R v Cashion - [2013] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CASHION
[2013] SASCFC 14
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
28 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
The appellant was convicted after a trial by judge alone of two counts of rape and five counts of unlawful sexual intercourse. The appellant and his father were jointly charged with sexual offences against the victim, C. Shortly before the trial commenced the appellant's father pleaded guilty. The prosecution, against the appellant's objection, proposed to adduce evidence on the appellant's trial of the sexual offending by the appellant's father against C, and the appellant's knowledge of that offending. This objection was dismissed by the Judge. The appellant appeals against his conviction.
(1) Whether the evidence of the offending of the appellant's father was wrongly admitted - (2) whether the verdict was unreasonable because of the insufficiency of detail, inconsistencies and improbabilities, in the testimony of C - (3) whether C's failure to complain of the appellant's offending casts a doubt over the reliability and veracity of her account.
Held: appeal dismissed - (1) the offending of the appellant's father was relevant and strongly probative, in that it explained and rebutted circumstances which would otherwise render C's account improbable - the Judge confined his use to the admissible purposes of this evidence and properly warned himself against any impermissible use - (2) any doubt which the deficiencies, inconsistencies and improbabilities might otherwise raise are capable of resolution by the advantage of the Judge in assessing the oral testimony - they are not of a magnitude or nature to cause this Court to interfere with the Judge's satisfaction of his assessment of C's testimony - (3) C's failure to complain must be assessed with regard to the circumstances - it is a matter of human experience, to which a tribunal of fact can have regard, that vulnerable children subjected to chronic abuse may develop psychological and physical dependencies, which prevent them from complaining.
Criminal Law Consolidation Act 1935 (SA) s 48, s 49; Evidence Act 1929 (SA) s 34P, s 34Q, s 34CB, referred to.
R v Cashion [2012] SADC 132, considered.

R v CASHION
[2013] SASCFC 14
Court of Criminal Appeal: Kourakis CJ, Sulan and David JJ

KOURAKIS CJ: The appellant was convicted after a trial by judge alone of two offences of rape and five offences of unlawful sexual intercourse. The victim of the offences, C, born on 24 April 1991, was aged between 13 and 14 years during the course of conduct of which the charges were a part. C was the younger half-sister of the appellant’s domestic partner, M. Their mother suffered from a mental illness and, being unable to care for C, left her in M’s care in March 2004, just before C’s thirteenth birthday. At that time M was, herself, just 16 years of age and the appellant 18 years old.
When C first went to live with M and the appellant they were living in Woodville Gardens. They regularly moved house in the ensuing years, living in turn at Ethelton, Seaton and Beverley. The appellant’s father, David Cashion, was a frequent visitor to those households and often slept over. The appellant, his father and M often smoked cannabis, took other drugs and drank alcohol to excess. C testified that she too smoked cannabis to cope with her problems. C gave evidence that the appellant and David Cashion sexually assaulted her, on a frequent basis, over a period of several years commencing in September 2004. In May 2006 the group moved from Beverley to a house in Pennington and then, in September 2006, moved to Findon. C testified that whilst they lived in the Pennington and Findon households the appellant eventually stopped engaging in sexual intercourse with her but that David Cashion continued his offending.
The appellant and David Cashion were jointly charged with sexual offences against C. Shortly before the trial was to commence David Cashion pleaded guilty. Despite David Cashion’s plea, the prosecution put the appellant on notice that it proposed to adduce evidence on his trial of the sexual offending by David Cashion against C, and his knowledge of that offending. The appellant objected to the admission of that evidence. His objection was dismissed by the Judge.
The appellant appeals against his conviction on the ground that that evidence of David Cashion’s offending was wrongly admitted. The appellant also complains that the verdict of the Judge was unreasonable because of the insufficiency of detail, and the inconsistencies and improbabilities, in the testimony of C. The appellant relies in particular on evidence which showed that C failed to complain to officers from government agencies with whom she had regular contact over the period of time of the offending.
The appellant did not give evidence.
I would dismiss the appeal. If C’s evidence of the appellant’s offending were to be assessed in ignorance of David Cashion’s offending it would appear improbable that:
C did not complain to the appellant’s father;
the appellant’s offending went undetected by David Cashion; and
the appellant would be so bold as to frequently engage in sexual activity with C when his father was living in the same house;
Evidence of David Cashion’s offending was therefore relevant, and indeed strongly probative, in that it explained and rebutted circumstances which would otherwise render C’s account improbable. The evidence also served several other probative purposes which I outline below.
