R v Coutts - [2013] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COUTTS
[2013] SASCFC 143
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Blue)
20 December 2013
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
Appeal against convictions - appellant found guilty by jury of eight counts of rape and one of assault - complaint that trial judge wrongly declined to exclude record of interview with police - complaint that judge wrongly confined the "real issue" in relation to the rape charges to that of consent - complaint that judge's directions to jury going to use of evidence on one count with respect to the others were inadequate - whether any such direction required - whether propensity reasoning available - complaint that inadequate directions were given as to the use of evidence of uncharged acts - consideration of s 34P and s 34R Evidence Act 1934 (SA).
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 353; Summary Offences Act 1953 (SA) s 79A; Evidence Act 1929 (SA) s 34P, 34R, referred to.
Hargraves v The Queen (2011) 245 CLR 257; Alford v Magee (1952) 85 CLR 437; KRM v The Queen (2001) 206 CLR 221; R v Tedesco (2003) 85 SASR 66; R v HS (2004) 90 SASR 28, considered.

R v COUTTS
[2013] SASCFC 143
Court of Criminal Appeal: Sulan, Vanstone and Blue JJ

SULAN & BLUE JJ: We have had the opportunity to consider the draft reasons of Vanstone J. We agree with her reasons, subject to our observations which follow, and agree that the appeal should be dismissed. We add the following observations.
Grounds 4 and 5 of the appeal are that the trial Judge erred in his directions to the jury as to the permissible and impermissible use of the charged acts in relation to another charged act, and that he erred as a matter of law in failing to direct the jury adequately as to the permissible and impermissible use of the evidence of uncharged acts and/or discreditable conduct in relation to the charged acts.
The complainant gave evidence of other acts and conduct allegedly committed by the appellant during the course of their relationship, which were not the subject of any charge. The events described by the complainant were forced anal and oral sexual intercourse. The prosecution led the evidence to establish the degree of dominance that the appellant exercised over the complainant to explain why she submitted to the appellant. That evidence was evidence of discreditable conduct.
The evidence of each of the charged rape offences is also evidence of discreditable conduct, and is cross-admissible. It was accepted, both at trial and on appeal, that the evidence is cross-admissible.
In summing up, the Judge directed the jury as follows:
I will not be much longer, hopefully no more than 10 minutes but I come to an important topic. In this trial you have heard evidence of other acts and conduct allegedly committed by Mr Coutts against Ms A during the course of their relationship which are not the subject of any particular charge. The charges that are before you relate to certain events such as the first time such and such happened or the day before the birthday, or 23 March because we have the tape because we can date those for other reasons. But the wider evidence of Ms A was on one view of the facts that these things happened more than on the occasions charged. There are events basically of forced anal and oral sex and they are presented by the prosecution as being evidence of the alleged degree of dominance that Mr Coutts exercised over Ms A and as explaining her resultant submission to him and as being evidence that sometimes he might become angry and threatening towards her.
Now, members of the jury, you have heard this evidence because it may potentially be helpful to you in evaluating her evidence in the total context of the relationship. Depending on what view you make of it, it may help you and provide the entire context in which the incidents that are charged took place or occurred. In that way, depending on what view of the facts you take, it can be said that the whole sequence of events throws light on the nature of the entire relationship which Ms A claims existed between them and which might not otherwise be complete or might remain incomprehensible without this additional evidence of uncharged incidents.
You should consider this evidence of those matters along with the evidence going directly to the charges in determining what, if any weight you are prepared to give to the evidence of Ms A. As I said, it is evidence available to you which may assist you in concluding that her evidence is reliable, or alternatively, if it might show inconsistency, unreliability or inherent improbability of her account of the events and thereby raising a doubt or doubts about the charges.
But, members of the jury, you must fully understand that this evidence has limited uses. As I have said it is available to you as tending to explain, for example, why she did not make a complaint earlier, to explain the accused’s domination over her or her submission to his demands or as, depending on what you make of it, perhaps explaining an ambivalence in her feelings towards him which may or may not make explicable the shows of affection of which you have heard, especially in the text messages, in the mobile screen shots in Exhibits D11 and D23, and in the text messages contained in Exhibit P7. Those are the proper uses and limits of that evidence of those other incidents. But they are the only ways in which you may use that evidence.
