R v Dennis - [2010] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DENNIS
[2010] SASC 69
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
31 March 2010
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS
Applicant tried by a judge sitting alone in the District Court on sexual charges arising from the 1980s against two male complainants unknown to each other - whether the trial judge had acted on an inaccurate version of the applicant's evidence to discredit the applicant - whether the judge should have directed himself in terms of the use of lies going to consciousness of guilt - whether the judge was correct in his treatment of the distressed demeanour of one of the complainants in the witness box.
Held: permission to appeal granted on one ground only and appeal dismissed.
Observations by Vanstone J as to the judge's ruling that the evidence of each complainant was not admissible in respect of the charges based on the other complainant's evidence.
R v Keyte (2000) 78 SASR 68; Question of Law Reserved on Acquittal No 1 of 1993 (1993) 59 SASR 214, applied.
R v Mitchell (unreported CCA(NSW) 5 April 1995, BC 9504682), distinguished.
R v Mayberry [2000] NSWCCA 531, not followed.
Edwards v The Queen (1993) 178 CLR 193; R v Barrowman (2007) 96 SASR 294; R v Beard [2004] SASC 411; R v Liddy (2002) 81 SASR 22; Hoch v The Queen (1988) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461, discussed.
R v Schlaefer (1984) 37 SASR 207; KRM v The Queen (2001) 206 CLR 221; R v Von Heytmanek (2006) 96 SASR 97, considered.

R v DENNIS
[2010] SASC 69
Court of Criminal Appeal: Nyland, Vanstone and Kourakis JJ

NYLAND J: I have read the reasons of Vanstone J. I agree with her observations on the question of cross-admissibility. The Trial Judge discussed the correct approach to this topic when he delivered his ruling on 18 August 2009 and declined to sever the counts. Like Vanstone J, I do not understand why the Judge then took a different approach when he delivered his reasons for the verdict. I agree that the appeal should be dismissed for the reasons expressed by Vanstone J and I agree with the orders that she proposes.
VANSTONE J. The applicant, Wilfred Edwin Dennis, was tried by a judge sitting alone in the District Court on three charges of indecent assault and one each of gross indecency and carnal knowledge. The charges arose from the period November 1972 to October 1975, when the applicant was an Anglican priest. There were two complainants, but there is nothing to suggest that they were known to each other. Each additionally alleged uncharged conduct. In the course of his reasons for verdict, the judge ruled that the evidence as to the charges concerning the one complainant were not admissible in relation to the charge concerning the other. He then acquitted the applicant of those charges which concerned the boy referred to as C1. He convicted the applicant of the fifth count, one of carnal knowledge, committed upon the boy referred to as C2. Thus the appeal of the applicant relates to his conviction on that count.
The matter came before single judge of this Court upon an application for permission to appeal. At that time the original appeal notice was amended, so as to substitute eight proposed grounds of appeal. These were well particularised. Argument in respect of permission to appeal was supported by a substantial outline of argument filed on behalf of the applicant. This document provided extensive reference to the transcript of the trial, as well as to authorities said to support the argument. The single judge heard full oral argument in support of the application. Indeed, the same counsel who appeared before the single judge also appeared in this Court. The judge ruled that notwithstanding the detailed and careful analysis of the reasons of the trial judge, she was not persuaded that any of the points identified were reasonably arguable. Therefore the matter comes before this Court as a further application for permission to appeal. Before this Court two additional grounds were proposed.
I would allow amendment of the Notice of Appeal to add the two additional proposed grounds. However, in my view, of all of the grounds advanced, only ground 2 is reasonably arguable, and even there I would dismiss the appeal. Because of the history of the matter, as outlined, I intend to provide concise reasons for my decision.
Notwithstanding that there is no prosecution appeal, I shall also say something further about the ruling that there was no “cross-admissibility” as between all the charges.
Proposed grounds 2 and 3
It is asserted that the judge’s rejection of the applicant’s evidence was based, in part, on misunderstandings of what the applicant said about the altar boys’ timetable prior to Sunday morning services and, perhaps as well, about the evidence of C2 going to the amount of time usually spent with the applicant prior to Sunday services and whether C2 claimed any misconduct by the applicant during that period.