I deal below with each of the appellant’s complaints about the unreasonableness of the verdict but in summary any doubt which the deficiencies, inconsistencies and improbabilities might otherwise raise are capable of resolution by the advantage of the Judge in assessing the oral testimony.
I elaborate on my reasons below.
The offending
The first two counts on which the appellant was convicted were charges of rape and related to the first occasion on which the appellant sexually assaulted C. C testified that the offending occurred in September 2004 when M was in hospital to give birth. C gave evidence that she was supplied with alcohol and drugs by the appellant and David Cashion. When she was “out of it” the appellant took her to her room and there twice had sexual intercourse with her without her consent.
C testified that after that occasion she and the appellant engaged in acts of vaginal intercourse or fellatio several times a week. C testified that she asked the appellant to stop but that he persisted in his conduct. She testified that he threatened to kill her if she disclosed his offending. C gave evidence that the appellant hit her about the upper body and that she had seen him hit M when M was pregnant. Perhaps more importantly, the appellant told her, and given her contact with welfare agencies C probably well understood, that if the offending was disclosed she would be placed in a foster home. C testified that she did not complain to M because she thought that M would be angry and that the appellant might be mean to her.
The third charged count also related to an occasion at Woodville Gardens. C testified that it was an occasion on which fellatio took place in her bedroom after she had returned home from school.
The fourth count was a count of unlawful sexual intercourse which occurred in November 2004 after the group had moved to Ethelton. C testified that a similar pattern of offending as identified above had continued at the Ethelton home. The appellant’s father would often sleep over and alcohol and cannabis were consumed regularly. C testified that the fourth charged offence occurred in the backyard of the Ethelton home. In evidence in chief C said that the appellant had asked her to help him pick up rotten fruit lying on the ground in the backyard. In the course of that activity the appellant procured C to perform fellatio. They were interrupted when David Cashion came into the yard. C was told to go inside. As she went inside she heard the appellant tell David Cashion that if he did not disclose what he had seen that “he could do it too”. In cross-examination C accepted that the appellant might have been cleaning the backyard of dog droppings at the time, and not rotten fruit. C nonetheless adhered to her evidence in chief. No evidence was adduced contradicting C’s account.
C testified that, later on that same night, David Cashion had intercourse with her in her room. He too, like the appellant, threatened her not to disclose his conduct. C testified that David Cashion was a “scary person” who was “violent all the time”. C testified that David Cashion maintained an unlawful sexual relationship with her from that time forward. C’s evidence that David Cashion regularly had sexual intercourse with her was strongly corroborated by the birth of her child on 1 November 2007. DNA evidence established a very strong probability that David Cashion was the father of that child. C’s evidence against David Cashion was also corroborated by a body of other evidence.
The group moved from Ethelton to Seaton in October 2005. C testified that at Seaton a pattern was established whereby, after M had gone to bed, the appellant and then David Cashion would visit her in her bedroom and have sexual intercourse with her. C testified that while each man was with her, the other one would keep a lookout in case M should come out of her room. C testified that she had sexual intercourse with both men on “most nights”.
C gave evidence of conversations with M which showed that M knew that David Cashion was having sexual intercourse with her but that M was unaware that the appellant was also doing so. On one occasion M reported the matter to Families SA and their officers came to the house. For some time they were accommodated in a motel but the appellant eventually located them and they returned home. C testified that after that occasion the appellant threatened her that he would arrange for members of a notorious criminal family to cause her harm if she informed on him.
The fifth count of unlawful sexual intercourse was alleged to have occurred at Seaton. C testified that she was cooking a meal in the kitchen holding M’s daughter, E, who was nearly two years of age. The others were drinking alcohol outside. The appellant came into the kitchen and caused her to perform fellatio on him while she still held the child. David Cashion came into the house, saw them, and started abusing C. M also came into the kitchen. According to C, M then struck her around the head causing her to bleed from the ear and the nose. C testified that she went to live with the appellant’s mother for several days after that incident.
The sixth count was a count of unlawful sexual intercourse which occurred in the garage of the Seaton house.
The final charged act of sexual intercourse occurred at Beverley. C testified that on one night, while she and the appellant were engaged in sexual intercourse on her bed in the sleep-out David Cashion became aware that they were doing so and locked the internal door to that room. The appellant had to leave through an external door to make his way back into the house.