Members of the jury, you should not make use of any of those other incidents at all unless you accept they occurred. Moreover, if any of that other evidence on any one or more of those topics, anal and oral rape, is essential to a process of reasoning leading to a finding of guilt, the evidence on that topic or topics must be first established to your satisfaction beyond reasonable doubt before you can use it in the limited way I have mentioned.
Still, further, you must clearly understand that there are certain impermissible uses of this evidence. I direct you that the fact that a number of allegations are made about a number of other occasions, does not in any way absolve you from the task of determining whether the charges themselves are established on the evidence specifically relating to those charges. It would be wrong for you to reason in effect, ‘Well, we are satisfied that something along those lines occurred so we are going to convict anyway’. That would be quite wrong. It would be wrong for you to conclude from the other conduct of the accused, depending on what you find it to have been, that he is of bad character or the sort of person who would be likely to commit the offences with which he was charged. Remember it is the direct evidence presented in proof of the charges themselves which is critical to your resolution of those charges. Evidence of other uncharged incidents is given only to assist you in your evaluation of the evidence going directly to the charges to be used in the limited way or ways I have just identified. Ultimately it is upon the charges themselves that you must focus and render your verdicts.
The Judge did not specifically direct the jury that, in considering a charged act, evidence forming the basis of other charged acts can be used in the same way in which evidence of an uncharged act can be used. He did, however, direct the jury that they should consider the evidence of other matters, along with evidence going directly to the charges in determining what, if any, weight they were prepared to give to the evidence of the complainant.
The Judge identified the evidence of other occasions as being forced anal and oral sexual intercourse. He identified the purpose for which the evidence was called and explained to the jury how they could use that evidence. He also explained to them clearly how they could not use the evidence. He directed the jury that they must consider the evidence in respect of each charge, and that it would be wrong to reason that the appellant was the type of person who would do these things, therefore he must be guilty.
The appellant complains that the trial Judge erred in failing to relate the discreditable conduct evidence to the separate counts, and that his directions were general directions without relating to a particular count.
In R v HS,[1] the appellant was charged with nine counts of unlawful sexual intercourse with a person under the age of 17. The trial was conducted by Judge alone. The appellant, having been convicted of six of the nine counts, appealed against his conviction. In summary, it was alleged against the appellant that he had committed various acts of indecency in respect of one complainant between 1978 and 1988. On appeal, Duggan J observed that, at the commencement of the trial, the prosecution gave notice of its intention to lead evidence of a series of alleged indecencies committed on the complainant by the appellant, which were not charged in the Information. The complainant was unable to be specific about a number of the uncharged incidents. The trial Judge admitted the evidence.
[1] (2004) 90 SASR 28.
Duggan J observed that the trial Judge warned herself of the impermissible use of the evidence, namely, that the defendant had a propensity to behave improperly with the complainant and is, therefore, the sort of person who is more likely to have committed the nine offences with which he was charged.
The issue with which Duggan J dealt was that the trial Judge said nothing in her reasons as to whether she used the evidence of one charged act which she found proved as evidence to assist in the proof of any of the other charged acts, nor did she say anything about the use to which such evidence could not be put. Duggan J said:[2]
In my view, there was no real risk that the trial judge used the evidence of each count in relation to other counts in an impermissible manner. She correctly directed herself on the legitimate use of the evidence of the uncharged acts. She explained that this was the only relevance of those acts. If she chose to use the evidence of each charged act as probative in relation to other charged acts it could only be pursuant to the same process of reasoning which rendered the uncharged acts relevant. After giving herself the warning that she was not to employ propensity reasoning in respect of the evidence in relation to the uncharged acts, it is highly unlikely that she would have used such reasoning as between the charged acts. In short, there is no real risk that the evidence of any of the charged acts was used for an impermissible purpose in the proof of other charged acts.
Anderson J agreed with Duggan J. In our view, the remarks of Duggan J referred to above are apposite to this case.
[2] (2004) 90 SASR 28 [15].
The evidence of the charged acts was cross-admissible. If the jury was satisfied that any one charged act had been proved, the jury could use the evidence of that act in considering whether other acts had been proved. The rationale for using the evidence of other charged acts as admissible evidence to establish another charged act is the same as for the use of evidence of uncharged acts.