The evidence of C1 was that over a period of time sexual activity occurred between himself and the applicant prior to the eight o’clock Sunday services at St Martin’s Church at Campbelltown. He said that he would be required to attend at the church about a half an hour before the service to assist the applicant to robe. C2 did not allege any impropriety on corresponding occasions at St Barbara’s Church, Parafield Gardens, but he did say that he had to be at the church well ahead of the service. His father said he was required to report there between 20 and 30 minutes before the service. Against that evidence, the applicant said that the altar boys at St Barbara’s arrived “only a quarter of an hour” before the service commencement and pointed out that there were plenty of other people about the place. The judge incorrectly attributed to the applicant a statement that C2 only had to report about ten minutes before the service. He then went on to discredit the applicant saying that this was false and an attempt to minimise time spent alone with C2. It is noteworthy that C2’s allegations were that misconduct occurred after such services, rather than before them.
In my view, while it is true that the judge apparently acted on an inaccurate version of the applicant’s evidence and used that version against him, I do not think that the error was such as to detract from the conclusion of the judge, namely that the applicant had sought to minimise opportunity for intimacy with C2. Even on the correct version of the applicant’s evidence, there was a clear contrast with the evidence of C2 and his father. In addition there was a potential parallel between the evidence of the two complainants, about which the applicant might have been very sensitive. C1 said that counts 1 and 2 had occurred in about the half hour prior to Sunday morning services. He was required to attend at 7.30am to prepare for the eight o’clock service. The applicant might well have felt vulnerable in the face of the prosecution evidence of C2 and his father which suggested that for no particular reason, C2 was required to attend quite some time before the commencement of the Sunday morning services.
The applicant also complains about a view taken by the trial judge that in the witness box the applicant had invented a suggestion that C2 might have “shrunk” since the time when they knew each other when C2 was about 15 years of age. The judge said that this occurred in response to a “forensic predicament from which [the applicant] had no escape”. The topic seems to have been relevant to the question of whether C2 assisted the applicant in robing or disrobing before or after church services. Under cross-examination the applicant suggested that at the relevant time C2 was about the same size as he himself. The cross-examiner put to him that even at the time of the trial C2 was shorter than the applicant. At that point the applicant said: “Perhaps he shrunk”.
In my view the judge was entitled to take a dim view of this evidence, whether or not he saw it as flippant, or defensive. Whatever the precise purport of the line of cross-examination, at best, the applicant’s evidence about C2’s then height was inaccurate and, at worst, it was demonstrated to have been dishonest. The importance of the interchange was that the applicant had been shown to be wrong on a matter obliquely relevant to an important topic, being the dispute about whether C2 had been required to help with robing. In those circumstances, the judge was entitled to use the interchange as a matter detracting from the applicant’s credibility; and that is the way he used it.
Ground 3 asserts that the way in which the judge used the conclusions he drew about both the topics of evidence just discussed should have resulted in the judge directing himself in terms of the use of lies going to consciousness of guilt, in accordance with Edwards v The Queen (1993) 178 CLR 193.
In my view, even if a judge sitting alone might need to give such a direction to himself (which need not be discussed at present) there was no occasion in this trial to remind himself of it. The prosecution did not suggest that there was any lie which might have emanated from a consciousness of guilt; nor did the judge use any suggested lie in that way. Indeed, it would have been highly unusual to put a lie told in the witness box to such a use. The use properly made by the judge of these passages was in evaluation of the applicant’s credibility.
Proposed ground 4
The applicant argues that the judge misdirected himself in finding that the evidence of C2 was “supported to a small extent” by the evidence of C2’s father, there being no evidence amounting to corroboration. As framed, the ground seems to assume, wrongly, that there can be no evidence which supports a victim’s evidence, short of corroboration.
The judge correctly found that there was no corroboration of C2’s evidence, but considered that the evidence of C2’s father confirmed that there was opportunity for the offending to have occurred after church services had finished, as indeed C2 claimed they had. I do not consider that the analysis of the judge on this issue is flawed.
Proposed ground 5
This is a complaint that the judge misused evidence given by C2 as to his reasons for making a complaint against the applicant some years after the offending.