In May 2006 the group moved to David Cashion’s house at Pennington and later, in September 2006, again moved to a house at Findon. C testified that thereafter she continued to have sexual intercourse with David Cashion but could not recall whether she had any further intercourse with the appellant. It was at Findon, in 2007, that C became pregnant. She was 15 years of age at the time.
After her son was born C moved, with her son, to Malvern House at Blair Athol. While she was at Malvern House C met JT, through his sister, RT, who was also a resident at Malvern House. C and JT formed a relationship. In February 2008, after an altercation between JT and David Cashion, JT questioned C about David Cashion. RT was also present. C then confided in them that she had been sexually abused by her sister’s boyfriend and his father. C told them that she had been terrified of the appellant and David Cashion.
JT said that C had confided in him that she wasn’t sure if it was David or Darren that was the father of her child.[1] C and JT both testified that there was some uncertainty on C’s part as to who was the father.
[1] Transcript 327.
RT testified that C had complained that the first occasion had occurred when she was around 14. JT testified that C had complained that she had been first assaulted when “her sister was giving birth to her kid or at some appointment due to her pregnancy”. Later in cross-examination JT was asked:[2]
Q. And also whilst [M] was having appointments due to her pregnancy, right?
A.One or the other when she basically when she wasn’t at the house she was threatened and used her sister against her.
Q.Your understanding was that [C] was being sexually assaulted whilst [M] was pregnant?
A.Yes.
Q.And then she was again sexually assaulted while [M] was away at the hospital having the baby?
A.Correct.
[2] Transcript 340.
Admissibility of David Cashion’s offending
The appellant’s submissions on the appeal proceeded on the premise that the evidence of David Cashion’s offending was discreditable conduct of the appellant and its admissibility was therefore governed by s 34P of the Evidence Act 1929 (SA) (the Evidence Act). Plainly enough, the evidence of the offending of David Cashion was not, in itself, evidence of discreditable conduct on the part of the appellant. It was only the appellant’s knowledge of, and knowing involvement in, David Cashion’s conduct which was discreditable conduct on his part. The admissibility of the evidence of David Cashion’s offending depended only on it being relevant. Moreover, the admissibility of the evidence of the appellant’s knowledge can only be assessed in the context of a trial in which the evidence of David Cashion’s offending, if relevant, is received.
David Cashion’s offending was, in my view, relevant and probative in the case against the appellant for the following reasons. First, the failure of C to complain to David Cashion of the appellant’s offending would appear improbable to a tribunal of fact which was not aware of David Cashion’s offending. Absent that knowledge, David Cashion, as the most senior in the household and the father of the appellant, would appear to be an obvious person to whom C might complain. However, that improbability immediately dissipates in the light of David Cashion’s offending. Secondly, a tribunal of fact might consider it improbable that the appellant’s offending would go unnoticed by David Cashion. The admission of the evidence of David Cashion’s offending shows that it did not go unnoticed and explains why it was not brought to an end. Thirdly, the evidence of the offending by David Cashion, both alone and together with the offending by the appellant, shows a level of abuse and degradation of C which is capable of explaining why she would not complain to M or to welfare agencies. Fourthly, the offending by David Cashion was the cause of C’s pregnancy and therefore ultimately the context in which she eventually did complain of both the appellant’s and David Cashion’s offending.
The evidence of the appellant’s knowledge of his father’s offending was, in my view, strongly probative and outweighed any prejudice the evidence might have engendered. It was therefore admissible pursuant to s 34P of the Evidence Act. First, the conversation in the backyard of the Ethelton home which led to David Cashion’s offending was, in itself, an important item of evidence against which the proof of that incident against the appellant rested. Both the fact of the interruption and the conversation with David Cashion critically affected the assessment of the reliability and truth of C’s account. C’s account could not properly be assessed without knowing whether or not David Cashion acted on the appellant’s suggestion. Secondly, the arrangement by which the appellant and David Cashion took it in turns to keep watch explains how the offending was kept secret from M. Thirdly, the appellant’s knowing involvement in David Cashion’s offending explains why he was so bold as to continue to engage in frequent sexual intercourse with C after his father had witnessed his offending in the backyard. Fourthly, the evidence of the knowing involvement of the appellant and David Cashion in the offending contributed to what the Judge described as “the complex dynamics of possessiveness and jealousy” which pervaded the household.[3] Those dynamics explained the continuous and frequent abuse of C and the actions of the appellant and David Cashion about which C testified. In particular those dynamics explained the bizarre behaviour which was the subject of count 5.
[3] R v Cashion [2012] SADC 132 at [69].