The Judge’s directions relating to evidence of uncharged acts identified for the jury the purpose for which the evidence was lead, and how it had a limited use. The Judge directed the jury that it should consider the evidence of those matters (ie the uncharged acts evidence) with the evidence going directly to the charges in determining what, if any, weight the jury was prepared to give to the evidence of the complainant. He then gave specific directions that the evidence had limited uses, and he referred to those limited uses. In our view, the jury would have understood the limitation that the Judge placed on the evidence of uncharged acts as also applying to the evidence of the charged acts. The jury would have understood the impermissible use of the evidence of both the charged and uncharged acts.
Further, as to the failure to specifically direct the jury in respect of the charged acts, there is no risk that the jury would have used the evidence for an impermissible purpose.
We consider that there is no risk of a substantial miscarriage of justice. We would reject these grounds of appeal.
Even if the Judge’s directions were inadequate, we agree with Vanstone J that there was no substantial miscarriage of justice and we would apply the proviso.
VANSTONE J: The appellant was convicted by verdicts of a jury for eight counts of rape and one of assault. He was acquitted of two counts of rape by direction and of a second assault charge arising from events of the same day which gave rise to the first charge of assault.
He appeals against the convictions arguing that the trial judge wrongly declined to exclude from evidence an interview with police and that there were deficiencies and omissions in the directions given to the jury by the trial judge. Having heard an extensive argument in support of the grounds by Mrs Shaw QC I have determined that none of the grounds is of substance. I would dismiss the appeal.
Background
Throughout the time when the offences were said to have occurred the complainant (V) was living with the appellant. She was a woman in her early 40s and he was seven or so years younger. V had previously worked as a prostitute and was still undertaking some work in a massage parlour. The relationship commenced at about the end of 2008 and in about December of that year the appellant and V became engaged to be married. V said that the first major argument in the relationship occurred on New Year’s Eve 2008.
The prosecution presented the case as one of multiple acts of violent rape and physical abuse spanning a period of about four months. It ended early in May 2009 when it was said that the appellant attacked V and she ran out of the house for help. The charges of rape were, variously, allegations of fellatio, vaginal intercourse and anal intercourse. They were often accompanied by acts of violence. In relation to counts 6, 7 and 8 V told the jury that, apprehending a violent episode, she turned on the recording function of her mobile phone, placed it under her pillow on the bed, and then recorded what turned into an extremely violent episode culminating in anal sexual intercourse.
The two rape charges for which the appellant was acquitted represented occasions when V gave evidence of violence towards her by the appellant, but on which she failed to give evidence of sexual intercourse, either because she passed out or because she simply could not remember. The acquittals of the appellant on those counts were directed by the judge and cannot represent any finding by the jury of a deficit in her credibility. The acquittal of the appellant on count 11, the first instance of assault, was explicable on the basis that V had said that she could not remember whether she remained conscious for all of that incident.
The appellant gave evidence in his own defence. The judge summarised the defence case by recounting that:
Mr Coutts said in his evidence all sex was free and willing including anal sex and that no threats to her or anyone else were involved.
In relation to the recorded incident the appellant said that it was agreed in advance that there would be a role play of “master and slave” involving (consensual) domination. He said that they had agreed upon what was referred to as a “safety word” which could be uttered by either if he or she wished to stop.
Following upon the violent incident culminating in count 12, the appellant was arrested by police. He was in custody at a police station when the investigating officers approached him in relation to the further allegations of rape, of which they had by then learned. Before interviewing him the police told him he was under arrest for “sexual assault”.
Recorded interview with police
Prior to the jury being empanelled the judge conducted a voir dire hearing in relation to the interview and some other matters. Counsel then acting asked that the statements made by the appellant be excluded in the exercise of the judge’s discretion, contending that it would be unfair to use the answers against the appellant. The grounds of the application were that the appellant was not adequately informed of the true reason for his arrest, that he was not given reasonable opportunity to exercise his rights, that some of the questioning was inappropriate and that there was a lack of information provided to him about the focus of the inquiry. The issue was argued on the papers.