The activity which gave rise to count 5 was said to have occurred between 4 October 1975 and 1 January 1977. The evidence of C2 was that he first reported the matter in about 2004, as a result of seeing a television program about sexual abuse committed by another Anglican minister. None of this evidence was the subject of an objection by defence counsel, but upon the appeal it was suggested that the evidence was irrelevant and inadmissible. I would prefer to leave to one side the question of what ruling should have followed, had the evidence been objected to at trial. We have not heard full argument as to that question. But once the evidence about what led to a complaint was given, then it could only have been used as relevant to the credibility of C2. As counsel for the respondent put it, it enabled a proper assessment to be made of whether the delayed complaint impacted adversely upon C2’s credit. In fact, the judge was clearly impressed by C2’s demeanour when relating his reaction to the television program, as the judge specifically referred to it. I see no difficulty in his having used the evidence in this way.
Proposed grounds 6 and 10
These grounds assert that the judge misused and misdirected himself about distress shown by C2 in the witness box. It is said that the judge should have directed himself about how such observations might affect assessment of the credibility and reliability of C2. It is further put that in circumstances where C2 told the judge that prior to his dealings with the applicant he had been sexually abused by two other men, the judge should have been wary about making any use of the apparent distress, as it could have related to the activities of those other men. Furthermore, it is put that the judge failed to alert counsel to the observations he had made of C2’s demeanour (except in a very general way) and thereby failed to give the applicant’s then counsel opportunity to counter any proposed use of it. Then, it was put that, by parity of reasoning with the cases dealing with whether distress of a victim at the time of, or shortly after, a claimed sexual assault, could amount to corroboration and the directions properly given to a jury to inform its evaluation of such evidence, the judge should have warned himself to be cautious in placing any weight on C2’s appearance of being distressed.
In his reasons the judge made clear that the distress which he observed during C2’s evidence accompanied C2’s account of sexual abuse by the applicant. There was no particular reason to entertain the possibility that the distress related, not to the events then being described, but to other events.
Distress is merely an aspect of demeanour. Counsel, like the judge, have ample opportunity to observe the way in which witnesses give their evidence. If something irregular occurs which the judge perceives might have resulted in his having opportunity to see some action or appearance of the witness not visible to counsel, or if the judge is able to hear something which he or she apprehends may not have been audible to counsel, then it would be prudent to alert counsel to what was seen or heard. But there was no suggestion of that in this case. Therefore, there was no necessity for the judge to forecast to counsel the way in which he was proposing to, or ultimately did, take into account C2’s demeanour.
I do not think it is helpful to compare the tribunal’s use of the appearance of a witness giving evidence with testimony describing the appearance of a victim soon after an alleged offence. The cases concerned with the possible use of distress as corroboration approach this issue from quite a different standpoint.
A further aspect of this combination of proposed grounds concerns a suggestion that the judge misled counsel into thinking that no weight would be placed on the demeanour of the complainants. During the final address of counsel for the prosecution there was an exchange between that counsel and the judge on the topic of C2’s presentation. Counsel had suggested that C2’s evidence was “heartfelt and emotional”. In the course of the exchange the judge said this:
Judging truth on the basis of demeanour is a very dangerous and fickle business. Witnesses can be just nervous and all sorts of reasons and speaking for myself anyway I don’t decide cases on demeanour, I think it’s better off looking for objective facts and drawing inferences on solid bases and so on, but I have to say in open court that there were times in [C2]’s evidence where to try and capture it it was fairly poignant, closed eyes during the difficult parts at times, head up in the air or down –that’s probably what you had in mind I expect but I think it’s best to articulate it … it’s something you never pick up from the transcript in a hundred readings but I noticed anyway and it would seem significant he seemed to be in pain, whatever the underlying reason – mental pain I mean.
Subsequently the applicant’s counsel addressed the judge. He referred to this exchange and suggested that, to the extent that C2’s appearance might have, in effect, indicated truthfulness, it could have been referable to his treatment at the hands of the other two, earlier, abusers.