The uses to which I have referred were not all identified by the Judge in his pre-trial ruling on admissibility of the evidence.
Counsel for the appellant submitted that s 34Q of the Evidence Act precluded use of discreditable conduct for any purpose other than that identified by the Judge in ruling that the evidence was admissible pursuant to s 34. Section 34Q of the Evidence Act provides:
34Q—Use of evidence for other purposes
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.
I would reject the appellant’s submission. Section 34Q of the Evidence Act speaks of evidence which is “admissible for 1 use” and not to evidence which “was admitted for 1 use”. The purpose of s 34Q of the Evidence Act is to ensure that every use made of the discreditable conduct evidence is a use which satisfies the test for admissibility set in s 34P, namely that the probative value of the evidence for a particular use outweighs its prejudicial effect, and if the use relies on propensity, that it is strongly probative. It precludes, for example, reliance on discreditable conduct evidence, which is admitted for a non-propensity use because that use outweighs its prejudicial effect, to prove guilt through propensity if the evidence does not also have strong probative value. Section 34Q may also preclude reliance on an additional use which is not sufficiently distinct from an impermissible use.
In this case all of the uses to which the evidence was put, both individually and collectively, outweigh the prejudicial effect of the evidence. The prejudicial effect of the appellant’s knowing involvement in David Cashion’s offending must be weighed in the context of the unavoidable prejudicial effect of the evidence on his own offending. Moreover, none of the uses rely on propensity and all are distinct from the impermissible use of the evidence.
The Judge confined his use to the admissible purposes of the evidence and properly warned himself against any impermissible use.[4] This ground of appeal should be dismissed.
[4] R v Cashion [2012] SADC 132 at [65]-[74].
Unreliability of C

The appellant submitted that C’s testimony about the offences of rape were so lacking in detail that this Court should have a reasonable doubt about the reliability and credibility of her evidence.
I have read the evidence of C.
The appellant’s criticism of C’s testimony concerning the offences of rape fails to have regard to C’s evidence that she was seriously affected by drugs given to her by the appellant. C testified that the appellant and David Cashion had given her alcohol and cannabis with pills crushed on top. She was carried into the bedroom by the appellant.
The appellant also complained that C was not able to answer a great many questions in the course of her long cross-examination about matters of detail and surrounding circumstances.
On the face of the transcript C’s evidence does not strike me as having a surprising or extraordinary lack of detail. C was relating events which occurred when she was aged between 12 and 16 years. She was giving the evidence many years after the events had occurred. In that period of time she had been separated from her mother and subjected, on her account, to sexual and physical abuse which can only have been psychologically and emotionally confusing and distressing for a girl of her age. At the same time C was also regularly smoking cannabis.
The Judge did not find C’s inability to recall those matters of detail surprising. The Judge said:[5]
Mr Stewart submitted that the lack of detail in C’s evidence means that Darren Cashion is at a forensic disadvantage in terms of being able to answer C’s allegations (see Evidence Act, s 34CB). I also reject that submission. For cases of this kind, I agree with the submission of Ms Wildman, for the Director of Public Prosecutions, that C’s evidence is sufficiently detailed. The date on which each move took place has been clearly established, and C related her evidence clearly to those addresses. The accused has elected not to give evidence. I have no evidence before me as to any forensic disadvantage he may have encountered. The delay is not such that prejudice may be presumed.
[5] R v Cashion [2012] SADC 133 at [117].
The Judge accepted C’s testimony. The Judge had the advantage of assessing C’s testimony. The Judge said:[6]
I agree with Ms Wildman’s submissions about that. C’s credibility and reliability withstood a sustained and searching challenge in cross-examination. She was frank, clear when she did remember, and acknowledged when she did not remember, even where it would have been helpful to her to have remembered. As I said, I found nothing inherently implausible or fanciful in what she said. Making allowance for her limited education, and having regard to the circumstances of her upbringing, I am satisfied beyond reasonable doubt that C’s evidence was honest, credible and reliable.
I am persuaded that none of the suggested motives attributed to C affects C’s credibility or reliability. I repeat, there is always a possibility that a person in C’s position might lie for a reason which is not apparent. I am satisfied beyond reasonable doubt that C was not lying about any of the events she described in evidence.