There is no dispute that the appropriate information in terms of the appellant’s rights was provided to the appellant in accordance with s 79A of the Summary Offences Act 1953 (SA). Upon the appeal it was argued that although answers given by the appellant suggested he wanted the assistance of a solicitor, and indeed had been trying to contact one in the previous day or two, and although he expressed the wish that he would have liked someone present during the interview, insufficient was done to facilitate those requests. Mrs Shaw took the Court to a number of passages in the interview where the appellant was expressing some equivocality about proceeding with the interview. It was also argued before the trial judge – and echoed on appeal – that the police should have advised the appellant in detail of the subject matter of the interview they wished to conduct before giving him the s 79A rights instead of immediately afterwards.
The whole of the interview, including the video recording, is available to the appeal court as indeed it was available to the trial judge. I do not agree that the interviewing officers failed to afford the appellant opportunity to exercise the rights of which he was apprised. It would appear from some of the appellant’s answers that he was at various times in two minds about proceeding without advice from a solicitor or support from a friend. However, it was his decision to refuse the offers of the police to follow up inquiries with those persons. In relation to the friend whom he nominated, when asked whether he wished to telephone her, he advised police that she would be working and that he would only be able to leave a message on her “machine”. He said that he would call her afterwards. In respect of the solicitor he said that his lawyer was meant to be there but when asked whether he would like to call the solicitor the accused said “Ahh. Stuff it, I’ll just get this out of the way.” When the offer to facilitate the obtaining of some legal advice was reiterated, his response was that he did not know what the matter was about. He was told that if he did want to obtain legal advice he should let the officers know. He was repeatedly told of his right to not answer questions. Attention was drawn to his statement at one point that he was “confused and overwhelmed with everything that’s going on at the moment” and a statement that his head was “not in a good place at the moment”. It was suggested that this should have caused the police to stop the interview forthwith.
As to the subject matter of the interview, as I said, the appellant was told at the outset that the allegations were of “sexual assault”. After the s 79A rights had been explained and before any questioning he was told that the allegations were of rape and the complainant was identified. I agree with the trial judge that there was no reason to apprehend that the appellant was confused about the reason for the interview. The point is that the nature of the allegations was explained before the questioning proceeded. There is no rule that requires an interviewing officer to give the necessary advices in a particular order.

All of this material was, as I said, before the trial judge. The task of the appellant before this Court is to persuade us that, upon a fair reading of the interview, and, I note, without any evidence from the appellant to support the argument, the trial judge must have excluded the interview in his discretion as being such as to render the trial unfair.
In my view the appellant comes nowhere near to that position. The appellant made a decision to proceed with the interview. It is not true to say that he was not given the opportunity to exercise his rights. He decided to proceed without doing so. He took the opportunity to put his position when confronted with the complainant’s allegations. He made no admissions as to any wrongful conduct in relation to the complainant. I consider that the trial judge was entitled to take the view that there was no reason to exercise his discretion to exclude the evidence. I would have reached the same view.
Directions on the issue of consent
Part of the duty of a trial judge is to decide what are the real issues in the case, to tell the jury what those issues are and to instruct the jury on the relevant law: Alford v Magee (1952) 85 CLR 437, Hargraves v The Queen (2011) 245 CLR 257 at 275 to 276.
Mrs Shaw argues that the judge wrongly told the jury that the real issue in the trial was the second element of the charge of rape, namely proof that the complainant was not consenting to intercourse. Mrs Shaw argues that, while that was indeed a live issue, there was a further issue as to whether, even if the complainant was not consenting, the appellant might have believed that she was. Counsel said that primary focus was on this ground of appeal.
At trial the appellant was represented by a member of the criminal bar of well over 20 years experience. I would describe that practitioner as a “senior junior”. A fair reading of the transcript of the trial, including the appellant’s evidence, indicates that the issue upon which the trial was fought was indeed the proof of lack of consent. The two versions of events were diametrically opposed. It is true that there was clear evidence in the form of text messages and indeed the complainant’s evidence that at times other than the charged occasions, the complainant expressed very loving feelings towards the appellant. The relationship was plainly one marked by highs, lows and a good deal of possessiveness. However, as to the charged incidents, there could be no doubt about the complainant’s claims. In relation to count 1, V said that she told the appellant that she was tired and that she did not want to participate in sexual conduct with him. In the face of her protests, the appellant forced her to give him oral sex by holding her head and putting his penis to the back of her throat. She said she was “gagging”. She tried to pull away, but he held her head.
