R v C, J - [2012] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, J
[2012] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Stanley)
2 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - EVIDENCE OF CHILD
Appeal against conviction – appellant charged with one count of indecent assault and one count of aggravated indecent assault – whether trial judge erred in directing the jury that the two counts “stand or fall together” - whether the judge failed to identify the evidence that related to each count – whether the judge failed to identify inconsistencies in the evidence – whether the jury was adequately directed in terms of the evidence regarding lack of opportunity to commit the offence– whether a sufficient warning was given to the jury regarding the evidence – whether verdicts were unreasonable and not supported by evidence.
Held: Appeal allowed – trial judge erred in directing the jury that the two charges “do stand or fall together” – re-trial ordered – all other grounds of appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) s 12A, referred to.
R v Tedesco (2003) 85 SASR 66; KRM v The Queen (2000) 206 CLR 221; R v Von Heytmanek (2006) 96 SASR 97, discussed.

R v C, J
[2012] SASCFC 11
Court of Criminal Appeal: Doyle CJ, Anderson and Stanley JJ

DOYLE CJ. I would allow the appeal, set aside the convictions, and order a retrial. I agree with the reasons of Anderson J for so deciding. There is nothing that I wish to add.
ANDERSON J.
Introduction
The appellant was found guilty by a jury on one count of indecent assault and one count of aggravated indecent assault against Ms C, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The appellant appeals against both convictions. Permission to appeal was granted by a single judge of this court. The issues on the appeal relate to some aspects of the summing up by the trial judge. The main point argued was whether the judge erred as a matter of law in telling the jury that, “the two charges do stand or fall together”.
The appellant was originally charged on information with the offence of gross indecency and aggravated indecent assault.
The prosecution amended count 1 at trial to allege an indecent assault. Count 2 is an aggravated offence because the CLCA was amended so as to apply to offences committed on and after the commencement of the amending Act on 15 May 2006. The legislation provides that an offence was aggravated if the victim, at the time of the offence, was under 14 years of age.
Background
The appellant is the uncle of Ms C. The appellant was aged about 48 years and his niece was aged about 11 at the time of the alleged indecent assaults. The appellant and his family had lived in a country town from 2004 to mid December 2007, when he and his family moved to another town in the same general area of the State.
The first count of indecent assault occurred at some time between January 2006 and December 2007. Ms C stayed overnight at the appellant’s house without her parents. The appellant’s son was home and was about 9 years of age. The appellant’s wife gave evidence that she was at home on each occasion that Ms C stayed at her house. Ms C said the appellant’s wife was not at home. Ms C said that at some stage during the night she woke to find the appellant in the bedroom in which she was sleeping. In her examination-in-chief Ms C said that she was at the time wearing gold boxer shorts with underpants underneath. Earlier, on 18 June 2010, Ms C told police that she was wearing flannelette pyjamas with underpants underneath. Ms C claimed that the appellant touched her in the area of her vagina on her skin. In cross-examination Ms C agreed that she told police, in her statement of 18 June 2010, that the appellant had touched her on the outside of her pyjamas. Ms C said that the appellant asked Ms C if she wanted to sleep with him in his bed. Ms C did not reply to the appellant’s offer, pretended to be asleep, rolled over and eventually the accused left the room. Ms C did not tell her parents about the incident.
The events that comprised the second count of aggravated indecent assault occurred between January 2007 and December 2008. The appellant and his family had moved by that time to another country town. Ms C said that she again stayed overnight at the appellant’s house. The appellant’s wife and son were present in the house at the time but the appellant’s daughter was not. During the night, Ms C woke to find the appellant in the bedroom she was sleeping in and touching her over the top of her underpants in the area of her vagina. Again, Ms C did not tell her parents.
Ms C complained to her friend, J, about a month or two after the second count when she was in year six, which was about 2008. J said that Ms C told him that the appellant had come into her bedroom but she was too scared to do anything, and that she pretended to be asleep and he touched her. J gave evidence that Ms C did not tell him where the appellant had touched her. J also gave evidence that Ms C had told him that when the appellant came into the bedroom he was holding a knife. However, Ms C denied she told J that that had happened.
Ms C did not make a statement to the police until 18 June 2010.
In relation to the evidence of Ms C there was contradictory evidence as to the appellant’s opportunity to commit the crime alleged in count 1. Ms C said the offence occurred when the appellant’s wife was away overnight at a conference in another country town. She specified which town.
