduct, specifically the applicant's habit of exposing his genitals, and provided inadequate directions to the jury regarding its use.

The central legal issues before the court were whether the verdicts were unsafe or unsatisfactory, and whether the admission and direction concerning the discreditable conduct evidence constituted a miscarriage of justice. Specifically, the court had to consider the application of section 34P of the Evidence Act 1929 (SA) to the admissibility of discreditable conduct evidence and the adequacy of the trial judge's directions to the jury under section 34R of the same Act.

The Full Court of the Supreme Court of South Australia, comprising White, Peek, and Blue JJ, held that neither verdict was unsafe or unsatisfactory, acknowledging that inconsistencies in evidence were for the jury to resolve. However, the court found that the trial judge erred in admitting the discreditable conduct evidence. Section 34P required the judge to be positively satisfied of the probative value of such evidence substantially outweighing its prejudicial effect, and that its permissible use could be kept sufficiently separate from impermissible use. The judge's reasons did not demonstrate consideration of these requirements. Furthermore, the directions given to the jury regarding the genital exposure evidence did not comply with section 34R, as they permitted its use in relation to complainants for whom it was inadmissible.

Consequently, the court was unable to be satisfied that there had been no substantial miscarriage of justice. Permission to appeal was granted, and the appeal was allowed, with the convictions set aside and a retrial directed on those counts.

Orders

Orders of the court

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]).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

WHITE J
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).

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Full text does not contain this section.