In respect of count 3 V described in detail how the appellant choked her and how she lost consciousness. When she awakened, the appellant had his hands around her throat. He told her he had the power to cause her to pass out whenever he desired. After V regained consciousness, the appellant forced her to have vaginal intercourse with him.
Count 4 was an episode of anal intercourse (which V said he knew she did not welcome) which followed another episode of choking. She said she was crying in pain. He ignored her requests that he stop.
Count 5 charged an act of anal intercourse. V described how the appellant hit her when she indicated that she did not like what he was doing. She was crying and asking him to stop. He hit her and made her submit to anal intercourse. She screamed in pain and asked him to stop. In response he “thrust harder”.
V said that she had considered telling others about what the appellant had been doing to her, but she was afraid to do so because he had threatened to break her son’s legs and to harm her family. She also considered that no-one would believe her, so she decided to electronically record what was occurring in their relationship.
Counts 6, 7 and 8 were recorded on V’s mobile telephone. Plainly the events were violent and abusive. The appellant did not deny that the events heard on the recording involved him, but he claimed that he and V were engaged in a consensual “role play”. The only issue was whether that might have been so. If the jury accepted that the incident was of the nature described by V, and verified by the recording, then there could be no question of belief in consent.
In relation to count 10, V described the appellant demanding that she perform oral sex and reaching across to grab her by the throat. He held her head with his penis in her mouth. She tried to pull away, but he pushed her head on to his penis.
The appellant denied the incidents as described by V. He said that there was never any choking, that there was never violence, that there were no threats and that, when sexual activity took place, it was willing and consensual. There could not be any question in relation to any of these occasions as described by V that he believed she was consenting. If the jury accepted the complainant’s evidence to the requisite degree of proof then the appellant fell to be convicted.
The direction complained of is best encapsulated in the following excerpt from the judge’s summing up:
The prosecution case is that if you accept the evidence of [the complainant], it must have been obvious that she was not consenting and the accused must clearly have been aware that she was not consenting or recklessly indifferent to the fact that she was not consenting. Of course those matters are matters for you, but at the end of the day you might think, as [defence counsel] put it to you in his address, the issue really here appears to be one of consent in the case of each of the eight charges of rape.
Not only did defence counsel make no complaint about this direction, but nor did he complain that the position taken in his own address had been misrepresented. Although Mrs Shaw made reference to a passage in defence counsel’s address, I consider that a fair reading of it was that the issue throughout was indeed consent and V’s text messages punctuating the counts were consistent with her having consented throughout, even if with some misgivings. As well, the passage above makes clear that this encapsulation of the real issue is a matter of fact and only the judge’s assessment. The judge clearly said that the question of whether it must have been obvious to the appellant that the complainant was not consenting and his awareness of that attitude were still matters for the jury.
In my view there is no substance in this ground.
Directions regarding use of one count in relation to another
This ground raises the argument that the judge should have directed the jury “as to evidence which was admissible and evidence which was inadmissible in relation to each count”; that the judge failed “to direct the jury that the evidence of one count was not admissible in proof of another count” and that the judge erred “in failing to direct the jury against propensity reasoning in relation to the charged counts”.
The appellant relies on the terms of s 34P Evidence Act 1929 headed “Evidence of discreditable conduct” and s 34R(1) dealing with trial directions. I set out those sections:
34P—Evidence of discreditable conduct
(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 that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue 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).
…
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
…
The premises underlying the ground are not strictly accurate. The judge directed the jury that it was not permitted to take into account the conduct forming the basis of counts 11 and 12 in relation to the rape charges. The judge also directed the jury that each count was charged as a separate offence and had to be treated separately on its merits. The judge gave a very general propensity warning arising from the “type of evidence” that was before the jury. That was aimed, as I read it, against marking the appellant down, as it were, on account of somewhat unconventional sexual practices.
In my opinion nothing more was required. All the evidence relating to the sexual charges was admissible with reference to the other sexual charges. That was why there was one trial on all those charges. Had there not been cross-admissibility an application for separate trials would have succeeded. There was no such application. The non-propensity uses of the evidence – which may be conveniently summarised as going to credibility – were obvious. Particularly in the circumstances of the present case, where the complainant’s evidence on counts 6, 7 and 8 was fortified by the recording of the event, the jury was entitled to use that evidence to draw conclusions about the complainant’s credibility, which they were entitled to import to the other charges. The fact that a direction pointing this out was not given and that other comparable directions regarding other charges were not given could only have advantaged the appellant.