I would make two points. The first is that although the judge said that he preferred to decide cases on the basis of objective facts, rather than upon demeanour, he went on to express the view that C2’s demeanour had been telling. Defence counsel was not misled into thinking that he need not address the topic of demeanour. On the contrary, he confronted the issue and sought to deal with it.
In my view there is no reasonable argument on these grounds.
Proposed ground 7
The applicant complains that the judge did not give adequate consideration to the defence suggestion that C2’s evidence and his presentation in giving it was explicable on the basis that he had been sexually abused by one of his uncles and a bandmaster. As already touched on, defence counsel suggested that this quite separate sexual abuse by others might have accounted for what was admitted on all sides to be the “rather convincing” way in which he gave his evidence about count 5.
The judge specifically referred to counsel’s submission that C2’s distress might have been a consequence of abuse by the other men. He rejected that possibility. He found C2’s evidence to be reliable and accurate. I consider that the judge’s analysis was careful and thorough. I do not consider he was required to say more.
Proposed grounds 8 and 9
The applicant complains that the judge failed to give adequate reasons for rejecting his evidence as to count 5 and for preferring the evidence of C2. He particularly refers to a statement made by the judge in his conclusion to the effect that the denials of the accused were “incredible”.
A judge sitting alone is not required to refer to every argument put at trial and nor is the judge required to explain each step in his reasoning process and give detailed findings on all issues of fact: R v Keyte (2000) 78 SASR 68 at [48] and [54]. In this matter, as I have observed, the judge gave comprehensive and detailed reasons for his findings. The basis upon which he found himself persuaded by the prosecution evidence on count 5 is, in my view, very clear.
I take the judge’s reference to denials being “incredible” to relate back to an expression used in Question of Law Reserved on Acquittal No 1 of 1993 (1993) 59 SASR 214 at 218 adverting to the difficulty of convicting in a situation where it was “oath against oath”. There, the former Chief Justice was advising that although in a case of “oath against oath” the jury should be reminded of the difficulty in arriving at a conclusion of guilt beyond reasonable doubt, it should also be told that the victim’s evidence could be “so convincing and the accused’s denials so incredible” that such a state of mind could be reached. Here, I do not understand the judge as meaning that the applicant’s denials were incredible in the sense of preposterous; rather that upon analysis they were not worthy of credit.
In a case where a witness and an accused person give evidence which cannot stand together and where it is plain that one witness must be lying, it is often difficult for a tribunal to express reasons for preferring the one account to the exclusion of the other: R v Barrowman (2007) 96 SASR 294 at [4] and R v Beard [2004] SASC 411 at [13]. In this case the judge did find support for C2’s evidence in what he found to be the applicant’s deliberate misstatement of the routine followed in the half hour or so leading up to Sunday morning services. However, ultimately the judge found the complainant’s evidence to be convincing. I do not consider that more explanation was required.
Proposed ground 1
This proposed ground asserts that the verdict on count 5 is unsafe and unsatisfactory. The applicant here relies on the arguments put in support of grounds 2 to 9. Since I have found nothing of substance in those arguments, this ground must fail.
Observations as to Cross-admissibility

I would add that, in my view, the applicant was fortunate indeed that the judge determined that the evidence of each complainant was not admissible in respect of the charges based on the other complainant’s evidence. It appears that at the commencement of the trial the judge was asked to make an order that the accused be tried separately on the charges based on the evidence of each complainant. He was not prepared to make that order and gave written reasons for making a ruling that the two sets of charges could be heard together. He referred to several authorities, including, relevantly, R v Liddy (2002) 81 SASR 22 and observed that on the face of material before him the prosecution case was “capable of demonstrating the necessary high degree of probative value”, by way of the improbability of the coincidence of two similar allegations being made unless true. These were indeed the governing principles.
It was only in his reasons for verdict that he ruled [53] that the evidence of one complainant could not be used in proof of the guilt of the accused on charges relating to the other complainant. He referred there to R v Mitchell (unreported, NSWCCA, 5 April 1995) and R v Mayberry [2000] NSWCCA 531 at [54].