…
Taking all these matters into account, I am satisfied beyond reasonable doubt that C’s evidence is true. That conclusion is based on the view I take about the credibility and reliability of C’s evidence, and the fact that it is, in relation to counts 4, 5, 6 and 7, supported by the evidence in relation to David Cashion, and supported by the evidence of initial complaint in relation to all counts. I reject the submission that there is a reasonable doubt about that. The evidence is that the conduct of these two men was extraordinary and disgraceful, but the totality of the evidence satisfies me beyond reasonable doubt that it is true.
[6] R v Cashion [2012] SADC 132 at [120], [123] and [124].
On the face of C’s testimony, and in the context of the evidence as a whole, there appears no reason not to defer to the advantage of the Judge in deciding whether C’s testimony, in the context of the other evidence in the case, proved the offences alleged beyond reasonable doubt. There is no reason in all of the evidence to think that the Judge must, or should have, entertained a doubt about C’s testimony having regard to the Judge’s advantage in assessing her.
The appellant’s criticism of C’s testimony about the rotten fruit in the backyard must also be rejected. The evidence did not contradict her account. C’s preparedness to accept that she may have been mistaken about what was being removed from the ground might also be seen as enhancing her credibility. The Judge was in the best position to weigh considerations of that nature.
The appellant also contended that C’s account of the act of fellatio which was the subject of count 5 was so absurd and “wildly fictitious” as to necessarily cast a doubt on her evidence. In my view the appellant’s criticism fails to have regard to the historical context of C’s account. C’s account might seem very improbable when viewed from the perspective of what might be expected in most households, and of the behaviour that might be expected of a father in the presence of his two year old daughter. However, C’s account of the incident of fellatio in the kitchen does not appear as improbable in the context of the history of the offending against her by both the appellant and David Cashion. Moreover the Judge observed that the incident did not seem absurd to C. I understand that observation to mean that C described the incident in the witness box in a matter of fact and believable way. The Judge said:[7]
I have re-read T 106 – 110, as Mr Stewart invited me to do. It is clear that C did not regard this evidence as being as absurd as Mr Stewart did. It was clear that C regarded this sort of behaviour as commonplace. Her evidence that M, when she realised what was happening, ran inside and began violently assaulting her, rather than Darren Cashion, presumably after the child had been released, merely confirmed C’s earlier evidence about whose side M would take if she became aware that Darren Cashion and C were having sexual intercourse.
[7] R v Cashion [2012] SADC 132 at [114].
Having regard to the course of sexual abuse described by C the description of the incident which is the subject of count 5 does not cause me to have a doubt. I see no reason why the Judge, having heard the testimony himself, was bound to have a doubt about it.
The appellant contended that C’s failure to complain of the appellant’s offending necessarily cast a doubt over the reliability and veracity of her account. C had had contact with many welfare agencies, nurses, doctors, teachers, counsellors, psychologists, police officers and court staff and a magistrate at the Youth Court.
It can be accepted that her failure to complain is an important matter against which her evidence must be carefully assessed. However, the psychological effect on her of the abuse, if it had occurred, must also be taken into account. So too must the vulnerable state of a child taken from her mother and placed in the environments to which C was exposed. It is a matter of human experience, to which a tribunal of fact can have regard, that vulnerable children subjected to chronic abuse may develop psychological and physical dependencies, which prevent them from complaining. C’s failure to complain must also be assessed against the evidence which showed that she was abused by David Cashion and yet never complained about his offending to the persons and agencies with whom she had contact.
Finally, the appellant contends that the inconsistencies in C’s complaint should also lead to the rejection of her evidence as a sufficient foundation for the Judge’s verdicts.
The appellant points to the testimony of RT who said that C complained to JT and her that she was “about 14” when the abuse commenced when she was in fact 13. The criticism, even if soundly based on the evidence, is pedantic and attributes to human memory an unrealistic precision. Be that as it may, RT was referring to C’s complaint about when David Cashion had started to abuse her. RT’s account of the complaint is therefore consistent with C’s testimony.
The appellant also drew attention to the evidence of JT to which I referred above in [24]-[25]. In my view JT’s testimony reads more naturally as if he was expressing uncertainty in his recollection of what C had said. In any event the Judge was in the best position to assess the significance of that matter.
Conclusion
My consideration of C’s testimony does not leave me in doubt about the appellant’s guilt. The appellant’s complaints, individually and collectively, raise matters which are commonly encountered in offences of this kind. They are not of a nature or magnitude which would cause me to interfere with the Judge’s satisfaction on his assessment of C’s testimony, that the offences were proved beyond reasonable doubt.
The appeal should be dismissed
SULAN J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
DAVID J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.