The appellant said that Ms C never stayed at his home when his wife was not also present. The appellant’s wife gave the same evidence. Ms C’s mother gave evidence that the appellant’s wife was present when her daughter stayed with the appellant on the second occasion. She did not recall the exact circumstances of the first occasion.
There were in addition other inconsistencies in the evidence of Ms C which form the basis of ground 7 of the appeal in this matter.
Grounds of appeal
The grounds of appeal are as follows:
1.     The learned trial judge failed to give the jury an appropriate warning in relation to the evidence of the complainant, CG.
2.     The learned trial judge failed to adequately direct the jury regarding the prior inconsistent statements of CG.
3.     The learned trial judge failed to adequately direct the jury in terms of the evidence about the applicant’s lack of opportunity to commit the offence alleged in count 1.
4.     The learned trial judge failed to adequately direct the jury concerning the evidence of complaint made by CW and in particular failed to relate the complaint to a particular count or direct the jury as to how it could be used as evidence of consistency or inconsistency of conduct.
5.     The learned trial judge erred in directing the jury that the two counts stand or fall together.
6.     The learned trial judge failed to adequately direct the jury in terms of the evidence relating to each count.
7.     The verdicts are unreasonable or cannot be supported having regard to the evidence.
Summary of arguments on appeal
I will deal with ground 5 first because this ground was the main focus of counsel in their arguments on appeal.
Ground 5
This appeal ground relates to the trial judge’s direction to the jury in relation to how the two charges should be considered. Her Honour states at page 5 of her directions:
In this case, ladies and gentlemen, there are two charges. You should consider the two charges separately. There are two separate incidents, however, you may think that the evidence is such that if you had a doubt about one count, ladies and gentlemen, that the events occurred as described by [Ms C], then that may be relevant to your consideration of the other charge and vice versa.
So to put it another way ladies and gentlemen, you might think the two charges do stand or fall together in this case…
It is the second paragraph that raises the primary issue in this appeal, namely, whether the comment that the two charges “stand or fall together” is a misdirection of law.
Ms Chapman SC for the appellant argued that this was a misdirection to the jury which has lead to a miscarriage of justice. She argued that the direction gave rise to the possibility of the jury engaging in propensity reasoning.
Ms Chapman submitted that the trial judge erred in not giving an adequate “separate consideration” warning. She argued that a “separate consideration” warning would have been sufficient to prevent propensity-type reasoning and thus negated the need for a separate propensity warning. She relied on R v Tedesco (2003) 85 SASR 66 at 10 where the trial judge’s separate consideration warning to the jury is set in the reasons of Doyle CJ:
Each count, because it charges a separate offence, must be treated separately upon its merits. When ultimately you return your verdicts, you will be asked, successively in relation to each count, whether you find the accused guilty or not guilty of that count. It does not follow that, where an accused is charged with more than one count, simply because you might be satisfied of guilt on one offence, that the accused is also guilty of any other offence. And, equally, it does not follow that because you might find the accused not guilty on one offence, he should be found not guilty on another. The charges do not stand or fall together.
[My underlining]
Ms Chapman contends that the present case is on all fours with the principles enunciated in Tedesco, in the sense that there is one complainant and multiple counts. She referred to Doyle CJ at 18 where His Honour sets out the statement of McHugh J in KRM v The Queen (2000) 206 CLR 221, where McHugh J said at 36:
It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a 'separate consideration warning'). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside.
Ms Chapman referred also to R v Von Heytmanek (2006) 96 SASR 97 at 16 per Vanstone J. There Her Honour sets out the impugned direction given by the trial judge as follows:
(a) So there remains two counts for you to consider and both of those counts are alleged offences of rape. Each of those two counts charges a separate offence, and each of them you must treat separately upon its merits. When ultimately you return your verdicts you will be asked in relation to each of those counts whether you find the accused guilty or not guilty of that particular charge. It does not follow that because the accused is charged with two offences, simply because you may be satisfied of his guilt of one of them, that he is therefore guilty of the other. In the same way it does not follow that, because he has pleaded guilty to common assault, he is guilty of one or both offences of rape. The charges, ladies and gentlemen do not stand or fall together. You must consider each of the charges separately.