There is no appeal by the Director of Public Prosecutions against the acquittal of the applicant in relation to the charges concerning C1. For that reason we did not hear argument on this matter. Notwithstanding that, I propose to say something about the judge’s treatment of the question of cross-admissibility, in case it might be thought that this Court has implicitly approved of the ruling the judge made.
In dealing with the issue, the judge said this:
⁵³Fundamentally, every element of each charge must be proved to the criminal standard. As a general consideration the evidence in support of one charge is not admissible as proof of the other charges: R v Schlaefer (1984) 37 SASR 207 at 210. The evidence led in support of one count cannot be treated as tending to prove an inclination in the accused towards the relevant conduct, or that he is the kind of person who was likely to have done so on the occasions charged: KRM v The Queen (2001) 206 CLR 221 at [36]. Moreover in a case such as this where there are multiple counts based on the evidence of two complainants, the evidence of one complainant cannot be used towards proof of the guilt of the accused of the offences involving the other complainant, so that each must be considered quite separately: R v Mitchell Unreported CCA[NSW] 5 April 1995, BC 9504682 at 4; R v Mayberry [2000] NSWCCA 531 at [54].
In my view, none of the authorities cited, Schlaefer, KRM or Mitchell support the ruling of the judge, that in a case such as this the evidence of one complainant cannot be used in proof of guilt of the accused on counts involving the other complainant. An examination of Mayberry’s case demonstrates that it proceeded on a particular view of Mitchell’s case, with which I would not agree. I deal with the authorities given by the judge in turn.
I start with the general proposition that all evidence which is relevant to a charge is admissible, unless rendered inadmissible by an exclusionary rule. One such exclusionary rule is that related to propensity evidence. However, that rule only operates to exclude otherwise relevant evidence where that evidence cannot satisfy the requirement of a high degree of probative value: Hoch v The Queen (1988) 165 CLR 292 and Pfennig v The Queen (1995) 182 CLR 461. The judge’s reference to a passage in Schlaefer’s case is a reference to statements of principle by King CJ which do not justify the proposition made by the trial judge and set out above. What King CJ stated was that where, upon a trial, evidence against the accused was admissible with respect to some, but not all, charges, the trial judge was required to direct the jury as to the permissible and impermissible uses which could be made of the evidence. That statement is, of course, correct, but it is directed to what needs to be done in terms of directions once questions of admissibility have been determined.
The reference by the judge to a passage in KRM concerns quite a different topic. It occurs in the judgment of McHugh J and deals with what has become known as the “separate consideration warning”. The separate consideration direction is one which is required in any case where the accused faces more than one count. As I endeavoured to point out in R v Von Heytmanek (2006) 96 SASR 97 at 102, that direction is not given for the purpose of quarantining certain bodies of evidence from use in relation to other charges. Rather, it is given to ensure that in the final analysis the jury pays appropriate attention to the question whether each element of each charge is proved beyond reasonable doubt. In KRM, McHugh J took the view that, even though there was no specific direction on the permissible and impermissible uses of what could be classified as propensity evidence, because of the exacting terms of the separate consideration direction given, the jury would not have misused the evidence of offending on other occasions. There, the charges were of maintaining a sexual relationship with a child, together with seventeen other counts of specific sexual offences against the same child. As is apparent, the observations of McHugh J were directed to a case where all the charges against the accused were based on the evidence of one victim. They have no particular relevance here.
I turn then to the case of Mitchell. The judgment of the New South Wales Court of Criminal Appeal was written by Gleeson CJ, as he then was. The facts of the matter are quite unusual and the decision turns on the way the case was conducted on behalf of the accused’s counsel and a ruling by the trial judge, which Gleeson CJ emphasised was not the subject of appeal. The two complainants were the daughters of a woman who lived with the appellant. Defence counsel did not make any application for a separate trial in respect of the two complainants. The daughters were aged ten and eleven years. Each girl gave evidence in support of two charges of aggravated indecent assault committed upon her. The defence was that the complaints were concocted at the behest of the girls’ father. The trial judge heard argument as to the directions he might give going to the use of the evidence of one child in relation to the charges involving the other. Particular emphasis was given to the issue of collusion and the High Court’s decision in Hoch v The Queen. Counsel for the prosecution invited the judge to rule that all the evidence was admissible in proof of all the charges. The judge declined to make such a ruling. He found that there was sufficient material which might lead the jury to conclude that there was collusion. Accordingly he ruled that the evidence of each child could not be used in support of the evidence of the other.