I turn to the complaint that no propensity warning was given. Traditionally, where charges of a like nature appear on an information and the complainant in each is the same person there is no absolute rule that the judge is required to give a propensity warning, particularly where a separate consideration direction is given: KRM v The Queen (2001) 206 CLR 221; R v Tedesco (2003) 85 SASR 66 per Doyle CJ, Duggan and Gray JJ agreeing. That is so even though the evidence of some or all of the joint charges might incidentally disclose propensity. To give such a direction could tend to unduly complicate the summing up and could work against the accused’s interests
The question which arises in this case is whether the terms of s 34R(1) gave rise to an obligation to give such a direction. As I have observed, acceptance of the complainant’s evidence in relation to any of the rape charges would plainly have borne on the jury’s general assessment of the credibility of both the complainant and the appellant. But it could have incidentally tended to prove that the appellant had a demonstrated capacity and disposition to violently rape this complainant. That is, it was capable of use as propensity evidence. Should the judge have warned against such a use?
In my view it would have been counter-intuitive, illogical and misleading to direct the jury that it could not bring such a conclusion to bear on its consideration of the other charges. In these circumstances a warning against propensity should not have been given. That means that the very use that the appellant claims should have been prohibited and warned against was in fact available. Moreover, to observe that a propensity use was available is not to say that the jury would have reasoned in that way. As I have said, no-one in the trial suggested such an approach. Where the evidence of only one complainant on several counts is before it, a jury is naturally inclined to take an overall and a direct approach to the credibility of the various witnesses, rather than deviating to a consideration of such issues as propensities, dispositions or tendencies. The direct approach is that which the judge invited the jury to employ.
However, s 34R seems to require a comprehensive direction on permissible and impermissible uses. On one view it could be seen to demand a direction permitting a propensity use of evidence of one count upon the others where such use was available, even where, as here, there was no reliance in the trial on such reasoning.
This highlights the absurdity of taking a literal approach to s 34R(1) in a case involving one victim and a succession of broadly similar allegations; which cases have not been seen, traditionally, to place in the foreground or necessitate a consideration of propensity issues.
The appellant did not claim that the judge made an error of law in failing to deal in his summing up with the issue of propensity in obedience to s 34R(1); or indeed in respect of his directions on permissible use. In respect of this ground the appellant merely relied on the brief written submissions contained in the outline of argument.
If there was an error of law in failing to comply with the requirements of s 34R, then I would apply the proviso and hold that there was no substantial miscarriage of justice: s 353(1) Criminal Law Consolidation Act 1935 (SA). Having regard to the way the case was presented and defended and to the directions given, there is no danger that the jury misused any of the evidence. As I said, I consider a discussion of propensity was not called for and would have been counterproductive to the appellant’s interests.
The appeal should not be allowed on this ground.
Directions going to the uncharged acts
This ground complains that the judge failed to adequately direct the jury as to the permissible and impermissible uses of the uncharged acts.
The uncharged acts of which evidence was led were of quite narrow significance when compared with the number of charges and to the graphic evidence given by V in support of the charges. They did not raise any allegation of more serious or different conduct by the appellant. The jury was told that the evidence was led to illustrate the degree of dominance the appellant had over V as explaining her submission to him.
In relation to the uncharged acts the judge gave what I regard as an unexceptional and comprehensive direction, which I know is taken from the local bench book. He outlined both the proper and the impermissible uses of the evidence. I do not consider that more was required. Indeed, I do not understand what more, on the appellant’s argument, the judge was required to say in relation to the permissible and impermissible uses of the discreditable conduct involved in any of the acts. As I observed earlier, it is often not necessary to give such directions in relation to charges which contain very similar allegations unless some of the evidence is not admissible in relation to other counts. I have found that in this case it was not necessary. It tends to follow that nothing more was required in respect of the uncharged acts.
I consider that this ground contains no argument of any substance.
Conclusion
I have reached the view that none of the grounds of appeal contain arguments of substance. Although several of the grounds of appeal were couched as raising matters of law, even the most superficial examination shows that they were not.
The appeal should be dismissed.