(b)[omitted]
(c)So, ladies and gentlemen, you may find the accused guilty of one count and not guilty of the other count of rape, or guilty of both counts, or not guilty of either count. You must consider each of the two offences separately by looking at the evidence offered in support of each of the two charges of rape.
Her Honour in fact found that the direction given was too favourable to the appellant in relation to (b) which I have not included. It makes the point as to the need for a “separate consideration warning” in the paragraphs set out above.
Ms Chapman relies on the above authorities in accepting that if a separate consideration warning is given, a separate propensity warning is not necessary in cases where there are multiple counts and one complainant.
In this matter the judge did not give a full “separate consideration warning” and indeed directed the jury to the opposite effect by her use of the words “the two charges do stand or fall together”.
During argument, in answer to a question from the bench, Ms Chapman agreed that the second paragraph must be read in conjunction with the first paragraph. However, she submits that even though it is the last sentence of the second paragraph which is an error of law, the first paragraph also raises multiple ambiguities. First, she submits that the words “vice versa” carried the risk of either being interpreted narrowly or broadly, and secondly she submits that in this passage Her Honour was referring to the evidence as opposed to an adverse finding as to credibility or reliability.
Ms Chapman submits that even if the second paragraph is an attempt to paraphrase the first, it is inaccurate and an error of law. The two charges “do not stand or fall together”.
Ms Wildman for the Director submits that in relation to the statement that “the two charges do stand or fall together”, Her Honour’s comment needs to be read in conjunction with the preceding paragraph where the jury were directed to consider the charges separately.
Ms Wildman argues that there is no suggestion that the evidence in relation to each count could be used for a positive purpose, no such reasoning was open and therefore there was no danger that the jury would indulge in propensity reasoning.
Ms Wildman submitted that the trial judge’s reference to “vice versa” did not open the potential for the jury to consider the evidence in a positive way. She argues that the judge’s comments did not go far enough to mislead the jury. She submits that the judge was directing the jury that an adverse finding as to credibility and reliability on one count would be relevant to the other count.
Ms Wildman concedes that the first paragraph could have been expressed differently but maintains that part of the direction was favourable to the appellant, which was emphasised by the opening words of the second paragraph.
It is my view that the statement that “the two charges do stand or fall together” is a misdirection. Had it been a statement only relating to the charges falling together it would have been favourable to the accused. Had it been to the opposite effect, namely, that the charges did not “stand or fall together”, it would have been a correct direction (my underlining).
Likewise had the direction only included the first paragraph, it is arguable that it would have been correct. It may be that all Her Honour was attempting to do in paraphrasing the first paragraph was to inform the jury that if they had doubts about the credibility of the complainant on one count it was also a matter to consider on the other count.
Unfortunately the use of the words “vice versa” at the end of the first paragraph creates the risk that the jury might reason that if they do not have a reasonable doubt on one count then they should not have such a doubt on the other count.
Had it not been for the words “the two charges do stand or fall together”, I doubt whether the jury could have been misinformed by the first paragraph.
Unfortunately Her Honour’s attempts to assist and clarify the matter for the jury have resulted in a misdirection which in my view means that the appeal should be allowed on this ground and a re-trial ordered.
The other grounds of appeal
(i) Inconsistencies and lack of opportunity
Because of my conclusion regarding count 5, which was the main ground argued by the appellant, I will now deal with the other grounds of appeal briefly. Grounds 2, 3 and 6 were effectively argued together. The submission of Ms Chapman is that the judge failed to identify the evidence related to each count and failed to identify the inconsistencies in the evidence of Ms C.
The judge did refer to the inconsistencies at page 8 of the summing up. She said:
But I remind you that [J] agreed in cross-examination that [C] told him that when her uncle came into the room she said that [T] was in the bed with her, that they were in the bed together. And he also agreed, this is [J] agreed, that he was told by [C] that she thought that her uncle had a knife when he came in.
Now, of course those things are inconsistent with [C’s[ evidence and you should carefully consider those matters when you are assessing [C’s] reliability and credibility.
In particular Her Honour told the jury that they were required to examine Ms C’s evidence carefully because of the inconsistencies and that they had to be satisfied beyond reasonable doubt as to Ms C’s reliability and credibility: see summing up page 10 where Her Honour said:
… is that inconsistency between the evidence of [C] and that of the other witnesses such that you find her evidence unreliable such that you are not able to be satisfied about its truthfulness and reliability beyond reasonable doubt?