As mentioned, this ruling was not challenged upon appeal by the prosecution. Therefore the appeal was argued on the basis that the evidence was not cross-admissible. Gleeson CJ held that, in those circumstances, the judge was obliged to warn the jury in clear terms against using the evidence of one complainant in proof of the guilt of the appellant of the offences involving the other complainant. Gleeson CJ held that, contrary to the prosecution’s argument on appeal, the direction given to the jury as to separate consideration of all the charges could not save the convictions. That direction did not prohibit the jury from considering the totality of the evidence in the case on each charge. Thus it can be seen that, because the judge’s ruling was not under appeal, this case says nothing to prohibit use of evidence as similar fact evidence or propensity evidence and indeed says nothing about whether, in the generality of cases, where more than one complainant gives evidence of offences, evidence given by the members of one family, or by friends, or indeed, by altar boys, might amount to similar fact evidence.
I digress to say that the important point which emerges from Mitchell’s case is, in my mind, a different one. That is, it clearly makes the distinction between directions going to the use of similar fact evidence as contemplated by King CJ in Schlaefer’s case, as against the separate consideration direction, which is given in any case involving multiple counts.
Accordingly, the case is not authority for the proposition made by the judge in the case on appeal, namely that “where there are multiple counts based on the evidence of two complainants, the evidence of one cannot be used towards proof of the guilt of the accused of the offences involving the other …”.
Mayberry’s case, too, must be confined to its own facts. There, a number of counts of sexual assault were based on the evidence of two stepsons. It does not appear that there was any application for separate trials, nor any ruling at any stage that the charges relating to the one boy were not admissible in respect of the charges concerning the other. All the evidence was heard by the jury. Again, the defence argued that the charges arose from collusion. Prior to the summing up, counsel and the judge discussed the appropriate directions. It appears that prosecuting counsel accepted that, in view of the allegation of collusion, the jury should be warned against misuse of one boy’s evidence on the other’s charges: [27-29]. He suggested that the judge should also warn the jury against employing propensity reasoning. It seems from the report that the appeal court implicitly accepted the correctness of the prosecutor’s position. As I understand the decision, accepting that premise, the Court held that, following Mitchell, the judge was required to warn the jury that the evidence given by one complainant could not be used in proof of the charges alleged by the other.
With great respect to the Court, the decision appears to attribute to Mitchell a principle for which it does not stand. The Court in Mayberry seems to accept without question, that although the appellant could build his defence on the foundation of collusion, the rejection of collusion by the jury could not open the way for the jury to use the evidence of one stepson in proof of the charge concerning the other. It seems to accept that any suggestion of collusion must lead to a direction that there can be no use of one complainant’s evidence in support of the other’s. Mitchell did not decide that. In Mayberry the accounts had undoubted similarities. Once both accounts were before the jury, it should have been left to the jury to evaluate them, albeit with appropriate advice as to the manner in which concoction could rob the similarities in the stepsons’ evidence of any probative force. In any event, for present purposes, the important thing is that, built into the decision, is the apparent concession by the prosecution that, due to the possibility of collusion, there was no cross-admissibility.
In the case on appeal there was no issue of collusion and no concession by the prosecution. With great respect to the judge, I do not follow his reasons for the ruling he made. The correct principles were referred to by the judge at the time of his earlier ruling and I do not understand why they were abandoned. I only make the point that in my view the applicant was dealt with, in this respect, in an extremely favourable manner by the trial judge. Although I have not needed to take this into account on the ground suggesting the verdict is unsafe, it could well have been so used.
Apart from the matters raised by ground 2, I find no substance whatever in the complaints.
Accordingly, I would make the following orders:
1.amend the Notice of Appeal to incorporate grounds 9 and 10;
2.grant permission to appeal on ground 2, but refuse permission on all other grounds;
3. dismiss the appeal.
KOURAKIS J: I agree with the orders proposed by Vanstone J and with her Honour’s reasons.