Likewise, it is my view that the judge correctly directed the jury as to the appellant’s lack of opportunity to commit the offence charged in count 1. Her Honour made the comment at summing up page 10:
Another important inconsistency between [C] and the other evidence is that [C] said that the incident at [S] occurred when [V] was away overnight at [W]. That is inconsistent, you might think, with the evidence of other witnesses. It is suggested that it is inconsistent with the accused’s evidence, with [V’s] evidence and even with her mother, [G’s] evidence. Is it possible, ladies and gentlemen, that she has mixed up the occasion of when this touching occurred but she remembers the essential truth of it?
In my view the judge was entitled to make such a comment. It was open on the evidence that Ms C had made a mistake as to the exact whereabouts of the appellant’s wife on the night in question in count 1. It is my view that the jury was properly directed in relation to the inconsistencies, including the lack of opportunity.
(ii) The complaint
In relation to the complaint to J, which is appeal ground 4, the appellant submitted that the judge did not isolate whether the complaint to J was related to either or both of counts 1 and 2, and in addition how, in turn, it could be consistent with the evidence of Ms C.
I will set out the relevant directions in full. They are in the summing at page 8:
In this case [C] said she told her friend [J] that the accused touched her and, as I have said, that was said about a month or two she said after the last incident. The evidence in relation to [C’s] complaint to [J] is before you to inform you as to how the allegation first came to light. And it is also before you as evidence of the consistency or inconsistency of the conduct of [C]. It is not evidence of the truth of what was said between [C] and [J].
I direct you that there might be very good reasons why an alleged victim of a sexual offence, you might think particularly so for a child, has made a complaint at a particular time or to a particular person.
Ladies and gentlemen, you might think that as a matter of commonsense that that observation can be made about any such situation. Under the circumstances it is a matter for you to consider how this matter came to light in all of the circumstances. It is also a matter for you to determine the significance, if any, of the complaint. If you find that that is what it was to [J]. And you will remember that neither [C] nor [J] were very specific about what was said, and whether it is consistent with the conduct alleged by [C].

The evidence of complaint is relevant to show how the allegations were first made, whether there was consistency of conduct by the complainant, and such evidence was relevant to both offences because the complaint was made after the second offence and takes into account the total conduct alleged against the appellant.
The complaint to J was admissible and relevant evidence and properly admitted by the judge. The direction given by Her Honour was appropriate and in particular Her Honour here and elsewhere reminded the jury of the inconsistencies in Ms C’s evidence relating to her complaint to J.
(iii) Was a warning required
Ground 1 is that the judge did not give a sufficient warning to the jury regarding the evidence of Ms C. Her Honour said in her summing up at page 11:
You would still need to examine the evidence very carefully with respect to [C], especially in light of those inconsistencies, if you find them to be such, and be satisfied beyond reasonable doubt of [C’s] reliability and credibility.
Her Honour had also told the jury that the prosecution case relied on the complainant’s evidence. Her Honour said in her summing up at page 4:
… the case for the prosecution, relies on [C].
The jury was also told this by both counsel in their addresses to the jury.
In my view the judge gave the appropriate warning. There was really no other warning which the judge could have given, especially in view of s 12A of the Evidence Act 1929 (SA). No warning was requested. The complainant was a child. There could be no warning that it was “unsafe to convict”.
(iv) Are the verdicts reasonable
Finally in relation to ground 7, which asserts that the verdicts are unreasonable and cannot be supported by the evidence, in my view that appeal ground also fails.
It is my view that all the matters relevant to a consideration of this ground of appeal have been covered elsewhere in the grounds of appeal, and in view of the conclusion I have come to in relation to count 5 I do not intend to say more. For the reasons expressed on those other grounds, this ground must also fail.
Conclusion
For the reasons set out earlier I would dismiss all grounds of appeal other than ground 5. I should add that, given the direction by higher courts to trial judges to keep summings up short and concise, the judge has achieved that objective and has outlined the relevant features in what was a simple case. It is unfortunate that, because of her direction complained of in ground 5, there should be a re-trial. Whilst the summing up is commendably concise and correct in all other respects, there is a misdirection in law which means a re-trial is necessary.
I would allow the appeal on ground 5 and order a re-trial.
STANLEY J. I have had the advantage of reading the reasons of Anderson J. For the reasons given by his Honour, I would also allow the appeal on Ground 5 and order a retrial.